IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
      ______________________________________________________                                                        

                           No.05-21090
      ______________________________________________________                                                        

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

               Plaintiff-Appellant,

v.

WC&M ENTERPRISES, INC.,

               Defendant-Appellee.
      ______________________________________________________                                                                                                              

         On Appeal from the United States District Court
                for the Southern District of Texas
      ______________________________________________________                                                                                                              

               REPLY BRIEF OF THE EQUAL EMPLOYMENT
                      OPPORTUNITY COMMISSION
      ______________________________________________________                                                                                                              

RONALD S. COOPER         
General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel

VINCENT J. BLACKWOOD
Assistant General Counsel

SUSAN L.P. STARR
Attorney

EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION
1801 L Street N.W., Room 7042
Washington, D.C. 20507 
(202) 663-4727

                        TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
ARGUMENT
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

                       TABLE OF AUTHORITIES

                          FEDERAL CASES

Burlington Northern and Santa Fe RR Co. v. White, ___ U.S. ___, 126 S. Ct.
2405, 2415 (2006). . . . . . . . . . . . . . . . . . . . . . . .7

Harris v. Forklift Sys.,  Inc., 510 U.S. 17 (1993) . . . .5-6, 11

Jones v. Robinson Property Group, L.P., 427 F.3d 987, 993 (5th Cir.  2004)9

Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 573 (5th Cir. 2002)6

Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998)7, 11, 13

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) 16-18

                    STATUTES & REGULATIONS 
                                
Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.passim

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
      ______________________________________________________  

                          No. 05-21090  
      ______________________________________________________  

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

               Plaintiff-Appellant,

v.

WC&M ENTERPRISES, INC.,

               Defendant-Appellee.
      ______________________________________________________  

         On Appeal from the United States District Court
                for the Southern District of Texas
      ______________________________________________________  

               REPLY BRIEF OF THE EQUAL EMPLOYMENT
                      OPPORTUNITY COMMISSION
      ______________________________________________________  
                                 
                           INTRODUCTION

     In our opening brief, we argued that the district court erred in granting
summary judgment and dismissing this Title VII enforcement action because there
is sufficient evidence to support a finding that WC&M violated Title VII by
subjecting Mohommed Rafiq to a hostile work environment on the basis of his
religion and national origin.  We detailed the undisputed evidence that both a
manager and a co-worker subjected Rafiq to taunting actions and derogatory
comments about his religion and national origin on almost a daily basis beginning
around September 11, 2001, and continuing to the end of his employment in
October 2002.  We argued that, under the standard set out by the Supreme Court,
this abusive treatment was sufficiently pervasive to constitute a hostile work
environment.  We noted that the district court failed to analyze the evidence under
the correct legal standard because of its erroneous view that harassment is not
actionable under Title VII unless it adversely affects the employee's job
performance, and its incorrect conclusion that there is no evidence that Rafiq's
sales suffered as a result of the harassment.  We also argued that, contrary to the
district court's ruling, Rafiq's charge was timely filed because there is evidence
that acts contributing to the hostile environment continued through the last day of
Rafiq's employment.
     In its brief as appellee, WC&M advocates the same legal standard advanced
by the Commission  which was not followed by the district court  and does not
dispute that the record contains the evidence of harassment cited in the
Commission's brief.  Instead, the company attempts to defend the district court's
judgment by analyzing the evidence out of context, by quibbling about the
significance of certain events, and by citing conflicting evidence on several points. 
At best, this approach serves to confirm that there are material factual disputes that
must be resolved by a jury.  In addition, WC&M advances several new arguments
that were not made in district court and that were not ruled on by the district court. 
We file this brief in reply to clarify any confusion that may result from WC&M's
arguments.
                             ARGUMENT
I.   THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT
     WC&M SUBJECTED RAFIQ TO A HOSTILE WORK ENVIRONMENT
     BASED ON HIS RELIGION AND NATIONAL ORIGIN
     In our opening brief, we identified evidence that, if credited, would support
a finding of a hostile work environment cognizable under Title VII.  We pointed to
undisputed evidence of almost daily reference to Rafiq as "Taliban" and "Arab";
statements such as, "why don't you go back to where you came from since you
believe what you believe" (R24, Exh. 7 at 1, RE Tab 12); comments about Rafiq's
religiously-dictated dietary laws and prayer rituals that Rafiq viewed as derisive
(R24, Exh. 2 at 176, RE Tab 8); and a written reprimand chastising Rafiq for
"acting like a Muslim extremist and very militant" (R24, Exh. 3, RE Tab 9).  We
noted evidence that this relentless verbal harassment was compounded by physical
harassment by a manager who routinely punched and touched Rafiq and banged
on the glass partition to Rafiq's office every time he walked by in an effort to
startle Rafiq.  R24, Exh. 2 at 144, RE Tab 8.  Finally, we noted, the record
demonstrates that WC&M ignored Rafiq's frequent complaints, never conducted
an investigation, and made no effort to stop the harassment.  R24, Exh2 at 47, RE
Tab 8.
     We noted that the Supreme Court has held that subjecting an employee to
harassment based on religion or national origin violates Title VII where the
harassment is sufficiently severe or pervasive to alter the victim's conditions of
employment.  Applying this standard, we argued, a reasonable jury could find that
WC&M violated Title VII by requiring Rafiq to work in a hostile environment
based on his religion and national origin.  EEOC br. at 17-22.
     In response, WC&M does not challenge the legal standard advanced by the
Commission; in fact, the company advocates the same standard in its brief.  
WC&M br. at 24-26.  Moreover, with one minor  and incorrect  exception,<1>
WC&M does not dispute the evidence we cited of frequent harassing comments
and physical assaults, and of Rafiq's repeated, but futile, complaints to
management.  Instead, WC&M broadly asserts that, "[e]ven construing these facts
in favor of EEOC, as this Court must do, it is clear that the District Court held
correctly that any harassment of Rafiq was not sufficiently severe or pervasive to
alter the terms and conditions of his employment."  WC&M br. at 28.  This is a
misleading characterization of the district court's decision.  As we noted in our
opening brief, the district court based its holding that the evidence was insufficient
to support a hostile environment claim solely on its conclusion that the harassment
did not adversely affect Rafiq's sales.  R37 at 2, RE Tab 4 ("Even if Rafiq could
have proved that the harassment occurred, he has not shown that it was so severe
that it kept him from doing his job.").   The district court did not find  and
WC&M did not argue below  that the harassment was in any other respect
insufficiently severe or pervasive to alter the terms and conditions of Rafiq's
employment.  In any event, other than vague generalities, the company offers no
principled argument to support its assertion that a reasonable jury could not find a
hostile work environment.
     1.  Initially, WC&M argues that the repeated references to Rafiq as
"Taliban" or "Arab" do not support the Title VII claim because "there is no
evidence that these comments were directed at Rafiq's religion and national
origin."  WC&M br. at 23.  WC&M argues for the first time in its appellate brief
that Kiene and Argabrite's reference to Rafiq as "Taliban" cannot be construed as
harassment based on Rafiq's religion.  Id. at 28.  Even if this Court would consider
this belated argument, a reasonable jury could conclude that the epithet "Taliban"
was a derogatory reference to Rafiq's Muslim religion.  This is particularly true
when the use of the epithet is viewed in the context of comments explicitly related
to Rafiq's religious beliefs, including: a written reprimand calling Rafiq a
"Muslim extremist" (R24, Exh. 3, RE Tab 9); comments ridiculing Rafiq for
believing "what you believe" (R24, Exh. 7 at 1, RE Tab 12); Kiene's statement to
Rafiq that "we don't want to hear about your religious beliefs" (id.); and taunting
comments about Rafiq's dietary restrictions and prayer habits, both of which are
directly tied to the practice of his Muslim faith.  (R24, Exh. 2 at 176, RE Tab 8).<2> 
Cf. Burlington Northern and Santa Fe RR Co. v. White, ___ U.S. ___, 126 S. Ct.
2405, 2415 (2006)  ("Context matters. The real social impact of workplace
behavior often depends on a constellation of surrounding circumstances,
expectations and relationships which are not fully captured by simple recitation of
the words used or physical acts performed.'") (quoting Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998)).
     With respect to the use of the term "Arab," the company questions whether
there is evidence that "Kiene and Argabrite willfully misidentified' Rafiq's
national origin in an effort to link him to those Arabs involved in the September
11, 2001[,] attacks or other acts of violence and terrorism."  WC&M br. at 31; see
also id. ("the record shows that Kiene and Argabrite did not know Rafiq's national
origin").  This response fails for two reasons.  First, it irrelevant whether Kiene
and Argabrite knew that Rafiq was not an Arab when they taunted him with that
term.  As we argued in our opening brief, the district court's decision reflects an
erroneous belief that discrimination against a person because he is foreign does
not violate Title VII unless the discriminator's animus is focused on the specific
nation from which the victim actually comes.  See EEOC br. at 29-31.  WC&M
does not dispute this point in its brief.  Accordingly, a reasonable jury could find
that, in calling Rafiq an Arab, Kiene and Argabrite were harassing him because he
is a foreigner, notwithstanding the fact that he is not Arab, and regardless of
whether the harassers knew his national heritage.  Secondly, as the company
acknowledges, there is evidence that Kiene and Argabrite knew Rafiq was from
India when they called him an Arab.  WC&M br. at 31.  The company, citing to
the same evidence relied on by the Commission,  states, "Rafiq would correct
Kiene and Argabrite when they referred to him as an Arab, and told them he was
from India."  Id.  Based on this evidence, a reasonable jury could find that Kiene
and Argabrite knew that Rafiq was not Arab and nonetheless continued to call him
"Arab" in an effort to harass him because of his national origin.  See also, R24,
Exh. 2 at 177, RE Tab 8 (Rafiq believed Kiene and Argabrite repeatedly called
him Arab "because the Arabs are the bad guys and they are the ones who's doing
all this 9/11.  So, they would - - my ethnicity, they did not even know what it is. 
But definitely because of my name, Mohommed, they connected me with Arabs all
the time.").<3>
     2.  WC&M also argues that, even assuming that the harassment was based
on Rafiq's religion or national origin, "EEOC's claim fails because it cannot show
that this harassment was sufficiently severe or pervasive."  WC&M br. at 32. 
Although WC&M made a similar general statement in the district court, the
company's only specific challenge to the sufficiency of the evidence was that there
is no evidence that Rafiq's sales were affected by the harassment.  See R28 at 2-3
(WC&M First Amended Motion for Summary Judgment) (court should enter
summary judgment "since no genuine issue of material fact remains as to at least
one element of the EEOC's hostile work environment claim," proof that the
harassment "caused Rafiq's sales commissions to decrease").   Similarly, the only
basis the district court gave for concluding that the harassment of Rafiq was not
severe or pervasive enough to constitute a hostile environment is the lack of
evidence of an adverse effect on Rafiq's work performance.  R37 at 2, RE Tab 4.
     In our opening brief, we argued that the district court's assumption that
there could not be a hostile work environment in this case unless Rafiq's sales
suffered is legally incorrect.  EEOC br. at 22-25.  As we pointed out, the Supreme
Court has expressly held that economic harm is not required to establish a Title
VII harassment claim.  See Harris v. Forklift Sys.,  Inc., 510 U.S. 17, 22 (1993)
("even without regard to [] tangible effects, the very fact that the discriminatory
conduct was so severe or pervasive that it created a work environment abusive to
employees because of . . . religion or national origin offends Title VII's broad rule
of workplace equality.").   We argued that, if measurable impact on job
performance was required to demonstrate hostile work environment, employees
capable of successfully performing in the face of harassing conduct would be
effectively penalized for their fortitude.  EEOC br. at 23-24.  WC&M does not
dispute our legal argument; instead the company insists that "the only evidence
EEOC offered that the harassment was sufficiently severe or pervasive to alter the
terms and conditions of Rafiq's employment" was "Rafiq's testimony that [he] lost
about five or six car sales each month from September 11,2001 to the end of his
employment."  WC&M br. at 32 & n. 10.  This is not true.
     Although the EEOC introduced evidence regarding Rafiq's sales to
establish one way in which Rafiq was harmed by the harassment, we never
suggested that this was the only evidence that the harassment was pervasive
enough to alter the terms and conditions of Rafiq's employment.  To demonstrate
that WC&M "created a work environment abusive to employees because of their
. . . religion[]or national origin" (Harris, 510 U.S. at 22), we also offered evidence
of the adverse physical and emotional toll the relentless harassment took on Rafiq. 
See EEOC br. at 9-10.  We argued in our opening brief that, "given the atmosphere
of fear and suspicion in the months immediately following the September 11
terrorist attacks, the constant reference to Rafiq as Taliban' and Arab' could be
viewed as particularly hostile and threatening," thereby permitting a reasonable
jury to conclude that "the real social impact' (Oncale, 523 U.S. at 81) on Rafiq, a
foreign-born Muslim, of being constantly called names associated with
perpetrators of terrorism . . . was to create a hostile work environment."   EEOC
br. at 20-21.
     In its brief, WC&M attempts to minimize the impact of the harassment by
divorcing some of the comments from the context in which they were made.  In so
doing, it fails to construe the evidence in the light most favorable to the EEOC. 
For example, WC&M states that the specific words said to Rafiq on September
11 "hey, here's Mohammed," and "where have you been"  were benign. 
WC&M br. at 9-10 ("No one made any reference to Rafiq's religion or national
origin.  None of Rafiq's colleagues made any comment that Rafiq had anything to
do with the terrorist attacks.")  In so doing, WC&M ignores context and truncates
the quotes to remove context.  When Rafiq walked in to work on that day,
"managers and co-workers were watching on television the aftermath of the
terrorist attacks on the United States."   Kiene then said, "Hey, there's
Mohommed' in laughing way" and Argabrite said, "Where have you been' in a
very mocking way . . . [a]nd then everybody laughed."  R24, Exh. 2 at 100, RE
Tab 8.  Rafiq testified that, based on the comments and attitude, they were
"implying that Rafiq had participated in some way in the, terroristic [sic] attacks
against the United States.'" Id. at 101.  A reasonable jury could find these words
uttered in this context constituted harassment and had a profound negative impact
on Rafiq.
     Finally, WC&M dismisses evidence of comments and acts which do not
overtly refer to religion or national origin, ignoring the fact that these statements
or harassing acts were perpetrated by persons who were responsible for most of
the harassing comments and behavior directly linked to religion or national origin. 
For example, despite the fact that Argabrite harassed Rafiq daily on the basis of
his religion and national origin, WC&M argues that because Argabrite did not
verbalize some sort of epithet or comment belittling Rafiq because he is Muslim or
from India at the same time he engaged in physically hostile acts, then the physical
harassment is completely divorced from Argabrite's discriminatorily-grounded
hostility toward Rafiq.  WC&M br. at 14 (identifying evidence of physical
harassment), 30 (verbal harassment was "not accompanied by any physical
harassment").  As the Supreme Court cautioned, common sense is critical when
determining whether a hostile work environment exists.  See  Oncale, 523 U.S. at
82 ("Common sense, and an appropriate sensitivity to social context" inform
whether "a reasonable person in the plaintiff's position would find [the work
environment] severely hostile or abusive.").  A reasonable jury could conclude that
these actions were motivated by the same animus manifested by Argabrite's
comments about Rafiq's religion and foreign birth, particularly in the absence of
any other explanation for Argabrite's hostility.
     3.  Although evidence of lost sales is not required to sustain the EEOC's
hostile work environment claim, we argued in our opening brief that there is
sufficient evidence to support a finding that Rafiq's sales performance suffered as
a result of the harassment.  EEOC br. at 25-27.  In response, WC&M once again
misstates the evidence and distorts the EEOC's argument.  The company insists
that the only evidence of lost sales is Rafiq's testimony that he lost five to six sales
a month beginning in September 2001 (WC&M br. at 32), and argues that this
assertion is belied by the evidence that "Rafiq's sales increased after September
2001, and remained well above the average of all new car sales persons for the
remainder of his employment."  WC&M br. at 34.  However, the Commission did
not argue that Rafiq's sales began to suffer immediately after the harassment
began in September 2001.  Rather we argued that, as the company's sales records
reflect, Rafiq's earnings remained strong during the first few months of the
harassment, but declined steadily during the remaining months of his employment. 
EEOC br. at 25.  We noted that this pattern was consistent with Rafiq's testimony
that the harshness and severity of the harassment "gradually built.  It didn't happen
one day.  It just gradually built, kept on building."  R24, Exh. 2 at 164, Tab 8.<4>
     The company also criticizes the Commission's reliance on Phillip Gemer
and Matthew Kiene<5> as comparators because, according to WC&M, "both worked
for Streater-Smith much longer than Rafiq."  WC&M br. at 33. While this is true,
their overall experience in new car sales is nonetheless comparable.  See EEOC br.
at 10, n.4.  Furthermore, the Commission did not argue that the similarity between
the experience of Rafiq and Gemer and Kiene supports the conclusion that their
sales would have been the same but for the harassment.  We offered the
comparative evidence only for the proposition that Rafiq would have had a similar
pattern of sales to Kiene and Gemer.  Accordingly, the fact that they had slightly
more experience than Rafiq is not significant.
     We argued in our opening brief that, since Gemer and Kiene are the only
two other sales persons who worked regularly throughout the period of Rafiq's
harassment, a comparison between the pattern of their sales and Rafiq's is the
most probative evidence of the effect of the harassment on Rafiq's earnings.  The
company responds that additional comparators exist, pointing to evidence that the
tenure of four sales persons (whose qualifications and experience are not
addressed in the record) "overlapped" with Rafiq's.   WC&M br. at 20, 33. 
However, there is no evidence that any of the four worked more than three months
during that period.  Moreover, the earnings of Wesley Coleman, the only one of
the four who worked each of the three months, followed a similar pattern to those
of Gemer and Kiene.  All three salespeople, Coleman, Gemer and Kiene started off
with earnings weaker than Rafiq's but by June 2002, their sales grew
comparatively stronger.  R33 at 5-41.
II.  RAFIQ'S CHARGE WAS TIMELY BECAUSE IT WAS FILED WITHIN
     300 DAYS OF ACTS CONTRIBUTING TO THE HOSTILE WORK
     ENVIRONMENT CLAIM
     The Commission argued in its opening brief that "there is ample evidence
that Rafiq was subjected to harassment contributing to the claim' of hostile work
environment within the charge filing period."  EEOC br. at 32 (quoting National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18, 122 (2002)).   We pointed
to undisputed evidence that the verbal harassment continued to the last day of
Rafiq's employment and that there was at least one incident less than 300 days
before Rafiq filed his charge where Argabrite, one of the perpetrators of the verbal
harassment, banged on Rafiq's office partition.
     In response, WC&M argues that the district court correctly ruled that this
evidence is insufficient because it was not "objective."  WC&M br. at 35-36.  Like
the district court, the company provides no explanation of what it means by
"objective" evidence, and no support for the proposition that unequivocal, and
undisputed, testimony that the harassment at issue continued until the last day of
Rafiq's employment   which was less than 300 days before he filed his charge 
is not sufficient to support a finding that acts contributing to the hostile work
environment occurred within the charge-filing period.
     The company, focusing on Rafiq's testimony that "this went on all the way
to the last day," suggests that the evidence is too "vague."  WC&M br. at 38. 
However, in context, there is nothing vague about Rafiq's testimony. 
Furthermore, the company ignores the following statement in Rafiq's affidavit,
which removes any possible ambiguity: "I told Argabrite and Kiene that I did not
like being called Taliban and I requested them to stop, but they did not.  These
comments based on my national origin and religion - - including Why don't you
go back to where you came from' - - persisted through the end of my
employment."  R24, Exh. 1 at 2, Tab 7.
     Contrary to the company's argument, nothing in Morgan suggests that
Rafiq's testimony is insufficient to support a finding that the harassment continued
into the limitations period.  The Supreme Court stated simply, "It does not matter,
for purposes of the statute, that some of the component acts of the hostile work
environment fall outside the statutory time period.  Provided that an act
contributing to the claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the purposes of
determining liability."  Morgan, 536 U.S. at 117.  Nowhere in the decision does
the Court limit the types of evidence which can be relied on to show that an act of 
harassment "contribut[ed]" to a hostile environment claim.<6>

                            CONCLUSION
     For the foregoing reasons, the district court's order granting summary
judgment to the Defendant should be reversed and this case should be remanded
for further proceedings.                                    
                              Respectfully submitted,
                              RONALD S. COOPER
                              General Counsel 

                              CAROLYN L. WHEELER
                              Acting Associate General Counsel

                              VINCENT J. BLACKWOOD
                              Assistant General Counsel

                              
                                                                                   
                              SUSAN L.P. STARR
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                              COMMISSION
                              1801 L Street N.W., Room 7042
                              Washington, D.C. 20507

            Certificate of Compliance with Rule 32(a)
     1.  This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 4043 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
     2.  This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Word Perfect 9
in font size 14 Times New Roman.

                                                      
Susan L.P. Starr
Attorney
Equal Employment Opportunity Commission
Plaintiff-Appellant

Dated: August 31, 2006

                      CERTIFICATE OF SERVICE

     I hereby certify that two paper copies and one electronic copy of the 

foregoing brief were sent by first class mail on this the 31st day of August

 2006, to the following counsel of record:

James Patrick McInerny
Phillips & Aker
3200 Southwest Freeway
Houston, TX 77027-7523

                              

                                                    
Susan L.P. Starr
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
     COMMISSION
1801 L Street N.W., Room 7042
Washington, D.C. 20507
(202) 663-4727
                                                       

August 31, 2006

************************************************************************
<<FOOTNOTES>>

<1> WC&M argues that the Commission incorrectly claims that Argabrite broadcast 
a Taliban joke about Rafiq to the sales floor over the public address system.  
WC&M br. at 12, n.3.  According to the company, The joke was played through a 
computer and heard only by the employees who were present in the office.  Id.  
This ignores Rafiqs testimony that Argabrite [presented] a joke about me . . . 
to the whole sales floor in public on a speaker.  R24, Exh. 2 at 110, RE Tab 8.  
There is no support in the record, including the pages cited by WC&M, for the 
companys assertion that the comments were only heard by the employees who were 
present in the office.

<2> WC&M characterizes the statements regarding Rafiqs diet and prayer, as mere 
question[s], and asserts that there is no evidence that these questions were 
taunts.  WC&M br. at 13 (citing R24, Exh.2 at 176, RE Tab 8).  However, WC&Ms 
record citation provides the support for the Commissions allegation that Rafiq 
was taunted.  In response to counsels question as to whether Kiene and Argabrite 
would ask you questions about your culture and religion, Rafiq responded that 
they made their remark[s] . . . in a taunting way.  Id.

<3> In its Statement of Facts, WC&M recounts evidence suggesting that Kiene was 
driven to harass Rafiq by intense competition between the two men.  WC&M br. at 
12-13.  Even if true, this is beside the point.   As this Court has recognized, 
"epithets undoubtably demonstrate racial animus."   Jones v. Robinson Property Group, 
L.P., 427 F.3d 987, 993 (5th Cir. 2004).   That Kiene may have been inspired to 
express his discriminatory animus toward Rafiq by his feelings of competitiveness 
does not lessen the fact that his harassment of Rafiq was based on Rafiqs religion 
and national origin.

<4> Similarly, contrary to WC&Ms assertion, the fact that Rafiq was a top sales 
performer is not incompatible with evidence demonstrating that his strong performance 
was negatively impacted over time by the continuous and pervasive harassment.  WC&M 
br. at 10 n.1 (EEOC wants to have it both ways by stating that Rafiqs sales 
performance was above average[] while simultaneously contending that Rafiq lost 
sales commissions because of the alleged discrimination.).

<5> WC&M criticizes the Commission for failing to provide a chart in our opening 
brief documenting Kienes sales compared with Rafiqs and Gemers.   WC&M br. at 
34 n. 11.   As explained in our brief, Kienes earnings records during that period 
is spotty.  EEOC br. at 11-12.  Despite the lack of records for some months, the 
undisputed evidence that Kiene harassed Rafiq almost every day indicates that he was 
working as a sales person during each month at issue.  For that reason, although it 
was not possible to compile a complete chart reflecting Kienes earnings during that 
period, the evidence as a whole supports EEOCs position that Kiene was a proper 
comparator.

<6> WC&M repeats its argument that Argabrites banging on the glass  partition of 
Rafiqs office cannot be part of the hostile environment because there is no 
evidence that Argabrite banged on the window . . . because of his hostility to 
Rafiqs religion or national origin.  WC&M br. at 39.  For the reasons discussed 
supra, at pp. 12-13, a reasonable jury could find that Argabrites physical 
intimidation of Rafiq was motivated by the same discriminatory animus expressed in 
his verbal harassment.