Petition for Writ of Certiorari — Cathy Sellars, et al., Petitioners v. CRST Expedited, Inc.

Supreme Court briefDec 6, 2021

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13 F.4th 681

United States Court of Appeals, Eighth Circuit.

Cathy SELLARS, On behalf of herself and all others

similarly situated; Claudia Lopez, On behalf of herself and all others similarly situated; Leslie Fortune,

On behalf of herself and all others similarly situated

Plaintiffs-Appellants

CRST EXPEDITED, INC. Defendant-Appellee

Equal Employment Opportunity Commission

Amicus on Behalf of Appellants

No. 19-2708

Submitted: September 22, 2020

Filed: September 8, 2021

Attorneys and Law Firms

Joshua N. Friedman, I, Attorney, Rebecca Houlding,

Shilpa Narayan, Giselle Brianceschi Schuetz, Friedman & Houlding, Mamaroneck, NY, Thomas Andrew

Newkirk, Newkirk & Zwagerman, Des Moines, IA, for

Plaintiffs-Appellants.

Jessica Ring Amunson, Jenner & Block, Washington,

DC, James T. Malysiak, John H. Mathias, Jr., Jenner &

Block, Chicago, IL, Nicholas Petersen, Kevin James

Visser, Simmons & Perrine, Cedar Rapids, IA, for Defendant-Appellee.

Sydney Foster, Jennifer S. Goldstein, Sharon Fast Gustafson, Philip Matthew Kovnat, Equal Employment

Opportunity Commission, Washington, DC, for Amicus

on Behalf of Appellants.

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.

Opinion

WOLLMAN, Circuit Judge.

Cathy Sellars, Claudia Lopez, and Leslie Fortune

(hereinafter, the Plaintiffs) brought suit against their

employer, CRST Expedited, Inc. (CRST), alleging Title

VII claims of retaliation and hostile work environment

on behalf of themselves and all others similarly situated, as well as individual constructive discharge

claims on behalf of themselves. As relevant to this appeal, the district court granted summary judgment to

CRST on the class and individual retaliation claims, as

well as on the Plaintiffs’ individual hostile work environment and constructive discharge claims. We affirm

in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Background

The Plaintiffs are female truck drivers who represent a class of women who drove for CRST between October 12, 2013, and December 5, 2017. Sellars drove for

CRST between December 2013 and March 2014. Lopez

drove for CRST between April 2014 and December

2014. Fortune drove for CRST between November 2013

and January 2015.

CRST is a long-haul trucking company whose

drivers begin and end trips at designated CRST terminals around the country. Drivers also stay at the terminals between loads as needed. CRST’s employment

policies apply at the terminals, as well as on the trucks.

CRST’s drivers work in pairs so that one driver can

sleep in the truck’s bunks while the other continues to

drive. Typically, once a driver has been hired, trained,

and licensed, CRST does not directly pair the drivers.

Rather, it signs off on a pairing after the drivers mutually agree to take on a truck load, provided that there

are no Human Resources (HR)-based personnel limitations, such as a “male only” tag on a driver. CRST will

occasionally facilitate a pairing among available drivers, who then mutually agree to drive together. Drivers

earn an individualized rate per mile depending on

their experience (split-mileage rate). While on the

truck, drivers can communicate with CRST management through a “Qualcom unit,” a type of internal

email and instant messaging system.

CRST’s standard pay policy provides for two types

of driver pay: an individualized split-mileage rate

earned only while driving the truck, and set rates

earned in other situations—such as layovers longer

than 48 hours and time spent waiting for a road to become passable. If management removes a driver from

a truck, CRST will pay for a hotel room and/or transportation to another CRST terminal or new load as

needed. On or about July 1, 2015, CRST amended its

standard pay policy such that drivers removed from a

truck following a complaint of sexual harassment

would receive a set rate of layover pay regardless of

how long the layover lasted (HR layover policy).

Upon being hired, drivers receive a copy of CRST’s

sexual harassment procedures and acknowledge to

management that they will report any sexual harassment that they experience so that they can be removed

from the harassing situation. Once management receives a safety or harassment complaint from a truckoccupying driver, CRST’s practice is to remove complainants from the complained-of situation as soon as

practicable. CRST contends that removal is necessary,

both for the safety of the complainants and for the facilitation of a prompt investigation by HR. As the only

witnesses to harassment on the truck are often the

complainant and the alleged harrasser, many complaints cannot be corroborated. Even in the absence of

corroboration, however, CRST often designates an accused male driver as “male only,” which precludes him

from future pairings with female drivers.

In addition to the general sexual comments by

coworkers, each of the Plaintiffs complain of multiple

incidents of sexual harassment during their time at

CRST. Included below are those specific incidents having a clearly established timeline in the record.

Sellars complains of at least three separate incidents of sexual harassment by three different male

CRST employees during her employment. During her

onboard training at CRST’s terminal in December

2013, Sellars reported to her supervisor that a male

CRST driver, Lydell Wilkerson, had made inappropriate sexual comments to her and propositioned her for

sex. CRST sent Wilkerson out of the terminal to meet

another load, after which Sellars was not again bothered by him. In January 2014, CRST assigned a male

lead driver to train Sellars. While on the truck, this

lead driver made sexual comments to Sellars, masturbated in her presence while inviting her to “join him,”

and attempted to remove Sellars’s shirt while she was

sleeping. Within six hours of Sellars’s complaint to

management about the lead driver’s conduct, she was

removed from the truck and Karen Carlson, an HR employee, began an investigation. This lead driver was

thereafter moved to male only status. In February

2014, while still in training, Sellars reported to CRST’s

dispatch that another male lead driver, Dwain Monroe,

had shown pornographic images to her on his phone,

made sexual innuendos, and displayed a knife upon

learning of her report. In response, CRST again removed Sellars from the truck and conducted an investigation. Although CRST could not corroborate

Sellars’s complaint and police did not find a knife during their search of the truck, Monroe was ordered to

have no further contact with Sellars. Sellars terminated her employment with CRST in March 2014.

Lopez complains of at least four separate incidents

of sexual harassment by four different male CRST employees during her employment. While onboarding at

CRST’s terminal in April 2014, Lopez complained to

management that a male student driver had made

multiple inappropriate sexual comments to and about

her. Specifically, the driver allegedly told others that he

was going to “come back for” Lopez and “rape and

marry” her after training. Lopez also reported that he

had asked her personal and suggestive questions and

made her physically uncomfortable by rubbing her

back and attempting to force her to hug him. CRST

investigated and then placed the student driver on

male only status. In July 2014, Lopez complained to

her driving manager that her male co-driver had made

sexual advances and comments while they were on the

truck, had given her gifts that made her uncomfortable, and had attempted to kiss her. She also reported

that she had awakened to find him sitting on her bunk

stroking her hair. Lopez alleges that when she rebuffed

his advances, he eventually drove away and left her

stranded. No longer on the truck, Lopez did not report

the harassment until her driving manager contacted

her, whereupon CRST investigated and moved the codriver to male only status. While on a truck with a different male co-driver in October 2014, Lopez awakened

to find him naked, penis erect, on top of her. Lopez complained to management but asked to be allowed to remain on the truck and continue on to the Oklahoma

City terminal. Based on Lopez’s complaints and despite her request to stay with the load, CRST arranged

for Lopez to exit the truck as soon as practicable, arranged for other transportation for Lopez to Oklahoma

City, and investigated. Lopez quit in December 2014

after a third co-driver told her he “could kill [her] and

leave [her] in the mountains” without anyone knowing,

an incident that Lopez did not report to CRST.

Fortune complains of at least four separate incidents of sexual harassment by four different male

CRST employees during her employment. During Fortune’s November 2013 training, her assigned lead

driver made multiple sexual advances toward her, including inviting her to share a bed and asking about

her sexual preferences, while telling her that he had

“never been with a colored woman before.” When Fortune complained to CRST’s safety representative at

the terminal, CRST removed her from the truck, investigated the complaint, and terminated the lead driver

for other reasons. Fortune completed her student

driver training with Lydell Wilkerson without incident. Fortune alleges that later that month her first codriver, James Parker, propositioned her for sex and

viewed porn and masturbated in her presence. Fortune

exited the truck at a truck stop and contacted her driving manager. Although the manager initially asked

Fortune if she could stay on the truck and work it out,

Fortune found another ride back to CRST’s terminal.

At the terminal, Parker spread rumors that Fortune

was “a lot lizard,” trucker slang for “prostitute,” and

continued making threats. HR minimally investigated

both incidents and moved Parker to male only status.

In May 2014, Fortune’s male co-driver made suggestive comments about Fortune’s looks, told her he

“needed to know if she was clean” (impliedly from sexually transmitted diseases), and asked to get into the

bunk with her. When Fortune rebuffed him, he became

angry and hostile and refused to help her maneuver

the truck. Fortune complained, and CRST made arrangements for her to exit the truck at the Oklahoma

City terminal, where Fortune complained to her driving manager, as well as via the HR hotline. CRST

claims that the driver was prohibited from contacting

Fortune again. In August 2014, Fortune complained

that her then co-driver, Charles Pickens, touched her

inappropriately while on the truck and asked to get

into bed with her when she awakened to find him

standing over her bunk. Fortune alleges that Pickens

left only after she told him about the knives she kept

for self-protection. After reporting the incident to

CRST, Fortune got off the truck.

The Plaintiffs brought both individual and class

Title VII retaliation claims alleging that CRST maintained a pattern or practice of discrimination against

women who complain about sexual harassment. The

district court certified a class of female drivers who

drove for CRST after October 12, 2013, and were required to “exit the truck in response to their complaints of sexual harassment.” D. Ct. Order of March

30, 2017, at 55. Between October 12, 2013, and December 5, 2017, there were 135 instances of female drivers

exiting CRST trucks after complaining of sexual harassment. In light of CRST’s July 1, 2015, change in pay

policy, the district court treated those members of the

class who drove for CRST prior to July 1, 2015, as one

group (the pre-2015 class members) and those members who drove for CRST after July 1, 2015, as a second

group (the post-2015 class members). There is no dispute that the Plaintiffs’ individual retaliation claims

are identical to the class retaliation claims of the pre2015 class members.1

Pursuant to Federal Rule of Civil Procedure

23(c)(4)(A), the district court also certified the question

“whether CRST has a policy, pattern or practice of

Sellars, Lopez, and Fortune each terminated her employment with CRST prior to July 2015.

retaliating against women complaining of sexual harassment by requiring them to exit the truck except

when they are a lead driver or owner-operator.” D. Ct.

Order of March 30, 2017, at 55. CRST conceded in its

brief in support of its motion for summary judgment

that its practice was to remove complainants from the

complained-of situation unless there were special circumstances involved. The district court’s order granting summary judgment instead addressed, as a

“threshold issue” for each group of class members,

“whether there [was] a genuine issue of material fact

as to whether CRST has a policy, pattern or practice or

‘standard operating procedure’ of not paying women

who complain of sexual harassment.” D. Ct. Order of

Jan. 15, 2019, at 26.

With regard to the pre-2015 class members, the

district court found a genuine dispute of material fact

whether CRST maintained a policy of not paying

women who complain of sexual harassment. The district court concluded, however, that there was no direct

evidence of retaliation and that the Plaintiffs had

failed to show pretext under McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). The district court granted summary judgment

to CRST on the class retaliation claims of the pre-2015

class members, as well as on the Plaintiffs’ identical

individual retaliation claims, because there was no

genuine dispute of fact whether the adverse employment action they experienced was in retaliation for

their Title VII protected activity.

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With regard to the post-2015 class members, the

district court found that the Plaintiffs had not shown

that CRST’s policy of not paying women who complained of sexual harassment continued after the July

2015 change in pay policy. The district court accordingly concluded that there was no genuine dispute of

material fact whether the post-2015 class members experienced an adverse employment action and also

granted summary judgment to CRST on the class retaliation claims of the post-2015 class members.

Each Plaintiff also brought individual hostile

work environment and constructive discharge claims.2

The district court concluded that a reasonable jury

could find that each Plaintiff was subjected to harassment severe and pervasive enough to constitute a hostile work environment. However, the district court

found no genuine dispute of material fact with respect

to CRST’s liability for the alleged coworker-oncoworker harassment. Finally, the district court concluded that, although the conditions were intolerable,

there was no genuine dispute of material fact whether

CRST deliberately created intolerable working conditions with the intent that any of the Plaintiffs would

resign. The district court accordingly granted summary judgment to CRST on the Plaintiffs’ individual

Title VII hostile work environment and constructive

discharge claims.

Although the Plaintiffs initially brought a class hostile

work environment claim, the district court decertified the hostile

work environment class, a ruling that the Plaintiffs do not appeal.

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We review grants of summary judgment de novo,

making all reasonable inferences in favor of and viewing all genuinely disputed facts most favorably to the

non-moving party. Young-Losee v. Graphic Packaging

Int’l, Inc., 631 F.3d 909, 911 (8th Cir. 2011). Summary

judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

II. Individual and Class Retaliation Claims

The Plaintiffs appeal the district court’s grant of

summary judgment on both the individual and class

Title VII retaliation claims. There is no dispute that

CRST’s practice during the entire class period was to

remove drivers who complained of co-driver sexual

harassment from the truck as soon as practicable

(CRST’s removal policy). Complainants ceased to earn

their split-mileage rate upon removal but remained eligible to earn the other types of pay provided for in

CRST’s standard pay policy. After CRST changed the

pay policy in 2015, sexual harassment complainants

became immediately eligible to receive layover pay

upon removal.3 CRST did not inform its employees of

the changed HR layover policy, however, and so they

learned of the change only upon complaining of sexual

harassment. The Plaintiffs argue two theories of retaliation under Title VII: (1) that CRST’s policy of

Prior to this change, drivers received layover pay only if

they were off the truck for more than 48 hours.

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removing complainants of sexual harassment is retaliatory per se; and (2) that there is a genuine dispute of

material fact as to whether the Plaintiffs and the class

were subject to an adverse employment action motivated by retaliatory intent.

Title VII prohibits employers from discriminating

against any employee who complains of sexual harassment in the workplace. 42 U.S.C. § 2000e-3(a); Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-68, 106 S.Ct.

2399, 91 L.Ed.2d 49 (1986) (holding that sexual harassment may be actionable under Title VII as discrimination on the basis of sex if it is sufficiently severe and

pervasive).

The Plaintiffs argue that CRST’s removal policy is

retaliatory per se. See EEOC v. Bd. of Governors of

State Colls. & Univs., 957 F.2d 424, 428 (7th Cir. 1992)

(“When an employee’s participation in statutorily protected activity is the determining factor in an employer’s decision to take adverse employment action,

that action is invalid regardless of the employer’s intent.”). They claim that CRST’s standard response to

complaints about sexual harassment places a complainant on what amounts to an “unpaid suspension”

because she ceases to earn a split-mileage rate upon

removal. We have not previously applied the Seventh

Circuit’s “retaliatory per se” standard to find an employer’s policy retaliatory on its face, and the facts of

this case do not call for us to do so here. See Franklin

v. Loc. 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d

508, 520-21 (8th Cir. 2009) (considering whether a policy of publicly announcing the names of EEOC

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complainants and the amount the organization paid in

related legal bills at union meetings was retaliatory

per se).

The record does not establish that an “unpaid suspension” policy exists. CRST’s reactive response to a

complaint is to remove the complainant from a truck

and conduct an investigation. After removal, the complainant receives whatever pay he or she is entitled to

under CRST’s standard pay policy.4 The Plaintiffs have

not pointed to any evidence that CRST’s removal policy

applies differently to sexual harassment complainants

than to complainants of other issues, such as safety.5

Moreover, the Plaintiffs do not dispute that CRST’s removal policy applies regardless of the complainant’s

gender. CRST’s removal policy thus does not constitute

per se retaliation in this case. See id. at 521 (declining

to follow Board of Governors because the allegedly retaliatory policy at issue applied broadly to all legal

bills and did not single out members who filed EEOC

charges).

The Plaintiffs inaccurately characterize CRST’s policy as

placing drivers on an “unpaid suspension.” The record shows that,

even for the pre-2015 class members, the net effect of removal on

a driver’s pay was dependent on a variety of factors, such as the

length of the resulting layover, the driver’s choice of action upon

removal, and the availability of another load. Because at least

some removed drivers did not experience a net decrease in pay

after removal, the only allegedly retaliatory action taken by CRST

was the removal of complainants from trucks.

The record instead contains HR presentations which discuss the automatic removal of both safety and sexual harassment

complainants.

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We turn then to whether the Plaintiffs have shown

a genuine dispute of material fact that they suffered

an adverse employment action in retaliation for their

protected activity under Title VII. Once a plaintiff has

alleged a materially adverse employment action, “[t]o

survive a motion for summary judgment on a retaliation claim, [the plaintiff ] either must offer direct evidence of retaliation or create an inference of retaliation

under the McDonnell Douglas burden-shifting framework.” Hutton v. Maynard, 812 F.3d 679, 683 (8th Cir.

2016) (internal citations omitted).

The alleged retaliatory action at issue is CRST’s

removal policy, a practice that affected all members of

the class. Because the certified class consists of two

groups who were subject to different pay policies upon

removal from the truck, we address the pre-2015 class

members—and the Plaintiffs’ identical individual retaliation claims—separately from the post-2015 class

members. For each group, we address whether a reasonable employee would have considered CRST’s removal policy to be materially adverse. With respect to

the pre-2015 class members and the Plaintiffs, we then

consider whether the Plaintiffs have shown a genuine

dispute that an “impermissible retaliatory motive [on

CRST’s part] was the but-for cause of the adverse employment action” that they suffered. Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017) (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 35253, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)). We do not

reach the second question for the post-2015 class members, however, because the district court’s grant of

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summary judgment was based only on its determination that those class members did not experience an

adverse employment action.

A. Pre-2015 Class Members

Plaintiffs argue that CRST removed drivers from

the truck in retaliation for their complaints of sexual

harassments. Title VII’s “antiretaliation provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126

S.Ct. 2405, 165 L.Ed.2d 345 (2006). Thus, the Plaintiffs

must show that CRST’s removal practice was materially adverse—that it “might have dissuaded a reasonable worker from making” a sexual harassment

complaint. Id. at 68, 126 S.Ct. 2405 (internal quotation

marks and citation omitted). Title VII’s “antiretaliation provision seeks to prevent employer interference

with unfettered access to Title VII’s remedial mechanisms . . . by prohibiting employer actions that are

likely to deter victims of discrimination from complaining to . . . their employers.” Id. (internal quotation

marks and citations omitted). This is so because “Title

VII depends for its enforcement upon the cooperation

of employees who are willing to file complaints” and

“effective enforcement could . . . only be expected if employees felt free to approach officials with their grievances.” Id. at 67, 126 S.Ct. 2405 (quoting Mitchell v.

Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80

S.Ct. 332, 4 L.Ed.2d 323 (1960)).

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The Plaintiffs argue that before the July 2015 pay

policy change, a majority of complainants removed

from trucks experienced a net decrease in expected pay

following removal, and that a reasonable employee in

the pre-2015 class members’ position would therefore

have found CRST’s removal practice materially adverse. See id. (adopting objective standard to determine whether an action is adverse), see id. at 70, 126

S.Ct. 2405 (believing that an objective standard would

“screen out trivial conduct while effectively capturing

those acts that are likely to dissuade employees from

complaining . . . about discrimination.”). We agree.

CRST provided its drivers with its removal policy and

its pay policy. Drivers were thus aware that complaining of sexual harassment would result in their removal

from the truck and that, upon removal, they would

cease earning their split-mileage rate of pay. Under the

pre-July 2015 pay policy, the drivers also knew that

they would qualify for layover pay after removal only

if their layover was longer than 48 hours. The record

establishes that a vast majority of pre-2015 class members actually experienced a net decrease in pay upon

removal. Thus, a reasonable employee in the pre-2015

class members’ position would expect that complaining

of sexual harassment would directly lead to a net decrease in pay. The Plaintiffs have therefore shown that

CRST’s removal policy was materially adverse under

Burlington Northern, 548 U.S. at 67-68, 126 S.Ct. 2405;

cf. Mitchell, 361 U.S. at 292, 80 S.Ct. 332 (“[I]t needs no

argument to show that fear of economic retaliation

might often operate to induce aggrieved employees

quietly to accept substandard conditions.”). We turn

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then to the question whether the Plaintiffs have shown

that, for the pre-2015 class members, this adverse employment action was in retaliation for their Title VIIprotected activity.

We first consider whether the Plaintiffs have presented direct evidence of retaliation—that is, “evidence

that demonstrates a specific link between a materially

adverse action and the protected conduct, sufficient to

support a finding by a reasonable fact finder that the

harmful adverse action was in retaliation for the protected conduct.” Young-Losee, 631 F.3d at 912 (citing

Burlington N., 548 U.S. at 57, 68, 126 S.Ct. 2405).

“ ‘[D]irect’ refers to the causal strength of the proof, not

whether it is ‘circumstantial’ evidence.” Griffith v. City

of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). “Direct

evidence . . . must relate to people with decision-making authority” and does not include “stray remarks in

the workplace” or “statements by nondecisionmakers.”

Moody v. Vozel, 771 F.3d 1093, 1096 (8th Cir. 2014) (internal citation omitted).

The Plaintiffs point to presentation slides from

CRST’s 2014 weekly HR employee relations meetings

as “direct evidence of retaliation.” A slide titled “Questions / Discussion Items” included the following language:

When drivers raise allegations of sexual or

other issues of harassment, and we remove

them from the truck . . . why is it that the accused can stay on earning money and the accuser gets stranded at a motel and loses

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money every day and has to wait for a new codriver . . . Punished for raising concerns.

The Plaintiffs allege that this characterization of

CRST’s removal policy as “punishment” constitutes direct evidence of retaliation sufficient to enable their

claims to survive summary judgment. We disagree.

It is unlikely that this discussion question in an

HR meeting could be considered a “comment by a decisionmaker.” Cf. Torgerson v. City of Rochester, 643 F.3d

1031, 1044 (8th Cir. 2011) (en banc) (comments by a

commissioner not involved in the hiring process were

not direct evidence of discrimination where there was

“no evidence [that the commissioner] influenced the ultimate decisionmaker”). Title VII was designed to encourage employers to take steps to prevent

harassment and to offer effective grievance mechanisms. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Employers would have little incentive to critically examine

their policies in a systematic and documented way if a

single HR discussion question could be construed as a

comment made on behalf of the company.

Even if the presentation slide were considered to

be a statement by a decisionmaker, the discussion

question itself does not show a “specific link between a

discriminatory bias and the adverse employment action, sufficient to support a finding by a reasonable

fact-finder that the bias motivated the action.” Torgerson, 643 F.3d at 1046. Read in context, it is apparent

that this slide was intended to question CRST’s

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removal policy and lead to a discussion about whether

it should be changed rather than continued. Cf. Lors v.

Dean, 746 F.3d 857, 867 (8th Cir. 2014) (an email from

the employee’s nondecisionmaker team leader advocating for filing a preemptive claim against the employee was not sufficient direct evidence that the

employee was terminated in retaliation for his protected activity). At most, this was a stray comment that

questioned—rather than supported—the allegedly discriminatory policy, and thus it does not reflect any motivative discriminatory bias on the decisionmaker’s

part.

In the absence of any direct evidence of retaliation,

we apply the McDonnell Douglas burden-shifting

framework to determine whether the Plaintiffs have

raised an inference of retaliation. The Plaintiffs have

the initial burden of establishing a prima facie case of

retaliation by showing “that [they] engaged in statutorily protected conduct, that [they] suffered an adverse

employment action, and that a causal connection exists

between the two.” Hutton, 812 F.3d at 684 (internal citation omitted). The burden then shifts to CRST to offer legitimate, non-retaliatory reasons for the alleged

retaliatory action before the burden shifts back to the

Plaintiffs to show that those reasons were pretext for

retaliation. Donathan, 861 F.3d at 740. Evidence of

pretext “is viewed in light of the employer’s justification.” Hutton, 812 F.3d at 685 (internal citation omitted).

It is not difficult to show a prima facie case of retaliation, Donathan, 861 F.3d at 740, and we will

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assume that the Plaintiffs have done so here. The

Plaintiffs do not dispute that CRST offered legitimate,

non-discriminatory reasons—protecting the complainant’s safety and responding properly to complaints of

sexual harassment as required by our hostile work environment precedent—for the removal policy. See Torgerson, 643 F.3d at 1047 (“The burden to articulate a

nondiscriminatory justification is not onerous, and the

explanation need not be demonstrated by a preponderance of the evidence.” (quoting Floyd v. Mo. Dep’t of Soc.

Servs., Div. of Fam. Servs., 188 F.3d 932, 936 (8th Cir.

1999))). We thus turn directly to the question of pretext. Hutton, 812 F.3d at 684.

To show pretext, the Plaintiffs must both discredit

CRST’s proffered reasons for the alleged retaliatory action and show that the circumstances permit drawing

a reasonable inference that retaliation was the real

reason for the adverse employment action. Id. (citing

Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906,

918 (8th Cir. 2007)). The Plaintiffs do not question the

credence of CRST’s proffered safety justification. They

instead point to the presentation slides’ characterization of that policy as a “punishment” and claim that

showing CRST’s knowledge of the unchanged retaliatory policy is sufficient to show pretext. This contention

finds no support in our precedent, see Donathan, 861

F.3d at 739 (the plaintiff must show that a retaliatory

motive was the but-for cause of the adverse action),

and lacks persuasiveness in light of our earlier discussion of the paucity of direct evidence. Having viewed

the Plaintiff ’s evidence of pretext “in light of the

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employer’s justification,” we agree with the district

court that they have not created a genuine dispute

whether retaliatory intent likely motivated CRST

here.

B. Post-2015 Class Members

It is undisputed that CRST changed its pay policy

in July 2015 such that sexual harassment complainants removed from trucks would immediately begin

earning a set rate of layover pay. It is also undisputed

that CRST did not inform its employees of the change

in pay policy until after an employee had complained

of sexual harassment. The change affected only complainants of sexual harassment, with safety complainants being handled on a case-by-case basis. According

to CRST’s Head of Human Resources, Angela Stastny,

however, CRST intentionally did not inform its employees of the changed policy to “ensure [the HR layover policy was] used for the correct purposes.” Because

removed sexual harassment complainants no longer

experienced a post-removal net decrease in pay, the

district court concluded that the post-2015 class members did not suffer an adverse employment action and

granted summary judgment to CRST on their class retaliation claim. The Plaintiffs argue, however, that

even though CRST changed its pay policy to compensate removed sexual harassment complainants, its employees were left with the impression that those who

complained of sexual harassment could continue to expect the same pay decrease that pre-July 2015 complainants experienced.

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As discussed above, a reasonable employee before

July 2015 would consider CRST’s removal practice to

be materially adverse because, due to the interaction

of the removal policy and the pay policy, the employee

would expect to experience a net decrease in pay after

complaining. The record establishes that a reasonable

employee after July 2015 would have the same expectation because CRST did not tell its employees about

its changed pay policy. We therefore conclude that the

post-2015 class members were subject to the same adverse employment action as that experienced by the

pre-2015 class members.

Our conclusion is unaffected by the fact that the

anticipated net decrease did not come to fruition. In

Burlington Northern, White, a female employee filed

an EEOC complaint alleging gender-based discrimination. 548 U.S. at 58, 126 S.Ct. 2405. She was subsequently transferred to a different, less-desirable work

location, suspended without pay for 37 days, and later

reinstated to her position and awarded backpay for the

37 days of suspension. Id. at 58-59, 126 S.Ct. 2405. In

ruling on White’s Title VII retaliation claim, the Court

adopted a reasonable employee standard to determine

whether an action was adverse and held that a jury

could reasonably conclude that White had suffered an

adverse employment action even though the subsequent backpay award made her whole. Id. at 69-73, 126

S.Ct. 2405. Under the standard established in Burlington Northern, an employer’s action is materially adverse if it might dissuade a reasonable employee from

23a

complaining of sexual harassment, even if the employee is later made whole.

Applying Burlington Northern here, we conclude

that CRST subjected the post-2015 class members to

the same adverse employment action as the pre-2015

class members when it concealed the change to its payment policy. The district court thus erred in granting

summary judgment on the ground that the post-2015

class members suffered no adverse employment action

because they did not see an average net decrease in

pay following removal. We leave to the district court to

address in the first instance the question whether direct or circumstantial evidence establishes that CRST

took this adverse employment action in retaliation for

the post-2015 class members’ Title VII-protected activity.6

III. Individual Hostile Work Environment Claims

We turn next to the Plaintiffs’ individual hostile

work environment claims and consider their argument

that CRST should be held directly liable for the

coworker-on-coworker harassment each Plaintiff experienced. This is not the first time that we have considered a hostile work environment claim based on sexual

harassment experienced by female drivers on CRST’s

Our affirmance of summary judgment in favor of CRST on

the named Plaintiffs’ individual retaliation claims raises a question on remand whether the surviving class members have a class

representative who meets the requirements of Federal Rule of

Civil Procedure 23(a).

24a

trucks. In EEOC v. CRST Van Expedited, Inc. (CRST

I), 679 F.3d 657 (8th Cir. 2012), we held (1) “that

CRST’s Lead Driver is not a supervisory employee,” id.

at 684, and (2) that as to the women who had shown a

hostile work environment and had given actual notice

of it to CRST, “as a matter of law, CRST promptly and

effectively remedied any alleged harassment that the

women reported,” id. at 692-93. See also Vance v. Ball

State Univ., 570 U.S. 421, 448, 133 S.Ct. 2434, 186

L.Ed.2d 565 (2013) (citing with approval CRST I’s definition of a “supervisor” and its conclusion that the

lead driver was a non-supervisory employee). The

Plaintiffs each allege incidents of sexual harassment

similar to those alleged by the EEOC in 2012. These

individual hostile work environment claims must thus

be considered in the context of CRST’s post-CRST I actions.

To survive summary judgment on a hostile work

environment claim, the Plaintiffs must establish a genuine dispute of material fact with regard to each Plaintiff “(1) that she belongs to a protected group; (2) that

she suffered unwelcome harassment; (3) that there

was a causal nexus between the harassment and her

membership in the protected group; (4) that the harassment affected a term, condition, or privilege of her

employment; and (5) that the employer knew or should

have known of the harassment and failed to take

prompt and effective remedial action.” CRST I, 679

F.3d at 685 (quoting Sheriff v. Midwest Health Partners, P.C., 619 F.3d 923, 929 (8th Cir. 2010) (internal

alterations omitted)). In cases of coworker-on-coworker

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harassment, the employer is liable only if the employer’s own negligence caused the harassment,

Ellerth, 524 U.S. at 759, 118 S.Ct. 2257, or led to the

continuation of the hostile work environment, Engel v.

Rapid City Sch. Dist., 506 F.3d 1118, 1123 (8th Cir.

2007). The only question before us is whether CRST

knew or should have known of the harassment and

failed to take “prompt and effective remedial action

that [was] reasonably calculated to stop the harassment,” that is, whether CRST was negligent. Id.; see

also Vance, 570 U.S. at 449, 133 S.Ct. 2434 (“Evidence

that an employer did not monitor the workplace, failed

to respond to complaints, failed to provide a system for

registering complaints, or effectively discouraged complaints from being filed would be relevant” to whether

an employer was negligent in failing to prevent harassment.).

Determining the existence of an employer’s negligence involves a two-step inquiry: (1) whether the employer had actual or constructive notice of the conduct,

CRST I, 679 F.3d at 690 (citing Sandoval v. Am. Bldg.

Maint. Indus., 578 F.3d 787, 801 (8th Cir. 2009)), and

(2) whether the employer took remedial action “reasonably calculated to stop the harassment,” Engel, 506

F.3d at 1123. Ellerth, 524 U.S. at 759, 118 S.Ct. 2257;

see also Alvarez v. Des Moines Bolt Supply, Inc., 626

F.3d 410, 421 (8th Cir. 2010) (“If an employer responds

to harassment with prompt remedial action calculated

to end it, then the employer is not liable for the harassment.” (citing Engel, 506 F.3d at 1123)); CRST I, 679

F.3d at 693 (“CRST addressed reported harassment by

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(1) removing the woman from the truck as soon as

practicable . . . ; (2) requesting a written statement

from the woman; (3) relieving the woman of any future

assignments with the alleged harasser; and (4) reprimanding the alleged harasser and barring him from

team-driving with women indefinitely. These actions,

not necessarily in combination, constitute the type of

prompt and effective remedial action that our precedents prescribe.”).

A. Actual Notice to CRST

Fortune appeals her individual hostile work environment claim on the theory that CRST’s post actualnotice response was not “reasonably calculated to stop

the harassment.” See Engel, 506 F.3d at 1123. Fortune

alleges that, in response to her November 2013 complaint about Parker’s harassment, the driving manager laughed, said, “you guys can work this out,” and

asked her to get back on the truck with Parker. Fortune

argues that a jury could find that the harassment continued because, once back at the terminal, Parker referred to Fortune as “a lot lizard.” She further argues

that CRST was negligent by “instruct[ing] her to go

back to the hostile environment” following her complaint and then allowing Parker’s harassment to continue at the terminal.

The record shows that Fortune did not return to

the truck following her complaint and that CRST conducted an investigation. Moreover, although we assume

that being described as “a lot lizard” constitutes

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harassment, such subsequent same-employee harassment does not independently establish that CRST was

negligent with regards to the hostile work environment. Id. at 1125 (even though the employer’s first remedial response did not end harassment of the victim

by the same coworker, the remedial response was still

adequate). Although we agree that CRST’s driving

manager might very well have better handled the situation, Fortune has not created a genuine factual dispute whether CRST’s response was actionably

deficient.

B. Constructive Notice to CRST

Each Plaintiff appeals her individual hostile work

environment claim on a constructive-notice theory.

Constructive notice of ongoing coworker-on-coworker

harassment is established “(1) where an employee provides management level personnel with enough information to raise a probability of sexual harassment in

the mind of a reasonable employer, or (2) where the

harassment is so pervasive and open that a reasonable

employer would have had to be aware of it.” CRST I,

679 F.3d at 690 (quoting Sandoval, 578 F.3d at 802)

(internal modifications omitted). The Plaintiffs allege

that the prior litigation against CRST, combined with

ongoing reports of sexual harassment experienced by

female drivers and concerns raised by HR employee

Carlson about the effectiveness of investigations, put

CRST on constructive notice of “a serious risk of sexual

harassment in the workplace.” The Plaintiffs thus argue that, post-CRST I, CRST’s failure to change its

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otherwise adequate remedial response following continued complaints of harassment by different coworkers constituted negligence sufficient to subject CRST

to direct liability for ongoing coworker-on-coworker

harassment.

The Plaintiffs contend that, even prior to their actual complaints of sexual harassment, CRST had constructive notice of a serious risk of sexual harassment

in the workplace that was not being effectively addressed by its current policies. We disagree. The Plaintiffs cite Sandoval v. American Building Maintenance

Industries, Inc. in support of their argument that the

decision in CRST I, coupled with the continued sexual

harassment complaints, placed CRST on constructive

notice of the risk of harassment. 578 F.3d at 802

(“nearly one hundred similar complaints” were relevant to the constructive notice determination). In

Sandoval, however, we held only that the district court

had erred by disregarding evidence of similar complaints without deciding whether this evidence created

a genuine factual dispute as to the employer’s constructive notice. 578 F.3d at 804 (Gruender, J., concurring in part and dissenting in part). Here, the district

court properly considered evidence of prior litigation

and continued complaints in its determination regarding the constructive notice issue.

Moreover, even though the Sandoval plaintiffs

had presented some 68 reports of harassment, the district court found on remand that they had not established broad constructive notice to the employer.

Sandoval v. Am. Bldg. Main. Indus., 765 F. Supp. 2d

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1138, 1169-71 (D. Minn. 2010). Reports made by nonplaintiff victims about different harassers at separate

worksites were not probative of whether the employer

had constructive notice that sexual harassment was

pervasive and open in an individual plaintiff ’s work

environment. Id. at 1170. We find the district court’s

reasoning in Sandoval instructive—particularly so in

light of the decentralized nature of CRST’s work environment. The record shows that the actual incidents of

harassment took place away from management’s oversight and were perpetrated by employees with no

known history of harassment. At most, CRST management had notice of a generalized risk of harassment,

which is insufficient to establish the constructive notice of ongoing harassment necessary to trigger an employer’s obligation to take preventative remedial

action. CRST I, 679 F.3d at 690; cf. Taylor v. Jones, 653

F.2d 1193, 1199 (8th Cir. 1981) (holding that employer

toleration of an ongoing “opprobrious racial atmosphere” which was “so pervasive and so long continuing

. . . that the employer must have become conscious of

it” was a violation of Title VII).

Employers are not to be held strictly liable for a

hostile work environment created by non-supervisory

employee harassment. Engel, 506 F.3d at 1123 (describing our standard as one of negligence); cf. Ellerth,

524 U.S. at 763, 765, 118 S.Ct. 2257 (allowing employers to raise an affirmative defense to vicarious liability

when supervisor harassment did not differ from

coworker-on-coworker harassment); Faragher v. City of

Boca Raton, 524 U.S. 775, 798-800, 118 S.Ct. 2275, 141

30a

L.Ed.2d 662 (1998) (discussing the consensus that the

negligence standard applies to claims of employer liability for coworker-on-coworker harassment). We thus

decline the Plaintiffs’ request that liability be assessed

on the basis that CRST “knew or should have known

[the] Plaintiffs would be harassed” because it was “on

notice of a serious risk that any female driver was

likely to be sexually harassed.” The Plaintiffs’ proposed

standard would require CRST to assume, on the basis

of complaints about individual male drivers, that any

and every CRST male driver would be a sexual harasser.7

Even in the face of constructive notice, an employer is not liable if it takes prompt remedial action

that is reasonably calculated to stop the harassment.

CRST I, 679 F.3d at 692-93 (depending on the particulars of a situation, “employee training sessions, transferring the harassers, written warnings, reprimands in

personnel files, or termination” are acceptable remedial options for employers to take (internal emphasis

omitted) (quoting Carter v. Chrysler Corp., 173 F.3d

693, 702 (8th Cir. 1999))). The Plaintiffs argue that,

given the constructive notice to CRST that its policies

were not preventing harassment by employees whom

it had no reason to suspect of being harassers, CRST

The Plaintiffs’ own evidence shows that Driver Wilkerson

trained Fortune on a truck without incident only a month before

Sellars complained of sexual harassment by him. Under the

Plaintiffs’ standard, CRST would be required to assume, despite

the lack of any evidence to that effect, that Driver Wilkerson

might well later engage in the conduct alleged against him.

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should have taken additional steps—beyond those that

presumably remedied the threat of repeat harassment

by known harasssers—to affirmatively prevent future

harassment.8 Although employers may be required to

escalate their response to repeated harassment by the

same coworker, see e.g. Engel, 506 F.3d at 1125, we

have not adopted the Ninth Circuit’s requirement that

an employer’s remedial response to harassment must

deter future harassment by any offender in order to be

reasonable, Nichols v. Azteca Rest. Enters., Inc., 256

F.3d 864, 875-76 (9th Cir. 2001). We decline to do so

here.

CRST’s response to those complaints of sexual

harassment of which it had actual notice was consistent with that which we previously deemed adequate as a matter of law in CRST I, 679 F.3d at 693.

The Plaintiffs nevertheless argue that CRST’s response was rendered unreasonable by its continued receipt of new sexual harassment complaints from

The Plaintiffs argue that CRST should have placed cameras on the truck to better monitor the trucks and assist with investigations. CRST contends that, in light of the time drivers

spend on the trucks, on-truck cameras would subject drivers to

near-constant surveillance. An employer is required to take reasonable remedial action in response to allegations of harassment.

The Plaintiffs offer no support for the proposition that a reasonable employer here would go so far as to guarantee that such harassment be recorded. Cf. Ellerth, 524 U.S. at 770, 118 S.Ct. 2257

(Thomas, J., dissenting) (we require only that employers act reasonably because requiring employers to take “extraordinary

measures—constant video and audio surveillance, for example . . .

would revolutionize the workplace in a manner incompatible with

a free society”).

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female drivers following CRST I. They cite in support

Tademy v. Union Pacific Corp., 614 F.3d 1132, 1148

(10th Cir. 2008), in which the Tenth Circuit concluded

that a reasonable jury could conclude that an employer’s failure to investigate recurring racial graffiti

in the workplace signaled to employees that racial harassment would not be taken seriously and thereby contributed to later harassment by other coworkers.

Tademy is distinguishable, as the Plaintiffs have not

alleged that CRST’s otherwise adequate response to

prior complaints of sexual harassment tacitly encouraged the Plaintiffs’ harassers.

Furthermore, none of the Plaintiffs have established that they suffered harassment from a known serial harasser. Contra Engel, 506 F.3d at 1125 (genuine

issue of material fact whether the employer was on actual notice of the risk to the plaintiffs from a known

serial harasser even though employer had taken adequate remedial action in response to a prior complaint

by another victim). The Plaintiffs alleged that they experienced sexual harassment by coworkers—none of

whom had a known history of harassment—after

CRST took remedial action in response to complaints

about other coworkers. Contrary to the Plaintiffs’ contention, that fact alone fails to establish that CRST’s

response was not reasonably calculated to end the harassment. Cf. id. (employer’s response to known harasser was reasonably calculated even though it was

ineffective).Furthermore, none of the Plaintiffs have

established that they suffered harassment from a

known serial harasser. Contra Engel, 506 F.3d at 1125

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(genuine issue of material fact whether the employer

was on actual notice of the risk to the plaintiffs from a

known serial harasser even though employer had

taken adequate remedial action in response to a prior

complaint by another victim). The Plaintiffs alleged

that they experienced sexual harassment by coworkers—none of whom had a known history of harassment—after CRST took remedial action in response to

complaints about other coworkers. Contrary to the

Plaintiffs’ contention, that fact alone fails to establish

that CRST’s response was not reasonably calculated to

end the harassment. Cf. id. (employer’s response to

known harasser was reasonably calculated even

though it was ineffective).

The Plaintiffs have thus not established the existence of a genuine dispute of material fact whether

CRST knew or should have known about ongoing

coworker-on-coworker harassment and thereafter

failed to take prompt remedial action that was reasonably calculated to end it.

IV. Individual Constructive Discharge Claims

Finally, we turn to the Plaintiffs’ argument that

they were not required to show deliberate action by

CRST as a prerequisite to the prosecution of a constructive discharge claim.

“Constructive discharge occurs when an employer

deliberately renders the employee’s working conditions intolerable, thereby forcing her to quit.” Engel,

506 F.3d at 1127 (quoting Tatum v. Ark. Dep’t of Health,

34a

411 F.3d 955, 960 (8th Cir. 2005)). “An employee claiming constructive discharge shoulders a substantial burden.” Blake v. MJ Optical, Inc., 870 F.3d 820, 826 (8th

Cir. 2017). However, “[w]e do not . . . require an employee to [prove] . . . that not only was the discrimination so bad that he had to quit, but also that his

quitting was his employer’s plan all along.” Green v.

Brennan, 578 U.S. 547, 136 S. Ct. 1769, 1779-80, 195

L.Ed.2d 44 (2016) (discussing the triggering of the limitations period on a constructive discharge claim). The

Plaintiffs interpret this pronouncement in Green as

tacitly overruling our constructive discharge precedent. They argue that their claims should have survived summary judgment because they showed that

“conditions were so intolerable that a reasonable person would have felt compelled to quit.”

Although Green makes clear that the employee is

not required to show that the employer subjectively intended for the employee to quit, the existence of intolerable conditions alone remains insufficient to form

the basis of a constructive discharge claim, for the intolerable conditions must be attributable to the employer. Id. at 1780 (requiring the employee to prove

“discrimination [by the employer] so bad that he had

to quit”); see also Garrison v. Dolgencorp, LLC, 939 F.3d

937, 943 (8th Cir. 2019) (to prove constructive discharge under the ADA, the employee must still show

that the employer itself created the intolerable working conditions (emphasis in original)); cf. Pa. State Police v. Suders, 542 U.S. 129, 131-32, 124 S.Ct. 2342, 159

L.Ed.2d 204 (2004) (noting that official employer

35a

action may or may not underlie a constructive discharge claim but that where there is no official action,

the employer may establish the Ellerth and Faragher

affirmative defense of proving that it took steps to

avoid or minimize the harm). As discussed above, the

Plaintiffs have failed to show such discrimination on

the part of CRST itself and therefore have failed to

show that the employer created intolerable working

conditions or took otherwise discriminatory action.

V. Conclusion

The incidents of sexual harassment alleged by the

Plaintiffs are disquieting at best, revolting at worst.

However, “Title VII . . . is not a general civility code for

the American workplace.” Burlington N., 548 U.S. at

69, 126 S.Ct. 2405. The Plaintiffs have largely failed to

overcome Title VII’s limits on employer liability. See

Ellerth, 524 U.S. at 764, 118 S.Ct. 2257 (discussing Title VII’s limits on employer liability); Faragher, 524

U.S. at 792, 118 S.Ct. 2275 (interpreting Meritor, 477

U.S. at 72, 106 S.Ct. 2399, as “establishing the rule that

some limitation [on employer liability] was intended

[in Title VII]”).

We affirm the district court’s grant of summary

judgment on the Plaintiffs’ individual retaliation

claims, hostile work environment claims, and constructive discharge claims. We also affirm the district

court’s grant of summary judgment on the pre-2015

class members’ class retaliation claim. We reverse the

district court’s grant of summary judgment on the

36a

post-2015 class members’ class retaliation claim and

remand that claim to the district court for further proceedings consistent with the views set forth in this

opinion.

37a

385 F.Supp.3d 803

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.

No. C15-117-LTS

Signed July 15, 2019

Attorneys and Law Firms

Thomas Andrew Newkirk, Newkirk Zwagerman PLC,

Des Moines, IA, Giselle Schuetz, Pro Hac Vice, Rebecca

Houlding, Pro Hac Vice, Law Offices of Joshua Friedman, PC, Joshua N. Friedman, Pro Hac Vice, Shilpa

Narayan, Pro Hac Vice, Friedman & Houlding LLP,

Mamaroneck, NY, for Plaintiffs.

Kevin J. Visser, Nicholas Petersen, Simmons Perrine

Moyer Bergman PLC, Cedar Rapids, IA, James T.

Malysiak, Pro Hac Vice, John H. Mathias, Jr., Pro Hac

Vice, Jenner & Block LLP, Chicago, IL, Jessica Ring

Amunson, Pro Hac Vice, Jenner & Block LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

ON MOTION FOR SUMMARY JUDGMENT

Leonard T. Strand, Chief Judge

38a

TABLE OF CONTENTS

INTRODUCTION....................................... [38a]

II.

BACKGROUND .......................................... [39a]

III.

SUMMARY JUDGMENT

STANDARDS .............................................. [40a]

IV.

RELEVANT FACTS.................................... [43a]

VI.

CRST’s Business Model ................... [43a]

Driver Pay ......................................... [46a]

CRST’s Policies Regarding Sexual

Harassment and Retaliation ........ [48a]

Plaintiffs’ Commencement of

Employment with CRST ................. [61a]

Plaintiffs’ Allegations Against

Other Drivers .................................... [63a]

Plaintiffs’ Separation from CRST... [84a]

ANALYSIS ................................................... [85a]

Plaintiffs’ Hostile Work Environment Claims ...................................... [85a]

Plaintiffs’ Retaliation Claims .... [112a]

Plaintiffs’ Constructive Discharge

Claims .............................................. [113a]

CONCLUSION ......................................... [118a]

I. INTRODUCTION

This case is before me on a motion (Doc. No. 216)

for summary judgment on plaintiffs’ individual claims

39a

filed by defendant CRST Expedited, Inc. (CRST). Plaintiffs have filed a response (Doc. No. 239) and CRST has

filed a reply (Doc. No. 246). I find that oral argument is

unnecessary. See Local Rule 7(c).

II. BACKGROUND

On March 30, 2017, I entered an order certifying a

hostile work environment class and a retaliation class

in this case. See Doc. No. 85. Pursuant to Federal Rule

of Civil Procedure 23(c)(4)(A), I also certified the following issues with respect to each class pursuant to

Federal Rule of Civil Procedure 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 [driver managers] for failing to promptly respond to sexual harassment complaints and

As to the Retaliation Class:

(1) Whether CRST has a policy, pattern

or practice of retaliating against women

complaining of sexual harassment by requiring them to exit the truck except

40a

when they are a lead driver or owner-operator.

Id. at 55. I noted that pursuant to Rule 23(c)(1)(C), the

order could be altered or amended before final judgment. Id. at 56.

CRST subsequently moved for summary judgment

on the retaliation claim and decertification of the hostile work environment class. See Doc. Nos. 171, 172. I

granted both motions on January 15, 2019. See Doc.

No. 204. I denied plaintiffs’ motion to amend the decertification order; motion to stay, or alternatively amend,

the trial scheduling order; and motion to certify final

judgment upon the class retaliation claims for appeal.

See Doc. No. 233. As such, only plaintiffs’ individual

claims of hostile work environment, retaliation and

constructive discharge under Title VII remain. Those

claims are now the subject of CRST’s motion for summary judgment.1 See Doc. No. 2.

III. SUMMARY JUDGMENT STANDARDS

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

Plaintiffs have indicated they are not pursuing their individual state law claims under the California Fair Employment

and Housing Act (FEHA). See Doc. No. 230 at 3, n.1.

41a

judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265

(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, 106 S.Ct. 2505,

91 L.Ed.2d 202 (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, 106 S.Ct.

1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505). Evidence that only provides “some metaphysical doubt as to the material

facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, or

evidence that is “merely colorable” or “not significantly

probative,” Anderson, 477 U.S. at 249-50, 106 S.Ct.

2505, 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, 106 S.Ct. 2505. The party moving for entry of summary judgment bears “the initial

42a

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, 106 S.Ct.

2548). 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, 106 S.Ct. 2548.

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, 106 S.Ct. 1348. 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, 137677 (8th Cir. 1996).

43a

IV. RELEVANT FACTS

The following facts are undisputed unless otherwise noted:

A. CRST’s Business Model

CRST is a leading long-haul freight transportation

company with more than 3,000 drivers at any one time.

See Doc. No. 239-1 at 1. It operates by teaming two

drivers per truck so that one driver may rest while the

other is driving, thus allowing the truck to continue

moving without violating Department of Transportation daily limitations. Id. at 2. Each truck contains a

small sleeper berth area behind the front seats containing bunk beds. Doc. No. 247-1 at 2.

CRST has four terminals, which are located in Cedar Rapids, Iowa; Riverside, California; Oklahoma

City, Oklahoma and Carlisle, Pennsylvania. Id. Drivers

are subject to the same policies whether on the road or

at the terminal. Id. When drivers join CRST, they are

trained by “lead drivers,” or “leads,” for a designated

period of time. Doc. No. 239-1 at 2. Lead drivers are

nominated by operations personnel and reviewed by

the safety department for placement into a certification class. Doc. No. 247-1 at 11. Lead drivers must pass

a lead driver training class. Id. Plaintiffs note there are

approximately 25 female lead drivers out of over 500

44a

leads at any given time, but CRST denies this based on

lack of factual support.2

Student drivers are not permitted to operate a

truck alone without completing over-the-road training

with a lead driver. Doc. No. 239-1 at 2. Leads and students are paired up by a student coordinator and a lead

driver can request to work with a particular student.

Doc. No. 247-1 at 13. The lead driver recommends to

the driver manager whether the student should be upgraded to co-driver status. Lead drivers generally work

with the same driver manager throughout the lead’s

training of successive students and no one other than

the lead’s driver manager is responsible for checking

in with students during their over-the-road training.

Id. Student drivers are road tested and separately

evaluated by a safety department trainer before being

upgraded to a co-driver. Doc. No. 239-1 at 3.

Once designated as a co-driver, the driver may

team up with another driver of his or her choosing. Id.

Plaintiffs note that this choice is limited to a list of currently available drivers. Thus, for example, if a female

driver wishes to pair up with another female driver

and one is not currently available, she will be unpaid

during the time that she waits. Id. To find a co-driver,

CRST may provide a list of potential co-drivers, whom

the individual may call to see if the driver is available.

Doc. No. 247-1 at 16. Available co-drivers are also

CRST admits that women comprised approximately 13 percent of all drivers for CRST Expedited as of August 2016. Doc. No.

247-1 at 1.

45a

posted on bulletin boards at CRST terminals and on

CRST’s Facebook page. Id. CRST also hosts “meet and

greet” sessions at its terminals to encourage drivers to

interact and find compatible co-drivers. Id. Drivers will

often meet in person before deciding to drive together.

Once the driver finds a co-driver, he or she informs her

driver manager of the proposed pairing and, if there

are no restrictions,3 the pair can begin driving and

earning pay. Id. at 17.

All driving teams are supervised by a driver manager located in Cedar Rapids, Iowa. Each driver manager has a fleet of trucks for which he or she is

responsible at any given time. Doc. No. 247-1 at 6.

Driver managers work on multiple shifts covering the

24-hour day. Id. at 7. The after-hours team size varies

depending on the day of the week, load volume and

other variables. Id. Drivers and driver managers communicate via phone, email, and CRST’s messaging system known as “Qualcomm.” Doc. No. 239-1 at 4. Driver

managers are responsible for ensuring that loads are

delivered on time. They are evaluated on metrics such

as time percentage, overall mileage truck utilization,

expenses (cents per mile) and the number of trucks in

service. Id. Plaintiffs point out that if CRST buys a bus

ticket for a driver who gets off a truck due to a sexual

harassment complaint, that expense will be counted

against the driver manager’s metric. Id. Driver managers are also responsible for driver retention and addressing conflicts amongst team drivers. Id. Plaintiffs

These may include a co-driver’s team preference or geographic distance that is too great. See Doc. No. 247-1 at 18.

46a

add that Human Resources (HR) also plays a role in

these tasks as it is responsible for investigating harassment and discrimination complaints by drivers. Id.

at 5. CRST admits that if a driver manager fails to

meet metrics, it could jeopardize his or her continued

employment, adding that it uses a progressive disciplinary system relating to driver manager performance

results. Doc. No. 247-1 at 8-9. Driver managers are

evaluated on their metrics during their annual performance review. The outcome of this evaluation determines whether they are eligible for a salary increase

or bonus. Id. at 9. CRST denies that a driver manager

would ever be penalized for stopping a truck due to a

Title VII issue. Id.

B. Driver Pay

Drivers are paid on a per-mile basis using a “split

mileage system.” This means that each driver is paid

at his or her personal rate for half of the total miles

driven by the truck (regardless of how many miles that

driver actually drives). Doc. No. 239-1 at 5. Personal

rates vary with the driver’s length of experience. The

starting rate for a new driver depends on whether the

driver has a license and prior experience; a license and

no prior experience; or a license obtained through

CRST-funded training and no experience. Id. Pay increases are triggered based on the length of service

with CRST measured according to calendar dates. As

of October 15, 2013, a student driver’s pay rate increases one cent per mile following completion of three

47a

months of service and provided that he or she has been

upgraded to co-driver status. Id. at 5-6.

The training for a student driver typically lasts 28

days if uninterrupted. Id. at 6. If interrupted, whether

due to a sexual harassment complaint or otherwise,

there is no economic detriment unless the training extends beyond 90 days.4 Doc. No. 247-1 at 86. Students

sign a contract providing that they will continue working for CRST for a specified period of time after their

training to pay CRST back for the value of the training.

Doc. No. 239-1 at 10-11. CRST’s driver contracts also

contain non-competition provisions and CRST has

sued other carriers for interfering with its driver employment contracts. Id. at 11.

Aside from the split mileage system of pay, CRST

may provide other compensation in certain circumstances. Id. For instance, a driver may receive “layover

pay” if a truck is available from empty time to dispatched pickup for a period of over 48 hours. Id. at 6-7.

Drivers may also receive compensation based on truck

breakdown or impassable highway conditions. Id.

These rates are standard regardless of the driver’s experience. Id. at 7.

Plaintiffs point out that Sellars’ training extended over two

months due to repeated interruptions due to harassment by her

trainers. CRST states that the time was impacted by factors other

than the alleged harassment. For example, Sellars chose to take

two weeks of home time in the middle of her training. Doc. No.

247-1 at 86.

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C. CRST’s Policies Regarding Sexual Harassment and Retaliation

CRST has a written policy prohibiting sexual harassment and retaliation in the workplace. Doc. No.

239-1 at 7. Plaintiffs deny that this policy is enforced.

The policy is contained in the Handbook and Statement of Policy that is distributed to drivers and home

office employees, including driver managers. Id. at 8.

The policy is also covered in a dedicated session at

driver orientation when each driver is provided a

stand-alone copy of the policy. Id. The policy states that

CRST “prohibits sexual harassment” and states that

those who report it “will NOT be subject to ANY form

of retaliation.” Id. The policy also sets forth the complaint procedure and reporting responsibilities.

CRST’s Code of Business Ethics also addresses sexual

harassment by requiring immediate reporting “to the

appropriate Supervisor or [HR].” Id. The Handbook

provides that “[i]f any employee believes he or she is

being subjected to verbal or physical harassment, the

employee should immediately contact his or her Driver

Manager or [HR] to inform them of the situation and

to request a new lead driver.” Id. at 8-9. It further provides that “[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 9. All drivers sign an acknowledgement that they

have received and reviewed the CRST Driver’s Handbook and Statement of Policy, including the policies

against sexual harassment and retaliation. Id. Drivers

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must also 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 to the Human Resources Department directly so that I may be removed from the harassing situation and so CRST may conduct a

prompt investigation.

Id.

With regard to reporting harassment, plaintiffs

note that if it occurs during business hours a driver can

call HR with her complaint, but this line is not staffed

24 hours per day and she will be directed to voicemail

if she calls during off hours. Doc. No. 247-1 at 40. CRST

notes that there are other means for a driver to report

harassment, such as contacting her driver manager by

Qualcomm or telephone, the report hotline and afterhours driver managers. Id. at 40-41. With regard to the

hotline, a staff member will take notes regarding a victim’s complaint, which will be sent electronically to Karen Carlson, Manager of Employee Relations. Id. at 41.

The hotline staff member has no authority to take any

action on a driver’s complaint. Id. at 42.

CRST contends that when it receives a complaint

of sexual harassment, the safety of the complaining

driver is its first priority. Plaintiffs deny this and cite

affidavits from plaintiffs in which they describe specific

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instances of harassment and CRST’s responses. See

Doc. No. 239-1at 9-10. CRST’s policy provides that

when a dispatcher receives a communication from a

driver alleging sexual harassment, it must take immediate steps to ensure the safety of the complainant and

advance the investigation into the complaint. Id. at 10.

Plaintiffs admit that CRST’s written policy provides

for this, but denies that it aligns with CRST’s pattern

or practice and cites documents in which dispatchers

failed to immediately separate drivers or escalate the

complaint to HR. Id.

The same goes for the dispatchers’ authority to

separate employees, arrange necessary accommodations and pay or reimburse for accommodations. While

plaintiffs admit that dispatchers have this authority,

they deny that dispatchers consistently arrange accommodations and pay or reimburse for these accommodations, alleging that employees many times have

to bear these costs. Id. at 11. Plaintiffs also deny that

CRST takes steps to separate the drivers quickly and

safely. Id. at 11-12 (citing declarations from Fortune

and others describing situations in which driver managers asked complainants to stay on the truck after

they reported harassment). See also Doc. No. 247-1 at

42-43 (in which plaintiffs cite multiple examples (some

involving plaintiffs and some involving other drivers)

in which the driver manager asked the complainant to

stay on the truck for various reasons (to work things

out with her co-driver, to see if anything further happened, to reroute the truck, to be dropped off at the

51a

next terminal, to allow time to talk with the co-driver

to see what was going on or to finish one last load)).5

CRST agrees that its policy is to remove a woman

complaining of sexual harassment off the truck unless

she is a lead driver or an owner-operator. Doc. No. 2471 at 82. This is CRST’s policy regardless of whether the

woman complaining of harassment was using the

truck before the allegedly harassing co-driver joined

her. Id. at 83. The alleged harasser may continue driving depending on the situation. Id.

When one driver makes a complaint about another

driver, CRST instructs its driver managers to remove

the complainant from the situation unless the complainant is the lead driver or the owner-operator. Doc.

No. 239-1 at 12. Plaintiffs deny that this policy applies

regardless of the nature of the complaint, noting that

all evidence cited by CRST in support involves complaints of sexual harassment. Id. Plaintiffs admit that

all employees receive notice of CRST’s policy of removing the complaining party with regard to harassment

or discrimination complaints only. Id. at 13.

CRST has disciplined some driver managers for

failing to immediately involve HR upon receiving a

complaint of sexual harassment. Plaintiffs note that

CRST does not have a practice or policy in place to

evaluate how driver managers respond to sexual

CRST denies that driver managers frequently encourage

complainants to stay on the truck and denies that allegations of

drivers other than plaintiffs are material. Doc. No. 247-1 at 4243.

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harassment complaints. Id. at 23. They also contend

that CRST produced only three forms demonstrating

disciplinary action for a driver manager’s failure to

timely or properly respond to a complaint of sex discrimination or sexual harassment since October 2016.

Id. at 23-24. See also Doc. No. 247-1 at 38-40 (in which

plaintiffs discuss three instances in which harassment

by a lead driver was corroborated, but the lead driver’s

certification was not revoked).6

CRST states its primary reason for removing the

complainant is based on safety. Plaintiffs deny this,

stating it is a legal argument rather than a statement

of fact and that their position is that CRST’s primary

reason for removing complainants is retaliation. Id. at

14. CRST contends there are numerous reasons for removing the complainant from the truck, such as allowing her to seek any necessary resources, including law

enforcement, medical attention and mental health care

and to remove her from the inherently dangerous and

stressful aspects of truck driving during a time when

she may be experiencing distress. Id. at 14-15. It also

contends that it gives the complainant the opportunity

and resources to gather and transmit any necessary

information to HR as part of the investigation. Id. at

16. Plaintiffs deny each of these statements as either

argumentative or unsupported by the evidence cited.

Id. at 14-17. They admit that when the complainant is

a student or a driver who has been harassed by an

CRST denies these statements as containing inadmissible

hearsay and being immaterial to the issues because they do not

involve the named plaintiffs. Doc. No. 247-1 at 38-40.

53a

owner-operator, removing the complainant complies

with licensing and truck ownership rules. However,

they deny that differences in pay between the complainant who has to get off the truck with no pay and

the lead driver or owner-operator who gets to continue

driving and earning money complies with any licensing or truck ownership rules. Id. at 18-19. Plaintiffs

acknowledge that in some, but not all, instances CRST

takes steps to pair the complainant with a new codriver at a later date.

On July 1, 2015, CRST promulgated a new Layover Pay Policy specific to individuals who complain of

harassment or discrimination. Id. at 19. CRST denies

that this policy was related in any way to plaintiffs’

lawsuit. Doc. No. 247-1 at 82. Plaintiffs deny that this

policy was actually implemented on that date. Doc. No.

239-1 at 19-20. They state that as of July 2016, the policy was still not included in the Handbook, was still in

“draft[ ] form” and has not been produced in any format

in this case. Doc. No. 247-1 at 82-83. CRST states that

it is an HR practice that is not intended for inclusion

in the Handbook. Id. In any event, the policy provides

that when a complaint of harassment or discrimination is made, the complainant will be removed from the

truck unless such removal would leave the truck without a qualified driver. Doc. No. 239-1 at 20. Plaintiffs

deny that the complainant is provided with sufficient

funds for lodging and transportation, which she does

not have to pay back, stating that drivers have had to

bear their own lodging and transportation costs at

times, especially before July 2015 when CRST did not

54a

cover any lodging or transportation costs.7 Id. at 21.

CRST will then pay HR layover pay starting on the

date that the employee is removed from the truck and

ending on the date the employee is paired with a new

co-driver. Plaintiffs deny this, noting that prior to July

1, 2015, there was no layover pay and that even after

July 1, 2015, the layover pay ended on the date the employee was offered a re-pairing, not the date that the

employee actually paired up with a new co-driver. Id.

at 21-22.

CRST calculates its HR layover pay based on the

highest minimum wage in the country, which it then

multiplies by 10 hours per day. Id. at 22. It initially

paid $100 per day and now pays $110 per day. Id. Prior

to July 2015, CRST states that a complainant would

have been eligible to receive the standard layover pay

of $40 per day if the delay between re-pairing lasted

over 48 hours. Plaintiffs deny this stating that the

written policy for the standard layover pay (“[t]he

truck must be available from empty time to dispatched

pickup time no less than 48 hours to qualify for 1

Plaintiffs state that CRST instituted a new policy in July

2015 in which women complaining of sexual harassment were not

required to pay back hotel and cab fares related to being pulled

off the truck. Doc. No. 247-1 at 84. CRST denies this was a new

policy. Id. Plaintiffs also state that Carlson did not know in July

2016 whether CRST had a policy of covering hotel expenses associated with a driver being pulled off a truck due to a Title VIIrelated complaint. CRST states that Carlson testified it was her

understanding that hotel and transportation fees were paid. Id.

at 84-85.

55a

layover”) excludes the situation in which a driver is removed from the truck. Id. at 22-23.

When HR receives a complaint of sex discrimination or sexual harassment, it enters it into its “Positive

Work Environment Employee Relations” spreadsheet

and commences an investigation. Plaintiffs dispute

that CRST immediately commences an investigation

for lack of support. The HR investigator will examine

whether there are any prior complaints against the accused driver,8 consider any relevant documents or communications, interview any available witnesses,9

interview the individual accused of harassment and

take into account any admissions by the accused

driver. The investigator10 will eventually determine

Plaintiffs note that Carlson, CRST’s Rule 30(b)(6) witness,

testified that prior complaints do not impact CRST’s determination as to whether the instant complaint may be deemed corroborated. Doc. No. 239-1 at 25-26.

Plaintiffs dispute that HR interviews available witnesses

as Fortune provided the name of a witness with regard to one of

her complaints and the investigation indicates that HR left only

a single message for this potential witness. Id. Plaintiffs also

point out a complaint by Lopez in which the investigation form

listed potential witnesses, but did not indicate any attempt to contact them. Id. at 26-28.

From June 2013 to approximately April 2014, Carlson was

responsible for investigating all complaints. In April 2014, Chelsea Stoll, an Employee Relations Representative began conducting investigations, which were supervised by Carlson. Cassie

Burrill replaced Stoll in early 2015. In late 2015, an additional

Employee Relations Representative, Megan Knoot, joined the

team and was also under Carlson’s supervision. Carlson conducts

investigations and supervises Burrill’s and Knoot’s investigations

into employee complaints. Doc. No. 247-1 at 32. Carlson reports

to Angie Stastney, Director of HR. Id. at 33.

56a

whether the complaint can be corroborated. The parties disagree on what is necessary for CRST to find

that a complaint is corroborated. CRST maintains that

corroboration can be from a variety of resources and

the test is whether HR is “able to identify that the action was confirmed and that it took place.” Id. at 28.

Plaintiffs cite Carlson’s testimony, in which she stated

that a complaint could not be corroborated without

eyewitness testimony or an admission from the accused harasser. Id.

CRST denies that this is its policy or that it has

ever had such a policy. Id. at 29. CRST states that it

may find corroboration based on statements from the

accused and accuser, witnesses, pictures or messages.

See also Doc. No. 247-1 at 33-34. Plaintiffs cite evidence

in which an accused driver admitted to touching Lopez

and making an inappropriate comment, stating that it

was a “joke,” and Carlson conceded his conduct would

be a violation of the sexual harassment policy. The investigation form for that incident does not reflect a

finding of corroboration or that the accused driver was

disciplined. Doc. No. 239-1 at 29.

CRST states that even when a complaint is not

deemed corroborated, it nonetheless takes remedial

measures by changing the accused male driver’s status

to “male only” and is never reassigned to drive with the

accuser. Plaintiffs disagree this is a remedial measure,

stating that it is not disciplinary,11 does not reduce the

CRST disagrees stating that it reduces the universe of codrivers a male-only driver is able to pair with, which reduces his

57a

driver’s pay and is not considered a disciplinary warning. Plaintiffs also cite evidence in which Carlson admitted that she changed an alleged harasser’s status

to “male only” to provide him “a measure of protection

from a similar claim arising in the future.” Id. at 30.

The “male only” designation lasts indefinitely, can be

removed only by HR and produces an error message in

the driver database if anyone attempts an impermissible pairing. The accused driver will also receive a copy

of CRST’s policy prohibiting harassment via certified

mail. Id. at 30-31. This action is not disciplinary in any

way and the policy is also sent to the accuser. Id. Plaintiffs state that it is CRST’s “standard response” to complaints of sexual harassment to designate the accused

driver to “male only.” Id. at 34. CRST disagrees that

the cited material refers to CRST’s “standard response,” but affirmatively states that if there is a complaint of sexual harassment of discriminatory behavior

by a female against a male, the accused male driver

will be changed to a “male only” team preference and

never reassigned to drive with the accuser. Id.

CRST states that if a complaint is corroborated,

the accused driver will face disciplinary action up to

and including termination. Doc. No. 239-1 at 31. Plaintiffs dispute this stating that even if this is CRST’s

written policy, it is not enforced. See also Doc. No. 2471 at 38. They cite six examples of complaints from female drivers (none plaintiffs) that were corroborated

but discipline was not imposed on the accused driver.

efficiency on the road and load opportunities. Doc. No. 247-1 at

35.

58a

Doc. No. 239-1 at 32-33. HR does not impose the discipline but recommends a course of action to the respective driver manager. Doc. No. 239-1. at 33. Plaintiffs

deny that it is a “recommendation” from HR, citing

deposition testimony from driver managers in which

they indicate they do what HR instructs them to do

and have no input of their own. However, plaintiffs

state in their own statement of facts that the driver

manager has authority to decide what discipline

should be imposed, subject to being overruled by their

supervising operations manager. Doc. No. 247-1 at 35.

CRST states that discipline may involve verbal

warnings, written warnings, counseling sessions with

HR or other departments, removal of lead driver certification or termination. Doc. No. 239-1 at 34. Plaintiffs

note there is not factual support that counseling sessions have ever taken place outside of Positive Work

Environment training, which takes one to three hours

and has no actual disciplinary impact (as it does not

impact a driver’s pay, is not a suspension or a written

warning). Id. Carlson testified that “any corroborated

harassment . . . of a Title VII nature” will result in termination. Doc. No. 247-1 at 36. However, she noted that

some circumstances may not amount to true sexual

harassment or discrimination under Title VII guidelines. Id. Plaintiffs bring up instances in which HR

found the complaint was corroborated, but the driver

was not terminated or his lead certification revoked.

Id. at 36-39. CRST objects to this evidence as containing inadmissible hearsay (in the form of complaints by

drivers recorded by HR investigators) and immaterial

59a

to the issues as they do not involve complaints by

plaintiffs. Id. at 36-39.

Plaintiffs state that CRST has been aware of allegations of sexual harassment from its female drivers

for years. Id. at 21. They cite lawsuits filed by the

Equal Employment Opportunity Commission (EEOC)

against CRST, including one in which 270 women were

identified as having been sexually harassed while

working at CRST. Id. at 22. CRST denies that any of

these prior lawsuits are material to the issues in this

case. Id. Plaintiffs also state that beginning in December 2013, CRST had logged over 60 complaints of sexual harassment in the preceding 14-month period,

beginning in October 2012.12 Id. at 23.

Plaintiffs state that in late 2013 or early 2014,

Carlson suggested installing cameras on CRST trucks

during a meeting with CRST’s President and its Director of HR.13 Id. at 28. She received a “neutral response”

to the suggestion. Id. Around August 2014, CRST

To the extent this statement is based on CRST’s PWE

charts containing drivers’ alleged complaints as recorded by

CRST investigators, CRST argues such evidence is hearsay and

inadmissible. It denies that complaints of individuals other than

the named plaintiffs are material to the issues in this case. Id. at

23. Plaintiffs list each complaint beginning in November 2012. Id.

at 23-28. I disagree that the complaints constitute hearsay as

plaintiffs are offering the entries for purposes of demonstrating

CRST’s notice of past complaints of sexual harassment.

CRST denies that any of the statements discussed in this

paragraph are material to the issues. Doc. No. 247-1 at 29-31. Because plaintiffs rely on some of these facts to make their arguments, I have included them in this section and will discuss their

relevance in the analysis.

60a

created a contest in which employees could submit

ideas relating to “how to make the environment great

for the drivers.” Id. at 29. Carlson again suggested installing cameras on team trucks. She stated, “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.

She received no substantive response to this suggestion. Id. She also suggested mandatory time on the

truck for each driver manager to “see what life on a

truck is like,” noting that drivers would routinely say

that driver managers had no idea what it was like on

the road and she agreed. Id. Carlson also recommended an “undercover boss” program to monitor the

performance of lead drivers because she received the

most complaints about them. Id. at 30. She also felt

there should be further training for lead drivers and

that the criteria for promoting a driver to lead was insufficient. Id. at 30-31.

In 2016, HR discussed a potential change in policy

to terminate or otherwise suspend CRST managers

who failed to report complaints of sexual harassment.

Plaintiffs contend CRST has not produced any records

of policy changes with respect to disciplining managers

who fail to report complaints. CRST admits that no

policy change occurred with respect to discipline of

managers, noting its policy already provides that managers may be terminated for failing to report complaints. Id. at 31.

61a

D. Plaintiffs’ Commencement of Employment

with CRST

Cathy Sellars attended CRST’s new driver orientation in Riverside, California, in December 2013. She

signed the acknowledgment of the anti-harassment

policy on December 11, 2013, and acknowledged receiving the driver handbook on December 16, 2013. Doc.

No. 239-1 at 34-35.

Leslie Fortune attended new driver orientation in

Cedar Rapids, Iowa, in October 2013. She signed the

acknowledgment of the anti-harassment policy on October 14, 2013, and acknowledged receiving the driver

handbook that same day.

Claudia Lopez attended trucking school at Hawkeye Community College in Waterloo, Iowa. After graduation, she attended CRST’s new driver orientation in

Cedar Rapids, Iowa, in May 2014. Id. at 35. She signed

the anti-harassment policy acknowledgment and

acknowledged receiving the driver handbook on May 8,

2014. Id. at 35-36. CRST asked Lopez to repeat Positive Work Environment training after she was accused

of sexual harassment. Lopez argues this was a false

accusation by an individual who caused Lopez to feel

threatened herself. Id. at 36. On May 13, 2014, a CRST

shuttle driver made a complaint against Lopez stating

that she threatened to claim he tried to rape her if he

did not take her where she wanted to go. Lopez states

she felt threatened by the shuttle driver and told him

she would scream that he tried to rape her if he tried

to do anything other than take her to the CVS store

62a

where she was permitted to go get medicine. Id. Lopez

told HR that she was joking about the incident because

“after being sexually harassed previously while undergoing CRST training, she was nervous, defensive, and

still felt threatened for her safety.” Id. at 36-37. She

was counseled about the incident and received retraining on CRST’s policies. Id. at 37.

Sellars was paired with a female lead driver to

complete her training but stopped due to an alleged injury that was the subject of a workers’ compensation

claim. Id. Sellars states she was injured during a sexual assault by a previous CRST trainer, Dwain Monroe,

and that this injury was the cause of her receiving

workers’ compensation and hospital treatment, which

prolonged her training. She denies that she was paired

with a female lead driver to complete training but did

not do so due to her injury. Id.

Fortune completed her training with Lydell

Wilkerson. She states that she was paired with him after she complained about being sexually harassed by

her previous trainer, James Woods, and upon getting

off Woods’ truck, had to drive from Iowa to California

and then take a bus from California to Arizona to meet

with Wilkerson. Id. at 37-38.

Lopez completed training with the first driver

with whom she was paired.

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E. Plaintiffs’ Allegations Against Other Drivers

Sellars and Lydell Wilkerson

Sellars drove for CRST from December 2013 to

March 2014. Prior to Sellars’ December 2013 allegations, Fortune drove with lead driver Wilkerson and

had a good driving experience. Id. at 38. On Sellars’

first day at the Riverside Terminal in December 2013

she alleges that Wilkerson stared at her, made offensive remarks to her and forcefully grabbed her while

demanding to know why she would not sleep with him.

Id. Sellars left the room when he first made these offensive remarks, but she alleges that he approached

her again and told her he wanted to “go down on [her]”

and “eat [her].” Id. Sellars reported Wilkerson’s conduct to the front desk. In a separate incident, Wilkerson allegedly began staring at Sellars while she was

talking to another person. Sellars asked what he

wanted and he came and stood directly behind her. She

then told him she was showing another driver photos

of her family and he left. Id. at 39. Another time,

Wilkerson grabbed Sellars’ shoulder and demanded to

know why she would not sleep with him. Id. Each of

these incidents occurred in the CRST terminal before

Sellars began training on the trucks.

Sellars complained to the CRST Riverside Terminal Manager, Alvin Hoggard, about Wilkerson. Id.14

Sellars alleges generally that while she was at the Riverside Terminal, she heard men make offensive sexual remarks

about other women and women in general, including but not limited to comments about the way women’s bodies were built, how

64a

Sellars adds that she also reported the conduct to Carlson and never heard back regarding her report. However, she learned that Wilkerson was sent out on the

road to pick up another female student driver. Id. at

40. She did not encounter Wilkerson again. Id. at 41.

See also Doc. No. 247-1 at 46-47 (describing Sellars’ interactions with Wilkerson). She later learned that

Wilkerson was still employed by CRST as a driver. Id.

at 47.

Sellars and Jesse Radford

Sellars began driving with Radford in January

2014. Id. at 48. She states Radford made sexual remarks to her, such as telling her she had a “nice ass”

and could “see where Lydell was coming from.” Id. Before getting on the truck, Sellars warned Radford that

she would not drive with him if he believed anything

sexual would happen between them and Radford

agreed to stop making sexual comments. Id. Sellars

spent three days and two nights with Radford on a

truck. Doc. No. 239-1 at 40. She states that on the first

night on the truck, Radford began masturbating in her

presence and asked if she would like “to join” him to

which she responded “no.” Doc. No. 247-1 at 48. On the

second night, Radford attempted to remove her shirt

they were dressed and the attractiveness of women who were in

the terminal. Doc. No. 247-1 at 45-46. For instance, men would

tell her “you have a nice ass, lady” or “I’d like to tap that ass.” Id.

She observed Hoggard walking around the terminal and sitting

in the cafeteria while such comments were openly being made at

such volume that he would have heard them. Id.

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while she was in her bunk. Id. at 49; Doc. No 239-1 at

41-42. She struggled with him and told him to stop, but

Radford was able to lift the shirt up to her head before

she could move to the passenger seat. Doc. No. 247-1 at

49. She states she spent close to six hours there before

a dispatcher arranged to have her get off the truck and

take a bus to the terminal. Id. at 41-42.15

On January 7, 2014, Sellars reported to her driver

manager that she did not feel safe with Radford. Id. at

42. She did not contact her fleet manager until more

than five hours after the alleged incident. Id. Sellars

told the fleet manager she wanted to get off the truck

and he arranged for her to go to the nearest town

where she got off the truck. Id. CRST claims it paid for

a hotel room and bus ticket back to the terminal. Id.

Sellars states she had no hotel or bus expenses because

dispatch arranged to have her brother-in-law take her

back to the terminal immediately after she exited the

truck. Id. at 42-43. She was reimbursed $40 for taking

a cab on the day she exited the truck, but incurred no

other expenses. Id. at 43. She did not earn any money

during the time she was off the truck. Doc. No. 247-1

at 50.

Carlson interviewed Sellars that day regarding

her complaints about Radford. She also interviewed

Radford who denied Sellars’ claims. Sellars did not see

This conflicts with CRST’s understanding of the incident,

which is that she immediately got off the truck when Radford attempted to remove her shirt and then got back on in the morning.

Id. at 42.

66a

Radford again. Doc. No. 239-1 at 43. Radford’s team

preference was changed to “male only.”

Sellars and L.W.16

On January 26, 2014, Sellars left Carlson a

voicemail stating she had a video of her lead driver,

L.W., driving drunk. Id. Sellars later testified that L.W.

made a comment (or comments, according to Sellars)

about her body. Id. at 43-44. Sellars testified she first

reported L.W.’s conduct to CRST the morning she was

separated from him. Sellars states the cited testimony

shows that she reported L.W.’s misconduct when she

told fleet managers she wished to exit the truck. This

occurred while he was off the truck and before he returned the next morning. Id at 44. In any event, Sellars

was separated from L.W. the same day she requested.

The misconduct allegedly occurred near Laredo, Texas,

and CRST provided a hotel room and bus ticket back

to Riverside, California. Id.

Carlson called Sellars back on Monday after receiving her Sunday voicemail on January 26, 2014. Id.

Sellars denies that Carlson interviewed her regarding

For the reasons set forth in Judge Mahoney’s order (Doc.

No. 179) of June 13, 2018, I find that the identities of any accused

harassers whose names have not already been disclosed in a publicly-filed document should remain confidential. I further find,

however, that there is no longer a need to maintain in confidence

the names of other CRST employees who happened to be involved

in the relevant events, as they are not accused of engaging in

shameful conduct. Thus, for example, note 10, supra, refers to

those employees by their names.

67a

all of her complaints about L.W.17 Id. at 44-45. Carlson

also interviewed L.W., but Sellars denies that she interviewed him regarding her allegations of sexual harassment. Id. at 45. She did not drive with L.W. again.

Id.

Sellars and Dwain Monroe

On February 10, 2014, Sellars was talking to Monroe and another person about their families and sharing photos. Id. at 46. Monroe showed a photo of a family

member, and while scrolling through photos, allegedly

displayed a pornographic photo for a second or less.

Sellars adds that Monroe purposefully stopped at the

pornographic photos to look at them. Id. Monroe told

Sellars he had accidentally downloaded the photos.

Monroe then showed Sellars and the other person a

video he created wherein it appeared he was tied up

with rope and held at knifepoint by two stuffed animals. Monroe then told Sellars he “was going to do that

to [her].” Id. Later, while training on the road, Monroe

told Sellars that he and his friends wished to tie her

up and “do things to [her.]” Id. at 46-47. Sellars told

him that was not going to happen. Id.

The parties agree that CRST’s records do not reflect any

contemporaneous report by Sellars alleging sexual harassment by

L.W. Id. at 45. However, Sellars denies that the lack of records

does not necessarily reflect that she did not contemporaneously

report such allegations. Sellars maintains that she told the dispatcher about all of her complaints when she told him or her she

wanted off the truck. Id.

68a

While they were on the road, they got into a dispute about who would drive next after stopping to get

gas. Id. at 47. Sellars denies that the issue of “who

would drive” was the cause of the dispute, stating that

after Sellars rebuffed Monroe’s suggestion to tie her

up, he became angry with Sellars, taking photos and

videos of her while driving. Id. The overnight dispatcher communicated to both her and Monroe simultaneously about their dispute. Sellars alleges that

Monroe shoved her into the passenger seat and forced

her to sit down saying she would regret calling dispatch and complaining about him. Id. She also alleges

Monroe had a knife during this time that he kept either on the dash, in his hand or on his right leg while

driving and pointed it at Sellars while threatening her

that she could not leave the truck. Id. at 47-48. Police

stopped Monroe after she was off the truck, searched

the truck and found no knife. Id. at 48.

Sellars had asked Monroe to let her exit the truck

at some point. Dispatch did not tell her to exit the truck

until they reached the next town and dispatch learned

Monroe had a knife. Id. CRST states that Sellars was

told to get off the truck within approximately an hour

of having contacted the dispatcher. Id. However,

Sellars states it was longer because the Qualcomm system went down for an hour after she contacted dispatch, and when it came back online dispatch

contacted her and had her exit the truck. At this point,

the drivers were in the next town. She states the Qualcomm messages show that dispatch did not return her

messages until at least a couple hours had passed. Id.

69a

at 48-49. Dispatch also told Sellars to contact 911.

However, Sellars states that it did so only after Sellars

indicated over the course of several messages spanning

a couple hours that she would dial 911 unless something was done to alleviate the situation sooner. Id. at

49. She did end up calling 911.

CRST provided a hotel room and bus ticket back

to a terminal. Id. Sellars received layover pay and was

reimbursed for hotel expenses. However, she contends

she had to pay for these expenses as CRST later recouped them from her paycheck. Id. at 49-50.

Carlson contacted Sellars on February 13, 2014, to

interview her about the Monroe situation. Id. at 50.

Carlson provided Sellars with the number of CRST’s

Employee Assistance Program and encouraged her to

use their services. Carlson also interviewed witness

Dawn Mann on February 13, 2014, about the incident

in the terminal when Monroe showed them the video

he made. Id. Sellars had also been texting Mann during the events on the truck. Doc. No. 247-1 at 55. Mann

confirmed Sellars’ account of the video, that she saw

the knife that Monroe carried and described the text

messages Sellars had sent her while on the truck.18 Id.

Carlson did not make any attempt to obtain those text

messages. Id. at 56.

The Qualcomm records from Sellars stated: “This

is Cathy [drive] 946B where am I going [co-driver] said

I had to stay on the truck till he put me off and he said

CRST argues these statements are inadmissible hearsay.

70a

and did a couple things I cant [sic] send through here

but my daughter and two friends know about it if I

have to I will call 911” and “I just sent a message to

you this is 946B he wont [sic] tell me whats [sic] going

on says I have to go with him he has a knife out on the

dash in front of him do I call 911 he[‘]s mad at me.” Id.

at 56-57. Carlson concluded: “This appears to be a hesaid/she-said situation. Corroboration of wrongdoing

could not be made.” Id. at 57. Monroe was told to have

no further contact with Sellars. Sellars was paired

with a female lead driver to complete her training, per

her request. Doc. No. 239-1 at 50.

On March 18, 2014, Sellars met with Carlson and

CRST Expedited President Cameron Holzer. Doc. No.

247-1 at 58. She had previously spoken with Holzer regarding the sexual harassment she experienced. Id. at

59. None of the “Action Plan” items discussed during

the meeting with Holzer addressed the issue of remediating recurring sexual harassment at CRST. Id.

Sellars received medical treatment due to the physical

assault she suffered from Monroe and was placed on

workers’ compensation after discussing the need for

medical attention with Holzer and Carlson. Id.

Fortune and Stephen Wood

Fortune was a CRST employee from around November 2013 to around January 2015. Doc. No. 247-1

at 70. She alleges that during her training as a student

driver at the Cedar Rapids Terminal, she heard daily

offensive remarks from male trainers and co-drivers

71a

about either herself or other women, including men

coming on to her or propositioning her for sex, men

making comments about women’s bodies such as, “man

she’s got ass on her” or “I’ll hit that” and men talking

about which women they had slept with. Id. at 71.

Fortune was paired with Wood around November

2013. Id. Fortune alleges that she and Wood were driving in a rental car from Cedar Rapids, Iowa, to Riverside, California, to reach a truck. Doc. No. 239-1 at 51.

Fortune proposed taking turns driving so they would

not have to spend a night in a hotel, but Wood wanted

to stay in a hotel. Wood made comments about Fortune’s appearance, asked what she liked sexually and

stated he had “never been with a colored woman before.” Id.; Doc. No. 247-1 at 71. Fortune rejected his advances. Id. at 72. On the first night of the two-day trip,

the drivers shared a hotel room after Wood claimed

there was only one room containing only one bed and

stating “that’s ok, we can share.” Id. The room had two

beds and Fortune refused to share a bed with Wood

even though he continued pressing her to do so. Id.

Wood came out of the shower in his boxers (with his

boxers exposing his penis), sat on the bed and asked

Fortune to rub his back. Doc. No. 239-1 at 51. He also

told Fortune “I haven’t had pussy in six months, if you

want to pass you might want to take that into consideration.” Doc. No. 247-1 at 72. Fortune told him “no”

and proceeded to sleep in her own bed with her coat on.

Id. at 73.

Fortune did not contact HR or her driver manager

during the drive to report Wood’s conduct. Doc. No.

72a

239-1 at 51-52. She testified that she wished to speak

to the driver manager while at the hotel, but Wood told

the driver manager they were getting into the car and

could not talk further. Id. at 52. Fortune complained to

a safety representative and submitted a written complaint regarding Wood’s conduct, but HR did not maintain or produce this statement.19 Doc. No. 247-1 at 73.

At Riverside, Fortune spoke with CRST’s safety

personnel about Wood’s conduct and they responded by

getting her and her things off Wood’s truck. Doc. No.

239-1 at 52. Fortune then submitted a written complaint about Wood, which Carlson received on November 24, 2013. Carlson attempted to reach Fortune to

conduct an interview on several occasions, but Fortune

did not return her calls. Id. Carlson interviewed Wood

and other witnesses. However, Fortune points out the

other witnesses were not related to her sexual harassment complaints, but complaints of Wood texting and

driving. Id. at 52-53. Carlson found that Wood gave untruthful statements and Wood’s employment was terminated. Fortune denies that his employment was

terminated as a result of her sexual harassment allegations, but rather for texting and driving. Id. at 53.

Fortune and James Parker

Fortune was paired with her first co-driver, Parker,

around November 2013. Doc. No. 247-1 at 73. Fortune

alleges Parker watched pornography and she once

CRST denies that this statement is supported by the cited

material. Doc. No. 247-1 at 73.

73a

caught him engaging in a sexual act.20 Doc. No. 239-1

at 52-53. Fortune could not recall whether Parker ever

physically touched her, but he made sexual advances

toward her while he was a trainer and repeatedly

asked her to have sex with him. Id. When she turned

him down, he would make things difficult for her, such

as refusing to help her back up the truck or blaming

weight-load issues on her. Id. at 53-54. He also told her

he was the type of guy that would hit a woman if he

had to. Id. While waiting for a second team of drivers

to pick up part of their load, Parker again propositioned Fortune to have sex. Id. at 54. She states Parker

forced her out of the truck and threw her belongings

out after she refused to have sex with him. Fortune

spoke to her fleet manager when she was off the truck.

She states she had spoken to fleet managers prior to

getting off the truck about her problems with Parker,

including his sexual advances, to which one of the fleet

managers laughed and stated “you guys can work this

out.”21 Id. Fortune rode in a car with two other drivers

back to the Riverside terminal. Id. at 55. Upon

Fortune alleges that Parker “regularly” watched pornography and masturbated while Fortune was on the truck and on at

least one occasion ejaculated in her presence. Doc. No. 247-1 at

74. CRST denies that the statement that Parker regularly

watched pornography and masturbated while Fortune was on the

truck is supported by the cited material. Id.

Neither Fortune’s declaration nor her deposition indicate

that she made a complaint to her fleet manager about Parker

prior to getting off the truck. See Doc. No. 239-5 at 21-22; Doc. No.

216-4 at 17. Fortune’s declaration states her fleet manager told

her “you guys can work this out” in response to Parker forcing her

off the truck and not a previous complaint. Doc. No. 239-5 at 22.

74a

returning to the terminal, Fortune alleges Parker

spread rumors that Fortune was a “lot lizard” (trucker

slang for prostitute). Doc. No. 247-1 at 75.

On December 29, 2013, Fortune provided a written

statement detailing her complaints against Parker.

Doc. No. 239-1 at 55. Carlson interviewed Fortune on

January 15, 2014. Id. She also interviewed Parker and

one witness. Fortune denies that she interviewed any

of the driver managers Fortune spoke with and other

witnesses Fortune identified. Carlson made one attempt to contact each witness, but did not follow up

with any of them and reached her conclusion that

there was no corroboration of Fortune’s complaints

that same day. Id. at 55-56. Carlson changed Parker’s

status to “male only.”

Fortune and Jamal E.

Fortune alleges there were two male drivers by the

name of “Jamal” who sexually harassed her. One

threatened to rape her and the other asked her to send

him a recording of herself urinating. Id. at 56-57. She

also admits that a “Jamal” commented on her physical

appearance. She denies that Jamal E. is the “Jamal”

who threatened to rape her. While Jamal E.’s conduct

is unclear, Fortune spoke to the night fleet manager

about him. Id. at 57. The manager asked if there was a

place nearby where she could go to and feel safe. Id.

Fortune called friends from her motorcycle club and

they met her at a gas station in St. Louis, Missouri,

that night. Id. Her friends dropped her off at home.

75a

Fortune continued on the truck with Jamal E. for

eight more days before their trip ended in Riverside,

California, on January 16, 2014. Fortune denies that

Jamal E. is the individual who threatened to rape her22

and denies that these records are accurate. Fortune denies that she was paid for her miles during the trip

when the individual threatened to rape her. Her recollection of that incident took place around March 6,

2014, rather than earlier in 2014 as the records related

to Jamal E. reflect. Id. at 58-59. Fortune’s fleet manager contacted her and sent her to an HR representative. Fortune had no further contact with Jamal E. She

does communicate with a different person named

“Jamal” who worked at CRST. Id. at 59.

Fortune and J.S.

J.S. declined a proposition from a prostitute in

front of Fortune by stating, “[W]ell, I have a co-driver

here, I would love to but I can’t.” He told Fortune, “she

actually made my dick hard.” Id. Fortune found J.S.’s

response to the prostitute to be sexually offensive. She

With regard to the “Jamal” who did threaten to rape Fortune, she alleges that this occurred around March 2014. Doc. No.

247-1 at 76. He stated “you’re going to give me some ass, either

I’m going to take it or you’re going to give it to me.” Id. Fortune

complained to the off-hours driver manager about this threat and

exited the truck. Id. Her regular driver manager was not told

about the situation and called Fortune, angry that she had abandoned a load. Id. Fortune received no pay while off the truck as a

result of her complaint. Id. She claims she never received a response to her complaint. Id. CRST states it has no record of Fortune’s complaint and separation from co-driver Jamal E. Id.

76a

did not complain to her driver manager while she was

on the truck. Fortune states that she felt compelled to

leave the truck after J.S. called her a “psychotic fat

black bitch” and told her that the sexual abuse that she

experienced as a child was deserved. Id. at 59-60. Fortune complained to the terminal manager and this

complaint was relayed via the Qualcomm system to

her fleet manager and HR. Fortune requested to leave

the truck and stop driving with J.S. after he made the

above remarks. They stopped driving together.

On April 15, 2014, Fortune provided a written

complaint to HR. A representative interviewed her regarding her complaints about J.S. on April 22, 2014.

Another HR representative interviewed J.S. that same

day. Id. at 60. CRST required J.S. to undergo retraining

on CRST’s anti-harassment policies. Id. at 61.

Fortune and Hans Davis

Fortune began driving with Davis around May

2014. Doc. No. 247-1 at 77. Fortune alleges Davis commented on her physical appearance. Doc. No. 239-1 at

61. Davis expressed a desire to sleep with Fortune,

asked her to take an AIDS test and share the bunk

with him and told her that he had had sex with a previous female co-driver. Id. Fortune rejected his advances. Doc. No. 247-1 at 78. She alleges that as she

continued to reject his advances, he became angry and

hostile, for instance, by refusing to help her back up

the truck. Id. at 79. Fortune states that when she

learned Davis planned to quit his employment with

77a

CRST, he threatened her to the effect that she would

not want to see what would happen if she alerted management to his intention to quit. Id. On May 23, 2014,

Fortune reported a complaint about Davis to her driver

manager. Doc. No. 239-1 at 61. The driver manager told

her to notify dispatch if something happened. Doc. No.

247-1 at 78. That day, the driver manager arranged for

Fortune to get off the truck in Oklahoma City and provided her with a hotel room for the evening. Doc. No.

239-1 at 61.

The next day, Fortune made a complaint about Davis through CRST’s ethics hotline at a terminal in Oklahoma. Id. at 62. CRST contends Carlson interviewed

Fortune and Davis regarding her complaints of concerning text messages. Fortune denies this for lack of

factual support, stating that CRST has cited no business records documenting this interview. Id. Fortune

drove solo to the Riverside terminal to find a new codriver. CRST states that Davis was instructed to stop

texting Fortune and HR contacted Fortune on June 2,

2014, to confirm that Davis was no longer messaging

her. Fortune denies this based on lack of support in the

record.

10. Fortune and Charles Pickens

Fortune began driving with Pickens around August 2014. Doc. No. 247-1 at 80. Fortune alleges Pickens started touching her inappropriately, including but

not limited to grabbing her buttocks and waist. Id. Fortune told him to stop and she did not like it. Id. On one

78a

occasion, while standing over her bed, Pickens told her

he wanted to get in bed with her and she told him no.

Id.; Doc. No. 239-1 at 63. Pickens continued expressing

an interest in having sex with her. Id. Fortune alleges

Pickens would not leave until she told him about

knives she kept under her pillow to protect herself.

Doc. No. 247-1 at 81.

Fortune complained to her fleet manager who responded they needed to get her off the truck and could

route her to Riverside. CRST does not have records of

any complaints Fortune made about Pickens. To the extent this implies that Fortune did not report a complaint regarding Pickens, Fortune states she did report

Pickens’ conduct to her fleet manager. Doc. No. 239-1

at 63-64. She has not seen Pickens since she quit driving with him.

11. Lopez and J.M.

On Lopez’s first day of training at a Red Roof Inn

in Iowa around April 2014, J.M. (a fellow student

driver) approached Lopez and another female student

and asked them personal questions about their marital

status. Doc. No. 247-1 at 61. He commented to the female student that Lopez’s shirt was “too long,” implying that he could not see her buttocks. Id. The next day,

J.M. approached Lopez and began touching her back,

scratching it numerous times over her objections while

she was on the phone with her mother. Id. Eventually,

Lopez was able to get out of her chair and exit into an

elevator. Id. J.M. continued to accost Lopez, making

79a

her nervous. Id. at 62. He would tell her she was “very

pretty” and, while laughing, asked if she had spoken to

her mother again. Id. J.M. told Lopez’s friend, in front

of Lopez, that after his road training, he was “coming

back for [Lopez] to rape [her] and marry [her] and take

[her] with him.” Id. J.M. also tried to force Lopez to hug

him. See Doc. No. 239-1 at 64.

Lopez reported J.M.’s comments and conduct over

the phone and via email. Doc. No. 247-1 at 62. Lopez

told HR that she had been in contact with J.M. for

about a week and a half and made the complaint

against him on the fourth day. Doc. No. 239-1 at 64.

CRST states that Stoll contacted Lopez on April 17,

2014, and conducted an interview. Id. at 65. Lopez denies ever speaking to Stoll. CRST states that Stoll also

interviewed J.M. and told him to have no further contact with Lopez. Id. Lopez denies this based on lack of

factual support. J.M. admitted to HR that he scratched

Lopez’s back, that she broke down crying in front of

him and that he told her that she was “very pretty.”23

Doc. No. 247-1 at 63. HR never interviewed the witnesses that Lopez identified during the investigation.

Id. J.M.’s team preference was changed to male only.

Doc. No. 239-1 at 64. Lopez has not spoken with nor

seen J.M. since he left training and since she spoke to

HR. Id.

CRST argues these statements from J.M. constitute inadmissible hearsay.

80a

12. Lopez and Charles Smith

In general, Lopez alleges that when she spent time

at Riverside Terminal and Cedar Rapids Terminal,

male drivers frequently came on to her sexually, making comments such as “is it true what they say about

Puerto Rican women, that they’re hot?” Doc. No. 247-1

at 64. Lopez began driving with Smith around July

2014. Id. She alleges that Smith made sexual advances

towards her, would purchase things for her, tell her “I

like big women” and would attempt to kiss her. Id.

Lopez alleges that Smith commented on her physical

appearance, woke her for a driving shift change by

touching her hair, asked her to shower with him and

told her that she should appreciate him. Doc. No. 2391 at 66.

Lopez adds that Smith touched her back and hair

on more than one occasion even after she previously

told him not to touch her when waking her up. Id.

Smith also laid in bed with her against her will and

repeatedly attempted to pressure her into reciprocating his advances, including attempts to kiss her. Id. He

would become angry with her and subject her to verbal

abuse when she did not reciprocate. Id. This conduct

took place during a trip from Riverside to Florida. Id.

After getting off the truck at some point to get directions, Lopez saw Smith drive away with the truck,

whereupon a driver manager contacted Lopez and

Lopez complained about Smith’s conduct and harassment. Doc. No. 247-1 at 66. The driver manager directed the truck back to Lopez so that she could gather

her belongings, but insisted that Lopez exit and leave

81a

the truck to Smith, despite her pleas to make Smith

exit given that she had procured the truck herself at

the prior terminal. Id. Her driver manager arranged a

hotel room for her that evening. Doc. No. 239-1 at 67.

She was reimbursed for the hotel and the dispatcher

offered to buy a bus ticket to meet the next truck, but

Lopez declined and opted to rent a car. Id. at 67. Lopez

was not paid for the time she was off the truck, which

lasted several days. Doc. No. 247-1 at 66.

Around July 7, 2014, Lopez complained to Carlson

about Smith’s conduct and identified a truck stop cashier as a witness. Id. at 67. Lopez declined to provide a

written statement after being interviewed by Carlson.

Doc. No. 239-1 at 67. Carlson made one attempt to

reach the witness identified by Lopez, but did not reach

him or her. Id. Carlson also interviewed Smith who denied any wrongdoing. Id. She concluded the complaint

could not be corroborated. Doc. No. 247-1 at 67. Lopez

has not spoken with Smith since they drove together

and Smith’s driver preference was changed to male

only. Doc. No. 239-1 at 68.

13. Lopez and Craig Jones

During an October 2014 trip, Lopez alleges that

Jones laid on top of her naked while she was sleeping

and pressed his erect penis against her24 until she

woke up and showed him a screwdriver she kept under

her pillow for safety. Id.; Doc. No. 247-1 at 67-68. Lopez

CRST denies this statement is supported by the cited material. See Doc. No. 247-1 at 67.

82a

exited the truck and went into the truck shop where

they were stationed. Doc. No. 247-1 at 68.

Lopez contacted a shuttle driver about her allegations and when she hung up a different person from

CRST contacted her. Doc. No. 239-1 at 68. Lopez spoke

to a driver manager. Lopez asked the driver manager

to let them continue to Oklahoma City so Lopez could

pick up a different truck there. She did not address the

harassment from Jones until after she requested they

continue to Oklahoma City. Id. The next day, she spoke

with driver manager Teresa Strong, who routed Lopez

to Oklahoma City only after Lopez and Jones relayed

the load in West Memphis, Arkansas. Strong had Lopez

get off the truck in West Memphis, stay in a motel and

take a rental car to Oklahoma City to pick up a truck.

Id. at 69. Lopez received layover pay for the time she

was unable to drive due to being removed from the

truck.

HR attempted to reach Lopez by phone on October

24, 2014, and left a voicemail, which was the day after

Lopez’s October 23, 2014, complaint to Strong. While

finishing the trip with Jones, Lopez had recorded Jones

admitting that he had touched her inappropriately and

she sent the recording to HR. Doc. No. 247-1 at 69.

Lopez alleges that after the one voicemail, HR did not

attempt to reach her again and did not complete an investigation into her complaint.25 Jones’ team preference was changed to male only according to CRST, but

CRST denies this as unsupported by the cited material.

Doc. No. 247-1 at 69.

83a

Lopez denies this based on lack of factual support. Doc.

No. 239-1 at 69.

14. Lopez and M.B.

Lopez alleges she and M.B. had the following exchange:

Well, I was grinding the gears a lot, and he

had a situation with that, and he would say

that I was grinding the gears a lot. I called it

in and the problem was the truck. It had to

have the clutch fixed. That’s why the gears

were grinding so much. He made a comment

one day when we were going through mountains, and he tells me, oh, Claudia, one of

these days I could just do anything to you, kill

you, throw you through the mountains there

and no one – nobody ever going to find you.

Id. at 70. Lopez did not make any complaints to CRST

regarding M.B. while on the truck with him. Lopez

states she quit working at CRST after driving with

M.B. because she was “nervous” as a result of her experiences on the road with various harassers. Doc. No.

247-1 at 70. CRST denies that this is supported by the

cited material and admits that while Lopez testified

she stopped driving with M.B. because she was “nervous” she also testified she quit CRST because her doctor told her she needed an operation for her bladder.

Id.

84a

Plaintiffs’ Separation from CRST

Sellars stopped driving while she had a workers’

compensation claim open for several months. She adds

that this was from an injury during a sexual assault

by Monroe and that the injury and hospital treatment

effectively stopped her driving with CRST. Doc. No.

239-1 at 70. She denies that she voluntarily stopped

driving for CRST. CRST states Sellars’ workers’ compensation claim was closed on November 23, 2015, due

to Sellars abandoning treatment. Sellars states that

CRST sent her a notice in January 2015 that it would

stop her payments, falsely claiming that she did not

provide certain medical forms, which were to have

been provided to CRST directly from the treating providers.

Fortune left CRST to take care of her mother, who

was very ill, and because she could not bear to undergo

any more of the experiences she had complained about.

Id. at 71. She bought a bus ticket and went home and

after failing to report to work, CRST entered her termination on February 27, 2015. Id.

Lopez felt “nervous” after leaving M.B.’s truck.

This, along with medical issues she experienced,

caused her to leave CRST. Id. at 72. During Lopez’s

“home time,” she was told she would need an operation.

She contends her decision not to go back was related to

feeling nervous after leaving M.B.’s truck and she denies that she voluntarily separated from CRST. Id.

Lopez last worked on December 21, 2014, and CRST

terminated her employment on February 20, 2015.

85a

CRST states this was after she failed to report to work

and Lopez denies this for lack of factual support.

V. ANALYSIS

A. Plaintiffs’ Hostile Work Environment Claims

CRST argues that plaintiffs cannot establish a

hostile work environment because their allegations

are not actionably severe or pervasive and CRST’s

prompt response was reasonably calculated to stop the

alleged misconduct. Doc. No. 219 at 22. Plaintiffs argue

that CRST had constructive and actual notice of the

multiple incidents of harassment, including those involving plaintiffs, and that CRST’s purported remedy

did nothing to stop the routine and repeated harassment each plaintiff experienced. Doc. No. 239 at 15.

“Discrimination based on sex which creates a hostile or abusive working environment violates Title

VII.” McCown v. St. John’s Health System, Inc., 349

F.3d 540, 542 (8th Cir. 2003). To establish a claim of

hostile work environment, a plaintiff must prove:

(1) that she is a member of a protected group;

(2) that she was the subject of unwelcome sexual harassment; (3) that a causal nexus existed between the harassment and protected

group status; (4) that harassment affected a

term, condition or privilege of employment;

and (5) that her employer knew or should

have known of the harassment and failed to

take prompt and effective remedial action.

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Hales v. Casey’s Marketing Co., 886 F.3d 730, 735 (8th

Cir. 2018) (citing Klein v. McGowan, 198 F.3d 705, 709

(8th Cir. 1999)). “In order to show that the harassment

affected a term or condition of employment, ‘the conduct must be sufficiently severe or pervasive to create

an environment that a reasonable person would find

hostile or abusive and that actually altered the conditions of the victim’s employment.’ ” Id. (quoting Crist v.

Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997)).

As noted above, CRST challenges plaintiffs’ claims of

hostile work environment based on the fourth and fifth

elements only.

1. Severe and Pervasive Requirement

“To survive summary judgment, a plaintiff must

present evidence from which a reasonable jury could

conclude that the harassment was sufficiently ‘severe

or pervasive’ to affect a term, condition, or privilege of

the plaintiff ’s employment.” Powell v. Yellow Book

USA, Inc., 445 F.3d 1074, 1077 (8th Cir. 2006) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct.

367, 126 L.Ed.2d 295 (1993)). The offensive conduct

must be “severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile

or abusive.” Woodland v. Joseph T. Ryerson & Son, Inc.,

302 F.3d 839, 843 (8th Cir. 2002). The plaintiff must

have also found the work environment subjectively

hostile based on the harassment. Sallis v. Univ. of

Minn., 408 F.3d 470, 476 (8th Cir. 2005). Relevant factors include the frequency of the discriminatory

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conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and

whether it unreasonably interfered with an employee’s

work performance. Pye v. Nu Aire, Inc., 641 F.3d 1011,

1018 (8th Cir. 2011). The conduct “must be extreme

and not merely rude or unpleasant to affect the terms

and conditions of employment.” Alagna v. Smithville RII Sch. Dist., 324 F.3d 975, 980 (8th Cir. 2003). “More

than a few isolated incidents are required and the alleged harassment must be so intimidating, offensive,

or hostile that it poisoned the work environment.” Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003) (internal quotations omitted). A single incident can be

sufficiently severe to amount to a hostile work environment. See Moring v. Ark. Dept. of Corr., 243 F.3d 452,

456 (8th Cir. 2001) (“we are unaware of any rule of law

holding that a single incident can never be sufficiently

severe to be hostile-work-environment sexual harassment).

Here, the parties disagree about how to view the

alleged, offensive conduct. CRST argues that it should

be viewed on a complaint-by-complaint basis as to each

alleged harasser. Plaintiffs argue that I must consider

the totality of the offensive conduct that each of them

experienced. Under the fourth element, I must consider whether the harassment is objectively and subjectively offensive to rise to the level of severe and

pervasive that affected a term, condition or privilege of

the plaintiff ’s employment. Under the fifth element, I

must consider whether the employer knew or should

have known of the harassment and failed to take

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prompt and effective remedial action. The fourth element focuses on the perspective of the reasonable person and the plaintiff herself while the fifth element

focuses on the perspective of the employer. For purposes of the fourth element, I will consider the totality

of the allegedly offensive conduct that each plaintiff experienced to determine whether she has demonstrated

a genuine issue of material fact as to whether the conduct was sufficiently severe or pervasive to affect a

term, condition or privilege of her employment.

Sellars has put forth evidence demonstrating that

she was subject to the following instances of alleged

harassing conduct:

• At the Riverside Terminal, Sellars heard

men make offensive sexual remarks about

other women and women in general, including

but not limited to comments about the way

women’s bodies were built, how they were

dressed and the attractiveness of women who

were in the terminal. Doc. No. 247-1 at 45-46.

For instance, men would tell her “you have a

nice ass, lady” or “I’d like to tap that ass.” Id.

• Wilkerson stared at her, made offensive

remarks to her and forcefully grabbed her

while demanding to know why she would not

sleep with him. Id.

• He approached her again and told her he

wanted to “go down on [her]” and “eat [her]”

after she left the room the first time he made

the offensive remarks. Id.

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• Wilkerson grabbed Sellars’ shoulder and

demanded to know why she would not sleep

with him. Id.

• Radford made sexual remarks to her, such

as telling her she had a “nice ass” and could

“see where Lydell was coming from.” Id.

• Radford began masturbating in her presence and asked if she would like “to join” him

to which she responded “no.” Doc. No. 247-1 at

48.

• Radford attempted to remove her shirt

while she was in her bunk. Id. at 49; Doc. No

239-1 at 41-42. She struggled with him telling

him to stop, but Radford was able to lift the

shirt up to her head before she could move to

the passenger seat. Doc. No. 247-1 at 49.

• L.W. made a comment (or comments, according to Sellars) about her body. Id. at 4344.

• Sellars was talking to Monroe and another

person about their families and sharing photos. Id. at 46. Monroe showed a photo of a family member, and while scrolling through

photos, allegedly displayed a pornographic

photo for a second or less. Sellars adds that

Monroe purposefully stopped at the pornographic photos to look at them. Id. Monroe

told Sellars he had accidentally downloaded

the photos. Monroe then showed Sellars and

the other person a video he created wherein it

appeared he was tied up with rope and held at

knifepoint by two stuffed animals. Monroe

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then told Sellars he “was going to do that to

[her].” Id. Later, while training on the road,

Monroe told Sellars that he and his friends

wished to tie her up and “do things to [her.]”

Id. at 46-47. Sellars told him that was not going to happen. Id. While they were on the

road, they got into a dispute about who would

drive next after stopping to get gas. Id. at 47.

Sellars denies that the issue of “who would

drive” was the cause of the dispute stating

that after Sellars rebuffed Monroe’s suggestion to tie her up, he became angry with

Sellars, taking photos and videos of her while

driving. Id.

• Monroe shoved her into the passenger seat

and forced her to sit down saying she would

regret calling dispatch and complaining about

him. Id. Monroe had a knife during this time

that he kept either on the dash, in his hand or

on his right leg while driving and pointed it at

Sellars while threatening her that she could

not leave the truck. Id. at 47-48.

• Sellars received medical treatment due to

the physical assault she suffered from Monroe

and was placed on workers’ compensation after discussing the need for medical attention

with Holzer and Carlson. Id.

This evidence, viewed in the light most favorable

to Sellars, is sufficient for a jury to conclude that a reasonable person would find the alleged conduct severe

and pervasive enough to constitute a hostile work environment. The evidence also reflects that Sellars herself found the conduct severe and pervasive as she

91a

rejected these drivers’ sexual advances and made complaints to HR regarding their conduct. CRST is not entitled to summary judgment based on this element of

Sellars’ hostile work environment claim.

Fortune has put forth evidence demonstrating

that she was subject to the following instances of alleged harassing conduct:

• During her training as a student driver at

the Cedar Rapids Terminal, she heard daily

offensive remarks from male trainers and codrivers about either herself or other women,

including men coming on to her or propositioning her for sex, men making comments

about women’s bodies such as, “man she’s got

ass on her” or “I’ll hit that” and men talking

about which women they had slept with. Id.

at 71.

• Wood made comments about Fortune’s appearance, asked what she liked sexually and

stated he had “never been with a colored

woman before.” Id.; Doc. No. 247-1 at 71. Fortune rejected his advances. Id. at 72.

• On the first night of the two-day trip, Wood

claimed there was only one room containing

only one bed and stated “that’s ok, we can

share.” Id. The room had two beds and Fortune refused to share a bed with Wood even

though he continued pressing her to do so. Id.

• Wood came out of the shower in his boxers

(with his boxers exposing his penis) and sat

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on the bed and asked Fortune to rub his back.

Doc. No. 239-1 at 51.

• Wood told Fortune “I haven’t had pussy in

six months, if you want to pass you might

want to take that into consideration.” Doc. No.

247-1 at 72. Fortune told him “no” and proceeded to sleep in her own bed with her coat

on. Id. at 73.

• Parker watched pornography and Fortune

once caught him engaging in a sexual act.26

Doc. No. 239-1 at 52-53. Fortune could not recall whether Parker ever physically touched

her, but he made sexual advances toward her

while he was a trainer and repeatedly asked

her to have sex with him. Id. When she turned

him down, he would make things difficult for

her, such as by refusing to help her back the

truck or blaming weight-load issues on her. Id.

at 53-54. He also told her he was the type of

guy that would hit a woman if he had to. Id.

• While waiting for a second team of drivers

to pick up part of their load, Parker again

propositioned Fortune to have sex. Id. at 54.

She states Parker forced her out of the truck

and threw her belongings out after she refused to have sex with him.

As noted above, Fortune alleges that Parker “regularly”

watched pornography and masturbated while Fortune was on the

truck and on at least one occasion ejaculated in her presence. Doc.

No. 247-1 at 74. CRST denies that the statement that Parker regularly watched pornography and masturbated while Fortune was

on the truck is supported by the appendix citation. Id.

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• Upon returning to the terminal, Fortune

alleges Parker spread rumors that Fortune

was a “lot lizard” (trucker slang for prostitute). Doc. No. 247-1 at 75.

• Fortune alleges there were two male drivers by the name of “Jamal” who sexually harassed her. One threatened to rape her and the

other asked her to send him a recording of

herself urinating. Id. at 56-57. “Jamal” also

commented on her physical appearance.

• J.S. declined a proposition from a prostitute in front of Fortune by stating, “[W]ell, I

have a co-driver here, I would love to but I

can’t.” He told Fortune, “she actually made my

dick hard.” Id. Fortune found J.S.’s response

to the prostitute to be sexually offensive.

• Fortune felt compelled to leave the truck

after J.S. called her a “psychotic fat black

bitch” and told her that the sexual abuse that

she experienced as a child was deserved. Id.

at 59-60.

• Davis commented on Fortune’s physical

appearance. Doc. No. 239-1 at 61. Davis expressed a desire to sleep with Fortune, asked

her to take an AIDS test, asked her to share

the bunk with him and told her that he had

had sex with a previous female co-driver. Id.

Fortune rejected his advances. Doc. No. 247-1

at 78. She alleges that as she continued to reject his advances, he became angry and hostile, for instance, by refusing to help her back

the truck. Id. at 79.

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• Fortune states that when she learned that

Davis planned to quit his employment with

CRST, he threatened her to the effect that she

would not want to see what would happen if

she alerted management to his intention to

quit. Id.

• Pickens started touching Fortune inappropriately, including but not limited to, grabbing

her buttocks and waist. Id. Fortune told him

to stop and she did not like it. Id.

• On one occasion, while standing over her

bed, Pickens told her he wanted to get in bed

with her and she told him no. Id.; Doc. No. 2391 at 63. Pickens continued expressing an interest in having sex with her. Id. Pickens

would not leave until she told him about

knives she kept under her pillow to protect

herself. Doc. No. 247-1 at 81.

This evidence, viewed in the light most favorable

to Fortune, is sufficient for a jury to conclude that a

reasonable person would find the alleged conduct severe and pervasive enough to constitute a hostile work

environment. The evidence also reflects that Fortune

herself found the conduct severe and pervasive as she

rejected this conduct and made complaints to HR regarding this conduct. CRST is not entitled to summary

judgment based on this element of Fortune’s hostile

work environment claim.

Lopez has put forth evidence demonstrating that

she was subject to the following instances of alleged

harassing conduct:

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• When Lopez spent time at Riverside Terminal and Cedar Rapids Terminal, male drivers frequently came on to her sexually,

making comments such as “is it true what

they say about Puerto Rican women, that

they’re hot?” Doc. No. 247-1 at 64.

• On Lopez’s first day of training at the Red

Roof Inn in Iowa around April 2014, J.M. (a

fellow student driver) approached Lopez and

another female student and asked them personal questions about their marital status.

Doc. No. 247-1 at 61. He commented to the female student that Lopez’s shirt was “too long,”

implying that he could not see her buttocks.

Id.

• The next day, J.M. approached Lopez and

began touching her back, scratching it numerous times over her objections while she was on

the phone with her mother. Id. Eventually,

Lopez was able to get out of her chair and exit

into an elevator. Id.

• J.M. continued to accost Lopez, making

her nervous. Id. at 62. He would tell her she

was “very pretty” and, while laughing, asked

if she had spoken to her mother again. Id. J.M.

told Lopez’s friend, in front of Lopez, that after his road training, he was “coming back for

[Lopez] to rape [her] and marry [her] and take

[her] with him.” Id.

• J.M. also tried to force Lopez to hug him.

See Doc. No. 239-1 at 64.

96a

• Smith made sexual advances towards her,

would purchase things for her, tell her “I like

big women” and would attempt to kiss her. Id.

• Smith commented on her physical appearance, woke her for a driving shift change by

touching her hair, asked her to shower with

him and told her that she should appreciate

him. Doc. No. 239-1 at 66.

• Smith touched her back and hair on more

than one occasion even after she previously

told him not to touch her when waking her up.

Id.

• Smith also laid in bed with her against her

will and repeatedly attempted to pressure her

into reciprocating his advances, including attempts to kiss her. Id. He would become angry

with her and subject her to verbal abuse when

she did not reciprocate. Id.

• Jones laid on top of Lopez naked while she

was sleeping and pressed his erect penis

against her27 until she woke up and showed

him a screwdriver she kept under her pillow

for safety. Id.; Doc. No. 247-1 at 67-68.

• M.B. told her, “oh, Claudia, one of these

days I could just do anything to you, kill you,

throw you through the mountains there and

no one – nobody ever going to find you.”

This evidence, viewed in the light most favorable

to Lopez, is sufficient for a jury to conclude that a

CRST denies this statement is supported by the cited material. See Doc. No. 247-1 at 67.

97a

reasonable person would find the alleged conduct severe and pervasive enough to constitute a hostile work

environment. The evidence also reflects that Lopez

herself found the conduct severe and pervasive as she

rejected this conduct and made complaints to HR regarding this conduct. CRST is not entitled to summary

judgment based on this element of Lopez’s hostile work

environment claim.

2. CRST’s Response to Alleged Harassment

CRST argues that no plaintiff has provided evidence demonstrating that CRST had received a complaint of harassment with respect to any of the accused

drivers prior to a plaintiff ’s complaint. Doc. No. 219 at

17. It further argues that nothing in the record supports a probability of harassment by an accused driver

at the time he was put into the same work environment as a plaintiff because no plaintiff was placed back

in a truck with any of the accused drivers following a

complaint. CRST contends it could not have been

aware of any alleged risk absent reporting because the

alleged misconduct occurred in isolated environments

(often in a two-person truck cab). Id. at 17-18. Moreover, it contends that its prompt remedial action in response to each complaint was reasonably calculated to

stop the alleged harassment such that CRST cannot be

held liable. Id. at 20.

Plaintiffs rely on prior sexual harassment lawsuits filed against CRST and Carlson’s suggestion to

install cameras on each truck to demonstrate a

98a

genuine issue of material fact as to whether CRST was

aware that plaintiffs would be subjected to sexual harassment. Doc. No. 239 at 32-33. They argue that even

after CRST had actual notice of harassment, plaintiffs

continued to experience multiple instances of harassment despite CRST’s response. As such, they argue a

reasonable jury could conclude that CRST failed to

take prompt and effective remedial action.

“An employer’s liability turns on whether the employer was aware of the conduct and whether it took

appropriate action to remedy the circumstances in a

timely and appropriate manner.” Hales, 886 F.3d at

735 (citing Crist, 122 F.3d at 1111). “Prompt remedial

action shields an employer from liability when the harassing conduct is committed by a co-worker rather

than by a supervisor.” Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 994 (8th Cir. 2003) (citing Moisant v. Air Midwest, Inc., 291 F.3d 1028, 1031 (8th Cir.

2002)). When an employer has a published policy

providing a procedure for reporting harassment, a

plaintiff must invoke this procedure to establish actual

notice. See Weger v. City of Ladue, 500 F.3d 710, 721

(8th Cir. 2007). Otherwise, an employee “can show an

employer’s constructive knowledge of sexual harassment by demonstrating that ‘the harassment was so

severe and pervasive that management reasonably

should have known of it.’ ” Id. (quoting Watson v. Blue

Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)). The

harassment must be so widespread as to be “obvious to

everyone.” Smith v. St. Louis Univ., 109 F.3d 1261, 1265

n.3 (8th Cir. 1997).

99a

“The factors to consider when assessing the reasonableness of an employer’s action ‘include the

amount of time that elapsed between the notice and

remedial action, the options available to the employer,

. . . and whether or not the measures ended the harassment.’ ” Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981,

987 (8th Cir. 2016) (quoting E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 692-93 (8th Cir. 2012)).

“Proper remedial action need be only ‘reasonably calculated to stop the harassment,’ and remedial action

that does not end the harassment can still be adequate

if it is reasonably calculated to do so.” Engel v. Rapid

City Sch. Dist., 506 F.3d 1118, 1125 (8th Cir. 2007)

(quoting Carter v. Chrysler Corp., 173 F.3d 693, 702

(8th Cir. 1999)).

As acknowledged by the parties, the fifth element

involves two questions: (1) the employer’s notice of harassment and (2) the employer’s response. Plaintiffs argue that there is a genuine issue of material fact

regarding whether CRST had constructive notice28 of

Plaintiffs argue that “an employer may be negligent although it did not have actual notice if it reasonably should have

anticipated the harassment, i.e., if it had constructive notice.” Doc.

No. 239 at 35 (quoting Sandoval v. Am. Bldg. Maint. Indust. Inc.,

578 F.3d 787, 802 (8th Cir. 2009) (emphasis added)). In Sandoval,

the Eighth Circuit remanded the case to the district court instructing it to consider plaintiffs’ evidence of widespread sexual

harassment in determining whether the employer had constructive notice of plaintiffs’ harassment. Sandoval, 578 F.3d at 803.

On remand, the district court concluded that the employer could

not be charged with constructive notice based on complaints from

80 of plaintiffs’ coworkers as these complaints did not involve the

same workplace and many did not identify the accused harasser.

100a

the alleged harassment, while CRST contends that

only actual notice is at issue. It is undisputed that each

of the three plaintiffs attended CRST’s new driver orientation and acknowledged receiving CRST’s anti-harassment policy and a copy of CRST’s driver Handbook.

See Doc. No. 239-1 at 34-37. Because it is undisputed

that CRST had a reporting procedure in place and that

plaintiffs used it to report harassment, CRST had actual notice of the harassment at issue when it was reported. Plaintiffs attempt to show that CRST had

constructive knowledge of the harassment much earlier based on past sexual harassment lawsuits against

CRST and Carlson’s testimony regarding the need for

a different approach (such as installing cameras on

trucks) to prevent sexual harassment. See Doc. No. 239

at 32-33.

In addition to admissibility issues with this type

of evidence, CRST contends that plaintiffs advocate for

a duty of being “aware of the danger that Plaintiffs

would be sexually assaulted or harassed.” Doc. No. 246

at 11 (citing Doc. No. 239 at 32-33 (emphasis added)).

CRST asserts that the law requires knowledge of a specific risk of harassment and plaintiffs’ approach would

require it to assume that every one of its male drivers

would harass every one of its female drivers at some

point. Id. at 16. I agree with CRST that plaintiffs’ attempt to show constructive notice through general evidence regarding previous complaints in separate

lawsuits goes beyond the applicable standard.

Sandoval v. Am. Bldg. Maint. Indust., Inc., 765 F. Supp. 2d 1138,

1169-71 (D. Minn. 2010).

101a

Plaintiffs have not shown that any of the past complaints of sexual harassment in those cases involved

the same drivers accused of harassment in this case.

See Kramer v. Wasatch Cnty. Sheriff ’s Office, 743 F.3d

726, 756 (10th Cir. 2014) (“An employer’s knowledge

that the harasser had harassed people other than the

plaintiff could be relevant to whether the employer had

constructive notice of the dangerousness of the employee, but the extent and seriousness of the earlier

harassment and the similarity and nearness in time to

the later harassment should be factors in deciding

whether to allow the evidence of harassment of others

to prove notice.”) (internal quotations omitted)).

I find that the law does not require an employer to

anticipate the misconduct of its employees when those

employees have given no indication that they would

engage in misconduct. To conclude otherwise would

raise the standard to strict liability rather than negligence. The same conclusion applies to Carlson’s suggestion to install cameras in each truck. Such evidence

provides no indication that a particular individual

poses a threat to other employees. See CRST Van Expedited, Inc., 679 F.3d at 690 (noting that constructive

notice is established “where an employee provides

management level personnel with enough information

to raise a probability of sexual harassment in the mind

of a reasonable employer” or “where the harassment is

so pervasive and open that a reasonable employer

would have had to be aware of it.”).

I agree with CRST that because it had a reporting

procedure in place and plaintiffs undisputedly

102a

acknowledged and used the procedure, CRST’s remedial efforts must be measured based on its actual notice of allegations. As CRST points out, the record

evidence does not demonstrate any history of complaints against any of the drivers who plaintiffs accused of harassment. Thus, CRST’s knowledge and

remedial response depends on actual knowledge based

on each plaintiff ’s complaint. Doc. No. 219 at 22.

CRST argues that its remedial response to sexual

harassment has already been acknowledged by the

Eighth Circuit as prompt and appropriate. In Nichols,

the court stated:

In CRST, we determined that the employer

took appropriate remedial action by: “(1) removing the [harassed] woman from the truck

as soon as practicable, arranging overnight

lodging at a motel and subsequent transportation to a CRST terminal at the company’s

expense; (2) requesting a written statement

from the [victim]; (3) relieving the [victim]

from future assignments with the alleged harasser; and (4) reprimanding the alleged harasser and barring him from team-driving with

women indefinitely.” We further noted that

these “actions, not necessarily in combination,

constitute the type of prompt and effective remedial action that our precedents prescribe.”

Nichols, 809 F.3d at 987 (quoting CRST Van Expedited,

Inc., 679 F.3d at 693) (internal citations omitted).

CRST argues that the undisputed evidence in this case

demonstrates that when a plaintiff reported a complaint, CRST endeavored to respond within less than

103a

24 hours to separate that plaintiff from the accused

driver, arrange overnight lodging and transportation

(where appropriate), investigate the complaint, relieve

plaintiff from future assignments with the alleged harasser to ensure she would not be placed in a truck cab

with him again and put measures in place to ensure

the misconduct stopped (by designating the alleged

harasser’s team preference to “male only” and imposing discipline where appropriate). Doc. No. 219 at 22.

CRST breaks down each of plaintiff ’s complaints with

respect to each driver, including plaintiff ’s allegations,

the employment conditions (whether the alleged misconduct was severe and pervasive enough to affect a

term, condition or privilege of employment), CRST’s response time, plaintiff ’s statement and interview (the

investigation) and what measures were taken. See id.

at 23-40. While CRST’s response did not always follow

the formula described above, it is undisputed that in

response to plaintiffs’ complaints, they were separated

from the harassing driver and were never paired with

him again.

Plaintiffs contend that the continued harassment

they experienced after reporting a previous complaint

(albeit against a different harasser) generates a fact

issue as to whether CRST failed to take preventive

measures. Doc. No. 239 at 36-37 (citing Vance v. Ball

State Univ., 570 U.S. 421, 448-49, 133 S.Ct. 2434, 186

L.Ed.2d 565 (2013) (“Assuming that a harasser is not

a supervisor, a plaintiff could still prevail by showing

that his or her employer was negligent in failing to

104a

prevent harassment from taking place.”)).29 None of

the plaintiffs allege that they continued to be harassed

by the same individual after reporting a complaint. Rather, they allege that they continued experiencing harassment from different individuals demonstrating that

CRST did not do enough systemically to prevent harassment.

“When coworkers, rather than supervisors, are responsible for the creating and perpetuation of a hostile

work environment . . . an employer can only be liable

if the harassment is causally connected to some negligence on the employer’s part.” Wilson v. Moulison

North Corp., 639 F.3d 1, 7 (1st Cir. 2011) (quoting Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005)).

“Liability only attaches if the employer, after receiving

notice, fails to take prompt and appropriate ameliorative action.” Id. at 8 (citing Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 231 (1st Cir. 2007)). Proper

remedial action need be only “reasonably calculated to

stop the harassment.” Carter v. Chrysler Corp., 173

F.3d 693, 702 (8th Cir. 1999). “[R]emedial action that

does not end the harassment can still be adequate if it

is reasonably calculated to do so.” Engel, 506 F.3d at

1125.

The Court went on to state that relevant conduct would

include “that an employer did not monitor the workplace, failed

to respond to complaints, failed to provide a system for registering

complaints, or effectively discouraged complaints from being

filed.” Vance, 570 U.S. at 449, 133 S.Ct. 2434. The preventive

measures plaintiffs argue should have been imposed include surveillance cameras on all trucks.

105a

The cases in which courts have found an employer’s response to be negligent or the remedial response inadequate (or to raise a fact issue as to this

question) involve continued harassment by the same

harasser. See Nichols, 809 F.3d at 987 (concluding

there was a genuine issue of material fact as to

whether company took appropriate remedial action

when there was evidence that plaintiff (a truck driver)

made multiple complaints about her codriver’s recurring harassment over a multi-day trip); Engel, 506 F.3d

at 1127 (“In sum, Engel has presented evidence that

could support a reasonable finding that some elements

of RCSD’s second remedial action were insufficient to

address [the harasser’s] ongoing harassment, that the

remedial action did not stop the harassment, and that

the second remedial action may actually have encouraged [the harasser] to feel that he could safely continue

certain activities.”); Carter, 173 F.3d at 703 (remanding

for court to consider whether response was reasonably

calculated to end the harassment where there was evidence that harassment continued for a year and a half

after initial complaint despite ongoing complaints of

continued harassment); Hanna v. Boys and Girls Home

and Family Servs., Inc., 212 F. Supp. 2d 1049, 1063-64

(N.D. Iowa 2002) (concluding there were genuine issues of material fact as to whether employer’s response

was reasonably calculated to end the harassment

where there was evidence that the plaintiff reported

the alleged harassing conduct by the same individual

repeatedly during her employment and employer denied her requests to be assigned to a different shift).

106a

The only case plaintiffs cite in which an employer’s

response to continued harassment by different individuals was considered inadequate is easily distinguishable. In Tademy v. Union Pacific Corp., 614 F.3d 1132

(10th Cir. 2008), the alleged misconduct involved racist

graffiti. The court found that the employer was on notice that there was a serious problem with bigoted messages appearing in public spaces around the time

Tademy raised his complaints. Id. at 1148. The court

noted that the employer did nothing in response to

plaintiff ’s initial complaints, the graffiti continued and

became worse and the employer then required training

and a warning for those who were caught. Sometimes

the graffiti was anonymous and other times it was not.

The employer argued that the plaintiff could survive

summary judgment only if he was able to demonstrate

that the same perpetrator committed any two of the

incidents. Id. at 1143. The court disagreed stating, “if

only repeat offenders could render the company liable

for a hostile work environment, the company’s failure

to investigate the incidents and identify the perpetrator might devolve to its benefit.” It required plaintiff to

demonstrate “a nexus between a[n employer’s] prior

response and later harassment by others.” Id. at 1148.

Unlike the employer in Tademy, CRST took action

in response to pl

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.