E.E.O.C. v. Wc&M Enterprises, Inc.

Decision Date10 August 2007
Docket NumberNo. 05-21090.,05-21090.
Citation496 F.3d 393
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WC&M ENTERPRISES, INC., doing business as Streater-Smith Honda, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James Patrick McInerny (argued), Phillips & Akers, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, DENNIS and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

In this case involving allegations of a hostile work environment, the Equal Employment Opportunity Commission ("EEOC") appeals the district court's decision to enter summary judgment in favor of the defendant-appellee, WC&M Enterprises, Inc., d/b/a Streater-Smith Honda, Inc. We reverse.

I.

On May 11, 2001, Mohommed Rafiq ("Rafiq") was hired as a car salesman by WC&M Enterprises, Inc., d/b/a Streater-Smith Honda, Inc. ("Streater-Smith") at its dealership in Conroe, Texas. Rafiq was born in India and is a practicing Muslim.

Rafiq began having problems with harassment at Streater-Smith immediately following the September 11, 2001 terrorist attacks. When Rafiq arrived at work for his afternoon shift on that day, a number of his co-workers and managers, including Matthew Kiene (a co-worker), Kevin Argabrite (a finance manager), Jerry Swigart (Rafiq's direct supervisor), and Richard Burgoon (the general manager of the dealership), were watching television coverage of the attacks. Upon seeing Rafiq, Kiene called out, "Hey, there's Mohommed," and Argabrite said, "Where have you been?", in a mocking way, at which point everyone began to laugh. Rafiq inferred from these comments "that [his] supervisors and colleagues were implying that [he] had participated in some way in the terrorist attacks against the United States."

After the United States took military action against Afghanistan later in 2001, Kiene and Argabrite began calling Rafiq "Taliban" whenever they saw him (i.e., multiple times per day). In addition, Rafiq's manager, Swigart, also called Rafiq "Taliban" on four or five occasions. Rafiq repeatedly asked Kiene and Argabrite to stop calling him "Taliban," to no avail. He also complained a number of times to Swigart and Burgoon without any real success.

Kiene and Argabrite also allegedly ridiculed and harassed Rafiq in other ways. For example, Kiene asked Rafiq, "Why don't you just go back where you came from since you believe what you believe?" Kiene and Argabrite mocked Rafiq's religious dietary restrictions and his need to pray during the workday. They also often referred to Rafiq as an "Arab," even though Rafiq told them on numerous occasions that he was from India. In addition, Argabrite once played a "Taliban" joke over a speaker on the sales floor. According to Rafiq, this harassment continued through the end of his employment.

On October 16, 2002, Rafiq got into a dispute with his manager, Swigart, after Swigart told him that it was mandatory for all employees to attend a United Way meeting. When Rafiq questioned what, if any, connection there was between the United Way and his job, Swigart said, "This is America. That's the way things work over here. This is not the Islamic country where you come from." After the confrontation, Swigart issued Rafiq a written warning, which stated that Rafiq "was acting like a Muslim extremist" and that he could not work with Rafiq because of his "militant stance."

On October 26, 2002, Argabrite "banged" on the partition separating Rafiq's office space from the sales floor, and said to Rafiq, "Got you." According to Rafiq, Argabrite allegedly did this every time he walked by Rafiq's office in order to startle him. This time, however, Rafiq responded by banging on the partition himself and saying, "Don't do that." Argabrite then allegedly got in Rafiq's face and told Rafiq that he was a manager, so Rafiq could not tell him what to do. Rafiq later complained to Burgoon about Argabrite's continual harassment. Two days later, Rafiq was fired from Streater-Smith.

Rafiq filed a charge of discrimination with the EEOC on August 18, 2003. The EEOC filed this action against Streater-Smith on August 25, 2004, alleging that Streater-Smith subjected Rafiq to a hostile work environment on the basis of his religion and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Streater-Smith moved for summary judgment, and on August 30, 2005, the district court granted summary judgment in its favor. The district court found that Streater-Smith was entitled to summary judgment because (1) Rafiq's EEOC charge was untimely; (2) the EEOC provided insufficient evidence to establish the existence of severe and pervasive harassment; (3) the EEOC could not establish that Rafiq was harassed on the basis of his national origin; and (4) the EEOC had not shown that Rafiq's emotional distress or mental anguish from the harassment was so severe that it interrupted his daily life. The EEOC filed this appeal.

II.

This court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007). A party is entitled to summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Hockman v. Westward Commc'ns, L.L.C., 407 F.3d 317, 325 (5th Cir.2004). In reviewing the evidence, the court must therefore "refrain from making credibility determinations or weighing the evidence." Turner, 476 F.3d at 343.

III.
A.

We address first the issue of timeliness. The district court held that Rafiq's EEOC charge was untimely because it was filed 306 days after the last "objective" incident of harassment, to wit: the written warning that Rafiq was acting like a "Muslim extremist." The EEOC argues that the hostile work environment was a single, continuing violation of Title VII that lasted until the date of Rafiq's termination, and that the evidence shows that Rafiq filed his EEOC charge within 300 days of that date.

An individual claiming discrimination in violation of Title VII must file a charge of discrimination with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). The filing of a timely EEOC charge is a statutory prerequisite to filing suit. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Because a hostile work environment generally consists of multiple acts over a period of time, the requisite EEOC charge must be filed within 300 days of any action that contributed to the hostile work environment. Id. at 115, 117, 122 S.Ct. 2061; see also Pegram v. Honeywell, Inc., 361 F.3d 272, 279-80 (5th Cir.2004). If that requirement is met, the court may consider all of the acts that are alleged to have contributed to the hostile work environment, even though some of them may have taken place outside of the 300-day filing period. Morgan, 536 U.S. at 117, 122 S.Ct. 2061.

Here, the EEOC provided sufficient evidence that Rafiq was harassed after October 16, 2002. Rafiq stated at his deposition that he was called "Taliban" multiple times per day and that Argabrite and Kiene frequently called him an "Arab." He further stated that "this went all the way to the last day." He also filed an affidavit in the district court that specifically states that "[t]hese comments based on my national origin and religion ... persisted through the end of my employment."

The district court, without citation to any authority, rejected this evidence because it was not "objective." We find this conclusion untenable. Sworn affidavits and deposition testimony are certainly appropriate for review on a Rule 56 motion for summary judgment. See Fed.R.Civ.P. 56(c) (summary judgment appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact") (emphasis added). Viewing this evidence in the light most favorable to the EEOC, a factfinder could easily conclude that Kiene and Argabrite continued to call Rafiq "Taliban" and refer to him as an "Arab" up until his date of termination and thus, that some acts of harassment took place within 300 days of the date on which Rafiq filed his EEOC charge.

In addition, we disagree with the district court that the October 26, 2002 confrontation could not be considered an incident of harassment based on religion or national origin. When evaluating a motion for summary judgment, all reasonable inferences must be drawn in the non-movant's favor. Hockman, 407 F.3d at 325. Here, although Argabrite did not specifically refer to Rafiq's religion or national origin during the incident, considering the context of Argabrite's pattern of harassment based explicitly on religion and national origin, coupled with his practice of banging on the glass partition to allegedly startle Rafiq, a factfinder could easily infer that Argabrite's actions on October 26, 2002 were also taken on account of Rafiq's religion and national origin. See Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ("The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.").

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