Michelle Moody v. Atlantic City Board of Educati

870 F.3d 206, 2017 WL 3881957, 2017 U.S. App. LEXIS 17191, 130 Fair Empl. Prac. Cas. (BNA) 689
Court of Appeals for the Third Circuit·Decided September 6, 2017·No. 16-4373·Published·Cited by 220 cases

Opinions

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 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, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (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 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 [211]*211think 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”
[212]*212[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

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Michelle Moody v. Atlantic City Board of Educati, 870 F.3d 206, 2017 WL 3881957, 2017 U.S. App. LEXIS 17191, 130 Fair Empl. Prac. Cas. (BNA) 689 (3d Cir. 2017).

870 F.3d 206 (Michelle Moody v. Atlantic City Board of Educati) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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