Courts Define One Comment as Hostile Environment
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 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 Resort. 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,” 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 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.” Clubb then concluded her threat by turning to look at Liberto and calling her either a “damn porch monkey” or a “dang porch monkey.”
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.” Liberto responded that she was meeting with Heubeck, but Clubb retorted, “I’m more important,” prompting Liberto to follow Clubb out of the office. 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.” Her voice still loud and angry though somewhat lower than before, Clubb capped the threat by looking directly at Liberto and again calling her a “porch monkey” again.
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. The Human Resources manager provided the summary on September 17 to the owner (Dr. Berger) and the General Manager.
The General Manager met with Liberto on September 18th to further discuss her complaint. Meanwhile, although Clubb denied ever using the term “porch monkey,” the Food and Beverage Manager (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.”
According to Dr. Berger, Liberto’s racial harassment complaint of September 17, 2010, prompted him to go to the Food and Beverage Manager that day and ask — for the first time ever— about Liberto’s performance. In the owner’s account, The Food and Beverage Manager gave a negative evaluation of Liberto and attributed her variety of job assignments to failure in every role she tried; thus, after further consulting the General Manager and Human Resources, between September 18 and 20, the owner (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 the owner’s (Dr. Berger’s) friend and she was just there to say hello and greet people as a glorified hostess.” Liberto did not know that Clubb held a manager title and did not consider Clubb to be her manager. (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. (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 she said and wouldn’t believe me.” Clubb’s conduct led Liberto to understand that Clubb “did have power that I did not have.” Consistent with that perception, the Food and Beverage Manager informed Liberto during their September 18, 2010 meeting that Clubb was Liberto’s “boss.”