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 ************************************************************************ <> <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 Rafiq’s 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 company’s assertion that the comments were “only heard by the employees who were present in the office.” <2> WC&M characterizes the statements regarding Rafiq’s 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&M’s record citation provides the support for the Commission’s allegation that Rafiq was taunted. In response to counsel’s 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 Rafiq’s religion and national origin. <4> Similarly, contrary to WC&M’s 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 Rafiq’s 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 Kiene’s sales compared with Rafiq’s and Gemer’s. WC&M br. at 34 n. 11. As explained in our brief, Kiene’s “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 Kiene’s earnings during that period, the evidence as a whole supports EEOC’s position that Kiene was a proper comparator. <6> WC&M repeats its argument that Argabrite’s banging on the glass partition of Rafiq’s office cannot be part of the hostile environment because there is “no evidence that Argabrite banged on the window . . . because of his hostility to Rafiq’s religion or national origin.” WC&M br. at 39. For the reasons discussed supra, at pp. 12-13, a reasonable jury could find that Argabrite’s physical intimidation of Rafiq was motivated by the same discriminatory animus expressed in his verbal harassment.