Eliuth M. Alvarez v. Royal Atlantic Developers ( 2010 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15358 ELEVENTH CIRCUIT
JULY 2, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 07-21333-CV-JAL
ELIUTH M. ALVAREZ,
Plaintiff-Appellant,
versus
ROYAL ATLANTIC DEVELOPERS, INC.,
a Florida corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 2, 2010)
Before CARNES and HULL, Circuit Judges, and GOLDBERG,* Judge.
CARNES, Circuit Judge:
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
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 first controller, an Indian-American, was fired because he could not
meet Heidi Verdezoto’s standards. Likewise with the second controller, an Anglo-
American. The third controller for the companies was our plaintiff, Eliuth Alvarez,
a Cuban-American. Alvarez, like the two men of different ethnic backgrounds
who came before her, was also going to be fired because she could not meet the
Verdezoto standards. If Alvarez had been fired as soon as the decision to let her go
was made, her sole claim would have been one for discriminatory discharge, and
the district court’s grant of summary judgment against her on that claim could
easily have been affirmed on the basis of what we have had occasion to call the
Vince Lombardi rule. See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d
1287, 1301 n.1 (11th Cir. 2007) (explaining that no player could accuse the great
2
coach of discrimination because he treated all of them like dogs).
Alvarez was not, however, fired as soon as the decision was made to replace
her. Instead, she was kept on in her position while efforts were being made to find
a fourth controller, one who—hope springs eternal—might be able to satisfy Ms.
Verdezoto. Alvarez got wind of the plans to replace her and 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. The company admits
that Alvarez was fired sooner instead of later because of that letter, which it
concedes is protected conduct. Given that admission and concession, one would
think Alvarez’s retaliation claim would sail past summary judgment, although the
damages remedy might be trimmed because she eventually would have been fired
anyway.
But the retaliation claim did not drift, much less sail, past the shoals of
summary judgment. It ran aground when the district court accepted as valid the
company’s four proffered reasons for firing Alvarez sooner instead of later. The
two most interesting of those reasons are that it would be “awkward and
counterproductive” to keep a disgruntled employee around and that Alvarez could
vindictively use her position as controller to sabotage the company’s operations.
We have to decide if the company is entitled to summary judgment on those
3
grounds. If not, the district court’s grant of summary judgment on the retaliation
claim must be reversed.
I.
The defendant, Royal Atlantic Developers, Inc., is a Miami real estate
development company owned by the Verdezoto family. The Verdezotos, who are
of Ecuadorian origin, also own a flower distributor, Royal Flowers International,
Inc., which operates out of the same location. Edwin Verdezoto is CEO of Royal
Atlantic and president of Royal Flowers, and he makes all final decisions for both
companies. Heidi Verdezoto, his sister, is CFO of both companies and reports to
him. Donald M. Darrach, the president and general counsel for Royal Atlantic,
also reports to Edwin Verdezoto.
During the relevant time, the two companies had about 56 employees, a
diverse ethnic group including Colombians, Cubans, Dominicans, Ecuadorians,
Guatemalans, Haitians, Hondurans, Nicaraguans, Panamanians, Peruvians, Puerto
Ricans, Venezuelans, and Anglos. The controller of Royal Atlantic, who also
managed finances for Royal Flowers, reported to Heidi Verdezoto.1 The controller
was responsible for creating budgets and financial statements, projecting cash
1
Although the duties of the position involved both companies, the controller was
formally employed and paid by Royal Atlantic, which is the only entity sued in this case. For
simplicity, we will refer to both companies as “Royal Atlantic” or “the company.”
4
flows, reconciling bank accounts and monthly statements, arranging wire transfers,
handling receivables and payrolls, dealing with property managers, managing
several accounting employees, and supervising the two assistant controllers, Joel
Underwood (who is Anglo) and Rosario Ruiz (who is Cuban).2
Heidi Verdezoto had “very high expectations” for the controller position and
could not find anyone who could live up to them. In late 2005 and early 2006,
Heidi hired and quickly fired two controllers.3 Al Agrawal, who is Indian, lasted
about three months, and Dennis Leach, who is Anglo, lasted about two months.
The record does not contain any details about the job performance of Agrawal or
Leach or the particular circumstances under which they were fired, aside from
Heidi’s explanation that neither of them “met [her] expectations.”
On May 2, 2006, Eliuth Alvarez was hired as controller after a headhunter
referred her to Royal Atlantic. The Verdezotos both interviewed Alvarez and
jointly made the decision to hire her. Alvarez, an American citizen of Cuban
origin, is a CPA with eighteen years of experience in accounting, auditing, finance,
2
Ruiz, who was fired around the same time as Alvarez, filed a separate lawsuit against
Royal Flowers asserting similar claims of discrimination. After the district court denied the
defendant’s motion for summary judgment, the parties settled.
3
From this point on, when talking about them separately we will refer to Heidi
Verdezoto and Edwin Verdezoto by their first names, not as a sign of familiarity but for
convenience, to minimize stilted language, and to avoid confusing references to two parties with
the same last name.
5
and controllership. When she arrived at the company, the controller position had
been vacant for two months and the company was about a year behind in its
accounting. One of her responsibilities was to bring the books up to date.
The parties offer sharply different evaluations of Alvarez’s performance as
controller. According to Royal Atlantic, she “never competently assumed the
responsibilities” of the job. She excessively delegated work to her staff, with the
result that they were “overwhelmed” and either missed deadlines or made errors in
their assignments. She botched the implementation of a new software accounting
program by failing to coordinate with and supervise her staff. When Heidi
questioned her about these problems, she made excuses and blamed her
subordinates. On one occasion, an important tax return document went missing.
Alvarez blamed one of her assistants for losing it and insisted that he search his
office for it while she stood there and watched; later, the missing document was
found inside Alvarez’s own desk. Alvarez was “aggressive and rude” to staff and
to Heidi herself, and she was verbally reprimanded for that at least once. Alvarez
mishandled cash flows, failed to purge monthly reports, fell behind on bank
reconciliations, and did not pay vendors on time. Her work suffered from
miscalculations and grammatical errors. Alvarez was frequently late to work, on
one occasion causing the delay of a managers’ meeting. Twice, one of her
6
assistants saw her sleeping at her desk. Heidi concluded within three months of
hiring her that Alvarez was unfit for the job. She discussed the issue with Edwin,
who agreed. They decided they would fire her as soon as they could hire a
replacement.
Alvarez disputes the criticisms of her performance, insisting that she did her
job well. She neither delegated too much, nor supervised too little. By the time
she was fired, the company’s accounts had been brought up to date. Heidi had no
expertise in accounting, and the delays in payments to vendors were her own fault.
No one complained about Alvarez’s work during her initial three-month
probationary period; instead, they complimented her. She was late to work only
once or twice and that was because of traffic jams. She denies having lost the tax
return document and speculates that someone else put it in her desk in order to
frame her.
In late August or early September 2006, about four months after Alvarez had
been hired, Heidi began searching for her replacement. Later, while reviewing
resumes online, Heidi discovered that Alvarez had posted her own resume and was
apparently looking for another job. In fact, Alvarez had applied on September 20
for a job at Miami-Dade Community College. Heidi contacted at least two
potential replacements for Alvarez, Alex Sanchez and Philip Weikert. She did not
7
know the ethnic origin of either man. Heidi spoke to Sanchez on the phone,
discussed salary, and invited him to come into the office for an interview. He
never did. Unbeknownst to Heidi, Sanchez was acquainted with Alvarez and
tipped her off that Royal Atlantic was looking to replace her.4 The other prospect,
Weikert, did interview in person for the job, and Heidi offered it to him only days
after Alvarez was fired, but he never started work.5
It was in late September that Alvarez heard from Sanchez that she was going
to be replaced. A day or two after hearing that, Alvarez confronted Heidi and
asked if she was planning to fire her. Heidi later testified that she felt physically
threatened by Alvarez, who is much larger than she is and was displaying an
“aggressive demeanor.” Feeling pressured, Heidi lied to Alvarez, telling her the
person they intended to fire was assistant controller Rosario Ruiz, not her. Alvarez
did not believe Heidi’s explanation because the salary Heidi had offered Sanchez
fit Alvarez’s position, not Ruiz’s lower-ranking one.
4
The record does not indicate when Heidi discussed the job with Sanchez, but Alvarez
heard from him about it two weeks before she was fired on October 4.
5
The record shows that Weikert took a personality test as part of the application process
on September 21, and Heidi sent him a letter offering him the job on October 6, with a proposed
start date of October 30. Weikert initially accepted, but for some reason things fell through.
According to Heidi, “after a few weeks it was decided between both parties that it was best to
not start the relationship.”
8
Soon after that, on September 27, Alvarez had a run-in with Donald Darrach,
Royal Atlantic’s president and general counsel. Darrach confronted Alvarez in her
office and questioned her about some financial statements he thought “made no
sense.” He raised his voice, and his “aggressive manner” apparently caused
Alvarez to suffer a panic attack. Paramedics were summoned to the office, and
Alvarez later sought psychiatric treatment.
Six days later, on October 3, 2006, Alvarez wrote a letter to Edwin in order
to, as she said in the letter, “put in writing all the frustrations that are affecting my
physical well-being.” In the letter she told him that she was seeking psychiatric
treatment after her recent anxiety attack. She complained that despite everything
she had done to straighten out Royal Atlantic’s finances, Heidi was planning to
replace her. She said she did not believe Heidi’s story that she was actually
planning to fire Ruiz instead of her.
In this letter Alvarez for the first time complained of discrimination. “I have
come to the conclusion,” she told Edwin, “that the reason Rosario [Ruiz] and I are
going to be fired is because of discrimination, because both of us are Cuban.” She
said that she had heard Darrach make derogatory comments about Cubans and had
observed that Cubans such as herself, Ruiz, and two others had been “harassed and
pressured a lot more” than other employees, and another Cuban had recently been
9
fired. “This is a clear case of discrimination not for Latin people as a whole but
toward Cubans in general,” she insisted. Alvarez called her letter “a formal
complaint to the company for discrimination” and accused Darrach of
“mistreatment due to racism and discrimination for my Cuban nationality.” She
closed the letter by saying “I hope that we can discuss this and look for an
agreement.”
Since she filed this lawsuit, Alvarez has elaborated only slightly on her
allegations of anti-Cuban discrimination. She testified that one day she was
walking past Darrach’s office and overheard him say to a group of people that
“Cubans are dumb.” She did not hear anything he said before or after that, and
could not remember when this had happened. Darrach denied having said any such
thing. Alvarez claimed two other Cuban employees had told her that Darrach was
prejudiced against Cubans and made jokes about them, but they never testified and
she herself had heard only the one remark.6 She never offered any statistics to
back up her assertion that Cubans were fired at a higher rate than other employees.
6
Ruiz testified at her deposition in this case that she never personally heard Darrach or
anyone else in management make any derogatory remarks about Cubans. Brenda Garcia, who
was the Human Resources Manager for the companies at the time and who is herself of Cuban
descent, said in an affidavit that she had never received a discrimination complaint from any
other employee. She believed that although Heidi “can be hard to work for and is, at times,
unreasonable,” Heidi was not prejudiced against Cubans or any other particular group.
10
Alvarez testified that she did not believe Edwin was prejudiced against
Cubans, which is why she addressed her complaint to him. She did believe that
Heidi was prejudiced, because Heidi acted “superior” and talked down to her.
However, Alvarez conceded that Heidi behaved that way toward all the employees,
not just the Cuban ones. Alvarez never heard Heidi say anything derogatory about
Cubans.
When Edwin read Alvarez’s October 3 letter, he immediately held a
conference call with Heidi and 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.7 She was fired the morning after she
emailed the letter.
Both the Verdezotos admitted in their depositions that Alvarez’s complaint
affected the timing of her firing. This is Edwin’s testimony:
7
Edwin admitted that in Alvarez’s case the company did not follow its progressive
discipline policy, which normally provides for successive verbal and written warnings before an
employee is terminated for misconduct.
11
Q. Now, once you saw [the letter], you made the decision that it was time to
fire her immediately, correct?
A. Yes.
And this is Heidi’s testimony:
Q. And if you hadn’t received this document, you would eventually have
fired her probably, but you wouldn’t have fired her that day. Is that true?
A. True.
The two Verdezotos decided to “accelerate” the process of getting rid of
Alvarez because, Edwin explained, she was “unhappy” there and they were
unhappy with her. They felt that since Alvarez knew she was going to be fired
anyway, it would be “awkward” for her to remain at the office and they would get
little productive work from her. They also feared that she might use her access to
the company’s computers and bank accounts to sabotage its operations. Alvarez
never attempted or threatened any sabotage, and their basis for fearing that she
might try it was simply the sensitive nature of the job she held, as well as the
statement in her letter that she was unhappy and was seeking psychiatric treatment.
On October 4, 2006, Heidi and Darrach informed Alvarez that she was fired.
By the time this appeal was orally argued, more than three years later, Royal
Atlantic still had not hired a new controller. Heidi took over some of the
12
controller’s duties herself and gave the rest of them to assistant controller Joel
Underwood, without promoting him.
II.
After obtaining a right-to-sue letter from the EEOC, Alvarez filed this
lawsuit against Royal Atlantic. She asserted four claims: (1) discrimination on the
basis of her Cuban-American national origin, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); (2) retaliation in violation of 42
U.S.C. § 2000e-3(a); (3) discrimination in violation of the Florida Civil Rights Act,
Fla. Stat. § 760.10(1)(a); and (4) retaliation in violation of Fla. Stat. § 760.10(7).8
She alleged that Royal Atlantic had “engaged in an improper and illegal course of
conduct designed to systematically eliminate [C]ubans including women” and that
Royal Atlantic fired her in retaliation for her complaint about the discrimination.
After discovery, Royal Atlantic moved for summary judgment. It contended
that Alvarez had failed to establish a prima facie case because her allegations did
not raise an inference of discrimination, her poor performance showed that she was
not qualified for the job, and she could not point to any similarly situated non-
Cuban employees as comparators who were treated more favorably. The company
also maintained that Alvarez failed to rebut the legitimate non-discriminatory
8
The complaint initially contained a fifth count alleging negligent supervision, but
Alvarez voluntarily dismissed it.
13
reason it offered for terminating her, which was that Heidi was dissatisfied with her
poor job performance.
Royal Atlantic also argued that there was no causal connection between
Alvarez’s letter of complaint and her firing, and therefore no retaliation, because
she was going to be fired anyway. Even if Alvarez’s letter of complaint was a
factor in the termination, Royal Atlantic insisted it had legitimate non-retaliatory
reasons for firing her immediately, including: it would be “awkward and
counterproductive” for Alvarez to remain in the office after she expressed such
unhappiness with the job, and it feared that she might use her position as controller
to sabotage the company’s operations.
Alvarez responded that she was qualified for the job and that she was not
required to identify comparators in order to make a prima facie case because Royal
Atlantic’s proffered explanation of poor job performance was pretextual. Alvarez
insisted that she did her job well and said that she had never been disciplined
before she made the complaint. She contended that she had presented both direct
and circumstantial evidence showing that Royal Atlantic’s decision to fire her was
made in response to her letter of complaint, or at least that the letter caused the
company to fire her immediately instead of waiting until it had hired a
replacement.
14
The district court granted summary judgment in favor of Royal Atlantic. It
concluded that Alvarez had failed to make out a prima facie case of discrimination
under the framework for circumstantial evidence established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), because she had not
shown that she was replaced by a non-Cuban or that similarly situated non-Cuban
employees were treated more favorably than she had been. Having concluded that
Alvarez’s discrimination claim failed on that ground, the court granted summary
judgment for Royal Atlantic without reaching the question of whether its proffered
reason for firing her was a pretext for discrimination.
On the retaliation claim, the district court decided that none of the
Verdezotos’ statements were direct evidence of retaliatory motive, but the fact that
Alvarez was fired only one day after making the complaint did establish a causal
link and a prima facie case. The court concluded, however, that Royal Atlantic had
offered four legitimate non-retaliatory reasons for firing Alvarez: (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 explained that
Alvarez had the burden to show that each of these reasons was pretextual, which
15
she had failed to do. Therefore, the court concluded, Royal Atlantic was entitled to
summary judgment on the retaliation claim. It also granted summary judgment to
Royal Atlantic on the two state-law claims, for the same reasons. This, of course,
is her appeal.
III.
We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court. Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). We will affirm if, after construing the
evidence in the light most favorable to the non-moving party, we find that no
genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law. Jones v. Dillard’s, Inc., 331 F.3d 1259, 1262–63 (11th Cir. 2003).
The district court’s decision may be affirmed if the result is correct, even if the
court relied upon an incorrect ground or gave a wrong reason. Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1433 n.9 (11th Cir. 1998).
IV.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or otherwise 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
16
national origin.” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff may prove a claim of
intentional discrimination through direct evidence, circumstantial evidence, or
statistical proof.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir.
2008).
Alvarez offers no statistical evidence showing that Cubans were fired at a
higher rate than other nationalities. Nor does she attempt to argue that Darrach’s
“Cubans are dumb” remark rises to the level of direct evidence of discrimination,
even if we assume, as we must for summary judgment purposes, that he actually
said it. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(“[O]nly the most blatant remarks, whose intent could mean nothing other than to
discriminate on the basis of some impermissible factor constitute direct evidence of
discrimination.” (quotation marks and citation omitted)).
Lacking direct evidence, Alvarez must prove her discrimination claim
circumstantially. We evaluate such claims using the framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089 (1981). Wilson, 376 F.3d at 1087. Under that framework the
plaintiff must first establish a prima facie case of discrimination, typically by
showing that she was a qualified member of a protected class and was subjected to
17
an adverse employment action in contrast to similarly situated employees outside
the protected class. See id. The methods of presenting a prima facie case are
flexible and depend on the particular situation. Id.Once the plaintiff has made a prima facie case, a rebuttable presumption
arises that the employer has acted illegally. Id. The employer can rebut that
presumption by articulating one or more legitimate non-discriminatory reasons for
its action. Id. If it does so, the burden shifts back to the plaintiff to produce
evidence that the employer’s proffered reasons are a pretext for discrimination. Id.Despite these shifts in the burden of production, the ultimate burden of persuasion
remains on the plaintiff to show that the defendant intentionally discriminated
against her. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Wilson, 376 F.3d at
1088. Showing only that the employer’s proffered reason is false does not
necessarily entitle a plaintiff to get past summary judgment. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109 (2000)
(stating that even if plaintiff disproved employer’s proffered explanation, employer
would still be entitled to judgment as a matter of law if the record “conclusively
revealed some other, nondiscriminatory reason” for its decision); Chapman, 229
F.3d at 1025 n.11 (applying Reeves in summary judgment context).
18
A.
Alvarez is Cuban-American and, like everyone else, belongs to a protected
group by virtue of her ethnicity. Her credentials and prior experience qualified her
for the job, as evidenced by the fact that Royal Atlantic hired her in the first place.
Royal Atlantic then fired her in spite of the fact that she was qualified. Of course,
the fact that Alvarez was qualified to perform her job competently does not mean
that she actually did so, an issue that is sharply contested by the parties.
Qualifications and experience that get a candidate hired for a job and performance
that is satisfactory enough for her to keep it are two different things. Because
Alvarez’s job performance is bound up in the inquiry into whether Royal Atlantic’s
proffered reason for firing her was a pretext for discrimination, we will consider it
at the pretext stage of the analysis. See Holifield v. Reno, 115 F.3d 1555, 1562 n.3
(11th Cir. 1997). It matters not whether Alvarez has made out a prima facie case if
she cannot create a genuine issue of material fact as to whether Royal Atlantic’s
proffered reasons for firing her are pretext masking discrimination. See Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); see also
Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 & n.5 (11th Cir. 2004)
(district court erred in concluding the plaintiff had not established a prima facie
case, but summary judgment was proper anyway because the record showed that
19
the plaintiff had failed to establish pretext). For that reason, we will assume that
Alvarez has established a prima facie case of discrimination.
B.
If a prima facie case is established, the burden shifts to the employer to rebut
the resulting presumption of discrimination by producing evidence that it acted for
a legitimate non-discriminatory reason. McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824. The defendant need not persuade the court that it was actually
motivated by the proffered reason, but need only present evidence raising a
genuine issue of fact as to whether it discriminated against the plaintiff. Burdine,
450 U.S. at 254, 257, 101 S.Ct. at 1094, 1095–96. However, the defendant’s
response must “frame the factual issue with sufficient clarity so that the plaintiff
will have a full and fair opportunity to demonstrate pretext.” Id. at 255–56, 101
S.Ct. at 1095. The burden then shifts back to the plaintiff to show that the
employer’s proffered reason was not its true reason, which merges with the
plaintiff’s ultimate burden of persuading the court that the employer intentionally
discriminated against her. Id. at 256, 101 S.Ct. at 1095.
Alvarez may satisfy her burden either by offering evidence that Royal
Atlantic more likely than not acted with a discriminatory motive, or by showing
that its proffered reasons are not credible, unless the record conclusively shows
20
that the real motive was a non-proffered reason that is non-discriminatory. See id.;
Reeves, 530 U.S. at 148, 120 S.Ct. at 2109. To show pretext, Alvarez must
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citation omitted). “A plaintiff is
not allowed to recast an employer’s proffered nondiscriminatory reasons or
substitute [her] business judgment for that of the employer. Provided that the
proffered reason is one that might motivate a reasonable employer, an employee
must meet that reason head on and rebut it, and [she] cannot succeed by simply
quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.
Alvarez argues at length that Royal Atlantic’s complaints about the quality
of her work were unfounded, but the fact that she thinks more highly of her
performance than her employer does is beside the point. The inquiry into pretext
centers on the employer’s beliefs, not the employee’s beliefs, and to be blunt about
it, not on reality as it exists outside of the decision maker’s head. See Holifield,
115 F.3d at 1565. The question is not whether it really was Alvarez’s fault that
assignments were not completed on time, or whether she did delegate excessively,
or whether she was aggressive and rude to her colleagues and superiors, or whether
21
she actually lost an important document or truly did fall asleep at her desk. The
question is whether her employers were dissatisfied with her for these or other non-
discriminatory reasons, even if mistakenly or unfairly so, or instead merely used
those complaints about Alvarez as cover for discriminating against her because of
her Cuban origin. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991) (inquiry is limited to whether employer believed employee was guilty of
misconduct and if so, whether that was reason behind discharge; that employee did
not actually engage in misconduct is irrelevant).
In analyzing issues like this one, “we must be careful not to allow Title VII
plaintiffs simply to litigate whether they are, in fact, good employees.” Rojas v.
Florida, 285 F.3d 1339, 1342 (11th Cir. 2002); cf. Wilson, 376 F.3d at 1092(“Whether [plaintiff’s] conduct was insubordinate is not an issue for this Court to
referee.”). The question to be resolved is not the wisdom or accuracy of Heidi’s
conclusion that Alvarez’s performance was unsatisfactory, or whether the decision
to fire her was “prudent or fair.” See Rojas, 285 F.3d at 1342. Instead, “our sole
concern is whether unlawful discriminatory animus motivate[d]” the decision. Id.(quotation marks and citation omitted). Alvarez argues in essence that she did her
job as well as could reasonably be expected, given the mess the company’s
accounts were already in when she got there. But that is no different from arguing
22
that Heidi should have been satisfied with Alvarez’s performance, or that it is
unfair for her not to have been satisfied. That is not the question. Title VII does
not require the employer’s needs and expectations to be objectively reasonable; it
simply prohibits the employer from discriminating on the basis of membership in a
protected class. We do not sit as a “super-personnel department,” and it is not our
role to second-guess the wisdom of an employer’s business decisions—indeed the
wisdom of them is irrelevant—as long as those decisions were not made with a
discriminatory motive. Chapman, 229 F.3d at 1030. That is true “[n]o matter how
medieval a firm’s practices, no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers.” Id. (quotation marks and citations
omitted); see also Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187
(11th Cir. 1984) (“[An] employer may fire an employee for a good reason, a bad
reason, a reason based on erroneous facts, or for no reason at all, as long as its
action is not for a discriminatory reason.”); Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394, 1399 (7th Cir. 1997) (listing, among “embarrassing” but non-actionable
reasons under Title VII, “nepotism, personal friendship, the plaintiff’s being a
perceived threat to his superior, a mistaken evaluation, the plaintiff’s being a
whistleblower, the employer’s antipathy to irrelevant but not statutorily protected
personal characteristics, a superior officer’s desire to shift blame to a hapless
23
subordinate . . . or even an invidious factor but not one outlawed by the statute
under which the plaintiff is suing; . . . or there might be no reason”).
Alvarez’s burden is to show not just that Royal Atlantic’s proffered reasons
for firing her were ill-founded but that unlawful discrimination was the true reason.
See Reeves, 530 U.S. at 148, 120 S.Ct. at 2109 (showing only that proffered
reasons are false does not necessarily get plaintiff past summary judgment). Here,
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.
24
She was free to set unreasonable or even impossible standards, as long as she did
not apply them in a discriminatory manner.
The fact that each previous controller was fired under similar circumstances
is strong evidence that however unattainable Heidi’s standards may have been, she
applied them indiscriminately to Cubans and non-Cubans alike. Although the
record contains no details about their performances, we do know that Agrawal, a
non-Cuban, lasted only about three months before he was fired for not meeting
Heidi’s standards. And we know that Leach, a non-Cuban, lasted only about two
months before he was fired for the same reason.9 Alvarez, at least, established a
new record of longevity in the position, staying on board for about four months
before the decision was made to fire her for not satisfying Heidi. Alvarez points to
her testimony that Heidi displayed a “superior” attitude and “talked down” to her,
but that does not suggest discrimination when, as Alvarez conceded, Heidi behaved
exactly the same way toward all her employees, Cubans and non-Cubans alike.
This is a classic example of the Vince Lombardi rule: someone who treats
everyone badly is not guilty of discriminating against anyone. See Baldwin, 480
F.3d at 1301 n.1. As we said in the Baldwin case, “It would be paradoxical to
9
Because it is Alvarez’s burden to show that the “very high expectations” proffered
reason is pretextual, any lack of detail in the record about the job performances of Agrawal and
Leach does not help her. See Chapman, 229 F.3d at 1024–25.
25
permit a plaintiff to prevail on a claim of discrimination based on indiscriminate
conduct.” Id. at 1301. Heidi’s dissatisfaction with and firing of the two non-
Cuban men who held the controller position before Alvarez is strong evidence that
no one could please her regardless of their nationality. She was indiscriminately
persnickety.
The only evidence Alvarez has offered that there was more to the decision to
get rid of her than Heidi’s perfectionism is the single stray remark “Cubans are
dumb,” which was not made by one of the ultimate decision makers, and Alvarez’s
own conclusory observation that Cubans “seem to get terminated at a very high
rate without justification,” which she never backed up with any specifics.10 That
evidence is too weak to raise a genuine fact issue. See Reeves, 530 U.S. at 148,
120 S.Ct. at 2109 (employer would be entitled to judgment as a matter of law if
plaintiff created “only a weak issue of fact” as to whether proffered reason was
untrue, and there was “abundant and uncontroverted independent evidence that no
discrimination had occurred”); Rojas, 285 F.3d at 1342–43 (stray remark “isolated
and unrelated to the challenged employment decision” was insufficient by itself to
establish genuine fact issue on pretext). We conclude that summary judgment in
10
Alvarez also testified that other employees told her they heard similar discriminatory
remarks, but she did not offer any affidavits or deposition testimony from them. Her testimony
about what she heard secondhand is inadmissible hearsay, which cannot be used to defeat
summary judgment. See Rojas, 285 F.3d at 1342 n.3.
26
favor of Royal Atlantic was proper on the discrimination claim, even though our
reasons for reaching that conclusion are different from the district court’s. See
Turlington, 135 F.3d at 1433 n.9.
V.
Title VII’s anti-retaliation provision makes it unlawful for an employer to
discriminate against an employee “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.” 42 U.S.C. § 2000e-3(a). To make a
prima facie showing of retaliation, the plaintiff must show: (1) that she engaged in
statutorily protected conduct; (2) that she suffered adverse employment action; and
(3) that there is “some causal relation” between the two events. See McCann v.
Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). Alvarez’s October 3, 2006 letter to
Edwin Verdezoto, which described itself as a “formal complaint” of
discrimination, is statutorily protected conduct.
There is no doubt that plans were underway to fire Alvarez even if she had
not complained of discrimination as she did in her letter. Although Heidi denied
those plans when Alvarez confronted her about them in late September, Alvarez
justifiably did not believe her denial. And neither could a reasonable jury believe
27
the denial. It is undisputed that, as Alvarez had learned, Heidi had begun searching
for a new controller weeks before Alvarez sent her letter of complaint. So, the
letter could not have caused the decision to fire Alvarez.
Still, the evidence establishes that the letter did cause Alvarez to be fired the
day after she emailed it, which is sooner than she otherwise would have been, and
that is enough to establish the adverse action element of her retaliation claim. The
loss of a salary for a period of months, weeks, or days is a “materially adverse”
action which “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006) (quotation marks omitted);
see id. at 72–73, 126 S.Ct. at 2417–18 (suspension without pay for 37 days was
materially adverse even though employee later received back pay); Reynolds v.
CSX Transp., Inc., 115 F.3d 860, 868 (11th Cir. 1997) (concluding that “almost a
week” without pay was adverse action), vacated on other grounds, 524 U.S. 947,
118 S.Ct. 2364 (1998).
The district court concluded that Alvarez’s retaliation claim failed because
Royal Atlantic offered several legitimate reasons, other than her letter of
complaint, that caused it to fire Alvarez. Among the reasons the district court
accepted was that Royal Atlantic had been planning to fire Alvarez anyway. That
28
reason begs the question of when she would have been fired but for the letter. As
we have explained, it is undisputed that sending the letter caused her to be fired
sooner. Edwin testified that the letter caused him to fire her immediately, and
Heidi testified that but for the letter Alvarez would not have been fired as soon as
she was. See supra at 11–12. So, the first proffered reason cannot support
summary judgment for Royal Atlantic.
The second and third reasons Royal Atlantic gave for firing Alvarez, which
are closely related, are that her letter made it clear she was unhappy working for
the company and that 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.
29
Royal Atlantic’s final proffered reason for firing Alvarez after it received her
letter of complaint gives us more pause. The company said that it had to get rid of
Alvarez when it did because the Verdezotos were afraid that she might vindictively
use her position as controller, with access to company computers and bank
accounts, to sabotage the company’s operations. This reason can be viewed in two
ways. One way is that the company did not fire her because she complained about
discrimination, but because her letter of complaint revealed that she was mad at the
company, which acted in order to remove an angry person from a sensitive position
instead of for retaliatory reasons. Another way to view the company’s position is
as an admission that it fired Alvarez because she complained, which would
ordinarily constitute prohibited retaliation, but that there should be an affirmative
defense when the termination is necessary to protect the company or others from
retaliatory acts by the employee. In other words, the company had to take
preemptive action, which otherwise might be considered retaliation, in order to
avoid the employee’s improper retaliation against the company or others because
of her belief that she had been discriminated against. The difference would be the
motive or goal of the company’s action: whether it was to discourage or punish
complaints about discrimination or to protect the company from improper actions
by a disgruntled employee.
30
However it is characterized, we are not prepared to dismiss the idea out of
hand. A few hypotheticals will show why. Suppose an employee with reason to
believe that she has been discriminated against works in the control room of a
nuclear power plant, and in her letter complaining of discrimination says that:
“I’m mad as hell and I’m not going to take it anymore!” Or suppose she is a pilot
and makes that statement in her letter of complaint. Or suppose she was not in a
position to endanger the public, but her letter complaining of discrimination makes
it clear that she is psychologically unstable and a danger to those who work around
her. Discrimination laws do not require that their goals be pursued at the cost of
jeopardizing innocent life or that employers tolerate a serious risk that employees
in sensitive positions will sabotage the company’s operations. We are confident
that if an employer removes an employee because of a reasonable, fact-based fear
of sabotage or violence, the anti-retaliation provisions of our laws will not punish
that employer for doing so.
The only issue we have before us in this case is whether Royal Atlantic was
entitled to summary judgment on this ground—whether there is no genuine issue
of material fact that Royal Atlantic had a reasonable basis to believe that unless she
were fired immediately Alvarez might sabotage its operations. The record does not
conclusively establish that the company had reason to believe she might do so.
31
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.11
We emphasize that Title VII’s anti-retaliation provisions do not allow
employees who are already on thin ice to insulate themselves against termination
or discipline by preemptively making a discrimination complaint. The record does
establish that Royal Atlantic had legitimate non-discriminatory reasons to fire
Alvarez before she complained, and it remained free to act on those reasons
afterward. The one thing Royal Atlantic could not lawfully do is fire her earlier
than it otherwise would have because she complained about discrimination, at least
not unless something in her complaint or the manner in which she made it gave the
company an objectively reasonable basis to fear that unless Alvarez was fired she
11
Alvarez never sought summary judgment in her favor on her retaliation claim, and we
do not venture any opinion on whether she was entitled to it, because that issue is not before us.
32
would sabotage its operations or endanger others. See Merritt v. Dillard Paper Co.,
120 F.3d 1181, 1191 (11th Cir. 1997).
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. The Verdezotos both testified that their initial plan
had been to keep Alvarez on board until they had lined up her replacement. How
quickly they would have done that if Alvarez had not accelerated matters by
making her complaint is a question of fact. We learned at oral argument that the
controller position remained vacant for at least three years after Alvarez was fired.
The reason for that delay, and whether or not the Verdezotos would have changed
their plans and fired Alvarez at some point during that time if she had not sent her
complaint letter, is unclear from the record. That issue can be resolved at trial, if
necessary.
33
VI.
Alvarez also makes parallel discrimination and retaliation claims under the
Florida Civil Rights Act of 1992. See Fla. Stat. § 760.10. Because the FCRA is
modeled after Title VII, and claims brought under it are analyzed under the same
framework, see Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387
(11th Cir. 1998) (citing Florida case law), the state-law claims do not need separate
discussion and their outcome is the same as the federal ones. See Albra v. Advan,
Inc., 490 F.3d 826, 834 (11th Cir. 2007) (federal case law on Title VII is applicable
to construe the FCRA); Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA
2007) (same). It follows that Royal Atlantic is entitled to summary judgment on
the state-law discrimination count but not on the state-law retaliation count.
VII.
We affirm the district court’s grant of summary judgment in favor of Royal
Atlantic on Counts I and III. We reverse the grant of summary judgment on
Counts II and IV, and remand to the district court for further proceedings
consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
34