Employee Gets Trial on Title VII Retaliation Claim
What happens when an employee in a sensitive position complains about discrimination and immediately gets fired because the company claims the employee might use her position to sabotage the business?
It’s a defense that is appealing to many judges, but not one that can be taken at face value according to the case of Alvarez v. Royal Atlantic Developers decided by the Eleventh Circuit Court of Appeals last week.
What Happened In The Case
Eliuth Alvarez, a Cuban-American, worked as a controller for Royal Atlantic Developers, a Miami based real estate development company owned by the Verdezoto family. The Verdezotos also own Royal Flowers International. Edwin Verdezoto is CEO of Royal Atlantic and President of Royal Flowers. Heidi Verdezoto, his sister, is CFO of both companies. The two companies have over 50 employees.
Alvarez had eighteen years of experience in accounting, auditing, and controllership at the time she arrived at the company. Alvarez reported to the Chief Financial Officer, Heidi Verdezoto.
By all accounts Heidi Verdezoto was impossible to please. Alvarez’s two predecessors were fired by her within two to three months of their hiring because they failed to meet her standards.
Alvarez suffered the same fate. About four months after she was hired, the Verdezotos decided to fire her but wait until a replacement was found before the termination was to take place.
Alvarez got wind of the plan and wrote a letter of protest to her bosses, complaining, among other things, about what she believed to be discrimination against her because of her national origin. The Verdezotos read the letter and fired Alvarez the next morning because of it.
Alvarez filed a lawsuit in federal court in Florida claiming discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The company defended by claiming that Alvarez did not prove discrimination because of her national origin and that she was fired because of poor performance.
Regarding the retaliation claim, the company claimed there was no causal connection between Alvarez’s letter and her firing because she was going to be fired anyway. In addition, the company claimed that even if her letter of complaint was a factor in the firing, it had a legitimate non-retaliatory reason for firing her immediately, specifically because:
- it would be "awkward" and "counterproductive" for Alvarez to remain in the office after she expressed such unhappiness with the job
- it feared that she might use her position as controller to sabotage the company’s operations
The district court granted judgment in favor of the company. On the discrimination claim, it found that Alvarez did not show that she was replaced by a non-Cuban or that similarly situated non-Cubans were treated more favorably than she had been. On the retaliation claim, the court concluded that the company offered legitimate reasons for firing Alvarez. Alvarez appealed.
The 11th Circuit Reverses The Retaliation Claim
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter
To prove a case of retaliation under Title VII, the plaintiff must show:
- that she engaged in statutorily protected conduct
- that she suffered an adverse employment action
- there is some causal connection between the two events
There was no dispute that Alvarez engaged in statutorily protected conduct when she raised issues of discrimination in her complaint letter. The company argued, however, that there was no adverse action because there were plans underway to fire Alvarez even if she had not complained about discrimination in her letter.
The Court rejected this argument The evidence showed that the letter caused Alvarez to be fired the day after she mailed it – sooner than she would otherwise have been fired – and that the Verdezotos decided not to wait until they found a replacement as they had planned. This was sufficient, according to the Court, to establish the “adverse action” part of her retaliation claim.
One of the other reasons given by the defendant for firing Alvarez -- that it would be "awkward" and "counterproductive" to keep her around -- was also rejected by the Court. It stated:
Anyone who complains about unlawful discrimination is not likely to be a happy camper. ….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 these 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.
The final reason give by the company for firing Alvarez after it received her letter of complaint -- that it had to get rid of her because the Verdezotos were afraid that she might vindictively use her position as controller to sabotage the company’s operations --was also rejected by the Court after careful consideration.
The reason was because there was simply no evidence that the proffered reason was a valid one. As the Court pointed out:
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. … 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.
With that, the Court concluded that Alvarez would be entitled to prevail unless Royal Atlantic could convince a jury that:
- if they didn’t fire Alvarez immediately she would sabotage their operations or harm others and
- there was no less drastic means of reliably preventing that other than firing her
The Court also stated that Alvarez would be entitled to damages for the length of time she would have remained on the job if she had not sent the letter complaining of discrimination. The Verdozotos both testified that their initial plan was to keep Alvarez on board until they had lined up her replacement. At the time of oral argument of the appeal, the controller position remained vacant for three years after Alvarez was fired.
What all of this means is that it looks like Alvarez has a reasonable shot of winning three years of damages representing her economic loss (minus whatever she earned in the interim) when the case goes back to trial (as well as attorney fees if she prevails.)
This is a fascinating and important case. It’s not the first time I have heard of a company defending itself by claiming that it had to fire an employee after he or she raised a discrimination claim because the employee could no longer be trusted. It comes up particularly with employees involved with high levels of responsibility and access to confidential information – like in house lawyers and financial executives -- and it’s a defense that is appealing to many judges. That’s why this thoughtful decision from the Eleventh Circuit will be very helpful to victims of retaliation in the future.
It makes sense that a person should not have to worry about losing her job if she exercises her lawful right to raise a concern about discrimination -- even if the complaint makes the employer uncomfortable. Now there's a recent opinion from a high court which confirms this important principle.