Although it may seem counterintuitive, experts say it is not unusual for employers to successfully defend an underlying discrimination charge but still find themselves charged with retaliation.

This was what occurred in a case resolved in 2011 in which the defendant was represented by defense attorney Richard D. Tuschman, a shareholder with Akerman Senterfitt L.L.P. in Miami, although he ultimately succeeded in having the litigation dismissed. Not only was the original discrimination charge dismissed, but the retaliation charge proceeded to trial even though the plaintiff had died.

According to a July 2010 ruling in the case by the 11th U.S. Circuit Court of Appeals in Miami in Eliuth Alvarez v. Royal Atlantic Developers Inc., Heidi Verdezoto, chief financial officer for Miami-based Royal Atlantic, decided four months after hiring Cuban-American Ms. Alvarez in May 2006 to fire her because the plaintiff did not meet her standards.

Of the two previous controllers who were hired and fired in late 2005 and 2006, one, an Indian-American, had lasted about three months and the second, an Anglo-American, was on the job only two months before being terminated, according to the ruling. Ms. Verdezoto's family, which owns the business, is originally from Ecuador, the ruling stated.

There were sharply divided opinions between Ms. Alvarez and her employer as to her competency, with Ms. Alvarez stating she had done well and Royal Atlantic claiming she “never competently assumed” the job's responsibilities, according to the ruling.

“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 judge's grant of summary judgment against her on that claim could easily have been affirmed,” said the appellate court's three-judge panel in its unanimous ruling.

%%BREAK%%

Instead, Ms. Alvarez “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,” said the ruling.

When Ms. Alvarez learned of the firm's plans to replace her, she wrote a letter of protest to CEO Edwin Verdezoto that complained, in part, of discrimination based on her national origin. She was fired the next morning, on Oct. 4, 2006. At that point, the firm had not yet hired a new controller.

Ms. Alvarez sued in May 2007, charging the firm with discrimination based on her national origin and retaliation. A lower court dismissed all the charges, concluding she had failed to make a prima facie case of discrimination.

The district court said also that Royal Atlantic had offered legitimate, nonretaliatory reasons for firing her, including that the firm had been planning to fire her anyway.

The appellate court upheld dismissal of the discrimination charges. “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,” said a three-judge appellate panel. “She was indiscriminately persnickety.”

Mr. Tuschman said, “The idea that some Ecuadorans are going to be discriminating against Cubans at a company based in Miami is, on its face, a little farfetched,” given the number of Cubans who worked at the company “and the fact that Miami is a very Cuban town.”

However, the appellate court ruled Ms. Alvarez could proceed to trial on the retaliation claim. The letter of complaint Ms. Alvarez wrote “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,” said the ruling.

%%BREAK%%

“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,'” said the appeals court in quoting the U.S. Supreme Court's 2006 ruling in Burlington Northern & Sante Fe Railway Co. v. Sheila White. In that case, the plaintiff alleged she was reassigned to a different job and temporarily suspended in retaliation for her sexual harassment complaint.

Ms. Alvarez died in March 2009. However, the retaliation claim still went to trial, with Ms. Alvarez' deposition testimony submitted, and in June 2011 a jury awarded her estate $25,000, including $5,481 in compensatory damages and $19,519 in punitive damages.

“Fortunately, we were able to get the judgment vacated for reasons unrelated to its merits” because Ms. Alvarez had failed to disclose that she had filed for bankruptcy, which she was obligated to do by both the federal district and bankruptcy courts, Mr. Tuschman said.

“The record in this case demonstrates intentional manipulation of both this court and the bankruptcy court,” said Judge Joan A. Lenard, of federal district court in Miami, in granting Royal Atlantic's motion to vacate judgment on Dec. 1, 2011, more than four-and-a-half years after the lawsuit was originally filed.