United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2019 Decided June 14, 2019

No. 18-7059

KEMIT MAWAKANA,

APPELLANT

v.

BOARD OF TRUSTEES OF THE 

UNIVERSITY OF THE DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-02069)

Richard A. Salzman argued the cause and filed the briefs 

for the appellant.

Jason R. Waters argued the cause for the appellee. Yoora 

Pak, Elisabeth L. Shu and Robert B. Wallace were with him on 

brief.

Before: HENDERSON, ROGERS and PILLARD, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: Law 

professor Kemit Mawakana was denied tenure and terminated 

by his employer, the University of the District of Columbia. He 

sued the University’s Board of Trustees, claiming the 

University discriminated against him based on race and 

violated both the terms and spirit of its contract with him. The 

district court granted the University’s motion for summary 

judgment as to each count of Mawakana’s complaint. 

Mawakana appealed as to three counts. We now reverse as to 

those counts.

I. BACKGROUND

In 2006, Mawakana, 1a black male, was hired by the 

University of the District of Columbia (“University”) to serve 

as a law professor at the David A. Clarke School of Law (“Law 

School”). Pursuant to his initial employment contract, 

Mawakana was hired as an Assistant Professor for a three-year 

period. In 2009, Mawakana’s employment contract was 

renewed and in 2010 he was promoted to Associate Professor. 

In July 2011, Mawakana applied for tenure. There is no record 

evidence that Mawakana heard anything about his tenure 

application during the 2011-2012 academic year. In early fall 

2012, he was invited to and attended a meeting of the faculty 

subcommittee assigned to review his application. At the 

meeting the subcommittee assured him that his application was 

in good shape. A short time later, however, Mawakana attended 

another subcommittee meeting at which the subcommittee 

informed him that it had some concerns about his scholarship. 

In November 2012, Mawakana was invited to and attended a 

meeting with Law School Dean Katherine “Shelley” Broderick 

(Broderick), and faculty subcommittee chairman, John 

Brittain. At the meeting they both suggested that he withdraw 

 

1 Mawakana was known as Samuel Jefferson before changing 

his name in 2010.
3

his tenure application. Mawakana refused. In February 2013, 

the subcommittee issued its assessment of Mawakana’s tenure 

application, concluding that his scholarship was not worthy of 

tenure and recommending that tenure be denied. The full 

faculty evaluation and tenure committee reviewed and adopted 

the subcommittee’s report. Broderick then reviewed and 

endorsed the recommendation of the full faculty evaluation and 

tenure committee. University Provost Ken Bain subsequently 

reviewed and adopted the recommendation of the full faculty 

evaluation and tenure committee and Broderick. Finally, 

University President James Earl Lyons upheld the 

recommendation of Provost Bain. On May 1, 2013, Mawakana 

received notice that he had been denied tenure and that his 

employment was to terminate effective August 15, 2013.

Believing he was denied tenure because of his race and that 

the University had violated a contractual obligation to timely 

notify him of concerns regarding his scholarship, Mawakana 

sued the University Board of Trustees in the Superior Court for 

the District of Columbia in October 2014.

2 He alleged 

statutory race-based discrimination claims and contract 

claims.3In March 2017, after removing the case to federal 

 

2 A race discrimination claim against the University brought by 

another black law professor who had been denied tenure was pending 

before this Court at the time. See Brown v. Sessoms, 774 F.3d 1016 

(D.C. Cir. 2014). We ultimately reversed the district court’s 

dismissal of that professor’s claim, id. at 1025, after which the parties 

reached a settlement agreement and the professor was reinstated.

3 Count I of the complaint alleged race discrimination in 

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 

2000e et seq., and the District of Columbia Human Rights Act, D.C. 

Code §§ 2-1401.1–2-1404.04. Count II alleged race discrimination 

in violation of 42 U.S.C. §§ 1981 and 1983. Count III alleged breach 

of contract. Count IV alleged breach of an implied covenant of good 

faith and fair dealing.
4

district court and moving unsuccessfully to dismiss, the 

University then moved for summary judgment. In March 2018, 

the district court granted the motion and entered judgment for 

the University. Mawakana v. Bd. of Trs. of Univ. of D.C., 315 

F. Supp. 3d 189, 194 (D.D.C. 2018). The district court first held 

that the University was entitled to summary judgment on 

Mawakana’s Title VII and D.C. Human Rights Act (DCHRA) 

claims because, especially considering “the heightened 

deference accorded to academic decisions,” id. at 199

(capitalization altered), no reasonable jury could find that 

Mawakana “was denied tenure because of his race,” id. at 207–

08. The district court next held that the University was entitled 

to summary judgment on Mawakana’s 42 U.S.C. §§ 1981 and 

1983 claims. Id. at 208–09. The district court also held that 

Mawakana’s contract claims were untimely. Id. at 209–10, 212. 

Finally, it held that even if Mawakana’s contract claims were 

timely and the University had breached a contractual duty, the 

claims failed because the breach had not caused Mawakana 

damages. Id. at 210–11. Mawakana timely appealed all but the 

district court’s grant of summary judgment on the section 1981 

and section 1983 claims. We review the district court’s 

decision de novo, Allina Health Servs. v. Price, 863 F.3d 937, 

940–41 (D.C. Cir. 2017), mindful that summary judgment is 

appropriate only “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to 

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

II. ANALYSIS

A. STATUTORY CLAIMS

Both Title VII and the DCHRA make it unlawful for an 

employer “to discriminate against any individual with respect 

to his compensation, terms, conditions, or privileges of 

employment” because of the individual’s race. 42 U.S.C. 
5

§ 2000e-2(a)(1); accord D.C. Code § 2-1402.11(a)(1). An 

employee who has suffered an adverse employment action 

because of his race has been subjected to a violation of both 

statutes. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. 

Cir. 2008); Futrell v. Dep’t of Labor Fed. Credit Union, 816

A.2d 793, 802–03 (D.C. 2003) (clarifying Title VII and 

DCHRA are subject to same analysis).

1. “Academic Deference”

When the Congress passed Title VII in 1964, educational 

institutions were exempt “with respect to the employment of 

individuals to perform work connected with the educational 

activities of such institution[s].” Pub. L. No. 88-352, § 702, 78 

Stat. 253, 255. Eight years later, however, in “response to the 

widespread and compelling problem of invidious 

discrimination in educational institutions,” Univ. of Pa. v. 

EEOC (Penn), 493 U.S. 182, 190 (1990), the Congress 

amended Title VII and eliminated that exemption. Equal 

Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 3, 

86 Stat. 103, 103–04. The Congress was not persuaded by 

opponents of the amendment who “claimed that enforcement 

of Title VII would weaken institutions of higher education by 

interfering with decisions to hire and promote faculty 

members.” Penn, 493 U.S. at 190. Ever since the Congress 

“abandoned [Title VII’s] exemption for educational 

institutions” in 1972, their academic hiring has been subject to 

Title VII’s restrictions. Id.

Thirteen years after the 1972 amendment, the United 

States Supreme Court held in Regents of the University of 

Michigan v. Ewing, 474 U.S. 214 (1985), that deference to 

academia is appropriate in certain circumstances. In Ewing, a 

student sued a university for dismissing him from school 

without permitting him to retake a failed exam. Id. at 217. The 
6

student argued that he had a substantive right under the Due 

Process Clause to continued enrollment at the university free 

from arbitrary state action. Id. Relying on the First Amendment 

principle of “academic freedom” and the fact that the university 

had “acted in good faith,” the Court declined to override the 

university’s judgment that dismissal was proper. Id. at 225–26. 

“When judges are asked to review the substance of a genuinely 

academic decision, such as this one,” the Court said, “they 

should show great respect for the faculty’s professional 

judgment.” Id. at 225 (emphasis added). Granting the 

university deference, the Court held that the decision to dismiss 

the student was not “arbitrary.” Id. at 223.

Five years later, in Penn, the Supreme Court suggested 

that, notwithstanding Ewing, the normal Title VII standard 

applies to universities. In Penn, the United States Equal 

Employment Opportunity Commission sued a university to 

enforce a subpoena after the university declined to release 

confidential materials related to the tenure review process of a 

faculty member who had sued the university under Title VII. 

493 U.S. at 185–87. The Court first held that the effect of the 

1972 amendment to Title VII, discussed above, “was to expose 

tenure determinations to the same enforcement procedures 

applicable to other employment decisions.” Id. at 190. It then 

rejected the university’s attempt to invoke academic freedom 

as a legitimate ground for refusal to comply with Title VII’s 

requirements. Id. at 198 (full enforcement of Title VII does not 

infringe academic freedom because it does not “prevent[] the 

[u]niversity from using any criteria it may wish to use, except 

those—including race, sex, and national origin—that are 

proscribed under Title VII”). As a result, the Court ordered the 

university to release the materials. Id. at 201–02. Importantly 

(if unsurprisingly), the Court did not overlook Ewing. Instead, 

the Court held that its decision should not “be understood as a 

retreat from th[e] principle of respect for legitimate academic 
7

decisionmaking” set forth in Ewing. Id. at 199 (emphasis in 

original).

Consistent with Penn’s suggestion, we believe that Ewing 

and the concept of academic freedom do not entitle a university

to special deference in Title VII tenure cases. Indeed, the first 

premise of the deference afforded the university in Ewing was 

that the university had “acted in good faith.” 474 U.S. at 225. 

That premise cannot be assumed in a Title VII case, where the 

question is whether the employer acted in good faith. The 

second premise of the Court’s deference in Ewing was that the 

Court was being asked to review “the substance of a genuinely 

academic decision.” Id. That premise also cannot be assumed 

in a Title VII case, where a court is asked to evaluate the reason 

for—as opposed to the substance of—the University’s decision 

and thus whether the employer’s decision was “genuinely 

academic.” In sum, Ewing dictates that a court cannot secondguess a university’s decision to deny tenure if that decision was 

made in good faith (i.e., for genuinely academic reasons, rather 

than for an impermissible reason such as the candidate’s race). 

But a Title VII claim requires a court to evaluate whether a 

university’s decision to deny tenure was made in good faith 

(i.e., for academic reasons rather than for an impermissible 

reason such as the applicant’s race).

The ordinary Title VII claimant’s burden may be 

“especially difficult to meet when it comes to academic 

tenure,” Haynes v. Ind. Univ., 902 F.3d 724, 734 (7th Cir. 

2018), because (1) tenure decisions are informed by 

specialized, multi-factored judgments and (2) numerous 

decisionmakers are usually involved in the tenure review 

process, see id. But the burden is no more difficult to meet than 

in any other Title VII case where the employment decision at 

issue involves complex judgments and numerous 
8

decisionmakers are involved.4In other words, the Title VII 

burden is no more difficult to meet because the employer is a 

 

4 Some cases simply apply the same Title VII standard to 

faculty members as to other discrimination plaintiffs; others discuss 

Ewing and the concept of academic freedom, expressing solicitude 

for academic institutions’ faculty employment decisions. Compare

Haynes, 902 F.3d at 734 (not relying on Ewing or academic freedom 

concept), Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 73–75

(2d Cir. 2015) (same), Ragozzine v. Youngstown State Univ., 783 

F.3d 1077, 1079 (6th Cir. 2015) (same), Elsayed Mukhtar v. Cal. 

State Univ., Hayward, 299 F.3d 1053, 1067–68 (9th Cir. 2002)

(same), overruled on other grounds by Estate of Barabin v. 

AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc), Clinger 

v. N.M. Highlands Univ., Bd. of Regents, 215 F.3d 1162, 1168 (10th 

Cir. 2000) (same), Krystek v. Univ. of S. Miss., 164 F.3d 251, 255–

58 (5th Cir. 1999) (same), Stewart v. Rutgers, 120 F.3d 426, 431–34

(3d Cir. 1997) (same), and Brown v. Trs. of Bos. Univ., 891 F.2d 337, 

345–46 (1st Cir. 1989) (same), with Blasdel v. Nw. Univ., 687 F.3d 

813, 816 (7th Cir. 2012) (citing Ewing and suggesting that, because 

of “academic freedom,” courts “tread cautiously” in Title VII tenure 

cases), Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d 550, 557 

(4th Cir. 2011) (because of Ewing and academic freedom concept, 

“courts may undertake” only “limited review” “in cases involving 

employment decisions of academic institutions”), Okruhlik v. Univ. 

of Ark., 395 F.3d 872, 879 (8th Cir. 2005) (citing Ewing and stating 

“academic setting” distinguishes “denial of tenure” “from 

employment decisions generally”), and Villanueva v. Wellesley 

Coll., 930 F.2d 124, 129 (1st Cir. 1991) (suggesting “academic 

freedom” is reason a denial of tenure must be obviously or manifestly 

unsupported to violate Title VII). On close examination of the latter 

cases, however, it is unclear whether they in fact apply a different 

Title VII standard. See Blasdel, 687 F.3d at 815 (acknowledging “the 

legal standard is the same whether the plaintiff in an employment 

discrimination case is a salesman or a scientist”); Adams, 640 F.3d 

at 557 (review of faculty employment decisions is limited “to 

whether the appointment or promotion was denied because of a 

discriminatory reason” as in non-tenure Title VII cases (quoting 
9

university. Although the First Amendment grants a university 

certain freedoms, the freedom to discriminate is not among 

them.

2. “Reasonable Jury” Factors

Having determined that the University is not entitled to

special deference in this case, we now assess whether 

Mawakana can establish a violation of Title VII and the 

DCHRA using the standard three-step burden-shifting 

framework set forth in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973). See Hairston v. Vance-Cooks, 773 F.3d 

266, 272 (D.C. Cir. 2014) (applying McDonnell Douglas to 

Title VII claim); Futrell, 816 A.2d at 802–03 (applying 

McDonnell Douglas to DCHRA claim). At the first step of 

McDonnell Douglas, an employee must show a prima facie 

case of discrimination. Hairston, 773 F.3d at 272. If the 

employee meets this burden, the burden shifts to the employer 

to proffer a legitimate, nondiscriminatory reason for the 

 

Smith v. Univ. of North Carolina, 632 F.2d 316, 345–46 (4th Cir. 

1980))); Okruhlik, 395 F.3d at 879 (“review of [tenure] decisions is 

limited to whether the tenure decision was based on a prohibited 

factor” as in non-tenure Title VII cases); Villanueva, 930 F.2d at 129 

(“Academic freedom does not embrace the freedom to 

discriminate.”). To the extent there is any genuine conflict, for the 

reasons discussed supra, we agree with those courts that do not grant 

universities special deference in Title VII tenure cases based on 

Ewing and the concept of academic freedom. We acknowledge that, 

when a court assesses a Title VII discrimination case, it has an 

obligation to ensure “the dispute is not simply one of academic 

disagreement with the underlying decision to deny tenure.” Haynes, 

902 F.3d at 734. But this obligation applies in every Title VII case—

that is, a Title VII plaintiff must always demonstrate not simply a 

substantive disagreement with the employment decision but that the 

decision was, at least in part, based on the plaintiff’s membership in 

a protected class.
10

challenged adverse employment action. Id. If the employer 

meets its burden, the burden shifts back to the employee to 

show that the reason offered by the employer was not its true 

reason but was instead a pretext for discrimination. Id. If the 

employer has already proffered a legitimate, nondiscriminatory 

reason for its adverse employment action, however, the court 

skips straight to “the ultimate question of discrimination vel 

non.” George v. Leavitt, 407 F.3d 405, 411–12 (D.C. Cir. 2005) 

(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 

711, 714 (1983)).

In this case the University has proffered a legitimate, 

nondiscriminatory reason for denying Mawakana tenure. It 

says he was denied tenure because his scholarship was 

deficient. Thus, we ask whether, “viewing the evidence in the 

light most favorable to [Mawakana] and drawing all reasonable 

inferences accordingly,” e.g., Steele v. Mattis, 899 F.3d 943, 

947 (D.C. Cir. 2018) (quoting Evans v. Sebelius, 716 F.3d 617, 

619 (D.C. Cir. 2013)), a reasonable jury could find Mawakana 

was denied tenure because of his race, see, e.g., Baloch, 550 

F.3d at 1196 (“[T]he two essential elements of a discrimination 

claim are that (i) the plaintiff suffered an adverse employment 

action (ii) because of the plaintiff’s race . . . .”). Specifically, 

we ask whether a reasonable jury could find that Mawakana’s 

race was a “motivating factor” in the University’s decision to 

deny him tenure. See 42 U.S.C. § 2000e-2(m) (plaintiff can 

prove liability under Title VII by demonstrating race “was a 

motivating factor for [the relevant] employment practice, even 

though other factors also motivated the practice”); see also 

Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (to make 

out Title VII claim, “plaintiff need only present sufficient 

evidence for a reasonable jury to conclude . . . that race . . . was 

a motivating factor for any employment practice” (internal 

quotation marks omitted)).
11

A constellation of factors suggests to us that a reasonable 

jury viewing the evidence in the light most favorable to 

Mawakana could find that race was a motivating factor in the 

University’s decision to deny him tenure. First, there is 

evidence that the University, and specifically Broderick,

treated certain criteria differently when assessing the 

scholarship of black tenure candidates as opposed to white 

candidates. According to the Law School’s Official Standards 

and Procedures for Retention and Tenure, the University 

considers both the number and the quality of a candidate’s 

published scholarly works an important criterion. But the 

University treated a co-authored work as inferior in assessing 

the application of a black candidate, Joint Appendix (JA) 1205, 

even though it did not do so in assessing the application of a 

white candidate, JA 1235–78. Likewise, Broderick treated

work published in the University’s own law review as inferior 

in assessing the application of a black candidate, JA 1229,

although the University did not so treat a white candidate’s 

work published in the same law review, JA 826–30. Finally, 

Broderick dissuaded a black candidate from applying for tenure 

by telling her that the University would not permit her to rely 

on legal briefs and memoranda as scholarship, JA 1233–34,

notwithstanding the University treated these materials as 

qualifying scholarship in assessing the application of a white 

candidate, JA 1235–70.

Second, there is evidence that Broderick, who played an 

outsized role in the tenure review process, see Mawakana, 315 

F. Supp. 3d at 205 (it is “not disputed” that a reasonable jury 

could believe “the recommendation of a Dean who had been 

running the law school for more than 15 years carried 

substantial weight”), disfavored Mawakana’s application. JA 

1202. This history is relevant because, although Broderick was 

not the ultimate decisionmaker, the jury could find that her 

negative stance on Mawakana’s tenure application was a 
12

“proximate cause” of the University’s ultimate decision to deny 

him tenure. See Morris v. McCarthy, 825 F.3d 658, 668 (D.C. 

Cir. 2016) (employer can be held liable in Title VII context if 

supervisor who is not ultimate decisionmaker performs act, 

motivated by discriminatory animus and intent to cause adverse 

employment action, which proximately causes such action 

(citing Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011))). 

The evidence in the record, viewed together and in the light 

most favorable to Mawakana, raises a plausible inference that 

Mawakana’s race was a reason Broderick disfavored his 

application. For instance, Broderick’s apparent change of 

position about the quality of one of Mawakana’s articles could 

be viewed as pretextual. She originally recommended 

Mawakana for promotion because the article was “of high 

quality, it reflects originality, creativity, and intellectual 

inquiry, and it contributes to the growth and understanding of 

the law,” JA 1156, but she later agreed with the faculty 

committee’s concern about Mawakana’s scholarship, which 

resulted in its finding that the same article did not meet tenure 

standards, JA 397. In her deposition, when asked if the “high 

quality” standard was the same for promotion and tenure, 

Broderick answered, “I think so, yes.” JA 1010. The record also 

raises a genuine issue of material fact whether Broderick 

changed her position on Mawakana’s service to the law school, 

which she found wanting in her recommendation against 

tenure. See JA 397. In his declaration, Mawakana said that 

Broderick and another professor “specifically asked [him] to 

take on” the role of Faculty Athletics Representative (FAR), 

that he was told the role counted toward his service at the law 

school and that Broderick did not express any reservation about 

it. JA 1058. In her letter recommending against tenure, 

however, Broderick said that she and the other professor 

“strenuously advised [Mawakana] not to accept the time 

consuming job as FAR in order to concentrate his efforts on his 

teaching and scholarship.” JA 397.
13

Third, the evidence adequately supports an inference that 

Broderick used her influence in a manner generally more 

supportive of white than black tenure candidates. Broderick

supported every white applicant for tenure during her time as 

Dean. JA 1004. Once, she lobbied so hard for a white applicant 

to receive tenure that another faculty member testified that she 

had “made [tenure] happen” for that applicant. JA 1026. On the 

other hand, Broderick raised concerns about more than half of 

the black applicants who applied for, or considered applying 

for, tenure, JA 1025, 1231; 1029; 1152–53; 1233–34, including 

Mawakana, JA 382, 1021–22, 1027–28, some before the 

faculty had even reviewed their applications, JA 1021–22, 

1025, 1028. And at least one person involved in the tenure 

review process seems to have believed race played a part in 

some of the Dean’s decisions whether to support an applicant. 

Indeed, the chairman of the faculty review committee wrote in 

an email to another faculty member: “After losing 4 colleagues 

these past months, all faculty of color, . . . I am not inclined to 

be pressured by more of [Broderick’s] efforts to clean her 

house.” JA 1314.

Fourth, two members of the University faculty who were 

privy to the internal workings of the tenure review process 

testified that they believed the University had disfavored black 

professors within that process. JA 1036–38, 1044–45.

Fifth, of the eight white applicants who applied for tenure 

between the time Broderick became the Dean in 1999 and the 

time Mawakana filed suit in 2014, each one received tenure. 

JA 1004. By contrast, of the seven black professors who 

applied for tenure within that time period, only five received 

tenure. JA 48–49, 1358–59; JA 400, 1206. Those numbers may 

not be overly alarming until one considers that one of the five 

was initially denied tenure—a decision which was reversed 

only after her Title VII race discrimination claim survived a 
14

motion to dismiss, see Brown, 774 F.3d at 1018; JA 49—and 

two other black faculty members were dissuaded from applying 

in the first place because Broderick told them they had no 

chance of succeeding, JA 1152–53, 1233–34.

These five factors, taken together and viewed in the light 

most favorable to Mawakana, raise a plausible inference that 

race was a motivating factor in the University’s decision to 

deny Mawakana tenure. At this stage, we give no opinion 

regarding whether Mawakana was in fact discriminated against 

based on his race. We simply cannot state that, as a matter of 

law, he was not discriminated against based on his race.

B. CONTRACT CLAIMS

Next we assess whether the University is entitled to 

summary judgment on Mawakana’s contract claims. Because 

the district court held these claims time-barred, we begin by 

addressing timeliness before moving to the merits.

1. Timeliness

“A contract action must be brought within three years of 

the date on which the ‘right to maintain the action accrues.’ An 

action for breach of contract generally accrues at the time of 

the breach.” Wright v. Howard Univ., 60 A.3d 749, 751 (D.C. 

2013) (quoting D.C. Code § 12-301). In his complaint, which 

he filed on October 2, 2014, Mawakana alleged that the 

University expressly and/or impliedly contracted with him to, 

inter alia, meet with him “at least once each academic year to 

. . . discuss the degree to which . . . his performance me[t] the 

standards for promotion and tenure.” Mawakana further 

alleged that, consistent with this requirement, the intent of the 

parties’ contract was that the University was to provide him 

with notice of any concerns it had regarding his scholarship 

“with sufficient time for [him] to make adjustments or 
15

corrections or address those concerns before a decision [was] 

made in the formal tenure review process.” Mawakana alleged 

that the University failed to meet its obligation and should 

therefore be held liable for breach of contract and breach of the 

implied covenant of good faith and fair dealing. We believe 

that Mawakana’s contract claims are timely to the extent they 

allege the University’s breach occurred when it failed to meet 

with him during the 2011-2012 academic year. If a breach 

occurred as alleged, his claims accrued on the final day of the 

2011-2012 academic year—sometime in mid-2012—less than 

three years before the October 2, 2014 filing date.

2. Merits

Thus, we proceed to the merits, where we ask whether a 

reasonable jury could find that—by failing to meet with him 

during the 2011-2012 academic year—the University breached 

either the terms or intent of its contract with Mawakana and 

thereby caused him damage. Indeed, “[t]o prevail on a claim of 

breach of contract, a party must establish (1) a valid contract 

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

contract; (3) a breach of that duty; and (4) damages caused by 

breach.” Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 

(D.C. 2009). And “all contracts contain an implied duty of 

good faith and fair dealing . . . . If a party to the contract evades 

the spirit of the contract . . . he or she may be liable for breach 

of the implied covenant of good faith and fair dealing.” Paul v. 

Howard Univ., 754 A.2d 297, 310 (D.C. 2000). At this stage, 

Mawakana may yet be able to prevail on one or both of his 

contract claims. 

There remains an unresolved factual dispute whether an 

implied-in-fact contract between Mawakana and the University 

existed and, if it did, what the terms and, in turn, the intent of 

that contract were. In an earlier ruling, the district court rejected 
16

Mawakana’s contract claims “insofar as they are based on a 

theory of express contract,” Mawakana v. Bd. of Trs. of Univ. 

of D.C., 113 F. Supp. 3d 340, 349 (D.D.C. 2015), but found 

that Mawakana stated “a plausible claim that a combination of 

[facts] created an implied contract between [him] and the 

University,” id. at 356. The district court has not, as yet, 

resolved whether an implied-in-fact contract existed. In the 

ruling under review, the district court assumed arguendo the 

existence of an implied-in-fact contract that imposed on the 

University “a duty to provide feedback and an annual review 

in academic year 2011-2012,” and held that “because plaintiff 

filed his tenure application before the 2011-12 academic year[,] 

. . . even if defendant breached the contract that year, that 

breach did not cause the harm of which plaintiff complains.” 

Mawakana, 315 F. Supp. 3d at 210–11. Because the court 

points to no basis in law nor any undisputed fact indicating that 

Mawakana would not have been able to update his application 

had he been timely informed of a deficiency, this was error.

If there existed an implied-in-fact contract between 

Mawakana and the University (a “valid contract”); if either the 

terms or intent of that contract imposed on the University a 

duty to meet with Mawakana at least once during the 2011-

2012 academic year to discuss whether his performance met 

the tenure standard (an “obligation or duty”); and if Mawakana 

would have been permitted to update his tenure application 

after such meeting, the University’s failure to meet with 

Mawakana during the 2011-2012 academic year (a “breach”) 

arguably contributed to his failure to obtain tenure (“caused” 

him “damages”). Because factual issues central to Mawakana’s 

contract claims remain disputed, the district court’s grant of 

summary judgment on these claims was premature.
17

For the foregoing reasons, we reverse the challenged 

portion of the district court’s judgment and remand the case for 

further proceedings consistent with this opinion.

So ordered.