Non-Competition "In Any Capacity": Broad Scope Can Sink Your Non-Compete

A recent opinion from the Calvert County Circuit Court in Maryland highlights a common drafting error which can undermine the enforceability of non-compete agreements. In Electronic Security Servs., Inc. v. Higgs, Judge Chandlee ruled that a non-compete which precluded the former employee from working for a competitor “in any capacity” was overly broad and thus unenforceable. See Case No. 04-C-15-304 (Calvert Cnty. Cir. Ct. Md. Sept. 2, 2015) (hereafter “Higgs”). 

In Higgs, a company sued a former employee and the former employee’s new employer, alleging that the employee breached a non-compete agreement and the employee’s employment with the new employer was prohibited by a confidentiality agreement.  The non-compete agreement forbade Mr. Higgs from “compet[ing] directly or indirectly with the company by serving as an officer, partner, director, agent, employee, or consultant with any firm or entities substantially engaged in a business similar to or competitive to the business of the company or an active client of the company in the last 2 years with the company.” It “extend[ed] to the geographic area for the entire states of Maryland and Virginia, The District of Columbia, and any other area that falls within a 150 mile radius of Upper Marlboro.”  Notwithstanding these restrictions, the employee went to work for a competitor in a neighboring county.

The court found the agreement overbroad and unenforceable as a matter of law, noting that it “effectively restricts [the former employee] from obtaining employment from a competitor . . . in any role conceivable.”  The court further held that, even if such a broad restriction were somehow necessary to protect the company’s legitimate business interests, the “need [was] not remotely demonstrated in the complaint.” As a result, the court severed the clause from the non-compete agreement, which “render[ed] the entirety of the agreement void.”

The decision in Higgs reflects a trend in non-compete litigation in favor of scrutinizing the scope of the restrictions to which employees are subject. Several other states have held that language similar to that present in Higgs is overly broad and therefore unenforceable – though some courts have applied blue-penciling rules to save the agreement in a less restrictive form.

In CopyPro, Inc. v. Musgrove, the North Carolina Court of Appeals held that a non-compete agreement that prohibited a former sales representative from working at a competitor in any capacity, “even as a custodian,” was overly broad and unenforceable. 754 S.E.2d 188 (N.C. App. 2014).  In CopyPro the defendant, former employee, Mr. Musgrove, had signed a non-compete agreement that precluded affiliation with a competitor of CopyPro, a purveyor of office equipment systems, for three years following the termination of his employment.  The substantive scope of the agreement was limited to “any business of the type and character of the business engaged in by the Employer at the time of such termination.”  Id. at 192.

During his employment with CopyPro, Mr. Musgrove primarily worked in Pender and Onslow County.  After he resigned, Mr. Musgrove joined a competitor to work in a different county, and he refrained from contacting CopyPro’s customers in the two counties he had covered for CopyPro.  Further, his new employer forbade him from contacting CopyPro’s customers in said counties.

CopyPro nevertheless brought suit against Mr. Musgrove seeking, among other things, a permanent injunction to enforce the terms of the non-compete agreement that he had signed.  CopyPro prevailed in the Superior Court and obtained an injunction preventing Mr. Musgrove, in pertinent part, from working for the allegedly competitive entity.  The Court of Appeals reversed, explaining that “[a]s our decisions reflect, we have held on numerous occasions that covenants restricting an employee from working in a capacity unrelated to that in which he or she worked for the employer are generally overbroad and unenforceable.” CopyPro, 754 S.E.2d at 192 (citing VisionAIR, Inc. v. James, 167 N.C. App. 504, 508-09, 606 S.E.2d 359, 362-63 (2004) (holding that a covenant that prohibited an employee from “own[ing], manag[ing], be[ing] employed by or otherwise participat[ing] in, directly or indirectly, any business similar to” the employer’s business was overly broad and unenforceable)).  The Court went on to hold that “such overly broad restrictions are generally not enforceable in the employer-employee context on the grounds that the scope of the restrictions contained in such agreements far exceeds those necessary to protect an employer’s legitimate business interests.” CopyPro, 754 S.E.2d at 193.

The Court noted that its decision here was distinguishable from prior holdings:

Aside from the fact that the restriction at issue in Precision Walls was to remain in effect for only one year while the noncompetition agreement at issue here will remain in effect for three years, the present record contains no indication that Defendant ever had either the same level of responsibility or the same level of access to competitively sensitive information as the defendant whose conduct was at issue in Precision Walls. Simply put, the record developed in this case, unlike the record developed in Precision Walls, contains no evidence that Defendant had the responsibility for developing client-specific pricing proposals or adjusting prices for competitive reasons or that Defendant was involved in the development and operation of his employer’s bidding or pricing strategies. Although Plaintiff contended in the court below that Defendant might share vital information even if he were hired by a competing business as a custodian, nothing in the present record indicates that Defendant actually possessed sufficiently important information to render him a competitive threat regardless of the position he held with a subsequent employer.”   

See Precision Walls, Inc. v. Servie, 568 S.E.2d 267 (N.C. App. 2002).

Of course, it is well established that non-competes such as those described above are unenforceable in Virginia under the so-called “Janitor Rule.”  In Home Paramount Pest Control Cos., Inc. v. Shaffer, the Supreme Court of Virginia found a non-compete provision in an employment agreement overbroad on its face and therefore unenforceable. 718 S.E.2d 762 (Va. 2011).  Mr. Shaffer, the Plaintiff, was an employee of Home Paramount Pest Control Companies, Inc. In January 2009, he signed an employment agreement containing the following provision:

The Employee will not engage directly or indirectly or concern himself/herself in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services as an owner, agent, servant, representative, or employee, and/or as a member of a partnership and/or as an officer, director or stockholder of any corporation, or in any manner whatsoever, in any city, cities, county or counties in the state(s) in which the Employee works and/or in which the Employee was assigned during the two (2) years next preceding the termination of the Employment Agreement and for a period of two (2) years from and after the date upon which he/she shall cease for any reason whatsoever to be an employee of [Home Paramount].

Id. at 414-415.

The Court explained that, in Virginia, a provision that restricts competition “is enforceable if it is narrowly drawn to protect the employer’s legitimate business interest, is not unduly burdensome on the employee’s ability to earn a living, and is not against public policy.” Id. at 415. The burden of proving each factor rests with the employer seeking court enforcement of the restriction. Id. “When evaluating whether the employer has met that burden, we consider the function, geographic scope, and duration elements of the restriction.  These elements are considered together rather than as three separate and distinct issues.” Id.  In Home Paramount,  the Court held that the provision was unenforceable, noting that “[o]n its face, it prohibits Shaffer from working for Connor's or any other business in the pest control industry in any capacity. It bars him from engaging even indirectly, or concerning himself in any manner whatsoever, in the pest control business, even as a passive stockholder of a publicly traded international conglomerate with a pest control subsidiary. The circuit court therefore did not err in requiring Home Paramount to prove it had a legitimate business interest in such a sweeping prohibition.” Id. at 418.

In NanoMech, Inc. v. Suresh, U.S. Court of Appeals for the Eighth Circuit, applying Arkansas law, affirmed the district court’s decision that a non-compete agreement which prevented the employee from performing any work for any competitor anywhere in the world was overbroad and unenforceable under Arkansas law.  777 F.3d 1020 (8th Cir. 2015) (Colloton, J.).  In NanoMech, defendant, former employee Ms. Suresh, had signed a non-compete agreement before being hired at NanoMech, a company involved in the research and development of nanotechnology.  The non-compete agreement prohibited her from “directly or indirectly” entering into, being employed by or consulting “in any business which competes with the Company” for two years after her departure.  The covenant contained no geographic limitation and did not define “any business which competes with” NanoMech.  Ms. Suresh eventually left NanoMech and joined a competitor as a chemist within the two-year departure term.  NanoMech sued to enjoin her from working there for the remainder of the term of the non-compete and to prevent her from disclosing any of NanoMech’s confidential information.

Generally, a non-compete agreement is enforceable under Arkansas law if the employer has a valid interest to protect, the geographical restriction is not overly broad and a reasonable time limit is imposed. The covenant’s plain language prohibited the employee from working for any competitor of NanoMech, in any capacity, worldwide. The Court rejected NanoMech’s argument that the covenant was reasonable due to the global nature of the business and the employee’s broad access to trade secrets, and refused to enforce the covenant, finding it was overbroad.  The Court held that global non-compete agreements may be permissible if the prohibitions on employee activities are narrowly drawn.

Finally, in Clark’s Sales and Service, Inc. v. Smith and Ferguson Enterprises, Mr. Smith, Defendant, was required to sign a non-compete agreement by employer Clark's Sales & Service, Inc. after several years of employment as a salesman.  4 N.E.3d 772  (Ind. Ct. App. 2014)

The key provisions of the agreement stated that for two years after the employee’s termination from employment, he was prohibited from, in any capacity:

[S]oliciting or providing services competitive to those offered by his employer to any business account or customer who was a business account or customer at any point in time during his employment;” and “working in a competitive capacity with a named competitor of the employer in the state of Indiana, in any city or state in which the competitor conducts business, or to work for any business that provides services similar or competitive to those offered by the employer during the term of his employment, including but not limited to within the state of Indiana, Marion County, the counties surrounding Marion County, or within a 50 mile radius of his principal office with the employer.

Id. at 780.  After the employee resigned and went to go work for one a competitor, the employer filed suit to enforce the non-compete and sought injunctive relief. The Court noted that its Supreme Court has “long held that noncompetition covenants in employment contracts are disfavored in the law, and we will construe these covenants strictly against the employer and will not enforce an unreasonable restriction.” Id.

The Court of Appeals took issue with several parts of the agreement. First, the Court found that the restriction on contacting or serving customers was overbroad and unreasonable because it prohibited the employee from servicing anyone who had been a customer at any point in time during his employment. Id. at 782.  Second, the Court viewed the scope of prohibited activities as too broad because it went beyond the sales job he had with his prior employer and prohibited him from engaging in any service that offered but which he personally never performed during his employment-- i.e., drafted so as to prohibit “seemingly harmless conduct.” Id.   Third, the Court viewed the geographic restriction as “unquestionabl[ly] unreasonable as written”, and stated that the 50-mile restriction alone might have been acceptable, as “it is reasonable for individuals in the community to travel up to 50 miles to visit Clark's.” Id.

If you’re considering having your employees sign a non-compete, you should ensure that the restrictions are narrowly drawn to address legitimate business needs.  In other words, the primary inquiry should be what relationships and knowledge the employee gained while employed by your organization and what legitimate business concerns about the use of the knowledge and relationships you hope to address.  The more you can tailor your non-compete so that it addresses your concerns but isn’t overly broad, the greater the chances that it will be enforceable in most jurisdictions.

While much could be said about the appropriate duration and scope of a restrictive covenant, those are subjects for another day.  What the decisions above make clear is that, in drafting the substantive restrictions in a non-compete agreement – or any other restrictive covenant – you should focus on areas of actual concern.  These might include preventing an employee from working for a specific list of competitors, preventing an employee from performing a specific job or function for entities in similar line(s) of business, and soliciting current customers, vendors, or employees.  As demonstrated above, courts are skeptical of sweeping language which prevents an individual from working for a competitor “in any capacity.”  Including such language, especially in states which do not blue-pencil agreements, raises the very real possibility that the entire clause or agreement will be stricken.  Regardless of a state’s blue-penciling rules, it is never advisable to gamble on how a court might re-write your agreement. Instead, you should use language such as “in any position or performing any function substantially similar to any position held or function performed by the employee during the twelve-month period prior to the termination of her employment.”

Please be sure to visit our website at http://RobertBFitzpatrick.com

Appealing Appellate Advocacy: Twenty-Five Rules

I will be speaking next week on appellate advocacy in employment cases to the Metropolitan Washington Employment Lawyers Association.  In preparation for this speech, I have spent some time speaking confidentially with federal appellate court judges about their views on what makes an effective appellate advocate.  This blog reflects their thoughts, as well as my own experiences.

1.       Know When to Shut Up

Do not try to speak over the judges.  Do not interrupt the judges.  Never start talking until you are sure that the judge has finished.  This is the first rule for two very good reasons, one obvious, and one less obvious.  The obvious reason is that, while simple decorum will not win you your case, rudeness is the surest way to turn an otherwise sympathetic judge against your case.  The less obvious reason for this rule is that you want to be sure that you answer the judge’s question (Rule 4) and that the judge may be trying to help you (Rule 6 “Know Your Friends”).  If you don’t follow this rule, then you cannot follow those.

2.       Moot Your Briefs And Argument

Many attorneys moot their arguments, but relatively few seek input on their briefs from colleagues with no dog in the fight to moot the draft brief.  One judge with whom I spoke was firm in his conviction that best practices demand that you allow briefs to be reviewed by other experienced colleagues.

3.       Moot Your Briefs and Argument AGAIN

Having participated in scores of moots of colleagues preparing to argue their cases, there invariably is more than one moot.  The first moot is usually an intense affair and often identifies substantial additional issues and approaches.  The second (and sometimes third) moot is useful to further refine those points.  In most cases, I am later told that the moots were substantially more difficult than the oral argument itself – which is the goal.

4.       Standard of Review

The proper standard of review is outcome determinative in many cases.  The judges know this, and you can expect the standard of review to play a significant role in many oral arguments, even if it is only “behind the scenes”.  

5.       Civility

Like Rule 1 “Know When to Shut Up”, above, this one emphasizes the need to maintain a proper level of decorum in the courtroom.  More specifically, you should show respect not just for the Court, but also for your opponent.  Do not engage in name calling, sniping, cheap shots, or other personal attacks.  You are here to argue the merits of your case, and you should not allow anything to distract the Judges from those arguments.  If you begin to fling mud, most of it will land on your own arguments.

6.       Answer the Questions

This means that, first, you should listen carefully to the questions (see Rule 1 “Know When to Shut Up”).  If the question is susceptible to a “yes” or “no” response then, in most situations, the first word out of your mouth should be either “yes” or “no”, followed immediately by an explanation.  While you should make sure to return, at the end of your answer, to your planned “talking points”, NEVER do so until you have fully answered the Judge’s question.  When answering, answer directly – do not try to prevaricate or, like a politician, change the subject.  The questions are a window into the judge’s thinking, and if you do not answer them, you can be sure that your opponent will.  If you do not know the answer, do not “wing it.”  Simply state that you don’t know and that you will address the matter in rebuttal.

7.       Know the Record

The record is the beginning and – often – end of every case on appeal.  Live it, learn it, love it – do not play games with it.  While you should, of course, present the record in the light most favorable to your position (see Rule 4 “Standard of Review”), you should not distort or exaggerate it.  Your credibility as an advocate is far more powerful than any temporary advantage you might gain through even well-meaning shading of the facts.  You can be sure that your opponent will seize on any errors or untenable positions as a means of undermining your stronger points, which might otherwise be unassailable.

8.       Know Your Audience

Prior to oral argument, you should observe each judge in action.  In some courts, you will know your assigned panel far enough in advance to view each of the assigned judges in action.  In other courts, you will not receive such advance notice and will have to be content observing a representative sample.  Knowing how each judge thinks will help you tailor your arguments to your audience.  You should research the judges before whom you might appear thoroughly.  This involves reviewing their decisions on the subject (of course) but also reviewing transcripts of prior oral arguments in which they participated.  

9.       Know Your Friends

Successful appellate advocates often spend a great deal of time anticipating hard questions (see Rules 2 and 3), sometimes so much so that they fail to recognize a “softball” when they see one.  Oftentimes oral argument is used by the judges not as a means of questioning you, but as a means of previewing their own arguments to their colleagues.  When a friendly judge hands you an easy question, be prepared to knock it out of the park.  

10.   You Are Not Funny

Yes, I mean you.  Unless you are a successful stand-up comedian (in which case, why are you still practicing law?), do not attempt to have a sense of humor in oral argument.  Even if a judge makes a humorous comment or joke, do not be tempted to join in.  Most likely any attempt at humor will fall flat and, even if it does not, it inevitably cheapens the points you are trying to make.  You want the judges to view your performance as one of studious logic, not rhetoric (see Rule 19).

11.   Review of Jury Verdicts

Increasingly, the appellate courts are called on to review jury verdicts.  In such a case, you should learn your jurisdiction’s law on the scope of review in such cases (see Rule 4).

12.   Review of Jury Instructions

Jury instructions can sink your boat.  To reverse the lower court, you will need to create a clear record in the jury charge session.  That session can often be intense and fast paced.  Thorough preparation is necessary if you are to have any hope of creating a clear record for appeal.  To the extent possible, you should try to anticipate the language which your opponent will request, and your objections thereto.

13.   The First Sixty Seconds

First impressions matter.  We often form snap judgments about the effectiveness of professionals in an astoundingly short period of time (perhaps even as little as sixty seconds).  You should make sure that your first impression is a good one.  The first sixty seconds of you argument should be carefully rehearsed to provide the judges with a good impression, as well as a clear, concise, and persuasive statement of your case, as well as a roadmap to the key points you will address.  This will help the judges understand the points you make later in the argument, and will also allow them to ask more effective questions, which will, in turn, allow you to use your time more effectively (see Rule 6 “Answer the Questions”).  A final reason to carefully plan the first sixty seconds of your argument is that it is the one portion of the argument over which you have the most control.  Once the questions start coming, it can be difficult for even a seasoned advocate to control the direction of the dialogue.

14.   Win the Battle – But Don’t Lose the War

While we, as advocates, are bound to zealously seek the best interests of our clients, you will nevertheless need to keep at least half an eye on the implications of your position for future cases.  There are two principal reasons for this.  First, especially if your client is a “repeat player” in litigation, how they win can sometimes be just as – if not more – important than whether they win.  A victory which results in a precedent that might haunt your client for decades to come is not a victory.  Second, the judges will certainly be interested in implications of your position for future cases – and so you must be prepared to explain what those implications are. 

There are several common issues which arise when discussing the future implications of a ruling, some of which are addressed below.

a.       The “Sluice Gate” Argument

The ruling will open the “sluice gates” of litigation, bogging the courts down in an endless quagmire of meaningless, and purportedly unresolveable, legal issues. 

As the plaintiff-appellant, or as plaintiff-appellee, you will need to be prepared to respond to this argument thoroughly with relevant facts.  Particularly useful in this regard can be examples of similar changes made by past precedent, or rules similar to the one which you are propose, which did not lead to a flood of litigation.

b.      Burden on Taxpayers

The ruling will so increase the costs of administering some governmental function that it would noticeably burden the taxpayers.  

Again, you should be prepared with law and facts to respond to this argument.  In this area, particularly, it may be that journals and other relevant literature might be used in your brief and argument to bolster your position.  As always, when using such sources (and especially statistics), you should be thoroughly familiar with the opinions of your court regarding the relevance and usage of such evidence in an appellate context.

c.       The “Anti-Business Climate” Argument

The ruling will so offend the business community that they will pack up shop and move somewhere else.  

One retort to this argument can be the simple fact that the District of Columbia is a vibrant business community.

15.   Do Not Exaggerate (It Would Be The End of the World)

The most persuasive aspect of your presentation is not your arguments – it is your credibility.  The moment that you are caught exaggerating the record (which you should know cold – see Rule 7) or the law, you will lose that credibility with the panel.  

16.   Counsel’s Table

This is one rule where there was some disagreement.  My own experience, and those of some individuals with whom I have spoken, is that having anyone sit with you at the counsel’s table is, at best, a distraction.  Others, however, have indicated that an assistant who can pass brief notes is not a meaningful distraction, and that judges understand that few advocates possess the level of recall needed to effectively “go it alone”.  

That said, there was one point of agreement – leave your client at home.  Lawyers whose clients are in attendance may feel the need to grandstand to impress their clients – which can only detract from the quality of their arguments.  Your client is free to review the transcript later or even listen to the argument contemporaneously in jurisdictions where that option is available.

17.   Framing the Appeal

Returning to the suggestion that you moot your briefs (Rules 2 and 3), you should also moot the nature of your appeal.  What are the issues in the lower court which you can win on, what if done wrong, can be a basis for reversal?

18.   Follow the Rules

Details matter.  You should know the rules of the Court and follow them scrupulously.  This applies not only to crucial procedural issues, but also to the minutiae of font size, pagination, and required disclosures.  Disregard the rules at your peril.

It is worth emphasizing that your briefs should be letter-perfect – no typos.  Not only will typos distract the judges from your argument, but they also demonstrate a lack of care that may make the judge question the amount of attention paid to the substance of your argument.

19.   No Rhetoric

You should rely on facts and law in your argument.  Leave the bloviating at home.  The judges are neither your client nor a jury, and they are unlikely to be swayed by rhetoric. As with other rules here, the simple fact is that rhetoric is a distraction from, and cheapens, your argument.  

20.   Have a Conversation

Look the judges in the eye when you are speaking.  Do not be captive to your notes, and instead focus on paying attention to the judges, identifying their concerns, and addressing them.  If you must take notes to the podium, keep them brief, and general – a reminder of your roadmap, not a straightjacket.

21.   Dress to Blend In

Sometimes the squeaky wheel gets the grease – but in Court, the nail that sticks up gets pounded down.  You should dress professionally and in a manner that does not draw attention to yourself.  Anything that draws attention to you distracts from your argument.

22.   Listen to What is Troubling the Judges

This is part and parcel with knowing when to shut up (Rule 1) and having a conversation (Rule 20).  The most important information you get during oral argument comes from the judges themselves.  The questions will tell you what they view as important – or irrelevant – to your matter.  They may also provide clues into internal disagreements on the panel.  A wise advocate listens carefully and is familiar enough with her arguments to tailor them on the fly to address what is on the judges’ minds.

23.   Tell a Compelling Story

Those first moments are your chance to encapsulate what this case is all about.  Tell that story in just a few sentences – and make it compelling!

24.   Think Like a Defense Lawyer

As an employee-side lawyer, you can become a victim of the syndrome of talking to yourself.  Instead, you must think like the other side – management.  You actually can be a better advocate for management because you are intimately familiar with all of your weaknesses – especially after mooting your briefs and arguments twice (see rules 2 and 3).  Ask yourself the hard questions, and prepare the answers.

25.   Know the Defense Cases Better than They Do

Read their cases and be prepared to address them.  If possible, explain how they support your own position.

 


Please be sure to visit our website at http://RobertBFitzpatrick.com

A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible

Defense counsel, during the course of taking plaintiff’s deposition in an employment case, extracts damning admissions.  The defense, relying on those admissions.  In opposition, Plaintiff submits his/her own affidavit addressing and attempting to moderate, qualify, or deny the damning admissions.  Defense asserts that Plaintiff’s affidavit is a so-called “sham” affidavit.  Plaintiff’s counsel argues that it merely “clarifies” the plaintiff’s deposition testimony and should thus be considered.

Sound familiar?

Or, Defendant moves for summary judgment, and Plaintiff files an affidavit attempting to establish disputed material facts.  Defendant says that plaintiff’s affidavit is self-serving.  Plaintiff asserts that all testimony by parties is self-serving, and that her/his self-serving affidavit is no different, and should be considered.

Sound familiar?

How do the courts approach these issues? 

1.      Sham Affidavits

The first example above demonstrates what is sometimes called a “sham” affidavit.  The Fourth Circuit, in Barwick v. Celotex Corp., described the “sham affidavit” rule as follows: [a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of plaintiff’s testimony is correct.”  736 F.2d 946, 960 (4th Cir. 1984).  Rather than submit such an issue to the factfinder for determination, the Fourth Circuit held that it was appropriate to strike the affidavit.  Id.  Similarly, in Perma Research & Dev. Co. v. The Singer Co., the Second Circuit held that a party cannot create “sham issues of fact” to defeat summary judgment by contradicting earlier deposition testimony in a subsequent affidavit.  410 F.2d 572, 578 (1969); see also Radobenko v. Automated Equip. Co., 520 F.2d 540 (9th Cir. 1975) (“sham issues…should not subject the defendants to the burden of a trial”). 

More recently, however, courts have limited the “sham affidavit” rule to situations where an affidavit seeks to flatly contradict earlier deposition testimony.  In Strickland v. Norfolk S. Ry. Co., the Eleventh Circuit held that it is only appropriate to disregard an affidavit as a sham when “there [is] no way” that conflicting statements could be read together but that “[w]here a fact-finder is required to weigh a deponent’s credibility, summary judgment is simply improper.”  692 F.3d 1151, 1161-62 (11th Cir. 2012).  Similarly, in Kennett-Murray Corp. v. Bone, the Fifth Circuit explained that “a district court must consider all the evidence before it and cannot disregard a party’s affidavit merely because it conflicts to some degree with an earlier deposition.”  622 F.2d 887, 893-94 (5th Cir. 1980).

In other words, counsel trying to explain her client’s deposition testimony should be careful not to outright contradict that testimony, at the risk of having the affidavit labeled a “sham”, and vulnerable to a motion to strike.  Absent such a flat contradiction, however, many courts are inclined to permit any issues of credibility proceed to the factfinder.

2.      Self-Serving Affidavits

More commonly defense counsel will object to a plaintiff’s affidavit as “self-serving” in an attempt to persuade the trial court to exclude it from consideration on summary judgment.  The appellate courts have soundly rejected this approach with increasing finality.  The Seventh Circuit has been particularly vocal on this issue.  For example, in Widmar v. Sun Chemicals Corp., the Seventh Circuit reprimanded recalcitrant lower courts, stating “[w]e remind district courts of our attempts to rid our circuit’s opinions of language critical of the ‘self-serving’ affidavit.”  772 F.3d 457 (7th Cir. 2014).  The court went on to state:

We hope this discussion lays to rest the misconception that evidence presented in a 'self-serving' affidavit is never sufficient to thwart a summary judgment motion. Provided that the evidence meets the usual requirements for evidence presented on summary judgment  including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial  a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts."

Id. at 460, n.1.  The prior year the Seventh Circuit, in Hill v. Tangherlini, expressly overruled some fifteen of its precedents “to the extent that they suggest a plaintiff may not rely on ‘self-serving’ evidence to create a material factual dispute[.]”  724 F.3d 965, 967 n.1 (7th Cir. 2013).  In recent years, the Seventh Circuit has repeated its rule regarding “sham” affidavits on many occasions.  See Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010), quoted in Navejar v. Iyiola, 718 F.3d 692, 69798 (7th Cir. 2013) (reversing summary judgment based on error discounting partys affidavit as self-serving); accord, Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 63132 (7th Cir. 2009); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). 

Other circuits have reached a similar conclusion to that of the Seventh Circuit.  See Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1046 (8th Cir. 2003) (Holding that “[Plaintiff’s] testimony [at deposition] is sufficient for a jury to find that [Defendant’s] proffered nondiscriminatory reason for not hiring him is pretextual.”); U.S. One Parcel of Real Property, 904 F.2d 487, 492 (9th Cir. 1990) (self-serving declaration can be used to survive summary judgment if it is not conclusory); Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 32021 (3d Cir. 2014).  In Price v. Time Inc., the Eleventh Circuit succinctly stated that: “Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving[.]”  416 F.3d 1327, 45 (11th Cir. 2005).  In Feliciana v. City of Miami Beach, a criminal case, the Court elaborated that:

[Defendant’s] sworn statements are no more conclusory, self-serving, or unsubstantiated by objective evidence than the [police] officers’ assertions…as a general principle, a plaintiff's testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possible been observed or events that are contrary to the laws of nature.

707 F.3d 1244, 1252-53 (11th Cir. 2013). 

Despite the trend towards recognition that “self-serving” affidavits are perfectly admissible, and indeed capable of defeating a motion for summary judgment evening standing alone, many courts continue, without analysis, to strike such affidavits from the record. Hopefully, armed with the arguments and cases herein, practitioners will have better luck in the future in those courts.

Please be sure to visit our website at http://RobertBFitzpatrick.com

Derivative Sovereign Immunity: Next Supreme Court Term’s Bombshell?

On May 18, 2015, the Supreme Court granted certiorari in Campbell-Ewald Co. v. Gomez, 14-857, 191 L. Ed. 2d 977 (2015).  This case, to be decided next term, has been much ballyhooed because of the first two issues which it presents, which are:

1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim?
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified?

As readers will recall, the Court, in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), did not resolve these very important issues for not only wage and hour litigation, but all class action litigation. 

Lost in the hype of this case is the third issue which the Court took, which is:

1. Whether the doctrine of derivative sovereign immunity, recognized in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940) for government contractors is restricted to claims arising out of property damage caused by public works projects? 

The Yearsley derivative sovereign immunity doctrine has been little-used since 1940.  And, it appears, never in employment cases.  But, could the Court’s decision next term expand the doctrine such that it might have application in employment cases?  Obviously, we shall see. 

Here is some quick history.  Campbell-Ewald is a Telephone Consumer Protection Act case.  See 47 U.S.C § 227 et seq.  The Federal Courts are swamped with these cases see, e.g. James G. Snell, Carlos P. Mino, “Telephone Consumer Protection Act Cases Are on the Rise”, Bloomberg BNA (Feb. 14, 2013) (available at: http://www.bna.com/telephone-consumer-protection-act-cases-are-on-the-rise/); David N. Anthony, et al., “Flood of TCPA Claims Expected in Federal Courts” Troutman Sanders (Jan. 24, 2012) (available at: http://www.troutmansanders.com/flood-of-tcpa-claims-expected-in-federal-courts-01-24-2012/). 

In Campbell-Ewald, that company (hereinafter C-E) issued a request for proposal to execute a wireless advertising program for its client, the United States Navy’s recruitment arm. C-E’s goal was to recruit some 38,000 sailors.  MindMatics, LLC, responded to C-E’s proposal request.  Thereafter, C-E made a PowerPoint presentation to the Navy Recruiting Command (NRC), which included a text message proposal from MindMatics to deliver a “Navy-branded SMS text direct mobile ‘push’ program to the cell phones of 150,000 Adults aged 18-24 from an opt-in list of over 3 million.”  2013 U.S. Dist. LEXIS 34346 at *6.   C-E was required to obtain NRC’s approval to proceed.  The Navy approved the text message proposal, and MindMatics sent the text messages to potential Naval recruits.  

Plaintiff Gomez received a text message, and filed a putative nationwide class action under the TCPA against C-E.  The TCPA provides for small statutory damages - $500 per violation, which can be trebled for willful and knowing violations – for unauthorized messages.  47 U.S.C. § 227(b)(3).  Gomez sought damages for the alleged TCPA violation on an individual and class-wide basis, seeking hundreds of millions of dollars on behalf of the class.  In the district court, C-E argued that Gomez’s claim failed as a matter of law because, insofar as the Navy is immune from liability under the TCPA, C-E is also immune as a result of derivative sovereign immunity.  Gomez v. Campbell-Ewald Co., 2013 U.S. Dist. LEXIS 34346, 2013 WL 655237 (C.D. Cal. Feb. 22, 2013). In short, because the Navy cannot be sued, C-E cannot be sued. 

Relying on Yearsley, C-E argued that, inasmuch as it acted on behalf of the Navy, it is immune under the Yearsley doctrine.  In Yearsley, the Supreme Court held that if “[t]he authority to carry out the project was validly conferred…there is no liability on the part of the contractor for executing [the Government’s] will.”  Yearsley, 309 U.S. at 20-21.  An agent is liable under Yearsley only if “he exceeded his authority, or that [the authority] was not validly conferred.”  Id. at 21; see also Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4^th Cir. 2000) (it is “well-settled law that contractors and common-law agents acting within the scope of their employment for the United States have derivative sovereign immunity”). 

The lower court granted C-E’s motion for summary judgment based on the Yearsley argument, holding C-E, acting as a Navy contractor, is immune from liability under the doctrine.  On appeal, the Ninth Circuit reversed, 768 F.3d 871 (9th Cir. 2014).  In an opinion written by Judge Benavides, a senior Fifth Circuit Judge sitting by designation, the Court held that Yearsley is not applicable to the facts of this case, holding that Yearsley established a narrow rule regarding claims arising out of property damage caused by public works projects.  The Ninth Circuit distinguished Campbell-Ewald’s facts from Yearsley on the ground that in Yearsley, the contractor’s work was in accordance with an express congressional directive that resulted in an unconstitutional taking of property and that “the Government has impliedly promised to compensate the plaintiffs, and has afforded a remedy for its recovery by a suit in the Court of Claims.”  309 U.S. at 21-22. 

The Ninth Circuit noted that in the seventy-year history of the Yearsley doctrine, it had apparently never been invoked to preclude litigation of a dispute like the one before the Court.  Indeed, the Court noted that the defense had rarely been allowed in the Ninth Circuit, and only in the context of property damage resulting from public works projects.

The petition for certiorari, which was granted, argues that the Ninth Circuit’s decision fundamentally misconstrues and unduly limits the doctrine of Sovereign Immunity.  Petitioner argued that Yearsley establishes a general rule that government contractors are immune from liability for performing duties which are within the scope of their lawfully delegated authority.  In short, what matters is whether the contractor is acting within the scope of validly conferred authority in undertaking the project. 

So, the Supreme Court will now presumably decide how narrow or expansive the derivative sovereign immunity doctrine may be.  If the Court adopts the district court’s expansive interpretation, one can contemplate circumstances in the employment arena where federal, and possibly also state, contractors in employment cases can assert the defense.  Some examples which spring to mind include disparate impact claims based on an employment test administered by a contractor at the behest of the Government; claims arising from the payment by a contractor of wages pursuant to the Government’s command which run afoul of federal wage and hour laws; and discrimination claims arising from hiring quotas arguably imposed by the government.  The federal contractor bar will be watching this case and ready to advise their clients on how, in the proposal process and in the issuance of task orders, contractors might create a paper trail of government approval and hence, depending on the outcome of C-E, immunity for their contractor clients.

By about this time next year, we should have answers to some of these questions.

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Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision

On May 7, 2015, the Fourth Circuit issued an en banc decision in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 U.S. App. LEXIS 7557 (4th Cir. May 7, 2015), the latest decision in a battle which has enveloped the Fourth Circuit and the District of Maryland for over ten years.  The story is long and complex, and may not yet be over, as, presumably, Fontainebleau Corp. will file a petition for certiorari with the Supreme Court. 

Here are the basic facts in Boyer-Liberto:

1. The plaintiff, Ms. Reya C. Boyer-Liberto, an African-American woman, worked as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland.
2. Plaintiff alleged that within a single twenty-four hour period she was called a “porch monkey” twice, and threatened with termination.
3. Although it is unclear whether the harasser, Ms. Clubb, had supervisory authority, she did have the “ear” of Defendant’s owner, and indicated that she could cause him to terminate Plaintiff.
4. When she reported these incidents of racial harassment, she was terminated by the owner of Defendant.

In the United States District Court for the District of Maryland, Judge James K. Bredar granted Defendant’s motion for summary judgment on all counts.  In so doing, Judge Bredar relied heavily on the Fourth Circuit’s opinion in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  As to Plaintiff’s claim of hostile work environment discrimination, Judge Bredar explained that: “the two incidents of use of a racial epithet…simply do not comprise either pervasive or severe conduct, however unacceptable they are[,]” refusing to “engage in speculation about what might have occurred if [Plaintiff] had had a substantially longer tenure [at Defendant].”  See Boyer-Liberto v. Fontainebleau Corp., No. JKB-12-212, 2013 U.S. Dist. LEXIS 49398, 2013 WL 1413031 at *11 (D. Md. April 5, 2013).  Similarly, Judge Bredar dismissed Plaintiff’s claim for retaliation, reasoning that “no objectively reasonable person could have believed that [Plaintiff’s work environment] was, or was soon going to be, infected by severe or pervasive racist, threatening, or humiliating harassment” and that, as a result, “[Plaintiff] lacked an objectively reasonable belief that she was actually being subjected to unlawful harassment…[and that] the absence of an objectively reasonable belief…defeats the first element of the prima facie case[.]”  Id. at *15 (internal quotations omitted). 

On appeal, a panel of the Fourth Circuit affirmed Judge Bredar’s decision, with Chief Judge Traxler dissenting in part.  The panel’s opinion was authored by Judge Niemeyer, the author of the opinion in Jordan v. Alternative Resources Corp., on which Judge Bredar heavily relied, but both Judge Shedd and Chief Judge Traxler wrote separately.  In his opinion, Judge Niemeyer held that

Viewing the facts of the summary judgment record, we conclude that Liberto has not presented evidence such that a reasonable juror 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. Particularly important is the fact that Liberto points to only two conversations, on consecutive days, in which Clubb called her a "porch monkey," both of which arose from a single incident at the Clarion. Our cases have made it clear that [u]nlike other, more direct and discrete unlawful employment practices, hostile work environments generally result only after an accumulation of discrete instances of harassment.

…

Finally, the analysis of the hostile work environment claim that we conducted earlier in this opinion tends to confirm the absence of an objectively reasonable belief that a violation had occurred. In the circumstances of this case, if no objectively reasonable juror could have 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.

…

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.

Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 350, 356-360 (4th Cir. 2014).  While concurring in the affirmance, Judge Shedd wrote separately to state the following: “under our precedent, as a matter of law the facts of this case do not demonstrate a hostile work environment.  Based on this Court’s decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), I agree…that summary judgment should also be affirmed on the retaliation claim.”  Id. at 360-61 (Shedd, J., concurring).

Although Chief Judge Traxler concurred that Plaintiff had “not demonstrated a hostile environment”, he dissented as to the Court’s affirmance of Judge Bredar’s grant of summary judgment on Plaintiff’s retaliation claims, stating:

I agree with the majority that, under our existing precedent, particularly Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), the conduct Liberto complained of as a matter of law did not rise to the level of actionable harassment. However, I part ways with the majority on the question of whether that determination necessarily resolves the retaliation claim as well. 

…

In determining whether that standard is met here, I believe it is important to recognize that even "[a] single, sufficiently severe incident . . . may suffice to create a hostile work environment." Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579, 404 U.S. App. D.C. 291 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (concluding that supervisor's statement to African-American employee, "Get out of my office nigger," was sufficient by itself to constitute an actionable hostile work environment).

…

 Here, in contrast [to the facts of Jordan], Clubb called Liberto herself a porch monkey and did so in the context of angrily threatening to speak with her friend, the hotel owner, to get Liberto fired. Also in contrast to Jordan, Clubb's use of the epithet was not a single, isolated occurrence, as she called Liberto the very same name in the very same threatening context the very next day. Particularly in light of these significant differences, I believe that Liberto could have reasonably believed that Clubb's conduct was actionable.

…

I share in the sentiment Judge King expressed so well in his dissent in Jordan…[and] [l]ike Judge King, I cannot accept that an employee in circumstances like these can be forced to choose between her job and her dignity. See id. at 356. For these reasons, I respectfully dissent from the affirmance of the summary judgment against Liberto on her retaliation claims.

Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 350, 356-360 (4th Cir. 2014) (Traxler, C.J., concurring in part, dissenting in part).

Thereafter, a petition for rehearing en banc was filed.  The petition was granted on July 1, 2014, at which time the panel opinion was vacated.  See Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2014 U.S. App. LEXIS 12711 (4th Cir. July 1, 2014).  The full court heard argument on the case on September 18, 2014 (Available at: http://coop.ca4.uscourts.gov/OAarchive/mp3/13-1473-20140918.mp3).  On May 7, 2015, Judge King, writing for twelve colleagues, reversed the panel opinion, and reversed Jordan insofar as Boyer-Liberto is inconsistent with Jordan.  See Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 U.S. App. LEXIS 7557 (4th Cir. May 7, 2015).

Judge King’s opinion contains three principal holdings: 1) “an isolated incident of harassment, if extremely serious, can create a hostile work environment”; 2)  “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”; and 3) 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.”  See Id. at *3.  In holding that Plaintiff was entitled to take the issue of whether a hostile work environment existed to the jury, Judge King reasoned that:

[A]n isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.

…

 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. Simply put, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character.

…

To resolve [the issue of whether Clubb’s conduct was sufficiently severe to create a hostile work environment] 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. 

…

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…[and] [t]hat 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.

…

[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.

…

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." 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.

Id. at *28-*37 (internal citations and quotations omitted).  Similarly, Judge King held that Plaintiff presented a triable issue of fact as to whether she suffered illegal retaliation, explaining:

[T]he 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.

…

[R]ather 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 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."

…

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.

…

[A]n 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 judicial remedy he might have."

One of the most interesting dicta in Judge King’s opinion is contained in Footnote Six.  After holding that an employee will be held to have a reasonable belief that a hostile work environment is occurring if the isolated incident is “physically threatening or humiliating”, Judge King addressed how future courts should handle the eventuality where the isolated incident is merely “offensive”, but might be repeated sufficiently enough in the future to meet either the “severity” or “pervasiveness” test.  In Footnote Six, Judge King states that the Supreme Court’s decision in Clark County v. Breeden, 532 U.S. 268 (2001) does not necessarily preclude an argument that a complaint regarding an isolated incident which is “merely offensive” in all circumstances is not protected activity.  Instead, Judge King suggests that a plaintiff can reasonably believe that a single incident which is “merely offensive” created a hostile environment.  Judge King states: “The Court [in Clark County] did not consider whether the plaintiff could have reasonably believed that a hostile work environment, even though not fully formed, was in progress.”  Unfortunately for those laboring in the employment litigation vineyards, Judge King and his colleagues did not articulate how one is to determine whether or not a complaint in such circumstances is protected activity.  There does not appear to be a hint in the opinion as to how and where the lower courts are to draw the line between protected activity and non-protected activity where an individual is retaliated against because they complained about an isolated incident which is merely offensive, but one that they assert was “in progress” towards ultimately culminating in a hostile work environment. 

Judge Wilkinson, joined by Judge Agee, concurs and dissents, adding two more votes to reversal as to the retaliation count, but agreeing with the lower court, and the panel’s, determination that there was no hostile work environment.  Judge Wilkinson, with his trademark eloquence, summarizes his thinking as follows:

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.

Boyer-Liberto, 2015 U.S. App. LEXIS 7557 at *59-60 (Wilkinson, J., dissenting).

Judge Niemeyer, very much alone, dissents.  None of his colleagues join in his dissent.  Thus, after writing the opinion in Jordan, the later opinion in Jordan, attempting to justify a 5-5 denial of rehearing in Jordan, and the panel’s opinion in Boyer-Liberto, Judge Niemeyer was relegated to being a lone dissenter.  In that dissent, Judge Niemeyer repeatedly assaults the majority’s reading of the law.  Judge Niemeyer begins by accusing the majority of misreading a key passage in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), in which the Supreme Court held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”  Judge Niemeyer reasons that:

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" -- 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."

Judge King, writing for the majority, responds that:

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,'"…[s]trikingly, 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,'" 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, without even attempting to reconcile that proposition with its reading of Faragher.

Judge Niemeyer further asserts that:

 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

Judge King responds that:

[T]he 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," and at another point actually omitting the phrase "which engenders offensive feelings in an employee[.]" 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."

The long and tortured history of this argument started over a decade ago in another Maryland Federal District Judge’s courtroom in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  The facts in Jordan can be summarized as follows:

1. Plaintiff was an African-American man employed by Defendant.
2. During a broadcast regarding the arrest of two African-American men accused of being snipers and killing ten individuals in Maryland, Virginia, and the District of Columbia, an individual watching the report with Plaintiff stated “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f—k them.” 
3. Jordan complained about this statement, and was fired one month later.

The lower court held that “Plaintiff has not, as a matter of law, alleged that his complaint opposed a discriminatory practice in the workplace. Accordingly, the retaliation claims in his original complaint are insufficient, and will be dismissed.”  See Jordan v. Alternative Resources Corp., No. DKC 2004-1091, 2005 U.S. Dist. LEXIS 5279 (March 30, 2005). 

A divided panel of the Fourth Circuit affirmed this decision on May 12, 2006.  Judge Niemeyer, writing for the majority was by Judge Widener, who later died on September 17, 2007, and held as follows:

While Farjah's comment to the television on October 23, 2002 (or October 24) was unacceptably crude and racist, it was an isolated emotional response directed at the snipers through the television set when Farjah heard the report that they had been arrested. Because the remark was rhetorical insofar as its object was beyond the workplace, it was not directed at any fellow employee. Moreover, it was a singular and isolated exclamation, having not been repeated before or after October 23, 2002. Jordan does not and cannot allege in his complaint that Farjah's comment altered the terms and conditions of his employment. Based on all that Jordan knew, Jordan reasonably concluded that the remark was inappropriate and should not have been made. And while we agree with Jordan's sentiment, we conclude that such an allegation is a far cry from alleging an environment of crude and racist conditions so severe or pervasive that they altered the conditions of Jordan's employment with IBM or ARC. 

And, Judge King dissented, stating in dissent:

[A]s a matter of law, I do not subscribe to the majority's view that, pursuant to Navy Federal, an employee lacks Title VII protection for reporting racially charged conduct, unless he has "a reasonably objective belief that it will continue or will be repeated." See ante at 10. On this point, the majority implies that the employee cannot meet that burden without allegations that "a plan was in motion to create [a hostile work] environment." Id. This position is simply incorrect, for at least two reasons. First, requiring an employee to show that a hostile work environment was being planned imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment. Second,Navy Federal concerned an employee who had opposed a discrete act that itself contravened Title VII, and we had no reason to consider the circumstances under which an employee might reasonably believe that Title VII was being violated by a cumulative unlawful practice, such as a hostile work environment.

A petition for rehearing en banc was filed and, most interestingly, the judges eligible to vote split five to five.  There being no majority in favor of reconsideration en banc, after a petition for certiorari was denied, the litigation in Jordan ended.  Interestingly, when the Court split five to five on the question of reconsideration en banc, Judge Niemeyer felt compelled to write an opinion attempting to justify, yet again, his panel opinion.  See Jordan v. Alternative Res. Corp., 467 F.3d 378 (4th Cir. 2006).  Even though four other judges (Judges Widener, Shedd, Duncan, and Wilkinson) had joined Judge Niemeyer in voting against rehearing en banc, none of them joined in his opinion.  Of course, two of them would go on to vote with the majority in Boyer-Liberto.  Judge King, joined by four colleagues (Chief Judge Wilkins, and Judges Traxler, Michael, and Gregory) dissented.  In dissent, Judge King stated:

the panel majority has concluded that, when an employee complies with Ellerth and Faragher in promptly reporting racially charged conduct, he is stripped of his protection from retaliation under Title VII. Such a construction of Title VII, which penalizes an employee for complying with the controlling mandate of Ellerth and Faragher, is inconsistent with the Court's view of Title VII. In its recent White decision, the Court instructed that we must construe Title VII's anti-retaliation provision broadly, so as to further "the . . . provision's primary purpose" of "maintaining unfettered access to statutory remedial mechanisms." Nevertheless, the panel majority, without addressing White's holding, has construed Title VII's anti-retaliation provision so narrowly that most employees who seek its protection will have their access to statutory remedial mechanisms either fettered or barred altogether.  Our Court has thereby created an untenable Catch-22 situation for such employees.

Id.; see also Indraneel Sur, “How Far do Voices Carry: Dissents From Denial of Rehearing En Banc”, 2006 Wisc. L. Rev. 1315 (2006) (available at: http://hosted.law.wisc.edu/lawreview/issues/2006-5/sur.pdf)

The petition for certiorari was denied on April 16, 2007.  Since being handed down Jordan has been cited in over three hundred decisions, and nearly as many journals, law reviews, and other secondary sources..

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