Lead Opinion
The Equal Employment Opportunity Commission (EEOC) filed suit in its own name against CRST Van Expedited, Inc. (CRST), alleging that CRST subjected Mo-nika Starke “and approximately 270 similarly situated female employees” to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Starke and Remcey Jeunenne Peeples intervened in the EEOC-instituted action and individually pursued their respective hostile work-environment claims against CRST, as well as claims for unlawful retaliation under Title VII and Iowa state law.
The district court ruled in CRST’s favor on a series of dispositive motions that collectively disposed of the entire action. The district court also awarded CRST $92,842.21 in costs and $4,467,442.90 in attorneys’ fees and expenses, pursuant to 42 U.S.C. § 2000e-5(k) and 28 U.S.C. § 1920, as a sanction for the EEOC’s failure to reasonably investigate and conciliate in good faith its claims against CRST.
As set out below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
This consolidated appeal concerns a sweeping employment-discrimination suit that the EEOC instituted against CRST, one of the country’s largest interstate trucking companies. The EEOC alleged that CRST was responsible for severe and pervasive sexual harassment in its New-Driver Training Program (“Training Program”). Because “we are reviewing the district court’s grant of summary judgment against [EEOC, Starke, and Pee-ples], we recite the facts in the light most favorable to [them].” Bonn v. City of Omaha,
A. CRST’s Business Model and Training Program
CRST is an interstate logistics and transit company that employs more than 2,500 long-haul drivers. CRST’s business model relies on an efficiency measure known as “Team Driving.” CRST operates the trucking industry’s largest fleet of team-driven tractor trailers. Specifically, CRST assigns two drivers to a truck who alternate between driving and sleeping on-board in the truck’s sleeper cab for as much as 21 days in order to maximize mileage and minimize stops.
Newly hired drivers must successfully complete CRST’s Training Program before CRST permits them to drive full time for full pay as certified CRST drivers. The Training Program commences with a three-and-a-half day classroom component (“New-Driver Orientation”) to orient the new drivers with CRST’s methods and policies.
During new-driver orientation, CRST distributes to each trainee its “Professional Driver’s Handbook” (“Driver Handbook”), which contains an entirе section devoted to its anti-harassment policy, as well as the procedures for reporting such harassment. Additionally, CRST orientation leaders orally reiterate CRST’s written anti-harassment policy, explain to trainees how they can report harassment complaints, and present a video stressing that CRST will not tolerate sexual harassment. The Driver Handbook expressly forbids sexual harassment, as well as any form of retaliation against complainants of sexual harassment. It also instructs employees who endure or witness harassment or discrimination to immediately report the conduct to either an immediate supervisor or the Director of Human Resources. The Driver Handbook states that “[a]ll reports of harassment and/or discrimination will be handled in a confidential manner.” CRST’s charges its Human Resources Department (H.R.) with enforcing this anti-harassment policy. At New-Driver Orientation’s conclusion, CRST has each trainee sign a written “Acknowledgment and Pledge Concerning Harassment and Discrimination,” attesting to the facts that the trainee “received and read [CRST’s] Policy Against Unlawful Harassment and Discrimination.”
Following orientation, each trainee embarks on a 28-day, over-the-road training trip with an experienced, “Lead Driver,” who familiarizes the trainee with CRST’s Team Driving model and evaluates the trainee’s performance on this maiden haul. At the conclusion of the trainee’s 28-day training trip, the trainee’s Lead Driver gives the trainee “a pass/fail driving evaluation” that superiors consider when determining whether to certify the trainee as a full-fledged CRST driver. But, under CRST’s organizational structure, Lead Drivers lack the authority to hire, fire, promote, demote, or reassign trainees; CRST’s Safety and Operations Departments make all final decisions concerning the trainees’ employment. Still, in a responsive letter to the EEOC correspondence, H.R. Director James Barnes later
B. CRST’s Channels for Reporting Sexual Harassment
CRST accorded its trainees and team drivers multiple channels for reporting sexual harassment. Those channels included (1) CRST’s “open-door policy,” which encouraged all of its employees to approach their supervisors, any employee in the Operations or Safety Departments, or any manager about any issue; (2) toll-free phone numbers for fleet managers who were available around the clock; (3) Qualcomm, a device placed in every truck that transmits messages, similar to emails, directly to fleet managers; (4) H.R.’s nationwide toll-free number and local toll phone number, both of which CRST provided in the Driver Handbook’s section on how to properly report sexual harassment; and (5) evaluation forms given to all trainees at the training trip’s conclusion soliciting each trainee’s feedback concerning his or her lead driver.
C. Starke’s Initiating Charge
On December 1, 2005, Starke filed a charge of discrimination with the EEOC. Therein, Starke alleged that CRST “discriminated against [her] on the basis of [her] sex (female) in that [she] was subjected to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, as amended.” In the “Particulars” section of the charge form, Starke stated:
I was hired by the [CRST] on June 22, 2005[,] in the position of Truck Driver. Since my employment began with the Respondent I have been subjected to sexual harassment on two occasions by my Lead Trainers. On July 7, 2005, Bob Smith, Lead Trainer[,] began to make sexual remarks to me whenever he gave me instructions. He told me that the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often. ‘You got big tits for your size, etc...[.]” I informed Bob Smith that I was not interested in a sexual relationship with him. On July 14, 2005, I contacted the dispatcher and was told that I could not get off the truck until the next day. On July 18, 2005[,] through August 3, 2005, David Goodman, Lead Trainer, forced me to have unwanted sex with him on several occasions while we were traveling in order to get a passing grade.
Upon receiving Starke’s Charge, the EEOC notified CRST of the filing and instructed CRST to respond, on or before December 30, 2005, with “a written position statement on each of the allegations of the charge, accompanied by documentary evidence and/or written statements, where appropriate.” The EEOC advised CRST to “include any additional information and explanation [it] deem[ed] relevant to the [Charge].” The EEOC sent CRST a corresponding, initial “request for information” asking that CRST “submit information and records relevant to the [charge].” The EEOC assured CRST that “[t]he following dates are considered to be the ‘relevant period’ for the attached [r]equest for [i]nformation: January 2, 2005-November 2, 2005.” The EEOC’s initial request for information primarily concerned Starke’s
On December 21, 2005, CRST submitted its “position statement” to the EEOC and furnished the EEOC with all of the information that the EEOC demanded in the request for information. In its position statement, CRST denied discriminating against or harassing Starke. The company based this denial on its own internal investigation into Starke’s claims against Lead Drivers Smith and Goodman.
D. The EEOC’s Investigation and Reasonable Cause Determination
In the months that followed, the EEOC sent multiple supplemental requests for information to CRST. Over the course of the investigation, the EEOC learned that, in addition to Starke, Essig, and Thiel, female drivers Rhonda Morgan and Pee-ples had also filed discrimination charges against CRST for alleged sexual harassment. On July 28, 2006, the EEOC submitted a third supplemental Request for Information to CRST. This third request for information asked that CRST furnish “a copy of all other [ejharges of [d]iscrimi-nation that CRST has received in the past five years from any government agency that alleges sexual harassment.” Additionally, the EEOC demanded “the name, gender, home address, and home telephone number of all employees that were trained by either [Smith] and/or [Goodman],” including “the dates of the training and documentation of any complaints made against these two trainers by any of these trainees.”
On March 22, 2007, the EEOC presented CRST with a fourth supplemental request for information seeking detailed contact information for all of its dispatchers who worked during a complaint-relevant time and for female drivers that began working after January 1, 2005.
On July 12, 2007, the EEOC presented CRST with its “Letter of Determination,” which (1) notified CRST that the EEOC had found reasonable cause to believe that CRST subjected Starke and “a class of employees” to sexual harassment on the basis of gender and (2) offered to сonciliate the claim.
E. The EEOC’s and CRST’s Conciliation
On August 6 and August 7, 2007, CRST counsel Thomas D. Wolle contacted EEOC Investigator Pamela Bloomer to confirm CRST’s desire to conciliate with the EEOC. On August 8, 2007, Bloomer left
On August 17, 2007, Wolle and Bloomer held a telephone conversation during which Bloomer told Wolle that the EEOC would require CRST to send a letter to past and present employees to help identify class members who might be part of a settlement. On August 24, 2007, Wolle telephoned Bloomer to inform her that he had spoken with Starke’s counsel and that, from that conversation, CRST had determined that conciliation appeared futile. Wolle promised to send an email confirming CRST’s position regarding the futility of conciliation. Bloomer responded that “the next step after conciliation would be [the] EEOC’s internal decision whether to litigate on behalf of [Starke] and the class or provide [Starke] with a [right-to-sue] letter.”
The parties could reach no agreement on conciliation and, on August 28, 2007, the EEOC notified CRST that the EEOC had “determined that its efforts to conciliate [the Charge] as required by [Title VII] have been unsuccessful.” The EEOC added that because “further conciliation efforts would be futile or non-productive,” it would “not make further efforts to conciliate [the Charge]” and was “forwarding the case to [its] legal unit for possible litigation.”
F. The Instant Lawsuit
On September 27, 2007, the EEOC filed the instant lawsuit seeking redress for the discrimination that Starke “and a class of similarly situated female employees of [CRST]” allegedly endured. The EEOC brought the suit in its own name, pursuant to § 706 of Title VII, 42 U.S.C. § 2000e-5, “to correct [CRST’s] unlawful employment practices on.the basis of sex, and to provide appropriate relief to [Starke] and a class of similarly situated female employees of [CRST] who were adversely affected by such practices.” The amended complaint alleged, in pertinent part, as follows:
7. ... two of [CRST’s] [L]ead [Drivers subjected Starke to sexual harassment during their supervision of Starke (including, but not limited to, unwelcome sexual conduct, other unwelcоme physical touching, propositions of sex, and sexual comments), which further created a sexually hostile and offensive work environment. CRST is liable for the harm caused by the harassment and the hostile and offensive work environment because of the actions of its [L]ead [D]rivers and because of its failure and refusal to take prompt and appropriate action to prevent, correct, and protect Starke from the harassment and the hostile work environment, culminating in her discharge from employment with CRST.
8. Other similarly situated female employees of CRST were also subjected to sexual harassment and a sexually hostile and offensive work environment while working for CRST....
9. The effect of the practices complained of in Paragraphs 7 and 8 has been to deprive Starke and a class of similarly situated female employees of equal employment opportunities, and to otherwise adversely affect their status as employees, because of sex.
The EEOC alleged that CRST perpetrated these actions intentionally and “with malice or with reckless indifference to the federally protected rights of Starke and the class of similarly situated female employees.”
In its prayer for relief, the EEOC sought (1) “a permanent injunction enjoining CRST and its officers, successors, and
From September 27, 2007, the date that the EEOC filed suit, until nearly two years thereafter, the EEOC did not identify the women comprising the putative class despite thе district court’s and CRST’s repeated requests to do so. According to the district court, “it was unclear whether the instant Section 706 lawsuit involved two, twenty or two thousand ‘allegedly aggrieved persons.’ ” EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR,
The district court, in a series of five orders, dismissed the EEOC’s claims relating to over half of these 150 women. We recite only the dismissals that the EEOC currently appeals. In all, the EEOC appeals the district court’s dismissal of its claims as to 107 women. First, on May 13, 2009, the district court granted CRST summary judgment against three women,
Finally, on August 13, 2009, the district court barred the EEOC from seeking relief for the remaining 67 women after concluding that the EEOC had failed to conduct a reasonable investigation and bona fide conciliation of these claims — statutory conditions precedent to instituting suit. EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR,
We now consider three consolidated appeals: (1) Starke’s and Peeples’s joint appeal,
II. Discussion
A. EEOC’s Investigation and Conciliation
In its first point on appeal, the EEOC urges that we reverse the district court’s decision to bar the EEOC from pursuing claims as to 67 women based on its failure to reasonably investigate or good-faith conciliate. We hold that the district court did not err in dismissing the EEOC’s claims as to 67 women for its failure to investigate and conciliate them.
Section 706 of Title VII, the provision under which the EEOC sued, authorizes the EEOC to bring suit in its own name, on behalf of a “person or persons aggrieved” by the employer’s unlawful employment practice. 42 U.S.C. § 2000е-5(f)(1); accord Gen. Tel. Co. of Nw. v. EEOC,
Rather, “[c]ooperation and voluntary compliance were selected as the preferred means for achieving” equality of employment opportunities. Voluntary compliance proved elusive, however, as more than half of the EEOC’s conciliation efforts were deemed unsuccessful. Consequently, Congress enacted the Equal Employment Opportunity Act of 1972 which amended Title VII to permit the EEOC suits. The statutory mandate that the EEOC attempt conciliation was not abandoned, however, and the Act expressly conditions the EEOC’s power of suit on its inability to “secure from the respondent a conciliation agreement acceptable to the EEOC.”
Id. (internal footnotes omitted); accord Occidental Life Ins. Co. of Cal. v. EEOC,
Thus, “[i]n the Equal Employment Opportunity Act of 1972, Congress established an integrated, multistep enforcement procedure culminating in the EEOC’s authority to bring a civil action in a federal court.” Occidental Life Ins. Co.,
As we have recognized, the EEOC’s “ ‘power of suit and administrative process [are not] unrelated activities, [but] sequential steps in a unified scheme for securing compliance with Title VIL’ ” Hickey-Mitchell Co.,
2. Adequacy of the EEOC’s Investigation and Conciliation
The district court barred the EEOC from pursuing claims as to 67 women based on its conclusion that “the EEOC did not investigate, issue a reasonable cause determination or conciliate the claims.” CRST Van Expedited, Inc., 2009
In its analysis, the district court acknowledged that “the EEOC was entitled to expand its investigation of Starke’s Charge and consider whether CRST had tolerated the sexual harassment of other female drivers.” Id. at *15. It noted that, during the course of its investigation, the EEOC did discover “the allegations of a number of other female drivers, including Essig, Morgan, Peeples and Thiel.” Id. (concluding that these female drivers’ allegations of sexual harassment grew out of the EEOC’s investigation of Starke’s Charge). The court also recognized that it could “not second-guess the EEOC’s finding in the Letter of Determination that,” inter alia, reasonable cause existed “‘to believe that [CRST] ha[d] subjected a class of employees and prospective employees to sexual harassment, in violation of Title VIL”’ Id.
Nevertheless, the court determined that, based on the factual record in this case, “the EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint— let alone issue a reasonable cause determination as to those allegations or conciliate them.” Id. at *16. The district court concluded that the EEOC “wholly abandoned its statutory duties as to the remaining 67 allegedly aggrieved persons for whom the EEOC ... intend[ed] to seek relief at trial.” Id. The court based its conclusion upon the following, undisputed facts:
• The EEOC did not investigate the specific allegations of any of the 67 allegedly aggrieved persons until after the Complaint was filed. For example, the EEOC did not interview any witnesses or subpoena any documents to determine whether any of their allegations were true.
• The EEOC did not identify any of the 67 allegedly aggrieved persons as members of the Letter of Determination’s “class” until after it filed the Complaint. Indeed, prior to filing the Complaint, CRST enquired as to the size of the “class[,]” and the EEOC responded that it did not know.
• The EEOC did not make a reasonable[-]cause determination as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing the Complaint. Indeed, at the time the EEOC issued the Letter of Determination on July 12, 2007, 27 of the remaining 67 allegedly aggrieved persons had not yet been sexually harassed. Indeed, most of these 27 women allege they were sexually harassed after the instant lawsuit was filed. Although 38 of the remaining 40 allegedly aggrieved persons allege [that] they were sexually harassed before the EEOC issued the Letter of Determination on July 12, 2007, the EEOC admits that it was not even aware of their allegations until after the filing of the Complaint. TheEEOC used discovery in the instant lawsuit to find them.
• The EEOC did not attempt to conciliate the specific allegations of the 67 allegedly aggrieved persons prior to filing the Complaint.
Id. (internal footnote omitted).
The EEOC’s suit alleging multiple acts of discrimination by CRST arose out of Starke’s single initiating charge. Relevant precedents permit such an expansion by the EEOC, so long as the EEOC satisfies all of its pre-suit obligations for each additional claim. The Supreme Court has observed that when the EEOC brings suits under § 706 on behalf of a group of aggrieved persons, the EEOC is “master of its own case.” EEOC v. Waffle House, Inc.,
Although “the EEOC enjoys wide latitude in investigating and fifing lawsuits related to charges of discrimination, Title VII limits that latitude to some degree by ‘placing] a strong emphasis on administrative, rather than judicial, resolution of disputes.’ ” U.S. Equal Opportunity Comm’n v. Dillard’s Inc., No. 08-CV-1780-IEG (PCL),
[t]he permissible scope of an EEOC lawsuit is not confined to the specific allegations in the charge; rather, it may extend to any discrimination like or related to the substance of the allegations in the charge and which reasonably can be expected to grow out of the investigation triggered by the charge. The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during a reasonable investigation of the charge, so long as the additional allegations of discrimination are included in the reasonable cause determination and subject to a conciliation proceeding.
EEOC v. Delight Wholesale Co.,
In summary, while we recognize that “[t]he EEOC enjoys significant latitude to investigate claims of discrimination, and to allege claims in federal court based on the results of its investigations,” we find “a clear and important distinction between ‘facts gathered during the scope of an investigation and facts gathered during the discovery phase of an already-filed lawsuit.’ ” Id. at *7 (quoting Jillian’s,
Here, after Bloomer discovered during the course of her investigation that Essig, Morgan, Peeples, and Thiel “had filed formal charges of discrimination against CRST for alleged sexual harassment,” the EEOC requested that “CRST provide ‘a copy of all other [c]harges of [discrimination that [CRST] has received in the past five years from any government agency that alleges sexual harassment.’ ” CRST Van Expedited, Inc.,
The EEOC’s aforementioned conduct demonstrates that it did not reasonably investigate the class allegations of sexual harassment “during a reasonable investigation of the charge.” Delight Wholesale Co.,
at the time the EEOC issued the Letter of Determination on July 12, 2007, 27 of the remaining 67 allegedly aggrieved persons had not yet been sexually harassed. Indeed, most of these 27 women allege they were sexually harassed after the instant lawsuit was filed. Although 38 of the remaining 40 allegedly aggrieved persons allege they were sexually harassed before the EEOC issued the Letter of Determination on July 12, 2007, the EEOC admits that it was not even aware of their allegations until after the filing of the Complaint.
Id.
Absent an investigation and reasonable cause determination apprising the employer of the charges lodged against it, the employer has no meaningful opportunity to conciliate. See EEOC v. Gen. Elec. Co.,
B. Judicial Estoppel
1. Judicial Estoppel as Applied to Starke, Payne, and Timmons
The district court also granted summary judgment on the individual claims of Starke, Payne, and Timmons, and also on the EEOC’s claims on their behalf. CRST Van Expedited, Inc.,
In October 2005, Starke and her husband filed, in the federal bankruptcy court for the Northern District of Texas, a voluntary petition as joint debtors praying for protection under Chapter 7 of the Bankruptcy Code. They did not include a claim for sexual harassment among their contingent assets in their petition, nor did they amend their petition at anytime between December 2005, when Intervener Starke initially filed her administrative charge of discrimination with the EEOC, or March 2006, when the bankruptcy court fully discharged their debts. In December 2008, three months after intervening in the instant lawsuit and over one year after the EEOC filed it, Starke moved to reopen her and her husband’s joint bankruptcy to add the claim as a potential asset.
Similarly, in October 2005, Payne filed, in federal bankruptcy court for the Southern District of Ohio, a voluntary petition under the name of “Christina Sprinkle” for protection undеr Chapter 13 of the Bankruptcy Code. Payne omitted from her list
In March 2008, Timmons and her husband filed, in federal bankruptcy court for the Western District of Missouri, a voluntary petition as joint debtors seeking protection under Chapter 7 of the Bankruptcy Code. Timmons did not disclose any potential cause of action against CRST and, in June 2008, she and her husband received a full discharge.
We review for abuse of discretion a district court’s invocation of judicial es-toppel. Triple H Debris Removal, Inc. v. Companion Prop. & Cas. Ins. Co.,
As an initial matter, we need not address Starke’s contention that the district court abused its discretion in judicially es-topping her from prosecuting her intervener claims against CRST. Starke alleges in her brief that the district court failed to consider certain mitigating factors counseling against judicial estoppel’s application. Specifically, Starke maintains that she inadvertently failed to include her intervener claim in her bankruptcy petition. She claims that the language barrier created by her German birth and consequent lack of fluency in English limited her ability to assist her bankruptcy counsel. Starke also notes that, “as soon as [she] learned that her claim against CRST should have been disclosed, [she] took immediate steps to have the bankruptcy rеopened and her filings amended to contain the claim against CRST.” However, Starke’s counsel conceded at oral argument that Starke lacked standing to assert her Title VII claim.
As the Supreme Court has explained, the doctrine of judicial estoppel “ ‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’ ” New Hampshire v. Maine,
“First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”
Id. (quoting New Hampshire,
Taking each factor in turn, we conclude that the district court did not abuse its discretion by judicially estopping Payne and Timmons from pursuing their respective claims insofar as they may seek to subsequently intervene in the EEOC’s action or otherwise seek relief individually. Notably, with respect to the first factor concerning a clear inconsistency between former and subsequent positions, we have observed that, “[i]n the bankruptcy context, a party may be judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.” Id. Estoppel may apply because “a debtor’s failure to list a claim in the mandatory bankruptcy filings is tantamount to a representation that no such claim existed.” Id. (quotations and citation omitted). As recounted above, none of the women disclosed their involvement or potential involvement in this action.
“The second New Hampshire factor requires that the bankruptcy court have adopted the debtor’s position.” Id. at 1048. This factor might be satisfied “where the bankruptcy court issues a ‘no asset’ discharge,” thereby evidencing that “the bankruptcy court has effectively adopted the debtor’s position.” Id. Again, as already noted, Payne, and Timmons each procured a full discharge without disclosing her potential claim against CRST. In contrast, in Stallings, we found “no judicial acceptance of Stallings’s inconsistent position” because “the bankruptcy
a debtor who files h[er] bankruptcy petition, subsequently receives a right-to-sue letter from the EEOC, and then fails to amend h[er] bankruptcy petition to add h[er] lawsuit against h[er] employer as a potential asset is estopped from bringing the lawsuit becausе the debtor “knew about the undisclosed claims and had a motive to conceal them from the bankruptcy court.” DeLeon v. Comcar Indus., Inc.,321 F.3d 1289 , 1291 (11th Cir.2003).
Id.
“Under the final New Hampshire factor, the debtor’s non-disclosure of the claim must not be inadvertent and must result in the debtor gaining an unfair advantage.” Id. We have stressed that, pursuant to this third factor, a district court should not judicially estop a debtor whose prior inconsistent position was attributable to “a good-faith mistake rather than as part of a scheme to mislead the court.” Id. (quotations and citation omitted); accord New Hampshire,
Finally, as the district court noted, “[t]he actions of ... Ms. Timmons are especially galling” because she “used the bankruptcy process to discharge or reduce debts owed to CRST and now seek[s] to recover funds from CRST free and clear of the bankruptcy process.” CRST Van Expedited, Inc.,
Accordingly, based on this record, we cannot conclude that the district court abused its discretion in judicially estopping Payne or Timmons from individually pursuing their respective claims against CRST for sexual harassment.
2. Judicial Estoppel as Applied to EEOC
The district court also invoked judicial estoppel to bar the EEOC from seeking any remedy on Starke’s, Payne’s, and Tim-mons’s behalf. Specifically, the district court asserted that “[t]he judicial estoppel doctrine applies part-and-parcel to the EEOC, notwithstanding the fact that it is the ‘master of its own case’ and does not merely stand in the shoes of the allegedly
On appeal, the EEOC argues that the district court abused its discretion in applying judicial estoppel to the EEOC because the EEOC did not assert an inconsistent position in a prior proceeding. Rather, the EEOC maintains, the past representations of Intervener Starke, Payne, and Timmons, do not bind the EEOC because, in its present posture as a plaintiff suing in its own name under § 706, “[the] EEOC does not merely stand in their shoes, and [the] EEOC’s litigation does not exist simply to seek relief on their behalf.” (Citing Waffle House,
In response, CRST concedes that “[n]o federal appellate court has yet ruled on this issue” of whether a court can judicially estop the EEOC from bringing suit in its own name to remedy allegedly unlawful employment practices because those practices were perpetrated against an employee who herself is judicially estopped. CRST urges, nevertheless, that the district court did not abuse its discretion in judicially estopping the EEOC. Noting that judicial estoppel’s chief purpose “is to protect the integrity of the judicial process,” CRST avers that, “[w]hile the individual claimants in an EEOC enforcement action may not technically be parties to the case, their prior inconsistent representations to another court pose no less of a threat to the integrity of the judicial process.”
Upon review, we concur with the EEOC that the district court abused its discretion in judicially estopping the EEOC from suing in its own name to correct any discriminatory employment practices that CRST allegedly perpetrated against the three women. The district court’s and CRST’s contrary position is inconsistent with the realities of the EEOC’s role as a plaintiff in its own name under § 706 and with the basic principles of the judicial estoppel doctrine.
As the Supreme Court has emphasized, “[g]iven the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its name for the purpose, among others, of securing relief for a group of aggrieved individuals.” Gen. Tel. Co.,
If it were true that the EEOC could prosecute its claim only with [the employee]^ consent, or if its prayer for relief could be dictated by [the employee], the court’s analysis might be persuasive. But once a charge is filed, the exact opposite is true under the statute — the EEOC is in command of the process-If ... the EEOC files suit on its own, the employee has no independent cause of action, although the employee may intervene in the EEOC’s suit.... The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.
Id. at 291,
Under Waffle House a court cannot judicially estop the EEOC from bringing suit in its own name to remedy employment discrimination simply because the defendant-employer happened to discriminate against an employee who, herself, was properly judicially estopped. Indeed, under Title VII, “whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief.” Id. at 296,
Accordingly, the district court abused its discretion in judicially estopping the EEOC from suing in its own name under § 706 to remedy sexual harassment that CRST allegedly perpetrated against Starke, Payne, and Timmons, and we reverse the district court’s grant of summary judgment on that ground accordingly.
C. Merits of EEOC’s Hostile Work-Environment Claims
1. Governing Legal Standard
The EEOC also appeals several of the district court’s dispositive rulings concerning the merits of its hostile work-
As we have explained,
[hjostile work environments created by supervisors or сoworkers have the following elements in common: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and the plaintiffs protected group status; and (4) the harassment affected a term, condition, or privilege of employment. Al-Zubaidy v. TEK Indus., Inc.,406 F.3d 1030 , 1038 (8th Cir.2005). In addition, for claims of harassment by non-supervisory personnel, [the plaintiff] must show that [her] employer knew or should have known of the harassment and failed to take proper action.
Gordon v. Shafer Contracting Co.,
On the other hand, if the harassment was committed by an employee who supervised [the plaintiff], [CRST] as her employer is vicariously liable for the harassment unless it can establish the affirmative defense defined in Burlington Indus., Inc. v. Ellerth,524 U.S. 742 , 765,118 S.Ct. 2257 ,141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton,524 U.S. 775 , 807-08,118 S.Ct. 2275 ,141 L.Ed.2d 662 (1998) [ (hereinafter, the “Ellerth-Faragher Defense”) ].
Joens v. John Morrell & Co.,
Thus, we must determine, as a threshold matter, whether CRST’s Lead Drivers served as supervisors for CRST’s trainees or were merely the trainees’ coworkers. See Alvarez,
Applying our precedent, we agree with the district court that CRST’s Lead Driver is not a supervisory employee. Therefore, CRST is not vicariously liable for any harassment that its Lead Drivers allegedly perpetrated against female trainees. “[T]o be considered a supervisor, ‘the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties.’ ” Weyers v. Lear Operations Corp.,
First, our circuit has held that “[t]he fact that an alleged harasser may have been a ‘team leader’ with the authority to assign employees to particular tasks will not be enough to make that person a supervisor.” Merritt v. Albemarle Corp.,
Second, CRST’s reliance, in part, on a Lead Driver’s evaluation of a trainee’s performance to decide whether to promote that trainee to full-driver status is insufficient to render a Lead Driver a supervisоr. Although the Supreme Court declined, in Ellerth and Faragher, to “answer the question, ‘who is a supervisor?,’ ” Joens,
Finally, we reject the EEOC’s suggestion that, “[a]t a minimum, the authority CRST vests in its trainers creates a basis for liability under the apparent authority doctrine.” This court has consistently affirmed that a harassing coworker’s “apparent authority would be an insufficient basis to support a finding of supervisor status.” Weyers,
Thus, we concur with the district court that CRST’s Lead Drivers were their trainees’ coworkers, not their supervisors. Consequently, CRST cannot be vicariously liable for any sexual harassment in which its Lead Drivers engaged, and the Ellerthr-Faragher Defense is inapplicable to the instant case. See Alvarez,
In order to withstand summary judgment on its hostile work-environment claims against CRST, the EEOC must create genuine issues of material fact as to the following elements regarding each allegedly aggrieved female trucker:
“(1) [that she belongs to] a protected group; (2) [that she suffered] unwelcome harassment; (3) [that there was] a causal nexus between the harassment and her membership in the protected group; (4) that the harassment affected a term, condition, or privilege of [her] employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt and effective remedial action.”
Sheriff v. Midwest Health Partners, P.C.,
2. The Severity or Pervasiveness of Certain Harassment
The district court granted CRST summary judgment on the EEOC’s hostile
A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “We review de novo the district court’s grant of summary judgment, viewing the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Mayer v. Countrywide Home Loans,
On each female trucker’s behalf, the EEOC must create a genuine issue of material fact concerning whether “the harassment affected a term, condition, or privilege of [her] employment.” Carter,
“A number of factors are relevant in assessing the magnitude of harassment, including the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating or only an offensive utterance, [and] whether it unreasonably interferes with the employee’s work performance.... ” Carter,
Applying these standards we conclude that, except as to two women — Sherry O’Donnell and Tillie Jones — the district court did not err in granting CRST summary judgment after determining that the women complained of harassment that was neither sufficiently severe nor pervasive. The record reveals complaints about their Lead Drivers’ poor personal hygiene,
The EEOC did, however, establish material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive. O’Donnell testified in her deposition that, among others, co-driver Anthony Sears subjected her to persistent sexual harassment during the seven days that she spent with him over the road. Specifically, O’Donnell testified that, over the course of that seven-day trip, Sears (1) asked her, on “three to five” occasions, to drive naked; (2) refused O’Donnell’s repeated requests to exit at a
The district court erred in concluding, as a matter of law, that Tillie Jones suffered harassment that was neither sufficiently severe nor pervasive. Jones testified that, on three or four occasions over the course of a two-week training trip, her Lead Driver, James Simmons, entered the cab wearing only his underwear and rubbed the back of her head, despite repeated requests by Jones that he stop. Jones also testified that, “everyday,” Simmons entered the cab in his underwear while she was driving. Additionally, according to Jones, Simmons called her “his bitch” five or six times, including on one occasion when, in response to Jones’s complaints about his slovenly habits, he ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.” Finally, Jones testified that, like many of CRST’s Lead Drivers, Simmons routinely urinated in plastic bottles and ziplock bаgs while in transit. However, Jones testified that Simmons would leave his urine receptacles about the truck’s cab and that when Jones implored Simmons to gather them, Simmons ordered her to “shut up and clean it up.” No overt physical threat or contact was present, but the evidence suffices to create a genuine issue of material fact concerning the severity or pervasiveness of the harassment which the EEOC alleges that Jones suffered.
In sum, we affirm the district court’s summary judgment, in CRST’s favor, on the EEOC’s hostile work-environment claims on behalf of 12 women,
3. CRST’s Notice and/or Remedying of the Alleged Harassment
The EEOC also appeals the district court’s grant of summary judgment on its claims as to 34 women
We have already affirmed the district court’s grant of summary judgment affecting nine
As to the remaining 25 women,
Regarding the remaining 21 women, because the women’s Lead Drivers and co-drivers were their coworkers rather than their supervisors, see supra Part II.C.l., the EEOC must, as part of its burden on summary judgment, create a genuine issue of material fact as to whether CRST “[ (1) ] knew or should have known of the harassment and [ (2) ] failed to take prompt and effective remedial action.” Carter,
With respect to CRST’s knowledge, we have stated that either an employer’s actual or constructive notice of ongoing coworker-on-coworker harassment may subject the employer to direct liability for that harassment unless the employer takes prompt corrective action. Sandoval v. Am. Bldg. Maint. Indus., Inc.,
Furthermore, on the present record, we must also conclude, as a matter of law, that CRST lacked constructive knowledge of any harassment that the ten women allegedly sufferеd. The EEOC’s argument to the contrary is linked to its separate contention that the district court abused its discretion in excluding documentary evidence pertaining to the 99 women for whom the district court precluded the EEOC from seeking relief. Specifically, as a discovery sanction for the EEOC’s failure to present these 99 women to CRST for deposition, the district court — as it had forewarned in a prior order — precluded each woman from testifying at trial and barred the EEOC from seeking relief on her behalf in the instant case. However, in opposing CRST’s motion for summary judgment concerning the company’s constructive notice of harassment, the EEOC included records of these 99 women’s harassment complaints to CRST, their Qualcomm messages, and other documentary evidence. CRST moved to strike this evidence from the summary-judgment record, citing the district court’s discovery sanction. The district court subsequently granted the motion, concurring with CRST that permitting the EEOC to introduce evidence of the 99 women’s complaints would amount to an “end-run” around its discovery sanction precluding the EEOC’s relief on their behalf. CRST Van Expedited, Inc.,
Although we review the district court’s grant of summary judgment de novo, Mayer,
Consequently, in granting summary judgment based on its conclusion that, as a matter of law, CRST lacked constructive notice as to the ten women presently at issue, the district court did not premise its ruling on an incomplete summary-judgment record. Moreover, our de novo review of this record reveals no fact issue as to CRST’s constructive notice. Specifically, the EEOC has failed to adduce sufficient evidence to create a fact issue as to whether “the harassment was so broad in scope, and so permeated the workplace, that it must have come to the attention of someone authorized to do something about it.” Id. at 802 (quotations and citation omitted).
With respect to the remaining 11 women,
The record reflects that CRST addressed reported harassment by (1) removing the woman from the truck as soon as practicable, arranging overnight lodging at a motel and subsequent transportation to a CRST terminal at the company’s expense; (2) requesting a written statement from the woman; (3) relieving the woman from future assignments with the alleged harasser; and (4) reprimanding the alleged harasser and barring him from team-driving with women indefinitely. These actions, not necessarily in combination, constitute the type of prompt and effective remedial action that our precedents prescribe. When considering the “[remedial] options available to the employer,” we have included “employee training sessions, transferring the harassers, written warnings, reprimands in personnel files, or termination,” as acceptable options, depending on the particulars of the case. Carter,
Accordingly, we affirm the district court’s summary judgment as to the remaining 11 women, concurring in its conclusion that, as a matter of law, CRST promptly and effectively remedied any allegеd harassment that the women reported.
D. Intervener Peeples’s Claims
Peeples appeals the district court’s grant of summary judgment to CRST on her hostile work-environment and retaliation claims under Title VII, as well as her state-law claim under the Iowa Civil Rights Act (ICRA). “Consistent with our precedent, the district court concluded that the [ICRA] is interpreted in the same way as Title VII.” Alvarez,
We also conclude that the district court did not err in granting summary judgment on Peeples’s Title VII and ICRA retaliation claims. “This court analyzes ICRA retaliation claims under the same method as federal retaliation claims.” Young-Losee v. Graphic Packaging Int’l, Inc.,
Peeples failed to establish a fact issue that CRST’s proffered reason for her termination was pretextual. CRST asserts that it discharged Peeples because newly diagnosed cervical cancer prevented her from working. The undisputed record reflects that she was unable to operate her truck under CRST’s demanding team-driving regimen because of her frequent cervical bleeding and subsequent chemotherapy and radiation treatments. As support for her claim that CRST’s reason was pretextual, she relies on a comment by Robin Knight, the replacement Lead Driver, that referred to Peeples as “his problem child.” Additionally, Peeples relies on the temporal proximity of her discharge to her complaint, noting that CRST terminated her approximately one month after her complaint. This evidence supports mere speculation not a reasonable conclusion of pretext. With respect to the temporal proximity, we note that within a few days of Peeples leaving her harasser’s truck, CRST granted her request for a female Lead Driver and immediately put her back out on the road. It is undisputed that on September 20, 2005, a Texas doctor issued a second opinion that her proper diagnosis was cervical cancer.
On these facts, the district court properly concluded that a reasonable jury could not conclude that CRST’s proffered reason for terminating Peeples’s employment was pretextual. Accordingly, we affirm the district court’s grant of summary judgment on her Title VII and ICRA retaliation claims.
E. Attorneys’ Fees
Finally, the EEOC contends on appeal that the district court abused its discretion by awarding CRST $4,467,442.90 in attorneys’ fees and expenses, pursuant to 42 U.S.C. § 2000e-5(k) and 28 U.S.C. § 1920. “A prevailing defendant in a discrimination suit under Title VII of the Civil Rights Act of 1964 may recover attorneys’ fees if the plaintiffs case was frivolous, unreasonable, or without foundation.” EEOC v. Kenneth Balk & Assocs., Inc.,
III. Conclusion
Based on the foregoing, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. Specifically, we reverse the district court’s grant of summary judgment on the EEOC’s claims as to Monika Starke because the EEOC, suing as a plaintiff in its own name under § 706, may not be judicially estopped because of Starke’s independent conduct.
Notes
. In April 2007, CRST added “ReportLine,” an independently administered, toll-free hotline that employees may call to report, openly or anonymously, any illegal or improper conduct; ReportLine forwards all personnel-related complaints to H.R. for further review. Because the majority of the alleged harassment predates ReportLine's inception, it is of limited relevance.
. Specifically, CRST contended that it interviewed eyewitnesses and the alleged wrongdoers themselves about the matter. With respect to Smith, CRST interviewed Frank Taylor, an eyewitness to some of the alleged harassment, who confirmed that Smith made inappropriate remarks to Starke. Taylor stated that he admonished Starke to abstain from driving with Smith on her training trip if she felt uncomfortable, but that Starke continued driving with Smith anyway. For his part, Smith admitted to uttering inappropriate comments, but he maintained that "nothing physical” transpired between Starke and himself. Regarding Goodman, H.R. discovered that, on August 3, 2005, Starke reported on her evaluation form that Goodman had treated her "very well.” When CRST confronted Goodman about Starke’s allegations, Goodman acknowledged having a sexual relationship with Starke but averred that it was consensual. Goodman’s co-driver, Timothy Walker, corroborated Goodman’s account that the relationship was consensual, asserting that he overheard four "love messages” that Starke had left on Goodman’s voicemail.
. The district court supported this conclusion with the following chronology of discovery in the case:
On May 29, 2008, for example, the EEOC sent 2,000 letters to former CRST female employees to solicit their participation in this lawsuit. On September 28, 2008, the EEOC sent another 730 solicitation letters to former CRST female employees. There was a clear and present danger that this case would drag on for years as the EEOC conducted wide-ranging discovery and continued to identify allegedly aggrieved persons. The EEOC’s litigation strategy was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial.
On August 8, 2008, CRST asked the court to establish a date “by which the EEOC completes its identification of class members.” Response (docket no. 38), at 4. The EEOC responded that it had identified "a total of 49 class members so far,” predicted the “total class will reach between 100 and 150 individuals,” indicated it believed it could identify “the bulk of the class members” by October 15, 2008, and suggested a December 7, 2008 deadline for identifying the “class members.” Reply (docket no. 42), at 1-3.
On August 20, 2008, the court set a[n] October 15, 2008 deadline for the EEOC “to disclose the identities] of class members.” The court also continued the parties' previously agreed-upon discovery deadline to January 15, 2009.
By October 15, 2008, the EEOC identified approximately 270 allegedly aggrieved persons to CRST. The number of "class members” greatly increased in the ten days immediately preceding the deadline. Prior to October 7, 2008, the EEOC had identified only seventy-nine "class members” to CRST. On October 7, 2008, the EEOC identified 40 new "class members” and advised CRST that the " [(Investigation is continuing.” Seventh Supplement to Initial Disclosures (docket no. 243-5), at 1. On October 15, 2008, the EEOC identified 119 more "class members” and again advised CRST that the "[(Investigation is continuing." Eighth Supplement to Initial Disclosures (docket no. 243-6) at 1; Ninth Supplement to Initial Disclosures (docket no. 243-7), at 1; Tenth Supplement to Initial Disclosures (docket no. 243-8), at 1. Also on October 15, 2008, the EEOC partially identified 66 additional persons and stated [that] “the EEOC expects [that] all [of] these individuals are class members....” Eleventh Supplement to Initial Disclosures (docket no. 243-9), at 1. Again, the EEOC stated that the “[(Investigation is continuing.” Id. atl.
The total number of allegedly aggrieved persons identified or partially identified by the EEOC by October 15, 2008[,] was much greater than CRST had anticipated basedupon the EEOC’s prior representations to the court. See, e.g., Response (docket no. 42), at 1-2 (EEOC estimates “the total class will reach between 100 and 150 individuals”); Scheduling Order at 2 (EEOC estimates a twenty-day trial). Therefore, on November 6, 2008, CRST filed a "Motion under Rule 16(f) for an Order to Show Cause Concerning the EEOC’s Identification of Class Members.” Motion to Show Cause (docket no. 56). CRST alleged that the EEOC did not have a good-faith basis for naming so many allegedly aggrieved persons; CRST accused the EEOC of adopting a policy of "naming everyone and asking questions later” just before the October 15, 2008 deadline. Brief in Support of Motion to Show Cause (docket no. 56-2), at 10. CRST alleged that the EEOC had simply added a large number of names found in CRST’s human resources files without ever speaking to those individuals. Further, the EEOC had indicated to CRST that it reserved unto itself the option in the future "to remove some women from this list at a later date.” Id. at 11.
... The court took the EEOC at its word that it had a good-faith belief that each and every one of the approximately 270 women it had disclosed to CRST before the deadline had an actionable claim for sex discrimination.... The court expressed concern, however, that "CRST [still] might unfairly face a 'moving target' of prospective plaintiffs as discovery winds down and trial approaches.” Order (docket no. 66), at 8.
Id. at *9-10 (footnote omitted and alterations added, in part).
. Starke, Christina Payne, and Robin Tim-mons.
. Bonnie Batyik, Bethany Broeker, Kim Chisholm, Samantha Cunningham, Denise Deso-nier, Maybi Fernandez-Fabre, Ginger Lauder-milk, Verona Mclver, Faith Shadden, Rachel Tucker, and Diana Vance.
. Pamela Barlow, Peggy Blake, Donna Diсkson, Nicole Edwards, Zelestine Grant, Martha Griffin, Carole Pettit, and Rhonda Wellman.
. Victoria Holmes, January Jackson, and Til-lie Jones.
. Antoinette Baldwin, Mary Beaton, Catherine Coronado, Dorothy Dockery, Catherine (Granofsky)-Fletcher, Debra Hindes, Tracy Hughes, January Jackson, Patricia Marzett, Virginia Mason, Lucinda McBlair, Bonnie Moesch, Sherry O'Donnell, Christina Payne, Tammi Pile, Sharon Pinchem, Peggy Pratt, Danette Quintanilla, Kathleen Seymour, Jonne Shepler, Linda Skaggs, Mary "Emily” Smith, Jennifer Susson, Robin Timmons, and Betsy Ybarra.
. Appeal No. 09-3764.
. Appeal No. 09-3765.
. Appeal No. 10-1682.
. In Jillian’s, the district court explained that
[i]t was only after conducting discovery with respect to its original complaint that the EEOC decided to expand its lawsuit to include a nationwide class. The Seventh Circuit approached this issue in Walner, where it impliedly distinguished between facts gathered during the scope of an investigation and facts gathered during the discovery phase of an already-filed lawsuit. “We wholeheartedly agree with EEOC's point that it may obtain relief for instances of discrimination that it discovers during an investigation of a timely charge.... However, these investigations may not be accomplished through a process of discovery that follows a complaint based upon an insufficient charge of discrimination.” Id. at 971-972 (emphasis added). We conclude that the same standard must be applied to the relationship between the lawsuit and its underlying investigation as is applied to the relationship between the lawsuit and its underlying charge.
Id. at 981-82.
. "Notably, the EEOC did not allege that CRST was engaged in 'a pattern or practice’ of illegal sex-based discrimination or otherwise plead a violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6." CRST Van Expedited, Inc.,
. At oral argument, the court inquired as to whether, "in light of the bankruptcy prоceeding” and United States ex rel. Gebert v. Transport Administrative Services,
It sounds to me like, in all honesty, she probably never should have been in the district court. There probably never should have been merits of determination against her. There was not only no jurisdiction here, there was no jurisdiction there. Looking at it now, I think we did the best we could. There shouldn’t have been merits of determination. It should have been a dismissal without prejudice in the district court. In all honesty, there is no standing, no jurisdiction ever. That is how I see that. Thank you.
(Emphasis added.)
. Although Waffle House is technically an ADA case, the Court observed at the outset of its opinion that "Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII ... when it is enforcing the ADA’s prohibitions against employment discrimination on the basis of disability.”
. Although the district court abused its discretion in judicially estopping the EEOC from suing in its own name under § 706 to remedy sexual harassment that CRST allegedly perpetrated against, inter alia, Payne and Timmons, we nevertheless affirm (1) the district court's grant of summary judgment, in CRST’s favor, on the EEOC's hostile work-environment claim on Payne's behalf, see infra Part H.C.2., and (2) the district court’s grant of summary judgment, in CRST’s favor, based on its conclusion that, as a matter of law, CRST promptly and effectively remedied the sexual harassment once it became aware of it, as to Timmons, see infra Part II.C.3.
. Victoria Holmes, January Jackson, and Til-lie Jones.
. Dorothy Dockery, Debra Hindes, Tracy Hughes, Patricia Marzett, Virginia Mason, Lucinda McBlair, Sherry O’Donnell, Christina Payne, Peggy Pratt, Jonne Shepler, and Linda Skaggs.
. The district court alternatively concluded, as a matter of law, that nine of these 11 additional women — all except Payne and Skaggs — either (a) failed to timely and properly notify CRST of the harassment that they suffered, thereby depriving CRST of the opportunity to remedy it, or (b) did timely and properly notify CRST of the harassment, but the company promptly and effectively remedied it.
. By way of example, several women complained that, to minimize stops while in transit, their male Lead Drivers habitually urinated in plastic bottles with no regard for their female trainee, who often heard or even smelled thе foul activity.
. Still, as we explain in Part II.C.3 infra, the district court did not err in granting summary judgment on the EEOC’s claim on O’Donnell's behalf because CRST took prompt and effective remedial action when O'Donnell complained about Sears's conduct.
. Dorothy Dockery, Debra Hindes, Victoria Holmes, Tracy Hughes, January Jackson, Patricia Marzett, Virginia Mason, Lucinda McBlair, Christina Payne, Peggy Pratt, Jonne Shepler, and Linda Skaggs.
. Antoinette Baldwin, Bonnie Batyik, Mary Beaton, Bethany Broeker, Kim Chisholm, Catherine Coronado, Samantha Cunningham, Denise Desonier, Dorothy Dockery, Maybi Fernandez-Fabre, Catherine (Granofsky)-Fletcher, Debra Hindes, Tracy Hughes, January Jackson, Ginger Laudermilk, Patricia Marzett, Virginia Mason, Lucinda McBlair, Verona Mclver, Bonnie Moesch, Sherry O'Donnell, Tammi Pile, Sharon Pinchem, Peggy Pratt, Danette Quintanilla, Kathleen Seymour, Faith Shadden, Jonne Shepler, Mary "Emily” Smith, Jennifer Susson, Robin Timmons, Rachel Tucker, Diana Vance, and Betsy Ybarra.
. Dorothy Dockery, Debra Hindes, Tracy Hughes, January Jackson, Patricia Marzett, Virginia Mason, Lucinda McBlair, Peggy Pratt, and Jonne Shepler.
. Antoinette Baldwin, Bonnie Batyik, Mary Beaton, Bethany Broeker, Kim Chisholm, Catherine Coronado, Samantha Cunningham, Denise Desonier, Maybi Fernandez-Fabre, Catherine (Granofsky)-Fletcher, Ginger Lau-dermilk, Verona Mclver, Bonnie Moesch, Sherry O'Donnell, Tammi Pile, Sharon Pin-chem, Danette Quintanilla, Kathleen Seymour, Faith Shadden, Mary "Emily” Smith, Jennifer Susson, Robin Timmons, Rachel Tucker, Diana Vance, and Betsy Ybarra.
. In her deposition, Batyik admitted that she did not even begin working at CRST until January 24, 2008, and alleges that Lead Driver David Buckner sexually harassed her for
. Antoinette Baldwin, Kim Chisholm, Catherine Coronado, Maybi Fernandez-Fabre, Catherine (Granofsky)-Fletcher, Bonnie Moesch, Tammi Pile, Sharоn Pinchem, Rachel Tucker, and Betsy Ybarra.
. In fact, the only woman before us whose record demonstrates such a credible threat is Bonnie Batyik, who testified in her deposition that her harasser, Lead Driver Phillip Buckner, threatened that "if [she] told Bill, the dispatch, or anyone, basically, that [the harassment] would go to another level and that it wouldn’t be good for [her] so [she] should keep [her] mouth shut.” This is the type of "credible threat” that we recognize as excusing an employee’s failure to promptly report harassment by a coworker. Nevertheless, as already noted, summary judgment on the EEOC’s claims concerning Batyik is appropriate because the EEOC failed to investigate and conciliate them as Title VII requires. See supra Part II.C.3.
. Mary Beaton, Samantha Cunningham, Denise Desonier, Ginger Laudermilk, Sherry O'Donnell, Danette Quintanilla, Kathleen M. Seymour, Faith Shadden, Mary Smith, Jennifer Susson, and Robin Timmons.
. See supra n. 16 regarding our ultimate affirmance of the district court's grant of summary judgment to CRST as to Payne’s and Timmons’s claims.
Concurrence Opinion
concurring in part and dissenting in part.
I respectfully dissent from the majority’s conclusion that the EEOC failed to fulfill its litigation prerequisites in this case and the resulting dismissal of trial worthy sexual harassment claims. The majority imposes a new requirement that the EEOC must complete its presuit duties for each individual alleged victim of discrimination when pursuing a class claim. This rule places unprecedented obligations on the EEOC and in effect rewards CRST for withholding information from the Commission. In addition I dissent from the holding that CRST’s lead drivers are not supervisors of the women trainees assigned to their long haul trips. In other respects I join in the majority opinion.
The EEOC was drawn into this case by Monika Starke’s charge that she was sexually harassed while employed by CRST. The Commission then asked CRST “whether any other individual has complained” about sexual harassment at the company. Although many women had reported harassment by trainers or codrivers during long haul trips, CRST furnished to the Commission only two names. The EEOC eventually discovered that several hundred women employees claimed severe sexual harassment by CRST male trainers or driving partners during extended over the road trips. Their allegations against the truck drivers included claims of sexual propositioning, sexual assault, and rape. As the EEOC’s investigation continued, it learned that CRST had originally taken minimal action in response to the women’s reports of harassment.
During the course of the Title VII preli-tigation process, the EEOC put CRST on notice that it was investigating a class of women employees and requested the company’s help in identifying class members. See 29 C.F.R. § 1601.15 (explaining EEOC’s investigative authority). The
Neither Title VII nor our prior cases require that the EEOC conduct its presuit obligations for each complainant individually when litigating a class claim. Rather, we have required that the EEOC perform these duties for each type of Title VII violation alleged by the complainant. EEOC v. Delight Wholesale Co.,
The cases relied on by the majority are not to the contrary. They require only that the EEOC give the employer notice during the administrative process of the nature and scope of the claim, not of the names of each potential class member. For example, in EEOC v. Jillian’s of Indianapolis, Inc., the court allowed the EEOC to proceed on behalf of a local class even though it had not named each individual in the reasonable cause determination or conciliated individual class members because the employer had notice that the EEOC was investigating a local class.
The majority’s new requirement that the EEOC separately investigate and conciliate each alleged victim of discrimination is inconsistent with the purpose of Title VII. Under this standard employers can avoid disclosure to the EEOC of complaining workers while the Commission is conducting its investigation and conciliation, then reveal the names during court ordered dis
While the majority justifies the dismissal by citing Title VU’s emphasis on administrative resolution of disputes, here the EEOC made genuine efforts to resоlve the dispute administratively and it was CRST that thwarted administrative resolution by providing the EEOC with incomplete information and rejecting its conciliation proposal. Given the EEOC’s substantial presuit efforts, the district court’s dismissal of trial worthy claims on the ground that the EEOC failed to complete its statutory duties should be reversed. At most, the case might have been stayed for further conciliation. Cf. EEOC v. KLingler Elec. Corp.,
Finally, I respectfully disagree -with the conclusion that the company’s long haul trainers are not supervisors of the women trainees. In Faragher v. City of Boca Raton, the Supreme Court assumed that two employees were supervisors where they had been “granted virtually unchecked authority over their subordinates, directly controlling and supervising all aspects of [the alleged victim’s] day-to-day activities.”
The tangible employment action cases cited by the majority involve situations where the harassers exercised less control over employment decisions than the trainers did in this case. See Cheshewalla v. Rand & Son Const. Co.,
The district court’s analysis overlooked the practical reality created by the relationship between the trainer and the trainee in living and working together in the confined space of a truck over long routes and by the unusual level of control the trainers exercised over every aspect of the trainees’ existence while on the road. The isolated work environment, trainees’ extended time alone with the trainer, the lack of oversight from company management, the trainers’ near total control over trainees’ daily lives, and the trainers’ substantial control over trainees’ promotion chances are sufficient to categorize the trainers as supervisors. The cases cited by the majority on this subject dealt with quite different factual circumstances not relevant to the unique factors present here. I would reverse the district court’s ruling that none of the trainers were supervisors and the resulting dismissal of certain trainees’ claims and remand those claims for consideration of whether CRST made out an Ellerbhr-Famgher affirmative defense.
I concur in the other parts of the majority decision, including the remand of the claims of Starke and Jones and the reversal of the unprecedented $4.5 million attorney fee award against the EEOC in favor of CRST. On remand any fee award against the EEOC should be closely considered since one should be made only in “very narrow circumstances.” E.g. Marquart v. Lodge 8S7,
In sum, the dismissal based on the conclusion that the EEOC failed to fulfill its presuit duties should be reversed, as should the conclusion that none of CRST’s trainers were supervisors. While this is admittedly a complex case, the court should still give effect to Title VII and ensure that the EEOC can fulfill its congressional mandate.