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Mawakana v. Board of Trustees of The University of District of Columbia

United States District Court, District of Columbia

March 28, 2018




         Plaintiff Kemit Mawakana[1] 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 application.

         Defendant has moved for summary judgment on these claims. For the reasons set forth below, the Court will grant defendant's motion.


         Tenure 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.

         A. The University's Performance and Tenure Review Process

         A 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, [2] ("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 14.

         For 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.

         A FERC 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.

         For 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.

         Once 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[3] 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 ¶ 26.[4]

         B. Plaintiffs Employment

         In 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.

         Plaintiff 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.

         To satisfy the scholarship criteria of the tenure review process, [5] plaintiff submitted four articles with his application:

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. 44; and
Ending the Disappearing Act of Affordable Housing in the District of Columbia, 42 J. D.C. Bar Ass'n (2011) ("Disappearing Act”), Def's Ex. 45.

Def's SOF ¶ 96; Pl.'s SOF ¶ 96.

         The evidence shows that plaintiff received the following performance reviews and feedback during his employment at the law school:



         Plaintiff 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.");[6] Def.'s Reply in Supp. of Def.'s Mot. (Sealed) [Dkt. # 49] ("Def.'s Reply").


         Summary 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).

         The 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).

         IV. ANALYSIS

         Defendant 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.

         A. Race Discrimination Claims under Title VII of the Civil Rights Act and D.C. Human Rights Act

         Title 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. 2004).

         At the 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).

         This 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).

         A Title 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).

         "If 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).

         1. Plaintiff Fails to Overcome the Heightened Deference Accorded to Academic Decisions.

         These 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.").[7] 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").

         Indeed, 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.

         Plaintiff 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. at 9-10.
• 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 ...

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