Tenth Circuit Tackles Supervisor Issue

In Vance v. Ball State Univ., 133 S.Ct. 2434, 2441 (2013), the Supreme Court resolved a conflict among the circuits regarding what level of authority a harasser must have in order to qualify as a supervisor under Title VII in the context of a claim of sexual harassment.  However, there remain questions as to how to apply the Supreme Court’s directive in Vance.  Just this week, the Tenth Circuit addressed some of these issues in Kramer v. Wasatch County Sheriff’s Office, et al., No. 12-4058 (February 25, 2014), finding that a bailiff’s immediate supervisor who had engaged in egregious acts of sexual harassment toward her could be a supervisor under Title VII.

The plaintiff Camille Kramer worked as a jailor and a bailiff for Wasatch County Sheriff’s Department.   Early in her employment, while working as a jailor, Kramer was subjected to sexual harassment in the form of offensive comments and crude behavior.  Kramer subsequently became a bailiff and was under the supervision of another bailiff, Sergeant Benson.  Sergeant Benson was responsible for managing the other two bailiffs and was in charge of completing performance evaluations for the other two bailiffs, however, he did not have the authority to hire, fire, promote or demote the other bailiffs, only to recommend such actions to the sheriff.

Sergeant Benson sexually harassed Kramer throughout her employment under his supervision.  He regularly harassed her verbally, sexually assaulted her repeatedly, and even raped her.  Sergeant Benson told her that she better be quiet about the assaults and rape and that saying anything would be a “career ender” and behaved in a controlling and intimidating manner, failing to relieve her when he had promised to do so and preparing a negative performance evaluation of her, only changing it when she challenged it, saying that she better keep her mouth shut and everything would be fine.

Kramer sued the county, asserting that the sexual harassment from Sergeant Benson constituted sex discrimination.  The district court granted summary judgment to the county. Among other grounds, one of the bases for summary judgment was the court’s finding that Sergeant Benson was not her supervisor for Title VII purposes because he did not have authority to fire her and that the supervisor status could not be premised on apparent authority because no reasonable juror could find that it was reasonable of her to think he did have the power to fire her.   The Tenth Circuit disagreed with the district court regarding this issue, finding that there was a material issue of fact as to whether Sergeant Benson was Kramer’s supervisor.

In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759-61 (1998), the Supreme Court explained that a harasser may be considered a supervisor under Title VII if he or she possesses some amount of actual or apparent authority over the employee.  However, as the Tenth Circuit explained, the Supreme Court “did not specify exactly how much authority a harasser had to have (or appear to have) to qualify as a supervisor” and there was a split in the circuits as to this issue.  Kramer, No. 12-4058, p. 17.  The Supreme Court resolved that split in Vance v. Ball State Univ., 133 S.Ct. 2434, 2441 (2013), holding that a supervisor is an employee whom “the employer has empowered  . . . to take tangible actions against the victim, i.e. to effect 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. “    The employee did not necessarily have to be empowered to take such tangible actions directly to qualify as a supervisor, but a manager who works closely with subordinates and has the power to recommend or otherwise substantially influence tangible employment actions and thus can indirectly effectuate them is also a supervisor.  Id. at 2452.

In Kramer, the Tenth Circuit analyzed what a tangible employment action is, explaining that it does not just include firing or demoting, but also giving a lesser title, a material loss of benefits or other unique indices.  Kramer, at p. 20.  Further, a tangible employment action requires some sort of official or company act.  Id.  As the court explained, “[o]ne common sense test that can illuminate whether a given harm is a tangible employment action is to ask whether a co-worker could have inflicted the same harm as easily.  If the answer is yes, then the harm is not a tangible action.”  Id.

The Tenth Circuit found that there were fact questions as to whether Sergeant Benson was Kramer’s supervisor.  Sergeant Benson was the only person responsible for Kramer’s performance evaluations and those evaluations could cause her to be promoted, demoted or fired.  Further, Sergeant Benson could recommend to the sheriff that any of his supervisees be fired, could create a corrective action plan for a supervisee.  The Tenth Circuit also pointed out that the fact that the harasser here was empowered to effect significant changes in employment status indirectly through recommendations and performance evaluations, and the person who did have final decision-making authority (here, the sheriff), does not work directly with the plaintiff, this supports a finding that the harasser is a supervisor.  Id. at 24.  The Tenth Circuit also found that Sergeant Benson could qualify as a supervisor under apparent authority principles, considering such facts as that the sheriff considered Sergeant Benson to be the supervisor, Sergeant Benson worked on the same site with Kramer every day and was her only immediate manager, he could direct her to do different tasks, decide when she worked and whether she got leave.  Id. at 28-29.  Based on all of these reasons, the court concluded that summary judgment was not appropriate as there were facts in dispute as to whether Sergeant Benson was Kramer’s supervisor, under actual or apparent authority principles.

This case provides some important guidance as to what constitutes a supervisor in the wake of Vance. Even in a situation where an employee does not have outright control over important employment actions (like hiring or firing), employers need to be aware that that person can still be considered a supervisor under Title VII and potentially subject them to liability.  At the very least, an employee will have a good shot at creating a factual dispute regarding the level of authority.