United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
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. As a staff pharmacist in the outpatient pharmacy, his 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.
A. The Complaints Against Cherif
Starting in October 2009, Cherif was charged with "inappropriate and disrespectful conduct toward a patient and a co-worker." 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" while questioning him about a medication dosage. 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 This proposed removal was rescinded and reissued on February 22, 2011 to include a more recent medication error.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 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. He contends that there are many reasons for such a delay. 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. He contends that the notice of proposed suspension he received in August 2011, concerning a series of medication errors he alleged made in March 2011 was not warranted. He contends that the allegation lacked substance. He disputes the accuracy of the facts justifying the proposed removal dated October 27, 2011, and he placed his refutation in writing. Essentially he contends that he was blamed for actions of the team member who complained about him (Thelma Washington). With regard to the 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. The parties participated in mediation with no resolution. 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.
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. Alleged Direct Proof of Discrimination
Cherif alleges that he was subjected to harassment and discrimination because he was a Muslim of African descent. 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 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 patient a specific medication. Was it the one with the scarf(rag) or the blond? It turned out that it was the blond. Cherif himself helped 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 ...