United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
Kemit Mawakana sued the Board of Trustees of the
University of the District of Columbia ("the
University") for discrimination and breach of contract
after he was denied tenure by the University's David A.
Clark School of Law. The University maintains that its
decision was based on plaintiffs failure to satisfy the
scholarship requirement for tenure, but plaintiff alleges
that the denial of his application was actually motivated by
racial discrimination, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2OOOe et seq.,
the D.C. Human Rights Act, D.C. Code §2-1402.11 et
seq., and 42 U.S.C. §§ 1981, 1983, and that
the University breached his employment contract by failing to
provide him with feedback and notice of any concerns about
his scholarship in the years leading up to the tenure
has moved for summary judgment on these claims. For the
reasons set forth below, the Court will grant defendant's
in higher education confers a right to permanent employment,
with only limited exceptions. Def.'s SOF ¶ 14;
Pl.'s SOF ¶ 14. An analysis of plaintiff s claims
requires an understanding of the faculty evaluation and
tenure process at this particular university.
The University's Performance and Tenure Review
document titled Standards and Procedures for Retention and
Tenure sets forth the process to be used to evaluate the
professional development of faculty members. Standards and
Procedures for Retention and Tenure, Def.'s Ex. II,
("Standards and Procedures"). According to the
Standards and Procedures, faculty members are evaluated on
three criteria: teaching, scholarship, and service.
Id. at 2-6. Full-time, non-tenured faculty are to be
assessed annually, id. at 6, and non-tenured
professors are typically considered for tenure in their fifth
year of teaching. Broderick Decl., Def.'s Ex. 1, ¶
18; see also Faculty Handbook, Def.'s Ex. 10, at
annual performance reviews, faculty members submit an annual
statement to the law school's Faculty Evaluation and
Retention Committee ("FERC") by October 15 of each
year. Standards and Procedures at 6. The annual statement
describes the professor's teaching, scholarship, and
service activities for the past year and plans for the
current year. Id.
subcommittee of two or more tenured faculty members is
charged with reviewing the professor's annual statement
and work, including: attending classes taught by the faculty
member; reviewing the faculty member's "scholarly
works while in progress and when published;" reviewing
his or her service to the community and the law school; and
meeting with the faculty member to discuss his or her
professional development. Id. at 7-8. The
subcommittee prepares a report for the FERC, and the full
FERC evaluates the faculty member, communicates the
subcommittee's report to the faculty member, and provides
a written assessment to the Retention and Tenure Committee.
Id. at 8. If the professor is being reviewed for
reappointment, the FERC will also recommend whether to
reappoint the professor. Id.
applications for tenure, a faculty member submits a tenure
application to the FERC. Standards and Procedures at 9-10. A
tenure application contains the same type of information
about a professor's teaching, scholarship, and service as
found in an annual statement, including supporting documents
such as student evaluations, classroom materials, information
demonstrating his or her "achievements as a legal
scholar, " such as "copies of scholarly works and
other evidence of scholarly pursuits, " and anything
else the applicant wants the FERC to consider. Id; see
also Faculty Handbook at 12-15. The scholarship criteria
may be satisfied with "at least three published
scholarly works of high quality or three scholarly
equivalents works related to the practice of law, "
Standards and Procedures at 4-5, 11, and an applicant
"is invited to nominate three or more experts in her or
his field or fields for assessment of the applicant's
scholarly work." Id.
submitted, the tenure application undergoes a five-level
review. First, a subcommittee of the FERC, comprised of three
tenured faculty members, evaluates the application and
prepares a draft report with a recommendation for the FERC.
Def's SOF ¶ 22; Pl.'s SOF ¶22; Merger
Agreement, Def's Ex. 9, at 8; Faculty Handbook at 14.
Second, the full FERC reviews the subcommittee's draft
report and the applicant's qualifications, votes on
whether to recommend tenure, and prepares a final FERC report
with the full committee's recommendation. Def's SOF
¶ 23; Pl.'s SOF ¶ 23. Third, the Dean of the
law school reviews the application and the FERC report,
prepares a separate evaluation of the applicant's
teaching, scholarship, and service, and makes a
recommendation. Def.'s SOF ¶ 24; Pl.'s SOF
¶ 24. Fourth, the University's Provost receives the
application, the FERC tenure report, and the Dean's
recommendation and makes his or her own recommendation based
on these materials. Def.'s SOF ¶ 25; Pl.'s SOF
¶ 25. Finally, the University's President receives
the tenure application, the FERC tenure report, the
Dean's recommendation, and the Provost's
recommendation and makes a final decision on tenure.
Def.'s SOF ¶ 26; Pl.'s SOF ¶
2006, plaintiff Kemit Mawakana entered into a three-year
employment contract with the University for a tenure-track
teaching position. Def.'s SOF ¶¶ 37-39;
Pl.'s SOF ¶¶ 37-39. The terms of his employment
contract were set out in a May 10, 2016 letter. Appointment
Letter, Def.'s Ex. 12. The Appointment Letter provided
that in the third year of the contract, plaintiff would
"receive a formal review" by the FERC in connection
with the contract's renewal, and that "[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. The Appointment Letter stated that it was
expected that the contract would be renewed for another
three-year term and that plaintiff would be considered for
tenure in his fifth year of employment. Id.
began work as an Assistant Professor on August 16, 2006.
Def.'s SOF ¶ 38; Pl.'s SOF ¶ 38. As
anticipated, his contract was renewed for another three-year
term in 2009, see Def.'s SOF ¶ 64;
Pl.'s SOF ¶ 64, and in 2010, he was promoted from
Assistant Professor to Associate Professor. Def's SOF
¶ 89; Pl.'s SOF ¶ 89. Also, in accordance with
the Appointment Letter, plaintiff became eligible to apply
for tenure in his fifth year of employment, and he submitted
a tenure application in July 2011. Def's SOF ¶ 93;
Pl.'s SOF ¶ 93.
satisfy the scholarship criteria of the tenure review
process,  plaintiff submitted four articles with his
• Power and Law, Bait and Switch: Debunking
"Law " as a Tool of Societal Change, 36 Okla.
City. U. L. Rev. 93 (2011) ("Power and
Law"), Def's Ex. 42;
• In the Wake of Coast Federal: The Plain Meaning
Rule and the Anglo-American Rhetorical Ethic, 11 U. of
Md. L. J. of Race, Religion, Gender, & Class 39 (2011)
("Coast Federal”), Def's Ex. 43;
• Historically Black College and University Law
Schools: Generating Multitudes of Effective Social
Engineers, 14 J. Gender, Race & Just. 679 (July
2011) ("HBCU Law Schools"), Def's Ex.
• Ending the Disappearing Act of Affordable Housing
in the District of Columbia, 42 J. D.C. Bar Ass'n
(2011) ("Disappearing Act”), Def's
Def's SOF ¶ 96; Pl.'s SOF ¶ 96.
evidence shows that plaintiff received the following
performance reviews and feedback during his employment at the
filed this lawsuit in D.C. Superior Court on October 2, 2014.
Compl. On December 5, 2014, defendant removed the case to
this court. Def's Notice of Removal [Dkt. # 1], On
February 10, 2015, defendant filed a partial motion to
dismiss plaintiff s contract claims, Def's Partial Mot.
to Dismiss [Dkt. # 8], and answered plaintiffs remaining
claims. Def's Answer [Dkt. #7]. On July 10, 2015, the
Court granted defendant's motion to dismiss in part and
denied it in part, finding that plaintiff failed to state a
claim for breach of an express contract but that he stated a
claim for breach of an implied contract. Mem. Op. [Dkt. #16].
Following discovery by the parties, defendant filed a motion
for summary judgment, which is fully briefed. See
Def's Mot. for Summ. J. [Dkt. # 35] ("Def's
Mot.") and Def's Supp. Mem. and Exhibits [Dkt. #
35-39] ("Def.'s Mem."); Pl.'s Opp. to
Def.'s Mot. [Dkt. # 44] (Sealed) ("Pl.'s
Opp."); Def.'s Reply in Supp. of Def.'s
Mot. (Sealed) [Dkt. # 49] ("Def.'s Reply").
STANDARD OF REVIEW
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The party seeking summary judgment
"bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must "designate specific facts showing that there
is a genuine issue for trial." Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A dispute is
"genuine" only if a reasonable fact-finder could
find for the non-moving party; a fact is "material"
only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S.
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing
a party's motion, the court must "view the facts and
draw reasonable inferences 'in the light most favorable
to the party opposing the summary judgment motion.'"
Scott v. Harris, 550 U.S. 372, 378 (2007)
(alterations omitted), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam).
asserts that it is entitled to summary judgment both on
plaintiffs discrimination claims and his contract claims. It
maintains that it denied plaintiff s tenure application
because his scholarship did not satisfy the University's
tenure standards and that there is insufficient evidence for
a reasonable jury to find otherwise. Def's Mem. at 1. It
also contends that it is entitled to summary judgment as a
matter of law on plaintiffs contract claims because the
claims were untimely, there was no implied contract, and the
undisputed evidence shows that defendant did not breach
plaintiff s employment contract. Id. Plaintiff
maintains that his contract claims were timely filed, there
was an implied contract, and that there are disputed material
facts about the motives underlying the tenure decision and
about whether defendant breached the parties' contract.
Pl.'s Opp. at 3.
Race Discrimination Claims under Title VII of the Civil
Rights Act and D.C. Human Rights Act
VII of the Civil Rights Act of 1964 "makes it unlawful
for an employer 'to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
race'" or other protected characteristics.
Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir.
2008), quoting 42 U.S.C. § 2000e-2(a). To state a claim
under Title VII's anti-discrimination provision, a
plaintiff need only establish two elements: that "(i)
the plaintiff suffered an adverse employment action (ii)
because of the plaintiffs race, color, religion, sex,
national origin, age, or disability." Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008), citing
42 U.S.C. § 2000e-l6(a).
Plaintiff does not base his claims on direct evidence of
discrimination. In cases in which a plaintiff relies on
circumstantial evidence to establish the employer's
unlawful conduct, courts apply the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Barnette v. Chertoff 453 F.3d
513, 515 (D.C. Cir. 2006). Under that framework, the
plaintiff bears the initial burden of establishing a prima
facie case. McDonnell Douglas, 411 U.S. at 802;
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006). Once a prima facie case is established, then
"[t]he burden . . . must shift to the employer to
articulate some legitimate, nondiscriminatory reason"
for the adverse action. McDonnell Douglas, 411 U.S.
at 802; Holcomb, 433 F.3d at 896. If the employer
makes this showing, then "the burden-shifting framework
disappears, " and the question before the court is
"whether a reasonable jury could infer intentional
discrimination . . . from all the evidence." Carter
v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir.
summary judgment stage, where an employee "has suffered
an adverse employment action and an employer has asserted a
legitimate, non-discriminatory reason for the decision, the
district court need not - and should not - decide
whether the plaintiff actually made out a prima facie case
under McDonnell Douglas'' Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(emphasis in original). Rather, the "operative
question" is whether "the employee produced
sufficient evidence for a reasonable jury to find that the
employer's asserted nondiscriminatory reason was not the
actual reason and that the employer intentionally
discriminated against the employee." Id. The
Court must then examine the totality of the evidence,
including "(1) plaintiffs 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... or any contrary evidence that may be available
to the employer Aka v. Wash. Hosp. Ctr., 156 F.3d
1284, 1289 (D.C. Cir. 1998).
same analysis applies to claims under the D.C. Human Rights
Act. See Miles v. Howard Univ., 653 Fed.Appx. 3, 9
(D.C. Cir. 2016) (holding that the determination made using
the McDonnell Douglas framework under Title VII
applies equally to claims under the D.C. Human Rights Act).
VII plaintiff may seek to demonstrate that the employer's
explanation for his discharge was pretextual by providing
evidence from which a reasonable jury could find that the
employer's proffered, lawful reasons for acting are
"unworthy of credence." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) quoting
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 (1981). Showing pretext, though, "requires more
than simply criticizing the employer's decisionmaking
process." Hairston v. Vance-Cooks, 773 F.3d
266, 272 (D.C. Cir. 2014). "Once the employer has
articulated a non-discriminatory explanation for its action
... the issue is not the correctness or desirability of [the]
reasons offered . . . [but] whether the employer honestly
believes in the reasons it offers." Fischbach v.
D.C. Dep't of Corrs., 86 F.3d 1180, 1183 (D.C. Cir.
1996), quoting McCoy v. WON Continental Broadcasting
Co., 957 F.2d 368, 373 (7th Cir. 1992).
the employer's stated belief about the underlying facts
is reasonable in light of the evidence . . . there ordinarily
is no basis for permitting a jury to conclude that the
employer is lying about the underlying facts."
Brady, 520 F.3d at 495. And the D.C. Circuit has
made it clear that when it uses the word
"reasonableness, " it is not authorizing the court
to sit as a "super-personnel department" that may
evaluate the reasonableness of an entity's decision from
a business perspective; "[r]ather, the factfinder is
tasked with evaluating the reasonableness of the
decisionmaker's belief because honesty and
reasonableness are linked: a belief may be so unreasonable
that a factfinder could suspect it was not honestly
held." DeJesus v. WP Company LLC, 841 F.3d 527,
534 (D.C. Cir. 2016) (emphasis in original).
Plaintiff Fails to Overcome the Heightened Deference Accorded
to Academic Decisions.
considerations apply with even more force in the academic
context. The Court is required to accord great deference to
an educational institution when it undertakes a review of an
academic determination. See, e.g., Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 225 (1985) ("When
judges are asked to review the substance of a genuinely
academic decision ... they should show great respect for the
faculty's professional judgment."). A court may not
overturn an academic decision "unless it is such a
substantial departure from accepted academic norms as to
demonstrate that the person or committee responsible did not
actually exercise professional judgment." Alden v.
Georgetown Univ., 734 A.2d 1103, 1109 (D.C. 1999),
quoting Regents of the Univ. of Mich, 474 U.S. at
225; see also Bd. of Curators of Univ. of Mo. v.
Horowitz, 435 U.S. 78, 90 (1978) (holding that academic
decisions require "expert evaluation of cumulative
information and [are] not readily adapted to the procedural
tools of judicial or administrative decisionmaking").
courts apply even more deference to decisions concerning
faculty members. A "court must be particularly wary of
second-guessing a university's decisions concerning
faculty members." Elam v. Bd. of Trustees of Univ.
of D.C, 530 F.Supp.2d 4, 17 (D.D.C. 2007), quoting
Okruhlik v. Univ. of Ark, 395 F.3d 872, 879 (8th
Cir. 2005) ("The academic setting and complex nature of
tenure decisions . . . distinguishes them from employment
decisions generally."); Brown v. George Washington
Univ., 802 A.2d 382, 385 (D.C. 2002), quoting Loebl
v. New York Univ., 255 A.D.2d 257, 257, 680 N.Y.S.2d 495
(N.Y.App.Div. 1998) ("[C]ourts should not invade, and
only rarely assume academic oversight, except with the
greatest caution and restraint, in such sensitive areas as
faculty appointment, promotion, and tenure, especially in an
institution of higher learning."). Indeed, decisions
about "[f]aculty appointment and promotion are
'quintessential educational issues that go to the very
essence of faculty judgments as to qualifications for
scholastic employment' and should properly be left to the
academic institutions themselves absent a strong showing of
improper conduct." Elam, 530 F.Supp.2d at 17,
quoting Brown, 802 A.2d at 387. Where the file of an
applicant seeking tenure or academic promotion contains
"conflicting views of specialized scholars, triers of
fact cannot hope to master the academic field sufficiently to
review the merits of such views and resolve the differences
of scholarly opinion." Zahorik v. Cornell
Univ., 729 F.2d 85, 93 (2d Cir. 1984). Absent evidence
sufficient to support a finding that "disagreement about
the scholarly merits of the candidate's academic work . .
. [is] influenced by forbidden considerations such as sex or
race, universities are free to establish departmental
priorities, to set their own required levels of academic
potential and achievement and to act upon the good faith
judgments of their departmental faculties or reviewing
authorities." Id. at 94.
asserts that he has come forward with enough circumstantial
proof of race discrimination to warrant a jury trial.
Pl.'s Opp. at 24-25. He points to several positive
comments that were made about his work and argues that the
evidence would enable a reasonable jury to find that
defendant's stated reason for denying his tenure
application was pretextual:
• Professor [XXXXX] provided
positive comments on an "early draft" of Power
and law, and later the article was deemed to sufficient
to satisfy the scholarship standard for plaintiffs
application to be promoted from Assistant Professor to
Associate Professor in 2010. Pl.'s Opp. at 7-8.
• Professor [XXXXX] sent
plaintiffs a congratulatory email on his presentation to the
faculty of "a well-developed draft" his Coast
Federal article, calling it "creative,
well-reasoned and effective as a teaching tool in
contracts" that "has teaching value for a diverse
audience." Pl.'s Opp. at 9. Also, the editors of the
University of Maryland Journal of Race, Religion, Gender and
Class, which published Coast Federal, provided
positive comments, and the article received honorable mention
from Contracts Prof Blog. Id. Further, external
reviewer [XXXXX] article described
the piece as "clearly the work of a mature scholar and
it authoritatively marks its author as a worthy addition to
the tenured faculty of any law school." Pl.'s Opp.
• Plaintiffs colleagues made positive comments on the
abstract for the HBCU Law Schools article, and
Associate Dean for Students [XXXXX]
nominated it for the Duke University Law and Society ...