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TRUELOVE v. TRUSTEES OF THE UNIV. OF THE DIST. OF

May 2, 1990

Alan J. TRUELOVE, Plaintiff,
v.
TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Defendant


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE.

 In this action, plaintiff, suing pro se, charges that defendant has discriminated against him on the basis of race and national origin. *fn1" Plaintiff, a white male from England, is a full professor at the University of the District of Columbia. He asserts that defendant failed to evaluate him in a manner comparable to similarly situated black or Arab faculty members and that defendant has retaliated against him for asserting his rights to be free from discrimination. Defendant has filed two motions that are now pending: The first, filed on December 15, 1989, moves for dismissal of Count I of plaintiff's complaint, which charges that defendant's actions violate 42 U.S.C. § 1981. The second, filed on January 22, 1990, moves for dismissal or, alternatively, summary judgment on Count II of plaintiff's complaint, which charges that defendant's actions violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons stated in this Memorandum, an accompanying Order will grant defendant's motion to dismiss Count I of plaintiff's complaint and grant in part and deny in part defendant's motion to dismiss or, alternatively, for summary judgment on Count II of plaintiff's complaint.

 I.

 A.

 The following facts are not in dispute. Plaintiff is a full professor of the Computer Information and Systems Science Department ("CISS Department") of defendant's College of Business and Public Management. Complaint para. 7; Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (Jan. 22, 1990) [hereinafter "Motion to Dismiss II"] at 4. Each year, an evaluation of all members of the CISS Department is conducted by its Department Evaluation and Promotion Committee ("Evaluation Committee") and the Department Chair. Complaint para. 12; Motion to Dismiss II at 5. For the 1986-87 academic year, the Evaluation Committee gave plaintiff an overall rating of "Unsatisfactory." Complaint para. 30; Motion to Dismiss II at 6. Plaintiff signed the evaluation form on April 6, 1988, indicating that plaintiff had notice of the "unsatisfactory" rating. Defendant's Motion to Dismiss, Exh. D at 3. Plaintiff did not directly appeal this evaluation according to the provisions established by the Third Master Agreement which governs relationships between the University and the faculty. See Motion to Dismiss II, Exh. C. at 29-31; Plaintiff's Amended Opposition at 5. Nor did he file a formal grievance with defendant regarding the evaluation process for more than 18 months. Plaintiff's Amended Opposition to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Apr. 10, 1990) [hereinafter "Amended Opposition II"] at 6. However, he did complain orally and in writing to members of defendant's administration. Complaint para. 32. Subsequently, on January 30, 1989, plaintiff received a letter from Rafael Cortada, the president of the university, stating that

 
you are to meet with your Dean to develop a specific plan to correct [deficiencies resulting in the "Unsatisfactory" evaluation]. If your evaluation for the 1988-89 academic year is "unsatisfactory", appropriate adverse action will be recommended under the provisions of the Master Agreement.

 Complaint, Exh. P-3. No evaluation was conducted for the 1987-88 academic year. However, plaintiff received a satisfactory rating for the 1988-89 academic year. See Amended Opposition II at 3 n. 1.

 In addition to receiving an "unsatisfactory" rating for the 1986-87 academic year, plaintiff has repeatedly been denied sabbatical leaves by the University. Complaint para. 41; Motion to Dismiss II at 8, Exh. G. Plaintiff applied for sabbatical leaves for the past four years, most recently for a semester of the 1989-90 academic year. Complaint para. 41; Motion to Dismiss II at 8, Exh. G. However, all his applications were rejected by the University-Wide Sabbatical Leave Review Committee ("Sabbatical Leave Committee"). Complaint para. 41; Motion to Dismiss II at 8.

 Plaintiff contends that both the "unsatisfactory" rating by the Evaluation Committee and the rejections of his applications for sabbatical leave by the Sabbatical Leave Committee were the product of discrimination on the basis of race and national origin by black and Arab faculty members. Plaintiff asserts, moreover, that these actions were also the product of unlawful retaliation resulting from his testimony as a witness in another discrimination suit against defendant, Bachman v. District of Columbia, 777 F. Supp. 990 (D.D.C., 1991), his opposition to granting tenure to an allegedly unqualified black professor, and his opposition to the dismissal for discriminatory reasons of a white professor. Complaint paras. 37, 39, 40, 55. Defendant disputes these assertions, claiming that plaintiff's evaluation and the rejections of his applications for sabbatical leave were based on nondiscriminatory reasons.

 II.

 Defendant's first motion to dismiss, filed on December 15, 1989, asserts that Count I of the complaint, alleging violations of 42 U.S.C. § 1981, must be dismissed. According to defendant, plaintiff's § 1981 claims fail because plaintiff asserts discrimination neither in the making of plaintiff's employment contract nor in its enforcement in the judicial process. Thus, defendant argues, the claims do not fall within the scope of § 1981 protection elucidated by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). In that case, the Court held that although § 1981 applies to the formation of employment contracts, it does not extend to problems that may arise from the conditions of continuing employment. Plaintiff did not oppose defendant's motion to dismiss this Count. Accordingly, the motion will be treated as conceded and the accompanying Order will dismiss Count I of the complaint.

 III.

 Also pending is defendant's motion to dismiss, or, in the alternative, for summary judgment on Count II of plaintiff's complaint, filed on January 22, 1990. Count II, which asserts that defendant's actions violated Title VII, actually presents three different claims: 1. that the 1986-87 evaluation was conducted in a discriminatory manner; 2. that the denials of plaintiff's applications for sabbatical leave were discriminatory; and 3. that adverse actions against plaintiff ...


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