The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Naseeruddin Mahmood, who evidently is misnamed in the complaint
as Mahmood Naseer Uddin, has sued his employer, the City of
Chicago, for age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, and for national origin
discrimination and religious discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The City of
Chicago has moved for summary judgment. For the reasons stated
below, the Court grants the City's motion.
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). The Court must view
the facts in favor of the non-moving party and must draw all
reasonable inferences in favor of that party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Mahmood is a United States citizen but was born in Pakistan in
1953. He holds a bachelor's degree in accounting from the
University of Karachi in Pakistan and a master's in business
administration from the Keller Graduate School of Management in
Chicago. Mahmood is a practicing Muslim and has been his entire
Mahmood worked for the Chicago Department of Public Health
(CDPH) from 1988 until he was fired on November 7, 2002. During
his employment with the CDPH, Mahmood worked in the Finance
Department and was regularly promoted several times until he
obtained the position of Director of Fiscal Administration, a
position he held until he was fired. Mahmood claims that he was
fired because of his age, 49, his national origin, Pakistani, and
his religion, Muslim.
1. Religion and national origin discrimination claims
Mahmood does not claim that he has any direct evidence of
religion or national origin discrimination, so he must rely on
indirect evidence and the McDonnell Douglas burden-shifting
approach to make out a prima facie case. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Mahmood must produce
evidence that he: (1) was a member of a protected class; (2) was
meeting the City's legitimate performance expectations; (3)
suffered an adverse employment action; and (4) similarly situated
employees not in his protected class were treated more favorably.
Lalvani v. Cook County, Illinois, 269 F.3d 785, 789 (7th Cir.
The first and third elements are not in dispute; Mahmood was
fired, and he is a member of a protected class based on his
national origin and religion. The second and fourth elements of
the prima facie case, however, are disputed by the City.
As to the second element, the City claims that Mahmood was not
meeting reasonable performance expectations at the time he was fired. See Rand v.
CV Industries, Inc. 42 F.3d 1139, 1146 (7th Cir. 1994) (job
performance is to be judged at the time of discharge). Erlinda
Tzirides, Mahmood's direct supervisor from 1994 on, testified
that Mahmood's submitted untimely and inaccurate reports, refused
to provide her with needed information, and had problems dealing
with co-workers and subordinates. Pl. Ex. 18, Tzirides Dep. at
51-53. According to Tzirides, these problems went on for years
and finally came to a head on October 31, 2002, when Mahmood
allegedly refused to communicate with her. As a result, she
issued him a formal written warning which referred to
"[c]ontinuing performance problems with the accuracy of reports"
as well as "Insubordination: You refused to provide information I
asked for yesterday, and you again stated this morning that you
refuse to provide the information to me." The warning concluded
by stating that "[i]f this continues, I will be required to take
further action." Tzirides Aff. ¶ 33 & Ex. 13. Tzirides states
that Mahmood's performance "did not improve" following this
warning; Mahmood, she said, failed to communicate with her and
provide her with information she requested and would simply stare
at her when she made such requests. Id. ¶ 34. She then
consulted with the Commissioner of the CDPH, John Wilhelm, who
agreed to support her if she chose to fire Mahmood. Id. ¶ 35.
On November 7, 2002, Mahmood was terminated at Tzirides'
direction. Id. ¶ 36.
The issue of Mahmood's performance according to expectations is
genuinely disputed. First, though Mahmood's last two performance
reviews (for the period ending in September 2000 and the period
ending in April 2002) identify problems with the accuracy of his
reports, comparison of those reviews would support a finding that
the latter review indicates he had improved and was continuing to
do so. In addition, the September 2000 review, though noting problems, rated Mahmood's reports as "good" (3 out of a possible
5), and the April 2002 review gave him an improved rating of 3.5,
halfway between "good" and "very good." Second, there is likewise
a genuine factual dispute regarding the accuracy of the claim of
insubordination in Tzirides' October 31 warning; Mahmood denies
that he had refused to provide information to Tzirides as she
claimed in the warning. See Pl. Resp. to Def. Stmt. of Facts ¶
74 (citing plaintiff's affidavit). This is not simply, as the
City contends, Mahmood's subjective view of his own performance;
it is a denial that the claimed event occurred.
Mahmood's prima facie case founders, however, on the fourth
element: the requirement that he identify a similarly situated
employee outside his protected class who was treated more
favorably. Mahmood has made only the barest of efforts to satisfy
this requirement. Mahmood states that there were ten other
"exempt" employees who were treated better than him by Tzirides.
Pl. Stmt. of Add. Facts ¶¶ 29, 31; Pl. Mem. at 6. That is not
good enough. Mahmood must provide some evidence supporting his
claim that these persons were similarly situated in all relevant
respects. See, e.g., Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 330 (7th Cir. 2002); Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-18 (7th Cir. 2000). In this case, that likely would
involve evidence that the supposedly comparable employees had
performance ratings similar to his but nonetheless were not
terminated. Mahmood has offered no such evidence. Indeed, the
evidence he cites on this requirement includes an excerpt from
Tzirides' deposition in which she testified that she had, in
fact, terminated some of the other employees in question for
performance-related reasons. See Pl. Ex. 18, Tzirides Dep. at
2. Age discrimination claim Mahmood seeks to establish his age discrimination claim
pursuant to the indirect, burdenshifting method set out in
McDonnell Douglas. To make out a prima facie case of age
discrimination, Mahmood must provide evidence that he: (1) is at
least forty years old; (2) was performing up to his employer's
legitimate expectations; (3) suffered an adverse employment
action; and (4) similarly situated employees under the age of
forty were treated more favorably. Fairchild v. Forma
Scientific, Inc., 147 F.3d 567, 571-72 (7th Cir. 1998).
Only the fourth element is at issue. Mahmood has a "tough row
to hoe" because he was terminated by Tzirides, who was
sixty-three years old at the time, fourteen years older than
him. Fairchild, 147 F.3d at 572 (when the decision maker is
older than the terminated employee, it is not dispositive, but it
is a significant fact in evaluating the evidence of age
discrimination). Mahmood seeks to satisfy the fourth element by
showing that he was replaced by someone "significantly" younger.
Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676
(7th Cir. 2003). He states that Sarah Sheehan, a twenty-nine year
old, took over his responsibilities after he was fired. The City
responds by showing that Sheehan was not hired until July 2003,
over eight months after Mahmood was fired. Sheehan Aff. ¶ 1.
Tzirides took no part in the decision to hire Sheehan; she was
hired based on a recommendation in a personnel study of the CDPH
completed by Deloitte & Touche. Id. ¶ 3; Barrios Dep. at 49-50.