RESPONSE IN OPPOSITION filed by Texas Tech University Health Sciences Center (TTUHSC) to Plaintiff's re: 30 Objection to Findings, Conclusions, and Recommendation of the¶
Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 31 · 2021-08-27 · PDF
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Case 5:20-cv-00232-H-BV Document 31 Filed 08/27/21 Page 1 of 4 PageID 322 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION AMY PICKETT, Plaintiff, § § § v. § § TEXAS TECH UNIVERSITY HEALTH § SCIENCES CENTER; BARBARA CHERRY, § individually and in her official capacity as § Department Chair of Leadership Studies; and § MICHAEL EVANS, individually and in his § official capacity as Dean of School of Nursing, § Defendant. § Civil Action No. 5:20-CV-00232-H-BQ DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S OBJECTIONS TO FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Defendants Texas Tech University Health Sciences Center (TTUHSC), and Barbara Cherry and Michael Evans in both their official and individual capacities, file this Response in Opposition to Plaintiff Amy Pickett’s Objections to Findings, Conclusions, and Recommendations (FCR) of the United States Magistrate Judge (Dkt. 30). Defendants respectfully request the Court overrule Plaintiff’s objection. ARGUMENT Plaintiff’s sole objection appears to challenge the FCR’s finding that Pickett received the reasonable accommodations to which she was entitled under the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) as to the October 2, 2018 exam. Dkt. 30 at p. 1. As she explains, she felt obligated to proceed with the exam based on an alleged comment from Dr. Miller that counseled against further changes in the exam schedule. Id. But the FCR’s finding regarding whether reasonable accommodations were afforded was that Pickett did not request any further Case 5:20-cv-00232-H-BV Document 31 Filed 08/27/21 Page 2 of 4 PageID 323 accommodation regarding the exam period, no matter how she “felt” at the time that decision was made, and Pickett makes no allegations about further accommodations she requested at that time. Dkt. 28 at 16–17. The FCR correctly found that “TTUHSC cannot be liable for failing to provide accommodations Pickett did not request.” Dkt. 28 at 16 (citing Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007)). Pickett offers no legal authority for the contrary proposition that a student who subjectively feels that she cannot request further accommodation on top of what she is already provided states a plausible claim under the ADA or RA for failure to accommodate. CONCLUSION The Court should overrule Pickett’s objection and adopt the FCR as to the recommendation that Defendants’ Motion to Dismiss be granted. Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Response in Opposition to Plaintiff’s Objections to Findings, Conclusions and Recommendation of the United States Magistrate Judge Page 2 Case 5:20-cv-00232-H-BV Dated: August 27, 2021 Document 31 Filed 08/27/21 Page 3 of 4 PageID 324 Respectfully submitted. KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General GRANT DORFMAN Deputy First Assistant Attorney General SHAWN COWLES Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief - General Litigation Division /s/ Cory A. Scanlon CORY A. SCANLON Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone (512) 463-2120 Facsimile: (512) 320-0667 cory.scanlon@oag.texas.gov COUNSEL FOR DEFENDANTS Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Response in Opposition to Plaintiff’s Objections to Findings, Conclusions and Recommendation of the United States Magistrate Judge Page 3 Case 5:20-cv-00232-H-BV Document 31 Filed 08/27/21 Page 4 of 4 PageID 325 CERTIFICATE OF SERVICE I hereby certify that on August 27, 2021, a true and correct copy of the foregoing document was served via Certified Mail, Return Receipt Requested and email as follows: Amy Pickett PO Box 543 Buffalo Gap, Texas 79508 apickett1010@yahoo.com (682) 258-4558 /s/ Cory A. Scanlon CORY A. SCANLON Assistant Attorney General Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Response in Opposition to Plaintiff’s Objections to Findings, Conclusions and Recommendation of the United States Magistrate Judge Page 4