Boyer-Liberto v. Fontainebleau Corp.

• Decision Date: 01 July 2014
• Docket Number: No. 13–1473.,13–1473.
• Citation: 752 F.3d 350
• Parties: Reya C. BOYER–LIBERTO, Plaintiff–Appellant, v. FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel; Leonard P. Berger, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

752 F.3d 350

Reya C. BOYER–LIBERTO, Plaintiff–Appellant,

v.FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel; Leonard P. Berger, Defendants–Appellees.

No. 13–1473.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 29, 2014.

Decided: May 13, 2014.

Rehearing En Banc Granted July 1, 2014.

ARGUED:Robin Ringgold Cockey, Cockey, Brennan & Maloney, PC, Salisbury, Maryland, for Appellant. Harriet Ellen Cooperman, Saul Ewing LLP, Baltimore, Maryland, for Appellees. ON BRIEF:Brett S. Covington, Saul Ewing LLP, Baltimore, Maryland, for Appellees.

Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD joined. Judge SHEDD wrote a separate concurring opinion. Chief Judge TRAXLER wrote an opinion concurring in part and dissenting in part.

NIEMEYER, Circuit Judge:

Reya C. Boyer–Liberto, an African–American woman, commenced this action against her former employer, the Fontainebleau Corporation, trading as Clarion Resort Fontainebleau Hotel, in Ocean City, Maryland, and its owner, Leonard Berger, for racial discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She grounds her racial discrimination claim on a hostile work environment allegedly created by two conversations she had with a coworker about an incident that occurred on September 14, 2010. During the conversations, which took place on two consecutive days, the coworker twice called Liberto a “porch monkey.” And she grounds her retaliation claim on the termination of her employment after she complained about the statements.

The district court granted the defendants' motion for summary judgment, concluding that the conduct was too isolated to support either of Liberto's claims.

For the reasons that follow, we affirm.

I

Liberto began working at the Clarion Resort Fontainebleau Hotel (the “Clarion”) on August 4, 2010. The Clarion is a typical oceanfront hotel, with several restaurants, bars, a nightclub, and banquet facilities, and it typically employs 75 people in its service department. Liberto began as a morning hostess in one of the hotel's restaurants.

According to Richard Heubeck, the Clarion's Food and Beverage Director, Liberto “didn't seem to be happy in [the morning hostess] position.” He stated that she had difficulty keeping pace with the job and that it was not a “good fit” for her. Because Liberto had previously expressed a preference for other jobs in the hotel, she was allowed to work in other departments, engaging in serving and bartending, as well as working banquets. According to Berger, the Clarion's owner, Liberto also struggled with these other jobs. As he stated, she behaved unprofessionally, clashed with other employees, disregarded Clarion policy, and responded poorly to criticism. Berger said that because Liberto “had failed at four jobs” and had failed the Clarion bartending test, he terminated her employment on September 21, 2010.

During her employment, Liberto interacted with Trudy Clubb, a longtime employee at the Clarion and a friend of Berger. Clubb described herself as a restaurant “manager,” reporting to Food and Beverage Director Heubeck, as well as Mark Elman, another supervisor. While Clubb's exact role at the Clarion is not made clear in the record, Clubb described her job as “getting things going for the early part of the day, seeing that the crew is well-equipped and ready to present themselves to the customers, getting the tables ready, getting the buffet ... ready, [and] overseeing all the items that need to be done.” Clubb was not involved in the hiring and disciplining of fellow employees.

Liberto testified during her deposition that she never understood Clubb to be a supervisor or manager. Liberto said that she “was told by [her] co-workers that [Clubb] was just Dr. Berger's friend and she was just there to say ‘hello’ and greet people as a glorified hostess.” She also stated that she was never told that Clubb was a manager; to the contrary, she was told that Clubb “did not have the power to ... make decisions” and did not have management cards or keys. Liberto stated that she herself reported to Heubeck and to another manager named “Jamie.” She acknowledged that she did listen to Clubb, but she did so only to the extent that she had “to be respectful and listen to anyone [she] work[ed] with.” While Clubb would occasionally ask Liberto or other employees to do something, Liberto testified that “it was not a regular routine ... for [Clubb] to instruct[ ]” other employees, and Clubb did not ever correct the work that Liberto did.

When Liberto and Clubb were first introduced, Clubb compared Liberto with another employee, stating, “You look like Stacy, but Stacy's nice,” which Liberto took as offensive. But the incident central to this action occurred on September 14, 2010, more than a month after Liberto had been hired.

On the evening of September 14, Liberto was serving drinks to customers, and one customer ordered a “Hula–Hula,” a drink that was particularly time-consuming to make. When the bartender at the Clarion's primary bar refused to make the drink, Liberto went through the kitchen to order the drink from the Clarion's “pub bar.” While passing through the kitchen, Clubb called out to Liberto several times, telling her not to use the kitchen as a shortcut. Liberto did not hear Clubb's calls. When Clubb finally got Liberto's attention, Clubb began yelling at Liberto for not acknowledging her when she had tried to get Liberto's attention. Liberto said that the distance between the two was close enough that she could “[feel] Clubb's breath” and spittle from Clubb's mouth was hitting her. Clubb called Liberto “deaf” and said that she was “going to make [Liberto] sorry.” As the conversation concluded, Clubb called Liberto a “porch monkey.”

When Liberto went to Heubeck's office the next day to complain about Clubb's conduct, Clubb came in and said to Liberto, “I need to speak to you, little girl.” The two then spoke alone outside the office, and Clubb scolded her for “abandoning [her] station” the previous day. As this meeting broke up, Clubb again called Liberto a “porch monkey.”

Liberto reported the conduct to Nancy Berghauer, the Clarion's Human Resources Director, and the two spoke over the telephone on September 17, 2010. Berghauer made typewritten notes of the conversation and forwarded them to Berger and Elman. Elman met with Liberto to discuss the situation and to ensure that Berghauer's notes were correct. The next day, September 18, Heubeck met with Clubb, who denied Liberto's allegations. He nonetheless issued her a written warning.

One day prior to Heubeck's meeting with Clubb, Berger and Heubeck discussed Liberto's performance problems, as well as her conflict with Clubb. During the conversation, Berger observed that Liberto had substantial performance issues and felt that the Clarion “should terminate her.” Over the next few days, before Berger had made a final decision on Liberto's employment, he discussed Liberto's performance with Elman and Berghauer. When Berger looked at Liberto's work file, he discovered that she had failed the Clarion's bartending test. Elman and Berghauer both told Berger that “because of [Liberto's] complaint, [firing her] could create a situation.” Berger replied that “there's not going to be any good time to let her go. The situation will be there.” On September 21, Berger terminated Liberto's employment. He asserted in his deposition that Liberto's allegations against Clubb did not play any part in his decision. Moreover, Clubb was not involved in the decision, only learning of it a week later.

Liberto filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 23, 2010, alleging discrimination based on her race and retaliation based on her engagement in protected activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC issued Liberto a Notice of Right to Sue, following which Liberto commenced this action.

In her complaint, Liberto asserted four claims for relief: two counts of racial discrimination, in violation of Title VII (Count I) and 42 U.S.C. § 1981 (Count III), and two counts of retaliation, also in violation of Title VII (Count II) and 42 U.S.C. § 1981 (Count IV).

Following discovery, the defendants filed a motion for summary judgment. In deciding the motion, the district court excluded from consideration the “vague” answers to interrogatories given by Liberto, which were not executed on personal knowledge and included hearsay. The court did, however, take as true the testimony in Liberto's deposition, in which she described the two conversations in which Clubb called her a “porch monkey.” The court held that based on the summary judgment record so defined, the offensive conduct was too isolated to support Liberto's claims for discrimination and retaliation. Accordingly, by order dated April 4, 2013, the court entered judgment in favor of the defendants.

This appeal followed.

II

Liberto contends first that the district court erred in excluding her answers to interrogatories as part of the summary judgment record. The court concluded that the answers were not only “vague as to time, place, and identity of the hearer” but also were not based on Liberto's personal knowledge. Liberto had executed the answers with the oath that they were true “to the best of [her] knowledge, information and belief.” Moreover, in the text of the answers themselves, Liberto stated that the information was “not based solely upon [her] knowledge ... but include[d] the knowledge of [her] agents, representatives, and attorney.” The answers identified 14 other persons who had knowledge of the relevant facts, as alleged in the complaint.

Liberto nonetheless argues that the language referring to other persons'...