Full opinion text
OPINION AND ORDER MELINDA HARMON, District Judge. Pending before the Court in the above referenced cause, alleging in Dr. Doris M. Jackson’s Second Amended Complaint age discrimination under the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.051, denial of promised medical leave benefits under Texas statutory and common law, breach of contract and promissory estoppel, retaliation in violation of her rights to free expression under the First and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and common-law assault, are the following motions: (1) Texas Southern University’s (“TSU’s”) motion to dismiss (instrument # 37) and (2) Individual Defendants’ (Doctors Sunny E. Ohia, Barbara E. Hayes, Inyang N. Osemene, and Cyril A. Abobo’s) motion to dismiss (#41). I. Standards of Review “When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.’ ” Crenshaw-Logal v. City of Abilene, Texas, 436 Fed.Appx. 306, 308 (5th Cir.2011), quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 762 (5th Cir.2011); Fed.R.Civ.P. 12(h)(3). If a complaint could be dismissed for both lack of jurisdiction and for failure to state a claim, “the court should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule] 12(b)(6).” Crenshaw-Logal, 436 Fed.Appx. at 308, quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977). The reasons behind this practice are to preclude courts from issuing advisory opinions and barring courts without jurisdiction “ ‘from prematurely dismissing a case with prejudice.’ ” Id., citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter jurisdiction exists, here the plaintiff, must bear the burden of proof for a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a “facial” attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr.No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D.Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm’n of Arts, 992 F.Supp. 876, 878-79 (N.D.Tex.1998), aff'd, 199 F.3d 279 (5th Cir.2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). Such is the case here. In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995). Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as trae. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Tivombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) [“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ”), citing Twombly, 127 S.Ct. at 1974. “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System,, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Dismissal is appropriate when the plaintiff fails to allege “ ‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief above the speculative level.’ ” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955. In Ashcroft v. Iqbal, 129 S.Ct. at 1940, the Supreme Court, observed that “only a complaint that states a plausible claim for relief survives a motion to dismiss,” a determination involving “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” “[Tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” under Rule 12(b). Iqbal, 129 S.Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief....” Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir.2006), cert. denied, 549 U.S. 825, 127 S.Ct. 181, 166 L.Ed.2d 43 (2006). II. Substantive Law A. Eleventh Amendment and TSU’s Sovereign Immunity Because at times the Second Amended Complaint references federal causes of action even though it asserts that Plaintiffs claims are brought under state law, the Court addresses the Eleventh Amendment and sovereign immunity with respect to both. The Eleventh Amendment of the United States Constitution provides, “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.C.A. Const. Amend. XI. In Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court held that despite the literal language of the Eleventh Amendment, a federal court also cannot entertain a suit brought by a citizen against his own State. It is black letter law that the Eleventh Amendment “bars an individual from suing a state in federal court unless the state consents to suit or Congress has clearly and validly abrogated the state’s sovereign immunity.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir.2002). The State’s consent must be clear and unequivocal. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). While Congress has the power to abrogate Eleventh Amendment immunity with regard to rights protected by the Fourteenth Amendment, the Supreme Court has also required “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several States.’ ” Id., citing Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (holding that 42 U.S.C. § 1983 does not override the States’ Eleventh Amendment immunity). Moreover, “[i]t has long been settled that the reference to actions ‘against one of the United States’ encompasses not only actions in which a State is actually named as a defendant, but also certain actions against state agents and state instrumentalities.” Regents of the University of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). “An action by a citizen against a state official in his official capacity is an action against the State and is barred by the Eleventh Amendment, subject only to the limited exception permitted by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (action seeking prospective relief against state officer permissible against ongoing constitutional violation).” Henley v. Simpson, 527 Fed.Appx. 303, 305 (5th Cir.2013). A suit against a state official in Ms individual capacity does not always implicate the Eleventh Amendment. Id., citing Hudson v. City of New Orleans, 174 F.3d 677, 687 n. 7 (5th Cir.1999) (regarding indemnification statutes, simply because the state will “pay judgments when an officer is sued in his individual capacity does not extend Eleventh Amendment protections around the officer.”). The Eleventh Amendment does not bar “monetary relief for past harms when the state official is sued in his individual capacity and will be personally liable for the judgment.” Id. at 305-06, citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), and Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). “ ‘[W]hen the action is in essence one for recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.’ ” Id. at 306, quoting Ford Motor Co. v. Dep’t of Treas. of State of Ind., 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (holding that a State waives its Eleventh Amendment immunity by removing a suit to federal court). Thus “the general rule [is] that the Eleventh Amendment does not ordinarily immunize a public official from an action against him in his individual capacity,” but that rule is qualified “by acknowledging the fact specific nature of the real-party-in-interest inquiry.” Henley, 527 Fed.Appx. at 306, citing Modica v. Taylor, 465 F.3d 174, 183-84 (5th Cir.2006). Under Texas law, state universities, including Texas Southern University, “ ‘are agencies of the State and enjoy sovereign immunity.’ ” Taylor v. Texas Southern University, Civ. A. No. 4:12-CV-01975, 2013 WL 3157529, at *3-4 (S.D.Tex. June 20, 2013) (concluding that, “for Eleventh Amendment purposes, a suit against a state agency or university is a suit against the state”) (and cases cited therein, including Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). A state’s sovereign immunity bars suits for monetary damages against state officers in their official capacities. McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir.2004). The “ ‘mere receipt of federal funds does not establish that a State has consented to suit in federal court.’ ” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Title 42 U.S.C. § 1983, which “provides injured plaintiffs with a cause of action when they have been deprived of federal rights under color of state law,” states, Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... To state a claim under § 1983, a plaintiff must “ ‘(1) allege a violation of rights secured by the Constitution or laws of the Umted States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.’ ” Doe, 153 F.3d at 215, quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994). Here Plaintiff asserts Defendants violated her rights under the Fifth Amendment. Texas has not waived sovereign immunity for § 1983 monetary claims against TSU or its employees in their official capacities. Dittmer v. Texas Southern Univ., Civ. A. No. 10-182, 2010 WL 3119925, at *4 (S.D.Tex. Aug. 5, 2010). Moreover, regarding a claim for impeding the right to free expression under the First Amendment and § 1983, a state university is not a “person” for purposes of § 1983 and therefore not a proper defendant to such a claim. Taylor, 2013 WL 3157529, at *4, citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 & n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that “neither a state or persons acting in their official capacities are ‘persons’ under section 1983,” although state officials in their official capacities when sued for injunctive relief, are ‘persons’ under section 1983), and Stotter v. Univ. Of Tex. San Antonio, 508 F.3d 812, 821 (5th Cir.2007). A waiver of sovereign immunity by Texas in its own state courts does not constitute a waiver of its Eleventh Amendment immunity in federal courts. Taylor, 2013 WL 3157529, at *5. The Fifth Circuit has specifically ruled that the TCHRA “ ‘does not expressly waive sovereign immunity in federal court.’ ” Id., citing Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 332-22 (5th Cir.2002). See also Sullivan v. Univ. of Texas Health Science Center at Houston Dental Branch, 217 Fed.Appx. 391, 394 (5th Cir.2007) (holding that none of the discrimination provisions of the Texas Labor Code (§§ 21.005, 21.201(a), 21.100, 21.204(b), and 21.211) contains the requisite “clear declaration” of consent by Texas to be sued). Therefore this Court lacks subject matter jurisdiction over a TCHRA claim. Id. The Supreme Court has held that under the Family and Medical Leave Act (“FMLA”) Congress did validly abrogate the States’ sovereign immunity as to family-care claims (29 U.S.C. § 2612(a)(1)(C)), but not as to suits for money under the self-care provision (29 U.S.C. § 2612(a)(1)(D)). Taylor, 2013 WL 3157529, at *5, citing Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); Coleman v. Court of Appeals of Maryland, — U.S. —, 132 S.Ct. 1327, 1338, 182 L.Ed.2d 296 (2012); and Jackson v. Texas Southern University, Civ. A. No. H-11-4092, 2013 WL 593412, at *6 (S.D.Tex. Feb. 14, 2013). Thus the Court lacks jurisdiction over a denial of medical care under the FMLA self-care claim. Id. An age-discrimination claim under the TCHRA against the State or a state agency in federal court is barred by sovereign immunity. See Hernandez v. Texas Dep’t of Human Servs., 91 Fed.Appx. 934, 935 (5th Cir.2004) (“The State of Texas has waived its sovereign immunity in state courts for TCHRA violations.... Texas’ waiver of sovereign immunity in its own courts, however, is not a waiver of its Eleventh Amendment immunity in federal courts..... Indeed, the Eleventh Amendment bars the adjudication of pendent state law claims against nonconsent-ing state defendants in federal court.”), citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), and Pennhurst, 465 U.S. at 120, 104 S.Ct. 900; Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 332 (5th Cir.2002) (“A state’s waiver of sovereign immunity in state court does not mean the state has waived Eleventh Amendment immunity in federal court”; the Texas Labor Code does not waive Eleventh amendment immunity in federal court). The Supreme Court has also pronounced that the Age Discrimination in Employment Act’s [“ADEA’s”] “purported abrogation of the states’ sovereign immunity is invalid” because the statute could not be enacted pursuant to section five of the Fourteenth Amendment. Taylor, 2013 WL 3157529, at *6, citing Kimel v. Florida Board of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). See also Sullivan v. Univ. of Texas Health Science Center at Houston Dental Branch, 217 Fed.Appx. 391, 395 (5th Cir.2007) (affirming dismissal of ADEA claim because Congress has not abrogated the Eleventh Amendment and Texas has not voluntarily waived its immunity). Therefore the Court must dismiss any ADEA claim for lack of jurisdiction. Id. Congress also has not abrogated sovereign immunity with respect to claims under § 1981. Dittmer v. Texas Southern Univ., 2010 WL 3119925, at *4, citing Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir.1981) (“Section 1981 contains no congressional waiver of the state’s eleventh amendment immunity.”). B. Public Officials in their Individual Capacities: First Amendment Retaliation, Qualified Immunity, and the Texas Tort Claims Act The law regarding First Amendment protection of public employees’ free speech rights, specifically as professors addressing the operation of public institutions where they work, has evolved gradually and the analysis has become increasingly fact intensive. The United States Supreme Court has “recognized that Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.” U.S. v. Nat’l Treasury Employees Union, 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). “The government as employer indeed has far broader powers than does the government as sovereign.” Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). Public employees are not deprived of their right to free speech because of their employment, but that right is not absolute. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Supreme Court initially identified as the critical inquiry in modern legal analysis for First Amendment protection of a public employee’s speech whether the public employee speaks out as a citizen on matters of public concern under the circumstances. Davis v. McKinney, 518 F.3d 304, 311 (5th Cir.2008), citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Connick, 461 U.S. at 147, 103 S.Ct. 1684; Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Whether a speech addresses a matter of public concern and thus can serve as the basis of a First Amendment claim is a question of law for the court. Connick, 461 U.S. at 156, 103 S.Ct. 1684; Dorsett v. Board of Trustees for State Colleges & Universities, 940 F.2d 121, 124 (5th Cir.1991); Gibson v. Kilpatrick, 734 F.3d 395, 400 (5th Cir.2013). “If the speech does involve a matter of public concern, the government bears the burden of justifying its adverse employment action.” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In Connick, the Supreme Court refined the analysis by holding that in determining whether the employee’s speech addresses a matter of public concern the Court must consider “the content, form, and context of [the] given statement as revealed by the whole record.” 461 U.S. at 147-48, 103 S.Ct. 1684. The time, place, and manner are relevant considerations, as well as the context. Id. at 152, 103 S.Ct. 1684. Even if the public employee does speak as a citizen on a matter of public concern, his speech is not automatically protected. Instead, if the court first finds the employee speaks as a citizen on a matter of public concern, the court then applies a test to find “a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419, 126 S.Ct. 1951. In Rankin, 483 U.S. at 388, 107 S.Ct. 2891, the Supreme Court opined that in performing the balancing test, in evaluating the government employer’s interest “in the effective functioning of the employer’s enterprise,” [w]e have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speakers’s duties or interferes with the regular operation of the enterprise.... Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest. The Fifth Circuit reads Pickering’s balancing test to require the weighing of a “number of factors ... relevant in balancing the interests of the individual against those of the state, including ... (1) the degree to which the employee’s activity involved a matter of public concern; (2) the time, place, and manner of the employee’s activity; (3) whether close working relationships are essential to fulfilling the employee’s public responsibilities and the potential effect of the employee’s activity on those relationships; (4) whether the employee’s activity may be characterized as hostile, abusive, or insubordinate; [and] (5) whether the activity impairs discipline by superiors or harmony among coworkers.” Brady v. Fort Bend County, 145 F.3d 691, 707 (5th Cir.1998), cert. denied, 525 U.S. 1105, 119 S.Ct. 873, 142 L.Ed.2d 774 (1999). In Waters v. Churchill, 511 U.S. 661, 678-80, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), the Supreme Court held that where the employer and the employee disagree about the content of the employee’s speech and its impact on the workplace, the employer must conduct a reasonable investigation of the facts to determine what was actually said. In accord, Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 192 (5th Cir.2005). “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline.” Garcetti 547 U.S. at 421, 126 S.Ct. 1951. In Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007) (holding that “[j]ob-required speech is not protected”), the Fifth Circuit made clear that a public employee also is not protected by the First Amendment even if his speech was not required by his job duties, but was made in the course of performing his job duties. “Even if the speech is of great social importance, it is not protected by the First Amendment so long as it was made pursuant to the worker’s official duties.” Id. The focus is not on “the content of the speech,” but on “the role the speaker occupied when he said it.” Id. at 692. In Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008), the Fifth Circuit acknowledged this rule that activities undertaken pursuant to the plaintiffs job duties are not protected by the First Amendment, and also found that where the plaintiff acquired special knowledge through his job of the situation that was exposed in his speech, his speech is not protected. In Gibson, noting that Garcetti did not clearly define what making statements pursuant to one’s official duty entails nor establish a comprehensive framework for defining the scope of an employee’s employment, the Fifth Circuit found that the opinion did establish that neither a formal job description nor speaking about the subject matter of one’s employment is dispositive. 734 F.3d at 401, citing Williams v. Dallas I.S.D., 480 F.3d 689, 692 (5th Cir.2007). To fill the gap, the Gibson panel, starting from the premise that “activities undertaken in the course of performing one’s job are activities pursuant to official duties,” identified other factors such as “the relationship between the speech and the employee’s job, whether the speech was made within the employee’s chain of command, and whether the speech stemmed from special knowledge the employee gained as a result of the employee’s position.” Gibson, 734 F.3d at 402. Where a public employee goes beyond her “chain of command” and files complaints outside it, e.g., with the FBI or the EEOC, and her job did not require such communication, her speech is as a citizen. Id., citing Davis, 518 F.3d at 307-16. In Davis, id., the Fifth Circuit concluded that if the public employee shared his speech about job concerns with people outside the work place in addition to those in the chain of command at his work place (a “mixed” case), those external communications are made as a citizen and more likely to be protected, and a single communication can raise both official and private matters. See also Cutrer v. McMillan, 308 Fed.Appx. 819, 821 (5th Cir.2009) (citing Davis). The Supreme Court has also held in Givhan v. Western Line Consolidated Sch. Dist., that even where an employee criticizes his employer in a private communication or setting, the speech may be entitled to First Amendment protection, but that it is then subject to the Pickering balancing test. 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (“Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”). See also Garcetti, 547 U.S. at 411, 420, 126 S.Ct. 1951 (“Many citizens do much of their talking inside their respective work places, and it would not serve the goal of treating public employees ‘like any member of the public’ to hold that all speech within the office is automatically exposed to restriction, [citation omitted]”). To prove a constitutional claim of First Amendment retaliation, a plaintiff must show that (1) she “suffered an ‘adverse employment decision;’ ” (2) her “speech involved a ‘matter of public concern,’ ” (3) the plaintiffs “ ‘interest in commenting on matters of public concern ... outweighs the [defendant's interest in promoting [workplace] efficiency,’ ” and (4) the plaintiffs speech “motivated the adverse employment decision.” Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir.2001), quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.1999). Causation, i.e., that the speech was a substantial factor in motivating the adverse action, is usually a question of fact for the jury in a claim of First Amendment retaliation against a public employee, but at the summary judgment stage, the employee bears the burden of showing that a factual dispute exists. James v. Texas Collin County, 535 F.3d 365, 376 n. 10 (5th Cir.2008). “A factual dispute is ‘genuine’ if a reasonable trier of fact could return a verdict for the nonmoving party.” Id. at 373. If the plaintiff succeeds in making a prima facie case of causation, a defendant can still prevail on summary judgment if it can show by a preponderance of the evidence that it would have taken the same adverse employment action “even in the absence of the protected conduct.” Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). To retaliate against an employee for engaging in a protected activity, the employer must actually know that the employee engaged in the protected activity. Garrett v. Judson Indep. Sch. Dist., 299 Fed.Appx. 337, 343 (5th Cir.2008), citing Marsaglia v. Univ. of Texas, El Paso, 22 S.W.3d 1, 5 (Tex.App.-El Paso 1999, pet. denied). The Fifth Circuit has held that discharges, demotions, refusals to hire, refusals to promote, and reprimands are “adverse employment actions” for purposes of a First Amendment retaliation claims. Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.2011), citing Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999). The Fifth Circuit has not yet decided whether the Title VII standard for adverse actions established in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (whether a reasonable employee would have found the alleged adverse employment action “materially adverse”), applies to First Amendment retaliation cases. Gibson v. Kilpatrick, 734 F.3d 395, 400 n. 4 (5th Cir.2013), citing DePree v. Saunders, 588 F.3d 282, 288 (5th Cir.2009). Citing Connick, 461 U.S. at 138-39, 103 S.Ct. 1684, the Dorsett panel pronounced, “In public schools and universities across this nation, intrafaculty disputes arise daily over teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, and a host of other relatively trivial matters. A federal court is simply not the appropriate forum in which to seek redress for such harms.” 940 F.2d at 123-24. It further noted, “We have neither the competency nor the resources to undertake to micromanage administration of thousands of state educational institutions.... Of all fields that the federal courts “should hesitate to invade and take over, education and faculty appointments at [the university] are probably least suited for federal court supervision.” ” Id. at 124, citing Smith v. University of North Carolina, 632 F.2d 316, 345 & n. 16 (4th Cir.1980) (quoting Faro v. New York University, 502 F.2d 1229, 1231-32 (2d Cir.1974)). This Court notes that in the context of higher education in public colleges and universities, as well as K-12 schools, some courts have recognized as speech on matter of public concern some of the general areas at issue here, while others have not. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Supreme Court recognized that publicly financed educational institutions may not terminate the employment of a non-tenured college professor based on his general public criticism of the policies of the college administration, and not personal grievances. Among matters of public concern which some courts have found are protected by First Amendment and that are at issue in the instant case are the following: teachers or parents speaking out generally about the college’s being unreceptive to student’s needs and teacher’s salaries and benefits, poor treatment of students, mismanagement of the budget, mismanagement of taxpayer funds, failure to offer needed courses, accreditation, etc. See e.g., Maples v. Martin, 858 F.2d 1546, 1553 (11th Cir.1988) (finding public concern exists when speech addresses “substantive issues that could influence the public’s perception of the quality of education provided,” including “weaknesses in the curriculum,” “poor performance of Auburn graduates on professional licensing exams for engineers, all of which endanger the ability of the Department to prepare students for professional engineering careers,” and “concern that the Department’s accreditation is in jeopardy”). Qualified Immunity Title 42 U.S.C. § 1983 does not grant substantive rights, but provides a vehicle for a plaintiff to vindicate rights protected by the United States Constitution and other federal laws. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Qualified immunity, an affirmative defense, protects government officials in their personal capacity performing discretionary functions not only from suit, but from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727; Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Thus the Court examines whether the “officer’s conduct violated a constitutional right,” as well as “whether the right was clearly established” at the time of the conduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Either prong may be addressed first. Pearson, 129 S.Ct. at 808. A right is clearly established when “the contours of the right [are] sufficiently clear [such] that a reasonable official would understand that what he is doing violated that right.” Wemecke v. Garcia, 591 F.3d 386, 392 (5th Cir.2009) (citations omitted). See also Freeman v. Gore, 483 F.3d 404, 411 (5th Cir.2007) (the court applies an objective standard “based on the viewpoint of a reasonable official in light of the information available to the defendant and the law that was clearly established at the time of defendant’s actions.”). “The ‘clearly established’ standard does not mean that official’s conduct is protected by qualified immunity unless ‘the very action in question has previously been held unlawful.’ ” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir.2004), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.” Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 2740, 183 L.Ed.2d 614 (2012). Officials who act reasonably but mistakenly are entitled to qualified immunity; the defense protects all government employees but “the plainly incompetent or those who knowingly violate the law.” Anderson, 483 U.S. at 641, 107 S.Ct. 3034; Motley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “[A] defendant’s acts are held to be objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.” Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir.2001). The officer is “entitled to qualified immunity if his or her conduct was objectively reasonable in light of the legal rules that were clearly established at the time of his or her actions,” even if the conduct violated the plaintiffs constitutional right. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002) (en banc). Although qualified immunity is an affirmative defense, “plaintiff has the burden to negate the assertion of qualified immunity once properly raised.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir.2009). To meet this burden the plaintiff must allege facts showing that the defendants committed a constitutional violation under the current law and that the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the challenged actions. Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir.2005). In Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985), the Fifth Circuit held that when defendant-official raises a qualified immunity defense in his individual capacity, a heightened pleading standard must be met by Plaintiff to show with factual detail and particularity why the defendant official cannot maintain the qualified immunity defense. In Schultea v. Wood, 47 F.3d 1427, 1429-34 (5th Cir.1995) (en banc), discussing the development of qualified immunity defense and pleading rules, the Fifth Circuit further opined, “When a public official pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official’s motion or its own, require the plaintiff to reply to that defense in detail. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply.” See also Floyd v. City of Kenner, La., 351 Fed.Appx. 890, 893 & n. 2 (5th Cir.2009). In Morgan v. Hubert, 335 Fed.Appx. 466 (5th Cir.2009), the Fifth Circuit reviewed Schultea’s standard and its reasoning: We did not ground any such requirement in Rule 9(b), but nevertheless required a plaintiff to plead more than conclusions. Specifically, we reasoned that “a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants [emphasis added by Morgan panel].” “Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs’ injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Morgan, 335 Fed.Appx. at 469-70. A denial of qualified immunity at the motion to dismiss stage, to the extent that it turns on a matter of law, is an appealable final decision under 28 U.S.C. § 1291 because qualified immunity is immunity from suit and, necessarily, shields the official from the burdens of discovery. Ashcroft v. Iqbal, 129 S.Ct. at 1946.; Porter v. Valdez, 424 Fed.Appx. 382, 385 (5th Cir.2011), citing Hill v. City of Seven Points, 31 Fed.Appx. 835, 2002 WL 243261, *4 (5th Cir.2002) (“Such appellate review is premised upon the reality that, in some instances, if an order is not reviewed before the issuance of a final judgment, the practicality of reviewing that order is lost.”). Assault and Battery The elements of battery under common law are (1) a harmful or offensive contact (2) with a plaintiffs person. Doe v. Beaumont I.S.D., 8 F.Supp.2d 596, 616 (E.D.Tex.1998), citing Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, n.w.h.), citing Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967). The elements of assault under Texas common law are (1) the apprehension of (2) an immediate battery. Id. The Texas Tort Claims Act (“TTCA”), Texas Civil Practice and Remedies Code § 101.057, waives sovereign immunity for some torts, but not for claims arising out of an intentional tort, and specifically not for claims “arising out of assault and battery, false imprisonment, or any other intentional tort.” Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001). See also Gillum v. City of Kerrville, 3 F.3d 117, 123 (5th Cir.1993) (holding intentional infliction of emotional distress claim was barred by sovereign immunity because it was not'one of the claims waived by the Texas Tort Claims Act.). Section 101.106 of the TTCA. entitled “Election of Remedies,” provides in relevant part, (e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit. (f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. “Under the TTCA election of remedies provision, the claims against the individual Defendants — in both their individual and official capacities and for both money and injunctive relief — must be dismissed.” Perez v. Texas A & M Univ. at Corpus Christi Civ. A. No. 2:13-CV-225, 2013 WL 6230353, at *12 (S.D.Tex. Dec. 2, 2013), citing TTCA § 101.106, and Texas Bay Cherry Hill v. City of Fort Worth, 257 S.W.3d 379, 401 (Tex.App.-Fort Worth 2008, no pet.) (dismissal required under both individual and official capacity); Leatherwood v. Prairie View A & M Univ., No. 01-02-013340-CV, 2004 WL 253275, at *2-3 (Tex.App.-Houston [1st Dist.] Feb. 12, 2004, no pet.) (“dismissal is appropriate whether the claim is for damages or injunctive relief.”). Nevertheless § 101.106 expressly limits its scope to suits against “an employee of a governmental unit” and requires dismissal only if it is “based on conduct within the general scope of that employee’s employment.” See Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011) (holding that any state-law tort claim brought against a government employee [in his individual capacity] based on actions within the scope of his or her employment must be dismissed); in accord Univ. of Tex. Health Science Center at Houston, v. Crowder, 349 S.W.3d 640, 648-49 (Tex.App.-Houston [14th Dist.] 2011) (“[U]nder Franka, if a plaintiff sues a governmental unit and its employee, asserting claims against the employee based on conduct within the general scope of her employment, and if the plaintiff could have but did not assert common-law tort claims against the governmental unit based on the employee’s alleged conduct, then this case constitutes a suit “filed under this chapter against both a governmental unit and any of his employees” within the means of subsection (e).”), citing § 101.106(e) (“If a suit is filed under this chapter against both a governmental unit and any of its employees, the employee shall immediately be dismissed on the filing of a motion by the governmental unit.”). Indeed such claims against the government in his individual capacity acting within the scope of his employment must be dismissed even if the state has not waived sovereign immunity for a particular claim. Univ. of Tex. Health Science Center at Houston, 349 S.W.3d at 649. See also Shurb v. Univ. of Texas Health Science Center at Houston-School of Medicine, No. 4:13-CV-271, 2013 WL 4096826, at *6 (S.D.Tex. Aug. 13, 2013) (If “suit is filed against both the governmental unit and any of its employees [in their individual capacity] under this chapter, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.”). See also Deffenbaugh—Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir.1999) (“[I]f the conduct is the kind the employee is employed to perform, occurs substantially within the authorized time and space limits, and is actuated, at least in part, by a purpose to serve the employer[,] such action is within the scope ‘even if the employee ... used forbidden means of accomplishing results.’”), quoting Kolstat v. Am. Dental Ass’n, 527 U.S. 526, 543-44, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Here Plaintiff has sued both TSU and Individual Defendants, and con-clusorily alleged that Individual Defendant Dr. Abobo assaulted her in his individual capacity. Section 101.106(f) “extends governmental immunity to acts of individual governmental employees acting within the scope of their employment.” Lund v. Giauque, 416 S.W.3d 122, 125 (Tex.App.-Fort Worth 1213), citing LTTS Charter Sch. Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89-90 (Tex.2011). See also Franka, 332 S.W.3d at 381 (and cases cited therein) (“The construction of section 101.106(f) ... foreclose^] suit against a government employee in his individual capacity if he was acting within the scope of his employment.”). Section 101.001(2) of the TTCA defines “employee” as “a person, including an officer or agent, who is in the paid service of a governmental authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details. of which the governmental unit does not have the legal right to control.” “Scope of employment” is defined by the TTCA as “the performance for a governmental unit of the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Tex. Civ. Prac. & Rem.Code § 101.00(5). The Restatement (Third) of Agency § 7.07 similarly states, An employee acts within the scope of employment performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. Key Allegations of Plaintiffs Second Amended Complaint (# 36) At the relevant time Plaintiff was a tenured associate professor, with a Doctor of Pharmacy degree, at the College of Pharmacy and Health Sciences (“COPHS”) at TSU in Houston, Texas, where she had been employed for more than twenty years. She alleges that since at least 2007 the faculty and administration of COPHS were involved in an internal dispute about the operation of the college, with the faculty complaining that the administration’s conduct was harmful to the students and imperiled accreditation of the college. Faculty member Dr. Mofolu-ronso A. Enigbokan, wrote a critique relating to the dispute entitled “Inside TSU’s Pharmacy Program: An Expose on How A Failing Administration is Fomenting an Academic Mess,” detailing the administration’s failure to follow applicable statutes, internal rules, and academic standards, thereby resulting in inadequate training and professional preparation of the students and disproportionately low passing rates on licensing examinations. Plaintiff claims that she supported Dr. Enigbokan’s protest and that she independently voiced her own criticisms of the credentials and abilities of certain faculty and administrators, advocated for improved treatment of students, and urged ways to protect the accreditation of the pharmacy program, which, along with the probationary status of the general accreditation of the University, posed a potentially devastating loss of opportunity and services to minority communities served by the TSU. Plaintiff claims that in 2010, COPHS responded by changing requirements and arbitrarily dismissing dozens of students, including some close to graduation. Some students then protested at a meeting of TSU’s Board of Regents, while others filed lawsuits against COPHS. The complaint asserts that outside the scope of her duties as a faculty member and in her role “as a concerned citizen with particular knowledge of matters that were of legitimate public concern and discussion” (# 36 at p. 6), Plaintiff made oral presentations at public meetings of the Board of Regents, protesting the dismissal of students based on the sudden and unjustified changes to the academic standards, which were the result of COPHS’s inadequacies in training and which caused financial hardship to students. She also complained about a failure to confirm the academic credentials of TSU faculty and administrators, which resulted in inflated and unjustified salaries paid out of public resources. She claims that her protests were in the public interest because TSU’s student body is comprised of a large percentage of minority and low-come students and the administration’s actions necessarily had a disproportionately adverse effect on those communities, constituted a waste of public resources already expended in the education of numerous students, and were so arbitrary and unfair that they discouraged minority students from seeking professional education in COPHS. The issues received extensive public notice and discussion in the media. Plaintiff charges that because she exercised her rights to free expression under the federal and Texas Constitutions, Individual Defendants retaliated and continue to retaliate against her in the last two years in the following ways inter alia: requested that she retire; discouraged her attempts to secure promotion; provided lower compensation than what she was entitled to, given her education, experience and demonstrated ability, scope of duties, and time of service; arbitrarily disqualified her from service in the Faculty Senate and on institutional committees; participated in personal disparagement and humiliation of Plaintiff; denied her the compensation and leave provided by University policies and practices; denied her access to or use of office equipment; denied or disregarded her participation in academic activities; and assigned her a teaching load disproportionately greater than that assigned to other faculty members, including those with salaries higher than her own. As a specific example of discrimination, Plaintiff claims that Defendant Osemene repeatedly stated to Plaintiff that Plaintiff was too old to serve on the faculty and must retire. Defendant Osemene, with the participation of Defendants Ohia and Hayes, allegedly imposed retaliatory acts on Plaintiff with the intention of having Plaintiff surrender her tenure and resign. Plaintiff claims that these three Individual Defendants acted under color and authority of the State of Texas. Plaintiff, born in 1951, was over the age of forty and within the protection of Texas Labor Code § 21.051 at the relevant time period. Plaintiff filed an age discrimination charge with the United States Equal Employment Opportunity Commission and the Texas Workforce Commission, Civil Rights Division, on April 23, 2011. Plaintiff further asserts that TSU, based on information provided by Victor Simms, M.D., who was treating her for thyrotoxi-cosis and who stated that she was unable to perform any of her job duties, gave her written documentation that she was eligible for medical leave under the FMLA, 29 U.S.C. §§ 2601, et seq., and a document titled “Notice of Eligibility and Rights & Responsibilities of FMLA.” Plaintiff relied on these statements of her eligibility and entitlement to benefits under the FMLA. Plaintiff claims that when she returned from medical leave, TSU “impeded her return, refused or delayed payment of her salary, and prevented her from returning to the position she had when she took leave by refusing to assign her to classroom teaching and assigning her to non-teaching duties.” # 36 at p. 10. Plaintiff also claims that she was publicly demeaned, ridiculed, and insulted by Individual Defendants Ohia, Hayes, and Osemene, and that her personal and professional reputations were seriously damaged and she was exposed to hatred and contempt. She alleges that as a result, Dr. Abobo assaulted her, striking her on the back and causing her to fall, on February 26, 2012 at TSU’s facilities at the McGovern Campus. While she was on the ground, an administrator arrived and caused her embarrassment, humiliation and emotional distress, which still continue. She suffered painful bruises that required medical attention and caused her to miss work for a few days. TSU and the Individual Defendants’ failure to take action caused Plaintiff loss of pay and benefits, humiliation, emotional distress, damage to her personal and professional reputation, damage to her earning capacity, and damage to her enjoyment of life. TSU’s Motion to Dismiss (# 37) TSU, as an “arm of the state,” first contends that as a matter of law the Court is deprived of jurisdiction to hear a suit against it unless it can show that sovereign immunity is expressly waived. Pennhurst, 465 U.S. at 100-02, 104 S.Ct. 900; Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Although the state of Texas waived its sovereign immunity to be sued in state court for TCHRA violations, that waiver does not waive Eleventh Amendment immunity for such claims in federal court. Hernandez v. Texas Dept. of Human Services, 91 Fed.Appx. 934, 935 (5th Cir.2004). Thus this Court is barred from exercising subject matter jurisdiction over Plaintiffs age discrimination claims under the TCHRA. Perez, 307 F.3d at 332. This Court agrees. Next TSU asserts that Plaintiff fails to plead a plausible claim for denial of medical leave benefits under state law. Plaintiffs complaint refers to the FMLA regarding her medical leave, but a FMLA claim against TSU as an arm of the State is barred by the Eleventh Amendment. Plaintiff has no entitlement to such a claim under state law. Although she asserts it is brought pursuant to “statutory and common law principles of contract and promissory estoppel in Texas law,” she fails to identify any Texas statute that provides her with entitlement to medical leave or bars retaliation for taking that leave, the way the FMLA does, not to mention a statute that waives the State’s sovereign immunity to such a claim by State employees. Two principles inform the doctrine of sovereign immunity: immunity from suit and immunity from liability. General Services Com’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Immunity from suit precludes an action against the State unless the Legislature expressly consents in clear and unambiguous language, while immunity from liability shields the State from judgments even if the Legislature has expressly consented to be sued. Id. at 594-97, citing Federal Sign v. Texas Southern University, 951 S.W.2d 401, 408 (Tex.1997), superseded by statute, Tex. Gov’t Code § 2260.001-.108 (providing sovereign immunity from suit in breach-of-contract cases, but establishing an exclusive administrative process to resolve claims arising from all -written contracts for the sale of goods and services or construction.). When the State enters into a contract, it is liable on a contract made for its benefit as if it were a private person. Id. When the State contracts with a private citizen, it waives its immunity from liability, but it does not waive immunity from suit unless the private citizen obtains legislative consent to sue the State on a breach of contract claim. Id., citing Federal Sign, 951 S.W.2d at 408. “[I]t is the legislature’s sole province to waive or abrogate sovereign immunity.” Texas Nat. Res. Cons. Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002), citing Federal Sign, 951 S.W.2d at 409. That requirement applies to all of Plaintiffs contractual claims, including breach of contract and promissory estoppel. IT-Davy, 74 S.W.3d at 852, 860 (dismissing claims for breach of contract, negligent misrepresentation, quantum me-ruit, and promissory estoppel based on sovereign immunity), citing General Services Com’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex.2001) (“[T]here is but one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature.”). See, e.g., Prairie View A & M Univ. v. Dickens, 243 S.W.3d 732, 735, 737 (Tex. App.-Houston [14th Dist.] 2007) (dismissing breach of express contract and breach of implied contract claims brought by former employee against state university, its president, and vice president in their official capacities on sovereign immunity grounds); Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 679, 682-83 (Tex. App.-Amarillo 1998, pet. denied) (dismissing breach of written contract, breach of oral agreement, and breach of an implied agreement as contractual claims barred by sovereign immunity); Nussbaum v. Univ. of Tex. Med. Branch at Galveston, No. 01-99-00871-CV, 2000 WL 1864048, at *3 (Tex.App.-Houston [1st dist.] Dec. 21, 2001, pet. denied) (claim for promissory estoppel “is a form of contract claim” and is governed by the doctrine of sovereign immunity; “a private citizen must obtain legislative permission to sue the state for a contract claim”). The Court concurs with TSU’s argument. TSU further argues that Plaintiff has failed to identify any contract between her and TSU entitling her to the alleged medical leave benefits. She has also failed to allege a plausible claim for denial of medical leave, since she admits that she was granted leave, took leave, and returned to her job as Associate Professor. Nor has she alleged a plausible retaliation claim relating to the medical leave since she asserts both that TSU refused to assign her to classroom teaching on her return from medical leave, yet also complains that TSU assigned her a heavier teaching schedule than other faculty members. Plaintiff also fails to allege any promise by TSU to return her to the same duties and teaching schedule when she returned. See Hartford Fire Ins. v. City of Mont Belvieu, Texas, 611 F.3d 289, 295 (5th Cir.2010) (holding that if promise is “too vague to support detrimental reliance,” plaintiffs reliance will be deemed unjustified as a matter of law). In sum, because Plaintiff has not alleged facts establishing the Court’s jurisdiction over her claim for medical leave and has not asserted against TSU a plausible claim for denial of medical leave or for retaliation for taking leave, the claims should be dismissed. Furthermore, Plaintiff has already had a “third bite of the apple” with the filing of her Second Amended Complaint and should not be granted leave to amend again. United States ex rel. v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 387 (5th Cir.2003) (holding that leave was properly denied where the plaintiff had already had two opportunities to amend and “[t]he record indicates that the second instance was to cure the complaint’s lack of specificity, the same basis on which the Relator again argues he should be allowed to amend a third time.”). Individual Defendants’ Motion to Dismiss (# 41) Plaintiff brings a First Amendment retaliation claim against the Individual Defendants, based on her alleged speech to the TSU Board of Regents about an “internal dispute regarding the operation of the college,” the credentials and competence of the faculty and administrators, the treatment of students, and the at-risk accreditation of the pharmacy program. She claims that Dr. Osemene, with the “acquiescence and participation” of Drs. Ohia and Hayes, retaliated against her for her speech through burdensome teaching assignments, low pay, administrative matters, and departmental procedures, all in an effort to get her to resign. Plaintiff also charges Dr. Abobo with common-law assault. An “adverse employment action” for First Amendment retaliation claims under 42 U.S.C. § 1983 is restricted to “ultimate employment decisions” such as discharges, demotions, refusals to hire, refusals to promote, and reprimands. Breaux v. City of Garland, 205 F.3d 150, 157