# 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,
J udge

.

O R D E R

Sekou Cherif sued the Department of Vete rans 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 cont ests that ruling on appeal. We affirm.

I. Background

The following facts are undisputed, exce pt 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 He spent all but his NONPRECEDENTIAL DISPOSITION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 onl y in accordance with Fed. R. A pp . P. 32.1No. 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 th e 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 pati ent. 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 qu estioned, 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 ag ain (this time for two weeks) on the

basis of several medication errors he alle gedly made that March. (Medication errors include dispensing the wrong dose, quantity, or type of medication to a patient.) For instance, when the precise individual dosage s 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 stoc k 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 p articipated in an un successful mediation. Shortly after his suspension ended, Cherif filed a formal complaint of discrimination with the Department’s EEO office in early September. Cherif assert ed that his August suspension was motivated by discriminatio n on account of his race, religion, and national origin.

Then on October 27, 2011, Rooney recommend ed that Cherif be fired based on previous misconduct plus a new September inci dent in which Cherif failed to cooperate and disrespected his immediate supervis or Glen Ezaki. Another pharmacist had reported that on a busy day, Cherif refus ed to answer phones, help at the pick-up window, or check in prescription orders wh en there was a backup. Cherif denies thisNo. 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, Ezak i 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 anot her 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 in teraction” 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, e xplaining that he filled the prescription because the attending physician already ha d overridden the critical-interaction warning. The director of the hospital, Mi chael 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 maki ng his decision, he took into account “your years of service, your past work record, th e seriousness of the offenses with which you have been charged, and whether there are an y mitigating or extenuating circumstances which would justify mitigation of the proposed penalty.”

The day after Rooney recommended (for th e second time) that Cherif be fired, Cherif amended his formal EEO complaint to include the proposed discharge as an

incident of unlawful discrimination. A fina l 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 fals e and that the actual reason was unlawful discrimination. (Cherif also brought a reta liation 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 wh o made the dismissal recommendation, harbored discriminatory motives. Cherif esse ntially conceded the actions for which he was disciplined but rejected Rooney’s characte rizations of those actions as misconduct. Cherif challenged the propriety of the accu sations of medication errors in March 2011, asserting that Rooney’s charges of faul t 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 physicianNo. 14-3598 Page 4

for an alternative when the “high alert medi cation” was out of stock, Cherif asserted that it was the responsibility of the “inpu tting pharmacist”—a role he was not playing at the time—to alert the physician. Ezaki te stified 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 prescr iptions for “appropriateness, choice of drug, route of administration and the amount.”

In addition, Cherif submitted depositi on 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 medi cation errors while burying similar errors made by other pharmacists. Additionally, Cher if 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 th e 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 no t direct evidence of discrimination. And analyzing Cherif’s discrimination cl aim 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 discrimin ation because he had not identified any similarly situated employees outside his pr otected groups (black , Muslim, of African national origin) that were treated more fa vorably. The court next rejected Cherif’s argument that the explanation for disciplinin g 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 action s, 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 th e indirect, burden-shifting method of McDonnell Douglas . It is undisputed that Cherif is a me mber of a protected class and that his

dismissal was an adverse action. But Cherif’s discrimination claim falters because heNo. 14-3598 Page 5

did not produce evidence that any similarl y 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 coop erate 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 th is argument by failing to identify Bano as a comparator in the district court. We agr ee. 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 situat ed 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 incl udes 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 Cn ty. 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.