SUSAN WEBBER WRIGHT, District Judge.
Defendants Tri-National Logistics, Inc.; RMR Driver Services, Inc.; Charles Kye; and Donald Lewis filed a motion for summary judgment to which plaintiff responded. The Court held a hearing on the motion on June 5, 2014. Defendants later filed a reply to plaintiff's supplemental response. For the reasons stated below, the Court finds the motion for summary judgment should be granted.
On or about August 4, 2011, RMR Driver Services, Inc. ("RMR") hired plaintiff Rebecca L. Nichols ("Nichols") as a company driver to operate vehicles owned by Tri-National Logistics Inc. ("TNI"). On August 27, 2011, while driving solo for TNI, a highway patrol officer stopped Nichols in McAllen, Texas, because her turn signals, tail lights, and other lights were not working. Upon being stopped, Nichols pulled into a drive at the front of a United States Border Patrol building. An inspection showed Nichols's truck's electrical cord or "pigtail" was not connected and her vehicle was written up for two out-of-service violations. She did not receive a ticket. Nichols admits that after she stopped for food about an hour earlier, she did not check the pig-tail connection because she had been out of the truck for only about 15-20 minutes. When Nichols was leaving the Border Patrol station, the tractor trailer got stuck in some mud. TNI had to pay $1200.00 in order to pull the truck out of the mud, during which the truck sustained damage. TNI also paid for damage done to landscaping at the Border Patrol station.
Nichols was involved in an incident on September 7, 2011, in Ontario, Canada, which resulted in damage to the trailer door. TNI determined both the McAllen and Ontario incidents were preventable, and under its policy, preventable incidents/accidents are grounds for termination if they occur within the first 60 days of employment. On September 26, 2011, TNI terminated Nichols.
Charles Kye was TNI's Vice-President of Operations. After Nichols contacted Kye a number of times, she prevailed on him to re-hire her. Nichols returned to work on October 17, 2011. As a condition of being rehired, Kye told Nichols she would have to drive team and that she would have to find a driver who would agree to drive with her. The first driver with whom Nichols teamed was Catherine Harrington. They drove together from October 17, 2011 to October 29, 2011. Ms. Harrington stopped teaming with Nichols.
From December 14-24, 2011, Nichols drove with Robert Ripke who reportedly told Donald Lewis, TRI's Filed Safety Supervisor, that Nichols was an unsafe driver. From January 20 to May 8, 2012, Nichols teamed with Lance Wehrle. On February 2, 2012, Nichols received a citation from the Georgia Department of Public Safety relating to a non-injury accident involving three vehicles. The citation was for failure to yield at the intersection of a roadway where Nichols had a stop sign and the cross traffic did not. The accident report says Nichols left the scene. She entered a plea of nolo contendre to the charge of failure to yield and paid a fine. TNI says it paid approximately $2,500.00 for property damage as a result of that accident.
After she and Wehrle had an argument, Nichols began driving with James Paris. She drove with Paris from May 8 to May 13, 2012. She said that during that period of driving together, Paris indicated he wanted to have a relationship with her. Nichols says she declined and Paris seemed okay about it. Nichols drove with Paris again from May 25, 2012 to June 1, 2012. Paris picked up Nichols at TNI's terminal in Bryant, Arkansas around midnight on the morning of May 25. Lewis says that on the evening of May 25, he spoke to Nichols at TNI's terminal in Laredo, Texas. According to Lewis, Nichols said things were fine between her and Paris. Nichols testified that sometime after she got back on the truck with Paris on May 25, 2012, he exposed himself to her in the truck. She testified he exposed himself several times.
Nichols admits that she did not call TNI to complain about Paris until he started exposing himself. She says she called Melissa Foust, Safety Administrator with TNI, several times and asked Foust for help in finding someone else with whom to drive. Ms. Foust told Nichols she would have to find a new co-driver herself. Nichols continued to team with Paris on his truck until June 1, 2012. On May 30, 2012, Paris went home to Pharr, Texas for a mandatory restart or rest period, driving the truck to his apartment. Nichols called Bob Oliver, her dispatcher, and asked him if she could take the truck while Paris was on restart and Oliver said yes. Later, Oliver called Nichols to tell her she could not take the truck because Paris's possessions were in it. That night, Nichols slept in the sleeper compartment of the truck, which was parked at Paris's apartment complex.
Nichols testified that the major incident of sexual harassment took place the next day, on May 31, 2012, while she and Paris were at his residence in Pharr during his rest period. She said Paris demanded that she sleep with him and when she refused, he verbally harangued her for several hours and twice forcibly took her truck keys and cell phone. He did not sexually assault her at his apartment. Plaintiff did not call TNI on either May 31 or June 1, 2012, about the incident.
On May 31, 2012, Paris drove Nichols to a motel where she spent the night. She did not call TNI although she did call in food orders three times. She says that after making the last call for food around 3:24 p.m., her cell phone went dead and she could not charge it because the charger was in the truck. She testified she was afraid Paris would come to the motel and break in on her. Although phone records show Nichols did not make any calls after 3:24 p.m. on the 31
Paris and Nichols left his apartment in the truck at approximately 2:08 p.m. on June 1, 2012. At approximately 6:49 p.m., Nichols got off Paris's truck at the TNI terminal in Laredo, Texas, and onto the truck of Chris Loya. After she got onto Loya's truck, she talked to Lewis about the alleged May 31st incident with Paris. Plaintiff teamed with Loya from June 1 to June 22, 2012. For a period of time while she was teaming with Loya, Nichols exchanged phone calls and text messages with Paris.
Loya testified that after about three weeks of driving with Nichols, he contacted Oliver, his dispatcher, and Lewis, to report his concerns about Nichols's driving. Lewis recommended to Kye that Nichols be terminated because she was an unsafe driver. Lewis said he considered all of the accidents/incidents in which Nichols had been involved, including those that happened before she was terminated the first time. Kye says he made the decision to terminate Nichols for safety reasons. He says he did not know that Nichols had complained about being sexually harassed at the time he terminated her on June 25, 2012.
On June 29, 2012, Foust submitted a "DAC Report" to HireRight, a system to which carriers report driver information upon termination of the driver. Carriers rely on the information as part of their background checks of potential new hires. The DAC Report stated that Nichols had an unsatisfactory safety record and that there had been excessive complaints against her. The report further stated that Nichols had been terminated during her probationary period, that she was not eligible for rehire, and that she was involved in a non-DOT recordable accident that occurred on August 27, 2011, in McAllen, Texas, when Nichols "ran off the roadway."
On June 29, 2012, Nichols submitted an intake form to the Equal Employment Opportunity Commission ("EEOC") claiming sex and age discrimination and retaliation. She did not mention sexual harassment. TNI and RMR say they were not aware of Nichols's EEOC charge until after the DAC Report was submitted to HireRight. Nichols filed a dispute of the DAC Report with HireRight and HireRight informed TNI of Nichols's dispute.
Nichols filed a complaint on January 17, 2013, in state court in Saline County, Arkansas, asserting claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, codified at 42 U.S.C. § 2000(e), and the Arkansas Civil Rights Act of 1993 (the "ACRA"), Ark. Code Ann. § 16-123-101 et seq.; intentional infliction of emotional distress; and violation of the Fair Credit Reporting Act "FCRA"), 15 U.S.C. § 1681s-2(b). On March 8, 2013, TNI, RMR, and Kye removed the case. Defendants TNI, RMR, Kye, and Lewis move for summary judgment on all counts of Nichols's complaint.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of her pleading but must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e)).
"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8
Nichols claims she was sexually harassed and then terminated in retaliation for complaining about sexual harassment. She brings her discrimination claims under both Title VII and the ACRA, and sues Lewis and Kye in their individual and official capacities.
TNI, RMR, Kye, and Lewis argue they are entitled to summary judgment on Nichols's discrimination claims under the ACRA because the harassment and retaliation about which she complains occurred outside the State of Arkansas.
The Court finds the ACRA applicable to Nichols's complaint. She is an Arkansas resident whose job site included TNI's terminal in Bryant, Arkansas. She left from that terminal on the trips with Paris, the alleged sexual harasser.
The elements of a Title VII discrimination claim and the ACRA are identical. McCullough v. Univ. of Arkansas for Med. Sciences, 559 F.3d 860, 861 (8
Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 2439 (2013) (citations omitted). "[A]n employee is a `supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim ..." Id.
In her complaint, Nichols describes Paris as her co-driver. In response to the motions for summary judgment, Nichols argues that Paris could be considered a supervisor because he was the lead driver and, according to Paris, was responsible for "decisions."
TNI and RMR argue there is no evidence that they ignored or unreasonably delayed responding to Nichols's complaints of sexual harassment. Nichols testified that the most egregious conduct of Paris happened at his apartment on May 31, 2012. TNI and RMR assert Nichols did not report that conduct until she stopped driving with Paris. They also contend there is no evidence that Nichols made any report to them about Paris exposing himself until May 31, 2012, when she and Paris got into an argument about Nichols taking the truck. Two days later, Nichols was no longer driving with Paris. Even if Paris did expose himself sometime after Nichols got back on the truck with him on May 25, TNI and RMR argue she drove with him less than a week.
They further contend Nichols cannot show that she subjectively considered Paris's behavior as creating a hostile environment prior to May 30, 2012, as she continued to drive with Paris and told Foust she wanted to stay on the truck while she looked for another driver. Lastly, TNI and RMR say they cannot be held negligent for Paris's actions of May 31, 2012, because they occurred outside of working hours at Paris's apartment.
In response, Nichols states she talked to Foust about Paris wanting to be romantically involved with her
Foust testified that Nichols called her and told her that Paris was treating her in a demeaning fashion and walking around the truck in his underwear. Foust said she told Ernie Davis, the safety director, about the conversation, and told Davis that she had recommended to Nichols that she find a female teammate.
To support her claim that TNI knew that Nichols was being sexually harassed, Nichols points to testimony from Cathy Harrington, who drove with Nichols for about two weeks. TRI/RMR initially hired Nichols in August 2011 as part of a team with Donisio Comacho, a married man who Nichols testified was her boyfriend.
The manager of TNI's terminal in Bryant, Arkansas, Jason Sypes, testified that Nichols told him Comacho was sexually harassing her but Sypes did not report it because Nichols and Comacho were no longer driving together and Nichols did not ask him to do anything more.
The Court determines that a reasonable juror could not find TNI and RMR were negligent in their response to Nichols's complaints of sexual harassment. There is no credible evidence that Nichols complained to any of the defendants about Paris's behavior until after Nichols and Paris were no longer driving together. Further, there is not sufficient evidence to establish that Nichols subjectively considered Paris's behavior prior to May 31 so severe or pervasive to alter the conditions of her employment or to create an abusive working environment.
To establish a prima facie case of retaliation, Nichols must prove: (1) she engaged in protected activity; (2) she suffered a materially adverse employment action; and (3) the materially adverse action was causally connected to her protected activity. See Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d 800, 804 (8
TNI fired Nichols three weeks after she complained about the sexual harassment by Paris. The company then filed a DAC report with HireRight documenting Nichols's driving record. She claims these actions were in retaliation for her complaints about Paris. TNI, RMR, Kye, and Lewis assert they terminated Nichols because she was an unsafe driver. They further state they were not aware that Nichols had filed an EEOC charge at the time they filed the DAC report.
Generally, more than a temporal connection is required to establish a causal connection. Tyler v. University of Arkansas Board of Trustees, 628 F.3d 980, 985 (8
After co-driving with Paris, Nichols drove Chris Loya. Loya testified that he contacted Lewis and Oliver to report his concerns with Nichols's driving. Loya complained Nichols exceeded the speed limit, was inattentive to traffic lights, and talked on her cell phone while driving. He said he had trouble sleeping while Nichols was driving because her driving made him nervous.
After Loya reported to Lewis that Nichols was an unsafe driver, Lewis recommended to Kye that Nichols be terminated because she was unsafe. Lewis said he was unaware of Nichols's claim of sexual harassment at the time he made his recommendation. Thereafter, Kye informed Lewis that he had decided to terminate Nichols and asked Lewis to tell her. On June 25, 2012, Lewis told Nichols she was terminated because of safety reports and concerns about her driving.
Nichols argues these reasons are pretextual and the real reason she was terminated is because she complained about sexual harassment. She argues the DAC reports were submitted to HireRight in retaliation for her submitting an intake form to the EEOC.
The Court finds Nichols has not presented evidence sufficient to create a genuine dispute as to whether the facts alleged give rise to retaliatory discharge. The evidence is clear that Nichols had driver safety issues. There is no credible evidence from which a reasonable juror could find that defendants' reasons were pretextual and but for the complaint of sexual harassment they would not have terminated her. Accordingly, TNI, RMR, Kye, and Lewis are entitled to summary judgment on Nichols's retaliation claims under Title VII and the ACRA.
Nichols claims that Paris's behavior was outrageous and, by extension, TNI's and RMR's failure to immediately remove her from the situation and require her to get back on the truck with Paris until she got to Laredo constitute the tort of outrage. TNI and RMR argue Nichols's claim is barred by the exclusivity clause of the Workers' Compensation Act. "Arkansas Code Annotated section 11-9-105 (repl. 2002) provides that the rights and remedies granted to employees under the Arkansas Workers' Compensation Act are exclusive of all other rights and remedies that an employee has against an employer." Guerrero v. OK Foods, Inc., 230 S.W.3d 296, 297 (Ark. App. 2006). There is an exception, however, and that is in cases "where an employer intentionally inflicts an injury upon an employee. ... This `intentional-tort exception' to the exclusive-remedy doctrine ... has been narrowly construed." Id at 298. "[O]ur supreme court recognized that the exception applies to acts `committed with an actual, specific, and deliberate intent on the part of the employer to injure the employee,' and that the employee's complaint must be `based upon allegations of an intentional or deliberate act by the employer with a desire to bring about the consequences of the act.'" Id. See also Angle v. Alexander, 945 S.W.2d 933, 935 (Ark. 1997)("before an employee is free to bring a tort action for damages against an employer, the facts must show the employer had a `desire' to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the employee")(citations omitted).
There is no evidence from which a reasonable juror could find that TNI or RMR deliberately or intentionally acted with a desire to bring about actions that would harm Nichols.
Nichols complains about the information TRI and RMR entered on the DAC reports they submitted to HireRight after Nichols's termination in September 2011 and after her termination in June 2012. On September 30, 2011, Foust submitted a DAC report that said Nichols was terminated during her probationary period, was not eligible for rehire, and that she was involved in a non-DOT recordable preventable accident/incident that happened in McAllen, Texas, when she ran off the roadway. TRI rehired Nichols on October 17, 2011, and then terminated her on June 25, 2012. On June 29, 2012, Foust submitted another DAC report which noted Nichols had excessive complaints and an unsatisfactory safety record and had a non-DOT recordable accident in West Point, Georgia. Nichols filed a dispute of the DAC with HireRight, and HireRight informed TRI of the dispute. Ms. Laura Bailey, TNI's Safety Administrator, said she investigated the reports and realized that the accident which occurred in Ontario, Canada, had not been included on the initial September 2011 DAC report so she submitted a revised report that included the incident. She also corrected the entry that said Nichols was not eligible for rehire to "rehire upon review."
In bringing claims under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., Nichols alleges TRI and RMR violated the Act "by failing to adopt, maintain, and follow reasonable procedures in the preparation of consumer credit reports which led to the distribution of erroneous, incomplete or otherwise inaccurate information that in turn caused employers to reject Ms. Nichols' applications for hire." Compl. at ¶ 123. She also alleges defendants knew or should have known that "classifying entries on Ms. Nichols' safety record as `Accidents' rather than "Incidents' was incorrect." Compl. at ¶ 125. The parties dispute whether Nichols can state a claim under the FCRA.
Ilodianya v. Capital One Bank USA NA, 853 F.Supp.2d 772, 773-774 (E.D.Ark.,2012).
Nichols's allegations are directed to the accuracy of the information entered on the DAC reports. She makes no complaint that TNI failed to adequately respond to her dispute of the initial reports and her allegations relate to information contained in the DAC reports initially submitted by TNI to HireRight. There is no private cause of action for improperly furnishing information to a credit reporting agency, and subsection (d) of §1681s-2 specifically provides that the provisions of subsection (a) "shall be enforced exclusively as provided under section 1681s of this title by the Federal agencies and officials and the State officials identified" in that section.
Because Nichols has no private cause of action under subsection (a) and fails to demonstrate a genuine issue of material fact as to TNI's response to her dispute, the Court finds TNI and RMR are entitled to summary judgment on Nichols's FCRA claim.
For the reasons stated above, the Court grants the motion for summary judgment [ECF No. 80]. Nichols's claims against TNI, RMR, Kye, and Lewis are dismissed. The motion to strike [ECF No. 128] is denied as moot.
