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When protected activity and insubordination collide July 19, 2015

Sixth-CircuitIn Yazdian v. ConMed Endoscopic Tech., Inc., No. 14-3745 (6th Cir. July 14, 2015), the Sixth Circuit reversed summary judgment for the employer, finding that the employee’s complaints could reasonably be understood as complaints of race discrimination, and that there was both circumstantial and direct evidence of causation. The Court’s opinion includes an excellent discussion of what constitutes protected activity, the kinds of evidence that supports a good faith and reasonable belief, whether a district court may credit an employer’s subjective reason at the summary judgment stage that the employee was fired for being insubordinate and overly aggressive with his complaints, proving causation with circumstantial and direct evidence, and the honest belief doctrine.

“To come within the protection of Title VII, Yazdian must establish that he challenged an employment practice that he reasonably believed was unlawful. Title VII does not restrict the manner or means by which an employee may oppose an unlawful employment practice.  Of critical import here is the fact that there is no qualification on the party to whom the complaint is made known. Indeed, a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.”

“Yazdian complained about allegedly unlawful discrimination multiple times during his employment at ConMed. He made the following six statements to Sweatt, which individually and together qualify as Title–VII protected activity:

• “I’m going to respond with counsel.”
• “I’m going to bring you up on charges before …”
• “Bring a lawsuit against [Sweatt]”
• “Hostile work environment.”
• “I will have an attorney respond.”
• “I will be responding with charges.”

These statements—particularly the hostile-work-environment charge—put ConMed on notice that Yazdian believed that Sweatt’s conduct was illegal. “Hostile work environment” is a term of art, which refers to an unlawful employment practice under Title VII that arises because of “discriminatory intimidation, ridicule, and insult[s]” repeatedly directed at an employee on the basis of a protected characteristic. Thus, 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.”



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