UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAMUEL H. MWABIRA-SIMERA, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-441 (RWR) ) HOWARD UNIVERSITY et al., ) ) Defendants. )

MEMORANDUM OPINION

Plaintiff Samuel H. Mwabira-Simera filed a pro se discrimination complaint against

Howard University and three individuals, Patrick Swygert, former President of the University,

Orlando Taylor, dean of the University’s graduate school, and Errol Noel, professor and chair of

the University’s department of civil engineering and also Mwabira-Simera’s academic program

advisor. The University has moved post-discovery for summary judgment. Because there are no

material facts in dispute and the University is entitled to judgment as a matter of law, the

University’s motion will be granted, and all other pending motions will be denied as moot.

BACKGROUND

Mwabira-Simera, a Ugandan male who was a torture victim in Uganda and suffers from

related post-traumatic stress disorder (“PTSD”), matriculated in the University’s civil

engineering program for one semester in Spring 1997, and then again for four semesters from

Spring 2000 through Fall 2001. Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), Defs.’ Stmt. of

Material Undisputed Facts (“SMUF”) ¶¶ 4-5. In January 2002, Taylor, in his role as dean of the

graduate school, sent a letter dismissing Mwabira-Simera for poor academic performance. Id., -2-

Ex. 24, Decl. of Orlando L. Taylor (Aug. 17, 2007) (“Taylor Decl.”) ¶ 15 & Ex. B. Mwabira-

Simera contends he was dismissed as a result of unlawful discrimination. Specifically, he alleges

national origin and disability discrimination, a hostile environment, and retaliation, and he asserts

claims under Titles VI and VII1 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. and

2000e et seq., Title IX of the Education Amendments of 1972,

et seq., and Title

II of the Americans With Disabilities Act (“ADA”),

et seq. See Am. Compl.

¶¶ 11-45. In addition, the amended complaint mentions in passing § 504 of the Rehabilitation

Act of 1973,

et seq., and purports to assert claims under the Administrative

Procedure Act (“APA”),

et seq., and the Due Process Clause of the Fifth

Amendment. See Am. Compl.¶ 49. It also asserts an “abuse of process” claim, but is unclear

whether this is intended as part of the constitutional claim or as an independent common law

claim. See

. In an abundance of caution, it will be analyzed as both. Mwabira-

Simera seeks $5 million in compensatory damages and $15 million in punitive damages.

.2

1 Mwabira-Simera and the University have not had an employee-employer relationship since 2001 or earlier. SUMF ¶ 18. 2 Although Mwabira-Simera contends in his opposition that he also alleged violations of Title I of the ADA,

et seq., violations of

and 1983, and two criminal statutes, see Opp’n at 5, in fact, his amended complaint contains no such allegations. At the very most, the amended complaint states that “Defendant is responsible under law for all acts [under color of state law] performed by Defendants . . . by virtue of the doctrine of respondeat superior . . . .” Am. Compl. at 17. Even under the liberal pleading standard accorded a pro se plaintiff, see Haines v. Kerner,

(1972), this single use of the phrase “under color of state law” in this context does not provide adequate notice to the University that Mwabira-Simera means to allege a violation of

. In any event, a claim brought under § 1983 against a non-governmental entity fails to state a claim upon which relief may be granted. Because the defendant was not on notice of these claims prior to completing discovery, the claims Mwabira-Simera mentions in his opposition that he did not set -3-

Despite the lengthy submissions on record, the material facts are relatively few and not in

genuine dispute. The University’s graduate school has published rules and regulations, one of

which mandates that a student be dropped from a course of study when he or she receives more

than nine credit hours of grades C or below. Defs.’ Mot., SMUF ¶ 6-7 & Ex. 1 at 11. It also

provides that a program’s “graduate faculty can recommend the dismissal of a student who

demonstrates an inability to perform satisfactorily at the graduate level. Id. In a total of four

semesters of course work, Mwabira-Simera earned five C’s and one D, but some of the grades

were awarded late because he did not complete and submit the work during the course term. Id.,

SMUF ¶¶ 21-30, 36-40 (earning one C for a course taken in Spring 1997, two C’s and one D for

courses taken in Fall 2000, and two C’s for courses taken in Spring 2001). Mwabira-Simera

proposed a thesis project that his academic advisor, Noel, disapproved as not within the sphere of

either the advisor’s expertise or the student’s course of study, flawed in its design and not

advisable in light of the student’s preparation in mathematics. Id., SMUF ¶¶ 44-47. After

Mwabira-Simera informed the associate dean of the graduate school that he had asked a junior

faculty member from a different university to chair his thesis committee on the disapproved

thesis project, the associate dean asked the graduate faculty of the civil engineering department to

make a recommendation on how to proceed with Mwabira-Simera’s matriculation in the

program. Id., SMUF ¶¶ 67-71. On November 19, 2001, the civil engineering program graduate

faculty committee recommended that Mwabira-Simera be dismissed due to his “sustained

unsatisfactory academic performance” and his unwillingness to follow the advice of his academic

program advisor. Id., SMUF ¶¶ 72-73. Taylor, after reviewing the record and concurring with

forth in his amended complaint will not be considered. -4-

the graduate faculty’s recommendation, notified Mwabira-Simera by letter dated January 25,

2002, that he was no longer eligible to pursue his course of study in the civil engineering

graduate program. Id., SMUF ¶¶ 79, 81-84. In its entirety, that letter stated

This is to inform you that a review of your academic record revealed during your tenure in the Graduate School you have accumulated an excess of five (5) grades below B. The Graduate School regulation[] states that:

“A student will be dropped when he or she receives more than nine (9) hours of “C” or a “C” grade in more than two (2) courses where at least one of the courses is for four (4) or more credits and where the total credit hours of “C” is greater than nine (9) hours.”

(See The Graduate School of Arts and Sciences, Rules and Regulations for the Pursuit of Academic Degrees, Section 2. Grades and Academic Status.)

Therefore, in keeping with Graduate School Regulations, I am writing to inform you that you are no longer eligible to pursue further study in the Graduate School.

I wish you success in your future endeavors.

Id., Taylor Decl. ¶ 15 & Ex. B. The notification letter was sent certified mail return receipt

requested, and was received and signed for by him on or before February 5, 2002. Id., Taylor

Decl. ¶ 16 & Ex. C.

Although it is undisputed that Mwabira-Simera appealed his dismissal through the

University’s grievance system and sought readmission to the graduate program, there is no

evidence in the record that Mwabira-Simera filed an administrative claim of discrimination with

either the U.S. Equal Employment Opportunity Commission (“EEOC”) or the District of -5-

Columbia’s Office of Human Rights (“DCOHR”) as a result of the University’s action. On

February 4, 2005, the clerk of court received the plaintiff’s pro se complaint for filing.

DISCUSSION

Where a defendant challenges an asserted claim because it fails to state a claim upon

which relief may be granted, and matters outside the pleadings have been presented to and not

excluded by the court, the motion is treated as one for summary judgment. See Fed. R. Civ. P.

12(d). A motion for summary judgment must be granted if the pleadings and evidence on file

show that there is no genuine issue of material fact, and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

(1986). In considering whether there is a triable issue of fact, a court must draw all

reasonable inferences in favor of the non-moving party. Liberty Lobby,

. The

party opposing a motion for summary judgment, however, “may not rely merely on allegations or

denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine

issue for trial[,]” Fed. R. Civ. P. 56(e)(2), that would permit a reasonable jury to find in his favor.

Laningham v. U.S. Navy,

(D.C. Cir. 1987). The non-moving party must do

more than simply “show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). Moreover, any

factual assertions in the movant’s affidavits will be accepted as being true unless the opposing

party submits his own affidavits or other documentary evidence contradicting the assertion. Neal

v. Kelly,

(D.C. Cir. 1992).

As an initial matter, several of the claims asserted must be dismissed because they are

patently inapplicable on the facts presented and therefore fail to state a claim upon which relief -6-

may be granted. Neither the University, which is a private educational institution, nor any of the

individual defendants are subject to suit under the APA, Title II of the ADA, or the Due Process

Clause of the Fifth Amendment. The APA applies only to agencies of the federal government.

See

(b)(1) (“‘agency’ means each authority of the Government of the United

States,”) and 704 (providing for judicial review of “final agency action”). Title II of the ADA

applies only to “public entities,” which is expressly defined to include only “(A) any state or

local government; (B) any department, agency, or special-purpose district, or other

instrumentality of the state or states or local government; and (C) the National Railroad

Passenger Corporation, and any commuter authority [as defined elsewhere].”

.

The Fifth Amendment’s Due Process Clause applies only to the actions of agents of the federal

government (and the Fourteenth Amendment’s Due Process Clause applies only to the actions of

agents of state governments and municipalities). Accordingly, as the defendants in this suit are

not proper defendants, the claims asserted under the APA, Title II of the ADA and the Due

Process Clause, including any intended allegation of a constitutional abuse of process, must be

dismissed because they fail to state a claim upon which relief may be granted.

A common law claim for abuse of process is also inapplicable in this case. Such a claim

arises when one party has misused or perverted the court system against another. Geier v.

Jordan,

(D.C. 1954) (distinguishing the tort of abuse of process from the tort

of malicious prosecution). Here, the defendants did not invoke the court system at all in their

dealings with Mwabira-Simera, let alone pervert it. Therefore, Mwabira-Simera cannot maintain

a common law abuse of process claim against any of the defendants. -7-

In addition, none of the individual defendants is subject to suit under any of the anti-

discrimination statutes asserted. “[T]he text of Title VI [of the Civil Rights Act of 1964] . . .

precludes liability against . . . individuals.” Shotz v. City of Plantation, Fla.,

; see also Goonewardena v. New York,

(S.D.N.Y. 2007) (“Title

VI claims cannot be asserted against an individual defendant[.]”). Similarly, “Title VII does not

impose liability on individuals in their personal capacity.” Cruz-Packer v. District of Columbia,

(D.D.C. 2008) (citing Gary v. Long,

(D.C. Cir.

1995)). “Claims under section 504 of the Rehabilitation Act of 1973 . . . against individuals in

the individual capacity are foreclosed[,]” and “[i]ndividuals are not proper defendants under

Title IX.” Goonewardena,

. Therefore, the three individual

defendants will be dismissed from this lawsuit because the plaintiff has not asserted claims as to

them upon which relief may be granted.

Mwabira-Simera also has not stated a claim upon which relief may be granted under

Title IX against the University. Title IX provides that “[n]o persons in the United States shall, on

the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.”

(a). Title IX does not address race or disability discrimination, which are the

only types of discrimination the plaintiff alleges in his amended complaint or attempts to support

in his subsequent submissions on the record. Therefore, the Title IX claim will be dismissed

because it also does not state a claim upon which relief may be granted.

The University has raised the statute of limitations affirmative defense, arguing that all of

the discrimination claims are time-barred. Where a federal statute does not specify a period of -8-

limitation after which a claim is time-barred, federal law requires applying the local statute of

limitation for the most-analogous injury. See Wilson v. Garcia,

(1985) (approving

analogizing a § 1983 claim as one for personal injury and applying the local statute of limitation).

Under District of Columbia law, a violation of a federal anti-discrimination law is subject to the

three-year limitation period applicable to a claim for personal injury. See D.C. Code 12-301(8).

Thus, all of the federal discrimination claims asserted in the amended complaint are subject to

dismissal if not brought within three years of the accrual of the alleged injury. See Richards v.

Duke Univ.,

(D.D.C. 2007) (Title VI and Title IX); Long v. Howard

Univ., 512 F Supp. 2d 1, 11-12 (D.D.C. 2007) (Rehabilitation Act and ADA). Although Title

VII claims have the same statutory three-year limitation period, they have an effective limitation

period that is far shorter because federal law required Mwabira-Simera to file an administrative

charge of discrimination within 300 days of the time he knew of the University’s adverse action.

(e)(1); Akonji v. Unity Health Care, Inc.,

(D.D.C.

2007). If that 300-day deadline is missed, a plaintiff has no recourse under Title VII in federal

court. See Iweala v. Operational Technologies Servs., Inc.,

(D.D.C.

2009).

Title VII applies only to employers. See 42 U.S.C. § 2000e-2 (a) (“It shall be an unlawful

employment practice for an employer . . . .”). Mwabira-Simera’s relationship to the University as

an employee ended in 2001 at the latest. Defs.’ Mot., SMUF ¶ 18. Any claims he brings under

Title VII are thus now time-barred. The University also asserts that Mwabira-Simera did not

exhaust his administrative remedies prior to filing suit. There is no evidence in the record that

Mwabira-Simera exhausted his administrative remedies as Title VII requires. Although -9-

Mwabira-Simera pleads that he exhausted his administrative remedies, and states that

documentary proof of having done so is appended to his amended complaint, see Am. Compl.

at 6 & App., no documentary proof of exhausting an administrative complaint is anywhere to be

found in this voluminous record. The University has filed a declaration affirming that the

“University has no record of receiving a Notice of any Charge of discrimination filed by Mr.

Mwabira-Simera with the EEOC against the University relating to any of the claims asserted by

Mr. Mwabira-Simera in this litigation.” Defs.’ Mot., Ex. 31, Decl. of Leroy T. Jenkins, Jr., Esq.

(Aug. 22, 2007) ¶¶ 3-5. If Mwabira-Simera had filed a discrimination charge with either the

EEOC or the DCOHR, the University would have received a Notice of Charge, because “[u]nder

a formal work-sharing agreement, filing a formal charge with the EEOC satisfies any

requirement to file a formal charge with the District’s OHR, and vice-versa.” Cruz-Packer,

. Accordingly, on this record, there is no dispute about the material fact that

Mwabira-Simera did not exhaust his administrative remedies before filing suit, and the

University is entitled to summary judgment on the Title VII claims.

The University argues that all of the other discrimination claims are time-barred by the

statutory three-year limitations period. Its argument is based on the mistaken impression that

Mwabira-Simera filed his complaint on March 2, 2005. When a pro se plaintiff submits an

application to proceed in forma pauperis along with the complaint, the opening of the case is

delayed until the application is approved. Therefore, the date on which the complaint was

received by the clerk of court for filing is the critical filing date for statute of limitations

purposes. In this case, Mwabira-Simera submitted his complaint to the clerk of court for filing

on February 4, 2005. Because the record evidence establishes that Mwabira-Simera learned of - 10 -

his dismissal by letter from the University, and that Mwabira-Simera had received the letter by

February 5, 2002, he had three years, until February 4, 2005, to file his complaint. Thus, his

filing of the complaint was timely as to his dismissal. Causes of action arising from any other act

of discrimination alleged to have occurred in the months or years preceding his receipt on

February 5, 2002, of the letter notifying him that he was dismissed are time-barred. Furthermore,

the University’s refusal to reverse or alter its decision in the aftermath of its dismissal

notification is not what triggers the limitations period. Delaware State College v. Ricks,

(1980) (“The existence of careful procedures to assure fairness . . . should not obscure

the principle that limitations periods normally commence when the . . . decision is made.”).

At this point, then, only the Title VI and Rehabilitation Act3 claims against the University

remain, and their survival depends in the first instance on showing that the dismissal was the

result of unlawful discrimination. To defeat the University’s explanation that it dismissed him

for an unsatisfactory academic performance, Mwabira-Simera must “prove by a preponderance of

the evidence that the legitimate reason[] offered by the defendant [was] not its true reason[], but

[was] a pretext for discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine,

, 253

3 Even under a generous reading of the complaint and the subsequent submissions by Mwabira-Simera, it does not appear that he alleges any disability discrimination after the 2000- 2001 academic year. On this basis, then, the University would be entitled to judgment as a matter of law because claims arising from acts occurring before February 4, 2002 are time- barred. However, in an abundance of caution, the disability claims will be analyzed as if Mwabira-Simera had straightforwardly alleged that his dismissal was retaliation for some protected activity or the culminating act of a series of events constituting a hostile environment related to his alleged disability. See Nat’l R.R. Passenger Corp. v. Morgan,

(2002) (“A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.”). The Court expressly does not reach the question of whether the alleged disability is a disability for purposes of the Rehabilitation Act. - 11 -

(1981). “At that point, the plaintiff can survive summary judgment only by showing that a

reasonable jury could conclude that he was terminated for a discriminatory reason.” Jackson v.

Gonzales,

(D.C. Cir. 2007). On this record, no reasonable jury could conclude

that Mwabira-Simera was terminated for either his national origin or his PTSD as opposed to

having earned more grades below “B” than the University’s graduate school regulations

permitted. Mwabira-Simera has not submitted any evidence to show that his academic

performance was mere pretext for unlawful discrimination, nor has he submitted any evidence to

show that he was treated differently than others similarly situated. Accordingly, his

discrimination claims cannot survive summary judgment.

CONCLUSION

For the reasons stated, the University’s motion will be granted, all other pending motions

will be denied as moot, and judgment will be awarded to the University.

A separate order accompanies this memorandum opinion.

SIGNED this10th day of March, 2010.

/s/ RICHARD W. ROBERTS United States District Judge