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Company May Be Sued Over Harassment by Non-Employee, Federal Judge Says

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Addressing an issue that is unresolved by the U.S. Court of Appeals for the Third Circuit, a federal judge has ruled that a transportation company can be held liable for failing to stop an employee from being repeatedly harassed by a non-employee.

U.S. District Judge Jan DuBois of the Eastern District of Pennsylvania trimmed several claims from the case Hewitt v. BS Transportation, but allowed plaintiff Carl Hewitt to proceed on a sexual discrimination charge stemming from allegations that his employer failed to address reports that a non-employee with whom he had regular contact at work was sexually harassing him.

Hewitt was a freight driver, who transported fuel, and he alleged that he'd been repeatedly harassed by a Sunoco employee.

DuBois noted that, although the Third Circuit has not yet settled the issue, other circuit courts and districts within the Third Circuit have determined that employers can be liable if they know, or should have known, about harassment by a non-employee, but fail to take "immediate and appropriate corrective action."

"Unlike most claims of employment discrimination, plaintiff's claim seeks to hold an employer liable for the harassment of its employee by a non-employee," DuBois said. "At this stage in the litigation, plaintiff's allegations that his supervisor failed to investigate his complaints of sexual harassment by Anthony Perillo or notify Sunoco of his continued complaints are sufficient to withstand a motion to dismiss."

According to DuBois, Hewitt was a freight driver for BS Transportation, and his job responsibilities included loading oil at Sunoco's refinery in Marcus Hook, Pennsylvania, each week. Hewitt alleged that, beginning in 2014, Perillo, a Sunoco employee, began to make sexual advances toward him, including grabbing Hewitt's buttocks, shoving him into the trailer of his freight car, and leaning into Hewitt, while asking, "Do you like that?"

Hewitt contended that he repeatedly asked Perillo to stop, and that Sunoco employees were aware of the conduct. DuBois said that, in August 2016, Hewitt's supervisor, Bruce Schunke, who also owned BS Transportation, told Hewitt he had spoken with Perillo's supervisor and that he would handle the issue. He also asked Hewitt not to say any more about the allegations. However, according to Hewitt, neither supervisor investigated the complaints, and, although there was a roughly month-long pause in the alleged harassment, the conduct eventually continued.

In February, Hewitt sued BS Transportation, Schunke, Sunoco, Perillo and Perillo's supervisor. DuBois said in a footnote that Hewitt did not properly serve Perillo, so Perillo was dismissed. Hewitt raised claims of sex discrimination and retaliation, as well as discrimination based on race, color and national origin, and a claim of aiding and abetting.

DuBois dismissed much of Hewitt's case, finding, among other things, that Sunoco could not be liable for alleged aiding and abetting because that claim is typically limited to supervisory employees, and said Hewitt failed to exhaust the administrative remedies for his retaliation claims. The court, however, allowed the hostile work environment claim against BS Transportation, and the aiding and abetting claim against Schunke.

BS Transportation also challenged the harassment claim by contending that the company did not meet the definition of an employer under Title VII, because it employs fewer than 15 people. DuBois said that issue would best be decided at the summary judgment phase.

BS Transportation's attorney, Harold Goldner of Kraut Harris, said Hewitt's case raised unusual claims that differ from situations where a customer is regularly harassing an employee. But regardless of those issues, Goldner said he expects the Title VII claims will be dismissed due to the employer question.

"Discovery will show the company is not an employer, so ultimately it will head to state court," he said, noting that, with the Title VII claims dismissed, the only remaining harassment claims had been brought under the Pennsylvania Human Relations Act.

Neither Hewitt's attorney, Samuel Wilson of Derek Smith Law Group, nor Daniel Johns of Ballard Spahr, who represented Sunoco, returned a call for comment.