By Lorene D. Park, J.D. Reviving a female truck driver’s sexual harassment claim, a divided Eighth Circuit panel held that a district court failed to consider all that occurred during a mandatory 34-hour rest period during which her driving partner allegedly exposed himself to her, offered to forgive a debt in exchange for sex, and became aggressive when she refused. The dispatcher to whom she complained told her to try to get along with the male driver and, rather than taking prompt remedial action, the company essentially stranded the employee, not arranging for another driver to pick her up until seven days after her initial report. But summary judgment was affirmed against her retaliation claim because the unsafe driving that formed the basis for her discharge had been a concern long before the alleged harassment (Nichols v. Tri-National Logistics, Inc., January 4, 2016, Murphy, D.). Less than two months after the employee was hired in August 2011 as a truck driver, she was fired for getting her truck stuck in the mud and damaging the trailer door. She was rehired in October but told that she could no longer drive alone. Her first three partners consecutively refused to continue driving with her, reporting that she took her eyes off the road to use a cell phone; ran a stop sign, causing an accident; and otherwise engaged in unsafe driving practices. Alleged sexual harassment. The employee then partnered with a male driver who allegedly asked if she was interested in a romantic relationship; exposed himself while she was driving; and often leaned over her in his underwear. She complained on May 25, 2012, and the dispatcher told her to try to “endure it” until the latest trip was over. After their May 30 delivery, they traveled to the male driver’s home in Pharr, Texas, for a mandatory 34-hour rest period. The employee’s request to take the truck to a place where she could stay overnight separately was denied. She complained to the dispatcher: “I can’t believe your telling me that. Didn’t I just tell you maybe an hour ago that the man was trying to control me to no hilt and I couldn’t get away from him?” He told her to try to “get along with him until you guys get back out on the road” and offered to pay half the cost of a motel room. The employee slept in the truck but on May 31 asked the male driver to take her to a motel. He then offered to forgive an $800 debt she owed him if she would sleep with him. She refused and he became “excessively mad,” degraded her, and twice forcibly took away her keys and cell phone. She again reported his conduct. Termination. From June 1 to 22, the employee drove with yet another driver, who reported that she drove over the speed limit, kept her tractor brakes on, ran at least one red light, and talked on her cell phone while driving. The field safety supervisor recommended that she be fired and the VP of operations terminated her on June 25. Lawsuit. The employee sued the employer, the alleged harasser, the supervisor, and the VP, alleging sexual harassment under Title VII and the Arkansas Civil Rights Act. She also claimed that the employer, supervisor, and VP retaliated against her for complaining of harassment. The alleged harasser counterclaimed that she failed to repay over $1000 that she owed him. The district court granted summary judgment for the defendants on the federal claims and declined to exercise supplemental jurisdiction over the state law claims. Sexual harassment. Reversing in part, the Eighth Circuit found that the district court erred when analyzing the employee’s sexual harassment claim by not considering all that had occurred during the 34-hour rest period in Pharr. Her time there was part of her work trip, and the truck was the only form of transportation available. The dispatcher said he would only find her another driving partner after that trip and told her that she could not use the truck to drive to a motel. The lower court also erred in treating the employee’s decision to remain with the truck as her own choice. The law does not require an employee to “quit or want to quit,” explained the appeals court, and the proper test was whether she perceived her environment as offensive. She testified that the male driver’s actions were offensive; she complained five times during the trip; and a psychiatrist testified that the employee felt sexually harassed and suffered depression and post-traumatic stress due to the male driver’s conduct. That raised a triable issue of fact. Moreover, the lower court erred in finding that she did not report the harassment until June 1. She had previously complained to a safety department employee, which showed that sufficient information came to the attention of someone with the power to end the harassment and consequently to show the employer had knowledge of the harassment. Viewed in a light most favorable to the employee, the evidence indicated that her initial report was May 25. There were also triable questions on whether the employer failed to take prompt remedial action. It did not quickly remove the employee from the truck, investigate her claim, or reprimand the male driver. Instead, it allowed her to travel to Pharr with him, stranded her there, and didn’t arrange for another driver to pick her up until seven days after her initial report. Retaliation. Summary judgment was affirmed on the retaliation claim because the evidence showed the employer was concerned about the employee’s unsafe driving well before she complained of sexual harassment, undercutting the temporal proximity to her discharge. Dissent. Judge Smith dissented, finding that the record did not demonstrate that the employer acted negligently in addressing the employee’s complaints, that the majority’s timeline for when the employee first complained was not supported by the record, and that the employer did not delay unreasonably in taking remedial action.
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