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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,
v.
TEXAS CHRISTIAN UNIVERSITY, DR.
DIANE SNOW, DR. ANDREW
SCHOOLMASTER, DR. ROB
GARNETT, DR. DARRON TURNER,
RUSSELL MACK, J.D., LEIGH
HOLLAND and AARON CHIMBEL,
DEFENDANTS.

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CIVIL ACTION NO. 3:20-cv-00106-M

DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S REPLY BRIEF TO PLAINTIFFS’
OBJECTION TO CONVERSION TO SUMMARY JUDGMENT AND OMNIBUS
RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Defendant Texas Christian University (“TCU”) presents its reply brief to Plaintiffs’
Response [Doc. 46] to TCU’s 12(b)(6) motions to dismiss [Doc. 23–25]. 1
Plaintiffs’ allegations are insufficient to support or allow the Court to draw
any reasonable inference of intentional discrimination.
In their response, Plaintiffs make little to no effort to address the arguments
advanced by TCU in its motions to dismiss. The response offers no additional support
from which this Court can reasonably infer that the complained of conduct by TCU was
motivated by race or sex. 2 Plaintiffs have not alleged facts revealing evidence of direct

1Pursuant

to the Court’s order of June 26, 2020 [Doc. 43], the parties were advised that the Court would
consider the Defendants’ pending motions to dismiss as applying to the Plaintiffs’ Third Amended Complaint
(“complaint”) [Doc. 44].
2To support an unequal treatment claim, a plaintiff must make “sufficient, non-conclusory allegations
plausibly linking the [action at issue] to the discrimination on the basis of sex.” Austin v. Univ. of Oregon,
925 F.3d 1133, 1138 (9th Cir. 2019). “Just saying so is not enough. A recitation of facts without plausible
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SUMMARY JUDGMENT AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

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discrimination. 3 Moreover, Plaintiffs’ allegations are simply insufficiently detailed to
plausibly show that nearly identical individuals were treated better or more favorably than
Plaintiffs. For instance, they complain that the Title IX office ignored their discrimination
complaints. Assuming the allegation is true, Plaintiffs do not allege that white male or
female students (or other members of a protected class) received more attention, were
afforded a better investigation, or were the recipients of more favorable treatment from
the Title IX office. This is but just one example. Having failed to show an inference of
discriminatory intent, 4 Plaintiffs allege that discrimination should be inferred because TCU
was founded by two brothers who were in the Confederate Army and TCU has a “history”
with respect to race. But historical revelations and ancient anecdotal revelations do not
infer discriminatory intent on the part of TCU.
The response neither address or analyzes the cases TCU cited in its motions that
support dismissal. A glaring example involves their failure to flesh out their allegations as
to how, when and where each of the Plaintiffs were actually excluded from or denied any
tangible education benefit or program at TCU due to unlawful discrimination. The survival
of Plaintiffs discrimination claims—even at this early stage in the case—depends entirely
on whether they state plausible claims they were each excluded from participation in,
denied the benefits of or subject to discrimination under an education program. See 42
U.S.C. § 2000d (Title VI); 20 U.S.C. § 1681 (Title IX); 42 U.S.C. § 12182 (ADA); 29 U.S.C.
§ 794(a)(Section 504 of the Rehabilitation Act). Instead of addressing this head on in their

connection to gender is not cured by labels and conclusory statements about sex discrimination.” Id.
3Direct evidence is evidence which, “if believed, proves the fact [in question] without inference or
presumption.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003).
4Courts may only draw a reasonable inference of discrimination “when the plaintiff pleads [sufficient] factual
content.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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response, they deflect and state the obvious: Plaintiffs are African-American women, thus
members of a protected class, and that TCU is subject to federal discrimination laws
because it receives some federal funding. [Doc. 46, p.19]. This is not enough to state a
discrimination claim. They have missed the opportunity to offer additional insight showing
how they lost any educational opportunity. Despite Doe 1’s protestations to the contrary,
her case is about academic misconduct and Doe’s receiving a no credit (“NC”) grade for
the Washington, D.C. pass/fail course. Sifting through all of her allegations, the NC grade
is the sole alleged adverse action that could possibly be argued to support her contention
that she was excluded from participation in or denied the benefits of an educational
program. Doe 1 still fails to allege in her current complaint that she did not plagiarize. 5
Doe 2 fails to allege what educational opportunity or program was lost to her,
choosing instead, to re-urge that TCU was deliberately indifferent to her complaint and
the Title IX office inadequately investigated. [Doc. 46, p. 21]. Doe 2’s factual allegations
defeat her claim inasmuch as they reveal that TCU did investigate her complaint against
Dr. Schoolmaster. [See TCU’s argument, Doc. 24, II.A.1.c., pp. 8–10]. In her response,
Doe 2 agrees that TCU did investigate. It reached a decision as to her complaint against
Dr. Schoolmaster that she characterizes as a slap on the wrist. [Doc. 46, p. 21]. Because
Doe 2’s allegations essentially rebut that TCU was deliberately indifferent to her report of
harassment, dismissal is appropriate.
Likewise, Doe 3 fails to elaborate on what educational benefit or program she

5In

Doe’s response, Doe now appears to advance the proposition she did not plagiarize. [Doc. 46, p. 8].
This allegation should be disregarded. See, e.g., Henthorn v. Dept. of Navy, 29 F.3d 682, 688 (D.C. Cir.
1994) (court should not consider factual allegations in a plaintiff’s response to motion to dismiss to accept
a revised version of the facts more favorable to him, especially when they contradict facts set forth in the
complaint). For further argument about the NC decision and grade appeal, see infra, p. 5.
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alleges was foreclosed to her because of alleged intentional discrimination. [Doc. 46, p.
21]. Consistent with Doe 1 and 2’s pleading deficiencies, Doe 3 still neglects to explain
how her allegations support a contention she was excluded from a program or activity at
TCU. In fact, they connote the exact opposite. Doe 3 kept her scholarship, makes no
allegation she was ever denied registering or enrolling for a course, or was unable to
complete her education, and she graduated. [See Doc. 25, II.A., pp. 11–12]. As with her
co-plaintiffs, it is somewhat telling that Doe 3 cannot muster the necessary allegations to
support an essential element of the claims they assert. A district court is not required to
draw unreasonable inferences or “to accept as plausible wholly unrealistic assertions” in
ruling on a Rule 12(b)(6) motion. Brown v. Medtronic, Inc., 628 F.3d 451, 461 (8th Cir.
2010). Here, Plaintiffs have not alleged sufficient specific facts to establish intentional
discrimination.
Plaintiffs pattern and practice theory is not cognizable.
Plaintiffs, being unable to allege plausible claims of individualized discrimination,
now emphasize that TCU engages in a “pattern and practice of discriminating against
racial minorities and women.” [Doc. 46, p. 9]. Pattern and practice cases are normally
associated with employment discrimination claims. See Intl. Bhd. of Teamsters v. United
States, 431 U.S. 324 (1977). Assuming only for the purpose of deciding TCU’s motions
to dismiss that a pattern or practice theory can establish Title VI or Title IX discrimination
and that this theory applies to Plaintiffs’ allegation that TCU inadequately responded to
their complaints of discrimination, (i.e. failure to properly investigate claims made by
African-American females), the Plaintiffs must allege that the practice was pervasive and
affected many individuals. Id. at 360.

“[S]ingle, insignificant, isolated acts of

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discrimination” are not enough to prove a pattern or practice; nor are “sporadic
incident[s].” Id. at 336 n.16. Further, the allegations must reveal it was TCU’s “regular
rather than unusual practice”; E.E.O.C. v. Bass Pro Outdoor World, LLC, 826 F.3d 791,
797 (5th Cir. 2016). Here, Plaintiffs have not so alleged, nor do they allege any statistical
evidence from which it can be inferred, that it was TCU’s standard practice to avoid
investigating or ignoring discrimination complaints made by African-American females.
The allegations do not support that the alleged practice was pervasive. It defies common
sense, logic, and reason that three students (all of whose claims were actually
investigated) is a sufficient number to support an allegation that ignoring discrimination
complaints is a routine procedure at TCU. At most, the allegations point to sporadic,
isolated incidents. See, e.g., E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d
499, 517 (S.D. Tex. 2012) (dismissing pattern or practice claim at 12(b)(6) stage where
complaint alleged only four instances of discrimination); Krish v. Connecticut Ear, Nose
& Throat, Sinus & Allergy Specialists, P.C., 607 F. Supp. 2d 324, 332 (D. Conn. 2009)
(concluding that three instances of discrimination were insufficient to state a plausible
pattern or practice claim). To the extent Plaintiffs seek to establish discrimination under
a pattern or practice theory, this theory should be rejected.
In deciding TCU’s motion to dismiss Doe 1’s complaint, the Court is not
limited to the four corners of the complaint.
TCU submits this Court should not decide TCU’s motions as to Doe 1 in a vacuum.
Doe 1 seeks to strike all or part of the record filed in support of Defendant Chimbel’s
Motions to Dismiss for Personal Jurisdiction and Failure to State a Claim [Doc. 31] and to
convert one or more of the Defendants’ motions to dismiss to a Rule 56 motion. 6 Courts
6Chimbel

was undoubtedly entitled to furnish documents and records in support of his motion to dismiss

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“have allowed consideration of matters incorporated by reference or integral to the claim,
. . . items appearing in the record of the case, and exhibits attached to the complaint
whose authenticity is unquestioned; these items may be considered by the district judge
without converting the motion into one for summary judgment. These matters are deemed
to be a part of every complaint by implication.” 5B, Wright and Miller, Fed. Prac. & Proc.
Civ. § 1357 (3d Ed.)(italics added). Doe admitted she plagiarized. [Doc. 31–14, CHIMBEL
0083]. It is appropriate for the Court to consider this same November 5, 2019 letter from
Dr. Garrett to Doe 1 when ruling on the motion because Doe 1 relies on and references
the November 5, 2019 grade appeal letter in her complaint. [Doc. 44, ¶ 171]. See
Lonestar Fund V. (U.S.) v. Barclays Bank PLC, 594 F.3d 383,387 (5th Cir. 2010) (courts
review of a Rule 12(b)(6) motion considers complaint, documents attached to the
complaint and those attached to a motion to dismiss that are central to the claim and
referenced in the complaint). The Court has discretion to accept or exclude documents
filed on behalf of other parties in this case. 7 Doe 1 should not be allowed to invoke a
document for one purpose that she believes to be favorable, but complain about an
opposing party’s use of the same document which contains information that if not
considered at this time, may result in the Court indulging in an unreasonable inference
that the NC grade was motivated by race or gender bias. In the case of Doe 1, one cannot

under Rule 12(b)(2). The Court is not required to put on blinders and ignore matters in the record that would
have relevance or bearing on a co-litigant’s substantive or procedural rights.
7TCU did not attach any extraneous documents to its motions to dismiss. Only Defendant Chimbel did so.
Consequently, any implication that TCU’s Rule (12)(b)(6) motion is subject to conversion to a Rule 56
summary judgment motion is misplaced. In any event, TCU reiterates that in ruling on its motion to dismiss
as to Doe 1, it respectfully asks that the Court consider only those items that the Court is allowed to consider
in ruling on a 12(b)(6) motion without converting the motion to dismiss to a summary judgment motion. See
Maloney Gaming Mgmt. LLC v. St. Tammany Par., 456 Fed. App’x. 336, 340 (5th Cir. 2011). TCU thus
submits that reference to the November 5, 2019 letter is central to Doe 1’s claims. See In re Katrina, 495
F.3d 191, 205 (5th Cir. 2007).
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draw a reasonable inference that being accused of plagiarism was as a result of
intentional discrimination when an alternative explanation shows otherwise; thus, it is
unreasonable to infer that the NC decision and denial of her academic appeal was the
product of race or gender bias. See e.g., 16630 Southfield Ltd. Pshp. v. Flagstar Bank,
F.S.B. 727 F.3d 502, 505 (6th Cir. 2013) (explaining that an alternative explanation
illustrates the unreasonableness of the inference sought and the claim’s implausibility in
analyzing Rule 12(b)(6) motion).
Doe 1’s Title VII employment discrimination claim is not plausible on its face.
After TCU initially sought to dismiss Doe 1’s student worker discrimination claim
for failure to exhaust administrative remedies [Doc. 8, ¶ III., B, 6, pp. 15–17], on May 14,
2020, Doe signed an administrative charge with the Texas Workforce Commission and
EEOC alleging she was paid less than white students and was subjected to different terms
and conditions of employment as compared to other white students. [See TCU’s
Appendix, Ex. 1, filed contemporaneously with this reply]. Still urging dismissal because
Doe pleads a legal conclusion that TCU’s alleged employment actions were motivated by
race and she does not sufficiently allege or identify a nearly identical or similarly situated
white counterpart/comparator that was treated better or differently, TCU submits that
dismissal is appropriate inasmuch as all of her alleged complaints about her work area,
working hours, being present for Honors College tours, doing manual labor and cleanup
and breaking down tables after tours, etc., [Doc. 44, ¶¶ 75-77] fall outside the applicable
limitations period. Under Title VII, a plaintiff must file a charge of discrimination with the
EEOC within 180 days of the date of the alleged discrimination, or within 300 days of the
alleged discrimination if she institutes his action with the appropriate state agency. Dao

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v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (citing 42 U.S.C. § 2000e5(e)(1). Assuming Doe 1 filed her charge on the day she signed the charge, i.e., May 14,
2020, counting back 300 days reveals that Doe 1 cannot seek relief for alleged acts of
unlawful employment acts and practices or other employment discrimination prior to July
19, 2019. According to Doe 1’s allegations, she was attending the D.C. summer program
in July 2019. [Doc. 44, ¶ 92]. Her job complaints are alleged to have occurred earlier: (i)
she was offered a job soon after being admitted to the Honors College (which was in the
fall 2018 semester) [¶¶ 73, 75-76]; and (ii) between her date of hire and the end of the
spring 2019 semester, she alleges being a ”showpiece” for tours, doing manual labor and
allegedly receiving a lower hourly wage. [¶ 77]. She alleges no other complaints after
returning to campus for the fall semester in 2019 other than vague allegations that her
hours were reduced [¶ 78] and the treatment by her boss “deteriorate[d]”. [¶ 81]. Such
vague allegations are insufficient to state a claim for employment discrimination. It should
not go unnoticed that while Doe implies her hours were reduced after making a complaint
with the Title IX office, she does not allege that the person reducing her hours knew Doe
1 made a complaint. Further, Doe does not allege that she actually wanted to work more
hours, or that the Honors College office had available time slots to schedule Doe 1 to
work that were not in conflict with Doe 1’s class schedule. Also, Doe 1’s retaliation claim
should be dismissed. To establish a prima facie claim of retaliation, a plaintiff must
demonstrate that (1) she engaged in protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Doe
1 does not sufficiently allege a causal connection between Doe 1 making a complaint

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about the D.C. summer program and her job. The alleged misconduct occurring during
the D.C. program is wholly unrelated to Doe 1’s activities as a student worker. Doe 1 has
not set forth allegations that could enable the Court to reasonably infer that the Honors
College assistant reduced Doe 1’s work hours or discriminated against her because Doe
1 made a complaint to Dr. Turner about the D.C. program. In fact, the opposite happened;
Doe 1 alleges the assistant actually raised Doe’s hourly wage. Doe 1 offers only
conclusory statements and alleges no facts demonstrating that the assistant’s actions
were motivated by race. Doe pleads no allegations of specific objective incidents of racial
discrimination, such as racial comments made by the assistant or treatment different for
nearly identical or similarly situated Honors College student workers outside of a
protected class. See Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013)
(affirming Rule 12(b)(6) dismissal where plaintiff “did not allege any facts, direct or
circumstantial, that would suggest [defendant]’s actions were based on [plaintiff]’s race or
national origin or that [defendant] treated similarly situated employees of other races or
national origin more favorably”).
Does 1 and 3’s ADA and Rehabilitation Act claims are not plausible under
either any theory. 8
Does 1 and 3 appear to focus their argument that they each reported a disability
and sought accommodations that were not received. [Doc. 46, p. 23]. To state a plausible
claim, Plaintiffs must have alleged that TCU refused to provide a reasonable
accommodation for Does 1 and 3 that resulted in their each not receiving the benefits of

8TCU addressed the insufficiency of Doe 1’s pleading that she failed to allege how asthma excluded her
from any educational benefit. [Doc. 23, III.A.7., pp. 18–20]. Likewise, Doe 3 does not allege plausible
allegations that her diabetes excluded her from any program or activity at TCU. [Doc. 25, III.A.5., pp. 18–
20].

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an educational program. D.A. ex rel. Latasha, v. Houston Indep. Sch. Dist., 629 F.3d
450, 454 (5th Cir. 2010). It is not plausible that TCU refused a request for accommodation
when neither Doe 1 or Doe 3 have alleged or identified the accommodation they sought.
To the extent Does 1 and 3 posit their disability claims on the basis that TCU permitted a
hostile environment to exist between its employees/faculty and Does 1 and 3, this claim
also fails. The Fifth Circuit’s holding in Estate of Lance v. Louisville Indep. Sch. Dist., 743
F.3d 982 (5th Cir. 2014) expressly applied only to student on student harassment, not
harassment by employees of an educational institution against a student. To the extent
Doe 1’s claim is premised on the allegation that Dr. Snow questioned Doe 1 about the
advisability of her decision to attend the Washington, D.C. summer program or allegedly
harassed her about her inability to walk or asthma, Doe 1 has not stated a cognizable
claim under the ADA or section 504 for hostile environment disability claims.
Finally, for Does 1 and 3 to prevail and recover compensatory damages, they must
allege more than deliberate indifference to establish intentional discrimination. See
Cadena v. El Paso County, 946 F.3d 717 (5th Cir. 2020) explaining that “something more
than ‘deliberate indifference’” is required to establish intentional disability discrimination,
which they have failed to allege. Id. at 724.
For the reasons set forth in TCU’s motions to dismiss and this reply, TCU requests
that its motions to dismiss be granted.
DATED: July 27, 2020.
Respectfully submitted,
/s/ George C. Haratsis
George C. Haratsis
State Bar No. 08941000
gch@mcdonaldlaw.com
DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO CONVERSION TO
SUMMARY JUDGMENT AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS

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Rory Divin
State Bar No. 05902800
rd@mcdonaldlaw.com
Jennifer Littman
State Bar No. 00786142
jnl@mcdonaldlaw.com
McDONALD SANDERS,
A Professional Corporation
777 Main Street, Suite 2700
Fort Worth, Texas 76102
(817) 336-8651
(817) 334-0271 Fax
ATTORNEYS FOR DEFENDANT TCU
CERTIFICATE OF SERVICE
The undersigned counsel certifies that the above and foregoing Defendant Texas
Christian University’s Reply to Plaintiffs’ 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 notification system.
/s/ George C. Haratsis
George C. Haratsis

DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO CONVERSION TO
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