Reya C. Boyer-Liberto, an African-American woman, began working at the Clarion Resort Fontainebleau Hotel on August 4, 2010 as a morning hostess in one of the hotel's restaurants.  According to the Clarion's Food and Beverage Director and the owner, Liberto had difficulties with the morning hostess job and expressed a preference for other jobs at the hotel.  She was allowed to work in other departments, but she clashed with other employees, responded poorly to criticism, disregarded Clarion policy, and behaved unprofessionally.

On September 14, 2010, Liberto was passing through the kitchen on her way to one of the Clarion's bars so that she could place a customer's drink order.  Trudy Clubb, another Clarion employee, called to Liberto several times, but Liberto did not hear her.  When Clubb got Liberto's attention, Clubb yelled at her, put her face close to Liberto's, and called her a "porch monkey."  When Liberto went to the Food and Beverage Director's office the next day to complain, Clubb came in and said she needed to speak to Liberto outside.  Clubb scolded Liberto for abandoning her station and, once again, called Liberto a "porch monkey."  Liberto reported the conduct to the Clarion Human resources Director.  The Food and Beverage Director issued Clubb a written warning even though Clubb denied Liberto's allegations.

On September 17, the same day that Liberto complained to Human Resources, the Clarion owner met with the Food and Beverage Director to discuss Liberto's performance problems and her conflict with Clubb.  Because she "failed at four jobs" and failed a bartending test, the Clarion owner terminated Liberto's employment four days later.  Clubb, who Liberto testified was not a manager, was not involved in the decision, and learned of it a week later.

Liberto filed suit in federal court against the Clarion and its owners alleging racial discrimination and retaliation.  Defendants filed a motion for summary judgment, which the court granted.  Liberto appealed, and the Court of Appeals for the Fourth Circuit affirmed.

Liberto argued that the trial court should not have excluded her answers to interrogatories as part of the summary judgment record.  The district court excluded the answers because they were not based on Liberto's personal knowledge.  Liberto executed the answers with the oath that they were true "to the best of [her] knowledge, information and belief."  She also stated, in the text of the answers, that the information "was not based solely upon [her] knowledge…but include[d] the knowledge of [her] agents, representatives, and attorney."  Liberto argued that this was a commonly used boilerplate disclaimer.  The Court of Appeals affirmed the district court's exclusion, noting that the facts forming the basis for summary judgment must be admissible in evidence.  The declarant must demonstrate personal knowledge of the facts, and cannot attest to hearsay.  The Court stated that a declarant who wishes to use interrogatory answers to support or oppose a motion for summary judgment must execute the answers on personal knowledge or state the information in an affidavit that complies with the federal rules.

Liberto also argued that the undisputed facts demonstrated a hostile work environment.  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 working environment."  Courts look to the frequency of the conduct; its severity; whether it is physically threatening or humiliating; and whether it unreasonably interferes with an employee's work performance.

The Court held that, while the term "porch monkey" is racially derogatory and highly offensive, a coworker's use of the term twice in two days is not, as a matter of law, severe or pervasive enough to change the terms and conditions of Liberto's employment.  Clubb's statements were singular and isolated, did not relate to Liberto's terms of employment, and did not have long-term consequences.

Liberto also argued that the district court erred in dismissing her retaliation claims.  To demonstrate retaliation, a plaintiff must show that she was terminated because she responded to an employment practice she reasonably believed was unlawful.

The Court held that it was not objectively reasonable for Liberto to believe that she was complaining about unlawful conduct when she complained to Human Resources.  When the conversations occurred, Liberto thought she was being criticized by a coworker, not a supervisor.  Therefore, it is not likely that Liberto believed Clarion had altered the terms and conditions of her employment.  If an objectively reasonable juror could not have found a hostile work environment, then Liberto could not have an objectively reasonable belief that a hostile work environment existed.  Nor was the situation likely to ripen into a hostile work environment, as Clubb and Liberto had no further contact after Clarion warned Clubb.

Thus, the Court of Appeals affirmed the district court's grant of summary judgment.

Note:

This case was decided by the U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over the states of Maryland, Virginia, West Virginia, North Caroline, and South Carolina).  This opinion is not binding on the Ninth Circuit, which has jurisdiction over California. However, the Ninth Circuit could view it as persuasive authority if faced with a similar issue.

This case does not stand for the proposition that because two racially derogatory comments in two days did not rise to the level of a hostile work environment, the occasional derogatory comment can be ignored.  When management ignores a racial slur or other derogatory term, it can send the message, whether it intends to or not, that the behavior is not only tolerated but condoned.  This opens the employer up to liability, and discourages a diverse and collaborative working environment.

Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2014) __F.3d__ [2014 WL 1891209].