NEWS

By Lisa Nagele-Piazza

July 14 — A territory sales manager in Ohio who is a first-generation Iranian American and non-practicing Muslim may proceed to trial on his claim that he was fired in retaliation for complaining about employment practices he believed were unlawful, the U.S. Court of Appeals for the Sixth Circuit ruled July 14.

Partially reversing summary judgment for ConMed Endoscopic Technologies Inc., the Sixth Circuit said a reasonable jury could find that Reza Yazdian engaged in protected activity when he told his direct supervisor, Tim Sweatt, that he believed Sweatt was creating a hostile work environment and he would be “responding with charges” to a written warning.

Although ConMed contended that Yazdian was fired for insubordination, “Sweatt repeatedly cited Yazdian’s protected comments as evidence of unacceptable behavior,” the court said. Furthermore, a reasonable jury could find that Yazdian's behavior only became an issue after he complained that Sweatt was creating a hostile work environment.

But the court affirmed summary judgment to ConMed on Yazdian's underlying claims of national origin and religious discrimination. Yazdian pointed to four events in support of his claims, including that Sweatt gave all territory managers Honey Baked Ham Store gift certificates and mentioned to Yazdian that the store sold non-pork products. The court agreed with ConMed that Yazdian's evidence was “trivial.”

Yazdian also claimed Sweatt encouraged a non-Muslim, less senior employee to apply for a promotion, but he didn't point to any evidence suggesting that national origin or religion factored into the decision, the court said.

Judge Karen Nelson Moore wrote the opinion, joined by Judges R. Guy Cole and Eric L. Clay.

‘Rocky Relationship' with Supervisor

According to the court, Yazdian worked as a ConMed territory manager in Cincinnati from 2005 until he was fired in 2010. He had received awards, bonuses and promotions for his performance.

Yazdian and Sweatt had a “rocky relationship” that Sweatt attributed to Yazdian's “behavioral issues” and Yazdian attributed to Sweatt's prejudice against Iranians and Muslims.

After several confrontations in 2010, Yazdian and Sweatt had a telephone meeting during which Yazdian complained to Sweatt that he was creating a hostile work environment and was “the worst manager [he] ever had.”

Sweatt provided Yazdian with a written warning about his “inappropriate outbursts, combativeness, rudeness” and other inappropriate behavior. The warning cited to Yazdian's hostile work environment comment and a race-based complaint he made as supporting examples.

Sweatt called Yazdian to discuss the letter before he delivered it, and Yazdian said he would respond “through his counsel, in writing.”

Yazdian was eventually fired because he “became combative” after receiving the warning.

Evidence of Retaliation

Yazdian claimed he was terminated in retaliation for complaining of national origin and religious discrimination in violation of Title VII of the 1964 Civil Rights Act.

The court found that he produced sufficient direct evidence to support his claim. Sweatt testified that he made the decision to fire Yazdian after the phone call during which Yazdian said he was going to file a lawsuit and said that Sweatt was creating a hostile work environment, the court said.

Furthermore “Sweatt specifically referenced Yazdian’s protected statements as examples of insubordination,” it said.

Thus, “a reasonable jury could conclude that Sweatt believed Yazdian’s protected activity constituted insubordination, and therefore that Sweatt terminated Yazdian because of the protected statements that Yazdian had made,” the court held.

The court also found that Yazdian pointed to triable issues under the McDonnell Douglas analysis as to whether ConMed's stated reason for terminating his employment was a pretext for discrimination.

“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,' ” the court said.

Although there is documentation that Yazdian was coached about his communication style before his alleged protected activity, he wasn't clearly told that his behavioral issues could lead to his termination.

Therefore a jury could find Yazdian’s behavior didn't warrant termination because he was a good performer, and the behavior only became an issue after he made his complaints, the court said.

George M. Reul of Freking & Betz in Cincinnati represented Yazdian. Laura L. Spring of Cohen, Compagni, Beckman, Appler & Knoll in Syracuse, N.Y. and Colleen M. Blandford of Kohnen & Patton in Cincinnati represented ConMed.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/REZA_YAZDIAN_PlaintiffAppellant_v_CONMED_ENDOSCOPIC_TECHNOLOGIES_.