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.
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.
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).
"In determining whether an employer's actions constitute a constructive discharge, [a court] ask[s] whether 'working conditions were so intolerable that a reasonable employee would feel compelled to resign.'" Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 452-53 (5th Cir. 2014) (quoting Suders, 542 U.S. at 141). Courts in the Fifth Circuit consider six factors in determining whether a reasonable employee would feel compelled to resign:
But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.Equal Emp'mt Opportunity Comm'n v. Boh Bros. Constr. Co., 731 F.3d 444, 452-53 (5th Cir. 2013) (quoting Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013)); accord Spencer v. Schmidt Elec. Co., 576 F. App'x 442, 446 (5th Cir. 2014) (citing Vance, 133 S. Ct. at 2439; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). In order to affect a term, condition, or privilege of employment, the harassment complained of must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.
"[A]n employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim." Spencer v. Schmidt Elec. Co., --- F. App'x ----, No. 13-20282, 2014 WL 3824339, at *4 (5th Cir. Aug. 5, 0214) (quoting Vance v. Ball State Univ., --- U.S. ----, 133 S. Ct. 2434, 2439 (2013)). However, a constructive discharge can constitute a tangible employment action if "a supervisor's official act precipitates the constructive discharge."