WANKO v. BOARD OF TRUSTEES OF INDIANA UNIVERSITY et al

Filing 46

ORDER Granting in Part and Denying in Part 29 Motion to Dismiss - IUSD is dismissed as a party to this action. SEE ORDER. Signed by Judge Tanya Walton Pratt on 7/3/2017.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CATHERINE WANKO,
Plaintiff,
v.
BOARD OF TRUSTEES OF INDIANA
UNIVERSITY, and INDIANA UNIVERSITY
SCHOOL OF DENTISTRY,
Defendants.

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Case No. 1:16-cv-02789-TWP-DML

ENTRY ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) by Defendants Board of Trustees of Indiana University (“Trustees”) and
Indiana University School of Dentistry (“IUSD”) (collectively, “Defendants”). (Filing No. 29.)
After being dismissed from IUSD, Plaintiff Catherine Wanko (“Wanko”) filed an Amended
Complaint, alleging Defendants violated Title VI of the Civil Rights Act of 1964 (“Title VI”), 42
U.S.C. § 2000d-7. (Filing No. 28.) Defendants move the Court to dismiss Wanko’s Amended
Complaint for failure to state a claim. For the following reasons, the Court GRANTS in part and
DENIES in part Defendants’ Motion to Dismiss.
I. BACKGROUND
The following facts are undisputed. Wanko is African-American and a naturalized United
States citizen, originally from the Republic of Cameroon, Central Africa. In August 2014, s
enrolled as a dental student at IUSD. According to IUSD’s policies and procedures, dental students
must achieve a score of seventy percent (70%) or higher to pass a course. However, students who
score between sixty-five percent (65%) and sixty-nine point nine percent (69.9%) are granted the

opportunity to bring their grade back to the satisfactory level of seventy percent (70%). This
practice is based on IUSD’s “remediation” policy. Students who score below sixty-five percent
(65%) are not eligible to remediate a score. All scores earned, including remediated scores, are
used to compute a student’s cumulative grade point average (“GPA”). In order to be promoted to
the next semester and remain in good standing, a student must: 1) maintain a passing or incomplete
grade for each course the student is enrolled; 2) maintain a minimum cumulative 2.0 GPA, as well
as a semester GPA of 2.0; and 3) maintain acceptable ethical and professional behavior. According
to IUSD’s policies and procedures, a student may be placed on probation if the student fails to
remain in good standing.
During Wanko’s first year of dental school, she received unsatisfactory scores in two
courses—Single Tooth Indirect Restorations (“STI”) and Removable Prosthodontics (“RP”). In
STI, Wanko scored below a sixty-five percent (65%), therefore, she was not eligible to remediate
the class. Wanko’s RP score met the requirements for remediation and in the summer of 2015,
Wanko successfully remediated RP by scoring seventy-one percent (71%) on the course
examination. By the end of her first year, Wanko achieved a minimum cumulative GPA of 2.0.
Despite Wanko remediating the RP class and maintaining a 2.0 GPA, IUSD required that
she retake her entire first year curriculum. After repeating her first year curriculum, Wanko
successfully passed all but one of her courses—STI. Wanko scored a sixty-five percent (65%) in
STI, but IUSD did not offer her the opportunity to remediate. Instead, the Dental Student Progress
Committee decided to dismiss Wanko from IUSD. Wanko appealed to the Faculty Counsel
Appeals Committee, as well as to the Dean, who both affirmed the decision to dismiss her from
dental school.

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On February 6, 2017, Wanko filed an Amended Complaint, alleging Defendants
discriminated against her on the basis of her race and national origin in violation of Title VI.
(Filing No. 28). Wanko specifically argues that Defendants forced her to retake her entire first
year curriculum and dismissed her from IUSD without offering remediation or probation, because
of her race and national origin. Defendants move to dismiss Wanko’s Amended Complaint for
failure to state a claim. (Filing No. 29).
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss a
complaint that fails to “state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
When deciding a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the
light most favorable to the plaintiff, accepts all factual allegations as true, and draws all reasonable
inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
However, courts “are not obliged to accept as true legal conclusions or unsupported conclusions
of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
While a complaint need not include detailed factual allegations, a plaintiff has the
obligation to provide the factual grounds supporting his entitlement to relief; and neither bare legal
conclusions nor a formulaic recitation of the elements of a cause of action will suffice in meeting
this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated differently, the
complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker
v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be
facially plausible, the complaint must allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).

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III. DISCUSSION
Defendants move to dismiss Wanko’s Amended Complaint for failure to state a claim
under Title VI. Title VI provides: “[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d.
To establish a prima facie case of discrimination under Title VI, Wanko must demonstrate
that she: (1) is a member of a protected class; (2) met the school’s legitimate educational
expectations; (3) suffered an adverse educational action; and (4) received worse treatment than
that of similarly situated students not in the protected class. Brewer v. Board of Trustees of the
University of Illinois, 479 F.3d 908, 921 (7th Cir. 2007) (citations omitted).
Defendants do not dispute that Wanko is a member of a protected class, or that she suffered
an adverse educational action. However, Defendants contend that Wanko did not perform
satisfactorily at IUSD to meet their legitimate expectations, and there is no similarly situated
student outside of the protected class who performed unsatisfactorily once in the RP course and
twice in the STI course.
A.

Similarly Situated Students
The Court begins its analysis with the parties’ arguments regarding similarly situated

students. Wanko’s identifies three groups of students as similarly situated. The first group consists
of ten to twelve Caucasian students who remediated RP during their first year. The second group
consists of two to three Caucasian students who failed STI and were ineligible to remediate, but
were promoted to second year on probation. The final group includes ten to twelve Caucasian
students that scored less than a sixty-five percent (65%) in Systems Approach to Biomedical

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Sciences and were allowed to remediate. Wanko notes that the students in groups one and two
both advanced to their second year at IUSD and the students in group three were afforded the
opportunity to remediate the course, despite IUSD’s policies and procedures. Defendants respond
that none of the groups are similarly situated to Wanko because none of the groups include a person
that received unsatisfactory scores in both STI and RP during their first year, as well as an
unsatisfactory score in STI the following year.
The Court finds that Wanko has sufficiently identified a similarly situated group to support
her claim of discrimination based on having to retake her first year curriculum. The Court notes,
after Wanko remediated RP, she appears to be similarly situated to the second group—the two to
three Caucasian students who also failed STI but who, unlike Wanko, were promoted to their
second year on probation.
With respect to Wanko’s claim that her dismissal from IUSD was based on discrimination,
the Court concludes that Wanko failed to plead a similarly situated individual who twice performed
unsatisfactorily in a first year course at IUSD. There is no precise formula to determine whether
an individual is similarly situated to comparators, however, to demonstrate that another student is
similarly situated, a plaintiff must identify “someone who is directly comparable to her in all
material respects.” Patterson v. Avery Dennison Corporation, 281 F.3d 676 (7th Cir. 2002);
McDonald v. Village of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). Wanko has not made such
an identification.
B.

Failure to Meet the School’s Legitimate Educational Expectations
Defendants next assert that Wanko failed to meet IUSD’s legitimate educational

expectations. In response, Wanko argues that she met this element of Title VI at the time of her
dismissal because—after retaking her first year curriculum and despite performing unsatisfactorily

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in STI twice—she still maintained a 2.0 cumulative GPA and passed all of her other courses,
including RP. Wanko argues that the Court should not consider her unsatisfactory performance in
STI when determining whether she failed to meet the school’s legitimate educational expectations.
She notes, similar to her situation, there were ten to eleven Caucasian students that performed
unsatisfactorily in RP during their first year and another two to three Caucasian students who
performed unsatisfactorily in STI. Unlike Wanko, the two or three Caucasian students were placed
on probation and promoted to their second year. Wanko contends that by successfully retaking her
first year curriculum, she met and exceeded ISUD’s “educational expectations” because she did
not have to remediate removable prosthodontics, like the 10-12 Caucasian student in her first year.
With respect to Wanko’s claim that Defendants forced her to retake the entire first year
curriculum in violation of Title VI, the Court finds instructive IUSD’s promotion of two or three
students who were ineligible to remediate STI during their first year. These two or three Caucasian
students were promoted to second year and did not have to retake the entire first year of courses.
Because the promoted Caucasian students appear to have met IUSD’s legitimate educational
expectations, despite performing unsatisfactorily in STI, the Court concludes that Wanko has pled
sufficient facts to establish that she also met IUSD’s legitimate expectations after remediating RP.
Wanko’s arguments regarding the performance of other students is without merit on the
issue of whether Wanko met IUSD’s legitimate educational expectations after retaking her first
year curriculum. There is no dispute that IUSD’s policies and procedures require students to score
seventy percent (70%) or higher to pass a course. The policies and procedures also make clear
that in order for a student to move on to the next semester in good standing, the student must pass
all courses. Wanko concedes that she performed unsatisfactorily in STI and RP during her first
year, and again performed unsatisfactorily in STI the following year. Wanko does not point the

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Court to other students who remained at IUSD after twice performing unsatisfactorily in a first
year course.

Accordingly, based on Wanko’s academic record and IUSD’s policies and

procedures, the Court finds that Wanko did not meet IUSD’s legitimate educational expectations
at the time of her dismissal. Additionally, to the extent that Wanko asserts her dismissal violated
IUSD’s policies and procedures, the Court notes “Title VI does not create liability for any decision
that violates a University policy, only for decisions that violate Title VI’s policy against racism.”
Brewer, 479 F.3d at 922 (citations omitted).
C.

IUSD as a Party
As a final matter, Defendants note correctly that the Trustees of Indiana University serve

as the governing body for Indiana University, including the School of Dentistry. As such, and
pursuant to Indiana Code § 21-27-4-3, the Board of Trustees is the entity which may sue and be
sued. Accordingly, IUSD is dismissed as a party to this action. The Clerk is directed to show
IUSD as terminated and removed from the caption.
IV. CONCLUSION
A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will
prevail on the merits but instead whether the claimant has properly stated a claim. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). For the reasons stated above, the Court GRANTS in part and
DENIES in part Defendants’ Motion to Dismiss. (Filing No. 29.) The Court finds Wanko
adequately states a Title VI claim that Defendants acted with discrimination when forcing her to
retake her entire first year curriculum when similarly situated students did not, and this claim has
survived the initial hurdle of a motion to dismiss. The Court concludes that the Amended
Complaint fails to sufficiently plead that Wanko’s dismissal from IUSD resulted from Title VI

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discrimination, accordingly, this claim is dismissed. In addition, IUSD is dismissed as a party to
this action.
SO ORDERED.
Date: 7/3/2017

DISTRIBUTION:
Andrew Nyombi
EMEJURU & NYOMBI LLC
[e-mail]
Clifton A. Dennis
SEVERNS & STINSON
[e-mail]
Ikechukwu Emejuru
EMEJURU & NYOMBI LLC
[e-mail]
Cory Stephen Brundage
CORY BRUNDAGE, LLC
[e-mail]

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