El-Saba v. Univ. of S. Ala.

• Decision Date: 22 September 2015
• Docket Number: CIVIL ACTION NO. 15-00087-KD-N
• Parties: AED EL-SABA, Plaintiff, v. UNIVERSITY OF SOUTH ALABAMA, Defendant.
• Court: U.S. District Court — Southern District of Alabama

AED EL-SABA, Plaintiff, v. UNIVERSITY OF SOUTH ALABAMA, Defendant.

CIVIL ACTION NO. 15-00087-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

September 22, 2015

REPORT AND RECOMMENDATION

This action is before the Court on the Motion to Dismiss (Doc. 11) and supporting brief (Doc. 12) filed by Defendant University of South Alabama ("the University"), which seeks dismissal of the Complaint (Doc. 1) under Federal Rule of Civil Procedure 12(b)(6). Plaintiff Aed El-Saba ("El-Saba") has timely filed a response (Doc. 21) to the motion, and the University has timely filed a reply (Doc. 23) to the response. The motion is now under submission (see Doc. 20) and is ripe for disposition.

Under S.D. Ala. GenLR 72(b), the Motion to Dismiss (Doc. 11) has been referred to the undersigned Magistrate Judge for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR 72(a)(2)(S). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that the University's Motion to Dismiss (Doc. 11) be GRANTED in part and DENIED in part, as set out.

I. Well-Pleaded Factual Allegations¹

El-Saba, whose country of origin is Lebanon, became a naturalized United States citizen in 1991. El-Saba was employed at the University as a professor in its Electrical and Computer Engineering ("ECE") Department.² His immediate supervisor was M.S. Alam, Ph.D. ("Chairman Alam"), chairman of the ECE Department. At all relevant times, John Steadman, Ph.D. ("Dean Steadman"), was dean of the University's College of Engineering.

El-Saba's Complaint documents a litany of instances of perceived discrimination against foreign-born/middle eastern professors, perpetrated against both himself and others, dating back to "the end of the 2006 academic year..." These actions of discrimination were perpetrated primarily by Dean Steadman, with various other University employees also participating at different times. The following timeline summarizes these alleged instances of discrimination:

1. End of the 2006 academic year - El-Saba accuses Dean Steadman of racial discrimination against Middle Eastern professors with respect to salary raises for 2004-2006 at a general meeting of approximately 25 professors.

Dean Steadman was asked to recuse himself at this meeting. The following day, Dean Steadman asked Chairman Alam how he could allow El-Saba to accuse him of racism.

2. Late 2006/early 2007 - Dean Steadman states that he wanted to "change the demographics" of the ECE Department.

3. 2007/early 2008 - Dean Steadman says that he would like to hire native born, natural English speaking faculty. El-Saba and other faculty complained of this policy at an ECE department meeting, which is allegedly reflected in the minutes of this meeting.³

4. April 2008 - Dean Steadman directs the ECE Department's Search Committee not to interview applicants holding H1B visas (temporary professional work visas), initially claiming this was a College of Engineering policy. At a department meeting, as reflected in the meeting minutes, El-Saba raised the issue of whether qualified candidates were being excluded under the H1B visa policy. The chairman of the search committee agreed they had but assured El-Saba that the best candidates had been selected. Dean Steadman reversed the H1B visa policy in September 2008.

5. Fall 2008 - El-Saba requests one semester of leave to have dental surgery done overseas. In a series of three meetings, Dean Steadman limited El-Saba to six weeks with five days of sick leave and two days of unpaid leavebetween each surgery with a start date of August 29, 2008, and a return to work date of October 21.

6. November 2008 - Dean Steadman instructs the search committee to include only permanent resident applicants (i.e. those with "green cards") on its short interview list, claiming this instruction had been cleared by the University's attorney and the Vice President for Academic Affairs. This policy was ultimately abandoned.⁴

7. Late 2008 - Dean Steadman, through Chairman Alam, tells the search committee that he "would prefer, all things being equal, to hire native born, natural English speaking faculty."

8. May 2009 - Chairman Alam, on written instructions from Dean Steadman, proposed to evaluate El-Saba for the full 2008-2009 academic year without giving regard to the fact that El-Saba was on leave during the Fall 2008 semester for dental surgery, see supra. This, according to El-Saba, would have failed to account for the fact that, while he was out during the Fall 2008 semester, his teaching load had been assumed by others and El-Saba could only "advise students, supervise graduate student theses, write research proposals for funding, etc." Chairman Alam also "refused to give him any consideration for recovering from the surgeries." This evaluation resulted ina lower score and jeopardized El-Saba's raises and promotions. El-Saba refused to sign the evaluation.

9. Fall 2009 - El-Saba gives a statement to the Equal Employment Opportunity Commission in regards to an EEOC charge of racism by Dean Steadman filed by another ECE Department professor, Dr. Alkhatib.

10. 2009 - El-Saba and Tom Thomas, "the only native-born ECE faculty member when Dean Steadman arrived, were hired at about the same time, paid about the same, were of the same rank, and at least equal in performance." Nevertheless, Dean Steadman gave Thomas three consecutive raises larger that ones given El-Saba. By 2009, Thomas's yearly salary was $93,000, while El-Saba's was $76,600.

11. February 2010 - El-Saba was nominated for the College of Engineering's annual Excellence in Research Award. After nominations were closed, El-Saba attempted to verify with a member of the award committee that he was the only nominee for the award (which he claims "he had been previously told" by unidentified sources). The committee member, citing Dean Steadman's instructions, refused to discuss the matter.

12. April 23, 2010 - Dean Steadman announced at a meeting that the Excellence in Research Award was cancelled. El-Saba accused Dean Steadman of canceling the award because El-Saba was the only candidate and because Dean Steadman was trying to "take revenge" on him. Dean Steadman became angry and ended the meeting. Afterward, Dean Steadman andChairman Alam remain in the room, with Dean Steadman telling Chairman Alam, "I'll make it so tough on him he'll have to resign."

13. Fall 2010 - El-Saba complains about Dean Steadman's award cancelation and statement to Chairman Alam at the April 23, 2010 meeting to the Vice-President for Rearch and the University attorney. El-Saba advised Chairman Alam that he had done so.

14. 2010-2011 academic year - ECE Department faculty Dr. S. Alsharif, a naturalized citizen, and Sam Russ, a native-born American, applied for tenure and promotion. At the Department level, Alsharif was originally approved for tenure on a vote of 7-0, and Russ a vote of 6-1. However, Dr. Parker, another ECE faculty member, subsequently changed his vote in favor of tenure for Alsharif. El-Saba abstained from the new vote on Alsharif, thus resulting in a new vote of 5 - 1 in favor of Alsharif. El-Saba informed Chairman Alam and the chair of the College of Engineering's tenure and promotion (T&P) committee that he had abstained because he believed it was "illegal" to change the vote and because he believed Dr. Parker was supporting Dean Steadman's plan to change the demographics of the ECE Department. After Alsharif and Russ were both approved for promotion by the ECE Department, the matter went to the T&P committee, which consists of seven members, with three traditionally being selected by the Dean before the departments vote on tenure and promotion. Dr. Parker was appointed to the T&P committee by Dean Steadman after he changed his vote, and allthree of Dean Steadman's selections to the T&P committee were after the ECE Department vote. Alsharif was denied tenure on a 3-4 vote by the T&P committee and was also denied promotion, while Russ was approved for both.

15. Mid-2008 - mid-2010 - During the time El-Saba serves on the ECE Department's Search Committee, Dean Steadman intervenes on behalf of two native-born applicants (Tim Brothers and an unnamed "local applicant") but "never obo a native born" (given the context of this allegation (see Doc. 1 at 15, ¶ 70), the undersigned presumes El-Saba meant to write "never obo a non-native born"). In 2006-08, the Search Committee ranked the "Short Lists" of candidates for Dean Steadman. However, by late 2008, Dean Steadman directed the Committee to forward him "Short Lists" without ranking. Non-natives were hired as second choices or when vacancies unexpectedly became available. Offers would first go to native-born applicants, and then to non-native applicants if the native applicant declined. For instance, after Tim Brothers and applicant Baylis both declined offers, their positions were filled by non-native applicants. In Brothers's case, occurring in 2009-10, Brothers was called for an interview⁵ but told the Search Committee he was going elsewhere. When the Search Committee began considering the next applicant to make the offer to, Dean Steadman instructed the Committee not to drop Brothers's name because he was going to try to change his mind, "this notwithstanding a less than favorable studentevaluation." Dean Steadman later advised that he had failed to persuade Brothers to change his mind.

16. Fall 2010 - Alsharif files an EEOC charge alleging discrimination in the selection of Russ over himself. In 2011, El-Saba provides the EEOC a statement as to Alsharif's charge asserting that Dean Steadman was a racist due to his statements about changing the demographics of the ECE Department.

17. Fall 2011 - El-Saba asked for a teaching load reduction from three to two courses, and from five to four days, due to

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