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Alvarez v. Royal Atlantic Developers, No. 08-15358 (11th Cir. July 2, 2010)

| Jul 1, 2010 | Daily Developments in EEO Law |

The Eleventh Circuit passes on a fascinating case, reversing summary judgment in a Title VII retaliation case where the employee “wrote a letter of protest to her bosses, complaining, among other things, about what she perceived to be discrimination against her based on her national origin,” and “[t]he company admits that Alvarez was fired sooner instead of later because of that letter, which it concedes is protected conduct”

Alvarez v. Royal Atlantic Developers, No. 08-15358 (11th Cir. July 2, 2010):  The panel opinion sets the stage for the manager from Hell:

“Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that Heidi Verdezoto is one of those people. She is the Chief Financial Officer of two closely related, family-owned companies in Miami. As CFO, she supervises the controller of the companies and passes judgment on the performance of the person in that position. And it seems that the judgment she passes is always unfavorable.”

The plaintiff here was the third person to occupy the controller spot, the first two having been fired for not meeting the CFO’s standards.  The plaintiff, too, was apparently on her way to being fired, but before the ax came down, she delivered a letter to senior management complaining that she was being discriminated against, on the basis of national origin (Cuban).

Catching wind of the complaint, according to the summary judgment record, the company took its misstep:

“When [CEO] Edwin [Verdezoto] read Alvarez’s October 3 letter, he immediately held a conference call with Heidi and [president/general counsel Donald] Darrach. Edwin concluded from the letter that Alvarez was ‘unhappy at the company’ and ‘wanted to leave.’ He thought her allegation of discrimination was ‘a lie’ and did not question Darrach about it. Heidi saw Alvarez’s invitation to ‘look for an agreement’ as an attempt to extort a severance payment from Royal Atlantic. After reading the letter, Edwin and Heidi agreed to fire Alvarez immediately rather than waiting until they had found a replacement as they had planned to do. She was fired the morning after she emailed the letter.”

The two Verdezotos also admitted in their depositions that the accelerated timing of the termination was due to the plaintiff’s letter.

Despite this rather damning record, the district court granted summary judgment, finding four, supposedly distinct reasons that justified the immediate firing: “(1) her work performance was unsatisfactory and it had been planning to fire her anyway; (2) her letter made it clear she was not happy working there; (3) the Verdezotos thought it would be ‘awkward and counterproductive’ to keep her around; and (4) they feared she might sabotage the company’s operations.”

The court of appeals reverses, in part.  The panel affirmed summary judgment on the national origin discrimination claim itself, finding that even if the employee had made out a conventional, McDonnell Douglas prima facie claim, she failed to present a genuine issue of material of fact on pretext.  Invoking what it calls the “Vince Lombardi” rule, i.e. “someone who treats everyone badly is not guilty of discriminating against anyone,” the panel summarizes the fatal flaw in the employee’s case:

“Royal Atlantic’s proffered reason for firing Alvarez was that her performance was unsatisfactory. Even if Alvarez could show it was satisfactory by some objective standard, she has not raised a genuine issue of material fact as to the true reason she was fired. The record establishes beyond any genuine dispute that Alvarez, like her two non-Cuban predecessors, simply failed to satisfy Heidi Verdezoto. That may not be a good reason for firing Alvarez (or her two predecessors), it may not be a reason that flatters Heidi, and it may not be a reason that Royal Atlantic wants to put in its promotional brochures, but it is a non-discriminatory reason. So far as job discrimination law is concerned, Heidi was within her rights to insist on a controller who could whip the company’s books into shape overnight while accommodating her own prickly personality and performing every task perfectly, even if there was little or no chance she would ever find such a miracle worker. She was free to set unreasonable or even impossible standards, as long as she did not apply them in a discriminatory manner.”

But the panel vacates summary judgment on the retaliation claim.  It finds – reviewing the four proffered reasons – that the performance-based justification only supported her termination, but not the accelerated timing of the decision.  It also holds that the second and third reasons are essentially indistinguishable from the prohibited retaliatory reason:

“The second and third reasons Royal Atlantic gave for firing Alvarez, which are closely related, are that her letter made it clear that she was unhappy working for the company and the Verdezotos thought it would be ‘awkward and counterproductive’ to keep her around. Well, sure. Anyone who complains about unlawful discrimination is not likely to be a happy camper. Only a masochist would relish being mistreated because of her race, sex, or nationality. And it will always be ‘awkward,’ and perhaps ‘counterproductive’ in the business sense, to work with people who complain that you have discriminated against them. But recognizing those concerns as legitimate, non-retaliatory reasons to fire someone who complains about unlawful discrimination would do away with retaliation claims and the protection they provide to victims of discrimination. That, in turn, would be ‘counterproductive’ to the purpose of the statutory provisions prohibiting discrimination.”

The fourth reason, that the employee might turn vindicative and sabotage the operation, the panel declares it does not “dismiss . . . out of hand.”  But while a good-faith belief that employee intends to commit sabotage would constitute a valid reason to discharge her at once, harboring a totally unfounded stereotype does not earn the employer summary judgment:

“Her letter contains no threats against the company or anyone else, nor does it provide a reasonable basis for inferring that Alvarez would try to disrupt operations. The company did not show that there was no means short of firing Alvarez that it could have used to protect itself from the sabotage it feared, such as reassigning her to other duties until it found a replacement controller. And, of course, there is no evidence that Alvarez’s continued employment posed a physical danger to the Verdezotos or their other employees. The company was not entitled to summary judgment on this ground. . . . Unless Royal Atlantic convinces a jury that it had a reasonable basis for fearing that unless it fired her immediately Alvarez would sabotage its operations or harm others, and there was no less drastic means of reliably preventing that other than firing her, Alvarez will be entitled to damages for the length of time she would have remained on the job if she had not sent the October 3, 2006 letter complaining of discrimination.”

Experience tells me, though, that this case is not going to a jury, but will settle (if the parties can figure out the attorney’s fees issue, which is likely immense compared to the damages in this case).

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