United States District Court, N.D. Alabama, Eastern Division
BELITA A. BROOKS FAKI, Plaintiff,
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, Defendant.
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
Summary of Ms. Faki's Claims
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).
Summary of Pending Motions
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
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.
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.
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.
Ms. Faki began working for UAB in 1999. AF No. 2. Ms. Faki
was a language instructor for Spanish and Italian courses.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.