Reya Boyer-Liberto v. Fontainebleau Corporation, 786 F.3d 264

Background

Reya C. Boyer-Liberto, an African‑American employee at the Clarion Resort Fontainebleau Hotel, was called a racial epithet (“porch monkey”) by Trudi Clubb on two occasions over two days in September 2010; Clubb also shouted at, spat at, and threatened Liberto.
Liberto reported the incidents to supervisors and HR; management issued Clubb a written warning, then the owner, Dr. Berger, shortly thereafter fired Liberto for alleged poor performance.
Liberto sued the Fontainebleau Corporation and Berger under Title VII and 42 U.S.C. § 1981 for hostile work environment and retaliation; the district court granted summary judgment for defendants.
A divided 4th Circuit panel affirmed in part, but the en banc Court vacated and reheard the case.
The en banc majority held that a reasonable jury could find (1) that the supervisor‑level slur was sufficiently severe to support a hostile‑work‑environment claim and (2) that reporting an isolated, physically threatening or humiliating incident is protected oppositional activity for retaliation purposes; the Court overruled the narrow aspect of Jordan v. Alternative Resources.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Clubb’s conduct (two uses of “porch monkey” plus threatening/spitting) was sufficiently severe or pervasive to create a hostile work environment	Liberto: the epithet, physical proximity, spitting and threats by a manager‑figure are extremely humiliating/threatening and can be actionable even if isolated	Defendants: the conduct was isolated/offhand and not severe or pervasive enough as a matter of law	Vacated summary judgment: a jury could find the conduct (especially coming from a supervisory figure or perceived supervisor) sufficiently severe to create a hostile environment
Whether Clubb was a supervisor for assessing severity and employer liability	Liberto: Clubb portrayed and Liberto reasonably believed Clubb had power to get her fired	Defendants: Clubb was not Liberto’s supervisor and lacked authority to take tangible employment actions	Court assumed for purposes of severity that Liberto reasonably perceived Clubb as a supervisor (fact for jury); vicarious‑liability issue remains for trial/remand
Whether reporting an isolated incident can be protected oppositional activity (retaliation element)	Liberto: reporting a physically threatening or humiliating isolated slur is protected because a reasonable employee could believe a hostile environment was occurring	Defendants: reporting was not protected because the incident was not severe/pervasive and no evidence showed a hostile environment was in progress or likely to occur	Held: an employee who reports an isolated incident has protected activity if the incident is physically threatening or humiliating (objective reasonable belief standard focused on severity)
Whether Jordan v. Alternative Resources (requiring evidence that a hostile environment was likely to occur) remains controlling	Liberto: Jordan’s requirement creates a Catch‑22 and chills early reporting; protection should cover serious isolated incidents	Defendants: Jordan controls and bars protection here	Court overruled Jordan’s narrow rule that required evidence a hostile environment was likely to occur; instead focus is on whether the isolated incident was physically threatening or humiliating

Key Cases Cited

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (isolated incidents may be actionable if "extremely serious"; evaluate frequency, severity, physical threat or humiliation)
Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (hostile work environment actionable under Title VII)
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (objective‑reasonableness test; consider severity, pervasiveness, physically threatening or humiliating nature)
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (antiretaliation provision construed broadly to encourage reporting)
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (hostile environment claims normally involve repeated conduct; claims based on cumulative effect)
Vance v. Ball State Univ., 570 U.S. 421 (2013) (definition of "supervisor" for vicarious liability: empowered to take tangible employment actions)
EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005) (protected oppositional activity includes reasonable belief that Title VII violation has occurred or is in progress)
Jordan v. Alt. Res. Corp., 458 F.3d 332 (4th Cir. 2006) (panel rule narrowed protection for reporting isolated incidents; partially overruled by en banc decision)
Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271 (2009) (answering questions in employer investigation is protected opposition)