Ahmad Jajeh v. County of Cook

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2331
AHMAD JAJEH,
Plaintiff-Appellant,
v.
COUNTY OF COOK,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09-cv-7227—John W. Darrah, Judge.
ARGUED JANUARY 19, 2012—DECIDED MAY 2, 2012
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Dr. Ahmad Jajeh was an attending
physician in the Hematology/Oncology Department at
John H. Stroger, Jr. Hospital of Cook County, until exten-
sive budget cuts forced the County to lay off over
200 physicians, including Dr. Jajeh. Following his ter-
mination, Dr. Jajeh brought suit in district court claiming
he was subjected to discrimination on the basis of his
religion and national origin, and terminated in retalia-

-- 1 of 25 --

2 No. 11-2331
tion for his complaints about the discrimination he suf-
fered. The district court granted summary judgment in
favor of Cook County, finding no evidence that Dr. Jajeh
suffered discrimination or that he was laid off in re-
taliation for his complaints. We affirm.
I. BACKGROUND
Dr. Jajeh, a Muslim born in Syria, worked at Stroger
Hospital for sixteen years, beginning in 1991. By all
accounts, he performed his duties satisfactorily for most
of this time and was employed without incident until
about 2003. That year, Dr. Jajeh began having problems
with Dr. Roslyn Catchatourian, another hematologist
in the department who had previously been in private
practice. Most of the problems with Dr. Catchatourian
concerned the type of disputes one might expect to
find in a hospital, such as arguments over the proper
assignment of interns, heavy workloads, and improper
schedule assignments. But Dr. Catchatourian also
made some derogatory comments about Dr. Jajeh
because he was a Muslim from Syria. And as time went
on, the conflict between the two doctors escalated.
Dr. Jajeh soon began making formal complaints
about Dr. Catchatourian to Dr. Thomas Lad, Chairman
of the Oncology Department. In a letter written to
Dr. Lad on September 23, 2004, Dr. Jajeh noted that he
had already made three previous complaints regarding
Dr. Catchatourian’s conduct. The letter then describes
the causes of “friction that exist[] between [Dr. Jajeh] and
Dr. Catchatourian,” including Dr. Catchatourian’s “domi-
neering attitude,” her “creating a private practice like

-- 2 of 25 --

No. 11-2331 3
atmosphere” in the clinic, and “overflowing her clinic
with patients.” Notably absent from this letter is any
complaint that Dr. Catchatourian made a derogatory
comment about Dr. Jajeh’s religion or national origin.
Dr. Jajeh wrote a second letter to Dr. Lad on October 26,
2004, stating that he had been “discriminated against
in your department [by Dr. Catchatourian].” But after
making this claim, the letter does not allege any discrimi-
nation related to religion or national origin. Instead, it
details similar concerns as the previous letter, stating
that Dr. Catchatourian “disrespect[ed]” Dr. Jajeh’s
clinical decisions, “creat[ed] an atmosphere of confusion
and chaos,” and “creat[ed] schedules that fit her own
comfort and advantage.” Although Dr. Lad attempted
to mediate the conflict between the two doctors, the
hostility between them persisted.
Soon, Dr. Lad grew weary of listening to Dr. Jajeh’s
frequent complaints. And Dr. Jajeh, for his part, felt that
Dr. Lad was complicit in allowing Dr. Catchatourian’s
domineering ways to continue. As a result, Dr. Jajeh
started having problems with Dr. Lad, and began com-
plaining about him as well. For example, Dr. Jajeh wrote
a third letter to Dr. Lad on December 22, 2005, vaguely
protesting a lack of workplace safety. The letter then
states that Dr. Lad’s conduct was a “form of favoritism,
harassment and feeling of grandiosity.”
Two other incidents with Dr. Lad would prove to
be important. In 2006, Dr. Lad instituted an administra-
tive hearing against Dr. Jajeh for an alleged altercation
with a patient, and for leaving work early to attend a

-- 3 of 25 --

4 No. 11-2331
pharmaceutical meeting while he had patients waiting
for him. An independent hearing officer, Paris Partee,
concluded that Dr. Jajeh violated hospital policy, and
subsequently referred him to anger management. Later
that same year, Dr. Lad delayed the submission of
Dr. Jajeh’s credential-renewal application, pending
Partee’s official report from the administrative hearing.
In a letter to Dr. Brendan Reilly, Chairman of the Depart-
ment of Medicine, Dr. Lad stated that he believed
this delay had caused Dr. Jajeh’s credentials to be sus-
pended. Dr. Lad considered using the suspension as
an excuse to terminate Dr. Jajeh, stating that “this was
an opportunity to solve a problem that has been going
on ever since [Dr. Lad arrived at the hospital].” But
Dr. Lad instead decided that Dr. Jajeh should be
reinstated because he was “likely to get a lawyer.”
Dr. Jajeh wrote a final letter complaining about his
work environment on December 27, 2005—this time to
Dr. Janice Benson, President of the Medical Staff at
Stroger Hospital. In the letter, he complained of “frank
discrimination” by both Drs. Lad and Catchatourian. But,
just as in his previous letters, Dr. Jajeh’s complaints only
refer to personality issues with Dr. Catchatourian that
“preclude [Dr. Jajeh] from having a safe working place.”
The letter makes no mention of religion or national
origin, or of any slurs or derogatory comments made
by Dr. Catchatourian. Dr. Jajeh eventually filed a charge
of discrimination with the Equal Employment Oppor-
tunity Commission (EEOC) on October 30, 2006, alleging
for the first time retaliation and discrimination on the
basis of his religion and national origin.

-- 4 of 25 --

No. 11-2331 5
In 2007, facing an overall budget shortfall of $500
million, Cook County directed that $130 million be cut
from the Bureau of Health budget. As a result of the
cutbacks, 650 Bureau of Health employees were laid off.
Of those laid-off employees, 200 were physicians from
Cook County hospitals, including Stroger Hospital—and
Dr. Jajeh.
Dr. Robert R. Simon, Interim Chief of the Bureau of
Health for Cook County, determined the level of cuts
necessary at each institution and established criteria for
evaluating individual physicians. Rather than relying
on seniority, physician evaluations were based on:
(1) negative performance reviews; (2) excess medical
malpractice settlements; and (3) productivity in clinics,
wards, and operating rooms. Personnel in departments
facing cuts were interviewed by three other physicians
of mixed race, sex, and national background.
Although there were efforts to resist any cuts to the
Hematology/Oncology Department, it was eventually
selected for a reduction in force. At the time, three hema-
tologists were employed: Dr. Catchatourian, Dr. Jajeh,
and Dr. Margaret Telfer. Dr. Telfer was a part-time em-
ployee, while the other two doctors worked full-time.
Three physicians conducted their interviews: Dr. Reilly,
Dr. Enrique Martinez, and Dr. Krishna Das. The three
evaluated hematologists completed identical question-
naires and were interviewed separately by Drs. Reilly,
Martinez, and Das.
After the interviews, Dr. Reilly prepared a score sheet.
Dr. Catchatourian scored 1,640 points, receiving addi-
tional points because she was a specialist in bone-marrow

-- 5 of 25 --

6 No. 11-2331
Dr. Jajeh does not appeal the district court’s grant of sum- 1
mary judgment in favor of Cook County for his discrimina-
(continued...)
transplants and because she held a key faculty posi-
tion. Dr. Telfer scored 1,400 points, receiving additional
points because she was director of a fellowship pro-
gram. Dr. Jajeh scored the lowest with 984 points, and had
points deducted for a negative performance review—the
administrative hearing that Dr. Lad initiated in 2006.
Having scored the lowest, Dr. Jajeh’s position was elimi-
nated from the 2007 budget and he was laid off. Sub-
sequently, Dr. Telfer became a full-time employee.
Dr. Jajeh brought suit against Cook County under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., alleging retaliation and discrimination based on
religion and national origin. The district court granted
summary judgment in favor of Cook County on
all counts, finding no evidence that Dr. Jajeh was elimi-
nated from his position based on any discriminatory or
retaliatory animus. Rather, he was selected for termina-
tion based on objective criteria used in county-wide
budget cuts. The district court also found that Dr. Jajeh’s
discrimination claim encompassed a hostile-work-envi-
ronment claim, but held that there was no evidence
suggesting any alleged harassment occurred on the basis
of his religion or national origin. Dr. Jajeh filed this
timely appeal, challenging the district court’s grant of
summary judgment for his hostile-work-environment
and retaliation claims.1

-- 6 of 25 --

No. 11-2331 7
(...continued) 1
tion claim alleging he was terminated from his position
because of his religion and national origin.
II. ANALYSIS
We review the grant of summary judgment de novo,
construing all facts and drawing all reasonable inferences
in favor of the nonmoving party. Moore v. Vital Prods., Inc.,
641 F.3d 253, 256 (7th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
A. Hostile Work Environment
Dr. Jajeh first argues that the district court erred in
granting summary judgment in favor of Cook County
for his hostile-work-environment claim because he was
subject to severe harassment by Dr. Catchatourian.
To survive a summary judgment motion on this claim,
Dr. Jajeh must demonstrate: “(1) that [his] work environ-
ment was both objectively and subjectively offensive;
(2) that the harassment was based on [his religion or
national origin]; (3) that the conduct was either severe
or pervasive; and (4) that there is a basis for employer
liability.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th
Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3301 (U.S.
Oct. 31, 2011) (No. 11-556).
As a preliminary matter, Cook County asserts that
Dr. Jajeh’s hostile-work-environment claim was not

-- 7 of 25 --

8 No. 11-2331
properly raised in his complaint. Dr. Jajeh’s complaint
alleges discrimination based on religion and national
origin, but does not explicitly state that he was subjected
to a hostile work environment. Because Dr. Jajeh did not
specifically mention the words “hostile work environ-
ment” until his response to Cook County’s motion
for summary judgment, Cook County concludes, we
should not consider the issue. We disagree.
Title VII makes it “an unlawful employment practice
for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). This statutory language covers
both discrete acts of discrimination (such as termination)
and acts that create a hostile workplace. Turner v. Saloon,
Ltd., 595 F.3d 679, 683 (7th Cir. 2010) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)).
Under the notice-pleading standard of the Federal Rules
of Civil Procedure, a complaint must provide only “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“In other words, the plaintiff’s complaint must be
sufficient to provide the defendant with ‘fair notice’ of
the plaintiff’s claim and its basis.” Indep. Trust Corp. v.
Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir.
2012) (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
The hostile-work-environment claim was properly
raised in the complaint. Although the complaint does
not use the words “hostile work environment,” it repeat-

-- 8 of 25 --

No. 11-2331 9
Dr. Jajeh’s declaration alleges that Dr. Catchatourian stated 2
that he “needed to believe in Christ and that if [he] did not, [he]
(continued...)
edly alleges that Dr. Jajeh was subject to severe harass-
ment because of his religion and national origin in viola-
tion of Title VII. The complaint also details how the
harassment altered the conditions of Dr. Jajeh’s employ-
ment, as well as Cook County’s failure to take remedial
action in response to the alleged harassment. Cook
County had fair notice of the hostile-work-environment
claim; Dr. Jajeh was “not required to plead with preci-
sion legal theories or detailed facts.” Benuzzi v. Bd. of
Educ. of Chicago, 647 F.3d 652, 664 (7th Cir. 2011). And
the district court also believed the issue was properly
raised, otherwise it would not have reached the merits
of the claim. Cf. Shanahan v. City of Chicago, 82 F.3d 776,
781 (7th Cir. 1996) (district court properly denied plain-
tiff’s attempt to amend complaint in his response to de-
fendant’s motion for summary judgment).
Turning to the merits of the claim, the district court
found no evidence that the harassment Dr. Jajeh
suffered was due to his religion or national origin.
Rather, the evidence in the record demonstrated
only that Dr. Jajeh had a personality conflict with Dr.
Catchatourian. Key to this determination was the district
court’s exclusion of a declaration submitted by Dr. Jajeh
as Exhibit 1 with his response to Cook County’s motion
for summary judgment. In this declaration, Dr. Jajeh
described Dr. Catchatourian’s derogatory comments that
lie at the heart of his hostile-work-environment claim.2

-- 9 of 25 --

10 No. 11-2331
(...continued) 2
would not go to Heaven;” told him that the countries of the
Middle East needed to be eliminated because “they were all
terrorists;” and insisted that staff members engage in prayer
with her.
Section 1746 provides that “[w]herever, under any law of the 3
United States or under any rule, regulation, order, or require-
ment made pursuant to law, any matter is required or permitted
to be supported, evidenced, established, or proved by the
sworn declaration . . . in writing of the person making the
same . . . such matter may, with like force and effect, be sup-
ported, evidenced, established, or proved by the unsworn
declaration” of such person if made “under penalty of perjury”
and verified as “true and correct.”
The court excluded the declaration because it was un-
sworn, and not subscribed “under penalty of perjury,”
as required by 28 U.S.C. § 1746.3
Dr. Jajeh argues that the district court erred by not
considering the declaration because, in doing so, the
court relied on our precedent holding that an unsworn
declaration does not comply with (now former) Federal
Rule of Civil Procedure 56(e). E.g., DeBruyne v. Equitable
Life Assurance Soc’y, 920 F.2d 457, 471 (7th Cir. 1990)
(unsworn affidavit not subscribed under penalty of
perjury was not within range of evidence that district
court could consider); Gilty v. Vill. of Oak Park, 919
F.2d 1247, 1255 n.13 (7th Cir. 1990) (unsworn affidavits
not subscribed under penalty of perjury did not comply
with Rule 56(e)). In 2010, Rule 56 was reorganized and
altered. “Subdivision (c)(4) carries forward some of the

-- 10 of 25 --

No. 11-2331 11
In Phillis v. Harrisburg School District, the Third Circuit briefly 4
addressed whether an unsworn declaration that does not
comply with § 1746 may be considered by a district court, albeit
in an unpublished opinion and without analysis. 430 F. App’x
118 (3d Cir. 2011). Although citing to Rule 56(c), the court
relied on precedent applying former Rule 56(e) to hold that
the district court was free to disregard such a declaration. Id.
at 122. But see Comite de Jornaleros de Redondo Beach v. City of
Redondo Beach, 657 F.3d 936, 964 n.7 (9th Cir. 2011) (Kozinski,
C.J., dissenting) (“Rule 56 is precisely worded to exclude
evidence only if it’s clear that it cannot be presented in an
admissible form at trial.”). District courts addressing the
issue have continued to require that unsworn declarations
(continued...)
provisions of former subdivision (e)(1). Other provi-
sions are relocated or omitted.” Fed. R. Civ. P. 56,
advisory committee’s note (2010 amends.). Rule 56(c)(4)
no longer requires a formal affidavit to be submitted,
but instead allows a declaration to be used to oppose a
motion for summary judgment, so long as it is “made
on personal knowledge, set[s] out facts that would be
admissible in evidence, and show[s] that the affiant or
declarant is competent to testify on the matters
stated.” Dr. Jajeh contends that his unsworn declaration
complies with subdivision (c)(4), even if it would not
have complied with former Rule 56(e) and does not
comply with 28 U.S.C. § 1746.
Although we have not had occasion to address this
issue, we need not decide whether Dr. Jajeh’s declara-
tion complies with Rule 56(c)(4); “we may affirm on4

-- 11 of 25 --

12 No. 11-2331
(...continued) 4
comply with § 1746 in order to be used to support or oppose
a motion for summary judgment. See, e.g., Cunningham v.
Windriver Mgmt. Grp., No. 3:10-cv-00358, 2011 WL 4449657,
at *5 (M.D. Tenn. Sept. 26, 2011); Monahan v. NRA Grp., No. 3:10-
CV-00638, 2011 WL 3901877, at *2 n.5 (D. Conn. Sept. 6, 2011).
any ground supported in the record.” Bd. of Regents of
Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d
448, 456 (7th Cir. 2011). Even assuming that the declara-
tion was properly before the district court, the grant
of summary judgment was nevertheless correct be-
cause there is no basis for employer liability.
Whether there is a basis for employer liability
depends on whether the alleged harassment was per-
petrated by a supervisor or a coworker. Vance, 646 F.3d
at 469. An employer may be strictly liable for harass-
ment by supervisors, but a negligence standard applies
for harassment by coworkers. Erickson v. Wis. Dep’t of
Corr., 469 F.3d 600, 604 (7th Cir. 2006). “ ‘[S]upervisor’ is
a term of art that denotes more than an individual with
a higher rank, a superior title, or some oversight du-
ties.” Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390
(7th Cir. 2010). Rather, a “supervisor” for purposes of
Title VII must have “the power to directly affect the
terms and conditions of the plaintiff’s employment.”
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848
(7th Cir. 2008). Thus, a supervisor will generally have “the
authority to hire, fire, promote, demote, discipline or
transfer” a plaintiff. Rhodes v. Ill. Dep’t of Transp., 359
F.3d 498, 506 (7th Cir. 2004).

-- 12 of 25 --

No. 11-2331 13
Dr. Jajeh attempts to characterize Dr. Catchatourian as
a supervisor, noting that she had the authority to
assign interns, residents, and fellows to herself and
other physicians in the department. But this power only
demonstrates that Dr. Catchatourian may have been a
supervisor of the interns, residents, and fellows—not
that she was Dr. Jajeh’s supervisor. Dr. Catchatourian
did not have the authority to hire, fire, promote,
demote, discipline, or transfer Dr. Jajeh—even if she
had that same authority with respect to others. More-
over, Dr. Jajeh even tacitly acknowledged that
Dr. Catchatourian was not his supervisor, stating that
they were “on the same level; we share the same respon-
sibility.” (Jajeh Dep. at 89.) Thus, Dr. Catchatourian and
Dr. Jajeh were coworkers.
Because Dr. Catchatourian was a coworker, Dr. Jajeh
must set forth sufficient facts to establish that Cook
County was negligent in either discovering or remedying
the harassment. Vance, 646 F.3d at 470. “Generally,
we do not consider an employer to be apprised of the
harassment unless the employee makes a concerted
effort to inform the employer that a problem exists.”
Rhodes, 359 F.3d at 506 (internal quotation marks omit-
ted). Once an employer is aware of workplace harass-
ment, it can avoid liability by taking “prompt and appro-
priate corrective action reasonably likely to prevent
the harassment from recurring.” Vance, 646 F.3d at 471.
Dr. Jajeh makes no claim that Cook County had con-
structive notice of the alleged harassment; therefore, the
relevant inquiry is whether Dr. Jajeh’s complaints gave

-- 13 of 25 --

14 No. 11-2331
Cook County enough information “to make a reasonable
employer think there was some probability” that he was
being harassed on the basis of his religion or national
origin. Yancick v. Hanna Steel Corp., 653 F.3d 532, 550
(7th Cir. 2011) (citation omitted). Although Dr. Jajeh’s
letters to Drs. Lad and Benson state that he was being
discriminated against by Dr. Catchatourian, the letters
in their entirety only vaguely complain about the per-
sonality issues he had with her. “Title VII does not
prohibit all verbal or physical harassment in the work-
place,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998); it is directed only at “discriminat[ion] . . .
because of . . . religion . . . or national origin,” 42 U.S.C.
§ 2000e-2(a)(1).
Should Dr. Lad or any other supervisor have con-
cluded that Dr. Catchatourian was “overflowing her
clinic with patients” or “creating an atmosphere of con-
fusion and chaos” because she harbored a forbidden
animus? We think not; Dr. Jajeh’s letters do not even
hint that the cause of his complaints is related to his
religion or national origin. A reasonable employer, there-
fore, would not believe there was any probability that
Dr. Jajeh was being harassed on this basis. See Yancick,
653 F.3d at 550 (“[V]ague complaints unrelated to
racial hostility are insufficient to establish employer
liability.”); Montgomery, 626 F.3d at 391-92 (complaints
of general unfairness do not provide notice of racial
harassment).
It is only upon filing a charge of discrimination with
the EEOC on October 30, 2006, that Dr. Jajeh alleged

-- 14 of 25 --

No. 11-2331 15
discrimination on the basis of religion and national
origin. After this date, Cook County was apprised of the
harassment. But there is also no evidence in the record
that any alleged harassment continued after this date.
Thus, the district court’s grant of summary judg-
ment was proper because there is no basis for employer
liability.
B. Retaliation
Dr. Jajeh also claims the district court erred in granting
summary judgment for his retaliation claim. A plaintiff
may proceed under the direct or indirect method to
prove a claim of retaliation in violation of Title VII.
Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012).
Dr. Jajeh opts for both methods, so we will discuss
each in turn.
1. Direct Method
To satisfy the direct method of proof, Dr. Jajeh must
show: (1) he engaged in statutorily protected expression;
(2) he suffered an adverse action at the hands of Cook
County; and (3) there was a causal link between the
two. Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 441
(7th Cir. 2010). The first two elements are uncon-
tested—Dr. Jajeh’s EEOC complaint is a statutorily pro-
tected expression, and he suffered an adverse action

-- 15 of 25 --

16 No. 11-2331
Dr. Jajeh contends that the adverse actions he suffered prior to 5
his EEOC complaint should also be taken into account, such as
“being humiliated and isolated by not having residents and
fellows assigned to him,” “being accused of job abandonment,”
and “having sick days wrongfully assessed against him.”
(Appellant’s Br. at 34.) He claims to have suffered these
actions in retaliation for his internal complaints to Dr. Lad.
But as we already discussed, Dr. Jajeh’s earlier letters only
vaguely complain about his work environment. And because
they are only vague complaints unrelated to his religion or
national origin, the earlier complaints are not statutorily
protected. See Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park, 490
F.3d 558, 563 (7th Cir. 2007) (“Merely complaining in gen-
eral terms of harassment, without indicating a connection to
a protected class or providing facts sufficient to create that
inference, is insufficient” to constitute protected expression.)
(internal punctuation and citation omitted).
when he was laid off by Cook County. Therefore, the5
issue before us is whether there was a causal link be-
tween the two.
The causal nexus referenced in the third element may
be met through either direct evidence (essentially Cook
County admitting it fired Dr. Jajeh because he com-
plained to the EEOC) or through a “convincing mosaic
of circumstantial evidence” permitting that same in-
ference. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir. 2011). Dr. Jajeh has no direct evidence, but
argues that he has sufficient circumstantial evidence to
satisfy the direct method. There are three categories of
circumstantial evidence under the “convincing mosaic”
approach: (1) suspicious timing, ambiguous statements

-- 16 of 25 --

No. 11-2331 17
and other bits and pieces from which an inference of
retaliatory intent might be drawn; (2) evidence that
similarly situated employees were treated differently;
and (3) evidence that the employer offered a pretextual
reason for an adverse employment action. Coleman,
667 F.3d at 860.
The district court found that the timing of Dr. Jajeh’s
termination was not suspicious because he was laid off
in April 2007—over five months after he last complained
of discrimination, and at the same time that 200 other
physicians were laid off due to budget cuts. The district
court then concluded that Dr. Jajeh lacked any evidence
of a causal connection between his termination and
the EEOC complaint.
Dr. Jajeh first argues that the district court erred by
relying too heavily on the amount of time that passed
between his EEOC complaint and his eventual termina-
tion to find a lack of a causal link between the two
events. Rather, he contends that Dr. Lad was merely
biding his time and waiting for a plausible excuse to
fire Dr. Jajeh. The mass layoffs conducted by Cook
County presented such an opportunity. But contrary to
Dr. Jajeh’s argument, the district court did not rely
on the timing of events to find that Dr. Jajeh did not
satisfy the direct method. The court only noted that the
timing of the layoff was not suspicious and did not,
in itself, support a causal connection.
Dr. Jajeh next points to Dr. Lad’s written statements
as circumstantial evidence from which retaliatory intent
can be drawn. Specifically, in his letter to Dr. Reilly,

-- 17 of 25 --

18 No. 11-2331
Dr. Lad stated that the suspension of Dr. Jajeh’s
credentials was “an opportunity to solve a problem that
has been going on ever since [Dr. Lad arrived at the
hospital].” Dr. Jajeh argues that this reveals a retaliatory
animus and that Dr. Lad was waiting for an opportunity
to fire him. Moreover, Dr. Jajeh notes that Dr. Lad
took action to prevent him from being rehired. Generally,
a laid-off physician is placed on a list for preferential
rehiring. Dr. Jajeh was not selected for preferential re-
hiring, however, because Dr. Lad wrote on Dr. Jajeh’s
personnel record that he was “not a team player [and
has] difficulties with interpersonal relationships.” Be-
cause budget cuts were the stated reason for his termina-
tion, and not difficulties with interpersonal relation-
ships, Dr. Jajeh concludes this is also evidence of pretext.
Dr. Jajeh’s argument falters for several reasons. First,
the letter from Dr. Lad to Dr. Reilly was written prior to
Dr. Jajeh’s EEOC complaint, and therefore before any
statutorily protected expression. Moreover, although
the letter permits the inference that Dr. Lad wanted
Dr. Jajeh fired, it does not allow any inference as to why
he wanted Dr. Jajeh fired. Again, it was written prior to
Dr. Jajeh’s EEOC complaint, so one reason we know
that Dr. Lad did not want him fired was to retaliate
against him for filing the complaint. Dr. Jajeh’s evidence
also focuses heavily on actions taken by Dr. Lad—but
Dr. Lad had no say in determining which physician
would be laid off as part of the budget cuts. To prevail
on his retaliation claim, Dr. Jajeh must prove that the
decisionmaker (i.e., “the person responsible for the con-
tested decision”) has acted for a prohibited reason.

-- 18 of 25 --

No. 11-2331 19
The district court found that Dr. Simon, Interim Chief of the 6
Bureau of Health, was the relevant decisionmaker because
he ultimately approved the layoffs. But Dr. Jajeh argues that
Dr. Simon was nothing more than a rubber stamp who
approved all layoffs submitted by his subordinates. Because
we draw all reasonable inferences in Dr. Jajeh’s favor, we
assume that Dr. Jajeh is correct in this regard.
Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372,
379 (7th Cir. 2011).
Dr. Jajeh attempts to circumvent this latter problem
by advancing a “cat’s paw” theory of liability, where a
biased supervisor (in this case, Dr. Lad) uses an
impartial decisionmaker to achieve retaliatory ends. See
generally Cook v. IPC Int’l Corp., 673 F.3d 625, 628 (7th
Cir. 2012). The relevant decisionmaker, according to
Dr. Jajeh, was Dr. Reilly because he decided that a physi-
cian would be laid off from the Hematology/Oncology
Department, determined which three evaluators would
conduct the interviews, and was one of those three evalu-
ators.6
Dr. Jajeh contends that Dr. Lad’s retaliatory animus
influenced Dr. Reilly and caused his termination for
two reasons. First, Dr. Reilly was the recipient of
Dr. Lad’s letter, and therefore knew that Dr. Lad wanted
Dr. Jajeh fired. This knowledge, according to Dr. Jajeh,
prompted Dr. Reilly to select the Hematology/Oncology
Department for a layoff. But this argument is illogical.
Again, the 2005 letter was written prior to Dr. Jajeh’s
EEOC complaint, so even if Dr. Lad’s “animus” influenced

-- 19 of 25 --

20 No. 11-2331
Dr. Reilly, it was not a retaliatory animus and therefore
not prohibited by Title VII. Moreover, Dr. Reilly initially
resisted any layoffs in the Hematology/Oncology De-
partment, which belies any claim that he purposefully
targeted the department in order to terminate Dr. Jajeh.
It was only upon Dr. Simon’s insistence on further
layoffs that Dr. Reilly selected the Hematology/
Oncology Department. Finally, Dr. Reilly was one of
three evaluators applying a uniform set of standards
to determine which of the three physicians in the de-
partment would be laid off. He had no way of
knowing that Dr. Jajeh, rather than one of the other
two physicians, would be selected for termination.
It is therefore highly improbable that he selected the
Hematology/Oncology Department for a reduction
with the intent that Dr. Jajeh be terminated.
Second, Dr. Jajeh points to the administrative hearing
initiated by Dr. Lad which, Dr. Jajeh posits, was carried out
in retaliation for his numerous complaints. Dr. Reilly
later used this administrative hearing as a negative per-
formance review to deduct points from Dr. Jajeh’s score
in his evaluation. And because Dr. Jajeh received a lower
score than the two other physicians in his department,
he was fired. Thus, Dr. Lad’s retaliatory animus,
according to Dr. Jajeh, was the cause of his discharge.
We disagree. Under the “cat’s paw” theory of liability,
“an employer may be liable . . . if a nondecision-maker
performs an act motivated by [retaliatory] animus that
is intended to cause an adverse employment action, and
that act is a proximate cause of the ultimate employment

-- 20 of 25 --

No. 11-2331 21
Dr. Jajeh would have scored 1,312 without the negative 7
performance review, while Drs. Catchatourian and Telfer
scored 1,640 and 1,400, respectively.
action.” Harris v. Warrick Cnty. Sheriff’s Dep’t, 666 F.3d
444, 448 (7th Cir. 2012) (emphasis added) (internal quota-
tion marks and punctuation omitted) (quoting Staub v.
Proctor Hosp., 131 S. Ct. 1186, 1194 (2011)). Even if
Dr. Jajeh had no points deducted for his negative perfor-
mance review, he nevertheless would have scored
lower than Drs. Catchatourian and Telfer because they
each received higher scores for having a specialty posi-
tion. The administrative hearing, therefore, was not a7
proximate cause of his termination. In any event, the
administrative hearing also occurred prior to Dr. Jajeh’s
EEOC complaint—so it was not initiated in retaliation
for any statutorily protected activity.
Dr. Jajeh lastly points to two additional facts as cir-
cumstantial evidence in the form of pretext. First, immedi-
ately after he was laid off, Dr. Telfer went from a part-
time to full-time employee. Such a move could, conceiv-
ably, support an inference of pretext in some cases. Cf.
Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 522 (6th
Cir. 1997) (in age-discrimination case, younger em-
ployee’s promotion from part-time to full-time em-
ployee immediately after employer fired plaintiff was
sufficient to establish that younger employee replaced
plaintiff).
But here, Cook County’s stated reason for terminating
Dr. Jajeh was to reduce budget costs. And the County

-- 21 of 25 --

22 No. 11-2331
did in fact reduce budget costs by eliminating Dr. Jajeh’s
position and promoting Dr. Telfer—the County went
from having two full-time employees and one part-time
employee, to only two full-time employees. “Pretext is
more than just faulty reasoning or mistaken judgment
on the part of the employer; it is a lie, specifically a
phony reason for some action.” Silverman v. Bd. of Educ. of
Chicago, 637 F.3d 729, 743-44 (7th Cir. 2011) (internal
quotation marks and punctuation omitted). Dr. Jajeh
cannot demonstrate that Cook County’s articulated
reason for his termination was a lie, and therefore
Dr. Telfer’s promotion does not support an inference
of pretext.
Second, Dr. Jajeh argues that Cook County did not
follow its own procedures and policies by using em-
ployee evaluations, rather than seniority, to determine
which physicians to lay off. If seniority had been used as
a determining factor, then Dr. Jajeh would have been
retained. Again, Dr. Jajeh is correct in noting that “an
employer’s failure to follow its own internal employ-
ment procedures can constitute evidence of pretext.”
Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th
Cir. 2005). But as the district court aptly stated, “[T]he
decision not to use seniority as the primary considera-
tion was one that affected all employees.” Jajeh v. Cnty.
of Cook, No. 09-cv-7227, 2011 WL 1838758, at *6 (N.D. Ill.
May 12, 2011). It is highly speculative for Dr. Jajeh to
assert that seniority was not given determinative effect
so that he would be selected for termination, when
200 other physicians were also laid off using the same
criteria, and he offers no evidence in support of this
bold assertion.

-- 22 of 25 --

No. 11-2331 23
Because Dr. Jajeh has not presented sufficient circum-
stantial evidence of a causal link between his EEOC
complaint and his termination, he cannot satisfy the
direct method.
2. Indirect Method
Dr. Jajeh next argues that he has sufficient evidence
to satisfy the indirect method of proving his retaliation
claim. The first two elements of the indirect and direct
methods of proof are the same, but the third element
differs. Instead of proving a direct causal link, a plaintiff
proceeding under the indirect method “must show that
he was performing his job satisfactorily and that he
was treated less favorably than a similarly situated em-
ployee who did not complain of discrimination.” Leonard
v. E. Ill. Univ., 606 F.3d 428, 431 (7th Cir. 2010).
The indirect method employs the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). If Dr. Jajeh succeeds in establishing
a prima facie case, Cook County then must offer a legiti-
mate, nondiscriminatory explanation for the decision
to discharge him, O’Leary, 657 F.3d at 635—which in
this case is the county-wide budget cuts. The burden of
production then shifts back to Dr. Jajeh to show that
the articulated reason for his discharge was pretextual.
Id. The district court assumed without deciding that
Dr. Jajeh could establish a prima facie case, but held
there was no evidence suggesting pretext. Like the dis-
trict court, we too focus on the question of pretext.

-- 23 of 25 --

24 No. 11-2331
See Keeton v. Morningstar, Inc., 667 F.3d 877, 885 (7th Cir.
2012) (“Although the question of pretext normally
arises only after the plaintiff has established a prima
facie case . . . we may skip over the initial burden-shifting
of the indirect method and focus on the question of pre-
text.”).
We need not spend much time dispensing with
Dr. Jajeh’s argument. Dr. Jajeh presents the same evi-
dence of pretext under the indirect method as in the
direct method. See Venturelli v. ARC Cmty. Servs., Inc., 350
F.3d 592, 601 (7th Cir. 2003) (pretext category of circum-
stantial evidence under the direct method is substan-
tially the same as the evidence required under the
indirect method). And as we noted in our direct-
method analysis, Dr. Jajeh has not presented sufficient
evidence to establish that Cook County’s budget cuts
were pretextual. Thus, Dr. Jajeh cannot satisfy the
indirect method of proving retaliation.
3. Post-Termination Retaliation
Although Dr. Jajeh’s retaliation claim focuses heavily
on his termination, he also argues that Dr. Lad retaliated
against him following his termination. As previously
discussed, Dr. Lad noted in Dr. Jajeh’s personnel record
that he would not recommend Dr. Jajeh for rehire
because he was “not a team player [and has] difficulties
with interpersonal relationships.” Dr. Jajeh contends
that this notation was itself a distinct and actionable act
of retaliation because it prevented his rehire. The district
court did not directly address this argument, but post-

-- 24 of 25 --

No. 11-2331 25
termination acts of retaliation may be actionable under
Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
(allowing claim for bad reference to prospective em-
ployer in retaliation for filing EEOC charge).
Nevertheless, we are unpersuaded. There is simply
no evidence in the record from which a reasonable
jury could conclude that Dr. Lad was motivated by a
retaliatory animus when marking Dr. Jajeh as ineligible
for rehire. As Dr. Jajeh acknowledges, Dr. Lad’s feelings
about him were consistent throughout their working
relationship. Dr. Lad felt that Dr. Jajeh was a problem
employee both before and after he filed his EEOC charge.
No evidence supports the inference that Dr. Lad’s
opinion of Dr. Jajeh worsened because he filed an EEOC
charge or that his explanation that Dr. Jajeh was “not a
team player” was pretext for a retaliatory motive. See
Brown v. Ill. Dep’t of Natural Res., 499 F.3d 675, 684-85
(7th Cir. 2007) (affirming summary judgment for em-
ployer on retaliation claim where performance reviews
were negative both before and after protected conduct
of filing EEOC charge). Accordingly, summary judg-
ment was also appropriate for this claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment.
5-2-12

-- 25 of 25 --