Cherif v. Department of Veterans Affairs et al
Filing
83
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/30/2014:Civil case terminated. Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SEKOU CHERIF,
Plaintiff,
Case No. 12 C 7576
v.
Hon. Harry D. Leinenweber
DEPARTMENT OF VETERANS AFFAIRS,
Defendant.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
Sekou Cherif (“Cherif”), an African-American male Muslim began
working for the Department of Veterans Affairs (the “VA”) as a
staff pharmacist in 1995.
In 2005, Cherif was transferred to the
VA’s Westside Hospital in Chicago, which is now known as the Jesse
Brown VA Hospital.
pharmacy,
his
As a staff pharmacist in the outpatient
primary
function
was
to
“assure
the
safe
and
appropriate use of drugs.” His duties included keeping “abreast of
current
medical
and
pharmaceutical
literature,
reviewing
all
physician medication orders for “appropriateness, choice of drug,
route of administration and the amount,” and filling all orders in
a timely fashion.
Glenn Ezaki (“Ezaki”), male, Japanese-American,
Protestant, was Cherif’s first-line supervisor; Isabel Savanson
(“Savanson”) was his second-line supervisor; and Dr. Richard Rooney
(“Rooney”), male, Caucasian, Catholic, Chief of Pharmacy Services
was Cherif’s third-line supervisor.
Ezaki considered him an
average employee at best and consistently ranked him in the middle
performance category.
II.
A.
Starting
in
DISCUSSION
The Complaints Against Cherif
October
2009,
Cherif
was
charged
with
“inappropriate and disrespectful conduct toward a patient and a coworker.”
In July 2010 Cherif was reprimanded for causing an
unnecessary delay in processing a patient’s prescription.
In
August 2010, Cherif was suspended from work after a physician
complained
that
he
was
“extremely
confrontational”
questioning him about a medication dosage.
while
In August 2011, Cherif
was again suspended from work after management investigated a
series of medication errors in made in March 2011.
In October 2011
Cherif was issued a proposed removal after being charged with
failing to cooperate with a team member, providing poor customer
service to patients, and being disrespectful to his supervisor.
This proposed removal was rescinded and reissued on February 22,
2011 to include a more recent medication error.
Finally, on April
6, 2012, Cherif was removed from his position as a staff pharmacist
by action of Director Michael Anaya (“Anaya”), male, Hispanic,
Catholic, based on the recommendation of Rooney.
The latter’s
recommendation was based upon his belief that Cherif made a series
of
errors
involving
high
alert
medications
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which
would
have
increased the harm to the veterans taking them and that Cherif
showed no remorse for his mistakes and accepted no responsibility
for his actions.
B.
Cherif’s Responses
Cherif does not dispute the allegations about the incident
with the patient and co-worker on October 2009.
For that incident
he merely points out this was the first such complaint made against
him.
He also does not dispute the allegations of poor customer
service, a medication error and a delay in treatment for which he
was counseled for in July 2010.
He does, however, dispute the
propriety of the June 2010 reprimand for delay in processing a
patient’s prescription.
for such a delay.
He contends that there are many reasons
He disputes the propriety of the suspension in
August 2010, arising from a physician complaint about his behavior
about a prescription dosage.
He filed a grievance and the seven-
day suspension was reduced to three days.
notice
of
proposed
suspension
he
He contends that the
received
in
August
2011,
concerning a series of medication errors he alleged made in March
2011 was not warranted.
substance.
proposed
He contends that the allegation lacked
He disputes the accuracy of the facts justifying the
removal
dated
refutation in writing.
October
27,
2011,
and
he
placed
his
Essentially he contends that he was blamed
for actions of the team member who complained about him (Thelma
Washington).
With
regard
to
the
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disrespect
shown
to
his
supervisor, Ezaki, he contends that when he was summoned to his
office he was in the midst of completing a prescription order for
a patient waiting in the emergency room. Finally, he contends that
the charge of poor pharmaceutical judgment which led to the reissue
of the removal on February 22, 2012 was not justified because the
prescription
in
question
had
been
written
by
an
experienced
attending physician.
C.
Cherif’s Prior EEO Activity
Cherif first made contact with a counselor at the Equal
Employment Opportunity Commission (the “EEOC”) in June 2010 but
made no formal complaint.
He next made contact with the EEOC in
June 2011, and cooperated with an investigation.
participated in mediation with no resolution.
The parties
A formal Complaint
of Discrimination was filed on September 5, 2011.
The claims
included whether Cherif was subjected to a hostile work environment
based on religion, national origin, race and reprisal when he was
accused of not calling a doctor for alternative medication, for
being inflexible with his lunch breaks, leaving documentation of
disciplinary action against him in a public area and the work
suspension in August 2011.
His complaint was subsequently amended
to include both the October 2011 and the February 2012 proposed
letters of removal.
On August 22, 2012 the EEOC denied all of his
claims.
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The problem with attempting to tie his EEOC activity into his
termination is that there was no evidence produced showing that
either
Anaya
or
Rooney
was
aware
of
his
EEOC
complaints.
Furthermore, most of the alleged discriminatory actions occurred
prior to Cherif filing his complaint with the EEOC.
D.
Cherif
Alleged Direct Proof of Discrimination
alleges
that
he
was
subjected
to
harassment
discrimination because he was a Muslim of African descent.
and
His
first bit of evidence is that he was the only black male pharmacist
during the time he was employed.
However, as Rooney pointed out,
he hired two black female pharmacists.
Moreover, there was no
evidence submitted that any black, male pharmacist was refused
employment by the VA.
The second bit of evidence is that he
complained multiple times to Rooney about Ezaki’s evaluation and
that he was being micromanaged.
He further complained about being
suspended during a Muslim holiday. (The explanation was that if he
was to serve a suspension it would be better for him financially to
serve it while he was on holiday).
Other allegations are that
Rooney did not have personal knowledge of the alleged wrongdoings
charged to Cherif.
However, this is almost always the case with
any decision maker:
the decision is made on what the manager is
told by others.
Cherif contends that Rooney displayed animosity
toward Muslims by virtue of two remarks: (1) comparing Cherif, a
Muslim, with himself, a Catholic and (2) describing a female Muslim
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technician as a woman with a “rag” or “scarf” on her head.
The
context of the first is unknown but was several years before Cherif
was fired.
The second was in an attempt to determine who had given
a
a
patient
specific
medication.
scarf(rag) or the blond?
Cherif
himself
helped
Was
it
the
one
with
the
It turned out that it was the blond.
to
defray
any
untoward
inference
of
animosity, when he testified in an affidavit filed with EEOC that
he never heard either Ezaki or Rooney make any derogatory comment
against him based on his race, national origin, religion or prior
EEOC activity.
Stray remarks made around the time of the decision
can sometimes raise an inference of discrimination by the decision
maker, but
“Isolated
comments
that
are
no more
than
‘stray’
remarks’ in the workplace are insufficient to establish that a
particular
decision
was
motivated
by
discriminatory
animus.”
Hemsworth v. Quotessmith.com, Inc., 476 F.3d 487, 491 (7th Cir.
2007).
Consequently there is no direct proof of discrimination.
E.
Indirect Proof of Discrimination
Under the well-known indirect method of proof under McDonnell
Douglas Corp., 411 U.S. 792, 802 (1973), a claimant who lacks
direct proof can proceed indirectly by establishing membership in
a protected class (or protected activity), who is performing his
job to legitimate expectations, who suffers an adverse employment
action, and where similarly treated employees outside his protected
class are treated more favorably.
It is incumbent upon a claimant
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to make this preliminary showing in order to shift the burden to
the employer to articulate a non-discriminatory reason for the
adverse action.
Id.
the four elements.
Here, Cherif has failed to establish two of
He, of course, has established that he is in a
protected class (African-Muslim) and that he suffered an adverse
employment action, his discharge.
However, he has failed to
establish that he was meeting the VA’s legitimate expectations.
The VA here has listed numerous shortcomings that Cherif was
charged with during his tenure with the VA.
He has admitted to
some of them and contended that the rest were not valid.
However,
where Cherif fall short is to supply any proof that Rooney or Anaya
had any reason to disbelieve the charges he contests.
As has been
said over and over federal courts do not sit as supra-personnel
department to reexamine employment decisions.
The question is not
whether the decision was right or wrong but whether it was based on
a discriminatory motive.
Balderston v. Faribanks Morse Engine
Division of Coltec Industries, 328 F.3d. 309, 324 (7th Cir. 2003).
In addition to the foregoing, Cherif has also failed to
uncover any employee, who was not a member of his classification,
was treated more favorably.
any such employee.
He has admitted that he cannot name
His excuse is that on one occasion Rooney may
have said (he denied it) to a co-employee, Raffatt Bano, that she
was to report “medical” errors as “medical events.”
The problem
with this is twofold: Bano did not know what the definition of
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“medical error” was and Cherif failed to submit any evidence that
any
other
punishment.
pharmacist
had
committed
medical
events
without
In any event, to show “similar situated” a plaintiff
must show common supervisor and disparate treatment of employees
not in the same class.
Here even if you grant that pharmacists
were requested to under report medical errors, medical errors are
only one of numerous complaints lodged against Cherif by the VA.
He was charged with being rude to customers, doctors and his
supervisor, in addition to poor customer service and unreasonable
delay in processing prescriptions.
III.
CONCLUSION
Cherif having failed to set forth a prima facie case of
discrimination, including hostile work environment, or retaliation
has not met his burden of production.
Consequently, the VA’s
Motion for Summary Judgment is granted on those claims.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:10/30/2014
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