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By Patrick Dorrian
Jan. 4 — A female truck driver who claims she was sexually harassed by a male driver during a multiday trip can pursue claims against her former employers under federal and state anti-discrimination laws, a divided U.S. Court of Appeals for the Eighth Circuit ruled Jan. 4.
The appeals court found 2-1 that a lower court failed to consider all of the events that allegedly occurred between Rebecca Nichols and James Paris during a mandatory 34-hour rest period after they made a delivery in Laredo, Texas.
According to Nichols, during the break she was required by Tri-National Logistics Inc. (TNI) and RMR Driver Services Inc. to drive three hours with Paris to his home in Pharr, Texas. At the residence, he made an unwelcome advance by offering to forget about the $800 Nichols owed him if she would have sex with him, she said. That offer followed incidents in which Paris had fully and partially exposed himself to Nichols in their truck before they reached Laredo. When Nichols declined the offer, Paris became “excessively mad” and twice “forcibly took away” her keys to the truck and her mobile phone, Nichols alleges.
The ruling should serve as a reminder to employers—especially those with employees such as over-the-road drivers who work in confined spaces and may be required to spend time together off the clock—that actionable workplace harassment can occur off premises and during non-business hours. Employers should train their workforces accordingly.
Writing for the appeals court majority, Judge Diana E. Murphy said a jury could find that Nichols “subjectively perceived” Paris's behavior to be offensive and that TNI and RMR didn't act quickly enough to end the harassment once Nichols reported it.
The decision revives Nichols's sexual harassment claims against the companies under Title VII of the 1964 Civil Rights Act and the Arkansas Civil Rights Act.
Because the district court erred in granting summary judgment against Nichols on her sexual harassment claims, judgment against her on her intentional infliction of emotional distress claim against Paris individually also is reversed, Murphy said. The district court must determine on remand whether that claim is “so related to” the Title VII and ACRA claims that it is “part of the same case or controversy” and must be reinstated.
Judge Michael J. Melloy joined the majority opinion.
Judge Lavenski R. Smith dissented. He took issue with the majority's determinations that Nichols first complained about Paris on May 25, 2012, and that the companies took seven days to respond.
Nichols's initial complaint couldn't have been made earlier than May 28, he said, and Nichols was assigned a new co-driver June 1. Moreover, when she first reported the harassment, Nichols said she wanted to stay paired with Paris until she could find another co-driver because she needed the money.
As a result, she didn't show that TNI and RMR acted negligently in responding to her complaints, Smith said.
According to the companies, Nichols was fired because of recurring safety issues, including speeding, keeping her tractor brakes on, running at least one red light and talking on her hand-held mobile phone while driving.
Those issues were reported by the driver with whom Nichols was paired after Paris, and three other drivers had stopped working with Nichols before she drove with Paris because they believed she was unsafe. In addition, Nichols's prior stint with TNI had ended when she was involved in two preventable driving accidents, the court said.
But Nichols claims that Paris once exposed himself while she was driving and that on three or four other occasions he stood in the back of the cab while she was in the driver seat and leaned over her in his underwear with his hands on the overhead compartment. On at least one of those occasions, his genitals were visible through a hole in his underwear, according to Nichols.
The subsequent alleged harassment at Paris's home was part of the overall scenario for Nichols, as the “time in Pharr was part of her work trip because she stopped there during a mandatory rest period,” Murphy said. The circuit has previously ruled that offensive conduct doesn't necessarily have to occur in the workplace or during business hours to support Title VII liability, Murphy noted.
None of the cases relied on by the dissent “involved a workplace at all like the confined environment of an over the road truck cab in which Nichols was isolated for a multi day trip,” Murphy said.
Nichols's Title VII and ACRA retaliation claims failed because the evidence showed the employers were concerned about her unsafe driving “well before she complained about sexual harassment,” the appeals court ruled, affirming summary judgment against her on those claims.
Law Offices of David Hodges represented Nichols. Danna McKitrick P.C., Dover & Dixon and Baxter & Jewell represented the defendants.
To contact the reporter on this story: Patrick Dorrian in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
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