Udeigwe v. Texas Tech University

Brief/Memorandum in Support

N.D. Tex.November 17, 2016

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION THEOPHILUS K. UDEIGWE § Plaintiff § § v. § Civil Action No.: 5:16-CV-232-C § TEXAS TECH UNIVERSITY § Defendant § DEFENDANT TEXAS TECH UNIVERSITY’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Division Chief - Litigation Division MICHAEL R. ABRAMS Texas Bar No. 24087072 Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (Telephone) (512) 320-0667 (Facsimile) Email: Michael.Abrams@oag.texas.gov COUNSEL FOR DEFENDANT Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 1 of 20 PageID 38 ii TABLE OF CONTENTS I. Introduction .........................................................................................................................1 II. Summary of the Argument..................................................................................................2 III. Legal Standards ...................................................................................................................3 IV. Argument ............................................................................................................................4 A. Nearly all of Udeigwe’s claims are barred by sovereign immunity .......................4 i. Section 1981................................................................................................5 ii. Section 1983................................................................................................5 iii. State law claims ..........................................................................................6 B. Udeigwe failed to timely exhaust his Title VII claim .............................................7 i. Non-reappointment to tenure-track position ...............................................8 ii. Failure to reconsider ................................................................................. 11 C. Udeigwe fails to state a plausible hostile work environment claim...................... 12 V. Conclusion ........................................................................................................................ 13 Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 2 of 20 PageID 39 iii TABLE OF AUTHORITIES Cases Armendariz v. Mora, 553 S.W.2d 400 (Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.) ............. 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 3 Bd. of Trs. of the Univ. of Ala. v. Garrett, 351 U.S. 356 (2001) ..................................................... 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................... 3 cf. E.E.O.C. v. Jamal & Kamal, Inc., 2006 WL 285143 (E.D. La. Feb. 7, 2006) ........................ 13 City of Midland v. O’Bryant, 18 S.W.3d 209 (Tex. 2000) ............................................................. 7 City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).................................................................... 5 Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273 (5th Cir. 2002) .................. 4 Curry v. Lou Rippner, Inc., 2015 WL 2169804 (E.D. La. May 8, 2015) ..................................... 13 Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998) ....... 7 Delaware State Coll. v. Ricks, 449 U.S. 250 (1980) ......................................................... 1, 2, 8, 10 Dickerson v. City of Denton, 298 F. Supp. 2d 537 (E.D. Tex. 2004) ............................................. 6 Gaines v. Texas Tech Univ., 965 F. Supp. 886 (N.D. Tex. 1997) .................................................. 5 General Servs. Com’n v. Little–Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) .......................... 6 Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305 (5th Cir. 2002) ...... 3 Hanrahan v. Univ. of Notre Dame, 2012 WL 1066773 (N.D. Ind. Mar. 27, 2012) ..................... 11 Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428 (5th Cir. 2005) .......................................... 3 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir. 1998)...... 3 Huckabay v. Moore, 142 F.3d 23 (5th Cir. 1998) ........................................................................... 8 In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007) ............................................... 3 Jackson v. Tex. S. Univ., 997 F. Supp. 2d 613 (S.D. Tex. 2014) .................................................... 5 Jackson v. Texas Southern University, 997 F. Supp. 2d 613 (S.D. Tex. 2014) .............................. 6 Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 3 of 20 PageID 40 iv Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748 (5th Cir. 1986), aff’d in part, remanded in part, 491 U.S. 701 (1989) ................................................................. 5 Jones v. City of Jackson, 203 F.3d 875 (5th Cir. 2000) .................................................................. 6 Lever v. Northwestern Univ., 979 F.2d 552 (7th Cir. 1992) ......................................................... 11 Lim v. Trustees Of Ind. Univ., 2001 WL 19126345 (S.D. Ind. Dec.4, 2001) ............................... 11 Mack v. John L. Wortham & Son, L.P., 541 F. App’x 348 (5th Cir. 2013) .................................... 8 Mackey v. Astrue, 2011 WL 3703273 (N.D. Tex. Aug. 8, 2011) ................................................... 6 Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959 (5th Cir. 2014) ...................... 4 Moore v. Potter, 716 F. Supp. 2d 524 (S.D. Tex. 2008) ............................................................... 13 Muoneke v. Prairie View A&M Univ., 2016 WL 3017157 (S.D. Tex. May 26, 2016) .................. 4 Niwayama v. Texas Tech Univ., 590 F. App’x 251 (5th Cir. 2014) ..................................... 2, 9, 10 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ............................................................... 3 Ramsey v. Henderson, 286 F.3d 264 (5th Cir. 2002) .................................................................... 12 Saldivar v. Texas Dep’t of Assistive & Rehab. Servs., 2009 WL 3386889 (S.D. Tex. Oct. 13, 2009)............................................................................. 6 Scanlan v. Tex. A & M Univ., 343 F.3d 533 (5th Cir. 2003) .......................................................... 4 Seminole Tribe of Fla. v. Fla., 517 U.S. 44 (1996) ........................................................................ 4 Sessions v. Rusk State Hosp., 648 F.2d 1066 (5th Cir. 1981) ......................................................... 5 Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) ....................................................... 7 Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996) ........................................................... 5 Weller v. Citation Oil & Gas Corp., 84 F.3d 191 (5th Cir. 1999) ................................................ 12 Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) ................................................................. 5 Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 4 of 20 PageID 41 v Statutes TEX. CIV. PRAC. & REM. CODE § 101.057(2) .................................................................................. 7 Constitutional Provisions U.S. CONST. amend. XI ................................................................................................................... 4 Federal Statutes 42 U.S.C. § 1981 ......................................................................................................................... 2, 5 42 U.S.C. § 1983 ..................................................................................................................... 2, 5, 6 Federal Rules Federal Rules of Civil Procedure 12(b)(1).................................................................................. 1, 3 Federal Rules of Civil Procedure 12(b)(6).................................................................................. 1, 3 Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 5 of 20 PageID 42 DEFENDANT TEXAS TECH UNIVERSITY’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT Defendant Texas Tech University respectfully files this Brief in Support of Defendant’s Motion to Dismiss Plaintiff’s Original Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Theophilus Udeigwe’s claims against Texas Tech, his former employer, for race, color and national origin discrimination are either: (a) barred by sovereign immunity; (b) not properly exhausted; or (c) not supported with plausible allegations for relief. For these reasons, this case should be dismissed with prejudice. I. Introduction Plaintiff Theophilus Udeigwe is a former tenure-track professor of Plant and Soil Science at Texas Tech University’s College of Agricultural Sciences and Natural Resources. Complaint ¶ 11. In Fall 2015, Texas Tech evaluated Udeigwe under its third-year review guidelines for tenure- track faculty, and, after issuing him a third-year review report, came to the conclusion that he should not be reappointed to his position. Udeigwe received a letter informing him of this decision on March 18, 2015. Id. ¶ 20; App. 1, Letter from Dean Michael Galyean to Dr. Theo Udeigwe. However, as the Complaint notes (and the letter confirms), the termination did not take effect until May 31, 2016. Id. This is because Texas Tech, like many universities, offers certain faculty a one- year “terminal” appointment after notice of non-reappointment. E.g., Delaware State Coll. v. Ricks, 449 U.S. 250, 252–53 (1980) (“Like many colleges and universities, Delaware State has a policy of not discharging immediately a junior faculty member who does not receive tenure. Rather, such a person is offered a ‘terminal’ contract to teach one additional year.”). Accordingly, at the end of the 2015-2016 academic year—Udeigwe’s terminal year with Texas Tech—his employment ended. Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 6 of 20 PageID 43 2 II. Summary of the Argument In this lawsuit, Udeigwe contends that his non-reappointment was the result of discriminatory animus and retaliation for his engagement in protected activity. Complaint ¶¶ 1, 12. He also asserts that the appeal process through which he challenged the tenure denial was tainted with discrimination. Id. ¶ 13. Finally, he contends that Texas Tech subjected him to a hostile work environment. Id. ¶¶ 25–35. On these allegations, Udeigwe brings claims under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964. Id. ¶¶ 1, 36–38, 42. He also advances state law claims for breach of contract and tortious interference with contractual relationships. Id. ¶¶ 40–41. These claims must be dismissed. The Section 1981, Section 1983, breach of contract, and tortious interference claims are barred by sovereign immunity. The Title VII claim, meanwhile, fails because Udeigwe did not timely exhaust his administrative remedies. Udeigwe was aware of the non-reappointment of his position on March 18, 2015, and that the result of the non- reappointment would be the termination of his employment, effective May 31, 2016. Id. ¶ 20; see App. 1. But he did not file any charges of discrimination with the Equal Employment Opportunity Commission until after May 6, 2016—well over 300 days after he learned of Texas Tech’s decision to non-renew his position. Id. ¶ 16; App. 2 (showing that Udeigwe filed his EEOC charge on June 25, 2016). Supreme Court and Fifth Circuit precedent establishes that plaintiffs must file EEOC charges at the time that the adverse tenure decision is made and communicated—rather than when the decision becomes effective. Ricks, 449 U.S. at 258; Niwayama v. Texas Tech Univ., 590 F. App’x 251, 355 (5th Cir. 2014). To the extent Udeigwe asserts that the appeal process itself was discriminatory, Complaint ¶ 13, the denial of the appeal was not a fresh adverse action that can form the basis of a Title VII Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 7 of 20 PageID 44 3 claim. Finally, Udeigwe appears to assert a hostile work environment claim, id. ¶¶ 25–35, but includes only a few isolated incidents that, even taken as true, cannot as a matter of law satisfy the Fifth Circuit’s requirement that a workplace harassment claim involve “severe or pervasive” misconduct. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005). For all of these reasons, the Court should dismiss each of Udeigwe’s claims. III. Legal Standards Texas Tech brings this motion under Federal Rules of Civil Procedure 12(b)(1), for lack of jurisdiction, and 12(b)(6), for failure to state a claim. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Under Federal Rule of Civil Procedure 12(b)(6), the court must “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002) (internal quotation marks and citation omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and brackets omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court generally “limits itself to the contents of the pleadings,” the Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 8 of 20 PageID 45 4 Fifth Circuit has recognized an exception to this limitation when the defendant attaches documents that were “referred to in the plaintiff's complaint and are central to the plaintiff’s claim.” Muoneke v. Prairie View A&M Univ., 2016 WL 3017157, at *6 n.2 (S.D. Tex. May 26, 2016) (Rosenthal, J.) (quoting Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003)). IV. Argument A. Nearly all of Udeigwe’s claims are barred by sovereign immunity. This Court lacks jurisdiction over all of Plaintiff’s claims—with the exception of his Title VII claims—on the basis of Texas Tech’s sovereign immunity. See Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 280 (5th Cir. 2002) (“Sovereign immunity is jurisdictional.”). The Eleventh Amendment provides that “[t]he 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. Although the terms of the Eleventh Amendment nominally apply only to suits by “Citizens of another State,” Supreme Court decisions have made clear that a state’s immunity encompasses “suits by citizens against their own States.” See Bd. of Trs. of the Univ. of Ala. v. Garrett, 351 U.S. 356, 363 (2001) (citations omitted); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996). That is, the Eleventh Amendment guarantees that “nonconsenting States may not be sued by private individuals in federal court.” Garrett, 351 U.S. at 363. The immunity granted to a state extends also to state agencies and thus cannot be avoided by suing an arm of the state or a state agency. See Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014) (holding that the Eleventh Amendment generally deprives federal courts of “jurisdiction over suits against a state [or] a state agency”). There is no question that “‘Texas Tech University, as a state institution, clearly enjoys Eleventh Amendment Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 9 of 20 PageID 46 5 immunity.’” Gaines v. Texas Tech Univ., 965 F. Supp. 886, 889 (N.D. Tex. 1997) (quoting Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996)). i. Section 1981 The Section 1981 claim is barred because Congress has not abrogated sovereign immunity with respect to Section 1981 claims. Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 762 n. 13 (5th Cir. 1986), aff’d in part, remanded in part, 491 U.S. 701 (1989); Jackson v. Tex. S. Univ., 997 F. Supp. 2d 613, 625 (S.D. Tex. 2014) (“Congress . . . has not abrogated sovereign immunity with respect to claims under § 1981.”); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) (“[42 U.S.C.] § 1981 contains no congressional waiver of the state’s eleventh amendment immunity.”). Furthermore, Texas does not consent to suit in federal court under Section 1981. Jett, 798 F.2d at 762 n.13. Accordingly, the Court lacks jurisdiction over Udeigwe’s Section 1981 claim. ii. Section 1983 Udeigwe’s claims for violations of the Fifth and Fourteenth Amendments, brought under Section 1983, is likewise barred by sovereign immunity.1 Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983 (emphasis added). Yet “a State is not a person within the meaning of § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). Accordingly, “[i]n passing § 1983, Congress did not disturb the 1 Although not specifically stated as such in the Complaint, Udeigwe’s constitutional claims must be brought under Section 1983, which provides the vehicle through which plaintiffs can allege violations of constitutional rights. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (noting that Section 1983 “creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.”). Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 10 of 20 PageID 47 6 Eleventh Amendment immunity of the States.” Mackey v. Astrue, 2011 WL 3703273, at *3 (N.D. Tex. Aug. 8, 2011). Udeigwe’s section 1983 claim against Texas Tech is thus barred and should be dismissed. See Saldivar v. Texas Dep’t of Assistive & Rehab. Servs., 2009 WL 3386889, at *14 (S.D. Tex. Oct. 13, 2009). Moreover, to the extent Udeigwe alleges a Fifth Amendment violation, that claim would fail for the separate reason that the Fifth Amendment “applies only to violations of constitutional rights by the United States or a federal actor.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). There are no allegations in the Complaint that any federal actor had any involvement in this case. The Fifth Amendment claim should also be dismissed on this basis. See also, e.g., Dickerson v. City of Denton, 298 F. Supp. 2d 537, 541 (E.D. Tex. 2004).2 iii. State law claims “When the State enters into a contract, it waives immunity from liability, but it does not waive immunity from suit unless the private citizen obtains legislative consent to sue the State on a breach of contract claim.” Jackson v. Texas Southern University, 997 F. Supp. 2d 613, 637 (S.D. Tex. 2014) (citing four Texas state court cases dismissing breach of contract claims against the State); General Servs. Com’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001) (“[T]here is but one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature.”). Udeigwe does not allege any facts indicating that he has 2 The Complaint briefly mentions that the Texas Constitution entitles government employees to due process of law, Complaint ¶ 42, but includes no reference to the specific state constitutional provision that provides that right. And the Complaint includes no allegations that Texas Tech actually violated the Texas Constitution. See id. (asserting violations of the Fifth and Fourteenth Amendments of the federal Constitution, but neglecting to assert a violation of Texas Constitution). Therefore, even liberally construing the Complaint, Udeigwe has not asserted a violation of the Texas Constitution. Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 11 of 20 PageID 48 7 obtained consent to sue Texas Tech in this Court, meaning his breach of contract claim should be dismissed.3 Finally, this Court lacks jurisdiction over Udeigwe’s state-law claim for tortious interference with a contract. Under Texas law, a governmental unit is immune from tort liability unless the Legislature has waived immunity. See Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that the State’s waiver of sovereign immunity does not extend to intentional torts. See TEX. CIV. PRAC. & REM. CODE § 101.057(2) (“This chapter does not apply to a claim … arising out of assault, battery, false imprisonment, or any other intentional tort . . . .”). As its name implies, tortious interference with a contract is an intentional tort. See Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.) (“Interference with a contract is an intentional tort and it is essential to the establishment of the cause of action that this element of wilful and intentional interference be established.”). Because the State has not waived its sovereign immunity from claims of tortious interference with a contract, these claims must be dismissed. B. Udeigwe failed to timely exhaust his Title VII claim. The foregoing leaves only one issue remaining: whether Udeigwe can survive a motion to dismiss his Title VII claims. Before Udeigwe proceeds to discovery, the Court should determine whether his Title VII claims were timely exhausted through the appropriate administrative channels. Exhaustion under Title VII occurs when an individual files a timely charge of discrimination with the EEOC and the EEOC informs the individual of the right to sue. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). “In a state that, like Texas, provides a 3 Udeigwe also argues, as part of his breach of contract claim, that Texas Tech’s actions violated the “implied duties of good faith and fair dealing with which Texas contract laws require employers to abide.” Complaint ¶ 40. This contention ignores the Texas Supreme Court’s precedent that “there is no duty of good faith and fair dealing in the employment context.” City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex. 2000). Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 12 of 20 PageID 49 8 state or local administrative mechanism to address complaints of employment discrimination, a title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged.” Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). “[A] discrimination claim not brought within 300 days of the alleged discriminatory act is time-barred.” Mack v. John L. Wortham & Son, L.P., 541 F. App’x 348, 355 (5th Cir. 2013). i. Non-reappointment to tenure-track position The key inquiry in this case is what specific conduct forms the basis of Udeigwe’s Title VII claims. The answer, of course, is the non-reappointment of his position and the terminal appointment that directly arose out of that decision. For instance, Udeigwe contends that: his tenure process was “sabotaged” and led to his termination; his “Spring 2016-end termination was an act of retaliation by the Dean” because Udeigwe formally contested his third-year review report; and that the third-year report contained misrepresentations and fabrications. Complaint ¶¶ 11–12, 19. The Complaint is clear that Udeigwe learned of the negative report as early as January 2015, Complaint ¶ 19, and that he learned of his non-reappointment and terminal appointment on March 18, 2015, Complaint ¶ 20; App. 1. Yet he waited until after May 6, 2016—well over 300 days after receiving the March 2015 notification—before filing his EEOC charge of discrimination. Udeigwe could only rescue this termination claim if the date of the adverse employment action was May 31, 2016—the date his employment formally ended—rather than March 18, 2015. The Supreme Court’s decision in Ricks blocks that pathway. Ricks involved remarkably similar facts, in an identical procedural posture. In March 1974, the board of trustees at Delaware State College voted to deny the plaintiff, Columbus Ricks, a tenured position in the college’s education department. 449 U.S. at 252. Ricks appealed the decision to a grievance committee. Id. In the meantime, the college offered Ricks a one-year Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 13 of 20 PageID 50 9 “terminal” contract. Id. In September 1974, the college denied his grievance. Id. at 254. Ricks filed his EEOC Charge of Discrimination contesting the denial of tenure in April 1975, over 300 days after the board notified him of the non-reappointment. Id. The question before the Court was whether his EEOC charge was timely filed. The Court concluded that it was not. The Court noted that the “unlawful employment practice” at issue was the denial of tenure—not actual termination itself, which the Court reasoned was only a “delayed, but inevitable, consequence of the denial of tenure.” Id. at 257–58. To properly advance a discriminatory discharge claim, Ricks would have had to allege that “the manner in which he was discharged differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.” Id. Ricks made no such allegations, and the Court thus concluded that “the only alleged discrimination occurred—and the filing limitations periods therefore commenced—at the time the tenure decision was made and communicated to Ricks.” Id. at 258. The Court reached this holding even while acknowledging that “one of the effects of the denial of tenure—the eventual loss of a teaching position—did not occur until later.” Id. at 258. Because the proper focus was on the timing of the discriminatory acts, it was “simply insufficient . . . to allege that [the] termination gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.” Id. (citation and internal quotation marks omitted). In a similar case brought against Texas Tech (and litigated in this Court), a professor complained that Texas Tech unlawfully denied her tenure. Niwayama, 590 F. App’x at 355. The Fifth Circuit concluded that the professor’s tenure denial claim was properly dismissed as untimely, citing to Ricks and reasoning that “the date on which this limitation period began to run was May 2010, when the Provost informed [the plaintiff] of the decision to deny her application Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 14 of 20 PageID 51 10 for tenure.” The Court noted that “[a]lthough the President of the University did not finally reject [her] appeal and confirm the Provost’s decision until March 2011, the law is clear that the limitation period is not tolled or affected in any way by ‘the pendency of . . . university grievance procedures,’ which a plaintiff voluntarily chose to pursue but legally ‘need not have pursued’ prior to commencing a Title VII lawsuit.” Id. Because the professor did not file her charge within 300 days of receiving the notice of tenure denial, the Fifth Circuit held that her claim was untimely and barred by limitations. Udeigwe’s non-reappointment claim, and the retaliation and termination claims that are inextricably tied to it, are barred under Ricks and Niwayama. Udeigwe knew that he would be non- reappointed in March 2015, but waited until after June 25, 2016—after the internal appeal was denied—before filing his EEOC charge. Complaint ¶ 16; App. 2. As Niwayama explains, the university grievance procedures do not toll the limitations period under Title VII. 590 F. App’x at 355. Moreover, Udeigwe does not allege that the termination itself was a separate decision from the denial of tenure; in fact, he specifically asserts that the allegedly unlawful termination occurred on March 18, 2015, and would take effect on May 31, 2016. Complaint ¶ 20; see App. 1 (informing Udeigwe on March 18, 2015 that he would be granted a terminal appointment for the 2015-2016 academic year, ending on May 31, 2016). Accepting the allegations in the Complaint as true, as the Court must at this stage, in combination with the record evidence confirming the accuracy of those allegations, the termination was a “delayed, but inevitable, consequence” of the non- reappointment. Ricks, 449 U.S. at 257–58. And Udeigwe does not contend that he was terminated in a manner different than other professors who were non-reappointed—the avenue that Ricks suggests can salvage an otherwise barred discrimination claim. Id. at 258. To the contrary, he specifically alleges that Texas Tech treated him differently than other professors being considered Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 15 of 20 PageID 52 11 for tenure. Complaint ¶ 18. There is thus no basis in the Complaint for the Court to separate his non-reappointment from the ultimate termination. For all of these reasons, Udeigwe’s Title VII discrimination and retaliation claims based on the non-reappointment are untimely and should be dismissed. ii. Failure to reconsider Separately, Udeigwe contends that the University Tenure Hearing Panel was “discriminatory in their handling of his appeal” because they presented a prejudiced report, omitted facts and falsified critical timelines, and misrepresented crucial information. Complaint ¶ 13. Essentially, he asserts that the failure to reconsider his non-reappointment is itself a stand-alone discrimination claim. But the decision to deny his reconsideration appeal was a direct extension of the non-reappointment. As the Seventh Circuit has noted in holding that the plaintiff’s Title VII clock started at the time of her non-promotion rather than the appeal of that non-promotion, “[a]n employer’s refusal to undo a discriminatory decision is not a fresh act of discrimination.” Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992). Moreover, a denial of tenure combined with an offer of a terminal-year appointment is a discrete action, and actions which reinforce that action are not themselves new acts of discrimination. See Hanrahan v. Univ. of Notre Dame, 2012 WL 1066773, at *9 (N.D. Ind. Mar. 27, 2012) (holding that a meeting at which the university discussed the plaintiff’s termination with her after the decision had already been made and communicated did not re-start the limitations period).4 The reconsideration decision is thus 4 Texas Tech is aware of non-binding authority in other jurisdictions which concludes that a reconsideration decision could be an adverse employment action if “the relevant decision-makers most likely would have reversed their original decisions, but for the acts during the reconsideration process that were tainted with unlawful motivation.” Lim v. Trustees Of Ind. Univ., 2001 WL 1912634, at *15 (S.D. Ind. Dec.4, 2001). But the Supreme Court in Ricks recognized that the “application of the general principles discussed herein necessarily must be made on a case–by– case basis.” 449 U.S. at 258 n.9. In this case, the Complaint is clear that the non-reappointment, termination, and refusal to reconsider are all part and parcel of the same alleged discriminatory conduct. Thus, the reconsideration should not constitute a new act of discrimination which would allow Udeigwe to circumvent Title VII’s exhaustion Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 16 of 20 PageID 53 12 inseparable from the non-reappointment itself. Udeigwe should not be permitted to proceed with a failure-to-reconsider claim when he is time-barred from challenging the very decision that Texas Tech failed to reconsider. C. Udeigwe fails to state a plausible hostile work environment claim. Finally, to the extent the Complaint includes a hostile work environment claim, Udeigwe has not alleged sufficient facts to establish that (1) he is member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on race, color, or national origin; (4) the harassment affected a term or condition of his employment; and (5) Texas Tech knew or should have known about the harassment and failed to take remedial action. Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1999). “For harassment on the basis of race to affect a term, condition, or privilege of employment, as required to support a hostile work environment claim under Title VII, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations and quotation marks omitted). “In determining whether a workplace constitutes a hostile work environment, courts must consider the following circumstances: ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. (citation omitted). Udeigwe complains that an associate dean observed one of Udeigwe’s classes without prior notice; that the dean “took Plaintiff’s only graduate student”; that the dean “compelled” Udeigwe to run certain analyses; that the dean asked Udeigwe if the dean’s wife, a realtor, could assist in selling Udeigwe’s house; and that the dean asked Udeigwe to sign a grant but did not give him requirements. The denial of reconsideration should instead be considered a reinforcement of a decision that had long ago been made. Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 17 of 20 PageID 54 13 credit for it. Complaint ¶¶ 25–30. These actions, even taken as true, do not rise to the level of severe or pervasive conduct based on Udeigwe’s membership in a protected class. See Moore v. Potter, 716 F. Supp. 2d 524, 536 n.6 (S.D. Tex. 2008) (noting that plaintiff’s allegations that he was “harassed about his disability because he was forced to bring in supporting documentation for a condition that required medication, and he was required to finish another carrier’s work after his own route” would have failed to state a valid harassment claim). Curry v. Lou Rippner, Inc., 2015 WL 2169804, at *5 (E.D. La. May 8, 2015) (“The ‘severe or pervasive’ standard is intended to filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’” (citation omitted)); cf. E.E.O.C. v. Jamal & Kamal, Inc., 2006 WL 285143, at *2–3 (E.D. La. Feb. 7, 2006) (holding that allegations of “unwelcome and offensive sexual overtures, the initiation of graphic, sexually- oriented conversations, and touching and rubbing” stated sexual harassment claim). The hostile work environment claim, like Udeigwe’s other Title VII claims, should therefore be dismissed. V. Conclusion For the reasons discussed above, Defendant Texas Tech University respectfully requests that the Court grant Defendant’s Motion to Dismiss and dismisses Plaintiff Theophilus Udeigwe’s claims with prejudice. Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 18 of 20 PageID 55 14 Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Division Chief - General Litigation s/ Michael R. Abrams MICHAEL R. ABRAMS Texas Bar No. 24087072 Assistant Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Phone: 512-463-2120 Fax: 512-320-0667 Michael.Abrams@texasattorneygeneral.gov Counsel for Defendant Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 19 of 20 PageID 56 15 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served upon Plaintiff through electronic mail and certified mail, return receipt requested, on November 17, 2016, as indicated below: Theophilus K. Udeigwe Via CMRRR # 7015 0640 0006 2443 2143 8901 Avenue T Lubbock, Texas 79423 therealtheo@gmail.com Pro Se Plaintiff /s/ Michael R. Abrams MICHAEL R. ABRAMS Case 5:16-cv-00232-C Document 10 Filed 11/17/16 Page 20 of 20 PageID 57 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION THEOPHILUS K. UDEIGWE § Plaintiff § § v. § Civil Action No.: 5:16-CV-232-C § TEXAS TECH UNIVERSITY § Defendant § DEFENDANT TEXAS TECH UNIVERSITY’S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT APPENDIX KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Division Chief - Litigation Division MICHAEL R. ABRAMS Texas Bar No. 24087072 Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (Telephone) (512) 320-0667 (Facsimile) Email: Michael.Abrams@oag.texas.gov COUNSEL FOR DEFENDANT Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 1 of 6 PageID 58 APPENDIX Tab 1 (Plaintiff’s Notification of Non-Reappointment) ................................................. Appendix 1 Tab 2 (Plaintiff’s EEOC Charge) .................................................................................... Appendix 2 Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 2 of 6 PageID 59 TAB 1 Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 3 of 6 PageID 60 APPENDIX 1 Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 4 of 6 PageID 61 TAB 2 Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 5 of 6 PageID 62 Case 5:16-cv-00232-C Document 10-1 Filed 11/17/16 Page 6 of 6 PageID 63