BOYER-LIBERTO v. FONTAINEBLEAU CORP. & BERGER, NO. 13-1473

Decided: May 13, 2014

The Fourth Circuit affirmed the district court’s decision holding that Liberto did not have valid discrimination or retaliation claims under Title VII and 42 U.S.C. §1981, based on an isolated incident of a racial slur used by a fellow employee.

Liberto, an African-American woman, was hired as a day hostess at the Clarion Hotel in early August and was fired in late September, a week after a confrontation with another employee, Clubb, who called Liberto a “porch monkey.”  Clubb used this slur twice over two days in regards to the same incident.  On the first occasion, Liberto took a short cut through the kitchen to get a drink for a customer.  Clubb called after Liberto, but Liberto, did not hear Clubb calling, and kept going. When Clubb caught up with Liberto, she got in Liberto’s face, close enough for Liberto to feel spittle on her face, and used the racial slur.  Though Clubb was a day manager, Liberto was unaware that Clubb held any official authority.  While Liberto was reporting the incident on the following day, Clubb confronted Liberto about the prior incident, again using the racial slur.  Management met to discuss Liberto’s performance, noting that she had substantial performance issues and had failed the hotel’s bartending test.  Management then decided to fire Liberto despite her complaint, stating that “there’s not going to be a good time to let her go.” Clubb was not involved in the decision, and management stated in a deposition that the complaint was not considered in making the termination decision.

Liberto filed suit, claiming a violation of Title VII and 42 U.S.C. § 1981 for two counts of racial discrimination and two counts of retaliation.  The district court held that the offensive conduct was too isolated to support Liberto’s claims for discrimination and retaliation, excluding “vague” answers to interrogatories given by Liberto, which were not executed on personal knowledge and included hearsay.  The court did take Liberto’s testimony about the two confrontations with Clubb as true, but granted summary judgment to the defendants.  Liberto appealed.

First, Liberto challenged the exclusion of Liberto’s interrogatory answers from the summary judgment record.  The Fourth Circuit found no error in excluding this testimony because the declarant must give information in an affidavit that complies with Federal Rules of Civil Procedure (F.R.C.P.) 56, or give answers to interrogatories based on personal knowledge.  To comply with F.R.C.P. Rule 56, the facts forming the basis for a summary judgment must (1) be material, (2) be undisputed, and (3) be admissible in evidence.  The facts must demonstrate that the declarant has personal knowledge of the facts and is competent to testify to them.  The Court reasoned that Liberto did not rely solely on personal knowledge, but also on the information of others.

Second, Liberto challenged the district court’s holding that the undisputed facts in the summary judgment record did not demonstrate a hostile work environment as a matter of law.  Requiring an employee to work in a hostile work environment is a violation of Title VII, which makes it unlawful for an employer to discriminate against an employee based on race, color, religion, sex, or national origin.  A hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  A court must, in light of all the circumstances, examine: (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether it is physically threatening or humiliating, or a mere offensive utterance, and (4) whether it unreasonably interferes with an employee’s work performance.  Though the racial slur was derogatory and highly offensive, the use of the word twice over a two-day period in regards to a single incident was not, as a matter of law, so severe or pervasive as to create a hostile work environment.  Generally, a hostile work environment results “only after an accumulation of discrete instances of harassment.”  Jordan v. Alternative Resources Corp., 458 F.3d 332, 339 (4th Cir. 2006).  Liberto’s claim failed because there is no Fourth Circuit precedent finding that a hostile work environment is created from a single incident.  The Court applied the same principles for a hostile work environment claim under Title VII to Liberto’s claim under 42 U.S.C. § 1981.  See Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013); Tawwaab v. Virginia Linen Servs., Inc., 729 F. Supp. 2d 757 (D. Md. 2010).

Finally, Liberto challenged the district court’s dismissal of her retaliation claims under Title VII and 42 U.S.C. § 1981.  To prove retaliation, the employee must show an objectively reasonable belief that there was a hostile work environment, and that the employee was terminated because of the complaint.  Liberto’s claim failed because her belief was based on one incident over two days with one coworker who was not a supervisor; thus, the Fourth Circuit reasoned that she was much less likely to have had an objectively reasonable belief that conduct complained of was unlawful under Title VII or 42 U.S.C. § 1981.  Furthermore having held that no objectively reasonable juror could have found a hostile work environment, the Court determined that Liberto could not have had an objectively reasonable belief that she was working in a hostile work environment.  A plaintiff may also allege a hostile work environment if such an environment is likely to be created, but there must be some evidence that the hostile conduct would “ripen” into such an environment.  Clubb received a warning following the incident, and there was nothing in the record to indicate that there was some “plan” to create the hostile work environment.

Chief Judge Traxler concurred that Liberto did not prove a hostile environment under Title VII or §1981, but dissented in the grant of summary judgment on Liberto’s retaliation claims.  Judge Traxler disagreed with the determination that, as a matter of law, the lack of a hostile work environment necessarily resolved the retaliation claim.  According to Traxler, so long as the employee has an objectively reasonable belief that an employment practice is unlawful, then opposition to that activity is protected.  Traxler relied upon Judge Kavanaugh’s concurring opinion in Ayissi-Etoh, and emphasized that a single incident could suffice to create a hostile work environment if the incident is sufficiently severe.  In Sprigss, the court showed how a racial slur could be more than a “mere offensive utterance,” and the term in this case could be such a term.  Traxler distinguished this case from Jordon, where a coworker used a racial slur once in the employee’s presence which was directed at criminals on television, and was not directed at the employee personally or at any other employee.  In this case, Clubb aggressively used the racial slur against Liberto personally on more than one occasion, accompanied by the threat of speaking with Clubb’s friend, the hotel owner, in an effort to get Liberto fired.

Full Opinion

Verona Sheleena Rios

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