UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NICODEME WANKO, ) ) Plaintiff, ) ) v. ) Civil Case No. 08-2115 (RJL) ) ) CATHOLIC UNIVERSITY OF ) AMERICA, DAVID M. O'CONNELL, ) Rev., President, GEORGE CARVEY, ) Vice-Provost, RANDALL OTT, Dean of ) School of Architecture and Planning, ) VYT GUERACKUS, Assistant Dean, ) TERRY WILLIAMS, Professor, School ) of Architecture and Planning, JUDITH ) MEANY, Professor, School of ) Architecture and Planning, SUZANNE ) REATIG, Visiting Professor, School of ) Architecture and Planning, AND ) PATRICK SAAVEDRA, Visiting ) Professor, School of Architecture and ) Planning, ) ) Defendants. )

MEMORAND~2009) [# 5] (September OPINION ~,

The plaintiff, Nicodeme Wanko ("Wanko"), alleges that Catholic University of

America ("Catholic University" or "the University") and several individual faculty

members discriminated against him. The defendants filed a Motion to Dismiss arguing

Wanko failed to state a claim on which the Court can grant relief. After reviewing the

pleadings and record, this Court GRANTS the defendants' motion. BACKGROUND

Wanko, born in Cameroon, Africa, studied engineering and architecture at

Catholic University starting in 2002. (Compl. [Dkt. #1] ~~ 11, 14, 16.) In March 2006,

after instructors dropped Wanko from a course and he failed two other courses, (see id. ~~

21, 30, 32), he was dismissed from the University, (see id. ~~ 30,32,35). In his

complaint, Wanko focuses on four events that occurred before his dismissal.

First, Wanko alleges his instructors "discriminated" against him in a Spring 2005

architecture class. Wanko also vaguely alleges defendant Judith Meany and defendant

Suzanne Reatig complained about his accent, insulted him, "criticiz[ ed] [his] proposal on

preconceived racial beliefs," and "creat[ed] an overall hostile learning environment"

before eventually dropping him from the course. (Id. ~~ 18-21). As a result, Wanko

complained of race and national origin discrimination to defendant Vyt Guerackus, the

Assistant Dean of the School of Architecture and Planning. (Id. ~~ 22-23.) Vyt

Guerackus met with Wanko to discuss his complaints. (Id. ~ 24.) Wanko does not

provide details of the meeting, alleging only that the instructors Meany and Reatig did not

attend. (Id.)

Second, in the Fall of2005, Wanko re-enrolled in the architecture class, which was

being taught by Defendant Patrick Saavedra. (Id. ~~ 27-28.) Wanko does not plead

details of his academic performance, only that he failed the course. (Id.) Wanko alleges

Saavedra met with him at the end of the semester to inform him of his failing grade. (Id.

2 ~~ 29-30.) Wanko broadly alleges Saavedra scheduled this meeting, which was held off

campus at 7:00 p.m., "expect[ing] to provoke an uncontrolled reaction from Plaintiff that

could be recorded and subsequently used for Plaintiffs disciplinary expulsion." (Id. ~

31. ) Wanko however does not elaborate on this assumption, contend that the meeting was

recorded, or even assert that meetings were generally held at a different time or location.

Third, Wanko alleges that although he initially received a B in the course, his

grade was changed, two years later, to an F. (Id. ~ 32.) Wanko alleges no one informed

him that he failed to complete an assignment or of the possibility that his grade would be

changed, despite his meeting with a member of the administration few times each

semester. (Id. ~ 34.) Wanko also alleges his grade was changed at a time when he was no

longer able to receive a tuition refund for the 2006 spring semester. (Id. ~ 33.) Wanko

further alleges that Williams, the professor of the course, stated he changed Wanko's

grade because Guerackus, an assistant dean, requested the change. (Id. ~ 38.)

Finally, Wanko alleges that the defendants "conspired" to retaliate against him

because of his discrimination complaints. (Id. ~ 25.) In support of this allegation, Wanko

asserts that while Catholic University scheduled a meeting to discuss his discrimination

allegations, the University did not take any other action in response to his complaints.

(Id. ~ 24.) Wanko also points out that the dean allegedly did not transfer academic credits

to Catholic University's architecture school that Wanko had either earned in Catholic

3 University's engineering school or at the University of Cali fomi a-Los Angeles. (ld. ,-r

26.)

In March 2006, Catholic University dismissed Wanko. (ld.,-r 35.) Wanko filed a

complaint in this Court in December 2008, alleging six causes of action and naming as

defendants Catholic University; University President Rev. David M. O'Connell; Vice-

Provost George Carvey; deans Randall Ott and Vyt Guerackus; and professors Judith

Meany, Suzanne Reatig, and Patrick Saavedra. Wanko also claimed losses exceeding one

million dollars. (ld.,-r 40.)

STANDARD OF REVIEW

The defendants move to dismiss Wanko's complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) (see generally Def.'s Mot. to Dismiss [Dkt. #5]), contending it

fails to state a claim upon which the Court can grant relief. A plaintiffs complaint need

only set forth a short and plain statement that gives defendants fair notice of the claim and

grounds upon which the complaint rests. Dave v. Lanier,

(D.D.C.

2009). In resolving a Rule 12(b)(6) motion, the Court must treat the complaint's factual

allegations as true and draw all reasonable inferences in the plaintiffs favor. Bell

Atlantic Corp. v. Twombly,

(2007). "While a complaint need not

contain detailed factual allegations, 'a plaintiffs obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions. '" King v. Pierce Assoc.,

Inc.,

(D.D.C. 2009) (quoting Bell Atlantic Corp.,

4 555). A complaint's '''factual allegations must be enough to raise a right to relief above

the speculative level.'"

(quoting Bell Atlantic Corp.,

) (internal

alterations omitted).

ANALYSIS

Wanko alleges five causes of action based on the allegedly discriminatory conduct

discussed above: (A) discrimination and retaliation under Title VI of the Civil Rights Act

of 1964, (B) breach of contract, (C) fraud, (D) intentional infliction of emotional distress,

and (E) negligence. In each case, he utterly fails to make the minimal showing necessary

to avoid dismissal. How so?

A. Title VI

Title VI of the Civil Rights Act of 1964 ("Title VI") prohibits federally assisted

programs, such as educational institutions receiving federal funds, from discriminating on

the basis of race, color, or national origin.! 42 U.S.C. § 2000d. Catholic University

receives federal funds and is thus subject to the requirements of Title VI. (See Compl. ,-r,-r

42-43; see also Def.'s Mem. in Support of Mot. to Dismiss [Dkt. #5-2] at 6-7 (failing to

contest that Title VI does not apply to Catholic University». However, because Title VI

applies only to programs that receive federal funding, the individual defendants cannot be

held liable for any Title VI violations. Therefore, any Title VI claim Wanko has raised

'Specifically, Title VI states that "[n]o person in the United States shall, on the ground ofrace, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program receiving Federal financial assistance." 42 U.S.c. § 2000d.

5 against the individual defendants must be and is dismissed. See, e.g., Shotz v. Plantation,

(lIth Cir. 1996); Buchanan v. Bolivar,

, 1356 (6th Cir.

1996); Silva v. St. Anne Catholic Sch.,

(D. Kan. 2009).

i. Discrimination Claim

Wanko seems to allege, albeit vaguely, that Catholic University intentionally

discriminated against him because of his race and national origin in violation of Title VI.

(Compl. ~ 45.) Indeed, Wanko merely alleges that defendants criticized his accent,

insulted him, criticized his proposal, failed to transfer credits, gave him failing grades,

and caused him to fail out of Catholic University. Wanko also seems to suggest that

wrongdoing is evinced by the defendants' notifying Wanko of a failing grade in a meeting

that was held off-campus and at 7 :00 p.m. (See Compl. ~ 31.)

Stated simply, Wanko has merely pled "labels and conclusions" and not a factual

basis sufficient to avoid dismissal. See King,

(internal quotation

omitted). He does not specify how he was criticized and insulted, when such criticisms

occurred, or their relationship, if any, to his failing classes or failing out of Catholic

University. Tellingly, Wanko also does not even allege that he complied with the

school's academic requirements or that, absent any alleged discrimination, he would have

had more academic success. Similarly, he alleges the dean did not transfer his credits, but

he does not allege that his credits were eligible for transfer or that the dean failed to

adhere to the school's policy or practice for transferring credits. He also does not offer

6 any evidence to support his broad allegations that the defendants conspired against him or

that the defendants set up a meeting intending to provoke him. Instead, Wanko provides

only conclusory inferences, which the facts in the complaint fail to support.

To say the least, discrimination can not be inferred from such a dearth of evidence.

See Chandamuri v. Georgetown Univ.,

(D.D.C. 2003) (noting that

even if the university's actions were unfair, there was no evidence upon which to

logically infer a discriminatory purpose). This is especially true in light of Wanko's

failure to allege that he complied with the University's academic standards. This Court

will not "second-guess an educational institution's application of its own academic

standards and procedures" absent evidence indicating the absence of a rational basis or

the presence of an illegal motive.

. Accordingly, the Court must and will dismiss

his discrimination claim.

ii. Retaliation Claim

Wanko also raises a retaliation claim against Catholic University based on its

failing to address his discrimination complaints, failing to evaluate him according to his

merit, and devising a scheme to flunk him out of the University. (CompI.,-r 46.) While

Title VI does not specifically prohibit retaliation, some judges in this district have

recognized that such a prohibition is implicit in Title VI's prohibition of intentional

discrimination. See Kimmel v. Gallaudet Univ., No. 07-797,

(D.D.C. Aug. 4, 2009) (analyzing, at length, whether Title VI contains an anti-retaliation

7 provision and concluding that it does); Chandamuri,

(same).

However, because Wanko has failed to plead sufficient facts suggesting Catholic

University retaliated against him, the Court need not decide this issue. The retaliation

claim, even if eventually viable under Title VI, must be dismissed "because his complaint

demonstrates that he will not be able to establish a causal connection between [the]

lodging his complaint ... and his sanction." See

.

B. Breach of Contract

Wanko also alleges, based on District of Columbia law, that the University and the

individual defendants violated a contract with him when they failed to provide him with

an education free from discrimination, failed to evaluate him based on his merit,

discriminated against him, and conspired to fail him. (Compi. ~~ 49-52.) While

Wanko's relationship with the University is "contractual in nature," Basch v. George

Washington Univ.,

(D.C. 1977), that relationship does not extend

beyond him and the University itself. See Manago v. District o/Columbia,

(D.C. 2007). Therefore, the individual defendants are not proper defendants for

Wanko's breach of contract claim and that claim will be dismissed as to them. See

Thus, this Court will only considers the merits of Wanko's breach of contract claim as it

pertains to Catholic University.

Unfortunately for Wanko, he does not make any allegation that the University

promised to provide anything him more than it was already obligated to provide him

8 under Title VI. Therefore, Wanko's breach of contract claim against Catholic University

fails, among other reasons, for want of consideration. See Di Lella v. Univ. ofDist. of

Columbia,

, 11 (D.D.C. 2008). In addition to an agreement as to all

material terms, and an intention of the parties to be bound, an enforceable contract also

requires a mutuality of obligation, which "exists when each party undertakes to do

something the party is otherwise under no legal obligation to do. A promise to perform a

pre-existing legal obligation does not create a mutuality of obligation and cannot give rise

to an enforceable contract." Id. (internal quotation and citation omitted).2 This Court,

therefore, must and will dismiss Wanko's breach of contract claim.

C. Fraud

Wanko also brings a cause of action for fraud based on the defendants' alleged

misrepresentations that they would evaluate him according to his merit and not

discriminate against him, (CompI. ,-r,-r 54-58), and that the grades and academic credits he

earned in Catholic University's engineering school and at the University of

California-Los Angeles would be transferred to Catholic University's architecture and

planning school, (id. ,-r,-r 26, 57). Wanko further alleges the defendants made these

2Wanko relies on Booker v. Grand Rapids Medical College, a case decided by the Supreme Court of Michigan in 1909, for his assertion that students paying tuition have "an implied understanding that [they] shall not be arbitrarily dismissed therefrom."

(Mi. 1909). This case, however, was decided well before Title VI was enacted and does thus not address Catholic University's pre-existing obligation, under Title VI, not to discriminate against Wanko. See Title VI of the Civil Rights Act of 1964,

Stat. 241 (enacted July 2, 1964).

9 misrepresentations with the intent that Wanko would rely on them by enrolling at Catholic

University. (Id. ~~ 59-60.)

District of Columbia law provides a cause of action for fraud for plaintiffs who

"make a prima facie showing of (1) a false representation, (2) in reference to a material

fact, (3) made with the knowledge of its falsity, (4) with intent to deceive, and (5) action

taken by the plaintiff in reliance upon representation, (6) which consequently resulted in

provable damages." Richards v. Duke Univ.,

(D.D.C. 2007)

(internal quotation omitted). Additionally, plaintiffs alleging fraud must comply with a

heightened pleading requirement. Specifically, federal rules require plaintiffs alleging

fraud to "state with particularity the circumstances constituting fraud or mistake." Fed. R.

Civ. P. 9(b). Plaintiffs must detail the fact misrepresented, the time, place, individuals

involved, and content of the misrepresentation, and what was retained or given up as a

result. United States ex reI. Williams v. Martin-Baker Aircraft Co., Ltd. (ex reI.

Williams),

(D.C. Cir. 2004). To say the least, Wanko has utterly

failed to meet this standard.

Wanko does not provide any of the necessary specifics, offering instead only

unsupported "nebulous[] alleg[ations]" to support his claim. See

(affirming dismissal of a fraud claim because misrepresentations were alleged

"nebulously" and because the plaintiff did not allege with particularity when the

representations were made). Indeed, Wanko provides no details of any alleged

10 statements. He does not provide dates for the alleged misrepresentations, making only

vague references to the Spring 2005 semester and the 2006 school year. (CompI. ~ 55.)

Wanko does not specify which defendants were involved in each misrepresentation and

does not explain their individual roles in the alleged fraud. (Id. ~~ 55-59); see ex reI.

Williams,

(noting the complaint fails the particularity requirement

because it "fails to identify with specificity who precisely was involved in the fraudulent

activity").

In essence, Wanko merely relies on Buccino v. Continental Assurance Co. to

support his claim.

(S.D.N.Y 1983). Although the District Court in

Buccino declined to dismiss a fraud complaint that was "not as precisely pleaded as it

should have been," and relied on information outside the complaint to provide the

specifics lacking in the complaint, this Court will not eviscerate the Federal Rules of Civil

Procedure's particularity requirement merely because another court-outside our Circuit,

in a footnote, absent support no less-was unwilling to dismiss a non-particularized fraud

complaint.

The bottom line is clear, Wanko's complaint here fails to "state with particularity"

the circumstances constituting fraud, see Fed. R. Civ. P. 9(b), and fails to give the

defendants sufficient information to answer his complaint. See ex reI. Williams,

. Thus, this count must also be dismissed.

11 D. Intentional Infliction of Emotional Distress

Next, Wanko brings a cause of action for intentional infliction of emotional

distress under District of Columbia law, alleging that the defendants' criticism of his

accent and proposal, change in his grade, and various other insults to him constitutes

"extreme and outrageous" conduct. (Compl. ~~ 63-65.) Intentional infliction of

emotional distress requires, however, among other elements, "extreme and outrageous

conduct," which is a "requirement [that] is not an easy one to meet." Ben-Kotel v.

Howard Univ.,

(D.D.C. 2001). "[A] defendant will be liable 'only

where the conduct has been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.'" Bernstein v. Fernandez,

(D.C. 1991) (quoting Restatement (Second) of Torts § 46 cmt. D (1965)). "The liability

clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions,

or other trivialities." King v. Kidd,

(D.C. 1994).

Defendants' alleged conduct in this case, if true, is not of such a nature that a

reasonable person would consider it to be "outrageous" or "beyond all possible bounds of

decency." Bernstein,

(internal quotation omitted); Allison, 209 F. Supp.

2d at 61-62 (finding a university's approving a plaintiff's failing grade, expelling her

from school, denying her readmission applications, and failing to acknowledge a

temporary disability does not constitute extreme and outrageous conduct); Kerrigan v.

12 Britches of George towne, Inc.,

(D.C. App. 1997) (finding that

targeting plaintiff for a sexual harassment investigation, manufacturing evidence against

him to establish a false sexual harassment claim, leaking information from the

investigation to other employees, and unjustifiably demoting him to promote a woman

does not constitute extreme and outrageous conduct); Manago,

(holding that a university's failing to provide an accommodation for an alleged disability,

refusing to allow a student to take a final exam, advising her to withdraw from the

program, and refusing to sign an application to certification examination do not constitute

extreme and outrageous conduct). Thus, having failed to plead facts that if believed

could support an intentional infliction of emotional distress claim, the Court must and will

dismiss this claim as well.

E. N egJigence

Finally, Wanko alleges that five of the individual defendants 3 were negligent in

failing to remedy alleged discrimination against him. (Compl. ~~ 67-69.) The plaintiff in

a negligence action must establish: (1) that the defendants owed him a duty of care, (2)

that the defendants breached that duty, and (3) that the breach proximately caused damage

to the plaintiff. District of Columbia v. Cooper,

(D.C. 1984). A

plaintiff s negligence claim "may not rest on mere conclusory assertions as to the

existence of any element of the claim, including duty." Jolevare v. Alpha Kappa Alpha

3Defendants O'Connell, Carvey, Ott, Guerackus, and Williams.

13 Sorority, Inc.,

(D.D.C. 2007) (internal quotation omitted). Wanko,

however, merely relies on unsubstantiated conclusory assertions to support his negligence

claim. It is not enough.

Wanko alleges vaguely that the defendants "owed Plaintiff a duty to ensure that he

was treated equally and not discriminated against as a student at Defendant Catholic

University," (CompI. ,-r 67). He does not, however, alleges any basis for this purported

duty, and this Court does not find one. Title VI cannot serve as a basis for any

individuals' duty, as the statute applies only to programs receiving federal funding. 42

U.S.C. § 2000d. As Wanko has failed to plead a legal basis for the duty supposedly owed

him by these defendants, his negligence claim must also be dismissed. See Allison, 209 F.

Supp. 2d at 61-62 (dismissing negligence claim because the plaintiff failed to articulate

the applicable standard of care or how defendants deviated from that standard).

CONCLUSION

F or all of the above reasons, the Court GRANTS the defendants' Motion to

Dismiss. An Order consistent with this conclusion accompanies this Memorandum

Opinion.

United States District Judge

14