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

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

Response in Opposition to Motion, filed by JANE UTHSCSA-AS DOE, re [8] MOTION to Dismiss filed by Defendant MARCEL NOUJEIM, Defendant UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO

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6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE § Plaintiff § § vs. § § C.A. No. 5:19-cv-00248-DAE THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER § AT SAN ANTONIO and § MARCEL NOUJEIM § Defendants ________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS TO THE HONORABLE SENIOR U.S. DISTRICT JUDGE DAVID A. EZRA COMES NOW, Plaintiff "JANE UTHSCSA-AS DOE" ("Jane") 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 Jane's Claims are not barred by res judicata. B. Plaintiff Jane has stated state a valid Title IX claim against Defendant UTHSCSA. C. Plaintiff Jane has stated state a valid Title IX claim against Defendant Noujeim. D. Plaintiff Jane has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim. 1 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 E. Plaintiff Jane has stated a valid Section 1983 claim against Defendant Noujeim. F. Plaintiff Jane no longer is pursuing her request for relief under the Texas Constitution. G. Plaintiff Jane 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.# 8) (hereafter, "MTD"). 2. Defendants' MTD is directed at Plaintiff's First-Amended Complaint ("Complaint") (Docket #2). 3. Plaintiff Jane 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. 2 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 5. As set forth hereafter in this Response, Plaintiff Jane'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 Jane's Claims are not barred by res judicata; b. Plaintiff Jane has stated a valid Title IX claim against Defendant UTHSCSA; c. Plaintiff Jane has stated a valid Title IX claim against Defendant Noujeim; d. Plaintiff Jane has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim; e. Plaintiff Jane has stated a valid Section 1983 claim against Defendant Noujeim; f. Plaintiff Jane no longer is pursuing her request for relief under the Texas Constitution; and g. Plaintiff Jane is no longer pursuing her claims related to the Educational Contract. 7. In support of this Response, Plaintiff Jane also tenders herewith the Appendix attached hereto and incorporated herein by reference for all purposes which contains supporting documentation redacted to remove Plaintiff Jane's name. 3 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 Further, certain references are made herein to a Motion for Leave which will be filed by Plaintiff Jane to amend her Complaint. A. Plaintiff Jane's Claims are not barred by res judicata. 8. Defendants' initial argument put forth in their MTD is that Plaintiff Jane's claims as set forth in Jane's Complaint (hereafter, "Jane'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-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. ("State Court Matter") (Appendix 001 through 012.) and the subsequent dismissal thereafter after the granting of a Plea to the Jurisdiction ("State PTJ") filed by Defendant UTHSCSA. The State Court Matter was initially brought in Travis County, Texas but transferred by agreement to Bexar County, Texas. 10. The State Court Matter included only Plaintiff Jane and Defendant UTHSCSA. Defendant Noujeim was not a party, and the only causes of action asserted therein by Plaintiff Jane were requests for Declaratory Judgment and Injunctive Relief ("Jane's State Requests"). 4 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 11. The State Court Matter was brought solely for the purpose of informing Defendant UTHSCSA of the improper and illegal sexual harassment actions of "Professor X" with the hope that a dialogue could be initiated between Plaintiff Jane 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 Plaintiff Jane's State Requests, 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 Professor X (who, indeed, is Defendant Noujeim) seriously and put a stop to his complained of improper and illegal sexual harassment. 5 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 Most regretfully, the filing of the State Court Matter actually resulted in Defendant Noujeim increasing his improper and illegal sexual harassment of Plaintiff Jane. 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 Jane'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, 6 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 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). 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 5th 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. 19. Defendants' attempt to give Klein even further authority by inserting a reference to the Texas Supreme Court's decision in Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Texas 1996) in the midst of Defendants' Klein discussion. However, the Amstadt decision was a ruling after a trial on the merits and has nothing to do with the preclusive or res judicata effects of a Texas decision where the trial court 7 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 had no jurisdiction to even hear the case before it, as we have in the State Court Matter. 20. Finally, even if this Court were to view the State Court Matter as a determination on the merits of the relief requested by Plaintiff Jane in the State Court Matter, such preclusion would reach only claims arising prior to December 10, 2018, being the date of the dismissal of Plaintiff's State Court Matter. 21. However, Plaintiff Jane's Claims against Defendants in this action, as filed on March 13, 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 December 10, 2018, Plaintiff Jane's Claims are in no manner impacted by the dismissal of Plaintiff's State Court Matter. B. Plaintiff Jane has stated a valid Title IX claim against Defendant UTHSCSA. 22. Defendants' next argues that Plaintiff Jane has failed to assert a Valid Title IX claim against Defendant UTHSCSA because (a) Jane allegedly failed to assert that Defendant UTHSCSA had actual knowledge of the actions of Defendant Noujeim, and, (b) Jane allegedly has not set forth facts establishing deliberate 8 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 indifference, being actions that are "clearly unreasonable in light of the known circumstances." Such argument has no merit whatsoever. 23. Plaintiff Jane'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) Jane filed grievances and complaints with Defendant UTHSCSA as to the sexual harassment and retaliation of Defendants UTHSCSA and Noujeim. 24. Defendants attempt to trivialize such notice because Plaintiff Jane 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. 25. 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: 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 012); 9 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 b. various complaints, grievances, and concerns raised by Plaintiff Jane, with certain members of the Upper Echelon of Defendant UTHSCSA now identified in the Appendix (Appendix 013 through 035); c. 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-17498, MARY UTHSCSA-MP v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, in the 224th Judicial District Court of Bexar County, Texas (the "Parallel State Court Matter"), (Appendix 036 through 050); and d. a September 11, 2018 fax from counsel for Plaintiff Jane to Jack C. Park, JD, Assistant Vice-President and Chief Legal Officer for Defendant UTHSCSA, providing Defendant UTHSCSA with a copy of the filed Parallel State Court Matter. 26. As to the assertion that Plaintiff Jane has not made a showing of deliberate indifference, Plaintiff Jane 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 013 through 035). 27. As Plaintiff Jane has alleged, Defendant UTHSCSA did nothing to remove Plaintiff Jane from the academic influence of Defendant Noujeim, but actually retaliated against Plaintiff Jane for having made the allegations and 10 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 complaints against Defendant Noujeim. (Id.) Nor did Defendant UTHSCSA take any actions to prevent Plaintiff Jane from being harmed by the ongoing and continual efforts by Defendant Noujeim to "bring Plaintiff Jane down" just as Noujeim had threatened. (Id.) 28. 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 Jane from Defendant Noujeim and efforts to ensure that the academic, professional, and personal harm being inflicted upon Plaintiff Jane by Defendants would not only stop, but that Plaintiff Jane's academic and professional status within Defendant UTHSCSA would be cleansed of the taint purposefully created by Defendant UTHSCSA and Defendant Noujeim. C. Plaintiff Jane has stated a valid Title IX claim against Defendant Noujeim. 29. Defendants' MTD next asserts that Plaintiff Jane 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 11 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 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. 30. 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 Jane's Claims. 31. 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. 32. Applying such a review in Plaintiff Jane'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. 12 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 33. In addition to Defendant Noujeim being an academic professor and supervisor of Plaintiff Jane, Noujeim also had oversight over Plaintiff Jane as to Jane'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 Jane must exist within to exercise Jane's profession. 34. 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 Jane has stated a valid Section 1983 claim for equitable relief as to Defendants UTHSCSA and Noujeim. 35. Plaintiff Jane 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). However, certain equitable relief is allowed, as will be replead by Plaintiff Jane if leave to amend is granted. Id. at 343. 36. Plaintiff Jane's claim for damages under Section 1983 against Defendant UTHSCSA is hereby abandoned. 13 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 E. Plaintiff Jane has stated a valid Section 1983 claim against Defendant Noujeim. 37. As to Plaintiff Jane'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 Jane if leave to amend is granted), Plaintiff Jane's Claims against Defendant Noujeim are against Noujeim in his official and individual capacities. 38. 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 Jane no longer is pursuing her request for relief under the Texas Constitution. 39. Plaintiff Jane acknowledges that the Eleventh Amendment bars an individual from suing for violations of the Texas Constitution, and Plaintiff Jane's Claims related to the Texas Constitution are hereby abandoned and will be so reflected if Plaintiff Jane is granted leave to amend her Complaint. 14 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 G. Plaintiff Jane is no longer pursuing her claims related to the Educational Contract. 40. Plaintiff Jane acknowledges that the Eleventh Amendment bars an individual from suing for violations based on the Educational Contract (defined in Plaintiff's Complaint). Plaintiff Jane's Claims related to the Educational Contract are hereby abandoned and will be so reflected if Plaintiff Jane 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 Jane's Claims, not otherwise abandoned herein. 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 JANE UTHSCSA-AS DOE 15 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22 6 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 MATTHEW A. DEAL Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-1969 | FAX: (512) 320-0667 matthew.deal@oag.texas.gov ATTORNEYS FOR DEFENDANTS Terry P. Gorman 16 PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS Glaw 2019.09.22