UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NICODEME WANKO, Plaintiff,

v.

CATHOLIC UNIVERSITY OF AMERICA, DAVID M. O'CONNELL, Rev., President, GEORGE CARVEY, Vice-Provost, RANDALL OTT, Dean of School ofArchitecture and Planning, VYT GUERACKUS, Assistant Dean, TERRY WILLIAMS, Professor, School ofArchitecture 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 ofArchitecture and Planning, Defendants. ) ) ) ) ) Civil Case No. 08-2115 (RJL) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

# MEMORAND~ OPINION (September**~,** 2009) [# 5] Theplaintiff, Nicodeme Wanko ("Wanko"), alleges that Catholic University of America ("Catholic University" or "the University") and several individual faculty members discriminated againsthim. The defendants filed a Motionto Dismiss arguing Wanko failed to state a claim on which the Court can grantrelief. Afterreviewing 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). Inhis complaint, Wanko focuses on four events that occurred before his dismissal. First, Wanko alleges his instructors "discriminated" againsthim 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 preconceivedracial beliefs," and "creat[ed] an overall hostile learning environment" before eventually dropping him from the course. (Id.**~~** 18-21). As a result, Wanko complained ofrace and national origin discrimination to defendant Vyt Guerackus, the AssistantDean ofthe School ofArchitecture and Planning. (Id.**~~** 22-23.) Vyt Guerackus met with Wanko to discuss his complaints. (Id.**~** 24.) Wanko does not provide details ofthe 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 beingtaughtby DefendantPatrick Saavedra. (Id.**~~** 27-28.) Wanko does notplead details ofhis academic performance, only that he failed the course. (Id.) Wanko alleges Saavedramet withhim at the end ofthe semesterto inform him ofhis failing grade. (Id.

2**~~** 29-30.) Wanko broadly alleges Saavedra scheduledthis meeting, which was held off campus at 7:00 p.m., "expect[ing] to provoke an uncontrolled reaction from Plaintiffthat could be recorded and subsequently used for Plaintiffs disciplinary expulsion." (Id.**~** 31.) Wanko however does not elaborate onthis assumption, contendthat the meeting was recorded, or even assert that meetings were generally held at a differenttime 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 ofthe possibilitythat his grade would be changed, despite his meeting with a member ofthe administration few times each semester. (Id.**~** 34.) Wanko also alleges his grade was changed at atime when he was no longer able to receive a tuitionrefund for the 2006 spring semester. (Id.**~** 33.) Wanko further alleges that Williams, the professor ofthe 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 ofhis discrimination complaints. (Id.**~** 25.) In support ofthis allegation, Wanko asserts thatwhile Catholic University scheduled a meeting to discuss his discrimination allegations, the University did nottake any other action in response to his complaints. (Id.**~** 24.) Wanko also points outthatthe dean allegedly did nottransfer academic credits to Catholic University's architecture school that Wanko had either earned in Catholic

3University's engineering school or at the University ofCalifomia-LosAngeles. (ld. 

### ,-r 26.) In March 2006, Catholic University dismissed Wanko. 

### (ld.,-r 35.) Wanko filed a complaint in this Court in December2008, alleging six causes ofaction and naming as defendants Catholic University; University President Rev. DavidM. O'Connell; ViceProvost George Carvey; deans Randall Ott and Vyt Guerackus; andprofessors 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 complaintpursuantto 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 statementthat gives defendants fair notice ofthe claim and grounds upon which the complaintrests. Dave v. Lanier, 606 F. Supp. 2d 45,48 (D.D.C. 2009). In resolving a Rule 12(b)(6) motion, the Court must treatthe complaint's factual allegations as true and draw all reasonable inferences in the plaintiffs favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007). "While a complaintneed not contain detailed factual allegations, 'aplaintiffs obligationto provide the grounds ofhis entitlementto reliefrequires more than labels and conclusions.'" Kingv. PierceAssoc., Inc., 601 F. Supp. 2d 245,247 (D.D.C. 2009) (quotingBellAtlantic Corp., 550 U.S. at

4555). A complaint's '''factual allegations must be enough to raise a right to reliefabove the speculative level.'" Id. (quotingBellAtlantic Corp., 550 U.S. at 555) (internal alterations omitted). ANALYSIS Wanko alleges five causes ofactionbased on the allegedly discriminatory conduct discussed above: (A) discrimination and retaliation under Title VI ofthe Civil Rights Act of 1964, (B) breach ofcontract, (C) fraud, (D) intentional infliction ofemotional 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 ofthe Civil Rights Act of 1964 ("Title VI") prohibits federally assisted programs, such as educational institutions receiving federal funds, from discriminating on the basis ofrace, color, ornational origin.! 42 U.S.C. 

### §2000d. Catholic University receives federal funds and is thus subjectto the requirements ofTitle VI. (See Compl. ,-r,-r 42-43; see also Def.'sMem. in Support ofMot. to Dismiss [Dkt. #5-2] at 6-7 (failing to contestthat Title VI does not apply to Catholic University». However, because Title VI applies only to programs thatreceive federal funding, the individual defendants cannotbe 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, onthe ground ofrace, color, or national origin, be excluded from participation in, be denied benefits of, orbe subjected to discrimination under anyprogram receiving Federal financial assistance." 42 U.S.c. §2000d.

5against the individual defendants mustbe and is dismissed. See, e.g., Shotz v. Plantation, 344 F.3d 1161, 1169 (lIth Cir. 1996);Buchanan v. Bolivar, 99 F.3d 1352, 1356 (6th Cir. 1996); Silva v. St. Anne Catholic Sch., 595 F. Supp. 2d 1171, 1179 (D. Kan. 2009). i. Discrimination Claim Wanko seems to allege, albeit vaguely, that Catholic University intentionally discriminated against him because ofhis race and national origin in violation ofTitle VI. (Compl.**~** 45.) Indeed, Wanko merely alleges that defendants criticizedhis accent, insulted him, criticized his proposal, failed to transfer credits, gave him failing grades, and causedhim to fail out ofCatholic University. Wanko also seems to suggestthat wrongdoing is evincedby the defendants' notifying Wanko ofa 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 sufficientto avoid dismissal. See King, 601 F. Supp. 2d at 247 (internal quotation omitted). He does not specify howhe was criticized and insulted, when such criticisms occurred, or theirrelationship, ifany, to his failing classes or failing out ofCatholic 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 orpractice for transferring credits. He also does not offer

6any evidence to support his broad allegations that the defendants conspired against him or thatthe defendants setup a meeting intending to provoke him. Instead, Wanko provides only conclusory inferences, whichthe facts in the complaint fail to support. To say the least, discrimination can not be inferred from such a dearth ofevidence. See Chandamuri v. Georgetown Univ., 274 F. Supp. 2d 71, 79 (D.D.C. 2003) (noting that

even ifthe university's actions were unfair, there was no evidence upon which to logically infer a discriminatorypurpose). This is especiallytrue in light ofWanko's failure to allege that he complied with the University's academic standards. This Court will not "second-guess an educational institution's application ofits own academic standards and procedures" absent evidence indicatingthe absence ofa rational basis or the presence ofan illegal motive. Id. at 80. Accordingly, the Courtmust 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 ofthe University. (CompI.,-r 46.) While Title VI does not specificallyprohibitretaliation, somejudges in this districthave recognized that such a prohibition is implicit in Title VI's prohibition ofintentional discrimination. See Kimmel v. Gallaudet Univ., No. 07-797, 2009 WL 2386175, *5 (D.D.C. Aug. 4, 2009) (analyzing, at length, whetherTitle VI contains an anti-retaliation

7provision and concluding that it does); Chandamuri, 274 F. Supp. 2d at 81-83 (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 ifeventually viableunder Title VI, mustbe dismissed "becausehis complaint demonstrates that he will notbe able to establish a causal connectionbetween [the] lodging his complaint

... and his sanction." See id. at 84. B. Breach ofContract Wanko also alleges, based on District ofColumbia law, that the University and the individual defendants violated a contract with him whenthey 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., 370 A.2d 1364, 1366 (D.C. 1977), thatrelationship does not extend beyond him and the University itself. See Manago v. Districto/Columbia, 934 A.2d 925, 926-27 (D.C. 2007). Therefore, the individual defendants are notproper defendants for Wanko's breach ofcontract claim and that claim will be dismissed as to them. See id. Thus, this Court will only considers the merits ofWanko's breach ofcontract 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 obligatedto provide him

8under Title VI. Therefore, Wanko's breach ofcontract claim against Catholic University fails, among otherreasons, for want ofconsideration. See DiLella v. Univ. of Dist. of Columbia, 570 F. Supp. 2d 1, 11 (D.D.C. 2008). In addition to an agreement as to all material terms, and an intention ofthe parties to be bound, an enforceable contract also requires a mutuality ofobligation, which "exists when eachparty undertakes to do somethingthe party is otherwise under no legal obligation to do. A promise to perform a pre-existing legal obligation does not create a mutuality ofobligation 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 ofcontract claim. 

### C. Fraud Wanko also brings a cause ofaction 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 CatholicUniversity'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 onBookerv. GrandRapidsMedical College, a case decided by the Supreme Court ofMichigan in 1909, for his assertion that students paying tuition have "animplied understanding that [they] shall not be arbitrarily dismissed therefrom." 156 Mich. 95,99-100 (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, notto discriminate against Wanko. See Title VI ofthe Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (enacted July 2, 1964). 9misrepresentations withthe intentthat Wanko would rely onthem by enrolling at Catholic University. (Id.**~~** 59-60.) District ofColumbia lawprovides a cause ofaction for fraud for plaintiffs who "make aprima facie showing of(1) a false representation, (2) in reference to a material fact, (3) madewith the knowledge ofits falsity, (4) with intentto deceive, and (5) action taken by the plaintiffin reliance upon representation, (6) which consequentlyresulted in provable damages." Richards v. Duke Univ., 480 F. Supp. 2d 222,237 (D.D.C. 2007) (internal quotation omitted). Additionally, plaintiffs alleging fraud must comply with a heightenedpleading requirement. Specifically, federal rules requireplaintiffs alleging fraud to "statewithparticularitythe circumstances constituting fraud ormistake." Fed. R. Civ. P. 9(b). Plaintiffs must detail the fact misrepresented, the time, place, individuals involved, and content ofthe misrepresentation, and whatwas retained or given up as a result. UnitedStates exreI. Williams v. Martin-BakerAircraft Co., Ltd. (ex reI. Williams), 389 F.3d 1251, 1256 (D.C. Cir. 2004). To saythe least, Wanko has utterly failed to meetthis standard. Wanko does notprovide any ofthe necessary specifics, offering instead only unsupported "nebulous[] alleg[ations]" to supporthis claim. See id. at 1256-57 (affirming dismissal ofa fraud claim because misrepresentations were alleged "nebulously" and because the plaintiffdid not allege with particularity whenthe representations were made). Indeed, Wanko provides no details ofany alleged

10statements. He does notprovide 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, 389 F.3d at 1257 (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 onBuccino v. ContinentalAssurance Co. to supporthis claim. 578 F. Supp. 1518 (S.D.N.Y 1983). Although the District Court in Buccino declined to dismiss a fraud complaintthat was "not as preciselypleaded as it should have been," and relied on information outside the complaintto providethe specifics lacking in the complaint, this Courtwill not eviscerate the Federal Rules ofCivil Procedure'sparticularityrequirement merely because another court-outside our Circuit, in a footnote, absent support no less-wasunwilling to dismiss a non-particularized fraud complaint. The bottom line is clear, Wanko's complainthere fails to "statewithparticularity" 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, 389 F.3d at 1256. Thus, this countmust also be dismissed.

11

### D. Intentional Infliction ofEmotional Distress Next, Wanko brings a cause ofaction for intentional infliction ofemotional distress under District ofColumbia law, alleging thatthe defendants' criticism ofhis 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-Kotelv. Howard Univ., 156 F. Supp. 2d 8, 14 (D.D.C. 2001). "[A] defendantwill be liable 'only where the conducthas been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) ofTorts §46 cmt. D (1965)). "The liability clearly does not extendto mere insults, indignities, threats, annoyances, petty oppressions,

or othertrivialities." Kingv. Kidd, 640 A.2d 656,668 (D.C. 1994). Defendants' alleged conduct in this case, iftrue, is not ofsuch a nature that a reasonable person would consider it to be "outrageous" or "beyond all possible bounds of decency." Bernstein, 649 A.2d at 1075 (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 herreadmission applications, and failing to acknowledge a temporary disability does not constitute extreme and outrageous conduct); Kerrigan v.

12Britches of Georgetowne, Inc., 705 A.2d 624,628 (D.C. App. 1997) (finding that targeting plaintifffor 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, 934 A.2d at 925,928 (holding that a university's failing to provide an accommodation for an alleged disability, refusing to allow a studentto take a final exam, advising herto 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 ifbelieved could support an intentional infliction ofemotional distress claim, the Courtmust and will dismiss this claim as well. E. NegJigence Finally, Wanko alleges that five ofthe individual defendants3 were negligent in failing to remedy alleged discrimination against him. (Compl.**~~** 67-69.) Theplaintiffin

a negligence action must establish: (1) that the defendants owed him a duty ofcare, (2) that the defendants breachedthat duty, and (3) that the breachproximately caused damage to the plaintiff. Districtof Columbia v. Cooper, 483 A.2d 317,321 (D.C. 1984). A plaintiffs negligence claim "may notrest on mere conclusory assertions as to the existence ofany element ofthe claim, including duty." Jolevare v. AlphaKappaAlpha

3Defendants O'Connell, Carvey, Ott, Guerackus, and Williams. 13

### Sorority, Inc., 521 F. Supp. 2d 1, 15 (D.D.C. 2007) (internal quotation omitted). Wanko, however, merelyrelies on unsubstantiated conclusory assertions to supporthis negligence claim. It is not enough. Wanko alleges vaguelythatthe defendants "owedPlaintiffa duty to ensure thathe

was treated equally and not discriminated against as a student atDefendant Catholic University," (CompI. 

### ,-r 67). He does not, however, alleges any basis for this purported duty, andthis 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 toplead a legal basis for the duty supposedly owed him bythese defendants, his negligence claim must also be dismissed. 

### SeeAllison, 209 F. Supp. 2d at 61-62 (dismissing negligence claim because theplaintifffailed to articulate the applicable standard ofcare orhow defendants deviated from that standard). CONCLUSION For all ofthe above reasons, the Court GRANTS the defendants' Motionto Dismiss. An Order consistentwith this conclusion accompanies this Memorandum Opinion.

United States DistrictJudge

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