United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For KEMIT MAWAKANA, Plaintiff: Richard A. Salzman, LEAD ATTORNEY, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington, DC.
For BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, Defendant: Sara Elizabeth Robinson, Yoora Pak, LEAD ATTORNEY, WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP, McLean, VA; Smruti V. Radkar, LEAD ATTORNEY, UNIVERSITY OF THE DISTRICT OF COLUMBIA, School of Law, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff Kemit Mawakana brings this action against defendant, the Board of Trustees of the University of the District of Columbia, asserting discrimination and contract claims arising from his employment with the University's David A. Clarke School of Law (" the University" ), the University's denial of his application for tenure, and his eventual termination. Compl. [Dkt. #1-1]. Defendant has moved to dismiss plaintiff's contract claims pursuant to Rule 12(b)(6). Def.'s Partial Mot. to Dismiss [Dkt. # 8] (" Def.'s Mot." ); Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 8-1] (" Def.'s Mem." ). The Court finds that plaintiff has not stated a claim for breach of an express contract, but since he has alleged sufficient facts to state a plausible claim that the University breached the terms of an implied contract, the Court will deny defendant's motion.
I. Plaintiff's Employment Agreement with the University
In the fall of 2006, the University hired plaintiff for a three-year term as an Assistant Professor of Law on the tenure track. Compl. ¶ ¶ 7, 40. The terms of plaintiff's employment were outlined in a letter from Christine Poole, the Director of the University's Office of Human Resources. Ex. 2 to Pl.'s Opp. to Def.'s Mot. [Dkt. # 10-1] (" Appointment Letter" ). The Appointment Letter states that the University's " [c]riteria for retention and promotion shall include teaching, including case supervision, practice of law, community service, and scholarship as defined under the School of Law's Standards and Procedures for Retention and Tenure." Id. at 1.
The Standards and Procedures for Retention and Tenure defines the criteria upon which candidates for promotion and tenure will be evaluated: teaching, scholarship, and service. Ex. 2 to Def.'s Mot. [Dkt. # 8-2] (" Standards and Procedures" ) at 2-6; see also Compl. ¶ 9. It also includes a set of procedural provisions and provides that " [t]he professional development of
each member of the full-time faculty who is not tenured will be assessed every year" by a subcommittee of the University's Faculty Evaluation and Retention Committee (" FERC" ), which consists of " all tenured members of the faculty other than the Dean." Standards and Procedures at 6; Ex. 1 to Def.'s Mot. [Dkt. # 8-2] (" Faculty Handbook" ) at 26. The goal of the annual review is to " provide the non-tenured faculty member with feedback on . . . his progress toward meeting the standards for promotion and tenure . . . and to provide supportive guidance and direction toward the successful completion of the promotion and tenure process." Standards and Procedures at 6-7.
To further that goal, the Standards and Procedures imposes a variety of requirements on the FERC and its subcommittees as part of the annual review process:
Each member of a subcommittee will: (1) attend at least two classes and/or two clinic sessions taught by the faculty member; (2) review the faculty member's scholarly works while in progress and when published; (3) review the faculty member's community service and [School of Law] service, and (4) otherwise monitor the faculty member's professional development. The subcommittee will review student evaluations and exams or other valuable devices and may discuss the faculty member's work with others in the faculty member's field.
The subcommittee shall meet with the faculty member at least once each academic year to discuss the faculty member's professional development and to counsel the faculty member. The subcommittee will discuss the degree to which her or his performance meets the standards for promotion and tenure stated in this document. . . .
The Committee of the Faculty Evaluation and Retention Committee will annually evaluate each non-tenured faculty member, communicate to each non-tenured faculty member the report of the subcommittee, and provide a written assessment to the Retention and Tenure Committee.
Id. at 7-8.
The Standards and Procedures also contains the following provision:
The decision of a candidate for renewal and an applicant's application for promotion and/or tenure will be evaluated solely on the standards in this document, regardless of: (1) any prior discussions with, statements made by, or promises made by any member of the faculty or any other persons or (2) any failure by the subcommittee, the Faculty Evaluation and Retention Committee, the Chair of the Faculty Evaluation and Retention Committee, or any other person to follow the procedural rules contained in this document.
Id. at 11.
II. The Denial of Plaintiff's Application for Tenure and His Eventual Termination
At the end of his initial three-year term of employment, plaintiff applied for a promotion to the rank of Associate Professor, and in October 2010, the University renewed his contract and promoted him. Compl. ¶ ¶ 7, 40. Plaintiff became eligible to apply for tenure in 2011, and he submitted his application in July of that year. Id. ¶ ¶ 7, 10. On February 28, 2013, the FERC subcommittee responsible for evaluating plaintiff's application issued a report recommending that his tenure application
be denied. Id. ¶ 45. It found that plaintiff had satisfied the University's teaching and service requirements, but that he had not met the scholarship requirement. Id. ¶ ¶ 12, 15-16, 46. After the University declined to provide plaintiff with a " terminal year" of teaching, plaintiff's employment with the University was terminated effective August 15, 2013. Id. ¶ 34.
Plaintiff states that, prior to the 2013 FERC subcommittee report, the University did not provide him with any subcommittee feedback suggesting that his scholarship was deficient, and that it therefore breached this term of his contract. Id. ¶ 46. He asserts that the University's failure to provide him with subcommittee feedback was a substantial cause of the adverse tenure decision and his termination, because it denied him an opportunity to address any defects in his scholarship prior to the consideration of his tenure application. Id. ¶ 53. Plaintiff also claims that the University breached the implied covenant of good faith and fair dealing underlying his contract by failing to provide him with feedback about his scholarship and his progress toward tenure. Id. ¶ 62. He alleges that the University's breach has caused him serious financial injury, including loss of employment and loss of both past and future salary and benefits. Id. ¶ ¶ 53, 60, 62.
After filing a charge with the Equal Employment Opportunity Commission and exhausting his administrative remedies, id. ¶ 54, plaintiff filed suit in District of Columbia Superior Court on October 2, 2014, and defendant removed the case to this Court on December 5, 2014. Def.'s Notice of Removal [Dkt. # 1] ¶ 1. The complaint contains four counts: Count I -- Race Discrimination in Violation of Title VII of the Civil Rights Act of 1964 and the District of Columbia Human Rights Act; Count II -- Race Discrimination in Violation of 42 U.S.C. § § 1981 and 1983; Count III -- Breach of Contract; and Count IV -- Breach of the Implied Covenant of Good Faith and Fair Dealing. Compl. ¶ ¶ 55-62. Defendant filed the pending motion to dismiss on February ...