The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is Defendants Tennessee Technology Center and Tennessee Board of Regents' (collectively "Defendants") motion to dismiss (Court File No. 3) and memorandum in support (Court File No. 4). Plaintiff David Giorgadze ("Plaintiff") has not filed a response. For the following reasons, the Court will GRANT Defendants' motion (Court File No. 3).
Plaintiff, at some point, enrolled in the Tennessee Technology Center at Elizabethton's ("TTC-E") nursing program (Court File No. 1, Attachment No. 1, Complaint ("Compl."), at ¶ 3). In March 2006, Plaintiff was suspended from the program (id. at ¶). This lawsuit concerns that suspension.
Plaintiff alleges he was suspended from the program because he used notes during a test (id. at ¶ 14). Plaintiff was unaware he could not use notes during tests, so he appealed his suspension (id.). According to the Complaint, Plaintiff was ultimately found innocent of wrongdoing and offered reinstatement to the program (id. at ¶ 15). Plaintiff's return to the program was delayed because TTC-E requested Plaintiff's high school transcripts, although Plaintiff had already "been enrolled in the program for some time" (id.). After several months, Plaintiff still had not been reinstated to the program (id. at ¶ 16).
On June 20, 2006, a meeting was held, per Plaintiff's request, with TTC-E's administration to determine when Plaintiff would be readmitted to the program (id.). At that meeting, the Director of Nursing and the Student Services Coordinator offered Plaintiff the chance to return to the Practical Nursing Program if he agreed to repeat his clinical rotation and all tests in Medical Surgery I and II (id. at ¶ 17). Plaintiff objected to this because he saw no reason to repeat those courses, since he believed he had performed satisfactorily (id. at ¶ 18). Eventually, Plaintiff learned he had received a rating of "Unsatisfactory" in his clinical rotation (id. at ¶ 19). Plaintiff had not been informed of this rating, even though TTC-E's policy and procedure require students be notified of unsatisfactory evaluations (id.). Plaintiff wrote a letter to Defendants, objecting to having to retake the courses and requesting reinstatement (id. at ¶ 21). The Student Services Coordinator at TTC-E told Plaintiff they intended to readmit him at the beginning of the next term, and a "mailing error" had kept their communication from arriving(id. at ¶ 22). The letter did not arrive until four days after the new term began(id.).
Plaintiff alleges TTC-E's actions were willful, malicious, and intended to discriminate based on Plaintiff's age, sex and national origin (id. at ¶¶ 25-26). Plaintiff brings suit against TTC-E and the Board of Regents under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and under the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq. (id. at ¶ 6--7). Plaintiff also brings state-law claims for breach of contract, bad faith dealing and wrongful termination or dismissal (id. at ¶ 8). Plaintiff seeks injunctive relief in the form of reinstatement into the program, (id. at ¶ 13), compensatory damages for harm to his well-being, future income lost due to Plaintiff's damaged reputation, (id. at ¶ 25), and costs and attorney's fees (id. at ¶ 26). Defendants have moved for dismissal under Fed. R. Civ. P. 12(b)(1) and (6).
When reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all the complaint's factual allegations as true. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994). The Court may not grant a motion to dismiss based upon a disbelief of a complaint's factual allegations. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting courts should neither weigh evidence nor evaluate the credibility of witnesses); Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). Rather, the Court must liberally construe the complaint in favor of the party opposing the motion and determine whether the plaintiff has pled "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In deciding a motion to dismiss, the question is "not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (citations and quotation marks omitted). However, bare assertions of legal conclusions are insufficient. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). The "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (emphasis in original).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may take the form of either a facial or a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Facial attacks challenge the sufficiency of the pleading itself. Factual attacks, on the other hand, challenge the factual existence of subject matter jurisdiction, irrespective of what is or might be alleged in the pleadings. Id. An assertion of Eleventh Amendment sovereign immunity constitutes an attack of the latter variety.
In considering a factual attack upon the court's jurisdiction, no presumption of truth applies to the plaintiff's factual allegations, and the court is free to weigh the evidence and resolve factual disputes so as to satisfy itself as to the existence of its power to hear the case. Id. (internal citations omitted). "[T]he entity asserting Eleventh Amendment immunity has the burden to show that it is entitled to immunity, i.e., that it is an arm of the state." Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002) (adopting rule from United States Courts of Appeal for the Third, Fifth, Seventh, and Ninth Circuits).
Defendant moves to dismiss Plaintiff's entire complaint for several reasons. First, Defendant argues Plaintiff has failed to state a claims for which relief can be granted with respect to Title VII since Plaintiff does not allege discrimination in the employment context. Similarly, Defendant states Plaintiff has failed to state a claim under the THRA because Plaintiff did not allege discrimination in connection with employment, public accommodations, or housing.*fn1 Finally, Defendant contends the Court is without jurisdiction to hear Plaintiff's breach of contract, bad faith dealing and wrongful termination or dismissal ...