.Spencer v. Schmidt Elec. Co., 576 Fed.Appx. 442, 447 (5th Cir. 2014) (quoting Vance, 133 S.Ct. at 2439). R. Doc. 104 at pp. 1-2 & 3.
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 went wrong . . . .'" Matherne, 624 F. App'x at 840.
All he had the authority to do was direct Collins' work and issue reprimands if that work was determined to be deficient. Id. As the "[t]he ability to direct another employee's tasks is simply not sufficient," and as there is no summary judgment evidence in the record that Housley could hire, fire, promote, demote or reassign Collins, Housley was not Collins' supervisor within the meaning of Vance. Vance, 133 S.Ct. at 439; see also e.g. Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 448 (5th Cir. 2014) (foreman could not be considered a supervisor within the meaning of Vance where he did not have the authority to "take tangible employment actions"). Accordingly, Collins' prima facie case of hostile work environment requires a showing that Noble knew or should have known about the harassment and failed to take prompt remedial action.
Jackson v. Honeywell Intern., Inc., ___ Fed. Appx. ___, No. 13-20575, 2015 WL 585882, at *6 (5th Cir. Feb. 12, 2015), citing Hockman v. Westward Communications, LLC, 407 F.3d 317, 325-26 (5th Cir. 2004). See also Spencer v. Schmidt Elec. Co., 576 Fed. Appx. 442, 446 (5th Cir. 2014)(To prevail on a hostile work environment claim a plaintiff must prove "(1) membership in a protected group; (2) harassment based on a factor rendered impermissible by Title VII; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment yet failed to address it promptly," i.e., failed to take prompt remedial action), citing Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012). To affect a term, condition or privilege of employment, the harassment "must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment" in the eyes of a reasonable person.
" '[A]n employee who proffers a fellow employee as a comparator [must] demonstrate that the employment actions at issue were taken 'under nearly identical circumstances.' " Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 450 (5th Cir. 2014) (per curiam) (quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quotation marks omitted)). The "nearly identical" standard is met when "the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.
Therefore, notwithstanding Smith's failure to brief the potential impact of Hamilton, we consider it. C.f. Spencer v. Schmidt Elec. Co., 576 Fed.Appx. 442, 446-47 (5th Cir. 2014) (per curiam)
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, 692 Fed.Appx. 478, 479, 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 Fed.Appx. 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. Schmidt Elec. Co. , 576 Fed.Appx. 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.
Townsel's ability to influence Graham does not suffice to turn Townsel into his victims' supervisor. See, e.g., Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 272-73 (1st Cir. 2014) (human resources officer who advised the victim's actual supervisor was not a supervisor); Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 447-48 (5th Cir. 2014) (per curiam) (foreman who bragged about his ability to influence employment actions but had to go up the ranks to do so was not a supervisor); McCafferty v. Preiss Enters., Inc., 534 F. App'x 726, 731 (10th Cir. 2013) (co-worker with potential to influence decisions was not supervisor when actual supervisor regularly visited the restaurant). And the ability to conduct performance evaluations does not turn Townsel into his victims' supervisor either.
Sanderson's investigation showed that Carr had committed a gross safety violation, which, according to company policy, was grounds for immediate termination. See McCoy v. City of Shreveport, 492 F.3d 551, 561-62 (5th Cir. 2007) (holding that the city's concerns for an officer's safety and the safety of others was a legitimate basis to take the officer's gun); see also Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 451 (5th Cir. 2014) (per curiam) (noting that the violation of a "zero-tolerance" safety policy sufficed as a legitimate, nondiscriminatory basis for termination); Morrison v. Weyerhaeuser Co., 119 F. App'x 581, 585 (5th Cir. 2004) (determining that four safety violations on the same day provided a sufficient, non-discriminatory reason for the employee's termination). Carr alleges only that African-American employees "would not tolerate" it if only Webb were fired, and that Carr's termination was undertaken "to keep peace in the plant."
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008) (alteration in original). Spencer v. Schmidt Elec. Co. 576 Fed. App'x 442 (5th Cir. 2014) (citing Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996)). Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).