Mawakana v. Bd. of Trs. of the Univ. of the D.C., Civil Action No. 14–2069 (ABJ)

• Decision Date: 28 March 2018
• Docket Number: Civil Action No. 14–2069 (ABJ)
• Citation: 315 F.Supp.3d 189
• Parties: Kemit MAWAKANA, Plaintiff, v. BOARD OF TRUSTEES OF The UNIVERSITY OF the DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 189

Kemit MAWAKANA, Plaintiff,

v.BOARD OF TRUSTEES OF The UNIVERSITY OF the DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 14–2069 (ABJ)

United States District Court, District of Columbia.

Signed March 28, 2018

Filed May 16, 2018

Richard A. Salzman, Heller, Huron, Chertkof & Salzman, PLLC, Cassandra Webster Lenning, Outten & Golden, LLP, Washington, DC, for Plaintiff.

Elisabeth L. Shu, Jason R. Waters, Yoora Pak, Wilson Elser Moskowitz Edelman & Dicker, LLP, McLean, VA, Robert Bruce Wallace, Wilson Elser Moskowitz Edelman & Dicker, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Kemit Mawakana¹ 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. § 2000e 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.

I. FACTUAL BACKGROUND

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 plaintiffs 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. 11,² ("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 Provost³ 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. Plaintiff's Employment

In 2006, plaintiff Remit 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:

[redacted]

II. PROCEDURAL BACKGROUND

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 plaintiffs 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").

III. STANDARD OF REVIEW

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...