Appeals from the Superior Court of the District of Columbia (CAB9196-06) (Hon. Leonard Braman, Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
(Argued September 21, 2011
Before FISHER, Associate Judge, and STEADMAN and REID, Senior Judges.*fn1
Professor Sybil J. Roberts-Williams filed a lawsuit against her former employer, Howard University ( "Howard"), after she was denied tenure as a faculty member in the Department of Theatre Arts. The jury returned a verdict in favor of Howard on three of the special verdict questions, but found that Howard had breached its contractual obligations to Professor Roberts-Williams "by failing to provide her with  written biennial evaluations . . . [and (2)] . . . a statement of the reasons for the initial negative recommendations and [by] fail[ing] to allow two weeks to request reconsideration of the negative decision." The jury also determined that these breaches were "foreseeable and a substantial factor in the denial of tenure." The jury awarded Professor Roberts-Williams $250,060 "for loss of past earnings and benefits (BackPay)" and "$332,340 for loss of future earnings and benefits (Front Pay)."
Howard filed a post-trial motion for judgment as a matter of law, seeking reversal of that part of the jury verdict finding that it had breached its contract with Professor RobertsWilliams. The trial court set aside the jury verdict finding that Howard had breached the reconsideration contractual provision and entered judgment for Howard on that claim as a matter of law, but otherwise denied Howard's post-trial motion with respect to liability and damages. Both Howard and Professor Roberts-Williams filed appeals.
We affirm the trial court's judgment with respect to Howard's appeal. Because our decision does not alter the damages awarded to Professor Roberts-Williams, we need not reach the merits of her appeal.
The record reveals that Howard hired Professor Roberts-Williams as a temporary lecturer in the Department of Theatre Arts in 1993. In 1998, she assumed the position of a tenure-track probationary instructor, and she became eligible to apply for tenure at any time during the following seven-year period.
The terms and conditions of her tenure track appointment were governed by Howard's faculty handbook. Sections 2 and 3 of the faculty handbook are incorporated into an employee's individual contract with Howard. Section 2.7.4 is devoted to tenure, and Section 18.104.22.168 sets forth the procedures for obtaining tenure approval at the department, school or college, and the university levels, as well as the timetable for tenure review. Section 2.7.6 includes the requirements for performance evaluations of faculty members.
Professor Roberts-Williams was promoted to assistant professor in 2001, but she did not apply for tenure at that point. On April 8, 2004, the Interim Chair of the Department of Theatre Arts, Professor Joe W. Selmon, sent a letter to her advising that she must apply forenure during the 2004-2005 academic year. She submitted her application for tenure to the Department on October 15, 2004.*fn2 The application was reviewed by the tenured faculty of the Department, and on November 3, 2004, the Chairperson of the Department's Appointment, Promotion, and Tenure Committee ("APT"), Professor Sherill Berryman-Johnson,*fn3 sent her a list of 46 changes to be made in her application. After she submitted a revised package to the Department's APT, Professor Berryman-Johnson sent her a letter on November 17, 2004, listing 7 changes to be made in her application package.
Professor Berryman-Johnson advised Professor Roberts-Williams on November 19, 2004, that the APT vote was "three votes yes and three votes no," but on November 22, Professor Berryman-Johnson sent "a corrected letter" indicating that there were "two votes yes, three votes no, and one abstention." In a letter dated that same day, Professor Selmon informed Professor Roberts-Williams that she could "submit a written request for reconsideration by November 26, 2004." Neither Professor Berryman-Johnson's nor Professor Selmon's letter explained the reasons for the denial of the tenure application, or why Professor Roberts-Williams was given only three or four days within which to file her request for reconsideration, or why she had to file for reconsideration before being told of the reasons for the denial of tenure. Professor Roberts-Williams sought reconsideration on November 29, 2004.
In response to her reconsideration request, Professor Berryman-Johnson wrote separate letters to Professor Roberts-Williams and Professor Selmon on December 1, 2004, stating the APT's unanimous recommendation that Professor Roberts-Williams be retained in the Assistant Professor position "for the academic year 2005-2006." The reason for this recommendation was to permit Professor Roberts-Williams to "receive active clarity and support from senior faculty members as well as additional time to thoroughly address the depth and quality of her work." In a letter dated December 16, 2004, Professor Selmon notified Professor Roberts-Williams that: "The Committee and the Chair recommend that you be granted a special appointment for the coming 2005-2006 academic year at the rank of Lecturer." The special appointment was to be her "final appointment."
Dr. Berryman-Johnson's December 20, 2004 letter to Professor Roberts-Williams explained the reasons for the negative tenure decision. Central to the negative decision was the quantity of Professor Roberts-Williams' publications; her main scholarly work was her Mumia Project*fn4 and the explanatory letter stated:
Although the Mumia Project is a good example of publication sources, the candidate does not seem to have many other major publications/articles during the time period other than for departmental production programs and articles related to Mumia. The weight of the publications are not with enough volume of material that would be commensurate for a promotion to Associate Professor.
While the evaluation of her teaching ranged from "average to excellent," the letter indicated that "some students reported confusion regarding [Professor Roberts-Williams'] methodology." One evaluator believed "that a doctorate is required." The letter praised Professor Roberts-Williams as a "dramaturg[e]" or playwright, but expressed concern about her "collegiality" due to her "limited support in attending departmental productions."*fn5
Dean Tritobia Hayes-Benjamin, Associate Dean of the College of Arts and Sciences, Division of Fine Arts, supported the Department's recommendation that Professor Roberts-Williams be retained as a Lecturer through May 15, 2006. However, Howard's Provost and Chief Academic Officer, Dr. Richard A. English, determined on May 23, 2005, that the faculty handbook precluded an additional year for Professor Roberts-Williams, and that she could only "permit her application for promotion and tenure to proceed or accept the 2004-05 academic year as her final one as a member of the faculty."
Dean Hayes-Benjamin also supported the recommendation of the Division of Fine Arts that Professor Roberts-Williams be allowed to withdraw her tenure application and to resubmit it in Fall 2005. Dr. English rejected this recommendation based upon the above interpretation of the faculty handbook.
Later, on December 2, 2005, Provost English recommended that the President, H. Patrick Swygert, not approve Professor Roberts-Williams for promotion with tenure. On January 4, 2006, Dean James Donaldson, Dean of the College of Arts and Sciences, notified Professor Roberts-Williams that the President did not approve her promotion with tenure.
Professor Roberts-Williams filed a four-count complaint against Howard on December 29, 2006. Counts I to III alleged violations of the District of Columbia Human Rights Act ("DCHRA"): gender discrimination, pregnancy discrimination, and discrimination on account of family responsibilities. Count IV asserted a breach of contract claim for alleged violations of Howard's faculty handbook, including: (1) failure to provide the required biennial evaluations, counseling, and guidance ("biennial evaluations"); (2) failure to implement the proper reconsideration procedure after the Department's denial of the tenure application ("reconsideration"); and (3) failure to provide information about the criteria used to review the tenure application ("criteria").
The trial lasted approximately eight days. The witnesses generally provided testimony regarding Howard's tenure process and Professor Roberts-Williams' efforts to gain tenure, as recounted in this factual summary. There also was expert testimony regarding tenure procedures, as well as Professor Roberts-Williams' alleged damages. In addition to herself, Professor Roberts-Williams called as witnesses Dean Hayes-Benjamin, Professor Selmon, Dean Donaldson, and expert witnesses Richard Lurito and Caleen Jennings; Professor Berryman-Johnson's deposition was read into evidence. Howard also presented as its witnesses Dean Hayes-Benjamin and Professor Selmon, as well as Professor George Epting (a tenured professor in the Department of Theatre Arts and a member of the Department's APT); and Thomas Borzilleri, an economist and expert. The jury rejected Professor Roberts-Williams' DCHRA claims, but found Howard liable for two of the breach of contract claims (biennial evaluations and reconsideration), and awarded Professor Roberts-Williams damages. The trial court set aside the verdict as to one of the breach of contract claims (reconsideration), but that action did not affect the total amount of damages awarded by the jury. Both Howard and Professor Roberts-Williams noted appeals.
Two provisions of the faculty handbook are at issue in these appeals: Section 2.7.6 governing biennial performance evaluations of faculty members, and Section 22.214.171.124.1 as it relates to reconsideration of a negative departmental tenure decision. The pertinent part of Section 2.7.6 provides that: "Each member of the faculty holding a temporary, probationary or tenured appointment, whether full or part-time, shall be evaluated at least every 2 years"; and further, that: "When a faculty member is being considered for . . . tenure, the evaluation file for the relevant time period shall be a primary source of data on which such decision [is] made." The reconsideration provision of Section 126.96.36.199.1 specifies, in part, that: "Any faculty member who is reviewed for and denied a positive recommendation for tenure may ask for reconsideration of that decision at the department level." The department must inform the candidate of the reconsideration "right and the procedures for exercising it when [the candidate] is first notified of a negative tenure decision." The reconsideration procedures are specific.*fn6 The jury found that Howard had breached both of these provisions.
The trial court denied Howard's post-verdict motion with respect to Section 2.7.6. The court also determined that the jury correctly found that Howard breached Section 188.8.131.52.1, but that Professor Roberts-Williams could not prevail on the reconsideration claim because even if Howard had followed the reconsideration procedure, she would not have had enough time to overcome ...