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Labor Logic


John D. Finerty, Jr.

In the Seventh Circuit, a “supervisor” in the workplace is someone “with the power to directly affect the terms and conditions” of another’s employment. See Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 506 (7th Cir. 2004). A concurring opinion in Rhodes, however, suggested that the Seventh Circuit should “reexamine the criteria” for identifying supervisors. Rhodes, 359 F.3d at 510. The case of Higbee v. Sentry Ins. Co., Case No. 04-1502 (Mar. 3, 2006), appeared to present such an opportunity.


Rosemary Higbee sued Sentry Insurance for sexual harassment and age discrimination. The case began in 1997 when she filed a summons and complaint in the U.S. District Court for the Northern District of Illinois. She alleged other employees created a hostile work environment.

The issue of who was a supervisor, therefore, was a threshold issue in Higbee’s sexual discrimination claim. The district court, relying on Rhodes and other cases, instructed the jury that a supervisor was one who: “had the authority to directly affect the terms and conditions of [Higbee’s] employment.”

That definition differs from the Second Circuit’s definition of supervisor that requires only that someone have authority from the employer to materially change a subordinate’s terms and conditions of employment and, thereby, create a hostile work environment. See Mack v. Otis Elevator Co., 326 F.3d 116, 126-27 (2d Cir. 2003). Importantly, Higbee did not object to the jury instruction in her case.

The jury found for Sentry Insurance on both of Higbee’s claims. Higbee filed post-trial motions, but did not challenge the jury instruction that defined a “supervisor.”

Instead, she argued to the district court that the jury’s finding — that Higbee’s alleged harasser was not her supervisor — was against the manifest weight of the evidence. The district court denied her motions; Higbee appealed and raised the narrow issue of the appropriate definition of “supervisor” for purposes of Title VII.


As an initial matter, the Seventh Circuit held Higbee had forfeited the right to make the argument because she did not object to the jury instruction and filed no post-trial motions alleging error in the instructions. As a result, the court wrote that the issue of how to define a “supervisor” in the Seventh Circuit under Title VII would have to wait for another day and another case.

The New Rule 51(d)(2)

Waiver notwithstanding, the federal rules allow for a plain error review of jury instructions in civil cases as of Dec. 1, 2003. According to Rule 51(d)(2), a “court may consider a plain error in the instructions affecting substantial rights that have not been preserved.” In searching for plain error, review is limited and discretionary.

The standard requires that there be: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. There was no plain error in Higbee’s case, however.

The district court applied clear Seventh Circuit precedent to define a “supervisor” under Title VII. Thus, there was no error, much less plain error. This could not be the basis to overturn a jury verdict, the court wrote, or changing the law, because Higbee seemed satisfied with the law until she lost.

For more information on this case or assistance in defending a Title VII claim, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on the Internet at jdfinerty@michaelbest.com.

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