IBM Racial Epithet Case Comes Out Same Way on Rehearing

A little while ago, I cheered the fact that it appeared that the Fourth Circuit Court of Appeals had vacated its original opinion finding that a black employee's reporting of an egregious racial epthitet to his supervisor (related to the DC Sniper shootings) did not constitute protected activity for purposes of the retaliation provisions of Title VII.  (Here's David Schraub at the Debate Link describing the original decision in the case in all of its inaneness in more detail).

My prognostications were dead wrong.  Yesterday, the Fourth Circuit reissued its opinion in Jordan v. Alternative Resources Corp., No. 05-1485 (4th Cir., Aug. 14, 2006) (on rehearing), and again found that the employee was not protected in reporting the offensive conduct.

Rather than rehashing the arguments of the majority and the dissent which were largely discussed in past posts (here and here), here is the dissenting judge in the rehearing opinion explaining the little that had changed between this decision and the previously vacated decision (from footnote 1 of the dissent):

By order of July 5, 2006, we unanimously granted panel rehearing, thereby vacating the panel majority’s earlier decision, which had affirmed the district court’s dismissal order, see Jordan v. Alternative Res. Corp., 447 F.3d 324 (4th Cir. 2006), and from which I had dissented, see id. at 336 (King, J., dissenting). By its decision today, the majority has again affirmed the district court’s dismissal order. In so doing, it has rewritten its earlier opinion to reduce the importance of the snipers’ capture in its discussion of Jordan’s Title VII claim (although the capture remains prominent in the majority’s analysis of that claim), and in an endeavor to further explain its decision concerning Jordan’s § 1981 discrimination claim, which had previously been relegated to two conclusory sentences, see id. at 334 (majority opinion). In these circumstances, I am disappointed that our panel rehearing has merely prolonged the decisional process, without altering the result reached.

To reiterate my view I have stated previously, this decision is just plain wrong as far as what should count as protected activity for retaliation purposes.  Here's hoping that a rehearing en banc will clean up this jurisprudential train wreck.

Hat Tip:  How Appealing

PS