United States District Court, E.D. Arkansas, Western Division
REBECCA L. NICHOLS, Plaintiff,
TRI-NATIONAL LOGISTICS INC.; RMR DRIVER SERVICES, INC.; JAMES PARIS; CHARLES KYE; and DONALD LEWIS, Defendants.
OPINION AND ORDER
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 31st, the records show she exchanged text messages with Paris between 6:18 p.m. on May 31 and 8:41 a.m. on June 1. On June 1, 2012, Nichols exchanged several phone calls with Paris between 9:09 a.m. and 1:04 p.m.
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, ...