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

Western District of Texas, txwd-5:2019-cv-00248

ANSWER to [2] Amended Complaint by MARCEL NOUJEIM, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § CASE NO. 5:19-CV-00248-DAE § THE UNIVERSITY OF TEXAS HEALTH § SCIENCE CENTER AT SAN ANTONIO § and MARCEL NOUJEIM, § § Defendants. § DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT In accordance with Federal Rules of Civil Procedure 8 and 12(a)(4)(A), Defendant University of Texas Health Science Center at San Antonio ("UTHSC") submits the following Answer to Plaintiff's First Amended Complaint. 1 If a statement is not admitted, it is denied. 1. UTHSC admits that Plaintiff "is a female from Iran." UTHSC lacks information sufficient to form as a basis as to whether Plaintiff is "of Persian and Islamic heritage." UTHSC denies all other allegations in paragraph 1. 2. The statements in paragraph 2 are not factual allegations that UTHSC can admit or deny. UTHSC notes that Plaintiff's claim against Dr. Noujeim under Title IX of the Educational Amendments of 1972 ("Title IX") was dismissed with prejudice on November 19, 2019. Doc. 17. Plaintiff's claims against UTHSC and Dr. Noujeim under 42 U.S.C. § 1983 were also dismissed with prejudice. Id. The only live claim is Plaintiff's Title IX claim against UTHSC, which is limited to "conduct occurring prior to April 30, 2018" based on res judicata. Id. at 20. 3. UTHSC lacks information sufficient to form as a basis as to Plaintiff's residence. UTHSC denies all other factual allegations in paragraph 3. 4. Deny. 5. The statements in paragraph 5 are not factual allegations that UTHSC can admit or deny. 1 All claims against the only other defendant, Dr. Noujeim, have been dismissed with prejudice. Doc. 17. 6. UTHSC denies that it is "owned by" the State of Texas. UTHSC admits all other allegations in paragraph 6. 7. Deny. 8. The statements in paragraphs 8 is not a factual allegation that UTHSC can admit or deny. UTHSC does not deny that Title IX involves a federal question, and UTHSC and does not contest venue. 9. Deny. Plaintiff abandoned her state law claims. Doc. 12, Doc. 17 at 3. 10. See paragraphs 8 and 9, above. UTHSC denies that Dr. Noujeim "is employed by Defendant UTHSCSA." 11. See paragraph 1, above. UTHSC admits that Plaintiff "is an Iranian female." UTHSC lacks information sufficient to form as a basis as to whether Plaintiff is "of Persian and Islamic heritage." 12. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 12. 13. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 13. 14. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 14. 15. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 15. 16. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 16. 17. UTHSC admits that Plaintiff "had a 3.78 Grade Point Average" at the end of her first year. 18. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 18. 19. Deny. 20. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 20. 21. Deny. TTUHSC's Answer 2 22. UTHSC admits that Dr. Noujeim is a male from Lebanon. UTHSC lacks information sufficient to form as a basis as to whether Dr. Noujeim is of "Christian heritage." 23. Deny. 24. Deny. 25. Deny. 26. a) Deny. b) Deny. c) Deny. d) Deny. e) Deny. f) Deny. g) Deny. h) Deny. i) Deny. j) Deny. k) UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 26(k). l) Deny. m) Deny. n) Deny. o) Deny. p) Deny. q) Deny. r) Deny. s) Deny. t) Deny. u) Deny. v) Deny. w) Deny. x) Deny. y) Deny. z) Deny. aa) Deny. bb) Deny. cc) UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 26(c)(c). dd) Deny. 27. Deny. TTUHSC's Answer 3 28. Deny. 29. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 29. 30. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 30. 31. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 31. 32. Deny. 33. Deny. 34. UTHSC admits that the American Board of Oral and Maxillofacial Radiology is independent of UTHSC. When Plaintiff applied to sit for Part 1 of the ABOMR exam, the Program Director could not sign the attestation that Plaintiff was a student in good standing because she was in a remediation plan that had not yet been completed. UTHSC denies all other factual allegations contained in paragraph 34. 35. Deny. 36. To the extent that paragraph 36 contains any factual allegations against UTHSC, UTHSC denies such allegations. 37. UTHSC lacks information sufficient to form as a basis as to the factual allegations in paragraph 37. 38. Deny. 39. Deny. 40. Deny. 41. Deny. 42. Deny. 43. UTHSC is unaware of any "administrative remedy preconditions" referred to in paragraph 43. UTHSC denies all other factual allegations contained in paragraph 43. 44. To the extent that paragraph 44 contains any factual allegations against UTHSC, UTHSC denies such allegations 45. UTHSC denies the contents of paragraph 45 to the extent that they set forth a factual TTUHSC's Answer 4 allegation. 46. The statement in paragraph 46 is not a factual allegation that UTHSC can admit or deny. 47. UTHSC denies that it is "owned" by the State of Texas. UTHSC admits that it receives federal grants and funds and is subject to Title IX. 48. Deny. 49. Deny. 50. Deny. 51. Deny. 52. Deny. 53. Deny. 54. Deny. 55. Deny. 56. The statement in paragraph 56 is not a factual allegation that UTHSC can admit or deny. 57. The Court dismissed Plaintiff's claims under 42 U.S.C. § 1983. Doc. 17. UTHSC therefore denies all allegations contained in paragraphs 58 through 66. 58. See above. 59. See above. 60. See above. 61. See above. 62. See above. 63. See above. 64. See above. 65. See above. TTUHSC's Answer 5 66. See above. 67. Plaintiff abandoned her state law claims. Doc. 12, Doc. 17 at 3. UTHSC therefore denies all allegations contained in paragraphs 67 through 75. 68. See above. 69. See above. 70. See above. 71. See above. 72. See above. 73. See above. 74. See above. 75. See above. 76. Deny. 77. Deny. 78. To the extent that paragraph 78 constitutes a factual allegation, UTHSC denies paragraph 78. 79. The statement in paragraph 79 is not a factual allegation that UTHSC can admit or deny. AFFIRMATIVE DEFENSES Defendant UTHSC asserts the following affirmative defenses and reserves the right to timely amend its answer to include such additional defenses throughout the course of this case. 1. Defendant UTHSC asserts sovereign immunity from suit bars any and all of Plaintiff's claims to which that defense may apply. 2. Defendant UTHSC asserts sovereign immunity from liability bars TTUHSC's Answer 6 Plaintiff's recovery to such an extent that it applies. 3. Defendant UTHSC asserts immunity to suit and liability under the Eleventh Amendment, as to any and all claims to which those defenses may apply. 4. Defendant UTHSC asserts the affirmative defense of limitations to the extent that any of Plaintiff's claims are based upon acts or events which occurred outside of the applicable statute of limitations and for Plaintiff's violations of any other timeliness requirements stated under the applicable statutes. 5. Defendant UTHSC asserts the affirmative defense of res judicata based on the previous state litigation which was dismissed with prejudice. 6. Plaintiff's own acts and/or omissions caused or contributed to Plaintiff's injuries, if any. 7. Plaintiff's claims, in whole or in part, are denied because of unclean hands. 8. Plaintiff has failed to mitigate her damages, if any. 9. Plaintiff's damages or losses, if any, are barred in whole or part by the after- acquired evidence doctrine. 10. Defendant UTHSC asserts the right to raise additional affirmative defenses that become apparent throughout the factual development of this case. CONCLUSION Defendant UTHSC requests that Plaintiff take nothing and that Defendant be awarded its costs, and have such other and further relief, general and specific, at law and in equity, to which Defendant may show themselves entitled, including attorneys' fees. TTUHSC's Answer 7 Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief, General Litigation Division /s/ Matthew A. Deal MATTHEW A. DEAL Texas Bar No. 24087397 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 matthew.deal@oag.texas.gov (512) 475-4651 PHONE (512) 320-0667 FAX ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on December 3, 2019, a true and correct copy of the foregoing document was served via the Court's CM/ECF system to all counsel of record: Terry P. Gorman, Esq. tgorman@school-law.co 901 Mopac Expressway South, Suite 300 Austin, TX 78746 Phone: (972) 235-4700 Fax: (512) 597-1455 ATTORNEY FOR PLAINTIFF /s/ Matthew A. Deal MATTHEW A. DEAL Assistant Attorney General TTUHSC's Answer 8