Memon v. Consulting

• Decision Date: 17 March 2011
• Docket Number: Civil Action No. H–09–2766.
• Citation: 111 Fair Empl.Prac.Cas. (BNA) 1619,779 F.Supp.2d 619
• Parties: Mohammed Zakaria MEMON, Plaintiff,v.DELOITTE CONSULTING, LLP, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

779 F.Supp.2d 619

111 Fair Empl.Prac.Cas. (BNA) 1619

Mohammed Zakaria MEMON, Plaintiff,

v.DELOITTE CONSULTING, LLP, et al., Defendants.

Civil Action No. H–09–2766.

United States District Court, S.D. Texas, Houston Division.

March 17, 2011.

Salar Ali Ahmed, One Arena Place, Houston, TX, for Plaintiff.William John Bux, Locke Lord Bissell and Liddell LLP, Sara Catherine Longtain, Locke Lord, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

Mohammed Zakaria Memon, a naturalized American citizen born in Pakistan, has sued his former employer, Deloitte Consulting, LLP, alleging that he was subject to unfair treatment and then fired because of discrimination on the basis of his race and his religion (Muslim). He also alleges that he was retaliated against for complaining about the discrimination. After discovery, Deloitte moved for summary judgment. (Docket Entry No. 30). Memon responded, (Docket Entry No. 33); Deloitte replied, (Docket Entry No. 36); and Memon filed a surreply, (Docket Entry No. 38). Based on the record; the motion, response, reply, and surreply; and the applicable law, this court denies Deloitte's motion for summary judgment, for the reasons explained below. A status and scheduling conference is set for April 8, 2011 at 8:30 a.m.

I. Background

The factual background is drawn from the extensive summary judgment record. ¹ Memon testified in his deposition about his regular religious observance.² Memon prays five times each day at appointed times. These prayers last approximately five minutes. Memon also performs a ritual cleansing, known as Wazu, before prayer. The cleansing is sometimes referred to as “wudhu” in the deposition transcripts. Memon explained in his deposition that he must wash his face, wash his hands and arms up to his elbows, rub his hair with his wet hands, and wash his feet up to his ankles, but he need not remove clothing. (Docket Entry No. 33 at 13–15). Memon wears a long beard as part of his religious practice.

Memon began his career as an SAP professional in May 1997. SAP is an enterprise-management software that many businesses use to make their operations more efficient. Memon worked for different companies, sometimes as an employee and other times as an independent contractor. He was not fired from any position before he worked at Deloitte.

Memon interviewed with Deloitte for a job as a consultant in the summer of 2007. One interviewer concluded as follows:

[Memon] comes across as a very personable consultant. He has a deep desire to support clients and be engaged in problem solving. He would definitely fit in the Specialist Path and would recommend a Lead position. A senior specialist level was indicated on the Candidate Summary Form. Whilst that may be appropriate to allow time to develop Deloitte Consulting Network and Deloitte Consulting Toolset I would be concerned that his level would be higher.

(Docket Entry No. 33, Ex. 6 (emphasis in original)).

Deloitte hired Memon to work in the Houston office as part of the Enterprise Applications Group beginning on August 13, 2007. As a lead consultant, Memon's salary was $138,000 per year plus benefits. (Docket Entry No. 30, Ex. C, ¶¶ 3–4). Anthony Perroni, a Deloitte principal, was assigned as Memon's counselor, which involved giving career advice and reviewing Memon's performance with him. ( Id., Ex. A, ¶ 2). Susan Sparkman, a Dallas-based human resources employee, was in charge of assigning Memon to specific projects. (Docket Entry No. 33 at 85).

Memon's first assignment was with Lockheed Martin and ran from August 20 to September 21. (Docket Entry No. 33, Ex. 3). He received a generally positive evaluation on a form called a Project Development Assessment. ( Id.). Under “Strengths,” his supervisor listed “Collaborative demeanor” and “Good background and experience.” ( Id.). Under “Development Opportunities,” the supervisor listed “Focus on follow through,” “Focus on planning and scheduling his work to meet deliverables,” and “Continue to work on presentation skills.” ( Id.). The Project Development Assessment noted that Memon had “achieved [his] Goals” and rated him at a level 3, meaning that he met expectations. ( Id.). In the narrative portion of the Assessment, Memon's supervisor wrote, “Mohammed has a strong understanding of the SAP product. He needs to focus on improving his communication, facilitation and team work skills. Thank you for all your hard work on the LM Aero D2 project.” ( Id.).

After the Lockheed Martin project, Memon spent approximately one month “on the bench,” Deloitte's term for periods when a consultant is not assigned to a project. Deloitte's written policy states that employees on the bench are expected to be in the office doing self-training or participating in training activities, networking with supervisors, and engaging in local office initiatives, among other tasks. (Docket Entry No. 30, Ex. C–5). Memon testified that he rarely went into the Houston office while he was on the bench, because he found there was nothing there for him to do. (Docket Entry No. 33, Ex. 2 at 61). He asserts that no one complained to him about his absences while he was on the bench after the Lockheed Martin project ended. ( Id. at 339). Memon was at his home in Sugar Land, Texas when he received word about his next assignment at Wal–Mart's Bentonville, Arkansas headquarters.

Memon worked on the “PROFIT” project at Wal–Mart headquarters in Bentonville beginning in early November 2007. The project's goal was to improve Wal–Mart's procurement programs for nonretail items. Memon worked on the computer aspects. (Docket Entry No. 33, Ex. 2 at 125). David Furgason was Memon's direct Deloitte supervisor on the project; Allan Stone, Wal–Mart's Director of Profit Enterprise Asset Management, was Wal–Mart's primary manager.

Memon worked on the PROFIT project until February 1, 2008. Memon alleges that he was “rolled off”—Deloitte's term for a reassignment—because of his Muslim faith. Furgason asserts that he removed Memon from the project because of poor performance.

It is unclear whether Memon was a “team lead” or a “team member” when he began working on the PROFIT project. Memon was initially asked to lead workshops with Wal–Mart personnel to determine the company's requirements. Memon testified that he led two or two-and-a-half workshops in November, after which Furgason placed him in a support role. (Docket Entry No. 33, Ex. 2 at 360–61). In that role, Memon and another consultant took notes while Conrad Mishan, a London-based Deloitte consultant working on the project, led the meetings. ( Id.). Memon argues in his response to Deloitte's summary judgment motion that he was demoted from team lead to team member, but in his deposition he denied that he was ever the team lead. (Docket Entry No. 33, Ex. 2 at 157). A March 3, 2008 e-mail from Rhonda Shively, a Deloitte human resources employee, to Perroni, the Houston Deloitte principal assigned to be Memon's counselor, characterized the change in duties on the PROFIT project as a “demotion from team lead to team member.” (Docket Entry No. 33, Ex. 2 at 16). It is unclear, however, that there was any change in Memon's duties other than no longer leading the workshop meetings.

While at Wal–Mart, Memon continued his daily prayers and Wazu. He performed the cleansing in a Wal–Mart corporate headquarters office bathroom and the prayers in various places around the office building. Furgason testified that he noticed that Memon arrived at work later and left earlier than his coworkers on the PROFIT project and asked for an explanation of the arrival and departure times. (Docket Entry No. 30, Ex. F. at 32). Memon told Furgason that he had to pray. ( Id. at 32–33). Furgason did not know that Memon was a devout Muslim before Memon arrived in Arkansas. (Docket Entry No. 30, Ex. F at 32). Before working with Memon, Furgason “ha[d] not worked with a ... man or woman who is a Muslim and did not understand, did not know the prayer requirements.” ( Id. at 32). Furgason testified that he “was concerned about learning what the practice was and trying to address it with [Memon to] make accommodations for him and for that practice.” ( Id.). Furgason testified he and Memon had a mid-November meeting at which they agreed that Memon could arrive late and leave early to perform his prayers. ( Id. at 34).

Furgason asserts that during this time, he concluded that Memon was not ready to lead the workshops. (Docket Entry No. 30, Ex. F. at 30, 36). On November 14, Paul McGovern, a Deloitte principal, had written to Furgason proposing adding another Deloitte consultant, Mohanan Menon, to the PROFIT team. (Docket Entry No. 30, Ex. B.1). Furgason responded that he had already concluded he would “likely ... have to make some changes to the current procurement team structure.” ( Id.). In an e-mail sent later that same day, Furgason told McGovern that Memon was “not the strong lead I had hoped he would be.” ( Id.). Early the next morning, McGovern asked Furgason in an e-mail if Memon, referred to as “MZ,” was “a keeper as a team member.” ( Id.). Furgason responded:

MZ is a keeper from the team member perspective, but he is not a keeper for the team lead role. He does not have interpersonal skills required of a team lead, does not have the presence of a team lead, but is a good hands-on-keyboard type which is consistent with his pre-Deloitte Independent experience.

I am going to have a talk with him regarding his adherence to work hours and the fact that while I respect his religion, I have to be respectful of the client and our work hours. He is a Muslim and goes to prayer multiple times per day on site as well as before and after work .... this is one of the stickier situations I have had and would look for your advice and counsel.

(Docket Entry No. 33, Ex. 10). McGovern answered late that night: “Respect his [ ]religion, coac[h] him and find someone else...