Fact Issues as to “Supervisor” Status Result in Denial of Summary Judgment for Defendant on Plaintiff’s Title VII Hostile Work Environment Claim

In Lolonga-Gedeon v. Child & Family Servs., No. 1:08-CV-00300 EAW, 2015 WL 7280559 (W.D.N.Y. Nov. 18, 2015), the court rejected defendant’s challenge to an earlier decision denying its motion for summary judgment on plaintiff’s hostile work environment claim.

Defendant argued that the Supreme Court’s decision in Vance v. Ball State University, 133 S.Ct. 2434 (2013) “mandates entry of summary judgment in its favor on Plaintiff’s hostile work environment claim.” The court disagreed:

Contrary to Defendant’s argument, Vance [v. Ball State University] does not stand for the proposition that the issue of an individual’s status as a supervisor can never be an issue for the jury. Indeed, the Vance Court specifically acknowledged that there may be cases where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions)[.] … [T]his is such a case.

Defendant argues that, pursuant to Vance, Kristen Wright (“Wright”) cannot have been Plaintiff’s supervisor because “there is no competent evidence that Wright had the ability to take tangible employment actions.” In Vance, the Supreme Court identified several examples of tangible employment actions, including “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Although Defendant is correct that Julie Loesch (“Loesch”) stated in a declaration that Wright did not have the power to hire, fire, demote, promote, or transfer Plaintiff, the inquiry into whether an individual has the ability to take tangible employment actions is not so simple. Loesch conceded in her declaration that Wright had the power to take disciplinary actions so long as she “consult[ed]” with higher management. There is also, as discussed in the Report and Recommendation, evidence in the record to support the conclusion that although Wright’s job description may not have included the authority to fire Plaintiff, in practice she had been delegated such authority. Wright was identified as Plaintiff’s supervisor on her yearly evaluations, threatened Plaintiff with termination, and seemingly had input into the ultimate decision to terminate Plaintiff’s employment.

The Supreme Court made it clear in Vance that an individual may qualify as a supervisor even though her decisions are subject to review by higher management. Courts in this Circuit have declined to grant summary judgment after Vance where there is evidence that the alleged harasser had the ability to recommend the plaintiffs termination. … [A]n issue of fact exists as to Wright’s status as a supervisor, and the Court cannot resolve it as a matter of law.

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