MEHDI MOINI, Plaintiff, v. THOMAS J. LEBLANC, in his official capacity as President, George Washington University, Defendant.
Case No. 1:19-cv-03126 (TNM)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Dated: April 24, 2020
MEMORANDUM OPINION AND ORDER
George Washington University (the “University“) denied tenure to Mehdi Moini, Ph.D. Moini, proceeding pro se, alleges that this decision violated
I.
Moini describes himself as “a Middle Eastern (Iranian)” individual. Compl. ¶ 5, ECF No. 1. He holds a doctorate in chemistry from Michigan State University. Id. ¶ 24. From 1987 to 2014, he held several academic and research positions, including
In accepting the position, Moini agreed to “the conditions stated in the Faculty Code and Faculty Handbook.” Id. ¶ 12. The Code contains the criteria for tenure. Id. ¶ 13. As of 2015, it provided that “tenure is reserved for members of the faculty who demonstrate excellence in scholarship, teaching, and engagement in service and who show promise of continued excellence.” Id. The lynchpin of this case is the “excellence in teaching” criterion.
Moini alleges that he built a strong record in all areas—scholarship, teaching, and sеrvice. Id. ¶¶ 28-30. For example, he published nine peer-reviewed papers, collaborated with federal agencies, and gave presentations at local schools. Id. ¶¶ 28-29. And many colleagues and students have praised his teaching. Id. ¶ 30. But he acknowledges that student evaluations from a graduate seminar he taught were “relatively poor” and “below departmental averages.” Id. ¶¶ 2, 31.
This seminar is mandatory for graduate students, and Moini describes it as “quite demanding.” Id. ¶¶ 2, 10. For a time, he co-taught the course with a colleague, Professor Rowe, who “received similar negative student evaluations.” Id. ¶ 31. Soon after Rowe stepped down as a co-instructor, he received a promotion to Department Chair. Id. ¶¶ 26, 33.
Moini submitted his tenure application in September 2016, which triggered a multi-stеp review process. Id. ¶¶ 17, 32. First, a committee of tenured faculty in the Department of Forensic Sciences “unanimously” recommended tenure. Id. ¶ 35. This recommendation went to the Personnel Committee for the University‘s College of Arts and Sciences. Id. ¶ 36. The Personnel Committee was to provide its “independent concurrence or nonconcurrence” with the Department‘s recommendation and to identify any “compelling reasons” for nonconcurrence. Compl. Exs. at 29. It voted five to two against tenure, with two abstentions. Compl. ¶ 37. According to Moini, the Committee focused on the negative student evaluations from his graduate seminar. Id.
The next stop was the Dean of the College of Arts and Sciences. Id. Like the Personnel Committee, he disagreed with the Department‘s recommendation of tenure. Id. The Dean allegedly cited “a disaffected student‘s unhappy reaction to the [graduate seminar] as the deciding piece of evidence that Moini lacks excellence as a teacher.” Id. (quoting Compl. Exs. at 9).
The Provost also disagreed with the Department‘s recommendation of tenure. Id. He concluded that Moini had “not yet achieved the teaching standard commensurate with a . . . grant of tenure.” Id. ¶ 38. (quoting Compl. Exs. at 3).
Since the Provost did not concur with the Department‘s recommendation, he referred the matter to the Executive Committee of the Faculty Senate. Id.; Compl. Exs. at 39. This body voted against tenure, too. Compl. ¶ 39. Finally, the University President reviewed Moini‘s case for a “final decision.” Id. ¶ 37; Compl. Exs. at 39-40. He decided against tenure. Compl. ¶ 37.
So, after six levels of review, one body—the Dеpartmental Committee—recommended tenure. The subsequent five reviewers—the
Moini soon began a grievance process. Compl. ¶ 41. He first sought an informal resolution. Id.; Compl. Exs. at 44. The University offered to extend Moini‘s appointment by one semester, but Moini rejected this and brought a formal grievance. Compl. ¶ 41.
He made two allegations. First, he claimed that the University had violated the Faculty Code because it did not give him “sufficient notice” that his student evaluations were poor enough to put his tenure at risk. Id. Second, he complained that the denial of tenure was “arbitrary and capricious” because it was “primarily based on student evaluations of a one-credit graduate seminar course, ignoring all other teaching metrics.” Id. ¶ 43.
A three-member Hearing Panel reviewed Moini‘s grievance and upheld the denial of tenure by a split vote. Id. ¶ 44. For the panel majority, while there was “no serious challenge to his record of research and scholarship,” his teaching was “short of excellent.” Compl. Exs. at 6. Based “primarily” on the student evaluations from Moini‘s graduate seminar, the Panel concluded that he had “not demonstrated a readiness to adapt his teaching to the students he actually has.” Id. The dissenting member criticized the heavy reliance on the student evaluations. Id. at 7-9. He cited the College‘s own memorandum of guidance stating that “[s]tudent evaluations . . . are an imperfect tool for measuring teaching evidence and quality.” Id. at 7.
An Appeals Panel unanimously reversed the Hearing Panel‘s decision, finding it “seriously erroneous.” Compl. ¶ 46; Compl. Exs. at 53. In its view, the denial of tenure was “arbitrary and capricious” because it was “based solely on student evaluations of a one-credit hour required seminar course, with no other supporting documentation.” Compl. Exs. at 54. The record, it noted, included “letters from Dr. Moini‘s graduate students who secured good jobs upon graduation, praising Dr. Moini, along with acceptable student evaluations from [his] other courses, and favorable peer reviews of his teаching.” Id. So the Appeals Panel recommended granting him tenure. Id. at 53.
But that was not the end. The Provost has authority to reject the recommendation of the Appeals Panel, and he did so here. Compl. ¶ 49. Among the “compelling reasons” for doing so was the Code‘s “excellence in teaching” standard, which, in his view, the Appeals Panel had not applied correctly. Compl. Exs. at 687-91.
The Provost then forwarded Moini‘s grievance to the University‘s Board of Trustees for the final say. Compl. ¶ 53. The Board “voted to uphold the university‘s decision against tenure.” Compl. Exs. at 760. The University informed Moini of the Board‘s decision on September 19, 2018. Id.
The next year, on April 14, Moini sent an “initial inquiry” to the Equal Employment Opportunity Commission (“EEOC“). Id. at 763. He then filed a formal Charge of Discrimination on July 12. Def.‘s Mem. in Supp. of Mot. to Dismiss at 50 (“Def.‘s Mem.“), ECF No. 6-1. He alleged that the University had discriminated against him based on “nаtional origin.” Id. at 51. The EEOC soon mailed him a Notice of Right
Within three months, Moini sued. He claims violations of Title VII and the DCHRA (Count I), as well as
II.
The President moves to dismiss the Complaint under
In assessing plausibility, the Court may consider only “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017). And it must generally “accept as true all of the complaint‘s factual allegations and draw all reasonable inferences in favor of the plaintiff[].” Owens v. BNP Paribas, S.A., 897 F.3d 266, 272 (D.C. Cir. 2018). But the Court need not accept a complaint‘s factual allegations “insofar as they contradict exhibits to the complaint.” Id. at 272-73. Nor need it credit legal conclusions couched as factual allegations. Id. at 272.
The Court is mindful that Moini is proceeding without counsel. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). More, the Court must assess a pro se complaint “in light of all filings, including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (cleaned up).
III.
A.
The President contends that Moini‘s claims under Title VII and the DCHRA (Count I) аre untimely. Dismissal on this basis is appropriate when a claim is “conclusively time-barred” on the face of the Complaint. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). That is the case here. Indeed, the timing issue largely comes down to the proper application of a Supreme Court decision.
Start with Title VII. To sue under this statute, an individual must first file a charge with the EEOC “within [180] days after the alleged unlawful employment practice occurred.”
Ricks bears striking similarities to Moini‘s case. Just consider the question presented: “whether respondent, a college professor, timely complained under the civil rights laws that he had been denied academic tenure because of his national origin.” Id. at 252. The Tenure Committee at Delaware State College twice voted to deny tenure. Id. The Faculty Senate upheld the decision. Id. And in March 1974, the College‘s Board of Trustees “formally voted to deny tenure.” Id.
Unhappy with this decision, Ricks filed a grievance with the Board‘s Educational Policy Committee. Id. Meanwhile, the Board informed him on June 26, 1974, that “he would be offered a 1-year ‘terminal’ contract that would expire June 30, 1975.” Id. at 252-53. It referenced the рending grievance, explaining that if the Educational Policy Committee recommended granting tenure—and if the Board agreed with the recommendation—then Ricks would get tenure after all. Id. at 253 n.2. But three months later, the Board notified Ricks that “it had denied his grievance.” Id. at 254.
Ricks filed a charge with the EEOC in April 1975. Id. He then sued, bringing a Title VII claim. Id. Ruling on a motion to dismiss, the district court held that this claim was untimely. Id. at 254-55. The limitations period began to run on June 26, 1974, and Ricks had filed his EEOC charge more than 300 days after that date. Id. at 255, 260 n.13.
The Supreme Court agreed, reversing the Third Circuit‘s contrary ruling. Id. at 256. The first task was to identify “the alleged unlawful employment practice.” Id. at 257. It concluded that Ricks alleged unlawful denial of tenure, not unlawful termination of employment. Id. at 257-58; see also id. at 262-63 (Stewart, J., dissenting) (agreeing with the majority “that the unlawful employment practice alleged in the . . . complaint was a discriminatory denial of tenure, not a discriminаtory termination of employment“).
To plead the latter, Ricks would have needed to allege that the College terminated him in a discriminatory manner relative to other professors who had been denied tenure. Id. at 258 (majority opinion). But he did not. Id. Indeed, Ricks‘s termination was simply an “inevitable . . . consequence of the denial of tenure.” Id. at 257-58. So Title VII‘s clock began not when this consequence came to pass, but “at the time the tenure decision was made and communicated to Ricks.” Id. at 258.
The next task was to identify this date. Id. at 259. It came down to two candidates. One option was September 12, 1974, when “the Board notified Ricks that his grievance had been denied.” Id. at 260. The other option was June 26, 1974, when “the Board notified Ricks that he would be offered a ‘terminal’ contract for the 1974-1975 school year.” Id. at 261-62.3 The Court rejected the September 12 date for the June 26 date.
In support of the September 12 date, the EEOC, as amicus, offered two arguments. Id. at 260. First, it urged that the decision to deny tenure “was only an expression of intent that did not become final until the grievance was denied.” Id. Indeed, the June 26 letter “explicitly held out” the possibility that Ricks “would receive tenure if the Board sustained his grievance.” Id. The Court acknowledged this. Id. at 261. But it still found that “[e]ntertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative.” Id. More, “[t]he grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.” Id.
The EEOC also maintained that “the pendency of the grievance period should toll the running of the limitations period[].” Id. But this argument failed too. It was settled 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[].” Id.
So for these reasons, September 12—the day that Riсks received a final decision on his grievance—was not when Title VII‘s limitations period began to run.
Turning to the June 26 date, the Court observed that by then, “the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee‘s recommendation; and the Board of Trustees formally had voted to deny Ricks tenure.” Id. at 262. “In light of this unbroken array of negative decisions,” the district court “was justified in concluding that the College had established its official position—and made that position apparent to Ricks—no later than June 26, 1974.” Id. His EEOC charge was thus untimely, since he filed it more than 300 days after June 26. Id. at 260 n.13.
Ricks governs here. The only unlawful employment practice that Moini alleges is the denial of tenure. Compl. ¶ 1; see Pl.‘s Opp‘n at 40. He does not allege unlawful termination of employmеnt, since he does not claim that the University terminated him in a discriminatory manner relative to other professors who had been denied tenure. See Pl.‘s Opp‘n at 16, 26-27; Ricks, 449 U.S. at 258. So Title VII‘s clock began to run “at the time the tenure decision was made and communicated to [Moini].” Ricks, 449 U.S. at 258.
That occurred on June 22, 2017, when the Provost notified Moini that “the decision has been made not to extend tenure” and that his appointment for the 2017-2018 academic year would be “terminal.” Compl. Exs. at 5; see Ricks, 449 U.S. at 261-62 & n.17. By June 22, five reviewers had decided against tenure, including the University President, whose decision on the matter is “final,” per the Faculty Code. Compl. Exs. at 40. So the
This is so even though Moini filed a grievance challenging the tenurе decision. See Ricks, 449 U.S. at 260-61. The existence of a grievance process did not make the tenure decision “tentative.” Id. at 261. And “the pendency of a grievance . . . does not toll the running of the limitations period[].” Id. So the conclusion of the grievance process was not “when the tenure decision was made.” Id. at 259, 261.
Yet Moini insists that the relevant date is September 19, 2018, when he received a final decision from the Board of Trustees on his grievance. His arguments are unpersuasive.
For one, he suggests that under the Faculty Code, a decision on tenure does not become “final” until the end of the grievance process. See Pl.‘s Opp‘n at 27; Pl.‘s Proposed Sur-Reply at 3-4.4 This argument, which conflates the tenure review process and the grievance process, fails for two reasons.
First, it contradicts the Faculty Code, which he attached as an exhibit to his Complaint. The Court need not accept a plaintiff‘s factual allegations “insofar as they contradict exhibits to the complaint.” Owens, 897 F.3d at 272-73. The Faculty Code cleanly distinguishes between the tenure review process and the grievance process. See Compl. Exs. at 28-30, 36. In the former, the Provost‘s decision is normally “final,” with exceptions. Id. at 39. One exception is when, as here, the College‘s Personnel Committee, the College‘s Dean, and the Provost all disagree with the Department‘s recommendation. Id. When this happens, the tenure application goes to the Faculty Senate and then the President, who makes “a final decision.” Id. at 39-40. If the President “approve[s] tenure,” then the decision is “transmitted to the Board of Trustees, which has the authority to confer tenure.” Id. at 40. Thus, since the President did not approve Moini‘s tenure, the Board was not involved in the tenure review process, and the President‘s adverse decision was “final.” See Compl. ¶¶ 37-40; Compl. Exs. at 40.5
So under the Faculty Code, the grievance process is simply a way to mount a collateral attack on the President‘s final decision—it does not make that decision any less final. See Compl. Exs. at 28-30, 36; Ricks, 449 U.S. at 261. Moini focuses on a paragraph in the Code‘s
This leаds to the second independent reason Moini‘s argument here falls short: under Ricks, it fails as a matter of law. In suggesting that a decision in the tenure review process does not become “final” until the end of the grievance process, he asks the Court to focus on the final decision in the grievance process. But Ricks was categorical that the final decision in the grievance process is not the proper focal point. A grievance procedure, “by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.” Id. at 261 (first emphasis added); see also id. at 261 n.15 (“Mere requests to reconsider . . . cannot extend the limitations periods applicable to the civil rights laws.“). Moini points to no material differences between the grievance process here and the one at issue in Ricks, nor are any apparent. See Pl.‘s Opp‘n at 27; Pl.‘s Proposed Sur-Reply at 3-4. Nor does he claim that the process he went through was not a “grievance process“—he uses that precise term. Compl. ¶ 41. Thus, since Ricks—at the motion to dismiss stage—rejected the grievance process as the proper focal point, see 449 U.S. at 254, 260-61, the Court will do the same here.6
Moini also contends that the Court should use September 19 because the EEOC “accepted” that date. Pl.‘s Opp‘n at 27. This argument runs headlong into Ricks. If the question was what date the EEOC had “accepted,” the Court would not have engaged in any analysis of “when the tenure decision was made and Ricks was notified.” 449 U.S. at 259. It would have just asked what date the EEOC had “accepted.” But it did not. See id. at 259-62. So the date that Moini wrote on his EEOC form—and any date the EEOC “accepted“—does not control.
Finally, Moini alleges that he did not obtain “most” evidence of the University‘s discrimination against him until the grievance proсess. Compl. ¶¶ 41, 55; see also Pl.‘s Proposed Sur-Reply at 4 (“[A]s discussed in the Complaint, the EEOC [charge] and this Complaint were filed when abundant evidences of racial discrimination by the University against the Plaintiff . . . were obtained during the grievance process[.]“). Moini does not explain why this would mean that the limitations period began on September 19. Perhaps he is intimating that he was not fully aware of the alleged discrimination before the grievance process concluded. But as the President points out, Moini suggests
In any event, other judges in this District have concluded that “[n]otice or knowledge of discriminatory motivation is not a prеrequisite for a cause of action to accrue.” Fortune v. Holder, 767 F. Supp. 2d 116, 122 (D.D.C. 2011) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 558 (10th Cir. 1994)). Rather, “it is knowledge of the adverse employment decision itself that triggers the running of the statute of limitations.” Id. Courts of appeals agree. See Hamilton v. 1st Source Bank, 928 F.2d 86, 88-89 (4th Cir. 1990) (“To the extent that notice enters the analysis, it is notice of the employer‘s actions, not the notice of a discriminatory effect or motivation, that establishes the commencement of the pertinent filing period.“); Merrill v. S. Methodist Univ., 806 F.2d 600, 604-05 (5th Cir. 1986) (same).
Indeed, Merrill reached this conclusion by relying on Ricks. See 806 F.2d at 605. The plaintiff in Merrill proposed that the court “focus on the date the victim first perceives that a discriminatory motive caused the act, rather than the actual date of the act itself.” Id. But this proposal was “inconsistent” with Ricks, the “leading case on this subject.” Id. It clashed with Ricks‘s teaching that “the Title VII limitations period is partially designed to ‘protect employers from the burden of defending claims arising from employment decisions that are long past.‘” Id. (quoting Ricks, 449 U.S. at 256-57); accord Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990) (“The discovery rule is implicit in the holding of Ricks that the statute of limitations began to run ‘at the time the tenure decision was made and communicated to Ricks[.]‘” (quoting Ricks, 449 U.S. at 258)).
Thus, because June 22, 2017, was when the University notified Moini that it had denied him tenure and that his appointment for the upcoming academic year would be “terminal,” that is when “the alleged unlawful employment practice occurred.”
From here, the analysis is straightforward. Moini filed his charge with the EEOC no earlier than April 14, 2019. Compl. Exs. at 763.7 That is well more than 300 days after June 22, 2017. So Moini‘s Title VII claim is time-barred, and the Court will dismiss it. See
B.
As for
The one-year limitations period for the DCHRA began to run on June 22, 2017. The D.C. Court of Appeals generally relies on decisions of federal сourts in Title VII cases when applying the DCHRA. See Daka, Inc. v. Breiner, 711 A.2d 86, 94 (D.C. 1998). Indeed, that court has expressly followed Ricks many times. It has done so to conclude that the one-year limitations period for wrongful termination claims begins to run when the employee is “notified unequivocally of his termination.” Barrett v. Covington & Burling LLP, 979 A.2d 1239, 1252 (D.C. 2009) (quoting Stephenson v. Am. Dental Ass‘n, 789 A.2d 1248, 1252 (D.C. 2002) (also following Ricks)). And it has relied on Ricks to hold that “review of the final termination through grievance proceedings did not make the termination less final, nor did plaintiff‘s availing herself of grievance procedures toll the time for statutory action.” Jones v. Howard Univ., 574 A.2d 1343, 1346-47 & n.5 (D.C. 1990) (cleaned up).
Barrett, Stephenson, and Jones did not even involve a denial-of-tenure allegation, yet the D.C. Court of Appeals followed Ricks in those cases. So it would surely do so in a case that does involve that allegation. Thus, the limitations period for Moini‘s DCHRA claim began to run when Title VII‘s limitations period began to run under Ricks. That date is June 22, 2017.
Moini brought his DCHRA claim on October 16, 2019. That was far too late. It makes no difference that Moini filed an EEOC charge. He did not do so until April 2019 at the earliest, after the one-year limitations period expired in June 2018. And in any event, the rule is that ”timely filing a claim with the [EEOC]” tolls the limitations period for a DCHRA claim. Estenos, 952 A.2d at 882 (emphasis added). As explained in the Title VII discussion, Moini did not “timely” file his EEOC charge. For these reasons, Moini‘s DCHRA claim is untimely and the Court will dismiss it. See
Since the Court is dismissing Moini‘s Title VII claim and his DCHRA claim, it will dismiss Count I of the Complaint. See Compl. ¶ 84.
C.
The University President next urges the Court to dismiss Moini‘s claim under
Under
The
On the first element, the President argues that Moini has alleged discrimination because of national origin, rather than discrimination because of race. Def.‘s Mem. 33-34. The President believes that Moini‘s self-description as “Middle Eastern” and “Iranian” is about national origin, not race. Id. at 33. And because
The reality is not so clear-cut. Once again, we have a Supreme Court decision on point: Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). The plaintiff in that case—an associate professor—was “a citizen of the United States born in Iraq.” Id. at 606. The College denied him tenure, so he filed a pro se complaint raising claims under Title VII and
This time, the Supreme Court agreed with the Third Circuit. Id. The Court had “little trouble in concluding” that
Given Saint Francis College, Moini has pled “racial discrimination” under
The plaintiff alleged that his former employer treated “Americans” differently from “foreign nationals.” Id. For Judge Bates, a distinction between “Americans”
Judge Bates‘s opinion is thorough and well-reasoned. Moini‘s
Moini also describes other professors—who the University allegedly treated more favorably—as “Caucasian,” “white,” and “of European descent.” Compl. ¶¶ 1, 7, 57, 60, 88. Use of these terms suggests racially tinged discrimination within the meaning of
And unlike Ndondji, Moini is proceeding pro se. The Supreme Court drew a subtle distinction in Saint Francis College. A plaintiff must prove discrimination based on his “ancestry or ethnic characteristics,” rather than discrimination based on “the place or nation of his origin.” 481 U.S. at 613. The two concepts are connected. Cf. id. (“It is clear . . . that the civil rights sections of the 1870 Act provided protection for immigrant groups such as the Chinese.“). The Court is mindful of the “less stringent standards” that apply to pro se complaints. Erickson, 551 U.S. at 94. Given these lower standards—and given that Moini does make some allegations suggesting discrimination because of “ancestry or ethnic characteristics“—he has done just enough to plead a
The Court does not find it dispositive that Moini checked the “national origin” box on his EEOC form instead of the “race” box. The President cites no authority suggesting that a pro se plaintiff forfeits a
The President‘s next argument for dismissal focuses on the second element of a
The Court disagrees. The federal rules set forth “liberal pleading standards.” Erickson, 551 U.S. at 94. And pro se complaints are subject to even less stringent standards. Id. Given the low bar, Moini has done enough to plead but-for causation.
The essence of Moini‘s Complaint is that the University denied him tenure on the pretext of his poor student evaluations, when the real reason was his ancestry or ethnic characteristics. See Compl. ¶¶ 1, 5, 57, 60. He makes some allegations that, liberally construed, support this claim. For example, he asserts that “100%” of the tenured professors in the Department of Forensic Sciences are, unlike him, “Caucasian” and “of European descent.” Id. ¶¶ 7, 57. He observes that denying him tenure maintained this status quo. Id. ¶ 57. He also offers Professor Rowe as a comparator. Rowe received a promotion to Department Chair, even though he had “received similarly poor student evaluations” from the same graduate seminar. Id. More generally, Moini alleges “a toxic atmosphere of racism and bias” at the University. Id. ¶ 1. And “[w]hile the University President and Provost were well aware” of this racism, “they ignored its effects on teaching evaluations of minority faculty.” Id. ¶ 59.
Moini‘s allegations also plausibly suggest that the stated reason for denial of tenure—his poor student evaluations—was pretextual. His tenure application went through six levels of review, and his grievance went through four levels. Most of his reviewers recommended against tenure, but not all. The Dеpartmental Committee “unanimously” recommended tenure. Id. ¶ 35. The Appeals Panel was also unanimous in voting to uphold Moini‘s grievance. Id. ¶ 46; Compl. Exs. at 53. This Panel found it troubling that others had relied so heavily on the poor student evaluations. Compl. Exs. at 54. So too did the dissenting member of the initial Hearing Panel. Id. at 7-9. That dissenter cited an internal memorandum for the College of Arts and Sciences stating that “[s]tudent evaluations . . . are an imperfect tool for measuring teaching evidence and quality.” Id. at 7. That could be relevant. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 n.3 (D.C. Cir. 2008) (noting that an employee can “try to cast doubt on an employer‘s asserted reason” by pointing to “the employer‘s failure to follow established procedures or criteria“).
To be clear, the Court is not saying that Moini will ultimately be able to prove his case. Far from it. He has his work cut out for him. For example, it is not clear that Rowe is an appropriate comparator. Moini invokes the University‘s decision to promote Rowe to Department Chair. Compl. ¶ 57. But the standards governing that decision might differ from the standards governing tenure. And differences would be relevant. See Burley v. Nat‘l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015) (“A plaintiff must . . . demonstrate that all of the relevant aspects of his employment situation were nearly identical to those of the other employee.” (cleaned up)).
More, there is the issue of pretext. Even if the University had no good reason to deny Moini tenure, that need not mean its reason was pretextual. See Fischbach v. D.C. Dep‘t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“[T]he issue is not the correctness or desirability of the reasons offered . . . but whether the employer honestly believes in the reasons it offers.” (cleaned up)). The pleading stage is аn especially low bar for pro se plaintiffs, and today the Court holds only that Moini‘s
D.
The Court will also not dismiss any of Moini‘s contract claims at this stage (Counts II and IV). The issues surrounding these claims are fact-bound. Questions of what obligations the University had and whether it breached any of those obligations depend heavily on how to interpret the Faculty Code. The Court thinks it best to wade into these issues—if ever—at summary judgment.11 For now, the Court holds only that Moini has plausibly alleged one or more contract claims, particularly given his pro se status. Erickson, 551 U.S. at 94.
To state a claim for breach of contract under D.C. law, a plaintiff must allege: “(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.” Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). The statute of limitations for these clаims is three years.
First, Moini alleges a breach based on the University‘s failure to provide him with enough notice of the concerns about his teaching. Compl. ¶¶ 86, 90. The President urges that Moini‘s exhibits “refute” his own allegations on this point. Def.‘s Mem. at 40. For example, the President points to faculty evaluations that Moini received before he applied for tenure. Id. But some notice does not necessarily mean enough notice. This issue requires closer attention to what communications the University had with Moini about his teaching and what communications—if any—the Faculty Code requires.
Second—and relatedly—Moini alleges that he did not receive a “mid-tenure review.” Compl. ¶¶ 16, 79. The President says this claim is time-barred under D.C.‘s threе-year statute of limitations because it would have accrued no later than September 2015—“midway between his start date of January 1, 2014 and the end of his initial appointment on June 30, 2017.” Def.‘s Mem. at 40-41. But the President‘s unstated assumption here is that a “mid-tenure review” must occur by the exact midway
Third, Moini alleges that denying him tenure was an “arbitrary and capricious” action, which the Faculty Code forbids. Compl. ¶ 2. The President stresses that courts “generally give deference” to the decisions that universities make, including tenure decisions. Def.‘s Mem. at 42 (citing Brown v. George Wash. Univ., 802 A.2d 382, 385 (D.C. 2002)). Even so, Moini has made a plausible allegation of an “arbitrary and capricious” decision. For example, recall that the Appeals Panel and the dissenting member of the Hearing Panel found it troubling that others had relied heavily on the student evaluations. See supra Section III.B. At summary judgment, the Court will be in a better position to consider how much deference to give the University.
The President also seeks dismissal of any other “sundry” contract claims that Moini alludes to in his Complaint. Def.‘s Mem. at 44-47. These include allegations that the University failed to provide “metrics for measuring teaching excellence” and that it did not follow its own procedures during the grievance process. Compl. ¶ 3. The Court will not parse these allegations now. They are intertwined with Moini‘s other contract claims. More, they are fact-bound and touch on fine details of the Faculty Code. See Def.‘s Mem. at 45-46.
The President urges the Court to dismiss some of these contract claims because, at the very least, Moini suffered no damages. Id. He contends that under D.C. law, proof of actual damages is an element of a contract claim. Id. at 45 & n.30. This may not be correct. See Wright v. Howard Univ., 60 A.3d 749, 753 (D.C. 2013) (“Even where monetary damages cannot be proved, a plaintiff who can establish a breach of contract is entitled to an award of nominal damages.“). At best, there is a conflict within the caselaw on this question. Compare id., with Osbourne v. Capital City Mortg. Corp., 727 A.2d 322, 324-25 (D.C. 1999) (“[A]ppellants’ prima facie case for breach of contract . . . required some proof of damages.“). The Court sees no reason to weigh in on this potential conflict now.
IV.
For these reasons, it is hereby
ORDERED that Defendant‘s [6] Motion to Dismiss is GRANTED IN PART and DENIED IN PART; it is further
ORDERED that Count I of Plaintiff‘s [1] Complaint is DISMISSED; and it is further ORDERED that Defendant shall file a responsive pleading to Plaintiff‘s [1] Complaint on or before May 8, 2020. See
SO ORDERED.12
Dated: April 24, 2020
TREVOR N. McFADDEN, U.S.D.J.