Moody v. Atlantic City Board of Education, 2017 U.S. App. LEXIS 17191 (Sept. 6, 2017)

Third Circuit finds that a custodial foreman’s authority to assign work to the plaintiff required a finding that he was the plaintiff’s supervisor for purposes of Title VII.

The plaintiff was a substitute custodian in the employer’s school district. As a substitute custodian, she could obtain assignments at any school within the school district. In an effort to increase her hours, the plaintiff met with several custodial foremen in the district, as they had the authority to request that she work when one of their regular employees was out. Shortly after her meetings, she began to consistently receive assignments at one of the schools. In her lawsuit, she alleged that the custodial foreman of that school began to sexually harass her, including commenting that he would provide her with more hours if she performed sexual favors for him; grabbing her breasts or buttocks; and she found him in his office unclothed on one occasion. Approximately two months later, the custodial foreman appeared at her home and told her she would get an employment contract if she had sex with him. After he began kissing her, she reluctantly had sex with him, asserting that she felt that her job was threatened. Shortly thereafter, she rejected his advances. Within the next two months, her hours were cut at that particular school. The plaintiff complained to upper management regarding the incidents. The school investigated the concerns by interviewing ten employees. While the school did not find evidence of sexual harassment, it ordered the plaintiff and the custodial foreman to avoid any contact with each other.


The plaintiff then filed her federal lawsuit, alleging a hostile work environment and retaliation by the school district. The trial court granted the school district’s motion for summary judgment, finding that: (1) the custodial foreman was not her supervisor for purposes of Title VII; and (2) the plaintiff failed to demonstrate that she sustained a tangible employment action. Finally, the trial court determined that the school district took prompt remedial action, which entitled it to the Ellerth/Faragher affirmative defense.


However, The Third Circuit reversed and remanded the dismissal in a split decision. Specifically, the Third Circuit held that the custodial foreman was the plaintiff’s supervisor in light of the Supreme Court’s decision in Vance. In so holding, the Third Circuit stated that, “Authority to assign work is a ‘tangible employment action’ because it is a decision that can ‘inflict direct economic harm’ by causing a ‘significant change in benefits’” and that, by virtue of the custodial foreman’s “power…to even allow [plaintiff] to work, he could effect a ‘tangible employment action’ by setting her hours and hence her pay.” The Third Circuit further determined that questions of fact existed as to whether the plaintiff sustained a “tangible employment action,” noting that there were many ways her work hours could be viewed. For example, the plaintiff worked 94 hours in the three pay periods prior to rejecting the foreman’s advances and 62.5 hours in the three pay periods thereafter. Therefore, a reasonable juror could conclude that the foreman “[g]ave [plaintiff] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him) versus the fact that she received approximately the same number of hours in December as she did in January, after she rejected his advance (wherein a reasonable juror could also conclude that he “did not reduce [plaintiff’s] hours at all following her rejection of his advances).” Based upon the language of this opinion, plaintiffs will continue to look to expand the concept of “supervisor” in connection with work assignments, even if those individuals are unable to hire or fire those plaintiffs.


Case Law Alerts, 4th Quarter, October 2017

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