In an important victory for employees, the en banc Fourth Circuit held that use of a racial slur twice within a 24-hour period could support Title VII hostile work environment and retaliation claims. See Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 WL 2116849 (4th Cir. May 7, 2015) (en banc). The en banc ruling reversed a panel decision from May 2014, which had upheld the district court’s dismissal of the case on the basis that such an isolated episode could not, as a matter of law, support the plaintiff’s contentions. The full Court of Appeals disagreed, voting 12-3 to send the plaintiff’s hostile work environment claim to trial, and 14-1 to also allow her to present her retaliation claim to a jury.

Background

As we previously reported, Plaintiff Reya Boyer-Liberto was a hostess and server at the Clarion Hotel in Ocean City, Maryland, which is owned by the Fontainebleau Corporation. In September 2010, Boyer-Liberto got into a work-related argument with Trudy Clubb, a Food and Beverage Manager at the Clarion (albeit not her immediate supervisor). Following the incident, Clubb allegedly referred to Boyer-Liberto (who is African-American) as a “porch monkey” twice in a 24-hour period. Boyer-Liberto, who formally complained about Clubb’s comments to Clarion management, was later terminated by the hotel for performance-related issues, including her failure to pass Clarion’s bartender exam.

Boyer-Liberto brought claims for discrimination and retaliation against Fontainebleau under Title VII and 42 U.S.C. § 1981. The district court granted Fontainebleau’s motion for summary judgment, holding that Clubb’s offensive conduct was too isolated to support Boyer-Liberto’s claims for discrimination and retaliation. Boyer-Liberto appealed, and a three-judge Fourth Circuit panel affirmed the district court’s decision.

The En Banc Decision

The en banc Court of Appeals disagreed with both the district court and the original panel decision and remanded the case for trial. Writing for the majority, Judge Robert King began with Boyer-Liberto’s hostile work environment claim. After determining that Clubb was in a sufficiently supervisory role so as to hold Fontainebleau vicariously liable for her misconduct, the court turned to whether her offensive comments created a hostile work environment. As Judge King explained, under the Supreme Court’s decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), “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.” Thus, it was inappropriate for the district court to grant summary judgment to Fontainebleau on Boyer-Liberto’s hostile work environment claim.

In the process, Judge King clarified that, to whatever extent prior Fourth Circuit precedent categorically required more than a single episode of harassment to give rise to a hostile work environment claim, that precedent was inconsistent with Faragher. Instead, the touchstone going forward would be whether “the harassment, though perhaps ‘isolated,’ can properly be deemed to be ‘extremely serious.’”

Turning to Boyer-Liberto’s retaliation claim, the en banc majority focused on whether Boyer-Liberto could have had a reasonable belief, based upon Clubb’s isolated comments, that a Title VII violation was in progress. Under Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), an employee cannot have a reasonable belief that a Title VII violation is in progress based solely on isolated episodes of harassment absent evidence “that a plan was in motion to create [a hostile work] environment” or “that such an environment was [otherwise] likely to occur.” But the en banc Court overruled Jordan concluding as follows:

"an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating."

Turning to the merits of Boyer-Liberto’s retaliation claim, the en banc Fourth Circuit held that “a jury could find that Liberto reasonably believed there was a hostile work environment in progress when she reported Clubb's use of the ‘porch monkey’ slur,” and so reversed the district court’s grant of summary judgment to Fontainebleau on the retaliation claim.

Writing for himself and Judge G. Steven Agee, Judge J. Harvie Wilkinson III concurred in part and dissented in part. Judge Wilkinson agreed with the majority as to Boyer-Liberto’s retaliation claim, but disagreed as to her hostile work environment claim—focusing on the extent to which it was unclear that Clubb was acting in a supervisory capacity at the time she made the offensive comments to Boyer-Liberto—and thus finding it unfair to hold Fontainebleau vicariously liable under the hostile work environment claim.

Judge Paul Niemeyer, who authored the original panel opinion, dissented from both of the majority’s conclusions. In particular, Judge Niemeyer disagreed that Clubb’s comments were sufficient to “to demonstrate the existence of a hostile work environment that altered the terms and conditions of [her] employment,” and would have relied upon the Fourth Circuit’s Jordandecision (which he also authored) to dismiss a retaliation claim based upon isolated episodes of harassment.

Conclusion

Although the en banc Fourth Circuit’s analysis was largely fact-specific, its broader endorsement of Title VII harassment and retaliation claims based upon two isolated, albeit horrendous, utterances by one relatively low-level employee (and its overruling of the Jordan decision) could have significant implications for employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, the states that comprise the Fourth Circuit. In that regard, the Boyer-Liberto decision may be a more general bellwether of the Fourth Circuit’s increasing sympathy for Title VII plaintiffs.