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Ability to assign hours enough for ‘supervisor’ status under Vance

By Lorene D. Park, J.D.

Vacating summary judgment, the Third Circuit found triable issues on whether a custodial foreman was a “supervisor” such that the Atlantic City Board of Education could be liable under Title VII and state law for his alleged sexual harassment of a substitute custodian. The appeals court noted that he was empowered to determine whether she worked at New York Avenue School, which had a direct impact on her pay, and the record revealed that no one else provided supervision when she was at that school. There was also a triable question on whether the Board could rely on the Ellerth/Faragher defense. Judge Rendell dissented in part, concluding that the foreman had no power to hire, fire, demote, or otherwise take tangible employment actions with respect to the employee, and could not preclude her from working at any of the Board’s other schools, so was not her supervisor under the Supreme Court’s ruling in Vance v. Ball State University (Moody v. Atlantic City Board of Education, September 6, 2017, Shwartz, P.).

Hired as a substitute custodian in November 2011, the employee was not guaranteed any work. During the 2011-12 school year, she was rarely scheduled, and she asked a Board employee how to obtain more work. It was suggested that she introduce herself to the custodial foreman, who had the authority to select which substitute custodians worked at a given school. She introduced herself to 10 foremen at different schools, including the foreman at New York Avenue School. By October 2012, he was assigning her regular work, and by the end of that month, he was allegedly making sexual comments to the employee. She claimed he told her he would assign her more hours if she performed sexual favors for him. He also allegedly grabbed her breasts or buttocks; tried to remove her shirt; and called her into his office when he was not clothed.

Allegedly pressured into sex. On December 27, the foreman allegedly came to the employee’s house and told her that she would get an employment contract if she had sex with him. She claimed that he grabbed her and kissed her and, feeling that her job was being threatened, she gave into his unwelcome advances and had sex with him. Thereafter, she told him that it would never happen again. Despite this rebuke, she received assignments for several days in January, though she believed the foreman was treating her differently. She also noticed that a new female substitute custodian was receiving hours instead of her. A coworker told the employee she was on the foreman’s “shit list.” She texted the supervisor about this, saying “Just making sure Im not on ya so call ‘shit list’” and he responded “U are but not like that I won’t stop u from getting I don’t play games like that.” Nonetheless, the employee believed he reduced her hours and delayed retrieving her paycheck because she had rejected his sexual advances.

Investigations, lawsuit. On February 4, 2013, the employee told the Board’s Assistant Superintendent that the foreman had been sexually harassing her. The employee was taken to human resources to file a complaint and HR began an investigation, interviewing several custodians but failing to reach a conclusion on whether there had been sexual harassment. After she filed an EEOC charge, the Board hired an outside law firm to investigate. The firm ultimately found that the employee was not subjected to sexual harassment or discrimination.

The employee then filed suit under Title VII and the New Jersey Law Against Discrimination. Granting summary judgment against her sexual harassment and retaliation claims, the district court found that the foreman was not the employee’s “supervisor” so the Board was not liable. It also found that, in any event, she had not suffered a tangible employment action and the Board had taken prompt remedial action under the Ellerth/Faragher defense.

Foreman was “supervisor.” Vacating and remanding, the Third Circuit first concluded that the alleged conduct supported the employee’s claim that the foreman’s actions were because of her sex and were severe or pervasive enough to create a hostile work environment. Although he denied the allegations, the facts had to be viewed in the employee’s favor. Next, the court addressed whether the Board could be liable for his conduct. Parting ways with the court below, the appeals court held that under Vance, the foreman could be considered the employee’s “supervisor.” A supervisor for purposes of Title VII liability is one “empowered by the employer to take tangible employment actions” and a “tangible employment action” is a “significant change in employment status.”

Here, there was no dispute that the foreman who allegedly harassed the employee had authority to decide whether to summon her to work at the New York Avenue School, because the Board gave him that authority. Indeed, a Board staffer suggested the employee introduce herself to custodial foremen as a means to obtain assignments. Assigning work is a “tangible employment action” because it is a decision that can inflict “direct economic harm” by causing a significant change in benefits, explained the appeals court. Given the foreman’s power to allow the employee to work, he could set her hours and affect her pay. Moreover, he could avoid calling her to work if he chose, and he did so on multiple occasions when a substitute custodian was needed. This power to impact her earnings qualified the foreman as a “supervisor.” Furthermore, the Board conceded that he served in a supervisory role and the record identified no other person who was present on the school premises who served in that role with respect to the employee.

Triable issues on Ellerth/Faragher defense. Summary judgment was also vacated as to the Board’s alternate argument that, even if the foreman was the employee’s “supervisor,” it was not liable under the Ellerth/Faragher defense. (The appeals court noted that the Board did not explicitly assert the defense, but its claim that it acted with “reasonable care” and the employee failed to “mitigate” her damages was good enough.) The Ellerth/Faragher defense is only available if the plaintiff did not experience a “tangible employment action.” Here, there was a question of fact on whether the foreman actually reduced the employee’s hours. Her pay records indicated she received about the same number of hours the month after she rejected him as she did the month before; however, viewing the records over the course of three pay periods, she worked more hours before she rejected his advances. Essentially, a jury could go either way and summary judgment was not appropriate on the hostile work environment claim.

Retaliation claim also revived. With respect to the employee’s retaliation claim, the Board conceded she engaged in protected activity but argued that she could not show a materially adverse action or causation. Disagreeing, the appeals court again pointed to the question of fact in terms of whether she experienced a drop in assigned hours immediately after complaining of harassment, and the temporal proximity was “unduly suggestive” of a causal link.

Dissent. Judge Rendell dissented in part, concluding that the majority failed to apply the unambiguous test in Vance. The dissent would have concluded that the foreman was not the employee’s supervisor under Vance because he could not hire, fire, promote, or demote the employee. Nor could he reassign her significantly different responsibilities or make a decision that would cause a significant change in her benefits. Though the majority focused on the foreman’s ability to assign the employee hours at his school, the dissent pointed out that there were other schools and he had no control whatsoever over her ability to work at one of those.