1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0148p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

REZA YAZDIAN, 

Plaintiff-Appellant, 

v. 

CONMED ENDOSCOPIC TECHNOLOGIES, INC., 

Defendant-Appellee. 

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No. 14-3745 

Appeal from the United States District Court 

for the Southern District of Ohio at Cincinnati. 

No. 1:12-cv-00951—Sandra S. Beckwith, District Judge. 

Argued: March 6, 2015 

Decided and Filed: July 14, 2015 

Before: COLE, Chief Judge, MOORE and CLAY, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: George M. Reul, Jr., FREKING & BETZ, LLC, Cincinnati, Ohio, for Appellant. 

Laura L. Spring, COHEN, COMPAGNI, BECKMAN, APPLER & KNOLL, Syracuse, New 

York, for Appellee. ON BRIEF: George M. Reul, Jr., FREKING & BETZ, LLC, Cincinnati, 

Ohio, for Appellant. Laura L. Spring, COHEN, COMPAGNI, BECKMAN, APPLER & 

KNOLL, Syracuse, New York, Colleen M. Blandford, KOHNEN & PATTON LLP, Cincinnati, 

Ohio, for Appellee. 

 

>
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 2 

_________________ 

OPINION

_________________ 

 KAREN NELSON MOORE, Circuit Judge. 

I. BACKGROUND

 Plaintiff-Appellant Reza Yazdian is a first-generation Iranian American and nonpracticing Muslim, who worked as a territory manager for Defendant-Appellee ConMed 

Endoscopic Technologies, Inc., for approximately five years. During his tenure at ConMed, 

Yazdian received awards, promotions, and praise, but he also had interpersonal problems with 

his manager, Timothy Sweatt. In June 2010, Yazdian complained that Sweatt was creating a 

hostile work environment and discriminating against him; within six weeks of this complaint, 

ConMed terminated Yazdian. 

 Yazdian filed this action, alleging that ConMed terminated him in retaliation for 

opposing an unlawful employment practice and because of his national origin and religion in 

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district 

court granted summary judgment for ConMed on both claims. We hold that the district court 

erroneously entered summary judgment on the retaliation claim, and therefore we REVERSE

the judgment and REMAND the case to the district court for further proceedings. Because no 

reasonable jury could find that ConMed terminated Yazdian because of his national origin or 

religion, we AFFIRM the judgment with respect to the discrimination claim. 

II. FACTS AND PROCEDURAL HISTORY

 Yazdian sold endoscopic products as a territory manager for ConMed in the territory 

around Cincinnati, Ohio, from April 1, 2005, to July 26, 2010, when ConMed terminated his 

employment. By all accounts, Yazdian was a talented salesman, receiving awards, bonuses, and 

promotions for his performance at ConMed. In 2009, Yazdian’s supervisors rated his work 

“good” or “very good” in all categories. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 3 

 From early 2008 to July 2010, Tim Sweatt was a district manager and Yazdian’s direct 

supervisor. During the time leading up to Yazdian’s termination, Sweatt reported to the director 

of sales, Scott Jackson. Yazdian and Sweatt had a rocky relationship, which Yazdian asserts was 

the result of Sweatt’s prejudice against Iranians and Muslims, as evidenced by four events. 

First, Yazdian felt that Sweatt singled him out because of his ethnic background when, in 

early 2009, Sweatt sent Yazdian an unsolicited article from National Geographic about ancient 

Persia. Attached to the article was a note from Sweatt: “Reza, I took out the subscription to 

National Geographic for my kids, but this cover story on ancient Iran caught my eye [and] was a 

very interesting read. Thught [sic] you would want to see it as well.” R. 39-1 at 2 (Sweatt Dep. 

Ex. 2) (Page ID #1231). Sweatt explained that he sent Yazdian the article because he had a 

custom of sending his territory managers interesting articles to build rapport and thought 

Yazdian would find the article interesting because “[Yazdian] talked very frequently to anyone 

who would listen about his—he [sic] was very proud of his Persian heritage, Iranian heritage 

. . . .” R. 39 at 111–12 (Sweatt Dep.) (Page ID #1085–86). 

 The second incident occurred in December 2009, when Sweatt sent all territory managers 

gift certificates to the Honey Baked Ham Store because it was customary for the ConMed 

managers to send territory managers holiday gifts. Sweatt sent Yazdian a separate email about 

the gift in which he said, “Although I believe you have said you do eat pork, I would like to 

mention that if you have never shopped at this place, they have many other items—the turkey is 

quite good!” R. 39-1 at 15 (Sweatt Dep. Ex. 16) (Page ID #1244). Yazdian took offense; he 

believed that Sweatt had singled him out by referencing that he was a Muslim. 

 Third, in February 2010, Sweatt invited Yazdian and John Kruse—a non-Iranian, nonMuslim territory manager—to attend a national sales meeting. Both Kruse and Yazdian 

expected to receive an award at the meeting. At the beginning of the multi-day meeting, Sweatt 

told Kruse that he would not receive the award and requested that Kruse not tell Yazdian because 

Sweatt thought it would be best to deliver the news in person. Shortly before the ceremony, 

Sweatt told Yazdian the disappointing news that Yazdian would not receive an award. Yazdian 

was offended that Sweatt had not given him advance notice as he had done with Kruse.
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 4 

 Finally, Yazdian believed that he was passed over for a promotion in favor of less 

qualified non-Iranian, non-Muslim employees. In the winter of 2009–10, Sweatt and Jackson 

solicited applications for field trainers. Sweatt sought applications from John Kruse and Pat 

O’Brien, who are both white and less senior than Yazdian, but he never approached Yazdian 

about the opportunity despite knowing that Yazdian desired a promotion. 

 The conflict between Yazdian and Sweatt came to a head in April 2010 after Yazdian 

closed a very large sale and submitted an article that he had written about the deal to Marketing 

Messenger, ConMed’s internal newsletter. Christine Pandolf, the editor, did not want to publish 

the article immediately because it was longer than typical articles, and she wanted to validate the 

information in the article with Sweatt. After Sweatt reviewed the article, he told Yazdian that he 

would not publish the article as written. When Yazdian asked for an explanation, Sweatt 

explained that it was not a territory manager’s job to submit articles and that Yazdian’s article 

was “embarrassing,” “poorly worded,” and “far too self-serving.” R. 39 at 200–01 (Sweatt Dep.) 

(Page ID #1174–75). 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.” Id. at 201 

(Page ID #1175). 

 On June 1, 2010, Yazdian and Sweatt had a telephone meeting during which Yazdian 

lodged numerous complaints. According to Sweatt’s notes, Yazdian said that Sweatt was 

creating a hostile work environment; that Sweatt was the worst manager Yazdian had ever had; 

that Yazdian fielded many emails from co-workers about Sweatt’s management style; that 

Sweatt had not backed Yazdian on anything; and that Sweatt did not show Yazdian any 

“longevity or respect.” R. 43-1 at 7 (Sweatt Notes) (Page ID #1775). Yazdian also apparently 

told Sweatt, “I’m in the driver seat, don’t think you are[.] You are out of line.” Id.

 Soon after the phone call, Yazdian called Jackson to request a transfer to another division 

that was under the supervision of a different manager. Yazdian explained that he wanted to 

transfer because Sweatt was creating a hostile work environment for him, treating him differently 

from other territory managers, and possibly discriminating against him. Yazdian testified that 

Jackson’s response was to tell Yazdian to “look into a mirror” and to “complain to HR about it” 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 5 

“if [Yazdian,] ha[d] a smoking gun.” R. 41 at 56 (Yazdian Dep. II at 278)1 (Page ID #1314). 

Jackson’s recollection is different; he testified that Yazdian wanted to transfer to a different 

division because he did not like Sweatt’s management style. 

 On June 15, 2010, Sweatt, Jackson, and Karen Hutto, the vice president of human 

resources, discussed the friction between Sweatt and Yazdian. After the meeting, Sweatt wrote 

an email to Hutto, which included examples of Yazdian’s “behavioral issues.” See R. 47 at 1 

(Email 6/18/10) (Page ID #1930). The first example was Yazdian’s response to Sweatt’s 

decision not to publish the article in the Marketing Messenger, including Yazdian’s accusation 

that Sweatt did not like Yazdian’s race. Sweatt also mentioned the June 1 phone conversation 

during which Yazdian complained that Sweatt was creating a hostile work environment. Sweatt 

included three other examples of Yazdian’s behavior: (1) rudeness to Jackson, (2) a complaint 

by another territory manager that Yazdian was a negative influence, and (3) a claim that Yazdian 

did not want to accept responsibility for securing fewer orders from an existing client than he had 

in previous quarters. Id. at 2 (Page ID #1931). Sweatt summarized Yazdian’s behavior as 

follows: 

The common theme in all of these examples is a [territory manager] who is unable 

to hear the word ‘no’ in any shape or form, and is unable and unwilling to accept 

constructive coaching and feedback from management. He is unwilling to accept 

any coaching as to his behavior or communications, despite our repeated attempts 

to do so. 

Id. at 3 (Page ID #1932). 

 In response to the email, Hutto directed Deborah Hebbard, a human resources manager, 

to draft a written warning to Yazdian based on the June 18 email from Sweatt. On July 13, 2010, 

Sweatt issued the written warning and informed Yazdian on the phone that the reason for the 

warning was “ongoing unacceptable conduct/behavior, particularly in . . . communications.” 

R. 46-9 at 1 (Sweatt Dep. Ex. 23) (Page ID #1911). Attached to the letter were examples of the 

problematic behavior: inappropriate outbursts, combativeness, rudeness or indifference to 

management, using a threatening tone, creating discord within the sales team, and unwillingness 

to accept and apply constructive coaching. Among the supporting examples were references to 

 1

ConMed deposed Yazdian twice, and so we have labeled the deposition transcripts by volume number. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 6 

Yazdian’s June 1, 2010 comment that Sweatt was creating a hostile work environment, and the 

April 9, 2010 conversation during which Yazdian had said, “I guess you don’t like my race 

either.” Id. at 4 (Page ID #1914). 

Before delivering the warning, Sweatt called Yazdian to discuss the letter. Yazdian told 

Sweatt that he would respond to the warning “through his counsel, in writing,” and mentioned 

that he intended to call physicians to request that they write testimonial statements on his behalf 

and ConMed employees “to support his case that [Sweatt is] a bad manager.” R. 44-8 at 1–3 

(Jackson Dep. Ex. 13) (Page ID #1825–27). Sweatt wrote an email to Hebbard and Jackson 

describing the phone call and listed comments Yazdian allegedly made, including: 

 I am going to put you on a warning. 

 I’m going to win, ‘cause I always do. . . . 

 I’m going to bring you up on charges before the Board. 

 Anything you have to say to me say it in writing. 

 I can’t believe you are doing this three weeks before my wedding . . . . 

 I am going to bring a lawsuit against you, Tim, so you had better watch 

yourself. 

 You have been out of line with me from day one. 

 You are creating a hostile work environment for me. 

 You are a bad individual. 

 I can’t believe that at my level you question my authority. 

 You can’t intimidate me by calling me about this letter. 

 I am going to call Joe [Corasanti]2

 directly on this. 

 You are challenging my character. 

 You have initiated a war with me. I’ve been waiting for you to do this. 

I’m looking forward to the dance with you. I will take this before the 

Board. 

 You can’t intimidate me because I’ve taken on federal judges before. 

 You make poor decisions. 

 You can’t control my first amendment right. 

 I want a paper trail with you. 

 You make inappropriate business decisions. 

 You are not in a position to challenge me. 

 I don’t think you are a gentlem[a]n. 

 I know people respect me more than they respect you. 

 I will be responding with charges on you. 

 Don’t call me anymore, except for our weekly call in. 

 2

Corasanti was the CEO of ConMed. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 7 

Id. at 1–2 (Page ID #1825–26).3 At the close of the email, Sweatt concluded that he was “not 

optimistic that there is anything close to a recognition [by Yazdian] of needed behavioral 

changes much less a commitment for improvement.” Id. at 2 (Page ID #1826). In response, 

Jackson asked Sweatt what “next steps” they should take. Id. at 1 (Page ID #1825). Sweatt 

thought there were no more steps to take; he had made the decision to fire Yazdian immediately 

after this phone call. R. 39 at 194–96 (Sweatt Dep.) (Page ID #1168–70). 

 After talking with Sweatt, Yazdian called Jackson to discuss the warning letter and left a 

message, saying that he was going to take a week to “build a written case/rebuttal” and asked to 

speak with Jackson directly. R. 46-10 at 1 (Sweatt Dep. Ex. 24) (Page ID #1915). Yazdian also 

wrote Jackson an email, copying Sweatt and Hebbard, in which he reiterated that he wished to 

respond to the warning and that he intended to file a complaint against Sweatt with Human 

Resources. 

 On July 15, 2010, Hutto, Hebbard, Jackson, and Sweatt held a conference call to discuss 

Yazdian’s future at ConMed. Sweatt told the group that Yazdian had launched into a “tirade” 

before Sweatt could discuss the warning letter. R. 47-7 at 1–2 (Hebbard Notes) (Page ID #1978–

79). Jackson said that he had “experienced [Yazdian’s] behavior first hand,” and relayed three 

examples. Id. at 1 (Page ID #1978). Hutto decided that she needed to hear Yazdian’s “side of 

the story in order to evaluate both sides,” and so she asked Hebbard to investigate. Id.; R. 32 at 

89–90 (Hebbard Dep.) (Page ID #363–64). During the phone call to Yazdian, Hebbard told him 

to draft a rebuttal to the warning letter, and later that day she sent Yazdian an email instructing 

him to submit the rebuttal to her by July 19. Yazdian testified that Hebbard warned him not to 

complain about Sweatt or Jackson in his rebuttal because that would be cause for immediate 

termination.

 On July 18, 2010, Yazdian faxed a written response to the written warning to Hebbard in 

which he responded to each charge of inappropriate behavior and included letters of reference, 

 3

Yazdian has admitted that he made the following comments: “I am going to put you on a warning”; 

“Anything you have to say to me say it in writing”; “I can’t believe you are doing this three weeks before my 

wedding”; “You have been out of line with me from day one”; “You are creating a hostile work environment for 

me”; “I am going to call [ConMed CEO Joe Corasanti] directly on this”; and “You make poor decisions.” See R. 41 

at 66–71 (Yazdian Dep.) (Page ID #1324–29). He could not recall making the other statements. See id.
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 8 

emails, and performance evaluations. Neither Hebbard nor Jackson could remember reviewing 

the rebuttal. 

 On July 20, 2010, Hutto contacted Hebbard and told her, “[a]fter consultation with legal, 

I think we need to go more directly at the information provided by Tim indicating though [sic] 

Tim ‘didn’t like [Yazdian’s] culture.’” R. 47-9 at 1 (Hutto Email 7/20/10) (Page ID #1986). 

Hutto told Hebbard to find out if Yazdian “feel[s] this way,” and if so, then why. Id. As 

directed, on July 22, Hebbard called Yazdian, but Yazdian raised his voice and made it clear that 

he thought the phone call was “ridiculous.” R. 32 at 101–02 (Hebbard Dep.) (Page ID #375–76). 

According to Hebbard, Yazdian told her that his comments to Sweatt were “taken out of 

context.” Id. at 101 (Page ID #375); R. 47-12 (Hebbard Notes 7/22/10) (Page ID #1994). 

Yazdian describes the phone call differently. He testified that Hebbard never mentioned that she 

was investigating claims of discrimination and, in fact, indicated that he was not allowed to 

complain about Sweatt or Jackson, which he understood to mean that he could not discuss 

Sweatt’s discriminatory conduct. After the telephone conversation, Hebbard closed the 

investigation and filed a report in which she wrote that Yazdian had not mentioned prejudice or 

harassment during their conversation. That was the end of ConMed’s investigation into 

Yazdian’s discrimination complaints. 

 On July 26, 2010, Sweatt, Jackson, Hutto, and Hebbard decided to terminate Yazdian’s 

employment. ConMed maintains that it had to terminate Yazdian’s employment for violating 

ConMed’s conduct policy, “prior behavioral issues, and because when he received his written 

warning, he became combative.” Appellee Br. at 27. Yazdian avers that these reasons are 

pretext because ConMed terminated him in retaliation for his complaints about discrimination 

and because of his ethnic origin and religion. 

 On February 28, 2011, Yazdian filed discrimination and retaliation charges against 

ConMed with the EEOC. After the EEOC issued a probable cause determination in Yazdian’s 

favor, Yazdian filed the instant lawsuit, alleging that ConMed violated Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating and retaliating against him. 

Yazdian amended his complaint to include a claim of unjust enrichment under Ohio law. After 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 9 

discovery, ConMed filed a motion for summary judgment, which the district court granted with 

respect to all claims. 

 Yazdian now appeals the district court’s judgment as to the Title VII discrimination and 

retaliation claims. He does not appeal the district court’s order with respect to his unjustenrichment claim. 

III. TITLE VII

 We review a district court’s grant of summary judgment de novo. Griffin v. Finkbeiner, 

689 F.3d 584, 592 (6th Cir. 2012). When considering whether there is a genuine dispute of 

material fact, we must believe Yazdian’s evidence and draw “all justifiable inferences . . . in his 

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We must abstain from 

making credibility determinations, weighing evidence, and “drawing of legitimate inferences” in 

favor of the moving party because those are “jury functions, not those of a judge.” Id.

A. Retaliation Claim 

 Title VII makes it an “unlawful employment practice” for an employer to “discriminate 

against any individual with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, sex, or national origin.” 

42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits employers from “discriminat[ing] against . . . 

[an] employee . . . because [the employee] has opposed any [unlawful] employment practice, or 

because [the employee] has made a charge” that the employer has engaged in an unlawful 

employment practice. Id. § 2000e-3(a). Yazdian alleges that ConMed violated Title VII by 

terminating him for complaining about Sweatt’s discriminatory conduct. 

A plaintiff who alleges retaliation in violation of Title VII may establish the claim 

through direct or circumstantial evidence. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 

543 (6th Cir. 2008). Yazdian contends that he has introduced both direct and circumstantial 

evidence of retaliation for engaging in protected activity. ConMed argues that Yazdian has 

failed to show that he can meet his burden using either method of proof because he did not 

engage in protected activity. We begin with whether Yazdian opposed an employment practice 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 10 

that he reasonably believed was discriminatory because that question is essential to the viability 

of Yazdian’s retaliation claim. 

 1. Protected Activity 

To come within the protection of Title VII, Yazdian must establish that he challenged an 

employment practice that he reasonably believed was unlawful. Johnson v. Univ. of Cincinnati, 

215 F.3d 561, 580 (6th Cir. 2000). Title VII does not restrict the manner or means by which an 

employee may oppose an unlawful employment practice. See id. (“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.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015). 

Title VII does not protect an employee, however, if his opposition is merely a “vague charge of 

discrimination.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 

1989); see also Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007). Although vague 

complaints do not constitute opposition, “Booker does not . . . require that the plaintiff’s 

complaint be lodged with absolute formality, clarity, or precision.” Stevens v. Saint Elizabeth 

Med. Ctr., Inc., 533 F. App’x 624, 631 (6th Cir. 2013). 

ConMed argues that, under Fox and Booker, Yazdian’s complaints were too vague to 

qualify as opposition to an unlawful employment practice. We disagree. In Fox, we concluded 

that the plaintiff had not engaged in protected activity within the meaning of the Age 

Discrimination in Employment Act (“ADEA”)4

 because the plaintiff’s statements to his manager 

were too vague to “amount to opposition to an unlawful employment practice.” 510 F.3d at 591. 

Fox’s complaints were ambiguous. Fox told his manager that he intended to sue the defendant 

company, that “upper management [was] out to get him,” and that the management had 

“prevented him from becoming a pre sell rep.” Id. at 589–90, 592. He did not once mention that 

he believed that management had discriminated against him on the basis of age. Id. at 592. We 

concluded that these inexact allegations were not sufficient to alert the employer that the plaintiff 

was opposing an unlawful employment practice. Id. 

 4

We analyze the anti-retaliation provisions of the ADEA and Title VII similarly. Fox, 510 F.3d at 591. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 11 

In Booker, the black plaintiff cited two instances of opposition to unlawful employment 

practices. First, he complained that his immediate supervisor had said, when referring to blacks, 

“I don’t know if these people can comprehend asset management.” Booker, 879 F.2d at 1309. 

Second, he wrote a letter to the Human Resources Department in which he alleged that the 

company’s critique of the plaintiff’s management style was “a case of ethnocism.” Id. We 

concluded that neither instance constituted opposition to an unlawful employment practice under 

Title VII. Id. at 1313. We held that the first complaint was limited to an isolated comment by 

one employee, and therefore the plaintiff had not opposed the company’s employment practices. 

Id. And we struggled to understand what exactly the plaintiff meant by alleging that the 

company engaged in “ethnocism.” Id. at 1313 & n.4. For that reason, we held that this vague 

charge was insufficient to notify the employer that the plaintiff was opposing an unlawful 

practice. Id. at 1313. 

Here, however, Yazdian’s complaints were more specifically defined. 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.” 

Appellant Br. at 25. 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. See Nat’l R.R. Passenger Corp. v. 

Morgan, 536 U.S. 101, 115–16 (2002) (internal quotation marks omitted). Thus, an employee 

who complains that an employer is creating a “hostile work environment” engages in Title-VIIprotected activity when the context objectively reveals that the employee is using the expression 

to complain about repeated abusive discriminatory comments or treatment. A reasonable jury 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 12 

could conclude that Yazdian used and intended the phrase “hostile work environment” to 

reference discriminatory treatment because he was aware of the legal significance of the term 

and meant it to be a complaint about national-origin or religious discrimination. 

Just as an employee is entitled to protection for opposition to employment practices that 

may not actually be unlawful under Title VII, Johnson, 215 F.3d at 579–80, an employee who 

opposes a hostile work environment need not prove that the environment he complained of was 

actually hostile in order for the employee to receive protection from retaliation under Title VII. 

Rather, the employee’s complaints about a hostile work environment must “be based on ‘a 

reasonable and good faith belief that the opposed practices were unlawful.’” Id. at 579 (quoting 

EEOC Compliance Manual ¶ 8006). This requirement includes objective and subjective 

components: the employee complaining of a hostile work environment must “actually believe[] 

that the conduct complained of constituted a violation of relevant law,” and “a reasonable person 

in the same factual circumstances with the same training and experience as the aggrieved 

employee” would believe that the conduct complained of was unlawful. Rhinehimer v. U.S. 

Bancorp Invs., Inc., --- F.3d ---, No. 13-6641, 2015 WL 3404658, at *11 (6th Cir. May 28, 2015) 

(internal quotation marks omitted) (interpreting the reasonable-belief requirement of the 

Sarbanes-Oxley Act’s anti-retaliation provision). This two-part inquiry is “necessarily factdependent, varying with the circumstances of the case.” Id. Therefore, “the issue of objective 

reasonableness should be decided as a matter of law only when no reasonable person could have 

believed that the facts known to the employee amounted to a violation or otherwise justified the 

employee’s belief that illegal conduct was occurring.” Id. (internal quotation marks and 

alterations omitted). “[A]n employee need not establish the reasonableness of his or her belief as 

to each element of the violation. Instead, the reasonableness of the employee’s belief will 

depend on the totality of the circumstances known (or reasonably albeit mistakenly perceived) by 

the employee at the time of the complaint, analyzed in light of the employee’s training and 

experience.” Id. Because this inquiry is fact-intensive, has not been briefed, and was not 

addressed in the district court, we leave the question whether Yazdian reasonably believed that 

the work environment was a hostile work environment for consideration by the district court in 

the first instance. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 13 

In addition, 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.” Employers should, of course, investigate complaints like Yazdian’s. But 

Hutto’s response to Yazdian’s assertions is evidence that a reasonable employer would 

understand Yazdian’s comments as opposition to perceived unlawful employment practices. 

There is a strong inference that ConMed read the two complaints together, as well as Yazdian’s 

references to “responding with counsel” or “filing a complaint” against Sweatt as a claim of 

discrimination on the basis of national origin. 

Moreover, in late 2008 and June 2010, Yazdian had complained about discrimination on 

the basis of national origin and religion to Sweatt and Jackson, as well. In addition to these 

statements, Yazdian complained to co-workers about Sweatt’s actions. After receiving the 

Honey Baked Ham Store gift certificate from Sweatt, Yazdian told his co-workers Reggie 

Bryant, John Kruse, and Kara Ticker that he thought the email was discriminatory. Moreover, 

Yazdian asserts that he had complained to Sweatt about a hostile work environment in June 

2009, during the conversation about the Persia article, and also in late 2008. 

ConMed contends that Yazdian did not engage in Title VII-protected activity because he 

“never made a complaint to Human Resources, or to ConMed’s General Counsel or Legal 

Department.” Appellee Br. at 50. But 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. See New Breed, 783 F.3d at 

1067; Johnson, 215 F.3d at 580. 

There is one problem for Yazdian. In Trujillo v. Henniges Automotive Sealing Systems 

North America, Inc., 495 F. App’x 651, 655 (6th Cir. 2012), we said that an employee’s 

complaints “about management practices, rather than . . . [about] racial discrimination” are too 

vague to “constitute opposition to employment discrimination.” Many of Yazdian’s complaints 

may reflect concerns about Sweatt’s management style, rather than charges of discrimination. 

Indeed, the majority of Yazdian’s complaints may pertain to Sweatt’s management style. But we 

do not need to decide whether Yazdian’s complaints solely addressed Sweatt’s management style 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 14 

because, when there are two reasonable ways to read the record, then summary judgment is not 

proper. Yazdian has offered a reasonable alternative explanation regarding his comments, 

namely that he also complained about Sweatt’s discriminatory conduct. Thus, a reasonable jury 

could conclude that Yazdian had engaged in Title-VII protected activity.5

 2. Direct Evidence of Retaliation 

Yazdian argues that he has presented direct evidence that ConMed terminated him 

because he opposed Sweatt’s alleged discriminatory treatment. “Direct evidence is that evidence 

which, if believed, requires no inferences to conclude that unlawful retaliation was a motivating 

factor in the employer’s action.” Imwalle, 515 F.3d at 543–44. If there is direct evidence of 

retaliation, then “the plaintiff’s case-in-chief is met, and the burden shifts to the employer to 

prove by a preponderance of the evidence that it would have made the same decision absent the 

impermissible motive.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346–47 (6th Cir. 

2012) (internal quotation marks and citation omitted). 

 Yazdian cites as direct evidence of retaliation that Sweatt specifically referenced 

Yazdian’s protected statements as examples of insubordination. 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. R. 46-9 at 3–4 (Sweatt Dep. Ex. 23) (Page ID #1913–14). Sweatt 

described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him],” 

as “unprofessional” and “totally unacceptable.” Id. at 3 (Page ID #1913). Sweatt cited the 

incident when Yazdian said to Sweatt, “I guess you don’t like my race either” as an example of 

Yazdian’s alleged “unwillingness to accept and apply constructive coaching.” Id. at 4 (Page ID 

#1914). And, crucially, 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. After Yazdian made these comments, Sweatt told 

Jackson and Hebbard that he was not optimistic about Yazdian’s ability to change “[b]ased on 

 5

Although Yazdian and his counsel call this “race” discrimination, counsel clarified at oral argument that 

Yazdian’s race is “Caucasian,” and he makes no claim that other races were treated differently. Yazdian’s claim 

seems to be rather a claim of national-origin discrimination based upon his Iranian heritage. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 15 

these statements.” R. 44-8 at 2 (Jackson Dep. Ex. 13) (Page ID #1826); R. 39 at 195–96 (Sweatt 

Dep.) (Page ID #1169–70) (emphasis added). Thus, these documents are direct evidence from 

which 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. 

 Moreover, 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. See, e.g., Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (“As 

we have noted, low evaluation scores may be a pretext for discrimination, especially where, as 

here, an employer uses subjective criteria such as ‘attitude’ and ‘teamwork’ to rate its 

employees.”); Xin Liu v. Amway Corp., 347 F.3d 1125, 1136–37 (9th Cir. 2003) (“Where 

termination decisions rely on subjective evaluations, careful analysis of possible impermissible 

motivations is warranted because such evaluations are particularly ‘susceptible of abuse and 

more likely to mask pretext.’” (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990))); 

Ware v. Unified Sch. Dist. No. 492, Butler Cnty., 881 F.2d 906, 912 (10th Cir. 1989), opinion 

modified on denial of reh’g, 902 F.2d 815 (10th Cir. 1990) (“The evidence presented by both 

sides consisted largely of subjective evaluations of body language, tone of voice, facial 

expressions, the nature of the office atmosphere, and other inferences drawn from non-verbal 

conduct. In addition, the testimony as to the content of the critical conversations between Ware 

and Geil was directly conflicting. The weight given such subjective and contradictory evidence 

necessarily depends on an evaluation of the credibility of the witnesses, a function exclusively 

within the province of the jury.” (footnote omitted)). Perception 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. 

Admittedly, there is evidence in the record that lends support for Sweatt’s assertion that 

Yazdian’s behavior was cause for termination. In the warning letter to Yazdian, Sweatt 

referenced Yazdian’s “combativeness,” “rudeness,” “outbursts,” a “loud” and “abusive” tone, 

and “discord,” which suggests that Sweatt’s concerns actually related to Yazdian’s 

communication style, rather than substance. See R. 46-9 at 2–4 (Sweatt Dep. Ex. 23) (Page ID 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 16 

#1912–14). But this is another example of where the appropriate standard of review for 

summary judgment comes into play: we must leave it to a jury to decide whether Sweatt actually 

decided to terminate Yazdian because of Yazdian’s tone or because of his statements. Where, as 

here, there are two reasonable interpretations of the evidence, we must allow the jury to resolve 

the issue of whether the evidence Yazdian cites is sufficient evidence to conclude that ConMed 

retaliated against Yazdian for opposing an unlawful employment practice. See Ahlers v. Schebil, 

188 F.3d 365, 369 (6th Cir. 1999) (“Credibility judgments and weighing of the evidence are 

prohibited during the consideration of a motion for summary judgment . . . .”). 

 3. Circumstantial Evidence of Retaliation 

Yazdian also contends that the grant of summary judgment was improper because he had 

presented circumstantial evidence from which a reasonable jury could find that ConMed 

terminated Yazdian in retaliation for protected activity. Under the burden-shifting framework of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973), Yazdian must first produce 

evidence of a prima facie case of retaliation by showing that “(1) he engaged in protected 

activity”; (2) ConMed was aware that Yazdian had engaged in protected activity; (3) after 

Yazdian engaged in protected activity, ConMed took an “adverse employment action” against 

Yazdian; and (4) “there was a causal connection between the protected activity and the adverse 

employment action.” Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009) (internal 

quotation marks and alterations omitted). The Supreme Court has held that the fourth part of the 

test “requires proof that the unlawful retaliation would not have occurred in the absence of the 

alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

133 S. Ct. 2517, 2533 (2013); EEOC v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) 

(en banc). Nevertheless, at the summary-judgment stage, the “burden to establish a prima facie 

case of retaliation . . . is a burden easily met.” EEOC v. Avery Dennison Corp., 104 F.3d 858, 

861 (6th Cir. 1997). 

If Yazdian has produced enough evidence to make out a prima facie case of retaliation, 

then the burden shifts to ConMed “to produce evidence of a legitimate, nondiscriminatory reason 

for its actions.” Hamilton, 556 F.3d at 435 (internal quotation marks omitted). If ConMed meets 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 17 

that burden of production, then Yazdian must produce evidence “demonstrating that this 

legitimate reason is pretextual.” Id.

 a. Prima Facie Evidence of Retaliation 

 ConMed argues that Yazdian has not met his burden at the prima facie stage because he 

did not engage in protected activity and, even if he did, he would have been fired regardless of 

his complaints about discrimination. Apparently ConMed concedes that it knew of Yazdian’s 

discrimination charge and that termination is an adverse employment action, as it must. Because 

we hold that a reasonable jury could find that Yazdian engaged in protected activity, see Section 

III.A.1, the only remaining issue is whether there is a causal connection between Yazdian’s 

protected activity and his termination. 

 Yazdian relies primarily on the temporal proximity of his complaints and termination. 

“Where an adverse employment action occurs very close in time after an employer learns of a 

protected activity, such temporal proximity between the events is significant enough to constitute 

evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.” 

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). “But where some time 

elapses” between the employee’s protected activity and the adverse employment action, “the 

employee must couple temporal proximity with other evidence of retaliatory conduct to establish 

causality.” Id.; see also Hamilton, 556 F.3d at 435. 

 ConMed became aware that Yazdian had engaged in protected activity on June 1, 2010, 

when, in a comment to Jackson, Yazdian accused Sweatt of creating a hostile work environment. 

Eight weeks later, on July 26, 2010, ConMed terminated Yazdian’s employment. Yazdian has 

coupled the temporal proximity of his protected activity and termination with Sweatt’s email and 

the warning letter, in which Sweatt referred to Yazdian’s comments about a hostile work 

environment and discrimination as insubordination—the same evidence Yazdian cites as direct 

evidence of retaliation. The temporal proximity of Yazdian’s protected activity and his 

termination and these documents in which Sweatt called Yazdian’s protected activity 

inappropriate are evidence that Yazdian’s complaints about discrimination were the but-for cause 

of his termination. Accordingly, Yazdian has produced enough evidence to establish a prima 

facie retaliation claim. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 18 

 ConMed raises one additional issue to consider: the effect of Nassar on our temporalproximity analysis. ConMed argues that applying the temporal-proximity analysis in this case 

conflicts with the Supreme Court’s concern about frivolous employment litigation. In Nassar, 

the Court provided the following hypothetical in support of its conclusion that Title VII requires 

but-for causation analysis: 

Consider in this regard the case of an employee who knows that he or she is about 

to be fired for poor performance, given a lower pay grade, or even just transferred 

to a different assignment or location. To forestall that lawful action, he or she 

might be tempted to make an unfounded charge of racial, sexual, or religious 

discrimination; then, when the unrelated employment action comes, the employee 

could allege that it is retaliation. If respondent were to prevail in his argument 

here, that claim could be established by a lessened causation standard, all in order 

to prevent the undesired change in employment circumstances. 

133 S. Ct. at 2532. ConMed implies that Yazdian complained of national-origin and religious 

discrimination to prevent his impending termination. 

The trouble with ConMed’s assertion is that Yazdian has produced enough evidence from 

which a reasonable jury could conclude that he made multiple complaints about a hostile work 

environment well before he knew that his job was in jeopardy. If ConMed wants to argue that 

Yazdian wrongfully complained about discrimination in order to save his job, then it may make 

that argument to the jury, but we cannot, at the summary-judgment stage, assume “that 

employees who are about to be fired” will “abuse the civil-rights protections by filing frivolous 

harassment complaints.”6

 Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th 

Cir. 2014). 

 b. Pretext 

 Once the plaintiff has made a prima facie case of retaliation, the employer must proffer a 

legitimate, nondiscriminatory reason for its employment decision. Hamilton, 556 F.3d at 435. 

ConMed has asserted legitimate, nondiscriminatory motives for terminating Yazdian’s 

employment—insubordination and “unprofessional behavior.” Appellee Br. at 37–43, 55. 

Yazdian does not argue that ConMed’s proffered reason is illegitimate. Yazdian must therefore 

 6

In Nassar, the Supreme Court addressed whether the evidence of but-for causation presented at trial was 

sufficient to support the jury’s verdict in favor of the plaintiff. See Nassar, 133 S. Ct. at 2524. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 19 

establish that these stated reasons are pretext by producing “enough evidence to . . . rebut, but 

not to disprove [ConMed’s] proffered rationale.” Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 

948, 957 (6th Cir. 2014) (internal quotation marks omitted). He may do this “by showing 

(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate his [termination], or (3) that they were insufficient to motivate discharge.” Chattman, 

686 F.3d at 349 (internal quotation marks omitted). 

Yazdian challenges ConMed’s rationale on the first and second grounds. To show that 

there is no basis in fact for discharge for insubordination and behavior, Yazdian must produce 

evidence to show that he was not insubordinate or rude. See id. “[T]he second category requires 

that [Yazdian] admit the factual basis underlying the employer’s proffered explanation and 

further admit that such conduct could motivate dismissal,” but that a reasonable jury could 

believe that the insubordination and behavioral issues did not actually motivate ConMed’s 

decision to terminate him. Id. (internal quotation marks omitted). 

First, Yazdian argues that a jury should be able to decide whether he was actually 

insubordinate. The district court held that no reasonable jury could find that ConMed’s stated 

legitimate reasons were pretextual because Yazdian had made “objectively rude, disrespectful 

and insubordinate comments.” R. 57 at 23 (D. Ct. Op. & Order) (Page ID #2599). The district 

court erred by making this subjective determination. Sweatt cited Yazdian’s complaints about a 

hostile work environment and discrimination as “out of line,” evidence of Yazdian’s alleged 

“[u]nwillingness to accept and apply constructive coaching,” and evidence that Yazdian would 

not change his behavior. R. 44-8 at 2 (Jackson Dep. Ex. 13) (Page ID #1826); R. 46-9 at 3–4 

(Sweatt Dep. Ex. 23) (Page ID #1913–14). 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.” Kempcke v. Monsanto Co., 132 F.3d 442, 446 (8th Cir. 1998). 

Moreover, not all “insubordination” is treated equally. We have long held that an 

employer has legitimate cause to discipline or terminate an employee who refuses to follow 

through on an employer’s expressed directions. See, e.g., Fullen v. City of Columbus, 514 F. 

App’x 601, 606 (6th Cir. 2013); Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008). 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 20 

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. 

The trouble for Yazdian, however, is that Sweatt cited comments other than complaints 

of discrimination as evidence of insubordination. For example, Yazdian allegedly called Sweatt 

a “bad individual” and not “a gentlem[a]n,” and also said that Sweatt “make[s] inappropriate 

business decisions.” R. 44-8 at 2 (Jackson Dep. Ex. 13) (Page ID #1826). It is a stretch to argue 

that these comments are appropriate in the workplace in isolation or are illegitimate grounds for 

termination. On the other hand, Yazdian made these comments during the same conversation 

that he told Sweatt that he was going to file a complaint, which is to say that Yazdian’s 

complaints about Sweatt’s management style were intertwined with Yazdian’s concerns about a 

hostile work environment. Moreover, Yazdian has offered some evidence to undermine Sweatt’s 

and Jackson’s description of Yazdian’s behavior. Reggie Bryant, a former ConMed territory 

manager, submitted an affidavit in which he contests Sweatt’s description of Yazdian’s behavior 

as rude. Because a reasonable jury could find that Yazdian was not insubordinate, we hold that 

summary judgment is not proper. 

Yazdian also argues that a jury could find that ConMed’s proffered reason for the adverse 

employment action was pretextual because Yazdian’s alleged insubordination did not actually 

motivate his termination. He cites two reasons as support. First, Sweatt repeatedly cited 

Yazdian’s protected comments as evidence of unacceptable behavior. Second, Sweatt’s and 

Jackson’s complaints about Yazdian’s tone and behavior surfaced only after Yazdian started 

complaining that Sweatt was creating a hostile work environment. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 21 

We have thoroughly addressed the first point, so we turn to the second. ConMed cites 

evidence that it critiqued Yazdian for his communication style before he engaged in protected 

activity. According to Sweatt, Yazdian’s previous supervisors, Rick Zaberer and Dennis 

Werger, described Yazdian as “very capable,” but “a challenge to manage.” R. 39 at 42 (Sweatt 

Dep.) (Page ID #1016). Jackson also remembered that Werger mentioned that Yazdian had 

“some behavioral challenges,” but he could not recall the specific concerns. R. 42 at 64–65 

(Jackson Dep.) (Page ID #1602–03). Both Sweatt and Jackson described Yazdian as difficult to 

manage. The main “behavioral issues” that Sweatt and Jackson cited were self-centeredness, 

negativity, rudeness, and defensiveness. And the record shows that Sweatt discussed these 

behavioral issues with Yazdian as early as April 2009 and up until Yazdian’s termination. See, 

e.g., R. 37-1 at 1 (Yazdian Dep. Ex. 7) (Page ID #953) (“I expect you to be positive with [Kara] 

about Marketing and Management.”); R. 39-1 at 9 (Sweatt Dep. Ex. 10) (Page ID #1238) (“Too 

often your messages are negative, self-centered, and redundant. Without immediate correction, 

this behavior will affect the Southeast District for which I am responsible.”). Jackson also 

testified that Yazdian had been rude to him during a sales meeting in October 2009. 

Even though Sweatt and Jackson had cautioned Yazdian about his communication style, 

they were not clear with Yazdian that these behavioral issues might lead to his termination. In 

Yazdian’s 2009 performance appraisal, Sweatt rated Yazdian’s performance as “good” or “very 

good” in all categories, including “attitude and cooperation,” “communications,” and 

“interpersonal relationships.” See R. 46-4 at 2–6 (2009 Performance Appraisal) (Page ID 

#1890–93). Sweatt noted that Yazdian’s communications could be “overly negative” when 

frustrated, but did not provide any suggestion that this was a major concern. Id. at 4 (Page ID 

#1892). 

Finally, the evidence of Yazdian’s communication problems cuts against ConMed’s 

claim that Yazdian would have been fired regardless of his complaints. A jury could reasonably 

conclude that Yazdian’s behavior was not so bad as to warrant termination because Yazdian 

consistently performed well, and his behavior became a problem only after Yazdian complained 

that Sweatt was creating a hostile work environment. A jury could also decide that Sweatt was 

monitoring Yazdian’s behavior and that Yazdian’s failure to improve was the actual reason for 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 22 

the adverse employment action. Because there are two reasonable interpretations, and because 

we must accept the version most favorable to Yazdian, which is sufficient evidence of pretext, 

summary judgment is not appropriate here. 

 c. The Honest Belief Doctrine 

 ConMed asserts that it had an “honest belief” in its nondiscriminatory reason for firing 

Yazdian, namely that Yazdian had “breached ConMed’s conduct policy.” Appellee Br. at 41–

43. ConMed may “avoid a finding that its claimed nondiscriminatory reason was pretextual” if it 

establishes that it “reasonabl[y] reli[ed] on the particularized facts that were before it at the time 

the decision was made,” even if evidence later shows that the reason was baseless. Wright v. 

Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (citation and internal quotation marks 

omitted). ConMed must show that it “made a reasonably informed and considered decision 

before taking an adverse employment action.” Id. (citation and internal quotation marks 

omitted). 

ConMed does not enjoy this protection, however, if Yazdian produces evidence sufficient 

to allow a jury to conclude reasonably “that the employer failed to make a reasonably informed 

and considered decision before taking its adverse employment action . . . .” Id. (citation 

omitted). Yazdian argues that we should not pay credence to ConMed’s asserted “honest belief” 

because ConMed did not conduct an investigation into Sweatt’s stated reason for the decision to 

terminate Yazdian or Yazdian’s discrimination claim. We agree. 

 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 

Jackson, Sweatt, and Hebbard 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. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 23 

 Moreover, if we take the facts in the light most favorable to Yazdian, as we must, then 

there is evidence in the record that ConMed did not afford Yazdian the opportunity to file a 

discrimination complaint even though it was aware that he planned to file one. Yazdian testified 

that Hebbard told him that he could not complain about Sweatt when she called him to discuss 

his allegations of discrimination, and therefore he did not address his discrimination claims 

during the phone call. This is particularly problematic because the record indicates that Sweatt 

was the person most instrumental in the decision to terminate Yazdian. Indeed, ConMed appears 

to have made the decision to terminate Yazdian entirely based on Sweatt’s description of the 

phone call with Yazdian. “One conversation [does] not establish sufficient particularized facts 

about the truth behind [Sweatt’s] statements, let alone [his] motive.” Shazor, 744 F.3d at 961. 

Thus, a reasonable jury could find that ConMed’s belief in the reason for Yazdian’s termination 

was not honestly held because ConMed did not investigate Yazdian’s discrimination complaint 

and blindly followed Sweatt’s recommendation to terminate Yazdian. 

B. Discrimination Claim 

 Yazdian also alleges that ConMed violated Title VII because of his Iranian heritage and 

Muslim religion.7 Yazdian does not claim that there is direct evidence of discrimination, and 

therefore relies on the McDonnell Douglas burden-shifting analysis to develop his discrimination 

claim. Under that framework, like the retaliation claim, “[t]he burden is first on [Yazdian] to 

demonstrate a prima facie case of [national-origin] discrimination; it then shifts to the employer 

to offer a legitimate, nondiscriminatory explanation for its actions; finally, the burden shifts back 

to the plaintiff to show pretext—i.e. that the employer’s explanation was fabricated to conceal an 

illegal motive.” Chen v. Dow Chem.Co., 580 F.3d 394, 400 (6th Cir. 2009). 

 1. Prima Facie Evidence of Discrimination 

To make a prima facie case of national-origin discrimination, Yazdian must show “1) that he was 

a member of a protected class; 2) that he was discharged; 3) that he was qualified for the position 

held; and 4) that he was replaced by someone outside of the protected class.” Griffin, 689 F.3d 

at 592 (internal quotation marks omitted). ConMed relies on a slightly different formulation of 

 7

Yazdian uses the term “race discrimination,” but we understand his claim to actually relate to his national 

origin, not his race. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 24 

the fourth factor: “that a similarly situated employee outside the protected class or classes was 

treated more favorably than [Yazdian].” Appellee Br. at 35 (quoting Younis v. Pinnacle Airlines, 

Inc., 610 F.3d 359, 363 (6th Cir. 2010)). ConMed uses this formulation to argue that Yazdian 

has not introduced evidence that there were “non-Iranian, non-Muslim Territory Manager[s] with 

a similar pattern of belligerent behavior” whom ConMed did not discipline or terminate. 

Appellee Br. at 37. But our cases establish that the plaintiff may establish a prima facie case 

under either theory. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1247 (6th Cir. 1995), 

overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). ConMed’s 

argument is therefore without merit. 

The district court assumed without deciding that Yazdian had satisfied the burden of 

showing a prima facie case, but granted summary judgment in ConMed’s favor on the basis that 

Yazdian could not show that the nondiscriminatory reason for the termination was pretext for 

national-origin discrimination. The record shows that Yazdian was qualified, discharged, and a 

member of a protected class. In addition, ConMed replaced Yazdian with Tyler Saneholtz, a 

non-Muslim, non-Iranian man. We therefore hold that Yazdian has met his initial burden of 

establishing a prima facie case of discrimination on the basis of national origin and religion. 

 2. Pretext 

 ConMed offers the same legitimate, nondiscriminatory reasons for Yazdian’s termination 

that it offered in response to his retaliation claim: insubordination and bad behavior. The district 

court held that Yazdian had not produced evidence from which a reasonable jury could conclude 

that this reason was pretextual because the evidence of discrimination was “trivial.” R. 57 at 16 

(D. Ct. Op. & Order) (Page ID #2592). We agree. 

 Yazdian offers four reasons to believe ConMed terminated his employment because of 

his national origin and religion. First, he argues that the Honey Baked Ham Store gift certificate 

and accompanying email demonstrate that Sweatt treated Yazdian differently because of his 

religion. Sweatt bought the gift certificates for all territory managers, and therefore the record is 

clear that Sweatt actually treated Yazdian and his co-workers identically. We recognize that the 

gift may have been slightly insensitive, but Sweatt attempted to minimize the potential that the 

gift would cause offense by pointing out that Honey Baked Ham Stores sell non-pork products. 
No. 14-3745 Yazdian v. ConMed Endoscopic Tech, Inc. Page 25 

This incident is not enough for a reasonable jury to infer that ConMed terminated Yazdian 

because he is Muslim. 

 Second, Yazdian argues that Sweatt singled Yazdian out because of his Iranian heritage 

and religion when Sweatt gave Yazdian a National Geographic article about ancient Persia. 

Sweatt stated that he gave all his territory managers articles about topics they might find 

interesting and thought Yazdian would find the article interesting because he was proud of his 

Persian heritage. Yazdian has not offered any evidence to suggest that Sweatt’s stated 

motivation for passing along the article was motivated by a negative animus against Iranians or 

Muslims, and so this evidence does not rebut ConMed’s nondiscriminatory explanation for 

Yazdian’s termination. 

 The final two incidents relate to how Sweatt treated Yazdian differently from nonIranian, non-Muslim territory managers. Yazdian contends that Sweatt showed favoritism 

toward John Kruse and Pat O’Brien, white, non-Muslim men. Specifically, Yazdian points to the 

fact that Sweatt told Kruse that Kruse would not receive an award several days before delivering 

the same news to Yazdian. Yazdian also claims that evidence that Sweatt encouraged Pat 

O’Brien, but not Yazdian, to apply for a promotion is evidence of Sweatt’s animus against 

Iranians and Muslims. But Yazdian has not cited any evidence to suggest that national origin or 

religion factored into Sweatt’s decisionmaking in any way. Although different treatment may 

serve as the basis to make a prima facie case of discrimination, it cannot also be enough to 

satisfy the burden of demonstrating pretext. 

 Yazdian simply has not presented evidence from which a reasonable jury could find that 

ConMed’s stated reason for terminating Yazdian was pretext for discrimination. Therefore, the 

district court did not err by granting summary judgment in ConMed’s favor on the discrimination 

claim. 

IV. CONCLUSION

 For the foregoing reasons, we REVERSE the judgment and REMAND the case to the 

district court for further proceedings with respect to Yazdian’s retaliation claim and AFFIRM

the judgment with respect to the discrimination claim.