     Case: 16-60230   Document: 00513909945     Page: 1   Date Filed: 03/14/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fif h Circuit

                                 No. 16-60230                            FILED
                                                                   March 14, 2017
                                                                    Lyle W. Cayce
CASSANDRA LEE MORROW,                                                    Clerk

             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.
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                                      No. 16-60230
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 collective-
bargaining 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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                                  No. 16-60230
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 collective-
bargaining 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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