                         ON REHEARING EN BANC

                                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.

-------------------------------------

EQUAL   EMPLOYMENT  OPPORTUNITY  COMMISSION;  METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC JUSTICE
CENTER, INC.,

                Amici Supporting Appellant.



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:   September 18, 2014                    Decided:   May 7, 2015


Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.


Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Chief Judge Traxler and Judges Motz,
Gregory, Shedd, Duncan, Keenan, Wynn, Diaz, Floyd, Thacker, and
Harris joined.   Judge Wilkinson wrote an opinion concurring in
part and dissenting in part, in which Judge Agee joined. Judge
Niemeyer wrote a dissenting opinion.


ARGUED:   Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant.    Harriet Ellen Cooperman,
SAUL EWING LLP, Baltimore, Maryland, for Appellees.      Paul D.
Ramshaw,    U.S.   EQUAL   EMPLOYMENT  OPPORTUNITY   COMMISSION,
Washington, D.C., for Amicus U.S. Equal Employment Opportunity
Commission.    ON BRIEF: Brett S. Covington, SAUL EWING LLP,
Baltimore, Maryland, for Appellees.     P. David Lopez, General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Jennifer S. Goldstein, Acting Assistant General Counsel, Office
of   General    Counsel,  U.S.   EQUAL   EMPLOYMENT  OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus U.S. Equal Employment
Opportunity Commission.  Stephen Z. Chertkof, Douglas B. Huron,
HELLER, HURON, CHERTKOF & SALZMAN PLLC, Washington, D.C.; Ilana
Gelfman, Francis D. Murnaghan, Appellate Advocacy Fellow, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici Metropolitan
Washington Employment Lawyers Association and the Public Justice
Center.




                               2
KING, Circuit Judge:

      Reya   C.   Boyer-Liberto,        the    African-American     plaintiff      in

these civil rights proceedings, alleges that within a single

twenty-four-hour period in September 2010, while working as a

cocktail waitress at the Clarion Resort Fontainebleau Hotel in

Ocean City, Maryland (the “Clarion”), she was twice called a

“porch monkey” and threatened with the loss of her job by a

Caucasian restaurant manager.             Soon after reporting to higher-

ups at the hotel that she had been racially harassed, Liberto

was fired by the Clarion’s owner, Dr. Leonard P. Berger.                        This

action against the Fontainebleau Corporation and Berger ensued,

with Liberto asserting claims of hostile work environment and

retaliation, under both Title VII of the Civil Rights Act of

1964 and 42 U.S.C. § 1981.              The district court awarded summary

judgment to the defendants, see Boyer-Liberto v. Fontainebleau

Corp., No. 1:12-cv-00212 (D. Md. Apr. 5, 2013), ECF No. 52, and

a not-fully-unanimous panel of this Court affirmed, see Boyer-

Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).

The   panel’s     decision   was   vacated,       however,     by   our   grant    of

rehearing en banc.

      As   explained    below,     we    now    vacate   the   judgment    of     the

district court and remand for further proceedings on Liberto’s

claims.      In    so   doing,     we    underscore      the    Supreme    Court’s

pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775,

                                          3
788    (1998),       that    an    isolated        incident    of    harassment,       if

extremely serious, can create a hostile work environment.                              We

also recognize that an employee is protected from retaliation

when   she    reports       an   isolated     incident   of    harassment      that    is

physically threatening or humiliating, even if a hostile work

environment is not engendered by that incident alone.                          Finally,

we specify that, to the extent today’s decision is in conflict

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

Cir. 2006), Jordan is hereby overruled.



                                            I.

                                            A.

       The record in this matter reflects that on August 4, 2010,

Liberto      began    working      at   the       Clarion,    an    oceanfront    hotel

containing       guest      rooms,      several      restaurants       and     bars,    a

nightclub,      and    a    conference      center    with    meeting    and     banquet

facilities. 1        During the seven weeks she was employed with the


       1
       For purposes of our de novo assessment of the district
court’s summary judgment award, we view the facts in the light
most favorable to Liberto, as the nonmoving party. See Laber v.
Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Thus, like
the district court, we accept that Liberto was called a “porch
monkey” on two consecutive days, and that the defendants knew of
at least one of those alleged slurs when the decision to
discharge Liberto was made.   See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 3 n.2 (D. Md. Apr. 5,
2013), ECF No. 52. Much of our factual recitation is drawn from
Liberto’s   deposition  testimony;  we  do   not  rely   on  her
(Continued)
                                              4
Clarion’s       Food    and    Beverage        Department,        Liberto     worked    in

assorted       roles,   including       restaurant         hostess,    restaurant      and

banquet server, bartender, and cocktail waitress.                           According to

Liberto, the Clarion assigned her that variety of jobs so that

she    could    learn    all    positions         within    the    Food   and    Beverage

Department as part of her training.

        On the night of September 14, 2010, Liberto was working as

a cocktail waitress in the Clarion’s nightclub.                              One of her

customers ordered a “Hula Hula,” a drink that is time-consuming

to prepare.       The bartender in the adjacent main bar refused to

fill    the    order,    explaining       to      Liberto    that     other     nightclub

patrons would see the Hula Hula and want that drink, too.                          In an

effort to please her customer and after consulting immediate

supervisor Jamie Avery, Liberto went beyond the main bar to the

pub bar, where she found a bartender willing to make a Hula

Hula.     Once the drink was prepared, Liberto wanted to avoid a

confrontation with the bartender in the main bar, so she chose a

new    path    back     to    the    nightclub      that    took    her     through    the

restaurant       kitchen.           Liberto    carried      the   Hula    Hula    briskly

through the kitchen and across the nightclub to her customer’s

table.     She then went to a server station, which was located in



interrogatory   answers,  which  the                   district       court      properly
excluded from consideration. See id.



                                              5
the nightclub several feet from the kitchen doors, to print a

guest check.

     At that point, Liberto was confronted by Trudi Clubb, a

white Food and Beverage Manager at the Clarion.                      Unbeknownst to

Liberto, Clubb had been yelling at Liberto as she passed through

the kitchen carrying the Hula Hula.                  Liberto soon learned that

Clubb was livid because she believed that Liberto had heard but

ignored her.         As Liberto worked at the server station, Clubb

came through the kitchen doors, loudly screaming, “Hey, girl

that can’t hear.”         J.A. 237. 2          Clubb, still shouting, quickly

approached Liberto, who turned her face away from Clubb in an

effort    to    remain   calm    —   a     move    that    made   Clubb    even   more

furious.       Clubb then came so close to Liberto that Liberto could

feel Clubb’s breath on her face as Clubb stood at Liberto’s

side.      Indeed,    continuing      to    yell    at    Liberto,    Clubb    sprayed

Liberto’s face with saliva.                Clubb’s message was that Liberto

should    have    neither    walked      through     the    kitchen      nor   ignored

Clubb, and Liberto repeatedly indicated that she understood and

agreed.

     Clubb’s      shouting      nonetheless        persisted,     even    as   Liberto

left the server station to tend to nightclub customers.                           Clubb


     2
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                           6
was now loudly berating Liberto for walking away from her, at

first following Liberto into the nightclub and then moving back

to the server station.             Upon Liberto’s subsequent return to that

area, Clubb finally proceeded to exit the nightclub into the

kitchen.      As she did so, Clubb threatened Liberto in words that

included, “[I’m] going to get [you]” and “[I’m] going to make

[you] sorry.”        J.A. 252-53.       Clubb then concluded her threat by

turning to look at Liberto and calling her either a “damn porch

monkey” or a “dang porch monkey.”             See id. at 258.

      Upon    arriving       for    a   dinner    shift     the   following     day,

September 15, 2010, Liberto went to the Clarion’s management

office to report Clubb’s conduct to Food and Beverage Director

Richard Heubeck.        Liberto had just begun talking to Heubeck when

she was interrupted by Clubb, who came into the office and said

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

Liberto responded that she was meeting with Heubeck, but Clubb

retorted,     “I’m    more     important,”    prompting      Liberto   to     follow

Clubb out of the office.             Id. at 263-64.       Clubb and Liberto sat

at a nearby table, and Clubb reprimanded Liberto, in a raised

and   angry    voice,    for    passing    through    the    kitchen   the    prior

night.     As the two women then rose from the table and pushed in

their chairs, Clubb threatened, “I’m gonna get you.                    I’m gonna

go to [hotel owner] Dr. Berger.”                 Id. at 266.      Her voice still

loud and angry though somewhat lower than before, Clubb capped

                                          7
the threat by looking directly at Liberto and again calling her

a “porch monkey.”               Id. at 266-68.

        On September 16, 2010, Liberto arranged to speak with Human

Resources Director Nancy Berghauer by telephone the following

day.      During the September 17 phone call, Liberto complained

that she had been racially harassed by Clubb.                                      From handwritten

notes,     Berghauer               prepared       a       typewritten          summary          of     her

discussion       with         Liberto,         which      included          Liberto’s       allegation

that     Clubb      called          her    a     “porch         monkey”       on     September         15.

Berghauer provided the summary on September 17 to Dr. Berger and

General       Manager         Mark     Elman,      and      Elman       met     with      Liberto      on

September      18        to    further         discuss      her       complaint.          Meanwhile,

although       Clubb          denied      ever    using         the    term        “porch      monkey,”

Heubeck issued her a written notice on September 18 advising

that,    as    “a     member         of   our     Food      &     Beverage         Management         team

. . . , [Clubb]               is    expected      to      conduct      herself       as       such”    and

“needs to be cautious the language or phrases she uses can not

be perceived as racist or derogatory.”                            J.A. 311.

       According          to        Dr.    Berger,         Liberto’s          racial        harassment

complaint of September 17, 2010, prompted him to go to Heubeck

that day and ask — for the first time ever — about Liberto’s

performance.             In        Berger’s      account,         Heubeck       gave      a    negative

evaluation       of       Liberto         and     attributed            her     variety         of    job

assignments         to    failure         in    every      role       she    tried;     thus,        after

                                                      8
further consulting Elman and Berghauer between September 18 and

20, Berger made the decision to fire Liberto immediately.                                   At

the beginning of her scheduled shift on September 21, Liberto

was notified that she was being discharged.

       Whether Clubb had been empowered by the Clarion to fire

Liberto or take other tangible employment actions against her is

unclear on this record.               From Liberto’s perspective during her

short time as a Clarion employee, Clubb “was just Dr. Berger’s

friend and she was just there to say hello and greet people as a

glorified hostess.”          J.A. 213.            Liberto did not know that Clubb

held   a   manager       title   and    did       not    consider   Clubb         to   be   her

manager.         See id. at 214 (Liberto’s deposition testimony that

she reported to Avery and Heubeck, and that Avery told Liberto

“not to go to [Clubb] because [Clubb] did not have the power to

do voids or make decisions”).                 Nevertheless, Clubb conveyed to

Liberto — and Liberto got the message — that Clubb was in a

position to have Liberto terminated.                          Before she had finished

just   her   second      week    of    work       at    the   Clarion,    Liberto       “felt

extremely singled out” by Clubb and perceived that “my position

was being threatened” by her.                 See id. at 277-79 (discussing an

August     16,    2010   Twitter      message          from   Liberto    to   a    co-worker

saying that Clubb is “after me like [a] starving wol[f] on a

bone”).      Clubb repeatedly told Liberto “what my place was” and

“always made it clear that Dr. Berger would listen to anything

                                              9
she said and wouldn’t believe me.”                 Id. at 279.            Clubb’s conduct

led Liberto to understand that Clubb “did have power that I did

not have.”      Id. at 274.        Consistent with that perception, Elman

informed Liberto during their September 18, 2010 meeting that

Clubb was Liberto’s “boss.”             See id. at 324 (September 18 email

to   Heubeck    and    Berghauer      from   Elman       recounting        what    he   told

Liberto).

                                            B.

      On January 23, 2012, after exhausting her administrative

remedies       with     the    federal       government’s            Equal      Employment

Opportunity Commission (the “EEOC”), Liberto filed her complaint

in   the   District      of    Maryland.          The    complaint         asserted     four

claims:        one     claim   each    of        hostile      work    environment        and

retaliation       pursuant       to    Title        VII       against          solely    the

Fontainebleau         Corporation,      trading          as    the     Clarion       Resort

Fontainebleau         Hotel;   and     one       claim     each      of    hostile      work

environment and retaliation under 42 U.S.C. § 1981 against both

the Fontainebleau Corporation and Dr. Berger.

                                            1.

      Following       discovery,      the    defendants        filed       a   motion   for

summary judgment.         Contesting the validity of the hostile work

environment claims, the defendants focused on just one of the

four elements of such a claim, contending that there had been no

showing that Clubb’s conduct was severe or pervasive enough to

                                            10
alter Liberto’s conditions of employment and produce an abusive

work environment.         See Okoli v. City of Balt., 648 F.3d 216, 220

(4th Cir. 2011) (“To demonstrate . . . a racially hostile work

environment, a plaintiff must show that there is (1) unwelcome

conduct;      (2) that     is   based       on     the    plaintiff’s      . . .     race;

(3) which      is    sufficiently         severe    or    pervasive     to    alter   the

plaintiff’s conditions of employment and to create an abusive

work environment; and (4) which is imputable to the employer.”

(alteration      and    internal      quotation         marks   omitted));     see    also

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001)

(explaining      that     the   elements      of    a    hostile    work     environment

claim “are the same under either § 1981 or Title VII”).

       With    respect     to   the    retaliation         claims,    the     defendants

argued that Liberto could not establish that she undertook a

protected activity by making her racial harassment complaint to

the Clarion.         See EEOC v. Navy Fed. Credit Union, 424 F.3d 397,

405-06 (4th Cir. 2005) (“In order to establish a prima facie

case   of     retaliation,      a    plaintiff      must    prove    three    elements:

(1) that      she    engaged    in    a    protected       activity;    (2) that       her

employer      took   an   adverse      employment        action     against    her;    and

(3) that there was a causal link between the two events.”); see

also Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188

(4th Cir. 2004) (recognizing that elements of prima facie § 1981

and Title VII retaliation claims are identical).                       The defendants

                                            11
elaborated       that     Liberto’s          complaint         was     not     a    protected

opposition       activity      because        she    could       not    reasonably          have

believed       that     Clubb’s       conduct       was    sufficiently            severe    or

pervasive      to     engender    a     prohibited        hostile      work    environment.

See Navy Fed., 424 F.3d at 406 (explaining that an opposition

activity, such as making an internal complaint, is protected

where an employee opposes either “employment actions actually

unlawful       under     Title        VII”    or      “employment            actions    [she]

reasonably believes to be unlawful”).

                                              2.

      In seeking summary judgment, the defendants substantially

relied    on    our     precedent       in    Jordan      v.    Alternative         Resources

Corp.,    458    F.3d    332     (4th     Cir.      2006).        There,      the    African-

American plaintiff alleged that, while watching a news report on

a workplace television about the capture of the infamous D.C.

snipers in 2002, a co-worker exclaimed in his presence, “They

should put those two black monkeys in a cage with a bunch of

black apes and let the apes f[uc]k them.”                         See Jordan, 458 F.3d

at 336.         The plaintiff, Jordan, reported the comment to his

supervisors and was fired within a month of his complaint.                                  Id.

at 337.     Jordan then filed suit against his employers, alleging,

inter alia, retaliatory discharge in contravention of Title VII

and   § 1981.          Id.        The    district         court      dismissed       Jordan’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for

                                              12
failure to state a claim upon which relief can be granted, and

Jordan appealed to our Court, which affirmed by a split panel

decision.

       Addressing the Title VII retaliation claim, the opinion of

the panel majority related that, under Title VII, “‘[i]t 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 subchapter.’”           Jordan, 458 F.3d at 338 (quoting 42 U.S.C.

§ 2000e-3(a)).         The    majority   continued   that,      “[r]eading    the

language generously to give effect to its purpose, however, we

have also held that opposition activity is protected when it

responds to an employment practice that the employee reasonably

believes is unlawful.”          Id. (citing Navy Fed., 424 F.3d at 406-

07).

       The Jordan majority observed that the employment practices

that may be the subject of protected opposition activity include

discrimination under 42 U.S.C. § 2000e-2(a)(1) in the form of

“maintaining     a     racially    hostile    work   environment,     i.e.,    a

‘workplace     . . .    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 working environment.’”           Jordan, 458 F.3d at 339 (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).                       The

                                         13
majority further recognized that “[c]ourts determine ‘whether an

environment is sufficiently hostile or abusive by looking at 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. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-

88   (1998)).           As    the     majority          explained,       “‘simple      teasing,

offhand     comments,          and     isolated          incidents       (unless      extremely

serious) will not amount to discriminatory changes in the terms

and conditions of employment.’”                        Id. (quoting Faragher, 524 U.S.

at     788).       The        majority        also        noted       that       “hostile   work

environments       generally          result       only    after       an    accumulation     of

discrete       instances       of     harassment.”              Id.    (citing      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.                             . . .      Such claims

are based on the cumulative effect of individual acts.”)).

       To   assess      the     merits       of    Jordan’s       Title      VII    retaliation

claim, the panel majority clarified, “the question reduces to

whether        Jordan        complained       about        an      actual        hostile    work

environment       or,    if     there     was      not     one,       whether     Jordan    could

reasonably have believed there was one.”                               Jordan, 458 F.3d at

339.        The   majority           first    concluded           that      no    hostile   work

                                                  14
environment       actually      existed,        in       that    the    “black    monkeys”

comment — though “unacceptably crude and racist” — “was an

isolated    response      directed        at    the      snipers”      rather    than   “any

fellow employee.”         Id. at 339-40.             The majority underscored that

the comment “was a singular and isolated exclamation” that did

not and could not have “altered the terms and conditions of

[Jordan’s]      employment,”        and    that      Jordan      did    “not    describe    a

workplace       permeated      by    racism,        by    threats      of   violence,      by

improper    interference        with      work,      or    by    conduct     resulting     in

psychological harm.”           Id. at 340.

     Turning to the issue of Jordan’s reasonable belief, the

panel majority concluded that “no objectively reasonable person

could have believed that [Jordan’s workplace] was in the grips

of a hostile work environment.”                     Jordan, 458 F.3d at 341.             But

the majority also acknowledged that, pursuant to Navy Federal,

Jordan could rely on a reasonable belief that a hostile work

environment      “was    taking      shape.”             See    id.    at   340-41   (“Navy

Federal     holds       that    an     employee           seeking       protection      from

retaliation must have an objectively reasonable belief in light

of all the circumstances that a Title VII violation has happened

or is in progress.”); see also Navy Fed., 424 F.3d at 406-07

(concluding that plaintiff reasonably believed she was opposing

unlawful retaliation by disrupting plan that had been set in

motion     by    employer      to    terminate           another      employee    for    her

                                               15
discrimination      complaints).               The    majority     elaborated      that,

“[u]nder § 2000e-3(a) as construed by Navy Federal, we cannot

simply   assume,     without     more,         that   the   opposed      conduct      will

continue or will be repeated unabated; rather, the employee must

have   an     objectively     reasonable         belief     that    a    violation      is

actually      occurring   based      on    circumstances         that    the    employee

observes    and   reasonably      believes.”           Jordan,     458   F.3d    at    341

(emphasis omitted).           From there, the majority determined that

Jordan could not establish a reasonable belief that a hostile

work environment was in progress, in that “no allegation in the

complaint suggests that a plan was in motion to create such an

environment, let alone that such an environment was even likely

to   occur.”      Id.    at   340.        Accordingly,      the    majority      opinion

affirmed the dismissal of Jordan’s Title VII retaliation claim,

as well as his § 1981 retaliation claim.

       The Jordan dissent agreed with the panel majority that, to

gain protection for his opposition activity, an employee may

rely on a reasonable belief that Title VII is in the process of

being violated by the conduct being opposed.                        See Jordan, 458

F.3d at 352 (King, J., dissenting) (citing Navy Fed., 424 F.3d

at 406-07).       The dissent disputed the majority’s view, however,

that   Navy    Federal    requires        an    employee    opposing      a    potential

hostile work environment to prove “that a plan was in motion to

create such an environment.”              That is, the dissent distinguished

                                           16
the discrete action opposed by the Navy Federal plaintiff (the

imminent    retaliatory        discharge      of   another       employee)       from   the

conduct     opposed    in    Jordan    (conduct      that,       if    repeated,    could

amount to a hostile work environment).

       The Jordan dissent concluded that, “[b]y opposing racially

charged conduct that he reasonably believes could be part and

parcel of a hostile work environment, a reporting employee has

opposed     the    impermissible       whole,      even    absent      an   independent

basis for believing the conduct might be repeated.”                         Jordan, 458

F.3d   at   354.      “Indeed,”       the    dissent      emphasized,       “we   require

employees to report such incidents in order to prevent hostile

work environments from coming into being.”                           Id. (referring to

employer’s affirmative Ellerth/Faragher defense, see Faragher,

524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 764-65 (1998), imposing duty on employee to avoid harm by

reporting     harassment        to    employer).               The    dissent     further

highlighted precedent observing “that an employee’s ‘generalized

fear   of    retaliation       does    not       excuse    a    failure     to    report’

harassing conduct, because ‘Title VII expressly prohibits any

retaliation         against         [employees]           for        reporting      . . .

harassment.’”         Id. at 355 (alterations in original) (quoting

Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th

Cir.   2001)).        And,    the    dissent      stressed      the    Supreme    Court’s

then-recent       edict      that    “‘[i]nterpreting           the    antiretaliation

                                            17
provision       to    provide     broad   protection         from   retaliation      helps

assure    the        cooperation      upon    which    accomplishment        of   [Title

VII’s] primary objective’ — preventing harm — ‘depends.’”                               Id.

at 352 (alteration in original) (quoting Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)).

      At bottom, the Jordan dissent recognized that the “black

monkeys” comment made by Jordan’s co-worker “is the stuff of

which a racially hostile work environment is made,” and thus

that “it was entirely reasonable for Jordan to believe that, in

reporting the . . . comment to his employers, he was opposing a

racially hostile work environment.”                     Jordan, 458 F.3d at 355.

The   dissent        lamented     that,      because    of    the    panel   majority’s

opinion     to       the   contrary,      “employees         in     this   Circuit      who

experience racially harassing conduct are faced with a ‘Catch-

22.’”     Id.        As the dissent explained those employees’ quandary,

“[t]hey may report such conduct to their employer at their peril

(as Jordan did), or they may remain quiet and work in a racially

hostile and degrading work environment, with no legal recourse

beyond resignation.”            Id.    But see Jordan, 458 F.3d at 342 (the

majority’s       retort     that      “Jordan’s       dilemma,      that   the    law    is

inconsistent          by   both    encouraging         and     discouraging       ‘early’

reporting, is presented too abstractly.                        The strong policy of

removing and preventing workplace discrimination can and does

coexist with Navy Federal’s objective reasonableness standard”).

                                              18
The   opinion   of    the   Jordan    majority    thereafter     withstood    a

petition for rehearing en banc, which was denied on a 5-5 vote

of the judges then in active service.            See Jordan v. Alternative

Res. Corp., 467 F.3d 378 (4th Cir. 2006).

                                      3.

      Here, by its decision of April 5, 2013, the district court

relied on Jordan and awarded summary judgment to the defendants,

adopting   their     contentions     that    Clubb’s   conduct   was   not   so

severe or pervasive as to create a hostile work environment or

to instill a reasonable belief in Liberto, such as would protect

her from retaliation, that she had been unlawfully harassed.

See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212 (D.

Md. Apr. 5, 2013), ECF No. 52. 3            In rejecting Liberto’s hostile


      3
       The district court’s grounds for awarding summary judgment
— the lack of severe or pervasive conduct (element three of the
hostile work environment claims) and a protected activity
(element one of the retaliation claims) — were the sole grounds
that had been propounded by the defendants.       See supra Part
I.B.1.   Regardless, the court acknowledged the balance of the
elements of Liberto’s claims and accepted that they had been
satisfied. With respect to the hostile work environment claims,
that meant Liberto had shown unwelcome conduct (element one),
based on her race (element two), which, “[g]iven Clubb’s
position in Clarion’s management structure,” was imputable to
the employer (element four). See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 5 (D. Md. Apr. 5, 2013),
ECF No. 52. As for the retaliation claims, the court deemed it
“indisputable” that the defendants took an adverse employment
action against Liberto (element two) and that there was a causal
link between her racial harassment complaint and the adverse
employment action (element three). Id. at 7.



                                      19
work   environment         claims,       the    district         court    determined     that

“[t]he two incidents of use of a racial epithet, assuming they

occurred as Liberto testified, simply do not comprise either

pervasive       or    severe     conduct,      however       unacceptable      they      are.”

Id. at 6.             The court explained that it had “compare[d] the

evidence        in     this     case     to     that       in    [three      others]”     and

“conclude[d] the conduct at issue here does not rise to the

level of conduct found to be severe or pervasive in those Fourth

Circuit cases.”           Id. (citing Anderson v. G.D.C., Inc., 281 F.3d

452, 459 (4th Cir. 2002) (“Anderson 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,   199      (4th     Cir.    2000)    (“Ms.        Conner     experienced      regular,

profound     humiliation         because       of    her    gender,       unlike   the   male

machine operators.”); Amirmokri v. Balt. Gas & Elec. Co., 60

F.3d 1126, 1131 (4th Cir. 1995) (“[Amirmokri] testified that for

six months . . . co-workers abused him almost daily, calling him

names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir

of Waldorf.’”)).          The district court then invoked Jordan for the

proposition that an “isolated racist comment” is “‘a far cry

from   . . .     an     environment       of    crude      and    racist    conditions     so

severe     or        pervasive    that        they     alter[]      the     conditions     of

[plaintiff’s] employment.’”                   Id. (third alteration in original)

(quoting Jordan, 458 F.3d at 340).                         In concomitantly rejecting

                                               20
Liberto’s retaliation claims, the court again looked to Jordan

and ruled that “‘no objectively reasonable person could have

believed that the [plaintiff’s work environment] was, or was

soon   going     to     be,   infected   by    severe       or    pervasive      racist,

threatening, or humiliating harassment.’”                    Id. at 8 (alteration

in original) (quoting Jordan, 458 F.3d at 341).

       Liberto     timely     noted    her     appeal,      and    the    matter     was

reviewed   by     a    three-judge     panel   of    this    Court.        See    Boyer-

Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).

The    panel     decision     was   unanimous       that    the    defendants      were

properly   awarded        summary     judgment   on    Liberto’s         hostile   work

environment claims, in that Clubb’s “use of [the term ‘porch

monkey’] 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.”          Id. at 356.      The panel observed that Liberto had

“not pointed to any Fourth Circuit case, nor could she, finding

the presence of a hostile work environment based on a single

incident.”       Id. at 358 (comparing Jordan with Anderson, Conner,

and Amirmokri).

       The panel was split, however, with respect to Liberto’s

retaliation claims.           The opinion of the panel majority validated

the district court’s summary judgment award on those claims,

explaining that, “if no objectively reasonable juror could have

                                         21
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.”     Boyer-Liberto, 752 F.3d at 360 (emphasis omitted).

Although    the   panel   majority        allowed   that    an     “employee’s

opposition may be protected before the hostile environment has

fully taken form,” the majority faulted Liberto for failing to

“present any indicators that the situation at the Clarion would

have ripened into a hostile work environment.”                   Id.     In that

regard, the majority equated Liberto’s case with Jordan.                      See

id. (“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.’” (alterations in original) (quoting

Jordan, 458 F.3d at 340)); see also id. at 361 (Shedd, J.,

concurring) (“Based on this Court’s decision in Jordan . . . , I

agree with Judge Niemeyer that summary judgment should . . . be

affirmed on the retaliation claim.”).

     The dissent distinguished the facts in this case from those

in Jordan and concluded that, “[p]articularly in light of these

significant   differences,   . . .    Liberto       could   have       reasonably

believed that Clubb’s conduct was actionable.”               Boyer-Liberto,

                                     22
752    F.3d    at     363    (Traxler,           C.J.,      concurring     in     part      and

dissenting in part) (pointing out that Jordan’s co-worker made a

single comment not directed at Jordan or another employee, while

Clubb called Liberto herself “the very same name in the very

same   threatening      context”         on    two       consecutive     days).        In    any

event, the dissent also questioned whether Jordan was correctly

decided.        See    id.    (“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     placed        employees             who      experience         racially

discriminatory        conduct       in     a     classic         ‘Catch-22’      situation.”

(alteration and internal quotation marks omitted)).

       Following issuance of the panel’s decision, Liberto sought

rehearing     en     banc,   and     a    majority         of    our   judges    in    regular

active service voted to grant Liberto’s petition.                               Accordingly,

the panel’s decision was vacated, and today our en banc Court

assesses      anew    the    propriety         of    the    district     court’s      summary

judgment award to the defendants.                    See 4th Cir. R. 35(c).



                                               II.

       We   review     de    novo    a    district         court’s     award     of   summary

judgment, viewing the facts in the light most favorable to the

nonmoving party.            See Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006) (en banc).               Summary judgment is appropriate “if the

                                               23
movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).



                                          III.

                                           A.

                                           1.

      We begin by addressing Liberto’s hostile work environment

claims — an endeavor that leads us to outline pertinent legal

principles, including some of those already identified above.

Title VII renders it “an unlawful employment practice for an

employer     . . .    to    discriminate         against   any   individual   with

respect to [her] compensation, terms, conditions, or privileges

of    employment,      because      of     such     individual’s   race,    color,

religion, sex, or national origin.”                  42 U.S.C. § 2000e-2(a)(1).

An    employer       contravenes         § 2000e-2(a)(1)     by,    inter     alia,

requiring an African-American employee to work in a racially

hostile environment.          See Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 65-67 (1986).         A hostile environment exists “[w]hen 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 working environment.”               Harris v. Forklift Sys., Inc.,

510   U.S.   17,     21    (1993)   (internal        quotation   marks   omitted).

                                           24
Thus,    to    prevail       on    a   Title    VII       claim    that    a     workplace    is

racially       hostile,       “a       plaintiff        must      show     that     there    is

(1) unwelcome         conduct;         (2) that      is    based    on     the     plaintiff’s

. . . race; (3) which is sufficiently severe or pervasive to

alter the plaintiff’s conditions of employment and to create an

abusive       work    environment;        and     (4) which        is    imputable      to   the

employer.”       Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir.

2011) (alteration and internal quotation marks omitted).                                     The

same test applies to a hostile work environment claim asserted

under 42 U.S.C. § 1981.                 See Spriggs v. Diamond Auto Glass, 242

F.3d 179, 184 (4th Cir. 2001); see also 42 U.S.C. § 1981(a)

(providing that “[a]ll persons within the jurisdiction of the

United       States   shall       have    the   same       right    in    every     State    and

Territory to make and enforce contracts . . . as is enjoyed by

white citizens”); Jones v. R. R. Donnelley & Sons Co., 541 U.S.

369,    373     (2004)       (recognizing         that     hostile        work    environment

claims may be brought under § 1981).

       Element three of a hostile work environment claim requires

a showing that “the environment would reasonably be perceived,

and is perceived, as hostile or abusive”; the plaintiff may, but

is     not     required       to,       establish         that     the     environment        is

“psychologically            injurious.”           See     Harris,        510     U.S.   at   22.

Whether the environment is objectively hostile or abusive is

“judged       from    the    perspective        of    a    reasonable          person   in   the

                                                25
plaintiff’s        position.”           Oncale       v.   Sundowner       Offshore      Servs.,

Inc., 523 U.S. 75, 81 (1998).                        That determination is made “by

looking      at    all        the    circumstances,”            which    “may    include      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.”                    Harris, 510 U.S. at 23.                It “is

not,   and    by        its    nature    cannot       be,   a     mathematically        precise

test.”    Id. at 22.

       To be sure, viable hostile work environment claims often

involve repeated conduct.                     See Nat’l R.R. Passenger Corp. v.

Morgan,    536      U.S.       101,    115-17    (2002).          That     is    because,     “in

direct contrast to discrete acts, a single act of harassment may

not be actionable on its own.”                   Id. at 115.            For example, “‘mere

utterance of an . . . epithet which engenders offensive feelings

in an employee’ does not sufficiently affect the conditions of

employment to implicate Title VII.”                             Harris, 510 U.S. at 21

(alteration in original) (quoting Meritor, 477 U.S. at 67).                                   The

same   goes       for    “simple       teasing    [and]         offhand    comments.”         See

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

Importantly, however, an “isolated incident[]” of harassment can

“amount to discriminatory changes in the terms and conditions of

employment,”        if        that    incident    is      “extremely       serious.”          Id.

(internal quotation marks omitted).

                                                26
         In measuring the severity of harassing conduct, the status

of   the     harasser    may    be   a     significant       factor       —    e.g.,     “a

supervisor’s       use   of    [a    racial          epithet]     impacts      the     work

environment far more severely than use by co-equals.”                             Rodgers

v.   W.-S.    Life    Ins.    Co.,   12    F.3d      668,   675    (7th    Cir.      1993).

Simply put, “a supervisor’s power and authority invests his or

her harassing conduct with a particular threatening character.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).

         The status of the harasser also is relevant to element four

of a hostile work environment claim, which necessitates proof

that the harassment is imputable to the employer.                             On the one

hand, “[i]f the harassing employee is the victim’s co-worker,

the employer is liable only if it was negligent in controlling

working conditions.”           Vance v. Ball State Univ., 133 S. Ct.

2434, 2439 (2013); see also Ocheltree v. Scollon Prods., Inc.,

335 F.3d 325, 333-34 (4th Cir. 2003) (en banc) (“[T]he employer

may be liable in negligence if it knew or should have known

about the harassment and failed to take effective action to stop

it.”).      On the other hand, where the harasser is the victim’s

supervisor, “different rules apply”:                    The employer is strictly

liable for the supervisor’s harassing behavior if it “culminates

in   a    tangible    employment     action,”         but   otherwise      “may      escape

liability     by     establishing,        as    an    affirmative        defense,      that

(1) the      employer    exercised        reasonable        care    to    prevent       and

                                           27
correct      any     harassing            behavior          and    (2) that       the     plaintiff

unreasonably        failed          to    take       advantage      of     the     preventive          or

corrective opportunities that the employer provided.”                                              Vance,

133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,

524 U.S. at 765).                   The Ellerth/Faragher defense, in essence,

imposes      a     duty       on    the        victim       to    report     her       supervisor’s

harassing        behavior      to        the    employer.          See     Barrett      v.     Applied

Radiant      Energy       Corp.,          240       F.3d    262,     268     (4th       Cir.        2001)

(discussing        “employee’s            reporting         requirement”         under        Faragher

and    Ellerth).              Relatedly,            a     plaintiff        seeking       to        impute

liability to her employer for harassment by a co-worker may not

be able to establish the employer’s negligence if she did not

report      the     harassment.                 See       Vance,    133     S.     Ct.        at     2453

(recognizing that evidence relevant to negligence inquiry would

include      evidence              that        employer          “failed     to        respond        to

complaints”);           id.    at        2464       (Ginsburg,       J.,     dissenting)             (“An

employee may have a reputation as a harasser among those in his

vicinity, but if no complaint makes its way up to management,

the    employer           will       escape           liability       under        a      negligence

standard.”).

      For    purposes          of    the       employer’s         vicarious       liability,          the

harasser qualifies as a supervisor, rather than a co-worker, “if

he    or    she    is     empowered            by     the    employer       to     take       tangible

employment actions against the victim.”                               Vance, 133 S. Ct. at

                                                     28
2439 (majority opinion).                 An employee so empowered is able to

“effect     a    ‘significant          change      in     employment       status,      such    as

hiring,         firing,      failing          to        promote,       reassignment           with

significantly different responsibilities, or a decision causing

a   significant      change        in    benefits.’”             Id.      at   2443     (quoting

Ellerth,     524    U.S.     at       761).        As    such,   a     supervisor       has    the

“authority to inflict direct economic injury.”                            Id. at 2448.

       To be considered a supervisor, the employee need not have

the final say as to the tangible employment action; instead, the

employee’s        decision      may      be    “subject       to     approval      by       higher

management.”        Vance, 133 S. Ct. at 2446 n.8 (citing Ellerth, 524

U.S.   at    762).        The     Vance       Court      determined       that    one    of    the

harassers in Faragher “possessed the power to make employment

decisions having direct economic consequences for his victims”

based on the following:                 “No one [had been] hired without his

recommendation”; he “initiated firing and suspending personnel”;

his performance evaluations “translated into salary increases”;

and    he    “made    recommendations                regarding         promotions.”            Id.

(internal       quotation       marks     omitted).           Additionally,           the    Court

observed that, “even if an employer concentrates all decision-

making      authority      in     a    few     individuals,          it   likely      will     not

isolate     itself    from        heightened            liability    under       Faragher      and

Ellerth,” in that those individuals likely will have to rely on

the recommendations of others, and “the employer may be held to

                                                29
have effectively delegated the power to take tangible employment

actions to the employees on whose recommendations it relies.”

Id. at 2452 (citing Ellerth, 524 U.S. at 762).

                                                2.

     In    seeking       summary          judgment         on    Liberto’s       hostile      work

environment      claims,       the       defendants’        sole      contention       was    that

there had been no showing that Clubb’s conduct was severe or

pervasive enough to alter Liberto’s conditions of employment and

produce     an       abusive       work       environment.             Liberto’s        counter-

arguments    included          that      there       was    a    genuine     dispute       as    to

whether the          harassment         she   suffered          on   September    14    and     15,

2010, was sufficiently severe.                     To resolve that issue today, we

need not — and, in any event, on this record cannot — determine

whether Clubb was actually Liberto’s supervisor or simply her

co-worker,       a    fact   relevant         to     the    separate       question      of     the

Clarion’s vicarious liability.                     Nevertheless, we are obliged to

consider how Clubb portrayed her authority and what Liberto thus

reasonably believed Clubb’s power to be.                              See Oncale, 523 U.S.

at 81 (“[T]he objective severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s

position . . . .”).

     The     defendants            have       suggested          that,     because       Liberto

understood       Clubb       to     be    a     “glorified           hostess”     and    not     a

restaurant       manager,         see    J.A.    213-14,         Liberto    could      not    have

                                                30
reasonably perceived that Clubb’s conduct was severe enough to

create       a    hostile    work     environment.      That   premise      ignores

evidence,         however,     that     Clubb   repeatedly     and    effectively

communicated to Liberto prior to September 14, 2010, that Clubb

had Dr. Berger’s ear and could have Liberto fired.                     See, e.g.,

id. at 274 (Liberto’s deposition testimony that Clubb “did have

power that I did not have”); id. at 279 (“I felt extremely

singled out and that my position was being threatened and it was

very clear.”); id. (“I was told what my place was.                     . . .    And

[Clubb] always made it clear that Dr. Berger would listen to

anything she said and wouldn’t believe me.”).

       The       defendants’   theory    also   fails   to   take    into   account

Clubb’s assertion of power in the course of her harassment of

Liberto.          On September 14, 2010, Clubb berated Liberto’s job

performance before threatening “to get [her]” and “make [her]

sorry,” and then calling her a “damn porch monkey” or a “dang

porch monkey.”         See J.A. 252-53, 258.         The following day, Clubb

obstructed Liberto’s attempted report of racial harassment to

Food and Beverage Director Heubeck by telling Liberto, “I need

to speak to you, little girl,” and “I’m more important [than

Heubeck].”         Id. at 263-64.       Immediately thereafter, Clubb again

reprimanded Liberto, again threatened to “get [her]” and to “go

to Dr. Berger,” and again called her a “porch monkey.”                      Id. at

266.     Finally, while speaking with Liberto on September 18 about

                                           31
her racial harassment complaint, General Manager Elman validated

Clubb’s      assertion       of    authority       by       declaring      Clubb    to    be

Liberto’s “boss.”          Id. at 324.

      Properly        considering    that    evidence,         we    must    accept      that

Liberto believed — and reasonably so — that Clubb could make a

discharge       decision     or    recommendation           that    would    be     rubber-

stamped by Dr. Berger.             Thus, in gauging the severity of Clubb’s

conduct, we deem Clubb to have been Liberto’s supervisor.                                Cf.

Vance,    133    S.    Ct.   at    2446   n.8,     2452      (recognizing      that,     for

purposes of employer’s vicarious liability, employee may qualify

as supervisor if she can initiate tangible employment actions

“subject        to     approval      by      higher          management”       or        make

recommendations on which employer relies).                         And we view Clubb’s

conduct    as    having      the   “particular          threatening        character”     of

harassment perpetrated by a supervisor against her subordinate.

See Ellerth, 524 U.S. at 763.                    That perspective is especially

appropriate here, where Clubb employed racial epithets to cap

explicit, angry threats that she was on the verge of utilizing

her supervisory powers to terminate Liberto’s employment.

      We also grasp that the use of Clubb’s chosen slur — “porch

monkey” — is about as odious as the use of the word “nigger.”

See Spriggs, 242 F.3d at 185.                    The latter epithet, of course,

“is   pure      anathema     to    African-Americans.”               Id.      Similarly,

describing       an    African-American          as     a    “monkey,”      and     thereby

                                            32
“suggest[ing]    that    a    human       being’s     physical      appearance     is

essentially a caricature of a jungle beast[,] goes far beyond

the merely unflattering; it is degrading and humiliating in the

extreme.”    Id.; see also, e.g., Green v. Franklin Nat’l Bank of

Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (recognizing that

“[p]rimate    rhetoric       has   been     used      to   intimidate       African-

Americans” and that “[t]he use of the term ‘monkey’ and other

similar    words,”    including     the    variation       “porch    monkey,”     has

“been part of actionable racial harassment claims across the

country”    (citing   cases)).        As   we   and    several      of   our   sister

courts of appeals have recognized, “‘[p]erhaps no single act can

more quickly alter the conditions of employment and create an

abusive working environment than the use of an unambiguously

racial epithet such as “nigger” by a supervisor in the presence

of   his   subordinates.’”         Spriggs,     242    F.3d   at     185    (quoting

Rodgers, 12 F.3d at 675); accord Ellis v. Houston, 742 F.3d 307,

325-26 (8th Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,

577 (D.C. Cir. 2013); Rivera v. Rochester Genesee Reg’l Transp.

Auth., 743 F.3d 11, 24 (2d Cir. 2012); McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1116 (9th Cir. 2004).

      Consequently, a reasonable jury could find that Clubb’s two

uses of the “porch monkey” epithet — whether viewed as a single

incident or as a pair of discrete instances of harassment — were

severe enough to engender a hostile work environment.                      Cf. Adams

                                       33
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1253-54 (11th Cir.

2014)      (concluding        that,       although        a    Caucasian           supervisor’s

carving of “porch monkeys” into the aluminum of a ship where he

was working with the African-American plaintiff “was an isolated

act,       it     was     severe”);        Ayissi-Etoh,              712        F.3d        at    577

(acknowledging that, where a supervisor “used a deeply offensive

racial epithet [‘nigger’] when yelling at Ayissi-Etoh to get out

of   the    office,”      that    “single     incident           might      well       have      been

sufficient to establish a hostile work environment”); id. at 580

(Kavanaugh, J., concurring) (“[I]n my view, being called the n-

word by a supervisor — as Ayissi-Etoh alleges happened to him —

suffices        by   itself      to      establish        a    racially          hostile         work

environment.”).

       In thus vacating the summary judgment award on Liberto’s

hostile work environment claims, we identify this as the type of

case    contemplated        in    Faragher        where        the     harassment,           though

perhaps     “isolated,”       can     properly       be       deemed       to    be    “extremely

serious.”         See Faragher, 524 U.S. at 788.                      We also acknowledge

that this is a first for our Court.                           We reject, however, any

notion that our prior decisions, including Jordan v. Alternative

Resources        Corp.,    were     meant    to    require           more       than    a    single

incident of harassment in every viable hostile work environment

case.           Specifically,       we     observe        that       the        district         court

improperly analogized this matter (involving a racial epithet

                                             34
directed at Liberto by her supervisor) to Jordan (concerning a

racist remark that was made by a mere co-worker and not aimed at

Jordan or any other employee).            See 458 F.3d 332, 339-40 (4th

Cir. 2006).    We further note that, in the cases unfavorably

compared to this one by the district court, the harassment was

so severe and pervasive that there were no close calls.                     See

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

(“The    evidence    was   unquestionably          sufficient     to    submit

Anderson’s hostile environment claim to the jury.”); Conner v.

Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 199 (4th Cir.

2000) (“[T]here is ample support for the jury finding of severe

or pervasive conduct sufficient to constitute a hostile work

environment.”);     Amirmokri   v.   Balt.   Gas    &   Elec.   Co.,   60   F.3d

1126, 1131 (4th Cir. 1995) (“A reasonable person could easily

find this atmosphere to be hostile.”).              Liberto’s case may be

different from Anderson, Conner, and Amirmokri, but it is no

less worthy of a jury trial. 4


     4
       We do not suggest that a jury should be limited to
assessing whether Clubb’s two uses of the “porch monkey” slur,
without more, created a hostile work environment.    A jury also
would be entitled to consider other evidence potentially
indicative of severe or pervasive harassment, including Clubb’s
treatment of Liberto throughout her short tenure at the Clarion;
Clubb’s shouting, spitting, and stalking on the night of
September 14, 2010; and Clubb’s use of the term “little girl” to
refer to Liberto on September 15.   See, e.g., Conner, 227 F.3d
at 197 (“The more serious incidents enumerated here were
complemented  by   numerous  additional  occurrences   that,  in
(Continued)
                                     35
                                      B.

                                      1.

     Turning     to     Liberto’s     retaliation     claims,       Title   VII

proscribes     discrimination       against   an    employee    because,     in

relevant part, she “has opposed any practice made an unlawful

employment practice by this subchapter.”               42 U.S.C. § 2000e-

3(a).   Employees engage in protected oppositional activity when,

inter alia, they “complain to their superiors about suspected

violations of Title VII.”            Bryant v. Aiken Reg’l Med. Ctrs.

Inc., 333 F.3d 536, 543-44 (4th Cir. 2003).                To establish a

prima facie case of retaliation in contravention of Title VII, a

plaintiff    must     prove   “(1) that    she   engaged   in   a    protected

activity,” as well as “(2) that her employer took an adverse

employment action against her,” and “(3) that there was a causal

link between the two events.”          EEOC v. Navy Fed. Credit Union,

424 F.3d 397, 405-06 (4th Cir. 2005).            A prima facie retaliation

claim under 42 U.S.C. § 1981 has the same elements.                  See Honor

v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir.

2004); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446




isolation, may have seemed less problematic, but which actually
served to exacerbate the severity of the situation.”).



                                      36
(2008)     (confirming       that        “§ 1981          encompasses        retaliation

claims”). 5

      In the context of element one of a retaliation claim, an

employee      is   protected      when        she    opposes        “not    only   . . .

employment actions actually unlawful under Title VII but also

employment actions [she] reasonably believes to be unlawful.”

Navy Fed., 424 F.3d at 406.                   The Title VII violation may be

complete, or it may be in progress.                  See id. at 406-07; see also

Jordan, 458 F.3d at 340-41 (“Navy Federal holds that an employee

seeking    protection     from    retaliation         must    have     an    objectively

reasonable belief in light of all the circumstances that a Title

VII   violation     has   happened       or    is    in    progress.”);       Peters   v.

Jenney,    327     F.3d   307,   320     (4th       Cir.    2003)    (concluding,      in

reliance on decisions under Title VII, that “to show protected

activity, the plaintiff in a Title VI retaliation case need only

prove that he opposed an unlawful employment practice which he

reasonably believed had occurred or was occurring” (alterations

and   internal     quotation     marks    omitted)).           In    other    words,   an

      5
       We observe that, although the elements of prima facie
Title VII and § 1981 retaliation claims are identical, the
causation standard for a Title VII claim may differ from that
for a § 1981 claim after the Supreme Court’s decision in
University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (2013) (holding that but-for standard of causation
applies to Title VII retaliation claims). We need not consider
that question today, however, because the defendants have raised
no issue with respect to causation.



                                          37
employee       is    protected      from   retaliation         when     she    opposes     a

hostile work environment that, although not fully formed, is in

progress.

                                             a.

       The panel majority in Jordan ruled that, where an employee

has    complained      to     his   employer       of    an   isolated        incident    of

harassment insufficient to create a hostile work environment,

the employee cannot have possessed a reasonable belief that a

Title VII violation was in progress, absent evidence “that a

plan was in motion to create such an environment” or “that such

an environment was [otherwise] likely to occur.”                          See 458 F.3d

at 340.        We reject that aspect of Jordan today, however, for

several reasons.

       First    of    all,    the    Jordan       standard     “imagines       a   fanciful

world    where       bigots    announce      their       intentions     to     repeatedly

belittle racial minorities at the outset, and it ignores the

possibility that a hostile work environment could evolve without

some    specific      intention      to    alter     the      working    conditions       of

African-Americans through racial harassment.”                         See Jordan, 458

F.3d at 353-54 (King, J., dissenting).                         Tellingly, intent to

create a hostile work environment is not an element of a hostile

environment claim.

       The   Jordan     standard      also    is    at    odds   with    the       hope   and

expectation that employees will report harassment early, before

                                             38
it rises to the level of a hostile environment.                                         Where the

harasser is her supervisor and no tangible employment action has

been    taken,      the     victim      is    compelled          by    the    Ellerth/Faragher

defense to make an internal complaint, i.e., “to take advantage

of any preventive or corrective opportunities provided by the

employer.”          See   Faragher,          524    U.S.    at        807.      Similarly,       the

victim    of    a    co-worker’s          harassment        is        prudent    to     alert    her

employer in order to ensure that, if the harassment continues,

she can establish the negligence necessary to impute liability.

See Vance, 133 S. Ct. at 2453.                         The reporting obligation is

essential      to     accomplishing           Title     VII’s          “primary        objective,”

which    is    “not    to    provide         redress       but    to     avoid    harm.”         See

Faragher, 524 U.S. at 806.                    Thus, we have recognized that the

victim is commanded to “report the misconduct, not investigate,

gather    evidence,         and   then       approach       company          officials.”         See

Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th

Cir.    2001).        Further,       we      have    emphasized         that     an     employee’s

“generalized fear of retaliation does not excuse a failure to

report       . . .     harassment,”            particularly             where         “Title     VII

expressly      prohibits          any     retaliation            against        [the    reporting

employee].”         See Barrett, 240 F.3d at 267.

       But    rather      than    encourage          the    early       reporting        vital    to

achieving Title VII’s goal of avoiding harm, the Jordan standard

deters harassment victims from speaking up by depriving them of

                                                39
their       statutory       entitlement           to        protection      from    retaliation.

Such    a     lack   of     protection           is    no    inconsequential        matter,      for

“fear       of   retaliation          is    the       leading      reason    why    people      stay

silent        instead      of    voicing          their        concerns      about       bias    and

discrimination.”               See Crawford v. Metro. Gov’t of Nashville &

Davidson         Cnty.,     Tenn.,         555    U.S.        271,    279    (2009)      (internal

quotation        marks     omitted).             Quelling          that   fear,    the    Crawford

Court extended protection “to an employee who speaks out about

discrimination           not    on     her       own       initiative,      but    in    answering

questions during an employer’s internal investigation.”                                    See id.

at 273.          To do otherwise, the Court explained, would “create a

real    dilemma       for      any    knowledgeable            employee.”          Id.    at    279.

Namely, “[i]f the employee reported discrimination in response

to the enquiries, the employer might well be free to penalize

her     for      speaking       up.         But        if    she     kept   quiet       about   the

discrimination and later filed a Title VII claim, the employer

might well escape liability [by invoking the Ellerth/Faragher

defense].”           Id.       The Court concluded that “[n]othing in the

statute’s text or our precedent supports this catch-22.”                                         Id.

Of course, the same can be, and has been, said about the Jordan

standard.         See Jordan, 458 F.3d at 355 (King, J., dissenting)

(“As a result of today’s decision, employees in this Circuit who

experience racially harassing conduct are faced with a ‘Catch-

22.’”).

                                                      40
       Put succinctly, the Jordan standard is incompatible with

Crawford, as well as other Supreme Court decisions directing

that Title VII’s antiretaliation provision be interpreted “to

provide broad protection from retaliation.”                     See Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also,

e.g., Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75

(2011).      As the Burlington Northern Court explained, Title VII

must   be    read     “to   provide     broader       protection    for     victims    of

retaliation than for [even] victims of race-based, ethnic-based,

religion-based,          or      gender-based          discrimination,”          because

“effective enforcement could . . . only be expected if employees

felt free to approach officials with their grievances.”                          See 548

U.S. at 66-67 (internal quotation marks omitted)).

       Finally,     we    need   look   no   further      than     Jordan     itself   to

comprehend that the Jordan standard is unsuited to its purpose.

In Jordan’s presence, his co-worker made a comment that, “in a

single      breath,      . . .    equated        African-Americans        with    ‘black

monkeys’ and ‘black apes,’ and implied a savage, bestial sexual

predilection        acutely      insulting       to   members      of   the      African-

American community.”             See Jordan, 458 F.3d at 351 (King, J.,

dissenting).        Jordan then did exactly what Title VII hopes and

expects:      He reported the comment to his employers in an effort

to avert any further racial harassment.                   Because of his internal

complaint, however, Jordan was fired.                   In light of the text and

                                            41
purpose of Title VII, as well as controlling Supreme Court and

Fourth Circuit decisions, Jordan surely merited protection from

retaliation.       That is,

     [w]ithout question, [the comment made by Jordan’s co-
     worker] is the stuff of which a racially hostile work
     environment is made. On the allegations here, it was
     entirely reasonable for Jordan to believe that, in
     reporting the racially charged ‘black monkeys’ comment
     to his employers, he was opposing a racially hostile
     work environment.

Id. at 355 (citations omitted).               But, by devising and applying

the Jordan standard, we denied Jordan any legal recourse for his

retaliatory       discharge.        In   these     circumstances,         the    Jordan

standard plainly cannot endure.

                                         b.

     The   question,       then,    becomes       this:      What    is    the    proper

standard   for     determining      whether       an   employee     who    reports   an

isolated incident of harassment has a reasonable belief that she

is opposing a hostile work environment in progress?                       We conclude

that, when assessing the reasonableness of an employee’s belief

that a hostile environment is occurring based on an isolated

incident, the focus should be on the severity of the harassment.

Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71

(2001) (looking to severity of single incident in evaluating

reasonableness       of    employee’s        belief       that   incident        created

actionable hostile environment).               That assessment thus involves

factors    used     to    judge    whether    a    workplace        is    sufficiently

                                         42
hostile or abusive for purposes of a hostile environment claim —

specifically, whether the discriminatory conduct “is physically

threatening or humiliating, or a mere offensive utterance.”                          See

Harris, 510 U.S. at 23.            Of course, a single offensive utterance

—    e.g.,     “simple     teasing”       or     an   “offhand     comment[],”       see

Faragher, 524 U.S. at 788 — generally will not create a hostile

environment without significant repetition or an escalation in

the harassment’s severity.                See Ayissi-Etoh, 712 F.3d at 579

(Kavanaugh, J., concurring) (“The more severe the harassment,

the less pervasive it needs to be, and vice versa.” (internal

quotation marks omitted)).                But an isolated incident that is

physically threatening or humiliating will be closer — even if

not equal — to the type of conduct actionable on its own because

it is “extremely serious.”              See Faragher, 524 U.S. at 788.

       Accordingly,       as   relevant     here,     an     employee    will     have   a

reasonable belief that a hostile work environment is occurring

based on an isolated incident if that harassment is physically

threatening or humiliating.                This standard is consistent not

only   with       Clark   County,    but       also   with    other     Supreme    Court

precedent, including Crawford and Burlington Northern.                          That is

so   because      it   protects    an    employee     like    Jordan     who    promptly

speaks up “to attack the racist cancer in his workplace,” rather

than “remain[ing] silent” and “thereby allowing [discriminatory]

conduct      to     continue      unchallenged,”        while     “forfeiting        any

                                           43
judicial remedy he might have.”              See Jordan, 458 F.3d at 356

(King, J., dissenting).

     In   sum,     under   the    standard    that   we   adopt    today   with

guidance from the Supreme Court, an employee is protected from

retaliation for opposing an isolated incident of harassment when

she reasonably believes that a hostile work environment is in

progress, with no requirement for additional evidence that a

plan is in motion to create such an environment or that such an

environment   is    likely   to    occur.     The    employee     will   have   a

reasonable belief that a hostile environment is occurring if the

isolated incident is physically threatening or humiliating. 6


     6
       Notably, in its brief as amicus curiae supporting Liberto,
the EEOC urges us to adopt a standard suggested by the Jordan
dissent:    that an employee engages in a protected opposition
activity when she complains about an isolated incident of
harassment that would create a hostile work environment if
repeated often enough.    See Jordan, 458 F.3d at 354 (King, J.,
dissenting) (“When the cumulative nature of such an environment
is properly considered, it is clear that employees are protected
under Title VII from employer retaliation if they oppose conduct
that,    if   repeated,   could   amount   to   a   hostile  work
environment.”).    When the isolated incident is merely offensive
— rather than physically threatening or humiliating — the if-
repeated standard might well be appropriate.      Contrary to the
argument of the defendants, it is not necessarily precluded by
the Supreme Court’s Clark County decision.      That is, although
the Court concluded that the Clark County plaintiff had not
engaged in a protected opposition activity by reporting an
isolated incident that was merely offensive, the Court did so by
assessing whether the plaintiff could have reasonably believed
that incident alone created a hostile environment.     See 121 S.
Ct. at 270-71. The Court did not consider whether the plaintiff
could have reasonably believed that a hostile work environment,
even though not fully formed, was in progress. In any event, we
(Continued)
                                      44
                                             2.

       Because        the    defendants        contested       Liberto’s          retaliation

claims on the lone ground that she did not engage in a protected

activity, our analysis is limited to whether a jury could find

that    Liberto       reasonably        believed     there      was        a    hostile      work

environment in progress when she reported Clubb’s use of the

“porch monkey” slur.              Applying the standard that we adopt today,

the answer plainly is “yes.”                      As we recognized in analyzing

Liberto’s hostile work environment claims, “porch monkey” is a

racial epithet that is not just humiliating, but “degrading and

humiliating in the extreme.”                     See Spriggs, 242 F.3d at 185.

Indeed, we determined that a reasonable jury could find that

Clubb’s    two    uses       of    “porch    monkey”         were    serious       enough       to

engender    a    hostile       environment.             We    must    further       conclude,

therefore,       in    the    context       of    the    retaliation            claims,      that

Liberto    has    made      the    lesser    showing         that    the       harassment     was

sufficiently      severe          to   render     reasonable         her       belief    that    a

hostile environment was occurring.                      Accordingly, we vacate the

summary    judgment         award      on   Liberto’s        retaliation          claims,       in

addition    to    her       hostile     work     environment         claims.            We   also



need not decide herein whether to embrace the if-repeated
standard   for   cases involving isolated, merely offensive
incidents of harassment, because this matter involves more
serious conduct.



                                             45
underscore       that,         on     remand,     a   jury      would    be     entitled       to

simultaneously reject the hostile work environment claims on the

ground    that       Clubb’s        conduct     was   not      sufficiently        serious    to

amount    to     a    hostile         environment,        but    award    relief         on   the

retaliation claims by finding that Clubb’s conduct was severe

enough    to     give      Liberto       a     reasonable       belief    that     a     hostile

environment, although not fully formed, was in progress.

                                                 C.

       Our good dissenting colleague has a different view of the

controlling law, the relevant facts, and even what our en banc

majority does and does not say.                       See post at 68-106 (Niemeyer,

J., dissenting).               With respect to the hostile work environment

claims, there is disagreement over what the Supreme Court meant

by this sentence from Faragher:

       A recurring    point   in  [our  hostile  environment]
       opinions is that simple teasing, offhand comments, and
       isolated incidents (unless extremely serious) will not
       amount to discriminatory changes in the terms and
       conditions of employment.

See 524 U.S. at 788 (internal quotation marks omitted).                                 We read

that     sentence         to     pronounce       that     an     isolated       incident      of

harassment,          if     extremely          serious,        can   create        a     hostile

environment.              But,      clinging     to   Faragher’s        use   of       “isolated

incidents” in the plural, the dissent posits that only multiple,

“extremely       serious            isolated     incidents       . . .    may      produce      a

hostile work environment.”                   Post at 88.

                                                 46
      Clearly, it is the dissent’s interpretation of Faragher —

not   ours    —   that        is   untenable.       To   illustrate,        the   dissent

elsewhere observes that a hostile environment claim “must be

‘based on the cumulative effect of individual acts,’” post at 71

(quoting Morgan, 536 U.S. at 115), and that, “to be actionable

under Title VII, conduct must be so ‘severe or pervasive’ as ‘to

alter the conditions of [the victim’s] employment and create an

abusive      working      environment,’”           id.   at     70   (alteration        in

original) (emphasis added) (quoting Meritor, 477 U.S. at 67).

Strikingly, the dissent does not — and surely cannot — explain

what differentiates “isolated incidents” that must be “extremely

serious,”      from      “individual        acts”    that     may    be     “severe    or

pervasive.”       The dissent also quotes from Morgan that “‘a single

act of harassment may not be actionable on its own,’” id. at 71

(quoting Morgan, 536 U.S. at 115), without acknowledging the

obvious      import      of    Morgan’s      use    of   “may    not”     rather      than

“cannot.”         And,    the      dissent    itself     allows      that    a    single,

isolated incident of physical violence may be actionable, id. at

88, without even attempting to reconcile that proposition with

its reading of Faragher.

      Relatedly, the dissent criticizes us for “fail[ing] to note

that the portions of Faragher to which [we] cite[] were part of

the    Supreme        Court’s        much     lengthier       discussion          —   and

substantively different message — describing the type of conduct

                                             47
that would not violate Title VII.”              Post at 69.        In pursuing its

position, the dissent simply ignores Faragher’s use of “unless

extremely serious” to designate an exception to those isolated

incidents that are not unlawful on their own.

     Meanwhile,      the   dissent       repeatedly          invokes    Faragher’s

observation,   “Mere    utterance     of    an    ethnic      or   racial    epithet

which   engenders    offensive     feelings      in    an    employee   would    not

sufficiently alter terms and conditions of employment to violate

Title VII.”    See Faragher, 524 U.S. at 787 (internal quotation

marks omitted).       But the dissent overemphasizes the first part

of that sentence, at one point quoting the entire sentence while

underscoring   only    “[m]ere     utterance      of    an    ethnic    or   racial

epithet,” see post at 69, and at another point actually omitting

the phrase “which engenders offensive feelings in an employee,”

see id. at 88.      Of course, the phrase “which engenders offensive

feelings in an employee” is a critical qualifier, signifying “a

mere offensive utterance” rather than a more egregious slur that

is “physically threatening or humiliating.”                   See Faragher, 524

U.S. at 787-88 (explaining that the circumstances relevant to

determining “whether an environment is sufficiently hostile or

abusive”   include     “‘whether    it     is    physically        threatening   or

humiliating, or a mere offensive utterance’” (quoting Harris,

510 U.S. at 23)).



                                      48
       In       any    event,   the    dissent   consistently      minimizes   the

seriousness of Clubb’s two uses of the “porch monkey” slur by

deeming them to be merely offensive as a matter of law.                     To do

so, the dissent invents a test under which harassment cannot

rise       to    the    level   of    humiliating   unless    it    is   “publicly

humiliating,” and points out that “it appears that no one heard

Clubb direct the epithet at Liberto on either occasion.”                       See

post at 88-89.           The dissent also flouts our mandate to view the

facts in the light most favorable to Liberto, and insists that,

as a fact, “Liberto thought that she was being upbraided by a

co-worker, not her supervisor.”                Id. at 89.    Regardless of what

else Liberto perceived about Clubb’s status, however, there is

ample evidence in the record showing that Liberto reasonably

believed that Clubb possessed the one supervisory power that

mattered:         the power to follow through on her threats to have

Dr. Berger rubber-stamp Liberto’s discharge. 7


       7
       Notably, although the defendants themselves failed to
argue in the district court that Clubb was not actually
Liberto’s supervisor, the dissent wanders into that issue and
declares it “highly doubtful that Clubb . . . would qualify as
Liberto’s supervisor.”   See post at 84-85 (describing Clubb as
“an employee whose only influence comes from having the ear of
the company’s owner because of their personal friendship”). The
dissent’s characterization of Clubb is contradicted by portions
of the record, including the September 18, 2010 email in which
Elman, the Clarion’s General Manager, recounted responding to
Liberto’s racial harassment complaint by advising her that she
and Clubb “need[ed] to learn to work together on a professional
level and that [Clubb] was [Liberto’s] boss.” J.A. 324. Rather
(Continued)
                                          49
       As for the retaliation claims, the dissent accuses our en

banc    majority   of   “gratuitously   proceed[ing]   to   adopt   an

unprecedented standard . . . that is much broader than necessary

to resolve Liberto’s claim[s].”         Post at 93.    The dissent’s

accusation rests on the false premise that we hold as a matter

of law that a hostile work environment existed.        In reality, we

simply conclude that a reasonable jury could find for Liberto

with respect to her hostile environment claims.        Because it is

possible that Liberto will instead come up short at trial on

those claims, our retaliation analysis is essential.        Indeed, we

have emphasized that a jury may find that Clubb’s conduct was

insufficiently serious to engender a hostile environment, but

severe enough to protect Liberto from retaliation by rendering

reasonable her belief that such an environment was underway.




than grappling with that important evidence from the Clarion’s
own General Manager, the dissent chastises us for considering
what it glibly terms “Elman’s apparent understanding of Clubb’s
relationship to Liberto.” See post at 86 n.*.

     Meanwhile, two other of our good colleagues deem Clubb to
have been Liberto’s mere co-worker and thereby conclude that the
Clarion cannot be held vicariously liable for Clubb’s harassment
of Liberto.    See post at 56-58 (Wilkinson, J., concurring in
part and dissenting in part, joined by Agee, J.).          Those
colleagues not only disregard evidence that Clubb was Liberto’s
supervisor, but also urge affirmance of the summary judgment
award with respect to the hostile environment claims on a ground
that the defendants failed to raise or preserve in the district
court.



                                  50
       Unfortunately, there are further instances of the dissent’s

inaccurate portrayal of today’s decision.                          For example, although

we observe herein that our standard “protects an employee like

Jordan” from retaliation, the dissent asserts that we nowhere

“indicate that the plaintiff in Jordan had a reasonable belief

that a hostile work environment was taking shape at the time he

reported       his    co-worker’s       racist         comment     to    his    supervisors.”

See post at 99.            So, for the sake of clarity (though too late to

benefit Jordan himself), we state in plain terms that a jury

applying our standard could have found that Jordan reasonably

believed       he    was     opposing      a    hostile       environment       in   progress.

That is because the “black monkeys” comment uttered to Jordan —

like the “porch monkey” slurs aimed at Liberto — could readily

be deemed physically threatening or humiliating.

       We are entirely unswayed by the dissent’s warning that our

standard       “will       generate     widespread           litigation     over      the    many

offensive workplace comments made everyday that employees find

to   be    humiliating.”             See       post    at    93-94.       Our     standard    is

implicated          solely    when    an       employee        suffers    retaliation        for

engaging in an oppositional activity, and can be satisfied only

by showing the objective reasonableness of the employee’s belief

that      an    isolated         incident         of     harassment         was      physically

threatening          or    humiliating.           We        also   reject      the   dissent’s

prediction          that   our   “standard        will       surely     generate      many    new

                                                 51
questions” and “much hand-wringing” over which harassing conduct

qualifies as sufficiently severe.               See id. at 96, 105.         Judges

and juries have been identifying what is humiliating, as well as

what is physically threatening or merely offensive, since at

least 1993, when the Supreme Court explained in Harris how to

determine whether a workplace is objectively hostile or abusive

for purposes of a hostile environment claim.                   See 510 U.S. at

23. 8

        Finally, we are perplexed and dismayed by the dissent’s

assertions that, on the one hand, “Liberto had every right to be

offended by Clubb’s use of a racial epithet and acted reasonably

and responsibly in reporting the incident,” see post at 98, and

that, on the other hand, Liberto spoke up too soon and thereby

deprived herself of protection from retaliation.                 As the dissent

would have it, although reporting Clubb’s slur was a sensible

thing       to   do,    Liberto    should      have   waited    for     additional

harassment       to    occur   —   but   not   so   much   harassment    that   the


        8
       Two of our colleagues issue dire warnings that today’s
decision may cause “employers [to] become speech police,”
“employees [to be] estranged from one another,” and “companies
[to] become private sector analogues of the surveillance state.”
See post at 55 (Wilkinson, J., concurring in part and dissenting
in part, joined by Agee, J.). We cannot agree, however, that by
simply protecting an employee who, for example, reports a race-
based comment that she reasonably believes to be physically
threatening or humiliating, we might somehow silence or
segregate the workforce.



                                          52
Clarion could avoid vicarious liability because of a lack of

timely notice.        Concomitantly, the dissent contends that our

decision     “manifests      a   fundamental      distrust        of    employers,

assuming    that,    once    a   humiliating     epithet     is    uttered,    the

development of a hostile work environment is a fait accompli —

in other words, that employers are powerless or unwilling to

prevent a descent into pervasive hostility.”              Id. at 105.

     Contrary to the dissent, we seek to promote the hope and

expectation — ingrained in our civil rights laws and the Supreme

Court decisions interpreting them — that employees will report

harassment early, so that their employers can stop it before it

rises to the level of a hostile environment.                      Employers are

powerless    in     that    regard   only   if    they     are     unaware    that

harassment is occurring.          But employees will understandably be

wary of reporting abuse for fear of retribution.                   Under today’s

decision, employees who reasonably perceive an incident to be

physically threatening or humiliating do not have to wait for

further     harassment      before   they   can    seek    help        from   their

employers without exposing themselves to retaliation.




                                      53
                              IV.

     Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such other and further proceedings

as may be appropriate.

                                            VACATED AND REMANDED




                               54
WILKINSON, Circuit Judge, with whom AGEE, Circuit Judge, joins,
concurring in part and dissenting in part:

       The remarks alleged in this Title VII action are ones that

Americans of every race and all walks of life would find so

wounding    that   the     word      offensive     does    not    begin     to   describe

them. It is incidents such as these, small as they may appear,

that   prevent     our    larger      society      from   becoming      the      place    of

welcome it needs to be.

       The good done by the civil rights laws has been enormous

and one aim of those laws, as I understand it, is to make the

workplace    an     environment          where     Americans       of      every     race,

religion, sex, or national origin would actually want to work.

42 U.S.C. § 2000e-2 and 2000e-3.

       To say that a good workplace environment is poisoned by the

kind of remarks alleged here is an understatement. Who would

wish   to   get    up    and    come     to    work   each       morning    fearful       of

encountering this sort of slur during the course of the working

day?

       There is a countervailing danger at play in these cases,

however,    namely       that   we    not     imbue   the       workplace     with      such

stringent hostile work environment requirements that employers

become   speech    police,        that   employees        are    estranged       from    one

another, and that companies become private sector analogues of

the surveillance state.


                                              55
       Where and how to strike the balance? In this case I would

decline to hold the employer vicariously liable on the merits of

the hostile work environment claim, but I would allow Boyer-

Liberto’s retaliation claim to proceed. In fact, were the truth

of her complaint ascertained by the employer, the “retaliation”

should have taken the form of Clubb’s dismissal and not Boyer-

Liberto’s.



                                          I.

       As to the merits of the hostile work environment claim, I

would affirm the judgment of the district court on the grounds

that   any   other   result       would   stretch    the    notion    of    vicarious

employer     liability   past      the    breaking   point.    There       may   be   an

understandable temptation to land hard on this employer, but

there are dangers down the road. Holding employers liable for

remarks made by one of their employees where the majority points

to   no   prior   notice     to    the    employer    and    no     prior    employer

awareness of Clubb’s racist tendencies is all too open-ended. To

be   sure,   an   employer    is    “directly    liable”      for    a   co-worker’s

unlawful harassment if “the employer was negligent with respect

to the offensive behavior.” Vance v. Ball State Univ., 133 S.

Ct. 2434, 2441 (2013). But while the majority tries to make it

appear as though some other evidence of employer malfeasance may

be somewhere in the offing, see Maj. Op. at 35 n.4, its opinion

                                          56
is wholly focused on the two incidents and remarks at issue and

intent     on    directing     a   trial     where    the     element    of     imputed

employer liability has not been placed genuinely in dispute.

     Whatever hazy ground Clubb may occupy between co-worker and

supervisor,       the    hazards    of     imposing       employer    liability    for

remarks    made    by    mid-level       workers     in    workforces     that   might

number     in    the    hundreds      or    even     thousands       pushes     imputed

liability well beyond the more cabined circumstances of physical

injury and actual adverse employment actions such as failures to

promote or discharge. Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 67-68 (2006). In this case, there were roughly

seventy-five people in the hotel’s food and beverage department

alone. J.A. 135.

     Having liability hinge upon utterances, of which companies

have no prior awareness and which no victim has yet reported to

them,    poses    more    than     the     threat    of    open-ended     liability.

Because liability hinges on unanticipated utterances, it will

tend to drive employers as a protective measure into the role of

censors of all speech that even conceivably could give offense.

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

(rejecting employer liability for “the sporadic use of abusive

language,        gender-related          jokes,      and     occasional       teasing”

(citation and quotation marks omitted)). We may assuredly expect

the arrival of workplace speech codes, which, if not already

                                           57
present,       will      not    be       long      in    coming.     Oncale       v.   Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that Title

VII    was    not     meant         to   be   “a    general       civility      code    for   the

American workplace”). Such a heavy employer hand is a high price

to pay for the majority’s holding, and it is one that is not

congruent      with      Supreme         Court      rulings    or    consistent        with    our

freedoms.



                                                   II.

       As to the Title VII retaliation claim, an employee must

show that her belief that a hostile work environment exists or

is coming into existence is objectively reasonable. See Clark

Cnty.   Sch.      Dist.        v.    Breeden,       532    U.S.     268,    270    (2001)     (per

curiam) (applying the objective standard); EEOC v. Navy Fed.

Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005).

       Under      the    circumstances             presented      here,    Liberto’s     belief

that    a    hostile      work       environment          existed    or    was     coming     into

existence was objectively reasonable. The words alleged to have

been spoken by Clubb were abhorrent. Moreover, Clubb uttered the

epithet      on   separate          occasions        and   directed        it   personally      at

Liberto.       And      the    entire         course      of   conduct      surrounding        the

offensive remarks was abusive. This conduct on the part of Clubb

was enough to bring Boyer-Liberto under the protection of the

anti-retaliation provision of Title VII when she reported it. An

                                                   58
employee is not an expert in hostile work environment law. Any

reasonable       person     must    feel     free       to     report   this      sort     of

vilification without being subject to retaliatory actions. An

employee must feel safe and secure in bringing an incident of

this nature to the attention of management.

       Any decent management, moreover, would seemingly wish to

know of such an occurrence under its roof. Employers must have

complaint procedures for employees to utilize at an early stage

--    before     harassing      environments           intensify    and      spread.     See

Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

Employers are due adequate notice so that they may head off both

the    hostile     work     environment          and    any     resultant        liability.

Employees benefit when an emergent hostile work environment is

nipped in the bud.

       But here, too, there is a balance to be struck. The annual

number of Title VII retaliation charges filed with the EEOC has

nearly doubled since the late 1990s. Univ. of Tex. Sw. Med. Ctr.

v.    Nassar,    133   S.    Ct.    2517,     2531       (2013).     Perhaps      American

employers      have    become      twice    as    likely       to   retaliate      against

employees since 1997, but I doubt it. One cause of the dramatic

increase    of    retaliation       claims       may    very    well    be   a    sub    voce

chipping away at the objectively reasonable belief standard. See

Id.    at   2531-32       (suggesting        that       “lessening      the      causation

                                            59
standard” for retaliation claims “could also contribute to the

filing of frivolous claims”). The majority’s approach may very

well “raise the costs, both financial and reputational, on an

employer” where there is no true objectively reasonable belief

in the existence of a hostile workplace. Id. at 2532.

          The dangers of allowing the objective standard to slip,

however, go far beyond the financial and reputational costs to

companies.           Two     severe,        if     subtle,        side    effects        warrant

discussion: the trammeling of free speech and the construction

of workplace barriers between the races and sexes.

                                                   A.

          If    courts      lessen         their    insistence       on     an    objectively

reasonable          belief       in    a    hostile     environment        and    permit       the

reporting of all manner of perceived slights to warrant Title

VII protection, we become party to the creation of the workplace

as    a    zone      where    First        Amendment      values     have       ceased    to    be

observed. In the context of a hostile work environment claim, it

is “crucial” to use an objectively reasonable person standard

“to   ensure         that    courts        and     juries    do    not    mistake       ordinary

socializing          in    the    workplace”        for     actionable      discrimination.

Oncale         v.   Sundowner         Offshore     Servs.,    Inc.,       523    U.S.    75,   81

(1998). The same is true for retaliation claims.

          People will -- and should –- discuss controversial matters

at work. Some of those subjects may well pertain to race and

                                                   60
gender. Disagreement on these and other matters may be heated

and robust, but it should not on that account be reportable.

People    may    also     say     offensive        things        in     the     workplace.

Distasteful, even offensive, speech is unfortunate but it is

often a “necessary side effect[] of the broader enduring values”

that the First Amendment protects. Cohen v. California, 403 U.S.

15, 25 (1971). The premise of the First Amendment is that we as

a people not leap quickly to suppression, see Texas v. Johnson,

491 U.S. 397, 414 (1989), which may well occur if reportage and

punishment for mere speech is an omnipresent possibility.

       The remarks alleged here reached the point of abusiveness

accompanied by threatening and intimidating body language. Clubb

approached so closely that Boyer-Liberto “could feel her breath”

and the shouting caused Clubb to “spit on [her] face.” J.A. 241.

       Actions    are     one     thing.     The        greater       danger      lies    in

predicating      liability      on   remarks.       Not    here,        because    Clubb’s

language, to say the very least, played “no essential part [in]

any exposition of ideas.” Chaplinksy v. New Hampshire, 315 U.S.

568,     572    (1942).     But      there       will     be     many     instances        of

uncomfortable      workplace      speech     that       cannot    on     that     basis    be

deemed    actionably      hostile.     It    has    always     been      the    case     that

“[t]o    justify     suppression        of       free     speech        there     must     be

reasonable ground to fear that serious evil will result if free

speech is practiced.” Whitney v. California, 274 U.S. 357, 376

                                            61
(1927) (Brandeis, J., concurring) (emphasis added). A central

“function of free speech under our system of government is to

invite dispute.” Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949). Unless the “evil” is “imminent . . ., the remedy to be

applied is more speech, not enforced silence.” Whitney, 274 U.S.

at 377 (Brandeis, J., concurring). More speech means insensitive

expression in the workplace should be countered and denounced as

such. But the bedrock meaning of the First Amendment will be

lost if the expression of disfavored or objectionable positions

on sensitive and volatile issues become subjects of reportage

and sanction. If every co-worker becomes a potential informant,

does this environment not in time come to resemble societies

other than our own?

       Anti-discrimination         initiatives       need    not    be    at   war    with

free speech. The values protected by the Fourteenth Amendment

need not be inconsistent with those safeguarded by the First.

Good things happen when people, in this case company employees,

talk    things    out      among   themselves.       Collective          discourse    and

decision-making       is    a   matter   the    First       Amendment      holds     dear.

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting) (noting that “the ultimate good desired is better

reached by free trade in ideas -- that the best test of truth is

the    power     of   the    thought     to    get     itself      accepted     in    the

competition      of   the    market”).    I    agree    with    the      majority    that

                                          62
“early reporting [is] vital to achieving Title VII’s goal of

avoiding     harm.”         Maj.     Op.       at    39.       But       the     majority     nowhere

acknowledges the dangers of over-reporting. It drifts ever so

casually toward draconian consequences for mere utterance and

speech. Such blindness to First Amendment values bespeaks a lack

of   faith       in    lateral      discussions               which      would       no   doubt     lead

nowhere in the case of Clubb and plaintiff, but which may be far

preferable        to       hair-trigger             reporting            in      working     out     the

misunderstandings that occur in every workplace.

      Workplaces           in    their    own       way       are    our      town     squares.     John

talking to Kathy may prove in the end more fruitful than John

running     to    a    higher       authority            to    have      Kathy’s        point-of-view

condemned. An objective test, not a subjective standard geared

to the most heightened sensibilities, best preserves the balance

between free speech and anti-discrimination law. The fact that

some incidents, as here, are plainly beyond the pale does not

mean we surrender hope in other instances of workers reaching

humane    understandings            in    discussions               with      themselves.     Turning

someone     in    as    a       course    of    first         resort       or     on    insubstantial

grounds     may       perpetuate         resentment           and     bring       the     prospect    of

employee dialogue to a premature end.

      The    law      of    hostile       environments              is     not    anchored     in    any

specific statutory provision. Rather, it was derived from Title

VII’s general prohibition of discrimination, Meritor Sav. Bank,

                                                    63
FSB v. Vinson, 477 U.S. 57, 64-67 (1986), and kept in proper

perspective,         it     helps         prevent       companies           from     becoming

intolerable places for racial, ethnic, and other minorities to

work.      Hostile      environment       doctrine      has     also      been     judicially

developed almost in the manner of federal common law. It would

be wrong not to infuse this development with one of the greatest

of   our    enumerated      constitutional          values,        that     of     freedom    of

speech. Especially when the speech concerns current affairs or

other    public      issues,      courts    must    take      notice.       See     Snyder    v.

Phelps,      131     S.     Ct.     1207,       1215-16        (2011).        The     framers

“believed . . . that             public    discussion         is   a    political        duty.”

Whitney,      274    U.S.    at    375     (Brandeis,      J.,      concurring).          Civic

health requires that Americans not be fearful of their freedoms,

whether in public or private venues, and especially a freedom so

precious as the exercise of speech. The majority unfortunately

takes less than token recognition of this value. It does not

herald     for   future     courts       the   dangers     of      taking     the    American

workplace down a more autocratic path.

                                               B.

      The     objects       of     civil       rights    laws       are      to     eliminate

discrimination,           bring     Americans       together,          and       break     down

barriers.        This     purpose     remains        crucial,          as    Congress        has

repeatedly attested. And yet our schools are resegregating. Our

neighborhoods in all too many instances are very far apart. The

                                               64
workplace may be where racial interactions are most frequent,

and it will be sad if law pushes this last remaining venue into

the    more     separatist        habits     that       elsewhere      too     frequently

prevail.

       Title VII guards against this. Title VII will be counter-

productive, however, if it countenances workplaces over-reliant

on employee surveillance and reportage. Such a system erects

barriers rather than dismantles them. In an ideal world, the

races and sexes would interact spontaneously, in natural and

creative ways. There would be no single correct way to behave

around, no single correct thing to say to, a worker of another

race    or     gender.       We   are     people    --     human      beings     --        with

commonalities far more profound than superficial differences.

       The     majority      surely     agrees.     Yet     by     focusing      on    sick

“bigots”       who    “belittle     racial       minorities,”       Maj.     Op.      at    38

(quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 353-54 (4th

Cir. 2006) (King, J., dissenting)), the majority sells the more

generous potential of most Americans short.

       Title     VII     must     not     contribute       an    added       element        of

inhibition      when    we    communicate        with    those   of    another     sex      or

race. And yet I fear that is precisely what will happen if the

objectively          reasonable     standard        is    diluted       in     favor        of

retaliation          protection     for     any     report,        however      marginal,

trivial, or unsubstantiated. The Supreme Court has made clear

                                            65
that Title VII’s “prohibition of harassment on the basis of sex

requires      neither      asexuality           nor     androgyny    in       the    workplace.”

Oncale,       523     U.S.      at        81.    But     where      every          ambiguous      or

unintentionally           insensitive           remark     is     going       to    be     reported

upstairs, employees naturally will seek to cluster with those

who    look,      act,    and    think          “like    themselves.”          Instead       of   an

interactive         community        in    which       individual        attributes         can   be

recognized,         understood,       celebrated,          and     embraced,         the    result

will   be     a    more   fractious         and       walled-off     working         environment

where noxious stereotypes persist. Keeping interracial distance

and    maintaining        interracial            silence     will     become         the    safest

course, the easiest way to avoid a blot on one’s record that

comes even with a co-worker’s erroneous report. This road is in

no    one’s       interest,     certainly          not     ours     as    a    nation       or    as

individuals in the simple search for friends. We must not become

others to ourselves.



                                                 III.

       The search for balance is important in law, lest the aims

of one of America’s greatest Acts be compromised by a needlessly

censored and suspicious workplace. I believe the majority is

right in allowing plaintiff’s retaliation claim to proceed, but

wrong in not affirming the district court on the merits of the

Title VII claim. More than that, I regret that my friends in the

                                                  66
majority did not do more to recognize that this is an equation

with   two   sides,   an   area   with    more   than   one   dimension.   The

harmony of balance is nowhere to be found.




                                     67
NIEMEYER, Circuit Judge, dissenting:

      The    majority         holds    that       an    employee’s      use   of   the      term

“porch monkey” twice in a 24-hour period, when talking to a

fellow employee about a single workplace incident, transformed

the workplace into a racially hostile environment and thereby

effected a discriminatory change in the terms and conditions of

the offended employee’s employment, in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

It holds further that the offended employee could therefore have

had a reasonable belief “that a hostile work environment [was]

in   progress,”         ante,       at 44    (emphasis       added),       such    that      her

opposition        to    the     incident      justified          her   retaliation          claim

against      her        employer.            It        reaches     these      unprecedented

conclusions by relying on selected and distilled snippets from

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which,

according        to    the     majority,      justify      the     conclusion      that      “an

‘isolated incident’ of harassment can ‘amount to discriminatory

changes     in    the       terms    and    conditions      of    employment,’         if    that

incident is ‘extremely serious,’” ante, at 26 (quoting Faragher,

524 U.S. at 788).

      Faragher, however, does not support the majority’s reading

of   it,    and       the    majority’s      conclusions         are   otherwise       without

precedent.            First,    in    the    very       quotation      relied     on   by    the

majority, the Faragher Court noted that “isolated incidents” --

                                               68
using the plural -- might, if “extremely serious,” satisfy the

severity requirement for racial harassment.                              524 U.S. at 788.

To rationalize its holding, the majority thus reads the plural

“incidents” in Faragher to refer only to a “single incident.”

       Second, and more importantly, the majority fails to note

that the portions of Faragher to which it cites were part of the

Supreme Court’s much lengthier discussion -- and substantively

different message -- describing the type of conduct that would

not violate Title VII.             In that discussion, the Court drew on

several   opinions    from       the     courts       of     appeals      and       noted,       for

instance,   that    the     “‘mere       utterance          of    an   ethnic        or    racial

epithet which engenders offensive feelings in an employee’ would

not sufficiently alter terms and conditions of employment to

violate Title VII.”         Faragher, 524 U.S. at 787 (emphasis added)

(quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see

also    Meritor    Sav.    Bank,       FSB     v.    Vinson,       477    U.S.       66    (1986)

(same).      The    Court        also    cited        approvingly         to     a    text       on

discrimination      law    which    observed,          in    part,       that    “a       lack   of

racial    sensitivity       does        not,        alone,       amount    to        actionable

harassment.”       Id. (quoting 1 Barbara Lindemann & Paul Grossman,

Employment Discrimination Law 349 (3d ed. 1996)).                               Finally, the

Court    summarized       some    of     its      earlier        rulings       in     the    very

paragraph relied on by the majority:



                                             69
      So, in Harris [v. Forklift Systems, Inc., 510 U.S. 17
      (1993)], we explained that in order to be actionable
      under   the    statute,     a    sexually   objectionable
      environment must be both objectively and subjectively
      offensive, one that a reasonable person would find
      hostile or abusive, and one that the victim in fact
      did perceive to be so.           We directed courts to
      determine whether an environment is sufficiently
      hostile   or    abusive    by    looking   at   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.      Most
      recently,   we   explained    that  Title VII   does  not
      prohibit genuine but innocuous differences in the ways
      men and women routinely interact with members of the
      same sex and of the opposite sex.       A recurring point
      in these opinions is that simple teasing, off-hand
      comments, and isolated incidents (unless extremely
      serious) will not amount to discriminatory changes in
      the terms and conditions of employment.

Id. at 787-88 (emphasis added) (citations and internal quotation

marks omitted).

      Without    the       abridged    Faragher        snippets,    which   fail   to

capture that case’s larger message, the majority is left with

virtually no support for its holdings and certainly none from

the   language        of   Title VII     or      any    Supreme    Court    decision

construing      it.        Indeed,    the     Supreme    Court     has   steadfastly

maintained that, to be actionable under Title VII, conduct must

be so “severe or pervasive” as “to alter the conditions of [the

victim’s] employment and create an abusive working environment.”

Meritor, 477 U.S. at 67 (alteration in original) (quoting Henson

v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)) (internal


                                            70
quotation marks omitted).             And because hostile work environment

claims by their “very nature involve[] repeated conduct,” the

Court has further recognized -- and the majority acknowledges,

see ante, at 26 -- that “a single act of harassment may not be

actionable on its own.”              Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 115 (2002).              Instead, such claims must be “based

on the cumulative effect of individual acts.”                     Id.

      To   be    absolutely     clear,     this    case    does      not      present      the

question of whether an employee should be allowed to call a

fellow employee a “porch monkey.”                  Such a racially derogatory

and highly offensive term does not belong in the workplace, and

I   condemn     it.      Nor   does   this      case    present      the      question      of

whether    an    employee,     justifiably        offended      by     being    called       a

“porch monkey,” should report such an incident to management.

Rather, the issues here are substantially narrower.

      Framed     by     principles    of   well-established            law,     the    first

question in this case is whether a reasonable jury could find

that an employee’s use of the term “porch monkey” twice in a 24-

hour period, when talking to a fellow employee about a single

incident,       could    objectively       be   considered        so    severe        as   to

transform       the   workplace   into     a    racially     hostile       environment,

thereby    effecting       a   discriminatory          change   in      the    terms       and

conditions of her employment.              And if we were to conclude that a

reasonable jury would be unable to make such a finding on the

                                           71
summary judgment record in this case, then the next question

would be whether a reasonable jury could find that the offended

employee engaged in protected activity when she reported the

conduct because she reasonably believed that her employer had

committed     or       was    in    the     process      of   committing        an    employment

practice that was made unlawful by Title VII.                                   See 42 U.S.C.

§ 2000e-3(a).

     I respectfully submit that the pertinent law, when applied

to the facts in the record, requires a negative response to both

questions.             I    would       therefore       affirm     the    district       court’s

similar conclusions.


                                                   I

     Reya         Boyer-Liberto,            an     African-American             woman,       began

working      at        the     Clarion        Resort      Fontainebleau              Hotel    (the

“Clarion”)        in       Ocean    City,    Maryland,        on   August 4,         2010.    The

Clarion is a typical oceanfront hotel, with several restaurants,

bars,   a    nightclub,            and    banquet      facilities,        and    it    typically

employs about 75 people in its Food and Beverage Department.

Liberto      started         as     a    morning       hostess     in    the    hotel’s      main

restaurant, but she proceeded to work in many of the hotel’s

other       Food       and         Beverage      positions,             including       serving,

bartending, and working banquets.                        According to Leonard Berger,

the Clarion’s owner, Liberto struggled in all of the positions


                                                 72
to which she was assigned, and he terminated her employment on

September 21, 2010, because she “had failed at four jobs” and

“[t]here [were] no more places for her.”

     During her employment, Liberto interacted with Trudi Clubb,

a white woman, who was a longtime employee at the Clarion and a

friend    of    Berger’s.           Clubb    worked       part-time   as       an    evening

restaurant manager, and she described her responsibilities in

that role 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 customers, getting the tables ready, getting

the buffet . . . ready, overseeing all the items that need to be

done,”    and   generally       helping      out     as    needed.    Clubb         directly

reported to Richard Heubeck, the Clarion’s Food and Beverage

Director, as well as Mark Elman, the hotel’s General Manager.

Clubb did not participate in hiring decisions, and there is no

indication      in    the    record     that      she     was   authorized          to   fire,

demote, or otherwise take tangible employment actions against

other members of the Clarion’s staff.

     In any event, whatever the exact nature of Clubb’s role at

the Clarion, Liberto testified during her deposition that she

never understood Clubb to be a supervisor or even a manager.                               To

be sure, Liberto believed that Clubb, who had worked at the

Clarion    for       close     to     20     years        and   had   a    longstanding

relationship         with    Berger,       had    power     that   she,    a    brand-new

                                             73
employee, did not have.           But Liberto stated that she reported to

Heubeck and to a manager named Jamie Avery, and she was adamant

that she never thought of Clubb as her manager.                     Instead, her

“understanding of . . . Clubb was that she was basically a

friend of Dr. Berger’s that was there to greet people and just

to be a smiling face” -- in other words, that Clubb was merely a

“glorified hostess.”         Indeed, Liberto stated that she was “told

by everyone” that she should just “humor” Clubb and that Avery

specifically told her “not to go to [Clubb] because [Clubb] did

not   have   the     power   to    do   voids   or    make   decisions.”        She

explained that, although she listened to Clubb, she did so only

to the extent that she had “to be respectful and listen to

everyone     [she]     work[ed]      with.”          And   while    Clubb     would

occasionally ask Liberto or other employees to do tasks, Liberto

testified that “it was not a regular routine . . . [for Clubb

to] instruct[]” other employees and that Clubb did not correct

her work.

      Liberto testified that, soon after she had started working

at the Clarion, she felt as though Clubb had “singled [her] out”

and   had    threatened       to     take     advantage      of    her   personal

relationship with Berger to make trouble for Liberto.                       But the

incident central to this action occurred more than a month after

Liberto had been hired.



                                         74
     Late    on   the   night    of   September     14,    Liberto    was   serving

drinks when a customer ordered a “Hula Hula,” a cocktail that

was particularly time-consuming to make.                  When the bartender at

the restaurant’s primary bar refused to make the drink, Liberto

walked around to the Clarion’s “pub bar” to order the drink

there.      Once the drink was ready, Liberto passed through the

kitchen on her way back to the dining room, even though that was

a much longer route, so as to avoid the primary bartender who

refused to make the “Hula Hula.”                 As she did so, Clubb yelled

out to Liberto that she was not supposed to cut through the

kitchen, but Liberto did not hear Clubb.                  Clubb then approached

Liberto as she was preparing the customer’s check, yelling at

Liberto for ignoring her and calling Liberto “deaf.”                        Liberto

said that the distance between the two was close enough that she

could    “feel    [Clubb’s]     breath”    and    that    spittle    from   Clubb’s

mouth was hitting her.          Liberto shook her head and said “okay,”

but largely went about her work, which made Clubb more agitated.

As the episode concluded and Clubb was walking away, Clubb said

that she was “going to make [Liberto] sorry” and called Liberto

either a “damn or dang, porch monkey.”

     At the beginning of her shift on September 15, Liberto went

to Heubeck’s office to complain about Clubb’s conduct.                       During

the meeting, Clubb came in and said to Liberto, “I need to speak

to you, little girl.”         Liberto told Clubb that she was currently

                                          75
speaking with Heubeck, but Clubb responded that she was “more

important.”      Liberto and Clubb then sat down at a table outside

Heubeck’s      office,      and    Clubb     scolded      Liberto     for    “abandoning

[her] station” the previous night.                      As this meeting broke up,

Clubb said that “she was going to go to Dr. Berger” and “teach

[Liberto] a lesson.”              Using a raised voice, Clubb again called

Liberto a “porch monkey.”

      A   couple     of    days    later,        on   September   17,   2010,      Liberto

spoke by telephone with Nancy Berghauer, the Clarion’s Human

Resources Director, regarding Clubb.                    Berghauer made typewritten

notes     of   the   conversation          and    forwarded    them     to   Berger       and

Elman.     The next day, September 18, Elman met with Liberto to

discuss the situation and to ensure that Berghauer’s notes were

accurate.      That same day, Heubeck met with Clubb to discuss the

incident,      and     Clubb      denied    Liberto’s       allegations.           Heubeck

nonetheless issued Clubb a written warning.

      When, on September 17, Berger learned about the conflict

between Clubb and Liberto, he asked Heubeck to update him on

“exactly what was going on,” and he also asked about Liberto’s

job   performance.          Heubeck        reported     that   Liberto       had   so     far

performed poorly in every job to which she had been assigned.

The next afternoon, Berger met with Elman to review Liberto’s

work file and discovered that Liberto had failed the Clarion’s

bartending      test      “miserably.”           When   Berger    indicated        that   he

                                             76
thought the Clarion should terminate Liberto’s employment, Elman

and Berghauer indicated that doing so “could create a situation”

because of Liberto’s complaint.                  Berger replied that “there’s

not going to be any good time to let her go.                     The situation will

be there.”        After further consulting Heubeck, Berger made the

final decision to terminate Liberto’s employment, and Liberto

was notified of the decision on September 21.                         Clubb was not

involved in the decision, only learning of it a week later.

Berger acknowledged in his deposition that Liberto’s complaint

prompted him to take a look at her record, but he asserted that

his decision to fire her “had nothing to do with her complaint”

and was instead based solely on her poor performance.

     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.        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 by virtue of a hostile work

environment, 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   §    1981     (Count   IV).

Liberto     filed     her    Title        VII     claims        against     only     the

                                          77
Fontainebleau       Corporation,         trading       as     the        Clarion      Resort

Fontainebleau        Hotel,       but       named     both        the      Fontainebleau

Corporation and Berger as defendants in her § 1981 claims.

      Following     discovery,        the    defendants          filed    a    motion       for

summary    judgment.        Taking      Liberto’s      deposition          testimony         as

true, the district court held that the offensive conduct was too

isolated    to    support      Liberto’s      claims       for    discrimination            and

retaliation.       Accordingly, by order dated April 4, 2013, the

court entered judgment in favor of the defendants.                             This appeal

followed.


                                            II

      In   holding      that    the     district      court       erred       by    entering

summary judgment for the defendants on Liberto’s hostile work

environment      claims,    the    majority      extends         Title    VII       liability

beyond the statute’s textual scope and beyond what the Supreme

Court has recognized in construing the statute.

      The governing principles are well established.                               Title VII

makes it “an unlawful employment practice for an employer . . .

to   discriminate       against    any      individual       with       respect       to    his

compensation,      terms,      conditions,       or   privileges         of    employment,

because    of    such   individual’s        race,     color,       religion,         sex,    or

national origin.”          42 U.S.C. § 2000e-2(a)(1).                    “This provision

obviously   prohibits       discrimination          with    respect       to       employment


                                            78
decisions       that    have    direct       economic             consequences,         such       as

termination,      demotion,         and    pay     cuts.”           Vance    v.    Ball       State

Univ., 133 S. Ct. 2434, 2440 (2013).                          Since 1986, however, the

Supreme       Court    has    recognized         that    this        provision       “not      only

covers       ‘terms’    and    ‘conditions’             in    the     narrow       contractual

sense,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

78 (1998), but also forbids the “practice of creating a working

environment heavily charged with . . . discrimination,” Meritor,

477    U.S.    at 66    (quoting      Rogers,       454       F.2d    at    238);       see    also

Harris, 510 U.S. at 21 (1993) (“The phrase ‘terms, conditions,

or privileges of employment’ evinces a congressional intent to

strike at the entire spectrum of disparate treatment . . . in

employment,       which      includes       requiring             people    to    work        in   a

discriminatorily hostile or abusive environment” (citation and

some internal quotation marks omitted)).                           But in order to ensure

that    a     cause    of    action       based    on        an    alleged       hostile       work

environment      is    justified      by     the    statute’s          text,      the    Supreme

Court has emphasized time and time again that the underlying

harassment must be “so ‘severe or pervasive’ as to ‘alter the

conditions of [the victim’s] employment.’”                            Faragher, 524 U.S.

at     786    (alteration      in     original)          (emphasis          added)      (quoting

Meritor, 477 U.S. at 67); see also, e.g., Vance, 133 S. Ct.

at 2441 (“In [hostile work environment] cases, we have held, the

plaintiff must show that the work environment was so pervaded by

                                             79
discrimination that the terms and conditions of employment were

altered”); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752

(1998) (recognizing that only harassing conduct that is “severe

or pervasive” can effect a “constructive alteration[] in the

terms or conditions of employment” and thus become “cognizable

under    Title    VII”);      Oncale,    523      U.S.    at   81       (emphasizing        that

Title    VII’s     “prohibition      of      harassment        .    .     .    forbids      only

behavior so objectively offensive as to alter the ‘conditions’

of the victim’s employment”); Harris, 510 U.S. at 21 (“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 working environment, Title VII is violated” (citations

and internal quotation marks omitted)).

      This demanding standard thus requires more than “conduct

that is merely offensive.”                Harris, 510 U.S. at 21; see also

Oncale, 523 U.S. at 80 (noting that Title VII will not become “a

general civility code for the American workplace” so long as

courts    pay     “careful      attention         to     the   requirements            of   the

statute”).            Indeed,    the      Supreme         Court         has     specifically

recognized       that   the    “‘mere    utterance        of   an       ethnic    or    racial

epithet which engenders offensive feelings in an employee’ would

not   affect     the    conditions      of     employment          to    [a]    sufficiently

significant degree to violate Title VII.”                               Meritor, 477 U.S.

                                             80
at 67 (emphasis added) (quoting Rogers, 454 F.2d at 238); see

also Harris, 510 U.S. at 21.              Similarly, the Court has stressed

that “simple teasing, offhand comments, and isolated incidents

(unless      extremely     serious)     will    not     amount   to    discriminatory

changes in the ‘terms and conditions of employment.’”                          Faragher,

524   U.S.    at   788    (citation     and     some    internal      quotation      marks

omitted).       It should thus come as no surprise that the Court has

described the “very nature” of a hostile work environment claim

as “involv[ing] repeated conduct.”                 Morgan, 536 U.S. at 115; see

also id. (“The ‘unlawful employment practice’ [at issue in a

hostile work environment claim] . . . cannot be said to occur on

any particular day.          It occurs over a series of days or perhaps

years and, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own.                        Such claims are

based on the cumulative effect of individual acts.” (Citation

omitted)).

      Finally,      the    Court    has    emphasized        that     the     impact   of

offensive workplace conduct on an employee’s work environment

cannot be “measured in isolation.”                     Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 270 (2001) (per curiam).                       Instead, courts

must determine “whether an environment is sufficiently hostile

or    abusive      [to    support   a     claim]       by   ‘looking     at    all     the

circumstances,’ including the ‘frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

                                           81
humiliating,    or    a   mere    offensive    utterance;     and       whether    it

unreasonably interferes with an employee’s work performance.’”

Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).

      Under these controlling principles, Clubb’s alleged use of

the term “porch monkey” twice in less than 24 hours when talking

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

or pervasive as to produce a racially hostile work environment

that changed the terms and conditions of Liberto’s employment.

      There is no suggestion by the majority that the alleged

harassment was sufficiently pervasive to qualify -- nor could

there be.      As such, this case falls outside the heartland of

hostile work environment claims, the “very nature [of which]

involves repeated conduct.”           Morgan, 536 U.S. at 115.            Instead,

the   only   question     at   this   juncture      is   whether    a    jury    that

believed Liberto’s description of events could find that Clubb’s

conduct was so severe that it altered the terms and conditions

of Liberto’s employment by creating a work atmosphere that was

objectively racially hostile.          The answer is plainly no.                To be

sure, the term “porch monkey” is an odious racial epithet, and

any reasonable person in Liberto’s position would of course be

offended by its use.           But the “‘mere utterance of an ethnic or

racial epithet,’” which offends an employee, does not “affect

the   conditions     of   employment    to    [a]   sufficiently        significant

degree to violate Title VII.”           Meritor, 477 U.S. at 67 (quoting

                                       82
Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21.                              In

short,       Liberto   has     not   presented        evidence      from       which    a

reasonable jury 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 (citation omitted) (quoting Meritor, 477

U.S. at 65, 67).

       The     majority’s     conclusion    to    the    contrary      rests    on     two

distortions, one factual and one legal.                       First, the majority

brazenly distorts the facts contained in the summary judgment

record regarding Liberto’s understanding of Clubb’s role at the

Clarion.       The majority begins by stating that the current record

does     not    establish      “whether     Clubb       was   actually      Liberto’s

supervisor      or   simply    her   co-worker.”         Ante,    at   30   (emphasis

added).      But nonetheless it then proceeds to “deem Clubb to have

been   Liberto’s       supervisor”    for       the   purpose    of    “gauging        the

severity of Clubb’s conduct,” ante, at 32, on the theory that

Clubb portrayed herself as having the ability to get Liberto

fired by taking advantage of her friendship with Berger.                             From

this, the majority goes yet further and presumes that Liberto

must have believed that Clubb was effectively her supervisor,

thus lending a “particularly threatening character” to Clubb’s



                                           83
conduct.         Ante,     at    32    (quoting      Ellerth,       524    U.S.        at     763)

(internal quotation marks omitted).

      There        are,   however,      two    significant          problems       with       the

majority’s approach.              First, it is highly doubtful that Clubb,

who   may     have     wielded     influence       on    the     Clarion’s       owner      as    a

result      of     a    personal      relationship         but     who     lacked        direct

authority        to    take     tangible      employment         actions     or        even      to

recommend formally that such actions be taken, would qualify as

Liberto’s        supervisor.          Indeed,       the     Supreme       Court        recently

clarified what makes an employee a “supervisor” in the context

of hostile work environment claims, holding that the critical

consideration is whether “he or she is empowered by the employer

to take tangible employment actions against the victim.”                                 Vance,

133 S. Ct. at 2439 (emphasis added).                       In so holding, the Court

explained        that     this     definition           would     typically       allow          an

employee’s         supervisory        status       to     be     “readily        determined,

generally by written documentation.”                      Id. at 2443; see also id.

at 2449 (“The interpretation of the concept of a supervisor that

we adopt today is one that can be readily applied”).                               The Court

indicated that employees can still qualify as supervisors even

if    their      “decisions       [are]    subject         to     approval        by     higher

management.”           Id. at 2446 n.8.            It similarly noted that if the

individuals        vested     with    decisionmaking            power    “have    a     limited

ability       to       exercise       independent         discretion         when        making

                                              84
decisions” and must instead “rely on [the recommendations of]

other workers who actually interact with the affected employee”

then “the employer may be held to have effectively delegated the

power to take tangible employment actions to the employees on

whose     recommendations            [the     individual          formally       vested     with

decisionmaking authority] relies.”                         Id. at 2452.           But both of

those    situations      are    a     far     cry    from       an    employee     whose    only

influence      comes     from    having       the     ear       of   the    company’s      owner

because of their personal friendship.

     Moreover,        even     setting       that     issue       aside,     the   majority’s

assumption       that    Liberto        must        have    perceived        Clubb    as    her

supervisor       flies    in     the        face     of     Liberto’s       own    deposition

testimony       about    her    understanding              of     Clubb’s    place    in    the

Clarion’s      hierarchy.            When    asked        about      her   understanding      of

Clubb’s role, Liberto responded, “My understanding of Trud[i]

Clubb was that she was basically a friend of Dr. Berger’s that

was there to greet people and just to be a smiling face.”                                    She

added,    “I    was     told    by    everyone,           oh,   just,      you    know,    humor

[Clubb]. . . . [T]hat’s pretty much what everyone would say

about her.”           When pressed, she was adamant that she did not

understand Clubb to be a manager:

     Q.   Isn’t it true that you were told that [Clubb] was
     the restaurant manager?

     A.        Never.


                                               85
      Q.   Is it your -- is it your testimony that you did
      not know Trud[i] Clubb was the restaurant manager?

      A.      Absolutely that is my testimony.

      Q.   You never knew throughout your entire employment
      with the Clarion that she was a manager?

      A.   Never.   I reported to Jamie [Avery], 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
      [Heubeck].   And at the time [Clubb] did not hold any
      management cards or keys as Jamie did.

(Emphasis added).       And when asked whether she “thought [she] had

to   listen    to   [Clubb],”   Liberto’s   response   was   just   that   she

“ha[d] to be respectful and listen to everyone [she] work[ed]

with.” ∗

      The majority’s conclusion that we should “deem Clubb to

have been Liberto’s supervisor” for the purpose of “gauging the

severity of Clubb’s conduct” simply cannot be reconciled with

this testimony.        To the contrary, Liberto’s understanding of

      ∗
        In support of its dubious contention that Liberto
perceived Clubb to be in a position to have her employment
terminated, the majority points to a September 18, 2010 email
from Elman to Heubeck and Berghauer in which Elman recounted his
meeting earlier that day with Liberto. See ante, at 10. Elman
wrote that he had informed Liberto that Clubb was her “boss.”
But as the majority itself acknowledges, at this stage of the
case, we must accept the version of events Liberto recited in
her deposition testimony.   See ante, at 4 n.1.    And Liberto’s
testimony contradicts Elman’s apparent understanding of Clubb’s
relationship to Liberto.    Moreover, in light of the adamancy
with which Liberto testified that she “never” understood Clubb
to be a manager, we should not use Elman’s email to refute
Liberto’s clearly stated understanding.



                                     86
Clubb   as    a   “glorified          hostess”        who     everyone        “humor[ed]”

substantially     lessens           the     impact      that        Clubb’s       isolated

statements could have had on Liberto’s work environment.                                 See

ante, at 27 (“[A] supervisor’s use of [a racial epithet] impacts

the work environment far more severely than use by co-equals”

(second alteration in original) (quoting Rodgers v. Wis. Life

Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (internal quotation

marks omitted).

      In addition to relying on a blatant mischaracterization of

Liberto’s    understanding       of       Clubb’s     role    at    the   Clarion,       the

majority’s    conclusion       that       Liberto’s    hostile       work     environment

claims should reach a jury also rests on a faulty interpretation

of a handful of words from the Supreme Court.                       Specifically, the

majority     places   a   great        deal      of   emphasis       on     the     Court’s

observation in Faragher that “simple teasing, offhand comments,

and   isolated    incidents         (unless      extremely         serious)       will   not

amount to discriminatory changes in the ‘terms and conditions of

employment.’” 524 U.S. at 788 (emphasis added) (citation and

some internal quotation marks omitted).                      Indeed, the majority’s

holding,     distilled    to     its       essence,     rests       entirely       on    its

conclusion    that    this     is     “the    type     of    case     contemplated       in

Faragher where the harassment, though perhaps ‘isolated,’ can

properly be deemed to be ‘extremely serious.’”                       Ante, at 34.



                                            87
      But in Faragher, the Supreme Court referred to “incidents,”

524 U.S. at 788, not to a single incident.                                 And five years

later, the Court in Morgan confirmed that “repeated conduct” is

the   stuff    of     a    hostile     work       environment.            536    U.S.    at   115

(emphasis added).             Moreover, while the Faragher Court did not

elaborate on what it envisioned as the kind of extremely serious

isolated incidents that may produce a hostile work environment,

we know from Meritor and Harris that such incidents cannot be

the “mere utterance of an ethnic or racial epithet.”                                    Meritor,

477   U.S.    at 67        (quoting    Rogers,          454   F.2d    at    238)       (internal

quotation marks omitted).                As the Court has made clear, the

making of such a statement in the workplace, although highly

offensive,      “does       not     sufficiently          affect     the        conditions    of

employment to implicate Title VII.”                      Harris, 510 U.S. at 21.              It

is true that Clubb’s alleged conduct was reprehensible.                                  But it

involved no physical assault or threat of physical harm.                                  Cf. 3

Lex K. Larson, Employment Discrimination § 46.05[3][b], at 46-82

(2d   ed.     2012)       (noting     that    “a     single     incident          of    physical

assault       against         a      co-worker           that        is     motivated         by

[discriminatory]            animus     can        qualify      as    severe        enough     to

constitute      an        alteration    of        the    co-worker’s            conditions     of

employment”).         Moreover, even though the first encounter took

place in a crowded dining room, it appears that no one heard

Clubb     direct      the     epithet        at    Liberto      on        either       occasion,

                                              88
indicating that the name-calling was not publicly humiliating.

And again, Liberto thought that she was being upbraided by a co-

worker,       not         her    supervisor.              Taken        together,        these

considerations show that, as a matter of law, Clubb’s alleged

conduct     did     not    amount     to    the    “extremely      serious”        “isolated

incidents” that the Faragher Court envisioned as being capable

of    effecting       a    “discriminatory         change[]       in    the    ‘terms      and

conditions of [the plaintiff’s] employment.’”                      524 U.S. at 788.

       The majority acknowledges that this case marks the first

time that our court has concluded that a reasonable jury could

find the presence of a hostile work environment based on what

was,   at     most,       two   repeated     statements     relating          to   a   single

incident.         See      ante,    at     34.     What    the     majority        does    not

acknowledge, however, is that today’s decision makes our court

an outlier among the other courts of appeals.                            And instead of

being straightforward about that fact, the majority attempts to

bolster its conclusion with citations to the Eleventh Circuit’s

decision in Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th

Cir. 2014), and the D.C. Circuit’s decision in Ayissi-Etoh v.

Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013).                        See ante, at 33-34.

But    both    cases       involved      conduct    more    pervasive         and/or      more

severe than that alleged by Liberto here.

       In Adams, one of the plaintiffs alleged that his supervisor

carved the slur “porch monkeys” into the aluminum of the ship on

                                             89
which they were working, and the Eleventh Circuit observed that

that “isolated act” was “severe.”                      754 F.3d at 1254.             But the

same plaintiff also alleged that he “saw one coworker wear a

shirt with a Confederate flag”; that he “regularly saw racist

graffiti in the men’s restroom”; and that when he reported the

racist graffiti, his supervisor responded by saying that “it’s

always been like that and if [he] didn’t like it [he could]

quit.”         Id.   at       1253    (alterations          in     original)      (internal

quotation marks omitted).              It was based on the totality of these

allegations       that     the       Eleventh      Circuit        concluded      that     “the

harassment [the plaintiff] experienced was frequent and severe,”

such    that     “[a]    reasonable         jury    could     find    that       [his]   work

environment was objectively hostile.”                       Id. at 1253-54 (emphasis

added).

       Similarly,       the    harassment         in    Ayissi-Etoh        was    both    more

pervasive and more severe than the harassment at issue here.                               In

that case, the plaintiff -- an African-American senior financial

modeler -- asked his company’s Chief Audit Executive why he had

not received a raise in conjunction with a recent promotion.

712 F.3d at 574-75.            In response, the Executive told him, “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   (internal       quotation        marks       omitted).          Several      months

later, the plaintiff was discussing his work responsibilities

                                             90
with the company’s Vice President of Internal Audit when the

meeting “became heated” and the Vice President yelled at him,

“Get out of my office nigger.”                   Id.        Although the plaintiff

missed work and was diagnosed with an anxiety disorder, he was

forced to continue working with the Vice President during the

ensuing three-month investigation.                   Id.    Based on this evidence,

the D.C. Circuit held that the plaintiff was entitled to a jury

trial    on     his    hostile        work      environment          claim.                These

circumstances     in     Ayissi-Etoh      are    readily         distinguishable            from

those presented here.          First, as the court in Ayissi-Etoh noted,

the hostile work environment was precipitated not by a single

event,   but    rather    by   two    independent          statements          made    by    two

different      high-ranking       company            officials       who        were        both

indisputably     supervisors         of   the    plaintiff.              Id.    at    577-78.

Those statements ultimately led to psychological problems and

directly      caused   the     plaintiff        to    miss       work.         Id.    at 577.

Second, the racist comments were made during conversations about

the plaintiff’s pay and work assignments, thus increasing the

statements’ ability to “alter the conditions of the victim’s

employment.”      Harris, 510 U.S. at 21.                  By contrast, in the case

at hand, (1) there was only one incident involving one alleged

harasser;      (2) the     alleged        harasser         was     perceived          by    the

plaintiff to be a “glorified hostess” with no “power to . . .

make decisions”; and (3) although the alleged harasser denied

                                           91
making the offensive statement, the employer promptly issued her

a   written     reprimand,        warning      her    “to     be   cautious   [that]     the

language or phrases [that] she uses can not [sic] be perceived

as racist or derogatory.”

        For   the   reasons       given,    Clubb’s         alleged   use   of    the   term

“porch monkey” twice in less than 24 hours when talking about a

single incident was not, as a matter of law, sufficiently severe

or pervasive to create a racially hostile work environment that

altered the terms and conditions of Liberto’s employment.                                  I

would therefore affirm the district court’s summary judgment on

Liberto’s Title VII hostile work environment claim.

      For     the   same    reasons,       I    would       also   affirm   the   district

court’s summary judgment on Liberto’s hostile work environment

claim under 42 U.S.C. § 1981.                        See Spriggs v. Diamond Auto

Glass,    242    F.3d      179,    184   (4th        Cir.    2001)    (recognizing      that

hostile work environment claims under Title VII and § 1981 are

governed by the same principles).



                                               III

      If, as the majority holds, Clubb’s twice calling Liberto a

“porch monkey” in connection with a single workplace incident

was a practice made unlawful by Title VII, it would necessarily

follow that Liberto also stated a retaliation claim, for such a

claim    arises     when     an    employee         opposes    any    practice    made    an

                                               92
unlawful practice by Title VII and therefore is subjected to an

adverse employment action.                 See ante, at 36.      The majority could

have ended its retaliation claim analysis without saying more.

But it did not.        Instead, it gratuitously proceeded to adopt an

unprecedented       standard         for    retaliation       claims    that     is    much

broader than necessary to resolve Liberto’s claim.                        In doing so,

it also unnecessarily overruled part of our decision in Jordan

v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).


                                              A

       As to its new, broad standard for retaliation claims, the

majority moves far beyond the scope of any statutory language or

any    Supreme    Court        precedent     to    conclude    that,    even     when   an

employee     opposes       a     single      offensive    incident,       she    has    “a

reasonable belief that a hostile work environment is occurring”

whenever the incident is humiliating.                       Ante, at 43; see also

ante, at 44-45.        Applying that standard, the majority concludes

that because “‘porch monkey’ is a racial epithet that is not

just    humiliating,           but    ‘degrading      and      humiliating       in     the

extreme,’”       Liberto       was    necessarily      opposing     a    hostile       work

environment that was “in progress” when she brought the racial

slurs to management’s attention.                   Ante, at 45 (quoting Spriggs,

242 F.3d at 185).              Undoubtedly, this gratuitous and untenable

holding    will     generate         widespread      litigation        over     the    many


                                              93
offensive workplace comments made everyday that employees find

to be humiliating.

       Turning        to     the     statute,        as        we    must,     Title VII’s

antiretaliation provision makes it unlawful “for an employer to

discriminate      against      any    of     his    employees . . .          because       [the

employee] has opposed any practice made an unlawful employment

practice by [Title VII].”                  42 U.S.C. § 2000e-3(a).                 Read most

naturally, this provision provides protection from retaliation

to an employee who has opposed an employment practice that is

actually       unlawful      under    Title VII,          including      her       employer’s

maintenance of a racially hostile work environment.                            And reading

§ 2000e-3(a)’s         language       generously          to    give     effect      to    its

purpose, we have held that an employee also engages in protected

activity       when    she    opposes       an     employment        practice       that   she

reasonably believes to be unlawful, see EEOC v. Navy Fed. Credit

Union,    424    F.3d      397,    406-07        (4th   Cir.        2005),   although      the

Supreme       Court   has    not     yet    gone     so    far.        Specifically,        in

Breeden, 532 U.S. at 270, the Court declined “to rule on the

propriety of [the Ninth Circuit’s] interpretation” of § 2000e-

3(a)     as    “protect[ing]         employee       ‘oppos[ition]’           not    just     to

practices that are actually ‘made . . . unlawful’ by Title VII,

but also to practices that the employee could reasonably believe

were unlawful,” “because even assuming [that its interpretation]

is correct, no one could reasonably believe that the incident

                                             94
[at issue] violated Title VII.”                   Finally, we have gone one step

further,      recognizing          that     an    employee      is     protected         from

retaliation      if,    at    the    time    of    her   complaint,       she      had    “an

objectively reasonable belief in light of all the circumstances

that a Title VII violation has happened or is in progress.”

Jordan, 458 F.3d at 341 (emphasis added).

      Under     the    Jordan      standard,      when   an    employee’s       complaint

relates    to    another      employee’s         harassing     conduct,       we   do    not

require    the    harassment         to   have     already     risen    to    the    level

actionable under Title VII in order for her opposition activity

to   be   protected         from    retaliation.         But    when    the     offending

conduct has not risen to the level of a practice made unlawful

by Title VII, we also recognized that it would be inappropriate

to   “simply     assume,       without      more,    that      the   opposed       conduct

[would] continue or [would] be repeated unabated.”                           Jordan, 458

F.3d at 341.          Instead, we held that in this incipient stage, a

plaintiff must be able to point to evidence that “reasonably

supports the inference” that the conduct being objected to was

“likely to recur at a level sufficient to create a hostile work

environment.”         Id.     In other words, for an employee’s report of

objectionable conduct that has not yet become unlawful under

Title VII to qualify as protected activity, the employee must,

at the very least, have an objectively reasonable belief that a



                                             95
hostile work environment would result, “based on circumstances

that the employee observes and reasonably believes.”                        Id.

       Here, the majority adopts a standard far beyond that which

we recognized in Jordan and far beyond what any court of appeals

has recognized.             It holds that an employee’s single complaint

about a single incident, regardless of whether the incident is

actually         unlawful    under    Title     VII    or   whether        the    employee

reasonably believes that the incident is likely to recur, can be

the basis for a legitimate retaliation claim, so long as the

conduct is humiliating.              See ante, at 43-45.            This new standard

will surely generate many new questions about which offensive

workplace comments are objectively humiliating and lead to an

expansion of litigation far beyond Title VII’s design.

       I    would    conclude    in     this    case   that    the    district       court

correctly         entered     summary    judgment       for    the     defendants      on

Liberto’s retaliation claim because, as a matter of law, she did

not oppose activity that Title VII protects from retaliation

when       she    reported    Clubb’s     conduct      to     the    Clarion’s      Human

Resources Director.            In light of all the circumstances, Clubb’s

use of an offensive racial epithet twice in less than 24 hours

was    insufficiently          severe    to     give    Liberto       an    objectively

reasonable belief that she was complaining about the presence of

a racially hostile work environment, rather than simply about

another      employee’s      inappropriate       conduct.       Certainly,         Liberto

                                           96
could have reasonably concluded from Clubb’s demeaning statement

that Clubb herself was a racist.                       But the fact that a single

employee has revealed herself through an isolated incident to be

bigoted does not translate into an objectively reasonable belief

that    the    workplace         itself       has    become      abusive   to    employees

because of their race.              Cf. Butler v. Ala. Dep’t of Transp., 536

F.3d   1209,       1214    (11th       Cir.    2008)    (“[N]ot        every    act   by    an

employee in opposition to racial discrimination is protected.

The    opposition         must    be    directed       at   an    unlawful      employment

practice      of   an     employer,      not    an    act   of    discrimination       by    a

private individual” (emphasis added) (quoting Little v. United

Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.

1997)) (internal quotation marks omitted).

       Moreover, Clubb’s statements were, as a matter of law, too

isolated to give Liberto an objectively reasonable belief that

the offensive conduct was likely to ripen into a hostile work

environment.         Liberto has not identified any evidence in the

record   suggesting         that       workplace      racism      was   afoot    prior      to

Clubb’s statements, nor any evidence suggesting that she had

reason   to    believe       that      her    supervisors        and    co-workers    would

tolerate such conduct or permit it to recur.                               Indeed, after

Liberto reported the incident, the Clarion’s management promptly

issued a written reprimand to Clubb, warning her to be cautious

about her language.

                                               97
         While Liberto had every right to be offended by Clubb’s use

of   a    racial   epithet    and    acted    reasonably   and    responsibly   in

reporting the incident to Clarion’s Human Resources Director,

she lacked a reasonable belief, as required by the language of

Title VII, that she was opposing her employer’s commission of

“a[]       practice    made . . . unlawful . . . by              [Title    VII].”

42 U.S.C. § 2000e-3(a).          For that reason, I would conclude, as a

matter of law, that she did not engage in protected activity and

that     the   district      court   therefore     properly      entered   summary

judgment against her on her retaliation claims.


                                         B

         In addition to adopting a broad and unprecedented standard

for evaluating retaliation claims under Title VII, the majority

also gratuitously reverses a portion of Jordan in a manner by

which Judge King, the majority’s author, explicitly vindicates

his dissent in Jordan, notwithstanding his concession that this

case presents distinguishing circumstances.

         Notably, the majority does not overturn all of Jordan.                 It

in no way suggests, for example, that the isolated incident at

issue in that case was sufficiently severe to create a hostile

work environment.         Indeed, by “oberserv[ing] that the district

court improperly analogized this matter . . . to Jordan,” the

majority instead confirms that “a racist remark that was made by


                                         98
a mere co-worker and not aimed at [the plaintiff] or any other

employee” does not amount to a hostile work environment.                           Ante,

at 35.       Nor does the majority indicate that the plaintiff in

Jordan had a reasonable belief that a hostile work environment

was taking shape at the time he reported his co-worker’s racist

comment to his supervisors.           Rather, the only portion of Jordan

that the majority overrules is its already liberalizing rule

that    a    plaintiff    whose    retaliation        claim     is       based    on   an

objectively reasonable belief that a hostile work environment

was in progress, but not yet in existence, need only point to

some evidence indicating that such an environment was “likely to

occur.”      Jordan, 458 F.3d at 340;          see ante, at 38.

       The    majority    claims     that      this   aspect        of    Jordan       “is

incompatible      with    Crawford       [v.    Metropolitan         Government        of

Nashville & Davidson County, 555 U.S. 271, 279 (2009)], as well

as   other    Supreme    Court    decisions     directing      that       Title    VII’s

antiretaliation      provision      be    interpreted         ‘to    provide       broad

protection from retaliation.’”              Ante, at 41 (quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)).                               An

analysis of these cases, however, belies the notion that they

are in tension with Jordan or that, with these decisions, the

Supreme Court has given us license to provide employees with

“broad[er] protection from retaliation” than the text of the

statute justifies.

                                         99
       For    example,       Crawford         resolved        the     narrow     question        of

whether “an employee who speaks out about discrimination not on

her    own    initiative,          but    in        answering       questions         during    an

employer’s       internal         investigation”         has        opposed      an     unlawful

employment      practice      within          the    meaning     of    Title     VII’s        anti-

retaliation provision.              555 U.S. at 273.                In holding that such

an    employee       had    engaged      in     protected       activity,        the        Supreme

Court’s analysis focused on the “ordinary meaning” of the term

“oppose,”      leading      the     Court      to     conclude        --   as    a    matter     of

statutory interpretation -- that “[t]here is . . . no reason to

doubt that a person can ‘oppose’ by responding to someone else’s

question      just    as    surely       as    by    provoking       the    discussion,         and

nothing in the statute requires a freakish rule protecting an

employee who reports discrimination on her own initiative but

not one who reports the same discrimination in the same words

when her boss asks a question.”                     Id. at 276-78.          Cleary, nothing

in this holding is “incompatible” with Jordan.                             Ante, at 41.

       Similarly,      the    issue       in    Burlington          Northern     was        whether

“Title       VII’s    antiretaliation               provision       forbids          only    those

employer      actions       and     resulting         harms     that       are       related    to

employment or the workplace,” as does the statute’s substantive

antidiscrimination provision.                       548 U.S. at 61.              In answering

that     question      in    the     negative,          the     Court      emphasized          that

language       in     the     antidiscrimination                provision            “explicitly

                                               100
limit[s]    the      scope    of     that    provision    to    actions      that   affect

employment or alter the conditions of the workplace,” whereas

“[n]o    such        limiting        words    appear     in    the     antiretaliation

provision.”          Id. at 62.         The Court further reasoned that the

difference between the two provisions’ purposes confirms “that

Congress intended the differences that its language suggests.”

Id. at 63.        It was on this basis that the Court rejected the

view    that    it    would     be    “‘anomalous’       to    read    the    statute   to

provide broader protection for victims of retaliation than for

those whom Title VII primarily seeks to protect, namely, victims

of   race-based,        ethnic-based,         religion-based,         or     gender-based

discrimination.”         Id. at 66.            As such, despite the majority’s

suggestion to the contrary, Burlington Northern does not stand

for the proposition that courts must always adopt the broadest

possible construction of Title VII’s antiretaliation provision,

and it certainly does not authorize courts to afford plaintiffs

protection beyond what the statute itself provides.

       At a more general level, the majority faults the Jordan

standard as being at odds with “the hope and expectation that

employees will report harassment early, before it rises to the

level of a hostile work environment.”                    Ante, at 38.        Along these

lines, the majority suggests that, when combined with the early

reporting      “compelled       by    the    Ellerth/Faragher         defense,”     Jordan

places an employee who has experienced an isolated incident of

                                             101
harassment in an untenable position, leaving her vulnerable to

retaliation          if    she     reports          her   supervisor’s        conduct     and

insulating her employer from liability should she fail to report

it.    Ante, at 39.             The majority’s dilemma, however, is a false

one.      First,          the    Ellerth/Faragher         affirmative         defense    only

enables    an    employer          to     avoid       vicarious    liability       for    its

supervisor’s         creation      of     a    hostile     work    environment      if    the

employer can prove both that it “exercised reasonable care to

prevent and correct promptly any . . . harassing behavior, and

. . . that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise.”                            Ellerth, 524 U.S.

at 765 (emphasis added); see also Faragher, 524 U.S. at 807.                              It

is highly doubtful, however, that an employer would be able to

show   that     an    employee      acted       unreasonably       by   choosing    not    to

immediately report an isolated incident of workplace misconduct

that was not in itself sufficient to give rise to a reasonable

belief that a hostile work environment was in progress.                                   Cf.

Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 270 (4th

Cir.   2001)     (holding          that       the    employer     had    established      the

affirmative defense because, “[i]n light of th[e] long-term and

persistent harassment, [the plaintiff] cannot be excused from

failing to report [her supervisor’s conduct]” sooner (emphasis

added)).         Second,          the     majority        combines      the    qualitative

                                                102
requirement of objective reasonableness in reporting harassment

with    the    laches    concept        described    by    the    Supreme      Court    in

Faragher,      524    U.S.   at    807,    and     developed      by    this   court    in

Matvia, 259 F.3d at 270, in order to invent a fictitious Catch-

22.      In     actuality,    an    employee        only    risks       retaliation     by

reporting too early when there is insufficient conduct about

which to complain under Title VII, and she only risks dismissal

of her claim for reporting too late when she inordinately delays

coming forward.

       More to the point, however, it is not the role of this

court     to    incentivize       the     early     reporting      of     objectionable

conduct       where   Congress     itself     has    not    seen       fit   to   do   so.

Indeed, Congress could have written Title VII’s antiretaliation

provision to provide protection to every employee who reports

any offensive, racially or sexually charged workplace incident

that makes him or her uncomfortable.                       But it did not.             See,

e.g., Breeden, 532 U.S. at 269-71 (holding that an employee did

not    engage    in    protected        activity    when    she     complained     that,

during a meeting, her supervisor read aloud a sexually explicit

statement, which a job applicant had purportedly made, before

looking at her and stating, “I don’t know what that means,” and

then chuckling along with a male employee who offered to explain

the comment to him later).                Instead, Congress chose to protect

only employees who have “opposed any practice made an unlawful

                                           103
employment practice by [Title VII].”                       42 U.S.C. § 2000e-3(a).

We have already liberally interpreted this provision to protect

employees who possess an objectively reasonable belief that they

are complaining about a Title VII violation that has occurred or

is in progress, a standard that serves to protect employees in

close   cases.         But    we    cannot        simply   presume       that    a    single

incident     of    racially          charged           workplace     misconduct        will

inevitably      ripen        into     an     actual        racially       hostile       work

environment,       lest       our         interpretation           become       completely

untethered from Title VII’s text.                       Instead, a plaintiff whose

retaliation claim is based on an objectively reasonable belief

that she was opposing a hostile work environment that was in the

process of developing must be able to point to some evidence

that supports the inference that such an environment was “likely

to occur.”      Jordan, 458 F.3d at 340 (emphasis added).

      Instead     of     requiring          the     plaintiff       to    produce       such

evidence, the majority concludes that opposing an incident that

is humiliating, regardless of whether it could lead to a hostile

work environment, is protected.                   Ante, at 44-45.        Even a cursory

consideration      of    this       new    per     se    rule   quickly     reveals     its

problems.    An isolated incident of humiliating harassment is, of

course, more serious than “a mere offensive utterance.”                              Harris,

510 U.S. at 23.         But it is far from clear why a single incident

of   humiliating       harassment         that    is    insufficient      to    support   a

                                            104
reasonable belief that a hostile work environment had come into

existence would nonetheless give rise to a reasonable belief

that    a   hostile       work       environment        was    in   the       process       of

developing.         The majority must be assuming that, if a single

instance      of      humiliating          harassment         has       occurred,       then

objectionable        conduct      is   bound      to    be    repeated       at    a   level

sufficient to create a hostile work environment.                             But this, of

course,     does    not   follow.          And    I    can    anticipate      much     hand-

wringing     in    the    legal      community        when    determining         whether   a

particular        incident     qualifies      as      humiliating       or    whether       it

remains merely an offensive utterance.

       The majority’s position is also entirely pessimistic about

the ability and desire of employers to stop the progression from

isolated     utterances         of     racial         slurs    to   a     hostile       work

environment.          Indeed,        the   majority       manifests      a    fundamental

distrust of employers, assuming that, once a humiliating epithet

is uttered, the development of a hostile work environment is a

fait accompli -- in other words, that employers are powerless or

unwilling to prevent a descent into pervasive hostility.                                This

assumption, of course, finds no more support in Title VII or

Supreme Court precedent than it does in basic logic.                                What is

more, even the most conscientious employer will now be reluctant

to fire an objectively underperforming employee who has reported

a racial epithet that could be considered humiliating because,

                                            105
under   the     majority’s        standard,       that    employee     is       effectively

presumed to have reasonably believed that he was protesting an

unlawful employment practice when he made his complaint.                                This

presumption      is    at   odds    with    Title        VII,   the   Supreme        Court’s

jurisprudence,        and   the     fundamental      character        of    employers      in

America’s modern workplace.


                                            IV

       At bottom, I would conclude, as did the district court,

that    while     Clubb’s      comments         to   Liberto      were         unacceptably

offensive,      they    were       made    in     connection      with         an   isolated

incident, and therefore they were insufficient to demonstrate

the existence of a hostile work environment that altered the

terms   and     conditions     of    Liberto’s       employment.           I    would   also

conclude, as did the district court, that because Title VII’s

antiretaliation        provision          requires,       as    we    have          liberally

construed it, that an employee’s opposition must be to a hostile

work environment that she reasonably believed was in progress,

Liberto’s retaliation claims also fail.                    Thus, I would affirm.




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