This case presents the issue of the continuing vitality of Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), petition for rehearing en banc denied by evenly divided court, 467 F.3d 378 (4th Cir. 2006), cert. denied, 549 U.S. 1362 (2007). The panel relied on Jordan to affirm summary judgment on a retaliation claim brought by an employee who lost her job four days after complaining that a manager had twice called her a “porch monkey,” which this Court has recognized is a highly offensive racial epithet.
Applying the standard enunciated in Jordan, the panel held that the employee, Liberto, had no Title VII retaliation claim because the conduct about which she complained was not sufficiently severe or pervasive to support “an objectively reasonable belief that a hostile work environment existed.” Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2014 WL 1891209, at *8 (4th Cir. May 13, 2014). In 2006, the eligible judges’ votes were split 5-5 regarding whether that standard for Title VII retaliation claims should be reconsidered; as a result of the tie, a rehearing in Jordan was denied. Judge King wrote a dissenting opinion in which Chief Judge Wilkins and Judges Michael, Traxler, and Gregory joined. See Jordan, 467 F.3d at 381-83 (King, J., dissenting). The reasons stated by the five dissenters were compelling then, and they are even more so now in light of the Supreme Court’s multiplicity of subsequent decisions condemning retaliation. See, e.g., Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,Tenn., 555 U.S. 271 (2009); CBOCS West, Inc. v. Humphries, 553 U.S. 442(2008); Gomez-Perez v. Potter, 553 U.S. 474 (2008).
Of those recent cases, the panel’s decision collides most substantially with Crawford v. Metropolitan Government of Nashville and Davidson County,Tennessee. Crawford holds that it is protected activity for an employee to provide a “disapproving account of sexually obnoxious behavior” in response to a human resources official’s generic question whether that employee had ever witnessed “‘inappropriate behavior’ on the part of” a manager. Crawford, 555 U.S. at 274-76. Under Crawford, Title VII anti-retaliation “protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Id. at 273. By contrast, according to the panel’s decision in this case, if an employee witnessed a single incident of racial or sexual harassment—e.g., use of the word “n--er”—and reported the incident to an inquiring employer, he or she would have no protection from being fired for providing that truthful answer. That position simply cannot be reconciled with the Supreme Court’s jurisprudence, which emphasizes that “Title VII depends for its enforcement” not only “upon the cooperation of employees who are willing to file complaints” but also “upon the cooperation of employees who are willing to . . . act as witnesses.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
The panel’s application of the Jordan standard further undermines Title VII because it denies protection to employees who follow the guidance of the Supreme Court and the Fourth Circuit by reporting harassment at the first opportunity. The Supreme Court has established an affirmative defense for employers in hostile work environment cases where the plaintiff has “unreasonably failed to take advantage of” an internal grievance or complaint procedure provided by the employer. Burlington Industries, Inc. v. Ellerth, 524 U.S 742, 765 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). In order to comply with the doctrine, employees must “report harassing conduct before it becomes severe or pervasive.” Penn. State Police v. Suders, 542 U.S. 129, 145 (2004) (quoting Ellerth, 524 U.S. at 764) (emphasis added). See also Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261 (4th Cir. 2001) (strictly applying the early reporting requirement). The panel’s decision irreconcilably conflicts with the early reporting requirement by permitting employers to retaliate against workers for making exactly the reports that the Supreme Court requires.In counsel’s judgment, the panel’s decision conflicts with the decisions of the Supreme Court in Burlington Industries, Inc. v. Ellerth; Faragher v. Boca Raton; Pennsylvania State Police v. Suders; Burlington Northern & Santa Fe Railway Co. v. White; and Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, and with this Court’s decision in Matvia v. Bald Head Island Management, Inc. These conflicts are not addressed in the panel’s opinion. Accordingly, Amici respectfully request that this Court grant the Plaintiff- Appellant’s petition for rehearing en banc.
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