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Faki v. The Board of Trustees of University of Alabama

United States District Court, N.D. Alabama, Eastern Division

November 9, 2017

BELITA A. BROOKS FAKI, Plaintiff,
v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, Defendant.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         A. Summary of Ms. Faki's Claims

         On January 27, 2017, Plaintiff Belita A. Brooks Faki (“Ms. Faki”), who is representing herself, initiated this job discrimination lawsuit against the Board of Trustees of the University of Alabama (the “Board”). (Doc. 1); (see also Doc. 23 (substituting in correct name of Defendant)). Ms. Faki filed an amended complaint (doc. 10) on April 18, 2016. As amended, her lawsuit clearly asserts a cause of action for disability discrimination arising under the Rehabilitation Act of 1973. (See Doc. 10 at 5 (“CAUSE OF ACTION - Disability Discrimination”)). Ms. Faki also alleges that the Board retaliated against her for complaining about disability discrimination. (Id. at 5 ¶ 17).

         B. Summary of Pending Motions

         Pending before the Court is the Board's Motion for Summary Judgment (doc. 46) (the “Motion”) filed on June 13, 2017. The Board filed its brief (doc. 47) and evidentiary submission (Doc. 48) on this same date. The Board seeks a dismissal of Ms. Faki's case and additionally asks the Court to tax costs against her. (Id. at 25).[1]

On June 1, 2017, the Court entered its customary pro se summary judgment scheduling order (doc. 49) that gave Ms. Faki special notice of her right to respond to the Board's Motion with affidavits or other opposing evidence and warned her about the consequences of not adequately responding to it. Nonetheless, Ms. Faki has not responded to the Board's Motion.

         On August 7, 2017, the Board filed a Supplemental Motion for Summary Judgment (doc. 51) (the “Supplemental Motion”). The Board pointed out that Ms. Faki had failed to oppose summary judgment by her deadline of July 17, 2017. (Id. at 2 ¶ 5). As the Board's Supplemental Motion is redundant of the Motion-in terms of the relief sought by the Board-the Supplemental Motion is due to be termed as moot. Further, for the reasons explained below, the Board's Motion is due to be granted with the exception of taxing costs against Ms. Faki.

         II. FACTUAL BACKGROUND[2]

         Ms. Faki was a non-tenured instructor at the University of Alabama at Birmingham (“UAB”) in the College of Arts and Sciences (“CAS”), Department of Foreign Languages and Literature (“DFLL”). AF No. 1.[3] Ms. Faki began working for UAB in 1999. AF No. 2. Ms. Faki was a language instructor for Spanish and Italian courses.

         Ms. Faki has Sjogren's syndrome and mixed connective tissue disease, both of which are autoimmune diseases. AF No. 4. Ms. Faki alleges she is disabled because of Sjogren's syndrome and mixed connective tissue disease. AF No. 5. Ms. Faki's amended complaint alleges disability discrimination in violation of the Rehabilitation Act (29 U.S.C. § 794) and is based on her claim that her employment with UAB was terminated because of her disability. AF No. 6.

         On September 16, 2015, Ms. Faki notified the CAS Dean, Robert Palazzo (“Dean Palazzo”), Department Chair Julian Arribas, Ph.D. (“Dr. Arribas”), and Professor Catherine Danielou (“Dr. Danielou”) that she had a disability, wanted certain accommodations, and inquired who she should talk to about obtaining accommodations. AF No. 7. Ms. Faki did not tell anyone at UAB that she was disabled until her notice to Dean Palazzo, Dr. Arribas, and Professor Danielou. AF No. 8.

         UAB has a formal program to assist employees with disabilities. AF No. 9.1.This is called the AWARE (Always Working to Advocate, Retain & Employ) Program. AF No. 9.2. The AWARE program provides disability-management services when an employee's job is affected by a physical, mental, or emotional impairment. AF No. 9.3.

         UAB Human Resources (“HR”) coordinates employee requests for reasonable workplace accommodations. AF No. 10.1. It is the process and procedure of UAB HR that employees make accommodation requests by completing an Employee Accommodation Request Form and returning it to the AWARE Disability Management Program Coordinator. AF No. 10.2.

         It is an employee's responsibility to request an accommodation. AF No. 11.1. The AWARE Program may require written documentation of an employee's limitations or restrictions from an appropriate health care provider to support a reasonable request for accommodation. AF No. 11.2. After Ms. Faki's September 16, 2015, email disclosing a disability and requesting accommodations, Ms. Faki was informed she needed to complete an Employee Accommodation Request Form, was given that form, and was instructed to contact Sherri Moultrie, Disability Management Program Coordinator of UAB's AWARE program, for additional help with her disability and request for accommodations. AF No. 12.

         Ms. Moultrie first learned on September 17, 2015, that Ms. Faki had a disability and might require accommodations when she received an email from the Manager of HR Operations for the CAS. AF No. 13. Before September 17, 2015, neither Ms. Moultrie nor UAB HR/AWARE had any record of Ms. Faki's report of a disability or a request for any accommodations. AF No. 14. Ms. Moultrie communicated with Ms. Faki several times regarding her request for accommodations.

         Ms. Faki never supplied UAB's AWARE program with a fully complete Employee Accommodation Request Form nor physician documentation supporting her disability or need for accommodations. AF No. 16. If Ms. Faki had submitted a complete Employee Accommodation Request Form and the necessary information from her physician, UAB would have accepted this information and continued to facilitate the interactive process to determine and implement necessary reasonable accommodations for her. AF No. 17.

         As a non-tenured instructor, Ms. Faki's performance was evaluated based on two components - (1) teaching; and (2) service. AF No. 18.1. Teaching was weighted at 80% and service weighted at 20%. AF No. 18.2. With this weighting, a faculty member cannot achieve a satisfactory overall performance evaluation without a satisfactory teaching evaluation. AF No. 18.3. Ms. Faki's teaching performance was deficient, and these deficiencies were frequently noted in her annual performance appraisals by faculty as well as by students in student course evaluations. AF No. 19.

         One method that UAB uses to evaluate faculty is the IDEA Evaluation. AF No. 20.1. At the conclusion of each semester, students use an anonymous IDEA Evaluation to rate faculty members' performance. AF No. 20.2. IDEA Evaluations across multiple years are considered when there is concern about faculty teaching performance. AF No. 20.3. As early as Fall 2011, Ms. Faki's IDEA Evaluations showed she more often than not performed below her DFLL peers in the CAS at UAB. AF No. 21.

         The IDEA Evaluations also revealed student complaints about her poor teaching performance that included being unprepared, disorganized, indecisive, hard to contact outside of class, not encouraging, disrespectful to students, a poor communicator, and overall simply not a good teacher of foreign language. AF No. 22. A common theme with Ms. Faki was student complaints about her bad attitude, failure to adequately teach material, and students' belief that they were not learning from her instruction. AF No. 23. Dr. Arribas and Dean Palazzo agreed that Ms. Faki's consistently poor teaching performance was a reason to not renew her appointment as an instructor in the DFLL. AF No. 24.

         Another reason Dr. Arribas did not renew Ms. Faki's appointment as an instructor in the DFLL was the necessary reduction in Spanish courses. AF No. 26. Enrollment in Spanish classes, specifically the Spanish courses that Ms. Faki taught, had decreased. AF No. 27. Dr. Arribas determined that to ensure the academic and financial success of the DFLL program as well as to meet programmatic needs with course offerings, the DFLL needed to decrease the number of Spanish classes offered. AF No. 27.

         Dr. Arribas provided a letter to Ms. Faki dated December 28, 2015, which she received, outlining the changed Departmental needs, financial situation of the DFLL, and Ms. Faki's poor performance as reasons her appointment as an instructor would not be renewed and providing Ms. Faki with twelve months' notice that her employment would end December 28, 2016. AF No. 28.

         Ms. Faki filed a Charge of Discrimination with the EEOC (Charge No. 420-2016-00253) on October 29, 2015, alleging discrimination based on a disability. AF No. 29. The EEOC did not find evidence of a violation of the Rehabilitation Act and issued a Dismissal and Notice of Rights letter dated November 2, 2015. AF No. 30. On April 19, 2016, Ms. Faki filed an amended complaint alleging discrimination because of a disability in violation of the Rehabilitation Act. AF No. 31.

         III. STANDARDS

         A. Summary ...


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