IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

AED EL-SABA, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00087-KD-N

)

UNIVERSITY OF SOUTH ALABAMA, )

Defendant. )

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.

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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. 

 1 In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim upon 

which relief can be granted,” the Court construes the complaint in the light most favorable 

to the plaintiff, “accepting all well-pleaded facts that are alleged therein to be true.” 

Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013) (citing Bickley v. 

Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006)). However, “ ‘the tenet that a 

court must accept as true all of the allegations contained in a complaint is inapplicable to 

legal conclusions.’ ” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

2 El-Saba’s Complaint never actually specifies in what capacity he was employed. However, 

the University identifies him as having been a professor in its briefing, and the Complaint’s 

allegations indicate this is the case.

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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, ElSaba 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 leave 

 3 El-Saba alleges that Dean Steadman receives a copy of all ECE Department minute 

meetings and would therefore be on notice of El-Saba’s various complaints raised at these 

meetings through the minutes.

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between 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 in 

 4 El-Saba claims that, before Dean Steadman instituted the H1B visa policy and the 

permanent-residents-only policy, the “ratio of applicants for ECE positions was three-to-one 

(or more) in favor of non-native applicants...” El-Saba does not indicate what the ratio 

changed to after instituting these policies or whether their alleged “abandonment” reset the 

status quo. He also claims that when Dean Steadman was hired, the ratio of faculty in the 

ECE Department was 10-1 in favor of non-native-born professors; by 2012, it was 8 to 3.

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a 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, ElSaba 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 and 

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Chairman 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 VicePresident 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 all 

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three 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 student 

 5 El-Saba also alleges that Brothers “possibly was given a verbal offer.” Speculation is not 

accepted as fact.

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evaluation.” 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 El-Saba’s wife’s chemotherapy 

treatments on Fridays. Dean Steadman granted the reduction with a 20% 

pay reduction by charging El-Saba’s “accumulated FMLA.”

In May 2012, El-Saba requested a one-year unpaid medical leave, from 

August 2012 through August 2013, for the purpose of caring for his wife and for 

himself after he experienced a heart attack in November 2011.6 In July 2013, while 

still on unpaid medical leave, El-Saba experienced another, “massive heart attack” 

while visiting family in Dubai. Both his previous doctor in the United States and 

his Dubai doctor advised him against returning to the United States and to instead 

seek immediate treatment locally. After undergoing stent surgery, El-Saba 

contacted Chairman Alam on July 22, 2013, requesting an extension of unpaid leave 

for two additional semesters, through May 2014. At Chairman Alama’s request, 

that same day El-Saba submitted a form requesting extension of his medical leave. 

 6 Chairman Alam approved the leave “in the absence of” Dean Steadman, which Dean 

Steadman complained about to Chairman Alam for “grant[ing] it without his input.”

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The following day, Chairman Alam orally approved the request for an extra year of 

leave and forwarded the request to Dean Steadman, who responded with an 

objection on August 1, 2013. 

Dean Steadman demanded that El-Saba inform him within 24 hours whether 

he would be on campus August 15, 2013, the beginning of the school year. El-Saba 

advised Dean Steadman that, because of a national holiday in Dubai, he would be 

unable to answer until August 5, after he could consult his local doctor. On August 

2, El-Saba offered to return the second semester of the 2013-2014 school year, 

pending medical advice. Dean Steadman responded that he would be away from 

August 3 through August 13 and that El-Saba would have to communicate with 

someone else. Dean Steadman did not identify with whom he wanted El-Saba to 

communicate in his absence; El-Saba assumed he was to contact Dr. David Johnson, 

Senior Vice-President for Academic Affairs (“Vice President Johnson”). 

On August 5, El-Saba informed Dean Steadman, Vice-President Johnson, and 

Chairman Alam that “he needed to keep his three apointments in Dubai and to be

closely monitored in between” and would not be able to return August 15, though he 

would be available “shortly after his second appointment on November 11, 2013.” 

On August 6, Vice President Johnson, writing on behalf of Dean Steadman, advised 

El-Saba that his request for one-year extended leave would not be granted. Vice 

President Johnson required El-Saba to submit, no later than August 12, a letter 

from his doctor stating that he could return to work on January 2, 2014, in order for 

El-Saba’s alternative request for one-semester’s extended leave to be considered.

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El-Saba requested a medical certification letter from his doctor on August 12 

(Dubai time, and the first working day after the holiday) and was advised that it 

would not be ready until the next day. The certificate advising that El-Saba was fit 

to resume his duties by January 2, 2014, was received by El-Saba and sent to Vice 

President Johnson, Dean Steadman, and Chairman Alam on August 13 (Dubai 

time) so that it was received by them on August 12 (U.S. time). El-Saba also 

informed them that a confirming letter with more details about his surgeries and 

required follow-up appointments would follow with 48 hours. This confirming letter 

was sent August 15 (Dubai time), so that it was received by the University officials 

August 14 (U.S. time).

On August 20, Dean Steadman emailed El-Saba that “the summary of the 

second letter stated [El-Saba] was fit for duty as of the present and was under no 

travel restrictions, so that a leave of an entire semester ‘appears unnecessary and 

would not be considered reasonable.’ Because it was now past the reporting date of 

August 15, he considered that [El-Saba] had resigned and was therefore 

terminated.” (¶ 61). On August 26, El-Saba requested an appointment with Dean 

Steadman in Alabama after his first check-up in order to appeal the termination. 

The meeting was set for on or about September 18, 2013. There, El-Saba explained 

that the doctor who wrote the second letter had not known El-Saba would be 

working in America. Three days later, Dean Steadman advised that the appeal was 

denied.

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II. Causes of Action

El-Saba initiated this civil action on February 18, 2015, by filing a Complaint

(Doc. 1) with the Court alleging three causes of action against the University:7

Count 1 – Retaliatory termination in violation of Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 

1991, 42 U.S.C. § 1981a (“Title VII”)

Count 2 – Disparate treatment (termination) on the basis of national origin

in violation of Title VII.8

 7 Generally, a “document filed pro se is to be liberally construed, and a pro se complaint, 

however inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation and 

quotations omitted). El-Saba filed his Complaint pro se. However, approximately two 

months later, on April 7, 2015, El-Saba’s current counsel filed for permission to appear pro 

hac vice (Doc. 2), which was granted on April 30 (see Doc. 7). Counsel thereafter sent a 

waiver of service to the University, which executed the waiver on May 15 (see Doc. 9-1). 

The University filed its motion to dismiss approximately two months later, on July 8. (Doc. 

11). Current counsel has had ample opportunity to file an amended complaint as a matter 

of course on El-Saba’s behalf, up to within 21 days of the filing of the present motion to 

dismiss. See Fed. R. Civ. P. 15(a)(1)(B). Counsel has not done so and has instead defended 

the sufficiency of the Complaint (or, at least, Counts 1 and 2) in response to the University’s 

motion to dismiss, indicating it is counsel’s professional judgment that the Complaint is 

adequately drafted as-is. Moreover, El-Saba has not argued in his counseled response brief 

that his Complaint is entitled to the liberal construction afforded pro se litigants. Thus, the 

undersigned finds that the “less stringent” standard normally afforded pro se litigants

should not be applied to El-Saba’s Complaint.

8 El-Saba’s Complaint, as well as both parties in their briefing on the motion to dismiss, 

have characterized El-Saba’s termination as a “termination by resignation.” Regardless of 

how Dean Steadman may have chosen to characterize El-Saba’s failure to report to work 

August 15, 2013, the factual allegations in the Complaint show that the adverse 

employment action at issue is, in substance, a termination, not a resignation. To the extent 

El-Saba is attempting to assert a claim for “constructive discharge” in either Count 1 or 

Count 2, such a claim is neither specifically alleged nor factually supported in the 

Complaint. See Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) 

(“A constructive discharge occurs when a discriminatory employer imposes working 

conditions that are so intolerable that a reasonable person in the employee’s position would 

have been compelled to resign.” (quotation omitted)); Hipp v. Liberty Nat. Life Ins. Co., 252 

F.3d 1208, 1231 (11th Cir. 2001) (per curiam) (noting that “[t]he threshold for establishing 

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Count 3 – Failure to accommodate in violation of the Rehabilitation Act of

1973, 29 U.S.C. § 701.

III. Legal Standards

To withstand Rule 12(b)(6) scrutiny and satisfy Rule 8(a), a plaintiff 

must plead “enough facts to state a claim to relief that is plausible on 

its face,” so as to “nudge[ ][its] claims across the line from conceivable 

to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U .S. 662, 678, 129 S. Ct. 1937, 173 L.

Ed. 2d 868 (2009) (citation omitted). “This necessarily requires that a 

plaintiff include factual allegations for each essential element of his or 

her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 

(11th Cir. 2012). Thus, minimum pleading standards “require [ ] more 

than labels and conclusions, and a formulaic recitation of the elements 

of a cause of action will not do.” Twombly, 550 U.S. at 555. As the 

Eleventh Circuit has explained, Twombly/Iqbal principles require that 

a complaint's allegations be “enough to raise a right to relief above the 

speculative level.” Speaker v. U.S. Dep't of Health and Human Services 

Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th 

Cir. 2010) (citations omitted). “To survive a 12(b)(6) motion to dismiss, 

the complaint does not need detailed factual allegations, ... but must 

give the defendant fair notice of what the plaintiff's claim is and the 

grounds upon which it rests.” Randall v. Scott, 610 F.3d 701, 705 (11th 

Cir. 2010) (citations and internal quotation marks omitted).

Cochran v. Southern Co., Civil Action No. 14-0569-WS-N, 2015 WL 3508018, at *1 

(S.D. Ala. June 3, 2015). “The plausibility standard is not akin to a probability 

requirement, but it asks for more than a sheer possibility that a defendant has 

acted unlawfully. Where a complaint pleads facts that are merely consistent with a 

defendant's liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotations omitted).

 

constructive discharge ... is quite high” and “higher than the standard for proving a hostile 

work environment”).

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“[O]nly a complaint that states a plausible claim for relief survives a motion to 

dismiss. Determining whether a complaint states a plausible claim for relief [is] a 

context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense. But where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at

679 (quoting Fed. R. Civ. P. 8(a)(2)) (citations omitted). “Importantly, ... courts may 

infer from the factual allegations in the complaint ‘obvious alternative 

explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the 

plaintiff would ask the court to infer.” Am. Dental Ass'n, 605 F.3d at 1290 (quoting 

Iqbal, 556 U.S. at 682).

Finally, the Court looks to the pleading as a whole in determining whether 

the “plausibility standard” has been satisfied. See Speaker, 623 F.3d at 1382 

(“Reading Speaker's Amended Complaint as a whole, we conclude that it both 

alleges the requisite statutory elements and marshals ‘enough facts to state a claim 

to relief that is plausible on its face.’ Twombly, 550 U.S. at 570, 127 S. Ct. at 

1974.”); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 

(11th Cir. 2005) (per curiam) (stating that, in a Rule 12(b)(6) context, “[w]e read the 

complaint as a whole”). The First Circuit Court of Appeals has elaborated on this 

principle, holding:

The question confronting a court on a motion to dismiss is whether all

the facts alleged, when viewed in the light most favorable to the 

plaintiffs, render the plaintiff's entitlement to relief plausible. See 

[Twombly, 550 U.S.] at 569 n.14, 127 S. Ct. 1955; Braden v. Wal–Mart 

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Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (explaining that “the 

complaint should be read as a whole, not parsed piece by piece to 

determine whether each allegation, in isolation, is plausible”). No 

single allegation need “lead to the conclusion”—in the district court's 

words—of some necessary element, provided that, in sum, the 

allegations of the complaint make the claim as a whole at least 

plausible. See Sepúlveda–Villarini[v. Dep’t of Educ. of Puerto Rico], 628 

F.3d [25,] 29[ (1st Cir. 2010)] (“The make-or-break standard ... is that 

the combined allegations, taken as true, must state a plausible, not a 

merely conceivable, case for relief.”[ (citing Twombly and Iqbal)]) 

(emphasis added). Indeed, the Supreme Court has suggested that 

allegations that would individually lack the heft to make a claim 

plausible may suffice to state a claim in the context of the complaint's 

other factual allegations. See Twombly, 550 U.S. at 557, 127 S. Ct. 

1955 (“An allegation of parallel conduct ... gets the complaint close to 

stating a claim, but without some further factual enhancement it stops 

short of the line between possibility and plausibility.”).

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14-15 (1st Cir. 2011). Accord, e.g., 

Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (“We emphasize 

that the complaint must be read as a whole. As we have explained, there need not 

be a one-to-one relationship between any single allegation and a necessary element 

of the cause of action. For pleading purposes, circumstantial evidence often suffices 

to clarify a protean issue.” (citations and quotations omitted)); Rodriguez-Vives v. 

Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d 278, 283 (1st Cir. 2014) (“We 

have also recently cautioned that some courts apply the plausibility standard ‘too 

mechanically’ and fail to read complaints ‘as a whole.’ ” (quoting García–Catalán,

734 F.3d at 101, 103)).9

 9 The University has attached two exhibits to its motion to dismiss, consisting of (1) an 

email from El-Saba to Dean Steadman dated August 5, 2015, and (2) the second letter from 

El-Saba’s Dubai physician that was sent to the University on August 14, 2013. (Docs. 12-1 

and 12-2). Not to be outdone, El-Saba has attached thirteen exhibits to his response, 

consisting of various additional emails relating to El-Saba’s attempt to extend his medical 

leave in August 2013 and his subsequent termination. (Doc. 21-1). A court may, in certain 

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IV. Analysis

A. Failure to Accommodate under Rehabilitation Act (Count 3)

“The Rehabilitation Act prohibits recipients of federal financial assistance 

from discriminating against individuals with disabilities.” Garrett v. Univ. of Ala. 

at Birmingham Bd. of Trs., 507 F.3d 1306, 1310 (11th Cir. 2007) (citing Bragdon v. 

Abbott, 524 U.S. 624, 632 (1998)). To establish a prima facie case of discrimination 

under the Rehabilitation Act, El-Saba must show that (1) he had a disability; (2) he 

was otherwise qualified for the position; and (3) he was subjected to unlawful 

discrimination as the result of his disability. Id. El-Saba accuses the University of 

violating the Rehabilitation Act by failing “to accommodate [him] first in August 

and then in September 2013 with medical leave of another semester (or at least 

until November 15)” and for terminating him. (Doc. 1 at 20, ¶ 92). 

The University argues in its initial brief that Count 3 should be dismissed 

because El-Saba has not alleged facts plausibly suggesting that he is disabled for 

purposes of the Rehabilitation Act. In response, El-Saba expressly states that he 

“abandons Count III – Failure to accommodate.” (Doc. 21 at 1 n.1). In reply, the 

University urges the Court to dismiss Count 3 with prejudice as abandoned.

Previously, Chief Judge Steele, after conducting an exhaustive analysis of the 

issue of whether a plaintiff abandons a claim by not addressing a motion to dismiss 

that claim in response, held that “until the Eleventh Circuit (or Supreme Court) 

 

circumstances, properly consider exhibits not attached to a pleading when ruling on a 

motion to dismiss. See, e.g., Speaker, 623 F.3d at 1379. However, the undersigned has 

found it unnecessary to go outside “the four corners of the complaint” in ruling on the 

present motion and thus need not determine whether the exhibits may be considered. Id.

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speaks more clearly to the issue or a sister Court (or litigant) provides a more 

compelling rationale, the Court will not treat a claim as abandoned merely because 

the plaintiff has not defended it in opposition to a motion to dismiss.” Gailes v. 

Marengo Cnty. Sheriff's Dep't, 916 F. Supp. 2d 1238, 1243 (S.D. Ala. 2013). 10 See 

also Cochran v. Southern Co., Civil Action No. 14-0569-WS-N, 2015 WL 3508018, at 

*1 (S.D. Ala. June 3, 2015) (Steele, C.J.) (reaffirming Gailes). Thus, the 

undersigned instead “will review the merits of the defendant's position and, if it is 

clearly incorrect or inadequate to satisfy the defendant's initial burden, will

[recommend ]den[ial of] the motion despite the plaintiff's failure to respond. If, 

however, the defendant's presentation is adequate to satisfy its initial burden, the 

[undersigned] will not [recommend ]den[ial of] the motion based on arguments the 

 10 In a footnote immediately following this quoted language, Gailes stated: “The Court 

will of course treat such a claim as abandoned if the plaintiff has clearly manifested an 

intention to abandon it, as by express withdrawal or by a statement she is unopposed to the 

defendant's motion.” 916 F. Supp. 2d at 1243 n.11. The University cites this footnote from 

Gailes in urging the Court to dismiss Count 3 as abandoned. 

It goes without saying that “[t]he opinion of a district court carries no precedential 

weight, even within the same district.” United States v. Cerceda, 172 F.3d 806, 812 n.6 

(11th Cir. 1999) (en banc) (per curiam). Moreover, Gailes’s statement in footnote 11 is dicta. 

The statement is certainly persuasive, and at least one circuit court of appeals agrees, 

though in an non-precedential unpublished opinion. See Gonzalez v. Aztex Advantage, 547 

F. App'x 424, 425-26 (5th Cir. Oct. 7, 2013) (per curiam) (“The Defendants filed a motion to 

dismiss, which Gonzalez's attorney responded to by stating that Gonzalez did ‘not object’ to 

the dismissal of his equitable relief claim under § 1132(a)(3). The district court granted the 

motion to dismiss on the § 1132(a)(3) claim only, stating that the dismissal was ‘by 

agreement’ and that Gonzalez had abandoned the claim ... [T]he district court properly 

construed Gonzalez's non-objection as an agreement to dismiss his claim or an 

abandonment of his claim.”). However, El-Saba’s Rehabilitation Act claim in Count 3 can 

dismissed on the merits under Rule 12(b)(6) without undue difficulty.

Additionally, the undersigned cannot construe El-Saba’s abandonment of Count 3 as 

a motion to voluntarily dismiss this claim under Federal Rule of Civil Procedure 41(a)(2). 

See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“Rule 41 allows 

a plaintiff to dismiss all of his claims against a particular defendant; its text does not 

permit plaintiffs to pick and choose, dismissing only particular claims within an action. A 

plaintiff wishing to eliminate particular claims or issues from the action should amend the 

complaint under Rule 15(a) rather than dismiss under Rule 41(a).” (quotation omitted)).

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17

plaintiff could have made but by silence elected not to raise.” Gailes, 916 F. Supp. 

2d at 1243-44.

The Rehabilitation “Act defines ‘disability’ to mean ‘a physical or mental 

impairment that substantially limits one or more major life activities.’ ” Garrett, 

507 F.3d at 1310 (quoting 29 U.S.C. § 705(9)(B)). Courts must “strictly interpret the 

terms ‘major life activities’ and ‘substantially limits’ so as ‘to create a demanding 

standard for qualifying as disabled ....’ ” Id. at 1311 (quoting Toyota Motor Mfg., Ky., 

Inc. v. Williams, 534 U.S. 184, 197 (2002)). “[M]ajor life activities mean ‘functions 

such as caring for oneself, performing manual tasks, walking, seeing, hearing, 

speaking, breathing, learning, and working.’ 29 C.F.R. § 1630.2(i) ... [T]his list is 

not exhaustive, but applies to ‘those basic activities that the average person in the 

general population can perform with little or no difficulty.’ 29 C.F.R. App. § 

1630.2(i).” Id. “ ‘[T]emporary, non-chronic impairments of short duration, with 

little or no long term or permanent impact, are usually not disabilities. Such 

impairments may include, but are not limited to, broken limbs, sprained joints, 

concussions, appendicitis, and influenza.’ ” Id. (quoting 29 C.F.R.App. § 1630.2(j)).

El-Saba’s Complaint does not allege facts plausibly indicating that his series 

of heart attacks rendered him “disabled” within the meaning of the Rehabilitation 

Act.11 El-Saba admits that his own physician “advised that he was fit to resume his 

duties by January 2, 2014[,]” and he himself believed he could be available to return 

 11 His allegation that “he was disabled within the meaning of the Rehabilitation Act” (Doc. 1 

at 19, ¶ 91) is exactly the sort of “formulaic recitation of an element” that, standing alone, 

does not sufficiently plead a cause of action. See Twombly, 550 U.S. at 555.

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18

to work “shortly after his second appointment on November 11, 2013.” (Doc. 1 at 11

- 12, ¶¶ 56, 59). These facts do not plausibly suggest that El-Saba was 

“substantially limited” in a “major life activity” (in particular, “work”), and, in 

abandoning this claim, El-Saba has given the undersigned no reason to conclude 

otherwise. Accordingly, the undersigned RECOMMENDS that the University’s 

motion to dismiss (Doc. 11) be GRANTED as to Count 3.

B. Title VII Disparate Treatment Claim (Count 2)

Title VII provides that it is unlawful for an employer to discriminate against 

an employee because of the employee’s national origin. See 42 U.S.C. § 2000e–

2(a)(1). “Although a Title VII complaint need not allege facts sufficient to make out 

a classic McDonnell Douglas[12] prima facie case, Swierkiewicz v. Sorema N.A., 534 

U.S. 506, 511, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002), it must provide ‘enough 

factual matter (taken as true) to suggest’ intentional [unlawful] discrimination. See 

Twombly, 127 S. Ct. at 1965.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 

974 (11th Cir. 2008) (alterations added). Recently, the Eleventh Circuit Court of 

Appeals expressly held that a district court applies the wrong legal standard in 

assessing the sufficiency of a Title VII complaint by determining whether the 

plaintiff has made out a prima facie case of discrimination under McDonnell 

Douglas, rather than applying the Iqbal/Twombly plausibility standard. Surtain v. 

Hamlin Terrace Found., 789 F.3d 1239, 1245-46 (11th Cir. June 16, 2015) (per 

curiam) (emphasizing that “McDonnell Douglas’s burden-shifting framework is an 

evidentiary standard, not a pleading requirement” (citing Swierkiewicz, 534 U.S. at 

 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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510)).13 See also Swierkiewicz, 534 U.S. at 511 (“This Court has never indicated 

that the requirements for establishing a prima facie case under McDonnell Douglas

also apply to the pleading standard that plaintiffs must satisfy in order to survive a 

 13 Surtain addressed an appeal from a district court’s denial of a motion for default 

judgment under Federal Rule of Civil Procedure 55 and sua sponte dismissal of a complaint 

with prejudice, rather than a motion to dismiss under Rule 12(b)(6). However, Surtain

expressly held that the standard for entering a default judgment is “akin to that necessary 

to survive a motion to dismiss for failure to state a claim” and that “[c]onceptually, then, a 

motion for default judgment is like a reverse motion to dismiss for failure to state a claim.” 

789 F.3d at 1245. The U.S. District Court for the Middle District of Georgia has begun 

applying Surtain to Rule 12(b)(6) motions. See Brock v. Columbus Consol. Gov't, No. 4:14-

CV-264 CDL, 2015 WL 3970728, at *4 (M.D. Ga. June 30, 2015) (Land, C.J.); EEOC v. J & 

R Baker Farms, LLC, No. 7:14-CV-136 HL, 2015 WL 4753812, at *3 (M.D. Ga. Aug. 11, 

2015) (Lawson, J.); Green v. Savage of Georgia, LLC, No. 1:14-CV-132 (LJA), 2015 WL 

5120241, at *3 (M.D. Ga. Aug. 27, 2015) (Abrams, J.).

Other circuit courts of appeal have expressly held that rigid application of the 

McDonnell Douglas “prima facie case” test is inappropriate in the context of Rule 12(b)(6). 

See Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (“In rejecting all but two 

of Carlson's [Title VII ]claims for failing to state a plausible claim for relief, the district 

court applied the wrong standard. The court repeatedly faulted her for not providing 

‘evidence’ in support of her claims, though of course evidence is not required at the pleading 

stage. And the court relied on summary judgment decisions that addressed not the content 

of complaints but the evidence needed to take a claim to a jury. The judicial pen may 

sometimes slip inadvertently in these ways, but in this case the slips signaled accurately 

that the court had applied too demanding a standard. We assess Carlson's claims under the 

proper standard for Rule 12(b)(6) determinations.” (citations omitted)); Garayalde-Rijos v. 

Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014) (“[T]he district court faulted 

Garayalde–Rijos for not stating specific facts that connect the alleged mistreatment after 

she was hired to the filing of her EEOC complaint. In so doing, the district court treated the 

prima facie case, a flexible evidentiary standard, as a rigid pleading standard, requiring 

Garayalde–Rijos to establish each prong of the prima facie case to survive a motion to 

dismiss. This was an error of law. []We have explicitly held that plaintiffs need not plead 

facts in the complaint that establish a prima facie case under Title VII nor must they allege 

every fact necessary to win at trial.” (citation and quotations omitted)); Crowder v. Railcrew 

Xpress, 557 F. App'x 487, 492 (6th Cir. Feb. 27, 2014) (per curiam) (unpublished) (“[W]e 

must decide whether the district court properly dismissed Crowder’s [Title VII ]retaliation 

claim at the motion-to-dismiss stage. The district court held that Crowder's complaint ‘f[ell] 

short of her burden to establish a prima facie case for her retaliation claims.’ This was error. 

As this court recently made clear, a ‘district court's requirement that [a plaintiff's] 

complaint establish a prima facie case under McDonnell Douglas and its progeny is 

contrary to Supreme Court and Sixth Circuit precedent.’ Keys v. Humana, Inc., 684 F.3d 

605, 609 (6th Cir. 2012). That is because the prima facie case under McDonnell Douglas is 

an evidentiary standard, not a pleading requirement. Id. []The correct standard is the 

‘plausibility’ standard in Twombly and Iqbal.”). 

.

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motion to dismiss.”); Castillo v. Allegro Resort Mktg., 603 F. App'x 913, 919 (11th 

Cir. Mar. 18, 2015) (per curiam) (unpublished)14 (“[T]he district court's conclusion 

that Ms. Castillo must, at this stage, satisfy the prima facie showing required by 

McDonnell Douglas is inconsistent with Supreme Court precedent. See 

Swierkiewicz, 534 U.S. at 510, 122 S. Ct. 992. Thus, we conclude the district court 

erred in granting Allegro's motion to dismiss Ms. Castillo's claims of age and sex 

discrimination.”); Carlson, 758 F.3d at 827 (“While fraud claims, for example, must 

be pled with particularity, Title VII claims are not subject to a heightened pleading 

standard. Employers are familiar with discrimination claims and know how to 

investigate them, so little information is required to put the employer on notice of 

these claims.” (citations omitted)). 

Further elaboration by the Eleventh Circuit on how the Twombly/Iqbal

“plausibility standard” applies to pleading Title VII claims, at least in published 

opinions, has been elusive. However, recently and in a published opinion, the 

Second Circuit Court of Appeals, after thoroughly analyzing the interplay between

McDonnell Douglas, Swierkiewicz, and Iqbal, held:

It is uncertain how the Supreme Court will apply Iqbal's requirement 

of facts sufficient to support plausibility to Title VII complaints falling 

under the McDonnell Douglas framework. We conclude that Iqbal's

requirement applies to Title VII complaints of employment 

discrimination, but does not affect the benefit to plaintiffs pronounced 

in the McDonnell Douglas quartet. To the same extent that the 

McDonnell Douglas temporary presumption reduces the facts a 

plaintiff would need to show to defeat a motion for summary judgment 

 14 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Bonilla v. Baker Concrete 

Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not 

controlling authority and are persuasive only insofar as their legal analysis warrants.”).

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21

prior to the defendant's furnishing of a non-discriminatory motivation, 

that presumption also reduces the facts needed to be pleaded under 

Iqbal.

The Iqbal requirement is for facts supporting “plausibility.” The 

Supreme Court explained that “[t]he plausibility standard is not akin 

to a ‘probability requirement,’ but it asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 

678, 129 S. Ct. 1937. The question we face is what, in the Title VII 

context, must be plausibly supported by factual allegations when the 

plaintiff does not have direct evidence of discriminatory intent at the 

outset. Answering this question requires attention to the shifting 

content of the prima facie requirements in a Title VII employment 

discrimination suit. Recapitulating what we have spelled out above, 

while the plaintiff ultimately will need evidence sufficient to prove 

discriminatory motivation on the part of the employer-defendant, at 

the initial stage of the litigation—prior to the employer’s coming 

forward with the claimed reason for its action—the plaintiff does not 

need substantial evidence of discriminatory intent. If she makes a 

showing (1) that she is a member of a protected class, (2) that she was 

qualified for the position she sought, (3) that she suffered an adverse 

employment action, and (4) can sustain a minimal burden of showing 

facts suggesting an inference of discriminatory motivation, then she 

has satisfied the prima facie requirements and a presumption of 

discriminatory intent arises in her favor, at which point the burden of 

production shifts to the employer, requiring that the employer furnish 

evidence of reasons for the adverse action ... At this stage, a plaintiff 

seeking to defeat a defendant's motion for summary judgment would 

not need evidence sufficient to sustain her ultimate burden of showing 

discriminatory motivation, but could get by with the benefit of the 

presumption if she has shown evidence of the factors entitling her to 

the presumption.

The discrimination complaint, by definition, occurs in the first stage of 

the litigation. Therefore, the complaint also benefits from the 

temporary presumption and must be viewed in light of the plaintiff's 

minimal burden to show discriminatory intent. The plaintiff cannot 

reasonably be required to allege more facts in the complaint than the 

plaintiff would need to defeat a motion for summary judgment made 

prior to the defendant's furnishing of a non-discriminatory 

justification. Cf. Swierkiewicz, 534 U.S. at 511–12, 122 S. Ct. 992 (“It ... 

seems incongruous to require a plaintiff, in order to survive a motion to 

dismiss, to plead more facts than he may ultimately need to prove to 

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22

succeed on the merits if direct evidence of discrimination is 

discovered.”).

In other words, absent direct evidence of discrimination, what must be 

plausibly supported by facts alleged in the complaint is that the 

plaintiff is a member of a protected class, was qualified, suffered an 

adverse employment action, and has at least minimal support for the 

proposition that the employer was motivated by discriminatory intent. 

The facts alleged must give plausible support to the reduced 

requirements that arise under McDonnell Douglas in the initial phase 

of a Title VII litigation. The facts required by Iqbal to be alleged in the 

complaint need not give plausible support to the ultimate question of 

whether the adverse employment action was attributable to 

discrimination. They need only give plausible support to a minimal 

inference of discriminatory motivation.

Littlejohn v. City of New York, 795 F.3d 297, 310-11 (2d Cir. Aug. 3, 2015) (footnote 

omitted).15 See also Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 

2013) (“[T]he elements of a prima facie case may be used as a prism to shed light 

upon the plausibility of the claim. Although a plaintiff must plead enough facts to 

make entitlement to relief plausible in light of the evidentiary standard that will 

pertain at trial—in a discrimination case, the prima facie standard—she need not 

plead facts sufficient to establish a prima facie case.” (quoted favorably by Littlejohn,

795 F.3d at 311 n.9)). Even more recently, the Second Circuit has refined the 

reasoning in Littlejohn to hold: “[T]o defeat a motion to dismiss or a motion for 

 15 El-Saba does not argue in his response (Doc. 21) that any of the allegations in his 

Complaint constitute direct evidence of discrimination or retaliation with regard to his 2013 

termination, and the undersigned finds that the Complaint does not allege any such direct 

evidence. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (“Direct 

evidence is evidence, that, if believed, proves the existence of a fact without inference or 

presumption. As our precedent illustrates, only the most blatant remarks, whose intent 

could mean nothing other than to discriminate on the basis of some impermissible factor 

constitute direct evidence of discrimination. If the alleged statement suggests, but does not 

prove, a discriminatory motive, then it is circumstantial evidence.” (citations and 

quotations omitted)).

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judgment on the pleadings in a Title VII discrimination case, a plaintiff must 

plausibly allege that (1) the employer took adverse action against him, and (2) his 

race, color, religion, sex, or national origin was a motivating factor in the 

employment decision.” Vega v. Hempstead Union Free Sch. Dist., -- F.3d --, No. 14-

2265-CV, 2015 WL 5127519, at *12 (2d Cir. Sept. 2, 2015) (published). The 

undersigned finds the reasoning in Littlejohn and Vega to be persuasive and will 

apply it to the Title VII claims at issue here.

One method of showing a prima facie case for disparate treatment under 

Title VII involves showing that the plaintiff’s employer treated similarly situated 

employees outside of his protected class more favorably than he was treated. E.g., 

Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (per 

curiam) (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.

2000)); Littlejohn, 795 F.3d at 312 (“An inference of discrimination can arise from 

circumstances including, but not limited to, ... ‘the more favorable treatment of 

employees not in the protected group...’). The University argues that El-Saba’s 

disparate treatment claim is due to be dismissed because he has failed to allege 

facts plausibly showing that a similarly situated employee outside of his protected 

class was treated more favorably than him.

El-Saba first addresses this contention by arguing that he has alleged 

comparators demonstrating that Dean Steadman treated “resignations” by 

American-born professors differently than those of foreign-born professors. (See Doc. 

21 at 16 – 17). As alleged in the Complaint, in July 2008, Dr. Alkhatib, a “nonCase 1:15-cv-00087-KD-N Document 25 Filed 09/22/15 Page 23 of 43
24

native” ECE Department professor, resigned his position but then attempted to 

withdraw his resignation. (Doc. 1 at 17). Dean Steadman declined to reinstate Dr. 

Alkhatib, claiming that the deadline to withdraw had passed by one day and that 

resources had been allocated elsewhere. (Id. at 17 – 18). According to El-Saba, the 

“resource allocation” claim is belied by the fact that the offer letter to Dr. Alkhatib’s 

replacement was not mailed until six days after the effective date of the resignation. 

(Id. at 18).16 Later, Mark Adams, a tenure-track, “native born American” professor 

got an offer elsewhere and submitted his resignation in 2010-11. (Doc. 1 at 17). 

Dean Steadman offered Adams an incentive package to stay, but Adams rejected 

the offer and left the University. (Id.). 

In El-Saba’s own case, he complains that Dean Steadman “waited five days 

until August 20 to advise that he considered [El-Saba] to have resigned as of August 

15[,]” “notwithstanding that he apparently could have notified [El-Saba] on August 

14, more than a week before the first teaching day, August 22, of the import of the 

second communication and warned him of the consequences of failing to report on 

August 15. At least he could have advised [El-Saba] that the second letter was 

confusing or contradictory.” (Id. at 13). According to El-Saba, comparing Dean 

Steadman’s treatment of Adams with his treatment of Alkhatib and El-Saba 

 16 Dr. Alkhatib filed a lawsuit with this Court against Dean Steadman and numerous 

trustees of the University, alleging claims of race discrimination (though not under Title 

VII) arising from his failed attempt to withdraw his resignation. See Alkhatib v. John W. 

Steadman et al., S.D. Ala. Case No. 1:10-cv-00342-KD-C. The Court granted summary 

judgment to the defendants on all claims on November 11, 2011. See Alkhatib v. Steadman, 

Civil Action No. 10-00342-KD-C, 2011 WL 5553775 (S.D. Ala. Nov. 15, 2011).

At least one other University professor from the College of Engineering has 

unsuccessfully sued Dean Steadman for Title VII discrimination in this Court. See Hossain 

v. Steadman, 855 F. Supp. 2d 1307, 1317 (S.D. Ala. 2012).

Case 1:15-cv-00087-KD-N Document 25 Filed 09/22/15 Page 24 of 43
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“suggests that the Dean bent over backwards to retain the native born Adams past

deadlines, but was in somewhat of a hurry to snap up the resignation of the 

nonnatives Alkatib and plaintiff ... All three were supervised by the Dean, and 

subject to the same deadline standards, but treated differently based on national 

origin.” (Doc. 21 at 16 – 17).

Even leaving aside the fact that El-Saba was, in substance, terminated and 

did not resign, see supra n.6, the circumstances surrounding the departures of 

Adams, Alkhatib, and El-Saba are markedly dissimilar. This comparator evidence 

is the sort of “apples with oranges” comparison that the Eleventh Circuit has long 

held insufficient to show another employee is “similarly situated.” 17 See Maniccia v. 

Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“In determining whether employees 

are similarly situated for purposes of establishing a prima facie case, it is necessary 

to consider whether the employees are involved in or accused of the same or similar 

 17 In his response brief, El-Saba claims that Dean Steadman “extended [deadlines] for 

Adams” in relation to his resignation. (Doc. 21 at 17). As the University correctly points 

out, such an assertion is not supported by the factual allegations in the Complaint, nor has 

El-Saba attached an exhibit confirming this. To the extent El-Saba believed such factual 

detail to be necessary, he should have filed an amended complaint to include them. See 

Fed. R. Civ. P. 15(a)(1)(B). Amendment of a pleading cannot be effected through a brief in 

response to a motion to dismiss. See SE Prop. Holdings, LLC v. Braswell, Civil Action No. 

13-0267-WS-N, 2013 WL 4498700, at *5 n.6 (S.D. Ala. Aug. 21, 2013) (“[A]lthough plaintiff 

argues in its brief that George Braswell retained control or possession of the real property 

after transferring it to Vennie Braswell, and that the transfer consumed substantially all of 

his assets, those facts are not pleaded or supported in the Complaint. The sufficiency of 

plaintiff's Complaint must be evaluated based on its contents, not those of a subsequent 

memorandum of law.”); Woodard v. Town of Oakman, 885 F. Supp. 2d 1216, 1227 n.7 (N.D. 

Ala. 2012) (“Plaintiffs and Defendant Wilson reference numerous additional facts in their 

briefs that are not included in the complaint at issue ... There is no law in this Circuit that 

a plaintiff may prevent dismissal for failure to state a claim by adding additional facts in 

his/her briefs, so long as they are ‘consistent’ with the complaint. The Court rejects all new 

factual assertions in both Plaintiffs' and Wilson's briefs.”). Regardless, such an additional 

factual detail would not render Adams any more “similarly situated” to El-Saba and 

Alkhatib.

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conduct and are disciplined in different ways. The most important factors in the 

disciplinary context are the nature of the offenses committed and the nature of the 

punishments imposed. We require that the quantity and quality of the 

comparator's misconduct be nearly identical to prevent courts from second-guessing 

employers' reasonable decisions and confusing apples with oranges.” (citations and 

quotations omitted)); Burke-Fowler, 447 F.3d at 1323 (same); Wilson v. B/E 

Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (“The plaintiff and the 

employee she identifies as a comparator must be similarly situated in all relevant 

respects. The comparator must be nearly identical to the plaintiff to prevent courts 

from second-guessing a reasonable decision by the employer.” (citation and 

quotation omitted)); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1273 (11th 

Cir. 2004) (“When comparing similarly situated individuals to raise an inference of 

discriminatory motivation, the individuals must be similarly situated in all relevant 

respects besides race, since different treatment of dissimilarly situated persons does 

not violate civil rights laws.” (citation and quotation omitted)).

Nevertheless, El-Saba also claims that “evidence of the Dean’s historical 

national origin animus is relevant as background evidence” and, when considered as 

whole, would permit a plausible inference of discriminatory animus motivating his 

termination. (Doc. 21 at 17). In particular, he cites to Dean Steadman’s alleged 

remarks about wanting to “change the demographics of” the ECE Department, his 

statements indicating a preference for hiring native-born applicants, and his 

imposition of policies that disfavored foreign-born applicants. See Chapter 7 Tr. v. 

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27

Gate Gourmet, Inc., 683 F.3d 1249, 1255-56 (11th Cir. 2012) (“[A] plaintiff may use 

non-comparison circumstantial evidence to raise a reasonable inference of 

intentional discrimination and thereby create a triable issue. Whatever form it 

takes, if the circumstantial evidence is sufficient to raise a reasonable inference 

that the employer discriminated against the plaintiff, summary judgment is 

improper.” (citations and quotations omitted)); Wilson, 376 F.3d at 1087 (“The 

methods of presenting a prima facie case are not fixed; they are flexible and depend 

to a large degree upon the employment situation.”); Arafat v. Sch. Bd. of Broward 

Cnty., 549 F. App'x 872, 874 (11th Cir. Dec. 4, 2013) (per curiam) (unpublished) (“If 

a plaintiff fails to show the existence of a similarly-situated employee, judgment as 

a matter of law is appropriate where no other plausible allegation of 

discrimination is present.” (emphasis added) (addressing Rule 12(b)(6) 

dismissal)), cert. denied, 135 S. Ct. 106 (2014); Littlejohn, 795 F.3d at 312 (“An 

inference of discrimination can arise from circumstances including, but not limited 

to, the employer’s criticism of the plaintiff's performance in ethnically degrading 

terms; or its invidious comments about others in the employee's protected group; or 

the more favorable treatment of employees not in the protected group; or the 

sequence of events leading to the plaintiff's discharge ... [A]n inference of 

discrimination also arises when an employer replaces a terminated or demoted 

employee with an individual outside the employee's protected class.” (quotation 

omitted))

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The University does not directly confront El-Saba’s attempt to establish an 

inference of discrimination through non-comparator allegations, instead simply 

dismissing them as a “litany of allegations that bear no connection to [El-Saba’s] 

termination.” (Doc. 12 at 10. See also Doc. 23 at 8). However, the undersigned 

finds that Dean Steadman’s remarks about changing the department demographics 

and preferring to hire native-born applicants, considered along with El-Saba’s 

examples of native-born ECE Department faculty and applicants allegedly receiving 

more favorable treatment than non-native born faculty and applicants, are 

sufficient to show a “minimal inference of discriminatory motivation” in Dean 

Steadman’s termination of El-Saba. Cf. Ross v. Rhodes Furniture, Inc., 146 F.3d 

1286, 1291-92 (11th Cir. 1998) (“Ross further testified that sometime prior to his 

being fired, Kirkland pointed to Ross and said ‘You see that one over there, I am 

going to get rid of him.’ ... Ross contends that Kirkland's reference to ‘that one over 

there’ evinced racial animus by a decision maker who would ultimately fire him. 

[]Ross also testified that sometime in 1990, Kevin Sweeney said ‘I never seen as 

many blacks in this building except in a Tarzan movie.’ Even though Kirkland and 

Sweeney made their comments long before they fired Ross, that did not prevent 

Ross from using these statements as evidence to persuade the jury that it should 

disbelieve Rhodes's proffered reason. []The district judge rejected the Tarzan 

remark as an ‘isolated general racial remark,’ unable to aid Ross in proving his 

case. The trial judge erred. Although we have repeatedly held that such comments 

are not direct evidence of discrimination because they are either too remote in time 

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29

or too attenuated because they were not directed at the plaintiff, we have not held 

that such comments can never constitute circumstantial evidence of discrimination. 

Other Courts of Appeals have indicated that such comments may provide 

circumstantial evidence to support an inference of discrimination. E.g., Walden v. 

Georgia–Pacific Corp., 126 F.3d 506, 521 (3rd Cir. 1997) (‘Although stray remarks 

by non-decisionmakers alone are insufficient to establish discriminatory intent, we 

have held that such remarks can still constitute evidence of the atmosphere in 

which the employment decision was carried out.’).” (some citations omitted)); Rojas 

v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (per curiam) (“In Ross v. Rhodes 

Furniture, Inc., 146 F.3d 1286 (1998), we determined that potentially 

discriminatory comments that were not directly related to the employment decision 

could contribute to a circumstantial showing of discriminatory intent. See id. at 

1291.”); Beaver v. Rayonier, Inc., 200 F.3d 723, 729-30 (11th Cir. 1999) (“In addition 

to the evidence of his relative qualifications, Beaver presented evidence that Royce 

Daniel, the general manager of the Jesup mill and the ultimate decision-maker in 

personnel decisions at the mill, including those concerning Beaver, had expressed a 

desire to attract ‘younger, engineer-type employees or supervisors.’ While Daniel's 

comment does not rise to the level of direct evidence of discrimination, and would 

not be enough standing alone to show a discriminatory motive, a jury could infer 

from it some age-bias on Daniel's part when that comment is coupled with the other 

evidence in this case.”); Castillo, 603 F. App'x at 919 (“The district court concluded 

that Mr. Namnum's statement to Ms. Castillo that he wanted to give her job to ‘a 

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young boy’ was amenable to multiple interpretations and, therefore, could not 

constitute direct evidence of discrimination. This reasoning fails to take into 

account the abundant related factual allegations Ms. Castillo asserted. At a 

minimum, these allegations could, through discovery, yield circumstantial 

evidence of intentional discrimination.” (emphasis added)). 

Based on the foregoing, the undersigned concludes that El-Saba has plausibly 

pled a claim of discriminatory termination under Title VII. Accordingly, the 

undersigned RECOMMENDS that the University’s motion to dismiss (Doc. 11) be 

DENIED as to Count 2.

C. Title VII Retaliation Claim (Count 1)

“As with [Littlejohn’s] analysis of the disparate treatment claim, the 

allegations in the complaint need only give plausible support to the reduced prima 

facie requirements that arise under McDonnell Douglas in the initial phase of a 

Title VII [retaliation ]litigation.” Littlejohn, 795 F.3d at 316. “Thus, for a 

retaliation claim to survive a motion for judgment on the pleadings or a motion to 

dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or 

took an adverse employment action—against him, (2) ‘because’ he has opposed any 

unlawful employment practice.” Vega, 2015 WL 5127519, at *14 (quoting 42 U.S.C. 

§ 2000e–3(a)).

Unlike Title VII discrimination claims, however, for an adverse 

retaliatory action to be “because” a plaintiff made a charge, the 

plaintiff must plausibly allege that the retaliation was a “but-for” 

cause of the employer's adverse action. See Univ. of Tex. Sw. Med. Ctr. 

v. Nassar, –––U.S. ––––, ––––, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 

(2013). It is not enough that retaliation was a “substantial” or 

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“motivating” factor in the employer's decision. See id. “ ‘[B]ut-for’ 

causation does not[, however,] require proof that retaliation was the 

only cause of the employer's action, but only that the adverse action 

would not have occurred in the absence of the retaliatory motive.” 

Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).[18]

Id.

Here, El-Saba has alleged that Dean Steadman terminated him in August 

2013 “in retaliation for his on going [sic] complaints that Dr. Steadman was a 

racist.” (Doc. 1 at 13, ¶ 65). The University challenges the sufficiency of El-Saba’s 

allegations demonstrating “causal link” between his protected activity and his 

termination. Specifically, the University points out that “[a]ll of his alleged 

protected activities” – the latest being his 2011 statement to the EEOC – “took place 

at least two years prior to his termination” in August 2013.19 (Doc. 12 at 6). 

“To establish a prima facie case of Title VII retaliation, [plaintiffs] must show 

that (1) they engaged in statutorily protected activity; (2) they suffered a materially 

adverse employment action; and (3) there was a causal link between the two.” 

Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 856 (11th Cir. 2010). “[Courts] 

construe the causal link element broadly so that a plaintiff merely has to prove that 

the protected activity and the adverse action are not completely unrelated.” Higdon 

v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (quoting Olmsted v. Taco Bell 

 18 The Eleventh Circuit has interpreted Nassar similarly. See Smith v. City of New Smyrna 

Beach, 588 F. App'x 965, 981 (11th Cir. Oct. 23, 2014) (per curiam) (unpublished) (“In 2013, 

the Supreme Court in University of Texas Southwestern Medical Center v. Nassar ... held 

that a plaintiff must prove but-for causation—that the unlawful retaliation would not have 

occurred in the absence of the protected activity—to establish a claim of retaliation under 

Title VII.”).

19 El-Saba agrees, in response to the motion to dismiss, that his “last protected activity was 

his statement to the EEOC in 2011.” (Doc. 21 at 2).

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Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)). As the University notes, the Eleventh 

Circuit has held that “[a] plaintiff satisfies this element if she provides sufficient 

evidence of knowledge of the protected expression and that there was a close 

temporal proximity between this awareness and the adverse action. A close 

temporal proximity between the protected expression and an adverse action is 

sufficient circumstantial evidence of a causal connection for purposes of a prima 

facie case.” Id. (citation and quotations omitted). Accord, e.g., Smith v. City of New 

Smyrna Beach, 588 F. App'x 965, 981 (11th Cir. Oct. 23, 2014) (per curiam) 

(unpublished) (“We previously have held that a plaintiff can satisfy the causation 

element by presenting sufficient evidence that the decision-maker was aware of the 

plaintiff's protected conduct, and a close proximity between this awareness and the 

adverse employment action existed.” (citing Higdon, 393 F.3d at 1220)).

The University argues that “El-Saba cannot establish the temporal proximity 

required by the Eleventh Circuit to state a claim for retaliation, and his Count I 

fails as a matter of law.” (Doc. 12 at 6 – 7 (emphasis added)). However, “close 

temporal proximity” is but one method of demonstrating a causal link. “If there is a 

substantial delay between the protected expression and the adverse action,” a 

“complaint of retaliation fails as a matter of law” only “in the absence of other 

evidence tending to show causation...” Higdon, 393 F.3d at 1220 (emphasis 

added). See also Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 

2007) (“[M]ere temporal proximity, without more, must be ‘very close.’ ” (citing 

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (emphasis added)).

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Where there was a significant time gap between the protected activity 

and the adverse action, the plaintiff must offer additional evidence to 

demonstrate a causal connection, such as a pattern of antagonism or 

that the adverse action was the first opportunity for the employer to 

retaliate. See, e.g., Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 

177 (3d Cir. 1997) (evidence of a “pattern of antagonism” following the 

protected activity may give rise to the inference of causation); Dale v. 

Wynne, 497 F. Supp. 2d 1337, 1346 (M.D. Ala. 2007) (“In this instance, 

a six-week gap is enough to show temporal proximity, particularly 

because Dale's return to work was the first opportunity Wilson had to 

retaliate against her.”).

Ward v. United Parcel Serv., 580 F. App'x 735, 739 (11th Cir. Sept. 11, 2014) (per 

curiam) (unpublished). Accord Jones v. Suburban Propane, Inc., 577 F. App'x 951, 

955 (11th Cir. Aug. 19, 2014) (per curiam) (unpublished) (same); Lettieri v. Equant 

Inc., 478 F.3d 640, 650 (4th Cir. 2007) (“In cases where ‘temporal proximity between 

protected activity and allegedly retaliatory conduct is missing, courts may look to 

the intervening period for other evidence of retaliatory animus.’ Farrell v. Planters 

Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (internal quotation omitted). 

Specifically, evidence of recurring retaliatory animus during the intervening period 

can be sufficient to satisfy the element of causation.”); Porter v. Cal. Dep't of Corr., 

419 F.3d 885, 895 (9th Cir. 2005) (similar). See also Henderson v. FedEx Express, 

442 F. App'x 502, 506 (11th Cir. Oct. 6, 2011) (per curiam) (unpublished) (“Close 

temporal proximity between the protected activity and the adverse action may be 

sufficient to show that the two were not wholly unrelated ... If there is a delay of 

more than three months between the two events, then the temporal proximity is not 

close enough, and the plaintiff must offer some other evidence tending to show 

causation.” (citing Thomas, 506 F.3d at 1364)).

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Moreover, the University has not cited to any circuit court “case dismissing a 

Title VII retaliation claim under Rule 12(b)(6) utilizing only a temporal analysis to 

defeat causation allegations. Once a complaint has alleged enough facts that 

retaliation for protected conduct is plausible, the plaintiff is entitled to proceed to 

discovery. And discovery might unearth evidence of retaliation such that at 

summary judgment or trial, the plaintiff will not have to rely heavily on the 

temporal proximity between protected conduct and adverse actions to prove her 

case.” Garayalde-Rijos, 747 F.3d at 25 n.8. At the motion to dismiss stage, a court 

cannot simply engage in a “rote evaluation of [a] time lag” in evaluating the 

sufficiency of a retaliation claim, but instead must read the “complaint holistically 

and” take into account “relevant context.” Id. at 25 (citing Braden v. Wal–Mart 

Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (explaining that the complaint should 

be read in its entirety and “not parsed piece by piece to determine whether each 

allegation, in isolation, is plausible”)).20 See also Carlson, 758 F.3d at 829 (“[N]o 

bright-line timing rule can be used to decide whether a retaliation claim is plausible 

or whether it should go to a jury. Other factors can always be relevant. A 

mechanistically applied time frame would ill serve our obligation to be faithful to 

the legislative purpose of Title VII. The facts and circumstances of each case 

 20 However, the First Circuit did “not rule out that some pleadings may allege a temporal 

gap so attenuated as not to meet the plausibility standard for surviving motions to 

dismiss...” Garayalde-Rijos, 747 F.3d at 25. See also Carlson, 758 F.3d at 828 (“[A]

retaliation claim can indeed be so bare-bones that a lengthy time period between the 

protected activity and the alleged retaliation will make any causal connection between the 

two implausible. If the best a plaintiff can do is allege that he engaged in protected activity 

and then, years later, the employer took an adverse action against him, the claim may not 

be permitted to proceed.”).

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necessarily must be evaluated to determine whether an interval is too long to 

permit a jury to determine rationally that an adverse employment action is linked 

to an employee's earlier complaint.” (quotation omitted)).

El-Saba does not dispute that the gap of approximately two years between his 

last protected activity – his giving a statement to the EEOC sometime in 2011 – and 

his termination in mid-August 2013 is likely insufficient, standing alone, to 

plausibly show a causal connection between the two. Compare Thomas, 506 F.3d at 

1364 (“A three to four month disparity between the statutorily protected expression 

and the adverse employment action is not enough.”); Jones, 577 F. App'x at 955 

(“There was a gap of more than two years between the 2010 discrimination charge 

Jones filed against Suburban and his termination[ around June 2010]. Jones 

therefore could not rely on temporal proximity alone to establish that his 

termination was causally related to his protected activity.”), with Littlejohn, 795 

F.3d at 319-20 (“Littlejohn's allegations that the demotion occurred within days 

after her complaints of discrimination are sufficient to plausibly support an indirect 

inference of causation.”). Nevertheless, El-Saba claims that other factual 

allegations in his Complaint demonstrate a retaliatory pattern of behavior sufficient 

to plausibly suggest a causal connection between his protected activity and his 

termination. See Carlson, 758 F.3d at 829 (“Carlson has alleged that the resolution 

of her 2007 lawsuit in 2009 sparked animosity right away and that all of her 

attempts to advance at CSX since then have been thwarted. She has described an 

ongoing campaign of retaliation, and her claims must be viewed through that 

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lens.”). This “pattern of [retaliatory ]antagonism” El-Saba alleges can be 

summarized as follows: 21

• around May 2006 (end of academic year) – At a meeting, El-Saba accuses 

Dean Steadman of racial discrimination against Middle Eastern professors 

with respect to salary raises for 2004-2006. The next day, Dean Steadman 

asked Chairman Alam how he could allow El-Saba to accuse him of racism.

• 2007/early 2008 – At an ECE Department meeting, El-Saba and others 

complain of Dean Steadman’s statements about hiring only native born, 

natural English speaking faculty.

• April 2008 – At another meeting, El-Saba raises the issue of whether 

qualified candidates were being excluded under Dean Steadman’s policy of 

excluding applicants holding H1B visas. 

• around August 2008 - El-Saba requests one semester of leave to have dental 

surgery done overseas. Dean Steadman limits El-Saba to six weeks with a 

return-to-work date of October 21, 2008.

• May 2009 – Dean Steadman instructs Chairman Alam to evaluate El-Saba’s 

performance for the 2008-2009 academic year in a manner that did not 

 21 Under Title VII’s retaliation provision, “an employer may not retaliate against an 

employee because the employee ‘has opposed any practice made an unlawful employment 

practice by this subchapter[,]’ ” nor may an employer “retaliate against an employee 

because the employee ‘has made a charge, testified, assisted, or participated in any manner 

in an investigation, proceeding, or hearing under this subchapter.’ ” EEOC v. Total Sys. 

Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42 U.S.C. § 2000e–3 (a)) 

(alteration added). “[T]he protection afforded by the statute is not limited to individuals 

who have filed formal complaints, but extends as well to those ... who informally voice 

complaints to their superiors or who use their employers' internal grievance procedures.” 

Rollins v. State of Fla. Dep't of Law Enf’t, 868 F.2d 397, 400 (11th Cir. 1989) (per curiam).

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adequately account for the fact that El-Saba was on leave for a large portion 

of the fall semester, resulting in a lower evaluation score and “jeopardizing” 

El-Saba’s raises and promotions.

• Fall 2009 – El-Saba gives his first statement to the EEOC regarding Dean 

Steadman.

• April 23, 2010 – At a meeting, Dean Steadman cancels the Excellence in 

Research Award for which El-Saba has been nominated (possibly the only 

nominee), and El-Saba accuses Dean Steadman of canceling the award out of 

“revenge.” Dean Steadman becomes angry and, shortly after the meeting, 

tells Chairman Alam, “I’ll make it so tough on him he’ll have to resign.” In 

the Fall of 2010, El-Saba complains of the award cancellation and Dean 

Steadman’s remark to other University officials.

• Sometime during 2010-2011 academic year – El-Saba informs University 

officials that he has abstained from revoting on approving tenure and a 

promotion for Dr. Alkhatib’s because he believed it was done to further Dean 

Steadman’s discriminatory policies against foreign-born faculty.

• Sometime in 2011 prior to Fall – El-Saba gives his second statement to the 

EEOC regarding Dean Steadman.

• Fall 2011 – El-Saba asked for a teaching load reduction from three to two 

courses, and from five to four days, to accommodate his wife’s Friday 

chemotherapy treatments on Fridays. Dean Steadman grants this reduction 

with a 20% pay reduction by charging El-Saba’s “accumulated FMLA.”

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• May 2012 – Dean Steadman complains to Chairman Alam for approving one 

year of unpaid medical leave for El-Saba without his input.

• August 1, 2013 – Dean Steadman overrules Chairman Alam’s grant of ElSaba’s request for a one-year extension of unpaid medical leave, requires that 

El-Saba advise within 24 hours whether he would be on campus August 15. 

• August 20, 2013 – Dean Steadman terminates El-Saba for not reporting to 

the University August 15. 

• September 18, 2013 (approximately) – Dean Steadman denies El-Saba’s 

appeal of the termination.

In its reply, the University continues to focus almost exclusively on the 

temporal proximity between the various alleged protected activities and retaliatory 

actions in arguing that El-Saba has failed to sufficiently show causation.22

 22 In its reply, the University has also argued that El-Saba’s “contention of a chain of 

retaliatory events is undercut by his own intervening act of failing to report for work in 

August 2013.” (Doc. 23 at 4 (citing Henderson v. FedEx Express, 442 F. App’x 502, 506 (11th 

Cir. Oct. 6, 2011) (per curiam) (unpublished) (“Intervening acts of misconduct can break 

any causal link between the protected conduct and the adverse employment action.” (citing 

Eight Circuit authority); Trainer v. Supreme Bev. Co., 2013 WL 169288, at *6 (N.D. Ala. 

Jan. 10, 2013) (plaintiff’s conduct shortly before his termination broke any possible causal 

link)). The cases cited by the University to support this contention are not binding 

authority, see n.14, supra, and at least one other judge of this district has found the cited 

reasoning in Henderson to be unpersuasive. See Gross-Jones v. Mercy Med., 874 F. Supp. 

2d 1319, 1343-46 (S.D. Ala. 2012) (Steele, C.J.). The undersigned agrees that the 

“Henderson approach appears to go well beyond the purpose of the prima facie case.” Id. at 

1345. “Intervening acts” are more appropriately analyzed after a McDonnell Douglas prima 

facie case is shown, when the employer may then articulate legitimate, nondiscriminatory/retaliatory reasons for the adverse employment action. In pleading his Title 

VII claims, El-Saba is not even required to allege a “classic” McDonnell Douglas prima facie 

case, much less also rebut possible nondiscriminatory reasons as pretextual.

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“Title VII ... does not set forth ‘a general civility code for the American 

workplace.’ Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 

998, 140 L. Ed. 2d 201 (1998)[,]” and “[a]n employee's decision to report 

discriminatory behavior cannot immunize that employee from those petty slights or 

minor annoyances that often take place at work and that all employees experience. 

See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed.

1996) (noting that ‘courts have held that personality conflicts at work that generate 

antipathy’ and ‘ “snubbing” by supervisors and co-workers’ are not actionable under 

§ 704(a)).” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). 

“Some of [Dean Steadman’s] actions, considered individually, might not amount to 

much.” Vega, 2015 WL 5127519, at *17.23

Nevertheless, El-Saba’s well-pleaded factual allegations, “[t]aken together, ...

plausibly paint a mosaic of retaliation and an intent to punish [El-Saba] for 

complaining of discrimination.” Id. Specifically, El-Saba’s well-pleaded factual 

allegations indicate the following: (1) on at least one occasion, Dean Steadman

expressed dissatisfaction with El-Saba’s complaints of perceived discrimination; (2) 

approximately four months after El-Saba voices complaints about Dean Steadman’s 

policy to exclude applicants holding H1B visa, Dean Steadman reduced El-Saba’s 

request for dental leave, then, at the end of the academic year, refused to take ElSaba being on leave into account when evaluating his performance for the year, 

 23 In particular, El-Saba appears to take it as “given” that the Court would assume Dean 

Steadman should have just granted his multiple requests for medical leave in full, no 

questions asked. However, he has alleged nothing indicating that Dean Steadman was 

more generous to others in this regard.

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resulting in a less favorable evaluation;24 (3) the semester after El-Saba gave his 

first statement to the EEOC, Dean Steadman, without explanation, canceled an 

award for which El-Saba is the only nominee, then, after El-Saba complained of 

this, told Chairman Alam: “I’ll make it so tough on him he’ll have to resign;” and (4) 

Dean Steadman intervened on El-Saba’s 2013 request to extend his medical leave 

by one year, after Chairman Alam had originally granted it and had already 

granted him a previous year of leave. 

While the events making up this mosaic take place over several years and are 

themselves interspersed by gaps of months and sometimes years, El-Saba has cited 

to authority suggesting that the unique structure of school years can be a 

consideration in determining the sufficiency of a causal connection. See Darchak v. 

City of Chicago Bd. of Educ., 580 F.3d 622, 632 (7th Cir. 2009) (“[T]he [district

]court determined that Darchak failed to demonstrate that ‘Acevedo's comments 

were causally related to her decision not to renew [Darchak's contract].’ ... This 

appears to be a question of timing. But the bare fact that Darchak was not fired 

immediately after Acevedo allegedly made these remarks does not destroy the 

potential causal connection. The structure of the school year dictated the 

employment timetable, and Acevedo may not have been able to recommend 

nonrenewal of Darchak's contract any earlier than she did.”). Given the 

University’s myopic focus on “close temporal proximity” alone as an indicator of 

causation while giving only passing consideration to El-Saba’s “mosaic of 

 24 “[A] poor performance evaluation could very well deter a reasonable worker from 

complaining.” Vega, 2015 WL 5127519, at *16.

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retaliation” argument, the undersigned finds that El-Saba has alleged sufficient 

facts plausibly stating a claim of retaliation under Title VII.

Accordingly, the undersigned RECOMMENDS that the University’s motion 

to dismiss (Doc. 11) be DENIED as to Count 2.25

D. Rule 11 Violation

The undersigned notes that El-Saba’s Complaint (Doc. 1), filed pro se, is not 

signed as required by Federal Rule of Civil Procedure 11(a) (“Every pleading, 

written motion, and other paper must be signed by at least one attorney of record in 

the attorney's name--or by a party personally if the party is unrepresented ... The 

court must strike an unsigned paper unless the omission is promptly corrected after 

being called to the attorney’s or party’s attention.”). El-Saba is now represented by 

counsel. As such, in the event the Court permits this action to proceed, the 

undersigned further RECOMMENDS that El-Saba’s counsel be given a reasonable 

period in which to file a notice of endorsement of the Complaint (Doc. 1), as provided 

 25 The University has also, “[o]ut of an abundance of caution,” moved to dismiss for failure 

to exhaust administrative remedies any Title VII claims El-Saba may be attempting to 

assert that are not based on his 2013 termination. El-Saba does not assert that he is 

making any such claims in his response (Doc. 21), and the undersigned does not read the 

Complaint to be doing so, as El-Saba makes it reasonably clear that both Title VII claims 

are based on his termination. (See Doc. 1 at 9 (stating a claim for “retaliatory termination” 

in Count 1); 13 ¶ 65 (“Plaintiff alleges that his termination was in retaliation for his on 

going complaints that Dr. Steadman was a racist.”); 15 (stating a claim for “termination by 

resignation because of national origin”); 18 – 19, ¶¶ 87 – 88 (“The reason for terminating 

plaintiff and denying his appeal ... was pretextual” and “was also motivated by Steadman’s 

national origin discrimination ...”). To the extent the University is arguing that other 

adverse actions against El-Saba should not be considered because El-Saba never filed 

EEOC charges on them, the exhaustion requirement for Title VII claims does not “bar an 

employee from using the prior acts as background evidence in support of a timely claim.” 

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

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for on page 10 of the Court’s Administrative Procedures for Filing, Signing, and 

Verifying Pleadings and Documents by Electronic Means.

V. Conclusion and Recommendations

In accordance with the foregoing analysis, it is RECOMMENDED that the 

University’s Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. 

11) be GRANTED only as to El-Saba’s Rehabilitation Act cause of action in Count 3 

of the Complaint (Doc. 1), and that it be otherwise DENIED. In the event the 

Court permits this action to proceed after ruling on the Motion to Dismiss, it is 

further RECOMMENDED that El-Saba’s counsel be given a reasonable period to 

correct El-Saba’s Rule 11(a) violation in filing his Complaint without a signature, as 

set forth in Section IV(D), supra.

VI. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything 

in it must, within fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

Fed. R. Civ. P 72(b); SD ALA LR 72.4. The parties should note that under Eleventh 

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court's order based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the consequences on appeal 

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for failing to object. In the absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 

3-1. In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference 

or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 22nd day of September 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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