United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 27, 2016

Decided June 28, 2016

Before

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 15-2701

YOUSEF ISMAIL,

Plaintiff-Appellant,

v.

MEGAN J. BRENNAN,

Postmaster General

Defendant-Appellee.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 11-cv-08812

James B. Zagel,

Judge.

O R D E R

Yousef Ismail, who is of “Middle Eastern descent,” appeals the grant of summary 

judgment for his employer the United States Postal Service in this suit asserting claims 

under 42 U.S.C. §§ 2000e–2, 2000e–3 for disciplining him because of his race and 

national origin. Because the district court incorrectly concluded that Ismail had failed to 

establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), we vacate the district court’s order and remand the case for further 

proceedings.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-2701 Page 2

Ismail, who was born in Israel and grew up in Jordan, started working as a letter 

carrier in the Carpentersville Post Office in 2001. He filed the first of his two suits 

against the Post Office in 2003, alleging that the postmaster of the Carpentersville Post 

Office, Ralph Kaiser, harassed and disciplined him because of his race and national 

origin. That suit ended with summary judgment being granted against him. See Ismail v. 

Potter, 2006 WL 2989293 (N.D. Ill. Oct. 18, 2006).

The events that give rise to Ismail’s second discrimination suit occurred on the 

snowy morning of December 10, 2010, when he was sorting the mail for his route. We 

repeat the facts in the light most favorable to Ismail, the party opposing summary 

judgment. See Brooklyn Bagel Boys, Inc. v. Earthgrains Refrigerated Dough Products, Inc., 

212 F.3d 373, 377 (7th Cir. 2000). That day he was approached by his direct supervisor, 

Dawn Ellison, who asked if the snow would make him late delivering his mail. Ismail 

replied that he did not know. Anticipating a possible problem, Ellison alerted

Postmaster Kaiser, who in turn approached Ismail in his casing unit (the area of the post 

office where the letter carriers sort the mail for their routes). Kaiser asked Ismail why he 

would be late given that less than an inch of snow had fallen that morning. Ismail 

responded that he didn’t anticipate being late but that if Kaiser wanted to observe him 

delivering his route he was welcome to do so.

Shortly after Ismail began delivering his route, he noticed Kaiser sitting in his 

personal SUV watching him. Ismail ordinarily cut across the lawns of the homes on his 

route, but bushes blocked his path for the next stop, so he turned towards the sidewalk.

Kaiser yelled out that the sidewalk had a foot of snow and ice debris and that cutting 

across the lawn would be the shortest path between the houses. When Ismail continued 

toward the sidewalk, Kaiser ordered him to walk instead on the street where there was 

no snow. Ismail believed that walking in the street was dangerous, so he took a couple 

of steps on the sidewalk to get around the bushes, stepped onto the lawn, and headed 

toward the house.

Kaiser then got out of his vehicle, approached Ismail, and began screaming at

Ismail that he was not following orders and would be disciplined. Ismail, fearing for his 

safety, pulled out his cell phone and called the police. A police officer later arrived, 

asked a few questions, and brushed off the incident as a routine workplace dispute.

Upon returning to the post office, Kaiser contacted the Post Office’s labor 

relations department and explained that Ismail had disobeyed his orders when he

continued to walk on snow and ice debris on the sidewalk. According to Kaiser, labor 
No. 15-2701 Page 3

relations told him to have a second supervisor return with him to observe Ismail. Kaiser 

enlisted Ellison to return with him to follow Ismail.

Kaiser and Ellison located Ismail on his route and watched him delivering mail 

to several houses. According to Ismail, he continued to deliver mail by cutting across 

the lawns of each home, except for two residences that had asked letter carriers not to 

walk on their lawns. When Ismail finished that street’s deliveries, he was approached

by Ellison and Kaiser, who admonished him for failing to cut across lawns as instructed 

and for running late on his route. Ismail responded that he was doing the best he could 

and that he was on time for his route. Kaiser told Ismail to stop delivering mail and 

return to the post office.

Kaiser followed Ismail back to the post office, where he took Ismail’s keys and 

sent him home on “emergency placement” for failing to follow orders and for 

performing his duties in an unsafe manner. Ismail was on emergency placement for 

17 days. During this time he was not allowed to work and he was not paid. When 

Ismail eventually returned, Kaiser issued him a two-week, paid suspension. Ismail 

received back pay for the majority of the 17 days that he served on emergency 

placement.

Ismail filed an EEO complaint alleging that Kaiser had discriminated against him 

based on his race and national origin. In December 2011, Ismail brought this suit 

alleging that Kaiser disciplined him more harshly than other postal service employees 

because of his race and national origin.

Ismail’s difficulties at work continued. Three months later, in March 2012, he had 

a verbal altercation with a coworker that resulted in both men being fired (though they 

were later reinstated). According to Ismail, David Sherrill, a fellow letter carrier, 

approached him one morning, cursed at him, and told him that he would “snap his 

neck.” Ismail alerted his supervisor, Dennis Arneson, who had both men write out 

statements about what had happened. Kaiser then put both men on emergency 

placement and issued letters of removal. Ismail and Sherrill both grieved their 

terminations and were eventually reinstated, though Sherrill’s grievance was resolved 

faster than Ismail’s, and he returned to work seven weeks earlier. Kaiser was not 

involved in the grievance resolution process.

In June 2012 Ismail filed another EEO complaint about Kaiser’s conduct, alleging 

that Kaiser sent him a letter of removal in retaliation for his filing a lawsuit.
No. 15-2701 Page 4

In July, on Ismail’s first day back to work upon being reinstated, he had a

confrontation with Kaiser that resulted in his being sent home for the day. Ismail was 

sorting mail for the day’s delivery in his casing unit when Kaiser and Arneson 

approached him with a workplace rules handbook. Three times, Kaiser says, he said 

“good morning” to Ismail while walking by his casing unit, and Ismail ignored him. 

Kaiser told Ismail to read the section of the manual relating to courteousness in the 

workplace and asked him if he understood what it meant. Ismail replied that he did. 

According to Kaiser, Ismail then threatened to kill him. Kaiser left Ismail’s casing unit 

and called the police. Arneson, who was standing nearby, did not hear any threat. An 

officer arrived and interviewed the three of them but concluded that Kaiser’s 

uncorroborated account was insufficient to arrest Ismail. Kaiser put Ismail on 

administrative leave for the rest of the day, and the officer escorted Ismail from the 

building.

Ismail amended his EEO complaint to include these incidents and, in December 

2012, amended his complaint to add retaliation claims against Kaiser for the March and 

July incidents.

The district court granted the Postal Service’s motion for summary judgment. 

Regarding Ismail’s claim of discrimination, the court concluded that he failed to 

establish a prima facie case through the indirect method of proof. Ismail was not 

meeting his employer’s legitimate business expectations, the court said, because he 

disobeyed Kaiser’s directive in December 2010 to walk on the street in order to avoid 

snow that had accumulated on the sidewalks of his route. Moreover, Ismail had not 

identified any similarly situated comparators who were treated more favorably.

On appeal Ismail first challenges the district court’s conclusion that he failed to 

establish a prima facie case of discrimination. The court, he says, should not have relied 

on Kaiser's disputed testimony of his insubordination as the basis for concluding that 

he was not meeting his employer’s legitimate expectations. He adds that he should not 

have to show that he was meeting legitimate expectations because Kaiser is both the 

decision-maker and the person evaluating his performance.

The district court erred in requiring Ismail to establish that he was meeting his 

employer’s legitimate expectations. Ordinarily, that factor must be established by a 

plaintiff seeking to state a prima facie case of discrimination, see McDonnell Douglas 

Corp., 411 U.S. at 802; Gordon v. United Airlines, Inc., 246 F.3d 878, 885–86 (7th Cir. 2001). 
No. 15-2701 Page 5

But the test is flexible and may be unnecessary where, as here, “the issue is whether the 

plaintiff was singled out for discipline based on a prohibited factor,” Curry v. Menard, 

Inc., 270 F.3d 473, 477 (7th Cir. 2001) (quotation and internal citation omitted), or where

“the people judging [the plaintiff’s] performance were the same she accused of 

discriminating against her,” Oest v. Ill. Dept. Corr., 240 F.3d 605, 612 n.3 (7th Cir. 2001).

Ismail next challenges the district court’s determination that he had not 

identified a similarly situated employee who received better treatment. He points to

two individuals—not of Middle Eastern descent—who he believed were similarly 

situated employees yet were treated more favorably. First, he identified Don Daley, a 

letter carrier who had crashed his mail truck into a forklift and then left the scene of the

accident without notifying his supervisor or cleaning up the broken glass on the 

roadway. Daley was not put on emergency placement but issued merely a 14-day 

suspension for “failure to perform your duties in a safe manner” and “failure to report 

an accident.” The district court acknowledged that Daley violated the same standard of 

conduct as Ismail—not performing his duties in a safe manner—but found Daley’s 

violation less severe because he admitted to having crashed his truck and failed to 

report it, whereas Ismail threatened workplace safety by refusing to accept 

responsibility for his conduct. But to establish an inferential case of discrimination, 

Ismail had to show only that Daley violated the same rules by engaging in an act of 

comparable seriousness but received better treatment. See Coleman v. Donahoe, 667 F.3d 

835, 851 (7th Cir. 2012); Peirick v. IUPUI Athletics Dept., 510 F.3d 681, 689 (7th Cir. 2007); 

Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir. 2005). And a reasonable jury could conclude 

that Daley’s conduct, even if acknowledged, was far more dangerous—crashing his 

truck and leaving debris at the scene—than Ismail’s walking on top of snow. See Perez v. 

Thorntons, Inc., 731 F.3d 699, 704–05 (7th Cir. 2013) (jury must decide whether factual 

differences between extent and seriousness of two inventory control infractions 

supported employer’s differing discipline); Coleman, 667 F.3d at 851 (“[T]he employer 

cannot defeat a plaintiff’s prima facie case of discrimination on the theory that it applied 

its ‘no tolerance’ policy on threats to some workers while dismissing dangerous acts of 

others as mere ‘horseplay.’”); Srail v. Vill. of Lisle, 588 F.3d 940, 945 (7th Cir. 2009) 

(similarly situated comparator does not have to be identical in every respect and 

whether an employee is similarly situated is “usually a question for the fact-finder”).

Ismail also challenges the court’s conclusion that a second comparator, Dana

Hall, was not similarly situated because she was treated more harshly by being fired for 

her conduct. Hall, a window clerk, twice had reported to work acting erratically, as if 

she were intoxicated. The first time, Ellison watched Hall being rude to customers, slur 
No. 15-2701 Page 6

her speech, make wild gestures with her arms, and nearly fall over; Ellison sent her

home for the day but chose not to issue any discipline, a decision seconded by Kaiser. 

Less than three months later, Hall arrived at work smelling of alcohol, disregarded 

Kaiser’s instructions to secure a ride home, and drove her car out of the parking lot;

Kaiser again declined to discipline her, though he did call the police to inform them that 

Hall might be intoxicated and was driving. Significantly, however, Hall was fired for 

unrelated “attendance issues,” not these two incidents involving intoxication. After the 

incidents she merely was referred, with Kaiser’s approval, to the employee assistance 

program and allowed to continue working. A reasonable jury could conclude that Hall 

was treated more favorably than Ismail because, unlike his immediate emergency 

placement and suspension, she was allowed to rectify her misconduct before facing any 

punishment. Moreover, the district court erred by characterizing Hall’s conduct as 

potentially not of comparable seriousness; the Postal Service admits that showing up to 

work intoxicated poses a safety risk, and that Hall disobeyed Kaiser’s direct order not to 

drive home. 

Because we believe that Ismail has established a prima facie case of 

discrimination, he still bears the burden of showing that the Postal Service’s legitimate, 

nondiscriminatory reason for disciplining him—that he posed a safety risk and failed to 

follow a direct order from his supervisor—is pretextual. See McDonnell Douglas Corp., 

411 U.S. at 802–03; Chaib v. Geo Grp., Inc., No. 15-1614, 2016 WL 1375869, at *3 (7th Cir. 

Apr. 6, 2016). This is an issue that the district court did not reach.

But we also believe that Ismail has presented enough evidence to create a fact 

question concerning pretext. Establishing pretext requires Ismail to show that the 

employer’s stated reason for disciplining him was “a lie,” Naik v. Boehringer Ingelheim 

Pharm., Inc., 627 F.3d 596, 601 (7th Cir. 2010) (quoting Ineichen v. Ameritech, 410 F.3d 956, 

961 (7th Cir. 2005)). As discussed above, Ismail provided evidence that Daley and Hall 

were situated similarly to him but treated more leniently. Because this evidence permits 

an inference that the defendant selectively enforced its policies on workplace safety and 

disobedience of supervisor orders, a fact question exists over the Postal Service’s stated 

reason for disciplining him. See Coleman, 667 F.3d at 857 (“[S]elective enforcement of a 

rule calls into question the veracity of the employer’s explanation.”); Curry, 270 F.3d 

at 479; Gordon, 246 F.3d at 892; Russell v. Bd. of Tr. of Univ. of Ill. at Chi., 243 F.3d 336, 342 

(7th Cir. 2001). 

What is more, Ismail has provided sufficient contextual evidence that a 

reasonable jury could find the Postal Service’s explanation for his discipline “fishy 
No. 15-2701 Page 7

enough to support an inference that the real reason” was discriminatory. Loudermilk 

v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011); Coleman, 667 F.3d at 854–55. First, 

Kaiser testified in his deposition that he typically did not discipline employees and left 

such decisions to the discretion of the direct supervisors. Second, he didn’t normally 

observe letter carriers on their routes and this was the only time he ever instructed a 

mail carrier where to walk while delivering mail. Finally, when Kaiser put Ismail on 

emergency placement, it was only the second time he had ever put an employee on 

emergency placement in more than 20 years as postmaster at Carpentersville despite 

knowing that other employees had violated safety rules or disobeyed orders.

One issue remains. Ismail also argues that the district court erred when it 

granted summary judgment against him on his retaliation claim because he did not 

provide evidence of a causal connection between a protected activity and an adverse 

employment action. But Ismail did provide such evidence by amassing a convincing 

mosaic of circumstantial evidence that would permit a reasonable juror to infer that his 

filing of various EEO complaints and this lawsuit resulted in adverse actions. 

See Coleman, 667 F.3d at 860; Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 673 

(7th Cir. 2011). Ismail provided evidence of suspicious timing: he pointed out that he 

was put on emergency placement and issued a letter of removal three months after 

filing this lawsuit, and he was accused of threatening Kaiser and sent home for the day 

only a few weeks after filing an EEO complaint. See Coleman, 667 F.3d at 861 (“[A]n 

interval of a few weeks or even months may provide probative evidence of the required 

causal nexus.”) Although “temporal proximity between an employee’s protected 

activity and an adverse employment action is rarely sufficient to show that the former 

caused the latter,” O’Leary v. Accretive Health Inc., 657 F.3d 625, 635 (7th Cir. 2011); see 

Scaife v. Cook Cnty., 446 F.3d 735, 742 (7th Cir. 2006), overruled on other grounds by Hill v. 

Tangherlini, 724 F.3d 965 (7th Cir. 2013), Ismail also has provided evidence of pretext. He 

has introduced evidence that supports an inference that Kaiser lied when he stated that 

Ismail’s threat was the reason he called the police in July and had Ismail put on 

administrative leave. Ismail denies making any threat; Arneson, who was nearby, did 

not overhear any threat; and the police were unable to verify that a threat had been 

made.

Accordingly, we VACATE the district court’s judgment, and REMAND for 

further proceedings.