Alvarez v. Royal Atl. Developers Inc, 08-15358.

• Citation: 610 F.3d 1253
• Decision Date: 02 July 2010
• Docket Number: No. 08-15358.,08-15358.
• Parties: Eliuth M. ALVAREZ, Plaintiff-Appellant,v.ROYAL ATLANTIC DEVELOPERS, INC., a Florida corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

610 F.3d 1253

Eliuth M. ALVAREZ, Plaintiff-Appellant,v.ROYAL ATLANTIC DEVELOPERS, INC., a Florida corporation, Defendant-Appellee.

No. 08-15358.

United States Court of Appeals Eleventh Circuit.

July 2, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Martin Eric Leach, Feiler, Leach, P.L., Coral Gables, FL, for Plaintiff-Appellant.

Jennifer L. Poole, Epstein, Becker & Green, P.C., Miami, FL, Michael W. Casey, III, Epstein Becker & Green, P.C., Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and HULL, Circuit Judges, and GOLDBERG, ^* Judge.

CARNES, Circuit Judge:

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 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 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 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, 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 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 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.

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...