Stephanie Brown v. Allen Sessoms

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.