Friday, May 15, 2015

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:  On May 7, 2015, Judge King, writing for twelve colleagues, reversed the panel opinion, and reversed Jordan insofar as Boyer-Liberto is inconsistent with JordanSee 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:

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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