Al-Hashimi v. Scott

756 F. Supp. 1567

Hassan M. AL-HASHIMI, Plaintiff, v. Dr. Julius S. SCOTT, Jr., The Board of Trustees of Paine College, individually and in their official capacities; Dr. Daniel A. Collins, Chair of the Board of Trustees of Paine College, Defendants.

No. CV 190-014.

United States District Court, S.D. Georgia, Augusta Division.

January 31, 1991.

COPYRIGHT MATERIAL OMITTED

John P. Batson, Augusta, Ga., for plaintiff.

William C. Reed, Mark C. Wilby, Fulcher, Hagler, Reed, Obenshain, Hanks & Harper, Augusta, Ga., for defendants.

ORDER

EDENFIELD, Chief Judge.

The plaintiff, Hassan M. Al-Hashimi ("Al-Hashimi"), complains that the defendants discriminated against him because of his race, age, and national origin in violation of 42 U.S.C. § 1981 (1988), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), and the Age Discrimination in Employment Act of 1967, ("ADEA") 81 Stat. 602 (1967), 29 U.S.C. §§ 621-34 (1988). He is also suing for breach of contract.¹

The defendant, Dr. Julius S. Scott, Jr. ("Scott"), has moved for summary judgment on the section 1981, Title VII and ADEA claims.² He has not moved for summary judgment on the breach of contract claim. For the reasons developed below, the Court GRANTS the defendant's motion for summary judgment based on section 1981, Title VII, and the ADEA. Although the other defendants, the Board of Trustees of Paine College and its Chair, did not join in the motion for summary judgment, the rationale for granting Scott's motion applies equally to them. Therefore, the Court grants summary judgment for all defendants on the plaintiff's section 1981, ADEA, and Title VII claims. The plaintiff's other claim is for breach of contract—a state law claim. Because there is no independent jurisdiction for this claim, the Court DISMISSES this claim without prejudice to the plaintiff's right to bring this claim in state court.

BACKGROUND³

The plaintiff, Hassan Mohammed Al-Hashimi, was born on June 22, 1922, in Baghdad, Iraq. From January 29, 1963, to May 1989, he worked as an instructor and an assistant professor at Paine College in Augusta, Georgia. For twenty-two years of his employment, Al-Hashimi was a tenured faculty member whose salary was negotiated yearly.

The defendant Julius S. Scott, Jr. became president of Paine College in August 1988. In the academic year 1988-1989, Scott implemented what he called a "full court press" initiative. The initiative was designed to improve the quality of instruction and education at Paine, and to renew the commitment of the staff to that purpose.

On February 20, 1989, Scott sent Al-Hashimi a letter informing him that the "full court press" had prompted reviews of faculty performance, and that reviews of Al-Hashimi's performance had revealed serious deficiencies: "You have not kept pace with the common syllabus,⁴ have not prepared well for classes, and ... you have been absent from class an inordinate number of times over several semesters." The letter continued, "if your performance does not improve significantly and immediately, you will not be reappointed as a member of the faculty.... If there is no significant change, there will be no alternative to your dismissal for cause." Copies of this letter were sent to Dean Roger Williams, Dean of Academic Affairs; Dr. Leslie K. Pollard, the chair of the social sciences division; and Dr. Albert Kitchen, the coordinator of the history department.

Al-Hashimi has submitted as an exhibit a letter he wrote to Dean Williams on February 26, 1989, asking for clarification of the notice he had received by the letter of February 20, 1989. He indicated: "I have requested several times that my evaluation be made by independent, professionally trained evaluators brought from outside of the college. I am willing to pay whatever expense is involved." The plaintiff met with Dean Williams and Scott on March 15, 1989, and perhaps on other days during this period.

Scott indicates that he met with Al-Hashimi several times after Scott's letter of February 20th to discuss his progress. Although he does not specifically recall, Scott admits that he may have referred to Al-Hashimi's accent in a discussion of students' difficulties in understanding the plaintiff. Al-Hashimi recalls a more direct reference. In his deposition, Al-Hashimi was asked how his age came up in conversation with Scott. He replied:

That's the first thing he said to me. "Mr. Al-Hashimi, you are 60-some-years old, and you are from the Middle East. You talk differently from the other," or words something to that effect, indicating that the students have a problem trying to understand my accent.⁵

Scott denies making these statements.

Scott claims that the college reviewed the classroom performance of all faculty, including Al-Hashimi, during the spring semester of 1989. A letter from Kitchen to Scott, written on March 28, 1989, and submitted to the Court by the plaintiff, indicates that Al-Hashimi's course proceeded too slowly and that "it is difficult most times to make the correct connections in his class." Scott swears in his affidavit that he attended one of Al-Hashimi's classes in late spring 1989, and that the "plaintiff was well behind the common syllabus, did not appear well prepared, and was having difficulty communicating the subject matter he was presenting."

Al-Hashimi claims that no other faculty were evaluated about whether they kept up with a common syllabus, and he believes there was substantial controversy about whether the syllabus was reasonable.⁶ It was apparently adapted from a two semester course into the one semester course taught by Al-Hashimi and Kitchen. Indeed, in 1984, Kitchen memorialized a conversation he had with Al-Hashimi about that course. Kitchen acknowledged that teaching the subject in only one semester is "possible only with a great deal of work and preparation on our part.... I shall continue to try to press for a reinstitution of this course on a two-semester basis. Until then we must, professionally and morally, do our best to fulfill our responsibility in this matter." Scott conceded in his deposition that the administration does not evaluate all faculty on adherence to common syllabi. Instead, these evaluations are only done if someone is known to deviate substantially from a course syllabus.

On May 10, 1989, Leslie J. Pollard sent a memorandum to Scott suggesting that Scott inform Al-Hashimi that he would be offered a contract to teach for one more year, but that the contract would not be renewed. Pollard wrote, "Operationalizing incompetence and neglect of duty is no easy task despite the consensus that Mr. Hashimi is probably guilty of some things that fall into these categories. The added difficulty, it seems to me, is whether these misdoings constitute `cause' in a legal sense."

On May 12, 1989, Scott sent Al-Hashimi a letter notifying him, "You still have not kept pace with a common syllabus, and your preparation and performance have not improved significantly." The letter indicated the college's intention to terminate Al-Hashimi, but to allow him to teach part-time during the following year. The salary offered was $8,737.50. Mr. Al-Hashimi's affidavit indicates that his former salary was slightly over $17,000. Scott did not offer Al-Hashimi a hearing on the matter, nor did Al-Hashimi request one. No hearing was conducted.

Attached to the letter was a formal offer of the part-time appointment. This attachment contained a signature line for Al-Hashimi to sign, indicating his acceptance of the offer. The letter requested the signature by May 22, 1989. Al-Hashimi did not sign the contract, however.

On July 12, 1989, Scott sent Al-Hashimi another letter informing him: "Inasmuch as you have failed to return the contract, I have no alternative but to negate it and authorize the Dean for Academic Affairs to seek someone to teach the load assigned to you." Scott indicates that the college did not hire a new teacher to replace Al-Hashimi, but reassigned Al-Hashimi's teaching load to Dr. Claudia Jones, a black female, and Dr. Albert Kitchen, a white male.

According to the defendants, five other faculty members received letters similar to the one Al-Hashimi received on February 20, 1989. Three of those professors, Dr. J.C. Taylor, a black male, Dr. Don F. Gonella, a white male, and Dr. A. Ali Syed, an Indian male, continue working at the college. The defendants maintain that these three men responded to the letters by improving their performances. Two black, non-tenured employees received similar letters and were terminated at the end of the academic year. Scott states that these two teachers were fired because they did not improve their performance.

The plaintiff filed a complaint with the Equal Employment Opportunities Commission ("EEOC") more than 180 days before he filed this lawsuit. He received a right to sue letter from the EEOC on November 20, 1989. He filed this action on January 19, 1990.

ANALYSIS

I. Standards for Summary Judgment

"The purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. National Wildlife Fed'n, ___ U.S. ___, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). Thus, summary judgment is appropriate where the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which...