Khalid Khowaja v. JEFFERSON B. SESSIONS III, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1155
K HALID K HOWAJA,
Plaintiff-Appellant,
v.
JEFFERSON B. S ESSIONS III, Attorney
General of the United States,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00983-NJ — Nancy Joseph, Magistrate Judge.
A RGUED M AY 17, 2018 — DECIDED JUNE 27, 2018
Before BAUER, EASTERBROOK, and M ANION, Circuit Judges.
BAUER, Circuit Judge. Khalid Khowaja served as a Special
Agent (SA) in the Federal Bureau of Investigation’s Milwaukee
field office for nearly a year before his employment was
terminated. Khowaja brought this lawsuit under Title VII,
alleging that he was discriminated against and terminated
from the FBI, and that he was subject to disparate treatment,

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2 No. 18-1155
because he is Muslim. The district court granted summary
judgment in favor of the Attorney General, and we affirm.
I. BACKGROUND
Prior to joining the FBI, Khowaja served as an Immigration
Enforcement Agent with the Department of Homeland
Security, Immigration and Customs Enforcement from 2008 to
2012. On February 26, 2012, he began employment with the FBI
as a SA on a two-year probationary term. He was assigned to
the Milwaukee field office and placed in the office’s Joint
Terrorism Task Force.
Probationary SAs are evaluated using the FBI’s “Suitability
Standards for Probationary Employees,” which include the
following six “dimensions:” (1) conscientiousness; (2) coopera-
tiveness; (3) emotional maturity; (4) initiative; (5) integrity and
honesty; and (6) judgment. A deficiency in any one of these
dimensions can result in a SA’s removal.
During his employment, Khowaja’s judgment, or lack
thereof, was frequently cited as an area of concern by his
immediate supervisor, Supervisory Special Agent (SSA) Mark
Green, which ultimately formed the basis for his termination.
On June 17, 2013, a recommendation for removal report was
approved by SSA Green as well as the field office’s Special
Agent in Charge (SAC), Teresa Carlson, and the Assistant
Special Agent in Charge (ASAC), G.B. Jones. The report listed
several instances where Khowaja demonstrated a lack of
suitability in the judgment dimension. Importantly, Khowaja
does not dispute that any of these instances occurred.
In October 2012, Khowaja went to a local jail to recruit an
inmate as a Confidential Human Source (CHS), but failed to
provide Miranda warnings before interviewing the inmate. SSA

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No. 18-1155 3
Green counseled Khowaja about this mistake, and noted that
he should have known to administer Miranda warnings to an
individual in custody given his prior law enforcement experi-
ence. Rather than accept this counsel, Khowaja argued with
SSA Green and defended his actions.
In another instance, Khowaja was instructed, and ulti-
mately failed, to properly coordinate with local law enforce-
ment officials before taking investigative actions. In December
2012, Khowaja was working an investigation of a threatening
subject in West Bend, Wisconsin, which the local police had
been involved with from the beginning. Without coordination
from local law enforcement or approval from his supervisors,
Khowaja independently interviewed administrators at the
West Bend High School regarding the subject. The administra-
tors were alarmed at the FBI’s involvement and contacted
the local police, who in turn were angered that they had
no prior knowledge of Khowaja’s actions. Khowaja initially
defended his actions to the local police chief, but he later
admitted his mistake after being counseled by SSA Green.
The report also cited other instances where Khowaja
demonstrated a disregard for his supervisors’ authority. For
example, Khowaja needed repeated reminders from his
supervisors not to undertake interviews of certain subjects. In
addition, he disregarded an instruction to maintain a lower
profile with a CHS and avoid meeting the CHS in public.
Finally, the report cited his avoidance of senior agents in favor
of working with agents junior to him, specifically noting an
instance where Khowaja brought an untrained and unarmed
intelligence analyst into a dangerous area of Milwaukee to
contact a potential source.

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4 No. 18-1155
In summary, the report found that Khowaja had demon-
strated poor judgment since his arrival at the field office, but
that his supervisors had hoped training and cultivation of
relationships with senior agents would reverse this trend.
Instead, the report concluded, Khowaja’s arrogance, his
avoidance of senior agents, and his defensiveness when
corrected about his mistakes had hindered his judgment.
Additionally, Khowaja’s performance assessments through-
out his employment repeatedly highlighted his judgment as an
area of concern. During his tenure as a SA, Khowaja’s perfor-
mance was evaluated by SSA Green and others in five “Perfor-
mance Summary Assessments” (PSA), a “Performance Ap-
praisal Report” (PAR), and in a “6 month New Agent Assess-
ment” (NAA). In his second PSA for the period of
September 14, 2012, to October 14, 2012, the assessment noted
that Khowaja should use good judgment and develop relation-
ships with senior agents. His third PSA for the period of
November 14, 2012, to January 14, 2012, stated that
“[p]rofessional judgment has been an issue … that must be
improved.” The assessment cited to another instance involving
Khowaja’s lack of coordination with local law enforcement,
and concluded that “if his current judgment cannot improve he
is unlikely to succeed in the FBI.”
Khowaja’s six-month NAA highlighted an “unacceptable”
rating in the judgment dimension. While the assessment
concluded that Khowaja was still suitable for continued
employment as a probationary SA, it included a “plan of
action” to address Khowaja’s judgment deficiency. His fifth
PSA for the period of March 14, 2013, to May 14, 2013, stated
that he had “shown deficiencies in judgment on a regular
basis,” and that “[h]is lack of judgment requires much closer

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No. 18-1155 5
supervision of his work than would be expected of a special
agent.”
In late February of 2013, around the time Khowaja’s six-
month NAA was completed, Khowaja’s supervisors inquired
of the “Performance Appraisal Unit,” a section of the Human
Resources Division, about his probationary status and potential
termination. By May 3, 2013, SSA Green had provided Human
Resources with a draft recommendation for removal report,
approved by SAC Carlson and ASAC Jones. On May 16, ASAC
Jones and SSA Green met with Khowaja for his file review and
informed him that his removal was being sought. Seven days
later, Khowaja began the process of filing a formal complaint
with the Equal Employment Opportunity Commission (EEOC).
The final recommendation for removal report was approved
on June 17, 2013, and in a letter dated July 5, 2013, James
Turgal, Assistant Administrative Director of the FBI’s Human
Resources Division, removed Khowaja from his probationary
SA position based on his failure to meet all of the suitability
standards.
Khowaja’s allegations of religious discrimination focus on
SSA Green, a white Christian. According to Khowaja, SSA
Green asked Khowaja during their first meeting if he was
Muslim and questioned him about his faith. SSA Green, who
is fluent in Arabic, yelled Arabic holy phrases, such as
“Alhamdulillah!” (“praise be to God!”), throughout the office
and used such Arabic phrases in emails. Khowaja claims SSA
Green used these phrases in a derogatory manner. He also
asserts that SSA Green mocked Middle Eastern accents, called
a Muslim CHS a “tool,” and pointed out the fact that Khowaja
is Muslim during a presentation to other agents. Finally,
Khowaja also stresses a remark made by ASAC Jones in June

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6 No. 18-1155
2013 to a local police chief describing Khowaja as “not our
typical agent.”
As to his disparate treatment claim, Khowaja asserts that he
was held to a different standard as his probationary SA peers,
particularly with regard to SA Adam Herndon. SA Herndon
accompanied Khowaja during the episode where Khowaja
failed to administer Miranda warnings to an inmate. However,
SA Herndon had no prior law enforcement experience and
vowed to never let it happen again instead of defending his
actions. Additionally, SA Herdon accompanied Khowaja to
West Bend High School without the coordination of local
police. Importantly, Khowaja was lead investigator on that
particular subject and he was ultimately responsible for the
lack of coordination.
After exhausting his administrative remedies with the
EEOC and the Department of Justice, Khowaja filed this two-
count lawsuit on June 8, 2016. Khowaja alleged first that he
was unlawfully discriminated against and removed from his
position because he is Muslim, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a). His claim also
contained allegations that he was subjected to a hostile work
environment, which Khowaja voluntarily dismissed with
prejudice before summary judgment, and subjected to dispa-
rate treatment. His second claim alleged that he was intention-
ally and unlawfully terminated in retaliation for beginning the
EEOC process, in violation of 42 U.S.C. § 2000e-3(a).
The district court granted summary judgment in favor of
the Attorney General with respect to both claims. On appeal,
Khowaja only challenges the court’s ruling with respect to his
first claim of religious discrimination and disparate treatment.

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No. 18-1155 7
II. DISCUSSION
Summary judgment is appropriate if the moving party has
shown there is “no genuine dispute as to any material fact,”
and is entitled to summary judgment as a matter of law. Fed.
R. Civ. P. 56(a). We review a grant of summary judgment
de novo, construing all factual disputes and drawing all
reasonable inferences in favor of the non-moving party. Golla
v. Office of Chief Judge of Cook Cty., Ill., 875 F.3d 404, 407 (7th Cir.
2017).
Title VII prohibits federal employers from discriminating
against federal employees and applicants on the basis of
religion. 42 U.S.C. § 2000e-16(a). In Ortiz v. Werner Enterprises,
Inc., we held that the “direct” and “indirect” methods of proof
in employment discrimination cases must not be treated as
distinct legal standards. 834 F.3d 760, 765 (7th Cir. 2016).
Rather, all the evidence must be evaluated as a whole, and the
legal standard “is simply whether the evidence would permit
a reasonable factfinder to conclude that the plaintiff’s …
religion … caused the discharge.” Id. at 765–66. Ortiz made
clear that we were only concerned with the proposition of
sorting evidence into “direct” and “indirect” piles, and that our
holding did not alter the burden-shifting framework estab-
lished in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Id.
On appeal, Khowaja maintains that he established a prima
facie case of religious discrimination and disparate treatment
under the McDonnell Douglas framework. Both claims can be
established under the same framework, so we evaluate them
together. Thus, Khowaja carries the burden of showing that
“(1) [he] is a member of a protected class; (2) [his] job perfor-
mance met [the FBI’s] legitimate expectations; (3) [he] suffered

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8 No. 18-1155
an adverse employment action; and (4) another similarly
situated individual who was not in the protected class was
treated more favorably.” McKinney v. Office of Sheriff of Whitley
Cty., 866 F.3d 803, 807 (7th Cir. 2017) (quoting Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 750–51 (7th Cir. 2006)). If
Khowaja can establish a prima facie case, the burden shifts to
the Attorney General to articulate a legitimate, non-discrimina-
tory reason for terminating his employment. Id. Then, Khowaja
must present evidence that the proffered reason is pretext. Id.
While Khowaja, as a Muslim, is a member of a protected
class, and clearly suffered an adverse employment action
through his termination, Khowaja’s prima facie case is doomed
by one major hurdle: his job performance clearly did not meet
the FBI’s legitimate expectations. Probationary SAs are
evaluated under the various suitability dimensions, and a
deficiency in any one of these can lead to termination. The
record conclusively reflects that Khowaja had ongoing
judgment-related issues throughout his employment. Khowaja
does not contest any of the instances described above and
contained in the recommendation for removal report occurred.
He admits that he conducted an un-Mirandized interview with
an inmate in custody, and that he was defensive when coun-
seled by SSA Green. He also admits that he violated protocol
when he conducted an interview at the West Bend High School
without coordinating with the local police or his supervisor.
Additionally, Khowaja does not dispute that his judgment
was repeatedly cited as an issue in his performance assess-
ments. Numerous PSAs noted Khowaja’s judgment deficiency,
including one from November 2012 to January 2013, which
concluded that “if his current judgment cannot improve he is
unlikely to succeed in the FBI.” Moreover, Khowaja’s six-

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No. 18-1155 9
month NAA rated his judgment as unacceptable, and provided
a “plan of action” to address this deficiency. The recommenda-
tion for removal report cited Khowaja’s lack of suitability in
the judgment dimension, and his July 5, 2013, termination
letter stated that his employment was terminated for failure to
meet the suitability standards. The undisputed facts show that
Khowaja was not meeting the FBI’s legitimate expectations,
and consequently, he cannot establish a prima facie case of
intentional discrimination or disparate treatment under the
McDonnell Douglas framework.
Although Khowaja’s prima facie case fails at the onset, he
points us to the fact that SA Herndon was not terminated, even
though he was involved in some of the same lapse-of-judgment
episodes. Khowaja asserts that SA Herndon serves as a
similarly situated co-worker, and that SA Herndon’s preferen-
tial treatment means the FBI’s basis for terminating him is
pretext for religious discrimination. The similarly situated and
pretext analysis often overlap, as comparator evidence and
selective enforcement of an employer’s rules are relevant to
both inquiries. See Coleman v. Donahoe, 667 F.3d 835, 857–59 (7th
Cir. 2012).
“Similarly situated employees must be directly comparable
to the plaintiff in all material respects,” yet this is a flexible
inquiry with no magic formula. Id. at 846–47 (internal quota-
tion marks and citation omitted). Both Khowaja and SA
Herndon were probationary SAs who began their employment
in close proximity; SSA Green served as their immediate
supervisor; and SA Herndon was involved in both the failure
to Mirandize episode and the West Bend High School episode.
Despite these similarities on the surface, there are signifi-
cant distinctions in their treatment that undermine any

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10 No. 18-1155
comparison. See id. at 847 (“In the usual case, a plaintiff must
at least show that the comparators … engaged in similar
conduct without such differentiating or mitigating circum-
stances as would distinguish their conduct or the employer's
treatment of them.”) (internal quotation marks and citation
omitted). First, SA Herndon, like Khowaja, was also counseled
by SSA Green for his mistakes after both episodes; he did not
escape discipline. Significantly, SA Herndon did not defend his
mistakes in either episode, unlike Khowaja. Second, as it relates
to the West Bend High School episode, Khowaja was the lead
investigator and accordingly, the responsibility fell on him for
that mistake. Most importantly, Khowaja’s termination and his
failure to meet the judgment dimension of the suitability
standards was based on numerous other instances lacking SA
Herndon’s involvement. Khowaja’s recommendation for
removal report cited judgment-related instances where he
disregarded his supervisors’ authority to proceed with certain
interviews, met with a CHS in public despite being instructed
to maintain a lower profile, and failed again to properly
coordinate with local law enforcement. Simply put, Khowaja
and SA Herndon are not similarly situated, and their compari-
sons do not demonstrate disparate treatment or pretext.
Setting aside the McDonnell Douglas framework and
examining the evidence as a whole, Khowaja presents no
evidence that would lead a reasonable factfinder to conclude
that he was terminated, or subjected to disparate treatment,
because he is Muslim. Khowaja offers no evidence of religious
discrimination or animus by SSA Green or any other supervi-
sor. True, SSA Green admitted that he inquired about
Khowaja’s religion during their first meeting, and that he did
use Arabic phrases throughout the office given his fluency in
the language. However, nothing in the record supports

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No. 18-1155 11
Khowaja’s contention that SSA Green’s inquiry into Khowaja’s
religion was demeaning, or that his use of Arabic phrases or
accents was done in a derogatory manner. More importantly,
Khowaja fails to demonstrate how any of SSA Green’s actions
constitute religious discrimination against him, or how these
actions are related to his termination. Finally, while ASAC
Jones did remark that Khowaja is “not our typical agent,” he
did so while apologizing to local police about Khowaja’s
failure to properly coordinate with them. Khowaja offers no
evidence that this remark evinces religious animus or was in
any way related to the fact that he is Muslim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the Attorney General.

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12 No. 18-1155
MANION, Circuit Judge, concurring in part and concurring
’—ȱ‘Žȱ“ž–Ž—ǯȱ ȱŠ›ŽŽȱ ’‘ȱ‘ŽȱŒ˜ž›ȱ‘Šȱ‘ŽȱĴ˜›—Ž¢ȱ Ž—Ȭ
Ž›Š•ȱ Šœȱ Ž—’•Žȱ ˜ȱ œž––Š›¢ȱ “ž–Ž—ȱ ’—ȱ ‘’œȱ ŒŠœŽǯȱ ȱ ›’Žȱ
œŽ™Š›ŠŽ•¢ȱ˜ȱŠ›ŽœœȱŠȱ™˜Ž—’Š•ȱ™˜’—ȱ˜ȱŒ˜—žœ’˜—ȱ’—ȱŠ™™•¢Ȭ
ing the burden-œ‘’’—ȱ ›Š–Ž ˜›”ȱ ˜ȱ McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
The magistrate judge in this case held that Khowaja’s
Œ•Š’–œȱŠ’•Žȱœ’–™•¢ȱ‹ŽŒŠžœŽȱ‘ŽȱŒ˜ž•ȱ—˜ȱœ‘˜ ȱ‘Šȱ‘Žȱ Šœȱ
™Ž›˜›–’—ȱž™ȱ˜ȱ‘Žȱ ’s legitimate expectations. The judge
cited our decision in Brum–ŽĴȱŸǯȱŽŽȱ—Ž›™›’œŽœǰȱ —ŒǯǰȱŘŞŚȱǯřȱ
742, 744–45 (7th Cir. 2002)ǰȱ ˜›ȱ ‘Žȱ ™›˜™˜œ’’˜—ȱ ‘Šȱ Š—ȱ Ž–Ȭ
™•˜¢ŽŽȱ ‘˜ȱ Š’•œȱ ˜ȱ –ŽŽȱ his Ž–™•˜¢Ž›’s legitimate expecta-
tions cannot establish a prima facie case under McDonnell
Douglas unless he can prove that the expectations themselves
Ž›ŽȱŠȱœ–˜”ŽœŒ›ŽŽ—ȱ˜›ȱ’œŒ›’–’—Š’˜—ǯȱŽŒŠžœŽȱ‘Žȱ ’s ex-
pectations Š–’ĴŽ•¢ȱŠ›Ž —˜ȱ™›ŽŽ¡ȱ˜›ȱ’œŒ›’–’—Š’˜—ǰȱ‘Žȱ
“žŽȱ ›Š—Žȱ œž––Š›¢ȱ “ž–Ž—ȱ ˜ȱ ‘ŽȱĴ˜›—Ž¢ȱ Ž—Ž›Š•ǯȱ
As a result, she did not consider whether Khowaja’s col-
league, Special Agent Adam Herndon, Šœȱ Šȱ œ’–’•Š›•¢ȱ œ’žȬ
ŠŽȱŽ–™•˜¢ŽŽȱ ‘˜ȱ Šœȱ—˜ȱŽ›–’—ŠŽȱ˜›ȱŒ˜–™Š›Š‹•ŽȱŒ˜—Ȭ
duct.
˜ ŽŸŽ›ǰȱ˜ž›ȱ•ŠŽ›ȱŒŠœŽœȱ–Š”ŽȱŒ•ŽŠ›ȱ‘ŠȱŠȱ™•Š’—’ěȱŒŠ—ȱŽœȬ
tablish a prima facie ŒŠœŽȱ‹¢ȱœ‘˜ ’—ȱ‘Šȱ‘ŽȱŽ–™•˜¢Ž›’s legit-
imate expectations we›Žȱ’œ™Š›ŠŽ•¢ȱŠ™™•’Žȱ’—ȱ‘’œȱŒŠœŽǯȱœȱ Žȱ
explained, “[ Ǿ‘Ž—ȱŠȱ™•Š’—’ěȱ™›˜žŒŽœȱŽŸ’Ž—ŒŽȱœžĜŒ’Ž—ȱ˜ȱ
›Š’œŽȱŠ—ȱ’—Ž›Ž—ŒŽȱ‘ŠȱŠ—ȱŽ–™•˜¢Ž›ȱŠ™™•’Žȱ’œȱ•Ž’’–ŠŽȱŽ¡Ȭ
™ŽŒŠ’˜—œȱ ’—ȱ Šȱ ’œ™Š›ŠŽȱ –Š——Ž›ȱ ǯǯǯȱ ‘Žȱ œŽŒ˜—ȱ Š—ȱ ˜ž›‘ȱ
prongs merge—Š••˜ ’—ȱ™•Š’—’ěœȱ˜ȱœŠŸŽȱ˜ěȱœž––Š›¢ȱ“žȬ
–Ž—ȱ˜›ȱ‘Žȱ’–Žȱ‹Ž’—ǰȱŠ—ȱ™›˜ŒŽŽȱ˜ȱ‘Žȱ™›ŽŽ¡ȱ’—šž’›¢ǯ”
•”‘Š’‹ȱŸǯȱž—”’—ȱ˜—žœǰȱ —ŒǯǰȱŚşřȱǯřȱŞŘŝǰȱŞřŗȱǻŝ‘ȱ’›ǯȱŘŖŖŝǼȱ
ǻšž˜’—ȱŽŽ•ŽȱŸǯȱ˜ž—›¢ȱžǯȱ —œǯȱ˜ǯǰȱŘŞŞȱǯřȱřŗşǰȱřŘşȱǻŝ‘ȱ

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No. 18-1155 13
’›ǯȱ ŘŖŖŘǼȱ ǻœ˜–Žȱ ’—Ž›—Š•ȱ šž˜Š’˜—ȱ –Š›”œȱ ˜–’ĴŽǼǼǯ Thus,
Khowaja could have cleared the prima facie hurdle even
‘˜ž‘ȱ‘Žȱ Šœȱ—˜ȱ™Ž›˜›–’—ȱž™ȱ˜ȱ‘Žȱ ’s expectations.
Žȱ“žœȱ‘Šȱ˜ȱœ‘˜ ȱ‘Šȱ Ž›—˜—ȱ ŠœȱŠȱœžĜŒ’Ž—ȱŒ˜–™Š›Š˜›ȱ
and was not terminated.
˜›ȱ ‘’œȱ ›ŽŠœ˜—ǰȱ ‘Žȱ Œ˜ž›ȱ ’œȱ —˜ȱ šž’Žȱ Œ˜››ŽŒȱ ˜ȱ œŠ¢ȱ ‘Šȱ
Khowaja cannot establish his McDonnell Douglas prima facie
ŒŠœŽȱ‹ŽŒŠžœŽȱ‘ŽȱŠ’•Žȱ˜ȱ–ŽŽȱ‘Žȱ ’s expectations. Maj. Op.
at 9. Nevertheless, t‘ŽȱŒ˜ž›ȱŠ‹•¢ȱŽ–˜—œ›ŠŽœȱ‘Š Khowaja
Š—ȱ Ž›—˜—ȱ Ž›Žȱ—˜ȱœ’–’•Š›•¢ȱœ’žŠŽ. It is this, not Khow-
aja’s ™˜˜›ȱ“˜‹ȱ™Ž›˜›–Š—ŒŽǰȱ‘Šȱž•’–ŠŽ•¢ȱ˜˜–œȱ‘’œȱŒŠœŽǯȱ
ȱ›Žœ™ŽŒž••¢ȱŒ˜—Œž›ǯ

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