Leonard Patrick v. Werner Enterprises
Filing
NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, KRAUSE and FUENTES, Circuit Judges. Total Pages: 6.
Case: 18-1364
Document: 003113007277
Page: 1
Date Filed: 08/13/2018
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1364
___________
LEONARD PATRICK,
Appellant
v.
WERNER ENTERPRISES
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-15-cv-00108)
District Judge: Honorable Yvette Kane
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 9, 2018
Before: SHWARTZ, KRAUSE and FUENTES, Circuit Judges
(Opinion filed: August 13, 2018)
___________
OPINION*
___________
PER CURIAM
Leonard Patrick appeals from the judgement of the District Court. We will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Case: 18-1364
Document: 003113007277
Page: 2
Date Filed: 08/13/2018
In March 2016, Patrick filed an amended complaint in the United States District
Court for the Middle District of Pennsylvania against Werner Enterprises (“Werner”),
asserting claims for same-sex harassment and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Patrick alleges that while he was
employed as a truck driver with Werner, he was sexually harassed on the basis of his
gender by his driving trainer, David Tompkins. Specifically, Patrick claims that
Tompkins told him on one occasion that his lisp made him sound gay, showed him nude
photos of women on his phone, and sexually assaulted him. Regarding the sexual assault,
Patrick contends that on June 1, 2013, while he and Tompkins were nearing the end of
their route, Tompkins insisted on making a stop to wash his clothes. While Tompkins
laundered his clothing at a truck stop, Patrick went to the sleeping quarters in the vehicle
and attempted to sleep. Shortly thereafter, Tompkins entered the truck, woke up Patrick,
and asked him to move from the lower bunk to the upper bunk. Patrick claims that he
refused to move, and Tompkins then removed his clothing and climbed into the bunk
where Patrick was lying and rubbed his body against him. Patrick pushed Tompkins
away and immediately contacted a Werner dispatcher to report the incident. Patrick
claims that he told the dispatcher that he would not return to the truck and ride with
Tompkins. He took a cab to a nearby train station and traveled home.
Subsequently, Patrick spoke with a safety specialist from Werner and prepared a
statement about the incident, followed by a conference call with several of Werner’s
supervisory and human resources personnel. Patrick claims that after he reported
2
Case: 18-1364
Document: 003113007277
Page: 3
Date Filed: 08/13/2018
Tompkins’ conduct, he received lower paying, less desirable jobs, and was removed from
a driving assignment purportedly due to a reduction in force. Patrick alleges that he was
then terminated and told to return his truck and keys.
Werner filed an answer to Patrick’s amended complaint, and the parties engaged
in discovery. In July 2017, Patrick filed a “Memorandum,” which consisted primarily of
a list of exhibits along with the accompanying documents. Because there was no motion
pending, the District Court ordered the documents stricken from the record, but noted that
Patrick could file another memorandum and exhibits at the appropriate time – either in
opposition to a motion filed by Werner or in support of his own motion. The District
Court denied Patrick’s subsequent motion for reconsideration.
In August 2017, Werner filed a motion for summary judgment, arguing that it was
not a proper defendant because it was not Patrick’s employer, and that Patrick had failed
to set forth prima facie claims of sexual harassment and retaliation. The Magistrate
Judge ordered Patrick to file, on or before September 5, 2017, a brief in opposition to
Werner’s motion,1 which Patrick failed to do. In December 2017, the Magistrate Judge
recommended that the motion be granted as the undisputed facts showed that Werner was
not Patrick’s employer and that Patrick was not subjected to sexual harassment or
retaliation after he complained of Tompkins’ conduct. Patrick did not file any objections
The Magistrate Judge noted that unlike his previous “Memorandum,” Patrick’s brief
should “respond to the arguments raised in [Werner’s] brief in support . . . [and] cite to
record evidence supporting any denial of [Werner’s] statements of material fact.” See
Dist. Ct. Dkt. 98 at 2. The Magistrate Judge warned that if Patrick failed to deny a
material fact set forth in Werner’s statement of material facts or failed to cite to record
evidence to support a denial of a material fact, the fact would be deemed admitted.
1
3
Case: 18-1364
Document: 003113007277
Page: 4
Date Filed: 08/13/2018
to the Magistrate Judge’s report and, on February 16, 2018, the District Court adopted the
Magistrate Judge’s recommendations. Patrick appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the District Court’s decision granting summary judgment. See
McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
To establish a prima facie Title VII claim, a plaintiff “must allege an employment
relationship with the defendant[].” Covington v. Int’l Ass’n of Approve Basketball
Officials, 710 F.3d 114, 119 (3d Cir. 2013). A parent corporation will be held
responsible as an employer under Title VII only where it and the subsidiary are “so
interrelated and integrated in their activities, labor relations and management” that we
should pierce the corporate veil. Marzano v. Computer Sci. Corp., 91 F.3d 497, 514 (3d
Cir. 1996) (citation omitted). The relationship between the parent and the subsidiary
must be one where the subsidiary is the “mere instrumentality of the parent corporation.”
Id. at 513. Here, the undisputed record shows that Patrick was hired on April 3, 2013, by
Drivers Management, LLC (“DM”). While DM is a wholly owned subsidiary of GraGar, LLC, which is a wholly owned subsidiary of Werner, DM alone paid Patrick’s
wages and provided his paychecks. Patrick does not dispute that Werner is not a proper
defendant, nor does he claim that Werner and DM shared common management,
ownership, or financial management. Because Patrick failed to set forth facts showing
4
Case: 18-1364
Document: 003113007277
Page: 5
Date Filed: 08/13/2018
that there is a genuine issue for trial regarding Werner’s status as his employer, the
District Court properly granted summary judgment in favor of Werner.
In his appellate brief, Patrick essentially makes two arguments in support of his
appeal, but neither one has any bearing on the dispositive question whether Werner was
his employer. First, he claims that he was not provided certain discovery regarding the
existence of a “Student Driver Manager (“SDM”)/Dispatch Operator,” to whom he
complained about the alleged incident. This claim is meritless as Werner has identified
only one SDM/Dispatch Operator involved in the incident, Cory Morris, whose name
Werner provided to Patrick. Moreover, by Order dated July 7, 2017, the District Court
found the Werner had produced all relevant discovery for the case. Second, Patrick
claims that he was precluded by the District Court from producing a response to Werner’s
summary judgment motion. This claim is equally unpersuasive as the Magistrate Judge,
mindful of Patrick’s pro se status, explicitly instructed him as to when to respond to
Werner’s motion, the manner in which he was required to respond, and the consequences
for failing to do so. Despite this clear instruction, Patrick failed to respond to Werner’s
summary judgment motion or later object to the Magistrate Judge’s report and
recommendation.
Patrick does not appear to address the merits of his sexual harassment and
retaliation claims in his appellate brief, but states simply that Werner’s “witness gave
false statement.”2 Nevertheless, we agree with the District Court that even if Werner
In his reply brief, Patrick asserts only that “there was an issue between Trainer and
Plaintiff.” He also claims for the first time that “he was given unfair loads and miles.”
2
5
Case: 18-1364
Document: 003113007277
Page: 6
Date Filed: 08/13/2018
were a proper defendant, Patrick has failed to state prima facie claims of sexual
harassment and retaliation.3
For the foregoing reasons, we will affirm the District Court’s judgment.
We need address only arguments that Patrick raised in his opening brief. See United
States v. Jackson, 849 F.3d 540, 555 n.13 (3d Cir. 2017).
3
Although it is unclear, Patrick also appeared to claim that he was subject to a hostile
work environment based on sexual harassment. The District Court did not address this
claim, but it must fail because he cannot establish that he was discriminated against
because of his sex. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.
2013). Nor has he demonstrated that the three minor discrete incidents that he was
exposed to were severe or pervasive. See Andrews v. City of Phila., 895 F.2d 1469, 1484
(3d Cir. 1990) (holding that “harassment is pervasive when ‘incidents of harassment
occur either in concert or with regularity’”) (citation omitted); see also Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.”) (citation and quotation marks omitted).
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?