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Queen's University
 

Okanagon College v Okanagan College Faculty Assn (Fu Grievance) [2007] BCCAAA No. 255.

What happens when a college refuses to consider a professor’s mental disability when assessing his English communication skills? 

Facts:

The grievor, Dr. George Fu, was a full time instructor in the Water Quality Technology Department of the Faculty of Engineering Technologies. He was hired in July 2003 by Okanagon University College as an assistant professor, tenure-track.  In 2004, Okanagon University College split into two institutions, the Okanagon College and British Columbia Okanagon University. This split caused Dr. Fu a great deal of disappointment and stress; his department was placed in the college and not the university. His employment was terminated in 2006.

When he was hired, his committee acknowledged that his English skills were very poor.  Dr. Fu was provided with an English tutor, a diminished teaching load and smaller class sizes. This accommodation did not seem to help.  In his first two years at the college, his scores on teaching evaluations were consistently poor; students were “dissatisfied” particularly with his ability to ask and answer questions clearly. In his first two annual reports, his dean underscored the College’s dissatisfaction with the professor’s teaching evaluations and insisted that he improve his English skills through enhanced tutoring and other English language training opportunities. Dr. Fu failed to take measures to improve his English; in fact he discontinued using his English tutor. Instead he concentrated on applying for (and receiving) grants submitting applications for jobs at the British Columbia Okanagon University.

In April 2005, the acting dean, after consulting with the union and the grievor, conducted a “summative evaluation”. His report concluded that Dr. Fu’s “effectiveness as a professor is severely compromised by broken English, mispronunciations and a lack of crucial vocabulary” and that he would not be recommending his promotion for candidacy to the president.  

Days after sending the report to Dr. Fu, the dean received a call from the grievor’s doctor (April 2005) explaining that his patient was suffering from severe depression and lowered cognitive function and was therefore unable to attend work. Before going on sick leave, he was called to a meeting with the union president and the dean in which they agreed to extend Dr. Fu’s probation for one year. The agreement stated that Dr. Fu would be recommended for a promotion (2-year appointment candidacy) on condition that his scores on the student evaluations reached a given “acceptable” level overall and specifically on questions relating to his ability to ask and answer questions clearly and that he do well on two summative evaluations conducted in the Fall and Winter Semesters.

After a month’s absence, Dr. Fu returned to work with a medical note indicating that while he was allowed to attend work; his doctor recommended that he not yet return.  Over the summer months, he saw a psychiatrist who recommended that he not teach in the fall. Dr. Fu was too afraid to take more time off, given the memorandum of agreement. His performance that year was poor. His fall and winter student and summative evaluations did not meet the standard agreed upon in the Memorandum of Agreement.  The report written by the associate dean in April 2006 stated that “both the choppy style in presentation and the language deficiencies are highly detrimental to a satisfactory learning experience”. It concluded that “Dr. Fu is not suited for a teaching position at Okanagan College.” (40).

Before making its final decision on Dr. Fu’s future (July 2006), the College received (May 2006) a letter from Dr. Fu’s psychiatrist who strongly advised the college to take into consideration Dr. Fu’s mental disability when making decisions about his future. She wrote that Dr. Fu suffered from a mental disability which “definitely affected his work performance over the past year, in particular, his productivity, and his ability to communicate with his students and colleagues.”  At arbitration the psychiatrist reinforced that while Dr. Fu’s disability did not affect his accent, it did negatively impact upon his ability to communicate with his students.

Arguments

The College believes that Dr. Fu’s disability is beside the point; it is not connected to his inability to communicate in English.  The Union, which had never been advised about Dr. Fu’s mental disability until after his termination, claimed that the Memorandum of Agreement constituted a discriminatory barrier to Dr. Fu based on mental disability because his severe depression prevented him from reaching the arbitrary standards set forth within.  

Issues

  1. Was the summative evaluation process flawed?
  2. Is there a prima facie case of discrimination?
  3. Was the Memorandum of Agreement discriminatory?
  4. Did the College attempt to accommodate Dr. Fu’s disability?
  5. Should Dr. Fu be reinstated in a continuing appointment? 

Decisions

  1. Yes
  2. Yes
  3. No
  4. No
  5. No

Reasoning:

  1. The process was flawed.  There were a number of breaches of the collective agreement; for example the dean relied in part upon informal interviews with students and colleagues and he failed to give Dr. Fu sufficient notice before attending his class in the winter semester. There were also breaches to the MOA itself; the dean failed to provide a report  at the end of the fall semester, as prescribed by the MOA, and the summative evaluations were not carried out according to plan (in the winter, only three classes were attended, in the fall, only one). 
  2. Dr. Fu had a mental disability (depression), suffered adverse consequences at work (termination), and his mental disability was a contributing factor (according to psychiatrist report).  
  3. The standards imposed upon Dr. Fu within the Memorandum of Agreement were “arbitrary and discriminated against Dr. Fu”. No other instructors at the college were required to achieve the score imposed on the complainant, and several professors received lower overall averages.  Furthermore, over time, there was improvement in Dr. Fu’s scores, how ever slight. 
  4. The college did nothing to accommodate Dr. Fu; in fact, it chose to ignore medical documentation both in April 2005 and in July 2006 indicating that a mental disability was affecting his ability to think and to communicate. It made no attempt to accommodate Dr. Fu (i.e. the MOA does not constitute an accommodation, as it is itself discriminatory)
  5. The Arbitrator agreed with the Union accepted that “the ability to communicate effectively in English is rationally connected to an individual’s performance as an instructor”.  It also accepted the College’s evidence that Dr. Fu spent his time applying for grants and university jobs rather than improving his English.  The Arbitrator therefore accepted the “College’s concern that Dr. Fu - absent his disability- might not be suitable for a candidacy appointment”. He ruled that the professor be reinstated on probation, that he start teaching only after he has provided a medical certificate showing that he is able to teach, and that his assessment be carried out by persons other than those involved with his summative evaluations (the dean and associate dean).

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000