Mohammed Mahran v. Advocate Christ Medical Center

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2911

MOHAMMED MAHRAN,

Plaintiff-Appellant,

v.

ADVOCATE CHRIST MEDICAL CENTER and

ADVOCATE HEALTH AND HOSPITALS CORPORATION,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 5730 — Sara L. Ellis, Judge.

____________________

ARGUED JUNE 3, 2020 — DECIDED SEPTEMBER 1, 2021

____________________

Before SYKES, Chief Judge, and BAUER and ST. EVE, Circuit

Judges.

SYKES, Chief Judge. Mohammed Mahran, an Egyptian

Muslim, sued Advocate Christ Medical Center, his former

employer, raising claims of employment discrimination

under Title VII of the Civil Rights Act of 1964 and the Illinois

Human Rights Act (“IHRA”). Mahran, a pharmacist, alleged

that Advocate failed to accommodate his need for prayer

2 No. 19-2911

breaks; disciplined and later fired him based on his race,

religion, and national origin; retaliated against him for

reporting racial and religious discrimination; and subjected

him to a hostile work environment based on his race, reli-

gion, and national origin. The district judge entered sum-

mary judgment for Advocate on all claims.

Mahran limits his appeal to two issues. First, he asks us

to revive his religious-accommodation claim, arguing that

the judge wrongly required him to show that Advocate’s

failure to accommodate his prayer breaks resulted in an

adverse employment action. Second, he argues that the

judge failed to consider the totality of the evidence in evalu-

ating his hostile-workplace claim.

Mahran’s first argument, which concerns the legal stand-

ard for a religious-accommodation claim, is new on appeal.

Indeed, he expressly agreed below that an adverse employ-

ment action is an element of a prima facie Title VII claim for

failure to accommodate an employee’s religious practice. He

cannot now take the opposite position here; arguments

raised for the first time on appeal are deemed waived. And

while the judge should have considered all the evidence

Mahran adduced in support of his hostile-workplace claim,

our own review of the record convinces us that there is not

enough evidence for a jury to find that Advocate subjected

him to a hostile work environment. We therefore affirm.

I. Background

Mahran is a native of Egypt and a practicing Muslim.

Two decades after completing his pharmaceutical education

in Egypt, he became a licensed pharmacist in Illinois. He

joined Advocate in November 2013, initially hired as a

No. 19-2911 3

“registry pharmacist” for a 90-day probationary period.1

Upon successful completion of his probationary employ-

ment, he was eligible for promotion to full-time pharmacist.

During Mahran’s 90-day probationary period, Advocate

hired Barbara Bukowski and Dearica Radic as full-time

pharmacists without requiring them to first work as registry

pharmacists. Mahran complained to Rolla Sweis, the Direc-

tor of Pharmacy, that Bukowski and Radic had received

preferential treatment because they weren’t Muslims. He did

not know, however, that Bukowski and Radic had prior

hospital experience and thus were not required to work as

registry pharmacists before being hired full time. Nonethe-

less, two days after Mahran complained to Sweis, Advocate

removed the probationary qualifier and elevated him to full-

time pharmacist.

Mahran’s supervisor, Judith Brown-Scott, initially gave

him “meets expectations” ratings in his performance re-

views. But his performance eventually deteriorated. He

received his first admonition (a Level 1 warning) for pro-

cessing a discontinued order for a patient and failing to

process the patient’s next order. When questioned about the

incident, Mahran did not take responsibility and instead

blamed a coworker.

Soon after the admonition, Vincent Dorsey, one of

Mahran’s coworkers, complained that Mahran left numerous

unfinished orders at the end of his shift for the next pharma-

cist to fill. When management investigated, Mahran re-

1 Though Mahran named both Advocate Christ Medical Center and

Advocate Health and Hospitals Corporation as defendants, the medical

center is only a division of the hospital corporation, not a distinct entity.

4 No. 19-2911

sponded that Dorsey was biased against Muslims and often

talked down to him and another Muslim coworker named

Mohammed Judeh. Neither Mahran nor Dorsey were disci-

plined.

Brown-Scott issued a final warning (a Level 3 warning)

after Mahran failed to verify a complicated order. He had

previously been warned about his habit of shirking work—

specifically, his pattern of selectively verifying only simple

orders and switching his schedule to avoid working busy

shifts. Along with the warning, Brown-Scott issued a formal

performance deficiency notice describing Mahran’s perfor-

mance problems, prescribing a corrective-action plan, and

warning him that failure to comply with the plan could

result in termination of his employment. Around this time

Brown-Scott also reduced Mahran’s performance rating to

“approaching expectations.” Mahran complained to human

resources that he was being disciplined in retaliation for

reporting racial and religious discrimination. The human-

resources department then withdrew the Level 3 warning

but left the reduced performance rating, performance-

deficiency notice, and corrective-action plan in place.

A month later, Advocate gave Mahran another Level 3

final warning after he improperly left the pharmacy before

his replacement arrived and did not hand off the work to

her. Again, Mahran complained that this discipline was

discriminatory. Before an arbitration panel could be con-

vened to resolve Mahran’s complaint, Advocate terminated

his employment for failure to comply with the corrective-

action plan.

Mahran filed charges of discrimination and retaliation on

the basis of race, religion, and national origin with the

No. 19-2911 5

Illinois Department of Human Rights and the Equal

Employment Opportunity Commission. After the charges

were dismissed, Mahran filed this discrimination suit

against Advocate. As relevant here, he raised claims of

racial, religious, and national-origin discrimination in viola-

tion of Title VII, 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981; and

the IHRA, 775 ILL. COMP. STAT. 5/2-102. 2

Mahran’s allegations can be grouped into three general

baskets. He claimed that Advocate (1) discriminated and

retaliated against him by giving him negative performance

evaluations, imposing discipline, and terminating his em-

ployment; (2) subjected him to a hostile work environment;

and (3) failed to accommodate his religious practice.

More particularly, Mahran alleged that Advocate dis-

criminated against him by hiring Bukowski and Radic as

full-time pharmacists while he, in contrast, was hired as a

probationary registry pharmacist. He also claimed that they

earned more than the $50-per-hour starting salary he earned

as a full-time pharmacist. That allegation was factually

unsupported. Bukowski and Radic both started at $50 per

hour. Mahran additionally asserted that Advocate deprived

him of training opportunities. When he requested two weeks

of training in the intensive care unit, Advocate gave him

only three hours of ICU training, ostensibly because he was

not an ICU pharmacist and did not need the specialized

2 Mahran also pleaded claims for denial of overtime pay in violation the

Fair Labor Standards Act, 29 U.S.C. § 207(a), and retaliatory discharge in

violation of Illinois common law. The district judge entered summary

judgment for Advocate on these claims, and Mahran does not challenge

that decision.

6 No. 19-2911

training. He also alleged that the trainers in the ICU didn’t

answer his questions and that one of them shouted at him.

As further evidence to support his claim of religious bias,

Mahran contended that he was denied vacation time on a

discriminatory basis. Though he received time off for two

Islamic holidays in 2015, he was denied vacation time for Eid

al-Fitr in 2016. Advocate explained that four pharmacists

had already reserved vacation time for that date—the maxi-

mum number that could be on vacation at the same time.

Mahran rejected this explanation, noting that his coworker

Katie Khouri was permitted to take 18 days off even though

four pharmacists had reserved days off during the same

period. But Khouri had switched shifts with other pharma-

cists on some of those days to avoid understaffing, and

Sweis approved the other days because Khouri was getting

married, which Sweis considered worthy of a special excep-

tion.

Mahran’s hostile-environment claim centered on allega-

tions about offensive comments related to his race and

national origin. Mahran claimed that Sweis once referred to

his native country when she corrected the way he prioritized

orders. She said: “This is how you do it in Egypt. Here it’s

completely different.” Mahran complained to a human-

resources employee that Sweis was a racist. The employee

simply replied, “[N]o, Rolla is good; she’s fine; we trust our

managers.” Mahran also asserted that Judeh overheard

another pharmacist say that he would not “go to [a] mar-

riage of brown people.” When he complained to Brown-

Scott, she brushed it off by saying, “there is no racial dis-

crimination here; you see I am African-American.”

No. 19-2911 7

Mahran’s religious-accommodation claim rested on his

contention that Advocate denied prayer breaks to Muslims.

During each shift, pharmacists were entitled to take two

15-minute breaks and one 30-minute meal break, but they

had to stagger their breaks to ensure adequate coverage in

the pharmacy. Muslim pharmacists used these breaks to say

daily prayers. Mahran alleged that over time, Sweis became

concerned that the prayer breaks were negatively impacting

patient care and prohibited Muslims from praying during

the two 15-minute breaks. He claimed that the clinical

manager of the pharmacy department told another Muslim

pharmacist to “pass the message” to all Muslim pharmacists

that they were no longer permitted to use their breaks for

prayers. Mahran also asserted that the evening supervisor

once prevented him from taking a prayer break and told him

he couldn’t take prayer breaks anymore.

Advocate moved for summary judgment on all claims,

and the judge granted the motion in two separate orders.

Mahran challenges only two aspects of the judge’s analysis,

so we limit our discussion accordingly. First, in rejecting his

hostile-workplace claim, the judge considered only his

allegations of offensive comments, concluding that the

comments, as Mahran described them, were neither severe

nor pervasive. That was enough to defeat the claim.

Second, the judge ruled in Advocate’s favor on the

religious-accommodation claim. The parties had agreed in

their summary-judgment briefing that to establish a prima

facie case, Mahran needed to show that (1) his religious

practice conflicted with an employment requirement; (2) he

brought the need for a religious accommodation to his

employer’s attention; and (3) the unaccommodated religious

8 No. 19-2911

practice was the basis of an adverse employment decision.

EEOC v. United Parcel Serv. (“UPS”), 94 F.3d 314, 317 (7th

Cir. 1996). 3 The judge adopted this statement of law and

expressly noted that the parties agreed on the legal standard.

Then, applying the agreed-upon legal framework, the judge

ruled that Advocate was entitled to summary judgment

because Mahran presented no evidence that he suffered an

adverse employment action based on his prayer breaks.

II. Discussion

We review a summary judgment de novo, construing the

record in the light most favorable to the nonmoving party

and drawing all reasonable inferences in his favor. James v.

Hale, 959 F.3d 307, 314 (7th Cir. 2020). Although Mahran was

represented by counsel in the district court, he filed his

notice of appeal pro se. When we asked him to clarify if he

intended to proceed without counsel, he asked us to appoint

an attorney to represent him on appeal. We denied the

motion because Mahran does not satisfy the requirements to

proceed in forma pauperis. But we appointed a pro bono

lawyer as amicus curiae to argue for reversal. Mahran

accepted the arguments advanced by the amicus and did not

file his own briefs. 4

3 Our articulation of the elements of a prima facie case in UPS uses the

phrase “adverse employment decision.” EEOC v. United Parcel Serv.

(“UPS”), 94 F.3d 314, 317 (7th Cir. 1996). In his district-court brief,

Mahran misquoted this passage from UPS, using the phrase “adverse

employment action.” The judge adopted the mistaken quotation in her

decision.

4The court thanks amicus curiae Randall D. Schmidt and the Edwin F.

Mandel Legal Aid Clinic of the University of Chicago Law School.

No. 19-2911 9

Mahran’s amicus challenges only two aspects of the

judgment below. First, he argues that the religious-

accommodation claim should be reinstated because an

employer’s failure to accommodate an employee’s religious

practice is itself actionable, regardless of whether an adverse

employment action resulted. Second, he asks us to reinstate

the hostile-workplace claim because the judge considered

only the alleged offensive comments instead of evaluating

the totality of the evidence Mahran adduced.

A. Religious-Accommodation Claim

Relying on our decision in UPS, 94 F.3d at 317, the parties

agreed in the district court that Mahran needed to show that

his unaccommodated religious practice was the basis of an

adverse employment action in order to establish a prima

facie case on his religious-accommodation claim under

Title VII. The judge entered summary judgment for

Advocate on this claim because no evidence shows that

Mahran’s prayer breaks resulted in an adverse employment

action against him. Mahran’s amicus now reverses course,

arguing that an employer’s failure to accommodate an

employee’s religious practice is itself actionable even if it

does not lead to an adverse employment action, such as

discipline or termination. The amicus contends that this is

the best reconciliation of our precedents, and if it is not, then

UPS should be overruled.

This argument was not raised in the district court and is

therefore waived. “[A] party opposing a summary judgment

motion must inform the trial judge of the reasons, legal or

factual, why summary judgment should not be entered.”

United States v. Ritz, 721 F.3d 825, 827 (7th Cir. 2013) (quota-

tion marks omitted). Arguments raised for the first time on

10 No. 19-2911

appeal are deemed waived. Id. As the district judge herself

noted, Mahran expressly agreed that to establish a prima

facie case on his religious-accommodation claim, he must

show that he suffered an adverse employment action as a

result of his unaccommodated religious practice. He cannot

win reversal by adopting the opposite position now.

In his reply brief, amicus suggests that circuit precedent

so clearly required proof of an adverse employment action

that any argument to the contrary would have been futile in

the district court. We have on rare occasions reviewed a pure

issue of law raised for the first time on appeal if raising the

issue in the district court would have been futile. See, e.g.,

Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 351 (7th

Cir. 2017) (en banc).

We decline to take that unusual step here. It would not

have been futile for Mahran to challenge the way in which

our decision in UPS articulated the elements of a religious-

accommodation claim under Title VII. Other plaintiffs and

judges had done so before him. See, e.g., Nichols v. Ill. Dep’t of

Transp., 152 F. Supp. 3d 1106, 1121–22 (N.D. Ill. 2016). In-

deed, the judge took note of the Nichols case when she

accepted the parties’ agreed-upon statement of the legal

framework as articulated in UPS.

It would be especially improper for us to accept this stark

turnabout in light of the Supreme Court’s recent decision in

United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). There

the Ninth Circuit identified a new legal issue not raised by

the parties and sua sponte appointed three amici to address

it. Id. at 1578. The court eventually sided with the amici, but

the Supreme Court vacated the decision, explaining that by

sua sponte recasting the issue on appeal and appointing

No. 19-2911 11

amici to advance the new argument, “the appeals panel

departed so drastically from the principle of party presenta-

tion as to constitute an abuse of discretion.” Id.

To be sure, this case doesn’t present the kind of egregious

judicial transformation that occurred in Sineneng-Smith,

where the Ninth Circuit injected a legal theory of its own

making into the case and then appointed counsel to argue it.

Here the about-face originated with the amicus, not the

court. But Sineneng-Smith clearly counsels against addressing

an issue of law presented by a nonparty for the first time on

appeal. It would be improper to relieve Mahran of his

waiver here.

B. Hostile-Workplace Claim

Mahran’s amicus also contends that the judge ignored

relevant evidence in her evaluation of the hostile-workplace

claim. The judge explained that Mahran proffered two types

of evidence in support of this claim: allegedly offensive

comments and disparate treatment. She decided that it was

more appropriate to consider Mahran’s disparate-treatment

evidence separately, not in relation to his hostile-

environment claim. Considering only Mahran’s allegations

about offensive comments, she concluded that no reasonable

jury could find that Advocate subjected him to a hostile

work environment.

Separating the evidence into one analytical category or

another is understandable but mistaken under recent circuit

precedent. As explained in Ortiz v. Werner Enters., Inc.,

834 F.3d 760, 765 (7th Cir. 2016), it’s best to resist the tempta-

tion to rigidly compartmentalize the evidence in discrimina-

tion cases into different analytical boxes; rather, “all

12 No. 19-2911

evidence belongs in a single pile and must be evaluated as a

whole.” Id. at 766.

Although Mahran’s evidence should have been consid-

ered more holistically, we’re confident that summary judg-

ment for Advocate was proper. Our review is de novo, and

on this record—construed in its entirety and in Mahran’s

favor—no reasonable jury could find that Advocate subject-

ed him to a hostile work environment on the basis of his

religion, race, or national origin.

Mahran brought this claim under three statutes—

Title VII, 42 U.S.C. § 1981, and the IHRA—but the legal

standard is the same under all three. To prevail, a plaintiff

must show that “(1) the work environment was both objec-

tively and subjectively offensive; (2) the harassment was

based on membership in a protected class or in retaliation

for protected behavior; (3) the conduct was severe or perva-

sive; and (4) there is a basis for employer liability.” 5 Abrego v.

Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018) (quotation marks

omitted). Whether harassment qualifies as severe or perva-

sive depends on contextual factors such as “the frequency of

improper conduct, its severity, whether it is physically

threatening or humiliating (as opposed to a mere offensive

utterance), and whether it unreasonably interferes with the

employee’s work performance.” Id. (quotation marks omit-

ted).

5 This test from the Title VII framework is equally applicable to § 1981

and IHRA claims. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383

(7th Cir. 2016) (noting that the same framework applies to Title VII and

IHRA claims); Lane v. Riverview Hosp., 835 F.3d 691, 695 (7th Cir. 2016)

(noting that the same framework applies to Title VII and § 1981 claims).

No. 19-2911 13

Mahran has not made the required showing. The conduct

he complains of either lacks factual support or does not

remotely qualify as objectively offensive harassment based

on a protected trait. Even if some of his evidence fits the bill,

the harassment was not so severe or pervasive that it altered

the conditions of his employment.

Mahran complains that Advocate created a hostile work

environment by denying him specialized ICU training,

paying him less than other pharmacists, rejecting his request

for vacation time, hiring non-Muslims as full-time pharma-

cists before him, and disciplining and later firing him. But he

has not shown that any of these incidents amounted to

objectively offensive harassment based on his race, religion,

or national origin. He was denied ICU training not because

of his race or religion but because he was not hired to be an

ICU pharmacist. There is no evidence that similarly situated

pharmacists were paid more than him.

Regarding time off, the record reflects that Mahran was

denied vacation time for the 2016 Eid al-Fitr holiday because

too many other pharmacists had already requested and been

granted the same days off; indeed, the coworkers who

received the vacation days were other Muslims. Mahran

points to his coworker Khouri as a similarly situated em-

ployee whose vacation requests were granted more often.

But the record shows that some of her days off actually

involved shift trades with other pharmacists, which ensured

full coverage in the pharmacy; others were granted because

she was getting married, which Advocate treated as an

extenuating circumstance. Whatever the wisdom or fairness

of that decision, it’s not evidence of racial or religious dis-

crimination.

14 No. 19-2911

As for Bukowski and Radic, Advocate hired them as full-

time pharmacists without a probationary period because

they had prior hospital experience. And finally, Mahran has

no evidence that Advocate disciplined and ultimately fired

him for any reason other than that he was not meeting

legitimate work expectations. In sum, Mahran has not

shown that any of these incidents—independently or in

combination—contributed to an environment of severe or

pervasive racial or religious harassment.

That leaves the allegedly offensive comments. According

to Mahran’s version of events, Brown-Scott responded to his

complaints about racism by referring to her own race; she is

black. An employee in human resources assured him that

Sweis was not a racist and that she trusted her. Sweis once

remarked that pharmacists in Egypt might prioritize orders

in a certain way, but it was different in the United States.

None of these remarks is objectively offensive; no reasonable

person could find any of them hostile or abusive. Faragher v.

City of Boca Raton, 524 U.S. 775, 787 (1998).

Mahran also claimed that his coworker Judeh overheard

another pharmacist say that he would not “go to [a] mar-

riage of brown people.” This comment appears only in

Mahran’s deposition, and the judge correctly excluded it as

inadmissible hearsay. See FED. R. EVID. 801(c); see also

Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). The

same analysis applies to Mahran’s allegation that another

Muslim pharmacist told him that the clinical manager asked

him to pass on the message that Muslim pharmacists were

not permitted to take prayer breaks. Setting aside the hear-

say problem, nothing in the record suggests that this alleged

“message” was actually carried out in fact. Regardless, these

No. 19-2911 15

isolated, offhand comments—not directed at Mahran him-

self—do not amount to an objectively hostile work environ-

ment. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271–72

(7th Cir. 2004).

For these reasons, summary judgment for Advocate was

clearly appropriate.

AFFIRMED