Stollings v. Texas Tech University

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

MARLENE STOLLINGS,

Plaintiff,

v. No. 5:20-CV-250-H

TEXAS TECH UNIVERSITY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS IN PART

This case followed Texas Tech’s termination of its head women’s basketball coach,

Marlene Stollings. Stollings sued Texas Tech and its Athletic Director, Kirby Hocutt,

alleging breach of contract, fraud, fraudulent inducement, specific performance, violation of

constitutional rights under 42 U.S.C. § 1983, and sex discrimination and retaliation under

both Title VII and Title IX. Stollings also sued Hocutt in his individual capacity for

defamation, defamation per se, and tortious interference with a contract. Defendants filed a

motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).1

Defendants argue that these claims should be dismissed because Stollings either fails to

adequately plead them or the claims are barred by sovereign or qualified immunity.

The Court grants the motion to dismiss in part and denies it in part. Through the

deferential lens applicable to motions to dismiss, the Court finds that Stollings has stated a

claim against Texas Tech under Title VII for discrimination and Title IX for retaliation and

that these claims are not barred. But the Court finds that the state-law claims are barred by

1 Defendants’ motion is titled as a partial motion to dismiss, however they move to dismiss all

claims.

sovereign immunity and that the defendants are not the proper parties to a Section 1983

claim. The Court also dismisses the tort claims against Hocutt because the Texas Tort

Claims Act precludes them. Accordingly, the Court dismisses these claims.

1. Factual Background2

A. Stollings’s Employment Contract

Texas Tech University is a public higher-education institution located in Lubbock,

Texas and within the Texas Tech University System. Plaintiff Marlene Stollings was the

head coach of Texas Tech’s women’s basketball team from April 2018 until her termination

in August 2020. Dkt. No. 15 ¶¶ 2, 31. Defendant Kirby Hocutt is the Athletic Director for

Texas Tech and responsible for supervising all collegiate sports at the university. Id. ¶¶ 12,

58. In this role, Hocutt is also responsible for recruiting, vetting, and hiring head coaches

and staff for Texas Tech’s athletic program. Id. ¶ 59.

In early 2018, Texas Tech approached Stollings about taking over its women’s

basketball program. Id. ¶ 75. In April 2018, Stollings entered into an employment

agreement with Texas Tech that established her as the head coach of the women’s

basketball team until March 31, 2024. Id. ¶¶ 3, 77. The agreement guaranteed Stollings an

annual salary of $300,000 and set out various bonuses for specified events—such as winning

a national-championship game. Id. ¶¶ 83–84.

The employment agreement permitted Texas Tech to terminate Stollings “for cause

only if, ‘based on substantial evidence,’ Coach Stollings failed to perform her duties or acted

in harmful or inappropriate ways, such as a ‘failure or refusal to perform assigned duties’ or

2 These allegations are taken from Stollings’s complaint, which the Court must accept as true when

resolving a motion to dismiss. Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016).

‘serious violation of local, state, or federal laws.’” Id. ¶ 85 (quoting Dkt. No. 19 at 10–11).

Stollings could also be terminated for cause if she engaged in “objectionable behavior.” Id.

¶ 86. The agreement defined objectionable behavior as:

behavior, actions or activities that (i) subject either Coach or University to

substantial ridicule or embarrassment; (ii) substantially adversely affects

Coach’s or University’s reputation; (iii) substantially interferes with or

substantially diminishes Coach’s standing as a University ambassador and

representative; or (iv) are substantially contrary to the best interests of the

University, its students, or its athletic program.

Id. (quoting Dkt. No. 19 at 9).

Under the agreement, the determination of whether Stollings engaged in

objectionable behavior was in the sole discretion of Texas Tech’s president. Dkt. No. 19 at

10. If terminated for cause, Texas Tech would be required to pay Stollings her salary until

her date of termination. Dkt. No. 15 ¶ 88. If wrongfully terminated, Texas Tech would be

required to pay Stollings under the liquidated-damages clause in the amount of 75% of her

base salary. Id. ¶ 89.

B. Reports About Stollings’s Program

Stollings represents that under her guidance, the women’s basketball team began to

perform better not only in the sport, but also in the classroom. Id. ¶ 18. Despite this

success, she alleges that some members of the team “did not want to provide the energy and

resources needed to achieve success” and decided to transfer to other programs. Id. ¶¶ 19–

20. Stollings alleges that in order for the players to have a smooth transition to another

program, “NCAA rules require that student-athletes must claim that the transfer is based on

a desire to avoid a negative atmosphere or for physical and mental health reasons.” Id. ¶ 21.

Consequently, in late summer 2019, these departing students gave negative feedback about

Stollings’s program. Id. ¶ 129.

Following the negative feedback from the departing students, Texas Tech conducted

two internal reviews of the women’s basketball program. Id. ¶¶ 139, 170. Stollings

represents that these reviews ultimately concluded that she had not acted inappropriately.

Id. ¶ 24. Despite this conclusion, in August 2020, USA Today published an article that

included interviews from the departing students about their experiences in Stollings’s

program. Id. ¶ 26. Stollings alleges that the contents of the article were false and

unsubstantiated and that Hocutt assured her that she had Texas Tech’s support. Id. ¶ 27.

C. Title IX Investigation

In March 2020, Stollings was informed of sexual-harassment allegations involving a

member of her coaching staff and a student-athlete. Id. ¶ 162. Stollings reported these

allegations to the Texas Tech Athletic Department, which then initiated a Title IX

investigation. Id. ¶¶ 9–10. Stollings claims that Hocutt and the department were previously

aware of these violations but intentionally ignored them. Id. ¶ 165–66. Consequently,

Stollings alleges that this reporting and her participation in the Title IX investigation

threatened to embarrass the athletic department and Hocutt. Id. ¶ 12. Texas Tech filed a

Title IX complaint against the member of the coaching staff, who subsequently resigned

before the investigation was completed. Id. ¶ 169.

As a result of these events, Texas Tech conducted its second internal review of

Stollings’s program. Id. ¶ 170. This investigation touched on both the alleged Title IX

violation and the topics of the first internal review regarding the program’s environment. Id.

¶ 173. Stollings alleges that like the first review, the results of the second investigation were

positive with no adverse findings with respect to Stollings. Id. ¶¶ 176–77. However,

following this review, Hocutt requested Stollings “to agree to three action items in order to

alleviate any public scrutiny of the program.” Id. ¶ 179. These were that Stollings (1) take a

one-year moratorium from using the heart-rate monitoring system; (2) keep watch on a

particular coaching staff member’s communication with student-athletes; and (3) make a

special effort to be more available to the student-athletes. Id. She agreed to do so. Id.

D. Alleged Discriminatory Conduct and Stollings’s Termination

Despite his support, Stollings alleges that Hocutt devised a scheme to salvage his

own job by terminating hers to strategically draw blame away from himself. Id. ¶¶ 28–30.

Stollings asserts that Texas Tech proceeded to terminate her at Hocutt’s insistence in August

2020. Id. ¶ 31. Stollings alleges that her termination was a direct result of her actions in

raising sexual-harassment concerns and participating in the Title IX investigation that

brought negative publicity to Hocutt and the university. Id. ¶ 198.

Stollings maintains that her termination was also based on Texas Tech’s

“discriminatory biases against female and gay and lesbian coaches.” Id. ¶ 34. Stollings

alleges that she and other female and gay and lesbian coaches were penalized for the same

conduct of which male and heterosexual coaches were praised. See id. ¶ 35. Stollings also

claims that her efforts to obtain additional support and resources for women’s sports were

met with resistance and eventual retaliation in the form of her termination. Id. ¶ 15.

Stollings alleges that the defendants propagated an unwritten rule that female and gay and

lesbian coaches were required to accept lesser treatment than male heterosexual coaches.

Id. Specifically, she alleges that Texas Tech administrators, including Hocutt, regularly

made derogatory remarks about women to her or around her and made statements

characterizing women as untrustworthy and overly emotional. Id. ¶¶ 93–98. Moreover, she

alleges that she was reprimanded for instituting the same training procedures as had been

praised by male coaches—namely the heartrate monitoring system that she was instructed

to cease using. See id. ¶ 179.

After her termination, Stollings alleges that Hocutt “made knowingly false and

malicious defamatory public statements” about her at a press conference. Id. ¶¶ 206–07.

Specifically, his statements addressed her in both her personal and professional capacity

with respect to her role as the women’s basketball head coach and her relationship with the

team. Id.

2. Procedural History

Stollings filed her Original Complaint in October 2020. Dkt. No. 1. Defendants

filed a motion to dismiss. Dkt. No. 12. Prior to responding to the motion, Stollings filed

her First Amended Complaint (Dkt. No. 15), which is the current operative pleading at this

stage. Stollings brings claims against Texas Tech and Hocutt in his official capacity for

breach of contract, fraud, fraudulent inducement, sex discrimination under both the Equal

Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of

1964, Title IX of the Education Amendments, and specific performance. Id. ¶ 1. She also

brings claims against Hocutt in his individual capacity for defamation and intentional

interference with a contract. 3 Id.

3 Stollings has sued Hocutt on various claims both in his official and individual capacity. See Dkt.

No. 15 at 33–47. Stollings specifies that certain claims, such as defamation and tortious interference,

are brought against Hocutt only in his individual capacity. See id. at 37–39. It is unclear from the

pleadings which capacity she brings the remaining claims that are alleged against both Hocutt and

Texas Tech because she does not specifically allege those claims against Hocutt in his individual or

official capacity. See id. at 33–47. Based on the nature of the claims and their relationship to

Hocutt’s role as Texas Tech’s athletics director, it appears that where it is unspecified, she intended

to sue Hocutt in his official capacity. Specifically, she raises claims against Hocutt based on a

contract with Texas Tech and fraud related to contract negotiations. Id. at 33–37. Nothing she

addresses in these claims reach Hocutt’s individual actions as the individual claims do.

Additionally, in the parties’ Joint Report Regarding Contents of Scheduling Order, Stollings

distinguishes the official-capacity claims that are coupled with Texas Tech from the individual-

capacity claims that are only mounted against Hocutt. See generally Dkt. No. 27.

This conclusion is also consistent with most circuits’ pleading requirements that presume a

suit against a public official is only in their official capacity unless expressly stated otherwise. See

Defendants filed a motion to dismiss Stollings’s Amended Complaint based on both

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 17. Defendants primarily

argue that Stollings’s claims are not adequately pled or are precluded by sovereign, absolute,

or qualified immunity. The Court ordered Stollings to file a Rule 7(a) reply regarding

Hocutt’s qualified-immunity defense (Dkt. No. 21), which she did (Dkt. No. 26). The

defendants filed a response (Dkt. No. 31), and Stollings then filed an additional reply

without leave to do so (Dkt. No. 33). The motion to dismiss and Hocutt’s qualified-

immunity defense have been fully briefed and are ripe for review.

3. Standards of Review

A. Federal Rule of Civil Procedure 12(b)(1) Standard

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge the subject-

matter jurisdiction of the district court to hear a case. “A case is properly dismissed for lack

of subject matter jurisdiction when the Court lacks the statutory or constitutional power to

adjudicate the case.” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citation

omitted). “[P]laintiff bears the burden of proof that jurisdiction does in fact exist.”

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

Lack of subject-matter jurisdiction may only be found by considering: “(1) the

complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the

record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of

requirements in a Section 1983 claim that require plaintiffs to specifically plead that a suit for

damages is brought against the state official in their individual capacity); Wells v. Brown, 891 F.2d

591, 593 (6th Cir. 1989) (citing Brandon v. Holt, 468 U.S. 464, 474 (1985) (“It is not too much to ask

that if a person . . . is to be subject to suit, the person or entity should be properly named and clearly

notified of the potential for payment of damages individually.”) (Burger, C.J., concurring).

Therefore, the Court views Stollings’s claims for defamation and tortious interference as the only

claims against Hocutt in his individual capacity because she does not properly name or clearly notify

disputed facts.” King v. U.S. Dep’t of Veteran Affairs, 728 F.3d 410, 413 (5th Cir. 2013).

Therefore, “[i]n considering a challenge to subject matter jurisdiction, the district court is

free to weigh the evidence and resolve factual disputes in order to satisfy that it has the

power to hear the case.” Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014)

(internal quotations omitted). Any action barred by the doctrine of sovereign immunity

must be dismissed for lack of subject matter jurisdiction. United States v. Mitchell, 100 S. Ct.

1349, 1351 (1980); United States v. U.S. Fidelity Co., 309 U.S. 506, 512 (1940).

B. Federal Rule of Civil Procedure 12(b)(6) Standard

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Therefore, a complaint must allege

sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

Defendants can challenge the sufficiency of a complaint through a motion to dismiss

under Rule 12(b)(6). In evaluating a 12(b)(6) motion, the court must accept all well-pleaded

facts as true. Id. However, this tenet does not extend to legal conclusions. Id. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” Id. Moreover, a complaint may be dismissed under Rule 12(b)(6) when its

allegations indicate the existence of an affirmative defense that will bar the award of any

remedy. See EPCO Carbon Dioxide Prods. Inc. v. JP Morgan Chase Bank, N.A., 467 F.3d 466,

470 (5th Cir. 2006) (“Although dismissal under rule 12(b)(6) may be appropriate based on a

successful affirmative defense, that defense must appear on the face of the complaint.”); see

also Benjamin Spencer, 5B Federal Practice and Civil Procedure § 1357 (3d ed. 2021). But

motions to dismiss under 12(b)(6) are viewed with disfavor and are rarely granted.

IberiaBank Corp. v. Ill. Union Ins. Co., 953 F.3d 339, 345 (5th Cir. 2020).

Additionally, Federal Rule of Civil Procedure 9(b) requires parties alleging fraud to

“state with particularity the circumstances constituting fraud.” The Fifth Circuit interprets

Rule 9(b) strictly by “requiring a plaintiff pleading fraud to specify the statements contended

to be fraudulent, identify the speaker, state when and where the statements were made, and

explain why the statements were fraudulent.” Hermann Holdings Ltd. v. Lucent Techs. Inc.,

302 F.3d 552, 564–65 (5th Cir. 2002) (internal quotations omitted). Allegations about

conditions of the mind, however, may be pleaded generally. Fed. R. Civ. P. 9(b).

4. Analysis

A. Sovereign Immunity

A Rule 12(b)(1) motion for lack of subject-matter jurisdiction “must be considered by

the district court before other challenges since the court must find jurisdiction before

determining the validity of a claim.” Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172

(5th Cir. 1994) (internal quotations omitted). Because any action barred by the doctrine of

sovereign immunity must be dismissed for lack of subject-matter jurisdiction, the Court

should address sovereign immunity first. See U.S. Fidelity Co., 309 U.S. at 512.

“In our constitutional scheme, a federal court generally may not hear a suit brought

by any person against a nonconsenting State.” Allen v. Cooper, 140 S. Ct. 994, 1000 (2020).

In other words, “[s]overeign immunity is the privilege of the sovereign not to be sued

without its consent.” Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011).

This immunity, however, is not without limits. Id. at 254. A federal court may

“entertain a suit against a nonconsenting State on two conditions.” Allen, 140 S. Ct. at

1000. “First, Congress must have enacted unequivocal statutory language abrogating the

States’ immunity from the suit.” Id. (internal quotations omitted). “And second, some

constitutional provision must allow Congress to have thus encroached on the States’

sovereignty.” Id. at 1001 (citation omitted). Therefore, “absent waiver or valid abrogation,

federal courts may not entertain a private person’s suit against a State.” Stewart, 563 U.S. at

254.

i. Texas Tech is an arm of the state and thus has sovereign immunity.

The Eleventh Amendment’s reference to actions “against one of the United States”

includes “not only actions in which a state is actually named as the defendant, but also

certain actions against state agents and state instrumentalities.” Regents of Univ. of Cal. v.

Doe, 519 U.S. 425, 429 (1997). “[N]ot all units of a state government are immunized from a

federal lawsuit.” Daniel v. Univ. of Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020). To

determine whether a unit qualifies as an arm of the state for the purposes of sovereign

immunity, courts in the Fifth Circuit employ a six-factor test developed in Clark v. Tarrant

County. 798 F.2d 736 (5th Cir. 1986); see Providence Behav. Health v. Grant Rd. Pub. Util. Dist.,

902 F.3d 448, 456 (5th Cir. 2018). The six Clark factors are:

“(1) Whether the state statutes and case law view the agency as an arm of the

state; (2) The source of the entity’s funding; (3) The entity’s degree of local

autonomy; (4) Whether the entity is concerned primarily with local[,] as

opposed to statewide, problems; (5) Whether the entity has the authority to

sue and be sued in its own name; and (6) Whether the entity has the right to

hold and use property.”

See Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999) (citing Clark, 798 F.2d at

744–45).

Here, Stollings does not appear to contest Texas Tech’s arm-of-the-state status, and

the Fifth Circuit has previously held that a state university—more specifically, Texas Tech

University—is an arm of the state and enjoys sovereign immunity. Wallace v. Texas Tech

Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (“Texas Tech, as a state institution, clearly

enjoys Eleventh Amendment immunity.”); United States v. Texas Tech Univ., 171 F.3d 279,

289 n.14 (5th Cir. 1999) (same). Therefore, under Fifth Circuit precedent, the university at

issue here is an arm of the state.

ii. Hocutt also enjoys sovereign immunity in his official capacity.

In order to eliminate confusion regarding personal- and official-capacity suits, the

Supreme Court “emphasized that official-capacity suits generally represent only another

way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo,

502 U.S. 21, 25 (1991) (internal quotations omitted). This is because “a judgment against a

public servant in his official capacity imposes liability on the entity he represents.” Kentucky

v. Graham, 473 U.S. 159, 166 (1985) (internal quotations omitted). “Suits against state

officials in their official capacity therefore should be treated as suits against the State.”

Hafer, 502 U.S. at 25 (quoting Graham, 473 U.S. at 166).4

Here, Stollings asserts various claims against Hocutt separately in his official and

individual capacity. Defendants only argue that Hocutt enjoys sovereign immunity from

4 This general rule is subject to the well-established exception of the Ex parte Young doctrine, which

permits a plaintiff to sue a state official for injunctive relief in order to end a continuing violation.

Under those circumstances, the official is not considered the state for sovereign-immunity purposes.

See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); Virginia Office for Prot. &

Advoc. v. Stewart, 563 U.S. 247, 255 (2011). While defendants spend a significant amount of briefing

arguing that the Ex parte Young exception does not apply, Stollings does not attempt to rebut this

argument. Accordingly, the Court applies the general rule because Stollings has waived any

argument that the Ex parte Young exception applies here to give the Court jurisdiction. See Matter of

Dall. Roadster, Ltd., 846 F.3d 112, 126 (5th Cir. 2017) (concluding the plaintiff abandoned a claim by

not rebutting the defendant’s argument at the motion-to-dismiss stage). Additionally, sovereign

immunity impacts subject-matter jurisdiction, and Stollings has the burden to demonstrate the

Court’s jurisdiction. Ramming, 281 F.3d at 161. The Court also finds that Stollings fails to carry this

burden with respect to defendants’ sovereign-immunity argument because she presents no argument

suit with respect to the claims that Stollings asserts against Texas Tech and Hocutt in his

official capacity. Accordingly, the Court finds that Hocutt enjoys arm-of-the-state status for

claims raised against him in his official capacity.

iii. Texas Tech and Hocutt in his official capacity are immune

from suit with respect to Stollings’s breach of contract, fraud,

and fraudulent inducement claims.

Because Texas Tech and Hocutt in his official capacity enjoy sovereign immunity,

the Court must determine whether this status protects them from suit here. Texas Tech and

Hocutt both argue that sovereign immunity bars Stollings’s contract-related claims (breach

of contract and specific performance), both counts of fraud, and fraudulent inducement. As

addressed below, the Court finds that each of these claims are barred by sovereign immunity

and, thus, are dismissed.

a. Stollings’s contract-related state-law claims are barred by

sovereign immunity.

Stollings brings breach-of-contract and specific-performance claims against Texas

Tech and Hocutt alleging that she was terminated without cause and that the defendants

failed to pay her as required by the employment agreement. Dkt. No. 15 at 33–34, 45.

Stollings also seeks a declaratory judgment that she did not breach her employment contract

and that she was wrongfully terminated. Id. at 47. Texas Tech and Hocutt argue that

sovereign immunity precludes these state-law claims, Dkt. No. 18 at 10, and the Court

agrees because the state has not waived immunity to suit here.

“When the state contracts with a private party, it waives immunity from liability. But

the State does not waive immunity from suit simply by contracting with a private party.”

Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (citation

omitted). “[Moreover] a plaintiff cannot circumvent the doctrine of sovereign immunity by

seeking declaratory relief that essentially resolves a breach of contract issue.” Webb v. City of

Dallas, 314 F.3d 787, 793 n.18 (5th Cir. 2002) (citing IT-Davy, 74 S.W.3d at 861). But this

does not mean that a contracting party with the state cannot seek a remedy or enforce its

contractual rights. IT-Davy, 74 S.W.3d at 854. If a party “feels aggrieved, it can seek

redress by asking the Legislature to waive immunity from suit.” Id. (citing Tex. Civ. Prac.

& Rem. Code §§ 107.001–.005).

Here, Stollings has neither alleged nor argued that the state has waived immunity in

any way. Additionally, there is nothing in the pleadings that suggests Stollings requested a

waiver from the Texas Legislature. Instead, Stollings, relying on nonbinding case law

applying other states’ laws, argues that the enforcement of sovereign immunity in contracts

cases is against public policy. Dkt. No. 25 at 28. But that argument falls short.

First, this argument must fail because it is barred by binding precedent. See Webb,

314 F.3d at 793. In any event, the argument is likewise undermined by Texas law. Texas

has an established procedure to resolve grievances in contract disputes where the state has

not waived sovereign immunity. Civ. Prac. & Rem. §§ 107.001–.005. This procedure

acknowledges that Texas has waived immunity from liability but not immunity from suit

and, thus, cuts against Stollings’s policy argument and supports that this Court is not the

proper place to resolve her dispute. While legislative consent to suit may be seldom

granted, Texas is within its rights to limit such suit. See Webb, 314 F.3d at 793. In light of

this, the Court finds that Stollings fails to carry her burden of demonstrating that the Court

has subject-matter jurisdiction to hear these contract-related claims. Accordingly, the Court

dismisses these claims against defendants for want of jurisdiction and declines to weigh the

adequacy of the pleadings on these issues.

b. Fraud and Fraudulent Inducement

Stollings also brings claims for fraud and fraudulent inducement against Texas Tech

and Hocutt in his official capacity. Dkt. No. 15 at 34–37. Defendants contend that

sovereign immunity bars these state-law tort claims because the state has not waived its

immunity. The Court agrees; thus, they are dismissed for lack of subject-matter jurisdiction.

“Texas, its agencies, and subdivisions generally enjoy sovereign immunity from tort

liability.” Subbiah v. Kiel, 850 F. Supp. 2d 653, 660 (N.D. Tex. 2011) (citing Cnty. of

Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002)). The Texas Tort Claims Act (TTCA)

provides the exclusive and limited means of recovery against the government under Texas

law. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). “Under the

[TTCA], the only tort claims not barred by sovereign immunity are those that involve ‘the

use of publicly owned automobiles, premises defects, and injuries arising out of conditions

or use of property.’” Subbiah, 850 F. Supp. 2d at 660 (citing Civ. Prac. & Rem. Code

§ 101.021). The TTCA explicitly declines to extend this waiver to intentional torts. See 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 . . . .).

Stollings fails to demonstrate waiver of the defendants’ sovereign immunity with

respect to her state-law tort claims. In her response to defendants’ motion to dismiss,

Stollings argues that she has adequately alleged valid claims for fraud and fraudulent

inducement; however, she does not address the defendants’ sovereign-immunity defense at

all. Dkt. No. 25 at 30–31. Stollings has therefore failed to carry her burden to demonstrate

subject-matter jurisdiction with regard to her fraud and fraudulent-inducement claims.

Accordingly, the Court dismisses these fraud-based claims for want of jurisdiction and

declines to determine whether they are adequately pled.

B. 42 U.S.C. § 1983 Claims

Stollings also brings claims against Hocutt in his official capacity5 and Texas Tech

for violations of constitutional and civil rights under 42 U.S.C. § 1983. These claims are

also dismissed because the defendants are not the proper parties given the financial relief

sought by Stollings.

“Section 1983 provides a private right of action for damages to individuals who are

deprived of ‘any rights, privileges, or immunities’ protected by the Constitution or federal

law by any ‘person’ acting under the color of state law.” Stotter v. Univ. of Tex. at San

Antonio, 508 F.3d 812, 821 (5th Cir. 2007). The United States Supreme Court has held that

“neither a state [n]or persons acting in their official capacities are ‘persons’ under § 1983.”

Will v. Michigan State Dep’t of Police, 491 U.S. 58, 71 (1989). However, state officials are

persons when sued in their official capacities for injunctive relief. Id. at 71 n.10.

Here, Stollings only seeks “compensatory damages, general damages, special

damages, nominal damages, statutory damages and punitive damages” for her Section 1983

claim. Dkt. No. 15 at 47. Nowhere in her complaint does she seek injunctive relief. See

generally Dkt. No. 15. Defendants contend that they are not appropriate parties for the

5 While Stollings only explicitly pleads a Section 1983 claim against Hocutt in his official capacity,

and fails to name him in his individual capacity, her Rule 7(a) Reply appears to be premised on an

individual claim. See Dkt. No. 26 at 11. The reply is the first and only document in the record that

suggests Stollings might intend to bring this claim against Hocutt in his individual capacity. The

Court must verify jurisdiction and that the claim satisfies federal pleading requirements before it

addresses a qualified-immunity defense. See Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017).

Stollings’s Section 1983 claim is alleged against “defendants.” While this could include an

individual-capacity claim, Stollings’s use of “defendants” throughout her filings exclusively refers to

Texas Tech and Hocutt in his official capacity. See, e.g., Dkt. No. 25 (discussing defendants’ actions

that could only be on behalf of the university); Dkt. No. 26 at 14 (referencing defendants’ actions

that could only be made by the university); Dkt. No. 27 at 1–3 (detailing claims against “defendants”

that could only rationally be brought against a governmental entity or an officer in their official

capacity). Because Stollings’s First Amended Complaint (Dkt. No. 15) does not allege a claim

against Hocutt in his individual capacity, the Court declines to assume that an individual claim

Section 1983 claim because Stollings only seeks monetary damages, and therefore, neither

Texas Tech nor Hocutt in his official capacity are “persons” for the purposes of the claim.

Dkt. No. 18 at 23. In her response, Stollings’s only argument is that her Section 1983 claim

necessarily survives because she has stated a claim under Title VII. Dkt. No. 25 at 27. But

whether she states a Title VII claim is irrelevant to whether she pleads a proper claim under

Section 1983. Stollings does not address whether the defendants are persons for the

purposes of the claim or whether she seeks injunctive relief to render Hocutt an appropriate

party.

Fifth Circuit case law also supports the defendants’ argument. In Stotter v. University

of Texas at San Antonio, for example, the plaintiff alleged a due-process claim against UTSA

under Section 1983. 508 F.3d at 821. The Fifth Circuit reasoned that because state

universities are not persons under Section 1983, the plaintiff’s claim against UTSA was

invalid. Similarly, in MedRX/Systems, P.L.L.C. v. Texas Department of State Health Services, the

plaintiff sought damages against the Texas Department of State Health Services and its

commissioner in his official capacity under Section 1983. 633 F. App’s 607, 610 (5th Cir.

2016). The Fifth Circuit upheld the district court’s dismissal of these claims on the basis

that neither an arm of the state nor a state official may be sued for economic damages or

other retrospective relieve under Section 1983. Id.

The Court concludes that because Stollings only seeks monetary relief for her Section

1983 claim, both Texas Tech and Hocutt in his official capacity are not persons under the

statute and, therefore, are not appropriate parties for such a claim. Accordingly, the Court

dismisses the Section 1983 claim.

C. Title VII Discrimination Claim

Stollings alleges a claim for Title VII discrimination against Texas Tech and Hocutt

under 42 U.S.C. § 2000e-2(a).6 Dkt. No. 15 at 40–41. The Court finds that Stollings has

adequately alleged a Title VII claim against Texas Tech but dismisses the claim against

Hocutt because he is not an appropriate party to this claim.

Title VII makes it unlawful for an employer to discharge any individual, or otherwise

discriminate against any individual, because of the individual’s sex. 42 U.S.C. § 2000e-

2(a)(1). Specifically, employers may not “limit, segregate, or classify [its] employees or

applicants for employment in any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise adversely affect his status as an

employee, because of such individual’s . . . sex.” § 2000e-2(a)(2). In other words, “an

employer who intentionally treats a person worse because of sex—such as by firing the

person for actions or attributes it would tolerate in an individual of another sex—

discriminates against that person in violation of Title VII.” Bostock v. Clayton Cnty., 140 S.

Ct. 1731, 1740 (2020). “It doesn’t matter if other factors besides the plaintiff’s sex

contributed to the decision.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741 (2020). “[I]f

changing the employee’s sex would have yielded a different choice by the employer—a

statutory violation has occurred.” Id. Additionally, the Supreme Court held recently that

for the purposes of Title VII, sex may also include an individual’s sexual orientation. Id. at

6 While Coach Stollings also includes a retaliation claim under Title VII in a subheading of her

amended complaint, she does not specifically allege any retaliatory conduct in the context of Title

VII to support this claim. Additionally, in the parties’ joint status report regarding the contents of

the scheduling order (Dkt. No. 27), Stollings only raises issues with regard to her Title VII

discrimination claim and only raises retaliation in the context of Title IX. Accordingly, to the extent

that Stollings maintains a retaliation claim under Title VII, the Court dismisses the claim for failure

to state a claim because there are no supporting factual allegations, and Stollings has failed to

respond to defendants’ arguments with respect to this claim.

1741. However, “[i]ndividuals are not liable under Title VII in either their individual or

official capacities.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003).

Therefore, the employer might be liable, but not individuals. Id.

At the motion-to-dismiss stage, the Court must analyze the Title VII claim under the

standards of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).7 Under Swierkiewicz, “there

are two ultimate elements a plaintiff must plead to support a disparate treatment claim

under Title VII: (1) an adverse employment action, (2) taken against a plaintiff because of her

protected status.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019)

(citing Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (quotations omitted)).

The plaintiff “need not make out a prima facie case of discrimination [under McDonnell

Douglas] in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.”

Raj, 714 F.3d at 331. But plaintiffs must “plead sufficient facts on all of the ultimate

elements of a disparate treatment claim to make [their] case plausible.” Chhim v. Univ. of

Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).

If the claim depends on circumstantial evidence of discrimination, the Fifth Circuit

has stated that “it may be helpful to refer to McDonnell Douglas to understand whether a

plaintiff has sufficiently pleaded an adverse employment action taken ‘because of’ [her]

protected status as required under Swierkiewicz.” Olivarez, 997 F.3d at 600. Therefore, the

Court may consider this framework, but need not find explicit evidence to support each

element of a claim at this stage. McDonnell Douglas requires that the plaintiff show that it:

(1) is a member of a protected group; (2) was qualified for the position at

issue; (3) was discharged or suffered some adverse employment action by the

7 While both sides argue this claim under the framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 803 (1973), the Fifth Circuit has held that this evidentiary standard is inappropriate at

the motion-to-dismiss stage. Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021).

employer; and (4) was replaced by someone outside [her] protected group or

was treated less favorably than other similarly situated employees outside the

protected group.

See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing McDonnell Douglas,

411 U.S. at 803).

Preliminarily, the Court dismisses this claim against Hocutt because Fifth Circuit

precedent precludes individual liability under Title VII. Ackel, 339 F.3d at 381. As for the

claims against Texas Tech, Stollings will ultimately have to prove the elements of the

McDonnel Douglas framework. Thus, it is helpful for the Court consider it in determining

whether the pleadings are sufficient. However, the Court does not require that the plaintiff

produce any specific evidence of each element at this stage because that inquiry is best

reserved for the summary-judgment stage. See Cicalese, 924 F.3d at 768 (citing Wheeler v. BL

Dev. Corp., 415 F.3d 399, 405–06 (5th Cir. 2006)).

Weighing the McDonnell Douglas framework is also beneficial because the parties

thoroughly briefed these elements. The parties agree that the framework’s first three factors

are present here. Stollings is protected on the basis of sex, was qualified for her position as

head basketball coach, and suffered an adverse employment action through termination.

However, the parties disagree as to what protected class Stollings belongs.

Stollings argues that she belongs to two distinct protected classes under Title VII—

based on sex and sexual orientation. Dkt. No. 25 at 24. Conversely, defendants argue that

she is only protected on the basis of sex, not sexual orientation. Dkt. No. 28 at 4. Stollings

only cites to Bostock to support her argument that sexual orientation is its own protected

class. Dkt. No. 25 at 26. While Bostock held that Title VII protection based on sex

classification includes an individual’s sexual orientation, it did not establish a new or

otherwise separate protected class, but instead clarified the scope of sex classification. See

Bostock, 140 S. Ct. at 1739 (interpreting the definition of sex as opposed to creating a new,

independent protected class). Notably, Bostock did not definitively decide the definition of

“sex,” but it premised its analysis on the assumption that in 1964 the term sex “refer[ed]

only to biological distinctions between male and female” and did not include “norms

concerning gender identity.” 8 Id. at 1739.

Additionally, Title VII explicitly identifies protected classes to include “race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The expression of one thing

implies the exclusion of others. Rittinger v. Healthy Alliance Life Ins. Co., 914 F.3d 952, 957

n.10 (5th Cir. 2019) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 107 (2012)). Therefore, a plain text reading of the statute makes

clear that sexual orientation is not its own protected class independent of sex. “After all,

only the words on the page constitute the law adopted by Congress and approved by the

President.” Bostock, 140 S. Ct. at 1738. As a result, the Court concludes that Stollings is

protected on the basis of sex, which includes sexual orientation in light of Bostock, but sexual

orientation does not constitute a distinct class as Stollings asserts.

In any event, there are two ways to satisfy the fourth element of the McDonnell

Douglas framework —by demonstrating either that she (1) “was replaced by someone

outside [her] protected group,” or (2) “was treated less favorably than other similarly

situated employees outside the protected group.” See McCoy, 492 F.3d at 556 (citing

8 See Grimm v. Gloucester Cnty. Sch. Brd., 972 F.3d 586, 633 (4th Cir. 2020) (Niemeyer, J. dissenting)

(highlighting the limitations of Bostock’s holding on the definition of “sex”); Adams v. Sch. Brd. Of St.

Johns Cnty., 3 F4th 1299, 1321 (11th Cir.) (Pryor, J. dissenting) (same) vacated, reh’g en banc granted,

No. 18-13592, 2021 3722168 (Aug. 23, 2021); Whitman-Walker Clinic, Inc. v. Dep’t of Health and

Human Servs., 485 F. Supp. 3d 1, 15 (D.D.C. 2020) (same). Bostock also appeared to reinforce the

religious-employer exemption and the commitment to safeguard employers’ religious convictions.

See 140 S. Ct. at 1753–54; Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d 1113, 1129–30 (D.N.D.

McDonnell Douglas, 411 U.S. at 803). The Court finds that Stollings has sufficiently alleged a

claim under the second method based on her allegations that she was treated less favorably

than other similarly situated employees outside of her protected group.9

There are several different ways that a plaintiff may allege a plausible Title VII

disparate-treatment claim. These include identifying derogatory remarks about the

protected class or status, a discrepancy or reduction in pay, or a demotion. Roberts v. Glenn

Indus. Grp., Inc., 998 F.3d 111, 118 (5th Cir. 2021) (holding sex-specific derogatory terms

may be used to establish discrimination under Title VII); Cicalese, 924 F.3d at 768 (holding

that the plaintiff sufficiently alleged disparate treatment when his employer made

derogatory anti-Italian remarks).

Here, Stollings alleges that the defendants’ “discriminatory conduct took the form of

lower pay, worse treatment, a hostile environment, disparate treatment, and, ultimately,

unjustifiable termination.” Dkt. No. 15 ¶ 260. To support this claim, Stollings states that

“male and heterosexual coaches were treated better than female and gay and lesbian

coaches” (Id. ¶ 91) and that the defendants “regularly made derogatory remarks about

women” (Id. ¶ 93).10 She alleges that the defendants “fostered an environment which saw

women and gays and lesbians as inferior, and penalized female and gay and lesbian coaches

who refused to conform” (Id. ¶ 119). Stollings also gives examples of some of these

9 While the Court recognizes that Stollings also argues that she has a Title VII claim based on the

sexual orientation of her replacement, the Court need not ultimately resolve that issue because,

independent of this position, Stollings’s Title VII claim survives dismissal.

10 Stollings allocates a significant portion of her pleadings to the discrepancies in resources between

the men’s and women’s athletic programs. These statements do not support any of her claims;

instead, these allegations appear to be an attempt to adjudicate the rights of others under Title VII or

Title IX, which are not cognizable as Stollings lacks standing to do so. Lowrey v. Texas A&M Univ.

Sys., 117 F.3d 242, 251 (5th Cir. 1997) (holding a college basketball coach lacked standing to assert

the rights of her students under Title IX).

circumstances. For example, she alleges that she was punished for engaging in the same

conduct as male coaches in similar programs—the use of heartrate-monitoring systems. See

Dkt. No. 15 ¶¶ 120–24, 133–34. The allegations concerning derogatory remarks and

punishment for using the same methods for which male coaches were praised are sufficient

to demonstrate less favorable treatment and state a claim under Title VII at this stage. See

Cicalese, 924 F.3d at 768. Accordingly, the Court finds that Stollings has stated a claim upon

which relief may be granted and denies the motion to dismiss with respect to the Title VII

claim against Texas Tech.11

D. Title IX Retaliation Claim

Stollings also brings a claim against Texas Tech and Hocutt under Title IX for

discrimination on the basis of sex and retaliation based on her role in reporting an alleged

Title IX violation within the athletic program. Dkt. No. 15 at 41–42. Title 20, United

States Code, Section 1681 (Title IX) provides that “[n]o person in the United States shall, on

the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any education program or activity receiving Federal financial

assistance.”12 Title IX also prohibits retaliation against third parties because they

complained about Title IX violations. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

174 (2005). However, the Fifth Circuit has expressly held that Title VII is the exclusive

remedy for alleged employment discrimination. Lowery v. Tex. A&M Univ. Sys., 117 F.3d

242, 248 (5th Cir. 1997); Lakoski v. James, 66 F.3d 751, 754 (5th Cir. 1995). Since Jackson,

11 Stollings does not allege a specific comparator coach to demonstrate disparate treatment but

scrutinizing whether fellow employees are really similarly situated is better suited for the summary-

judgment stage and should not result in a dismissal here. See Cicalese, 924 F.3d at 768.

12 There are several exceptions outlined in Section 1681; however, neither party argues that those

the Fifth Circuit continues to hold that Title VII preempts claims of employment

discrimination under Title IX. See Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1118

(5th Cir. 2021).

Despite the general rule, Fifth Circuit precedent provides that there are some

exceptions to Title VII preemption of Title IX claims made by employees of federally

funded institutions. Specifically, “although Title VII preempts a private right of action for

employment discrimination under Title IX, Title VII does not prohibit retaliation against

complainants who challenge the misallocation of resources in violation of Title IX, as such

complaints are wholly unrelated to the discriminatory employment practices proscribed by

title VII.” Taylor-Travis, 984 F.3d at 1118 (internal quotations omitted). Thus, for a Title IX

retaliation claim, the Court must “‘strip away’ any allegations that would support a private

cause of action for retaliation under Title VII” and “distinguish between retaliation suffered

by [the plaintiff] as a consequence of her participation in complaints and investigations

challenging alleged employment discrimination by [the university] and retaliation suffered

as a consequence of her participation in complaints and investigations challenging alleged

violations of Title IX.” Id.

Preliminarily, to the extent that Stollings attempts to bring an employment sex-

discrimination claim under Title IX, the Court dismisses this claim because Title VII

provides the exclusive remedy for discrimination in employment matters. See Lakoski, 66

F.3d at 754. Moreover, the Court dismisses the Title IX claim against Hocutt because “only

federally funded educational institutions are subject to liability in private causes of action

under Title IX.” Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

636 (1999); Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) (“Title IX reaches

institutions . . . but it has consistently been interpreted as not authorizing suit against school

officials, teachers, and other individuals.”). But the Court must determine whether Stollings

states a claim of retaliation under Title IX separate from her alleged employment-based

discrimination.

To establish a prima facie claim of Title IX retaliation, a plaintiff must allege that

(1) it participated in a protected activity under Title IX; (2) the defendant took an adverse

employment action; and (3) there is a causal connection between the protected activity and

the adverse employment action. See Taylor-Travis, 984 F.3d at 1119. Complaining of or

reporting violations of Title IX qualifies as a protected activity under the statute. See Jackson

544 U.S. at 174.

Here, the Court concludes that Stollings adequately alleges a Title IX claim against

Texas Tech to survive dismissal. The parties do not dispute that reporting a Title IX

violation is a protected activity and that Texas Tech took an adverse employment action by

terminating Stollings. Defendants, however, merely contend that Stollings’s claim is

preempted by Title VII because it is premised on employment discrimination and, therefore,

is not a protected activity. Dkt. No. 18 at 19. Defendants do not address Stollings’s

argument that her Title IX retaliation claim is based on her reporting activity and not her

protected class.

The Court finds that Stollings’s allegations that she was terminated for her reporting

conduct are not tied to her sex or sexual orientation. Stollings does not allege that the Title

IX retaliation was a result of her membership in a protected class but, instead, that she

engaged in a protected activity by reporting the Title IX violation. Dkt. No. 15 at ¶¶ 162–

80, 183. Based on the pleadings, it appears that the facts surrounding the alleged retaliation

claim are entirely separate from those supporting her Title VII claim; therefore, the Court

concludes that Title VII does not preempt Stollings’s Title IX retaliation claim.

The only remaining element at issue is causation. The Court also finds that Stollings

adequately alleges a causal connection because she presents more than mere conclusory

statements to support it. While Stollings expressly states that she was terminated in

retaliation for her reporting, she also alleges that the report brought potential embarrassment

to the university and Hocutt, which then resulted in her termination. Dkt. No. 15 at 25–26.

Stollings also alleges that her termination was four months after her report, which may lend

itself to an inference that the termination was a result of this report. Accordingly, taking all

well-pleaded facts as true—as it must at this stage—the Court concludes that Stollings

adequately states a claim for retaliation under Title IX against Texas Tech.

E. The Court dismisses the tort claims against Hocutt in his individual

capacity because they are precluded by the Texas Tort Claims Act.

Stollings also brings various tort claims against Hocutt in his individual capacity,

including defamation, defamation per se, and tortious interference with a contract.

Defendants argue that these claims should be dismissed because the alleged tortious conduct

upon which the claims are based were within the scope of Hocutt’s employment and,

therefore, should have been brought against Texas Tech. Additionally, they contend that

these intentional-tort claims would be barred by sovereign immunity if brought against

Texas Tech. Stollings does not respond to these arguments but merely states that Hocutt’s

actions were independent and unrelated to his role as athletic director without any further

explanation. See Dkt. No. 25 at 31. The Court dismisses these claims against Hocutt in his

individual capacity because Stollings fails to allege facts that indicate his conduct was

outside of the scope of his employment.

These are state-law claims; therefore, Texas state law governs their viability. The

TTCA “encourages, and in effect mandates, plaintiffs to pursue lawsuits against

governmental units rather than their employees when the suit is based on the employee’s

conduct within the scope of employment.” Texas Adjunct Gen.’s Off. v. Ngakoue, 408 S.W.3d

350, 350 (Tex. 2013) (citing Tex. Civ. Prac. & Rem. Code § 101.106). Under the TTCA,

scope of employment means “the performance for a governmental unit of the duties of an

employee’s office or employment and includes being in or about the performance of a task

lawfully assigned to an employer by a competent authority.” Civ. Prac. & Rem.

§ 101.001(5). An employee’s conduct may be within the scope of employment “even if done

in part to serve the purposes of the employee or a third person.” Anderson v. Bessman, 365

S.W.3d 119, 125–26 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Additionally,

intentional torts or negligently performed duties may fall within the scope of employment so

long as the conduct served any purpose of the employer. See Laverie v. Wetherbe, 517 S.W.3d

748, 755–56 (Tex. 2017); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994);

Fink v. Anderson, 477 S.W.3d 460, 471 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

Here, Hocutt’s alleged tortious conduct involves his communications with the Texas

Tech president regarding Stollings’s role as head coach and statements made during a press

conference following her termination. See Dkt. No. 15 at 37–39, 45–47. Stollings alleges

that these actions were not within the scope of Hocutt’s employment, but she provides no

explanation for this assertion. Hocutt is the Athletic Director and therefore responsible for

the entire athletic department at Texas Tech. His communications with the president

appear to have been necessary to his role because the president ultimately had the final say

on whether Stollings remained employed by the university under the terms of her

employment agreement. Additionally, the press conference where the alleged statements

were made was something routine in his role to communicate with the community and the

public regarding the state of academic and athletic affairs. Plaintiff has not alleged facts to

support a plausible inference that Hocutt was participating in the press conference as an

individual and not on behalf of Texas Tech in his role as the athletic director. Despite

Stollings’s allegations that Hocutt engaged in this conduct for personal gain, the pleadings

indicate that he was still acting within the scope of his employment as he advanced the goals

and purposes of Texas Tech in doing so, and Stollings’s allegations otherwise are

conclusory.13 Accordingly, the Court dismisses these claims because Stollings is barred

from bringing them against Hocutt in his individual capacity by the TTCA.14

F. Qualified Immunity and Supplemental Jurisdiction

Hocutt asserts qualified immunity in this case. Because the Court dismisses each

claim against Hocutt, both individually and in his official capacity, it need not address

whether qualified immunity applies. See Lincoln, 874 F.3d at 847 (addressing whether the

plaintiff stated a claim under the Federal Rules of Civil Procedure before assessing whether

qualified immunity barred its claims).

The defendants also request that if the Court grants their motion with respect to the

federal claims, each of the state-law claims raised against them should be dismissed for lack

of jurisdiction as the Court would lack supplemental jurisdiction. The Court need not

address this argument for two reasons. First, each of the state-law claims are dismissed on

an alternative basis. And second, the Court does not dismiss the Title VII and Title IX

13 Stollings alleges that Hocutt’s conduct was not in the best interest of the university when he made

these statements; however, that is not the standard the Court must consider. Instead, the Court must

determine if any purpose of his employer was served through his conduct. Discussing Stollings with

the president and participating in the press conference, no matter his alleged wrongful or negligent

conduct or potential additional incentive, still advances a university purpose.

14 The Court also notes that even if Stollings brought these claims against Texas Tech or Hocutt in

his official capacity, these intentional torts would also be barred by sovereign immunity.

claims against Texas Tech, meaning the federal causes of action which grant this Court

jurisdiction will remain live.

G. The Court grants Stollings’s request for leave to amend.

Federal Rule of Civil Procedure 15(a)(2) states that “[t]he court should freely give

leave when justice so requires.” And the Fifth Circuit has dictated a strong policy

favoring amendment of pleadings after dismissal. Great Plains Tr. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often afford plaintiffs at

least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear

that the defects are incurable or the plaintiffs advise the court that they are unwilling or

unable to amend in a manner that will avoid dismissal.”). In fact, the Fifth Circuit has even

held that a district court abuses its discretion if, after dismissal, it denies a timely motion

to amend without justification, at least when the defendant would not be unduly prejudiced

by the amendment. United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th

Cir. 2010).

In her response to defendants’ motion to dismiss, Stollings requests leave to amend

her complaint in the event that the Court grants the motion. Considering the strong policy

favoring amendment of pleadings after the dismissal of claims and that this is the first

dismissal of claims, the Court grants Stollings leave to amend her complaint.

5. Conclusion

The Court grants the motion to dismiss in part and denies it in part. Accepting, as it

must at the dismissal stage, all well-pleaded facts as true, the Court finds that Stollings has

stated a claim under Title VII for discrimination and Title IX for retaliation and that these

claims are not barred. But the Court finds that the state-law claims are barred by sovereign

immunity and that the defendants are not the proper parties to a Section 1983 claim.

Accordingly, the Court dismisses these claims. The Court grants Stollings’s request for

leave to amend her complaint, and she may do so within 21 days of the issuance of this

order.

So ordered on August 25, 2021.

JAMES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

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