Kemit Mawakana v. Board of Trustees of the University of the District of Columbia , 926 F.3d 859 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2019 Decided June 14, 2019
No. 18-7059
KEMIT MAWAKANA,
APPELLANT
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF THE DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-02069)
Richard A. Salzman argued the cause and filed the briefs
for the appellant.
Jason R. Waters argued the cause for the appellee. Yoora
Pak, Elisabeth L. Shu and Robert B. Wallace were with him on
brief.
Before: HENDERSON, ROGERS and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Law
professor Kemit Mawakana was denied tenure and terminated
by his employer, the University of the District of Columbia. He
sued the University’s Board of Trustees, claiming the
University discriminated against him based on race and
violated both the terms and spirit of its contract with him. The
district court granted the University’s motion for summary
judgment as to each count of Mawakana’s complaint.
Mawakana appealed as to three counts. We now reverse as to
those counts.
I. BACKGROUND
In 2006, Mawakana, 1 a black male, was hired by the
University of the District of Columbia (“University”) to serve
as a law professor at the David A. Clarke School of Law (“Law
School”). Pursuant to his initial employment contract,
Mawakana was hired as an Assistant Professor for a three-year
period. In 2009, Mawakana’s employment contract was
renewed and in 2010 he was promoted to Associate Professor.
In July 2011, Mawakana applied for tenure. There is no record
evidence that Mawakana heard anything about his tenure
application during the 2011-2012 academic year. In early fall
2012, he was invited to and attended a meeting of the faculty
subcommittee assigned to review his application. At the
meeting the subcommittee assured him that his application was
in good shape. A short time later, however, Mawakana attended
another subcommittee meeting at which the subcommittee
informed him that it had some concerns about his scholarship.
In November 2012, Mawakana was invited to and attended a
meeting with Law School Dean Katherine “Shelley” Broderick
(Broderick), and faculty subcommittee chairman, John
Brittain. At the meeting they both suggested that he withdraw
1
Mawakana was known as Samuel Jefferson before changing
his name in 2010.
3
his tenure application. Mawakana refused. In February 2013,
the subcommittee issued its assessment of Mawakana’s tenure
application, concluding that his scholarship was not worthy of
tenure and recommending that tenure be denied. The full
faculty evaluation and tenure committee reviewed and adopted
the subcommittee’s report. Broderick then reviewed and
endorsed the recommendation of the full faculty evaluation and
tenure committee. University Provost Ken Bain subsequently
reviewed and adopted the recommendation of the full faculty
evaluation and tenure committee and Broderick. Finally,
University President James Earl Lyons upheld the
recommendation of Provost Bain. On May 1, 2013, Mawakana
received notice that he had been denied tenure and that his
employment was to terminate effective August 15, 2013.
Believing he was denied tenure because of his race and that
the University had violated a contractual obligation to timely
notify him of concerns regarding his scholarship, Mawakana
sued the University Board of Trustees in the Superior Court for
the District of Columbia in October 2014. 2 He alleged
statutory race-based discrimination claims and contract
claims. 3 In March 2017, after removing the case to federal
2
A race discrimination claim against the University brought by
another black law professor who had been denied tenure was pending
before this Court at the time. See Brown v. Sessoms, 774 F.3d 1016
(D.C. Cir. 2014). We ultimately reversed the district court’s
dismissal of that professor’s claim, id. at 1025, after which the parties
reached a settlement agreement and the professor was reinstated.
3
Count I of the complaint alleged race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., and the District of Columbia Human Rights Act, D.C.
Code §§ 2-1401.1–2-1404.04. Count II alleged race discrimination
in violation of 42 U.S.C. §§ 1981 and 1983. Count III alleged breach
of contract. Count IV alleged breach of an implied covenant of good
faith and fair dealing.
4
district court and moving unsuccessfully to dismiss, the
University then moved for summary judgment. In March 2018,
the district court granted the motion and entered judgment for
the University. Mawakana v. Bd. of Trs. of Univ. of D.C., 315
F. Supp. 3d 189, 194 (D.D.C. 2018). The district court first held
that the University was entitled to summary judgment on
Mawakana’s Title VII and D.C. Human Rights Act (DCHRA)
claims because, especially considering “the heightened
deference accorded to academic decisions,” id. at 199
(capitalization altered), no reasonable jury could find that
Mawakana “was denied tenure because of his race,” id. at 207–
08. The district court next held that the University was entitled
to summary judgment on Mawakana’s 42 U.S.C. §§ 1981 and
1983 claims. Id. at 208–09. The district court also held that
Mawakana’s contract claims were untimely. Id. at 209–10, 212.
Finally, it held that even if Mawakana’s contract claims were
timely and the University had breached a contractual duty, the
claims failed because the breach had not caused Mawakana
damages. Id. at 210–11. Mawakana timely appealed all but the
district court’s grant of summary judgment on the section 1981
and section 1983 claims. We review the district court’s
decision de novo, Allina Health Servs. v. Price, 863 F.3d 937,
940–41 (D.C. Cir. 2017), mindful that summary judgment is
appropriate only “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).
II. ANALYSIS
A. STATUTORY CLAIMS
Both Title VII and the DCHRA make it unlawful for an
employer “to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment” because of the individual’s race. 42 U.S.C.
5
§ 2000e-2(a)(1); accord D.C. Code § 2-1402.11(a)(1). An
employee who has suffered an adverse employment action
because of his race has been subjected to a violation of both
statutes. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008); Futrell v. Dep’t of Labor Fed. Credit Union, 816
A.2d 793, 802–03 (D.C. 2003) (clarifying Title VII and
DCHRA are subject to same analysis).
1. “Academic Deference”
When the Congress passed Title VII in 1964, educational
institutions were exempt “with respect to the employment of
individuals to perform work connected with the educational
activities of such institution[s].” Pub. L. No. 88-352, § 702, 78
Stat. 253, 255. Eight years later, however, in “response to the
widespread and compelling problem of invidious
discrimination in educational institutions,” Univ. of Pa. v.
EEOC (Penn), 493 U.S. 182, 190 (1990), the Congress
amended Title VII and eliminated that exemption. Equal
Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 3,
86 Stat. 103, 103–04. The Congress was not persuaded by
opponents of the amendment who “claimed that enforcement
of Title VII would weaken institutions of higher education by
interfering with decisions to hire and promote faculty
members.” Penn, 493 U.S. at 190. Ever since the Congress
“abandoned [Title VII’s] exemption for educational
institutions” in 1972, their academic hiring has been subject to
Title VII’s restrictions. Id.
Thirteen years after the 1972 amendment, the United
States Supreme Court held in Regents of the University of
Michigan v. Ewing, 474 U.S. 214 (1985), that deference to
academia is appropriate in certain circumstances. In Ewing, a
student sued a university for dismissing him from school
without permitting him to retake a failed exam. Id. at 217. The
6
student argued that he had a substantive right under the Due
Process Clause to continued enrollment at the university free
from arbitrary state action. Id. Relying on the First Amendment
principle of “academic freedom” and the fact that the university
had “acted in good faith,” the Court declined to override the
university’s judgment that dismissal was proper. Id. at 225–26.
“When judges are asked to review the substance of a genuinely
academic decision, such as this one,” the Court said, “they
should show great respect for the faculty’s professional
judgment.” Id. at 225 (emphasis added). Granting the
university deference, the Court held that the decision to dismiss
the student was not “arbitrary.” Id. at 223.
Five years later, in Penn, the Supreme Court suggested
that, notwithstanding Ewing, the normal Title VII standard
applies to universities. In Penn, the United States Equal
Employment Opportunity Commission sued a university to
enforce a subpoena after the university declined to release
confidential materials related to the tenure review process of a
faculty member who had sued the university under Title VII.
493 U.S. at 185–87. The Court first held that the effect of the
1972 amendment to Title VII, discussed above, “was to expose
tenure determinations to the same enforcement procedures
applicable to other employment decisions.” Id. at 190. It then
rejected the university’s attempt to invoke academic freedom
as a legitimate ground for refusal to comply with Title VII’s
requirements. Id. at 198 (full enforcement of Title VII does not
infringe academic freedom because it does not “prevent[] the
[u]niversity from using any criteria it may wish to use, except
those—including race, sex, and national origin—that are
proscribed under Title VII”). As a result, the Court ordered the
university to release the materials. Id. at 201–02. Importantly
(if unsurprisingly), the Court did not overlook Ewing. Instead,
the Court held that its decision should not “be understood as a
retreat from th[e] principle of respect for legitimate academic
7
decisionmaking” set forth in Ewing. Id. at 199 (emphasis in
original).
Consistent with Penn’s suggestion, we believe that Ewing
and the concept of academic freedom do not entitle a university
to special deference in Title VII tenure cases. Indeed, the first
premise of the deference afforded the university in Ewing was
that the university had “acted in good faith.” 474 U.S. at 225.
That premise cannot be assumed in a Title VII case, where the
question is whether the employer acted in good faith. The
second premise of the Court’s deference in Ewing was that the
Court was being asked to review “the substance of a genuinely
academic decision.” Id. That premise also cannot be assumed
in a Title VII case, where a court is asked to evaluate the reason
for—as opposed to the substance of—the University’s decision
and thus whether the employer’s decision was “genuinely
academic.” In sum, Ewing dictates that a court cannot second-
guess a university’s decision to deny tenure if that decision was
made in good faith (i.e., for genuinely academic reasons, rather
than for an impermissible reason such as the candidate’s race).
But a Title VII claim requires a court to evaluate whether a
university’s decision to deny tenure was made in good faith
(i.e., for academic reasons rather than for an impermissible
reason such as the applicant’s race).
The ordinary Title VII claimant’s burden may be
“especially difficult to meet when it comes to academic
tenure,” Haynes v. Ind. Univ., 902 F.3d 724, 734 (7th Cir.
2018), because (1) tenure decisions are informed by
specialized, multi-factored judgments and (2) numerous
decisionmakers are usually involved in the tenure review
process, see id. But the burden is no more difficult to meet than
in any other Title VII case where the employment decision at
issue involves complex judgments and numerous
8
decisionmakers are involved. 4 In other words, the Title VII
burden is no more difficult to meet because the employer is a
4
Some cases simply apply the same Title VII standard to
faculty members as to other discrimination plaintiffs; others discuss
Ewing and the concept of academic freedom, expressing solicitude
for academic institutions’ faculty employment decisions. Compare
Haynes, 902 F.3d at 734 (not relying on Ewing or academic freedom
concept), Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 73–75
(2d Cir. 2015) (same), Ragozzine v. Youngstown State Univ., 783
F.3d 1077, 1079 (6th Cir. 2015) (same), Elsayed Mukhtar v. Cal.
State Univ., Hayward, 299 F.3d 1053, 1067–68 (9th Cir. 2002)
(same), overruled on other grounds by Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc), Clinger
v. N.M. Highlands Univ., Bd. of Regents, 215 F.3d 1162, 1168 (10th
Cir. 2000) (same), Krystek v. Univ. of S. Miss., 164 F.3d 251, 255–
58 (5th Cir. 1999) (same), Stewart v. Rutgers, 120 F.3d 426, 431–34
(3d Cir. 1997) (same), and Brown v. Trs. of Bos. Univ., 891 F.2d 337,
345–46 (1st Cir. 1989) (same), with Blasdel v. Nw. Univ., 687 F.3d
813, 816 (7th Cir. 2012) (citing Ewing and suggesting that, because
of “academic freedom,” courts “tread cautiously” in Title VII tenure
cases), Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d 550, 557
(4th Cir. 2011) (because of Ewing and academic freedom concept,
“courts may undertake” only “limited review” “in cases involving
employment decisions of academic institutions”), Okruhlik v. Univ.
of Ark., 395 F.3d 872, 879 (8th Cir. 2005) (citing Ewing and stating
“academic setting” distinguishes “denial of tenure” “from
employment decisions generally”), and Villanueva v. Wellesley
Coll., 930 F.2d 124, 129 (1st Cir. 1991) (suggesting “academic
freedom” is reason a denial of tenure must be obviously or manifestly
unsupported to violate Title VII). On close examination of the latter
cases, however, it is unclear whether they in fact apply a different
Title VII standard. See Blasdel, 687 F.3d at 815 (acknowledging “the
legal standard is the same whether the plaintiff in an employment
discrimination case is a salesman or a scientist”); Adams, 640 F.3d
at 557 (review of faculty employment decisions is limited “to
whether the appointment or promotion was denied because of a
discriminatory reason” as in non-tenure Title VII cases (quoting
9
university. Although the First Amendment grants a university
certain freedoms, the freedom to discriminate is not among
them.
2. “Reasonable Jury” Factors
Having determined that the University is not entitled to
special deference in this case, we now assess whether
Mawakana can establish a violation of Title VII and the
DCHRA using the standard three-step burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Hairston v. Vance-Cooks, 773 F.3d
266, 272 (D.C. Cir. 2014) (applying McDonnell Douglas to
Title VII claim); Futrell, 816 A.2d at 802–03 (applying
McDonnell Douglas to DCHRA claim). At the first step of
McDonnell Douglas, an employee must show a prima facie
case of discrimination. Hairston, 773 F.3d at 272. If the
employee meets this burden, the burden shifts to the employer
to proffer a legitimate, nondiscriminatory reason for the
Smith v. Univ. of North Carolina, 632 F.2d 316, 345–46 (4th Cir.
1980))); Okruhlik, 395 F.3d at 879 (“review of [tenure] decisions is
limited to whether the tenure decision was based on a prohibited
factor” as in non-tenure Title VII cases); Villanueva, 930 F.2d at 129
(“Academic freedom does not embrace the freedom to
discriminate.”). To the extent there is any genuine conflict, for the
reasons discussed supra, we agree with those courts that do not grant
universities special deference in Title VII tenure cases based on
Ewing and the concept of academic freedom. We acknowledge that,
when a court assesses a Title VII discrimination case, it has an
obligation to ensure “the dispute is not simply one of academic
disagreement with the underlying decision to deny tenure.” Haynes,
902 F.3d at 734. But this obligation applies in every Title VII case—
that is, a Title VII plaintiff must always demonstrate not simply a
substantive disagreement with the employment decision but that the
decision was, at least in part, based on the plaintiff’s membership in
a protected class.
10
challenged adverse employment action. Id. If the employer
meets its burden, the burden shifts back to the employee to
show that the reason offered by the employer was not its true
reason but was instead a pretext for discrimination. Id. If the
employer has already proffered a legitimate, nondiscriminatory
reason for its adverse employment action, however, the court
skips straight to “the ultimate question of discrimination vel
non.” George v. Leavitt, 407 F.3d 405, 411–12 (D.C. Cir. 2005)
(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 714 (1983)).
In this case the University has proffered a legitimate,
nondiscriminatory reason for denying Mawakana tenure. It
says he was denied tenure because his scholarship was
deficient. Thus, we ask whether, “viewing the evidence in the
light most favorable to [Mawakana] and drawing all reasonable
inferences accordingly,” e.g., Steele v. Mattis, 899 F.3d 943,
947 (D.C. Cir. 2018) (quoting Evans v. Sebelius, 716 F.3d 617,
619 (D.C. Cir. 2013)), a reasonable jury could find Mawakana
was denied tenure because of his race, see, e.g., Baloch, 550
F.3d at 1196 (“[T]he two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment
action (ii) because of the plaintiff’s race . . . .”). Specifically,
we ask whether a reasonable jury could find that Mawakana’s
race was a “motivating factor” in the University’s decision to
deny him tenure. See 42 U.S.C. § 2000e-2(m) (plaintiff can
prove liability under Title VII by demonstrating race “was a
motivating factor for [the relevant] employment practice, even
though other factors also motivated the practice”); see also
Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (to make
out Title VII claim, “plaintiff need only present sufficient
evidence for a reasonable jury to conclude . . . that race . . . was
a motivating factor for any employment practice” (internal
quotation marks omitted)).
11
A constellation of factors suggests to us that a reasonable
jury viewing the evidence in the light most favorable to
Mawakana could find that race was a motivating factor in the
University’s decision to deny him tenure. First, there is
evidence that the University, and specifically Broderick,
treated certain criteria differently when assessing the
scholarship of black tenure candidates as opposed to white
candidates. According to the Law School’s Official Standards
and Procedures for Retention and Tenure, the University
considers both the number and the quality of a candidate’s
published scholarly works an important criterion. But the
University treated a co-authored work as inferior in assessing
the application of a black candidate, Joint Appendix (JA) 1205,
even though it did not do so in assessing the application of a
white candidate, JA 1235–78. Likewise, Broderick treated
work published in the University’s own law review as inferior
in assessing the application of a black candidate, JA 1229,
although the University did not so treat a white candidate’s
work published in the same law review, JA 826–30. Finally,
Broderick dissuaded a black candidate from applying for tenure
by telling her that the University would not permit her to rely
on legal briefs and memoranda as scholarship, JA 1233–34,
notwithstanding the University treated these materials as
qualifying scholarship in assessing the application of a white
candidate, JA 1235–70.
Second, there is evidence that Broderick, who played an
outsized role in the tenure review process, see Mawakana, 315
F. Supp. 3d at 205 (it is “not disputed” that a reasonable jury
could believe “the recommendation of a Dean who had been
running the law school for more than 15 years carried
substantial weight”), disfavored Mawakana’s application. JA
1202. This history is relevant because, although Broderick was
not the ultimate decisionmaker, the jury could find that her
negative stance on Mawakana’s tenure application was a
12
“proximate cause” of the University’s ultimate decision to deny
him tenure. See Morris v. McCarthy, 825 F.3d 658, 668 (D.C.
Cir. 2016) (employer can be held liable in Title VII context if
supervisor who is not ultimate decisionmaker performs act,
motivated by discriminatory animus and intent to cause adverse
employment action, which proximately causes such action
(citing Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011))).
The evidence in the record, viewed together and in the light
most favorable to Mawakana, raises a plausible inference that
Mawakana’s race was a reason Broderick disfavored his
application. For instance, Broderick’s apparent change of
position about the quality of one of Mawakana’s articles could
be viewed as pretextual. She originally recommended
Mawakana for promotion because the article was “of high
quality, it reflects originality, creativity, and intellectual
inquiry, and it contributes to the growth and understanding of
the law,” JA 1156, but she later agreed with the faculty
committee’s concern about Mawakana’s scholarship, which
resulted in its finding that the same article did not meet tenure
standards, JA 397. In her deposition, when asked if the “high
quality” standard was the same for promotion and tenure,
Broderick answered, “I think so, yes.” JA 1010. The record also
raises a genuine issue of material fact whether Broderick
changed her position on Mawakana’s service to the law school,
which she found wanting in her recommendation against
tenure. See JA 397. In his declaration, Mawakana said that
Broderick and another professor “specifically asked [him] to
take on” the role of Faculty Athletics Representative (FAR),
that he was told the role counted toward his service at the law
school and that Broderick did not express any reservation about
it. JA 1058. In her letter recommending against tenure,
however, Broderick said that she and the other professor
“strenuously advised [Mawakana] not to accept the time
consuming job as FAR in order to concentrate his efforts on his
teaching and scholarship.” JA 397.
13
Third, the evidence adequately supports an inference that
Broderick used her influence in a manner generally more
supportive of white than black tenure candidates. Broderick
supported every white applicant for tenure during her time as
Dean. JA 1004. Once, she lobbied so hard for a white applicant
to receive tenure that another faculty member testified that she
had “made [tenure] happen” for that applicant. JA 1026. On the
other hand, Broderick raised concerns about more than half of
the black applicants who applied for, or considered applying
for, tenure, JA 1025, 1231; 1029; 1152–53; 1233–34, including
Mawakana, JA 382, 1021–22, 1027–28, some before the
faculty had even reviewed their applications, JA 1021–22,
1025, 1028. And at least one person involved in the tenure
review process seems to have believed race played a part in
some of the Dean’s decisions whether to support an applicant.
Indeed, the chairman of the faculty review committee wrote in
an email to another faculty member: “After losing 4 colleagues
these past months, all faculty of color, . . . I am not inclined to
be pressured by more of [Broderick’s] efforts to clean her
house.” JA 1314.
Fourth, two members of the University faculty who were
privy to the internal workings of the tenure review process
testified that they believed the University had disfavored black
professors within that process. JA 1036–38, 1044–45.
Fifth, of the eight white applicants who applied for tenure
between the time Broderick became the Dean in 1999 and the
time Mawakana filed suit in 2014, each one received tenure.
JA 1004. By contrast, of the seven black professors who
applied for tenure within that time period, only five received
tenure. JA 48–49, 1358–59; JA 400, 1206. Those numbers may
not be overly alarming until one considers that one of the five
was initially denied tenure—a decision which was reversed
only after her Title VII race discrimination claim survived a
14
motion to dismiss, see Brown, 774 F.3d at 1018; JA 49—and
two other black faculty members were dissuaded from applying
in the first place because Broderick told them they had no
chance of succeeding, JA 1152–53, 1233–34.
These five factors, taken together and viewed in the light
most favorable to Mawakana, raise a plausible inference that
race was a motivating factor in the University’s decision to
deny Mawakana tenure. At this stage, we give no opinion
regarding whether Mawakana was in fact discriminated against
based on his race. We simply cannot state that, as a matter of
law, he was not discriminated against based on his race.
B. CONTRACT CLAIMS
Next we assess whether the University is entitled to
summary judgment on Mawakana’s contract claims. Because
the district court held these claims time-barred, we begin by
addressing timeliness before moving to the merits.
1. Timeliness
“A contract action must be brought within three years of
the date on which the ‘right to maintain the action accrues.’ An
action for breach of contract generally accrues at the time of
the breach.” Wright v. Howard Univ., 60 A.3d 749, 751 (D.C.
2013) (quoting D.C. Code § 12-301). In his complaint, which
he filed on October 2, 2014, Mawakana alleged that the
University expressly and/or impliedly contracted with him to,
inter alia, meet with him “at least once each academic year to
. . . discuss the degree to which . . . his performance me[t] the
standards for promotion and tenure.” Mawakana further
alleged that, consistent with this requirement, the intent of the
parties’ contract was that the University was to provide him
with notice of any concerns it had regarding his scholarship
“with sufficient time for [him] to make adjustments or
15
corrections or address those concerns before a decision [was]
made in the formal tenure review process.” Mawakana alleged
that the University failed to meet its obligation and should
therefore be held liable for breach of contract and breach of the
implied covenant of good faith and fair dealing. We believe
that Mawakana’s contract claims are timely to the extent they
allege the University’s breach occurred when it failed to meet
with him during the 2011-2012 academic year. If a breach
occurred as alleged, his claims accrued on the final day of the
2011-2012 academic year—sometime in mid-2012—less than
three years before the October 2, 2014 filing date.
2. Merits
Thus, we proceed to the merits, where we ask whether a
reasonable jury could find that—by failing to meet with him
during the 2011-2012 academic year—the University breached
either the terms or intent of its contract with Mawakana and
thereby caused him damage. Indeed, “[t]o prevail on a claim of
breach of contract, a party must establish (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). And “all contracts contain an implied duty of
good faith and fair dealing . . . . If a party to the contract evades
the spirit of the contract . . . he or she may be liable for breach
of the implied covenant of good faith and fair dealing.” Paul v.
Howard Univ., 754 A.2d 297, 310 (D.C. 2000). At this stage,
Mawakana may yet be able to prevail on one or both of his
contract claims.
There remains an unresolved factual dispute whether an
implied-in-fact contract between Mawakana and the University
existed and, if it did, what the terms and, in turn, the intent of
that contract were. In an earlier ruling, the district court rejected
16
Mawakana’s contract claims “insofar as they are based on a
theory of express contract,” Mawakana v. Bd. of Trs. of Univ.
of D.C., 113 F. Supp. 3d 340, 349 (D.D.C. 2015), but found
that Mawakana stated “a plausible claim that a combination of
[facts] created an implied contract between [him] and the
University,” id. at 356. The district court has not, as yet,
resolved whether an implied-in-fact contract existed. In the
ruling under review, the district court assumed arguendo the
existence of an implied-in-fact contract that imposed on the
University “a duty to provide feedback and an annual review
in academic year 2011-2012,” and held that “because plaintiff
filed his tenure application before the 2011-12 academic year[,]
. . . even if defendant breached the contract that year, that
breach did not cause the harm of which plaintiff complains.”
Mawakana, 315 F. Supp. 3d at 210–11. Because the court
points to no basis in law nor any undisputed fact indicating that
Mawakana would not have been able to update his application
had he been timely informed of a deficiency, this was error.
If there existed an implied-in-fact contract between
Mawakana and the University (a “valid contract”); if either the
terms or intent of that contract imposed on the University a
duty to meet with Mawakana at least once during the 2011-
2012 academic year to discuss whether his performance met
the tenure standard (an “obligation or duty”); and if Mawakana
would have been permitted to update his tenure application
after such meeting, the University’s failure to meet with
Mawakana during the 2011-2012 academic year (a “breach”)
arguably contributed to his failure to obtain tenure (“caused”
him “damages”). Because factual issues central to Mawakana’s
contract claims remain disputed, the district court’s grant of
summary judgment on these claims was premature.
17
For the foregoing reasons, we reverse the challenged
portion of the district court’s judgment and remand the case for
further proceedings consistent with this opinion.
So ordered.