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Moody v. Atlantic City Board of Education

United States Court of Appeals, Third Circuit

September 6, 2017


          Argued July 12, 2017

         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

          Samuel A. Dion, Esq. [ARGUED] Dion & Goldberger Counsel for Appellant.

          Rachel M. Conte, Esq. [ARGUED] Tracy L. Riley, Esq. Law Offices of Riley and Riley Counsel for Appellee.

          Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.


          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 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.


         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 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), (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
[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 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 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 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.


         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 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).



         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, 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]

         Viewed in a light most favorable to her, Moody's testimony about Marshall's sexual actions and his comments 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 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 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 ...

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