Doe v. The University of Texas M.D. Anderson Cancer Center

UNITED STATES DISTRICT COURT January 30, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOHN DOE, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:21-CV-1356

§

THE UNIVERSITY OF TEXAS M.D. §

ANDERSON CANCER CENTER, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court are two motions to dismiss. The first motion was filed by

Defendants University of Texas M.D. Anderson Cancer Center (“MDA”) and University

of Texas Health Science Center at Houston (“UTH”), to which the parties refer collectively

as the “Institutional Defendants.” That motion (Dkt. 30) is GRANTED IN PART AND

DENIED IN PART. The second motion was filed by Defendants Margaret McNeese

(“McNeese”), Tiffany Obeng (“Obeng”), Michael Redwine (“Redwine”), Deana Moylan

(“Moylan”), Sheri Wakefield (“Wakefield”), Yolan Campbell (“Campbell”), Karen Reed

(“Reed”), Vicki King (“King”), and Kimberly Miller (“Miller”), to whom the parties refer

collectively as the “Individual Defendants.” That motion (Dkt. 31) is also GRANTED IN

PART AND DENIED IN PART.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff John Doe (“Doe”) accuses Defendants of mishandling an investigation into

allegations that he sexually harassed and stalked Lily Cai (“Cai”), with whom Doe worked

in a lab at MDA.

Doe began medical school at UTH in 2015. (Dkt. 13 at p. 20). Shortly thereafter,

Doe began working part-time at MDA in the research laboratory of Dr. Ronald DePinho

(“Dr. DePinho” and “the DePinho lab”). (Dkt. 13 at pp. 20–21). During his second year of

medical school, Doe received a research grant from the Howard Hughes Medical Institute

Medical Research Fellows Program (“HHMI”) and was accepted into a dual-degree

MD/PhD program at UTH, though he did not immediately enroll in that program. (Dkt. 13

at p. 21; Dkt. 13-1 at p. 164). Doe then took a one-year leave of absence from his medical

school studies to work full-time in the DePinho lab as part of the HHMI fellowship. (Dkt.

13 at p. 21; Dkt. 13-1 at p. 239). While working at the DePinho lab and on leave from

medical school, Doe applied for and received a second research grant from the HHMI.

(Dkt. 13 at pp. 21–22). In April of 2018, UTH approved Doe’s request for a second year

of leave from his medical school studies so that he could take the second HHMI grant and

continue working full-time in the DePinho lab. (Dkt. 13-1 at p. 239). After the leave

approval, Doe was scheduled to return to medical school at UTH as a third-year student in

the spring of 2019. (Dkt. 13-1 at p. 239).

While working in the DePinho lab, Doe met Cai. Born and educated in China, Cai

was a graduate student at UTH who began working as a graduate research assistant in the

DePinho lab in 2017. (Dkt. 13 at pp. 21, 24). The DePinho lab group was small; only four

graduate students (counting Cai and Doe) worked there. (Dkt. 13 at p. 22). All of the

graduate students were female except for Doe. (Dkt. 13 at p. 22).

According to Doe’s live complaint, Doe “interacted with Cai in ways similar to how

he interacted with other co-workers.” (Dkt. 13 at pp. 22–25). However, Doe’s “extremely

limited ability to communicate in Mandarin” and Cai’s “limitations in the use of the

English language” made it very difficult for Doe and Cai to understand each other unless

they were using “Mandarin to English and English to Mandarin social media and phone

apps[.]” (Dkt. 13 at pp. 24–25). Even with the help of the apps, which were “difficult to

use,” there was a language barrier; the apps, “simply because of the inherent nature of the

languages involved[,]” did not always translate messages correctly. (Dkt. 13 at p. 24).

Nevertheless, in his live complaint Doe describes his interactions with Cai as “sociable,

normal and pleasant.” (Dkt. 13 at p. 25).

Cai’s perception of the communications between her and Doe was evidently quite

different. In October of 2018, about a year after Doe and Cai started working together, Cai

sent an email to Dr. DePinho in which she accused Doe of sexually harassing and stalking

her. (Dkt. 13 at p. 26). A criminal proceeding against Doe, as well as a joint investigation

by UTH and MDA of Cai’s allegations, soon followed.

—The criminal proceeding against Doe

UTH campus police questioned Doe in November of 2018. (Dkt. 13 at p. 26). After

Doe was questioned, he was charged by information with a misdemeanor violation of

Section 42.07(a)(7) of the Texas Penal Code (“the electronic-communications-harassment

statute”). (Dkt. 13-1 at pp. 202–19). The affidavit supporting the charging instrument was

sworn out by Miller, a UTH police detective; and Miller said in her affidavit that Cai had

told her that Doe had spent months “following [Cai] and trying to talk to her” after she told

him to stop. (Dkt. 13-1 at p. 202). According to Cai, Doe, as he says in his live pleading,

began “sending messages through a chat app on her phone[;]” but Cai told Miller that she

“told [Doe] to stop contacting her” and “blocked [Doe] in the app[.]” (Dkt. 13-1 at p. 202).

Cai further told Miller that Doe “continued to send harassing emails and follow [Cai]” after

Cai “advised [Doe] in email and in person on multiple occasions to stop following her and

attempting to communicate with her[.]” (Dkt. 13-1 at pp. 202–03). Miller’s affidavit

included the following quote from an email that Doe sent to Cai on October 29, 2018: “I’m

willing to sacrifice by committing many more annoying and disgusting sins in order to help

you hate me even more.” (Dkt. 13-1 at pp. 202–03). Cai told Miller that she was “afraid

that [Doe] w[ould] harm her.” (Dkt. 13-1 at p. 203).

Doe successfully moved to dismiss the criminal information filed against him on

the basis that the electronic-communications-harassment statute is facially

unconstitutional. (Dkt. 13-1 at p. 204). The trial judge expressly “did not consider the

factual merits” of the case against Doe. (Dkt. 13-1 at p. 204). The Fourteenth Court of

Appeals of Texas affirmed. (Dkt. 13-1 at p. 218). However, the Texas Court of Criminal

Appeals vacated the Fourteenth Court’s judgment and remanded the case to that court for

further consideration in light of two recent opinions in which the Court of Criminal Appeals

held that the electronic-communications-harassment statute is facially constitutional. See

Ex parte Chen,1 --S.W.3d--, 2022 WL 17171098 (Tex. Crim. App. Nov. 23, 2022). Doe

1 To the extent possible, the Court, like the parties, has referred and will continue to refer to Doe

by his pseudonym, despite Doe’s failure to extend that same pseudonymous courtesy to Cai.

However, the Court includes this case citation despite its use of Doe’s real name because the

appellate decisions examining Doe’s criminal case are important (and judicially noticeable)

contextual facts that are a matter of public record. The Court further notes that Doe included his

real name in documents that he attached to his live complaint. (Dkt. 13-1 at pp. 163, 179, 278).

Doe also filed a civil lawsuit against Cai in Texas state court using his real name. See Cai v. Chen,

No. 14-20-00588-CV, 2022 WL 2350049 (Tex. App.—Houston [14th Dist.] June 30, 2022, pet.

filed).

has filed a petition for a writ of certiorari with the Supreme Court. See United States

Supreme Court docket number 22-497.

—MDA’s report on Cai’s allegations

MDA placed Doe on paid investigative leave in November of 2018. (Dkt. 13-1 at p.

156). Reed, a human resources specialist in the Equal Employment Opportunity and

Human Resources Regulations Department at MDA, conducted MDA’s part of the joint

MDA/UTH investigation. (Dkt. 13-1 at p. 190). Reed concluded that, while “there was

insufficient evidence to substantiate a violation of [MDA’s] Sexual Harassment and Sexual

Misconduct Policy[,]” she found “sufficient evidence to substantiate a violation of

Principle Nine of [MDA’s] Code of Conduct.” (Dkt. 13-1 at p. 190).

Principle Nine of MDA’s Code of Conduct (“Principle Nine”) reads, “We affirm

the need to demonstrate mutual respect and to acknowledge interdependence as co-workers

responsible for the welfare of patients.” (Dkt. 13 at p. 78). The conduct found by Reed to

be potentially violative of Principle Nine revolved around Cai’s allegations that Doe

continued to contact her after she told him to leave her alone. (Dkt. 13-1 at p. 193).

According to Reed’s investigative report, “[e]vidence confirmed that Cai communicated to

[Doe] in email that she did not want to be his friend and did not want to talk to him.” (Dkt.

13-1 at p. 193). Reed wrote in her report that she obtained significant evidence to that effect

from Doe himself, who “affirmed that Cai told him in an email that she was fearful of him”

and “admitted during the investigative process that Cai may have found his behavior and

actions threatening.” (Dkt. 13-1 at p. 193). Reed further wrote that:

[b]y his own testimony, [Doe] acknowledged that he continued to greet and

talk to Cai even though she told [Doe] it made her (Cai)2 uncomfortable.

While [Doe] did not perceive his communications with Cai as threatening,

[Doe] acknowledged that his communications with Cai became escalated.

[Doe] further acknowledged that his tone also became more argumentative.

Dkt. 13-1 at p. 193.

—UTH’s report on Cai’s allegations

When Cai’s allegations against Doe were made and investigated, Doe was classified

as a UTH student, though he was on leave from his medical school studies and had not yet

enrolled in his dual-degree MD/PhD program. (Dkt. 13-1 at p. 164). Obeng, an equal

opportunity advisor in the Diversity and Equal Opportunity Department at UTH, conducted

UTH’s part of the joint MDA/UTH investigation. (Dkt. 13-1 at p. 190).

Obeng’s investigative report reached conclusions similar to those of Reed’s report.

Obeng was unable to confirm that Doe had sexually harassed Cai, but she found evidence

that: (1) that Doe had “continued messaging [Cai] after she asked him to stop[;]” (2) that

Doe had “sent threatening3 messages to [Cai;]” and (3) that “[Cai] was fearful of [Doe.]”

(Dkt. 13-1 at pp. 164–88). In her report, Obeng included a copy of a lengthy email exchange

between Doe and Cai that was initiated by Doe and took place in late October of 2018.

(Dkt. 13-1 at pp. 177–81). The October 2018 email exchange between Doe and Cai was

apparently written in Mandarin, but Obeng’s report contains an English translation. (Dkt.

13-1 at pp. 177–81). In the exchange, Cai repeatedly accuses Doe of harassing her and asks

2 Bracketed words and letters in this quote and in other quotes from the record in this case were

included by the Court, but this specific parenthetical clarification was contained in Reed’s report.

3 Obeng’s report defines “threatening” as “intimidating, bullying, hostile.” (Dkt. 13-1 at p. 177).

him to stop. (Dkt. 13-1 at pp. 177-81). Cai’s first email (out of four that she sent) reads, in

its entirety:

PIRES. wa

Translation: Don't talk nonsense. stop your harassment!

Dkt. 13-1 at p. 180.

Her second email reads:

>>> HFASKRRAE ESTA. BARA. CRRANLBAAAB. ERUIGERR

S. AARAMFKSKRVPURTAR. WHRRERK. 18, KRARRHMAC. BE-F

RAELHERALMAA MR?

>2>3>>

>>>>> Translation: Because of your repeated harassment and abnormal behavior, you affected my work

and caused fear to me and negativelyimpacted me. |am very disgusted with you. For this reason, | have

repeatedly told you about this problem, but you are keeping harassing me. You should ask yourself. We

are working In the same tab and you shouldn't intimidate me anymore.

Dkt. 13-1 at p. 180.

And in her third and fourth emails, Cai again accuses Doe of harassment and says

to him, “I hope you stay away from me.” (Dkt. 13-1 at p. 180).

In his emails during the October 2018 exchange, Doe appears to grow increasingly

agitated by Cai’s accusations of harassment, culminating in this email:

FHABRRGE. SKBRHLPRSBSS. FRBSB? RACKRHERH. RNAKE

BE. AGFACTST. RERNHMAUE. □□□□□□□□□□□□□□□□□□□□□□

RUURGRKD. MER. GRERRECHKSHRE. REBH. MRHRLOAARHKM □□

ATMHERA—-S, RRA, MRERSHRTE RSH .

Translation: You went home so late yesterday, and today you still came much earfler than usual, would

you not feel sleepy? | only treat you as one of my fel low students, | have not thought about our

relationship as something else, you think too much of our relationship, and blame me for hurting you.

No matter how many lies you have told me, it can't change the fact youknow what is going on. | know

that you are very disappointed and very aggrieved. You need to hide from me and need your mother to

comfort you, at which | am not surprised. If you have to hate me, then let it be. In order to help you hate

me more, | am willing to make Sacrifices and do a lot of things that make you hate and distike me.

Dkt. 13-1 at p. 179.

7/26

—Doe’s allegations against Cai

In December of 2019, after UTH and MDA had completed their investigation of

Cai’s allegations against Doe, the matter took an unusual turn: Doe filed a complaint with

each institution accusing Cai of stalking him in 2018. (Dkt. 13 at p. 47; Dkt. 13-1 at pp.

254, 260). Doe accused Cai of sabotaging his experiments, colluding with UTH and MDA

officials, filing a false complaint, and making false statements about him. (Dkt. 13-1 at p.

260).

Obeng, who evaluated Doe’s complaint for UTH, declined to initiate an

investigation into Doe’s allegations after concluding that Doe had “not allege[d] any

conduct by Ms. Cai that would support an allegation of stalking[.]” (Dkt. 13-1 at p. 257).

Obeng also declined Doe’s request that she recuse herself from the evaluation of his

complaint. (Dkt. 13-1 at p. 254). Campbell, the Associate Vice President of Human

Resources at MDA, evaluated Doe’s complaint for MDA. (Dkt. 13-1 at p. 260). After

retaining outside counsel to conduct an investigation, Campbell concluded that Doe’s

allegations against Cai were unsubstantiated. (Dkt. 13-1 at p. 260). Campbell also

concluded that Doe’s “allegations against Ms. Cai of research sabotage and collusion with

[UTH] and [MDA] officials constitute[d] retaliation against Ms. Cai in violation of

[MDA’s] Non-Retaliation Policy.” (Dkt. 13-1 at p. 260).

—Doe’s current status at UTH and MDA

Since Obeng found evidence supporting some of Cai’s allegations against Doe,

UTH’s Office of Admissions and Student Affairs referred Doe to UTH’s Student

Evaluations and Promotions Committee (“SEPC”). (Dkt. 13-1 at p. 239). The SEPC

examined whether Doe’s behavior toward Cai constituted a “breach of professional

conduct” and whether Doe had unduly failed to sit for a required professional licensing

examination while on leave from his medical studies at UTH. (Dkt. 13-1 at pp. 239, 242).

To aid in its determination, the SEPC required Doe to be evaluated by a psychiatrist. (Dkt.

13-1 at pp. 243–44). In March of 2020, the SEPC decided to allow Doe to resume his

medical education at UTH, as long as he continued seeing the psychiatrist weekly for a

year and took the required licensing examination before July of 2020. (Dkt. 13-1 at p. 247).

Doe was also allowed to return from his paid leave and begin working again at

MDA, but his return to the DePinho lab was made subject to a management plan because

Reed found sufficient evidence to substantiate a violation of Principle Nine of MDA’s

Code of Conduct. (Dkt. 13-1 at pp. 200–01). As discussed above, the conduct found by

Reed to be potentially violative of Principle Nine revolved around Cai’s allegations that

Doe continued to contact her after she told him to leave her alone. (Dkt. 13-1 at p. 193). In

line with Reed’s findings, the management plan barred Doe from using research areas and

equipment when Cai was using them. (Dkt. 13-1 at p. 200). The management plan also

stated that Doe was “not permitted to be in the workplace during off work hours when Ms.

Cai [wa]s present[,]” with off-work hours defined as “hours outside of the typical workday,

which is 8am to 6pm Monday through Friday[.]” (Dkt. 13-1 at p. 200). The management

plan further prohibited Doe from working in the lab under any circumstances between the

hours of 7:00 p.m. and midnight on Mondays, Wednesdays, and Fridays; he was allowed

to work in the lab during those hours on Tuesdays, Thursdays, and Saturdays. (Dkt. 13-1

at p. 200).

Doe refused to agree to the management plan and, as a result, was not allowed to

return to the DePinho lab. (Dkt. 13 at p. 55; Dkt. 13-1 at p. 287). Doe ended up working in

a different laboratory engaged in different research. (Dkt. 13-1 at p. 287).

—Doe’s EEOC charge

Doe filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on June 3, 2021, alleging that MDA discriminated against him

based on sex, national origin, and perceived disability. (Dkt. 13-1 at p. 281). Doe stated in

his charge that he was first notified that he would not be allowed to return to the DePinho

lab on August 10, 2020. (Dkt. 13-1 at p. 287). Doe received a right-to-sue letter from the

EEOC on September 24, 2021. (Dkt. 13-1 at p. 289).

—This lawsuit

Doe filed this lawsuit in Texas state court on February 28, 2021. (Dkt. 1-2 at p. 1).

The defendants removed this case to this Court, and Doe has filed two amended complaints

and a more definite statement. (Dkt. 9; Dkt. 13; Dkt. 19). The defendants have moved to

dismiss Doe’s claims under Federal Rule of Civil Procedure 12(b)(6).

RULE 12(b)(6)

Rule 8 of the Federal Rules of Civil Procedure requires a pleading 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). A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests a

pleading’s compliance with this requirement and is “appropriate when a defendant attacks

the complaint because it fails to state a legally cognizable claim.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001). A complaint can be dismissed under Rule

12(b)(6) if its well-pleaded factual allegations, when taken as true and viewed in the light

most favorable to the plaintiff, do not state a claim that is plausible on its face. Amacker v.

Renaissance Asset Mgmt., LLC, 657 F.3d 252, 254 (5th Cir. 2011); Lone Star Fund V

(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). As the Fifth Circuit

has further clarified:

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. This includes the basic requirement that the

facts plausibly establish each required element for each legal claim.

However, a complaint is insufficient if it offers only labels and conclusions,

or a formulaic recitation of the elements of a cause of action.

Coleman v. Sweetin, 745 F.3d 756, 763–64 (5th Cir. 2014) (quotation marks

and citations omitted).

When considering a motion to dismiss under Rule 12(b)(6), the Court’s review is

limited to the complaint; any documents attached to the complaint; any documents attached

to the motion to dismiss that are central to the claim and referenced by the complaint; and

matters subject to judicial notice under Federal Rule of Evidence 201. Allen v. Vertafore,

Inc., 28 F.4th 613, 616 (5th Cir. 2022); George v. SI Group, Inc., 36 F.4th 611, 619 (5th

Cir. 2022). If the plaintiff’s allegations are contradicted by facts disclosed by a document

attached to the complaint or by facts disclosed by a document attached to the motion to

dismiss that is central to the claim and referenced by the complaint, then the plaintiff’s

contradicted allegations are not accepted as true. Carter v. Target Corp., 541 Fed. App’x

413, 417 (5th Cir. 2013) (refusing to accept as true factual allegations that were

contradicted by the plaintiff’s EEOC charging documents, which the defendant had

attached to its motion to dismiss) (“These issues are central to Carter’s pleadings, and her

failure to include them does not allow her complaint to bypass Target’s motion to dismiss

unexamined. We will review Target’s motion to dismiss with the benefit of Carter’s EEOC

and LCHR charges. . . . Because Charge 23 does not exist, we need not accept as true

Carter’s assertions that she filed and received her right-to-sue notice for Charge 23.”)

(citation omitted).

Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely

granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).

DOE’S CLAIMS AGAINST THE INSTITUTIONAL DEFENDANTS

Doe’s live pleading brings the following causes of action against MDA: (1)

employment discrimination (based on sex, national origin, and perceived disability) and

retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the

Texas Commission on Human Rights Act (“TCHRA”); (2) violation of Title IX of the

Education Amendments of 1972 (“Title IX”); and (3) violation of the Takings Clause of

Article I, § 17 of the Texas Constitution (“the Takings Clause”). (Dkt. 19 at pp. 1–2, 6).

Doe’s live pleading brings the following causes of action against UTH: (1) violation of

Title IX; and (2) violation of the Takings Clause. (Dkt. 19 at p. 6).

Though this case presents a close call, the Court concludes that Doe has pled

sufficient facts to proceed on his claims against MDA and UTH, with the exception that

some of Doe’s claims under Title VII and the TCHRA, as explained below, are time-barred.

As to the claims that are moving forward, MDA and UTH may reurge their arguments for

dismissal in a motion for summary judgment.

—Doe failed to exhaust his administrative remedies on many of his claims against

MDA.

MDA contends that Doe failed to exhaust his administrative remedies regarding any

claim brought against it under Title VII that accrued before August 7, 2020 and any claim

brought against it under the TCHRA that accrued before December 5, 2020.4 (Dkt. 38 at p.

11). The Court agrees.

In Texas, which has a state fair employment agency (the Texas Workforce

Commission—“TWC”) that has a work-sharing agreement with the EEOC, a Title VII

plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged

discriminatory act. Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1846 (2019). “The

time period generally begins to run when the employee receives notice of the allegedly

discriminatory decision, not when the employment actually ceases.” Conaway v. Control

Data Corp., 955 F.2d 358, 362 (5th Cir. 1992). Failure to file a charge with the EEOC and

exhaust administrative remedies before filing a Title VII action will result in dismissal.

Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996). The TCHRA also

requires a plaintiff to exhaust administrative remedies, and the relevant time period is

shorter: 180 days rather than 300. Tex. Lab. Code § 21.202(a); see also Hinkley v. Envoy

Air, Inc., 968 F.3d 544, 552–53 (5th Cir. 2020). Filing a charge with the EEOC satisfies

4 MDA also argues that Doe’s TCHRA claims against it are barred, irrespective of when they

accrued, by sovereign immunity. (Dkt. 38 at p. 10). On this point, the Court disagrees with MDA.

MDA “do[es] not enjoy ‘immunity from liability’ because the TCHRA waived it. And [MDA] no

longer enjoy[s] ‘immunity from suit’ because [MDA] waived it by removal.” Zeng v. Texas Tech

University Health Science Center at El Paso, 836 Fed. App’x 203, 207–08 (5th Cir. 2020) (citation

omitted).

the complaint-filing requirement for the TCHRA, but the 180-day time limit under the

TCHRA still applies. Griffin v. City of Dallas, 26 F.3d 610, 612–13 (5th Cir. 1994); see

also Adams v. DaimlerChrysler Services NA LLC, 252 Fed. App’x 681, 683 (5th Cir. 2007)

(affirming district court’s dismissal of TCHRA claims as time-barred when those claims

accrued more than 180 days before the plaintiff filed her EEOC charge).

If the plaintiff’s failure to exhaust administrative remedies is established by the

pleadings and the other properly considered documents, then dismissal under Rule 12(b)(6)

is appropriate. Carter, 541 Fed. App’x at 417; see also Clark v. Amoco Production Co.,

794 F.2d 967, 970 (5th Cir. 1986) (“[A] claim may also be dismissed if a successful

affirmative defense appears clearly on the face of the pleadings.”). Doe has attached his

EEOC charge to his live complaint; he filed that charge on June 3, 2021. (Dkt. 13-1 at p.

281). Accordingly, Doe has failed to exhaust his administrative remedies regarding any

claim brought against MDA under Title VII that accrued before August 7, 2020 (300 days

before June 3, 2021) and any claim brought against MDA under the TCHRA that accrued

before December 5, 2020 (180 days before June 3, 2021). Those claims must be dismissed

as time-barred.

—The continuing violation doctrine does not apply.

Doe contends that the continuing violation doctrine saves his claims that accrued

outside of the Title VII and TCHRA time limits. (Dkt. 32 at pp. 10–12). The Court

disagrees.

Under the continuing violation doctrine, “a plaintiff is relieved of establishing that

all of the alleged discriminatory conduct occurred within the actionable period, if the

plaintiff can show a series of related acts, one or more of which falls within the limitations

period.” Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). However, when

discussing the continuing violation doctrine in the context of employment discrimination

law, the Supreme Court has drawn a “direct contrast” between, on the one hand, “discrete

acts” that are “easy to identify” such as “termination, failure to promote, denial of transfer,

or refusal to hire” and, on the other hand, “[h]ostile environment claims” that “involve[]

repeated conduct” and are “based on the cumulative effect of individual acts” that “may

not be actionable on [their] own[,]” such as “racial jokes, . . . racially derogatory acts, . . .

negative comments regarding the capacity of [people of a certain race] to be supervisors,

and [the use of] racial epithets.” National Railroad Passenger Corp. v. Morgan, 536 U.S.

101, 114–15, 120 (2002). Discrete acts do not implicate the continuing violation doctrine;

they “are not actionable if time barred, even when they are related to acts alleged in timely

filed charges.” Id. at 113. Moreover, “discrete acts that fall within the statutory time period

do not make timely acts that fall outside the time period.” Id. at 112. The Texas Supreme

Court interprets the TCHRA in line with the Supreme Court’s interpretation of Title VII in

Morgan. See Prairie View A&M University v. Chatha, 381 S.W.3d 500, 505–06 & n.8

(Tex. 2012).

Hostile work environment claims that implicate the continuing violation doctrine

involve, as Justice O’Connor aptly phrased it, “a general atmosphere of discrimination not

completely reducible to particular discriminatory acts[.]” Morgan, 536 U.S. at 124

(O’Connor, J., concurring and dissenting); see also Igwe v. Menil Foundation Inc., No.

4:17-CV-3689, 2020 WL 7024374, at *3–4 (S.D. Tex. Nov. 30, 2020) (“[A] continuing

violation is unlawful only by reference to a pattern of behavior. . . . [M]inor insults and the

imposition of workplace inconveniences are only actionable when they occur repeatedly

over a prolonged period of time.”). Such a claim is not pled here. Doe complains of

particular, discrete allegedly discriminatory acts, such as MDA’s placing him on paid

investigative leave and refusing to allow him to return to the DePinho lab without

submitting to a management plan. (Dkt. 32 at p. 11). Moreover, Doe only points to one

allegedly discriminatory act that took place after August 7, 2020: the August 10, 2020

notification that he would not be allowed to return to the DePinho lab, which Doe

characterizes as a “transfer or reassignment [that was] the equivalent of a demotion[.]”

(Dkt. 32 at p. 9). This alleged demotion was a single, easily identifiable act that took place

on an ascertainable date, and as such it was a discrete act that does not implicate the

continuing violation doctrine. Morgan, 536 U.S. at 110 (“A discrete retaliatory or

discriminatory act ‘occurred’ on the day that it ‘happened.’”); see also, e.g., Baker v. FedEx

Ground Package System Inc., 278 Fed. App’x 322, 326 (5th Cir. 2008) (holding that a

transfer to a different shift was a discrete act under Morgan); Miller v. New Hampshire

Department of Corrections, 296 F.3d 18, 22 (1st Cir. 2002) (holding that a transfer to a

different unit was a discrete act under Morgan). Accordingly, any claim brought against

MDA under Title VII that accrued before August 7, 2020 (300 days before June 3, 2021)

and any claim brought against MDA under the TCHRA that accrued before December 5,

2020 (180 days before June 3, 2021) must be dismissed as time-barred. Morgan, 536 U.S.

at 112 (“[D]iscrete acts that fall within the statutory time period do not make timely acts

that fall outside the time period.”).

The Institutional Defendants’ motion to dismiss is granted as to any claim brought

against MDA under Title VII that accrued before August 7, 2020 (300 days before June 3,

2021) and any claim brought against MDA under the TCHRA that accrued before

December 5, 2020 (180 days before June 3, 2021). The motion is otherwise denied without

prejudice to being reasserted as a motion for summary judgment.

DOE’S CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

Doe’s live pleading brings several claims against each of the Individual Defendants.

Those claims arise under the Texas and United States Constitutions and essentially fall into

three groups: (1) due process violations; (2) “false arrest, and/or . . . malicious criminal

prosecution[;]” and (3) equal protection violations. (Dkt. 19 at pp. 2–5). Doe also alleges

that the Individual Defendants conspired to violate his rights under the United States

Constitution. (Dkt. 19 at pp. 7–8). Doe seeks “injunctive, declaratory and equitable relief”

for the alleged Constitutional violations. (Dkt. 19 at pp. 2–5, 7–8). He seeks money

damages under 42 U.S.C. § 1983 (“Section 1983”) for violations of the United States

Constitution but “is not seeking any monetary relief under the Texas Constitution.” (Dkt.

19 at pp. 2–5, 7–8). The Individual Defendants pled the defense of qualified immunity in

their state-court answer and have raised it in their motion to dismiss. (Dkt. 1-5 at p. 3; Dkt.

31 at p. 15).

The Court concludes that the Individual Defendants are entitled to qualified

immunity.5 All claims for monetary damages brought under Section 1983 against the

5 The Individual Defendants are not, however, entitled to Eleventh Amendment immunity on the

claims against them in their official capacities; Eleventh Amendment immunity was waived when

Individual Defendants in their individual capacities, including the claim that the Individual

Defendants conspired to violate Doe’s rights under the United States Constitution, are

dismissed. As to the other claims against them, the Individual Defendants may reurge their

arguments for dismissal in a motion for summary judgment. See Singleton v. Cannizzaro,

956 F.3d 773, 778 n.3 (5th Cir. 2020) (noting that qualified immunity “protect[s] only

individuals from claims for damages [and does] not bar official-capacity claims or claims

for injunctive relief”) (emphasis in Singleton).

—Qualified immunity

“The doctrine of qualified immunity protects government officials from civil

damages liability when their actions could reasonably have been believed to be legal.”

Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011). When a defendant asserts a

qualified immunity defense in a motion to dismiss, the district court must “carefully

scrutinize the complaint . . . because qualified immunity means immunity from having to

stand trial, not simply immunity from monetary liability.” Kelson v. Clark, 1 F.4th 411,

416 (5th Cir. 2021) (quotation marks omitted).

Defendants removed this case to federal court. Meyers ex rel. Benzing v. Texas, 410 F.3d 236,

255–56 (5th Cir. 2005) (“Because Texas has waived its immunity from suit in federal court in this

case it is not necessary for the plaintiffs to invoke the Ex parte Young doctrine in order to prosecute

their action against the defendants.”). At this time, the Individual Defendants are also not entitled

to official immunity under Texas law, which they did not specifically plead in their state-court

answers. “[O]fficial immunity is an affirmative defense that must be pled and proved by the party

asserting it.” Brown & Gay Engineering, Inc. v. Olivares, 461 S.W.3d 117, 128 (Tex. 2015). The

burden is on the defendant to establish all elements of the defense, and it “is somewhat less likely

to be resolved at the summary judgment stage than is the federal [qualified immunity] test.” City

of Lancaster v. Chambers, 883 S.W.2d 650, 653–57 (Tex. 1994).

The burden is on the plaintiff to demonstrate the inapplicability of the qualified

immunity defense. Id. A plaintiff seeking to overcome qualified immunity “must plead

specific facts that both allow the court to draw the reasonable inference that the defendant

is liable for the harm he has alleged and that defeat a qualified immunity defense with equal

specificity.” Id. The plaintiff “must show: (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Morgan, 659 F.3d at 371 (quotation marks omitted). Courts have

discretion to decide which prong of the qualified immunity analysis to address first.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

When attempting to show that a right was clearly established at the time of the

challenged conduct, “[i]t is the plaintiff’s burden to find a case in his favor that does not

define the law at a high level of generality.” Vann v. City of Southaven, Mississippi, 884

F.3d 307, 310 (5th Cir. 2018) (quotation marks omitted) (“Plaintiff . . . cited nary a pre-

existing or precedential case. That alone dooms his case here.”). The inquiry “must be

undertaken in light of the specific context of the particular case, not as a broad general

proposition.” Baldwin v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020) (brackets and ellipsis

omitted). “Although qualified immunity does not require a case in point, existing precedent

must have placed the statutory or constitutional question beyond debate[,]” such that “every

reasonable official would understand that what she is doing violates that right.” Id.

(brackets and quotation marks omitted).

—Doe has not met his burden to demonstrate the inapplicability of the qualified

immunity defense.

The Individual Defendants are entitled to qualified immunity. Doe has not shown

that it is “beyond debate” that the Individual Defendants violated his rights under the

United States Constitution.

i. Doe’s arrest

To prevail on a Section 1983 false arrest/false imprisonment claim, Doe must show

that there was no probable cause to arrest him. Haggerty v. Texas Southern University, 391

F.3d 653, 655 (5th Cir. 2004). The defendant in a Section 1983 false arrest/false

imprisonment claim “is entitled to qualified immunity if a reasonable officer in [the

defendant’s] position could have believed that, in light of the totality of the facts and

circumstances of which [the defendant] was aware, there was a fair probability that [the

plaintiff] had committed or was committing an offense.” Id. “Even law enforcement

officials who reasonably but mistakenly conclude that probable cause is present are entitled

to immunity.” Id. (emphasis in Haggerty). Under the electronic-communications-

harassment statute, “[a] person commits an offense if, with intent to harass, annoy, alarm,

abuse, torment, or embarrass another, the person . . . sends repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment,

embarrass, or offend another[.]” Tex. Penal Code § 42.07(a)(7).

Doe contends that his arrest and prosecution for violating the electronic-

communications-harassment statute lacked “probable cause, credible evidence, or legal

justification[.]” (Dkt. 37 at p. 32). However, even when one accounts for the possibility of

inexact translation of the emails between Doe and Cai, there was ample reason to believe

that Doe had violated the electronic-communications-harassment statute. Doe’s own

attachments to his complaint show that he repeatedly emailed Cai after she told him to

leave her alone. (Dkt. 13-1 at pp. 179–81). After Cai told him in emails that his

“harassment” was “caus[ing] fear to [her] and negatively impact[ing her,]” Doe continued

to email her, at one point writing the following passage:

If you have to hate me, then let it be. In order to help you hate me more, I am

willing to make sacrifices and do a lot of things that make you hate and

dislike me.

Dkt. 13-1 at pp. 179–81.

Moreover, although the criminal charge against Doe was dismissed, it was

dismissed on the basis of a facial Constitutional challenge to the statute, not on the basis

that Doe did not engage in the criminalized conduct. The state trial judge expressly “did

not consider the factual merits” of the case against Doe. (Dkt. 13-1 at p. 204). And even

now, the dismissal is not final. See Ex parte Chen, 2022 WL 17171098; see also United

States Supreme Court docket number 22-497. Doe points to no case in which the qualified

immunity defense was defeated under such circumstances.

ii. Due process

Similarly, Doe cites no analogous due process cases. That failure is fatal to his

attempt to overcome qualified immunity, as “the very nature of due process negates any

concept of inflexible procedures universally applicable to every imaginable situation.”

Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 86 (1978) (brackets

omitted).

Procedural due process in the context of college or graduate school discipline

requires only an “informal give-and-take” between the student and the administrative body

dismissing him that would give the student “the opportunity to characterize his conduct

and put it in what he deems the proper context.” Goss v. Lopez, 419 U.S. 565, 584 (1975).

Decisions based on academic rather than disciplinary grounds are subject to even “less

stringent procedural requirements”—the decisionmaker simply must “fully inform [the

student] of the faculty’s dissatisfaction with her [academic] progress” and make a “careful

and deliberate” decision to dismiss the student. Horowitz, 435 U.S. at 84–86.

As for the employment context, “[i]t is well-settled that Texas is an at-will

employment state and that, absent an express agreement to the contrary, employment may

be terminated at any time by either party with or without cause.” McDonald v. City of

Corinth, Texas, 102 F.3d 152, 156 (5th Cir. 1996). An at-will employee is not entitled to

procedural due process in connection with his termination. Id. at 155. To state a due process

claim, then, “an employee must show that the at-will presumption has been altered.” Zeng

v. Texas Tech University Health Science Center at El Paso, 836 Fed. App’x 203, 211 (5th

Cir. 2020). There are two ways in which the at-will relationship may be altered: (1) by

contract; and (2) by rules or policies that “specifically and expressly curtail[] the

employer’s right to terminate the employee.” Muncy v. City of Dallas, Texas, 335 F.3d 394,

398 (5th Cir. 2003); McDonald, 102 F.3d at 156. “Generally, courts find that statements

about working conditions, grievance procedures or termination rights are insufficient to

change an employee’s at-will status.” McDonald, 102 F.3d at 156; see also Glagola v.

North Texas Municipal Water District, 705 F. Supp. 1220, 1223 (E.D. Tex. 1989)

(collecting cases) (“The cases discussed above exhibit a general rule in Texas that

employee handbooks or personnel manuals unilaterally issued by an employer, standing

alone, may not expressly or impliedly limit an employer’s ability to terminate an employee

at will.”).

Doe was not suspended from UTH, much less expelled, as a result of the

investigations. He was not fired from MDA, and his investigative leave from MDA was

paid. Although he alleges that he was forced to transfer from the DePinho lab, the transfer

resulted from his refusal to submit to a management plan designed to separate him from

Cai while the two were working at the DePinho lab. On their own, the emails quoted at

length above provided a reasonable basis on which MDA officials could have concluded

that separating Doe from Cai was advisable. Doe does not specifically describe or attach

any express agreement by which his at-will employment status was changed such that the

actions taken against him by MDA (or by any individual defendant) effectuated the

deprivation of a protected property interest. Moreover, it is hard to square Doe’s

characterization of the joint MDA/UTH investigation as a “kangaroo court” with the fact

that many of the investigators’ findings were favorable to him, in the sense that the

investigators deemed Cai’s allegations of sexual harassment unsubstantiated. Again, Doe

points to no case in which the qualified immunity defense was defeated under sufficiently

similar circumstances.

iii. Equal protection

Doe has also failed to overcome qualified immunity on his claims under the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.

To establish a claim under the Equal Protection Clause, Doe “must allege and prove

that he received treatment different from that received by similarly situated individuals and

that the unequal treatment stemmed from a discriminatory intent.” Priester v. Lowndes

County, 354 F.3d 414, 424 (5th Cir. 2004). “Being similarly situated is key. Because the

clause’s protection reaches only dissimilar treatment among similar people, if the

challenged government action does not appear to classify or distinguish between two or

more relevant persons or groups, then the action does not deny equal protection of the

laws.” Hines v. Quillivan, 982 F.3d 266, 272–73 (5th Cir. 2020) (quotation marks omitted).

To determine whether persons or groups are similarly situated, the Court must “inquire as

to whether they are in all relevant respects alike.” Texas Entertainment Association, Inc. v.

Hegar, 10 F.4th 495, 513 (5th Cir. 2021) (quotation marks omitted).

The only comparator to whom Doe points to support his equal protection claim is

Cai. He contends that “he received different treatment from that received by Cai, a

similarly-situated female co-worker and co-student, and that the unequal treatment

stemmed from discriminatory intent.” (Dkt. 37 at p. 20). Doe alleges that his rights under

the Equal Protection Clause were violated because his complaint against Cai did not trigger

a “legitimate and meaningful investigation . . . against Cai for bringing false allegations[.]”

(Dkt. 13 at p. 97).

Doe does not plead any facts showing that Cai, or any other possible comparator,

was treated differently from Doe despite being in all relevant respects similarly situated to

Doe. Doe does not highlight relevant points of comparison that make Cai a suitable

comparator on which an equal protection claim can be based. Cai and Doe made very

different factual allegations against each other in their complaints; Doe’s complaint was

made over a year later than Cai’s; and Cai’s claim that Doe refused to leave her alone when

she asked him to was strongly corroborated by Doe’s own emails to her. In any event, as

with his other claims under Section 1983, Doe points to no case in which the qualified

immunity defense was defeated under sufficiently similar circumstances.

iv. Conspiracy

Doe claims that the Individual Defendants conspired to violate his rights under the

United States Constitution. (Dkt. 13 at p. 109). This claim fails because Doe has failed to

defeat the Individual Defendants’ qualified immunity defenses.

“To state a claim for conspiracy under § 1983, a plaintiff must allege the existence

of (1) an agreement to do an illegal act and (2) an actual constitutional deprivation.”

Whisenant v. City of Haltom City, 106 Fed. App’x 915, 917 (5th Cir. 2004). If the members

of the alleged conspiracy are entitled to qualified immunity, then “the conspiracy claim is

not actionable.” Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995). All of the Individual

Defendants are entitled to qualified immunity, so the Court will dismiss the Section 1983

conspiracy claim against them.

CONCLUSION

The Institutional Defendants’ motion to dismiss (Dkt. 30) is GRANTED IN PART

AND DENIED IN PART. The Institutional Defendants’ motion to dismiss is granted as

to any claim brought against MDA under Title VII that accrued before August 7, 2020 (300

days before June 3, 2021) and any claim brought against MDA under the TCHRA that

accrued before December 5, 2020 (180 days before June 3, 2021). The motion is otherwise

denied without prejudice to being reasserted as a motion for summary judgment.

The Individual Defendants’ motion (Dkt. 31) is also GRANTED IN PART AND

DENIED IN PART. The Court concludes that the Individual Defendants are entitled to

qualified immunity. All claims for monetary damages brought under 42 U.S.C. § 1983

against the Individual Defendants in their individual capacities, including the claim that the

Individual Defendants conspired to violate Doe’s rights under the United States

Constitution, are dismissed. As to the other claims against them, the Individual Defendants

may reurge their arguments for dismissal in a motion for summary judgment.

SIGNED at Houston, Texas, on January 30 , 2023.

Heorae C

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

26 / 26