Reya Boyer-Liberto v. Fontainebleau Corporation

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1473
REYA C. BOYER-LIBERTO,
Plaintiff – Appellant,
v.
FONTAINEBLEAU CORPORATION, trading as Clarion Resort
Fontainebleau Hotel; LEONARD P. BERGER,
Defendants – Appellees.
-------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC JUSTICE
CENTER, INC.,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cv-00212-JKB)
Argued: September 18, 2014 Decided: May 7, 2015
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Chief Judge Traxler and Judges Motz,
Gregory, Shedd, Duncan, Keenan, Wynn, Diaz, Floyd, Thacker, and
Harris joined. Judge Wilkinson wrote an opinion concurring in
part and dissenting in part, in which Judge Agee joined. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant. Harriet Ellen Cooperman,
SAUL EWING LLP, Baltimore, Maryland, for Appellees. Paul D.
Ramshaw, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus U.S. Equal Employment Opportunity
Commission. ON BRIEF: Brett S. Covington, SAUL EWING LLP,
Baltimore, Maryland, for Appellees. P. David Lopez, General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Jennifer S. Goldstein, Acting Assistant General Counsel, Office
of General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus U.S. Equal Employment
Opportunity Commission. Stephen Z. Chertkof, Douglas B. Huron,
HELLER, HURON, CHERTKOF & SALZMAN PLLC, Washington, D.C.; Ilana
Gelfman, Francis D. Murnaghan, Appellate Advocacy Fellow, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici Metropolitan
Washington Employment Lawyers Association and the Public Justice
Center.
2
KING, Circuit Judge:
Reya C. Boyer-Liberto, the African-American plaintiff in
these civil rights proceedings, alleges that within a single
twenty-four-hour period in September 2010, while working as a
cocktail waitress at the Clarion Resort Fontainebleau Hotel in
Ocean City, Maryland (the “Clarion”), she was twice called a
“porch monkey” and threatened with the loss of her job by a
Caucasian restaurant manager. Soon after reporting to higher-
ups at the hotel that she had been racially harassed, Liberto
was fired by the Clarion’s owner, Dr. Leonard P. Berger. This
action against the Fontainebleau Corporation and Berger ensued,
with Liberto asserting claims of hostile work environment and
retaliation, under both Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981. The district court awarded summary
judgment to the defendants, see Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212 (D. Md. Apr. 5, 2013), ECF No. 52, and
a not-fully-unanimous panel of this Court affirmed, see Boyer-
Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).
The panel’s decision was vacated, however, by our grant of
rehearing en banc.
As explained below, we now vacate the judgment of the
district court and remand for further proceedings on Liberto’s
claims. In so doing, we underscore the Supreme Court’s
pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775,
3
788 (1998), that an isolated incident of harassment, if
extremely serious, can create a hostile work environment. We
also recognize that an employee is protected from retaliation
when she reports an isolated incident of harassment that is
physically threatening or humiliating, even if a hostile work
environment is not engendered by that incident alone. Finally,
we specify that, to the extent today’s decision is in conflict
with Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th
Cir. 2006), Jordan is hereby overruled.
I.
A.
The record in this matter reflects that on August 4, 2010,
Liberto began working at the Clarion, an oceanfront hotel
containing guest rooms, several restaurants and bars, a
nightclub, and a conference center with meeting and banquet
facilities. 1 During the seven weeks she was employed with the
1
For purposes of our de novo assessment of the district
court’s summary judgment award, we view the facts in the light
most favorable to Liberto, as the nonmoving party. See Laber v.
Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Thus, like
the district court, we accept that Liberto was called a “porch
monkey” on two consecutive days, and that the defendants knew of
at least one of those alleged slurs when the decision to
discharge Liberto was made. See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 3 n.2 (D. Md. Apr. 5,
2013), ECF No. 52. Much of our factual recitation is drawn from
Liberto’s deposition testimony; we do not rely on her
(Continued)
4
Clarion’s Food and Beverage Department, Liberto worked in
assorted roles, including restaurant hostess, restaurant and
banquet server, bartender, and cocktail waitress. According to
Liberto, the Clarion assigned her that variety of jobs so that
she could learn all positions within the Food and Beverage
Department as part of her training.
On the night of September 14, 2010, Liberto was working as
a cocktail waitress in the Clarion’s nightclub. One of her
customers ordered a “Hula Hula,” a drink that is time-consuming
to prepare. The bartender in the adjacent main bar refused to
fill the order, explaining to Liberto that other nightclub
patrons would see the Hula Hula and want that drink, too. In an
effort to please her customer and after consulting immediate
supervisor Jamie Avery, Liberto went beyond the main bar to the
pub bar, where she found a bartender willing to make a Hula
Hula. Once the drink was prepared, Liberto wanted to avoid a
confrontation with the bartender in the main bar, so she chose a
new path back to the nightclub that took her through the
restaurant kitchen. Liberto carried the Hula Hula briskly
through the kitchen and across the nightclub to her customer’s
table. She then went to a server station, which was located in
interrogatory answers, which the district court properly
excluded from consideration. See id.
5
the nightclub several feet from the kitchen doors, to print a
guest check.
At that point, Liberto was confronted by Trudi Clubb, a
white Food and Beverage Manager at the Clarion. Unbeknownst to
Liberto, Clubb had been yelling at Liberto as she passed through
the kitchen carrying the Hula Hula. Liberto soon learned that
Clubb was livid because she believed that Liberto had heard but
ignored her. As Liberto worked at the server station, Clubb
came through the kitchen doors, loudly screaming, “Hey, girl
that can’t hear.” J.A. 237. 2 Clubb, still shouting, quickly
approached Liberto, who turned her face away from Clubb in an
effort to remain calm — a move that made Clubb even more
furious. Clubb then came so close to Liberto that Liberto could
feel Clubb’s breath on her face as Clubb stood at Liberto’s
side. Indeed, continuing to yell at Liberto, Clubb sprayed
Liberto’s face with saliva. Clubb’s message was that Liberto
should have neither walked through the kitchen nor ignored
Clubb, and Liberto repeatedly indicated that she understood and
agreed.
Clubb’s shouting nonetheless persisted, even as Liberto
left the server station to tend to nightclub customers. Clubb
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
6
was now loudly berating Liberto for walking away from her, at
first following Liberto into the nightclub and then moving back
to the server station. Upon Liberto’s subsequent return to that
area, Clubb finally proceeded to exit the nightclub into the
kitchen. As she did so, Clubb threatened Liberto in words that
included, “[I’m] going to get [you]” and “[I’m] going to make
[you] sorry.” J.A. 252-53. Clubb then concluded her threat by
turning to look at Liberto and calling her either a “damn porch
monkey” or a “dang porch monkey.” See id. at 258.
Upon arriving for a dinner shift the following day,
September 15, 2010, Liberto went to the Clarion’s management
office to report Clubb’s conduct to Food and Beverage Director
Richard Heubeck. Liberto had just begun talking to Heubeck when
she was interrupted by Clubb, who came into the office and said
to Liberto, “I need to speak to you, little girl.” J.A. 263.
Liberto responded that she was meeting with Heubeck, but Clubb
retorted, “I’m more important,” prompting Liberto to follow
Clubb out of the office. Id. at 263-64. Clubb and Liberto sat
at a nearby table, and Clubb reprimanded Liberto, in a raised
and angry voice, for passing through the kitchen the prior
night. As the two women then rose from the table and pushed in
their chairs, Clubb threatened, “I’m gonna get you. I’m gonna
go to [hotel owner] Dr. Berger.” Id. at 266. Her voice still
loud and angry though somewhat lower than before, Clubb capped
7
the threat by looking directly at Liberto and again calling her
a “porch monkey.” Id. at 266-68.
On September 16, 2010, Liberto arranged to speak with Human
Resources Director Nancy Berghauer by telephone the following
day. During the September 17 phone call, Liberto complained
that she had been racially harassed by Clubb. From handwritten
notes, Berghauer prepared a typewritten summary of her
discussion with Liberto, which included Liberto’s allegation
that Clubb called her a “porch monkey” on September 15.
Berghauer provided the summary on September 17 to Dr. Berger and
General Manager Mark Elman, and Elman met with Liberto on
September 18 to further discuss her complaint. Meanwhile,
although Clubb denied ever using the term “porch monkey,”
Heubeck issued her a written notice on September 18 advising
that, as “a member of our Food & Beverage Management team
. . . , [Clubb] is expected to conduct herself as such” and
“needs to be cautious the language or phrases she uses can not
be perceived as racist or derogatory.” J.A. 311.
According to Dr. Berger, Liberto’s racial harassment
complaint of September 17, 2010, prompted him to go to Heubeck
that day and ask — for the first time ever — about Liberto’s
performance. In Berger’s account, Heubeck gave a negative
evaluation of Liberto and attributed her variety of job
assignments to failure in every role she tried; thus, after
8
further consulting Elman and Berghauer between September 18 and
20, Berger made the decision to fire Liberto immediately. At
the beginning of her scheduled shift on September 21, Liberto
was notified that she was being discharged.
Whether Clubb had been empowered by the Clarion to fire
Liberto or take other tangible employment actions against her is
unclear on this record. From Liberto’s perspective during her
short time as a Clarion employee, Clubb “was just Dr. Berger’s
friend and she was just there to say hello and greet people as a
glorified hostess.” J.A. 213. Liberto did not know that Clubb
held a manager title and did not consider Clubb to be her
manager. See id. at 214 (Liberto’s deposition testimony that
she reported to Avery and Heubeck, and that Avery told Liberto
“not to go to [Clubb] because [Clubb] did not have the power to
do voids or make decisions”). Nevertheless, Clubb conveyed to
Liberto — and Liberto got the message — that Clubb was in a
position to have Liberto terminated. Before she had finished
just her second week of work at the Clarion, Liberto “felt
extremely singled out” by Clubb and perceived that “my position
was being threatened” by her. See id. at 277-79 (discussing an
August 16, 2010 Twitter message from Liberto to a co-worker
saying that Clubb is “after me like [a] starving wol[f] on a
bone”). Clubb repeatedly told Liberto “what my place was” and
“always made it clear that Dr. Berger would listen to anything
9
she said and wouldn’t believe me.” Id. at 279. Clubb’s conduct
led Liberto to understand that Clubb “did have power that I did
not have.” Id. at 274. Consistent with that perception, Elman
informed Liberto during their September 18, 2010 meeting that
Clubb was Liberto’s “boss.” See id. at 324 (September 18 email
to Heubeck and Berghauer from Elman recounting what he told
Liberto).
B.
On January 23, 2012, after exhausting her administrative
remedies with the federal government’s Equal Employment
Opportunity Commission (the “EEOC”), Liberto filed her complaint
in the District of Maryland. The complaint asserted four
claims: one claim each of hostile work environment and
retaliation pursuant to Title VII against solely the
Fontainebleau Corporation, trading as the Clarion Resort
Fontainebleau Hotel; and one claim each of hostile work
environment and retaliation under 42 U.S.C. § 1981 against both
the Fontainebleau Corporation and Dr. Berger.
1.
Following discovery, the defendants filed a motion for
summary judgment. Contesting the validity of the hostile work
environment claims, the defendants focused on just one of the
four elements of such a claim, contending that there had been no
showing that Clubb’s conduct was severe or pervasive enough to
10
alter Liberto’s conditions of employment and produce an abusive
work environment. See Okoli v. City of Balt., 648 F.3d 216, 220
(4th Cir. 2011) (“To demonstrate . . . a racially hostile work
environment, a plaintiff must show that there is (1) unwelcome
conduct; (2) that is based on the plaintiff’s . . . race;
(3) which is sufficiently severe or pervasive to alter the
plaintiff’s conditions of employment and to create an abusive
work environment; and (4) which is imputable to the employer.”
(alteration and internal quotation marks omitted)); see also
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001)
(explaining that the elements of a hostile work environment
claim “are the same under either § 1981 or Title VII”).
With respect to the retaliation claims, the defendants
argued that Liberto could not establish that she undertook a
protected activity by making her racial harassment complaint to
the Clarion. See EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405-06 (4th Cir. 2005) (“In order to establish a prima facie
case of retaliation, a plaintiff must prove three elements:
(1) that she engaged in a protected activity; (2) that her
employer took an adverse employment action against her; and
(3) that there was a causal link between the two events.”); see
also Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188
(4th Cir. 2004) (recognizing that elements of prima facie § 1981
and Title VII retaliation claims are identical). The defendants
11
elaborated that Liberto’s complaint was not a protected
opposition activity because she could not reasonably have
believed that Clubb’s conduct was sufficiently severe or
pervasive to engender a prohibited hostile work environment.
See Navy Fed., 424 F.3d at 406 (explaining that an opposition
activity, such as making an internal complaint, is protected
where an employee opposes either “employment actions actually
unlawful under Title VII” or “employment actions [she]
reasonably believes to be unlawful”).
2.
In seeking summary judgment, the defendants substantially
relied on our precedent in Jordan v. Alternative Resources
Corp., 458 F.3d 332 (4th Cir. 2006). There, the African-
American plaintiff alleged that, while watching a news report on
a workplace television about the capture of the infamous D.C.
snipers in 2002, a co-worker exclaimed in his presence, “They
should put those two black monkeys in a cage with a bunch of
black apes and let the apes f[uc]k them.” See Jordan, 458 F.3d
at 336. The plaintiff, Jordan, reported the comment to his
supervisors and was fired within a month of his complaint. Id.
at 337. Jordan then filed suit against his employers, alleging,
inter alia, retaliatory discharge in contravention of Title VII
and § 1981. Id. The district court dismissed Jordan’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for
12
failure to state a claim upon which relief can be granted, and
Jordan appealed to our Court, which affirmed by a split panel
decision.
Addressing the Title VII retaliation claim, the opinion of
the panel majority related that, under Title VII, “‘[i]t 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.’” Jordan, 458 F.3d at 338 (quoting 42 U.S.C.
§ 2000e-3(a)). The majority continued that, “[r]eading 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.” Id. (citing Navy Fed., 424 F.3d at 406-
07).
The Jordan majority observed that the employment practices
that may be the subject of protected opposition activity include
discrimination under 42 U.S.C. § 2000e-2(a)(1) in the form of
“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 conditions of the victim’s employment and create an
abusive working environment.’” Jordan, 458 F.3d at 339 (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The
13
majority further recognized that “[c]ourts determine ‘whether an
environment is sufficiently hostile or abusive by looking at all
the circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’”
Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-
88 (1998)). As the majority explained, “‘simple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms
and conditions of employment.’” Id. (quoting Faragher, 524 U.S.
at 788). The majority also noted that “hostile work
environments generally result only after an accumulation of
discrete instances of harassment.” Id. (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile
environment 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.”)).
To assess the merits of Jordan’s Title VII retaliation
claim, the panel majority clarified, “the question reduces to
whether Jordan complained about an actual hostile work
environment or, if there was not one, whether Jordan could
reasonably have believed there was one.” Jordan, 458 F.3d at
339. The majority first concluded that no hostile work
14
environment actually existed, in that the “black monkeys”
comment — though “unacceptably crude and racist” — “was an
isolated response directed at the snipers” rather than “any
fellow employee.” Id. at 339-40. The majority underscored that
the comment “was a singular and isolated exclamation” that did
not and could not have “altered the terms and conditions of
[Jordan’s] employment,” and that Jordan did “not describe a
workplace permeated by racism, by threats of violence, by
improper interference with work, or by conduct resulting in
psychological harm.” Id. at 340.
Turning to the issue of Jordan’s reasonable belief, the
panel majority concluded that “no objectively reasonable person
could have believed that [Jordan’s workplace] was in the grips
of a hostile work environment.” Jordan, 458 F.3d at 341. But
the majority also acknowledged that, pursuant to Navy Federal,
Jordan could rely on a reasonable belief that a hostile work
environment “was taking shape.” See id. at 340-41 (“Navy
Federal holds that an employee seeking protection from
retaliation must have an objectively reasonable belief in light
of all the circumstances that a Title VII violation has happened
or is in progress.”); see also Navy Fed., 424 F.3d at 406-07
(concluding that plaintiff reasonably believed she was opposing
unlawful retaliation by disrupting plan that had been set in
motion by employer to terminate another employee for her
15
discrimination complaints). The majority elaborated that,
“[u]nder § 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 circumstances that the employee
observes and reasonably believes.” Jordan, 458 F.3d at 341
(emphasis omitted). From there, the majority determined that
Jordan could not establish a reasonable belief that a hostile
work environment was in progress, in that “no allegation in the
complaint suggests that a plan was in motion to create such an
environment, let alone that such an environment was even likely
to occur.” Id. at 340. Accordingly, the majority opinion
affirmed the dismissal of Jordan’s Title VII retaliation claim,
as well as his § 1981 retaliation claim.
The Jordan dissent agreed with the panel majority that, to
gain protection for his opposition activity, an employee may
rely on a reasonable belief that Title VII is in the process of
being violated by the conduct being opposed. See Jordan, 458
F.3d at 352 (King, J., dissenting) (citing Navy Fed., 424 F.3d
at 406-07). The dissent disputed the majority’s view, however,
that Navy Federal requires an employee opposing a potential
hostile work environment to prove “that a plan was in motion to
create such an environment.” That is, the dissent distinguished
16
the discrete action opposed by the Navy Federal plaintiff (the
imminent retaliatory discharge of another employee) from the
conduct opposed in Jordan (conduct that, if repeated, could
amount to a hostile work environment).
The Jordan dissent concluded that, “[b]y 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 independent
basis for believing the conduct might be repeated.” Jordan, 458
F.3d at 354. “Indeed,” the dissent emphasized, “we require
employees to report such incidents in order to prevent hostile
work environments from coming into being.” Id. (referring to
employer’s affirmative Ellerth/Faragher defense, see Faragher,
524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 764-65 (1998), imposing duty on employee to avoid harm by
reporting harassment to employer). The dissent further
highlighted precedent observing “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.’” Id. at 355 (alterations in original) (quoting
Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th
Cir. 2001)). And, the dissent stressed the Supreme Court’s
then-recent edict that “‘[i]nterpreting the antiretaliation
17
provision to provide broad protection from retaliation helps
assure the cooperation upon which accomplishment of [Title
VII’s] primary objective’ — preventing harm — ‘depends.’” Id.
at 352 (alteration in original) (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)).
At bottom, the Jordan dissent recognized that the “black
monkeys” comment made by Jordan’s co-worker “is the stuff of
which a racially hostile work environment is made,” and thus
that “it was entirely reasonable for Jordan to believe that, in
reporting the . . . comment to his employers, he was opposing a
racially hostile work environment.” Jordan, 458 F.3d at 355.
The dissent lamented that, because of the panel majority’s
opinion to the contrary, “employees in this Circuit who
experience racially harassing conduct are faced with a ‘Catch-
22.’” Id. As the dissent explained those employees’ quandary,
“[t]hey 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 resignation.” Id. But see Jordan, 458 F.3d at 342 (the
majority’s retort that “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”).
18
The opinion of the Jordan majority thereafter withstood a
petition for rehearing en banc, which was denied on a 5-5 vote
of the judges then in active service. See Jordan v. Alternative
Res. Corp., 467 F.3d 378 (4th Cir. 2006).
3.
Here, by its decision of April 5, 2013, the district court
relied on Jordan and awarded summary judgment to the defendants,
adopting their contentions that Clubb’s conduct was not so
severe or pervasive as to create a hostile work environment or
to instill a reasonable belief in Liberto, such as would protect
her from retaliation, that she had been unlawfully harassed.
See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212 (D.
Md. Apr. 5, 2013), ECF No. 52. 3 In rejecting Liberto’s hostile
3
The district court’s grounds for awarding summary judgment
— the lack of severe or pervasive conduct (element three of the
hostile work environment claims) and a protected activity
(element one of the retaliation claims) — were the sole grounds
that had been propounded by the defendants. See supra Part
I.B.1. Regardless, the court acknowledged the balance of the
elements of Liberto’s claims and accepted that they had been
satisfied. With respect to the hostile work environment claims,
that meant Liberto had shown unwelcome conduct (element one),
based on her race (element two), which, “[g]iven Clubb’s
position in Clarion’s management structure,” was imputable to
the employer (element four). See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 5 (D. Md. Apr. 5, 2013),
ECF No. 52. As for the retaliation claims, the court deemed it
“indisputable” that the defendants took an adverse employment
action against Liberto (element two) and that there was a causal
link between her racial harassment complaint and the adverse
employment action (element three). Id. at 7.
19
work environment claims, the district court determined that
“[t]he two incidents of use of a racial epithet, assuming they
occurred as Liberto testified, simply do not comprise either
pervasive or severe conduct, however unacceptable they are.”
Id. at 6. The court explained that it had “compare[d] the
evidence in this case to that in [three others]” and
“conclude[d] the conduct at issue here does not rise to the
level of conduct found to be severe or pervasive in those Fourth
Circuit cases.” Id. (citing Anderson v. G.D.C., Inc., 281 F.3d
452, 459 (4th Cir. 2002) (“Anderson was subjected, on a daily
basis, to verbal assaults of the most vulgar and humiliating
sort.”); Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d
179, 199 (4th Cir. 2000) (“Ms. Conner experienced regular,
profound humiliation because of her gender, unlike the male
machine operators.”); Amirmokri v. Balt. Gas & Elec. Co., 60
F.3d 1126, 1131 (4th Cir. 1995) (“[Amirmokri] testified that for
six months . . . co-workers abused him almost daily, calling him
names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir
of Waldorf.’”)). The district court then invoked Jordan for the
proposition that an “isolated racist comment” is “‘a far cry
from . . . an environment of crude and racist conditions so
severe or pervasive that they alter[] the conditions of
[plaintiff’s] employment.’” Id. (third alteration in original)
(quoting Jordan, 458 F.3d at 340). In concomitantly rejecting
20
Liberto’s retaliation claims, the court again looked to Jordan
and ruled that “‘no objectively reasonable person could have
believed that the [plaintiff’s work environment] was, or was
soon going to be, infected by severe or pervasive racist,
threatening, or humiliating harassment.’” Id. at 8 (alteration
in original) (quoting Jordan, 458 F.3d at 341).
Liberto timely noted her appeal, and the matter was
reviewed by a three-judge panel of this Court. See Boyer-
Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).
The panel decision was unanimous that the defendants were
properly awarded summary judgment on Liberto’s hostile work
environment claims, in that Clubb’s “use of [the term ‘porch
monkey’] twice in a period of two days in discussions about a
single incident, was not, as a matter of law, so severe or
pervasive as to change the terms and conditions of Liberto’s
employment.” Id. at 356. The panel observed that Liberto had
“not pointed to any Fourth Circuit case, nor could she, finding
the presence of a hostile work environment based on a single
incident.” Id. at 358 (comparing Jordan with Anderson, Conner,
and Amirmokri).
The panel was split, however, with respect to Liberto’s
retaliation claims. The opinion of the panel majority validated
the district court’s summary judgment award on those claims,
explaining that, “if no objectively reasonable juror could have
21
found the presence of a hostile work environment, as we today
hold, it stands to reason that Liberto also could not have had
an objectively reasonable belief that a hostile work environment
existed.” Boyer-Liberto, 752 F.3d at 360 (emphasis omitted).
Although the panel majority allowed that an “employee’s
opposition may be protected before the hostile environment has
fully taken form,” the majority faulted Liberto for failing to
“present any indicators that the situation at the Clarion would
have ripened into a hostile work environment.” Id. In that
regard, the majority equated Liberto’s case with Jordan. See
id. (“Just as in Jordan, we conclude here that ‘while in the
abstract, continued repetition of racial comments of the kind
[Clubb] made might have led to a hostile work environment, no
allegation in the [record] suggests that a plan was in motion to
create such an environment, let alone that such an environment
was even likely to occur.’” (alterations in original) (quoting
Jordan, 458 F.3d at 340)); see also id. at 361 (Shedd, J.,
concurring) (“Based on this Court’s decision in Jordan . . . , I
agree with Judge Niemeyer that summary judgment should . . . be
affirmed on the retaliation claim.”).
The dissent distinguished the facts in this case from those
in Jordan and concluded that, “[p]articularly in light of these
significant differences, . . . Liberto could have reasonably
believed that Clubb’s conduct was actionable.” Boyer-Liberto,
22
752 F.3d at 363 (Traxler, C.J., concurring in part and
dissenting in part) (pointing out that Jordan’s co-worker made a
single comment not directed at Jordan or another employee, while
Clubb called Liberto herself “the very same name in the very
same threatening context” on two consecutive days). In any
event, the dissent also questioned whether Jordan was correctly
decided. See id. (“I share in the sentiment Judge King
expressed so well in his dissent in Jordan that our very narrow
interpretation of what constitutes a reasonable belief in this
context has placed employees who experience racially
discriminatory conduct in a classic ‘Catch-22’ situation.”
(alteration and internal quotation marks omitted)).
Following issuance of the panel’s decision, Liberto sought
rehearing en banc, and a majority of our judges in regular
active service voted to grant Liberto’s petition. Accordingly,
the panel’s decision was vacated, and today our en banc Court
assesses anew the propriety of the district court’s summary
judgment award to the defendants. See 4th Cir. R. 35(c).
II.
We review de novo a district court’s award of summary
judgment, viewing the facts in the light most favorable to the
nonmoving party. See Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006) (en banc). Summary judgment is appropriate “if the
23
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
III.
A.
1.
We begin by addressing Liberto’s hostile work environment
claims — an endeavor that leads us to outline pertinent legal
principles, including some of those already identified above.
Title VII renders it “an unlawful employment practice for an
employer . . . to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
An employer contravenes § 2000e-2(a)(1) by, inter alia,
requiring an African-American employee to work in a racially
hostile environment. See Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65-67 (1986). A hostile environment exists “[w]hen the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks omitted).
24
Thus, to prevail on a Title VII claim that a workplace is
racially hostile, “a plaintiff must show that there is
(1) unwelcome conduct; (2) that is based on the plaintiff’s
. . . race; (3) which is sufficiently severe or pervasive to
alter the plaintiff’s conditions of employment and to create an
abusive work environment; and (4) which is imputable to the
employer.” Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir.
2011) (alteration and internal quotation marks omitted). The
same test applies to a hostile work environment claim asserted
under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto Glass, 242
F.3d 179, 184 (4th Cir. 2001); see also 42 U.S.C. § 1981(a)
(providing that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and
Territory to make and enforce contracts . . . as is enjoyed by
white citizens”); Jones v. R. R. Donnelley & Sons Co., 541 U.S.
369, 373 (2004) (recognizing that hostile work environment
claims may be brought under § 1981).
Element three of a hostile work environment claim requires
a showing that “the environment would reasonably be perceived,
and is perceived, as hostile or abusive”; the plaintiff may, but
is not required to, establish that the environment is
“psychologically injurious.” See Harris, 510 U.S. at 22.
Whether the environment is objectively hostile or abusive is
“judged from the perspective of a reasonable person in the
25
plaintiff’s position.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998). That determination is made “by
looking at all the circumstances,” which “may include the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris, 510 U.S. at 23. It “is
not, and by its nature cannot be, a mathematically precise
test.” Id. at 22.
To be sure, viable hostile work environment claims often
involve repeated conduct. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-17 (2002). That is because, “in
direct contrast to discrete acts, a single act of harassment may
not be actionable on its own.” Id. at 115. For example, “‘mere
utterance of an . . . epithet which engenders offensive feelings
in an employee’ does not sufficiently affect the conditions of
employment to implicate Title VII.” Harris, 510 U.S. at 21
(alteration in original) (quoting Meritor, 477 U.S. at 67). The
same goes for “simple teasing [and] offhand comments.” See
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Importantly, however, an “isolated incident[]” of harassment can
“amount to discriminatory changes in the terms and conditions of
employment,” if that incident is “extremely serious.” Id.
(internal quotation marks omitted).
26
In measuring the severity of harassing conduct, the status
of the harasser may be a significant factor — e.g., “a
supervisor’s use of [a racial epithet] impacts the work
environment far more severely than use by co-equals.” Rodgers
v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).
Simply put, “a supervisor’s power and authority invests his or
her harassing conduct with a particular threatening character.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).
The status of the harasser also is relevant to element four
of a hostile work environment claim, which necessitates proof
that the harassment is imputable to the employer. On the one
hand, “[i]f the harassing employee is the victim’s co-worker,
the employer is liable only if it was negligent in controlling
working conditions.” Vance v. Ball State Univ., 133 S. Ct.
2434, 2439 (2013); see also Ocheltree v. Scollon Prods., Inc.,
335 F.3d 325, 333-34 (4th Cir. 2003) (en banc) (“[T]he employer
may be liable in negligence if it knew or should have known
about the harassment and failed to take effective action to stop
it.”). On the other hand, where the harasser is the victim’s
supervisor, “different rules apply”: The employer is strictly
liable for the supervisor’s harassing behavior if it “culminates
in a tangible employment action,” but otherwise “may escape
liability by establishing, as an affirmative defense, that
(1) the employer exercised reasonable care to prevent and
27
correct any harassing behavior and (2) that the plaintiff
unreasonably failed to take advantage of the preventive or
corrective opportunities that the employer provided.” Vance,
133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,
524 U.S. at 765). The Ellerth/Faragher defense, in essence,
imposes a duty on the victim to report her supervisor’s
harassing behavior to the employer. See Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001)
(discussing “employee’s reporting requirement” under Faragher
and Ellerth). Relatedly, a plaintiff seeking to impute
liability to her employer for harassment by a co-worker may not
be able to establish the employer’s negligence if she did not
report the harassment. See Vance, 133 S. Ct. at 2453
(recognizing that evidence relevant to negligence inquiry would
include evidence that employer “failed to respond to
complaints”); id. at 2464 (Ginsburg, J., dissenting) (“An
employee may have a reputation as a harasser among those in his
vicinity, but if no complaint makes its way up to management,
the employer will escape liability under a negligence
standard.”).
For purposes of the employer’s vicarious liability, the
harasser qualifies as a supervisor, rather than a co-worker, “if
he or she is empowered by the employer to take tangible
employment actions against the victim.” Vance, 133 S. Ct. at
28
2439 (majority opinion). An employee so empowered is able to
“effect a ‘significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
a significant change in benefits.’” Id. at 2443 (quoting
Ellerth, 524 U.S. at 761). As such, a supervisor has the
“authority to inflict direct economic injury.” Id. at 2448.
To be considered a supervisor, the employee need not have
the final say as to the tangible employment action; instead, the
employee’s decision may be “subject to approval by higher
management.” Vance, 133 S. Ct. at 2446 n.8 (citing Ellerth, 524
U.S. at 762). The Vance Court determined that one of the
harassers in Faragher “possessed the power to make employment
decisions having direct economic consequences for his victims”
based on the following: “No one [had been] hired without his
recommendation”; he “initiated firing and suspending personnel”;
his performance evaluations “translated into salary increases”;
and he “made recommendations regarding promotions.” Id.
(internal quotation marks omitted). Additionally, the Court
observed that, “even if an employer concentrates all decision-
making authority in a few individuals, it likely will not
isolate itself from heightened liability under Faragher and
Ellerth,” in that those individuals likely will have to rely on
the recommendations of others, and “the employer may be held to
29
have effectively delegated the power to take tangible employment
actions to the employees on whose recommendations it relies.”
Id. at 2452 (citing Ellerth, 524 U.S. at 762).
2.
In seeking summary judgment on Liberto’s hostile work
environment claims, the defendants’ sole contention was that
there had been no showing that Clubb’s conduct was severe or
pervasive enough to alter Liberto’s conditions of employment and
produce an abusive work environment. Liberto’s counter-
arguments included that there was a genuine dispute as to
whether the harassment she suffered on September 14 and 15,
2010, was sufficiently severe. To resolve that issue today, we
need not — and, in any event, on this record cannot — determine
whether Clubb was actually Liberto’s supervisor or simply her
co-worker, a fact relevant to the separate question of the
Clarion’s vicarious liability. Nevertheless, we are obliged to
consider how Clubb portrayed her authority and what Liberto thus
reasonably believed Clubb’s power to be. See Oncale, 523 U.S.
at 81 (“[T]he objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s
position . . . .”).
The defendants have suggested that, because Liberto
understood Clubb to be a “glorified hostess” and not a
restaurant manager, see J.A. 213-14, Liberto could not have
30
reasonably perceived that Clubb’s conduct was severe enough to
create a hostile work environment. That premise ignores
evidence, however, that Clubb repeatedly and effectively
communicated to Liberto prior to September 14, 2010, that Clubb
had Dr. Berger’s ear and could have Liberto fired. See, e.g.,
id. at 274 (Liberto’s deposition testimony that Clubb “did have
power that I did not have”); id. at 279 (“I felt extremely
singled out and that my position was being threatened and it was
very clear.”); id. (“I was told what my place was. . . . And
[Clubb] always made it clear that Dr. Berger would listen to
anything she said and wouldn’t believe me.”).
The defendants’ theory also fails to take into account
Clubb’s assertion of power in the course of her harassment of
Liberto. On September 14, 2010, Clubb berated Liberto’s job
performance before threatening “to get [her]” and “make [her]
sorry,” and then calling her a “damn porch monkey” or a “dang
porch monkey.” See J.A. 252-53, 258. The following day, Clubb
obstructed Liberto’s attempted report of racial harassment to
Food and Beverage Director Heubeck by telling Liberto, “I need
to speak to you, little girl,” and “I’m more important [than
Heubeck].” Id. at 263-64. Immediately thereafter, Clubb again
reprimanded Liberto, again threatened to “get [her]” and to “go
to Dr. Berger,” and again called her a “porch monkey.” Id. at
266. Finally, while speaking with Liberto on September 18 about
31
her racial harassment complaint, General Manager Elman validated
Clubb’s assertion of authority by declaring Clubb to be
Liberto’s “boss.” Id. at 324.
Properly considering that evidence, we must accept that
Liberto believed — and reasonably so — that Clubb could make a
discharge decision or recommendation that would be rubber-
stamped by Dr. Berger. Thus, in gauging the severity of Clubb’s
conduct, we deem Clubb to have been Liberto’s supervisor. Cf.
Vance, 133 S. Ct. at 2446 n.8, 2452 (recognizing that, for
purposes of employer’s vicarious liability, employee may qualify
as supervisor if she can initiate tangible employment actions
“subject to approval by higher management” or make
recommendations on which employer relies). And we view Clubb’s
conduct as having the “particular threatening character” of
harassment perpetrated by a supervisor against her subordinate.
See Ellerth, 524 U.S. at 763. That perspective is especially
appropriate here, where Clubb employed racial epithets to cap
explicit, angry threats that she was on the verge of utilizing
her supervisory powers to terminate Liberto’s employment.
We also grasp that the use of Clubb’s chosen slur — “porch
monkey” — is about as odious as the use of the word “nigger.”
See Spriggs, 242 F.3d at 185. The latter epithet, of course,
“is pure anathema to African-Americans.” Id. Similarly,
describing an African-American as a “monkey,” and thereby
32
“suggest[ing] that a human being’s physical appearance is
essentially a caricature of a jungle beast[,] goes far beyond
the merely unflattering; it is degrading and humiliating in the
extreme.” Id.; see also, e.g., Green v. Franklin Nat’l Bank of
Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (recognizing that
“[p]rimate rhetoric has been used to intimidate African-
Americans” and that “[t]he use of the term ‘monkey’ and other
similar words,” including the variation “porch monkey,” has
“been part of actionable racial harassment claims across the
country” (citing cases)). As we and several of our sister
courts of appeals have recognized, “‘[p]erhaps no single act can
more quickly alter the conditions of employment and create an
abusive working environment than the use of an unambiguously
racial epithet such as “nigger” by a supervisor in the presence
of his subordinates.’” Spriggs, 242 F.3d at 185 (quoting
Rodgers, 12 F.3d at 675); accord Ellis v. Houston, 742 F.3d 307,
325-26 (8th Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
577 (D.C. Cir. 2013); Rivera v. Rochester Genesee Reg’l Transp.
Auth., 743 F.3d 11, 24 (2d Cir. 2012); McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1116 (9th Cir. 2004).
Consequently, a reasonable jury could find that Clubb’s two
uses of the “porch monkey” epithet — whether viewed as a single
incident or as a pair of discrete instances of harassment — were
severe enough to engender a hostile work environment. Cf. Adams
33
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1253-54 (11th Cir.
2014) (concluding that, although a Caucasian supervisor’s
carving of “porch monkeys” into the aluminum of a ship where he
was working with the African-American plaintiff “was an isolated
act, it was severe”); Ayissi-Etoh, 712 F.3d at 577
(acknowledging that, where a supervisor “used a deeply offensive
racial epithet [‘nigger’] when yelling at Ayissi-Etoh to get out
of the office,” that “single incident might well have been
sufficient to establish a hostile work environment”); id. at 580
(Kavanaugh, J., concurring) (“[I]n my view, being called the n-
word by a supervisor — as Ayissi-Etoh alleges happened to him —
suffices by itself to establish a racially hostile work
environment.”).
In thus vacating the summary judgment award on Liberto’s
hostile work environment claims, we identify this as the type of
case contemplated in Faragher where the harassment, though
perhaps “isolated,” can properly be deemed to be “extremely
serious.” See Faragher, 524 U.S. at 788. We also acknowledge
that this is a first for our Court. We reject, however, any
notion that our prior decisions, including Jordan v. Alternative
Resources Corp., were meant to require more than a single
incident of harassment in every viable hostile work environment
case. Specifically, we observe that the district court
improperly analogized this matter (involving a racial epithet
34
directed at Liberto by her supervisor) to Jordan (concerning a
racist remark that was made by a mere co-worker and not aimed at
Jordan or any other employee). See 458 F.3d 332, 339-40 (4th
Cir. 2006). We further note that, in the cases unfavorably
compared to this one by the district court, the harassment was
so severe and pervasive that there were no close calls. See
Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002)
(“The evidence was unquestionably sufficient to submit
Anderson’s hostile environment claim to the jury.”); Conner v.
Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 199 (4th Cir.
2000) (“[T]here is ample support for the jury finding of severe
or pervasive conduct sufficient to constitute a hostile work
environment.”); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d
1126, 1131 (4th Cir. 1995) (“A reasonable person could easily
find this atmosphere to be hostile.”). Liberto’s case may be
different from Anderson, Conner, and Amirmokri, but it is no
less worthy of a jury trial. 4
4
We do not suggest that a jury should be limited to
assessing whether Clubb’s two uses of the “porch monkey” slur,
without more, created a hostile work environment. A jury also
would be entitled to consider other evidence potentially
indicative of severe or pervasive harassment, including Clubb’s
treatment of Liberto throughout her short tenure at the Clarion;
Clubb’s shouting, spitting, and stalking on the night of
September 14, 2010; and Clubb’s use of the term “little girl” to
refer to Liberto on September 15. See, e.g., Conner, 227 F.3d
at 197 (“The more serious incidents enumerated here were
complemented by numerous additional occurrences that, in
(Continued)
35
Barb.
1.
Turning to Liberto’s retaliation claims, Title VII
proscribes discrimination against an employee because, in
relevant part, she “has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-
3(a). Employees engage in protected oppositional activity when,
inter alia, they “complain to their superiors about suspected
violations of Title VII.” Bryant v. Aiken Reg’l Med. Ctrs.
Inc., 333 F.3d 536, 543-44 (4th Cir. 2003). To establish a
prima facie case of retaliation in contravention of Title VII, a
plaintiff must prove “(1) that she engaged in a protected
activity,” as well as “(2) that her employer took an adverse
employment action against her,” and “(3) that there was a causal
link between the two events.” EEOC v. Navy Fed. Credit Union,
424 F.3d 397, 405-06 (4th Cir. 2005). A prima facie retaliation
claim under 42 U.S.C. § 1981 has the same elements. See Honor
v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir.
2004); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446
isolation, may have seemed less problematic, but which actually
served to exacerbate the severity of the situation.”).
36
(2008) (confirming that Ҥ 1981 encompasses retaliation
claims”). 5
In the context of element one of a retaliation claim, an
employee is protected when she opposes “not only . . .
employment actions actually unlawful under Title VII but also
employment actions [she] reasonably believes to be unlawful.”
Navy Fed., 424 F.3d at 406. The Title VII violation may be
complete, or it may be in progress. See id. at 406-07; see also
Jordan, 458 F.3d at 340-41 (“Navy Federal holds that an employee
seeking protection from retaliation must have an objectively
reasonable belief in light of all the circumstances that a Title
VII violation has happened or is in progress.”); Peters v.
Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (concluding, in
reliance on decisions under Title VII, that “to show protected
activity, 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” (alterations
and internal quotation marks omitted)). In other words, an
5
We observe that, although the elements of prima facie
Title VII and § 1981 retaliation claims are identical, the
causation standard for a Title VII claim may differ from that
for a § 1981 claim after the Supreme Court’s decision in
University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (2013) (holding that but-for standard of causation
applies to Title VII retaliation claims). We need not consider
that question today, however, because the defendants have raised
no issue with respect to causation.
37
employee is protected from retaliation when she opposes a
hostile work environment that, although not fully formed, is in
progress.
a.
The panel majority in Jordan ruled that, where an employee
has complained to his employer of an isolated incident of
harassment insufficient to create a hostile work environment,
the employee cannot have possessed a reasonable belief that a
Title VII violation was in progress, absent evidence “that a
plan was in motion to create such an environment” or “that such
an environment was [otherwise] likely to occur.” See 458 F.3d
at 340. We reject that aspect of Jordan today, however, for
several reasons.
First of all, the Jordan standard “imagines a fanciful
world where bigots announce their intentions to repeatedly
belittle racial minorities at the outset, and it ignores the
possibility that a hostile work environment could evolve without
some specific intention to alter the working conditions of
African-Americans through racial harassment.” See Jordan, 458
F.3d at 353-54 (King, J., dissenting). Tellingly, intent to
create a hostile work environment is not an element of a hostile
environment claim.
The Jordan standard also is at odds with the hope and
expectation that employees will report harassment early, before
38
it rises to the level of a hostile environment. Where the
harasser is her supervisor and no tangible employment action has
been taken, the victim is compelled by the Ellerth/Faragher
defense to make an internal complaint, i.e., “to take advantage
of any preventive or corrective opportunities provided by the
employer.” See Faragher, 524 U.S. at 807. Similarly, the
victim of a co-worker’s harassment is prudent to alert her
employer in order to ensure that, if the harassment continues,
she can establish the negligence necessary to impute liability.
See Vance, 133 S. Ct. at 2453. The reporting obligation is
essential to accomplishing Title VII’s “primary objective,”
which is “not to provide redress but to avoid harm.” See
Faragher, 524 U.S. at 806. Thus, we have recognized that the
victim is commanded to “report the misconduct, not investigate,
gather evidence, and then approach company officials.” See
Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th
Cir. 2001). Further, we have emphasized that an employee’s
“generalized fear of retaliation does not excuse a failure to
report . . . harassment,” particularly where “Title VII
expressly prohibits any retaliation against [the reporting
employee].” See Barrett, 240 F.3d at 267.
But rather than encourage the early reporting vital to
achieving Title VII’s goal of avoiding harm, the Jordan standard
deters harassment victims from speaking up by depriving them of
39
their statutory entitlement to protection from retaliation.
Such a lack of protection is no inconsequential matter, for
“fear of retaliation is the leading reason why people stay
silent instead of voicing their concerns about bias and
discrimination.” See Crawford v. Metro. Gov’t of Nashville &
Davidson Cnty., Tenn., 555 U.S. 271, 279 (2009) (internal
quotation marks omitted). Quelling that fear, the Crawford
Court extended protection “to an employee who speaks out about
discrimination not on her own initiative, but in answering
questions during an employer’s internal investigation.” See id.
at 273. To do otherwise, the Court explained, would “create a
real dilemma for any knowledgeable employee.” Id. at 279.
Namely, “[i]f the employee reported discrimination in response
to the enquiries, the employer might well be free to penalize
her for speaking up. But if she kept quiet about the
discrimination and later filed a Title VII claim, the employer
might well escape liability [by invoking the Ellerth/Faragher
defense].” Id. The Court concluded that “[n]othing in the
statute’s text or our precedent supports this catch-22.” Id.
Of course, the same can be, and has been, said about the Jordan
standard. See Jordan, 458 F.3d at 355 (King, J., dissenting)
(“As a result of today’s decision, employees in this Circuit who
experience racially harassing conduct are faced with a ‘Catch-
22.’”).
40
Put succinctly, the Jordan standard is incompatible with
Crawford, as well as other Supreme Court decisions directing
that Title VII’s antiretaliation provision be interpreted “to
provide broad protection from retaliation.” See Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also,
e.g., Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75
(2011). As the Burlington Northern Court explained, Title VII
must be read “to provide broader protection for victims of
retaliation than for [even] victims of race-based, ethnic-based,
religion-based, or gender-based discrimination,” because
“effective enforcement could . . . only be expected if employees
felt free to approach officials with their grievances.” See 548
U.S. at 66-67 (internal quotation marks omitted)).
Finally, we need look no further than Jordan itself to
comprehend that the Jordan standard is unsuited to its purpose.
In Jordan’s presence, his co-worker made a comment that, “in a
single breath, . . . equated African-Americans with ‘black
monkeys’ and ‘black apes,’ and implied a savage, bestial sexual
predilection acutely insulting to members of the African-
American community.” See Jordan, 458 F.3d at 351 (King, J.,
dissenting). Jordan then did exactly what Title VII hopes and
expects: He reported the comment to his employers in an effort
to avert any further racial harassment. Because of his internal
complaint, however, Jordan was fired. In light of the text and
41
purpose of Title VII, as well as controlling Supreme Court and
Fourth Circuit decisions, Jordan surely merited protection from
retaliation. That is,
[w]ithout question, [the comment made by Jordan’s co-
worker] is the stuff of which a racially hostile work
environment is made. On the allegations here, it was
entirely reasonable for Jordan to believe that, in
reporting the racially charged ‘black monkeys’ comment
to his employers, he was opposing a racially hostile
work environment.
Id. at 355 (citations omitted). But, by devising and applying
the Jordan standard, we denied Jordan any legal recourse for his
retaliatory discharge. In these circumstances, the Jordan
standard plainly cannot endure.
b.
The question, then, becomes this: What is the proper
standard for determining whether an employee who reports an
isolated incident of harassment has a reasonable belief that she
is opposing a hostile work environment in progress? We conclude
that, when assessing the reasonableness of an employee’s belief
that a hostile environment is occurring based on an isolated
incident, the focus should be on the severity of the harassment.
Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71
(2001) (looking to severity of single incident in evaluating
reasonableness of employee’s belief that incident created
actionable hostile environment). That assessment thus involves
factors used to judge whether a workplace is sufficiently
42
hostile or abusive for purposes of a hostile environment claim —
specifically, whether the discriminatory conduct “is physically
threatening or humiliating, or a mere offensive utterance.” See
Harris, 510 U.S. at 23. Of course, a single offensive utterance
— e.g., “simple teasing” or an “offhand comment[],” see
Faragher, 524 U.S. at 788 — generally will not create a hostile
environment without significant repetition or an escalation in
the harassment’s severity. See Ayissi-Etoh, 712 F.3d at 579
(Kavanaugh, J., concurring) (“The more severe the harassment,
the less pervasive it needs to be, and vice versa.” (internal
quotation marks omitted)). But an isolated incident that is
physically threatening or humiliating will be closer — even if
not equal — to the type of conduct actionable on its own because
it is “extremely serious.” See Faragher, 524 U.S. at 788.
Accordingly, as relevant here, an employee will have a
reasonable belief that a hostile work environment is occurring
based on an isolated incident if that harassment is physically
threatening or humiliating. This standard is consistent not
only with Clark County, but also with other Supreme Court
precedent, including Crawford and Burlington Northern. That is
so because it protects an employee like Jordan who promptly
speaks up “to attack the racist cancer in his workplace,” rather
than “remain[ing] silent” and “thereby allowing [discriminatory]
conduct to continue unchallenged,” while “forfeiting any
43
judicial remedy he might have.” See Jordan, 458 F.3d at 356
(King, J., dissenting).
In sum, under the standard that we adopt today with
guidance from the Supreme Court, an employee is protected from
retaliation for opposing an isolated incident of harassment when
she reasonably believes that a hostile work environment is in
progress, with no requirement for additional evidence that a
plan is in motion to create such an environment or that such an
environment is likely to occur. The employee will have a
reasonable belief that a hostile environment is occurring if the
isolated incident is physically threatening or humiliating. 6
6
Notably, in its brief as amicus curiae supporting Liberto,
the EEOC urges us to adopt a standard suggested by the Jordan
dissent: that an employee engages in a protected opposition
activity when she complains about an isolated incident of
harassment that would create a hostile work environment if
repeated often enough. See Jordan, 458 F.3d at 354 (King, J.,
dissenting) (“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.”). When the isolated incident is merely offensive
— rather than physically threatening or humiliating — the if-
repeated standard might well be appropriate. Contrary to the
argument of the defendants, it is not necessarily precluded by
the Supreme Court’s Clark County decision. That is, although
the Court concluded that the Clark County plaintiff had not
engaged in a protected opposition activity by reporting an
isolated incident that was merely offensive, the Court did so by
assessing whether the plaintiff could have reasonably believed
that incident alone created a hostile environment. See 121 S.
Ct. at 270-71. The Court did not consider whether the plaintiff
could have reasonably believed that a hostile work environment,
even though not fully formed, was in progress. In any event, we
(Continued)
44
2.
Because the defendants contested Liberto’s retaliation
claims on the lone ground that she did not engage in a protected
activity, our analysis is limited to whether a jury could find
that Liberto reasonably believed there was a hostile work
environment in progress when she reported Clubb’s use of the
“porch monkey” slur. Applying the standard that we adopt today,
the answer plainly is “yes.” As we recognized in analyzing
Liberto’s hostile work environment claims, “porch monkey” is a
racial epithet that is not just humiliating, but “degrading and
humiliating in the extreme.” See Spriggs, 242 F.3d at 185.
Indeed, we determined that a reasonable jury could find that
Clubb’s two uses of “porch monkey” were serious enough to
engender a hostile environment. We must further conclude,
therefore, in the context of the retaliation claims, that
Liberto has made the lesser showing that the harassment was
sufficiently severe to render reasonable her belief that a
hostile environment was occurring. Accordingly, we vacate the
summary judgment award on Liberto’s retaliation claims, in
addition to her hostile work environment claims. We also
need not decide herein whether to embrace the if-repeated
standard for cases involving isolated, merely offensive
incidents of harassment, because this matter involves more
serious conduct.
45
underscore that, on remand, a jury would be entitled to
simultaneously reject the hostile work environment claims on the
ground that Clubb’s conduct was not sufficiently serious to
amount to a hostile environment, but award relief on the
retaliation claims by finding that Clubb’s conduct was severe
enough to give Liberto a reasonable belief that a hostile
environment, although not fully formed, was in progress.
C.
Our good dissenting colleague has a different view of the
controlling law, the relevant facts, and even what our en banc
majority does and does not say. See post at 68-106 (Niemeyer,
J., dissenting). With respect to the hostile work environment
claims, there is disagreement over what the Supreme Court meant
by this sentence from Faragher:
A recurring point in [our hostile environment]
opinions is that simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and
conditions of employment.
See 524 U.S. at 788 (internal quotation marks omitted). We read
that sentence to pronounce that an isolated incident of
harassment, if extremely serious, can create a hostile
environment. But, clinging to Faragher’s use of “isolated
incidents” in the plural, the dissent posits that only multiple,
“extremely serious isolated incidents . . . may produce a
hostile work environment.” Post at 88.
46
Clearly, it is the dissent’s interpretation of Faragher —
not ours — that is untenable. To illustrate, the dissent
elsewhere observes that a hostile environment claim “must be
‘based on the cumulative effect of individual acts,’” post at 71
(quoting Morgan, 536 U.S. at 115), and that, “to be actionable
under Title VII, conduct must be so ‘severe or pervasive’ as ‘to
alter the conditions of [the victim’s] employment and create an
abusive working environment,’” id. at 70 (alteration in
original) (emphasis added) (quoting Meritor, 477 U.S. at 67).
Strikingly, the dissent does not — and surely cannot — explain
what differentiates “isolated incidents” that must be “extremely
serious,” from “individual acts” that may be “severe or
pervasive.” The dissent also quotes from Morgan that “‘a single
act of harassment may not be actionable on its own,’” id. at 71
(quoting Morgan, 536 U.S. at 115), without acknowledging the
obvious import of Morgan’s use of “may not” rather than
“cannot.” And, the dissent itself allows that a single,
isolated incident of physical violence may be actionable, id. at
88, without even attempting to reconcile that proposition with
its reading of Faragher.
Relatedly, the dissent criticizes us for “fail[ing] to note
that the portions of Faragher to which [we] cite[] were part of
the Supreme Court’s much lengthier discussion — and
substantively different message — describing the type of conduct
47
that would not violate Title VII.” Post at 69. In pursuing its
position, the dissent simply ignores Faragher’s use of “unless
extremely serious” to designate an exception to those isolated
incidents that are not unlawful on their own.
Meanwhile, the dissent repeatedly invokes Faragher’s
observation, “Mere utterance of an ethnic or racial epithet
which engenders offensive feelings in an employee would not
sufficiently alter terms and conditions of employment to violate
Title VII.” See Faragher, 524 U.S. at 787 (internal quotation
marks omitted). But the dissent overemphasizes the first part
of that sentence, at one point quoting the entire sentence while
underscoring only “[m]ere utterance of an ethnic or racial
epithet,” see post at 69, and at another point actually omitting
the phrase “which engenders offensive feelings in an employee,”
see id. at 88. Of course, the phrase “which engenders offensive
feelings in an employee” is a critical qualifier, signifying “a
mere offensive utterance” rather than a more egregious slur that
is “physically threatening or humiliating.” See Faragher, 524
U.S. at 787-88 (explaining that the circumstances relevant to
determining “whether an environment is sufficiently hostile or
abusive” include “‘whether it is physically threatening or
humiliating, or a mere offensive utterance’” (quoting Harris,
510 U.S. at 23)).
48
In any event, the dissent consistently minimizes the
seriousness of Clubb’s two uses of the “porch monkey” slur by
deeming them to be merely offensive as a matter of law. To do
so, the dissent invents a test under which harassment cannot
rise to the level of humiliating unless it is “publicly
humiliating,” and points out that “it appears that no one heard
Clubb direct the epithet at Liberto on either occasion.” See
post at 88-89. The dissent also flouts our mandate to view the
facts in the light most favorable to Liberto, and insists that,
as a fact, “Liberto thought that she was being upbraided by a
co-worker, not her supervisor.” Id. at 89. Regardless of what
else Liberto perceived about Clubb’s status, however, there is
ample evidence in the record showing that Liberto reasonably
believed that Clubb possessed the one supervisory power that
mattered: the power to follow through on her threats to have
Dr. Berger rubber-stamp Liberto’s discharge. 7
7
Notably, although the defendants themselves failed to
argue in the district court that Clubb was not actually
Liberto’s supervisor, the dissent wanders into that issue and
declares it “highly doubtful that Clubb . . . would qualify as
Liberto’s supervisor.” See post at 84-85 (describing Clubb as
“an employee whose only influence comes from having the ear of
the company’s owner because of their personal friendship”). The
dissent’s characterization of Clubb is contradicted by portions
of the record, including the September 18, 2010 email in which
Elman, the Clarion’s General Manager, recounted responding to
Liberto’s racial harassment complaint by advising her that she
and Clubb “need[ed] to learn to work together on a professional
level and that [Clubb] was [Liberto’s] boss.” J.A. 324. Rather
(Continued)
49
As for the retaliation claims, the dissent accuses our en
banc majority of “gratuitously proceed[ing] to adopt an
unprecedented standard . . . that is much broader than necessary
to resolve Liberto’s claim[s].” Post at 93. The dissent’s
accusation rests on the false premise that we hold as a matter
of law that a hostile work environment existed. In reality, we
simply conclude that a reasonable jury could find for Liberto
with respect to her hostile environment claims. Because it is
possible that Liberto will instead come up short at trial on
those claims, our retaliation analysis is essential. Indeed, we
have emphasized that a jury may find that Clubb’s conduct was
insufficiently serious to engender a hostile environment, but
severe enough to protect Liberto from retaliation by rendering
reasonable her belief that such an environment was underway.
than grappling with that important evidence from the Clarion’s
own General Manager, the dissent chastises us for considering
what it glibly terms “Elman’s apparent understanding of Clubb’s
relationship to Liberto.” See post at 86 n.*.
Meanwhile, two other of our good colleagues deem Clubb to
have been Liberto’s mere co-worker and thereby conclude that the
Clarion cannot be held vicariously liable for Clubb’s harassment
of Liberto. See post at 56-58 (Wilkinson, J., concurring in
part and dissenting in part, joined by Agee, J.). Those
colleagues not only disregard evidence that Clubb was Liberto’s
supervisor, but also urge affirmance of the summary judgment
award with respect to the hostile environment claims on a ground
that the defendants failed to raise or preserve in the district
court.
50
Unfortunately, there are further instances of the dissent’s
inaccurate portrayal of today’s decision. For example, although
we observe herein that our standard “protects an employee like
Jordan” from retaliation, the dissent asserts that we nowhere
“indicate that the plaintiff in Jordan had a reasonable belief
that a hostile work environment was taking shape at the time he
reported his co-worker’s racist comment to his supervisors.”
See post at 99. So, for the sake of clarity (though too late to
benefit Jordan himself), we state in plain terms that a jury
applying our standard could have found that Jordan reasonably
believed he was opposing a hostile environment in progress.
That is because the “black monkeys” comment uttered to Jordan —
like the “porch monkey” slurs aimed at Liberto — could readily
be deemed physically threatening or humiliating.
We are entirely unswayed by the dissent’s warning that our
standard “will generate widespread litigation over the many
offensive workplace comments made everyday that employees find
to be humiliating.” See post at 93-94. Our standard is
implicated solely when an employee suffers retaliation for
engaging in an oppositional activity, and can be satisfied only
by showing the objective reasonableness of the employee’s belief
that an isolated incident of harassment was physically
threatening or humiliating. We also reject the dissent’s
prediction that our “standard will surely generate many new
51
questions” and “much hand-wringing” over which harassing conduct
qualifies as sufficiently severe. See id. at 96, 105. Judges
and juries have been identifying what is humiliating, as well as
what is physically threatening or merely offensive, since at
least 1993, when the Supreme Court explained in Harris how to
determine whether a workplace is objectively hostile or abusive
for purposes of a hostile environment claim. See 510 U.S. at
23. 8
Finally, we are perplexed and dismayed by the dissent’s
assertions that, on the one hand, “Liberto had every right to be
offended by Clubb’s use of a racial epithet and acted reasonably
and responsibly in reporting the incident,” see post at 98, and
that, on the other hand, Liberto spoke up too soon and thereby
deprived herself of protection from retaliation. As the dissent
would have it, although reporting Clubb’s slur was a sensible
thing to do, Liberto should have waited for additional
harassment to occur — but not so much harassment that the
8
Two of our colleagues issue dire warnings that today’s
decision may cause “employers [to] become speech police,”
“employees [to be] estranged from one another,” and “companies
[to] become private sector analogues of the surveillance state.”
See post at 55 (Wilkinson, J., concurring in part and dissenting
in part, joined by Agee, J.). We cannot agree, however, that by
simply protecting an employee who, for example, reports a race-
based comment that she reasonably believes to be physically
threatening or humiliating, we might somehow silence or
segregate the workforce.
52
Clarion could avoid vicarious liability because of a lack of
timely notice. Concomitantly, the dissent contends that our
decision “manifests a fundamental distrust of employers,
assuming that, once a humiliating epithet is uttered, the
development of a hostile work environment is a fait accompli —
in other words, that employers are powerless or unwilling to
prevent a descent into pervasive hostility.” Id. at 105.
Contrary to the dissent, we seek to promote the hope and
expectation — ingrained in our civil rights laws and the Supreme
Court decisions interpreting them — that employees will report
harassment early, so that their employers can stop it before it
rises to the level of a hostile environment. Employers are
powerless in that regard only if they are unaware that
harassment is occurring. But employees will understandably be
wary of reporting abuse for fear of retribution. Under today’s
decision, employees who reasonably perceive an incident to be
physically threatening or humiliating do not have to wait for
further harassment before they can seek help from their
employers without exposing themselves to retaliation.
53
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for such other and further proceedings
as may be appropriate.
VACATED AND REMANDED
54
WILKINSON, Circuit Judge, with whom AGEE, Circuit Judge, joins,
concurring in part and dissenting in part:
The remarks alleged in this Title VII action are ones that
Americans of every race and all walks of life would find so
wounding that the word offensive does not begin to describe
them. It is incidents such as these, small as they may appear,
that prevent our larger society from becoming the place of
welcome it needs to be.
The good done by the civil rights laws has been enormous
and one aim of those laws, as I understand it, is to make the
workplace an environment where Americans of every race,
religion, sex, or national origin would actually want to work.
42 U.S.C. § 2000e-2 and 2000e-3.
To say that a good workplace environment is poisoned by the
kind of remarks alleged here is an understatement. Who would
wish to get up and come to work each morning fearful of
encountering this sort of slur during the course of the working
day?
There is a countervailing danger at play in these cases,
however, namely that we not imbue the workplace with such
stringent hostile work environment requirements that employers
become speech police, that employees are estranged from one
another, and that companies become private sector analogues of
the surveillance state.
55
Where and how to strike the balance? In this case I would
decline to hold the employer vicariously liable on the merits of
the hostile work environment claim, but I would allow Boyer-
Liberto’s retaliation claim to proceed. In fact, were the truth
of her complaint ascertained by the employer, the “retaliation”
should have taken the form of Clubb’s dismissal and not Boyer-
Liberto’s.
I.
As to the merits of the hostile work environment claim, I
would affirm the judgment of the district court on the grounds
that any other result would stretch the notion of vicarious
employer liability past the breaking point. There may be an
understandable temptation to land hard on this employer, but
there are dangers down the road. Holding employers liable for
remarks made by one of their employees where the majority points
to no prior notice to the employer and no prior employer
awareness of Clubb’s racist tendencies is all too open-ended. To
be sure, an employer is “directly liable” for a co-worker’s
unlawful harassment if “the employer was negligent with respect
to the offensive behavior.” Vance v. Ball State Univ., 133 S.
Ct. 2434, 2441 (2013). But while the majority tries to make it
appear as though some other evidence of employer malfeasance may
be somewhere in the offing, see Maj. Op. at 35 n.4, its opinion
56
is wholly focused on the two incidents and remarks at issue and
intent on directing a trial where the element of imputed
employer liability has not been placed genuinely in dispute.
Whatever hazy ground Clubb may occupy between co-worker and
supervisor, the hazards of imposing employer liability for
remarks made by mid-level workers in workforces that might
number in the hundreds or even thousands pushes imputed
liability well beyond the more cabined circumstances of physical
injury and actual adverse employment actions such as failures to
promote or discharge. Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67-68 (2006). In this case, there were roughly
seventy-five people in the hotel’s food and beverage department
alone. J.A. 135.
Having liability hinge upon utterances, of which companies
have no prior awareness and which no victim has yet reported to
them, poses more than the threat of open-ended liability.
Because liability hinges on unanticipated utterances, it will
tend to drive employers as a protective measure into the role of
censors of all speech that even conceivably could give offense.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(rejecting employer liability for “the sporadic use of abusive
language, gender-related jokes, and occasional teasing”
(citation and quotation marks omitted)). We may assuredly expect
the arrival of workplace speech codes, which, if not already
57
present, will not be long in coming. Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that Title
VII was not meant to be “a general civility code for the
American workplace”). Such a heavy employer hand is a high price
to pay for the majority’s holding, and it is one that is not
congruent with Supreme Court rulings or consistent with our
freedoms.
II.
As to the Title VII retaliation claim, an employee must
show that her belief that a hostile work environment exists or
is coming into existence is objectively reasonable. See Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per
curiam) (applying the objective standard); EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005).
Under the circumstances presented here, Liberto’s belief
that a hostile work environment existed or was coming into
existence was objectively reasonable. The words alleged to have
been spoken by Clubb were abhorrent. Moreover, Clubb uttered the
epithet on separate occasions and directed it personally at
Liberto. And the entire course of conduct surrounding the
offensive remarks was abusive. This conduct on the part of Clubb
was enough to bring Boyer-Liberto under the protection of the
anti-retaliation provision of Title VII when she reported it. An
58
employee is not an expert in hostile work environment law. Any
reasonable person must feel free to report this sort of
vilification without being subject to retaliatory actions. An
employee must feel safe and secure in bringing an incident of
this nature to the attention of management.
Any decent management, moreover, would seemingly wish to
know of such an occurrence under its roof. Employers must have
complaint procedures for employees to utilize at an early stage
-- before harassing environments intensify and spread. See
Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998);
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
Employers are due adequate notice so that they may head off both
the hostile work environment and any resultant liability.
Employees benefit when an emergent hostile work environment is
nipped in the bud.
But here, too, there is a balance to be struck. The annual
number of Title VII retaliation charges filed with the EEOC has
nearly doubled since the late 1990s. Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2531 (2013). Perhaps American
employers have become twice as likely to retaliate against
employees since 1997, but I doubt it. One cause of the dramatic
increase of retaliation claims may very well be a sub voce
chipping away at the objectively reasonable belief standard. See
Id. at 2531-32 (suggesting that “lessening the causation
59
standard” for retaliation claims “could also contribute to the
filing of frivolous claims”). The majority’s approach may very
well “raise the costs, both financial and reputational, on an
employer” where there is no true objectively reasonable belief
in the existence of a hostile workplace. Id. at 2532.
The dangers of allowing the objective standard to slip,
however, go far beyond the financial and reputational costs to
companies. Two severe, if subtle, side effects warrant
discussion: the trammeling of free speech and the construction
of workplace barriers between the races and sexes.
A.
If courts lessen their insistence on an objectively
reasonable belief in a hostile environment and permit the
reporting of all manner of perceived slights to warrant Title
VII protection, we become party to the creation of the workplace
as a zone where First Amendment values have ceased to be
observed. In the context of a hostile work environment claim, it
is “crucial” to use an objectively reasonable person standard
“to ensure that courts and juries do not mistake ordinary
socializing in the workplace” for actionable discrimination.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998). The same is true for retaliation claims.
People will -- and should –- discuss controversial matters
at work. Some of those subjects may well pertain to race and
60
gender. Disagreement on these and other matters may be heated
and robust, but it should not on that account be reportable.
People may also say offensive things in the workplace.
Distasteful, even offensive, speech is unfortunate but it is
often a “necessary side effect[] of the broader enduring values”
that the First Amendment protects. Cohen v. California, 403 U.S.
15, 25 (1971). The premise of the First Amendment is that we as
a people not leap quickly to suppression, see Texas v. Johnson,
491 U.S. 397, 414 (1989), which may well occur if reportage and
punishment for mere speech is an omnipresent possibility.
The remarks alleged here reached the point of abusiveness
accompanied by threatening and intimidating body language. Clubb
approached so closely that Boyer-Liberto “could feel her breath”
and the shouting caused Clubb to “spit on [her] face.” J.A. 241.
Actions are one thing. The greater danger lies in
predicating liability on remarks. Not here, because Clubb’s
language, to say the very least, played “no essential part [in]
any exposition of ideas.” Chaplinksy v. New Hampshire, 315 U.S.
568, 572 (1942). But there will be many instances of
uncomfortable workplace speech that cannot on that basis be
deemed actionably hostile. It has always been the case that
“[t]o justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free
speech is practiced.” Whitney v. California, 274 U.S. 357, 376
61
(1927) (Brandeis, J., concurring) (emphasis added). A central
“function of free speech under our system of government is to
invite dispute.” Terminiello v. City of Chicago, 337 U.S. 1, 4
(1949). Unless the “evil” is “imminent . . ., the remedy to be
applied is more speech, not enforced silence.” Whitney, 274 U.S.
at 377 (Brandeis, J., concurring). More speech means insensitive
expression in the workplace should be countered and denounced as
such. But the bedrock meaning of the First Amendment will be
lost if the expression of disfavored or objectionable positions
on sensitive and volatile issues become subjects of reportage
and sanction. If every co-worker becomes a potential informant,
does this environment not in time come to resemble societies
other than our own?
Anti-discrimination initiatives need not be at war with
free speech. The values protected by the Fourteenth Amendment
need not be inconsistent with those safeguarded by the First.
Good things happen when people, in this case company employees,
talk things out among themselves. Collective discourse and
decision-making is a matter the First Amendment holds dear.
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting) (noting that “the ultimate good desired is better
reached by free trade in ideas -- that the best test of truth is
the power of the thought to get itself accepted in the
competition of the market”). I agree with the majority that
62
“early reporting [is] vital to achieving Title VII’s goal of
avoiding harm.” Maj. Op. at 39. But the majority nowhere
acknowledges the dangers of over-reporting. It drifts ever so
casually toward draconian consequences for mere utterance and
speech. Such blindness to First Amendment values bespeaks a lack
of faith in lateral discussions which would no doubt lead
nowhere in the case of Clubb and plaintiff, but which may be far
preferable to hair-trigger reporting in working out the
misunderstandings that occur in every workplace.
Workplaces in their own way are our town squares. John
talking to Kathy may prove in the end more fruitful than John
running to a higher authority to have Kathy’s point-of-view
condemned. An objective test, not a subjective standard geared
to the most heightened sensibilities, best preserves the balance
between free speech and anti-discrimination law. The fact that
some incidents, as here, are plainly beyond the pale does not
mean we surrender hope in other instances of workers reaching
humane understandings in discussions with themselves. Turning
someone in as a course of first resort or on insubstantial
grounds may perpetuate resentment and bring the prospect of
employee dialogue to a premature end.
The law of hostile environments is not anchored in any
specific statutory provision. Rather, it was derived from Title
VII’s general prohibition of discrimination, Meritor Sav. Bank,
63
FSB v. Vinson, 477 U.S. 57, 64-67 (1986), and kept in proper
perspective, it helps prevent companies from becoming
intolerable places for racial, ethnic, and other minorities to
work. Hostile environment doctrine has also been judicially
developed almost in the manner of federal common law. It would
be wrong not to infuse this development with one of the greatest
of our enumerated constitutional values, that of freedom of
speech. Especially when the speech concerns current affairs or
other public issues, courts must take notice. See Snyder v.
Phelps, 131 S. Ct. 1207, 1215-16 (2011). The framers
“believed . . . that public discussion is a political duty.”
Whitney, 274 U.S. at 375 (Brandeis, J., concurring). Civic
health requires that Americans not be fearful of their freedoms,
whether in public or private venues, and especially a freedom so
precious as the exercise of speech. The majority unfortunately
takes less than token recognition of this value. It does not
herald for future courts the dangers of taking the American
workplace down a more autocratic path.
B.
The objects of civil rights laws are to eliminate
discrimination, bring Americans together, and break down
barriers. This purpose remains crucial, as Congress has
repeatedly attested. And yet our schools are resegregating. Our
neighborhoods in all too many instances are very far apart. The
64
workplace may be where racial interactions are most frequent,
and it will be sad if law pushes this last remaining venue into
the more separatist habits that elsewhere too frequently
prevail.
Title VII guards against this. Title VII will be counter-
productive, however, if it countenances workplaces over-reliant
on employee surveillance and reportage. Such a system erects
barriers rather than dismantles them. In an ideal world, the
races and sexes would interact spontaneously, in natural and
creative ways. There would be no single correct way to behave
around, no single correct thing to say to, a worker of another
race or gender. We are people -- human beings -- with
commonalities far more profound than superficial differences.
The majority surely agrees. Yet by focusing on sick
“bigots” who “belittle racial minorities,” Maj. Op. at 38
(quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 353-54 (4th
Cir. 2006) (King, J., dissenting)), the majority sells the more
generous potential of most Americans short.
Title VII must not contribute an added element of
inhibition when we communicate with those of another sex or
race. And yet I fear that is precisely what will happen if the
objectively reasonable standard is diluted in favor of
retaliation protection for any report, however marginal,
trivial, or unsubstantiated. The Supreme Court has made clear
65
that Title VII’s “prohibition of harassment on the basis of sex
requires neither asexuality nor androgyny in the workplace.”
Oncale, 523 U.S. at 81. But where every ambiguous or
unintentionally insensitive remark is going to be reported
upstairs, employees naturally will seek to cluster with those
who look, act, and think “like themselves.” Instead of an
interactive community in which individual attributes can be
recognized, understood, celebrated, and embraced, the result
will be a more fractious and walled-off working environment
where noxious stereotypes persist. Keeping interracial distance
and maintaining interracial silence will become the safest
course, the easiest way to avoid a blot on one’s record that
comes even with a co-worker’s erroneous report. This road is in
no one’s interest, certainly not ours as a nation or as
individuals in the simple search for friends. We must not become
others to ourselves.
III.
The search for balance is important in law, lest the aims
of one of America’s greatest Acts be compromised by a needlessly
censored and suspicious workplace. I believe the majority is
right in allowing plaintiff’s retaliation claim to proceed, but
wrong in not affirming the district court on the merits of the
Title VII claim. More than that, I regret that my friends in the
66
majority did not do more to recognize that this is an equation
with two sides, an area with more than one dimension. The
harmony of balance is nowhere to be found.
67
NIEMEYER, Circuit Judge, dissenting:
The majority holds that an employee’s use of the term
“porch monkey” twice in a 24-hour period, when talking to a
fellow employee about a single workplace incident, transformed
the workplace into a racially hostile environment and thereby
effected a discriminatory change in the terms and conditions of
the offended employee’s employment, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.
It holds further that the offended employee could therefore have
had a reasonable belief “that a hostile work environment [was]
in progress,” ante, at 44 (emphasis added), such that her
opposition to the incident justified her retaliation claim
against her employer. It reaches these unprecedented
conclusions by relying on selected and distilled snippets from
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which,
according to the majority, justify the conclusion that “an
‘isolated incident’ of harassment can ‘amount to discriminatory
changes in the terms and conditions of employment,’ if that
incident is ‘extremely serious,’” ante, at 26 (quoting Faragher,
524 U.S. at 788).
Faragher, however, does not support the majority’s reading
of it, and the majority’s conclusions are otherwise without
precedent. First, in the very quotation relied on by the
majority, the Faragher Court noted that “isolated incidents” --
68
using the plural -- might, if “extremely serious,” satisfy the
severity requirement for racial harassment. 524 U.S. at 788.
To rationalize its holding, the majority thus reads the plural
“incidents” in Faragher to refer only to a “single incident.”
Second, and more importantly, the majority fails to note
that the portions of Faragher to which it cites were part of the
Supreme Court’s much lengthier discussion -- and substantively
different message -- describing the type of conduct that would
not violate Title VII. In that discussion, the Court drew on
several opinions from the courts of appeals and noted, for
instance, that the “‘mere utterance of an ethnic or racial
epithet which engenders offensive feelings in an employee’ would
not sufficiently alter terms and conditions of employment to
violate Title VII.” Faragher, 524 U.S. at 787 (emphasis added)
(quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see
also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 66 (1986)
(same). The Court also cited approvingly to a text on
discrimination law which observed, in part, that “a lack of
racial sensitivity does not, alone, amount to actionable
harassment.” Id. (quoting 1 Barbara Lindemann & Paul Grossman,
Employment Discrimination Law 349 (3d ed. 1996)). Finally, the
Court summarized some of its earlier rulings in the very
paragraph relied on by the majority:
69
So, in Harris [v. Forklift Systems, Inc., 510 U.S. 17
(1993)], we explained that in order to be actionable
under the statute, a sexually objectionable
environment must be both objectively and subjectively
offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact
did perceive to be so. We directed courts to
determine whether an environment is sufficiently
hostile or abusive by looking at all the
circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee’s work performance. Most
recently, we explained that Title VII does not
prohibit genuine but innocuous differences in the ways
men and women routinely interact with members of the
same sex and of the opposite sex. A recurring point
in these opinions is that simple teasing, off-hand
comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in
the terms and conditions of employment.
Id. at 787-88 (emphasis added) (citations and internal quotation
marks omitted).
Without the abridged Faragher snippets, which fail to
capture that case’s larger message, the majority is left with
virtually no support for its holdings and certainly none from
the language of Title VII or any Supreme Court decision
construing it. Indeed, the Supreme Court has steadfastly
maintained that, to be actionable under Title VII, conduct must
be so “severe or pervasive” as “to alter the conditions of [the
victim’s] employment and create an abusive working environment.”
Meritor, 477 U.S. at 67 (alteration in original) (quoting Henson
v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)) (internal
70
quotation marks omitted). And because hostile work environment
claims by their “very nature involve[] repeated conduct,” the
Court has further recognized -- and the majority acknowledges,
see ante, at 26 -- that “a single act of harassment may not be
actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 115 (2002). Instead, such claims must be “based
on the cumulative effect of individual acts.” Id.
To be absolutely clear, this case does not present the
question of whether an employee should be allowed to call a
fellow employee a “porch monkey.” Such a racially derogatory
and highly offensive term does not belong in the workplace, and
I condemn it. Nor does this case present the question of
whether an employee, justifiably offended by being called a
“porch monkey,” should report such an incident to management.
Rather, the issues here are substantially narrower.
Framed by principles of well-established law, the first
question in this case is whether a reasonable jury could find
that an employee’s use of the term “porch monkey” twice in a 24-
hour period, when talking to a fellow employee about a single
incident, could objectively be considered so severe as to
transform the workplace into a racially hostile environment,
thereby effecting a discriminatory change in the terms and
conditions of her employment. And if we were to conclude that a
reasonable jury would be unable to make such a finding on the
71
summary judgment record in this case, then the next question
would be whether a reasonable jury could find that the offended
employee engaged in protected activity when she reported the
conduct because she reasonably believed that her employer had
committed or was in the process of committing an employment
practice that was made unlawful by Title VII. See 42 U.S.C.
§ 2000e-3(a).
I respectfully submit that the pertinent law, when applied
to the facts in the record, requires a negative response to both
questions. I would therefore affirm the district court’s
similar conclusions.
I
Reya Boyer-Liberto, an African-American woman, began
working at the Clarion Resort Fontainebleau Hotel (the
“Clarion”) in Ocean City, Maryland, on August 4, 2010. The
Clarion is a typical oceanfront hotel, with several restaurants,
bars, a nightclub, and banquet facilities, and it typically
employs about 75 people in its Food and Beverage Department.
Liberto started as a morning hostess in the hotel’s main
restaurant, but she proceeded to work in many of the hotel’s
other Food and Beverage positions, including serving,
bartending, and working banquets. According to Leonard Berger,
the Clarion’s owner, Liberto struggled in all of the positions
72
to which she was assigned, and he terminated her employment on
September 21, 2010, because she “had failed at four jobs” and
“[t]here [were] no more places for her.”
During her employment, Liberto interacted with Trudi Clubb,
a white woman, who was a longtime employee at the Clarion and a
friend of Berger’s. Clubb worked part-time as an evening
restaurant manager, and she described her responsibilities in
that role as “getting things going for the early part of the
day, seeing that the crew is well-equipped and ready to present
themselves to the customers, getting the tables ready, getting
the buffet . . . ready, overseeing all the items that need to be
done,” and generally helping out as needed. Clubb directly
reported to Richard Heubeck, the Clarion’s Food and Beverage
Director, as well as Mark Elman, the hotel’s General Manager.
Clubb did not participate in hiring decisions, and there is no
indication in the record that she was authorized to fire,
demote, or otherwise take tangible employment actions against
other members of the Clarion’s staff.
In any event, whatever the exact nature of Clubb’s role at
the Clarion, Liberto testified during her deposition that she
never understood Clubb to be a supervisor or even a manager. To
be sure, Liberto believed that Clubb, who had worked at the
Clarion for close to 20 years and had a longstanding
relationship with Berger, had power that she, a brand-new
73
employee, did not have. But Liberto stated that she reported to
Heubeck and to a manager named Jamie Avery, and she was adamant
that she never thought of Clubb as her manager. Instead, her
“understanding of . . . Clubb was that she was basically a
friend of Dr. Berger’s that was there to greet people and just
to be a smiling face” -- in other words, that Clubb was merely a
“glorified hostess.” Indeed, Liberto stated that she was “told
by everyone” that she should just “humor” Clubb and that Avery
specifically told her “not to go to [Clubb] because [Clubb] did
not have the power to do voids or make decisions.” She
explained that, although she listened to Clubb, she did so only
to the extent that she had “to be respectful and listen to
everyone [she] work[ed] with.” And while Clubb would
occasionally ask Liberto or other employees to do tasks, Liberto
testified that “it was not a regular routine . . . [for Clubb
to] instruct[]” other employees and that Clubb did not correct
her work.
Liberto testified that, soon after she had started working
at the Clarion, she felt as though Clubb had “singled [her] out”
and had threatened to take advantage of her personal
relationship with Berger to make trouble for Liberto. But the
incident central to this action occurred more than a month after
Liberto had been hired.
74
Late on the night of September 14, Liberto was serving
drinks when a customer ordered a “Hula Hula,” a cocktail that
was particularly time-consuming to make. When the bartender at
the restaurant’s primary bar refused to make the drink, Liberto
walked around to the Clarion’s “pub bar” to order the drink
there. Once the drink was ready, Liberto passed through the
kitchen on her way back to the dining room, even though that was
a much longer route, so as to avoid the primary bartender who
refused to make the “Hula Hula.” As she did so, Clubb yelled
out to Liberto that she was not supposed to cut through the
kitchen, but Liberto did not hear Clubb. Clubb then approached
Liberto as she was preparing the customer’s check, yelling at
Liberto for ignoring her and calling Liberto “deaf.” Liberto
said that the distance between the two was close enough that she
could “feel [Clubb’s] breath” and that spittle from Clubb’s
mouth was hitting her. Liberto shook her head and said “okay,”
but largely went about her work, which made Clubb more agitated.
As the episode concluded and Clubb was walking away, Clubb said
that she was “going to make [Liberto] sorry” and called Liberto
either a “damn or dang, porch monkey.”
At the beginning of her shift on September 15, Liberto went
to Heubeck’s office to complain about Clubb’s conduct. During
the meeting, Clubb came in and said to Liberto, “I need to speak
to you, little girl.” Liberto told Clubb that she was currently
75
speaking with Heubeck, but Clubb responded that she was “more
important.” Liberto and Clubb then sat down at a table outside
Heubeck’s office, and Clubb scolded Liberto for “abandoning
[her] station” the previous night. As this meeting broke up,
Clubb said that “she was going to go to Dr. Berger” and “teach
[Liberto] a lesson.” Using a raised voice, Clubb again called
Liberto a “porch monkey.”
A couple of days later, on September 17, 2010, Liberto
spoke by telephone with Nancy Berghauer, the Clarion’s Human
Resources Director, regarding Clubb. Berghauer made typewritten
notes of the conversation and forwarded them to Berger and
Elman. The next day, September 18, Elman met with Liberto to
discuss the situation and to ensure that Berghauer’s notes were
accurate. That same day, Heubeck met with Clubb to discuss the
incident, and Clubb denied Liberto’s allegations. Heubeck
nonetheless issued Clubb a written warning.
When, on September 17, Berger learned about the conflict
between Clubb and Liberto, he asked Heubeck to update him on
“exactly what was going on,” and he also asked about Liberto’s
job performance. Heubeck reported that Liberto had so far
performed poorly in every job to which she had been assigned.
The next afternoon, Berger met with Elman to review Liberto’s
work file and discovered that Liberto had failed the Clarion’s
bartending test “miserably.” When Berger indicated that he
76
thought the Clarion should terminate Liberto’s employment, Elman
and Berghauer indicated that doing so “could create a situation”
because of Liberto’s complaint. Berger replied that “there’s
not going to be any good time to let her go. The situation will
be there.” After further consulting Heubeck, Berger made the
final decision to terminate Liberto’s employment, and Liberto
was notified of the decision on September 21. Clubb was not
involved in the decision, only learning of it a week later.
Berger acknowledged in his deposition that Liberto’s complaint
prompted him to take a look at her record, but he asserted that
his decision to fire her “had nothing to do with her complaint”
and was instead based solely on her poor performance.
Liberto filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on September 23,
2010, alleging discrimination based on her race and retaliation
based on her engagement in protected activity, in violation of
Title VII. The EEOC issued Liberto a Notice of Right to Sue,
following which Liberto commenced this action.
In her complaint, Liberto asserted four claims for relief:
two counts of racial discrimination by virtue of a hostile work
environment, in violation of Title VII (Count I) and 42 U.S.C.
§ 1981 (Count III), and two counts of retaliation, also in
violation of Title VII (Count II) and § 1981 (Count IV).
Liberto filed her Title VII claims against only the
77
Fontainebleau Corporation, trading as the Clarion Resort
Fontainebleau Hotel, but named both the Fontainebleau
Corporation and Berger as defendants in her § 1981 claims.
Following discovery, the defendants filed a motion for
summary judgment. Taking Liberto’s deposition testimony as
true, the district court held that the offensive conduct was too
isolated to support Liberto’s claims for discrimination and
retaliation. Accordingly, by order dated April 4, 2013, the
court entered judgment in favor of the defendants. This appeal
followed.
II
In holding that the district court erred by entering
summary judgment for the defendants on Liberto’s hostile work
environment claims, the majority extends Title VII liability
beyond the statute’s textual scope and beyond what the Supreme
Court has recognized in construing the statute.
The governing principles are well established. Title VII
makes it “an unlawful employment practice for an employer . . .
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). “This provision
obviously prohibits discrimination with respect to employment
78
decisions that have direct economic consequences, such as
termination, demotion, and pay cuts.” Vance v. Ball State
Univ., 133 S. Ct. 2434, 2440 (2013). Since 1986, however, the
Supreme Court has recognized that this provision “not only
covers ‘terms’ and ‘conditions’ in the narrow contractual
sense,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
78 (1998), but also forbids the “practice of creating a working
environment heavily charged with . . . discrimination,” Meritor,
477 U.S. at 66 (quoting Rogers, 454 F.2d at 238); see also
Harris, 510 U.S. at 21 (1993) (“The phrase ‘terms, conditions,
or privileges of employment’ evinces a congressional intent to
strike at the entire spectrum of disparate treatment . . . in
employment, which includes requiring people to work in a
discriminatorily hostile or abusive environment” (citation and
some internal quotation marks omitted)). But in order to ensure
that a cause of action based on an alleged hostile work
environment is justified by the statute’s text, the Supreme
Court has emphasized time and time again that the underlying
harassment must be “so ‘severe or pervasive’ as to ‘alter the
conditions of [the victim’s] employment.’” Faragher, 524 U.S.
at 786 (alteration in original) (emphasis added) (quoting
Meritor, 477 U.S. at 67); see also, e.g., Vance, 133 S. Ct.
at 2441 (“In [hostile work environment] cases, we have held, the
plaintiff must show that the work environment was so pervaded by
79
discrimination that the terms and conditions of employment were
altered”); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752
(1998) (recognizing that only harassing conduct that is “severe
or pervasive” can effect a “constructive alteration[] in the
terms or conditions of employment” and thus become “cognizable
under Title VII”); Oncale, 523 U.S. at 81 (emphasizing that
Title VII’s “prohibition of harassment . . . forbids only
behavior so objectively offensive as to alter the ‘conditions’
of the victim’s employment”); Harris, 510 U.S. at 21 (“When the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment, Title VII is violated” (citations
and internal quotation marks omitted)).
This demanding standard thus requires more than “conduct
that is merely offensive.” Harris, 510 U.S. at 21; see also
Oncale, 523 U.S. at 80 (noting that Title VII will not become “a
general civility code for the American workplace” so long as
courts pay “careful attention to the requirements of the
statute”). Indeed, the Supreme Court has specifically
recognized that the “‘mere utterance of an ethnic or racial
epithet which engenders offensive feelings in an employee’ would
not affect the conditions of employment to [a] sufficiently
significant degree to violate Title VII.” Meritor, 477 U.S.
80
at 67 (emphasis added) (quoting Rogers, 454 F.2d at 238); see
also Harris, 510 U.S. at 21. Similarly, the Court has stressed
that “simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’” Faragher,
524 U.S. at 788 (citation and some internal quotation marks
omitted). It should thus come as no surprise that the Court has
described the “very nature” of a hostile work environment claim
as “involv[ing] repeated conduct.” Morgan, 536 U.S. at 115; see
also id. (“The ‘unlawful employment practice’ [at issue in a
hostile work environment claim] . . . cannot be said to occur on
any particular day. It occurs over a series of days or perhaps
years and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own. Such claims are
based on the cumulative effect of individual acts.” (Citation
omitted)).
Finally, the Court has emphasized that the impact of
offensive workplace conduct on an employee’s work environment
cannot be “measured in isolation.” Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 270 (2001) (per curiam). Instead, courts
must determine “whether an environment is sufficiently hostile
or abusive [to support a claim] by ‘looking at all the
circumstances,’ including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
81
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’”
Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).
Under these controlling principles, Clubb’s alleged use of
the term “porch monkey” twice in less than 24 hours when talking
about a single incident was, as a matter of law, not so severe
or pervasive as to produce a racially hostile work environment
that changed the terms and conditions of Liberto’s employment.
There is no suggestion by the majority that the alleged
harassment was sufficiently pervasive to qualify -- nor could
there be. As such, this case falls outside the heartland of
hostile work environment claims, the “very nature [of which]
involves repeated conduct.” Morgan, 536 U.S. at 115. Instead,
the only question at this juncture is whether a jury that
believed Liberto’s description of events could find that Clubb’s
conduct was so severe that it altered the terms and conditions
of Liberto’s employment by creating a work atmosphere that was
objectively racially hostile. The answer is plainly no. To be
sure, the term “porch monkey” is an odious racial epithet, and
any reasonable person in Liberto’s position would of course be
offended by its use. But the “‘mere utterance of an ethnic or
racial epithet,’” which offends an employee, does not “affect
the conditions of employment to [a] sufficiently significant
degree to violate Title VII.” Meritor, 477 U.S. at 67 (quoting
82
Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21. In
short, Liberto has not presented evidence from which a
reasonable jury could find that her workplace was “permeated
with ‘discriminatory intimidation, ridicule, and insult’ that
[was] ‘sufficiently severe or pervasive to alter the conditions
of [her] employment and create an abusive working environment.’”
Harris, 510 U.S. at 21 (citation omitted) (quoting Meritor, 477
U.S. at 65, 67).
The majority’s conclusion to the contrary rests on two
distortions, one factual and one legal. First, the majority
brazenly distorts the facts contained in the summary judgment
record regarding Liberto’s understanding of Clubb’s role at the
Clarion. The majority begins by stating that the current record
does not establish “whether Clubb was actually Liberto’s
supervisor or simply her co-worker.” Ante, at 30 (emphasis
added). But nonetheless it then proceeds to “deem Clubb to have
been Liberto’s supervisor” for the purpose of “gauging the
severity of Clubb’s conduct,” ante, at 32, on the theory that
Clubb portrayed herself as having the ability to get Liberto
fired by taking advantage of her friendship with Berger. From
this, the majority goes yet further and presumes that Liberto
must have believed that Clubb was effectively her supervisor,
thus lending a “particularly threatening character” to Clubb’s
83
conduct. Ante, at 32 (quoting Ellerth, 524 U.S. at 763)
(internal quotation marks omitted).
There are, however, two significant problems with the
majority’s approach. First, it is highly doubtful that Clubb,
who may have wielded influence on the Clarion’s owner as a
result of a personal relationship but who lacked direct
authority to take tangible employment actions or even to
recommend formally that such actions be taken, would qualify as
Liberto’s supervisor. Indeed, the Supreme Court recently
clarified what makes an employee a “supervisor” in the context
of hostile work environment claims, holding that the critical
consideration is whether “he or she is empowered by the employer
to take tangible employment actions against the victim.” Vance,
133 S. Ct. at 2439 (emphasis added). In so holding, the Court
explained that this definition would typically allow an
employee’s supervisory status to be “readily determined,
generally by written documentation.” Id. at 2443; see also id.
at 2449 (“The interpretation of the concept of a supervisor that
we adopt today is one that can be readily applied”). The Court
indicated that employees can still qualify as supervisors even
if their “decisions [are] subject to approval by higher
management.” Id. at 2446 n.8. It similarly noted that if the
individuals vested with decisionmaking power “have a limited
ability to exercise independent discretion when making
84
decisions” and must instead “rely on [the recommendations of]
other workers who actually interact with the affected employee”
then “the employer may be held to have effectively delegated the
power to take tangible employment actions to the employees on
whose recommendations [the individual formally vested with
decisionmaking authority] relies.” Id. at 2452. But both of
those situations are a far cry from an employee whose only
influence comes from having the ear of the company’s owner
because of their personal friendship.
Moreover, even setting that issue aside, the majority’s
assumption that Liberto must have perceived Clubb as her
supervisor flies in the face of Liberto’s own deposition
testimony about her understanding of Clubb’s place in the
Clarion’s hierarchy. When asked about her understanding of
Clubb’s role, Liberto responded, “My understanding of Trud[i]
Clubb was that she was basically a friend of Dr. Berger’s that
was there to greet people and just to be a smiling face.” She
added, “I was told by everyone, oh, just, you know, humor
[Clubb]. . . . [T]hat’s pretty much what everyone would say
about her.” When pressed, she was adamant that she did not
understand Clubb to be a manager:
Q. Isn’t it true that you were told that [Clubb] was
the restaurant manager?
A. Never.
85
Q. Is it your -- is it your testimony that you did
not know Trud[i] Clubb was the restaurant manager?
A. Absolutely that is my testimony.
Q. You never knew throughout your entire employment
with the Clarion that she was a manager?
A. Never. I reported to Jamie [Avery], and Jamie,
as a matter of fact, told me not to go to [Clubb]
because [Clubb] did not have the power to do voids or
make decisions. I had to report to Jamie or Richard
[Heubeck]. And at the time [Clubb] did not hold any
management cards or keys as Jamie did.
(Emphasis added). And when asked whether she “thought [she] had
to listen to [Clubb],” Liberto’s response was just that she
“ha[d] to be respectful and listen to everyone [she] work[ed]
with.” ∗
The majority’s conclusion that we should “deem Clubb to
have been Liberto’s supervisor” for the purpose of “gauging the
severity of Clubb’s conduct” simply cannot be reconciled with
this testimony. To the contrary, Liberto’s understanding of
∗
In support of its dubious contention that Liberto
perceived Clubb to be in a position to have her employment
terminated, the majority points to a September 18, 2010 email
from Elman to Heubeck and Berghauer in which Elman recounted his
meeting earlier that day with Liberto. See ante, at 10. Elman
wrote that he had informed Liberto that Clubb was her “boss.”
But as the majority itself acknowledges, at this stage of the
case, we must accept the version of events Liberto recited in
her deposition testimony. See ante, at 4 n.1. And Liberto’s
testimony contradicts Elman’s apparent understanding of Clubb’s
relationship to Liberto. Moreover, in light of the adamancy
with which Liberto testified that she “never” understood Clubb
to be a manager, we should not use Elman’s email to refute
Liberto’s clearly stated understanding.
86
Clubb as a “glorified hostess” who everyone “humor[ed]”
substantially lessens the impact that Clubb’s isolated
statements could have had on Liberto’s work environment. See
ante, at 27 (“[A] supervisor’s use of [a racial epithet] impacts
the work environment far more severely than use by co-equals”
(second alteration in original) (quoting Rodgers v. Wis. Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (internal quotation
marks omitted).
In addition to relying on a blatant mischaracterization of
Liberto’s understanding of Clubb’s role at the Clarion, the
majority’s conclusion that Liberto’s hostile work environment
claims should reach a jury also rests on a faulty interpretation
of a handful of words from the Supreme Court. Specifically, the
majority places a great deal of emphasis on the Court’s
observation in Faragher that “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of
employment.’” 524 U.S. at 788 (emphasis added) (citation and
some internal quotation marks omitted). Indeed, the majority’s
holding, distilled to its essence, rests entirely on its
conclusion that this is “the type of case contemplated in
Faragher where the harassment, though perhaps ‘isolated,’ can
properly be deemed to be ‘extremely serious.’” Ante, at 34.
87
But in Faragher, the Supreme Court referred to “incidents,”
524 U.S. at 788, not to a single incident. And five years
later, the Court in Morgan confirmed that “repeated conduct” is
the stuff of a hostile work environment. 536 U.S. at 115
(emphasis added). Moreover, while the Faragher Court did not
elaborate on what it envisioned as the kind of extremely serious
isolated incidents that may produce a hostile work environment,
we know from Meritor and Harris that such incidents cannot be
the “mere utterance of an ethnic or racial epithet.” Meritor,
477 U.S. at 67 (quoting Rogers, 454 F.2d at 238) (internal
quotation marks omitted). As the Court has made clear, the
making of such a statement in the workplace, although highly
offensive, “does not sufficiently affect the conditions of
employment to implicate Title VII.” Harris, 510 U.S. at 21. It
is true that Clubb’s alleged conduct was reprehensible. But it
involved no physical assault or threat of physical harm. Cf. 3
Lex K. Larson, Employment Discrimination § 46.05[3][b], at 46-82
(2d ed. 2012) (noting that “a single incident of physical
assault against a co-worker that is motivated by
[discriminatory] animus can qualify as severe enough to
constitute an alteration of the co-worker’s conditions of
employment”). Moreover, even though the first encounter took
place in a crowded dining room, it appears that no one heard
Clubb direct the epithet at Liberto on either occasion,
88
indicating that the name-calling was not publicly humiliating.
And again, Liberto thought that she was being upbraided by a co-
worker, not her supervisor. Taken together, these
considerations show that, as a matter of law, Clubb’s alleged
conduct did not amount to the “extremely serious” “isolated
incidents” that the Faragher Court envisioned as being capable
of effecting a “discriminatory change[] in the ‘terms and
conditions of [the plaintiff’s] employment.’” 524 U.S. at 788.
The majority acknowledges that this case marks the first
time that our court has concluded that a reasonable jury could
find the presence of a hostile work environment based on what
was, at most, two repeated statements relating to a single
incident. See ante, at 34. What the majority does not
acknowledge, however, is that today’s decision makes our court
an outlier among the other courts of appeals. And instead of
being straightforward about that fact, the majority attempts to
bolster its conclusion with citations to the Eleventh Circuit’s
decision in Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th
Cir. 2014), and the D.C. Circuit’s decision in Ayissi-Etoh v.
Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013). See ante, at 33-34.
But both cases involved conduct more pervasive and/or more
severe than that alleged by Liberto here.
In Adams, one of the plaintiffs alleged that his supervisor
carved the slur “porch monkeys” into the aluminum of the ship on
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which they were working, and the Eleventh Circuit observed that
that “isolated act” was “severe.” 754 F.3d at 1254. But the
same plaintiff also alleged that he “saw one coworker wear a
shirt with a Confederate flag”; that he “regularly saw racist
graffiti in the men’s restroom”; and that when he reported the
racist graffiti, his supervisor responded by saying that “it’s
always been like that and if [he] didn’t like it [he could]
quit.” Id. at 1253 (alterations in original) (internal
quotation marks omitted). It was based on the totality of these
allegations that the Eleventh Circuit concluded that “the
harassment [the plaintiff] experienced was frequent and severe,”
such that “[a] reasonable jury could find that [his] work
environment was objectively hostile.” Id. at 1253-54 (emphasis
added).
Similarly, the harassment in Ayissi-Etoh was both more
pervasive and more severe than the harassment at issue here. In
that case, the plaintiff -- an African-American senior financial
modeler -- asked his company’s Chief Audit Executive why he had
not received a raise in conjunction with a recent promotion.
712 F.3d at 574-75. In response, the Executive told him, “For a
young black man smart like you, we are happy to have your
expertise; I think I’m already paying you a lot of money.” Id.
at 575 (internal quotation marks omitted). Several months
later, the plaintiff was discussing his work responsibilities
90
with the company’s Vice President of Internal Audit when the
meeting “became heated” and the Vice President yelled at him,
“Get out of my office nigger.” Id. Although the plaintiff
missed work and was diagnosed with an anxiety disorder, he was
forced to continue working with the Vice President during the
ensuing three-month investigation. Id. Based on this evidence,
the D.C. Circuit held that the plaintiff was entitled to a jury
trial on his hostile work environment claim. These
circumstances in Ayissi-Etoh are readily distinguishable from
those presented here. First, as the court in Ayissi-Etoh noted,
the hostile work environment was precipitated not by a single
event, but rather by two independent statements made by two
different high-ranking company officials who were both
indisputably supervisors of the plaintiff. Id. at 577-78.
Those statements ultimately led to psychological problems and
directly caused the plaintiff to miss work. Id. at 577.
Second, the racist comments were made during conversations about
the plaintiff’s pay and work assignments, thus increasing the
statements’ ability to “alter the conditions of the victim’s
employment.” Harris, 510 U.S. at 21. By contrast, in the case
at hand, (1) there was only one incident involving one alleged
harasser; (2) the alleged harasser was perceived by the
plaintiff to be a “glorified hostess” with no “power to . . .
make decisions”; and (3) although the alleged harasser denied
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making the offensive statement, the employer promptly issued her
a written reprimand, warning her “to be cautious [that] the
language or phrases [that] she uses can not [sic] be perceived
as racist or derogatory.”
For the reasons given, Clubb’s alleged use of the term
“porch monkey” twice in less than 24 hours when talking about a
single incident was not, as a matter of law, sufficiently severe
or pervasive to create a racially hostile work environment that
altered the terms and conditions of Liberto’s employment. I
would therefore affirm the district court’s summary judgment on
Liberto’s Title VII hostile work environment claim.
For the same reasons, I would also affirm the district
court’s summary judgment on Liberto’s hostile work environment
claim under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 184 (4th Cir. 2001) (recognizing that
hostile work environment claims under Title VII and § 1981 are
governed by the same principles).
III
If, as the majority holds, Clubb’s twice calling Liberto a
“porch monkey” in connection with a single workplace incident
was a practice made unlawful by Title VII, it would necessarily
follow that Liberto also stated a retaliation claim, for such a
claim arises when an employee opposes any practice made an
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unlawful practice by Title VII and therefore is subjected to an
adverse employment action. See ante, at 36. The majority could
have ended its retaliation claim analysis without saying more.
But it did not. Instead, it gratuitously proceeded to adopt an
unprecedented standard for retaliation claims that is much
broader than necessary to resolve Liberto’s claim. In doing so,
it also unnecessarily overruled part of our decision in Jordan
v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).
A
As to its new, broad standard for retaliation claims, the
majority moves far beyond the scope of any statutory language or
any Supreme Court precedent to conclude that, even when an
employee opposes a single offensive incident, she has “a
reasonable belief that a hostile work environment is occurring”
whenever the incident is humiliating. Ante, at 43; see also
ante, at 44-45. Applying that standard, the majority concludes
that because “‘porch monkey’ is a racial epithet that is not
just humiliating, but ‘degrading and humiliating in the
extreme,’” Liberto was necessarily opposing a hostile work
environment that was “in progress” when she brought the racial
slurs to management’s attention. Ante, at 45 (quoting Spriggs,
242 F.3d at 185). Undoubtedly, this gratuitous and untenable
holding will generate widespread litigation over the many
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offensive workplace comments made everyday that employees find
to be humiliating.
Turning to the statute, as we must, Title VII’s
antiretaliation provision makes it unlawful “for an employer to
discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Read most
naturally, this provision provides protection from retaliation
to an employee who has opposed an employment practice that is
actually unlawful under Title VII, including her employer’s
maintenance of a racially hostile work environment. And reading
§ 2000e-3(a)’s language generously to give effect to its
purpose, we have held that an employee also engages in protected
activity when she opposes an employment practice that she
reasonably believes to be unlawful, see EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 406-07 (4th Cir. 2005), although the
Supreme Court has not yet gone so far. Specifically, in
Breeden, 532 U.S. at 270, the Court declined “to rule on the
propriety of [the Ninth Circuit’s] interpretation” of § 2000e-
3(a) as “protect[ing] employee ‘oppos[ition]’ not just to
practices that are actually ‘made . . . unlawful’ by Title VII,
but also to practices that the employee could reasonably believe
were unlawful,” “because even assuming [that its interpretation]
is correct, no one could reasonably believe that the incident
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[at issue] violated Title VII.” Finally, we have gone one step
further, recognizing that an employee is protected from
retaliation if, at the time of her complaint, she had “an
objectively reasonable belief in light of all the circumstances
that a Title VII violation has happened or is in progress.”
Jordan, 458 F.3d at 341 (emphasis added).
Under the Jordan standard, when an employee’s complaint
relates to another employee’s harassing conduct, we do not
require the harassment to have already risen to the level
actionable under Title VII in order for her opposition activity
to be protected from retaliation. But when the offending
conduct has not risen to the level of a practice made unlawful
by Title VII, we also recognized that it would be inappropriate
to “simply assume, without more, that the opposed conduct
[would] continue or [would] be repeated unabated.” Jordan, 458
F.3d at 341. Instead, we held that in this incipient stage, a
plaintiff must be able to point to evidence that “reasonably
supports the inference” that the conduct being objected to was
“likely to recur at a level sufficient to create a hostile work
environment.” Id. In other words, for an employee’s report of
objectionable conduct that has not yet become unlawful under
Title VII to qualify as protected activity, the employee must,
at the very least, have an objectively reasonable belief that a
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hostile work environment would result, “based on circumstances
that the employee observes and reasonably believes.” Id.
Here, the majority adopts a standard far beyond that which
we recognized in Jordan and far beyond what any court of appeals
has recognized. It holds that an employee’s single complaint
about a single incident, regardless of whether the incident is
actually unlawful under Title VII or whether the employee
reasonably believes that the incident is likely to recur, can be
the basis for a legitimate retaliation claim, so long as the
conduct is humiliating. See ante, at 43-45. This new standard
will surely generate many new questions about which offensive
workplace comments are objectively humiliating and lead to an
expansion of litigation far beyond Title VII’s design.
I would conclude in this case that the district court
correctly entered summary judgment for the defendants on
Liberto’s retaliation claim because, as a matter of law, she did
not oppose activity that Title VII protects from retaliation
when she reported Clubb’s conduct to the Clarion’s Human
Resources Director. In light of all the circumstances, Clubb’s
use of an offensive racial epithet twice in less than 24 hours
was insufficiently severe to give Liberto an objectively
reasonable belief that she was complaining about the presence of
a racially hostile work environment, rather than simply about
another employee’s inappropriate conduct. Certainly, Liberto
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could have reasonably concluded from Clubb’s demeaning statement
that Clubb herself was a racist. But the fact that a single
employee has revealed herself through an isolated incident to be
bigoted does not translate into an objectively reasonable belief
that the workplace itself has become abusive to employees
because of their race. Cf. Butler v. Ala. Dep’t of Transp., 536
F.3d 1209, 1214 (11th Cir. 2008) (“[N]ot every act by an
employee in opposition to racial discrimination is protected.
The opposition must be directed at an unlawful employment
practice of an employer, not an act of discrimination by a
private individual” (emphasis added) (quoting Little v. United
Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.
1997)) (internal quotation marks omitted).
Moreover, Clubb’s statements were, as a matter of law, too
isolated to give Liberto an objectively reasonable belief that
the offensive conduct was likely to ripen into a hostile work
environment. Liberto has not identified any evidence in the
record suggesting that workplace racism was afoot prior to
Clubb’s statements, nor any evidence suggesting that she had
reason to believe that her supervisors and co-workers would
tolerate such conduct or permit it to recur. Indeed, after
Liberto reported the incident, the Clarion’s management promptly
issued a written reprimand to Clubb, warning her to be cautious
about her language.
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While Liberto had every right to be offended by Clubb’s use
of a racial epithet and acted reasonably and responsibly in
reporting the incident to Clarion’s Human Resources Director,
she lacked a reasonable belief, as required by the language of
Title VII, that she was opposing her employer’s commission of
“a[] practice made . . . unlawful . . . by [Title VII].”
42 U.S.C. § 2000e-3(a). For that reason, I would conclude, as a
matter of law, that she did not engage in protected activity and
that the district court therefore properly entered summary
judgment against her on her retaliation claims.
B
In addition to adopting a broad and unprecedented standard
for evaluating retaliation claims under Title VII, the majority
also gratuitously reverses a portion of Jordan in a manner by
which Judge King, the majority’s author, explicitly vindicates
his dissent in Jordan, notwithstanding his concession that this
case presents distinguishing circumstances.
Notably, the majority does not overturn all of Jordan. It
in no way suggests, for example, that the isolated incident at
issue in that case was sufficiently severe to create a hostile
work environment. Indeed, by “oberserv[ing] that the district
court improperly analogized this matter . . . to Jordan,” the
majority instead confirms that “a racist remark that was made by
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a mere co-worker and not aimed at [the plaintiff] or any other
employee” does not amount to a hostile work environment. Ante,
at 35. Nor does the majority indicate that the plaintiff in
Jordan had a reasonable belief that a hostile work environment
was taking shape at the time he reported his co-worker’s racist
comment to his supervisors. Rather, the only portion of Jordan
that the majority overrules is its already liberalizing rule
that a plaintiff whose retaliation claim is based on an
objectively reasonable belief that a hostile work environment
was in progress, but not yet in existence, need only point to
some evidence indicating that such an environment was “likely to
occur.” Jordan, 458 F.3d at 340; see ante, at 38.
The majority claims that this aspect of Jordan “is
incompatible with Crawford [v. Metropolitan Government of
Nashville & Davidson County, 555 U.S. 271, 279 (2009)], as well
as other Supreme Court decisions directing that Title VII’s
antiretaliation provision be interpreted ‘to provide broad
protection from retaliation.’” Ante, at 41 (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). An
analysis of these cases, however, belies the notion that they
are in tension with Jordan or that, with these decisions, the
Supreme Court has given us license to provide employees with
“broad[er] protection from retaliation” than the text of the
statute justifies.
99
For example, Crawford resolved the narrow question of
whether “an employee who speaks out about discrimination not on
her own initiative, but in answering questions during an
employer’s internal investigation” has opposed an unlawful
employment practice within the meaning of Title VII’s anti-
retaliation provision. 555 U.S. at 273. In holding that such
an employee had engaged in protected activity, the Supreme
Court’s analysis focused on the “ordinary meaning” of the term
“oppose,” leading the Court to conclude -- as a matter of
statutory interpretation -- that “[t]here is . . . no reason to
doubt that a person can ‘oppose’ by responding to someone else’s
question just as surely as by provoking the discussion, and
nothing in the statute requires a freakish rule protecting an
employee who reports discrimination on her own initiative but
not one who reports the same discrimination in the same words
when her boss asks a question.” Id. at 276-78. Cleary, nothing
in this holding is “incompatible” with Jordan. Ante, at 41.
Similarly, the issue in Burlington Northern was whether
“Title VII’s antiretaliation provision forbids only those
employer actions and resulting harms that are related to
employment or the workplace,” as does the statute’s substantive
antidiscrimination provision. 548 U.S. at 61. In answering
that question in the negative, the Court emphasized that
language in the antidiscrimination provision “explicitly
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limit[s] the scope of that provision to actions that affect
employment or alter the conditions of the workplace,” whereas
“[n]o such limiting words appear in the antiretaliation
provision.” Id. at 62. The Court further reasoned that the
difference between the two provisions’ purposes confirms “that
Congress intended the differences that its language suggests.”
Id. at 63. It was on this basis that the Court rejected the
view that it would be “‘anomalous’ to read the statute to
provide broader protection for victims of retaliation than for
those whom Title VII primarily seeks to protect, namely, victims
of race-based, ethnic-based, religion-based, or gender-based
discrimination.” Id. at 66. As such, despite the majority’s
suggestion to the contrary, Burlington Northern does not stand
for the proposition that courts must always adopt the broadest
possible construction of Title VII’s antiretaliation provision,
and it certainly does not authorize courts to afford plaintiffs
protection beyond what the statute itself provides.
At a more general level, the majority faults the Jordan
standard as being at odds with “the hope and expectation that
employees will report harassment early, before it rises to the
level of a hostile work environment.” Ante, at 38. Along these
lines, the majority suggests that, when combined with the early
reporting “compelled by the Ellerth/Faragher defense,” Jordan
places an employee who has experienced an isolated incident of
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harassment in an untenable position, leaving her vulnerable to
retaliation if she reports her supervisor’s conduct and
insulating her employer from liability should she fail to report
it. Ante, at 39. The majority’s dilemma, however, is a false
one. First, the Ellerth/Faragher affirmative defense only
enables an employer to avoid vicarious liability for its
supervisor’s creation of a hostile work environment if the
employer can prove both that it “exercised reasonable care to
prevent and correct promptly any . . . harassing behavior, and
. . . that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise.” Ellerth, 524 U.S.
at 765 (emphasis added); see also Faragher, 524 U.S. at 807. It
is highly doubtful, however, that an employer would be able to
show that an employee acted unreasonably by choosing not to
immediately report an isolated incident of workplace misconduct
that was not in itself sufficient to give rise to a reasonable
belief that a hostile work environment was in progress. Cf.
Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 270 (4th
Cir. 2001) (holding that the employer had established the
affirmative defense because, “[i]n light of th[e] long-term and
persistent harassment, [the plaintiff] cannot be excused from
failing to report [her supervisor’s conduct]” sooner (emphasis
added)). Second, the majority combines the qualitative
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requirement of objective reasonableness in reporting harassment
with the laches concept described by the Supreme Court in
Faragher, 524 U.S. at 807, and developed by this court in
Matvia, 259 F.3d at 270, in order to invent a fictitious Catch-
22. In actuality, an employee only risks retaliation by
reporting too early when there is insufficient conduct about
which to complain under Title VII, and she only risks dismissal
of her claim for reporting too late when she inordinately delays
coming forward.
More to the point, however, it is not the role of this
court to incentivize the early reporting of objectionable
conduct where Congress itself has not seen fit to do so.
Indeed, Congress could have written Title VII’s antiretaliation
provision to provide protection to every employee who reports
any offensive, racially or sexually charged workplace incident
that makes him or her uncomfortable. But it did not. See,
e.g., Breeden, 532 U.S. at 269-71 (holding that an employee did
not engage in protected activity when she complained that,
during a meeting, her supervisor read aloud a sexually explicit
statement, which a job applicant had purportedly made, before
looking at her and stating, “I don’t know what that means,” and
then chuckling along with a male employee who offered to explain
the comment to him later). Instead, Congress chose to protect
only employees who have “opposed any practice made an unlawful
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employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a).
We have already liberally interpreted this provision to protect
employees who possess an objectively reasonable belief that they
are complaining about a Title VII violation that has occurred or
is in progress, a standard that serves to protect employees in
close cases. But we cannot simply presume that a single
incident of racially charged workplace misconduct will
inevitably ripen into an actual racially hostile work
environment, lest our interpretation become completely
untethered from Title VII’s text. Instead, a plaintiff whose
retaliation claim is based on an objectively reasonable belief
that she was opposing a hostile work environment that was in the
process of developing must be able to point to some evidence
that supports the inference that such an environment was “likely
to occur.” Jordan, 458 F.3d at 340 (emphasis added).
Instead of requiring the plaintiff to produce such
evidence, the majority concludes that opposing an incident that
is humiliating, regardless of whether it could lead to a hostile
work environment, is protected. Ante, at 44-45. Even a cursory
consideration of this new per se rule quickly reveals its
problems. An isolated incident of humiliating harassment is, of
course, more serious than “a mere offensive utterance.” Harris,
510 U.S. at 23. But it is far from clear why a single incident
of humiliating harassment that is insufficient to support a
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reasonable belief that a hostile work environment had come into
existence would nonetheless give rise to a reasonable belief
that a hostile work environment was in the process of
developing. The majority must be assuming that, if a single
instance of humiliating harassment has occurred, then
objectionable conduct is bound to be repeated at a level
sufficient to create a hostile work environment. But this, of
course, does not follow. And I can anticipate much hand-
wringing in the legal community when determining whether a
particular incident qualifies as humiliating or whether it
remains merely an offensive utterance.
The majority’s position is also entirely pessimistic about
the ability and desire of employers to stop the progression from
isolated utterances of racial slurs to a hostile work
environment. Indeed, the majority manifests a fundamental
distrust of employers, assuming that, once a humiliating epithet
is uttered, the development of a hostile work environment is a
fait accompli -- in other words, that employers are powerless or
unwilling to prevent a descent into pervasive hostility. This
assumption, of course, finds no more support in Title VII or
Supreme Court precedent than it does in basic logic. What is
more, even the most conscientious employer will now be reluctant
to fire an objectively underperforming employee who has reported
a racial epithet that could be considered humiliating because,
105
under the majority’s standard, that employee is effectively
presumed to have reasonably believed that he was protesting an
unlawful employment practice when he made his complaint. This
presumption is at odds with Title VII, the Supreme Court’s
jurisprudence, and the fundamental character of employers in
America’s modern workplace.
IV
At bottom, I would conclude, as did the district court,
that while Clubb’s comments to Liberto were unacceptably
offensive, they were made in connection with an isolated
incident, and therefore they were insufficient to demonstrate
the existence of a hostile work environment that altered the
terms and conditions of Liberto’s employment. I would also
conclude, as did the district court, that because Title VII’s
antiretaliation provision requires, as we have liberally
construed it, that an employee’s opposition must be to a hostile
work environment that she reasonably believed was in progress,
Liberto’s retaliation claims also fail. Thus, I would affirm.
106