Faki v. University of Alabama System et al

Filing 9

MEMORANDUM OPINION AND ORDER For the reasons noted within, UAB's motion to dismiss (Doc. 7) is GRANTED. This action will be dismissed with prejudice unless Faki files an amended complaint curing the within-mentioned deficiencies by April 18, 2016. Signed by Judge William M Acker, Jr on 4/4/16. (SAC )

FILED
2016 Apr-04 PM 02:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BELITA A. BROOKS FAKI,

}
}
Plaintiff,
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}
v.
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}
UNIVERSITY OF ALABAMA SYSTEM, }
et al.,
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}
Defendants.
}

CIVIL ACTION NO.
2:16-cv-153-WMA

MEMORANDUM OPINION AND ORDER
Plaintiff Belita A. Brooks Faki (“Faki”) initiated this pro
se employment discrimination case against defendants University of
Alabama System and University of Alabama at Birmingham College of
Arts and Sciences (collectively “UAB”) on January 27, 2016. Her
complaint references many different statutes, including Title VII,
42

U.S.C.

§

1981,

the

Americans

with

Disabilities

Act,

the

Rehabilitation Act, the Age Discrimination in Employment Act, and
the Alabama Age Act, though she only asserts two causes of action
against UAB. The first is styled “Disability, Retaliation, Pay and
Other Adverse Terms, Conditions & Privileges, 42 U.S.C. §§ 1981,
2000

et

seq.”

The

second

is

styled

“Racial

Discrimination

Retaliation in Violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq.” (Doc. 1 at 6). UAB has moved to
dismiss the action. The court agrees with UAB that Faki’s complaint
is deficient but will grant her an opportunity to amend it.
UAB first argues that Count One fails because 42 U.S.C. § 1981
1

and Title VII provide no remedy for disability discrimination, a
correct

assertion.

“Section

1981

prohibits

intentional

race

discrimination in the making and enforcement of public and private
contracts, including employment contracts.” Ferrill v. Parker Grp.,
Inc., 168 F.3d 468, 472 (11th Cir. 1999). It also encompasses
retaliation claims. CBOCS W., Inc. v. Humphries, 553 U.S. 442
(2008). It does not, however, prohibit disability discrimination.
Neither does Title VII, which only prohibits discrimination based
on

an

individual’s

origin.”

42

U.S.C.

“race,
§

color,

religion,

2000e-2(a)(1).

Count

sex,
One

or
is

national
therefore

deficient as currently pled.1
While not specifically invoking them in Count One, Faki’s
complaint also mentions the ADA and the Rehabilitation Act, two
statutes that do prohibit disability discrimination. UAB, however,
is immune from employment discrimination claims brought under the
ADA. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
Faki, though, may be able to assert her claims of disability
discrimination under the Rehabilitation Act, and the court will
provide her an opportunity to do so.
UAB next argues that Count Two is deficient because her race
discrimination and retaliation claims fail Title VII’s exhaustion
requirement. “Prior to filing a Title VII action . . . a plaintiff

1

To the extent Count One asserts a retaliation claim under §
1981, that claim fails because UAB is immune, as described below.
2

first must file a charge of discrimination with the EEOC.” Gregory
v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).
“[A] ‘plaintiff's judicial complaint is limited by the scope of the
EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination.’” Id. at 1280 (quoting Alexander v.
Fulton

Cnty.,

“Allegations
essential

Ga.,

207

F.3d

1303,

of

new

acts

of

basis

for

the

requested

1332

(11th

discrimination,
judicial

Cir.

offered
review

2000)).
as

the

are

not

appropriate.” Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)
(quoting Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980)).
In this case, Faki filed a charge of discrimination with the
EEOC, but she only complained of disability discrimination, not
race discrimination or retaliation. (Doc. 7 at 12-13). She only
checked the box for disability discrimination, claimed only that
she was discriminated against because of her disability, and
alleged

no

retaliation.

facts
Thus,

that
her

would

suggest

Title

VII

race
race

discrimination
discrimination

or
and

retaliation claims are unexhausted.
While Faki’s complaint also invokes § 1981, a statute that
prohibits race discrimination and retaliation but does not require
presentation of her claims to the EEOC, see Price v. M & H Valve
Co., 177 F. App’x 1, 9 (11th Cir. 2006), construing Count Two as a
§ 1981 claim would not avoid dismissal. Section 1981 does not
provide a cause of action against state actors such as UAB.
3

Instead, “[42 U.S.C.] § 1983 constitutes the exclusive remedy
against state actors for violations of the rights contained in §
1981.” Butts v. Cty. of Volusia, 222 F.3d 891, 893 (11th Cir.
2000). UAB, however, is immune from suit under § 1983. Strickland
v. Bd. of Trs. of Univ. of Ala., No. 2:14-cv-1389-WMA, 2014 WL
6749019, at *2 (N.D. Ala. Dec. 1, 2014).
Accordingly, UAB’s motion to dismiss (Doc. 7) is GRANTED. The
above-entitled action will be dismissed with prejudice unless Faki
files an amended complaint curing the above-mentioned deficiencies
by April 18, 2016.
DONE this 4th day of April, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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