                                       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)
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




                               2
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).




                              3
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




                                4
       [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.




                               5
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.




                               6
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).




                               7
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.

                               II 7

       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.




                                8
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 non-
moving 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. § 2000e-
2(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).




                                  9
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




                               10
       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 non-
retaliation 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.




                               11
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




                              12
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)).




                              13
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:




                                14
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).




                               15
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




                               16
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).




                              17
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




                              18
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




                              19
                               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 “ill-
defined.” 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.




                              20
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




                                21
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




                               22
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




                             23
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).




                              24
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.




                              25
        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




                               26
                              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.




                             27
       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.
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 co-
workers” 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.”).




                               2
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.




                              3
      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).




                              4
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




                                5
    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 “open-
ended 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.




                              6
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




                               7
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 fact-
checking of payroll records and then not only calculate the




                              8
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 case-
specific 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.




                               9
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.




                              10
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 co-
worker’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




                              11
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 decision-
maker 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.




                             12
       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.




                              13
“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.”




                              14
       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.




                              15
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.




                             16
