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Simms v. Trimac Transp. East

June 8, 2009

KIMBERLY SIMMS
v.
TRIMAC TRANSP. EAST, INC.



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

Plaintiff Kimberly Simms sues her former employer, Trimac Transportation East, Inc. ("Trimac"), for employment discrimination under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.*fn1 Specifically, Simms asserts claims for retaliation and disparate treatment discrimination based on sex.

Trimac has moved for summary judgment, Simms responded to that motion, and Trimac replied. Trimac contends that Simms cannot establish a prima facie case for either of her claims and that it had a legitimate, nondiscriminatory reason for seeking her resignation -- namely, her improper acceptance of a loan from an independent contractor with whom she worked. Simms argues that Trimac's reason is pretextual and that it fired her in retaliation for her complaint of sexual harassment by the same independent contractor and discriminated against her by treating her differently from male employees.

For the reasons we discuss in detail below, we will grant Trimac's motion and dismiss Simms's claims.

I. Factual Background

Our analysis of Simms's claims is necessarily fact intensive, so we will first canvass the record.

A. Introduction to Trimac and Kimberly Simms

Simms began to work for Trimac, a trucking company, in 2000, and had the title of "traffic supervisor" during her seven years there. Kimberly Simms Dep., Pl.'s Ex. A ("Simms Dep.") at 40-41, 43. She worked at the Croydon branch, which is in the Philadelphia area and within Trimac's Eastern Division, or "Trimac Transportation East." See Kimberly Simms Performance Appraisal, Def.'s Ex. 9 ("Performance Appraisal") at 1. At that branch, Trimac employs drivers who are both employees and independent contractors. Chris Gallowitz Dep., Pl's Ex. D ("Gallowitz Dep.") at 43. Independent contractors sign a lease agreement that prohibits them from driving for other companies during their lease's term with Trimac. Id. at 44. Traffic supervisors inform the branch manager when the independent contractors do something wrong, and the branch manager then addresses the problem. Id. at 45-46. Adnan Javied, who played a key role in the events leading up to this case, was an independent contractor driver. See id. at 61.

Notwithstanding that Simms's title of "traffic supervisor" never changed, her job responsibilities did. At first, she was a night dispatcher and "would oversee the drivers coming in to pick up paperwork and going out, contact any drivers that were late, [and] maintain communication with the drivers to ensure on time delivery." Simms Dep. at 43. As a traffic supervisor, Simms told Javied and other drivers where they would be dispatched, and she does not remember Javied objecting to any particular route. Id. at 55. Over time, Simms's responsibilities expanded to include such things as creating the customer service report, assisting with recruiting and bidding for new business, driver training and retention, and organizing safety meetings.

Id. at 52-54. Simms "did billing," "handled payroll," and could change the drivers' assigned routes and schedules on her own without anyone's approval. Id. at 43, 47-48. Simms assigned drivers to specific routes*fn2 herself when Jim Kinnevy, who Simms described as the "lead dispatcher,"*fn3 was out of the office. Id. at 43-47; Gallowitz Dep. at 62. When Kinnevy was out, Simms also ensured that drivers completed all of the customers' deliveries and complied with government requirements regarding how many hours they could drive and how often they took breaks to rest. Simms Dep. at 45. She took on Kinnevy's responsibilities for about two to three weeks each year and also when he "was out on disability" for several weeks. Id. at 46.

In trying to retain independent contractor drivers --one of her regular duties -- Simms would "[c]counsel drivers" and "assist [them] in finding resolutions to problems and concerns" (for example, with payroll or complaints about route assignments). Id. at 54. In August of 2007, Simms personally signed Javied's renewed contract with Trimac. See Lease Agreement Between Adnan Javied and Trimac Transportation East, Inc., Def.'s Ex. 10 ("Lease Agreement") at 17, 18, 21.

B. Trimac Management

Simms does not know if Kinnevy was technically her supervisor, but she identified the four successive Croydon branch managers as such. Simms Dep. at 51-52. Chuck Gaines was the branch manager at the time that Simms's employment ended, and Simms says that she "g[o]t along with" Gaines. Gallowitz Dep. at 6; Performance Appraisal at 1; Simms Dep. at 51-52, 212. Chris Gallowitz, the region manager who oversaw the Croydon branch and other locations, has his office at the Croydon branch.*fn4 Gallowitz Dep. at 6. Gallowitz works for Bill Marchbank, Vice-President of Trimac's Eastern Division for the United States, who in turn reports to Tom Connard, the President of Trimac U.S. See Trimac Eastern Division Organizational Chart, Pl.'s Ex. E; Bill Marchbank Dep., Pl.'s Ex. B ("Marchbank Dep.") at 5, 11. Gina Pomilla started at Trimac as the "U.S. HR Manager" and held that position at the time of Simms's resignation, but at the time of her deposition in December of 2008, her title was Director of Human Resources and Retention. Gina Pomilla Dep., Pl.'s Ex. G ("Pomilla Dep.") at 6-7.

C. Simms's Employment Record

By all accounts, Simms appeared to be an exemplary employee. On August 30, 2007, Gallowitz sent her a performance appraisal for the prior eight months. Gallowitz Dep. at 52-53. In that evaluation, Gaines, Simms's direct supervisor, wrote that her "involvement in process, recruitment, and utilization have been [in]strumental in the branch's success." Performance Appraisal at 1. He also stated that Simms's "excellent" participation in a recent leadership training "served to springboard her into line for a promotion to branch management." Id. at 6. Gallowitz wrote that Simms "consistently performs at a high level" and "constantly takes the initiat[i]ve and brings solutions to the table." Id. at 1. According to him, Simms was "ready for the next challenging assignment within Trimac" and was a "tremendous asset." Id. at 1.

The evaluation also included ratings of Simms's success with various "key responsibilities" and indicia of "general performance." Id. at 2, 5. She received positive ratings on every point. See id. Simms herself wrote that she wanted "[t]o take [her] career to the next level in an effort to obtain personal and professional satisfaction." Id. at 6. When Gallowitz reviewed the appraisal with Simms, he told her that she was doing a good job and to "keep it up." Simms Dep. at 210.

D. Trimac's Policies

During her employment at Trimac, Simms knew that the company had a Conflict of Interest Policy, but she does not remember when she first learned about it or exactly what it said. Simms Dep. at 58. Simms had access to the Employee Handbook, which contained the Conflict of Interest Policy, through the company's intranet. She read other parts of that document while she worked at Trimac, but she read the Conflict of Interest Policy "in detail" for the first time in September of 2007, after her employment with Trimac ended. Id. at 55-56, 63. She remembers that the policy had some bearing on family members working together, but does not recall whether it said anything about accepting gifts. Id. at 59.

But Trimac's Conflict of Interest Policy is quite broad. It provides that "if employees have any influence on transactions involving purchases, contracts, or leases, it is imperative that they disclose to their immediate supervisor or a member of Trimac's management as soon as possible the existence of any actual or potential conflict of interest so that safeguards can be established to protect all parties." Trimac U.S. Employee Handbook, Pl.'s Ex. I ("Employee Handbook"), Conflicts of Interest, at § 107 ("Conflict of Interest Policy").*fn5 In the handbook, Trimac expresses a preference for using "progressive discipline" to resolve violations of its policies, but also "recognizes that there are certain types of employee problems that are serious enough to justify either a suspension, or, in extreme situations, termination of employment, without going through the usual progressive discipline steps." Employee Handbook at § 711.

Trimac also had a Code of Business Conduct and Ethics, which became effective on July 1, 2007*fn6, and was last revised on August 16, 2007. Pomilla Dep. at 71; Code of Business Conduct and Ethics, Def.'s Ex. 19, at 1 ("Ethics Code"). The company distributed the Ethics Code to employees in August of 2007 via email, and also posted it at the branch offices, but Simms says that she never saw the document and was not aware of it. Pomilla Dep. at 71; Simms Dep. at 67. The Ethics Code instructed employees that they "have a duty to avoid financial or other business relationships that might be adverse to the interests of Trimac, or have the potential for producing or creating the appearance of conflicting loyalties or interest, or interfere with effective job performance." Ethics Code at 2. The document specified that "[g]ifts and entertainment may only be accepted or offered by Trimac Personnel in the normal exchanges common to business relationships" and warned that disciplinary action for violating the Code could include termination of employment. Id. at 2, 4.

While Simms worked at Trimac, she did not think -- and no one told her -- that it would be "inappropriate" to accept gifts or loans from independent contractors, as long as the drivers did not expect to receive anything in return. Simms Dep. at 68-69. In a conversation that Simms had with Pomilla during the internal investigation of these incidents, however, Pomilla told her that "accepting a loan from a driver could be a conflict of interest." Id. at 66. Simms now acknowledges that she knows this was inappropriate "[b]ecause [she is] no longer at Trimac." Id. at 69.

E. Javied's Loan to Simms

Simms met Javied, an independent contractor driver, when the company hired him in 2004, and they became friends around August of 2006. Simms Dep. at 21-22; Gallowitz Dep. at 61; Simms Email to Pomilla, Def.'s Ex. 20, at 1 ("Simms Email to Pomilla"). They spoke on the phone about work issues and Simms's career aspirations, as well as personal concerns such as their families; they "discussed what friends talk about." Simms Dep. at 22. They also sent each other text messages. Id. at 95. Javied repeatedly left chocolates and cigarettes in Simms's car, which she regularly left unlocked in the Trimac parking lot. Id. at 134, 137-38. With other co-workers, Simms and Javied also went to bars together at least six to eight times,*fn7 and he came to her house at least once. See id. at 91-92. There were rumors in the Croydon branch that Simms was having an affair with Javied, but Simms never told Javied that she loved him, and they did not have "any kind of physical relationship." Id. at 95-96, 150.

Simms's husband was in a car accident in the fall of 2006, and they later experienced financial difficulties. Id. at 129-30; Simms Email to Pomilla at 1. They fell behind on their mortgage and also had to buy a new car. Simms Dep. at 129. Simms talked to Javied about the situation, and he said that he would help her buy another vehicle. Id. at 131. She initially rebuffed his repeated offers to help because she "didn't think it was appropriate for him to give a married woman money, and [she] didn't want [her] husband to be upset by it." Id. See also Simms Email to Pomilla at 1. Javied wanted to give her a "gift," but when she would not accept it, he told her to take his money as a loan. Simms Dep. at 133.

When Simms found a check for $2,500 in her car at the end of September or beginning of October of 2006, she discussed it with her husband, and they decided to keep it as a loan.*fn8 Id. at 133, 139; Simms Email to Pomilla at 1. Simms knew that it was from Javied and told him that she would pay him back, but "he told [her] no, this was a gift and he wanted to do this to help [her]." Simms Email to Pomilla at 1. See also Simms Dep. at 136. Simms insisted that she would pay him back and then deposited the check into her account on October 16, 2006. Simms Dep. at 136, 218. At the time, Simms did not think that there was anything wrong with accepting the loan from Javied, and she did not tell anyone at Trimac about it until she spoke with Gaines nearly a year later in August of 2007. Id. at 139-40.

Javied offered Simms more money in the spring of 2007 when she "complain[ed] about summer camp for [her] kids and the cost of it," but she did not accept his help. Id. at 141. The only money that Simms accepted from Javied was the $2,500 check in the fall of 2006. Id. at 141-42. She never repaid the loan she received from Javied because she could not afford to do so, but there is also no evidence that Simms did anything for Javied in exchange for the loan. Simms Dep. at 137; Gallowitz Dep. at 65, 67; Marchbank Dep. at 15.

F. Javied's Advances

At some point, Javied became interested in a romantic relationship with Simms. After a "safety banquet" or Christmas party in December of 2006, Simms went to a bar with several co-workers, including Javied. Simms Email to Pomilla at 1. Simms had spoken with Javied "multiple" times between finding the check in her car and the night of the party. Simms Dep. at 140. Later that evening, while Simms was waiting outside the bar for a cab to take her home, Javied told her that he was in love with her and that she should leave her husband. Id. at 80, 140; Gallowitz Notes of Investigation, Def.'s Ex. 17 ("Gallowitz Notes")*fn9 at 2; Simms Email to Pomilla at 1. She "argued with him for[] a few minutes," and he "grabbed [her] arm and started pulling [her] towards his car" to take her home. Simms Email to Pomilla at 1; Simms Dep. at 143. Simms fended Javied off by pushing and perhaps "attempt[ing] to punch him." Simms Dep. at 143-44. She told him that her family "can take care of [them]selves." Id. at 144. Some people from the bar physically separated them, and Simms then went back inside to wait for her taxi. Simms Email to Pomilla at 1; Simms Dep. at 144-45.

After having "quite a bit to drink," Simms called Javied on the way home from the bar and told him that she "was very angry and very disappointed in him." Simms Dep. at 145-46. She informed her husband about the incident, and he "wanted to kill" Javied. Id. at 147. She also told two co-workers, including Kinnevy, about that night, and she discussed it "briefly" with Gaines at some point prior to August 30, 2007. Id. at 149. In that brief conversation, Simms told Gaines that she and Javied "had a confrontation and that [they] were friends" but that she "was not comfortable with that situation that night." Id. at 150. Simms also told Gaines that she thought "the situation [was] resolved" and that it would not affect her performance. Id.

For a while after the safety banquet, Simms and Javied rarely spoke and only talked about business-related issues. Simms Email to Pomilla at 1. She had a "cordial[]" encounter with him at a friend's birthday party in March of 2007, and then in June Javied called Simms several times and said that he missed their friendship. Simms Dep. at 154-55. When she told him that she "could not give him what he needed," he accused her of having "several guys on [t]he side" and called her "a slut and a whore." Gallowitz Notes at 3; Simms Email to Pomilla at 3. See also Simms Dep. at 155. She asked him to stop calling her and sending messages to her, and Javied did so, but Simms did not report these conversations to Gaines or Gallowitz. Gallowitz Notes at 3; Simms Email to Pomilla at 3; Simms Dep. at 155. Toward the end of July, Javied and Simms had a conversation about a work-related issue, and "he commented on how nice it was to talk to [her]." Simms Email to Pomilla at 3. Simms told him about her ...


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