In the first-published federal court of appeals EEO decision of 2016, the Eighth Circuit (in a 2-1 decision) reverses summary judgment in a sex harassment case. The plaintiff – a woman truck driver – was forced to share close quarters with a male co-worker for a week-long trip. The panel majority holds that a jury could find that the employer could have taken greater steps to prevent the harassment.
Nichols v. Tri-National Logistics, Inc., No. 15-1153 (8th Cir. Jan. 4, 2016): plaintiff Nichols was paired with a male driver named Paris. “According to her deposition testimony, Paris opened the cab’s curtain and exposed himself while Nichols was driving. Upset, she told him to get dressed and ‘not to behave that way.’ According to Nichols, she immediately reported this incident to [Ms.] Foust in TNI’s [‘Tri-National Logistics’] safety department.”
On at least five other occasions over a six-day period, Nichols testified that Paris had “lean[ed] over her in his underwear with his hands on the overhead compartment,” at least once with his genitals exposed. Although There was a dispute about the precise timing of plaintiff’s complaints, a TNI dispatcher named Oliver supposedly “told Nichols to try to ‘endure it’ until the trip was complete, at which point he would help find her an other partner.”
On the return trip, at a mandatory 34-hour stop in Pharr, Texas, the plaintiff was reportedly denied a request “to take the truck to a place where she could stay overnight … because Paris had personal possessions in the cab.” On night-two, when “Nichols asked Paris to take her to a motel on May 31, he asked her to sleep with him.” When she refused, “Paris became ‘excessively mad,’ verbally degraded her, and twice forcibly took away her keys and cell phone.” The company then allowed Nichols to join a different driver, named Loya, for the balance of the trip home.
Nichols was then assigned to Loyas partner. But after plaintiff was cited for various safety violations (Loya “reported to TNI that she had driven over the speed limit, kept her tractor brakes on, failed to anticipate traffic light changes, run through at least one red light, and talked on her handheld cell phone while driving”), the company terminated her roughly three weeks later.
The panel majority holds that a jury should decide whether Nichols could prove her sex harassment claim. It holds that the district court ignored “Nichols’ time in Pharr” despite that it was “part of her work trip because she stopped There during a mandatory rest period, and Oliver told her he would only find her a driver after it was completed.” While the district court held that Nichols’ decision to stay with the truck during the break was voluntary, “the law does not require an employee to ‘quit or want to quit’ when faced with a Hobson’s choice.”
The panel majority also holds that There was a genuine dispute whether Nichols was subjectively offended by Paris’s conduct. “Nichols testified at her deposition that after he exposed himself, she was upset, told him not to behave that way, and complained immediately to TNI. Nichols also testified that she complained to … Foust about Paris five times throughout the trip and reported to Oliver on June 1 that she felt abused, degraded, and scared.”
The panel majority, addition ally, concludes that There was a genuine dispute about when Nichols first reported Paris’s alleged harassment. And There was a genuine dispute about whether, once informed of the behavior, the company acted reasonably in requiring Nichols to remain with Paris in close-quarters for days afterwards:
“TNI could have ordered Nichols to leave Paris’ truck as soon as it learned about the problem and promptly help her find an other driving partner, reprimanded Paris for his behavior, or arranged lodging for her in Laredo instead of permitting her to accompany him to Pharr on May 30. Instead, TNI allegedly took no action to remove her despite her consistent complaints of sexual harassment, but allowed her to go to Paris’ apartment in Pharr, and stranded her There with no available alternate form of transportation.”
While reversing summary judgment on the harassment claim, though, the panel affirmed summary judgment on Nichols’ retaliatory discharge claim, holding “that “There is sufficient evidence that TNI was concerned about Nichols’ unsafe driving well before she complained about sexual harassment.”
Dissenting, Judge Smith would have affirmed summary judgment on the sex harassment claim, on the ground that the employer as a matter of law took prompt corrective action: “To be sure, no one should have to endure harassing conduct for any period, but employers can only be legally responsible for conduct of which they are made aware and fail to take timely, reasonable steps to correct. The time period between May 28 and June 1 is the very type of delay employees must unfortunately sometimes endure. Considering current precedent, where a two-month delay presented a ‘close question,’ I submit that the four-day delay here was not unreasonable.”