IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60230

CASSANDRA LEE MORROW,

 Plaintiff - Appellant 

v. 

KROGER LIMITED PARTNERSHIP I; MICKEY MANCINI, 

 Defendants - Appellees 

______________________________________________________ 

SAVANNAH BARRON, 

 Plaintiff - Appellant 

v. 

KROGER LIMITED PARTNERSHIP I; MICKEY MANCINI, 

 Defendants - Appellees 

Appeals from the United States District Court 

for the Northern District of Mississippi 

USDC No. 3:13-CV-276

USDC No. 3:13-CV-305

Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges. 

United States Court of Appeals

Fif h Circuit

FILED

March 14, 2017

Lyle W. Cayce

Clerk

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PER CURIAM:*

Cassandra Morrow and Savannah Barron appeal the district court’s 

grant of Kroger’s motion for summary judgment. In granting the motion, the 

district court found that Kroger meat market manager Mickey Mancini was 

not a “supervisor” for purposes of Title VII of the Civil Rights Act of 1964.

Consequently, Kroger was not strictly liable for Mancini’s conduct. Morrow and 

Barron also appeal the district court’s dismissal of their intentional 

interference with contractual relations claims against Mickey Mancini 

pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court found 

that Morrow and Barron’s claims against Mancini were preempted by the 

Labor Management Relations Act (“LMRA”). We AFFIRM the district court. 

BACKGROUND 

Morrow and Barron allege that they were sexually harassed by Mancini, 

who was meat market manager at Kroger’s Hernando, Mississippi store. 

Morrow was hired by Kroger as a deli clerk on January 21, 2010. According to 

her, Mancini began to harass her during the summer of 2011 after she 

transferred to the meat department. Barron was hired as a part-time seafood 

clerk on September 22, 2011. Subsequently, she began working with Mancini. 

She claims that Mancini’s harassment began soon after she was hired. Morrow 

and Barron claim that Mancini made inappropriate comments, groped them, 

and texted and called them after hours. 

On August 10, 2012, Morrow and Barron filed an internal complaint 

against Mancini with Kroger’s human resources department. Kroger 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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subsequently suspended Mancini and opened an investigation. After 

concluding its investigation, Kroger informed Morrow and Barron that, though 

some of Mancini’s actions were inappropriate, his conduct did not rise to the 

level of actionable sexual harassment because most of their allegations could 

not be corroborated. However, Kroger issued Mancini a “constructive advice,” 

or formal write-up for misconduct; suspended him for eleven days without pay; 

and warned him that he would be terminated if he engaged in similar conduct. 

Kroger then gave Morrow and Barron the choice to: (1) remain in the meat 

department under Mancini, (2) transfer to another department; or (3) transfer 

to another Kroger store. 

Morrow and Barron initially agreed to stay in the meat department. But, 

because of what they perceived as a hostile work environment created by 

Mancini and store manager Ahmad Akbary, Barron eventually chose to 

transfer to a different store and Morrow chose to resign. 

On November 8, 2013, Morrow filed suit against Kroger and Mancini. 

Against Kroger, Morrow alleged sexual harassment, retaliation, sex 

discrimination, and constructive discharge pursuant to Title VII. Against 

Mancini, Morrow alleged intentional interference with contractual relations. 

On December 18, 2013, Barron filed suit against Kroger and Mancini on 

similar grounds. Morrow and Barron’s cases were consolidated, and on March 

25, 2015, the district court granted Mancini’s motion to dismiss pursuant to

Rule 12(b)(6). On the same day, the district court also granted Kroger’s motion 

for summary judgment. Morrow and Barron timely appeal from the district 

court’s judgment. 

STANDARD OF REVIEW 

We review “an order granting summary judgment de novo.” Cooley v. 

Hous. Auth. of Slidell, 747 F.3d 295, 297 (5th Cir. 2014). We review a district 

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court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo. Doe ex rel. 

Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 

2010) (en banc). 

DISCUSSION 

Morrow and Barron make three arguments on appeal: (1) The district 

court erred by finding that there were no genuine issues of material fact 

regarding whether Mancini was a supervisor for Title VII purposes; (2) if 

Mancini was a Title VII supervisor, Kroger has not established the 

Faragher/Ellerth affirmative defense that Morrow and Barron were 

unreasonable in delaying their report of sexual harassment; and (3) the district 

court erred by finding that their state-law intentional interference claim 

against Mancini was preempted by the LMRA. None of these arguments are 

persuasive. 

I. 

The Supreme Court has stated that a Title VII supervisor is one who is 

“empowered [by the employer] . . . to take tangible employment 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.” Vance 

v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (citations and quotations 

omitted). 

In Matherne v. Ruba Mgmt., 624 F. App’x. 835 (5th Cir. 2015) (per 

curiam), and in Spencer v. Schmidt Elec. Co., 576 F. App’x 442 (5th Cir. 2014), 

we also commented on the meaning of Title VII supervisor. In Matherne, we 

found that an employee with the title “weekend manager” was not a Title VII 

supervisor, even though he had “some leadership responsibilities, including 

control over ‘the book,’ where managers ‘would make comments . . . if anything 

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went wrong . . . .’” Matherne, 624 F. App’x at 840. In Spencer, we found that a 

foreman was not a Title VII supervisor even though he arguably had an

“indirect right” to cause a tangible employment action by “going through the 

general foreman.” Spencer, 576 F. App’x at 447-48. In Spencer, we also stated 

that the employee’s subjective impression that his foreman could cause a 

tangible employment action did not make him a Title VII supervisor. Id. 

Here, Kroger has proffered evidence that Mancini did not have the 

authority to take tangible employment actions, including “the authority to hire 

and fire in the meat department.” According to Kroger, these powers were 

wholly vested in others—most notably, store manager Ahmad Akbary. Morrow 

and Barron have presented evidence that Mancini filled out performance 

evaluations; handled administrative tasks such as scheduling; boasted at a 

barbeque at his house that he could influence who was hired into the meat 

department; was consulted about hiring decisions; and may have had a close 

and friendly relationship with store manager Akbary. But this evidence does 

not show that Mancini had the authority to cause a tangible employment 

action as is required under Vance. At best, this evidence shows that Mancini

had some leadership responsibilities in the meat department; Morrow and 

Barron subjectively believed that Mancini could cause a tangible employment 

action; and Mancini had some influence over Akbary, though Akbary and 

others ultimately took all tangible employment action. Because Morrow and 

Barron have presented no genuine issue of material fact regarding whether 

Mancini was a Title VII supervisor, we find that the district court did not err.

In addition, since the district court did not err, we need not reach the issue of 

whether Kroger established a Faragher/Ellerth affirmative defense. 

II. 

We also find that Morrow and Barron’s state-law intentional 

interference claim against Mancini is preempted by the LMRA. “Section 301 of 

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the LMRA provides the requisite jurisdiction and remedies for individual 

employees covered under a collective-bargaining agreement between that 

individual’s employer and the union.” Thomas v. LTV Corp., 39 F.3d 611, 616 

(5th Cir. 1994). “[W]hen resolution of a state-law claim is substantially 

dependent upon analysis of the terms of an agreement made between the 

parties in a labor contract, that claim must either be treated as a § 301 claim 

or dismissed as pre-empted by federal labor-contract law.” Allis-Chalmbers 

Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citations omitted). Furthermore, 

“[p]re-emption occurs when a decision on the state claim is inextricably 

intertwined with consideration of the terms of the labor contract or when the 

application of state law to a dispute requires interpretation of the collectivebargaining agreement.” Thomas, 39 F.3d at 616.

Under Mississippi law, a claim of tortious interference with a contract 

arises when a plaintiff pleads: “(1) that the acts were intentional and willful, 

(2) that they were calculated to cause damage to the plaintiff in their lawful 

business, (3) that they were done with the unlawful purpose of causing damage 

or loss, without right or justifiable cause on the part of the defendant, and (4) 

that actual damage and loss resulted.” Hollywood Cemetery Ass’n v. Bd. of 

Mayor and Selectmen of McComb City, 760 So. 2d 715, 719 (Miss. 2000). “[T]he 

plaintiff must also prove that an enforceable obligation existed between the 

plaintiff and another party.” Id. 

Here, Morrow and Barron’s claim would necessarily require analysis of 

the terms of their collective bargaining agreement since, under Mississippi 

law, they must prove the existence of an enforceable obligation between Kroger 

and them. Id. As the district court correctly stated, “Plaintiff’s employment 

with Kroger is governed by a collective bargaining agreement (“CBA”) entered 

into between Kroger and the United Food & Commercial Workers Union, Local 

1529. Because the CBA is the only contract governing Plaintiffs’ employment 

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with Kroger, it follows that Plaintiffs’ claim for intentional interference with a 

contract must refer to the CBA.” Because Morrow and Barron must prove the 

existence of an enforceable agreement, the CBA is the only contract governing 

Morrow and Barron’s employment, and “pre-emption occurs . . . when the 

application of state law to a dispute requires interpretation of the collectivebargaining agreement,” we conclude that the district court did not err. See 

Thomas, 39 F.3d at 316.

CONCLUSION 

 For the reasons stated above, we AFFIRM the district court. 

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