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A controversial employment discrimination case has split the conservative 4th U.S. Circuit Court of Appeals, with a 5-5 vote to deny reconsideration of an earlier opinion, effectively blocking full-court review. This action drew a call for U.S. Supreme Court appeal by the five judges on the losing side, in Jordan v. Alternative Resources Corp., No. 05-1485. The racially charged Oct. 13 decision upheld dismissal of the retaliation suit by an African-American who said he was fired in 2002 for reporting a co-worker’s reference to the notorious Washington-area snipers as “black monkeys” who should be jailed with other “black apes.” The original 2-1 panel decision in June found that fired employee Robert L. Jordan had no protection for the alleged retaliation because he could not reasonably believe that the single comment directed to a television news show, not Jordan personally, had created a hostile work environment. The panel drew so narrow a distinction between protected and unprotected reporting of hostile comments by co-workers that the Equal Employment Opportunity Commission stepped in to ask the full 4th Circuit to reconsider. Although circuit courts don’t generally disclose vote counts in requests to grant en banc reconsideration of panel opinions, in this case each side wrote its own opinion and named the concurring voters. The court rules require a majority to grant review, thus a 5-5 tie would leave the original panel decision in place. In dissent, Judge Robert King, who also dissented in the original panel, expressed “my profound disappointment with our court’s decision.” He added that Jordan’s claims have “substantial merit” and “warrant serious consideration by the Supreme Court.” Joining King were judges William W. Wilkins Jr., M. Blane Michael, William B. Traxler Jr. and Roger Gregory, the first African-American judge on the 4th Circuit, appointed in 2001. Gregory was installed by President Bill Clinton in a recess appointment in 2000 after four prior attempts to appoint an African-American judge to the circuit were blocked by Senator Jesse Helms, R-N.C. President George W. Bush nominated Gregory to a permanent place on the court in 2001. The only other African-American judge on the court, Allyson Duncan, appointed by Bush in 2003, took the opposite position, joining those denying reconsideration. Judge Paul Niemeyer said for the prevailing position that while the ruling does not condone the “contemptible comment,” Jordan was seeking to extend civil rights protection to cover “potential violations.” The panel decision, also written by Niemeyer, was unwilling to expand Title VII of the Civil Rights Act of 1964 to “create a national workplace civility code.” Joining Niemeyer were judges H. Emory Widener Jr., J. Harvie Wilkinson III, Dennis Shedd and Duncan.”This is a fairly typical breakdown in en banc calls,” said Carl Tobias, professor at the University of Richmond School of Law. Two active judges recused themselves and did not participate in the vote, Diana Motz and Karen Williams. The court also have three vacancies, which would bring its number of judicial positions to 15.

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