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In The Fourth Circuit, Context Matters in Title VII Retaliation Claims

Published by on August 15, 2018

In Savage v. Maryland, the Court held that no reasonable employee could have believed a Title VII violation occurred in a workplace meeting due to the context surrounding the offensive comments.

A former African American police officer in Pocomoke City in Worcester County sued the State of Maryland and the State attorney for creating a hostile work environment and retaliating against him for complaining about the offensive remarks. Savage v. Maryland, No. 17-1636, WL 3398220 (4th Cir. July 13, 2018). Savage also alleged the State of Maryland, as the attorney’s employer, was vicariously liable for retaliation under Title VII. Id. at 1. The Fourth Circuit agreed with the district court regarding prosecutorial immunity barring Savage’s claim against the State attorney, but disagreed with Savage’s retaliation claim against Maryland because “no reasonable employee could believe” that the State attorney violated Title VII based on the context of the conduct. Id.

The dispute in Savage v. Maryland centered on interactions between Savage and the State attorney for Worcester County, Beau Oglesby. Id. During a meeting to prepare for a case where Savage was the arresting officer, the State attorney read letters written by criminal suspects, including repeated usage of a racial epithet toward African Americans. Id. Savage filed two written complaints with the Equal Employment Opportunity Commission and the Maryland Attorney Grievance Commission. Id. Both Commissions objected to the State attorney’s repeated reading of the racial slur during the meeting. Id. Since filing the complaint, Savage alleged to have difficulty getting his cases prosecuted. Id.

The alleged retaliation was largely based on the State attorney’s letter to the Pocomoke City Mayor and City Council stating his concerns regarding Savage’s “veracity” and that Savage would not be allowed to testify in court, which Savage argued “directly interfered” with his ability to perform the essential duties of his job. Id. at 2. The State attorney also had a conversation with the Pocomoke City Manager expressing his opinion that Savage should be fired and the Pocomoke City Police Department terminated Savage ten days following their conversation. Id. Savage claims that Maryland should be held liable under a “third party retaliatory interference” theory, for interfering with his employment relationship based on the State attorney’s retaliation. Id. at 9.

To state a prima facie Title VII retaliation claim, an employee must establish that (1) he or she was engaged in a protected activity, that (2) his or her employer took an adverse employment action against the employee, and that (3) a causal link exists between those two events. Id. (citing Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015). First, the Fourth Circuit affirmed the district court’s findings that the State attorney was acting within the scope of his advocacy role protected by prosecutorial immunity. Id. at 4. However, the court concluded that “even assuming the State could be liable to Savage under Title VII’s anti-retaliation provision for State attorney’s conduct,” Savage failed to establish a valid Title VII claim based on the State attorney’s conduct. Id. at 9.

The Court focused primarily on the first element of whether an employee has engaged in a protected activity by opposing employment actions that are “actually unlawful under Title VII” or “employment actions he or she reasonably believes to be unlawful.” Id. The State argued, and Fourth Circuit agreed, that the State attorney’s conduct in the preparation meeting was not unlawful and Savage could not have reasonably believed that the conduct was unlawful. Id.

The Fourth Circuit compared this case to the Supreme Court case Clark County School District v. Breeden, where no reasonable person could have believed that a Title VII violation occurred in a workplace meeting where a “supervisor, in the course of reviewing job candidates’ psychological evaluation reports, read aloud sexually explicit material from one of those reports in front of a female employee.” Id. at 10. There, the Supreme Court concluded that “review of and exposure to the reports—-including the offensive portions—-was part of the ‘ordinary terms and conditions’ of the plaintiff’s job,” which would could not reasonably be construed as unlawful. Id.

The Fourth Circuit highlighted the importance of context when determining whether the use of a racial epithet created a hostile work environment in violation of Title VII. Id. The court noted that even a single incident of an offensive epithet directed at an employee might be severe enough to constitute a Title VII claim. Id. Similarly, an employer’s repeated use of a racial slur targeting African American employees or customers would likely be sufficient to establish a hostile work environment claim. Id.

In Savage, the State attorney was not aiming the racial slurs or providing editorial comments, but merely reading aloud letters written by criminal suspects in preparation for trial. Id. Based on the particular context surrounding the incident, without additional evidence, an employee could not reasonably infer that a racially hostile work environment was created in violation of Title VII, and therefore, was not engaging in protected activity. Id.

Welter Insight

Although Savage involves a public employee, its implications affect employers in the private sector covered under Title VII. In the event an employer or employee uses offensive or exhibits offensive conduct that would violate Title VII at first glance, context can mitigate an employer’s potential liability. If the offensive language is said as part of the employer’s or employee’s job duties, and not directed at a particular employee or customer base, a reasonable person would not believe a Title VII claim has occurred, and the claim would be invalid.

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