Boyer-Liberto v. Fontainebleau Corp., No. 13–1473.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: KING, Circuit Judge
• Citation: 786 F.3d 264
• Parties: Reya C. BOYER–LIBERTO, Plaintiff–Appellant, v. FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel ; Leonard P. Berger, Defendants–Appellees. Equal Employment Opportunity Commission; Metropolitan Washington Employment Lawyers Association; Public Justice Center, Inc., Amici Supporting Appellant.
• Docket Number: No. 13–1473.
• Decision Date: 07 May 2015

786 F.3d 264

Reya C. BOYER–LIBERTO, Plaintiff–Appellant
v.
FONTAINEBLEAU CORPORATION, trading as Clarion Resort Fontainebleau Hotel ; Leonard P. Berger, Defendants–Appellees.

Equal Employment Opportunity Commission; Metropolitan Washington Employment Lawyers Association; Public Justice Center, Inc., Amici Supporting Appellant.

No. 13–1473.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 18, 2014.
Decided May 7, 2015.

786 F.3d 267

ARGUED:Robin Ringgold Cockey, Cockey, Brennan & Maloney, PC, Salisbury,

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Maryland, for Appellant. Harriet Ellen Cooperman, Saul Ewing LLP, Baltimore, Maryland, for Appellees. Paul D. Ramshaw, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Amicus U.S. Equal Employment Opportunity Commission. ON BRIEF:Brett S. Covington, Saul Ewing LLP, Baltimore, Maryland, for Appellees. P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Jennifer S. Goldstein, Acting Assistant General Counsel, Office of General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Amicus U.S. Equal Employment Opportunity Commission. Stephen Z. Chertkof, Douglas B. Huron, Heller, Huron, Chertkof & Salzman PLLC, Washington, D.C.; Ilana Gelfman, Francis D. Murnaghan, Appellate Advocacy Fellow, Public Justice Center, Baltimore, Maryland, for Amici Metropolitan Washington Employment Lawyers Association and the Public Justice Center.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, GREGORY, SHEDD, DUNCAN, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS joined. Judge WILKINSON wrote an opinion concurring in part and dissenting in part, in which Judge AGEE joined. Judge NIEMEYER wrote a dissenting opinion.

ON REHEARING EN BANC

KING, Circuit Judge:

Reya C. Boyer–Liberto, the African–American plaintiff in these civil rights proceedings, alleges that within a single twenty-four-hour period in September 2010, while working as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”), she was twice called a “porch monkey” and threatened with the loss of her job by a Caucasian restaurant manager. Soon after reporting to higher-ups at the hotel that she had been racially harassed, Liberto was fired by the Clarion's owner, Dr. Leonard P. Berger. This action against the Fontainebleau Corporation and Berger ensued, with Liberto asserting claims of hostile work environment and retaliation, under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court awarded summary judgment to the defendants, see Boyer–Liberto v. Fontainebleau Corp., No. 1:12–cv–00212, 2013 WL 1413031 (D.Md. Apr. 4, 2013), ECF No. 52, and a not-fully-unanimous panel of this Court affirmed, see Boyer–Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir.2014). The panel's decision was vacated, however, by our grant of rehearing en banc.

As explained below, we now vacate the judgment of the district court and remand for further proceedings on Liberto's claims. In so doing, we underscore the Supreme Court's pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), that an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone. Finally, we specify that, to the extent today's decision is in conflict with Jordan v. Alternative Resources

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Corp., 458 F.3d 332 (4th Cir.2006), Jordan is hereby overruled.

I.

A.

The record in this matter reflects that on August 4, 2010, Liberto began working at the Clarion, an oceanfront hotel containing guest rooms, several restaurants and bars, a nightclub, and a conference center with meeting and banquet facilities.¹ During the seven weeks she was employed with the Clarion's Food and Beverage Department, Liberto worked in assorted roles, including restaurant hostess, restaurant and banquet server, bartender, and cocktail waitress. According to Liberto, the Clarion assigned her that variety of jobs so that she could learn all positions within the Food and Beverage Department as part of her training.

On the night of September 14, 2010, Liberto was working as a cocktail waitress in the Clarion's nightclub. One of her customers ordered a “Hula Hula,” a drink that is time-consuming to prepare. The bartender in the adjacent main bar refused to fill the order, explaining to Liberto that other nightclub patrons would see the Hula Hula and want that drink, too. In an effort to please her customer and after consulting immediate supervisor Jamie Avery, Liberto went beyond the main bar to the pub bar, where she found a bartender willing to make a Hula Hula. Once the drink was prepared, Liberto wanted to avoid a confrontation with the bartender in the main bar, so she chose a new path back to the nightclub that took her through the restaurant kitchen. Liberto carried the Hula Hula briskly through the kitchen and across the nightclub to her customer's table. She then went to a server station, which was located in the nightclub several feet from the kitchen doors, to print a guest check.

At that point, Liberto was confronted by Trudi Clubb, a white Food and Beverage Manager at the Clarion. Unbeknownst to Liberto, Clubb had been yelling at Liberto as she passed through the kitchen carrying the Hula Hula. Liberto soon learned that Clubb was livid because she believed that Liberto had heard but ignored her. As Liberto worked at the server station, Clubb came through the kitchen doors, loudly screaming, “Hey, girl that can't hear.” J.A. 237.² Clubb, still shouting, quickly approached Liberto, who turned her face away from Clubb in an effort to remain calm—a move that made Clubb even more furious. Clubb then came so close to Liberto that Liberto could feel Clubb's breath on her face as Clubb stood at Liberto's side. Indeed, continuing to yell at Liberto, Clubb sprayed Liberto's face with saliva. Clubb's message was that Liberto should have neither walked through the kitchen nor ignored Clubb, and Liberto repeatedly indicated that she understood and agreed.

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Clubb's shouting nonetheless persisted, even as Liberto left the server station to tend to nightclub customers. Clubb was now loudly berating Liberto for walking away from her, at first following Liberto into the nightclub and then moving back to the server station. Upon Liberto's subsequent return to that area, Clubb finally proceeded to exit the nightclub into the kitchen. As she did so, Clubb threatened Liberto in words that included, “[I'm] going to get [you]” and “[I'm] going to make [you] sorry.” J.A. 252–53. Clubb then concluded her threat by turning to look at Liberto and calling her either a “damn porch monkey” or a “dang porch monkey.” See id. at 258.

Upon arriving for a dinner shift the following day, September 15, 2010, Liberto went to the Clarion's management office to report Clubb's conduct to Food and Beverage Director Richard Heubeck. Liberto had just begun talking to Heubeck when she was interrupted by Clubb, who came into the office and said to Liberto, “I need to speak to you, little girl.” J.A. 263. Liberto responded that she was meeting with Heubeck, but Clubb retorted, “I'm more important,” prompting Liberto to follow Clubb out of the office. Id. at 263–64. Clubb and Liberto sat at a nearby table, and Clubb reprimanded Liberto, in a raised and angry voice, for passing through the kitchen the prior night. As the two women then rose from the table and pushed in their chairs, Clubb threatened, “I'm gonna get you. I'm gonna go to [hotel owner] Dr. Berger.” Id. at 266. Her voice still loud and angry though somewhat lower than before, Clubb capped the threat by looking directly at Liberto and again calling her a “porch monkey.” Id. at 266–68.

On September 16, 2010, Liberto arranged to speak with Human Resources Director Nancy Berghauer by telephone the following day. During the September 17 phone call, Liberto complained that she had been racially harassed by Clubb. From handwritten notes, Berghauer prepared a typewritten summary of her discussion with Liberto, which included Liberto's allegation that Clubb called her a “porch monkey” on September 15. Berghauer provided the summary on September 17 to Dr. Berger and General Manager Mark Elman, and Elman met with Liberto on September 18 to further discuss her complaint. Meanwhile, although Clubb denied ever using the term “porch monkey,” Heubeck issued her a written notice on September 18 advising that, as “a member of our Food & Beverage Management team ..., [Clubb] is expected to conduct herself as such” and “needs to be cautious the language or phrases she uses can not be perceived as racist or...