Liu v. Texas State University

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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”).

         I. BACKGROUND

         Dr. 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^[1] 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.

         In 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.

         Plaintiff 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.

         Plaintiff claims that after she told Defendants that she would not lie to the USCA, Defendants “began a pattern of retaliation” against her. Id. at ¶ 57.^[2] 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.

         Plaintiff 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 ¶¶ 79-87.

         On November 16, 2016, TSU denied Plaintiff tenure and informed her that she would be terminated.^[3] 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.

         On 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, ^[4] and (3) a Texas state claim of promissory estoppel.

         In the 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.

         II. LEGAL STANDARD

         A. Rule 12(b)(1)

         Federal 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 161.

         B. Rule 12(b)(6)

         Federal 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).

         III. ANALYSIS

         A. Section 1983 Equal Protection Claim

         In 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).

         1. Eleventh Amendment Immunity

         Plaintiff 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.^[5]

         The 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).

         It is 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).

         Under 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.

         As 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.

         Plaintiff's 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] ...