The Sixth Circuit Court of Appeals reverses district court’s summary judgment ruling in Yazdian v. ConMed Endoscopic Tech., Inc., on a Title VII retaliation claim, finding a reasonable jury could conclude the former employee was terminated for engaging in protected activity.

Background

Reza Yazdian, an Iranian-American Muslim, was employed with ConMed Endoscopic Tech., Inc. from April 1, 2005 through July 26, 2010, as a territory manager. In 2009, Yazdian received favorable ratings in all categories and was described as a talented salesman. Yazdian’s direct supervisor from 2008 until the time of his termination was Timothy Sweatt, and Sweatt reported directly to Scott Jackson.

In or around 2009, Yazdian began noting incidents that he believed demonstrated Sweatt’s prejudice against Iranians and Muslims. In April 2010, Yazdian closed a major sale and drafted a news article about the sale he wished to have published in ConMed’s internal newsletter. After much back and forth, Sweatt stated that the article would not be published as written. Sweatt went on to describe the article as “embarrassing,” “poorly worded,” and “far too self-serving.” Yazdian confronted Sweatt about the comments stating “[y]ou don’t like the way I write, you don’t like the way I talk, I guess you don’t like my race, either.”

During a June telephone meeting, Yazdian accused Sweatt of creating a hostile work environment. Shortly after that call, Yazdian called Scott Jackson and requested a transfer to another division that was under a different manager. Yazdian also told Jackson that Sweatt was creating a hostile work environment, treating him differently from other territory managers and possibly discriminating against him. Jackson took no action.

Sweatt, Jackson and Karen Hutto, Vice President of Human Resources, met to discuss the tension between Sweatt and Yazdian and, after the meeting, Sweatt drafted an email to Hutto detailing examples of Yazdian’s “behavioral issues.” Hutto reviewed the email and directed an HR manager to prepare a written warning. Yazdian, however, was never provided an opportunity to respond or present his side of the story.

On July 13, 2010 Sweatt called Yazdian to inform him about the written warning and informed Yazdian that the reason for the warning was his “ongoing unacceptable conduct and behavior, particularly in his communications.” Sweatt provided the written warning and several supporting examples. In fact, Sweatt referenced Yazdian’s comment that Sweatt was creating a hostile work environment. Yazdian stated he would provide a response through his counsel in writing. Sweatt again drafted an email to HR and Jackson outlining the comments made by Yazdian during the call. Sweatt closed the email by stating, he was “not optimistic that there was anything close to a recognition [by Yazdian] of needed behavioral changes much less a commitment for improvement” to which Jackson asked what “next steps” should be taken. Sweatt found termination was the only appropriate next step.

Yazdian called Jackson to discuss the warning letter and when he couldn’t reach Jackson he left a voicemail stating he would “build a written case/rebuttal” and requested an opportunity to speak with him. Yazdian also drafted an email to Jackson, cc’d Sweatt and the HR manager, stating his desire to respond in writing and he stated he intended to file a complaint against Sweatt with HR.

A couple of days later, the HR team held a conference call with Sweatt and Jackson to discuss Yazdian’s future at ConMed. Sweatt again painted Yazdian in a negative light to the group, but he was not alone this time, Jackson also stated he experienced Yazdian’s behavior first hand, and provided three examples. Hutto decided someone should hear Yazdian’s side of the story, so that HR could evaluate both sides.

The HR manager called Yazdian and informed him to draft a rebuttal to the warning letter and submit it to her by July 19th. She also allegedly told him not to complain about Sweatt and Jackson in his rebuttal because that would be cause for immediate termination. Yazdian submitted his written response to the HR manager on July 18th. He provided a detailed response to each charge of inappropriate behavior and included letters of reference, emails, and performance evaluations. The problem…neither the HR manager nor Jackson reviewed the rebuttal. Hutto contacted the HR manager requesting he follow up with Yazdian about the race comments. The follow-up conversation with Yazdian was tense, and Yazdian felt he was being told he could not complain about Sweatt or Jackson. Six days later, ConMed terminated Yazdian’s for violating ConMed’s conduct policy, “prior behavioral issues and because when he received his written warning, he became combative.”

The Charge and The Suit

Yazdian filed a charge of discrimination and retaliation with the EEOC. The EEOC issued a probable cause determination on Yazdian’s behalf, and he filed suit. Yazdian alleged ConMed violated Title VII by discriminating and retaliating against him. ConMed filed a motion for summary judgment and the district court granted it as to the discrimination and retaliation claims.

The Appeal

Analyzing the retaliation claim, the Sixth Circuit first considered whether Yazdian engaged in protected activity. Yazdian needed to establish he challenged an employment practice that he reasonably believed was unlawful. The court found the following:

  • Yazdian complained several times about unlawful discrimination during his employment with ConMed, and he had made at least six (6) statements which would qualify as Title VII-protected activity;
  • The statements about hostile-work environment put ConMed on notice that Yazdian believed that Sweatt’s conduct was unlawful; and
  • The HR department understood Yazdian’s complaints as opposition to Sweatt’s conduct as evidenced by Hutto’s request that the HR manager call Yazdian back to investigate his statements about Sweatt not liking his race.

The three-judge panel found that a reasonable jury could conclude that Yazdian had engaged in Title VII- protected activity when he raised his complaints about national origin and religious discrimination with his supervisor.

The court also examined whether Yazdian had direct or circumstantial evidence of retaliation. Sweatt’s direct evidence that ConMed terminated him because he opposed Sweatt’s alleged discriminatory treatment included the following:

  • Sweatt specifically referenced Yazdian’s protected statements as examples of insubordination;
  • Sweatt cited Yazdian’s hostile work environment and discrimination comments as examples;
  • Sweatt described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him]”, as “unprofessional” and totally “unacceptable”; and
  • Sweatt also cited the incident during which Yazdian stated Sweatt did not like his race.

More damning was Sweatt’s decision to terminate Yazdian immediately after the tense phone call during which Yazdian stated he would file a lawsuit and charges in response to the warning letter, and that Sweatt was creating a hostile work environment. The court found these documents to be direct evidence, and that a reasonable jury should decide whether Sweatt terminated Yazdian because of his tone or because of his statements.

The court also examined whether Yazdian presented circumstantial evidence that ConMed terminated him in retaliation for protected activity. Yazdian was required to demonstrate, (1) that he engaged in protected activity; (2) ConMed was aware that he had engaged in protected activity; (3) after he engaged in protected activity, ConMed took an “adverse employment action” against him; and (4) “there was a causal connection between the protected activity and the adverse employment action.” The court found Yazdian produced sufficient evidence of pretext that summary judgment was not appropriate.

Although ConMed asserted it had an “honest belief” in its nondiscriminatory reason for firing, stating it relied on the particularized facts that were before it at the time the decision was made, ConMed’s “honest belief” failed because the record showed ConMed based its termination decision solely on Sweatt’s account of the events. ConMed did not review Yazdian’s rebuttal letter and supporting documents before termination, no one provided Yazdian an opportunity to be heard, and ConMed did not investigate Yazdian’s discrimination complaint.

The court reversed the judgment and remanded the case to the district court for further proceedings with respect to the retaliation claim.

Takeaways for employers

  • Employers should take all complaints seriously and should investigate fully all employee complaints. Terminating an employee who has not been given an opportunity to provide his/her side of the story will almost certainly result in a EEOC charge or lawsuit and, as in this case, will negate any honest belief defense that otherwise might exist.
  • Protected activity under Title VII includes internal complaints and expressions of concern about discrimination in the workplace to co-workers, clients, and other managers. Indeed, the Sixth Circuit in EEOC v. New Breed Logistics previously has held that the simple act of telling a harasser to stop qualifies as Title VII protected activity. As a result, employers should be mindful of when an employee has engaged in protected activity, to investigate as necessary, and then be certain that any adverse employment actions that may occur in the future can be supported by the pertinent facts giving rise to the action.