Bullock v. The University of Texas at Arlington

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TONI MARIE BULLOCK,

Plaintiff,

v. No. 4:21-cv-0864-P

THE UNIVERSITY OF TEXAS AT

ARLINGTON,

Defendant.

MEMORANDUM OPINION & ORDER

Before the Court is Defendant University of Texas at Arlington’s

Motion to Dismiss. ECF No. 8. For the following reasons, the Court will

GRANT the Motion to Dismiss.

BACKGROUND

Plaintiff Toni Marie Bullock (“Bullock”) is a student at the University

of Texas at Arlington (“UTA”). Pl.’s Compl. ¶ 11, ECF No. 1. In March

2018, Bullock’s doctor requested that Bullock be given additional time

to complete assignments due to her post-traumatic stress disorder

(“PTSD”) and major depressive disorder. Id. UTA’s Office for Students

with Disabilities granted these accommodations. Id. However, a UTA

professor denied Bullock the accommodations for certain assignments

because Bullock sent the accommodation letter to the professor’s

personal email, rather than the professor’s work email. See id. ¶ 12.

Bullock was not granted extra time until a second accommodation letter

was provided, but the professor refused to retroactively apply the

accommodation. Id. ¶¶ 12–13. As a result, Bullock received a failing

grade in the class and suffered academically in all classes taught by this

professor. Id. ¶ 13.

After Bullock filed a complaint with the Department of Education

Office for Civil Rights, UTA agreed to allow Bullock to retake courses

that denied her accommodations retroactively and to allow the new

grade to replace her previous grade. Id. ¶ 14. UTA also agreed to refund

Bullock’s tuition and fees relating to those courses. Id.

Bullock nevertheless sued UTA in state court for failure to

accommodate on October 14, 2019. Pl.’s Resp. to Def.’s Mot. to Dismiss

¶ 18, ECF No. 13. UTA moved to dismiss the case for a lack of subject

matter jurisdiction, which the state court granted on June 8, 2020.

Bullock appealed the dismissal, and the state court of appeals affirmed

the dismissal on May 20, 2021. Id. ¶ 18–19.

Then, Bullock sued UTA in this Court, alleging that UTA violated

Title IX of the Education Amendments of 1972, Title II of the Americans

with Disabilities Act (“ADA”), and Rehabilitation Act of 1973

(“Rehabilitation Act”) by its failure to accommodate her. Pl.’s Compl.

¶ 15. Bullock alleges, inter alia, that having the application of her

accommodation denied originally caused her severe emotional distress

and delayed her education by at least one year. Id. ¶ 16.

Defendant UTA moved to dismiss Bullock’s claims, arguing that

several theories preclude liability, including: sovereign immunity, the

expiration of the statute of limitations, and Bullock’s failure to state a

claim upon which relief can be granted. See generally Def.’s Mot. to

Dismiss, ECF No. 8. In response, Bullock withdrew her claim under

Title IX, but she opposed the motion in each other respect. See Pl.’s Resp.

at 10, ECF No. 13.

LEGAL STANDARD

A. Motion to Dismiss under Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) “allow[s] a party to challenge

the subject matter jurisdiction of the district court to hear a case.”

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

courts are courts of limited jurisdiction and possess only that power

authorized by the Constitution and statute. Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994). Parties “may neither consent

to nor waive federal subject matter jurisdiction.” Simon v. Wal-Mart

Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). The Constitution does not

provide for “federal jurisdiction over suits against nonconsenting

states.” Kimel v. Fla. Bd. of Regents, 5287 U.S. 62, 73 (2000). States may

exercise sovereign immunity from suit unless it has been waived or

Congress has validly abrogated it. See Kentucky v. Graham, 473 U.S.

159, 169 (1985).

“The burden of establishing subject matter jurisdiction [and resisting

dismissal under Rule 12(b)(1)] rests upon the party asserting

jurisdiction.” Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales,

Inc., 666 F.3d 932, 935 (5th Cir. 2012); see also Settlement Funding,

L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 537 (5th Cir. 2017). “If

the record does not contain sufficient evidence to show that subject

matter jurisdiction exists, ‘a federal court does not have jurisdiction over

the case.’” Settlement Funding, 851 F.3d at 537 (quoting Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)).

B. Motion to Dismiss under Rule 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires a claim for relief to

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

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). If a plaintiff fails to

satisfy Rule 8(a), the defendant may file a motion to dismiss the claims

under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a

claim upon which relief may be granted.” Id. 12(b)(6).

To prevail on a motion to dismiss pursuant to Rule 12(b)(6), a

defendant must show that the plaintiff did not plead “enough facts 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 facts that allow the court to draw the reasonable

inference that the defendant is legally liable for the misconduct alleged,

regardless of the likelihood of the assertions. Id. at 556–57. Plaintiff’s

factual pleadings must be more than “merely consistent with” a

defendant’s liability; they must show that the plaintiff is plausibly

entitled to relief. Id. at 557.

In reviewing a Rule 12(b)(6) motion, the court must accept all well-

pleaded facts in the complaint as true and view them in the light most

favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509

F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept legal

conclusions as true, and only a complaint that states a plausible claim

for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,

678–79 (2009).

“Generally, a court ruling on a 12(b)(6) motion may rely on the

complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763

(5th Cir. 2011) (citations omitted); see also Tellabs, Inc. v. Makor Issues

& Rights, Ltd., 551 U.S. 308, 322 (2007). A court may also consider

documents that a defendant attaches to a motion to dismiss if they are

referenced in the plaintiff’s complaint and are central to the plaintiff’s

claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99

(5th Cir. 2000).

ANALYSIS

When a court lacks subject matter jurisdiction, it cannot decide the

merits of a claim; this is true even when the prevailing party on the

merits is the same party asserting that the court lacks jurisdiction.

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). Because

jurisdiction must be determined first, see id., the Court will first resolve

UTA’s assertion of sovereign immunity before turning to its argument

that the statute of limitations bars Bullock’s claims.

A. UTA’s sovereign immunity bars only Bullock’s ADA claims.

While state sovereign immunity pre-exists the Constitution, the

Eleventh Amendment confirms that there is no “Judicial power of the

United States” over a suit “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; see also Alden v. Maine, 527 U.S. 706, 713 (1999).

Thus, “as a public university,” UTA is entitled to sovereign immunity.

See Duncan v. Univ. of Tex. Health Sci. Ctr. at Hous., 469 F. App’x 364,

366 (5th Cir. 2012). However, there are “two fundamental exceptions to

the general rule that bars an action in federal court filed by an

individual against a state:” (1) congressional abrogation or

(2) state consent. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 276–77

(5th Cir. 2005) (en banc). Congress can only abrogate this immunity if it

is “unmistakably clear” in its language and if it “acts pursuant to a valid

exercise of its power under Section 5 of the Fourteenth Amendment.”

Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). States may

waive their sovereign immunity if the waiver is done so knowingly and

voluntarily. Pace, 403 F.3d at 277–79.

1. Because Bullock does not allege a viable ADA claim, UTA’s

sovereign immunity has not been validly abrogated.

States are not immune from suits alleging violations of the ADA.

42 U.S.C. § 12202. However, the Supreme Court has narrowly

interpreted this abrogation of state sovereign immunity to apply only to

claims that a state’s conduct “actually violates the Fourteenth

Amendment.” United States v. Georgia, 546 U.S. 151, 159 (2006). A

court’s analysis proceeds on a “claim-by-claim basis” using the three-

part Georgia test to determine whether Title II validly abrogates state

sovereign immunity.1 Block v. Tex. Bd. of Law Exam’rs, 952 F.3d 613,

617 (5th Cir. 2020). First, courts must determine “which aspects of the

State’s alleged conduct violated Title II.” Id. (quoting Georgia, 546 U.S.

at 159). To satisfy this factor, a plaintiff must state a plausible claim

under Title II. Id. at 617–18. Second, courts must determine “to what

extent such misconduct also violated the Fourteenth Amendment.” Id.

at 617. Finally, courts must determine “whether Congress’s purported

abrogation of sovereign immunity as to that class of conduct is

nevertheless valid” if the Title II violation did not also violate the

Fourteenth Amendment. Id.

“To establish a prima facie case of discrimination under the ADA,

[Bullock] must show (1) [s]he is a ‘qualified individual’ under the ADA;

(2) [s]he was excluded from participation in, or denied the benefits of,

services, programs, or activities for which [UTA] is responsible; and

(3) the exclusion was by reason of disability.” Id. at 618. “Title II requires

public entities to make ‘reasonable modifications in policies, practices,

or procedures’ for disabled individuals.” Id. (citing 28 C.F.R.

1In Reickenbacker v. Foster, the Fifth Circuit determined “that Title II of the ADA,

as a whole,” was not a valid abrogation of state sovereign immunity. 274 F.3d 974, 983

(5th Cir. 2001). However, the precedential value of Reickenbacker is unclear in light of

subsequent caselaw. See Block, 952 F.3d at 617 (noting that the Fifth Circuit never

decided “whether Reickenbacker’s holding remains valid in cases beyond that specific

purview”); see also Pace, 403 F.3d at 277 n.14.

§ 35.130(b)(1)(7)(i)). “A public entity’s failure to make a reasonable

modification [(i.e., failure to accommodate)] may satisfy the second and

third prongs of the prima facie case.” Id.

Here, Bullock alleges that UTA failed to accommodate her because it

did not provide her additional time as requested by her doctor. Pl.’s

Compl. ¶ 15. To establish the prima facie case, she alleges that she is a

“qualified individual” under the ADA because she suffers from “severe

major depressive disorder” and PTSD. Id. ¶ 11. Under the ADA, a

qualified individual is a person who suffers from a “physical or mental

impairment that substantially limits one or more of the major life

activities,” which include “seeing, . . . learning, reading, concentrating,

thinking, communicating, and working.” 42 U.S.C. § 12102(2) (emphasis

added). Bullock alleges that her PTSD and depressive disorder affect her

education. See Pl.’s Compl. ¶ 11. She argues that the “low grades and

stress” that resulted from not receiving the accommodation are evidence

of her impairment. Id. ¶ 13. Although these allegations may be

inadequate to show how Bullock’s impairment limits her major life

activities, “the applicable regulations make clear that PTSD will, in

most cases, sufficiently limit a major life activity.” Epley v. Gonzalez, 860

F. App’x 310, 313 (5th Cir. 2021). “[G]iven [its] inherent nature, it should

easily be construed that post-traumatic stress disorder . . . substantially

limit[s] brain function.” Id. (citing 28 CFR § 35.108(d)(2)) (cleaned up).

Accordingly, the Court concludes that Bullock pled sufficient facts to

establish that she is a “qualified individual” under the ADA.

Next, arguing the second and third elements of the prima facie case,

Bullock alleges that UTA denied her the accommodation of extra time

on assignments. While the refusal to provide reasonable modifications

may satisfy these elements, the right to reasonable accommodation is

not the right to the “the ‘best’ accommodation possible” or “[Bullock’s]

preferred accommodation.” E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462,

471 (5th Cir. 2009). Refusal to make accommodations apply

retroactively is not a per se violation of the ADA. See Maples v. Univ. of

Tex. Med. Branch at Galveston, 901 F. Supp. 2d 874, 882 (S.D. Tex.

2012).

In this case, UTA approved Bullock’s accommodation request and

provided her with two accommodation letters, granting her the

additional time she was seeking. Pl.’s Compl. ¶¶ 11–13. Bullock’s

discrimination claim arises from a professor’s refusal to “retroactively

apply” the accommodation; this refusal, Bullock argues, caused her

“negative grades . . . on certain assignments.” Id. ¶ 13. Yet Bullock

acknowledges that UTA offered her the opportunity to “retake the

courses that she previously took . . . at no additional cost to her, to

utilize the new grade she made in the course in calculating her GPA[,]”

and to “refund[] her tuition and fees relating to one of the courses.” Id.

¶ 14. Further, once Bullock gave her professor the second

accommodation letter, her professor accommodated her as requested.

Bullock does not plead any facts showing why these accommodations are

unreasonable or inadequate. The only accommodation UTA did not

provide was forcing the professor to retroactively apply the additional

time to assignments already completed. Standing alone, UTA’s refusal

to apply the accommodations retroactively is not a violation of the ADA.

See Maples, 901 F. Supp. 2d at 882. Bullock does not allege that she was

discriminated against as a qualified individual in any other way. Thus,

she did not plead facts to support the second element of the prima facie

case of discrimination.

Bullock, therefore, failed to establish the prima facie case of

discrimination based on a plausible violation of the ADA and her claim

fails the first step of the Georgia test.2 Accordingly, UTA is entitled to

2Because the facts of this case do not require the analysis to proceed beyond the

first step of the Georgia test, the Court need not decide whether the accommodation

obligation imposed by Title II of the ADA, as it relates to non-fundamental rights,

exceeds that imposed by the Constitution and is therefore not a valid abrogation of

state sovereign immunity. Block, 952 F.3d at 617 n.11.

However, as this Court has noted before, “the Supreme Court has never before

recognized access to public education[] or freedom from disability discrimination in

education[] to be fundamental rights, [and the Fifth Circuit has never clarified]

whether the holding in Lane extends to disability discrimination in access to public

education.” Knighton v. Univ. of Texas at Arlington, No. 4:18-CV-00792-P, 2020 WL

1493554, at *6 (N.D. Tex. Mar. 27, 2020) (Pittman, J.) (quoting Pace, 403 F.3d at 287).

Accordingly, it is unlikely that this Court would have found a valid abrogation of state

sovereign immunity under the final Georgia test step, even if Bullock stated a plausible

claim under the ADA.

sovereign immunity because the ADA does not validly abrogate it in this

instance.

2. UTA has waived sovereign immunity for Bullock’s claims under

the Rehabilitation Act.

The Rehabilitation Act also contains a sovereign immunity exception

for any “recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7.

Because this provision is a use of Congress’s spending power, and not its

Section 5 authority, a court only needs to determine if the state waived

its immunity as a condition of receiving the funds “knowingly” and

“voluntarily.” See Pace, 403 F.3d at 280–281. The Fifth Circuit has

already concluded that educational institutions validly waive sovereign

immunity when they receive federal funds under Rehabilitation Act. See

id.; see also Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 453–54

(5th Cir. 2005). Bullock alleges that UTA is the recipient of federal

funding, which UTA does not dispute. Pl.’s Compl. ¶ 15.

UTA argues that acceptance of federal funds does not “automatically

constitute a waiver” of its sovereign immunity. Def.’s Reply at 2, ECF

No. 18. However, this argument relies solely on interpreting the

Rehabilitation Act’s authorization for suit, 29 U.S.C. § 722(c), as

insufficient to constitute “knowing and voluntary waiver.” Id. (citing

Hurst v. Tex. Dep’t of Assistive & Rehab. Servs. 482 F.3d 809, 811 (5th

Cir. 2007)). UTA ignores the clear conditional funding provision that the

Fifth Circuit has already upheld as a valid waiver of immunity.

42 U.S.C. § 2000d-7; see Pace, 403 F.3d at 280–281. UTA’s only

counterargument on this point is that the overturned panel decision in

Pace, 325 F.3d 609, 615 (5th Cir. 2003), did not find waiver. Def.’s Reply

at 3. UTA also relies on the state proceedings, which explicitly found a

lack of waiver only to federal claims under the Rehabilitation Act in state

court. Bullock v. Univ. of Tex. at Arlington, No. 02-20-00212-CV, 2021

WL 2006030, at *3–6 (Tex. App.—Ft. Worth, 2021, no pet.) (mem. op.).

None of these arguments controvert the clear waiver of immunity under

§ 2000d-7. Accordingly, the Court concludes that UTA waived sovereign

immunity for Rehabilitation Act claims.

B. The statute of limitations bars Bullock’s claims.

The statute of limitations for claims under the ADA and

Rehabilitation Act is two years. See Frame v. City of Arlington, 657 F.3d

215, 237 (5th Cir. 2011) (concluding that because neither federal law has

its own limitations period, the statute of limitations for personal-injury

tort claims, the closest analogous state claim, applies). A claim accrues

when “the plaintiff becomes aware that [s]he has suffered an injury.” Id.

at 238. Here, UTA asserts, and Bullock concedes, that Bullock’s claims

“accrued no later than December 2018” when she received her grades

from the Fall 2018 courses. Def.’s Mot to Dismiss at 10; Pl.’s Resp.¶ 18.

Accordingly, the statute of limitations for Bullock’s claims would run in

December 2020. This case was filed on July 16, 2021, after the deadline.

See generally Pl.’s Compl.

Plaintiff argues that Texas’s “savings clause” tolls the statute of

limitations. Pl.’s Resp. ¶¶ 19–21. Bullock states that she timely filed an

action against UTA in state court on October 14, 2019. Id. ¶ 18. The

state court dismissed her case on June 8, 2020 for lack of jurisdiction,

which was affirmed by the appellate court on May 20, 2021. Id. ¶ 19.

Texas law allows a plaintiff a grace-period of sixty days after a dismissal

for lack of jurisdiction becomes final to file her action in a court with

jurisdiction. TEX. CIV. PRAC. & REM. CODE § 16.064(a). A state law

savings clause may apply when the relevant federal law provides no

specific limitations period. See Frame, 657 F.3d at 237; see also 4 Charles

Alan Wright & Arthur R. Miller, 4 FED. PRAC. & PROC. CIV. § 1056 (4th

ed.). Because neither the ADA nor the Rehabilitation Act have specific

federal limitations periods, Texas’s savings clause will apply. See Frame,

657 F.3d at 237. UTA’s argument that equitable tolling does not apply

is irrelevant because there is an on-point statutory tolling provision.

UTA argues that the dismissal became “final” when the state district

court dismissed the case, not when the Court of Appeals affirmed the

dismissal, so Bullock has missed her sixty-day window to file under the

tolling statute. A judgment’s finality is assessed differently, “depending

on the context.” Long v. Castle Tex. Prod. Ltd., 426 S.W.3d 73, 78 (Tex.

2014). Texas courts generally find that, in the context of a savings clause

analysis, a judgement is final when “it disposes of all issues and parties

in the case and the court’s power to alter the judgment has ended.” Oscar

Renda Contracting, Inc. v. H & S Supply Co., Inc., 195 S.W.3d 772, 773,

776 (Tex. App.—Waco 2006, pet. denied) (citing Street v. Honorable

Second Ct. of Appeals, 756 S.W.2d 299, 301 (Tex. 1988)). Further, a

judgment may be final “despite the taking of an appeal.” Scurlock Oil

Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (quoting RESTATEMENT

(SECOND) OF JUDGMENTS § 13). Even construing this statute liberally,

the dismissal became final when the trial court’s “plenary power over its

judgment of dismissal expired.” Oscar Renda Contracting, Inc., 195

S.W.3d at 777. Thus, the dismissal became final on July 7, 2020, thirty

days after the judgment was signed. See TEX. R. CIV. P. 329b.

Bullock filed this case on July 16, 2021. See generally Pl.’s Compl.

The sixty-day grace period after Bullock’s first action was dismissed

ended on September 5, 2020, and the statute of limitations expired in

December 2020. Bullock filed this action after the savings clause expired

and the statute of limitations. Accordingly, her claims must be

dismissed.

C. Bullock abandoned her Title IX claims.

UTA argues that Bullock did not plead any facts that would support

sex discrimination and that she therefore failed to state a claim under

Title IX. Def.’s Mot. to Dismiss at 12. In response, Bullock stated that

she would amend the complaint to remove these claims and did not

contest UTA’s argument. Pl.’s Resp. ¶ 23. Failure to pursue or to defend

a claim in response to a motion to dismiss constitutes waiver or

abandonment of that claim. Vela v. City of Houston, 276 F.3d 659, 678–

79. Because Bullock agreed to remove the Title IX claims in an amended

complaint, she has abandoned them. Accordingly, her Title IX claims are

subject to dismissal. Because Bullock’s claims are barred by sovereign

immunity and the statute of limitations, allowing her to amend the

complaint would be futile.

CONCLUSION

For the foregoing reasons, the Court concludes that Defendant

University of Texas Arlington’s Motion to Dismiss (ECF No. 8) should

be, and it is hereby, GRANTED. Accordingly, Plaintiff Toni Marie

Bullock’s claims under the Americans with Disabilities Act and Title IX

are DISMISSED without prejudice. Finally, Plaintiff Toni Marie

Bullock’s claims under the Rehabilitation Act are DISMISSED with

prejudice.

SO ORDERED on this 10th day of December, 2021.

y “ — 7

Web LT (Ph

Mark T. Pittman

United States District Judge

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