Shearer v. Hirschbach Motor Lines, Inc.

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RICHARD HAROLD SHEARER, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC., Defendant.

No. 21-CV-1014 CJW-MAR

United States District Court, N.D. Iowa, Eastern Division

June 28, 2022

MEMORANDUM OPINION AND ORDER

C.J Williams United States District Judge

TABLE OF CONTENTS

I. BACKGROUND ...................................................................................4

A. The Parties and Others ...................................................................................4

B. The Agreement ...................................................................................5

C. Truck Lease ...................................................................................12

D. Plaintiff's Performance of Services ...................................................................................12

E. Plaintiff's Interactions with Gatena ...................................................................................14

F. Plaintiff's Driving for Defendant After Reporting Sexual Harassment ...................................................................................16

G. Knowledge of Sexual Relationships Among Defendant's Employees...................................................................................18

II. SUMMARY JUDGMENT STANDARD ...................................................................................19

III. DISCUSSION...................................................................................21

A. Whether Plaintiff Was an Independent Contractor ...................................................................................22

1. Plaintiff's Control Over Tasks ...................................................................................24

2. Skill Required ...................................................................................25

3. Source of Instrumentalities and Tools ...................................................................................26

4. Location of Work ...................................................................................27

5. Duration of the Relationship ...................................................................................27

6. Defendant's Assignment of Additional Work ...................................................................................28

7. Plaintiff's Control Over Time and Hours ...................................................................................28

8. Method of Payment...................................................................................29

9. Plaintiff's Role in Hiring and Paying Assistants ...................................................................................29

10. Defendant's Regular Business ...................................................................................30

11. Whether Defendant is in Business ...................................................................................30

12. Provision of Employee Benefits ...................................................................................31

13. Plaintiff's Tax Treatment ...................................................................................31

14. Economic Realities ...................................................................................32

15. Terms of Agreement ...................................................................................32

16. Summary ...................................................................................33

B. Whether There is Evidence of Retaliation ...................................................................................34

1. Retaliation by Decreasing Revenue ...................................................................................35

2. Retaliation by Removal From Truck ...................................................................................39

C. Whether There is Evidence Defendant Knew of Danger ...................................................................................41

IV. CONCLUSION ...................................................................................46

This matter is before the Court on defendant's motion for summary judgment on plaintiff's complaint alleging sexual harassment, retaliation, and negligent hiring, retention, and supervision. (Docs. 29 & 33). Plaintiff filed a timely resistance. (Docs. 40 & 42). Defendant filed a timely reply. (Doc. 48). For the following reasons, the Court grants defendant's motion for summary judgment.

I. BACKGROUND

The following facts are undisputed unless otherwise noted. The Court will discuss additional facts as they become necessary to its analysis.

A. The Parties and Others

Plaintiff Richard Shearer is a professional truck driver who earned a commercial driver's license. (Docs. 29-1, at 1; 40-1, at 2). Defendant Hirschbach Motor Lines, Inc., (“defendant” or “the Company”) is an Iowa corporation engaged in interstate trucking. (Docs. 29-1, at 1; 40-1, at 1). Defendant employs drivers working directly for it and also hires independent contractors to haul loads for it. (Docs. 29-1, at 13; 401, at 24). Kara Gatena (“Gatena”) was employed with defendant as the Senior Director of Fleet Management and later as a driver manager until she was fired in November 2020. (Docs. 29-1, at 2; 40-1, at 2; 40-2, at 12-13; 45, at 16-17). Gatena was a member of upper management. (Docs. 40-1, at 2; 40-2, at 12-13; 45, at 16-17). Dan Wallace (“Wallace”), defendant's President, was Gatena's direct supervisor. (Docs. 29-1, at 2; 40-1, at 2).

From approximately 2016 through 2020, plaintiff provided trucking services for companies, including defendant. (Docs. 29-1, at 1; 40-1, at 2).

On March 5, 2019, while attending a driver orientation program at defendant's headquarters, plaintiff signed paperwork authorizing a law firm to form an Iowa limited liability company for him, which he called Truckin Right, LLC (“Truckin Right”). (Docs. 29-1, at 2; 40-1, at 2-4). Defendant preferred contracting with entities, as opposed to individuals, because it made it easier for defendant to argue that the drivers were independent contractors. (Docs. 40-2, at 4; 45, at 5-6).

B. The Agreement

On March 6, 2019, plaintiff, through his company Truckin Right, and defendant entered into “Independent Contractor Agreement” (“Agreement”). (Docs. 29-1, at 2; 40-1, at 3-4; 31, at 21-49). In the Agreement, plaintiff's company was identified as the “contractor” and defendant as the “carrier.”

Paragraph 1 of the Agreement provided:

STATUS AND INTENT OF PARTIES. The parties expressly intend and stipulate that CONTRACTOR is and shall remain an independent contractor, as distinguished from an employee or agent of CARRIER, throughout the term of this Agreement. Neither CONTRACTOR nor any driver, employee or other worker engaged by CONTRACTOR shall be deemed an employee or agent of CARRIER under any circumstances or for any purpose, including but not limited to, federal or state payroll taxes, income tax withholding, workers' compensation coverage or unemployment insurance tax.

(Doc. 31, at 21).

Paragraph 2(b) of the Agreement provided that “[e]ither party may provide written notice of termination to the other party[.]” (Id.).

Paragraph 3 of the Agreement states, in pertinent part:

PROVISION OF SERVICES AND EQUIPMENT.

CONTRACTOR agrees and warrants:

(a) During the term of this Agreement, CONTRACTOR shall provide CARRIER professional truck driving services, other incidental transportation related services, and the use of the Equipment identified in the table below for freight-hauling on behalf of CARRIER.

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(d) To furnish at its expense all fuel, maintenance, repairs and other items necessary to the operation of the equipment. CONTRACTOR shall have the right to maintain and repair the Equipment at any place contractor chooses at CONTRACTOR's expense. CONTRACTOR may, at CONTRACTOR'S discretion, participate in any fuel purchase or maintenance and repair program offered by CARRIER to facilitate efficiency and economy in those regards, but in any event, the ultimate responsibility to maintain, including but not limited to fueling, the Equipment in proper working condition and in full compliance with all applicable laws and regulations shall remain with CONTRACTOR.

(e) That, according to FMCSA Regulations, CONTRACTOR shall, at CONTRACTOR's expense, equip and maintain the Equipment in safe condition and in complete compliance with all laws and regulations of the states in which CONTRACTOR operates and the DOT. In order to ensure compliance with all DOT regulations-and unless CONTRACTOR provides CARRIER a copy of an inspection report showing the Equipment passed a full annual DOT inspection pursuant to 49 C.F.R. § 396.17 within sixty (60) days before the Effective Date of this Agreement- CONTRACTOR shall, at CONTRACTOR's expense, at the start of this Agreement, make the Equipment available for such an inspection at a maintenance facility operated or approved by CARRIER, and shall have any necessary maintenance or repairs done at CONTRACTOR's expense. During this Agreement, CONTRACTOR shall, at CONTRACTOR's expense, have a full annual DOT inspection performed once every one hundred eighty (180) days at a maintenance facility operated or approved by CARRIER....

(f) That, according to FMCSA Regulations, including at 49 C.F.R. Part 390, the Equipment subject to this Agreement shall be “placarded” on both sides to identify CARRIER, under whose authority it is being operated. Similarly, CARRIER'S name shall appear on both sides of the unit following the words “OPERATED BY.” The identification contemplated herein shall be affixed to the Equipment by CARRIER at CARRIER'S cost, before placing the Equipment in CARRIER's service, and shall be displayed

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