Z.J. v. Vanderbilt Univ.

• Citation: 355 F.Supp.3d 646
• Decision Date: 19 December 2018
• Docket Number: NO. 3:17-cv-00936,3:17-cv-00936
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Z.J., Plaintiff, v. The VANDERBILT UNIVERSITY, Defendant.

355 F.Supp.3d 646

Z.J., Plaintiff,

v.The VANDERBILT UNIVERSITY, Defendant.

NO. 3:17-cv-00936

United States District Court, M.D. Tennessee, Nashville Division.

Filed December 19, 2018

James Robin McKinney, Jr., May & McKinney, PLLC, Nashville, TN, for Plaintiff.

Bruce M. Berman, Molly M. Jennings, Danielle Conley, Pro Hac Vice, Wilmer, Cutler & Pickering Hale and Dorr LLP, Washington, DC, Sheree C. Wright, Office of the General Counsel, Timothy K. Garrett, Bass, Berry & Sims, Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Z.J., a former Vanderbilt University ("Vanderbilt") student, brings this action arising out of Vanderbilt's investigation of an accusation of sexual misconduct made against him by a female student ("A.H.") following an alleged physical incident that occurred after a St. Patrick's Day tailgate party.¹ After the investigation, Vanderbilt concluded that Z.J. had engaged in non-consensual sexual contact, dating violence, and attempted non-consensual sexual intercourse with A.H., and it expelled Z.J. as a sanction. Z.J. brings this action asserting over twenty claims under Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"); the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) ("Clery Act"); the Declaratory Judgment Act, 28 U.S.C. § 2201 ; and multiple Tennessee laws of contract and tort. Before the Court is Vanderbilt's Motion to Dismiss pursuant to Federal Rule of Procedure 12(b)(6). (Doc. No. 26.) Z.J. has responded in opposition (Doc. No. 36) and Vanderbilt has replied (Doc. No. 38). For the following reasons, Vanderbilt's Motion will be granted and this case will be dismissed.

I. Legal Standard

To survive a Rule 12(b)(6) motion, " ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). 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. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed." Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007). The Court of Appeals for the Sixth Circuit recently confirmed, after a challenge, that this is indeed the governing standard for Title IX claims as well as other claims. See Doe v. Miami Univ., 882 F.3d 579, 588-589 (6th Cir. 2018) (rejecting the reduced pleading standard in Title IX cases enunciated by the Court of Appeals for the Second Circuit).

In deciding a motion to dismiss, the court is not required to accept summary allegations, legal conclusions, or unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) ; Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996). Nor is the court required to accept as true allegations that are contradicted by documents that have been incorporated by reference in the complaint. Williams v. CitiMortgage, Inc., 498 F. App'x 532, 536 (6th Cir. 2012).

As a general rule, "matters outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under [Federal Rule of Civil Procedure] 56." Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The term "pleadings" encompasses both the complaint and the answer, Fed. R. Civ. P. 7(a), and a copy of any exhibit thereto. Fed. R. Civ. P. 10(c). However, the Court of Appeals has held that "[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim." Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; see also Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (holding that a district court may consider documents referenced in the pleadings that are "integral to the claims" in deciding motion to dismiss); Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (noting that in deciding a motion to dismiss "the court may also consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice"). In short, "if both parties reference and quote extensively from particular documents, and neither party contests the appropriateness of considering the documents on review of a motion to dismiss, the Court may consider the documents." Doe v. Ohio St. Univ., 219 F.Supp.3d 645, 653 (S.D. Ohio 2016) (hereinafter " Ohio St. Univ. I") (citing In re Fair Fin. Co., 834 F.3d 651, 656 n.1 (6th Cir. 2016) ).

II. Factual Allegations and Procedural Background

Vanderbilt is a private university located in Nashville, Tennessee, that accepts federal funding. (Doc. No. 23 at ¶¶ 6, 32.) Z.J., a resident of Tennessee, matriculated at Vanderbilt in the fall of 2012 and intended to graduate. (Id. at ¶ 8, 11-12, 96.) Upon enrolling at Vanderbilt, Z.J. – like every other student – became (1) generally bound by Vanderbilt's honor code, which is embodied in the "Community Creed," and (2) specifically governed by the policies and regulations set forth in the Vanderbilt Student Handbook ("Handbook").² (Doc. Nos. 27-1 at 1-2.) Vanderbilt specifies that it reserves the right to "add to, modify, or revoke any of its regulations and policies, including those in the [H]andbook, without notice," and students are cautioned that "the information provided, and the regulations and policies articulated in the [Handbook ] are not intended to be all-inclusive and do not constitute a contract."³ (Id. at 2) The Handbook includes a general provision regarding "Fair Procedures" in which Vanderbilt states that it is "committed to providing students with the opportunity to present complaints about the action of any member of the University community." (Doc. No. 23 at ¶ 105.) Vanderbilt generally commits to providing "fair and appropriate procedures, including the opportunity for appeal, for addressing and resolving complaints," that will be administered openly, fairly, cooperatively, and with a mutual respect among the participants. (Id.)

A. Vanderbilt's Sexual Misconduct Policy

The Handbook includes a dedicated disciplinary policy concerning "Sexual Misconduct and other Forms of Power-Based Personal Violence" ("Sexual Misconduct Policy"). (Id. at 99-121.) According to the Sexual Misconduct Policy, "Vanderbilt takes reports of sexual misconduct and power-based personal violence seriously." (Id. at 108.) Vanderbilt (1) explains that it "prohibits and seeks to eliminate all forms of sexual misconduct, including sexual harassment and sexual assault, and other forms of power-based personal violence, which includes dating violence, domestic violence, and stalking"; (2) declares that it "has a duty to take steps to prevent and redress sexual misconduct and power-based personal violence"; and (3) affirms that "[s]uch conduct is contrary to Vanderbilt's values, represents socially irresponsible behavior, and is not tolerated." (Id. at 99.)

The Sexual Misconduct Policy lists and defines a variety of prohibited offenses, several of which are relevant here. (Id. at 104.) "Non-Consensual Sexual Contact" includes "any contact of a sexual nature – however slight – with the breasts, buttocks, groin, genitals, mouth, or other body part of another, by any person upon another without effective consent." (Id. at 104; Doc. No. 23 at ¶ 50.) "Dating Violence" is defined as "sexual or physical abuse or the threat of such abuse committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person against whom the violence is perpetrated." (Doc. No. 27-1 at 104; Doc. No. 23 at ¶ 50.) Finally, "Non-Consensual Sexual Intercourse" is "any vaginal and/or anal penetration – however slight – by a penis, object, tongue, or finger, and/or oral copulation (mouth to genital contact), by any person upon another without effective consent." (Doc. No. 27-1 at 104; Doc. No. 23 at ¶ 50.) The Sexual Misconduct Policy clarifies that "[d]eterminations regarding whether a person's level of intoxication affects their ability to give effective consent will be made on a case-by-case basis." (Doc. No. 27-1 at 106.) It also notes that intoxication does not "provide a valid explanation or excuse for engaging in any form of sexual misconduct or power-based personal violence." (Id.) Finally, the Sexual Misconduct Policy defines effective consent as "consent that is informed and freely and actively given."⁴ (Id. at 107.)

How Vanderbilt responds to complaints under the Sexual Misconduct Policy "depends upon a variety of factors, including the wishes of the victim, the facts and circumstances of the specific incident, to whom it was reported, and [Vanderbilt's] obligations under applicable federal and state laws." (Id. at 108.) Vanderbilt recommends that students make complaints of sexual misconduct directly to its Equal Opportunity, Affirmative Action, and Disabilities Services Department ("EAD"), which is led by the University's Title IX Coordinator (at the time Anita Jenious), and has responsibility for administrative investigation of reports of Sexual Misconduct Policy violations. (Id. at 110.) "The EAD...