Sekou Cherif v. DVA , 617 F. App'x 571 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 9, 2015
Decided July 1, 2015
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-3598
Appeal from the
SEKOU CHERIF, United States District Court for the
Plaintiff-Appellant, Northern District of Illinois,
Eastern Division.
v.
No. 1:12-cv-07576
ROBERT A. McDONALD,
Secretary of Veterans Affairs, Harry D. Leinenweber,
Defendant-Appellee. Judge.
ORDER
Sekou Cherif sued the Department of Veterans Affairs under Title VII of the Civil
Rights Act of 1964, see 42 U.S.C. §§ 2000e-2 et seq., claiming that the Department fired
him because he is black, a Muslim, and from Africa. The district court granted summary
judgment for the Department, and Cherif contests that ruling on appeal. We affirm.
I. Background
The following facts are undisputed, except where noted. Cherif began working
as a staff pharmacist for the Department of Veterans Affairs in 1996. He spent all but his
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first three months at Lakeside VA Hospital and then, after a merger, Jesse Brown VA
Hospital in Chicago. Richard Rooney was the Chief of Pharmacy at Lakeside and then
at Jesse Brown during Cherif’s tenure.
Beginning in the summer of 2009, Cherif was disciplined multiple times with
reprimands or harsher sanctions, culminating with his dismissal in April 2012. First, in
July 2009 Cherif received a “written counseling” accusing him of delaying a patient’s
treatment and providing poor customer service. A few months later Rooney
admonished Cherif for disrespecting a patient. In June 2010 Rooney reprimanded Cherif
for causing unnecessary delay in filling a patient’s prescription. Later that summer
Cherif was suspended for three days based on these accusations and a new incident: A
psychiatrist complained that Cherif had questioned, in an “extremely confrontational
tone,” the appropriateness of a medication the doctor had prescribed and
inappropriately discussed his concerns with the patient.
In August 2011 Cherif was suspended again (this time for two weeks) on the
basis of several medication errors he allegedly made that March. (Medication errors
include dispensing the wrong dose, quantity, or type of medication to a patient.) For
instance, when the precise individual dosages of a “high alert medication” to prevent
blood clots was not in stock, Cherif told the patient that the medication would be
mailed to him when it came back in stock instead of consulting the prescribing
physician about an alternative. Cherif also was held accountable for mailing the wrong
medication to a patient and for filling only one of two insulin prescriptions for another
patient.
In June 2011, between the March events and August suspension, Cherif contacted
a counselor with the Department’s internal Equal Employment Office to complain about
discrimination. Cherif and Rooney then participated in an unsuccessful mediation.
Shortly after his suspension ended, Cherif filed a formal complaint of discrimination
with the Department’s EEO office in early September. Cherif asserted that his August
suspension was motivated by discrimination on account of his race, religion, and
national origin.
Then on October 27, 2011, Rooney recommended that Cherif be fired based on
previous misconduct plus a new September incident in which Cherif failed to cooperate
and disrespected his immediate supervisor Glen Ezaki. Another pharmacist had
reported that on a busy day, Cherif refused to answer phones, help at the pick-up
window, or check in prescription orders when there was a backup. Cherif denies this
No. 14-3598 Page 3
conduct. The next when day Ezaki called Cherif into his office, Cherif refused to leave
the pharmacy station until he finished what he was doing. Despite Rooney’s
recommendation that Cherif be fired, Ezaki gave him a positive annual performance
evaluation in November 2011, rating Cherif as “fully successful” in all categories from
October 2010 through September 2011.
Rooney then rescinded his October 2011 recommendation that Cherif be fired but
reinstated it in February 2012 after another incident of alleged misconduct. On
January 6, 2012, Cherif filled a prescription for a budesonide inhaler for a patient who
also took ritonavir. He did so without contacting a physician despite a computer
warning alerting him to a “critical drug interaction” that could cause serious adverse
medical problems and an e-mail sent to him two weeks earlier alerting him to the same.
Cherif contested the proposed discharge, explaining that he filled the prescription
because the attending physician already had overridden the critical-interaction
warning. The director of the hospital, Michael Anaya—who was unaware of Cherif’s
race, religion, or national origin—accepted Rooney’s recommendation and fired Cherif
in April 2012. Anaya told Cherif that in making his decision, he took into account “your
years of service, your past work record, the seriousness of the offenses with which you
have been charged, and whether there are any mitigating or extenuating circumstances
which would justify mitigation of the proposed penalty.”
The day after Rooney recommended (for the second time) that Cherif be fired,
Cherif amended his formal EEO complaint to include the proposed discharge as an
incident of unlawful discrimination. A final decision rejecting his EEO complaint was
issued after his discharge. Cherif then sued the Department in federal court, asserting
that its explanation for firing him is false and that the actual reason was unlawful
discrimination. (Cherif also brought a retaliation claim and another discrimination
claim on a theory that the Department had created a hostile work environment. Cherif
does not pursue those issues on appeal, so we discuss them no further.)
At summary judgment Cherif pursued a “cat’s paw” theory of discrimination,
arguing that Rooney, the supervisor who made the dismissal recommendation,
harbored discriminatory motives. Cherif essentially conceded the actions for which he
was disciplined but rejected Rooney’s characterizations of those actions as misconduct.
Cherif challenged the propriety of the accusations of medication errors in March 2011,
asserting that Rooney’s charges of fault are belied by hospital policies and his
performance rating as “fully successful” for the rating period including that month. For
example, concerning the accusation that he failed to contact the prescribing physician
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for an alternative when the “high alert medication” was out of stock, Cherif asserted
that it was the responsibility of the “inputting pharmacist”—a role he was not playing
at the time—to alert the physician. Ezaki testified to the contrary. As to the complaint
from the psychiatrist, Cherif asserted that in challenging the doctor’s prescription, he
was simply fulfilling his duty to review prescriptions for “appropriateness, choice of
drug, route of administration and the amount.”
In addition, Cherif submitted deposition testimony from Raffat Bano, another
pharmacist at Jesse Brown VA Hospital, who said Rooney had instructed her to let
supervisors address medication errors made by other pharmacists instead of self-
reporting them since documented errors reflect poorly on the pharmacy. (Rooney
denies having given Bano this instruction.) Cherif argued that Rooney was singling him
out by accusing only him of committing medication errors while burying similar errors
made by other pharmacists. Additionally, Cherif asserted that when he asked Rooney
not to suspend him during a Muslim holiday, Rooney replied, “Your Muslim issue is
not my Muslim issue.” This comment, Cherif contended, was evidence of
discriminatory animus. Rooney denied having said that.
In granting summary judgment for the Department, the district court first
concluded that Cherif’s suspension during a Muslim holiday and Rooney’s alleged
remark about Cherif’s “Muslim issue” was not direct evidence of discrimination. And
analyzing Cherif’s discrimination claim under the indirect method of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the court concluded that Cherif had not
established a prima facie case of discrimination because he had not identified any
similarly situated employees outside his protected groups (black, Muslim, of African
national origin) that were treated more favorably. The court next rejected Cherif’s
argument that the explanation for disciplining and firing him was pretextual because
Cherif had not submitted evidence showing that Rooney or Anaya did not actually
believe, at the time of the adverse actions, that Cherif had committed the charged
misconduct.
II. Discussion
Cherif’s main argument on appeal is that his evidence was sufficient to create a
triable issue of material fact under the indirect, burden-shifting method of McDonnell
Douglas. It is undisputed that Cherif is a member of a protected class and that his
dismissal was an adverse action. But Cherif’s discrimination claim falters because he
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did not produce evidence that any similarly situated employee outside his protected
classes was treated more favorably.
On appeal Cherif points to Bano as a similarly situated employee. He says that
she, too, was charged with failing to cooperate during the September 2011 incident but
was subjected to more lenient punishment; she was merely admonished whereas
Rooney used this incident as support for his recommendation that Cherif be discharged.
The Department argues that Cherif waived this argument by failing to identify Bano as
a comparator in the district court. We agree. Cherif cannot make this argument for the
first time on appeal. See Gaines v. K-Five Constr. Corp, 742 F.3d 256, 261 (7th Cir. 2014);
Williams v. Dieball, 724 F.3d 957, 961 (7th Cir. 2013).
In any event, Bano is not similarly situated to Cherif. To be similarly situated, an
employee must be directly comparable in all material respects. See Moultrie v. Penn
Aluminum Int’l, LLC, 766 F.3d 747, 753 (7th Cir. 2014); Tank v. T-Mobile USA, Inc.,
758 F.3d 800, 808 (7th Cir. 2014). That includes similar disciplinary records. See Taylor-
Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 492 (7th Cir. 2014); Amrhein v.
Health Care Serv. Corp, 546 F.3d 854, 860 (7th Cir. 2008). Cherif was progressively
disciplined for a series of misconduct over the course of two years. Bano was not.
Cherif also argues that Rooney’s remark about his “Muslim issue” is direct
evidence of discriminatory animus. But this one stray remark, made neither in reference
to nor at the time of Cherif’s discharge, is insufficient to support a claim of
discrimination. See Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir.
2010); Petts v. Rockledge Furniture LLC, 534 F.3d 715, 721 (7th Cir. 2008).
AFFIRMED.