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

I

No.

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

APPENDIX

Mehdi Moini, Ph.D.

732 Ridge Dr.

McLean, VA 22101

Moini.mehdi@gmail.com

(512) 736-8650

Pro se

APPENDIX TABLE OF CONTENTS

FEDERAL OPINIONS AND ORDERS

Judgment and Orders of the United States Court of

Appeals for the DC Circuit

Judgment of the United States

Court of Appeals for the DC Circuit

Affirming May 13, 2022 District

Court's Order (May 1, 2024).............

.A-2

Order of the United States Court of

Appeals for the DC Circuit Denying

Petition for Rehearing (June 12, 2024)...... A-15

Order of the United States Court of Appeals

for the DC Circuit Denying Petitions for

Rehearing En Banc (June 12, 2024)

A-16

Opinions and Orders of the United States District

Court for the District of Columbia

Opinion and Order of the United States

District Court for the District of Columbia

Denying in Part and Granting in Part

Defendant's Motion to Dismiss

(April 24, 2020)

A-18

Opinion and Order of the United

States District Court for the

District of Columbia Granting

Defendant's Summary Motion and

Denying Plaintiffs Cross Motion

(May 13, 2022)...................................

A-l

App-48

JUDGMENT OF THE UNITED STATES

COURTS OF APPEALS FOR THE DC CITCUIT

AFFIMING MAY 13, 2022 ORDER OF THE

DISTRICT COURT (May 1, 2024)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-7101 September Term, 2023

FILED ON: MAY I, 2024

MEHDI MOINI,

APPELLANT

v.

ELLEN M. GRANBERG, IN HER OFFICIAL

CAPACITY AS PRESIDENT, GEORGE

WASHINGTON UNIVERSITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. l:19-cv-03126)

Before: SRINIVASAN, Chief Judge, RAO and

PAN, Circuit Judges.

JUDGMENT

This case was considered on the record from

the United States District Court for the District of

Columbia and on the briefs and arguments of the

parties and court-appointed amicus. The Court has

accorded the issues full consideration and has

A-2

determined that they do not warrant a published

opinion. See D.C. Cir. R. 36(d). It is:

ORDERED that the order of the district

court, entered on May 13, 2022, is AFFIRMED.

ic Jc Je

Dr. Mehdi Moini, an Iranian chemist, was a

professor at George Washington University (“GW” or

“the University”) who was denied tenure. He sued

the University alleging racial discrimination and

breach of contract in his tenure process. The district

court granted the University’s motion for summary

judgment. On appeal, court-appointed amicus argues

for the first time that the University denied Dr.

Moini tenure in retaliation for a prior discrimination

lawsuit that he filed against a past employer. We

hold that the retaliation claim is forfeited because it

was not raised below and affirm the district court’s

grant of summary judgment on the discrimination

and contract claims.

I.

Dr. Moini began working at GW in January

2014.1 He was hired as a tenure-track associate

professor of forensic chemistry in the Department of

Forensic Sciences (the “Department”), within the

Columbian College of Arts and Sciences (“the

College”). GW put Dr. Moini on a “fast track” to

tenure due to his prior experience, which entitled

him to receive a tenure decision within three-and-ahalf years, rather than the usual seven. Dr. Moini

1 The named defendant is Ellen Granberg, the current

President of GW. Throughout the opinion, we refer to the

University as the defendant, as Dr. Moini alleged in his

complaint.

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previously had worked at the University of Texas at

Austin (“UT Austin”). When his contract with UT

Austin was not renewed in 2008, he sued that

university for national-origin, age, and race

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

2010 WL 11677609, at *2 (W.D. Tex. Oct. 7, 2010);

Moini v. Univ. of Tex. at Austin, 832 F. Supp. 2d 710,

714 (W.D. Tex. 2011).

In June 2015, GW amended its Faculty Code

to require tenure applicants to demonstrate

“excellence” in teaching. Previously, the Faculty

Code had required only “professional competence” in

teaching. Starting in the Fall 2015 semester,

students could evaluate teachers individually. Before

submitting his tenure application, Dr. Moini received

individual evaluations in four courses at GW. In

student evaluations for three out of those four

courses, his “overall rating of the instructor” fell

below the Department average.

Dr. Moini applied for tenure in September

2016. Due to concerns about his teaching record, the

Department initially was unwilling to vote in favor of

tenure and instead sought to secure an extension of

the tenure clock to give him more time to

demonstrate teaching excellence. After higher-level

University leaders denied that request, however, the

Department voted unanimously in favor of tenure.

The College’s tenure committee, the Dean of the

College, and the Provost all disagreed with the

Department’s recommendation, finding that Dr.

Moini’s application lacked evidence of teaching

excellence. The Faculty Senate Executive Committee

then found that there

were

“extenuating

circumstances” that made Dr. Moini’s teaching

environment difficult and recommended that Dr.

Moini’s tenure clock be extended by two years so that

A-4

he could improve his teaching. But then-GW

President Steven Knapp disagreed. He stated that

Dr. Moini had spent two decades teaching at

institutions in Texas, and he therefore had ample

time “to develop his teaching skills in advance of

arriving at GW.” J.A. 473. After President Knapp’s

determination, Provost Forrest Maltzman informed

Dr. Moini that he would be denied tenure.

Dr. Moini then embarked on an extensive

internal grievance process at GW. His efforts

ultimately were unsuccessful. Although an Appeals

Panel found that it was arbitrary to deny Dr. Moini

tenure “based solely on student evaluations of a onecredit hour required seminar course,” the Panel’s

determination was overruled by Provost Maltzman.

J.A. 626-27. Provost Maltzman found compelling

reasons to non-concur with the Appeals Panel

decision, again citing the excellence-in-teaching

standard. The Executive Committee of the Board of

Trustees voted to uphold the university’s decision

against tenure, conclusively resolving the issue

against Dr. Moini. Dr. Moini’s employment with GW

ended in September 2018.

Dr. Moini filed his pro se complaint in the

district court in October 2019. In April 2020, the

district court dismissed Dr. Moini’s Title VII and

D.C. Human Rights Act claims as time-barred. After

discovery, both parties cross-moved for summary

judgment on the remaining claims. The district court

granted the University’s motion for summary

judgment and denied Dr. Moini’s cross-motion. Dr.

Moini appealed. We appointed amicus to submit

briefing in support of Dr. Moini’s position on certain

issues.2

2 We directed the amicus and the parties to brief:

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II.

We review the district court’s grant of

summary judgment de novo. Wheeler v. Georgetown

Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). To

prevail on a motion for summary judgment, a party

must show that “there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“Summary judgment is appropriately granted when,

viewing the evidence in the light most favorable to

the non-movants and drawing all reasonable

inferences accordingly, no reasonable jury could

reach a verdict in their favor.” Lopez v. Council on

Am.-Islamic Reis. Action Network, Inc., 826 F.3d 492,

496 (D.C. Cir. 2016). While we generally construe pro

se plaintiffs’ pleadings more liberally, pro se

plaintiffs are held to the same evidentiary burdens

as those represented by counsel at summary

judgment. See Oviedo v. Wash. Metro. Area Transit

Auth., 948 F.3d 386, 397 (D.C. Cir. 2020) (“While we

liberally construe pro se pleadings, pro se litigants do

not have a license to ignore the Federal Rules of Civil

Procedure.” (cleaned up)); see also Prunte v.

Universal Music Grp., 699 F. Supp. 2d 15, 21—22

(D.D.C. 2010) (quoting Laningham v. U.S. Navy, 813

(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.

Per Curiam Order Appointing Amicus, No. 22-7101 (May 8,

2023). We do not decide those questions in our disposition of

this case.

A-6

/

F.2d 1236, 1242 (D.C. Cir. 1987)), aff’d, 425 F. App’x

1 (D.C. Cir. 2011).

III.

On appeal, Dr. Moini and court-appointed

amicus collectively present three types of claims: a §

1981 discrimination claim, a § 1981 retaliation

claim, and contract claims rooted in District of

Columbia law. The record shows no dispute of

material fact as to the first and thirdof those claims

and the retaliation claim is forfeited. Accordingly, we

affirm the district court’s grant of summary

judgment.

A.

Under 42 U.S.C. § 1981, a plaintiff may bring

suit when their right to make and enforce contracts

is impaired by racial discrimination. Dr. Moini

brought a § 1981 claim for disparate treatment,

which requires him to identify evidence that the

University intentionally discriminated against him

on the basis of race. See Ayissi-Etoh v. Fannie Mae,

712 F.3d 572, 576 n.l (D.C. Cir. 2013) (per curiam).

A

plaintiff

can

intentional

prove

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.

A-7

Absent direct evidence, we assess indirect

evidence of racial discrimination under the

McDonnell Douglas burden-shifting framework. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802—05 (1973); see also Brown v. Sessoms, 774 F.3d

1016, 1022 (D.C. Cir. 2014) (explaining that

McDonnell Douglas applies to § 1981 claims). When

an employer offers a legitimate, nondiscriminatory

reason for an allegedly discriminatory employment

action, we “need not — and should not —decide

whether the plaintiff actually made out a prima facie

case” of discrimination. Brady v. Off. of Sergeant at

Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis

omitted). Instead, our task is to “resolve one central

question: Has the employee produced sufficient

evidence for a reasonable jury to find that the

employer’s asserted non-discriminatory reason was

not the actual reason and that the employer

intentionally discriminated against the employee on

the basis of race . . . ?” Id.

Here, the University provided a legitimate,

nondiscriminatory reason for denying Dr. Moini

tenure: his failure to demonstrate teaching

excellence. During Dr. Moini’s tenure process,

multiple reviewers cited his below-average teachingevaluation scores and his students’ negative

comments about him as the reason for denying

tenure. The Chair of the College’s tenure committee

noted that Dr. Moini’s “teaching record falls well

below [w]hat we would expect from our tenured

colleagues.” J.A. 425. Dean Ben Vinson noted that

student comments “complained of overwhelming

material, lack of organization, poor pace, and quizzes

that seemed more like tests.” Id. at 428. In short,

GW provided sufficient evidence to establish that

there is no genuine dispute about whether Dr. Moini

A-8

was denied tenure because he did not meet the

University’s teaching standards.

Dr. Moini attempts to show that GW’s cited

rationale was pretextual based on asserted

deviations from the University’s established

procedures for evaluating tenure applications. But

none of the alleged irregularities supports an

inference of racial discrimination. See Fischbach u.

D.C. Dept of Corr., 86 F.3d 1180, 1183 (D.C. Cir.

1996) (“An employer’s failure to follow its own

regulations and procedures, alone, may not be

sufficient to support the conclusion that its

explanation for the challenged employment action is

pretextual.” (internal quotations omitted)).

First, Dr. Moini argues that the Department

Chair, Dr. Rowe, deviated from established

procedures for assigning courses and for readying a

candidate to apply for tenure. Dr. Moini contends

that Dr. Rowe set him up to fail by assigning him to

teach a graduate seminar course with a history of

low student evaluations. He also emphasizes that

Dr. Rowe failed to provide him with a mid-tenure

review and never informed him about the concerns

with his teaching. Dr. Moini’s accusations against

Dr. Rowe are unpersuasive. Dr. Rowe strongly

supported Dr. Moini’s tenure application, urging the

Faculty Senate to look past Dr. Moini’s negative

reviews and vouching that his teaching was “clear

and concise.” J.A. 442. The evidence therefore does

not support an inference that Dr. Rowe harbored

racial animus against Dr. Moini or sought to

sabotage his application for tenure. Moreover, Dr.

Moini has not shown that the University’s

consideration of student evaluations was a deviation

from its usual practice when making tenure

decisions. See J.A. 272 (“Evidence of effective

A-9

teaching . . . shall include . . . written evaluation^]

by students.”)- Finally, 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 that such reviews were

not necessary for fast-track faculty. Dr. Moini has

made no allegations of racial discrimination against

Dr. Weedn or Dean Arnesen.

Second, Dr. Moini alleges that non-Middle

Eastern professors were treated differently in the

tenure process, citing three professors from other

departments who received tenure despite receiving

teaching evaluations below their departmental

averages. To establish that another employee is an

appropriate comparator, “[a] plaintiff must . . .

demonstrate that all of the relevant aspects of his

employment situation were nearly identical to those

of the other employee.” Burley v. Nat’l Passenger

Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)

(cleaned up). As the district court observed, 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.3

B.

3 Dr. Moini argues that Dr. Rowe is another relevant

comparator because he co-taught the Graduate Seminar and

also received poor student evaluations. Despite these

evaluations, Dr. Rowe was promoted to Department Chair. Dr.

Rowe is an inappropriate comparator, however, because the

criteria for selection of a Department Chair are fundamentally

different from those for granting tenure. The role of the Chair is

administrative in nature.

A-10

Section 1981’s implied cause of action also

encompasses retaliation claims. CBOCS W., Inc. u.

Humphries, 553 U.S. 442, 446 (2008). But Dr. Moini

has forfeited any § 1981 retaliation claim he may

have had by failing to raise it in his complaint. See

Kingman Park Civic Ass’n v. Williams, 348 F.3d

1033, 1039 (D.C. Cir. 2003) (declining to address the

merits of an argument “raised for the first time on

appeal”). In the complaint, Dr. Moini does not

mention that he previously sued UT Austin for racial

discrimination, much less argue that he was denied

tenure at GW because of it. While we construe a pro

se plaintiffs pleading more leniently than one

drafted by lawyers, we cannot supply a cause of

action that the plaintiff did not plead. Bowman v.

Iddon, 848 F.3d 1034, 1040 (D.C. Cir. 2017) (“Even

construing the complaint liberally, as we must, it

contains nothing resembling the claim amicus

asserts.”).

Amicus argues 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). But that single word is

insufficient to plead a retaliation claim based on Dr.

Moini’s suit against UT Austin. The complaint, read

as a whole, is clear: Dr. Moini sued GW for race

discrimination, not retaliation due to a past lawsuit.

Amicus also argues that Dr. Moini made a

retaliation claim in his summary-judgment briefing.

While it is true that Dr. Moini referenced events

related to his UT Austin lawsuit in his Statement of

Undisputed Facts, the district court was not required

to infer new legal claims from such factual

references. See Twist v. Meese, 854 F.2d 1421, 1425

(D.C. Cir. 1988).

A-ll

c.

Finally, Dr. Moini’s contract claims lack merit.

Breach of contract claims are assessed under D.C.

law and require: “(1) a valid contract . . . ; (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). Dr. Moini presents six contractbased arguments on appeal — but none of them

adequately raise a factual dispute about a breach of

contract by the University.

First, Dr. Moini’s claim about mid-tenure

review is time-barred. A breach of contract action

must be brought within three years of the time of

breach. Mawakana v. Bd. of Trustees of the Univ. of

D.C., 926 F.3d 859, 868 (D.C. Cir. 2019). The

College’s procedures state that the review should

occur “at the approximate mid-point of the period

leading to [the] tenure review and decision.” J.A.

155. The approximate mid-point of Dr. Moini’s

tenure track was around October 2015, more than

three years prior to the filing of the complaint in

October 2019. Mawakana, 926 F.3d at 868.

Next, Dr. Moini’s contract claims based on Dr.

Rowe’s selection as Department Chair were not

raised before the district court and are now forfeited.

See Kingman Park Civic Ass’n, 348 F.3d at 1039.

Although Dr. Moini discussed Dr. Rowe’s selection as

Department Chair as a comparator for his racialdiscrimination claim, he did not allege that Dr.

Rowe’s selection as Department Chair constituted a

breach of the Department Constitution.

The remainder of Dr. Moini’s claims also are

unavailing. Dr. Moini fails to create a genuine

A-12

dispute about whether Dr. Rowe had any contractual

obligation to inform him of the Department’s initial

negative tenure vote in December 2016. That vote

was superseded by the Department’s unanimous vote

in favor of his tenure. Dr. Moini also fails to create a

genuine dispute about whether Provost Maltzman

did not appropriately apply the “compelling reasons”

standard when non-concurring with the Department

or the Appeals Panel’s decisions. In fact, Provost

Maltzman specifically explained that the “compelling

reasons” to deny tenure related to Dr. Moini’s failure

to demonstrate teaching excellence. J.A. 440, 628.

Dr. Moini also alleges that Vice Provost Christopher

Bracey and the Hearing Panel members engaged in

inappropriate exparte communications during the

grievance process, but the referenced emails only

discussed the privacy interests of academic

reviewers. Those exchanges did not relate to the

substance of the tenure review and did not violate

the Faculty Code. J.A. 316 (“Members of the Hearing

Committee . . . shall avoid ex parte communications

bearing on the substance of the dispute.”). Finally,

Dr. Moini has failed to provide any evidence

demonstrating

that

members

of the

GW

administration colluded or conspired against him in

their decision to deny tenure.

IV.

There is no genuine dispute of material fact

about Dr. Moini’s § 1981 discrimination claim or his

contract claims. We therefore affirm the district

court’s order granting summary judgment to the

University.

ic ic ic

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Pursuant to D.C. Circuit Rule 36, this

disposition will not be published. The Clerk is

directed to withhold issuance of the mandate until

seven days after resolution of any timely petition for

rehearing or rehearing en banc. See Fed. R. App. P.

41(b); D.C. Cir. R. 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

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ORDER OF THE UNITED STATES COURTS OF

APPEALS FOR THE DC CITCUIT DENYING

PETITIONER'S PETITION FOR PANEL

REHEARING

(JUNE 12, 2024)

UNITED STATES COURTS OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-7101

September Term,

2023

l:19-cv-03126-TNM

Filed On: June 12, 2024

Mehdi Moini,

Appellant

v.

Ellen M. Granberg, In her Official Capacity as

President, George Washington University,

Appellee.

PER CURIAM ORDER [2059321] filed

denying petitioner's sealed petition for panel

rehearing. [2057308-2]. BEFORE: Srinivasan, Chief

Judge; Rao and Pan, Circuit Judges. [22-7101]

A-15

ORDER OF THE UNITED STATES COURTS OF

APPEALS FOR THE DC CITCUIT DENYING

PETITIONER’S PETITION FOR REHEARING

EN BANC

(JUNE 12, 2024)

UNITED STATES COURTS OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term,

No. 22-7101

2023

l:19-cv-03126-TNM

Filed On: June 12, 2024

Mehdi Moini,

Appellant

v.

Ellen M. Granberg, In her Official Capacity as

President, George Washington University,

Appellee.

BEFORE: Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas*, Rao, Walker*,

Childs, Pan, and Garcia, Circuit Judges.

ORDER

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Upon consideration of petitioner’s sealed

petition for rehearing en banc, and the absence of a

request by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer,

Clerk

BY: /si

Daniel J. Reidy

Deputy Clerk

* Circuit Judges Katsas and Walker did not

participate in this matter.

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Opinion and Order of the United States

District Court for the District of Columbia

Denying in Part and Granting in Part

Defendant's Motion to Dismiss (April 24, 2020)

United States District Court, District of Columbia

MEHDI MOINI

Plaintiff,

v.

THOMAS J. LEBLANC, in his official capacity as

President, George Washington University,

Defendant.

l:19-cv-03126 (TNM)

04-24-2020

MEMORANDUM OPINION AND ORDER

George

Washington

University

(the

"University") denied tenure to Mehdi Moini, Ph.D.

Moini, proceeding pro se, alleges that this decision

violated Title VII of the Civil Rights Act of 1964

("Title VH"), the D.C. Human Rights Act ("DCHRA"),

and 42 D.S.C. § 1981. He also claims that the

University breached its contractual obligations.

University President Thomas J. LeBlanc ("the

President") moves to dismiss the Complaint. The

Court finds that Moini's claims under Title VII and

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the DCHRA are time-barred, so it willdismiss them.

But the Court will not dismiss his other claims.

Given the liberal pleading standards for pro se

plaintiffs, Moini -has alleged enough facts at this

stage to proceed with his § 1981 claim and his

contract claims. The Court will thus grant in part

and deny in part the President's motion to dismiss.

I.

Moini describes himself as "a Middle Eastern

(Iranian)" individual. Compl. ^ 5, ECF No.l. He

holds a doctorate in chemistry from Michigan State

University. Id. f 24. From 1987 to 2014, he held

several academic and research positions, including at

the Smithsonian Institution. Id.; Compl. Exs. at

282,4 ECF No. 1-5. He joined the faculty of George

Washington University in 2014 as a tenure-track

associate professor in the Department of Forensic

Sciences. Compl. Tf 25. The appointment was for a

period of three and a half years, so he would receive

a tenure decision no later than June 2017. Id.

In accepting the position, Moini agreed to "the

conditions stated in the Faculty Code and Faculty

Handbook." Id. , f 12. The Code contains the criteria

for tenure. Id. ^ 13. As of 2015, it provided that

"tenure is reserved for members of the faculty who

demonstrate excellence in scholarship, teaching, and

engagement in service and who show promise of

continued excellence." Id. The lynchpin of this case is

the "excellence in teaching" criterion.

4 All page citations refer to the page numbers that the CMIECF

system generates.

A-19

Moini alleges that he built a strong record in

all areas-scholarship, teaching, and service. Id. If

28-30. For example, he published nine peer-reviewed

papers, collaborated with federal agencies, and gave

presentations at local schools. Id. ff 28-29. And

many colleagues and students have praised his

teaching. Id. f 30. But he acknowledges that student

evaluations from a graduate seminar he taught were

"relatively poor" and "below departmental averages."

Id. HI 2, 31.

This seminar is mandatory for graduate

students, and Moini describes it as "quite

demanding." Id. ft 2, 10. For a time, he co-taught

the course with a colleague, Professor Rowe, who

"received similar negative student evaluations." Id. f

31. Soon after Rowe stepped down as a co-instructor,

he received a promotion to Department Chair. Id. f f

26,33.

Moini submitted his tenure application in

September 2016, which triggered a multi-step review

process. Id. f f 17, 32. First, a committee^of tenured

faculty in the Department of Forensic Sciences

"unanimously" recommended tenure. Id. f 35. This

recommendation went to the Personnel Committee

for the University's College of Arts and Sciences. Id.

f 36. The Personnel Committee was to provide its

"independent concurrence or nonconcurrence" with

the Department's recommendation and to identify

any "compelling reasons" for nonconcurrence. Compl.

Exs. at 29. It voted five to two against tenure, with

two abstentions. Compl. f 37. According to Moini,

the Committee focused on the negative student

evaluations from his graduate seminar. Id.

The next stop was the Dean of the College of

Arts and Sciences. Id. Like the Personnel

Committee, he disagreed with the Department's

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recommendation of tenure. Id. The Dean allegedly

cited "a disaffected student's unhappy reaction to the

[graduate seminar] as the deciding piece of evidence

that Moini lacks excellence as a teacher." Id.

(quoting Compl, Exs. At 9).

The Provost also disagreed with the

Department's recommendation of tenure. Id. He

concluded that Moini had "not yet achieved the

teaching standard commensurate with a ... grant of

tenure." Id. ~ 38. (quoting Compl, Exs. at 3).

Since the Provost did not concur with the

Department's recommendation, he referred the

matter to the Executive Committee of the Faculty

Senate. Id.; Compl. Exs. at 39. This body voted

against tenure, too. Cornpl. f 39. Finally, the

University President reviewed Moini's case for a

"final decision." Id. Tf 37; Compl. Exs. at 39-40. He

decided against tenure. Compl. ^ 37.

So, after six of levels of review, one body-the

Departmental Committee-recommended tenure. The

subsequent five reviewers-the College's Personnel

Committee, the Dean, the Provost, the Executive

Committee of the Faculty Senate, and the President did not. The Provost informed Moini by letter dated

June 22, 2017, that "the decision ha[d] been made

not to extend tenure" to him. Compl. Exs. at 5. The

letter also stated that Moini's appointment for the

2017-2018 academic year would be "a terminal one."

Id.

Moini soon began a grievance process. Compl.

1 41. He first sought an informal resolution. Id.;

Compl. Exs. at 44. The University offered to extend

Moini's appointment by one semester, but Moini

rejected this and brought a formal grievance. Compl.

141.

A-21

He made two allegations. First, he claimed

that the University had violated the Faculty Code

because it did not give him "sufficient notice" that his

student evaluations were poor enough to put his

tenure at risk. Id. Second, he complained that the

denial of tenure was "arbitrary and capricious"

because it was "primarily based oil student

evaluations of a one-credit graduate seminar' course,

ignoring all other teaching metrics." Id. If 43.

A three-member Hearing Panel reviewed

Moini's grievance and upheld the denial of tenure by

a split vote. Id. If 44. For the panel majority, while

there was "no serious challenge to his record of

research and scholarship," his teaching was "short of

excellent." Compl. Exs. at 6. Based "primarily" on the

student evaluations from Moini's graduate seminar,

the Panel concluded that he had "not demonstrated a

readiness to adapt his teaching to the students he

actually has." Id. The dissenting member criticized

the heavy reliance on the student evaluations. Id. at

7-9. He cited the College's own memorandum of

guidance stating that "[s]tudent evaluations ... are

an imperfect tool for measuring teaching evidence

and quality."

Id. at7.

An Appeals Panel unanimously reversed the

Hearing Panel's decision, finding it "seriously

erroneous." Compl. f 46; Compl. Exs. at 53. In its

view, the denial of tenure was "arbitrary and

capricious" because it was "based solely on student

evaluations of a one-credit hour required seminar

course, with no other supporting documentation."

Compl, Exs. at 54. The record, it noted, included

"letters from Dr. Moini' s graduate students who

secured good jobs upon graduation, praising Dr.

Moini, along with acceptable student evaluations

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from [his] other courses, and favorable peer reviews

of his teaching." Id. So the Appeals Panel

recommended granting him tenure. Id. at 53.

But that was not the end. The Provost has

authority to reject the recommendation of the

Appeals Panel, and he did so here. Compl. ~ 49.

Among the "compelling reasons" for doing so was the

Code's "excellence in teaching" standard, which, in

his view, the Appeals Panel had not applied

correctly. Compl. Exs. at 687-91.

The Provost then forwarded Moini's grievance

to the University's Board of Trustees for the final

say. Compl. If 53. The Board "voted to uphold the

university's decision against tenure." Compl. Exs. at

760. The University informed Moini of the Board's

decision on September 19, 2018. Id.

The next year, on April 14, Moini sent an

"initial inquiry" to the Equal Employment

Opportunity Commission ("EEOC"). Id. at 763. He

then filed a formal Charge of Discrimination on July

12. Def.'s Mem. in Supp. of Mot. to Dismiss at 50

("Def.'s Mem."), ECF No. 6-1. He alleged that the

University had discriminated against him based on

"national origin." Id. at 51. The EEOC soon mailed

him a Notice of Right to Sue, Compl. Exs. at 772,

which he received on July 19, Compl. 1 55.

Within three months, Moini sued. He claims

violations of Title VII and the DCHRA (Count I), as

well as 42 U.S.C. § 1981 (Count III). Id.

84, 88.

He also alleges that the University "breached its

contractual obligations" by denying him tenure

"without providing him notice of putative concerns

regarding his teaching." Id. Tf 86 (Count II). For the

same reason, he asserts that the University

"breached the implied covenant of good faith and fair

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dealing" (Count IV). Id. 90.5 He seeks reinstatement,

tenure, back pay, and damages. Id. at 42-43.

II.

The President moves to dismiss the Complaint

under Federal Rule of Civil Procedure 12(b)(6).

Def.?s Mot. to Dismiss at I, ECF No.6. To survive

this motion, a complaint must "state a claim to relief

that is plausible on its face." Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). The plaintiff must plead

"factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged." Id.

In assessing plausibility, the Court may

consider only "the facts alleged in the complaint, any

documents either attached to or incorporated in the

complaint and matters of which [it] may take judicial

notice." Hurdv. District of Columbia, 864 F.3d 671,

678 (D.C. Cir. 2017). And it must generally "accept

as true all of the complaint's factual allegations and

draw all reasonable inferences in favor of the

plaintiff]']." Owens v. ENP Paribas, SA., 897 F.3d

266, 272 (D.C. Cir. 2018). But the Court need not

accept a complaint's factual allegations "insofar as

they contradict exhibits to the complaint." Id. at 27273. Nor need it credit legal conclusions couched as

factual allegations. Id. at 272.

The Court is mindful that Moini is proceeding

without counsel. "A document filed pro se is to be

liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent

5 The Court has federal-question jurisdiction over Moini's

claims under Title VII and 42 U.S.C. § 1981. 28 U.S.C. § 1331. It

has supplementaljurisdiction over his DCHRA claim and his

contract claims. Id. § 1367(a).

A-24

standards than formal pleadings drafted by

lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(cleaned up). More, the Court must assess a pro se

complaint "in light of all filings, including filings

responsive to a motion to dismiss." Brown v. Whole

Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.

2015) (cleaned up).

III.

A.

The President contends that Moini's claims

under Title VII and the DCHRA (Count I) are

untimely. Dismissal on this basis is appropriate

when a claim is "conclusively time-barred" on the

face of the Complaint. Firestone v. Firestone, 76 F.3d

1205, 1209 (D.C. Cir. 1996). That is the case here.

Indeed, the timing issue largely comes down to the

proper application of a Supreme Court decision.

Start with Title VII. To sue under this statute,

an individual must first file a charge with the EEOC

"within [180] days after the alleged unlawful

employment practice occurred." 42 U.S.C. § 2000e5(e)(1). This limitations period extends to 300 days if

the individual "has initially instituted proceedings

with a State or local agency." Id.

The first question-which turns out to be

dispositive here-is when "the alleged unlawful

employment practice occurred." The President

argues that it occurred on June 22, 2017, when the

Provost informed Moini of the decision to deny him

tenure and that his appointment for the 2017-2018

academic year would be terminal. Def.' s Mem. at 28.

Moini points instead to September 19, 2018, when

the Board of Trustees made a final decision on his

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grievance. PL's Opp'n at 27, ECF No.8. Under

Delaware State College v. Ricks, 449 U.S. 250 (1980),

he is mistaken.

Ricks bears striking similarities to Moini's

case. Just consider the question presented: "whether

respondent, a college professor, timely complained

under the civil rights laws that he had been denied

academic tenure because of his national origin." Id.

at 252. The Tenure Committee at Delaware State

College twice voted to deny tenure. Id. The Faculty

Senate upheld the decision. Id. And in March 1974,

the College's Board of Trustees "formally voted to

deny tenure." Id.

Unhappy with this decision, Ricks filed a

grievance with the Board's Educational Policy

Committee. Id. Meanwhile, the Board informed him

on ]une 26, 1974, that "he would be offered a I-year

'terminal' contract that would expire June 30, 1975."

Id. at 252-53. It referenced the pending grievance,

explaining that if the Educational Policy Committee

recommended granting tenure-and if the Board

agreed with the recommendation-then Ricks would

get tenure after all. Id. at 253 n.2. But three months

later, the Board notified Ricks that "it had denied his

grievance." Id. at 254. Ricks filed a charge with the

EEOC in April 1975. Id. He then sued, bringing a

Title VII claim. Id. Ruling on a motion to dismiss,

the district court held that this claim was untimely.

Id. at 254-55. The limitations period began to run on

June 26, 1974, and Ricks had filed his EEOC charge

more than 300 days after that date. Id. at 255,260

n.13.

The Supreme Court agreed, reversing the

Third Circuit's contrary ruling. Id. at 256. The first

task was to identify "the alleged unlawful

employment practice." Id. at 257. It concluded that

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Ricks alleged unlawful denial of tenure, not unlawful

termination of employment. Id. At 257-58; see also id.

at 262-63 (Stewart, L, dissenting) (agreeing with the

majority "that the unlawful employment practice

alleged in the ... complaint was a discriminatory

denial of tenure, not a discriminatory termination of

employment").

To plead the latter, Ricks would have needed

to allege that the College terminated him in

a discriminatory manner relative to other professors

who had been denied tenure. Id. at 258 (majority

opinion). But he did not. Id. Indeed, Ricks's

termination was

simply an "inevitable

consequence of the denial of tenure." Id. at 257-58.

So Title VII's clock began not when this consequence

came to pass, but "at the time the tenure decision

was made and communicated to Ricks." Id. at 258.

The next task was to identify this date. Id. at

259. It came down to two candidates. One option was

September 12, 1974, when "the Board notified Ricks

that his grievance had been denied." Id. at 260. The

other option was June 26, 1974, when "the Board

notified Ricks that he would be offered a 'terminal'

contract for the 1974-1975 school year." Id. at 26162.6 The Court rejected the September 12 date for

6 The Board informed Ricks of the decision to deny tenure

earlier than June 26. 449 U.S. at 252. June 26 was when it

offered him a "terminal" contract. Id. at 253. The Court did not

have to consider the pre-June 26 date since even June 26 was

more than 300 days before Ricks filed his EEOC charge. Id. at

260 n.13, 262 n.17. Here, the University informed Moini on the

same day that (1) it had denied him tenure and (2) his

appointment for the upcoming academic year would be

"terminal." Compl. Exs. at 5. That day was June 22, 2017. Id.

So this June 22 date is equivalent to the June 26, 1974, date in

Ricks.

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the June 26 date. In support of the September 12

date, the EEOC, as amicus, offered two arguments.

Id. At 260. First, it urged that the decision to deny

tenure "was only an expression of intent that did not

become final until the grievance was denied." Id.

Indeed, the June 26 letter "explicitly held out" the

possibility that Ricks "would receive tenure if the

Board sustained his grievance." Id. The Court

acknowledged this. Id. at 261. But it still found that

"[e]ntertaining a grievance complaining of the tenure

decision does not suggest that the earlier decision

was in any respect tentative." Id. More, "[t]he

grievance procedure, by its nature, is a remedy for a

prior decision, not an opportunity to influence that

decision before it is made." Id.

The EEOC also maintained that "the

pendency of the grievance period should toll the

running of the limitations periodQ." Id. But this

argument failed too. It was settled that "the

pendency of a grievance, or some other method of

collateral review of an employment decision, does not

toll the running of the limitations periodQ." Id.

So for these reasons, September 12-the day

that Ricks received a final decision on his grievancewas not when Title VII's limitations period began to

run.

Turning to the June 26 date, the Court

observed that by then, "the tenure committee had

twice recommended that Ricks not receive tenure;

the Faculty Senate had voted to support the tenure

committee's recommendation; and the Board of

Trustees formally had voted to deny Ricks tenure."

Id. at 262. "In light of this unbroken array of

negative decisions," the district court "was justified

in concluding that the College had established its

official position-and made that position apparent to

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Ricks-no later than June 26, 1974." Id. His EEOC

charge was thus untimely, since he filed it more than

300 days after June 26. Id. at 260 n.13.

Ricks governs here. The only unlawful

employment practice that Moini alleges is the denial

of tenure. Compl. f 1; see PI.'s Opp'n at 40. He does

not allege unlawful termination of employment, since

he does not claim that the University terminated

him in a discriminatory manner relative to other

professors who had been denied tenure. See PI.'s

Opp'n at 16,26-27; Ricks, 449 U.S. at 258. So Title

VII's clock began to run "at the time the tenure

decision was made and communicated to [Moini]."

Ricks, 449 U.S. at 258.

That occurred on June 22, 2017, when the

Provost notified Moini that "the decision has been

made not to extend tenure" and that his appointment

for the 2017-2018 academic year would be

"terminal." Compl. Exs. at 5; see Ricks, 449 U.S. at

261-62 & n.17. By June 22, five reviewers had

decided against tenure, including the University

President, whose decision on the matter is "final,"

per the Faculty Code. Compl. Exs. at 40. So the

University had established its "official position" by

this date. 449 U.S. at 262; see supra note 3 (noting

the equivalency between the June 22,2017, date in

Moini's case and the June 26, 1974, date in Ricks).

This is so even though Moini filed a grievance

challenging the tenure decision. See Ricks, 449 U.S.

at 260-61. The existence of a grievance process did

not make the tenure decision "tentative." Id. at 261.

And "the pendency of a grievance ... does not toll the

running of the limitations period

Id. So the

conclusion of the grievance process was not "when

the tenure decision was made." Id. at 259,261.

A-29

Yet Moini insists that the relevant date is

September 19,2018, when he received a final decision

from the Board of Trustees on his grievance. His

arguments are unpersuasive.

For one, he suggests that under the Faculty

Code, a decision on tenure does not become "final"

until the end of the grievance process. See Pl.'s Opp'n

at 27; Pl.'s Proposed Sur-Reply at 3-4.7 This

argument, which conflates the tenure review process

and the grievance process, fails for two reasons.

First, it contradicts the Faculty .Code, which

he attached as an exhibit to his Complaint. The

Court need not accept a plaintiffs factual allegations

"insofar as they contradict exhibits to the complaint."

Owens, 897 F.3d at 272-73. The Faculty Code cleanly

distinguishes between the tenure review process and

the grievance process. See Compl. Exs. at 28-30, 36.

In the former, the Provost's decision is normally

"final," with exceptions. Id. at 39. One exception is

7 Moini has moved for leave to file this sur-reply. Pl.'s Mot. for

Leave to File at 1, ECF No. 10. The President opposes this

motion, arguing that his reply brief introduced no new

arguments. Def.'s Opp'n to Mot. for Leave at 1, ECF No. 12; see

Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003)

(noting that sur-rephes are appropriate when a reply brief

presents new arguments). The Court agrees with the President

here and thus denies the motion. Moini cites no new argument

that the President makes in his reply brief, and none is

apparent. Moini instead asserts that the reply brief contains

factual inaccuracies. Pl.'s Mot. for Leave to File at 1. But in any

event, the proposed sur-reply would not affect how the Court

resolves the President's motion to dismiss. In this Section, the

Court rejects the arguments that Moini makes in his proposed

surreply on the timeliness of his Title VII and DCHRA claims.

(These arguments are intertwined with the ones he raises in his

opposition brief.) And nothing in the proposed sur-reply affects

the Court's decision to allow Moini's other claims to proceed.

See infra Sections III.B & 1II.C.

A-30

when, as here, the College's Personnel Committee,

the College's Dean, and the Provost all disagree with

the Department's recommendation. Id. When this

happens, the tenure application goes to the Faculty

Senate and then the President, who makes "a final

decision." Id. at 39-40. If the President "approve [s]

tenure," then the decision is "transmitted to the

Board of Trustees, which has the authority to confer

tenure." Id. at 40. Thus, since the President did not

approve Moini's tenure, the Board was not involved

in the tenure review process, and the President's

adverse decision was "final." See Compl.

37-40;

Compl. Exs. at 40.8

So under the Faculty Code, the grievance

process is simply a way to mount a collateral attack

on the President's final decision-it does not make

that decision any less final. See Compl. Exs. at 2830,36; Ricks, 449 U.S. at 261. Moini focuses on a

paragraph in the Code's grievance section that

speaks of a "Final Disposition." PI. 's Proposed SurReply at 4. But this paragraph is about the final

decision in the grievance process, not the tenure

review process. See Compl, Exs. at 49. With any

grievance process, just as with any tenure review

process, there will be a "final" decision. That mere

fact, however, does not make the final decision in the

grievance process the proper focal point. See Ricks,

449 U.S. at 260-61.

This leads to the second independent reason

Moini's argument here falls short: under Ricks, it

fails as a matter of law. In suggesting that a decision

in the tenure review process does not become "final"

8 For this reason, Moini is wrong when he suggests that the

Board of Trustees always makes the final decision in the tenure

review process. See Pl.'s Opp'n at 27; Pl.'s Proposed Sur-Reply

at 3.

A-31

until the end of the grievance process, he asks the

Court to focus on the final decision in the grievance

process. But Ricks was categorical that the final

decision in the grievance process is not the proper

focal point. A grievance procedure, "by its nature, is a

remedy for a prior decision, not an opportunity to

influence that decision before it is made." Id. at 261

(first emphasis added); see also id. at 261 n.15 ("Mere

requests to reconsider ... cannot extend the

limitations periods applicable to the civil rights

laws."). Moini points to no material differences

between the grievance process here and the one at

issue in Ricks, nor are any apparent. See Pl.'s Opp'n

at 27; Pi's Proposed Sur-Reply at 3-4. Nor does he

claim that the process he went through was not a

"grievance process"-he uses that precise term.

Compl, | 41. Thus, since Ricks-at the motion to

dismiss stage-rejected the grievance process as the

proper focal point, see 449 U.S. at 254, 260-61, the

Court will do the same here."9

Moini also contends that the Court should use

"accepted"

September 19 because the EEOC

that date. Pl.'s Opp'n at 27. This argument runs

headlong into Ricks. If the question was what date

9 Relatedly, Moini at times suggests that the Court should use

the September 19 date simply because that is when the Board

of Trustees provided its decision. See Pl.'s Opp'n at 27 ("[T]he

Supreme Court ruled the date the Delaware State College

Board of Trustees made its final decision to be the final day of

employment for Ricks. September 19, 2018 was when Moini

received the University's Board of Trustees final decision."). But

this gets Ricks backwards. Its, selection of the June 26 date

turned not on the identity of the decisionmaker, but on the

nature of the decision. See 449 U.S. at 260-62. Here, the Board

of Trustees gave Moini a final decision on his grievance, but

that decision is the wrong focal point. See Compl. Iff 37-41,53;

Compl. Exs. at 760; supra note 5; Ricks, 449 U.S. at 260-61.

A-32

the EEOC had "accepted," the Court would not have

engaged in any analysis of "when the tenure decision

was made and Ricks was notified." 449 U.S. at 259.

It would have just asked what date the EEOC had

"accepted." But it did not. see id. at 259-62. So the

date that Moini wrote on his EEOC form-and any

date the EEOC "accepted"-does not control.

Finally, Moini alleges that he did not obtain

"most" evidence of the University's discrimination

against him until the grievance process. Compl.

41,55; see also PI.'s Proposed Sur-Reply at 4 ("[A]s

discussed in the Complaint, the EEOC [charge] and

this Complaint were filed when abundant evidences

of racial discrimination by the University against the

Plaintiff ... were obtained during the grievance

process[.]"). Moini does not explain why this would

mean that the limitations period began on

September 19. Perhaps he is intimating that he was

not fully aware of the alleged discrimination before

the grievance process concluded. But as the

President points out, Moini suggests elsewhere in his

Complaint that he suspected bias from the outset.

Defs Mem. at 28-29; see Compl. ^ 56. And documents

that he filed during the grievance process-as early as

November 2017-charge that the University was

"biased" against him. Compl, Exs. at 400,416.

In any event, other judges in this District have

concluded

that

"[n]otice

or

knowledge

of

discriminatory motivation is not a prerequisite for a

cause of action to accrue." Fortune v. Holder, 767 F.

Supp. 2d 116, 122 (D.D.C. 2011) (quoting Hulsey v.

Kmart, Inc., 43 F.3d 555, 558 (10th Cir. 1994».

Rather, "it is knowledge of the adverse employment

decision itself that triggers the running of the

statute of limitations." Id. Courts of appeals agree.

See Hamilton v. 1st Source Bank, 928 F.2d 86, 88-89

A-33

(4th Cir. 1990) ("To the extent that notice enters the

analysis, it is notice of the employer's actions, not the

notice of a discriminatory effect or motivation, that

establishes the commencement of the pertinent filing

period."); Merrill v. S. Methodist Univ., 806 F.2d 600,

604-05 (5th Cir. 1986) (same).

Indeed, Merrill reached this conclusion by

relying on Ricks. See 806 F.2d at 605. The plaintiff in

Merrill proposed that the court "focus on the date the

victim first perceives that a discriminatory motive

caused the act, rather than the actual date of the act

itself." Id. But this proposal was "inconsistent" with

Ricks, the "leading case on this subject." Id. It

clashed with Ricks's teaching that "the Title VII

limitations period is partially designed to 'protect

employers from the burden of defending claims

arising from employment decisions that are long

past.'" Id. (quoting Ricks, 449 U.S. at 256-57); accord

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450

(7th Cir. 1990) ("The discovery rule is implicit in the

holding of Ricks that the statute of limitations began

to run' at the time the tenure decision was made and

communicated to Ricks[.]'" (quoting Ricks, 449 U.S.

at 258)). Thus, because June 22, 2017, was when the

University notified Moini that it had denied him

tenure and that his appointment for the upcoming

academic year would be "terminal," that is when "the

alleged unlawful employment practice occurred." 42

U.S.C. § 2000e-5(e)(l).

From here, the analysis is straightforward.

Moini filed his charge with the EEOC no earlier than

April 14, 2019. Compl. Exs. at 763.10 That is well

10 April 14 was when Moini sent an "initial inquiry" to the

EEOC. Comp!. Exs. at 763. As the President points out, he filed

his formal charge on July 12. Def.'s Mem. at 27 n.ll, 50. But

A-34

more than 300 days after June 22, 2017. So Moini's

Title VII claim is time-barred, and the Court will

dismiss it. See 42 U.S.C. § 2000e-5(e)(l); Ricks, 449

U.S. at 254-55,256 & n.7, 260 n.13.1!

As for Moini's DCHRA claim, it is also timebarred. An individual must file a DCHRA claim

"within one year of the unlawful discriminatory act,

or the discovery thereof." D.C. Code § 2-1403.16(a);

see Estenos v. PAHO/WHO Fed. Credit Union, 952

A.2d 878, 885 (D.c. 2008). But "timely filing a claim

with the [EEOC], which in turn cross-files with

DCHRA, tolls the time for filing a private cause of

action under D.C. law." Estenos, 952 A.2d at 882,

886.

The one-year limitations period for the

DCHRA began to run on June 22,2017. The D.C.

Court of Appeals generally relies on decisions of

even the earlier date was well more than 300 days after June

22, 2017.

11 As the President notes, arguably Moini had only 180 days-not

300 days-to file his EEOC charge. Def.'s Mem. at 29 n.15. Moini

does not allege that he "initially instituted proceedings with a

State or local agency" before filing with the EEOC. 42 U.S.C. §

2000e-5(e)(l). At most, when he filed his EEOC charge, it was

"automatically cross-filed with the D.C. Office of Human Rights

pursuant to a work-sharing agreement." Epps v. Potomac Elec.

Power Co., 389 F. Supp. 3d 53,59 (D.D.C. 2019). Other judges in

this District have concluded that, in this circumstance, the 180day limitations period applies. See, e.g., id. at 59-60; AshrafHassan v. Embassy of France, 878 F. Supp. 2d 164, 170-71

(D.D.C. 2012); but see Chambers v. District of Columbia, 389 F.

Supp. 3d 77,86-87 (D.D.C. 2019), appeal filed, No. 19-7098 (D.C.

Cir.) (relying on Carter v. George Wash. Univ., 387 F.3d 872,

879 (D.C. Cir. 2004)). If the 180-day period applies, Moini's

Title VII claim is untimely even i/the clock began on September

19, 2018, rather than June 22, 2017. The date of Moini's initial

EEOC inquiry-April 14, 2019-was more than 180 days after

September 19, 2018.

A-35

federal courts in Title VII cases when applying the

DCHRA. See Daka, Inc. v. Breiner, 711 A.2d 86, 94

(D.C. 1998). Indeed, that court has expressly

followed Ricks many times. It has done so to

conclude that the one-year limitations period for

wrongful termination claims begins to run when the

employee is "notified unequivocally of his

termination." Barrett v. Covington & Burling LLP,

979 A.2d 1239, 1252 (D.C. 2009) (quoting Stephenson

v. Am. Dental Ass 'n, 789 A.2d 1248, 1252 (D.C.

2002) (also following Ricks)). Arid it has relied on

Ricks to hold that "review of the final termination

through grievance proceedings did not make the

termination less final, nor did plaintiffs availing

herself of grievance procedures toll the time for

statutory action." Jones v. Howard Univ., 574 A.2d

1343, 1346-47 & n.5 (D.C. 1990) (cleaned up).

Barrett, Stephenson, and Jones did not even

involve a denial-of-tenure allegation, yet the D.C.

Court of Appeals followed Ricks in those cases. So it

would surely do so in a case that does involve that

allegation. Thus, the limitations period for Moini's

DCHRA claim began to run when Title VU's

limitations period began to run under Ricks. That

date is June 22, 2017.

Moini brought his DCHRA claim on October

16,2019. That was far too late. It makes no difference

that Moini filed an EEOC charge. He did not do so

until April 2019 at the earliest, after the one-year

limitations period expired in June 2018. And in any

event, the rule is that "timely filing a claim with the

[EEOC]" tolls the limitations period for a DCHRA

claim. Estenos, 952 A.2d at 882 (emphasis added). As

explained in the Title VII discussion, Moini did not

"timely" file his EEOC charge. For these reasons,

Moini's DCHRA claim is untimely and the Court will

A-36

dismiss it. See D.C. Code § 2-1403.16(a); Estenos, 952

A.2d at 885-86.

Since the Court is dismissing Moini's Title VII

claim and his DCHRA claim, it will dismiss Count I

of the Complaint. See Compl. 84.

C.

The University President next urges the Court

to dismiss Moini's claim under 42 U.S.c. § 1981

(Count III). But this time, Supreme Court precedent

cuts in Moini's favor.

Under § 1981, "[a]II persons ... shall have the

same right in every State ... to make and enforce

contracts ... as is enjoyed by white citizens." To state

a claim under this statute, "the plaintiff must allege

that (1) [he] is a member of a racial minority; (2) the

defendant intended to discriminate against [him] on

the basis of race; and (3) the discrimination

concerned an activity enumerated in § 1981." Wilson

v. DNC Servs. Corp., 417 F. Supp. 3d 86, 91 (D.D.C.

2019). The President contends that Moini "failed to

sufficiently plead the first two elements." Def.' s

Mem. at 33. The Court disagrees, given the low

pleading bar and the even "less stringent standards"

that apply to pro se complaints. Erickson, 551 U.S. at

94.

On the first element, the President argues

that Moini has alleged discrimination because of

national origin, rather than discrimination because

of race. Def.'s Mem. 33-34. The President believes

that Moini's self-description as "Middle Eastern" and

"Iranian" is about national origin, not race. Id. at 33.

And because § 1981 protects against discrimination

because of race, but not national origin, the

President concludes that Moini has no claim under

A-37

this statute. Id. (citing Nono v. George Wash. Univ.,

245 F. Supp. 3d 141, 147 (D.D.C. 2017)).

The reality is not so clear-cut. Once again, we

have a Supreme Court decision on point: Saint

Francis College v. Al-Khazraji, 481 U.S. 604 (1987).

The plaintiff in that case-an associate professor-was

"a citizen of the United States born in Iraq." Id. at

606. The College denied him tenure, so he filed a pro

se complaint raising claims under Title VII and §

1981. Id. The district court ruled that § 1981 "does

not reach claims of discrimination based on Arabian

ancestry." Id. The Third Circuit reversed. It held

that the plaintiff "had alleged discrimination based

on race and that although under current racial

classifications Arabs are Caucasians, [he] could

maintain his § 1981 claim." Id. at 607. Section] 981,

in its view, reached "discrimination directed against

an individual because he 01' she is genetically part of

an ethnically and physiognomically distinctive subgrouping of homo sapiens." Id.

This time, the Supreme Court agreed with the

Third Circuit. Id. The Court had "little trouble in

concluding" that § 1981 protects "identifiable classes

of persons who are subjected to intentional

discrimination solely because of their ancestry or

ethnic

characteristics." Id.

at

613.

"Such

discrimination," the Court reasoned, is "racial

discrimination that Congress intended § 1981 to

forbid, whether or not it would be classified as racial

in terms of modern scientific theory." Id. So the

bottom line was this: if a plaintiff "can prove that he

was subjected to intentional discrimination based on

the fact that he was born an Arab, rather than solely

on the place or nation of his origin ... he will have

made out a case under § 1981." Id.

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Given Saint Francis College, Moini has pled

"racial discrimination" under § 1981 if he has alleged

that the University discriminated against him

"solely because of [his] ancestry or ethnic

characteristics." Id. The President insists that Moini

has not done so. Def.'s Reply at 7- 8, ECF No.9. He

points out that the Complaint, at several points,

refers simply to discrimination because of "national

origin" or "country of origin." Id. at 8; see, e.g.,

Compl. If 4. The President also observes that Moini

checked the box for "national origin"-not "race"-on

his EEOC charge. Def.'s Mem. at 33,50.

As support, the President relies mainly on

Ndondji v. InterPark Inc., 768 F. Supp. 2d 264

(D.D.C. 2011), a decision that grappled with how to

apply Saint Francis College. The plaintiff-who had

counsel-raised § 1981 claims, but Judge Bates

dismissed them. Id. at 269, 275. He refused to

endorse the plaintiffs "attempt to blur race and

national origin." Id. at 273.

The plaintiff alleged that his former employer

treated "Americans" differently from "foreign

nationals." Id. For Judge Bates, a distinction

between "Americans" and "foreign nationals" was a

distinction based on country of origin, not "ancestry

or ethnic characteristics." See id. The plaintiff

identified as an "Angolan," but he never explained

"why identifying oneself as 'Angolan' should be

considered a 'very distinct' ancestral or ethnic

characteristic rather than a person's place of birth or

origin." Id. at 274. In short, the "clear thrust" of the

complaint was "national origin discrimination." Id.

And the plaintiffs EEOC charge "reinforce [d]" this

reading, since he had checked off the "national

origin" box instead of the "race" box. Id. Judge

Bates's opinion is thorough and well-reasoned.

A-39

Moini's § 1981 claim can proceed only because there

are a few differences between his case and Ndondji.

For one, he describes himself as "Middle Eastern"not just "Iranian"-which suggests a focus on

"ancestry or ethnic characteristics," rather than just

country of origin. Cj Saint Francis College, 481 U.S.

at 613 (holding that an Iraqi native could make out a

§ 1981 claim if he could prove discrimination "based

on the fact that he was born an Arab" (emphasis

added)).

Moini also describes other professors-who the

University allegedly treated more favorably--as

"Caucasian," "white," and "of European descent."

Compl.

1, 7, 57, 60, 88. Use of these terms

suggests racially tinged discrimination within the

meaning of § 1981. Cf. Saint Francis College, 481

U.S. at 610 ("Plainly, all those who might be deemed

Caucasian today were not thought to be of the same

race at the time § 1981 became law."). Contrast his

allegations with those of Ndondji, who "never

identified] ... the races of other similarly situated

employees who

were allegedly treated more

favorably than he was." 768 F. Supp. 2d at 275.

And unlike Ndondji, Moini is proceeding pro

se. The Supreme Court drew a subtle distinction in

Saint Francis College. A plaintiff must prove

discrimination based on his "ancestry or ethnic

characteristics," rather than discrimination based on

"the place or nation of his origin." 481 U.S. at 613.

The two concepts are connected. Cj id. ("It is clear ...

that the civil rights sections of the 1870 Act provided

protection for immigrant groups such as the

Chinese."). The Court is mindful of the "less

stringent standards" that apply to pro se complaints.

Erickson, 551 U.S. at 94. Given these lower

standards-and given that Moini does make some

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allegations suggesting discrimination because of

"ancestry or ethnic characteristics"-he has done just

enough to plead a § 1981 claim.12

The Court does not find it dispositive that

Moini checked the "national origin" box on his EEOC

form instead of the "race" box. The President cites no

authority suggesting that a pro se plaintiff forfeits a

§ 1981 claim by doing so. See Def.'s Mem. at 33-34;

Def.'s Reply at 7-8. Even in Ndondji-not a pro se

case-the failure to check the "race" box on the EEOC

form was just one factor in the analysis. See 768 F.

Supp. 2d at 273.

The President's next argument for dismissal

focuses on the second element of a § 1981 claim-the

causation element. A plaintiff must plausibly allege

that his "ancestry or ethnic characteristics" were the

"but for" cause of the defendant's actions. See

Comcast Corp. v. Nat 'l Ass 'n of African Am.-Owned

Media, 140 S. Ct. 1009, 1019 (2020). As the

President sees it, Moini has not plausibly alleged

but-for causation. Def.'s Mem. at 34-39; Def.'s Reply

at 9-11; Def.'s Notice of Sup pi. Authority at 1-2, ECF

No. 14.

The Court disagrees. The federal rules set

forth "liberal pleading standards." Erickson, 551 U.S.

at 94. And pro se complaints are subject to even less

12 The President footnotes two decisions other than Ndondji,

but neither warrants a different conclusion. Def.'s Reply at 8

n.2. In one case, the plaintiff had counsel, and the court rejected

his § 1981 claim on summary judgment, rather than at the

pleading stage. Kalantar v. Lufthansa German Airlines, 402 F.

Supp. 2d 130,133,137-38 (D.D.C. 2005). In the other case, the

court dismissed a pro se plaintiff s § 1981 claim because it was

"solely based on the fact that he is from Afghanistan." Amiri v.

Hilton Wash. Hotel, 360 F. Supp. 2d 38, 42 (D.D.C. 2003). For

the reasons stated, Moini has done just enough to avoid the

same fate.

A-41

stringent standards. Id. Given the low bar, Moini has

done enough to plead but-for causation.

The essence of Moini's Complaint is that the

University denied him tenure on the pretext of his

poor student evaluations, when the real reason was

his ancestry or ethnic characteristics. See Compl.

1, 5, 57, 60. He makes some allegations that,

liberally construed, support this claim. For example,

he asserts that" 100%" of the tenured professors in

the Department of Forensic Sciences are, unlike him,

"Caucasian" and "of European descent." Id.

7,57.

He observes that denying him tenure maintained

this status quo. Id. Tj 57. He also offers Professor

Rowe as a comparator. Rowe received a promotion to

Department Chair, even though he had "received

similarly poor student evaluations" from the same

graduate seminar. Id. More generally, Moini alleges

"a toxic atmosphere of racism and bias" at the

University. Id. 1 1. And "[w]hile the University

President and Provost were well aware" of this

racism "they ignored its effects on teaching

evaluations of minority faculty." Id. H 59.

Moini's allegations also plausibly suggest that

the stated reason for denial of tenure-his poor

student evaluations-was pretextual. His tenure

application went through six levels of review, and his

grievance went through four levels. Most of his

reviewers recommended against tenure, but not all.

The

Departmental

Committee . "unanimously"

recommended tenure. Id. ~ 35. The Appeals Panel

was also unanimous in voting to uphold Moini's

grievance. Id. 1 46; Compl. Exs. at 53. This Panel

found it troubling that others had relied so heavily

on the poor student evaluations. Compl. Exs. at 54.

So too did the dissenting member of the initial

Hearing Panel. Id. at 7-9. That dissenter cited an

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internal memorandum for the College of Arts and

Sciences stating that "[sjtudent evaluations ... are an

imperfect tool for measuring teaching evidence and

quality." Id. at 7. That could be relevant. See Brady

v. Office of Sergeant at Arms, 520 F.3d 490, 495 n.3

(D.C. Cir. 2008) (noting that an employee can "try to

cast doubt on an employer's asserted reason" by

pointing to "the employer's failure to follow

established procedures or criteria").

To be clear, the Court is not saying that Moini

will ultimately be able to prove his case. Far from it.

He has his work cut out for him. For example, it is

not clear that Rowe is an appropriate comparator.

Moini invokes the University's decision to promote

Rowe to Department Chair. Compl. If 57. But the

standards governing that decision might differ from

the standards governing tenure. And differences

would be relevant. See Burley v. Nat 'l Passenger

Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015) ("A

plaintiff must ... demonstrate that all of the relevant

aspects of his employment situation were nearly

identical to those of the other employee." (cleaned

up)).

More, there is the issue of pretext. Even if the

University had no good reason to deny Moini tenure,

that need not mean its reason was pretextual. See

Fischbach v. D. C. Dep't of Corr., 86 F .3d 1180, 1183

(D.C. Cir. 1996) ("[T]he issue is not the correctness or

desirability of the reasons offered ... but whether the

employer honestly believes in the reasons it offers."

(cleaned up)). The pleading stage is an especially low

bar for pro se plaintiffs, and today the Court holds

A-43

only that Moini's § 1981 claim clears that low bar. So

the Court will not dismiss Count III.13

The Court will also not dismiss any of Moini's

contract claims at this stage (Counts II and IV). The

issues surrounding these claims are fact-bound.

Questions of what obligations the University had and

whether it breached any of those obligations depend

heavily on how to interpret the Faculty Code. The

Court thinks it best to wade into these issues-if everat summary judgment.14 For now, the Court holds

only that Moini has plausibly alleged one or more

contract claims, particularly given his pro se status.

Erickson, 551 U.S. at 94.

To state a claim for breach of contract under

D.C. law, a plaintiff must allege: "(1) a valid contract

between the parties; (2) an obligation or duty arising

out of the contract; (3) a breach of that duty; and (4)

damages caused by breach." Tsintolas Realty Co. v.

Mendez, 984 A.2d 181, 187 (D.C. 2009). The statute

13 After briefing was complete, Moini moved to add an exhibit to

his opposition brief. Mot. For Leave to Amend, ECF No. 13. It is

a faculty petition calling for the University President to resign

because of "racist remarks." Id. at 1. The purpose of this motion

is to help corroborate Moini’s claim of race discrimination. See

id. at 3. The Court will deny this motion as untimely, since it

came nearly two months after he filed his opposition brief. In

any event, the proposed exhibit would not affect the Court's

conclusions here. Moini has done enough to plead a § 1981

claim based on his Complaint and the exhibits he attached to it.

And the proposed exhibit has nothing to do with the timeliness

of his Title VII and DCHRA claims. Moini is free to include this

exhibit at the summary judgment stage. See Fed. R. Civ. P.

56(c)(1)(A).

14 If the Court ends up denying the § 1981 claim at summary

judgment, it may decide not to exercise supplemental

jurisdiction over any remaining contract claims. See 28 U.S.C. §

1367(c)(3).

A-44

of limitations for these claims is three years. D.C.

Code § 12- 301(7).

The President reads Counts II and IV of

Moini's Complaint as raising three claims for breach

of contract. Def.' s Mem. at 40-44. His arguments for

dismissing them now are unpersuasive.

First, Moini alleges a breach based on the

University's failure to provide him with enough

notice of the concerns about his teaching. Compl, f f

86, 90. The President urges that Moini's exhibits

"refute" his own allegations on this point. Def.'s

Mem. at 40. For example, the President points to

faculty evaluations that Moini received before he

applied for tenure. Id. But some notice does not

necessarily mean enough notice. This issue requires

closer attention to what communications the

University had with Moini about his teaching and

what communications-if any-the Faculty Code

requires.

Second-and relatedly-Moini alleges that he did

not receive a "mid-tenure review." Compl. Iff 16, 79.

The President says this claim is time-barred under

D.C.'s three-year statute of limitations because it

would have accrued no later than September 20 15"midway between his start date of January 1,2014

and the end of his initial appointment on June 30,

2017." Def.'s Mem. at 40-41. But the President's

unstated assumption here is that a "mid-tenure

review" must occur by the exact midway point. For

now, he has not provided enough basis for this

assumption.

Third, Moini alleges that denying him tenure

was an "arbitrary and capricious" action, which the

Faculty Code forbids. Compl. f 2. The President

stresses that courts "generally give deference" to the

decisions that universities make, including tenure

A-45

decisions. Def.' s Mem. at 42 (citing Brown v. George

Wash. Univ., 802 A.2d 382, 385 (D.C. 2002)). Even

so, Moini has made a plausible allegation of an

"arbitrary and capricious" decision. For example,

recall that the Appeals Panel and the dissenting

member of the Hearing Panel found it troubling that

others had relied heavily on the student evaluations.

See supra Section III. B. At summary judgment, the

Court will be in a better position to consider how

much deference to give the University.

The President also seeks dismissal of any

other "sundry" contract claims that Moini alludes to

in his Complaint. Def.'s Mem. at 44-47. These

include allegations that the University failed to

provide "metrics for measuring teaching excellence"

and that it did not follow its own procedures during

the grievance process. Compl. f 3. The Court will not

parse these allegations now. They are intertwined

with Moini's other contract claims. More, they are

fact-bound and touch on fine details of the Faculty

Code. See Def.'s Mem. at 45-46.

The President urges the Court to dismiss some

of these contract claims because, at the very least,

Moini suffered no damages. Id. He contends that

under D.C. law, proof of actual damages is an

element of a contract claim. Id. at 45 & n.30. This

may not be correct. See Wright v. Howard Univ., 60

A.3d 749, 753 (D.C. 2013) ("Even where monetary

damages cannot be proved, a plaintiff who can

establish a breach of contract is entitled to an award

of nominal damages."). At best, there is a conflict

within the caselaw on this question. Compare id.,

with Osbourne v. Capital City Mortg. Corp., 727 A.2d

322, 324-25 (D.C. 1999) ("[Appellants' prima facie

case for breach of contract ... required some proof of

A-46

\

damages.")- The Court sees no reason to weigh in on

this potential conflict now.

IV.

For these reasons, it is hereby

ORDERED that Defendant's [6] Motion to Dismiss

is GRANTED IN PART and DENIED IN PART; it is

further

ORDERED that Count I of Plaintiffs [1] Complaint

is DISMISSED; and it is further

ORDERED that Defendant shall file a responsive

pleading to Plaintiffs [1] Complaint on or before May

8, 2020. See Fed. R. Civ. P. 12(a)(4)(A).

SO ORDERED.15

Dated: April 24, 2020

TREVOR N. McFADDEN, U.S.D.J.

15 The Court has considered Moini's request for a hearing on

the President's motion to dismiss, see Pl.'s Opp'n at 3, but finds

oral argument unnecessary here. See LCvR 78.1.

A-47

Opinion and Order of the United States

District Court for the District of Columbia

Granting Defendant's Motion for Summary

Judgment and Denying Plaintiffs Cross Motion

(May 13, 2022)

United States District Court, District of Columbia

MEHDI MOINI,

Plaintiff,

v.

MARK S. WRIGHTON, in his official capacity as

President, George Washington University,

Defendant.

l:19-cv-03126 (TNM)

05-13-2022

MEMORANDUM OPINION

George Washington University denied tenure

to Dr. Mehdi Moini. Proceeding pro se, Moini sued

the University's President-a position held by Dr.

Thomas LeBlanc at the time and now by Dr. Mark S.

Wrighton-alleging that the denial violated multiple

laws and his employment contract. After the Court

partially granted the President's motion to dismiss,

the parties proceeded to discovery. That phase is

A-48

complete, and both parties now move for summary

judgment.

The Court finds that the University

propounded a legitimate reason for denying tenure:

That Moini had not met the requisite standard for

teaching. Moini tries to show that this explanation

was pretext for race discrimination. None of his

arguments succeed. So too for his contractual claims,

which are either time-barred or do not show any

violation of a contract by the University.

The Court therefore will grant the President's

motion and deny Moini's 1 cross-motion.16

I. BACKGROUND

A. The Tenure Application and Review

The University is a private institution in

Washington, D.C. Moini, who identifies himself as a

“Middle Eastern (Iranian) man.” Compl.

5, ECF

No. 1, began his career there in 2014 as an

untenured Associate Professor in the Department of

Forensic Sciences (the Department), see Def.'s

Statement of Mat'l Undisputed Facts (Def.'s SMUF)

Til 8, 9, 11, ECF No. 48. Although the University did

not hire Moini to a tenured position, it said it would

reach a tenure decision in three-and-a-half years-by

mid-2017. See id. Iff 9, 11. That timeline was quicker

16 Many of the docket entries are sealed, with all exhibits

combined into one large ECF document, comphcating citations.

For documents like declarations that have paragraph numbers,

the Court cites the paragraph number in-hne and provides in

footnotes the CM/ECF page numbers where the entire

document can be found. For instance, Defendant's SMUF is

available at ECF No. 48, pages 58-124. For documents without

paragraph numbers, the Court provides in-line citations. All

page numbers refer to the pagination generated by the CM/ECF

system.

-4

A-49

than usual: the University typically makes tenure

decisions after seven years. See id. ,f 9.

When Moini accepted the position, he agreed

to all conditions “stated in the Faculty Code and

Faculty Handbook.” Def.'s Mot. for Summ. J. (Def.'s

MSJ), Ex. 22, ECF No. 48 at 950. The Code contains

the criteria for tenure. As of 2015, it reserved tenure

for faculty “who demonstrate excellence in

scholarship, teaching, and engagement in service

and who show promise of continued excellence.”

Def.'s MSJ, Ex. 6 (Faculty Code) § IV(C)(1), ECF No.

48.17 This case centers on the “excellence in

teaching” criterion.

Moini began teaching classes in fall 2014,

including a mandatory graduate seminar called

FORS 6292. See Def.’s SMUF If 73, 74. Moini

originally did not teach the class alone. From Fall

2014 to Spring 2016 he co-taught with Dr. Walter

Rowe, see id. f 77, a Caucasian tenured professor.

Students would evaluate each class at the end

of the semester and rate faculty on a scale of one to

five, with five being the best. Id. f 80. During Moini’s

first year, students evaluated him and Rowe

together. Id. f 77. The average scores in those

evaluations fell short of the Department’s overall

average. See id. ff 85, 89. Moini also co-taught two

other classes and received similarly below-average

evaluations from students. See id. f f 87, 91.

Those scores did not escape the notice of

University officials. The Department Chair, Victor

Weedn, told Moini in 2014 that his teaching needed

to improve because Moini’s scores “[were] not as good

as the others.” Def.’s MSJ, Ex. 10 (Weedn Dep.), ECF

No. 48 at 681. Weedn also referred Moini to the

17 Available at pages 474-506.

A-50

University’s Teaching Center. See Def.’s MSJ, Ex. 13

(Moini Dep.), ECF No. 48 at 784. And in 2015,

Weedn told Moini and Rowe that their seminar had

prompted critical comments from students. See id. at

803.

Starting in Fall 2015, students could evaluate

teachers individually. See Def.’s SMUF f 93.

Between that time and when he submitted his

application for tenure, Moini taught six classes. He

received below-average scores in five of them. See id.

Tflf 93, 95, 97, 99, 101, 103. That trend continued

after Fall 2016, when Moini began teaching the

graduate seminar by himself.

The University had promoted Rowe to

Department Chair earlier that year. See id. If 22.

With that position, Rowe wrote some of Moini’s

annual report for the 2015-16 school year. See Def.’s

MSJ, Ex. 18, ECF No. 48 at 902-918. Rowe praised

Moini as “a valuable asset to the Department” but

admitted that student evaluations of Moini were “a

mixed bag.” Id. at 916. Moini particularly “need[ed]

to improve the graduate seminar course.” Id. Moini

himself admitted in that same report that his

evaluations “show[ed] mixed results.” Id. at 907.

In September 2016, Moini applied for tenure

and promotion. See Def.’s SMUF If 126. That

submission began a multi-level process of review.

First, the Department’s Personnel Committee—

chaired by Rowe—evaluated Moini’s materials. The

Committee praised his “very strong research

program” and “strongly positive” evaluations from

external reviewers. See Def.’s MSJ, Ex. 3B, ECF No.

48 at 153. But the Committee also noted that Moini’s

student

were

“notably

below

evaluations

departmental averages.” Id. “Because of this,” the

Committee could not vote for tenure but requested

A-51

that the Dean extend Moini’s tenure clock. Id. The

Dean denied that request. See Def.’s SMUF f 133. So

the Committee reconvened and “unanimously” voted

to recommend Moini for tenure. Def.’s MSJ, Ex. 3C,

ECF No. 48 at 155.

According to Rowe, who supported Moini’s

elevation, the Committee felt he was “too valuable an

assert [sic]” to lose. Id. Rowe then wrote a letter in

which he “strongly endorse [d]” the recommendation

of tenure. Def.’s MSJ, Ex. 3D, ECF No. 48 at 160.

Rowe acknowledged that Moini’s evaluations “ha[d]

been below departmental averages,” but the

Department doubted that those evaluations

“provide [d] a complete picture of [Moini’s]

interactions with [ ] students.” Id. at 159.

Moini’s tenure application then followed a

lengthy and ultimately fruitless path:

•

The Personnel Committee of the Columbian

College of Arts and Sciences (CCAS or the

College)—which housed the Department—

reviewed Moini’s application. See Def.’s SMUF

148. Based on the low numerical scores and

negative comments from students, the

committee had “a strong negative impression

of [ ] Moini’s teaching,” which “f[ell] well

below” what the committee “would expect from

[ ] tenured colleagues.” Def.’s MSJ, Ex. 4G,

ECF No. 48 at 368. So the committee

recommended against tenure.

•

The College’s Dean agreed with the CCAS

Committee that Moini’s teaching “ha[d] not

manifested excellence.” See Def.’s MSJ, Ex.

4H, ECF No. 48 at 373. He recommended

against tenure. See id. at 373.

A-52

•

•

•

The

University’s

Provost

likewise

recommended against tenure. See Pl.’s MSJ,

Ex. 50, ECF No. 53-6 at 1140-41.

Moini’s application went to review by the

Faculty Senate Executive Committee (FSEC).

See id. If 163. The FSEC first found that

Moini’s application “[did]

not provide

substantial evidence of excellence in teaching”

but then recommended to extend his tenure

clock rather than deny tenure. Def.’s MSJ, Ex.

41, ECF No. 48 at 388.

The University President disagreed.18 He

denied tenure outright, determining that

Moini had “failed to meet the standard of

excellence in teaching.” Def.’s MSJ, Ex. 4J,

ECF No. 48 at 390.

The President’s decision was final, and the

University informed Moini of it in June 2017. See

Def.’s SMUF 1 171.

B. The Grievance Process

But that was not the end of the matter. In

August 2017, Moini filed a grievance under the

Faculty Code. See Def.’s SMUF f 172. Under that

process, a Hearing Committee determines whether a

grievant “has established by clear and convincing

evidence” a violation of the Code. See Procs. for Impl.

of Faculty Code § (E)(4)(c)(7), ECF No. 48 at 503.

Like the tenure application, the grievance process

includes multiple levels of review.

18 The President then was Dr. Steven Knapp, not the named

Defendant here. See Def.’s SMUF If 168.

A-53

After hearing arguments from Moini and the

University, a majority of the Hearing Committee

affirmed the denial of tenure. The majority agreed on

the excellence of Moini’s scholarship and research

but determined that the evaluations from the

graduate seminar sustained the earlier conclusion

that Moini’s teaching fell “short of excellent.” Def.’s

MSJ, Ex. 30, ECF No. 48 at 1002. One panel member

dissented. He concluded that the seminar was, by its

structure and content restrictions, “unteachable”

regardless of professor. Id. at 1004. He also decried

the reliance on student evaluations, which he said

were not “a sufficient basis for assessing teaching.”

Id.

From there, Moini’s grievance followed

another multi-step but unsuccessful path:

•

•

Moini first appealed to an Appeals Panel

consisting of eight professors from various

unanimously

Panel

departments,

The

overturned the Hearing Committee’s decision,

concluding that the Committee and the tenure

reviewers had improperly relied “solely on

student evaluations of’ the graduate semiliar,

“disregard[ing] every other metric on which

teaching should be evaluated[.]” Def.’s MSJ,

Ex. 31, ECF No. 48 at 1009.

The Provost then reviewed the Appeals Panel

decision. Contrary to that Panel, he concluded

that the various reviewers had considered the

entire record, not solely the graduate seminar

evaluations. See Def.’s MSJ, Ex. 40, ECF No.

48 at 446. He also noted the Panel’s admission

that Moini’s evaluations were merely

“acceptable.” See id. at 449-50. For these and

other reasons, the Provost found compelling

A-54

•

reasons not to affirm the Appeals Panel’s

decision. See id. at 454.

As a final reviewer, a committee of the

University Board of Trustees agreed with the

Provost. See Def.’s SMUF t 236.

After denial of his grievance, Moini left the

University sometime in 2018. See Decl. of Daniele

Podini, f 13, Def.’s MSJ, Ex. 2, ECF No. 48 at 13839.

C. This Action

In October 2019, Moini filed this pro se

Complaint against the President. See Compl., ECF

No. 1. He alleged that the denial of tenure

constituted discrimination in violation of Title VII, a

D.C. human rights statute, and 42 U.S.C. 1981. See

id. He also alleged that the University had violated

its contractual obligations during Moini’s tenure and

grievance processes. See id.

The President moved to dismiss the

Complaint, and the Court partially granted that

motion. See Moini v. LeBlanc, 456 F. Supp. 3d 34

(D.D.C. 2020). The Court held that Moini’s Title VII

and D.C. law claims were time-barred. See id. at 45,

46. But the Court denied the motion as to Moini’s

contractual claims and his claims under § 1981. See

id. at 50, 51.

After discovery, both parties cross-moved for

summary judgment. See Def.’s MSJ, ECF No. 48 at

6-57; Pl.’s MSJ, ECF No. 53-1. Those motions are

now ripe.19

II. LEGAL STANDARDS

19 The Court has subject matter jurisdiction under 28 U.S.C. §

1331 over Moini’s federal claims and supplemental jurisdiction

under 28 U.S.C. § 1367 over his contractual claims.

A-55

Summary judgment is appropriate if “there is

. no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is material if it “might

affect the outcome of the suit under the governing

law,” and a dispute is genuine if “the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). When evidence conflicts,

cburts must “view the evidence in the light most

favorable to the nonmoving party and draw all

reasonable inferences in its favor.” Mastro v.

Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C.

Cir. 2006).

The movant bears the initial burden of

identifying those portions of the record that show the

lack of a genuine issue of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once

completed, the other party must “designate specific

facts showing that there is a genuine issue for trial.”

Id. at 324 (cleaned up). Unsupported allegations or

mere denials in the pleadings are not enough. See

Fed. R. Civ. P. 56(c). Similarly, because the

nonmovant must supply evidence that, if true, would

allow a reasonable jury to find in his favor, a “mere .

. . scintilla of evidence in support of’ the nonmovant’s

position cannot defeat a motion for summary

judgment. Anderson, All U.S. at 252.

Moini proceeds pro se, so the Court generally

subjects his pleadings to “less stringent standards

than formal pleadings drafted by lawyers.” Gray v.

Poole, 275 F.3d 1113, 1115 (D.C. Cir. 2002) (cleaned

up). “Any leeway does not extend,” however, “to the

evidence required at summary judgment[.]” Penkoski

v. Bowser, 548 F. Supp. 3d 12, 20 (D.D.C. 2021)

A-56

(emphasis in original). Courts hold pro se plaintiffs to

the same evidentiary burdens as represented

plaintiffs. See Prunte v. Uniu’l Music Grp., Inc., 699

F. Supp. 2d 15, 21-22 (D.D.C. 2010), aff’d, 425 F.

App’x 1 (D.C. Cir. 2011).

III. RACIAL DISCRIMINATION UNDER

SECTION 1981

The Court begins with Moini’s discrimination

claims under § 1981. That statute “protects the equal

right of ‘all persons within the jurisdiction of the

United States’ to ‘make and enforce contracts,”’

including contracts for employment, “without respect

to race.” Domino’s Pizza, Inc. v. McDonald, 546 U.S.

470, 474-75 (2006) (quoting 42 U.S.C. § 1981(a)).

Section 1981 “can be violated only by purposeful

discrimination.” Gen. Bldg Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 391 (1982).

Moini alleges that the University denied him

tenure on account of his race. Moini 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 (D.D.C. 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., 627 F.3d 1245, 1247 (D.C. Cir. 2011).

Because direct evidence is “hard to come by,” Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1293 (D.C. Cir.

1998) (cleaned up), its presence “generally entitle[s]

a plaintiff to a jury trial,” Vatel, 627 F.3d at 1247.

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When a plaintiff must instead rely on indirect

evidence of discrimination, the familiar McDonnell

Douglas burden-shifting framework governs. See

Nanko Shipping, USA u. Alcoa, Inc., 850 F.3d 461,

467 (D.C. Cir. 2017). That framework has three

parts.

First, a plaintiff must establish a prima facie

case of racial discrimination. To prove such a case

under § 1981, the plaintiff must show that (1) he is a

member of a racial minority; (2) his employer

intended to discriminate against him on the basis of

race; and (3) the discrimination concerned an activity

enumerated in § 1981. See Wilson v. DNC Servs.

Corp., 417 F. Supp. 3d 86, 91 (D.D.C. 2019), affd,

831 F. App’x 513, 516 (D.C. Cir. 2020).

Next, the burden shifts to the employer to

produce a “legitimate, non-discriminatory reason” for

its actions. Brady v. Off. of Sergeant at Arms, 520

F.3d 490, 493 (D.C. Cir. 2008) (Kavanaugh, J.). If the

employer produces that evidence, the burden swings

back. To survive summary judgment, the employee

must show that the employer’s explanation was not

its true reason and instead was pretextual. See

Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109,

1114 (D.C. Cir. 2016).

That said, once the employer asserts a

nondiscriminatory

explanation

supported

by

evidence, “the question whether the employee

actually made out a prima facie case is no longer

relevant.” Brady, 520 F.3d at 493 (cleaned up). So a

court proceeds to the ultimate question: whether the

employee has produced enough evidence for a

reasonable jury to find that the employer’s

explanation was not the actual basis for its actions

and that discrimination was the real reason. See id.

“Of course, consideration of this question requires

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[the court] to evaluate all of the evidence before [it],

including the same evidence that a plaintiff would

use to establish h[is] prima facie case.” George v.

Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); accord

Harris v. Trustees of Uni’v of Dist. of Colum., — F.

Supp. 3d —, 2021 WL 4399552, at *5 (D.D.C. Sept.

25, 2021).

A. Direct Evidence

The Court begins with direct evidence. Moini

largely does not point to direct evidence—most of his

arguments focus on pretext under the McDonnell

Douglas framework. See, e.g., Pl.’s MSJ at 23, 28

(discussing the “pretextual” nature of multiple parts

of the review process). But he does cite comments

that Rowe allegedly made in class. See Pl.’s Reply,

ECF No. 63 at 8. According to Moini, Rowe often

denigrated immigrants and foreigners and once said,

“we’re going to go and invade California. It’s filled

with, you know, people who shouldn’t be here.” See

Moini Dep. at 786. Moini also describes Rowe as a

“xenophobic” person who would react anytime

someone discussed foreigners coming to the United

States. Id. at 787.

To qualify as direct evidence, a statement or

remark “must itself show racial [ ] bias in the

[employment] decision.” Vatel, 627 F.3d at 1247.

Rowe’s alleged statement about California and

Moini’s description of him as xenophobic at most

show a bias against foreigners, not against a

particular race. Moini cannot support his race

discrimination claim with statements about national

origin. Accord Ndondji v. InterPark Inc., 768 F.

Supp. 2d 263, 273 (D.D.C. 2011). And even if the

Court assumes a racial animus behind those

statements, they lack “any temporal or substantive

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relationship to” the denial of tenure. Samuel u.

Metro. Police Dep’t, 258 F. Supp. 3d 27, 47 (D.D.C.

2017) (cleaned up). Moini does not try to argue

otherwise. With no nexus to the tenure denial,

Rowe’s statements “are not alone sufficient to

withstand a motion for summary judgment.”

Telesford v. Md. Provo-I Med. Serus., P.C., 204 F.

Supp. 3d 120, 128 (D.D.C. 2016) (cleaned up).

More, Moini’s arguments about Rowe—

whether it be about Rowe’s alleged statements or his

conduct elsewhere in the tenure review process—

suffer from a “significant initial hurdle.” Vatelj 627

F.3d at 1247. Rowe supported Moini’s hiring, see

Def.’s SMUF f 21, and wrote to the CCAS

Committee that he “strongly endorse [d]” Moini’s

application for tenure, Def.’s MSJ, Ex. 3D at 160.

After that committee and other reviewers decided to

deny tenure, Rowe interceded before the FSEC. He

urged that body not to put much stock in Moini’s

teaching evaluations, attesting to the clarity,

concision, and logical progression of Moini’s lectures,

which Rowe himself had observed. See Def.’s MSJ,

Ex. 3F, ECF No. 48 at 166. He also explained that

Moini’s low evaluations resulted from extenuating

circumstances, such as a questionable teaching

model for some courses, that Rowe felt had

“contributed to the low ratings of Professor Moini.”

See id. The FSEC agreed with him enough to

recommend an extension of Moini’s tenure clock

rather than an outright denial of tenure. See Def.’s

MSJ, Ex. 41 at 388.

“[I]t would be odd” for Rowe to overtly support

Moini’s tenure application in these many ways while

simultaneously trying to deny him tenure because of

his race. Vatel, 627 F.3d at 1247. Indeed, the

evidence shows that Rowe supported Moini’s tenure

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application at every turn in the process. Moini’s

direct evidence, therefore, falls flat.

B. Indirect Evidence

Because there is no direct evidence to permit

Moini to reach trial, the Court reviews his indirect

evidence. Moini offers a host of arguments that the

University’s explanation was pretextual. The Court

takes them in turn and concludes that none of them

create a genuine issue of material fact.

1. The University’s Explanation

Before those arguments, however, the Court

first considers the University’s explanation for

denying tenure—that Moini “did not demonstrate the

required excellence in teaching.” Def.’s MSJ at 48.

Recall that many of those who reviewed Moini’s

application had concerns about his teaching. The

CCAS Personnel Committee said that Moini’s

teaching—based on his below-average student

evaluation

scores—“f[ell]

well

below”

the

Committee’s expectation for “its tenured colleagues.”

Def.’s MSJ, Ex. 4G at 368. The Dean likewise had

“serious reservations about [Moini’s] teaching.” Def.’s

MSJ, Ex. 4H at 372. And the Provost said Moini

“ha[d] not demonstrated excellence. Pl.’s MSJ, Ex.

50, ECF No. 53-6 at 1140. Plenty of other reviewers,

including the then-President, echoed those concerns

when they concurred with denial of tenure to Moini.

Indeed, Moini consistently scored below

Department averages in “Overall Rating of the

Instructor” for classes taught before he submitted his

tenure application and during consideration of that

application. Often, he was well below the mean:

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Spring 2015 Fall 2015

Spring 2016

Fall 2016 Spring 2017

Semester

Fall 2014

Department

Average

4.2

4.2

4.2

4.2

4.2

4.2

3.7,3.7

2.7, 3.0

3.4,44

21,3.0

3.6, 3.6

.2.4, 3.4

Moinrs

Scores

See Def.’s MSJ at 16-18.20

The President has thus made “an adequate

evidentiary proffer” as to the University’s

justification. Figueroa v. Pompeo, 923 F.3d 1078,

1087 (D.C. Cir. 2019) (cleaned up). He has supported

that justification with evidence that the Court “may

consider

at”

summary judgment,

including

deposition testimony, supporting emails, and

University records. Id. And that evidence supports

the justification. Many individuals reviewed Moini’s

application in the tenure and grievance process.

Those who supported denial of tenure consistently

highlighted his deficiencies as a teacher, a fact

supported by the student evaluations.

A jury presented with evidence of such consensus

could reasonably find that the University’s action

“was motivated by” Moini’s failure to meet the

teaching standard. Id.

The President has thus made “an adequate

evidentiary proffer” as to the University’s

justification. Figueroa v. Pompeo, 923 F.3d 1078,

1087 (D.C. Cir. 2019) (cleaned up). He has supported

that justification with evidence that the Court “may

consider

at”

summary judgment,

including

deposition testimony, supporting emails, and

20 This trend continued after formal denial of Moini’s tenure

application. Over his final four semesters, the Department’s

teachers again averaged a score of 4.2 each semester. But Moini

scored 3.2, 3.9, 2.2, and 3.1. See Def.’s MSJ at 19.

A-62

University records. Id. And that evidence supports

the justification. Many individuals reviewed Moini’s

application in the tenure and grievance process.

Those who supported denial of tenure consistently

highlighted his deficiencies as a teacher, a fact

supported by the student evaluations.

A jury presented with evidence of such

consensus could reasonably find that the

University’s action “was motivated by” Moini’s

failure to meet the teaching standard. Id. (cleaned

up). Not only is that a nondiscriminatory reason, it is

“facially credible in light of the proffered evidence.”

Id. at 1088 (cleaned up).

2. The University’s Explanation Was Not

Pretextual

The Court turns then to the “central issue”:

Whether Moini has “produced evidence sufficient for

a reasonable jury to find that the [University’s]

stated reason was not the actual reason and that the

[University] intentionally discriminated against”

Moini “based on his race.” Brady, 520 F.3d at 495. To

support his claim, Moini mainly argues that the

University failed to follow its own procedures and

gave favorable treatment to other professors and

tenure candidates. He also makes other, less

developed, arguments.

None of his arguments support an inference of

pretext.

a. Moini’s Prime Facie Case

For starters, Moini’s prima facie case suffers

from a serious flaw. Recall that he must be “a

member of a racial minority” to have a § 1981 claim.

Wilson, 417 F. Supp. 3d at 91. To make that

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showing, Moini must identify “ethnic characteristics”

specific to that racial minority. Saint Francis Coll. v.

Al-Khazraji, 481 U.S. 604, 613 (1987).

Throughout this case, Moini has said that he

is Middle Eastern. See Pl.’s MSJ at 4, Moini Dep. at

821. But Moini provides little to no evidence about

whether he has the kind of characteristics common to

Middle Easterners. When asked to identify those

attributes at his deposition, Moini said Middle

Easterners “eat flat bread,” “are sensitive,” and

“joke.” Moini Dep. at 821. That is all. He then

suggested that defense counsel “[g]o talk to a

psychologist” or “a sociologist” about those

characteristics. Id. And Moini denoted his ethnicity

as “White” in a 2019 EEOC complaint. See Def.’s

MSJ, Ex. 35, ECF No. 48 at 1051. So Moini not only

fails to discuss what makes him Middle Eastern, he

also has previously declined to identify that as his

race. This is not enough.

To be clear, the Court does not determine now

whether Moini has stated a prima facie case. See

Brady, 520 F.3d at 494. But to deny summary

judgment to the President, the Court must conclude

that a jury could “infer . . . discrimination from all

the evidence,” including the “prima facie case.”

Nurriddin v. Bolden, 818 F.3d 751, 758-59 (D.C. Cir.

2016). Here, that evidence shows no attempt by

Moini to define his race beyond some off-the-cuff

comments about characteristics shared by people of

many races. A jury considering “the total

circumstances of the case” would confront the same

evidence. Hamilton v. Geithner, 666 F.3d 1344, 1351

(D.C. Cir. 2012) (cleaned up). The Court then must

also consider it.

b. Alleged Failure to Follow Established

Procedures

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Moini devotes much of his briefs to argue that

various parts of the reviewing process failed to follow

the University’s “established procedures” for tenure.

Brady, 520 F.3d at 495 & n.3. To be sure, an

employer’s failure to follow established procedures

can give rise to pretext, but that failure “alone, may

not be sufficient to support the conclusion that [the

employer’s] explanation for the challenged action is

pretextual.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d

1180, 1183 (D.C. Cir. 1996) (cleaned up). More,

neither the Court nor a jury is a “super-personnel

department” able to reevaluate the merits of a

personnel decision. Barbour v. Browner, 181 F.3d

1342, 1346 (D.C. Cir. 1999) (cleaned up). Because of

that limited review, the Court “may not second-guess

an

employer’s

personnel

decision

absent

demonstrably discriminatory motive.” Hairston v.

Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014)

(cleaned up).

Moini presents insufficient evidence to show

that the University had certain “established

procedures” for tenure. The Court discusses

separately the procedures from before his tenure

application and those from during review of that

application.

i. Pre-Application Procedures

Moini argues that the University should have

provided him a mid-tenure review. See Pl.’s MSJ at

9—10. But none of the cited policies required such a

review. The Department’s Constitution directed a

committee “to evaluate annually tenure-track faculty

and inform them of their progress toward tenure.”

Def.’s MSJ, Ex. 3A, ECF No. 48 at 151. The key word

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there is “annually.” Moini received those annual

reports. See Def.’s MSJ, Exs. 17—19. As for the

College’s 2013 Bylaws, they allowed departments to

“establish their own procedures” for evaluating the

progress of candidates for tenure. Def.’s MSJ, Ex. 4A,

ECF No. 48 at 194.

Some policies apparently did require a mid­

tenure review, at least for some -candidates. The

June 2015 update to the Faculty Code required each

school and department to “establish and publish

written procedures to provide reviews to guide

faculty members concerning progress toward

Faculty Code § IV(C)(3). The College

tenure.”

responded later that year with procedures for

reviews of every candidate “at the approximate mid­

point of the period leading to their tenure review[.]”

Pl.’s MSJ, Ex. 64, ECF No. 53-6 at 1185.

Moini pounces on the University’s admission

that “a mid-tenure review of [Moini] was not done[.]”

Resp. to Pl.’s Rev’d First Req. for Adm’n, Pl.’s MSJ,

Ex. 43, ECF No. 53-6 at 741. Unrebutted evidence

shows, however, that relevant policies did not

require a mid-tenure review for him. Before the

College released the guidelines, a professor clarified

that “since [Moini was] on a fast track,” he “[would]

not have an official” mid-tenure review. Pl.’s MSJ,

Ex. 69, ECF No. 53-6 at 1201. An email from Weedn

in April 2016 reiterated the same policy. See Pl.’s

MSJ, Ex. 68, ECF No. 53-6 at 1199 (“3 year fast

tracks usually do not have a mid-tenure review.”).

Moini provides no evidence of any other policy for

fast-track tenure

applicants

for mid-tenure

reviews.21

21 And even if the 2015 College procedures required mid-tenure

reviews for fast-track applicants, the email evidence shows a

norm under which the College did not give such reviews to fast-

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Beyond Moini’s arguments about formal mid­

tenure reviews, he also says more generally that

nobody from the University produced comments

“about [his] teaching that [ ] discussed his progress

toward tenure.” Pl.’s MSJ at 18. The evidence says

otherwise. One annual review identified issues with

his teaching. See Def.’s MSJ, Ex. 18 at 916

(“Students’ evaluations of Moini’s teaching are a

mixed bag.”). And recall that Weedn informed Moini

more than once of negative student comments about

his teaching. See Weedn Dep. at 681. Moini himself

knew about those negative evaluations and admitted

reading them. See Def.’s MSJ, Ex. 18 at 907 (“My

teaching evaluations show mixed results.”).

Finally, despite the policy against a formal

mid-tenure review, Weedn testified that he gave

Moini an “informal” one. See Decl. of Victor Weedn f

9, Pl.’s MSJ, Ex. 65, ECF No. 53-6 at 1191. During

that conversation, Weedn discussed Moini’s

“teaching, publications, and grants.” Id. So the

evidence rebuts Moini’s assertion that no one

discussed with him the relationship between his

teaching and his progress towards tenure.

In sum, the totality of the evidence shows that

the University violated no policies when it failed to

conduct a mid-tenure review of Moini. The policies

either did not require one at all or did not apply to a

professor like Moini on a fast track to tenure.

ii. Procedures During Review of Application

Next, consider Moini’s arguments about the

review of his tenure application. Some background is

track applicants. That the College followed that norm does not

support pretext even if it technically violated the procedures.

See Fischbach, 86 F.3d at 1183.

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required. In mid-2016—before Moini submitted his

tenure application—the Provost instituted guidelines

on what each application should include. See Def.’s

Reply, Ex. 37A, ECF No. 58 at 48-55. Under

“Teaching Effectiveness,” those Provost Guidelines

listed internal peer reviews and student feedback. Id.

at 54. For the former, the Provost “encouraged”

departments to provide reviews from a peer wht) had

observed the candidate’s teaching. Id. For the latter,

the Provost listed “both scores and comments,

provided by the department.” Id. In a footnote, the

Provost said anyone seeking more details should

reference other guidelines from the University’s

Teaching and Learning Center. See id. at 53.

Issued in 2013, those guidelines (TLC

Guidelines) differed slightly from the Provost’s. See

Def.’s Reply, Ex. 37B, ECF No. 58 at 57-60. First,

they explicitly required internal peer reviews. See id.

at 58 (“(Required) Internal Peer Reviews.”). Second,

they directed departments, when compiling student

feedback, to “includ[e] comparisons with similar

courses (and with similar enrollments) taught by

others.” Id. Third, they recommended student

letters, including ones supplied by the candidate and

others sought “by [the] department/school.” Id.

Moini relies heavily on the TLC Guidelines.

Based on those provisions, he faults the University

for (1) not providing an internal peer review, (2) not

comparing his student evaluations with those of

Rowe, (3) not providing an external peer review, and

(4) removing from his application student letters

supplied by him. See Pl.’s MSJ at 21—22.

These arguments founder on unrebutted

testimony from the Provost and Rowe. The Provost

testified that the Teaching and Learning Center “had

authority to recommend components for tenure

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•

dossiers, but no authority to mandate items to be

included.” Supp. Decl. of Forrest Maltzman f 8,

Def.’s Reply, Ex. 37 (Maltzman Supp. Decl.), ECF

No. 58.22 Rowe likewise testified that the TLC

Guidelines

were

“non-binding”

and

that

“administrators had discretion to determine how

best to move a tenure and promotion dossier

forward.” Supp. Decl. of Walter Rowe 1 5, Def.’s

Reply, Ex. 38, ECF No. 58.23 Moini never suggests

otherwise, either on the mandatory nature of the

TLC Guidelines or whether the College followed

them as a general practice.

So too for the Provost Guidelines. The Provost

himself testified that he never intended to bind the

University to every part of those guidelines. See

Maltzman Supp. Decl. f 5. More important, he

testified that the University itself did not strictly

follow them. He explained that the University had

“approved tenure in cases where the application

dossier did not comply with many requirements in

the Guidelines.” Id. Moini again does not refute that

statement, forcing a reasonable factfinder to

conclude that the Provost Guidelines were not

“established policies and procedures.”

This brings us to the University’s use of

student evaluations. Moini says that the school

“solely relied on student evaluations” from his

graduate seminar and refused to rely on any other

objective metrics used to measure teaching

excellence. Pl.’s MSJ at 7.

The Court cannot agree with this factual

characterization. Every reviewer to deny tenure cited

Moini’s below-average student evaluations, which

22 Available at pages 40-46.

23 Available at pages 69-70.

A-69

covered classes beyond the graduate seminar.

Remember, he taught more than just that one

course. To be sure, the reviewers excerpted

comments from the reviews of that course. But

nothing

suggests

that

reviewers

dismissed

evaluations from other courses (which were also

mostly below Department averages, see Def.’s MSJ at

16-19). So the Court finds little support for Moini’s

contention that reviewers relied “solely” on

evaluations from that one course.

As to possible pretext, Moini provides no

established policy or procedure prohibiting the

University from relying on student evaluations.24

The College Bylaws that Moini cites for other

arguments say that judgments about academic

excellence “cannot be reduced to a quantitative

formula.” Def.’s SMUF f 32. Although an imperfect

tool, student evaluations are a key part of that

judgment. Teaching is about instruction of students.

A student’s complaints about a teacher’s instruction

therefore go directly to the heart of teaching

excellence.

No reasonable jury could fault the University

for relying on them to analyze teaching excellence.

And in any event, a jury is not a “super-personnel

department” that can revisit that decision, Barbour,

181 F.3d at 1346 (cleaned up), “absent demonstrably

discriminatory motive,” Hairston, 773 F.3d at 272

24 At one point, Moini cites a University document where the

FSEC Chair asked for information beyond student evaluations

to evaluate teaching. See Pl.’s MSJ, Ex. 72, ECF No. 53-6 at

1208. Moini portrays this document as University or College

policy, but it lists only “[r]ecommendations” and its author

testified that he was “merely suggesting]” what types of

information could be helpful. Dep. of Paul Duff, Def.’s MSJ, Ex.

11, ECF No. 48 at 708. That is hardly an “established” policy.

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(cleaned up). Courts are especially wary of secondguessing personnel decisions in the academic

context. See Harris, 2021 WL 439952, at *10. The

mere use of teaching evaluations to judge teaching

excellence does not point to an illicit motive,

particularly when Moini’s scores were consistently

below average, a fact noticed and cited by almost

every reviewer.25 Cf. id. at *11 (rejecting retaliation

claim brought by professor regarding dean’s low

evaluations where dean consistently ranked

subordinates harshly).

Moini identifies one anomaly that requires

explanation. Although he submitted letters from

former students with his application, the

Department asked him to remove those letters. See

Def.’s SMUF f 145. The Department instead asked

former students to submit their letters directly

without going through Moini. See id. When two such

25 Relying again on the TLC guidelines, Moini argues that the

reviewers should have compared his student evaluations with

Rowe’s for the graduate seminar. See Pl.’s MSJ at 21. He thinks

that had the reviewers done so, they would have seen that

Moini got the same scores as Rowe and then would have

dismissed Moini’s negative evaluations as a symptom of the

course structure, not his teaching. The actual evaluations do

not support his assertions. True, Rowe received ratings of 2.9 in

two semesters when he taught the graduate seminar by

himself. See Pl.’s MSJ, Ex. 95, ECF No. 53-6 at 1352; id. Ex. 96,

ECF No. 53-6 at 1355. Those scores mirror what Moini received

in the same class. But once students could evaluate teachers

separately, Rowe received a noticeably higher score than Moini.

In the graduate seminar, Moini received a 2.1 rating, compared

to Rowe’s 3.4, in Spring 2016. See Def.’s SMUF 203. And in a

different class co-taught that semester by the pair, Moini got a

3.0 rating and Rowe got a 4.7. See id. From this and Moini’s

below-average scores in almost every other course, the

University could reasonably conclude that Rowe was a better

teacher than Moini.

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letters came in, Rowe decided not to submit them.

See Dep. of Walter Rowe, Def.’s MSJ, Ex. 9 (Rowe

Dep.), ECF No. 48 at 640. For Moini, this oversight

shows an intentional effort by the Department to

withhold “any teaching related evidence that could

have helped Moini to showcase his teaching.” Pl.’s

MSJ at 23.

Recall again that Moini has pointed to no

established policies or procedures on the University’s

use of letters from former students. Even if he had,

however, the evidence shows no discriminatory

motive. The removal of student letters was so that

the University could see “independent and candid”

reviews from Moini’s former students, not ones that

he had pre-screened. Def.’s SMUF f 145. Rowe also

testified that submitting only two letters “would

highlight the problems with [Moini’s] teaching.”

Rowe Dep. at 640. Given Moini’s decades of

experience as an educator, Rowe was likely correct

that so few letters might cast a negative light on

Moini rather than a positive one. And as discussed,

these claims of pretext ignore Rowe’s ultimate and

unflagging support of Moini’s application for tenure.

Finally, Moini points out that one of the reviewers on

the CCAS Committee “had an incident of racism”

and did not recuse herself from review of his tenure

application. Pl.’s MSJ at 26. That allegedly racist

incident, however, occurred in 2018, one year after

the CCAS Committee voted to deny Moini tenure.

See generally Pl.’s Reply, Ex. SI, ECF No. 63-2 at 5—

6. So even under Moini’s version of the University’s

procedures, the reviewer need not have recused

herself based on an incident that had yet to

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happen.26 And because the incident happened after

the decision to deny tenure to Moini, it has no

obvious connection to that decision.

c. Alleged Comparators

Now for Moini’s alleged comparators.

“Evidence of an employer’s more favorable treatment

to similarly situated employees without the

plaintiffs protected characteristic may indicate

discriminatory animus.” Breiterman v. U.S. Capitol

Police, 15 F.4th 1166, 1174 (D.C. Cir. 2021). But for

another employee to be similarly situated, a plaintiff

must show “that all of the relevant aspects of his

employment situation were nearly identical to those

of the other employee.” Burley v. Nat’l Passenger

Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)

(cleaned up).

Moini points to Rowe’s promotion to

Department Chair.27 According to Moini, Rowe got a

promotion even though he “received similarly poor

26 True, the presence of this reviewer on the Committee could

support Moini’s assertions of pretext. But several independent

levels of review occurred after the CCAS Committee. All of

them cited Moini’s teaching inadequacies as the reason to deny

tenure. And there is no evidence that this allegedly biased

reviewer had any contact with later reviewers. Given the lack of

contact and that later reviewers agreed with the CCAS

Committee about Moini’s teaching, the evidence of one

potentially biased early reviewer does not render the

University’s explanation pretextual. Accord Parker v. Nat’l R.R.

Passenger Corp., 214 F. Supp. 3d 19, 27 (D.D.C. 2016) (granting

summary judgment when, despite contact between biased

supervisor and higher-level reviewer, the later review did not

depend on the supervisor’s statements).

27 Indeed, Moini claims that the University “rewarded” Rowe

with the promotion for his efforts in discriminating against

Moini. See Pl.’s MSJ at 23.

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student evaluations” in the graduate seminar.

Compl. 1 57. That disparate treatment shows, he

says, discriminatory animus.

But the promotion criteria for the two

positions were very different. A professor seeking

tenure must show teaching excellence. The criteria

for a Department Chair include no similar standard.

See Def.’s SMUF If 23. In fact, the position of tenured

professor and Department Chair have little

relationship at all. One could even become Chair

without being tenured. See Weedn Dep. at 660

(noting that Rowe had once been Department Chair

despite not having tenure). Rowe and Moini thus

were subject to different performance standards,

making the “relevant aspects” of their employment

situations not nearly identical. Burley, 801 F.3d at

301; see Coats v. DeVos, 232 F. Supp. 3d 81, 95

(D.D.C. 2017) (rejecting potential comparator

because he was subject to lower performance

standards than the plaintiff).

For the same reason, one of Moini’s other

comparators is inadequate. Moini points to Dr.

Andrew Smith, a non-Middle Eastern faculty

member who, despite poor student evaluations,

received tenure in 2014. See Pl.’s MSJ at 45—47. The

year is all that matters. Before 2015, the University

required merely “professional competence” in

teaching for a candidate to receive tenure. See Def.’s

MSJ, Ex. 4C § IV(C)(1), ECF No. 48 at 241. So

Smith’s elevation to tenure occurred under a

different standard than the one applicable to Moini

two years later. Smith is therefore not an

appropriate comparator either.

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Closer to the mark is Dr. Antwan Jones,

Moini’s other proposed comparator.28 See Pl.’s MSJ

at 43-45. Jones received tenure in 2016 despite

below-average student evaluations. Based on the

evidence, Jones had an average score of 3.43, lower

than the Department-wide average of 4.16.29 In

contrast, Moini had a pre-application average score

of 3.21. See Def.’s MSJ at 16-17.

Despite these somewhat similar scores, the

evidence confirms that Jones is not a valid

comparator to Moini. For one thing, Jones taught in

a different department than Moini. See Def.’s Reply,

Ex. 37C, ECF No. 58 at 62. Jones therefore had a

different set of supervisors review his tenure

application at the departmental level. See Rassa v.

Amtrak, 850 F. App’x 1, 3 (D.C. Cir. 2021) (finding

another employee not similarly situated to the

plaintiff in part because the two “worked under

different supervisors”); Gulley v. District of

Columbia, 474 F. Supp. 3d 154, 167 (D.D.C. 2020)

(same). More, although Jones’s student evaluations

mirror Moini’s, he taught more courses and more

students than Moini did. The two thus had “different

roles,” rendering them inapt comparators. Burley,

801 F.3d at 301.

28 Moini first mentions Smith and Jones in his motion for

summary judgment, which is likely impermissible. Accord

Mosleh v. Howard Univ., No. 19-cv-0339 (CJN), 2022 WL

898860, at *7 (D.D.C. Mar. 28, 2022). But the Court analyzes

the new comparators anyway.

29 For Jones’s average scores, the Court uses the numbers

provided in Moini’s brief, see Pl.’s MSJ at 44—45, even though

the record corroborates only some of them. One of Moini’s

exhibits includes some of Jones’s scores, but not all of them. See

Pl.’s MSJ, Ex. 84, ECF No. 53-6 at 1237-1246.

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Finally, reviewers of Jones’s application noted

that his evaluations showed an “upward trajectory”

in his teaching. Def.’s MSJ, Ex. 37C at 63; see also

Pl.’s MSJ, Ex. 86, ECF No. 53-6 at 1251. Indeed, the

numbers provided by Moini show the same trend.

Jones averaged a 3.3 rating over his first eight

evaluations, and a 3.55 rating over his second eight

evaluations. See Pl.’s MSJ at 44—45. In contrast,

Moini’s scores were relatively flat. Over the eight

evaluations preceding his tenure application, Moini

received a 3.275 average rating for the first four and

a 3.225 for the second four. See Def.’s MSJ at 16-17.

And after receiving two ratings of 3.7 in his initial

two classes, Moini received one rating above that

score before applying for tenure. See Def.’s MSJ at 17

(showing a 4.4 rating for one class in Fall 2015). As

other courts have held, those signs of improvement

are a relevant distinction between comparators. See

Coats, 232 F. Supp. 3d at 95; Anakor v. Archuleta, 79

F. Supp. 3d 257, 263-64 (D.D.C. 2015), aff’d, 2015

WL 5210455 (D.C. Cir. Sept. 3, 2015).

Thus, none of Moini’s proffered comparators

present employment situations that were “nearly

identical” to his. Burley, 801 F.3d at 301. He

therefore fails to show pretext based on those

comparators.

d. Other Arguments on Pretext

Now consider Moini’s grab bag of other

arguments. Moini first recites several demographic

statistics about the faculty and students in the

Department. See Pl.’s MSJ at 11 (“[F]ull-time faculty

in the Department currently consists of all

Caucasian men.”); Pl.’s Reply at 6, ECF No. 63

(“[Ejxcept for a strong Jewish minority, the

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percentages of other minorities were significantly

below the national averages.”). “[W]ithout more,” this

kind of demographic information “does not support

an inference of discrimination.” Bolden u. Clinton,

847 F. Supp. 2d 28, 35 (D.D.C. 2012).

So too for the University’s alleged admission of

a racist climate on campus. In 2018, the President

sent a campus-wide email “about the need to try to

improve race relations on campus.” Def.’s SMUF If

271. The email referred to concerns by minority

students and faculty about the University

community’s lack of inclusivity. See id. Put simply,

an email sent after the tenure denial about general

racism has little to do with Moini’s tenure

application. “[I]t is inappropriate to rely on

extrapolation

from

general

evidence

of

discriminatory episodes when there is available

specific evidence directly relevant to the particular

plaintiff.” Williams v. Boorstin, 663 F.2d 109, 115

n.38 (D.C. Cir. 1980).

Lastly, Moini says that he received “three

merit raises.” Pl.’s MSJ at 23. Such indicia of positive

performance might support an inference of pretext.

See, e.g., George, 407 F.3d at 414 (finding employer’s

justification to be pretextual in part because

employer gave positive performance reviews to the

plaintiff). But Moini gives no evidence about these

raises, including their size or timing. He bears the

burden to make that evidentiary showing. See

Jackson v. Finnegan, Henderson, Farabow, Garrett &

Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). The

Court is not required “to sift through hundreds of

pages of’ the record “to make [its] own analysis and

determination of what may, or may not, be a genuine

issue of material disputed fact.” Twist v. Meese, 854

F.2d 1421, 1425 (D.C. Cir. 1988).

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4c 4c 4c

In sum, Moini has not shown evidence to

support an inference of pretext or discrimination by

the University. Beyond the flaw in his prima facie

case, his proffered comparators were not similarly

situated to him. And despite his consistent

entreaties, Moini nowhere suggests a policy or

procedure that the University violated during the

tenure application process. He thus fails to create an

inference that the University’s reason for denying

tenure was pretextual. The Court will grant

summary judgment to the President on Count III.

IV. CONTRACTUAL CLAIMS

Next up are Moini’s breach of contract claims.

He largely repackages his discrimination claim,

arguing that the University violated various

contractual obligations before he applied for tenure,

during review of his application, and during the

grievance process.

Breach of contract under D.C. law requires (1)

a valid contract; (2) an obligation or duty arising out

of the contract; (3) a breach of that duty; and (4)

damages caused by the breach. See Tsintolas Realty

Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). The

statute of limitations for these claims is three years.

See D.C. Code § 12-301(7). When contract claims

arise in the academic context, however, the Court

“generally give[s] deference to the discretion

exercised by university officials.” Allworth u. Howard

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

A. Claims Related to Pre-Application Period

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The Court starts with Moini’s pre-application

claims, which are barred by the statute of

limitations. Much like his discrimination claims,

Moini argues that the University breached its

contract by not giving him a mid-tenure review and

not informing him of his teaching deficiencies. See

PL’s MSJ at 36 (referencing discussion of these facts

in section on discrimination claims). For statute-oflimitations purposes, those claims accrue when

Moini’s review was due and not provided, not when

the University formally denied tenure. See Wright u.

Howard Univ., 60 A.3d 749, 752-53 (D.C. 2013).

Recall that the mid-tenure guidelines

suggested mid-tenure review “at the approximate

mid-point of the period leading to [ ] tenure

review[.]”30Pl.’s MSJ, Ex. 64 at 1185. Moini started

on January 1, 2014, with a three-and-a-half-year

tenure clock. Thus, the midpoint of his period would

be in early October 2015. That date is easily more

than three years before Moini sued in October 2019.

So any claim about a mid-tenure review is timebarred, assuming that review should have occurred,

as the policy says, at the midpoint.

In any event, all pre-application claims are

time-barred. Moini argues in essence that the lack of

pre-application feedback prevented him from

correcting deficiencies in his teaching performance

and taking timely steps to meet the tenure criteria.

See Wright, 60 A.3d at 752-53; see also Compl. 75

(asserting that University policies “recommend” pre­

application feedback “with sufficient time for the

Processor] to make adjustments or corrections to

30 The Court assumes for now that those guidelines are

contractually binding on the parties.

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address those concerns before a decision is made in

the formal tenure review process”).

That feedback, however, became irrelevant

once he applied. So his pre-application claims,

regardless of exact midpoints or other timetables,

accrued at the latest when he applied for tenure. See

Mawakana v. Bd. of Trustees of the Univ. of the Dist.

of Colum., 926 F.3d 859, 869 (D.C. Cir. 2019)

(holding that claims about university’s obligations

during a particular academic year accrued on the

final day of that academic year). He did" so in

September 2016—more than three years before

suing. So no matter when exactly any pre-application

claims accrued, they all fall outside the three-year

limitations period, and are thus time-barred under

D.C. law.

B. Claims Related to Review of Application

Next, consider Moini’s claims about the review

of his application. He says the Provost “both during

the tenure denial and grievance process” should have

considered various extenuating circumstances, like

the relative newness of the graduate seminar and

the consistency between Moini’s and Rowe’s

evaluations. Pl.’s MSJ at 40. But Moini suggests no

contractual breach there. He points to no University

policy requiring consideration of factors beyond the

Faculty Code’s criteria of “excellence in scholarship,

teaching, and engagement in service.” Faculty Code §

IV(C)(1).

Moini’s Complaint points to the various

guidelines on tenure applications. See Compl. If 77.

Recall that both the TLC Guidelines and the Provost

Guidelines discuss comparing an applicant’s student

evaluations with other courses and professors. Moini

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suggests that the Provost should have considered the

consistency between Moini’s and Rowe’s evaluations.

See Pl.’s MSJ at 40.

But no evidence shows that those guidelines

are contractually binding on the parties. By his

signature on the appointment letter, Moini agreed as

part of his contract to the Faculty Code and the

Faculty Handbook “and any subsequent changes or

amendments” to them. See Def.’s MSJ, Ex. 22 at 950.

Recall that the evidence shows that the University

never intended those tenure guidelines to be part of

the Faculty Code or the Faculty Handbook.31 See

Maltzman Supp. Decl.

5, 8. Moini’s complaints in

this area thus reduce to an attempt to re-do the

tenure and grievance process. That effort does not

belong here: Neither the Court nor a jury acts as a

“super-personnel department.” Barbour, 181 F.3d at

1346 (cleaned up).

So too for Moini’s contention that the Provost

did not follow the University’s definition of

“compelling reason.” See Pl.’s MSJ at 37; Compl. f

78. The Faculty Code lists as compelling reasons

“[failure to conform to tenured published tenure or

promotion policies.” Faculty Code § IV(E)(l)(ii).

Moini’s own inability to, in the judgment of the

Provost, show excellence in teaching was a failure to

meet published tenure criteria. The Provost said as

much during his tenure review, see Pl.’s MSJ, Ex. 50,

31 Moini says otherwise. He asserts that the Code prohibits

“[fjailure to conform to published tenure or promotion policies,

procedures, and guidelines.” Pl.’s MSJ at 35. That clause does

appear in the Code. But not as a proscription against the

University. It is instead a basis on which higher-level tenure

reviewers may “independently concur or nonconcur” with a

tenure recommendation. Faculty Code § IV(E)(1). So Moini

misstates the Code’s requirements as to tenure policies.

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and his grievance review, see Def.’s MSJ, Ex. 40.

Moini’s suggestions to the contrary simply ignore the

Provost’s written opinions on the subject.

Moini includes in his brief two other

contractual claims, both involving the Department’s

request to extend his tenure clock. See Pl.’s MSJ at

36-37. Neither of these claims appeared in Moini’s

Complaint. The Court rejects them on that basis as

untimely. See Wilson, 417 F. Supp. 3d at 97.

C. Claims Related to Grievance Process

Moini makes two contractual claims related to

the grievance process.

First, he alleges that the Vice Provost had an

improper ex parte communication with the Hearing

Committee. See Pl.’s MSJ at 41. This allegation

implicates the Faculty Code, which requires parties

to “avoid ex parte communications bearing On the

substance of the dispute.” Procs. for Impl. of the

Faculty Code § (E) (b)(7). The relevant facts are

these: Moini first met with the Committee by

himself—ex parte. See Def.’s SMUF Tj 180. The

Committee later realized that they should have held

“a single hearing,” with both sides present. Pl.’s MSJ,

Ex. 83, ECF No. 53-6 at 1236. To facilitate that

hearing, the Committee emailed the recording of its

Moini-only proceeding to the Vice Provost. See Pl.’s

MSJ, Ex. 90, ECF No. 53-6 at 1330.

The parties’ factual recitations diverge here.

Moini says that the Vice Provost responded to that

email on the same day, allegedly engaging in secret

communications. See Pl.’s MSJ at 42. The evidence

contains no such emails. The only emails between

the Vice Provost and the Committee occurred two

months later, when the Vice Provost discussed

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confidentiality of Moini’s tenure reviewers. See Def.’s

MSJ, Ex. 4N, ECF No. 48 at 438. The emails discuss

Moini’s grievance process, but nowhere does the Vice

Provost advocate for the Committee to find in the

University’s favor. He is concerned only with the

privacy interests of reviewers who submitted

materials for Moini’s tenure application. See id. Such

conversations are not about the “substance of the

dispute,” and therefore do not violate the Faculty

Code. Procs. for Impl. of the Faculty Code § (E)(b)(7)

(emphasis added).

Second, Moini says the University denied him

the right to “inspect and copy” before his grievance

hearing “all relevant documents in the control of the

other party and not privileged.” Procs. for Impl. of

the Faculty Code § 4(c)(3). He says that the

University should have provided him with all of

Rowe’s student evaluations. See Pl.’s MSJ at 43.

Moini has a point, but the evidence shows that

he either abandoned his contractual right or did not

pursue it properly. He asked the Hearing Committee

Chair to “ask the administration” to provide all of

Rowe’s past student evaluations. Def.’s MSJ, Ex. 29,

ECF No. 48 at 998. The Chair advised him that such

new information might not add much to Moini’s case.

See id. Nowhere did the Chair imply or suggest that

Moini could not request or see those evaluations. He

suggested only that Moini might not need them.

Moini agreed, deciding (incorrectly) from this

response that “the committee had already decided in

[his] favor.” Moini Dep. at 814. So he “really d[id]n’t

need, therefore [,] more information.” Id.

Based on this evidence—and Moini suggests

no other evidence—Moini relinquished the right to

inspect and copy all relevant documents. Part of the

problem is that he made his request of the Hearing

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Committee, not of the University, who was “the other

party” in the proceeding. See Procs, for Impl. of the

Faculty Code § 4(c)(3); see also id. § 4(a)(2) (“[A]

grievance may only be maintained against the

university for official acts.”) (emphasis added). The

University therefore never blocked his access.

In sum, Moini has not created a factual issue

as to the University’s contractual obligations. Some

of his claims are barred by the statute of limitations

and others rely on noncontractual documents. Still

others show that the University did not violate its

contractual obligations. Based on this evidence, the

Court holds that no reasonable jury could find that

the University acted arbitrarily and capriciously,

breached a contract, or violated the implied

contractual covenant of good faith and fair dealing.

The Court will therefore grant summary judgment to

the President on Counts II, III, and IV.

V. CONCLUSION

Moini may be right that the University put

inordinate weight on student evaluations. And

perhaps the classes he taught were particularly

susceptible to harsh evaluations. But the University,

like all employers, has wide latitude in how it

evaluates and promotes its employees. Moini has

failed to undermine the University’s evidence that it

did not act discriminatorily in its tenure decision,

and that is what matters here. The Court will grant

the President’s motion for summary judgment and

will deny Moini’s cross-motion. A separate Order will

issue.

Dated: May 13, 2022

TREVOR N. McFADDEN,

U.S.D.J.

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