The Long and Winding Road of Discrimination and Retaliation

If an employee files a claim of discrimination and continues to work for an employer, it’s likely that, sooner rather than later, the employee will also file a retaliation claim. Someone in management will say something or do something that the employee believes to be in retaliation for the discrimination claim she initially filed. So, an employer in this kind of situation will end up with two claims, both usually filed under Title VII of the Civil Rights Act. In time, it’s become obvious that it’s easier for an employer to defend the discrimination claim than the retaliation claim. That means the employer can win one and lose the other.

Alvarez v. Royal Atlantic Developers, Inc., recently decided by the Eleventh Circuit Court of Appeals. provides a good example. It also tells an interesting story. In this case, a Cuban-American employee named Alvarez became the third controller to work for the company (a Florida real estate development enterprise) in a relatively short period of time. The controller reported to the Chief Financial Officer, a member of the family that owned the company. The CFO had fired the other two controllers because of their incompetence. The CFO had the reputation of being impossible to please, a reputation she seems to have rightfully earned. Like the two controllers before her, Alvarez was found by the CFO to be incompetent, and plans began to be made for hiring a fourth controller. It was decided that the third Alvarez would remain in the job until a fourth controller was found.

Alvarez got wind of what the CFO was up to and wrote a letter of protest to upper management, complaining about a lot of things, including national origin discrimination. She had heard one of the people in upper management say, “Cubans are dumb,” and she felt that Cuban-American employees were terminated more quickly than other employees. Alvarez was fired the next day, although a fourth controller hadn’t been found yet. Alvarez filed suit against the company for national origin discrimination and retaliation. At the time this case was heard by the Eleventh Circuit (three years after Alvarez was terminated), the CFO still hadn’t hired a fourth controller. 

Both the lower court and the Eleventh Circuit had little trouble dismissing the discrimination claim. The CFO had a litany of reasons that Alvarez was fired. According to the Eleventh Circuit, it didn’t matter whether the reasons given for the discharge were unfair or objectively reasonable. What mattered is whether Alvarez could  prove that she had been discriminated against because her status as a Cuban-American.

Alvarez had no statistics to back up her claim that Cuban-American employees were fired more quickly than other employees. The fact that the first two controllers weren’t Cuban-Americans and had been fired a short time before under similar circumstances was strong evidence that no discrimination had occurred. The CFO had unreasonably high standards that were applied indiscriminately to Cubans and non-Cubans alike. According to the court, the CFO “was indiscriminately persnickety.” The “Cubans are dumb” comment was not enough to prove national origin discrimination.

Though the lower court had also dismissed the retaliation claim, the Eleventh Circuit was troubled about possible retaliation. It was true that the CFO planned to fire Alvarez before Alvarez sent her letter of protest. In fact, the CFO was already looking for a replacement. However, the CFO admitted that she fired Alvarez sooner than planned and that her reason for doing so was the letter of protest Alvarez had sent to upper management. Her early firing based on the letter could be retaliatory, therefore.

The CFO argued that she had another overriding reason for terminating Alvarez. Because of Alvarez’s knowledge about the company, access to company computers and bank accounts, and the possibility that Alvarez’s anger toward the company (as revealed in  her letter of protest) would cause her to try to hurt the company, the CFO said she was trying to prevent Alvarez from sabotaging the company’s operations. That would be a legitimate reason, if it were true. Because the case had been dismissed without a jury trial, there wasn’t enough evidence before the Eleventh Circuit to make a determination on this issue.

Alvarez couldn’t prove that she had been discriminated against for the reasons outlined above. However, if the company fired Alvarez earlier than it had planned — after the fourth controller had been hired – because of the letter of protest, that would be retaliation, and Alvarez would be entitled to recover the compensation she would have been paid had she not been terminated. Since the controller position had been open for three years after Alvarez was terminated, that left open the possibility she could recover three years pay — unless the company actually believed Alvarez might sabotage the company’s operations and could prove that it fired Alvarez early for that reason.

The Eleventh Circuit found there were too many disputed facts about the retaliation claim for the case to be dismissed without a jury trial.  Thus, the case was returned to the lower court for further proceedings. So, the company won the discrimination part of the lawsuit but might have lost the retaliation part of the lawsuit, depending on what the evidence shows when the case is reconsiderd by the lower court and probably tried to a jury.

If an employer has a legitimate non-discriminatory reason for firing an employee, as the company did in this case, there can be no discrimination. If an employer takes adverse action against an employee after learning she has complained about discrimination, that’s retaliation — even if the employer has already decided to fire the employee. Firing an employee the day after she files a discrimination complaint will be compelling evidence of retaliation. It would be a shame if an employer can show that no discrimination occurred but the employee shows that retaliation occurred. Be careful after an employee complains about discrimination. Make sure that the people working with the employee don’t take retaliatory action. Get some legal advice.

One more thing. If an employer has a manager or supervisor or an executive who is, in the court’s words, “impossible to please. No one can meet their standards 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” and on top of that routinely fires everyone who works for her, the employer will be sued. The employer may win the case, but the employer will find that keeping a manager, supervisor or executive like that around will be an expensive proposition.