RESPONSE AND OBJECTION filed by Barbara Cherry, Michael Evans, Texas Tech University Health Sciences Center (TTUHSC) re: 92 Response/Objection to Findings, Conclusions¶

Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 97 · 2024-02-06 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
AMY PICKETT,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

§
§
§
§
§
§
§
§

Civil Action No. 5:20-CV-00232

DEFENDANTS’ RESPONSE TO PLAINTIFF’S RESPONSE TO FINDINGS,
CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JAMES WESLEY HENDRIX:
Defendants Texas Tech University Health Sciences Center (“TTUHSC”), Barbara Cherry
(“Dr. Cherry”), individually and in her official capacity as Department Chair of Leadership
Studies, and Michael Evans (“Dr. Evans), individually and in his official capacity as Dean of
School of Nursing (collectively, “Defendants”), file Defendants’ Response to Plaintiff’s Response
to Findings, Conclusions, and Recommendations of the United States Magistrate Judge (Dkt. 92). 1
This Court should adopt the magistrate’s FCR (Dkt. 89), grant Defendants’ Motion for Summary
Judgment (Dkt. 82), and dismiss all of Plaintiff’s (“Plaintiff” or “Pickett”) claims against
Defendants with prejudice.

1

Defendants did not file objections to the magistrate’s Findings, Conclusions, and
Recommendation (“FCR”). Thus, Plaintiff incorrectly states that her filing (Dkt. 92) is a
“Response” rather than Plaintiff’s objections to the FCR.

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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................. ii
TABLE OF AUTHORITIES ...................................................................................................... iii
INTRODUCTION......................................................................................................................... 1
STANDARD OF REVIEW .......................................................................................................... 3
ARGUMENTS & AUTHORITIES ............................................................................................. 4
I.

Pickett failed to state any specific objections in her Response to the FCR. .................... 4

II.

This Court should not consider Plaintiff’s newly-proffered evidence. ............................ 5
A. The four new evidence factors support this Court’s not considering
Plaintiff’s newly-proffered evidence. ........................................................................ 6

III.

This Court should not construe Plaintiff’s Response as a response to
Defendants’ Motion for Summary Judgment, but even if the Court does,
Pickett has failed to meet her evidentiary burden on all claims. ..................................... 9
A. ADA and Rehabilitation Act claims for disability discrimination............................. 9
B. ADA and Rehabilitation Act failure-to-accommodate claims ................................. 10
C. Substantive Due Process claim ................................................................................ 10

CONCLUSION ........................................................................................................................... 11

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TABLE OF AUTHORITIES

Cases
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .................................................................................................................... 3
Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415 (5th Cir. 1996) .............................................................................................. 1, 4, 5
E.E.O.C. v. Agro Distribution, LLC,
555 F.3d 462 (5th Cir. 2009) ...................................................................................................... 8
E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688 (5th Cir. 2014)
773 F.3d (alteration in original) .................................................................................................. 7
E.E.O.C. v. Louisiana Off. of Cmty. Servs.,
47 F.3d 1438 (5th Cir. 1995) .................................................................................................. 7, 8
Freeman v. County of Bexar,
142 F.3d 848 (5th Cir. 1998) .................................................................................................. 5, 6
Kitchen v. BASF,
343 F. Supp. 3d 681 (S.D. Tex. 2018) ........................................................................................ 7
Laxton v. Gap Inc.,
333 F.3d 572 (5th Cir. 2003) ...................................................................................................... 7
LeMaire v. La. Dep’t. of Transp. & Dev.,
480 F.3d 383 (5th Cir. 2007) ...................................................................................................... 7
Maples v. Univ. of Tex. Med. Branch at Galveston,
901 F.Supp.2d 874 (S.D.Tex. 2012) ........................................................................................... 7
Perez v. Tex. A&M Univ. at Corpus Christi,
589 F. App’x 244 (5th Cir. 2014) (per curiam) .......................................................................... 8
Performance Autoplex II Ltd. v. Mid-Continent Cas. Co.,
322 F.3d 847 (5th Cir. 2003) ...................................................................................................... 6
Plummer v. Univ. of Hous.,
860 F.3d 767 (5th Cir. 2017) ...................................................................................................... 8
Price v. Fed. Exp. Corp.,
283 F.3d 715 (5th Cir. 2002) ...................................................................................................... 7
Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455 (5th Cir. 1998) ...................................................................................................... 3
Roberson-King v. State of La. Workforce Comm’n,
904 F.3d 377 (5th Cir. 2018) ...................................................................................................... 7
Rodriguez v. Eli Lilly & Co.,
820 F.3d 759 (5th Cir. 2016) ...................................................................................................... 7
Univ. of Tex. Med. Sch. At Hous. v. Than,
901 S.W.2d 926 (Tex. 1995)....................................................................................................... 8
Watkins v. Gateway First Bank,
No. 3:20-CV-2136-L-BH, 2021 WL 1720255 (N.D. Tex. Apr. 30, 2021)................................. 5

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Statutes
28 U.S.C. § 636(b)(1) ..................................................................................................................... 3

Rules
Fed. R. Civ. P. 56(a) and (c) ........................................................................................................... 3
Fed. R. Civ. P. 72(b) ............................................................................................................... 1, 4, 5
Fed. R. Civ. P. 72(b)(2)................................................................................................................... 3
Fed. R. Civ. P. 72(b)(3)................................................................................................................... 3
Federal Rule of Evidence 901 ......................................................................................................... 9

Regulations
29 C.F.R. pt. 1630, App., § 1630.9 ................................................................................................. 8

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INTRODUCTION
This Court should adopt the magistrate judge’s FCR recommending the granting of
Defendants’ Motion for Summary Judgment and dismissal of all Plaintiff’s claims with prejudice.
Dkt. 89. Plaintiff’s Response fails to include any specific written objections to the FCR as required
by Federal Rule of Civil Procedure 72(b), the Fifth Circuit, and the magistrate judge. See Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996); Dkt. 89. Due to Plaintiff’s failure
to provide this Court with any proper objections, Defendants request that this Court fully adopt the
magistrate judge’s FCR and dismiss all of Plaintiff’s remaining claims.
In response to the FCR, Pickett filed the same “Response” to the FCR (hereinafter
“Plaintiff’s Response”) five times. (Dkt. 92–96). 2 Pickett also filed approximately 46 documents
(“Plaintiff’s Filed Documents”) and attached them haphazardly to Plaintiff’s five Responses. 3
Despite the clearly-defined rules for making specific objections, Pickett made zero objections to
the magistrate judge’s FCR in Plaintiff’s Response. Nowhere does she identify a specific finding,
conclusion, or recommendation, state an objection, and specify where the disputed determination

2

Defendants file this Response to Docket Entry 92. Given that Docket Entries 92 through 96 are
the exact same 21-page document entitled “Plaintiff’s Response to Findings, Conclusions, and
Recommendations of the United States Magistrate Judge,” Defendants request that the Court only
consider Docket Entry 92. If the Court considers Docket Entries 93-96, Defendants request that
this Response be considered as responsive to each of Plaintiff’s filings.
3
Plaintiff attaches a Table of Contents to Plaintiff’s Response and labels it “Plaintiff’s Response
to Summary Judgment Appendix.” Dkt. 92 at 22–23. Plaintiff’s Response is a response to the
magistrate’s FCR (Dkt. 89), not a response to Defendants’ Motion for Summary Judgment (Dkt.
82). Defendants emphasize that Plaintiff attached these 46 documents to five different lead
documents. Defendants object to Plaintiff’s Table of Contents, each of Plaintiff’s Filed
Documents, the title of her Table of Contents, and the characterization that she assigns to each of
Plaintiff’s Filed Documents. Defendants also note that various filed documents are irrelevant as
they pertain to Plaintiff’s prior employment with TTUHSC, including a confidential employment
settlement agreement. (Dkt. 92.2, 92.3, 92.6, 93.11, 95.3, 95.5, 95.9, 95.14).

1

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is located in the FCR. See Dkt. 92. For this reason alone, this Court should disregard Plaintiff’s
Response and adopt the magistrate judge’s FCR.
Plaintiff is attempting to use this opportunity at the objections stage as a second bite at the
apple to file a Response to Defendants’ Motion for Summary Judgment (which Defendants filed
on August 2, 2023). See Dkt. 82. 4 However, this Court should not consider Plaintiff’s Response as
a response to Defendants’ Motion for Summary Judgment because her response is untimely, and
it would cause undue prejudice to Defendants. Nor should this Court consider any of Plaintiff’s
Filed Documents as newly proffered evidence because all four factors established by the Fifth
Circuit for the introduction of new evidence weigh against their consideration. However, even
should this Court consider Plaintiff’s Response as a response to Defendants’ Motion for Summary
Judgment, she fails to meet her evidentiary burden on all claims as previously noted in the FCR.
This Court should adopt the magistrate judge’s FCR because: (1) Pickett has failed to raise
specific objections to the FCR; and (2) Plaintiff’s Filed Documents are not new evidence and
should not be considered by this Court. Pickett’s Response should not be construed as Plaintiff’s
Response to Defendant’s Motion for Summary Judgment, but even were the Court to do so, Pickett
has failed to meet her evidentiary burden, which also supports this Court granting Defendants’
Motion for Summary Judgment.
This Court should therefore adopt the FCR, finding that Pickett has not met her evidentiary
burden for her ADA, Rehabilitation Act, and substantive due process claims and dismiss all claims
against Defendants with prejudice.

4 The magistrate judge notes that “Pickett did not file a response to Defendants’ Motion for

Summary Judgment, and the time to do so has passed.” Dkt. 89 at 9. The magistrate also notes that
“ . . . Pickett’s failure to respond to Defendants’ summary judgment motion renders their
legitimate, nondiscriminatory reasons unrebutted.” Id. at 26.
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STANDARD OF REVIEW
The Court shall grant summary judgment when the depositions, documents, interrogatory
answers, declarations, or other materials show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986); Ragas v. Tenn. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998). The party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise manner in which that evidence supports
her claim. Ragas, 136 F.3d at 458. If the nonmoving party fails to make a showing sufficient to
establish the existence of an element essential to its case and on which it will bear the burden of
proof at trial, summary judgment must be granted. Celotex Corp., 477 U.S. at 322–323.
If a party timely objects to a Magistrate Judge’s recommendations or findings, the Court
must determine de novo any part of the objectionable portions of the recommendations or findings.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The Court may then accept, reject, or modify the
recommendations or findings, in whole or in part. Id. The Court may also return the matter to the
Magistrate Judge with instructions. Id. “Any party who objects to any part of these findings,
conclusions, and recommendation must file specific written objections within fourteen days after
being served a copy.” Dkt. 89; see also Fed. R. Civ. P. 72(b)(2).
“To be specific, an objection must identify the specific finding, conclusion, or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge’s Findings, Conclusions, and Recommendation where the disputed
determination is found. An objection that merely incorporates by reference or refers to the briefing
before the magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge
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that are accepted or adopted by the district court, except upon grounds of plain error.” Dkt. 89; see
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
ARGUMENTS & AUTHORITIES
I.

Pickett failed to state any specific objections in her Response to the FCR.
Despite clear instructions by the FCR of her right to object, including specifically

informing Plaintiff of the requirement to “file specific written objections” that “identify the
specific finding, conclusion, or recommendation to which objection is made, state the basis for the
objection, and specify the place in the magistrate judge’s Findings, Conclusions, and
Recommendations where the disputed determination is found,” Pickett failed to state any
objections of any kind whatsoever to the FCR in Plaintiff’s Response. Dkt. 92; see Dkt. 89 at 36.
Federal Rule of Civil Procedure 72(b) states that “[w]ithin 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” See also Douglass, 79 F.3d at 1417.
Here, in Pickett’s “objections,” she failed to state even one general objection. Dkt. 92. She
never objected to the FCR issued by the magistrate judge. Id. She instead simply stated, “[u]pon
further review of the Defendants misrepresentation of facts outlined in the Defendants Summary
Judgement (sic), and after considering the Findings, Conclusions, and Recommendations of the
United States Magistrate Judge, Plaintiff, Amy Pickett, Pro Se objectively opposes the Defendants
(sic) unlawful position, and respectfully request The Honorable United States Magistrate Judge D.
Gordan Bryant. Jr. to review and consider the Plaintiff’s compelling evidence provided in response
and outlined in the attached Appendix, and re-evaluate previous Findings, Conclusions, and
Recommendations, and propel Plaintiff’s claims, and unjust matter forward initiating and setting
a trail (sic) scheduling order, granting Plaintiff rights to a fair jury trial.” Id. at 1.
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Nor did Pickett state specific objections. Not once in her lengthy response did Pickett
actually use the language “Plaintiff objects to . . .” any of the findings, conclusions, or
recommendation made by the magistrate judge nor did she refer to any specific place in the
magistrate’s FCR that she is disputing. See generally, id. Pickett simply opposes the Defendants’
“unlawful position” and requests that the magistrate consider her “evidence” and “re-evaluate” his
previous FCR. Id. This is improper and insufficient per Federal Rule of Civil Procedure 72(b).
Plaintiff’s Response does not raise any legal arguments that the magistrate judge
considered in issuing his FCR either.
Due to the failure to identify even one specific objection to the magistrate judge’s FCR,
this Court should not consider Plaintiff’s Response because Pickett fails to abide by Federal Rule
of Civil Procedure 72(b), the Fifth Court standard for specific objections, and this Court’s
instructions. See Douglass, 79 F.3d at 1417; see also Dkt. 89 at 36. This Court should adopt the
FCR.
II.

This Court should not consider Plaintiff’s newly-proffered evidence.
This Court should not consider Pickett’s newly-proffered evidence at this late stage. 5 While

district courts have “wide discretion to consider evidence offered for the first time in an objection
to the magistrate judge’s findings and recommendation . . . [l]itigants, however, ‘may not . . . use
the magistrate judge as a mere sounding-board for the sufficiency of the evidence.’” Watkins v.
Gateway First Bank, No. 3:20-CV-2136-L-BH, 2021 WL 1720255, at *1 (N.D. Tex. Apr. 30,
2021) (quoting Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998)). Whether a district
court considers new evidence depends on the following four factors:

5

Defendants assert that Plaintiff’s Filed Documents are not new evidence at all because she never
filed any evidence in response to Defendant’s Motion for Summary Judgment. Further, as will be
explained, many of the documents were attached to Defendants’ Motion for Summary Judgment.
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(1) the moving party’s reasons for not originally submitting the evidence; (2) the
importance of the omitted evidence to the moving party’s case; (3) whether the
evidence was previously available to the non-moving party when it responded to
the summary judgment motion; and (4) the likelihood of unfair prejudice to the
non-moving party if the evidence is accepted.
Id. (quoting Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 862 (5th Cir.
2003)) (citing Freeman, 142 F.3d at 852).
A. The four new evidence factors support this Court’s not considering Plaintiff’s newlyproffered evidence.
First, Pickett never requested additional time to file a response to Defendants’ Motion for
Summary Judgment. Nor did she articulate in Plaintiff’s Response to the FCR why she waited until
January 23, 2024, five months after her response deadline to Defendants’ Motion for Summary
Judgment, to now file these documents. Thus, Pickett has demonstrated no reason to have missed
her deadline by five months. The first element weighs in Defendants’ favor.
Second, many of the documents that Pickett filed as exhibits to Plaintiff’s Response were
used as evidence in Defendants’ Motion for Summary Judgment. See Dkt. 82.3, 82.4. Furthermore,
several documents only relate to her prior employment as a nursing instructor with TTUHSC and
are irrelevant to Pickett’s case as a former student at TTUHSC. 6 Therefore, these documents do
not support Pickett’s ADA, Rehabilitation Act, and substantive due process claims at all.
None of the other exhibits assist the Court. Regarding Pickett’s disability discrimination
claims, none of Plaintiff’s Filed Documents establishes that Pickett was excluded from the
combined program because of a disability, the third element of an ADA and Rehabilitation Act

6 See Dkt. 92.2, 92.3, 92.6, 93.11, 95.3, 95.5, 95.9, 95.14.

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disability discrimination claim. See Maples v. Univ. of Tex. Med. Branch at Galveston, 901
F.Supp.2d 874 (S.D.Tex. 2012), aff’d 524 Fed. Appx. 93 (5th Cir. 2013).
Nor do any exhibits establish that any of Defendants’ actions were pretextual. See
Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016) (quoting E.E.O.C. v. LHC Grp.
Inc., 773 F.3d 688, 702 (5th Cir. 2014) (alteration in original) (quoting Laxton v. Gap Inc., 333
F.3d 572, 578 (5th Cir. 2003) (finding that “[a]t summary judgment, ‘[e]vidence demonstrating
that the employer’s explanation is false or unworthy of credence, taken together with the plaintiff’s
prima facie case, is likely to support an inference of discrimination even without further evidence
of defendant’s true motive.’”); Kitchen v. BASF, 343 F. Supp. 3d 681, 688 (S.D. Tex. 2018), report
and recommendation adopted, No. 3:17-CV-00040, 2018 WL 5723147 (S.D. Tex. Nov. 1, 2018),
aff’d, 952 F.3d 247 (5th Cir. 2020) (quoting Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir.
2002) (Showing pretext “[a]t the summary judgment stage, [] means ‘the plaintiff must substantiate
his claim of pretext through evidence demonstrating that discrimination lay at the heart of the
employer’s decision.”); Roberson-King v. State of La. Workforce Comm’n, 904 F.3d 377, 381 (5th
Cir. 2018) (quoting LeMaire v. La. Dep’t. of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007)
(“In conducting a pretext analysis, the court does not ‘engage in second-guessing of an employer’s
business decisions.’”); E.E.O.C. v. Louisiana Off. of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir.
1995) (affirming that the Fifth Circuit has “consistently held that an employee’s subjective belief
of discrimination, however genuine, cannot be the basis of judicial relief.”). None of the exhibits
show that Defendants’ explanation of why Pickett was dismissed from the combined program was
false or unworthy of credence. Rodriguez, 820 F.3d at 765. Rather, to the extent that any documents
show anything related to pretext, they only support Pickett’s subjective belief that she was

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discriminated against. Louisiana Off. of Cmty. Servs., 47 F.3d at 1448. 7 A subjective belief,
however, does not meet the heightened burden of showing pretext.
Similarly, for Pickett’s failure-to-accommodate claims under the ADA and Rehabilitation
Act, no exhibits could establish that receiving the PowerPoint presentations as pdf documents was
an unreasonable accommodation as “reasonableness” is a legal determination. See E.E.O.C. v.
Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009) (“The ADA provides a right to
reasonable accommodation, not to the employee’s preferred accommodation.”). The ADA
regulations Appendix provides:
The accommodation, however, does not have to be the “best” accommodation
possible, so long as it is sufficient to meet the job-related needs of the individual
being accommodated . . .. [T]he employer providing the accommodation has the
ultimate discretion to choose between effective accommodations, and may choose
the less expensive accommodation or the accommodation that is easier for it to
provide.
Id. (quoting 29 C.F.R. pt. 1630, App., § 1630.9). Given that Pickett admitted to having received
the PowerPoints on the three occasions in dispute, her failure-to-accommodate claims are
meritless. Dkt. 82.4 at 127, 131–133. 8
Nor do any of Plaintiff’s Filed Documents establish that Pickett has a constitutionally
protected property or liberty interest in continuing in a graduate program and/or in her school
loans. (Plummer v. Univ. of Hous., 860 F.3d 767, 773 n.6 (5th Cir. 2017) (citing Univ. of Tex. Med.
Sch. At Hous. v. Than, 901 S.W.2d 926, 930 n2. (Tex. 1995)); see also Perez v. Tex. A&M Univ.

7

The magistrate noted that “[t]his ‘subjectiveness’ according to Pickett, stemmed from ‘disability
discrimination’ but Pickett points to no specific evidence in support.” Dkt. 89 at 22.
8 The magistrate judge states that the Rehabilitation Act failure-to-accommodate claim regarding
the deadline extension for pre-submission feedback and professors failing to provide notes is live.
Dkt. 89 at 4. However, the Fifth Circuit dismissed this failure-to-accommodate claim, “[s]o Pickett
failed to state a claim for failure to accommodate her by refusing to move back the deadlines”
without limiting its decision to the ADA and excluding the Rehabilitation Act claim. Dkt. 46 at
26.
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at Corpus Christi, 589 F. App’x 244, 248 (5th Cir. 2014) (per curiam). As the magistrate found,
Plaintiff’s substantive due process claim fails as a matter of law without a contractual right. Dkt.
89 at 31, 33.
As to the third factor, all of Plaintiff’s Filed Documents have been available to Plaintiff
since well before January 2024, as all of the documents relate to dates between 2013 and 2019.
Thus, no documents have been newly identified by either party.
Regarding the fourth factor, should the Court consider Pickett’s exhibits as new evidence,
it would cause unfair prejudice to Defendants because Defendants’ Reply deadline passed in
September 2023. And since Pickett did not authenticate any of her exhibits pursuant to Federal
Rule of Evidence 901, Defendants would need to analyze each document to ensure that it is the
exact same document that Defendants possess.
Because the four factors weigh against this Court considering Pickett’s newly-proffered
evidence, this Court should not consider Plaintiff’s Filed Documents as evidence.
III.

This Court should not construe Plaintiff’s Response as a response to Defendants’
Motion for Summary Judgment, but even if the Court does, Pickett has failed to meet
her evidentiary burden on all claims.
Pickett failed to file a response to Defendants’ Motion for Summary Judgment in August

2023, and her response to the FCR should not be construed as such now.
A. ADA and Rehabilitation Act claims for disability discrimination
The magistrate judge correctly found that Defendants are entitled to summary judgment on
Plaintiff’s ADA and Rehabilitation Act claims and that the record was devoid of “any indication
that these individuals acted by reason of Pickett’s disability” in dismissing Plaintiff from the DNP
combined program. Dkt. 89 at 23. The magistrate thus properly concluded that Plaintiff did not
“ma[ke] out a prima facie case as to her ADA and [Rehabilitation Act] disability discrimination

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claims. Id. at 25. The magistrate further found that even had Pickett “established a prima facie
case, Defendants have submitted legitimate, nondiscriminatory reasons for their actions,” and that
shifting the burden back to Plaintiff to demonstrate that these reasons were pretextual, “Pickett has
not met her burden.” Id. at 26. The court therefore concluded that “[b]ecause Pickett has not met
her burden of demonstrating that Defendants’ actions were pretextual and that discrimination was
the real reason for their actions, Defendants are entitled to summary judgment.” Id. at 27–28.
As previously stated, Pickett has not identified or provided any evidence in Plaintiff’s
Response or in Plaintiff’s Filed Documents to support Defendants having taken actions because of
Pickett’s disability. Nor has she established any evidence showing pretext by Defendants.
Accordingly, this Court should adopt the FCR as to Pickett’s ADA and Rehabilitation Act
disability discrimination claims.
B. ADA and Rehabilitation Act failure-to-accommodate claims
The same is true for her failure-to-accommodate claims. The magistrate properly found
that the record is “devoid of evidence showing that Defendants failed to accommodate Pickett”
and concluded that Pickett “received ‘note-taking assistance’” as required by her letter of
accommodation. Id. at 29–30. The magistrate therefore recommended dismissal of Plaintiff’s
failure-to-accommodate claims under the ADA and Rehabilitation Act. Id. at 30.
For Pickett’s failure to produce any evidence showing that receiving the PowerPoint
presentations as pdf documents was not a reasonable accommodation, this Court should adopt the
FCR as to Pickett’s ADA and Rehabilitation Act failure-to-accommodate claims.
C. Substantive Due Process claim
Lastly, the magistrate correctly found that Pickett does not possess a protected property
interest in her post-graduate education, “particularly true where Pickett does not contend she was

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wholly denied access to public higher education but was instead, not able to continue in her chosen
field at TTUHSC.” Id. at 34–35. The court therefore concluded that Pickett “cannot establish a
§ 1983 substantive due process claim” and recommended dismissal of Plaintiff’s substantive due
process claim. Id. at 35.
Pickett has not provided any legal authority to show that she has a protected property or
liberty interest in continued graduate studies or in her student loans; her claim fails as a matter of
law. Therefore, this Court should adopt the FCR as to Pickett’s substantive due process claim.
CONCLUSION
For the foregoing reasons, Defendants, Texas Tech University Health Sciences Center,
Barbara Cherry, individually and in her official capacity, and Michael Evans, individually and in
his official capacity, respectfully request that this Court deny Plaintiff’s “objections” and adopt
the Magistrate Judge’s Findings, Conclusions, and Recommendation, dismiss all claims against
Defendants with prejudice, and grant Defendant any further relief deemed just and proper.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
JAMES LLOYD
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division

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/s/ Kirstin M. Erickson
KIRSTIN M. ERICKSON
Attorney in Charge
Texas Bar No. 24134194
Assistant Attorney General
General Litigation Division
Kirstin.Erickson@oag.texas.gov
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Phone: (512) 463-2120
Fax: (512) 320-0667
Counsel for Defendants

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2024, the foregoing Defendants’ Response to Plaintiff’s
Response to Findings, Conclusions, and Recommendations of the United States Magistrate Judge
was electronically filed with the Clerk of the Court using the CM/ECF system, which will send a
notice of electronic filing to the following counsel of record:
Amy Pickett, Pro se
P.O. Box 543
Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558
/s/ Kirstin M. Erickson
KIRSTIN M. ERICKSON
Assistant Attorney General

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