RESPONSE filed by John Alexander Zapata Hincapie re: 16 Amended MOTION to Dismiss Plaintiff's First Amended Complaint (Whitburn, Mark)¶

Zapata Hincapie v. Texas Tech University et al, No. 5:23-cv-00045-H (N.D. Tex.) · Dkt. 22 · 2023-08-31 · PDF

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

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THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
JOHN ALEXANDER
ZAPATA HINCAPIE,
Plaintiff,
v.

TEXAS TECH UNIVERSITY,
Dr. Sindee Lou Simon,
Dr. Albert Sacco, Jr.,
Dr. Mark A. Sheridan,
Dr. Brandon Weeks,
Dr. Gerardine Gabriela Botte,
Dr. Chau-Chyun Chen,
Dr. Siva Vanapalli,
Dr. Wei Li,
Dr. Harvinder Singh Gill,
Defendants.

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Civil Action No. 5:23-cv-00045

JURY DEMANDED

PLAINTIFF’S RESPONSE TO DEFENDANTS’
FIRST AMENDED MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i
TABLE OF AUTHORITIES ....................................................................................................... ii
I.FACTUAL ALLEGATIONS .................................................................................................... 1
II.ARGUMENT ............................................................................................................................. 9
A.

Standard of Review ........................................................................................................ 9

B.
Texas Tech Is Not Entitled to Sovereign Immunity with Respect to Plaintiff’s Title
VI Claim................................................................................................................................... 10
C.
Plaintiff’s Claims Against the Individual Defendants in Their Official Capacities
Are Not Duplicative of His Claims Against Texas Tech. ..................................................... 11
D.
Defendants Are Not Entitled to Qualified Immunity with Respect to Plaintiff’s Due
Process Claims. ........................................................................................................................ 11
E.
Defendants Are Not Entitled to Qualified Immunity with Respect to Plaintiff’s
Equal Protection Claims......................................................................................................... 15
F.
Plaintiff Asserts a Viable Section 1981 Claim, and Defendants Are Not Entitled to
Qualified Immunity. ............................................................................................................... 18
G.

Plaintiff States a Viable Title VI Claim Against Texas Tech University. ............... 19

H.

Defendants’ Arguments Concerning Title VI Retaliation Fail ................................ 20

I. Defendants’ Arguments Concerning Title VI and Teacher-on-Student Harassment
Fail. ........................................................................................................................................... 22
J. Plaintiff Has Adequately Pled His Request for a Master’s Degree and Legal Basis
Exists for Him to Obtain Such Relief. ................................................................................... 22
K.
Plaintiff Does Not Rely on the Long History of Discrimination in the Department
to Serve as the Basis for His Claims. ..................................................................................... 24
L.

Plaintiff Has Adequately Alleged Entitlement to Injunctive Relief. ........................ 25

M.

Plaintiff May Seek Punitive Damages Against the Individual Defendants. ............ 25

III.CONCLUSION ...................................................................................................................... 25
CERTIFICATE OF SERVICE ..................................................................................................... 26

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TABLE OF AUTHORITIES

CASES
Abner v. Kan. City S. R.R. Co.,
513 F.3d 154 (5th Cir. 2008)…………………………………………………………………….25
Alexander v. Sandoval,
532 U.S. 275 (2001)……………………………………………………………………………...10
Ashcroft v. Iqbal,
556 U.S. 662 (2009)……………………………………………………………………………...23
Boshaw v. Midland Brewing Co.,
32 F.4th 598 (6th Cir. 2022)……………………………………………………………………..21
Daniel v. Univ. of Texas Southwestern Med. Ctr.,
960 F.3d 253 (5th Cir. 2020)…………………………………………….……………….……….9
Doe v. White,
440 F. Supp. 3d 1074 (N.D. Cal. 2020)………………………………………………………….14
Eiland v. Wolf,
764 S.W.2d 827 (Tex. App.—Houston [1st Dist.] 1989, writ denied)…………………………..19
Fairley v. Stalder,
294 Fed. Appx. 805 (5th Cir. 2008)……………………………………………………………...11
Marlowe v. LeBlanc,
2022 U.S. App. LEXIS 16128 (5th Cir. June 10, 2022)…………………………………………11
Paterson v. Weinberger,
644 F.2d 521 (5th Cir.1981)……………………………………………………….…………….10
Perry v. VHS San Antonio, L.L.C.,
990 F.3d 918 (5th Cir. 2021)…………………………………………………………………….19
Peters v. Jenney,
327 F.3d 307 (4th Cir. 2003)…………………………………………………………………….21
Plummer v. Univ. of Houston,
860 F.3d 767 (5th Cir. 2017)…………………………………………………………………….15
Rigdon v. Ga. Bd. of Regents,
2008 U.S. Dist. LEXIS 59422 (S.D. Ga. August 4, 2008)………………………………………15

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Scott v. United States Bank Nat’l Ass’n,
16 F.4th 1204 (5th Cir. 2023)……………………………………………………………………21
Shakeri v. ADT Sec. Services, Inc.,
816 F.3d 283 (5th Cir. 2016)…………………………………………………………………….10
Smith v. Wade,
461 U.S. 30 (1983)……………………………………………………………………………….25
Southwell v. Univ. of Incarnate Word,
974 S.W.2d 351 (Tex. App.—San Antonio 1998, pet. denied)…………….……………………19
Spallone v. United States,
493 U.S.276 (1990)……………………………………………………………………………....24
Thomas v. Gee,
850 F. Supp. 665 (S.D. Ohio 1994)…………………………………………………………...…15
Threat v. City of Cleveland,
6 F.4th 672 (6th 2021)………………………………………………………………………...…21
Tobias v. University of Texas at Arlington,
824 S.W.2d 201 (Tex. App.—Fort Worth 1991)………………………………………………..19
Turner v. Pleasant,
663 F.3d 770 (5th Cir. 2011)…………………………………………………………………….10
University of Tex. Health Sci. Ctr. v. Babb,
646 S.W.2d 502 (Tex. App.—Houston [1st Dist.] 1982, no writ)……………………………….18
Univ. of Tex. Med. Sch. at Hous. v. Tran,
901 S.W.2d 929 (Tex. 1995)…………………………………………………………………….15
Walker v. Livingston,
381 Fed. Appx. 477 (5th Cir. 2010)……………………………………………………………..11
STATUTES, RULES, AND REGULATIONS
Fed. R. Civ. P. 65………………………………………………………………………………...23
Texas Education Code § 61.003…………………………………………………………………14

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Plaintiff John Alexander Zapata Hincapie (“Mr. Zapata”) hereby submits his Response to
Defendants’ First Amended Motion to Dismiss (the “Motion”) and would respectfully show the
Court as follows:
I.

FACTUAL ALLEGATIONS1

Mr. Zapata was a Hispanic doctoral student at the Chemical Engineering Department (the
“Department”) at Texas Tech from the Fall of 2016 to the Fall of 2021. Plaintiff’s First
Amended Complaint (“FAC”), at ¶ 19. Texas Tech is a public university located in Lubbock,
Texas, and receives federal financial assistance. Id. Mr. Zapata is an immigrant to the United
States, having moved to the United States from Medellin, Colombia, in 2013. FAC, at ¶ 20. Mr.
Zapata came to the United States on a scholarship to the University of Oklahoma. Id. Prior to
receiving his Master’s degree in Chemical Engineering from the University of Oklahoma in
2016, Mr. Zapata completed his undergraduate degree in Colombia. Id.
Mr. Zapata became a PhD student in the Department within the Edward E. Whitacre Jr.
College of Engineering at Texas Tech (the “College of Engineering”) in the Fall 2016 semester
and continued in the doctoral program within the Department until December 10, 2021,
graduating with a 3.92 grade point average. FAC, at ¶ 21.
Mr. Zapata’s PhD advisor and dissertation chair, Dr. Sindee Lou Simon, exhibited
disparate and discriminatory behaviors towards him for several years motivated by and targeting
Mr. Zapata’s race (Hispanic) and national origin (Colombia). FAC, at ¶ 24. The PhD students in
the Department are predominantly Asian students from Asian countries of origin. Id. Similarly,
during the time frame of Mr. Zapata’s PhD study around 50% of the faculty of the Department

1 Plaintiff does not repeat all factual allegations here, given their complexity. Instead, he

summarizes them briefly here and respectfully refers the Court to his First Amended Complaint
for the more complete account.
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was composed of Asian professors, originally from Asian countries. Id. Dr. Simon
discriminated in favor of these Asian students and against Mr. Zapata and other Hispanics. Id.
Right from the start, she would yell at Mr. Zapata inappropriately and insist that he speak only in
English, regardless of the circumstances—behaviors she never exhibited towards the Asian PhD
students in the Department. See FAC, at ¶¶ 28-31.
Dr. Simon’s discriminatory conduct led to severely damaging consequences when, in the
Spring of 2021, Mr. Zapata sought to defend his doctoral dissertation and to graduate with other
similarly situated Asian PhD students in the Department. FAC, at ¶ 25. Dr. Simon did
everything in her power to impede Mr. Zapata from graduating during the Spring of 2021: she
cut his PhD funding, which forced him to work as a teaching assistant, she delayed the timing of
his qualifying exam in comparison to his group members, and she failed to provide him with a
specific time frame to defend his PhD prior to the Spring 2021 deadline. Id. See also FAC, at
¶¶ 36-38, 40-43. Dr. Simon’s other four advisees during the Spring 2021 semester were all
Asian from Asian countries of origin and were not treated in this manner. See FAC, at ¶¶ 25, 3638. By on or about April 21, 2021, Mr. Zapata had completed exactly the same PhD degree
requirements as the other four advisees in all other respects. FAC, at ¶ 25. Nevertheless, Dr.
Simon did not even allow him to select his own dissertation committee members, contrary to
university policy and contrary to the manner in which his Asian colleagues were treated. FAC,
at ¶ 39. Furthermore, after a long period of delay, Dr. Simon suddenly announced that Mr.
Zapata had not passed his qualifying exam, despite having given no indication of this earlier, and
thus forced further delay in his dissertation defense. FAC, at ¶¶ 46-48.
In March 2021, Dr. Simon initiated the process to change Mr. Zapata’s international
status from a student to a legal worker in the United States representing to the US government

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that Mr. Zapata was going to graduate in August 2021. FAC, at ¶ 45. In May 2021, but after the
Spring 2021 graduation deadline, Mr. Zapata successfully defended his doctoral dissertation and
Dr. Simon and all the rest of the dissertation committee members signed his oral defense and
thesis-dissertation approval form, indicating that both his written dissertation and his oral
presentation were successful. FAC, at ¶¶ 26, 52. However, Dr. Simon compounded the damage
she had already done by requiring Mr. Zapata to make a series of untimely revisions to his
written dissertation, two weeks prior to the Summer 2021 commencement, after Dr. Simon had
already left Texas Tech to work as a full-time employee at North Carolina State University (“NC
State”). FAC, at ¶¶ 26, 53, 55-56. Such an action taken after signing the dissertation approval
form, after working full-time for another university, and after changing a student’s international
status is inconsistent with accepted standards within the Department, within the Graduate School,
and within the wider academic community. Id. On information and belief, Dr. Simon engaged
in no such conduct with respect to any of Mr. Zapata’s Asian peers. FAC, at ¶ 26.
Over the summer of 2021, confronted with Dr. Simon’s obvious intentional conduct in
refusing to perform the final steps for his graduation after leaving the university, Mr. Zapata
contacted the Graduate School multiple times in an effort to obtain a remedy and had Dr.
Brandon Weeks, Dean of Research and Graduate Programs, assigned to be his dissertation
approver. FAC, at ¶ 57. Nevertheless, Dr. Simon continued to insist on further corrections,
despite continuing to change what corrections she actually wanted Mr. Zapata to make. FAC, at
¶¶ 59, 61-62. None of the Asian PhD students in the Department were subjected to such
treatment. Id. Then, when Mr. Zapata informed Dr. Weeks of this problem, instead of offering
assistance, Dr. Weeks informed Mr. Zapata that he had to comply with a “two-publications”
requirement that had been imposed on none of his Asian peers. FAC, at ¶ 60.

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Mr. Zapata then began requesting the assistance of the other Individual Defendants in
addressing the discriminatory behavior of Dr. Simon and the discriminatory application of the
two-publications requirement. FAC, at ¶ 63. However, instead of assisting Mr. Zapata, these
Individual Defendants went out of their way to facilitate and to endorse Dr. Simon’s conduct,
informing Mr. Zapata that he simply needed to comply with Dr. Simon’s discriminatory dictates,
despite these Individual Defendants’ knowledge of the unequal application of the twopublication requirement, their ability to alter Dr. Simon’s discriminatory dictates, and the
impermissible continuation of Dr. Simon as Mr. Zapata’s dissertation chair according to Texas
Tech’s own policies. FAC, at ¶¶ 64-70. In August of 2021 and beyond, with no resistance from
any of the other Individual Defendants, Dr. Simon simply kept on demanding further
“corrections.” FAC, at ¶¶ 76-83, 85, 90-91. Dr. Sheridan, the Dean of the Graduate School and
the Vice Provost for Graduate and Postdoctoral Affairs, in particular, not only pushed Mr. Zapata
to comply with Dr. Simon’s demands but also prodded him to complete the process, despite the
fact that it was Dr. Simon who continued to obstruct that completion. FAC, at ¶¶ 79, 84.
On or about September 26, 2021, Mr. Zapata emailed Dr. Sheridan about the “two
publications” requirement, which by this point rested solely in the hands of Dr. Simon. FAC, at
¶ 86. Dr. Sheridan replied that he could not provide guidance on this “requirement” and
instructed Mr. Zapata to direct his energy towards completing his dissertation. Id. The Dean of
the College of Engineering, Dr. Albert Sacco Jr., was also copied on this email and told Mr.
Zapata on September 27, 2021, that he needed “…to get that 2nd paper out ASAP…if this is not
the case, please let me know for in[sic] has an impact on my agreement to help with your spousal
accommodation.” Id. Mr. Zapata reasonably construed these words as a threat to his previously
granted spousal accommodation and his instructor position in the Department. Id.

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On or about September 28, 2021, Mr. Zapata retained an attorney to help him initiate a
formal grievance process pursuant to Texas Tech policies, due to the possibility of losing his job
as a result of his complaints about Dr. Simon’s behavior and the unequal treatment of the “two
publications” policy, the ever-expanding list of dissertation “corrections” sent by Dr. Simon, and
Texas Tech’s refusal to help him resolve this matter. FAC, at ¶ 87. The grievance letter was
filed on October 14, 2021, with Dr. Sheridan, who left the grievance unaddressed. Id. No
committee was ever convened to address Mr. Zapata’s grievance letter. Id. No formal decision
regarding his grievance letter was ever communicated to Mr. Zapata, as required by Texas
Tech’s own policies. Id.
Mr. Zapata resigned his full-time instructor position from the Department on October 25,
2021, effective November 8, 2021, giving two-weeks’ notice. FAC, at ¶ 92. Resigning from his
job was a very difficult decision, not only because of lost income, but also because, as a person
with diabetes, Mr. Zapata lost his health insurance coverage to get affordable life-sustaining
medication. Id. Also, with his international status changed as a worker and without a job, Mr.
Zapata had only ninety days to find another job or be forced to leave the United States, where he
had lived for the past eight years. Id.
Only after multiple further iterations of email exchanges of a similar nature did Dr.
Simon finally on November 12, 2021, a week after the November 5 official university deadline
to submit the dissertation, put an end to the dissertation process by giving her final approval to
the dissertation. FAC, at ¶ 93. Shockingly, the previous day, on November 11, 2021, after Mr.
Zapata’s resignation from his full-time job became effective, the Associate Dean of Research and
Graduate Programs, Dr. Weeks, went to talk to one of the classes Mr. Zapata used to teach and
referred to him as a “terrorist” in front of his previous students, presumably as a form of public

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retaliation against Mr. Zapata for his efforts to protect his rights and to ensure the fairness of
Texas Tech’s processes and procedures. FAC, at ¶ 94.
As discussed above, the selective enforcement of the “two publications” policy against
Mr. Zapata and only against Mr. Zapata further demonstrates discrimination and arbitrariness on
the part of Defendants. FAC, at ¶ 95. About two weeks prior to Mr. Zapata’s Summer 2021
commencement, the Department and the Graduate School informed Mr. Zapata that they would
enforce a policy with respect to him regarding PhD students needing two publications to qualify
to graduate, despite the fact that they enforced this supposed “policy” against none of Mr.
Zapata’s Asian groupmates during the Spring 2021 semester and other Asian PhD students
during subsequent semesters. Id. This “two publications” policy states the following: “PhD
students are required to have two publications accepted in peer reviewed journals or indexed
conference proceedings accepted by chair prior to their defense. These are minimums and
individual departments can have higher standards.” Id. The policy does not appear in the
Department’s handbook, which purports to contain the policies, requirements, and procedures
governing the Department. Id. It is also absent from the university catalog as a requirement for
graduation from the Department’s PhD program. Id. It can be found only in the Whitacre
College of Engineering 40.20 operation policy (“WCOE OP 40.20”) available only on the
Whitacre College of Engineering website, and, on information and belief, was first made
available more than two years after Mr. Zapata had enrolled in the Department. FAC, at ¶ 96.
Neither Mr. Zapata nor other PhD students in the Department had been directed to this website
as a guide to the policies governing the requirements of the Department. Id.
Mr. Zapata is aware of at least ten (10) similarly situated students, all Asian and of Asian
national origins, who were permitted to graduate despite not meeting the “two publications”

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requirement, and several of whom enrolled during the same semester as Mr. Zapata. FAC, at
¶ 98. Six (6) of these Asian students had Dr. Simon as their PhD advisor and were Mr. Zapata’s
research groupmates. Id. Three (3) of these six (6) were from China and graduated from Texas
Tech in the Spring 2021 semester with a PhD with only one paper accepted or published prior to
their doctoral defense. Id. At least one of these individuals still has only one published paper
even to this day. Id. Two (2) were from Bangladesh and graduated from Texas Tech in the Fall
2019 and Spring 2021 semesters with a PhD with only one paper accepted or published prior to
their doctoral defense. Id. Others published a second paper only long after their graduation from
Texas Tech. Id. One (1) student from India graduated with two publications in the Fall 2019,
but on one of those publications he was listed as third author, such that it would not have
qualified as a publication at all for purposes of the “two publications” requirement as it was
finally communicated to Mr. Zapata by Dr. Chen and the other Graduate Committee members
(Dr. Wei Li, Dr. Siva Vanapalli, and Dr. Harvinder Singh). Id.
Four of the six individuals discussed above who had Dr. Simon as their dissertation
advisor were awarded their PhDs in Spring 2021, precisely when Mr. Zapata expected to
graduate. FAC, at ¶ 98. Neither Texas Tech nor any of the other Defendants enforced the “two
publications” policy against any of the ten individuals discussed above who were permitted to
graduate before, during, and after Mr. Zapata expected to graduate. Id. This policy was
disparately applied to Mr. Zapata because he was Hispanic. Id. Despite the fact that Mr. Zapata
reached out to the Individual Defendants for their help in addressing this disparate treatment,
they did nothing but cooperate in subjecting him to it. FAC, at ¶¶ 99-113.
On or about November 14, 2021, after Dr. Simon finally fully approved his doctoral
dissertation, Mr. Zapata sent an email to Dr. Sheridan asking him if he would now receive his

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PhD. FAC, at ¶ 114. Dr. Sheridan replied to Mr. Zapata on or about November 19, 2021,
making it clear that he still wanted Mr. Zapata to keep working with Dr. Simon to get his second
publication submitted and accepted. Id. After Mr. Zapata followed up the same day about why
he was still required to fulfill the “two publications” rule, when the second publication now
depended entirely on Dr. Simon’s actions, Dr. Sheridan replied on or about November 22, 2021,
defending the position that Mr. Zapata still needed to have another paper accepted and published.
Id. Dr. Sheridan continued to deny Mr. Zapata a PhD degree based on the “two publications”
rule, despite the evidence Mr. Zapata had provided on October 14, 2021. Id. Dr. Sheridan was
fully aware that the “two publications” policy was disparately applied to Mr. Zapata. Id.
On or about December 2, 2021, the Associate Dean of Research and Graduate Programs,
Dr. Weeks, asked Mr. Zapata to meet with him. FAC, at ¶ 117. In this meeting, Dr. Weeks
proposed that Mr. Zapata send an email to Dr. Sacco asking him for “a special disposition”
towards the approval of Mr. Zapata’s PhD degree for the Fall 2021 given that Dr. Simon had
finally submitted a publication the previous day. Id. None of Mr. Zapata’s former Asian peers,
who were allowed to graduate without meeting the “two publications” rule, were required to ask
for “a special disposition.” Id. Nonetheless, Mr. Zapata accepted Dr. Weeks’ suggestion since
he was desperate to finally obtain his PhD and get out of a toxic environment. Id. The same
day, on December 2, 2021. Mr. Zapata sent an email to Dr. Sacco asking for the “special
disposition.” Id. The “special disposition” he sought was a waiver of the requirement that he
waits until the second publication was actually accepted by a scientific journal before he could
graduate. Id. On December 2, 2021, a few minutes after Mr. Zapata asked for the “special
disposition,” Dr. Sacco replied and waived the acceptance requirement of Mr. Zapata’s second
publication, noting simply: “Given the circumstances, I agreed to waive the acceptance

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requirement.” FAC, at ¶ 118. Only then was Mr. Zapata permitted to graduate. FAC, at ¶ 119.
Mr. Zapata filed discrimination charges with the Office for Civil Rights (“OCR”) and
with the Equal Employment Opportunity Commission (“EEOC”) on or about August 31, 2022.
FAC, at ¶ 148. These entities have not yet signaled to Mr. Zapata that their respective
investigations are complete. Id. As a result of the discriminatory behavior by Texas Tech and
several of its officials, Mr. Zapata has been severely damaged in the following ways: he lost
money; he lost his job; he lost his health insurance—a particularly grave consequence for a
person with diabetes; he was required to pay money and remain in the PhD program for
additional academic semesters; he was left without funding while forced to continue as a PhD
student; he lost his personal belongings; he also lost his intellectual ideas and was deprived of
proper recognition for those ideas; his mental health deteriorated; his ability to reside in the
United States was jeopardized; he was forced to make life-altering decisions like moving away
from the home he started to build with his partner; he was prevented from proposing to his
girlfriend during his graduation ceremony; he is currently being denied an MS degree, to which
he is entitled if the same standards are applied to him as have been repeatedly applied to his
former Asian PhD student peers. FAC, at ¶¶ 138-149. Mr. Zapata suffered these injuries
entirely because Dr. Simon and other Texas Tech officials discriminated and retaliated against
him in violation of his constitutional rights. Id.
II.
A.

ARGUMENT

Standard of Review
In “evaluating a Rule 12(b)(1) motion to dismiss, [the Court] must take all of the factual

allegations in the complaint as true, but [is] not bound to accept as true a legal conclusion
couched as a factual allegation. A district court is empowered to find facts as necessary to
determine whether it has jurisdiction.” Daniel v. Univ. of Texas Southwestern Med. Ctr., 960
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F.3d 253, 256 (5th Cir. 2020) (internal quotation marks, ellipses, and brackets omitted).
However, where, as here, a movant under Rule 12(b)(1) relies only on its motion without any
attached evidence, the movant’s challenge to subject matter jurisdiction is a facial attack, and the
court’s inquiry into the motion to dismiss is based on the sufficiency of the plaintiff’s pleadings.
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).
Dismissal under Fed. R. Civ. P. 12(b)(6) is only appropriate when the “plaintiff has not
alleged enough facts to state a claim to relief that is plausible on its face and has failed to raise a
right to relief above the speculative level.” Shakeri v. ADT Sec. Services, Inc., 816 F.3d 283, 290
(5th Cir. 2016) (citations and internal quotation marks omitted). Furthermore, in evaluating a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court “must construe facts in the light most
favorable to the nonmoving party, as a motion to dismiss under 12(b)(6) is viewed with disfavor
and rarely granted.” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citations and internal
quotation marks omitted). Upon application of these standards, this Court should deny
Defendant’s Motion in its entirety.
B.

Texas Tech Is Not Entitled to Sovereign Immunity with Respect to Plaintiff’s Title
VI Claim.
Despite Defendant’s overly broad contention, Texas Tech is not entitled to sovereign

immunity with respect to Plaintiff’s Title VI claim—the only claim for which Texas Tech itself
is named as Defendant. Texas Tech requests and receives financial assistance and funding from
the federal government. FAC, at ¶ 151. The United States Supreme Court has recognized that
“Section 1003 of the Rehabilitation Acts Amendments of 1986, 100 Stat. 1845, 42 U.S.C.
§ 2000d-7, expressly abrogated States’ sovereign immunity against suits brought in federal court
to enforce Title VI . . . .” Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

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Plaintiff’s Claims Against the Individual Defendants in Their Official Capacities
Are Not Duplicative of His Claims Against Texas Tech.
Defendants contend that Plaintiff’s claims against the Individual Defendants in their

official capacities are duplicative of his claims against Texas Tech. However, they are not.
Plaintiff’s claims against the Individual Defendants in their official capacities are claims
for injunctive relief under federal law. As the Fifth Circuit has explained, “Ex parte Young
allows, under certain circumstances, the plaintiff to seek injunctive relief under Section 1983.”
Walker v. Livingston, 381 Fed. Appx. 477, 479 (5th Cir. 2010). These circumstances arise when
the plaintiff seeks a remedy against “state officials to force compliance with the Constitution and
federal law . . . .” Fairley v. Stalder, 294 Fed. Appx. 805, 811 (5th Cir. 2008). That is what
Plaintiff is seeking here when he names the Individual Defendants in their official capacities.
Furthermore, it should be noted that Plaintiff asserts claims against the Individual
Defendants in their personal capacities as well, including against Dr. Simon who was not even an
employee of Texas Tech for most of the relevant time period and had no authority to act as
dissertation chair according to Texas Tech’s own policies and who, therefore, would enjoy no
sovereign immunity in any event.
D.

Defendants Are Not Entitled to Qualified Immunity with Respect to Plaintiff’s Due
Process Claims.
Defendants contend that they are entitled to qualified immunity2 with respect to

Plaintiff’s due process claims because (1) those claims fail as a matter of law, and (2) Plaintiff’s
due process rights in this context were not clearly established at the time of the conduct at issue

2 It should be noted that the defense of qualified immunity is not available to the Individual

Defendants when sued in their official capacities. See, e.g., Marlowe v. LeBlanc, 2022 U.S. App.
LEXIS 16128, *6 (5th Cir. June 10, 2022). Thus, Defendants’ arguments concerning qualified
immunity relate only to claims against them in their personal capacities. As shown in the text
above, those arguments fail even there.
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in this matter. Defendants are wrong on both counts.
As an initial matter, Plaintiff’s due process claims do not fail as a matter of law. After
spending page after page of briefing summarizing due process jurisprudence in the abstract and
unnecessarily noting that Plaintiff’s claims do not fit into certain broad categories, Defendants
ultimately seek to undermine those claims merely by mischaracterizing them.
First, Defendants mischaracterize Plaintiff as basing his claims on the fact that “contrary
to his academic superior . . . in his opinion his dissertation was so ‘perfect’ that it did not need
corrections.” Motion, at 15. This mischaracterization is absurd, and Plaintiff alleges no such
thing. Rather, he alleges that Dr. Simon engaged in countless procedural anomalies as a
mechanism for obstruction, such as requiring him to make innumerable changes in the
dissertation after she had already approved it as final by signing his approval form at his
dissertation defense, that she never employed with Asian PhD students in the Department. See,
e.g., FAC, at ¶¶ 25-26. No dissertation is ever perfect either before or after its finalization.
Noting that simple and obvious fact, however, does not address or account for the circumstance
of a dissertation supervisor who delays even the defense of Plaintiff’s dissertation, contrary to
her approach to those of her Asian students (see, e.g., FAC, at ¶¶ 25-26), and then steadfastly
refuses to allow the dissertation to proceed after having formally indicated her approval—again
contrary to her approach to any Asian student under her purview. The dispute lies not in the
precise merits of the dissertation itself. The dispute lies in whether Dr. Simon approached the
dissertation differently for Plaintiff than she did for similarly situated Asian students.
Second, Defendants mischaracterize the “two-publication rule” as irrelevant based on the
view that the application of the rule did not ultimately hinder his graduation. Motion, at 16.
However, Defendants’ argument here overlooks at least two critical points. As an initial matter,

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Defendants did not waive the two-publication rule. They only waived the requirement that the
publication, once completed, had to be accepted by a relevant journal before Plaintiff could
graduate. See, e.g., FAC, at ¶ 118. Plaintiff still had to complete the publication itself, unlike
any Asian PhD student in the Department. See, e.g., FAC, at ¶ 118. Moreover, the application
of the “two-publication rule” to Plaintiff alone demonstrates that it was not merely Dr. Simon
herself that delayed Plaintiff’s graduation through discriminatory motives. By imposing the
“two-publication rule” on Plaintiff and not on Asian PhD students in the Department, the other
individual Defendants endorsed and facilitated Dr. Simon’s discriminatory actions and
omissions. By waiving the acceptance requirement only after Dr. Simon had finally given her
assent finally to submit the second publication, — even in contradiction to the wording of the
“two publications policy” — Defendants show only that much more clearly how their own
motivations coincided with those of Dr. Simon and the arbitrary and capricious nature of their
application of the “two publications” policy.
Defendants then contend that not every deviation from a university’s own rules is
actionable. Motion, at 16-17. However, Plaintiff does not base his claims merely on the bare
fact that Texas Tech University and the individual defendants deviated from rules and policies.
Rather, he bases his claims on the fact that Defendants deviated from these rules and policies
because of his race and country of national origin. It is the motivations behind the deviations
that form the core of his claims. Deviations from rules and policies because of race and country
of national origin are by their very nature violations of the Fourteenth Amendment, regardless of
Defendants’ contorted efforts to suggest otherwise.
Defendants then contend that the defense of a dissertation is necessarily a rigorous
process, that a dissertation advisor must exercise significant judgment in handling that process,

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and that other individual Defendants simply deferred to Dr. Simon’s judgment in her capacity as
the dissertation advisor. Motion, at 17. While the defense of a dissertation is unquestionably
rigorous, this Court must accept Plaintiff’s allegations as true with respect to the defense of his
own dissertation for purposes of the motion to dismiss stage of these proceedings. Plaintiff has
alleged with substantial supporting factual allegations that Dr. Simon crafted her approach on the
basis of discriminatory motivations rather than any reasoned professional judgment and that the
other individual Defendants endorsed and facilitated that approach. Defendants may not evade
those allegations simply by alleging otherwise in their Motion.
Similarly, Defendants may not extract individual allegations from their context and
pretend that Plaintiff bases his constitutional claims merely on the fact that Dr. Simon required
corrections. Motion, at 18. Rather, as explained above, it is the procedural anomalies that
surrounded those corrections that lie at the root of Plaintiff’s claims. Dr. Simon forced Plaintiff
to make unnecessary changes to the dissertation after she had already approved it at the
dissertation defense in a manner utterly like anything she imposed on any Asian PhD students in
the Department. Plaintiff complains not of the bare fact of a requirement of corrections, but
rather of his disparate treatment on the basis of his race and national origin.
Finally, Defendants argue that Plaintiff has no property interest in higher education.
Motion, at 18-19. However, Defendants overlook the fact that Plaintiff need not prove a
property interest in higher education in the abstract.3 The Fifth Circuit has recognized that

3 Provisions of the Texas Education Code, such as § 61.003, which use the language of

entitlement, weigh strongly in favor of recognizing such property interests. Furthermore,
Plaintiff has alleged a contractual relationship with Texas Tech, which would create property
interests as well. See, e.g., Doe v. White, 440 F. Supp. 3d 1074, 1087-1088 (N.D. Cal. 2020)
(summarizing the law across circuits in this area and noting the impact of a contractual
relationship on property interests in higher education).
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students in Texas have a liberty interest in higher education. Plummer v. Univ. of Houston, 860
F.3d 767, 773 (5th Cir. 2017) (citing Univ. of Tex. Med. Sch. at Hous. v. Tran, 901 S.W.2d 929,
929-30 (Tex. 1995)). Furthermore, courts have held that students in higher education have a
protected liberty interest in the right to pursue education free of racial discrimination. In Thomas
v. Gee, 850 F. Supp. 665 (S.D. Ohio 1994), for example, in evaluating the discriminatory
treatment of a black female in medical school, the court held that:
This interest -- the right to pursue her education free of racial discrimination -- is a
fundamental right not just implicitly protected by the Constitution but expressly protected
by the Equal Protection Clause. This, then, is one of those cases referred to by the Sixth
Circuit in which the spheres of equal protection and substantive due process "overlap. .
.so that a violation of one will constitute a violation of the other."
See also, e.g., Rigdon v. Ga. Bd. of Regents, 2008 U.S. Dist. LEXIS 59422, *6 (S.D. Ga. August
4, 2008) (“[T]he Court’s denial of qualified immunity on the due process claim turned primarily
on evidence that the process may have been rigged against Plaintiff for reasons of racial
discrimination and retaliation.”) Likewise, here, Plaintiff alleges that Defendants violated his
right to pursue his education free of racial discrimination. This right does not differ in its
implications based on the level of education one has attained. Rather, it is implicit at all levels of
education and all levels of governmental action in that it is guaranteed expressly by the Equal
Protection Clause of the Fourteenth Amendment itself. Thus, when Defendants contend that the
rights at issue are not “clearly established” because they do not exist at all (Motion, at 19),
Plaintiff respectfully responds that the rights at issue were both formulated and clearly
established by the express language of the Fourteenth Amendment and by the myriad of cases
since its enactment prohibiting racial discrimination in governmental action.
E.

Defendants Are Not Entitled to Qualified Immunity with Respect to Plaintiff’s
Equal Protection Claims.
Defendants also claim qualified immunity with respect to Plaintiff’s Equal Protection

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claims. However, their arguments in support of such qualified immunity fail.
Defendants again rely on factual suppositions that go to the merits of Plaintiff’s claims.
They contend, for example, that Dr. Simon merely required corrections to Plaintiff’s dissertation
as part of her reasoned judgment as a dissertation advisor. Motion, at 20. They further claim
that Plaintiff offers only subjective opinion that the corrections were unnecessary. Id. However,
Defendants once again overlook the fact that Plaintiff does not base his discrimination claims on
the bare fact of corrections, but rather on the fact that Dr. Simon imposed unnecessary
corrections long after both she and the rest of the dissertation committee had approved Plaintiff’s
dissertation at a dissertation defense which itself had been inappropriately delayed, all in marked
contrast to the manner in which she addressed the circumstances of the Asian PhD students in the
Department. See, e.g., FAC, at ¶ 26. Defendants observe that Plaintiff does not allege that Dr.
Simon never required Asian students to make corrections to their dissertations. Motion, at 20.
Of course, Plaintiff makes no such absurd allegation. He does, however, allege that Dr. Simon
never required Asian students to make such corrections to their dissertation after having already
approved their dissertation, changed their international status, and in the midst of other
procedural anomalies which, individually and collectively, demonstrate a pattern of disparate
treatment. See, e.g., FAC, at ¶¶ 26, 53, 55-56. See generally Section I above. In fact, that
pattern is precisely what Plaintiff alleges. Furthermore, he does not present such allegations in
conclusory fashion. He supports the allegations with detailed factual allegations which, instead
of addressing, Defendants routinely ignore or mischaracterize. Defendants may not brush away
Plaintiff’s allegations merely by ignoring or distorting their substantive content.
Defendants then contend that the “two-publications” requirement “involved academic
decision-making by Dr. Simon.” Motion, at 20. However, Plaintiff nowhere alleges that Dr.

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Simon imposed this requirement on him. Rather, he alleges that other Defendants insisted that it
was required of all PhD students in the Department, despite the fact that it was never imposed on
Asian PhD students. See, e.g., FAC, ¶¶ 60, 95, 98. Nothing in Plaintiff’s allegations suggest that
the requirement was imposed only on him because of some sort of academic analysis.
Defendants once again distort Plaintiffs’ allegations in an effort to shoehorn them into the
ordinary academic context. The manner in which Defendants acted towards Plaintiff was
anything but ordinary. Plaintiff alleges that he was treated differently on the basis of his race and
country of national origin. This Court should evaluate his allegations as they are presented,
rather than as Defendants would have them be.
Defendants then repeat many of the same arguments that they made with respect to the
due process claims, such that Plaintiff respectfully refers the Court to Section II.D above.
Plaintiff once again notes that Defendants foist a reductionist framework onto Plaintiff’s
pleading which does not match the actual allegation in the Complaint. Plaintiff alleges that Dr.
Simon was motivated by discriminatory motives and that the other Defendants endorsed and
facilitated her actions designed to further those motives. In any event, Defendants’ argument
ultimately reduces to the following assertion: “[F]or Plaintiff to assert that intentional
discrimination was at play to such a degree that it overrode professional academic judgment in
requiring him to meet degree requirements is implausible and does not permit more than the
possibility of misconduct.” Motion, at 21. Such an assertion asks this Court to ignore Plaintiff’s
factual allegations in their entirety and simply to assume that it is implausible for intentional
discrimination on the basis of race and national origin to take place in an academic institution of
higher education. Such assumption run completely counter to the standard by which this Court
should be guided in evaluating a motion to dismiss, as described in Section II.A above.

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Plaintiff Asserts a Viable Section 1981 Claim, and Defendants Are Not Entitled to
Qualified Immunity.
Defendants contend that Plaintiff’s Section 1981 claims fail because factual issues exist

as to whether the contractual materials referenced by Plaintiff in his allegations can be
interpreted as binding on Defendants. Motion, at 22-25. However, with this argument,
Defendants once again ask this Court to make inappropriate factual determinations.
As an initial matter, Defendants argue that Plaintiff did not allege the source of the
contractual relationship between himself and Texas Tech and its agencies. On the contrary,
Plaintiff specifically points to the Department’s handbook and the policies referenced in that
handbook as the source of that contractual relationship. See, e.g., FAC, at ¶ 174. While
Defendants would have Plaintiff provide more detail with respect to this handbook and its
implications, no such heightened pleading requirement exists here. Plaintiff has not alleged
fraud or any claim subject to Fed. R. Civ. P. 9(b). He has pointed to a very specific document as
the source of the contractual relationship. That is sufficient for purposes of notice pleading.
Defendants further complain that Plaintiff does not allege the identity of the individual or
individuals who told him that the Departmental handbook contained the requirements that would
govern his advancement through the program and his ultimate graduation. Again, no such
heightened pleading requirements apply. Plaintiff has provided sufficient information to
establish the contractual relationship for notice pleading purposes.
Defendants then cite several cases as having “addressed whether a university handbook
constitutes a contract under Texas law.” Motion, at 23. Defendants cite these cases for the
proposition that some such handbooks might not constitute contracts by virtue of express
disclaimers or provisions that terms might change over time. Id. However, none of these cases
were decided at the pleading stage. See, e.g., University of Tex. Health Sci. Ctr. v. Babb, 646

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S.W.2d 502 (Tex. App.—Houston [1st Dist.] 1982, no writ) (affirming temporary injunction as
modified); Eiland v. Wolf, 764 S.W.2d 827, 838 (Tex. App.—Houston [1st Dist.] 1989, writ
denied) (reversing judgment after de novo review of bench trial record); Tobias v. University of
Texas at Arlington, 824 S.W.2d 201, 211 (Tex. App.—Fort Worth 1991) (affirming summary
judgment); Southwell v. Univ. of Incarnate Word, 974 S.W.2d 351, 355-6 (Tex. App.—San
Antonio 1998, pet. denied) (affirming summary judgment). Thus, the very cases cited by
Defendants themselves demonstrate that the issues bound up with the analysis of whether or not
a contract existed are not properly decided on a motion to dismiss, but only after presentation of
the obligation to provide more detail on these issues in a notice pleading.
Defendants further contend that Plaintiff’s Section 1981 claim must fail against the
Individual Defendants because he did not have any contractual relationship with them as
individuals. However, in Perry v. VHS San Antonio, L.L.C., 990 F.3d 918, 932-3 (5th Cir. 2021),
the Fifth Circuit acknowledged that, in circumstances in which individual defendants are only
nominally third parties and are acting on behalf of the contracting entity when they engage in
otherwise actionable discriminatory acts and omissions, they may be liable under Section 1981.
Defendants’ further argument that a Section 1981 claim against the Individual
Defendants in their official capacities is barred by sovereign immunity has been addressed in
Section II.C above. In general, claims against such defendants in their official capacities for
injunctive relief are brought pursuant to Ex parte Young and thus survive sovereign immunity.
G.

Plaintiff States a Viable Title VI Claim Against Texas Tech University.
In seeking to defeat Plaintiff’s Title VI claim at the pleading stage, Defendants once

again resort to mischaracterizing or ignoring Plaintiff’s allegations. They reduce Plaintiff’s
claims to the simple allegation that his dissertation advisor required him to make corrections on
his dissertation and held him to a “two-publication” requirement. As explained at length in
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Section II.D above, Plaintiff alleges far more than this. He alleges that, with the help of the other
Defendants, Dr. Simon engaged in procedural anomalies not applied to the Asian PhD students
in the Department for the express purpose of obstructing Plaintiff’s graduation due to
discriminatory motives. Once again, Defendants may not simply ignore Plaintiff’s allegations or
contort those allegations to fit their arguments.
Defendants then argue that “[w]hen a Title VI claim does not involve an official policy of
intentional discrimination, he is relegated to alleging an ‘appropriate person’ had actual
knowledge of the discrimination [and] responded with deliberate indifference by failing to
institute corrective measures.” Motion, at 27. However, Plaintiff expressly alleges that a
number of Individual Defendants had actual knowledge of the discrimination, including Dr.
Albert Sacco, Jr., the Dean of the College of Engineering (FAC, at ¶ 11), Dr. Mark A. Sheridan,
Dean of the Graduate School and Vice Provost for Graduate and Postdoctoral Affairs (FAC, at
¶ 12), and Dr. Brandon Weeks, the Dean of Research and Graduate Programs at relevant times
(FAC, at ¶ 13) . See, e.g., FAC, at ¶¶ 99-114, Dr. Botte, Chair of the Department (FAC, at
¶ 105), Dr. Chau-Chyun Chen, Graduate Advisor of the Department (FAC, at ¶ 110). He also
alleges facts that can reasonably be construed as showing deliberate indifference on the part of
these and the other Defendants in that they actively endorsed and facilitated Dr. Simon’s
discriminatory actions and omissions. See, e.g., FAC, ¶ 99-114. These allegations may not be
ignored at the pleadings stage, but suffice to require consideration on the merits.
H.

Defendants’ Arguments Concerning Title VI Retaliation Fail
Defendants contend that Plaintiff’s claims for retaliation under Title VI fail. Motion, at

27-30. However, their arguments fail.
Defendants rely primarily on the proposition that Plaintiff first engaged in protected
activity by filing a formal grievance in October 2021. Motion, at 29. However, in so assuming
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Defendants ignore the cases they themselves cite. See, e.g., Peters v. Jenney, 327 F.3d 307, 320
(4th Cir. 2003) (“As in other civil rights contexts, to show protected activity, the plaintiff in a
Title VI retaliation case need only . . . prove that he opposed an unlawful employment practice
which he reasonably believed had occurred or was occurring.”). The Fifth Circuit concurs with
this analysis. See, e.g., Scott v. United States Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir.
2023) (“[T]o qualify as a protected activity, the employee’s conduct must have opposed the
employer’s practice and that opposed practice must have been unlawful.”) (internal quotation
marks omitted). Thus, there is no requirement that the opposition have taken the form of the
submission of a formal grievance. Plaintiff alleges that he opposed Dr. Simon’s conduct
throughout the summer of 2021. He alleges that Defendants retaliated to such opposition in a
variety of ways, including, for example, assisting Dr. Simon in obstructing Plaintiff’s finalization
of his dissertation and imposing the “two-publications” requirement—a requirement they applied
to him, but not to the Asian PhD students in the Department. For the same reasons, Defendants’
arguments concerning Dr. Simon’s lack of knowledge of Plaintiff’s grievance submission are
meritless. The formal grievance submission was not the earliest instance of protected activity in
which Plaintiff engaged. He had been engaged in such activity the entire preceding summer.
Defendants then complain that these alleged examples of retaliation are not material.
They contend without support that only suspension or dismissal actions can constitute “material
actions.” Motion, at 30. However, there is no such requirement. The Sixth Circuit has, for
example, held merely that a plaintiff proves an adverse employment action that is not de minimis.
See, e.g., Threat v. City of Cleveland, 6 F.4th 672, 678-9 (6th 2021). See also, e.g., Boshaw v.
Midland Brewing Co., 32 F.4th 598, 604 (6th Cir. 2022) (noting that an adverse employment
action could be delay or denial of a promotion).

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Defendants’ arguments concerning Plaintiff’s retaliation claims thus revolve around
mischaracterizations of both fact and law. This Court should deny Defendants’ Motion.
I.

Defendants’ Arguments Concerning Title VI and Teacher-on-Student Harassment
Fail.
Defendants contend that the Fifth Circuit does not recognize a Title VI claim for teacher-

on-student harassment. Motion, at 31. However, Plaintiff does not base his Title VI claims on
such allegations. Rather, Plaintiff alleges the factual circumstances surrounding Dr. Simon’s
harassment directed towards him and other Hispanics as support for his allegations that her
actions were motivated by discriminatory intent and that, by endorsing and facilitating such
actions, the other Defendants engaged in discrimination themselves. Thus, Plaintiff’s allegations
concerning Dr. Simon’s harassment do not form the core of his claims, but serve rather as
components of the factual framework that give evidentiary support to those core claims.
J.

Plaintiff Has Adequately Pled His Request for a Master’s Degree and Legal Basis
Exists for Him to Obtain Such Relief.
Despite Defendants’ arguments to the contrary, Plaintiff has adequately pled his request

for a Master’s degree, and this Court has the authority to grant such a request. Defendants
complain that he does not allege that he requested such a degree during his time at Texas Tech or
that he submitted an application to the appropriate officials or agencies of Texas Tech.
However, these contentions miss the point. Plaintiff alleges that Asian PhD students in the
Department were consistently presented with information and opportunities allowing them to
receive a Master’s degree in conjunction with their work on the PhD, despite the fact that
Plaintiff was presented with no such information and opportunities and the fact that such
information and opportunities were not contained within the formal written policies of the
Department. See, e.g., FAC, at ¶¶ 138-149. Plaintiff could thus not reasonably have requested
or applied for the degree, as he had no way of knowing the possibility of obtaining it existed.
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Defendants then contend that Plaintiff’s allegations of disparate treatment are implausible
because “to suggest that TTU would conceal the availability of a degree, any degree, from the
general public or from students, much less against persons based on race, is . . . fundamentally
contrary to TTU’s obvious interest in the advancement of education . . . .” Motion, at 32.
Defendants thus once more ask this Court to make assumptions about their general character and
to find that allegations of wrongdoing must be dismissed because they are not the type of
individuals or entities to do such things. Such arguments are frivolous and cannot support a
motion to dismiss. After all, the concept of plausibility as a test for the viability for pleadings
has nothing to do with how the Court views the parties involved or the likelihood of those parties
engaging in the alleged conduct. Rather, a claim “has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff has done so.
Defendants also seek to discredit Plaintiff’s request for a Master’s degree simply because
he already had a Master’s degree. Motion, at 33. This argument would only make sense if
Plaintiff’s prior Master’s degree were in precisely the same area as the Master’s degree he now
seeks. It was not.
Likewise, Defendants’ scoffing arguments concerning Plaintiff’s allegation that he
wanted to propose at his graduation are out of place. The fact that he alleges wrongdoing against
Texas Tech and various individual defendants does not mean that his graduation meant nothing
to him and that its ceremonial circumstances carried no weight. He adequately alleges the
contrary, and Defendants’ related arguments amount to nothing but belittling caviling.
Although Defendants describe Plaintiff’s request for the Master’s Degree as retroactive
and challenge Plaintiff to cite applicable legal authority, their argument misses the mark on this

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front as well. Plaintiff’s request, like all requests for injunctive relief, is prospective. For legal
authority, Plaintiff need point no further than Fed. R. Civ. P. 65. See also Spallone v. United
States, 493 U.S. 265, 276 (1990) (“When a district court’s order is necessary to remedy past
discrimination, the court has an additional basis for the exercise of broad equitable powers.”)
K.

Plaintiff Does Not Rely on the Long History of Discrimination in the Department to
Serve as the Basis for His Claims.
Contrary to Defendants’ contentions, Plaintiff does not rely on the long history of

discrimination in the Department to serve as the basis for his claims. Rather, as discussed in
Section II.D above, Plaintiff points to numerous procedural anomalies directed only at Plaintiff
and not at the Asian PhD students in the Department to serve as that basis. Plaintiff supplements
his factual allegations with a discussion of the Department’s history because it adds additional
factual support for the proposition that the decisions made related to Plaintiff arose out of
discriminatory motivations. Defendants appear to argue that Plaintiff must show individualized
discrimination and cannot rely on historical context to prove his allegations. Plaintiff has no
intention of relying on historical context, except to show that the individualized discrimination
he experienced is not an outlier. The fact that Defendants complain of Plaintiff’s allegations
concerning this historical context is particularly ironic in light of their earlier complaint that
Texas Tech and the associated Defendants are simply not the sort of individuals or entities that
would engage in such discriminatory conduct. Defendants contend that Plaintiff’s claims should
be analyzed through the McDonnell Douglas analytical framework. Plaintiff agrees, at least with
respect to issues regarding circumstantial rather than direct evidence, and will prove up his
claims through that framework at the appropriate time. However, that appropriate time has not
arrived at the motion to dismiss stage.

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Plaintiff Has Adequately Alleged Entitlement to Injunctive Relief.
Defendants contend that Plaintiff has no entitlement to injunctive relief because he cannot

show irreparable harm from the delay in his graduation. Motion, at 35-36. However, Plaintiff
does not seek injunctive relief to prevent delay in his graduation. As his graduation has already
occurred, such relief would be meaningless. Rather, Plaintiff seeks prospective relief in the form
of an order enjoining continued enforcement against Plaintiff of discriminatory policies and
practices and continued refusal to provide a Master’s degree that Defendants have provided the
Asian PhD students in the Department—a refusal which thus itself constitutes continued
enforcement against Plaintiff of discriminatory policies and practices.
M.

Plaintiff May Seek Punitive Damages Against the Individual Defendants.
Defendants contend that Plaintiff may not seek punitive damages against them because of

the bar against recovering such damages against Texas Tech under Title VI. However, Plaintiff
may recover such damages against the Individual Defendants under Section 1983. See, e.g.,
Smith v. Wade, 461 U.S. 30, 56 (1983) (“We hold that a jury may be permitted to assess punitive
damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference in the federally
protected rights of others.”) Section 1981 also allows for punitive damages. See, e.g., Abner v.
Kan. City S. R.R. Co., 513 F.3d 154, 160-1 (5th Cir. 2008).
III.

CONCLUSION

In light of the foregoing, Plaintiff respectfully requests that this Court deny Defendants’
Motion in its entirety.

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Respectfully submitted,
__/s/ Mark Whitburn______
Mark Whitburn
Texas Bar No. 24042144
Whitburn & Pevsner, PLLC
2000 E. Lamar Blvd., Suite 600
Arlington, Texas 76006
Tel: (817) 653-4547
Fax: (817) 653-4477
mwhitburn@whitburnpevsner.com
CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served on counsel of record for
Defendants on August 31, 2023, through the electronic filing service as follows:
Jason T. Contreras
Assistant Attorney General
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
__/s/ Mark Whitburn______

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