MOTION to Dismiss filed by Texas Tech University with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order Granting Motion to Dismiss) (Erickson, Kirstin)¶

Wells v. Texas Tech University, et al, No. 5:23-cv-00060 (N.D. Tex.) · Dkt. 16 · 2023-05-18 · 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 DIVISON
CARA WESSELS WELLS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY,
SAMUEL PRIEN, and LINDSAY
PENROSE,
Defendants.

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CAUSE NO. 5:23-CV-00060-H

DEFENDANT TEXAS TECH UNIVERSITY’S MOTION TO DISMISS PURSUANT TO
FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6)
TO THE HONORABLE U.S. DISTRICT JUDGE JAMES WESLEY HENDRIX:
Defendant Texas Tech University (“TTU”) files this Motion to Dismiss (“Motion”)
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), requesting the Court to dismiss
Plaintiff’s claims against TTU raised in her Original Complaint and Demand for Jury Trial
(“Complaint”). This Court should dismiss Plaintiff’s claims against TTU because they are barred
by sovereign immunity, are time-barred, fail for lack of standing, and/or fail to state a legally
cognizable claim.

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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
STANDARD OF REVIEW ............................................................................................................ 3
A. Rule 12(b)(1):................................................................................................................... 3
B. Rule 12(b)(6):................................................................................................................... 3
ARGUMENT .................................................................................................................................. 4
I. Most of Plaintiff’s claims against TTU are jurisdictionally barred by sovereign immunity. 4
A. Sovereign immunity bars Plaintiff’s claims under Chapter 21 of the Texas Labor Code
(Counts 5 and 7). .............................................................................................................. 5
B. Sovereign immunity bars Plaintiff’s state law negligence and intentional tort claims
(Counts 13, 16-18, 20). .................................................................................................... 6
C. Sovereign immunity bars Plaintiff’s claims related to patent inventorship against TTU
(Counts 8-9) .......................................................................................................................
7
II. Plaintiff lacks standing for her claim for correction of inventorship, or in the alternative, a
declaration of invalidity (Counts 8-9). ................................................................................... 9
III. Plaintiff fails to state a claim upon which relief may be granted under Fed. R. Civ. P.
12(b)(6). ............................................................................................................................... 10
A. Plaintiff’s Title VII and Chapter 21 claims (Counts 1-3, 5, 7) are time-barred because
Plaintiff failed to exhaust her administrative remedies.................................................. 10
B. Plaintiff’s Title IX claim is barred by the statute of limitations (Count 4). ................... 12
C. Plaintiff fails to state a claim for sexual harassment, hostile work environment, and
retaliation under Title VII (Counts 1-3). ........................................................................ 13
1. Sexual Harassment and Hostile Work Environment Under Title VII .................. 13
2. Retaliation Under Title VII ................................................................................... 14
D. Plaintiff fails to state a claim for sexual harassment under Title IX (Count 4). ............ 15
E. Plaintiff fails to state a claim for correction of inventorship and patent invalidity against
TTU (Counts 8-9). ......................................................................................................... 16
CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES
Cases

Page(s)

Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ....................................... 3, 14, 15, 16
Brazoria Cnty., Tex. v. E.E.O.C.,
391 F.3d 685 (5th Cir. 2004) ..................................................................................................... 15
Burroughs Wellcome Co. v. Barr Lab'ys, Inc.,
40 F.3d 1223 (Fed. Cir. 1994) ............................................................................................. 16, 17
Chou v. Univ. of Chicago,
254 F.3d 1347 (Fed. Cir. 2001) ................................................................................................... 9
City of Austin v. Paxton,
943 F.3d 993 (5th Cir. 2019) ................................................................................................... 5, 8
City of Hempstead v. Kmiec,
902 S.W.2d 118 (Tex. App. 1995) .............................................................................................. 6
City of Waco v. Williams,
209 S.W.3d 216 (Tex. App.—Waco 2006, pet. denied) ............................................................. 7
Cooper v. Dallas Police Ass’n,
278 F. App’x 318 (5th Cir. 2008) ............................................................................................. 15
Doe v. Edgewood Indep. Sch. Dist.,
964 F.3d 351 (5th Cir. 2020) ..................................................................................................... 15
Dugger v. Stephen F. Austin State Univ.,
232 F. Supp. 3d 938 (E.D. Tex. 2017) ........................................................................................ 5
E.E.O.C. v. Boh Bros. Const. Co.,
731 F.3d 444 (5th Cir. 2013) ..................................................................................................... 14
Eberhart v. United States,
546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam .............................................. 12
El Paso Mental Health & Mental Retardation Ctr. v. Crissman,
241 S.W.3d 578 (Tex. App.—El Paso 2007, no pet.) ................................................................. 7
Ethicon, Inc. v. U.S. Surgical Corp.,
135 F.3d 1456 (Fed. Cir. 1998) ................................................................................................. 16
Eyob v. Mitsubishi Caterpillar Forklift Am., Inc.,
745 F. App'x 209 (5th Cir. 2018) .............................................................................................. 14
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Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278 (5th Cir. 1993) ..................................................................................... 3, 14, 15, 16
Fort Bend Cnty., Tex. v. Davis,
204 L. Ed. 2d 116, 139 S. Ct. 1843 (2019) ............................................................................... 12
Gillum v. City of Kerrville,
3 F.3d 117 (5th Cir. 1993) ........................................................................................................... 6
Hall v. Cont'l Airlines, Inc.,
252 F. App'x 650 (5th Cir. 2007) .............................................................................................. 11
Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss.,
143 F.3d 1006 (5th Cir. 1998) ..................................................................................................... 3
In re Katrina Canal Breaches Litigation,
495 F.3d 191 (5th Cir. 2007) ....................................................................................................... 3
Jones v. Alcoa, Inc.,
339 F.3d 359 (5th Cir. 2003) ..................................................................................................... 13
Jones v. Performance Serv. Integrity,
492 F. Supp. 2d 590 (N.D. Tex. 2007) ........................................................................................ 6
King v. Tex. A&M Eng'g Extension Serv.,
No. 4:21-CV-1005, 2022 WL 2328853 (E.D. Tex. June 28, 2022) ............................................ 5
King-White v. Humble Indep. Sch. Dist.,
803 F.3d 754 (5th Cir. 2015) ..................................................................................................... 13
Larson v. Correct Craft, Inc.,
569 F.3d 1319 (Fed. Cir. 2009) ................................................................................................... 9
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383 (5th Cir. 2010) ....................................................................................................... 4
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .................................................................................................................... 9
Menchaca v. Chrysler Credit Corp.,
613 F.2d 507 (5th Cir. 1980) ....................................................................................................... 3
Nowak v. Ironworkers Loc. 6 Pension Fund,
81 F.3d 1182 (2d Cir. 1996) ........................................................................................................ 3
Pendleton v. Prairie View A & M Univ.,
121 F. Supp. 3d 758 (S.D. Tex. 2015) ........................................................................................ 5
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Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 104 S. Ct. 900 (1984) ............................................................................................. 4
Ramming v. United States,
281 F.3d 158 (5th Cir. 2001) ....................................................................................................... 3
Sewall v. Walters,
21 F.3d 411 (Fed. Cir. 1994) ..................................................................................................... 16
Shipula v. Texas Dep't of Fam. Protective Servs.,
No. CIV.A. H-10-3688, 2011 WL 1882521 (S.D. Tex. May 17, 2011) ..................................... 6
Specialty Retailers, Inc. v. DeMoranville,
933 S.W.2d 490 (Tex. 1996) ..................................................................................................... 11
State v. Shumake,
199 S.W.3d 279 (Tex. 2006) ....................................................................................................... 6
Sullivan v. Leor Energy, LLC,
600 F.3d 542 (5th Cir. 2010) ....................................................................................................... 4
Taylor v. Books A Million,
296 F.3d 376 (5th Cir. 2002) ..................................................................................................... 12
Tegic Commc'ns Corp. v. Bd. of Regents of Univ. of Tex. Sys.,
458 F.3d 1335 (Fed. Cir. 2006) ................................................................................................... 8
Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ....................................................................................................... 5
Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ....................................................................................................... 9
United States v. Tex. Tech Univ.,
171 F.3d 279 (5th Cir. 1999) ....................................................................................................... 4
Univ. of Tex. MD Anderson Cancer Ctr. v. Contreras,
576 S.W.3d 439 (Tex. App.—Houston [1st Dist.] 2019, no pet.)............................................... 7
Univ. of Utah v. Max-Planck-Gesellschaft Zur Forderung Der Wissenschaften E.V.,
734 F.3d 1315 (Fed. Cir. 2013) ................................................................................................... 8
Walker v. Beaumont Indep. Sch. Dist.,
938 F.3d 724 (5th Cir. 2019) ....................................................................................................... 4
Wallace v. Tex. Tech Univ.,
80 F.3d 1042 (5th Cir. 1996) ....................................................................................................... 4
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Warnock v. Pecos Cnty., Tex.,
88 F.3d 341 (5th Cir. 1996) ......................................................................................................... 3
Warth v. Seldin,
422 U.S. 490 (1975) .................................................................................................................... 9
Xechem Int'l, Inc. v. Univ. of Tex. M.D. Anderson Cancer Ctr.,
No. CIV.A. H-02-1013, 2003 WL 24232747 (S.D. Tex. Mar. 19, 2003) ................................... 8
Statutes
28 U.S.C. § 2201 ............................................................................................................................. 1
35 U.S.C. § 256 ...................................................................................................................... passim
42 U.S.C. § 2000(e)(1) .................................................................................................................. 11
42 U.S.C. § 2000e-5(b), (e)(1) ...................................................................................................... 11
42 U.S.C. § 2000e-5(c) ................................................................................................................. 11
Tex. Civ. Prac. & Rem. Code § 101.057(2) .................................................................................... 6
Tex. Civ. Prac. & Rem. Code § 101.021(1)(A) .............................................................................. 6
Tex. Labor Code § 21.002 .............................................................................................................. 5
Tex. Labor Code § 21.202(a) ........................................................................................................ 11
U.S. Const. amend. XI .................................................................................................................... 4
U.S. Const. art. III ........................................................................................................................... 9
Rules
FED. R. EVID. 201 ............................................................................................................................ 4
FED. R. EVID. 201(b)(2) ............................................................................................................ 2, 10
FED. R. CIV. P. Rule 12(b)(1) ................................................................................................. passim
FED. R. CIV. P. Rule 12(b)(6) ................................................................................................. i, 3, 10
Other Authorities
U.S. Patent No. 11,169,064 (“064”) ..................................................................................... 7, 8, 17

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INTRODUCTION
Plaintiff’s Complaint arises out of Plaintiff’s student and employment relationships with
TTU, and involves TTU professors, Drs. Prien and Penrose. Plaintiff worked as a graduate
assistant of Drs. Prien and Penrose until graduating with her Ph.D. in 2017. Once she graduated
with her Ph.D., Plaintiff no longer had either a student or an employment relationship with TTU.
Plaintiff’s only subsequent involvement with TTU was a short, unpaid volunteer position with the
TTU Accelerator Hub, which ended in June 2022.
Nearly six years after she left the employment of TTU, Plaintiff filed this lawsuit alleging
discrimination on the basis of sex, retaliation, and a host of intentional tort and other claims under
federal and state law. Specifically, Plaintiff’s “everything but the kitchen sink” complaint alleges
causes of action under Title VII for sexual harassment, hostile work environment, and retaliation;
Title IX of the Education Amendments of 1972 for sexual harassment; sexual harassment and
retaliation under Chapter 21 of the Texas Labor Code; correction of inventorship under 35 U.S.C.
§ 256; declaratory judgment of patent invalidity under 28 U.S.C. § 2201; tortious interference with
contractual relations; trade secret misappropriation; breach of contract; intentional infliction of
emotional distress; unjust enrichment; breach of fiduciary duty; fraudulent concealment; negligent
supervision and retention; and defamation per se.
As discussed in detail below, Plaintiff’s claims against TTU should be dismissed in their
entirety because: (1) many of Plaintiff’s claims against TTU are jurisdictionally barred by
sovereign immunity; (2) Plaintiff lacks standing for numerous claims; (3) Plaintiff’s
discrimination and retaliation claims are barred by failure to exhaust administrative requirements;
and (4) Plaintiff has failed to allege sufficient facts showing a prima facie claim for many of her
causes of action.

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BACKGROUND
Plaintiff alleges she was a student of Drs. Prien and Penrose at TTU from 2009 until
graduating with her Ph.D. in 2017. See Dkt. 1 ¶¶ 32, 33, 65. Plaintiff alleges that she worked as a
graduate assistant for Dr. Prien while at TTU. Id. ¶¶ 7, 34. Plaintiff also alleges that she participated
in an Accelerator Hub mentorship program at TTU during May and June of 2022. Id. ¶¶ 108, 110,
111. 1 Plaintiff does not allege that she had an employment relationship with TTU during her brief
time as a mentor with the Accelerator Hub program, nor does she allege that she received any type
of compensation or benefits as part of that program.
As a graduate assistant at TTU, Plaintiff conducted research. Id. ¶¶ 3, 7. Plaintiff alleges
that she did not receive credit for her contributions to technological innovations, patents, and
academic research. Id. ¶ 7. Plaintiff claims she was an inventor of patents for which TTU did not
list her as an inventor, id. ¶¶ 102, 103, 114, 115, 162, and she is requesting this Court to correct
inventorship and/or declare the patent invalid.
Plaintiff’s last date of employment with TTU was in 2017 when she graduated with her
Ph.D. Id. ¶¶ 65-66. Since that time, Plaintiff worked at Ovation Fertility and then with her own
two companies, Embryotics and EmGenisys. Id. ¶¶ 70, 72-84. Plaintiff did not file her EEOC
Charge, which was cross-filed with the TWC, until November 11, 2022, well beyond both the
300- and the 180-day limitation periods required by law for EEOC and TWC claims. Id., Ex. A.
The EEOC issued a Right to Sue letter on December 22, 2022. Id., Ex. B.

1

Defendants request the Court to take judicial notice of the TTU Innovation Hub at Research Park
website page showing that mentors are experienced in their trade and offer their experience as
“mentors”
to
the
TTU
Innovation
Hub:
depts.ttu.edu/research/researchpark/meet/iTTUmentors.php. See Fed. R. Evid. 201(b)(2) (permitting the Court to take judicial
notice of “a fact that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned”).
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STANDARD OF REVIEW
A. Rule 12(b)(1)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case is properly dismissed
when the court “lacks the statutory or constitutional power to adjudicate the case.” Home Builders
Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak
v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “The burden of proof
for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). “Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.” Id. (citing Menchaca v. Chrysler Credit Corp., 613
F.2d 507, 511 (5th Cir. 1980)). Claims barred by sovereign immunity are properly dismissed under
Federal Rule of Civil Procedure 12(b)(1). Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir.
1996).
B. Rule 12(b)(6)
“To survive a Rule 12(b)(6) motion, the plaintiff must plead ‘enough facts to state a claim
to relief that is plausible on its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations, quotations, and brackets omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Katrina Canal, 495 F.3d at 205
(quoting Twombly, 550 U.S. at 555). The Court is not required to conjure up unpled allegations in
order to save a complaint, and “conclusory allegations or legal conclusions masquerading as
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factual conclusions will not suffice . . ..” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278,
284 (5th Cir. 1993).
When reviewing a motion to dismiss for failure to state a claim, “[t]he court’s review is
limited to the complaint, any documents attached to the complaint, and any documents attached to
the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also Sullivan v.
Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010). The Court may also consider facts subject
to judicial notice under Federal Rule of Evidence 201. Walker v. Beaumont Indep. Sch. Dist., 938
F.3d 724, 735 (5th Cir. 2019).
ARGUMENT
I.

MOST OF PLAINTIFF’S CLAIMS AGAINST TTU ARE JURISDICTIONALLY
BARRED BY SOVEREIGN IMMUNITY.
The Eleventh Amendment protects States from citizen suits brought in federal court

without the State’s consent. See U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“[A]n unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another state.”) (internal quotation
marks omitted). Such protection extends to state agencies and applies regardless of the type of
relief sought. Pennhurst State School & Hosp., 465 U.S. at 100.
As a state university and an arm of the State of Texas, TTU is entitled to the State’s
sovereign immunity. See Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996)
(“Texas Tech, as a state institution, clearly enjoys Eleventh Amendment immunity.”); see also
United States v. Tex. Tech Univ., 171 F.3d 279, 289 n.14 (5th Cir. 1999) (“The Eleventh
Amendment cloaks Texas Tech University and Texas Tech University Health Sciences Center
with sovereign immunity as state institutions.”). To overcome TTU’s sovereign immunity,

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Plaintiff must show that “the state has waived sovereign immunity or Congress has expressly
abrogated it” for each of her causes of action. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir.
2019). Plaintiff cannot make such a showing for most of her claims.
A. Sovereign immunity bars Plaintiff’s claims under Chapter 21 of the Texas Labor
Code (Counts 5 and 7).
Plaintiff asserts claims against TTU for discrimination and retaliation (Counts 5 and 7) in
violation of Tex. Labor Code § 21.002, et seq. See Dkt. 1 ¶¶ 147-59. It is well-established that
sovereign immunity bars suits against state universities (like TTU) in federal court under Chapter
21 of the Texas Labor Code (“Chapter 21”). King v. Tex. A&M Eng’g Extension Serv., No. 4:21CV-1005, 2022 WL 2328853, at *5 (E.D. Tex. June 28, 2022); see also Pendleton v. Prairie View
A & M Univ., 121 F. Supp. 3d 758, 762 (S.D. Tex. 2015). Chapter 21 does not expressly waive
sovereign immunity in federal court. Pendleton, 121 F. Supp. 3d at 762–63 (“Texas also has not
consented to suit in federal court on claims under the Texas Labor Code.”); Dugger v. Stephen F.
Austin State Univ., 232 F. Supp. 3d 938, 953–54 (E.D. Tex. 2017) (“The State of Texas has not
provided a clear and unambiguous waiver of its immunity from suit in a federal court with regard
to retaliation claims under . . . the Texas Labor Code, nor has Congress abrogated the State’s right
under the Eleventh Amendment not to be so sued.”). Further, Plaintiff cannot point to any other
Texas statute that waives the State’s sovereign immunity against Chapter 21 claims in federal
court. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (“It is up to the
Legislature to institute such a waiver, and to date it has not seen fit to do so.”). Because TTU is
immune from suit and liability on Plaintiff’s Chapter 21 claims, this Court lacks jurisdiction over
these claims and must dismiss them under Rule 12(b)(1).

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B. Sovereign immunity bars Plaintiff’s state law negligence and intentional tort claims
(Counts 13, 16-18, 20).
Plaintiff brings a variety of negligence and intentional tort claims against TTU:
(1) intentional infliction of emotional distress (“IIED”) (Count 13); (2) breach of fiduciary duty
(Count 16); (3) fraudulent concealment (Count 17); (4) negligent supervision and retention (Count
18); and (5) defamation per se (Count 20). Dkt. 1 ¶¶ 180-86, 195-212, 219-224. Each of these
claims are barred by sovereign immunity and should be dismissed.
The Texas Legislature has waived sovereign immunity for certain limited types of tort
claims against state entities in the Texas Tort Claims Act (“the TTCA”). See State v. Shumake,
199 S.W.3d 279, 283 (Tex. 2006). The TTCA waives sovereign immunity only where the alleged
personal injury either “arises from the operation or use of a motor-driven vehicle or motor-driven
equipment,” Tex. Civ. Prac. & Rem. Code § 101.021(1)(A), or is “caused by a condition or use of
tangible personal or real property,” id. § 101.021(2). See City of Hempstead v. Kmiec, 902 S.W.2d
118, 122 (Tex. App.—Houston [1st Dist.] 1995). Neither of those waivers applies to Plaintiff’s
various negligence and intentional tort claims, as Plaintiff’s allegations do not involve the use of
motor-driven equipment or a condition or use of property.
Regarding Plaintiff’s intentional tort claims, the TTCA expressly provides that it does not
apply to claims “arising out of assault, battery, false imprisonment, or any other intentional tort.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2). Thus, Plaintiff’s intentional tort claims (Counts
13, 16, 17, and 20) are specifically recognized by the Legislature as being categorically barred by
sovereign immunity. Indeed, courts have consistently recognized that sovereign immunity bars the
types of intentional torts Plaintiff has pleaded here. See, e.g., Gillum v. City of Kerrville, 3 F.3d
117, 122–23 (5th Cir. 1993) (holding that sovereign immunity is not waived when the claim arises
out of an intentional tort, such as defamation or IIED); Shipula v. Tex. Dep't of Fam. Protective

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Servs., No. CIV.A. H-10-3688, 2011 WL 1882521, at *12 (S.D. Tex. May 17, 2011) (holding the
TTCA does not waive sovereign immunity for intentional torts such as fraud, breach of fiduciary
duty, IIED, and conspiracy); Jones v. Performance Serv. Integrity, 492 F. Supp. 2d 590, 598 (N.D.
Tex. 2007) (noting that defamation and IIED are “both intentional torts for which sovereign
immunity is not waived.”).
Regarding Plaintiff’s negligence claim (Count 18), besides the plain language of the TTCA
itself, courts have generally held that the TTCA does not waive sovereign immunity for negligent
supervision. See, e.g., Univ. of Tex. MD Anderson Cancer Ctr. v. Contreras, 576 S.W.3d 439, 444
(Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding that sovereign immunity barred “a claim
for negligent supervision of a governmental employee or agent”); El Paso Mental Health & Mental
Retardation Ctr. v. Crissman, 241 S.W.3d 578, 582 (Tex. App.—El Paso 2007, no pet.)
(“Allegations of negligent supervision do not satisfy the limited waiver of immunity contained
within the Tort Claims Act.”); City of Waco v. Williams, 209 S.W.3d 216, 232 (Tex. App.—Waco
2006, pet. denied) (“The [TTCA] does not waive sovereign immunity for negligent supervision
and training.”).
Because the TTCA does not waive sovereign immunity for any of the negligence or
intentional tort claims pleaded by Plaintiff, Plaintiff cannot carry her burden to show a legislative
waiver of sovereign immunity for those claims. Accordingly, the Court should dismiss these claims
(Counts 13, 16-18, 20) against TTU for lack of subject matter jurisdiction.
C. Sovereign immunity bars Plaintiff’s claims related to patent inventorship against
TTU (Counts 8-9).
Pursuant to 35 U.S.C. § 256, Plaintiff requests the Court to determine the correct
inventorship of U.S. Patent No. 11,169,064 (“064”) and to allegedly correct the patent either by
adding Plaintiff as a joint inventor, or alternatively, by rendering the patent invalid as failing to

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name the proper inventors. See Dkt. 1 ¶¶ 160-66. Specifically, Plaintiff claims that she made
independent conceptual contributions to the inventions claimed in the ’064 patent; and that through
omission, inadvertence, or error, Plaintiff is not listed on the ’064 patent as an inventor. Id. ¶¶ 16162. Plaintiff’s patent claims are barred by sovereign immunity.
Sovereign immunity protects a state university from lawsuits by private individuals seeking
to correct inventorship under 35 U.S.C. § 256. Xechem Int’l, Inc. v. Univ. of Tex. M.D. Anderson
Cancer Ctr., 382 F.3d 1324 (Fed. Cir. 2004). In Xechem, a private party filed suit against a state
university in federal court to change the inventorship of university-owned patents that resulted
from a joint research project. Because the university did not consent to the suit, the district court
found that sovereign immunity barred the plaintiff’s claims for determination and correction of
inventorship pursuant to 35 U.S.C. § 256, and the Federal Circuit affirmed. Xechem Int’l, Inc. v.
Univ. of Tex. M.D. Anderson Cancer Ctr., No. CIV.A. H-02-1013, 2003 WL 24232747, at *9 (S.D.
Tex. Mar. 19, 2003), aff’d sub nom. Xechem Int’l, Inc. v. Univ. of Tex. M.D. Anderson Cancer
Ctr., 382 F.3d 1324 (Fed. Cir. 2004).
The same rule applies here. Just as in Xechem, Plaintiff here is a private party suing a state
university and requesting the Court to correct the inventorship of a patent owned by the university.
Moreover, Plaintiff’s alternative requested relief that seeks a declaration of patent invalidity is
likewise based on Section 256 of the Patent Act. But TTU has not consented to suit for such claims,
and Plaintiff cannot identify any statute waiving or abrogating TTU’s sovereign immunity against
such claims. City of Austin, 943 F.3d at 997; see also Tegic Commc’ns Corp. v. Bd. of Regents of
Univ. of Tex. Sys., 458 F.3d 1335, 1340 (Fed. Cir. 2006) (finding that Eleventh Amendment
immunity applies to suits pertaining to violations of federal patent laws in suit brought by private
party against State university system for a declaratory judgment of patent invalidity and

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unenforceability); Univ. of Utah v. Max-Planck-Gesellschaft Zur Forderung Der Wissenschaften
E.V., 734 F.3d 1315, 1319 (Fed. Cir. 2013) (“[A] state university generally may not be sued for
infringement, nor may it be forced to defend against an action for declaratory judgment of
invalidity or non-infringement.”). Thus, sovereign immunity bars Plaintiff’s patent inventorship
and invalidity claims (Counts 8-9), and this Court should dismiss them for lack of jurisdiction.
II.

PLAINTIFF LACKS STANDING FOR HER CLAIM FOR CORRECTION OF
INVENTORSHIP, OR IN THE ALTERNATIVE, A DECLARATION OF
INVALIDITY (COUNTS 8-9).
Plaintiff further lacks standing to assert the correction of inventorship and patent invalidity

claims (Counts 8-9). Whether a plaintiff has Article III standing “is the threshold question in every
federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S.
490, 498 (1975). To establish standing, a plaintiff must “show that she has suffered an injury-infact, that the injury is traceable to the conduct complained of, and that the injury is redressable by
a favorable decision.” Chou v. Univ. of Chicago, 254 F.3d 1347, 1357 (Fed. Cir. 2001) (citing U.S.
Const. art. III and Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “Under federal law, a
lack of standing deprives a court of subject matter jurisdiction because standing is an element of
such jurisdiction.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993).
In Chou, the plaintiff sought correction of inventorship under § 256, citing the fact that she,
if identified as an inventor, would be entitled to university royalties, licensing revenue, and equity
in start-up companies. 254 F.3d at 1354–55. Although the Chou court found that a plaintiff need
not have an ownership interest at stake in the suit to have standing, it nevertheless demanded that
a plaintiff have a “concrete financial interest” in the patents. Id. at 1359; see also Larson v. Correct
Craft, Inc., 569 F.3d 1319, 1321 (Fed. Cir. 2009) (holding that because the plaintiff had no concrete
financial interest in the correction of inventorship, as he had assigned away all of his patent rights,
there was no standing under § 256).
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Here, Plaintiff fails to allege that she has any ownership or financial interest in the patent.
Indeed, she has none—under TTU’s policy, Plaintiff is required to assign her rights in any
intellectual property to TTU. The TTU policy expressly states as follows:
Except as specifically provided in research agreements sponsored by third parties,
and as provided in Section 10.03.3, intellectual property created by covered persons
with the use of TTUS (Texas Tech University System) resources or during the
course of covered persons’ TTUS responsibilities is automatically owned by TTUS.
All covered persons must, and do hereby, assign their rights in such intellectual
property to TTUS . . .. 2
Because Plaintiff does not own or have a financial interest in the patent, she lacks standing
to bring a claim under 35 U.S.C. § 256 to correct the patent or to declare it invalid. Because Plaintiff
lacks standing, the Court should dismiss her claims (Counts 8 and 9) for lack of jurisdiction.
III. PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER FED. R. CIV. P. 12(B)(6).
Plaintiff’s claims should be dismissed as being time-barred for failure to exhaust
administrative remedies, failure to file within the required statute of limitations, and for failure to
state a claim. Accordingly, Plaintiff’s Title VII (Counts 1-3), Title IX (Count 4), Chapter 21
(Counts 5 and 7), correction of inventorship (Count 8), and patent invalidity (Count 9) claims
should be dismissed.
A. Plaintiff’s Title VII and Chapter 21 claims (Counts 1-3, 5, 7) are time-barred because
Plaintiff failed to exhaust her administrative remedies.
Plaintiff alleges sexual harassment, hostile work environment, and retaliation under Title
VII (Counts 1-3) against TTU. She also alleges retaliation and unlawful employment practice
Defendants request the Court to take judicial notice of Texas Tech University System, Rules and
Regulations of the Board of Regents, Chapter 10 – Intellectual Property Rights at 10.03.1, publicly
available at https://www.texastech.edu/board-of-regents/regents-rules/chapter-10-intellectualproperty-rights.pdf (last revised October 9, 2015). See Fed. R. Evid. 201(b)(2) (permitting the
Court to take judicial notice of “a fact that is not subject to reasonable dispute because it . . . can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned”).
2

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(Counts 5 and 7) in violation of Chapter 21 of the Texas Labor Code. 3 All of these Title VII and
Chapter 21 claims should be dismissed as time-barred because Plaintiff did not file her EEOC
charge within either the 180- or 300-day limitations period.
Both Chapter 21 and Title VII direct that a “charge . . . shall be filed” no later than the
180th (or, in the case of Title VII, the 300th) day “after the alleged unlawful employment practice
occur[s].” Tex. Labor Code § 21.202(a); 42 U.S.C. § 2000e-5(b), (e)(1). For complaints
concerning a practice occurring in a State or political subdivision that has a fair employment
agency of its own empowered “to grant or seek relief,” such as the Texas Workforce Commission,
Title VII instructs the complainant to file his charge first with the state or local agency. 42 U.S.C.
§ 2000e-5(c). The complainant then has 300 days following the challenged practice, or 30 days
after receiving notice that state or local proceedings have ended, “whichever is earlier,” to file a
charge with the EEOC. 42 U.S.C. § 2000(e)(1).
Federal law is clear. Before a plaintiff may pursue a cause of action under Title VII, she
must exhaust her administrative remedies. Hall v. Cont’l Airlines, Inc., 252 F. App’x 650, 653 (5th
Cir. 2007); see also Taylor v. Books A Million, 296 F.3d 376, 378-79 (5th Cir. 2002), cert. denied
(2003). A court may entertain a Title VII lawsuit only if the aggrieved party has (1) exhausted his
or her administrative remedies and (2) has filed suit within the time permitted after receiving a
notice of a right to sue. Id. Filing an EEOC charge is a mandatory “claim-processing rul[e] that
must be timely raised to come into play.” Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843, 1846
(2019). “A claim-processing rule may be ‘mandatory’ in the sense that a court must enforce the
3

Even if Plaintiff’s Chapter 21 claims were not barred by sovereign immunity (which they are),
they are time-barred for similar reasons. Texas law requires Chapter 21 complaints to be filed in
an even shorter time frame (180 instead of 300 days) and enforces that time requirement similarly.
See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) (finding that the
time limit for filing a complaint under TCHRA with the TWC is mandatory, and “the commission
shall dismiss an untimely complaint.”).
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rule if a party ‘properly raise[s]’ it. Id. (quoting Eberhart v. U.S., 546 U.S. 12, 19 (2005) (per
curiam)).
Plaintiff graduated from TTU in 2017 with a Ph.D. See Dkt. 1 ¶ 65. After graduation in
2017, Dr. Prien offered Plaintiff an unpaid position in his lab, but she declined the offer. Id. ¶ 66.
Plaintiff never alleges that she was a paid employee of TTU after graduation. Id. ¶¶ 66-116. Since
her last date of employment at TTU, Plaintiff worked at Ovation Fertility, Embryotics, and then at
EmGenisys. Id. ¶¶ 70, 72-87.
Accordingly, Plaintiff’s last date of employment with TTU was in 2017, and the limitations
period began to run on any Title VII or Chapter 21 claims in 2017. However, Plaintiff’s EEOC
Charge was not filed until November 11, 2022, well beyond the 300-day limitations period for a
Title VII charge. For charges brought under Title VII, the deadline for filing was no later than
October 27, 2018. For claims under Chapter 21, the deadline was even earlier.
Plaintiff did not file her Charge alleging discrimination on the basis of sex and retaliation
with the EEOC until November 11, 2022, which is 1,776 days (almost five years) after December
31, 2017. Therefore, Plaintiff’s Chapter 21 complaint and her EEOC Charge were not timely filed
under either state or federal law, and Plaintiff’s Chapter 21 claims for unlawful employment
practice (Count 5) and retaliation (Count 7), as well as her Title VII claims for sexual harassment
(Count 1), hostile work environment (Count 2), and retaliation (Count 3), should be dismissed.
B. Plaintiff’s Title IX claim is barred by the statute of limitations (Count 4).
Plaintiff alleges sexual harassment under Title IX (Count 4) against TTU. However, the
statute of limitations bars her claim because she filed over three years too late.
The Fifth Circuit has held that the two-year statute of limitations applied to § 1983 claims
is applied “with equal force to Title IX claims.” King-White v. Humble Indep. Sch. Dist., 803 F.3d
754, 759 (5th Cir. 2015). A Title IX claim begins to accrue when plaintiff is aware of the existence
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of circumstances that would lead a reasonable person to investigate further. Id. at 762. A “‘plaintiff
need not know that she has a legal cause of action’ for her claim to accrue; ‘she need know only
the facts that would ultimately support a claim.’” Id. “[A]wareness for accrual purposes does not
mean actual knowledge; rather, all that must be shown is the existence of circumstances [that]
would lead a reasonable person to investigate further.” Id. (citation and internal quotation marks
omitted). The statute of limitations requires dismissal where it is evident “from the plaintiff’s
pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.”
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
Plaintiff alleges that she graduated from TTU with her Ph.D. in 2017. See Dkt. 1 ¶ 65.
Accordingly, the statute of limitations for Plaintiff’s alleged Title IX claim began to run on the last
possible day she was a student at TTU, which (at the latest) could have been December 31, 2017.
Under the applicable two-year statute of limitations, Plaintiff had until December 31, 2019, to file
her claim. However, Plaintiff did not file a Title IX claim until she filed her Complaint on March
22, 2023, over three years too late. Because the statute of limitations bars her Title IX claim (Count
4), the Court should dismiss it.
C. Plaintiff fails to state a claim for sexual harassment, hostile work environment, and
retaliation under Title VII (Counts 1-3).
Plaintiff’s Title VII claims are bare bones, conclusory, and fail to state a claim for sexual
harassment, hostile work environment, and retaliation.
1. Sexual Harassment and Hostile Work Environment Under Title VII
To state a claim for sexual harassment under Title VII, a plaintiff must allege: “(1) that the
employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual
harassment; (3) that the harassment was based on [sex]; and (4) that the harassment affected a
‘term, condition, or privilege’ of employment.” See E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d

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444, 453 (5th Cir. 2013). Similarly, to state a claim for hostile work environment under Title VII,
“the plaintiff must show that: (1) the victim belongs to a protected group; (2) the victim was
subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic;
(4) the harassment affected a term, condition, or privilege of employment; and (5) the victim’s
employer knew or should have known of the harassment and failed to take prompt remedial
action.”). Eyob v. Mitsubishi Caterpillar Forklift Am., Inc., 745 F. App’x 209, 215 n.2 (5th Cir.
2018), as revised (Aug. 10, 2018).
Here, Plaintiff generically alleges that “Defendant subjected Plaintiff to adverse employment
actions” without actually identifying any specific adverse employment action or stating how any
term, condition, or privilege of her employment with TTU was allegedly affected while she was
an employee of TTU prior to her graduation in 2017. See Dkt. 1 ¶¶ 65, 124. Similarly, Plaintiff
fails to describe how any alleged harassment supposedly affected a term, condition, or privilege of
her employment with TTU in 2017 or earlier. Plaintiff’s “formulaic recitation of the elements of a
cause of action” is legally insufficient to state a claim for sexual harassment or hostile work
environment under Title VII. See Twombly, 550 U.S. at 555; see also Fernandez-Montes, 987 F.2d
at 284 (noting that “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice”). Thus, the Court should dismiss those claims (Counts 1 and 2).
2. Retaliation Under Title VII
To state a claim for retaliation under Title VII, Plaintiff must allege that “(1) the employee
engaged in [an] activity protected by Title VII; (2) the employer took [an] adverse employment
action against the employee; and (3) a causal connection exists between that protected activity and
the adverse employment action.” Cooper v. Dallas Police Ass’n, 278 F. App’x 318, 320 (5th Cir.

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2008) (quoting Brazoria Cnty., Tex. v. E.E.O.C., 391 F.3d 685, 692 (5th Cir. 2004) (emphasis
omitted) (internal quotation marks omitted).
In this case, Plaintiff makes bare bone, conclusory allegations that Plaintiff “engaged in
opposition activity” and that “Defendant took adverse action against Plaintiff that a reasonable
employee would consider adverse.” See Dkt. 1 ¶¶ 137-38. Again, such a “formulaic recitation of
the elements of a cause of action” is legally insufficient to state a claim. See Twombly, 550 U.S. at
555; Fernandez-Montes, 987 F.2d at 284. Plaintiff has not identified any particular activity that
she believes is protected under Title VII, nor when and how she engaged in that activity, nor any
alleged retaliatory actions that she believes she experienced while employed at TTU in 2017 and
before. Accordingly, Plaintiff fails to state a claim for retaliation under Title VII, and the Court
should dismiss that claim (Count 3).
D. Plaintiff fails to state a claim for sexual harassment under Title IX (Count 4).
To state a claim for sexual harassment under Title IX, Plaintiff must allege that the school
had “actual knowledge” of sexual harassment and that the school failed to adequately respond.
Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 358, 359 (5th Cir. 2020). For a school to “have
knowledge, it is not enough that any employee knew of the harassment; it must be someone
authorized to rectify it.” Id. at 359.
Plaintiff fails to allege any facts describing who she believes sexually harassed her, when
and what that alleged harassment was, or who at TTU had actual knowledge of any alleged sexual
harassment (and what authority that individual may have had to address it). See Dkt. 1 ¶¶ 140-46.
As with her Title VII claims, Plaintiff’s conclusory and “formulaic recitation of the elements of a
cause of action” is legally insufficient to state a claim. See Twombly, 550 U.S. at 555; Fernandez-

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Montes, 987 F.2d at 284. Accordingly, this Court should dismiss Plaintiff’s Title IX claim (Count
4).
E. Plaintiff fails to state a claim for correction of inventorship and patent invalidity
against TTU (Counts 8-9).
Even if Plaintiff’s correction of inventorship or declaration of invalidity under § 256 were
not barred by Eleventh Amendment immunity (they are), Plaintiff fails to plead facts to state a
claim for relief.
To state a § 256 claim, Plaintiff must plead facts supporting her conception (or coconception) of the particular inventions claimed in the patent. To be an inventor, a person must
have contributed to the original conception of the specific idea later claimed in the patent.
Burroughs Wellcome Co. v. Barr Lab'ys, Inc., 40 F.3d 1223, 1227–28 (Fed. Cir. 1994). Conception
exists only when “a definite and permanent idea of an operative invention, including every feature
of the subject matter sought to be patented, is known.” Sewall v. Walters, 21 F.3d 411, 415 (Fed.
Cir. 1994). To show co-conception, “the qualitative contribution of each collaborator is the key—
each inventor must contribute to the joint arrival at a definite and permanent idea of the invention
as it will be used in practice.” Burroughs Wellcome Co., 40 F.3d at 1229. Merely talking to
inventors about the technology relating to the inventors’ patent does not necessarily make one an
inventor. As the Federal Circuit has explained in Ethicon, Inc. v. U.S. Surgical Corp., “[o]ne who
simply provides the inventor with well-known principles or explains the state of the art without
ever having ‘a firm and definite idea’ of the claimed combination as a whole does not qualify as a
joint inventor.” 135 F.3d 1456, 1460 (Fed. Cir. 1998) (citations omitted).
Plaintiff’s threadbare § 256 claims do not identify Plaintiff’s alleged conception or coconception of the particular subject matter claimed in TTU’s patent, nor do they properly allege
collaboration. Plaintiff vaguely alleges that she “made independent conceptual contributions to the

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inventions claimed in US Patent No. 11,169,064 (“the ’064 Patent”). Dkt. 1 ¶ 161. And in the
background section, she states that the “concept behind the patent application was Dr. Prien’s but
Dr. Wells did the hands-on work” and that Plaintiff’s contributions were “innovative.” Id. at ¶ 49.
She further states that they “often discussed ideas that either of them might consider patentable”
and that Dr. Wells brought up the “original concept for using embryo buoyancy to determine
embryo sex based on the fact that X chromosomes weight more than Y chromosomes.” Id. at ¶ 51.
Plaintiff’s vague allegations do not provide any basis for distinguishing between the
allegedly disclosed subject matter and what is claimed in the ’064 Patent. Similarly, Plaintiff does
not allege any facts showing that her alleged disclosure was a “clearly defined” disclosure of the
’064 Patent claims. See Burroughs Wellcome Co., 40 F.3d at 1228. Plaintiff’s description of the
allegedly disclosed subject matter is insufficient to show how it somehow corresponds to the
claimed elements of the ’064 Patent. Thus, the Court should dismiss Counts 8 and 9 for this
additional reason.
CONCLUSION
For the foregoing reasons, Defendant TTU respectfully requests that this Court dismiss all
of Plaintiff’s claims against TTU in their entirety.
Dated: May 18, 2023

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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
CHRISTOPHER D. HILTON
Chief, General Litigation Division
/s/ Kirstin M. Erickson
KIRSTIN ERICKSON
Attorney in charge
Texas Bar No. 24134194
ALYSSA BIXBY-LAWSON
Texas Bar No. 24122680
Assistant Attorneys General
General Litigation Division
Kirstin.Erickson@oag.texas.gov
Alyssa.Bixby-Lawson@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 May 18, 2023, the foregoing Defendant TTU’s Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) 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:
Ramon Hernandez
rxh@brewerattorneys.com
Counsel for Plaintiff

/s/ Kirstin M. Erickson
KIRSTIN ERICKSON
18