How much credence must a district court give to an employer’s argument in a Title VII retaliation case that the employee was terminated not for his protected activity, but because of his tone of voice, insubordination and “unprofessional behavior” in making his complaints. The Sixth Circuit reverses summary judgment (in part), holding that such generalized reasons so closely related to a protected activity cannot be resolved by a judge and must be evaluated by a jury.
Yazdian v. ConMed Endoscopic Tech., Inc., No. 14-3745 (6th Cir. July 14, 2015): plaintiff Yazdian sold endoscopic products as a territory manager, and had a good performance record. During his final two years of employment, though, plaintiff believed that his manager (Sweatt) manifested bias against him because of national origin (Iranian) and religion (Muslim). Such acts included sending him a National Geographic story about Persia, giving him a gift certificate to the Honey Baked Ham Store (along with the There territorial managers), and failing to promote him.
During April through July 2010, an escalating series of verbal spats broke out between Yazdian and Sweatt, beginning with a disagreement about whether Yazdian would be allowed to publish an article in the company newsletter. (Sweatt thought the article was poorly written, and killed it.) “Yazdian became upset and confronted Sweatt, asserting ‘[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.'” Subsequent arguments returned to this theme, with Yazdian eventually asking for a transfer because he felt that “Sweatt was creating a hostile work environment for him, treating him differently from There territory managers, and possibly discriminating against him.”
In his communications with management, Sweatt painted Yazdian as negative, rude and failing to accept responsibility. Based on this, a company HR manager (Hebbard) drafted a written warning to Yazdian. Sweatt issued that written warning on July 13, 2010 and informed Yazdian on the phone that the reason for the warning was “ongoing unacceptable conduct/behavior, particularly in . . . communications.” Yazdian said that he would respond to the warning “through his counsel, in writing,” and five days later faxed a point-by-point rebuttal letter. HR briefly investigated Yazdian’s complaints, but determined they were unfounded.
Within a week, on July 26, 2010, ConMed terminated Yazdian’s employment for supposedly violating ConMed’s conduct policy, for “prior behavioral issues, and because when he received his written warning, he became combative.”
Yazdian sued ConMed for violations of Title VII, for both discrimination and retaliation. The district court granted summary judgment on both claims. The Sixth Circuit reverses on the retaliation claim.
To begin with, the panel holds that a jury could find that Yazdian was engaged in protected activity by raising his complaints about national origin and religious discrimination with his supervisor: “Yazdian complained about allegedly unlawful discrimination multiple times during his employment at ConMed.” In particular, he complained about a “[h]ostile work environment.” Holds the panel, “an employee who complains that an employer is creating a ‘hostile work environment’ engages in Title-VII-protected activity when the context objectively reveals that the employee is using the expression to complain about repeated abusive discriminatory comments or treatment.”
“In addition,” the panel notes, “the record shows that ConMed understood Yazdian’s complaints as opposition to Sweatt’s conduct because the legal department told Hutto to investigate Yazdian’s claim after learning that Yazdian had accused Sweatt of creating a hostile work environment and not liking his ‘race.'”
Moreover, it was irrelevant that Yazdian did not channel his complaints formally to human resources: “protected activity includes complaints to co-workers, reporters, and managers, and Therefore to whom Yazdian made statements opposing discrimination is immaterial to the viability of his retaliation claim.”
Second, the panel holds that There is evidence in the record to infer a retaliatory motive. There was, for instance, the direct evidence that “[when Sweatt provided ConMed with examples of Yazdian’s communication problems and ‘unwillingness to accept and apply constructive coaching,’ Sweatt cited Yazdian’s hostile-work-environment and discrimination comments as examples.” Worse yet, “Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges.”
The panel particularly noted that “summary judgment is not proper when an employer cites an employee’s tone of voice or manner of speaking as the cause of termination-particularly in the context of a Title VII claim of retaliation.” This because “[p]erception of a person’s manner of speaking is inherently subjective, and Therefore we must leave it to the jury to decide whether they believe Yazdian’s or Sweatt’s account of the conversation.”
There was also evidence of “temporal proximity”: Sweatt was aware of Yazdian’s complaints no later than June 1, 2010; Yazdian was terminated July 26, 2010; and in between came the warning letter and There communications “in which Sweatt called Yazdian’s protected activity inappropriate.”
Finally, There was evidence that the employer’s reason for terminating Yazdian was pretextual. The company cited the plaintiff’s insubordination, but the panel holds that “at the summary-judgment stage, we cannot accept an employer’s conclusory claim that an employee was insubordinate when the alleged ‘insubordination consists of refusing to cease what a jury could find to be reasonable [Title VII]-protected activity'” (quoting Kempcke v. Monsanto Co., 132 F.3d 442, 446 (8th Cir. 1998)).
The panel observes, in a valuable analysis, that not all claims of “insubordination” are equal, and that those that cut close to protected activity warrant extra skepticism:
“There is a difference, however, between a refusal to follow an order and an assertion that an employee was ‘rude’ or ‘defiant.’ Indeed, There may be some instances when the allegedly insubordinate act may be a response to a sort of unspoken, subliminal discrimination in the workplace. For example, a woman who takes a strong position may be considered ‘pushy,’ whereas a man who does the same is ‘assertive.’ One manager may call a black man ‘aggressive’ and a white man ‘passionate’ for the same speech. These are just a few examples of how subjective these adjectival labels can be. And whether these adjectives are evidence of discrimination or are legitimate grounds for termination requires examining the words in context and the demeanor of the speakers – quintessential jury functions.”
Although the employer tried to argue that it terminate Yazdian based on its “honest belief” that he crossed the line into insubordination, the panel holds that the Sixth Circuit’s “honest belief” rule required at least a modicum of good-faith investigation into the facts:
“The record suggests that ConMed chose to terminate Yazdian based solely on Sweatt’s account of events. Hebbard did not interview Yazdian, his co-workers, or past managers to determine the basis of Sweatt’s allegations before drafting the warning letter. In addition, on July 13, 2010, after Yazdian spoke with Sweatt about the warning letter, Yazdian contacted [management] The record suggests that ConMed chose to terminate Yazdian based solely on Sweatt’s account of events. Hebbard did not interview Yazdian, his co-workers, or past managers to determine the basis of Sweatt’s allegations before drafting the warning letter. In addition, on July 13, 2010, after Yazdian spoke with Sweatt about the warning letter, Yazdian contacted [management] to let them know that he wanted an opportunity to present his side of the story with respect to the contents of the letter. Yazdian also said that he wanted to file a complaint against Sweatt with Human Resources. On July 26, 2010, ConMed made the decision to terminate Yazdian before even reading Yazdian’s rebuttal letter, which he had submitted on July 18. ConMed could not have been fully informed about the circumstances surrounding Yazdian’s termination if it did not even take the time to read Yazdian’s response.”
On the discrimination claim, the Sixth Circuit affirms summary judgment, holding that the evidence of national origin and religious motives by Sweatt was too slim to support an inference of discriminatory motive.