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June 26, 1991


Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 Plaintiff Saunders sues defendant The George Washington University (GWU) under the Civil Rights Act of 1866, 42 U.S.C. § 1981, *fn1" and the D.C. Human Rights Act Statute, D.C. Code § 1-2501 et seq., for discriminating against her on the basis of her race and retaliating against her for filing this action. An Order of June 20, 1991, 768 F. Supp. 843, granted defendant's motion for summary judgment in part and denied it in part for reasons to be stated in a forthcoming memorandum. This is that memorandum.


 In order to prevail on a motion for summary judgment, the moving party must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because defendant GWU is also the moving party, it may show that there is no genuine issue as to a particular fact by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If, however, the plaintiff does offer evidence in support of her claims, "courts must view the facts and the inferences to be drawn from the underlying facts in the light most favorable to the opposing party." White v. Fraternal Order of Police, 285 U.S. App. D.C. 273, 909 F.2d 512, 516 (D.C. Cir. 1990) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam)). The plaintiff has accordingly offered evidence and suggested reasonable inferences to be drawn from that evidence which clearly raise genuine issues of material fact that a jury must resolve.


 Deloris Saunders is black. In 1971, she earned a Ph.D. in General Educational Administration from the University of Michigan. *fn2" For the better part of the next fifteen years, she taught at the university level, spending the latter part of that period as an associate professor at Howard University. *fn3" In 1985, Saunders accepted a three-year contract to teach in what is now the Department of Educational Leadership (the "Department") at GWU. *fn4" In doing so, she accepted both a cut in pay and a reduction in rank to assistant professor. *fn5"

 Saunders avers that she was not aware at the time that the School of Education and Human Development (the "School") had a custom of bringing in new faculty at the rank of their former positions, *fn6" or that her position had been advertised on less attractive terms in a journal targeted at minority educators than in the Chronicle of Education advertisement to which she responded. *fn7" She was, however, aware that she was the only black in her department, and, due to her acquaintance with Lilly, it is also likely that she was aware at that time that Lilly, who was also black, left because he felt his colleagues' judgments of him became racially tainted when he sought to become an assistant Dean of the School and chair of the Department. *fn8"

 Like Lilly, Saunders was at first well received by her white colleagues. After only a year in the Department, she became an associate professor despite a time-in-rank requirement of three years for such a promotion. *fn9" In 1987, however, she and George Smith, the chairman of the Department, were serving together on a dissertation committee, and they disagreed over the quality of a student's work. Smith thought it was adequate; Saunders thought it was not. Saunders submitted unnamed copies of the dissertation to other professors who agreed with her assessment. *fn10" There is evidence that rather than bowing to these judgments, Smith became hostile, berating Saunders in front of students and other faculty, and used his administrative position to subject her to petty indignities. *fn11"

 Further evidence in the record suggests that this sort of behavior was uncharacteristic of Smith. In previous conflicts with white colleagues, Smith was not confrontational at all; quite to the contrary, there is evidence that he shrank from contact, much less open conflict, with people with whom he had disagreements. *fn12" According to Saunders, he could not abide the notion that a black person would resist him and act as if she were really his equal. This assessment is supported by Dr. Lilly's experience in the Department. Moreover, there is testimony that Dean Leonard concluded from Smith's treatment of Saunders that Smith had racist tendencies. *fn13"


 In October of 1987, Saunders requested that a tenure track position be created in the program in educational administration coordinated by her. *fn14" She also requested that her position be converted from contract to tenure-accruing. *fn15" There is evidence that in the School individuals appointed to tenure-accruing positions almost always shortly thereafter receive tenure. *fn16" Tenure, of course, guarantees employment for life subject only to good behavior, continued teaching, or extraordinary financial exigency, thereby relieving a professor from the threat of periodic decisions whether to renew her contract and freeing her to design her own course of study. *fn17"

 Other evidence suggests that the program on educational administration needed a tenure track position. Dr. Lilly had been tenured, and since he left the program it had grown under Saunders into the second largest program in the School. *fn18" There is also substantial evidence that Saunders was qualified for a tenure track position. As mentioned before, she has a Ph.D. in Educational Administration, and since shortly after her arrival at GWU she was a member of the Advanced Graduate Faculty with as important teaching responsibilities as any tenured faculty member. *fn19" Indeed, several colleagues have testified to her qualifications, and one has even testified that a challenge to her academic credentials in 1987 would have seemed ridiculous. *fn20" Moreover, it is undisputed that because she was hired in 1985 pursuant to a national search, the Department could have converted her to tenure-accruing status without conducting another nationwide search. *fn21"

 Nonetheless, action on Saunders' request was deferred. *fn22" At Smith's insistence, the tenured faculty of the Department decided to defer action until it had gathered more information about enrollment in the program. *fn23" Although Smith promised to assemble the information "as expeditiously as possible," *fn24" he never consulted the Office of Institutional Research where such data was readily available. *fn25" Indeed, when acting Dean Shotel wrote Smith in the spring of 1988 that the educational administration program had considerable enrollment and urged that action be taken quickly on Saunders' request, Smith did not inform the members of the Department of Shotel's letter and continued to assert concerns over enrollment in the program. *fn26" Smith also asserted that action on Saunders' request should be deferred because Leo Leonard, who was about to become dean of the School, was an expert in policy studies; Leonard, however, has testified that he has no training or expertise in that field. *fn27"


 On September 21, 1988, Saunders renewed her request for a tenure-accruing position in the program on educational administration. *fn28" This time the Department voted to create such a position, but five members of the Department -- Smith, John Boswell, Martha Burns, Dorothy Moore, and Martha Rashid -- also voted to deny Saunders' request for conversion, thereby defeating the request by one vote. *fn29" If a vote had been taken a year earlier, it is likely that at least Rashid would have voted in favor of Saunders based upon her academic qualifications. *fn30"

 Although Saunders immediately requested an explanation of the decision, Smith did not respond for over a month, when Dean Leonard demanded that he do so. *fn31" Smith then informed Saunders that the faculty expressed concern over her performance in four areas:

1. The faculty feels that a problem exists in your listening to and working with your colleagues.
2. They perceive a problem in your failing to work administratively with the Department Chair.
3. The manner in which the LEAD Project was negotiated was considered unprofessional.
4. Informing the Dean and the Chair of an anticipated absence and the list of instructors to teach classes only a few days in advance was also considered unprofessional. *fn32"

 Saunders appealed, charging that her evaluation "failed to address the published criteria governing appointment, tenure and promotion." *fn33" Neither party has, however, identified those criteria.

 Saunders' appeal was never completed. Appeals in the School are decided by a three-member committee, one appointed by the protesting professor, one by the Department, and one by agreement between the parties. *fn34" The Department, however, rejected three of Saunders' recommendations for the third member of the committee and made none of its own. *fn35" According to Saunders, these actions led her designated panel member "to resign in disgust" and led Saunders to refuse to continue in a process that she considered to be "an exercise in humiliation." *fn36"

 There is also evidence from which it might be inferred that at about the same time members of the Department embarked upon a plan to stymie Saunders' hopes of conversion. In 1988, Dr. Brown, who was also part of the program on educational administration, was preparing to leave the university. Accordingly, Smith appointed an "Ad Hoc Search Committee for an Educational Administration Faculty Position." Saunders served upon the committee, along with Drs. Boswell and Burns, who acted as the chairwoman of the committee. With the apparent approval of the Department, the committee recommended the creation of a tenure track position in the program on educational administration. On January 5, 1989, Smith transmitted relevant materials to Dean Leonard, including a copy of a proposed advertisement for the committee. *fn37" A week later, Burns submitted similar, but in one respect significantly different, material to Annie Wooldridge, the University's equal ...

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