7th Circuit upholds summary judgment for the VA, ruling a fired Black pharmacist did not…

Record source: CourtListener

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 24-2943 HAKEEM ABAYOMI, Plaintiff-Appellant, v. DOUGLAS A. COLLINS, Secretary, United States Department of Veterans Affairs, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-05661 — John F. Kness, Judge. ____________________ ARGUED APRIL 23, 2025 — DECIDED JULY 16, 2026 ____________________ Before HAMILTON, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges. JACKSON-AKIWUMI, Circuit Judge. Hakeem Abayomi sued his former employer, the Department of Veterans Affairs, un- der Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §§ 2000e–2(a), 2000e–3(a). In his suit, Abayomi alleges he was fired based on his race and in retaliation for filing an internal discrimination complaint. The district court granted sum- 2 No. 24-2943 mary judgment for the Department as to both claims. We af- firm. I We recount the facts in the light most favorable to Aba- yomi as the party opposing summary judgment. Scaife v. United States Dep’t of Veterans Affs., 49 F.4th 1109, 1114 (7th Cir. 2022). Abayomi started working as a clinical pharmacist with the Department of Veterans Affairs in Hines, Illinois, on May 3, 2015. Abayomi was the only African American pharmacist at the Hines facility. As a pharmacist, Abayomi verified that medications prescribed by medical providers did not conflict with a patient’s other medications, were set to an appropriate dosage, and contained correct labels. Abayomi, alongside other healthcare providers, was responsible for ensuring ap- propriate dosing schedules. Once hired, Abayomi was on a yearlong probation. 1 Dur- ing probation—as the termination letter Abayomi ultimately received explains—termination is required whenever an em- ployee’s “work performance or conduct fail[ed] to demon- strate fitness or qualifications for continued federal employ- ment.” Regardless of probationary status, the Department’s policy permitted termination of any employee for making “a serious medication error that present[ed] a threat to patient safety,” even on a first offense. 1 Abayomi argues at length that he was not a probationary employee. As he explains it, his tenure classification exempted him from probation. But the record reflects that Department pharmacists could not avoid a pro- bationary period upon hire. So, we proceed with Abayomi’s argument in the alternative that he was in fact a probationary employee. No. 24-2943 3 During Abayomi’s employment, he had only one perfor- mance review, in November 2015. For that review, which as- sessed the first five months of his employment, he received a “fully successful” rating (the middle of five ratings) for every category. His overall rating was also “fully successful.” Shortly after that review, Abayomi began reporting to Grant Elliot, supervisor of inpatient pharmacy. Elliot reported to Elizabeth Stone, associate chief of pharmacy, who in turn re- ported to Don Lynx, chief of pharmacy. In her position as as- sociate chief of pharmacy, Stone was required to investigate serious medication errors made by pharmacists that were submitted through the Department’s reporting system or that she learned of from a pharmacist’s supervisor. She also was required to tell the chief of pharmacy if she learned of a med- ication error by a pharmacist under her supervision. In February 2016, several months after Abayomi’s perfor- mance review, Elliot spoke to him about his productivity and explained that it was too low. Within a few weeks, Elliot re- ported to Stone that Abayomi’s productivity improved. On March 7, 2016, approximately ten months into his year- long probation, Abayomi filed an Equal Employment Oppor- tunity (EEO) complaint with the Department. The complaint accused his supervisor, Elliot, of “disparaging treatment and retaliation.” In the complaint, Abayomi alleged that Elliot was, among other things, unfairly focusing on his perfor- mance, singling him out for counseling about low productiv- ity, and unevenly handling his scheduling requests. Abayomi believed Elliot’s treatment stemmed from Elliot’s racial bias against him. Specifically, Abayomi alleged that, before Elliot became his supervisor, Elliot used a southern accent to call out “What’s up, boy?” to him in a derogatory manner. Ac- 4 No. 24-2943 cording to another African American employee, Elliot had also tried to tell a “Black joke” and, on numerous occasions, imitated “Ebonics.” The EEO program manager at the Hines facility informed Abayomi’s supervisory chain—which in- cluded Elliot, Stone, and Lynx—of his complaint on March 15, and mediation was scheduled for April 20. In early April, about a month after Abayomi’s complaint, the Department started receiving anonymous reports by em- ployees that Abayomi had made several medication errors. According to these reports: • On April 8, Abayomi incorrectly dispensed 5,000 units per milliliter of heparin instead of 1,000 units per milliliter, as ordered. • On April 11, Abayomi incorrectly verified a prescribed order of epoetin alfa at an unusu- ally high dose. • On April 12, Abayomi dispensed an insulin injector pen, in violation of the policy to dis- pense insulin in vial form. • On April 13, Abayomi incorrectly verified an IV bag of heparin with an auxiliary label reading “High Alert Epinephrine.” On April 12, after the first two errors, Stone emailed the Department’s labor relations specialist to inquire about Aba- yomi’s probationary period. She followed up the next day by asking whether they should meet “to discuss the case for this employee since his probation period is coming up.” The spe- cialist added Lynx to the thread, responded that he was open to meet, but asked Stone if she had any “evidence.” Regarding the timing of the request, the specialist stated: “[T]his is cut- No. 24-2943 5 ting it pretty close, given that we had a whole year to evaluate probationary employee’s conduct/performance and we are now 3 weeks short of May 3, 2016 [the end of Abayomi’s pro- bation].” In reply, Stone explained that the timing of her in- quiry corresponded to the recency of Abayomi’s medication errors. To this, the specialist reiterated that he should be sent “evidence asap (counselings, documents, policies, code of conduct/ethics, etc…).” He also expressed that “ideally, [i]t would have been helpful, if there was some type of docu- mented remedial training as a result of these 2 events.” At this point, Stone added Elliot to the email thread for Elliot to “sup- ply the information” requested. The record does not state what information Elliot supplied in response to this request. About a week later, on April 19, Stone met with Abayomi and his union representative to conduct a “Weingarten inves- tigation.” The Department uses Weingarten investigations (named after N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), which guaranteed the right to union representation at inves- tigatory interviews) to examine incidents related to patient care, including medication errors. Because such investiga- tions may result in discipline or termination, Department em- ployees are entitled to union representation. At the investiga- tory interview, Abayomi deni

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