TABLE OF CONTENTS
I. INTRODUCTION.. .1005
III. ANALYSIS... 1008
A. Waiver.. .1009
B. Is Preclusion Required?.. .1011
C. Judicially Sanctioned Material Alteration.. .1015
D. Findings on Remand.. .1017
1. Legal standard.. .1019
2. Discussion.. .1021
a. Statute of limitations.. .1021
b. Concession that the claimant suffered no severe or pervasive harassment.. .1023
c. No notice or opportunity to remedy. . .1024
d. Complaint properly remedied. . .1032
e. Not severe or pervasive.. .1040
3. Summary.. .1049
E. Reasonable Fees.. .1049
1. Pattern-or-practice fees.. .1052
2. Appellate fees.. .1054
3. General fees... 1054
TV. CONCLUSION.. .1055
I. INTRODUCTION
The matter before the court is the Eighth Circuit Court of Appeals’s Mandate (“Mandate”) (docket no. 452).
II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The factual underpinnings of the sexual harassment and retaliation allegations underlying this litigation have been well-documented by the court and the appellate courts. See, e.g., CRST Van Expedited, Inc. v. E.E.O.C., — U.S. —,
In the August 1, 2013 Order, this court specifically considered the EEOC’s argument that Defendant CRST Van Expedited, Inc. (“CRST”) was incapable of being awarded attorneys’ fees under Title VII of the Civil Rights Act of 1984 because CRST was not a prevailing party. Id. at 20. The EEOC argued that “the court’s dismissal of [the sixty-seven] claims due to the EEOC’s failure to satisfy the Title VII administrative prerequisites [was] not a judicial determination on the merits.” Id. at 20. The court disagreed and ruled that the EEOC’s failure to satisfy presuit requirements constituted a failure to prove “an ingredient” of its claim, and found that its dismissal of the sixty-seven claims was a merits decision. Id. at 20-21. Under Eighth Circuit precedent at the time this court issued the August 1, 2013 Order, a favorable ruling on the merits was essential to a party’s status as a prevailing party under Title VII. See id. at 15-16 (citing Marquart v. Lodge 837, Int’l Ass’n of Machinists & Aerospace Workers,
CRST sought certiorari on the Eighth Circuit’s ruling with respect to the sixty-seven claims dismissed for the EEOC’s failure to comply with presuit obligations and the Supreme Court granted certiorari on December 4, 2015. See Writ of Certiora-ri (docket no. 438). On December 11, 2015, CRST filed a brief with this court outlining the issues that the Supreme Court would face on appeal from the Eighth Circuit. See CRST Supplemental Brief (docket no. 440) at 1. CRST clarified that the Supreme Court had granted certiorari on the issue of whether the Eighth Circuit erred in holding that CRST is not entitled to an award of attorneys’ fees with respect to the claims dismissed for failure to satisfy presuit requirements. Id. On December 16, 2015, the EEOC filed a supplemental brief further clarifying the issues faced by the Supreme Court on appeal. See EEOC Supplemental Brief (docket no. 444). The EEOC noted that, even if the Supreme Court found that the Eighth Circuit erred in holding that dismissal for failure to satisfy presuit requirements could support an award of attorneys’ fees, the Eighth Circuit had not reached the issue of whether Christiansburg had been satisfied for those claims and, thus, CRST was not automatically entitled to attorney’s fees on any claim. Id. at 2.
On remand from the Eighth Circuit and prior to the grant of .certiorari, this court directed the parties to submit briefs providing: “(1) a detailed breakdown of each individual claims for which CRST requests attorneys’ fees and costs; (2) an analysis of how each individual claim constitutes a ‘frivolous, unreasonable, or groundless’ claim; (3) an analysis of whether the requested attorneys’ fees and costs were expended
Before the Supreme Court, the EEOC “abandoned its defense of the [Eighth Circuit’s] reasoning” and instead urged the Supreme Court to adopt a rule “that a defendant must obtain a preclusive judgment in order to prevail” for purposes of attorneys’ fees. CRST Van Expedited, Inc. v. E.E.O.C.,
The Supreme Court remanded the case to the Eighth Circuit, who in turn remanded
(1) whether a defendant must obtain a preclusive judgment in order to qualify as a “prevailing party” under Title VII; (2) whether the dismissal of claims pursuant to the EEOC’s failure to fulfill presuit requirements constituted a “pre-clusive judgment”; and (3) whether the EEOC waived this argument by failing to raise it until the case reached the Supreme Court.
October 13, 2016 Order at 3. On November 11, 2016, CRST filed its brief (“CRST Brief’) (docket no. 454) addressing those three issues. On December 9, 2016, the EEOC filed its brief (“EEOC Brief’) (docket no. 458). On December 16, 2016, CRST filed a Reply (docket no. 459). The remand is fully submitted and ready for decision.
III. ANALYSIS
CRST argues that the EEOC waived its argument that a party must have obtained a preclusive judgment in order to be considered a prevailing party for purposes of attorneys’ fees by failing to raise the argument until the case reached the Supreme Court. See CRST Brief at 9-12. CRST further argues that a preclusive judgment is unnecessary to be deemed a prevailing party and that, even if the court were to determine that a preclusive judgment is required, the dismissal of the sixty-seven claims at issue had a preclusive effect. See id. at 1-9. The EEOC argues that it did not waive its preclusion argument by failing to explicitly raise it until presenting argument before the Supreme Court. See EEOC Brief at 10-13. The EEOC also argues that a preclusive judgment is necessary for a party to be considered a prevailing party and that, when the court dismissed the sixty-seven claims at issue, such decision bore no preclusive effect. See id. at 3-10.
The court will first consider whether the EEOC waived its preclusion argument. If the court determines that consideration of the preclusion argument is proper, it will then consider whether a party must enjoy a preclusive judgment in its favor to be a prevailing party and, if so, whether the dismissal of the sixty-seven claims had a preclusive effect. In any event, the ultimate question facing the court is whether CRST was a prevailing party after the court dismissed the sixty-seven claims for the EEOC’s failure to comply with presuit requirements under the standard reiterated by the Supreme Court in CRST Van Expedited, Inc. v. E.E.O.C. The questions surrounding the EEOC’s preclusion argument are probative of whether the proper test for determining whether the Supreme Court’s standard has been met necessarily involves an element of preclusion.
Though the court has determined that the Mandate solely contemplates resolution of the issues above, out of an abundance of caution and in the alternative, the court shall abide by the Eighth Circuit’s admonitions in its 2014 opinion. See E.E.O.C. v. CRST Van Expedited, Inc.,
A Waiver
CRST argues that the EEOC waived its preclusion argument because it failed to raise such argument either before the court when the court initially considered attorneys’ fees or in the EEOC’s two appeals to the Eighth Circuit. See CRST Brief at 9-11. CRST further asserts that, on appeal to the Eighth Circuit, “the EEOC did not dispute CRST’s express statement that the claims dismissed for [the] EEOC’s [presuit] failures had been dismissed with prejudice.” Id. at 11 (emphasis omitted). The EEOC did not respond to that statement in its reply brief at the Eighth Circuit and did not contend “that CRST’s argument was erroneous because the dismissal was without prejudice and that a dismissal with prejudice is required for a fee award.” Id. CRST also highlights the fact that the EEOC failed to assert its preclusion argument in its brief opposing CRST’s petition for a writ of certiorari. Id. Thus, CRST argues, the EEOC failed to preserve any error with respect to its preclusion argument, and the law of the case doctrine bars the court from considering in the second instance what it should have considered in the first. Id. at 10,12.
The “EEOC does not dispute that it did not argue prior to the Eighth Circuitos] decision in 2014 that a preclusive, as opposed to a merits, judgment was necessary in order for a defendant to be a prevailing party under Christiansburg.” EEOC Brief at 10-11. The EEOC argues that it was not required to make its preclusion argument prior to when it did because it was entitled to rely on Marquart as binding precedent and was not “obligated to anticipate a future Supreme Court reversal on a clear and long-standing circuit standard.” Id. at 11. The EEOC further asserts that its arguments before the Eighth Circuit that CRST did not obtain a ruling on the merits as to the sixty-seven claims, “by implication,” encompassed an argument that CRST did not obtain a preclusive judgment. Id. The EEOC asserts that it has “consistently argued that CRST is not entitled to fees under Christiansburg, in part because it did not receive a judgment which was on the merits, or with prejudice, or preclusive.” Id. at 12.
The Eighth Circuit has consistently refused to consider arguments on successive appeals that could have been raised in prior appeals. See, e.g., Macheca Transp. Co. v. Philadelphia Indem. Ins. Co.,
Thus, if the EEOC “could have” raised its preclusion argument in a prior appeal, Eighth Circuit precedent is clear
The court finds that the EEOC waived its preclusion argument by failing, not only to raise it before, this court, but also by failing to raise it before the Eighth Circuit in any of its appeals of the court’s fee award. See generally CRST Brief Exhibit 3 (docket no. 454-3) (the EEOC’s Eighth Circuit brief arguing that CRST is not a prevailing party, in part, because failure to comply with presuit requirements was not a merits decision); CRST Brief Exhibit 4 (docket no. 454-4) (the EEOC’s brief in opposition to CRST’s petition for a writ of certiorari before the Supreme Court stating that the Eighth Circuit’s merits-based determination of CRST’s prevailing party status was correct). The Supreme Court’s concern that the EEOC had waived the preclusion argument mirrors the ■ Eighth Circuit’s rationale for its routine refusal to consider arguments raised for the' first time on appeal. See CRST Van Expedited, Inc. v. E.E.O.C.,
.The EEOC argues that it should not be required to have raised the preclusion argument on the first appeal because it was “entirely within its rights to accept clear, longstanding circuit precedent as circuit law.” EEOC Brief at 11, However, the EEOC cites no legal authority to support its statement and, furthermore, the court does not view Marquart as having foreclosed the EEOC from making the preclusion argument. Marquart held that, in order to be a prevailing defendant in a Title VII claim, a party must obtain “a judicial determination of the plaintiffs case on the merits.” Marquart,
The EEOC’s assertion that its preclusion argument was necessarily bound up in, or implied by, its argument that CRST had not obtained a ruling,on the merits as to the sixty-seven claims similarly fails. As the above example demonstrates, not every preclusive judgment will be based on the merits of a given case. Furthermore, the EEOC’s argument that the preclusion argument was implied in its broader argument about whether the court’s dismissal of the claims was a merits or nonmerits decision is unpersuasive, primarily, because the law is clear that a party must expressly raise an argument to preserve it for appeal, rather than relying on more generalized arguments that may arguably encompass the more specific argument. See Stafford,
B. Is Preclusion Required?
CRST argues that it is not required to obtain a preclusive judgment to be considered a prevailing party for . purposes
As the court noted above, in CRST Van Expedited, Inc. v. E.E.O.C., the Supreme Court clarified “that the ‘touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties’ ” that has been “marked by ‘judicial imprimatur.’ ”
The parties rely on two cases handed down by the Eighth Circuit in the wake of the CRST Van Expedited, Inc. v. E.E.O.C. ruling to argue that their respective positions with regard to this issue are correct. See CRST Brief at 2-3; EEOC Brief at 5-7; Reply at 3. In United States v. $32,820.56,
In East Iowa Plastics, Inc. v. PI, Inc.,
CRST argues that United States v. $32,820.56 supports its position that no preclusive judgment is necessaiy to confer prevailing party status to a defendant. See CRST Brief at 2. CRST highlights the fact that the plaintiff dismissed the case voluntarily, albeit without prejudice, and the lack of “an adverse court order” is key to the Eighth Circuit’s reasoning that the defendant in that case was not a prevailing party. Id. Here, CRST argues that the court dismissed the sixty-seven claims involuntarily and the dismissal “was imposed on the EEOC,” rather than as a result of “a voluntary change” on the part of the parties. Id. at 2-3. On the other hand, the EEOC offers two reasons that United States v. $32,820.56 supports its position that a party must obtain a preclusive judgment to have prevailed: (1) the dismissal was without prejudice; and (2) “there was no judicially sanctioned change in the relationship between the parties” because “the plaintiff [was] not precluded from bringing the suit again.” EEOC Brief at 6, 6 n.l. The EEOC contends that whether claims are dismissed voluntarily or involuntarily is of no import—the true question is whether the plaintiff is free to bring its claim again. Id. at 6 n.l.
Similarly, the EEOC argues that East Iowa Plastics supports its position because, in that case, the “counter-defendant .., successfully rebuffed the counter plaintiffs ... claims by obtaining their dismissal, but the [Eighth Circuit] did not allow fees.” Id. at 6. Thus, the EEOC maintains that attorneys’ fees are unavailable if a defendant merely rebuffs the plaintiffs claims. Id. at 6-7. CRST disagrees and argues that the plaintiff in East Iowa Plastics was not awarded attorneys’ fees because the dismissal it obtained of the counterclaims placed it in materially the same position as the defendant after the defendant prevailed on its motion for judgment as a matter of law—essentially obtaining a “dead heat.” Reply at 3 (quoting E. Iowa Plastics,
This court finds that a preclusive judgment is not necessary to confer prevailing party status. Instead, the court views a preclusive judgment as a sufficient, but unnecessary prerequisite to satisfying the standard reiterated by the Supreme Court in CRST Van Expedited, Inc. v. E.E.O.C. The court disagrees with the EEOC’s contention that it matters not whether a claim is dismissed voluntarily or involuntarily for purposes of prevailing party status. A voluntary dismissal, either with or without prejudice, lacks the judicial imprimatur required under the Supreme Court’s standard. See United States v. $32,820.56,
The court is further unpersuaded by the EEOC’s position that there can be no material alteration of the legal relationship of the parties without a preclusive judgment. A party can still enjoy a material alteration in the legal relationship between itself and its opponent even without obtaining a preclusive judgment. The recent case of Wood v. Burwell, 837 F.Sd 969 (9th Cir. 2016), is particularly instructive. In Wood, the Ninth Circuit Court of Appeals held that, under the standard reiterated under CRST Van Expedited, Inc. v. E.E.O.C., “[procedural remedies can constitute a material alteration in the parties’ legal relationship.” Wood,
The Ninth Circuit reversed and held that there had indeed been a material altération in the le'gal relationship of the parties, even though the agency was free to render the same decision as it had reached prior. Id. at 974-75. The Ninth Circuit stated that procedural relief was sufficient to alter the legal relationship of the parties, even if the party fails to obtain substantive relief. Id. at 975, As an example, the Ninth Circuit in Wood contrasted the Wood plaintiffs’ obtaining a procedural “do over” at the administrative level to a party obtaining a preliminary injunction, which was ultimately lifted as the case proceeded through the course of litigation. See id. at 974-75 (citing Sole v. Wyner,
The discussion and reasoning ip Wood demonstrates that it is unnecessary that a party obtain a preclusive judgment, and the mere fact that relief does not prevent the opposing party from refiling its case or resurrecting the offending conduct, or that the relief does not entirely inure to the prevailing party’s benefit, does not mean that no alteration of the legal relationship of the parties has occurred. In United States v. $32,820.56, the Eighth Circuit stated that there was no material alteration in the legal relationship of the parties because the .plaintiff was free to file the claims again, However, the plaintiff in United States v. $82,820.56, unlike the agency in Wood and the EEOC here, were not required by the dismissal to take further steps to reinitiate the offending conduct. The United States v. $82,820.56 plaintiff was free to refile its claim whenever it wished. Instead, the cases discussed above suggest that a case-by-case, rather than categorical, analysis is appropriate. Distinctions like the distinction between procedural or substantive remedies in Wood, are not dispositive. The test remains whether there is a judicially sanctioned material alteration of the legal relationship of the parties, exactly as the Supreme Court stated in CRST Van Expedited, Inc. v. E.E.O.C. No more, no less. Accordingly, even if the court were to consider the EEOC’s preclusion argument, it would reject it.
C. Judicially Sanctioned Material Alteration
Finally, the court must consider whether the dismissal of the sixty-seven claims at issue constituted a judicially-sanctioned material alteration in the legal relationship of the parties. CRST argues that the court’s dismissal of the claims in question satisfied this, standard because, even if the EEOC were free to re-file the claims, it could not do so “without first performing its statutory [presuit] obligations with respect to each claim.” CRST Brief at 3, CRST further argues that the EEOC may not reassert the. sixty-seven claims because they would be barred by collateral estoppel. Id. The EEOC argues that the court’s dismissal of the sixty-seven claims failed to create a material change in the legal relationship of.the parties because “[w]hat the EEOC does during the administrative process does not affect legal rights.” EEOC Brief at 9. The EEOC
The court finds that its dismissal of the sixty-seven claims for failure to satisfy presuit obligations constituted a judicially sanctioned material alteration in the legal relationship of CRST and the EEOC. Initially, the court notes that, unlike in United States v. $32,820.56, these claims were dismissed by court order, marking them with judicial imprimatur. See
An examination of the policy goals underlying the presuit requirements imposed upon the EEOC illuminates why requiring compliance with such procedures, even if the EEOC were to file these sixty-seven claims anew, would result in the material alteration of the legal relationship of the parties. The Supreme Court has indicated that the EEOC’s presuit requirements further Title VII and its policy goals by emphasizing “ ‘[cooperation and voluntary compliance’ as its ‘preferred means.’ ” Mach Mining, LLC v. E.E.O.C., — U.S. —,
[I]t is clear that Congress placed great emphasis upon private settlement and the elimination of unfair practices without litigation, on the ground that voluntary compliance is preferable to court action. Indeed, it is apparent that the primary role of the EEOC is to seek elimination of unlawful employment •practices by informal means leading to voluntary compliance.
Hutchings v. U.S. Indus., Inc.,
Where, as here, the EEOC so wholly abandoned its duties of investigation and conciliation, it robs CRST of the ability to reach voluntary compliance with the statute, forces CRST to expend funds to defend the suit and frustrates Title VU’s purpose. This fact is doubly applicable here, where the court has consistently expressed concern about the so-called “moving
The court notes that the EEOC argues that the court should revisit its Christians-burg determination as to the sixty-seven claims, stating that the Christiansburg determination has not been reviewed by the Eighth Circuit or the Supreme Court. See EEOC Brief at 13. The new authority cited by the EEOC in support of its position on the Christiansburg issue is unpersuasive, because any clarification in the law regarding the reasonableness of the actions the EEOC took prior to adding the sixty-seven claims to the suit would not impact the court’s analysis, since case law is clear that courts must “refrain from post hoc reasoning and ... view the reasonableness of the matter from the plaintiffs perspective at the time.” Flowers v. Jefferson Hosp. Ass’n,
D. Findings on Remand
As the court stated above, it shall proceed to examine the seventy-eight claims which the court dismissed in a series of orders granting summary judgment to CRST and the appellate fees awarded for the EEOC’s 2012 appeal. On appeal of the
In the CRST Remand Brief, CRST argues that each of the seventy-eight claims that the court dismissed on summary judgment were frivolous, unreasonable or groundless, such to support an award of fees associated with them. See CRST Remand Brief át 17-162. CRST- also argues' that, despite the Eighth Circuit’s prohibition on seeking fees for the pattern-or-pr'actice claim, it is nevertheless entitled to fees for its defense of that theory, because defeating the pattern or practice claim was essential to defeating the other individual claims on the merits. Id. at 163-67. CRST further argues that the merits appeal was frivolous, unreasonable or groundless, such to justify' an award of fees. Id. at 168.
The EEOC argues that none of the fees the court previously awarded should be sustained. In particular, the EEOC argues that CRST fails to adequately demonstrate that the fees it is seeking were incurred solely due to the allegedly frivolous claims. Specifically, the EEOC asserts that CRST cannot prove that none of the fees which it seeks were expended in- defense of the sixty-seven claims that the court dismissed for failure to comply with presuit requirements or in defense of the pattern-or-practice claim, for both of which the Eighth Circuit expressly forbade .the court from awarding fees. See EEOC. Remand Brief at 5-16. The EEOC also relies on the merits/nonmerits distinction in Marquart and argues that the claims that the court dismissed on statute of limitations and judicial estoppel grounds do not justify fees. See id. at 16-19. Finally, the EEOC argues that CRST’s arguments that each of the individual claims were frivolous, unreasonable or groundless are insufficient to justify a fee award because the EEOC had a good faith legal basis for making each argument, and.that the court should refrain from letting hindsight cloud its judgment to justify an award, merely because a
I. Legal standard
In Christiansburg, the Supreme Court declared a standard for awarding prevailing defendants attorneys’ fees under Title VU’s fee-shifting prevision. The Supreme Court observed that “abstract words” must be used to “deal with concrete cases,” to whatever ■ extent that is possible, and stated: “[A] district court may in' its discretion award attorneys’ fees to the prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Christiansburg,
It has also stated that, merely because the court might determine, “upon careful examination,” that the allegations “prove legally insufficient to require a trial,” this does not alone mean that the action was groundless or without foundation. Id. (quoting Hughes v. Rowe,
Courts have developed a variety of factors to consider in determining whether a claim was frivolous, unreasonable or groundless. Such factors include whether the plaintiff was able to establish a prima facie case and whether the claims were dismissed prior to or after a trial. See, e.g., Turner v. Sungard Bus. Sys., Inc.,
In Fox v. Vice, the Supreme Court further refined the standard for awarding attorneys’ fees to prevailing defendants— in this case where a plaintiff asserts both frivolous and nonfrivolous claims.
The Supreme Court clarified that “the ‘but-for’ standard [it] require[s] may in some cases allow compensation to a defendant for attorney work relating to both frivolous and non-frivolous claims.” Id. at 837,
Finally, the Supreme Court in Fox cautioned that “trial courts need not, and indeed should not, become green-eyeshade accountants.” Id. The goal is “not to achieve auditing perfection” in crafting fee awards—rather, courts should aim “to do rough justice.” Id. The Supreme Court also stated that trial courts have “wide discretion in applying” the standard it set forth for differentiating between fees associated with frivolous and nonfrivolous claims. Id. at 829,
2. Discussion
CRST exhaustively walks through each of the seventy eight individual claims for which it seeks costs, detailing why it argues each claim was frivolous, unreasonable or groundless. In doing so, it impliedly makes five broader arguments regarding, generally, why the claims brought by the EEOC were frivolous, unreasonable or groundless. The EEOC did not respond by breaking down each individual claim, but instead makes broader arguments responsive to the reasons why the court dismissed the claims in its various orders on summary judgment—essentially arguing that merely obtaining summary judgment on the claims is insufficient for CRST to demonstrate that they met the Christians-burg standard and be awarded fees. See, e.g., EEOC Remand Brief at 19-42.
The EEOC also generally argues that Fox precludes any award of fees in this case because CRST cannot meet its heavy burden of demonstrating the amounts of fees it incurred for work “performed solely to defend against the seventy-eight claims” because the classes of claims, including those claims for which CRST has been barred from seeking fees (including fees directly related to the pattern or practice claim or judicial estoppel, which CRST did not prevail on in the merits appeal), all implicated the same or similar work, making it impossible to allocate work specifically to any one allegedly frivolous claim. See id. at 8-11. Specifically, the EEOC argues that “CRST’s inability to match fees incurred with specific claims and then to demonstrate, further, that it incurred those fees solely because of a particular claim that was individually, frivolous, [sic] dooms its fee request.” Id. at 11 (emphasis omitted). However, this argument places the cart before the horse. The EEOC presumes that CRST will be able to demonstrate that some of its claims are frivolous, unreasonable or groundless and preemptively objects that the court cannot grant fees because it is impossible to extricate the fees associated with the frivolous claims from the nonfrivolous ones. However, the court believes it a better practice to determine which, if any, of the EEOC’s claims were frivolous, unreasonable or groundless before performing a deep dive into whether any fees expended by CRST were expended but for such claims.
a. Statute of limitations
CRST argues that each claim that the court dismissed because the alleged conduct occurred outside of the statute of limitations was frivolous, unreasonable or groundless when it was brought. A typical example of this type of claim and argument is the EEOC’s claim on behalf of Antonia Aguilar. See CRST Remand Brief at 19-23. CRST argues that any sexual harassment that occurred prior to February 4, 2005, or 300 days prior to the filing of Monika Starke’s initial charge with the EEOC on December 1, 2005, was necessarily time barred and therefore any claims based on such conduct were frivolous, unreasonable and/or groundless. See, e.g., id. at 20. CRST notes that’ the EEOC’s basis for the inclusion of the allegedly untimely claims was the pattern- or-practice claim that it purportedly raised on behalf of all the claimants. See, e.g., id. As the court noted in its May 11, 2009 Order (docket no. 223), granting CRST summary judgment with respect to the statute of limitations, “[t]he EEOC’s entire [theory] is premised upon the proposition that it is immune from § 2000e-5’s statute of limitations in this case because it has a viable pattern or practice claim against CRST.” May 11, 2009 Order at 12 (emphasis omitted); see also generally EEOC’s Brief in Opposition to Defendant’s Motion for Summary Judgment Based on Statute of Limitations and Other Grounds (docket
The EEOC does not dispute the factual allegations regarding the alleged dates each .claimant suffered sexual harassment and the court adopts the same. Instead, the EEOC argues that the court may not award fees based on claims dismissed on statute of limitations grounds because they are not merits decisions—an argument that no longer holds weight after the Supreme Court’s opinion in CRST Van Expedited, Inc. v. E.E.O.C. See EEOC Remand Brief at 16-17. The EEOC also argues that its basis for asserting the pattern-or-practice claim- under the continuing violation doctrine was reasonable, and such doctrine relieved it of having to bring any claim within the statute of limitations. Id. at 17. The EEOC latches on to language from the court’s May 11, 2009 Order suggesting ■that, the court considered whether the EEOC was bound by a statute of limitations and recognized a split of authority at the district courts. Id. at 18. It argues that, because it presented a live question of law on which reasonable minds could differ, and in fact a position that has been accepted by the Sixth Circuit Court of Appeals and the United States District Court for the District of Minnesota since, the claims the court dismissed on statute of limita--tions grounds were not frivolous,' unreasonable or groundless.
The court disagrees with the EEOC. Initially, the court notes that the portion of the May 11, 2009 Order on which the EEOC relies to argue that it presented a fair question of law was insubstantial to the court’s holding. See May. 11, 2009 Order at 14 (noting that the question regarding the EEOC’s statute of limitations was an “[alternate holding” (formatting omitted)). Furthermore, as the court noted in the May 11, 2009 Order, the EEOC resisted summary judgment on these claims purely on the basis of a pattern-or-practice violation. The pattern-or-practice claim formed the basis of the continuing violation that the EEOC alleged in this case. See EEOC’s Brief in Opposition to Defendant’s Motion for Summary Judgment Based on Statute of Limitations and Other Grounds at 8 (“Here, the pattern or practice of sexual harassment alleged by EEOC is a single employment practice, and all women subjected to that practice during the time of. its existence are victims.”). The EEOC never made a blanket assertion that the statute of limitations did not apply to it and an argument based on the continuing violation doctrine is inapposite, as it necessarily depends on the existence of a pattern-or-practice claim, which the court determined was not viable.
While the EEOC and CRST contest whether the purported pattern-or-practice 'claim was frivolous, unreasonable or groundless on the purported claim’s merits, the court views the claim as frivolous, unreasonable or groundless irrespective of the quantum of evidence that the EEOC adduced in support of it. Neither party addresses the EEOC’s failure to properly plead a pattern-or-practice claim in the first instance. Repeatedly throughout the litigation, the court expressed confusion and concern regarding whether a pattern- or-practice claim was actually extant. See,
b. Concession the claimant suffered no severe or pervasive harassment
CRST argues that it is entitled to fees for all of the claims for which the EEOC conceded that the claimant did not suffer severe or pervasive sexual harassment but relied on the purported pattern- or-practice claim to “piggyback” the claim into the instant litigation. A typical example of this type of claim and argument is the EEOC’s claim on behalf of Cristie Basye. See, e.g., CRST Remand Brief at 31-32. CRST states that “[t]he fact that EEOC conceded [that] neither ..-. [Ba-sye’s trainer’s, nor a potential co-driver’s,] conduct constituted severe or pervasive sexual harassment establishes the groundless nature of EEOC’s claims on behalf of Basye.” Id.
The court agrees. The court has already determined that the pattern-or-practice claim was frivolous, unreasonable and/or groundless because of the EEOC’s failure to properly plead the same. That the EEOC apparently recognizes the frivolity of these types of claims in the absence of a pattern-or-practice claim demonstrates that all claims falling under this category
c. No notice or opportunity to remedy
CRST contends that each claim dismissed because the court found that CRST had no notice or opportunity to remedy the alleged harassment supports an award of fees. A typical example of this type of claim and argument is the EEOC’s claim on behalf of Jeana Fowler Allen. See, e.g., id. at 25-27. Fowler Allen alleged that she was harassed by two trainers “with whom she drove for a short period of time.” Id. at 25. Fowler Allen admitted at her deposition that she understood that if she, “as a driver, believed that [she] had experienced sexual harassment, that should be reported immediately to [her] supervisor or to the human resources department at CRST” and, further, that she “understood that [her] dispatcher was [her] supervisor.” Omnibus Rule 56 Appendix
The EEOC argues- that it had some basis in law and fact for raising such claims because the EEOC relied on an argument that a claimant’s trainer was their “supervisor,” thus imputing knowledge of the alleged harassment to CRST. See EEOC Remand Brief at 24. The EEOC supported such argument by producing evidence that certain persons at CRST characterized a driver’s trainer as their de facto supervisor. See id. The EEOC also relies on the Supreme Court’s opinion in Vance v. Ball State University, which recognized a split of authority regarding the proper definition of the term “supervisor.”
The EEOC further asserts that it had reasonable grounds for asserting these claims “because CRST had notice that female drivers consistently complained about harassment and it failed to prevent or decrease the incidence of harassment.” EEOC Remand Brief at 26. Thus, the EEOC argues, its claims on behalf of the women who never formally complained to CRST were not frivolous, unreasonable or groundless “because CRST knew women were at risk of being harassed and failed to take reasonable measures to prevent the harassment in the first instance.” Id. In support of its position, the EEOC points to evidence that it adduced in its resistance to CRST’s motion for summary judgment on the pattern-or-practice claim. See id. at 26-27; see also Brief in Opposition to CRST’s Motion for Summary Judgment on EEOC’s Pattern or Practice Claim (docket no. 168) at 12-16. The EEOC focuses on what it perceives as a high number of incidences of harassment that were reported to CRST and its own conclusion that “CRST routinely failed to determine if its sexual harassment policy was violated or to impose any meaningful discipline on drivers who violated the policy.” EEOC Remand Brief at 26-27.
The court rejects the EEOC’s argument that the claims at issue were reasonable because CRST must have been on notice of all incidents of sexual harassment because it received sporadic complaints of sexual harassment. The EEOC’s figure of 9.4% of all female truck drivers who were paired with men between January 1, 2005 and September 8, 2008, who complained of sexual harassment fails to demonstrate that the EEOC’s claims on behalf of women for whom CRST had no formal notice were reasonable for several reasons. First, the 9.4% figure only captures a portion of the story. The EEOC concedes that, in its calculation of that figure, it does not take into account “women who were sexually harassed by other women” or “women who were harassed by other CRST employees, such as fleet managers, recruiters, or drivers with whom they were not assigned.” Brief in Opposition to CRST’s Motion for Summary Judgment on EEOC’s Pattern or Practice Claim at 14. Further, the EEOC’s estimate does not take into account any complaints made by men during that time. Of course, such an inquiry would outstrip the scope of the case, but the court recognizes that it would be absurd to envision CRST as keeping a close tally of each individual claim of sexual harassment by a woman paired with a male driver and carefully arrive at the 9.4% figure in the midst of every other complaint or allegation of harassment made during that period. Second, while the court does not view the 9.4% figure as particularly low, it does recognize that the vast majority of female and male pairings were completed without an allegation of harassment. The EEOC does not explain why CRST should have extrapolated this figure to assume that all women were being sexually harassed when driving with male trainers or co-drivers and preemptively remedied a situation that it could not be sure was occurring. Third, the evidence demonstrates that, when CRST became aware of alleged harassment, it promptly took action to remedy it. See, e.g., Part III.D.2.d infra; see also April 30, 2009 Order at 49-51 (noting, among other things, that at least one male
CRST maintained a Professional Driver's Handbook at all relevant times which contained, among other things, “a definition of sexual harassment and addresses reporting, investigations, and corrective actions.” Appendix in Support of CRST’s Motion for Summary Judgment on EEOC’s Pattern and Practice Claim (docket no. 150—5) at 145. The Professional Driver’s Handbook further states:
Employees who are subjected to/or [sic] witness harassment or discrimination should immediately report such conduct to any one of the following members of management:
Immediate Supervisor Director of Human Resources ...
Id. (formatting in original). Additionally, it is undisputed that CRST structured its business, formally, such that “[a]ll drivers report to fleet managers who operate as truck dispatchers.” Id. at 144. CRST also requires all new drivers to undergo a mandatory orientation period, at the end of which drivers sign an acknowledgment stating that they have received, read and understood CRST’s sexual harassment policy. Id. at 146.
Where a claimant fails to properly report the harassmént through the channels provided to them, courts routinely refuse to impute knowledge on the employer for the misconduct of an employee or even a supervisor. See, e.g., Chaloult v. Interstate Brands Corp.,
Here, though the claimants were admittedly aware of CRST’s established procedures for reporting sexual harassment, they failed to utilize them. There is no evidence as to any of the claimants in this category that CRST had alternate means of knowledge, besides the EEOC’s blanket assertion that CRST should have known that these claimants were suffering from sexual harassment because of various other reports. The failure to comply with the reporting procedures, and the lack of facts suggesting that CRST had any way of gaining knowledge of the harassment absent compliance with the reporting procedures, made such claims frivolous, unreasonable and/or groundless. Additionally, the fact that some women ultimately reported the alleged harassment to CRST is of no import—CRST cannot be held liable for harassment which had already ceased by the time it learned of the conduct and it is unreasonable to base a claim on the argument that it could. See, e.g., Cheshewalla v. Rand & Son Constr. Co.,
The court is mindful, in this instance, of the manner in which the EEOC brought a majority of the claims now at issue. In the weeks leading up to the court-imposed deadline for the EEOC to identify the individual claimants on behalf of whom it was seeking relief, the EEOC piled on claim after claim in a last-ditch attempt to inject as many claimants into the litigation as possible. See CRST Remand Brief at 10-11 (“EEOC identified most of its claims on or just before the deadline. In the last eight days before the October 15, 2008 deadline, EEOC nearly quadrupled the number of individual claims it identified— from 76 to 275.”). As CRST notes, over half of the seventy-eight claims now at issue were added on the date of the deadline. Id. at 11. The haste with which many of the claims were brought further militates in favor of finding that the claims at issue lacked a sufficient basis in fact when they were brought. A more thorough vetting process would have revealed the weaknesses in these claims and the record is clear that CRST lacked actual notice of any alleged harassment due to the claimants’ failure to comply with CRST’s reporting policies. Therefore, the court finds that claims that the court ultimately dismissed for lack of notice to CRST were frivolous, unreasonable and/or groundless when brought,
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The court notes that the claims brought on behalf of Linda Connor, Tamara Dem-ery, Virginia Mason, Lucinda McBlair, Rosalyn Daniels, Shirley Parker and Sheree
Further, as to the claim brought on behalf of Kristi Allen, the court finds that the portion of her claim pertaining to her co-drivers Steven McCauley and Jeff Hudson was frivolous, unreasonable and/or groundless. Allen attended her- driver orientation in Cedar Rapids, Iowa, where she was given a copy of the driver’s handbook. See Omnibus Rule 56 Appendix at 123-24. Allen admitted at her deposition that she received and covered CRST’s sexual harassment policy at orientation. Id. at 125. Allen further admitted that she had the telephone numbers for human resources and her dispatcher, whom she acknowledged was her immediate supervisor, in her cell phone. Id. During her tenure with CRST, Allen alleges that she was harassed by her trainer, Dean Hale, and two of her co-drivers, McCauley and Hudson. Id. at 127. Allen admitted that she never reported any of the alleged harassment perpetrated by McCauley or Hudson to her fleet manager, operations or human resources. See id. at 133, 135; see also id. at 136 (noting that Allen did not recall having “any other conversations with anyone at CRST, either fleet managers or anyone in operations or human resources” about any of the alleged sexual harassment besides Hale’s conduct, which the court shall discuss below). Accordingly, as to Allen’s claim as it pertains to McCauley and Hudson, the court finds that such claim was frivolous, unreasonable and/or groundless and can support an award of fees for work performed on those allegations.
Similarly, as to the claim brought on behalf of Darlene Miller, the court finds that the portion of the claim pertaining to Miller’s co-driver, Ken Mowerson, was frivolous, unreasonable and/or groundless. Miller attended orientation in Cedar Rapids, Iowa, where she received a copy of CRST’s driver’s handbook and reviewed CRST’s policies, including CRST’s sexual harassment policy. See id. at 1895-98. Miller acknowledged that she understood that “it was CRST’s policythat anyone witnessing or subjected to sexual harassment should report it immediately” and further understood her immediate supervisor to be her fleet manager. Id. at 1898. Miller alleges that, during her time working for CRST, she was harassed by her first trainer, whose name she could not recall, and two of her co-drivers, Mowerson and John Roum. Id. at 1898-99. Miller admitted that she never contacted anyone at CRST regarding Mowerson’s harassment until after she had quit CRST, and even then could not recall whether she specifically related the harassment. Id. at 1903, 1909. Accordingly, as to Miller’s claim as it pertains to Mowerson, the court finds such claim was frivolous, groundless and/or unreasonable.
The claim brought on behalf of Sherry O’Donnell is similar to that brought on behalf of Miller, O’Donnell attended, orientation in Oklahoma City, Oklahoma, where she received a copy of CRST’s handbook, acknowledged receipt and understanding of CRST’s various policies, including its policy regarding sexual harassment, and evinced an understanding of CRST’s reporting policy. Id. at 1987-90. O’Donnell alleged that she was harassed by her co-driver Anthony Sears and second-wave trainer Bill Campbell. O’Donnell admitted that she never contacted anyone at CRST regarding the harassment perpetrated by Campbell until after she had been terminated. Id. at 2007.
Debra Hindes alleges that she was harassed by two trainers, Marvin (“Curly”) Timmerman and Bobby Roberts, as well as a co-driver, R. Bell, Jr. See id. at 1360. Hindes attended orientation in Cedar Rapids, Iowa and there reviewed the Professional Driver’s Handbook and CRST’s sexual
However, as to Betsy Ybarra, the court cannot say that the claim was frivolous, unreasonable and/or groundless. During her deposition, though Ybarra admitted to receiving a handbook outlining CRST’s procedures regarding sexual harassment and signed an acknowledgment that she had read and understood the sexual harassment procedures, she staunchly refused to state that she actually read and understood the policy during her deposition. See id. at 3400-01. Unlike the other claimants for whom the court relies on the acknowledgment of the sexual harassment policies to find that their claims were frivolous, unreasonable and/or groundless, Ybarra further stated that she must have lied on the original acknowledgment she signed with CRST, because she knew that they had not covered sexual harassment during orientation and did not subsequently read the policy or the handbook. Id. Accordingly, the court cannot say that the claim the EEOC brought on behalf of Ybarra was frivolous, unreasonable and/or groundless and fees on this claim are inappropriate.
In sum, the court finds that there was no basis in fact for the claims which the court dismissed for lack of notice where the women acknowledged receiving CRST’s driver’s handbook and sexual harassment policy, which clearly laid out a reporting procedure for sexual harassment, and where the women failed to so properly report the alleged harassment. The fact that CRST was generally aware of a number of complaints of sexual harassment stemming from male/female driving teams was insufficient to impute knowledge to CRST of all alleged sexual harassment occurring in its trucks. The court finds that the claims on behalf of the twenty-six women outlined in the table above were frivolous, unreasonable and/or groundless. The court further finds that the portions of the claim based on Kristi Allen’s allegations regarding her co-drivers Steve McCauley and Jeff Hudson were frivolous, unreasonable and/or groundless. Similarly, the court finds that the portion of the claim based on Darlene Miller’s allegations regarding her co-driver Ken Mowerson was frivolous, unreasonable and/or groundless. The portion of the claim based on Debra Hindes’s allegations regarding her co-driver R. Bell, Jr. was also frivolous, unreasonable and/or groundless. Finally, the court finds that the claim brought on behalf of Betsy Ybarra was not frivolous, unreasonable and/or groundless.
d. Complaint properly remedied
CRST argues that each claim that the court dismissed because CRST took appropriate action upon being informed of the alleged harassment was frivolous, unreasonable and/or groundless. The claim that the EEOC brought on behalf of Samantha Cunningham is typical of this type of argument and claim. See, e.g., CRST Remand Brief at 47-49. Cunningham alleged that she was harassed by her second trainer, Neal Page. Id. at 47. During her time driving with Page, Cunningham alleged that Page engaged in a variety of sexually offensive behaviors, including describing his genitals, telling her that he wanted to have sex with her and describing sexual acts that he wanted to perform on her. See, e.g., Omnibus Rule 56 Appendix at 785-86. After Cunningham ended her route with Page, she went back home with her fiancé, but was apparently scheduled
CRST argues that this claim was frivolous, unreasonable and/or groundless when brought because the “EEOC knew or should have known that CRST promptly and effectively remedied the situation once it was notified of it. CRST’s response upon learning of the alleged harassment prevented any future sexual harassment.” CRST Remand Brief at 49. The EEOC does not specifically address CRST’s contention that claims similar to Cunningham’s were frivolous, unreasonable and/or groundless—rather, it relies on its general defense that the claims it asserted on behalf of these women were reasonable because all of the claims that the court dismissed “for failure to establish a basis for CRST’s liability were not frivolous,” See EEOC Remand Brief at 37 (formatting omitted).
It is well established law that, “[o]nce an employer becomes aware of harassing conduct, it must promptly take remedial action which is reasonably calculated to end it.” Powell v. Yellow Book USA Inc.,
As the court noted in its April 30, 2009 Order, CRST often took one of a number of courses of action following an allegation and investigation of sexual harassment. See April 30, 2009 Order at 49-51. For example, “[a]t least one male driver was fired after he admitted to sexually harassing a female coworker. Further, CRST
These sorts of actions certainly constitute remedial actions. For each of the claims for which CRST requests fees on this basis, CRST took prompt action that was reasonably calculated to end .the harassment and, in fact, removed the woman from the harassing environment and her harasser completely. Additionally, for the reasons stated in Part III.D.2.C supra, the court rejects the EEOC’s general contentions that its claims were nonfrivolous or reasonable because CRST should have generally been aware that all of its female drivers were suffering sexual harassment. It is also undisputed that the
Accordingly, the claims on behalf of the following women were frivolous, unreasonable and/or groundless—as with the claims above, the court lays these claims out in table format, alongside citations to the record demonstrating that the claimant admitted that she had received or
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As with the claims discussed above, the court notes that the claims brought on behalf of Dequinda Harris, Tracy Hughes, Brenda Kennett, Nona McCuien, Christine Taylor and Sheila Wyrick were all dismissed on two grounds—that CRST promptly remedied alleged harassment and that the acts by the alleged harasser did not constitute severe or pervasive harassment. Because the court has found that the claims were frivolous, unreasonable and/or groundless because the claimants were promptly removed from their harasser and the situation was remedied, the court need not and shall not consider whether the claims were also frivolous, unreasonable and/or groundless based on the severity or pervasiveness of the alleged acts.
The court finds that the claims that the EEOC brought on behalf of Kristi Allen as they pertain to the harassment perpetrated by her trainer, Dean Hale, were
As the court noted above, Debra Hindes attended orientation in Cedar Rapids, Iowa and there reviewed the Professional Driver’s Handbook and CRST’s sexual harassment and reporting policies. Id. at 1347. As to the portion of Hindes’
As the court noted above, Darlene Miller alleges that, during her time working for CRST, she was harassed by her first trainer, whose name she could not recall, and two of her co-drivers, Ken Mowerson and John Roum. Miller received a copy of CRST’s driver’s handbook and reviewed CRST’s sexual harassment policy, understanding it to require prompt reporting to her fleet manager. See id. at 1895-98. Miller alleges that, at one point during training, she awoke to find her trainer naked on the truck. Id. at 1899. Miller immediately
As the court noted above, Sherry O’Donnell alleges that she was harassed by her co-driver Anthony Sears and second-wave trainer Bill Campbell. O’Donnell attended orientation in Oklahoma City, where she received a copy of CRST’s handbook and acknowledged receipt and understanding of CRST’s various policies, including its policy regarding sexual harassment and evinced an understanding of CRST’s reporting policy. Id. at 1987-90. O’Donnell alleges that Sears repeatedly told her that he was looking for a girlfriend to be his co-driver and invited her, on multiple occasions, to drive naked; Sears frequently drove without pants on, in only his boxer shorts; Sears, threatened O’Donnell with physical violence by pretending to kick her in the face and, on one occasion, physically grabbed O’Donnell’s face with his fingers and caused her to cut her lip after she told him she did not want to be his girlfriend. Id. at 1993, 1996-97, 2020-21. Following the incident of physical violence, O’Donnell contacted CRST and reported that she wanted to get off. the truck. Id. at 1997. That same date, CRST took her off the truck with Sears and O’Donnell never had to drive with Sears again. Id. at 1998. O’Donnell admitted at her deposition that she was pleased at the speed with which CRST took action. Id. Accordingly, the court finds that O’Donnell’s allegations as they relate to Sears render the claim frivolous, unreasonable and/or groundless. Because the court has determined that O’Donnell’s allegations as to both of her harassers were frivolous, unreasonable and/or groundless, the court need not and shall not reach the alternate ground that O’Donnell did not suffer severe or pervasive harassment.
Faith Shadden alleged that she was harassed by several men during her tenure with CRST: her unnamed first co-driver, three other co-drivers and her trainee Carl Bowling. See id. at 2596, 2602-04. Shadden admitted'at her-deposition that, to become a trainer, she was required to attend an orientation covering, among other things, CRST’s employee handbook and sexual harassment policy. Id. at 2599; see also id. at 2616-19 (acknowledgments signed by Shadden indicating that she had received, reviewed and understood CRST’s various policies, including its' • sexual harassment policy). Shadden alleges that Bowling requested' that she tell other people that she was his girlfriend, on one . occasion asked her to get in his bunk with him while he was only wearing boxer shorts and on one occasion laid in her bunk with her and refused to get out when
Finally, the court finds that the EEOC’s claim on behalf of Kathleen Seymour was not frivolous, unreasonable or groundless. Seymour states that she received a driver’s handbook at orientation. See id. at 2576. However, during her deposition, Seymour adamantly refused to admit that she had reviewed the handbook or CRST’s policies, including the policy regarding sexual harassment. Id. While Seymour admitted that she had signed acknowledgments that she had received, read and understood the handbook and policies, she stated that such acknowledgments were not true at the time that they were signed. Id. at 2577.' In fact, Seymour testified that CRST affirmatively told the students at orientation not to read the handbook or policies and to sign the acknowledgments anyway. See id. at 2578 (stating that CRST “knew we didn’t read [the handbook]” and “we were told to do it in our trucks later on”). Because Seymour allegedly did not know of CRST’s policy regarding reporting sexual harassment, and because the burden. to demonstrate that Christiansburg has been met falls on the party seeking fees, the court cannot And that the EEOC’s claim was frivolous, unreasonable and/or groundless. The EEOC had a reasonable basis to proceed on this claim due to Seymour’s alleged lack of knowledge of any of,, CRST’s policies regarding sexual harassment, though it was ultimately unsuccessful. See Chris-tiansburg,
In sum, the court finds that there was no basis in fact for the claims which the court dismissed where the claimant was aware of CRST’s reporting policy, followed it and CRST reasonably remedied the alleged harassment. The court finds that the claims on behalf of the seventeen women outlined in the table above were frivolous, unreasonable and/or groundless. The court further finds that the portions of the claims based on: Kristi Allen’s allegations regarding her trainer, Dean Hale; Debra Hindes’s allegations regarding her second trainer Bobby Roberts; Darlene Miller’s allegations regarding her unnamed first trainer and co-driver John Roum; Sherry O’Donnell’s allegations regarding her co-driver Anthony Sears; and Faith Shad-den’s allegations regarding her trainee Carl Bowling were frivolous, unreasonable and/or groundless. Finally, the court finds that the claim brought on behalf of Kathleen Seymour was not frivolous, unreasonable and/or groundless.
e. Not severe or pervasive
CRST argues generally that, because the EEOC could not establish a prima facie case for any of the claimants, its claims were necessarily frivolous, unreasonable and/or groundless. See CRST Remand Reply at 13. The EEOC generally argues that the claims that the court dismissed because the evidence did not show that the claimant suffered from severe or pervasive harassment were not frivolous, unreasonable and/or groundless because “[t]here is no bright line rule as to whether a sexual harassment complaint is severe enough or pervasive enough to establish a hostile environment under federal law.” EEOC Remand Brief at 28. The EEOC cites to authority stating that “no single factor is required or determinative [of the issue], and the relevancy and weight of any factor must be evaluated in light of all the facts of a specific case.” Id. at 29 (quoting Hathaway v. Runyon,
“The Supreme Court has determined ... that sexual harassment ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’ qualifies as [unlawful] sex discrimination under Title VII.” Adams v. O’Reilly Auto., Inc.,
As with the claims the court dismissed for lack of notice and because CRST properly remedied the alleged harassment, the court shall present the remaining claims in table format, along with relevant facts and a determination of whether the alleged facts were sufficiently severe or pervasive to warrant a finding that the claim was not frivolous, unreasonable and/or
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Debra Hindes alleges that she was sexually harassed by two trainers, Marvin (“Curly”) Timmerman and Bobby Roberts, as well as a co-
Faith Shadden alleged that she was harassed by: her unnamed first co-driver, three other co-drivers (David Bergner, Andre Collins and an unnamed Latino driver from Los Angeles) and her trainee Carl Bowling. See id, at 2596, 2602-04. The court has already discussed the harassment by her unnamed first co-driver and Bowling, above. Shadden alleges that Bergner, Collins and the unnamed Latino driver “were all one-timers pretty much” in that “[t]hey hit on you once. You tell them no and they kind of get the picture.” Id. at 2602. The court finds that, as to these drivers, the EEOC’s claim on behalf of Shadden was frivolous, unreasonable and/or groundless. There is simply no basis in fact or law to support a hostile work environment claim as to these three drivers. Because the court has also found that the EEOC could not have reasonably based a claim on Shadden’s behalf as to the unnamed first co-driver and Bowling, the court shall grant fees as to Shadden’s claim in total.
Finally, Linda Skaggs alleges that she was harassed by her trainer, Dartmouth Robinson, and a co-driver, Eules Baker, Jr. Id. at 2865, 2867. The court addressed Skaggs’s allegations pertaining to Robinson above in discussing the statute of limitations. Skaggs alleges that Baker began making inappropriate sexual comments almost immediately after they were paired together, boasting about his sexual prowess and experiences. Id. at 2868. Skaggs testified that these sort of comments were ongoing, an almost daily occurrence. Id. Baker propositioned Skaggs approximately five times for sex or sexual favors, including graphically stating that he wanted to have sex with her. Id. at 2869. On one occasion, Baker offered to give Skaggs money in exchange for sex. Id. As to the EEOC’s claim on behalf of Skaggs as it relates to Baker, the court finds that it was not frivolous, unreasonable and/or groundless. There was sufficient evidence to reasonably believe that Skaggs may have suffered severe or pervasive sexual harassment. Though the court ultimately found that summary judgment was appropriate, a finding that was affirmed by the Eighth Circuit, the court cannot say that CRST has carried its burden of demonstrating that the claim was frivolous, unreasonable and/or groundless as it pertains to Baker. Accordingly, the court shall deny fees as to that portion of the claim.
In sum, the court has found that the claims that the EEOC brought on behalf of Dorothy Dockery, Victoria Holmes, Faith McDaniel, Cristina Payne and Isabel Perez all had sufficient facts of sexual harassment such that they were not frivolous, unreasonable or groundless. There was a sufficient basis for bringing the claims and fees on such claims are not appropriate. Moreover the claim brought on behalf of Jonne Shepler as it relates to her allegations regarding her trainer John Kewley, and the claim brought on behalf of Linda Skaggs as it relates to her allegations regarding her co-driver Eules Baker, Jr. similarly warrant a finding that such claims were not frivolous, unreasonable or groundless. Fees on those portions of those claims are not appropriate. However,
3. Summary
The court has carefully considered each of the seventy-eight claims dismissed on summary judgment and determined that, as to the claims that the EEOC brought on behalf of seven women—Dorothy Dockery, Victoria Holmes, Faith McDaniel, Cristina Payne, Isabel Perez, Kathleen Seymour and Betsy Ybarra—such claims had a sufficient basis in law or fact such that they were not frivolous,- unreasonable or groundless. The court shall deny CRST appropriate fees on those claims in whole. The court has further determined that the claims of two women—Jonne Shepler and Linda Skaggs—were sufficient as they relate to specific allegations, such that they were not wholly frivolous, unreasonable and/or groundless. As to the remaining women and remaining portions of claims, the court found such claims to be frivolous, groundless and/or unreasonable for a variety of reasons: the EEOC never properly pled a pattern-or-practice claim, such that any claims predicated on that method of proof satisfied Chnstiansburg] the claimants admitted that they never utilized CRST’s reporting procedure, a procedure of which they were admittedly aware, and thus failed to give CRST proper notice; the claimants that complained to CRST of sexual harassment had their complaints properly and promptly remedied; and the claimants did not suffer harassment that was sufficiently severe and pervasive. The court has also determined, on remand from the Supreme Court and then the Eighth Circuit, that the claims it dismissed due to the EEOC’s abdication of its presuit statutory requirements not only constituted a sufficient alteration of the legal relationship of the parties to make CRST a prevailing party, but also that such claims satisfied Christiansburg, as the court has found numerous times previously. In short, fees for all but seven claims, and portions of two claims, from the court’s original fee award should be preserved here. The court shall now consider the EEOC’s argument that no fees can be awarded under Fox and, if the court finds fees to be appropriate, make a reasonable calculation of such fees.
E. Reasonable Fees
As the court noted above, CRST argues that each of the claims for which it now seeks fees meet the Fox standard. In order to calculate such award, CRST took the court’s previous total fee award for the pre-appeal period and subtracted the amounts it believed it spent to prepare its defenses for the class of claims dismissed for failure to comply with presuit requirements and the amount that it spent preparing for its defense to the EEOC’s purported pattern-or-practice claim. See CRST Remand Brief at 170. It then took that figure and divided it into 152 equal parts, each part representing one claimant for which the court granted its original fees award. Id. CRST then took that figure and multiplied it by seventy-eight, the number of claimants for which it now seeks fees. Id. It then added the fees it expended on the pattern-or-practice claim back into that award, for a total of $2,326,512.08. Id. at 171. It then determined the appellate fee award it currently seeks by determining the product of: (1)
CRST argues that it should be entitled to recover the entirety of the fees it expended on the pattern-or-practice claim because, while the Eighth Circuit barred the court from awarding fees directly on such claim, it “did not address whether CRST should be awarded its fees and expenses on the ground that [the] EEOC had asserted and relied on its pattern or practice allegations to support its individual claims that had been dismissed on the merits.” Id. at 163. CRST argues that the EEOC’s consistent reliance on its pattern or practice allegations to shore up its case with respect to all of the claims in the instant action essentially shoehorns it in to the merits of the individual claims, such that an award of fees for this issue is appropriate, not as its own claim, but as part of the total fee award for the individual claims. Id. at 164. CRST makes three separate arguments regarding why the pattern-or-practice fees are appropriate under Fox-, (1) except for the EEOC’s claim on behalf of Starke, all of the claims were frivolous and unreasonable, thus any work related to the pattern-or-practice claim, not attributable to Starke’s claim, was done solely because of frivolous claims; (2) the pattern-or-practice fees fit under a certain “exception” to Fox’s but-for causation requirement because the only fees for which CRST had monetary exposure were the seventy-eight claims dismissed on the merits, as the balance of the claims were dismissed for failure to comply with pre-suit requirements or as interven-ers; and (3) the pattern-or-practice issue would not have been litigated but for the EEOC’s inclusion of all claims other than Starke’s. Id. at 166-67. Finally, CRST provides an alternate pattern-or-practice fee award based on “a pro-rata share of the fees and costs it expended successfully litigating [the pattern-or-practice claim] ... to each of the [seventy-eight] claims for which it seeks a fee recovery.” Id. at 167.
Finally, CRST argues that it should collect an award of appellate fees because the EEOC failed to establish a prima facie case for the thirty-three claims that it appealed. Id. at 168. CRST argues that, “[t]he standard of review was de novo, and thus the [Eighth Circuit] reached the same decision [the court] had reached: that none of the [thirty-three] claims asserted a prima facie claim- of' sexual harassment against CRST.” Id. (formatting omitted).
The EEOC argues that CRST cannot recover fees for any of the claims that the court found were frivolous, unreasonable and/or groundless because it cannot meet the demands of Fox. See EEOC-Remand Brief at 7-16. In particular, the EEOC argues that CRST cannot tie any of the fees it seeks to recover to specific work performed for any individual claimant. Id. at 7. Instead, CRST has calculated its proposed award “by identifying three types of fees by category: ‘experts,’ ‘pattern and practice’ and ‘pre-suit requirements,’ subtracting those fees from the prior fee award, and calculating an average fee per claimant.” Id. The EEOC also criticizes CRST for seeking fees based on its defeat of the pattern-or-practice claim, which was defeated as its own claim, not as part of any individual claim. Id. The EEOC argues that it cannot challenge any of the particular fees that CRST seeks because CRST has not provided spreadsheets or tables documenting the. amount of fees it seeks. Id. at 8.
The EEOC points out that the categories of fees that CRST now seeks are
The EEOC disagrees with CRST’s reading of Fox and the so-called “exception” to the “but-for” rule outlined in Fox. See id. at 15. The EEOC first points out'that the “exception” relied upon by CRST is not a true exception but is instead an illustration of the but-for rule. Id. It also argues that CRST was incorrect insofar as it alleged that the seventy-eight claims were the only claims for which CRST had financial exposure, because the claims that were dismissed for faitee to pursue presuit requirements were nonfrivolous and could have carried financial exposure. Id.
Finally, the EEOC argues that appellate fees are not appropriate. See- id. at 31-35, The EEOC argues that CRST’s argument essentially conflates the EEOC’s ultimate inability to prevail on appeal to the fact that it.was a frivolous appeal. Id. at 32. The EEOC contends that “CRST has not attempted to show that ‘no reasonable person would have thought he could succeed’ on the claims EEOC appealed or that there was ‘no foundation in law upon which the appeals] could be brought.’ ” Id. at 32-33 (alteration in original) (quoting E.E.O.C. v. CRST Van Expedited, Inc., 774F.3d at 1185), The EEOC argues that none of its appeals were frivolous, unreasonable or groundless because it made good-faith legal arguments regarding whether CRST’s trainers constituted supervisors and whether CRST had constructive notice of the alleged harassment based on the number of complaints CRST received and Eighth Circuit, precedent. Id. at 33-34. The EEOC also argues that CRST fails to identify the fees that it would not have incurred but for the frivolous appeals. Id. at 35.
In response, CRST reiterates its general arguments that its request complies with Fox. See CRST Remand Reply at 5-8. CRST acknowledges that “more trial preparation work may have been done on the [seventy-two] claims ... dismissed, on pre-suit requirements grounds than on the [seventy-eight] claims dismissed on summary judgment” and that “CRST’s average fees and expenses for these [seventy-eight] claims may be too high.” Id. at 9-10. Thus, CRST reduced its requested fee award by $4,452.69 for a total fee award request of $2,465,541.74. Id. at 10, 27; CRST also generally criticizes the EEOC’s technocratic approach to .the fee. award, 'arguing that the “EEOC’s erroneous,arguments against a fee. award demonstrate that the agency has lost sight of the Supreme Court’s admonition in, [Fox ], that a fee request should be treated in a practical,
The court agrees with CRST on this final point. While the court is mindful of Fox’s admonition that only those fees attributable to frivolous claims should be awarded, the Supreme Court did not condone the strict, technocratic approach for which the EEOC advocates. The Supreme Court noted that the application of the Fox standard should be done flexibly in light of the specifics of each case. For example, the Supreme Court noted that merely looking toward the number of hours billed may not be enough in a specific circumstance, and the court should look to the context in which fees were incurred. See Fox,
Thus, the court finds that the general method by which CRST calculated the fees it now seeks was appropriate. CRST took the court’s original fee calculation, subtracted the fees which the Eighth Circuit declared could not be awarded and then created a per-claimant average for the remaining fees. It then calculated the per-claimant average by the number of claims for which it currently seeks fees. Being mindful of the manner in which this case was litigated, the court’s familiarity with the proceedings and the Supreme Court’s admonition to do “rough justice,” the court finds that this method properly approximates the amount of fees expended for each claimant. The court has carefully and thoroughly examined the supporting documentation that CRST has provided in support of its fee request and finds it adequate to support an award of fees. See CRST Remand Brief Exhibit 2 (docket no. 416-2); CRST Remand Brief Exhibit 6 (docket no. 416-6); CRST Remand Reply at 29-32. The court shall address the specific fee calculation below, but shall first discuss whether fees for the pattern-or-practice claim and/or the 2012 merits appeal are appropriate.
1. Pattem-or-practice fees
The court finds that so-called “pattern- or-practice fees” are appropriate for the claims that the court dismissed because
CRST seeks the entirety of the fees it expended on the pattern-or-practice claim because the EEOC relied on the pattern- or-practice allegation to argue for punitive damages and as a burden-shifting mechanism as to all of the individual claims. See CRST Remand Brief at 163-64. However, the court declines to award the entirety of the pattern-or-practice fees on this basis. The reasons that CRST cites for why it believes it is entitled to the entirety of the fees are essentially the reasons that the EEOC gave in bringing the pattern-or-practice allegations in the first instance. To now award CRST all of the fees it expended to defend against such allegations would be essentially to award fees just on the pattern-or-practice claim, a practice the Eighth Circuit prohibited. Similarly, the court views CRST’s secondary “pro rata” argument as overbroad as well. The court declines to grant a pro rata share of the pattern-or-practice fees for all seventy-eight claims for which it now seeks fees. The court does not view such pro rata share as being incurred but for the frivolous, unreasonable and/or groundless claims at issue here. As the court exhaustively noted above, the court had independent grounds for awarding fees on behalf of all claimants but the ones dismissed due to the statute of limitations and where the EEOC conceded the conduct was not severe or pervasive.
Thus, the court finds that the appropriate award for those claims is: $53,336.16. The court arrived at this number by taking CRST’s calculated total dollar amount attributable to the pattern or practice issue, $456,320.90, dividing it by 154, the total number of individual claims brought by the EEOC, to get the average dollar figure per claimant, $2,963.12. The court then multiplied that number by the seventeen claimants which depended upon the improper pattern-or-practice claim to remain viable, and added an additional $2,963.12, which represents two “half-shares” for the portions of Faith Shadden and Linda Skaggs’s claims that the court found were
2. Appellate fees
The court declines to award appellate fees. CRST’s arguments on this issue are not well taken. The fact that the Eighth Circuit conducted a de novo review on appeal and reached the same conclusion as the court as to the thirty-three claims for which CRST seeks appellate fees, does not alone render the EEOC’s appeal of those claims frivolous, unreasonable and/or groundless. To the contrary, though CRST rightfully does not seek fees as to Tillie Jones or Monika Starke, the EEOC was ultimately successful on its appeal as to two of the women, the grounds for appeal of which were substantially similar to many of the claims for which CRST now seeks appellate fees. In short, the court cannot find that CRST has carried its burden of demonstrating that the appeal was frivolous, unreasonable or without foundation. Accordingly, the court declines to award appellate fees.
3. General fees
The court previously awarded $4,229,211.67 in attorneys’ fees, out-of-pocket expenses and taxable costs for the pre-appeal period. See August 1, 2013 Order. In order to arrive at its proposed fee award, CRST subtracted $128,414.60, which represents “fees for work on the pre-suit requirements issue,” and then a further $466,320.90 for fees for work on the pattern-or-practice allegation. See CRST Remand Brief at 170. CRST then took that $3,644,476.27, which represents the originally-awarded fees associated solely with the individual claims dismissed on summary judgment, and divided it by 162, the number of claims on which the August 1, 2013 award was based. Id. The resulting figure, $23,976.81, is the average amount of fees and costs expended per claimant. Id. CRST then multiplied that figure by seventy-eight, the number of claims for which CRST requests an award. Id.
However, because the court has found that the EEOC’s claims on behalf of Dorothy Dockery, Victoria Holmes, Faith McDaniel, Cristina Payne, Isabel Perez, Kathleen Seymour and Betsy Ybarra were not frivolous, unreasonable and/or groundless, the court must exclude them from the factor of claims for which the court is granting fees. Additionally, the court shall reduce this factor by an additional $23)976.81 for the portions of Jonne She-pler and Linda Skaggs’s claims that the court found were not frivolous, unreasonable and/or groundless. Thus, the court’s calculated award for the individual claims comes to $1,678,376.70.
From that figure, the court adds the additional $53,336.16 for the pattern or practice claims and then adds back in the $128,414.50 representing the claims dismissed for failure to comply with presuit requirements, which the court has now determined should be granted. The court further declines to reduce the fee award by the additional $4,452.69 conceded by CRST in the'CRST Remand Reply. Such amount was subtracted because it appeared as if the fees were disproportionately being spent on the claims dismissed for presuit requirements as the case drew closer to trial and the court began issuing orders on summary judgment. See CRST Remand Reply at 9-10. Because the court has determined that fees for the claims dismissed for failure to comply with pre-suit obligations should now be awarded, there is no need to calculate this further reduction. Because the court has declined to award fees for the appeal, the court shall not add any additional fees for the
As the court has noted above, such award is not based on mathematical precision and nicety, rather it is arrived at under a flexible and commonsense application of the Fox standard in light of the realities of the case, how it was litigated and the court’s unique understand of these proceedings. The goal under Fox is to aim for “rough justice,” and rough justice has been achieved.
IV. CONCLUSION
In light of the foregoing, CRST is AWARDED attorneys’ fees, out-of-pocket expenses and taxable costs in the amount of $1,860,127.36. The court shall direct the Clerk of Court to enter judgment after the court rules- on CRST’s pending Motion for Supplemental Fee Award (docket no. 455).
IT IS SO ORDERED.
Notes
. The Eighth Circuit has stated that it “has 'the discretion to consider an issue for the first time on appeal where the proper resolution is beyond any doubt ... or when the argument involves a purely legal issue in which no, additional evidence or argument would affect the outcome of the case.' ” Gap, Inc. v. GK Dev., Inc.,
. Because the court finds that a party need not obtain a preclusive judgment in order to obtain prevailing party status, the court does not reach the question of whether the sixty-seven claims at issue here were dismissed with or without prejudice. But compare August 13, 2009 Order (docket no. 263) at 39-40 (stating that the EEOC was barred from pursuing the claims on behalf of the remaining claims in the case and.stating that the EEOC's complaint is "DISMISSED” (formatting omitted), with Fed, R. Civ, P. 41(b) ("Unless the dismissal order states otherwise, ... [an involuntary dismissal sought by a defendant] and any dismissal not under this rule—except one for lack pf jurisdiction, improper venue, or failure to join a party under Rule 19— operates as an adjudication on the merits.”).
. However, the court does agree with the EEOC that CRST’s argument that a claim can be barred by res judicata or collateral estop-pel, yet not be preclusive, makes little sense. See EEOC Brief at 10 n,3; see also CRST Brief at 3. If a later claim is barred by res judicata or collateral estoppel then, by definition, the earlier judgment indeed had a pre-clusive effect—as it prevents a litigant from later asserting the same claim.
. The court uses the term "merits appeal” to refer to the 2012 appeal of the court’s various orders granting summary judgment and dismissing claims for failure to comply with pre-suit requirements. See E.E.O.C. v. CRST Van Expedited, Inc.,
. The court notes that CRST has requested fees associated with the 2014 appeal in its Motion for a Supplemental Fee Award (docket no, 455). The court shall address whether fees for the 2014 appeal are appropriate in a separate order. The only appellate fees at is- • sue here pertain to the merits appeal.
. The court notes that CRST argued, alternatively, that “[a] Supreme Court decision holding that EEOC’s failure to comply with Title VII’s pre-suit requirements entitles CRST to an award of fees and expenses with respect to the Pre-Suit Requirements Dismissed Claims would also support an award of fees and expenses to CRST for the Summary Judgment Dismissed Cláims,” CRST Supplemental Brief at 3. However, the court finds that this issue has not been adequately briefed, and thus . declines to award fees on this basis.
. CRST also argues that Aguilar’s claim was frivolous, unreasonable or groundless because none of the conduct of which Aguilar com-pl'ained could possibly meet the standard for severe or pervasive sexual harassment. Id. at 22. ....
. Shadden and Skaggs both alleged that they were harassed by multiple men during their employment with CRST. This ground pertains only to those allegations of harassment which were clearly barred by the statute of limitations. The allegations of harassment that were not barred by the statute of limitations are addressed as appropriate below.
. In the EEOC Resistance to CRST’s Motion for Summary Judgment Against Class Members Who Allegedly Did Not Experience Severe or Pervasive Sexual Harassment (docket no. 164), the EEOC admitted that Christie Basye, Andrea Cantrell, Meredith Carney and Helen Ferrell did not suffer severe or pervasive sexual harassment. See id. at 31. In its July 9, 2009 Order (docket no. 258), the court noted that the EEOC had "condede[d] four ... allegedly aggrieved persons, Mss. Kathy Cannoles, Madeline Lovins, Laura Taylor and Laurie Thompson, did not suffer actionable sexual harassment.” Id. at 3.
. This citation refers to the appendix filed in support of CRST’s "Omnibus LR 56(a)(3) Statement of Undisputed Facts in Support of [Its] Motions for Summary Judgment” ("Omnibus Statement of Facts”), which was filed in separate but consecutively paginated docket entries at docket nos. 148-6 through 148-41. The court shall refer to such consecutive pagination when citing to the Omnibus Rule 56 Appendix in this Order.
.Like the Omnibus Rule 56 Appendix, the Omnibus Statement of Facts was filed in separate but consecutively paginated docket entries at docket nos. 148-3 and 148-4. The court shall refer to such consecutive pagination when citing to the Omnibus Statement of Facts in this Order. Additionally, the court notes that the EEOC has not objected to or challenged the specific factual allegations that CRST makes with respect to each claimant and, thus, the court adopts them in whole.
. Because the court has found that the claims meet the Christiansburg standard because they lacked a factual basis, the court declines to consider whether the claims were reasonable due to the EEOC's argument that it had a reasonable basis in law to bring the claims under the theory that the lead drivers were the female drivers’ supervisors. But see E.E.O.C. v. CRST Van Expedited, Inc.,
. Although CRST also argues that it promptly remedied Hindes’s complaint as it relates to Timmerman, the court finds that it was not frivolous, unreasonable and/or groundless to bring a claim on Hindes's behalf as it relates to Timmerman because Hindes repeatedly complained to CRST and was told she would have to stay on the truck, On these facts, it was not 'unreasonable, groundless and/or frivolous .to believe that CRST may not have properly remedied the alleged harassment.
. Though Gatewood never explicitly acknowledged receiving the Professional Driver’s Handbook, she did mention what "the driver’s handbook” said during a confrontation with her alleged harasser. Id. The only ' reasonable interpretation of such statement would imply that Gatewood had received and read the Professional Driver’s Handbook.
. Katzka never specifically acknowledged an understanding that her fleet manager was her supervisor. See id. at 1582 (answering ”[n]ot really” when asked if she knew that her fleet managér was her immediate supervisor). However, Katzka did sign an acknowledgment that she read and understood CRST’s sexual harassment policy, which unambiguously states who a driver should contact if he or she feels they have been harassed. Id.
. Like Katzka, McDaniels never specifically acknowledged an understanding that her fleet manager or dispatcher was her immediate supervisor. See id. at 1846 (stating her understanding that the lead driver was her immediate supervisor). However, McDaniels did admit that CRST briefly advised her during training that she could report sexual harassment to human resources and further admitted to having access to the handbook on the truck during training, which unambiguously states who a driver should contact if he or she feels they have been harassed. Id. at 1847,
. Moesch never specifically acknowledged receipt of the Professional Driver’s Handbook, but did express that she received a copy of CRST’s policies, including its policy on sexual harassment. Additionally, she restated CRST’s sexual harassment policies as follows: "If you are in a situation that you do not like, all you need to do is tell somebody and the situation will be taken care of.” Id. at 1915. While this does not explicitly state that the "someone” to whom she referred was her direct supervisor or human resources, she nevertheless acknowledged receipt of the sexual harassment policy, which unambiguously states who a driver to should contact if he or she feels they have been harassed. Id. at 1914.
. Phillips did not specifically state to whom she believed she should have reported any allegation of sexual harassment. Id. at 2270. However, she stated that she “kn[e]w for sure that [the sexual harassment policy] was covered because it's always covered” and, in fact, she retained a copy of the Professional Driver's Handbook and acknowledgment forms until at least the date of her deposition. Id. at 2270-71,
. Like many other claimants, Pile did not specifically acknowledge being told that she should contact her fleet manager or dispatcher if she felt that she had been sexually harassed. Id. at. 2344. However, like the other claimants, Pile did sign an acknowledgment that she had reviewed and understood CRST’s sexual harassment policy, which contains its reporting procedures. Id.
. Pinchem did not specifically acknowledge that she understood that she should contact her fleet manager or dispatcher if she felt she had been sexually harassed. See id. at 2394. However, she did sign an acknowledgment and remembered that the acknowledgment had been "specifically brought to the attention of the class” during orientation. Id. at 2393.
.The court originally dismissed the EEOC's. claim on behalf of Abbott because it determined that she did not suffer severe or pervasive sexual harassment. See July 6, 2009 Order (docket no, 256) at 9-12. However, because the analyses under Christiansburg and the court's consideration of summary judgment in the first instance differ, and because CRST makes the alternate argument that the "EEOC knew'or should have known that Abbott's permanent separation from [her harasser] within a day after her complaint [of his behavior to CRST] further defeated Abbott’s claim,” the court shall consider it, and dispose of it, on these grounds. CRST Remand Brief at 19.
. While Desonier was already off the truck and away from her harasser by the time she contacted CRST to report the harassment, CRST subsequently placed a "no females” designation on the harasser, a measure that Desonier admitted was "[absolutely” a reasonable precaution. Id. at 861.
. Although Femandez-Fabre does not specifically remember discussing the policy at orientation, she did sign an acknowledgment that she received and read the sexual harassment policy and stated that she was "sure [CRST] talked about it” at orientation. Id. at 974.
. The court originally dismissed the EEOC's claim on behalf of Griffith because the record did not show that she suffered severe or pervasive sexual harassment. See July 9, 2009 Order at 5. At that time the court did not reach CRST’s alternate argument that CRST adequately remedied Griffith’s complaint. The court does so now.
. Jenga contends that she was harassed by both her trainer, Lonnie Grimes, and a co-driver, Dustin Delp. While Jenga did not contact human resources about Grimes's alleged harassment, she did contact her student coordinator, who advised her to contact human resources, but nevertheless agreed to find her a new trainer. Id. at 1535.
. Kennett testified that she "didn’t even read” CRST’s sexual harassment policy "but [she] knew to contact” her supervisor or human resources if she experienced something that she felt was harassment. Kennett further admitted that she signed an acknowledgment that she read and understood CRST’s policy and reporting procedures. Id. at 1599, 1600.
.Though McCuien continued driving with her alleged harasser for several days after reporting it to CRST, this occurred as a result of a head injury that McCuien had sustained and because she was concerned about making her way home if she left the truck. See id. at 1809. While her dispatcher offered to have her harasser drop her off sooner, McCuien "begged” her harasser to let her stay on the truck and continue the trip so she could make it home. Id.
. The court originally dismissed Pratt because the evidence did not show that she had suffered severe or pervasive sexual harassment or that CRST should have known of the alleged harassment. See July 9, 2009 Order at 6. However, CRST also argued the alternate ground that CRST properly remedied the alleged harassment. See CRST Remand Brief at 129. The court shall address this claim on that ground.
. Though Pratt does not specifically remember her orientation or covering the sexual harassment policy, she does admit that she signed the acknowledgment that she received and read the policy and further states that she must have read the policy because she signed the acknowledgment. Id. at 2417.
. Quintanilla never specifically acknowledged receipt of the Professional Driver’s Handbook or evinced a specific understanding of CRST’s reporting procedures. However, she did sign an acknowledgment that she had received and understood CRST's sexual harassment policy and procedures. Id. at 2477. In fact, she later did contact her dispatcher to report her harasser’s sexual harassment, demonstrating her knowledge of the proper procedures to follow. See id. at 2486. In any event, the facts are undisputed that Quintanilla did follow CRST’s reporting procedure, even if she did not realize she was doing so at the time.
. Like Quintanilla, Ranney never specifically acknowledged receiving the Professional Driver’s Handbook but did acknowledge receiving and understanding the sexual harassment policy. See id. at 2506. However, Ran-ney, either purposefully or inadvertently, did in fact follow CRST's reporting policy by reporting the alleged harassment through the proper channels. See id. at 2519 (stating that she contacted Lisa Laveclc of CRST about her harasser’s conduct). Additionally, though the record is unclear exactly how long after Ran-ney complained of the harassment that CRST routed her home, the record is also clear that CRST repeatedly asked Ranney what she wanted the company to do. Id. at 2522. Ran-ney repeatedly answered, "I don’t know. I don’t know,” and adamantly refused to allow CRST to place her on a different truck. Id. Eventually, when she stated that she wanted to be routed home, CRST complied. See id.; see also Omnibus Statement of Facts at 464.
. The court originally dismissed Steanhouse on the grounds that she did not suffer severe or pervasive sexual harassment. See July 6, 2009 Order at 13. However, because CRST makes the alternate argument that the EEOC's claim on behalf of Steanhouse was frivolous, unreasonable and/or groundless because CRST properly remedied her claim, the court shall address it here. See CRST Remand Brief at 149.
. Although Wyrick did not specifically discuss receiving the Professional Driver’s Handbook or orientation, she did admit at her deposition that she "knew” the company’s policy regarding sexual harassment and that it was covered during orientation. Id. at 3379.
, CRST also argues that the EEOC’s claim on behalf of Dockery was frivolous, unreasonable and/or groundless because CRST promptly remedied Dockery’s complaints. See CRST Remand Brief at 55. However, because the court has relied on each claimant’s acknowledgment of receipt of CRST’s sexual harassment policy, and because Dockery did not testify about the same at her deposition, the court cannot say that the EEOC's claim on such grounds met the demands of Chris-tiansburg, But see Omnibus Rule 56 Appendix at 924 (signed acknowledgment regarding receipt and understanding of CRST’s sexual harassment policy for Dockery).
. CRST also argues that the EEOC’s claim on behalf of McDaniel was frivolous, unreasonable and/or groundless because McDaniel failed to report the alleged harassment until she left the truck. See CRST Remand Brief at 107. However, CRST only advances the lack of notice as an alternate ground for fees and the court cannot determine, with the limited facts CRST has developed in the record, whether McDaniel was meant to get off the truck with Hines when she did (which would support CRST’s alternative argument) or whether CRST permitted her to stay off the truck (which would support a separate, but not argued for, argument that CRST properly remedied the harassment). See, e.g., Omnibus Statement of Facts at 362 (stating simply that "McDaniel never said anything about her alleged problems with Hines until she was off the truck in Florida”).-
. CRST also argues, in the alternative, that the EEOC’s claim on behalf of Perez was frivolous, unreasonable and/or groundless because Perez failed to report any alleged sexual harassment to CRST. See CRST Remand Brief at 120. However, at her deposition, Perez testified that she informed CRST of her problems with Lopez and that he had raised his arm as if to strike her and called her "the B word,” though she did not use the magic words "sexual harassment.” Omnibus Rule 56 Appendix at 2208. The court finds that this was enough for a party to objectively and reasonably believe that Perez informed CRST of the harassment she allegedly suffered.
. CRST also argues, in the alternative, that the EEOC’s claim on behalf of Shepler was frivolous, unreasonable and/or groundless because Shepler did not give notice to CRST of the alleged harassment until after she was off the truck. See CRST Remand Brief at 142. However, at her deposition, Shepler only stated that she had spoken to her former recruiter at CRST “numerous times” and had generally informed him of the alleged harassment. See Omnibus Rule 56 Appendix at 2643-44, Though Shepler could not be specific about when she spoke to her recruiter, the court cannot find that a claim on her behalf lacked any support in fact. To the contrary, Shepler repeatedly refused to answer whether she told the recruiter of the alleged harassment when she was on the truck or off it, and affirmatively stated that she contacted him "numerous” times. Id. On these facts,-the court finds that this was sufficient for the EEOC to reasonably belieye CRST may have been aware of the alleged harassment.