Equal Employment Opportunity Commission v. New Prime Inc

Filing 145

ORDER denying Defendant's 94 motion for summary judgment. Signed on 2/4/2020 by District Judge Roseann Ketchmark. (Phillips, Caleb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
NEW PRIME INC, D/B/A PRIME, INC.;
Defendant.

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Case No. 6:18-03177-CV-RK

ORDER DENYING SUMMARY JUDGMENT
This is a sexual harassment case brought by Plaintiff the Equal Employment Opportunity
Commission (“EEOC”) and Intervenor-Plaintiff Melinda Huerta. Before the Court is Defendant
New Prime, Inc.’s (“Prime’s”) motion for summary judgment. (Doc. 94.) The Court heard oral
arguments on the motion after full briefing. (Docs. 95, 99, 102, 138, Oral Argument Tr.; see also
Doc. 129, Pretrial Conference Tr. (discussing summary judgment).) For the reasons stated below
and in open court during oral arguments (Doc. 138), the motion is DENIED.
Background
The following facts are taken from the parties’ statements of uncontroverted material facts
and drawn in the light most favorable to Plaintiffs. (Docs. 99, 102.) Huerta is a truck driver
employed by Prime. After she completed her training with Prime, she arranged to co-drive with
Eric Weekley on his truck because she still was not comfortable driving a truck by herself. Before
Huerta and Weekley started driving together, they met with their fleet manager at Prime,
Derek Hausman. (Doc. 99-3, Hausman Dep. at 99:11-15.) At the time, Hausman knew about
previous allegations that Weekley had sexually harassed a trainee. (Id. at 100-102.) Hausman
participated in the prior sexual harassment investigation and was aware Weekley was no longer
allowed to train drivers. However, because Hausman believed this was confidential information
that could not be disclosed to Huerta (now a non-trainee), he did not tell her about the prior
allegations, and he ultimately signed off on her driving with Weekley. (Id. at 102:9-103:2; Doc.
99-15, Pay Agreement signed by Weekley, Huerta, and Hausman.)
Huerta claims that Weekley continually sexually harassed her while she was on his truck.
According to Huerta, Weekley asked her for sex and made sexual comments every day, a couple

times a day, for five out of the six weeks they drove together. Huerta claims that she repeatedly
rejected Weekley’s advances and objected to all of his comments. Huerta also stated in her
deposition that Weekley told her he had been caught with a gun on his truck (Doc. 99-1 at 35) and
that he had previously been arrested for rape. He also insinuated to her that he had killed his wife.
According to Huerta, Weekley told Huerta she would lose her job if she got off the truck, and she
felt physically threatened by Weekley at times when she suggested she would not continue to drive
with him. Huerta claims she was scared she would lose her job if she reported Weekley’s behavior,
and she believed if she just left the truck she would be fired and have nowhere to go or stay safely.
Huerta eventually reported Weekley’s conduct to Prime when a friend insisted that she do
so, and she was removed from Weekley’s truck and given a ride to Springfield, Missouri. She
remains an employee of Prime. Plaintiffs filed this lawsuit seeking damages and injunctive relief
under Title VII of the Civil Rights Act of 1964, and Prime has filed a motion for summary
judgment, which Plaintiffs oppose.
Legal Standard
The Court “shall grant summary judgment 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. The Court views the evidence “in the light most favorable to the nonmoving
party and giv[es] the nonmoving party the benefit of all reasonable inferences.”
Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation
marks omitted).
Discussion
To establish a hostile work environment claim under Title VII, Plaintiffs must show that
(1) Huerta is a member of a protected group; (2) she was subject to unwelcome harassment; (3)
the harassment was based on sex; (4) the harassment was so severe or pervasive that it affected a
term, condition, or privilege of her employment; and (5) Prime knew or should have known of the
harassment and failed to take appropriate remedial action. Scusa v. Nestle U.S.A. Co., 181 F.3d
958, 965-66 (8th Cir. 1999). Prime argues that Plaintiffs cannot satisfy the second element
(unwelcomeness) and the fourth element (severity or pervasiveness). Although the evidence at
trial may show that Prime is correct, the Court cannot resolve Plaintiffs’ claims as a matter of law
on the present record.

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I.

Unwelcomeness
Prime argues that Plaintiffs cannot show unwelcomeness because she engaged in behavior

similar to Weekley’s while she was on the truck. Conduct is considered unwelcome if the plaintiff
“neither solicited it nor invited it and regarded the conduct as undesirable or offensive.” Scusa,
181 F.3d at 966. “The proper inquiry is whether [the plaintiff] indicated by [his or her] conduct
that the alleged harassment was unwelcome.” Id. (quotation marks and citations omitted). “[T]he
question whether particular conduct was indeed unwelcome presents difficult problems of proof
and

turns

largely

on

credibility

determinations

committed

to

the

trier

of

fact . . . .” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).
Here, Prime points to text messages showing that Huerta used sexually charged language
while she was on the truck; that she once told Weekley about a sexual encounter she had with her
boyfriend; and that on one occasion, she voluntarily asked Weekley to join her at a bar. Prime
also argues that Huerta welcomed Weekley’s sexual advances by sending sexually explicit texts
to her boyfriend even though she believed Weekley was monitoring her texts.
This issue cannot be resolved on the present record. The text messages cited by Prime do
not definitively show that Huerta was inviting Weekley’s daily requests for sex. To the contrary,
some of her text messages show that she affirmatively told Weekley she was not interested in a
sexual relationship with him and that she wanted to keep their relationship focused on making
money. The text messages also do not give the Court a complete picture of the atmosphere on
Weekley’s truck. Although some of Huerta’s language can accurately be described as sexually
charged, Prime’s lead example was clearly meant as a rejection of Weekley’s advances.1 And
although Huerta apparently gave Weekley some details about a sexual encounter she had with her
boyfriend, the Court cannot discern how much detail was given or with what inflection, tone, or
demeanor.

Live testimony will be necessary for the Court to determine whether the

unwelcomeness question is submissible to the jury. See McLain v. Meier, 612 F.2d 349, 356
(8th Cir. 1979) (discretion to deny summary judgment and further develop the record at trial);
Burlison

v.

Warner-Lambert

Co.,

842

F.2d

991,

992

(8th

Cir.

1988)

(same);

Taylor v. Truman Med. Ctr., No. 03-00001-CV-W-HFS, 2006 WL 2796389, at *3
(W.D. Mo. Sept. 25, 2006) (denying summary judgment, despite apparent deficiencies in the

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Huerta said to Weekley, “I wouldn’t touch you with Jenna Jamison’s [expletive].” (Doc. 95 at 8.)

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plaintiff’s case, because the record was inconclusive); Fed. R. Civ. P. 50(a) (judgment as a matter
of law when no reasonable jury could find for the plaintiff after the presentation of evidence).
The primary cases cited by Prime do not persuade the Court otherwise.

In

Elkins v. Miller County, Arkansas, 2019 WL 5399516, at *5 (W.D. Ark. Oct. 22, 2019), the
plaintiff (a patrol officer) failed to cite any record evidence showing that she regarded the behavior
of her patrol partner as undesirable or offensive at the time it occurred. The undisputed facts also
showed that the plaintiff brushed off the defendant’s repeated sexual advances by shopping for
lingerie in the defendant’s presence and accepting his invitation to ride four-wheelers on one
occasion. Id. Unlike in Elkins, Plaintiffs have submitted evidence showing that Huerta regarded
Weekley’s advances as undesirable or offensive at the time they occurred. Specifically, there are
text messages in the record suggesting that Huerta told Weekley she wanted to keep the
relationship professional, and she stated in interrogatory responses that she objected to all of
Weekley’s comments. Although Huerta apparently invited Weekley to a bar on one occasion, the
Court disagrees that this necessarily means she welcomed his sexual advances.
In Ryan v. Capital Contractors, Inc., 679 F.3d 772, 779 (8th Cir. 2012), the plaintiff “failed
to send a consistent signal” that the defendant’s name-calling (due to the plaintiff’s low
intelligence allegedly in violation of the Americans with Disabilities Act) was unwelcome because
the plaintiff had engaged in similar types of name-calling. Here, it is far from clear on this record
that Huerta’s actions indicated to Weekley that he was welcome to ask her for sex everyday—
especially given that she told him she wanted to keep their relationship professional.
For essentially the same reason, this case is also unlike Pimentel v. St. Louis Public Schools,
No. 4:08-cv-1477-TIA, 2011 WL 128788, at *12 (E.D. Mo. Jan. 14, 2011). The plaintiff in that
case allowed the alleged harasser “to kiss her, hug her and touch her without objection on a number
of occasions.” Id. Here, the evidence before the Court does not establish that Huerta reciprocated
or accepted Weekley’s advances.
Accordingly, the Court cannot conclude on the present record that Plaintiffs’ case fails as
a matter of law on the unwelcomeness issue.
II.

Severity or Pervasiveness
Prime argues that the alleged harassment was not so severe or pervasive that it affected a

term, condition, or privilege of Huerta’s employment. “Title VII’s purpose is not to smooth the
rough edges of our daily discourse, nor to provide a federal cause of action for every slight.”
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Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1077 (8th Cir. 2006). “[T]he standards for a
hostile environment are demanding, and conduct must be extreme and not merely rude or
unpleasant to affect the terms and conditions of employment.” Blomker v. Jewell, 831 F.3d 1051,
1057 (8th Cir. 2016) (citations omitted). This inquiry has both an “objective” and a “subjective”
component, meaning the harassment must be severe or pervasive enough “to create an objectively
hostile or abusive work environment[,] and the victim must subjectively believe her working
conditions have been altered.” Id. at 1056 (quotation marks and citations omitted). “In judging
whether a reasonable jury could find the harassment to be pervasive or severe enough to alter the
terms of employment, [the Court] look[s] at the frequency with which the purported harassment
occurred, its severity, whether it was physically threatening or humiliating, and the extent to which
it interfered with the plaintiff’s job performance.” Powell, 445 F.4d at 1077.
Here, the record does not conclusively show a lack of severity or pervasiveness. It is
undisputed that Weekley requested sex from Huerta more than once every day for several weeks.
On this record, Weekley’s actions seem like more than the type of passing rudeness or
unpleasantness inherent in the “rough edges” of day-to-day life. Furthermore, although it appears
there were no overt threats in connection with Weekley’s sexual comments, Huerta felt physically
threatened by him at times—and he referenced a gun, told her he had been accused of rape, and
insinuated that he had killed his wife.
Prime suggests that the alleged misconduct was not severe enough because Weekley never
touched her and because her text messages show that she was more bothered by Weekley’s other
actions, such as not letting her shower often enough and allowing management to “walk all over”
him. The law is clear that an employee need not be touched to sustain a sexual harassment claim.
Wright v. Rolette Cty., 417 F.3d 879, 885 (8th Cir. 2005). Furthermore, as discussed above
regarding unwelcomeness, the Court cannot derive Huerta’s mental state or the atmosphere on the
truck simply by reading Huerta’s text messages.
Finally, Prime argues that the Eighth Circuit and other courts have sustained summary
judgment despite even more harassing behavior. E.g., Duncan v. Gen. Motors Corp., 300 F.3d
928, 934-35 (8th Cir. 2002) (describing cases involving egregious behavior where the courts found
no severity or pervasiveness); Blomker, 831 F.3d at 1057 (same); Powell, 445 F.3d at 1077 (“In
other cases, we have held that conduct more egregious than what is alleged to have occurred here
could not support a sexual harassment claim.”). Those cases are unlike this one for two reasons.
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First, none of those cases involved daily, repeated requests for sex. There were five
incidents of harassing behavior over a two-year period in Duncan; seven incidents over a threeyear period in Blomker; and “several” instances over a period of months in Powell. The holdings
in those cases are consistent with the notion that “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Blomker, 831 F.3d at 1057 (quotation mark and citation omitted). In
this case, it seems Weekley’s repeated sexual advances amounted to more than simple teasing and
were continual rather than offhand or isolated.
Second, none of those cases addressed a truck-driving scenario. This case is more like
Jenkins v. University of Minnesota, 838 F.3d 938, 945 (8th Cir. 2016). In Jenkins, the plaintiff
and the alleged harasser were conducting research alone together in the Alaskan wilderness, and
the Eighth Circuit stated as follows in finding that summary judgment was improper: “[a]ctions
that might not rise to the level of severe or pervasive in an office setting take on a different
character when the two people involved are stuck together for twenty-four hours a day with no
other people—or means of escape—for miles around.” Id. The same logic applies here. Huerta
was in a confined space in Weekley’s truck almost constantly, in remote locations throughout the
United States, with limited options for escape. Although the evidence may show differently at
trial, the Court cannot conclude as a matter of law on the present record that Weekley’s conduct
was not severe or pervasive enough to sustain a sexual harassment claim.2
Conclusion
Accordingly, for the reasons stated above and in open court during oral arguments, Prime’s
motion for summary judgment is DENIED. (Doc. 94.)
IT IS SO ORDERED.

DATED: February 4, 2020

s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT

2

Prime’s suggestions in support of its motion state in a footnote that summary judgment is also
appropriate for lack of a triable issue on element five of Plaintiffs’ claims—whether Prime knew or should
have known about the harassment and failed to take appropriate remedial action. (Doc. 95 at 17 n.4.)
However, Prime’s reply brief states that element five is not the subject of its motion. (Doc. 102 at 33.)
Accordingly, this argument has been abandoned for purposes of summary judgment, and the Court declines
to consider it sua sponte because Prime has not provided any briefing on the issue.

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