Faragalla v. Douglas Cnty. Sch. Dist. Re 1
| Decision Date | 12 January 2011 |
| Docket Number | No. 10-1433,D.C. No. 1:07-CV-02584-REB-BNB,No. 09-1393,09-1393,10-1433 |
| Parties | ABEER FARAGALLA, Plaintiff-Appellant, v. DOUGLAS COUNTY SCHOOL DISTRICT RE 1; DOUGLAS COUNTY SCHOOL DISTRICT BOARD OF EDUCATION; DOUGLAS COUNTY FEDERATION FOR CLASSIFIED EMPLOYEES; CEREBRAL PALSY OF COLORADO, INC., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.
Abeer Faragalla filed a pro se action against two of her former employers and a union, alleging various claims related to her previous employment. Thedistrict court granted summary judgment in favor of defendants on a majority of the claims and declined to exercise supplemental jurisdiction over the remaining state-law claims. The court subsequently awarded defendants their costs. In these companion pro se appeals, Ms. Faragalla challenges the district court's orders granting summary judgment and awarding costs. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Ms. Faragalla worked for Cerebral Palsy of Colorado, Inc. (CP) for several months in 2002. After CP terminated her employment in September 2002, she filed a complaint against CP with the Equal Employment Opportunity Commission (EEOC). She alleged retaliation and discrimination based on her Egyptian national origin. Although she received a right-to-sue letter from the EEOC, Ms. Faragalla did not file an action against CP within 90 days.
Beginning in August 2005, Ms. Faragalla was employed by Douglas County School District (DCSD). She worked at Iron Horse Elementary School (Iron Horse) as an Educational Assistant (EA) for students with special needs. In February 2006, DCSD rated her job performance as "Meets Expectations." R., Vol. 2 at 418. Comments to her written evaluation stated, "Goals for Abeer include developing a positive relationship with her co-workers" and "a goal for her is to realize that interruptions and changes of plans always occur and she needs to follow through with these additional requests." Id. at 417. In thefollowing school year, Ms. Faragalla's workload increased when she was assigned to work with more than one special-needs student. That fall she began reporting to Tanya Pennington, a special education teacher at Iron Horse. From November 2006 to April 2007, Ms. Pennington documented concerns about Ms. Faragalla's job performance. Ms. Faragalla contends some of the events never occurred, or that Ms. Pennington misrepresented them. During this time, Ms. Faragalla complained to Ms. Pennington about being demeaned, having a heavier work load than other EAs, and being assigned different duties than other EAs, specifically excessive photocopying and cleaning the cafeteria.
Ms. Faragalla met with Ms. Pennington and Steve Getchell, Iron Horse Principal, in December 2006 to discuss an incident related to her supervision of special-needs students. Mr. Getchell informed her at that time that not all of the tasks in her job description involved working directly with students. In mid-February 2007 Ms. Faragalla had a dispute with Sandra Gates, another EA, about who would work with a particular student, after which she complained to Kathy Nelson, Iron Horse Assistant Principal, of being yelled at and harassed by other EAs. Ms. Nelson met with Ms. Faragalla and Ms. Gates regarding their dispute and spoke to other employees who witnessed it. She concluded that Ms. Gates had not yelled at or done anything harassing toward Ms. Faragalla. Ms. Nelson counseled Ms. Faragalla on the need to be flexible and get along with co-workers.
DCSD put Ms. Faragalla on a performance improvement plan (PIP) on February 22, 2007. The PIP identified goals, including working cooperatively and collaboratively with Iron Horse staff; following assigned schedules when working with students; and maintaining appropriate behavior as outlined in the District Behavior Expectations. It also called for Ms. Faragalla to receive coaching and training on working appropriately with co-workers, teaming, and collaboration. The PIP required Ms. Faragalla to achieve the stated goals by May 11, 2007. In a meeting on March 9, Mr. Getchell and Ms. Nelson informed Ms. Faragalla they had continuing concerns regarding her compliance with District Behavior Expectations.
On April 2, 2007, Ms. Faragalla complained to Debbie McGee, DCSD's Human Resources Director, of discrimination and harassment by Iron Horse staff. Ms. McGee construed her complaint as alleging unlawful discrimination. Four days later, on April 6, Mr. Getchell counseled Ms. Faragalla regarding a report that she had placed a rope around a student's body (hereafter Rope Incident). On April 12, Mr. Getchell counseled her regarding a report that she had left a special needs student unattended in a bathroom on April 9 (hereafter Bathroom Incident).
Ms. McGee investigated Ms. Faragalla's discrimination and harassment claims and found no evidence to support them. She reported her conclusions in writing to Ms. Faragalla on May 7. Ms. Faragalla appealed Ms. McGee's decision to Superintendent Jim Christiansen, who reviewed the matter andinformed her by letter dated May 9, 2007, that he agreed with Ms. McGee's findings.
After consulting with DCSD's Human Resources Department, Principal Getchell recommended termination of Ms. Faragalla's employment to the DCSD Board of Education. He informed her of his recommendation orally and in writing on May 11, 2007. His letter to her summarized the performance incidents supporting his conclusion that she failed to achieve the goals outlined in the PIP. He also provided her with a new evaluation in which he rated her performance as "Does Not Meet Expectations." R., Vol. 2 at 440.
Ms. Faragalla filed a complaint against DCSD with the EEOC on May 31, 2007, alleging discrimination based on her national origin and religion, and retaliation. The Board of Education acted on Mr. Getchell's termination recommendation on June 5, 2007. Ms. Faragalla requested a Level III grievance hearing on her termination. She asked for union representation in this hearing, but Douglas County Federation for Classified Employees (DCFCE) declined to be involved on the basis that she was not a member of the union. She attended a Level III hearing before Bill Hodges, DCSD Assistant Superintendent, on June 14, 2007. He investigated her allegations and informed her by letter dated June 20, 2007, that he supported the decision not to reinstate her employment with DCSD. Mr. Hodges also told her she could ask DCFCE to pursue a Level IVarbitration hearing on her behalf, but the decision to do so was within the union's discretion.
DCFCE sought the advice of counsel regarding whether to demand arbitration on Ms. Faragalla's behalf. Before addressing the merits of her grievance, counsel clarified that "[a]ll bargaining unit members, whether union members or not, receive representation from [DCFCE]." Id. at 330. Thus, Ms. Faragalla's status as a non-member was not an appropriate basis for the union to decline to represent her. Counsel then opined that her case was "extremely weak" and that DCFCE had "almost no chance of a successful arbitration" on her behalf. Id. On the basis of its counsel's opinion, DCFCE declined to demand arbitration on Ms. Faragalla's grievance.
Ms. Faragalla spoke to and met with Brenda Smith, President of DCFCE, and Tiffany Oslund, Classified Vice President of DCFCE. She says they tried to persuade her to assert in her grievance that she was doing a good job and was fired for no reason. But when she insisted on pursuing her discrimination and retaliation claims, they responded, Id., Vol. 4 at 40. Explaining why she thought Ms. Faragalla should not assert her discrimination and retaliation claims, Ms. Smith told her, "[B]ecause Abeer, that makes your claim weak." Id.
Ms. Faragalla filed additional EEOC complaints against DCSD and CP on September 26, 2007, alleging that she was being denied employment opportunities due to negative references from her former employers. She claimed retaliation and discrimination based on her national origin and religion. Ms. Faragalla filed this action against defendants in December 2007. Her Third Amended Complaint (Complaint) included twelve claims for relief, alleging causes of action under Title VII, 42 U.S.C. §§ 2000e-2 & 2000e-3; 42 U.S.C. §§ 1981 and 1983, additional federal statutes, the United States Constitution, the Colorado Constitution, and other state law. Defendants moved for summary judgment. The district court referred their motions to a magistrate judge, who recommended that the district court grant summary judgment in favor of all defendants. After reviewing Ms. Faragalla's objections, the district court approved and adopted the magistrate judge's recommendations, granted the motions for summary judgment, and entered judgment in favor of defendants. The court subsequently awarded defendants their costs.
Ms. Faragalla filed timely notices of appeal and applications to proceed in forma pauperis on appeal. The district court granted her application in case number 09-1393 (), but denied her application in case number 10-1433 (award of fees/costs), concluding the latter appeal was not taken in good faith.
"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Somoza v. Univ. of Denver, 513 F.3d 1206, 1211 (10th Cir. 2008) (quotation omitted). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "We...
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