Jordan v. Alternative Resources , 467 F.3d 378 ( 2006 )

PUBLISHED
Filed October 13, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT L. JORDAN, 
Plaintiff-Appellant,
v.
ALTERNATIVE RESOURCES
CORPORATION; INTERNATIONAL
BUSINESS MACHINES CORPORATION,
Defendants-Appellees.
 No. 05-1485
CA-04-1091-8-DKC
THE METROPOLITAN WASHINGTON
EMPLOYMENT LAWYERS ASSOCIATION;
PUBLIC JUSTICE CENTER; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Supporting Appellant.

On Petition for Rehearing En Banc
By order filed October 2, 2006, the Court denied appellant’s peti-
tion for rehearing en banc. A poll requested by a member of the Court
failed to produce a majority of judges in active service in favor of
rehearing en banc. Chief Judge Wilkins and Judges Michael, Traxler,
King, and Gregory voted to rehear the case en banc, and Judges Wid-
ener, Wilkinson, Niemeyer, Shedd, and Duncan voted against rehear-
ing en banc.
Judge Niemeyer now files an opinion in support of the order deny-
ing rehearing en banc, and Judge King files an opinion, in which
Chief Judge Wilkins and Judges Michael, Traxler, and Gregory join,
dissenting from the denial of rehearing en banc.
2 JORDAN v. ALTERNATIVE RESOURCES CORP.
Entered at the direction of Judge Niemeyer for the Court.
For the Court,
/s/ Patricia S. Connor
CLERK
NIEMEYER, Circuit Judge, opinion in support of the court’s order
denying appellant’s motion for rehearing en banc:
The differences that Judge King has with the majority’s view of
this case have puffed up the writings of all to such a level that they
are addressing abstract arguments about the policy ramifications of
Title VII’s retaliation provisions. The fact remains that this case pre-
sents a straightforward and unremarkable legal question: Did Robert
Jordan state a Title VII claim against his employer for retaliation
against him for complaining about a coworker’s single isolated racist
remark made not to Jordan himself, but to a television set? While the
single racist remark by the fellow employee was an ugly one, not
even Jordan alleged that it had created a hostile work environment as
defined by Title VII cases. Ruling comfortably within the bounds of
the statutory language and existing precedent, the district court dis-
missed the claim under Federal Rule of Civil Procedure 12(b)(6), and
we affirmed.
The complaint alleges that Jordan, while in the network room of his
employer’s office, heard Jay Farjah, a coworker, who was watching
television, exclaim — not directly to Jordan but in his presence —
"They should put those two black monkeys in a cage with a bunch of
black apes and let the apes f--k them." Farjah was speaking to the
television set in response to a report that John Allen Muhammad and
Lee Boyd Malvo, the Washington-area terrorists, had been captured.
Jordan alleged that he was offended by Farjah’s statement and
reported it to two other coworkers, who told Jordan that they had
heard Farjah make similar offensive remarks many times before. Jor-
dan complained about Farjah’s remark to various supervisors, who
briefly investigated it.
Jordan’s complaint alleges that during the month following his
complaints about Farjah’s remark, one supervisor delayed his work
JORDAN v. ALTERNATIVE RESOURCES CORP. 3
shift by two and a half hours and gave him extra work assignments,
and another made a derogatory remark toward him at an office
Thanksgiving party. He alleged that about a month after he com-
plained, his employer fired him because, as his employer said, he was
"disruptive," his position "had come to an end," and, as he was told,
his fellow employees and supervisors "don’t like you and you don’t
like them." He alleged that this was a "pretext" and that he was fired
"because of his opposition to Farjah’s racially offensive remark." The
district court concluded that Jordan’s allegations did not state a claim
for retaliation upon which relief could be granted, because Jordan was
not opposing "any practice made an unlawful employment practice
by" Title VII. See 42 U.S.C. § 2000e-3(a).
Jordan admitted that the single isolated racist comment that he
heard did not amount to a practice that was made an unlawful
employment practice under Title VII, but he did allege that Title VII
might eventually be violated because "had [a fellow employee] con-
tinued, unabated, his conduct would at some time have ripened into
[a] racially hostile work environment."
In EEOC v. Navy Federal Credit Union, 424 F.3d 397, 406 (4th
Cir. 2005), we held that an employee did have a claim for retaliation
if he "reasonably believes" that he was opposing a practice made an
unlawful employment practice by Title VII, even if the practice had
not yet ripened into a Title VII violation. But the law has never pro-
tected employees in connection with their complaints about potential
or future violations that they feared might occur. To adopt now such
an extension of the statutory language would trample all existing Title
VII jurisprudence that recognizes a difference between an isolated
racial slur, which is always and everywhere inappropriate, and the
sort of severe or pervasive conduct that creates a hostile work envi-
ronment. "Title VII does not prohibit all verbal or physical harass-
ment in the workplace." Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998); see also id. (Title VII will not become "a gen-
eral civility code for the American workplace" so long as courts pay
"careful attention to the requirements of the statute").
Jordan has argued that the reasonableness standard adopted in Navy
Federal stands in tension with the early reporting policy incentives
discussed in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764
4 JORDAN v. ALTERNATIVE RESOURCES CORP.
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 806
(1998), and Judge King adopted this argument as his reason for urg-
ing an extension of Title VII’s retaliation provisions to cover potential
violations. As we demonstrated in some detail in our panel opinion,
however, there is no such tension because Jordan is comparing the
qualitative requirement of being objectively reasonable when oppos-
ing unlawful practices with the laches concept discussed in Faragher.
See Jordan v. Alternative Resources Corp., 458 F.3d 332, 341-43 (4th
Cir. 2006). Complaining employees are protected by Title VII once
they have an objectively reasonable belief that a Title VII violation
has occurred. On the other hand, if they want to protect their right to
sue their employers, they have a reasonable amount of time in which
to bring their concern to their employer’s attention. These principles
are not in tension with each other — they are simply different provi-
sions with different conditions. Congress limited the scope of retalia-
tion claims, and our decision in Navy Federal amply protects
employees who reasonably err in understanding those limits. We have
simply indicated our unwillingness to go beyond Navy Federal and
use Title VII to create a national workplace civility code.
As the law stands, Title VII does not create a claim for every
employee who complains about the potential for Title VII violations
or about other employees’ isolated racial slurs. It protects an
employee who opposes "any practice made an unlawful employment
practice," 42 U.S.C. § 2000e-3(a), or who "reasonably believes" he is
opposing a practice made an unlawful practice by Title VII, Navy
Federal, 424 F.3d at 406.
Of course nothing in our ruling condones the contemptible com-
ment made by the coworker in this case. We have simply held that
complaining about an isolated racial slur is not opposition protected
by Title VII.
On the § 1981 discrimination claim, the issue is not whether Jor-
dan’s complaint is too spare to satisfy notice pleading, as Judge King
frames the issue. Neither we nor the district court held it to be too
spare. The issue is whether Jordan’s pleading states a claim upon
which relief can be granted. Jordan’s detailed complaint for § 1981
discrimination is that his employer fired him because of "his opposi-
tion to [a fellow employee’s] racially offensive statement." The dis-
JORDAN v. ALTERNATIVE RESOURCES CORP. 5
trict court said that this did not state a § 1981 claim for
discrimination, even if Jordan alleged in a conclusory manner that it
amounted to discrimination, because Jordan failed to demonstrate any
basis from which to conclude that his own race "played any role in
his termination." The court observed that the only person alleged to
have engaged in racist conduct was the fellow employee, and the fel-
low employee was "not alleged to have contributed to Jordan’s termi-
nation." We have affirmed the district court on this same reasoning.
For these reasons, this case merits no analysis further than the care-
ful and thorough analysis already applied by both the majority and
dissenting opinions.
KING, Circuit Judge, dissenting from denial of rehearing en banc:
I write to briefly memorialize my profound disappointment with
our Court’s decision to deny Jordan’s petition for rehearing en banc
— by a tie vote of five to five.1 Although Jordan’s petition has been
denied, his contentions in this appeal have substantial merit, and they
warrant serious consideration by the Supreme Court. As explained
herein and in more detail in my earlier dissenting opinion, Jordan v.
Alternative Resources Corp., 458 F.3d 332, 349-59 (4th Cir. 2006)
(King, J., dissenting), I disagree with my friends in the panel majority
on two issues of exceptional importance.
First, the panel majority’s denial of Jordan’s Title VII retaliation
claim is contrary to Supreme Court precedent established by Burling-
ton Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Faragher v. City
of Boca Raton, 524 U.S. 775 (1998), and Burlington Northern &
Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006). The Court,
in Ellerth and Faragher, commanded that an employee who has expe-
1
Pursuant to Rule 35(a) of the Federal Rules of Appellate Procedure,
a majority of the qualified active judges must vote in the affirmative in
order for rehearing en banc to be granted. Our 5-5 vote has failed that
test, and I have no quarrel with the Rule itself. However, I strongly
believe that rehearing en banc should have been granted because (1) it
was "necessary to . . . maintain uniformity of this court’s decisions" and
(2) Jordan’s appeal involved questions "of exceptional importance." Fed.
R. App. P. 35(a).
6 JORDAN v. ALTERNATIVE RESOURCES CORP.
rienced racially charged conduct must report such conduct as soon as
it is practicable to do so under his employer’s complaint procedure.
See Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 266-67,
269 (4th Cir. 2001) (citing Ellerth, 524 U.S. at 765; Faragher, 524
U.S. at 807). By its opinion, the panel majority has concluded that,
when an employee complies with Ellerth and Faragher in promptly
reporting racially charged conduct, he is stripped of his protection
from retaliation under Title VII.2 Such a construction of Title VII,
which penalizes an employee for complying with the controlling man-
date of Ellerth and Faragher, is inconsistent with the Court’s view of
Title VII. In its recent White decision, the Court instructed that we
must construe Title VII’s anti-retaliation provision broadly, so as to
further "the . . . provision’s primary purpose" of "maintaining unfet-
tered access to statutory remedial mechanisms." White, 126 S. Ct. at
2414 (2006). Nevertheless, the panel majority, without addressing
White’s holding, has construed Title VII’s anti-retaliation provision so
narrowly that most employees who seek its protection will have their
access to statutory remedial mechanisms either fettered or barred alto-
gether. Our Court has thereby created an untenable Catch-22 situation
for such employees.
Second, the panel majority’s Rule 12(b)(6) ruling on Jordan’s
§ 1981 claim contravenes controlling Supreme Court precedent in
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002). The Court there
concluded that Swierkiewicz’s bare allegation that an adverse
employment action was taken "on account of" a prohibited ground
was sufficient, under Rule 12(b)(6), to state a claim upon which relief
2
The circumstances of Jordan’s report of racially charged conduct to
his employers bear noting. In October 2002, Jordan and a white co-
worker were watching a televised report on the capture of snipers who
had terrorized the Washington, D.C. area that fall. As they watched, the
co-worker loudly stated his position that "[t]hey should put those two
black monkeys in a cage with a bunch of black apes and let the apes fuck
them." Amend. Compl. ¶ 9. After learning from certain colleagues that
this co-worker had made similar offensive comments many times before,
Jordan advised several of his managers of the "black monkeys" com-
ment, in accordance with his employers’ anti-discrimination policies.
Jordan was terminated shortly thereafter, for having reported the forego-
ing.
JORDAN v. ALTERNATIVE RESOURCES CORP. 7
can be granted. See 534 U.S. at 514. In so ruling, the Court expressly
rejected the contention that Swierkiewicz’s complaint did not state a
valid claim because it was "based on conclusory allegations of dis-
crimination." Id. The panel majority has nevertheless ruled that Jor-
dan’s allegation (that he was fired "because he is African-American"
and that his "race was a motivating factor," Amend. Compl. ¶ 42)
fails to state a claim upon which relief can be granted, even though
Jordan’s allegation is materially indistinguishable from the allegation
at issue in Swierkiewicz. To make matters worse, the majority based
its Rule 12(b)(6) ruling on the very reason rejected by the Court in
Swierkiewicz: that Jordan’s complaint "rested on his illogical conclu-
sory statement that his race was a ‘motivating factor’ for his firing."
Jordan v. Alternative Resources Corp., 458 F.3d 332, 345 (4th Cir.
2006). This result simply cannot be reconciled with the Court’s deci-
sion in Swierkiewicz.
In sum, the decision of the panel majority has disregarded impor-
tant Supreme Court precedent in its disposition of Jordan’s Title VII
retaliation claim and his § 1981 claim.3 These rulings present issues
of exceptional importance to the workers and employers of this Cir-
cuit and this country, not only because of the discord the majority has
sown in our Title VII and § 1981 jurisprudence, but also because of
the judicial overreaching that its decision represents. In forcing
3
In addition to disregarding precedent, the panel majority has ignored
critical allegations in Jordan’s complaint, in contravention of Rule
12(b)(6) principles. This flaw in the majority’s decision is underscored
by the opinion in support of denial of rehearing en banc, which contains
errors on the factual predicate of this appeal, including the following.
• Although the opinion acknowledges that Jordan’s co-worker
made similar offensive remarks before spewing out the
"black monkeys" comment, it refers multiple times to the
"black monkeys" comment as a single, isolated racial slur.
• On his § 1981 claim, Jordan does not simply allege that "his
employer fired him because of ‘his opposition to [a fellow
employee’s] racially offensive statement.’" Ante at 4. Signifi-
cantly, Jordan asserts that he was fired "because he is
African-American," and that his "race was a motivating fac-
tor in the conduct and decisions of" his employers. Amend.
Compl. ¶ 42.
8 JORDAN v. ALTERNATIVE RESOURCES CORP.
employees to choose between hostile work environment claims and
the protection authorized under Title VII’s anti-retaliation provision,
the majority has effectively nullified Congress’s policy judgment that
those safeguards against workplace discrimination should operate
concurrently. And, by requiring employees to plead with particularity
their claims of employment discrimination, the panel majority has
arrogated to our Court the power to overrule, sub silentio, the liberal
pleading standard of Rule 8(a) in favor of our own notions of effec-
tive procedure. Cf. Swierkiewicz, 534 U.S. at 515 ("A requirement of
greater specificity for particular claims is a result that ‘must be
obtained by the process of amending the Federal Rules, and not by
judicial interpretation.’" (quoting Leatherman v. Tarrant County Nar-
cotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993))).
I must therefore, with all respect, dissent from the denial of Jor-
dan’s petition for rehearing en banc, and I urge the Supreme Court to
accord serious consideration to any petition for certiorari that Jordan
may file.
I am authorized and pleased to state that Chief Judge Wilkins,
Judge Michael, Judge Traxler, and Judge Gregory join in this opinion.