# Bullock v. The University of Texas at Arlington

> District Court, N.D. Texas · December 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10450955

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** December 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10450955

## How later opinions describe it (automated extraction)

- 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
- noting that the Fifth Circuit never decided “whether Reickenbacker’s holding remains valid in cases beyond that specific purview”

## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450955. Public record. Not legal advice.