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Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015)

The Fourth Circuit en banc finally undoes an enduring wrong by overruling Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holding that an employee remains protected by Title VII's anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment.

Boyer-Liberto v. Fontainebleau Corp., No .13-1473 (4th Cir. May 7, 2015):  Jordan held (in a 2-1 decision) that an employee who complained about a single incident of racial harassment - the plaintiff overheard an ugly racial remark in an employee common area - was not engaged in protected opposition activity under Title VII, because a single remark not specifically directed at the employee could not reasonably be perceived as racial harassment. This rule pervaded Fourth Circuit law for nearly a decade.

Liberto worked at a Maryland oceanside resort operated by Clarion, performing a variety of functions including server. On September 14, 2010, she supposedly violated protocol by carrying a cocktail through the kitchen. This lead to a confrontation with Ms. Clubb, Clubb, a Food and Beverage Manager. Clubb is white, Liberto is black. Clubb accused Liberto of violating the work rules and ignoring her verbal warning:

"[Clubb] 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 nneither walked through the kitchen nor ignored Clubb, and Liberto repeatedly indicated that she understood and agreed."

Liberto left the scene, but Clubb continued the confrontation later that evening:

"Clubb threatened Liberto in words that included, '[I'm] going to get [you]' and '[I'm] going to make [you] sorry.' ... Clubb then concluded her threat by turning to look at Liberto and calling her neither a 'damn porch monkey' or a 'dang porch monkey.'"

Clubb did not drop the issue, and angrily confronted Liberto the next day, calling her a "little girl" and again threatening her:

"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.' ... Her voice still loud and angry though somewhat lower than before, Clubb capped the threat by looking directly at Liberto and again calling her a 'porch monkey.'"

A few days later, Liberto complained to HR director Berghauer about racial harassment. Clubb was given a written reprimand. Just one day later, hotel owner Berger inquired about Liberto's performance, received a negative report, and fired Liberto a few days later.

Liberto filed an action alleging Title VII and § 1981 race harassment and retaliation. The district court granted summary judgment. It held, with respect to the retaliation claim, based on the Jordan decision, "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." The initial Fourth Circuit panel affirmed, again based on Jordan. The unanimous panel held that the racial harassment claim failed because the behavior was not severe or pervasive. The panel also held (2-1) that the retaliation claim failed, based on the Jordan authority.

The Fourth Circuit reverses summary judgment, 12-3. Concerning the harassment claim, the majority holds that whether or not Liberto accurately perceived Clubb as a "supervisor," for purposes of vicarious liability, There was sufficient evidence 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." Moreover, Clubb (according to Liberto) repeatedly threatened to use her authority to "to get [her]" and "make [her] sorry." Thus "in gauging the severity of Clubb's conduct, we deem Clubb to have been Liberto's supervisor."

further, the majority holds that a jury could find that the entirety of the slurs and threats could be found severe: "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." The panel notes in particular that the racial slur "porch monkey" is especially "odious" and "pure anathema" to American blacks, and the alleged repeated use of that slur directly against an employee "can properly be deemed to be 'extremely serious.'"

Regarding the retaliation claim, the majority holds that controversial holding in Jordan - that complaining about an isolated incident of harassment is not protected "opposition" to discrimination - must be rejected. Jordan "is at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment ... 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."

The majority also holds that Jordan cannot be squared with intervening Supreme Court authority such as Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), and Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75 (2011), that take a broad view of anti-retaliation protections.

The majority articulates a new circuit standard for determining when harassing activity may prompt a reasonable belief that a hostile work environment is in progress:

"[W]hen 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 ... Of course, a single offensive utterance - e.g., 'simple teasing' or an 'offhand comment[]' ... generally will not create a hostile environment without significant repetition or an escalation in the harassment's severity ... 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' ... The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating."

Finding that Liberto's claim meets this standard, the majority remands Liberto's case for consideration of the There elements of her harassment claim.

The majority and dissenting judges spar over the weight to give the Supreme Court's pronouncement, in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), that the "[m]ere 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." While the dissent regards this language as controlling, the majority observes that the scenario conveyed in that phrase is distinct from an "egregious slur" that is "physically threatening or humiliating."

The majority and dissent also differ over the reformulation of the "reasonable belief" standard for retaliation. The majority denies the dissent's charge that the new standard will "generate widespread litigation" over everyday racial friction in the workplace. "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."

The majority concludes aspirationally:

"[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."

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