Jordan v. Alternative Resources ( 2006 )

ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT L. JORDAN, 
Plaintiff-Appellant,
v.
ALTERNATIVE RESOURCES
CORPORATION; INTERNATIONAL
BUSINESS MACHINES CORPORATION,
Defendants-Appellees.
 No. 05-1485
THE METROPOLITAN WASHINGTON
EMPLOYMENT LAWYERS ASSOCIATION;
PUBLIC JUSTICE CENTER; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Supporting Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-04-1091-8-DKC)
Argued: March 14, 2006
Decided: May 12, 2006
Decided on Rehearing: August 14, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
2 JORDAN v. ALTERNATIVE RESOURCES CORP.
Affirmed by published opinion. Judge Niemeyer wrote the majority
opinion, in which Judge Widener joined. Judge King wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Stephen Zak Chertkof, HELLER, HURON, CHERTKOF,
LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for
Appellant. Paul D. Ramshaw, UNITED STATES EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION, Appellate Services, Wash-
ington, D.C., for Equal Employment Opportunity Commission,
Amicus Supporting Appellant. William C. Sammons, TYDINGS &
ROSENBERG, Baltimore, Maryland, for Appellees. ON BRIEF:
Douglas B. Huron, Tammany M. Kramer, HELLER, HURON,
CHERTKOF, LERNER, SIMON & SALZMAN, P.L.L.C., Washing-
ton, D.C., for Appellant. Marc R. Jacobs, SEYFARTH SHAW,
L.L.P., Chicago, Illinois, for Appellee Alternative Resources Corpo-
ration; J. Hardin Marion, Melvina C. Ford, TYDINGS & ROSEN-
BERG, Baltimore, Maryland, for Appellee International Business
Machines Corporation. R. Scott Oswald, EMPLOYMENT LAW
GROUP, P.L.L.C., Washington, D.C., for The Metropolitan Washing-
ton Employment Lawyers Association and Public Justice Center,
Amici Supporting Appellant. Eric S. Dreiband, General Counsel,
James L. Lee, Deputy General Counsel, Lorraine C. Davis, Acting
Associate General Counsel, Vincent J. Blackwood, Assistant General
Counsel, UNITED STATES EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Equal Employment
Opportunity Commission, Amicus Supporting Appellant.
OPINION
NIEMEYER, Circuit Judge:
When the news broke in October 2002 that police in Montgomery
County, Maryland, had captured two black men suspected of being
the snipers who had randomly shot 13 individuals, killing 10, in sepa-
rate incidents over a period of weeks in Maryland, Virginia, and the
JORDAN v. ALTERNATIVE RESOURCES CORP. 3
District of Columbia, an IBM employee watching the news on televi-
sion in one of IBM’s Montgomery County offices exclaimed, "They
should put those two black monkeys in a cage with a bunch of black
apes and let the apes f—k them." A fellow employee, Robert Jordan,
who is black, was in the room at the time and heard the exclamation.
Jordan was offended and discussed the incident with two other co-
workers, who told him that the employee had made similar comments
before. Jordan then reported the incident to management. A month
later Jordan was fired, purportedly because he was "disruptive," his
position "had come to an end," and management personnel "don’t like
you and you don’t like them."
Jordan sued IBM and Alternative Resources Corporation ("ARC"),
alleging that they jointly were his employer, for retaliation in viola-
tion of Title VII of the Civil Rights Act of 1964, and for breach of
contract, fraud, and violations of local employment laws. Pursuant to
the motion of IBM and ARC, the district court dismissed the com-
plaint by order dated March 30, 2005, under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted, and entered judgment on April 26, 2005. The court held
that Jordan was not protected by Title VII from his employers’ retali-
ation because no objectively reasonable person could have believed
that, in reporting the incident to management, Jordan was opposing
an unlawful hostile work environment.
Jordan appealed, and, for the reasons that follow, we affirm.
I
In his complaint, Jordan alleges that in October 2002, he was
employed jointly by ARC and IBM in Montgomery County, Mary-
land, because of the business relationship between the companies. He
had entered into an at-will employment relationship with ARC in
December 1998 as a network technician and, before October 2002,
had been assigned to work at the IBM office in Gaithersburg, Mont-
gomery County, Maryland.
Jordan alleges that, while in the network room at IBM’s office on
October 23, 2002, he heard his co-worker, Jay Farjah, who was
watching television, exclaim — not directly to Jordan but in his pres-
4 JORDAN v. ALTERNATIVE RESOURCES CORP.
ence — "They should put those two black monkeys in a cage with a
bunch of black apes and let the apes f--k them." Farjah was speaking
to the television in response to a report that John Allen Muhammad
and Lee Boyd Malvo had been captured.*
Over a period of three weeks, Muhammad and Malvo shot 13 peo-
ple in public places in the greater Washington, D.C. metropolitan area
from hidden positions. They killed 10 people and seriously wounded
3. Soon after the snipers’ names and a description of their car were
released by Montgomery County police late on October 23, Malvo
and Muhammad were arrested. Jordan and Farjah were watching this
breaking news report on a television at the IBM facility.
In his complaint, Jordan states that he was offended by Farjah’s
statement and reported it to two IBM supervisors, Mary Ellen Gillard
and C.J. Huang, explaining that he believed that Farjah should not
utter racist comments in the office. After Gillard spoke with Farjah,
who claimed that he only said, "They should put those two monkeys
in a cage," Jordan told Gillard he was going to raise his complaint
with Ron Thompson, IBM’s site manager. Jordan also complained to
ARC manager Sheri Mathers.
Jordan alleges that during the month following his complaints
about Farjah’s inappropriate statement, Gillard delayed Jordan’s work
shift by two-and-a-half hours and gave him additional work assign-
ments. Jordan also alleges that Huang made a derogatory remark and
gestured toward Jordan at an office Thanksgiving party. On Novem-
ber 21, 2002, ARC manager Mathers telephoned Jordan and fired him
because, as Jordan alleges, he was "disruptive," his position "had
come to an end," and IBM employees and officials "don’t like you
and you don’t like them."
*Jordan’s complaint alleges that Jordan and Farjah were watching the
television report "immediately" after Muhammad and Malvo’s capture
on "October 23." While Montgomery County police identified Muham-
mad and Malvo late in the evening of October 23, 2002, the two were
not captured until the early morning hours of October 24, 2002. This dis-
crepancy, however, is immaterial, and we assume what has been alleged
in the complaint to be true for purposes of reviewing the dismissal order.
JORDAN v. ALTERNATIVE RESOURCES CORP. 5
Alleging retaliatory discharge in violation of 42 U.S.C. § 2000e-
3(a), 42 U.S.C. § 1981, and related state laws, Jordan sued IBM and
ARC based on his claim that they fired him for complaining about
Farjah’s statement. IBM and ARC filed a motion under Federal Rule
of Civil Procedure 12(b)(6), alleging that the complaint failed to state
a claim upon which relief can be granted. While the defendants’
motion to dismiss was pending, Jordan filed a motion for leave to file
an amended complaint to add an allegation that after hearing Farjah’s
remark, he discussed it with several co-workers, and "[a]t least two
of the co-workers told Jordan that they had heard Farjah make similar
offensive comments many times before." Jordan also proposed to add
new state law claims for breach of contract, fraud, and wrongful dis-
charge.
The district court granted the defendants’ motion to dismiss, and in
doing so not only ruled on the original complaint, but also considered
the proposed amended complaint, concluding that it too failed to state
a claim upon which relief could be granted. The court held that IBM
and ARC could not be liable for retaliation because "Plaintiff has
failed to allege that he engaged in a statutorily protected activity." As
the court explained, "A plaintiff bringing a claim under the opposition
clause of Title VII must at a minimum have held a reasonable good
faith belief at the time he opposed an employment practice that the
practice was violative of Title VII" (internal quotation marks, alter-
ations, and citation omitted). The court concluded that "Farjah’s com-
ment, which [Jordan] does not allege was directed at him, simply is
not such a violation." Addressing the proposed amended complaint,
the court stated that the additional facts alleged
still [do] not make "objectively reasonable" Plaintiff’s belief
that Defendants engaged in unlawful employment practices
by allowing an abusive working environment to persist. . . .
[N]o facts are alleged to indicate that these prior comments,
taken alone or in conjunction with the incident involving
Plaintiff, constituted a hostile work environment. Plaintiff’s
amended complaint does not specify the frequency, severity,
or nature of the prior comments, nor even any aspect of their
content; it merely states that "two of the co-workers told
Jordan that they heard Farjah make similar offensive com-
ments many times before."
6 JORDAN v. ALTERNATIVE RESOURCES CORP.
From the district court’s April 26, 2005 judgment dismissing Jordan’s
complaint, Jordan filed this appeal.
II
Our review of an order granting a motion to dismiss filed under
Federal Rule of Civil Procedure 12(b)(6) is de novo and focuses only
on the legal sufficiency of the complaint. In conducting this review,
we "take the facts in the light most favorable to the plaintiff," but "we
need not accept the legal conclusions drawn from the facts," and "we
need not accept as true unwarranted inferences, unreasonable conclu-
sions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P’ship, 213 F.3d 175, 180 (4th Cir. 2000); see also Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
III
At the heart of Jordan’s complaint is the allegation that IBM and
ARC retaliated against him because he complained about Farjah’s
racist exclamation, made in response to a television report that the
two snipers had been captured. Farjah’s comment, directed at the
news report, was the only time that Jordan had ever heard a racist
comment from Farjah. Moreover, Jordan does not complain of any
other similar statements made to him by others or heard by him in the
workplace. He contends, however, that his complaint about Farjah’s
comment involved an "incipient violation" of Title VII and therefore
is protected by § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) (prohib-
iting discrimination when an employee has opposed a practice made
unlawful by Title VII). Otherwise, as Jordan argues, "[F]ew workers
would accept this early-reporting invitation [to report violations] if
they knew they could be fired for their efforts."
IBM and ARC contend that Title VII protects an employee against
retaliation for opposing workplace conduct only if the employee had
both a subjective belief and an objectively reasonable belief that the
employer had engaged in activity that violated the discrimination stat-
utes. The defendants argue that on the facts alleged in this complaint,
Jordan’s belief could not have been objectively reasonable because "a
plethora of authority holds squarely to the contrary . . . [that] a single
verbal incident in the workplace, no matter how racially charged, is
JORDAN v. ALTERNATIVE RESOURCES CORP. 7
[in]sufficient to create a racially hostile work environment." They
assert that "because the law on this point is so clear, Jordan [could
not] have held an objectively reasonable belief to the contrary."
The relevant provision of Title VII reads:
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment
practice by this subchapter.
42 U.S.C. § 2000e-3(a). The plain meaning of the statutory language
provides protection of an employee’s opposition activity when the
employee responds to an actual unlawful employment practice. Read-
ing the language generously to give effect to its purpose, however, we
have also held that opposition activity is protected when it responds
to an employment practice that the employee reasonably believes is
unlawful. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07
(4th Cir. 2005) (citing United States ex rel. Wilson v. Graham County
Soil & Water Conservation Dist., 367 F.3d 245, 255 (4th Cir. 2004),
vacated on other grounds 125 S. Ct. 2444 (2005); and Nealon v.
Stone, 958 F.2d 584, 590 (4th Cir. 1992)); see also Peters v. Jenney,
327 F.3d 307, 320-21 (4th Cir. 2003). Because the analysis for deter-
mining whether an employee reasonably believes a practice is unlaw-
ful is an objective one, the issue may be resolved as a matter of law.
See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per
curiam) (resolving the objective reasonableness of Title VII plaintiff’s
beliefs through the summary judgment procedure).
The "unlawful employment practices" that an employee can
oppose, and thereby be protected from retaliation, include practices
that "discriminate against any individual with respect to his compen-
sation, terms, conditions, or privileges of employment, because of
such individual’s race." 42 U.S.C. § 2000e-2(a)(1). Such discrimina-
tion includes maintaining a racially hostile work environment, i.e., a
"workplace . . . permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the condi-
tions of the victim’s employment and create an abusive working envi-
ronment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67
8 JORDAN v. ALTERNATIVE RESOURCES CORP.
(1986) (internal quotation marks omitted)). Courts determine
"whether an environment is sufficiently hostile or abusive by ‘looking
at all the circumstances,’ including the ‘frequency of the discrimina-
tory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreason-
ably interferes with an employee’s work performance.’" Faragher v.
City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris,
510 U.S. at 23); see also Breeden, 532 U.S. at 270 ("[W]orkplace
conduct is not measured in isolation"). "A recurring point in these
opinions is that simple teasing, off-hand comments, and isolated inci-
dents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." Faragher, 524
U.S. at 788 (citations and internal quotation marks omitted).
Unlike other, more direct and discrete unlawful employment prac-
tices, hostile work environments generally result only after an accu-
mulation of discrete instances of harassment. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) ("Hostile envi-
ronment claims are different in kind from discrete acts. Their very
nature involves repeated conduct. . . . Such claims are based on the
cumulative effect of individual acts"); Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 184 (4th Cir. 2001).
In this case, both Jordan and the defendants agree that Jordan’s
complaint to IBM and ARC’s managers was opposition activity and
that the only conceivable unlawful employment practice that Jordan
could have been opposing was a hostile work environment. Thus, the
question reduces to whether Jordan complained about an actual hos-
tile work environment or, if there was not one, whether Jordan could
reasonably have believed there was one.
A
On the question of whether Jordan was complaining of an actual
hostile work environment made unlawful by Title VII, we conclude
that he was not. While Farjah’s comment on October 23, 2002 (or
October 24) was unacceptably crude and racist, it was an isolated
response directed at the snipers through the television set when Farjah
heard the report that they had been arrested. Because the remark was
rhetorical insofar as its object was beyond the workplace, it was not
JORDAN v. ALTERNATIVE RESOURCES CORP. 9
directed at any fellow employee. Moreover, it was a singular and iso-
lated exclamation, having not been repeated to Jordan or in his pres-
ence before or after October 23, 2002. Jordan does not and cannot
allege in his complaint that Farjah’s comment altered the terms and
conditions of his employment. Based on all that Jordan knew, Jordan
concluded that the remark reflected unacceptable racism and should
not have been made. And while we agree with Jordan’s sentiment, we
conclude that such an allegation is a far cry from alleging an environ-
ment of crude and racist conditions so severe or pervasive that they
altered the conditions of Jordan’s employment with IBM or ARC.
The complaint does not describe a workplace permeated by racism,
by threats of violence, by improper interference with work, or by con-
duct resulting in psychological harm. See Faragher, 524 U.S. at 787-
88.
B
The question of whether Jordan could reasonably have believed
that he was complaining of a hostile work environment made unlaw-
ful by Title VII requires more discussion and must be determined
through an objective-reasonableness inquiry, as exemplified by our
decision in EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th
Cir. 2005).
In Navy Federal, management had concocted a secret and elaborate
scheme to create an unfavorable personnel record and then, based on
the fabricated record, fire a black female employee in retaliation for
her internal complaints about race, sex, and age discrimination. The
employee’s supervisor refused to participate in the plan. When the
supervisor’s employment was terminated because the supervisor
resisted management’s plan, the EEOC sued Navy Federal for retalia-
tion. We held that the supervisor’s resistance and refusals were oppo-
sition activity protected by § 2000e-3(a) even though Navy Federal’s
management had not yet accomplished its discriminatory scheme by
firing the black female employee. Thus, even though Navy Federal
probably was not yet liable for actually discriminating against the
black female employee, we held that the supervisor nonetheless held
"a reasonable belief that Navy Federal was unlawfully retaliating"
against the employee because management "[had] set in motion a
plan to terminate [the black female employee] in retaliation for her
10 JORDAN v. ALTERNATIVE RESOURCES CORP.
complaints of racial discrimination, while at the same time seeking to
conceal their improper motives." Navy Federal, 424 F.3d at 407(emphasis added). Stated otherwise, because there was no question
that Navy Federal’s plan, if accomplished, would have resulted in a
Title VII violation and management had unmistakably begun to
implement the plan, we held that the supervisor could reasonably
have believed that she was opposing an employment action made
unlawful by Title VII. Indeed, but for the supervisor’s opposition,
Navy Federal’s management would have succeeded in their attempted
unlawful discrimination.
In this case, Jordan argues that he had an objectively reasonable
belief that Title VII was about to be violated because "had [Farjah]
continued, unabated, his conduct would at some point have ripened
into [a] racially hostile work environment." While in the abstract,
continued repetition of racial comments of the kind Farjah made
might have led to a hostile work environment, no allegation in the
complaint suggests that a plan was in motion to create such an envi-
ronment, let alone that such an environment was even likely to occur.
Navy Federal holds that an employee seeking protection from retalia-
tion must have an objectively reasonable belief in light of all the cir-
cumstances that a Title VII violation has happened or is in progress.
Under § 2000e-3(a) as construed by Navy Federal, we cannot simply
assume, without more, that the opposed conduct will continue or will
be repeated unabated; rather, the employee must have an objectively
reasonable belief that a violation is actually occurring based on cir-
cumstances that the employee observes and reasonably believes.
When considering the facts alleged by Jordan in his complaint, no
objectively reasonable person could have believed that IBM’s Mont-
gomery County office was in the grips of a hostile work environment
or that one was taking shape. That is, no objectively reasonable per-
son could have believed that the IBM office was, or was soon going
to be, infected by severe or pervasive racist, threatening, or humiliat-
ing harassment. Jordan had been employed at the location for four
years and had not complained of any racist or abusive incidents. On
the day in question, Jordan overheard Farjah speak a single abhorrent
slur prompted by — though not excused by — a breaking news
report. As Jordan acknowledges in his complaint, Farjah was in Jor-
dan’s presence at the time, but he was not talking directly to Jordan
JORDAN v. ALTERNATIVE RESOURCES CORP. 11
or to any employee. Although Jordan could reasonably have con-
cluded that only a racist would resort to such crudity even in times
when emotions run high, the mere fact that one’s coworker has
revealed himself to be racist is not enough to support an objectively
reasonable conclusion that the workplace has likewise become racist.
Jordan’s proposed amended complaint added allegations that, after
hearing Farjah’s comment, Jordan spoke to several co-workers and
two of them referred to some similar statements made by Farjah in the
past. But Jordan never experienced them, nor did he witness a work-
place affected by them. From his coworkers’ vague references, Jordan
did not know about where or when such statements were made, or
what Farjah said except that the statements were similar. There is,
moreover, no allegation that any of those earlier statements interfered
with Jordan’s or any other employee’s work performance, were com-
plained about, or gave rise to a hostile environment at Jordan’s work-
place. Although these observations tended to confirm that Farjah
makes racist comments, no allegation reasonably supports the infer-
ence that they were likely to recur at a level sufficient to create a hos-
tile work environment. Jordan rests his case on the assumption that
Farjah would repeat the remarks that he made on October 23 more
frequently than his past history indicates; Jordan makes no allegations
justifying this assumption.
Arguing for a rule that would protect virtually any complaint about
a racist remark, Jordan maintains that, as a policy matter, "it is imper-
ative that employees report harassment early" and that, in this case,
he "was acting to prevent a hostile environment from arising." He
argues that the Navy Federal reasonableness requirement stands in
tension with the early reporting policy incentives discussed in Bur-
lington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998), and
Faragher, 524 U.S. at 806, especially because we have held that
employers are not liable for an employee’s unlawful harassment of
another employee if the harassed employee has unreasonably refused
to report or has unreasonably waited many months before reporting
a case of actual discrimination. See Barrett v. Applied Radiant Energy
Corp., 240 F.3d 262, 267-68 (4th Cir. 2001); see also Matvia v. Bald
Head Island Mgmt., Inc., 259 F.3d 261, 269-70 (4th Cir. 2001) (hold-
ing that an employee need not forestall reporting a workplace harasser
in order to "collect evidence" against him so long as the conduct was
12 JORDAN v. ALTERNATIVE RESOURCES CORP.
actionable, i.e., that it was unwelcome, based on the employee’s gen-
der, "and sufficiently pervasive or severe to alter the conditions of
employment") (emphasis added)). Employees, Jordan argues, are left
in "a double-bind — risking firing by reporting harassing conduct
early, or waiting to report upon pain of having an otherwise valid
claim dismissed."
Jordan’s dilemma, that the law is inconsistent by both encouraging
and discouraging "early" reporting, is presented too abstractly. The
strong policy of removing and preventing workplace discrimination
can and does coexist with Navy Federal’s objective reasonableness
standard — a standard that pervades Title VII jurisprudence. See Bur-
lington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415
(2006). If Jordan were right, our opinion in Navy Federal would have
been considerably shorter. We would not have provided an analysis
of the reporting employee’s reasonable belief in the existence of a
Title VII violation. Rather, we would have concluded more simply
that, by reporting on her supervisor’s uncompleted yet abstractly ille-
gal scheme, the Navy Federal plaintiff was protected by the policy
favoring early reporting. Navy Federal recognized, however, that
despite this policy, Congress did not write the antiretaliation provision
in Title VII to protect employees who, with no more than good faith,
complain about conduct that no reasonable person would believe
amounts to an unlawful employment practice.
Jordan overlooks the fact, which is fundamental to Title VII juris-
prudence, that there is a difference between an isolated racial slur,
which is always and everywhere inappropriate, and the sort of severe
or pervasive conduct that creates a hostile work environment. "Title
VII does not prohibit all verbal or physical harassment in the work-
place." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998); see also id. (reasoning that Title VII will not become "a gen-
eral civility code for the American workplace" so long as courts pay
"careful attention to the requirements of the statute"). Although the
distinction between a racial slur and a hostile workplace may at a
highly abstract level seem a difficult one for employees to manage,
the distinction should not be conceived of in the abstract but rather
in light of the Navy Federal objective reasonableness standard, which
serves to protect an employee’s judgment in a close case. Objectively
reasonable employees can and do recognize that not every offensive
JORDAN v. ALTERNATIVE RESOURCES CORP. 13
comment will by itself transform a workplace into an abusive one.
Therefore it sometimes will not be reasonable for an employee to
believe that the isolated harassing event he has witnessed is a compo-
nent of a hostile workplace that is permeated with discriminatory
intimidation, ridicule, and insult.
Moreover, Jordan’s dilemma is at its core a false dilemma, compar-
ing the qualitative requirement of objective reasonableness in report-
ing with the laches concept espoused in Faragher and developed in
Matvia. See Faragher, 524 U.S. at 807 (holding that an employee
cannot "unreasonably fail[ ] to take advantage of any preventive or
corrective opportunities" (emphasis added)); Matvia, 259 F.3d at 270(holding that an employee who waited nearly three months after the
first actionable incident of sexual harassment waited too long). When
he argues that he risks being fired by reporting too early, he refers to
reporting when there is insufficient conduct about which to complain;
but when he argues that he risks dismissal of his claim by reporting
too late, he refers to the inordinate time delay as described in Matvia.
The concepts are not comparable and create no dilemma.
The time constraint of Matvia, moreover, is of limited applicability
in any comparison because it only prevents an employee who waited
unreasonably long to take advantage of an employer’s antiharassment
policy from overcoming the employer’s affirmative defense based on
the existence of that policy under Ellerth and Faragher. But the
employee can belatedly report discriminatory conduct and still be pro-
tected from retaliation. The employee enjoys that immunity so long
as he reports an unlawful employment practice or an employment
practice that an objectively reasonable employee would believe is
unlawful. Thus, an employee who unreasonably delays acting on his
discrimination claim and thereby loses his right to a judicial remedy
under Matvia still has the incentive to report the unlawful conduct,
under the protection of the antiretaliation statute, because of the
increased likelihood that his employer will remedy the conduct extra-
judicially in order to maintain the effectiveness of its antidiscrimina-
tion policy.
As the law stands, employees are not subject to conflicting incen-
tives. Complaining employees are protected by Title VII once they
have an objectively reasonable belief that a Title VII violation has
14 JORDAN v. ALTERNATIVE RESOURCES CORP.
occurred, and they have a reasonable amount of time in which to
bring their concern to their employers’ attention if they want to pro-
tect their right to sue their employers. Only at an impermissibly high
level of generality, where meaningful distinctions can no longer be
observed, can it be argued that the law inconsistently encourages
employees to report and at the same time not to report violations, and
Jordan’s argument, if accepted, would lead to the adoption of a new
rule that protects employees who have no reasonable belief that a
Title VII violation has occurred, contrary to the statutory limits of the
law. When considered in actual application, the objective reasonable-
ness standard protects the reporting employee.
Jordan’s argument that the Navy Federal rule creates a perverse
incentive for employers to "fire workers quickly before they have
[Title VII] claims" is hyperbolic. Employers who trap employees by
firing those who use their antiharassment reporting procedures could
very well lose their affirmative defense in cases where employees do
not report suspected violations, for this circuit requires that employers
prove, by a preponderance of the evidence, that their antiharassment
policies are "effectively enforced" before they may use such policies
to defeat discrimination claims. White v. BFI Waste Servs., LLC, 375
F.3d 288, 299 (4th Cir. 2004).
Congress limited the scope of retaliation claims, and Navy Federal
amply, indeed generously, protects employees who reasonably err in
understanding those limits. We are unwilling to extend Navy Federal
and establish a rule tantamount to a statutory civility code. Accord-
ingly, we affirm the district court’s conclusion that Jordan’s com-
plaint in this case, as well as his proposed amended complaint, fails
to state a claim upon which relief can be granted.
IV
The remaining counts of Jordan’s complaint, which are grounded
essentially on the same core allegations that support his Title VII
claim, fail to state claims upon which relief can be granted for reasons
similar to or deriving from those supporting dismissal of his Title VII
claim.
With respect to his claims for unlawful retaliation under 42 U.S.C.
§ 1981 and Montgomery County Code § 27-19(c)(1), Jordan
JORDAN v. ALTERNATIVE RESOURCES CORP. 15
acknowledges that the applicable principles are the same as those for
determining liability under Title VII. See Honor v. Booz-Allen &
Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (with respect to
§ 1981); Magee v. DanSources Technical Servs., Inc., 769 A.2d 231,
252-53 (Md. Ct. Spec. App. 2001) (with respect to the Montgomery
County Code). Because there is no actionable Title VII retaliation
alleged, these claims based on the same analysis must also fail.
V
Jordan also contends that the district court erred in dismissing his
discrimination claim under 42 U.S.C. § 1981 — as distinct from his
retaliation claim — for failing to state a claim upon which relief can
be granted. Citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002),
he argues that under notice pleading he may state a claim upon which
relief can be granted by relying on his complaint, which alleges 24
paragraphs of facts and concludes with the allegation that "his race
was a motivating factor" in being fired. Because the concluding alle-
gation is supported by neither the alleged facts nor the fair inferences
to be drawn from them, the defendants contend that it is no more than
a conclusory allegation that "does not satisfy any pleading standard."
Jordan responds that he does not rely on the single allegation that his
race was a motivating factor and that the single allegation should not
be read in isolation. The count alleging a § 1981 discrimination claim,
he states, "incorporates all prior factual allegations detailed in the
complaint," and the final conclusory allegation follows from the facts
alleged. He maintains that his complaint is significantly more detailed
than that upheld in Swierkiewicz.
In alleging his § 1981 discrimination claim, which is Count VII of
his complaint, Jordan did incorporate by reference paragraphs 1-24 of
the complaint, and thus, as he claims, these paragraphs constitute the
facts of Count VII. The 24 paragraphs, which constitute the only fac-
tual allegations of the complaint, begin with the summary that the
defendants fired Jordan "because he complained about conduct that he
reasonably believed constituted a hostile work environment or would,
if unabated, constitute such an environment." After alleging jurisdic-
tion and describing the parties, he sets forth the specific events that
formed the grounds of his complaint. First, he describes the event on
October 23, 2002, when Farjah made the racist remark while he and
16 JORDAN v. ALTERNATIVE RESOURCES CORP.
Farjah were standing in IBM’s network room watching a television
report about the capture of Malvo and Muhammad. He alleges also
that on that same day he reported the remark to coworkers and to
three different managers. He related how one of the managers
reported back that Farjah denied making the remark in the form
alleged by Jordan. Jordan thereafter reported the remark to another
manager. Finally Jordan alleges that the defendants retaliated against
him for reporting the remark, first by changing his schedule and his
job assignments and then, about a month later, by firing him. The
complaint alleges that when Jordan was notified about being fired, the
defendants gave as their reasons that Jordan was "disruptive," his
position "had come to an end," and that "IBM ‘don’t like you and you
don’t like them.’" Jordan alleges that these reasons were a pretext and
that the real reason for which he was fired was "his opposition to Far-
jah’s racially offensive statement."
After setting forth these facts and incorporating them into Count
VII, the complaint concludes with the allegation that "Jordan’s race
was a motivating factor in the conduct and decisions of IBM and/or
ARC."
In evaluating Count VII on the defendants’ motion to dismiss under
Rule 12(b)(6), the district court read it as alleging that Jordan was
fired for reporting a racist remark but as failing to demonstrate any
basis from which to conclude that his own race "played any role in
his termination." The court observed that the only person alleged to
have engaged in racist conduct was Farjah, and "Farjah [was] not
alleged to have contributed to Jordan’s termination." The court con-
cluded:
His § 1981 claim is therefore insufficient as a matter of law.
Although no facts alleged thus far have indicated that
Defendants discriminated against Plaintiff because of his
race, the court will permit Plaintiff to amend this count to
allege any such facts.
Jordan elected to rest on his complaint as written, advising the district
court that he would not avail himself of the opportunity to amend and
requesting the court to enter a final judgment on his § 1981 discrimi-
nation count.
JORDAN v. ALTERNATIVE RESOURCES CORP. 17
Only now, for the first time in his reply brief on appeal, does Jor-
dan provide a theory of how his complaint purports to state a claim
of racial discrimination under § 1981. He states:
The facts in this case raise a strong inference of retaliation,
but they also raise an inference of discrimination based on
race. When appellees learned that an IBM employee, Jay
Farjah, made a crude racist remark to Robert Jordan, they
took no action against Farjah and instead fired Jordan, an
African-American employee who asked them to stop the
offensive behavior. This raises an inference that the relevant
managers tolerated racist comments, or even condoned
them. And since Farjah had made similar comments many
times before, a jury could infer that this conduct was noth-
ing new for the managers. Tolerating or condoning racist
comments in the workplace is itself evidence of racial bias,
. . . and evidence of bias, along with the unexplained firing
of a good employee, is a sufficient factual basis for a jury
to conclude that Jordan was treated more harshly in his situ-
ation than he would have been if he were white.
For a § 1981 discrimination claim, Jordan must allege that he is a
member of a racial minority; that the defendants’ termination of his
employment was because of his race; and that their discrimination
was intentional. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993). In his complaint, however, Jordan
has not demonstrated how Farjah’s racism could be imputed to the
defendants on a basis by which relief under § 1981 could be afforded.
Instead of amending his complaint to state a viable claim, Jordan sim-
ply rested on his illogical conclusory statement that his race was a
"motivating factor" for his firing, without explaining how that conclu-
sion is consistent with the allegations that he has made. In just such
circumstances, we have rejected reliance on similar conclusory alle-
gations, particularly when the plaintiff, like Jordan, has purported to
set forth in detail the facts upon which his claims are based. See Bass,
324 F.3d at 765 (holding that conclusory allegations that the employer
discriminated against the plaintiff "because of her race and sex" were
not sufficient to allege a claim when the facts of the complaint did not
support the conclusory allegation); see also Eastern Shore Mkts., 213
18 JORDAN v. ALTERNATIVE RESOURCES CORP.
F.3d at 180 (in reviewing a Rule 12(b)(6) motion, "[w]e need not
accept the legal conclusions drawn from the facts").
Jordan first defends his purported allegation of a § 1981 discrimi-
nation claim by contending that it conforms to the lenient standards
of notice pleading permitted by the rules and affirmed in Swier-
kiewicz. But the district court’s dismissal order was not premised on
Jordan’s failure to give notice of his claim to the parties. Rather, it
concluded that what was alleged failed to state a discrimination claim
under § 1981 upon which relief can be granted. Even with notice
pleading, a complaint purporting to describe the events justifying
relief must nonetheless demonstrate that relief can be granted in those
circumstances.
Rule 8(a) of the Federal Rules of Civil Procedure provides that a
complaint filed in federal court must contain, inter alia, "a short and
plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). And Rule 12(b)(6) authorizes dis-
missal of a complaint that "fails to state a claim upon which relief can
be granted." The holding in Swierkiewicz does not eliminate the need
to comply with these rules. In Swierkiewicz the Supreme Court held
that the Second Circuit’s "heightened pleading standard," requiring a
civil rights plaintiff to plead facts that constitute a prima facie case
under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
demanded too much of the pleader. The Court observed that the plain-
tiff’s case might not even depend on a demonstration of the prima
facie case under McDonnell Douglas. As the Court stated:
[U]nder a notice pleading system, it is not appropriate to
require a plaintiff to plead facts establishing a prima facie
case because the McDonnell Douglas framework does not
apply in every employment discrimination case. For
instance, if a plaintiff is able to produce direct evidence of
discrimination, he may prevail without proving all the ele-
ments of a prima facie case.
* * *
It thus seems incongruous to require a plaintiff, in order to
survive a motion to dismiss, to plead more facts than he may
JORDAN v. ALTERNATIVE RESOURCES CORP. 19
ultimately need to prove to succeed on the merits if direct
evidence of discrimination is discovered.
534 U.S. at 511-12. But that holding, which recognizes that the prima
facie case is a standard of proof distinct from the essential elements
of a cause of action, left untouched "the burden of a plaintiff to allege
facts sufficient to state all the elements of her claim." Bass, 324 F.3d
at 765 (emphasis added); see also Dickson v. Microsoft Corp., 309
F.3d 193, 213 (4th Cir. 2002) ("[T]he Supreme Court’s holding in
Swierkiewicz v. Sorema did not alter the basic pleading requirement
that a plaintiff set forth facts sufficient to allege each element of his
claim" (internal citation omitted)).
Consequently, when a plaintiff’s complaint sets forth facts in sup-
port of his claim for relief and tracks the language of the applicable
cause of action, the legal conclusions "are not talismanic" because "it
is the alleged facts supporting those words, construed liberally, which
are the proper focus at the motion to dismiss stage." Bass, 324 F.3d
at 765. In Bass, the plaintiff pleaded that her employer discriminated
against her "because of her race and sex." Id. (quoting the plaintiff’s
complaint). Yet she supported this allegation with "a story of a work-
place dispute regarding her reassignment and some callous behavior
by her superiors," which did "not seem to have anything to do with
gender, race, or age harassment." Id. Construing the Bass plaintiff’s
complaint in her favor, we were unable to determine how her story
involved any discrimination "because of her race and sex."
Jordan’s count for a § 1981 discrimination claim is similarly defi-
cient. The count conclusorily states that the defendants violated
§ 1981 because race was a motivating factor in his termination. Yet
the 24 paragraphs of facts that are made part of that count provide no
support for the violation, just as was the case in Bass. Like the district
court, we cannot discern in his claim any way that Jordan’s race fac-
tored into his termination.
To salvage his claim, Jordan argues for the first time on appeal that
"inferences" may be drawn from his complaint to support a § 1981
discrimination claim. He states (1) that his managers must be racist
because they did not fire the racist but did fire him, and (2) that in fir-
20 JORDAN v. ALTERNATIVE RESOURCES CORP.
ing him, his managers treated him more harshly than they did white
employees.
These matters, however, are not alleged in the complaint, and they
cannot now be taken as amendments to the complaint. Indeed, the dis-
trict court gave Jordan ample leeway and opportunity to amend his
complaint, an opportunity that Jordan refused.
Moreover, these new allegations are not fair inferences inasmuch
as they are mere speculation and argument. It does not follow that a
manager who does not fire an alleged racist is therefore himself a rac-
ist, and it does not follow that a racist who fires an employee did so
because of his racism. There is also no basis in the complaint to con-
clude that Jordan, as a complaining black employee, was treated dif-
ferently from a white complaining employee. Indeed, there is no
suggestion that any employee other than Jordan complained to man-
agement about a racist comment.
Jordan’s "inferences" thus are simply unwarranted inferences that
do not provide support for a statement of claim. See Eastern Shore
Mkts., 213 F.3d at 180.
Accordingly, we affirm the district court’s order dismissing Jor-
dan’s discrimination claim under 42 U.S.C. § 1981.
VI
Jordan also claims that "IBM’s conduct constituted other unlawful
behavior" as described in Montgomery County Code §§ 27 19(c)(2)-
(c)(4). Section 27-19(c)(2) prohibits assisting in, compelling, or
coercing discriminatory practices prohibited by the Code. The only
discriminatory practice prohibited by the Code that Jordan alleges is
§ 27-19(c)(1) retaliation, but because he has not stated a claim for
which relief can be granted under that provision, he cannot state an
assistance claim under § 27-19(c)(2). The same reasoning compels the
dismissal of Jordan’s § 27-19(c)(3) claim, for obstructing or prevent-
ing enforcement of the Code, and § 27-19(c)(4) claim, for attempting
discriminatory practices prohibited by the Code.
JORDAN v. ALTERNATIVE RESOURCES CORP. 21
VII
Jordan also purports to assert claims for fraudulent inducement or
breach of contract. He alleges that IBM and ARC, by promulgating
anti-harassment policies outlining steps for alerting supervisors to
workplace harassment, encouraged him to report Farjah’s comment
and then fired him for doing so.
In Maryland, a fraud claim must allege that a misrepresentation
was made for the purpose of defrauding the plaintiff and that the mis-
representation’s falsity was known to the defendant. See Gross v.
Sussez, Inc., 630 A.2d 1156, 1161 (Md. 1993). But Jordan fails to
allege that the defendants, in creating and distributing their policies,
acted with a purpose to defraud and with the knowledge that represen-
tations made by them were false. The fraud claim must fail for lack
of those essential elements.
Jordan’s claim for breach of contract must fail because IBM’s and
ARC’s anti-discrimination policies were not enforceable contracts.
While Jordan concedes this fact, he argues that we should apply
promissory estoppel to "prevent injustice." Maryland courts, which
disapprove of the term "promissory estoppel," have incorporated the
Restatement (Second) on Contracts to adopt the analogous doctrine of
"detrimental reliance," a tort that does not sound in fraud. See Pavel
Enterprises, Inc. v. A.S. Johnson Co., 674 A.2d 521, 532 (Md. 1996);
id. at 533 n.29. To show detrimental reliance on a promise, Jordan
must allege a clear and definite promise. But the policies of both IBM
and ARC expressly disclaim creating enforceable obligations. More-
over, the policies do not clearly promise that employees will not be
discharged if they report conduct they believe to be harassment.
VIII
Jordan also claims that IBM tortiously interfered with his ARC
employment contract, pleading this claim in the alternative on the
assumption that IBM was not his joint employer. In response to the
district court’s dismissal of this claim because Jordan was an at-will
employee, Jordan now argues that his ARC employment was contrac-
tual "in nature," albeit not a contract for a fixed term and thus termi-
nable at will.
22 JORDAN v. ALTERNATIVE RESOURCES CORP.
In Macklin v. Robert Logan Assocs., 639 A.2d 112, 113 (Md.
1994), the Maryland Court of Appeals noted the existence of a
"broader right" that entitles a plaintiff to sue even when "no contract
or a contract terminable at will is involved" — the right to be pro-
tected from interference with economic relations. Thus, Jordan’s tor-
tious interference claim must be analyzed as a claim for interference
with economic relations. See Alexander & Alexander, Inc. v. B. Dick-
son Evander & Assocs., 650 A.2d 260, 268 n.13 (Md. 1994)
("Interference with a contract terminable at will is analyzed as inter-
ference with economic relations broadly, and not interference with a
specific contract"). Interference with economic relations requires
showing tortious intent and wrongful or improper conduct. Macklin,
639 A.2d at 119. In Alexander & Alexander, the Court of Appeals
held that "wrongful or malicious interference with economic relations
is interference by conduct that is independently wrongful or unlawful"
and went on to identify such conduct as "violence or intimidation,
defamation, injurious falsehood or other fraud, violation of criminal
law, and the institution or threat of groundless civil suits or criminal
prosecutions in bad faith." 650 A.2d at 271 (emphasis added) (internal
quotation marks omitted).
Jordan has not alleged any conduct that is independently unlawful
and accordingly fails to state a claim upon which relief can be
granted.
IX
Finally, Jordan alleges that he was wrongfully discharged.
Although the Maryland Court of Appeals acknowledges the general
rule that an at-will employee can be fired at any time, it has also cre-
ated an exception that an employer cannot fire an at will employee for
a reason that violates a statute or public policy. See Adler v. Am. Stan-
dard Corp., 432 A.2d 464 (Md. 1981). In Adler, the court specifically
held that the complaint must allege that the employee’s discharge
"contravened some clear mandate of public policy." Id. at 473. But
such a claim may not become a substitute for violations of public pol-
icy for which a statute provides its own remedies. See Makovi v.
Sherwin-Williams Co., 561 A.2d 179 (Md. 1989).
JORDAN v. ALTERNATIVE RESOURCES CORP. 23
While Jordan alleges that his discharge violates "Maryland public
policy[, which] prohibits employers from punishing employees who
report racially offensive behavior that they believe in good faith vio-
lates anti-discrimination laws," Maryland already provides statutory
remedies for employees alleging retaliation, and those laws’ objective
criteria indicate that there is no public policy to protect employees
simply for subjectively acting in good faith. The district court prop-
erly dismissed this claim also.
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
KING, Circuit Judge, dissenting:
My colleagues of the panel majority have today concluded that, as
a matter of law, it was not reasonable for an African-American
employee to think that the on-the-job remark made by his IBM co-
worker — "[t]hey should put those two black monkeys in a cage with
a bunch of black apes and let the apes fuck them" — warranted being
reported to his employers as a potential Title VII violation. And, in
the majority’s view, Plaintiff Robert Jordan has not sufficiently
alleged that IBM’s decision to fire him for making that report was
racially motivated. I disagree and write separately to elaborate on my
position. First, in ruling that Jordan has not stated a Title VII retalia-
tion claim, the majority has misconstrued the facts and misapplied the
law, placing employees who experience racially discriminatory con-
duct in a classic "Catch-22" situation. Second, its conclusion that Jor-
dan has not stated a claim of a racially discriminatory discharge is
contrary to controlling Supreme Court precedent.1
1
By order of July 5, 2006, we unanimously granted panel rehearing,
thereby vacating the panel majority’s earlier decision, which had
affirmed the district court’s dismissal order, see Jordan v. Alternative
Res. Corp., 447 F.3d 324 (4th Cir. 2006), and from which I had dis-
sented, see id. at 336 (King, J., dissenting). By its decision today, the
majority has again affirmed the district court’s dismissal order. In so
24 JORDAN v. ALTERNATIVE RESOURCES CORP.
I.
This proceeding is on appeal after having been dismissed under
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. In reviewing such a ruling, we are obliged to accept the facts
alleged by Jordan as true, and review those allegations in the light
most favorable to him. See Lambeth v. Bd. of Comm’rs, 407 F.3d 266,
268 (4th Cir. 2005). A proper application of these principles under-
mines the majority’s decision in this case.
In October 2002, Jordan, an employee of IBM and ARC since
December 1998, was standing near his IBM co-worker, Jay Farjah, in
a television room at their IBM worksite in Maryland. Amend. Compl.
¶ 9.2 They were watching reports on the capture of two snipers (both
African-American) who had terrorized the Washington, D.C. area that
fall. Id. As they watched, Farjah loudly stated his position that "[t]hey
should put those two black monkeys in a cage with a bunch of black
apes and let the apes fuck them" (the "‘black monkeys’ comment").
Id. Immediately after Farjah made the "black monkeys" comment,
Jordan reported it to other co-workers. Id. ¶ 10. Two of those co-
workers related to Jordan that "they had heard Farjah make similar
offensive comments many times before." Id. Armed with this knowl-
edge, and pursuant to IBM’s policy that its employees were obliged
to report racially discriminatory conduct to management, Jordan
advised C. J. Huang and Mary Ellen Gillard, two of his IBM manag-
doing, it has rewritten its earlier opinion to reduce the importance of the
snipers’ capture in its discussion of Jordan’s Title VII claim (although
the capture remains prominent in the majority’s analysis of that claim),
and in an endeavor to further explain its decision concerning Jordan’s
§ 1981 discrimination claim, which had previously been relegated to two
conclusory sentences, see id. at 334 (majority opinion). In these circum-
stances, I am disappointed that our panel rehearing has merely prolonged
the decisional process, without altering the result reached.
2
The district court denied as futile Jordan’s motion to amend. In so rul-
ing, however, the court considered the allegations of the Amended Com-
plaint together with those of the Complaint. At oral argument, IBM
conceded that the Amended Complaint’s allegations are before us in this
appeal.
JORDAN v. ALTERNATIVE RESOURCES CORP. 25
ers, of the "black monkeys" comment. Id. at ¶¶ 11-12. When Jordan
requested that the IBM managers speak with Farjah and tell him "not
to make such comments," the IBM managers directed Jordan to put
the "black monkeys" comment in writing (and he obliged). Id. at ¶ 12.
Huang then asked Jordan if he had considered the impact that his
complaint might have on Farjah, and suggested that "Farjah may have
been joking." Id. at ¶ 13.
Thereafter, Ms. Gillard reported to Jordan that Farjah admitted to
having said "they should put those two monkeys in a cage," but that
he denied having made the balance of his "black monkeys" comment.
Amend. Compl. ¶ 15. Jordan then advised Gillard that he wanted to
bring his complaint to the attention of Ron Thompson, IBM’s site
manager. Id. Jordan also discussed the comment with Sheri Mathers,
an ARC manager. Id. at ¶ 14.
Jordan’s working conditions took a downward turn immediately
after he reported Farjah’s "black monkeys" comment to IBM manage-
ment. Amend. Compl. ¶ 16. Prior to reporting the comment, Jordan
had been authorized to start his work day at 6:30 a.m., which permit-
ted him to pick up his son after school. Id. Without notice or explana-
tion, Gillard changed Jordan’s work schedule, requiring him to report
to work at 9:00 a.m. each day, thereby precluding him from picking
up his son from school. Id. Jordan also received a sudden increase in
his workload. Id. at ¶ 17. And at the office Thanksgiving party,
"Huang made a crude, derogatory remark and gesture to Jordan." Id.
Then, on November 21, 2002 — about a month after he first com-
plained to IBM’s managers of Farjah’s "black monkeys" comment —
Jordan was fired from his job, at IBM’s request. Id. at ¶ 19. Accord-
ing to the allegations, IBM had Jordan fired "because of his opposi-
tion to Farjah’s racially offensive statement." Id. at ¶ 20. Furthermore,
IBM’s decision to retaliate against Jordan was made "because he is
African-American," and his "race was a motivating factor." Id. at
¶ 42.
II.
To begin with, the severity of Farjah’s racially hostile "black mon-
keys" comment merits our consideration. It is plain that a reference
to our African-American fellow citizens as "monkeys" reflects the
26 JORDAN v. ALTERNATIVE RESOURCES CORP.
speaker’s deep hostility towards them — on the sole basis of their
color. And it is equally clear that such comments constitute profound
insults to our friends in the African-American community. By refer-
ring to African-Americans as "monkeys," the speaker plays on his-
toric, bigoted stereotypes that have characterized them as uncivilized,
non-human creatures who are intellectually and culturally inferior to
whites. See, e.g., Jennifer M. Russell, On Being a Gorilla in Your
Midst, or, the Life of One Blackwoman in the Legal Academy, 28
Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (discussing message con-
veyed by gorilla picture placed anonymously in mailbox of African-
American law professor: "‘Claim no membership to the human race.
You are not even a sub-species. You are of a different species alto-
gether. A brute. Animal, not human.’").3 Indeed, our Court probably
understated the impact of such racially charged references in recently
observing that "‘[t]o suggest that a human being’s physical appear-
ance is essentially a caricature of a jungle beast goes far beyond the
merely unflattering; it is degrading and humiliating in the extreme.’"
White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004)
(quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.
2001)).
In his "black monkeys" comment, Farjah openly opined that the
"black monkeys" should be put in a "cage with a bunch of black apes"
so that the "apes" could "fuck them." While we must endeavor to do
so, our panel is scarcely qualified to comprehend the impact such a
remark would have on the reasonable African-American listener. Suf-
fice it to say that, in a single breath, Farjah equated African-
3
Professor D. Marvin Jones, who has researched and written exten-
sively on the subject, has observed that:
The Europeans . . . equated "the unknown" with the uncivi-
lized, and uncivilized men with animals. Hence, it is not surpris-
ing that the early Roman historian Herodotus reported that
Africa was filled with "dog eared men, and the headless that
have eyes in their chests." The historical record is replete with
examples of Europeans attributing animal characteristics to
blacks, culminating in controversial conjecture originating in . . .
seventeenth[-]century England that blacks had sprung from apes.
See D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the
Racial Self, 82 Geo. L.J. 437, 466 (1993).
JORDAN v. ALTERNATIVE RESOURCES CORP. 27
Americans with "black monkeys" and "black apes," and implied a
savage, bestial sexual predilection acutely insulting to members of the
African-American community.
III.
In this case, Jordan contends, inter alia, that IBM and ARC fired
him for reporting Farjah’s "black monkeys" comment to IBM’s man-
agers, and that his firing contravened Title VII of the Civil Rights Act
of 1964 (codified at 42 U.S.C. §§ 2000e to 2000e-17). The district
court ruled that his Complaint and Amended Complaint each failed
to state a claim of Title VII retaliation. On appeal, the primary issue
we face is whether Jordan has alleged facts sufficient to show that, in
reporting the "black monkeys" comment to IBM management, he was
engaged in a Title VII protected activity.
Jordan maintains that, in reporting the "black monkeys" comment
to IBM and ARC, he was reasonably opposing a potential racially
hostile work environment. Title VII has been consistently interpreted
as prohibiting conduct that is "so severe or pervasive as to alter the
conditions of the victim’s employment and create an abusive working
environment." Faragher v. City of Boca Raton, 524 U.S. 775, 786
(1998) (internal quotation marks and alteration omitted). A hostile
work environment is unique among the employment practices that
contravene Title VII, in that such an environment normally develops
through a series of separate acts, which might not, standing alone,
violate Title VII. Indeed, such an environment is usually the sum of
several parts. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 117 (2002). And whether a hostile work environment exists in
fact can be a bit of a moving target; there is no "mathematically pre-
cise test." See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).
An employee who opposes a hostile work environment is engaged
in a "protected activity" and cannot be retaliated against. See Title VII
§ 704(a), 42 U.S.C. § 2000e-3(a).4 The Supreme Court emphasized in
4
In relevant part, Title VII, at 42 U.S.C. § 2000e-3(a), prohibits an
employer from discriminating against an employee "because he has
opposed any practice made an unlawful employment practice by this sub-
chapter."
28 JORDAN v. ALTERNATIVE RESOURCES CORP.
June of this year that "Title VII depends for its enforcement upon the
cooperation of employees," and that "effective enforcement [of Title
VII] could thus only be expected if employees felt free to approach
officials with their grievances." Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. ___, 126 S. Ct. 2405, 2414 (2006)(internal quotation
marks omitted). According to the Court, "[i]nterpreting the anti-
retaliation provision to provide broad protection from retaliation helps
assure the cooperation upon which accomplishment of [Title VII’s]
primary objective" — preventing harm — "depends." Id.And we have recognized that a plaintiff pursuing a Title VII retali-
ation claim need not show that the activity he opposed has, in fact,
contravened some aspect of Title VII. Rather, he must simply have a
reasonable belief that Title VII has been — or is in the process of
being — violated by the activity being opposed. See EEOC v. Navy
Fed. Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005); see also
Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (concluding, in
reliance on decisions under Title VII, that "to show ‘protected activ-
ity,’ the plaintiff in a Title VI retaliation case need only prove that he
opposed an unlawful employment practice which he reasonably
believed had occurred or was occurring" (internal quotation marks
and alteration omitted)). Accordingly, we are obliged to vacate the
district court’s ruling if Jordan was engaged in a protected activity
when he complained to IBM, i.e., if he reasonably believed that Title
VII was being contravened when Farjah made his "black monkeys"
comment.
In the majority’s view, Jordan is not protected by Title VII, and
IBM and ARC were thus free to fire him for reporting Farjah’s "black
monkeys" comment. The majority’s conclusion on this point, how-
ever, relies on its misapprehension of Jordan’s allegations and its mis-
application of the controlling legal principles. As a result, its decision
has placed employees like Jordan in an untenable position, requiring
them to report racially hostile conduct, but leaving them entirely at
the employer’s mercy when they do so.
A.
The majority maintains that no reasonable person could believe
that Farjah’s racially charged conduct would continue, because it was
JORDAN v. ALTERNATIVE RESOURCES CORP. 29
"a single abhorrent slur prompted by — though not excused by — a
breaking news report." See ante at 10. On this basis, it concludes that
"Jordan rests his case on the assumption that Farjah would repeat the
remarks that he made on October 23 more frequently than his past
history indicates." Id. at 11. The majority’s position, however, cannot
be reconciled with the allegations of the Amended Complaint.
Our inquiry must focus on Jordan, and whether it was reasonable
for him to believe that Title VII was in the process of being violated
when Farjah’s "black monkeys" comment was made. See Navy Fed.,
424 F.3d at 406-07; Peters, 327 F.3d at 320. Even if the "black mon-
keys" comment was prompted by a news report and not specifically
aimed at Jordan or anyone else in the room, a reasonable person could
readily conclude that, if not confronted, Farjah’s conduct would con-
tinue unabated, altering the working conditions of IBM’s African-
American employees. Indeed, Farjah apparently offered no apology or
explanation (such as that supplied today by the majority) to manifest
any remorse or regret for having made his "black monkeys" comment.
Responding to such blatant and unabashed racism in his workplace,
Jordan "immediately reported [Farjah’s] remark to several co-
workers," and at least two of them advised Jordan "that they had
heard Farjah make similar offensive comments many times before."
Amend. Compl. ¶ 10 (emphasis added). That information confirmed
Jordan’s initial concerns, thereby providing substantial (and ample)
support for his reasonable conclusion that African-American workers
at IBM’s facility were regularly exposed to conduct akin to the "black
monkeys" comment, and that such conduct would continue unless
Farjah was confronted.
In the majority’s view, the information provided by Jordan’s co-
workers, coupled with the "black monkeys" comment, did not allow
Jordan to reasonably believe that Farjah’s conduct would be repeated.
As the majority sees it, a reasonable person could not make heads or
tails out of what his co-workers meant because (1) Jordan had not
experienced the other comments personally, and (2) he "did not know
about where or when such statements were made, or what Farjah said
except that the statements were similar." Ante at 11. Taking the co-
workers’ reports at face value, however, nothing was vague — Farjah
had openly referred to African-Americans as "black monkeys," and he
had made "similar offensive comments many times before." Amend.
30 JORDAN v. ALTERNATIVE RESOURCES CORP.
Compl. ¶¶ 9-10. That the specific content, dates, and conditions of
Farjah’s earlier offensive remarks may not have been communicated
to Jordan is beside the point. The reasonable employee — like Jordan,
an African-American — would have no need to question his co-
workers to determine that Farjah had previously voiced racially hos-
tile comments, and that he was likely to continue doing so. Cf. Matvia
v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001)
(recognizing that victim of harassment is commanded to "report the
misconduct, not investigate, gather evidence, and then approach com-
pany officials"). Accepting Jordan’s allegations as true, he possessed
an objectively valid basis for believing that Farjah had made com-
ments of "similar offens[e]" to his "black monkeys" comment "many
times before." See Amend. Compl. ¶ 10. Jordan was thus entitled to
conclude that what he had witnessed and heard in the television room
was simply "par for the course."
Moreover, Farjah’s "black monkeys" comment opened a window
into his soul, revealing to Jordan a racial animus as ignorant as it was
virulent. It is, in my view, entirely reasonable to believe that a person
who — even in a moment of extreme frustration — equates African-
Americans with "black monkeys" and "black apes," and implies that
they have a bestial sexual appetite, possesses a deep disdain for the
entire black community and would likely repeat his offending con-
duct.
B.
Next, as a matter of law, I do not subscribe to the majority’s view
that, pursuant to Navy Federal, an employee lacks Title VII protection
for reporting racially charged conduct, unless he has "an objectively
reasonable belief that a violation is actually occurring." See ante at
10. On this point, the majority implies that the employee cannot meet
that burden without allegations that "a plan was in motion to create
[a hostile work] environment." Id. This position is simply incorrect,
for at least two reasons. First, requiring an employee to show that a
hostile work environment was being planned imagines a fanciful
world where bigots announce their intentions to repeatedly belittle
racial minorities at the outset, and it ignores the possibility that a hos-
tile work environment could evolve without some specific intention
to alter the working conditions of African-Americans through racial
JORDAN v. ALTERNATIVE RESOURCES CORP. 31
harassment. Second, and relatedly, it fails to take into account the
cumulative nature of a hostile work environment, and is thus at odds
with the broad application of Title VII’s anti-retaliation provision pre-
scribed by the Supreme Court.
As the majority observes, the Supreme Court has treated hostile
work environment claims in a way that accounts for their unique,
additive character. In Morgan, the Court observed that "[a] hostile
work environment claim is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’" See 536
U.S. at 117. It instructed that Title VII "does not separate individual
acts that are part of the hostile environment claim from the whole."
Id. at 118. And the Court has recognized that an employer is entitled
to assert — in order to avoid vicarious liability — the affirmative "El-
lerth/Faragher defense" based in part on an employee’s unreasonable
failure to head off a hostile work environment’s evolution. See
Faragher, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 764-65 (1998).
The Ellerth/Faragher defense, in essence, imposes a duty on an
employee to report harassing and offensive conduct to his employer.
See Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th
Cir. 2001) (recognizing employee’s "duty . . . to alert the employer
to the allegedly hostile environment" (internal quotation marks omit-
ted)). That duty is intended to further Title VII’s "primary objective"
of avoiding harm, rather than redressing it. Faragher, 524 U.S. at
806. The Ellerth/Faragher defense thus stands for the proposition that
an employee who unreasonably fails to report racially hostile conduct
cannot pursue a hostile work environment claim because, by his
silence, he was complicit in the conduct. See id. at 806-07.
Ignoring the Supreme Court’s recent directive that Title VII’s anti-
retaliation provision be broadly construed, see White, 126 S. Ct. at
2414, the majority applies that provision narrowly and restrictively,
failing to account for the cumulative nature of a hostile work environ-
ment. When the cumulative nature of such an environment is properly
considered, it is clear that employees are protected under Title VII
from employer retaliation if they oppose conduct that, if repeated,
could amount to a hostile work environment. See Alexander v. Ger-
hardt Enterprises, Inc., 40 F.3d 187, 190, 195-96 (7th Cir. 1996)
32 JORDAN v. ALTERNATIVE RESOURCES CORP.
(concluding that employee had reasonable, good-faith belief that Title
VII violation was in progress when co-worker, on single occasion,
said "if a nigger can do it, anybody can do it," and apologized shortly
thereafter).
By opposing racially charged conduct that he reasonably believes
could be part and parcel of a hostile work environment, a reporting
employee has opposed the impermissible whole, even absent an inde-
pendent basis for believing the conduct might be repeated. See
Faragher, 524 U.S. at 806-07; see also Morgan, 536 U.S. at 117.
Indeed, in applying the Ellerth/Faragher defense, we require employ-
ees to report such incidents in order to prevent hostile work environ-
ments from coming into being. See Matvia, 259 F.3d at 269("Faragher and Ellerth command that a victim of . . . harassment
report the misconduct, not investigate, gather evidence, and then
approach company officials."); Lissau v. Southern Foods Serv., Inc.,
159 F.3d 177, 182 (4th Cir. 1998) ("[A]ny evidence that [the
employee] failed to utilize [the company’s] complaint procedure will
normally suffice to satisfy its burden under the second element of the
[Ellerth/Faragher] defense." (internal quotation marks and alteration
omitted)). Only a tortured reading of Title VII can validate the propo-
sition that an employee who has taken a step necessary to avoid com-
plicity in a Title VII violation has not "opposed any practice made an
unlawful employment practice." § 2000e-3(a). Indeed, in Barrett, we
recognized that an employee’s "generalized fear of retaliation does
not excuse a failure to report" harassing conduct, because "Title VII
expressly prohibits any retaliation against [employees] for reporting
. . . harassment." See 240 F.3d at 267.
Without question, Farjah’s "black monkeys" comment is the stuff
of which a racially hostile work environment is made. See White v.
BFI Waste Servs., LLC, 375 F.3d 288, 297-98 (4th Cir. 2004) (recog-
nizing pervasive use of terms including "boy," "jigaboo," "nigger,"
"porch monkey," "Mighty Joe Young," and "Zulu warrior" created tri-
able issue of fact on hostile work environment claim); Spriggs v. Dia-
mond Auto Glass, 242 F.3d 179, 182, 185-86 (4th Cir. 2001) (same
for repeated use of racial slurs, including "niggers," "monkeys," and
"black bitch"). On the allegations here, it was entirely reasonable for
Jordan to believe that, in reporting the racially charged "black mon-
keys" comment to his employers, he was opposing a racially hostile
JORDAN v. ALTERNATIVE RESOURCES CORP. 33
work environment. IBM and ARC nonetheless fired him — for sim-
ply reporting this outrageous comment to them — and they thereby
contravened his Title VII rights.5
C.
As a result of today’s decision, employees in this Circuit who expe-
rience racially harassing conduct are faced with a "Catch-22." They
may report such conduct to their employer at their peril (as Jordan
did), or they may remain quiet and work in a racially hostile and
degrading work environment, with no legal recourse beyond resigna-
tion. Of course, the essential purpose of Title VII is to avoid such sit-
uations.
The majority maintains that "Jordan’s dilemma, that the law is
inconsistent by both encouraging and discouraging ‘early’ reporting,
is presented too abstractly." Ante at 12. In my view, however, one
need not venture into abstractions; as our Title VII jurisprudence now
stands, Farjah’s comment thrust Jordan into the narrows between
Scylla and Charybdis.6 By our Matvia decision, we actually "com-
mand[ed]" Jordan to report the "black monkeys" comment, "not
investigate, gather evidence, and then approach company officials."
See 259 F.3d at 269. And we explained that a fear of retaliation by
IBM would not excuse his reporting duty, because such retaliation is
expressly prohibited by Title VII. See id. at 270 ("The bringing of a
retaliation claim, rather than failing to report . . . harassment, is the
5
Jordan has never requested that we, as the majority puts it, transform
Title VII into a "statutory civility code." See ante at 14. Indeed, he has
never even contended that Title VII required IBM to discipline Farjah for
making the "black monkeys" comment. Jordan asserts only that IBM
cannot, consistent with Title VII, fire him for reporting the "black mon-
keys" comment.
6
In Homer’s Odyssey, Odysseus is presented with a difficult choice: he
must sail through straits that are bracketed by two monsters, and he is
forced to navigate closer to one or the other. One choice, Scylla, is a six-
headed creature who is certain to eat six of his crewman, while the other,
Charybdis, spews forth a whirlpool that poses an uncertain risk to the
entire ship and crew. On the advice of the sorceress Circe, Odysseus
chose Scylla, and six of his men perished.
34 JORDAN v. ALTERNATIVE RESOURCES CORP.
proper method for dealing with retaliatory acts." (citation omitted)).
Jordan thus acted at our command and with our offer of protection,
but he has nevertheless been denied our promised lifeline, and has
been left entirely vulnerable.
If Jordan, when he experienced the "black monkeys" comment,
could have foreseen the course of events that would unfold, he would
have recognized that — aside from immediately filing an EEOC com-
plaint — he had but two choices. He could remain silent, in direct
defiance of this Court’s commandment to report racially charged con-
duct as soon as it occurs (thereby allowing Farjah’s pattern of conduct
to continue unchallenged, and forfeiting any judicial remedy he might
have); or he could risk his career in an effort to attack the racist can-
cer in his workplace. Jordan thus speaks from experience when he
contends that our Title VII jurisprudence is inconsistent by both
encouraging and discouraging early reporting. The majority asserts
that there is no conflict between the Ellerth/Faragher duty to report
harassing conduct and the requirement that employees complaining of
harassing conduct have a reasonable belief that Title VII is being vio-
lated by the challenged conduct. According to the majority, the two
doctrines work in harmony: "Complaining employees are protected
by Title VII once they have an objectively reasonable belief that a
Title VII violation has occurred, and they have a reasonable amount
of time in which to bring their concerns to their employers’ attention."
Ante at 13-14.7 The foregoing proposition, however, is only valid if,
as I have contended, employees are always protected by Title VII’s
anti-retaliation provision whenever they are obliged to report
improper conduct under the Ellerth/Faragher defense, as otherwise
some employees will be commanded to report such conduct at their
peril.
Yet, if Title VII protects all employees who comply with the
Ellerth/Faragher defense’s reporting duty, the majority’s decision is
wrong. Although the "black monkeys" comment plainly required
7
Although I do not subscribe to the majority’s characterization of the
Ellerth/Faragher reporting requirement as a "laches concept" that merely
prohibits inordinate time delays between discriminatory or harassing
conduct and reporting, see ante at 13, I accept it arguendo as it nonethe-
less fails to support the majority’s conclusion.
JORDAN v. ALTERNATIVE RESOURCES CORP. 35
reporting under our controlling precedent, the majority rules today
that Jordan was not protected by Title VII’s anti-retaliation provision
when he reported it. Farjah’s "black monkeys" comment thus placed
Jordan into the same legal vacuum that the majority asserts not to
exist. And the employees in this Circuit, who are now compelled to
choose between their livelihoods and their dignity, can surely take lit-
tle comfort in the majority’s insistence that their dilemma "is pre-
sented too abstractly." In the wake of the majority’s decision, there
is simply no room for the employee cooperation the Supreme Court
has just explained as being critical to Title VII’s effectiveness. See
White, 126 S. Ct. at 2414.
The members of the majority further assert that the interplay
between the Ellerth/Faragher defense, on the one hand, and the rea-
sonable belief requirement embodied in our Title VII anti-retaliation
jurisprudence, on the other, "is of limited applicability." Ante at 13.
This is so, they say, because the former concerns only an employee’s
ability to bring suit, while the latter involves whether the employee
can safely complain of harassing conduct. See id. And they offer their
assurance that an employee who "loses his right to a judicial remedy
under Matvia still has the incentive to report" racial harassment. Id.In authorizing private actions under Title VII, however, Congress
exercised its considered judgment that such suits are an essential tool
for ensuring compliance with Title VII’s provisions. And, as the
Supreme Court has observed, the Title VII "anti-retaliation provi-
sion’s primary purpose" is "maintaining unfettered access to statutory
remedial mechanisms." White, 126 S. Ct. at 2412 (internal quotation
marks and alteration omitted). With all respect to my fine colleagues
of the majority, it is not for unelected judges to decide that Congress’s
chosen remedy is unimportant, and that it may be effectively eviscer-
ated by some judicially created "reasonable belief" requirement.
Title VII protects an employee (such as Jordan) who reports harass-
ing conduct under the reasonable belief that he is obliged to do so.
And I disagree wholeheartedly with the majority’s contrary view.8
8
Because Jordan’s other retaliation claims, alleged under 42 U.S.C.
§ 1981 and Montgomery County (Maryland) Code section 27-19, rely on
the same legal principles as his Title VII retaliation claim, I also disagree
with the majority’s ruling that those claims were properly dismissed.
36 JORDAN v. ALTERNATIVE RESOURCES CORP.
IV.
Finally, Jordan has adequately pleaded a claim of a racially dis-
criminatory firing, in contravention of 42 U.S.C. § 1981. In conclud-
ing to the contrary, the majority has brought our jurisprudence into
direct conflict with the Supreme Court’s unanimous decision in
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002). In Swierkiewicz,
the Court relied on the liberal pleading standard of Federal Rule of
Civil Procedure 8(a) in concluding that an employment discrimination
plaintiff’s bare allegation that an adverse employment action had been
taken "on account of" a prohibited ground sufficiently alleges that the
action was so motivated. See 534 U.S. at 514. Yet, the majority today
rules that Jordan’s materially indistinguishable allegation (that he was
fired "because he is African-American" and that his "race was a moti-
vating factor," Amend. Compl. ¶ 42) is insufficient to comply with
Rule 8(a)’s notice pleading requirements.
In Swierkiewicz, the Court unanimously reversed a decision of the
Second Circuit, which required a plaintiff-employee to plead the spe-
cific facts necessary to establish a prima facie case of employment
discrimination under the McDonnell Douglas framework. See 534
U.S. at 515. In so ruling, the Court reiterated that, in order to survive
a Rule 12(b)(6) motion to dismiss in a civil action governed by Rule
8(a) (such as an employment discrimination action), a plaintiff need
only "‘give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.’" Id. at 512 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).9 And, as the Court observed, the
9
The majority asserts that the district court dismissed Jordan’s § 1981
discrimination claim not because of a "failure to give notice of his
claim," but because "what was alleged failed to state a discrimination
claim." Ante at 18. By this, the majority is apparently drawing a distinc-
tion between a complaint that fails to give notice, in that it does not ade-
quately disclose the nature of the plaintiff’s claim, and a complaint that
fails to state a claim, in that its alleged facts provide no legal basis for
recovery. Jordan’s allegations (that he is African-American, that he was
fired, and that the former contributed to the latter), if true, plainly pro-
vide a basis for recovery under § 1981, and I do not read the majority
opinion as holding that an employee may not recover under § 1981 if he
has been fired on account of his race. Thus, the majority’s conclusion can
mean only that Jordan’s allegation — that "race was a motivating factor"
in his discharge — was insufficient to give IBM notice of his discrimina-
tion claim.
JORDAN v. ALTERNATIVE RESOURCES CORP. 37
"simplified notice pleading standard relies on liberal discovery rules
and summary judgment motions to define disputed facts and issues
and to dispose of unmeritorious claims." Id. The Court thus concluded
that Swierkiewicz had stated valid claims of national origin and age
discrimination, where his complaint "alleged that he had been termi-
nated on account of his national origin . . . and on account of his age,"
and further "detailed the events leading to his termination." Id. at 514.
Jordan has amply detailed the events leading to his improper termi-
nation (including the "black monkeys" comment, his consultation
with co-workers, his report to unsympathetic supervisors, and the
abrupt deterioration of his working conditions). And he has specifi-
cally alleged that he was fired for reporting Farjah’s "black monkeys"
comment "because he is African-American," and that his "race was
a motivating factor" in his discharge. Amend. Compl. ¶ 42.10 As such,
he has plainly satisfied Rule 8(a)’s notice pleading requirement, and
he has stated a claim upon which relief can be granted.
In affirming the district court’s dismissal of Jordan’s § 1981 racial
discrimination claim, the majority today announces that, in order to
comply with Rule 8(a), Jordan must detail — in his complaint — all
of the specific facts from which a reasonable jury could conclude that
race entered into IBM’s decision to fire him. Such a requirement sim-
ply cannot be reconciled, however, with the "fair notice" standard
reiterated by the Court in Swierkiewicz, as it collapses into Rule 9(b)’s
more rigorous requirement that causes of action for fraud or mistake
be pleaded with particularity. See Swierkiewicz 534 U.S. at 513(observing, in rejecting Second Circuit’s heightened pleading stan-
dard, that "[t]his Court . . . has declined to extend [Rule 9(b)’s stan-
dard] to other contexts").11 Indeed, according to the majority, Jordan
10
In its ruling, the majority simply misapprehends the nature of Jor-
dan’s discriminatory firing claim, asserting that "Jordan has not demon-
strated how Farjah’s racism could be imputed to the defendants." Ante at
17. By his discrimination claim, Jordan essentially alleges that, in reach-
ing its decision to retaliate against him for reporting the "black monkeys"
comment, IBM concluded that, although a similarly situated white
employee might be allowed to remain on staff, it could not tolerate a
"rabble-rousing" African-American.
11
The majority’s opinion fails to account for the distinction we have
drawn between a failure "to forecast evidence sufficient to prove an ele-
38 JORDAN v. ALTERNATIVE RESOURCES CORP.
apparently must satisfy Rule 9(b)’s pleading standard in order to com-
ply with Rule 8(a).12
Jordan’s allegation that he was fired for reporting the "black mon-
keys" comment "because he is African-American" cannot be distin-
guished from Swierkiewicz’s allegations "that he had been terminated
on account of his national origin" and "his age." Even if Jordan has
failed to allege the specific facts from which one could independently
conclude that IBM was motivated by race when it retaliated against
him, he has made the factual allegation that its decision was so moti-
vated, and he has thus given IBM "‘fair notice of what [his § 1981
discrimination] claim is and the grounds upon which it rests.’" Swier-
kiewicz, 534 U.S. at 512. In concluding otherwise, the majority today
brings us into direct conflict with Supreme Court precedent.13
ment" of the plaintiff’s claim, and a failure "to allege facts sufficient to
state elements" of the claim. Iodice v. United States, 289 F.3d 270, 281
(4th Cir. 2002); see also Swierkiewicz, 534 U.S. at 514. This distinction
is necessary to preserve the discovery process as a method of "discover-
ing," rather than merely confirming, information. When a plaintiff files
his complaint, he cannot be expected to know all of the specific, or even
critical, facts underlying a defendant’s challenged conduct. See Swier-
kiewicz, 534 U.S. at 512 ("Before discovery has unearthed relevant facts
and evidence, it may be difficult to define the precise formulation of the
required prima facie case in a particular case."). Yet, the majority would
require the Rule 12(b)(6) dismissal of any employment discrimination
claim where the plaintiff does not know, before filing his complaint,
those facts necessary to establish that the defendant considered an imper-
missible factor during its internal decision-making process.
12
The majority also misconstrues what constitutes an allegation of
"fact," asserting that Jordan’s allegation that "race was a motivating fac-
tor" in IBM’s decision to fire him is merely a "legal conclusion," which
must be supported by specific factual allegations. See ante at 19. On the
contrary, that IBM fired Jordan "because he is African-American" is
plainly an allegation of fact.
13
The majority’s reliance on our decision in Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761 (4th Cir. 2003), is misplaced. In Bass, we
concluded that the plaintiff had not alleged a hostile work environment
claim because she alleged neither conduct sufficiently severe or perva-
sive to create a hostile work environment, nor that any of the "hostile"
acts were motivated by a protected ground. See 324 F.3d at 765. Jordan,
JORDAN v. ALTERNATIVE RESOURCES CORP. 39
14
Pursuant to the foregoing, I respectfully dissent.
by contrast, has specifically alleged that he was fired (an adverse
employment action) because of his race, or in the alternative that "race
was a motivating factor." Amend. Compl. ¶ 42. In so doing, he provided
IBM adequate notice of his racially discriminatory firing claim. See
Swierkiewicz, 534 U.S. at 514.
14
I would thus reinstate two counts of Jordan’s Amended Complaint:
Count One (retaliation for engaging in protected activity, in contraven-
tion of Title VII, § 1981, and Montgomery County Code section 27-19);
and Count Seven (racially discriminatory firing, in violation of § 1981).