In yet another setbeck for the overconfident employment defense bar, the Atlanta-based Eleventh Circuit Court of Appeals reversed a Miami federal judge's summary judgment ruling and reinstated an employment retaliation lawsuit for trial. In Alvarez v. Royal Atlantic Developers, Judge Carnes, in his usual colorful and literary manner, noted that the employer's confession that the employee's complaint of discriminatory treatment constituted protected activity under Title VII and confession that the employer terminated the employee because of the complaint should have resulted in the plaintiff's claims "sailing through" summary judgment. Once you read this early passage, you pretty much can stop reading:
"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."
For some reason too many employers and defense counsel wrongly believe that employers can come up with whatever excuse is necessary to justify an otherwise illegal termination or demotion. Unfortunately there are several bad opinions that remain binding that seem to suggest that the employer's hypothetical argument that it would have taken certain hypothetical action even if, hypothetically, the employer did not also consider the employee's statutorily protected rights is a defense that prevents an unlawfully terminated employee from even having his or her day in court. This "hypothetical" defense argument is a legal fiction that has no place in a court of law that concerns itself with what actually happened, as opposed to what might have happened.
The complaint Alvarez opinion is reproduced in its entirety here:
Alvarez v. Royal Atlantic Developers
Congrats to Martin Leach for this appellate win. If you have questions about this opinion, or any questions concerning employment discrimination and retaliation, feel free to contact an experienced employment lawyer today.
