Michelle Moody v. Atlantic City Board of Educati

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-4373

______________

MICHELLE MOODY,

Appellant

v.

ATLANTIC CITY BOARD OF EDUCATION

______________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-14-cv-04912)

District Judge: Hon. Joseph H. Rodriguez

______________

Argued July 12, 2017

______________

Before: GREENAWAY, JR., SHWARTZ, and RENDELL,

Circuit Judges.

(Filed: September 6, 2017)

Samuel A. Dion, Esq. [ARGUED]

Dion & Goldberger

1845 Walnut Street

Suite 1199

Philadelphia, PA 19103

Counsel for Appellant

Rachel M. Conte, Esq. [ARGUED]

Tracy L. Riley, Esq.

Law Offices of Riley and Riley

100 High Street

Suite 302

Mount Holly, NJ 08060

Counsel for Appellee

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OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Michelle Moody sued the Atlantic City Board of

Education (“Board”) for sexual harassment and retaliation

pursuant to Title VII, 42 U.S.C. §§ 2000e-2(a)(1), 3(a), and the

New Jersey Law Against Discrimination (“NJLAD”), N.J.

Stat. Ann. §§ 10:5-12(a), (d). The District Court granted

summary judgment to the Board, finding that the alleged

harasser, Maurice Marshall, was not Moody’s supervisor.

Because Marshall was empowered to determine whether

Moody worked at New York Avenue School, which had a

direct impact on her pay, and the record reveals no one else

provided supervision, the District Court erred in concluding

Marshall was not her supervisor. In addition, because there are

2

disputed facts concerning whether Moody sustained a tangible

employment action, and because the Board’s defense rests in

part on the resolution of this issue, the District Court

prematurely considered the availability of the Ellerth/Faragher

defense. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Therefore, we will vacate and remand.

I1

In November 2011, the Board approved Moody’s hiring

as a substitute custodian. As a substitute custodian, Moody

filled in for full-time custodians but was not guaranteed any

work. During the 2011-2012 school year, Moody was rarely

scheduled to work and in the summer of 2012, she asked a

Board employee how to obtain more work. The employee

suggested that Moody introduce herself to the custodial

foremen at the schools within the district. Each school had a

custodial foreman who was delegated the authority to select

which substitute custodians worked at the school.

Around September 2012, Moody introduced herself to

approximately ten custodial foremen at different schools,

including Marshall, the custodial foreman at New York

Avenue School. By October 2012, Marshall was assigning

Moody regular work. Moody also met the custodial foreman

at Pennsylvania Avenue School and occasionally worked

there. The Board concedes that when Moody was working at

1

Because we are reviewing a summary judgment

record, we view the facts and make all reasonable inferences

in Moody’s favor. Hugh v. Butler Cty. Family YMCA, 418

F.3d 265, 266-67 (3d Cir. 2005).

3

New York Avenue School, Marshall was acting in a

supervisory capacity. Oral Argument at 18:07-18:30, Moody

v. Atl. City Bd. of Educ. (3d Cir. July 12, 2017) (No. 16-4373),

http://www.ca3.uscourts.gov/oral-argument-recordings

(counsel for the Board stating that “it’s reasonable that if

Moody was called in by Marshall that day, and Marshall was

the foreman at the school in charge of all the custodians, I think

that it’s reasonable that during that day he could be considered

[to be] in a supervisory position”). The record does not

indicate that anyone other than Marshall supervised Moody’s

work at New York Avenue School.

Moody claims that, around the end of October 2012,

Marshall began making sexual comments to her and told her

that he would assign her more hours if she performed sexual

favors for him. According to Moody, Marshall “would often

be very touch feely and grab [Moody’s] breasts or buttocks at

the work place.” App. 123. Moody testified that: (1) in early

November 2012, Marshall called Moody into his office and

tried to remove her shirt; (2) in late November, Marshall called

Moody into his office, where Moody found Marshall sitting

unclothed on his office chair; and (3) in December 2012,

Marshall grabbed Moody, pulled her towards him, and stated

“[y]ou want more hours?” App. 216. On December 27, 2012,

Marshall and Moody exchanged the following text messages:

[Marshall:] U playing

[Marshall:] Well

[Marshall:] Ok ill hit u when I go to work

[Moody:] In the am?

[Marshall:] No tonight my other job am I getting

all three holes

[Moody:] No the hell u not

4

[Marshall:] How’s penn treating u

[Marshall:] U got steady work and that’s where

the contracts going to be at

[Marshall:] I got u

App. 127-28. Moody interpreted these text messages to mean

that Marshall could help her obtain a full-time contract to work

at Pennsylvania Avenue School if she acquiesced to his sexual

advances. Moody said that Marshall came to Moody’s house

that evening and told her that she would get an employment

contract if she had sex with him. Marshall grabbed her and

began to kiss her. Moody “felt that [her] job had been

threatened,” and therefore she gave into Marshall’s unwelcome

advances and reluctantly had sex with him. App. 217. In the

days following this encounter, Moody told Marshall that it

would never happen again.

Despite her rebuke, Moody received assignments at

New York Avenue School on December 30, 2012 and January

4, 7, 8, 11, 14, 15, and 22, 2013. Moody, however, believed

that Marshall treated her differently after she rejected him. On

January 23, 2013, for example, Moody went to New York

Avenue School to pick up her paycheck from Marshall. At the

time, Marshall was playing ping pong and would not retrieve

the check for her until he finished the game. Moody also

noticed that Michelle McArthur, a new female substitute

custodian, appeared to be receiving hours instead of her. 2

Further, another custodian told Moody that she was on

2

The payroll records in fact show that, in January 2013,

Moody received no hours at New York Avenue School after

January 22 and that McArthur received work on January 23,

24, 25, 28, and 29.

5

Marshall’s “shit list.” 3 App. 119. Later that day, Marshall and

Moody exchanged the following text messages:

[Moody:] U don’t gotta act like that towards me,

I understand your upset at me but, outside of that

Im a good worker, but, Its cool

[Marshall:] Wt are u talking about, I’m not into

the drama

[Moody:] Just making sure Im not on ya so call

“shit list”

[Marshall:] U are but not like that I won’t stop u

from getting I don’t play games like that

App. 131. Moody believed that Marshall delayed retrieving

her paycheck and reduced her hours because she had rejected

his sexual advances, and she exchanged more text messages

with Marshall to that effect on January 29, 2013. In these

exchanges, Marshall seemed to deny having sex with Moody

and asserted that Moody just said this because she was angry

that he delayed retrieving her check. Moody retorted “I have

all the text messages and my parents saw u when u came to my

house.” App. 135. 4

On February 4, 2013, Moody met with Sherry Yahn, the

Board’s Assistant Superintendent, and informed Yahn that

Marshall had been sexually harassing her. Yahn immediately

3

The custodian to whom Moody attributed this

comment denied making it.

4

During his deposition, Marshall denied sexually

harassing Moody. In addition, eight custodians at New York

Avenue School stated that they had not witnessed any

inappropriate behavior on the part of Marshall or Moody.

6

took Moody to Human Resources (“HR”) to file a written

complaint. HR subsequently began an investigation into

Moody’s complaint and ordered Moody and Marshall not to

have contact with each other during the investigation. 5

HR’s March 2013 report of its investigation states that

it interviewed Moody, Marshall, and eight custodians at New

York Avenue School, but it did not reach a conclusion as to

whether Moody was sexually harassed. Later that month,

Moody filed a charge of discrimination with the Equal

Employment Opportunity Commission.

The Board hired an outside law firm to conduct an

independent investigation of Moody’s claims. After

considering the HR report and conducting further interviews,

the firm issued a report in July 2013 finding that Moody was

not subjected to sexual harassment or discrimination. The

Board informed Moody of these findings but nonetheless

ordered Marshall and Moody to avoid any contact with each

other.

Moody filed a complaint against the Board in the United

States District Court for the District of New Jersey, raising

claims of sexual harassment and retaliation in violation of Title

5

Moody’s hours decreased in the months after she

complained about Marshall. Compare App. 181-82 (showing

that Moody was assigned to work 62 hours in October 2012,

115.5 hours in November 2012, 126.5 hours in December

2012, and 56 hours in January 2013), with App. 182 (showing

that Moody was assigned to work 36 hours in February 2013,

23 hours in March 2013, 32.5 hours in April 2013, and 24 hours

in May 2013).

7

VII and the NJLAD. Moody alleged that the Board subjected

her to sexual harassment through Marshall and retaliated

against her for complaining about the harassment. 6 The

District Court found that Marshall was not Moody’s supervisor

and so the Board was not liable for his actions and, in any

event, Moody did not show she suffered a tangible

employment action. The District Court also found that because

the Board took prompt action upon receipt of her complaint, it

was entitled to the Ellerth/Faragher affirmative defense. As a

result, the District Court granted summary judgment in the

Board’s favor. Moody appeals.

II 7

We must decide whether the District Court erred by

granting the Board’s motion for summary judgment on

Moody’s sexual harassment and retaliation claims. Our review

of the District Court’s order granting summary judgment is

plenary. Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d

413, 418 (3d Cir. 2013). We apply the same standard as the

District Court, viewing facts and making all reasonable

inferences in the non-movant’s favor. Hugh v. Butler Cty.

Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005).

Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute

“is genuine only if there is a sufficient evidentiary basis on

6

Moody initially alleged that the Board retaliated

against her by transferring her children to different schools, but

she has since abandoned that theory.

7

The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.

8

which a reasonable jury could find for the non-moving party,

and a factual dispute is material only if it might affect the

outcome of the suit under governing law.” Kaucher v. County

of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving

party is entitled to judgment as a matter of law when the non-

moving party fails to make “a sufficient showing on an

essential element of her case with respect to which she has the

burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

III

A

Title VII and the NJLAD prohibit sexual harassment

because it is a form of sex discrimination. 8 Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 65-66 (1986); Lehmann v. Toys

‘R’ Us, Inc., 626 A.2d 445, 452 (N.J. 1993). 9 At oral argument,

8

Under Title VII, it is unlawful for an employer “to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-

2(a)(1). Under the NJLAD, it is unlawful “[f]or an employer,

because of the . . . sex . . . of any individual . . . to discriminate

against such individual in compensation or in terms, conditions

or privileges of employment.” N.J. Stat. Ann. § 10:5-12(a).

9

The New Jersey Supreme Court “has frequently

looked to federal precedent governing Title VII” to interpret

and apply the NJLAD. Lehmann v. Toys ‘R’ Us, Inc., 626

A.2d 445, 452 (N.J. 1993).

9

Moody stated that she is proceeding based upon a hostile work

environment theory of sexual harassment. 10

“To succeed on a hostile work environment claim

[against the employer], the plaintiff must establish that 1) the

employee suffered intentional discrimination because of

his/her sex, 2) the discrimination was severe or pervasive, 3)

the discrimination detrimentally affected the plaintiff, 4) the

discrimination would detrimentally affect a reasonable person

in like circumstances, and 5) the existence of respondeat

superior liability.” Mandel v. M & Q Packaging Corp., 706

F.3d 157, 167 (3d Cir. 2013) (citation omitted); see also

Lehmann, 626 A.2d at 453 (setting forth elements of a hostile

work environment claim under the NJLAD). 11

10

A plaintiff may also bring a sexual harassment claim

pursuant to a “quid pro quo” theory. See Lehmann, 626 A.2d

at 452 (explaining that quid pro quo sexual harassment

“involves an implicit or explicit threat that if the employee does

not accede to the sexual demands, he or she will lose his or her

job, receive unfavorable performance reviews, be passed over

for promotions, or suffer other adverse employment

consequences”).

11

In Farrell v. Planters Lifesavers Co., we left open the

question of whether the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

would apply in the context of a quid pro quo sexual harassment

claim, and we have not yet spoken on whether the framework

would apply to hostile work environment claims. 206 F.3d

271, 286 n.11 (3d Cir. 2000). Under McDonnell Douglas, once

a plaintiff makes out a prima facie case of discrimination that

resulted in an adverse employment action, the burden shifts to

the defendant to show there was a legitimate nondiscriminatory

10

Viewed in a light most favorable to her, Moody’s

testimony about Marshall’s sexual actions and his comments

reason for the adverse employment action. 411 U.S. at 802. If

the defendant can articulate such a reason, the plaintiff is

afforded an opportunity to show the reason is pretextual. Id. at

804-05. Some of our sister circuits have concluded that the

McDonnell Douglas framework does not apply in hostile work

environment sexual harassment cases. See Pollard v. E.I.

DuPont de Nemours Co., 213 F.3d 933, 943 (6th Cir. 2000)

(explaining that the McDonnell Douglas framework cannot

apply to a hostile work environment sexual harassment claim

because “there is no legitimate justification for such an

environment, and thus recourse to the McDonnell Douglas test

is not warranted”), rev’d on other grounds, 532 U.S. 843

(2001); Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410,

1417 n.8 (10th Cir. 1993) (concluding that the plaintiff’s

failure to rebut the employer’s legitimate, nondiscriminatory

reason for her termination was not relevant to a hostile work

environment claim), overruled on other grounds by Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also

Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d

501, 510–11 (11th Cir. 2000) (concluding that the district court

erred in applying the McDonnell Douglas framework to non-

retaliation sexual harassment claims, and explaining that the

Ellerth Court made no mention of McDonnell Douglas and that

sexual harassment cases have developed separately from other

claims under Title VII). We agree that the burden-shifting

framework is inapplicable here because, as the Pollard court

explained, there can be no legitimate justification for a hostile

work environment. 213 F.3d at 943. Therefore, we will not

apply the McDonnell Douglas burden-shifting framework to

Moody’s hostile work environment claim.

11

about her body supports her claim that Marshall’s harassment

occurred “because of [Moody’s] sex.” See Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (“The

intent to discriminate on the basis of sex in cases involving

sexual propositions, innuendo, pornographic materials, or

sexual derogatory language is implicit, and thus should be

recognized as a matter of course.”), superseded in part by

statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1072; Lehmann, 626 A.2d at 454 (“When the harassing

conduct is sexual or sexist in nature, the but-for element will

automatically be satisfied. Thus when a plaintiff alleges that

she has been subjected to sexual touchings or comments . . .

she has established that the harassment occurred because of her

sex.”).

Viewed from the same perspective, Marshall’s conduct

toward Moody, if proven, could be viewed by a reasonable

juror as sufficiently “severe or pervasive” to support a hostile

work environment claim. The “severe or pervasive” standard

requires conduct that is sufficient “to alter the conditions of

[the employee’s] employment and create an abusive working

environment.” 12 Meritor, 477 U.S. at 67 (citation and internal

12

The “severe or pervasive” standard is disjunctive and

so “a plaintiff need not show that her hostile working

environment was both severe and pervasive; only that it was

sufficiently severe or sufficiently pervasive, or a sufficient

combination of these elements, to have altered her working

conditions.” Pucino v. Verizon Wireless Commc’ns, Inc., 618

F.3d 112, 119 (2d Cir. 2010) (emphasis omitted); see also

Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017)

(clarifying that “[t]he correct standard is severe or pervasive”

and explaining that “severity and pervasiveness are alternative

12

quotation marks omitted). The question of “whether an

environment is sufficiently hostile or abusive must be judged

by looking at all the circumstances, including the frequency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal

quotation marks omitted).

Moody testified that, in addition to the times Marshall

made sexually charged comments to her and grabbed her,

Marshall once called her into his office and, when she entered,

she found Marshall sitting naked on a chair. On another

occasion, Marshall allegedly called Moody into his office and

attempted to take her shirt off. At another point, Marshall sent

her a text message stating “am I getting all three holes” and

thereafter showed up at her house uninvited and pressured her

into having sex with him by threatening her job. App. 127; cf.

Jin v. Metro. Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002)

(“Requiring an employee to engage in unwanted sex acts is one

of the most pernicious and oppressive forms of sexual

harassment that can occur in the workplace.”). Although

possibilities: some harassment may be severe enough to

contaminate an environment even if not pervasive; other, less

objectionable, conduct will contaminate the workplace only if

it is pervasive” (citation and internal quotation marks

omitted)); Lehmann, 626 A.2d at 455 (explaining that the

severe or pervasive test is “disjunctive” and “[t]he required

showing of severity or seriousness of the harassing conduct

varies inversely with the pervasiveness or frequency of the

conduct” (citation and internal quotation marks omitted)).

13

Marshall denies this conduct, we must view the facts in

Moody’s favor. Hugh, 418 F.3d at 266-67. From this

perspective, Moody’s account provides sufficient evidence

upon which a reasonable juror could conclude that she

experienced severe harassment, and their different accounts of

these events present disputed material facts for a jury to

resolve.

Moody’s account, if proven, could also provide a basis

from which a reasonable juror could infer that Marshall’s

conduct detrimentally affected Moody and would have

affected a reasonable person in similar circumstances.

Moody’s testimony suggests that she “subjectively perceive[d]

the environment to be abusive.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993). She testified that she believed

Marshall expected to trade sexual favors for work and would

seek retribution if she did not accede to his demands, and that

he made her uncomfortable when he grabbed her and when he

invited her to his office while he was unclothed. A reasonable

person would likely also find such an environment “objectively

hostile or abusive,” id., because it is one where a perceived

supervisor expected his subordinate to give sexual favors in

exchange for work, touched a subordinate against her wishes,

made sexual comments to her, and exposed himself to her.

Finally, since Moody sued the Board and not Marshall,

we must consider whether there are disputed facts concerning

the existence of respondeat superior liability. On this point, we

look to agency principles and the Restatement (Second) of

Agency § 219 for guidance. 13 Ellerth, 524 U.S. at 755-58. In

13

Section 219 of the Restatement provides:

14

discussing § 219(1), the Ellerth Court observed that “[t]he

general rule is that sexual harassment by a supervisor is not

conduct within the scope of employment” but that, under

§ 219(2), “[i]n limited circumstances, agency principles

impose liability on employers even where employees commit

torts outside the scope of employment.” Id. at 757-58. Most

relevant here, under § 219(2)(d), a master may be subject to

liability even when employees act outside the scope of their

employment if they were “aided in accomplishing the tort by

the existence of the agency relation.” Restatement (Second) of

Agency § 219(2)(d) (Am. Law Inst. 1958).

This “aided-in-the-accomplishment rule” can impose

liability on employers for a supervisor’s harassment. Liability

(1) A master is subject to liability for the torts of

his servants committed while acting in the scope

of their employment.

(2) A master is not subject to liability for the torts

of his servants acting outside the scope of their

employment, unless:

(a) the master intended the conduct or the

consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty

of the master, or

(d) the servant purported to act or to speak on

behalf of the principal and there was reliance

upon apparent authority, or he was aided in

accomplishing the tort by the existence of the

agency relation.

Restatement (Second) of Agency § 219 (Am. Law Inst. 1958).

15

here is predicated upon the idea that the supervisor is able to

take an employment action only because he or she is the

employer’s agent. Thus, “[w]hen a supervisor takes a tangible

employment action” against a subordinate, the employer is

vicariously liable because “the injury could not have been

inflicted absent the agency relation.” Vance v. Ball State

Univ., 133 S. Ct. 2434, 2442 (2013) (citations and internal

quotation marks omitted); see also id. (noting that a supervisor,

as opposed to a co-worker, is in a sense always “aided by the

agency relation” because “a supervisor’s power and authority

invests his or her harassing conduct with a particular

threatening character”). An employee is a supervisor for

purposes of respondeat superior liability pursuant to Title VII

if he or she is “empowered by the employer to take tangible

employment actions.” Id. at 2439. A “tangible employment

action” is “a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a

significant change in benefits.” Ellerth, 524 U.S. at 761.

There is no dispute that Marshall had the authority to

decide whether to summon Moody to work at New York

Avenue School because the Board granted him that authority

as the custodial foreman. In fact, a Board employee suggested

that Moody introduce herself to the custodial foremen as a

means to obtain work assignments. 14 The authority to assign

14

While the District Court and the Board are correct that

Marshall was only one of multiple custodial foremen within

the school district who could have assigned Moody work, we

are aware of no authority indicating that an employee cannot

have multiple supervisors. Such a rule would lead to the absurd

result that employees with multiple managers have no

16

work is a “tangible employment action” because it is a decision

that can “inflict[] direct economic harm,” Ellerth, 524 U.S. at

762, by “causing a significant change in benefits,” Vance, 133

S. Ct. at 2443. Given Marshall’s power as a custodial foreman

to even allow Moody to work, he could effect a “tangible

employment action” by setting her hours and hence her pay.

See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d

1227, 1231 (11th Cir. 2006) (“A reduction in an employee’s

hours, which reduces the employee’s take-home pay, qualifies

as a tangible employment action.”). Marshall therefore had

more than the power to direct Moody’s work or to have her

stay beyond her shift or cover an extra shift. He had the

authority to determine whether Moody worked at all if he

needed a substitute custodian. Marshall could avoid calling

Moody into work if he chose; and in fact he did so on multiple

occasions when a substitute custodian was needed at New York

Avenue School. See App. 168, 171 (suggesting that Marshall

called Michelle McArthur in to work on January 23–25 and

28–29 instead of Moody). Marshall had the authority to cause

a significant change in Moody’s benefits by assigning her no

“supervisors” for the purposes of Title VII and the NJLAD.

Moreover, the fact that Marshall was unable to hire or fire

employees is not dispositive of whether he is a supervisor. As

we have explained, an employee capable of effecting a

“tangible employment action” is a supervisor, Vance v. Ball

State Univ., 133 S. Ct. 2434, 2439 (2013), and the concept of

a tangible employment action extends beyond hiring and firing

to decisions “causing a significant change in benefits,”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998),

such as reduced work hours for an hourly worker, Cotton v.

Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231

(11th Cir. 2006).

17

hours, thereby eliminating her take-home pay. Thus,

Marshall’s power to impact Moody’s earnings is sufficient to

qualify him as a supervisor. See Cotton, 434 F.3d at 1231.

Moreover, the Board conceded that while Moody was working

at New York Avenue School, Marshall was acting in a

supervisory capacity. Oral Argument at 18:07-18:30, Moody

v. Atl. City Bd. of Educ. (3d Cir. July 12, 2017) (No. 16-4373),

http://www.ca3.uscourts.gov/oral-argument-recordings.

Furthermore, no one else was identified in the record as having

authority over Moody, other than the custodial foremen who

could assign her work at their schools. While other foremen

also could have arguably been Moody’s supervisors, Marshall

assigned Moody over 70% of her hours from October 2012

through February 2013. 15

In summary, the record here supports the conclusion

that Marshall was Moody’s supervisor because (a) the Board

empowered him as the custodial foreman to select from the list

of substitute custodians who could actually work at New York

Avenue School; 16 (b) the Board conceded that while Moody

15

The Dissent suggests that, by considering the payroll

records, the Majority is reverting to a pre-Vance rule for

determining who is a supervisor. This is not the case. We are

simply using the records to corroborate the conclusion that

Marshall controlled a sizeable amount of Moody’s work, and

hence her compensation—the benefit she received from her

employment.

16

This is not to say that every employee tasked with

creating a work schedule is a supervisor for Title VII and

NJLAD purposes. See Vance, 133 S. Ct. at 2448 (“The ability

to direct another employee’s tasks is simply not sufficient.”).

The Dissent cites to not precedential opinions of other circuits

18

was on school premises, Marshall served in a supervisory role;

(c) the record identifies no other person who was present full

time or even sporadically on the school’s premises, or

anywhere for that matter, who served as Moody’s supervisor;

and (d) since Moody’s primary benefit from her employment

was hourly compensation, and since Marshall controlled 70%

of her hours, his decision to assign or withhold hours

significantly affected her pay. 17 Thus, the record shows that

Marshall was Moody’s supervisor, as defined under Vance, for

whose conduct the Board may be liable. 18

discussing nonsupervisory employees, but we are bound by our

precedent and our custom not to rely on not precedential

opinions of our Court and, by extension, those of our sister

circuits. See I.O.P. 5.7.

17

The Dissent says that the fact Moody was not entitled

to any work, and hence not entitled to any benefits, means that

she could not experience a change to her benefits. This implies

that Moody would not be protected from sexual harassment no

matter who was her supervisor. The law, however, protects

workers from sexual harassment. Thus, while Moody was not

guaranteed any work hours, and by extension had no

guaranteed benefits, she, like other hourly workers covered by

Title VII and the NJLAD, is guaranteed to be protected from

sexual harassment by her supervisor.

18

As is apparent, the Majority has not ignored Vance

but in fact heeded its instructions. Moreover, even under the

Dissent’s articulation of Vance’s requirements, the outcome is

the same: Marshall was Moody’s supervisor. The Dissent

poses one of Vance’s considerations for determining whether

a person is a supervisor as follows: “Could Marshall . . . make

a decision that caused a significant change in [Moody’s]

benefits?” Dissent at 6. The answer to this question is

19

B

The Board argues that, even if Marshall was Moody’s

supervisor and he harassed her, it would not be liable for his

conduct pursuant to the Ellerth/Faragher defense. An

employer can establish an affirmative defense to liability for a

supervisor’s creation of a hostile work environment by

showing “(1) that it exercised reasonable care to prevent and

promptly correct any harassing behavior and (2) that the

plaintiff unreasonably failed to take advantage of any

unequivocally yes. Marshall had the authority from the Board

to determine whether Moody worked at all at New York

Avenue School and this authority was not vague or “ill-

defined.” Vance, 133 S. Ct. at 2443.

Moreover, contrary to the Dissent’s characterization,

the Majority is not simply relying on the fact that Marshall

could assign Moody work hours. Marshall was not a mere

scheduler, assigning hours among those who were in a pool of

employees. Marshall controlled whether Moody worked at

New York Avenue School at all. Furthermore, the record does

not reflect that anyone else was Moody’s supervisor. The

Dissent challenges this statement by citing to Moody’s

deposition testimony where she was asked whether she

discussed Marshall’s behavior with anyone such as the

principal or Marshall’s supervisor. This exchange, however,

does not indicate that either of these people supervised her

pursuant to Vance. Moreover, while the Dissent suggests that

those who hired Moody qualify as her supervisors under

Vance, even if that were so, this does not mean Marshall was

not also her supervisor.

20

preventive or corrective opportunities that were provided.”

Vance, 133 S. Ct. at 2442 (citing Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 765). Under Federal Rule of Civil

Procedure 8(c), “[i]n responding to a pleading, a party must

affirmatively state any . . . affirmative defense.” Fed. R. Civ.

P. 8(c)(1); see also Ellerth, 524 U.S. at 765 (describing the

defense as an “affirmative defense” and citing to Rule 8(c)).

“An affirmative defense which is neither pleaded as required

by [R]ule 8(c) nor made the subject of an appropriate motion

under [R]ule 12(b) is waived.” Sys. Inc. v. Bridge Elecs. Co.,

335 F.2d 465, 466 (3d Cir. 1964). However, an affirmative

defense generally “need not be articulated with any rigorous

degree of specificity, and is sufficiently raised for purposes of

[Federal] Rule [of Civil Procedure] 8 by its bare assertion.”

Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir.

1997) (citation and internal quotation marks omitted). While

the Board’s answer did not explicitly identify the

Ellerth/Faragher defense, the answer states that the Board “at

all times, acted in good faith and based on reasonable and

rational decision-making and procedure delegated to it under

the laws of the State of New Jersey.” Def. App. 60. This

statement is sufficient to raise the assertion that the Board acted

with “reasonable care” under the first prong of the

Ellerth/Faragher analysis regarding promptly taking corrective

action. The Board’s answer also states that Moody’s damages

were barred by her “failure to mitigate.” Def. App. 60. Under

the second prong of the Ellerth/Faragher analysis, a plaintiff’s

failure to take advantage of preventative or corrective

opportunities at a school could be characterized as a “failure to

mitigate” damages. See Adams v. Austal, U.S.A., L.L.C., 754

F.3d 1240, 1258 (11th Cir. 2014) (finding that pleading of

“failure to mitigate” sufficiently raised an Ellerth/Faragher

defense). Accordingly, while it would have been better to more

21

explicitly assert the Ellerth/Faragher defense, the Board’s

answer provides sufficient notice of its intent to raise it. See

Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)

(“The purpose of requiring the defendant to plead available

affirmative defenses in [its] answer is to avoid surprise and

undue prejudice by providing the plaintiff with notice and the

opportunity to demonstrate why the affirmative defense should

not succeed.”).

The Board’s brief in support of its motion for summary

judgment also alludes to the Ellerth/Faragher defense, even

though it is not mentioned by name. Its brief emphasizes that

Moody did not report the harassment until February 4, 2013,

and the Board immediately took action and conducted a

thorough investigation upon receiving her complaint. These

arguments address the Ellerth/Faragher analysis by claiming

that Moody failed to take advantage of corrective opportunities

when she did not timely report the harassment, and asserting

that the Board acted reasonably by immediately conducting a

thorough investigation into Moody’s complaint. Therefore, the

Board did not waive its Ellerth/Faragher defense.

The Ellerth/Faragher defense, however, is available

only where the plaintiff did not experience a “tangible

employment action.” Ellerth, 524 U.S. at 765. Moody argues

that she experienced a tangible employment action by

receiving reduced hours from Marshall. There are many ways

Moody’s work hours could be viewed. For example, Moody

worked more hours for Marshall in the three pay periods before

she rejected his advances than in the three pay periods after she

rejected them. Compare App. 156, 159, 162 (showing that

Moody worked a total of 94 hours at New York Avenue School

in the pay periods of November 19-30, December 3-14, and

22

December 17-28), with App. 165, 168, 171 (showing that

Moody worked a total of 62.5 hours at New York Avenue

School in the pay periods of December 31-January 11, January

14-25, and January 28-February 8). A reasonable juror could

conclude that Marshall gave Moody hours to entice her to

accede to his sexual demands and then reduced her hours after

she rejected him. On the other hand, Moody received about

the same number of hours at New York Avenue School in

January 2013, after she rejected Marshall, as she did in

December 2012, before she rejected Marshall. Compare App.

156, 159, 162, 165 (showing that Moody worked a total of 54.5

hours at New York Avenue School in December 2012), with

App. 165, 168, 171 (showing that Moody worked a total of 56

hours at New York Avenue School in January 2013). A

reasonable juror could therefore also conclude that Marshall

did not reduce Moody’s hours at all following her rejection of

his advances. Because Moody’s pay records are central to the

question of whether she suffered a tangible employment action

and could reasonably be viewed in two ways, there is a

disputed issue of material fact as to whether she suffered a

tangible employment action. Because the Ellerth/Faragher

defense is available only where there is no tangible

employment action, Ellerth, 524 U.S. at 765, a jury must first

decide whether there was such an action. If the jury concludes

that there was not, the District Court or jury (if there are

disputed material facts with respect to the Ellerth/Faragher

defense) may then decide whether the Board avoids liability

based on the defense. Because there are disputed facts

concerning whether Marshall took a tangible employment

action against Moody, and the answer to that question dictates

whether the Board may invoke the Ellerth/Faragher defense,

we will vacate the District Court’s order granting summary

23

judgment in the Board’s favor on Moody’s hostile work

environment claim.

IV

Title VII and the NJLAD make it unlawful for an

employer to retaliate against an employee who complains

about employment discrimination. 19 To establish a prima facie

case of retaliation under Title VII, a plaintiff must show “(1)

[that she engaged in] protected employee activity; (2) adverse

action by the employer either after or contemporaneous with

the employee’s protected activity; and (3) a causal connection

between the employee’s protected activity and the employer’s

adverse action.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181,

193 (3d Cir. 2015) (citation and internal quotation marks

omitted); Craig v. Suburban Cablevision, Inc., 660 A.2d 505,

508 (N.J. 1995) (reciting similar elements for NJLAD

retaliation).

As to the first element of the prima facie case, Moody

filed a written complaint about Marshall’s alleged sexual

19

Title VII makes it unlawful “for an employer to

discriminate against any of [its] employees . . . because [the

employee] has opposed any practice made an unlawful

employment practice by this subchapter, or because [the

employee] has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

Similarly, under the NJLAD, it is unlawful “[f]or any person

to take reprisals against any person because that person has

opposed any practices or acts forbidden under this act.” N.J.

Stat. Ann. § 10:5-12(d).

24

harassment with the Board on February 4, 2013, and the Board

concedes that this action constitutes an “activity protected by

Title VII.” App. 56; see Daniels, 776 F.3d at 193 (noting that

protected activity includes “informal protests of discriminatory

employment practices, including making complaints to

management” (citations and internal quotation marks

omitted)).

As to the second element, we must determine whether

Moody suffered a materially adverse action. In this context, a

materially adverse action is one that would have “dissuaded a

reasonable worker from making or supporting a charge of

discrimination.” Id. at 195 (citations and internal quotation

marks omitted). Here, after Moody filed her February 2013

complaint of sexual harassment, she experienced a drop in the

hours she was assigned. In the four months preceding her

complaint, Moody worked a total of 360 hours. See App. 181-

82 (showing that Moody was assigned to work 62 hours in

October 2012, 115.5 hours in November 2012, 126.5 hours in

December 2012, and 56 hours in January 2013). By

comparison, in the four months following her complaint,

Moody worked a total of 115.5 hours. See App. 182 (showing

that Moody was assigned to work 36 hours in February 2013,

23 hours in March 2013, 32.5 hours in April 2013, and 24 hours

in May 2013). Therefore, Moody’s working hours declined

three-fold in the months following her complaint as compared

to the months preceding her complaint. Viewing these facts in

a light most favorable to the non-movant, a reasonable

employee could view this reduction of work hours, and the

resulting decreased pay, as sufficient to discourage him or her

from filing a sexual harassment complaint. Therefore, Moody

satisfies the second element of the prima facie case.

25

Finally, as to whether there is a causal connection

between the plaintiff’s protected activity and the employer’s

adverse action, a court considers a “broad array of evidence,”

including whether there is an “unusually suggestive” temporal

proximity between the protected activity and adverse action.

Daniels, 776 F.3d at 196 (citations and internal quotation

marks omitted). An inference of “unduly suggestive” temporal

proximity begins to dissipate where there is a gap of three

months or more between the protected activity and the adverse

action. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503

F.3d 217, 233 (3d Cir. 2007). In this case, as noted above,

Moody’s working hours declined immediately following the

filing of her complaint and never recovered. In fact, in the two

pay periods directly following the filing of her complaint,

Moody was not assigned any hours. See App. 173-77

(showing no hours worked for Moody during the pay periods

of February 11-22 and February 25-March 8). The close

temporal connection between Moody’s complaint and the

reduction in her hours is “unduly suggestive” and sufficient to

provide prima facie evidence of a causal connection.

Accordingly, Moody has established a prima facie case

of retaliation under Title VII and the NJLAD. 20

20

While there may be a legitimate, nondiscriminatory

reason for the reduction in Moody’s hours, neither the parties

nor the District Court addressed it because the District Court

concluded that Moody did not establish a prima facie case of

retaliation. See Daniels, 776 F.3d at 193 (stating that after the

plaintiff makes out her prima facie case, “the burden of

production of evidence shifts to the employer to present a

legitimate, non-retaliatory reason for having taken the adverse

26

V

For the foregoing reasons, we will vacate the judgment

of the District Court and remand for further proceedings.

action”). The District Court may address this issue on remand,

and we express no opinion on its proper resolution.

27

Michelle Moody v. Atlantic City Board of Education

No. 16-4373

RENDELL, Circuit Judge, concurring in part and dissenting

in part.

Four years ago in Vance v. Ball State University, 133

S. Ct. 2434 (2013), the Supreme Court set forth a clear and

straightforward test for determining whether an employee

ought to be considered a “supervisor” for purposes of the

employer’s vicarious liability for sexual harassment in the

workplace under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e–2(a)(1). The Majority’s decision to deem

Marshall a “supervisor” and allow Moody’s hostile work

environment claim to move forward totally ignores, and is

inconsistent with, this recent pronouncement. For that reason,

I respectfully dissent. 1

I. “Supervisor” Before Vance

The Supreme Court first attached significance to the

“supervisor” label in Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998), and Faragher v. City of Boca Raton,

524 U.S. 775 (1998). In those cases, the Supreme Court held

that an employer will be held vicariously liable for its

employees who engage in discrimination such as sexual

1

I do not take issue with the Majority’s judgment on

Moody’s retaliation claim.

harassment, even in the absence of negligence, if the harasser

was a “supervisor” who took a “tangible employment action”

against the victim. See Ellerth, 524 U.S. at 762; Faragher,

524 U.S. at 790. These cases defined a “tangible employment

action” as a “significant change in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a

significant change in benefits.” Ellerth, 524 U.S. at 761.

They explained that “[a] tangible employment decision

requires an official act of the enterprise, a company act[,]”

which “in most cases is documented in official company

records, and may be subject to review by higher level

supervisors.” Id. at 762.

Although Ellerth and Faragher confirmed the

significance of supervisor status for Title VII claims, they left

the term “supervisor” undefined. 2 This lack of guidance led

to a circuit split. Some courts interpreted the case law to

“presuppose[] a clear distinction between supervisors and co-

workers” that focused on such discrete responsibilities as

hiring/firing, promoting/demoting, transferring, and

disciplining, while others followed the “open-ended approach

advocated by the EEOC’s Enforcement Guidance, which

tie[d] supervisor status to the ability to exercise significant

2

In both Ellerth and Faragher, the status of the alleged

harasser was not in dispute and so the Supreme Court did not

need to reason through this issue. See Vance, 133 S. Ct. at

2447 (“In light of the parties’ undisputed characterization of

the alleged harassers, this Court simply was not presented

with the question of the degree of authority that an employee

must have in order to be classified as a supervisor.”).

2

direction over another’s daily work.” See Vance, 133 S. Ct. at

2443 (contrasting the former approach taken by the First,

Seventh, and Eighth circuits with the latter approach taken by

the Second and Fourth circuits). The EEOC’s Enforcement

Guidance set forth vague qualitative and quantitative

guidelines:

[A]n employee, in order to be classified as a

supervisor, must wield authority of sufficient

magnitude so as to assist the harasser explicitly

or implicitly in carrying out the harassment. . . .

[T]he authority must exceed both an ill-defined

temporal requirement (it must be more than

occasiona[l]) and an ill-defined substantive

requirement (an employee who directs only a

limited number of tasks or assignments for

another employee . . . would not have sufficient

authority to qualify as a supervisor.[)].

Id. at 2449 (citations and internal quotation marks omitted)

(third alteration in original). Courts adopting the EEOC’s

Enforcement Guidance thus considered “the number (and

perhaps the importance) of the tasks in question [as] a factor

to be considered in determining whether an employee

qualifies as a supervisor.” Id. at 2450. In Vance, the

Supreme Court noted that this approach resulted in a

“standard of remarkable ambiguity” given that “[k]ey

components of that standard—‘sufficient’ authority, authority

to assign more than a ‘limited number of tasks,’ and authority

that is exercised more than ‘occasionally’—have no clear

meaning.” Id.

3

Prompted by the deepening divide among the circuits

and the myriad variations that the label “supervisor” had

come to connote depending on the context, 3 Vance finally

addressed the “supervisor” question.

II. Vance v. Ball State University

Writing for the majority in Vance, Justice Alito made

it quite clear that the Supreme Court was announcing a new,

“readily applied” test for determining whether one is a

“supervisor” for purposes of hostile work environment claims

brought under Title VII. Id. at 2449. The case marked a shift

in analysis away from the “nebulous definition,” id. at 2443,

or “study in ambiguity,” id. at 2449, that had previously

applied. No longer is there an assortment of “varying

meanings” that can be considered, id. at 2446, or “a highly

3

See Vance, 133 S. Ct. at 2444 (“A comparison of the

definitions provided by two colloquial business authorities

illustrates the term’s imprecision in general usage. One says

that ‘[s]upervisors are usually authorized to recommend

and/or effect hiring, disciplining, promoting, punishing,

rewarding, and other associated activities regarding the

employees in their departments.’ Another says exactly the

opposite: ‘A supervisor generally does not have the power to

hire or fire employees or to promote them.’ . . . If we look

beyond general usage to the meaning of the term in other

legal contexts, we find much the same situation. Sometimes

the term is reserved for those in the upper echelons of the

management hierarchy. . . . But sometimes the term is used to

refer to lower[-]ranking individuals.”) (citation and footnotes

omitted) (alteration in original).

4

case-specific evaluation of numerous factors” in which courts

ought to engage, id. at 2443. Rather, the newly streamlined

test is whether the person in question has the authority—

“empowered by the employer”—to alter the employee’s

status. Id. at 2439. Courts are now charged with asking

whether the employee in question is capable of taking one of

several discrete actions toward the employee: Can that

person hire or fire the employee? Can that person promote or

demote the employee? Can that person reassign the employee

with significantly different responsibilities or make a decision

that causes a significant change in the employee’s benefits?

If none of these questions can “readily” be answered in the

affirmative, then the inquiry ends and the reviewing court

may not deem that employee a “supervisor.” This bright-line

approach fosters an “easily workable” definition that “can be

applied without undue difficulty at both the summary

judgment stage and at trial.” Id. at 2444 (also observing that

“[t]he alternative, in many cases, would frustrate judges and

confound jurors”). 4

4

Clarifying Ellerth and Faragher, Justice Alito stated:

Those decisions contemplate a unitary category

of supervisors, i.e., those employees with the

authority to make tangible employment

decisions. There is no hint in either decision

that the Court had in mind two categories of

supervisors: first, those who have such

authority and, second, those who, although

lacking this power, nevertheless have the ability

to direct a co-worker’s labor to some ill-defined

degree. On the contrary, the Ellerth/Faragher

framework is one under which supervisory

5

III. Marshall Is Not a “Supervisor” Under Vance

Turning to our case, I would have applied the

unambiguous test that Vance established rather than the

Majority’s open-ended, multi-factor approach that Vance

explicitly rejected. Could Marshall hire or fire Moody?

Could Marshall promote or demote Moody? Could Marshall

reassign Moody with significantly different responsibilities or

make a decision that caused a significant change in her

benefits? The record undoubtedly answers all of these

questions in the negative.

The Majority primarily argues that Marshall was

Moody’s “supervisor” because he could cause a significant

change in Moody’s benefits by virtue of his ability to assign

her hours and his record of assigning her a significant number

of hours. The Majority relatedly urges that Marshall’s

supervisory status also stems from his ability “to determine

whether Moody worked at all” at the New York Avenue

School. Maj. Op. at 18. But as the record and relevant case

status can usually be readily determined,

generally by written documentation.

Id. at 2443. Ellerth held that “[t]angible employment actions

are the means by which the supervisor brings the official

power of the enterprise to bear on subordinates.” 524 U.S. at

762. Elucidating this statement, Vance rejected the “open-

ended approach” and held that “[t]he strong implication of

this passage is that the authority to take tangible employment

actions is the defining characteristic of a supervisor, not

simply a characteristic of a subset of an ill-defined class of

employees who qualify as supervisors.” 133 S. Ct. at 2448.

6

law demonstrate, neither characterization of Marshall’s

responsibilities is enough to render Marshall a “supervisor”

under Vance. I will address each one in turn.

A.

The Majority contends that because Marshall impacted

Moody’s “benefits”—i.e., her pay by virtue of giving, or not

giving, work—he was her “supervisor.” Id. Due to the

number of hours he assigned her (and then ultimately did not

assign her), the argument goes, this impact was “significant”

so as to make Marshall’s assignment of work fit within the

last phrase of the Ellerth description of tangible employment

actions—a decision that causes a “significant change in

benefits.” Id. at 17 (citation omitted); see also id. at 18

(“Marshall assigned Moody over 70% of her hours from

October 2012 through February 2013”). This contention, and

the approach it rests on, squarely contradicts Vance, as

Moody was not entitled to any “benefits” that could be

“change[d].”

The Majority rightly notes that as a substitute

custodian, Moody “was not guaranteed any work.” Id. at 3.

Moody well understood what her position entailed, as she

testified in her deposition that she was never entitled to a

minimum number of days of work per week, fixed tenure,

raise in salary, promotion to full-time custodian, or any

additional benefits. (See A. 206–09.) Indeed, when she

wanted more assignments, Moody knew she needed to take

the initiative to introduce herself to the foremen and make it

known that she was available. Moody’s arrangement with

the Board is dispositive of the supervisor question, as the

benefits to which she was entitled constitute our starting point

7

for assessing whether there was a “significant change.” But

as Moody testified, there were no benefits to which she was

entitled.

“Significant change in benefits,” placed as it is in

Ellerth as the last phrase following such discrete capabilities

as hiring and firing, see 524 U.S. at 761, must involve a

change in some specific aspect of employment that has

already been contracted for or is reasonably expected, such as

take-home pay, vacation days, health coverage, and the like.

Moody was not entitled to, nor had any expectation of, any of

these types of benefits, and Marshall did not have any

authority to provide them, let alone alter them. While he

could assign her work, as could the other ten foremen, Vance

rejected that capability as part of a nebulous supervisor

calculus. See Vance, 133 S. Ct. at 2445–46 (citing 5 C.F.R. §

9701.212(b)(4) as an example that in some legal contexts,

“supervisory work . . . may involve hiring or selecting

employees” and “assigning work,” and noting that “the term

‘supervisor’ has varying meanings both in colloquial usage

and in the law” and that therefore a streamlined definition

was necessary for Title VII purposes).

Furthermore, if impacting pay by giving or not giving

work elevates an employee to supervisor status, every person

in charge of the weekly roster for hourly workers such as

waiters, nurses, truckers, and the like will be supervisors if

they sufficiently favor, or disfavor, certain of those workers.

And such a purported “supervisor” would not be a

“supervisor” of those employees whose hours were not

significantly impacted. The analysis espoused by the

Majority today would have courts engage in a rigorous fact-

checking of payroll records and then not only calculate the

8

total number of hours worked but also identify and contrast

patterns of those hours over time and among employees. 5

Such an undertaking is precisely the sort of “highly case-

specific evaluation” that Vance eliminated. Even if we were

permitted to engage in that sort of inquiry, the Majority’s

conclusion would still be erroneous because Marshall’s

responsibilities do not take on greater weight—and, by

extension, do not render him a “supervisor”—simply because

Moody happened to be more successful with him than with

other foremen in securing work. Marshall’s responsibilities

are defined at the front-end by the terms set by the employer,

which in this case, simply did not task Marshall with a

supervisory role as contemplated by Vance.

Marshall’s assignment of hours, and its impact on

Moody’s pay, is only noteworthy because Moody was a wage

employee and not a salaried one. The few courts of appeals

to address the “supervisor” question have noted this

distinction—wage employee as opposed to salaried—but then

have rejected the idea that influencing hours and pay in this

5

The Majority aims to downplay its rigorous examination

of the record (and, more specifically, its reliance on the

payroll records), by stating that it is “simply using the records

to corroborate the conclusion that Marshall controlled a

sizeable amount of Moody’s work, and hence her

compensation—the benefit she received from her

employment.” Maj. Op. at 18 n.15. This understatement is

puzzling, as the Majority’s conclusion that the impact of

Marshall’s assignments on Moody’s take-home pay rendered

him a “supervisor” is necessarily drawn from and dependent

on an analysis of these very records.

9

way could render an employee a “supervisor.” See EEOC v.

Autozone, Inc., No. 16-6387, 2017 WL 2506526, at *2–3 (6th

Cir. June 9, 2017) (implying that victim was an hourly

employee but still finding that harasser was not her

“supervisor” because he could not fire, demote, promote, or

transfer, and noting that “Vance establishes a sharp line

between co-workers and supervisors, not an invitation for

speculation about amorphous levels of influence”) (citation

and internal quotation marks omitted); Chavez-Acosta v. Sw.

Cheese Co., LLC, 610 F. App’x 722, 730 (10th Cir. 2015)

(holding that an employee was not a “supervisor” because he

could not effect “significant change” in the victim’s

employment even though he was a “team leader” in the

department in which the victim worked and even though the

victim was an hourly employee); McCafferty v. Preiss

Enters., Inc., 534 F. App’x 726, 728, 731 (10th Cir. 2013)

(finding no “supervisor” status for an employee who oversaw

and assigned work to McDonald’s crewmembers and noting

that “[i]f mere influence in tangible employment decisions

rendered a co-worker a supervisor, this exception would

swallow the rule”).

Other courts of appeals have likewise found supervisor

status to be lacking when reviewing responsibilities similar to

those assigned to Marshall. See Kim v. Coach, Inc., No. 14-

16248, 2017 WL 2615457, at *1 (9th Cir. June 16, 2017)

(finding no supervisor status for employee who could give

instructions about work); Matherne v. Ruba Mgmt., 624 F.

App’x 835, 840 (5th Cir. 2015) (finding no supervisor status

for employee who had some leadership authority, including

control over a book where managers would make comments

if anything went wrong in the workplace, but could not hire,

fire, promote, demote, transfer, or discipline); Spencer v.

10

Schmidt Elec. Co., 576 F. App’x 442, 447–48 (5th Cir. 2014)

(finding no supervisor status for employee who could give

other employees direction on how to do their jobs but could

not fire anyone without permission, and noting that “evidence

. . . that a foreman was authorized to direct the employee’s

daily work activities . . . is the definition of supervisor

expressly rejected by the Supreme Court”) (internal quotation

marks omitted). Conversely, courts have found that an

employee qualifies as a supervisor when empowered to take

the sorts of actions that Marshall could not. See Voltz v. Erie

Cty., 617 F. App’x 417, 424 (6th Cir. 2015) (employee who

could interview and hire candidates, determine salary

increases, and make recommendations regarding employee

terminations was a “supervisor”). The only case that the

Majority cites to support its elastic definition of “supervisor”

as encompassing reducing another’s hours, Cotton v. Cracker

Barrel Old Country Store, Inc., 434 F.3d 1227 (11th Cir.

2006), was decided over seven years before Vance and

focused on “highly case-specific” factors that Vance

explicitly rejected. See Vance, 133 S. Ct. at 2443 (rejecting

the notion that one who “ha[s] the ability to direct a co-

worker’s labor to some ill-defined degree” may properly be

considered a “supervisor”).

B.

The Majority relatedly contends that Marshall had the

authority to determine “whether Moody worked at all” at the

New York Avenue School. Maj. Op. at 18. Relying solely

on Cotton, this line of argument urges that “Marshall had the

authority to cause a significant change in benefits by

assigning her no hours, thereby eliminating her take-home

pay.” Id. But such a characterization, insinuating that

11

Moody’s fate as a Board employee was entirely up to

Marshall, blatantly ignores the fact that Marshall had no

control whatsoever over Moody’s ability to work at the ten

other schools, and that she was only prohibited from working

at the New York Avenue School after other Board employees

told her to have no further contact with Marshall following

her internal complaint.

Seeking to portray Marshall as the ultimate decision-

maker of Moody’s work status, the Majority states that “no

one else was identified in the record as having authority over

Moody, other than the custodial foremen who could assign

her work at their schools.” Id. Such a gap in the record

would prove nothing regarding Marshall’s authority over

Moody—the issue dispositive to Moody’s hostile work

environment claim. This description of the record is also

wrong. For example, Moody’s deposition indicates the

presence of at least one other Board employee at the New

York Avenue School whose authority over her was superior

to Marshall’s. Moody testified to the effect that Marshall was

not in charge at the New York Avenue School during the time

that Moody worked there. The relevant exchange occurred

during questioning regarding Moody’s description of

Marshall grabbing her in a school stairwell to kiss her:

Q. Did you discuss your discomfort with

anyone?

A. No.

Q. So you didn’t tell the building supervisor,

like the building principal?

A. No.

Q. Mr. Marshall’s supervisor?

A. No.

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Q. How about the police?

A. No.

(A. 212 (emphasis added).) This exchange suggests that there

was someone else stationed at the New York Avenue School

to whom Moody reported and who had supervisory authority

over her. The record also identifies the Board employees who

hired Moody and who therefore were her supervisors under

Vance. 6 These examples from the record seriously

undermine the Majority’s notion that “no one else” had

“authority over Moody.”

The Majority’s reasoning further suffers from the

absence of any limiting principle that the Supreme Court in

Vance was so determined to impose in employment cases like

this one. The Majority reasons on the one hand that

Marshall’s ability to put together Moody’s schedule at the

New York Avenue School rendered him her “supervisor” and,

on the other hand, that “not . . . every employee tasked with

creating a work schedule is a supervisor for Title VII . . .

purposes.” Maj. Op. at 19 n.16. But the Majority fails to

explain—let alone cite any supporting legal authority—why

we ought to set aside the dictates of Vance and find that

“creating a work schedule” is sufficient in this case. This

omission is particularly glaring because the three other factors

relied upon by the Majority—the Board’s so-called

6

Though the Majority emphasizes that Vance did not

preclude the possibility of multiple supervisors, that lack of

explicit preclusion says nothing about whether Marshall

himself enjoyed supervisory power over Moody.

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“concession” of Marshall’s status; 7 the record’s “failure” to

identify an alternative supervisor; and the Majority’s analysis

of Moody’s payroll records—do not make the case for

deeming Marshall a “supervisor.”

All Marshall could do vis-à-vis Moody was schedule

her hours at one out of the eleven schools at which she was

qualified to work. If that alone, as the Majority concedes, is

insufficient to render an employee a “supervisor,” how can

Marshall possibly be Moody’s “supervisor” as defined by

Vance? The gloss that the Majority seeks to put on

Marshall’s (limited) responsibilities is wholly belied by the

facts of the record and the requirements of the law.

IV. Conclusion

Whether or not we agree with the narrowed definition

of “supervisor” set forth in Vance that will necessarily

eliminate some employees’ claims against employers for

hostile or harassing conduct, we are bound to follow the

Supreme Court’s renunciation of the idea that one who

assigns work is a supervisor:

Particularly in modern organizations that have

abandoned a highly hierarchical management

structure, it is common for employees to have

overlapping authority with respect to the

7

The Board’s remark during oral argument that Marshall

was acting in a supervisory capacity when Moody worked at

the New York Avenue School only evinces the Board’s own

misunderstanding of the concept of “supervisor.”

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assignment of work tasks. Members of a team

may each have the responsibility for taking the

lead with respect to a particular aspect of the

work and thus may have the responsibility to

direct each other in that area of responsibility.

Vance, 133 S. Ct. at 2452. In making this statement, Vance

was responding to—and rejecting—the dissenting justices’

observation, now adopted by the Majority in this case, that

“individuals with the power to assign daily tasks are often

regarded by other employees as supervisors.” Id. Even if that

perception exists, it is not the law for purposes of Title VII.

The Supreme Court has now held that the responsibility to

direct others does not make an employee a “supervisor,” and

this ruling dictates that Marshall was not Moody’s

“supervisor.” 8

Our limited role for purposes of this appeal is not to

figure out precisely who at the Board had supervisory power

over Moody. We need only address whether Marshall did in

8

I echo Justice Alito’s remark in Vance that victims of

sexual harassment perpetrated by employees not considered

“supervisors” may still pursue other related claims under Title

VII, including negligence and quid pro quo (a claim that

Moody’s counsel inexplicably dropped at oral argument). See

133 S. Ct. at 2452. The Majority’s conclusion that my

application of Vance to Moody’s claim would preclude

similarly situated employees from protection against sexual

harassment is a reformulation of an argument raised by the

dissenting justices in Vance—and quickly rejected by the

majority in that case. See id. at 2451.

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order to allow Moody’s hostile work environment claim to

proceed. It is clear to me, with Vance as binding precedent,

that he did not. The Majority’s conclusion to the contrary is

simply incorrect.

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