           Case: 16-17199   Date Filed: 06/13/2018   Page: 1 of 17


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17199
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:15-cv-00087-KD-N



AED EL-SABA,

                                                      Plaintiff - Appellant,

                                  versus

UNIVERSITY OF SOUTH ALABAMA,

                                                      Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (June 13, 2018)

Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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       Aed El-Saba appeals from the district court’s denial of his motion to compel

discovery and grant of summary judgment in favor of his former employer, the

University of South Alabama, in his employment discrimination and retaliation

suit. After careful review, we affirm.

                                    I.      BACKGROUND

       El-Saba, an American citizen born in Lebanon, was employed as a professor

in the Electrical and Computer Engineering (“ECE”) Department at the University

of South Alabama beginning in 1999.1 He was terminated in 2013 after his request

for an extension of leave was denied.

       El-Saba’s career at the University was successful: he was hired to a tenure-

track position, received pay raises each time raises were awarded to professors, and

was awarded tenure and promoted to associate professor in 2005. His supervisor

was Dr. John Steadman, Dean of the University’s Engineering Department (of

which the ECE Department was a part), and it was Steadman who, beginning in

2003, approved El-Saba’s raises and recommended him for tenure and promotion.

El-Saba, however, believed that the Department was not treating foreign-born

faculty equally to their American-born counterparts. In the spring of 2007, he

made a chart showing the salaries of professors in his Department for the years

2003-2007. He showed the chart to Dr. Mohammed Alam, the ECE Department
       1
         Because we write for the parties, we assume their familiarity with the underlying facts
and recite only what is necessary to resolve this appeal.

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Chair, and also presented the chart at a May 2007 faculty meeting. At the meeting,

at which Alam was present, El-Saba distributed the chart and alleged that the

Department’s raises were racist because native-born, native-English-speaking

professors received greater raises than foreign-born professors.2

          Steadman was not present at the meeting when El-Saba distributed the chart

and made allegations about racism in the Department. Nor did El-Saba ever speak

directly to Steadman about his salary, any apparent discrepancies, or

discrimination he believed existed. After the meeting, however, Alam showed the

chart to Steadman and told him about El-Saba’s assertion that the Department’s

salaries were discriminatory.

          Later that year, Steadman attended at least two faculty meetings relevant to

this appeal. At one, a faculty member raised concern about the pay discrepancies

discussed at the May meeting; Steadman responded by explaining that he strictly

followed the University’s rules in recommending salary increases. 3 At another,

Steadman allegedly said that he wanted to change the demographics of the

Engineering Department and that he preferred native-born, natural English-




          2
         As the district court explained in its summary judgment order, at least some of the
discrepancies in salary accounted for differences in hire dates and faculty responsibilities.
          3
              El-Saba does not argue that the University’s salary rules were discriminatory in intent or
effect.

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speakers.4 El-Saba responded by accusing Steadman of discrimination and racism

at ECE department meetings and faculty search committee meetings in 2008.

Steadman was not at these meetings but was nonetheless aware of some of El-

Saba’s complaints.

       El-Saba asserted that other incidents transpired over the following semesters

evidencing Steadman’s discriminatory animus. El-Saba requested a medical leave

of absence for the entire fall semester of 2008 to have several dental surgeries, but,

after meeting with Steadman, Alam, and other representatives from the

University’s human resources department, was granted only a limited leave from

August 29 through October 21. In 2010, El-Saba was the sole nominee of the

Engineering Department’s Excellence in Research Award, but the award

committee—of which Steadman was not a member or influencer—declined to give

the award to any faculty member. El-Saba believed that Steadman was responsible

for cancellation of the award and said as much in an April faculty meeting;

Steadman replied that the committee decided there would be no award that year

because the quality of the research was not of a level warranting recognition. El-

Saba accused Steadman of cancelling the award to punish him for his previous

complaints. El-Saba left the meeting, but Steadman stayed and told Alam, also


       4
        Steadman testified that he did not recall making these comments. For purposes of
reviewing the district court’s summary judgment order, we accept El-Saba’s testimony that
Steadman made the comments. See infra Part II.

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present at the meeting, that it seemed like El-Saba was unhappy at the University

and that he hoped El-Saba would find a position elsewhere and leave. El-Saba

testified that Alam told him Steadman said, “I’ll make it so tough on [El-Saba],

he’ll have to resign.” Doc. 66-1 at 102.

      During the fall semester of 2011, El-Saba gave an interview to an EEOC

investigator concerning a claim filed by a colleague against the University. In the

interview, El-Saba accused Steadman of racism based on, among other things,

Steadman’s statements about a desire to change the Department’s demographics

and about preferring native-born, natural-English speaking faculty and alleged

salary and raise discrepancies in the ECE Department. Also in the fall of 2011, El-

Saba met with Dr. Russ Lea, the Vice President of Research at the University, to

discuss the issues he had with Steadman. In early 2012, he met with the

University’s general counsel, Jean Tucker, concerning Steadman’s aforementioned

statements and his purported cancellation of the research award. El-Saba offered

no evidence that Steadman knew about any of these meetings or what was said

during them.

      El-Saba was on leave for most of his final two years at the University. After

meeting with Alam, Steadman, and the University’s human resources department,

El-Saba was granted family medical leave for Fridays during the fall 2011

semester to take his wife to chemotherapy treatments. His course load and salary


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was adjusted based on his leave. Due to his wife’s ongoing medical issues and his

own medical problems (he had suffered a heart attack), El-Saba requested a one

year leave of absence spanning the fall 2012 and spring 2013 semesters. Steadman

recommended approval of the request, and it was granted by Dr. David Johnson,

Senior Vice President for Academic Affairs.

       El-Saba suffered another heart attack in July 2013 while overseas. He sent

an email to Alam notifying him of the heart attack, explaining that his doctor had

recommended open-heart surgery, and requesting an additional one-year unpaid

medical leave of absence.5 Alam recommended that the leave request be granted

and turned the request over to Steadman. Steadman sent an email to El-Saba in

which he stated that, due to staffing needs, he could not approve a leave of absence

as lengthy as the one El-Saba had requested. Steadman asked El-Saba to let him

know by August 5 whether or not he would be available for work on August 15,

the beginning of the fall semester.

       On August 5, El-Saba emailed Steadman and stated that he would be unable

to return to the University until after November 11. Steadman was away from the

office from August 3 through 13, so Johnson responded to El-Saba’s email.

Johnson told El-Saba that, due to staffing needs, the University could not grant his


       5
         As the district court explained, it is undisputed that by the time El-Saba sent the email,
he had been treated via an alternative procedure, released from the hospital, and was no longer
under recommendation for open-heart surgery. See Doc. 96 at 16 & n.5.

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request for a one year leave of absence. Johnson further stated that, for the

University to consider granting El-Saba a leave of absence for the fall 2013

semester only, El-Saba would need to provide a statement from his physician by

August 12 stating that he would be able to return to work on January 2, 2014.

      On August 13, El-Saba sent Johnson an email to which he attached a “Sick

Leave Certificate” stating that he was “fit to work from 01-01-2014.” Doc. 66-1 at

283. The email also stated that a more detailed report would follow. On August

15, El-Saba emailed Johnson a more detailed medical report. The report, dated

August 14, detailed El-Saba’s treatment and stated that he was “fit to resume his

routine work.” Doc. 66-1 at 292. Johnson reviewed the documentation and

consulted with Steadman on more than one occasion about El-Saba’s request.

Johnson and Steadman’s review resulted in the decision that El-Saba’s leave

request was medically unnecessary. Johnson had no knowledge that El-Saba had

accused Steadman of discrimination.

      On August 20, Steadman replied to El-Saba’s August 15 email and stated

that because El-Saba was fit to work and was not under travel restrictions, a leave

of absence was unnecessary and therefore unreasonable. Steadman further stated

that because leave had not been granted and El-Saba did not return to work as




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required on August 15, he was deemed to have resigned his position at the

University. 6

       El-Saba filed a complaint with the Equal Employment Opportunity

Commission alleging that he was terminated due to illegal discrimination and

retaliation. After receiving notice of a right to sue from the EEOC, he filed a

complaint in district court alleging that the University terminated his employment

based on his national origin in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and in retaliation for his ongoing complaints

against Steadman.

       The parties conducted extensive discovery. Approximately two weeks after

the close of discovery, El-Saba filed a motion to compel in which he sought

production of certain of the University’s attorney notes and emails; a reopening of

discovery as to Steadman, Johnson, and in-house University counsel;

disqualification of defense counsel; and a reopening of Alam’s deposition. A

magistrate judge denied the motion, finding that it was untimely and that—because

El-Saba never moved for an extension of the discovery deadline before the close of

discovery, waited until very late in the discovery period to take contentious


       6
         It is undisputed that, since Steadman’s appointment as Dean, Steadman recommended
and El-Saba was granted more leave of absence time than any other College of Engineering
faculty member had ever been given. Moreover, the record contains no evidence that any other
faculty member failed to return to or be available for work on the faculty reporting date without
preapproval.

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depositions, and waited almost two weeks after the close of discovery to file the

motion to compel—he had not shown diligence justifying the filing of his out of

time motion. The magistrate judge acknowledged that scheduling orders may be

modified for good cause, but, for these same reasons, found no such cause.

       As an alternative ground for denying the motion, the magistrate judge

explained that El-Saba’s motion failed to include a certification that he had

conferred in good faith with the University in an attempt to resolve the dispute

without court action as required by Rule 37 of the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 37(a)(1) (requiring a party moving for an order

compelling discovery to certify that he “has in good faith conferred or attempted to

confer” with the opposing party “without court action”). The magistrate judge also

denied El-Saba’s motion for reconsideration. Finding no error in the magistrate

judge’s orders, the district court affirmed the denial of El-Saba’s motion to compel.

       Upon the University’s motion, the district court granted summary judgment

in favor of the University. 7 As to El-Saba’s discrimination claim, the district court

acknowledged the evidence in the record that Steadman wanted to hire more

native-born applicants. Nonetheless, the court concluded that El-Saba’s claim

failed because it was undisputed that Johnson was the ultimate decisionmaker as to

       7
          The district court preliminarily made several evidentiary rulings, two of which El-Saba
challenges on appeal. We need not determine whether these evidentiary rulings were in error
because, even considering the challenged evidence, we conclude that El-Saba has not shown that
there is a genuine issue of material fact as to his discrimination and retaliation claims.

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El-Saba’s termination and because El-Saba failed to present evidence that Johnson

had any discriminatory intent or that his decision was impacted by Steadman’s

alleged discriminatory animus. In the alternative, the district court concluded that

the University had proffered a legitimate, nondiscriminatory reason for El-Saba’s

termination—that El-Saba failed to report to work despite his medical leave

request being denied as medically unnecessary—and El-Saba failed to show that

this reason was pretextual.

      As to El-Saba’s retaliation claim, the district court applied the McDonnell

Douglas burden shifting framework. 8 The court assumed that El-Saba had

engaged in protected activity and determined that his termination constituted an

adverse employment action. But, the court concluded, he failed to show that but

for his participation in the protected activities, he would not have been terminated

because the alleged protected activities known to Steadman were too remote in

time to establish the causation of his termination and, in any event, Johnson was

the ultimate decisionmaker. Alternatively, the district court—relying on its

previous findings—concluded that El-Saba failed to rebut the University’s

proffered legitimate, nondiscriminatory reason for his termination.

      This is El-Saba’s appeal.

                           II.    STANDARDS OF REVIEW

      8
          See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); infra Part III.B.

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      We review for an abuse of discretion a district court’s denial of a motion to

compel discovery. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir.

2006). “This means that a district court is allowed a range of choice in such

matters, and we will not second-guess the district court’s actions unless they reflect

a clear error of judgment.” Id. (internal quotation marks omitted). We have “often

held that a district court’s decision to hold litigants to the clear terms of its

scheduling orders is not an abuse of discretion.” Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011).

      We review an order granting summary judgment de novo, applying the same

standard the district court employed. Miccosukee Tribe of Indians of Fla. v. United

States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

view all evidence and draw all inferences in the light most favorable to the

nonmovant, here, El-Saba. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). “An issue of fact is ‘material’ if, under the applicable substantive law, it

might affect the outcome of the case. An issue of fact is ‘genuine’ if the record

taken as a whole could lead a rational trier of fact to find for the nonmoving party.”

Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (internal quotation

marks omitted).


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                                III.   DISCUSSION

      A. Motion to Compel

      El-Saba contends that the district court abused its discretion in denying his

motion to compel. Although he acknowledges that his motion was untimely, he

argues that the magistrate judge and district court failed to obtain “any factual

input” from him before denying the motion. Appellant’s Br. at 39. He also argues

that the magistrate judge erroneously treated the motion to compel as only

requesting an extension of the dispositive motions deadline, rather than as

requesting an extension of the discovery deadline. Moreover, El-Saba asserts that

his failure to attach a certification regarding conferral with opposing counsel was

an insufficient reason to deny his motion to compel.

      The district court was well within its discretion to deny El-Saba’s motion to

compel as untimely based on the magistrate judge’s reasoned order. By El-Saba’s

own admission, the motion was filed almost two weeks after the close of discovery

and therefore was untimely. As the magistrate judge noted, El-Saba gave no

reasonable excuse why he did not move to extend the discovery deadline earlier.

As to El-Saba’s first argument, the magistrate judge had before her El-Saba’s

motion and had entertained discovery disputes between the parties previously;

therefore, it cannot be said that El-Saba’s “factual input” was not considered.

Furthermore, although the magistrate judge noted that El-Saba had not technically


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moved for an extension of discovery, the order denying the motion to compel does

not rest on this technicality; rather, the magistrate judge expressly acknowledged

that El-Saba wished to extend discovery beyond the deadline. Finally, the court

was within its discretion to consider El-Saba’s failure to certify that he had

conferred with opposing counsel; El-Saba had run afoul of Rule 37’s requirement

that the parties make a good faith effort to resolve any discovery disputes without

court intervention. See Holloman, 443 F.3d at 843-44 (finding no abuse of

discretion when district court denied discovery motions “based on what it termed a

failure to work with the defendants in good faith”).9

       B. Summary Judgment

       El-Saba argues that the district court erred in granting summary judgment in

favor of the University on both of his claims. Specifically, he argues that the

district court erred in concluding that Johnson was the ultimate decisionmaker as to

his termination and that he failed to demonstrate pretext.

       We are unpersuaded that the district court committed reversible error. The

district court correctly determined that El-Saba failed to show that the University’s

proffered legitimate nondiscriminatory reason for his termination was pretext.

       9
         El-Saba relatedly contends that the magistrate judge should have granted his motion for
reconsideration, arguing that the denial of his motion to compel in light of alleged discovery
abuses by the University worked a manifest injustice. We cannot agree. Discovery undoubtedly
was contentious in this case; however, upon a review of the record we see none of the
University’s actions as abusive such that manifest injustice would have resulted from the denial
of El-Saba’s motion to compel.

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This conclusion defeats his retaliation claim as a matter of law. A demonstration

of pretext is not in all cases necessary to show discrimination; however, given the

University’s proffered reason for El-Saba’s termination and that El-Saba failed to

present evidence of pretext, he cannot show that a reasonable jury could conclude

he was terminated because of his national origin. Thus, we need not address

whether the district court correctly determined that Johnson was the sole

decisionmaker in El-Saba’s termination.

      Under Title VII, it is unlawful for an employer to “discharge any individual,

or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . national origin.” 42 U.S.C. § 2000e-2(a)(1). It is also unlawful

under the statute to retaliate against an employee because he has opposed “an

unlawful employment practice . . . or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing.”

Id. § 2000e-3(a). A plaintiff may overcome a motion for summary judgment on

his Title VII claims by satisfying the McDonnell Douglas burden-shifting

framework. See EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272-73 (11th

Cir. 2002). Under that framework, the plaintiff must establish a prima facie case of

discrimination or retaliation, at which point the burden shifts to the employer to

show a legitimate, nondiscriminatory reason for the adverse employment action.


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Id. If the employer meets its burden, the burden once again shifts to the plaintiff to

show that the employer’s proffered reason was pretextual. Id. We have said,

however, that a plaintiff need not establish each of the McDonnell Douglas

elements to survive summary judgment; rather, he may do so where he presents “a

convincing mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted).

       The University offered ample evidence that the decision to terminate El-

Saba was made because he failed to return to work after his medical leave request,

which was unsupported by evidence of medical need, was denied. 10 The district

court concluded that El-Saba failed to show that this proffered legitimate,

nondiscriminatory reason was pretextual, and we agree. El-Saba argues that his

numerous complaints about Steadman’s allegedly discriminatory animus were the

real reason for his termination. But the last documented complaint El-Saba made

about Steadman—to the University’s general counsel—was in early 2012,


       10
           We are unconvinced by El-Saba’s argument that the district court erred in looking
solely to the August 14 medical report. Our review of the email correspondence between El-
Saba, Johnson, and Steadman clearly demonstrates that this report, which did not directly
conflict with the one sent on August 13 stating that El-Saba was “fit to work from 01-01-2014,”
was intended to be the more thorough, final report from El-Saba’s doctor. In any event, even if
Steadman and Johnson misinterpreted the two medical reports, their mistake—without other
evidence of discrimination—does not amount to pretext. Flowers v. Troup Cty., Ga., Sch. Dist.,
803 F.3d 1327, 1338 (11th Cir. 2015) (“[An employer is] free to fire [its] employees for a good
reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its
action is not for a discriminatory reason.” (internal quotation marks omitted)).

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approximately a year and a half before his final leave request was denied and his

employment terminated. Even assuming Steadman (and/or Johnson) knew of this

complaint—an assumption that lacks evidentiary support—this complaint, and the

others before it, were simply too remote to bear any temporal relationship to El-

Saba’s termination. 11 See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1369-70 (11th

Cir. 1999) (explaining that gaps of 15 and 21 months between protected activity

and adverse employment actions showed “no temporal relationship” between the

two). Given the temporal distance between his complaints and termination,

without more, no rational trier of fact would conclude that the complaints were the

real reason for his termination. Harrison, 746 F.3d at 1298; see also Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“[I]n the absence of

other evidence tending to show causation, if there is a substantial delay between

the protected expression and the adverse action, the complaint of retaliation fails as

a matter of law.”). Thus, under the undisputed facts of this case El-Saba has failed

to demonstrate the existence of a genuine issue of material fact regarding whether

the University’s well-documented, stated reason for his termination was pretext for

discriminatory animus or retaliation. Harrison, 746 F.3d at 1298.
       11
         El-Saba argues that because he was away on leave for most of the time between his
statements to the University’s general counsel in early 2012 and his request for a year-long leave
in August 2013, the August 2013 leave request presented Steadman with his first opportunity to
unlawfully terminate him. The record does not support El-Saba’s position. After his early 2012
statements, El-Saba requested a one year leave of absence beginning in fall 2012, and it was
Steadman’s job to review the request. Rather than terminating him then, Steadman
recommended approving El-Saba’s leave request (a recommendation Johnson accepted).

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       Although a plaintiff alleging discrimination is not required to conform to the

McDonnell Douglas framework to overcome a motion for summary judgment, 12

here El-Saba’s failure to rebut the University’s asserted legitimate,

nondiscriminatory reason for his termination is fatal to his “convincing mosaic”

theory. In light of the University’s unrebutted legitimate reason for El-Saba’s

dismissal, no reasonable jury would find that he was terminated due to intentional

discrimination. Smith, 644 F.3d at 1328.

       In sum, the district court was correct to grant summary judgment in favor of

the University.

                                  IV.    CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of El-Saba’s

motion to compel discovery and grant of the University’s motion for summary

judgment.

       AFFIRMED.




       12
           El-Saba did not argue before the district court, nor does he argue now, that he can
satisfy the McDonnell Douglas burden-shifting framework as to his discrimination claim. See
McDonnell Douglas, 411 U.S. at 792. Thus, we need consider only whether he can satisfy the
“convincing mosaic” theory. See Smith, 644 F.3d at 1328 (explaining both ways to withstand a
motion for summary judgment).

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