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Two Remarks Insufficient to Demonstrate Discrimination and Retaliation

By Kristina T. Grimshaw  6/13/2014
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An employee fired shortly after complaining that a co-worker twice referred to her as a “porch monkey” cannot demonstrate hostile work environment discrimination and retaliation, the 4th U.S. Circuit Court of Appeals held.

Reya C. Boyer-Liberto, a black woman, started work as a hostess in one of the Clarion Resort Fontainebleau Hotel’s restaurants on Aug. 4, 2010.  During her employment, Liberto also served food, bartended and worked at banquets. According to Clarion management, Liberto struggled with each of these jobs, behaved unprofessionally and failed the bartending exam.

During the evening of Sept. 14, Liberto walked through the Clarion’s kitchen to place a drink order for a customer in the “pub bar” after the primary bar refused to make a time-consuming beverage. Trudy Clubb, a fellow employee, called out to Liberto not to use the kitchen as a shortcut. Liberto did not hear Clubb, and Clubb subsequently yelled at Liberto for ignoring her. During this conversation, Clubb stood extremely close to Liberto, called her deaf, said she was “going to make [her] sorry,” and called Liberto a “porch monkey.” 

The next day, when Liberto visited the office of Food and Beverage Director Richard Heubeck to complain about Clubb’s behavior, Clubb came in and said, “I need to speak to you, little girl.” Outside the office, Clubb accused Liberto of “abandoning [her] station” the previous day and again called Liberto a “porch monkey.” Liberto reported this conduct to the director of human resources. Clubb, despite denying Liberto’s allegations, received a written warning.

On Sept. 17, Heubeck and Clarion owner Leonard Berger met to discuss Liberto’s performance issues and her conflict with Clubb. Although management advised Berger that firing Liberto “could create a situation” because of her complaint about Clubb, Berger nonetheless terminated Liberto’s employment on Sept. 21. Clubb did not participate in this decision, and Berger said Liberto’s allegations were not a factor in the decision. Liberto sued, alleging hostile work environment race discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981.

The district court ruled for Clarion and Berger, and the 4th Circuit affirmed. The 4th Circuit explained that, although the term “porch monkey” was racially derogatory and highly offensive, a co-worker’s use of the term twice in two days was not sufficiently severe or pervasive to amount to unlawful discrimination or create a hostile work environment.  The court described the statements as “singular and isolated,” arising from a single incident, and noted that Liberto had not pointed to any other racist or hostile statements from Clubb or other employees.

In analyzing Liberto’s retaliation claim, the court found that Liberto could not demonstrate an “objectively reasonable belief” that she was responding to unlawful conduct when she complained about Clubb’s behavior. The court again emphasized that the comments were made by one co-worker over two days, that no other co-workers made racially biased statements, and that Liberto did not believe Clubb was a supervisor—all of which precluded Liberto from forming a reasonable belief that Clubb’s statements, by themselves, reflected a change by Clarion in the terms and conditions of her employment.  

Although employees need not wait for unwelcome conduct to escalate before their complaints receive protection, the court found that nothing in this case suggested that the situation “would have ripened into a hostile work environment.”  In so concluding, the court focused on the lack of other evidence of racial hostility, Clubb’s receipt of a written warning, and the absence of any events being “set in motion” by Clubb’s statements.

Boyer-Liberto v. Fontainebleau Corp., 4th Cir., No. 13-1473 (May 13, 2014).

Professional Pointer: This case reinforces that a discrimination complaint need not forestall performance-related termination decisions. Although such matters should be handled with great care, proper investigation and response to the complaint in the first instance may allow the employer to avoid liability while satisfying its operational needs.

Kristina T. Grimshaw is an attorney with Collazo Florentino & Keil LLP, the Worklaw® Network member firm in New York.


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