Truelove v. TRUSTEES OF U. OF DISTRICT OF COLUMBIA, Civ. A. No. 89-2239-LFO.

• Decision Date: 11 July 1990
• Docket Number: Civ. A. No. 89-2239-LFO.
• Citation: 744 F. Supp. 307
• Parties: Alan J. TRUELOVE, Plaintiff, v. TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

744 F. Supp. 307

Alan J. TRUELOVE, Plaintiff, v. TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Defendant.

Civ. A. No. 89-2239-LFO.

United States District Court, District of Columbia.

May 3, 1990.

Dismissed with Prejudice July 11, 1990.

Alan J. Truelove, Falls Church, Fla., pro se.

Rachel Evans, Asst. Corp. Counsel, Washington, D.C., for defendant.

MEMORANDUM

OBERDORFER, District Judge.

In this action, plaintiff, suing pro se, charges that defendant has discriminated against him on the basis of race and national origin.¹ Plaintiff, a white male from England, is a full professor at the University of the District of Columbia. He asserts that defendant failed to evaluate him in a manner comparable to similarly situated black or Arab faculty members and that defendant has retaliated against him for asserting his rights to be free from discrimination. Defendant has filed two motions that are now pending: The first, filed on December 15, 1989, moves for dismissal of Count I of plaintiff's complaint, which charges that defendant's actions violate 42 U.S.C. § 1981. The second, filed on January 22, 1990, moves for dismissal or, alternatively, summary judgment on Count II of plaintiff's complaint, which charges that defendant's actions violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons stated in this Memorandum, an accompanying Order will grant defendant's motion to dismiss Count I of plaintiff's complaint and grant in part and deny in part defendant's motion to dismiss or, alternatively, for summary judgment on Count II of plaintiff's complaint.

I.

A.

The following facts are not in dispute. Plaintiff is a full professor of the Computer Information and Systems Science Department ("CISS Department") of defendant's College of Business and Public Management. Complaint ¶ 7; Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (Jan. 22, 1990) hereinafter "Motion to Dismiss II" at 4. Each year, an evaluation of all members of the CISS Department is conducted by its Department Evaluation and Promotion Committee ("Evaluation Committee") and the Department Chair. Complaint ¶ 12; Motion to Dismiss II at 5. For the 1986-87 academic year, the Evaluation Committee gave plaintiff an overall rating of "Unsatisfactory." Complaint ¶ 30; Motion to Dismiss II at 6. Plaintiff signed the evaluation form on April 6, 1988, indicating that plaintiff had notice of the "unsatisfactory" rating. Defendant's Motion to Dismiss, Exh. D at 3. Plaintiff did not directly appeal this evaluation according to the provisions established by the Third Master Agreement which governs relationships between the University and the faculty. See Motion to Dismiss II, Exh. C. at 29-31; Plaintiff's Amended Opposition at 5. Nor did he file a formal grievance with defendant regarding the evaluation process for more than 18 months. Plaintiff's Amended Opposition to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Apr. 10, 1990) hereinafter "Amended Opposition II" at 6. However, he did complain orally and in writing to members of defendant's administration. Complaint ¶ 32. Subsequently, on January 30, 1989, plaintiff received a letter from Rafael Cortada, the president of the university, stating that

you are to meet with your Dean to develop a specific plan to correct deficiencies resulting in the "Unsatisfactory" evaluation. If your evaluation for the 1988-89 academic year is "unsatisfactory", appropriate adverse action will be recommended under the provisions of the Master Agreement.

Complaint, Exh. P-3. No evaluation was conducted for the 1987-88 academic year. However, plaintiff received a satisfactory rating for the 1988-89 academic year. See Amended Opposition II at 3 n. 1.

In addition to receiving an "unsatisfactory" rating for the 1986-87 academic year, plaintiff has repeatedly been denied sabbatical leaves by the University. Complaint ¶ 41; Motion to Dismiss II at 8, Exh. G. Plaintiff applied for sabbatical leaves for the past four years, most recently for a semester of the 1989-90 academic year. Complaint ¶ 41; Motion to Dismiss II at 8, Exh. G. However, all his applications were rejected by the University-Wide Sabbatical Leave Review Committee ("Sabbatical Leave Committee"). Complaint ¶ 41; Motion to Dismiss II at 8.

Plaintiff contends that both the "unsatisfactory" rating by the Evaluation Committee and the rejections of his applications for sabbatical leave by the Sabbatical Leave Committee were the product of discrimination on the basis of race and national origin by black and Arab faculty members. Plaintiff asserts, moreover, that these actions were also the product of unlawful retaliation resulting from his testimony as a witness in another discrimination suit against defendant, Bachman v. District of Columbia, No. 86-0074 (D.D.C. file Jan. 13, 1986), his opposition to granting tenure to an allegedly unqualified black professor, and his opposition to the dismissal for discriminatory reasons of a white professor. Complaint ¶¶ 37, 39, 40, 55. Defendant disputes these assertions, claiming that plaintiff's evaluation and the rejections of his applications for sabbatical leave were based on nondiscriminatory reasons.

II.

Defendant's first motion to dismiss, filed on December 15, 1989, asserts that Count I of the complaint, alleging violations of 42 U.S.C. § 1981, must be dismissed. According to defendant, plaintiff's § 1981 claims fail because plaintiff asserts discrimination neither in the making of plaintiff's employment contract nor in its enforcement in the judicial process. Thus, defendant argues, the claims do not fall within the scope of § 1981 protection elucidated by the Supreme Court in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In that case, the Court held that although § 1981 applies to the formation of employment contracts, it does not extend to problems that may arise from the conditions of continuing employment. Plaintiff did not oppose defendant's motion to dismiss this Count. Accordingly, the motion will be treated as conceded and the accompanying Order will dismiss Count I of the complaint.

III.

Also pending is defendant's motion to dismiss, or, in the alternative, for summary judgment on Count II of plaintiff's complaint, filed on January 22, 1990. Count II, which asserts that defendant's actions violated Title VII, actually presents three different claims: 1. that the 1986-87 evaluation was conducted in a discriminatory manner; 2. that the denials of plaintiff's applications for sabbatical leave were discriminatory; and 3. that adverse actions against plaintiff were the product of retaliation. Defendant contends each of these claims must be dismissed. Plaintiff opposes this motion.

As the resolution of each of the three claims requires consideration of matters outside the pleadings presented by the parties, defendant's motion must "be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b)(6); see also Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978). Under this standard, judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In assessing whether the showing made is sufficient, the court must determine "not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

A.

Defendant first argues that the statutory time limit on Title VII claims bars review of plaintiff's 1986-87 evaluation. Defendant contends that because plaintiff signed the evaluation form indicating that he had received notice of the "unsatisfactory" rating on April 6, 1988, and then did not file his charge of discrimination with the Equal Employment Opportunity Commission until either March 24, 1989 or March 29, 1989,² the charge was filed in an untimely manner as to this issue. Plaintiff disputes defendant's contention that his charge was not timely filed by arguing that the time period should be deemed to commence later than on the date he learned of the "unsatisfactory" rating. He advances two alternative dates from which, he contends, the limitation period should be deemed to run: 1. November, 1988, when he discussed the evaluation with a member of defendant's administration and thereby allegedly became aware that the administration was reviewing the evaluation decision; and 2. January 30, 1989, when he received the letter from President Cortada and thereby allegedly learned that the administration's review had concluded. Plaintiff also appears to suggest that the Evaluation Committee decision is reviewable as part of a pattern of "continuing discrimination."

Title VII requires aggrieved persons to file a charge with the Equal Employment Opportunity Commission (EEOC) "within one hundred and eighty days after the alleged unlawful employment practice occurred ...," unless a charge is instituted within 300 days with a state or local agency that has a work sharing agreement with the EEOC. 42 U.S.C. § 2000e-5(e). The District of Columbia has such a work sharing agreement. See 29 C.F.R. § 1601.74. Therefore the 300-day limit applies in this case.

In determining when the "alleged unlawful employment practice" occurred that would trigger the limitations period, the Supreme Court has clearly stated that "the pendency of a grievance or some other method of collateral review of an employment decision, does not toll the running of the limitations period. The existence of careful procedures to...