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Pearce v. Werner Enters., Inc.

United States District Court, D. Nebraska

July 22, 2015

CHARLEEN A. PEARCE, an Individual, Plaintiff,
WERNER ENTERPRISES, INC., a Nebraska Corporation, and DRIVERS MANAGEMENT, LLC, a Delaware Limited Liability Company, Defendants

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For Charleen A. Pearce, an Individual, Plaintiff: Michael J. Merrick, MERRICK LAW FIRM - NEBRASKA, Omaha, NE; Ronald L. Brown, BROWN, THEIS LAW FIRM, Omaha, NE.

For Werner Enterprises, Inc., a Nebraska Corporation, Drivers Management, LLC, a Delaware Limited Liability Company, Defendants: Henry L. Wiedrich, Michaelle L. Baumert, HUSCH, BLACKWELL LAW FIRM - OMAHA, Omaha, NE.

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John M. Gerrard, United States District Judge.

This matter is before the Court on the motion to dismiss (filing 13) filed by defendant Werner Enterprises, Inc. For the reasons discussed below, the motion will be granted in part, with the remainder of the motion being denied.

I. Factual Background[1]

Werner is a Nebraska corporation with its principal place of business in Nebraska. Defendant Drivers Management, LLC is a Delaware LLC based in Nebraska. Drivers is wholly owned by another Delaware LLC which, in turn, is wholly owned by Werner--in other words, Werner is Drivers' " grandparent" corporation. Filing 1-1 at ¶ ¶ 4-5; filing 10. In January 2013, plaintiff Charleen A. Pearce, an Alabama resident, began her employment with Drivers as a student truck driver. This case arises from the sexual harassment, culminating in an assault and battery, that Pearce alleges she suffered at the hands of a Werner employee, Robert Helvering.[2]

Pearce alleges that Helvering has a history of sexually harassing female employees. Prior to being hired by Werner, Helvering was fired from his job at Union Pacific for multiple incidents of sexual harassment, including unwanted physical contact. Filing 1-1 at ¶ ¶ 6-17. Helvering disclosed this history of misconduct to Werner when it hired him.[3] Filing 1-1 at ¶ 20.

Helvering continued his pattern of harassing behavior while employed at Werner. In 2008, Werner officials received an anonymous complaint that Helvering, who sometimes did his work as a dispatcher from his home, was " using his position to procure women while on the job." Filing 1-1 at ¶ 28. In 2011, Werner received complaints from two female drivers that they had been subjected to sexual harassment by Helvering. Filing 1-1 at ¶ ¶ 33-39.

Pearce alleges that from the outset of her employment with Drivers in 2013, she was subjected to sexual harassment and a

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hostile work environment. After being sexually harassed by her first driver-trainer, she was assigned a new driver-trainer, Mary Cunningham, who continued the harassment. Among other things, Pearce alleges that Cunningham frequently made sexually-explicit comments, suggested that they should have sex, and would, in Pearce's presence, engage in sexually explicit phone calls, send sexually explicit text messages and photographs to fellow drivers and trainers, and would dictate such messages to Pearce and require her to text them on her behalf. Filing 1-1 at ¶ ¶ 45-54.

Cunningham and Pearce were on Helvering's " drivers board," which meant that he was responsible for routing their truck. Filing 1-1 at ¶ 55. Pearce alleges that Cunningham flirted with Helvering, who texted a photo of himself to Cunningham and asked her and Pearce for photos of themselves. Pearce alleges that Helvering also made vulgar comments to her and Cunningham. Filing 1-1 at ¶ ¶ 57, 59.

On March 4, 2013, Cunningham and Pearce were passing through Omaha, Nebraska. Helvering met them at Werner's cafeteria for lunch and made plans to take them out to dinner that night. Helvering told Cunningham that he would meet her at her hotel room, which she shared with Pearce, to discuss giving Cunningham more miles (which would result in increased compensation). Filing 1-1 at ¶ ¶ 60-61.

Later that day, Pearce alleges, Helvering entered her hotel room with his pants partially unzipped, and closed the door and locked the deadbolt. Helvering began talking to Cunningham about giving her more miles, and after telling her he could give her 5,000 more miles a week, he approached Cunningham and began kissing and groping her. Pearce alleges that Cunningham twice attempted to extricate herself, but that he continued to kiss and grope her, and so Pearce " began making noise to distract Helvering." Filing 1-1 at ¶ ¶ 62-66. Pearce alleges that Helvering then approached her and forcefully grabbed one of her breasts, and that after she pushed him back, he began approaching her again. Cunningham yelled at Helvering to stop and told Pearce to get outside, which she did. Filing 1-1 at ¶ ¶ 69-72. Cunningham and Helvering emerged from the hotel room approximately 20 minutes later. Cunningham told her that they still had to go to dinner with Helvering. Helvering then approached Pearce and forcefully grabbed her arm and pulled her close, then told her in a threatening manner that all they did in the hotel room was kiss and hug. Pearce alleges that she suffered scratches and bruises from Helvering's attack. Later that night, Pearce reported the incident to police and defendants' officials. Helvering was arrested, and his employment with Werner was terminated. Filing 1-1 at ¶ ¶ 73-79.

Pearce alleges that after returning to work from medical leave on March 20, 2013, she was again harassed by her new trainer. In April 2013 she took medical leave to obtain psychiatric treatment. She subsequently filed charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC). On May 13, the EEOC notified Drivers of Pearce's charges. On May 15, Drivers terminated Pearce's employment. Filing 1-1 at ¶ ¶ 80-85.

II. Standard of Review

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. Id. While the Court must accept as true all facts pleaded by the nonmoving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a complaint states ...

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