Fourth Circuit holds that authority to hire/fire is not essential to a finding of supervisor status.

by Kirsten E. Small

Employment lawyers should take note of Whitten v. Fred's, Inc. (09-1265) decided yesterday by the Fourth Circuit. The case is chock-full of important rulings. Although the court was addressing state law claims, South Carolina discrimination law mirrors federal law, and the court applied federal case law in its holdings. Therefore, it would seem that these holdings would apply to federal Title VII claims.

Whitten was allegedly sexually harrassed by the store manager (Green) of the Belton store where she worked. The harrassment occurred on Whitten's first two days working at the store, a Friday and Saturday. Whitten informed the district manager, who told Whitten she was "overreacting." Feeling otherwise, Whitten quit.

Whitten subsequently filed a complaint with the EEOC and requested that the complaint also be filed with the South Carolina Human Affairs Commission (SHAC).
The EEOC issued a right-to-sue letter, and Whitten subsequently filed suit. Because her federal claims were time-barred (more on this anon), Whitten pleaded a hostile environment claim only under state law.

The district court granted summary judgment to Fred's, concluding that Green's conduct was not imputable to Fred's because Green was not Whitten's supervisor. This was so, the court reasoned, because Green did not have the authority to hire or fire Whitten.

The Fourth Circuit reversed and remanded in an opinion written by Chief Judge Traxler.

1. Authority to hire/fire is not essential to a finding that an employee is a supervisor. The court held that the test for whether an employee is a supervisor is whether the employee's harrassing conduct is "aided by the agency relation." While this is always the case when an employee has hiring and firing authority, such authority is not a requirement because an employee can be a supervisor even when lacking such authority.

Here, Green was the highest ranking employee in the store, bore the formal title of store manager, and directed Whitten's activities and work schedule. The Court determined that this evidence established that Green was a supervisor.

2. State administrative remedies are exhausted when the EEOC forwards a complaint to a state agency. Fred's argued that Whitten had failed to exhaust administrative remedies because she filed her complaint with the EEOC rather than the SCHAC. The EEOC then forwarded the complaint to the SCHAC, which acknowledged receipt. The Court held this sufficient, reasoning that nothing in the statute requires that a complainant personally file with the SCHAC.

3. Untimeliness under federal law does not establish untimeliness under state law. A federal discrimination complaint must be filed within one year of the discrimination or 120 days of EEOC dismissal, whichever comes first. Whitten's federal claims were time-barred because she failed to file her complaint within 120 days of the EEOC's right-to-sue letter (although she filed within one year of the discrimination). Fred's argued that this time bar was also fatal to Whitten's state claims, which are subject (as a matter of state law) to the same limitations period. The Court disagreed, holding that the state statute refers only to the SCHAC, not to the EEOC. Since the SCHAC never dismissed Whitten's complaint, her federal suit was timely.