On June 27, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant employer in a Title VII lawsuit in which the plaintiff former employee alleged that he was discriminated against and terminated on account of his religion and in retaliation for filing an EEOC charge. Khowaja v. Jefferson B. Sessions III, Attorney General of the United States, No. 18-1155 (7th Cir. 6/27/2018). The plaintiff alleged that he was unlawfully discriminated against and removed from his position as an FBI agent because he is a Muslim, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), that he was subjected to a hostile work environment and disparate treatment, and that he was unlawfully terminated for beginning the EEOC process. On appeal, he only challenged the district court's ruling on his first claim of religious discrimination and disparate treatment.
Title VII prohibits federal employers from discriminating against federal employees on the basis of religion. The plaintiff contended on appeal that he established a prima facie case of religious discrimination and disparate treatment under the McDonnell Douglas framework. To do so he must establish that: (1) he is a member of a protected class; (2) his job performance met his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) another similarly situated employee who is not in his protected class was treated more favorably. If he can establish his prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for terminating his employment. Then the burden shifts back to the plaintiff to prove that the employer's proffered reason is pretext for discrimination. The plaintiff's prima facie case was "doomed" because the undisputed facts showed that his job performance did not meet the employer's legitimate expectations. However, the plaintiff argued that a similarly situated employee outside of his protected class was not terminated, despite an alleged similar performance issue. Similarly situated and pretext analysis often overlap, as comparator evidence and selective enforcement of an employer's rules are relevant to both inquiries. Similarly situated employees must be directly comparable to the plaintiff in all material respects, although this is "a flexible inquiry with no magic formula." There were significant distinctions between the plaintiff and his proposed comparator that undermined any valid comparison. A plaintiff must at least show that the comparators engaged in similar conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them. Since the plaintiff and his proposed comparator were not similarly situated, their comparisons did not demonstrate disparate treatment or pretext. The 7th Circuit concluded that the plaintiff presented no evidence that would lead a reasonable jury to find that he was terminated, or subjected to disparate treatment, because he is a Muslim. He offered no evidence of religious discrimination or animus by any supervisor.