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Sellars v. Crst Expedited, Inc.

United States District Court, N.D. Iowa, Cedar Rapids Division

March 30, 2017

CATHY SELLARS, on behalf of herself and all others similarly situated, et al., Plaintiffs,
v.
CRST EXPEDITED, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         II. BACKGROUND ............................................................................. 3

         A. CRST's Business .................................................................... 3

         B. CRST's Handling of Sexual Harassment and Related Complaints ........................................................................... 5

         C. Plaintiffs' Allegations .............................................................. 7

         1. Corroboration of Complaints ............................................. 8

         2. Failure to Impose Discipline Where Harassment is Corroborated .............................................................. 10

         3. Tolerating DMs' Failure to Act Promptly on Harassment Complaints ................................................. 12

         4. “Unpaid Suspension” ................................................... 15

         5. Transit and Lodging Costs .............................................. 16

         6. Extension of Student Driver Training ................................ 17

         III. DISCUSSION .............................................................................. 18

         A. Evidentiary Issues ................................................................ 18

         B. Class Certification ................................................................ 22

         1. Applicable Law ........................................................... 22

         2. Rule 23(a) Requirements ................................................ 23

         a. Numerosity ........................................................ 23

         b. Commonality ...................................................... 27

         i. Corroboration of Complaints .......................... 31

         ii. Failure to Impose Discipline ........................... 32

         iii. Failure to Discipline DMs .............................. 34

         iv. Unpaid Suspension ...................................... 36

         v. Transit and Lodging Costs ............................. 37

         vi. Extension of Student Training ........................ 38

         c. Typicality .......................................................... 39

         d. Adequacy of Representation ................................... 41

         3. Rule 23(b) Requirements ................................................ 42

         a. Rule 23(b)(3) ...................................................... 43

         i. Predominance ............................................ 43

         ii. Superiority ................................................ 48

         b. Rule 23(b)(2) ...................................................... 49

         4. Rule 23(c)(4) .............................................................. 50

         5. Rules Enabling Act ...................................................... 52

         6. Article III Standing ...................................................... 53

         IV. CONCLUSION ............................................................................ 54

         I. INTRODUCTION

         This case is before me on plaintiffs' motion (Doc. No. 35) for class certification. Defendant has filed a resistance (Doc. No. 55) and plaintiffs have filed a reply (Doc. No. 65). Neither side has requested a hearing and, in any event, I find that a hearing is not necessary. See N.D. Ia. L.R. 7(c).

         II. BACKGROUND

         Plaintiffs are female truck drivers and assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA) against their employer, CRST Expedited, Inc. (CRST). In 2014, Cathy Sellars (Sellars), Claudia Lopez (Lopez) and Leslie Fortune (Fortune) each filed a charge of discrimination against CRST with the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing. They were provided notices of right to sue from each organization and timely filed this lawsuit on behalf of themselves and others similarly situated. They allege CRST has maintained patterns or practices of discrimination amounting to a hostile work environment and retaliation toward female drivers who report sexual harassment.

         A. CRST's Business

         CRST employs approximately 7, 000 truck drivers. Doc. No. 35-3 at 10. It has more than 3, 500 drivers on the road at any one time. Doc. No. 55-1 at 4. It is the nation's largest team carrier, servicing 48 states and Mexico. Doc. No. 35-2. Women make up approximately 12 to 13 percent of CRST's workforce. Doc. No. 35-4 at 2; Doc. No. 55-1 at 15. CRST assigns two drivers per truck so that one driver may sleep while the other is driving. Doc. No. 35-5 at 1; Doc. No. 55-1 at 4. This allows the truck to continue moving beyond the 14-hour limit per driver. Id. Each truck contains a small sleeper berth with a bunk bed. Doc. No. 35-6 at 1-2; Doc. No. 55-1 at 4.

         CRST has four terminals located in Riverside, California; Oklahoma City, Oklahoma; Carlisle, Pennsylvania; and Cedar Rapids, Iowa. Id. at 2. Drivers begin and end their trips at these terminals. Id. Both the Cedar Rapids and Riverside terminals contain living facilities, including sleeping areas, where drivers may stay until their next assignment. Doc. No. 35-3 at 21.

         All driving teams are supervised by a driver manager (DM). Doc. No. 55-1 at 6. All DMs are based in Cedar Rapids and communicate with drivers via phone, email and Qualcomm messaging.[1] Id. DMs are responsible for ensuring that loads are delivered on time and are evaluated on various metrics such as time percentage, overall mileage and truck utilization. Doc. No. 35-3 at 31; Doc. No. 35-12 at 2. They are also responsible for driver retention and addressing conflicts amongst team drivers. Doc. No. 35-3 at 31. Their performance on these metrics determines their eligibility for a bonus and can also lead to the termination of their employment. Doc. No. 35-12 at 2. DMs are trained annually on Title VII issues and are instructed to separate drivers upon a complaint of sexual harassment. Doc. No. 35-3 at 54-55. DMs must then report the complaint to human resources (HR). Id. at 57, CRST provides a training program for new truck drivers consisting of classroom instruction, road testing and a 28-day over-the-road training period with a lead driver. Doc. No. 35-3 at 40-42. Student drivers are required to sign a contract providing they will continue working for CRST for a specified period of time after their training to “pay back” CRST for the value of their training. Id. at 41. Lead drivers accompany student drivers on the 28-day over-the-road testing and are responsible for evaluating the student on approximately 20 different skills and completing paperwork that assesses the student's performance. Id. at 47. The lead driver then makes a recommendation as to whether the student should pass his or her training. Id. The DM makes the ultimate decision on whether or not to pass the student based on this information. Id. at 47-48.

         There are approximately 25 female lead drivers out of about 500 at any given time. Doc. No. 35-19 at 1-2; Doc. No. 55-1 at 15 (identifying 23 female lead drivers as of August 31, 2016). In August 2016, CRST had 54 females out of 617 total student drivers. Doc. No. 55-1 at 15. The only eligibility requirements to become a lead driver are six months recent over-the-road experience, acceptable winter driving experience and ten other specific requirements relating to driving and logging performance. Doc. No. 35-18. Lead drivers must also complete a certification class, which includes specific training on CRST's policy prohibiting sexual harassment in the workplace. Doc. No. 55-1 at 10. Lead drivers are paid a higher split mileage rate. Doc. No. 35-15.

         Once a student passes training, he or she becomes a regular CRST driver. The next task is to find a co-driver. A driver may request a list of potential co-drivers, whom the driver may contact to see if they would like to drive with that individual. Doc. No. 35-3 at 25-26. CRST maintains a gender-neutral policy with respect to its driver teams. Doc. No. 55-1 at 5. However, a driver may request to be paired with only a male or female driver. Doc. No. 25-3 at 26. CRST may also designate certain drivers for male or female co-drivers depending on any past issues. Id. at 28. Drivers are not paid during the period in which they are waiting to find a co-driver. Once a DM approves a pairing, the pair can begin driving and earning pay. Id. at 26-27.

         Drivers are paid per mile. Doc. No. 35-3 at 11. Most drivers have their payroll deposited directly onto ComData cards (similar to debit cards) issued by CRST rather than receiving a check. Doc. No. 35-17 at 7-8. DMs may also advance money onto the card, which will automatically be recouped by deducting the amount from the driver's next paycheck. Id. at 35-36.

         B. CRST's Handling of Sexual Harassment and Related Complaints

         Karen Carlson (Carlson) is CRST's Manager of Employee Relations. As such, she is in charge of investigating complaints of harassment or discrimination. Doc. No. 35-3 at 3. From June 2013 to April 2014, Carlson was solely responsible for investigating employee complaints. By the end of 2015, CRST had hired two employee relations representatives, Cassie Burrill and Megan Knott, to assist Carlson in investigating employee complaints. Id. at 5-7.

         When a driver raises a complaint that falls within the ambit of Title VII, that driver is directed to get off the truck. Id. at 12. As of May or June 2015, he or she is then given HR layover pay while Carlson or one of her team members investigates the complaint. Id. at 12-13. According to Carlson, prior to this policy the complaining driver was removed from the truck but did not receive any HR layover pay or other pay.[2]Id. at 13-14. Aside from the HR layover pay that is now in place, complainants may also receive funds to cover hotel expenses and cab fare. Id. at 17. All harassment complaints, regardless of location, are subject to the same HR policies. Id. at 24.

         CRST's driver employee handbook specifically provides, “The Company prohibits sexual harassment and the harassment of any individual . . . .” Doc. No. 55-1 at 19. The handbook contains a section on the definition of harassment and a section on sexual harassment, which provides specific examples of prohibited conduct. Id. at 19-20. CRST addresses its policy on sexual harassment during driver orientation. Doc. No. 55-1 at 8-9. Drivers watch video presentations and receive business cards with reporting phone numbers. Id. at 9, 62. CRST also displays its sexual harassment policies at all company locations. These postings include the 24-hour ReportLine telephone number. Id. at 12, 71. It also uses newsletters and memoranda to reiterate and reinforce its sexual harassment policies. Id. at 13. Since 2012, CRST has sent all drivers a copy of its sexual harassment policy on a quarterly basis via Qualcomm. Id. In 2015, CRST began sending Qualcomm messages outlining CRST's expectations concerning sexual harassment along with all contact information for reporting sexual harassment. Id. at 49.

         According to Carlson, if a Title VII complaint has been made against a lead driver, HR does not have the authority to stop the lead driver from continuing to drive. Id. at 45. That decision may be made only by the DM, the operations manager, the lead coordinator, the supervisor of safety, the director of company drivers or the director of lease-purchase drivers. Id.

         When a driver has a complaint, he or she may call the HR Service Center line, which is a general HR line, or a hotline number that is available 24 hours a day, seven days a week. The hotline, which is operated by a third-party vendor, permits the complainant to speak to a person who will take notes about the situation and forward those notes electronically to Carlson or one of her team members. Id.

         C. Plaintiffs' Allegations

         Plaintiffs allege CRST has maintained various policies, patterns or practices that create or contribute to a hostile work environment for its female drivers. Plaintiffs allege that these policies are “centrally devised and have been commonly applied for years to all drivers.” Doc. No. 35-1 at 14. These policies allegedly include:

. Refusing to find harassment can be corroborated despite evidence beyond “he said/she said” accounts
. Failing to impose discipline even when harassment is corroborated
. Tolerating DMs' failure to act promptly on harassment complaints

         They also allege CRST maintains policies, patterns or practices of discriminating and retaliating against women who complain of sexual harassment. These policies include:

. Subjecting women who complain of sexual harassment to “unpaid suspension”
. Imposing transit and lodging costs incurred as a result of their complaint
. Extending their student driver training

         I will discuss the evidence plaintiffs have put forth in support of each of the identified policies in their attempt to show they have met the class certification requirements of Federal Rule of Civil Procedure 23(a).

         1. Corroboration of Complaints

         Plaintiffs allege that CRST maintains a pattern or practice of failing to find a harassment complaint is corroborated in the absence of an admission by the accused individual or an eyewitness account. This is based on Carlson's deposition testimony as well as anecdotal evidence. Carlson testified as follows:

Q: If the allegations of harassment concerned behavior that occurred on the truck while the drivers are there together, would it ever be possible for you to find that harassment was corroborated based on evidence other than a third person eyewitness who was on the truck seeing harassment?
A: Not unless there was an admission by the accused individual.

Doc. No. 35-3 at 67-68. Plaintiffs allege that under this policy, it is nearly impossible for any woman to prove she was sexually harassed by her co-driver on a truck. Further, plaintiffs allege CRST has had knowledge that its policy is discriminatory based on an email from Carlson dated August 3, 3014. Doc. No. 35-20. In this email, Carlson recommended that cameras be installed on the trucks. Id. She wrote, “So many of my investigations including those such as physical altercations, inappropriate verbal comments, throwing the qualcomm, sexual misconduct, etc. are hearsay and there are no witnesses. I feel that a camera on each truck would mitigate the possibility of misconduct.” Id.

         Plaintiffs provide declarations to demonstrate how this policy has been applied. Veronica Saur's declaration states that a male co-driver made offensive sexual comments to her, including requesting sex and asking to stay together in a hotel. Doc. No. 35-10 at 2. Saur used her phone to record some of the offensive comments. Id. She then called CRST dispatch and reported her co-driver's behavior. Id. Saur also reported her co-driver's behavior to Carlson and offered the recordings as evidence. Id. at 3. Carlson stated she could not consider the recordings because there was no way to verify whether it was her co-driver's voice or someone else's. Id.[3] Saur then complained to the terminal manager of the Riverside Terminal. He also refused to listen to the recordings. Id. Carlson later informed Saur of her finding that “nothing had happened with [Saur's co-driver]” and he was not fired.[4] Id.

         The other example plaintiffs provide is from plaintiff Sellars. Sellars states she reported to Carlson that her new co-driver had shown her and a female co-worker a video of stuffed animals “with a knife . . . the reindeer and bear holding him hostage” and that later, while on the truck, her co-driver told her “the reindeer are going to tie you up and do something to you.” Doc. No. 35-22 at 1. Sellars reportedly called her daughter and told her what her co-driver said. She also sent Qualcomm messages. A DM called her co-driver and he denied anything inappropriate. Id. Sellars stated her co-driver pulled out a knife, put it on the dash and told her she was not going to get off the truck until he was ready to let her out. Id. A DM called her back and Sellars told him about the knife. Id. at 2. When her co-driver stopped, she got out of the truck and was able to stay at a hotel at that location. Id. Carlson interviewed the co-driver about this incident. Doc. No. 35-23 at 1. He admitted he had a utility knife on the truck, but stated that he kept it in the door of the truck. Id. at 3. He also admitted showing the video, but stated that Sellars made a comment that she could tie herself up. Id. He claimed Sellars did not have a problem until she realized their truck was headed for New Mexico rather than Oklahoma City. Id. at 3-4. Carlson also interviewed the female co-worker, who stated that she was aware the co-driver had a knife and corroborated the allegation that he had shown them a video depicting him tied up and acting like stuffed animals were holding a knife that was shown in the video. Doc. No. 35-24. Carlson made the following conclusions:

. The co-driver admitted he had a utility knife on the truck but size could not be corroborated.
. The co-driver admitted to a video he posted on Facebook that showed him tied up as if a hostage by stuffed animals.
. This appears to be a he-said/she-said situation. Corroboration of wrongdoing could not be made.
. Drivers instructed not to contact one another via phone, text, email, in person or by other means.
. The co-driver was instructed to be mindful of the material on his phone and not to share inappropriate photos or videos to co-workers.

Id. Plaintiffs argue this should not have been deemed a “he-said/she-said” situation, given the “overwhelming corroborating evidence.” Doc. No. 35-1 at 17. Therefore, they argue CRST's policy of failing to find that complaints of sexual harassment can be corroborated absent an admission or eyewitness is discriminatory and creates a hostile work environment.

         2. Failure to Impose Discipline Where Harassment is Corroborated

         With regard to its disciplinary practices, plaintiffs allege CRST fails to discipline harassing drivers even when their harassing behavior has been corroborated. They note CRST's standard response to complaints of sexual harassment is to designate the accused driver as “male only” or “no females, ” meaning the accused male driver may drive only with other males. Doc. No. 35-3 at 79. Plaintiffs allege this designation is not disciplinary as it does not reduce a driver's pay, is not considered to be a disciplinary warning, and is used in instances even when the harassment could not be corroborated. Id. at 80-81. Indeed, a driver could request from the beginning to be paired only with male or female drivers. Id. at 79.

         When harassment is corroborated, HR makes a recommendation as to what should be done and the driver's DM has authority to decide what discipline, if any, should be imposed, subject to approval by the supervising Operations Manager. Id. at 74-75. Carlson testified that “any corroborated harassment . . . of a Title VII nature” “will result in termination.” Id. at 73. Carlson is responsible for evaluating the situation and determining whether the harassment constitutes a Title VII violation justifying termination. Id. at 77.

         Plaintiffs provide anecdotal evidence of CRST's failure to impose discipline. On one occasion, a lead driver was alleged to have made inappropriate jokes of a sexual nature to a male friend on the phone and made vulgar and harassing remarks to a student who was on the lead driver's truck. Doc. No. 35-29. This was corroborated by one of CRST's employee relations representatives. The lead driver coordinator recommended pulling the driver's lead certification and HR recommended designating him male only. Id. The offending driver was not discharged and was permitted to finish training another (male) student who was on his truck during the investigation. Id.

         In another instance, HR “[c]orroborated that [a] Lead . . . did talk about sex with his girlfriend and friends” while his student was on the truck and his lead certification also was not revoked. Doc. No 35-32. His team preference was changed to male only and he was put through Positive Work Environment (PWE) training again. Id. Plaintiffs also give an example in which a lead admitted to having “pornographic books and magazines laying around the truck” and listening to “uncensored radio . . . which talked about penis, breasts, sex . . .” while training a student. Doc. No. 35-33. Carlson interviewed the driver, who admitted he had uncensored radio and pornographic magazines but stated his magazines did not have pictures. Id. He stated the student he was currently with was his last and then he had a co-driver lined up. Id. He was put through PWE training again and his preference was changed to male only. Id.

         Plaintiffs allege these disciplinary issues apply to regular drivers as well, not just leads. In one case, a driver sent Carlson a text message she had received from another driver saying, “lets chill, I'm gonna be honest, I want to eat that. If you know what I'm talking about. Just between me and you.” Doc. No. 35-30. The driver who sent the offensive message then attempted to give a fake identity, but later admitted to doing that because he “felt [she'd] like to tell someone.” Id. When Carlson interviewed the driver who sent the message, he admitted to sending it but stated that the female driver had come on to him and had given him her number. Doc. No. 35-31. His team preference was changed to male only and he was advised that another similar allegation could be grounds for termination. Id. Based on this evidence, plaintiffs argue that CRST's policy of failing to discipline drivers for corroborated allegations of sexual harassment is discriminatory and creates a hostile work environment.

         3. Tolerating DMs' Failure to Act Promptly on ...


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