Aed El-Saba v. University of South Alabama

Introduction Petitioner filed a complaint for wrongful termination based on national origin discrimination and retaliation. He identified defendant’s stated reason as an email of August 20, 2013, “deeming him to have resigned” when he did not appear for work on August 15. The “deemed resignation” (not termination) was based on a Handbook provision. Plaintiff alleged it was pretext. The trial court identified the reason as failing to appear despite a second medical letter that he was fit for duty. The court, assuming plaintiff had made out a prima facie case, found he “offered no evidence the proffered reason was false” (App.39a-40a; 45a) and granted summary judgment. Petitioner appealed. On June 13, 2018 the 11th Circuit agreed. The panel cited not a single case defining pretext. Panel and en banc reconsideration were denied. Petitioner abandons his national origin claim for these proceedings only. 1. Under Rule 10(a) when the trial court changes the language of the stated discharge reason; substitutes another document as the focus of pretext analysis; and finds no pretext; the appellate court sanctions this and cites no pretext law has the appellate court “so far departed” or sanctioned such a departure by the district court so as to require the exercise of this Court’s supervisory power?