• •
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

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SOUTHERN [liS, RIO Or TEXAS ~iL.-.L.U
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EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

WC&M ENTERPRISES, INC.,

§

d/b/a STREATER-SMITH HONDA,

§

§

Defendant.

§

CIVIL ACTION NO.
H-04-3372
JURY TRIAL DEMANDED

ORIGINAL COMPLAINT OF THE
UNITED STATES EOUAL EMPLOYMENT OPPORTUNITY COMMISSION

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of

the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of national

origin and religion, and to provide appropriate relief to Mohommed Rafiq ("Rafiq"), who was

adversely affected by such practices. As alleged with greater particularity in paragraphs 9-11, below,

WC&M Enterprises, Inc. ("Streater-Smith"), subjected Rafiq to an unlawfully hostile work

environment, based upon his national origin, East Indian, and his religion, Islam.

JURISDICTION AND VENUE

1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C §§451, 1331, 1337,1343,

and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) of Title VII

ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1) and (3) ("Title VII") and

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Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the
jurisdiction ofthe United States District Court for the Southern District ofTexas, Houston Division. Venue is appropriate in this court.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission ("EEOC" or "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(1)(1) and (3) of Title VII, 42 U.S.c. §§ 2000e-5(1)(I) and (3). 4. At all relevant times, Defendant WC&M Enterprises, Inc., d/b/a Streater-Smith Honda ("Streater-Smith"), has continuously been a Texas corporation doing business in the State of Texas and the City of Conro,e, and has continuously had at least fifteen (15) employees. StreaterSmith may be served with process by serving its registered agent, Steven G. Jackson, 311 Interstate 45 South, Conroe, Texas, 77301. 5. At all relevant times, Streater-Smith has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution ofthis lawsuit, Rafiq filed a charge with the Commission alleging violations of Title VII by Streater-Smith. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least September 2001, Streater-Smith has engaged in unlawful employment
2

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practices at its Conroe, Texas, facility, in violation ofSection 703(a) ofTitle VII, 42 U.S.C. § 2000e2(a).
8. Defendant has more than 100 employees. 9. On May 11,2001, Rafiq, a Muslim ofIndian origin, began working for Streater-Smith as a salesperson. After September 11, 2001, employees, including a couple of supervisors, frequently would refer to Rafiq as "Taliban," and made other remarks about Rafiq's religion and ethnic ancestry. Although Rafiq complained about these comments to the General Sales Manager, Richard Burgoon, as well as to those who made the comments, the remarks continued until the end of October 2002, when Streater-Smith fired ,Rafiq, despite Rafiq's above-average job performance. 10. Approximately two weeks before Defendant fired Rafiq, Sales Manager Jerry Swigart referred to Rafiq as a "Muslim extremist" after Rafiq questioned why attendance at a United Way meeting was mandatory. Streater-Smith then issued a written Employee Warning Notice which cited the mild-ma~ered Rafiq for "acting like a Muslim extremist and very militant." As documented in the Employee Warning Notice, Swigart also told Rafiq that "it didn't look like they could work together" because of Rafiq's alleged "militant stance." Swigart-had previously told Rafiq, "This is not your Islamic state or your India, where you came from," and Rafiq had been asked by a colleague "Why don't you go back to where you came from since you believe what you believe?" 11. Streater-Smith never conducted an investigation of Rafiq' s complaints of unlawful harassment. At no time did Defendant's management make any effort to stop the harassment. In response to his efforts to end the hostile environment, Rafiq was told merely to let the harassing comments "go through one ear and out the o~er," and was counseled "Don't let it bother you." 12. The effect of the practices complained of in paragraphs 9 - 11, above, has been to
3

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deprive Mohommed Rafiq of equal employment opportunities and otherwise adversely affect his

status as employee, because of his national origin and religion.

13. The unlawful employment practices complained of in paragraphs 9-11 were

intentional.

14. The unlawful employment practices complained of in paragraphs 9-11, were done

with malice or with reckless indifference to the federally protected rights of Mohammed Rafiq.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A.

Grant a permanent injunction enjoining Streater-Smith, its officers, successors,

assigns and all persons in active concert or participation with it, from maintaining a religiously and

ethnically hostile work environment, and any other employment practice which discriminates on the

basis of national origin or religion.

B. Order Defendant to institute and carry out policies, practices and programs which

.

.

provide equal employment opportunity for Muslims and East Indians, and which eradicate the effects

of its past and present unlawful employment practices.

C. Order Defendant to make whole Mohommed Rafiq by providing appropriate backpay

with prejudgment interest, in amounts to be proved at trial, for lost sales commissions resulting from

the discrimination, and other affirmative relief necessary to eradicate the effects of its unlawful

employment practices.

D. Order Defendant to make whole Mohommed Rafiq by providing compensation for

past and future pecuniary losses resulting from the unlawful employment practices described above,

in amounts to be determined at trial.

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E.

Order Defendant to make whole Mohommed Rafiq by providing compensation for

past and future nonpecuniary losses resulting from the unlawful employment practices described in

paragraphs 9 - 11, above, including emotional pain, inconvenience, and humiliation, in amounts to

be determined at trial.

F. Order Streater-Smith to pay Mohommed Rafiq punitive damages for its malicious

and reckless conduct described in paragraphs 9 - 11, above, in amounts to be determined at trial.

G. Grant such further relief as the Court deems necessary and proper in the public

interest.

H. Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

Respectfully submitted,
Eric S. Dreiband General Counsel
James L. Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507

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------- .-

. 80 .-----

Timothy M. Bo ne

Senior Trial A orney

Attorney-in- harge

Texas Bar No. 00793371

Southern Dist. of Texas No. 20023

Equal Employment Opportunity

Commission

1919 Smith Street, 7th Floor

Houston, Texas 77002

(713) 209-3395

(713) 209-3402 [facsimile]

OF COUNSEL:
Jim Sacher Regional Attorney
Rose Adewale-Mendes Supervisory Trial Attorney Equal Employment Opportunity Commission 1919 Smith Street, 7th Floor Houston, Texas 77002

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

Plaintiff,

§

§

v.

§

§

WC&M ENTERPRISES, INC.,

§

d/b/a STREATER-SMITH HONDA,

§

Defendant.

§

CIVIL ACTION NO. H-04-3372 JURY TRIAL

CONSENT DECREE The Equal Employment Opportunity Commission ("Commission" or "EEOC") has alleged that Defendant WC&M Enterprises, Inc., d/b/a Streater-Smith Honda, is liable for national origin and religious discrimination, in violation of Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991. The EEOC's lawsuit alleges that Defendant violated these federal statutes by subjecting Mohommed Rafiq, a Muslim car salesman of East Indian origin, to an unlawful hostile environment at the Streater-Smith Honda dealership. WC&M Enterprises, Inc., d/b/a Streater-Smith Honda denies the allegations of the lawsuit. By this Consent Decree, the parties agree to compromise and settle disputed claims without the necessity for protracted litigation. Neither Streater-Smith's consent to the entry of this Decree, nor any of the terms set forth in it shall constitute or be construed as an admission of any violation of Title VII. The parties stipulate to the jurisdiction of the Court and waive a hearing and the entry of findings of fact and conclusions oflaw .

1

It is therefore ORDERED that:

1. This Consent Decree is entered in full and complete settlement of any and all

claims arising out of or contained in this lawsuit, Civil Action No. H-04-3372, and in EEOC

Charge No. 330-2003-04006.

2. WC&M Enterprises, Inc., d/b/a Streater-Smith Honda ("Streater-Smith"), agrees

that it will not engage in any employment practices which violate Title VII by unlawfully

discriminating against any individual because of such individual's national origin or religion.

3. Streater-Smith agrees that it will not retaliate against any individual who opposes any

practice made an unlawful employment practice by Title VII, or against any individual who has

provided testimony or evidence related to this lawsuit or to the investigation of EEOC Charge No.

330-2003-04006.

4.

Within ten (10) days after entry of this Consent Decree, a non-discrimination notice

will be posted at the Streater-Smith automobile dealership located at 3331-45 South, Conroe, Texas

77301, for a period of two (2) years after the entry of this Consent Decree. A copy of this notice is

attached hereto as Exhibit "A." The notice will be posted in a location, to be agreed upon by the

parties, which is conspicuous and accessible to all employees. Defendant shall designate a manager,

whose name will be provided to the EEOC, who will be responsible for ensuring that the notice

remains posted during the two-year period specified in this paragraph.

5.

While this Consent Decree is in effect, all managers at Streater-Smith dealerships in

Conroe will receive annual training on federal anti-discrimination laws, including Title VII. The

training shall include specific instruction on avoiding unlawful discrimination based on national

origin and religion. Prior to such training session, the Houston District Office of the EEOC shall

receive a copy of the training presentation outline. EEOC may require that information about the

2

Muslim faith be distributed to attendees of this training, and that this information also be distributed

to new employees of Streater-Smith. Within ten (l0) days after the completion of the training, the

EEOC shall be provided with a statement listing the date on which the training was completed; the

names of all attendees, their job titles, and the dealerships at which they work; and all topics in the

training presentation outline that were covered.

6. Defendant agrees to pay Mohommed Rafiq THIRTEEN THOUSAND FIVE

HUNDRED DOLLARS ($13,500.00). Within ten (10) calendar days from the date of entry of this

Decree, Defendant shall send a check in the amount of$13,500.00 to Mohommed Rafiq. The check

shall be mailed via certified mail, return receipt requested, to Mohommed Rafiq at his home address,

which will be supplied to Defendant by Plaintiff. A copy of the check shall be sent concurrently

to the Commission at the following address: Equal Employment Opportunity Commission, attn:

Timothy M. Bowne, 1919 Smith Street, 7th Floor, Houston, Texas 77002.

7.

Defendant agrees to give Mohommed Rafiq a neutral job reference, confirming

his dates of employment with Streater-Smith. Further, Defendant agrees not to reference any of

the following to any potential employer of Mr. Rafiq: Mr. Rafiq' s charge of discrimination, the

Commission's lawsuit, this Consent Decree entered in the Commission's lawsuit.

8.

Defendant agrees to segregate in a separate, confidential folder all documents related

to Mr. Rafiq' s charge of discrimination and the Commission's lawsuit. These documents shall not

be part ofMr. Rafiq's personnel file.

9. David Streater will provide Mohommed Rafiq with either a written or verbal

statement of regret for any insensitive comments based on his national origin or religion to

which Defendant's management subjected Rafiq during his employment at Streater-Smith.

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10. This Decree ~ remai~n effect for tw~years from the date of signing. During such time, the Court ~1 reta~jurisdiction to assure compliance with this Decree and
to permit entry of ~urther orders or modifications as may be lles@ssafY Sf ft~~H~pri.ate. 11. The parties~bear their own costs and attorney's fees.
Signed <*l. .tl.tb.~is-s-======::-.el:H!ft~y.g.Q~f~_~(!;J.~r:.~if~~.2/-J.7~__,2007. I
4

NoJob Discrimination
I. Streater~Smith Honda is committed to equal opportunity in employment. It will comply with the law in all respects and will not retaliate against employees who have exercised their rights under the law.
2. Federal law requires that employers do not use an employee's or applicant's national origin or religion to affect terms of employment as hiring, compensation, and promotions.
3. An applicant or employee who wishes to complain of illegal discrimination must report it to:
Streater..Smith Controller at (936) 760"'2446, extension 102
Also, employees who think that they have illegally been discriminated against at work can contact:
Equal Employment Opportunity Commission 1919 Smith Street, Houston, Texas, 77002 (713) 209"'3372
David Streater October 15, 2007
This must remain posted until December 3 I, 2009.

 
 E.E.O.C. v. WC & M Enterprises, Inc., Not Reported in F.Supp.2d (2005)

2005 WL 2106090 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WC & M ENTERPRISES, INC., Defendant.
No. Civ.A. H-04-3372. | Aug. 30, 2005.
Attorneys and Law Firms
Timothy M. Bowne, Equal Employment Opportunity Commission, Houston, TX, for Plaintiff.
Mark R. Lapidus, Burck Lapidus et. al., Houston, TX, for Defendant.
Opinion
Opinion on Summary Judgment
HUGHES, J.
1. Introduction. *1 A man says that he was harassed because of his religion and national origin, causing his work performance to suffer. His employer denies that this happened and has moved for summary judgment. It will prevail.
2. Background. WC & M Enterprises, Inc., operates as Streater-Smith Honda, a car dealership. In May 2001, it hired Mohommed Rafiq as a new-car salesman. It fired him seventeen months later in late October 2002.
Rafiq is a Muslim from India. He says that, after the attacks on September 11, 2001, his coworkers and supervisors harassed him because of his national origin and religion. He says that this so rattled him that it made him lose sales.
The Equal Employment Opportunity Commission has sued on behalf of Rafiq. It does not sue for wrongful termination-only for the dealership’s hostile environment causing Rafiq to lose economic opportunity.

After having investigated Rafiq’s claim for one year, the commission brought this suit. It included a claim based on religion and national origin. At no point has it suggested how Rafiq’s having been born in India was the subject of anything.
3. Lost Sales. To prevail on its claim, the agency must show that (a) Rafiq is a member of a protected class, (b) he was harassed because of his national origin or religion, and (c) the harassment caused his employment to be adversely affected. B.T. Jones v. Flagship Int’l., 793 F.2d 714, 719-20 (5th Cir.1986). Rafiq is clearly a member of a protected class. 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.
Rafiq argues that he lost sales because of his co-workers’ hostility toward him at work. Pl.’s Compl. 4. Alhough he could not identify the months when he sold fewer cars than he otherwise would have sold, he estimated that he lost about five or six sales each month after September 11. Depo. of Mohommed Rafiq, dkt. 22, tr. at 159-161. The record contradicts him.
Rafiq’s earnings actually increased in September 2001. Dkt. 30, Ex. B. They dipped in October, but according to Rafiq, everyone’s did because car sales dropped in October. Depo. of Mohommed Rafiq, dkt. 22, ex A, tr. at 159. In November, he more than doubled what he earned in October, earning more than the average. In December, he earned twice the average. From January to October 2002, his earnings were consistently and significantly higher than the average. Even Rafiq’s own witness testified that Rafiq “was an above-average employee because he consistently sold 10 to 12 cars a month.” Dec. of Doug Pack, dkt. 24, ex. 7.
The commission argues that this is the wrong comparison. It says that the court should look at Rafiq’s earnings at the dealership where he now works. There, “in an environment free from the unlawful hostility which had plagued him” at Streater-Smith, Rafiq earned more than $20,000 in the first quarter of this year. Pl.’s Resp., dkt. 32, at 3. The commission says that this is more than 81.5% of his earnings at Streater-Smith for almost the entirety of 2002.
*2 First, isolated incidents of taunting are not a plague; they are an episode. Second, the commission’s arithmetic is wrong. Rafiq earned about $36,000 at Streater-Smith in 2002. If Rafiq earned $20,000 from January to March 2005, that amounts to about a little over one-half of his earnings at Streater-Smith in 2002-not 82%.
1

E.E.O.C. v. WC & M Enterprises, Inc., Not Reported in F.Supp.2d (2005)

Second, Rafiq earned about $14,000 from January to March 2002. This was right after the terrorist attacks when Rafiq has sworn that his sales were declining. The Census Bureau has reported that the volume of sales for new cars in the first three months of 2002 was less than the volume in the first quarter of 2005. U.S. Census Bureau, Service Sector Statistics, Unadjusted and adjusted estimates of monthly retail and food services sales by kinds of business: 2002, 2005. It is reasonable to conclude that Rafiq sold fewer in that market because demand was low. This belies his claim that harassment made his performance suffer, causing him to lose sales.
4. “Analysis.”
A. Top Performers. From the outset of this litigation, the commission argued that Rafiq lost sales absolutely. The court told the dealership to submit a comparison of Rafiq’s sales to the average of the other new-car salesmen. The commission suggested no alternative for examining the data.
When the data showed that Rafiq did not lose sales and that, in fact, his performance far outstripped that of the other salesmen on average, the commission objected. It said that the dealership’s compilation of the data-the bar charts-was inadmissible hearsay. It said this despite having the same documents as the dealership. It even said that the bar charts did not correspond to “any relevant evidence.” Pl.’s Mot. to Strike, dkt. 23, at 1. The charts are entirely relevant. They address the harm that Rafiq said flowed from the harassment-lost sales-and show that his assertions are objectively, patently false. The court overruled the objection.
At a hearing in late April 2005, the commission offered a new objection. This time, it said that the court should compare Rafiq not to the all the other salesmen, but only to Phil Gemmer and Matthew Kiene-salesmen who were top performers like Rafiq. Although this was not the commission’s original position, the court gave the government the opportunity to present its analysis of the data and to supplement its earlier responses to the dealership’s motions for summary judgment. Dkt. 31, Order dated May 25, 2005.
The commission supplemented nothing: it offered no analysis of the new-car salesmen’s data and no comparison of Gemmer’s, Kiene’s, and Rafiq’s earnings. Pl.’s Supp., dkt. 33, at 2. It simply (a) incorporated by reference its earlier responses, (b) dumped dozens of payroll stubs on the court without explaining their significance, and (c) said that Gemmer and Kiene were the only salespeople to have worked continuously in the same months as Rafiq.

In its earlier responses, the commission said that the court should compare Gemmer, Kiene, and Rafiq because they had similar talent and tenure. Pl’s Resp., dkt. 24, at 7; dkt. 29, at 4. This argument is flawed. Gemmer, Kiene, and Rafiq did not have similar tenure. When Streater-Smith hired Rafiq, Gemmer had worked for the dealership for over two years, Kiene for over eighteen months. Rafiq had significantly less tenure than they did. Neither Gemmer nor Kiene is a suitable comparator for Rafiq.
*3 The supplement contradicted those responses. In it, the commission said that the court should compare the men because of only their tenure: they “were the only salespeople to have worked continuously through the same months....” Pl.’s Supp. Resp., dkt. 32, at 2.
The supplement is defective for another reason: its omissions. Gemmer and Kiene were not the only salesmen that worked through the same months as Rafiq. Other salesmen were at the dealership years before Rafiq arrived and remained years after he was fired. These include: Wesley Coleman, Slavko Gligich, Thomas McCarthy, Michael Simpson, and Justin Taylor. Def.’s Resp., dkt. 30, at 3. Gemmer, Gligich, and Simpson are, in fact, still with the dealership. In addition, it ignores two salesmen-Ronald Musslewhite and Doug Pack-who were at Streater-Smith when Rafiq says that the harassment was most unbearable. Most egregious, the commission ignores Thomas Simonds, who, like Rafiq, started working in May 2001 and left in October 2002. Although the commission disputes the data for McCarthy, Simpson, and Gligich, it has not explained why the court should not compare Rafiq to rest of these men.
Nor has the commission explained why the court should look only at sales from April through October 2002. This omits November 2001 through March 2002, when, except for January, Rafiq’s sales were greater than any other new-car salesman, including Gemmer and Kiene. Overall, it seems that the commission has simply picked the months that best serve its purposes, without an eye to the objective truth.
B. Calculations. The commission said that the dealership erred by including Rafiq’s earnings in the calculation for November 2001. It said that Streater-Smith miscalculated the averages for three of the eighteen months-November 2001 and February and June 2002. It also said that the dealership counted in its calculations the earnings of people who were salesmen but who sold no cars.
First, Streater-Smith has shown that it did not include Rafiq’s earnings in the calculation for November 2001. Def.’s Reply, dkt 36, at 3. Next, the dealership
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E.E.O.C. v. WC & M Enterprises, Inc., Not Reported in F.Supp.2d (2005)

recalculated the three months after excluding people who had worked less than one week. Excluding them, Rafiq still earned $4,000 more than the average. Id. at 4. If the dealership excludes the person who worked less than a week from the calculation for June 2002, the average for that month actually drops by $328. June 2002 was one of three months after the attacks when Rafiq earned less than the average, so dropping the new employee’s sales from the calculation actually closes the gap between Rafiq’s sales and the average.
Last, on the people who sold no cars, Streater-Smith explained that they were employees of the company who had taken leaves of absence. Even if the dealership should not have included them in its calculations, the burden is on the government to show how their exclusion would have affected the data. It did not. It merely conjectured that the data “seems incorrect.” Govt. Supp., dkt. 32, at 2. It submitted dozens of payroll stubs without explaining their significance. Data dumps and supposition do not fulfill the government’s responsibility to have investigated facts fully to support its claim.
*4 Rafiq’s sales record belies the claim that his work environment caused him to lose sales; his performance actually improved after the date that the agency said it began to suffer. The agency cannot establish a prima facie case for its claim, and the claim will fail.
5. Anguish. The commission seeks compensatory damages for Rafiq’s anguish. The court ordered Rafiq to say what counseling he had received for it. He testified that he went to see three imams. He also said that his family life suffered, he had trouble sleeping, and the stress of his work situation affected his body. Depo. of Mohommed Rafiq, dkt. 24, tr. at 45-46. He said that he lost thirty pounds and that he was having diarrhea. Rafiq, however, said that he did not really know if it was because of the termination. The doctor seemed to think that it was something that he ate. Id. at 46.
In Texas, anguish is not compensable if a plaintiff does not show that it was so severe that it interrupted his daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). Anguish must be more than worry, anxiety, vexation, embarrassment, or anger. Id. A plaintiff does not have to prove physical manifestation of emotional distress to recover. Krishnan v. Sepulveda, 916 S.W.2d 478, 482 (Tex.1995).
Rafiq did not miss work. His sales increased. He went to the emergency room only once, presumably when he had the stomach flu or food poisoning. Rafiq and his wife never separated or lived apart. Rafiq did not suffer distress so debilitating that it interrupted his daily life.

Whatever anguish he may have suffered is not compensable.
6. National Origin. In his charge with Commision, Rafiq said that he had been discriminated against on the basis of his race and religion. Dkt. 28, ex. E. Curiously, the Commission sued for discrimination on the basis of national origin and religion. It has offered no evidence to support the national-origin claim.
The Commission pleaded that one of Rafiq’s supervisors told him, “This is not your Islamic state or your India, where you came from.” Compl., at 3. Rafiq, however, testified that the supervisor said, “This is not the Islamic country where you came from.” Depo. of Mohommed Rafiq, dkt. 24, tr. at 124. Rafiq mentioned nothing about India.
Rafiq said that, after September 11th, his co-workers-of whom he said, “Everybody was my best friend”-joked and called him Taliban. Rafiq, tr. at 158, He said that his co-workers assumed that he was Arab. Rafiq said that “They didn’t call me Arab.... So, they would-my ethnicity, they did not even know what it is.” Rafiq, tr. at 177. Seconds later, Rafiq said that they called him an Arab.
None of these comments have anything to do with Rafiq’s being from India. For this reason, his discrimination claim based on his national origin will fail.
7. Filing period. On October 16, 2002, the dealership told its employees about a mandatory United Way meeting. Rafiq told his manager, Jerry Swigart, that making him go violated his rights. Their conversation escalated, and Swigart told Rafiq to stop acting like a “Muslim extremist.” The dealership warned Rafiq in writing that day. In the warning, Swigart said that Rafiq was becoming more difficult to work with and more “militant.” Rafiq complained to the commission on August 18, 2003.
*5 A person must complain to the commission about discrimination in his employment within 300 days of an adverse action’s occurrence. 42 U.S.C. § 2000e-5 (e)(1). The dealership says that the warning triggered the running of Rafiq’s 300-day window. Since August 18th is 306 days after October 16th, the dealership says that Rafiq complained six days too late.
The commission responds that, even though Rafiq was reprimanded on October 16, the harassment continued until October 28 when he was fired. According to it, the 300-day window began running on the 28th. The
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E.E.O.C. v. WC & M Enterprises, Inc., Not Reported in F.Supp.2d (2005)

commission is wrong.
The commission has sued for harassment-not wrongful termination. It substantiates the majority of its complaint based on the warning of October 16th-the only official act by the dealership that the commission has offered to substantiate its claim. Alhough Rafiq says that he was harassed for his twelve remaining days at the dealership, this is not enough. The commission must offer objective evidence of conduct that occurred within the 300-day filing period. Because it has not, the case will be dismissed.
The case will also be dismissed because the basis of it-the warning-is not actionable. The commission may sue only for material, conclusive, adverse employment decisions, like a termination, demotion, or pay cut. Bland v. Browner, 1998 U.S. Dist. LEXIS 3032, at *20 (N.D.Ill.1998). Rafiq has suffered none of these; a disciplinary warning is insufficient.
A. Pattern. Nor may Rafiq defeat limitations by arguing that the dealership’s supposed conduct after the warning was part of an pattern of harassment. That theory is available only to a plaintiff who pleads at least one act that occurred within the 300-day filing period. Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir.2001). If he does, he may rely on supporting acts occurring outside the period.
The commission tries to show a pattern of harassment by offering a disciplinary report from October 26. Pl.’s Resp., Ex. 1. That day, the author of the report who was probably the business director, Kevin Argabrite, noticed Rafiq sitting in his office instead of tending to customers. Argabite tapped the support of the glass partition instead of the glass itself, as he says was his custom. In response, Rafiq turned around and hit his fist against the glass. When Argabite confronted him, Rafiq told him, “Go away, boy.”
The commission says that the report tells only one-half of the story. Rafiq testified that, whenever Argabite walked by Rafiq’s office, he banged-not tapped-the glass, said “Got you,” and laughed as he walked away. Rafiq complained to Richard Burgoon, the general sales manager. Pl.’s Resp., Ex. 2, at 146-147. Rafiq also said that Argabite came up to him later, put his finger in his face, and told him, “I’m the manager, and I can do whatever I feel like. You’re going to listen to me.... I’m your manager. You work. You report to me and you don’t tell me what to do and what not to do.” Id. at 149.
*6 Even taking Rafiq’s version as true, he has not shown that the exchange was motivated by hostility toward Rafiq based on his origin or religion. It is not harassment for a

manager to tell employees to work. It is also not harassment for a manager to tell an employee that he will tolerate no further insubordination. Either version has to do with Rafiq’s performance, not his religion.
Last, Rafiq has offered no evidence that Argabite did not tap on the partition of other salesmen, too. At first, he testified that he did not know if Argabite tapped on other partitions. When pressed, he said, yes, he was the only one to whom Argabite did this. Depo. of Mohommed Rafiq, dkt. 24, tr. at 144-145. These contradictory accounts establish no fact. The Commission has not shown that Argabite singled out Rafiq-either because of his religion or national origin.
B. Waiver. The commission argues that the dealership raised the limitations issue too late. It says that the time to plead the defense was when the dealership answered-not when it moved for summary judgment. It maintains this view despite the court’s allowing the dealership to amend its motion to include the limitations issue.
Generally, defendants should avail themselves of affirmative defenses early in litigation. Regardless, at whatever point, the court may permit a defendant to amend its pleading to raise a defense so long as (a) amendment would help the case and (b) the other party is not prejudiced by sudden assertion of the defense. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d. ed.2004); Fed.R.Civ.P. 15(b). In addition, the court on its own may dismiss a case for limitations regardless of the stage of litigation. Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991).
Limitations help resolve this case. In addition, the dealership’s raising the defense now does not prejudice the commission. The day that Rafiq filed his charge, the commission knew the information that Streater-Smith now pleads. Had the commission investigated Rafiq’s charge even minimally, it would have learned that its complaint was time-barred. For a year between Rafiq’s charge and the commision’s suit, it never bothered to do this. Instead of doing its work responsibly, the commission sued-wasting the resources of the dealership and the public who must pay twice: first for this court and second for the agency.
8. Conclusion. Rafiq complained to the commission too late. Even if he had not, he suffered no injury as a result of supposed harassment: his sales did not decline. Last, the warning is not actionable. On its motion for summary judgment, Streater-Smith will prevail, and the commission will take
4

E.E.O.C. v. WC & M Enterprises, Inc., Not Reported in F.Supp.2d (2005)

nothing.

	  

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U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:04-cv-03372

CLOSED

EEOC v. WC&M Enterprises Inc Assigned to: Judge Lynn N. Hughes Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff Equal Employment Opportunity Commission
V. Defendant WC&M Enterprises Inc doing business as Streater-Smith Honda

Date Filed: 08/25/2004 Date Terminated: 10/12/2007 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Timothy M Bowne EEOC 1919 Smith 6th Fl Houston, TX 77002 713-209-3395 Fax: 713-209-3402 Email: timothy.bowne@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark R Lapidus Burck Lapidus et al 5177 Richmond Ave Ste 850 Houston, TX 77056 713-400-6000 Fax: 713-622-8054 fax Email: mlapidus@blllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/25/2004 08/25/2004

#

Docket Text

1 COMPLAINT by Equal Employment Opp filed; (bchurchill) Additional attachment(s) added on 4/11/2006 (jdavenport, ). (Entered: 08/26/2004)
2 ORDER for conference set initial pretrial conference for 10:30 11/8/04 before Judge Lynn N. Hughes , entered; Parties notified. (bchurchill) Additional attachment(s) added on 4/11/2006 (jdavenport, ). (Entered: 08/26/2004)

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08/25/2004 09/13/2004 09/13/2004 09/16/2004 09/20/2004
09/20/2004
10/04/2004 10/08/2004 10/12/2004
11/22/2004
12/03/2004 12/03/2004 12/08/2004
12/28/2004 01/03/2005 01/18/2005 01/18/2005

1 SUMMONS issued for WC&M Enterprises Inc (bchurchill) (Entered: 08/26/2004)
3 ORDER for Disclosure.( Signed by Judge Lynn N. Hughes ) Parties notified.(sjones, ) (Entered: 09/14/2004)
4 SUMMONS Returned Executed as to WC&M Enterprises Inc served on 8/26/2004, answer due 9/15/2004, filed.(sjones, ) (Entered: 09/16/2004)
5 ORIGINAL ANSWER to Complaint with Jury demand by WC&M Enterprises Inc, filed.(sjones, ) (Entered: 09/17/2004)
6 ORDER Resetting Conference, The pretrial conference has been reset to 10/12/2004 @3:00pm. ( Signed by Judge Lynn N. Hughes ) Parties notified.(sjones, ) Modified on 9/23/2004 (sjones, ). Modified on 9/23/2004 (ltien, ). (Entered: 09/20/2004)
***Set/Reset Hearings: Pretrial Conference set for 10/12/04 03:00 PM in Courtroom 11C before Judge Lynn N. Hughes. (sjones, ) Modified on 9/23/2004 (sjones, ). Modified on 9/23/2004 (ltien, ). (Entered: 09/20/2004)
8 INITIAL DISCLOSURES by WC&M Enterprises Inc, filed.(sjones, ) (Entered: 10/10/2004)
7 Joint Chronology by Equal Employment Opportunity Commission, filed.(Bowne, Timothy) (Entered: 10/08/2004)
9 CONFERENCE MEMORANDUM: Appearances: Timothy M Bowne, Mark R Lapidus. By November 19, 2004, WC&M must depose Rofig. By November 19, 2004, the commission must depose Burgoon and Swigart. Pretrial Conference set for 11/29/2004 at 03:30 PM before Judge Lynn N. Hughes.( Signed by Judge Lynn N. Hughes ) Parties notified.(jhancock) (Entered: 10/14/2004)
10 UNOPPOSED MOTION To Extend Deadlines, by WC&M Enterprises Inc, filed. Motion Docket Date 12/12/2004. (Attachments: # 1)(psmith, ) (Entered: 11/23/2004)
11 RETURN of Service of Subpoena for Richard Burgeon, Executed on 11/2/04 , filed.(mbergara, ) (Entered: 12/09/2004)
12 RETURN of Service of Subpoena on Jerry Swiggart, Executed on 11/2/04 , filed.(mbergara, ) (Entered: 12/09/2004)
13 ORDER granting 10 Motion for Extension of Time, pretrial conference is reset to 1/18/2005 at 10:30 a.m. .( Signed by Judge Lynn N. Hughes ) Parties notified.(fwilliams) (Entered: 12/09/2004)
14 Subpoena as to Jerry Swiggart , filed.(sjones, ) (Entered: 12/29/2004)
15 SUBPOENA as to Richard Burgoon, filed.(sjones, ) (Entered: 01/04/2005)
16 ORDER parties to produce documents by 2/17/2005 .( Signed by Judge Lynn N. Hughes ) Parties notified.(fwilliams) (Entered: 01/19/2005)
17 CONFERENCE MEMORANDUM held in chambers before Judge Lynn Hughes on 1/18/05: Apps: Timothy M Bowne f/pltf, Mark R Lapidus f/deft. Order to be

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03/02/2005 03/03/2005 03/04/2005
03/08/2005 03/28/2005 04/06/2005 04/08/2005 04/08/2005 04/18/2005 04/29/2005 05/04/2005

entered. A pretrial conference is set for 3/2/05 @4:30pm .( Signed by Judge Lynn N. Hughes ) Parties notified.(sjones, ) (Entered: 01/19/2005)
18 CONFERENCE MEMORANDUM: Appearances: Meagan Krudsen, Timothy M Bowne. Order to be entered. Pretrial Conference set for 4/6/2005 at 04:30 PM before Judge Lynn N. Hughes.( Signed by Judge Lynn N. Hughes ) Parties notified.(jhancock) (Entered: 03/04/2005)
19 ORDER: By March 4, 2005, the dealership must graph the sales data- including gross commissions- for all salesmen in Rafiq's group from May 2001 through October 2002. It must submit a copy to the court .( Signed by Judge Lynn N. Hughes ) Parties notified.(jhancock) (Entered: 03/04/2005)
21 Letter from Megan L. Knudsent re: 7 color charts that compare Mohommed Rafiq's gross earnings with the average gross earnings of all other Honda new car salesperson's at WC&M Enterprises Inc during the relevant time period, filed. (dkelly, ) Additional attachment(s) added on 5/23/2005 (dhansen, ). (Entered: 03/14/2005)
20 ORDER, The dealership must move for summary judgment by 3/25/2005.The commission must respond by 4/8/2005. ( Signed by Judge Lynn N. Hughes ) Parties notified.(bthomas, ) (Entered: 03/09/2005)
22 MOTION for Summary Judgment by WC&M Enterprises Inc, filed. Motion Docket Date 4/18/2005. (Attachments: # 1 Proposed Order)(dkelly, ) (Entered: 03/30/2005)
*** The April 5, 2005, conference is cancelled. Parties notified by phone. (jhancock) (Entered: 04/06/2005)
23 Opposed MOTION to Strike by Equal Employment Opportunity Commission, filed. Motion Docket Date 4/28/2005. (Attachments: # 1 Proposed Order)(Bowne, Timothy) (Entered: 04/08/2005)
24 RESPONSE to 22 WC&M's MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Pt 2 # 2 Proposed Order)(dkelly, ) (Entered: 04/12/2005)
25 Order: Motion Hearing set for 4/29/2005 at 10:00 AM in Courtroom 11C before Judge Lynn N. Hughes as to 22 MOTION for Summary Judgment, 23 Opposed MOTION to Strike, 24 Response to Motion. Parties notified. (jhancock) (Entered: 04/18/2005)
26 Minute Entry for motion hearing for proceedings held before Judge Lynn N. Hughes. Appearances:Megan Krudsen, Timothy M Bowne, Mark R Lapidus.(Court Reporter: Fred Warner)Order to be entered.(jhancock) (Entered: 05/03/2005)
27 ORDER: The Commission's 23 Opposed MOTION to Strike is DENIED. By May 13, 2005, the dealership must produce a chart comparing Rafiq's actual earnings and the average tenure for a new-car salesman. The dealership may amend its motion for summary judgment by May 6, 2005. The commission may respond by May 13, 2005.( Signed by Judge Lynn N. Hughes ) Parties notified.(psmith, ) (Entered: 05/05/2005)

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05/09/2005 05/13/2005 05/16/2005 05/25/2005
06/03/2005
06/03/2005 06/09/2005 06/16/2005 06/24/2005 08/30/2005 10/19/2005 10/19/2005 12/15/2005 12/19/2005 12/29/2005

28 First Amended MOTION for Summary Judgment by WC&M Enterprises Inc, filed. Motion Docket Date 5/31/2005. (Attachments: # 1 Proposed Order)(rroberts, ) (Entered: 05/10/2005)
29 RESPONSE to 28 First Amended MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order)(sfedele, ) (Entered: 05/13/2005)
30 Response from atty Meagan L. Knudsen to Court's 27 Order dated 5/4/05 (sjones, ) Additional attachment(s) added on 5/24/2005 (dhansen, ). (Entered: 05/20/2005)
31 ORDER: The commission has until 06/03/2005, to submit whatever analysis of the sales data it wants the court to review, including a comparison of the earnings of Mohommed Rafiq, Phil Gemmer, and Matthew Kiene.( Signed by Judge Lynn N. Hughes ) Parties notified.(dhansen) (Entered: 05/26/2005)
32 SUPPLEMENT to 29 Response to 28 First Amended MOTION for Summary Judgment by Equal Employment Opportunity Commission, filed.(rwestmoreland, ) Modified on 6/6/2005 - linked to #29 (ltien, ). Additional attachment(s) added on 6/6/2005 (ltien, ). (Entered: 06/06/2005)
33 SUPPLEMENT to its 29 Response to WC&M's First Amended Motion for Summary Judgment, by Equal Employment Opportunity Commission, filed.(psmith, ) (Entered: 06/06/2005)
34 Letter Request from Mark R. Lapidus to file a brief reply on behalf of WC&M Enterprises to the EEOC's supplement to its response to WC&M's first amended motion for summary judgment. (dkelly) (Entered: 06/10/2005)
35 ORDER: By June 24, 2005, the dealership may reply.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly) (Entered: 06/17/2005)
36 Defendant's Reply to EEOC's Response to its 28 MOTION for Summary Judgment, filed by WC&M Enterprises Inc. (Attachments: # 1 Continuation)(rroberts, ) (Entered: 06/27/2005)
37 OPINION on Summary Judgment. On it's 28 MOTION for Summary Judgment, Streater-Smith will prevail, and the commission will take nothing.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly) (Entered: 08/31/2005)
38 FINAL JUDGMENT: the EEOC takes nothing from WC&M Enterprises, Inc. ( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 10/20/2005)
*** Costs are taxed against the commission. (dkelly, ) (Entered: 10/20/2005)
39 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Equal Employment Opportunity Commission (Filing fee $ 255), filed.(Bowne, Timothy) (Entered: 12/15/2005)
40 Transmittal Letter to US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal. Fee status: gov, filed.(jdavenport, ) (Entered: 12/20/2005)
41 TRANSCRIPT ORDER FORM re: 39 Notice of Appeal by Equal Employment Opportunity Commission. This is to order a transcript of the following

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proceedings: Pre-Trial Hearing held on April 29, 2005 before Judge Hughes. Court Reporter: Fred Warner, filed.(psmith, ) (Entered: 01/11/2006)
42 Notice of Docketing Notice of Appeal from US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal. USCA No. 05-21090, filed.(jdavenport, ) (Entered: 01/11/2006)
43 APPEAL TRANSCRIPT of motion hearing held on 4/29/05 before Judge Lynn Hughes re: 39 Notice of Appeal. Court Reporter: Fred Warner, filed.(cpeebles) Additional attachment(s) added on 4/11/2006 (jdavenport, ). (Entered: 03/30/2006)
Electronic record on appeal certified to the U.S. Court of Appeals for the Fifth Circuit. Fifth Circuit Court of Appeals Case Number: 05-21090, filed.(jdavenport, ) (Entered: 04/11/2006)
44 Record on Appeal with certified docket sheet transmitted to US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal ; consisting of 3 volumes of electronic record, 2 of record and 1 of transcript (USCA No. 05-21090), filed.(jdavenport, ) (Entered: 04/19/2006)
45 NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal. USCA No. 05-21090. Record received by USCA on 4/24/2006, filed.(ltien, ) (Entered: 05/18/2006)
46 This entry is a duplicate of 45. NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal. USCA No. 05-21090. Record received by USCA on 4/24/2006, filed.(blacy, ) Modified on 5/18/2006 (ltien, ). (Entered: 05/18/2006)
47 USCA Letter from the US Court of Appeals for the Fifth Circuit re: 39 Notice of Appeal (USCA No. 05-21090). The electronic copy of the record has been recycled.(dhays, ) Modified on 10/15/2007 (dhays, ). (Entered: 10/05/2007)
48 Per Curiam of USCA for the Fifth Circuit (copy) dated 8/10/07 re: 39 Notice of Appeal ; USCA No. 05-21090. Reversed and Remanded. Case reopened on 10/5/07, filed.(rvazquez, ) (Entered: 10/05/2007)
49 Judgment of USCA for the Fifth Circuit (certified copy) dated 8/10/07 issued as mandate 10/02/07; re: 39 Notice of Appeal ; USCA No. 05-21090. Judgment is reversed, and the cause is remanded to the District Court for further proceedings, filed.(dhays, ) (Entered: 10/05/2007)
50 Joint MOTION for Entry of Order re: Entry of Consent Decree by Equal Employment Opportunity Commission, filed. Motion Docket Date 10/29/2007. (Attachments: # 1 Proposed Order Consent Decree)(Bowne, Timothy) (Entered: 10/09/2007)
51 CONSENT DECREE re: 50 Joint MOTION for Entry of Order re: Entry of Consent Decree. Case terminated on 10/12/2007.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 10/12/2007)
52 CONSENT DECREE.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 10/17/2007)

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 United States Court of Appeals Fifth Circuit
F I LED
UNITED STATES COURT OF APPEALS August 10, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III Clerk

No. 05-21090

Docket No. 4:04-CV-3372
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellant

. United States Courts .Warn oFrIsLtEriDct of T"x<1s
OCT 0 5 2007

v .

. . . , . , N. Milby. Clerk

WC&M ENTERPRISES INC doing business as, Streater-Smith Honda

Defendant - Appellee

Appeal from the United States District Court for the Southern District of Texas, Houston.
Before DAVIS, DENNIS, and PRADO, Circuit Judges.

JUDGMENT
This cause was considered on the record on appeal and was argued by counsel.
It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
IT IS FURTHER ORDERED that defendant-appellee pay to plaintiff-appellant the costs on appeal to be taxed by the Clerk of this Court.
ISSUED AS MANDATE: OCT 0 2 2007
A True Copy Attest
Clerk, U.S. Cuurt of Appeals, Fifth Circuit
By: ~ScJ6tyy)tiy 6 SA.&dc5
Deputy ( OCT 0 2 2007
New Orleans, Louisiana