Title VII Supervisory Status Requires More Than Authority To Direct Daily Activity
VANCE v. BALL STATE UNIVERSITY (June 3, 2011)
Ball State University's Dining Services department has employed Maetta Vance for over 20 years. She was a substitute server from 1989-91, a part-time catering assistant from 1991-2007, and now is a full-time catering assistant. She filed a lawsuit against the University in 2006 alleging Title VII claims of hostile work environment and retaliation. She included several specific allegations of hostile work environment, including: a) co-worker Davis hit her, b) supervisor Kimes made her feel unwelcome, c) co-worker Davis threatened her, d) co-worker McVicker used a racial epithet, e) co-worker McVicker called her a "porch monkey," and f) supervisor Adkins made faces at her. The University responded each time she filed a complaint. It disciplined McVicker for using the epithet. On other occasions, it found no basis for discipline. Her retaliation allegations related to diminished work duties and denial of overtime, and a reassignment to menial tasks in connection with her promotion. Judge Barker (S.D. Ind.) granted summary judgment to the University. Vance appeals.
In their opinion, Judges Bauer, Wood, and Sykes affirmed. The Court first addressed Vance's hostile work environment claim. The elements of that claim are that the work environment is objectively and subjectively offensive, that the conduct was based on race, that it was either severe or pervasive, and that there was employer liability. With respect to employer liability, a plaintiff must either show that the harassment came from supervisors or that the employer was negligent in discovering or fixing the situation. The Court rejected supervisor liability. First, Davis was not her supervisor. Although other circuits have expanded the supervisor term to include persons with authority to direct daily activity, the Seventh Circuit has limited the term to those who have the authority to directly affect the terms and conditions of employment. Second, Adkins was her supervisor but did nothing more than make ugly faces at her. Third, Kimes was her supervisor and may have engaged in sufficient harassment to create employer liability but there was no evidence that his harassment was based on Vance's race. In the absence of supervisor harassment, the Court turned to co-worker harassment. It concluded that Vance could not establish that the University failed to take reasonable steps to discover and correct the harassment. Every time she made a complaint, the University investigated and responded appropriately. The Court turned to the retaliation claim. Ironically, Vance's retaliation claim is based on her promotion. She admitted that she received more pay and benefits but alleged that her responsibilities were diminished. The Court concluded that the promotion was not a materially adverse employment action. Although she may have enjoyed it less, she sought it out knowing that the responsibilities would be different from her prior position. The only other employee occupying the position had similar responsibilities. Finally, the Court rejected her claim that the University retaliated against her by giving her fewer overtime hours. Although she did work fewer overtime hours than her co-worker, the two were not similarly situated. Her co-worker worked more regular hours, was available more often, and took fewer sick days and leaves of absence.
Lesley Stephens, an African American, has worked for the City of Chicago since 1979, except for a disability leave from 1988-1993. He has been a truck driver, an acting foreman, and an accident adjuster, all within the Department of Fleet Management. He filed a lawsuit against the City in 1997, alleging that it engaged in racially discriminatory hiring and promotion practices. Shortly after he settled the lawsuit in 2004, Stephens applied for four promotions. He was passed over each time. He again brought suit, alleging violations of § 1981 and Title VII. He claims that the City retaliated against him for his earlier lawsuit and his complaints of discrimination. The district court granted summary judgment to the City. Stephens appeals.
Dynetta Cole was a receptionist for the State of Illinois. Her first year on the job was marked with many complaints about her performance, attendance and personality. After she was injured in a car accident, she took FMLA medical leave. She returned to work on a part-time basis after several weeks. Her performance and attendance issues continued. Cole’s supervisors ultimately presented her with an "employee improvement plan." The plan identified her attitude, her attendance and her performance as targeted areas for improvement. The plan required her to communicate more frequently about her schedule, become more aware of her tone and plan her daily schedule more efficiently. Her supervisors told Cole that she would be fired if she did not sign the plan. Cole refused to sign the plan -- Cole was fired. Cole brought suit against the State and her supervisors alleging retaliation for exercising her FMLA rights. The district court granted summary judgment to the defendants. Cole appeals.