Stephanie Brown v. Allen Sessoms , 774 F.3d 1016 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 23, 2014 Decided December 19, 2014
No. 13-7027
STEPHANIE Y. BROWN,
APPELLANT
v.
ALLEN L. SESSOMS, PRESIDENT,
UNIVERSITY DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00799)
Donald M. Temple argued the cause and was on brief for
the appellant.
Yoora Pak argued the cause and was on brief for the
appellees.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Stephanie
Brown was a law professor at the University of the District of
Columbia David A. Clarke School of Law (DCSL). In 2009,
she applied for tenure and a promotion. Her application for
tenure was eventually rejected by then–Interim Provost
Graeme Baxter (Baxter) and President Allen Sessoms
(Sessoms), both of whom worked for the University of the
District of Columbia (UDC). Dissatisfied, Brown sued the
Board of Trustees of UDC (Board) and Sessoms (collectively,
UDC defendants). She alleged one federal claim and six
local-law claims. The UDC defendants removed the action to
federal court and moved to dismiss for failure to state a claim.
The district court granted the motion to dismiss in its entirety
and Brown appealed. We reverse and remand in part and
affirm in part.
I. Background
Brown, a black female, worked for DCSL in various
capacities for more than two decades. 1 At one time, DCSL
and UDC were separate institutions governed by different
boards. In 1995, DCSL entered into a Merger Agreement
with UDC to become UDC’s law school and the UDC Board
became statutorily bound by the terms of the Merger
Agreement. See D.C. CODE § 38–1202.11(c). Several
provisions of the Merger Agreement regarding faculty
appointments and service have been codified in D.C. municipal
regulations. See generally D.C. MUN. REGS., tit. VIII, §§
1400–1424. The DCSL Faculty Handbook also incorporates
the merger and makes reference to the Merger Agreement.
Brown submitted her application for tenure and a
promotion to full professor on January 5, 2009. At that time,
1
Brown’s employment at the law school ended on May 15, 2012.
3
Brown was an associate professor of law. The initial
reviewing entity was DCSL’s Faculty Evaluation and
Retention Committee (Committee). It voted to recommend
Brown for tenure and transmitted her application to DCSL
Dean Katherine Broderick (Broderick). Broderick initially
recommended that the Committee withdraw its approval of
Brown’s tenure application. Broderick’s concerns focused on
both the sparseness and the quality of Brown’s legal
scholarship, as Brown had only “one . . . published law review
article” when she applied for tenure and a promotion. Am.
Compl. ¶ 20. Once Broderick learned that a law journal
agreed to publish another one of Brown’s articles, however,
she endorsed the Committee’s recommendation and forwarded
her approval of Brown’s application to Baxter. 2
Notwithstanding Broderick’s endorsement, in June 2011,
Baxter rejected Brown’s tenure application. Baxter then
forwarded her rejection decision to Sessoms, who agreed that
Brown should not be awarded tenure. Accordingly, Sessoms
did not submit Brown’s tenure application to the Board.
Around the same time that Brown applied for tenure, the
UDC administration considered the tenure application of
William McLain (McLain), a white male. Brown alleges that
McLain had “no legal publications” but that Broderick did not
insist that he satisfy the three-publication requirement, as
Broderick had with Brown’s application. Am. Compl. ¶ 44.
Despite McLain’s lack of publications, the Board awarded him
tenure and a promotion to full professor in 2010. Brown
alleges that McLain won tenure because he was “credited for
2
It is unclear from the amended complaint whether the Committee and
Broderick recommended Brown for tenure and promotion or tenure alone.
Because the amended complaint speaks of an “Application for Tenure,”
Am. Compl. ¶ 14, we assume that the Committee recommended Brown for
tenure only.
4
his various and sundry legal contributions” even though,
according to Brown, she was “equally, if not more qualified
than McLain” based on their respective tenure applications.
Am. Compl. ¶¶ 49, 51.
With her application denied, Brown filed suit in D.C.
Superior Court against the UDC defendants. They removed
the action to federal court and Brown filed an amended
complaint on May 22, 2012. Brown raised seven claims in her
amended complaint: (1) breach of contract; (2) breach of the
covenant of good faith and fair dealing; (3) wrongful
termination; (4) race and gender discrimination in violation of
the D.C. Human Rights Act (DCHRA), D.C. CODE §§ 2–1401,
et seq.; (5) race discrimination in violation of 42 U.S.C. §
1981; (6) negligent supervision; and (7) negligent infliction of
emotional distress. 3 The UDC defendants moved to dismiss
all seven counts for failure to state a claim. See FED. R. CIV. P.
12(b)(6).
In its decision, the district court first addressed Sessoms’s
status. It held that the claims against him in his official
capacity were duplicative of the claims against the Board so it
treated them all as against the Board. It also dismissed the
claims against President Sessoms in his individual capacity
because, as Brown conceded, he was shielded from liability by
qualified immunity. See generally Bame v. Dillard, 637 F.3d
380, 384 (D.C. Cir. 2011). Brown challenges neither of these
rulings on appeal. The district court then proceeded to the
merits of each claim and dismissed all seven counts, holding
that Brown failed to plead sufficient facts to state a claim for
3
Brown does not press her claim for negligent infliction of emotional
distress on appeal. Brown has also given up her wrongful termination
claim by failing to include her argument for this claim in her opening brief.
City of Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C. Cir. 2003).
5
relief. See FED. R. CIV. P. 12(b)(6). Brown timely appealed.
Our jurisdiction is based on 28 U.S.C. § 1291.
II. Analysis
“We review the grant of a motion to dismiss de novo.”
Ralls Corp. v. Comm. on Foreign Inv., 758 F.3d 296, 314 (D.C.
Cir. 2014) (internal citation omitted). We accept the factual
allegations in Brown’s complaint “as true” and we “draw all
inferences in her favor.” Harris v. Ladner, 127 F.3d 1121,
1123 (D.C. Cir. 1997). “[A] plaintiff’s obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and alterations omitted). Moreover, a plaintiff must
identify “factual allegations” that “raise a right to relief above
the speculative level.” Id. In short, the plaintiff must provide
“factual content [in her complaint] that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
A. Section 1981
Although Brown pleaded a claim under 42 U.S.C. § 1981,
neither the parties nor the district court evaluated the claim in
light of the United States Supreme Court’s holding in Jett v.
Dallas Independent School District, 491 U.S. 701 (1989). In
Jett, the Supreme Court considered whether section 1981
“provides an independent federal cause of action for damages
against local governmental entities” and other state actors. 4
4
Section 1981 states, in pertinent part, that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and
Territory to make and enforce contracts.” 42 U.S.C. § 1981(a). This
6
Jett, 491 U.S. at 705. The Court noted that the text of section
1981 is silent on this question, id. at 711–12, so it engaged in
an exhaustive review of the statute’s legislative history as well
as the history of related statutes and constitutional
amendments. See id. at 713–31. It concluded “that Congress
intended that the explicit remedial provisions of [42 U.S.C.] §
1983 be controlling in the context of damages actions brought
against state actors alleging violation of the rights declared in §
1981,” id. at 731, and therefore held that “the express ‘action at
law’ provided by § 1983 . . . provides the exclusive federal
damages remedy for the violation of the rights guaranteed by §
1981 when the claim is pressed against a state actor.” Id. at
735.
There is a split among our sister circuits as to whether Jett
was nullified by the Civil Rights Act of 1991, Pub. L. No. 102–
166, § 2, 105 Stat. 1071, 1071–72 (Act). Seven courts of
appeals have held that the Act did not overrule Jett, with only
the Ninth Circuit reaching the contrary conclusion. Compare
Campbell v. Forest Pres. Dist. of Cook Cnty., Ill., 752 F.3d
665, 671 (7th Cir. 2014) (“We now join the overwhelming
weight of authority and hold that Jett remains good law, and
consequently, § 1983 remains the exclusive remedy for
violations of § 1981 committed by state actors.”); McGovern v.
City of Philadelphia, 554 F.3d 114, 122 (3d Cir. 2009);
Arendale v. City of Memphis, 519 F.3d 587, 599 (6th Cir.
2008); Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th
Cir. 2006); Oden v. Oktibbeha Cnty., 246 F.3d 458, 464 (5th
Cir. 2001); Butts v. Cnty. of Volusia, 222 F.3d 891, 894 (11th
Cir. 2000); Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 n.1
provision “protects the equal right of ‘[a]ll persons within the jurisdiction of
the United States’ to ‘make and enforce contracts’ without respect to race.”
Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42
U.S.C. § 1981(a)).
7
(4th Cir. 1995), with Fed’n of African Am. Contractors v. City
of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996).
A well-reasoned decision from a district court in our
Circuit has addressed the issue. Sledge v. Dist. of Columbia,
869 F. Supp. 2d 140 (D.D.C. 2012). Sledge noted that the Act
amended section 1981 to protect “against racial discrimination
by private and state actors.” Id. at 144. But this language
“still only addresses substantive rights” and section 1983
remains “the only provision to expressly create a remedy
against persons acting under color of state law.” Id.
(emphasis added). The distinction is significant because
rights and remedies are separate concepts. See id. at 144–45;
see also Chelentis v. Luckenbach S.S. Co., Inc., 247 U.S. 372,
384 (1918) (“The distinction between rights and remedies is
fundamental. A right is a well founded or acknowledged
claim; a remedy is the means employed to enforce a right or
redress an injury.”).
The text of the Act as well as its legislative history also
forecloses any argument that the Congress sought to nullify
Jett. “The Civil Rights Act and its legislative history name
several Supreme Court decisions which the Act is intended to
overrule, but Jett was not identified even though it was decided
less than two years before Congress acted.” Sledge, 869 F.
Supp. 2d at 145. The fact that Jett appears nowhere in the Act
or the committee reports that preceded it “belies” any argument
that the Congress “intended to repeal” the decision. Id. We
agree with Sledge and join our sister circuits (minus the Ninth
Circuit) in concluding that the Act’s amendments to section
1981 did not nullify Jett.
Applying Jett’s holding to Brown’s section 1981 claim
appears straightforward. Brown alleged a violation of section
1981 only, not section 1983. The UDC defendants, however,
8
are plainly state actors. University of the District of
Columbia, http://tinyurl.com/pn27s7u (last visited Dec. 5,
2014) (UDC is the “only public university in the nation’s
capital”); Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488
U.S. 179, 192 (1988) (“A state university without question is a
state actor.”). Jett, then, purportedly bars Brown from
bringing a section 1981 claim against the UDC defendants
without also making a claim under section 1983.
The Supreme Court, however, has recently made clear that
a plaintiff’s failure to invoke section 1983 is ordinarily not a
ground to dismiss his complaint. In Johnson v. City of Shelby,
135 S. Ct. 346 (2014), the plaintiffs sued Shelby, MS, alleging
a violation of their Fourteenth Amendment rights. Id. at 346.
The district court dismissed their complaint for “failure to
invoke 42 U.S.C. § 1983” and the Fifth Circuit affirmed. Id.
The Supreme Court reversed and held that “no heightened
pleading rule requires plaintiffs seeking damages for violations
of constitutional rights to invoke § 1983 expressly in order to
state a claim.” Id. at 347. The defendant had notice of the
claims against it because the plaintiffs “stated simply,
concisely, and directly events that, they alleged, entitled them
to damages from the city.” Id. On remand, the Court stated,
the plaintiffs should be allowed “to add to their complaint a
citation to § 1983.” Id.
We believe Johnson controls our resolution of Brown’s
section 1981 claim. The fact that Brown presses a statutory
claim, whereas the Johnson plaintiffs raised a constitutional
claim, does not appear to us to affect its applicability.
Johnson makes clear that once those plaintiffs stated the facts
allegedly giving rise to liability, they were not obligated to
“invoke section 1983 expressly in order to state a claim.” Id.
Because Brown’s section 1981 claim remains viable, we turn
to the merits of that claim.
9
Section 1981 protects “the equal right of ‘[a]ll persons
within the jurisdiction of the United States’ to ‘make and
enforce contracts’ without respect to race.” Domino’s Pizza,
546 U.S. at 474. To press a section 1981 claim, a plaintiff
must identify rights “under the existing (or proposed) contract
that he wishes to make and enforce.” Id. at 479–80. We
assume without deciding that the DCSL Faculty Handbook,
including its reference to the Merger Agreement, constitutes a
valid contract. See McConnell v. Howard Univ., 818 F.2d 58,
62–63 (D.C. Cir. 1987) (“It is well established that, under
District of Columbia law, an employee handbook such as the
Howard University Faculty Handbook defines the rights and
obligations of the employee and the employer, and is a contract
enforceable by the courts.”); Howard Univ. v. Best, 484 A.2d
958, 970 (D.C. 1984) (plaintiff’s contract consisted of, among
other things, faculty “Handbook’s statement of employment
policies”).
To evaluate a section 1981 claim, “courts use the three-step
McDonnell Douglas framework for establishing racial
discrimination under Title VII.” Carney v. Am. Univ., 151
F.3d 1090, 1092–93 (D.C. Cir. 1998). Under that framework,
a plaintiff without direct evidence of discrimination as it relates
to contractual rights must first plead a prima facie case by
establishing “that (1) he is a member of a protected class, (2) he
suffered an adverse employment action, and (3) the
unfavorable action gives rise to an inference of discrimination
(that is, an inference that his employer took the action because
of his membership in the protected class).” Forkkio v. Powell,
306 F.3d 1127, 1130 (D.C. Cir. 2002). A plaintiff can raise an
inference of discrimination by showing “that she was treated
differently from similarly situated employees who are not part
of the protected class.” George v. Leavitt, 407 F.3d 405, 412
(D.C. Cir. 2005).
10
If the plaintiff makes out a prima facie case, the burden
shifts to the employer to articulate “some legitimate,
nondiscriminatory reason” for the employment action, which
the plaintiff can rebut by proving, under a preponderance of the
evidence standard, that the employer’s justification is merely
pretext for discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–804 (1973). We have been clear,
however, that “[a]t the motion to dismiss stage, the district
court cannot throw out a complaint even if the plaintiff did not
plead the elements of a prima facie case.” Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008).
We believe Brown has pleaded enough to make out a claim
under section 1981. The crux of her argument is that an
inference of discrimination arose when the UDC defendants
applied “less stringent tenure criteria” to McLain’s tenure
application than they did to Brown’s submission. Am.
Compl. ¶ 75. DCSL has three “distinct qualifications for
tenure: teaching, scholarship and service.” Id. ¶ 15. They
are spelled out in the Faculty Handbook. The scholarship
component requires that an applicant’s tenure application
include three published law review articles. Although Brown
did not have three published articles when she submitted her
application, she alleges that McLain’s tenure submission was
similarly deficient. McLain, however, was apparently
“credited for his various and sundry legal contributions” to
make up for his lack of scholarship, id. ¶ 49, while Brown
received no similar credit despite her “demonstrated academic
accomplishments and a record of selfless and thankless
contributions to the law school.” Id. ¶ 50.
Taken together, Brown has pleaded enough facts that “raise
[her] right to relief above the speculative level.” Twombly,
550 U.S. at 555. She identified a similarly-situated employee
11
who is not in her protected class and explained why she has
equivalent qualifications. Neither she nor McLain submitted
three published law review articles with their tenure
applications and they were apparently comparable aliunde
their publications based, in Brown’s case, on her years of
service to DCSL through administrative assistance and
academic teaching. Brown, however, was not awarded a
tenure contract. Drawing all inferences in her favor, we
believe that Brown’s complaint sufficiently makes out that she
and McLain had similar records with regard to teaching and
service. Because both also failed to meet the publication
requirement, their tenure applications appear, from the
complaint, to be on comparable footing. The fact that McLain
won tenure and Brown did not allows us “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Accordingly,
we reverse the district court’s dismissal of Brown’s section
1981 claim. 5
B. Local-Law Claims
After dismissing Brown’s federal claim, the district court
exercised its discretion to retain and decide Brown’s pendent
local-law claims. See 28 U.S.C. § 1367(a) (giving district
courts “supplemental jurisdiction over all other claims that are
so related to claims in the action within” district court’s
“original jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution”); see also Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006) (“[W]hen a court grants a motion to dismiss for
failure to state a federal claim, the court generally retains
discretion to exercise supplemental jurisdiction, pursuant to 28
5
As Johnson indicates, Brown should be allowed on remand to add a
citation to 42 U.S.C. § 1983 to her complaint.
12
U.S.C. § 1367, over pendent state-law claims.”); Saksenasingh
v. Sec’y of Educ., 126 F.3d 347, 351 (D.C. Cir. 1997) (same).
Our review of the district court’s dismissal of Brown’s
local-law claims follows.
1. DCHRA
The DCHRA proscribes discriminatory actions taken by
employers based on, inter alia, race and sex. D.C. CODE § 2–
1402.11(a). We use the “burden-shifting framework
established for Title VII cases in McDonnell Douglas” to
evaluate claims under the DCHRA. McFadden v. Ballard
Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 3 (D.C. Cir.
2010). This is the same framework we used to evaluate
Brown’s section 1981 claim. See supra Part II.A.; see also
McFadden, 611 F.3d at 3 (McDonnell Douglas burden-shifting
framework is used to evaluate both DCHRA and section 1981
claims). We, unsurprisingly, reach the same conclusion here
and reverse the district court’s dismissal of Brown’s DCHRA
claim.
2. Breach of Contract
Brown’s breach of contract claim is premised on her belief
that the Board—not Sessoms or Baxter—was, under the
Merger Agreement, the final entity to review her tenure
application. “To 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).
Assuming arguendo that the Faculty Handbook and the Merger
Agreement constitute valid contracts, Brown’s contractual
claim fails because she has not alleged any facts showing that
the UDC defendants breached a contractual obligation.
13
The Merger Agreement outlines the process for reviewing
DCSL tenure applications:
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.
Joint Appendix 93. This language makes clear that the Board
is not required to review Brown’s tenure application. The
Committee is to forward its recommendation to the Provost,
who then forwards the Committee’s recommendation, as well
as her own, to the President.
Brown correctly notes that the Merger Agreement provides
that D.C. municipal regulations must be amended to provide
final approval authority to the President. Appellant Br. 18.
She also notes that no such amendment occurred and, without
it, Brown alleges that Sessoms was contractually obligated by
the Merger Agreement to forward her tenure application to the
Board for final approval. We disagree. The Board is bound
“by the terms of the Merger Agreement.” D.C. CODE § 38–
1202.11(c). The Agreement’s call to conform municipal
14
regulations does not affect the President’s authority vis-à-vis
tenure applications. It provides that the President has final
approval over tenure applications, adding only that local
regulations should conform. We therefore affirm the
dismissal of Brown’s breach of contract claim.
3. Good Faith and Fair Dealing
All contracts in the District of Columbia “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 Univ., 754 A.2d 297,
310 (D.C. 2000) (internal quotation marks omitted). A party
breaches this covenant if it “evades the spirit of the contract,
willfully renders imperfect performance, or interferes with
performance by the other party” to the contract. Id. A party
does not breach “its duty of fair dealing when reasonable
persons in the parties’ shoes would have expected the contract
to be performed as it was.” Adler v. Abramson, 728 A.2d 86,
90–91 (D.C. 1999).
We believe Paul v. Howard University, supra, controls our
resolution of this issue. In Paul, the plaintiff sued Howard
University when her tenure application was rejected. Paul,
754 A.2d at 301. She alleged breach of contract and breach of
the covenant of good faith and fair dealing but both claims
were rejected. Id. at 310–11. The court was unpersuaded by
the plaintiff’s good faith and fair dealing claim principally
because she “had no contractual right to receive tenure
automatically” and because the defendants “acted within the
standards set forth in the handbooks when considering her
tenure applications.” Id.
15
Like the plaintiff in Paul, Brown had no contractual right to
receive tenure. Additionally, Sessoms was not obligated
under the Merger Agreement to forward her tenure application
to the Board. See supra Part II.B.2. Accordingly, the UDC
defendants did not breach the covenant of good faith and fair
dealing by failing to do something they had no obligation to do.
Because “reasonable persons in the parties’ shoes would have
expected the contract to be performed as it was,” Adler, 728
A.2d at 90–91, we affirm the district court’s dismissal of
Brown’s good faith and fair dealing claim.
4. Negligent Supervision
An employer engages in negligent supervision under D.C.
law if it “knew or should have known its employee behaved in
a dangerous or otherwise incompetent manner, and that the
employer, armed with that actual or constructive knowledge,
failed to adequately supervise the employee.” Godfrey v.
Iverson, 559 F.3d 569, 571 (D.C. Cir. 2009). Brown’s
complaint contains no facts from which it can be inferred that
the Board “knew or should have known” that Sessoms or
Baxter would not follow protocol, assuming arguendo either
(or both) did so. In short, Brown does not “raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555.
For the foregoing reasons, we reverse the dismissal of
Brown’s DCHRA and section 1981 claims and remand those
claims for further proceedings consistent with this opinion
(including an opportunity for Brown to amend her complaint in
accordance with Johnson). We affirm the dismissal of
Brown’s remaining claims for the reasons stated herein.
So ordered.