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 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. 

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) Civil Case No. 08-2115 (RJL) 

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MEMORAND~ OPINION 

(September ~, 2009) [# 5] 

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. 

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~~ 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 

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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; ViceProvost 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, 606 F. Supp. 2d 45,48 (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, 550 U.S. 544, 572 (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., 601 F. Supp. 2d 245,247 (D.D.C. 2009) (quoting Bell Atlantic Corp., 550 U.S. at 

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

the speculative level.'" Id. (quoting Bell Atlantic Corp., 550 U.S. at 555) (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. 

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against the individual defendants must be 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 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, 601 F. Supp. 2d at 247 (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 

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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., 274 F. Supp. 2d 71, 79 (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. Id. at 80. 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, 2009 WL 2386175, *5 

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

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provision 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 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 id. at 84. 

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., 370 A.2d 1364, 1366 (D.C. 1977), that relationship does not extend 

beyond him and the University itself. See Manago v. District o/Columbia, 934 A.2d 925, 

926-27 (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 id. 

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 

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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. 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 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." 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, not to discriminate against 

Wanko. See Title VI of the Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (enacted July 

2, 1964). 

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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., 480 F. Supp. 2d 222,237 (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), 389 F.3d 1251, 1256 (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 id. at 1256-57 

(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 

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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, 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 on Buccino v. Continental Assurance Co. to 

support his claim. 578 F. Supp. 1518 (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, 389 F.3d 

at 1256. Thus, this count must also be dismissed. 

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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., 156 F. Supp. 2d 8, 14 (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, 649 A.2d 1064, 1075 

(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, 640 A.2d 656,668 (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, 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 her readmission applications, and failing to acknowledge a 

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

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Britches of George towne, Inc., 705 A.2d 624,628 (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, 934 A.2d at 925,928 

(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 defendants3 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, 483 A.2d 317,321 (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. 

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Sorority, Inc., 521 F. Supp. 2d 1, 15 (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 

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