United States District Court, W.D. Texas, Austin Division
DR. ANNIE LIU, Plaintiff
TEXAS STATE UNIVERSITY, DR. RAYMOND FISK, VICKI L. WEST, DR. VISHAG BADRINARAYANAN, and DR. DENISE T. SMART, Defendants
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are: Defendants' Motion to Dismiss for
Plaintiff's Original Complaint filed on January 10, 2019
(Dkt. No. 6); Plaintiff's Response to Motion to Dismiss
filed on March 1, 2019 (Dkt. No. 11); and Defendants'
Reply filed on March 8, 2019 (Dkt. No. 12). On July 18, 2019,
the District Court referred the above motion to the
undersigned Magistrate Judge for Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of
Civil Procedure 72 and Rule 1(d) of Appendix C of the Local
Rules of the United States District Court for the Western
District of Texas (“Local Rules”).
Annie Liu, Ph.D. (“Plaintiff”), who is 58 years
old and of Asian descent, was an associate professor in the
McCoy School of Business at Texas State University
(“TSU”) from 2014 to 2018. Plaintiff received her
Ph.D. in Marketing from Georgia State University in 1998 and
subsequently worked as an associate professor at several
different universities before joining the faculty at TSU.
Plaintiff alleges that in early 2014, while she was working
as a tenured associate professor at Victoria University of
Wellington in Wellington, New Zealand, Dr. Raymond Fisk,
Ph.D. (“Defendant Fisk”), the Chair of the
Department of Marketing (“DOM”) at TSU, recruited
her to join the faculty at TSU. Plaintiff alleges that
Defendant Fisk “promised Plaintiff tenure within a year
or two of joining the faculty and that she would be the
Research Director of the Sales Center if she would resign her
tenured position to join Texas State University.” Dkt.
No. 1 at ¶ 23. In June 2014, Plaintiff left Victoria
University and began working as an associate professor in the
DOM at TSU.
November 2015, Vicki West (“Defendant West”),
Director of the Sales Center, and two other faculty members
interviewed Plaintiff for the position of Research Director
of the Sales Center. Plaintiff contends that despite
excelling in her faculty and research position, she did not
receive the promotion. Plaintiff alleges that in August 2016,
she told Defendant Fisk to stop berating Dr. Ruth Taylor, an
elderly faculty member, at a DOM meeting. Plaintiff alleges
that after she confronted Defendant Fisk at the meeting,
“Defendant Fisk treated Plaintiff very differently and
began to retaliate against Plaintiff after she stood up for
Dr. Taylor.” Id. at ¶ 50.
further avers that during the fall of 2016, the DOM was
seeking re-accreditation with the University Sales Center
Alliance (“USCA”) for its Sales Center and
re-accreditation was partially based on classroom size
requirements. Plaintiff alleges that after a faculty meeting
on August 25, 2016, Defendant West told Plaintiff that she
had “to support what West was telling the USCA about
these requirements; including West's representations that
McCoy College of Business administration was meeting the
class size requirements.” Id. at ¶ 53.
Plaintiff informed Defendant West and Dr. Vishag
Badrinarayanan (“Defendant Badrinarayanan”) that
she “would not lie to anyone from USCA.”
Id. at ¶ 54.
claims that after she told Defendants that she would not lie
to the USCA, Defendants “began a pattern of
retaliation” against her. Id. at ¶
Plaintiff alleges that after Defendant Fisk became aware that
she was having marital problems, he asked her whether she
could still perform her job duties because “she was so
sad” and was acting like a “scorned woman.”
Id. at ¶¶ 60-61. Plaintiff further alleges
that Defendant Fisk denied her permission to attend
conferences in South Africa and Peru, although he had
approved similar trips for her in the past and encouraged
male and white female professors to attend such conferences.
also alleges that Defendant Fisk denied her request for a
graduate teaching assistant. Plaintiff avers that male and
white female professors who had requested graduate student
assistants were granted their requests. Although Plaintiff
was initially provided with an undergraduate teaching
assistant, Plaintiff avers that Defendant Fisk eventually
reassigned that assistant to another professor. As a result,
Plaintiff contends that she was not able to teach her classes
in the same way as she had planned. Id. at
November 16, 2016, TSU denied Plaintiff tenure and informed
her that she would be terminated. On December 12, 2016,
Plaintiff alleges that she complained to TSU that she was
being discriminated against because of her race, age and sex.
Dkt. No. 1-A. On October 23, 2017, Plaintiff filed her Charge
of Discrimination with the Texas Workforce Commission
(“TWC”) alleging that she was discriminated
against and denied tenure because of her age, sex and race.
Dkt. No. 1-A. Plaintiff received her right to sue notice from
the TWC on June 30, 2018, and received her right to sue
letter from the Equal Employment Opportunity Commission
(“EEOC”) on August 29, 2018. See Dkt.
Nos. 1-B and 11-1.
November 1, 2018, Plaintiff filed this lawsuit against TSU,
Dr. Risk, Ms. West, Dr. Badrinarayanan, and Dr. Denise Smart,
Dean of the McCoy School of Business at TSU (collectively,
“Defendants”) alleging the following claims: (1)
an equal protection claim under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983, (2) an intentional race
and gender discrimination claim under Title VII of the Civil
Rights Act,  and (3) a Texas state claim of promissory
instant Motion to Dismiss, Defendants argue that
Plaintiff's lawsuit should be dismissed under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) based on
sovereign immunity, qualified immunity, failure to exhaust
administrative remedies, statute of limitations, and failure
to state a claim.
Rule of Civil Procedure 12(b)(1) allows a party to assert
lack of subject matter jurisdiction as a defense to suit.
Federal district courts are courts of limited jurisdiction
and may only exercise such jurisdiction as is expressly
conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). A federal court properly dismisses a case
for lack of subject matter jurisdiction when it lacks the
statutory or constitutional power to adjudicate the case.
Home Builders Assn. of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001).
“Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.”
Id. In ruling on a Rule 12(b)(1) motion, the court
may consider any one of the following: (1) the complaint
alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint, undisputed facts, and the
court's resolution of disputed facts. Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
“When a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits.” Ramming, 281 F.3d at
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim upon which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court
accepts all well-pleaded facts as true, viewing them in the
light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has explained that a complaint must contain sufficient
factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Id. The court's review is
limited to the complaint, any documents attached to the
complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010).
Section 1983 Equal Protection Claim
addition to alleging a discrimination claim under Title VII,
Plaintiff's Complaint also alleges a claim under 42
U.S.C. § 1983 that Defendants deprived her of her right
to equal protection of the laws under the Fourteenth
Amendment by “unlawfully discriminating against her
because of her race and gender.” Dkt. No. 1 at ¶
115-18. Section 1983 provides a private cause of action
against those who, under color of law, deprive a citizen of
the United States of “any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. “Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.”
Albright v. Oliver, 510 U.S. 266, 271 (1994)
(internal quotations omitted). To state a claim under §
1983, a plaintiff “must (1) allege a violation of a
right secured by the Constitution or laws of the United
States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.”
Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874
(5th Cir. 2000). A plaintiff “must identify defendants
who were either personally involved in the constitutional
violation or whose acts are causally connected to the
constitutional violation alleged.” Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir.
1999). Claims under § 1983 may be brought against
persons in their individual or official capacity, or against
a governmental entity. See Bd. of Cty. Comm'rs of
Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). Personal
capacity suits seek to impose liability upon a government
official as an individual while official capacity suits
“generally represent only another way of pleading an
action against an entity of which an officer is an
agent.” Monell v. Dept. of Soc. Servs. of City of
New York, 436 U.S. 658, 690 n.55 (1978).
Eleventh Amendment Immunity
has brought this § 1983 lawsuit against TSU and the
Individual Defendants in their official and individual
capacity and seeks both monetary damages and prospective
injunctive relief. Defendants argue that Plaintiff's
§ 1983 claims against TSU and the Individual Defendants
are barred under the Eleventh Amendment.
Eleventh Amendment provides: “The judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI.
The Eleventh Amendment codified the sovereign immunity of the
states. Idaho v. Coeur d'Alene Tribe of Idaho,
521 U.S. 261, 267 (1997). “Sovereign immunity is the
privilege of the sovereign not to be sued without its
consent.” Va. Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 253 (2011). “A State may
waive its sovereign immunity at its pleasure, and in some
circumstances Congress may abrogate it by appropriate
legislation. But absent waiver or valid abrogation, federal
courts may not entertain a private person's suit against
a State.” Id. at 253-54. “This
jurisdictional bar applies regardless of the nature of the
relief sought.” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984).
well-established that sovereign immunity applies not only to
actions where a state is the named defendant, but also to
actions against state agencies and state instrumentalities.
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
429 (1997). “[A] suit against an arm or instrumentality
of the State is treated as one against the State
itself.” Lewis v. Clarke, 137 S.Ct. 1285, 1293
(2017). “Similarly, lawsuits brought against employees
in their official capacity ‘represent only another way
of pleading an action against an entity of which an officer
is an agent,' and they may also be barred by sovereign
immunity.” Id. (quoting Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985)). The
Eleventh Amendment bars suits against state officials in
their official capacity when “the state is the real,
substantial party in interest.” Pennhurst, 465
U.S. at 101 (internal citations omitted). “The state is
the real party in interest if the decision rendered in a case
would operate against the sovereign, expending itself on the
public treasury, interfering with public administration, or
compelling the state to act or to refrain from acting.”
Id. Thus, the Eleventh Amendment bars lawsuits
brought against state officials in their official capacity
that seek monetary relief. However, under the Supreme
Court's holding in Ex parte Young, 209 U.S. 123,
155-56 (1908), “[t]he Eleventh Amendment does not
protect state officials from claims for prospective relief
when it is alleged that the state officials acted in
violation of federal law.” Warnock v. Pecos
Cty., 88 F.3d 341, 343 (5th Cir. 1996).
Texas Law, state universities such as TSU are considered
agencies of the State of Texas that are entitled to sovereign
immunity. See Tex. Gov't Code Ann. §
572.002(10)(B) (West 2017) (defining “a university
system or an institution of higher education” as a
“state agency”); Tex. Educ. Code Ann. §
96.41 (West 2013) (providing that TSU is part of the Texas
State University System); U.S. ex rel. King v. Univ. of
Texas Health Sci. Ctr.-Houston, 544 Fed.Appx. 490, 495
(5th Cir. 2013) (noting that “Texas statutes consider
‘a [public] university system or an institution of
higher education' to be a ‘state
agency.'”) (quoting Tex. Gov't Code Ann. §
572.002(10)(B) (West 2017)). Accordingly, TSU is
“inarguably a state agency that is entitled to
sovereign immunity.” Sissom v. Univ. of Texas High
Sch., 927 F.3d 343, 348 (5th Cir. 2019) (internal
citations omitted); see also Williams v. Univ. of Houston
Downtown Police Dep't, 2019 WL 2931669, at *2 (S.D.
Tex. June 18, 2019) (“Under Texas Law, state
universities are agencies of the state and enjoy immunity
under the Eleventh Amendment.”), report and
recommendation adopted, 2019 WL 2913765 (S.D. Tex. July
8, 2019). TSU has not consented to suit in this case and
Congress has not expressly waived Eleventh Amendment immunity
for § 1983 suits. Lewis v. Univ. of Texas Med.
Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011).
Accordingly, TSU is entitled to immunity from Plaintiff's
§ 1983 claims “regardless of the relief
sought.” Pennhurst, 465 U.S. at 100.
noted, the Eleventh Amendment also extends “to state
officials who are sued in their official capacity because
such a suit is actually one against the state itself.”
McKinley v. Abbott, 643 F.3d 403, 406 (5th Cir.
2011). Accordingly, Plaintiff's § 1983 claims
seeking monetary damages against the Individual Defendants in
their official capacity are also barred.
claims for prospective injunctive relief against the
Individual Defendants in their official capacity, however,
are not barred. As noted, under the Ex parte Young
exception, the Eleventh Amendment is not a bar to suits for
prospective injunctive relief against a state employee acting
in his official capacity. Aguilar v. Tex. Dep't of
Crim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). To
decide if the Ex parte Young exception applies,
“a court need only conduct a straightforward inquiry
into whether [the] ...