Pearce v. Werner Enters., Inc.

116 F.Supp.3d 948

Charleen A. PEARCE, an Individual, Plaintiff,

v.WERNER ENTERPRISES, INC., a Nebraska Corporation, and Drivers Management, LLC, a Delaware Limited Liability Company, Defendants.

No. 8:14–CV–290.

United States District Court, D. Nebraska.

Signed July 22, 2015.

Michael J. Merrick, Merrick Law Firm, Ronald L. Brown, Brown, Theis Law Firm, Omaha, NE, for Plaintiff.

Henry L. Wiedrich, Michaelle L. Baumert, Husch, Blackwell Law Firm, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, 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 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 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, 129 S.Ct. 1937. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937.

III. ANALYSIS

Pearce asserts that Werner is vicariously liable for the alleged torts of its employee, Helvering, and brings Nebraska common law claims for battery, assault, and intentional infliction of emotional distress against Werner (counts I through III of Pearce's complaint). Pearce also asserts that Werner is directly liable for its own negligence in hiring, supervising, and retaining Helvering (count IV). And Pearce brings claims under various state and federal anti-discrimination statutes against Drivers, for sexual harassment, disability discrimination, and retaliation (counts V through XIV). Pearce's claims against Drivers are not before the Court at this time.

In its motion to dismiss, Werner contends that the Nebraska Workers' Compensation Act (the Act), Neb.Rev.Stat. § 48–101 et seq., provides the exclusive remedy for all of Pearce's claims against Werner. So, Werner argues, Pearce's claims belong in front of the Nebraska Worker's Compensation Court, and must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Alternatively, Werner moves to dismiss Pearce's claims for assault, battery, and intentional infliction of emotional distress for failure to state a claim. Werner contends that on the facts alleged, it cannot be held vicariously liable for the intentional torts of Helvering.

The Court finds Werner's first argument unpersuasive, but finds merit in its second argument. On the facts alleged, Werner cannot be held vicariously liable for Helvering's alleged intentional torts (counts I through III). However, Pearce's negligence claim against Werner (count IV) will proceed, as will her claims against Drivers for gender and disability discrimination and retaliation under state and federal law (counts V through XIV).

A. Worker's Compensation Act

The Act is an employee's exclusive remedy against an employer for an accidental injury arising out of and in the course of employment. Estate of Teague by and through Martinosky v. Crossroads Coop. Assoc., 286 Neb. 1, 834 N.W.2d 236, 243 (2013). And the Nebraska Workers' Compensation Court has exclusive jurisdiction in actions arising under the Act. See Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591, 593 (1989).

In her complaint, Pearce alleges that Drivers, not Werner, was her employer. Werner maintains, however, that it should be considered Pearce's "joint" or "special" employer in conjunction with Drivers. See, Daniels v. Pamida, Inc., 251 Neb. 921, 561 N.W.2d 568, 571–72 (1997) (special); White v. W. Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704, 708–09 (1980) (joint). In support, Werner has submitted certain evidentiary materials, including a declaration from one of its vice presidents describing the relationship between Werner and Drivers, a copy of a "Service Agreement" between Werner and Drivers, and a job description for Helvering's position with Werner. See filing 14. Werner contends that because the Worker's Compensation Court has exclusive jurisdiction to hear claims arising under the Act, this Court lacks subject matter jurisdiction. Therefore, Werner argues, its challenge is properly brought under Fed.R.Civ.P. 12(b)(1), and thus the Court is permitted to consider evidentiary materials outside the pleadings.

Werner's argument is without merit. This Court has federal question jurisdiction over Pearce's federal claims against Drivers, and...