Petition for Writ of Certiorari — Mehdi Moini, Petitioner v. Ellen M. Granberg, in Her Official Capacity as President of George Washington University

Supreme Court briefSep 10, 2024

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SUPREME COURT OF THE UNITED STATES

MEHDI MOINI,

Petitioner,

vs.

ELLEN M. GRANBERG,

In her official capacity as President,

George Washington University,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Mehdi Moini, Ph.D.

732 Ridge Dr.

McLean, VA 22101

Moini.mehdi@gmail.com

(512) 736-8650

Pro se

I. Questions Presented

The Civil Rights Act of 1964, 42 U.S.C. § 1981,

was designed to eliminate discrimination in all

employment levels; however, in the academic

institution of higher education, two decisions by this

Court ordered deference to a university’s academic

judgment that was based on “genuine professional

judgment.” Bd. of Curators, Univ. of Mo. u. Horowitz,

435 U.S. 78 (1978); Regents of the Univ. of Mich. v.

Ewing, 474 U.S. 214 (1985). Ever since, courts have

shown considerable deference to academic judgments

even in intentional discrimination cases brought by

faculty challenging denials of promotion or tenure,

often dismissing the lawsuit or awarding summary

judgment to the institution by dismissing all the

evidence as insufficient in every step of the plaintiffs

analysis of the discrimination or the breach of

contract claims, rendering the statue ineffective.

The questions presented are:

Under §1981, is a Middle-Eastern Iranian a

race? What evidence or characteristics does an

appellant need to provide to prove his race? How to

determine if an employer's reference to the

employee’s protected trait when making an

unfavorable

employment

decision

direct

discrimination? How to define "similarly situated" to

show pretext at institutions of higher education with

a tenure system, and if the Eleventh Circuit's

examples of "a valid comparison" should be adopted

by other courts to eliminate the arbitrary definition

of "similarly situated" comparators by the courts?

What determines if the university's published tenure

and promotion guidelines (T&P) and procedures are

binding and if the post-hoc depositions of ex

university officials override the university's

published guidelines and procedures? Finally, under

§1981, should one read the discrimination broadly to

include a retaliation theory? In particular, because

there is no separate provision of section 1981 that

prohibits retaliation, where it is difficult for any

litigant (mainly a pro se plaintiff) to discern that

theory, do they need to plead retaliation in a

separate count in the complaint?

II. TABLE OF CONTENTS

QUESTIONS RESENTED

II.

TABLE OF CONTENTS...

III. TABLE OF AUTHORITIES

IV. PETITION FOR WRIT OF CERTIORARI...... 1

OPINION BELOW.

VI. JURISDICTION

VII. CONSTITUTIONAL PROVISION

INVOLVED

VIII. STATEMENT OF THE CASE

1. The Denial of Tenure and Promotion

2. Direct Appeal................................... !.....

IX. REASONS FOR GRANTING THE WRIT...... 30

A. TO CLARIFY THE SUPREME

COURT ANALYSIS OF DEFERENCE TO AN

ACADEMIC INSTITUTION TO EFFECTUATE

THE CONGRESSIONAL INTENT BEHIND

TITLE VII AND §1981 STATUTES TO

ENSURE THAT MINORITY FACULTY

MEMBERS ENJOY THE PROTECTION

THEY ARE ENTITLED TO UNDER

THESE STATUTES

CONCLUSION

XI. APPENDIX TABLE OF CONTENTS...

FEDERAL OPINIONS AND ORDERS

(SEPARATE BOOKLET)

A-l

III. TABLE OF AUTHORITIES

Cases

Aka v. Wash. Hosp. Ctr.,.............. ...........................

156 F.3d 1284, 1293 (D.C. Cir. 1998)

Allworth v. Howard Univ.,........................................ :.27

890 A.2d 194,202 (D.C. 2006)

Bd. of Curators, Univ. of Mo. v. Horowitz,............. ii. 4

435 U.S. 78 (1978)

Brady v. Off. of Sergeant at Arms,.;............. ...... ... ,27

520 F.3d 490, 493, 495 (D.C. Cir. 2008)

,..-35

Bolden v. City of Topeka,......

441 F.3d at 1137 (2006

Broussard-Norcross v. Augustana Coll. Ass’n.......... 5

935 F.2d 974, 975-76 (8th Cir. 1991)

Brown v. Geo. Wash. Univ.,.................................

802 A.2d 382, 385 (D.C. 2002

Carter v. South Cent. Bell Tel. Co.,.....................

912 F.2d 832, 840-41 (5th Cir. 1990)

CBOCS W., Inc. v. Humphries,............................ 28, 30

553 U.S. 442, 446 (2008)

Davis v. W. Carolina Univ.,...................................

2016 U.S. Dist. LEXIS 20354 (W.D.N.C.

Feb. 19, 2016), affd, 695 Fed. App’x 696

(4th Cir. 2017)

Daubert v. Merrell Dow Pharmaceuticals, Inc.,......34

509 U.S. 579 (1993)

Deppner v. Spectrum Health Care Res., Inc.,3, 13, 18

325 F. Supp. 3d 176, 187 (D.D.C. 2018)

Domino’s Pizza, Inc. v. McDonald,.............

546 U.S. 470, 474-75 (2006)

Figal v. Vanderbilt Univ.,.............................

2013 Tenn. App. LEXIS 656 (Tenn.

Ct. App. 2013)

Fisher v. Vassar College,.............................

114 F.3d at 1336 (2nd Cir. 1995)

Fuentes v. Perskie,................................................

32 F.3d at 764 (1994)

Gen. Bldg Contractors Ass’n v. Pennsylvania,

458 U.S. 375, 391 (1982)

George v. Leavitt,.................................................. 6, 16

407F.3d 405,414, D.C.Cir.in (2005

Haines v. Kerner,..................................................

404 U.S. 519 (1972)

Howard Univ. v. Roberts-Williams,.................. 27, 32

37A.3d 896, 907, 913 (D.C. 2012)

Jackson v. Birmingham Board of Education,..

544 U.S. 167(2005)

Kakaes v. George Washington Univ.,.............

790 A.2d 581, 583(D.C. 2002)

Keddie v. Pennsylvania State University,......

412 F. Supp. 1264 (E.D.Pa. 1974)

Kouassi v. W. Ill. Univ.,...................................... .

5, 8

2015 U.S. Dist. LEXIS 64926

(Ill. Cent. Dist. Ct. May 18, 2015)

Lewis v. Union City,.............................................

6, 32

Eleventh Circuit Cour, No. 15-11362

(2019)

Maras v. Curators of the Univ. of Mo.,.............

983 F.3d 1023 (8th Cir. 2020)

Mastro v. Potomac Elec. Power Co.,.................

447 F.3d 843, 850 (D.C. Cir. 2006)

Matter of Pamilla v. Hospital for Special Surgery,..27

223 A.D.2d 508(1996)

McAdams v. Marquette Univ.,........

974 N.W.2d 708 (Wise. 2018)

McConnell v. Howard Univ.,............

818 F.2d 58 (D.C. Cir. 1993)

McDonnell Douglas Corp. v. Green,

3, 5

411 U.S. 792 (1973)

....6, 34

Miller-El v. Dretke,............................

545 U.S. 231,247 005)

......7, 26

Mawakana v. Bd. of Trs. of Univ....

926 F.3d 859 (D.C. Cir. 2019

...10

Moini v. Univ. of Tex. at Austin,.....

832 F. Supp. 2d 710, 714 (W.D. Tex. 2011)

Moini v. Univ. of Tex. at Austin,......................

Supp. 2d 710, 714, (2011)

,22

Moini v. LeBlanc................................................ .

456 F. Supp 3d 34 (D.D.C. 2020)

......5

Moini v. Wrighton,......................... ..................

602 F. Supp. 3d 162 (D.D.C. 2022)

1, 5, 9, 23, 29

Moini v. Granberg,............................. .

No. 22-7101 (D.C. Cir. 2024)

Nanko Shipping, USA v. Alcoa, Inc.,

850 F.3d 461, 467 (D.C. Cir. 2017)

Nguyen v. Regents of the Univ. of Cal.,.......

823 Fed. App’x 497 (9th Cir. 2020)

Okruhlik v. Univ. of Ark.,..............................

395 F.3d 872, 879 (8th Cir. 2005

Plotke v. White,................................................

405 F.3d 1092, 1102 (10th Cir. 2005)

Reeves v. Sanderson Plumbing Prods,... 4, 8, 27, 28

530 U.S. 140-141 (2000)

Regents of the Univ. of Mich. v. Ewing,.

474 U.S. 214 (1985

Sackman v. Alfred University,............

717 N.Y.S.2d 461 (Sup. Ct. 2000)

Seye v. Bd. of Trs. of Ind. Univ.,............

2020 U.S. Dist. LEXIS 81111

(S.D. Ind. May 8, 2020), affd, 830 Fed.

App’x 778 (7th Cir. 2020)

Steele v. Mattis,...................................................

899 F.3d 943, 950 (D.C. Cir. 2018)

St. Mary's Honor Center V. Hicks,.................. 3, 4,8

509 U.S. at 510-11 (1993)

Tanik v. S. Methodist Univ.,..................

116 F.3d 775, 776 (5th Cir. 1997)

Tedeschi v. Wagner Coll.,.......................

49 N.Y.2d 652,660 (1980)

Theidon v. Harvard Univ.,......................

948 F.3d 477 (1st Cir. 2020)

Vatel v. All. of Auto. Mfrs.,..................... 3, 13, 18, 25

627 F.3d 1245, 1247 (D.C. Cir. 2011)

Van Zant v. KLM Royal Dutch Airlines,.....

80 F.3d 708, 714 (2d Cir. 1996)

Villanueva v. Wellesley Coll.,...................... .

930 F.2d 124, 129 (1st Cir. 1991)

University of Pennsylvania v. EEOC,........

493 U.S. 182 (1990)

Woroski v. Nashua Corp.,.............................

31 F.3d 105, 110 (2d Cir. 1994)

Statutes

28 U.S.C. § 1257 codified at 42 U.S.C.).....

....1

§ 2000e-I (1972)

Civil Rights Act of 1964,

2, 10, 22, 24. 30, 35

42 U.S.C. § 1981

Constitutional Provisions

United States Constitution, Amendment XIV,

Vll

IV. PETITION FOR WRIT OF CERTIORARI

Dr. Mehdi Moini, a former tenure-track

Associate Professor at the Department of Forensic

Sciences ("Department") at the George Washington

University ("University" or "GWU"), Proceeding pro

se, respectfully petitions this court for a writ of

certiorari to review the judgment of the U.S. Appeals

Court for the D.C. Circuit ("D.C. circuit") (Case No.

22-7101). That Judgment is attached at Appendix

("A"), HA-2.

V. OPINIONS BELOW

The decision by the D.C. circuit denying Dr.

Moini's direct appeal is reported as Moini v.

Granberg, in her official capacity as the President of

the George Washington University, Moini u.

Granberg, (2024). H A-2. The D.C. circuit denied Dr.

Moini's' petition for rehearing and rehearing en banc

on June 12, 2024. HH A-16, A17.

VI. JURISDICTION

Dr. Moini's petition for a rehearing to the D.C.

circuit was denied on June 12, 2024. Hlf A-16, A17.

Dr. Moini invokes this Court's jurisdiction under 28

U.S.C. § 1257, having timely filed this petition for a

writ of certiorari within ninety days of the D.C.

circuit's judgment.

VII. CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Amendment XIV:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

VIII. STATEMENT OF THE CASE

Following ratification of the Fourteenth

Amendment, Congress reenacted the 1866 Act as

part of the Enforcement Act of 1870, including § 1 of

the 1866 Act. The statute was recodified in 1874, but

its basic coverage did not change until 1991. It is

now codified at 42 U.S.C. § 1981. The Civil Rights

Act of 1964, 42 U.S.C. § 1981, was designed to

eliminate discrimination in all employment levels.

See Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 3, 86 Stat. 103 (1972) (codified

at 42 U.S.C. § 2000e-I (1972)) note 14. Section 1981

statute “protects the equal right of ‘all persons

within the jurisdiction of the United States’ to ‘make

and enforce contracts,”’ including employment

contracts, “without respect to race.” Domino's Pizza,

2006, (quoting 42 U.S.C. § 1981(a)). Section 1981

“can be violated only by purposeful discrimination.”

Gen. Bldg Contractors Ass’n 1982. The Supreme

Court has held that the statute also prohibits

retaliation against persons who complain about

racial discrimination prohibited by the statute.

The

plaintiff can

show

unlawful

discrimination with either direct or indirect evidence.

An employee has direct evidence of unlawful

discrimination if the employer “overtly refers to the

employee’s protected trait when making an

unfavorable employment decision.” Deppner v.

Spectrum Health Care Res., Inc., 325 F. Supp. 3d

176, 187 (2018), (cleaned up). For example, “a

statement that itself shows racial [ ] bias in the

decision” qualifies as direct evidence. Vatel v. All. of

Auto. Mfrs. (2011). Because direct evidence is “hard

to come by,” Aka v. Wash. Hosp. Cir., 156 (1998)

(cleaned up), its presence “generally entitle[s] a

plaintiff to a jury trial.” Vatel v. All. of Auto. Mfrs.,

627 (2011).

When a plaintiff must instead rely on indirect

evidence of discrimination, the United States

Supreme Court has developed an analysis that can

be used under these statutes. The analysis comes

from the familiar McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v.

Green, 411 U.S. 802 (1973). When the defendant

articulates a non-discriminatory reason for the

employment action, the plaintiff must then come

forward with sufficient evidence that the defendant's

proffered, non-discriminatory reason is a mere

pretext for actual discrimination. Van See St. Mary's

v. Hicks, 509 U.S. at 510-11 (1993); Fisher v. Vassar

College, 114 F.3d at 1336 (1995), Van Zant v.

KLM, 80 F.3d 708, 714 (1996), (quoting Woroski v.

Nashua Corp., 31 F.3d 105, 110 (1994). The question

becomes whether the evidence, taken as a whole.

supports a sufficient rational inference of intentional

discrimination. St. Mary's, 509 U.S. at 519.1

In the academic institution of higher

education, however, two decisions by this Court

ordered deference to a university’s academic

judgment that was based on “genuine professional

judgment.” Bd. of Curators, Univ. of Mo. 435 U.S. 78

(1978); Univ. of Mich., 474 U.S. 214 (1985). Ever

since, courts have shown considerable deference to

academic judgments in cases brought by faculty

challenging denials of promotion or tenure, often

dismissing the lawsuit or awarding summary

judgment to the institution, seemingly without a

thorough review of the institution’s supporting

evidence for its exercise of “genuine professional

judgment.” Although some judges have rejected

judicial deference when discrimination claims are

before the court, deference persists to this day in

most, but not all, such litigation, rendering the Acts

ineffective.

To level the playing field, the Supreme Court

has interfered in some cases for the tenure-track

faculty's benefit (see, for example, University of

Pennsylvania 493 U.S. 182 (1990)). The Supreme

Court held that universities could be required to

turn over confidential peer reviews to individuals

alleging discrimination; see also McAdams, 974

N.W.2d 708 (2018) and McConnell, 818 F.2d 58

(1993). Despite a few rejections of deference to

academic judgments concerning faculty employment

issues, the courts, for the most part, have continued

to rely on the “academic expertise” of faculty and

1 The Supreme Court more recently reaffirmed this framework

in Reeves.

administrative decision-makers. Throughout the

1990s and early 2000s, opinions using language

deferential to academic judgments were far more

frequent than those scrutinizing a defendants’

justification for tenure denials either based on

alleged discrimination or breach of contract.2

Concerning evidence of direct discrimination,

the courts label even the clearest reference "to the

employee’s protected trait when making an

unfavorable employment decision Q" as "insufficient"

to avoid sending the case to the jury. Moini v.

Wrighton 602, 162 (2022), Moini v. Granberg, (2024).

For evidence of indirect discrimination, the

courts apply deference to the universities in all three

aspects of the McDonnell Douglas framework: In

establishing a prima facie case of discrimination, for

example, the courts even make it difficult for a

minority plaintiff to prove he is a member of a

protected class, ignoring the Supreme Court ruling

in several cases. Moini v. Wrighton 602, 162 (2022).

On the other hand, it makes it easy for the

universities to produce a “legitimate, nondiscriminatory reason” for its actions. It seldom

investigates if the "legitimate reason" was based on

“genuine professional judgment.” Id. Finally, to

prove “sufficient evidence that the defendant's

2 See, e.g., Tanik 1997, (summary judgment for the university,

no trial); Villanueva 1991, (summary judgment for the college,

no trial); Broussard-Norcross 1991, (summary judgment for the

college, no trial); Brown 2002, (summary judgment for the

university on plaintiffs breach of contract claim, no trial);

Okruhlik 2005, (judgment notwithstanding the verdict for

university after jury verdict for plaintiff); Qamhiyah 2008,

(summary judgment for the university, no trial); Figal 2013,

(summary judgment for the university, no trial); and Kouassi

2015, (summary judgment for the university, no trial).

proffered, non-discriminatory reason is a mere

pretext,” the courts raise the bar so high that it

becomes impossible for a plaintiff to overcome. Id.

For example, one way to show pretext for the

plaintiff is to use comparators; however, there are

significant differences among the courts regarding

the definition of proper comparators at higher

education institutions, rendering it arbitrary.

To “clean up, and clarify once and for all the

proper standard for comparator evidence in

intentional-discrimination cases,” the Eleventh

Circuit Court provided examples of similarities

between a plaintiff and a proffered comparator that

would support a valid comparison, including: “will

have engaged in the same basic conduct (or

misconduct) as the plaintiff’; “will have been subject

to the same employment policy, guideline, or rule as

the plaintiff’; “will ordinarily (although not

invariably) have been under the jurisdiction of the

same supervisor as the plaintiff’; “will share the

plaintiffs employment or disciplinary history”; and

may not have precisely the same job functions. Lewis

v. Union City, Eleventh Circuit Court, (2019). The

Supreme Court ruling in Miller-El v. Dretke, 545

U.S. 231,247 (2005) also notes, “None of our cases

announces a rule that no comparison is probative

unless the situation of the individuals compared is

identical in all respects[.]" In George v. Leavitt, 407

405,414, (2005), the court ruled: “[t]he question of

whether employees are similarly situated in order to

show pretext ‘ordinarily presents a question of fact

for the jury.'” Still, each court follows its own

arbitrary rules that favor universities, and a case is

seldom sent to the jury.

The rationale behind judicial deference by the

courts is that tenure decisions are too complex for

them to intervene. An example of this was

articulated particularly well in the case of Keddie v.

Pennsylvania State University, 412 F. Supp. 1264

(1974); the court found that the professor's political

activities had not influenced the decision to deny him

tenure and stated:

This court is powerless to substitute its

judgment for that of the University as to

whether plaintiffs academic credentials are

such that tenure should have been awarded.

The judiciary is not qualified to evaluate

academic performance. The courts do not

possess the expert knowledge or have the

academic experience which should enlighten

an academic committee's decision. The courts

will not serve as a Super-Tenure Review

Committee. Id. at 1272 (emphasis added).

However, even the proponents of academic

deference limit its applications in cases involving 1)

discrimination (see e.g. Mawakana v. Bd. of Trs. of

Univ. 926 F.3d 859 (2019), 2) "arbitrary, capricious,

or an abuse of discretion[,]" (N.Y.C.PL.R. § 7803

(2014)), and 3) when "a substantial departure from

accepted academic norms or from procedural

regularity, to demonstrate that the university did

not actually exercise professional judgment," (Tenn.

App. LEXIS 656 (Tenn. Ct. App. Sept. 27, 2013)). But

even in these cases, most courts find ways to

circumvent the fact that Congress specifically

removed the previous Title VII (and §1981)

exemption for educational institutions in 1972 to

make them unquestionably subject to the general

prohibitions. Yet, in some recent cases, the language

of deference may not be as obvious. Still, courts

continue to dismiss lawsuits or award summary

judgment to defendant colleges and universities in

promotion or tenure denial cases, although after

what appears to be a "careful review" of the

plaintiffs and the defendant’s evidence.3 Finally, to

give deference to the universities, the courts deny

individual components of a discrimination lawsuit as

"insufficient" rather than taking the evidence as a

whole, to see if it supports a sufficient rational

inference of intentional discrimination. St. Mary's

Honor Center V. Hicks, 509 U.S. at 510-11 (1993).4

Despite these clarifications, the lower courts'

divergence from the original Supreme Court analysis

indicates a weakness in the original analysis that

has drastically reduced the rights of tenure-track

faculty members under these statutes. Indeed, it is

more important that courts apply these statutes to

"high-level" positions because minorities and women

have historically been kept out of high-level, highpaying, tenured positions and kept in entry-level

positions such as Research Professors or Lecturers.

The analysis must be altered to effectuate the

congressional intent behind these statutes to ensure

3 Maras 2020, (tenure denial); Seye 2020, affd, 830 Fed. App’x

778 (7th Cir. 2020) (tenure denial); Nguyen 2020, (tenure

denial); Theidon 2020, (tenure denial); Davis 2016, affd, 695

Fed. App’x 696 (4th Cir. 2017) (tenure denial); Kouassi 2015

(tenure denial).

4 The Supreme Court more recently reaffirmed this framework

in Reeves. 120 S.Ct. 2097, at 2108.

that minority faculty members enjoy the protections

they are entitled to under Title VII and §1981.

1. The Denial of Tenure and Promotion

A perfect example of the

overreaching judicial deference is the case of Moini u.

Granberg, in her official capacity as the President of

the George Washington University. This case

presents whether the lower courts bypassed the

congressional intent behind the §1891 statute first

by dismissing the evidence of direct discrimination

against Moini. Second, by denying Moini's evidence

of indirect discrimination, 1) denying Moini's

comparators due to arbitrary differences; 2) ignoring

the University’s own Dispute Eesolution Committee

that decided the University decision against Moini

was "arbitrary, capriciously" rather than based on

a genuine academic reason; 3) ignoring that the

University had substantially deviated from its rules,

guidelines, and the accepted academic norms, 4) not

viewing “the evidence in the light most favorable to

the nonmoving party and draw all reasonable

inferences in its favor.” Mastro 2006; and finally, 5)

ignoring that for pro se litigants, the courts generally

subject their pleadings to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v.

Kerner 404 U.S. 519 (1972), (cleaned up) and

viewed all evidence favoring the University. Third,

the court denied Moini's retaliation claim formulated

by the court-appointed amicus curiae. Fourth, the

courts denied Moini's breach of contract claims.

la. Moini's Employment History Prior to GWU

Dr. Moini was born in Iran and moved to the

United States in 1976. After obtaining his Ph.D.

from Michigan State University in 1986 and a

postdoctoral position at the University of Florida for

about two years, Dr. Moini worked as a Senior

Research Scientist, Lecturer, and Director at the

University of Texas-Austin (“UT/Austin”) from

12/1989-10/2008. When UT/Austin declined to offer

Moini a tenure-track position and then declined to

renew his employment, he filed a lawsuit alleging

race, national origin, and age discrimination claims

under Title VII and 42 U.S.C. § 1981. § 1983. See

Moini 2011. The Western District of Texas granted

summary judgment in favor of the University of

Texas on June 2, 2011. Moini Supp. 2d 710, 714,

2011. Dr. Moini worked as a research professor at

Texas State University for about two years. Then,

from 01/2010-01/2014, he served in the US

Government as a research scientist at the

Smithsonian Institution. Dr. Moini received tenure

at the Smithsonian in 01/2013.

lb. Dr. Moini’s Application to George

Washington University

In 2013, Dr. Moini applied to the GW’s

Department of Forensic Sciences ("Department") of

the Columbian College of Arts and Sciences

("CCAS"). Dr. Moini was the “top candidate” for the

role. With unanimous faculty support, Dr. Victor

Weedn, the Chair of the Department of Forensic

Sciences, recommended to administrators that Dr.

Moini be hired as a tenured Full Professor. However,

The University’s Provost was unwilling to offer Dr.

Moini a tenured position after they learned about his

prior discrimination lawsuit against UT/Austin. Dr.

Moini eventually accepted an offer from the

University for the position of Associate Professor on

a fast track to tenure with a three-year tenure clock

and a tenure deadline of "no later than June 30,

2016." Interim Dean Guenther on August 5 approved

Dr. Moini’s request for a delay, assuring him that

“[n]o more formal request is needed” and that Dr.

Moini could “[t]ake whatever time [he] need[ed].”5

However, a few days after Dr. Moini started at

GWU, the University Provost, without Dr. Moini's

consent or signature, revised his contract by

extending Dr. Moini’s tenure clock by one year to

June 30, 2017. During this lawsuit, the University

claimed it was because Dr. Moini did not start in

September 2016, but the University had already

approved Dr. Moini to “[t]ake whatever time [he]

need[ed].”

lc. Dr. Moini’s Tenure Application

The University, relying on the revised offer,

did not inform Dr. Moini of his tenure status by June

30, 2016, as promised in his original contract signed

by both parties. According to the Faculty Code, if not

informed by June 2016, Dr. Moini would

automatically acquire tenure effective September 1

5 The parties dispute the date of Dr. Moini’s acceptance and

whether Dr. Moini’s controlling tenure timeline was three or

three-and-a-half years. Compare J.A. 133, with J.A. 143. These

distinctions are immaterial to the arguments advanced by

amicus here but are likely to be relevant to those presented by

the other parties.

2016.6 Instead, the University required Dr. Moini to

prepare his T&P application and apply for tenure in

September 2016. On April 1, 2016, the Department

Chair, Dr. Weedn, was detailed to the Justice

Department and assigned Dr. Walter Rowe as the

acting Chair in charge of Dr. Moini's T&P dossier.

Dr. Rowe was biased against Dr. Moini. While

in 2013, Dr. Rowe had voted for Dr. Moini's hiring

(the Departmental vote was unanimous), but after he

was informed that the provost would not approve Dr.

Moini's tenured full professor position because of Dr.

Moini's lawsuit against UT/Austin, he became hostile

against Dr. Moini. During the entire Dr. Moini’s

probationary phase (three years), he systematically

denigrated immigrants and foreigners in his

conversations with Dr. Moini and belittled Dr. Moini

in the classroom in front of students. Dr. Rowe was

also the Director of Graduate Studies for Forensic

Chemistry, a division of which Dr. Moini was a

member. In the Fall of 2014, when Dr. Moini’s

teaching started, he assigned Dr. Moini to teach the

forensic accreditation body mandated one credit

problematic Graduate Seminar that Dr. Rowe called

"a carrier killing course" because Dr. Rowe used to

teach that course and had systematically received

below Departmental averages student teaching

evaluation scores. However, without informing Dr.

Moini of the history of Graduate Seminars, he

assigned them to Dr. Moini.

6 Both the district court and the appeals court ignored the

University’s breach of contract and Moini’s claim that based on

the University’s Faculty Code he should have granted tenure in

September 2016.

The animosity of Dr. Rowe systematically

increased against Dr. Moini until on or about

January 2016, and after a mass shooting when an

AR15 was used because of Dr. Moini’s MiddleEastern Iranian race, Dr. Rowe told Dr. Moini

directly, "If you buy an AR15, the FBI will raid your

house." This statement “overtly refers to the

employee’s protected trait[,]”Deppner v. Spectrum

Health Care Res 2018, (cleaned up), and qualifies as

evidence of direct discrimination’ and entitles a

plaintiff to a jury trial, Vatel v. All. of Auto: Mfrs

2011, because Dr. Rowe was the most senior member

of the Department Personnel Committee deciding on

Dr. Moini's T&P. Moreover, only three months later,

Dr. Rowe became the acting Chair, directly in charge

of preparing Dr. Moini's tenure/promotion dossier

and writing a recommendation (transmittal letter) to

the higher-level University leaders. As such, on April

28. 2016. the CCAS Dean’s office informed Dr. Rowe

of his duty to prepare Dr. Moini's T&P dossier and

the mid-tenure review, stating: "Since you are

interim chair, we'll have to give you access to the

Chair's folder on the cloud. This folder has materials

that would be beneficial for you during your term. In

the meantime, attached are the guidelines for

promotion and tenure as well as mid-tenure

[reviews].” Dr. Rowe forwarded these Guidelines to

Dr. Moini to prepare his T&P application. The

Dean's office email clarifies that these guidelines

were binding since Faculty Code 2015 warned the

Department Personnel Committee that "[failure to

conform to published tenure or promotion policies,

procedures, and guidelines;" may constitute

"compelling reasons for a School-Wide [CCAS]

Personnel Committee, a dean or the Provost to

independently concur or nonconcur with a faculty

recommendation," emphasis added.

The tenure and promotion guidelines

discussed various documents that should be included

in the candidate dossier. It stated: "For more details

about describing the different aspects of teaching

contributions, please reference the document:

Evaluating Teaching for Promotion and

Tenure: “What Should a Dossier Contain?”” by

the University Teaching & Learning Center

(TLC). (Original emphasis). The T&P guidelines, the

mid-tenure procedure, and the TLC guidelines

required the Department to conduct internal peer

evaluation of teaching and required Dr. Moini's

student evaluations of teaching to be compared "with

similar courses (with similar enrollments) taught by

others." This comparison was also requested in the

Chair of College Personnel Committee (Dr. Duff)

recommendations: “Please provide quantitative

teaching data; also please indicate how that data

compares to others teaching the same or similar

courses.”

Moreover, the Faculty Code 2015 required

"[s]o that faculty members may assess their potential

for achieving tenure each school, and where

appropriate, each department, shall establish and

publish written procedures to provide reviews to

guide faculty members concerning progress toward

tenure." J.A.448. As a result in December 2015, the

College published its mid-tenure review guidelines

for "full-time tenure-track faculty members."

Appellant-final-brief, P25. In addition, based on the

Faculty Code above, the Department Constitution

also required, "[a] personnel committee composed of

at least one member from each of the divisions of

Forensic Sciences will a. evaluate annually tenuretrack faculty and inform them of their progress

toward tenure[.]" Id.

Dr. Rowe did not conduct any of Dr. Moini's

required tenure reviews (multiple internal peer

evaluation of Dr. Moini's teaching by tenured faculty,

review by a Department Personnel Committee, and

the mid-tenure review) and did not compare Dr.

Moini’s student evaluations of Graduate Seminar

courses with his own teaching of the same courses.

The TLC Guidelines also required external peer

reviews of Dr. Moini's teaching. As such, Dr. Moini

asked the TLC to peer review his teaching in the

problematic Graduate Seminar class. In April 2016,

three faculty from the center visited Dr. Moini's

Graduate Seminar, conducted a peer review, and

wrote a very positive recommendation for Dr. Moini's

teaching. The letter had strongly complemented Dr.

Moini's efforts to engage students in the problematic

course. Dr. Rowe did not include this letter in Dr.

Moini's dossier. The TLC fourth (4a) item is "student

letters supplied by the candidate." Dr. Moini had

received strong letters of support from all five of his

graduate students, who had also taken at least 3-4

non-research courses with him, including two

Graduate Seminar courses, and had completed their

degrees under his supervision. These students were

able attest to Dr. Moini's excellence not just in

teaching but also in mentoring, guidance, advising,

and job placement. Against the TLC guidelines, Drs.

Rowe and Podini told Dr. Moini to remove those from

his application so they could request them directly

from students, even though student letters sought by

the Department is a separate item (4b). Moreover,

they intentionally did not even include the two

letters they received at their request. The evidence

shows a third student had asked them when to send

her a letter, but they did not even bother

responding.

In addition, based on the Department Chair's

comments on Dr. Moini's annual reviews, Dr. Moini

received two merit raises above 3% for two years

before his tenure review. In his letter to Chairs,

Dean Arnesen stated: "Please remember that the

comments you submit [on faculty annual review] will

later become the basis for the annual salary merit

recommendations." The merit raises letters stated:

"Once again, we provide this [merit] pool to reward

individual performance rather than as an across-theboard salary increase. We remain committed to

rewarding faculty and staff for excellent work."

Indicating chair reports on Dr. Moini's annual

reviews were "excellent." Such indicia of positive

performance support an inference of pretext because

the employer gave positive performance reviews to

Dr. Moini just before denying his tenure. See,

e.g., George v. Leavitt, 407 (2005).

Moreover, Dr. Rowe did not discuss Dr.

Moini's excellent job in his other courses that he had

discussed in Dr. Moini's annual report 2015-2016

only four months before denying Dr. Moini's tenure

and promotion, stating, "[Dr. Moini's] teaching in

core forensic chemistry courses is well regardedf,]"

and "[t]he students recognize his expertise and

appreciate the depth and rigor of his lecture."

Therefore, secret from Dr. Moini, Dr. Rowe

intentionally did not add any teaching-related

evidence to Dr. Moini's dossier that could have

helped Dr. Moini to showcase his teaching

excellence, nor did he discuss those in his

transmittal letter, substantially deviating from the

University's established norm and procedures, and

submitted Dr. Moini's dossier without these critical

components of teaching excellence. While Dr. Rowe

was not the ultimate decision maker, “The actions of

a discriminatory supervisor that feed into and

causally influence the decision-maker’s ultimate

determination may also be the proximate cause of an

adverse employment action.” See Steele v. Mattis,

899 943,950(2018).

In mid-November 2016, the Forensics

Department’s Personnel Committee undertook the

first review of Dr. Moini’s dossier that Dr. Rowe had

prepared. The Committee noted that Dr. Moini had a

“strong research program ... in which he [ ] involved

[the Department’s] master’s degree candidates” and

received “strongly positive” external reviews from

peers in his field. J.A. 388. However, the Committee

was initially unwilling to vote in favor of Dr. Moini’s

tenure “at this time” because student evaluations of

his teaching in one-credit graduate seminar classes

were relatively low. Id. Because the Committee

wanted to retain Dr. Moini, they asked the Vice

Dean for Faculty and Administration, Eric Arnesen,

to extend Dr. Moini’s abbreviated tenure clock to

give him the opportunity to “improve his teaching

skills,” which they believed he would be able to do.

Id.

On November 18, 2016, Arnesen emailed thenVice Provost for Faculty Affairs Christopher Bracey,

asking bim to “rule on the request.” J.A. 392. Bracey

then emailed Dianne Martin, the former Vice

Provost, to request her counsel. He stated, “I’m

inclined to reach out to the candidate and suggest

that he request an extension, which might solve the

problem for everyone for the time being” before

prompting Martin: “Thoughts?” J.A. 391. Martin

responded on November 19. “I recall this case,” she

wrote. Id. “It was a [sic] very controversial due to

issues at a previous institution in Texas. You can

Google to see more about that. . . . [Provost] Forrest

[Maltzman] could grant extension if faculty

requested it. Do the Google before you discuss with

Forrest.” Id. (emphasis added).

Bracey had

intended, before learning of the University of Texas

lawsuit, to suggest that Dr. Moini request a tenure

clock extension himself. But nine days later, on

November 28,

2016,

after discovering the

discrimination lawsuit through Martin’s “Do the

Google” email, Bracey wrote to Provost Forrest

Maltzman that he was “about to deny” the tenure

clock extension request but wanted to get

Maltzman’s input before doing so. J.A. 393. Tellingly,

Bracey’s email referred to Dr. Moini’s discrimination

lawsuit as relevant to the pending extension request:

“For reference, this is a faculty member who

previously sued (and lost) a case against U Texas.

Google him. In any case, he’s up for tenure THIS

YEAR . . . .” Id. (emphasis added). At his deposition,

Maltzman admitted that he had “known that there

was some lawsuit against the University of Texas

involving [Dr. Moini].” J.A. 953. The University

ultimately denied the requested extension. J.A. 1058.

This was the second time that the University had

overtly referred to the Dr. Moini’s protected trait

when making an unfavorable employment decision.

Deppner v. Spectrum Health Care Res., Inc., 187,

(2018) (cleaned up). The second evidence of direct

discrimination, Vatel 1245, 1247, 2011, should have

also entitled Dr. Moini to a jury trial. Id. 1247.

However, both courts refused to accept this

evidence of direct discrimination.

On December 18, 2016, after the extension

denial, the Forensics Department held two formal

votes—one, by its four tenured faculty members) on

Dr. Moini’s tenure, and the other, by its two .more

senior faculty members, on Dr. Moini’s promotion to

full professor. Each vote was unanimous in Dr.

Moini’s favor. J.A. 413; see also J.A. 410-12. Under

the Faculty Code, the Department’s tenure

recommendation could not be overruled unless there

were “compelling reasons” to do so, such as flaws in

the decision-making process or reasoning behind the

decision. See J.A. 311, 324, 454—55.

On February 14, 2017, the CCAS Promotion

and Tenure Committee, comprised of tenured Arts

and Sciences professors outside of the Forensics

Department, headed by Dr. Duff (Professor of

Religion), voted to “not concur” with the

Department’s tenure recommendation because “the

fact that Prof. Moini’s [student evaluation] scores are

below the department’s average[.]” J.A. 425. On

March 7, 2017, CCAS Dean (Vinson) made a similar

case against Dr. Moini’s tenure directly to Maltzman.

J.A. 426-29. The next reviewer was Provost

Maltzman, whom Bracey had consulted regarding

the potential extension of Dr. Moini’s tenure clock

four months earlier. On April 10, 2017, Maltzman

emailed Dr. Moini to inform him that he did not

tenure

Department’s

with

the

concur

recommendation. J.A. 440. On May 9, 2017, the

Faculty Senate Executive Committee recommended

that Provost Maltzman extend Dr. Moini’s tenure

track by two years to give him adequate time to

demonstrate “excellence in teaching.” J.A. 455—57.

However, on June 6, 2017, then-President Steven

Knapp asked Maltzman to discuss Dr. Moini’s tenure

application and the Faculty Senate Executive

Committee’s recommendation to extend Dr. Moini’s

tenure clock

J.A. 471-73. On June 22, 2017,

Provost Maltzman informed Dr. Moini that he would

not be receiving tenure and that his appointment for

the 2017-2018 school year would be his last at the

University. J.A. 624.

Id. Dr. Moini’s Grievance of his Tenure Denial

In November 2017, Dr. Moini submitted his

grievance to the Faculty Dispute Resolution

Committee. J.A. 478—83. First, the Hearing Panel,

comprised of three faculty members from across the

University, voted two to one to uphold Dr. Moini’s

tenure denial, finding that it was not arbitrary and

capricious, stating, "There is no serious challenge to

his record of research and scholarship. The principal

evidence against Dr. Moini comes from the student

evaluations of his teaching of the one-credit

Graduate Seminar course required of all incoming

students in the program and then repeated at the

end of their program." J.A. 620. The chair of the

panel dissented. J.A. 621-23. Dr. Moini appealed

the Hearing Panel’s decision to the Dispute

Resolution Committee’s Appeals Panel. On June 1,

2018, with Dr. Moini again representing himself and

Bracey representing the University, Vice Provost

Bracey claimed, "the poor student evaluations in that

[one credit Graduate Seminar course] were sufficient

to demonstrate lack of excellence in teaching[.]"

J.A.626. Emphasis added. The University's Dispute

Resolution Committee disagreed, and on June 12,

the Appeals Panel—comprised of eight faculty

members from across the University—“unanimously

f[ound] the decision of the Hearing Panel to be

seriously erroneous and overrule[d] the decision.”

J.A. 625. The panel stated, "to rely solely on, the

student evaluations of this one [credit] course, and

disregard every other metric upon which teaching

should be evaluated to deny tenure and promotion,

as the reviewing entities did, . is arbitrary and

capricious [.]" Specifically, “[t]he Appeals Panel

recommend[ed] that the non-concurrence of the

university reviewing entities, challenged by Dr:

Moini, be reversed and that Dr. Moini .be granted

tenure and promoted to Full Professor consistent

with the recommendation of the Department

Personnel Committee.” J.A. 625. Once again,

however, Provost Maltzman interceded, and on July

23, 2018, concluded that there were “compelling

reasons” not to implement the Appeals Committee’s

recommendation and therefore rejected it because

"Moini has scored roughly at or below departmental

averages." [J.A.630]. Emphasis added. On September

17, 2018, the Executive Committee of the Board of

Trustees sided with the Provost. J.A. 665 (Email

Summarizing Meeting).

During the discovery phase of this lawsuit, it

became clear that both Vice Provost Bracey and

Provost Maltzman had misspoken. Several of the

tenure-track faculty whose student evaluation scores

were provided by the University had received

significantly below their departmental average

student evaluation scores in several of their courses,

and their average student evaluations were all below

their departmental averages, indicating "at or below

departmental averages student evaluation scores" as

the barometer for tenure denial was a pretext only to

deny Dr. Moini's T&P. Both courts ignored this

pretext.

le. Dr. Moini’s Complaint to the District Court

for the District of Columbia

In October 2019, Dr. Moini filed this pro se

Complaint against the President (Case No. l:19-cv03126). He alleged that denying tenure constituted

discrimination in violation of Title VII, a D.C. human

rights statute, and 42 U.S.C. 1981. He also alleged

that the University had violated its contractual

obligations during Dr. Moini’s tenure and grievance

processes. Moini v. LeBlanc 456 F. Supp. 3d 34

(2020).

The President moved to dismiss the

Complaint, while the Court held that Dr. Moini’s

Title VII and D.C. law claims were time-barred, it

denied the motion as to Dr. Moini’s contractual

claims and his claims under § 1981. See id. After

discovery, both parties moved for summary

judgment. The Court found that “the University

propounded a legitimate reason for denying tenure:

That Dr. Moini had not met the requisite standard

for teaching." However, the court could not show any

evidence that at or above departmental averages was

a prerequisite for tenure and promotion. The court

found Dr. Moini's evidence of Middle-Eastern race

and evidence of direct discrimination were

insufficient. The court also denied Dr. Moini's

comparators, stating "none of Moini’s proffered

comparators present employment situations that

were “nearly identical” to his." For example, the

court stated, "Jones taught in a different department

[within CCAS] than Moini." The court also dismissed

Dr.

Moini's

demographic

statistics

stating,

“[W]ithout more,” this kind of demographic

information “does not support an inference of

discrimination.” It also denied Dr. Moini's .merit

raises because "Moini gives no evidence about these

raises, including their size or timing[,]" by refusing to

see Dr. Moini's one page exhibit that included this

information, stating because the "Court is not

required 'to sift through hundreds of pages of the

record[.]" Id. The district court denied the University

guidelines and procedures, even those sent by the

Dean's office, as "non-binding," stating they were not

“established policies and procedures.” Id. Against the

University guidelines, the court even justified the

University removing Dr. Moini's student letters of

support from his T&P applications, stating this

"anomaly" shows "no discriminatory motive." Id. In

short, the court failed to see that the evidence, taken

as a whole, supports a sufficient rational inference of

intentional discrimination.

2. Direct Appeal

On 2023, Dr. Moini submitted his briefs

(original briefs), alleging that the district court's

decision to grant the University's motion for

summary judgment and deny his cross-motion was in

error. Dr. Moini alleged that the University's denial

of his tenure and promotion to a full professor

violated §1981 and breached his contract. Moini v.

Granberg, No. 22-7101 (2024). Dr. Moini claimed

discrimination, disparate treatment, and breach of

contract. Id.

After the original briefs, the court-appointed

amicus curiae and ordered a re-briefing ("final

briefs"). May 8, 2023 Order Appointing Amicus

Curiae. The D.C. circuit ordered the parties to

address (1) whether “Middle Eastern” is a race for

the purpose of a claim under 42 U.S.C. § 1981, and if

so, whether a reasonable jury could conclude that

appellant is a member of such a race; and (2)

whether a plaintiff advancing a claim under § 1981

based on alleged employment discrimination is

required to establish a breach of contract. Id. It also

specified that the parties are “not otherwise limited”

in their briefing. Id.

Because there was only limited space left after

addressing the court's two race questions, amicus

only addressed a third issue: "3. Whether a

reasonable jury could conclude that the University

retaliated against Dr. Moini, in violation of section

1981, for his protected activity of fifing a race

discrimination lawsuit against the University of

Texas-Austin [UT/Austin]." Amicus-final-brief, P2.

Amicus easily concluded, "through both direct and

indirect evidence, that Dr. Moini faced retaliation for

a protected activity. Documents the University

turned over during discovery would permit a

reasonable jury to find that the University rejected

an extension to Dr. Moini’s tenure clock and

ultimately denied him tenure because he had

litigated a discrimination lawsuit against a former

employer. Even standing alone, this issue would

demand reversal in part and remand for a jury trial."

Id., PI5.

On May 1, 2024, with regard to Dr. Moini's

evidence of direct intentional discrimination, the

court of appeals concluded:

intentional

prove

can

plaintiff

discrimination through direct or indirect

evidence. Direct evidence includes any

statement that “itself shows racial . . . bias in

the [employment] decision.” Vatel v. Alliance

of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir.

2011). Dr. Moini has not identified such a

statement. Before the district court, he cited

comments by Dr. Walter Rowe that allegedly

denigrated immigrants and foreigners. Such

general remarks, however, do not show “bias

in the [employment] decision.” Id.

However, Dr. Moini identified two such

statements in his original briefs, his lower court

filings, and his final brief, including 1) by Dr. Rowe

regarding his "AR15" comment and 2) by Drs.

Bracey/Maltzman denying Dr. Moini's tenure clock

extension because of his race-based lawsuit against

UT/Austin. 2 J.A.391, J.A.393. Therefore, the appeal

court erred, ignoring these undisputed comments as

evidence of direct discrimination that should have

entitled Dr. Moini to a jury trial. Vatel v. Alliance of

Auto. Mfrs., 627 F.3d 1245, 1247 (2011).

Concerning Dr. Rowe and the University not

conducting Dr. Moini's three tenure reviews, the

Panel only responded that "the decision not to

provide Dr. Moini with an official mid-tenure review

was made by Dr. Victor Weedn, the preceding

Department Chair, based on a representation by

Associate Dean Eric Arnesen[.]" Judgment, P5. But,

on April 11, 2016, Dr. Weedn wrote the email

(J.A.344), while he was detailed to the Justice

Department and before April had transferred all of

his responsibility to Dr. Rowe ("Weedn was

Department Chair before April 2016." Appellee’sfinal-brief ppl 1,37, Appellant-final-reply-brief, P35).

Moreover, on April 28, 2016, the Dean's office sent

Dr. Rowe the T&P Guidelines and the mid-tenure

and other procedures. J.A.347. In addition, Dr.

Weedn was not tenured and was ineligible to conduct

mid-tenure

J.A.34

evaluations.

(mid-tenure

guidelines stated, "[m]ultiple peer reviews by tenured

faculty of the candidate's teaching are required."

J.A.157, (italic emphasis added)). Moreover, on or

about year 2020, the University has admitted that

"a mid-tenure review of Plaintiff was not done,"

J.A.721(Response-7), and "[t]he previous department

chair did not arrange for peer reviews of Professor

Moini’s teaching." Appellant-original-brief, P26.

Additionally, the D.C. circuit ignored that Dr.

Moini’s 2016-2017 annual review was not conducted.

J.A.722, (Response 10). The claims about the

University’s obligations during a particular academic

year accrued on the final day of that academic year.

Mawakana v. UDC (2019). Since Dr. Moini applied

for tenure in September 2016, when the academic

year 2016-2017 had already started (Compl. Ex26

1}82), the final day was May 31, 2017, well within the

3-year limit. But Dr. Rowe testified that it "[n]ever

occurred to me to do [the reviews]." Id., P44.

The D.C. circuit also overlooked that these

established procedures had been applied to Dr.

non-Middle-Eastern

tenure-track

Moini’s

comparators at the College (such as Jones in 2016

and

i, and at the Department (Podini in

2014 and Marginean and 2019), who were properly

reviewed. Original-reply-brief, P26.

providing

direct evidence of disparate treatment. Appelantthe

Demonstrating

P20.

original-reply-brief,

University was substantially not in compliance with

its own rules (See Kakaes v. George Washington

Univ., 790, 583 (2002). See also Brady v. Off. of

Sergeant at Arms, 490, 493 (2008), which establishes

a material breach of contract. See Reeves, supra 140141. In other rulings, the D.C. circuit affirmed the

district court’s instruction that the contract promised

a formal appraisal. Howard Univ. v. RobertsWilliams, 37 A.3d 896, 907, 913 (2012). Therefore,

the Panel contradicts the ruling of this circuit. In

addition, the D.C. circuit has stated that — absent a

showing of unlawful discrimination — review of

academic promotion disputes is ordinarily limited to

determining "whether there has been substantial

compliance with" the University's internal rules and

procedures

for

evaluating

applicants

for

advancement. Allworth v. Howard Univ., 890 A.2d

194,202

(2006). Other

appeals

courts

have

established that institutions such as GWU are held

to the standard of "substantial compliance" in

following its own rules and procedures ( see Tedeschi

v. Wagner Coll., 49 N.Y.2d 652,660 (1980); Matter of

Pamilla v. Hospital for Special Surgery, 223 A.D.2d

508(1996)). The Panel's Judgment that Dr. Rowe's

action doesn't qualify for evidence of intentional

discrimination contradicts these courts' rulings. On

these records, the jury could reasonably find that the

deviation from established rules by Dr. Rowe and the

University in conjunction with Dr. Rowe's and

Provosts Bracey/Maltzman's racial comments to Dr.

Moini in proximity to his tenure review "is adequate

to sustain a finding of liability for intentional

discrimination." See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 140-141 (2000).

The court-appointed amicus argued that

§1981's implied cause of action also encompasses

retaliation claims, CBOCS W., Inc. v. Humphries,

553 U.S. 442, 446 (2008), the University response to

Department extension request, and the University

changing position after realizing Dr. Moini's

discrimination lawsuit against the UT/Austin

through Martin’s and Bracey's' emails, and explicitly

referring to Dr. Moini’s protected activity, are

evidence of direct retaliation sufficient, standing

alone, to merit a jury trial on this claim. But the

court rejected this claim, stating, "Dr. Moini has

forfeited any § 1981 retaliation claim he may have

had by failing to raise it in his complaint. See

Kingman Park Civic Assn v. Williams, 348 F.3d

1033, 1039 (2003) (declining to address the merits of

an argument “raised for the first time on appeal”)."

Judgment, Tf App-1. But, court-appointed amicus had

argued that Dr. Moini had discussed the retaliation

in several sections of his filings and it was easily

identifiable. Therefore, the use of the word

retaliation was justifiable and sufficient. Amicus

stated "Moini raised a retaliation claim in his

summary-judgment

brief and

the

"Factual

Background" section that a different Dean and

Provost in 2013 denied a recommendation "that

Moini be hired as a tenured professor because of his

lawsuit

against

University

Texas."

Appellee'sjbrief, P47, internal parentheses omitted.

Amicus also points to a paragraph in Dr. Moini’s

Declaration stating that "my lawsuit based on my

Middle-Eastern race played a major role "in the

denial of his tenure application." Amicus also argued

that we can find a retaliation claim in Dr. Moini’s

complaint because it asked the court to "enjoin

Defendant from any further acts of discrimination

and/or retaliation against Plaintiff." J.A. 112

(emphasis added). Amicus also argues that Dr. Moini

made a retaliation claim in his summary-judgment

briefing, where he referenced events related to his

UT/Austin lawsuit in his Statement of Undisputed

Facts. But the D.C. circuit stated that "the district

court was not required to infer new legal claims from

such factual references." Moini v, Granberg, No. 227101 (2024). However, the amicus argued that the

Appellant's claim under section 1981 should be read

broadly and to include a retaliation theory. In

particular, they argued that because there is no

separate provision of section 1981 that prohibits

retaliation, it would be difficult for any litigant

(mainly a pro se plaintiff) to discern that they needed

to plead retaliation in a separate count in the

complaint. Amicus-reply-brief (at 24-26). The Panel

not addressing the court-appointed amicus argument

is an error.

Even if we accept the Panel's contention that

Dr. Moini's evidence regarding the retaliation claim

was insufficient, Dr. Moini still had evidence of

direct discrimination regarding his tenure-clock

extension denial and Dr. Rowe's statement of racial

bias. The evidence, taken as a whole, shows that Dr.

Moini has done enough that a reasonable jury could

conclude that Dr. Moini has a valid claim under

§1981. This should be irrespective of whether the

harm was caused by retaliation or discrimination

since courts generally have not distinguished

between retaliatory and discriminatory discharge

when determining whether § 1981 applies to an

employee's claim, as the harm caused by either type

of termination is the same. See, Carter v. South Cent.

Bell Tel. Co., 912 F.2d 832, 840-41 (1990). The

Supreme Court felt that making such a distinction

would be pointless. Since termination harms the

employee regardless of the employer's motive, the

Court determined there was no need to differentiate

between

discriminatory

and

retaliatory

discharge. Id. The Supreme Court in CBOCS West,

Inc. v. Humphries held that §1981 protects against

both

direct

racial

discrimination

and

retaliation based on complaints of discrimination.

Relying on Jackson v. Birmingham Board of

Education, 544 U.S. 167 (2005), the Court explicitly

rejected the notion that a cause of action for

discrimination materially differs from a cause of

action for retaliation. The Panel denying Dr. Moini's

(a pro se litigant) evidence of direct discrimination is

an error.

IX. REASONS FOR GRANTING THE WRIT

A. To avoid erroneous deprivations of the right

of a tenure-track faculty member who is denied

tenure because of his race, this Court should clarify

standards for what constitutes direct discrimination

and indirect discrimination under McDonaldDouglas analysis, including (1) whether “Middle

Eastern” is a race for a claim under 42 U.S.C. § 1981,

and if so, whether a reasonable jury could conclude

that appellant is a member of such a race; what

evidence is needed to establish a race; and whether a

plaintiff advancing a claim under § 1981 based on

alleged employment discrimination is required to

establish a breach of contract or whether

discrimination itself is a breach of contract. (2) At

higher education institutions where tenure decisions

are made at the University level, who is considered

proper comparators, and if being from a different

department or teaching different courses, excludes

other tenure-track faculty members as comparators.

(3) Are the University's published tenure and

promotion guidelines and procedures binding by the

parties? (4) Under section 1981, should one read the

discrimination broadly to include a retaliation

theory? In particular, because there is no separate

provision of section 1981 that prohibits retaliation,

where it is difficult for any litigant (mainly a pro se

plaintiff) to discern that theory, do they need to

plead retaliation in a separate count in the

complaint?

Not following the institution's own procedures

is strong evidence of indirect discrimination. This is

especially true in institutions of higher learning,

where a university has adopted rules or guidelines in

such areas. In this situation, the courts will only

intervene where there has not been substantial

compliance with those procedures. For example, in

Sackman u. Alfred University, 717 N.Y.S.2d 461

(2000), the court found that such a substantial

deviation in procedures had occurred that the

university was required to start its tenure process all

over again. The court stated that it "may not

substitute its judgment for the judgment and

discretion of Alfred University, but may determine

whether Alfred University's action in denying tenure

to Dr. Sackman violated the Handbook and was

arbitrary and capricious" Id. at 464. The handbook

required that the chairperson shall "through

classroom visitations" keep up-to-date on the

teaching of a tenure candidate. Yet the department

chair only visited Dr. Sackman's classroom one time,

and the P&T committee found the information on

teaching skills lacking.

In strikingly similar circumstances in Howard

Univ. 896, 913, 2012, it had stated,

Because Professor Roberts—Williams did not

receive a proper formal evaluation,... A

reasonable jury could conclude that [plaintiff]

would have approached her scholarly work

and her tenure application differently if she

had known that the [one] Project would be

considered insufficient. Id.

The D.C. circuit Arbitrary Defined the

Comparators’ Characteristics

The Supreme Court has stated that one

relevant example to proving that the employer's

stated reason is a pretext to see if the candidate was

treated

differently

from

similarly

qualified

candidates. One option for the comparative approach

is for a faculty member to claim that her or his

credentials are at least as good as those of the faculty

members who have already been promoted or

tenured. As stated, the Eleventh Circuit Court has

provided examples of similarities between a plaintiff

and a proffered comparator that would support a

valid comparison, Lewis v. Union City, Eleventh

Circuit Court, No. 15-11362 (2019). But still, the D.C.

circuit arbitrarily defined its qualifications. It

dismissed Dr. Moini's comparators because "the

proposed comparators differed in the timing of their

tenure decisions, the composition of their teaching

loads, and the discernable upward trajectory in their

student evaluations."

Indeed, Dr. Moini's comparators (Jones 2016

were tenured within a year of. Dr.

and

Moini (2017), had the same teaching loads (two

courses per semester), J.A.567, were under the same

University rule (Faculty Code 2015-teaching

excellence criterion), J.A.567, and the same decision

maker, Provost Maltzman. Appellant-final-replybrief, P27. Moreover, the lower court admitted that

"Jones’s student evaluations mirror[ed] Moini’s."

J.A.35. Moreover, for Dr. Moini, the court accepted

the University’s reason for his tenure denial (below average student teaching evaluations) but remained

silent on Jones's below average student evaluations.

(See "Jones received tenure in 2016 despite belowaverage student evaluations." Id..) Dr. Moini also

showed that the lower court miscalculated Dr.

Moini's averages and had averaged Moini's one

credit Graduate Seminar with his three credits

forensic classes giving them equal weight, but the

weighted averages for the first half and the second

half of Jones and Dr. Moini's probationary period

were, nearly identical. However, the D.C. circuit

ignored this miscalculation and repeated the district

court error that "the discernable upward trajectory

in their student evaluations" was a reason for

comparators not to be nearly identical. Judgment, P

5 . Therefore, the D.C. circuit evidence that Dr.

Moini's comparator had "the discernable upward

trajectory" is invalid. The Panel's unreliable evidence

contradicted the U.S. Supreme Court's ruling that

calls upon judges to assess the reliability and

validity of scientific evidence. See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The Supreme Court eschewed any notion that

comparators must be “identical” for the examples to

be probative of disparate treatment in a case

assessing

a Batson challenge

alleged

discriminatory jury selection at trial. Miller-El v.

Dretke, 545 U.S. 231,247 (2005). (“None of our cases

announces a rule that no comparison is probative

unless the situation of the individuals compared is

identical in all respects, and there is no reason to

accept one.” Id., at 247.

Dr. Moini was also more qualified than his

comparators because he was on fast-track and

received two merit raises of above 3%, which were

based on chair comments on his annual reports.

[J.A.459-461]. [J.A.459]. There is no evidence that

the comparators had these achievements. The

University admitted that

[J.A.725,

#23],

The Court simply did not view the evidence in

the light most favorable to Dr. Moini when analyzing

the Defendant’s summary judgment. Indeed, one

would struggle to find a single example in the D.C.

circuit judgment (or the district court Memorandum

of Opinion 2022) where the court resolved a disputed

fact or inference in Dr. Moini's favor. [J.A.13].

Plaintiffs can, for example, present evidence

that the defendant’s stated reasons for taking the

adverse action were false; the defendant acted

contrary to a written policy setting forth the action

the

defendant

should

have

taken

under

the circumstances, or the defendant acted contrary to

an unwritten policy or practice when making the

decision. (See Plotke v. White, 405 F.3d 1092, 1102

(2005). A plaintiff may also show pretext through

the “employer’s proffered nonthat

evidence

[were] either a.post

discriminatory reasons

hoc fabrication or otherwise did not actually

motivate the employment action ....” Fuentes v.

Perskie, 32 F.3d at 764 (1994). Therefore, the D.Q.

circuit, at the least, should have remanded Dr.

Moini's case to the district court for further

proceedings, which should include providing Dr.

Moini the opportunity to amend his complaint by

pleading a § 1981 retaliation claim. See Bolden v.

City of Topeka 441 F.3d at 1137 (2006), (remanding

so the plaintiff could seek leave to amend to cure his

complaint’s Jett violation).

This case presents this Court with an

opportunity to level the field by clarifying or

removing the "judicial deference" to academic

institutions of higher education. This is especially

important now that tenure in many institutions is no

longer permanent, and tenured faculty are required

to pass a performance filter every five years or

so. Absent intervention by this Court, the D.C.

circuit published decision will work to undermine the

carefully crafted procedural safeguards that this

Court has spent the past 50 years developing.

X. CONCLUSION

For the . preceding reasons, Dr. Moini

respectfully requests that this Court issue a writ of

certiorari to review the United States Court of

Appeals for the District of Columbia's judgment.

DATED this 25th day of October, 2024.

Respectfully submitted,

Mehdi Moini, Ph.D.

Petitioner

Pro se

Mehdi Moini, Ph.D.

732 Ridge Dr.

McLean, VA 22101

Moini.mehdi@gmail.com

Phone: (512) 736-8650

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.