IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

LUCI LEYKUM, M.D., §

§

 Plaintiff, §

§

v. § Civil Action No. 5:20-cv-00478-OLG

§

THE UNIVERSITY OF TEXAS §

HEALTH SCIENCE CENTER AT §

SAN ANTONIO, §

§

 Defendant. §

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO PARTIALLY DISMISS 

PLAINTIFF’S SECOND AMENDED COMPLAINT [DKT. #71]

“The plaintiff is the master of her complaint.” Cody v. Allstate Fire & Casualty Ins. Co., 19 F.4th

712, 715 (5th Cir. 2021) (internal quotes omitted). As such, it is incumbent on the plaintiff to allege 

facts sufficient to create the reasonable inference that the defendant is liable for the conduct alleged. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In this case, Plaintiff fails to allege facts sufficient to create 

the requisite inference for her Title VII retaliation claim. In her Response, Plaintiff improperly 

attempts to shift her pleading burden to Defendant, asking this Court to defer ruling on her retaliation 

claim until the “specific context” of her claim can be established (through burdensome discovery). 

Dkt. #72 at 2. Respectfully, it is Plaintiff’s responsibility to provide that context through her pleadings.

And it is Plaintiff’s burden to “nudge[] [her] claims across the line from conceivable to plausible.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). Because she fails to do so, Plaintiff’s retaliation and 

retaliatory constructive discharge claim should be dismissed. 

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 2

ARGUMENTS & AUTHORITIES

A. Plaintiff’s retaliation claim should be dismissed because Plaintiff’s Response fails to 

identify any authority supporting her assertion that the purported retaliatory actions 

constitute adverse employment actions under Title VII. 

Plaintiff’s Response highlights her pleading deficiency: she fails to plead facts necessary to 

support the inference that each of the alleged retaliatory actions constitute adverse employment 

actions. See Dkt. #71 at 3–4. To support a claim of retaliation, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which in this context means it 

might well have dissuaded a reasonable worker from making or supporting a charge of 

discrimination.” Burling N. & Santa Fe Ry v. White, 548 U.S. 53, 68 (2006) (emphasis added) (internal 

quotation marks omitted). This is an objective standard which is judicially administrable and does not 

rely on a plaintiff’s subjective feelings. Id. at 68–69. If “context matters,” as Plaintiff contends (Dkt. 

#72 at 2), then Plaintiff was required to plead facts necessary to create that context. Specifically, 

Plaintiff’s Complaint must allow the Court to reasonably infer that, in the context of all well-pleaded 

facts, Defendant’s actions would have dissuaded a reasonable worker from making a charge of 

discrimination. See Burlington Northern, 548 U.S. at 68. 

In its Motion to Partially Dismiss Plaintiff’s Second Amended Complaint, Defendant contends 

that 8 of the 9 categories of purportedly retaliatory actions do not constitute actionable adverse 

employment actions as a matter of law. Dkt. #71 at 3. In response, Plaintiff cites no authority to the 

contrary and instead contends that the Court should wait to rule on this issue until after summary 

judgment when she can explain “the specific context” of her claims. Dkt. #72 at 2–3.1 This is a burden 

Plaintiff bears at the pleading stage. Plaintiff’s Complaint offers no facts from which this Court can 

1 While Plaintiff cites authority for the proposition that “decisions affecting compensation are adverse 

employment actions,” Defendant did not contend otherwise in its Motion. Compare Dkt. #71 at 3–4, 

with Dkt. #72 at 3. 

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 3

reasonably infer that any of the items listed in categories 1–8 (see Dkt. #71 at 3) constitute adverse 

employment actions, even in the retaliation context. 

For example, Plaintiff alleges that being excluded from work-related conversations implicated 

her ability to “effectively run her division.” Dkt. #69 at 40. But she does not allege facts sufficient to 

support that conclusory allegation. The omission of the requisite factual support is critical because the 

Fifth Circuit has already held that being “ostracized by coworkers” (or even “chastised by superiors”) 

is not actionable retaliatory conduct. Stewart v. Mississippi Transp. Com’n, 586 F.3d 321, 332 (5th Cir. 

2009). Instead of providing factual allegations to distinguish her case from this binding legal precedent,

Plaintiff instead suggests that her lack of specificity is itself a basis for denying Defendant’s motion. 

See Dkt. #72 at 2. In so doing, Plaintiff attempts to convert a “threadbare recital of the elements” 

from pleading vice to pleading virtue. See Iqbal, 556 U.S. at 662. But the Supreme Court has made clear 

that “mere conclusory statements do not suffice” and Plaintiff offers nothing more here. See Iqbal, 556 

U.S. at 662. “The Plaintiff’s allegations that she was excluded from conversation . . . do[es] not rise to 

the level of actions that would have dissuaded a reasonable worker from complaining of 

discrimination.” Peyton v. City of Yazoo City, Miss., 764 F. Supp.2d 831, 840 (S.D. Miss. 2011) (applying 

Fifth Circuit precedent).

Similarly, Plaintiff contends that Dr. Reeves’ “seem[ingly] minor” act of meeting with

“Division faculty without informing [Plaintiff]” “undermined [Plaintiff’s] ability to do her job.” Dkt. 

#69 at 40. But, here too, Plaintiff fails to plead any facts demonstrating why this “might seem minor, 

[but] was not.” Id. Likewise, she alleges that “Dr. Reeves micromanaged the General and Hospital 

Medicine division by focusing on small issues like faculty effort and time allocations.” Dkt. #69 at 

¶ 40. Yet, she fails to plead any facts from which the Court could draw the reasonable inference that 

this particular flavor of “micromanagement” constitutes more than just a minor annoyance against 

which Title VII does not protect. See Burlington Northern, 548 U.S. at 68; cf. Haley v. Alliance Compressor,

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 4

LLC, 391 F.3d 644, 653 (5th Cir. 2004) (noting, in the context of an ill-fated constructive discharge

claim, that “having one’s work micromanaged may be unpleasant but does not constitute a greater

degree of harassment than that required by a hostile environment claim”). Plaintiff’s ipse dixit is not 

sufficient to survive a motion to dismiss. See Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) 

(holding that while a court “must accept the well-pleaded facts . . . as true and construe the allegation 

in the light most favorable to [the plaintiff],” it does “not accept as true conclusory allegations, 

unwarranted factual inferences, or legal conclusions”).

Indeed, contrary to Plaintiff’s unsupported contention, it is the courts’ duty to “screen out 

trivial conduct.” Burlington Northern, 548 U.S. at 69. Title VII does not protect individuals “from all 

retaliation”—only “retaliation that produces an injury or harm.” Davis v. Fort Bend Cty., 765 F.3d 480, 

490 (5th Cir. 2014) (quoting Burlington Northern, 548 U.S. at 67). Plaintiff’s allegations to do not give 

rise to the reasonable inference that a reasonable person would be deterred by the alleged actions—

indeed, Plaintiff concedes that (subjectively) she thrived under Dr. Reeves even after the purported 

retaliatory actions began. She contends that she excelled so much in her role that Dr. Reeves’ 

description of her job performance as “good” so understated her success that Plaintiff included the 

praise as an example of criticism. See Dkt. #69 at ¶ 40. Because Plaintiff fails to plead facts sufficient 

to draw the reasonable inference that any of these actions meet the requisite level of materiality to 

constitute adverse employment actions, her retaliation claim must be dismissed.

B. Plaintiff’s retaliation claim must be dismissed because Plaintiff’s Response fails to 

identify any factual allegations sufficient to support an inference of a causal 

connection between the purported adverse employment actions and the protected 

activity. 

Plaintiff’s Response attempts to shift the burden to Defendant to prove that her factual 

allegations do not satisfy the elements of a retaliation claim. See generally Dkt. #72 at 4–5. This highlights 

her failure to plead facts sufficient to draw the reasonable inference that Plaintiff’s claim satisfies the 

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 5

basic elements of a Title VII retaliation claim. Compare Twombly, 550 U.S. at 555 (holding that a 

plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level” 

and mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will 

not do”), with Dkt. #72 at 4–5. 

In her Response, Plaintiff asks this Court to infer that when she pled “that she told the chair 

of [the] compensation committee, the associate dean for clinical, and others that she believed her 

compensation was being reduced by Dr. Reeves because of her sex,” her complaint was subsequently 

shared with the entire Compensation Committee who then shared the allegation with Dr. Reeves, who 

then took retaliatory actions against Plaintiff based on an illegal motive. Dkt. #72 at 5. But Plaintiff 

provides no citations to any part of her Complaint to support such an inference—because none exist. 

These machinations cannot save Plaintiff’s claim from dismissal. 

While it is true that the Court “must accept the well-pleaded facts . . . as true and construe the 

allegation in the light most favorable to [the plaintiff],” the factual allegations giving rise to an inference 

of a causal connection still must be contained in the pleading. Here, Plaintiff’s Second Amended 

Complaint contains no factual allegations—even taken in the light most favorable to the Plaintiff—to 

create the reasonable inference of causation. As the Supreme Court put it, Plaintiff’s Complaint “must 

contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 

cognizable right of action.” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Her retaliation 

claim should be dismissed. 

C. Plaintiff’s retaliatory constructive discharge claim should be dismissed because she 

fails to plead a plausible claim. 

To support a constructive discharge claim, plaintiffs must plead “a greater degree of 

harassment than that required by a hostile work environment claim.” Brown v. Kinney Shoe Corp., 237 

F.3d 556, 566 (5th Cir. 2001). In her Response, Plaintiff relies on Seventh Circuit cases, which are 

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entirely inapposite, and two Fifth Circuit cases. Plaintiff cites Welch v. University of Texas and its Marine 

Science Institute, but its factual underpinnings bear no likeness to Plaintiff’s factual allegations. 659 F.2d 

531 (5th Cir. 1981). In Welch, the Fifth Circuit upheld a district court’s finding that the plaintiff was 

constructively discharged when her “supervisor told her that as a woman doctor should be unable to 

work for him and demanded to know . . . when she would leave her employment.” Id. at 534. Plaintiff 

has not pled any similar facts here. Compare id., with Dkt. #69.

Plaintiff’s reliance on Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir. 1992) is even more 

attenuated. While Plaintiff cites Cortes for the proposition that “requiring someone to work under a 

supervisor the employee had filed a sexual harassment complaint against and [by whom the plaintiff] 

was worried about continued harassment created unbearable working conditions,” Dkt. #72 at 6, the 

facts of Cortes are decidedly more severe than Plaintiff’s summary. 

In Cortes, the Fifth Circuit upheld a jury’s finding of sexual harassment and constructive 

discharge under the following circumstances: the plaintiff’s supervisor “repeatedly asked [her] to have 

sexual relations with him, sometimes threatening to demote or fire her if she refused;” the plaintiff’s 

supervisor “made lewd remarks about her body, told her vulgar jokes on a daily basis, showed her 

pornographic photographs, asked her to come to his house for ‘training’ after work hours, bragged 

about the size of his penis, and frequently brushed up against her legs and breasts.” Cortes, 977 F.2d 

at 197–98. After the plaintiff complained, she was demoted. Id. at 198. When she complained to 

Human Resources, the Human Resources manager “told [her] he did not believe her and that she was 

exposing herself to liability for slander,” her pay was docked, and her supervisor “began requiring 

[her] to ask his permission to leave the office, even to go to the restroom” and “[w]henever she asked 

to go to the restroom, [the supervisor] would follow her and wait in the hall until she returned.” Id.

And even after the plaintiff was transferred to another department, she was assigned to work under 

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 7

the supervisor again, and he “renewed his sexual advances and offensive jokes,” and the sexual 

harassment persisted for years. Id

By contrast, here, Plaintiff alleges that she “felt she had no other choice but to her resign” 

when her supervisor did not share his thoughts with her, told her he “ha[d] nothing further to say,” 

and “ended a conversation by simply turning around and walking way”—as one is wont to do at the 

conclusion of a conversation. Dkt. #69 at ¶¶ 40, 46. These allegations hardly describe the type of 

environment “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently 

severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive 

working environment,” Stewart, 586 F.3d at 328, much less the “greater severity or pervasiveness of 

harassment than the minimum required to prove a hostile working environment” that is required for 

a constructive discharge claim. See Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 440 (5th Cir. 2005). 

Plaintiff’s allegations do not come close to this high bar and to conclude otherwise would effectively 

allow employees to quit their at-will employment whenever work becomes an annoyance and then sue 

as though they had been terminated. 

Moreover, it is axiomatic that the bases Plaintiff cites as reasons a person would feel compelled 

to resign must be motivated by an illegal reason—otherwise, they cannot constitute contributing 

factors to a claim of constructive discharge. To support a claim of constructive discharge, a plaintiff 

must engage in a protected activity which prompts the employer to create “working conditions . . . so 

difficult or unpleasant that a reasonable person in [Plaintiff’s] shoes would have felt compelled to 

resign.” Harvill, 433 F.3d at 439–40. To take a simple example: if an employer had a small parking lot

and the plaintiff regularly had to walk a mile to get to work, the long walk could not be considered for 

purposes of a constructive discharge claim unless there was a plausible connection between the 

plaintiff’s protected activity and the lack of parking. 

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Accordingly, here, the Court cannot consider the alleged salary reduction in considering

whether Plaintiff has pled a plausible constructive discharge claim because Plaintiff’s alleges she 

incurred a salary reduction before she engaged in any protected activity. Dkt. #69 at ¶¶ 10, 15. Cause 

must precede effect. One cannot experience a salary reduction, complain about it, and then contend 

that the reduction was the result of that complaint. But by trying to incorporate her salary reduction 

into the constructive discharge analysis, that is effectively what Plaintiff is doing.2 In the absence of 

an illegal motive, the severity of an employment action does not matter; a plaintiff must demonstrate 

“a causal nexus” between protected activity and retaliatory constructive discharge. Harvill, 433 F.3d at 

439. Here, Plaintiff’s allegations affirmatively negate any causal nexus between her alleged protected 

activity and retaliatory constructive discharge. Dkt. #69 at ¶¶ 10, 15. As such, the Court cannot 

consider the salary reduction when it determines whether a reasonable person would have resigned 

their employment with UTHSCSA.

PRAYER

For the reasons stated above, The University of Texas Health Science Center at San Antonio 

respectfully asks the Court to dismiss Plaintiff’s retaliation claims. 

2 To combat this conclusion, Plaintiff hypothesizes a scenario in which a racial slur is written on a 

breakroom wall, an employee complains about it, and management refuses to take it down. Dkt. #72 

at 7. Plaintiff argues that, in this scenario—with imagined facts so divorced from the facts of this case that they 

serve primarily to highlight the weakness of Plaintiff’s claim—it would be absurd for the Court not to consider 

the slur as part of the analysis of the employee’s working environment. See id. But to support a retaliatory 

constructive discharge claim, the imagined employer would need to defer removing the slur from the 

wall because the employee complained about it. As the scenario presented by Plaintiff does not suggest 

that was the employer’s motivation, it would absolutely be correct for this hypothetical Court not to 

consider the slur in the context of a retaliation claim (although Plaintiff’s scenario certainly presents a 

strong case for a discriminatory hostile work environment claim—or potentially even discriminatory 

constructive discharge).

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 9

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

GRANT DORFMAN

Deputy First Assistant Attorney General

SHAWN COWLES

Deputy Attorney General for Civil Litigation

THOMAS A. ALBRIGHT

Chief, General Litigation Division

/s/ Amy S. Hilton

AMY S. HILTON

Assistant Attorney General

General Litigation Division

State Bar No. 24097834

Capitol Station

P.O. Box 12548

Austin, Texas 78711-2548

Telephone: (512) 936-1327

Facsimile: (512) 320-0667

amy.hilton@oag.texas.gov

Attorneys for Defendant

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Reply in Support of Motion to Partially Dismiss Plaintiff’s Second Amended Complaint 10

CERTIFICATE OF SERVICE

I certify that on February 8, 2022 this document was served on the following counsel of record 

through the Court’s CM/ECF Document Filing System or through e-mail:

Colin Walsh

Jairo Castellanos

WILEY WALSH, P.C.

1011 San Jacinto Blvd., Suite 401

Austin, Texas 78701

colin@wileywalsh.com

jairo@wileywalsh.com

Kennedy Hatfield Asel

FORD MURRAY

10001 Reunion Place, Suite 640

San Antonio, TX 78216

hatfieldasel@fordmurray.com

Attorneys for Plaintiff

/s/ Amy S. Hilton

AMY S. HILTON

Assistant Attorney General

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