TBA Law Blog

Posted by: Christy Gibson on Oct 28, 2014

By: Erik Fuqua[1]

Last June, the United States Supreme Court decided defined the term “supervisor” for the purposes of Title VII liability in Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). In the months since Vance was decided, the District Courts and Circuit Courts have had several opportunities to apply Vance, shedding light on the extent of Vance’s impact on employment litigation in the federal courts.

A. Vance itself

The issue in Vance was, “Who qualifies as a ‘supervisor’ in a case in which an employee asserts a Title VII claim for workplace harassment.” 133 S. Ct. at 2439. The Court explained the importance of the supervisor label as follows:

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

Id.Maetta Vance began working for Ball State University (BSU) in 1989 and continued working there throughout the time period at issue in the lawsuit. Id. In 2005 and 2006, Ms. Vance filed various internal complaints with BSU as well as charges with the Equal Employment Opportunity Commission (EEOC). Id. These complaints and charges alleged racial harassment and discrimination, and many of them pertained to interactions with Saundra Davis, a fellow BSU employee. Id. While the precise nature and scope of Davis’ duties was heavily disputed throughout the litigation, the parties agreed that “Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance.” Id. Vance then filed her lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming that she had been subjected to a racially hostile work environment in violation of Title VII. Id. at 2440. She alleged in her complaint that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment. Id. However, the District Court granted summary judgment for BSU, explaining that BSU could not be held vicariously liable for Davis’ alleged racial harassment because Davis could not “hire, fire, demote, promote, transfer, or discipline” Vance and therefore was not her supervisor for the purposes of Title VII. Id. The Seventh Circuit affirmed, holding that supervisor status requires the power to hire, fire, demote, promote, transfer, or discipline an employee. Id.

The Court noted the split of authority among the Circuit Courts as to the definition of the term “supervisor.” Courts such as the Seventh Circuit has held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. Id. at 2443. Other courts had taken a more open-ended approach by tying supervisor status to the ability to exercise significant direction over another’s daily work. Id. This more open-ended approach was the position advocated by the EEOC’s Enforcement Guidance. Id. The Court sided with the Seventh Circuit approach, holding that “an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.’ Id.

The Court stressed the ease with which the tangible employment action standard could be applied. It noted that this standard is “easily workable” and capable of being “applied without undue difficulty at both the summary judgment stage and at trial.” Id. It noted that the other standard would more frequently “frustrate judges and confound jurors.” Id. Writing for the majority, Justice Alito predicted,

Under the definition of “supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is relatively straightforward.

Id.at 2450. Finally, responding to the plaintiff’s argument that this standard would encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, the Court explained,

If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee…Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.

Id.at 2452. Thus, despite the narrow definition of supervisor given by the Court, this final “effectively delegated” argument has given some plaintiffs a handhold in cases where the bad actor does not necessarily fit the narrow supervisor definition.

B. Application of Vance to defeat supervisor liability

King v. North Carolina Dept. of Public Safety

King v. North Carolina Dept. of Public Safety has a helpful analysis of the application of Vance, and it lends credence to Justice Alito’s prediction that “the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.” In King, a former correctional officer claimed that she had been subjected to a hostile work environment due to the alleged sexual advances of a correction sergeant. See No. 5:12-CV-152-F, 2014 WL 69601, at *1 (E.D.N.C. Jan. 8, 2014). During the relevant time period, the plaintiff was assigned to the Operations Unit at the North Carolina Correctional Institution for Women (NCCIW). Id. at *5. As part of this unit, the plaintiff had an assigned shift time but rotated to various positions within the NCCIW based on the facility’s needs. Id. Plaintiff reported to two sergeants, who in turn reported to lieutenants. Id. The lieutenants reported to a captain, who in turn reported to an assistant superintendent. Id. One of these sergeants to whom the plaintiff reported was Correction Sergeant Gardner, the person to whom the plaintiff’s sexual advances allegations applied. Id.

In its Motion for Summary Judgment, the defendant challenged plaintiff’s claim that Sergeant Gardner’s alleged conduct was imputable to the defendant. Id. at *11. Whether the conduct was imputable to her employer was one of the elements the plaintiff had to prove to support her hostile work environment claim. Id. The court acknowledged that the standard under which an employer may be held liable in this situation depends on whether the alleged harasser was a supervisor or merely a co-worker. Id. The court began its analysis with this issue. Id. at *12. In doing so, it turned to Vance, noting that an employee is a supervisor, “only when the employer has empowered that employee to take tangible employment actions against the victim.” Id. (citing Vance, 133 S. Ct. at 2434).

The plaintiff put forth three pieces of evidence in support of her contention that Sergeant Gardner was her supervisor within the meaning of Title VII:

1. Warden Bianca Harris’ affidavit stating that the plaintiff was under the “partial supervision” of Gardner when she was working on the OPS unit;

2. An organization chart, attached to Harris’ affidavit, showing that correctional officers reported to sergeants; and

3. The defendant’s sexual harassment policy, which provides a “warning” to “supervisory level employees.”

Despite this evidence, the court concluded, as a matter of law, that Sergeant Gardner was not the plaintiff’s supervisor for the purposes of a Title VII harassment claim, noting that none of the plaintiff’s evidence showed that Sergeant Gardner was empowered by the defendant to take tangible employment actions against the plaintiff. Id. at *12.

With regard to Warden Harris’ affidavit, the court noted Vance’s clarification that an employer’s colloquial use of the term “supervisor” is not controlling for purposes of Title VII. Id. Nowhere in the affidavit did the Warden state that as part of being the plaintiff’s supervisor, Sergeant Gardner has the authority to hire, fire, promote, or reassign the plaintiff. Id. In fact, in her affidavit, the Warden specifically stated that while Gardner would be responsible for supervising the plaintiff’s “day-to-day activities when she was assigned to a post falling under his supervision,” he did not have “broader management responsibilities” with regards to her supervision “such as making her post assignments, shift assignments, issuing written warnings or other adverse employment action.” Id. With regard to the organization chart showing that correctional officers report to sergeants, the court explained that, at most, the chart suggests that Sergeant Gardner was responsible for merely supervising the plaintiff’s daily activities. Id. at 13. Finally, the “warning” in the defendant’s sexual harassment policy stated that

Any individual who is or reasonably appears to be in a position of workplace authority or control over another may be held to be a supervisor for purposes of determining liability for harassment or discrimination, (e.g. correctional sergeants over correctional officers).

Id.The court explained that this language was merely a summarization of the Fourth Circuit’s pre-Vance law as to who could be considered a supervisor under Title VII. Id. Therefore, the court determined that the warning did not constitute evidence as to what tangible employment actions, if any, Sergeant Gardner was empowered to take against the plaintiff. Id.

Nevertheless, while the court concluded, as a matter of law, that Sergeant Gardner was not the plaintiff’s supervisor within the meaning of Title VII, it denied the defendant’s Motion for Summary Judgment on the plaintiff’s Title VII hostile work environment claim on the grounds that the plaintiff had presented sufficient evidence under the co-worker standard to survive summary judgment. Id. at 14. Thus, while Vance did not dispose of the case entirely, it did allow the parties and the court to narrow the issues for trial. As a final note, the plaintiff’s evidence likely would have been sufficient to survive summary judgment under the Fourth Circuit’s pre-Vance case law and under the Vance dissent’s proposal of tying supervisor status to the ability to exercise significant direction over another’s daily work.

O’Connell v. Peppino’s Catering Co., LLC

O’Connell v. Peppino’s Catering Co., LLC is a helpful example of a case where a plaintiff has attempted to use the “effectively delegated” argument to survive summary judgment. In O’Connell, the plaintiff worked for Peppino’s in various capacities from January 2010 until May 2012. See No. 1:13–CV–384, 2014 WL 794657, at *1 (W.D. Mich. Feb. 27, 2014). In her complaint, the plaintiff alleged that on two occasions in January 2012, while she was working as catering coordinator, she was subjected to sexual harassment by Nick Marino, the Head Chef for Peppino’s Catering. Id. She further claimed that Marino was her immediate supervisor. Id. The plaintiff asserted numerous claims against the defendants, including claims for sexual harassment under Title VII and Michigan state law. Id.

In its Motion for Summary Judgment Defendant Peppino’s argued that it could not be held vicariously liable for any alleged harassment by Marino because Marino was not a supervisor. Id. at *5. Applying Vance, the court held that Marino was not empowered to take tangible employment actions against the plaintiff or to effect a significant change in her employment status. Id. at *6. Peppino’s presented evidence that Marino was merely a part-time consulting chef for its downtown restaurant and the catering company, that he reported to Peppino’s owner and director of operations, and that he did not have authority to fire employees. Id. at 5. Nevertheless, the plaintiff argued that Peppino’s effectively delegated the power to take tangible employment actions to Marino. Id. at 6. Specifically, the plaintiff argued that neither the owner nor the director of operations attended the catering events and that Marino was the head chef of the catering events. Id. She also argued that Marino had a history of making recommendations on hiring and firing that were followed by Peppino’s owner. Id. The court refused to find that Peppino’s had effectively delegated to Marino the power to take tangible employment action with respect to the plaintiff. Id. In so holding, the court found that the unrebutted evidence reflected that Peppino’s director of operations worked daily with the plaintiff at the office to discuss issues relating to food, volume, and invoicing for catering events  and that he received input on the plaintiff’s performance at catering events not only from Marino, but also from the catering clients. Id. The court explained that the evidence did not support a finding that Peppino’s had such limited interaction with the plaintiff that it had to rely on Marino and effectively delegate to Marino the power to take tangible employment action with respect to the plaintiff. Id.

Despite finding that Marino was not the plaintiff’s supervisor for the purposes of Title VII, the court allows the case to proceed in regards to co-worker liability, much like the court in King.

C. Cases where courts still recognized a fact question despite Vance

Lindquist v. Tanner

In Lindquist v. Tanner, the court held that a fact question remained as to an individual’s supervisory status despite the defendant’s arguing and labeling to the contrary. See No. 2:11–3181–RMG, 2013 WL 4441946, at *3 (D.S.C. Aug. 15, 2013). In Lindquist, the plaintiff sued her employer, the Charleston County Parks and Recreation Commission, and Ray Tanner, a Commission employee, asserting several state law causes of action and federal employment discrimination claims under Title VII. Id. at *1. The Commission filed a Motion for Summary Judgment arguing, among other things, that Tanner was not a supervisor under Title VII and relying on Vance. Id. at *2—3. Specifically, the Commission argued that Tanner was not the plaintiff’s direct supervisor under the Commission’s chain of command. Id. at *3.

In beginning its analysis, the court explained,

Though in Vance the Supreme Court did reject a “more open-ended approach…which ties supervisor status to the ability to exercise significant direction over another's daily work,” it nonetheless recognized that supervisor status is not conferred solely by formal designations but, rather, can also come about where an alleged harasser amounts to a de facto supervisor based on the “tangible actions” that individual has in fact been empowered by the employer to take “against the victim.”

Id.In recognized that a fact question existed as to Tanner’s supervisory status, the court pointed to the following facts: (1) when it came to hiring for the position ultimately filled by Plaintiff, it was Tanner who actively sought Plaintiff's name because he thought she might be a good fit for the job, (2) statements from multiple sources that Tanner said he “owned” the plaintiff, where one listener interpreted this statement to mean that Tanner would decide whether the plaintiff would go full time or not work out, and (3) Tanner was the most senior employee on-site, and could therefore at times direct the plaintiff’s work activities even though she technically fell under the supervision of an off-site employee. Id. at *4. From these facts, the court concluded that it would be reasonable to infer that Tanner would have had significant, possibly determinative, say over the plaintiff’s performance reviews, hours, and potential for promotion. Id. Although the court recognized that these facts were not conclusive as to Tanner’s supervisory status, it found that these facts render reasonable a finding that Tanner was delegated authority allowing him to make effectively determinative decisions with respect to Plaintiff’s hiring, promotion and discipline, and firing. Id.

Terry v. Laurel Oaks Behavioral Health Center, Inc.

In Terry v. Laurel Oaks Behavioral Health Center, Inc., the court needed very little to find the existence of a fact question as to an individual’s supervisory status. Among other claims, the plaintiff in Terry alleged that she was subjected to a sexually hostile work environment in violation of Title VII. No. 1:12–CV–905–WKW, 2014 WL 805477, at *1 (M.D. Ala. Feb. 28, 2014). The plaintiff worked for the defendant as a mental health technician for several years beginning in February 2004. Id. at *2. She transferred to the DYS unit in March or April 2010 and alleged that her new unit director, Mr. Robinson, began sexually harassing her a few months into her transfer. Id.

On Motion for Summary Judgment, the defendant disputed that the unit director was the plaintiff’s supervisor within the meaning of Title VII. Despite Mr. Robinson’s title of unit director, the defendant argued that there was no dispute that he could not hire, fire, fail to promote, or reassign significantly different responsibilities to or make decisions causing a significant change in benefits to employees. Id. at *10. While the defendant admitted that Mr. Robinson issued a counseling form to the plaintiff as a disciplinary action, it presented evidence that Mr. Robinson and all unit directors had to consult with the human resources department prior to taking disciplinary actions against an employee. Id. On the other hand, the plaintiff offered little analysis and merely argued that it was undisputed that she was harassed by her supervisor. Id. Despite the lack of evidence or analysis presented by the plaintiff as to Mr. Robinson’s supervisory status, the court found significant weight in the Position Description of a DYS Unit Director signed by Mr. Robinson and took issue with the defendant’s failure to offer an explanation as to the language of the job description. Id. at *11. Specifically, the position description included in the enumeration of a unit director’s duties that he or she will “conduct interviews, hire, terminate and coordinate corrective action processes.” Id. The court found that this job description contradicted the defendant’s evidence that unit directors have no authority in personnel matters such as hiring and firing and held that it was sufficient evidence to create a genuine dispute of material fact as to whether Mr. Robinson qualified as a Title VII supervisor. Id. While the court granted the defendant summary judgment on other grounds, Terry helps shed light on the types of evidence courts will find important in conducting the Vance analysis.

[1] Mr. Fuqua was an associate at Baton Nolan PLC in Clarksville, Tennessee in the litigation practice group. He has recently been accepted to the United States Air Force JAG Corps.