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Sellars v. CRST Expedited, Inc.

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

January 15, 2019

CATHY SELLARS, on behalf of herself and all others similarly situated, et al., Plaintiffs,


          Leonard T. Strand, Chief Judge.


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

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

         III. ANALYSIS...................................................................................4

         A. Motion for Partial Summary Judgment on Retaliation Claim..................................................................................4

         1. Parties' Arguments.........................................................4

         2. Applicable Law.............................................................5

         3. Undisputed Facts...........................................................7

         a. Defendant's Statement of Facts.................................7

         i. CRST Operations..........................................7

         ii. CRST Written Policies....................................8

         iii. CRST Practices in Responding to Complaints of Sexual Harassment...................10

         b. Plaintiffs' Statement of Additional Facts....................14

         4. Analysis....................................................................21

         a. Adverse Employment Action...................................22

         i. Admissibility of Plaintiffs' Evidence ................. 26

         ii. Is There a Policy, Pattern or Practice? .............. 29

         iii. Does the Alleged Policy, Pattern or Practice Involve an Adverse Employment Action? .................................... 33

         b. Retaliatory Motive ............................................... 35

         B. Motion for Decertification of Hostile Work Environment Class ................................................................................. 42

         1. Parties' Arguments ....................................................... 42

         2. Factual Background ..................................................... 44

         a. Failure to Corroborate Complaints Without an Eyewitness or Admission ................................... 47

         b. Failure to Discipline When Complaints are Corroborated ...................................................... 49

         c. Failing to Discipline DMs Who Do Not Promptly Respond Appropriately to Complaints ........................................................ 50

         3. Applicable Law ........................................................... 53

         4. Analysis .................................................................... 57

         IV. CONCLUSION ............................................................................ 68


         This case is before me on defendant's motion (Doc. No. 171) for partial summary judgment on plaintiffs' retaliation claim and motion (Doc. No. 172) for decertification of the hostile work environment class. Plaintiffs have filed resistances (Doc. Nos. 187, 188)[1] and defendant has filed replies (Doc. Nos. 197, 198). I also allowed plaintiffs to file a sur-reply (Doc. No. 201) as to both motions. I find that oral argument is not necessary. See Local Rule 7(c).


         Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) against their employer, CRST Expedited, Inc. (CRST). On March 30, 2017, I entered an order certifying the following classes:

a. The Hostile Work Environment Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies:
(1) failing to find their complaints were corroborated without an eyewitness or admission,
(2) failing to discipline drivers after complaints were corroborated; and
(3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints.
b. The Retaliation Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to retaliation based on sex as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment.

See Doc. No. 85 at 54-55. I also certified the following issues pursuant to Rule 23(c)(4)(a):

a. As to the Hostile Work Environment Class, whether CRST has any of the following policies, patterns or practices that create or contribute to a hostile work environment:
(1) failing to find their complaints were corroborated without an eyewitness or admission,
(2) failing to discipline drivers after complaints were corroborated and
(3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints and
b. As to the Retaliation Class:
Whether CRST has a policy, pattern or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck except when they are a lead driver or owner-operator

Id. at 55. I noted the order could be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Id. at 56. CRST now seeks summary judgment on the retaliation claim and decertification of the hostile work environment class.

         III. ANALYSIS

         A. Motion for Partial Summary Judgment on Retaliation Claim

         1. Parties' Arguments

         CRST argues that plaintiffs' retaliation claim fails for four reasons:

1. Plaintiffs cannot show that they suffered any materially adverse employment action.
2. Plaintiffs cannot show that their removal from their trucks was motivated by retaliatory animus against them for complaining of sexual harassment.
3. CRST has legitimate, non-retaliatory reasons for its remedial actions.
4. The record lacks any evidence of pretext.

See Doc. No. 171.

         Plaintiffs argue an unpaid suspension or pay cut in response to sexual harassment complaints constitutes a materially adverse employment action. They contend they have direct evidence of retaliatory intent based on CRST's admission that its policy is to remove women who complain about harassment from their trucks and, depending on whether the removal occurred before or after July 2015, to pay them nothing or reduced pay. Plaintiffs also rely on a Human Resources (HR) PowerPoint presentation in which CRST considered whether female drivers were “punished for raising concerns” by having to get off the trucks and lose money while the accused drivers were allowed to stay on and continue earning money. See Doc. No. 191-1 at 22. Alternatively, plaintiffs argue that under the McDonnell-Douglas burden shifting analysis, one could infer a retaliatory motive, for which CRST has no legitimate, non-retaliatory reason for removing women who complain of harassment from the trucks, resulting in a loss of pay. Even if CRST's reasons of safety and prompt investigation could be viewed as legitimate, they argue the evidence demonstrates these reasons are pretextual. They argue CRST's reasons for removing women from the trucks have shifted and that the temporal proximity between plaintiffs' complaints and CRST's actions indicates pretext.

         In reply, CRST argues plaintiffs have not demonstrated a genuine issue of material fact as to a standard operating procedure of retaliation. See Doc. No. 198 at 7-11. Specifically, it argues plaintiffs cannot rely on their summary exhibit because it is inadmissible and unreliable. Id. at 11-14. With regard to retaliatory intent, they argue plaintiffs have not demonstrated a genuine issue of material fact based on either direct or indirect evidence. Id. at 14-23.

         2. Applicable Law

         Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A material fact is one that “‘might affect the outcome of the suit under the governing law.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id.

         An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could return a verdict for the nonmoving party' on the question.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly probative, ” Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.

         As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving for entry of summary judgment bears “the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

         In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

         3. Undisputed Facts

         The following facts are undisputed for purposes of CRST's motion, unless noted otherwise:

         a. Defendant's Statement of Facts

         i. CRST Operations

         CRST operates its transportation company by teaming together two drivers per truck so one driver may sleep while the other is driving. See Doc. Nos. 171-2 and 191-2. This allows the truck to continue moving beyond the daily limits imposed by the Department of Transportation for hours of service for each individual driver. CRST's drivers include individuals who own, or are leasing to own, the vehicles they operate (owner-operators) and other individuals. CRST's training regimen requires student drivers to work alongside experienced drivers (lead drivers) for a designated period of time. Once the student drivers complete their training, they may team up with a co-driver of their choosing.[2]

         All driving teams are supervised by a driver manager (DM). Drivers communicate with DMs over phone, email and CRST's messaging system, known as Qualcomm. DMs are evaluated based on metrics such as time percentage, overall mileage and truck utilization. Plaintiffs point out that expenses (amount spent per mile) and trucks in service are also metrics. Doc. No. 191-2 at ¶ 13. They note that factors such as the number of trucks working, and a bus ticket to relocate a driver from one location to another, count against these metrics. Id. DMs are also responsible for retaining drivers and addressing conflicts between team drivers. When that conflict is a complaint of harassment or discrimination, plaintiffs point out that CRST's human resources (HR) department is also responsible for investigating that complaint. Id. at ¶ 14.

         Drivers are paid per mile using a “split mileage system.” Each driver is paid at his or her personal rate for half of the total miles driven by the truck regardless of the number of miles each driver personally drives. The personal rate depends on the driver's length of experience. A driver may also receive layover pay for the time between when a truck is empty (not under a load) to the dispatched pickup time. This may occur when drivers are away from the terminal or home due to a breakdown or impassable highway conditions. Plaintiffs add that the time period required to receive layover pay is “no less than 48 hours.” Id. at ¶ 19. After 48 hours, each driver of the truck may receive $40 for each subsequent 24-hour period. Id. Layover and breakdown compensation is based on standard daily rates unrelated to a driver's length of experience.

         ii. CRST Written Policies

         CRST has a written policy prohibiting sexual harassment in its workplace. The policy also prohibits unlawful employment discrimination and retaliation. The policy is contained within the handbooks that are distributed to CRST drivers and home office employees, including DMs. CRST emphasizes the policy during a dedicated session at driver orientation, where qualified trainers present the policy and provide drivers with a stand-alone copy. The policy states that CRST “prohibits sexual harassment” and that those who report it “will NOT be subject to ANY form of retaliation.” See Doc. No. 171-2 at ¶ 25. It also sets forth the complaint procedure and outlines reporting responsibilities for personnel. CRST's Code of Business Ethics prohibits harassment based on sex and mandates immediate reporting “to the appropriate Supervisor or the Human Resources Department.” Id. at ¶ 26. The handbook instructs that “[i]f an employee believes he or she is being subjected to verbal or physical harassment, the employee should immediately contact his or her [DM] or [HR] to inform them of the situation and to request a new lead driver.” Id. at ¶ 27. The handbook states: “[a]n employee has the right to request a new driver without fear of retaliation. Any employee who reports any act of harassment and/or discrimination will NOT be subject to ANY form of retaliation.” Id. at ¶ 28.[3]

         All drivers sign an acknowledgement that they have received and reviewed the handbook and statement of policy, including the policy on sexual harassment and retaliation. Drivers are also required to certify their understanding that employees who complain about harassment will be removed from the harassing situation. The acknowledgment states:

I also understand and agree that if I believe I am being subjected to harassment or discrimination, no matter how severe or pervasive, I will immediately report it to my fleet manager or [HR] directly so that I may be removed from the harassing situation and so that CRST may conduct a prompt investigation.

Id. at ¶ 30.

         iii. CRST Practices in Responding to Complaints of Sexual Harassment

         CRST states that its first priority in responding to a complaint of sexual harassment is the safety of the complaining driver. Plaintiffs deny this. When a dispatcher receives a communication from a driver alleging sexual harassment, the dispatcher is required to take immediate steps to ensure the safety of the complainant and advance the investigation. Plaintiffs admit this is CRST's written policy, but deny that CRST's pattern or practice is to take immediate steps to ensure the safety of the complainant or advance the investigation. See Doc. No. 191-2 at ¶ 32. Dispatchers may respond to complaints of sexual harassment by separating the drivers and arranging for necessary accommodations for the complainant (including a hotel stay and transportation) and to pay or reimburse for those accommodations. Plaintiffs state that while dispatchers may have this authority, they do not in fact arrange for accommodations or travel or pay or reimburse these expenses. Id. at ¶ 33.

         CRST states it takes steps to separate drivers quickly and safely. Plaintiffs deny this, stating there are frequent delays in separating drivers, which creates unsafe conditions for women subjected to sexual harassment. Id. at ¶ 34. When one driver makes a complaint against another driver - regardless of the nature of the complaint - DMs are instructed to remove the complainant from the situation unless the complainant is the lead driver or an owner-operator. Plaintiffs admit this to the extent it applies to sexual harassment complaints. Id. at ¶ 35. All employees receive notice of CRST's policy of removing the complaining employee when they join the company. Plaintiffs clarify that this policy concerns only harassment or discrimination complaints. They also add that the policy states only they will be “removed from the harassing situation” and does not state whether they will be removed from their truck. Plaintiffs allege that CRST's policy is to remove women who complain about sexual harassment from their trucks. Id. at ¶ 36.[4]

         CRST sets forth several purported rationales for the separation policy, many of which plaintiffs dispute. First, CRST states that removing the complainant allows her to seek necessary resources, such as law enforcement assistance, medical attention or mental health care. Plaintiffs take issue with the evidence cited in support of this statement and contend this shows that female drivers are forced to rely on police intervention to protect themselves from harassing co-drivers. Id. at ¶ 38. They add that complainants would be equally able to obtain these resources if the harasser was removed from the truck. Id.

         Second, CRST claims the policy gives the complainant the opportunity and resources to gather and transmit necessary information to HR as part of the investigation. Plaintiffs disagree and state that HR gathers whatever information it seeks from the complainant in a single telephone conversation, which could easily take place while the complainant remains on the truck. Plaintiffs also deny that the policy provides the complainant with resources to gather and transmit information to HR because the policy leaves the complainant on unpaid suspension while off the truck, or receiving less compensation than she would have received had she stayed on the truck. Plaintiffs also note that the complainant is often responsible for the transportation and lodging costs once removed from the truck. Id. at ¶ 40.

         Third, CRST states that removing a complainant from the truck better facilitates the investigation by allowing her to have a confidential conversation with HR and giving her the opportunity to gather and submit corroborating evidence. Plaintiffs deny this, stating that a confidential conversation could just as easily take place by removing the accused from the truck. To the extent CRST claims that allowing the complainant to stay on the truck while communicating with HR poses a safety concern, plaintiffs state that a complainant can speak with HR while the truck is not moving. They also point out that HR has conducted investigations and communicated with accused drivers while they remain on the truck. Id. at ¶ 41.

         Fourth, CRST states its policy complies with various licensing and ownership rules. For instance, when the complainant is a student driver, she cannot operate the truck alone and when the accused is an owner-operator, CRST has no authority to remove him from his own truck. Plaintiffs admit that removing a student driver or a driver who has been harassed by an owner-operator complies with licensing and truck ownership rules. They deny that other aspects of the removal policy comply with those rules, such as cutting the pay of the removed driver or allowing the lead driver or owner-operator accused of harassment to continue working and earning pay. Id. at ¶ 42.

         CRST states that it works with the removed driver to investigate the complaint and to locate a new co-driver for the employee's next job. Plaintiffs admit that CRST does this in some, but not all instances, and adds that this does nothing to alleviate the consequences of spending the intervening time off the truck, wholly unpaid or with a pay cut, until a new co-driver can be located. Id. at ¶ 43.

         On July 1, 2015, [5] CRST authored a new Layover Pay Policy, which states:

CRST provides team drivers with multiple venues to report concerns related to harassment and discrimination. Upon a report of harassment or discrimination, CRST staff actively engages with each driver to ensure their safety. Normally, the driver making the complaint (Complainant/Accuser) is removed from the truck expeditiously and routed to a safe haven. The objective here is safety first. If the situation warrants, police will be called to ensure that no incidents transpire while the driver is packing up and exiting the truck. CRST exemplifies a culture that is fair and consistent with regard to pay and lodging to employees who report Title VII concerns. A team driver will not be penalized, financially, for reporting a bonafide concern. In addition, CRST enforces zero tolerance for retaliation.

See Doc. No. 171-2 at ¶ 45. The Policy further provides that when a complaint of harassment or discrimination is made, the dispatcher will “make arrangements to remove the Accuser from the truck” unless the removal of the accuser means that there will not be a qualified driver for the truck. Id. at ¶ 46.

         CRST claims that when a driver is removed from a truck, it ensures she has sufficient funds for lodging and transportation costs (which she does not have to pay back) and CRST immediately investigates. Plaintiffs argue the lodging, transportation costs and timing of CRST's investigation are not relevant. They deny that CRST provides sufficient funds for lodging and transportation, stating that removed drivers often bear these costs on their own and CRST will often recoup any advance it has made from a driver's paycheck later. Doc. No. 191-2 at ¶ 47. They also deny that it was CRST's practice prior to July 2015 to cover any lodging or transportation costs. Id.

         CRST states that it pays HR layover pay to a complainant removed from a truck starting on the date of removal and ending the date the employee is paired with a new co-driver. Plaintiffs deny this with respect to all times prior to July 1, 2015. Id. at ¶ 48. After July 1, 2015, plaintiffs deny that HR layover pay was always paid to women removed from their truck due to a sexual harassment complaint. They claim that in 31 out of the 84 occasions on which a woman was removed from a truck due to sexual harassment from July 1, 2015, to the end of the class period, CRST paid no HR layover pay at all. Id. They add that CRST's policy states that the HR layover pay ends on the date the employee is offered a new pairing, which does not always coincide with the date she is actually paired with a new co-driver and is able to begin driving. Id.

         The amount of HR layover pay is based on the highest minimum wage in the country, which CRST multiplies by ten hours per day. Doc. No. 171-2 at ¶ 49. CRST paid $100 per day when it implemented HR layover pay. It then paid $110 per day based on California's increase to its minimum wage. Id.

         CRST states that prior to July 2015, a delay in pairing and continuation of driving exceeding 48 hours qualified the driver for layover pay of $40 per day. Plaintiffs deny this, stating that CRST's policy provided “[t]he truck must be available from empty time to dispatched pickup time no less than 48 hours to qualify for 1 layover.” Doc. No. 191-2 at ¶ 50. They argue this excludes situations where a driver is off the truck. Plaintiffs also deny that CRST had a policy or practice of paying standard layover pay prior to July 1, 2015, stating that at least 49 out of 51 female drivers who had to leave their trucks due to sexual harassment during that time frame did not receive any layover pay. Id.

         b. Plaintiffs' Statement of Additional Facts

         Karen Carlson, CRST's Manager of Employee Relations, has authority over the investigation of harassment or discrimination complaints made by all drivers in the CRST fleet. See Doc. No. 198-1. Carlson reports to Angela Stastny, CRST's Director of HR. Stastny in turn, reports to Brooke Willey, CRST's Vice President of HR.

         As of August 2016, women comprised approximately 13 percent of all drivers and five percent of lead drivers for CRST. CRST contends that it is approximately three to four times more successful than the industry average in attracting and retaining women as drivers. Id. at ¶¶54, 55. With regard to its policy of removing drivers who complain of sexual harassment (aside from the two exceptions concerning lead drivers and owners/operators), CRST states its policy is not limited to female drivers who complain of sexual harassment, but applies regardless of the gender of the complaining driver or accused driver and regardless of the nature of the complaint. Id. at ¶ 56.

         Plaintiffs have compiled an exhibit identified as “Figure 1, ” which they contend is a chart summarizing information provided by CRST consisting of complaint files documenting occasions in which a female driver had to get off her truck due to sexual harassment, “trip archive” records for these female drivers documenting each trip they made and payroll records documenting how much they were paid. Id. at ¶ 57. CRST admits that it produced the information identified by plaintiffs but denies that “Figure 1” is an accurate compilation of such information. It disputes Figure 1 is evidence that would be admissible at trial for several reasons that I will discuss below. Id. I will consider CRST's objections to Figure 1 to apply to all of the assertions described below.

         According to Figure 1, there were 135 occasions in which a female driver had to get off her truck due to sexual harassment between October 12, 2013, and December 5, 2017. CRST denies the legal conclusion that these women were all subjected to “sexual harassment.” CRST states that in several of the cases plaintiffs rely on, the complaining driver exited the truck for reasons unrelated to alleged harassment. These reasons included things such as: update of commercial driver's license, truck maintenance and other disrespectful behavior. CRST also states that in many instances, the complaining driver requested to exit the truck. Id. at ¶ 58. Out of the 135 occasions plaintiffs cite, they contend 50 women were co-drivers and 85 women were students. CRST clarifies that Figure 1 does not list 135 different women, but admits that out of the 135 instances cited by plaintiffs in Figure 1, CRST's records show that 50 allegations were made by co-drivers and 85 allegations by student drivers. Id. at ¶ 59. None of the women in the 135 instances continued on their truck after complaining of sexual harassment. CRST states that the evidence shows that in some cases, the complainant did not make a complaint until she was already off the truck. Id. at ¶ 60. It cites one instance in which the female driver reported allegations three days after exiting the truck and another instance in which the female driver reported her allegations the day after she got onto a different truck. It also states again that some complainants exited the truck for reasons unrelated to the alleged harassment. Id.

         According to plaintiffs, in nine of the 135 cases the female driver was physically kicked off the truck by the harasser and HR followed its policy of allowing the accused to continue driving. CRST denies that its files show that any female driver was “physically kicked off the truck by the harasser” and states that its files show that none of the named individuals stated that the alleged harasser “physically” removed her from the truck. Id. at ¶ 61. CRST also states that none of the named individuals complained until after her co-driver or lead driver reported her for unsafe driving. Id.

         In 20 of the 135 cases, plaintiffs contend the female driver physically jumped off the truck due to harassment and the alleged harasser was permitted to keep driving pursuant to CRST's policy. CRST denies that its files show that the named individuals “physically jumped” off the truck. Id. at ¶ 62. In one instance, it states the files show that the complainant and alleged harasser both exited the truck because it required maintenance. In another instance, CRST states the file shows the complainant was quitting employment and had already put in her notice when she got of the truck. Id. With regard to whether it permitted the alleged harassers to keep driving, it notes that its files show that in one instance, the alleged harasser quit and did not continue on the truck. In many of the ...

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