In Moody v. Atlantic City Board of Education, No. 16-4373 (3d Cir. Sept. 6), the U.S. Court of Appeals for the Third Circuit reversed summary judgment for an employer based on an elastic and expansive interpretation of just who constitutes a “supervisor” in a hostile work environment case. The precedential opinion, which was split 2-1, expanded on a 2013 U.S. Supreme Court opinion in Vance v. Ball State University, 133 S. Ct. 2434 (2013), that defined a supervisor as one “empowered by the employer to take tangible employment actions” against an employee. This was largely interpreted to mean the harasser’s authority to hire and fire employees. The supervisor in the Moody case, however, had no such authority. Instead, the court found, he controlled a sizable amount of the hours worked, as well as whether any work was assigned at all.

According to the facts in the majority opinion, Michelle Moody was hired by the Atlantic City Board of Education as a substitute custodian in November 2011. In an effort to obtain more steady work Moody asked a board member how to go about doing so. She was advised that she introduce herself to the custodial foremen at the schools within the district because each school had a custodial foreman who was delegated the authority to select which substitute custodians worked at the school.