Cook v. Triple Transport Inc

Filing 23

ORDER denying 11 Motion for Summary Judgment; denying 18 Motion to Strike 17 Response to Motion. Signed by Judge Kristine G. Baker on 3/1/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DISTRICT
PATRICIA COOK
v.

PLAINTIFF
Case No. 4:12-cv-00249-KGB

TRIPLE TRANSPORT, INC.

DEFENDANT
OPINION AND ORDER

Plaintiff Patricia Cook brings this action against defendant Triple Transport, Inc. (“Triple
Transport”) under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of
1991. Triple Transport moves for summary judgment (Dkt. No. 11). Ms. Cook has responded
(Dkt. No. 17), and Triple Transport has replied (Dkt. No. 21). Triple Transport also moves to
strike as untimely Ms. Cook’s response to the motion for summary judgment (Dkt. No. 18). Ms.
Cook has responded (Dkt. No. 20), and Triple Transport has replied (Dkt. No. 22). For the
following reasons, Triple Transport’s motion to strike and motion for summary judgment are
denied.
MOTION TO STRIKE
The Court will address first Triple Transport’s motion to strike Ms. Cook’s response to
the motion for summary judgment (Dkt. No. 18). Triple Transport contends that Ms. Cook’s
response was untimely filed and, therefore, the Court should refuse to accept the filings and
strike from the record all filings in support of the response. Triple Transport acknowledges that
Ms. Cook’s response was filed “three days after the time it was due” (Dkt. No. 19, at 3). Triple
Transport also acknowledges that Ms. Cook may make an affirmative showing of excusable
neglect regarding her untimely filing, citing Huggins v. Fed Ex Ground Package Sys., 592 F.3d
853, 856 (8th Cir. 2010) (Dkt. No. 19, at 3).

In response to the motion to strike, Ms. Cook states that her counsel mistakenly
calculated the due date for filing the response by referring to the Federal Rules of Civil
Procedure, without consulting the Local Rules of the Court regarding the reduction of time for
responding to a motion for summary judgment (Dkt. No. 20, at 1).
For the purposes of Rule 60(b)(1) of the Federal Rules of Civil Procedure, “[e]xcusable
neglect means good faith and some reasonable basis for noncompliance with the rules.” United
States v. Puig, 419 F.3d 700, 702 (8th Cir. 2005) (quoting Ivy v. Kimbrough, 115 F.3d 550, 552
(8th Cir. 1997)). The Eighth Circuit has described excusable neglect as “an elastic concept that
empowers courts to provide relief where a party’s failure to meet a deadline is caused by
inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the
party’s control.” Kurka v. Iowa Cnty., 628 F.3d 953, 959 (8th Cir. 2010) (internal quotation
marks omitted) (quoting Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010)
(reviewing excusable neglect under Fed. R. Civ. P. 6)). “The determination of whether neglect is
excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding
the party’s omission.” Id.
In determining whether excusable neglect exists, the Eighth Circuit has looked to the
following “particularly important” factors: “(1) the possibility of prejudice to the defendant, (2)
the length of delay and the potential impact on judicial proceedings, (3) the reason for the delay,
including whether the delay was within the party’s reasonable control, and (4) whether the party
acted in good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496
F.3d 863, 866 (8th Cir. 2007)).

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Applying the Kurka factors here, the Court finds excusable neglect. The delay was three
days. Ms. Cook’s counsel has provided a reasonable explanation for the delay, and there has
been no showing of a lack of good faith on the part of Ms. Cook. There also has been no
showing of prejudice. The Court will consider Ms. Cook’s response and deny Triple Transport’s
motion to strike (Dkt. No. 18).
MOTION FOR SUMMARY JUDGMENT
Ms. Cook is a truck driver who has worked in the industry for some time. She applied for
a position with Triple Transport but was not hired. She claims she was discriminated against on
the basis of her gender. Triple Transport moves for summary judgment on her claims.
Factual Background 1

I.

Ms. Cook worked as a truck driver for Integrity from approximately August 2009 until
August 2010. She was initially interviewed for the position at Integrity by manager George
White. Jonathan Kifer was also a manager at Integrity during Ms. Cook’s employment there.
Ms. Cook reported to Mr. Kifer and Mr. White. Mr. Kifer approved the hire of every Arkansas
driver while employed at Integrity. Mr. White did not have the authority to hire without Mr.
Kifer’s approval. Mr. Kifer approved Ms. Cook’s hire at Integrity.
Ms. Cook was involved in two truck accidents while working at Integrity. In the first
accident her trailer hit the hood of a Peterbilt tuck, and in the second accident, her truck damaged
a gate. Ms. Cook resigned from her position at Integrity because she was romantically involved
with a dispatcher, Charles Allshouse.

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The undisputed facts are taken from Triple’s Statement of Undisputed Facts (Dkt.
No. 13) and plaintiff’s Response to Statement of Undisputed Facts (Dkt. No. 15), unless
otherwise noted by specific citation.
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On May 24, 2011, Ms. Cook applied for a position at Triple Transport’s Quitman
location.

At that time, she was employed as a driver for JEG.

Ms. Cook submitted her

application to Randy Thomas, a yard manager for Triple Transport at the Quitman location. Mr.
Thomas reported to Mr. Kifer, the same Mr. Kifer with whom Ms. Cook worked at Integrity.
Mr. Kifer told Mr. Thomas to put Ms. Cook’s application on his desk and that he would review it
when he returned.
During a discussion regarding Ms. Cook’s application, Mr. Thomas suggested to Mr.
Kifer that her performance at Integrity would be a concern because she was engaged in a
romantic relationship with her supervisor and that conduct could cause disruption in the work
place. Triple Transport claims in its motion for summary judgment that Mr. Kifer told Mr.
Thomas Ms. Cook’s personal conduct at Integrity should not be considered. Ms. Cook contends
that Mr. Thomas advised her that she would start the day she took her drug test and that he would
fax her application to the lady in Judsonia (Dkt. No. 11-2, at 4-5). That same week, Ms. Cook
called Mr. Thomas regarding her application, and he informed her that Mr. Kifer wanted to speak
with her.
On May 26 or 27, 2011, Mr. Kifer spoke on the phone with Ms. Cook. He informed her
that all applications must be processed by Human Resources in Judsonia, Arkansas, and that the
woman who processed the applications was on vacation. Ms. Cook continued to text Mr. Kifer
about the driver position 21 times, sometimes hourly. Although Ms. Cook was shown text
messages during her deposition, she contends that there are some missing texts; she does not
think the texts “read right” (Dkt. No. 11-2, at 8). Mr. Kifer talked on the phone with Ms. Cook
twice between May 23, 2011 and June 6, 2011.

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Elizabeth Peckham, who worked in Human Resources/Safety for Triple Transport,
provides administrative support for the driver hiring process, including running motor vehicle
record checks, coordinating candidate drug tests, and verifying employment records.

Ms.

Peckham was on vacation from May 30, 2011 to June 6, 2011. On the morning of June 7, 2011,
Ms. Cook called Ms. Peckham to ask about the processing of her application. The parties
dispute the nature of the call. Ms. Peckham believes Ms. Cook “angrily demanded” to know
why she had not processed her application. Ms. Peckham claims she attempted to explain that
she had just returned from vacation. She contends Ms. Cook proceeded repeatedly to demand to
know why Ms. Peckham had not “run [her] stuff.” Ms. Peckham contends she was upset by Ms.
Cook’s phone call and reported it to Mr. Rodney Krug. The record is not clear as to Mr. Krug’s
position with Triple Transport, but it does establish that he was in management and raises at least
a disputed issue of material fact as to his involvement in the consideration of Ms. Cook’s job
application. Mr. Krug testified that he believed that Ms. Cook’s behavior was “belligerent” and
that Ms. Cook “became all unglued on Elizabeth.” Mr. Krug also claims that no other applicant
had spoken to Ms. Peckham in this manner, although Ms. Cook disputes this claim.
Ms. Cook also disputes that she spoke to Ms. Peckham in the manner Triple Transport
claims. She denies raising her voice with Ms. Peckham (Dkt. No. 11-2, at 22). She also disputes
the substance of the call. Ms. Cook alleges that Ms. Peckham did not have her application and
that she told Ms. Cook she only received the applications of drivers Triple Transport intended to
hire (Dkt.No. 17-1, at 20). Ms. Cook claims she made a comment about Triple Transport not
hiring women drivers, and Ms. Peckham said in response that maybe the policy had changed
(Dkt. No. 17-1, at 20). According to Ms. Cook, Ms. Peckham advised Ms. Cook to contact Mr.
Kifer or Mr. Thomas.

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Triple Transport maintains that, following this phone call, Mr. Kifer and Mr. Krug
discussed Ms. Cook’s alleged outburst during her call with Ms. Peckham. According to Triple
Transport in its moving papers, Triple Transport decided not to hire Ms. Cook based on her
behavior during that call. Triple Transport now claims that Mr. Kifer knew that Ms. Cook had
caused two wrecks at Integrity, but he continued to believe she was a good hire until she upset
Ms. Peckham during the hiring process. Mr. Krug believed that Ms. Cook’s behavior during the
application process was an indication of how she would behave as an employee, and her conduct
was not acceptable, according to Triple Transport.
Ms. Cook was the only female driver at Future Energies, Marable, and Lindsey Hauling
and was the only female driver for most of her employment at JEG, Paladino, and Night Hawk.
Mr. Thomas was fired from Triple Transport for submitting false meal receipts. Mr.
Thomas provided to Ms. Cook an affidavit which states:
I worked as yard manager at the Quitman location of Triple Transport, Inc., for
approximately six months in 2011.
On or about May 24, 2011, Patricia Cook spoke with me about working as a truck
driver at Triple Transport and filled out an application. I gave her application to
Jonathan Kifer, the general manager of Triple Transport.
At the next manager meeting, Mr. Kifer, Mr. Rod Krug and I discussed Ms.
Cook’s application. Mr. Kifer attempted to talk Mr. Krug into hiring Ms. Cook as
he had worked with her previously at Integrity. I also worked with Mr. Kifer and
Ms. Cook at Integrity. Mr. Krug stated that he would not “hire women or n----s.”
Ms. Cook attempted to contact Mr. Kifer and me over the next couple of weeks to
inquire about her application. Mr. Kifer did not respond and I didn’t know what
to tell her so I just told her she had to talk to Jonathan.
Triple Transport submitted this affidavit with its motion for summary judgment (Dkt. No. 11-9).
Triple Transport repeatedly takes the position in its moving papers that the “affidavit does not
state when this alleged statement occurred.” Mr. Krug admits that, at some point in time, he may

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have made a comment out of anger that is similar to the comment quoted by Mr. Thomas, but he
claims the comment was probably made “a long time ago” and was not made in connection to
Ms. Cook’s application or the decision not to hire her.
II.

Standard of Review

Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). However, parties opposing a summary judgment motion may not rest merely
upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
The initial burden is on the moving party to demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to
establish there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121
F.3d 364, 366 (8th Cir. 1997). A factual dispute is genuine if the evidence could cause a
reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th
Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary
judgment; rather, the dispute must be outcome determinative under prevailing law.” Celotex,
477 U.S. at 331.
III.

Analysis

Ms. Cook can establish a prima facie claim of gender discrimination either by providing
direct evidence of discrimination or by creating an inference of unlawful discrimination under
the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973). Bone v. G4S Youth Services, LLC, 686 F.3d 948, 953 (8th Cir. 2012). Direct evidence is
evidence “showing a specific link between the alleged discriminatory animus and the challenged

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decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated” the adverse employment action. Torgerson v. City of Rochester, 643 F.3d
1031, 1043-44 (8th Cir. 2011). Therefore, “direct” refers to the causal strength of the proof, not
whether it is “circumstantial” evidence. Id. A plaintiff with strong (direct) evidence that illegal
discrimination motivated the employer’s adverse action does not need the three-part McDonnell
Douglas analysis to get to the jury, irrespective of whether his strong evidence is circumstantial.
Id. However, “if the plaintiff lacks evidence that clearly points to the presence of an illegal
motive, [s]he must avoid summary judgment by creating the requisite inference of unlawful
discrimination through the McDonnell Douglas analysis, including sufficient evidence of
pretext.” Id.
A.

Direct-Evidence Analysis

A remark by a decisionmaker, in order to be direct evidence of sex discrimination, must
show a specific link between a discriminatory bias and the adverse employment action, sufficient
to support a finding by a reasonable fact-finder that the bias motivated the action. Torgerson,
643 F.3d at 1045-46 (citing McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860–61
(8th Cir. 2009); cf. Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1213–14 (8th Cir.
2001) (school board president’s statements that “a woman can’t handle [the administrator’s] job”
and that the employee was “a woman in a man’s job” are direct evidence of sex discrimination);
Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1318, 1324 (8th Cir. 1994)
(supervisor’s comment that “women in sales were the worst thing” to happen to the company is
direct evidence of sex discrimination)).
Triple Transport alleges that Mr. Krug’s statement as described in Mr. Thomas’s affidavit
was not made in reference to Ms. Cook or her application for employment, that the affidavit by

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Mr. Thomas is silent as to the timing of Mr. Krug’s statement, and that Mr. Krug has stated
under oath that if he had made a similar comment, it “would have been a long time ago.”
However, Mr. Krug did acknowledge that he “probably” made that statement in his past. Triple
Transport argues that, even if Mr. Krug made statements regarding female applicants at the time
surrounding Ms. Cook’s application and even if he had made these statements in reference to
Ms. Cook, Triple Transport still considered Ms. Cook’s application.
Triple Transport relies solely on Con-Way Freight in its analysis of direct evidence and
as support for its argument that this Court should grant summary judgment. E.E.O.C. v. ConWay Freight, Inc., 622 F.3d 933 (8th Cir. 2010). In Con-Way Freight, plaintiff brought suit
against defendant for race discrimination. Roberta Hollins, an African-American female, applied
for a job at Con-Way Freight. She met with the service center manager, Kenneth Gaffney. Mr.
Gaffney told Kevin Beer, the vice-president of operations, about Ms. Hollins, stating she was the
ideal candidate. Mr. Beer, upon learning of Ms. Gaffney’s race, told Mr. Gaffney that he would
be “opening a can of warms” by hiring her and he “probably [didn’t] want to go that route.” The
district court granted summary judgment in favor of Con-way Freight. Ms. Hollins argued
unpersuasively that, but for Mr. Beer’s comment, Mr. Gaffney would have moved forward to
hire Ms. Hollins. In response to that argument, the court determined that plaintiff ignored the
“fact that Mr. Gaffney did not have authority to hire Ms. Hollins (or anyone else) without first
obtaining the personnel department’s approval following a background check.” Id. at 936.
That argument is different from the one advanced by Ms. Cook. This Court concludes
Con-Way Freight is distinguishable from this case. The affidavit from Mr. Thomas which Triple
Transport attaches to its moving papers states that, at the next managers’ meeting after Ms. Cook
applied for the job, Mr. Thomas, Mr. Kifer, and Mr. Krug discussed Ms. Cook’s application.

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Mr. Thomas states that Mr. Kifer attempted to talk Mr. Krug into hiring Ms. Cook, as he had
previously worked with her at Integrity. According to Mr. Thomas, Mr. Krug stated he does not
“hire women or n-----s.” This is a different comment from the one alleged in Con-Way Freight.
Even though Triple Transport argues that the affidavit does not state when this alleged
statement occurred, from the face of Mr. Thomas’s affidavit, a reasonable fact finder could
determine that Mr. Krug allegedly made those remarks during the managers’ meeting at which
Ms. Cook’s application was discussed, and thereafter, she was not hired.

The Court

acknowledges there may be motivations behind the statement, given that Mr. Thomas was
terminated from Triple Transport and given what Mr. Krug has testified to about the statement.
“In ruling on a motion for summary judgment, a court must not weigh evidence or make
credibility determinations.”

See Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th

Cir.2003).
Ms. Cook alleges that Mr. Krug had the authority to hire her. Triple Transport argues
that Ms. Cook has not presented evidence demonstrating the extent of Mr. Krug’s role in making
a hiring decision or influencing another manager’s decision in determining whether to hire Ms.
Cook, but this is unpersuasive. Even under Triple Transport’s version of events, Mr. Krug
participated in the hiring decision (Dkt. No. 11-8, at 1). The facts alleged here are different from
the facts alleged in Con-Way Freight. For these reasons, this Court concludes Con-Way Freight
does not control.
The Court finds that these alleged statements by Mr. Krug, as set forth in Mr. Thomas’s
affidavit, when viewed in the light most favorable to Ms. Cook constitute a strong causal link
between the adverse employment decision and impermissible discriminatory motives.
Torgerson, 643 F.3d at 1044. There are factual issues in dispute that should be resolved by a

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jury.

Even if the Court were to find that Ms. Cook failed to present direct evidence of

discrimination, her claim would still proceed to trial based upon this Court’s McDonnell Douglas
analysis.
B.

McDonnell Douglas Analysis

To establish a prima facie case of gender discrimination, a plaintiff must show that she:
“(1) is a member of a protected class; (2) was qualified for her job; (3) suffered an adverse
employment action; and (4) alleged facts that give rise to an inference of gender discrimination.”
Norman v. Union Pac. R.R. Co., 606 F.3d 455, 460-61 (8th Cir. 2010). If a plaintiff makes out a
prima facie case, she “creates a presumption of unlawful discrimination, rebuttable through the
showing of a legitimate nondiscriminatory reason for the action.” Tyler v. Univ. of Arkansas Bd.
of Trustees, 628 F.3d 980, 990 (8th Cir. 2011). Finally, a plaintiff “may still demonstrate the
employer’s proffered reason was pretextual and unlawful discrimination was a motivating factor
in the adverse employment decision.” Id.
The parties disagree whether Ms. Cook can establish a prima facie case of gender
discrimination.

For purposes of its motion for summary judgment, Triple Transport

acknowledges that Ms. Cook is a female and that her application for employment was denied.
Triple Transport affirmatively states that other candidates to which it extended offers of
employment were qualified for the job and that none displayed behavior similar to that of Ms.
Cook during the application process. Further, Triple Transport states that the nature of the
industry in which it conducts business historically has a high ratio of male drivers to female
drivers. Triple Transport hired a male to fill the open position. Triple Transport does not dispute
that Ms. Cook satisfies the first, third, and fourth elements of her prima facie case. The key issue
is whether Ms. Cook has presented evidence sufficient to create a genuine issue of material fact

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as to the second element: that is, whether she was qualified for the position.

This Court

concludes that she has.
1.

Qualified for the Position

Triple Transport contends that Ms. Cook cannot establish a prima facie case because she
was not qualified for the position. At the prima facie stage of a sex discrimination case, the
employee must demonstrate objective qualifications. Kratzer v. Rockwell Collins, Inc., 398 F.3d
1040, 1046-47 (8th Cir. 2005); Legrand v. Trustees of University of Arkansas at Pine Bluff, 821
F.2d 478, 481 (8th Cir. 1987). The qualification necessary to shift the burden to the defendant for
an explanation of the adverse job action is minimal; plaintiff must show only that she possesses
the basic skills necessary for performance of the job. Haigh v. Gelita USA, Inc., 632 F.3d 464,
471 (8th Cir. 2011).
Triple Transport challenges Ms. Cook on this point in part by claiming that it is unknown
whether Ms. Cook was objectively qualified for the position, given that she would have to pass a
motor vehicle record check, a drug test, and a verification of employment records. To establish
she was qualified, Ms. Cook offers a statement by Mr. Kifer, a manager employed by Triple
Transport, that she “is probably one of the best drivers that [he’s] ever had.” Furthermore, Triple
Transport acknowledges that Ms. Cook was the only female driver at Future Energies, Marable,
and Lindsey Hauling and the only female driver for most of her employment at JEG, Paladino,
and Night Hawk. The record includes testimony from Ms. Cook that, when she spoke to Mr.
Thomas, he indicated she would be able to start as soon as she took her drug test. There also is
some evidence in the record that a driver involved in a roll-over accident was hired by Triple
Transport. Viewing the evidence in the light most favorable to Ms. Cook, the Court concludes
that she has established she was qualified for the position. Togerson, at 1047 (“The burden of

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establishing a prima facie case of disparate treatment is not onerous.”). Therefore, the Court
finds that Ms. Cook has established her prima facie case of discrimination.
2.

Legitimate, Nondiscriminatory Reason

Because the Court finds that Ms. Cook has established a prima facie case of
discrimination, next the burden shifts to Triple Transport to show that there was a legitimate,
nondiscriminatory reason for denying employment. “This burden is not onerous.” Bone, 686
F.3d at 954. Courts do not “sit as super-personnel departments reviewing the wisdom or fairness
of the business judgments made by employers, except to the extent that those judgments involve
intentional discrimination.” Id. at 955 (internal quotation omitted). Triple Transport need only
proffer a good-faith reason for its action. Id. Once the employer provides this reason, “the
presumption of discrimination disappears, requiring the plaintiff to prove that the proffered
justification is merely a pretext for discrimination.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845,
850 (8th Cir. 2005), abrogated on other grounds by Torgerson, 643 F.3d 1031.
Triple Transport has offered several reasons for not hiring Ms. Cook. On September 9,
2011, Triple Transport cited Ms. Cook’s conduct at her previous employer as potentially creating
a problem in the workplace and cited her impatience and hostility during the application process.
On October 9, 2012, Triple Transport stated that she was not hired due to her unprofessional
decorum during the application process and her driving issues. Most recently, Triple Transport
in its motion for summary judgment states that her behavior created a legitimate
nondiscriminatory basis for declining to hire Ms. Cook or for continuing any further process in
consideration for employment. Specifically, Triple Transport states that Ms. Cook’s behavior
substantially interfered with Triple Transport’s workplace process and Ms. Peckham’s ability to
perform her own job.

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The Court determines Triple Transport has articulated a legitimate, nondiscriminatory
reason not to hire Ms. Cook. Therefore, “the presumption of discrimination disappears,” and the
burden of persuasion shifts back to Ms. Cook “to prove that the proffered justification is merely
a pretext for discrimination.” Id.
3.

Pretext

The burden shifts to Ms. Cook to show that Triple Transport’s proffered reason was
pretextual, and that Triple Transport did not hire her as a result of gender discrimination. The
Eighth Circuit has explained that “[t]here are at least two ways a plaintiff may demonstrate a
material question of fact regarding pretext.” Torgerson, 643 at 1047. First, “[a] plaintiff may
show that the employer’s explanation is unworthy of credence because it has no basis in fact.
Alternatively, a plaintiff may show pretext by persuading the court that a [prohibited] reason
more likely motivated the employer.” Id.
A substantial change in an employer’s legitimate, nondiscriminatory reason for firing an
employee may be probative of pretext, but the Eighth Circuit has been clear that these
discrepancies must actually be substantial. See E.E.O.C. v. Trans States Airlines, Inc., 462 F.3d
987, 995 (8th Cir. 2006). Where employers give “two completely different explanations for their
decisions to terminate their employees,” such a substantial change is established. Id. (citing
Briscoe v. Fred’s Dollar Store, Inc., 24 F.3d 1026, 1027–28 (8th Cir. 1994), and E.E.O.C. v.
Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)). However, where the employer “has not
wavered from its one explanation for terminating” the employee, there is no substantial change.
Trans States Airlines, Inc., 462 F.3d at 995.
As explained, Triple Transport has offered several reasons over time for not hiring Ms.
Cook. There are disputed issues of material fact surrounding the reasons Triple Transport

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offered in the past and the reasons it offers now for not hiring Ms. Cook. Although this Court is
not entirely convinced that there was a “substantial change” in the reasons given by Triple
Transport over time, the Court acknowledges the reasons did change and that the factual disputes
surrounding the reasons may lead a reasonable fact finder to conclude that the employer’s
explanation is unworthy of credence.
Moreover, and more importantly, Mr. Thomas’s affidavit creates a genuine issue of
material fact regarding whether a prohibited reason more likely motivated Triple Transport not to
hire Ms. Cook. There also is some evidence in the record that another employee of Triple
Transport informed Ms. Cook that the owner would not hire women drivers because he did not
want to worry about them out at night on location by themselves, that Ms. Cook raised this issue
with Ms. Peckham during their conversation, and that Ms. Peckham did not deny this when
confronted with it but instead responded that “maybe the policy has changed” (Dkt. No. 17-2, at
20). A reasonable jury could find this evidence demonstrates pretext for discrimination. When
viewed in the light most favorable to Ms. Cook, there are genuine issues of material fact in
dispute as to whether a prohibited reason more likely motivated Triple Transport not to hire her.
The Court concludes these factual disputes must be resolved by a jury.
***
For these reasons, Triple Transport’s motion to strike (Dkt. No. 18) and motion for
summary judgment (Dkt. No. 11) are denied.
IT IS SO ORDERED this 1st day of March, 2013.

______________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE
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