Doe v. The University of Texas Health Science Center At San Antonio et al

Western District of Texas, txwd-5:2019-cv-00453

Response in Opposition to Motion, filed by Mary UTHSCSA-PM Doe, re [11] MOTION to Dismiss filed by Defendant The University of Texas Health Science Center at San Antonio, Defendant Marcel Noujeim

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8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARY UTHSCSA-PM DOE § Plaintiff § § vs. § § C.A. No. 5:19-cv-00453 DAE THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER § AT SAN ANTONIO and § MARCEL NOUJEIM § Defendants ________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS COMES NOW, Plaintiff "MARY UTHSCSA-PM DOE" to file this "PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS" ("Response") as follows: SUMMARY OF CONTENTS I. PROCEDURAL STATUS II. STANDARD OF REVIEW III. ARGUMENT AND AUTHORITIES IN RESPONSE A. Plaintiff Mary's Claims are not barred by res judicata. B. Plaintiff Mary has stated state a valid Title IX claim against Defendant UTHSCSA. C. Plaintiff Mary has stated state a valid Title IX claim against Defendant Noujeim. D. Plaintiff Mary has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim. E. Plaintiff Mary has stated a valid Section 1983 claim against Defendant Noujeim. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 1 glaw2019.09.22 8 F. Plaintiff Mary has asserted a valid claim under Section 504. G. Plaintiff Mary has asserted a valid claim under the ADA. H. Plaintiff Mary no longer is pursuing her request for relief under the Texas Constitution. I. Plaintiff Mary is no longer pursuing her claims related to the Educational Contract. IV. CONCLUSION I. PROCEDURAL STATUS 1. Pending before this Court is the following motion filed by Defendants THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO and MARCEL NOUJEIM: "DEFENDANTS' MOTION TO DISMISS" (Dkt.# 11) (hereafter, "MTD"). 2. Defendants' MTD is directed at Plaintiff's Second-Amended Complaint ("Complaint") (Dkt. # 6). 3. Plaintiff Mary offers this Response to Defendants' MTD. II. STANDARD OF REVIEW 4. A motion to dismiss is not proper where the complaint's factual matter allows the Court to draw a reasonable inference that the defendant is responsible for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 566 (2007). A complaint is sufficient if its allegations suggest that particular misconduct occurred. Twombly, supra at 556 - 558. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 2 glaw2019.09.22 8 5. As set forth hereafter in this Response, Plaintiff Mary's Complaint meets the foregoing described standard for pleadings. III. ARGUMENT AND AUTHORITIES IN RESPONSE 6. Defendants' MTD asserts various arguments for dismissal. As set forth in this Response, Defendants' MTD should be denied because: a. Plaintiff Mary's Claims are not barred by res judicata; b. Plaintiff Mary has stated a valid Title IX claim against Defendant UTHSCSA; c. Plaintiff Mary has stated a valid Title IX claim against Defendant Noujeim; d. Plaintiff Mary has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim; e. Plaintiff Mary has stated a valid Section 1983 claim against Defendant Noujeim; f. Plaintiff Mary has asserted a valid claim under Section 504; g. Plaintiff Mary has asserted a valid claim under the ADA; h. Plaintiff Mary no longer is pursuing her request for relief under the Texas Constitution; and i. Plaintiff Mary is no longer pursuing her claims related to the Educational Contract. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 3 glaw2019.09.22 8 7. In support of this Response, Plaintiff Mary also tenders herewith the Appendix attached hereto and incorporated herein by reference for all purposes which contains supporting documentation redacted to remove Plaintiff Mary's name. Further, certain references are made herein to a Motion for Leave which will be filed by Plaintiff Mary to amend her Complaint. A. Plaintiff Mary's Claims are not barred by res judicata. 8. Defendants' initial argument put forth in their MTD is that Plaintiff Mary's claims as set forth in Mary's Complaint (hereafter, "Mary's Claims") are barred as a matter of law due to the Texas law on res judicata. 9. Defendants' reliance on their res judicata argument centers around a filing in Texas State Court found at: Cause No. 2018-CI-17498, MARY UTHSCSA- PM DOE v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, in the 224th Judicial District Court of Bexar County, Texas. ("State Court Matter") (Appendix 001 through 015.) and the subsequent dismissal thereafter after the granting of a Plea to the Jurisdiction ("State PTJ") filed by Defendant UTHSCSA. 10. The State Court Matter included only Plaintiff Mary and Defendant UTHSCSA. Defendant Noujeim was not a party. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 4 glaw2019.09.22 8 11. The State Court Matter was brought solely for the purpose of informing Defendant UTHSCSA of the improper and illegal sexual harassment actions of the referenced "administrator" with the hope that a dialogue could be initiated between Plaintiff Mary and Defendant UTHSCSA, which might avert the need for more drastic legal action seeking damages. Unfortunately, such dialogue bore no fruit. 12. Because Defendant UTHSCSA's State PTJ was, by definition, an assertion that the Bexar County District Court had no jurisdiction to even consider the State Court Matter, no response to the State PTJ was filed; the State Court Matter was dismissed by the court's granting of the State PTJ; and no appeal was filed, as the granting of a State PTJ is not a determination on the merits for res judicata purposes because: subject matter jurisdiction is a prerequisite to entertaining the merits, and whenever a court finds a lack of jurisdiction it is obligated to go no further and dismiss. (citation omitted)…Such a judgment is, per force, not one "on the merits." Dallas Cty. Republican Party v. Dallas Cty. Democratic Party, 2019, Tex. App. LEXIS 7687, 2019 WL 4010776 (Tex. App.-Dallas 2019). 13. In retrospect, it was naive to believe that Defendant UTHSCSA would take the allegations against the "administrator" (who, indeed, is Defendant Noujeim) seriously and put a stop to his complained of improper and illegal sexual harassment. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 5 glaw2019.09.22 8 Most regretfully, the filing of the State Court Matter actually resulted in Defendant Noujeim increasing his improper and illegal sexual harassment of Plaintiff Mary. 14. Nonetheless, there was no res judicata bar created by the State Court Matter because Texas jurisprudence requires "a prior final determination on the merits by a court of competent jurisdiction" (hereafter, "Determination On The Merits Requirement"). Travelers Ins. Co. v. Joachim, 315 S.W.3d.860, at 862 (Tex.- 2010). 15. When determining whether claim preclusion or res judicata bars a subsequent proceeding in Federal Court after a prior filing in a state court, the Federal Court applies the law of the forum state, in this matter, being Texas. Weaver v. Texas Capital Bank N.A., 660 F.3d 900, 906 (5th Cir 2011). 16. Applying the previously cited Texas jurisprudence applicable to Plaintiff's State Court Matter, Texas jurisprudence holds that the granting of the State PTJ does not satisfy the Texas Determination On the Merits Requirement for there never was a "determination on the merits" as to Plaintiff Mary's State Court Matter. 17. Defendants' attempt to construe the conclusion of the State Court Matter as satisfying the Determination On The Merits Requirement for res judicata is based on Defendants' improper use as precedent of a Fifth Circuit unpublished opinion, PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 6 glaw2019.09.22 8 which according the Fifth Circuit's own Rules, was not to be cited or otherwise used as precedent for anything. 18. In Defendants' MTD, Defendants boldly assert that as set forth by the Fifth Circuit, under Texas law, a grant of a plea to the jurisdiction is a dismissal on the merits for purposes of res judicata. However, the singular citation for such proposition is the unpublished Fifth Circuit decision in Klein v. Walker, 708 Fed. Appx. 158, 159 (5th Cir. 2017). 19. However, Defendants' reliance on Klein is misplaced and disingenuous, for in accordance with 5th CIR. R. 47.5, the Klein decision was not published and is not to be used as precedent except under the limited circumstances set for in 5 th CIR R. 47.5.4, which relates only to use of the unpublished decision for limited circumstances between the parties of the decision, not other parties. As a result, Defendants' use of, and reliance upon, Klein is of no meaning to this Court. 20. During the Klein discussion, Defendants make reference to the Texas Supreme Court's decision in Lehman v. Har-con Corp., 39 S.W.3d 191, 195 (Tex. 2001) in an effort to bolster Defendants' view that Klein was applying Texas law. However, Lehman was actually a review of summary judgments, remanded the decision back to state district court to consider the merits of the claims, and PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 7 glaw2019.09.22 8 specifically notes that its ruling as to the finality of a judgment "only for purposes of appeal and not for other purposes such as issue and claim preclusion." Id. at 192. 21. Thusly, neither of the two cases at the center of Defendants res judicata argument offer any precedent, guidance, or standards related to res judicata. 22. Finally, even if this Court were to view the State Court Matter as a determination on the merits of the relief requested by Plaintiff Mary in the State Court Matter, such preclusion would reach only claims arising prior to April 4, 2019, being the date of the dismissal of Plaintiff's State Court Matter. 23. However, Plaintiff Mary's Claims against Defendants in this action, as filed on April 30, 2019, include factual assertions that Defendant UTHSCSA continued to fail to take any action to stop the ongoing and continuing improper and illegal sexual harassment and retaliation by Defendant Noujeim. With such actions being ongoing and continuing after April 4, 2019, Plaintiff Mary's Claims are in no manner impacted by the dismissal of Plaintiff's State Court Matter. B. Plaintiff Mary has stated a valid Title IX claim against Defendant UTHSCSA. 24. Defendants' next argues that Plaintiff Mary has failed to assert a Valid Title IX claim against Defendant UTHSCSA because (a) Mary allegedly failed to assert that Defendant UTHSCSA had actual knowledge of the actions of Defendant PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 8 glaw2019.09.22 8 Noujeim, and, (b) Mary allegedly has not set forth facts establishing deliberate indifference, being actions that are "clearly unreasonable in light of the known circumstances." Such argument has no merit whatsoever. 25. Plaintiff Mary's Complaint states that (a) the "Upper Echelon" at Defendant UTHSCSA was made aware of the sexual harassment and retaliation of Defendant Noujeim, and (b) Mary filed grievances and complaints with Defendant UTHSCSA as to the sexual harassment and retaliation of Defendants UTHSCSA and Noujeim. 26. Defendants attempt to trivialize such notice because Plaintiff Mary has not yet identified the specific persons within Defendant UTHSCSA with knowledge and others within Defendant UTHSCSA handling Plaintiff's investigations and complaints. Defendants never actually argue that Defendant UTHSCSA did not have actual knowledge of the sexual harassment and retaliation of Defendant Noujeim. 27. However, the indisputable proof that Defendant UTHSCSA had actual knowledge of the sexual harassment of Defendant Noujeim is established by the supporting documents in the Appendix hereto, which by no means in a marshalling of all the notices provided to Defendant UTHSCSA but does include: PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 9 glaw2019.09.22 8 a. the existence of the State Court Matter which was defended by Defendant UTHSCSA with the same legal counsel filing Defendants' MTD (Appendix 001 through 015); b. a September 11, 2018 fax from counsel for Plaintiff Mary to Jack C. Park, JD, Assistant Vice-President and Chief Legal Officer for Defendant UTHSCSA, providing Defendant UTHSCSA with a copy of the filed State Court Matter. (Appendix 016 through 031); c. various complaints, grievances, and concerns raised by Plaintiff Mary, with certain members of the Upper Echelon of Defendant UTHSCSA now identified in the Appendix (Appendix 032 through 047);and d. the filing of a separate Texas district court lawsuit against Defendant UTHSCSA by another victim of Defendant Noujeim's sexual harassment found at Cause No. 2018- CI-20749, JANE UTHSCSA-AS DOE v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, in the 225th Judicial District Court of Bexar County, Texas, originally filed in Travis County, Texas prior to agreed transfer to Bexar County, Texas. (Appendix 048 through 059) 28. As to the assertion that Plaintiff Mary has not made a showing of deliberate indifference, Plaintiff Mary has plead a prima facie case of deliberate indifference because the actions taken by Defendant UTHSCSA were unreasonable in light of the circumstances known. (Appendix 032 through 047). PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 10 glaw2019.09.22 8 29. As Plaintiff Mary has alleged, Defendant UTHSCSA did nothing to remove Plaintiff Mary from the academic influence of Defendant Noujeim, but actually retaliated against Plaintiff Mary for having made the allegations and complaints against Defendant Noujeim. (Id.) Nor did Defendant UTHSCSA take any actions to prevent Plaintiff Mary from being harmed by the ongoing and continual efforts by Defendant Noujeim to harm Plaintiff Jane, just as Noujeim had threatened. (Id.) 30. Considering the actual knowledge that Defendant UTHSCSA had as to the improper sexual harassment being committed by Defendant Noujeim, the minimum reasonable steps Defendant UTHSCSA should have taken would have included a complete academic separation of Plaintiff Mary from Defendant Noujeim and efforts to ensure that the academic, professional, and personal harm being inflicted upon Plaintiff Mary by Defendants would not only stop, but that Plaintiff Mary's academic and professional status within Defendant UTHSCSA would be cleansed of the taint purposefully created by Defendant UTHSCSA and Defendant Noujeim. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 11 glaw2019.09.22 8 C. Plaintiff Mary has stated a valid Title IX claim against Defendant Noujeim. 31. Defendants' MTD next asserts that Plaintiff Mary cannot assert a Title IX claim against Defendant Noujeim, relying on the wording of Title IX with regards to entities receiving federal funds. However, in the case before this Court, the actions of Defendant Noujeim are not a student-to-student injury but are solely based on Noujeim's position as a university professor and supervisor over a student. 32. Such an imbalance of power and the actions of the individual defendant must have a place within the Title IX goal of preventing sexual harassment within a federally supported educational environment. To ignore the actions of the individual defendant with regards to Title IX and allowing the sexual harasser to be personally immune from any liability creates a safe haven for sexual predators within the educational community that is simply untenable, particularly in a professor-to- student situation such as Plaintiff Mary's Claims. 33. Rather than a proverbial "get out of jail card" the individual defendant in a Title IX sexual harassment situation, professor-to-student, should, at a minimum, be subject to at least a qualified immunity review as exists for other federally created remedial statutes and jurisprudence. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 12 glaw2019.09.22 8 34. Applying such a review in Plaintiff Mary's case would strip Defendant Noujeim of any protection, for Noujeim's actions are of a nature that would otherwise create liability for his wrongful actions as violating Texas jurisprudence with regards to the torts of intentional infliction of emotional distress and tortious interference of a business relationship. 35. In addition to Defendant Noujeim being an academic professor and supervisor of Plaintiff Mary, Noujeim also had oversight over Plaintiff Mary as to Mary's workplace within the dental clinic run by Defendant UTHSCSA, and, continues to hold various professional positions within the broader professional circles in which Plaintiff Mary must exist within to exercise Mary's profession. 36. An examination of whether Defendant Noujeim in entitled to qualified immunity is one not suited for a motion to dismiss, but requires a factual investigation that can take place only through discovery among the parties. Cole v. Carso, 953 F.3d. 444 (5th Cir. 2019). D. Plaintiff Mary has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim. 37. Plaintiff Mary acknowledges that the Eleventh Amendment bars an individual from suing a state for damages under Section 1983, as recited by Defendants' MTD. Warnock v. Pecos County, Tex. 88 F.3d 341, 342 (5th Cir. 1996). PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 13 glaw2019.09.22 8 However, certain equitable relief is allowed, as will be replead by Plaintiff Mary if leave to amend is granted. Id. at 343. 38. Plaintiff Mary's claim for damages under Section 1983 against Defendant UTHSCSA is hereby abandoned. E. Plaintiff Mary has stated a valid Section 1983 claim against Defendant Noujeim. 39. As to Plaintiff Mary's Section 1983 Claims against Defendant Noujeim, Plaintiff has stated a valid Section 1983 claim for damages because (as will be further articulated by Plaintiff Mary if leave to amend is granted), Plaintiff Mary's Claims against Defendant Noujeim are against Noujeim in his official and individual capacities. 40. As previously set forth herein, Defendant Noujeim is not entitled to qualified immunity, and Defendant Noujeim's actions in his individual capacity, which is continuing, offers Noujeim no shielding. F. Plaintiff Mary has asserted a valid claim under Section 504. 41. Defendants' argument that Plaintiff Mary has not asserted a valid claim under Section 504 rests on (a) the limited description of Plaintiff Mary's disabilities and lack of accommodations granted (but see Appendix 037), which will be fleshed out if Plaintiff Mary's leave to amend her Complaint is granted, and (b) an argument PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 14 glaw2019.09.22 8 that Plaintiff Mary cannot assert a claim for discrimination under Section 504 if Mary is also the victim of other forms of discrimination. In support of the later, Defendants rely upon Bennett–Nelson v. Louisiana. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005. However, the decision in Bennett-Nelson actually reversed and remanded the district's court decision that the Eleventh Amendment shielding states from Section 504. G. Plaintiff Mary has asserted a valid claim under the ADA. 42. In attempting to avoid Plaintiff Jane's ADA claim, Defendants rely on the decision in United States v. Georgia, 546 U.S. 151 (2006) and a three part test Defendants' refer to as the Georgia test. However, the decision in Georgia related solely to under what conditions a prisoner might sue a state for ADA violations. In deciding that the plaintiff in Georgia did have the right to sue a state for ADA violations and remanded the case back for trial. While the several pages devoted to this topic in Defendants' MTD are esoterically interesting, as expected when one relies on a decision penned by Justice Scalia, the actual application of the decision in Georgia supports Plaintiff Jane's right to sue Defendant UTHSCSA for money damages under the ADA. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 15 glaw2019.09.22 8 H. Plaintiff Mary no longer is pursuing her request for relief under the Texas Constitution. 43. Plaintiff Mary acknowledges that the Eleventh Amendment bars an individual from suing for violations of the Texas Constitution, and Plaintiff Mary's Claims related to the Texas Constitution are hereby abandoned and will be so reflected if Plaintiff Mary is granted leave to amend her Complaint. I. Plaintiff Mary is no longer pursuing her claims related to the Educational Contract. 44. Plaintiff Mary acknowledges that the Eleventh Amendment bars an individual from suing for violations based on the Educational Contract (defined in Plaintiff's Complaint). Plaintiff Mary's Claims related to the Educational Contract are hereby abandoned and will be so reflected if Plaintiff Mary is granted leave to amend her Complaint. IV. CONCLUSION WHEREFORE, for the reasons set forth, Defendants' MTD should be denied as to all of Plaintiff Mary's Claims, not otherwise abandoned herein. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 16 glaw2019.09.22 8 Respectfully submitted, Gorman Law Firm, pllc By: Terry P Gorman, Esq. Texas Bar No. 08218200 tgorman@school-law.co 901 Mopac Expressway South, Suite 300 Austin, Texas 78746 Telephone: (512) 980-4556 (direct) Telecopier: (512) 597-1455 ATTORNEYS FOR PLAINTIFF MARY UTHSCSA-PM DOE PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 17 glaw2019.09.22 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the preceding document was served via the Court's CM/ECF system on September 22, 2019 on: Texas Attorney General GLORIENI M. AZEREDO Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-1969 | FAX: (512) 320-0667 Glorieni.Azeredo@oag.texas.gov ATTORNEYS FOR DEFENDANTS Terry P. Gorman PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 18 glaw2019.09.22