Bazzi v. FCA US LLC

Filing 20

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S 13 MOTION FOR SUMMARY JUDGMENT Signed by District Judge Linda V. Parker. (AFla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALI BAZZI,
Plaintiff,
v.

Case No. 23-cv-10097
Honorable Linda V. Parker

FCA US LLC,
Defendant.
________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This lawsuit arises from Plaintiff Ali Bazzi’s employment with Defendant
FCA US LLC (“FCA”). In a three-count Complaint filed on January 12, 2023, Mr.
Bazzi alleges national origin discrimination by FCA in violation of: (I) 42 U.S.C.
§ 1981; 1 (II) Title VII of the Civil Rights Act of 1964 (“Title VII”); and (III)
Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”). The matter is presently
before the Court on FCA’s motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56, which has been fully briefed. (ECF Nos. 13, 15, 16.) Mr.
Bazzi also filed a notice of supplemental authority (ECF No. 17), to which FCA
responded (ECF No. 19). Finding the facts and legal arguments adequately

1

For this claim, Mr. Bazzi also lists “ethnicity” as a basis for discrimination.

presented in the parties’ briefs, the Court dispenses with oral argument pursuant to
Eastern District of Michigan Local Rule 7.1(f).
I.

Summary Judgment Standard
Summary judgment pursuant to Rule 56 is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The central inquiry is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant meets this burden, “[t]he party opposing the motion must show that
‘there is a genuine issue for trial’ by pointing to evidence on which ‘a reasonable
jury could return a verdict’ for that party.” Smith v. City of Toledo, 13 F.4th 508,
514 (6th Cir. 2021) (quoting Liberty Lobby, 477 U.S. at 248). The non-movant’s
evidence generally must be accepted as true and “all justifiable inferences” must be
drawn in the non-movant’s favor. Liberty Lobby, 477 U.S. at 255.
II.

Factual Background
Mr. Bazzi, who was born in Kuwait and immigrated to the United States as a

teenager, began working at FCA in 1993. (ECF No. 13-4 at PageID. 131, 138.) As
2

an FCA employee, Mr. Bazzi was represented by the International Union, United
Automobile Aerospace and Agriculture Implement Workers of America (hereafter
“union”). Throughout his employment, Mr. Bazzi has worked at FCA’s Warren
Truck Assembly Plant (“WTAP”). (Id. at PageID. 138.)
Since 2014, Mr. Bazzi has endured regular harassment by co-workers based
on his Middle Eastern origin, which he has reported to FCA. (See generally ECF
No. 1; ECF No. 13 at PageID. 81-85.) While Mr. Bazzi describes some of this
harassment in his Complaint, he indicates that his present claims arise only from an
incident on September 15, 2020, and his resulting discipline. (See ECF No. 13-4 at
PageID. 151; ECF No. 15 at PageID. 459, 471.)
On September 15, Mr. Bazzi found his work area blocked by a cart of
precariously stacked tools. (ECF No. 13-23 at PageID. 336.) When Mr. Bazzi
moved the cart to access his work area, some of the items fell. (Id.) After
returning the items to the cart, Mr. Bazzi sat down at his work area. (Id.)
According to Mr. Bazzi, a co-worker, Jason Falleti (a/k/a “Rocco”), then
began making comments to Mr. Bazzi, stating that Mr. Bazzi destroys things and
causes problems in the department. (Id.) After Mr. Falleti approached Mr. Bazzi’s
work bench and began “saying other stuff,” the two men began to argue and curse
at one another. (Id.; see also ECF No. 13-4 at PageID. 142.) Other co-workers
joined in the argument on Mr. Falleti’s side and started calling Mr. Bazzi a “liar”
3

and the “F word.” (ECF No. 13-25 at PageID. 342.) In response, Mr. Bazzi called
his co-workers “white supremacists.” 2 (ECF No. 13-4 at PageID. 141; see also
ECF No. 13-18 at PageID. 321.) Mr. Bazzi has explained that he was “crying out”
for “help” to his manager, who was standing nearby, and to let the manager know
that he was “tired of this racial discrimination.” (ECF No. 13-4 at PageID. 141;
see also ECF No. 15-8 at PageID. 583.)
The next day, FCA suspended Mr. Bazzi pending an investigation. (ECF
No. 15-6 at PageID. 557.) After an investigation, FCA concluded that Mr. Bazzi
had violated company policy by calling Mr. Falleti a white supremacist,
specifically Policy 3-6, titled “Discrimination and Harassment Prevention.” (See
ECF No. 13-21 at PageID. 332.) Policy 3-6 prohibits harassment and
discrimination in the work environment. (See ECF No. 13-3.) FCA’s Labor
Representative, Sharta Burston, who investigated the incident, determined that Mr.
Bazzi’s use of the term “white supremacist” was “derogatory” because it
“identified race.” (ECF No. 15-8 at PageID. 583, 586.) On October 16, 2020,
FCA terminated Mr. Bazzi, effective immediately, as a result of this conduct. (ECF
No. 13-24.)

Mr. Falleti and other witnesses to the incident reported that Mr. Bazzi directed his
comment to Mr. Falleti and yelled, “You’re a white supremacist.” (See ECF No.
13-21 at PageID. 331-32.) The Court takes Mr. Bazzi’s version as true for
purposes of FCA’s motion. See Liberty Lobby, 477 U.S. at 255.
4
2

The union filed a grievance, claiming that Mr. Bazzi was unjustly discharged
in violation of the collective bargaining agreements between the union and FCA.
(ECF No. 13-22 ag PageID. 334.) FCA initially denied the grievance. (Id.) A
negotiated resolution of the grievance (“Disposition”) subsequently was reached
before the FCA and union Appeal Board on March 22, 2021, resulting in the
conversion of Mr. Bazzi’s termination to a suspension without pay. (ECF No. 1328.) The Appeal Board is comprised of two union representatives and two FCA
representatives. (ECF No. 15-11 at PageID. 645 § 28(a).)
The Disposition reads:
In full and complete settlement of this case, the grievant will be
reinstated in accordance with his seniority provided he can meet
normal reinstatement requirements, including a physical.
Upon reinstatement the grievant’s termination will be converted to a
suspension. The company agrees to submit for eligible 2020 profit
sharing paid in 2021. The grievant will not receive any back pay of
wages, health care, or any other benefits for the period during which
he was away from the facility.
All contractual grievances, charges, claims, and/or complaints that
were filed or that could have been filed that concern this termination
of employment are resolved.
This agreement of the Appeal Board shall form no basis or precedent
for a decision or settlement in any other case.
(ECF No. 13-28.) The Appeal Board’s four members signed the Disposition. (Id.)
Mr. Bazzi did not, and he did not see it before he returned to work. (Id.; ECF No.
13-4 at PageID. 148.)
5

After being informed of the Disposition, Mr. Bazzi asked his union
representative about his right to back pay. (ECF No. 13-4 at PageID. 148.) The
union representative told Mr. Bazzi that her job was limited to getting him back to
work under the contractual grievance. (Id.) Mr. Bazzi explained during his
deposition in this case that the union “only deal[s] with contractual violation[s] and
grievances.” (Id.) The union representative also told Mr. Bazzi that he could
pursue back pay “on the outside,” which he understood to mean through the Equal
Employment Opportunity Commission (“EEOC”) or a lawsuit. (Id.)
Mr. Bazzi had filed an EEOC Charge of Discrimination on October 2, 2020,
after he was suspended without pay. (See ECF No. 13-25.) In the section of the
charge reflecting the “cause of discrimination based on,” Mr. Bazzi checked the
“retaliation” and “national origin” boxes. (Id.) In the narrative section, he
described discrimination beginning in 2014, when FCA placed workers from
another plant in his department, through the incident on September 15, 2020. (Id.)
In an “amended” charge filed on January 18, 2021, Mr. Bazzi checked only
the “retaliation” box, and he described additional discriminatory conduct he
experienced at FCA. (ECF No. 1 at PageID. 18.) After receiving a Notice of Right
to Sue from the EEOC, Mr. Bazzi filed the current lawsuit.
Mr. Bazzi has continued to work at FCA since he returned to his job on April
26, 2021. In addition to the wages he did not receive during his almost seven6

month suspension, Mr. Bazzi claims he lost benefits, pension earnings, a bonus,
seniority, the ability to apply for promotion, and his established shift and location.
(ECF No. 1 at PageID. 6-7 ¶ 25.)
III.

FCA’s Arguments & Mr. Bazzi’s Response
FCA maintains that Mr. Bazzi’s § 1981 claim fails as a matter of law because

the statute only prohibits race discrimination. Mr. Bazzi fails to address this
argument in response to FCA’s motion. Therefore, the Court deems the claim
waived. See United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001) (quoting
United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)) (explaining that “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”); Slater v. Potter, 28 F. App’x 512, 513 (6th
Cir. 2002) (citing United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
FCA also argues that many of the incidents described in Mr. Bazzi’s
Complaint are time-barred either under the six-month limitations period in his
employment contract or by statute. As FCA acknowledges, however, this argument
does not apply to Mr. Bazzi’s claims arising from his discipline in September and
October 2020. This discipline is the only action on which his current claims are
based.
As to those claims, FCA asserts that they are barred by the “grievance
settlement” which allowed Mr. Bazzi to be reinstated. Mr. Bazzi disagrees, arguing
7

that the Appeal Board Disposition only resolved the union’s contractual grievance
and not any non-contractual claims. Mr. Bazzi maintains that he did not waive his
Title VII or any other statutory claims as a result of the Disposition.
FCA argues, as well, that Mr. Bazzi cannot demonstrate the elements
required to prove his Title VII and ELCRA discrimination claims. The Court
elaborates on FCA’s arguments and Mr. Bazzi’s response below.
IV.

Applicable Law & Analysis
A.

Whether the Disposition Bars Mr. Bazzi’s Title VII & ELCRA
Claims

The Sixth Circuit has found “that under particular circumstances employers
and employees may negotiate a valid release of . . . Title VII claims.” Moore v.
Coca-Cola Bottling Co. Consol., 113 F.4th 608, 617-18 (6th Cir. 2024) (quoting
Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995)). When deciding
whether employees validly waived their rights, courts apply “federal common law”
and “ordinary contract principles.” Id. at 618 (brackets and citations omitted). The
court must “remain[] alert to ensure that employers do not defeat the policies
of . . . Title VII by taking advantage of their superior bargaining position or by
overreaching.” Adams, 67 F.3d at 583. Several factors are relevant to deciding
whether a release was knowingly and voluntarily executed: “(1) the plaintiff’s
experience, background, and education; (2) the amount of time the plaintiff had to
consider whether to sign the waiver, including whether the employee had an
8

opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration
for the waiver; as well as (5) the totality of the circumstances.” Moore, 113 F.4th
at 618 (quoting Adams, 67 F.3d at 583) (brackets omitted).
Mr. Bazzi argues in his response brief that, according to the plain language
of the Disposition, only his contractual disputes against the FCA were waived. The
Disposition in fact reads: “All contractual grievances, charges, claims, and/or
complaints . . . are resolved.” (ECF No. 15-10 at PageID. 605 (emphasis added).)
While there is no general grammatical rule that an adjective at the start of a list
qualifies all items in the list, the language of the Disposition suggests that that was
intended here.
First, the only grievances the Appeal Board has the power to decide are
those that are contractual. (See ECF No. 15-11 at PageID. 646 § 29.) Thus, “all
contractual” is superfluous unless it also defines “charges, claims, and complaints.”
Similarly, because the Appeal Board lacks authority over disputes asserting an
employee’s statutory rights, it is restricted to deciding contractual “charges,
claims, or complaints.”
This interpretation is bolstered by the last paragraph of the Disposition
providing that it “form[s] no basis or precedent for a decision or settlement in any
other case.” (ECF No. 15-10 (emphasis added).) The fact that Mr. Bazzi did not
sign and was not required to sign the Disposition also reflects that it resolved only
9

a dispute between the union and FCA, and not any independent claims, charges, or
complaints that Mr. Bazzi had regarding his termination. Mr. Bazzi was expressly
advised that he retained the right to pursue his individual statutory rights.
FCA does not attempt to interpret the Disposition in its initial brief
supporting its summary judgment motion. (See ECF No. 13 at PageID. 89-91.)
Instead, FCA begins its waiver argument from the assumption that the Disposition
applies to Mr. Bazzi’s pending statutory claims. (Id.) While Mr. Bazzi argues in
response that the plain language of the Disposition did not waive his rights to
pursue his statutory claims elsewhere, FCA neglects to address that argument in
reply. (See ECF No. 16.) Therefore, the issue is waived. See, e.g., Crozier, 259
F.3d at 517 (quoting Layne, 192 F.3d at 566).
For the reasons discussed, the Court finds that the Disposition does not bar
Mr. Bazzi from pursuing his statutory rights. It, therefore, is unnecessary to decide
whether any waiver was knowing and voluntary under the relevant factors.
B.

Whether Mr. Bazzi Can Demonstrate the Elements of His Title
VII and ELCRA Claims

As Mr. Bazzi makes clear in his response brief, the only claims he is alleging
here are retaliation in violation of Title VII and the ELCRA. FCA argues in reply
that, throughout these proceedings, Mr. Bazzi has alleged discrimination and not
retaliation, and it is too late for him to now recast his claims under a retaliation
theory. But retaliation is simply “another form of intentional discrimination.” See
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Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005) (explaining that
“[r]etaliation is, by definition, an intentional act. It is a form of ‘discrimination’
because the complainant is being subjected to differential treatment”); Univ. of Tex.
S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 363 (2013) (Ginsburg, J., dissenting)
(explaining that “Title VII also makes it an ‘unlawful employment practice’ to
discriminate against any individual ‘because’ the individual has complained of,
opposed, or participated in a proceeding about prohibited discrimination” and
“[t]his form of discrimination is commonly called ‘retaliation,’ although Title VII
does not use that term”) (quoting 42 U.S.C. § 2000e-3(a)) (emphasis added).
In any event, Mr. Bazzi clearly alleges in his Complaint that FCA terminated
him for “opposing discrimination.” (See ECF No. 1 at PageID. 10 ¶¶ 45, 51
(“Defendant illegally terminated Plaintiff for asserting his rights under [Title
VII/ELCRA], opposing discrimination, complaining about discrimination and
contesting unlawful employment practices under [Title VII/ELCRA].”) Further, he
checked the box for “retaliation” on his EEOC charges (ECF No. 1 at PageID. 18;
ECF No. 13-25), described being suspended and terminated for “protesting the
ongoing discrimination” in the parties’ “Rule 26 Joint Case Management
Report/Proposed Discovery Plan” (ECF No. 7 at PageID. 44), and testified at his
deposition that he believes he “was illegally terminated because [he] was

11

complaining about . . . getting harassed and discriminated against” (ECF No. 13-4
at PageID. 130).
FCA had “fair notice” of Mr. Bazzi’s retaliation claims. 3
1.

Legal Standards for Proving Retaliation

Title VII and the ELCRA prohibit discrimination against employees because
they have engaged in conduct protected by those statutes. See 42 U.S.C. § 2000e–
3(a); Mich. Comp. Laws § 37.2701(a). The Sixth Circuit has provided that the
legal standard for a retaliation claim under these statutes is identical. See Jackson
v. Genesee Cnty. Road Comm’n, 999 F.3d 333, 344 n.1 (6th Cir. 2021) (citing
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012)).
“[A] Title VII [or ELCRA] retaliation claim can be established ‘either by
introducing direct evidence of retaliation or by proffering circumstantial evidence
that would support an inference of retaliation.’” Laster . City of Kalamazoo, 746
Mr. Bazzi argues that because FCA did not move for summary judgment on his
retaliation claims in its opening brief, those claims “must be set for trial before a
jury.” (ECF No. 15 at PageID. 477.) Although, as discussed, FCA had notice of
those claims before it moved for summary judgment, FCA did wait until its reply
brief to assert its arguments for why it is entitled to summary judgment with
respect to those claims. Generally, arguments raised “for the first time in a reply
brief are waived.” Bormuth v. Cnty. of Jackson, 870 F.3d 494, 500 (6th Cir. 2017)
(quoting Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010)). Nevertheless,
FCA always could move to file a second summary judgment motion or move at
trial for a directed verdict if there is no factual or legal support for the claims.
Thus, for expediency and the preservation of judicial and legal resources, the Court
will proceed to analyze FCA’s arguments with respect to Mr. Bazzi’s retaliation
claims notwithstanding the procedural defect.
12

3

F.3d 714, 730 (6th Cir. 2014) (quoting Imwalle v. Reliance Med. Prods., Inc., 515
F.3d 531, 538 (6th Cir. 2008)). “Direct evidence is that evidence which, if
believed, requires the conclusion that unlawful retaliation was a motivating factor
in the employer’s action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.
2003) (citing Laderach v. U-Haul of N.W. Ohio, 207 F.3d 825, 829 (6th Cir. 2000)).
“Direct evidence proves the existence of a fact without any inferences or
presumptions.” Id. (quotation marks, citation, and brackets omitted).
When a plaintiff presents direct evidence of a retaliatory intent, “the burdens
of production and persuasion shift to the employer to prove” that it would have
taken the adverse action against the plaintiff even if it had not been motivated by
an impermissible motivation. See Taylor v. Bd. of Educ. of Memphis City Schs.,
240 F. App’x 717, 720 (6th Cir. 2007) (quoting Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000)); see also Demyanovich v. Cadon Plating &
Coatings, LLC, 747 F.3d 419, 432 (6th Cir. 2014) (quoting Weigel v. Baptist Hosp.
of E. Tenn., 302 F.3d 367, 382 (6th Cir. 2002)) (explaining that if the plaintiff
presents direct evidence of retaliation, “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.”). Absent direct evidence, the burden-shifting
framework outlined in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802-04 (1973), applies.
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Under this framework, the plaintiff first carries the burden of establishing a
prima facie case of retaliation. Id. at 802. The plaintiff must show: “(1) he
engaged in activity protected by Title VII; (2) his exercise of such protected
activity was known by the defendant; (3) thereafter, the defendant took an action
that was ‘materially adverse’ to the plaintiff; and (4) a causal connection existed
between the protected activity and the materially adverse action.” Laster, 746 F.3d
at 730 (quotation marks and citation omitted). “Title VII retaliation claims ‘must
be proved according to traditional principles of but-for causation,’ which ‘requires
proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.’” Id. at 730-31 (quoting
Nassar, 570 U.S. at 362).
If the plaintiff demonstrates a prima facie case of retaliation, “the burden of
production shifts to the employer to articulate some legitimate, non-[retaliatory]
reason for its actions.” Laster, 746 F.3d at 730. If the employer makes such a
showing, the burden returns to the plaintiff to show that the “proffered reason was
not the true reason for the employment decision.” Id. (citing Dixon v. Gonzalez,
481 F.3d 324, 333 (6th Cir. 2007)). “Although the burden of production shifts
between the parties, the plaintiff bears the burden of persuasion through the
process.” Id. (citing Dixon, 481 F.3d at 333).

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2.

The Parties’ Arguments

Mr. Bazzi maintains that “[t]his is the rare case where direct evidence” exists
to demonstrate retaliation. He argues that he “engaged in protected activity when
he opposed racism by identifying the racism as it was happening to him . . . he
called out ‘white supremacist’ in front of management personnel as a ‘cry for help’
to get assistance when he felt attacked by [Mr.] Falleti as he had been attacked by
other employees in the past due to his national origin.” (ECF No. 15 at PageID.
475.) During FCA’s investigation of the incident, Mr. Bazzi explained that this
was what he had been doing when he used the term “white supremacist.” (ECF
No. 15-5 at PageID. 554.) Thus, Mr. Bazzi argues, FCA was aware that he was
identifying and opposing discrimination based on his national origin. (Id. at
PageID. 476.) FCA admittedly then terminated Mr. Bazzi for this conduct. (Id.
(citing ECF No. 15-8 at PageID. 582).)
For the same reasons, Mr. Bazzi argues that he can demonstrate a prima
facie case of retaliation: (1) he engaged in protected activity; (2) FCA was aware
that he did so; (3) FCA suspended and then terminated him for engaging in that
protected activity; and (4) FCA admits that the cause of the adverse action was that
activity.
FCA argues in reply that this is not a direct evidence case because “evidence
of discrimination is not considered direct evidence unless a racial motivation is
15

explicitly expressed.” (ECF No. 16 at PageID. 825 n.3 (quoting Amini v. Oberlin
Coll., 440 F.3d 350, 359 (6th Cir. 2006)).) FCA further argues that, to be direct
evidence, “the evidence in question must ‘lead ineluctably to the conclusion’ that
the unlawful consideration played a role in the decision at issue.” (Id. (quoting
Amini, 440 F.3d at 359).) FCA asserts that it disciplined Mr. Bazzi because he
violated Policy 3-6, not due to an improper motivation.
As to Mr. Bazzi’s ability to demonstrate a prima facie case of retaliation,
FCA argues that he cannot satisfy two of the required elements: that he engaged in
protected conduct and that the protected conduct was a significant factor in FCA’s
decisions. Specifically, FCA argues that Mr. Bazzi did not engage in protected
conduct by calling Mr. Falleti a white supremacist and this “derogatory
comment . . . violated [FCA]’s Policy 3-6 and therefore caused [Mr. Bazzi] to lose
protection under the law.” Further, FCA argues that it disciplined Mr. Bazzi
“because [he] violated the discrimination and harassment policy by making a
racially derogatory comment to his coworker, not because of a purported complaint
about discrimination.” FCA asserts that Mr. Bazzi cannot demonstrate that this
legitimate reason for his discipline was a pretext for retaliation.

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3.

Analysis
1.

Whether Mr. Bazzi Engaged in Protected Conduct

The Court begins with the question of whether Mr. Bazzi engaged in
protected activity when he used the term “white supremacist.”
Under Title VII’s opposition clause, it is unlawful for “an employer to
discriminate against any of his employees . . . because [the employee] has opposed
any practice made an unlawful employment practice by this subchapter . . ..” 42
U.S.C. § 2000e-3(a). Similarly, the ELCRA states that one shall not “[r]etaliate or
discriminate against a person because the person has opposed a violation of this
act.” Mich. Comp. Laws § 37.2701(a). Neither statute defines “opposed” as used
in their opposition clauses. See 42 U.S.C. §§ 2000e, 2000e-3; Mich. Comp. Laws
§§ 37.2202, .2701. Caselaw and EEOC guidance provide clarification, however.
The Supreme Court has explained that “ ‘opposed’ . . . carries its ordinary
meaning: to resist or antagonize . . .; to contend against; to confront; resist;
withstand.” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S.
271, 276 (2009) (quoting Webster’s New Int’l Dictionary 1710 (2d ed. 1957)).
Relying on the EEOC’s interpretation of the opposition clause, the Supreme Court
has further explained that “[w]hen an employee communicates to [his or] her
employer a belief that the employer has engaged in a form of employment
discrimination, that communication virtually always constitutes the employee’s
17

opposition to the activity.” Id. at 276 (cleaned up); see also EEOC v. New Breed
Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (instructing that “great deference”
must be afforded to the EEOC’s interpretation of what constitutes opposing
conduct). The Sixth Circuit has expressed that the definition of the term is
“expansive[.]” New Breed Logistics, 783 F.3d at 1067.
The Sixth Circuit has added that “[t]o come within the protection of Title
VII,” the plaintiff must show that he or she “challenged an employment practice
that [the plaintiff] reasonably believed was unlawful,” even if that belief is
incorrect. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645-46 (6th
Cir. 2015). The complaint may be directed “to anyone (management, unions, other
employees, or newspapers),” and it need not “be lodged with absolute formality,
clarity, or precision.” Jackson, 999 F.3d at 344-45 (citations omitted). However,
“the plaintiff must allege more than a ‘vague charge of discrimination.’” Id. at 345
(quoting Yazdian, 793 F.3d at 645). “The governing principle from [Sixth Circuit]
caselaw is not that magic words must be intoned but that the language used be
enough, in a specific factual context, to convey the accusation and its basis.”
Crawford v. Chipolte Mexican Grill, Inc., 773 F. App’x 822, 829 (6th Cir. 2019)
(finding that an employee’s accusation that a manager was “discriminating against”
and “harassing” a black employee was “just enough to get past summary
judgment”).
18

Nevertheless, to be protected, the plaintiff’s opposition must be expressed
“in a reasonable manner.” Jackson, 999 F.3d at 345 (citing Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000)). This means, “[f]or example,” that
“an employee is not protected when he violates legitimate rules and orders of his
employer, disrupts the employment environment, or interferes with the attainment
of his employer’s goals.” Id. (quoting Booker v. Brown & Williamson Tobacco
Co., 879 F.2d 1304, 1313 (6th Cir. 1989)). As the Sixth Circuit provided in
Booker, “there may arise instances where the employee’s conduct in protest of an
unlawful employment practice so interferes with the performance of his job that it
renders him ineffective in the position for which he was employed. In such a case,
his conduct, or form of opposition, is not covered.” 879 F.2d at 1312 (internal
quotation marks and citation omitted).
Determining whether an employee’s opposition was conducted in a
“reasonable manner” involves “a balancing test to balance ‘the employer’s
recognized, legitimate need to maintain an orderly workplace . . . , and the equally
compelling need of employees to be properly safeguarded against retaliatory
actions.’” Armstrong v. Whirlpool Corp., 363 F. App’x 317, 331 (6th Cir. 2010)
(quoting Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 722 (6th Cir. 2008)).
“The ultimate question under the balancing test is whether the employee’s actions
were reasonable under the circumstances.” Id. (quoting Niswander, 529 F.3d at
19

725). This a “a fact-intensive inquiry[.]” Wasek v. Arrow Energy Servs., Inc., 682
F.3d 463, 471 (6th Cir. 2012). Nevertheless, circuit courts have warned that the
reasonableness requirement must be read “narrowly lest legitimate activism by
employees asserting civil rights be chilled.” Grant v. Hazelett Strip-Casting Corp.,
880 F.2d 1564, 1570 (1989) (quoting Wrighten v. Metro. Hosp., Inc., 726 F.2d
1346, 1355 (9th Cir. 1984)).
Viewing the facts in a light most favorable to Mr. Bazzi, a reasonable juror
could construe Mr. Bazzi’s statement, in the context in which it was made, as
protected opposition to unlawful harassment. On its own, Mr. Bazzi’s use of the
term “white supremacists” to describe his coworkers or telling Mr. Falleti that
“you’re a white supremacist” may not seem like opposition to unlawful behavior.
See, e.g., Booker, 879 F.2d at 1313 (holding that an allegation that the plaintiff’s
supervisor may be a racist does not constitute protected activity as “the allegation
is not that [the employer] is engaging in unlawful employment practice, but that
one of its employees has a racial intolerance); Cooks v. Ford Motor Co., No. 3:21
CV 1368, 2023 WL 3740302, at *9 (N.D. Ohio May 31, 2023) (characterizing as
“at most a vague charge of discrimination” the plaintiff’s calling another employee
racist “for believing all black people look the same” after that employee docked the
plaintiff’s pay for leaving his shift early when the plaintiff denied leaving early);
Childers v. Gen. Motors LLC, No. 16-cv-14428, 2019 WL 630274, at *7 (E.D.
20

Mich. Feb. 14, 2019) (finding that registering an “isolated complaint” about a
single “racist remark” was not protected activity). However, since 2014, Mr. Bazzi
had been complaining to FCA management about his co-workers’ harassment
based on his national origin. On September 15, 2020, surrounded by coworkers
who had harassed and picked on him in the past, including Mr. Falleti, and with his
manager nearby doing nothing, Mr. Bazzi called the group “white supremacists” as
a “call for help.”
The EEOC Guidance on Retaliation provides:
[E]ven reporting an isolated single incident of harassment is protected
opposition if the employee “reasonably believes that a hostile work
environment is in progress, with no requirement for additional
evidence that a plan is in motion to create such an environment or that
such an environment is likely to occur.” Likewise, it is protected
opposition if the employee complains about offensive conduct that, if
repeated often enough, would result in an actionable hostile work
environment.
See 2016 WL 4688886, at *10 (Aug. 25, 2016) (footnotes omitted); see also id.
(observing that “the hostile work environment liability standard is predicated on
encouraging employees to report harassing conduct before it becomes severe or
pervasive”). As stated earlier, “the EEOC’s interpretation of ‘opposing’ conduct”
must be “given ‘great deference[.]” New Breed Logistics, 783 F.3d at 1067
(quoting Johnson, 215 F.3d at 580 n.8) (citing Griggs v. Duke Power Co., 401 U.S.
424, 434 (1971)).

21

The Court also believes that a reasonable jury could conclude that Mr.
Bazzi’s opposition to what he perceived to be a hostile work environment was not
made in an unreasonable manner. Mr. Bazzi did not engage in or threaten physical
violence. The record does not reflect that he has engaged in repetitive outbursts,
nor does it show that his conduct interfered with FCA’s business operations. This
was a solitary event and, viewed in a light most favorable to Mr. Bazzi, was
triggered by ongoing national origin discrimination by his co-workers.
As the Tenth Circuit has observed: “An emotional response to a racial or
religious epithet is a most natural human reaction. It would be ironic, if not
absurd, to hold that one loses the protection of an antidiscrimination statute if one
gets visibly (or audibly) upset about discriminatory conduct.” Hertz v. Luzenac
Am., Inc., 370 F.3d 1014, 1022 (10th Cir. 2004). Other courts have made similar
observations. See NLRB v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974)
(addressing the employee’s “abusive confrontation with [his] supervisor,” and
finding that the employee’s “indignation . . . was understandable. Expression of
his anger in the language of the mill is not nearly as shocking to us as [the
employer]’s counsel would suggest . . . [the employee]’s outburst was spontaneous
and was provoked by unlawful conduct of his employer”); NLRB v. M & B
Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965) (stating with regard to the
employee’s threat to harm a supervisor and telling him to shut up that “[a]n
22

employer cannot provoke an employee to the point where she commits such
indiscretion . . . and then rely on this to terminate her employment” and that “[t]he
more extreme an employer’s wrongful provocation the greater would be the
employee’s justified sense of indignation and the more likely its excessive
expression”); Starling v. Gen. Motors, LLC, No. 3:21-cv-750, 2024 WL 4028711,
at *5 (S.D. Miss. Sept. 3, 2024) (expressing that “[i]t cannot be true that an
employer can discriminate against or sexually harass an employee and nevertheless
be immunized from liability if the employee raises their voice when he or she
complains about it”).
“Of course there are limits. Actions accompanying an emotional outburst
cannot be unchecked.” Hertz, 370 F.3d at 1022. However, in cases where the
employee’s conduct was found not cloaked with statutory protection, the employee
had been disruptive over a period of time and/or the disruptions were serious, for
example because they interfered with the employee’s or another worker’s job
performance or disrupted business operations. See, e.g., McDonnell Douglas
Corp., 411 U.S. at 794, 803 (finding that unlawfully stalling cars on the main roads
leading to the petitioner’s plant for the purpose of blocking access to it at the time
of the morning shift change and placing a chain and padlock on the front door of a
building to prevent employees from leaving were not protected opposition);
Robbins v. Jefferson Cnty. Sch. Dist. R-1, 186 F.3d 1253, 1259 (10th Cir. 1999)
23

(finding the employee’s response “not reasonable” where she “lodged frequent,
voluminous, and sometimes specious complaints and engaged in antagonistic
behavior towards her superiors”); Jennings v. Tinley Park Cmty. Consol. Sch. Dist.
No. 146, 864 F.2d 1368, 1374-75 (7th Cir. 1988) (concluding that the plaintiff’s
conduct “exceeded the cloak of statutory protection” where she engaged in
deliberate conduct “to sandbag” her supervisor and hinder his ability to do his job);
Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 230-34
(1st Cir. 1976) (finding the plaintiff’s conduct “so extreme as to fall outside the
ambit of Title VII” where she disrupted staff meetings, “interfered with ongoing
research and upset the other scientists,” circulated negative rumors concerning the
Foundation, invited someone “to conduct a covert affirmative action survey at the
Foundation,” invited a reporter “to examine her files containing confidential salary
information for employees at the Foundation,” was reprimanded several times for
unsatisfactory work, ran up the Foundation’s telephone bill for personal calls
concerning her complaints and misused secretarial assistance and xeroxing
services, caused employees to leave, and created a number of other disturbances,
which persisted over a three-year period). And, again, the exceptions to protection
“must be read narrowly lest legitimate activism by employees asserting civil rights
be chilled.” Grant, 880 F.2d at 1570 (quoting Wrighten, 726 F.2d at 1355).

24

2.

Whether Mr. Bazzi Presents Direct Evidence of
Retaliation

In the context of a retaliation claim, direct evidence exists where the
plaintiff’s protected statements are specifically identified as a reason for the
disciplinary action against the plaintiff. See, e.g. Yazdian, 793 F.3d at 648 (finding
direct evidence when a supervisor specifically referenced the plaintiff’s protected
statements as examples of the plaintiff’s insubordination when terminating the
plaintiff); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008)
(not finding direct evidence, but noting as an example of direct evidence of
retaliation “an explicit statement from [the defendant] that it was firing [the
plaintiff] in response to his discrimination claims”); Lott v. Tradesmen Int’l, Inc.,
No. 5:09-cv-183, 2012 WL 2374238, at *4 (E.D. Ky. June 22, 2012) (finding direct
evidence when the plaintiff complained about sex discrimination to her employer
and hired an attorney, and when she indicated in a conversation with her supervisor
that she believed the reason for her termination was her lawsuit, her supervisor
responded “pretty much”). Here, FCA undisputedly disciplined Mr. Bazzi for his
“white supremacists” comment—i.e., his protected conduct. 4

Even if required to demonstrate a prima facie case of retaliation, Mr. Bazzi does
so for the reasons he articulates.
25
4

3.

Whether FCA Had a Legitimate Non-Retaliatory Reason
for Terminating Mr. Bazzi and Whether that Reason was
a Pretext for Retaliation

FCA maintains that it had a legitimate, non-retaliatory reason for terminating
Mr. Bazzi: He violated Policy 3-6. (See ECF No. 16 at PageID. 827.) Under
Sixth Circuit caselaw, a plaintiff can demonstrate pretext in three ways: “(1) that
the proffered reason[] had no basis in fact, (2) that the proffered reason[] did not
actually motivate the employer’s action, or (3) that [the reason was] insufficient to
motivate the employer’s action.” Romans v. Mich. Dep’t of Human Servs., 668
F.3d 826, 839 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400
(6th Cir. 2009)). The Court believes a reasonable jury could find FCA’s reason to
be a pretext for unlawful retaliation.
Policy 3-6 prohibits workplace harassment and discrimination. (See ECF
No. 13-3.) The policy provides as examples of harassment:
unwelcome physical conduct; threats or intimidation; displaying
offensive items or pictures; interfering with or sabotaging someone’s
work or personal or assigned property; and making jokes or
inappropriate comments about a person’s race, color, sex, sexual
orientation, gender identity, transgender status, age, protected veteran
status, marital status, religion, national origin, disability status or
genetic information.
(Id.) The policy further provides that “[o]ne act or a series of acts may constitute
harassment.” (Id.)

26

FCA concluded that Mr. Bazzi violated Policy 3-6 by making racially
offensive remarks. 5 However, “[t]he term ‘white supremacist’ is not a racial
classification. It is used to identify someone as being associated with a racially
motivated group.” Davis v. City of Aransas Pass, No. 2:13-cv-363, 2014 WL
2112701, at *1 (S.D. Tex. May 20, 2014), aff’d 605 F. App’x 429 (5th Cir. 2015);
see also McIlvaine v. 1SEO Tech., Inc., 485 F. Supp. 3d 582 , 585-86 & n. 12 (E.D.
Pa. 2020) (citations omitted) (“Although Plaintiff argues that an accusation of
being a white supremacist is necessarily an accusation based on race, this is not
so”). FCA fails to cite authority to conclude otherwise. Therefore, FCA’s reason
has no basis in fact. 6
FCA’s records do not specifically identify Mr. Bazzi’s comment as “racially
offensive” and, therefore, violative of Policy 3-6. (See, e.g., ECF No 1 at PageID.
14; ECF No. 13-21.) However, FCA maintains in its briefs that the disciplinary
action was justified because the remarks fit this category and it has treated other
employees who made “racially offensive remarks” similarly. (See, e.g., ECF No.
13 at PageID. 80, 87 (arguing that had a “legitimate concern about Bazzi violating
its policy prohibiting racially offensive comments,” and that Mr. Bazzi cannot
establish that he was treated more harshly than similarly situated co-workers
because FCA terminated seven other employees and suspended one other “for
making racially offensive remarks). Further, the individual who alone investigated
the incident and decided what discipline to impose testified that she concluded Mr.
Bazzi used a “derogatory” term because it “identified race.” (ECF No. 15-8 at
PageID. 583, 586.) Thus, the Court does not consider whether Mr. Bazzi’s
comment otherwise violated the policy.
5

FCA maintains that it has terminated and suspended employees for similar
violations, such as calling a co-worker the “N” word. However, for the reason just
discussed, the examples FCA offers are not comparable. (See ECF No. 13-27 at
PageID. 398-436.)
27
6

FCA contends that this Court must defer to its “business judgment” that Mr.
Bazzi’s use of the term “white supremacist” was racially derogatory. (See ECF No.
13 at PageID. 103 n.6 (citing Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 503 (6th
Cir. 2009); Michael v. Caterpillar Fin. Serv. Corp., 496 F.3d 584, 598 (6th Cir.
2007).) “An employer’s business judgment, however, is not an absolute defense to
unlawful discrimination.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,
576 (6th Cir. 2003) (citing EEOC v. Yenkin-Majestic Paint Corp., 112 F.3d 831,
835 (6th Cir. 1997)) (“Although it is true that a factfinder should refrain from
probing an employer’s business judgment, a decision to terminate an employee
based upon unlawful considerations does not become legitimate because it can be
characterized as a business decision.”). As the Sixth Circuit provided, “the
reasonableness of an employer’s decision may be considered to the extent that such
an inquiry sheds light on whether the employer’s proffered reason for the
employment action was its actual motivation.” Id. (citations omitted).
Moreover, as courts have discussed, an employer cannot fail to respond to an
employee’s complaints of unlawful harassment or conduct in the workplace and
then discipline that employee for his or her response to the harassment or conduct.
See, e.g., Nichols, 152 F. Supp. 3d at 1140-41; Speed v. WES Health Sys., 93 F.
Supp. 3d 351, 364 (E.D. Pa. 2015) (“Even if one were to conclude that [the
plaintiff]’s conduct in striking her harasser was inappropriate under all of the
28

circumstances, it would be profoundly anomalous to protect the very employer
which had failed in the first instance to protect her; but for that failure, [the
p]laintiff need not have confronted an escalation of [her harasser]’s behavior”). As
the Nichols court reasoned: “‘To allow an employer to ignore clear warning signs
and then terminate an employee who resists [unlawful] harassment and assault at
the workplace’ or . . . who resists threats of violence based on his religion ‘is to
deny the employee the basic protection against discrimination which Title VII
affords.’” 152 F. Supp. 3d at 1140-41 (quoting Van Horn v. Specialized Support
Servs., Inc., 241 F. Supp. 2d 994, 1014 (S.D. Iowa 2003)) (brackets omitted). The
Eighth Circuit has found that “[w]hen an employee is fired because he acted to
defend himself against harassment, which supervisors failed to take reasonable
measures to prevent or correct, the termination process cannot be said to be free
from discrimination.” Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir. 1999)
(citing DeGrace v. Rumsfeld, 614 F.2d 796, 804 (1st Cir. 1980); Kientzy v.
McDonnell Douglas Corp., 990 F.2d 1051, 1060 (8th Cir. 1993)).
The same principle has been expressed in National Labor Relations Act
cases: “An employer cannot provoke an employee to the point where [the
employee] commits . . . an indiscretion . . . and then rely on this to terminate [the
employee’s] employment.” NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th
Cir. 1965); see also Precision Window Mfg., Inc. v. NLRB, 963 F.2d 1105, 1108
29

(8th Cir.1992) (stating that “[a]n employer may not provoke an employee and then
rely on the employee’s intemperate response as a ground for not reinstating him”);
Tr. of Boston Univ. v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977) (quoting M & B
Headwear, 349 F.2d at 174); NLRB v. Mueller Brass Co., 501 F.2d 680, 685-86
(5th Cir. 1974) (same). As the Fourth Circuit reasoned in M & B Headwear when
rejecting the employer’s argument that an employee was terminated for her verbal
outbursts rather than her pro-union activities in violation of the NLRA:
We in no way condone insubordination and in normal situations it
would be a justifiable ground for dismissal. But we cannot disregard
the fact that the unjust and discriminatory treatment of [the employee]
gave rise to the antagonistic environment in which these remarks were
made.
An employer cannot provoke an employee to the point where
she commits such an indiscretion as is shown here and then rely on
this to terminate her employment. See N L R B v. Tennessee Packers,
Inc., 339 F.2d 203 (6th Cir. 1964). The more extreme an employer’s
wrongful provocation the greater would be the employee’s justified
sense of indignation and the more likely its excessive expression. To
accept the argument addressed to us by the company would be to
provide employers a method of immunizing themselves from the only
real sanction against violations of [the statute]. Reinstatement in the
instant case is not, as the employer puts it, a reward to the employee
for insurgency. Rather, as we see it, refusal to reinstate her would put
a premium on the employer’s misconduct.
349 F.2d at 174.
The Eighth Circuit’s discussion of the plaintiff’s claim for back pay in Excel
is particularly instructive here. The defendant argued that the plaintiff was not
entitled to back pay because the evidence did not support a finding that sexual
30

harassment caused the plaintiff’s termination; but rather, it had a legitimate reason
for firing the plaintiff—that being, her pushing her sexual harasser in the chest and
then pushing past a supervisor, which was reported as the plaintiff striking the
supervisor. 165 F.3d at 638. The court found proof “that impermissible
discrimination was a ‘motivating factor’ in the employment decision, ‘even though
other factors also motivated’ the employer’s decision.” Id. at 638 (quoting Pedigo
v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995)).
The court reasoned: “When an employee is fired because he acted to defend
himself against harassment, which supervisors failed to take reasonable measures
to prevent or correct, the termination process cannot be said to be free from
discrimination.” Id. at 649 “This is so[,]” the court explained, “even if the
ultimate decision maker was moved purely by a legitimate concern about personnel
matters.” Id. The plaintiff complained of unlawful harassment, the defendant
chose not to act to stop it, the plaintiff engaged in conduct in response to the
harassment, and she was terminated as a result. Id.
In the present case, Mr. Bazzi claims that he was subjected to and
complained about national origin harassment by co-workers for years, and that
FCA’s management failed to respond. Notably, in 2019, Mr. Bazzi submitted a
complaint stating that he had “been facing racial harassment and derogatory
comments” since 2013, and specifically reported the comments of a co-worker that
31

“Trump [was] going to place [him] on the other side of the wall and give [his] job
to a white man.” (See ECF No. 13-15.) Mr. Bazzi further stated that he was
“getting tired of this” and “want[s] it to stop.” (Id.) A reasonable jury could find
that Mr. Bazzi was acting to defend himself against, or at least was responding to,
further national origin discrimination when he called his co-workers “white
supremacists.” Mr. Bazzi explained the reasons for his outburst to FCA during its
investigation of the incident. Specifically, he provided that he was calling out for
help to his manager, who was standing nearby and not responding while he was
verbally attacked by co-workers.
Under these circumstances, the Court concludes that it is for the trier of fact
to decide whether FCA used Policy 3-6 as a pretext for retaliation.
V.

Conclusion
In summary, the Court finds that Mr. Bazzi has waived his national

origin/ethnicity discrimination claim under § 1981. The Court further finds that
the only claims Mr. Bazzi is alleging in this lawsuit are timely-filed retaliation
claims under Title VII and the ELCRA based on the September 15, 2020 incident
and resulting discipline. Lastly, the Court concludes that whether Mr. Bazzi proves
these claims is for a jury to decide.
Accordingly,

32

IT IS ORDERED that FCA’s motion for summary judgment (ECF No. 13)
is GRANTED IN PART AND DENIED IN PART in that only Count I of Mr.
Bazzi’s Complaint is DISMISSED WITH PREJUDICE.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE

Dated: November 26, 2024

33