Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 1 of 33 PageID 1246

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JANE DOE NO. 1, JANE DOE NO. 2,
and JANE DOE NO. 3,
Plaintiffs,

§
§
§
§
§
vs.
§ CIVIL ACTION NO. 3:20-cv-00106-M
§
TEXAS CHRISTIAN UNIVERSITY,
§
DR. DIANE SNOW, DR. ANDREW
§
SCHOOLMASTER, DR. ROB GARNETT,
§
JURY DEMAND
DR. DARRON TURNER,
§
RUSSELL MACK, LEIGH HOLLAND
§
and AARON CHIMBEL,
§
Defendants.
§
____________________________________________________________________________
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT AND
OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 2 of 33 PageID 1247

Table of Contents
A.

PREFATORY .......................................................................................................................... 8

B.

ARGUMENT ........................................................................................................................ 10
I.

JANE DOES NOS. 1, 2 AND 3 OBJECT TO DEFENDANTS’ ATTEMPT TO CONVERT THEIR
MOTIONS INTO A RULE 56 MOTION FOR SUMMARY JUDGMENT. .......................................... 10
II. AARON CHIMBEL HAS MINIMUM CONTACT WITH TEXAS SUFFICIENT TO ESTABLISH
PERSONAL JURISDICTION AND THEREFORE HIS 12(B)(2) MOTION TO DISMISS SHOULD BE
DENIED. .............................................................................................................................. 11
a. Standard of Review for 12(b)(2) Motions to Dismiss. .................................................. 11
b. Aaron Chimbel is a resident of the State of Texas. ....................................................... 13
c. Aaron Chimbel has minimum contacts with the State of Texas subjecting him to
personal jurisdiction that comports with the traditional notions of fair play and
substantial justice........................................................................................................... 14
d. Aaron Chimbel’s actions confer Texas Courts Specific Jurisdiction over him............. 15
III. TCU AND DEFENDANTS’ MOTIONS TO DISMISS SHOULD BE DENIED BECAUSE PLAINTIFFS
HAVE SUFFICIENTLY PLED FACTS TO STATE PLAUSIBLE FEDERAL AND STATE LAW CLAIMS.
........................................................................................................................................... 16
a. Standard of Review for 12(b)(6) Motions to Dismiss. .................................................. 16
b. .. Jane Does Nos. 1, 2 and 3 have sufficiently alleged facts to support their Title VI, IX,
Title III of ADA and Section 504 claims against TCU. ................................................ 18
i. Jane Does Nos. 1, 2 and 3 have adequately pled their Title VI and Title IX claims. .... 18
ii. Jane Does Nos. 1 and 3 have adequately pled their ADA Title III and Section 504 of
the Rehabilitation Act Claims ....................................................................................... 21
iii. Jane Doe No. 1 has adequately pled pay discrimination under Title VII against TCU. 23
iv. Jane Does No. 1 has adequately pled fraud and violations of the DTPA. ..................... 24
c. Jane Does Nos. 1, 2, and 3 adequately pled their claim for negligence. ....................... 26
d. Jane Does Nos. 1 and 2 adequately allege that they were assaulted. ............................ 28
e. Jane Does Nos. 1, 2, and 3 adequately allege that the Defendants intentionally inflicted
them with emotional distress. ........................................................................................ 29
f. Jane Doe No. 1 adequately allege that she was falsely imprisoned. ............................. 30
g. Jane Does Nos. 1 adequately allege that Defendants engaged in Conspiracy. .............. 31
C.

CONCLUSON AND PRAYER ............................................................................................ 32

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 2

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 3 of 33 PageID 1248

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 3

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 4 of 33 PageID 1249

TABLE OF AUTHORITIES
CASES
Ainsworth v. Moffett Engineering, Ltd.,
716 F.3d 174, 177 (5th Cir.2013) .............................................................................................. 12
Alexander v. Sandoval,
532 U.S. 275, 280 (2001) .......................................................................................................... 16
Amstadt v. U.S. Brass Corp.,
919 S.W.2d 644, 650 (Tex.1996) .............................................................................................. 22
Asahi Metals Indus. Co. v. Superior Court,
480 U.S. 102, 112 (1987) .......................................................................................................... 11
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) .................................................................................................... 15, 16
Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996) ............................................................................................... 15
Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) .......................................................................................................... 15
Bennett-Nelson v. Louisiana Bd. of Regents,
431 F.3d 448, 454 (5th Cir. 2005) ............................................................................................. 20
Boyd v. Tex. Christian Univ.,
8 S.W.3d 758, 760 (Tex. App. – Fort Worth 1999, no pet.)...................................................... 25
Burger King Corp. v. Rudzewicz,
471 U.S. 462, 477, (1985) ......................................................................................................... 12
C.W. v. Zirus,
No. SA-10-CV-1044-XR, 2012 U.S. Dist. LEXIS 122560, at *9 (W.D. Tex. Aug. 29, 2012) 25
Campbell v. City of San Antonio,
43 F.3d 973, 975 (5th Cir. 1995) ............................................................................................... 16
Cent. Freight Lines, Inc. v. APA Transp. Corp.,
322 F.3d 376, 380 (5th Cir.2003) ........................................................................................ 10, 12
Chance v. Rice Univ.,
984 F.2d 151, 153 (5th Cir. 1993) ............................................................................................. 17
Creditwatch, Inc. v. Jackson,
157 S.W.3d 814, 816 (Tex.2005) .............................................................................................. 29
CSR Ltd. v. Link,
925 S.W.2d 591, 595 (Tex. 1996) ............................................................................................. 14
Doe v. Boys Clubs,
907 S.W.2d 472, 478 (Tex.1995) .............................................................................................. 22
Dorsey v. Portfolio Equities, Inc.,
540 F.3d 333, 338 (5th Cir. 2008) ............................................................................................... 9
ERI Consulting Eng'rs, Inc. v. Swinnea,
318 S.W.3d 867, 881 (Tex.2010) .............................................................................................. 33
Estate of Lance v. Lewisville Indep. Sch. Dist.,
743 F.3d 982, 990 (5th Cir. 2014) ....................................................................................... 16, 20
Eviro Petroleum, Inc. v. Kondur Petroleum,
79 F.Supp.2d 720, 725 (S.D.Tex.1999) ..................................................................................... 11
Fennell v. Marion Independent School Dist.,
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 4

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 5 of 33 PageID 1250

2014 WL 4274299, at *15 (W.D. Tex., Aug. 28, 2014)............................................................ 17
Fennell v. Marion Independent School Dist.,
804 F.3d 398, 398 (5th Cir. 2015) .............................................................................................. 17
Financial Acquisition Partners v. Blackwell,
440 F.3d 278, 286 (5th Cir. 2006) ............................................................................................... 8
Firestone Steel Prods. v. Barajas,
927 S.W.2d 608, 614 (Tex.1996) .............................................................................................. 32
Greater Hous. Transp. Co. v. Phillips,
801 S.W.2d 523, 525 (Tex. 1990). ........................................................................................... 25
GTE Sw., Inc., v. Bruce,
998 S.W.2d 605, 618 (Tex.1999) .............................................................................................. 30
Gundle Lining Const. Corp. v. Adams Cty. Asphalt, Inc.,
85 F.3d 201, 205 (5th Cir. 1996) ............................................................................................... 10
Hall v. Sonic Drive-In of Angleton, Inc.,
177 S.W.3d 636, 650 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) .................................. 28
Hanson v. Denckla,
357 U.S. 235, 253 (1958) .......................................................................................................... 12
Haygood v. Chandler,
No. 12-02-00239-CV, 2003 WL 22480560 (Tex.App.—Tyler 2003, pet. denied) .................. 29
Hersh v. Tatum,
526 S.W.3d 462, 468 (Tex. 2017) ............................................................................................. 30
International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) .......................................................................................................... 12
Jackson v. Birmingham Board of Education,
544 U.S. 167, 184 (2005) .......................................................................................................... 15
Jones v. Petty-Ray Geophysical Geosource, Inc.,
954 F.2d 1061, 1067 (5th Cir.1992) .......................................................................................... 10
Lormand v. US Unwired, Inc.,
565 F. 3d 228, 232 (5th Cir. 2009) ............................................................................................ 16
Luv N' Care, Ltd. v. Insta-Mix, Inc.,
438 F.3d 465, 469 (5th Cir.2006) .............................................................................................. 10
Marathon Oil Co. v. A.G. Ruhrgas,
182 F.3d 291, 295 (5th Cir.1999) .............................................................................................. 10
Marvin H. v. Austin Indep. Sch. Dist.,
714 F.2d 1348, 1356 (5th Cir.1983) .......................................................................................... 21
Massey v. Armco Steel Co.,
652 S.W.2d 932, 934 (Tex.1983) .............................................................................................. 33
Mengistu v. Mississippi Valley State Univ.,
716 F. App'x 331, 333–34 (5th Cir. 2018) ................................................................................ 22
Moki Mac River Expeditions v. Drugg,
221 S.W.3d 575, 576 (Tex. 2007) ............................................................................................. 14
Morgan v. Anthony,
27 S.W.3d 928, 929 (Tex.2000) ................................................................................................ 29
Morgan v. Hubert,
335 F. App’x 466, 470 (5th Cir. 2009) ...................................................................................... 15
Patel v. Holiday Hosp. Franchising, Inc.,
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 5

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 6 of 33 PageID 1251

172 F. Supp. 2d 821, 824 (N.D. Tex. 2001) ............................................................................. 23
Prudential Ins. v. Jefferson Assocs.,
896 S.W.2d 156, 161 (Tex.1995) .............................................................................................. 23
Randall's Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644-645 (Tex.1995) ....................................................................................... 31
Retamco Operating, Inc v. Republic Drilling Co.,
278 S.W.3d 333, 338 (Tex. 2009) ............................................................................................. 14
Sanches v. Carrollton–Farmers Branch Indep. Sch. Dist.,
647 F.3d 156, 165 (5th Cir.2011) .............................................................................................. 17
Sears, Roebuck & Co. v. Castillo,
693 S.W.2d 374, 375–76 (Tex.1985) ........................................................................................ 31
Smith v. Bd. of Commissioners of Louisiana Stadium & Exposition Dist.,
385 F. Supp. 3d 491, 504 (E.D. La. 2019) ................................................................................ 20
Taylor v. United Parcel Serv., Inc.,
554 F.3d 510, 522–23 (5th Cir. 2008) ....................................................................................... 22
Texas Farm Bur. Mut. Ins. v. Sears,
84 S.W.3d 604, 610 (Tex.2002) .......................................................................................... 29, 30
Timberwalk Apartments, Partners, Inc. v. Cain,
972 S.W.2d 749 (Tex. 1998) ..................................................................................................... 25
Toles v. Toles,
45 S.W.3d 252, 260 (Tex.App.—Dallas 2001, pet. denied)...................................................... 29
Tuchman v. DSC Commc'ns Corp.,
14 F.3d 1061 (5th Cir. 1994)..................................................................................................... 23
Wal-Mart Stores v. Odem,
929 S.W.2d 513, 530 n.9 (Tex.App.—San Antonio 1996, writ denied) ................................... 31
Wal-Mart Stores v. Rodriguez,
92 S.W.3d 502, 506 (Tex.2002) ................................................................................................ 31
Washington v. Knight,
887 S.W.2d 211, 216 (Tex.App.—Texarkana 1994, writ denied) ............................................ 29
Watson ex rel. Watson v. Jones Cnty. Sch. Dist. ex rel. Jones Cnty. Sch. Bd. of Educ.,
No. 2:07cv100-KS-MTP, 2008 WL 4279602, at *11 (S.D. Miss. Sept. 11, 2008)................... 17
Williams v. WMX Technologies Inc.,
112 F.3rd 175, 179 (5th Cir., 1997) ............................................................................................ 22
STATUTES
20 U.S.C. § 1681(a) ....................................................................................................................... 16
29 U.S.C. § 794(a) ......................................................................................................................... 20
42 U.S.C. § 12102 ................................................................................................................... 20, 21
42 U.S.C. § 2000d ......................................................................................................................... 16
Tex. Bus. & Com. Code § 17.50(a) ............................................................................................... 22
Tex. Pen. Code § 20.01(1) ............................................................................................................. 31
Tex. Penal Code Ann. § 22.01(a) .................................................................................................. 28
Tex. Tax Code Ann. § 11.13 ......................................................................................................... 11
OTHER AUTHORITIES
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 6

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 7 of 33 PageID 1252

4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE § 1067.5 (3d ed.2002). ............................................ 14
RULES
FED. R. EVID. 702-706 ..................................................................................................................... 9

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 7

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 8 of 33 PageID 1253

TO THE HONORABLE JUDGE OF SAID COURT:
Comes Now, Plaintiffs, Jane Doe No. 1, Jane Doe No. 2 and Jane Doe No. 3 and file this,
their Objection to Conversion to Summary Judgment and Omnibus Response to Defendants’
Motions to Dismiss [Dkt. Nos. 23-36] and respectfully show this Court as follows:
A. PREFATORY
Defendants’ various Motions to Dismiss (collectively, the “Motions”) are merely their
attempt to misrepresent the facts and confuse the issues before the Court. Even Defendants’
attempts to isolate Jane Does Nos. 1, 2 and 3’s factual allegations and claims by filing their several
muddled—and at times incoherent—Motions are emblematic of TCU’s treatment of AfricanAmerican women on its campus; deploying evasive tactics rather than confronting, with any
sincerity, TCU’s insidious past and interrelated present hostility toward African-American women.
To be clear, this lawsuit is not about whether Jane Doe No. 1 plagiarized an assignment in
a “pass/fail” course, which she did not. Indeed, Jane Doe No. 1 has not asked this Court to review
or reverse the so-called “academic decision” resulting in receipt of no credit for the infamous
Washington, D.C. nightmare she suffered at the hands of TCU and its agents, chiefly Dr. Diane
Snow, who recently took “early retirement” from TCU. [Dkt. No. 44 Passim]1. Tellingly, TCU
fails to mention that Jane Doe No. 1 had already complained to TCU’s Title IX Office and
numerous TCU officials about her racist and sexist encounters at TCU and notified them that she
would be initiating this very lawsuit, all prior to her receiving said “academic decision”. [Dkt.
No. 44 at ¶¶ 127-128]. To now represent to this Court that Jane Doe No. 1’s lawsuit is based on
an “academic decision” that occurred after undersigned counsel informed TCU of its numerous

1

On June 26, 2020, this Court Ordered Jane Does Nos. 1, 2 and 3 to amend their Complaint to include Jane Doe No.
1’s Title VII claims as they were referenced in Defendants Motions challenging Plaintiffs’ First Amended Complaint.
[Dkt. No. 43]. Thus, all references to Plaintiffs’ Complaint herein are related to Plaintiffs’ Court ordered Complaint,
submitted on July 3, 2020. [Dkt. No. 44].
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 8

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 9 of 33 PageID 1254

violations against her—which TCU knows discovery will reveal—is both insulting and insincere.
In fact, TCU’s gross manipulation of the sequence of events is the very sort of conduct that makes
TCU’s “academic decision” clearly retaliatory in violation of federal law. [Dkt. No. 44 at ¶¶ 167172]. Put simply, Jane Doe No. 1 does not seek a review of said “academic decision”; rather, Jane
Doe No. 1 offers that fact to the Court in support, and as evidence of TCU’s discriminatory and
retaliatory response to her valid Title VI, VII and IX Claims, among others. [Dkt. No. 44 at ¶¶ 63131].
In reality, Texas “Christian” University has reached its day of reckoning—with students,
faculty and alumni all2 calling on TCU’s leadership to atone for their and TCU’s hateful behavior
towards racial minorities and women, and more specifically, African-American women like Jane
Does Nos. 1, 2 and 3. Indeed, this lawsuit is about whether TCU and its agents have a pattern and
practice of discriminating against racial minorities and women.
TCU’s 14 Motions do nothing but illustrate TCU’s deep commitment to preventing
this Court, Jane Does Nos. 1, 2 and 3 and the general public from discovering the truth and
extent of TCU’s deep hatred for minorities and women, including TCU’s infamous
endorsement of discrimination and the psychological and physiological abuse of AfricanAmerican women. Each of Defendants’ Motions attempt to convince this Court to dismiss Jane
Does Nos. 1, 2 and 3’s lawsuit by utilizing a legal standard that views the Complaint in the light
most favorable to Defendants rather than Jane Does Nos. 1, 2 and 3. Even still, however, Jane
Does Nos. 1, 2 and 3 have stated plausible claims against Defendants.
Indeed, Defendants’ own Motions highlight Jane Does Nos. 1, 2 and 3’s well-pled factual
allegations, which are deserving of (at the very least) discovery. Nearly every case cited in

2

[Dkt. No. 44 at ¶¶ 57-62].

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 9

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 10 of 33 PageID 1255

Defendants’ repetitive Motions—when they bothered to cite case law at all—eludes to a failure to
proffer evidence and suggests that Jane Does Nos. 1, 2 and 3 will fail on the merits—a standard
that is inappropriate and only bolsters the need for discovery and the continuation of this case.
B. ARGUMENT
I.

Jane Does Nos. 1, 2 and 3 Object to Defendants’ attempt to convert their Motions
into a Rule 56 motion for summary judgment.
Aaron Chimbel is a liar whose latest contribution to the conspiracy Jane Doe No. 1 has

adequately alleged against him is demonstrated by his apparent attempt to convert his purported
jurisdictional challenge into a selective Rule 56 summary judgment motion on behalf of himself
and his co-conspirator Defendants. Though Mr. Chimbel purports to attach an affidavit (albeit
false) and exhibits (albethey selective and improper) to his 12(b)(2) motion to dismiss for lack of
personal jurisdiction (which was simultaneously filed with the other Defendants’ Motions) in
support of his claim that he is not a resident of the State of Texas—which is a lie—even a cursory
review of the attached affidavit and exhibits reveal that they serve only to address the substantive
issues raised in his and the other Defendants’ 12(b)(6) Motions. [Dkt. No. 31]. Jane Does Nos. 1,
2 and 3 respectfully request that at this early stage of the proceedings the Court strike and disregard
the extraneous materials presented in the affidavit and exhibits and examine only the four corners
of Jane Does Nos. 1, 2 and 3’s Complaint. Financial Acquisition Partners v. Blackwell, 440 F.3d
278, 286 (5th Cir. 2006) (Generally a court ruling on a motion to dismiss may rely on the complaint
and its proper attachments). Accordingly, Jane Does Nos. 1, 2 and 3 hereby move to strike the
affidavit and exhibits allegedly filed “in-support-of” Defendants Rule 12(b)(2) motion, but in
reality, presented for the purposes of bolstering Defendants' Rule 12(b)(6) Motions. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“…the court reviews only the wellpleaded facts in the complaint, it may not consider new factual allegations…”)
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 10

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 11 of 33 PageID 1256

In the event, however, the Court decides to consider Mr. Chimbel’s affidavit and exhibits
and thereby convert Defendants’ Rule 12(b)(6) Motions into a Rule 56 motion, Jane Does Nos. 1,
2 and 3 hereby move the Court for a reasonable opportunity for limited discovery and to more fully
respond pursuant to Rule 12(d). Moreover, because Mr. Chimbel’s testimony offers expert
opinions regarding “plagiarism” in academia, among other expert conjectures related to the
substantive issues raised in Defendants’ Motions and Defendants have not qualified Mr. Chimbel
as an expert witness, Jane Does Nos. 1, 2 and 3 request the opportunity to voir dire and crossexamine Mr. Chimbel to determine his qualifications as an expert and his propensity for
truthfulness. [Dkt. 31 at ¶¶ 22-33]; see also FED. R. EVID. 702-706.
II.

Aaron Chimbel has minimum contact with Texas sufficient to establish personal
jurisdiction and therefore his 12(b)(2) Motion to Dismiss should be denied.
Aaron Chimbel is either lying to the State of Texas or to this Court, and in doing so he is

exhibiting the very behavior Jane Doe No. 1 has alleged against him in her Complaint. In either
case, however, Mr. Chimbel is properly before this Court.
a. Standard of Review for 12(b)(2) Motions to Dismiss.
A Rule 12(b)(2) motion challenges a court’s has personal jurisdiction over the defendant,
not the merits of a complaint. While the plaintiff does in fact bear the burden of proving that
jurisdiction exists over the defendant, the plaintiff is not required to establish jurisdiction by a
preponderance of the evidence, but rather a prima facie showing is sufficient to survive the
12(b)(2) motion. Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.2006). Moreover,
any factual conflict contained in the parties’ submissions must be resolved in the plaintiff’s favor.
Cent. Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir.2003).
This Court has personal jurisdiction over a defendant if: (1) the defendant is amendable to
service of process under Texas’ long arm statute; and (2) the assertion of personal jurisdiction
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 11

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 12 of 33 PageID 1257

comports with the Due Process Clause of the United States Constitution. Id. (citing Jones v. PettyRay Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.1992)). Because Texas’ long arm
statute has been consistently held to extend to the limits of due process, only the second prong
must be examined. Id. (citation omitted).
To show that this Court has personal jurisdiction, a plaintiff must show that: (1) the
defendant purposefully availed himself to the benefits and protections of Texas by establishing
“minimum contacts” such that it would be reasonable to anticipate he be summoned into court
there; and (2) exercising jurisdiction over the defendant would not offend traditional notions of
fair play and substantial justice. Id. (citation omitted). Minimum contacts may give rise to specific
or general jurisdiction. “General personal jurisdiction is found when the nonresident defendant’s
contacts with the forum state, even if unrelated to the cause of action, are continuous, systematic,
and substantial.” Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir.1999) (citation
omitted). In contrast, specific personal jurisdiction is established through the defendant's contacts
with the forum state arising from, or related to, the cause of action. Gundle Lining Const. Corp. v.
Adams Cty. Asphalt, Inc., 85 F.3d 201, 205 (5th Cir. 1996).
In evaluating “traditional notions of fair play and substantial justice,” the court must
examine a number of factors, including: (1) the defendant’s burden; (2) the forum state’s interests;
(3) the plaintiff’s interest in convenient and effective relief; (4) the judicial system’s interest in
efficient resolution of controversies; and (5) the state’s shared interest in furthering social policies.
Asahi Metals Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987). “Once minimum contacts
are established, a defendant must present ‘a compelling case that the presence of some
consideration would render jurisdiction unreasonable.’” Eviro Petroleum, Inc. v. Kondur
Petroleum, 79 F.Supp.2d 720, 725 (S.D.Tex.1999). “Only in rare cases ... will the exercise of

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 12

 your: 5.4U-UV-UUJUO-M uuvumemao t-Ileu Uluamu Page In J.) rage-IL: 1435

Jurisdiction not compon vtilh fair play and substantial justice when lhe nonresident defendant has
purposefully established minimum contacts \vilh the forum state Id (cilalion omitted)
bi Aaron Chimbel is a resident omte State olTexaa
Make no mistake, by own admission, and as alleged by Jane Doe No 1, Aaron 
was a resident of the State of Texas al the time of the original filing ot'thts lavtsuit [Dkl No 44
at 16] This because, as of the original tiling date lavlsuit, Mr Chimbel claimed a
residential homestead tax exemption on his Fort Worth, Texas residence located at --

-- 1d, Indeed, it was not untii alter being served with this

lawsuit that Mri

 

,himhel removed his residence homestead tax exemption COMPL 
Pursuanl to the Texas Tax Code, a "residence homeslead" means a lhal is occupied as
the individuals' principal residence by ownerai." Tex Tax Code Ann 1 13 By tiling for and
receiving this residential homestead tax exemplion Mr has certified to lhe State ofTexas
that the residence was his "principal residence" and that he does not claim an exemption on another
residence/principal homestead in or outside of Texas at the time of lhe filing of lawsuit Id,
see aim Propeny Tax Exemptions, Texas Comptroller,
//complroller texas (last visited Apr 1 l,
2020) (emphasis added) Now Mr presents the seltiserving argument that he has not
been a resident ot'the State of Texas since 2018 One vionders whether Mr has returned
lhe funds he stole from lhe Stale ofTexas in the form oftax exemptions/credits from lhe years he
represented that he mainlained a residence homestead vthile he allegedly resided in New York In
any event, such inconsistencies of fact reveal that Mr teslimony is unreliable and as
stated above, any {actual conflict contained in lhe parttes' submissions must be resolved in the

Jane Doe No favor See Cent. Freight Lmex, 322 3d 376, 380 (5th Cir 2003)

PLAINTIFFS CONVERSION TO SUMMARY JUDGMENT
AND RESPONSE TO DEFENDANTS MOTIONS T0 DISMISS PAGE 13

Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 14 of 33 PageID 1259

c. Aaron Chimbel has minimum contacts with the State of Texas subjecting him
to personal jurisdiction that comports with the traditional notions of fair play
and substantial justice.
Even if the Court determines that Aaron Chimbel is not a resident of the State of Texas—
which it should not—Mr. Chimbel is still subject to personal jurisdiction based on his minimum
contacts with the State. The determination of “minimum contacts” simply asks whether a
defendant has had sufficient contact with the forum. International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). The Supreme Court has held that foreseeability is a factor in determining
minimum contacts when a party can “reasonably anticipate” being hauled into a foreign court.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, (1985).
A party can “reasonably anticipate” being hauled into a forum state’s court when he has
“purposefully availed” himself of the laws of the forum state and the privileges of doing business
there. Hanson v. Denckla, 357 U.S. 235, 253 (1958). Moreover, in the Fifth Circuit, “‘mere
foreseeability or awareness”’ that the accused product/service will reach the forum state's market
is “‘a constitutionally sufficient basis for personal jurisdiction if the defendant's product made its
way into the forum state while still in the stream of commerce.”’ Ainsworth v. Moffett Engineering,
Ltd., 716 F.3d 174, 177 (5th Cir.2013).
Mr. Chimbel argues that he does not have the minimum contacts with the State of Texas to
establish that he purposefully availed himself to this forum. In his affidavit, Mr. Chimbel swears
that he does not reside in Texas, conducts no business in Texas and rarely visits Texas. [Dkt. No.
31 at ¶¶ 6-11]. These are all lies. Tellingly, Mr. Chimbel worked as an independent instructor for
a TCU summer program; and owns a homestead in Texas, as mentioned above, only removing
said exemption in an apparent attempt to evade jurisdiction with this Court. [Dkt. No. 31 at ¶ 6].
Moreover, Mr. Chimbel advertised his, services to students at TCU in the Northern District of

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 14

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 15 of 33 PageID 1260

Texas prior to their enrollment in the Washington, D.C. summer program as alleged by Jane Doe
No. 1. [Dkt. No. 31 at ¶ 12]. These advertisements were intended to solicit his services as a well
know professor for compensation thereby injecting his professional services within the stream of
commerce which can only be seen as doing business within this State. Mr. Chimbel cannot now
seriously contend that he did not have sufficient contacts with the State of Texas when at the time
of the original filing of this lawsuit he (1) owned a residence homestead and (2) solicited his
professional services in the State. Mr. Chimbel further cannot seriously contend that it was
unforeseeable that he may be called into court in Texas to defend himself for such professional
services given his systematic and continuous contacts, including his residence in Texas.
The burden on Mr. Chimbel to defend suit in the State of Texas is overtly reasonable as
evidenced by his legal representation by TCU and its lawyers in their joint defense herein. Further,
by advertising his services to TCU students Mr. Chimbel knowingly received privileges of
conducting activities within Texas, thus invoking the benefits and protections of its laws.
Moreover, Mr. Chimbel’s assertion that he has not had sufficient contacts with the State of Texas
despite his residence homestead tax exemption can only mean one of two things: Aaron Chimbel
has either (1) lied to the State of Texas to evade taxes or (2) he is perpetuating a fraud on this Court
solely to evade personal jurisdiction.
d. Aaron Chimbel’s actions confer Texas Courts Specific Jurisdiction over him.
A court has specific jurisdiction over a defendant if his alleged liability arises from or is
related to an activity conducted within the forum. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.
1996). Specific jurisdiction “may be asserted when the defendant’s forum contacts are isolated or
sporadic, but the plaintiff's cause of action arises out of those contacts with the state.” 4 CHARLES

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 15

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 16 of 33 PageID 1261

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1067.5
(3d ed.2002). In such cases, “we focus on the ‘relationship among the defendant, the forum[,] and
the litigation.’ ” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 575, 576 (Tex. 2007) (citation
omitted). Specific jurisdiction is appropriate when (1) the defendant’s contacts with the forum state
are purposeful, and (2) the cause of action arises from or relates to the defendant’s contacts. See
Retamco Operating, Inc v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009).
This Court has specific jurisdiction over Mr. Chimbel and therefore should deny his Motion
to Dismiss. Jane Doe No. 1’s claims against Mr. Chimbel arise out of Mr. Chimbel’s contact as
an instructor participating in the TCU summer abroad program. Indeed, as alleged by Jane Doe
No.1, her decision to go on the Washington, DC summer program was based in part on the fact
that Mr. Chimbel, and St. Bonaventure University would be a lead professor for a portion of the
course. [Dkt. No. 31 at ¶¶ 12-13]. Additionally, Mr. Chimbel associated with TCU for the specific
purpose to solicit TCU students within Texas. In any case, Chimbel’s solicitation through TCU
and his residential homestead exemption within the State of Texas all unambiguously give this
Court personal jurisdiction over the defendant and this Court should deny Chimbel’s clear attempt
to evade personal jurisdiction and deny Jane Does Nos. 1, 2, and 3 access to justice. [Dkt. No. 44
at ¶¶ 31-32].
III.

TCU and Defendants’ Motions to Dismiss should be denied because Plaintiffs have
sufficiently pled facts to state plausible Federal and State law claims.
a. Standard of Review for 12(b)(6) Motions to Dismiss.
A proper motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint,

not its merits. Though Defendants’ Motions fumble through various assertions that Jane Does Nos.
1, 2 and 3 have failed to prove their claims, the proper inquiry before the court is simply whether

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 16

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 17 of 33 PageID 1262

Jane Does Nos. 1, 2 and 3 have sufficiently pled plausible claims upon which facts may be
developed to ultimately prove their claims. FED. CIV. P. 12(b)(6).
A complaint need only contain a “short and plain statement of the claim showing that the
pleader is entitled to relief, so defendants have fair notice of the claim and the grounds upon which
it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint will survive a
12(b)(6) motion to dismiss if it contains sufficient factual matter, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw reasonable inference that the defendants are liable for the misconduct alleged. Id.
Moreover, this Court must accept as true all well-pled facts in a plaintiff’s complaint and
view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). “This standard ‘simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary claims or elements.” Morgan v. Hubert, 335 F.
App’x 466, 470 (5th Cir. 2009). At this stage of litigation, “[t]he issue is not whether a plaintiff
will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.”
Jackson v. Birmingham Board of Education, 544 U.S. 167, 184 (2005). Thus, a motion to dismiss
should not be granted unless it appears beyond doubt that a plaintiff “can prove no set of facts in
support of [her] claim which would entitle [her] to relief.” Campbell v. City of San Antonio, 43
F.3d 973, 975 (5th Cir. 1995) (citations omitted). This evaluation will “be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft,
556 U.S. at 678. “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are
rarely granted.” Lormand v. US Unwired, Inc., 565 F. 3d 228, 232 (5th Cir. 2009)(emphasis
added).

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 17

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 18 of 33 PageID 1263

b. Jane Does Nos. 1, 2 and 3 have sufficiently alleged facts to support their Title
VI, IX, Title III of ADA and Section 504 claims against TCU.
Despite Defendants’ beliefs, in the Fifth Circuit, claims of hostile environment under Title
VI, Title IX, Title III of the ADA and Section 504 of the Rehabilitation Act—as pled in the instant
matter—are all adjudicated applying the deliberate indifference standard. See Estate of Lance v.
Lewisville Indep. Sch. Dist., 743 F.3d 982, 990 (5th Cir. 2014).
i. Jane Does Nos. 1, 2 and 3 have adequately pled their Title VI and Title
IX claims.
Section 601 of Title VI of the Civil Rights Act of 1964, as amended, provides “[n]o person
in the United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving federal financial assistance.” In order to state a claim for relief under Title VI a
plaintiff must allege: (1) that the defendant engaged in intentional discrimination based on race,
color, or national origin; and (2) that the defendant received federal financial assistance. 42 U.S.C.
§ 2000d; see also Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
Title IX of the Education Amendments of 1972 provides, in relevant part, that: “[n]o person
in the United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). In the Fifth Circuit, to establish a claim under
Title IX, the plaintiff must establish that an educational institution receiving federal assistance
intentionally discriminated on the basis of plaintiff’s sex. See Chance v. Rice Univ., 984 F.2d 151,
153 (5th Cir. 1993).
In order to establish a violation of Title VI and Title IX under the hostile environment
theory a plaintiff must show that (1) the harassment was “so severe, pervasive, and objectively

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 18

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 19 of 33 PageID 1264

offensive that it can be said to deprive the victims of access to educational opportunities or benefits
provided by the school” (a racially hostile environment), and the district (2) had actual knowledge,
(3) had “control over the harasser and the environment in which the harassment occurs,” and (4)
was deliberately indifferent. Sanches v. Carrollton–Farmers Branch Indep. Sch. Dist., 647 F.3d
156, 165 (5th Cir.2011).
In the context of a hostile environment claim, the environment must have been intentionally
created or the result of deliberate indifference. See Fennell v. Marion Independent School Dist.,
804 F.3d 398, 398 (5th Cir. 2015). Deliberate indifference may be shown where an institution’s
response to discrimination is “clearly unreasonable in light of the known circumstances.” Id.
Although discrimination must be intentional to be actionable under Title VI and Title IX,
“intentional discrimination can be inferred by the defendant’s indifference to differential
treatment.” Fennell v. Marion Independent School Dist., 2014 WL 4274299, at *15 (W.D. Tex.,
Aug. 28, 2014) (citing Watson ex rel. Watson v. Jones Cnty. Sch. Dist. ex rel. Jones Cnty. Sch. Bd.
of Educ., No. 2:07cv100-KS-MTP, 2008 WL 4279602, at *11 (S.D. Miss. Sept. 11, 2008))
(quotations omitted).
Jane Does Nos. 1, 2, and 3 adequately pled their Title VI and Title IX claims. Specifically,
Jane Does Nos. 1, 2, and 3 have pled that they are African-American women, and thus, members
of a protected class. [Dkt. No. 44 at ¶¶ 63-132, 155, 173-86, 196-209]. Jane Does Nos. 1, 2 and 3
have also pled (and TCU does not dispute) that TCU is a recipient of federal financial assistance.
[Dkt. No. 44 at ¶¶ 69-70]. Furthermore, Jane Does Nos. 1, 2 and 3 have described in detail the
racially and sexually hostile environment that has been festering at TCU since its inception. [Dkt.
No. 44 at ¶¶ 18-66]. Though Defendants attempt to isolate Jane Does No. 1, 2 and 3 by filing
separate Motions in order to confuse the Court and continue to shield TCU’s abusive and inhumane

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 19

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 20 of 33 PageID 1265

behavior toward racial minorities and women, Jane Does Nos. 1, 2 and 3 sufficiently allege that
they were discriminated against based on their race and sex on campus, in the classroom, and in
the case of Jane Does Nos. 1 and 3 in the dormitories by their peers, faculty, administration and
staff. [Dkt. No. 44 at ¶ 67]. Moreover, Jane Does Nos. 1, 2 and 3 also adequately allege that when
they and other African-American women made reports of the aforementioned conduct—including
reports of physical and sexual abuse—to the appropriate TCU personnel, namely Dr. Darron
Turner TCU responded to their complaints inadequately and/or with deliberate indifference. [Dkt.
No. 44 at ¶¶ 129-166].
Defendants apparently do not dispute that TCU had actual knowledge of the racist and
sexist environment hosted on its campus and at TCU sanctioned activities as well as Jane Does
Nos. 1, 2 and 3’s plight at the hands of TCU and its agents as adequately alleged in their Complaint.
[Dkt. No. 44 at ¶¶ 63-173]. Instead, as best as Jane Does Nos. 1, 2 and 3 can untangle their
Motions, Defendants apparently argue that this Court should accept an “it-wasn’t-so-bad” standard
of review of Jane Does Nos. 1, 2 and 3’s Complaints.
But it was so bad, and as Jane Doe No. 1 sufficiently alleges, TCU and its agents repeatedly
ignored her cries for help and reports of unequal treatment and harassment by students and
professors, including assault on her person—all which TCU and its agents were deliberately
indifferent towards. [Dkt. No. 44 at ¶¶ 98-11]. TCU’s deliberate indifference coupled with their
past equally indifferent behavior towards racism and sexism effectively gave Jane Doe No. 1, 2
and 3’s peers, professors and administration the “green-light” to dehumanize them, knowing that
TCU would not reprimand them for abusing African-American women. Ultimately, TCU
succeed—at least for a time—in assailing Jane Doe No. 1’s humanity; morphing her from a vibrant
straight “A” honor student to a student who contemplated taking her own life on three occasions—

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 20

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 21 of 33 PageID 1266

which TCU new of—due to the unyielding harassment, embarrassment, and outright hostility from
TCU and the TCU community. [Dkt. No. 44 at ¶¶ 63-131]. Likewise, Jane Doe No. 2 has
sufficiently alleged and detailed TCU’s deliberate indifference and inadequate investigation and
response to her report of sexual assault and harassment. [Dkt. No. 44 at ¶¶ 132-54]. Specifically,
Jane Doe No. 2 details extensively the racially and sexually hostile environment that attempted
first to keep her silent when she reported her sexual assault at the hands of the Dean of her College,
Dr. Andrew Schoolmaster to Dr. Darron Turner in TCU’s Title IX Office. [Dkt. No. 44 at ¶¶ 14054]. As Jane Doe No. 2 has adequately alleged, when she reported that Dr. Schoolmaster sexually
harassed and assaulted her on campus, TCU’s Title IX Office tried extensively to discourage her
from officially filing her complaint. When she finally convinced TCU to listen to her, Dr. Turner’s
office first villainized Jane Doe No. 2 and next merely slapped Dr. Schoolmaster on the wrist by
effectively not reprimanding him at all. [Dkt. No. 44 at ¶¶ 153-54].
Similarly, Jane Doe No. 3 adequately alleges in detail the racial slurs and hostility that she
encountered on TCU’s campus, so much so it became insufferable and triggered type 1 diabetes.
[Dkt. No. 44 at ¶¶ 153-66]. When she reported her racist and sexist encounters to Title IX, Dr.
Darron Turner respond like he always does to African-American women—by intentionally
discouraging Jane Doe No. 3 from filing her complaint. Defendants attack Jane Does Nos. 1, 2
and 3’s well-pled complaint by requiring more from the Plaintiffs. As if not being able to relieve
yourself in your own hotel room is not enough. As if being sexually assaulted by a Dean known
for such conduct is not enough. As if being called every racial slur, including nigger is not enough.
In reality, Jane Does No. 1, 2, and 3 have sufficiently alleged plausible facts to survive a 12(b)(6)
challenge.
ii. Jane Does Nos. 1 and 3 have adequately pled their ADA Title III and
Section 504 of the Rehabilitation Act Claims
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 21

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 22 of 33 PageID 1267

Section 504 provides that “[n]o otherwise qualified individual with a disability ... shall,
solely by reason of her…disability, be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving federal financial
assistance.” 29 U.S.C. § 794(a). A plaintiff states a claim for relief under Title III of the ADA if
she alleges that: (1) she has a qualifying disability; (2) defendant owned, leased, or operated a
place of public accommodation; and (3) defendant denied plaintiff full and equal enjoyment on the
basis of her disability. Smith v. Bd. of Commissioners of Louisiana Stadium & Exposition Dist.,
385 F. Supp. 3d 491, 504 (E.D. La. 2019) (citation omitted). The rights and remedies
afforded…under Title III of the ADA are almost entirely duplicative of those provided under §
504 of the Rehabilitation Act. See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454
(5th Cir. 2005). Therefore, claims under both statutes are reviewed under the same standard. See
Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 990 (5th Cir. 2014).
Section 504 defines a “program or activity” as a college, university, or other postsecondary
institution…that receives federal financial assistance. 29 USC § 794 et seq. person with a disability
is defined as an individual with (1) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (2) a record of such an impairment; or (3)
being regarded as having such an impairment. 42 U.S.C. § 12102. “Major life activities include,
but are not limited to…performing manual tasks…sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
42 USC § 12102(2)(A)(emphasis added). Major life activities also include “the operation of a
major bodily function, including but not limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions”. Jane Doe No. 1 has adequately alleged that respiratory and circulatory
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 22

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 23 of 33 PageID 1268

limitations in connection with her asthma and health decline, which interfered with major life
activities, including performing manual tasks, breathing and walking to name a few. [Dkt. No. 44
at ¶¶ 98-114]. And Jane Doe No. 3 has adequately alleged digestive and endocrine limitations
resulting from Jane Doe No. 3’s type 1 diabetes which interferes with nearly all major life
activities. [Dkt. No. 44 at ¶ 160]; 42 U.S.C. § 12102(2)(B). Moreover, in the academic setting, the
Fifth Circuit “has previously determined that a cause of action is stated under § 504 when it is
alleged that a school [] has refused to provide reasonable accommodations for the [disabled]
plaintiff to receive the full benefits of the school program.” Marvin H. v. Austin Indep. Sch.
Dist., 714 F.2d 1348, 1356 (5th Cir.1983).
Jane Does Nos. 1 and 3 have sufficiently plead facts that entitle them to relief under Section
504 and Title III of the ADA. Specifically, because of Jane Doe No. 1’s asthma, a qualifying
disability, which restricted her as identified above, Jane Doe No. 1 was precluded from course
activities that thus, affected her participation and grade (notwithstanding any alleged plagiarism)
all because she could not walk the distance or breathe as freely as other non-asthmatic students.
[Dkt. No. 44 at ¶¶ 98-114]. Likewise, Jane Doe No. 3 reported and sought accommodation for her
type 1 diabetes and was outright ignored and thus, denied any accommodations. [Dkt. No. 44 at ¶
160].
iii. Jane Doe No. 1 has adequately pled pay discrimination under Title VII
against TCU.
In order to make out a prima facie case of pay discrimination under Title VII, a plaintiff
must show (1) “that [she] was a member of a protected class”; (2) “that [she] was paid less than a
non-member”; and (3) “that [her] circumstances are ‘nearly identical’ to those of” the better-paid
non-member. Mengistu v. Mississippi Valley State Univ., 716 F. App'x 331, 333–34 (5th Cir. 2018)
(citing Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522–23 (5th Cir. 2008)). Jane Doe No.
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 23

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 24 of 33 PageID 1269

1 adequately alleged that she was the only African-American honors college student worker and
that she was paid $2.50 less per hour than her white counterparts, though she was hired to perform
identical duties. [Dkt. No. 44 at ¶¶ 75-81]. Furthermore, Jane Doe No. 1 adequately alleged that
she has exhausted her administrative remedies. [Dkt. No. 44 at ¶ 195].
iv. Jane Does No. 1 has adequately pled fraud and violations of the
DTPA.
In order to state a claim for common law fraud a plaintiff must allege (1) a misstatement
or omission; (2) of material fact; (3) made with the intent to defraud; (4) on which the plaintiff
relied; (5) which proximately caused the plaintiff’s injury. Williams v. WMX Technologies Inc.,
112 F.3rd 175, 179 (5th Cir., 1997) (citations omitted).
In order to state a claim for violation of the Deceptive Trade Practices Act (DTPA), a
plaintiff must allege that: 1) they are a consumer; 2) the defendant can be sued under the DTPA;
3) the defendant committed a wrongful act, like TCU’s false, misleading and deceptive DEI
campaign and breach of warranty which subjected Jane Doe No. 1 to unconscionable treatment as
alleged by Jane Doe No. 1; and 4) the defendant’s actions were the producing cause of the
plaintiff’s injuries. Tex. Bus. & Com. Code § 17.50(a); Doe v. Boys Clubs, 907 S.W.2d 472, 478
(Tex.1995). An individual who seeks goods or services by purchase is a consumer. Tex. Bus. &
Com. Code § 17.45(4). An institution or organization can be sued under the DTPA if an act is
committed in connection with a plaintiff’s transaction in purchasing the goods. Amstadt v. U.S.
Brass Corp., 919 S.W.2d 644, 650 (Tex.1996). A producing cause is an act that is both a causein-fact and a substantial factor in causing the plaintiff's injuries. Prudential Ins. v. Jefferson
Assocs., 896 S.W.2d 156, 161 (Tex.1995).
Pleading fraud and DTPA violations with particularity in the Fifth Circuit requires “time,
place and contents of the false misrepresentations, as well as the identity of the person making the

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 24

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 25 of 33 PageID 1270

misrepresentation and what [that person] obtained thereby.” Patel v. Holiday Hosp. Franchising,
Inc., 172 F. Supp. 2d 821, 824 (N.D. Tex. 2001). This Fifth Circuit requirement fully comports
with Rule 9(b)’s requirement that a plaintiff plead, at a minimum, “the particulars of ‘time, place,
and content of the false representation, as well as the identity of the person making the
misrepresentation and what [that person] obtained thereby.’” Tuchman v. DSC Commc'ns Corp.,
14 F.3d 1061 (5th Cir. 1994)(citations omitted).
Here, Jane Doe No. 1 is a consumer under the DTPA, and TCU may be sued under the
DTPA. Moritz v. Bueche, 980 S.W.2d 849, 855 (Tex. App. 1998). TCU’s DEI campaign was
both a misstatement and an omission of fact through which TCU deployed false and deceptive
practices to lure African-American women to attend TCU despite its insidious past and present
racially and sexually hostile campus environment. As adequately alleged, TCU’s DEI campaign
completely omitted the reality of the blatant racism, bigotry, and discrimination, that freely existed
on TCU’s campus. [Dkt. No. 44 at ¶¶ 56-57, 67]. These facts were material and made with the
intent to defraud as they were designed to lure in students like Jane Doe No. 1 without actually
protecting them or providing the free and equal academic environment TCU promised on their
website. These acts violated the DTPA as they failed to disclose, and even hid, the truth of TCU’s
hateful legacy towards racial minorities and women. Moreover, TCU breached its express
warranty by claiming to have put in place measures to create a balanced learning community,
among other express warranties offered to Jane Doe No. 1. Through these actions, TCU subjected
Jane Doe No. 1 to unconscionable courses of action, which took advantage of her to her detriment.
TCU was aware that the statements made on the DEI website were completely false at the time the
statements were made because they were aware of both their history and the continuation of that
legacy on TCU’s campus. These representations of an atmosphere TCU had no commitment to

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 25

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 26 of 33 PageID 1271

fostering were made recklessly. Jane Doe No. 1 relied on these gross and intentional
misrepresentations made by TCU and enrolled in TCU. TCU’s conduct was the producing cause
of Jane Doe No. 1’s psychological and physiological harm based on reliance on TCU’s
misrepresentations which lured her to campus where she would be dehumanized as extensively
alleged. [Dkt. No. 44 at ¶¶ 87-131]. Jane Doe No. 1’s pleading complied with Rule 9(b) and any
claims that Jane Doe No. 1 has failed to adequately plead are baseless attempts to distract the Court
from TCU’s fraud and violations of the DTPA.
c. Jane Does Nos. 1, 2, and 3 adequately pled their claim for negligence.
In order to state a claim for negligence a plaintiff must allege that: 1) the plaintiff was owed
a duty of care, 2) the duty was breached, and 3) the aforementioned breach was the proximate
cause of the plaintiff’s injuries. Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 88 (Tex. App.
2012). Generally, when analyzing whether one party owes a duty of care, the court considers a
variety of factors including the risk, foreseeability, and likelihood of injury to the plaintiff weighed
against the social utility of the actor’s conduct, the burden of guarding against the injury, and the
consequences of placing that burden on the defendant. Greater Hous. Transp. Co. v. Phillips, 801
S.W.2d 523, 525 (Tex. 1990).
While TCU claims that “no special relationship exists between a private university and its
adult students,” that statement is not true. Private universities have been held to owe a duty to their
adult students when the actions of their actors were foreseeable, especially when they received
substantial notice of harm, and chose to act indifferently instead of protecting their students by
taking effective action. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.
1998). In fact, private universities have even been held to foster a dangerous environment by
actively discouraging students from reporting claims. See id. Therefore, not only can private

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 26

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 27 of 33 PageID 1272

universities be held to have a special relationship with their adult students, TCU had a special
relationship with Jane Does Nos. 1, 2, and 3 and owed them a duty of reasonable care. Also, as
stated in the very case TCU used for their incorrect assertion, an employer-employee relationship
between a university and its employee may give rise to a duty of care between the university and
its adult students. Boyd v. Tex. Christian Univ., 8 S.W.3d 758, 760 (Tex. App. – Fort Worth 1999,
no pet.). Furthermore, employers have a duty to “adequately hire, train, and supervise employees.”
Poynor v. BMW of N. Am., LLC, 441 S.W.3d 315, 326 (Tex. App. 2013).
Here, as adequately alleged, TCU owed a legal duty to Jane Does Nos. 1, 2, and 3 to possess
and apply the knowledge and to use the skill and care of a reasonable and prudent educational
institution. [Dkt. No. 44 at ¶¶ 63-173]. Furthermore, TCU owed a duty of reasonable care to Jane
Does Nos. 1, 2, and 3 because TCU’s faculty, staff, and administration were aware of the consistent
harassment Jane Does Nos. 1, 2, and 3 suffered at the hands of TCU agents. [Dkt. No. 44 at ¶¶ 55172]. TCU also had superior knowledge of the risks associated with their agent’s conduct and the
right to control said agent’s conduct which resulted in harm to Jane Does Nos. 1, 2, and 3. Id. Yet,
TCU and/or its agents Drs. Turner, Snow, Garnett and Professors Mack and Chimbel and Leigh
Holland—whom had a special relationship with Plaintiffs’ given their positions of authority—
ignored, delayed, and even discouraged the complaints of their students, contributing to their harm.
Id. But for TCU’s breach of their duty, Jane Does Nos. 1, 2 and 3 would not have suffered
psychological and physiological injuries.
At all relevant times, TCU and its agents were acting within the scope of their employment
and/or at the direction and under the control of TCU. TCU maintained the employment of the
aforementioned individuals, despite having knowledge of the reprehensible behavior and the
apparent fact that they were highly unqualified to handle their duties and responsibilities. [Dkt.

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 27

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 28 of 33 PageID 1273

No. 44 at ¶¶ 85-172]. Jane Does Nos. 1, 2 and 3 have adequately alleged that TCU knew or should
have known that hiring and retaining these individuals would create an unreasonable risk of injury
to students, especially considering the positions of power and responsibility they held. TCU failed
to use ordinary care in hiring, retaining, supervising, training, and managing the aforementioned
individuals.
d. Jane Does Nos. 1 and 2 adequately allege that they were assaulted.
A person commits an assault if the person…(3) intentionally or knowingly causes physical
contact with another when the person knows or should reasonably believe that the other will regard
the contact as offensive or provocative. Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2010).
The common law tort of assault exists to redress personal injury caused by offensive physical
contact or the threat of imminent bodily injury. See Hall v. Sonic Drive-In of Angleton, Inc., 177
S.W.3d 636, 650 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). TCU, along with Drs. Snow
and Schoolmaster, essentially argues that because Jane Does Nos. 1 and 2 did not expressly say
the physical contact was unwanted, it must not have been. However, that claim is not rooted in the
law at all, and it should not be allowed to eradicate Jane Does Nos. 1 and 2’s valid claim.
Here, Drs. Snow and Schoolmaster acted intentionally and knowingly in making unwanted
physical contact with Jane Does Nos. 1 and 2, which resulted in bodily injury to Jane Does Nos. 1
and 2. More specifically, Dr. Snow forcefully thrusted herself between Jane Doe No. 1 and another
student. [Dkt. No. 44 at ¶ 101]. This was followed by Dr. Snow aggressively pushing Jane Doe
No. 1. [Dkt. No. 44 at ¶ 106]. Additionally, Dr. Schoolmaster bent over for the sole purpose of
caressing Jane Doe No. 2’s bare knee and moving his fingers to her inner thigh, placing them on
the crease between her crossed legs. [Dkt. No. 44 at ¶ 136]. Each of these instances meet the Texas
Penal Code’s aforementioned definition of assault.

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 28

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 29 of 33 PageID 1274

e. Jane Does Nos. 1, 2, and 3 adequately allege that the Defendants intentionally
inflicted them with emotional distress.
To state a claim for intentional infliction of emotional distress (IIED), a plaintiff must
allege that: 1) the defendant’s conduct was intentional or reckless, 2) the plaintiff’s emotional
distress was severe, 3) the defendant’s conduct was extreme and outrageous, 4) the defendant’s
actions were the proximate cause of the plaintiff’s harm, and 5) there are no alternative causes of
action that provide a remedy for the plaintiff’s severe emotional distress. See Haygood v. Chandler,
No. 12-02-00239-CV, 2003 WL 22480560 (Tex.App.—Tyler 2003, pet. denied) (memo op.; 1031-03); Kroger Tex. L.P.v. Suberu, 216 S.W.3d 788, 796 (Tex.2006); Texas Farm Bur. Mut. Ins.
v. Sears, 84 S.W.3d 604, 610 (Tex.2002); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000);
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex.2005). Conduct is intentional if it is done
with a desire to cause the consequences (emotional distress) of the action or the belief that the
consequences are substantially certain to occur. See Washington v. Knight, 887 S.W.2d 211, 216
(Tex.App.—Texarkana 1994, writ denied). It is important to remember that intent does not have
to be overt; it can be inferred. See Toles v. Toles, 45 S.W.3d 252, 260 (Tex.App.—Dallas 2001,
pet. denied). Conduct is reckless if the defendant knows or has reason to know of facts that create
a high degree of risk of harm (emotional distress) to another and then deliberately proceeds to act
in conscious disregard of or with indifference to that risk. See Twyman v. Twyman, 855 S.W.2d
619, 624 (Tex.1993). Emotional distress is deemed severe when it reaches the point that no
reasonable person could expect to endure it without undergoing unreasonable suffering, often
proven through the explanation of the plaintiff’s reaction to the defendant’s conduct. GTE Sw.,
Inc., v. Bruce, 998 S.W.2d 605, 618 (Tex.1999). In order for conduct to be extreme and outrageous,
the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 29

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 30 of 33 PageID 1275

community.” Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017); Texas Farm, 84 S.W.3d at 610.
Therefore, Jane Does Nos. 1, 2, and 3 must be allowed to proceed with their case.
Here, TCU and/or in the alternative Drs. Turner, Snow, Garnett and Professors Mack and
Chimbel and Ms. Holland acted intentionally or recklessly towards Jane Does Nos. 1, 2 and 3 by
consistently ignoring and even discouraging their reports of racism, discrimination, and assault.
[Dkt. No. 44 at ¶¶ 85-172]. This pattern of conduct was extreme and outrageous, especially when
one considers that these actions were committed by people in positions allegedly designed to
protect students like Jane Does Nos. 1, 2 and 3. Jane Does Nos. 1, 2 and 3 extensively detailed
their numerous psychological and physiological injuries, including suicidal ideations, inability to
focus, inability to sleep, and a diminished sense of self-worth resulting from TCU and its agents
conduct. But for TCU’s actions and/or the actions of TCU’s agents, Jane Does Nos 1, 2 and 3,
would not have suffered their horrendous psychological and physiological harm. No alternative
cause of action would provide an adequate remedy for the emotional distress suffered caused by
TCU and its agents. Jane Does Nos. 1, 2 and 3 have adequately pled, with necessary and extensive
detail, intentional infliction of emotional distress against TCU and/or its agents.
f. Jane Doe No. 1 adequately allege that she was falsely imprisoned.
To prove a claim for false imprisonment, a plaintiff must provide evidence that they were
willfully detained by the defendant without any legal authority or justification. Wal-Mart Stores v.
Rodriguez, 92 S.W.3d 502, 506 (Tex.2002); Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374,
375–76 (Tex.1985). A detention does not require physical restraints; one may also be detained
through the use of violence, threats, or any other means that restrict a person’s movement
without their consent, so as to substantially interfere with their liberty, by moving them from
one place to another or by confining her. Tex. Pen. Code § 20.01(1); Randall's Food Mkts., Inc. v.

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 30

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 31 of 33 PageID 1276

Johnson, 891 S.W.2d 640, 644-645 (Tex.1995). Additionally, an employer can be held vicariously
liable for a wrongful detention or arrest committed by an employee or agent acting within the scope
of employment. See Wal-Mart Stores v. Odem, 929 S.W.2d 513, 530 n.9 (Tex.App.—San Antonio
1996, writ denied).
Here, TCU and its agents were acting within the scope of their employment and/or at the
direction and under the control of TCU at all relevant times.

As alleged, throughout the

Washington program, TCU via its agent, Dr. Snow, would force Jane Doe No. 1 to sit next to her
during the meals. [Dkt. No. 44 at ¶¶ 105-06]. Contrary to what TCU has attempted to depict, Dr.
Snow did not hold a seat for Jane Doe No. 1 out of good will or intentions. Throughout the
Washington program, TCU via its agent, Dr. Snow, substantially interfered with Jane Doe No. 1’s
liberty each and every time she banged on the empty seat to hurry Jane Doe No. 1 to sit next to her
after Jane Doe No. 1 indicated that she wanted to sit elsewhere. Id. Additionally, TCU via its
agent, Dr. Snow, falsely imprisoned Jane Doe No. 1 she was forced to stay in Washington D.C.,
despite her declining health. Through these actions, TCU via its agent, Dr. Snow, willfully and
maliciously detained Jane Doe No. 1. Because of this willful and malicious detention, Jane Doe
No. 1 suffered physical and emotional injuries, entitling her to actual and exemplary damages.
Additionally, and in the alternative, if necessary, Dr. Snow is liable in her individual capacity.
g. Jane Does Nos. 1 adequately allege that Defendants engaged in Conspiracy.
To state a claim for conspiracy, a plaintiff must allege that: 1) multiple parties 2) came
together to accomplish an unlawful purpose or a lawful purpose through unlawful means, 3) the
defendant participated in a meeting of the minds, 4) the occurrence of at least one unlawful, overt
act in furtherance of the conspiracy and 5) the defendant’s actions were the proximate cause of the
plaintiff’s injuries. ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 881 (Tex.2010).

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 31

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 32 of 33 PageID 1277

Here, TCU and its agents were acting within the scope of their employment and/or at the
direction and under the control of TCU at all relevant times. Therefore, TCU, via its agents Dr.
Snow and Professor Mack were members of a combination of two or more persons, comprised of
TCU and Professor Chimbel, Dean of Jandoli School of Communication at St. Bonaventure
University. Together, Drs. Snow and Garnett and Professor Mack, on behalf of TCU, had a meeting
of the minds on or about August 3, 2019 with Professor Chimbel to discriminate and retaliate
against Jane Doe No. 1 in violation of both federal and state law. TCU and Professor Chimbel
succeeded in their conspiracy by revoking the credits Jane Doe No. 1 worked to earn based on
discriminatory grading practices. Furthermore, while Jane Doe No. 1 was robbed of her credit, her
classmates, who completed insufficient work, still received credit for the course. Therefore, the
revocation of this credit is part of a continuing scheme to intentionally inflict emotional distress.
Additionally, and in the alternative, if necessary, Drs. Snow, Garnett, and Professors Mack and
Chimbel via the aforementioned conduct each conspired against Jane Doe No. 1 and are liable in
their individual capacities.
C. CONCLUSON AND PRAYER
For the reasons set forth above, Jane Does Nos. 1, 2 and 3 respectfully request that the Court
DENY Defendants Motion to Dismiss in its entirety, GRANT Jane Does Nos. 1, 2 and 3 Objection
to Conversion to Summary Judgment and/or allow Jane Does Nos. 1, 2 and 3 to further amend
their Complaint as needed, and for such other relief as the Court deems appropriate and just.

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 32

 Case 3:20-cv-00106-M Document 46 Filed 07/13/20

Page 33 of 33 PageID 1278

Respectfully submitted,
ANOZIE, LLP
/s/ Nnamdi M. Anozie
Nnamdi M. Anozie
Bar No. 24087107
E: nma@anoziellp.com
Keron A. Wright
Bar No. 24075311
E: kaw@anoziellp.com
6120 Swiss Avenue, #140838
Dallas, Texas 75214
T: 469.693.9087
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned counsel certifies that the above and foregoing Objection to Conversion to
Summary Judgment and Omnibus Response to Defendants’ Motions to Dismiss was served on all
counsel of record receiving electronic notice from the court’s ECF system.

/s/ Nnamdi M. Anozie
Nnamdi M. Anozie

PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

PAGE 33