PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-4373

______________

MICHELLE MOODY,

Appellant

v.

ATLANTIC CITY BOARD OF EDUCATION

______________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-14-cv-04912)

District Judge: Hon. Joseph H. Rodriguez

______________

Argued July 12, 2017

______________

Before: GREENAWAY, JR., SHWARTZ, and RENDELL,

Circuit Judges.

(Filed:September 6, 2017)
2

Samuel A. Dion, Esq. [ARGUED]

Dion & Goldberger

1845 Walnut Street

Suite 1199

Philadelphia, PA 19103

Counsel for Appellant

Rachel M. Conte, Esq. [ARGUED]

Tracy L. Riley, Esq.

Law Offices of Riley and Riley

100 High Street

Suite 302

Mount Holly, NJ 08060

Counsel for Appellee

______________

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Michelle Moody sued the Atlantic City Board of 

Education (“Board”) for sexual harassment and retaliation 

pursuant to Title VII, 42 U.S.C. §§ 2000e-2(a)(1), 3(a), and the 

New Jersey Law Against Discrimination (“NJLAD”), N.J. 

Stat. Ann. §§ 10:5-12(a), (d). The District Court granted 

summary judgment to the Board, finding that the alleged 

harasser, Maurice Marshall, was not Moody’s supervisor. 

Because Marshall was empowered to determine whether

Moody worked at New York Avenue School, which had a 

direct impact on her pay, and the record reveals no one else 

provided supervision, the District Court erred in concluding 

Marshall was not her supervisor. In addition, because there are 
3

disputed facts concerning whether Moody sustained a tangible 

employment action, and because the Board’s defense rests in 

part on the resolution of this issue, the District Court 

prematurely considered the availability of the Ellerth/Faragher

defense. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 

(1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 

Therefore, we will vacate and remand. 

I1

In November 2011, the Board approved Moody’s hiring 

as a substitute custodian. As a substitute custodian, Moody 

filled in for full-time custodians but was not guaranteed any 

work. During the 2011-2012 school year, Moody was rarely 

scheduled to work and in the summer of 2012, she asked a 

Board employee how to obtain more work. The employee 

suggested that Moody introduce herself to the custodial 

foremen at the schools within the district. Each school had a 

custodial foreman who was delegated the authority to select 

which substitute custodians worked at the school. 

Around September 2012, Moody introduced herself to 

approximately ten custodial foremen at different schools, 

including Marshall, the custodial foreman at New York 

Avenue School. By October 2012, Marshall was assigning 

Moody regular work. Moody also met the custodial foreman

at Pennsylvania Avenue School and occasionally worked 

there. The Board concedes that when Moody was working at 

 1 Because we are reviewing a summary judgment 

record, we view the facts and make all reasonable inferences 

in Moody’s favor. Hugh v. Butler Cty. Family YMCA, 418 

F.3d 265, 266-67 (3d Cir. 2005). 
4

New York Avenue School, Marshall was acting in a

supervisory capacity. Oral Argument at 18:07-18:30, Moody 

v. Atl. City Bd. of Educ. (3d Cir. July 12, 2017) (No. 16-4373), 

http://www.ca3.uscourts.gov/oral-argument-recordings

(counsel for the Board stating that “it’s reasonable that if 

Moody was called in by Marshall that day, and Marshall was 

the foreman at the school in charge of all the custodians, I think 

that it’s reasonable that during that day he could be considered

[to be] in a supervisory position”). The record does not 

indicate that anyone other than Marshall supervised Moody’s 

work at New York Avenue School.

Moody claims that, around the end of October 2012, 

Marshall began making sexual comments to her and told her 

that he would assign her more hours if she performed sexual 

favors for him. According to Moody, Marshall “would often 

be very touch feely and grab [Moody’s] breasts or buttocks at 

the work place.” App. 123. Moody testified that: (1) in early 

November 2012, Marshall called Moody into his office and 

tried to remove her shirt; (2) in late November, Marshall called 

Moody into his office, where Moody found Marshall sitting 

unclothed on his office chair; and (3) in December 2012, 

Marshall grabbed Moody, pulled her towards him, and stated 

“[y]ou want more hours?” App. 216. On December 27, 2012, 

Marshall and Moody exchanged the following text messages:

[Marshall:] U playing

[Marshall:] Well

[Marshall:] Ok ill hit u when I go to work

[Moody:] In the am?

[Marshall:] No tonight my other job am I getting 

all three holes

[Moody:] No the hell u not
5

[Marshall:] How’s penn treating u

[Marshall:] U got steady work and that’s where 

the contracts going to be at

[Marshall:] I got u

App. 127-28. Moody interpreted these text messages to mean 

that Marshall could help her obtain a full-time contract to work 

at Pennsylvania Avenue School if she acquiesced to his sexual

advances. Moody said that Marshall came to Moody’s house 

that evening and told her that she would get an employment 

contract if she had sex with him. Marshall grabbed her and 

began to kiss her. Moody “felt that [her] job had been 

threatened,” and therefore she gave into Marshall’s unwelcome 

advances and reluctantly had sex with him. App. 217. In the 

days following this encounter, Moody told Marshall that it 

would never happen again. 

Despite her rebuke, Moody received assignments at 

New York Avenue School on December 30, 2012 and January 

4, 7, 8, 11, 14, 15, and 22, 2013. Moody, however, believed 

that Marshall treated her differently after she rejected him. On 

January 23, 2013, for example, Moody went to New York 

Avenue School to pick up her paycheck from Marshall. At the 

time, Marshall was playing ping pong and would not retrieve 

the check for her until he finished the game. Moody also

noticed that Michelle McArthur, a new female substitute 

custodian, appeared to be receiving hours instead of her.2

 

Further, another custodian told Moody that she was on 

 2 The payroll records in fact show that, in January 2013,

Moody received no hours at New York Avenue School after 

January 22 and that McArthur received work on January 23, 

24, 25, 28, and 29. 
6

Marshall’s “shit list.”3

 App. 119. Later that day, Marshall and 

Moody exchanged the following text messages:

[Moody:] U don’t gotta act like that towards me, 

I understand your upset at me but, outside of that 

Im a good worker, but, Its cool

[Marshall:] Wt are u talking about, I’m not into 

the drama

[Moody:] Just making sure Im not on ya so call 

“shit list”

[Marshall:] U are but not like that I won’t stop u 

from getting I don’t play games like that

App. 131. Moody believed that Marshall delayed retrieving 

her paycheck and reduced her hours because she had rejected 

his sexual advances, and she exchanged more text messages 

with Marshall to that effect on January 29, 2013. In these 

exchanges, Marshall seemed to deny having sex with Moody 

and asserted that Moody just said this because she was angry 

that he delayed retrieving her check. Moody retorted “I have 

all the text messages and my parents saw u when u came to my 

house.” App. 135.

4

 

On February 4, 2013, Moody met with Sherry Yahn, the 

Board’s Assistant Superintendent, and informed Yahn that 

Marshall had been sexually harassing her. Yahn immediately 

 3 The custodian to whom Moody attributed this 

comment denied making it.

4 During his deposition, Marshall denied sexually 

harassing Moody. In addition, eight custodians at New York 

Avenue School stated that they had not witnessed any 

inappropriate behavior on the part of Marshall or Moody. 
7

took Moody to Human Resources (“HR”) to file a written 

complaint. HR subsequently began an investigation into 

Moody’s complaint and ordered Moody and Marshall not to 

have contact with each other during the investigation.5

 

HR’s March 2013 report of its investigation states that 

it interviewed Moody, Marshall, and eight custodians at New 

York Avenue School, but it did not reach a conclusion as to 

whether Moody was sexually harassed. Later that month, 

Moody filed a charge of discrimination with the Equal 

Employment Opportunity Commission.

The Board hired an outside law firm to conduct an 

independent investigation of Moody’s claims. After 

considering the HR report and conducting further interviews, 

the firm issued a report in July 2013 finding that Moody was 

not subjected to sexual harassment or discrimination. The 

Board informed Moody of these findings but nonetheless 

ordered Marshall and Moody to avoid any contact with each 

other. 

Moody filed a complaint against the Board in the United 

States District Court for the District of New Jersey, raising 

claims of sexual harassment and retaliation in violation of Title 

 5 Moody’s hours decreased in the months after she 

complained about Marshall. Compare App. 181-82 (showing 

that Moody was assigned to work 62 hours in October 2012, 

115.5 hours in November 2012, 126.5 hours in December 

2012, and 56 hours in January 2013), with App. 182 (showing 

that Moody was assigned to work 36 hours in February 2013, 

23 hours in March 2013, 32.5 hours in April 2013, and 24 hours 

in May 2013). 
8

VII and the NJLAD. Moody alleged that the Board subjected 

her to sexual harassment through Marshall and retaliated 

against her for complaining about the harassment.

6

 The 

District Court found that Marshall was not Moody’s supervisor 

and so the Board was not liable for his actions and, in any 

event, Moody did not show she suffered a tangible 

employment action. The District Court also found that because 

the Board took prompt action upon receipt of her complaint, it 

was entitled to the Ellerth/Faragher affirmative defense. As a 

result, the District Court granted summary judgment in the 

Board’s favor.

 Moody appeals.

II7

We must decide whether the District Court erred by 

granting the Board’s motion for summary judgment on 

Moody’s sexual harassment and retaliation claims. Our review 

of the District Court’s order granting summary judgment is 

plenary. Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 

413, 418 (3d Cir. 2013). We apply the same standard as the 

District Court, viewing facts and making all reasonable 

inferences in the non-movant’s favor. Hugh v. Butler Cty. 

Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005). 

Summary judgment is appropriate where “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute 

“is genuine only if there is a sufficient evidentiary basis on 

 6 Moody initially alleged that the Board retaliated 

against her by transferring her children to different schools, but 

she has since abandoned that theory. 7 The District Court had jurisdiction under 28 U.S.C. §§ 

1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. 
9

which a reasonable jury could find for the non-moving party, 

and a factual dispute is material only if it might affect the 

outcome of the suit under governing law.” Kaucher v. County 

of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving 

party is entitled to judgment as a matter of law when the nonmoving party fails to make “a sufficient showing on an 

essential element of her case with respect to which she has the 

burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). 

III

A

Title VII and the NJLAD prohibit sexual harassment 

because it is a form of sex discrimination.8 Meritor Sav. Bank, 

FSB v. Vinson, 477 U.S. 57, 65-66 (1986); Lehmann v. Toys 

‘R’ Us, Inc., 626 A.2d 445, 452 (N.J. 1993).

9

 At oral argument, 

 8 Under Title VII, it is unlawful for an employer “to 

discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual’s . . . sex.” 42 U.S.C. § 2000e2(a)(1). Under the NJLAD, it is unlawful “[f]or an employer, 

because of the . . . sex . . . of any individual . . . to discriminate 

against such individual in compensation or in terms, conditions 

or privileges of employment.” N.J. Stat. Ann. § 10:5-12(a). 

9 The New Jersey Supreme Court “has frequently 

looked to federal precedent governing Title VII” to interpret 

and apply the NJLAD. Lehmann v. Toys ‘R’ Us, Inc., 626 

A.2d 445, 452 (N.J. 1993). 
10

Moody stated that she is proceeding based upon a hostile work 

environment theory of sexual harassment.

10 

“To succeed on a hostile work environment claim

[against the employer], the plaintiff must establish that 1) the 

employee suffered intentional discrimination because of 

his/her sex, 2) the discrimination was severe or pervasive, 3) 

the discrimination detrimentally affected the plaintiff, 4) the 

discrimination would detrimentally affect a reasonable person 

in like circumstances, and 5) the existence of respondeat 

superior liability.” Mandel v. M & Q Packaging Corp., 706 

F.3d 157, 167 (3d Cir. 2013) (citation omitted); see also

Lehmann, 626 A.2d at 453 (setting forth elements of a hostile 

work environment claim under the NJLAD).11 

 10 A plaintiff may also bring a sexual harassment claim 

pursuant to a “quid pro quo” theory. See Lehmann, 626 A.2d 

at 452 (explaining that quid pro quo sexual harassment 

“involves an implicit or explicit threat that if the employee does 

not accede to the sexual demands, he or she will lose his or her 

job, receive unfavorable performance reviews, be passed over 

for promotions, or suffer other adverse employment 

consequences”).

11 In Farrell v. Planters Lifesavers Co., we left open the 

question of whether the burden-shifting framework of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

would apply in the context of a quid pro quo sexual harassment 

claim, and we have not yet spoken on whether the framework 

would apply to hostile work environment claims. 206 F.3d 

271, 286 n.11 (3d Cir. 2000). Under McDonnell Douglas, once 

a plaintiff makes out a prima facie case of discrimination that 

resulted in an adverse employment action, the burden shifts to 

the defendant to show there was a legitimate nondiscriminatory 
11

Viewed in a light most favorable to her, Moody’s 

testimony about Marshall’s sexual actions and his comments 

 

reason for the adverse employment action. 411 U.S. at 802. If 

the defendant can articulate such a reason, the plaintiff is 

afforded an opportunity to show the reason is pretextual. Id. at 

804-05. Some of our sister circuits have concluded that the 

McDonnell Douglas framework does not apply in hostile work 

environment sexual harassment cases. See Pollard v. E.I. 

DuPont de Nemours Co., 213 F.3d 933, 943 (6th Cir. 2000)

(explaining that the McDonnell Douglas framework cannot 

apply to a hostile work environment sexual harassment claim 

because “there is no legitimate justification for such an 

environment, and thus recourse to the McDonnell Douglas test 

is not warranted”), rev’d on other grounds, 532 U.S. 843 

(2001); Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 

1417 n.8 (10th Cir. 1993) (concluding that the plaintiff’s 

failure to rebut the employer’s legitimate, nondiscriminatory 

reason for her termination was not relevant to a hostile work 

environment claim), overruled on other grounds by Nat’l R.R. 

Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also

Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 

501, 510–11 (11th Cir. 2000) (concluding that the district court 

erred in applying the McDonnell Douglas framework to nonretaliation sexual harassment claims, and explaining that the 

Ellerth Court made no mention of McDonnell Douglas and that 

sexual harassment cases have developed separately from other 

claims under Title VII). We agree that the burden-shifting 

framework is inapplicable here because, as the Pollard court 

explained, there can be no legitimate justification for a hostile 

work environment. 213 F.3d at 943. Therefore, we will not 

apply the McDonnell Douglas burden-shifting framework to 

Moody’s hostile work environment claim.
12

about her body supports her claim that Marshall’s harassment 

occurred “because of [Moody’s] sex.” See Andrews v. City of 

Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (“The 

intent to discriminate on the basis of sex in cases involving 

sexual propositions, innuendo, pornographic materials, or 

sexual derogatory language is implicit, and thus should be 

recognized as a matter of course.”), superseded in part by 

statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 

Stat. 1072; Lehmann, 626 A.2d at 454 (“When the harassing

conduct is sexual or sexist in nature, the but-for element will 

automatically be satisfied. Thus when a plaintiff alleges that 

she has been subjected to sexual touchings or comments . . . 

she has established that the harassment occurred because of her 

sex.”). 

Viewed from the same perspective, Marshall’s conduct 

toward Moody, if proven, could be viewed by a reasonable 

juror as sufficiently “severe or pervasive” to support a hostile 

work environment claim. The “severe or pervasive” standard 

requires conduct that is sufficient “to alter the conditions of 

[the employee’s] employment and create an abusive working 

environment.”12 Meritor, 477 U.S. at 67 (citation and internal 

 12 The “severe or pervasive” standard is disjunctive and 

so “a plaintiff need not show that her hostile working 

environment was both severe and pervasive; only that it was 

sufficiently severe or sufficiently pervasive, or a sufficient 

combination of these elements, to have altered her working 

conditions.” Pucino v. Verizon Wireless Commc’ns, Inc., 618 

F.3d 112, 119 (2d Cir. 2010) (emphasis omitted); see also

Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017)

(clarifying that “[t]he correct standard is severe or pervasive”

and explaining that “severity and pervasiveness are alternative 
13

quotation marks omitted). The question of “whether an 

environment is sufficiently hostile or abusive must be judged 

by looking at all the circumstances, including the frequency of 

the discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere offensive 

utterance; and whether it unreasonably interferes with an 

employee’s work performance.” Clark Cty. Sch. Dist. v. 

Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal 

quotation marks omitted). 

Moody testified that, in addition to the times Marshall

made sexually charged comments to her and grabbed her, 

Marshall once called her into his office and, when she entered, 

she found Marshall sitting naked on a chair. On another 

occasion, Marshall allegedly called Moody into his office and 

attempted to take her shirt off. At another point, Marshall sent 

her a text message stating “am I getting all three holes” and 

thereafter showed up at her house uninvited and pressured her 

into having sex with him by threatening her job. App. 127; cf.

Jin v. Metro. Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002) 

(“Requiring an employee to engage in unwanted sex acts is one 

of the most pernicious and oppressive forms of sexual 

harassment that can occur in the workplace.”). Although 

 

possibilities: some harassment may be severe enough to 

contaminate an environment even if not pervasive; other, less 

objectionable, conduct will contaminate the workplace only if 

it is pervasive” (citation and internal quotation marks

omitted)); Lehmann, 626 A.2d at 455 (explaining that the 

severe or pervasive test is “disjunctive” and “[t]he required 

showing of severity or seriousness of the harassing conduct 

varies inversely with the pervasiveness or frequency of the 

conduct” (citation and internal quotation marks omitted)).
14

Marshall denies this conduct, we must view the facts in 

Moody’s favor. Hugh, 418 F.3d at 266-67. From this 

perspective, Moody’s account provides sufficient evidence 

upon which a reasonable juror could conclude that she

experienced severe harassment, and their different accounts of 

these events present disputed material facts for a jury to 

resolve. 

Moody’s account, if proven, could also provide a basis 

from which a reasonable juror could infer that Marshall’s 

conduct detrimentally affected Moody and would have 

affected a reasonable person in similar circumstances. 

Moody’s testimony suggests that she “subjectively perceive[d] 

the environment to be abusive.” Harris v. Forklift Sys., Inc., 

510 U.S. 17, 21 (1993). She testified that she believed 

Marshall expected to trade sexual favors for work and would 

seek retribution if she did not accede to his demands, and that 

he made her uncomfortable when he grabbed her and when he

invited her to his office while he was unclothed. A reasonable 

person would likely also find such an environment “objectively 

hostile or abusive,” id., because it is one where a perceived 

supervisor expected his subordinate to give sexual favors in 

exchange for work, touched a subordinate against her wishes, 

made sexual comments to her, and exposed himself to her.

Finally, since Moody sued the Board and not Marshall, 

we must consider whether there are disputed facts concerning 

the existence of respondeat superior liability. On this point, we 

look to agency principles and the Restatement (Second) of 

Agency § 219 for guidance.13 Ellerth, 524 U.S. at 755-58. In 

 13 Section 219 of the Restatement provides: 
15

discussing § 219(1), the Ellerth Court observed that “[t]he 

general rule is that sexual harassment by a supervisor is not 

conduct within the scope of employment” but that, under 

§ 219(2), “[i]n limited circumstances, agency principles 

impose liability on employers even where employees commit 

torts outside the scope of employment.” Id. at 757-58. Most 

relevant here, under § 219(2)(d), a master may be subject to 

liability even when employees act outside the scope of their 

employment if they were “aided in accomplishing the tort by 

the existence of the agency relation.” Restatement (Second) of 

Agency § 219(2)(d) (Am. Law Inst. 1958). 

This “aided-in-the-accomplishment rule” can impose 

liability on employers for a supervisor’s harassment. Liability 

 

(1) A master is subject to liability for the torts of 

his servants committed while acting in the scope 

of their employment.

(2) A master is not subject to liability for the torts 

of his servants acting outside the scope of their 

employment, unless:

(a) the master intended the conduct or the 

consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty 

of the master, or

(d) the servant purported to act or to speak on 

behalf of the principal and there was reliance 

upon apparent authority, or he was aided in 

accomplishing the tort by the existence of the 

agency relation. 

Restatement (Second) of Agency § 219 (Am. Law Inst. 1958). 
16

here is predicated upon the idea that the supervisor is able to 

take an employment action only because he or she is the 

employer’s agent. Thus, “[w]hen a supervisor takes a tangible 

employment action” against a subordinate, the employer is 

vicariously liable because “the injury could not have been 

inflicted absent the agency relation.” Vance v. Ball State 

Univ., 133 S. Ct. 2434, 2442 (2013) (citations and internal 

quotation marks omitted); see also id. (noting that a supervisor, 

as opposed to a co-worker, is in a sense always “aided by the 

agency relation” because “a supervisor’s power and authority 

invests his or her harassing conduct with a particular 

threatening character”). An employee is a supervisor for 

purposes of respondeat superior liability pursuant to Title VII

if he or she is “empowered by the employer to take tangible 

employment actions.” Id. at 2439. A “tangible employment 

action” is “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.” Ellerth, 524 U.S. at 761.

There is no dispute that Marshall had the authority to 

decide whether to summon Moody to work at New York 

Avenue School because the Board granted him that authority 

as the custodial foreman. In fact, a Board employee suggested 

that Moody introduce herself to the custodial foremen as a 

means to obtain work assignments.14 The authority to assign 

 14 While the District Court and the Board are correct that 

Marshall was only one of multiple custodial foremen within 

the school district who could have assigned Moody work, we 

are aware of no authority indicating that an employee cannot 

have multiple supervisors. Such a rule would lead to the absurd 

result that employees with multiple managers have no 
17

work is a “tangible employment action” because it is a decision 

that can “inflict[] direct economic harm,” Ellerth, 524 U.S. at 

762, by “causing a significant change in benefits,” Vance, 133 

S. Ct. at 2443. Given Marshall’s power as a custodial foreman 

to even allow Moody to work, he could effect a “tangible 

employment action” by setting her hours and hence her pay. 

See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 

1227, 1231 (11th Cir. 2006) (“A reduction in an employee’s 

hours, which reduces the employee’s take-home pay, qualifies 

as a tangible employment action.”). Marshall therefore had 

more than the power to direct Moody’s work or to have her 

stay beyond her shift or cover an extra shift. He had the 

authority to determine whether Moody worked at all if he 

needed a substitute custodian. Marshall could avoid calling 

Moody into work if he chose; and in fact he did so on multiple 

occasions when a substitute custodian was needed at New York 

Avenue School. See App. 168, 171 (suggesting that Marshall 

called Michelle McArthur in to work on January 23–25 and 

28–29 instead of Moody). Marshall had the authority to cause 

a significant change in Moody’s benefits by assigning her no 

 

“supervisors” for the purposes of Title VII and the NJLAD. 

Moreover, the fact that Marshall was unable to hire or fire 

employees is not dispositive of whether he is a supervisor. As 

we have explained, an employee capable of effecting a 

“tangible employment action” is a supervisor, Vance v. Ball 

State Univ., 133 S. Ct. 2434, 2439 (2013), and the concept of 

a tangible employment action extends beyond hiring and firing 

to decisions “causing a significant change in benefits,” 

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998), 

such as reduced work hours for an hourly worker, Cotton v. 

Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 

(11th Cir. 2006). 
18

hours, thereby eliminating her take-home pay. Thus, 

Marshall’s power to impact Moody’s earnings is sufficient to 

qualify him as a supervisor. See Cotton, 434 F.3d at 1231. 

Moreover, the Board conceded that while Moody was working

at New York Avenue School, Marshall was acting in a 

supervisory capacity. Oral Argument at 18:07-18:30, Moody 

v. Atl. City Bd. of Educ. (3d Cir. July 12, 2017) (No. 16-4373), 

http://www.ca3.uscourts.gov/oral-argument-recordings. 

Furthermore, no one else was identified in the record as having 

authority over Moody, other than the custodial foremen who 

could assign her work at their schools. While other foremen 

also could have arguably been Moody’s supervisors, Marshall 

assigned Moody over 70% of her hours from October 2012 

through February 2013.15 

In summary, the record here supports the conclusion 

that Marshall was Moody’s supervisor because (a) the Board 

empowered him as the custodial foreman to select from the list 

of substitute custodians who could actually work at New York 

Avenue School;16 (b) the Board conceded that while Moody 

 15 The Dissent suggests that, by considering the payroll 

records, the Majority is reverting to a pre-Vance rule for 

determining who is a supervisor. This is not the case. We are 

simply using the records to corroborate the conclusion that 

Marshall controlled a sizeable amount of Moody’s work, and 

hence her compensation—the benefit she received from her 

employment.

16 This is not to say that every employee tasked with 

creating a work schedule is a supervisor for Title VII and 

NJLAD purposes. See Vance, 133 S. Ct. at 2448 (“The ability 

to direct another employee’s tasks is simply not sufficient.”). 

The Dissent cites to not precedential opinions of other circuits
19

was on school premises, Marshall served in a supervisory role; 

(c) the record identifies no other person who was present full 

time or even sporadically on the school’s premises, or 

anywhere for that matter, who served as Moody’s supervisor; 

and (d) since Moody’s primary benefit from her employment 

was hourly compensation, and since Marshall controlled 70% 

of her hours, his decision to assign or withhold hours 

significantly affected her pay.17 Thus, the record shows that 

Marshall was Moody’s supervisor, as defined under Vance, for 

whose conduct the Board may be liable.18

 

discussing nonsupervisory employees, but we are bound by our 

precedent and our custom not to rely on not precedential 

opinions of our Court and, by extension, those of our sister 

circuits. See I.O.P. 5.7.

17 The Dissent says that the fact Moody was not entitled 

to any work, and hence not entitled to any benefits, means that 

she could not experience a change to her benefits. This implies 

that Moody would not be protected from sexual harassment no 

matter who was her supervisor. The law, however, protects 

workers from sexual harassment. Thus, while Moody was not 

guaranteed any work hours, and by extension had no 

guaranteed benefits, she, like other hourly workers covered by 

Title VII and the NJLAD, is guaranteed to be protected from 

sexual harassment by her supervisor. 

18 As is apparent, the Majority has not ignored Vance

but in fact heeded its instructions. Moreover, even under the 

Dissent’s articulation of Vance’s requirements, the outcome is 

the same: Marshall was Moody’s supervisor. The Dissent 

poses one of Vance’s considerations for determining whether 

a person is a supervisor as follows: “Could Marshall . . . make 

a decision that caused a significant change in [Moody’s] 

benefits?” Dissent at 6. The answer to this question is 
20

B

The Board argues that, even if Marshall was Moody’s 

supervisor and he harassed her, it would not be liable for his 

conduct pursuant to the Ellerth/Faragher defense. An 

employer can establish an affirmative defense to liability for a 

supervisor’s creation of a hostile work environment by 

showing “(1) that it exercised reasonable care to prevent and 

promptly correct any harassing behavior and (2) that the 

plaintiff unreasonably failed to take advantage of any 

 

unequivocally yes. Marshall had the authority from the Board 

to determine whether Moody worked at all at New York 

Avenue School and this authority was not vague or “illdefined.” Vance, 133 S. Ct. at 2443. 

Moreover, contrary to the Dissent’s characterization, 

the Majority is not simply relying on the fact that Marshall 

could assign Moody work hours. Marshall was not a mere 

scheduler, assigning hours among those who were in a pool of 

employees. Marshall controlled whether Moody worked at 

New York Avenue School at all. Furthermore, the record does 

not reflect that anyone else was Moody’s supervisor. The 

Dissent challenges this statement by citing to Moody’s 

deposition testimony where she was asked whether she 

discussed Marshall’s behavior with anyone such as the 

principal or Marshall’s supervisor. This exchange, however, 

does not indicate that either of these people supervised her 

pursuant to Vance. Moreover, while the Dissent suggests that 

those who hired Moody qualify as her supervisors under 

Vance, even if that were so, this does not mean Marshall was 

not also her supervisor.
21

preventive or corrective opportunities that were provided.” 

Vance, 133 S. Ct. at 2442 (citing Faragher, 524 U.S. at 807; 

Ellerth, 524 U.S. at 765). Under Federal Rule of Civil 

Procedure 8(c), “[i]n responding to a pleading, a party must

affirmatively state any . . . affirmative defense.” Fed. R. Civ. 

P. 8(c)(1); see also Ellerth, 524 U.S. at 765 (describing the 

defense as an “affirmative defense” and citing to Rule 8(c)). 

“An affirmative defense which is neither pleaded as required 

by [R]ule 8(c) nor made the subject of an appropriate motion 

under [R]ule 12(b) is waived.” Sys. Inc. v. Bridge Elecs. Co., 

335 F.2d 465, 466 (3d Cir. 1964). However, an affirmative 

defense generally “need not be articulated with any rigorous 

degree of specificity, and is sufficiently raised for purposes of 

[Federal] Rule [of Civil Procedure] 8 by its bare assertion.” 

Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir. 

1997) (citation and internal quotation marks omitted). While 

the Board’s answer did not explicitly identify the

Ellerth/Faragher defense, the answer states that the Board “at 

all times, acted in good faith and based on reasonable and 

rational decision-making and procedure delegated to it under 

the laws of the State of New Jersey.” Def. App. 60. This 

statement is sufficient to raise the assertion that the Board acted 

with “reasonable care” under the first prong of the 

Ellerth/Faragher analysis regarding promptly taking corrective 

action. The Board’s answer also states that Moody’s damages 

were barred by her “failure to mitigate.” Def. App. 60. Under 

the second prong of the Ellerth/Faragher analysis, a plaintiff’s 

failure to take advantage of preventative or corrective 

opportunities at a school could be characterized as a “failure to 

mitigate” damages. See Adams v. Austal, U.S.A., L.L.C., 754 

F.3d 1240, 1258 (11th Cir. 2014) (finding that pleading of 

“failure to mitigate” sufficiently raised an Ellerth/Faragher

defense). Accordingly, while it would have been better to more 
22

explicitly assert the Ellerth/Faragher defense, the Board’s 

answer provides sufficient notice of its intent to raise it. See

Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)

(“The purpose of requiring the defendant to plead available 

affirmative defenses in [its] answer is to avoid surprise and 

undue prejudice by providing the plaintiff with notice and the 

opportunity to demonstrate why the affirmative defense should 

not succeed.”). 

The Board’s brief in support of its motion for summary 

judgment also alludes to the Ellerth/Faragher defense, even 

though it is not mentioned by name. Its brief emphasizes that 

Moody did not report the harassment until February 4, 2013, 

and the Board immediately took action and conducted a 

thorough investigation upon receiving her complaint. These 

arguments address the Ellerth/Faragher analysis by claiming

that Moody failed to take advantage of corrective opportunities 

when she did not timely report the harassment, and asserting 

that the Board acted reasonably by immediately conducting a 

thorough investigation into Moody’s complaint. Therefore, the 

Board did not waive its Ellerth/Faragher defense.

The Ellerth/Faragher defense, however, is available 

only where the plaintiff did not experience a “tangible 

employment action.” Ellerth, 524 U.S. at 765. Moody argues 

that she experienced a tangible employment action by 

receiving reduced hours from Marshall. There are many ways 

Moody’s work hours could be viewed. For example, Moody 

worked more hours for Marshall in the three pay periods before 

she rejected his advances than in the three pay periods after she 

rejected them. Compare App. 156, 159, 162 (showing that 

Moody worked a total of 94 hours at New York Avenue School 

in the pay periods of November 19-30, December 3-14, and 
23

December 17-28), with App. 165, 168, 171 (showing that 

Moody worked a total of 62.5 hours at New York Avenue 

School in the pay periods of December 31-January 11, January 

14-25, and January 28-February 8). A reasonable juror could 

conclude that Marshall gave Moody hours to entice her to 

accede to his sexual demands and then reduced her hours after 

she rejected him. On the other hand, Moody received about 

the same number of hours at New York Avenue School in 

January 2013, after she rejected Marshall, as she did in 

December 2012, before she rejected Marshall. Compare App. 

156, 159, 162, 165 (showing that Moody worked a total of 54.5

hours at New York Avenue School in December 2012), with

App. 165, 168, 171 (showing that Moody worked a total of 56

hours at New York Avenue School in January 2013). A 

reasonable juror could therefore also conclude that Marshall 

did not reduce Moody’s hours at all following her rejection of 

his advances. Because Moody’s pay records are central to the 

question of whether she suffered a tangible employment action 

and could reasonably be viewed in two ways, there is a 

disputed issue of material fact as to whether she suffered a 

tangible employment action. Because the Ellerth/Faragher

defense is available only where there is no tangible 

employment action, Ellerth, 524 U.S. at 765, a jury must first 

decide whether there was such an action. If the jury concludes 

that there was not, the District Court or jury (if there are 

disputed material facts with respect to the Ellerth/Faragher

defense) may then decide whether the Board avoids liability 

based on the defense. Because there are disputed facts

concerning whether Marshall took a tangible employment 

action against Moody, and the answer to that question dictates 

whether the Board may invoke the Ellerth/Faragher defense, 

we will vacate the District Court’s order granting summary 
24

judgment in the Board’s favor on Moody’s hostile work 

environment claim. 

IV

Title VII and the NJLAD make it unlawful for an 

employer to retaliate against an employee who complains 

about employment discrimination.19 To establish a prima facie 

case of retaliation under Title VII, a plaintiff must show “(1) 

[that she engaged in] protected employee activity; (2) adverse 

action by the employer either after or contemporaneous with 

the employee’s protected activity; and (3) a causal connection 

between the employee’s protected activity and the employer’s 

adverse action.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 

193 (3d Cir. 2015) (citation and internal quotation marks 

omitted); Craig v. Suburban Cablevision, Inc., 660 A.2d 505, 

508 (N.J. 1995) (reciting similar elements for NJLAD 

retaliation). 

As to the first element of the prima facie case, Moody 

filed a written complaint about Marshall’s alleged sexual 

 19 Title VII makes it unlawful “for an employer to 

discriminate against any of [its] employees . . . because [the 

employee] has opposed any practice made an unlawful 

employment practice by this subchapter, or because [the 

employee] has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or 

hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). 

Similarly, under the NJLAD, it is unlawful “[f]or any person 

to take reprisals against any person because that person has 

opposed any practices or acts forbidden under this act.” N.J. 

Stat. Ann. § 10:5-12(d).
25

harassment with the Board on February 4, 2013, and the Board 

concedes that this action constitutes an “activity protected by 

Title VII.” App. 56; see Daniels, 776 F.3d at 193 (noting that 

protected activity includes “informal protests of discriminatory 

employment practices, including making complaints to 

management” (citations and internal quotation marks 

omitted)). 

As to the second element, we must determine whether 

Moody suffered a materially adverse action. In this context, a 

materially adverse action is one that would have “dissuaded a 

reasonable worker from making or supporting a charge of 

discrimination.” Id. at 195 (citations and internal quotation 

marks omitted). Here, after Moody filed her February 2013 

complaint of sexual harassment, she experienced a drop in the 

hours she was assigned. In the four months preceding her 

complaint, Moody worked a total of 360 hours. See App. 181-

82 (showing that Moody was assigned to work 62 hours in 

October 2012, 115.5 hours in November 2012, 126.5 hours in 

December 2012, and 56 hours in January 2013). By 

comparison, in the four months following her complaint, 

Moody worked a total of 115.5 hours. See App. 182 (showing 

that Moody was assigned to work 36 hours in February 2013, 

23 hours in March 2013, 32.5 hours in April 2013, and 24 hours 

in May 2013). Therefore, Moody’s working hours declined 

three-fold in the months following her complaint as compared 

to the months preceding her complaint. Viewing these facts in 

a light most favorable to the non-movant, a reasonable 

employee could view this reduction of work hours, and the 

resulting decreased pay, as sufficient to discourage him or her 

from filing a sexual harassment complaint. Therefore, Moody 

satisfies the second element of the prima facie case.
26

Finally, as to whether there is a causal connection 

between the plaintiff’s protected activity and the employer’s 

adverse action, a court considers a “broad array of evidence,”

including whether there is an “unusually suggestive” temporal 

proximity between the protected activity and adverse action. 

Daniels, 776 F.3d at 196 (citations and internal quotation

marks omitted). An inference of “unduly suggestive” temporal 

proximity begins to dissipate where there is a gap of three 

months or more between the protected activity and the adverse 

action. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 

F.3d 217, 233 (3d Cir. 2007). In this case, as noted above, 

Moody’s working hours declined immediately following the 

filing of her complaint and never recovered. In fact, in the two 

pay periods directly following the filing of her complaint, 

Moody was not assigned any hours. See App. 173-77 

(showing no hours worked for Moody during the pay periods 

of February 11-22 and February 25-March 8). The close 

temporal connection between Moody’s complaint and the 

reduction in her hours is “unduly suggestive” and sufficient to 

provide prima facie evidence of a causal connection. 

Accordingly, Moody has established a prima facie case 

of retaliation under Title VII and the NJLAD.

20

 20 While there may be a legitimate, nondiscriminatory 

reason for the reduction in Moody’s hours, neither the parties 

nor the District Court addressed it because the District Court 

concluded that Moody did not establish a prima facie case of 

retaliation. See Daniels, 776 F.3d at 193 (stating that after the 

plaintiff makes out her prima facie case, “the burden of 

production of evidence shifts to the employer to present a 

legitimate, non-retaliatory reason for having taken the adverse 
27

V

For the foregoing reasons, we will vacate the judgment 

of the District Court and remand for further proceedings. 

 

action”). The District Court may address this issue on remand, 

and we express no opinion on its proper resolution. 
Michelle Moody v. Atlantic City Board of Education

No. 16-4373

RENDELL, Circuit Judge, concurring in part and dissenting 

in part.

Four years ago in Vance v. Ball State University, 133 

S. Ct. 2434 (2013), the Supreme Court set forth a clear and 

straightforward test for determining whether an employee 

ought to be considered a “supervisor” for purposes of the

employer’s vicarious liability for sexual harassment in the 

workplace under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e–2(a)(1). The Majority’s decision to deem 

Marshall a “supervisor” and allow Moody’s hostile work 

environment claim to move forward totally ignores, and is 

inconsistent with, this recent pronouncement. For that reason, 

I respectfully dissent.

1

I. “Supervisor” Before Vance

The Supreme Court first attached significance to the 

“supervisor” label in Burlington Industries, Inc. v. Ellerth, 

524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 

524 U.S. 775 (1998). In those cases, the Supreme Court held 

that an employer will be held vicariously liable for its 

employees who engage in discrimination such as sexual 

 1 I do not take issue with the Majority’s judgment on 

Moody’s retaliation claim. 
2

harassment, even in the absence of negligence, if the harasser 

was a “supervisor” who took a “tangible employment action” 

against the victim. See Ellerth, 524 U.S. at 762; Faragher, 

524 U.S. at 790. These cases defined a “tangible employment 

action” as 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.” Ellerth, 524 U.S. at 761. 

They explained that “[a] tangible employment decision 

requires an official act of the enterprise, a company act[,]” 

which “in most cases is documented in official company 

records, and may be subject to review by higher level 

supervisors.” Id. at 762. 

Although Ellerth and Faragher confirmed the 

significance of supervisor status for Title VII claims, they left 

the term “supervisor” undefined.2 This lack of guidance led

to a circuit split. Some courts interpreted the case law to 

“presuppose[] a clear distinction between supervisors and coworkers” that focused on such discrete responsibilities as 

hiring/firing, promoting/demoting, transferring, and 

disciplining, while others followed the “open-ended approach

advocated by the EEOC’s Enforcement Guidance, which 

tie[d] supervisor status to the ability to exercise significant 

 2 In both Ellerth and Faragher, the status of the alleged 

harasser was not in dispute and so the Supreme Court did not 

need to reason through this issue. See Vance, 133 S. Ct. at 

2447 (“In light of the parties’ undisputed characterization of 

the alleged harassers, this Court simply was not presented 

with the question of the degree of authority that an employee 

must have in order to be classified as a supervisor.”).
3

direction over another’s daily work.” See Vance, 133 S. Ct. at 

2443 (contrasting the former approach taken by the First, 

Seventh, and Eighth circuits with the latter approach taken by 

the Second and Fourth circuits). The EEOC’s Enforcement

Guidance set forth vague qualitative and quantitative 

guidelines: 

[A]n employee, in order to be classified as a

supervisor, must wield authority of sufficient 

magnitude so as to assist the harasser explicitly 

or implicitly in carrying out the harassment. . . . 

[T]he authority must exceed both an ill-defined 

temporal requirement (it must be more than 

occasiona[l]) and an ill-defined substantive 

requirement (an employee who directs only a 

limited number of tasks or assignments for 

another employee . . . would not have sufficient 

authority to qualify as a supervisor.[)]. 

Id. at 2449 (citations and internal quotation marks omitted)

(third alteration in original). Courts adopting the EEOC’s 

Enforcement Guidance thus considered “the number (and 

perhaps the importance) of the tasks in question [as] a factor 

to be considered in determining whether an employee 

qualifies as a supervisor.” Id. at 2450. In Vance, the 

Supreme Court noted that this approach resulted in a 

“standard of remarkable ambiguity” given that “[k]ey 

components of that standard—‘sufficient’ authority, authority 

to assign more than a ‘limited number of tasks,’ and authority 

that is exercised more than ‘occasionally’—have no clear 

meaning.” Id.
4

Prompted by the deepening divide among the circuits 

and the myriad variations that the label “supervisor” had 

come to connote depending on the context,

3 Vance finally 

addressed the “supervisor” question. 

II. Vance v. Ball State University

Writing for the majority in Vance, Justice Alito made 

it quite clear that the Supreme Court was announcing a new, 

“readily applied” test for determining whether one is a 

“supervisor” for purposes of hostile work environment claims 

brought under Title VII. Id. at 2449. The case marked a shift 

in analysis away from the “nebulous definition,” id. at 2443, 

or “study in ambiguity,” id. at 2449, that had previously 

applied. No longer is there an assortment of “varying 

meanings” that can be considered, id. at 2446, or “a highly 

 3 See Vance, 133 S. Ct. at 2444 (“A comparison of the 

definitions provided by two colloquial business authorities 

illustrates the term’s imprecision in general usage. One says 

that ‘[s]upervisors are usually authorized to recommend 

and/or effect hiring, disciplining, promoting, punishing, 

rewarding, and other associated activities regarding the 

employees in their departments.’ Another says exactly the 

opposite: ‘A supervisor generally does not have the power to 

hire or fire employees or to promote them.’ . . . If we look 

beyond general usage to the meaning of the term in other 

legal contexts, we find much the same situation. Sometimes 

the term is reserved for those in the upper echelons of the 

management hierarchy. . . . But sometimes the term is used to 

refer to lower[-]ranking individuals.”) (citation and footnotes 

omitted) (alteration in original).
5

case-specific evaluation of numerous factors” in which courts 

ought to engage, id. at 2443. Rather, the newly streamlined 

test is whether the person in question has the authority—

“empowered by the employer”—to alter the employee’s 

status. Id. at 2439. Courts are now charged with asking

whether the employee in question is capable of taking one of 

several discrete actions toward the employee: Can that 

person hire or fire the employee? Can that person promote or 

demote the employee? Can that person reassign the employee 

with significantly different responsibilities or make a decision 

that causes a significant change in the employee’s benefits? 

If none of these questions can “readily” be answered in the 

affirmative, then the inquiry ends and the reviewing court 

may not deem that employee a “supervisor.” This bright-line 

approach fosters an “easily workable” definition that “can be 

applied without undue difficulty at both the summary 

judgment stage and at trial.” Id. at 2444 (also observing that 

“[t]he alternative, in many cases, would frustrate judges and 

confound jurors”).4

 4 Clarifying Ellerth and Faragher, Justice Alito stated:

Those decisions contemplate a unitary category 

of supervisors, i.e., those employees with the 

authority to make tangible employment 

decisions. There is no hint in either decision 

that the Court had in mind two categories of 

supervisors: first, those who have such 

authority and, second, those who, although 

lacking this power, nevertheless have the ability 

to direct a co-worker’s labor to some ill-defined 

degree. On the contrary, the Ellerth/Faragher

framework is one under which supervisory 
6

III. Marshall Is Not a “Supervisor” Under Vance

Turning to our case, I would have applied the 

unambiguous test that Vance established rather than the 

Majority’s open-ended, multi-factor approach that Vance 

explicitly rejected. Could Marshall hire or fire Moody? 

Could Marshall promote or demote Moody? Could Marshall 

reassign Moody with significantly different responsibilities or 

make a decision that caused a significant change in her 

benefits? The record undoubtedly answers all of these 

questions in the negative. 

The Majority primarily argues that Marshall was 

Moody’s “supervisor” because he could cause a significant 

change in Moody’s benefits by virtue of his ability to assign 

her hours and his record of assigning her a significant number 

of hours. The Majority relatedly urges that Marshall’s 

supervisory status also stems from his ability “to determine 

whether Moody worked at all” at the New York Avenue 

School. Maj. Op. at 18. But as the record and relevant case 

 

status can usually be readily determined, 

generally by written documentation. 

Id. at 2443. Ellerth held that “[t]angible employment actions 

are the means by which the supervisor brings the official 

power of the enterprise to bear on subordinates.” 524 U.S. at 

762. Elucidating this statement, Vance rejected the “openended approach” and held that “[t]he strong implication of 

this passage is that the authority to take tangible employment 

actions is the defining characteristic of a supervisor, not 

simply a characteristic of a subset of an ill-defined class of 

employees who qualify as supervisors.” 133 S. Ct. at 2448. 
7

law demonstrate, neither characterization of Marshall’s 

responsibilities is enough to render Marshall a “supervisor”

under Vance. I will address each one in turn.

A.

The Majority contends that because Marshall impacted 

Moody’s “benefits”—i.e., her pay by virtue of giving, or not 

giving, work—he was her “supervisor.” Id. Due to the 

number of hours he assigned her (and then ultimately did not 

assign her), the argument goes, this impact was “significant” 

so as to make Marshall’s assignment of work fit within the 

last phrase of the Ellerth description of tangible employment 

actions—a decision that causes a “significant change in 

benefits.” Id. at 17 (citation omitted); see also id. at 18

(“Marshall assigned Moody over 70% of her hours from 

October 2012 through February 2013”). This contention, and 

the approach it rests on, squarely contradicts Vance, as 

Moody was not entitled to any “benefits” that could be 

“change[d].” 

The Majority rightly notes that as a substitute 

custodian, Moody “was not guaranteed any work.” Id. at 3. 

Moody well understood what her position entailed, as she 

testified in her deposition that she was never entitled to a 

minimum number of days of work per week, fixed tenure, 

raise in salary, promotion to full-time custodian, or any 

additional benefits. (See A. 206–09.) Indeed, when she 

wanted more assignments, Moody knew she needed to take 

the initiative to introduce herself to the foremen and make it 

known that she was available. Moody’s arrangement with 

the Board is dispositive of the supervisor question, as the 

benefits to which she was entitled constitute our starting point 
8

for assessing whether there was a “significant change.” But 

as Moody testified, there were no benefits to which she was 

entitled.

“Significant change in benefits,” placed as it is in 

Ellerth as the last phrase following such discrete capabilities 

as hiring and firing, see 524 U.S. at 761, must involve a 

change in some specific aspect of employment that has 

already been contracted for or is reasonably expected, such as 

take-home pay, vacation days, health coverage, and the like. 

Moody was not entitled to, nor had any expectation of, any of 

these types of benefits, and Marshall did not have any 

authority to provide them, let alone alter them. While he 

could assign her work, as could the other ten foremen, Vance

rejected that capability as part of a nebulous supervisor

calculus. See Vance, 133 S. Ct. at 2445–46 (citing 5 C.F.R. § 

9701.212(b)(4) as an example that in some legal contexts, 

“supervisory work . . . may involve hiring or selecting 

employees” and “assigning work,” and noting that “the term 

‘supervisor’ has varying meanings both in colloquial usage 

and in the law” and that therefore a streamlined definition 

was necessary for Title VII purposes). 

Furthermore, if impacting pay by giving or not giving 

work elevates an employee to supervisor status, every person 

in charge of the weekly roster for hourly workers such as 

waiters, nurses, truckers, and the like will be supervisors if 

they sufficiently favor, or disfavor, certain of those workers. 

And such a purported “supervisor” would not be a 

“supervisor” of those employees whose hours were not 

significantly impacted. The analysis espoused by the 

Majority today would have courts engage in a rigorous factchecking of payroll records and then not only calculate the 
9

total number of hours worked but also identify and contrast 

patterns of those hours over time and among employees.5

 

Such an undertaking is precisely the sort of “highly casespecific evaluation” that Vance eliminated. Even if we were 

permitted to engage in that sort of inquiry, the Majority’s 

conclusion would still be erroneous because Marshall’s 

responsibilities do not take on greater weight—and, by 

extension, do not render him a “supervisor”—simply because 

Moody happened to be more successful with him than with 

other foremen in securing work. Marshall’s responsibilities 

are defined at the front-end by the terms set by the employer, 

which in this case, simply did not task Marshall with a 

supervisory role as contemplated by Vance.

Marshall’s assignment of hours, and its impact on 

Moody’s pay, is only noteworthy because Moody was a wage 

employee and not a salaried one. The few courts of appeals

to address the “supervisor” question have noted this 

distinction—wage employee as opposed to salaried—but then

have rejected the idea that influencing hours and pay in this 

 5 The Majority aims to downplay its rigorous examination

of the record (and, more specifically, its reliance on the 

payroll records), by stating that it is “simply using the records 

to corroborate the conclusion that Marshall controlled a 

sizeable amount of Moody’s work, and hence her 

compensation—the benefit she received from her 

employment.” Maj. Op. at 18 n.15. This understatement is 

puzzling, as the Majority’s conclusion that the impact of 

Marshall’s assignments on Moody’s take-home pay rendered 

him a “supervisor” is necessarily drawn from and dependent 

on an analysis of these very records. 
10

way could render an employee a “supervisor.” See EEOC v. 

Autozone, Inc., No. 16-6387, 2017 WL 2506526, at *2–3 (6th 

Cir. June 9, 2017) (implying that victim was an hourly 

employee but still finding that harasser was not her

“supervisor” because he could not fire, demote, promote, or 

transfer, and noting that “Vance establishes a sharp line 

between co-workers and supervisors, not an invitation for 

speculation about amorphous levels of influence”) (citation 

and internal quotation marks omitted); Chavez-Acosta v. Sw. 

Cheese Co., LLC, 610 F. App’x 722, 730 (10th Cir. 2015) 

(holding that an employee was not a “supervisor” because he 

could not effect “significant change” in the victim’s

employment even though he was a “team leader” in the 

department in which the victim worked and even though the 

victim was an hourly employee); McCafferty v. Preiss 

Enters., Inc., 534 F. App’x 726, 728, 731 (10th Cir. 2013) 

(finding no “supervisor” status for an employee who oversaw 

and assigned work to McDonald’s crewmembers and noting 

that “[i]f mere influence in tangible employment decisions 

rendered a co-worker a supervisor, this exception would 

swallow the rule”).

Other courts of appeals have likewise found supervisor 

status to be lacking when reviewing responsibilities similar to 

those assigned to Marshall. See Kim v. Coach, Inc., No. 14-

16248, 2017 WL 2615457, at *1 (9th Cir. June 16, 2017) 

(finding no supervisor status for employee who could give 

instructions about work); Matherne v. Ruba Mgmt., 624 F. 

App’x 835, 840 (5th Cir. 2015) (finding no supervisor status 

for employee who had some leadership authority, including 

control over a book where managers would make comments 

if anything went wrong in the workplace, but could not hire, 

fire, promote, demote, transfer, or discipline); Spencer v. 
11

Schmidt Elec. Co., 576 F. App’x 442, 447–48 (5th Cir. 2014) 

(finding no supervisor status for employee who could give 

other employees direction on how to do their jobs but could 

not fire anyone without permission, and noting that “evidence 

. . . that a foreman was authorized to direct the employee’s 

daily work activities . . . is the definition of supervisor 

expressly rejected by the Supreme Court”) (internal quotation 

marks omitted). Conversely, courts have found that an

employee qualifies as a supervisor when empowered to take 

the sorts of actions that Marshall could not. See Voltz v. Erie 

Cty., 617 F. App’x 417, 424 (6th Cir. 2015) (employee who 

could interview and hire candidates, determine salary 

increases, and make recommendations regarding employee 

terminations was a “supervisor”). The only case that the 

Majority cites to support its elastic definition of “supervisor” 

as encompassing reducing another’s hours, Cotton v. Cracker 

Barrel Old Country Store, Inc., 434 F.3d 1227 (11th Cir. 

2006), was decided over seven years before Vance and 

focused on “highly case-specific” factors that Vance

explicitly rejected. See Vance, 133 S. Ct. at 2443 (rejecting 

the notion that one who “ha[s] the ability to direct a coworker’s labor to some ill-defined degree” may properly be 

considered a “supervisor”). 

B.

The Majority relatedly contends that Marshall had the 

authority to determine “whether Moody worked at all” at the 

New York Avenue School. Maj. Op. at 18. Relying solely 

on Cotton, this line of argument urges that “Marshall had the 

authority to cause a significant change in benefits by 

assigning her no hours, thereby eliminating her take-home 

pay.” Id. But such a characterization, insinuating that 
12

Moody’s fate as a Board employee was entirely up to 

Marshall, blatantly ignores the fact that Marshall had no 

control whatsoever over Moody’s ability to work at the ten 

other schools, and that she was only prohibited from working 

at the New York Avenue School after other Board employees 

told her to have no further contact with Marshall following 

her internal complaint. 

Seeking to portray Marshall as the ultimate decisionmaker of Moody’s work status, the Majority states that “no 

one else was identified in the record as having authority over 

Moody, other than the custodial foremen who could assign 

her work at their schools.” Id. Such a gap in the record 

would prove nothing regarding Marshall’s authority over 

Moody—the issue dispositive to Moody’s hostile work 

environment claim. This description of the record is also 

wrong. For example, Moody’s deposition indicates the 

presence of at least one other Board employee at the New 

York Avenue School whose authority over her was superior 

to Marshall’s. Moody testified to the effect that Marshall was 

not in charge at the New York Avenue School during the time 

that Moody worked there. The relevant exchange occurred 

during questioning regarding Moody’s description of 

Marshall grabbing her in a school stairwell to kiss her:

Q. Did you discuss your discomfort with 

anyone?

A. No.

Q. So you didn’t tell the building supervisor, 

like the building principal?

A. No.

Q. Mr. Marshall’s supervisor?

A. No.
13

Q. How about the police?

A. No. 

(A. 212 (emphasis added).) This exchange suggests that there 

was someone else stationed at the New York Avenue School 

to whom Moody reported and who had supervisory authority 

over her. The record also identifies the Board employees who 

hired Moody and who therefore were her supervisors under 

Vance.

6 These examples from the record seriously 

undermine the Majority’s notion that “no one else” had 

“authority over Moody.”

The Majority’s reasoning further suffers from the 

absence of any limiting principle that the Supreme Court in 

Vance was so determined to impose in employment cases like 

this one. The Majority reasons on the one hand that 

Marshall’s ability to put together Moody’s schedule at the 

New York Avenue School rendered him her “supervisor” and, 

on the other hand, that “not . . . every employee tasked with 

creating a work schedule is a supervisor for Title VII . . .

purposes.” Maj. Op. at 19 n.16. But the Majority fails to 

explain—let alone cite any supporting legal authority—why 

we ought to set aside the dictates of Vance and find that 

“creating a work schedule” is sufficient in this case. This 

omission is particularly glaring because the three other factors 

relied upon by the Majority—the Board’s so-called 

 6 Though the Majority emphasizes that Vance did not 

preclude the possibility of multiple supervisors, that lack of 

explicit preclusion says nothing about whether Marshall 

himself enjoyed supervisory power over Moody.
14

“concession” of Marshall’s status;7 the record’s “failure” to 

identify an alternative supervisor; and the Majority’s analysis 

of Moody’s payroll records—do not make the case for 

deeming Marshall a “supervisor.”

All Marshall could do vis-à-vis Moody was schedule

her hours at one out of the eleven schools at which she was 

qualified to work. If that alone, as the Majority concedes, is 

insufficient to render an employee a “supervisor,” how can 

Marshall possibly be Moody’s “supervisor” as defined by 

Vance? The gloss that the Majority seeks to put on 

Marshall’s (limited) responsibilities is wholly belied by the 

facts of the record and the requirements of the law.

IV. Conclusion

Whether or not we agree with the narrowed definition 

of “supervisor” set forth in Vance that will necessarily 

eliminate some employees’ claims against employers for

hostile or harassing conduct, we are bound to follow the 

Supreme Court’s renunciation of the idea that one who 

assigns work is a supervisor:

Particularly in modern organizations that have 

abandoned a highly hierarchical management 

structure, it is common for employees to have 

overlapping authority with respect to the 

 7 The Board’s remark during oral argument that Marshall 

was acting in a supervisory capacity when Moody worked at 

the New York Avenue School only evinces the Board’s own 

misunderstanding of the concept of “supervisor.” 
15

assignment of work tasks. Members of a team 

may each have the responsibility for taking the 

lead with respect to a particular aspect of the 

work and thus may have the responsibility to 

direct each other in that area of responsibility. 

Vance, 133 S. Ct. at 2452. In making this statement, Vance

was responding to—and rejecting—the dissenting justices’ 

observation, now adopted by the Majority in this case, that 

“individuals with the power to assign daily tasks are often 

regarded by other employees as supervisors.” Id. Even if that

perception exists, it is not the law for purposes of Title VII. 

The Supreme Court has now held that the responsibility to 

direct others does not make an employee a “supervisor,” and 

this ruling dictates that Marshall was not Moody’s 

“supervisor.”8

Our limited role for purposes of this appeal is not to 

figure out precisely who at the Board had supervisory power 

over Moody. We need only address whether Marshall did in 

 8 I echo Justice Alito’s remark in Vance that victims of 

sexual harassment perpetrated by employees not considered 

“supervisors” may still pursue other related claims under Title 

VII, including negligence and quid pro quo (a claim that 

Moody’s counsel inexplicably dropped at oral argument). See 

133 S. Ct. at 2452. The Majority’s conclusion that my 

application of Vance to Moody’s claim would preclude 

similarly situated employees from protection against sexual 

harassment is a reformulation of an argument raised by the 

dissenting justices in Vance—and quickly rejected by the 

majority in that case. See id. at 2451.
16

order to allow Moody’s hostile work environment claim to 

proceed. It is clear to me, with Vance as binding precedent, 

that he did not. The Majority’s conclusion to the contrary is 

simply incorrect.