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, 

Plaintiff-Appellant, 

v. 

ROBERT A. McDONALD, 

Secretary of Veterans Affairs, 

 Defendant-Appellee.

 United States District Court for the 

Northern District of Illinois, 

Eastern Division. 

No. 1:12-cv-07576 

Harry D. Leinenweber, 

Judge. 

O R D E R 

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 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 14-3598 Page 2 

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 
No. 14-3598 Page 4 

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 selfreporting 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 
No. 14-3598 Page 5 

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 TaylorNovotny 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.