PASADENA, Calif. (CN) – The Ninth Circuit on Friday sided with a female trucker who accused CRST International of firing her after she reported that a male co-worker approached her naked while she slept during a cross-country haul.
A divided three-judge panel reversed the district court’s ruling in favor of trucking company CRST on the trucker’s hostile work environment and retaliation claims. However, it affirmed the lower court on state law claims against both CRST and one of its employees, Eric Vegtel.
“A reasonable jury could determine that Vegtel’s conduct was sufficiently severe and pervasive to create a hostile work environment, and that CRST failed to provide an effective remedy,” the panel wrote in a seven-page memorandum.
Robin Anderson sued CRST and her co-driver Vegtel in 2014 when the company fired her after she reported that Vegtel took off his clothes and approached Anderson’s bed in the middle of the night in a hotel room CRST forced them to share during a haul from the East Coast to California.
Moreover, Anderson said, Vegtel had driven during that three-week trip with his pants undone, claiming he was “too big” to zip them up; told her that he had a painful erection that was so strong he “didn’t know what to do;” and said that he had gotten into trouble during a pornography shoot for staring at a porn star’s breasts.
CRST has a policy of placing two drivers on one truck, and having them take turns driving and sleeping. When Anderson and Vegtel rented a hotel room after their truck broke down in Pennsylvania, Anderson asked CRST for separate rooms, but it refused to reimburse her for them.
In April 2015, U.S. District Judge Dale Fischer said CRST could not be held liable for Vegtel’s harassment because it had taken remedial action on Anderson’s complaint.
But the appellate panel didn’t see it that way, finding that Anderson had shown that she felt her work environment was hostile, and that most women would have perceived it as hostile.
“Indeed, such a perception could have been exacerbated by the fact that truck co-drivers spend significant amounts of time in close proximity with one another, and by the fact that this conduct occurred in a compressed timeframe, over the course of three weeks,” the court added.
It also found that Anderson had shown that CRST had failed to take steps to ensure that Anderson felt safe at work.
Though CRST separated Anderson and Vegtel after they returned to California, the court said Anderson had shown that the company never investigated her complaint. Despite flagging Vegtel internally so that he could no longer be paired with female drivers, it told neither Vegtel nor Anderson that it had done so.
Moreover, the court added, Anderson had shown that CRST failed to assign her a new co-driver or schedule her for any trips after she returned to California, effectively firing her.
CRST maintained that it had attempted to reassign Anderson by sending her an email with a list of female drivers. Anderson countered that the email contained no explanation of what the list was for, and CRST’s attorney Christopher Eckhart admitted at a January hearing that the email was so vague that it was unclear whether the drivers on the list were even women.
“We have held that an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position,” the court said Friday.
The court made a similar finding on Anderson’s retaliation claim, ruling that CRST had failed to provide a “legitimate, nondiscriminatory” reason why it fired her after she reported Vegtel.
CRST insisted that it fired her for failing to report to work or return her fleet manager’s calls to schedule trips, but Anderson said that the company never gave her any work assignments after she made the report.
Turning to Anderson’s state-law Fair Employment and Housing Act claims, the panel affirmed the district court, because the harassment occurred outside California, where FEHA has no force.
Though the panel bounced the case back to the district court in Los Angeles, Senior U.S. District Judge David Faber, sitting by designation from the Southern District of West Virginia, filed a five-page dissent arguing that Anderson had proved neither a hostile work environment nor that CRST fired her because she reported Vegtel.
Citing the Ninth Circuit’s 2000 decision in Brooks v. City of San Mateo that “an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship,” Faber wrote that the sexual harassment Anderson reported to CRST “could hardly become ‘a permanent feature of the employment relationship’ without the employer’s imprimatur.”
“It is also no answer to suggest that, the frequency of incidents notwithstanding, the severity, the physically threatening or humiliating nature of it, and the level of interference with the alleged victim’s work were so high that a reasonable jury could find the conduct actionable under Title VII,” he wrote.
“All CRST did that could conceivably have contributed to a hostile work environment was to require male-female driving teams to share hotel rooms,” he added. “To conclude that this practice, while ill-advised, alone created a hostile work environment is to assume that every woman is vulnerable and every man is a cad.”
U.S. Circuit Judges Michelle Friedland and Richard Tallman also sat on the panel.
Eckhart is with Scopelitis, Garvin, Light, Hanson & Feary in Indianapolis. Anderson is represented by Brian Van Vleck of Van Vleck, Turner & Zaller in Los Angeles.
Neither attorney returned requests for comment Friday.