Wake Forest Law Review

By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

By Mickey Herman

On Thursday, March 16, 2017, the Fourth Circuit issued a published opinion in United States ex rel. Carson v. Manor Care, Inc., a civil case. Plaintiff-appellant, Patrick Carson, on behalf of the United States, appealed the dismissal of his False Claims Act (“FCA” or “Act”) qui tam and retaliation claims as well as related state fraud claims, arguing that none were barred by the FCA’s first-to-file rule. After evaluating Carson’s claims in turn, the Fourth Circuit affirmed with respect to his qui tam claims, but vacated and remanded the portion of the trial court’s decision as it related to his retaliation and state fraud claims.

Facts & Procedural History

In early 2009, Christine Ribik filed a qui tam suit on behalf of the United States against Manor Care, alleging violations of the FCA arising from overbilling of the government for medical services. Specifically, she contended that the nursing facility operator “regularly and fraudulently classified . . . patients as needing more physical therapy than necessary,” “instructed its physical therapists to spend more time than needed with the patients,” “sent some patients to physical or occupational therapy who did not need it at all,” and “refused to discharge patients for whom physical therapy was no longer useful.”

In September 2011, Carson filed a qui tam suit on behalf of the United States and several states against Manor Care, alleging violations of the FCA (and its state-level equivalents) markedly similar to those asserted by Ribik. In addition, Carson asserted a FCA retaliation claim, contending that his termination from Manor Care was a direct and impermissible result of “his repeated complaints about the fraudulent . . . practices.”

The two cases were consolidated in 2012 and the United States Government subsequently intervened in the action. The district court denied Manor Care’s motion to dismiss the Government’s complaint. It granted, however, the defendant’s motion to dismiss Carson’s complaint, concluding that “the FCA’s first-to-file rule barred all of [his] claims.” Carson appealed.

Qui Tam Claims

The Court first considered whether the first-to-file rule barred Carson’s qui tam claims. Pursuant to its qui tam provision, the FCA permits private citizens to sue on the federal government’s behalf for violations of the Act. However, “[w]hen a person brings an action under [the qui tam] subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” To determine whether a subsequently-filed suit is based on the facts underlying a pending complaint, the Court applies the “material elements test,” which “bars later suit ‘if it is based upon the same material elements of fraud as the earlier suit, even though the subsequent suit may incorporate somewhat different details.’” Although Carson argued that his “allegations go well beyond [Ribik’s],” the Court, after thoroughly comparing the complaints’ allegations, disagreed. It also rejected Carson’s assertion that their complaints’ consolidation protects his claims from the first-to-file bar, emphasizing that the relevant statutory language explicitly prohibits intervenors other than the Government. It thus affirmed the district court’s dismissal of Carson’s qui tam claims.

Retaliation Claim

The Court turned next to Carson’s retaliation claim. “The FCA prohibits employers from retaliating against any employee ‘because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.’” Noting that the district court dismissed this claim on the same grounds as the qui tam claims—the first-to-file rule—the Court endeavored to determine whether retaliation claims fall within the scope of that rule. Considering first the relevant statutory language and structure, the Court emphasized that the first-to-file rule is subsumed by, and therefore only limits, the Act’s qui tam provisions. The Court continued by emphasizing that barring a whistle-blower’s retaliation claim on such grounds makes little sense, both because such claims are considered personal to the plaintiff (unlike the qui tam claims, which effectively belong to the Government) and due to the risk of deterring whistle-blowers. For these reasons, the Court vacated the district court’s dismissal as to Carson’s retaliation claim and remanded the issue for proceedings consistent with the proper scope of the first-to-file rule.

State Fraud Claims

Finally, the Court considered whether the FCA’s first-to-file rule was properly applied to Carson’s state fraud claims. Determining that the district court failed to “support its decision with any discussion or authority to establish that any of the states apply the FCA first-to-file rule, or its equivalent, to that state’s statute,” the Court vacated and remanded the issue to the district court.

Conclusion

Agreeing that the FCA’s first-to-file rule barred Carson’s qui tam claims, the Court affirmed the district court to that extent. It refused, however, to extend the scope of the first-to-file rule to Carson’s retaliation and state fraud claims. It therefore vacated the district court’s judgment as to those issues, and remanded for further proceedings.

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

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By Sarah Walton 

On August 10, 2015, the Fourth Circuit issued a published opinion in the civil case of Smith v. Clark. The Fourth Circuit held that the plaintiff stated a claim under the False Claims Act and affirmed the district court’s holding in part, reversed in part, and remanded for further proceedings.

Smith Alleged Violations of the False Claims Act and the District Court Dismissed the Complaint

From 2012-2013, plaintiff Brian K. Smith (“Smith”) worked on several construction projects on Washington D.C. landmarks, including the Smithsonian and the City Market on O Street. Because these were sizable projects, the Davis-Bacon Act (“DB Act”) applied to Smith’s work. Under the DB Act, contractors and subcontractors cannot pay workers less than the prevailing wage in that geographic area. The Secretary of Labor sets the prevailing wage in accordance with the type of task that an employee performs. In the event of a dispute concerning the classification of a task, the Department of Labor will determine the appropriate pay grade.

Smith alleged that his work was misclassified and, as a result, he received less pay than the DB Act required. Smith made an oral complaint with the Department of Labor about the discrepancy. Smith further alleged that the Department of Labor investigated and concluded that Smith was paid less than the DB Act’s minimum requirements. After the investigation, Smith was reassigned to a project in which he received lower wages.

Smith then filed a complaint in the District Court for the District of Maryland, alleging, in pertinent part, violations of the False Claims Act (“FCA”). Smith complained that defendants Shirley Construction Company and Clark Construction Group (collectively, “Defendants”) reported false information when they failed to categorize his work properly and subsequently retaliated against him when he reported the infractions. Under Section 3730(b)(2) of the FCA, a plaintiff must file the complaint under seal. Smith’s attorney filed the complaint under seal, but over the next few days, disclosed to the Defendants that a complaint had been filed against them. When the government became aware of the allegations, it moved to partially lift the seal. The government investigated the allegations and decided not to intervene. The Defendants then filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The district court dismissed the complaint with prejudice. The district court dismissed the complaint for three reasons: (1) Smith’s violation of the FCA’s seal requirements, (2) jurisdictional deficiencies, and (3) Fed. R. Civ. P. 9(b) pleading deficiencies.

The District Court Erred in Dismissing Smith’s Claims on Procedural Grounds

A violation of the FCA’s seal requirements warrants dismissal when the violation “incurably frustrates” the statutory purpose. The Fourth Circuit determined that the FCA’s seal requirement had the following purposes: “(1) to permit the United States to determine whether it already was investigating the fraud allegations (either criminally or civilly); (2) to permit the United States to investigate the allegations to decide whether to intervene; (3) to prevent an alleged fraudster from being tipped off about an investigation; and, (4) to protect the reputation of a defendant in that the defendant is named in a fraud action brought in the name of the United States, but the United States has not yet decided whether to intervene.” The Fourth Circuit held that violation of the seal requirement did not incurably frustrate the FCA’s statutory purpose, reasoning that the government properly investigated the allegations and that the Defendants did not suffer any harm because Smith’s attorney made the disclosures to counsel, rather than to the public.

The Fourth Circuit also determined that the District Court erred in reasoning that even if violating the seal requirements did not warrant dismissal, Smith could not proceed because of (1) jurisdictional deficiencies and (2) his failure to meet the pleading requirements under Fed. R. Civ. P. 9(b).

On the jurisdictional deficiencies issue, the district court invoked the “primary jurisdiction doctrine.” This doctrine allows courts to refer matters to an agency when the agency may have more expertise to make a determination. Thus, because the Secretary of Labor was authorized to determine whether Smith’s work was misclassified, the district court referred the matter to the Department of Labor. However, after the district court made the referral, it dismissed Smith’s claims with prejudice. The Fourth Circuit held that the district court should have stayed or dismissed the action without prejudice, pending the agency determination.

Regarding the Fed. R. Civ. P. 9(b) requirements, Smith’s attorney made an oral motion to amend the complaint in response to the district court’s concerns about Smith’s inability to meet the pleading requirements. The district court denied the motion. The Fourth Circuit affirmed the denial of the motion to amend, reasoning that Smith had met all of the pleading requirements in accordance with Fed. R. Civ. P. 9(b), which negated any need to amend the complaint.

The Fourth Circuit Reverses the District Court’s Dismissal of the Retaliation Claim 

In order to state a claim for retaliation, the plaintiff must show that he (1) engaged in a protected activity, (2) the employer knew about the activity, and (3) the employer took an adverse action against him as a result of the activity. While the district court held that Smith could not show that his employer knew about the activity, the Fourth Circuit reasoned that because Smith made a complaint to the Department of Labor, this satisfied the knowledge prong. As a result, the Fourth Circuit held that the district court erred when it dismissed Smith’s retaliation claim.

The Fourth Circuit Affirms in Part, Reverses in Part, and Remands for Further Proceedings

The Fourth Circuit affirmed the district court’s denial of Smith’s motion to amend and reversed the district court’s holding on the remaining claims on appeal. The court remanded the case to the district court for further proceedings.

By Taylor Ey

Did the District Court Err in Granting Defendants’ Motion for Summary Judgment for Plaintiff’s Discrimination and Retaliation Claims Brought Under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981?

On May 13, 2015, the Fourth Circuit issued its published opinion in the civil case of Boyer-Liberto v. Fontainebleau Corp.  Plaintiff Reya Boyer-Liberto was previously employed at Defendant Fontainebleau Corp., as a hostess at a restaurant in the Clarion Resort Fontainebleau Hotel.  At district court, Defendant submitted a motion for summary judgment, which the district court granted because Plaintiff’s evidence of offensive conduct, two conversations with a coworker, was too vague to support her claims of discrimination and retaliation under Title VII of the Civil Rights Act (“Title VII”) or 42 U.S.C § 1981.  The Fourth Circuit, in a split decision, affirmed the district court’s decision to grant Defendant’s motion for summary judgment.

The Facts Were Insufficient to Demonstrate a Discriminatorily Hostile or Abusive Environment

To find a hostile work environment as prohibited by Title VII and 42 U.S.C. § 1981, a plaintiff must show that the workplace is “permeated” with discriminatory insult, that the discrimination alters the conditions of the work environment and the discrimination creates an abusive working environment.  Plaintiff only provided two examples demonstrating discriminatory insult.  In both cases, each on consecutive days and with the same coworker, Plaintiff was in a conversation, where she was called a “porch monkey,” a severely insulting and racially derogatory name.  However, the Fourth Circuit explained that these two instances are isolated: Together they do not demonstrate that any one else made hostile statements towards her, or that this same employee made more of the same kind of statements.  Thus,  the Fourth Circuit concluded unanimously that the Plaintiff did not demonstrate a hostile work environment under Title VII or 42 U.S.C. § 1981.

The Facts Were Insufficient to Demonstrate That Plaintiff Had an Objectively Reasonable Belief That She Was Being Subjected to Unlawful Harassment

To demonstrate retaliation, a plaintiff must how that she “responded to an employment practice that she reasonably believed was unlawful.”  In this case, Plaintiff provided two examples where a coworker, who she later found out was a restaurant manager, called her a derogatory name.  The Fourth Circuit majority thought it was unlikely that Plaintiff would have an objectively reasonable belief that she was being unlawfully harassed because Plaintiff mistook the speaker for a coworker.  Further, the fact did not lead the majority to believe that this was the type of situation that would “ripen” into a hostile environment because both incidents were isolated.  Thus, the Fourth Circuit, split 2-1, concluded that Plaintiff did not demonstrate an objectively reasonable belief required for a retaliation claim under Title VII or 42 U.S.C. § 1981.

The Fourth Circuit Affirmed the District Court’s Decision

Because the facts in the record, taken in the light most favorable to the non-movant, did not provide sufficient evidence such that a reasonable juror could find that Plaintiff was working in a hostile work environment or that Plaintiff had an objective believe that she was subjected to unlawful harassment, the Fourth Circuit affirmed the district court’s decision granting Defendants’ motion for summary judgment.

The Chief Judge Dissented in Part as to the Retaliation Claims

The Chief Judge authored a dissent, explaining that he agreed with the dissent in the case relied upon by the majority, Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  In Jordan, Judge King described that the majority’s narrow interpretation of “what constitutes a reasonable belief” that a violation of Title VII is occurring is a “Catch-22 situation.”  As the law currently stands under Jordan, the employee can either choose to report the behavior, and risk losing her job, or continue working in the hostile environment, and lose her dignity.  Under the facts in this case, the Chief Judge stated that Plaintiff could have reasonably believed that the coworker’s conduct was actionable.  Thus, the Chief Judge respectfully dissented, and would have reversed the grant of summary judgment on Plaintiff’s retaliation claims.