Assigning Work Hours is Sufficient to Establish "Supervisor" Status...and Expose the Employer to Any Alleged Misconduct That Occurs

Moody v. Atlantic City Board of Education - Third Circuit Court of Appeals

Facts:  Michelle Moody ("Moody") was hired by the Atlantic City Board of Education ("Board") in November of 2011 to work as a substitute custodian.  After not receiving a lot of work hours, Moody was told to talk to the custodial foremen at various schools in the district.  At one of the schools, the custodial foreman, Maurice Marshall ("Marshall"), started assigning Moody regular work.  (The Board acknowledged that when Moody was working at Marshall's school, Marshall was acting in a supervisory capacity.)  Moody claims that beginning around October of 2012, Marshall began making sexual comments and advances toward her via text and in person.  After Moody rebuked Marshall's advances, she still continued to receive assignments at his school.  However, Moody claims that a new female substitute custodian started to receive work hours instead of her.

In February of 2013, Moody met with Sherry Yahn ("Yahn"), the Board's Assistant Superintendent, and told Yahn that Marshall was sexually harassing her.  A written complaint was filed with HR and after an investigation was conducted, HR did not reach a conclusion as to whether Moody was sexually harassed.  Moody subsequently filed a charge of discrimination with the EEOC.  The Board hired an outside law firm to conduct an independent investigation which ultimately concluded that Moody was not subjected to sexual harassment or discrimination.

Moody then proceeded to file suit against the Board and alleged she had been sexually harassed and subject to retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the New Jersey Law Against Discrimination ("NJLAD").   The District Court held that Marshall was not Moody's supervisor and therefore the Board was not liable for his alleged actions.  As well, the District Court held that the Board took prompt action upon receipt of her complaint.  Therefore, summary judgment was granted in favor of the Board.  Moody appealed to the Third Circuit Court of Appeals.

Holding:  To start at the beginning, for an employee to succeed on a hostile work environment claim against his/her employer, it must be established 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 employee; 4) the discrimination would detrimentally affect a reasonable person in similar circumstances; and 5) the existence of respondeat superior liability.  (Note, the Court established the existence of the first four elements rather quickly.  As the Court's analysis turned mainly on the fifth factor, that is what I will focus on in this instance.)

As set out by the Supreme Court in Vance v. Ball State University, "[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."  An employee is a supervisor for purposes of respondeat superior liability if he/she is "empowered by the employer to take tangible employment actions."  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." 

As noted, Marshall had the authority to decide Moody's work assignments at his school as the Board had given him that authority as a custodial foreman.  In doing so, Marshall had the ability to determine when, how long, and how often Moody (and other custodians) worked at his school.  (Consequently, Marshall's power to impact Moody's earnings was held to be sufficient to qualify him as a supervisor.)  In fact, the Board recognized that when Moody was working at Marshall's school, Marshall was acting in a supervisory capacity.  Consequently, the Court held that this ability to assign work hours was sufficient to effect a "tangible employment action".

Judgment:  The Court of Appeals vacated summary judgment in favor of the employer and remanded the case on the grounds that the custodial foreman was acting in a supervisory capacity when he was given the responsibility to assign work hours for custodians at his school, such that his alleged sexual misconduct could expose the employer to liability under Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination.

The Takeaway:  While the Court of Appeals addressed other aspects of Moody's claim, I wanted to focus solely on the question of whether the ability to assign/control work hours qualified as "supervisor" status.  As with many cases, a court's analysis can turn on the language of a statute or a prior case's precedent.  This case was no exception, as following the standard set forth in the Supreme Court's 2013 case, Vance v. Ball State University, there was sufficient evidence to establish potential liability for the Board as a result of Marshall's alleged misconduct.  As a result of Marshall having the ability to assign work hours at his school, choosing who to call in for work (or not call in), and who to exclude from a work schedule, I think the Court got it right that this was a "tangible employment action."  Consequently, it naturally follows that once the Court reached the conclusion that this ability to control work hours/take home pay qualified Marshall as a supervisor, the Board was potentially liable for his alleged misconduct.

Employers take note of this case:  Under the recent Vance v. Ball State University decision, potential exposure can exist when an employee is deemed to be a supervisor because that employee is charged with taking "tangible employment actions."  As this case demonstrates, something as potentially "minor" as allowing an employee to assign work hours for other employees could result in that employee being designated as a supervisor...and subsequently exposing the employer for any alleged misconduct that occurs.

Majority Opinion Judge:  Circuit Judge Shwartz

Date:  September 6, 2017

Opinion:  http://hr.cch.com/ELD/MoodyAtlantic090617.pdf