Five judges of the 4th U.S. Circuit Court of Appeals –- including one of the two African Americans serving on the court –- have denied another shot at justice to a black man who was fired from his job at IBM after complaining about a co-worker's racist remark.

Robert Jordan had petitioned the court for rehearing en banc of a 2-1 panel opinion that affirmed summary dismissal of his retaliation case against IBM. But he fell short of the required majority as the court split 5-5 on whether to grant petition.

Allyson Duncan, the first black woman to serve on the 4th Circuit and a supposedly “moderate” George W. Bush appointee, joined four white judges in voting to deny further review. The court's other black judge, Roger L. Gregory, sided with Jordan.

“I urge the Supreme Court to accord serious consideration to any petition for certiorari that Jordan may file,” Judge Robert B. King said in dissenting from the order denying rehearing.

Jordan claimed IBM fired him in retaliation for reporting co-worker Jay Farjah's reaction to a news report about the capture of the Washington, D.C.-area snipers in October 2002. Farjah allegedly said, "They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them."

Had Jordan not reported the comment, he argued, Farjah's conduct "would at some point have ripened into [a] racially hostile work environment." Title VII of the Civil Rights Act prohibits discrimination against an employee who opposes a practice that is illegal under Title VII.

The author of the panel majority opinion, Judge Paul V. Niemeyer, minimized the importance of the case in supporting the denial of rehearing. “We have simply held that complaining about an isolated racial slur is not opposition protected by Title VII,” he said.

But as King notes, there was more to the case than that since Jordan had also learned from other co-workers that Farjah “had made similar offensive comments many times before.”

“[T]he panel majority has concluded that, when an employee complies with [Supreme Court precedent] in promptly reporting racially charged conduct, he is stripped of his protection from retaliation under Title VII,” King lamented.

All three judges on the panel were white and King, the dissenter to the majority decision, commented that they were "scarcely qualified to comprehend the impact [Farjah's] remark would have on the reasonable African-American listener."

Judge Duncan, apparently, wasn't qualified to comprehend it either.

By Matthew Heller
10/16/06