Petition for Writ of Certiorari — Cara Wessels Wells, Petitioner v. Texas Tech University, et al.

Supreme Court briefJun 2, 2025

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No. _____________

SUPREME COURT OF THE UNITED STATES

Cara Wessels Wells

Petitioner,

vs.

Texas Tech University, Samuel Prien, and Lindsay

Penrose

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

William A. Brewer, III

Counsel of Record

BREWER, ATTORNEYS & COUNSELORS

750 Lexington Avenue, 14th Floor

New York, NY 10022

Tel. (212) 284-8451

Email: wab@brewerattorneys.com

App. 1

United States Court of Appeals

for the Fifth Circuit

No. 24-10518

[Date Filed March 3, 2025]

Cara Wessels Wells

Plaintiff—Appellant,

versus

Texas Tech University; Samuel Prien; Lindsay

Penrose,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:23-CV-60

Before King, Ho, and Ramirez, Circuit Judges. Per

Curiam:*

Cara Wells, an unpaid mentor who was removed from

a university- sponsored program, appeals the

dismissal of her lawsuit against Texas Tech

University (TTU) and two professors. We AFFIRM.

* This opinion is not designated for publication. See 5th Cir. R.

47.5.

App. 2

After Wells enrolled in TTU in 2009, she

became interested in animal science research and

began working as a research assistant for Samuel

Prien, a professor in the Department of Animal and

Food Sciences. Wells attended various conferences

with Prien and another professor who worked in his

lab, Lindsay Penrose. She contends Prien forced her

to share a hotel room with him and Penrose during

the conferences, and that the professors consistently

harassed and bullied her. After she graduated, Wells

continued working in Prien’s lab as a Ph.D. student.

In 2014, TTU began filing applications to

patent ideas and methods developed by Wells and the

professors, including her “original concept for using

embryo buoyancy to determine embryo sex.” Even

though the patent application initially listed Wells,

Prien, and Penrose as co-inventors, TTU removed

Wells as an inventor before the patent was awarded.

Wells’s portion of royalties for another patent was

disproportionately lower than that of the professors,

and she has not received royalties from TTU for

several other patents.

Wells graduated from the doctoral program in

App. 3

2017, but she struggled to find work. Prien, whom she

had listed as a reference, informed her that he had

“told [potential

employers] that he could not

recommend her for the job,” allegedly “so that she

would have no choice but to return to an assistant’s

position in his lab.”

Wells eventually applied for and was accepted

to TTU’s Accelerator Hub program, a year-long

initiative that offers funding, training, and business

support to startups, and she added Prien to her team

of mentors in the program. Wells and her company,

Embroytics,

partnered

with

another

company,

Simplot, to conduct research, for which they entered

into a ten- year non-disclosure agreement. Prien, like

all other mentors in the Hub program, also entered

into a non-disclosure agreement.

After Embryotics dissolved, Wells founded

EmGenisys—a

noninvasive

company

embryo

focused

assessment

digital,

platform

for

livestock, and she again applied and was accepted into

the Hub program. A precision livestock company

called Vytelle approached EmGenisys in 2019, to

collaborate on a “project that would build upon the

technology” that Embryotics had been working on

App. 4

before its dissolution. Because that technology had

been developed at TTU, Wells needed to secure a

license from the university, and Wells had repeatedly

sought assurance from TTU that she would be able to

license the technology but received none. TTU

ultimately licensed the technology directly to Vytelle

and arranged for EmGenisys and Wells to work for

Vytelle, which “robbed” her of a “lucrative financial

opportunity.” Prien and Penrose allegedly drove this

arrangement.

EmGenisys remained in the Hub program, and

Wells continued to include Prien in her research. He

asked to view data from a “sex selection study” she

had performed for Simplot and then used it as part of

an abstract for a presentation at a conference. Wells

asked him to withdraw his submission because she

worried that the presentation would harm her

companies,

breach

Embryotic’s

non-disclosure

agreement with Simplot, and violate Prien’s nondisclosure agreement for the Hub program, but he

refused. After the conference removed the abstract

based

Wells’s

claim

“misconduct

and

misappropriation,” Prien allegedly told another

graduate student that he was going to “destroy” her.

App. 5

Wells subsequently discussed the professors’

alleged misconduct, including being forced to share a

room

with

them,

with

TTU

student

body

representative, the managing director of the TTU

Innovation Hub, and another mentor in the Hub

program. In the fall of 2020, she also raised the issue

with the Vice Provost for Graduate and Postdoctoral

Affairs and Dean of the Graduate School during a

virtual lunch discussion about how TTU could better

serve its students. Wells followed up in writing, but

the dean did not respond for more than a year.

In May 2022, Wells returned to the Hub

program as a mentor. The selection process for

mentors included interviews, background checks, and

onboarding procedures. Those who are selected were

added to TTU’s website. Wells alleges that it was

common practice for Hub program mentors to turn

their roles into compensated ones by being hired in

full-time roles at TTU or partnering with companies

accepted into the Hub program. About a month later,

the Office of the General Counsel removed Wells from

her mentoring position. TTU removed her from its

website and eliminated her from its publications.

Wells claims that Hub program mentors were

App. 6

instructed to terminate formal relationships with her

and forego future programming with her. “No

legitimate reason was given for removing [her].”

On November 11, 2022, Wells filed a charge

with the Equal Employment Opportunity Commission

(EEOC)

against

TTU

alleging

discrimination,

harassment, and retaliation based on sex. She alleged

that

Prien

subjected

discrimination

from

her

2012,

harassment

when

she

was

and

undergraduate research assistant, through June

2022, when she was removed as a Hub mentor, and

that TTU ignored and disregarded her allegations

about his conduct. She also claimed that Prien and

TTU retaliated against her for complaining about

sharing a hotel room with him during conference trips

when TTU eliminated her inventor listings from its

publications, removed her as a mentor, and instructed

a “third party” to not work with her. The EEOC issued

a Right to Sue letter on December 22, 2022.

On March 22, 2023, Wells sued TTU, Prien, and

Penrose, asserting claims under Title VII of the Civil

Rights Act of 1964, Title IX of the Education Act of

App. 7

Education Amendment of 1972, and state law. 1

Wells appeals the dismissal of her claims as

well as the denial of her motion for leave to amend her

complaint a second time.

We review the grant of a motion to dismiss

under Rule 12(b)(6) de novo. Lindsay v. United States,

4 F.4th 292, 294 (5th Cir. 2021). We “accept[] all wellpleaded facts as true and view[] those facts in the light

most favorable to the plaintiffs.” Id. (quoting

Anderson v. Valdez, 845 F.3d 580, 589 (5th Cir. 2016)).

To survive a motion to dismiss, a complaint must

contain sufficient facts to state a claim for relief that

is plausible on its face. In re Ondova Ltd. Co., 914 F.3d

990, 992–93 (5th Cir. 2019) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “And while we

must accept a plaintiff’s factual allegations as true, we

are not bound to accept as true ‘a legal conclusion

couched as a factual allegation.’” Id. at 993 (quoting

1 Wells also asserted claims against both professors for Equal

Protection violations under 42 U.S.C. § 1983, Title IX

discrimination, correction of inventorship, patent invalidity,

intentional infliction of emotional distress, and fraudulent

concealment, and a claim against Prien for defamation per se. On

appeal, she does not challenge the dismissal of those claims.

App. 8

Papasan v. Allain, 478 U.S. 265, 286 (1986)).

III

Wells argues that the district court erred in

dismissing her Title VII claims. 2

Title VII makes it illegal for an employer “to fail or

refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

. . . sex.” 42 U.S.C. § 2000e-2. “[A] discriminatory and

hostile work environment—when sufficiently severe

or pervasive—can rise to the level of altering the

terms, conditions, or privileges of employment for

Title VII purposes.” Hamilton v. Dallas County, 79

F.4th 494, 503 (5th Cir. 2023) (en banc) (citing cases);

see also Dediol v. Best Chevrolet, Inc., 655 F.3d 435,

440 (5th Cir. 2011) (“Title VII has long been a vehicle

by which employees may remedy discrimination they

2 The amended complaint alleges three separate Title VII claims

against TTU, which the district court characterized as sexual

harassment, hostile work environment, and retaliation claims.

Although sexual harassment and hostile work environment may

constitute distinct claims, Hague v. Univ. of Texas Health Sci. Ctr.

at San Antonio, 560 F. App’x 328, 331 (5th Cir. 2014), the district

court considered them collectively. Neither party disputes this

characterization or consideration of the claims.

App. 9

believe creates a hostile work environment.”). This

includes sexual harassment that takes the form of a

hostile or abusive working environment. See Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

“Title VII also prevents retaliation by ‘forbid[ding]

employer actions that discriminate against an

employee . . . because he has opposed a practice that

Title VII forbids or has made a charge, testified,

assisted, or participated in a Title VII investigation,

proceeding, or hearing.’” Johnson v. Bd. of Supervisors

of Louisiana State Univ. & Agric. & Mech. Coll., 90

F.4th 449, 455 (5th Cir. 2024) (citations omitted); see

42 U.S.C. § 2000e–3(a).

“Before seeking relief in federal court, Title VII

plaintiffs

must

exhaust

their

administrative

remedies.” Stroy v. Gibson ex rel. Dep’t of Veteran

Affs., 896 F.3d 693, 698 (5th Cir. 2018) (citing Davis v.

Fort Bend County, 893 F.3d 300, 303 (5th Cir. 2018)).

Although administrative exhaustion under Title VII

is not “a jurisdictional requirement,” it is “a

precondition to filing suit, subject to waiver or

estoppel defenses.” Id. “Exhaustion occurs when the

plaintiff files a timely charge with the EEOC and

receives a statutory notice of right to sue.” Taylor v.

App. 10

Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.

2002). A Title VII plaintiff must ordinarily file a

charge of discrimination within 180 days from the

date of the unlawful employment practice. See 42

U.S.C. § 2000e–5(e)(1). “In a state that, like Texas,

provides a state or local administrative mechanism to

address complaints of employment discrimination, a

[T]itle

VII

plaintiff

must

file

charge

discrimination with the EEOC within 300 days after

learning of the conduct alleged.” Huckabay v. Moore,

142 F.3d 233, 238 (5th Cir. 1998) (citing id.). 3

Wells argues that the district court erred in

dismissing her sexual harassment and retaliation

claims as untimely based on its finding that she was

last employed by TTU in 2017, well over 300 days

before she filed her EEO charge in November 2022.

She claims she was employed by TTU as an unpaid

mentor in the Hub program in 2022.

We apply the “threshold-remuneration test” to

3 We have held that the 300–day filing period applies “whether

or not these other proceedings were timely instituted under state

or local law.” Urrutia v. Valero Energy Corp., 841 F.2d 123, 125

(5th Cir. 1988).

App. 11

decide whether an unpaid person is an “employee”

within the meaning of Title VII. Juino v. Livingston

Par. Fire Dist. No. 5, 717 F.3d 431, 439 (5th Cir. 2013).

Generally,

employee

must

receive

direct

remuneration (i.e., salary or wages) or significant

indirect benefits that are not incidental to the service

performed for the putative employer (i.e., job-related

benefits). Id. at 438–39. Without a financial benefit,

“no ‘plausible’ employment relationship of any sort

can be said to exist.” Id. at 439 (quoting O’Connor v.

Davis, 126 F.3d 112, 115–16 (2d. Cir. 1997)).

Here, Wells does not allege that TTU paid her

a salary or provided any other financial benefits

participating in the Hub program. See id. at 439.

Although she claims that she “underwent rigorous

interviews,

background

checks

and

onboarding

procedures” and was “added to the TTU website,” and

that it was “common practice” for Hub mentors to

transform their roles into full-time roles at TTU or

partnerships with Hub companies, these benefits are

“purely incidental to her volunteer service.” See Juino,

717 F.3d at 440 (holding that an unpaid firefighter

was not an employee under Title VII because the

benefits she received—a life insurance policy, a

App. 12

uniform and badge, and training—were “purely

incidental to her volunteer service”) (citation omitted);

see also Sacchi v. IHC Health Servs., Inc., 918 F.3d

1155, 1159 (10th Cir. 2019) (noting that “others . . .

obtain[ing] positions after unpaid internships does

not constitute a substantial or significant indirect

benefit”).

Because Wells was not an “employee” for

purposes of Title VII while acting as a mentor for the

Hub program in 2022, the district court did not err in

finding her Title VII claims untimely.

Wells contends that even if she was only employed

until 2017, her retaliation claims are not time-barred

because she engaged in protected activity during “fall

2020,” and her EEO charge alleged acts of retaliation

against her “occurring on January 15, 2022 or later.”

Although

former

employees

may

pursue

retaliation claims against former employers, this

principle is not designed to permit a perpetual cause

of action for any unfavorable action taken in the

future. Robinson v. Shell Oil Co., 519 U.S. 337, 339

(1997). It is instead designed to ensure that employees

who are discharged in retaliation for their complaints

App. 13

can bring claims even though they are no longer a

current employee. Id. “The ultimate determination in

an unlawful retaliation case is whether the conduct

protected by Title VII was a ‘but for’ cause of the

adverse employment decision.” Long v. Eastfield Coll.,

88 F.3d 300, 305 n.4 (5th Cir. 1996) (citing McDaniel

v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th

Cir. 1985)). A former employee fails to allege Title VII

retaliation when she is sufficiently removed from the

employment relationship because the connection

between the harm and the protected act becomes too

attenuated. Compare Robinson, 519 U.S. at 339

(finding actionable plaintiff’s claim that he received a

negative reference from his former employer shortly

after his termination and filing of an EEO charge),

with Allen v. Radio One of Tex. II, L.L.C., 515 F. App’x

295, 302 (5th Cir. 2013) (rejecting claim that nearly a

year after plaintiff engaged in protected activity and

18 months after she was fired, plaintiff’s former

employer refused to do business with her new

company).

Here, Wells alleged that she was removed from

the mentor program, deleted from TTU’s website, and

blacklisted from the TTU community in June 2022 in

App. 14

retaliation for reporting professors’ misconduct in the

fall of 2020. Even if her statements during the fall

2020 virtual lunch constitute protected activity,

retaliatory conduct that occurred in January 2022, or

later, is too attenuated from her last employment in

2017.

Wells also argues that the district court erred in

dismissing her Title IX claims as untimely and for

failure to state a claim.

Title IX provides that “[n]o person . . . shall, on

the basis of sex, be excluded from participation in, be

denied

the

benefits

of,

subjected

discrimination under any education program or

activity receiving Federal financial assistance.” 20

U.S.C. § 1681(a). It imposes liability only against an

institution—not school officials, professors, or other

individuals. Fitzgerald v. Barnstable Sch. Comm., 555

U.S. 246, 257 (2009).

Title IX is governed by state statutes of

limitations for personal injury actions. King-White v.

Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir.

2015). In Texas, the relevant limitations period is two

years. See Tex. Civ. Prac. & Rem. Code § 16.003; King-

App. 15

White, 803 F.3d at 761 (5th Cir. 2015) (applying Texas

law to Title IX claim). Generally, a Title IX claim

“accrues when the plaintiff knows or has reason to

know of the injury giving rise to the claim.” Sewell v.

Monroe City Sch. Bd., 974 F.3d 577, 583 (5th Cir.

2020).

Wells argues that her “many” claims outside the twoyear period are not time-barred based on the

“continuing violations” doctrine because “she only

later became aware of certain of the harmful

misconduct that occurred during and after her tenure

at TTU.”

Under the continuing violation doctrine, if at

least one action in a series of related misconduct falls

within the limitations period, all related actions will

be considered timely. Berry v. Bd. of Sup’rs of LSU,

715 F.2d 971, 979 (5th Cir. 1983). But a violation is

not continuing if there are intervening actions that

“sever the acts that preceded it from those subsequent

to it, precluding liability for preceding acts outside the

filing window.” Stewart v. Mississippi Transp. Com’n,

App. 16

586 F.3d 321, 328 (5th Cir. 2009). 4

Because Wells’s 2017 graduation from TTU and

the 2019 dissolution of her first company that had ties

with TTU are sufficient intervening actions, the

district court did not err in finding her pre-2019 Title

IX claims untimely.

Wells argues that she has alleged a plausible

claim for relief for her remaining claims.

To establish a Title IX claim for employee-onstudent harassment, a plaintiff must allege that (1) a

person authorized to address the harassment had

actual notice of the behavior; and (2) even with this

notice, the program’s response to the harassment

amounted

“deliberate

indifference.”

Doe

Edgewood Indep. Sch. Dist., 964 F.3d 351, 358–59 (5th

Cir. 2020). “The deliberate indifference standard is a

high one.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist.,

220 F.3d 380, 384 (5th Cir. 2000) (quoting Doe v.

4 The continuing violation doctrine is primarily associated with

Title VII harassment claims, and Title IX cases routinely rely on

Title VII caselaw. Sewell, 974 F.3d at 584 n.2; see also Papelino

v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d

Cir. 2011) (stating that Title IX is governed by Title VII

jurisprudence).

App. 17

Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir.

1998)).

Wells has not alleged sufficient facts to support

either of these two prongs. Her statements to the dean

focused on hotel accommodations and cost-sharing.

Edgewood Indep. Sch. Dist., 964 F.3d at 358–59. She

also did not allege facts to show the dean was a person

who could address the harassment. Id. Although

Wells argues that she did not need to provide notice

because her claims were being perpetuated by “high

ranking individuals,” notice is required unless an

official sex-based discrimination policy is alleged,

which it is not. Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 290 (1998). And Wells has alleged no

facts rising to the level of “deliberate indifference,”

which is a “high one” to meet. Dallas Indep. Sch. Dist.,

220 F.3d at 384.

The district court did not err in dismissing

Wells’s Title IX claims. 5

5 On appeal,

Wells argues that she pleaded sufficient

facts to support a claim for retaliation under Title IX based on

TTU’s failure to investigate her complaints about having to share

hotel rooms with her professors and subsequent adverse actions.

Wells did not expressly assert a Title IX retaliation claim in her

original or amended complaints or her response to TTU’s motion

to dismiss. Even if she “adequately pleaded each element of the

App. 18

Wells argues that the district court erred in

dismissing

her

state

law

claims

for

unjust

enrichment, breach of fiduciary duty, trade secret

misappropriation, and tortious interference with

contractual relations under the Texas Tort Claims Act

(“TTCA”) because the professors’ conduct was not

“within the scope of their employment.”6

“The

TTCA

bars

tort

claims

against

government employees when (1) the alleged tort

occurred ‘within the general scope of that employee’s

employment’ and (2) ‘it could have been brought under

[the TTCA] against the governmental unit.’” Espinal

v. City of Houston, 96 F.4th 741, 749 (5th Cir. 2024)

claim,” Barron v. United States, 111 F.4th 667, 673 (5th Cir.

2024), it is barred by the two-year statute of limitations. See

King-White, 803 F.3d at 759–60.

6 The professors moved to dismiss under Rules 12(b)(1) and

12(b)(6), but their motion did not identify the basis for dismissing

the state law claims under the TTCA. The district court’s opinion

does not mention Rule 12(b)(1) and appears to dismiss all claims

under Rule 12(b)(6). We have affirmed dismissals of state law

claims under the TTCA raised in motions to dismiss under both Rule

12(b)(1) and Rule 12(b)(6). See Espinal v. City of Houston, 96 F.4th 741,

749 (5th Cir. 2024) (affirming dismissal of state law claims barred by

TTCA for failure to state a claim under 12(b)(6)); Benfer v. City of

Baytown, 120 F.4th 1272, 1285 (5th Cir. 2024) (same); Smith v. Heap,

31 F.4th 905, 913 (5th Cir. 2022) (same); Huang v. Huang, 846 F.

App’x 224, 230 (5th Cir. 2021) (affirming dismissal of state law

claims barred by TTCA for lack of jurisdiction under 12(b)(1)).

App. 19

(quoting Tex. Civ. Prac. & Rem. Code § 101.106(f)).

“The TTCA defines the term ‘scope of employment’ as

‘the performance for a governmental unit of the duties

of an employee’s office or employment and includes

being in or about the performance of a task lawfully

assigned to an employee by competent authority.’”

Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014)

(quoting Tex. Civ. Prac. & Rem. Code § 101.001(5)). To

prevail on the scope-of-employment inquiry, a

defendant need only link one’s “job responsibilities to

the alleged torts.” Smith v. Heap, 31 F.4th 905, 913

(5th Cir. 2022) (citing Garza v. Harrison, 574 S.W.3d

389, 394 (Tex. 2019)) (cleaned up). The alleged

misconduct must have “nothing to do with the

employees’ duties.” Wilkerson, 878 F.3d at 160. This is

an objective analysis, see Laverie v. Wetherbe, 517

S.W.3d 748, 752–53 (Tex. 2017), meaning a plaintiff

cannot bypass the immunity issue by merely alleging

a defendant was acting outside the scope of his

authority. See Heap, 31 F.4th at 914.

Wells’s unjust enrichment and breach of

fiduciary duty claims arise from the various patents

filed by TTU. The professors’ conversations and

actions that allegedly caused her financial and

App. 20

reputational loss are linked to research conducted on

behalf of the university, a key job responsibility of the

professors. See Ho v. Univ. of Tex. at Arlington, 984

S.W.2d 672, 688–89 (Tex. App.—Amarillo 1998, pet.

denied) (finding professors had established their

immunity defense because they were acting within

the

scope

their

employment

“teaching,

evaluating, and researching”). 7 The patents were filed

by TTU, so any discussions or actions taken regarding

the

patents

concern

the

professors’

scope

employment, regardless of whether they continue to

receive royalties after they are no longer employed

with TTU. See Wilkerson, 878 F.3d at 160 (recognizing

that a connection between employee’s job duties and

alleged misconduct may exist “even if the employee

performs negligently or is motivated by ulterior

motives or personal animus”) (citation omitted).

Wells’s trade secret misappropriation and

tortious

interference

claims

concern

Prien’s

7 Although Ho concerned an official immunity defense, that

analysis is “nearly identical” to the “scope of employment”

analysis under the TTCA. Wilkerson, 878 F.3d at 160 n.14 (“The

‘scope of . . . authority’ under official immunity is nearly identical

with ‘scope of employment’ under the Texas Tort Claims Act.”)

(citations omitted).

App. 21

submission of data from the “sex selection study” she

performed for Simplot. She alleges that this conduct

is outside the scope of his authority as a TTU

professor and a Hub program mentor. Because he

gained access to the data through the mentorship

program, this conduct is sufficiently linked to his job

responsibilities. See Heap, 31 F.4th at 913.

Wells

argues

that

under

Texas

law,

“intentional torts ‘perpetrated by an employee’” are

not within the course and scope of an employee’s

authority or employment. Intentional torts generally

can be within the scope of one’s employment so long

as the act is not a deviation from one’s job duties. Fink

v. Anderson, 477 S.W.3d 460, 467–69 (Tex. App—

Houston [1st Dist.] 2015, no pet.) (rejecting the

argument that an intentional tort forecloses a finding

that an employee was acting within the scope of his

employment and citing examples under Texas law).

Because the professors were acting within the

scope of their employment at all relevant times, the

district did not err by dismissing Wells’s tort claims

for unjust enrichment, breach of fiduciary duty, trade

secret misappropriation, and tortious interference

App. 22

with contractual relations as barred by § 101.106(f). 8

Wells argues that the district court erred in

dismissing her trade secret misappropriation claim

against Prien because the data from the “sex selection

study” constituted a trade secret, she communicated

it to Prien under a non-disclosure agreement, and he

used it in violation of the agreement.

To state a claim under the Texas Uniform

Trade Secrets Act (“TUTSA”), 9 a plaintiff must allege

that “(1) a trade secret existed, (2) the trade secret was

acquired

through

breach

confidential

relationship or discovered by improper means, and (3)

the

defendant

used

the

trade

secret

without

authorization from the plaintiff.” CAE Integrated,

LLC v. Moov Techs., Inc., 44 F.4th 257, 262 (5th Cir.

2022) (emphasis omitted) (quoting GE Betz, Inc. v.

Moffitt-Johnston, 885 F.3d 318, 325 (5th Cir. 2018));

8 Because we affirm on this basis, we need not reach Wells’s

argument that her state law claims were improperly dismissed

under § 101.106(e). See Forgan v. Howard County, 494 F.3d 518,

521 n.3 (5th Cir. 2007).

9 Wells’s amended complaint does not indicate the basis for her

claim, but the district court considered it under the TUTSA

because it “displaces conflicting tort, restitutionary, and other law

of this state providing civil remedies for misappropriation of a trade

secret.”

App. 23

Tex. Civ. Prac. & Rem. Code § 134.002(3).

As to the first element, Wells alleges that the

“data from her research as part of Embryotics and

EmGenisys constituted a trade secret.” A “trade secret

is information which derives independent economic

value from being not generally known or readily

ascertainable

through

proper

means.”

CAE

Integrated, LLC, 44 F.4th at 262. Texas courts weigh

six factors to determine the existence of a trade secret:

(1) the extent to which the information is

known outside of the business; (2) the extent

to which it is known by employees and

others involved in the business; (3) the

extent of measures taken to guard the

secrecy of the information; (4) the value of

the information to the business and to its

competitors; (5) the amount of effort or

money

expended

developing

the

information; (6) the ease or difficulty with

which the information could be properly

acquired or duplicated by others.

GlobeRanger Corp. v. Software AG U.S. of Am., Inc.,

836 F.3d 477, 492 (5th Cir. 2016) (citing In re Union

Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex. 2009)).

App. 24

Wells has not alleged sufficient facts showing

that the “sex selection study” is a trade secret. Texas

law does not require a specific description of the trade

secret, but it requires more specificity than what

Wells alleges in her amended complaint. Wellogix,

Inc. v. Accenture, L.L.P., 716 F.3d 867, 875– 76 (5th

Cir. 2013) (holding that “Wellogix presented sufficient

evidence and testimony to support the jury’s finding

that Wellogix’s technology contained trade secrets”

without requiring a specific description of the trade

secret). Wells does not allege the extent to which the

data is “known by employees and others involved in

the business” or the “value of that information to the

business and its competitors.” Id. at 875 (quoting In

re Bass, 113 S.W.3d 735, 739–40 (Tex. 2003)). There

are no allegations about “the amount of effort or

money expended . . . in developing the information” or

the “difficulty with which the data could be acquired

or duplicated.” Id. And Wells does not allege that the

data “derives independent economic value from being

not generally known or readily ascertainable through

proper means.” CAE Integrated, LLC, 44 F.4th at

App. 25

262. 10

“[W]e are not bound to accept as true ‘a legal

conclusion couched as a factual allegation.’” In re

Ondova, 914 F.3d at 993. Wells alleges that the data

from the “sex selection study” is a trade secret because

she says it is. The district court did not err.

VII

Finally, Wells claims that the district court

improperly denied her request to amend her

complaint as “futile” because she only amended her

complaint once and discovery had been stayed.

“We review a district court’s denial of leave to

amend under Rule 15(a) for an abuse of discretion.”

Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872

(5th Cir. 2000). But Rule 15 requires that a trial court

“freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). Accordingly, “[u]nless there is a

10 Notably, Wells alleges that she is the inventor—rather than the

owner—of the alleged trade secrets. Simplot invited her to conduct a

sex selection study, but she does not allege that she owned the

subsequent research. The distinction between a trade secret

owner and a trade secret inventor is an important one. See Tex.

Civ. Prac. & Rem. Code § 134A.002(3-a) (“‘Owner’ means, with

respect to a trade secret, the person or entity in whom or in which

rightful, legal, or equitable title to, or the right to enforce rights in,

the trade secret is reposed.” (emphasis added)).

App. 26

‘substantial reason to deny leave to amend, the

discretion of the district court is not broad enough to

permit denial.’” Stripling, 234 F.3d at 872 (citation

omitted). An amendment is futile if “the amended

complaint would fail to state a claim upon which relief

could be granted.” Id. at 873.

Here, the district court found that the defects

in Wells’s claims could not be cured by any factual

development due to the limitations periods, sovereign

immunity, or an inability to “state a claim upon which

relief could be granted.” See id. Additionally, “a

movant must give the court at least some notice of

what his or her amendments would be and how those

amendments would cure the initial complaint’s

defects.” Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204,

1209 (5th Cir. 2021), as revised (Nov. 26, 2021) (citing

Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590

(5th Cir. 2016)). Wells has not explained how an

amendment would—or could—cure her pleading

deficiencies. We find no abuse of discretion.

The district court’s judgment is AFFIRMED.

App. 27

United State Court of Appeals

for the Fifth Circuit

No. 24-10518

[Filed March 3, 2025]

CARA WESSELS WELLS,

Plaintiff-Appellant,

versus

TEXAS TECH UNIVERSITY; SAMUEL PRIEN;

LINDSAY PENROSE,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

USDC No. 5:23-CV-60

Before KING, HO, and RAMIREZ, Circuit Judges.

JUDGMENT

This cause was considered on the record on

appeal and the briefs on file.

IT IS ORDERED and ADJUDGED that the

judgment of the District Court is AFFIRMED.

App. 28

IT IS FURTHER ORDERED that Appellant

pay to Appellees the costs on appeal to be taxed by the

Clerk of this Court.

The judgment or mandate of this Court shall

issue 7 days after the time to file a petition for

rehearing expires, or 7 days after entry of an order

denying a timely petition for panel rehearing, petition

for rehearing en banc, or motion for stay of mandate,

whichever is later. See Fed. R. App. P. 41(b). The court

may shorten or extend the time by order. See 5th Cir.

R. 41 I. O. P.

App. 29

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS LUBBOCK

DIVISION

[Filed May 7, 2024]

No. 5:23-CV-060-H

CARA WESSELS WELLS,

Plaintiff,

TEXAS TECH UNIVERSITY, et al.,

Defendants.

ORDER

The plaintiff, Cara Wells, asserts fourteen

disparate claims against Texas Tech and two

professors, ranging from employment discrimination

to patent invalidation to defamation per se, based on

events during her time as a student at Texas Tech

University and afterward. Before the Court are four

motions to dismiss. Dkt. Nos. 15; 16; 24; 25. The

individual defendants and Texas Tech each filed

motions to dismiss (Dkt. Nos. 15; 16), which were then

superseded by an amended complaint and subsequent

motions. The Court denies these motions in part as

moot but grants the motion to dismiss certain tort

claims against the individual defendants because the

defendants have a statutory right to such dismissal

that accrued upon the filing of the original motion. See

App. 30

Dkt. No. 15 at 5. In their new motions to dismiss, the

defendants seek dismissal of all claims. Dkt. Nos. 24;

25. The Court grants in full Texas Tech’s motion to

dismiss (Dkt. No. 24) and the individual defendants’

motion to dismiss (Dkt. No. 25) and dismisses all of

Wells’s claims with prejudice. Wells’s claims are not

viable for a variety of reasons, including immunity

bars, statute of limitations issues, or failure to

plausibly allege the elements of the claims.

Factual and Procedural Background

Factual Allegations1

Wells’s allegations span over a decade,

beginning with her enrollment as an undergraduate

student at Texas Tech to her time as a PhD student

and concluding with her participation in a program

designed to help start-up companies. See generally

Dkt. No. 19. In 2009, Wells began her undergraduate

studies at Texas Tech and took a course taught by Dr.

Samuel Prien. Id. ¶¶ 32–33. Wells subsequently

became a research assistant for Prien and worked in

his lab where she met Dr. Lindsay Penrose, another

Texas Tech professor. Id. ¶¶ 34–37. Wells asserts

that Prien and Penrose made inappropriate and

harassing comments towards her while she worked

at the lab. See id. ¶ 37.

Many of Wells’s allegations center around the

annual American Society for Reproductive Medicine

(ASRM) meeting, a research conference. See, e.g., id.

These allegations are taken from Wells’s amended complaint

(Dkt. No. 19), which the Court accepts as true when resolving a

motion to dismiss. Villarreal v. Wells Fargo Bank, N.A., 814

F.3d 763, 766 (5th Cir. 2016).

App. 31

¶¶ 38–40, 44– 45, 51–52, 57–58, 72, 96, 99–100. Wells

first attended the conference with Prien and Penrose

in 2012 to present a research poster. Id. ¶ 38. She

claims that Prien demanded that she share a hotel

room with him and Penrose on the trip. Id. ¶ 39. And

he also instructed her to wear jeans rather than

business attire. Id. ¶ 40. Prien made similar

comments on her attire and required Wells to share a

room with him and Penrose at subsequent

conferences. E.g., id. ¶¶ 44–45, 51–52, 57–58. Wells

also alleges that Prien required other students,

including male students, to share a hotel room with

him on these research trips. Id. ¶¶ 72, 81. Wells

asserts that these trips often involved harassment

from Prien and Penrose, such as a “demeaning

incident” in 2014 where “Dr. Penrose heated a cookie

and then crumbled it onto Dr. Wells [sic] bed while

staring Dr. Wells in the eye” and Prien “did nothing

to remedy or address” this incident. E.g., id. ¶ 52.

While a PhD student, Wells continued to work

in Prien’s lab where she and the professors developed

ideas that resulted in patent applications. See id. ¶¶

47–50, 53, 76. Wells claims the original idea of one of

those patents arose from a discussion she and Prien

had about embryo buoyancy. Id. ¶¶ 50, 76. However,

before the patent was awarded, Texas Tech

“unilaterally removed [her] as an inventor” from the

patent application. Id.

¶ 102. She also alleges that her portion of royalties

for another patent is disproportionately lower than

the professors’ and that she was never included in a

conversation about the apportionment. Id. ¶ 101. She

also has “not receive[d] any royalties from [Texas

Tech] for several patents.” Id. ¶ 115.

App. 32

Wells graduated with her PhD in 2017, though

she “was so traumatized that she felt she could not

walk at graduation.” Id. ¶ 64. She then applied for jobs

with Prien listed as a reference. Id. ¶ 65. Wells applied

to numerous positions over six months and was

unable to find work. Id. ¶ 66. She eventually spoke to

Prien about this job search where he allegedly told her

that he had “told [potential employers] that he could

not recommend her for the job.” Id. ¶¶ 66–67. She

claims that Prien did this “so that she would have no

choice but to return to an assistant’s position in her

lab.” Id. ¶¶ 67–68. But Wells found other employment

working as an andrologist. Id. ¶ 69.

During her time as an andrologist, “Wells

began building her first company, Embryotics.” Id. ¶

71. Her new company brought her back to Texas Tech

and Prien. See id. ¶¶ 74–75, 78. In 2018, she left her

job as an andrologist to work on Embryotics full time

and applied for the company to participate in Texas

Tech’s Accelerator program. Id. ¶¶ 77–78. The

Accelerator program is “a year-long program that

provides selected startup companies $25,000 and

additional funding opportunities, monthly business

trainings, marketing and business plan support,

access to regional professional events, and a team of

mentors from various industries in the venture

space.” Id. ¶ 78. Embryotics was selected, and Wells

added Prien to her team of mentors. Id. ¶ 79.

Embryotics and Wells partnered with another

company, Simplot, to conduct research. See id. ¶¶ 81,

97. As part of this arrangement, Embryotics executed

a non-disclosure agreement with Simplot. Id. ¶ 97.

Embryotics dissolved in 2019, and Wells

formed a new company, EmGenisys. Id. ¶¶ 82–83.

Wells again applied to have her company in the

App. 33

Accelerator program, EmGenisys was accepted, and

Prien was added as a mentor. See id. ¶¶ 85–86, 95–

96. With her new company, she sought to work with a

livestock company, Vytelle, which executed a letter of

intent “for a project that would build upon the

technology” that Embryotics had been working on

prior to its dissolution. Id. ¶¶ 84–85. But because the

Embryotics technology had been developed at Texas

Tech, EmGenisys could only use the technology with

a license from the university. Id. ¶ 85. Once

EmGenisys was accepted into the Accelerator

program, Wells learned that Texas Tech licensed the

technology to Vytelle and arranged for EmGenisys

and Wells to work for Vytelle. Id. ¶ 90. Wells asserts

that this arrangement was contrary to promises made

to her and was driven by Prien and Penrose.

Id. ¶¶ 88–90. Wells later met with various university

officials, including Penrose and Prien, in August 2019,

to explain her position, but she was met with

resistance. Id. ¶¶ 93–94.

Nevertheless, EmGenisys remained in the

Accelerator program, and Wells continued to include

Prien in her research. Id. ¶¶ 95–96. She discussed her

research with him, which Prien then allegedly used

as part of an abstract for a presentation at the ASRM

conference. Id. ¶ 96. Wells worried that his

presentation would harm her companies and would

breach Embryotics’s non-disclosure agreement with

Simplot. Id. ¶ 97; see also id. ¶ 81. She also claims

that his disclosure via the abstract violated his nondisclosure agreement with Texas Tech as a mentor.

Id. ¶ 98. So she asked Prien to withdraw his

presentation, and, when he refused, convinced the

conference to remove his abstract due to his

App. 34

“misconduct and misappropriation.” Id. ¶¶ 98–99.

In 2022, Wells became a mentor in the

Accelerator program. Id. ¶ 108. She “under[went]

rigorous interviews, background checks and

onboarding procedures” prior to taking the position,

and she was listed on Texas Tech’s website. Id. ¶ 110.

She hoped that the unpaid mentor position could later

lead to a compensated one “by being hired in [a] fulltime role[] at [Texas Tech] or by partnering with one

of the companies accepted into the Accelerator Hub,”

like other mentors commonly did. Id. ¶ 111. But

Wells’s time as a mentor was short-lived and not wellreceived. See id. ¶ 112. Shortly after she started,

“Prien wrote and distributed by email a song he titled

the ‘Time to Move on Song,’ which does not directly

name Dr. Wells, but is a clear reference to her.” Id. ¶

109. Then, Texas Tech’s general counsel’s office

directed the program to remove Wells as a mentor. Id.

¶ 112. After Wells was removed, other mentors were

told “to cease ‘any formal relationship with and

remove any and all collaboration with’” her. Id.

Further, the mentors “were specifically instructed to

‘no longer engage Dr. Wells in Hub programming or

involve her in the fulfillment’ of the [m]entorship

roles.” Id. She was also “removed from many [Texas

Tech] publications, including articles honoring her as

a distinguished alumnus [sic] and EmGenisys

founder.” Id. ¶ 114.

Wells does not allege that she formally

complained of harassment during her time as a

student. Rather, she asserts that, at some unspecified

point, she “emailed a student body representative

asking for help to protect students from [Prien and

App. 35

Penrose’s inappropriate conduct toward] powerless

students.” Id. ¶ 105. She also later told a mentor in

the Accelerator program and the Managing Director

of the Innovation Hub that Prien had “forc[ed] her to

share a hotel room with him and Dr. Penrose on all of

their [u]niversity- sponsored research trips.” Id. In

2020, three years after her graduation, she told Dr.

Mark Sheridan, the dean of the graduate school, that

the university should “prevent students from sharing

hotel rooms with professors” and that “students often

are faced with unnecessary additional expense,” such

as research costs. Id. ¶ 106. She claims that other

individuals at Texas Tech complained about Prien

and Penrose and that those individuals filed their

complaints with the university’s human resources

department. Id. ¶ 107.

Procedural History

Based on these events, Wells filed a complaint

asserting numerous claims against Texas Tech,

Prien, and Penrose. Dkt. No. 1. The defendants filed

motions to dismiss these claims, citing various

deficiencies. Dkt. Nos. 15; 16. Of particular

importance, “[Texas Tech] request[ed] the Court to

dismiss [the p]laintiff’s tort claims against the

[i]ndividual [d]efendants, who are employees of

[Texas Tech] pursuant to [Texas Civil Practice and

Remedies Code S]ection 101.106.” Dkt. No. 15 at 5.

After these motions were filed, Wells amended

her complaint (Dkt. No. 19), and the defendants filed

new motions to dismiss (Dkt. Nos. 24; 25). Wells’s

amended complaint asserts fourteen claims: (1) Title

VII sexual harassment against Texas Tech; (2) Title

App. 36

VII hostile work environment against Texas Tech; (3)

Title VII retaliation against Texas Tech;

(4) Title IX discrimination against Texas Tech, Prien,

and Penrose; (5) Equal Protection Clause violation

against Prien and Penrose; (6) correction of

inventorship against Prien and Penrose; (7) patent

invalidity against Prien and Penrose; (8) tortious

interference with contract against Prien; (9) trade

secret misappropriation against Prien; (10)

intentional infliction of emotional distress against

Prien and Penrose; (11) unjust enrichment against

Prien and Penrose; (12) breach of fiduciary duty

against Prien and Penrose; (13) fraudulent

concealment against Prien and Penrose; and (14)

defamation per se against Prien. Dkt. No. 19 ¶¶ 118–

217. In response, the defendants assert that these

claims are all fatally flawed in light of their immunity

to suit for some claims, statute of limitations bars, and

insufficient factual allegations. See Dkt. Nos. 24; 25.

The amended complaint and the subsequent motions

to dismiss have mostly mooted the original motions to

dismiss. However, for at least some of Wells’s tort

claims, by operation of Texas law, the original motions

to dismiss are still controlling. See Section 3.D infra.

The motions are fully briefed and ripe for resolution

by the Court.

Motion to Dismiss Standard

A complaint must contain “a short and plain

statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Therefore, a

plaintiff must allege sufficient factual matter,

accepted as true, to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550

App. 37

U.S. 544, 555, 570 (2007). A plaintiff’s claim “has

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). This “plausibility

standard is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a

defendant has acted

unlawfully.” Id. If a complaint pleads facts that are

“‘merely consistent with’ a defendant’s liability, it

‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

Defendants can challenge the sufficiency of a

complaint through a motion to dismiss under Rule

12(b)(6). See Fed. R. Civ. P. 12(b)(6). In resolving a

motion to dismiss, a court must “accept all wellpleaded facts as true and view those facts in the light

most favorable to the plaintiff.” Richardson v. Axion

Logistics, L.L.C., 780 F.3d 304, 306 (5th Cir. 2015)

(cleaned up) (quoting Bustos v. Martini Club, Inc., 599

F.3d 458, 461 (5th Cir. 2010)). However, this tenet

does not extend to legal conclusions. Iqbal, 556 U.S. at

678. Further, “[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory

statements, do not suffice.” Id.

Analysis

The Court dismisses all of Wells’s claims. Her

Title VII claims are untimely, and she has not

plausibly alleged deliberate indifference to any sexbased harassment or discrimination as necessary for

a Title IX claim. Her patent claims are barred by

App. 38

sovereign immunity and are missing an indispensable

defendant. Her tort claims are all asserted against the

professors within the scope of their employment and

therefore must be dismissed under Texas law. To the

extent she is raising a statutory trade secret

misappropriation claim, she has failed to plausibly

allege that Prien misappropriated a trade secret that

belonged to her. Finally, her equal protection claim is

not cognizable against the professors in their official

capacity because she has not alleged any ongoing

violation of federal law.

Accordingly, the Court grants in part the defendants’

original motions to dismiss (Dkt. Nos. 15; 16) as to

certain tort claims, denies in part as moot the other

portions of the original motions, and grants in full the

defendants’ new motions to dismiss (Dkt. Nos. 24; 25).

Title VII Claims

Wells first asserts claims under Title VII

against Texas Tech for sexual harassment, hostile

work environment, and retaliation. Dkt. No. 19 ¶¶

118–40. The Court dismisses these claims as timebarred because she did not file her EEOC charge

within the 300-day limitations period. 2

2 The Court notes that Wells alleges only that she sought relief

from the EEOC, not any authorized state agency, and that as a

result, the 180-day limitations period would ordinarily apply.

42 U.S.C. § 2000e-5(e)(1); Dkt. No. 19 ¶ 30. However, Texas

Tech bases its motion to dismiss on the 300- day limitations

period, claiming that Wells cross-filed her complaint with the

Texas Workforce Commission. See Dkt. No. 24 at 3–4. In light

of Texas Tech’s own arguments and because Wells’s claims are

untimely under either limitations period, the Court applies the

more generous statute of limitations for purposes of resolving

the motions to dismiss.

App. 39

Title VII claims are subject to a mandatory

claims-processing rule that requires a plaintiff to first

administratively exhaust her claims before bringing a

lawsuit. See 42 U.S.C. § 2000e-5; Taylor v. Books A

Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002).

One aspect of this requirement is the employee must

file a charge with the EEOC within 300 days after the

unlawful employment practice occurred. 42 U.S.C. §

2000e-5(e)(1). Wells filed her EEOC charge on

November 11, 2022. Dkt. No. 19 ¶ 30 & n.1. However,

she has not been an employee of Texas Tech since her

PhD graduation in 2017. See id. ¶¶ 67–117.

Accordingly, her EEOC charge was clearly filed more

than 300 days after any unlawful employment

practice occurred. As a result, Wells failed to timely

file a charge as required to properly administratively

exhaust her claims.

Nevertheless, Wells argues that, despite not

being formally employed, she was an “employee” of

Texas Tech for purposes of Title VII when she

volunteered as an unpaid mentor for the Accelerator

program, and therefore her removal from serving as a

mentor was an adverse action. Dkt. No. 35 at 3–5. But

Fifth Circuit precedent forecloses her argument that

an unpaid position counts as employment. See Juino

v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 439

(5th Cir. 2013). To determine whether a nontraditional hire may be classified as an “employee,”

the Fifth Circuit applies a two-step approach. Id. at

434, 437, 439. The first asks whether the putative

employee received remuneration in the form of

“salary, wages, or significant indirect benefits that are

not incidental to the service performed.” Id. at 437,

439. Only if the putative employee shows some

App. 40

remuneration may a court proceed to the second step

of the economic realities and common law agency test.

Id. at 434, 439. Applying this test, the Fifth Circuit

rejected the argument that a volunteer firefighter who

received some compensation, a life insurance policy, a

uniform, and training had shown sufficient

renumeration. Id. Therefore, the firefighter was not

covered by Title

VII. Id. at 439–40.

Here, Wells does not allege that she received a

salary, wages, or significant indirect benefit from her

mentor position. Dkt. No. 19 ¶¶ 108, 110–11. Instead,

she asserts that she interviewed for the position, had

the position listed on a Texas Tech website, and

hoped that she would be able to transform the

position into a compensated position. Id. Her mere

hope of possible future remuneration is insufficient to

show any significant benefits that are not incidental

to the position. See Juino, 717 F.3d at 437, 439–40.

At best, her one-sided expectation is an indirect

benefit and is substantially less than the actual

compensation and insurance benefits that were found

insufficient in Juino. See id. As a result, she has not

plausibly alleged that she was an employee of Texas

Tech when she served as an unpaid mentor, and 2017

remains her last relevant employment date for

actionable harassment or hostile work environment.

Accordingly, her 2022 EEOC charge—five years after

her last date of employment with Texas Tech—was

not timely filed. See 42 U.S.C. § 2000e-5(e)(1).

Wells’s retaliation claim fares no better. True,

former employees can fall within Title VII’s

protections against retaliation. Robinson v. Shell Oil

Co., 519 U.S. 337, 339, 346 (1997). But that is typically

App. 41

a principle to ensure that employees who are

discharged in retaliation for their complaints are able

to bring claims even though they are no longer a

current employee, see id., not to give someone who

was once employed by a company a perpetual right of

action for any unfavorable action that the company

may take at some point in the future. Consequently, a

former employee fails to plausibly allege Title VII

retaliation when she is sufficiently removed from the

employment relationship because the alleged harm is

so attenuated that it would not dissuade a reasonable

worker from making a discrimination charge. See

Allen v. Radio One of Tex. II, L.L.C., 515 F. App’x 295,

302 (5th Cir. 2013) (citing Robinson, 519 U.S. at 339).

In Allen, for example, the Fifth Circuit rejected the

plaintiff’s claim of retaliation when her former

employer refused to do business with her new

company, which occurred more than a year after her

protected activity and 18 months after she was fired.

Id. In contrast, retaliation by a former employer was

actionable when the plaintiff asserted that he received

a negative reference shortly after he was fired and had

filed an EEOC charge. Robinson, 519 U.S. at 339.

Here, given the 300-day limitations period and

that Wells filed her EEOC charge on November 11,

2022, the only possibly actionable claims of retaliation

would be those occurring on January 15, 2022, or

later. See 42 U.S.C. § 2000e-5(e)(1); Dkt. No. 19 ¶ 30

& n.1. But Wells has not been a Texas Tech employee

since 2017, and the only date provided by Wells for

any possible complaint by her of inappropriate actions

is “fall 2020,” more than a year earlier. See Dkt. No.

19 ¶ 106. Such claims of adverse actions that occurred

roughly five years after her last date of employment—

and over a year after any complaints about

App. 42

impropriety—are simply too attenuated from her

employment relationship to state a Title VII claim.

See Allen, 515 F. App’x at 302–03; see Dkt. No. 19 ¶¶

105–06, 112. No reasonable worker would refuse to

make or support a discrimination charge because,

several years later, after initially leaving her

employment on her own terms, she may be removed

from an unpaid position by the former employer. Even

if this could be actionable, she provides no factual

allegations to allow a plausible inference that she was

removed from the mentor program or blacklisted from

the mentor committee in retaliation for any protected

activity. See Dkt. No. 19 ¶ 112. And the extended

amount of time between any protected activity and

her removal “present[s] too attenuated a time frame

for legal causation.” Allen, 515 F. App’x at 303

(finding a year between the EEOC charge and the

adverse action to be too removed).

In light of these deficiencies, the Court

dismisses Well’s Title VII claims.

Title IX Claims

Wells next asserts a Title IX claim against

Texas Tech and the professors. These claims are

dismissed because the professors cannot be liable

under Title IX, and Wells has not plausibly alleged

deliberate indifference by Texas Tech.

Title

prohibits

intentional

sex

discrimination “under any education program or

activity receiving [f]ederal financial assistance.” 20

U.S.C. § 1681(a); Doe v. Edgewood Indep. Sch. Dist.,

964 F.3d 351, 358 (5th Cir. 2020). It imposes liability

App. 43

only against an institution—not school officials,

professors, or other individuals. Fitzgerald v.

Barnstable Sch. Comm., 555 U.S. 246, 257 (2009).

Accordingly, her Title IX claim against the individual

professors must be dismissed.

Wells’s Title IX claim against Texas Tech

presents numerous problems. For one, Title IX is

governed by a state statute of limitations for personal

injury, so Wells’s claim is subject to Texas’s two-year

statute of limitations. See King-White v. Humble

Indep. Sch. Dist., 803 F.3d 754, 759–60 (5th Cir.

2015). Moreover, Title IX generally contains an

implied private right of action for students

challenging sex-based discrimination in an education

program, rather than a general right of action for

anyone interacting with a university. See, e.g., Lowrey

v. Tex. A&M Univ. Sys., 117 F.3d 242, 247–48 (5th Cir.

1997); Lakoski v. James, 66 F.3d 751, 754 (5th Cir.

1995). 3 Many of Wells’s allegations fall outside of the

two-year window, and she has not been a Texas Tech

student since 2017. See generally Dkt. No. 19.

Wells does not address this problem in her briefing,

instead arguing that her “employment” as a mentor

makes her claims within the two-year period. Dkt. No.

35 at 6. Besides the fact that she was not an employee

as previously explained, see Section 3.A supra, it is

unclear what relevance that could possibly have for

her Title IX claims. Employees do not have a private

right of action under Title IX for discrimination unless

See also Doe v. Brown Univ., 270 F. Supp. 3d 556, 561–62

(D.R.I. 2017); K.T. v. Culver-Stockton Coll., No. 4:16-CV-165

CAS, 2016 WL 4243965, at *6 (E.D. Mo. Aug. 11, 2016); Lopez

v. San Luis Valley, Bd. of Coop. Educ. Servs., 977 F. Supp.

1422, 1425–26 (D. Colo. 1997).

App. 44

they are asserting a retaliation claim for reporting a

Title IX violation, which is not at issue here. See

Lowrey, 117 F.3d at 247–48; Lakoski, 66 F.3d at 754;

Dkt. No. 19 ¶¶ 141–49. Moreover, even if she could

possibly have a claim as a non-student, besides a

conclusory statement, she does not explain how

removing her name from news articles on Texas

Tech’s website, from her role as a mentor, or

instructing people to stop contacting her constituted

denying her the benefits of an education program. See

Dkt. No. ¶¶ 112, 114, 144, 146. To the extent that the

Accelerator program could fall within the scope of

Title IX, Wells’s own allegations are that she was

removed from her role as a mentor, not a participant

or beneficiary of the program. See Dkt. No. ¶¶ 108,

112. It is unclear what possible educational benefits

she was receiving in that position. Accordingly, her

complaint does not appear to plausibly allege that she

falls under Title IX’s protections.

Beyond these roadblocks, assuming arguendo

that any of her allegations were actionable under Title

IX, she has failed to plausibly allege a claim for relief.

A university is not liable unless it had actual notice of

the discrimination given to an appropriate official and

responded with deliberate indifference. Doe, 964 F.3d

at 358–59. An appropriate official is someone with

“authority to both ‘repudiate th[e] conduct and

eliminate the hostile environment.’” Id. at 360

(emphasis and alteration in original) (quoting Rosa H.

v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 661

(5th Cir. 1997)). And this notice must inform the

official of the sex-based discrimination or harassment.

Id. at 364.

App. 45

Wells has not plausibly alleged that such notice

was given. She argues that her conversation with

Sheridan, the dean of the graduate school, in fall 2020

provided this notice. See Dkt. No. 35 at 9. Putting

aside the clear statute of limitations problem, her

factual allegations as to what she told Sheridan do not

include any statements about her experiencing sexbased discrimination. See Dkt. No. 19 ¶ 106. Instead,

she told Sheridan that she thought the university

should “prevent students from sharing hotel rooms

with professors” and that “students often are faced

with unnecessary additional expense,” such as having

to fund their own research. Id. None of that includes

any notice that she was experiencing sexual

harassment or sex-based discrimination. And to the

extent she tries to rely on complaints by other

students, she does not explain how that put Texas

Tech on notice that she was experiencing sex-based

discrimination. Id.; see also Doe, 964 F.3d at 364.

Further, while Wells seems to argue that she did not

need to provide any notice to an appropriate official

for some of her claims because they were perpetuated

by “high ranking officials,” Dkt. No. 35 at 9, the actual

notice requirement applies unless an official policy of

sex-based discrimination is alleged. See Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

She does not allege any such policy nor did her

amended complaint indicate that her Title IX claim

was based on the actions of these “high ranking

officials.” Dkt. No. 19 ¶¶ 141–49 (alleging that “Dr.

Prien and Dr. Penrose carried out the harassment”).

In light of the foregoing, Wells’s Title IX claim fails as

a matter of law and is dismissed.

Patent Claims

App. 46

Wells next asserts claims for correction of

inventorship and a declaration of patent invalidity

against Prien and Penrose. Id. ¶¶ 160–68. She seeks

to have the Court direct the Patent and Trademark

Office to include her as a listed inventor for U.S.

Patent No. 11,169,064, or alternatively to declare that

the patent is invalid because she was knowingly and

deceptively removed as an inventor. Id. The

defendants argue that these claims should be

dismissed because they are barred by sovereign

immunity, and Texas Tech is an indispensable party

to any resolution of the patent claims because it owns

the patent. Dkt. Nos. 25 at 12–14; 37 at 3–6. Wells

argues that her claims are brought under the Ex parte

Young doctrine and are not barred because they seek

prospective relief. Dkt. No. 34 at 6.

The Court dismisses these claims because (1) Prien

and Penrose are not proper defendants under the Ex

parte Young doctrine; and (2) even if they were, Texas

Tech is an indispensable party to any claim

implicating the validity of the patent, and its absence

as a defendant to these claims requires dismissal.

As a general matter, Texas Tech has sovereign

immunity as an agency of Texas from private suits.

Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th

1013, 1025 (5th Cir. 2022). When sued in their official

capacity, Prien and Penrose are treated like Texas

Tech itself and therefore such claims are barred

against them unless sovereign immunity is waived.

Id.

And while 35 U.S.C. § 296(a) purports to abrogate a

state’s sovereign immunity for violations of federal

patent laws, the Supreme Court has held that such

waiver

unconstitutional.

Fla.

Prepaid

App. 47

Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,

527 U.S. 627, 647–48 (1999). Accordingly, Texas

Tech—and, by extension, Prien and Penrose—are

cloaked with sovereign immunity for Wells’s patent

claims. See Xechem Int’l, Inc. v. Univ. of Tex. M.D.

Anderson Cancer Ctr., 382 F.3d 1324, 1332 (Fed. Cir.

2004) (applying sovereign immunity to a correction of

inventorship claim).

However, the Ex parte Young doctrine provides

an exception to this principle by permitting a plaintiff

to seek injunctive or declaratory relief against a state

official who is violating federal law. City of Austin v.

Paxton, 943 F.3d 993, 997 (5th Cir. 2019); see Ex parte

Young, 209 U.S. 123, 155–57 (1908). Importantly, an

Ex parte Young claim may only be maintained against

a state official who “by virtue of his office has some

connection with the enforcement of the challenged act,

or else the suit is merely making him a party as a

representative of the state, and thereby attempting to

make the state a party.” City of Austin, 943 F.3d at

997 (cleaned up) (quoting Ex parte Young, 209 U.S. at

157). This “requires some scintilla of ‘enforcement’ by

the relevant state official,” such as “compulsion or

constraint” of the plaintiff. Id. at 1002.

Here, Wells has failed to plead any facts

establishing that Prien and Penrose have any

connection to the claimed ongoing violation of federal

law. See Dkt. No. 19 ¶¶ 102, 160–68. Instead, she

alleges that “the University, through its attorney

Kristopher Lance Anderson, unilaterally removed

Dr. Wells as an inventor from [the patent

application],” resulting in her omission as a listed

inventor. Id. ¶ 102. She does not explain what future

App. 48

action Prien and Penrose are significantly likely to

take that would constitute a violation against Wells.

Nor does she provide any examples of activities in her

response to the motion to dismiss. See Dkt. No. 34 at

6. The complaint provides no basis to plausibly infer

that Prien and Penrose have “some scintilla of

‘enforcement’” regarding Wells’s cited violations of

patent law, and therefore they are not susceptible to

an Ex parte Young claim. See City of Austin, 943

F.3d at 1002; see also Pennington Seed, Inc. v.

Produce Exch. No. 299, 457 F.3d 1334, 1342–43 (Fed.

Cir. 2006) (dismissing an Ex parte Young claim

because “[a]llegations that a state official directs a

University’s patent policy are insufficient to causally

connect that state official to a violation of federal

patent law”).

Moreover, even if Prien and Penrose were

proper defendants, Wells’s patent claims cannot be

maintained without Texas Tech as a party to these

claims. And because Texas Tech is immune from suit,

it cannot be added as a party here and her claims

must be dismissed regardless. As the defendants note,

Texas Tech owns the patent at issue and is, therefore,

a necessary party to this litigation. See U.S. Patent

No. 11,169,064 (filed Nov. 9, 2021), at [73]4; Dkt. Nos.

4 In resolving a Rule 12(b)(6) motion, the Court may consider

matters of which it can take judicial notice. Lovelace v. Software

Spectrum Inc., 78 F.3d 1015, 1017–18 (5th Cir. 1996). “Courts

routinely take judicial notice of patents, prosecution history, and

patent applications,” as such information is available as part of

the public record on the Patent and Trademark Office’s database.

See, e.g., SB IP Holdings, LLC v. Vivint Smart Home, Inc., No.

4:20-cv-886, 2021 WL 1721715, at *1 (E.D. Tex. Apr. 30, 2021);

Vervain, LLC v. Micron Tech., Inc., No. 6:21-cv-487-ADA, 2022

WL 23469, at *5 n.2 (W.D. Tex. Jan. 3, 2022); Jenny Yoo

App. 49

25 at 13; 37 at 6. Given that “[t]he validity of a patent

requires that the inventors be correctly named,” any

“part[y] with an economic stake in a patent’s validity

[is] entitled to be heard on inventorship issues once a

putative inventor has sued to correct inventorship.”

Chou v. Univ. of Chi., 254 F.3d 1347, 1359 (Fed. Cir.

2001); see also 35

U.S.C. § 256 (noting that a court “may order

correction of the patent on notice and hearing of all

parties concerned”). And clearly Wells’s alternative

request for invalidation of the patent would implicate

Texas Tech’s ownership interest. Because Texas Tech

has an interest in the patent and resolving these

claims in its absence “may as a practical matter

impair or impeded [its] ability to protect the

interest,” it must be joined to these claims. See Fed.

R. Civ. P. 19(a)(1)(B); Lee v. Anthony Lawrence

Collection, L.L.C., 47 F.4th 262, 266–67 (5th Cir.

2022).

However, in light of Texas Tech’s sovereign

immunity, it cannot be joined as a defendant to these

claims. See Lee, 47 F.4th at 267–68; Gensetix, Inc. v.

Bd. of Regents of Univ. of Tex. Sys., 966 F.3d 1316,

1323 (Fed. Cir. 2020). When a party “who is required

to be joined if feasible cannot be joined, the court

must determine whether, in equity and good

conscience, the action should proceed among the

existing parties or should be dismissed.” Fed. R. Civ.

P. 19(b). While this determination typically involves

considering four factors, see id., the Fifth Circuit has

Collection, Inc. v. Watters Design, Inc., No. 3:17-cv-3197-M, 2018

WL 3330025, at *5 n.8 (N.D. Tex. June 6, 2018). Accordingly, the

Court takes judicial notice of the patent.

App. 50

instructed that a state’s sovereign immunity is a

substantial interest that is alone “enough to require

dismissal of the action because there is a potential for

injury to the university’s interest as the absent

sovereign.” Lee, 47 F.4th at 268 (cleaned up) (quoting

Republic of Philippines v. Pimental, 553 U.S. 865,

867 (2008)). 5 Sovereign immunity justifies such

dismissal because this “sovereign interest is

necessarily impaired when plaintiffs try to use the

state’s sovereign immunity to lure it into a lawsuit

against its will.” Id. at 267.

The present case exemplifies this problem. If

these claims proceeded without Texas Tech, it would

have to choose between waiving its sovereign

immunity by moving to be joined as a defendant or

having other defendants who do not own the patent

defend its validity. While the professors may take a

similar stance as the university would if forced to

defend the claims, their interests are not identical

because only Texas Tech has ownership of the patent.

See id. at 269. Accordingly, to adequately protect its

interest in the patent’s validity, Texas Tech would be

forced to waive its immunity against its will. Thus, “in

the interest of ‘equity and good conscience,’” Wells’s

patent claims must be dismissed. See id. at 268.

5 Even in patent cases, Rule 19 is analyzed under the law of the

regional circuit. Univ. of Utah v. Max- Planck-Gesellschaft Zur

Forderung Der Wissenschaften E.V., 734 F.3d 1315, 1320 (Fed.

Cir. 2013).

Accordingly, this Court is bound by the Fifth Circuit’s adoption

of the controlling weight of a state’s sovereign immunity in the

Rule 19(b) analysis, rather than the Federal Circuit’s contrary

conclusion in Gensetix, Inc. Compare Lee, 47 F.4th at 267–68,

with Gensetix, Inc., 966 F.3d at 1325– 27.

App. 51

Tort Claims

Wells next raises several tort claims against

Prien and Penrose. Specifically, she asserts claims of

intentional infliction of emotional distress, unjust

enrichment, breach of fiduciary duty, and fraudulent

concealment against both Prien and Penrose. Dkt.

No. 19 ¶¶ 180–210. She also alleges claims of tortious

interference with contractual relations, trade secret

misappropriation, and defamation per se against

Prien. Id. ¶¶ 169–79; 211–17. The defendants argue

that all of these claims are subject to dismissal under

the Texas Tort Claims Act because these claims are

within their general scope of employment with Texas

Tech. 6 See Dkt. No. 25 at 9–11; Tex. Civ. Prac. & Rem.

Code § 101.106.

The Court dismisses these claims. First, her

claims of intentional infliction of emotional distress,

fraudulent concealment, and defamation per se are

subject to mandatory dismissal. She made an

irrevocable decision to sue them in their official

capacities by raising such claims against both them

and Texas Tech in her original complaint, and Texas

Tech requested dismissal of these claims in the

original motions to dismiss. See Dkt. Nos. 1 ¶¶ 180–

86, 200–08, 213–24; 15 at 5. Upon the filing of that

motion, those tort claims against the individual

defendants were subject to immediate dismissal, and

Wells’s attempts to undo that election to avoid

Texas law governs Wells’s various tort claims because “[a]

federal court exercising pendent jurisdiction over state law

claims[] must apply the substantive law of the state in which it

sits.” Sommers Drug Stores Co. Emp. Profit Sharing Tr. v.

Corrigan, 883 F.2d 345, 353 (5th Cir. 1989).

App. 52

dismissal are futile. Second, as for the other tort

claims, they arise from conduct within the scope of the

professors’ employment and, therefore, the professors

are immune from suit.

Wells’s claims against the

professors

for

intentional

infliction of emotional distress,

fraudulent concealment, and

defamation per se are subject to

mandatory dismissal.

When a plaintiff seeks to bring a tort claim

against a Texas governmental entity or its employees,

she must proceed with caution in light of the Texas

Tort Claims Act’s (TTCA) election of remedies

provision. Specifically, Section 101.106 requires a

plaintiff to “decide at the outset” before filing her

complaint “whether an employee acted independently

and is thus solely liable, or acted within the general

scope of his or her employment such that the

governmental unit is vicariously liable.” Univ. of Tex.

Health Sci. Ctr. at Hous. v. Rios, 542 S.W.3d 530, 536

(Tex. 2017) (emphasis in original) (quoting Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

657 (Tex. 2008)); see Tex. Civ. Prac. & Rem. Code §

101.106. In other words, a plaintiff cannot raise both

alternative theories that an employee acted within

the scope of employment or instead beyond that scope.

Rios, 542 S.W.3d at 536. And this selection of tort

theory—independent action or scope of employment—

is “an irrevocable election at the time suit is filed.” Id.

(emphasis in original) (quoting Garcia, 253 S.W.3d at

657). Once the plaintiff files her complaint, under

Texas law, she is bound by that choice even if she

subsequently amends her complaint. See id. at 537;

App. 53

McLemee v. Van Zandt County, No. 6:20-CV-420,

2021 WL 2535945, at *3 (E.D. Tex. June 21, 2021).

One major consequence of Section 101.106

arises when a plaintiff seeks to sue both the

governmental entity and the employees. Bringing the

same claim against both parties acts as “an election to

sue only the government.” Rios, 542 S.W.3d at 537. So,

under Section 101.106(e), “[i]f a suit is filed under [the

TTCA] against both a governmental unit and any of

its employees, the employees shall immediately be

dismissed on the filing of a motion by the

governmental unit.” Tex. Civ. Prac. & Rem. Code §

101.106(e). And once such a motion is filed, the

individual defendants’ statutory right to dismissal of

those tort claims is perfected and cannot be undone by

a subsequent amended pleading. Rios, 542 S.W.3d at

537–38; McLemee, 2021 WL 2535945, at *3.

Accordingly, a plaintiff cannot simply drop her claims

against the governmental entity after Section

101.106(e) is asserted and proceed with her claims

solely against the employees. Rios, 542 S.W.3d at

537–38. Nor can she then amend her pleading to claim

that the individual employees acted outside the scope

of their employment. McLemee, 2021 WL 2535945, at

*3. Instead, once a motion asserting the right to

dismissal under Section 101.106(e) is raised, the

individual employees become immune from suit as to

the relevant claims, and no subsequent pleading can

remove that protection. Rios, 542 S.W.3d at 537–38.

Here, Wells’s original complaint asserted her

claims of intentional infliction of emotional distress,

fraudulent concealment, and defamation per se

against both the individual defendants and Texas

App. 54

Tech. Dkt. No. 1 ¶¶ 180–86, 200–08, 213–24. This

constituted her “irrevocable election” to proceed with

these claims against the individual professors in their

official capacity. See Rios, 542 S.W.3d at 536–37

(quotation omitted); McLemee, 2021 WL 2535945, at

*3. And pursuant to Section 101.106(e), “[Texas Tech]

request[ed] the Court . . . dismiss [her] tort claims

against the [i]ndividual [d]efendants, who are

employees of [Texas Tech].” Dkt. No. 15 at 5. While

Wells has since amended her complaint to remove

Texas Tech as a defendant for these claims and to

cursorily allege that these claims arise from actions

“outside the scope of [the professors’] authority,” see

Dkt. No. 19 ¶¶ 185, 209, 217, “Texas law forbids such

maneuvering.” Arismendez v. Coastal Bend Coll., No.

2:19-CV-312, 2020 WL 977231, at *4 (S.D. Tex. Feb.

27, 2020) (citing Rios, 542 S.W.3d at 538). Upon Texas

Tech’s confirmation of the professors’ status as

employees and invocation of Section 101.106(e), see

Dkt. No. 15 at 5, the professors “accrued their right to

dismissal,” and Wells “[cannot] avoid this result by

amending [her] petition to drop the tort claims

against [Texas Tech].” Rios, 542 S.W.3d at 538.

Wells does not argue that Section 101.106 or

its irrevocable-election principle are procedural rules

rather than substantive rules such that they would

not apply in federal court. See Dkt. No. 34 at 3–5;

Hanna v. Plumer, 380 U.S. 460, 465 (1965) (noting

that “federal courts are to apply state substantive

law and federal procedural law” when resolving state

law claims). Nevertheless, even if she had raised

such an argument, the Court concludes that these

rules apply in federal court. Several federal courts in

Texas have previously dismissed TTCA claims even

when the plaintiff later amended the complaint to

App. 55

drop the claims against the governmental entity or

alternatively have found amendment to be futile

based on the reasoning of Rios. E.g., Arismendez,

2020 WL 977231, at *4; McLemee, 2021 WL 2535945,

at *3; Silguero ex rel. T.S. v. Rio Hondo Indep. Sch.,

No. 1:18–CV-128, 2019 WL 13261515, at *5-6 (S.D.

Tex. Jan. 2, 2019); see also Vardeman v. City of

Houston, No. H- 20-3242, 2022 WL 267591, at *1 n.1

(S.D. Tex. Jan. 28, 2022), aff’d in part and rev’d in

part on other grounds by 55 F.4th 1045 (5th Cir.

2022). This Court agrees. Texas’s irrevocableelection principle is a substantive rule that is

outcome-determinative and would undermine the

twin aims of the Erie doctrine if not applied in federal

court.

At first blush, Section 101.106’s irrevocableelection principle and its resulting nullification of

subsequent efforts to amend may seem to sound in

procedure, particularly as the Federal Rules of Civil

Procedure address amending pleadings and direct a

court to “freely give leave [to amend] when justice so

requires.” See Fed. R. Civ. P. 15(a). And in federal

court, “[a]n amended complaint supersedes the

original complaint and renders it of no legal effect

unless the amended complaint specifically refers to

and adopts or incorporates by reference the earlier

pleading,” so a plaintiff generally can adopt a new

legal theory or alter a previous one, at least at an

early stage in the proceedings. See King v.

Dogan, 31 F.3d 344, 346 (5th Cir. 1994); Mayeaux v.

La. Health Sci. & Indem. Co., 376 F.3d 420, 427 (5th

Cir. 2004). In contrast, Section 101.106 creates a strict

requirement that a plaintiff must carefully make a

final decision prior to filing as to her selected tort

liability theory, limiting her ability to cure certain

App. 56

deficiencies through amendment. See Rios, 542

S.W.3d at 536–38.

But simply because the rule relates to

pleadings and amendments does not dictate that it is

procedural under Erie. See Hanna, 380 U.S. at 465–

66. For one, Section 101.106 does not actually prohibit

a plaintiff from amending her complaint nor does it

alter the procedures surrounding amendment; it

simply prevents an amendment from nullifying an

employee’s statutory right to dismissal based on

immunity. See Rios, 542 S.W.3d at 537–38. It

therefore does not conflict with the Federal Rules of

Civil Procedure themselves, though it does conflict

with the standard federal principle of the impact of

amended pleadings. See Dogan, 31 F.3d at 346. So this

is not a case where the state law automatically does

not apply because a valid “Federal Rule of Civil

Procedure answers the same question as the state law

or rule.” Klocke v. Watson, 936 F.3d 240, 244 (5th Cir.

2019) (cleaned up) (quoting Abbas v. Foreign Policy

Grp., 783 F.3d 1328, 1333 (D.C. Cir. 2015)).

Instead, the Court must consider whether the

irrevocable-election rule would implicate the “twin

aims of the Erie rule: discouragement of forumshopping

and

avoidance

inequitable

administration of the laws.” Hanna, 380 U.S. at 468

(emphasis added); Walker v. Armco Steel Corp., 446

U.S. 740, 745, 752–53 (1980). Ultimately, this

analysis is rooted in the belief that it is unfair for the

result of a lawsuit to materially differ because it was

brought in federal court. Hanna, 380 U.S. at 467. If

Section 101.106’s irrevocable- election principle did

not apply in federal court, such material differences

in litigation between a TTCA claim in state and

App. 57

federal court would arise. See id. As Rios

demonstrates, it is indisputable that Wells’s claims of

intentional infliction of emotional distress,

fraudulent concealment, and defamation per se would

be permanently barred against the professors based

on her election in her original complaint. See Rios,

542 S.W.2d at 536–38. Her decision to bring the

claims based on their official capacity would shield

them from the costs and burdens of litigation by

making them immune from suit, and this protection

could not be removed by subsequent attempts to

amend after the proper Section 101.106(e) dismissal

request is made. Id. However, without this rule, the

professors—or

other

similar

government

employees—would have to address dueling theories

of liability or at least the possibility that a plaintiff

would rethink the initial tort theory after dismissal is

sought.

The defendants’ inability to obtain the

immunity to which they would be entitled in state

court is a substantial consequence that would result

in inequitable administration of the laws, which leads

the Court to apply Section 101.106’s irrevocableelection requirement.

See Walker, 446 U.S. at 753. Given the sovereign

immunity overlay to the TTCA, permitting such

claims to proceed in federal court would be

particularly harmful. After all, the TTCA does not

waive Texas’s sovereign immunity to suit in federal

court. Sherwinski v. Peterson, 98 F.3d 849, 852 (5th

Cir. 1996). So TTCA claims against Texas, its

subcomponents, and its employees in their official

capacity are subject to dismissal in federal court. See

id. at 851–52. Accordingly, allowing these

amendments to evade Section 101.106(e) dismissal

App. 58

despite a plaintiff’s previous indication that the

claims at issue are truly against Texas would allow

further litigation in the very forum where Texas and

its employees generally have no obligation to respond

to such claims. See Rios, 542 S.W.3d at 536–37;

Sherwinski, 98 F.3d at 851–52. Even in state court,

the only immunity waiver applicable to officialcapacity claims applies when they are asserted

against the employer— an employee may assert his

immunity and require dismissal or substitution of his

employer, or, as here, the employer may demand

dismissal of the claims against its employees. See

Sherwinski, 98 F.3d at 851–52; Tex. Civ. Prac. &

Rem. Code §§ 101.102, 101.106. It would be

inequitable to deny immunity that a government

employee would have in state court when the state

court is ordinarily the only forum where sovereign

immunity as to these claims is partially waived. And

it would improperly “give [the cause of action] longer

life in the federal court than it would have had in

state court.” Walker, 446 U.S. at 746 (alteration in

original) (quoting Ragan v. Merchs. Transfer &

Warehouse Co., 337 U.S. 530, 533–34 (1949)). In state

court, these tort claims against the professors in their

individual capacity would have been forfeited upon

filing of the original complaint. The mere fortuity of

being in federal court should not resurrect these

claims.

Accordingly, this Court follows the trend of

other federal district courts in Texas and applies the

irrevocable-election rule. See Arismendez, 2020 WL

977231, at *4; McLemee, 2021 WL 2535945, at *3;

Silguero ex rel. T.S., 2019 WL 13261515, at *5-6;

Vardeman, 2022 WL 267591, at *1 n.1. Consequently,

Wells’s original pleading of these claims against both

App. 59

the defendants and Texas Tech signified that she

brought them in their official capacity and made them

subject to dismissal under Section 101.106(e). Texas

Tech sought such dismissal, Dkt. No. 15 at 5, and her

subsequent amendment is futile because she cannot

alter her irrevocable election made at the time she

filed this case. Rios, 542 S.W.3d at 536–

38. The Court therefore dismisses the claims of

intentional infliction of emotional distress,

fraudulent concealment, and defamation per se

against the individual defendants pursuant to the

Section 101.106(e) dismissal request made in the

original motions to dismiss. See Dkt. No. 15 at 5.

ii.

Wells’s other tort claims—

unjust enrichment, breach of

fiduciary duty, trade secret

misappropriation, and tortious

interference with contractual

relations—must

also

dismissed.

Wells also asserts four additional tort claims

against the professors: tortious interference and trade

secret misappropriation against Prien; and unjust

enrichment and breach of fiduciary duty against Prien

and Penrose. Dkt. No. 19 ¶¶ 169–79, 188–210. To the

extent these claims are not subject to dismissal under

Section 101.106(e), they are dismissed under Section

101.106(f).

First, as to subsection (e), while these claims

were not clearly alleged against Texas Tech in the

original complaint, Dkt. No. 1 ¶¶ 167–74, 187–94,

they are still barred under the irrevocable election to

App. 60

the extent they arise from “the same subject matter

as the action brought against the governmental

entity.” Williams v. Bolin, No. H-23-302, --- F. Supp.

3d.----, 2023 WL 6282834, at *8–9 (S.D. Tex. Sept. 26,

2023) (quoting Holland v. City of Houston, 41 F. Supp.

2d 678, 717 (S.D. Tex. 1999)); White v. Texas, No.

4:23-cv-925-P, 2023 WL 8074126, at *8 (N.D. Tex.

Nov. 21, 2023) (citing Goodman v. Harris County, 571

F.3d 388, 394 (5th Cir. 2009)), appeal filed, No. 2311190 (5th Cir. Nov. 27, 2023). Thus, even if these

specific claims were brought only against the

professors, any aspect of these claims that rely on the

same substantive facts as those tort claims originally

brought against Texas Tech are also subject to

dismissal under Section 101.106(e). 7 See White, 2023

Wells’s original unjust enrichment and breach of fiduciary duty

claims are particularly unclear as to their original basis and

original defendants. See Dkt. No. 1 ¶¶ 187–99. For the unjust

enrichment claim, she refers to “[d]efendants” generally rather

than specifying who “knowingly accepted the benefit” at issue.

Id. ¶¶ 187–90. Given that this claim pertains the patent and its

royalties, Texas Tech’s ownership of the patent and the

inclusion of Texas Tech in the original patent claims suggests

that Texas Tech was originally a defendant as to this claim. See

id. ¶¶ 160–66, 187–90.

Wells also asserted breach of fiduciary duty claims against both

Texas Tech and the professors. Id.

¶¶ 191–99. Given that the fiduciary duties claimed to be owed

to Wells result from different relationships, these could

conceivably arise from separate events. See id. But Wells’s

claim lacks any specification as to the particular facts at issue,

creating a substantial likelihood that the substantive facts for

both claims arise from the same subject matter. Moreover,

these claims appear to be substantially related to the fraudulent

concealment claims. See id. ¶¶ 187–210; Dkt. No. 19 ¶¶ 200–

08. The Court need not parse these claims further because

these claims are barred by other portions of Section 101.106

App. 61

WL 8074126, at *8; Rios, 542 S.W.3d at 536–38; Dkt.

No. 15 at 5.

Second, “[i]f a suit is filed against an employee

of a government unit based on conduct within the

general scope of that employee’s employment and if it

could have been brought under [the TTCA] against

the government unit, the suit is considered to be

against the employee in the employee’s official

capacity only.” Tex. Civ. Prac. & Rem. Code

§ 101.106(f). This provision is a corollary to

subsection (e): it requires dismissal of the claims

against the employee and of the claims altogether

unless the governmental entity is made a defendant.

See id.; Franka v. Velasquez, 332 S.W.3d 367, 380

(Tex. 2011). This provision favors “quickly

dismiss[ing] government employees when the suit

should be brought against their employer,” and the

Section 101.106 inquiry must avoid “partial litigation

of the underlying [tort] claim itself.” Laverie v.

Wetherbe, 517 S.W.3d 748, 755 (Tex. 2017).

Section 101.106(f)’s application is broad: its

“two conditions are met in almost every negligence

suit against a government employee.” Franka, 332

S.W.3d at 381. All claims “in tort and not under

another statute that independently waives immunity”

are claims that “could have been brought under” the

TTCA, even if the TTCA does not waive immunity

against the governmental entity. See id.; Garcia, 253

S.W.3d at 659–60; Tex. Civ. Prac. & Rem. Code §

101.106(f). Thus, though a plaintiff cannot use the

TTCA to bring an intentional tort claim against the

regardless of whether subsection (e) applies.

App. 62

governmental entity, such intentional tort claims still

are “under” the TTCA for purposes of Section 101.106.

Garcia, 253 S.W.3d at 658–69; see also Tex. Civ. Prac.

& Rem. Code. § 101.057. And “the scope-ofemployment inquiry under Section 101.106(f) focuses

on whether the employee was doing his job,” asking

only whether “a connection exists between the

employee’s job duties and the alleged tortious

conduct.” Garza v. Harrison, 574 S.W.3d 389, 394

(Tex. 2019) (cleaned up) (quoting Laverie, 517 S.W.3d

at 753).

Importantly, an employee does not need to have

the specific authority to commit the tort at issue so

long as he was generally discharging assigned duties.

Richardson v. Univ. of Tex. Sys., No. 5-19-CV-271-XR,

2019 WL 5306782, at *3 (W.D. Tex. Oct. 18, 2019); see

also City of Lancaster v. Chambers, 883 S.W.2d 650,

658 & n.9 (Tex. 1994). And the mere fact that “an

official’s act is unlawful does not determine whether

that act is within the scope of his employment.” Smith

v. Heap, 31 F.4th 905, 914 (5th Cir. 2022). So a claim

that the official “stepped outside of his official duties

by engaging in malicious conduct” does not remove

Section 101.106(f)’s immunity. Id. (cleaned up).

Moreover, the mere fact that personal motives played

a role in the employee’s decision does not mean that

he acted outside the scope of his employment.

Anderson v. Bessman, 365 S.W.3d 119, 126 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). In other

words, “the employee’s state of mind, motives, and

competency are irrelevant so long as the conduct itself

was pursuant to the employee’s job responsibilities.”

Garza, 574 S.W.3d at 401. Ultimately, so long as the

acts are “of the same general nature as the conduct

authorized or incidental to the conduct authorized,”

App. 63

they are within the scope of employment. Wilkerson

v. Univ. of N. Tex., 878 F.3d 147, 159 (5th Cir. 2017)

(emphasis in original) (quoting Laverie, 517 S.W.3d at

753).

It is undisputed that Prien and Penrose are

government employees and that all of these tort

claims could have been brought under the TTCA

against Texas Tech. See Dkt. Nos. 19 ¶¶ 18–19; 34 at

3–5; Franka, 332 S.W.3d at 381; Garcia, 253 S.W.3d

at 659–60. The sole issue is whether they were acting

within the scope of their employment when this

allegedly tortious conduct occurred. See Dkt. Nos. 25

at 9–11; 34 at 3–5. The Court concludes that they

were, and, as a result, dismisses these claims

pursuant to Section 101.106(f).

As a preliminary matter, Wells appears to be

under the mistaken belief that her own factual

allegations are an insufficient basis to apply Section

101.106 and instead the defendants must provide

summary judgment evidence for immunity to apply.

See Dkt. No. 34 at 4. But courts routinely resolve

such Section 101.106 immunity claims in favor of

governmental employees based solely on the

complaint’s allegations. E.g., Smith, 31 F.4th at 910,

913–14; Jackson v. Tex. S. Univ., 31 F. Supp. 3d 884,

886, 888–89 (S.D. Tex. 2014); Wheeler v. Law Off. of

Frank Powell, No. 01-22-479-CV, 2023 WL 5535670,

at *2–3, 10–11 (Tex. App.—Houston [1st Dist.] Aug.

29, 2023). If the facts alleged giving rise to the claim

show that the conduct at issue is connected to the

employee’s job responsibilities, Section 101.106(f)

applies and requires dismissal. E.g., Jackson, 31 F.

Supp. 3d at 888–89.

App. 64

Here, each of the claims at issue arise from

conduct

connected

the

professors’

job

responsibilities. As a preliminary matter, all of these

claims arise from Wells’s interactions with the

professors through Texas Tech, whether through

research or the mentorship program. See generally

Dkt. No. 19. When claims “all arise from

communications and interactions with the individual

[d]efendants at [the university],” that demonstrates

that the actions at issue were within the scope of their

employment. See Hundall v. Univ. of Tex. at El Paso,

No. EP-13-CV-365-DCG, 2014 WL 12496895, at *12

(W.D. Tex. Feb. 21, 2014). For example, a physical

assault by a professor was within the scope of his

employment because the assault occurred while the

professor was proctoring an exam. Jackson, 31 F.

Supp. 3d at 887–88. As in Jackson, the actions

underlying each of Wells’s tort claims are tied to the

professors’ general job duties and arise in the context

of her interactions with them in their employment.

Moreover, the tortious interference and trade

secret misappropriation claims against Prien are

connected to Prien’s role as a mentor in the

Accelerator program, which was part of his job as a

professor at Texas Tech. See Dkt. No. 19 ¶¶ 78–79,

96–98, 169–78. Wells specifically alleges that the

information at issue was disclosed by her to Prien

during discussion “in the [Texas Tech] Accelerator

Mentor program.” Id. ¶ 96. His alleged wrongful

disclosure related to a presentation at the annual

ASRM conference. Id. ¶¶ 96–100. Based on his duties

as a Texas Tech professor of reproductive physiology,

Prien routinely attends and presents research at this

conference, which is exactly what the alleged

App. 65

wrongful disclosure in his abstract of his research

presentation entailed. See id. ¶¶ 18, 38, 44, 51, 57, 72,

96–100. Wells’s conclusory claim that these actions

were in bad faith and outside the scope of his

authority provide no reason to ignore the clear factual

allegations giving rise to the claims that refute her

assertions. See Smith, 31 F.4th at 914. And the

wrongfulness of the disclosure or malicious motives

are irrelevant. Garza, 574 S.W.3d at 401. Again, a

defendant’s actions exceed the scope of his

employment only when “the alleged misconduct ha[s]

nothing to do with the employee’s duties.” Wilkerson,

878 F.3d at 160. Obtaining information about the

research Wells and her company were conducting

through his work as a mentor in the Accelerator

program and giving presentations at the annual

conference are of the general nature of Prien’s job

responsibilities as a professor, making this conduct

within the scope of his employment and therefore

covered by Section 101.106(f). See Wilkerson, 878

F.3d at 159–60; Jackson, 31 F. Supp. 3d at 887–88.

As for the unjust enrichment and breach of

fiduciary duty claims against Penrose and Prien,

these claims also arise from the scope of their

employment. These claims are based on patented

inventions that, as alleged, resulted from Wells’s work

with the professors in their labs and conversations

with them related to that research during her time as

a student. See Dkt. No. 19 ¶¶ 47–50, 53, 76, 101, 188–

97. Such claims would clearly not exist without these

actions within the scope of their work as professors.

Wells’s claims arise from their alleged relationship as

co-inventors which was created through these

interactions while the professors were carrying out

App. 66

their job duties. Id. ¶¶ 190–91, 194. Also, the revenue

and royalty issues clearly stem from Texas Tech’s

policies and the arrangement that Prien need to

submit to the university as part of obtaining a patent.

See id. ¶¶ 49, 76. From these allegations, it is evident

that the actions giving rise to these claims pertain to

the individual defendants’ work as professors and

their responsibilities related to research, interactions

with students, and arranging royalty shares for

patent inventions derived from their research. See id.

¶¶ 47–50, 53, 76, 101, 188–97. To the extent the

nondisclosure of the specifics of the arrangement or

the arrangement itself harmed Wells, this arises from

the research and conversations leading to the patent

and the manner in which they determined and

submitted the royalty information to Texas Tech—

conduct within the scope of their employment.

Accordingly, these claims also must be dismissed

under Section 101.106(f).

In sum, all of Wells’s tort claims are subject to

dismissal under Section 101.106 either because she

irrevocably elected to pursue them against the

professors in their official capacity, or the factual

allegations make clear that such actions arise from

their official duties, making them immune. The Court

therefore dismisses Wells’s tort claims.

Statutory

Trade

Misappropriation Claim

Secret

Next, to the extent Wells is also asserting a

statutory trade secret misappropriation claim based

on the Texas Uniform Trade Secrets Act (TUTSA),

App. 67

the Court also dismisses this claim. 8 Wells’s

amended complaint does not plausibly allege that she

owned any trade secret that was misappropriated.

To state a TUTSA claim, a plaintiff must allege

that “(1) a trade secret existed, (2) the trade secret was

acquired through a breach of a confidential

relationship or discovered by improper means, and (3)

the defendant [disclosed or] used the trade secret

without authorization from the plaintiff.” See CAE

Integrated, LLC v. Moov Techs., Inc., 44 F.4th 257,

262 (5th Cir. 2022) (emphasis omitted) (quoting GE

Betz, Inc. v. Moffitt-Johnston, 885 F.3d 318, 325 (5th

Cir. 2018)); Well Cell Global LLC v. Calvit, No. H-223062, 2024 WL 709657, at *5 (S.D. Tex. Feb. 21, 2024);

Tex. Civ. Prac. & Rem. Code § 134.002(3). The statute

defines a trade secret as

all forms and types of information,

including business, scientific, technical,

economic, or engineering information,

and any formula, design, prototype,

Wells’s amended complaint does not provide any indication

that she is bringing a TUTSA claim. Dkt. No. 19 ¶¶ 174–79.

She does not cite or otherwise reference it in the complaint.

See generally id. Nevertheless, both parties address the trade

secret claim as under tort and the TUTSA. Dkt. Nos. 25 at

8–10, 16–18; 34 at 5, 7–8. Given that the TUTSA preempts

other state remedies based on trade secret misappropriation,

such as any tort claims based on facts related to

misappropriation, it does not seem that she could bring a

trade secret misappropriation claim on any state law basis

other than the TUTSA. See Tex. Civ. Prac. & Rem. Code §

134A.007; Baylor Scott & White v. Proj. Rose MSO, LLC, 633

S.W.3d 263, 287 n.14 (Tex. App.—Tyler 2021, no pet.).

App. 68

pattern, plan, compilation, program

device, program, code, device, method,

technique, process, procedure, financial

data, or list of actual or potential

customers or suppliers, whether tangible

or intangible and whether or how stored,

compiled, or memorialized physically,

electronically,

graphically,

photographically, or in writing if:

(A) the owner of the trade secret has

taken reasonable measures under the

circumstances to keep the information

secret; and

(B) the information derives independent

economic value, actual or potential, from

not being generally known to, and not

being readily ascertainable through

proper means by, another person who

can obtain economic value from the

disclosure or use of the information.

Tex. Civ. Prac. & Rem. Code § 134A.002(6).

Importantly, a plaintiff must actually own the alleged

trade secret at issue. E.g., Morris-Shea Bridge Co. v.

Cajun Indus., LLC, No. 3:20-cv- 342, 2021 WL

4084516, at *7 (S.D. Tex. Feb. 22, 2021); Penthol, LLC

v. Vertex Energy Operating, LLC, No. 4:21-cv-416,

2024 WL 987568, at *12 (S.D. Tex. Mar. 7, 2024).

Wells’s amended complaint fails to identify any

trade secret that she owned that was allegedly

misappropriated by Prien. She argues that she has

alleged a trade secret based on “the information

subject to her agreement with Simplot.” Dkt. No. 34

App. 69

at 8. But, for a litany of reasons, she has not plausibly

alleged that she can bring a trade secret

misappropriation claim based on this data. For one,

her own allegations demonstrate that, assuming a

trade secret existed, it belongs to her past or present

companies, not to her. See Dkt. No. 19 ¶¶ 81–82, 87,

95–99, 175. The only factual allegations related to an

“agreement with Simplot” is that of her now-defunct

company Embryotics, which “had an existing nondisclosure agreement in place with Simplot.” Id. ¶¶

81, 97. Without ownership of the trade secret, Wells

cannot sue for any alleged misappropriation. See

Morris-Shea Bridge Co., 2021 WL 4084516, at *7. And

even if Wells were the proper owner of the supposed

trade secret, she has not alleged how “the owner of the

trade secret has taken reasonable measures under the

circumstances to keep the information secret.” See

Tex. Civ. Prac. & Rem. Code § 134A.002(6) (emphasis

added). Instead, by her own claims, she provided the

information to Prien without any agreement between

him and her or her companies to maintain the secrecy

of the information. See Dkt. No. 19 ¶¶ 96–98. She cites

other agreements between her companies and Simplot

and

Prien

and

other

entities

regarding

confidentiality, but no measure that she—the

putative owner of the secret—took. Id. Her mere

reliance on other entities’ secrecy efforts makes it

implausible that she took reasonable measures to

ensure secrecy given that her allegations indicate that

she took no actions at all.

Independent of these problems, Wells’s

allegations also fail to adequately allege a trade secret

in the first place. A trade secret must be identifiable

and “derive[] independent economic value, actual or

potential, from not being generally known.” Tex. Civ.

App. 70

Prac. & Rem. Code § 134A.002(6). Wells does not

properly identify a trade secret or explain how it

derives economic value from not being generally

known. While a plaintiff does not need to provide a

specific description of the trade secret, GlobeRanger

Corp. v. Software AG USA, Inc., 836 F.3d 477, 493

(5th Cir. 2016), her “definition of a trade secret cannot

be too vague or inclusive,” Utex Indus., Inc. v.

Wiegand, No. H-18-1254, 2020 WL 873985, at *10

(S.D. Tex. Feb. 21, 2020). At minimum, a plaintiff

must “identify specific groupings of information that

contain trade secrets, identify the types of trade

secrets contained in the groupings, and explain how

the alleged trade secrets were maintained and treated

as trade secrets.” Vianet Grp. PLC v. Tap Acquisition,

Inc., No. 3:14-CV-3601-B, 2016 WL 4368302, at *20

(N.D. Tex. Aug. 16, 2016). Wells’s amended complaint

merely identifies the information as “data from her

research as part of Embryotics and EmGenisys.” Dkt.

No. 19 ¶ 175. This definition is incredibly vague and

overinclusive. It provides no “specific groupings of

information” and does not identify how this data has

any economic value. Cf. Vianet Grp. PLC, 2016 WL

4368302, at *19–20 (finding sufficient identification of

a trade secret based on identified specific documents

and explanation of the information contained within

and the economic value of it). The only allegation

giving any indication of value is that “Embryotics

covered all the expenses” for research related to this

data. Dkt. No. 19 ¶ 81. This is a far cry from typical

sufficient allegations explaining the significant

expense and time of obtaining the secret and the

competitive advantage its secrecy provides. See, e.g.,

Vest Safety Med. Servs., LLC v. Arbor

Environmental, LLC, No. H-20-812, 2020 WL

4003642, at *4 (S.D. Tex. July 15, 2020); Vianet Grp.

App. 71

PLC, 2016 WL 4368302, at *19. Instead, it is a broad

description that “fails to point to specificities that

convey the unique capabilities of the [research]” and

is therefore insufficient. WeInfuse, LLC v.

InfuseFlow, LLC, No. 3:20-CV-1050-L, 2021 WL

1165132, at *3 (N.D. Tex. Mar. 26, 2021).

In light of the foregoing, the Court dismisses

Wells’s TUTSA claim as well because she has not

plausibly alleged that she owned any trade secret.

Her allegations reveal that the information at issue

belonged to her companies and are too conclusory to

properly identify a trade secret.

Equal Protection Claim

Finally, Wells asserts a claim under 42 U.S.C.

§ 1983 that Prien and Penrose violated the Equal

Protection Clause of the Fourteenth Amendment. Dkt.

No. 19 ¶¶ 150–59. The Court dismisses this claim as

well.

Section 1983 provides a cause of action when a

person, acting under color of a State law, “subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42

U.S.C. § 1983. While “state officials literally are

persons,” when sued in their official capacity, they

are not “persons” under Section 1983 because they

are mere stand-ins for a State itself. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989). The

defendants assert that they are immune because she

has sued them in their official capacity, and they

therefore do not count as “persons” under Section

App. 72

1983. Dkt. No. 25 at 11. Wells does not dispute that

she has sued these defendants in their official

capacity for the Section 1983 claim. Dkt. No. 34 at 6.

Nevertheless, Wells argues that the claim is

not barred because “she alleges ongoing violations of

federal law.” Id. Since “official-capacity actions for

prospective relief are not treated as actions against

the State,” an official is a “person” under Section 1983

when a plaintiff seeks injunctive relief. Will, 491 U.S.

at 71 n.10. For this theory to be viable, her “lawsuit

must allege that the defendants’ actions are currently

violating federal law,” not “a prior violation of federal

law.” Williams ex rel. J.E. v. Reeves, 954 F.3d 729,

737 (5th Cir.

2020) (emphasis in original). But Wells’s own

amended complaint belies any argument that this

claim is based on an ongoing violation. Dkt. No. 19 ¶¶

150–59. Each portion of her Section 1983 claim points

to past harassment—none is forward-looking:

152. Dr. Prien and Dr. Penrose subjected

Dr. Wells to the foregoing harassment

and adverse actions because of her sex.

153. The harassment and differential

treatment Dr. Prien and Dr. Penrose

subjected Dr. Wells to did not serve any

compelling state interest or government

objective.

154. Dr. Prien and Dr. Penrose did not

have a rational basis for discriminating

against Dr. Wells that was linked to a

legitimate government interest.

App. 73

155. Dr. Prien and Dr. Penrose were

motivated by animus towards Dr. Wells

because of her sex.

156. Dr. Prien and Dr. Penrose deprived

Dr. Wells of her right to Equal Protection

violation

the

Fourteenth

Amendment of the Constitution of the

United States and 42 U.S.C. §1983.

157. Dr. Prien and Dr. Penrose acted

intentionally,

with

deliberate

indifference or callous disregard for Dr.

Wells’ right to Equal Protection in

violation of the Fourteenth Amendment

of the Constitution of the United States

and 42 U.S.C. §1983.

158. As a direct and proximate result of

Dr. Prien and Dr. Penrose’s violation of

the equal protection guarantee of the

Fourteenth Amendment as set forth in

this complaint, Dr. Wells suffered

irreparable harm, including loss of her

fundamental

constitutional

rights,

entitling her to relief against Dr. Prien

and Dr. Penrose.

Id. ¶¶ 152–58 (emphasis added).

Nor do her factual allegations plausibly

indicate any ongoing harassment. See generally id.

There are no claims of current or future interactions

App. 74

between the professors and Wells. 9 Id. The last dated

factual allegation regarding Penrose pertains to a

meeting on August 19, 2019. Id. ¶ 93. And there is no

indication of any possible harassment by Penrose

after that time. See generally id. As for Prien, there

are no factual allegations related to possible

harassment or discrimination by him after he emailed

the “Time to Move on Song” about Wells at some point

in May or June 2022. See id. ¶¶ 108–10. By her own

account, Wells has not been involved with anything

at Texas Tech since June 2022, besides other

university representatives attempting to speak to her

about her claims. Id. ¶¶ 112, 116. Wells has provided

no plausible basis to infer that she is facing ongoing

violations of her federal rights.

Moreover, Wells’s assertion that her request for

declaratory relief saves her claim is also meritless.

See Dkt. No. 34 at 6. The mere fact that a declaratory

judgment would be awarded in the future does not

make it prospective relief. Instead, she asks the Court

to provide—as explicitly stated in her amended

complaint—“declaratory relief finding that Dr. Prien

and Dr. Penrose violated Dr. Wells’ [c]onstitutional

right to Equal Protection.” Dkt. No. 19 ¶ 159

(emphasis added). This amounts to a request for a

“declaratory judgment[] expressly adjudicating the

question of past violations” and is the exact kind of

retrospective relief that the Court cannot order

against the State or its officials acting in their official

capacity absent a waiver of sovereign immunity.

Green v. Mansour, 474 U.S. 64, 67–68, 73– 74 (1985);

Williams ex rel. J.E., 954 F.3d at 737. Accordingly,

9 Much less ones occurring under color of state law.

U.S.C. § 1983.

See 42

App. 75

Wells has failed to allege a cognizable Section 1983

claim against the professors.

Conclusion

In sum, the Court grants the original motions

to dismiss (Dkt. Nos. 15; 16) as to Wells’s tort claims

that are barred by Section 101.106(e), denies them as

moot as to the other claims, and grants in full the

new motions to dismiss (Dkt. Nos. 24; 25). While

Wells has requested leave to amend, Dkt. Nos. 34 at

8–9; 35 at 9, the Court denies her request. Given the

litany of problems with each of her claims and the

fact that many of these defects are immunity or

statute-of-limitations issues that cannot be cured by

amendment, amendment would be futile. She has

given no indication of how she would fix any defect,

and she has already amended her complaint

following the defendants’ first motions to dismiss,

which outlined many of these issues. Wells is not pro

se, and there is no reason to think she has not already

pled her best case. For these reasons, the Court

dismisses all of Wells’s claims with prejudice.

So ordered on May 7, 2024.

JAMES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

App. 76

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

CASE NO. 23-cv-00060-H

JURY TRIAL DEMANDED

[Filed on June 22, 2023]

CARA WESSELS WELLS,

Plaintiff,

TEXAS TECH UNIVERSITY, SAMUEL PRIEN,

LINDSAY PENROSE, et. al.

Defendants.

PLAINTIFF’S FIRST AMENDED COMPLAINT

Plaintiff (“Dr. Wells” or “Plaintiff”) files this,

her original complaint against Texas Tech University

(“TTU,” or “the University”), Dr. Samuel D. Prien

(“Dr.

Prien”),

and

Dr.

Lindsay

Penrose

(“Dr.

Penrose,” and collectively “Defendants”), as follows:

App. 77

I. PRELIMINARY STATEMENT

its

University

commitment

mission

highlights

statement,

the

education,

Texas

Tech

institution’s

alleged

ethics

student

and

success. It reads, “As a public research university,

Texas Tech advances knowledge through innovative

and creative teaching, research and scholarship. The

university is dedicated to student success by

preparing learners to be ethical leaders for a diverse

and globally competitive workforce. The university is

committed to enhancing the cultural and economic

development of the state, nation and world.”

Unfortunately, Dr. Cara Wells’ experiences at

TTU stand in stark contrast to these principles. Over

the course of more than a decade, Dr. Wells was

sexually harassed and degraded at the hands of her

professor, Dr. Samuel Prien, aided by his associate,

Dr. Lindsay Penrose. Threatened by Dr. Wells’

App. 78

academic success—and later, business acumen—Dr.

Prien and Dr. Penrose soon made it their mission to

“put Dr. Wells in her place.” Their campaign against

her involved taking credit for her work, interfering

with her job prospects, and pursuing financial

opportunities to which they were not entitled. When

Dr. Wells reported their behavior to TTU, the

University failed to investigate her accusations, offer

her

protection

from

Dr.

Prien,

honor

its

commitment with respect to patents that she created

and owns.

At the outset, Dr. Wells viewed the chance to

participate in TTU’s Agricultural Department, under

the direction of Dr. Prien and Dr. Penrose, as an

exciting opportunity to conduct important research

and launch her career in animal science.

Even during her early days in the program,

Dr. Wells’ experience was sexualized and gendered.

App. 79

Indeed, Dr. Prien often “showed off” the young and

then-inexperienced Dr. Wells around to his peers at

industry conferences and events.

However, as Dr. Wells began to exhibit signs of

independence and receive recognition on her own

well-earned successes, Dr. Prien, who is frequently

accused of misconduct by his students, used his

position of power to initiate a campaign to bring Dr.

Wells into submission.

During her tenure at TTU, Dr. Prien and Dr.

Penrose subjected Dr. Wells to a constant barrage of

harassment and a hostile educational environment.

The

misconduct

perpetrated

the

professors

included forcing a young Dr. Wells—on numerous

occasions—to share hotel rooms with Dr. Prien and

Dr. Penrose when they traveled for academic

conferences. After Dr. Wells attempted to politely

decline those experiences—which she should have

App. 80

never had to endure—the ridicule and humiliation

delivered by Dr. Prien and Dr. Penrose ranged from

belittling comments about her clothing choices to

comments questioning her dedication and talent.

To add insult to injury, Dr. Prien and Dr.

Penrose took advantage of Dr. Wells’ academic and

commercial achievements. Beginning with her time

as an undergraduate research assistant, Dr. Wells

did not receive credit for her contributions to

technological innovations, patents, and academic

research. Dr. Wells was made to believe that she was

simply “paying her dues” as a student researcher. In

reality, she was being denied credit she was due.

TTU failed to protect her from these harms.

Having excelled as an undergraduate, Dr.

Wells returned to TTU as a PhD candidate. She

looked forward to making major contributions in her

lab studies, and she held out hope that she would

App. 81

finally be treated with respect. Unfortunately, she

soon learned that the mistreatment would only

worsen. She had no choice, given the required

pathway to professional success.

As a PhD student, Dr. Penrose took credit for

more of Dr. Wells’ work, including an important

embryo technology patent. As the mistreatment

exacerbated, it became clear that Dr. Prien felt some

sense of entitlement to insert himself into all aspects

of Dr. Wells’ life, including the personal and social

aspects of it.

10.

Dr. Prien made it his mission to sabotage her

newly emerging career, even going so far as to

attempt to block her from obtaining post-graduation

employment.

11.

Nevertheless,

after

she

completed

her

doctorate at TTU, Dr. Wells founded her first

company. She returned to TTU—the community

App. 82

where she had invested years of her life— to seek

support. To Dr. Wells’ excitement, her company,

Embryotics, was accepted into TTU’s Accelerator

Program, a program that fosters and supports

entrepreneurs launching innovative startups. Soon

after, Dr. Wells founded a second company, called

EmGenisys. Dr. Wells embarked on exciting and

innovative research related to determining embryo

viability for creating pregnancy.

12.

Despite her obvious and well-earned success,

Dr. Wells was unable to rid herself of the continued

antagonistic behavior and meddling of Dr. Prien and

Dr. Penrose. Dr. Prien stole research from Dr. Wells

that he obtained as a result of a position of

confidence based on his role as a TTU Mentor. True

to form, he submitted that research for publication at

a conference for his own gain, a violation of several

ongoing non-disclosure agreements.

App. 83

13.

Despite her professors’ behavior, Dr. Wells

believed that she could rely on the resources and

support of TTU. Soon after, however, Dr. Wells

learned that Dr. Prien and Dr. Penrose had already

sowed seeds of distrust towards Dr. Wells within the

TTU

research

faculty,

making

unsubstantiated

accusations that Dr. Wells’ company’s technology was

stolen. Without a proper investigation, TTU accepted

the lies of Dr. Prien and Dr. Penrose and removed

Dr. Wells—without notifying her—from patents,

articles, and various TTU websites, where she had

previously been given recognition.

14.

Dr. Wells’ relationship with TTU ended in

2022 when, after being recruited to serve as a Mentor

to other TTU inventors, the school unceremoniously

fired her from the committee within the Accelerator

Hub. TTU subsequently sent out a defamatory

message to others in the TTU community forbidding

App. 84

them from contacting Dr. Wells or doing further work

with her.

15.

Dr.

Wells

has

dedicated

her

entire

adulthood to advanced and innovative research in

the space of reproductive sciences, and in particular,

the selection of embryos likely to be successful in in

vitro fertilization (IVF) transfer procedures for

humans and animals, alike. She is the exact type of

student, scholar, and businesswoman that any

professor or university would be proud to support

and encourage to return to provide mentorship and

expertise to the next generation of students. She

exhibits the traits and aspirational goals celebrated

in TTU’s mission statement. The harms perpetrated

by TTU and its senior faculty are serious, ongoing,

and must be remedied.

II. PARTIES

16.

Plaintiff Dr. Cara Wells is the founder and

App. 85

CEO of EmGenisys, Inc, a start-up biotechnology and

software company. She attended TTU for both her

bachelor’s degree and PhD, where she was a research

assistant during the years she was obtaining both of

her degrees.

17.

Defendant Texas Tech University (TTU) is

a public research university in Lubbock, TX.

18.

Defendant Dr. Samuel Prien (“Dr. Prien”)

is a professor of reproductive physiology at Texas

Tech Health Sciences Center (TTUHSC). He resides

in Shallowater, TX.

19.

Defendant

Dr.

Lindsay

Penrose

(“Dr.

Penrose”) is an associate professor at TTUHSC. She

resides in Lubbock, TX.

III. RELEVANT NONPARTIES

20.

Cameron Smith is a Texas-barred attorney

serving as the TTU System Commercialization

Director of the Office of Research Commercialization,

App. 86

which not only serves TTU, but also Angelo State

University, Texas Tech Health Sciences Center, and

the TTUHSC Paul L. Foster School of Medicine in El

Paso. He resides in Lubbock, TX.

21.

Dr. Joseph Heppert is the Vice President for

Research and Innovation at TTU. He resides in

Lubbock, TX.

22.

Kimberly Gramm is the Chief Innovation and

Entrepreneur Officer at Tulane University and

previously served as the vice president of innovation

and entrepreneurship at TTU. She resides in New

Orleans, LA.

23.

Dr. David Snow was the Executive Director of

the technology transfer office, where he focused on

intellectual property and licensing for all the TTU

System campuses. He is now the Executive Director

Technology

Ventures

the

University

Arkansas. He resides in Fayetteville, AR.

App. 87

24.

Julie Isom is the Associate Director for the

Center of Integration of STEM Education and

Research (CISER) at TTU. She resides in Idalou, TX.

25.

Taysha Williams is the Managing Director at

the Innovation Hub at Research Park and is in

charge of overall management of programming at the

Hub. She resides in Lubbock, TX.

IV. JURISDICTION AND VENUE

26.

This court has subject matter jurisdiction over

this action pursuant to 28 U.S.C. §1331, because

there are federal questions of law at issue, namely

violations of Title VII of the Civil Rights Act of 1964

(“Title

VII”)

and

Title

the

Education

Amendments of 1972 (“Title IX”). This court has

supplemental jurisdiction over Plaintiff’s related

claims arising under state and local laws pursuant to

28 U.S.C. §1367(a).

27.

This court has personal jurisdiction because

App. 88

Defendants

maintain

physical

offices

and

continuously conduct business in Lubbock, Texas.

28.

Venue is proper pursuant to 42 U.S.C.

§2000e-5(f)(3) because a substantial portion of the

unlawful acts giving rise to Plaintiff’s claims

occurred in Texas.

29.

Venue is proper pursuant to 28 U.S.C. §1391

because Defendants are deemed to reside in this

District and a substantial part of the events and

omissions giving rise to the claim occurred in this

District.

V. EXHAUSTION OF ADMINISTRATIVE

PROCEDURES

30.

Dr.

Wells

timely

filed

with

the

Equal

Employment Opportunity Commission (“EEOC”) a

charge of sex discrimination against Defendants. 1

31.

Dr. Wells received a Notice of Right to Sue

Attached hereto as Exhibit A is a true and correct copy of the

EEOC Charge of Discrimination, filed November 11, 2022.

App. 89

from the EEOC within 90 days of filing this

complaint. 2

VI. FACTUAL BACKGROUND

A. Dr. Wells Begins Her Academic Career at

TTU and Pursues Her Passion for

Animal Science.

32.

In 2009, Dr. Wells enrolled at TTU in the

Department of Animal and Food Sciences with hopes

of becoming a veterinarian.

Attached hereto as Exhibit B is a true and correct copy of

the Notice of Right to Sue, issued on December 22, 2022.

App. 90

33.

As a requirement for her degree in Animal

Science at TTU, Dr. Wells enrolled in Dr. Prien’s

course. As an extra credit assignment, Dr. Wells

attended an undergraduate research conference

where, much to her excitement, she fell in love with

animal science research and decided that she would

dedicate her undergraduate academic career to

researching complex and novel concepts in the field.

34.

At this time, Dr. Prien seemed to show an

interest in Dr. Wells’ work, so she scheduled a

meeting with him during office hours to discuss her

App. 91

interest in his research. After their initial meeting,

Dr. Prien accepted her as a research assistant in his

lab and helped her attain a research internship at

the Howard Hughes Medical Institute. Dr. Wells was

hopeful

that

the

scholastic

and

professional

relationship between them would flourish.

35.

Before beginning her work in the lab, Dr.

Prien warned Dr. Wells that she could not be “easily

offended” and that sexual humor was “part of the

job.” Dr. Wells brushed this off as Dr. Prien

awkwardly attempting to explain the nature of a

reproduction lab. Unfortunately, Dr. Wells would

soon learn that Dr. Prien was more than a “quirky”

science professor.

36.

It was also at this time that Dr. Wells met

Dr. Penrose, a senior female colleague of Dr. Prien.

Dr. Penrose had been a student of Dr. Prien’s during

her time as an undergraduate and was accepted into

App. 92

the TTUHSC by Dr. Prien. Dr. Penrose and her

family have both on occasions stated that they credit

Dr. Prien with Dr. Penrose’s life—a sentiment which

explains her unwavering support of Dr. Prien, at all

costs.

App. 93

37.

An early incident foreshadowed that Dr.

Penrose would not be an ally against Dr. Prien’s

inappropriate conduct, but rather an accomplice and

perpetrator of the harassment. One day working in

the lab, Dr. Wells had a disturbing encounter with

one of Dr. Prien’s colleagues, an older male

physician. He made inappropriate remarks to the

undergraduate Dr. Wells and even asked for her

phone number. When Dr. Wells confided her

discomfort in Dr. Penrose, rather than supporting

her or reporting the inappropriate conduct, Dr.

Penrose shockingly told Dr. Wells to actively pursue

the man, because he was a well-known doctor who

could “do good things” for Dr. Prien’s lab.

B. Persistent Harassment and Bullying by Dr.

Prien and Dr. Penrose Continues.

38.

In October 2012, Dr. Wells was invited to

present a poster at the annual American Society for

Reproductive Medicine (ASRM) meeting in San

App. 94

Diego, California. The ASRM conference is held in a

different city each year and brings together the top

experts in the industry to present cutting edge

research. In order to be eligible for the event,

presenters must submit new and original research.

Dr. Wells worked on her presentation for months and

was excited for the opportunity to showcase the

results of her hard work.

39.

Dr. Wells’ excitement soon turned to dread,

however, when Dr. Prien—much to Dr. Wells’

surprise—demanded that Dr. Wells share a hotel

room

with

him

and

Dr.

Penrose.

Being

undergraduate on a trip to an important event with

scholars she looked up to, Dr. Wells acquiesced to the

demand.

40.

At the conference, wanting to put her best foot

forward, Dr. Wells arrived dressed in business attire.

Looking disapprovingly at Dr. Wells’ attire, Dr.

App. 95

Penrose told Dr. Wells that “lab people wear jeans,”

and required that she, Dr. Prien, and Dr. Penrose

dress alike.

41.

In April 2013, Dr. Wells was selected by TTU

to represent the University at Undergraduate

App. 96

Research Week in Austin, Texas. Dr. Wells was

again required to share a hotel room with her

professors.

42.

That spring, Dr. Wells graduated from TTU

with a B.S. in Animal Science and moved to College

Station to attend Veterinary School at Texas A&M.

43.

After beginning veterinary school, however,

Dr. Wells realized that her true passion lied in

research, like the work she had done as an

undergraduate. She resolved to pursue a PhD. In fall

2013, Dr. Wells gained admission into TTU’s doctoral

program. Unfortunately, Dr. Prien served as the

program’s committee chair.

44.

In fall 2013, Dr. Wells attended the annual

ASRM conference in Boston, Massachusetts after

being asked to present the research she submitted

prior to graduating from TTU. She once again was

required to share a hotel room with Dr. Prien and Dr.

App. 97

Penrose.

45.

After being embarrassed and being made to

dress

unprofessionally

the

ASRM

conference, Dr. Wells followed her instincts and wore

a blazer (pictured here). Dr. Prien and Dr. Penrose

incessantly mocked Dr. Wells for her attire. The

comments intimidated Dr. Wells and caused her

mental distress.

46.

At the conference, an editor of Human

Reproduction, a peer-reviewed scientific journal,

approached Dr. Wells and offered to publish her

research in the journal. Without basis, but with

perceived authority, Dr. Prien told Dr. Wells that she

could not be the named first author on her own

research article and stated that he needed to be

listed as the author. He went on to say that this

would be the “biggest paper of his career,” and

viewed being listed as the first author as improving

App. 98

his chances of winning a grant. When the article was

published by the journal in September 2015, Dr.

Prien was listed as the first author. To Dr. Wells’

dismay and shock, Dr. Penrose was also listed as an

author – despite her complete lack of contribution

and no one having mentioned her potential inclusion

to Dr. Wells.

C. Dr. Wells returns to TTU to Pursue her PhD

and the Harassment Intensifies.

47.

In spring 2014, after leaving veterinary school,

Dr. Wells officially returned to TTU and resumed her

role in Dr. Prien’s lab.

48.

After months of work, on June 30, 2014, via

the University, Dr. Wells, Dr. Prien, and Dr. Penrose

filed Provisional Patent Application No. 62/019,034

entitled System and Method for Assessing Embryo

Viability. The concept behind the patent application

was Dr. Prien’s, but Dr. Wells did the hands-on work.

Dr. Wells’ contributions were innovative, and she

App. 99

was excited when she learned she would be included

as an inventor on the patent.

49.

Dr. Prien told Dr. Wells that TTU’s policy was

to give 40% of any revenue gained from the patent to

the inventors, 30% of the revenue to the department

from which the idea came, and 30% to the

institution. No one ever told Dr. Wells that the

revenue for the inventors would not be split evenly.

50.

Around that time, Dr. Wells served as a

teaching assistant to Dr. Prien’s class. As a result,

Dr. Prien and Dr. Wells often discussed ideas that

either of them might consider patentable. In one such

discussion, Dr. Wells brought up the original concept

for using embryo buoyancy to determine embryo sex

based on the fact that X chromosomes weigh more

than Y chromosomes.

51.

In fall 2014, the annual ASRM conference was

held in Baltimore, Maryland, and Dr. Wells was

App. 100

again required to sleep in a room with Dr. Prien and

Dr. Penrose.

52.

Following Dr. Wells’ presentation, numerous

scientists approached her to give praise. This

observably angered Dr. Prien and Dr. Penrose. Dr.

Penrose spent the remainder of the conference

bullying Dr. Wells. In one demeaning incident, Dr.

Penrose heated a cookie and then crumbled it onto

Dr. Wells bed while staring Dr. Wells in the eye. Dr.

Prien knew about the incident and did nothing to

remedy or address it.

53.

On June 30, 2015, the University, on behalf of

Drs. Prien, Penrose and Wells, filed international

patent

corresponding

application

PCT/US2015/038665

provisional

patent

application

62/019,034 filed June 30, 2014, and named all three

joint inventors of the disclosed technology. 3

Patent protection for the invention referred to as System and

App. 101

54.

By this time, Dr. Wells observed that Dr. Prien

had grown more possessive and controlling—and was

increasingly emboldened to behave inappropriately.

55.

Often self-righteous in tone, he lectured her

frequently about what he termed “morality.” Dr.

Prien attempted to make Dr. Wells feel guilty if she

was not, as he described it, on the “straight and

narrow.” He enjoyed finding “imperfections” in her

that he could exploit or ridicule. As a result, Dr.

Wells resolved to try her best to set boundaries with

Dr. Prien, keeping all conversations focused on

science. He did not respect those boundaries.

56.

In fall 2015, Dr. Prien sent a student to Dr.

Method for Assessing Embryo Viability was first-filed as US

Provisional Patent Application No. 62/019,034 on June 30,

2014. One year later, on June 30, 2015, the corresponding

international patent application PCT/US2015/038665 was filed

that claimed priority to the provisional patent application. Out

of the PCT application, US Patent Application No. 15/323,017

was filed (nationalized) on December 29, 2016. Each of these

three patent applications is entitled System and Method for

Assessing Embryo Viability and contains description of the

same invention(s).

App. 102

Wells’ home to monitor her after she did not respond

to his phone calls. Dr. Wells had simply fallen asleep.

Inexplicably, Dr. Prien accused Dr. Wells of abusing

drugs. Dr. Prien’s aggressive and unsubstantiated

accusations—and complete lack of respect for Dr.

Wells’

personal

boundaries—

resulted

psychological and emotional turmoil for Dr. Wells.

57.

In 2016, the ASRM conference was held in

Salt Lake City, Utah, and, once again, Dr. Wells

attended. Having learned from previous experience

that she would be expected to share a hotel room

with

Dr.

Prien

and

Dr.

Penrose,

Dr.

Wells

preemptively invited her mother, using it as an

excuse to share a room with her instead. Dr. Prien

and Dr. Penrose were visibly angered by Dr. Wells’

decision not to sleep in their hotel room. In

retaliation, Dr. Prien and Dr. Penrose ignored Dr.

Wells and her mother during the conference.

App. 103

58.

the

conference,

opportunity

present

professionals

about

her

Dr.

Wells

had

the

large

group

research.

She

dressed

professionally, in a knee length skirt. After the

successful presentation, in one of the only instances

in which the professors deigned to acknowledge her,

Dr. Penrose told Dr. Wells that no one was paying

attention to the presentation because they had been

looking at Dr. Wells’ legs the entire time. Dr. Penrose

asked Dr. Wells why she felt it was necessary to

dress “that way.” Sadly, not even the presence of Dr.

Wells’ mother, herself a professional engineer, had a

chilling effect on the harassment.

59.

By this time, Dr. Wells understood that she

had to either silently suffer harassment by her

professors or face retaliation—to the detriment of her

education and career.

App. 104

60.

In summer 2016, Dr. Wells began writing her

dissertation. Despite Dr. Wells’ hard work on the

dissertation, in what seemed a concerted effort, Dr.

Prien and Dr. Penrose baselessly accused Dr. Wells

of failing to take her studies seriously. This

harassment caused Dr. Wells to second-guess her

dedication and ability during a key time in her

education.

61.

Dr. Wells ultimately published her literature

review from her dissertation. As the supervising

professors, Dr. Prien and Dr. Penrose were expected

to offer feedback, support, and constructive criticism.

They offered none of those things. Nevertheless, they

demanded that they be listed as co-authors despite

their lack of contribution and, indeed, unprofessional

treatment of Dr. Wells throughout the experience.

62.

By 2017, Dr. Wells began to prepare for her

PhD defense, an already anxiety- inducing affair on

App. 105

the best of terms. Her apprehension was heightened

by relentless undermining and mistreatment by Dr.

Prien and Dr. Penrose.

63.

As testament to her professionalism and

quality of work, Dr. Wells passed her defense. On the

day of the defense, despite having worked with Dr.

Wells for over seven years, Dr. Prien ignored her

entirely. Dr. Prien’s behavior did not go unnoticed by

Dr. Wells’ family members, who were in attendance

and similarly ignored by Dr. Prien.

64.

In 2017, Dr. Wells graduated with her PhD in

Animal Science. Sadly, Dr. Wells was so traumatized

that she felt she could not walk at graduation.

D. Dr. Prien and Dr. Penrose Begin Their

Campaign to Undermine Dr. Wells’

Success Following Graduation.

65.

After graduation, Dr. Wells applied for jobs in

her field. Given Dr. Prien’s involvement in her work

and status at TTU, Dr. Wells listed him as a referral.

App. 106

During this time, Dr. Prien called Dr. Wells on a

constant basis to discuss his views on her future. He

offered Dr. Wells an unpaid position in his lab. Dr.

Wells respectfully declined this offer, hoping to find a

paid

position

commensurate

with

her

qualifications and experience.

66.

After more than six months of applying to

what seemed like hundreds of jobs, Dr. Wells was

frustrated and disheartened that she had not yet

landed a position. She and her now-husband needed

income and healthcare, so reluctantly she submitted

her application to work at a Tory Burch retail store.

During one of the numerous telephone calls from Dr.

Prien, he asked Dr. Wells how things were going. She

truthfully told him that she was frustrated that she

had to apply to a retail position after working hard to

obtain her PhD.

67.

Much to Dr. Wells’ shock and dismay, Dr.

App. 107

Prien told her that he had been waiting for this

moment—and conveyed his excitement that Dr.

Wells was now “humbled.” He went on to admit that,

when potential employers had contacted him as one

of Dr. Wells’ references, he told them that he could

not recommend her for the job. Dr. Prien’s casual

revelation of such deceit was physically sickening to

Dr. Wells. Her career prospects had been sabotaged.

68.

In hindsight, Dr. Wells sees Dr. Prien’s

pathological behavior for what it was: When Dr.

Prien could no longer intrude beyond Dr. Wells’ set

boundaries, he began actively campaigning against

her success. For example, when Dr. Wells made it

known that she planned to leave TTU and pursue a

career elsewhere after obtaining her PhD, Dr. Prien’s

hostility observably heightened. After all, Dr. Wells

leaving TTU would mean that Dr. Prien could no

longer direct or take credit for her successes. Dr.

App. 108

Prien interfered with her job application process so

that she would have no choice but to return to an

assistant’s position in his lab—a job offer she had

rejected.

69.

Eventually,

Dr.

Wells

was

offered

and

accepted a position as an andrologist at a company

called Ovation Fertility. The lab director at Ovation

was thrilled to have Dr. Wells because she was overqualified for the role, which typically only requires a

bachelor’s degree. The lab director told Dr. Wells that

he hoped to promote her quickly and she accepted the

job in order to have income and health insurance.

70.

Toxic as ever, Dr. Penrose told Dr. Wells that

she was not qualified to hold this position, despite

Dr. Wells’ stellar academic record in both her

bachelor’s degree and PhD.

E. Dr. Wells Founds her First Company,

Embryotics.

71.

While working at Ovation, Dr. Wells began

App. 109

building her first company, Embryotics.

Embryotics was created to develop embryo selection

technology that relied on noninvasive embryo and

oocyte assessment techniques to determine embryo

quality,

viability,

oocyte

competency,

and

cell

survival of cryopreservation using a novel specific

gravity device. Some of the concepts stemmed from

Dr. Wells’ graduate work.

72.

In 2017, the annual ASRM conference was in

San Antonio, Texas, and Dr. Wells attended as a

TTU representative to present the research she

conducted as a PhD student. This time, Dr. Prien

insisted that Dr. Wells share a hotel room with him

and a male graduate student. This was more that Dr.

Wells could endure, and she left the event early.

Before she did, however, the male graduate student

pleaded with her to stay, stating that he was

uncomfortable sharing a room with Dr. Prien.

App. 110

73.

Over the next months, Embryotics, led by Dr.

Wells, achieved numerous accolades.

74.

the

participated

beginning

the

U.S.

2018,

Dr.

National

Wells

Science

Foundation’s Innovation Corps (I-Corps), a program

focusing on training scientists and engineers to move

towards commercialization of their research. Dr.

Prien was designated the Principal Investigator on

the project, meaning he was in charge of submitting

the proposal and managing the award.

75.

In April 2018, Embryotics represented TTU at

the Rice Business Plan Competition and won 8th

place overall out of more than 700 applicants.

Embryotics was awarded $42,000 in prizes. The same

month,

Embryotics

won

the

TTU

iLaunch

Competition, and was awarded $10,000.

76.

On March 30, 2018, TTU filed a Provisional

Patent Application 62/650,038 entitled System and

App. 111

Method for non-invasive embryo sexing. Dr. Prien,

Dr. Penrose, and Dr. Wells were all listed as

inventors. Dr. Prien sent Dr. Wells a text message

stating that Dr. Penrose would receive a larger share

of the royalty rate because she came up with the idea

for the patent. Dr. Wells corrected Dr. Prien and

reminded him of their discussions in 2014 in which

Dr. Wells came up with the idea of using embryo

buoyancy to assess viability. Dr. Prien refused to

negotiate with Dr. Wells, his co-inventor whose idea

was the brainchild for this patent, and submitted the

royalty rate without further discussion. She still was

not told how exactly the royalty rate would be

divided.

77.

In April 2018, Dr. Wells left her job at Ovation

Fertility. She resolved to dedicate all of her time to

help Embryotics thrive.

78.

Dr. Wells applied for Embryotics to be

App. 112

accepted into the Accelerator Program at the TTU

Innovation Hub, a year-long program that provides

selected startup companies $25,000 and additional

funding opportunities, monthly business trainings,

marketing and business plan support, access to

regional professional events, and a team of mentors

from various industries in the venture space.

79.

Embryotics was accepted into the Accelerator

and awarded the license to the embryo buoyancy

technology that Dr. Wells helped to create during her

time as a TTU student. Dr. Prien was upset that she

was “given” the license to the technology. Dr. Wells

attempted to appease Dr. Prien by adding him to the

team of Mentors at the Accelerator Program. As part

of his involvement with the Accelerator, Dr. Prien,

like all the Mentors, was required to sign an

agreement to keep confidential the information he

learned from the Accelerator Program’s participating

App. 113

companies, including Embryotics.

80.

In June 2018, Dr. Wells got engaged to her

now-husband.

Dr.

Wells’

other

TTU

Mentors

congratulated her and celebrated her good news. In

contrast, Dr. Prien, was clearly miffed. His reaction

to Dr. Wells’ news was so obviously negative that

afterwards other Mentors reached out to Dr. Wells to

see if she was okay. In fact, in an email exchange in

2022

discussing

other matters,

an Accelerator

Mentor told Dr. Wells that he retains “a vivid, and

unsettling memory” of Dr. Prien’s reaction to Dr.

Wells’ engagement announcement.

81.

Around this time, Dr. Wells was invited by

Simplot, a large agribusiness company, to do a sex

selection study funded independently of TTU. Dr. Wells

invited (and paid) one of Dr. Prien’s graduate students

with whom she had worked to provide her assistance

for the study. Embryotics covered all the expenses

App. 114

with no financial support from TTU. During this trip,

the student confided in Dr. Wells that she was

nervous and uncomfortable about being required to

share a room with Dr. Prien on research trips.

82.

In spring 2019, Embryotics dissolved as a

company. The company was made up of all first-time

entrepreneurs and they “learned that while [the

technology] was accurate, it wasn’t fast enough to be

performed at scale, and ultimately the company

didn’t work out.” 4

F. EmGenisys

Embryotics.

83.

Rises

from

the

Ashes

Dr. Wells continued pursuing her passion for

research

and

formed

new

company

called

EmGenisys. The original intention for creating

EmGenisys was to pick up where Embryotics left off

Dr. Wells addressed the dissolution of Embryotics and her

focus on EmGenisys in an interview following EmGenisys’

success at the Grow-NY Competition in 2022. https://www

farmprogress.com/technology/grow-ny-competition-offersglimpse-future-ag-tech

App. 115

using

the

TTU

embryo

selection

technologies.

However, due to TTU’s lack of cooperation in the

process to license this technology to EmGenisys, Dr.

Wells and the company pivoted away from the TTU

technology. EmGenisys currently provides a digital,

non-invasive,

embryo

assessment

platform

for

livestock.

84.

In January 2019, at the National Cattleman’s

Beef

Association

meeting,

Dr.

Wells met

the

executive team at a company called Vytelle. Vytelle

is a precision livestock company that focuses on

emerging technologies, particularly those which

relate to genetics and cattle. Dr. Wells was excited

about the prospect of working with Vytelle and

stayed in contact with them as EmGenisys was

formed.

85.

A few months later, Dr. Wells obtained a letter

of intent from Vytelle for a project that would build

App. 116

upon the technology Embryotics was developing.

However, TTU was pursuing IP protection for the

base technology which had been developed at TTU.

Therefore, Dr. Wells began plans to license that IP,

for which she is an inventor, from TTU. The plan was

to secure the license from TTU and then apply once

again to the Accelerator Program as EmGenisys. To

this end, as the shepherd of all things IP at the

University, Cameron Smith, Director of the Office of

Research Commercialization at TTU, asked Dr.

Wells to create and present a business plan which he

instructed should include her relationship with

Vytelle.

86.

Dr. Wells worked on the business plan with

Kimberly Gramm, who at the time was the

Managing Director of the Innovation Hub and,

therefore, key in selecting the startup companies

accepted into the Accelerator Program. Ms. Gramm

App. 117

quickly became an advocate for Dr. Wells, which put

Ms. Gramm in the crosshairs of Dr. Prien and others

at TTU. In fact, once EmGenisys was accepted into

the Accelerator, Dr. Prien accused Ms. Gramm of

“nepotism,” claiming she was the only reason

EmGenisys was accepted.

G. TTU Office of Research and Innovation Uses

Dr. Wells’ Successful New Company as a Means

to Poach More of Her Intellectual Property.

87.

Dr. Wells presented her business plan as part

of the Accelerator vetting process, and during which

Mr. Smith asked numerous questions about Vytelle

and showed extraordinary interest in the company.

EmGenisys

was

accepted

into

the

Accelerator

Program, and Dr. Wells moved forward with the

expectation that EmGenisys would receive the

license from TTU for the technology based on

promises made by Mr. Smith to Ms. Gramm.

88.

Relying on these promises, throughout the

App. 118

spring of 2019, Dr. Wells sought confirmation from

Mr. Smith and the Accelerator Hub that EmGenisys

would indeed receive the license to the embryo

technology as promised. However, TTU refused to

provide assurances.

89.

It was around this time that the tenor of

TTU’s

relationship

with

Dr.

Wells’

changed

drastically. Dr. Wells now knows that Dr. Prien and

Dr. Penrose had, by this time, begun their campaign

to thwart Dr. Wells’ obtaining the license.

90.

In breach of all assurances made, instead of

granting Dr. Wells and her company the license to

TTU’s embryo technology, Mr. Smith licensed the

technology directly to Vytelle, robbing Dr. Wells and,

turn,

EmGenisys

lucrative

financial

opporrtunity. Cameron Smith also promised Vytelle

that Dr. Wells would work for them, despite having

no discussion with Dr. Wells about this, nor the

App. 119

power to otherwise make such assurances to Vytelle.

When Ms. Gramm pressed harder as to why the

University issued the license to Vytelle instead of Dr.

Wells’ company, EmGenisys, she was told that Dr.

Wells did not get the license because she was too

“emotionally charged,” a clear dig from Dr. Prien and

Dr. Penrose.

91.

Even more devastating, at about this same

time, Dr. Heppert, Vice President for Research and

Innovation at the University, told Dr. Wells that a

student had accused Dr. Wells of stealing inventions.

Dr. Wells now knows that Dr. Heppert accepted a

malicious, unsubstantiated accusation originating

from Dr. Prien and Dr. Penrose without proper

investigation, and almost certainly amplified it to the

University and beyond. Though this was a baseless

and clearly false claim, it was harmful for Dr. Wells,

given that the accusation was levelled by high-

App. 120

ranking, powerful individuals at the University.

92.

TTU’s deception and run-around continued

through the acts of Dr. David Snow, who was in

charge of the University’s IP and licensing programs

at the time, and who insisted Dr. Wells disclose, with

proof, company formation, identifying information for

parties

interest,

feedback

regarding

semen

technologies, an updated business plan, and funding

structure for embryo technology. It was Dr. Wells’

understanding

that

upon

submitting

this

information, she would finally obtain the license for

the embryo technology she had long been pursuing

for EmGenisys.

93.

On August 19, 2019, a meeting was held

among Dr. Heppert, Dr. Wells, Dr. Snow, Cameron

Smith, Dr. Tim Dallas, Dr. Mike Ryan, Kimberly

Gramm, Dr. Prien, and Dr. Penrose. The intention of

this meeting was to finalize details of which

App. 121

technologies EmGenisys could license and to discuss

the

fact

that

the

University

had

erroneously

promised Vytelle that Dr. Wells would work for

them.

94.

The meeting was a disaster from the start. Dr.

Heppert was the one who called the meeting, which

required Dr. Wells to fly to Lubbock to attend. All

knew Dr. Wells was short of funds, trying to get her

start-up company off the ground and only recently

having obtained her PhD from TTU. In an act

demonstrating Dr. Heppert’s unearned distaste for

Dr. Wells, he left the meeting after less than 10

minutes. Subsequently, Dr. Prien and Dr. Penrose

each made it clear that they did not support Dr.

Wells getting access to any of the University’s

technologies. Dr. Snow continued to irrationally

insist that Dr. Wells really wanted Vytelle to directly

license the TTU technology, instead of through Dr.

App. 122

Wells’ EmGenisys. Dr. Wells corrected Dr. Snow and

futilely explained that she wanted Vytelle to be a

customer and that Dr. Snow was weaponizing her

contacts against her, a fact he did not deny. Overall,

nothing was resolved, and the TTU representatives

lied about, among other things, promising Vytelle

that Dr. Wells would work for them.

H. Dr. Wells Tries to Keep the Peace with Dr.

Prien and He Takes Further Advantage of Her

Personal Success.

95.

Dr. Wells tried to remain positive and gain as

much benefit as possible in the Accelerator program.

Under the

advice

of Ms.

Gramm,

Dr.

Wells

endeavored to make Dr. Prien feel included in the

new research, in hopes that if his ego was stroked, he

would stop his campaign against her.

96.

Dr. Wells discussed sex selection data in the

TTU Accelerator Mentor program and, in follow up,

Dr. Prien asked to see more of Dr. Wells’ data. In an

App. 123

attempt to placate Dr. Prien, Dr. Wells shared the

data with him. True to form, Dr. Prien took the data

as if it were his own and used it as a basis to submit

an abstract that he sought to present at the ASRM

conference. Among other things, this was in violation

the

Accelerator

Program’s

non-

disclosure

agreement with its Mentors. Ironically, Dr. Prien has

taught a course at the undergraduate and graduate

level titled “Ethics in Scientific Research” for many

years, but intentionally violated ethical standards in

his role as a professor, co-inventor, and Mentor.

97.

Dr. Wells was concerned that if Dr. Prien was

allowed to present this data, it could negatively

impact relationships between her current company,

past company, and third parties. Among others,

Embryotics

had

existing

non-disclosure

agreement in place with Simplot, which continued for

a period of ten years after the date it went into effect

App. 124

(July 29, 2018). The agreement required Simplot’s

permission in order to disclose the research in which

they were participants.

98.

Dr. Prien’s actions were also in violation of the

non-disclosure agreement that Mentors in the

Accelerator Hub signed, which terms provided that

the Mentors shall not disclose any proprietary

information disclosed to it for any unauthorized

purpose.

99.

Charitably, Dr. Wells explained her position to

Dr.

Prien.

Instead

apologizing,

Dr.

Prien

acknowledged Dr. Wells’ concerns, then refused to

withdraw the submission. Dr. Wells had no choice

but to contact ASRM and inform them of the

misconduct and misappropriation by Dr. Prien.

ASRM removed Dr. Prien’s abstract.

100.

Upon finding out that he had been removed

from ASRM, Dr. Prien told another graduate student

App. 125

that he was going to “destroy” Dr. Wells. His

behavior escalated into the frenetic.

101.

As this conflict escalated, Dr. Wells uncovered

further disturbing details. First, Dr. Wells discovered

that despite being a primary inventor on the embryorelated patent applications by the University, her

allotted

proportion

royalties

was

disproportionately lower in comparison to Drs. Prien

and Penrose. Moreover, Dr. Wells was never included

in so much as a conversation about how the

inventors’ royalties should be allotted; naturally, Dr.

Wells

had

always

presumed

they

would

distributed on an equal basis.

102.

Second, Dr. Wells learned that Dr. Prien

claimed (and spread the rumor) that EmGenisys’ new

technology infringed upon TTU patents. Again, these

untruthful

claims

were

made

maliciously

and

without basis and have inflicted considerable damage

App. 126

on Dr. Wells. In truth, the technology pioneered by

EmGenisys is entirely novel. However, without

explanation or notice to Dr. Wells, on September 29,

2021, just a month before the patent was issued, the

University, through its attorney Kristopher Lance

Anderson, unilaterally removed Dr. Wells as an

inventor from US Patent Application No. 15/323,017

on the System and Method for Assessing Embryo

viability. The patent issued on November 9, 2021, as

US Patent No. 11,169,064 (“the ‘064 patent”),

without Dr. Wells as an inventor. Dr. Wells tried to

discuss these purposeful, harmful and erroneous

accusations with Mr. Smith (the attorney serving as

the TTU System Commercialization Director of the

Office of Research

Commercialization),

but he

refused to speak with her unless she agreed not to

bring her attorneys. This coercive misconduct by Mr.

Smith, TTU’s agent, was a power-play by the

App. 127

University over Dr. Wells, with the clear purpose

being to avoid her discovering their bad acts.

103.

Indeed, Dr. Wells only found out about being

removed as an inventor when reading an article

online. In this regard, it should be appreciated that

the naming of inventors is not arbitrary; correct

inventorship specification is a matter of law, and

misrepresentations regarding inventorship result in

the patent being unenforceable.

104.

Dr. Prien continued his meddling in Dr. Wells

affairs

into

2022.

Late

2021,

EmGenisys

participated in the Grow-NY Competition, in which

food and agriculture businesses compete for the

opportunity to win prize money and business

development support. EmGenisys was named as a

finalist and awarded $250,000 for its innovative

embryo assessing system. TTU published an article

celebrating this achievement, but Dr. Wells was

App. 128

notified that it had subsequently been removed early

in 2022 after Dr. Prien demanded that the article be

taken down from TTU’s website. The calculated

campaign against Dr. Wells became increasingly

distressing, especially because it was based on false

accusations

which

could

have

easily

been

investigated and disproven.

I. TTU Refuses to Acknowledge or Address Dr.

Wells’ Reports on Dr. Prien’s and Dr. Penrose’s

Misconduct.

105.

Dr.

Wells

emailed

student

body

representative asking for help to protect students

from the relentless and inappropriate conduct of Dr.

Prien and Dr. Penrose on powerless students. She

also spoke candidly with Kimberly Gramm and Dr.

Tim Dallas, another Accelerator Mentor, about Dr.

Prien forcing her to share a hotel room with him and

Dr. Penrose on all of their University-sponsored

research trips.

App. 129

106.

During fall 2020, Dr. Mark Sheridan, the Vice

Provost for Graduate and Postdoctoral Affairs and

Dean of the Graduate School, hosted a virtual lunch

to obtain feedback on how the graduate school at

TTU can better help its students. Dr. Wells stated

that the University needed to prevent students from

sharing hotel rooms with professors. She also

conveyed her view that students often are faced with

unnecessary additional expense. For example, Dr.

Wells detailed how she paid the expenses for all her

large animal studies out of her own pocket while

earning her PhD. She followed up this conversation

with a letter to Dr. Sheridan reiterating her

concerns. He did not respond for over a year.

107.

After Dr. Wells made known her claims

concerning Dr. Prien and Dr. Penrose, several other

individuals at TTU made independent claims against

them alleging similar misconduct. Another individual

App. 130

reached out to Dr. Sheridan to share his experience

and specifically stated that Dr. Penrose belittled him

but explained that he was fearful that if he came

forward to complain, she may retaliate by blocking

him from graduating with his master’s degree. This

was a story to which Dr. Wells related. Furthermore,

these

complaints

were

fielded

through

the

University’s Human Resources Department, assuring

the University’s awareness of Dr. Prien’s and Dr.

Penrose’s bad acts and impacts. The University still

refused to address or remedy them.

J. TTU Retaliates by Perpetuating Baseless

Claims that Dr. Wells Stole Intellectual

Property.

108.

In May 2022, Dr. Wells executed an agreement

to be on the Mentor committee in the Accelerator

Hub. Because of her experiences, she hoped to be a

positive source of mentorship to TTU entrepreneurs.

109.

Shortly

thereafter, Dr.

Prien

wrote

and

App. 131

distributed by email a song he titled the “Time to

Move on Song,” which does not directly name Dr.

Wells, but is a clear reference to her. The song is

dedicated to “those who believe rumor over fact” and

references “accusations” against Dr. Prien that he

has “survived.”

110.

Dr. Wells’ role as a Mentor in the Accelerator

Hub was finalized in June 2022, after she underwent

rigorous

interviews,

background

checks

and

onboarding procedures with Taysha Williams, who

had been appointed

Innovation

Hub

Program Director at

following

Kimberly

the

Gramm’s

departure. Dr. Wells was added to the TTU website,

making her new position public.

111.

It was common practice that Accelerator Hub

mentors

could

transform

their

roles

into

compensated ones by being hired in full-time roles at

TTU or by partnering with one of the companies

App. 132

accepted into the Accelerator Hub. As this was a

common occurrence for former Mentors, Dr. Wells

anticipated the same opportunities after serving as a

Mentor.

112.

On June 10, 2022, the Office of the General

Counsel for TTU called Taysha Williams and

instructed that she remove Dr. Wells as a Mentor

immediately. No legitimate reason was given for

removing Dr. Wells. Nevertheless, Ms. Williams

followed TTU’s orders and removed Dr. Wells from

the website and sent the email as instructed to the

other TTU Mentors telling them that, based on the

guidance of the Office of General Counsel and the

Vice President for Research and Innovation (Dr.

Heppert), they were to cease “any formal relationship

with and remove any and all collaboration with” Dr.

Wells. The other Mentors were specifically instructed

to “no longer engage Dr. Wells in Hub programming

App. 133

or involve her in the fulfillment” of the Mentorship

roles.

113.

Dr. Wells was never approached by the

General Counsel, his Office, or any other University

Accelerator

representative

regarding

these

adverse actions taken by TTU.

114.

Later that month, Dr. Wells became aware

that she had been removed from many TTU

publications, including articles honoring her as a

distinguished alumnus and EmGenisys founder. Dr.

Wells received no contact or explanation from TTU

about her removal from the University’s publications.

115.

After her firing, Dr. Wells discovered that Dr.

Prien claimed that all of his patented technologies for

which he is an inventor have been licensed to

industry. If this is true, this means that Dr. Wells

did not receive any royalties from TTU for several

patents, on which she is an inventor-in-fact.

App. 134

116.

Since Dr. Wells filed her EEOC charge against

TTU, University representatives seem to be taking a

disingenuous interest in at least some of her claims

and have reached out, through the University

lawyer, Cameron Smith, attempting to justify their

removal of Dr. Wells as an inventor and the

defamatory campaign launched against her.

117.

Additional insight into the scheme to tarnish

the professional reputation of Dr. Wells in order to

profit off her work product continues to come to light

even now. For example, in February of 2023, Dr.

Wells was informed by a colleague at a research

conference that Dr. Prien spread some story that he

had hired armed security for the graduate student

dissertation defenses in 2020, claiming that he

thought Dr. Wells might show up to the event. Dr.

Prien and Dr. Penrose have continued to paint the

narrative t

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