United States District Court, N.D. Iowa, Cedar Rapids Division
CATHY SELLARS, on behalf of herself and all others similarly situated, et al., Plaintiffs,
CRST EXPEDITED, INC., Defendant.
MEMORANDUM OPINION AND ORDER
Leonard T. Strand, Chief Judge.
Motion for Partial Summary Judgment on
Defendant's Statement of
CRST Practices in Responding to
Complaints of Sexual
Plaintiffs' Statement of Additional
Admissibility of Plaintiffs' Evidence .................
Is There a Policy, Pattern or Practice? ..............
Does the Alleged Policy, Pattern or Practice Involve an
Adverse Employment Action?
Motion for Decertification of Hostile Work
Failure to Corroborate Complaints Without
an Eyewitness or Admission
Failure to Discipline When Complaints are Corroborated
Failing to Discipline DMs Who Do Not Promptly Respond
Appropriately to Complaints
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) 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
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
(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
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
(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
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.
Motion for Partial Summary Judgment on Retaliation
argues that plaintiffs' retaliation claim fails for four
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
4. The record lacks any evidence of pretext.
See Doc. No. 171.
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
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.
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).
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.
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.
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.
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.
following facts are undisputed for purposes of CRST's
motion, unless noted otherwise:
Defendant's Statement of Facts
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.
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.
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
CRST Written Policies
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 ¶
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
Id. at ¶ 30.
CRST Practices in Responding to Complaints of Sexual
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.
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 ¶
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.
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.
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.
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.
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
1, 2015,  CRST authored a new Layover Pay Policy,
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 ¶
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.
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.
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.
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
Plaintiffs' Statement of Additional Facts
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.
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.
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.
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
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.
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