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Mississippi Commission on Environmental Quality Summary of Meeting Held October 24, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on October 24, at the offices of the Mississippi Department of Environmental Quality in Jackson. Chat Phillips chaired the meeting attended by all members. Minutes from the last meeting held in August 2013 were approved. Following a prepared agenda, items considered were as follows:

BROWNFIELD AGREEMENT

The Commission voted to approve the Brownfield Agreement between the Commission and The District Land Development Company, LLC regarding the remediation of property located just east of I-55 and north of Eastover Drive in Jackson, Mississippi. Buildings slated for demolition on the site, known as the former “Mississippi School for the Blind Brownfield Agreement Site,” contained asbestos and old transformers needing proper disposal.

ADOPTION OF ADMENDMENTS TO MISSISSIPPI ADMINSTRATIVE CODE

The Commission voted to adopt the following amendments to the Mississippi Administrative Code (MAC):

(1)  Air Emission Regulation for the Prevention, Abatement, and Control of Air Contaminants (11 MAC, Part 2, Chapter 1) – the amendments involve the adoption, by reference, of amendments to federal New Source Performance Standards, National Emission Standards for Hazardous Air Pollutants, and the Consolidated Air Rule as promulgated by the U.S. Environmental Protection Agency (EPA).

(2)  Ambient Air Quality Standards (11 MAC, Part 2, Chapter 4) – the amendments concern the adoption, by reference, of amendments to the Federal National Ambient Air Quality Standards as promulgated in 40 CFR Part 50.

(3)  Regulations for Lead-Based Paint Activities (11 MAC, Part 2, Chapter 9) – the amendments concern changes to make the regulations consistent with amendments to federal EPA regulations and the Mississippi Lead-Based Paint Activity Accreditation and Certification Act, as amended by Mississippi Senate Bill 2688 (Regular Session 2013).

PRESENTATION ON GEOLOGIC IMPORTANCE – PIKE COUNTY

Over the next few Commission meetings, the MDEQ staff will present work, research and geology of a few key counties within the state in order to highlight the importance of geological understanding to Mississippi and the mission of MDEQ. At this meeting, the staff provided a presentation on the geological significance and importance of Pike County.

CERTIFICATIONS APPROVED

Asbestos:                     220 certifications

Lead Paint:                  102 certifications

Underground
Storage Tanks:            8 certifications

Wastewater
Operator:                      57 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following five (5) emergency clean-up expenditures occurred since the last report:

Complete Environmental & Remediation in the counties of:

Leake and Clarke.

United States Environmental Services in the counties of:

Rankin, Copiah and Simpson

Thirty-eight (38) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

ADMINISTRATIVE ORDERS APPROVED

Program Area Number of Orders Penalty Range
Large Construction Storm Water

2

 $1,400 to $25,000
Hazardous Waste

3

 $1,800 to $39,655
Title V

4

 $0 to $15,000
Hot Mix Asphalt

1

 $45,000
Pretreatment

1

 $12,500
Wet Deck

1

 $3,500
Synthetic Mining

1

 $19,000
UST

2

 $4,440 to $5,000
Water Well Contractor’s License

9

 $100
Other

9

 $0 to $5,000

The remaining five (5) orders were not enforcement-oriented, but rather dealt with the approval of amendments, applications for the Brownfields Program, participation in the Uncontrolled Site Voluntary Evaluation Program, and other routine administrative matters.

The next Commission meeting is scheduled for November 21, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi.

This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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Brunini’s Sam Kelly Selected as Construction Industry Person of the Year

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Sam Kelly of Brunini, Grantham, Grower & Hewes, PLLC has been selected as the Construction Industry Person of the Year by the Mississippi Associated Builders and Contractors (MABC).

Kelly was recognized at the annual Mississippi ABC Merit Awards Banquet at the Jackson Country Club on November 1 and delivered a speech after the award was presented.

“This is a high honor for which Sam is well deserving.  We are extremely proud of his achievement and this outstanding recognition for the leadership he provides to the construction industry and to our firm in this important practice area,” said Granville Tate, Jr., chairman of Brunini’s Board of Directors.

The Associated Builders and Contractors (ABC), Inc. is the fastest-growing construction trade association in America, operating through 25,000 nationwide member firms. The Mississippi Chapter of ABC is the largest trade association of its kind in the state, setting standards for the industry in its attempt to promote a fair and profitable business way of life.

Brunini’s Kelly is an active member of and serves as General Counsel to the Mississippi Associated Builders and Contractors and the Mississippi Road Builders Association.  He is also an active member of the Associated General Contractors of Mississippi.  Kelly’s practice focuses on the construction industry and includes contract preparation and negotiations, bid protests, claim preparation and evaluation and dispute resolution.  In the field of Construction Litigation, he has been recognized by Best Lawyers® in America, Chambers USA: America’s Leading Lawyers, and Mid-South Super Lawyers®.  Kelly was named Best Lawyer® Lawyer of the Year 2012 Jackson-MS in Construction Litigation.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held October 8, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on October 8, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Dennis Riecke chaired the meeting attended by all Board members. Minutes from the September meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

Surface Mining Bond Releases:

N.L. Carson Construction Company, Inc.
Neshoba      P09-019

Eutaw Construction Company, Inc.
Madison       P10-009T

Hill Brothers Construction Company
Winston       P04-004A

Oddee Smith Construction Company
Lincoln         P99-018

Hammett Gravel Company
Holmes        P97-027

Hammett Gravel Company
Holmes        P98-004

Hammett Gravel Company
Holmes        P03-006A

Hammett Gravel Company
Holmes        P00-059

Hammett Gravel Company
Holmes        P02-039

The surface mining bond releases listed above were approved in accordance with the staff’s recommendation.

The next Permit Board meeting will be held on November 12, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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Mississippi Environmental Quality Permit Board Summary of Meeting Held September 10, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on September 10, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Leslie Royals chaired the meeting attended by all but two Board members. Minutes from the August meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

EVIDENTIARY HEARING SCHEDULED FOR OCTOBER 8, 2013

On May 14, 2013, the Board voted to grant the issuance of a water quality certification to Alliance Consulting Group, LLC (Pearl River County) for a proposed sand processing facility (WQC2012071). Following the issuance of this certification, representatives for the Ravenwood Subdivision, which is located near the proposed site, requested an evidentiary hearing. This evidentiary hearing was scheduled to occur following the regularly scheduled October 8 meeting of the Board. Legal Counsel for Alliance Consulting Group, LLC appeared before the Board to request (1) a Motion to Intervene and (2) a Motion for Continuance, citing the need to address some corporate organizational issues prior to the scheduled evidentiary hearing. Per MDEQ’s legal staff recommendation, the Board voted to approve both motions. Consequently, the evidentiary hearing will be rescheduled. MDEQ will notify the Board and other appropriate parties of the new date once it is scheduled.

OFFICE OF POLLUTION CONTROL

Macland Disposal Inc., II, a wholly owned subsidiary of Waste Recyclers Holdings, LLC (Jackson County) 

Reissuance of Water Quality Certification
WQC2006062

Macland Disposal Inc., II has applied for reissuance of its Water Quality Certification in order to fill approximately 28.5 acres associated with an approximately 30 acre expansion of the Class I Rubbish facility. MDEQ received several letters of concern during the public comment period. These letters stated concerns regarding the design and construction of the expansion of the facility, potential flooding and possible groundwater contamination. Per staff’s recommendation, the Board voted to approve reissuance of the certification.

W.L. Burle, PA, Shell Go Number 512 (Carroll County)

Issuance of Coverage under Underground
Storage Tank Groundwater Remediation
General Permit      MSG120220

The Shell Go Number 512 site has been identified as having some high vapor issues and proposes to install a dual-phased remediation system to correct the problem. The Board voted to issue the general permit.

OFFICE OF GEOLOGY

Surface Mining Bond Release:

Lloyd G. Spivey, Jr.
Madison       P02-014

Surface Mining Permits to Transfer:

Hill Brothers Construction Company, Inc. transfer to
Hill Brothers Leasing Company, LLC
Marshall       P99-055

Hill Brothers Construction Company, Inc. transfer to
Hill Brothers Leasing Company, LLC
Pontotoc       P01-012

Hill Brothers Construction Company, Inc. transfer to
Hill Brothers Leasing Company, LLC
Pontotoc       P01-013

The surface mining bond release and permits to transfer listed above were approved in accordance with the staff’s recommendation.

OTHER BUSINESS

The following evidentiary hearing is scheduled to take place following the Board’s regularly scheduled meeting:

November 12, 2013 – Cleveland Music Foundation, Delta State Golf Course Renovation Project, Bolivar County.

The next Permit Board meeting will be held on October 8, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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Brunini’s Curt Hebert Interviewed by National Media Concerning National Energy Policy

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Curt Hébert, a partner with the law firm of Brunini, Grantham, Grower & Hewes, PLLC, was recently interviewed and quoted in four national major media outlets concerning national energy policy.

The New York Times and National Public Radio (NPR) quoted Hébert, former chairman of the Federal Energy Regulatory Commission, in stories regarding strategy and preparedness of the country’s power grid against a possible cyber-attack.  Hébert was also one of several participants in a mid-August Washington conference on the need to better protect the electric grid from such attacks, which most experts believe are inevitable.

Hébert contributed his knowledge and insights for the 2013 Report Card for America’s Infrastructure by the American Society of Civil Engineers (ASCE) and was featured in a video summary of the report.

Additionally, Fox Business Channel’s Liz Claman interviewed Hébert on the subject of news reports that the United States Department of Justice is investigating trading in energy markets by JPMorgan Chase.

Hébert’s recent interviews and articles can be found by visiting the following websites:

New York Times – As Worries Over the Power Grid Rise, a Drill Will Simulate a Knockout Blow

NPR – The Next Disaster Scenario Power Companies Are Preparing For

Fox Business Channel video – DOJ Investigating J.P. Morgan’s Energy Business

ASCE Report Card – http://www.infrastructurereportcard.org/a/#e/energy-video-01

Hébert recently wrote and published “The Most Critical of Economic Needs (Risks): A Quick Look at Cybersecurity and the Electric Grid” for the prestigious Electricity Journal. The article centered on the need for increased focus on cybersecurity as it relates to the national electric grid.

Hébert is a visiting scholar with the Bipartisan Policy Center in Washington, D.C., where he co-chairs the Energy Reliability Task Force. He most recently served as Chief Executive Officer of Lexicon Strategy Group, an energy, finance and regulatory law advisory firm with offices in Mississippi, Louisiana and Washington, D.C.

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Kaufman and Allen Obtain Summary Judgment in Fire Death Case

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On September 4, 2013, the United States District Court for the Southern District of Mississippi granted summary judgment to CenterPoint Energy.  The order dismissed the Plaintiff’s wrongful death action which sought damages for the death of his father allegedly caused by a residential natural gas explosion. Plaintiff alleged CenterPoint was negligent in supplying gas and maintaining the gas lines around his father’s home, which resulted in the alleged gas leak and explosion.  Plaintiff further alleged his father called CenterPoint on at least two occasions in the months before the explosion to report the smell of gas and that CenterPoint failed to repair the leak.   The Court found no evidence was presented of a gas leak on CenterPoint’s side of the meter, and even assuming a leak existed on the customer’s side of the meter, Plaintiff submitted no evidence that CenterPoint was ever placed on notice of a gas leak.  Accordingly, the Court held CenterPoint could not be held liable under Mississippi law.  Opinion and Order

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Mississippi Environmental Quality Permit Board Summary of Meeting Held August 13, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board convened its regular monthly meeting at 9:00 a.m. on August 13, 2013, at the offices of the Mississippi Department of Environmental Quality in Jackson. Dennis Riecke chaired the meeting attended by all Board members. Minutes from the July meeting were approved, as were all non-controversial permits issued by the staff since the last meeting. Following a prepared agenda, items considered were as follows:

OFFICE OF GEOLOGY

Surface Mining Bond Releases:

A & A Excavating Contractor, Inc.
Madison       P88-020

A & A Excavating Contractor, Inc.
Madison       P89-001

Eutaw Construction Company, Inc.
Lee              P09-004

W.C. Pitts Construction Company, Inc.
Wayne         P92-095

W.C. Pitts Construction Company, Inc.
Wayne         P95-046

Surface Mining Permit to Cancel:

Eutaw Construction Company, Inc.
Marshall       P12-024

Surface Mining Permits to Transfer

Rogers Group, Inc. transfer to
APAC-Mississippi, Inc.
Panola         P04-021T1

Hammett Gravel Company, Inc. transfer to
Hammett and Green Aggregates, LLC
Warren        P13-006A

The surface mining bond releases, permits to transfer and permit to cancel listed above were approved in accordance with the staff’s recommendation.

OTHER BUSINESS

The following evidentiary hearings are scheduled to take place following the Board’s regularly scheduled meeting:

October 8, 2013 – Alliance Consulting, Pearl River County.

November 12, 2013 – Cleveland Music Foundation, Delta State Golf Course Renovation Project, Bolivar County.

The next Permit Board meeting will be held on September 10, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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EMPLOYER MANDATE AND REPORTING REQUIREMENTS – STILL AWAITING GUIDANCE

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On July 2, 2013, we alerted you that the employer mandate penalties and reporting requirements had been delayed until 2015.  On July 9, 2013, the IRS published Notice 2013-45. [Notice] The Notice states that guidance concerning the employer mandate delay and reporting requirements could be “expected to be published this summer.”

The Notice, in a Q&A format, outlines what the delay means.  Employer reporting obligations under §6055 and §6056 are not required until 2015.  However, the IRS “encourages” employers to report voluntarily once the guidance is issued.  The IRS hopes voluntary reporting in 2014 will provide a “real world” test run needed for a smooth 2015 transition.  It is the reports that will allow the IRS to determine whether an employee who obtained coverage in “the Marketplace” (formerly known as “the Exchange”) is entitled to a premium tax credit.

Although the employer mandate penalties have been delayed until 2015, applicable large employers should continue to use the fall of 2013 and 2014 to develop and implement their standard measurement periods to determine which employees are full-time on January 1, 2015.  On August 1, the Administration launched a new website marketed as a tool to help employers determine their insurance obligations.  [Heath Care Changes]  The site provides only the most basic information but does not assist employers with any close coverage questions.

Cheri D. Green

This Newsletter is a publication of the Health Care Department of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. The Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.  Listing of a practice area does not indicate any certification of expertise.

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Mississippi Commission on Environmental Quality Summary of Meeting Held July 23, 2013

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on July 25, at the offices of the Mississippi Department of Environmental Quality in Jackson. Chat Phillips chaired the meeting attended by a majority of the members. Minutes from the last meeting held in May 2013 were approved. Following a prepared agenda, items considered were as follows:

ELECTION OF OFFICERS FOR FISCAL YEAR 2014

The Commission voted to elect the following members as officers for FY-2014:

Chairman – Chat Phillips

Vice-Chairman – Charles Dunagin

BROWNFIELD CONSULTING FIRM

The Commission voted to approve the following firm as a Brownfield Consulting Firm:

Professional Service Industries, Inc. (PSI)
724 Central Avenue
Jefferson, Louisiana 39774

WATER POLLUTION CONTROL REVOLVING FUND LOAN PROGRAM

The MDEQ staff recommended the adoption by the Commission of the FY-2013 Intended Use Plan Amendment No. 1. This amendment includes changes to add new projects to the Planning List for possible funding, to incorporate the actual Title VI capitalization grant allotment, to account for the unavailability of the FY-2013 capitalization grant and state match for obligation, due to the lack of adequate state match authorization during the 2013 Regular Legislative Session, and to provide for the obligation of additional repayments (through March 2014) to replace the currently unavailable FY-2013 capitalization grant and state match funds. The Commission voted to approve the adoption of the amendment.

LIGNITE MINING FEES

The MDEQ staff recommended the following Lignite Mining Fees for the 2014 state fiscal year:

Liberty Fuels Company, LLC – $125,000.00 (same as for the state fiscal year 2013)

Mississippi Lignite Mining Company – $125,000.00 (same as for the state fiscal year 2013)

These amounts cover approximately 50% of the anticipated cost of administering the federally-approved coal mining program in Mississippi. The remaining approximately 50% of the cost will be covered by a federal Office of Surface Mining Reclamation and Enforcement grant. These fees will cover 100% of the anticipated cost of administering the program above the amount of the federal OSMRE grant. The Commission voted to approve the Lignite Mining Fees listed above.

REFORMATTED AND RENUMBERED REGULATIONS

The Commission regulations have been reformatted and renumbered pursuant to the Administrative Procedures Act and as required by the Secretary of State. On June 4, 2013, a public hearing was held related to the reformatted and renumbered regulations. This rulemaking does not change the content of the regulations. The Commission voted to approve and adopt the reformatted and renumbered regulations.

BRIEFING ON DENBURY WELL

The MDEQ Staff provided the Commission with a briefing on an oil spill that occurred at the Denbury Well, located in Yazoo County, on August 9, 2011. Denbury acquired the site in 2005, and the area has been a tremendous resource for the state since 1939. The oil spill occurred while Denbury was doing CO2 enhanced oil recovery. As soon as the oil spill was discovered, Denbury began emergency operations. During the emergency response, some environmental damage occurred and Denbury worked to mitigate these damages. The oil spill occurred over a period of thirty-seven (37) consecutive days. Denbury, cited by MDEQ for violating state laws related to air and water pollution, entered an Agreed Order with MDEQ in a final settlement amount of $662,500.00.

BRIEFING ON PHOENIX AWARD

On May 16, 2013, Mississippi was awarded two (2) Phoenix Awards at the National Brownfields Conference. The awards were in recognition of Mississippi’s excellence in Brownfields development.

CERTIFICATIONS APPROVED

Asbestos:                     306 certifications

Lead Paint:                  93 certifications

Underground
Storage Tanks:            2 certifications

EMERGENCY CLEAN-UP EXPENSES APPROVED

The following nine (9) emergency clean-up expenditures occurred since the last report:

United States Environmental Services in the counties of:

Hinds, Hancock, Rankin, Copiah, Franklin and Warren.

ADMINISTRATIVE ORDERS APPROVED

Thirty-four (34) administrative orders issued by the Executive Director and approved by the Commission included the following matters:

Program Area Number of Orders Penalty Range
Large Construction Storm Water

1

 $5,000
NPDES

2

 $0 to $2,000
Solid Waste

1

 $8,000
Air

5

 $1,250 to $662,500
Underground Storage Tank

1

 $0
Ready-Mix

1

 $13,550
Small Construction Storm Water

1

 $4,000
SWPPP

1

 $7,500
Other

17

 $0 to $46,800

The remaining four (4) orders were not enforcement-oriented, but rather dealt with the approval of amendments, granting of evidentiary hearings and other routine administrative matters.

The next Commission meeting is scheduled for August 22, 2013.

This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi.

This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.

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U.S. Supreme Court Narrows the Definition of “Supervisor” Under Federal Discrimination Statutes

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On June 24, 2013, the United States Supreme Court narrowed the definition of “supervisor” as it relates to racial and sexual harassment claims, thereby raising the burden of proof for employees and former employees to prove liability on the part of their employer.

Under Title VII, an employer’s liability for workplace harassment depends on the status of the alleged harasser.  If the harassing employee is the plaintiff’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 results in “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”—the employer is strictly liable (i.e., the employer is held responsible for the employee’s actions regardless of the employer’sculpability or fault).  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  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.  Faragher v. Boca Raton, 524 U. S. 775, 807 (1998); Ellerth, 524 U.S. at 765.

On June 24, 2013, the U.S. Supreme Court decided the case of Vance v. Ball State University, No. 11-556, — U.S. — (2013). The African-American plaintiff-employee asserted that another White employee—who the plaintiff-employee alleged was her supervisor—glared at the plaintiff-employee, slammed pots and pans around her and blocked her on an elevator.  The trial court held that the employer was not responsible for the White employee’s alleged actions because, although she may have directed some of her work duties, she could not take tangible, adverse employment actions against the plaintiff-employee, and was therefore not a supervisor.  The Supreme Court agreed with the lower court’s ruling.  In affirming the ruling, the Supreme Court held that for purposes of an employer’s liability for an employee’s actions under Title VII, an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court based its holding on the framework adopted in Ellerth and Faragher which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible em­ployment actions is the defining characteristic of a supervisor.

The Supreme Court’s ruling in Vance is a victory for employers.  The group of employees deemed to be supervisors is now more limited and somewhat easier to delineate.  Unless the employer has vested the individual with the power to hire, fire, promote, demote, transfer or discipline the complaining employee, the court must conduct the analysis regarding the employer’s liability under the co-worker framework for employer liability (which requires the plaintiff-employee to prove employer negligence in order to recover against the employer). An employee’s authority to take tangible actions may be proved or disproved by concrete evidence such as job descriptions and testimony as to past practices.  The Court’s adoption of this more narrow definition of “supervisor” will likely result in the issue of supervisor liability being decided more frequently at the summary judgment stage of litigation.

This Newsletter is a publication of the Labor and Employment Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

IRS Circular 230 Notice

Steve Carmody
Labor and Employment Practice Group Chair

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