Medina v. Botello
| Decision Date | 30 March 2022 |
| Docket Number | 4:20-CV-4114-LLP |
| Citation | 595 F.Supp.3d 838 |
| Parties | Aleah MEDINA, Plaintiff, v. Victor BOTELLO and MasTec North America, Inc., Defendants. |
| Court | U.S. District Court — District of South Dakota |
Scott A. Abdallah, Sara E. Show, Shannon R. Falon, Johnson, Janklow, Abdallah & Reiter, LLP, Sioux Falls, SD, for Plaintiff.
Melanie L. Carpenter, Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, SD, for Defendants.
Pending before the Court is Defendant. MasTec North America, Inc.’s ("MasTec"), Motion for Summary Judgment. (Doc. 14). For the following reasons, MasTec's Motion for Summary Judgment is granted.
Victor Botello ("Botello") was hired by MasTec North America, Inc. ("MasTec") on June 15, 2020, as an unskilled laborer. (Docs. 15, ¶ 1; 21, ¶ 1; 20, ¶ 17; 24, ¶ 17). Botello's duties included digging holes with a shovel, looking for lines, feeding cable into the cable plow and other tasks that did not involve motorized equipment. (Docs. 20, ¶ 5; 24, ¶ 5; 19-5, Martin Dep. 32:13-33:18).
MasTec places construction crews on location all over the United States for an average time of five to six months and up to two years. (Docs. 20, ¶ 1; 24, ¶ 1). As part of the employment agreement, MasTec typically paid for transportation costs for employees on location to the job site and for occasional travel back to their hometowns. (Docs. 20, ¶ 2; 24, ¶ 2). MasTec provided its employees a per diem to live within the state. (Docs. 20, ¶ 3; 24, ¶ 3). Employees could live where they chose, but were given the option to live together in trailers owned by other MasTec employees. (Docs. 20, ¶ 19; 24, ¶ 19; 19-5, Martin Dep. 34:12-17; 19-4, Zurn Dep. 17:7-19).
Ivan Martin ("Martin"), the Operations Manager for MasTec, initially extended an oral offer of employment to Botello pending a background investigation. (Docs. 20, ¶¶ 6, 8; 24, ¶¶ 6, 8; 19-5, Martin Dep. 25:1-26:7). MasTec's human resources department conducts it background investigations and gives a pass or fail based upon the background check. (Docs. 20, ¶ 7; 24, ¶ 7). Martin admitted that he does not actually see or review the background investigation reports and that Human Resources only gives him information about a pass or fail. (Docs. 20, ¶ 9; 24, ¶ 9) (Docs. 17-4, Martin Dep. 9:17-10:11; 19-5, Martin Dep. 9:17-10:11). Before MasTec hired him, Botello had been convicted of theft involving three motor vehicles and driving under the influence. (Docs. 20, ¶ 10; 24, ¶ 10). The background report obtained by MasTec indicated that Botello had two felony convictions for theft of property that occurred on or around June 2015, but failed to indicate that the convictions were for theft of motor vehicles, and another misdemeanor conviction for driving under the influence ("DUI") in June 2019. (Docs. 20, ¶ 11; 24, ¶ 11; 19-5, Martin Dep. 28:1-31:8; 19-6). Martin never saw or reviewed the background report and therefore did not know about or inquire further into these convictions before hiring Botello. (Docs. 20, ¶ 12; 24, ¶ 12; Martin Dep. 19-5, 28:1-31:8).
MasTec flew Botello to South Dakota from Texas, his state of residence. (Docs. 20, ¶¶ 17-18; 24, ¶¶ 17-18). Botello lived in a trailer owned by another MasTec employee in Nebraska near the work site which was located near Yankton, South Dakota. (Docs. 20, ¶¶ 22-23; 24, ¶¶ 22-23; 15, ¶ 15; 21, ¶ 15)). Botello reported for work in South Dakota on June 19, 2020. (Docs. 20, ¶ 18; 24, ¶ 18).
At the time he was hired to work at MasTec, and for the duration of his employment with MasTec, Botello did not have a driver's license and indicated on his employment application to MasTec that he was unlicensed. (Docs. 15, ¶ 2; 21; ¶ 2; 17-1, Botello Dep. 7:23-6:8:3). MasTec has a policy requiring employees who operate a company vehicle to be properly licensed. (Docs. 15, ¶ 4; ¶ 21, 4). MasTec also has a policy prohibiting authorized employees to allow an unauthorized individual to operate a company vehicle, with no exceptions. (Docs. 15, ¶ 14; 21, ¶ 14). Botello was solely hired as a laborer for MasTec, not as a driver, and was never assigned any driving duties throughout the course of his employment with MasTec. (Docs. 15, ¶¶ 5, 9; 21, ¶¶ 5, 9).
As part of his training, Botello was required to complete a test on the content of the company handbook, although Botello testified that he was never given a handbook and was only required to complete the test on the computer. (Docs. 15, ¶ 6; 21, ¶ 6). Botello also completed twenty-five safety courses, including a course titled "Safety Does Not Take a Holiday July 4th." (Docs. 15, ¶ 7; 21; ¶ 7). MasTec has a "no drive" list which is updated approximately once a week and is communicated to supervisors. (Docs. 15, ¶ 8; 21, ¶ 8). Plaintiff disputes whether the "no drive" list was also communicated to employees. (Docs. 15, ¶ 8; 21, ¶ 8). Botello was on the "no drive’ list for the entire duration of his employment. (Docs. 15, ¶ 9; 21, ¶ 9).
Botello's direct supervisor was Brad Zurn ("Zurn"). (Docs. 15, ¶ 10; 21, ¶ 10). Above Zurn in the chain of command was Steven Kuschel ("Kuschel"). (Docs. 15, ¶ 11, 21, ¶ 12). Above Kuschel in the chain of command was Ivan Martin ("Martin"). (Docs. 15, ¶ 12; 21, ¶ 12). Prior to the accident, Zurn and Kuschel both testified that they did not know about Botello's prior convictions. (Docs. 20, ¶¶ 14-15; 24, ¶¶ 14-15; 19-2, Kuschel Dep. 33:8-24; 19-4, Zurn Dep. 22:4-10). One time when Botello was off duty, he walked two miles to Kuschel's trailer in Nebraska and showed up intoxicated. (Docs. 20, ¶¶ 40, 48; 24, ¶¶ 40, 48; 19-2, Kuschel Dep. 55:23-56:24).
Botello remained around Yankton for the holiday weekend surrounding July 4, 2020. (Docs. 15, ¶ 16; 21, ¶ 16). MasTec paid for most employees’ travel home for the holiday weekend either by vehicle or by plane. (Docs. 20, ¶ 26; 24, ¶ 26). MasTec did not fly Botello home for the holiday weekend because he just began work for the company weeks before. (Docs. 15, ¶ 16; 21, ¶ 16; 20, ¶ 27; 24, ¶ 27).
Prior to the holiday weekend, Zurn instructed MasTec employees to take Botello to the store so he could buy groceries for the weekend. (Doc. 15, ¶ 17; 21, ¶ 17). Aaron Dombkowski ("Sticks") took Botello to Walmart to buy food, but Botello testified that he had only $20 and bought a couple cans of soup. (Docs. 15, ¶ 18; 21, ¶ 18; 17-1, Botello Dep. 15:25-16:7). Kuschel told Botello that if he had to take a taxi somewhere over the holiday weekend, he would "make it right." (Docs. 15, ¶ 19; 21, ¶ 19).
Prior to the holiday weekend, company employees testified that Zurn instructed MasTec employees, including Sticks, Jesus Juan Rincon ("Danny"), and Phillip Fuller ("Phil"), to either lock their vehicles up or lock the keys to the vehicles up. (Docs. 15, ¶ 21; 21, ¶ 21). Kuschel testified that on the last day of work before the holiday that he gathered everyone together and told them "you all need to take your keys out of the vehicle and lock them up for the long holiday." (Docs. 15, ¶ 23; 21, ¶ 23; 19-2, Kuschel Dep. 36:21-37:14; 17-3, Kuschel Dep. 37:4-14). Kuschel also routinely instructs employees to secure their vehicles at the end of a workday. (Docs. 15, ¶ 22; 21, ¶ 22).
Botello testified that Phil, Sticks, and Danny all told him that they would leave their keys in their car "just in case [Botello] need[s] to use the truck ... just to buy groceries and nothing else." (Docs. 17-1, Botello Dep. 13:13-15:21; 20, ¶ 41; 24, ¶ 41). Botello also testified that these employees told Botello that when his paycheck comes, he could "use a truck to buy groceries, or whatever [he is] going to do. and come back." (Doc. 19-1, Botello Dep. 43:11-17). Botello testified that all of the guys told him that if something wrong happens, it is going to be Botello's fault and that they were going to deny everything because they "don't want to get in trouble with the boss, Steve." (Docs. 17-1, Botello Dep. 15:17-21, 41:21-42:9; 19-1, Botello Dep. 43:17-19). Botello did not work on July 3, 2020, or July 4, 2020. (Docs. 15, ¶ 24; 21, ¶ 24). Botello testified that he waited until he was paid on Friday, July 3, 2020, and then took Danny's vehicle to the store around 10 a.m. to buy some groceries. (Doc. 17-1, Botello Dep. 16:5-24). Botello testified that Danny's vehicle was unlocked and that the keys were in the cup holder. (Doc. 17-1, Botello Dep. 16:25-17:20).
After returning from the grocery store, Botello spent the remainder of the day on the beach where he met some people who were not employees of MasTec who invited him out to a bar that evening. (Doc. 17-1, Botello Dep. 18:18-20:21). Botello's new acquaintances did not have enough room in their vehicle to accommodate Botello so he found Danny's keys in the cupholder of the unlocked truck and drove Danny's truck to the bar. (Doc. 17-1, Botello Dep. 19:25-20:25).
Botello had never previously driven a company vehicle before July 3, 2020. (Docs. 15, ¶ 27; 21, ¶ 27). Botello testified in his deposition various times that he knew he was not authorized to drive a MasTec vehicle (Doc. 17-1, Botello Dep. 11:16-25, 15:13-15, 29:3-6, 29:16-18, 30:13-15, 32:9-11), but that Phil, Sticks, and Danny had given him permission to use their vehicles while they were gone over the holiday weekend (Doc. 17-1, Botello Dep. 37:1-6). There is no evidence in the record that unauthorized and unlicensed drivers had previously driven MasTec vehicles and both Kuschel and Zurn testified that they had not been aware of situations in the past where MasTec employees had left their keys in their vehicles. (Docs. 19-2, Kuschel Dep. 39:4-7; 19-4, Zurn Dep. 28:22-25).
Botello was at the bar for approximately two or three hours where he consumed five or size 12 oz. bottles of Bud Light. (Docs. 15, ¶ 29; 21, ¶ 29). Botello realized he started "getting drunk" and ate some chicken strips at the bar so that he would not "blackout."...
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