Motion to Dismiss for Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction () filed by Texas Tech University Health Sciences Center with Brief/Memorandum¶

Grodman v. Texas Tech University Health Sciences Center, No. 5:23-cv-00210 (N.D. Tex.) · Dkt. 22 · 2024-01-31 · PDF

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

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SCHYLER Z. GRODMAN, M.D.,
Plaintiff

§
§
§
v.
§
Civil Action No. 5:23-cv-00210-H
§
§
TEXAS TECH UNIVERSITY
§
HEALTH SCIENCES CENTER
§
Defendant
§
_____________________________________________________________________________
DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT
______________________________________________________________________________
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy Attorney General for Litigation
JAMES LLOYD
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division

JOSEPH D. KEENEY
Attorney-In-Charge
Texas Bar No. 24092616
Assistant Attorney General
Office of the Attorney General
General Litigation Division -019
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4090
Facsimile: (512) 320-0667
Joseph.Keeney@oag.texas.gov
ATTORNEYS FOR DEFENDANTS

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TABLE OF CONTENTS
Table of Contents ............................................................................................................................. i
Table of Authorities ........................................................................................................................ ii
I. Background ...................................................................................................................................1
II. Issues in Dispute and Standard of Review ..................................................................................2
III. Argument ....................................................................................................................................3
A. Plaintiff’s First Amended Complaint fails to state a due process claim ................................3
1. TTUHSC has sovereign immunity from claims brough under Section 1983 ....................3
2. Plaintiff’s Section 1983 claim fails to state a claim upon which relief can be granted ......3
i. Section 1983 does not permit claims against state institutions........................................4
ii. Plaintiff has not alleged a violation of his procedural due process rights ......................4
iii. Plaintiff has not alleged a violation of his substantive due process rights ...................8
B. Plaintiff’s First Amended Complaint fails to state a reasonable accommodation claim ......9
IV. Conclusion ...............................................................................................................................13
Certificate of Service ....................................................................................................................14

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TABLE OF AUTHORITIES

Cases

Pages

Affiliated Prof’l Home Health Care Agency v. Shalala,
164 F.3d 282 (5th Cir. 1999) ...................................................................................................... 3
Aguilar v. Tex. Dep’t of Criminal Justice,
160 F.3d 1052 (5th Cir. 1998) .................................................................................................... 3
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 2
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................... 2
Berry v. Texas Woman's Univ.,
528 F. Supp. 3d 579 (E.D. Tex. 2021) ........................................................................................ 4
Board of Curator of Univ. of Missouri v. Horowitz,
435 U.S. 78 (1978) ....................................................................................................................... 5
Brennan v. Stewart,
834 F.2d 1248 (5th Cr. 1988)...................................................................................................... 8
Connick v. Thompson,
563 U.S. 51 (2011) ...................................................................................................................... 4
Cozzo v. Tangipahoa Par. Council-President Gov’t,
279 F.3d 273 (5th Cir. 2002) ...................................................................................................... 4
Davis v. Mann,
882 F.2d 967 (5th Cir. 1989) ..................................................................................................... 6
DePree v. Saunders,
588 F.3d 282 (5th Cir. 2009) ...................................................................................................... 4
Dewitt v. Sw. Bell Tel. Co.,
845 F.3d 1299 (10th Cir. 2017) .................................................................................................. 9
Ekmark v. Matthews,
524 Fed. App’x 62 (5th Cir. 2013) ............................................................................................. 5
Flynn v. Distinctive Home Care, Inc.,
812 F.3d 422 (5th Cir. 2016) ...................................................................................................... 9
Green v. Medco Health Sols. of Texas, L.L.C.,
560 F. App'x 398 (5th Cir. 2014) .............................................................................................. 10
Green v. Medco Health Sols. of Texas, LLC,
947 F. Supp. 2d 712, 729 (N.D. Tex. 2013) .......................................................................... 9, 10
Hill v. Kan. City Area Transp. Auth.,
181 F.3d 891 (8th Cir. 1999) .................................................................................................... 10
Hooks v. Landmark Indus., Inc.,
797 F.3d 309 (5th Cir. 2015) ...................................................................................................... 2
Howery v. Allstate Ins. Co.,
243 F.3d 912 (5th Cir. 2001) ...................................................................................................... 2
James v. Tex. Collin Cnty.,
535 F.3d 365 (5th Cir. 2008) ...................................................................................................... 3
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Jones v. Nationwide Life Ins. Co.,
696 F.3d 78 (1st Cir. 2012) ...................................................................................................... 10
Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454 (1989) .................................................................................................................... 5
Levitt v. Univ. of Tex. at El Paso,
759 F.2d 1224 (5th Cir. 1985) .................................................................................................... 7
Lottinger v. Shell Oil Co.,
143 F.Supp.2d 743 (S.D. Tex. 2001) .......................................................................................... 9
Meza v. Livingston,
607 F.3d 392 (5th Cir. 2010) ...................................................................................................... 5
Miles-Hickman v. David Powers Homes, Inc.,
589 F. Supp. 2d 849 (S.D. Tex. 2008) ...................................................................................... 11
Monell v. Dept. of Soc. Serv. of City of NY,
436 U.S. 658 (1978) .................................................................................................................... 4
Moore v. Willis Indep. Sch. Dist.,
233 F.3d 871 (5th Cir. 2000) ...................................................................................................... 3
Paterson v. Weinberger,
644 F.2d 521 (5th Cir. 1981) ..................................................................................................... 2
Price v. Elder,
175 F. Supp. 3d 676 (N.D. Miss. 2016) ..................................................................................... 4
Price v. Shorty,
632 F. App’x 211 (5th Cir. 2016) (per curiam) ......................................................................... 4
Quern v. Jordan,
440 U.S. 332 (1979) ................................................................................................................... 4
Raj v. La. State Univ.,
714 F.3d 322 (5th Cir. 2013) ..................................................................................................... 4
Ramming v. United States,
281 F.3d 158 (5th Cir. 2001) ...................................................................................................... 2
Regents of Univ. of Mich. v. Ewing,
474 U.S. 214 (1985) .................................................................................................................... 8
Rosas v. Univ. of Tex. at San Antonio,
793 F. App’x 267 (5th Cir. 2019) ............................................................................................... 3
Rose v. Laskey,
110 Fed. Appx. 136 (1st Cir.2004) ........................................................................................... 10
Seaman v. CSPH, Inc.,
179 F.3d 297 (5th Cir. 1999) .................................................................................................... 11
Shaboon v. Duncan,
252 F.3d 722 (5th Cir. 2001) ....................................................................................................... 5
Simi Inv. Co., Inc. v. Harris Cnty. Tex.,
236 F.3d 240 (5th Cir. 2000) ...................................................................................................... 8
Stauffer v. Gearhart,
741 F.3d 574 (5th Cir. 2014) ...................................................................................................... 4
Stollings v. Texas Tech Univ.,
No. 5:20-CV-250-H, 2021 WL 3748964 (N.D. Tex. Aug. 25, 2021) ........................................ 4
Taylor v. Principal Fin. Grp., Inc.,
93 F.3d 155 (5th Cir. 1996) ..................................................................................................... 11
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Trahan v. Wayfair Maine, LLC,
957 F.3d 54 (1st Cir. 2020) ........................................................................................................ 9
United States v. Tex. Tech. Univ.,
171 F.3d 279 n.14 (5th Cir. 1999) ............................................................................................. 3
Welch v. Tex. Tech. Univ. Health Serv. Ctr.,
No. 2012 WL 5986424 (N.D. Tex. Nov. 7, 2012) ...................................................................... 4
Wheeler v. Miller,
168 F.3d 241 (5th Cir. 1999) ...................................................................................................... 8
Will v. Mich. Dep’t of State Police,
491 U.S. 58 (1989) ...................................................................................................................... 4
Wren v. Midwestern State Univ.,
No. 7:18-cv-00060-O-BP, 2019 WL 3099408 (N.D. Tex. June 25, 2019) ................................ 7
Statutes
42 U.S.C. § 1983 ....................................................................................................................... 1,3,4
Tex. Educ. Code § 110.01 ............................................................................................................... 3
Rules
Federal Rule of Civil Procedure 12(b)(1) ................................................................................... 1, 2
Federal Rule of Civil Procedure 12(b)(6) ................................................................................ 1, 2,4
Federal Rule of Civil Procedure 8(a) .............................................................................................. 2

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TO THE HONORABLE JAMES WESLEY HENDRIX:
Defendant Texas Tech University Health Sciences Center (“Defendant” or “TTUHSC”), by
and through their undersigned attorney, file this Partial Motion to Dismiss Plaintiff’s First Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and in support thereof,
respectfully show the Court as follows:
I.

BACKGROUND

This case centers around the dismissal of Plaintiff Schyler Z. Grodman, M.D., (“Plaintiff” or
“Grodman”) from TTUHSC’s Pediatrics Residency Program. (ECF No. 21, ¶ 19). Plaintiff alleges
that he was employed by TTUHSC as a Resident in 2019 and was terminated from employment in
January 2022. Id. He alleges that he is disabled due to attention deficit hyperactivity disorder,
Autism Spectrum Disorder, depression, and social anxiety. Id. at ¶ 14. He alleges that TTUHSC
discriminated against him on the basis of his disability, failed to accommodate his disability, and
retaliated against him for requesting disability accommodations. He also alleges a procedural due
process claim against TTUHSC and Dr. Samer Zaid-Kaylani, who was formerly employed by
TTUHSC. Based on these allegations, Plaintiff asserts causes of action under: (1) the Rehabilitation
Act; and (2) the Fourteenth Amendment pursuant to 42 U.S.C. § 1983.
Because TTUHSC is a Texas state institution protected by the state’s sovereign immunity,
well-established law shows that 1983 claims against state institutions are barred by the Eleventh
Amendment, and Plaintiff’s allegations fail to state a due process claim, TTUSHSC respectfully
requests the Court grant this Partial Motion to Dismiss and dismiss the 1983 claim for lack of
subject-matter jurisdiction and failure to state a claim. Further, because Plaintiff’s First Amended
Complaint does not plead facts showing TTUHSC refused to grant Grodman’s reasonable
accommodation requests, TTUHSC respectfully requests the Court dismiss Grodman’s disability
discrimination and reasonable accommodation claims.

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II.

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ISSUES IN DISPUTE AND STANDARD OF REVIEW

Issue 1: Whether Plaintiff’s procedural due process claim under Section 1983 against
TTUHSC should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1).
Issue 2: Whether Plaintiff’s Section 1983 claim should be dismissed under Rule 12(b)(6).
Issue 3: Whether Plaintiff’s reasonable accommodation claim under the Rehabilitation Act
should be dismissed under Rule 12(b)(6).
12(b)(1) Standard: When the court lacks statutory or constitutional power to adjudicate a
case, the case is properly dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1);
Hooks v. Landmark Indus., Inc., 797 F.3d 309, 312 (5th Cir. 2015). Generally, “[t]he 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) (citation omitted). “Accordingly, the plaintiff constantly
bears the burden of proof that jurisdiction does in fact exist.” Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
A defendant may challenge a court’s subject matter jurisdiction through a “facial attack” or a
“factual attack.” See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Where, as here, a
defendant challenges subject matter jurisdiction on the face of a complaint, the district court
presumes the plaintiff’s factual allegations to be true and determines whether those allegations are
legally sufficient to establish jurisdiction. See id.
12(b)(6) Standard: A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Therefore, a complaint must
allege sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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).

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ARGUMENT

A. Plaintiff’s First Amended Complaint fails to state a due process claim.
1.
TTUHSC has sovereign immunity from claims brought under Section 1983.
Eleventh Amendment immunity is a jurisdictional bar. U.S. v. Tex. Tech. Univ., 171 F.3d
279, 285 (5th Cir. 1999) (citing U.S. Const. amend. XI). “The Eleventh Amendment bars claims
against a state brought pursuant to [Section] 1983.” Aguilar v. Tex. Dep’t of Criminal Justice, 160
F.3d 1052, 1054 (5th Cir. 1998); see also Rosas v. Univ. of Tex. at San Antonio, 793 F. App’x 267,
272 (5th Cir. 2019) (“Congress did not abrogate state sovereign immunity for Title VIII or §§ 1983,
1985, or 1986 claims.”) (citing Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282,
286 (5th Cir. 1999) (per curiam)). Furthermore, the “Eleventh Amendment cloaks Texas Tech
University and TTUHSC with sovereign immunity as state institutions.” Tex. Tech. Univ., 171 F.3d
at 289 n.14; Tex. Educ. Code § 110.01) (establishing TTUHSC as state institution under control of
Texas Tech Board of Regents). Thus, TTUHSC has sovereign immunity from Plaintiff’s Section
1983 claim, the Court lacks jurisdiction over it, and it should be dismissed under Rule 12(b)(1).
2.

Plaintiff’s Section 1983 claim fails to state a claim upon which relief can be
granted.
“To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right secured by
the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.’” James v. Tex. Collin Cnty., 535 F.3d 365,
373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
Plaintiff’s First Amended Complaint does not state a Section 1983 claim.

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i. Section 1983 does not permit claims against state institutions.
The State of Texas (including its agencies and institutions) are not subject to suit under
§ 1983—neither for monetary damages, nor for declaratory or injunctive relief. 1 The express
language of § 1983 permits suits against a “person.” 2 See 42 U.S.C. § 1983. It is well-established
that a state is not a “person” subject to suit under § 1983. See, e.g., Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989); Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir. 2014) (per curiam).
Thus, Plaintiff’s Section 1983 claim against TTUHSC should be dismissed under both Rule 12(b)(1)
and 12(b)(6) because TTUHSC is not a ‘person’ within the meaning of Section 1983.” Welch v. Tex.
Tech. Univ. Health Serv. Ctr., No. 2012 WL 5986424 at *4 (N.D. Tex. Nov. 7, 2012) (citing Will,
491 U.S. at 65-66); Stollings v. Texas Tech Univ., No. 5:20-CV-250-H, 2021 WL 3748964, at *8–*9
(N.D. Tex. Aug. 25, 2021).
ii. Plaintiff has not alleged a violation of his procedural due process rights.
Even if TTUHSC could constitute a person for purposes of Section 1983, Plaintiff’s First
Amended Complaint fails to allege a violation of either his procedural due process or his substantive
due process. The threshold requirement for any due process claim is the government’s deprivation of
a liberty or property interest. DePree v. Saunders, 588 F.3d 282, 289 (5th Cir. 2009). The Supreme
Court employs a two-step analysis to determine whether an individual’s procedural due process
rights have been violated. Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010). The Court first
examines “whether there exists a liberty or property interest which has been interfered with by the

Accordingly, Section 1983 also does not abrogate the State’s sovereign immunity. Quern v. Jordan, 440 U.S. 332, 340–
45 (1979); Price v. Shorty, 632 F. App’x 211, 212 (5th Cir. 2016) (per curiam). Neither suits for money damages nor for
declaratory or injunctive relief may be brought against a state agency absent a valid waiver or Congressional abrogation
of sovereign immunity. See Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273, 280–81 (5th Cir. 2002);
Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

1

Further, a government entity “cannot be held liable under § 1983 on a respondeat superior theory.” Price v. Elder, 175
F. Supp. 3d 676, 679 (N.D. Miss. 2016) (citing Monell v. Dept. of Soc. Serv. of City of NY, 436 U.S. 658, 698 (1978));
Berry v. Texas Woman's Univ., 528 F. Supp. 3d 579, 601 (E.D. Tex. 2021) (citing Connick v. Thompson, 563 U.S. 51, 60
(2011)) (noting it is well-settled that respondeat superior and other theories of vicarious liability are inapplicable in
Section 1983).

2

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State;” then it “examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
Plaintiff alleges that he has a “constitutionally protected property [interest] in his position at
TTUHSC as a Third-Year Resident in the Pediatrics Program” and that as a member of the residency
program he “had a constitutionally protected valid entitlement to continued employment at the
University.” (ECF No. 21 ¶¶ 81, 83). The Fifth Circuit has declined to confirm whether such
entitlement to (property interest in) a medical residency certification exists. Ekmark v. Matthews,
524 Fed. App’x 62, 63 (5th Cir. 2013) (only assuming that appellant had property interest in
residency for the sake of the argument); see also Board of Curator of Univ. of Missouri v. Horowitz,
435 U.S. 78, 85 (1978) (only assuming the existence of some interest while holding that she received
all that the Fourteenth Amendment would require). Rather, the Fifth Circuit has instead focused on
the process the medical resident received. Without deciding whether a medical resident has a liberty
or property interest in their residency, the Fifth Circuit has consistently held that even if that interest
were to exist, the due process deserved is more akin to the due process a student receives rather than
employee. Ekmark, 524 Fed. App’x at 63 (“In the context of due process, medical residents are
students rather than employees of the hospital.”) (citing Shaboon v. Duncan, 252 F.3d 722, 729 (5th
Cir. 2001)).
Furthermore, the Fifth Circuit has drawn another distinction “between the process required
for students facing discipline and academic actions that require ‘far less stringent procedural
requirements.’” Ekmark, 524 Fed. App’x at 64 (quoting Horowitz, 435 U.S. at 86). In doing so, the
Fifth Circuit has emphasized that “physicians and administrators directing residency programs are in
the best position to determine which candidates are suited to progress through the program and have
satisfactorily completed the requirements for certification.” Id. (citing Davis, 882 F.2d at 974). Thus,
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“[a]dverse academic actions against medical residents require only the minimum procedure of notice
and not a hearing.” Id. (citing Horowitz, 435 U.S. at 90; and Shaboon, 252 F.3d at 731). “It is wellknown that the primary purpose of a residency program is not employment or a stipend, but the
academic training and the academic certification for successful completion of the program.” Davis v.
Mann, 882 F.2d 967, 974 (5th Cir. 1989).
Here, Plaintiff was given a probation letter on December 17, 2021, suspended on December
23, 2021, and recommended for dismissal on January 7, 2022; his recommendation for dismissal was
reviewed by an Appeal Review Subcommittee at an appeal hearing in February 2022 that Plaintiff
requested before any final determination was made by TTUHSC. (ECF No. 21 ¶ 19, 55; Ex. J, K,
M). Plaintiff was informed that his probation was due to concerns given his medical knowledge,
patient care, and professionalism. (ECF No. 21, Ex. J). When Plaintiff was suspended, he was
informed that it was for having violated the terms of his probation and that Plaintiff’s performance
constituted a danger to patients. (ECF No. 21, Ex. K). When he was recommended for dismissal,
Plaintiff was informed that it was due to performance that presents a serious compromise to
acceptable standards of patient care, unprofessional conduct towards his patients and colleagues,
failure to progress to the expected level of competency as a third-year pediatric resident, and failure
to follow the probation objectives outlined in his probation letter that jeopardized patient welfare.
(ECF No. 21, Ex. M). He appealed the decision and was afforded a hearing. (ECF No. 21, ¶ 55).
Plaintiff’s First Amended Complaint clearly demonstrates that Plaintiff was dismissed for
academic reasons because his dismissal “rested on the academic judgment of school officials that
[he] did not have the necessary clinical ability to perform adequately as a medical doctor and was
making insufficient progress toward that goal.” Harowitz, 435 U.S. at 89-90. Thus, Plaintiff was not
even entitled to a formal hearing. Ekmark 524 Fed. App’x at 64; see also Shaboon 252 F.3d at 731
(Appellant not entitled to any type of hearing as a matter of law when dismissed on academic
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grounds); Horowitz, 435 U.S. at 90. But nevertheless, Plaintiff still received a hearing and simply
disagrees with the outcome. Accordingly, Plaintiff was given sufficient due process before his
dismissal. 3
The due process owed to Plaintiff was that the University “fully [inform him] of the faculty’s
dissatisfaction with [his] clinical progress and the danger that this posed to timely graduation and
continued enrollment.” Wren v. Midwestern State Univ., No. 7:18-cv-00060-O-BP, 2019 WL
3099408 at *13 (N.D. Tex. June 25, 2019) (quoting Horowitz, 435 U.S. at 85 (internal quotations
removed)). Plaintiff was given such notice and opportunity to respond. He was informed of the
dissatisfaction the faculty had with his clinical progress as evidenced by the fact that he was placed
on probation and the probation letter not only informed him why he was on probation but that
“occurrence on [his] part of any unsafe practice or unprofessional incidents may result in the
recommendation that [he] be dismissed immediately from [the] program.” (ECF No. 21, Ex. J). He
not only had the opportunity to respond to the advance notice before termination, he in fact did so by
sending a letter to the Committee that decided to affirm the recommendation for his dismissal. (ECF
No. 21, ¶ 48). Further, he was given a hearing to respond to this recommendation before it was
finalized. (ECF No. 21, ¶ 55). For these reasons, assuming arguendo Plaintiff had a property interest
in completing his residency, because he was informed of the University’s dissatisfaction with him
and the danger that that posed to his timely graduation, provided multiple and ample opportunities to
respond and was given a hearing, Plaintiff received all the process he was due. Thus, his First
Amended Complaint does not state a procedural due process claim.

3
Plaintiff’s claim may not be based on a violation of University policies, rules, or procedures. The University’s “rules do
not establish the constitutional floor of due process.” Eckmark, 524 Fed. App’x at 64 (citing Levitt v. Univ. of Tex. at El
Paso, 759 F.2d 1224, 1230 (5th Cir. 1985)). When the procedures actually given comport with due process, even if a
university does not follow its own rules, one cannot state a procedural or substantive due process claim. See Levitt, 759

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iii. Plaintiff has not alleged a violation of his substantive due process rights.
“Substantive due process analysis is appropriate only in cases in which government
arbitrarily abuses its power to deprive individuals of constitutionally protected rights[.]” Simi Inv.
Co., Inc. v. Harris Cnty. Tex., 236 F.3d 240, 249 (5th Cir. 2000); Brennan v. Stewart, 834 F.2d 1248,
1257 (5th Cr. 1988) (internal quotation marks and citations omitted). The Supreme Court has held
that “decisions in the academic setting are subject to ‘a narrow avenue for judicial review’ under a
substantive due process standard.” Wheeler v. Miller, 168 F.3d 241, 249 (5th Cir. 1999) (quoting
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 227 (1985)). When reviewing these decisions, the
court “may not override [the decision] unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee responsible did not actually exercise
professional judgment.” Ewing, 474 U.S. at 225. This is because “[w]hen judges are asked to review
the substance of a genuinely academic decision, … they should show great respect for the faculty’s
professional judgment.” Id.
As previously stated, the Fifth Circuit has declined to state that a person has a property or
liberty interest in their medical residency. Assuming arguendo that Plaintiff had such an interest, the
complaint fails to demonstrate that the decision to terminate him was “beyond the pale reasoned
academic decision-making when viewed against the background of [his] entire [residency].”
Wheeler, 168 F.3d at 250. Plaintiff’s First Amended Complaint demonstrates that the decision to
place him on probation was based on low-test scores, multiple examples of serious patient related
incidences, and poor professionalism. (ECF No. 21, Ex. G–K, M). These are all valid academic
decisions for placing Plaintiff on probation and eventually terminating him from a medical residency

F.2d at 1229 (rejecting assertion that failure to follow university disciplinary procedure rules violated due process).

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program, where the safety and care of patients’ lives are at risk. 4 There is no indication whatsoever
that his dismissal was beyond the pale, shocking, or even surprising, given the stated reasons for the
dismissal—which Plaintiff fails to specifically refute. See, e.g., (ECF No. 21 at § VI). As such,
Plaintiff’s First Amended Complaint does not state a substantive due process claim against
TTUHSC.
B. Plaintiff’s First Amended Complaint fails to state a reasonable accommodation claim.
A reasonable accommodation is a change in workplace conditions that would enable an
employee to perform the essential functions of the job. Trahan v. Wayfair Maine, LLC, 957 F.3d 54,
65 (1st Cir. 2020). However, “[a] requested accommodation that simply excuses past misconduct is
unreasonable as a matter of law.” Id. After all, federal disability law does not oblige an employer to
accommodate an employee’s disability retroactively. 5 Id.; Lottinger v. Shell Oil Co., 143 F.Supp.2d
743, 758, 768 (S.D. Tex. 2001). (“Thus, the ADA [and accordingly, the Rehabilitation Act] does not
insulate an employee from adverse action taken by an employer because of misconduct in the
workplace, even if his improper behavior is arguably attributable to an impairment.”). “The Equal
Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance makes clear that the
requirement to provide reasonable accommodations under the [act] is ‘always prospective,’ and that
‘an employer is not required to excuse past misconduct even if it is the result of the individual’s
disability.’” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1316 (10th Cir. 2017). There exists no
obligation to initiate the interactive process to identify a reasonable accommodation during the
interim between misconduct and eventual termination. See Green v. Medco Health Sols. of Texas,
LLC, 947 F. Supp. 2d 712, 729 (N.D. Tex. 2013), aff'd sub nom. Green v. Medco Health Sols. of
As in Shaboon, only the process required for academic—not disciplinary—decisions was warranted, because he was
not terminated solely for disciplinary reasons. 252 F.3d at 731.

4

Section 504 of the Rehabilitation Act incorporates portions of the ADA by reference. Flynn v. Distinctive Home Care,
Inc., 812 F.3d 422, 426 (5th Cir. 2016).
5

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Texas, LLC, 560 F. App’x 398 (5th Cir. 2014).
In other words, “[w]hen an employee requests an accommodation for the first time only after
it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too
late.’” Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012). “Such a request is better
understood as a plea either for forgiveness or for a second chance.” Trahan 957 F.3d at 65; see also
Rose v. Laskey, 110 Fed. Appx. 136, 138 (1st Cir. 2004) (per curiam) (finding that plaintiff’s
presentation of therapist’s letter requesting leave of absence after plaintiff threatened supervisor with
violence was “untimely” as well as unreasonable); Hill v. Kan. City Area Transp. Auth., 181 F.3d
891, 894 (8th Cir. 1999) (finding accommodation request untimely when employee made request
only after committing two rule violations that “she knew would mandate her discharge”).
Here, Plaintiff knew an adverse employment action was imminent when he was placed on
suspension, on December 23, 2021. (ECF No. 14-1, K). According to the First Amended Complaint,
this is the “first time” Plaintiff requested the accommodation that he be allowed to take leave to
adjust his medication. (ECF No. 21, ¶ 35, Ex. L). Plaintiff was notified that he had violated the terms
of his Probation Objectives and that concerns existed that the performance of his duties were
seriously compromised or may constitute a danger to patients. Id. He was notified that the program
had 30 days to conclude an investigation and determine the next course of action. Id. After that
notice, in January 2022, Plaintiff proposed to rectify his employment by requesting disability
accommodations. (ECF No. 21, Ex. L, N). Thus, Plaintiff’s request followed workplace
misconduct—when termination was looming. The request should not be viewed as an
accommodation proposal at all; instead, it was a request for forgiveness or a second chance. Trahan
957 F.3d at 65.
Further, Grodman alleges he previously made “informal” requests for accommodation. (ECF
No. 21, ¶¶ 75–77). But these allegations do not satisfy the plausible pleading standard. An employee
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seeking accommodation for a mental disorder, where the limitations and necessary accommodations
are not open and obvious, has the burden to specifically identify not only a disability, but also
disclose the resulting limitations and suggest reasonable accommodations. Taylor v. Principal Fin.
Grp., Inc., 93 F.3d 155, 165–66 (5th Cir. 1996). Moreover, this obligation is ongoing. An employer
cannot be held responsible if accommodations provided are ineffective and the employee does not
alert the employer until it is too late—and he has committed workplace misconduct—even if the
misconduct was due to the disability. See Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)
(finding no liability when employer made efforts to accommodate employee but specific limitations
of disability where unknown and employee had not previously requested specific accommodation
that had been denied); Miles-Hickman v. David Powers Homes, Inc., 589 F. Supp. 2d 849, 867, n. 38
(S.D. Tex. 2008) (“In general, it is the responsibility of the individual with the disability to inform
the employer that an accommodation is needed.”). [A]n employee cannot remain silent and expect
his employer to bear the burden of identifying the need for and suggesting appropriate
accommodation.” Seaman, 179 F.3d at 301.
Accordingly, if an employee requests discrete accommodations for a non-open and obvious
impairment in isolated instances but does not continue requesting them or disclose to his employer
that he needs accommodations he had previously received in past situations—or alternatively does
not disclose that a reasonable accommodation is not effective—until termination is looming and after
terminable workplace misconduct, as in this case, the employee has not met his initial burden. (ECF
No. 21, ¶ 24). Thus, assuming arguendo TTUHSC had any obligation to provide reasonable
accommodations at all, taking Plaintiff’s factual allegations as true and indulging every reasonable
inference in his favor, he has still not plausibly pled that TTUHSC refused to provide him reasonable

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accommodations. 6 He has simply alleged that TTUHSC did not forgive his misconduct.
As discussed, Plaintiff’s First Amended Complaint shows that Plaintiff did not make a formal
request for an accommodation (to adjust his medication) until termination was looming, when he had
been placed on suspension. (ECF No. 21, ¶¶ 35, 43, Ex. K, L). In addition, the First Amended
Complaint further shows that Plaintiff did not disclose “the extent of his psychiatric problems” until
he made this request. (ECF No. 21, ¶ 48); see also (ECF No. 21, ¶ 16) (further showing how
Plaintiff’s condition was not open and obvious by alleging it only limited a major life activity when
active). Thus, even if Plaintiff had received accommodations in the past, he still had the obligation to
inform his employer that he needed them again, prospectively, by submitting a request identifying
his disability, specifying what accommodations he desired, and identifying the specific mental
limitations justifying the need for such accommodations—before termination was looming. But
Plaintiff seemingly concedes he requested accommodations not prospectively, but to avoid
termination for past misconduct and performance. See (ECF No. 21 at ¶¶ 43, 45).
TTUHSC was under no obligation under the Rehabilitation Act to ignore his prior
misconduct and performance. Plaintiff had been given numerous opportunities to correct his
deficiencies within the residency program, but to no avail. As in Jones, Plaintiff’s request was “too
little, too late.” Whether his behavior was a result of his disability is irrelevant for the purposes of
this analysis. As a matter of law, the Court should dismiss Plaintiff’s reasonable accommodation
claim. In the alternative, if the Court disagrees and finds Plaintiff’s allegations of informal requests
satisfy the pleading standard, the Court should partially dismiss the claim, holding that Plaintiff
cannot hold TTUHSC liable under a reasonable accommodation theory for not granting his request
Plaintiff’s frames the progressive increase in responsibility and independent medical practice expected of medical
residents as a withdrawal of accommodations, but even accepting the allegation as fact—that Defendant deliberately
stopped providing accommodations in situations where it had previously provided them—Plaintiff’s obligation to
speak up before it was “too little too late” would remain unchanged.
6

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for leave to adjust his medication. Under the facts as pleaded, this request was untimely and cannot
be viewed as an accommodation request at all.
IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Section 1983 claim is barred by sovereign immunity
and the Eleventh Amendment. Even if it were not barred, Plaintiff has failed to state a procedural
due process claim—not only because TTUHSC is not a “person” who may be sued under Section
1983, but also because Plaintiff’s First Amended Complaint demonstrates that he received all the
process he was due under the Fourteenth Amendment. Finally, because Plaintiff has failed to allege
facts showing that he requested and was denied reasonable accommodations for a non-open and
obvious impairment, he has failed to state a reasonable accommodation claim. In the alternative, at
least the portion of the claim alleging that TTUHSC did not allow Plaintiff to take leave to adjust his
medication should be dismissed.
Defendant TTUHSC, therefore, respectfully requests that this Court grant this motion and for
such other relief as it may show itself justly entitled.
Respectfully submitted.
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
JAMES LLOYD
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
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/s/ Joseph Keeney
Joseph Keeney
State Bar No. 24092616
Assistant Attorney General
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4090
Facsimile: (512) 320-0667
Joseph.Keeney@oag.texas.gov
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of Defendants’ Partial Motion to Dismiss was filed via the
CM/ECF system on January 31, 2024, to:
Jeffrey M. Tillotson
Enrique Ramirez-Martinez
TILLOTSON JOHNSON & PATTON
1201 Main Street, Suite 1300
Dallas, Texas 75202
(214) 382-3041 Telephone
(214) 292-6564 Facsimile
jtillotson@tillotsonlaw.com
Eramirez@tillotsonlaw.com

/s/ Joseph Keeney
JOSEPH KEENEY
Assistant Attorney General

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