IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JONATHAN M. WHITE, §

 §

Plaintiff, §

 § 

VS. § Civil Action No. 3:22-CV-1386-D

 §

UT SOUTHWESTERN MEDICAL §

CENTER, § 

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Jonathan M. White (“White”) brings this pro se action against defendant The

University of Texas Southwestern Medical Center (“UT Southwestern”), alleging claims

under Titles I, II, III, IV, and V of the Americans with Disabilities Act of 1990 (“ADA”), as

amended, 42 U.S.C. § 12101 et seq.; the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution; and Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794.1

 UT Southwestern moves to dismiss under Fed. R. Civ. P. 12(b)(1)

and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim on which relief

can be granted. For the reasons that follow, the court grants UT Southwestern’s motion but

also grants White leave to replead.

1

Although there is a pleading on file that has been docketed as an amended

counterclaim, this pleading was filed by White, not UT Southwestern, and it consists of a

letter to the court requesting permission to supplement a filing that White made on September

12, 2022 in response to UT Southwestern’s motion to dismiss. See infra note 4.

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I

White was formerly employed by UT Southwestern for approximately six months in

2017 as an administrative assistant.2

 During his tenure, he was diagnosed with bipolar

disorder. White was approved for emergency leave for the period of October 26, 2017

through November 30, 2017. While White was on leave, UT Southwestern contacted him

to determine his return-to-work date, which had not been included on his accommodation

request form. White did not respond to these inquiries and was subsequently terminated by

UT Southwestern on November 10, 2017, while he was seeking treatment for his disability,

because of his inability and unavailability to work. 

White filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on November 20, 2018, and was issued a Notice of Right to Sue on

March 29, 2022. White then filed the current lawsuit alleging disability discrimination, in

violation of Titles I, II, III, IV, and V of the ADA, the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, and Section 504 of the

Rehabilitation Act.

UT Southwestern contends that White’s claims under Titles I and V of the ADA are

barred by sovereign immunity and, consequently, that the court lacks subject matter

2

In deciding UT Southwestern’s motion to dismiss, the court construes White’s

complaint in the light most favorable to him, accepts as true all well-pleaded factual

allegations, and draws all reasonable inferences in his favor. See, e.g., Lovick v. Ritemoney

Ltd., 378 F.3d 433, 437 (5th Cir. 2004). And because White is pro se, the court liberally

construes the allegations of the complaint. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per

curiam); SEC v. AMX, Int’l Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam). 

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jurisdiction to adjudicate these claims. UT Southwestern maintains that White’s claims

under Titles II, III and IV of the ADA, the Equal Protection Clause of the Fourteenth

Amendment, and the Rehabilitation Act must be dismissed under Rule 12(b)(6) for failure

to state a claim. White opposes the motion,3

 which the court is deciding on the briefs that

are properly on file.4

II

The court begins by setting out the standards that apply when deciding UT

Southwestern’s motion to dismiss.

“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by

statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d

144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225

(5th Cir. 1994)). A Rule 12(b)(1) motion can mount either a facial or factual challenge. See,

e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013)

3

UT Southwestern filed its motion to dismiss on August 10, 2022. White’s response

was due on September 5, 2022. See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an

opposed motion must be filed within 21 days from the date the motion is filed.”); White did

not file his response until September 12, 2022. Although White’s response is late, the court

will consider it because the timing has not interfered with the decisional process of the court. 

The court will not consider, however, White’s second response to UT Southwestern’s

response filed on December 16, 2022. That response comes several months after the

response deadline prescribed local rule.

4

On September 16, 2022 White filed a motion to file a supplemental counterclaim,

which is more properly deemed to be a motion for leave to supplement his response to UT

Southwestern’s motion to dismiss. The court denies the motion to supplement because the

proposed supplemental response would be futile.

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(Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). When

a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject

matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule

12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading and

assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must

deny the motion.” Id. (citing Paterson, 644 F.2d at 523). “The burden of proof for a Rule

12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff

constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).

In deciding a Rule 12(b)(6) motion, the court evaluates the sufficiency of the

plaintiff’s complaint “by ‘accepting all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.’” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855

F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (alterations adopted) (quoting in re

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). “The court’s review [of

a Rule 12(b)(6) motion] 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) (citation omitted).5

 To survive UT Southwestern’s Rule 12(b)(6)

5

On November 18, 2022, after briefing on the motion to dismiss had concluded, White

submitted for filing a thumb drive that contains an audio recording that White alleges

supports his discrimination claim against UT Southwestern. The court declines to consider

this evidence given the scope of what a court can properly consider when deciding a facial

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motion, White’s complaint must allege “enough facts 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). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough

to raise a right to relief above the speculative level . . . .”). “[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct, the complaint

has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S.

at 679 (alterations adopted) (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a

pleading must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Although “the pleading standard Rule 8 announces does not require

‘detailed factual allegations,’” it demands more than “labels and conclusions.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “a formulaic recitation of the elements

of a cause of action will not do.” Id. (quoting Twombly, 550 U. S. at 555).

Rule 12(b)(1) motion and a Rule 12(b)(6) motion.

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III

A

The court turns first to White’s Title I claim. The Supreme Court of the United States

has held that, although the ADA states that sovereign immunity is abrogated for Title I

claims, 42 U.S.C. § 12202, Congress did not validly abrogate the States’ immunity. See Bd.

of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that because

Congress failed to identify a pattern of discrimination by the States that violated the

Fourteenth Amendment, it did not validly abrogate the States’ immunity). Therefore,

because UT Southwestern is an arm or instrumentality of the State of Texas, Daniel v.

University of Texas Southwestern Medica Center, 960 F.3d 253, 260 (5th Cir. 2020), it is

entitled to sovereign immunity from claims brought under Title I of the ADA, and, in turn,

this court lacks subject matter jurisdiction over White’s Title I claim.6

B

The court turns next to White’s ADA Title II claim and concludes that it fails as well. 

Title II provides that “no qualified individual with a disability shall, by reason of such

6

White maintains that UT Southwestern’s sovereign immunity defense is barred by

promissory and equitable estoppel. But White has failed to adequately plead that UT

Southwestern ever misrepresented to him that it was not entitled to sovereign immunity for

ADA claims or that it promised not to assert the defense. He has therefore failed to plead

allegations that are sufficient to allege jurisdiction based on estoppel from asserting

sovereign immunity. See, e.g., Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 864

(5th Cir. 1999) (quoting Clardy Mfg. Co. v. Marine Midland Bus. Loans, Inc., 88 F.3d 347,

360 (5th Cir. 1996)); Johnson v. Seacor Marine Corp., 404 F.3d 871, 878 (5th Cir. 2005)

(citation omitted).

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disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. “Title II does not create a cause of action for employment

discrimination.” Taylor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir. 2015) (citations

omitted). Because White’s claim is based entirely on allegations of employment

discrimination, he has failed to state a claim under Title II of the ADA.

C

White’s Titles III and IV claims must also be dismissed because they are clearly

inapposite to the factual allegations on which his lawsuit is based. 

Title III provides that “no individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who

owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. §

12182(a). Title IV governs telecommunication services for hearing-impaired and speechimpaired individuals. 47 U.S.C. §§ 225, 611. UT Southwestern is not alleged to be a

telecommunication service or a place of public accommodation. See 42 U.S.C. §§ 12131(1),

12181(7). And White does not allege that he is impaired in his hearing or speech. Therefore,

White has failed to state claims on which relief can be granted under ADA Title III or IV.

D

White’s ADA Title V claim is barred by sovereign immunity. “Title V itself does not

abrogate a state’s sovereign immunity. Instead, a plaintiff may bring a retaliation claim

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against a state entity only to the extent that the underlying claim of discrimination effectively

abrogates sovereign immunity of the particular state.” Block v. Tex. Bd. of L. Exam’rs, 952

F.3d 613, 619 (5th Cir. 2020) (quoting Dottin v. Tex. Dep’t of Crim. Just., 627 Fed. Appx.

397, 398 (5th Cir. 2015) (per curiam)). Because, as explained above, White’s ADA Title I

discrimination claim is barred by sovereign immunity, any retaliation claim brought under

Title V is similarly barred.

IV

White’s Rehabilitation Act claim must also be dismissed for failure to state a claim

on which relief can be granted. 

Section 504 of the Rehabilitation Act provides that “[n]o 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. § 794(a). The

statute of limitations for a Rehabilitation Act claim is determined by reference to state law. 

See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982-83 (5th Cir. 1992). In Texas,

therefore, the statute of limitations is two years. See id. (citing Tex. Civ. Prac. & Rem. Code

Ann. § 16.003 (West 2005)). The statute of limitations commenced from the moment White

knew he had suffered an injury. Based on the allegations of the complaint, that would have

been from the moment he learned that UT Southwestern had terminated his employment. See

Helton v. Clements, 832 F.2d 332, 334-35 (5th Cir. 1987). Although White maintains that

the statute of limitations did not begin to run on a potential Rehabilitation Act claim until he

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had received his right to sue letter from the EEOC, White was not required to exhaust his

Rehabilitation Act claim because he was not a federal employee. See Dugger v. Stephen F.

Austin State Univ., 232 F.Supp.3d 938, 953 (E.D. Tex. 2017) (collecting cases). Therefore,

the statute of limitations was not tolled during the EEOC investigation. Here, the complaint

alleges that White was terminated on November 10, 2017, and therefore the statute of

limitations on White’s Rehabilitation Act claim expired on November 10, 2019.7

 White did

not file his complaint, however, until June 27, 2022, well after the two-year limitations

period had elapsed. Therefore, because the statute of limitations had expired by the time

White filed his complaint, his Rehabilitation Act claim must be dismissed as time-barred.

V

Finally, the court turns to White’s claim for discrimination in violation of the Equal

Protection Clause of the Fourteenth Amendment. This claim must also be dismissed for

failure to state a claim. 

When disability discrimination is alleged, the challenged state action is subject to

rational basis review. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). 

Here, UT Southwestern states that it terminated White because he was unable to provide UT

7

To obtain a Rule 12(b)(6) dismissal based on an affirmative defense, the “successful

affirmative defense [must] appear[] clearly on the face of the pleadings.’” Cochran v. Astrue,

2011 WL 5604024, at *1 (N.D. Tex. Nov. 17, 2011) (Fitzwater, C.J.) (quoting Sivertson v.

Clinton, 2011 WL 4100958, at *2 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.)). In other

words, UT Southwestern is not entitled to dismissal under Rule 12(b)(6) based on the statute

of limitations unless White has “pleaded himself out of court by admitting to all of the

elements of the defense.” Id. (alteration adopted) (quoting Sivertson, 2011 WL 4100958, at

*3). Here, White has pleaded himself out of court as to his Rehabilitation Act claim.

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Southwestern a date by which he would be able to return to work, and UT Southwestern was

not required to accommodate what was essentially a request for indefinite leave. Rogers v.

Int’l Marine Terminals, Inc., 87 F.3d 755, 760 (5th Cir. 1996) (quoting Myers v. Hose, 50

F.3d 278, 283 (4th Cir. 1995)) (holding that an employer is not required by the ADA to grant

an employee indefinite leave). White does not dispute that he failed to provide UT

Southwestern a date certain upon which he would be able to return to work. Therefore, he

has failed to plausibly plead that UT Southwestern’s decision to terminate his employment

was not rationally related to the legitimate state interest of ensuring proper staffing of state

facilities.

VI

White has not plausibly pleaded a state-law claim. But even if he had, the court would

decline in its discretion to exercise supplement jurisdiction over his state-law claims now that

his federal-law claims have all been dismissed. The court may decline to exercise such

jurisdiction where the claims that permitted original jurisdiction have dropped out of the

case. See 28 U.S.C. § 1367(c)(3) (court may decline to exercise supplemental jurisdiction

where it has dismissed all claims over which it has original jurisdiction); Cedillo v. Valcar

Enters. & Darling Del. Co., 773 F. Supp. 932, 939-42 (N.D. Tex. 1991) (Fitzwater, J.)

(discussing supplemental jurisdiction).

VII

On November 8, 2022 White submitted a letter to the court docketed as a motion for

leave to stay and amend complaint, in which he seeks a stay so that he can amend his

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complaint and add information contained in his letter. Because the court is permitting White

to file an amended complaint,8

 it denies White’s motion without prejudice.

Although the court can deny leave to amend when an amendment would be futile, see

Stripling v. Jordan Production Co., 234 F.3d 863, 872-73 (5th Cir. 2000), no amendment of

White’s complaint could overcome UT Southwestern’s defense of sovereign immunity as to

the Title I and V claims, and it is questionable whether White can remedy the deficiencies

in his claims under Titles II, III, and IV of the ADA, the Equal Protection Clause, and the

Rehabilitation Act, the court will grant White leave to amend.

First,

in view of the consequences of dismissal on the complaint alone,

and the pull to decide cases on the merits rather than on the

sufficiency of pleadings, district courts often afford plaintiffs at

least one opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are incurable

or the plaintiffs advise the court that they are unwilling or

unable to amend in a manner that will avoid dismissal.

In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005)

(Fitzwater, J.) (alteration adopted) (quoting Great Plains Trust Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (Fitzwater, J.)).

Second, because White is proceeding pro se, the court should grant him leave to

replead. See, e.g., Scott v. Byrnes, 2008 WL 398314, at *1 ( N.D. Tex. Feb.13, 2008)

8

On December 9, 2022 White filed an amended complaint without leave of court. 

Because it was necessary for White to obtain leave, the court strikes the amended complaint. 

White must file a first amended complaint that is separate from the one he filed on December

9, 2022.

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(Fitzwater, C.J.) (quoting Barber v. G.H. Rodgers, No. CA3-84-1750-D, slip op. at 7 (N.D.

Tex. Sept. 13, 1988) (Fitzwater, J.)). White must file his first amended complaint within 28

days of the date this memorandum opinion and order is filed. 

VIII

The court reminds White of his obligation going forward to comply with the local

civil rules of this court and the Federal Rules of Civil Procedure. These rules apply to White

despite his pro se status. See N.D. Tex. Civ. R. 83.14 (“Pro se parties must read and follow

the local civil rules of this court and the Federal Rules of Civil Procedure.”). This means that

although his pleadings are construed more liberally than are those of a licensed attorney, see

supra note 2, he must otherwise comply with the local and national civil rules. His failures

thus far consist of untimely filings, pleadings that the rules do not recognize, mislabeled

docket entries, and filings that are not in proper form. Adhering to the local and national

rules should enable him to avoid most or all of these errors.

* * *

For the reasons stated, the court grants UT Southwestern’s motion to dismiss but also

grants White leave to replead. The court denies without prejudice White’s November 8,

2022 motion for leave to stay and amend complaint, and it strikes White’s amended

complaint, docketed on December 9, 2022 as ECF No. 26. White must file his first amended 

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complaint within 28 days of the date this memorandum opinion and order is filed. 

SO ORDERED.

December 28, 2022.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

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