Berman v. Orkin Exterminating Co. (160 F.3d 697, 1998)

CLARK, Senior Circuit Judge:

Plaintiff-appellant Mare Berman appeals the judgment for defendant-appellee Orkin Exterminating Company, Inc. (“Orkin”) on Berman’s employment discrimination claim. We reverse.

I.

Berman, a member of the Jewish religion, began his employment with Orkin in 1989 as a termite salesman in the Hallandale, Florida office. Berman qualified for the president’s club and honor council based on his 1990 sales. In May 1990, Berman questioned manager David Bernstein regarding the reduction in Berman’s commission from his sale of fumigation contract, and was told that the reduction was because “[yjou’re Jewish.” About the same period of time, Ber-man heard manager Raul Quiroga refer to Jewish and Jamaican persons in the Hallan-dale office as “Jewmaieans” and comment that “[tjhe Jew didn’t make any money today.” Berman said that manager Jose Rodriguez once said to Berman “[yjou’re a Jew; you know how to make money.” Bernstein testified that Berman never complained to him about any religious comments made in the Hallandale office.

In February 1992, Berman was promoted to sales manager of the West Palm Beach office. While Berman worked in West Palm Beach, regional sales coordinator William Hill made two comments to Berman which Berman considered to be anti-Semitic. After Berman turned down a promotion to Miami, he was transferred to the Pompano office as a salesman. In May 1993, while Berman worked in the Pompano office, a message was left on Berman’s home answering machine concerning a sales lead in which the speaker referred to Berman being Jewish. Berman identified the voice on the answering machine as belonging to Pompano branch manager Mark Craven. After receiving this message, Berman’s sales territory was eliminated. In June 1993, Berman filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) alleging discrimination based on his religion. Hill, Miami region manager Tom Cafiero, and South Florida region manager Joseph Cannariato were aware of Berman’s first EEOC charge.

On August 12, 1993, Cannariato offered Berman in writing a transfer to the Fort Lauderdale office as a sales supervisor with a slight increase in pay. On August 16, 1993, Cannariato and Berman discussed the Ft. Lauderdale sales supervisor position, but Berman rejected the offer. Berman testified that he declined the transfer because he was afraid that he would not be able to completely satisfy Cannariato and would not have been able to sell. After Berman had rejected the offer, Cannariato, on August 16, 1993, involuntarily transferred Berman to Ft. Lauderdale as a sales person. On August 26, 1993, Berman filed a second EEOC charge alleging retaliation based on the filing of his first EEOC charge. Within a few days of Berman’s transfer to the Fort Laud-erdale office, his sales territory was cut in half, but was later reinstated. When Ber-man complained, he was told by branch manager Howard “Sam” Houston that “ if [Ber-man] d[idn]’t like it, [Berman] should quit.” Berman never complained of religious discrimination to Houston or advised Houston that Berman had filed an EEOC complaint.

In October 1993, Berman was transferred from the Fort Lauderdale office to the Hal-landale office, and was told that he would have his original territory. In Hallandale, Berman’s sales manager was Dennis Bacerio, and his branch manager was Alex McKinsey. On a weekly basis or when Berman did not understand something, Bacerio would ask whether Berman wanted Bacerio “to speak Jewish to [him].” Berman’s Hallandale territory was cut five blocks on his first day, five additional blocks a week later, and to one-half its previous size in May 1994. The May 1994 cut caused Berman