No. 16-4373

Sep. 6, 2017 (Date Decided)

Judge Shwartz

FOR APPELLANT: Samuel A. Dion (Dion & Goldberger)

FOR APPELLEE: Rachel M. Conte and Tracy L. Riley (Law Offices of Riley and Riley)

Plaintiff appealed from the district court’s grant of summary judgment in favor of defendant in plaintiff’s Title VII and New Jersey Law Against Discrimination action, arising from plaintiff’s allegations of sexual harassment and retaliation. Plaintiff was hired by defendant as a substitute custodian. When plaintiff was rarely scheduled work during the 2011-2012 school year, she was advised to introduce herself to the custodial foremen at each school in the district, since the foremen had authority to select the substitute custodians who worked at the school. Plaintiff introduced herself to various foremen, including Maurice Marshall, the custodial foreman at New York Avenue School.

In the fall of 2012 Marshall began assigning plaintiff regular work. The parties agreed that on days plaintiff worked at New York Avenue School, Marshall acted in a supervisory capacity over plaintiff. Plaintiff alleged that shortly after beginning regular work at New York Avenue School, Marshall began making sexual comments towards her, inappropriately touching her, exposing himself to her, and offering more work in exchange for sexual favors. In one incident, plaintiff, feeling her job was threatened, reluctantly gave into Marshall’s unwanted sexual advances and had sex with him. However, afterwards plaintiff informed Marshall that such activity would not occur again. Thereafter, plaintiff alleged that Marshall began restricting her hours in retaliation for her refusal to continue a sexual relationship, while a new substitute custodian began receiving increased hours at New York Avenue School.

Following an internal investigation by defendant that concluded plaintiff had not suffered sexual harassment or discrimination, plaintiff filed the present action, arguing that defendant, through Marshall, had subjected her to harassment and retaliated for complaining about it. The district court granted defendant’s motion for summary judgment, ruling that Marshall was not plaintiff’s supervisor and that defendant was therefore not liable for his actions. The district court further ruled that plaintiff’s claim failed because she failed to demonstrate that she suffered a tangible employment action. Finally, the district court concluded that because defendant promptly acted upon plaintiff’s complaint, it was entitled to the Ellerth/Faragher affirmative defense.

On appeal, the court reversed the district court’s grant of summary judgment. The court concluded that Marshall was plaintiff’s supervisor for purposed of Title VII/NJLAD liability because he had sole authority to determine the hours plaintiff worked at New York Avenue School, which directly impacted plaintiff’s income; the court noted that the evidence demonstrated that no other individual supervised plaintiff. The court further ruled that the district court had prematurely considered defendant’s entitlement to the Ellerth/Faragher defense, as there were still factual disputes over the issue of whether plaintiff suffered a tangible employment action, the resolution of which would directly impact defendant’s entitlement to the defense.