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10th Circ. Fleshes Out High Court 'Supervisor' Definition

Law360—Ben James

The Tenth Circuit revived a suit Tuesday brought by a sheriff's department worker who alleged she was sexually harassed by a supervisor, in a decision lawyers say shows how plaintiffs may attack the U.S. Supreme Court's seemingly simple, bright-line rule for who qualifies as a "supervisor" under Title VII.

The three-judge panel's 67-page, published opinion reversed a trial court's grant of summary judgment to Utah's Wasatch County on a Title VII claim from former jailer and bailiff Camille Mae Kramer, demonstrating that even after the Supreme Court's June 24 Vance ruling — which ironed out a circuit split and said that employees could only qualify as a supervisor under Title VII if they had authority to take "tangible employment actions" — the question of whether supervisory status exists can still leave courts and litigants scratching their heads.

“This is probably the first post-Vance case that really analyzes in detail what Vance means against the backdrop of decades of harassment law,” Outten & Golden LLP's Paul W. Mollica said. “This is an interpretation of Vance which I feel is fair and consistent with the purpose of Title VII, but that leaves enough breathing space so that courts can evaluate real life employment relationships, not just what's on paper.”

Although the case involves unusual allegations, lawyers say the Kramer ruling will likely be cited by future harassment plaintiffs in disputes over whether an alleged harasser is a supervisor — a potentially important question because employers can be vicariously liable for supervisors' violations of Title VII. 

“It creates some avenues for plaintiffs to get around what seemed like a bright-line rule,” Alston & Bird LLP's Brett Coburn said of the Kramer decision. “There's no question that employers in courts in the Tenth Circuit are going to see this thrown at them by plaintiffs.”

The panel partially affirmed a Utah federal court's decision that granted Wasatch County summary judgment on all of Kramer's claims, but it reversed on her Title VII claim and sent the matter back to the lower court for trial. 

A trial judge ruled in March 2012 that a sergeant — who Kramer said raped her — was not a supervisor for Title VII purposes because he lacked the authority to unilaterally fire her and that supervisor status couldn't be premised on “apparent authority,” Tuesday's opinion said.

Kramer's allegations included claims that she was subjected to offensive comments and saw sexually offensive material on workplace computers. When she complained to the sheriff about the harassment, he allegedly held a staff meeting, used Kramer as a volunteer victim and acted out the scenes of harassment she described before telling those present: “That's harassment. Don't do it,” the ruling said.

Kramer later started working as bailiff under the direction of Sgt. Rick Benson, who she said persistently pressured her for foot rubs and allegedly sexually assaulted her on more than one occasion. She also alleged that at one point, Benson hired her to clean his house and then raped her in a closet, the opinion said.

The opinion pointed out that, officially, only the sheriff could actually fire employees, though Benson could recommend that someone be fired. The "tangible employment action" authority that alleged harassers must have to be deemed supervisors under Title VII includes the ability to make a significant change to the victim's employment status, such as hiring, firing, failing to promote or reassignment with significantly different responsibilities, the Vance decision said.

In striking down the county's summary judgment win, the Tenth Circuit ruled that Kramer had a genuine issue of material fact as to whether the county sheriff's department “effectively delegated” authority to Benson to take such actions.

Benson could qualify as a supervisor “so long as his recommendations were among the proximate causes of the sheriff’s decision-making,” the Tenth Circuit said.

In addition, the Tenth Circuit said Benson could qualify as a supervisor under “apparent authority principles,” which is a fact question that precludes summary judgment on Benson's supervisory status.

There's a genuine issue of fact regarding whether Kramer reasonably believed that Benson had the power to do things like transfer, discipline, demote or fire her, the opinion said, noting that Kramer said that Benson had repeatedly told her he had such power. 

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