Filed: May 13, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1473 REYA C. BOYER-LIBERTO, Plaintiff - Appellant, v. FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel; LEONARD P. BERGER, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:12-cv-00212-JKB) Argued: January 29, 2014 Decided: May 13, 2014 Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit Judges.
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1473 REYA C. BOYER-LIBERTO, Plaintiff - Appellant, v. FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel; LEONARD P. BERGER, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:12-cv-00212-JKB) Argued: January 29, 2014 Decided: May 13, 2014 Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit Judges. A..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1473
REYA C. BOYER-LIBERTO,
Plaintiff - Appellant,
v.
FONTAINEBLEAU CORPORATION, trading as Clarion Resort
Fontainebleau Hotel; LEONARD P. BERGER,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cv-00212-JKB)
Argued: January 29, 2014 Decided: May 13, 2014
Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Shedd joined. Judge Shedd wrote a
separate concurring opinion. Chief Judge Traxler wrote an
opinion concurring in part and dissenting in part.
ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant. Harriet Ellen Cooperman,
SAUL EWING LLP, Baltimore, Maryland, for Appellees. ON BRIEF:
Brett S. Covington, SAUL EWING LLP, Baltimore, Maryland, for
Appellees.
NIEMEYER, Circuit Judge:
Reya C. Boyer-Liberto, an African-American woman, commenced
this action against her former employer, the Fontainebleau
Corporation, trading as Clarion Resort Fontainebleau Hotel, in
Ocean City, Maryland, and its owner, Leonard Berger, for racial
discrimination and retaliation, in violation of Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981. She grounds her
racial discrimination claim on a hostile work environment
allegedly created by two conversations she had with a coworker
about an incident that occurred on September 14, 2010. During
the conversations, which took place on two consecutive days, the
coworker twice called Liberto a “porch monkey.” And she grounds
her retaliation claim on the termination of her employment after
she complained about the statements.
The district court granted the defendants’ motion for
summary judgment, concluding that the conduct was too isolated
to support either of Liberto’s claims.
For the reasons that follow, we affirm.
I
Liberto began working at the Clarion Resort Fontainebleau
Hotel (the “Clarion”) on August 4, 2010. The Clarion is a
typical oceanfront hotel, with several restaurants, bars, a
nightclub, and banquet facilities, and it typically employs 75
2
people in its service department. Liberto began as a morning
hostess in one of the hotel’s restaurants.
According to Richard Heubeck, the Clarion’s Food and
Beverage Director, Liberto “didn’t seem to be happy in [the
morning hostess] position.” He stated that she had difficulty
keeping pace with the job and that it was not a “good fit” for
her. Because Liberto had previously expressed a preference for
other jobs in the hotel, she was allowed to work in other
departments, engaging in serving and bartending, as well as
working banquets. According to Berger, the Clarion’s owner,
Liberto also struggled with these other jobs. As he stated, she
behaved unprofessionally, clashed with other employees,
disregarded Clarion policy, and responded poorly to criticism.
Berger said that because Liberto “had failed at four jobs” and
had failed the Clarion bartending test, he terminated her
employment on September 21, 2010.
During her employment, Liberto interacted with Trudy Clubb,
a longtime employee at the Clarion and a friend of Berger.
Clubb described herself as a restaurant “manager,” reporting to
Food and Beverage Director Heubeck, as well as Mark Elman,
another supervisor. While Clubb’s exact role at the Clarion is
not made clear in the record, Clubb described her job as
“getting things going for the early part of the day, seeing that
the crew is well-equipped and ready to present themselves to the
3
customers, getting the tables ready, getting the buffet . . .
ready, [and] overseeing all the items that need to be done.”
Clubb was not involved in the hiring and disciplining of fellow
employees.
Liberto testified during her deposition that she never
understood Clubb to be a supervisor or manager. Liberto said
that she “was told by [her] co-workers that [Clubb] was just Dr.
Berger’s friend and she was just there to say ‘hello’ and greet
people as a glorified hostess.” She also stated that she was
never told that Clubb was a manager; to the contrary, she was
told that Clubb “did not have the power to . . . make decisions”
and did not have management cards or keys. Liberto stated that
she herself reported to Heubeck and to another manager named
“Jamie.” She acknowledged that she did listen to Clubb, but she
did so only to the extent that she had “to be respectful and
listen to anyone [she] work[ed] with.” While Clubb would
occasionally ask Liberto or other employees to do something,
Liberto testified that “it was not a regular routine . . . for
[Clubb] to instruct[]” other employees, and Clubb did not ever
correct the work that Liberto did.
When Liberto and Clubb were first introduced, Clubb
compared Liberto with another employee, stating, “You look like
Stacy, but Stacy’s nice,” which Liberto took as offensive. But
4
the incident central to this action occurred on September 14,
2010, more than a month after Liberto had been hired.
On the evening of September 14, Liberto was serving drinks
to customers, and one customer ordered a “Hula-Hula,” a drink
that was particularly time-consuming to make. When the
bartender at the Clarion’s primary bar refused to make the
drink, Liberto went through the kitchen to order the drink from
the Clarion’s “pub bar.” While passing through the kitchen,
Clubb called out to Liberto several times, telling her not to
use the kitchen as a shortcut. Liberto did not hear Clubb’s
calls. When Clubb finally got Liberto’s attention, Clubb began
yelling at Liberto for not acknowledging her when she had tried
to get Liberto’s attention. Liberto said that the distance
between the two was close enough that she could “[feel] Clubb’s
breath” and spittle from Clubb’s mouth was hitting her. Clubb
called Liberto “deaf” and said that she was “going to make
[Liberto] sorry.” As the conversation concluded, Clubb called
Liberto a “porch monkey.”
When Liberto went to Heubeck’s office the next day to
complain about Clubb’s conduct, Clubb came in and said to
Liberto, “I need to speak to you, little girl.” The two then
spoke alone outside the office, and Clubb scolded her for
“abandoning [her] station” the previous day. As this meeting
broke up, Clubb again called Liberto a “porch monkey.”
5
Liberto reported the conduct to Nancy Berghauer, the
Clarion’s Human Resources Director, and the two spoke over the
telephone on September 17, 2010. Berghauer made typewritten
notes of the conversation and forwarded them to Berger and
Elman. Elman met with Liberto to discuss the situation and to
ensure that Berghauer’s notes were correct. The next day,
September 18, Heubeck met with Clubb, who denied Liberto’s
allegations. He nonetheless issued her a written warning.
One day prior to Heubeck’s meeting with Clubb, Berger and
Heubeck discussed Liberto’s performance problems, as well as her
conflict with Clubb. During the conversation, Berger observed
that Liberto had substantial performance issues and felt that
the Clarion “should terminate her.” Over the next few days,
before Berger had made a final decision on Liberto’s employment,
he discussed Liberto’s performance with Elman and Berghauer.
When Berger looked at Liberto’s work file, he discovered that
she had failed the Clarion’s bartending test. Elman and
Berghauer both told Berger that “because of [Liberto’s]
complaint, [firing her] could create a situation.” Berger
replied that “there’s not going to be any good time to let her
go. The situation will be there.” On September 21, Berger
terminated Liberto’s employment. He asserted in his deposition
that Liberto’s allegations against Clubb did not play any part
6
in his decision. Moreover, Clubb was not involved in the
decision, only learning of it a week later.
Liberto filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on September 23,
2010, alleging discrimination based on her race and retaliation
based on her engagement in protected activity, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. The EEOC issued Liberto a Notice of Right to Sue,
following which Liberto commenced this action.
In her complaint, Liberto asserted four claims for relief:
two counts of racial discrimination, in violation of Title VII
(Count I) and 42 U.S.C. § 1981 (Count III), and two counts of
retaliation, also in violation of Title VII (Count II) and 42
U.S.C. § 1981 (Count IV).
Following discovery, the defendants filed a motion for
summary judgment. In deciding the motion, the district court
excluded from consideration the “vague” answers to
interrogatories given by Liberto, which were not executed on
personal knowledge and included hearsay. The court did,
however, take as true the testimony in Liberto’s deposition, in
which she described the two conversations in which Clubb called
her a “porch monkey.” The court held that based on the summary
judgment record so defined, the offensive conduct was too
isolated to support Liberto’s claims for discrimination and
7
retaliation. Accordingly, by order dated April 4, 2013, the
court entered judgment in favor of the defendants.
This appeal followed.
II
Liberto contends first that the district court erred in
excluding her answers to interrogatories as part of the summary
judgment record. The court concluded that the answers were not
only “vague as to time, place, and identity of the hearer” but
also were not based on Liberto’s personal knowledge. Liberto
had executed the answers with the oath that they were true “to
the best of [her] knowledge, information and belief.” Moreover,
in the text of the answers themselves, Liberto stated that the
information was “not based solely upon [her] knowledge . . . but
include[d] the knowledge of [her] agents, representatives, and
attorney.” The answers identified 14 other persons who had
knowledge of the relevant facts, as alleged in the complaint.
Liberto nonetheless argues that the language referring to
other persons’ information and her belief was “a boilerplate
disclaimer” that is “commonly used.” She explains, “Obviously,
a lay plaintiff cannot be expected to answer complicated
discovery requests fully and accurately without the benefit of
counsel.”
As the Advisory Committee’s notes to Federal Rule of Civil
Procedure 56 observe, “the very mission of the summary judgment
8
procedure is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Fed.
R. Civ. P. 56 advisory committee’s note (1963 amends.) (emphasis
added). Because the Rule is a mechanism to obviate trial, the
facts forming the basis for a summary judgment must (1) be
material, Fed. R. Civ. P. 56(a); (2) be undisputed, id.; and (3)
be admissible in evidence, Fed. R. Civ. P. 56(c)(2), (4). Thus,
a declarant of facts used to support or oppose a motion for
summary judgment must demonstrate that he or she has personal
knowledge of the facts and is competent to testify to them. See
Fed. R. Civ. P. 56(c)(4); see also Szego v. Comm’r, No. 91-2153,
1993 U.S. App. LEXIS 14645, at *4-5 (4th Cir. June 17, 1993)
(per curiam) (concluding that interrogatory answers were not
properly in the summary judgment record because they were filed
by the defendant’s attorney and not based on the defendant’s
personal knowledge); Williams v. Griffin,
952 F.2d 820, 823 (4th
Cir. 1991) (noting that a verified complaint could be used to
oppose a motion for summary judgment “when the allegations
contained therein [were] based on personal knowledge” (emphasis
added)); Md. Highways Contractors Ass’n v. Maryland,
933 F.2d
1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is
inadmissible at trial, cannot be considered on a motion for
summary judgment”).
9
While it is no doubt true that answers to interrogatories
are routinely given on “knowledge, information and belief,” if a
declarant wishes to use such answers to support or oppose a
motion for summary judgment, she must either state the
information in an affidavit that complies with Rule 56 or
execute the answers to interrogatories on personal knowledge.
In this case, Liberto did neither. Liberto supplied her
answers to interrogatories based not only on her own knowledge,
but also on information she received from others and on her
belief that the information was true. And in this case, the
information was explicitly stated to have been obtained from her
agents, representatives, and attorney. Such evidence certainly
would not be admissible at trial, as it would amount to hearsay,
speculation, or both.
We conclude that the district court did not err in
excluding Liberto’s answers to interrogatories from
consideration as part of the summary judgment record.
III
Liberto next contends that the district court erred in
ruling as a matter of law that the undisputed facts in the
summary judgment record, viewed in the light most favorable to
her, did not demonstrate a hostile work environment, as
prohibited by Title VII and 42 U.S.C. § 1981. She argues that
10
the use of the term “porch monkey” was particularly severe and
humiliating and that, because the duration of her employment was
short, Clubb’s two uses of the term were relatively frequent.
Moreover, she argues, because Clubb was physically close to her
during the first conversation when the term was used, it was
threatening.
The “porch monkey” term that Clubb used was indeed racially
derogatory and highly offensive, and nothing we say or hold
condones it. Nonetheless, we conclude that a coworker’s use of
that term twice in a period of two days in discussions about a
single incident was not, as a matter of law, so severe or
pervasive as to change the terms and conditions of Liberto’s
employment so as to be legally discriminatory.
Title VII makes it unlawful for an employer to discriminate
against an individual with respect to her compensation, terms,
conditions, or privileges of employment because of her race,
color, religion, sex, or national origin. See 42 U.S.C. §
2000e-2(a)(1). And requiring an employee to work in a
“discriminatorily hostile or abusive environment” violates that
provision. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). A hostile work environment exists when “the workplace
is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
11
working environment.” Id. (internal quotation marks and
citation omitted). In making a determination whether an
employer has created an abusive working environment, a court is
required to examine “all the circumstances[, including] the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”
Id. at 22; see also Okoli v. City
of Baltimore,
648 F.3d 216, 220 (4th Cir. 2011).
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.”
Harris, 510 U.S. at 21 (internal quotation marks and citation
omitted). 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.”
Jordan v. Alternative Resources Corp.,
458 F.3d 332, 339 (4th
12
Cir. 2006); see also Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115 (2002) (“Hostile environment claims are different
in kind from discrete acts. Their very nature involves repeated
conduct”). While Clubb’s statements to Liberto were racially
derogatory and highly offensive, as we have noted, they were
singular and isolated, and Liberto has not pointed to any other
specific indicators in the record that Clubb, or any other
employee, made racist or hostile statements to her.
Liberto relies on three cases that, she argues, support her
claim of racial discrimination through a hostile work
environment: Tawwaab v. Virginia Linen Servs., Inc., 729 F.
Supp. 2d 757 (D. Md. 2010); Spriggs v. Diamond Auto Glass, 242
F.3d 179 (4th Cir. 2001); and Ayissi-Etoh v. Fannie Mae,
712
F.3d 572 (D.C. Cir. 2013). None of these cases, however,
advances her argument.
In Tawwaab, an African-American employee at a linen and
laundry service was consistently harassed by his supervisor,
Miller, regarding his race. As the court observed:
Carter alleges that Miller constantly used racial
slurs and profane insults in his presence in reference
to the African–Americans he supervised that included
the terms “dumb,” “stupid,” “motherfuckers,” “black
motherfuckers,” “bastards,” “black bastards,” and
“black Fresh Princes of Bel–Air.” Carter alleges that
Miller did not use this type of invective when
addressing white employees. He specifically
identifies an incident wherein Miller said of Virgil
Wingate, another African–American route sales
representative: “I can’t stand that black
13
motherfucker. I’m going to kick that black bastard’s
ass and drag his motherfucking ass across the fucking
parking lot, black bastard. I can’t stand that
motherfucker.”
* * *
Miller also allegedly made racial jokes in Carter’s
presence about traditional African–American hairstyles
and “ethnic-sounding” names. In addition, Miller kept
a statue on his desk of what Plaintiffs assert is an
African–American golf caddy with the appearance of a
monkey, and that Miller would deliberately place this
statue in front of Carter and other African–American
employees when he would meet with them, as if to say,
“This is what I think of you. You are monkeys to me.”
Id. at 766. In denying the defendant’s summary judgment motion,
the court noted that the plaintiff “identified approximately ten
actionable incidents of harassment that took place between 2005
and 2007” and that several of the incidents were particularly
offensive, involving “at least some kind of physical threat.”
Id. at 778. In contrast, Liberto only refers to two
conversations, about a single incident, occurring on consecutive
days, during which Clubb twice used a racial epithet.
Similarly, in Spriggs, the offensive statements at issue,
which were made by the plaintiff’s supervisor, included nearly
every racist insult one can imagine, including “nigger,” “black
bitch,” “monkey,” and “dumb monkey,” extending repeatedly over
the course of two stints of employment spanning three years.
242 F.3d at 182. In vacating summary judgment entered in favor
of the defendants, the court emphasized the “frequency” of the
14
comments. Id. at 185. Again, that circumstance is not
presented in this case.
Finally, in Ayissi-Etoh, the plaintiff -- an African-
American senior financial modeler -- asked a white supervisor
why he had not received a raise in conjunction with a recent
promotion. Ayissi-Etoh, 712 F.3d at 574-75. In response, he
was told, “For a young black man smart like you, we are happy to
have your expertise; I think I’m already paying you a lot of
money.”
Id. at 575. Several months later, during a discussion
with a more direct supervisor about the plaintiff’s work
responsibilities, the supervisor yelled at him, “Get out of my
office nigger.”
Id. The plaintiff was forced to continue
working with the second supervisor, eventually causing the
plaintiff to have an anxiety disorder and miss work. The
plaintiff brought, inter alia, a hostile work environment claim
and a claim that he was denied a raise because of his race, both
under 42 U.S.C. § 1981. The D.C. Circuit concluded that the
defendant was not entitled to summary judgment on either claim.
Id. at 576-77. Those circumstances, however, are substantially
distinguishable from those in this case. First, as the court in
Ayissi-Etoh noted, the hostile work environment was not
precipitated by a single event, but rather by two independent
statements having ongoing applicability, made by two different
supervisors of the plaintiff, ultimately leading to health
15
problems and directly causing the plaintiff to miss work. Id.
Additionally, the racist comments were made during conversations
directly about the plaintiff’s pay and work assignments -- clear
situations in which the statements “alter[ed] the conditions of
the victim’s employment.”
Harris, 510 U.S. at 521. In
contrast, this case presents statements made by a coworker, that
did not relate to Liberto’s terms of employment and did not have
long-term ongoing consequences.
Liberto has not pointed to any Fourth Circuit case, nor
could she, finding the presence of a hostile work environment
based on a single incident. Compare Jordan, 458 F.3d at 340
(addressing a single racist statement directed in response to a
television news report and made in the presence of plaintiff and
noting that it was “a far cry from alleging an environment of
crude and racist conditions so severe or pervasive that they
altered the conditions of [plaintiff’s] employment”), with
Anderson v. G.D.C., Inc.,
281 F.3d 452, 459 (4th Cir. 2002)
(denying summary judgment where plaintiff was “subjected, on a
daily basis, to verbal assaults of the most vulgar and
humiliating sort”); Conner v. Schrader-Bridgeport Int’l, Inc.,
227 F.3d 179, 196 (4th Cir. 2000) (noting “frequency and
regularity of the unwelcome conduct”); Amirmokri v. Baltimore
Gas & Elec. Co.,
60 F.3d 1126, 1131 (4th Cir. 1995) (“[C]o-
workers abused [plaintiff] almost daily, calling him names like
16
‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir of
Waldorf’”).
Liberto’s hostile work environment claim under 42 U.S.C. §
1981 is governed by the same principles applicable to her
hostile work environment claim under Title VII. See Spriggs,
242 F.3d at 184. And because we conclude that Liberto has not
demonstrated a hostile work environment under Title VII, we
likewise conclude that she has not done so under § 1981. *
IV
Finally, Liberto contends that the district court erred in
dismissing her retaliation claims under Title VII and 42 U.S.C.
§ 1981. She asserts that her employment was terminated because
she complained about Clubb’s “porch monkey” statements. In
*
Defendants also argue that Clubb was not Liberto’s
“supervisor” and therefore that her comments were not imputable
to defendants for purposes of a violation of Title VII or §
1981. See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
They note that Clubb did not have any direct hiring and firing
power over Liberto, pointing to Clubb’s statement that she did
not “make [hiring] decisions. Those [were] made by human
resources and the manager, the other manager.” Moreover,
Liberto conceded that she did not consider Clubb her supervisor.
And when Liberto’s employer learned of Clubb’s offensive
comments, it did admonish Clubb, and no further similar incident
occurred. See
Vance, 133 S. Ct. at 2441 (noting that when a
coworker’s conduct is the basis of a hostile work environment
claim, employer’s liability is based on negligence “with respect
to the offensive behavior”). But because we have concluded that
Clubb’s statements to Liberto did not create a severe or
pervasive hostile work environment, we need not reach whether
Clubb was in fact a supervisor, thus imputing liability to the
Clarion, or whether the Clarion was negligent in how it
responded to Liberto’s complaint.
17
entering summary judgment on this claim, the district court
concluded that she “lacked an objectively reasonable belief that
she was actually being subjected to unlawful harassment.”
Liberto nonetheless argues that rather than assessing whether
she had an objectively reasonable belief of harassment, the
district court, by requiring that the conduct be sufficiently
severe or pervasive, required her to prove actual harassment.
In arguing that her belief was an “objectively reasonable” one,
she relies on the offensiveness of the “porch monkey” epithet.
To demonstrate retaliation, a plaintiff must show that she
was terminated because she engaged in protected activity --
i.e., because she “respond[ed] to an employment practice that
[she] reasonably believe[d] [was] unlawful.” Jordan, 458 F.3d
at 338 (emphasis added). Liberto contends that she had such an
objectively reasonable belief based on Clubb’s two statements
made in relation to the incident on September 14, 2010.
But just as her claim as to an actual hostile work
environment failed as a matter of law, her claim that she had an
objectively reasonable belief that she was complaining about a
hostile work environment fares no better in the circumstances of
this case. The conversations forming the basis for Liberto’s
belief were isolated to one coworker about one incident over two
days. And Liberto concedes that Clubb had not called her by
racial epithets before or after the conversations at issue here.
18
Moreover, Liberto’s relationships with her supervisors and her
other coworkers were free from such epithets.
In addition, when these conversations occurred, Liberto
thought that she was simply being redressed by a coworker, not
her supervisor. When Liberto was asked whether she knew that
Clubb was the restaurant manager, Liberto emphatically testified
that she did not. In response to the follow-up question, “You
never knew throughout your entire employment with the Clarion
that she was a manager?” she responded:
Never. I reported to Jamie, and Jamie, as a matter of
fact, told me not to go to [Clubb] because [Clubb] did
not have the power to do voids or make decisions. I
had to report to Jamie or Richard. And at the time
[Clubb] did not hold any management cards or keys as
Jamie did.
Liberto explained that she would only listen to Clubb as she
would to any other person that she worked with. In these
circumstances, Liberto’s understanding of Clubb’s role lessens
the risk that Clubb’s statements alone caused Liberto to
reasonably believe that Clarion had altered the terms and
conditions of her employment. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 763 (noting that “a supervisor’s power
and authority invests his or her harassing conduct with a
particular threatening character”).
Finally, the analysis of the hostile work environment claim
that we conducted earlier in this opinion tends to confirm the
19
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.
In short, we conclude that Liberto could not have had an
objectively reasonable belief that, in complaining to management
about the two related conversations, she was complaining about
conduct that was unlawful either under Title VII or § 1981.
Liberto points out that under Title VII, she “need not wait
until her work environment is actually hostile and threatening”
before her opposition is protected. She is correct in noting
that where conduct is likely to ripen into a hostile work
environment, the employee’s opposition may be protected before
the hostile environment has fully taken form. See Jordan, 458
F.3d at 340; E.E.O.C. v. Navy Fed. Credit Union,
424 F.3d 397
(4th Cir. 2005). But this case does not present any indicators
that the situation at the Clarion would have ripened into a
hostile work environment. There was no series of events that
were “set in motion” by Clubb’s statements, unlike cases where
we have denied summary judgment on a retaliation claim because
the conduct complained of was likely to lead to a Title VII
violation. See, e.g., Navy
Fed., 424 F.3d at 406-08; see also
20
Jordan, 458 F.3d at 341 (“[W]e cannot simply assume, without
more, that the opposed conduct will continue or will be repeated
unabated”). Indeed, after the incident, Clarion management
warned Clubb, and Clubb and Liberto thereafter had no further
contact. Moreover, Liberto has pointed to no other specific
indicators in the record to evince that workplace racism was
afoot before then.
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.” Jordan, 458 F.3d at 340; see also
Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (“A
recurring point in [Supreme Court opinions on hostile work
environments] is that . . . offhand comments[] and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of
employment’” (emphasis added)); Greene v. A. Duie Pyle, Inc.,
170 F. App’x 853, 856 (4th Cir. 2006) (per curiam) (concluding
that employer was entitled to summary judgment on retaliation
claim because plaintiff, when he made his complaint, did not
have an objectively reasonable belief that his employer
maintained a hostile workplace where sexual magazines and
21
inappropriate jokes were often posted); Butler v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1213-14 (11th Cir. 2008) (holding that
coworker’s use of the word “nigger” twice in negative reference
to a third party was not enough to give plaintiff an objectively
reasonable belief that a racially hostile work environment
existed so as to support a retaliation claim).
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
22
SHEDD, Circuit Judge, concurring:
I agree with Judge Niemeyer and Chief Judge Traxler that,
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 with Judge Niemeyer that
summary judgment should also be affirmed on the retaliation
claim.
23
TRAXLER, Chief Judge, concurring in part and dissenting in part:
I agree that under existing precedent, Liberto has not
demonstrated a hostile environment under Title VII or § 1981.
However, because I believe the district court erred in granting
summary judgment on her retaliation claims, I dissent in part.
I.
Viewing the facts in the light most favorable to Liberto,
as we must in reviewing an order granting summary judgment
against her, see Bland v. Roberts, 730 F.3d 368, 372 (4th Cir.
2013), the record reveals the following. Clarion is a hotel
containing guest rooms, a conference center, several restaurants
and bars, a banquet facility, and a nightclub. Liberto, who is
African-American, began working for Clarion in early August
2010. She trained in each of the hotel’s food and beverage
positions, including morning restaurant hostess, cocktail
waitress, restaurant server, bartender, and banquet-facility
server.
On the night of September 14, Liberto was working the
cocktail shift when one of her customers ordered a drink that
was fairly complicated and time-consuming to make. When the
bartender on duty at the main bar refused to make the drink, the
bartender at the “pub bar” agreed to do so. After picking up
the drink from the pub bar, Liberto passed through the kitchen
and into the dining room in order to bring the drink to her
24
customer. While Liberto was still in the dining room, Trudy
Clubb, a weekend manager for the hotel, approached her and began
“screaming loudly” at her. J.A. 239. Clubb, who is Caucasian,
was a long-time employee of the hotel and friend of Dr. Leonard
Berger, the hotel’s owner. * Apparently, Clubb had attempted to
get Liberto’s attention as Liberto was passing through the
kitchen, but Liberto had not heard her. Clubb yelled to
Liberto, “Hey, you. Girl that can’t hear,” and briskly came up
to her. J.A. 238. Liberto turned away from Clubb and looked at
a computer screen, which further agitated Clubb. As Clubb
yelled at Liberto, she stood so close to her that Liberto “could
feel her breath” and Clubb’s spittle flew into Liberto’s face.
J.A. 241.
As Liberto attempted to proceed into the dining room to
serve a customer, Clubb continued yelling at her, telling her
not to walk away. Clubb told Liberto that she was not allowed
to go through the kitchen, and she called Liberto “deaf” and
told her that Clubb “was going to get” her and “make [her]
sorry.” J.A. 250, 252-53. Then she called Liberto either a
“damn . . . porch monkey” or “dang[] porch monkey” and exited
the dining room. J.A. 258. “Porch monkey” is a racial slur
*
When Liberto was first introduced to Clubb, Clubb told
her, “[Y]ou look like Stacy, but Stacy’s nice.” J.A. 212.
25
used against African-Americans. See White v. BFI Waste Servs.,
L.L.C., 375 F.3d 288, 297 (4th Cir. 2004).
The next day, Liberto received similar treatment from
Clubb. Before her dinner shift, as Liberto was in the hotel’s
management office speaking to Clarion’s Food and Beverage
Director Richard Heubeck about what had happened the night
before, Clubb came into the office, cut Liberto off, and said,
“I need to speak to you, little girl.” J.A. 263. Liberto told
Clubb she was speaking to Heubeck, but Clubb replied that she
was “more important,” and Liberto followed her out of the
office. J.A. 264. As they sat at a table together, Clubb began
to question Liberto again about why she had gone through the
kitchen and whether she had asked anyone if she could do so.
Clubb again became agitated and again began yelling at Liberto
with others in the room. As the two were getting up, Clubb
threatened that “she was going to go to Dr. Berger” and was
“going to make [Liberto] sorry.” J.A. 266-67. She then, in a
loud voice, again called Liberto a “porch monkey.” J.A. 267.
Two days later, on September 17, 2010, Liberto complained
to Nancy Berghauser, who was Clarion’s director of human
resources, that on September 14, Clubb, when berating her for
cutting through the kitchen and for not responding to Clubb’s
attempts to get Liberto’s attention, had called Liberto a “porch
monkey[]” and told Liberto that Clubb was going to “‘speak with
26
Dr. Berger’” and “‘make [Liberto] sorry.’” J.A. 316. Later the
same day, Berghauser forwarded her typed notes from her
conversation with Liberto to Dr. Berger and Mark Elman, who was
the hotel’s general manager. Upon receiving information about
Liberto’s allegations, Dr. Berger asked Heubeck about Liberto.
At the end of their conversation, Dr. Berger decided to
terminate Liberto, and Liberto was notified on September 21 that
she was being terminated.
Liberto subsequently filed a complaint with the EEOC
alleging discrimination due to racial harassment and retaliation
– in the form of her discharge – for engaging in protected
activity. The EEOC then issued a right-to-sue letter, and
Liberto brought this action asserting claims of racial
discrimination and retaliation under Title VII and 42 U.S.C.
§ 1981. Following discovery, the defendants filed a motion for
summary judgment that the district court granted.
II.
A plaintiff may demonstrate she was subjected to a racially
hostile work environment under Title VII by proving she
experienced (1) “unwelcome conduct,” (2) that was based upon the
her race, (3) that was “sufficiently severe or pervasive to
alter [her] conditions of employment and to create an abusive
work environment” and (4) that “is imputable to the employer.”
Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).
27
The same test applies to claims brought under 42 U.S.C. § 1981.
See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.
2001).
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. See Ante, at 20 (“In the
circumstances of this case, if no objectively reasonable juror
could have found the presence of a hostile work environment, as
we hold today, it stands to reason that Liberto also could not
have had an objectively reasonable belief that a hostile work
environment existed.” (emphasis in original)).
The relevant provision of Title VII, protecting against
retaliation, reads:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because he has opposed any practice made an
unlawful employment practice by this title.
42 U.S.C. § 2000e-3(a). “The plain meaning of the statutory
language provides protection of an employee’s opposition
activity when the employee responds to an actual unlawful
employment practice.” Jordan, 458 F.3d at 338. Nevertheless,
28
we have also held that “opposition activity is protected when it
responds to an employment practice that the employee reasonably
believes is unlawful.” Id. (emphasis in original). Thus, even
if the practice opposed does not actually violate Title VII,
opposing the practice can be protected conduct if the employee
has “an objectively reasonable belief that a violation is
actually occurring based on circumstances that the employee
observes and reasonably believes.”
Id. at 341.
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
(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). We have explained before
that “[f]ar more than a ‘mere offensive utterance,’ the word
‘nigger’ is pure anathema to African-Americans.”
Spriggs, 242
F.3d at 185. And Liberto may well have held the same belief
about the term “porch monkey.” See
id. (noting that the
“constant use of the word ‘monkey’ to describe African Americans
was similarly odious” to the use of the word “nigger”).
We, of course, held in Jordan that an offensive racial
remark made by a coworker did not amount to actionable
29
harassment, but, in so doing, we emphasized that the complained-
of incident was only “a singular and isolated exclamation [that
was] not . . . repeated . . . before or after” and that it was
directed at criminals on television who had been captured, not
at the plaintiff or any fellow employee. Jordan, 458 F.3d at
340. Here, in contrast, 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 that our very narrow interpretation of
what constitutes a reasonable belief in this context has
“place[d] employees who experience racially discriminatory
conduct in a classic ‘Catch-22’ situation.” Id. at 349 (King,
J., dissenting). They can either report the offending “conduct
to their employer at their peril,”
id. at 355 (King, J.,
dissenting), as the Supreme Court has essentially required them
to do in order to preserve their rights, see Faragher v. City of
Boca Raton,
524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.
30
Ellerth, 524 U.S. 742, 764-65 (1998), or they can “remain quiet
and work in a racially hostile and degrading work environment,
with no legal recourse beyond resignation,”
Jordan, 458 F.3d at
355 (King, J., dissenting). Like 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.
31
