WASHINGTON, D.C. - (Mealey's) The "supervisor" liability rule established in Faragher v. City of Boca Raton (524 U.S. 775  [enhanced version available to lexis.com subscribers]) and Burlington Indus., Inc. v. Ellerth (524 U.S. 742  [enhanced version]) 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] [enhanced version]), 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.).
(Oral arguments transcript available. Document #73-121214-004T.)
"[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 because Davis 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 around.
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 with Vance.
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 comment.
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. Supreme Court.
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 State University 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 Washington 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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