May 13, 2014 4th Circuit published opinions

Boyer-Liberto v Fontainebleau Corporation

Liberto sued corporation for race discrimination and retaliation based on two incidents of racial slurs by a coworker. The district court excluded certain interrogatory answers by Liberto and granted summary judgment to Corporation. The panel affirmed 3-0 as to discrimination and 2-1 as to retaliation. The panel first held that the answers were properly excluded from the summary judgment record because they were not made upon Liberto’s personal knowledge. The panel held that two slurs in two days was simply insufficient as a matter of law to meet the standard for a hostile work environment. The majority also held that the slurs were insufficient to trigger a retaliation claim as Liberto had no objective basis to fear that the slurs or any other discriminatory behavior would continue. Judge Shedd added a separate concurrence noting that summary judgment was correct under 4th Circuit precedent. Chief Judge Traxler dissented as to retaliation arguing that a jury should decide if the slurs coupled with the coworkers relationship with the owner of the hotel provided a reasonable basis to believe discrimination had occurred.

CoreTel Virginia, LLC v Verizon Virginia, LLC

CoreTel sued Verizon seeking declaratory judgment as to its obligations under an interconnection agreement under 47 USC 251. The district court granted summary judgment to Verizon on all issues. The panel, with one judge dissenting in part, affirmed in part, reversed in part and remanded. The majority reversed judgment on the matter of entrance facilities holding the plain language of the agreement requires Verizon to allow the use of rented facilities at the cost based rates set out in the agreement and this provision is unaffected by changes in the regulatory implementation of 251. This claim was remanded for further proceedings. The panel affirmed as to the denial of facilities charges by CoreTel as the facilities billed for were entirely within the CoreTel’s offices and did not provide any connection between CoreTel and Verizon. The panel afifiemd judgment as to CoreTel’s records demand holding the agreement did not impose a requirement on Verizon to provide call origination information to CoreTel. The panel finally held that CoreTel’s hardware did not meet the definition of “switched access service” as it used the public internet to deliver calls to its customers instead of Verizon’s network. The partial dissent argued that the agreement clearly did not require Verizon to provide the facilities at the cost based rates in the agreement as those rates were only for unbundled services and CoreTel never asked for any such services. It also argued that CoreTel could have bargained for the cost based rates but did not do so and accused the majority of rewriting the contract in CoreTel’s favor.

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