WASHINGTON, D.C. - (Mealey's) The "supervisor" liability
rule established in Faragher v. City of Boca Raton (524 U.S. 775 )
and Burlington Indus., Inc. v. Ellerth (524 U.S. 742 ) should
apply to harassment by supervisors even if they have no power to "hire, fire,
demote, promote, transfer, or discipline" their victim as long as they fall
within the Second Circuit U.S. Court of Appeals' "materially augments rule" as
established in Mack v. Otis Elevator Co. (326 F.3d 116, 125 [2d Cir.
2003]), a petitioner argued before the U.S. Supreme Court Nov. 26 (Maetta
Vance v. Ball State University, et al., No. 11-556, U.S. Sup.; See July
2012, Page 55) ((lexis.com subscribers may access an enhanced version of the 7th Circuit opinion under review) and the Supreme Court briefs for this case.).
"[The supervisor's authority] has to be sufficient to
enable the harasser to instill either fear in the victim that the victim should
not turn the harasser in, or that it may have to do with the harasser's ability
to control the physical location of the victim. That can augment
harassment. If a harasser can steer a victim to a location where the
harasser has an opportunity to harass, and, indeed, may have an opportunity to
harass without other employees or other people in the company seeing in, that
would materially augment," Daniel R. Ortiz of University of Virginia School of
Law Supreme Court Litigation Clinic in Charlottesville, Va., who represents
employee Maetta Vance, argued.
Vance was hired by Ball State University in 1989 as a substitute
server in the Banquet and Catering Department of University Dining
Services. In 1991, Ball
State promoted Vance to a
part-time catering assistant position. In January 2007, Vance applied and
was selected for a position as full-time catering assistant.
In 2001, Saundra Davis, a co-worker, hit Vance on the
back of the head without provocation. The two were discussing a
work-related duty when Davis
became aggressive, shouted at Vance and slapped Vance as she turned away.
Vance orally complained to her supervisors but ended up not pursuing the matter
was soon transferred to another department.
Around the same time, Bill Kimes became Vance's
supervisor. She claimed that Kimes gave her the cold shoulder, made her
feel unwelcome at work and treated other employees to lunch when she was not
Vance claimed that things at her job took a turn for the
worse in 2005 when Davis
returned to the Banquet and Catering Department and the two had an altercation
on Sept. 23, 2005. A few days later, Vance was told by another employee
that another co-worker, Connie McVicker, used a racial epithet to refer to
Vance and other black students on campus and boasted that her family had ties
to the Ku Klux Klan.
On Sept. 26, 2005, Vance complained orally to her
supervisor about McVicker's alleged statements, and on Oct. 17, 2005, Vance
called University Compliance to request a complaint form. While
requesting the form, Vance complained about McVicker's racially offensive
comments and Davis'
slap four years earlier. In November 2005, Vance submitted a written
complaint detailing McVicker's comments and the Sept. 23, 2005, altercation
Ball State began investigating Vance's
complaint about McVicker immediately. In the end, Kimes gave McVicker a
written warning and advised McVicker that additional violations would lead to
further disciplinary action.
A few days later, Vance complained to another supervisor,
Lisa Courtright, that McVicker referred to her as a "porch monkey."
Courtright advised Vance to tell Kimes, which Vance did. Kimes
investigated by speaking to another co-worker who Vance said witnessed the
incident. But that co-worker did not corroborate Vance's
allegation. In the end, Kimes did not discipline McVicker for the alleged
As for Vance's complaint about Davis,
Kimes and his supervisor decided that counseling both employees about respect
in the workplace was the best way to proceed because Davis had also filed a complaint alleging
that Vance cursed at her. No one was disciplined for the incident.
Around the same time, Vance claimed that Davis
made references to "Sambo" and "Buckwheat" while having a conversation with
another co-worker in Vance's presence. Vance was offended but did not
complain to the university at that time.
In December 2005, Vance told Kimes that she felt
threatened and intimidated by her co-workers. A week later, Vance filed a
charge with the Equal Employment Opportunity Commission, alleging race, gender
and age discrimination.
On May 10, 2006, Vance filed a complaint with Ball State,
alleging that Kimes forced her to work through breaks. Ball State
investigated but found no factual basis for Vance's allegation. In August
2006, Vance filed a second complaint with the EEOC, alleging that Ball State
retaliated against her by assigning her diminished work duties, forcing her to
work through breaks, denying her the chance to work overtime hours and
unequally disciplining her.
She filed a federal complaint against Ball State
in the U.S. District Court for the Southern District of Indiana in October
2006. While her case was pending, Ball State
promoted Vance to the position of full-time catering assistant. But her
problems continued. In April 2007, Vance filed a grievance against
McVicker. Three supervisors investigated. No one was disciplined.
The District Court ruled in favor of Ball State,
and Vance appealed. After the Seventh Circuit U.S. Court of Appeals
affirmed the District Court ruling on June 3, 2011, Vance petitioned the U.S.
Representing the United States, as amicus curiae,
in support of neither party, Deputy Solicitor General Sri Srinivasan told the
justices during oral arguments that "[w]hen a person controls a subordinate's
daily work activities and subjects her to harassment, that person qualifies as
a supervisor for purposes of the Faragher-Ellerth vicarious liability
affirmative defense framework. When it controls daily work activities
and, therefore, for example, can compel the cleaning of toilets for a year, the
principle that the agency relationship augments the ability to carry out the
harassment is implicated in that the victim will lack the same ability to
resist the harassment or to report it as would be the case if the harassment
were conducted by a coworker."
Representing the university, Gregory G. Garre of Latham
& Watkins in Washington
argued that the Seventh Circuit's ruling should be affirmed "because the record
establishes that the only employee whose status is at issue lacked the
supervisory authority necessary to trigger vicarious liability under Title VII
[of the Civil Rights Act of 1964]."
He further argued that when applying "the 'materially
enables the harassment' standard, it's clear that Ms. Davis, the person who is
at issue, does not qualify as a supervisor. And the reason why it's clear
is the record is uncontradicted that either the chef or Mr. Kimes made the
daily assignments through the prep sheets. . . . It's also
absolutely clear that Mr. Kimes was the one who controlled the schedule in the
kitchen. He is the one that told the employees what times of days that
they could work. He controlled the schedule."
Ortiz and David T. Goldberg of Donahue & Goldberg in New York represent
Vance. Garre and Scott E. Shockley of DeFur Voran in Muncie,
Ind., represent Ball State.
Lisa S. Blatt of Arnold & Porter in Washington
filed an amicus brief on behalf of the Chamber of Commerce of the United States of America.
Ian P. Cooper of St. Louis
filed an amicus brief on behalf of the American Council on Education and
other higher education organizations. Sarah C. Crawford of National
Partnership for Women & Families in Washington
filed an amicus brief on behalf of the National Partnership for Women
& Families, et al. Michael L. Foreman of Pennsylvania
in University Park, Pa., filed an amicus brief on behalf
of the National Employment Lawyers Association and AARP. Benjamin G.
Robbins of New England Legal Foundation in Boston filed an amicus brief on behalf
of New England Legal Foundation. Leslie E. Silverman of Proskauer Rose in
filed an amicus brief on behalf of Society for Human Resource Management
and the College and University Professional Association for Human
Resources. James B. Spears Jr. of Charlotte, N.C., filed an amicus
brief on behalf of National Retail Federation. Rae T. Van of Norris,
Tysse, Lampley & Lakis in Washington
filed an amicus brief on behalf of the Equal Employment Advisory
Council. Solicitor General Donald B. Verrilli Jr. in Washington
filed an amicus brief on behalf of the United States.
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