Retaliation Cases

Rachid Karatihy vs. Commonwealth Flats Development Corp. No. 12-P-1353. Suffolk. June 4, 2013. September 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Employment, Termination, Retaliation. Practice, Civil, Prima facie case. In a civil action in which the plaintiff alleged that his termination from his employment was the result of retaliation by the defendant employer for the plaintiff’s being a named plaintiff in a separate lawsuit claiming that the employer violated the Wage Act and the Tips Act, the judge properly granted summary judgment in favor of the employer, where the plaintiff failed to demonstrate that the termination was causally related to his protected activity of participating in the separate lawsuit. [255-257] Civil action commenced in the Superior Court Department on November 24, 2009. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her. Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant. ‘Doing business as Seaport Hotel and World Trade Center. Cypher, J. A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel. Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming that the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim. Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper. We disagree and affirm summary judgment for the hotel. Background. We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009. As a server, his duties included setting up for events and serving food and beverages. Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy. Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement. All of the “call-outs” are recorded and tracked for each employee. The attendance policy also placed limits on the number of allowable absences in a given period. This attendance policy is located in the hotel’s employee handbook, of which Karatihy acknowledged receipt on November 21, 2000, and again on January 20, 2006. Karatihy did not comply with the policy and began to have attendance issues in 2005, receiving his first written warning on August 30, 2006, and a second on September 7, 2007. After receiving multiple additional warnings and poor yearly evaluations because of his attendance, and after violating the attendance policy through the next two years, Karatihy was terminated in August, 2009. In December, 2007, Karatihy became a named plaintiff in a suit brought by banquet workers against the hotel for violating their rights under the Wage Act and the Tips Act. The lawsuit was settled in favor of the banquet workers in May, 2009, and the award was dispersed in August of the same year. No other named plaintiffs from the Wage Act and Tips Act suit have been terminated since the conclusion of the lawsuit. Other employees having attendance and tardiness issues have been terminated according to the records provided by the hotel. Discussion. Summary judgment decisions are reviewed de novo to decide “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Karatihy argues that he was treated differently while the lawsuit was pending, that the hotel selectively enforced its attendance policy by terminating him but not others with similar violations, and that the hotel’s attendance records are incorrect. Karatihy’s arguments are deficient in showing causation, an essential element of a retaliation claim, even when the facts are viewed in the light most favorable to his case. The hotel demonstrated that Karatihy could not prove the essential elements of the claim at trial. See Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539, 544 (2004) (summary judgment appropriate when moving party demonstrates that nonmoving party has no reasonable expectation of proving essential elements of claim at trial). The elements Karatihy must establish to prove a retaliation claim are that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the adverse employment action was causally related to the protected activity. Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). The first element, participating as a named plaintiff in the lawsuit, and the second element, being terminated from his job, are not disputed by either party. Karatihy argues that there is sufficient evidence to show that the protected activity caused the adverse action, while the hotel maintains that there is no proof in the record to demonstrate causation. “[T]he mere fact that one event followed another is not sufficient to make out a causal link.” Id. at 592, quoting from MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). That an employer knows of an employee’s protected activity and thereafter takes some adverse employment action against that employee does not, alone, establish causation. Ibid. Otherwise, an employee could inhibit a “well-deserved discharge” by participating in protected activity. Ibid. Here, causation cannot be inferred by a jury because Karatihy violated the attendance policy before and during his protected activity, see id. at 594 (no causation Inference when adverse employment actions predated protected activity); others not named in the lawsuit were terminated for violating the policy, contrast O 'Brien v. Massachusetts Inst. of Technology, 82 Mass. App. Ct. 905, 907 (2012) (evidence of different standards for plaintiff); and, according to the hotel’s records, no other named plaintiffs in the lawsuit have been terminated. As support for his position, Karatihy points to O’Brien, where the employee “presented sufficient evidence to send” his retaliation claim to a jury, and summary judgment for the employer was vacated. Id. at 905. In O’Brien, the employee received only one disciplinary action in the eight years before he filed a complaint with the United States Department of Labor, but received a number of verbal and written warnings after filing the complaint. Id. at 906-907. The “unacceptable” conduct that occurred after the protected activity was one that other employees also had done, but for which none had been terminated; in fact, the conduct was “common practice” for other employees. Ibid. In contrast, Karatihy violated the hotel’s attendance policy multiple times before becoming involved with the protected activity, and continued to violate the policy multiple times during and after the suit. He received numerous warnings in writing, with two being called a “final written warning.” See Mole, supra at 600-602 (directed verdict for employer proper where employee received multiple subpar evaluations before and during his protected activity, resulting in his termination, and was not able to prove causation). Furthermore, when other employees of the hotel violated the attendance policy, they too were terminated. All of Karatihy’s evidence comes from his deposition and his bare assertions. Contrast O’Brien, supra (another employee submitted affidavit stating there were different standards for O’Brien compared to standards for coworkers). Karatihy has nothing to support his claims, and the Supreme Judicial Court has held that “the bare assertion of inferences . . . raises no genuine issue of material fact.” Community Natl. Bank v. Dawes, 369 Mass. 550, 559 (1976). No other employees involved in the lawsuit came forward to report that they had been treated differently or that they had information of Karatihy being treated differently. In addition, while Karatihy points to erroneous record-keeping by the hotel, he presents no evidence of errors. We see no viable way to infer causation. Karatihy has no expectation of proving that his involvement in a protected activity caused a retaliatory adverse action. Judgment affirmed. Order denying motion for reconsideration affirmed. He alleges that he was given more work and fewer hours, and that the managers had people following him. The hotel argues that even if Karatihy presented sufficient evidence of the required elements for his retaliation claim, he also must show that the hotel’s reason for the adverse employment action was a pretext for retaliation under the established three-step order of proof. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-445 (1995); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-118 (2000). See also Smith v. Winter Place LLC, 447 Mass. 363, 364 n.4 (2006) (court found “no reason to interpret the retaliation provision of the wage laws differently” from antidiscrimination retaliation laws under G. L. c. 151B). Because Karatihy did not prove the prima facie case for retaliation, we need not address this issue.

ROBERT PAUL MORRIS, Plaintiff v. SCENERA RESEARCH, LLC, and RYAN C. FRY, Defendants No. COA12-1481 Filed 20 August 2013 1. Employer and Employee — Wage and Honr Act — Retaliatory Employment Discrimination Act — bonus earned — bonus calculable The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by denying defendants’ motions for directed verdict on plaintiff’s Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) claims and for JNOV. Plaintiff presented more than a scintilla of evidence in support of his position that he earned the $675,000 in issuance bonuses under his employer’s bonus policy. Furthermore, the question of calculability under the WHA was properly presented to the jury for review, the formula offered by plaintiff was at least one reasonable way to calculate those bonuses, and the evidence relied on for that formula was supported in the record. 2. Employer and Employee — Wage and Hour Act — liquidated damages — notice of change in bonus plan — lack of good faith or objective reasonableness The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by awarding plaintiff $210,000 in liquidated damages under the Wage and Hour Act (WHA). Defendants failure to provide plaintiff with notice of the change in his bonus plan constituted sufficient evidence to support the business court’s finding that defendants did not act in good faith or with objective reasonableness and, therefore, justified the business court’s award of liquidated damages in this case. 3. Employer and Employee — Wage and Hour Act — liquidated damages — good faith and objective reasonableness The business court did not err in a Wage and Hour Act (WHA) case by failing to grant liquidated damages in response to the jury’s award of issuance bonuses for the 150 patents pending with the patent office. Defendant employer made a proper showing of good faith and objective reasonableness as to its failure to pay the issuance bonuses. 4. Damages and Remedies — treble—Retaliatory Employment Discrimination Act — no willful violation The business court did not err by declining to treble plaintiffs $390,000 jury award under the Retaliatory Employment Discrimination Act (REDA). There was competent evidence to support the business court’s determination that defendant did not willfully violate REDA. 5. Attorney Fees — Wage andHour Act — Retaliatory Employment Discrimination Act — apportionment—common nucleus of facts The business court’s award of attorneys’ fees in a Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) case was reversed and remanded to the trial court for further findings of fact and conclusions of law regarding whether plaintiff’s claims arose from a common nucleus of operative fact and, thus, whether he was entitled to all of his attorneys’ fees. 6. Employer and Employee — Wage and Hour Act — election of remedies The trial court erred in its summary judgment order in a Wage and Horn- Act (WHA) case by foreclosing plaintiff’s right to elect between money damages or rescission of the patent assignments. The case was remanded to the trial court with instructions that plaintiff is entitled to elect between his WHA [damages] award or rescission of his patent assignments. 7. Appeal and Error — issue not reached Plaintiff’s final argument in a Wage and Hour Act (WHA) case was not reached because the Court of Appeals remanded the case on the question of election of remedies between rescission and damages. Appeal by Defendants from order entered 27 June 2012 and judgment entered 14 May 2012 by Judge James L. Gale in Wake County Superior Court. Appeal by Plaintiff from order entered 27 June 2012, judgment entered 14 May 2012, and memorandum opinion and order entered 4 January 2012 by Judge James L. Gale in Wake County Superior Court. Heard in the Court of Appeals 21 May 2013. Young Moore and Henderson P.A., by Walter E. Brock, Jr., and Andrew P. Flynt, for Plaintiff. Kilpatrick Townsend & Stockton LLP, by Adam H. Chames and John M. Moye; and Womble Carlyle Sandridge & Rice, by Burley B. Mitchell, Jr., for Defendants. STEPHENS, Judge. Procedural History and Factual Background This case concerns a dispute regarding compensation and ownership rights between Plaintiff Robert Paul Morris (“Morris”) and his employer, Scenera Research, LLC (“Scenera”), for inventions developed by Morris during his employment with Scenera. On 25 September 2009, Morris filed a complaint against Scenera and its chief executive officer, Ryan C. Fry (“R. Fry”) — collectively, “Defendants” — in Wake County Superior Court, alleging violations of the North Carolina Wage and Hour Act (“WHA”) and the Retaliatory Employment Discrimination Act (“REDA”) as well as claims for fraud, unjust enrichment, and breach of contract. R. Fry is the son of Stan Fry (“S. Fry”), who founded Scenera under the name “IPAC, LLC.” On 6 October 2009, Defendants filed notice of removal to the United States District Court for the Eastern District of North Carolina. Sixteen months later, on 16 February 2011, the District Court remanded the case for lack of subject matter jurisdiction to Wake County Superior Court, where it was designated a complex business case and assigned to the Honorable James L. Gale of the North Carolina Business Court (“the business court”). Defendants filed their second amended answer and counterclaims on 31 March 2011, denying Morris’s material allegations and, inter alia, seeking declaratory judgments that Morris: (1) was not entitled to rescind any patent ownership assignment he had already made to Scenera, (2) was obligated to assign ownership of unassigned inventions to Scenera, and (3) had resigned his employment and was not entitled to further bonus payments. Scenera also asserted claims that Morris breached his fiduciary duties and breached his obligation to continue assigning patents to Scenera. On 24 October 2011, Morris moved for partial summary judgment, and Scenera moved for summary judgment. Morris sought to dismiss certain of Scenera’s counterclaims and defenses, and Scenera sought to have the business court declare that Morris was “hired to invent” and, thus, that Scenera owned the rights to the inventions Morris had developed while working there. Scenera also sought to dismiss Morris’s claims of fraud, unjust enrichment, and retaliatory discrimination. The business court addressed those motions on 4 January 2012 and described the background facts as follows: Morris was aformer [International Business Machines Corporation] employee with substantial training in software. He later was employed by Flashpoint Technologies, a company founded by S. Fry. S. Fry had also formed a company... known as IPAC. IPAC later became known as Scenera. While employed by Flashpoint, Morris and IPAC entered a [c]onfidentiality [agreement which included mutual non-disclosure obligations and pursuant to which any confidential information remained the property of the disclosing party. . . . Morris was not at that time an IPAC employee[,] but contracted with IPAC. S. Fry hired Morris in 2004 as Scenera’s first employee. Morris had a series of discussions with S. Fry preceding this employment, the extent, nature, and significance of which are disputed [as to Morris’s ownership rights over the inventions he developed at Scenera]. Morris testified that he expressed an interest in inventing but was neither obligated to nor expected to invent as a part of the regular employment duties he would undertake for Scenera, and that his base salary was for the substantial duties other than inventing for which he was responsible. Morris and Scenera did not sign a written employment agreement. Morris contends that the [pjarties understood that the ownership provisions of the [c]onfidential[ity] [agreement that Morris signed while employed by Flashpoint continued. Scenera contends that there was no such agreement and that once Morris was hired to invent for Scenera, he had no ownership rights in inventions made during the course of that employment. ... It is undisputed that during certain times of Morris’s employment, in addition to his base salary, Morris was entitled to receive up to $10,000.00 for each of his inventions on which Scenera pursued patents, with $5,000.00 being earned when a patent application was submitted and $5,000.00 being earned when a patent issued____ Morris proved to be a prolific inventor. By July 2009 when Morris’s employment with Scenera ended, Morris contends that the unpaid amount that had accrued under his bonus compensation plan was $210,000.00. . . . While Morris concedes that he voluntarily suspended bonus payments beginning at the end of 2007 as Scenera undertook to formulate an alternative compensation program, he contends that the bonus program was not cancelled, and that he continued to make patent assignments during 2008 only because he knew he was entitled to compensation in addition to his base salary. Morris contends that R. Fry promised . . . the offered alternative compensation would be tied to Scenera’s profitability[,] more favorably reflect Morris’s contribution to that profitability, and better reflect Morris’s risk and his reward. Morris alternatively claims that even if the bonus program had been terminated at year-end 2007, R. Fry in July 2008 promised that the bonus system would be re[-]implemented for Morris if Scenera did not meet certain conditions ..., such as providing Morris with an individual written employment contract and an appropriate incentive compensation program, and that these conditions were then not met. Scenera contests Morris’s recollection of these conversations, and further claims that if R. Fry made promises, he kept them by proposing a[n] employment contract and an employee incentive program. Ultimately, no agreement on any alternative compensation plan was ever reached and no written employment agreement was executed. Morris claims that these proposals did not satisfy promises R. Fry made and that other documents prove that R. Fry never had any intention of keeping his promises. Scenera claims R. Fry had never made promises specific enough to be enforceable [,] but rather had only agreed to make a proposal for further negotiation, which he did, and that essentially Morris seeks to enforce “an agreement to agree.” Morris testified to his frustration with the lack of progress toward the promised incentive plan and written employment agreement and that he began in 2008 to press R. Fry for progress. He continued to press in 2009, ultimately hiring a lawyer who threatened on Morris’s behalf to bring a wage claim under [the WHA] . . . for the $210,000.00 bonus compensation that had accrued and which Scenera refused to pay after Morris’s demand. The parties disagree both on the facts leading up to the end of Morris’s employment in July [of] 2009 and whether that end should be treated as a resignation or a termination. Morris claims that he was terminated in retaliation for his threat to bring a wage claim, which is a protected activity, such that he is entitled to recover under [REDA], Scenera contends that Morris had made clear his intention to leave the company and his attorney had indicated that the only option was to negotiate a severance agreement, so that, as a result, Morris had [“]effectively resigned[”j and Scenera accepted [this] resignation. Scenera alternatively contends that even if it had terminated [Morris], the termination was not retaliatory because [Scenera] had an independent right to terminate him because he refused to make any further invention assignments to Scenera while being legally obligated to do so. Scenera further claims that Morris, during the course of his employment, breached fiduciary duties owed to Scenera.... In that context, the business court denied Morris’s motion for partial summary judgment in its entirety. It granted Scenera’s motion on the question of whether Morris was “hired to invent” and on Morris’s fraudulent inducement, and unjust enrichment claims. The business court otherwise denied Scenera’s motion. The remaining claims — Morris’s breach of contract, WHA, and REDA claims plus Scenera’s patent ownership and breach of assignment counterclaims — were tried before a jury beginning 30 January 2012. In its judgment entered after the trial, the business court described the evidence as follows: ... Morris was employed by Scenera and ... his employment ended on July 10, 2009. . . . [B]oth Scenera and Defendant [R. Fry] were Morris’s employers under the [WHA] and [REDA]. ... [0]n the date Morris’s employment ended[,] July 10, 2009, Scenera had 150 pending patent applications on inventions for which Morris was the inventor. . . . Morris, by the time of trial, had assigned executed written agreements on all but a few of these inventions. [A]ny . . . bonus which [was] owed qualifie[d] as “wages” under the [WHA], . . . The evidence for both parties indicated that Morris and Scenera reached [an] agreement on some changes to be implemented as of January 1, 2008, in consideration of Defendants potentially implementing a company-wide incentive compensation plan---- Morris contended that he [was] entitled to recover $210,000 for application and issuance bonuses which [accrued on 10 July 2009].... . •.. [Negotiations over disputed bonuses were undertaken in 2009 when Scenera requested that Morris execute a written employment agreement. [T]hroughout these negotiations, Morris consistently made clear his belief that he was entitled to bonuses that had continued to accrue after January 1, 2008. . . . [L]ate in the negotiations for an employment agreement^ however,] Morris also demanded that he [should] be paid future patent issuance bonuses irrespective of whether he remained employed. . . . [D]uring [those] negotiations [,] Scenera considered payment of [the] $210,000 without admitting that this sum was being paid as earned wages, but. . . refused to consider paying patent issuance bonuses on patents issued after Morris’s employment ended. Rather, Defendants’ evidence was that Scenera had a consistent policy [, which] applied to all employees, including Morris, that payment of issuance bonuses was conditioned on continued employment.... As related to the REDA claim, Morris presented evidence that he had during the term of his employment asserted claims that he was entitled to issuance bonuses irrespective of his continued employment. The evidence also established that he refused to assign further inventions or sign further patent applications until the wage dispute was resolved. [W]hen the parties could not agree on ... terms ... for a written employment agreement, Morris advised Scenera that an employment agreement appeared out of reach and that he would only consider a severance agreement whereby [he] would continue to support the patent portfolio as an independent contractor. Morris [also] suggested that he was entitled to challenge Scenera’s ownership of patents or applications based on [his] inventions. Ultimately, Morris’s employment ended and no independent contractor agreement was ever [established],... Morris introduced evidence that Scenera has enjoyed a [90%] average rate of patents issued from patent applications, and that the success rate on applications for Morris’s inventions was somewhat higher.... Morris’s [WHA] claim was for the wages he contended were due, along with statutory penalties. His REDA claim was to recover damages from his retaliatory termination. Defendants denied any liability under [both]. ... Scenera... counterclaimed for damages because of Morris’s failure to support Scenera’s patent rights. Defendants . . . submitted expert evidence to prove their damages. Defendants further contended that Morris refused to seek alternative employment after July 10,2009, such that any recovery for retaliatory discharge must be reduced for failure to mitigate damages. At the close of all the evidence, the business court granted Defendants’ motion for directed verdict on the issue of patent ownership and . denied Defendants’ motion for directed verdict as to Morris’s WHA and REDA claims. The jury reached a unanimous verdict on 15 February 2012, awarding Morris: (1) $210,000 in patent bonuses for patent applications filed or patents issued between 1 Januaiy 2008 and 17 June 2009; (2) $675,000 in patent bonuses for patent applications pending as of 17 June 2009; and (3) $390,000 under REDA after a reduction for Morris’s failure to mitigate damages. Following that verdict, Morris requested judgment for the amount awarded plus supplemental relief, including liquidated damages and attorneys’ fees under the WHA as well as treble damages and attorneys’ fees under REDA. On 14 May 2012, the business court issued its judgment on the jury award and Morris’s motion for supplemental relief, declining to treble Morris’s $390,000 in damages under REDA, but granting $450,000 for all attorneys’ fees and $210,000 in liquidated damages under the WHA because “Defendants [did not] demonstrate[] good faith or reasonable grounds for a belief that their failure to pay application and issuance bonuses accruing during the period of January 1, 2008 through July 10, 2009 was not a violation of the [WHA].” The court also declared that: (1) “Scenera is the owner of each of the inventions, patent applications, and patents identified in . . . Morris’s [c]omplaint [because o]wnership of those inventions vested in Scenera at the time of invention”; (2) Morris shall assign any unassigned patent applications to Scenera; and (3) Scenera will not recover any damages for its patent ownership and breach of assignment counterclaims. On 30 May 2012, Defendants moved for judgment notwithstanding the verdict (“JNOV”) or, in the alternative, for a new trial. The business court denied that motion on 27 June 2012. Both parties appealed. Discussion . I. Defendants’Appeal Defendants make three arguments on appeal. First, they contend that the business court erred in denying their motions for directed verdict on Plaintiffs WHA and REDA claims and for JNOV. Second, Defendants contend the business court erred by awarding $210,000 in liquidated damages under the WHA. Third, Defendants assert that, if the business court’s judgment is reversed, its grant of attorneys’ fees should be vacated. We find no error. A. Directed Verdict and JNOV “The standard of review of directed verdict [or JNOV] is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citations omitted); Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). “[A n]on-movant’s evidence which raises a mere possibility or conjecture cannot defeat a motion for directed verdict. If, however, the non-movant shows more than a scintilla of evidence, the court must deny the motion.” McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350, disc. review denied, 327 N.C. 140, 394 S.E.2d 177 (1990) (citation omitted); see also Norman Owen Trucking, Inc. v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998) (“The [JNOV] motion should be denied if there is more than a scintilla of evidence supporting each element of the non-movant’s claim.”). i. Evidence that Morris Earned the Issuance Bonuses Under the WHA In support of their argument that the business court should have granted their motions for directed verdict and JNOV, Defendants assert that Morris presented “no evidence” that he “earned [the $675,000 in issuance] bqnuses under Scenera’s bonus policy____” We disagree. “[T]he [WHA] requires an employer to ... pay those w

G-K-, 26 I&N Dec. 88 (BIA 2013) ID 3776 (PDF) (1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 ("UNTOC"), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings. (2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987 for the United States Apr. 18, 1988). (3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.

Maetta VANCE, Petitioner v. BALL STATE UNIVERSITY. No. 11-556. Supreme Court of the United States Argued Nov. 26, 2012. Decided June 24, 2013. Daniel R. Ortiz, Charlottesville, VA, for Petitioner. Sri Srinivasan, for the United States as amicus curiae, by special leave of the Court, supporting neither party. Gregory G. Garre, Washington, DC, for Respondents. David T. Goldberg, Donahue & Goldberg, LLP, New York, NY, Daniel R. Ortiz, Counsel of Record, University of Virginia School of Law, Supreme Court Litigation Clinic, Charlottesville, VA, for Petitioner. Scott E. Shockley, Lester H. Cohen, Shawn A. Neal, Defur Voran LLP, Muncie, IN, Gregory G. Garre, Counsel of Record, Jessica E. Phillips, Roman Martinez, Latham & Watkins LLP, Washington, DC, for Respondent. Justice ALITO delivered the opinion of the Court. In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), namely, who qualifies as a "supervisor" in a case in which an employee asserts a Title VII claim for workplace harassment? Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "supervisor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. 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. Id., at 807, 118 S.Ct. 2275; Ellerth, supra, at 765, 118 S.Ct. 2257. Under this framework, therefore, it matters whether a harasser is a "supervisor" or simply a co-worker. We hold that an 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, and we therefore affirm the judgment of the Seventh Circuit. I Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the University Banquet and Catering division of Dining Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant. Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance's interactions with a fellow BSU employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis' duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. See No. 1:06-cv-1452-SEB-JMS, 2008 WL 4247836, at *12 (S.D.Ind., Sept. 10, 2008) ("Vance makes no allegations that Ms. Davis possessed any such power"); Brief for Petitioner 9-11 (describing Davis' authority over Vance); Brief for Respondent 39 ("[A]ll agree that Davis lacked the authority to take tangible employments [sic ] actions against petitioner"). In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. 646 F.3d 461, 467 (C.A.7 2011). Vance complained that Davis "gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her." Ibid. She alleged that she was "left alone in the kitchen with Davis, who smiled at her"; that Davis "blocked" her on an elevator and "stood there with her cart smiling"; and that Davis often gave her "weird" looks. Ibid. (internal quotation marks omitted). Vance's workplace strife persisted despite BSU's attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis' creation of a racially hostile work environment. Complaint in No. 1:06-cv-01452-SEB-TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5-6. Both parties moved for summary judgment, and the District Court entered summary judgment in favor of BSU. 2008 WL 4247836, at *1. The court explained that BSU could not be held vicariously liable for Davis' alleged racial harassment because Davis could not " 'hire, fire, demote, promote, transfer, or discipline' " Vance and, as a result, was not Vance's supervisor under the Seventh Circuit's interpretation of that concept. See id., at *12 (quoting Hall v. Bodine Elect. Co., 276 F.3d 345, 355 (C.A.7 2002) ). The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. 2008 WL 4247836, *15. The Seventh Circuit affirmed. 646 F.3d 461. It explained that, under its settled precedent, supervisor status requires " 'the power to hire, fire, demote, promote, transfer, or discipline an employee.' " Id., at 470 (quoting Hall,supra, at 355 ). The court concluded that Davis was not Vance's supervisor and thus that Vance could not recover from BSU unless she could prove negligence. Finding that BSU was not negligent with respect to Davis' conduct, the court affirmed. 646 F.3d, at 470-473. II A Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment. In the leading case of Rogers v. EEOC, 454 F.2d 234 (1971), the Fifth Circuit recognized a cause of action based on this theory. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (describing development of hostile environment claims based on race). The Rogers court reasoned that "the phrase 'terms, conditions, or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." 454 F.2d, at 238. The court observed that "[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Ibid. Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. See Ellerth, 524 U.S., at 768-769, 118 S.Ct. 2257 (THOMAS, J., dissenting) (citing cases). When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. See Meritor, supra, at 64-67, 106 S.Ct. 2399. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). B Consistent with Rogers, we have held that an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher, 524 U.S., at 789, 118 S.Ct. 2275. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff. In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plaintiff's "supervisor." In those instances, an employer may be vicariously liable for its employees' creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meritor, supra, at 72, 106 S.Ct. 2399; Ellerth, supra, at 755, 118 S.Ct. 2257. Under the Restatement, "masters" are generally not liable for the torts of their "servants" when the torts are committed outside the scope of the servants' employment. See 1 Restatement (Second) of Agency § 219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant's duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher, supra, at 793-796, 118 S.Ct. 2275; Ellerth, supra, at 757, 118 S.Ct. 2257. But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was "aided in accomplishing the tort by the existence of the agency relation." Restatement 481; see Faragher,supra, at 802-803, 118 S.Ct. 2275; Ellerth, supra, at 760-763, 118 S.Ct. 2257. Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a "supervisor" as opposed to a co-worker. First, the Court held that an employer is vicariously liable "when a supervisor takes a tangible employment action," Ellerth, supra, at 762, 118 S.Ct. 2257; Faragher, supra, at 790, 118 S.Ct. 2275 -i.e., "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S., at 761, 118 S.Ct. 2257. We explained the reason for this rule as follows: "When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation.... A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors." Id., at 761-762, 118 S.Ct. 2257. In those circumstances, we said, it is appropriate to hold the employer strictly liable. See Faragher, supra, at 807, 118 S.Ct. 2275; Ellerth,supra, at 765, 118 S.Ct. 2257. Second, Ellerth and Faragher held that, even when a supervisor's harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor's creation of a hostile work environment if the employer is unable to establish an affirmative defense. We began by noting that "a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation." Ellerth, supra, at 763, 118 S.Ct. 2257; see Faragher, 524 U.S., at 803-805, 118 S.Ct. 2275. But it would go too far, we found, to make employers strictly liable whenever a "supervisor" engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. Faragher, supra, at 807, 118 S.Ct. 2275; Ellerth, 524 U.S., at 765, 118 S.Ct. 2257. This compromise, we explained, "accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees." Id., at 764, 118 S.Ct. 2257. The dissenting Members of the Court in Ellerth and Faragher would not have created a special rule for cases involving harassment by "supervisors." Instead, they would have held that an employer is liable for any employee's creation of a hostile work environment "if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur." Ellerth,supra, at 767, 118 S.Ct. 2257 (THOMAS, J., dissenting); Faragher, supra, at 810, 118 S.Ct. 2275 (same). C Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a "supervisor" or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. E.g., 646 F.3d, at 470 ; Noviello v. Boston, 398 F.3d 76, 96 (C.A.1 2005) ; Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (C.A.8 2004). Other courts have substantially followed the more open-ended approach advocated by the EEOC's Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another's daily work. See, e.g., Mack v. Otis Elevator Co., 326 F.3d 116, 126-127 (C.A.2 2003) ; Whitten v. Fred's, Inc., 601 F.3d 231, 245-247 (C.A.4 2010) ; EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, at *3 (hereinafter EEOC Guidance). We granted certiorari to resolve this conflict. 567 U.S. ----, 133 S.Ct. 23, 183 L.Ed.2d 673 (2012). III We hold 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, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, supra, at 761, 118 S.Ct. 2257. We reject the nebulous definition of a "supervisor" advocated in the EEOC Guidance and substantially adopted by several courts of appeals. Petitioner's reliance on colloquial uses of the term " supervisor" is misplaced, and her contention that our cases require the EEOC's abstract definition is simply wrong. As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker's labor to some ill-defined degree. On the contrary, the Ellerth / Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors. The Ellerth / Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit's understanding of the concept of a "supervisor," with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors. A Petitioner contends that her expansive understanding of the concept of a "supervisor" is supported by the meaning of the word in general usage and in other legal contexts, see Brief for Petitioner 25-28, but this argument is both incorrect on its own terms and, in any event, misguided. In general usage, the term "supervisor" lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another's work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to "one who inspects and directs the work of others"). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a "tangible employment action." See, e.g ., Webster's Third New International Dictionary 2296, def. 1(a) (1976) ("a person having authority delegated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to recommend such action"). A comparison of the definitions provided by two colloquial business authorities illustrates the term's imprecision in general usage. One says that "[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments." Another says exactly the opposite: "A supervisor generally does not have the power to hire or fire employees or to promote them." Compare Ellerth, 524 U.S., at 762, 118 S.Ct. 2257 ("Tangible employment actions fall within the special province of the supervisor"). If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U.S.C. § 2021(18) (defining the "supervisor" of a school within the jurisdiction of the Bureau of Indian Affairs as "the individual in the position of ultimate authority at a Bureau school"). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U.S.C. § 152(11) (defining a supervisor to include "any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment"); 42 U.S.C. § 1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may "hire, fire, supervise, and manage the individuals providing such services"). Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions. See, e.g., 5 CFR §§ 9701.511(a)(2), (3) (2012) (referring to a supervisor's author