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Elam v. Board of Trustees of the University of the Dist. of Columbia

December 18, 2007


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Joseph V. Elam is an Associate Professor of journalism at the University of the District of Columbia ("UDC"), a position and title that he has held since 1982. In September 2002, plaintiff applied for promotion to the rank of Full Professor. Two committees within UDC reviewed plaintiff's application and recommended him for promotion. Despite those endorsements, Dean Rachel Petty made an independent determination that plaintiff's achievements did not warrant the title of Full Professor, the highest rank awarded by the University. Consequently, she did not recommend plaintiff for promotion. After reviewing all of his materials, the Provost and Vice President for Academic Affairs concurred with Dean Petty's assessment and denied plaintiff's application for promotion. Plaintiff subsequently appealed to the President of the University, who agreed with his colleagues in the administration and denied plaintiff's appeal. Believing that he had been the victim of unlawful discrimination, plaintiff, a person of "Asian Indian" ethnicity, filed suit in the Superior Court of the District of Columbia seeking relief under both the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401 et seq. (2001), and 42 U.S.C. § 1983. The crux of plaintiff's complaint is that he was discriminated against on the basis of his ethnicity. He also claims that UDC created a hostile work environment. Defendant removed the case to this Court and has now moved for summary judgment in its favor. For the reasons set forth below, the Court will grant defendant's motion.


Although the parties disagree over what to make of them, the operative facts of this case are not seriously in dispute. Plaintiff first joined the faculty of Federal City College in 1971. Pl.'s Opp'n at 5. In 1977, Federal City College was merged with several other institutions to form what is now known as UDC. An alumnus of the Medill School of Journalism, Northwestern University, where he earned his Master's degree in journalism in 1976, plaintiff was initially a "Media Relations Specialist" at the University before he became an Assistant Professor in 1976. Pl.'s Stmt. of Facts ¶¶ 1, 3. The parties disagree over the exact date, but since 1980 at the latest plaintiff has served as the "Journalism Program Coordinator" and he was promoted to the rank of Associate Professor in 1982. Pl.'s Stmt. of Facts ¶ 3; Def.'s Stmt. of Facts ¶¶ 2, 5. He has also been the only full-time faculty member of the journalism program -- which is housed within UDC's Department of Mass Media, Visual and Performing Arts, Def.'s Stmt. of Facts ¶ 7 -- since 1982. Pl.'s Stmt. of Facts ¶ 6. Although he initially enrolled in an English Ph.D degree program at Howard University, plaintiff did not complete the course-work required to earn that degree, and it is undisputed that he does not hold a Ph.D in journalism. Id. ¶ 4; Def.'s Stmt. of Facts ¶ 4.

In September 2002, plaintiff applied for promotion to Full Professor, setting off the chain of events that ultimately culminated in this litigation. The process for promotion review at UDC is multi-tiered. At the outset, when a member of the faculty applies for promotion, the appropriate Department Chair issues an initial recommendation on the application. In this case, Yvonne Carter -- the Chair of the Department of Mass Media, Visual and Performing Arts --"strongly recommended" plaintiff's application for promotion. Def.'s Stmt. of Facts ¶ 11. Next, the application is passed along to the "Department Evaluation and Promotion Committee" ("Department Committee"), which consists of faculty from within the applicant's department. Id. ¶ 13. Here again, plaintiff's application was received favorably; of the four faculty members on the Committee, three "strongly recommended" plaintiff for promotion and one "recommended" him "but not strongly." Id. ¶¶ 14-15.

Moving along, the next step in the promotion procedure is review by the College Evaluation and Promotion Committee ("College Committee"). Id. ¶ 16. The College Committee consists of the Chairs of each Department Committee within the appropriate college,*fn1 and it consequently reviews the applications of each faculty member up for promotion from within that college. Id. ¶¶ 16-17. In addition to plaintiff's promotion portfolio, the eleven members of the College Committee reviewed seven other applications that year and ranked each within a numerical hierarchy. Def.'s Stmt. of Facts ¶ 18; Pl.'s Stmt. of Facts ¶ 19. Plaintiff's application was ranked second of eight and given a "strong recommendation." Def.'s Stmt. of Facts ¶ 19.

Two other individuals -- ranks #1 and #3, respectively -- were "strongly recommended," one faculty member (rank #4) was "recommended," and the remaining applicants (ranks #5-8) were "not recommended" for promotion. Id. Ex. F.

After the College Committee issues its recommendation, the applications are then forwarded to the Dean of the appropriate college for an independent assessment. In this case, Rachel Petty, Dean of the College of Arts and Sciences, performed that appraisal. Id. ¶¶ 20-21. After completing her review of the applications, Dean Petty concurred with the College Committee's recommendations to promote Professor Harmon-Martin (rank #1) and Professor Brown (rank #3). Def.'s Mot. Ex. G at 1. She also concurred with the College Committee's recommendations to promote Professor Ormond (rank #4) and not to promote candidates ranked #5 - 8 from the College of Arts and Sciences. Id. Significantly, however, she decided to swap the College Committee's respective ranks of plaintiff and Professor Ormond, for purposes of her recommendation. Id. at 1-2. After doing that, Dean Petty then "decided not to recommend plaintiff's promotion." Def.'s Stmt. of Facts ¶ 21. She did so, according to defendant, upon her determination that plaintiff had failed to "keep current in his field" and neglected to provide "leadership in curriculum review and development." Id. ¶ 23. In addition, she found plaintiff's scholarship lacking. Plaintiff's application, in her view, displayed a dearth of "'peer-reviewed research [or] . . . writing awards or critical acclaim by other professional writers.'" Id. at 38. Moreover, plaintiff did not demonstrate that he had ever undertaken any "formal research in his discipline." Id. ¶ 40. Those two critical flaws convinced Dean Petty that plaintiff was not entitled to the rank of Full Professor, the highest academic position awarded by UDC.

After the appropriate Dean renders an opinion, applications are forwarded to the Vice President of the University, who reviews promotion applications from all of the constituent colleges at UDC. Def.'s Stmt. of Facts ¶ 44. In this instance, Wilhelmina Reuben-Cooke, Provost and Vice President for Academic Affairs, examined plaintiff's application and concurred with Dean Petty's assessment that plaintiff's portfolio did not warrant promotion to the rank of Full Professor. Id. ¶¶ 45-47. Following that determination, plaintiff filed a written appeal with the President of the University, Dr. William Pollard. Id. ¶ 48. Dr. Pollard held an in-person meeting with plaintiff to discuss his application but subsequently decided not to promote plaintiff for substantially the same reasons cited by Dean Petty and Provost Reuben-Cooke. Id. ¶¶ 51-53.

Exasperated with UDC's promotion process, plaintiff filed this lawsuit. A native of Kerala, India, plaintiff believes that his promotion was denied due to his Asian Indian ethnicity. In support of this claim, plaintiff points out that all three decision-makers who issued adverse recommendations and decisions regarding his promotion -- Dean Petty, Provost Reuben-Cooke, and Dr. Pollard -- are "African Americans (or African)." Pl.'s Opp'n at 2. So, too, were the three candidates who were in fact promoted during that same application cycle. Id. Plaintiff claims that he was the victim of "bias against an Asian Indian, non-African American professor," id. at 6, and his complaint seeks relief under the DCHRA (Count I) and § 1983 (Count IV) for unlawful race discrimination in an employment decision.*fn2

In addition, plaintiff also raises a hostile work environment claim under the DCHRA (Count II), asserting that "UDC has subjected him to a continuous hostile work environment for nearly two decades." Id. at 1. In particular, he claims that he endured the following conditions:

(1) he was denied a key to his department office for nearly ten years; (2) the journalism office was repeatedly relocated, often to undesirable locations and work-spaces without plaintiff's input; (3) he was pressured to change a student's grade from an "F" to a "C"; (4) he was "discriminatorily removed" from his position as Staff Editor of the University's newspaper; (5) the University denied him adequate training and technology to upgrade and improve the journalism program; and (6) former Provost Beverly Anderson attempted to disrupt plaintiff's "Living Legend Award program." See Pl.'s Opp'n at 27-33; Def.'s Stmt. of Facts ¶¶ 85-125.

Plaintiff has requested the following relief: retroactive promotion to the rank of Full Professor dating back to the 2004-05 academic year, full back pay and benefits for the intervening time period, and compensatory and punitive damages appropriate to his various asserted injuries. First Am. Compl. ¶ 44. Defendant has moved for summary judgment and that motion is now ripe for resolution.


I. Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

II. The McDonnell Douglas Framework

Ultimately, Counts I and IV of the First Amended Complaint will be resolved under the same general legal framework. The D.C. Court of Appeals has stated that it "often look[s] to cases construing Title VII to aid . . . in construing the [DCHRA]." See Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 887 (D.C. 2003) (internal citations omitted). Thus, that court has applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting analysis to employment discrimination claims brought under the DCHRA. See Miller v. Am. Coal. of Citizens with Disabilities, Inc., 485 A.2d 186, 189 (D.C. 1984) (applying the McDonnell Douglas framework to the DCHRA); see also Blackman v. Visiting Nurses Ass'n, 694 A.2d 865, 868-69 (D.C. 1997). Similarly, federal claims of race discrimination in the employment context brought under § 1981 and § 1983 are also resolved under the same Title VII principles. See Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1232 (D.C. Cir. 1984) (§ 1981); Randle v. City of Aurora, 69 F.3d 441, 450 (10th Cir. 1995) (§ 1983); see also Singletary v. Dist. of Colum., 351 F.3d 519, 529-30 (D.C. Cir. 2003) (entertaining failure to promote claim under § 1983).Hence, both plaintiff's DCHRA claim under Count I and his § 1983 claim under Count IV*fn3 will be examined using the same Title VII disparate treatment framework, to which I now turn.

Disparate treatment and retaliation claims brought pursuant to Title VII are analyzed under the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas. The first step requires a plaintiff to carry the burden of establishing a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to make out a prima facie case of discrimination, a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.

If the employer is successful, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff "may attempt to establish that he was the victim of intentional discrimination 'by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). But "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Reeves, 530 U.S. at 147. Thus, the trier of fact may also "consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255 n.10). "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors . . . includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves, 530 U.S. at 148-49. As the D.C. Circuit has explained:

Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the ...

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