that plaintiff was granted priority consideration over others with shorter periods of service since their last sabbatical nor any relevant explanation of the sabbatical review process that would explain selection on the basis of merit over length of service. Consequently, plaintiff presents a genuine dispute of material fact regarding whether defendant's stated rationale for denying his application for sabbatical leave was mere pretext. Defendant's motion to dismiss this claim must therefore be denied.
Finally, defendant moves for dismissal of plaintiff's claims of retaliation. Although the substance of these claims are not completely clear from his complaint, it appears that plaintiff asserts that defendant retaliated against him for three different actions: 1. his refusal to help discharge Dr. Kucera, a white male, in October, 1986; 2. his opposition to granting tenure to an allegedly unqualified black woman when he was a member of the Promotions Committee in January through April of 1987; and 3. his testimony in Bachman v. District of Columbia, 86-0074 (D.D.C. filed Jan. 13, 1986), in August, 1988. These acts, he argues, resulted in several adverse actions against him: 1. his replacement on the Promotions Committee for the academic year beginning in August, 1987; 2. the rejections of his applications for sabbatical leave; and 3. his poor evaluation for the 1986-87 academic year.
Defendant first argues that this cause of action should be dismissed because the alleged acts of retaliation occurred before plaintiff filed his charge of discrimination with the EEOC. However, Title VII's protects from retaliation a far broader scope of activities than the simple filing of an EEOC charge. Section 704(a) of Title VII covers those who "oppose any practice made an unlawful employment practice by this title" and those who "charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing under this title." § 704(a). Thus Title VII's protection would extend to retaliation stemming from plaintiff's testimony in federal court and his informal opposition to allegedly discriminatory employment practices of defendant. See, e.g., Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109, 115 (D.C. Cir. 1980).
However, plaintiff's failure to file his EEOC charge until March 24, 1989, raises problems of timeliness. As noted above, plaintiff failed to file his charge within the period required to challenge his 1986-87 evaluation. Moreover, the charge was filed in insufficient time to challenge his replacement on the Promotions Committee in August, 1987, which occurred more than 18 months before the filing of the charge. Thus, only plaintiff's claim that he was denied sabbatical leave during the 1989-90 academic year on the ground of retaliation may be considered.
As with plaintiff's claim of disparate treatment, the framework of McDonnell Douglas applies to claims of retaliation. McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C.Cir. 1984). Both parties again meet their initial burdens under this framework. Plaintiff proffers evidence that he was engaged in statutorily protected activity, for example, by testifying against defendant in a discrimination case; that he was qualified for a sabbatical; and that he applied and was rejected for a sabbatical. By doing so, plaintiff "establish[es] facts adequate to permit an inference of retaliatory motive," and therefore establishes a prima facie case. Id. at 790. Defendant also meets its initial burden by asserting that it rejected plaintiff's application because it was too verbose and confusing.
At the third stage, plaintiff also presents sufficient evidence of pretext to withstand a motion for summary judgment. As stated supra at Part IIIB, he proffers evidence of his 15 years of service without sabbatical leave, the Master Agreement provision that applicants for sabbatical leave with the longest period of service will be given priority consideration, and contends that those who received sabbaticals had served for a lesser period. Defendant proffers neither any evidence that plaintiff was granted priority consideration over others with shorter periods of service nor any relevant explanation of the sabbatical leave review process that would account for selection on the basis of merit over length of service. As a dispute of material fact exists regarding whether defendant's explanation for rejecting plaintiff's sabbatical leave application constitutes pretext, defendant's motion to dismiss this claim must be denied.
Accordingly, the Accompanying Order will grant defendant's motion to dismiss Count I of the complaint and will grant in part and deny in part defendant's motion for dismissal or, in the alternative, summary judgment on Count II of the complaint.
ORDER - May 3, 1990, Filed
For the reasons stated in an accompanying Memorandum, it is this 20 day of May, 1990, hereby
ORDERED: that the Motion of Defendant Trustees of the University of the District of Columbia to Dismiss Count I of the Complaint should be, and is hereby, GRANTED; and it is further
ORDERED: that defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, insofar as it relates to claims pertaining to the rejection of plaintiff's application for sabbatical leave, and discrimination and/or retaliation as alleged motives for the rejection, should be, and is hereby, DENIED without prejudice to defendant's renewing the substance of the motion (supported by additional evidence, if any) in the context of the pretrial conference scheduled in this matter; and it is further
ORDERED: that defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, insofar as it relates to the remaining claims in Count II should be, and is hereby, GRANTED.