Reya Boyer-Liberto v. Fontainebleau Corporation

nо information with view documents Reya BOYER-LIBERTO, C. investigation.” nexus to the

possible, stated 34.) Plaintiff-Appellant, They argue Br. at its (App. for information relative third request having nothing to do with OTE parties CORPORATION, FONTAINEBLEAU disagree. We The Su- impermissible. trading as Clarion Resort Fontaine- has that “the law preme Court cautioned Hotel; Berger, P. bleau Leonard De- showing to the strong absent presumes, fendants-Appellees. grand contrary, jury acts within scope authority.” R. En- legitimate its Employment Equal Opportunity Com- Inc., 300-01, terprises, mission; Washington Metropolitan And, chal- subpoena 722. S.Ct. where Employment Lawyers Association; relevancy grounds, Appel- lenged Center, Inc., Sup- Amici Public Justice here, quash “the must lants do motion Appellant. porting unless the court deter- be denied district No. 13-1473. possibili- mines that there is no reasonable category ty that the of materials Gov- Appeals, United States Court of seeks will information produce ernment Fourth Circuit. general subject relevant jury’s investigation.” grand Id. at Argued Sept. 2014. noted, 722. As the District Court 7,May Decided arrangements professional between the as- and third be dis- parties sociation could

guised patients’ kickbacks records

might specimens reflect blood had impermissibly

been ordered or taken. Un- circumstances,

der these the District abuse

Court did not its discretion con-

cluding category of materials subpoena reasonably in the

identified could information

produce relevant to the Gov- investigation.

ernment’s

IV. foregoing reasons,

For the affirm the we order

District Court’s entered on Novem- 20, 2014.

ber Cockey, Ringgold

ARGUED: Robin PC, Cockey, Maloney, Brennan & Salis- ceedings, alleges Harriet twen Maryland, Appellant. for within bury, LLP, Balti- Ewing Cooperman, Ellen Saul ty-four-hour period September D. more, Maryland, Paul Appellees. for working as a at the while cocktail waitress Ramshaw, Oppor- Equal Employment U.S. Resort Fontainebleau Hotel Clarion D.C., Commission, Washington, for tunity (the “Clarion”), City, Maryland she Ocean n Equal Opportu- Employment Amicus U.S. monkey” “porch twice called a BRIEF: Brett S. nity Commission. ON job by with the of her threatened loss Baltimore, LLP, Covington, Ewing Saul manager. af Caucasian restaurant Soon Appellees. Lopez, P. David Maryland, at the hotel reporting higher-ups ter Counsel, Wheeler, Act- Carolyn L. General harassed, racially that she had been Liber- Counsel, S. General Jennifer ing Associate owner, Dr. fired to was Clarion’s Goldstein, Acting Assistant General Coun- Berger. against P. action Leonard This Counsel, sel, Equal of General Office Berger Fontainebleau Corporation Commission, Employment Opportunity ensued, asserting claims of Liberto D.C., Equal Washington, for Amicus U.S. retaliation, hostile environment Commission. Employment Opportunity Title VII Rights under both of the Civil Huron, Chertkof, Douglas Z. B. Stephen § Act of 1964 and 1981. The U.S.C. Huron, Heller, & Salzman Chertkof summary judgment court district awarded PLLC, D.C.; Gelfman, Washington, liana defendants, Boyer-Liberto v. to the see Appellate D. Advoca- Murnaghan, Francis 1:12-cv-00212, Corp., Fontainebleau No. Fellow, Center, Public Balti- cy Justice (D.Md. 4, 2013), more, Maryland, Metropolitan Apr. Amici 2013 WL for Washington Lawyers Associ- Employment and not-fully-unanimous ECF No. a ation and the Public Justice Center. affirmed, Boyer- this panel of Court see v. 752 F.3d Corp., Liberto Fontainebleau TRAXLER, Judge, Before Chief and Cir.2014). decision panel’s MOTZ, WILKINSON, NIEMEYER, vacated, however, by grant our of was KING, DUNCAN, GREGORY, SHEDD, rehearing en banc. AGEE, WYNN, DIAZ, KEENAN, FLOYD, THACKER, HARRIS, and below, explained As we now vacate Judges. Circuit judgment of the district court and remand proceedings further on Liberto’s by published and remanded Vacated In so underscore the doing, claims. we Judge opinion. KING wrote in pronouncement Court’s Far opinion, Judge in which TRAXLER Chief Raton, City Boca agher GREGORY, SHEDD, MOTZ, of Judges and 141 L.Ed.2d 662 DUNCAN, KEENAN, DIAZ, WYNN, (1998), that an incident of harass isolated FLOYD, THACKER, and HARRIS serious, ment, extremely a if can create joined. Judge WILKINSON wrote an concurring dissenting in opinion part recog hostile work environment. alsoWe joined. in which part, Judge AGEE from protected nize that an is dissenting NIEMEYER Judge wrote a an isolated reports she retaliation when opinion. physically is incident harassment if a threatening humiliating, even hos EN ON REHEARING BANC engendered environment is not tile work

KING, Judge: Circuit specify Finally, that incident alone. we today’s to the extent decision Boyer-Liberto, African- Reya C. pro Re plaintiff rights American in these civil conflict with Jordan v. Alternative (4th Cir.2006), prepared, drink was Liberto wanted to Corp., sources a avoid confrontation hereby overruled. with bartender Jordan bar, the main so chose a path she new nightclub to the back took her I. through the restaurant kitchen. Liberto A. briskly carried the Hula through Hula nightclub kitchen and across the to her matter reflects that The record in this customer’s table. then went to a She ser- 4, 2010, August began working Liberto station, ver which night- was located Clarion, at the an oeeanfront hotel contain- doors, club several feet the kitchen from rooms, ing guest restaurants and several print guest a check. bars, nightclub, conference center meeting banquet facilities.1 Dur- At that point, was Liberto confronted employed she was ing the seven weeks Clubb, Trudi Food and Beverage white and Beverage with the Clarion’s Food De- Manager at the Clarion. Unbeknownst to partment, Liberto worked assorted Liberto, yelling Clubb had been at Liberto roles, hostess, including restaurant restau- passed she through as the kitchen carrying server, bartender, banquet rant and Hula soon Hula. Liberto learned that Liberto, According cocktail to' waitress. Clubb was livid she because believed that variety her that assigned the Clarion ignored Liberto had heard her. but As jobs learn all positions so that she could station, Liberto worked at the server Beverage Department within the Food and doors, Clubb came kitchen through the part as of her training. loudly girl screaming, “Hey, that can’t Clubb, 14, 2010, September hear.” J.A. still night shouting, On 237.2 Liberto, quickly approached Liberto a cocktail working waitress who turned away in the her face from in an effort nightclub. Clarion’s One Clubb Hula,” “Hula a remain calm—a that customers ordered a drink move made Clubb time-consuming that prepare. to even more furious. Clubb then came so main to adjacent bartender the bar refused close Liberto that Liberto could feel оrder, fill explaining to the to Liberto that Clubb’s breath on her face as Clubb stood Indeed, continuing other would Liberto’s to nightclub patrons see the at side. drink, Liberto, sprayed yell Hula Hula want too. In an Liberto’s and that Clubb message effort please to her customer and after face with saliva. Clubb’s supervisor neither consulting immediate Jamie that Liberto should have walked Clubb, Avery, beyond through ignored the main Liberto went bar kitchen nor bar, to a pub repeatedly where she found bartend- and Liberto indicated she willing agreed. er to make a Hula Hula. Once the understood and (D.Md. 2013), purposes Apr. 1. de For of our novo assessment of WL at *2 n. 2 award, summary judgment the district court’s ECF No. 52. Much our factual recitation light we view the facts in the most favorable deposition testimony; is drawn from Liberto’s Liberto, nonmoving party. to as the See La answers, rely interrogatory we do not on her Harvey, ber v. Cir. properly which the excluded district court Thus, 2006) court, (en banc). like the district from consideration. See id. accept “porch we that Liberto was called a monkey” days, on and two consecutive -” 2. Citations herein to "J.A. refer to the the defendants knew at least one of those by Appendix filed contents of the Joint alleged discharge decision slurs when the to parties appeal. in this Boyer-Liberto Liberto was made. v. Fon 1:12-cv-00212, Corp., tainebleau No. following day. During the persisted, September shouting nonetheless Clubb’s call, complained to Liberto she phone station Liberto left the server even as racially by harassed Clubb. Clubb was had been nightclub customers. tend to notes, walking Berghauer pre- handwritten From loudly berating Liberto now her, typewritten summary Liberto a of her dis- following pared away from first Liberto, moving back to with which included Li- nightclub then cussion into the and allegation called her subse- that Clubb a Upon station. Liberto’s berto’s the server area, finally monkey” on 15. Ber- “porch September to Clubb quent return summary Septem- into the on nightclub ghauer provided to exit proceeded Manager so, Berger threatened 17 to Dr. and General As she did Clubb ber kitchen. Elman, included, go- Mark and Elman met with Liberto “[I’m] in words that Liberto make further discuss her [you]” going September to to ing get “[I’m] to Meanwhile, sorry.” complaint. although then Clubb de- [you] J.A. 252-53. Clubb using monkey,” turning “porch to look nied ever the term concluded her threat calling a “damn issued notice on her either Heubeck her written Liberto monkey.” monkey” “dang September advising or a as “a member porch porch Beverage Management Food & at 258. of our See id. ..., expected to conduct [Clubb] team arriving for a dinner shift Upon herself as such” and “needs to be cautious 15, 2010, September Liberto following day, language phrases she uses can to management office went to Clarion’s derogatory.” perceived racist or Food and Bever- report Clubb’s conduct to 311. J.A. Liberto age Director Richard Heubeck. Dr. begun According Berger, Heubeck when to Liberto’s racial just talking had Clubb, interrupted complaint September who came harassment she was Liberto, go “I need him to Heubeck prompted into the office said to you, ask—for time ever— speak girl.” day little J.A. the first meeting performance. Berger’s responded Liberto that she was about Liberto’s Heubeck, retorted, account, negative but “I’m Heubeck gave Clubb evalua- fol- important,” prompting variety Liberto to tion of Liberto and attributed her more every job assignments out of the office. Id. at 263-64. of to failure role low Clubb table, thus, tried; nearby further consulting and Liberto sat at a she after Clubb Liberto, reprimanded Berghauer September Elman and between and Clubb 20, voice, Berger to angry passing raised and 18 and made the decision fire night. immediately. beginning the kitchen As At the through prior Liberto 21, September from the table scheduled Li- the two women then rose her shift chairs, being in their threat- notified that was dis- pushed and Clubb berto was she ened, gonna get gonna go charged. “I’m I’m you. Id. at 266. Berger.” owner] to Dr. [hotel empowered by Whether Clubb had been angry though still Her voice loud and to fire or take other the Clarion Liberto before, capped than somewhat lower Clubb employment against her tangible actions is by directly threat at Liberto looking on this From Liberto’s unclear record. monkey.” again calling “porch and a her during time as her short a perspective

Id. at 266-68. just Dr. employee, “was Clarion Clubb 16, 2010, just there September Berger’s Liberto ar- friend and she was to On greet glorified as a ranged speak say people Human Resources hello and Nancy did not Berghauer by telephone Director hostess.” J.A. 213. Liberto know

271 Corporation and did manager held a title Fontainebleau and Dr. Ber- that Clubb manager. to be her ger. not consider Clubb (Liberto’s testi- deposition

See id. and Heu- reported Avery that she

mony “not to beck, Avery that told Liberto not have go to because did [Clubb] [Clubb] Following discovery, the defendants decisions”). to do voids or make power filed a for summary judgment. motion Nevertheless, conveyed Liber- Clubb validity Contesting the of the hostile work message got to—and Liberto claims, —that environment fo- defendants position was in a to have Liberto Clubb just cused on one of the four elements just Before she had finished terminated. claim, contending such a there had Clarion, her second week of work at the showing been no that Clubb’s conduct was out” extremely singled “felt Liberto enough severe or pervasive to alter Liber- perceived “my position Clubb and to’s conditions of produce being threatened” her. id. 277- See an abusive work environment. See Okoli (discussing August Twitter 79 2010 Balt., City v. say- from message Liberto to a co-worker Cir.2011) (“To racially demonstrate ... a starv- ing [a] that Clubb is “after me like environment, plaintiff hostile work must bone”). reрeatedly on a ing wol[f] Clubb (1) conduct; show that there unwelcome my place Liberto “what was” and told (2) race; plaintiffs that is based on the ... Berger made it “always clear that Dr. (3) sufficiently which pervasive severe or listen to said and anything would she to alter plaintiffs employ- conditions of wouldn’t believe me.” Id. at 279. Clubb’s ment create an and to abusive work envi- led conduct Liberto to understand (4) ronment; which is imputable power “did have I did not Clubb (alteration employer.” quota- internal have.” Id. 274. Consistent with that omitted)); tion Spriggs marks see also v. Elman dur- perception, informed Liberto Glass, Diamond Auto F.3d September meeting ing their (4th Cir.2001) (explaining that ele- Clubb was Liberto’s “boss.” id. See ments of a hostile environment claim (September 18 email to and Ber- Heubeck § “are the same under either or Title ghauer from Elman what he recounting VII”). Liberto). told claims, to the respect

With retaliation B. argued the defendants that Liberto could that she protect not establish undertook a 23, 2012, January exhausting On after making her activity by ed racial harass remedies with the fed- administrative ment to the Clarion. EEOC complaint Equal Op- government’s -Employment eral Union, Credit Navy Fed. (the “EEOC”), Li- Commission portunity (4th Cir.2005) (“In 405-06 order to estab complaint filed her District of berto retaliation, facie case of prima lish Maryland. The four complaint' asserted (1) prove three plaintiff must elements: one claim claims: each of hostile work , activity; protected that in a engaged she pursuant environment retaliation (2) that took an adverse against solely Title the Fontainebleau VII (3) against her; action employment Corporation, trading as Resort the Clarion a Hotel; causal link between Fontainebleau and one claim each there was events.”); see of work environment retaliation two also Honor v. Booz- hostile Hamilton, Inc., 180, § 188 against under 42 U.S.C. 1981 both the Allen & 383 F.3d 272 any of his Cir.2004) against discriminate employer to (recognizing that elements opposed ... he has employees because retalia § 1981 and Title VII facie prima

of employment identical). an unlawful practice made The defendants are tion claims ” Jordan, subchapter.’ by this complaint practice was that Liberto’s elaborated U.S,C. (quoting 42 F.3d at 338 activity because opposition protectéd not a 2000e-3(a)). majority § The continued reasonably have believed not' she could that, language generously to sufficiently “[r]eading the se conduct that Clubb’s however, we give purpose, effect to its prohibited a engender pervasive vere or Fed., activity is opposition have also held Navy work environment. hostile responds employ it to an when opposi protected that an (explaining reason employee that the practice an internal ment activity, making such as tion (citing unlawful.” Id. ably believes is where an сomplaint, protected 406-07). Fed., Navy actions actu “employment either opposes “employ or unlawful under Title VII” ally that the majority The observed Jordan reasonably actions believes [she] ment may practices be unlawful”). in activity subject protected opposition under U.S.C. clude discrimination 2000e-2(a)(l) in form of “maintain § the de- summary judgment, seeking environment, ing racially a hostile work prece- on our substantially relied fendants i.e., permeated ... with dis ‘workplace v. Resources in Jordan Alternative dent ridicule, intimidation, in criminatory (4th Cir.2006). There, Corp., 458 F.3d pervasive sufficiently that is severe sult alleged plaintiff African-American victim’s em to alter the conditions of the that, report on a watching news while working an ployment and create abusive ” capture workplace television about Jordan, 458 F.3d at 339 environment.’ a co- snipers the infamous D.C. Inc., Sys., (quoting Harris v. Forklift “They presence, exclaimed his worker 17, 21, L.Ed.2d 295 114 S.Ct. monkeys in a put those two black should (1993)). recognized further The and let the cage apes a bunch of black with an envi determine ‘whether “[c]ourts Jordan, 458 F.3d apes them.” See f[uc]k sufficiently hostile or abusive ronment Jordan, plaintiff, reported The at 336. circumstances, includ by looking at all the supervisors and was fired comment to his discriminatory of the ing frequency complaint. a month of his Id. within conduct; physi it is severity; its whether against his 337. Jordan then filed suit humiliating, or a mere cally threatening or alia, alleging, retaliatory inter employers, utterance; unrea and whether it offensive in contravention of Title VII and discharge employee’s sonably interferes ” § The district court dismissed 1981. Id. (quoting Far Id. performance.’ Rule of complaint Jordan’s under Federal Raton, 524 U.S. City Boca agher 12(b)(6)for failure to state Procedure Civil 787-88, 141 L.Ed.2d 662 “ granted, relief can be upon a claim which (1998)). ‘sim majority explained, theAs Court, to our which appealed and Jordan comments, and isolat ple teasing, offhand panel decision. split affirmed serious) (unless extremely will ed incidents discriminatory changes amount to retaliation Addressing the Title VII ” employment.’ terms and conditions claim, panel majority opinion “ VII, (quoting Faragher, Title shall be Id. ‘[i]t related under 2275). majority also noted for an S.Ct. employment practice an unlawful generally light work environments re sonable belief in of all the “hostile circum- that only after an accumulation discrete stances a Title VII violation hap- sult has Id. or in (citing pened of harassment.” Nat’l see progress.”); Navy instances also Fed., Morgan, Passenger Corp. R.R. F.3d at (concluding 406-07 that plaintiff reasonably 153 L.Ed.2d 106 believed she was op- (“Hostile (2002) claims are posing by environment unlawful retaliation disrupting in plan different kind from discrete acts. Their that had in by been set motion em- very repeated ployer nature involves conduct.... employee terminate another 2000e-3(а) § claims are based on the cumulative her as “[u]nder Such construed by acts.”)). Federal, assume, Navy effect of individual simply we cannot more, opposed without the conduct assess the of Jordan’s To merits Title unabated; repeated will continue or will be claim, panel retaliation majority VII the rather, the employee must have an objec- clarified, question “the reduces to whether tively reasonable belief that a violation is an complained Jordan about actual hostile actually occurring on based circumstances or, one, environment if there was not employee that the reasonably observes and reasonably whether Jordan could have be- believes.”) Jordan, (em- 458 F.3d at 341 Jordan, there was one.” lieved 458 F.3d omitted). there, phasis majority From the majority The first concluded that determined that could Jordan not establish actually no hostile work environment exist- a reasonable that a belief hostile work ed, in that monkeys” the “black com- environment in in progress, was that “no though crude “unacceptably ment — allegation in complaint suggests that a response an racist” —“was isolated direct- plan was motion to create such an envi- than snipers” “any ed at rather fellow ronment, let alone that such an environ- employee.” majority Id. 339-40. The ment likely was even occur.” Id. at 340. that the underscored comment “was sin- Accordingly, majority opinion affirmed gular and isolated exclamation” that did the dismissal of Jordan’s Title VII retalia- not and could not have “altered the terms claim, § tion his well as 1981 retaliation employment,” and conditions of [Jordan’s] claim. Jordan did “not describe a work- racism, place permeated by by threats of agreed pan- Jordan dissent with the violence, by improper interference with majority gain protection el for his work, resulting conduct in psycholog- opposition activity, employee may rely an ical harm.” Id. at 340. aon reasonable that Title belief VII is Turning process to the being issue of Jordan’s reason- violated the con- belief, Jordan, panel majority being able See opposed. concluded duct J., “no objectively person (King, dissenting) reasonable (citing Navy 406-07). Fed., have [Jordan’s could believed that work- The dissent view, place] grips disputed however, hostile work the majority’s Jordan, Navy environment.” 458 F.3d at 341. an requires employee oppos- Federal acknowledged that, ing But the a potential also hostile work environment to Federal, pursuant Navy Jordan prove plan could “that a was motion to create rely is, a reasonable that a an belief hostile such environment.” That the dis- taking shape.” distinguished work environment “was discrete op- sent action (the (“Navy id. at 340-41 posed by Navy plaintiff Federal holds Federal seeking protection discharge from imminent retaliatory of another objectively employee) opposed retaliation must have an rea- from conduct 274 made,” (conduct that, ment and “it was repeated, if could thus that en

Jordan environment). tirely for to a reasonable Jordan to believe amount hostile that, reporting the ... comment his that, concluded The Jordan dissent racially a employers, opposing he was hos charged “[b]y opposing racially conduct Jordan, tile 458 work environment.” F.3d reasonably part that he believes could be at 355. The dissent lamented be environment, aof hostile work parcel majority’s cause panel opinion opposed has the im reporting employee a contrary, “employees in Circuit who this whole, absent an inde permissible even experience racially conduct harassing are believing basis for the conduct pendent ” faced As the with ‘Catch-22.’ Id. dis Jordan, might repeated.” 458 F.3d explained employees’ quandary, sent those “Indeed,” emphasized, the dissent 354. “[t]hey may report such conduct to their report require employees to such inci “we (as did), peril their employer at Jordan or en prevent dents order to hostile work they may quiet remain and work coming into being.” vironments from Id. racially degrading hostile and work envi (referring to El employer’s affirmative ronment, legal beyond no recourse defense, lerth/Faragher 524 Faragher, see Jordan, resignation.” Id. But 458 see F.3d 807, 2275; Burlington 118 S.Ct. (the majority’s at 342 retort “Jordan’s Ellerth, 742, Inc. v. 524 U.S. 764- Indus. dilemma, by the law is inconsistent 65, 2257, (1998), 141 L.Ed.2d 633 encouraging discouraging ‘early’ both duty imposing to avoid harm reporting, presented too abstractly. by reporting employer). harassment pre The highlighted precedent strong policy removing The dissent further observing employee’s ‘generalized “that an venting workplace can discrimination retaliation not excuse fear of does a failure Navy objective does coexist with Federal’s conduct, ‘Title report’ harassing standard”). because opinion reasonableness expressly prohibits retaliation VII the Jordan thereafter withstood a against [employees] reporting for ... petition rehearing banc, en which was ” (alterations harassment.’ Id. judges on a 5-5 vote of the then in denied original) (quoting Applied Barrett v. Radi active v. service. Jordan Alternative Energy Corp., ant (4th Cir.2006). Res. Corp., 467 Cir.2001)). And, the dissent stressed the t then-recen Court’s edict “ ‘[interpreting provi the antiretaliation to provide protection sion broad from re Here, April its decision of helps cooperation upon taliation assure the court district relied on Jordan and accomplishment pri of [Title VII’s] which summary judgment awarded to the defen mary objective’ preventing harm—‘de — dants, their adopting contentions ” (alteration pends.’ original) Id. per Clubb’s conduсt was not so severe (quoting Ry. N. & Santa Fe Burlington to create a work environ vasive as hostile White, Co. ment belief in or to instill reasonable (2006)). 2405, 165 L.Ed.2d 345 Liberto, protect such as would from retaliation, unlawfully that she been had bottom, recog At dissent the Jordan Boyer-Liberto v. harassed. See Fontaine monkeys” nized that “black comment 1:12-cv-00212, bleau Corp., No. WL made co-worker “is the stuff Jordan’s (D.Md. 2013), Apr. 4, racially which a hostile work ECF No. environ rejecting claims, 52.3 In Liberto’s hostile work Liberto’s retaliation the court claims, environment the district court de again looked to Jordan and ruled that of termined that two incidents use of “[t]he objectively “‘no person reasonable could assuming they racial epithet, occurred as have believed that the [plaintiffs work en testified, do not simply comprise Liberto was, be, vironment] or was soon going to conduct, pervasive either or severe howev racist, infected severe or pervasive ” unacceptable they er are.” Id. at *3. The threatening, humiliating or harassment.’ explained “compare[d] court it had (alteration Id. at *4 original) (quoting in in the evidence this case to that [three 341). Jordan, 458 F.3d at others]” and the conduct at “conclude[d] timely Liberto appeal, noted her and the here does not issue rise the level of matter was reviewed a three-judge pan conduct found to pervasive be severe el of this Boyer-Liberto Court. See v. those Fourth (citing Circuit cases.” Id. (4th G.D.C.,Inc., Corp., Fontainebleau 752 Anderson v. F.3d 350 281 F.3d 459 (4th Cir.2002) (“Anderson Cir.2014). subjected, panel was The decision was unani basis, daily on a to verbal assaults of the mous that properly defendants were sort.”); vulgar humiliating most Con summary awarded judgment on Liberto’s Int’l, Inc., Schrader-Bridgeport ner v. 227 claims, hostile work environment in that (4th Cir.2000) (“Ms. F.3d Conner Clubb’s ‘porch “use of term monkey1] [the experienced regular, profound humiliation twice in a period days of two in discussions gender, because of her unlike the male incident, not, single about a was as a mat machine operators.”); Amirmokri v. Balt. law, ter of so severe or pervasive as to Co., Elec. Gas & change the terms and conditions of Liber- Cir.1995) (“[Amirmokri] testified that for employment.” to’s panel Id. 356. The six ... months co-workers abused him al pointed observed that Liberto had “not daily, calling most him names like ‘the case, she, Fourth Circuit nor could terrorist,’ jockey’ local a ‘camel and ‘the finding presence of a hostile work envi ”)). Emir of Waldorf.’ The district court ronment based on a incident.” Id. then invoked proposition Jordan for the Anderson, (comparing Jordan with that an “isolated racist comment” is “‘a Amirmokri). Conner, and cry far ... from an environment of crude however, panel split, was with re- and racist conditions perva so severe or spect to Liberto’s retaliation claims. The they sive that the conditions of alter[] (third [plaintiffs] opinion panel majority employment.’” Id. al validated the Jordan, teration in original) (quoting summary judgment district court’s award 340). claims, F.3d at In concomitantly rejecting on those “if explaining no which, (element two), grounds 3. The awarding district court’s based on her race summary judgment "[g]iven position manage lack of severe or Clubb’s in Clarion’s —the (element structure,” pervasive imputable conduct three hos ment to the em claims) (element four). protect ployer Boyer-Liberto tile work environment and a (element 1:12-cv-00212, activity ed Corp., one of the retaliation Fontainebleau No. claims) (D.Md. 4, 2013), grounds Apr. the sole that had .been WL at *3 ECF —were claims, propounded by supra the defendants. See No. 52. As for thé retaliation Regardless, “indisputable” Part I.B.l. the court acknowl court deemed it that the defen edged employment the balance of the elements Liberto’s dants took an adverse action (element two) accepted they against claims and had been satis Liberto and that there respect fied. With to the hostile work envi was a causal link between her racial harass claims, ronment complaint that meant Liberto had ment and the adverse (element one), (element three). shown unwelcome conduct action Id. at *4. juror Judge King expressed have so well his dis- could objectively reasonable very a hostile envi- narrow presence sent Jordan that our inter- found hold, ronment, today it as we stands pretation what constitutes a reasonable also not have that Liberto could reason placed employees belief this context has that a objectively had an reasonable belief experience racially discriminatory who Boy- existed.” hostile work environment conduct in a classic ‘Catch-22’ situation.” er-Liberto, (emphasis (alteration quotation internal marks omitted). panel majority al- Although the omitted)). may “employee’s opposition an lowed that Following panel’s of the deci- issuance the environ- protected be before hostile sion, banc, sought rehearing en Liberto form,” majority fully ment taken the has in judges regular of our failing any to “present faulted Liberto grant active to peti- service voted Liberto’s that the situation at the Clarion indicators tion. Accordingly, panel’s the decision was ripened into a work

would have hostile vacated, today our en banc Court as- In that the ma- regard, environment.” Id. propriety sesses anew the district Liberto’s case jority equated with Jordan. summary judgment court’s award to the (“Just Jordan, in See we conclude id. 35(c). 4th R. defendants. See Cir. abstract, in the here that ‘while continued repetition of racial kind comments of the II. might made have led a hostile to

[Clubb] environment, allegation no in the We review de novo a district court’s plan that a suggests was in motion [reсord] summary judgment, viewing award environment, create such let alone facts in light most favorable to the likely that such an environment was even Laber v. nonmoving party. Harvey, ” (alterations original) in (quoting occur.’ Cir.2006) (en banc). 438 F.3d Jordan, 340)); see also id. Summary judgment appropriate is “if the (“Based (Shedd, J., concurring) on this genuine movant there is no shows ..., in I agree Court’s decision ‍‌​‌​‌‌‌​‌​‌​​‌‌​‌‌​​‌​‌‌‌‌​​​​​​‌​​​​‌​‌​​​​‌​‌​‍Jordan dispute any as to material fact and the Niemeyer that Judge summary judg- movant is as a judgment entitled to matter ... affirmed ment should on the retali- 56(a). of law.” Fed.R.Civ.P. claim.”). ation distinguished The dissent facts in III. this from those and con- case Jordan “[particularly light cluded of these A. differences, significant ... could Liberto reasonably have believed con- Clubb’s Boyer-Liberto, duct was actionable.” by addressing begin We Liber C.J., (Traxler, concurring to’s hostile work environment claims—an

part dissenting part) out (pointing pertinent endeavor us to outline that leads co-worker Jordan’s made legal including some of principles, those comment not directed at Jordan another or already above. Title VII ren identified called employee, while Clubb Liberto her- practice employment ders it “an unlawful very very self “the same name same employer for an ... to discriminate on two threatening context” consecutive respect days). event, against any individual with ques- [her] also dissent conditions, terms, or compensation, privi correctly tioned Jordan was de- whether (“I leges employment, share in because such indi- cided. See id. the sentiment color, race, sex, abusive”; religion, victual's or nation plaintiff may, but is not 2000e-2(a)(l). to, § origin.” required al U.S.C. An establish that the environ- 2000e-2(a)(l) § by, contravenes ment is “psychologically injurious.” See alia, Harris, requiring inter an African-American 510 U.S. at 114 S.Ct. 367. racially to work in a hostile envi Whether the environment objectively is Bank, ronment. See Meritor Sav. FSB v. hostile or abusive is “judged from per- Vinson, 57, 65-67, spective 477 U.S. of a person reasonable in the (1986). 91 L.Ed.2d 49 A hostile environ plaintiffs position.” Oncale v. Sundowner Servs., Inc., ment exists workplace per “[w]hen the 75, 81, Offshore intimidation, discriminatory meated with (1998). 140 L.Ed.2d 201 That ridicule, sufficiently insult se determination is “by looking made at all pervasive vere or circumstances,” alter the conditions of “may which include the victim’s and create an the frequency of discriminatory con- working duct; abusive environment.” Harris v. severity; its whether it is physically Inc., 17, 21, Sys., 510 U.S. 114 threatening humiliating, or a mere of- Forklift 367, (1993) (internal utterance; S.Ct. 126 L.Ed.2d 295 fensive and whether it unrea- omitted). Thus, quotation marks pre to sonably interferes with an employee’s vail on a Title claim that a workplace performance.” Harris, VII 510 U.S. at hostile, racially plaintiff 23, is “a not, must show 114 S.Ct. 367. It “is and its (1) (2) conduct; that there is unwelcome be, nature cannot a mathematically pre- (3) race; that is based on the ... plaintiffs 22, cise test.” 114 Id. S.Ct. 367. which sufficiently is severe or pervasive to sure, To be viable hostile work alter plaintiffs the employ conditions of environment claims often involve repeated ment and to create abusive work envi See R.R. Passenger Nat’l Corp. conduct. (4) ronment; and imputable which is to the 101, 115-17, v. Morgan, 536 122 U.S. S.Ct. Balt., employer.” City Okoli v. 648 of 2061, (2002). 153 L.Ed.2d 106 That is (4th 216, Cir.2011) (alteration F.3d 220 because, “in direct contrast to discrete omitted). quotation internal marks acts, act of may harassment not be applies same test to a hostile work envi 115, actionable on its own.” Id. at 122 ronment claim asserted under 42 U.S.C. “ 2061. example, S.Ct. For ‘mere utter § Spriggs See v. Diamond Auto ance of an ... epithet engenders which Glass, (4th 179, Cir.2001); 242 F.3d 184 feelings employee’ offensive in an does not 1981(a) 42 § see also U.S.C. (providing sufficiently employ affect the conditions of persons jurisdiction “[a]ll within the of Harris, implicate ment to Title VII.” 510 the United States shall have the same (alteration 21, S.Ct. 367 right every Territory State and to make Meritor, original) (quoting 477 U.S. at enjoyed enforce contracts ... as is 2399). goes The same for “sim citizens”); white R.R. Donnelley Jones v. ple teasing offhand [and] comments.” See Co., 369, 373, & Sons 541 U.S. 124 S.Ct. Faragher Raton, City Boca 524 U.S. of (2004) (recognizing 158 L.Ed.2d 645 775, 788, 118 S.Ct. 141 L.Ed.2d 662 that hostile work may environment claims (1998). however, Importantly, an “isolated 1981). brought § be under incident[ ]” harassment can “amount to

Element three of a hostile work discriminatory changes in the terms requires environment claim a showing if that employment,” conditions incident (internal that “the environment reasonably “extremely would quo serious.” Id. omitted). perceived, perceived, and is as hostile tation marks harassing supervisor’s her report severity of ha victim measuring Barrett v. employer. behavior to conduct, the harasser rassing status Energy Corp., Applied Radiant e.g., super “a may significant be a factor — (4th Cir.2001) (discussing “em epithet] impacts racial [a visor’s use requirement” under ployee’s reporting severely than far more work environment Ellerth). Relatedly, Faragher Rodgers v. W.-S. by co-equals.” use Life liability to seeking impute her Cir.1993). plaintiff Co., 668, 675 Ins. by a co-worker employer for harassment au power and put, supervisor’s “a Simply employ able to establish may not be con harassing invests his or thority report if did not negligence she er’s threatening charac a particular duct with Vance, 133 S.Ct. at 2453 harassment. See Ellerth, Indus., Inc. v. Burlington ter.” neg that evidence relevant to (recognizing 742, 763, include evidence that ligence inquiry would (1998). L.Ed.2d to com respond “failed to employer of the harasser also The status J., (Ginsburg, dis plaints”); id. of a hostile four is relevant element (“An employee may have a senting) repu claim, necessi which work environment among those in his as a tation harasser imput that the harassment proof tates way complaint if makes its vicinity, but no hand, On the one employer. to the able employer will up management, es is the victim’s harassing employee “[i]f liability negligence cape under stan co-worker, only if it is liable dard.”). controlling working in condi negligent was purposes employer’s For —Univ., v. Ball State tions.” Vance liability, qualifies harasser as vicarious the 2434, 2439, -, 186 U.S. S.Ct. co-worker, “if than a supervisor, a rather (2013); see also Ocheltree L.Ed.2d employer the to empowered or she is he Prods., Inc., 325, 333-34 Scollon employment against actions tangible take Cir.2003) (en banc) (“[T]he employer (ma Vance, at 2439 the victim.” 133 S.Ct. negligence in if it knew or may be liable empow jority opinion). An so the harassment should have known about change ‘significant a ered is able to “effect stop to také- effective action to and failed status, hiring, such fir employment it.”). hand, the haras the other where On reassignment with ing, failing promote, to supervisor, the victim’s “different ser is a responsibilities, or significantly different strictly lia apply”: employer The rules change causing significant decision a harassing behavior supervisor’s ble for the ” Ellerth, (quoting Id. at 2443 benefits.’ tangible employment in a if it “culminates 2257). such, As at 118 S.Ct. 524 U.S. action,” liability “may escape but otherwise “authority to inflict supervisor has- the defense, by establishing, as affirmative at 2448. injury.” Id. direct economic (1) reasonable employer that the exercised supervisor, To be any harassing considered prevent care to and correct say as to (2) the final employee need not have plaintiff unrea behavior and that action; instead, tangible employment advantage of the sonably failed to take “subject to may employee’s decision opportunities preventive or corrective Vance, Vance, by higher management.” approval provided.” 133 S.Ct. employer Ellerth, (citing at 2446 n. 8 at 133 S.Ct. (citing Faragher, 524 U.S. 2257). The Vance 2275; Ellerth, at at S.Ct. 118 S.Ct. 2257). one of the haras determined that Ellerth/Faragher de Court The power Faragher “possessed fense, essence, duty sers imposes having direct tive of a person plaintiffs make decisions reasonable in the ”). consequences for his victims” economic position.... following: on the “No one [had

based that, suggested The defendants have be- recommendation”; without his hired been] cause Liberto understood Clubb to be a suspending person firing he “initiated “glorified hostess” and not a restaurant nel”; performance his evaluations “trans 213-14, manager, see J.A. Liberto could increases”; salary into and he “made lated reasonably perceived not have that Clubb’s regarding promotions.” recommendations conduct was severe enough to create a (internal omitted). quotation Id. marks hostile work premise environment. That Additionally, the Court observed evidence, however, ignores re- Clubb if all “even an concentrates deci peatedly effectively communicated individuals, sion-making authority in a few prior 14, 2010, Liberto September likely height it will not isоlate itself from Dr. Ellerth,” Berger’s Clubb had ear and liability could have Faragher ened under See, (Liber- likely e.g., in that Liberto fired. id. at 274 those individuals will have to others, rely deposition testimony on the recommendations of to’s that Clubb “did employer may and “the be held to have power have”); I have did not id. (“I effectively delegated power to take extremely singled felt out and that tangible employment actions to the em my position being was threatened and it ployees on whose recommendations it re (“I clear.”); very id. was told what Ellerth, (citing lies.” Id. 524 U.S. my place always was.... And [Clubb] 2257). 762, 118 it Berger made clear that Dr. would listen anything she said and wouldn’t believe me.”). seeking summary judgment on Liber- theory defendants’ also fails to take claims, to’s hostile work environment into account power Clubb’s assertion of defendants’ sole contention was that there the course of her harassment of Liberto. had been no showing Clubb’s conduct 14, 2010, September On Clubb berated pervasive was severe or enough to alter job performance Liberto’s threaten- before employment Liberto’s conditions of ing get sorry,” “to and “make [her]” [her] produce an abusive work environment. calling porch and then her a “damn mon- counter-arguments Liberto’s included that key” a “dang porch monkey.” or See J.A. genuine there was a dispute as to whether 252-53, following day, 258. The Clubb the harassment September she suffered on obstructed attempted report Liberto’s of 15, 2010, 14 sufficiently was severe. racial Beverage harassment to Food and today, To resolve that issue we need not— Liberto, by telling Director Heubeck “I and, event, on this record cannot— speak you, girl,” need to to little and “I’m determine whether actually Clubb was Li- important more at [than Heubeck].” Id. co-worker, supervisor simply berto’s her thereafter, Immediately 263-64. Clubb separate question a fact relevant to the of Liberto, again reprimanded again threat- liability. the Clarion’s vicarious Neverthe- “get “go ened to and to to Dr. [her]” less, obliged we are to consider how Clubb Berger,” again “porch called her a portrayed authority her and what Liberto monkey.” Finally, at Id. while reasonably thus power believed Clubb’s to Oncale, speaking September with Liberto on 18 be. See 523 at (“[T]he objective complaint, her racial harassment severity 998 of harass- about judged perspec- Manager ment should be from the Elman validated General Clubb’s monkey,” part “been of action “porch has by declaring Clubb authority of assertion claims across the able racial harassment Id. at 324. “boss.” to be Liberto’s cases)). country” (citing As we and sev evidence, considering that we Properly have appeals courts of eral of our sister that Liberto accept must believed—and single no act can “‘[pjerhaps recognized, a could mаke reasonably so—that Clubb the conditions of em alter quickly more discharge decision or recommendation working an abusive and create ployment Berger. Dr. rubber-stamped would be unambig than the use of environment Thus, severity of Clubb’s gauging “nigger” by uously epithet such as racial Li- conduct, been we deem Clubb have presence in the of his subor supervisor a Vance, supervisor. berto’s Cf. ” 242 F.3d at 185 Spriggs, dinates.’ that, pur (recognizing n. 675); 12 F.3d at accord (quoting Rodgers, liability, em employer’s vicarious poses of Houston, 742 F.3d 325-26 Ellis v. if she can may qualify supervisor as ployee (8th Cir.2014); Fannie Ayissi-Etoh v. “sub tangible actions initiate (D.C.Cir.2013); Mae, 572, 577 712 F.3d management” or ject approval higher Reg’l v. Rochester Genesee Rivera on which make recommendations (2d Auth., 11, 24 Cir. Transp. relies). conduct as And we view Clubb’s 2012); Corp., v. GTE Serv. McGinest threatening charac having “particular (9th Cir.2004). 1103, 1116 F.3d perpetrated by super ter” harassment of jury her See El against Consequently, visor subordinate. a reasonable lerth, 118 S.Ct. 2257. could find that Clubb’s two uses especially appropriate viewed “porch monkey” epithet That perspective —whether here, epi racial employed pair Clubb or as a discrete where incident that she cap explicit, angry severe thets to threats instances of harassment —were utilizing superviso verge a hostile envi enough engender U.S.A., Austal, employ Liberto’s ry powers to terminate Adams v. ronment. Cf. L.L.C., Cir. ment. 1253-54 2014) that, (concluding although a Cauca grasp that the of Clubb’s We also use carving “porch mon supervisor’s sian “porch monkey” about chosen slur-— —is ship aluminum of a where keys” into the “nigger.” as the use of the word as odious African-American working with the he was latter Spriggs, 242 F.3d at 185. The act, it an isolated was se plaintiff “was course, epithet, pure “is anathema (ac vere”); Ayissi-Etoh, 712 F.3d Similarly, de- Id. African-Americans.” supervisor knowledging where African-American as a “mon- scribing an epithet deeply a offensive racial “used thereby that a key,” “suggest[ing] yelling Ayissi-Etoh [‘nigger’] when appearance is es- being’s physical human office,” “single that incident get out of the beast[,] sentially jungle a caricature of a have been sufficient to establish might well unflattering; beyond merely goes far environment”); work hostile id. in the ex- degrading humiliating it is (“[I]n J., my concurring) (Kavanaugh, Id.; also, e.g., v. treme.” see Green view, by supervi the n-word being called Minneapolis, 459 Franklin Nat’l Bank alleges Ayissi-Etoh happened sor—as Cir.2006) (8th 903, (recognizing 911 F.3d a racial by itself to establish him—suffices “[pjrimate rhetoric has been used environment.”). ly hostile work and that African-Americans” intimidate summary judgment vacating and other thus ‘monkey’ use of the term “[t]he words,” hostile environ- variation award on Liberto’s including similar

281 claims, identify Anderson, type Conner, ment we this as the of be different from contemplated Faragher Amirmokri, case where the but it is worthy no less aof harassment, “isolated,” though perhaps jury trial.4

can properly “extremely be deemed 788, Faragher,

serious.” See 524 U.S. at B. 118 2275. also acknowledge We is a first for our reject, this Court. We 1. however, any prior notion that our deci- Turning to Liberto’s retalia sions, including Jordan v. Alternative Re- claims, tion Title proscribes VII discrimi Corp., sources were meant to require more against because, nation an employee than a single incident of harassment part, relevant she “has opposed any prac every viable hostile work environment tice made an unlawful employment prac case. Specifically, we observe that by tice this subchapter.” 42 U.S.C. improperly analogized district court this 2000e-3(a). § Employees engage pro (involving epithet matter a racial directed oppositional when, tected activity inter by supervisor) at Liberto her to Jordan alia, they “complain to their superiors (concerning a racist remark that was made suspected about violations of Title VII.” by a mere co-worker and not aimed Bryant Inc., v. Aiken Reg’l Med. Ctrs. 333 employee). Jordan or other See 458 536, (4th Cir.2003). F.3d 543-44 To estab (4th 332, Cir.2006). F.3d 339-40 fur-We prima lish a facie case of retaliation in that, ther note in the cases unfavorably VII, contravention of Title plaintiff must court, compared to this one the district “(1) prove engaged protected she in a perva- harassment was so severe and “(2) activity,” as well as sive that there were no close calls. See took adverse against action G.D.C.,Inc., 452, Anderson v. 281 F.3d 459 “(3) her,” and that there awas causal link (4th Cir.2002) (“The unques- evidence was between the two Navy events.” EEOC tionably sufficient to submit Anderson’s Union, 397, Fed. Credit 424 F.3d 405-06 hostile jury.”); environment claim to the (4th Cir.2005). prima A facie retaliation Int’l, Inc., Schrader-Bridgeport Conner v. § claim under 42 (4th Cir.2000) U.S.C. 1981 has the same 179, (“[Tjhere 227 F.3d elements. See Honor v. Booz-Allen & ample support for the jury finding of Hamilton, Inc., severe or pervasive conduct sufficient to Cir.2004); W., see environment.”); constitute a hostile work also CBOCS Inc. v. Co., Humphries, Amirmokri v. Balt. Gas & Elec. (4th Cir.1995) (“A (2008) (confirming reason- L.Ed.2d 864 “ person

able easily § could find this atmo- 1981 encompasses retaliation hostile.”). claims”).5 sphere to be may Liberto’s case See, suggest jury

4. We do not that a September e.g., should be refer to Liberto on Conner, ("The assessing limited to whether F.3d at 197 more Clubb’s two uses serious slur, more, complement- incidents enumerated here were "porch monkey” without ed numerous additional occurrences jury created a hostile work A environment. isolation, may problemat- have seemed less also would be-entitled to consider other evi- ic, actually but which served to exacerbate the potentially per- dence indicative of severe or situation.”). severity of the harassment, including vasive Clubb's treat- throughout ment of Liberto her short tenure that, although 5. We observe the elements of Clarion; shouting, spitting, at the Clubb's prima § facie Title VII and 1981 retaliation 14, 2010; stalking night Seрtember on the identical, claims are the causation standard girl” Clubb’s use of the term "little to may for a Title VII claim differ from that for a element, however, today, for sev- aspect one of Jordan In the context claim, pro is eral reasons. employee an a retaliation only ... opposes “not when she tected all, “imag- standard First of Jordan actually unlawful un actions employment bigots an- ines a fanciful world where employment actions Title but also der VII repeatedly to belit- nounce their intentions reasonably to be unlawful.” believes [she] outset, it at the tle minorities racial Fed., The Title VII 424 F.3d at 406. Navy hostile work possibility that a ignores may or it be may complete, violation some could evolve without environment 406-07; also see progress. See id. working alter the con- specific intention to Jordan, (“Navy Fed 458 F.3d at 340-41 through ra- African-Americans ditions of seeking pro employee that an eral holds Jordan, cial harassment.” See an ob retaliation must have tection from J., dissenting). Tellingly, (King, 353-54 of all light belief jectively reasonable work environ- intent to create hostile a Title viola circumstances that VII envi- is not an element of a hostile ment happened progress.”); or is tion has claim. ronment (4th Jenney, 327 F.3d Peters v. is at odds The Jordan standard also Cir.2003) (concluding, in reliance on deci hope expectation that em with the VII, pro “to under Title show sions early, be ployees report will harassment activity, in a Title VI plaintiff tected supervisor and no fore harasser is only prove that he retaliation case need action has been tak tangible employment practice opposed an unlawful en, by the El- compelled the victim is had oc reasonably which he believed inter lerth/Faragher defense to make an (alterations and occurring” curred or was i.e., advantage of complaint, nal “to take omitted)). quotation internal marks opportunities any preventive or corrective words, protected is employee other employer.” Faragher, provided See opposes she a hos from retaliation when Similarly, 2275. S.Ct. that, although not tile work environment victim of a co-worker’s harassment formed, fully progress. in order to prudent to alert her continues, that, if the harassment ensure a. necessary negligence can establish the she Vance, liability. 133 S.Ct. at impute See panel majority The in Jordan ruled reporting obligation is essential complained to his 2453. employee where an has ob “primary Title VII’s accomplishing of harass- employer of an isolated incident provide “not to redress jective,” a hostile work which is ment insufficient to create Faragher, harm.” environment, cannot have but to avoid Thus, 806, 118 we have that a Title U.S. at possessed a reasonable beliеf that the victim is commanded progress, recognized absent evi- VII violation was misconduct, investigate, “report plan “that a was in motion to create dence evidence, approach com and then gather or “that such an such an environment” Bald Head officials.” See Matvia v. likely pany to oc- [otherwise] environment was Inc., reject Mgmt., at 340. Island cur.” See 458 F.3d We claims). We not consider § Court’s deci VII retaliation need 1981 claim after the however, de University today, Southwestern Medi because the question sion in Texas — Nassar, U.S. -, respect cal Center v. have raised no issue fendants (2013)-(holding L.Ed.2d 503 causation. applies of causation to Title but-for standard Cir.2001). Further, emphasized succinctly, have Put we the Jordan standard is employee’s “generalized that an fear incompatible Crawford, as well as oth does not excuse a failure to retaliation er directing Court decisions harassment,” particularly ... report provision Title in VII’s antiretaliation be any expressly prohibits where “Title VII terpreted “to protection broad provide against reporting employ retaliation [the from retaliation.” N. Burlington See & Barrett, 240 at 267. See ee].” White, Ry. 53, 67, Fe Santa Co. v. 548 U.S. 2405, 165 (2006); encourage early But than re 126 S.Ct. L.Ed.2d 345 see rather also, porting achieving goal Stainless, vital to Title VII’s e.g., Thompson v. N. Am. harm, avoiding standard LP, Jordan 170, 173-75, 562 U.S. speaking deters harassment victims from (2011). 178 L.Ed.2d 694 Burling As the up by depriving statutory them of their ton Northern explained, Court Title VII protection entitlement to from retaliation. must be read provide protec “to broader protection Such a lack of is no inconse tion for victims of retaliation than for matter, quential for “fear of retaliation is race-based, ethnic-based, victims of [even] leading why people stay reason silent religion-based, gender-based discrimi voicing instead of their concerns about bias nation,” because “effective enforcement and discrimination.” See v. Met Crawford ... only expected could if employees Cnty., ro. Gov’t Nashville & Davidson felt approach free to officials with their Tenn., 279, 129 S.Ct. grievances.” 66-67, See 548 U.S. at (2009) (internal quotation L.Ed.2d 650 (internal quotation S.Ct. 2405 marks omit omitted). fear, Quelling marks ted). protection Court extended “to an Crawford speaks who out about discrimi Finally, we need look no further than initiative, nation not on her own but in comprehend Jordan ‍‌​‌​‌‌‌​‌​‌​​‌‌​‌‌​​‌​‌‌‌‌​​​​​​‌​​​​‌​‌​​​​‌​‌​‍itself to that the Jor- answering questions during an employer’s dan standard is unsuited to purpose. its investigation.” internal See id. at presence, In Jordan’s his made co-worker otherwise, 846. To do the Court breath, a comment “in a ... explained, would “create a real dilemma equated African-Americans with ‘black' any knowledgeable employee.” Id. at monkeys’ apes,’ implied and ‘black Namely, 129 S.Ct. 846. the em -“[i]f savage, predilection acutely bestial sexual ployee reported response discrimination in insulting to of the African-Amer- members enquiries, employer might to the well Jordan, community.” ican See penalize speaking up. be free her for J., (King, dissenting). Jordan then did kept quiet But if she about the discrimina exactly hopes expects: what Title VII claim, tion and later filed Title VII reported employers He the comment to his employer might escape liability [by well racial an effort to avert further invoking Ellerth/Faragher defense].” harassment. Because of his internal com- “[n]othing Id. The Court concluded that however, light was fired. plaint, Jordan precedent sup the statute’s text or our VII, purpose, of the text and of Title course, ports this catch-22.” Id. Of controlling Supreme well as Court be, been, can same and has said about the decisions, surely Fourth Circuit Jordan Jordan, Jordan standard. F.3d at from retaliation. That protection merited (“As J., (King, dissenting) a result of is, decision, today’s employees in this Circuit question, comment made experience racially [the who harassing [w]ithout conduct ”). is the stuff of coworker] are faced with ‘Catch-22.’ Jordan’s 284 in the harassment’s sever or an escalation racially hostile work environ-

which a here, allegations ity. Ayissi-Etoh, ment is made. On (“The J., concurring) for Jordan to more entirely (Kavanaugh, it reasonable that, racially reporting harassment, pervasive believe the less severe monkeys’ (internal comment to his charged be, ‘black vice versa.” it needs to racially opposing omitted)). a employers, he was But an isolat quotation marks work environment. hostile threatening physically ed incident that is if humiliating be closer—even not (citations omitted). or will But, by Id. actionable equal of conduct type stan- devising applying Jordan —to “extremely it is seri on its own because dard, any legal recourse we denied Jordan Faragher, In cir- ous.” See 524 U.S. retaliatory discharge. these for his cumstances, plainly the Jordan standard S.Ct. 2275.

cannot endure. here, an em- Accordingly, as relevant a reasonable belief that a ployee

b. will have occurring environment is hostile work then, this: question, The becomes if on an isolated incident based for determin proper is the standard What physically threatening harassment is an ing employee reports whether an who humiliating. This standard is consistent incident of harassment has a rea isolated only County, also with with Clark but opposing is a hos sonable belief she including Supreme precedent, other Court progress? tile work environment We Burlington Northern. That assessing when the reason conclude Crawford employee it an like protects is so because employee’s of an belief that ableness promptly speaks up who “to attack Jordan occurring is on hostile environment based workplace,” in his rather the racist cancer incident, an isolated the focus should be “thereby al- “remainfing] than silent” and severity on the of the harassment. Cf. [discriminatory] conduct to continue Breeden, lowing Cnty. Clark Sch. Dist. judi- unchallenged,” “forfeiting any while 268, 270-71, 121 S.Ct. Jordan, (2001) remedy might cial he have.” See (looking severity L.Ed.2d 509 J., evaluating (King, dissenting). F.3d at 356 single incident reasonable that incident cre employee’s ness belief sum, under the standard that environment).

ated actionable hostile adopt today guidance with from the we That thus involves factors assessment Court, employee protected judge used to whether a is suf workplace opposing for an isolated from retaliation ficiently purposes hostile or abusive incident of when she reason harassment -specifically, a hostile environment claim'— ably believes that a hostile environ discriminatory whether conduct “is requirement no progress, ment is humiliating, or a physically threatening or plan that a is in for additional evidence Harris, mere offensive utterance.” See create an environment or motion to such 23, 114 course, S.Ct. 367. Of likely that such an environment is to occur. e.g., “simple offensive utterance — will have reasonable belief eomment[],” teasing” or an see “offhand occurring if that a hostile environment Faragher, 524 U.S. at physically threaten the isolated incident is generally will not create a hostile 2275 — humiliating.6 repetition ing or significant environment without Liberto, urges adopt a sup- porting the EEOC us to Notably, curiae 6. in its brief as amicus reject the hostile work environment claims ground that Clubb’s conduct was contested Because the defendants sufficiently not serious to amount to a lone retaliation claims on the Liberto’s environment, hostile but award relief on in engage pro that she did not ground by retaliation claims finding that activity, analysis our is limited to tected Clubb’s conduct was enough give severe jury could find that Liberto whether Liberto a reasonable belief that a hostile there a hostile reasonably believed was environment, although formed, fully not when she progress work environment was in progress. mon reported “porch Clubb’s use key” Applying slur. the standard we C. “yes.”

adopt today, plainly the answer recognized analyzing As we Liberto’s good dissenting Our colleague has a dif- claims, “porch hostile work environment law, ferent view of the controlling the rele- monkey” epithet just is a racial that is not facts, vant and even what our en banc humiliating, “degrading but and humiliat majority say. post does and does not See ing Spriggs, in the extreme.” See J., at (Niemeyer, dissenting). 293-309 Indeed, determined that a we respect With to the hostile work environ- jury reasonable could find that Clubb’s two claims, ment there is disagreement over “porch monkey” uses of were serious Supreme what Court meant this enough engender a hostile environment. Faragher: sentence from conclude, thеrefore, further We must A recurring point in hostile [our environ- claims, the context of the retaliation opinions simple teasing, ment] is that showing made the Liberto has lesser comments, offhand and isolated inci- sufficiently the harassment was severe (unless serious) extremely dents will not render reasonable her belief that a hostile discriminatory changes amount to in the occurring. Accordingly, environment was terms and of employment. conditions summary judgment we vacate the award claims, (inter- on Liberto’s retaliation addition See 118 S.Ct. 2275 omitted). quotation to her hostile work environment claims. nal marks We read that, remand, We also underscore pronounce sentence to that an isolated jury harassment, simultaneously extremely would be entitled to incident of if seri- is, suggested by County although standard the Jordan dissent: decision. That the Court employee engages protected op- that an in a County plaintiff concluded that the Clark had

position activity complains when she about an engaged protected opposition activity in a not isolated incident of harassment that would by reporting an isolated incident that was repeated create a hostile work environment if offensive, merely the Court did so assess- Jordan, enough. often See 458 F.3d at 354 ing plaintiff whether the could have reason- J., ("When (King, dissenting) the cumulative ably believed that incident alone created a properly nature of such an environment hostile environment. See 121 S.Ct. 1509- considered, employees pro- it is clear that are 10. The Court did not consider whether the tected Title under VII from retalia- reasonably plaintiff could have that a believed they oppose repeated, tion if conduct if environment, though even not hostile work could amount to a hostile work environ- formed, event, fully progress. ment.”). When the isolated incident is mere- we need not decide herein whether to em- ly physically offensive—rather than threaten- if-repeated brace the standard for cases in- ing humiliating repeated standard —the if— isolated, volving merely offensive incidents of might appropriate. Contrary well be to the harassment, defendants, because this matter involves argument of the it is not necessar- ily precluded by Court's Clark more serious conduct. unlaw- incidents that are not those isolated ous, a hostile environment. create can ful on their own. use of “isolated But, Faragher’s clinging posits the dissent plural, in the incidents” Meanwhile, in repeatedly the dissent “extremely serious iso- only multiple, observation, ut Faragher’s “Mere vokes may produce a hostile ... lated incidents which epithet of an ethnic or racial terance at 301. Post work environment.” feelings employ in an offensive engenders interpretation sufficiently alter is the dissent’s terms Clearly, it ee would untenable. Title ours—that is to violate Faragher conditions —not illustrate, Faragher, elsewhere ob- 524 U.S. at the dissent To VII.” (internal claim quotation a hostile environment marks omit S.Ct. 2275 serves ted). of overemphasizes the cumulative effect the be ‘based on But the dissent “must ” sentence, acts,’ (quoting point Mor- at one part of that post individual first 2061), at 122 S.Ct. entire sentence while under gan, quoting VII, “[mjere under Title scoring only “to be actionable utterance an ethnic of pervasive’ post ‘severe or at and at epithet,” conduct must be so or racial see actually omitting phrase victim’s] the conditions of point [the ‘to alter another work- feelings and create an abusive offensive in an engenders “which ” (alteration environment,’ course, id. at 294 at ing employee,” see id. 301-02. Of added) (quoting engenders Meri- offensive original) (emphasis phrase “which 2399). tor, Strik- employee” quali at 106 S.Ct. in an is a critical feelings U.S. surely fier, not—and ingly, signifying the dissent does “a mere offensive utter what differentiates “isolat- explain egregious ance” rather than a more slur cannot— “extremely seri- threatening incidents” that must be humiliat “physically ed that is or ous,” may 787-88, acts” that Faragher, from “individual 524 U.S. at ing.” See pervasive.” The dissent also (explaining “severe or that the circum “ ‘a act of Morgan from quotes determining stances relevant to “whether may actionable on its sufficiently harassment not be hostile or an environment ” “ own,’ (quoting Morgan, 536 physically id. at 295 it abusive” include ‘whether 2061), ac- at without threatening humiliating, U.S. S.Ct. or a mere of ” Harris, knowledging import the obvious Mor- (quoting fensive utterance’ 367)). “may 23, 114 rather than “can- gan’s use of not” at And, itself allows that a not.” the dissent event, consistently In the dissent physical incident of vio- single, isolated two minimizes the seriousness of Clubb’s actionable, 301-02, may be id. at lence monkey” slur deem- “porch uses of the attempting without even to reconcile merely offensive as a mat- ing them to be proposition reading Faragher. with its so, the dissent invents a ter of law. To do harassment cannot rise to Relatedly, criticizes us for test under which the dissent “public- it is humiliating of Far- level of unless “failing] portions to note that the out that “it ly humiliating,” points agher part to which were [we] cite[ ] heard direct the appears that no one Clubb lengthier Court’s much discus- either occasion.” See epithet at Liberto on substantively sion—and different mes- also flouts our post at 302. The dissent sage describing type of conduct — light facts in the most at 294. mandate to view the would not violate Title VII.” Post Liberto, that, as a and insists simply the dissent favorable to pursuing position, its fact, being that she was thought “Liberto ignores Faragher’s use of “unless extreme- co-worker, supervi- not her upbraided by ly designate exception serious” to an Regardless by rendering of what else reasonable her sor.” Id. 302. belief that an underway. such environment was status, percеived Liberto about Clubb’s however, ample there is evidence Unfortunately, there are further instanc- showing reasonably that Liberto es of the portrayal record dissent’s inaccurate today’s decision. For example, although possessed that Clubb the one su- believed we observe herein that our “pro- standard power that mattered: pervisory power an employee tects like Jordan” from retali- through to follow on her threats to have ation, the dissent asserts that we nowhere rubber-stamp dis- Berger Dr. Liberto’s “indicate that plaintiff Jordan had a charge.7 reasonable belief that a hostile envi- taking shape ronment was claims, the time he As for the retaliation dissent reported his co-worker’s racist comment to “gratu- accuses our en banc supervisors.” post So, his itously adopt unprece- proceeding] clarity the sake of (though too late to dented standard ... that is much broader himself), benefit Jordan in plain we state necessary than to resolve Liberto’s jury terms that a applying our standard Post at 303. The dissent’s ac- claim[s].” could have reasonably found that Jordan premise cusation rests on the false that we believed he opposing was a hostile environ- of law that a hold as matter hostile work ment in progress. That is because the In reality, environment existed. we sim- “black monkeys” comment uttered to Jor- conclude that a could ply jury reasonable “porch monkey” dan—like the slurs aimed respect find for Liberto with to her hostile readily phys- Liberto —could be deemed possible environment claims. Because it is ically threatening humiliating. or up Liberto will instead come short at are entirely unswayed by We the dis claims, analy- trial on those our retaliation warning that our gen sent’s standard “will Indeed, empha- sis is essential. we have widespread litigation erate many over the jury may that a sized find Clubb’s workplace offensive comments made ev insufficiently conduct was serious to en- eryday employees find to be humiliat environment, gender a hostile but severe ing.” post See at 304. Our is standard enough protect solely Liberto from retaliation implicated when suffers Notably, although 7. the defendants them- evidence from the Clarion's own General tant argue selves failed to in the Manager, district court that the dissent chastises us for consid- actually supervisor, Clubb was not Liberto's ering glibly apparent what it terms "Elman's the dissent wanders that issue and de- into understanding relationship of Clubb’s to Li- "highly clares it doubtful that Clubb ... post berto.” at 301 n. *. See qualify supervisor.” would as Liberto's Meanwhile, good two other of our col- post (describing employ- Clubb as "an leagues deem Clubb to been Liberto’s have only having ee whose influence comes from thereby mere co-worker and conclude that company’s the ear of the owner becausе of vicariously the Clarion cannot be held liable personal friendship”). their The dissent's post for Clubb’s harassment of Liberto. See characterization of Clubb is contradicted L, (Wilkinson, concurring part at 289-90 record, portions including Septem- L). dissenting part, joined by Agee, Elman, ber 2010 email in which the Clar- colleagues only disregard Those evidence Manager, responding ion's General recounted supervisor, that Clubb was Liberto’s but also complaint by to Liberto’s racial harassment urge summary judgment affirmance of advising her that she and Clubb "need[ed] respect award with to the hostile environment together professional learn to work on a level ground on a that the defendants failed and that J.A. claims [Clubb] [Liberto’s] boss.” grappling impor- preserve 324. than with that to raise or in the district court. Rather words, accompli a fait other ment is oppositional in an engaging

retaliation —in unwilling or employers powerless are only by show be satisfied activity, and can pervasive into hostili- prevent a descent objective reasonableness ing the ty.” Id. at 308. incident that an isolated belief employee’s threatening physically of harassment was dissent, pro- we seek to Contrary to the reject also the dis humiliating. We or expectation ingrained hope mote the — our “standard will prediction sent’s rights Supreme laws and the in our civil questions” and many new surely generate interpreting them —that decisions Court harass hand-wringing” over which “much early, report will harassment so employees sufficiently severe. ing qualifies conduct employers stop can it before it that their juries Judges See id. a hostile rises to the level of environment. humiliating, what is identifying have been powerless regard in that Employers are threatening or physically is as well as what unaware that harassment only they if are offensive, at least when merely since employees But will under- occurring. explained Harris Court wary reporting abuse for standably be workplace whether how to determine today’s deci- fear of retribution. Under purposes or abusive for objectively sion, hostile reasonably perceive employees who claim. See 510 a hostile environment physically threatening an incident to be 23, 114 367.8 humiliating do not have to wait for further they from help before can seek harassment perplexed dismayed Finally, we are exposing them- employers their without that, on the one assertions by the dissent’s selves to retaliation. hand, every right to of- had “Liberto of a racial by epithet use fended Clubb’s IV. reasonably in responsibly and and acted foregoing, we vacate the Pursuant to the incident,” post see reporting the court and remand judgment of district hand, that, spoke the other Liberto proceedings other and further as for such thereby deprived herself up too soon and may apрropriate. retaliation. As the dis- protection from AND REMANDED VACATED it, although reporting sent would have do, thing slur was a sensible Clubb’s WILKINSON, Judge,' Circuit with have for additional Liberto should waited AGEE, Judge, joins, whom Circuit much harassment to occur—but not so dissenting part: in concurring part and avoid harassment the Clarion could a lack time- liability vicarious because of in this Title alleged The remarks VTI Concomitantly, con- ly every notice. the dissent that Americans of action are ones a funda- so tends that our decision “manifests race all walks of life would find assuming does not employers, wounding mental distrust of that the word offensive uttered, them. It is incidents humiliating epithet begin is to describe once these, they may appear, as a hostile work environ- such as small development J.). agree, warnings part, joined by Agee, We cannot colleagues 8. Two of our issue dire however, by simply protecting an em- may "employers today’s cause decision who, example, reports a race-based police,” "employees ployee speech [to [to] become another,” reasonably believes to be estranged comment that she from one and "com- be] humiliating, threatening we analogues physically panies private become sector [to] (Wil- segregate the post might silence or somehow the surveillance state.” See kinson, J., concurring part dissenting workforce. prevent larger society dangers our from be- down the road. Holding employ coming place of welcome it needs to be. ers liable for by remarks made one of their employees where the majority points to no good by rights done the civil laws prior notice to employer prior and no has been enormous and one aim of those employer awareness of Clubb’s racist ten it, laws, I is to make the as understand open-ended. sure, dencies is all too To be workplace an environment where Ameri- employer an “directly liable” for a co race, sex, every religion, cans of or nation- worker’s unlawful if harassment “the em origin actually al would want to work. 42 ployer negligent respect to the § 2000e-2 U.S.C. and 2000e-3. offensive behavior.” Vance v. Ball State say good workplace To that a environ- — Univ., U.S. -, 2434, 2441, ment is poisoned the kind of remarks (2013). 186 L.Ed.2d 565 But while the alleged here is understatement. Who majority tries to appear make it though get up would wish to and come to work some other evidence of malfea morning encountering each fearful of this may sance be somewhere in the offing, see during sort of slur the course of the work- Maj. Op. at 281 n. opinion its wholly ing day? focused on the two incidents and remarks There is a countervailing danger play at issue and intent on directing a trial cases, however, namely these that we where the element of imputed employеr workplace imbue the with such strin- liability placed has not been genuinely ' gent hostile work require- environment dispute. employers ments that speech po- become hazy ground Whatever may Clubb occu- lice, employees are estranged from py between co-worker supervisor, another, one and that companies become hazards of imposing employer liability for private analogues sector of the surveillance remarks made mid-level workers in state. workforces that might number in hun- Where and how to strike the balance? dreds or pushes even thousands imputed I this case would decline to hold the liability beyond well the more cabined cir- employer vicariously liable on the merits of physical injury cumstances of and actual claim, the hostile I work environment but adverse actions such as fail- Boyer-Liberto’s would allow retaliation promote ures to discharge. Burlington fact, proceed. claim to were the truth White, N. & Fe Ry. Santa Co. v. 548 U.S. complaint of her ascertained the em- 53, 67-68, 2405, 126 S.Ct. 165 L.Ed.2d 345 ployer, the “retaliation” should have taken (2006). case, In this roughly there were the form of Boy- Clubb’s dismissal and not seventy-five people in the hotel’s food and er-Liberto’s. beverage department alone. J.A. 135. utterances, Having liability hinge upon

I. of which companies prior have no aware- As to the merits of the hostile work ness and which yet reported no victim has claim, them, environment I poses would affirm the to more than the threat of judgment open-ended district court on the liability. liability Because grounds that any hinges utterances, other result would unanticipated on it will stretch the notion of vicarious employers protective tend to drive as a liability past breaking point. There measure into the role of censors of all may be an temptation speech conceivably understandable give even could Raton, land hard on this employer, Faragher City but there are offense. v. Boca 2275, being subject to retalia- 141 vilification without 775, 788, S.Ct. 524 U.S. (1998) tory An must feel safe lia- (rejecting employer actions. L.Ed.2d 662 bringing an incident of this and secure lan- of abusive sporadic “the use bility for management. attention of nature to the jokes, and occasion- guage, gender-related (citation quotation marks teasing” al moreover, Any management, decent omitted)). assuredly expect the mayWe seemingly wish to know of such an would codes, which, if speech workplace arrival of Employers under its roof. occurrence long already will not be present, for em complaint procedures must have v. Sundowner coming. Oncale early stage-before Offshore to utilize at an ployees 998, Servs., Inc., 75, 80, 118 S.Ct. 523 U.S. intensify and harassing environments (1998) (noting that Title 140 L.Ed.2d Faragher City Boca spread. civility general “a was not meant VII Raton, 775, 806-08, 118 S.Ct. 524 U.S. workplace”). Such for the American code (1998); 2275, Burlington 141 L.Ed.2d 662 high price hand is a heavy employer Ellerth, Indus., Inc. v. 764- it one majority’s holding, and is pay for the (1998). 141 L.Ed.2d 633 118 S.Ct. Court congruent that is not adequate are due notice so that Employers freedoms. or consistent with our rulings may off both the hostile work they head liability. resultant

environment and II. emergent benefit when an hos Employees nipped in the bud. tile work environment claim, an As to the Title VII retaliation that a here, too, show that her belief employee must But there is a balance to be or is com- work environment exists annual Title hostile struck. The number of VII objectively reasonable. into existence is ing charges retaliation filed with the EEOC Breeden, 532 Cnty. Sch. Dish v. 1990s. nearly See Clark has doubled since the late — 268, 270, Nassar, 149 L.Ed.2d U.S. Med. Ctr. v. Univ. Tex. Sw. (2001) curiam) -, 2517, 2531, the ob- (per (applying (2013). standard); Navy Fed. jective EEOC v. Perhaps L.Ed.2d 503 American Union, 406-07 likely Credit employers have become twice as Cir.2005). 1997, but against employees retaliate since I it. One cause of the dramatic doubt presented Under circumstances very may of retaliation claims increase here, Liberto’s belief that a hostile work away chipping be a sub voce well coming into environment existed or was objectively reasonable belief standard. The objectively reasonable. existence (suggesting that “less- See Id. 2531-32 alleged spoken to have been words the causation standard” for retalia- ening Moreover, were abhorrent. Clubb Clubb to the claims “could also contribute tion occasions epithet separate uttered the claims”). majority’s of frivolous filing it at Liberto. personally and directed costs, very “raise the approach may well the entire course of conduct sur- And an em- reputational, financial and both remarks was abu- rounding the offensive objectively is no true where there ployer” part This conduct on the of Clubb sive. in the existence of a hos- reasonable belief enough bring Boyer-Liberto to under workplace. tile Id. 2532. provi- of the anti-retaliation protection objective allowing of reported dangers Title she it. The sion of VII when however, go beyond far slip, to expert is not an hostile standard An costs to com- reputational financial and Any environment law. reasonable severe, subtle, if side effects report panies. feel to this sort of Two person must free Boyer-Liberto trammeling of free “could feel her breath” and discussion: warrant shouting workplace “spit caused Clubb on [her] and the construction speech face.” J.A. the races and barriers between sexes.. thing. greater Actions are one The dan- A. ger liability lies in predicating on remarks. on an If courts lessen their insistence here, say Not language, because Clubb’s in a hostile objectively reasonable belief least, very played “no part essential' reporting of permit environment any exposition Chaplinksy of ideas.” [in] perceived slights manner of to warrant all 568, 572, Hampshire, v. New 315 U.S. protection, party we become Title VII (1942). 766, 86 L.Ed. 1031 But there S.Ct. workplace of the as a zone

the creation many will be instances of uncomfortable values have where First Amendment workplace that cannot on that speech basis of a ceased to be observed. the context actionably be deemed hostile. It has al- claim, it “cru- work environment hostile ways justify sup- been the case that “[t]o objectively per- cial” to use an reasonable pression speech of free there must be rea- ensure that courts and son standard “to ground sonable to fear that serious evil ordinary socializing juries do not mistake speech will result if free is practiced.” for actionable discrimi- workplace” 357, 376, Whitney California, v. 274 U.S. nation. Oncale Sundowner (1927) (Bran- Offshore 641, 71 L.Ed. 1095 S.Ct. Inc., 998, Servs., 75, 81, 118 S.Ct. 523 U.S. added). déis, J., A concurring) (emphasis (1998). 140 L.Ed.2d 201 The same is true speech central “function of free under our for retaliation claims. system government dispute.” is to invite 1, City Chicago, Terminiello v. con- People will—and should—discuss (1949). 4, 894, 93 L.Ed. 1131 Un- of those troversial matters work. Some ..., the- reme- less the “evil” is “imminent subjects may pertain gen- well to race and dy applied speech, to be is more not en- Disagreement der. on these and other 377, Whitney, forced silence.” 274 U.S. at robust, may heated and but it matters be (Brandéis, J., concurring). 47 S.Ct. 641 reportable. should not on that account be expression speech More means insensitive People may say things also offensive in the workplace in the should be countered and Distasteful, offensive, workplace. even But the bedrock denounced as such. speech is unfortunate but it is often a meaning of the First Amendment will be “necessary effect[] side broader expression if the of disfavored or ob- lost enduring values” that the First Amend- jectionable positions on sensitive and vola- California, protects. ment Cohen v. subjects reportage 15, tile issues become 91 S.Ct. 29 L.Ed.2d 284 U.S. every If becomes (1971). and sanction. co-worker premise of the First Amend- informant, this environ- potential does people leap quick- ment is that we as a Johnson, ment not in time come to resemble societ- ly suppression, see Texas v. than our ies other own? (1989), may occur L.Ed.2d 342 which well initiatives need not Anti-discrimination if for mere reportage punishment speech. free The values be at war with speech omnipresent possibility. Amendment protected by the Fourteenth need not inconsistent with those safe- alleged The remarks here reached the by guarded by things happen the First. Good point accompanied of abusiveness employ- in intimidating body people, company lan- when this case threatening and ees, among themselves. closely things talk out guage. approached Clubb so Bank, Vinson, v. Meritor Sav. FSB decision-making discourse Collective 57, 64-67, 106 S.Ct. 91 L.Ed.2d holds dear. U.S. the First Amendment a matter (1986), States, kept proper perspective, in Abrams v. United (1919) companies becoming from helps prevent it 63 L.Ed. 1173 ethnic, racial, places for (Holmes, J., that “the intolerable dissenting) (noting Hostile environ other minorities to work. is better reached good ultimate desired judicially, has also been de the best test of ment doctrine free trade in ideas—that veloped almost in the manner of federal thought get of the to- power truth is the wrong law. It would be not .to competition in the common accepted itself market”). development this with one of I with the infuse agree our enumerated constitutional greatest Title of “early achieving vital to reporting [is] values, speech. Espe that of freedom of avoiding Maj. Op. harm.” goal of VII’s cially speech when the concerns current majority nowhere acknowl- 283. But the issues, public It affairs or other courts must dangers over-reporting. of edges the Snyder Phelps, take notice. See casually so toward draconian drifts ever 1207, 1215-16, 443, 131 S.Ct. for mere utterance and U.S. consequences (2011). L.Ed.2d 172 The framers “be blindness to First Amend- speech. Such public politi a lack faith in lieved ... discussion is a bespeaks 'ment values duty.” Whitney, cal 274 U.S. at lateral discussions which would no doubt (Brandeis, J., concurring). in and S.Ct. 641 Civic lead nowhere the case Clubb may preferable requires be far health Americans be plaintiff, but which freedoms, public in of their in hair-trigger reporting working out fearful whether venues, every private especially that occur in a free misunderstandings precious speech. dom so as the exercise of workplace. majority unfortunately takes less than The ‍‌​‌​‌‌‌​‌​‌​​‌‌​‌‌​​‌​‌‌‌‌​​​​​​‌​​​​‌​‌​​​​‌​‌​‍way in their' own are our Workplaces recognition token of this value. It does Kathy may squares. talking town John dangers for future courts the not herald in more fruitful than John prove the end taking workplace the American down a running higher authority to a to have Ka- path. more autocratic objec- An thy’s point-of-view condemned. test, subjective geared tive not a standard B. sensibilities, heightened to the most best objects rights of civil laws are to preserves speech the balance between free discrimination, bring Americans and anti-discrimination law. The fact eliminate incidents, here, plainly beyond together, are and break down barriers. This some as crucial, Congress has pale hope purpose not mean we surrender remains does yet our schools reaching repeatedly of workers hu- attested. And other instances neighborhoods understandings resegregating. mane discussions with are Our many very apart. are far Turning someone as a all too instances themselves. may where racial inter- workplace of first resort or on insubstantial The course frequent, and it will be grounds may perpetuate resentment and actions are most pushes remaining if this last venue bring prospect employee dialogue to sad law separatist habits that else- into the more premature end. frequently prevail. where too is not The law of hostile environments this. Title VII statutory provi- guards against Title YII specific anchored however, if Rather, it counterproductive, it derived from Title will be sion. discrimination, workplaces over-reliant on general prohibition of countenances VII’s interest, reportage. certainly not surveillance ours as a nation or employee rather than system erects barriers as individuals in the simple Such search for world, the them. In an ideal dismantles friends. We must not become others to spontane- and sexes would interact races ourselves.

ously, ways. in natural and creative There single way correct to behave

would be no III. around, to, thing say correct no The important search for balance is in gender. race or are worker of another We law, lest the aims of one of America’s people beings commonali- —human —with greatest compromised Acts be by a need- profound superficial ties far more than lessly censored suspicious workplace. differences. I believe majority right allowing in majority surely agrees.

The Yet fo plaintiffs proceed, retaliation claim to but cusing “bigots” on sick who “belittle racial wrong affirming the district court on minorities,” Maj. Op. (quoting at 282 Jor the merits of the Title claim. VII More Corp., v. Alt. Res. 353— dan than I regret my friends in the Cir.2006) J., (King, dissenting)), the majority recognize did not do more to majority generous potential sells the more sides, equation this is an two area of most Americans short. with more than one dimension. The har- mony of balance is nowhere to be found. must not contribute an added

Title VII when we communi- element inhibition NIEMEYER, Judge, dissenting: Circuit cate with those of another sex or race. yet precisely And I fear that is what will that an employee’s holds objectively if the reasonable stan- happen “porch monkey” use the term twice in a in favor of retaliation pro- period, talking dard is diluted 24-hour when to a fellow any report, marginal, tection for however employee single workplace about inci- trivial, dent, The Supreme workplace unsubstantiated. transformed the into a “pro- racially thereby has made clear that Title Court VII’s hostile environment and discriminatory change hibition of harassment on the basis of sex effected a in the requires asexuality androgyny neither nor terms and conditions of the offended em- Oncale, workplace.” ployee’s employment, in the in violation of Title every ambigu- Rights 118 S.Ct. 998. But where of the Civil Act of VII §§ It fur- unintentionally ous or insensitive remark is U.S.C. 2000e to 2000e-17. holds going reported upstairs, employees to be ther the offended could naturally will seek to cluster with therefore have had a reasonable belief those look, act, think who “like themselves.” “that a hostile work environment [was] ante, added), community progress,” (emphasis Instead of an interactive can to the recog- opposition which individual attributes such her incident nized, understood, celebrated, justified against em- retaliation claim her braced, unprecedented the result will be a more It these employer. fractious reaches and dis- working relying and walled-off environment where conclusions on selected stereotypes persist. Keeping snippets Faragher City noxious in- from tilled Raton, maintaining terracial distance and interra- Boca which, course, (1998), according cial silence will the safest 141 L.Ed.2d 662 become way majority, justify the easiest to avoid a blot on one’s to the the conclusion harassment can record that comes even with a co-worker’s “an ‘isolated incident’ of discriminatory changes report. erroneous This road is no one’s ‘amount to 294 major very by relied on the paragraph if the employment,’ of

terms and conditions ” serious,’ ante, ity: ‘extremely that incident is 788, at Faragher, 524 U.S. (quoting Inc., So, Systems, in Harris [v. Forklift 2275). 118 S.Ct. 17, 367, 126 L.Ed.2d 510 114 S.Ct. U.S. (1993)], in explained that order 295 we however, the support does not Faragher, statute, a to be actionable under the it, majority’s reading of and the majority’s objectionable environment must sexually prece- otherwise without are conclusions objectively subjectively and of- be both First, very quotation relied the dent. fensive, person one that a reasonable Faragher Court majority, the on abusive, one find hostile or and would using noted “isolated incidents” — to be perceive that the victim fact did serious,” “extremely if sat- plural might,— to determine so. We directed courts severity requirement for racial isfy the sufficiently an environment is whether 788, 118 S.Ct. 524 U.S. harassment. looking at all the hostile or abusive by holding, the ma- To rationalize its circumstances, including frequency jority plural thus reads the “incidents” conduct; discriminatory of the its severi- inci- only “single to refer to a Faragher threatening ty; physically whether it is dent.” humiliating, or amere offensive utter- ance; unreasonably it in- and whether Second, ma importantly, more employee’s per- terferes with an portions of jority fails to note recently, explained formance. Most we of the Faragher part to which it cites were prohibit genuine that Title does not VII' lengthier much discus Supreme Court’s ways differences in the but innocuous substantively mes sion—and different routinely men and women interact with type of conduct sage-describing members of the same sex and violate Title VII. that discus would not recurring point sex. A in these opposite sion, opinions the Court drew on several simple teasing, is that off-hand opinions noted, appeals courts of from the (un- comments, “ and isolated incidents instance, that the ‘mere utterance anof serious) extremely not amount less will epithet engenders which ethnic or racial discriminatory changes in the terms feelings employee’ in an would offensive , employment. and conditions of sufficiently and conditions alter terms added) (citations (emphasis, Id. at 787-88 Far employment to violate Title VII.” omitted). marks quotation and internal 787, 524 118 S.Ct. 2275 agher, U.S. added) Rogers v. (emphasis (quoting abridged Faragher snip- Without (5th EEOC, Cir.1971)); 454 F.2d 238 capture which fail to that case’s pets, Bank, also Meritor Sav. FSB v. Vin see larger message, is left with son, 106 S.Ct. holdings virtually support no for its (1986) (same). The Court also certainly language L.Ed.2d from the of Title none approvingly any Supreme cited text discrimina decision con- VII or Court observed, Indeed, that “a part, struing tion law which' it. Court not, alone, that, to be ac- sensitivity steadfastly lack of racial maintained does has VII, conduct must be amount to actionable harassment.” Id. tionable under Title as “to alter the pervasive” & Paul so “severe or (quoting Barbara Lindemann Grossman, victim’s] conditions Employment [the Discrimination (3d ed.1996)). working environ- create an Finally, the Court abusive Law 349 Meritor, rulings in ment.” summarized some of its earlier (alteration original) (quoting Hen in the process committing an employ- Dundee, City practice son v. ment that was made unlawful Cir.1982)) (internal quotation 2000e-3(a). marks § Title VII. See 42 U.S.C. omitted). And because hostile work envi I respectfully pertinent submit that the “very ronment claims their nature in law, applied when to the facts in the rec- conduct,” repeated the Court has volve[] ord, requires negative response a to both recognized further ac —-and questions. I would therefore affirm the ante, knowledges, see at 277 —that “a sin district court’s similar conclusions. gle may act of harassment not be action

able on its Nat’l R.R. Passenger own.” I 101, 115, Morgan, Corp. Reya Boyer-Liberto, an African-Ameri- (2002). 153 L.Ed.2d 106 In woman, can began working at the Clarion stead, such claims must be “based on the (the Resort Fontainebleau Hotel “Clar- cumulative effect of individual acts.” Id. ion”) in City, Maryland, Ocean August on clear, absolutely To be this case does not 4, 2010. The Clarion a typical ocean- present question of whether an em- hotel, front restaurants, bars, with several ployee should be allowed to call a fellow a nightclub, facilities, and banquet and it employee “porch monkey.” a a ra- Such typically employs about 75 in people its cially derogatory highly and offensive term Food Beverage Department. Liberto in belong workplace, does and I morning started as a hostess the hotel’s condemn it. Nor present does this case restaurant, main but she proceeded to question justi- of whether an employee, work in many of the hotel’s other Food fiably by being offended a “porсh called and Beverage positions, including serving, monkey,” report should such an incident to bartending, working banquets. Ac- Rather, management. the issues here are cording Berger, to Leonard the Clarion’s substantially narrower. owner, struggled Liberto in all of the posi- assigned, tions to which she was and he by principles Framed of well-established terminated her September law, question the first in this case is 21, 2010, because she “had failed at four jury whether a reasonable could find that “[tjhere jobs” and places no more [were] employee’s “porch use the term mon- for her.” key” twice in a 24-hour period, when talk- ing to a fellow about a During employment, her Liberto inter- incident, objectively Clubb, woman, could be considered so acted with Trudi a white severe as to transform workplace longtime into who was a employee at the Clar- environment, racially thereby hostile Berger’s. ef- ion and a friend of Clubb fecting discriminatory change part-time in the worked an evening restaurant terms and conditions of her employment. manager, and she responsi- described her ifAnd we were to conclude that a “getting things going reason- bilities that role as jury early able would be unable to make such a for the part day, seeing finding summary judgment on the well-equipped ready record the crew is case, question customers, this then the next present get- would themselves to the jury be whether a reasonable could ting ready, getting find the tables the buffet employee engaged ready, the offended ... overseeing all the items that done,” protected activity reported when she generally helping need to be conduct reasonably because she believed directly reported out as needed. Clubb Heubeck, her had committed or was Richard the Clarion’s Food and But the incident cen- Director, El- trouble for Liberto. as well as Mark

Beverage occurred more than a tral to this action man, Manager. Clubb hotel’s General decisions, after had been hired. and month Liberto hiring participate did not in the record is no indication there 14, Li- night September Late on the demote, fire, or oth- authorized she was serving drinks when customer berto was tangible employment actions take erwise Hula,” that was a “Hula a cocktail ordered members of the Clarion’s against other time-consuming to make. particularly staff. the bartender at the restaurant’s When drink, make the event, bar refused to primary the exact nature whatever Clarion, to the Clarion’s Liberto walked around Liberto role Clubb’s to order the drink there. Once “pub that she bar” during deposition testified ready, passed Liberto supervisor a the drink was Clubb to be never understood sure, way back to through the kitchen on her manager. To be Liberto or even a room, a Clubb, dining though even that was had worked at who believed route, as to' avoid the longer and had a much so years for close to 20 the Clarion who refused to make Berger, primary had bartender relationship with longstanding so, she, the “Hula Hula.” As she did Clubb employee, a brand-new did power out to Liberto that she was not yelled But stated that she not have. Liberto kitchen, through the but manager supposed a to cut to Heubeck and to reported then adamant did not hear Clubb. Clubb Avery, and she was Liberto named Jamie preparing as she was thought approached as her Liberto that she never Clubb check, Instead, yelling customer’s at Liberto for “understanding her manager. basically ignoring calling her and Liberto “deaf.” was that she was ... Clubb to Liberto said that the distance between the Berger’s of Dr. that was there friend enough that just smiling two was close she could “feel greet people and to be words, spittle breath” and that from that Clubb was [Clubb’s] face”—in other Indeed, hitting her. Li- Clubb’s mouth was Liberto merely “glorified hostess.” every- “okay,” large- her head and said but that she was “told shook berto stated work, ly her which made Clubb just should “humor” Clubb went about one” that she episode As the concluded Avery specifically agitated. told her “not to more and that walking away, was Clubb said did not have and Clubb go [Clubb] to because [Clubb] “going was to make [Liberto] to do voids or make decisions.” that she power that, sorry” and called Liberto either a “damn although she listened explained She Clubb, dang, porch monkey.” only did so to the extent to she to respectful had “to be and listen she beginning Septem- of her shift on At the And while everyone with.” [she] work[ed] to Liberto went to Heubeck’s office ber occasionally ask Liberto or Clubb would During conduct. complain about Clubb’s tasks, testi- employees other to do Liberto in and to meeting, Clubb came said ... regular that “it was not a routine fied Liberto, you, speak “I need to to little employees other ]” Clubb [for to] instructf that she was girl.” Liberto told Clubb did not correct her work. Clubb Heubeck, with but currently speaking was “more im- responded after she had she Liberto testified soon Clubb Clarion, then sat portant.” Liberto and Clubb working at the she felt started office, Heubeck’s down at a table outside though “singled had out” and [her] Clubb for “abandon- scolded Liberto advantage had threatened to take her Clubb previous night. As ing make station” the personal relationship with'Berger [her] to said that but he meeting up, this broke Clubb asserted that his decision to fire her going go Berger” nothing to Dr. “had “she do with her complaint” Using “teach a lesson.” a raised [Liberto] and was instead based-solely poor on her voice, again “porch called Liberto a performance. Clubb monkey.” charge Liberto filed a of discrimination later,

A couple days September on Equal with the Employment Opportunity spoke by telephone Liberto (“EEOC”) Commission September on Human Nancy Berghauer, the Clarion’s 2010, alleging discrimination based Director, regarding Resources Clubb. race and retaliation based on her engage- Berghauer typewritten made notes of the ment in protected activity, in violation of conversation and forwarded them to Ber- Title VII. The EEOC issued Liberto a ger day, September and Elman. The next Sue, Right Notice of following which 18, Elman met with Liberto discuss Liberto commenced this action. Berghauer’s situation and to ensure that In her complaint, Liberto asserted four day, notes were accurate. That same claims for relief: two counts of racial dis- Heubeck met with Clubb to discuss the crimination virtue of a hostile work incident, and Clubb denied Liberto’s alle- environment, in violation of Title VII gations. Heubeck nonetheless issued (Count I) (Count § U.S.C. warning. Clubb a written III), retaliation, and two counts of also When, 17, September Berger on learned (Count II) violation of Title VII and Li- about the conflict between Clubb and (Count IV). § 1981 Liberto filed her Title berto, he asked him update Heubeck to against only VII claims the Fontainebleau on,” “exactly going what was and he also Corporation, trading as the Clarion Resort job asked about performance. Liberto’s Hotel, Fontainebleau but named both the reported Heubeck far Liberto had so Corporation Berger Fontainebleau as performed poorly every job to which she § defendants in her 1981 claims. afternoon, assigned. had been The next Following discovery, the defendants Berger met with Elman to review Liber- filed a summary judgment. motion for to’s work file and discovered that Liberto Taking deposition testimony Liberto’s as had failed the bartending Clarion’s test true, the district court held the offen- “miserably.” Berger When indicated sive support conduct was too isolated to thought he the Clarion should terminate Liberto’s claims for discrimination and re- employment, Liberto’s Elman and Ber- taliation. Accordingly, by order dated ghauer doing indicated that so “could cre- 4, 2013, April the court judgment entered ate situation” because of Liberto’s com- in favor of the appeal This defendants. plaint. Berger replied that “there’s not followed. going any good go. to be time to let her The situation will be there.” After further II Heubeck, consulting Berger made the final decision to terminate employ- holding Liberto’s that the district court erred ment, summary and Liberto was notified of the deci- entering judgment for the September sion on 21. Clubb was not defendants on hostile work Liberto’s envi- decision, claims, involved in only learning of it ronment extends Title Berger a week later. acknowledged liability beyond his the statute’s textual VII deposition complaint scope beyond Supreme Liberto’s what Court prompted record, him recognized construing to take a look at her the statute. has held, that the work must show plaintiff well estab are principles governing pervaded so discrimi it “an unlawful environment was makes Title VII

lished. ... and conditions of nation that the terms practice employment altered”); with Burlington individual against employment were to discriminate terms, Ellerth, 742, 752, condi compensation, Indus., to his Inc. v. 524 U.S. respect (1998) because tions, employment, 2257, privileges or 141 L.Ed.2d 118 S.Ct. race, color, religion, individual’s harassing of such conduct only (recognizing 42 U.S.C. sex, origin.” national or can effect a pervasive” that is “severe or 2(a)(1). obviously provision “This § the terms alteration[] “constructive 2000e— respect discrimination prohibits employment” and thus be conditions that have direct eco decisions VII”); Title On “cognizable come under termination, consequences, such nomic cale, 81, (empha 523 U.S. at 118 S.Ct. 998 demotion, Vance v. Ball pay cuts.” “prohibition Title sizing that VU’s — 2434, Univ., U.S.-, State only ... forbids behavior so harassment (2013). Since 186 L.Ed.2d objectively offensive as to alter the ‘condi recog however, has Court Har employment”); tions’ of the victim’s only “not covers provision nized that this (“When ris, 114 S.Ct. 367 U.S. in the narrow con and ‘conditions’ ‘terms’ with discrimi workplace permeated sense,” v. Sundowner tractual Oncale Off intimidation, ridicule, insult natory Servs., Inc., 75, 78, 118 shore sufficiently pervasive that is severe or (1998), 998, 140 L.Ed.2d 201 but also employ the conditions of the victim’s alter working “practice creating forbids the working create an abusive envi ment and ... dis heavily charged with environment (citations ronment, Title VII is 'violated” Meritor, crimination,” omitted)). marks quotation and internal F.2d at (quoting Rogers, 454 S.Ct. 2399 demanding requires standard thus This 238); Harris, 510 U.S. at see also merely more than “conduct that is offen- (1993) (“The ‘terms, con phrase 367 S.Ct. Harris, 21, at 114 sive.” 510 U.S. S.Ct. ditions, employment’ privileges or of Oncale, 80, 367; 523 U.S. at 118 see also at congressional a intent to strike evinces not (noting 998 that Title VII will S.Ct. spectrum disparate of treatment the entire general civility “a code for the become requir includes employment, ... which workplace” long pay American so as courts discriminatorily in a ing people to work of requirements attention to the “careful (citation environment” hostile or abusive statute”). Indeed, Supreme Court marks omit quotation internal and some “ specifically recognized that the ‘mere has ted)). But in to ensure that a cause order epithet an ethnic or racial utterance alleged on an hostile work of action based in an engenders feelings offensive which justified by the statute’s environment is the conditions employee’ would not text, emphasized has Court affect sufficiently signifi- employment [a] underlying again time and time that the Meritor, degree to violate Title VII.” cant perva must “so ‘severe or harassment be 67, (emphasis 477 at 106 S.Ct. 2399 U.S. [the as to ‘alter the conditions sive’ ” added) 238); 454 F.2d at (quoting Rogers, employment.’ Faragher, 524 victim’s] 21, Harris, 114 (alteration at S.Ct. see also 510 U.S. 786, at 118 S.Ct. 2275 U.S. has stressed added) Similarly, the Court (quoting Meri original) (emphasis comments, teasing, offhand 2399); “simple tor, see 477 U.S. at 106 S.Ct. (unless (“In extremely incidents also, Vance, and isolated e.g., 133 S.Ct. serious) discriminatory cases, will not amount we have environment] work [hostile

299 ly pervasive qualify in the ‘terms and conditions could there changes —nor ” such, at employment.’ Faragher, U.S. be. As this casé falls outside the (citation and some internal' 118 S.Ct. 2275 heartland of hostile work environment omitted). claims, marks It should thus quotation “very náture involves [of which] has surprise as no the Court come repeated Morgan, conduct.” 536 U.S. at “very nature” of a hostile 115, described the Instead, only S.Ct. 2061. “involving] claim as re work environment question juncture jury at this is whether a Morgan, conduct.” 536 U.S. peated that believed Liberto’s description of (“The 2061; also id. see events could find that Clubb’s conduct was employment practice’ issue [at ‘unlawful so severe that it altered the terms and ... can claim] a hostile work environment conditions of employment by Liberto’s cre any day. particular not be said to occur on ating a work atmosphere objec that was days perhaps It occurs over a series of or tively racially hostile. The answer is and, years in direct contrast to discrete sure, plainly “porch no. To be the term acts, may act of harassment not be monkey” is an odious racial epithet, and on its own. Such claims are actionable person reasonable position Liberto’s effect of individual based on the cumulative would of course be offended its use. “ (Citation omitted)). acts.” But the ‘mere utterance of an ethnic or ” epithet,’ racial an employ which offends Finally, emphasized that the Court has ee, does not “affect the conditions of em workplace conduct impact of offensive ployment sufficiently significant to [a] de employee’s an environment cannot Meritor, gree to violate Title VII.” Cnty. in isolation.” Clark “measured (quoting Rogers, S.Ct. 2399 Breeden, 268, 270, Sch. Dist. v. 532 U.S. 238); Harris, 454 F.2d at see also (2001) 1508, 149 (per L.Ed.2d short, S.Ct. 367. Liberto has curiam). Instead, courts must determine presented from evidence which rea sufficiently “whether environment jury workplace sonable could find that her support hostile or abusive [to claim] “permeated ‘discriminatory in circumstances,’ ‘looking including at all the timidation, ridicule, and insult’ that [was] ‘frequency discriminatory con ‘sufficiently pervasive severe or to alter duct; severity; it physically its whether the conditions of [her] threatening humiliating, or a mere of ” create an environment.’ working abusive utterance; fensive and whether it unrea Harris, (cita at 114 U.S. S.Ct. 367 sonably employee’s an interferes with ” omitted) Meritor, 477 at (quoting tion performance.’ Faragher, work 524 U.S. 2399). 65, 67, 106 S.Ct. Harris, 787-88, (quoting at 118 S.Ct. 2275 367). at S.Ct. majority’s The conclusion to the con- controlling principles, Under these distortions, trary rests on two one factual alleged “porch Clubb’s use term First, majority legal. and one brazen- monkey” twice less than hours when ly distorts the facts contained the sum- was, а a talking about incident as mary judgment regarding Liberto’s record law, pervasive matter of not so severe or understanding of Clubb’s role at the Clar- produce racially a hostile envi- as majority begins by stating ion. The changed ronment that the terms and con- the current record does establish employment. ditions Liberto’s “yvhether actually was Liberto’s su- Clubb Ante, suggestion by pervisor simply There is no her co-worker.” added). But nonetheless alleged (emphasis that the harassment was sufficient making decisions” and must instead to have when to “deem Clubb proceeds it then other purpose “rely of] for the recommendations supervisor” [the Liberto’s been severity of con- actually Clubb’s with the af- “gauging workers who interact ante, duct,” theory on the employer may “the employee” fected then having abil- portrayed herself Clubb effectively delegated the be held to have by taking advan- ity Liberto fired get tangible employment take actions power to friendship Berger. From tage of her on whose recommenda- employees to the this, yet further and majority goes formally individual vested with tions [the Liberto must have believed presumes that decisionmaking authority] relies.” Id. at effectively supervisor, was that Clubb situations are a 2452. But both of those threatening lending “particularly thus cry employee only influ- far from whose Ante, conduct. character” to Clubb’s having comes from the ear of the ence Ellerth, 524 U.S. at (quoting company’s personal owner because of their (internal omit- quotation marks friendship. ted)). Moreover, aside, setting even that issue however, are, significant two There majority’s assumption that Liberto majority’s approach. problems with supervi- as her perceived must have Clubb Clubb, First, who highly it is doubtful depo- sor flies in the face of Liberto’s own may have wielded influence on the Clar- testimony understanding about her sition personal a result of a rela- ion’s owner as place hierarchy. in the Clarion’s Clubb’s authority lacked tionship but who direct understanding asked about her When actions or tangible employment take even role, un- responded, “My Liberto Clubb’s formally that such actions to recommend that she derstanding of Clubb was Trud[i] taken, qualify super- would as Liberto’s be basically Berger’s a friend of Dr. Indeed, Court recent- visor. just greet people was there to to be ly clarified what makes an added, “I smiling face.” She was told “supervisor” in the context of hostile work oh, know, everyone, just, you humor claims, holding that the criti- environment pretty much what ev- [Clubb].... [T]hat’s cal is whether “he or she is consideration say her.” eryone would about When empowered by tangi- to take pressed, she was adamant that she did not against ble actions the vic- manager: understand Clubb to be a Vance, (emphasis 133 S.Ct. at 2439 tim.” Q. you Isn’t it true that were told that added). holding, the Court ex- so manager? was the restaurant [Clubb] typically plained that this definition would supervisory employee’s allow an status A. Never. determined, generally by writ- “readily your testimony it Q. your ‍‌​‌​‌‌‌​‌​‌​​‌‌​‌‌​​‌​‌‌‌‌​​​​​​‌​​​​‌​‌​​​​‌​‌​‍Is it —is 2443; ten documentation.” Id. see also was the you did not know Clubb Trud[i] (“The interpretation id. at 2449 of the con- manager? restaurant cept supervisor adopt today of a that we testimony. Absolutely my A. that is readily applied”). one that can be. your Q. throughout You never knew employees that can still Court indicated employment entire with the Clarion if their qualify supervisors even “deci- manager? she was subject approval by higher sions to [are] [Avery], reported A. Never. I to Jamie

management.” Id. at 2446 n. 8. It similar- Jamie, fact, told me as a matter if ly noted that the individuals vested with of did go [Clubb] not to because decisionmaking power {Clubb] “have a limited abil- voids or make ity power discretion not have the to do independent to exercise (unless serious) I report extremely had to to Jamie will not decisions. amount And at the time to discriminatory changes Richard [Heubebk]. the ‘terms ” any management did not hold employment.’ [Clubb] and conditions of 788, added) keys cards or as Jamie did. (emphasis 118 S.Ct. 2275 (citation and some quotation internal added). (Emphasis And when asked omitted). Indeed, marks majority’s “thought had to listen to [she] whether she essence, holding, distilled to its rests en- [Clubb],” just that response Liberto’s tirely on its conclusion that this is “the respectful she to be and listen to “ha[d] * type contemplated of case in Faragher everyone with.” [she] work[ed] harassment, where though perhaps majority’s conclusion that we should ‘isolated,’ can properly be deemed to be super “deem Clubb to have been Liberto’s ” Ante, ‘extremely serious.’ at 281. purpose “gauging visor” for the severity simply of Clubb’s conduct” cannot But in Faragher, Supreme Court testimony. be reconciled with this To the “incidents,” 788, referred to 524 U.S. at contrary, understanding Liberto’s of Clubb 118 S.Ct. not to a incident. “glorified everyone as a hostess” who “hu later, years And five in Morgan the Court substantially impact lessens the mor[ed]” “repeated confirmed that conduct” is the isolated statements Clubb’s could stuff of a hostile work environment. 536 have had on Liberto’s work environment. 115, 122 U.S. at 2061 (emphasis add (“[A] ante, at supervisor’s See use of [a ed). Moreover, Faragher while the Court racial epithet] impacts the work environ did not elaborate on what it envisioned as severely far ment more than use co extremely the kind of serious isolated inci (second equals” in original)) alteration may dents that produce a hostile work (quoting Rodgers v. Western-Southern environment, we know from Meritor and Co., Ins. Cir. Life Harris such incidents cannot be the 1993)) (internal omitted). quotation marks “mere utterance of an ethnic or racial epi Meritor, thet.”

In relying addition to on a blatant mis- 238) (quoting Rogers, 454 F.2d at characterization of Liberto’s understand- (internal omitted). quotation marks As Clarion, ing of Clubb’s role at thе clear, making the Court has made majority’s conclusion that Liberto’s hostile such a in the workplace, statement al work environment claims should reach a offensive, though highly not suffi jury “does faulty interpretation also rests on a ciently employment affect the conditions of a handful of words from the Harris, implicate Title Specifically, majority VII.” 510 U.S. at places Court. great emphasis deal of 114 S.Ct. 367. It is true that Clubb’s on the Court’s ob- Faragher alleged reprehensible. servation in conduct was But it “simple teasing, comments, physical offhand and isolated involved no assault or threat of incidents * support accept of its dubious contention that Li- the version of recited in events Liberto perceived position ante, berto Clubb be in a deposition testimony. at 269 n. terminated, majori- have her testimony 1. And Liberto’s contradicts El- ty points September to a 2010 email from apparent understanding man’s of Clubb’s re- Berghauer Elman to Heubeck and in which Moreover, lationship light to Liberto. meeting day Elman recounted his earlier that adamancy with which Liberto testified ante, with Liberto. See at 271. Elman wrote "never” understood Clubb to be a she that he had informed Liberto that Clubb was manager, we should not use Elman’s email to her "boss.” But as the ac- itself - clearly understanding. refute Liberto’s stated case, knowledges, stage at this we must Adams, Larson, plaintiffs alleged the In one of Lex K. Em

physical harm. Cf. “porch the slur supervisor that his carved 46.05[3][b], § at Discrimination ployment ship aluminum of the monkeys” into the ed.2012) (2d single that “a (noting 46-82 working, and the Elev- they which were a co against assault physical incident of that that “isolated enth Circuit observed by [discriminato that is motivated worker But 754 F.3d at 1254. act” was “severe.” enough to- qualify can as severe ry] animus alleged also that he “saw plaintiff the same the of co-worker’s constitute an alteration wear a shirt with a Confed- one coworker Moreover, employment”). of conditions “regularly saw racist flag”; that he erate place first encounter took though the even restroom”; and that graffiti in the men’s room, appears it dining in a crowded graffiti, his reported the racist when he epithet direct the at one heard Clubb no by saying that “it’s responded supervisor occasion, indicating Liberto on either that and if didn’t like always [he] been like humiliat name-calling publicly was not the (alterations quit.” it Id. [he could] again, thought Liberto that she ing. And (internal original) quotation marks omit- co-worker, by a being upbraided was ted). totality It was on the these based together, these supervisor. Taken that the Eleventh Circuit con- allegations matter of show as a considerations plaintiff] that “the harassment [the cluded law, alleged conduct did not Clubb’s severe,” frequent and experienced was “extremely serious” “isolat amount to the jury could find such that “[a] reasonable Faragher en ed incidents” that Court objective- work environment was [his] effecting a being capable visioned add- ly (emphasis hostile.” Id. at 1253-54 “discriminatory change[ the ‘terms ] ed). plaintiffs] employ [the conditions Similarly, Ayissi- the harassment ” 118 S.Ct. 2275.

ment.’ pervasive more and more Etoh was both than the harassment issue here. severe acknowledges that this case, African- plaintiff In that —an time that our court case marks the first financial modeler—asked American senior jury that a reasonable could has concluded why Audit Executive company’s his Chief a hostile work envi- presence find the conjunction a raise in he had not received was, most, two ronment based on what at 574- promotion. a recent F.3d with repeated relating statements to a him, Executive response, told ante, incident. at 280-81. What the See you, young “For a black man smart we .like however, acknowledge, majority does not I think happy your expertise; to have are our court an today’s is that decision makes already you money.” a lot of paying I’m appeals. courts of among outlier the other (internal quotation marks omit Id. at 575 ' being straightforward instead of And ted). later, plaintiff months Several fact, majority attempts about discussing responsibilities his work was its conclusion with citations to bolster In President of company’s with the Vice Eleventh Circuit’s decision Adams meeting “became ternal Audit when the U.S.A, L.L.C., Austal, 754 F.3d 1240 yelled at President heated” and Vice Cir.2014), and the D.C. Circuit’s decision him, my nigger.” office Id. *‘Get out of Mae, 712 Ayissi-Etoh v. Fannie Although plaintiff missed work (D.C.Cir.2013). ante, disorder, at 280-81. But anxiety he diagnosed was perva- working cases involved conduct more with the both forced to continue ensuing three- alleged during than that sive more severe President Vice and/or Based on this investigation. Id. month by Liberto here. evidence, the Circuit held that the ment claim § D.C. under U.S.C. 1981. See jury Glass, to a trial on his plaintiff Spriggs was entitled v. Diamond Auto Cir.2001) claim. hostile work environment These (recognizing that readily in Ayissi-Etoh circumstances are hostile work environment claims under Ti- distinguishable presented § from those here. tle governed VII and 1981 are by the First, noted, Ayissi-Etoh as the court in same principles). precip work environment

the hostile event, Ill by single by rather itated but independent by two statements made two If, holds, majority Clubb’s twice high-ranking company different officials calling “porch Liberto a monkey” con- indisputably supervisors both who were nection single with a workplace incident at plaintiff. Id. 577-78. Those state was a practice VII, made unlawful Title ultimately psychological prob ments led to it necessarily would follow that Liberto directly plaintiff lems and caused the .to claim, also stated a retaliation for such a Second, miss work. Id. at 577. the racist claim arises when an opposes during comments were made conversations any practice made an unlawful practice by pay about the plaintiffs assign Title subjected VII and therefore is to an ments, increasing thus the statements’ ante, adverse action. See at ability to “alter the conditions of the vic majority 281. The could have ended its Harris, employment.” tim’s retaliation claim analysis without saying contrast, By 367. the case Instead, more. But gratu- it did not. it (1) hand, only there was one incident itously proceeded adopt unprecedent- (2) harasser; involving alleged one the al ed standard for retaliation claims that is leged perceived harasser was plain necessary much broader than to resolve tiff to a “glorified be hostess” with no so, doing Liberto’s claim. In it also unnec- (3) decisions”; to ... “power make essarily part overruled of our decision in although alleged harasser denied mak Jordan v. Alternative Corp., Resources statement, ing the offensive (4th Cir.2006). F.3d 332 promptly reprimand, issued her a written warning her “to be cautious the lan [that] A guage or phrases she uses can not [that] new, As to its broad standard for retalia- perceived derogatory.” as racist or [sic] claims, tion majority beyond moves far For the given, alleged reasons Clubb’s scope any statutory language “porch monkey” use the term twice in precedent Court to conclude less than 24 talking hours when about a employee opposes even when an not, law, single incident was as a matter of incident, offensive “a she has reasonable sufficiently pervasive severe or to create a belief that a hostile work environment is racially hostile work environment that al- occurring” whenever the incident is humili- tered the terms and conditions of Liberto’s Ante, 284; ante, ating. see also at 284- employment. I would therefore affirm the standard, Applying “ summary judgment district court’s on Li- ‘porch monkey’ concludes that- because berto’s Title VII hostile work environment epithet just a racial humiliating, is not claim. ‘degrading humiliating but in the ex- ” reasons, treme,’ For I necessarily opposing the same would also af- Liberto was firm summary judg- the district court’s a hostile work environment that was “in progress” brought ment hostile work environ- when she racial Liberto’s Jordan, Ante, progress.” happened at has or is in management’s attention. to slurs added). 185). (emphasis 458 F.3d (quoting Spriggs, and untena- Undoubtedly, gratuitous this standard, when an the Jordan Under widespread litiga- generate holding will ble complaint relates to another employee’s workplace many offensive the tion over conduct, do not harassing we employee’s everyday employees that made comments already to have the harassment require humiliating. find to be Title level actionable under risen to the must, statute, Title the as we Turning to opposition activity to in order for her VII makes it un- provision antiretaliation VII’s But from retaliation. when protected be an to discriminate “for lawful has not risen to the offending the conduct ... employees his because against of by Title made unlawful practice level of any practice opposed has employee] [the VII, recognized that it be we also would employment practice an unlawful made assume, “simply without inappropriate 2000e-3(a). § Read VII].” U.S.C. [Title more, opposed conduct [would] that provides pro- naturally, provision this most repeated unabated.” continue or [would] employee to an from retaliation tection Jordan, Instead, held 458 F.3d at 341. we employment practice an opposed has who incipient stage, plaintiff must this VII, actually unlawful under Title that is to evidence that “reason- point be able to maintenance of including employer’s ably the inference” that the con- supports And racially hostile work environment. being objected “likely to was to recur duct 2000e-3(a)’s generous- language § reading to create a hostile work at a level sufficient have purpose, effect to its we ly give words, an Id. In other environment.” employee engages an also held that objectionable conduct employee’s report of an activity opposes when she protected yet become unlawful under has reasonably practice she activity, qualify protected as Title VII unlawful, Navy see EEOC v. believes to be least, must, very at the have employee Union, 406-07 Fed. Credit objectively reasonable belief that a hos- an (4th Cir.2005), although result, would “based tile work environment Specifical- yet gone has not so far. Court employee ob- on circumstances Breeden, ly, in reasonably believes.” Id. serves declined “to rule on the Court Here, majority adopts a standard far interpre- propriety Circuit’s] Ninth [the recognized we Jor- beyond that which 2000e-3(a) § “protecting] tation” any court of beyond and far what dan just prac- ‘opposition]’ not employee that an It holds appeals recognized. has ... unlawful’ actually that are ‘made tices about a employee’s single complaint VII, that the practices but also to by Title incident, inci- regardless of whether the reasonably could believe were employee actually unlawful under Title VII dent is unlawful,” assuming [that “because even reasonably be- or whether the correct, no one could interpretation] its recur, likely to lieves that the incident is the incident reasonably [at believe retaliation legitimate for a can be the basis Finally, we have violated Title VII.” issue] claim, humiliat- long as the conduct is further, so recognizing that gone step one ante, if, at 284-85. This new stan- ing. See protected from retaliation employee is many ques- new surely generate had “an dard will complaint, time of her she workplace which offensive light of all tions about objectively reasonable belief humiliating and objectively are violation comments the circumstances that a Title VII expansion litigation lead to an far be- evidence suggesting that she had reason to yond design. Title VII’s supervisors believe that her and eo-work- ers would tolerate such permit conduct or I would conclude in this case that Indeed, it to recur. after reported Liberto correctly court summary district entered incident, the Clarion’s management judgment for the defendants on Liberto’s promptly issued a written reprimand to because, retaliation claim as a matter Clubb, warning her to be cautious about law, oppose activity she did not that Title language. her protects VII from retaliation when she reported Clubb’s While every conduct the Clarion’s Liberto had right to be by Human offended light Resources Director. of all Clubb’s use of a epithet racial circumstances, the reasonably Clubb’s use of an offen acted and responsibly in epithet reporting sive racial twice less than 24 the incident to Clarion’s Human insufficiently Director, hours was give severe to Li- Resources she lacked a reason- belief, objectively berto an able required by reasonable belief that as language the of VII, complaining she was Title presence about the of that she was opposing her em- racially environment, ployer’s a hostile work rather commission of practice “a[ ] made simply than about ... ... employee’s by another in unlawful [Title VII].” U.S.C. 2000e-3(a). § appropriate Certainly, reason, conduct. Liberto For that I would conclude, reasonably law, could have a concluded from as matter of that she did demeaning Clubb’s not engage protected statement that Clubb activity and that herself was a racist. the But the fact that a district court properly therefore en- single employee tered summary judgment against has revealed herself her on through an isolated bigoted incident to be retaliation claims.

does not translate into an objectively rea B

sonable belief that workplace has itself become employees abusive to because of In addition to adopting a broad and their race. Butler v. Ala. Dep’t unprecedented evaluating standard for re- Cf. of (11th Transp., 536 F.3d Cir. VII, major- taliation claims under Title 2008) (“[N]ot every by act an employee in ity gratuitously also a portion reverses opposition to racial pro discrimination is in a by Judge King, Jordan manner which opposition tected. The must be directed author, majority’s explicitly vindicates at an employment practice unlawful an Jordan, his dissent in notwithstanding his employer, not an act of by discrimination a presents concession that this case distin- ” added)) private (emphasis individual guishing circumstances. Techs., (quoting Little v. United Carrier Notably, majority does not overturn Div., Transicold way all of It in suggests, Jоrdan. no Cir.1997)) (internal quotation marks omit example, the isolated incident at issue ted). in -that sufficiently case was severe to cre- Moreover, were, Indeed, Clubb’s statements as a ate a hostile work environment. law, matter of too give isolated to Liberto “observ[ing] that the district court im- an objectively properly reasonable ’belief that analogized this matter ... to Jor- dan,” likely offensive conduct was ripen into a instead confirms that “a hostile work environment. Liberto has racist remark that was made a mere co- any not identified evidence in the plaintiff] record worker and not aimed at [the suggesting workplace any employee” racism was other a does not amount to prior statements, Ante, afoot Clubb’s nor hostile work environment. at 281. to con- leading the Court “oppose,” term majority indicate

Nor does statutory interpreta- a matter clude—as belief had a reasonable plaintiff Jordan “[tjhere ... no reason is tion—that was tak- work environment a hostile by re- person ‘oppose’ a can doubt that his co- reported he at the time ing shape just question else’s sponding to someone supervi- comment to his racist worker’s discussion, by provoking the surely as Rather, only portion Jordan sors. nothing requires in the statute already its majority overrules is that the who protecting rule freakish whose re- plaintiff rule that liberalizing on her own initia- reports discrimination objectively on an taliation claim based reports who the same tive but not one a hostile work envi- belief that reasonable when her in the same words discrimination yet progress, but ronment was 276-78, question.” Id. boss asks existence, only point to some evi- need Clearly, nothing holding in this indicating such an environment dence Ante, Jordan. “incompatible” Jordan, “likely to occur.” 283. ante, 340; at 282. see in North- Similarly, Burlington the issue aspect of majority that this claims “Title VII’s antiretalia- ern was whether incompatible [v. with “is Jordan Crawford only employer those provision tion forbids Nashville & Metropolitan Government of resulting harms that are relat- actions and 271, 279, County, 555 U.S. Davidson workplace,” or the employment ed to (2009)], 846, as well 172 L.Ed.2d S.Ct. antidiscrimi- does the statute’s substantive decisions direct- Supreme as other Court 61, 548 U.S. at 126 S.Ct. provision. nation provi- Title antiretaliation ing that VII’s answering question the 2405. In provide pro- ‘to broad interpreted sion be emphasized that lan- negative, the Court ” Ante, at 283 tection from retaliation.’ provision in the guage antidiscrimination Ry. N. Fe Burlington & Santa (quoting scope provi- of that “explicitly the limit[s] White, 53, 67, 126 S.Ct. Co. that affect or sion to actions (2006)). analy- 2405, An 165 L.Ed.2d 345 workplace,” alter the conditions cases, however, no- belies the sis of these appear limiting words “[n]o whereas such with they tion that are tension Jordan 62, at provision.” antiretaliation Id. in the decisions, that, Supreme these or with further rea- 2405. The Court 126 S.Ct. provide given has license to em- Court us between the that the two soned difference protection from ployees “broad[er] with confirms “that Con- provisions’ purposes than the text of the statute retaliation” lan- differences that its gress intended the justifies. 63, at 126 S.Ct. 2405. guage suggests.” Id. example, For resolved the rejected It on this basis the Court Crawford “ “an employee whether question narrow of that it ‘anomalous’ to the view would out discrimination speaks protec- who about provide the statute to broader read initiative, answering but on her own of retaliation than for those tion for victims during employer’s protect, internal questions primarily an Title seeks whom VII race-based, an investigation” opposed has unlawful em- victims ethnic- namely, meaning based, dis- practice religion-based, gender-based within the ployment 2405. provision. at Title 555 crimination.” Id. VU’s anti-retaliation .suggestion such, majority’s holding despite 846. In at As S.Ct. Burlington Northern contrary, does employee engaged protect- to the such an had proposition for the courts analysis not stand activity, Supreme Court’s ed possible always adopt the broadest must “ordinary meaning” focused on harassment, Title antiretaliation tent plaintiff] [the construction of YII’s cannot be certainly author- provision, and it does not failing excused from to report super [her plaintiffs protection to afford added)). ize courts visor’s (emphasis conduct]” sooner beyond provides. what the statute itself Second, the majority combines the qualita requirement objective tive reasonable level, general

At more ness in reporting harassment with the being faults the Jordan standard as concept laches described hope expectation odds “the Faragher, Court in 524 U.S. at employees report early, will harassment developed by this court in before it rises to the level of a hostile work Matvia, order to invent Ante, Along environment.” these a fictitious lines, actuality, Catch-22. an 'majority em suggests when ployee only risks retaliation early reporting reporting combined with the “com defense,” early too pelled by Ellerth/Faragher when there is insufficient conduct places expe VII, who has about complain Jordan which to under Title rienced an isolated of harassment only incident and she risks dismissal of her claim in an position; leaving untenable her vul reporting too late when she inordinate reports nerable to retaliation if she her ly delays coming forward. supervisor’s insulating conduct and however, point, More to the it is not the liability from should she fail to role of this court early to incentivize the Ante,

report majority’s it. at 282. The objectionable reporting of conduct where dilemma, however, First, is a false one. Congress itself has not seen fit to do so. Ellerth/Faragher the аffirmative defense Indeed, Congress could have written Title only an employer enables to avoid vicari antiretaliation provision provide VII’s to liability supervisor’s ous for its creation of protection every to employee reports who a hostile work environment if the offensive, any racially or sexually charged prove can both that it “exercised reason workplace incident that makes him or her prevent promptly able care to and correct See, uncomfortable. But it did not. e.g., behavior, harassing ... ... that Breeden, 269-71, 532 U.S. at plaintiff employee the unreasonably failed (holding employee that an did not advantage any preventive to take of or engage protected activity when she opportunities provided by corrective that, complained during meeting, a her su- employer or to avoid harm otherwise.” pervisor sexually explicit read aloud a Ellerth, 524 U.S. at 118 S.Ct. 2257 statement, job applicant which a had pur- added); (emphasis see Faragher, also made, portedly at her looking before highly U.S. at 118 S.Ct. 2275. It is means,” “I that stating, don’t know what doubtful, however, that an employer would a chuckling along and then with male em- employee be able to show that an acted ployee explain who offered to the comment unreasonably by choosing not to immedi later). Instead, him Congress to chose to ately report an isolated incident of work only protect employees “opposed who have place misconduct that was not in itself any practice employ- made an unlawful give sufficient to rise to a reasonable belief practice by ment U.S.C. [Title VII].” that a hostile work environment was in C 2000e-3(a). § already liberally have progress. Matvia v. We Bald Head Island f. Inc., interpreted' provision protect em- Mgmt., this to Cir. 2001) (holding ployees possess objectively that the who an reason- employer had es because, they complaining tablished the that are affirmative defense able about belief light long-term a persis “[i]n th[e] Title VII violation has occurred or of- merely it remains humiliating to or whether serves progress, standard is in .that utterance. an offensive cases. But we employees close protect that a inci- simply presume entirely cannot majority’s position is also ability desire of workplace miscon- about the racially charged pessimistic dent of from progression employers stop into an actual inevitably ripen duct will utterances of racial slurs to hos- isolated environment, lest our racially hostile Indeed, major- environment. tile work completely unteth- become interpretation of ity manifests a fundamental distrust Instead, text. from Title VIPs ered assuming once a humiliat- employers, claim is based plaintiff whose retaliation uttered, of ing epithet development is objectively belief that she on an reasonable is a fait accom- a hostile work environment environment a hostile work opposing words, are employers other pli—in process developing must that was in of unwilling prevent a de- powerless point to some evidence be able hostility. as- pervasive into This scent that such an envi- the inference supports course, support finds no more sumption, of Jordan, “likely to occur.” ronment was precedent Supreme in Title VII or Court added). (emphasis F.3d at 340 more, is logic. than it does in basic What employer will the most conscientious even pro- requiring plaintiff Instead objectively now be reluctant to fire evidence, con- duce such employee who has re- underperforming opposing an incident that cludes that could be con- ported epithet a racial could humiliating, regardless whether it because, humiliating under sidered environment, lead to a hostile work standard, majority’s is ef- Ante, at Even a cur- protected. 284-85. reasonably be- fectively presumed to have per of this new se rule sory consideration protesting an unlawful lieved that he was An isolated quickly problems. reveals its he made his employment practice when is, humiliating harassment is at odds complaint. presumption incident This VII, juris- with Title Court’s course, than “a mere offen- more serious and the fundamental character prudence, Harris, utterance.” sive modern work- employers America’s But it far from clear 114 S.Ct. 367. place. why single humiliating a incident of support that is insufficient to harassment IV belief that a hostile work reasonable conclude, bottom, At I would as did the environment had come into existence court, that while Clubb’s comments district give nonetheless rise to a reason-

would offensive, unacceptably were to Liberto able belief that a hostile work environ- with an they were made connection developing. process ment was incident, they were and therefore isolated assuming if a must be the existence of insufficient to demonstrate humiliating instance of harassment that altered environment a hostile work occurred, objectionable conduct has then conditions of Liberto’s em- the terms and at a level suffi- repeated is bound to be conclude, I as did ployment. would also work environ- cient to create hostile court, that because Title VII’s the district course, this, ment. But does follow. requires, as we provision antiretaliation hand-wringing anticipate And I can much it, liberally employ- have construed community determining legal in the when to a hostile work opposition must be ee’s reasonably believed that she qualifies environment particular whether incident progress, retaliation Liberto’s Thus, claims also fail. I would affirm. America,

UNITED STATES of

Plaintiff-Appellee, BERCIAN-FLORES,

Jose Geovani a/k/a Jeovany Bercian-Flores,

Jose a/k/a Flores-Mendosa,

Jose Geovani a/k/a

Napolean Villalta, Defendant-Appel-

lant.

No. 13-4504. Appeals,

United States Court of

Fourth Circuit.

Argued: Jan. 2015. May

Decided: Brown, Jr.,

ARGUED: Richard Lamb Brown, Jr., Law Offices Of L. Richard Monroe, Carolina, ‍‌​‌​‌‌‌​‌​‌​​‌‌​‌‌​​‌​‌‌‌‌​​​​​​‌​​​​‌​‌​​​​‌​‌​‍North for Appellant. Amy Ray, Elizabeth Office Of The United

Case Details

Case Name: Reya Boyer-Liberto v. Fontainebleau Corporation

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 7, 2015

Citation: 786 F.3d 264

Docket Number: 13-1473

Court Abbreviation: 4th Cir.