Brown v. District of Columbia ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHANIE Y. BROWN, )
)
Plaintiff, )
)
v. ) Civil Case No. 12-799 (RJL)
)
DISTRICT OF COLUMBIA et al., )
, F1LEn
D€f€lldallf$. ) 2 g
r}'-"’ C|erk, U.S. Dist_rict_& Bankruptcy
bollrts forma D|Sil'lCt 01 CUiUmbia
(January 35 , 2013) [#9]
Plaintiff Stephanie Yvonne BroWn ("plaintiff" or "Brown") brings this action
against the University of the District of Columbia David A. Clarke School of Law
("DCSL"), as well as the University of the District of Columbia’s Board of Trustees (the
"Board") and President Allen L. Sessoms ("President Sessoms") (collectively,
"defendants"), seeking damages for breach of contract, breach of the covenant of good
faith and fair dealing, wrongful ter“mination, race and gender discrimination, negligent
supervision and negligent infliction of emotional distress. Before the Court is
defendants’ Motion to Dismiss the complaint pursuant to Federal Rule of Civil Procedure
l2(b)(6). Upon consideration of the parties’ pleadings, relevant law, and the entire
record therein, the defendants’ Motion to Dismiss is GRANTED.
BACKGROUND
Over the past twenty-five years, plaintiff has held a variety of administrative and
academic positions at the University of the District of Columbia ("UDC"), the most
recent of which was an associate professorship of law at DCSL. Am. Compl. jl l, ECF
No. 6. On January 5, 2009, plaintiff applied for tenure and promotion to a hall
professorship position at the law school. Id. \l l4.
DCSL’s Faculty Evaluation and Retention Committee ("FERC") met on May 14,
2009 to discuss plaintiffs application. Id. Voting in favor of recommending tenure,
FERC subsequently forwarded its approval to Katherine S. Broderick, Dean of DCSL, a
few days later. Id. Dean Broderick was reluctant, at first, to endorse FERC’s tenure
recommendation due to plaintiffs lack of scholarship, and even suggested that FERC
withdraw plaintiffs tenure application from consideration. Ia’. 111 l7, 20. When FERC
updated the application to include a newly-announced publication of one of plaintiffs
articles, however, Dean Broderick changed her mind, endorsed FERC’S tenure
recommendation, and transmitted it to then Interim Provost and Vice President for
Academic Affairs Graeme Baxter ("Provost Baxter") on December 8, 2009. Id M
22-24.
Eighteen months later, on June 6, 2011, Provost Baxter informed plaintiff, in
writing, that her tenure application had been rej ected, and that the 201 l-20 12 academic
year would be her last as a member of DCSL’s law faculty. Id. 11 27; Defs.’ Mot. to
Dismiss ("Defs. Mot."), Ex. ll, ECF No. 9. Although Provost Baxter later informed
plaintiff, in writing, that she had referred the tenure matter to UDC President Allen
Sessoms for his review, President Sessoms agreed with Provost Baxter’s decision to deny
plaintiff tenure. Am. Compl. 1111 29, 30. Accordingly, in October 201 l, President
Sessoms ratified Provost Baxter’s denial of tenure, refused to forward plaintiffs
application to the Board for its consideration, and notified plaintiff, in writing, of his
decision. Id.
On May 2, 2012, plaintiff received a letter from Provost and Vice President for
Academic Affairs Ken Bain, informing her that, consistent with Provost Baxter’s June
2011 letter, plaintiffs employment at DCSL would officially conclude at the end of the
2011-2012 academic year, specifically on May 15, 20l2. Id. 1] 55; Pl.’s Mot. for PI
("Pl.’s PI Mot."), Ex. 6, ECF Nos. l-3, 2. Seven days later, on May 9, 2012, plaintiff
brought an action against defendants in the D.C. Superior Court, requesting, among other
things, a TRO or preliminary injunction to thwart her dismissal, as well as to enable the
Board to consider her tenure and promotion application. See Notice of Removal
("Removal Not."), ECF No. l; Pl.’s Mot. for TRO ("Pl.’s TRO Mot."), ECF Nos. l-2, 2;
Pl.’s PI Mot. On May l7, 2012, defendants removed the action to this federal court, see
Removal Not. at l, and on May 2l, 2012, by agreement of the parties, defendant District
ofColumbia was voluntarily dismissed from the case, see Stip. of Dismissal, ECF No. 3,
with prejudice
At plaintiffs request, this Court converted plaintiffs motion for a TRO or
preliminary injunction into one seeking only a preliminary injunction, and set a date to
hear oral argument for a preliminary injunction. See Civ. Case No. 12-799, Minute
Entry, May 22, 20l2. After briefing was completed and oral argument was held, this
Court found that plaintiff had failed to establish the requisite likelihood of irreparable
harm to warrant a preliminary injunction and denied plaintiff s request for injunctive
relief See Civ. Case No. 12-799, Minute Entry, June 12, 2012; Brown v. Dist. of
Columbia, No. 12-799, 2012 WL 3727177, at *5 (D.D.C. Aug. 27, 20l2).
Defendants moved to dismiss this action on June 5, 20l2. See Defs.’ Mot. For
the following reasons, the defendants’ motion is granted.
LEGAL STANDARD
The defendants move to dismiss the amended complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure on the ground that it fails to state a claim upon
which relief can be granted. In evaluating the defendants’ Motion to Dismiss, the Court
must "treat the complaint’s factual allegations as true" and "grant plaintiff the benefit of
all inferences that can be derived from the facts alleged." Sparrow v. Um'ted Air Lz``nes,
Inc., 216 F.3d llll, 1113 (D.C. Cir. 2000) (internal quotation marks and citation
omitted).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a forrnulaic
recitation of the elements of a cause of action will not do." Bell Atlanlic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (intemal quotation marks and
citations omitted). Rather, the complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (intemal quotation marks and citation omitted). "[T]he court
need not accept inferences drawn by plaintiff[] if such inferences are unsupported by the
facts set out in the complaint." Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). Indeed, where the court cannot infer more than the mere possibility of
misconduct from the facts, "the complaint has alleged-but it has not shown-that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal quotation marks and
citation omitted). However, the court may take into consideration "any documents either
attached to or incorporated in the complaint and matters of which [the court] may take
judicial notice." EEOC v. St. Francis Xavier Pqrochz``al Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997).
ANALYSIS
Plaintiff alleges in her amended complaint that the defendants are liable for a
variety of torts, contract, and civil rights violations. See generally Am. Compl. For the
reasons stated below, the Court agrees with defendants DCSL, the Board, and President
Sessoms that plaintiffs claims against President Sessoms, in his individual and official
capacity, should be dismissed and plaintiffs amended complaint fails to state a claim
upon which relief can be granted.
I. Plaintiff’s Claims Against President Sessoms
Plaintiff names Allen L. Sessoms, UDC President, as a defendant in this case, in
both his official and individual capacities See Am. Compl. 11 3. Despite a lack of
clarity in the amended complaint as to which claims the plaintiff is asserting against
which defendant, the Court presumes that plaintiff intends to bring claims of race and
gender discrimination under the District of Columbia Human Rights Act ("DCHRA"),
negligent infliction of emotional distress and a violation of 42 U.S.C. § 1981 against all
defendants, including President Sessoms. See id. 1111 73-84, 92-94.1
Defendants argue that plaintiffs suit against President Sessoms in his official
capacity is redundant of her suit against the Board. See Defs.’ Mem. in Supp. of Mot. to
Dismiss ("Defs.’ Mem.") at 15, ECF No. 9. An official capacity suit "generally
represent[s] only another way of pleading an action against an entity of which an officer
is an agent." Monell v. New York Cz``ly Dep ’t ofSocial Servs., 436 U.S. 658, 690 n.55
(1978). Because "[i]t is not a suit against the official personally, for the real party in
interest is the entity," an official capacity suit is, "in all respects other than name, to be
l Although plaintiff s negligent supervision claim does not specify which of the
defendants it is being asserted against, the facts alleged thereunder relate solely to DCSL
and the Board’s negligent supervision of the UDC administration, and fails to plead facts
regarding any negligent supervision by President Sessoms. See Am. Compl. 1[11 85-91.
6
treated as a suit against the entity." Kem‘ucky v. Graham, 473 U.S. 159, 166 (1985)
(citation omitted) (emphasis in original). Accordingly, plaintiff s claims against
President Sessoms in his official capacity will be treated as claims against the Board.
In addition, defendants contend that plaintiffs individual capacity claims against
President Sessoms should be dismissed "because he was acting within the scope of his
authority and therefore has qualified immunity." See Defs.’ Reply in Supp. of Mot. to
Dismiss ("Defs.’ Reply") at 5-6, ECF No. 16. Due to plaintiffs failure, in her
opposition, to counter any of the defendants’ assertions regarding plaintiffs individual
capacity claims against President Sessoms, plaintiff concedes the defendants’ arguments.z
Consequently, plaintiffs suit against President Sessoms in his individual capacity is also
dismissed.
II. Plaintiff’s Claims Against DCSL and the Board
a. Breach of Contract
Plaintiff alleges in Count 1 of her amended complaint that by allowing Provost
Accordingly, this Court construes plaintiffs negligent supervision claim as being asserted
against DCSL and the Board, but not President Sessoms.
2 See Twelve John Does v. Dist. ofColumbl'a, 117 F.3d 57l, 577 (D.C. Cir. 1997)
("[w]here the district court relies on the absence of a response as a basis for treating the
motion as conceded, we honor its enforcement of the rule"); Buggs v. Powell, 293 F.
Supp. 2d 135 , 141 (D.D.C. 2003) ("[i]t is understood in this Circuit that when a plaintiff
files an opposition to a dispositive motion and addresses only certain arguments raised by
the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded"); Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002); LocalRu1es of
the U.S. Dist. Court for the Dist. of Columbia, LCvR 7(b) ("If . . . a[n] [opposing]
memorandum is not filed within the prescribed time, the Court may treat the motion as
7
Baxter and President Sessoms "to impede [p]laintiff s tenure review and promotion
process and ultimately preclude [the] Board[’s] . . . consideration of [p]laintiffs tenure
application," defendants DCSL and the Board "violated the [Faculty] Handbook[],"
thereby "breach[ing] [p]laintiff s contractual rights." Am. Compl. 1111 59-62. In
addition, plaintiff contends that Dean Broderick failed to "advise[] the Board and
President Sessoms of the state of the law and that any final consideration by the Provost
and/or the President of [p]laintiff s tenure and promotion application was prohibited," id.
1161, and that defendants DCSL and the Board’s alleged breach caused her to "suffer[]
considerable economic harm . . . including loss [of] wages, loss [of] promotion, back and
front pay, and other benefits." Id. 11 63. Defendants DCSL and the Board argue that
plaintiffs claim for breach of contract should be dismissed because she fails to allege
facts establishing the necessary elements of a binding, enforceable agreement between the
parties, and because there is no breach. See Defs.’ Mem. at 18-24. 1 agree.
To state a claim for breach of contract, 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." lhebereme v. Capz'tal One, NA., 730 F.
Supp. 2d 40, 47 (D.D.C. 2010) (quoting Tsz'ntolas Really Co. v. Mena’ez, 984 A.2d 181,
187 (D.C. 2009)). Under District of Columbia law, a valid and enforceable contract
exists where there is "both (1) agreement as to all material terrns, and (2) intention of the
conceded").
parties to be bound." Kramer Assocs., Inc. v. Ikam, Ltd., 888 A.2d 247, 251 (D.C. 2005)
(quoting Georgez‘own Entm ’z‘ Corp. v. Dist. of Columbia, 496 A.2d 587, 590 (D.C. 1985))
(alteration in original). The party claiming the existence of an enforceable contract bears
the burden of demonstrating that the parties entered into one. Ponder v. Chase Home
Fz``n., LLC, 666 F. Supp. 2d 45, 48 (D.D.C. 2009). "ln the absence of a valid agreement,
a breach of contract claim cannot be sustained." Cambria'ge Holdz``ngs Grp., Inc. v. Fed.
Ins. C0., 357 F. Supp. 2d 89, 94 (D.D.C. 2004) (citation omitted); Strauss v. NewMar/cet
Global Consultz'ng Grp., LLC, 5 A.3d 1027, 1033 n.3 (D.C. 2010) ("A court cannot
enforce a contract unless it can determine what it is."). Plaintiff utterly fails to do so
here.
While plaintiff contends that the Faculty Handbook is a "binding contract between
law faculty members and the law school" that obligates the Board_not the President_to
make the final decision with regard to tenure applications, see Am. Compl.1111 10-12, 36,
59-62, the amended complaint fails to allege the facts necessary to show that plaintiff and
DCSL intended to be bound by the Faculty Handbook, or that the parties mutually
assented to its specific terms. Indeed, the Faculty Handbook clearly states that it is
"provided as a reference for all faculty members" and it is "not intended to be a substitute
for the District of Columbia Law Rules (CDCR 'l``itle 8A), nor is it intended to provide a
detailed compendium of various operating rules and procedures." See Defs.’ Mot., Ex. 9
at i (Preface).
Moreover, even if the Court were to find that the Faculty Handbook is a valid
contract between the plaintiff and DCSL, and that the Faculty Handbook incorporates the
Merger Agreement, as plaintiff alleges, see A1n. Compl. 1111 11, 60, 62, she nonetheless
fails to state a claim for breach of contract because she received the very promotion and
tenure review process outlined in the Faculty Handbook and the Merger Agreement,
lndeed, when the Faculty Handbook’s subsection on the promotion and/or tenure
application process3 is reviewed, the reason for plaintiff s bald allegations, devoid of
3 The Faculty Handbook describes, in pertinent part, the procedure for promotion and
tenure as follows:
(d) When a faculty member is to be considered for tenure or promotion, the
Dean shall call a special meeting for that purpose. The criteria described
above shall be reviewed.
(e) Only tenured members of the faculty may vote in decision to recommend
tenure. 1n the case of promotion to the rank of Associate Professor, only
Associate and Full Professors may vote; in the case of promotion to the rank
of Professor, only Professors may vote.
(f) Members of the faculty of the required rank and tenure, whether or not
on leave and whether or not in residence, are eligible to vote in person or by
tendering a vote to the Chairperson of the Faculty Evaluation and Retention
Committee before the meeting. The Dean shall exercise his or her best
efforts to convey the necessary information to, and to obtain votes from,
faculty members away from the School. An otherwise eligible member
who declares his or her intention not to vote shall not be counted for
purposes of determining the number eligible to vote.
(g) A quorum for a meeting on tenure or promotion shall consist of 75% of
the faculty members eligible to vote. A candidate shall be recommended
for tenure or promotion only if he or she receives the favorable vote of 60%
of those eligible to vote.
(h) All voting shall be by unsigned secret ballots.
(i) 1f promotion or tenure is not approved, the candidate shall be advised of
the results of voting. A candidate who is denied tenure shall be entitled to
10
support, is clear: the Faculty Handbook is completely silent regarding how the
promotion/tenure review process should proceed after the FERC’s assessment and vote,
despite plaintiff s conclusory contentions to the contrary, and creates no obligation
whatsoever for the FERC to forward its recommendation to the Dean, who is then to
forward any recommendation directly to the Board. l\/loreover, the Merger Agreement
clearly outlines a promotion and tenure application review process that not only requires
review by FERC, the DCSL Dean, and the Provost, but explicitly states that the President
has final approval of promotion and tenure recommendations." According to plaintiffs
amended complaint, she received this process. See Am. Compl.1111 14-30. Accordingly,
the Court finds that the breach of contract claim against defendants DCSL and the Board
should be dismissed because no set of facts alleged by the plaintiff would entitle her to
serve out the remainder of his or her contract terrn.
Defs.’ Mot., Ex. 9 at 14-15.
4 More specifically, the Merger Agreement states:
The Faculty Evaluation and Retention Committee shall evaluate faculty
candidates for award of tenure and make recommendations to the Dean.
Based on the recommendation of the Faculty Evaluation and Retention
Committee, the Dean will recommend faculty candidates for promotion and
tenure to the Provost, who shall forward those recommendations to the
President with his or her own recommendations. The provisions of
Chapter 14 of the DCSL Rules shall be amended to provide for the Dean to
forward recommendations for promotion and tenure to the President of the
University, through the Provost, for final approval.
Defs.’ Mot, Ex. 1 at 8.
11
relief.
b. Breach of Covenant of Good Faith and Fair Dealing
In Count II, plaintiff alleges that defendants DCSL and the Board breached the
covenant of good faith and fair dealing by "intentionally imped[ing] and delay[ing]
95 CC
consideration of [p]laintiffs applications for tenure and full professorship, allow[ing] .
. . President [Sessoms] to make a final tenure decision in violation of applicable law,"
"deliberately depriv[ing] [p]laintiff of timely, objective and unbiased consideration for
tenure and promotion," and "depriv[ing] [the] Board of its right to dutifully consider
[p]laintiff s application for tenure and full professorship." Am. Compl. 1111 65-66.
Consequently, plaintiff contends that she has suffered an undetermined amount of
"economic damages." Ia’. 11 67. 1 disagree.
Under District of Columbia law, "all contracts contain an implied duty of good
faith and fair dealing, which means that ‘neither party shall do anything which will have
the effect of destroying or injuring the right of the other party to receive the fruits of the
contract."’ Paul v. Howard Urzz'v., 754 A.2d 297, 310 (D.C. 2000) (citation omitted); see
also Messz``na v. Natz``onwz``cle Mutual Ins. Co., 998 F.2d 2, 4-5 (D.C. Cir. 1993). A breach
of the duty of good faith and fair dealing must necessarily arise, however, out of the
performance or enforcement of a contract. C&E Servs., ]nc. v. Ashland lnc., 601 F.
Supp. 2d 262, 275 (D.D.C. 2009).
Because plaintiff has failed to plead facts establishing a valid contractual
12
agreement between the parties that could give rise to a breach of good faith and fair
dealing, see supra pages 7-12, the Court finds that the plaintiff fails to state a claim for
breach of good faith and fair dealing against defendants.§ Count 11 is thus dismissed.
c. Wrongful Termination
Plaintiff claims in Count 111 of her amended complaint that defendants DCSL and
the Board "illegally terminated [her] in violation of the Merger Agreement, Faculty
Handbook and D.C. law," resulting in "significant emotional and mental distress and
economic losses" to her. Am. Compl. 1111 68-72.
As defendants point out, however, Count 111 mostly regurgitates plaintiffs breach
of contract claims_that she was denied tenure and ultimately terminated in violation of
the Faculty Handbook, which incorporates the Merger Agreement. See ial. 1111 59-63.
Because plaintiff cannot recast her "breach" claims as a wrongful termination claim,
especially where she has not shown that her breach of contract claims are distinguishable
from her wrongful termination claim, the Court dismisses Count 111 as it relates to
def``endants’ alleged violation of the Faculty Handbook and the Merger Agreement.é
5 See, e.g., Mero v. Cily Segway T ours of Washz``rzgton DC, LLC, 826 F. Supp. 2d 100, 107
(D.D.C. 2011) ("[T]he absence of a contract alone is sufficient to defeat the implied
covenant claim."); Cambrz``clge Holdz``ngs, 357 F. Supp. 2d at 96 (plaintiff cannot state a
claim for breach of good faith and fair dealing where plaintiff fails to allege that
defendant was a party to express or implied agreement); Steele v. Isiko]j’, 130 F. Supp. 2d
23, 33 (D.D.C. 2000) (refusing to recognize the covenant of good faith and fair dealing
where no valid contract existed between the parties).
6 See Brown v. Clzildren ’s Nat’l Mea’. Ctr., 773 F. Supp. 2d l25, 138 (D.D.C. 201 1)
("lnsofar as the conduct giving rise to plaintiffs negligence claims is the same conduct
13
With regard to plaintiffs allegation of wrongful discharge under District of
Columbia law, specifically Section 1423 of District of Columbia Municipal Regulations
("D.C. Mun. Regs.") 8-A, see Am. Compl. 1111 13, 69, this claim also fails. "It is
well-settled District of Columbia law that an employment contract, absent evidence to the
contrary, is terminable at the will of either party." Sorrells v. Garj?nckel ’s, Brooks Br0s.,
Miller & Rhoaa’s, Inc., 565 A.2d 285, 289 (D.C. 1989) (internal quotation marks and
citation omitted). However, courts in the District of Columbia have created several
public policy exceptions to the rule where the employee’s discharge offends some
"mandate of public policy" that is "firmly anchored in either the Constitution or in a
statute or regulation which clearly reflects the particular public policy being relied upon
and . . . [that policy] arise[s] from a statute or regulation that does not provide its own
remedy." Carson v. Sz'm, 778 F. Supp. 2d 85, 97 (D.D.C. 201 1) (internal quotation marks
and citations omitted). These narrow exceptions include situations "where an employee
suffers an adverse action for refusing to break the law or for following the law to the
detriment of her employer." Chisholm v. Dist. of Columl)ia, 666 F. Supp. 2d 96, 117
giving rise to her Title VII claims, the negligence claims appear to be duplicative . . . .
[and] the Court will dismiss the negligence claims."); lacarzgelo v. Georgetown Um'v.,
760 F. Supp. 2d 63, 66 (D.D.C. 201 1) ("[T]he plaintiffs’ claim for breach of fiduciary
duty is entirely duplicative of their claims for medical malpractice and lack of informed
consent; this claim rests on the same factual allegations as the other two, would be
decided under the same legal standards as one or the other of those claims, and authorizes
the same forms of relief."); Park v. Hyatt Corp., 436 F. Supp. 2d 60, 66 (D.D.C. 2006)
(dismissing plaintiffs discrimination claim because it was duplicative of plaintiffs
claims under the DCHRA and federal civil rights statutes).
14
(D.D.C. 2009).
The plaintiff here was not anything other than an at-will employee of DCSL, and
she does not allege otherwise. And although plaintiff claims that defendants DCSL and
the Board wrongfully discharged her, in violation of D.C. Mun. Regs. 8-A § 1423, which
"states that tenure recommendations shall be forwarded only to the Dean," Am. Compl. 11
13, plaintiff mischaracterizes the text of the provision7 as well as fails to identify a public
policy upon which her wrongful termination claim is based. Consequently, Count 111
must be dismissed in its entirety.g
d. Violation of DCHRA
1n Count IV, plaintiff alleges that she was the victim of race and sex
discrimination, in violation of the DCHRA, D.C. Code § 2-1401 et seq. See Am. Compl.
1111 73-77. More specifically, plaintiff asserts that defendant DCSL "discriminated
against [her] . . . when its President denied her tenure and a promotion to full
professorship based upon a racially and gender biased double standard[]" and when the
7 Contrary to plaintiffs argument that Section 1423 ofD.C. Mun. Regs. 8-A, entitled
"Faculty Promotion," indicates that tenure recommendations should be forwarded only to
the Dean, the actual text of the provision provides no support for this contention. See
Defs.’ Mot., Ex. 8 (D.C. Mun. Regs. 8-A § 1423).
8 See, e.g., Chz``sholm, 666 F. Supp. 2d at 117 (wrongful discharge claim dismissed
because "plaintiff does not point to any fundamental public policy expressed in the
constitution or the statutes of the District of Columbia that support her position, but rather
points to the general policy of the Courts’ Comprehensive Policies . . . ."); Davis v.
Gables Resz'a’entz``al/H G. Smithy, 525 F. Supp. 2d 87, 102 (D.D.C. 2007) ("Plaintiff s
wrongful discharge is deficient [when] it does not identify any public policy purportedly
violated by his termination.").
15
"Board sanctioned the President’s actions while simultaneously approving a similarly
situated white male law professor’s tenure and full professor application based upon less
stringent tenure criteria." ]a’. 11 75. Moreover, plaintiff contends that the Board "failed
to monitor this tenure development . . . [or] take any corrective action," thereby
"allow[ing] and encourag[ing] its President to act in violation of the law and [UDC] and
the District of Columbia’s anti-discrimination laws." Ia’. 11 76. 1 disagree.
1n addressing employment discrimination claims under the DCHRA, courts are
guided by case law regarding Title V11 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. See Burt v. Nat’l Republican Clul) ofCapz``lol Hz``ll, 828 F. Supp. 2d 115, 122
(D.D.C. 2011). The DCHRA, like Title Vll, prohibits certain discriminatory practices,
making it unlawful for an employer to "fail or refuse to hire, or to discharge, any
individual; or otherwise to discriminate against any individual, with respect to his
compensation, terms, conditions, or privileges of employment" based on an individual’s
"race, color, religion, national origin, sex [or] age." D.C. Code § 2-1402.1 1(a)(1).
Plaintiff fails to state a discrimination claim under the DCHRA because she has
not alleged facts that could give rise to an inference of discrimination on the basis of race
or gender. To establish a prima facie case for discrimination, a plaintiff`` must show that
(1) she is a member of a protected class, (2) she suffered an adverse employment action,
and (3) the unfavorable action gives rise to an inference of discrimination, that is, an
inference that her employer took the action because of her membership in the protected
16
class. See Mastro v. Potornac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006);
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); Brown v. Broa’y, 199 F.3d 446,
452 (D.C. Cir. 1999).
Unfortunately for the plaintiff, her amended complaint fails to allege facts that
plausibly suggest the necessary connection between the adverse employment action at
issue, the denial of promotion and tenure, and her membership in a protected class, as an
African-American female. Certainly, plaintiff pleads her own race and gender, and
alleges that, as a result of her status, she was refused promotion and tenure. Am. Compl.
1111 50-54, 73-77. However, plaintiff alleges no set of facts, beyond threadbare and
conclusory assertions, from which a reasonable person could infer how her gender or race
caused her tenure rej ection, as opposed to any other, non-discriminatory basis, leaving the
Court to infer that the act was discriminatory simply based on the fact that she is a
woman, or that she is African-American, or both. This Court is not required to accept
inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in
the complaint. See Kowal, 16 F.3d at 1276. Further, this discriminatory inference is
especially weak given the fact that the two people who allegedly considered plaintiff s
tenure application unlawfully are either African-American (President Sessoms) or a
woman (Provost Baxter). See Am. Compl. 1111 24-25, 27, 29-30; Pl.’s Opp’n to Defs.’
Mot. to Dismiss ("Pl.’s Opp’n") at 20-21, ECF No. 13.
1n addition, plaintiff pleads that she was subject to a different set of tenure criteria
17
from Professor William G. McLain, a white male law professor who received tenure in
2010, in violation of the DCHRA. See Am. Compl. 1111 44-54, 75. But even drawing all
reasonable inferences from those allegations in her favor, plaintiff fails to provide any
support for her conclusory allegation that she was "equally, if not more qualified than
[Professor] McLain, based upon applicable tenure criteria" but was "subj ect to the typical
double standard rooted in the history of race discrimination in American jurisprudence."
Id. 1111 50-5 l. lndeed, plaintiff herself concedes that, like Professor McLain, she too did
not have the requisite number of published law review articles for tenure, and that
Professor McLain "was credited for his various . . . legal contributions in order to justify
his award oftenure." Ia’. 1111 17, 20-22, 44, 49-50; Pl.’s Opp’n at 22. lt is well
established in this Circuit that a court need not accept a plaintiffs legal conclusions;
rather, a plaintiff must provide the grounds of his or her entitlement to relief, which
requires a showing and not just a blanket assertion of a right to relief. See Twombly, 550
U.S. at 555 n.3; Kowal, 16 F.3d at 1276. For these reasons, the Court must dismiss
Count 1V for failure to state a claim of racial or sex discrimination under the DCHRA.
e. Violation of 42 U.S.C. § 1981
Alleging a violation of 42 U.S.C. § 1981, plaintiff claims in Count V of her
amended complaint that defendants DCSL and the Board "denied [her] the same right to
make and enjoy her employment contract and the benefits thereof as enjoyed by white
employees, including equal and unbiased consideration of tenure and full professorship"
18
in violation of "the [E]qual [P]rotection [C]lause of the 14th Amendment as pronounced
in 42 U.S.C. [§] 1981." Am. Compl. 11 79. Furtherrnore, plaintiff contends that Provost
Baxter and President Sessoms "acted in violation of the law and . . . [DCSL’S]
antidiscrimination policies and procedures, thereby establishing an illegal policy and
custom by its failure to enforce its anti-discrimination policies and laws." Ia’. 11 80.
A cause of action under Section 1981 may be brought when a plaintiff has suffered
an injury flowing from the racially-motivated breach of his contractual relationship with
another party. See Domino ’s Pizza, Inc. v. McDonald, 546 U.S. 470, 480 (2006); Reeves
v. Sanderson Plurnbz'ng Prods., Inc., 530 U.S. 133, 142 (2000) (courts evaluating Section
1981 claims of employer discrimination must assess whether employer intentionally
discriminated against plaintiff``). 1n addressing race discrimination claims under Section
1981, courts look for guidance to the jurisprudence surrounding Title V11. See Burt, 828
F. Supp. 2d at 122.
The analysis under Count V, plaintiffs Section 1981 claim, is largely duplicative
of the Court’s undertaking on plaintiffs DCHRA claim. Essentially, the plaintiff
contends that defendants violated both Section 1981 and the DCHRA by allowing the
President and Provost to consider and make final decisions upon her promotion and
tenure application, while also holding plaintiffs application to a different standard than a
white professor due to her race. See Am. Compl. 1111 73-84.
Accordingly, like her DCHRA claim, plaintiffs claim for discrimination under
19
Section 198lalso fails to state claim upon which relief can be granted. Aside from
broad, unsupported allegations that her race played a deciding role in defendants’
promotion and tenure decisions, plaintiff has pled no set of facts that could allow this
Court to make the inference that plaintiffs race was a motivating factor in DCSL or the
Board’s decision to deny plaintiff tenure or promotion. See supra pages 16-18;
Twornbly, 550 U.S. at 555 ("[A] plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.") (intemal quotation marks and
citation omitted). Plaintiff s claim under Court V thus cannot stand.
f. Negligent Supervision
Finally, in Count Vl of the amended complaint, plaintiff claims that defendants
DCSL and the Board are liable for "negligent supervision" due to their failure to
99 46
"properly monitor the [DCSL] tenure review process, supervise and monitor its
President and then . . . Provost to ensure that they acted in accordance with [UDC’s]
stated anti-discrimination [and tenure] policies and procedures," and "monitor [DCSL’S]
tenure practices to ensure that [those practices] complied with its [Faculty] Handbook and
the Merger Agreement, subject to applicable D.C. Municipal Regulatons [sic]." Am.
Compl.1111 85-90.
Plaintiffs negligent supervision claim is thus premised on the fact that defendants
DCSL and the Board were obligated to ensure that neither the President nor the Provost
20
rendered any faculty tenure decisions for DCSL, especially final decisions. See ial. 1111
85-90. Plaintiff, however, fails to point to any particularized legal duty or requisite
standard of care that the defendants allegedly breached by allowing the President or
Provost to make such tenure decisions. Plaintiff has thus failed to adequately plead a
claim for negligent supervision and Count VI is dismissed.g
CONCLUSION
Thus, for all of the above reasons, the Court GRANTS defendants’ Motion to
Dismiss. An appropriate Order will issue with this Memorandum Opinion.
a
RICHARD @EoN
United States District Judge
9 Plaintiff also asserts a claim for negligent infliction of emotional distress in her
amended complaint. See Am. Compl. 1111 92-94. Defendants contend that the amended
complaint is wholly lacking in any assertion of physical injury or emotional distress
plaintiff suffered as a result of defendants’ denial of tenure, and therefore is fatally
deficient. See Defs.’ Mem. at 43. lndeed, while the plaintiff effectively concedes the
defendants’ arguments by failing to counter any of the defendants’ assertions regarding
this claim in her opposition, see Hopkins v. Women ’s Div., Gen. Ba’. ofGlobal Ministries,
238 F. Supp. 2d 174, 178 (D.D.C. 2002), the plaintiffs failure to allege that she was ever
in the zone of physical danger created by defendants, or that she suffered any physical
injury, warrants dismissal of this claim as well.
21