Mohammed Mahran v. Advocate Christ Medical Center ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2911
MOHAMMED MAHRAN,
Plaintiff-Appellant,
v.
ADVOCATE CHRIST MEDICAL CENTER and
ADVOCATE HEALTH AND HOSPITALS CORPORATION,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 5730 — Sara L. Ellis, Judge.
____________________
ARGUED JUNE 3, 2020 — DECIDED SEPTEMBER 1, 2021
____________________
Before SYKES, Chief Judge, and BAUER and ST. EVE, Circuit
Judges.
SYKES, Chief Judge. Mohammed Mahran, an Egyptian
Muslim, sued Advocate Christ Medical Center, his former
employer, raising claims of employment discrimination
under Title VII of the Civil Rights Act of 1964 and the Illinois
Human Rights Act (“IHRA”). Mahran, a pharmacist, alleged
that Advocate failed to accommodate his need for prayer
2 No. 19-2911
breaks; disciplined and later fired him based on his race,
religion, and national origin; retaliated against him for
reporting racial and religious discrimination; and subjected
him to a hostile work environment based on his race, reli-
gion, and national origin. The district judge entered sum-
mary judgment for Advocate on all claims.
Mahran limits his appeal to two issues. First, he asks us
to revive his religious-accommodation claim, arguing that
the judge wrongly required him to show that Advocate’s
failure to accommodate his prayer breaks resulted in an
adverse employment action. Second, he argues that the
judge failed to consider the totality of the evidence in evalu-
ating his hostile-workplace claim.
Mahran’s first argument, which concerns the legal stand-
ard for a religious-accommodation claim, is new on appeal.
Indeed, he expressly agreed below that an adverse employ-
ment action is an element of a prima facie Title VII claim for
failure to accommodate an employee’s religious practice. He
cannot now take the opposite position here; arguments
raised for the first time on appeal are deemed waived. And
while the judge should have considered all the evidence
Mahran adduced in support of his hostile-workplace claim,
our own review of the record convinces us that there is not
enough evidence for a jury to find that Advocate subjected
him to a hostile work environment. We therefore affirm.
I. Background
Mahran is a native of Egypt and a practicing Muslim.
Two decades after completing his pharmaceutical education
in Egypt, he became a licensed pharmacist in Illinois. He
joined Advocate in November 2013, initially hired as a
No. 19-2911 3
“registry pharmacist” for a 90-day probationary period.1
Upon successful completion of his probationary employ-
ment, he was eligible for promotion to full-time pharmacist.
During Mahran’s 90-day probationary period, Advocate
hired Barbara Bukowski and Dearica Radic as full-time
pharmacists without requiring them to first work as registry
pharmacists. Mahran complained to Rolla Sweis, the Direc-
tor of Pharmacy, that Bukowski and Radic had received
preferential treatment because they weren’t Muslims. He did
not know, however, that Bukowski and Radic had prior
hospital experience and thus were not required to work as
registry pharmacists before being hired full time. Nonethe-
less, two days after Mahran complained to Sweis, Advocate
removed the probationary qualifier and elevated him to full-
time pharmacist.
Mahran’s supervisor, Judith Brown-Scott, initially gave
him “meets expectations” ratings in his performance re-
views. But his performance eventually deteriorated. He
received his first admonition (a Level 1 warning) for pro-
cessing a discontinued order for a patient and failing to
process the patient’s next order. When questioned about the
incident, Mahran did not take responsibility and instead
blamed a coworker.
Soon after the admonition, Vincent Dorsey, one of
Mahran’s coworkers, complained that Mahran left numerous
unfinished orders at the end of his shift for the next pharma-
cist to fill. When management investigated, Mahran re-
1 Though Mahran named both Advocate Christ Medical Center and
Advocate Health and Hospitals Corporation as defendants, the medical
center is only a division of the hospital corporation, not a distinct entity.
4 No. 19-2911
sponded that Dorsey was biased against Muslims and often
talked down to him and another Muslim coworker named
Mohammed Judeh. Neither Mahran nor Dorsey were disci-
plined.
Brown-Scott issued a final warning (a Level 3 warning)
after Mahran failed to verify a complicated order. He had
previously been warned about his habit of shirking work—
specifically, his pattern of selectively verifying only simple
orders and switching his schedule to avoid working busy
shifts. Along with the warning, Brown-Scott issued a formal
performance deficiency notice describing Mahran’s perfor-
mance problems, prescribing a corrective-action plan, and
warning him that failure to comply with the plan could
result in termination of his employment. Around this time
Brown-Scott also reduced Mahran’s performance rating to
“approaching expectations.” Mahran complained to human
resources that he was being disciplined in retaliation for
reporting racial and religious discrimination. The human-
resources department then withdrew the Level 3 warning
but left the reduced performance rating, performance-
deficiency notice, and corrective-action plan in place.
A month later, Advocate gave Mahran another Level 3
final warning after he improperly left the pharmacy before
his replacement arrived and did not hand off the work to
her. Again, Mahran complained that this discipline was
discriminatory. Before an arbitration panel could be con-
vened to resolve Mahran’s complaint, Advocate terminated
his employment for failure to comply with the corrective-
action plan.
Mahran filed charges of discrimination and retaliation on
the basis of race, religion, and national origin with the
No. 19-2911 5
Illinois Department of Human Rights and the Equal
Employment Opportunity Commission. After the charges
were dismissed, Mahran filed this discrimination suit
against Advocate. As relevant here, he raised claims of
racial, religious, and national-origin discrimination in viola-
tion of Title VII, 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981; and
the IHRA, 775 ILL. COMP. STAT. 5/2-102. 2
Mahran’s allegations can be grouped into three general
baskets. He claimed that Advocate (1) discriminated and
retaliated against him by giving him negative performance
evaluations, imposing discipline, and terminating his em-
ployment; (2) subjected him to a hostile work environment;
and (3) failed to accommodate his religious practice.
More particularly, Mahran alleged that Advocate dis-
criminated against him by hiring Bukowski and Radic as
full-time pharmacists while he, in contrast, was hired as a
probationary registry pharmacist. He also claimed that they
earned more than the $50-per-hour starting salary he earned
as a full-time pharmacist. That allegation was factually
unsupported. Bukowski and Radic both started at $50 per
hour. Mahran additionally asserted that Advocate deprived
him of training opportunities. When he requested two weeks
of training in the intensive care unit, Advocate gave him
only three hours of ICU training, ostensibly because he was
not an ICU pharmacist and did not need the specialized
2 Mahran also pleaded claims for denial of overtime pay in violation the
Fair Labor Standards Act, 29 U.S.C. § 207(a), and retaliatory discharge in
violation of Illinois common law. The district judge entered summary
judgment for Advocate on these claims, and Mahran does not challenge
that decision.
6 No. 19-2911
training. He also alleged that the trainers in the ICU didn’t
answer his questions and that one of them shouted at him.
As further evidence to support his claim of religious bias,
Mahran contended that he was denied vacation time on a
discriminatory basis. Though he received time off for two
Islamic holidays in 2015, he was denied vacation time for Eid
al-Fitr in 2016. Advocate explained that four pharmacists
had already reserved vacation time for that date—the maxi-
mum number that could be on vacation at the same time.
Mahran rejected this explanation, noting that his coworker
Katie Khouri was permitted to take 18 days off even though
four pharmacists had reserved days off during the same
period. But Khouri had switched shifts with other pharma-
cists on some of those days to avoid understaffing, and
Sweis approved the other days because Khouri was getting
married, which Sweis considered worthy of a special excep-
tion.
Mahran’s hostile-environment claim centered on allega-
tions about offensive comments related to his race and
national origin. Mahran claimed that Sweis once referred to
his native country when she corrected the way he prioritized
orders. She said: “This is how you do it in Egypt. Here it’s
completely different.” Mahran complained to a human-
resources employee that Sweis was a racist. The employee
simply replied, “[N]o, Rolla is good; she’s fine; we trust our
managers.” Mahran also asserted that Judeh overheard
another pharmacist say that he would not “go to [a] mar-
riage of brown people.” When he complained to Brown-
Scott, she brushed it off by saying, “there is no racial dis-
crimination here; you see I am African-American.”
No. 19-2911 7
Mahran’s religious-accommodation claim rested on his
contention that Advocate denied prayer breaks to Muslims.
During each shift, pharmacists were entitled to take two
15-minute breaks and one 30-minute meal break, but they
had to stagger their breaks to ensure adequate coverage in
the pharmacy. Muslim pharmacists used these breaks to say
daily prayers. Mahran alleged that over time, Sweis became
concerned that the prayer breaks were negatively impacting
patient care and prohibited Muslims from praying during
the two 15-minute breaks. He claimed that the clinical
manager of the pharmacy department told another Muslim
pharmacist to “pass the message” to all Muslim pharmacists
that they were no longer permitted to use their breaks for
prayers. Mahran also asserted that the evening supervisor
once prevented him from taking a prayer break and told him
he couldn’t take prayer breaks anymore.
Advocate moved for summary judgment on all claims,
and the judge granted the motion in two separate orders.
Mahran challenges only two aspects of the judge’s analysis,
so we limit our discussion accordingly. First, in rejecting his
hostile-workplace claim, the judge considered only his
allegations of offensive comments, concluding that the
comments, as Mahran described them, were neither severe
nor pervasive. That was enough to defeat the claim.
Second, the judge ruled in Advocate’s favor on the
religious-accommodation claim. The parties had agreed in
their summary-judgment briefing that to establish a prima
facie case, Mahran needed to show that (1) his religious
practice conflicted with an employment requirement; (2) he
brought the need for a religious accommodation to his
employer’s attention; and (3) the unaccommodated religious
8 No. 19-2911
practice was the basis of an adverse employment decision.
EEOC v. United Parcel Serv. (“UPS”), 94 F.3d 314, 317 (7th
Cir. 1996). 3 The judge adopted this statement of law and
expressly noted that the parties agreed on the legal standard.
Then, applying the agreed-upon legal framework, the judge
ruled that Advocate was entitled to summary judgment
because Mahran presented no evidence that he suffered an
adverse employment action based on his prayer breaks.
II. Discussion
We review a summary judgment de novo, construing the
record in the light most favorable to the nonmoving party
and drawing all reasonable inferences in his favor. James v.
Hale, 959 F.3d 307, 314 (7th Cir. 2020). Although Mahran was
represented by counsel in the district court, he filed his
notice of appeal pro se. When we asked him to clarify if he
intended to proceed without counsel, he asked us to appoint
an attorney to represent him on appeal. We denied the
motion because Mahran does not satisfy the requirements to
proceed in forma pauperis. But we appointed a pro bono
lawyer as amicus curiae to argue for reversal. Mahran
accepted the arguments advanced by the amicus and did not
file his own briefs. 4
3 Our articulation of the elements of a prima facie case in UPS uses the
phrase “adverse employment decision.” EEOC v. United Parcel Serv.
(“UPS”), 94 F.3d 314, 317 (7th Cir. 1996). In his district-court brief,
Mahran misquoted this passage from UPS, using the phrase “adverse
employment action.” The judge adopted the mistaken quotation in her
decision.
4The court thanks amicus curiae Randall D. Schmidt and the Edwin F.
Mandel Legal Aid Clinic of the University of Chicago Law School.
No. 19-2911 9
Mahran’s amicus challenges only two aspects of the
judgment below. First, he argues that the religious-
accommodation claim should be reinstated because an
employer’s failure to accommodate an employee’s religious
practice is itself actionable, regardless of whether an adverse
employment action resulted. Second, he asks us to reinstate
the hostile-workplace claim because the judge considered
only the alleged offensive comments instead of evaluating
the totality of the evidence Mahran adduced.
A. Religious-Accommodation Claim
Relying on our decision in UPS, 94 F.3d at 317, the parties
agreed in the district court that Mahran needed to show that
his unaccommodated religious practice was the basis of an
adverse employment action in order to establish a prima
facie case on his religious-accommodation claim under
Title VII. The judge entered summary judgment for
Advocate on this claim because no evidence shows that
Mahran’s prayer breaks resulted in an adverse employment
action against him. Mahran’s amicus now reverses course,
arguing that an employer’s failure to accommodate an
employee’s religious practice is itself actionable even if it
does not lead to an adverse employment action, such as
discipline or termination. The amicus contends that this is
the best reconciliation of our precedents, and if it is not, then
UPS should be overruled.
This argument was not raised in the district court and is
therefore waived. “[A] party opposing a summary judgment
motion must inform the trial judge of the reasons, legal or
factual, why summary judgment should not be entered.”
United States v. Ritz, 721 F.3d 825, 827 (7th Cir. 2013) (quota-
tion marks omitted). Arguments raised for the first time on
10 No. 19-2911
appeal are deemed waived. Id. As the district judge herself
noted, Mahran expressly agreed that to establish a prima
facie case on his religious-accommodation claim, he must
show that he suffered an adverse employment action as a
result of his unaccommodated religious practice. He cannot
win reversal by adopting the opposite position now.
In his reply brief, amicus suggests that circuit precedent
so clearly required proof of an adverse employment action
that any argument to the contrary would have been futile in
the district court. We have on rare occasions reviewed a pure
issue of law raised for the first time on appeal if raising the
issue in the district court would have been futile. See, e.g.,
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 351 (7th
Cir. 2017) (en banc).
We decline to take that unusual step here. It would not
have been futile for Mahran to challenge the way in which
our decision in UPS articulated the elements of a religious-
accommodation claim under Title VII. Other plaintiffs and
judges had done so before him. See, e.g., Nichols v. Ill. Dep’t of
Transp., 152 F. Supp. 3d 1106, 1121–22 (N.D. Ill. 2016). In-
deed, the judge took note of the Nichols case when she
accepted the parties’ agreed-upon statement of the legal
framework as articulated in UPS.
It would be especially improper for us to accept this stark
turnabout in light of the Supreme Court’s recent decision in
United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). There
the Ninth Circuit identified a new legal issue not raised by
the parties and sua sponte appointed three amici to address
it. Id. at 1578. The court eventually sided with the amici, but
the Supreme Court vacated the decision, explaining that by
sua sponte recasting the issue on appeal and appointing
No. 19-2911 11
amici to advance the new argument, “the appeals panel
departed so drastically from the principle of party presenta-
tion as to constitute an abuse of discretion.” Id.To be sure, this case doesn’t present the kind of egregious
judicial transformation that occurred in Sineneng-Smith,
where the Ninth Circuit injected a legal theory of its own
making into the case and then appointed counsel to argue it.
Here the about-face originated with the amicus, not the
court. But Sineneng-Smith clearly counsels against addressing
an issue of law presented by a nonparty for the first time on
appeal. It would be improper to relieve Mahran of his
waiver here.
B. Hostile-Workplace Claim
Mahran’s amicus also contends that the judge ignored
relevant evidence in her evaluation of the hostile-workplace
claim. The judge explained that Mahran proffered two types
of evidence in support of this claim: allegedly offensive
comments and disparate treatment. She decided that it was
more appropriate to consider Mahran’s disparate-treatment
evidence separately, not in relation to his hostile-
environment claim. Considering only Mahran’s allegations
about offensive comments, she concluded that no reasonable
jury could find that Advocate subjected him to a hostile
work environment.
Separating the evidence into one analytical category or
another is understandable but mistaken under recent circuit
precedent. As explained in Ortiz v. Werner Enters., Inc.,
834 F.3d 760, 765 (7th Cir. 2016), it’s best to resist the tempta-
tion to rigidly compartmentalize the evidence in discrimina-
tion cases into different analytical boxes; rather, “all
12 No. 19-2911
evidence belongs in a single pile and must be evaluated as a
whole.” Id. at 766.
Although Mahran’s evidence should have been consid-
ered more holistically, we’re confident that summary judg-
ment for Advocate was proper. Our review is de novo, and
on this record—construed in its entirety and in Mahran’s
favor—no reasonable jury could find that Advocate subject-
ed him to a hostile work environment on the basis of his
religion, race, or national origin.
Mahran brought this claim under three statutes—
Title VII, 42 U.S.C. § 1981, and the IHRA—but the legal
standard is the same under all three. To prevail, a plaintiff
must show that “(1) the work environment was both objec-
tively and subjectively offensive; (2) the harassment was
based on membership in a protected class or in retaliation
for protected behavior; (3) the conduct was severe or perva-
sive; and (4) there is a basis for employer liability.” 5 Abrego v.
Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018) (quotation marks
omitted). Whether harassment qualifies as severe or perva-
sive depends on contextual factors such as “the frequency of
improper conduct, its severity, whether it is physically
threatening or humiliating (as opposed to a mere offensive
utterance), and whether it unreasonably interferes with the
employee’s work performance.” Id. (quotation marks omit-
ted).
5 This test from the Title VII framework is equally applicable to § 1981
and IHRA claims. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383
(7th Cir. 2016) (noting that the same framework applies to Title VII and
IHRA claims); Lane v. Riverview Hosp., 835 F.3d 691, 695 (7th Cir. 2016)
(noting that the same framework applies to Title VII and § 1981 claims).
No. 19-2911 13
Mahran has not made the required showing. The conduct
he complains of either lacks factual support or does not
remotely qualify as objectively offensive harassment based
on a protected trait. Even if some of his evidence fits the bill,
the harassment was not so severe or pervasive that it altered
the conditions of his employment.
Mahran complains that Advocate created a hostile work
environment by denying him specialized ICU training,
paying him less than other pharmacists, rejecting his request
for vacation time, hiring non-Muslims as full-time pharma-
cists before him, and disciplining and later firing him. But he
has not shown that any of these incidents amounted to
objectively offensive harassment based on his race, religion,
or national origin. He was denied ICU training not because
of his race or religion but because he was not hired to be an
ICU pharmacist. There is no evidence that similarly situated
pharmacists were paid more than him.
Regarding time off, the record reflects that Mahran was
denied vacation time for the 2016 Eid al-Fitr holiday because
too many other pharmacists had already requested and been
granted the same days off; indeed, the coworkers who
received the vacation days were other Muslims. Mahran
points to his coworker Khouri as a similarly situated em-
ployee whose vacation requests were granted more often.
But the record shows that some of her days off actually
involved shift trades with other pharmacists, which ensured
full coverage in the pharmacy; others were granted because
she was getting married, which Advocate treated as an
extenuating circumstance. Whatever the wisdom or fairness
of that decision, it’s not evidence of racial or religious dis-
crimination.
14 No. 19-2911
As for Bukowski and Radic, Advocate hired them as full-
time pharmacists without a probationary period because
they had prior hospital experience. And finally, Mahran has
no evidence that Advocate disciplined and ultimately fired
him for any reason other than that he was not meeting
legitimate work expectations. In sum, Mahran has not
shown that any of these incidents—independently or in
combination—contributed to an environment of severe or
pervasive racial or religious harassment.
That leaves the allegedly offensive comments. According
to Mahran’s version of events, Brown-Scott responded to his
complaints about racism by referring to her own race; she is
black. An employee in human resources assured him that
Sweis was not a racist and that she trusted her. Sweis once
remarked that pharmacists in Egypt might prioritize orders
in a certain way, but it was different in the United States.
None of these remarks is objectively offensive; no reasonable
person could find any of them hostile or abusive. Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998).
Mahran also claimed that his coworker Judeh overheard
another pharmacist say that he would not “go to [a] mar-
riage of brown people.” This comment appears only in
Mahran’s deposition, and the judge correctly excluded it as
inadmissible hearsay. See FED. R. EVID. 801(c); see also
Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). The
same analysis applies to Mahran’s allegation that another
Muslim pharmacist told him that the clinical manager asked
him to pass on the message that Muslim pharmacists were
not permitted to take prayer breaks. Setting aside the hear-
say problem, nothing in the record suggests that this alleged
“message” was actually carried out in fact. Regardless, these
No. 19-2911 15
isolated, offhand comments—not directed at Mahran him-
self—do not amount to an objectively hostile work environ-
ment. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271–72
(7th Cir. 2004).
For these reasons, summary judgment for Advocate was
clearly appropriate.
AFFIRMED