Toni Marie Bullock v. The University of Texas at Arlington

Date: 02-11-2022

Case Number: 02-20-00212-D

Judge: Dana Womack

Court:

Plaintiff's Attorney:

Fort Worth, Texas- Best Americans with

Disabilities Act (ADA)Lawyer Directory

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Defendant's Attorney: Jason T. Contreras

Description:

Fort Worth, Texas - Americans with Disabilities Act (ADA) lawyer represented Appellant with appealing dismissal of alleged violations of the ADA.

According to her pleadings, Bullock was a student at UTA who "suffers from

severe major depressive disorder and post-traumatic stress disorder.” After

requesting extended time for examinations and to complete assignments, Bullock was

given an accommodation letter1

from UTA granting her the following

accommodations:

• Occasional extension of due dates

• Instructor to provide copies of overhead materials

• Permit tests/quizzes to be taken in a reduced-distraction environment

• Absence leniency

• Tardiness leniency

• Allow audio recording of all lecture material

1The first accommodation letter was dated September 19, 2018. On

October 15, 2019, UTA gave Bullock an additional accommodation letter.

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• Extended time (2X) for in-class and online TIMED work (tests, quizzes,

pop quizzes, writing assignments)

• Permit tests/quizzes to be taken in the ARC2

(subject to availability)

Bullock claimed that she sent the accommodation letter to one of her professors, but

the professor denied receiving it because it was sent to her personal rather than

professional email address.

After Bullock sent a new accommodation letter to the professor, the professor

acknowledged receipt of both letters, but according to Bullock, refused to

retroactively apply the letter, "resulting in negative grades” for Bullock. In Bullock's

words, her "emotional condition deteriorated” and "her performance suffered in ALL

classes for the Fall 2018 semester which were all taught by that same professor.”

Thereafter, Bullock stated that she "was also forced to file a Complaint with the

United States Department of Education, Office for Civil Rights (OCR), alleging

violations of the Rehabilitation Act of 1973 [ ](Section 504), 29 U.S.C. §794 (amended

1992), Title II of the [ADA] of 1990 (Title II), 42 U.S.C. §12132.”

While OCR was investigating, UTA offered to settle the complaint, and a

resolution agreement was entered on July 17, 2019. Bullock contends that under the

agreement,

UTA agreed to allow [Bullock] to re-take the courses that she previously

took with her accommodations being denied at no additional cost to her,

2"ARC” is not defined or described in the record.

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to utilize the new grade she made in the courses in calculating her GPA,

and making other adjustments requested by [Bullock], as well as

refunding her tuition and fees related to one of the courses. UTA also

agreed to take other actions, including conducting training on its

obligation under Section 504 and Title II.

According to Bullock, by taking this action, UTA was able to stop OCR's

investigation of her complaint and "head off an adverse finding.”

While acknowledging the agreement and accommodations, Bullock alleged that

because OCR does not seek to recover damages for the complaints it investigates,

there was no provision for making her "whole” after she suffered "severe emotional

distress” and a one-year delay in her education as she dealt with the complaint.

Therefore, Bullock filed suit against UTA, alleging that "UTA's actions in failing and

refusing to accommodate [her] disabilities” constituted a violation of the

Rehabilitation Act and the ADA. Bullock asserted no causes of action under state

law. She claimed damages due to "stress, panic attacks and depression, all of which

have negatively impacted her emotional condition and self-esteem.” UTA answered

the suit with a general denial and affirmative defenses, including sovereign immunity.

Several months after answering, UTA filed a plea to the jurisdiction in which it

asserted that Bullock's lawsuit was barred by sovereign immunity and Eleventh

Amendment immunity. Bullock responded to the plea. After a hearing on the plea,

the trial court took the matter under advisement. The trial court later signed an order

granting the plea "without prejudice to the refiling of the claims included herein, in

whole or in part, in federal court.” Bullock appeals from this order.

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On appeal, Bullock poses two questions: (1) Did Congress clearly and

unambiguously express its intent that States must consent to waive immunity before

receiving federal funds under a federal-state spending program through the

Rehabilitation Act and the ADA statutes? and (2) Did UTA knowingly and voluntarily

waive its immunity thereby consenting to suit by accepting conditionally-given federal

funds under the Rehabilitation Act and the ADA? UTA phrases the issue, "Did the

trial court commit error in granting UTA's Plea to the Jurisdiction in light of Bullock's

failure to overcome sovereign immunity in response to a lawsuit asserting only federal

causes of action brought in state court against a state agency?” We conclude that

immunity was not waived and that the trial court did not err in granting UTA's plea to

the jurisdiction.

III. DISCUSSION

A. Standard and Scope of Review

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack

of subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000). The claims asserted may form the context in which a dilatory plea is raised, but

the plea should be decided without delving into the merits of the case. Id. Whether a

court has subject matter jurisdiction is a legal question. State v. Gonzalez, 82 S.W.3d

322, 327 (Tex. 2002).

The burden is on the plaintiff to plead facts affirmatively demonstrating the

trial court's jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

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(Tex. 2004). A trial court's ruling on a plea to the jurisdiction is reviewed de novo.

Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).

B. Sovereign Immunity and the Eleventh Amendment

UTA is part of The University of Texas System and is under the management

and control of the board of regents of The University of Texas System. Tex. Educ.

Code Ann. §§ 65.02(a)(1), 68.01–.02. State universities are agencies of the State;

therefore, UTA is protected by the doctrine of sovereign immunity. Nkansah v. Univ.

of Tex. at Arlington, No. 02-10-00322-CV, 2011 WL 4916355, at *3 (Tex. App.—Fort

Worth Oct. 13, 2011, pet. denied) (per curiam) (mem. op. on reh'g); see also Univ.

Interscholastic League v. Sw. Officials Ass'n, Inc., 319 S.W.3d 952, 957 (Tex. App.—Austin

2010, no pet.) ("The University of Texas was created by the Texas Constitution, see

Tex. Const. art. VII, § 10, and it is well settled that state universities are governmental

entities.”). Sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the State or certain governmental units have been sued unless the

State consents to suit. Nkansah, 2011 WL 4916355, at *3.

While the State can expressly waive its immunity, it must do so by "clear and

unambiguous” language. Tex. Gov't Code Ann. § 311.034 ("In order to preserve the

legislature's interest in managing state fiscal matters through the appropriations

process, a statute shall not be construed as a waiver of sovereign immunity unless the

waiver is effected by clear and unambiguous language.”); see also Sampson v. Univ. of

Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016) ("The state or governmental unit can

7

be sued only if the Legislature waives immunity in 'clear and unambiguous

language.'”). Bullock has failed to cite to any authority indicating that the Texas

Legislature has clearly and unambiguously waived the state's sovereign immunity.

Eleventh Amendment immunity3 protects nonconsenting states from being

sued in their own courts for federal law claims. Hoff v. Nueces County, 153 S.W.3d 45,

48 (Tex. 2004) (per curiam). The Eleventh Amendment to the U.S. Constitution

states, "The Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. States "retain immunity from private suit in their own courts, an

immunity beyond the congressional power to abrogate by Article I legislation.” Alden,

527 U.S. at 754, 119 S. Ct. at 2266.

There are two well-established exceptions to Eleventh Amendment immunity.

Hurst v. Tex. Dep't of Assistive & Rehab. Servs., 482 F.3d 809, 810 (5th Cir.), cert. denied,

552 U.S. 989, 128 S. Ct. 490 (2007). First, Congress can abrogate Eleventh

Amendment immunity without a state's consent when acting pursuant to its authority

3The United States Supreme Court has noted that "Eleventh Amendment

immunity” is "convenient shorthand but something of a misnomer, for the sovereign

immunity of the States neither derives from, nor is limited by, the terms of the

Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 2246

(1999). Rather, States' immunity from suit is a "fundamental aspect of the sovereignty

which the States enjoyed before the ratification of the Constitution, and which they

retain today . . . except as altered by the plan of the Convention or certain

constitutional Amendments.” Id. at 713, 119 S. Ct. at 2246–47.

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under the enforcement provisions of Section 5 of the Fourteenth Amendment. Id.

(citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S. Ct. 3142, 3149–50

(1985), superseded on other grounds, as recognized in Lane v. Pena, 518 U.S. 187, 198,

116 S. Ct. 2092, 2099 (1996)). Second, a state may waive its immunity and consent to

suit in federal court. Id. One way a state can waive its Eleventh Amendment

immunity is by accepting federal funds that were disbursed under Congress's Article I,

Section 8 spending power and were properly conditioned on the state forgoing its

sovereign immunity. Id. However, a state's receipt of federal funds does not

automatically constitute a waiver of its Eleventh Amendment immunity. Id. at 811.

C. Application of Law to Facts

Bullock makes no argument and cites to no authority that the Texas Legislature

has expressly waived the State's sovereign immunity4 or that Congress abrogated

Texas's immunity under the enforcement provisions of the Fourteenth Amendment.

Instead, she contends in her first issue that Congress clearly and unambiguously

conditioned acceptance of federal funds on a state's waiver of immunity, and she

contends in her second issue that UTA's acceptance of federal funds was thus a

knowing and voluntary waiver of its immunity. Bullock's arguments under these

issues turn on language in the Rehabilitation Act and the ADA. Specifically, she relies

on "Section 504 of the Rehabilitation Act and [t]he ADA statutes 42 U.S.C. §§ 12231

4On appeal, Bullock concedes in her brief that "[t]here is no question that the

State of Texas has sovereign immunity.”

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and 12202” for her proposition that "no state that accepts Federal financial assistance

shall be immune in federal or state court from an action for violations of those

codes.” UTA responds that it is a state agency entitled to sovereign immunity, that

there has been no clear and unambiguous waiver of sovereign immunity in this case,

and that Eleventh Amendment immunity prevents it from being sued in state court

for damages for violation of federal law. We agree with UTA.

1. The Rehabilitation Act

The applicable portion of the Rehabilitation Act states, "No otherwise qualified

individual with a disability . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C.A. § 794(a). It also contains a judicial review provision in

one subsection of Section 722:

Any party aggrieved by a final decision described in subparagraph (I),

may bring a civil action for review of such decision. The action may be

brought in any State court of competent jurisdiction or in a district court

of the United States of competent jurisdiction without regard to the

amount in controversy.

Id. § 722(c)(5)(J)(i).

In its examination of this provision in Hurst, the Fifth Circuit addressed the

question of whether the State of Texas waived its Eleventh Amendment immunity to

suit in federal court by accepting federal funding to support its Vocational

Rehabilitation Program under Title I of the Rehabilitation Act. 482 F.3d at 810; see

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also 29 U.S.C.A. §§ 701–796. In that case, Hurst filed suit to review the denial of

medical treatment by the Texas Rehabilitation Commission (now the Texas

Department of Assistive and Rehabilitative Services), arguing that the State of Texas

had waived its immunity. Hurst, 482 F.3d at 811. Specifically, Hurst argued that the

judicial review provision provides a clear statement of intent to require a state to

waive its Eleventh Amendment immunity in order to receive federal funds. Id.

In deciding the case, the Fifth Circuit first noted that the United States

Supreme Court had previously addressed a different section of the Rehabilitation Act

with very similar language, finding that it was merely a general authorization for suit—

not a "clear-statement of intent”—that did not waive Eleventh Amendment

immunity. Id. at 811–12 (citing Atascadero, 473 U.S. at 247, 105 S. Ct. at 3149–50). In

affirming the lower court's dismissal of the suit, the court determined that the judicial

review provision "does not contain the necessary 'clear-statement' requiring a waiver

of Eleventh Amendment immunity if the State of Texas accepts federal funds for this

program. Neither has Texas voluntarily waived its Eleventh Amendment immunity

for this program.” Id. at 814.

Our sister appellate court has agreed with the Fifth Circuit's holding that with

the judicial review provision, Congress has not clearly stated that by accepting federal

funds, the State of Texas would waive its Eleventh Amendment immunity.5

Hurst,

5While not binding on this court as a United States Supreme Court decision,

the Fifth Circuit's pronouncements are "persuasive authority.” Hurst v. Tex. Dep't of

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2008 WL 4667355, at *9. The Corpus Christi court expressly agreed with the Fifth

Circuit that the judicial review provision was a "general authorization for suit” and

not a clear statement by Congress that states were waiving sovereign immunity by

accepting federal funds. Id. at *8 (citing Hurst, 482 F.3d at 812). We agree with these

courts that the Rehabilitation Act sections relied on by Bullock do not condition the

acceptance of federal funds on a state's waiver of immunity.

Bullock also argues that 42 U.S.C.A. Section 2000d-7(a) of the Civil Rights Act

of 1964 abrogates a state's Eleventh Amendment immunity for violations of certain

statutes, including the Rehabilitation Act. That statute provides in part,

A State shall not be immune under the Eleventh Amendment of the

Constitution of the United States from suit in Federal court for a violation

of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of

any other Federal statute prohibiting discrimination by recipients of

Federal financial assistance.

42 U.S.C.A. § 2000d-7(a) (emphasis added).

However, at least one Texas court has examined this provision and held that a

"state's receipt of federal financial assistance does not automatically constitute a

waiver of its immunity under the Eleventh Amendment.” Univ. of Tex. at Dallas v.

Matney, 280 S.W.3d 882, 884 (Tex. App.—Dallas 2009, no pet.). Instead, a waiver is

only recognized in limited circumstances, one of which requires that any condition

Assistive & Rehabilitative Servs., No. 13-06-332-CV, 2008 WL 4667355, at *8 (Tex.

App.—Corpus Christi 2008, no pet.) (mem. op.) (citing Brooks v. Ctr. for Healthcare

Servs., 981 S.W.2d 279, 286 (Tex. App.—San Antonio 1998, no pet.)).

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imposed on the recipients must be stated "clearly and unambiguously” in the statute.

Id.

And in Wion v. Thayler, the Waco court of appeals, citing Section 2000d-7,

pointed out that there is no waiver of state immunity to suits brought in state courts

under the Rehabilitation Act. No. 10-09-00369-CV, 2010 WL 4644497, at *3 (Tex.

App.—Waco Nov. 17, 2010, no pet.) (mem. op.); see also 42 U.S.C.A. § 2000d-7(a) ("A

State shall not be immune under the Eleventh Amendment . . . from suit in Federal

court for a violation of section 504 of the Rehabilitation Act . . . .” (emphasis added)).6



We agree that Section 2000d-7, on its face, does not clearly and unambiguously

condition acceptance of federal funds on a state's waiver of immunity for federal

claims in state court, and we overrule Bullock's issues as to her Rehabilitation Act

claims.

2. The ADA

Bullock also argues that under the ADA, Congress has clearly conditioned

acceptance of funds on a state's waiver of immunity. Title II of the ADA authorizes

suits by private citizens for money damages against public entities that violate Section

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In another opinion by a sister appellate court, the Corpus Christi court

examined whether there was a waiver of immunity in a suit brought by an individual

who alleged that he was denied an American Sign Language interpreter at aide

eligibility interviews. Schraer v. Tex. Health & Human Servs. Comm'n, No. 13-12-00702-

CV, 2014 WL 586036, at *6 (Tex. App.—Corpus Christi Feb. 13, 2014, no pet.)

(mem. op.). In its review of a plea to the jurisdiction granted to the Texas Health and

Human Services Commission and its Executive Commissioner, the court held that

"sovereign immunity bars Schraer's ultra vires claims under Title II of the ADA and

Section 504 of the Rehabilitation Act.” Id.

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12132 of the Act. See 42 U.S.C.A. § 12133 ("The remedies, procedures, and rights set

forth in section 794a of Title 29 shall be the remedies, procedures, and rights this

subchapter provides to any person alleging discrimination on the basis of disability in

violation of section 12132 of this title.”); Wion, 2010 WL 4644497, at *2. The waiver

provision of the ADA provides, "A State shall not be immune under the eleventh

amendment to the Constitution of the United States from an action in Federal or

State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C.A.

§ 12202; Wion, 2010 WL 4644497, at *2.

To determine whether Congress has unambiguously conditioned acceptance of

funds on a state's waiver of immunity, courts apply a five-part test: (1) the federal

expenditure must be in pursuit of the general welfare; (2) any condition on the state's

receipt of federal funds must be unambiguous, enabling the states to exercise their

choice knowingly, "cognizant of the consequences of their participation”; (3) any

condition must be reasonably related to the purpose of the federal grant; (4) the grant

and any conditions cannot violate other constitutional provisions; and (5) the grant

and its conditions cannot amount to coercion as opposed to encouragement. See

South Dakota v. Dole, 483 U.S. 203, 206–07, 107 S. Ct. 2793, 2796–97 (1987); Gruver v.

La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 182 (5th Cir.

2020), cert. denied, 141 S. Ct. 901 (2020).

Bullock's brief cites to Dole and states that there is a five-prong test but

contains no discussion or analysis of how the test applies to the ADA, and she fails to

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cite to any authority holding that sovereign immunity has been "clearly and

unambiguously” waived for ADA claims brought in state court against a state agency.

Neither Dole nor a Fifth Circuit case cited by Bullock authorized suits against a state

or one of its agencies in state court. See Dole, 483 U.S. at 206–07, 107 S. Ct. at 2796–

97; Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005). Therefore, we reject

Bullock's arguments that, by accepting federal funds, UTA has waived its sovereign

immunity in state court for her claims against it for alleged violations of the ADA, and

we overrule the remainder of her issues. See Miranda, 133 S.W.3d at 226 (holding

plaintiff has burden to show trial court's jurisdiction).

Outcome:

We affirm the trial court’s order granting UTA’s plea to the jurisdiction and

dismissing Bullock’s claims.

Plaintiff's Experts:

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Comments:

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About This Case

What was the outcome of Toni Marie Bullock v. The University of Texas at Arlington?

The outcome was: We affirm the trial court’s order granting UTA’s plea to the jurisdiction and dismissing Bullock’s claims.

Which court heard Toni Marie Bullock v. The University of Texas at Arlington?

This case was heard in <center><h4><b> Court of Appeals Second Appellate District of Texas at Fort Worth </b> <br><br> <font color="green"><i>On appeal from The 17th District Court Tarrant County, Texas </i></font></center></h4>, TX. The presiding judge was Dana Womack.

Who were the attorneys in Toni Marie Bullock v. The University of Texas at Arlington?

Plaintiff's attorney: Fort Worth, Texas- Best Americans with Disabilities Act (ADA)Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: Jason T. Contreras.

When was Toni Marie Bullock v. The University of Texas at Arlington decided?

This case was decided on February 11, 2022.