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Title VII ‘Supervisor’ Status Did Not Extend to Fast-Food Shift Manager

By Roger S. Achille  9/23/2013
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An employer could not be held liable for a shift manager’s weekend of engaging in sex and drug use with a female employee because the shift manager was not a “supervisor” under Title VII of the 1964 Civil Rights Act, the 10th U.S. Circuit Court of Appeals ruled.

Preiss Enterprises Inc., operator of a McDonald’s franchise restaurant in Cheyenne, Wyo., hired Megan McCafferty as a crew member. McCafferty was 15 years old at the time, although she indicated on her application that she was 16.

Peterson, 21, was a shift leader or shift manager at the restaurant, who directly oversaw the work of crew members. He directed the daily activities of employees, including assigning them to specific duties and scheduling breaks during shifts. Although individuals in his position had a “significant amount of influence or say” in hiring, firing and promotion decisions, Peterson lacked the authority to hire, fire, promote, demote or transfer employees.

On March 26, 2007, a manager asked McCafferty to cover a shift the following day. When McCafferty said she would need a ride from school, Peterson agreed to pick her up and drive her to the restaurant. The following day, Peterson arrived at the school and checked McCafferty out of class. The two then smoked marijuana and got something to eat. When McCafferty reminded Peterson that she had to go to work, he said she had been excused from her shift and asked if she wanted to “hang out.” McCafferty remained with the shift leader for the next two days, during which he provided her with alcohol and drugs and engaged in sexual activities with her. McCafferty was scheduled to work on March 28, 30 and 31 but did not report for duty or call in.

On March 29, McCafferty’s sister saw her and pulled her from Peterson’s car. The girl was taken to the Wyoming Behavioral Institute, where she received in-patient treatment from April 3 to June 4, 2007, for depressive disorder, post-traumatic stress disorder and drug dependence. Because McCafferty did not contact anyone at the restaurant to explain her absence, Preiss Enterprises treated her as having voluntarily quit.

McCafferty claimed that Preiss was liable for Peterson’s harassment because he was a “supervisor” under Title VII and took a tangible employment action against her. “A tangible employment action taken by the supervisor” is generally treated, “for Title VII purposes, as an act of the employer.” However, the district court concluded that Peterson did not qualify as a supervisor under Title VII and granted summary judgment in favor of the company. The 10th Circuit affirmed the ruling.

The court noted that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim—i.e., to effect a significant change in employment status. It was “clear” to the 10th Circuit that Peterson was not a supervisor for purposes of Title VII because he did not have the power to hire, fire, promote, demote or transfer employees. Although Peterson could ask a worker to cover an extra shift or stay beyond a scheduled shift and send someone home early in limited circumstances, the court maintained that these actions did not constitute “a significant change in benefits.” The court cautioned, “If mere influence in tangible employment decisions rendered a co-worker a supervisor, this exception would swallow the rule.”

McCafferty v. Preiss Enterprises Inc., 10th Cir., No. 12-8039 (Aug. 13, 2013).

Professional Pointer: Employers may limit their liability for an employee’s unlawful harassment by implementing anti-harassment policies and conducting training.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.

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