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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 MOTION TO DISMISS CLAIMS OF
JANE DOE NO. 1 AND BRIEF IN SUPPORT
George C. Haratsis
Texas Bar No. 08941000
gch@mcdonaldlaw.com
Rory Divin
State Bar No. 05902800
rd@mcdonaldlaw.com
Jennifer N. Littman
Texas 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 DEFENDANTS
TEXAS CHRISTIAN UNIVERSITY

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TABLE OF CONTENTS
DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS
CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT .............................................. I
TABLE OF CONTENTS .................................................................................................. II
INDEX OF AUTHORITIES ............................................................................................. III
I. INTRODUCTION .......................................................................................................... 1
II. BACKGROUND........................................................................................................... 1
III. ARGUMENT AND AUTHORITIES ............................................................................. 2
A. Doe has not pleaded plausible substantive claims against TCU ...................... 2
1.

Doe’s Title VI and Title IX claims should be dismissed .............................. 3

2.

Doe has not been deprived of any of the benefits of any education
program or activity at TCU ......................................................................... 9

3.

Doe’s allegations of a hostile educational environment are not actionable
as they do not show a negative impact upon her receipt of education
benefits and participating in educational programs .................................. 11

4.

Doe’s admission of plagiarism is not the product of race or gender
discrimination and is the sole reason for any alleged loss of an educational
benefit ...................................................................................................... 12

5.

Doe’s claims of retaliation under Title VI and Title IX fail ......................... 13

6.

Doe’s claim of employment discrimination and retaliation should be
dismissed ................................................................................................. 16

7.

Doe’s Section 504 Rehabilitation Act and ADA claims are not plausible . 18

8.

Doe’s ADA Title III claim for monetary damages and Rehabilitation Act
claim for money damages for mental anguish should be dismissed ........ 21

9.

All of Doe’s negligence theories fail to state a claim ................................ 21

10. Doe’s fraud, negligent misrepresentation and DTPA allegations are
insufficient and should be dismissed ....................................................... 24
11. Doe’s assault claim against TCU should be dismissed ............................ 24
B. TCU requests that the Court decline to exercise supplemental jurisdiction over
Doe’s state law claims .................................................................................... 24
IV. CONCLUSION ......................................................................................................... 25
CERTIFICATE OF SERVICE ........................................................................................ 25

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INDEX OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287, 300 (1995).............................................................. 2
Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 2, 3
Bd. of Curators of the Univ. of Missouri v. Horowitz, 43 5 U.S. 78, 98 (1978)). ............... 2
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ............................................. 2, 3, 6
Bisong v. Univ. of Houston, 493 F. Supp. 2d 896, 905 (S.D. Tex. 2007)..................... 2, 6
Burlington North. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)........................ 15
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir.
1999) .......................................................................................................................... 18
Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 680 (5th Cir. 2020) ......... 21
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648–52 (1999) .......................... 11, 12
Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 190 (2d
Cir. 2015) ................................................................................................................... 21
Doe No. 1 v. Baylor Univ., 240 F. Supp. 3d 646, 657 n. 3 (W.D. Tex. 2017)................... 8
Doe v. Princeton Univ., 790 F. App’x 379, 385 (2d Cir. 2019) ....................................... 16
Easley v. Univ. of Tex. at Arlington, 984 F. Supp. 2d 631, 636 (N.D. Tex. 2013) ............ 8
Emeldi v Univ. of Or., 698 F.3d 715, 725–26 (9th Cir. 2012)......................................... 15
Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 407–08 (5th Cir. 2015) ............... 3, 12
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) ............................................ 3
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) ................................. 3
Gordon v. Traverse City Area Pub. Sch., 686 F. App'x 315, 320 (6th Cir. 2017) ... 14, 15,
16
Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). .................... 22
Hayut v. St. Univ. of N.Y., 352 F.3d 733........................................................................ 11
Hendrichsen v. Ball St. Univ., 107 F. App’x 680, 684 (7th Cir. 2004). ........................... 12
Herndon v. Coll. Of Mainland, No. G-06-0286, 2009 WL 367500, *29 (S.D. Tex.
Feb. 13, 2009).......................................................................................... 6, 7, 8, 12, 17
Iqbal, 556 U.S. at 678...................................................................................................... 8
Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019) ............................ 9
Lekoski v. James, 66 F.3d 751, 754 (5th Cir. 1995) ...................................................... 17
Lopez v. Webster Cent. Sch. Dist., 682 F. Supp. 2d 274 .............................................. 11
Lowry v. Tex. A&M Univ. Sys., 11 F. Supp. 2d 845, 911 (S.D. Tex. 1998).................... 14
Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 728–29 (7th Cir. 2009) .................... 15

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Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 724 (S.D. Tex. 2015) .............................. 3
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003) ..................... 18
Mawle v. Texas A&M Univ./Kingsville, 2010 WL 1782214, *13 (S.D. Tex. April 30,
2010) ............................................................................................................................ 8
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1997) ............................. 6
McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008).................................. 17
McGregor v. La. St. Univ. Bd. of Supervisors, 3 F.3d 850, 858–59 (5th Cir. 1993) ....... 19
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001); ......................... 18
Mesa v. City of San Antonio, No. CV-SA-17-CA-654-XR, 2017 WL 5924263, at
*4 (W.D. Tex. Nov. 29, 2017) ..................................................................................... 20
Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627–28 (N.D.
Tex. 2017) .................................................................................................................... 6
Neely v. Pseg Tex. Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)................................ 20
Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993) ........................................................ 25
Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011)...... 15
Patel v. Holiday Hosp. Franchising, Inc., 172 F. Supp. 2d 821, 825 (N.D. Tex.
2001) .......................................................................................................................... 24
Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 183 (5th Cir.
2015) .......................................................................................................................... 21
Pinkerton v. Spellings, 529 F.3d 513, 516–10 (5th Cir. 2009). ...................................... 18
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) ............................................. 2
Plummer v. Univ. of Houston, 860 F.3d 767, 778 (5th Cir. 2017). .................................... 9
Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010)). ....................... 6
Sadeghian v. Univ. of S. Alabama, No. 18-00009-JB-B, 2018 WL 7106981, at *12
(S.D. Ala. Dec. 4, 2018); ............................................................................................ 15
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th
Cir. 2011) ................................................................................................................... 12
Scott v. Shoe Show, Inc., 38 F. Supp. 3d 1343, 1360–61 (N.D. Ga. 2014) ................... 19
Shaikh v. Texas A & M Univ. Coll. of Med., 739 F. App’x 215, 219, 224 (5th Cir.
2018) .......................................................................................................................... 18
Shushany v. Allwaste, Inc., 992 F.2d 517, 521 (5th Cir.1993)....................................... 24
Subbiah v. Univ. of Tex. at Dall., No. 3:10-CV-0115-B, 2010 WL 5287530 at *5
(N.D. Tex. Dec. 27, 2010) ........................................................................................ 3, 6
Swanson v. General Servs. Admin, 110 F.3d 1180, 1189 (5th Cir. 1997); ...................... 6
Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) ................................................... 22

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Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996) ........ 20
Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013). ............................... 14
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). ......................... 24
Yusuf v. Vassar Coll., 45 F.3d 709, 715 (2d Cir. 1994) ................................................. 13
Statutes
§ 12102(2)(A). ............................................................................................................... 18
20 U.S.C. § 1232g ........................................................................................................... 5
28 U.S.C. § 1367(c)(3). ................................................................................................. 25
29 U.S.C. § 794(a) ........................................................................................................ 18
38 C.F.R. § 21.9700 ........................................................................................................ 4
38 U.S.C. § 3317 ............................................................................................................. 4
42 U.S.C. § 12102(1) .................................................................................................... 18
42 U.S.C. § 2000e-5(c)(e). ............................................................................................ 16
42 U.S.C. §2000e et seq. .............................................................................................. 16
Rules
Rule 12(b)(6) ................................................................................................................... 1
Rule 9(b) ....................................................................................................................... 24
Treatises
Texas Pattern Jury Charges: General Negligence, PJC 2.4 (2016) .............................. 23

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TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant
Texas Christian University (“TCU”) respectfully files this motion to dismiss (“Motion”) all
of Jane Doe No. 1’s (“Doe”) claims against TCU in Plaintiffs’ First Amended Complaint
[Doc. 19] and brief in support.
I. INTRODUCTION
This suit was brought by Doe, a TCU student, after TCU sanctioned her for
academic misconduct, i.e., plagiarism, occurring during a four-week summer course in
Washington D.C. called about “How Washington D.C. Works.” [Compl., ¶ 90-91, 126,
169-173]. 1 Conspicuously absent from Doe’s Complaint is any denial by Doe of her
plagiarism, or any allegation that TCU falsely accused her of plagiarism. The sanction
TCU imposed was quite lenient; TCU only declined to award her course credit by giving
her a no credit (“NC”) grade for the pass-fail course during which she plagiarized. [Compl.
¶ 126, 169-173]. She appealed, and her appeal was unsuccessful. [Compl. ¶ 170].
Unhappy with TCU’s academic decision, Doe has sued, alleging race discrimination, as
well as a litany of other claims. TCU denies violating her rights.
II. BACKGROUND
This suit is Doe’s effort to cloak, under the guise of a civil rights suit, what is
essentially a judicial appeal of TCU’s academic decision that Doe deserves no credit for
the summer course in which she plagiarized. When a court is requested to over-ride an
academic decision of a university, the court must “balance the rights of students against
the school’s ‘legitimate interests . . . in preserving the integrity of its programs.’” Bisong

1 References to Compl., __ in the Motion are to paragraphs in Jane Doe No. 1’s First Amended Complaint.
For example, a reference to [Compl., ¶ 85–86] is to paragraphs 85–86 of her Amended Complaint.

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v. Univ. of Houston, 493 F. Supp. 2d 896, 905 (S.D. Tex. 2007) (quoting Alexander v.
Choate, 469 U.S. 287, 300 (1995). A federal court shows great deference to a university’s
determination that a student plagiarized an assignment and needed to suffer academic
disciplinary consequences. See id. at 910–11. Courts show great deference to
universities’ academic determinations because courts are “particularly ill-equipped to
evaluate academic performance.” Id. (quoting Bd. of Curators of the Univ. of Missouri v.
Horowitz, 43 5 U.S. 78, 98 (1978)). A good faith determination by TCU that Doe engaged
in plagiarism, even if incorrect, would constitute a legitimate non-discriminatory reason
for its imposition of an academic sanction. See id. at 907. TCU respectfully asks that this
Honorable Court refrain from accepting Doe’s invitation to conduct a judicial review of
TCU’s academic decision pertaining to Doe’s plagiarism.
III. ARGUMENT AND AUTHORITIES
A.

Doe has not pleaded plausible substantive claims against TCU
A plaintiff’s complaint must plead sufficient facts to “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Courts “do not accept as true
conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v.
IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted); see also Iqbal, 556
U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”). Although “a court must accept as true all of the
allegations contained in a complaint, that tenet is inapplicable to legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Iqbal, 556 U.S. at 697. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557.) If “the plaintiffs have not
nudged their claims across the line from conceivable to plausible, their complaint must be
dismissed.” Twombly, 550 U.S. at 570. TCU moves the Court to dismiss each of Doe’s
causes of action for failure to state a claim.
1.

Doe’s Title VI and Title IX claims should be dismissed

Below, TCU combines its arguments about Doe’s Title VI and Title IX claims, since
the two statutes are similar and are interpreted similarly. “Congress modeled Title IX after
Title VI of the Civil Rights Act of 1964 and passed Title IX with the explicit understanding
that it would be interpreted as Title VI was.” Fitzgerald v. Barnstable Sch. Comm., 555
U.S. 246 (2009). For Doe to recover under Titles VI and IX, she must establish that the
actions about which she complains were motivated by discriminatory intent; these
statutes only prohibit intentional discrimination. Fennell v. Marion Indep. Sch. Dist., 804
F.3d 398, 407–08 (5th Cir. 2015). Moreover, Doe cannot recover damages unless an
appropriate person—an official authorized to institute corrective measures—had actual
knowledge of the discrimination and responded with deliberate indifference. Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). A complaint that does not
“provide specific allegations of acts that were taken with discriminatory intent” does not
state a claim for Title VI discrimination. Manley v. Tex. S. Univ., 107 F. Supp. 3d 712,
724 (S.D. Tex. 2015) (quoting Subbiah v. Univ. of Tex. at Dall., No. 3:10-CV-0115-B, 2010
WL 5287530 at *5 (N.D. Tex. Dec. 27, 2010)). Doe pleads the conclusion that TCU
intentionally discriminated, but Doe’s factual allegations, if proven, do not support even a

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plausible inference of unlawful race or gender discrimination.
Although Doe asserts she remained active and excelled academically [Compl., ¶
124], Doe pleads the legal conclusion she was unlawfully excluded from participation and
denied the benefits of TCU’s educational programs and activities due to TCU’s alleged
deliberate indifference to correct and alleged hostile educational environment. [See
generally, Compl., ¶¶ 181-183, 191-195, 184, 198]. Doe attempts to plead this hostile
environment by making allegations about virtually every facet of her TCU experience:
Inconsiderate Dorm Roommate. In January 2018, Doe’s white female dorm
roommate moved in first, leaving Doe without the closet, desk and other
space Doe desired. When Doe asked TCU to reassign a different
roommate, TCU granted her request, and Doe moved to another room to
with a new roommate who was a racial minority. [Compl., ¶ 69].
Scholarship. Doe alleges TCU’s tuition and costs are exorbitant. [Compl.,
¶70]. Doe alleges TCU awarded Doe a scholarship to defray a substantial
portion of her “fees and costs” [Compl., ¶70], but not her tuition. Doe, a
dependent of parents who are veterans, separately applied for G.I. benefits
covering her tuition. [Compl., ¶72]. 2 Doe claims she applied for the G.I.
benefits because TCU revoked her partial transfer scholarship without
explanation, leading to her prematurely exhausting G.I. benefits that she
would have used later to pay for post-graduate studies. [Compl., ¶¶ 7172]. 3
Delay in Admission to Honors College. Honors College policy requires a
transfer student, like Doe, to seek admission after 12 graded course hours
at TCU. Doe admits she was advised of the policy and waited for admission
to the Honors College until after she took the 12 hours. Doe claims an
unidentified TCU professor of Doe believes that white transfer students are
admitted without the required 12 hours. [Compl., ¶ 73].

A dependent of a veteran who receives full Yellow Ribbon benefits for a semester basically pays no tuition.
38 U.S.C. § 3317; 38 C.F.R. § 21.9700. TCU participates in the Yellow Ribbon program.
https://admissions.tcu.edu/infohttps://www.benefits.va.gov/gibill/yellow_ribbon/2017/states/tx.asp;
for/veterans.php; http://www.reg.tcu.edu/yellowribbon.asp. Under the Yellow Ribbon program, the
participating educational institution essentially writes off the amount of tuition which is not paid by the federal
government under the G.I. Bill.
3 Because the $6,000 per semester transfer scholarship would not have covered much of Doe’s tuition,
Doe’s claim is essentially that she desired to pay what she alleges is “exorbitant” tuition [Compl., ¶ 70] to
TCU for her undergraduate studies, while saving her G.I. benefits for post-graduate school.
2

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Moot Court Team. The professor paired Doe with a racial minority
teammate, did not give her the individualized attention he gave whites, and
did not watch her oral argument during one competition. [Compl., ¶ 75].
Classroom Seating. Doe objects that one teacher did not assign seating for
the adult students, so as to require that she and whites sit directly next to
each other in class. [Compl., ¶ 84-85]. Doe claims that as a result she was
isolated and sat alone in that class, since the white students moved away,
and she felt demeaned when the professor did not stop a white student who
stated ‘all black people are on welfare.’ [Compl., ¶ 85].
Group Research Project. Despite TCU’s obligations under FERPA 4 to
protect the privacy of certain student educational records, Doe alleges that
her group members should have been entitled to faster and better access
to student data during their school project studying Honors College
admissions. [Compl., ¶¶ 87-88].
TCU Summer Program in Washington, D.C. Doe describes a host of
complaints ranging from undesirable Washington D.C. roommate
assignments, hotel accommodations, bedbugs, Washington D.C. summer
heat, excessive walking, accessibility to instructors, inferior birthday
celebrations, mishandling of sparklers on her birthday cake, persistent
requests by faculty that Doe be more engaged in participating in the
program, and being asked to sit next to Dr. Snow. She claims that when her
D.C. roommates arrived at the room first, they took the best sleeping
arrangements and too much closet space, and were insensitive when she
arrived later. She complains her D.C. roommates failed to sleep in the same
double bed, which relegated Doe to the room’s sofa bed, and they hogged
the bathroom. [Compl., ¶¶ 94-111].
Although Doe’s complaint is lengthy and verbose, a close examination reveals that
she fails to sufficiently state a claim of intentional discrimination or deliberate indifference.
In her discrimination allegations, Doe makes conclusory mention that she was treated
differently than whites. But her discrimination allegations do not offer sufficient detail to
suggest that their circumstances were sufficiently identical to Doe’s. “[A] student who is a
member of a protected class must show that other students not in the protected class
were ‘treated differently under circumstances “nearly identical” to [the student’s].’”

4

The Family Educational Rights and Privacy Act is sometimes referred to as FERPA. 20 U.S.C. § 1232g.

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Herndon v. Coll. Of Mainland, No. G-06-0286, 2009 WL 367500, *29 (S.D. Tex. Feb. 13,
2009) (citation omitted). Her allegations of alleged racial animus and gender bias are
conclusory and hence, under Twombly, are legally insufficient. Doe’s mere belief that
TCU’s actions were taken for discriminatory or retaliatory reasons is not enough to
establish discrimination under Titles VI and IX. See Subbiah, 2011 WL 1771806, at *6
(citing Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010)). Doe’s
subjective opinion is not sufficient to create a triable issue. See Swanson v. General
Servs. Admin, 110 F.3d 1180, 1189 (5th Cir. 1997); see also Mohamed for A.M. v. Irving
Indep. Sch. Dist., 252 F. Supp. 3d 602, 627–28 (N.D. Tex. 2017) (holding that a plaintiff’s
subjective opinion, without more, is insufficient to establish a claim of discrimination).
Even assuming that Doe has plead facts showing unfair treatment by fellow students or
unfair decisions by TCU faculty, she does not state a claim; Title VI does not protect
individuals from unfair decisions but instead ones made with discriminatory intent. Bisong
v. Univ. of Houston, 493 F. Supp. 2d at 904–05 (S.D. Tex. 2007) (citing Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1997)).
With respect to her complaints about housing, alleged loss of scholarship, delay in
admission to the Honors College, the moot court team and tournament, classroom
seating, the group project, and the D.C. summer program, she does not allege any
specific facts that would show the acts were taken with intent to discriminate based on
her race or gender. She admits that when she demanded to be moved within her dorm,
TCU granted her request. Doe was never denied any housing. She fails to allege any
facts that another room she preferred was available during the middle of the semester but
was refused due to her race or gender, nor does she explain why being assigned a racial

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minority roommate is discriminatory.
Doe admits TCU encouraged minority enrollment, initially provided her with a
limited scholarship, admitted her to the Honors College, and subsidized her attendance
at the summer Washington D.C. course. Those actions certainly do not indicate
discriminatory intent on the part of TCU. Doe agrees TCU followed its Honors College
admission policy for transfer students in her case, yet she complains (based on what
unidentified persons told her) that unidentified white students were treated better. But she
does not identify any specifics on ‘nearly identical’ white students who did not meet the
12-hour requirement who were admitted into the Honors College, or whether this occurred
during the period the policy was in effect. See Herndon, at *29. Her insufficient allegations
are based on information that “she learned from classmates and faculty” and she fails to
identify the classmates or the faculty who provided the information. [Compl., ¶ 73, p. 35].
Her grievances about her participation in moot court do not support an inference
of intentional race or gender discrimination. Her Amended Complaint conveniently fails
to mention that her original moot court partner was a white male but that due to the team
participants’ busy schedules, the participants themselves changed partners or that the
partners were paired based on the subjects they desired to debate. Her complaint that
the instructor would not meet with her but regularly met with others is too unspecific and
generalized to support a claim of intentional discrimination. She does not allege dates
and times of any requested meeting with the instructor, the identities of other team
members allegedly preferred by the instructor, or facts suggesting the reason for the
instructor’s actions were due to race or gender. Nor does Doe explain how, during a
competition when the team members are competing at the same time, the instructor could

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simultaneously watch all the multiple teams. Her assertion that the instructor’s actions
“brought it home” [Compl., ¶ 76] that these actions are the result of institutional racism in
pure conjecture. Doe’s assertions that the complained of actions were motivated by racial
or gender bias “are exactly the type of ‘labels and conclusions,’ and ‘the-defendantunlawfully-harmed-me-accusations’, which are insufficient to state a claim for relief or
survive a motion to dismiss.” See Easley v. Univ. of Tex. at Arlington, 984 F. Supp. 2d
631, 636 (N.D. Tex. 2013) (quoting Iqbal, 556 U.S. at 678). 5
As it relates to her classroom seating complaint, Doe does not allege that the
instructor engaged in any affirmative conduct in seating the students in a discriminatory
fashion or creating a discriminatory seating chart, and she fails to allege TCU has a legal
duty to over-ride adult students’ choices about where they choose to sit in class. 6 Doe
appears to have issues with the instructor’s teaching method, and one controversial
classroom comment by one student, which she found subjectively offensive. But those
allegations, even if true, do not state a claim for intentional discrimination by TCU.
Doe makes general allegations of racism and gender bias in TCU’s programs
without sufficient facts. Nowhere in the Complaint does Doe plead any particularized
facts of derogatory or racial epitaphs, or any negative comment about her race or gender,
by any TCU faculty member, staff member or official that would support intentional

Doe does not sufficiently allege disparate treatment claims by pleading facts showing students in nearly
identical circumstances to Doe were treated more favorably. See Herndon, 2009 WL 367500, at *29; Mawle
v. Texas A&M Univ./Kingsville, 2010 WL 1782214, *13 (S.D. Tex. April 30, 2010)(Title XI claimant must
show he was treated differently from similarly situated students who are not members of the protected class
to raise an inference of intentional discrimination). Her generalized disparate treatment allegations [Compl.,
¶¶ 20, 75, 88 (p. 43), 187, 201] and about whites on the moot court team are not sufficient to prove
intentional discrimination. Moreover, to the extent Doe is claiming liability under a disparate impact theory,
her case still fails. More recent cases have held that disparate impact claims are not viable under Title IX.
Doe No. 1 v. Baylor Univ., 240 F. Supp. 3d 646, 657 n. 3 (W.D. Tex. 2017). To the extent Doe pleads
disparate treatment and or disparate impact claims, TCU moves these claims be dismissed.
6 Nor does Doe mention that she actually preferred to sit alone in the back, for this particular class.
5

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discrimination. She fails to sufficiently plead facts indicating that her race or gender was
a substantial motivating factor in any alleged adverse education action, and she fails to
sufficiently plead any TCU official had actual knowledge of any alleged discrimination
much less that they responded with deliberate indifference. To the contrary, when she
made complaints about the summer program to the Title IX officer, an investigation was
undertaken. [Compl., ¶¶ 122, 123, 129-130]. Doe’s contention that Dr. Turner and TCU’s
Title IX Office did not investigate and ignored Doe’s complaints are belied by her
inconsistent allegations. They range from Dr. Turner doing nothing, to interviewing Doe
and her mother within a couple of weeks of the ending of the summer course, and again
a month later.[Compl., ¶¶ 122, 130]. Doe admits Leigh Holland actually reached out to
Doe and was actively investigating and interviewing witnesses. [Id., ¶ 131]. Doe makes
no allegations that the Title IX Office deviated from any of its policies or guidelines in
conducting its investigation of Doe’s complaints or that it conducts complaints of males or
non-minority females differently. Deliberate indifference requires a showing that TCU’s
response was clearly unreasonable under the known circumstances. Klocke v. Univ. of
Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019). “Deliberate indifference to
constitutional rights is a very high standard of misconduct.” Plummer v. Univ. of Houston,
860 F.3d 767, 778 (5th Cir. 2017). Doe may not be satisfied with how the investigation
was handled, but TCU clearly has not acted unreasonably. 7
2.

Doe has not been deprived of any of the benefits of any education
program or activity at TCU

TCU also moves to dismiss Doe’s theory that TCU maintains an official policy of deliberate indifference of
investigating race discrimination complaints made by African-American females that constitutes intentional
discrimination. [Compl., ¶¶ 57 (pp. 25-26), XX (p. 66, 131-133]. This theory is not cognizable. Courts that
have allowed the claim to go forward under Title IX have limited it to sexual assault cases and not
discrimination based on race. This issue is briefed in Doe 2 and Doe 3’s briefs. TCU seeks dismissal of any
such claims.

7

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Doe’s discrimination claims should also be dismissed because she cannot show
any alleged discrimination resulted in the denial any educational opportunities, programs
or that she was otherwise excluded from a program or benefit. As previously noted, she
alleges TCU intentionally solicited minority students to apply for admission to TCU. She
does not allege she has ceased being a TCU student, and in fact she is at present a TCU
student; she does not allege she was suspended, placed on probation, or that TCU took
an action which reduced her grade point average. She was never denied housing. In
what she describes as her worst experience at TCU, the D.C. summer course, she alleges
she “remained active and excelled academically.” [Compl., ¶ 124]. There is no allegation
that she was unable to secure a specific class or was unable to take a required course or
class at TCU. She makes no allegation that the alleged loss of a scholarship and the
substitution of veteran G.I. Bill benefits has in any way prevented her from continuing her
education at TCU, or she has sustained a current financial loss8 as a result of not being
eligible for the scholarship.
She admits that she was admitted into TCU’s Honors College and does not allege
that she is no longer an Honor College student. She admits that she participated in the
moot court program, and she does not allege she failed to successfully complete the
tournament. There is no allegation that anyone at TCU refused, barred her entry, or
otherwise prevented her from entering into any classroom, attending lectures, or receiving
an education. Doe raises no allegation that she was ever disciplined, suspended or
dismissed from TCU. 9

To the contrary, Yellow Ribbon G.I. benefits defray tuition, and hence leave her currently in a much better
position financially that the transfer scholarship, which her pleadings state only covered fees and costs.
9 The only educational benefit of which Doe could reasonably argue of which she was deprived is receiving
no credit for the Honors College 2019 D.C. summer program. But any such denial was a result of Doe
8

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Doe makes no allegation that the group research project in the course “Engaging
Difference and Diversity” was not completed, that she received a poor grade, or that she
did not receive course credit in that course. [Compl., ¶ 87]. Doe admits TCU encouraged
her to participate in the summer D.C. program and offered her money to enable her to
attend. [Compl., ¶ 97]. Despite Doe’s current expression of disappointment about the
D.C. program 10 and her complaints about the activities, programs and events of the D.C.
program, she does not allege that she was intentionally excluded or refused participation
or involvement in any of its activities or events. In fact, Doe concedes “she pressed on”
[Compl., ¶ 113, p. 55] and “remained active and excelled academically throughout.”
[Compl., ¶ 124, p. 62].
3.

Doe’s allegations of a hostile educational environment are not
actionable as they do not show a negative impact upon her receipt of
education benefits and participating in educational programs

To maintain a Title VI and Title IX claim for a racially hostile environment, Doe must
show (1) that racial harassment was so severe, pervasive, 11 and objectively offensive that
it deprived her of access to an educational opportunity; and (2) that TCU acted with
deliberate indifference to the harassment. Davis v. Monroe Cty. Bd. of Educ., 526 U.S.
629, 648–52 (1999). These elements are judged by a “totality of the circumstances”
analysis, including the frequency and severity of the conduct, whether it is physically

having plagiarized at least two written assignments. Doe essentially admits having plagiarized the
assignments.
10 To the extent the Court can consider assertions in the separate motion to dismiss filed by defendant
Aaron Chimbel, it is noted that on July 28, 2019, Doe advised Professor Chimbel she enjoyed the week he
led the program.
11 To be pervasive, the alleged harassment must be more than episodic, regardless of the effect the
harassment may have on a plaintiff’s mental state, since pervasive “means that the challenged incidents
are ‘more than episodic; they must be sufficiently continuous and concerted.’” Lopez v. Webster Cent. Sch.
Dist., 682 F. Supp. 2d 274, 285 (W.D.N.Y. 2010) (quoting Hayut v. St. Univ. of N.Y., 352 F.3d 733, 745 (2d
Cir. 2003).

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threatening or humiliating, and whether it unreasonably interferes with the student’s
educational opportunities. Hendrichsen v. Ball St. Univ., 107 F. App’x 680, 684 (7th Cir.
2004). “The harassment must have ‘concrete negative effect’ on the victim’s education”
Fennell, 804 F.3d at 410, (quoting Davis, 526 U.S. at 654). The severe, pervasive and
objectively offensive harassment must be “more than the sort of teasing and bullying that
generally takes place in school.” Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,
647 F.3d 156, 167 (5th Cir. 2011) (citation omitted). For the educational harassment to
rise to the level of actionable conduct, courts have required a showing of significant
negative impact on the student’s education. See Herndon, 2009 WL 367500, at *26.
Here, Doe’s pleadings do not sufficiently allege that she was denied the benefits of an
education at TCU.
4.

Doe’s admission of plagiarism is not the product of race or gender
discrimination and is the sole reason for any alleged loss of an
educational benefit

Doe received no credit for the D.C. summer program. [Compl., ¶ 169].

Doe

essentially admits she did plagiarize. Nowhere does she allege that TCU deviated from
its plagiarism policy. Doe does not allege the NC grade reduced Doe’s overall GPA or
that it is a permanent mark on her transcript. Doe does not plead that she received a
more severe sanction, such as being placed on probation, suspension, or expulsion; in
fact, a NC is an extremely lenient sanction.
Nothing in the Amended Complaint indicates TCU addressed her plagiarism in a
more adverse way than it handled that of a white student under ‘nearly identical’
circumstances. See Herndon, supra, at *29. 12 The only inference that flows from Doe’s

12 If Doe is alleging that TCU’s academic disciplinary proceeding upholding Doe’s plagiarism was the
product of an erroneous outcome or selective enforcement standard due to her race or gender under Yusuf

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allegations was that she was disciplined for plagiarism, not from any racial animus or
gender discrimination. While Doe in a conclusory fashion contends that TCU did not
follow published academic appeal procedure protocols [Compl., ¶ 170] she fails to plead
facts showing how the procedure was not followed. There is no reasonable basis to
conclude that the report of her plagiarism by Professor Chimbel and the imposition of NC
for the summer course is a result of discrimination based on Doe’s race or gender. 13 Doe
is essentially asking for a judicial appeal of TCU’s academic decision pertaining to her
plagiarism, and TCU urges the court to refrain from revisiting its academic decision.
5.

Doe’s claims of retaliation under Title VI and Title IX fail

Doe’s retaliation claim is based on the following timeline:
•

On or about July 29, 2019, Doe informed Dr. Turner, TCU’s Title IX officer,
that she intended in the future to make some sort of unspecified complaint
about the summer program. [Compl., ¶ 122].

•

On August 3, 2019, Dr. Snow advised Doe that Snow knew of her plagiarism.
[Compl., ¶ 126].

•

On August 16, 2019, Doe gave a video statement to Turner, and on August 26,
2019, she spoke with Ms. Holland in his office. [Compl., ¶ 130].

•

On August 27, 2019, Dr. Mack provided her notice that he had recommended
an NC grade for the summer course due to her plagiarism. [Compl., ¶ 169].

•

On September 4, 2019, Associate Dean Garnett denied her appeal and notified
her she would receive an NC, mentioning her plagiarism. [Compl., ¶ 169].

v. Vassar Coll., 45 F.3d 709, 715 (2d Cir. 1994), her allegations are too conclusory to survive a Rule 12(b)(6)
motion. She alleges no facts casting doubt on the accuracy of the outcome of the lenient academic
disciplinary sanction of NC Doe received for the summer program. Notably, Doe does not plead that she
did not plagiarize. Nor is there any allegation that the decision to uphold the NC and plagiarism sanction
was motivated by gender or race bias. Moreover, Doe’s scant and factually deficient allegation that an
unidentified student turned in “incomprehensible doodles” and received course credit [Compl., 172] is wholly
insufficient and generalized to consider as a similarly situated comparator.
13 To the extent the Court can consider the declaration of Aaron Chimbel, a co-defendant, Professor
Chimbel discovered Doe’s plagiarism without knowledge of any of Doe’s complaints. It does not appear
Doe pleads any allegations otherwise.

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To establish a prima facie case of Title IX retaliation, plaintiff must show that (1)
she engaged in protected activity, (2) the decision-maker knew of the protected activity,
(3) plaintiff suffered an adverse school-related action, and (4) a causal connection exists
between the protected activity and the adverse action. Gordon v. Traverse City Area Pub.
Sch., 686 F. App'x 315, 320 (6th Cir. 2017); see generally Lowry v. Tex. A&M Univ. Sys.,
11 F. Supp. 2d 845, 911 (S.D. Tex. 1998). If a plaintiff succeeds, the school may rebut
that presumption by “articulating some legitimate, nondiscriminatory reason for its
action.” Id. Should the school do so, the burden shifts back to plaintiff to undermine its
proffered reason as pretextual. Id. Ultimately, a plaintiff must show that the retaliatory
adverse action would not have occurred but for plaintiff’s legally protected complaint.
Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013).
Doe’s retaliation pleadings are insufficient to plead a “but-for” retaliation under the
Twombly standards. Under the timeline in her pleadings, Dr. Snow told Doe she was
aware of her plagiarism on August 3, 2019; assuming, for the sake of argument after that
date Doe made a formal protected complaint and then on August 16, 2019, Doe gave a
video interview with Dr. Turner, this occurred after Doe’s plagiarism and after Dr. Snow
advised Doe she was aware of it. 14 But what is critical is that Doe does not allege that
Chimbel, who discovered Doe’s plagiarized paper that was turned in the day before, on
July 28, 2019, was aware of Doe’s July 29, 2019 complaint of discriminatory treatment
when Chimbel notified Dr. Snow of the plagiarism. The plagiarism is what set in motion
In an attempt to salvage her retaliation claim, Doe now alleges vaguely in her Amended Complaint that
she informed TCU of her mental state to Turner on July 29, 2019. But she fails to foreclose if the complaint
was actually made by Doe or another person, how it was communicated to Turner (in writing, by email or
indirectly,) or if Doe welcomed that no action be taken by Turner at that time. [Compl., ¶ 122]. Doe admits
she did not begin “working to formalize her complaints” until August 16, 2019. [Compl., ¶ 130]. She has not
sufficiently plead that she initially made a protected complaint to Turner; advising someone you intend to
file a complaint (of some sort) later is not itself a legally protected complaint.
14

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the need for Doe to receive the lenient NC sanction. It was not the product of unlawful
discriminatory action toward Doe. Then, in a situation where Doe’s pleadings support the
inference she in fact engaged in plagiarism (and obviously deserved some discipline),
TCU issued an extremely lenient sanction, i.e., the NC grade. TCU did not expel,
suspend, place on probation, or take an action which lowered Doe’s GPA as a result of
her misconduct. To qualify as “adverse,” an educational action must be sufficiently severe
to dissuade a “reasonable person” from engaging in the protected activity. See Burlington
North. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Gordon v. Traverse City Area
Pub. Sch., 686 F. App'x 315, 320 (6th Cir. 2017); Lucero v. Nettle Creek Sch. Corp., 566
F.3d 720, 728–29 (7th Cir. 2009). For instance, placing a plaintiff on academic probation
and noting the same on an education record that affects licensure and ability to practice
medicine has been held to be a materially adverse action. Sadeghian v. Univ. of S.
Alabama, No. 18-00009-JB-B, 2018 WL 7106981, at *12 (S.D. Ala. Dec. 4, 2018); see
also Emeldi v Univ. of Or., 698 F.3d 715, 725–26 (9th Cir. 2012) (holding that a professor
resigning as a graduate student’s advisor, effectively prevented the student from
obtaining a degree, was deemed to be materially adverse); see also Papelino v. Albany
Coll. of Pharm. of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011) (expulsion of a student
following a report of cheating held to be materially adverse). TCU’s NC for the course
was not, under these authorities, sufficiently severe to constitute an adverse action.
Doe also fails to plead facts indicating that Dr. Garnett, who was not on the D.C.
trip, and who she alleges made the ultimate decision on her plagiarism appeal, had
knowledge she had made a legally protected complaint. Doe does not allege Garnett was
involved in the alleged conspiracy plot hatched by Snow, Mack and Chimbel on August

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3, 2019. [Compl., ¶ 125]. Doe merely leaps from this allegation to another conclusory
allegation that Garnett was aware of Doe’s D.C. trip complaints. [Compl., ¶ 169]. Nowhere
does Doe ever allege if, how or when Garnett became aware of Doe’s complaints while
considering her NC and academic misconduct appeal. Knowledge by the decision-maker
is essential, to show retaliatory motive. See Gordon, 686 F. App’x 315 (6th Cir. 2017).
The mere fact that she had a complaint about her treatment in D.C. pending at the time
she requested a review of the plagiarism decision does not lead to a reasonable inference
that the denial of her appeal was in retaliation for her complaint. See Doe v. Princeton
Univ., 790 F. App’x 379, 385 (2d Cir. 2019).
6.

Doe’s claim of employment discrimination and retaliation should be
dismissed

Doe alleges the TCU Honors College offered her a part-time job as a desk
assistant for which she never applied. She apparently thought it was good idea to take
the job, but she now makes a myriad of complaints about the job, her duties, her pay, and
her scheduled hours. [Compl., ¶¶ 77-83]. Doe alleges the legal conclusion that TCU’s
employment actions toward her were motivated by her race, and alleges only generally
that unidentified white “counterparts” were treated better. [Compl., ¶ 79].
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., is the federal civil rights
act which addresses employment discrimination. Doe’s complaint does not mention Title
VII. Title VII has an administrative exhaustion requirement. 42 U.S.C. § 2000e-5(c)(e).
Title VII requires employees to exhaust their administrative remedies before seeking
judicial relief. Id. “Private sector employees must satisfy this requirement by [,among
other things,] filing an administrative charge with the EEOC.” McClain v. Lufkin Indus.,

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Inc., 519 F.3d 264, 273 (5th Cir. 2008) (citation omitted). In the Fifth Circuit, 15 a plaintiff
cannot sidestep Title VII’s administrative exhaustion requirements by pleading an
employment discrimination case under Title IX. See Lekoski v. James, 66 F.3d 751, 754
(5th Cir. 1995). Nowhere does Doe assert she exhausted Title VII’s administrative
requirements.
Even if Doe had exhausted administrative requirements, her pleadings are still
insufficient. To state a discrimination claim for disparate treatment, she has to plead
sufficient facts showing she was treated differently from a white employee under ‘nearly
identical’ circumstances. See Herndon, supra, at *29. Her conclusory pleadings
comparing her employment situation to unidentified white “counterparts” and her
conclusory claim she was “supposedly hired to perform identical duties to her white
counterparts” [Compl., ¶¶ 79, 82] are insufficient. She fails to plead facts showing the job
titles, duties, responsibilities, seniority, of her white “counterparts” were nearly identical
to hers. The facts she has pleaded negate that she suffered retaliation related to her
employment based on her complaint. She pleads that she made a formal complaint of
discrimination on August 16, 2019 to Dr. Turner at TCU, and that she received a $2 an
hour raise seven days later. [Compl., ¶¶ 82, 130]. Retaliation claims are based on
“adverse” employment actions, which for example, which might involve a substantial pay
cut, but not a pay raise. In addition, Doe fails to plead any facts about who made any
allegedly retaliatory employment decisions she asserts, or facts showing any decisionmaker pertaining to her employment had knowledge of a complaint at the time of a
decision about her. The Fifth Circuit has determined that, in order to establish the

15

Some other circuits interpret the interplay between Title IX and Title VII differently.

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causation prong of a retaliation claim, the employee should demonstrate that the
employer knew about the employee’s protected activity. See Medina v. Ramsey Steel
Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001); see also Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If an employer is unaware of an
employee's protected conduct at the time of the adverse employment action, the employer
plainly could not have retaliated against the employee based on that conduct.”); Manning
v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003). 16 Any retaliation claim
relating to employment should be dismissed.
7.

Doe’s Section 504 Rehabilitation Act and ADA claims are not plausible

For Doe to maintain a claim under either statute, her burden is to show she: (1)
has a qualifying disability; (2) is “otherwise qualified” to participate in the educational
program; and (3) was excluded on the basis of her disability. Shaikh v. Texas A & M
Univ. Coll. of Med., 739 F. App’x 215, 219, 224 (5th Cir. 2018). Under Section 504, she
must allege she was discriminated against solely on the basis of her disability. 29 U.S.C.
§ 794(a). Under the ADA, she must show her alleged disability was a motivating factor
in the exclusion. Pinkerton v. Spellings, 529 F.3d 513, 516–10 (5th Cir. 2009).
Doe alleges her disability was asthma. [Compl., ¶ 205]. 17 Assuming for the sake
of argument that Doe’s asthma is a disability, Doe fails to allege how respiratory issues
associated with asthma resulted in her being “excluded,” i.e., that she was prevented from
participating in the Washington D.C. summer session.

Doe’s pleading conclusively

Nor has Doe plead that anybody who was aware of her complaints influenced any decision-maker who
made employment decisions about her.
17 A disability is an impairment which substantially limits one or more major life activities, 42 U.S.C.
§ 12102(1), such as learning, thinking, communicating, or working, among other activities. Id.,
§ 12102(2)(A).
16

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demonstrate she was not excluded; she pleads that, although her asthmatic condition
made it challenging to walk in the summer heat in Washington D.C., “miraculously” she
“remained active and excelled academically throughout.” [Compl., ¶ 124]. Indeed, she
must have been able to perform a great deal of walking, despite her asthmatic condition,
since she pleads she developed numerous blisters on her feet from all of her walking.
Other than pleading a conclusion that she “sacrificed receiving academic information and
course participation” [Compl., ¶ 113], she identifies no building she failed to see, or
program or event which she missed in D.C., due to her asthma. In short, she fails to
sufficiently plead she was “excluded” from a program based upon disability.
To the extent she alleges TCU’s NC decision was an “exclusion”, she pleads no
causal connection between her asthma, on the one hand, and TCU’s NC decision, on the
other. In addition, she alleges Dr. Garnett made the final NC decision, and she pleads
no facts suggesting Garnett had any knowledge of her disability or that he had any motive
to mistreat a student because of asthma. Where a decision-maker has no knowledge of
a person’s disability, it is impossible for that decision-maker to be motivated to
intentionally discriminate based on disability. Scott v. Shoe Show, Inc., 38 F. Supp. 3d
1343, 1360–61 (N.D. Ga. 2014).
Simply put, Doe was not able to meet TCU’s academic policy prohibiting
plagiarism. Courts show deference to an educational institution’s judgment regarding a
student’s qualification when examining disability discrimination claims. McGregor v. La.
St. Univ. Bd. of Supervisors, 3 F.3d 850, 858–59 (5th Cir. 1993). TCU respectfully asks
that the Court reject Doe’s attempt to obtain a judicial reconsideration of TCU’s academic

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standards and decisions concerning her plagiarism, under the guise of Doe’s disability
discrimination suit.
Doe’s failure to accommodate claim should be dismissed.

She pleads in a

conclusory fashion that, when her asthma made her walking in Washington D.C. difficult
for her, TCU failed to accommodate her. [Compl., ¶ 217]. She must establish: (1) she
was a qualified individual with a disability; (2) the disability and limitations were known;
and (3) the covered institution failed to make reasonable accommodations for such known
limitations. Neely v. Pseg Tex. Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). In
considering an accommodation request, an educational institution is not required to make
fundamental modifications in program requirements, provide services of a personal
nature, or provide aids or services which will result in undue financial hardship or lowering
program standards. Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D.
Tex. 1996).
Doe’s disability accommodation pleadings are deficient, because she fails to plead
the accommodation she sought, which TCU supposedly denied. 18 See Mesa v. City of
San Antonio, No. CV-SA-17-CA-654-XR, 2017 WL 5924263, at *4 (W.D. Tex. Nov. 29,
2017)(granting defendant’s motion to dismiss where plaintiff’s failed to allege he
requested a specific accommodation or that a reasonable accommodation was denied).
The plaintiff has the burden of identifying “the existence of some accommodation”
necessary for the plaintiff to meet the essential requirements of the program at issue.
Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 190 (2d Cir.

18 Doe alleges she informed Dr. Gooding of her “worsening condition,” and she sought “some guidance
and/or relief from Dr. Gooding” [Compl., ¶¶ 101-102]; Doe alleges she sought “sympathy and reasonable
accommodations” from Dr. Snow, but identifies no specific accommodations she needed and her complaint
identifies none. [Compl., ¶¶ 109-110].

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2015) (citation omitted). TCU had no control over the heat Washington D.C. was
experiencing or distance between the buildings the group was to visit in D.C. Doe admits
she had access to D.C.’s extensive public transportation [Compl., ¶ 100] and was allowed
the accommodation of receiving a ride through Lyft instead of walking, when she desired,
although she alleges that her teacher scowled about her taking Lyft and reminded her
that walking can be healthy. [Compl., ¶¶ 107, 113]. In this case, the only conceivable
“accommodation” would be TCU completely excusing her plagiarism, and as a matter of
law that type of “accommodation” would not be reasonable.
8.

Doe’s ADA Title III claim for monetary damages and Rehabilitation Act
claim for money damages for mental anguish should be dismissed

Doe appears to plead for the recovery of emotional distress damages
(“psychological and physiological harm”) under ADA Title III and the Rehabilitation Act.
[Compl., ¶ 210, 218]. The Fifth Circuit has held there is no claim for money damages by
a private individual under Title III of the ADA. Perez v. Doctors Hosp. at Renaissance,
Ltd., 624 F. App’x 180, 183 (5th Cir. 2015). Mental anguish damages are not available
under the Rehabilitation Act. Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673,
680 (5th Cir. 2020). 19
9.

All of Doe’s negligence theories fail to state a claim

Doe asserts claims of negligence, gross negligence, negligent hiring, negligent
retention, negligent supervision, negligent training and negligent misrepresentation.
[Counts VI–VIII]. Liability for negligence requires a showing that a defendant owes a duty
of care, the breach of which proximately causes damages to a plaintiff. Thapar v. Zezulka,

19 TCU also seeks dismissal of all claims for punitive damages Doe seeks. Doe 1 v. Baylor Univ., No. 16cv-173-RP, 2020 WL 1557742, *6 (W.D. Tex., April 1, 2020).

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994 S.W.2d 635, 637 (Tex. 1999). TCU challenges the sufficiency of Doe’s pleading on
duty, breach, causation and damages.
Doe makes conclusory assertions that TCU “owed a legal duty” to “possess and
apply the knowledge and to use the skill and care that is used by a reasonable and
prudent educational institution.” [Compl., ¶¶ 233, 241]. But Doe does not plead specific
facts establishing the existence of or the scope of duty of care owed to Doe. Doe
complains of unspecified conduct of other TCU students and TCU faculty. But Doe fails
to state any specific conduct that would give rise to a legal duty. When considering
whether a legal duty exists, courts consider the risk, foreseeability and likelihood of injury
weighed against the social utility of the actor’s conduct, the burden of guarding against
the injury and the consequences of placing the burden on the defendant. Greater Hous.
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). None of her factual allegations
address these necessary legal considerations for determining whether a legal duty exists.
No special relationship exists between a private university and its adult students. Boyd v.
Tex. Christ. Univ., Inc., 8 S.W.3d. 758, 760 (Tex. App.—Fort Worth 1999, no pet.). Nor
does TCU have a duty to control the conduct of third person students or TCU agents.
Phillips, 801 S.W.2d at 525.

Doe does not allege any prior acts of the individual

defendants or other TCU agents that might have put TCU on notice of a foreseeable risk
of harm to Doe. Doe’s allegations fail to identify specifically how any alleged duty was
breached under any negligence theory. [Compl., ¶¶ 234-236]. There is no allegation of
how a similarly situated university would have acted differently under the same or similar
circumstances. Nor has Doe specifically alleged how any act or omission of a TCU
student, faculty or staff was a substantial factor in bringing about any alleged

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psychological and physiological injury. [Compl., ¶¶ 234-236]. See Texas Pattern Jury
Charges: General Negligence, PJC 2.4 (2016). Because TCU owes no duty to Doe based
on the allegations in the Amended Complaint, and the allegations fail to state a plausible
claim on breach of duty or proximate cause, her negligence and gross negligence claims
should be dismissed.
TCU also challenges that Doe has adequately pleads a viable negligent hiring and
supervision claim. Doe does not plead sufficient facts to state a claim that TCU breached
either of these duties. Doe fails to allege facts showing TCU negligently hired or retained
faculty or staff. Doe fails to allege any credentials or qualifications that were lacking on
the part of any TCU actors. Doe does not allege that TCU failed to investigate any
qualifications, credentials or prior actions in a manner that would have put TCU on notice
that hiring, or continuing to employ, would pose an unreasonable risk of harm to Doe, or
otherwise breach of a legal duty owed to Doe. Doe fails to allege any different or
additional actions TCU should have taken in connection with hiring, retaining, supervising,
or training such individuals. Doe also fails to plead sufficient facts concerning causation.
Doe generically alleges TCU was aware of some conduct and failed to act, but Doe’s
pleadings do not connect any specific conduct toward her to any factually specific act of
negligent hiring or retention. Although she complains about certain conduct of individual
defendants, she fails to plead facts connecting the dots to identify how this conduct was
causally related to any actor’s retention or supervision. Doe simply has not provided
sufficient allegations that TCU failed to meet the standard of care for a similar situated
university in hiring, retaining, supervising and training these particular employees nor how
a breach of that standard proximately caused any harm to Doe.

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10.

Page 29 of 30 PageID 540

Doe’s fraud, negligent misrepresentation and DTPA allegations are
insufficient and should be dismissed

Claims alleging fraud, negligent misrepresentation, and violations of the DTPA are
subject to the requirements of Federal Rules of Civil Procedure 9(b). See Patel v. Holiday
Hosp. Franchising, Inc., 172 F. Supp. 2d 821, 825 (N.D. Tex. 2001). Doe has not satisfied
Rule 9(b). Shushany v. Allwaste, Inc., 992 F.2d 517, 521 (5th Cir.1993). Doe’s factual
allegations are insufficient. Likewise, Doe’s allegations of deceptive trade practices are
insufficient under Rule 9(b)'s heightened pleading requirements for the same reasons that
her allegations of fraud and negligent misrepresentation are insufficient under Rule 9(b).
11.

Doe’s assault claim against TCU should be dismissed

Doe’s conclusory allegations that Snow walked “menacingly” behind Doe and
another African American student and “aggressively shoved herself between the two
African Americans to break them up,” aggressively placed her hand on Doe’s back,
“driving her to the front of her peers,” [Compl., 103], pushed Doe’s back causing her to
stumble and driving her to the front of the group so Doe could see better, and took off her
jacket, folded her arms, and walked toward Doe, who has acknowledged she is 6 feet,
180 lbs, are not sufficient to plausibly state a claim of assault. See Waffle House, Inc. v.
Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). Likewise, Doe’s claims that Snow
assaulted Doe repeatedly throughout the trip, without Doe’s consent and causing injury
to Doe, and that Snow was aware her contact was unwelcome and offensive to Doe are
mere conclusions with no factual support.
B.

TCU requests that the Court decline to exercise supplemental jurisdiction
over Doe’s state law claims
In the event the Court dismisses Doe’s federal claims over which it had original

jurisdiction, TCU requests that the Court decline to exercise supplemental jurisdiction
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over or dismiss Doe’s remaining state law claims. 28 U.S.C. § 1367(c)(3). District courts
are given “wide discretion in determining whether to retain supplemental jurisdiction over
a state claim once all federal claims are dismissed.” Noble v. White, 996 F.2d 797, 799
(5th Cir. 1993).
IV. CONCLUSION
TCU requests that Doe 1’s case be dismissed.
Respectfully submitted,
/s/ George C. Haratsis_____
George C. Haratsis
Texas Bar No. 08941000
gch@mcdonaldlaw.com
Rory Divin
Texas Bar No. 05902800
rd@mcdonaldlaw.com
Jennifer Littman
Texas 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
TEXAS CHRISTIAN UNIVERSITY
CERTIFICATE OF SERVICE
The undersigned counsel certifies that the above and foregoing Defendant Texas
Christian University’s Motion to Dismiss Claims of Jane Doe No. 1 and Brief in Support
was served on all counsel of record receiving electronic notice from the court’s ECF
notification system.
/s/ George Haratsis____
George Haratsis
I:\09300\0102\14I7364.DOCX

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