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SAUNDERS v. GEORGE WASHINGTON UNIV.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 20, 1991

DELORIS M. SAUNDERS, Plaintiff,
v.
THE GEORGE WASHINGTON UNIVERSITY, Defendant

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 In this action, Dr. Deloris Saunders, an associate professor at defendant George Washington University (GWU), sues the university for racial discrimination and retaliation in violation of 42 U.S.C. § 1981 and the D.C. Human Rights Act Statute. Currently before the Court are Saunders' motion for a preliminary injunction and defendant's motion for summary judgment. A hearing on both motions was held on May 31, 1991. It was not, however, possible at that time to resolve all the complicated factual and legal questions raised by them. Accordingly, a temporary restraining order was issued. See Order of May 31, 1991; see also Order of June 10, 1991 (extending the TRO for ten additional days). The parties have since submitted additional briefing, and an evidentiary hearing was held on June 17 and 18, 1991. Accordingly, the motions are now ripe for resolution.

 For reasons to be stated in a forthcoming memorandum, the accompanying order will grant GWU's motion for summary judgment in part and deny it in part, and for the reasons stated below and to be elaborated in supplemental findings of fact, that order will also grant Saunders' motion for a preliminary injunction.

 I.

 The standard for granting preliminary injunctive relief is well-settled:

 

To determine whether an injunction is appropriate the District Court should balance (1) the likelihood of the plaintiff's success on the merits, (2) the threat of irreparable injury to the plaintiff in the absence of an injunction, (3) the possibility of substantial harm to other interested parties from a grant of injunctive relief, and (4) the interests of the public.

 Wagner v. Taylor, 266 U.S. App. D.C. 402, 836 F.2d 566, 575 (D.C. Cir. 1987) (footnote omitted); see generally Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958).

 II.

 As will be discussed in the forthcoming memorandum on GWU's motion for summary judgment, Saunders does not state claims under § 1981 for retaliation or for failure to renew her contract. She does, however, raise a genuine issue as to all other claims in her complaint, and there is a substantial likelihood that she will succeed on several of those claims.

 To prove that a failure to promote violates § 1981, a plaintiff must prove, first, that the promotion would have created a "new and distinct relation" between herself and GWU and, second, that she was denied that promotion due to racial animus. See generally Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). Such animus may be proven either directly or through the scheme of circumstantial proof of discrimination developed in the McDonnell Douglas Burdine line of cases. See id. at 2377.

 Saunders has shown a substantial likelihood that she will prove that the Department's decision to defer consideration of her requests for renewal in the fall of 1989 and the spring of 1989 violated § 1981. First, the request for conversion was essentially a request for promotion from a contract position to a tenure-accruing one. That promotion would have created a "new and distinct relation" between the university and Saunders by ensuring her, though not absolutely guaranteeing, tenure and lifetime employment with the university. *fn1" See Patterson, 109 S. Ct. at 2377. Second, according to the evidence currently in the record, Saunders was both eligible and qualified for conversion to tenure track, and there is no credible evidence suggesting that she lacks integrity. *fn2" Third, Saunders is also likely to prove at trial that the justifications offered -- that the enrollment in the program was insufficient and that Dean Leonard should be consulted due to his expertise in policy studies -- were pretexts. *fn3" Finally, evidence in the record suggests discriminatory patterns and motives in some members of the Department. *fn4"

 Because of this evidence of discrimination, Saunders is likely, though not quite so likely, to prove that the Department violated § 1981 in denying her request for conversion in the fall of 1988. She is, however, substantially likely to prove that the justification offered in 1989 for denying her request -- that her publication record was inadequate -- was a pretext for discrimination. *fn5"

 Saunders is also substantially likely to prove that in 1989 members of the Department retaliated against her for filing this suit. In order to prove retaliation under the D.C. Human Rights Act Statute, a plaintiff must show (a) that she was engaged in a protected activity, (b) that the employer took adverse action, and (3) that there was a causal connection between the two. See, e.g., Goos v. Nat'l Ass'n of Realtors, 715 F. Supp. 2, 3 (D.D.C. 1989). Saunders has satisfied all three elements. First, she filed a lawsuit. Second, GWU denied her request for conversion. Third, members of the Department not only levelled serious and unfounded charges of academic dishonesty against her; one of them has also admitted that she would have voted for Saunders but for the filing of this suit. *fn6"

 Saunders is not, however, likely to succeed on her claim that she was improperly denied promotion. It appears likely that GWU will show that even if Saunders had been denied promotion to full professor due to racial animus or retaliatory motive, she would nonetheless not have been promoted because of her insufficient time in rank. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1787-88, 104 L. Ed. 2d 268 (1989). It is also unlikely that Saunders will prove that Vice-President French's decision in 1990 not to allow consideration of her request for conversion was motivated by either racial animus or retaliatory motive.

 III.

 Saunders has also shown a threat of irreparable injury absent injunctive relief. She has provided unrebutted evidence that the harm to her career and professional reputation from a interruption in service would be irreparable. As Dr. Cunningham explains, "university professors and administrators recruiting new faculty are busy people, and I think it unlikely that many would take the time necessary to become familiar with the facts surrounding any period of unemployment." Third Cunningham Affidavit para. 5. As a consequence, even if Saunders were to prevail on the merits, the fact that she had an interruption in her employment would "always cast a cloud, even if she [were] ultimately reinstated through judicial process." Thus, for example, "in a search process where two or more candidates have credentials of similar strength otherwise, a candidate with an unexplained career interruption is likely to be dropped from further consideration." Id. GWU responds that courts routinely reduce damage to reputation into dollar amounts. Everything about Saunders' life, however, suggests that damages would not compensate her for lost career opportunities. An educator since 1959, Saunders obviously does not teach merely to make money: Indeed, she transferred to GWU despite a cut in pay. She teaches instead because of the "tremendous personal satisfaction and joy" that she derives from teaching. Chalk v. U.S. District Court, Central District, 840 F.2d 701, 709 (9th Cir. 1988). Thus, if her employment and her career advancement were interrupted, Saunders would lose the opportunity to gain a satisfaction that cannot be adequately compensated by a damages award. See id. Accordingly, Saunders has shown that she will be irreparably injured absent preliminary injunctive relief.

  IV.

 GWU contends that it would be significantly harmed if an injunction required it to keep Saunders on the faculty. Specifically, the University alleges that Saunders has fomented dissension in the School by seeking to enlist the support of the faculty in a petition drive. While it is undoubtedly true that this controversy has created divisions within the Department and the School, no evidence or argument presented by GWU suggests that these divisions would be healed simply by removing Saunders. The petition drive among the faculty of the School would not have stirred up a conflict if there were not faculty members who already felt that Saunders should stay at the School. Her termination or nonrenewal may fan the flames of controversy rather than extinguish them. Thus, it does not appear that denial or granting of a preliminary injunction will affect whatever emotions have been generated by this matter.

 Moreover, even if granting the injunction did stir up more conflict, that conflict is unlikely to harm the School seriously. Saunders has been openly at odds with her Department since she filed an internal race discrimination claim in December, 1988. Yet during the past three years, the School has been able to function. Moreover, it is strange for a university to seek protection from heated debate over any matter, especially one so serious as discrimination.

 In the alternative, GWU charges that Saunders has attempted to use her position to harm the Department and the program on educational administration. Specifically, it observes that Saunders has written a critical "self study" of the program which threatens its accreditation. See Self Study (Heddesheimer Declaration, Exhibit B). Saunders is not, however, the only author of the study: Professors McDonald and Willett are the second and third authors. Moreover, Saunders has not surreptitiously sent this study to accreditors. Quite to the contrary, the self study was submitted to School officials for comments. See Memorandum from Jay Shotel to Deloris Saunders, Jane McDonald, and Henry Willett, March 19, 1991 (Heddesheimer Declaration, Exhibit B). Most fundamentally, GWU has failed to indicate anything malicious in the study. The most serious criticism of the program is that it has one fewer faculty member than the accreditation standards require. See Self Study at 1. The Study also criticize the Chairman of the Department for his indifference towards the program and lack of support for it, see id at 1, 9, but it was clear from her testimony that Dr. McDonald shares that sentiment with Saunders. Thus, there is nothing in the self study report to suggest that GWU would suffer if Saunders were granted the injunctive relief that she seeks.

 GWU also alleges that in submitting course schedules to the chairman, Saunders neglected to submit summer courses for McDonald and submitted courses for herself instead. See Second Smith Affidavit para. 2. The university does not, however, explain when this incident occurred or whether it was motivated by Saunders' well-founded belief that she would succeed in this litigation. Given the lack of factual foundation for GWU's other factual assertions, little weight can be attached to this evidence.

 Finally, GWU argues that injunctive relief would impose a financial burden upon it because it has already hired professors to replace Saunders. It is not, however, clear whether the university would have to pay Saunders during the summer because she is not currently teaching any classes. Moreover, since there is a strong likelihood that Saunders will prevail in this matter, GWU would have to compensate Saunders for any salary lost pending resolution of this matter.

 Thus, preliminary injunctive relief would impose only a minimal burden upon GWU.

 V.

 The public interest in granting injunctive relief is, by contrast, quite strong. Although judicial interference in the internal affairs of universities may often affect the free exchange of ideas necessary for academic freedom and achievement, discrimination on the basis of one's skin color is the very antithesis of the liberal discourse and dialogue upon which the idea of the university is founded. Moreover, the public's overriding interest in preventing discrimination justifies any inadvertent chill judicial interference may cause. See, e.g., University of Pennsylvania v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990). That public interest is especially compelling where, as here, a plaintiff has acted as one of only a few role models for blacks in the School. Cf. Wygant v. Jackson Bd. of Education, 476 U.S. 267, 315, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (Stevens, J., dissenting).

 VI.

 Balancing these factors, it is clear that preliminary injunctive relief is warranted. Discrimination is often difficult to prove, but in this case the evidence currently before the Court indicates a substantial likelihood that Saunders will prove numerous violations of § 1981. It is even more probable that she will prove that her request for conversion was denied in 1989 in retaliation for filing this suit. Furthermore, there is a significant threat of irreparable injury because a break in Saunders' employment with the university will harm her academic reputation in a manner that damages cannot compensate. Finally, the balance of harms weighs strongly in favor of injunctive relief: While granting an injunction would create little additional dissension in the School and impose minimal financial burdens upon GWU, denial of the injunction would thwart society's interest in rooting out discrimination and frustrate its interest in encouraging successful blacks to act as role models.

 As a final line of defense, GWU argues that Saunders does not deserve equitable relief because of her own laches and her "unclean hands." Saunders, however, filed her motion for a preliminary injunction only after trial, which was originally scheduled to conclude before the expiration of her contract with GWU expired, was continued. Similarly, although GWU has criticized her resume as lacking candor, Saunders has adequately answered each particular criticism. Finally, the accusation that Saunders attempted to help a former student to cheat on her comprehensive examination is entirely lacking in credibility.

 VII. Conclusion

 Accordingly, the accompanying order will grant Saunders' motion for a preliminary injunction and require GWU to reinstate Saunders until trial in this matter is completed.

 ORDER - June 20, 1991, Filed

 For the reasons stated in the accompanying memorandum and for reasons to be stated in a forthcoming memorandum on defendant's motion for summary judgment and in supplemental findings of fact, it is this 20th day of June, 1991, hereby

 ORDERED: that plaintiff's Motion for a Preliminary Injunction should be, and is hereby, granted; and it is further

 ORDERED: that defendant the George Washington University is hereby enjoined and directed to retain or reinstate plaintiff in or at an Associate Professor position in the School of Education and Human Development's Department of Educational Leadership under the same terms and conditions of employment and with the same responsibilities as previously; and it is further

 ORDERED: that Defendant's Motion for Summary Judgment should be, and is hereby, granted as it relates to plaintiff's claims under 42 U.S.C. § 1981 for retaliation and for failure to renew her contract; and it is further

 ORDERED: that Defendant's Motion for Summary Judgment should be, and is hereby, denied as it relates to all other claims.


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