Suit Brings Porta Potties, Topless Photos Together

(CN) - A portable toilet deliverer cannot avert a driver's sexual harassment suit by claiming that she brought topless photographs of herself to work, a federal judge ruled.

Deanna Nelson sued her former employer, Allan's Waste Water Service (AWWS), and fellow truck driver and toilet cleaner Jeff Hillberry in the Western District of Pennsylvania, alleging that Hillberry sexually harassed her at work.

Nelson claims that she informed various AWWS managers about Hilberry's alleged unwanted touching and vulgar language in September 2009. She added these managers, including owners Robert Allan Shipman and Carolyn Stevenson Shipman, as defendants to the suit in June 2012.

Nelson filed a charge with the Equal Employment Opportunity Commission and refused to return to work on Feb. 24, 2010, after the managers failed to stop the harassment, according to the complaint.

The defendants moved for summary judgment supported by a concise statement of material facts that said Nelson had initiated sexual conduct by showing co-workers topless photographs of herself and others, sending sexually explicit text messages, and making suggestive comments to male coworkers.

Nelson admitted that she had shown co-workers a photo of a topless participant of a "wet T-shirt contest" at the Mountainfest motorcycle rally, but she denied showing inappropriate photos of herself or initiating sexual behavior at work. She also agreed that AWWS had complied with its corporate formalities at all times.

In her responsive statement, Nelson also added 32 additional facts, including that she reported the alleged harassment to lead truck driver Jerry Galloway and supervisor Keith McClure, as well as the Shipmans.

The defendants did not respond, and U.S. District Judge Terrence McVerry refused to grant them summary judgment last week, finding that a trial is necessary to decide whether the alleged conduct of Nelson's co-workers was "unwelcome" and forced her to quit.

"Despite admitting to some voluntary actions, plaintiff claims that she did not consent to severe physical groping and repeated lewd remarks," McVerry wrote.

The judge later added: "Indeed, on plaintiff's last day at AWWS, defendant Hillberry stated: 'See, nothing happens to me. I can do what I want and get away with it. I'm not going to be the one losing my job.' Defendants argue that plaintiff did not suffer constructive discharge because her resignation was not a fitting response to the circumstances. Only a finder of fact may determine whether plaintiff's working conditions were so unendurable that she was forced to leave the job."

Nelson can also try to pierce corporate veil based on evidence that AWWS allegedly sold its assets and ceased operations pursuant to a criminal plea agreement with the state, the proceeds of which went to the Shipmans.

Last year, Robert Shipman was given probation and ordered to pay $100,000 in fines, plus $257,316 in restitution and $25,000 in environmental donations, after pleading guilty to 13 counts related to illegal wastewater dumping.

The grand jury found that Shipman earned up to $7 million a year.

"Plaintiff effectively reasons that '[e]quity does not permit a result where the AWWS and the Shipmans can commit crimes, receive proceeds of nearly $1 million from the sale of their company, and hold up an empty shell as the only employer against whom plaintiff can recover,'" McVerry wrote. "Defendants have failed to disprove veil piercing as a matter of law."

Nelson and the defendants must file their pretrial narrative statements by Aug. 22 and Sept. 5, respectively, and a pretrial conference is scheduled for Sept. 12, according to the ruling.

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