Reya Boyer-Liberto v. Fontainebleau Corporation

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1473

REYA C. BOYER-LIBERTO,

Plaintiff - Appellant,

v.

FONTAINEBLEAU CORPORATION, trading as Clarion Resort
Fontainebleau Hotel; LEONARD P. BERGER,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cv-00212-JKB)

Argued: January 29, 2014 Decided: May 13, 2014

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.

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.
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

2
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

3
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

4
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.”

5
 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

6
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

7
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’ information and her belief was “a boilerplate

disclaimer” that is “commonly used.” She explains, “Obviously,

a lay plaintiff cannot be expected to answer complicated

discovery requests fully and accurately without the benefit of

counsel.”

As the Advisory Committee’s notes to Federal Rule of Civil

Procedure 56 observe, “the very mission of the summary judgment

8
procedure is to pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.” Fed.

R. Civ. P. 56 advisory committee’s note (1963 amends.) (emphasis

added). Because the Rule is a mechanism to obviate trial, the

facts forming the basis for a summary judgment must (1) be

material, Fed. R. Civ. P. 56(a); (2) be undisputed, id.; and (3)

be admissible in evidence, Fed. R. Civ. P. 56(c)(2), (4). Thus,

a declarant of facts used to support or oppose a motion for

summary judgment must demonstrate that he or she has personal

knowledge of the facts and is competent to testify to them. See

Fed. R. Civ. P. 56(c)(4); see also Szego v. Comm’r, No. 91-2153,

1993 U.S. App. LEXIS 14645, at *4-5 (4th Cir. June 17, 1993)

(per curiam) (concluding that interrogatory answers were not

properly in the summary judgment record because they were filed

by the defendant’s attorney and not based on the defendant’s

personal knowledge); Williams v. Griffin, 952 F.2d 820, 823 (4th

Cir. 1991) (noting that a verified complaint could be used to

oppose a motion for summary judgment “when the allegations

contained therein [were] based on personal knowledge” (emphasis

added)); Md. Highways Contractors Ass’n v. Maryland, 933 F.2d

1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is

inadmissible at trial, cannot be considered on a motion for

summary judgment”).

9
 While it is no doubt true that answers to interrogatories

are routinely given on “knowledge, information and belief,” if a

declarant wishes to use such answers to support or oppose a

motion for summary judgment, she must either state the

information in an affidavit that complies with Rule 56 or

execute the answers to interrogatories on personal knowledge.

In this case, Liberto did neither. Liberto supplied her

answers to interrogatories based not only on her own knowledge,

but also on information she received from others and on her

belief that the information was true. And in this case, the

information was explicitly stated to have been obtained from her

agents, representatives, and attorney. Such evidence certainly

would not be admissible at trial, as it would amount to hearsay,

speculation, or both.

We conclude that the district court did not err in

excluding Liberto’s answers to interrogatories from

consideration as part of the summary judgment record.

III

Liberto next contends that the district court erred in

ruling as a matter of law that the undisputed facts in the

summary judgment record, viewed in the light most favorable to

her, did not demonstrate a hostile work environment, as

prohibited by Title VII and 42 U.S.C. § 1981. She argues that

10
the use of the term “porch monkey” was particularly severe and

humiliating and that, because the duration of her employment was

short, Clubb’s two uses of the term were relatively frequent.

Moreover, she argues, because Clubb was physically close to her

during the first conversation when the term was used, it was

threatening.

The “porch monkey” term that Clubb used was indeed racially

derogatory and highly offensive, and nothing we say or hold

condones it. Nonetheless, we conclude that a coworker’s use of

that term twice in a period of two days in discussions about a

single incident was not, as a matter of law, so severe or

pervasive as to change the terms and conditions of Liberto’s

employment so as to be legally discriminatory.

Title VII makes it unlawful for an employer to discriminate

against an individual with respect to her compensation, terms,

conditions, or privileges of employment because of her race,

color, religion, sex, or national origin. See 42 U.S.C. §

2000e-2(a)(1). And requiring an employee to work in a

“discriminatorily hostile or abusive environment” violates that

provision. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993). 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

11
working environment.” Id. (internal quotation marks and

citation omitted). In making a determination whether an

employer has created an abusive working environment, a court is

required to examine “all the circumstances[, including] the

frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Id. at 22; see also Okoli v. City

of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

Viewing the facts of the summary judgment record, we

conclude that Liberto has not presented evidence such that a

reasonable juror could find that her workplace was “permeated

with discriminatory intimidation, ridicule, and insult that

[was] sufficiently severe or pervasive to alter the conditions

of [her] employment and create an abusive working environment.”

Harris, 510 U.S. at 21 (internal quotation marks and citation

omitted). Particularly important is the fact that Liberto

points to only two conversations, on consecutive days, in which

Clubb called her a “porch monkey,” both of which arose from a

single incident at the Clarion. Our cases have made it clear

that “[u]nlike other, more direct and discrete unlawful

employment practices, hostile work environments generally result

only after an accumulation of discrete instances of harassment.”

Jordan v. Alternative Resources Corp., 458 F.3d 332, 339 (4th

12
Cir. 2006); see also Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 115 (2002) (“Hostile environment claims are different

in kind from discrete acts. Their very nature involves repeated

conduct”). While Clubb’s statements to Liberto were racially

derogatory and highly offensive, as we have noted, they were

singular and isolated, and Liberto has not pointed to any other

specific indicators in the record that Clubb, or any other

employee, made racist or hostile statements to her.

Liberto relies on three cases that, she argues, support her

claim of racial discrimination through a hostile work

environment: Tawwaab v. Virginia Linen Servs., Inc., 729 F.

Supp. 2d 757 (D. Md. 2010); Spriggs v. Diamond Auto Glass, 242

F.3d 179 (4th Cir. 2001); and Ayissi-Etoh v. Fannie Mae, 712

F.3d 572 (D.C. Cir. 2013). None of these cases, however,

advances her argument.

In Tawwaab, an African-American employee at a linen and

laundry service was consistently harassed by his supervisor,

Miller, regarding his race. As the court observed:

Carter alleges that Miller constantly used racial
slurs and profane insults in his presence in reference
to the African–Americans he supervised that included
the terms “dumb,” “stupid,” “motherfuckers,” “black
motherfuckers,” “bastards,” “black bastards,” and
“black Fresh Princes of Bel–Air.” Carter alleges that
Miller did not use this type of invective when
addressing white employees. He specifically
identifies an incident wherein Miller said of Virgil
Wingate, another African–American route sales
representative: “I can’t stand that black

13
 motherfucker. I’m going to kick that black bastard’s
ass and drag his motherfucking ass across the fucking
parking lot, black bastard. I can’t stand that
motherfucker.”

* * *

Miller also allegedly made racial jokes in Carter’s
presence about traditional African–American hairstyles
and “ethnic-sounding” names. In addition, Miller kept
a statue on his desk of what Plaintiffs assert is an
African–American golf caddy with the appearance of a
monkey, and that Miller would deliberately place this
statue in front of Carter and other African–American
employees when he would meet with them, as if to say,
“This is what I think of you. You are monkeys to me.”

Id. at 766. In denying the defendant’s summary judgment motion,

the court noted that the plaintiff “identified approximately ten

actionable incidents of harassment that took place between 2005

and 2007” and that several of the incidents were particularly

offensive, involving “at least some kind of physical threat.”

Id. at 778. In contrast, Liberto only refers to two

conversations, about a single incident, occurring on consecutive

days, during which Clubb twice used a racial epithet.

Similarly, in Spriggs, the offensive statements at issue,

which were made by the plaintiff’s supervisor, included nearly

every racist insult one can imagine, including “nigger,” “black

bitch,” “monkey,” and “dumb monkey,” extending repeatedly over

the course of two stints of employment spanning three years.

242 F.3d at 182. In vacating summary judgment entered in favor

of the defendants, the court emphasized the “frequency” of the

14
comments. Id. at 185. Again, that circumstance is not

presented in this case.

Finally, in Ayissi-Etoh, the plaintiff -- an African-

American senior financial modeler -- asked a white supervisor

why he had not received a raise in conjunction with a recent

promotion. Ayissi-Etoh, 712 F.3d at 574-75. In response, he

was told, “For a young black man smart like you, we are happy to

have your expertise; I think I’m already paying you a lot of

money.” Id. at 575. Several months later, during a discussion

with a more direct supervisor about the plaintiff’s work

responsibilities, the supervisor yelled at him, “Get out of my

office nigger.” Id. The plaintiff was forced to continue

working with the second supervisor, eventually causing the

plaintiff to have an anxiety disorder and miss work. The

plaintiff brought, inter alia, a hostile work environment claim

and a claim that he was denied a raise because of his race, both

under 42 U.S.C. § 1981. The D.C. Circuit concluded that the

defendant was not entitled to summary judgment on either claim.

Id. at 576-77. Those circumstances, however, are substantially

distinguishable from those in this case. First, as the court in

Ayissi-Etoh noted, the hostile work environment was not

precipitated by a single event, but rather by two independent

statements having ongoing applicability, made by two different

supervisors of the plaintiff, ultimately leading to health

15
problems and directly causing the plaintiff to miss work. Id.

Additionally, the racist comments were made during conversations

directly about the plaintiff’s pay and work assignments -- clear

situations in which the statements “alter[ed] the conditions of

the victim’s employment.” Harris, 510 U.S. at 521. In

contrast, this case presents statements made by a coworker, that

did not relate to Liberto’s terms of employment and did not have

long-term ongoing consequences.

Liberto has not pointed to any Fourth Circuit case, nor

could she, finding the presence of a hostile work environment

based on a single incident. Compare Jordan, 458 F.3d at 340

(addressing a single racist statement directed in response to a

television news report and made in the presence of plaintiff and

noting that it was “a far cry from alleging an environment of

crude and racist conditions so severe or pervasive that they

altered the conditions of [plaintiff’s] employment”), with

Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002)

(denying summary judgment where plaintiff was “subjected, on a

daily basis, to verbal assaults of the most vulgar and

humiliating sort”); Conner v. Schrader-Bridgeport Int’l, Inc.,

227 F.3d 179, 196 (4th Cir. 2000) (noting “frequency and

regularity of the unwelcome conduct”); Amirmokri v. Baltimore

Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (“[C]o-

workers abused [plaintiff] almost daily, calling him names like

16
‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir of

Waldorf’”).

Liberto’s hostile work environment claim under 42 U.S.C. §

1981 is governed by the same principles applicable to her

hostile work environment claim under Title VII. See Spriggs,

242 F.3d at 184. And because we conclude that Liberto has not

demonstrated a hostile work environment under Title VII, we

likewise conclude that she has not done so under § 1981. *

IV

Finally, Liberto contends that the district court erred in

dismissing her retaliation claims under Title VII and 42 U.S.C.

§ 1981. She asserts that her employment was terminated because

she complained about Clubb’s “porch monkey” statements. In

*
Defendants also argue that Clubb was not Liberto’s
“supervisor” and therefore that her comments were not imputable
to defendants for purposes of a violation of Title VII or §
1981. See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
They note that Clubb did not have any direct hiring and firing
power over Liberto, pointing to Clubb’s statement that she did
not “make [hiring] decisions. Those [were] made by human
resources and the manager, the other manager.” Moreover,
Liberto conceded that she did not consider Clubb her supervisor.
And when Liberto’s employer learned of Clubb’s offensive
comments, it did admonish Clubb, and no further similar incident
occurred. See Vance, 133 S. Ct. at 2441 (noting that when a
coworker’s conduct is the basis of a hostile work environment
claim, employer’s liability is based on negligence “with respect
to the offensive behavior”). But because we have concluded that
Clubb’s statements to Liberto did not create a severe or
pervasive hostile work environment, we need not reach whether
Clubb was in fact a supervisor, thus imputing liability to the
Clarion, or whether the Clarion was negligent in how it
responded to Liberto’s complaint.

17
entering summary judgment on this claim, the district court

concluded that she “lacked an objectively reasonable belief that

she was actually being subjected to unlawful harassment.”

Liberto nonetheless argues that rather than assessing whether

she had an objectively reasonable belief of harassment, the

district court, by requiring that the conduct be sufficiently

severe or pervasive, required her to prove actual harassment.

In arguing that her belief was an “objectively reasonable” one,

she relies on the offensiveness of the “porch monkey” epithet.

To demonstrate retaliation, a plaintiff must show that she

was terminated because she engaged in protected activity --

i.e., because she “respond[ed] to an employment practice that

[she] reasonably believe[d] [was] unlawful.” Jordan, 458 F.3d

at 338 (emphasis added). Liberto contends that she had such an

objectively reasonable belief based on Clubb’s two statements

made in relation to the incident on September 14, 2010.

But just as her claim as to an actual hostile work

environment failed as a matter of law, her claim that she had an

objectively reasonable belief that she was complaining about a

hostile work environment fares no better in the circumstances of

this case. The conversations forming the basis for Liberto’s

belief were isolated to one coworker about one incident over two

days. And Liberto concedes that Clubb had not called her by

racial epithets before or after the conversations at issue here.

18
Moreover, Liberto’s relationships with her supervisors and her

other coworkers were free from such epithets.

In addition, when these conversations occurred, Liberto

thought that she was simply being redressed by a coworker, not

her supervisor. When Liberto was asked whether she knew that

Clubb was the restaurant manager, Liberto emphatically testified

that she did not. In response to the follow-up question, “You

never knew throughout your entire employment with the Clarion

that she was a manager?” she responded:

Never. I reported to Jamie, and Jamie, as a matter of
fact, told me not to go to [Clubb] because [Clubb] did
not have the power to do voids or make decisions. I
had to report to Jamie or Richard. And at the time
[Clubb] did not hold any management cards or keys as
Jamie did.

Liberto explained that she would only listen to Clubb as she

would to any other person that she worked with. In these

circumstances, Liberto’s understanding of Clubb’s role lessens

the risk that Clubb’s statements alone caused Liberto to

reasonably believe that Clarion had altered the terms and

conditions of her employment. See Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 763 (noting that “a supervisor’s power

and authority invests his or her harassing conduct with a

particular threatening character”).

Finally, the analysis of the hostile work environment claim

that we conducted earlier in this opinion tends to confirm the

19
absence of an objectively reasonable belief that a violation had

occurred. In the circumstances of this case, if no objectively

reasonable juror could have found the presence of a hostile work

environment, as we today hold, it stands to reason that Liberto

also could not have had an objectively reasonable belief that a

hostile work environment existed.

In short, we conclude that Liberto could not have had an

objectively reasonable belief that, in complaining to management

about the two related conversations, she was complaining about

conduct that was unlawful either under Title VII or § 1981.

Liberto points out that under Title VII, she “need not wait

until her work environment is actually hostile and threatening”

before her opposition is protected. She is correct in noting

that where conduct is likely to ripen into a hostile work

environment, the employee’s opposition may be protected before

the hostile environment has fully taken form. See Jordan, 458

F.3d at 340; E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397

(4th Cir. 2005). But this case does not present any indicators

that the situation at the Clarion would have ripened into a

hostile work environment. There was no series of events that

were “set in motion” by Clubb’s statements, unlike cases where

we have denied summary judgment on a retaliation claim because

the conduct complained of was likely to lead to a Title VII

violation. See, e.g., Navy Fed., 424 F.3d at 406-08; see also

20
Jordan, 458 F.3d at 341 (“[W]e cannot simply assume, without

more, that the opposed conduct will continue or will be repeated

unabated”). Indeed, after the incident, Clarion management

warned Clubb, and Clubb and Liberto thereafter had no further

contact. Moreover, Liberto has pointed to no other specific

indicators in the record to evince that workplace racism was

afoot before then.

Just as in Jordan, we conclude here that “while in the

abstract, continued repetition of racial comments of the kind

[Clubb] made might have led to a hostile work environment, no

allegation in the [record] suggests that a plan was in motion to

create such an environment, let alone that such an environment

was even likely to occur.” Jordan, 458 F.3d at 340; see also

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“A

recurring point in [Supreme Court opinions on hostile work

environments] is that . . . offhand comments[] and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of

employment’” (emphasis added)); Greene v. A. Duie Pyle, Inc.,

170 F. App’x 853, 856 (4th Cir. 2006) (per curiam) (concluding

that employer was entitled to summary judgment on retaliation

claim because plaintiff, when he made his complaint, did not

have an objectively reasonable belief that his employer

maintained a hostile workplace where sexual magazines and

21
inappropriate jokes were often posted); Butler v. Ala. Dep’t of

Transp., 536 F.3d 1209, 1213-14 (11th Cir. 2008) (holding that

coworker’s use of the word “nigger” twice in negative reference

to a third party was not enough to give plaintiff an objectively

reasonable belief that a racially hostile work environment

existed so as to support a retaliation claim).

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

22
SHEDD, Circuit Judge, concurring:

I agree with Judge Niemeyer and Chief Judge Traxler that,

under our precedent, as a matter of law the facts of this case

do not demonstrate a hostile work environment. Based on this

Court’s decision in Jordan v. Alternative Resources Corp., 458

F.3d 332 (4th Cir. 2006), I agree with Judge Niemeyer that

summary judgment should also be affirmed on the retaliation

claim.

23
TRAXLER, Chief Judge, concurring in part and dissenting in part:

I agree that under existing precedent, Liberto has not

demonstrated a hostile environment under Title VII or § 1981.

However, because I believe the district court erred in granting

summary judgment on her retaliation claims, I dissent in part.

I.

Viewing the facts in the light most favorable to Liberto,

as we must in reviewing an order granting summary judgment

against her, see Bland v. Roberts, 730 F.3d 368, 372 (4th Cir.

2013), the record reveals the following. Clarion is a hotel

containing guest rooms, a conference center, several restaurants

and bars, a banquet facility, and a nightclub. Liberto, who is

African-American, began working for Clarion in early August

2010. She trained in each of the hotel’s food and beverage

positions, including morning restaurant hostess, cocktail

waitress, restaurant server, bartender, and banquet-facility

server.

On the night of September 14, Liberto was working the

cocktail shift when one of her customers ordered a drink that

was fairly complicated and time-consuming to make. When the

bartender on duty at the main bar refused to make the drink, the

bartender at the “pub bar” agreed to do so. After picking up

the drink from the pub bar, Liberto passed through the kitchen

and into the dining room in order to bring the drink to her

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customer. While Liberto was still in the dining room, Trudy

Clubb, a weekend manager for the hotel, approached her and began

“screaming loudly” at her. J.A. 239. Clubb, who is Caucasian,

was a long-time employee of the hotel and friend of Dr. Leonard

Berger, the hotel’s owner. * Apparently, Clubb had attempted to

get Liberto’s attention as Liberto was passing through the

kitchen, but Liberto had not heard her. Clubb yelled to

Liberto, “Hey, you. Girl that can’t hear,” and briskly came up

to her. J.A. 238. Liberto turned away from Clubb and looked at

a computer screen, which further agitated Clubb. As Clubb

yelled at Liberto, she stood so close to her that Liberto “could

feel her breath” and Clubb’s spittle flew into Liberto’s face.

J.A. 241.

As Liberto attempted to proceed into the dining room to

serve a customer, Clubb continued yelling at her, telling her

not to walk away. Clubb told Liberto that she was not allowed

to go through the kitchen, and she called Liberto “deaf” and

told her that Clubb “was going to get” her and “make [her]

sorry.” J.A. 250, 252-53. Then she called Liberto either a

“damn . . . porch monkey” or “dang[] porch monkey” and exited

the dining room. J.A. 258. “Porch monkey” is a racial slur

*
When Liberto was first introduced to Clubb, Clubb told
her, “[Y]ou look like Stacy, but Stacy’s nice.” J.A. 212.

25
used against African-Americans. See White v. BFI Waste Servs.,

L.L.C., 375 F.3d 288, 297 (4th Cir. 2004).

The next day, Liberto received similar treatment from

Clubb. Before her dinner shift, as Liberto was in the hotel’s

management office speaking to Clarion’s Food and Beverage

Director Richard Heubeck about what had happened the night

before, Clubb came into the office, cut Liberto off, and said,

“I need to speak to you, little girl.” J.A. 263. Liberto told

Clubb she was speaking to Heubeck, but Clubb replied that she

was “more important,” and Liberto followed her out of the

office. J.A. 264. As they sat at a table together, Clubb began

to question Liberto again about why she had gone through the

kitchen and whether she had asked anyone if she could do so.

Clubb again became agitated and again began yelling at Liberto

with others in the room. As the two were getting up, Clubb

threatened that “she was going to go to Dr. Berger” and was

“going to make [Liberto] sorry.” J.A. 266-67. She then, in a

loud voice, again called Liberto a “porch monkey.” J.A. 267.

Two days later, on September 17, 2010, Liberto complained

to Nancy Berghauser, who was Clarion’s director of human

resources, that on September 14, Clubb, when berating her for

cutting through the kitchen and for not responding to Clubb’s

attempts to get Liberto’s attention, had called Liberto a “porch

monkey[]” and told Liberto that Clubb was going to “‘speak with

26
Dr. Berger’” and “‘make [Liberto] sorry.’” J.A. 316. Later the

same day, Berghauser forwarded her typed notes from her

conversation with Liberto to Dr. Berger and Mark Elman, who was

the hotel’s general manager. Upon receiving information about

Liberto’s allegations, Dr. Berger asked Heubeck about Liberto.

At the end of their conversation, Dr. Berger decided to

terminate Liberto, and Liberto was notified on September 21 that

she was being terminated.

Liberto subsequently filed a complaint with the EEOC

alleging discrimination due to racial harassment and retaliation

– in the form of her discharge – for engaging in protected

activity. The EEOC then issued a right-to-sue letter, and

Liberto brought this action asserting claims of racial

discrimination and retaliation under Title VII and 42 U.S.C.

§ 1981. Following discovery, the defendants filed a motion for

summary judgment that the district court granted.

II.

A plaintiff may demonstrate she was subjected to a racially

hostile work environment under Title VII by proving she

experienced (1) “unwelcome conduct,” (2) that was based upon the

her race, (3) that was “sufficiently severe or pervasive to

alter [her] conditions of employment and to create an abusive

work environment” and (4) that “is imputable to the employer.”

Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

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The same test applies to claims brought under 42 U.S.C. § 1981.

See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.

2001).

I agree with the majority that, under our existing

precedent, particularly Jordan v. Alternative Resources Corp.,

458 F.3d 332 (4th Cir. 2006), the conduct Liberto complained of

as a matter of law did not rise to the level of actionable

harassment. However, I part ways with the majority on the

question of whether that determination necessarily resolves the

retaliation claim as well. See Ante, at 20 (“In the

circumstances of this case, if no objectively reasonable juror

could have found the presence of a hostile work environment, as

we hold today, it stands to reason that Liberto also could not

have had an objectively reasonable belief that a hostile work

environment existed.” (emphasis in original)).

The relevant provision of Title VII, protecting against

retaliation, reads:

It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because he has opposed any practice made an
unlawful employment practice by this title.

42 U.S.C. § 2000e-3(a). “The plain meaning of the statutory

language provides protection of an employee’s opposition

activity when the employee responds to an actual unlawful

employment practice.” Jordan, 458 F.3d at 338. Nevertheless,

28
we have also held that “opposition activity is protected when it

responds to an employment practice that the employee reasonably

believes is unlawful.” Id. (emphasis in original). Thus, even

if the practice opposed does not actually violate Title VII,

opposing the practice can be protected conduct if the employee

has “an objectively reasonable belief that a violation is

actually occurring based on circumstances that the employee

observes and reasonably believes.” Id. at 341.

In determining whether that standard is met here, I believe

it is important to recognize that even “[a] single, sufficiently

severe incident . . . may suffice to create a hostile work

environment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579

(D.C. Cir. 2013) (Kavanaugh, J., concurring) (concluding that

supervisor’s statement to African-American employee, “Get out of

my office nigger,” was sufficient by itself to constitute an

actionable hostile work environment). We have explained before

that “[f]ar more than a ‘mere offensive utterance,’ the word

‘nigger’ is pure anathema to African-Americans.” Spriggs, 242

F.3d at 185. And Liberto may well have held the same belief

about the term “porch monkey.” See id. (noting that the

“constant use of the word ‘monkey’ to describe African Americans

was similarly odious” to the use of the word “nigger”).

We, of course, held in Jordan that an offensive racial

remark made by a coworker did not amount to actionable

29
harassment, but, in so doing, we emphasized that the complained-

of incident was only “a singular and isolated exclamation [that

was] not . . . repeated . . . before or after” and that it was

directed at criminals on television who had been captured, not

at the plaintiff or any fellow employee. Jordan, 458 F.3d at

340. Here, in contrast, Clubb called Liberto herself a porch

monkey and did so in the context of angrily threatening to speak

with her friend, the hotel owner, to get Liberto fired. Also in

contrast to Jordan, Clubb’s use of the epithet was not a single,

isolated occurrence, as she called Liberto the very same name in

the very same threatening context the very next day.

Particularly in light of these significant differences, I

believe that Liberto could have reasonably believed that Clubb’s

conduct was actionable.

I share in the sentiment Judge King expressed so well in

his dissent in Jordan that our very narrow interpretation of

what constitutes a reasonable belief in this context has

“place[d] employees who experience racially discriminatory

conduct in a classic ‘Catch-22’ situation.” Id. at 349 (King,

J., dissenting). They can either report the offending “conduct

to their employer at their peril,” id. at 355 (King, J.,

dissenting), as the Supreme Court has essentially required them

to do in order to preserve their rights, see Faragher v. City of

Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.

30
Ellerth, 524 U.S. 742, 764-65 (1998), or they can “remain quiet

and work in a racially hostile and degrading work environment,

with no legal recourse beyond resignation,” Jordan, 458 F.3d at

355 (King, J., dissenting). Like Judge King, I cannot accept

that an employee in circumstances like these can be forced to

choose between her job and her dignity. See id. at 356. For

these reasons, I respectfully dissent from the affirmance of the

summary judgment against Liberto on her retaliation claims.

31