Equal Employment Opportunity Commission, Plaintiff - Appellant, Janet Boot, Intervenor Plaintiff, Remcey Jeunenne Peeples; Monika Starke, Intervenor Plaintiffs - Appellants, v. CRST Van Expedited, Inc., Defendant - Appellee.
Nos. 09-3764/09-3765/10-1682
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: May 8, 2012
Submitted: May 7, 2012
Appeals from the United States District Court for the Northern District of Iowa.
SMITH, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) filed suit in its own name against CRST Van Expedited, Inc. (CRST), alleging that CRST subjected Monika 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“),
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
As set out below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. Background
This consolidated appeal concerns a sweeping employment-discrimination suit that the EEOC instituted against CRST, one of the country‘s largest interstate trucking
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 sleеper 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 entire 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.
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 described the Lead Driver-trainee relationship as “really no different than the role of supervisors in other industries and organizations.”
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
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
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.2 CRST also disclosed the identity of two other female drivers, Lori Essig and Tamara Thiel, who, like Starke, had filed formal charges of discrimination with the EEOC against CRST.
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 Peeples 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 [c]harges of [d]iscrimination 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 informatiоn 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 conciliate 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 Wolle a voicemail message asking Wolle to send CRST‘s conciliation proposal by August 16, 2007. Wolle responded that he preferred that the EEOC initiate the proposal process.
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
7. . . . two of [CRST‘s] [L]ead [D]rivers subjected Starke to sexual harassment during their supervision of Starke (including, but not limited to, unwelcome sexual conduct, other unwelcome 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 assigns, and all persons in active concert or participation with them, from engaging in sexual harassment, [and] any other employment practice which discriminates on the basis of sex“; (2) an order compelling “CRST to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices“; (3) a “make[-]whole” order awarding Starkе and the class backpay and benefits with prejudgment interest; (4) an order awarding Starke and the class compensatory damages and punitive damages; and (5) an order awarding the EEOC the costs of this action.
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 the district court‘s and CRST‘s repeated requests to do so. According to the
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 “[i]nvestigation 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 “[i]nvestigation 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 “[i]nvestigation is continuing.” Id. at 1.
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 based upon 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 аlleged 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).
The district court issued two orders to the EEOC, compelling the agency to (1) immediately amend its list of 270 women as soon as it learned of any women whose claims it no longer wished to pursue and (2) make all women on whose behalf it sought relief available to CRST for deposition. Id. at *10. The district court warned the EEOC that its failure to present any woman for deposition before discovery‘s conclusion on January 15, 2009, would result in a “discovery sanction” forbidding that woman from testifying at trial and barring the EEOC from seeking relief on her behalf in the case. Id. As authority for this order, the district court “invoked its inherent case[-]management authority” under, inter alia,
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,4 including Starke, reasoning that the women were judicially estopped from prosecuting their claims. EEOC v. CRST Van Expedited, Inc., 614 F. Supp. 2d 968 (N.D. Iowa 2009). The court applied judicial estoppel because each woman failed to disclose on her bankruptcy petition her involvement
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, 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009). Having disposed of all the allegedly aggrieved women in the EEOC‘s putative “class,” the district court dismissed the EEOC‘s complaint.
We now consider three consolidated appeals: (1) Starke‘s and Peeples‘s joint appeal,9 in which Starke appeals the summary judgment of her case on judicial estoppel grounds and additionally joins Peeples in appealing summary judgment on the merits; (2) the EEOC‘s first numbered appeal,10 consolidated with Starke‘s and Peeples‘s, in which the EEOC appeals the district court‘s multiple dispositive rulings that we recounted above; and (3) the EEOC‘s second numbered appeal,11 in which it challenges the district court‘s award of attorneys’ fees.
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
1. Overview of Title VII‘s Pre-suit Requirements
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.
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, 432 U.S. 355, 368 (1977).
Thus, “[i]n the Equal Employment Opportunity Act of 1972, Congress established an integrated, multistep enforcement procedure culminating in the
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 VII.‘” Hickey-Mitchell Co., 507 F.2d at 948 (alterations in original) (emphasis added) (quoting EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321, 1333 (D. Del. 1974)); accord EEOC v. Am. Nat‘l Bank, 652 F.2d 1176, 1185 (4th Cir. 1981).
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 WL 2524402, at *19. On appeal, the EEOC avers that the district court wrongly concluded that the EEOC‘s investigation, resulting reasonable-cause determination, and conciliation were insufficient to satisfy § 706. It argues that the district court (1) misconstrued the EEOC‘s efforts through serial requests for information to investigate discrimination suffered by persons other than Starke; and (2) incorrectly assumed that the “EEOC had to investigate, issue a cause finding [regarding], and conciliate each individual instance of CRST‘s failure to respond appropriately to a harassment
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 VII.‘” 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. The EEOC 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., 534 U.S. 279, 291 (2002). And, as a general rule, “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.” EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984).
Although “the EEOC enjoys wide latitude in investigating and filing lawsuits related to charges of discrimination, Title VII limits that latitude to some degree by
[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., 973 F.2d 664, 668 (8th Cir. 1992) (emphasis added). Thus, while “[t]he EEOC may seek relief on behalf of individuals beyond the charging parties and for alleged wrongdoing beyond those originally charged,” it “must discover such individuals and wrongdoing during the course of its investigation.” Dillard‘s Inc., 2011 WL 2784516, at *6 (citing Jillian‘s, 279 F. Supp. 2d at 980; EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th Cir. 1996) (“[The] EEOC may allege in a complaint whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.“); EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir. 1996) (“[The EEOC] may, to the extent warranted by an investigation reasonably related in scope to the allegations of the underlying charge, seek relief on behalf of individuals beyond the charging parties who are identified during the investigation.“); Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (“[W]here facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.” (internal quotation marks
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, 279 F. Supp. 2d at 982).12 “Where the scope of its pre-litigation efforts are limited—in terms of
geography, number of claimants, or nature of claims—the EEOC “may not use discovery in the resulting lawsuit ‘as a fishing expedition’ to uncover more violations.“” Id. (quoting EEOC v. Target Corp., No. 02-C-146, 2024 WL 1461298 (E.D. Wis. May 16, 2007) (citing Walner, 91 F.3d at 971)).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 [d]iscrimination that [CRST] has received in the past five years from any government agency that alleges sexual harassment.‘“” CRST Van Expedited, Inc., 2009 WL 2524402, at *3. It additionally requested that CRST provide “‘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.‘” Id. The EEOC later requested information for “female driver[s] that began [their] employment on or after January 1, 2005.” Id. at *4. Although CRST felt that the EEOC‘s request for such information was “overly broad,” it ultimately “mailed the remainder of the information to the EEOC on a computer disc.” Id. at *5. Thereafter, the EEOC issued a Letter of Determination to CRST, stating, inter alia, that “there is reasonable cause to believe that [CRST] has subjected a class of employees and prospective employees to sexual harassment, in violation of
“The Letter of Determination did not provide CRST with any notice as to the size of the ‘class of employees and prospective employees [subjected] to sexual harassment.‘” Id. at *8. And, during conciliation, the EEOC was unable “to provide [CRST] names of all class members ..., or an indication of the size of the class.” Id. at *7. Likewise, “the EEOC‘s Complaint provides no indication of how many
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., 973 F.2d at 668. Instead, it engaged in fact-gathering as to the “class” “during the discovery phase of an already-filed lawsuit.” Dillard‘s Inc., 2011 WL 2784516, at *7 (quotation and citation omitted). Our review of the undisputed facts demonstrates that the EEOC was “us[ing] discovery in the resulting lawsuit as a fishing expedition to uncover more violations.” Id. (quotation and citation omitted). “[T]he EEOC did not investigate the specific allegations of any of the 67 allegedly aggrieved persons [, i.e., the class members,] until after the Complaint was filed.” CRST Van Expedited, Inc., 2009 WL 2524402, at *16 (emphasis added). Tellingly,
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., 532 F.2d 359, 366 n.14 (4th Cir. 1976) (“Since the determination of reasonable cause defines the framework for conciliation, it follows that the issues to be litigated here must be those which can fairly be said to be encompassed within the determination resulting from the [initiating] chargе.“) (quotations and citation omitted).13
Moreover, contrary to the EEOC‘s contention, the district court did not abuse its discretion in opting to dismiss, rather than stay, the EEOC‘s complaint as to these 67 women. Under
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., 614 F. Supp. 2d at 973–77. Specifically, the district court concluded that, because each of the three women failed to disclose her involvement in the instant lawsuit as a potential source of income on her bankruptcy petition, she is judicially estopped from seeking relief. Id. Likewise, the district court also applied judicial estoppel to the EEOC, precluding the EEOC from seeking redress in its own § 706 suit for harassment that Starke, Payne, or Timmons allegedly suffered. Id. at 973.
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
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 under
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
We review for abuse of discretion a district court‘s invocation of judicial estoppel. Triple H Debris Removal, Inc. v. Companion Prop. & Cas. Ins. Co., 647 F.3d 780, 785 (8th Cir. 2011) (citing Capella Univ., Inc. v. Exec. Risk Specialty Ins. Co., 617 F.3d 1040, 1051 (8th Cir. 2010)). We apply this deferential standard of review based on our acknowledgment that the district court is best equipped to decide judicial estoppel‘s applicability “because determining whether a litigant is playing fast and loose with the courts has a subjective element and its resolution draws upon the trier‘s intimate knowledge of the case at bar and his or her first-hand observations of the lawyers and their litigation strategies.” Stallings v. Hussman Corp., 447 F.3d 1041, 1046 (8th Cir. 2006) (quotation, alteration, and citation omitted). We will uphold the district court‘s decision to apply judicial estoppel “unless it plainly appears that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the proper factors.” Id. at 1046–47 (quotations and citation omitted).
“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 seеking 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, 532 U.S. at 750–51).
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
“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 court never discharged Stallings‘s debts based on the information that Stallings provided in his schedules.” Id. at 1149. Payne filed her bankruptcy petition in 2005, prior to the institution of suit, but that does not spare her from possible judicial estoppel. Under the principles of judicial estoppel, she was still obliged to amend her petition to disclose her involvement or potential involvement in the post-petition lawsuit. Id. at 1148. As we stated in Stallings,
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 because 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).
“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, 532 U.S. at 753 (“We do not question that it may be appropriate to resist application of judicial estoppel when a party‘s prior position was based on inadvertence or mistake.” (quotations and citation omitted)). That said, no evidence of any such good-faith error or omission is present in this case. In fact, some evidence suggests otherwise. As already noted, Starke herself concedes that the district court correctly judicially estopped her. Also, Timmons and her husband filed their joint petition an entire year after the EEOC instituted suit in this matter, indicating, at the very least, that they had notice of Timmons‘s potential claim.
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., 614 F. Supp. 2d at 975 (citing New Hampshire, 532 U.S. at 750). “‘Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.‘” New Hampshire, 532 U.S. at 749 (emphasis added) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)).
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 Timmons‘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 aggrieved persons for whom it seeks relief in this action under [§ 706 of Title VII].‘” Id. at 976.
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, 534 U.S. at 296–98.) According to the EEOC, it “filed this litigation not for the personal benefit of any particular claimant, but for the broader public interest in enforcing Title VII and ensuring CRST maintains a workplace free from discrimination.”
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
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., 446 U.S. at 324; see also Occidental Life Ins. Co., 432 U.S. at 368 (“The EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties . . . .“). In Waffle House, the Supreme Court considered “whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the . . . ADA.”15 534 U.S. at 282. The Fourth Circuit had held that, insofar as the EEOC was suing in its own capacity under § 706 to vindicate the public interest in discrimination-free workplaces, the EEOC was limited
If it were true that the EEOC could prosecute its claim only with [the employee]‘s 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 emplоyee 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.
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
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.16
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-environment claims against CRST. ”
As we have explained,
[h]ostile work environments creаted by supervisors or coworkers 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 plaintiff‘s 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., 469 F.3d 1191, 1194–95 (8th Cir. 2006). Critically, “[CRST] cannot be vicariously liable for sexual harassment [perpetrated] by non-supervisory coworkers.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010).
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., 354 F.3d 938, 940 (8th Cir. 2004). Under the Ellerth-Faragher Defense, CRST may avoid vicarious liability for a supervisory employee‘s
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, 626 F.3d at 419. The district court determined that Lead Drivers did not serve as the trainees’ supervisors. In contrast, the EEOC maintained before the district court, as it does here on appeal, that a CRST Lead Driver is a “supervisor” in every practical sense of the word. Specifically, the EEOC avers that “CRST gives [Lead Drivers] virtually unchecked authority and control over all aspects of a trainee‘s daily activities, as well as authority to recommend whether a trainee is ready for full-driver status, and their recommendations are virtually always followed.” CRST cоunters that “the functions and powers that [the] EEOC attributes to [L]ead [D]rivers are no greater than those of the team leaders and foreman that this court has held are not supervisors.”
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., 359 F.3d 1049, 1057 (8th Cir. 2004) (quoting Joens, 354 F.3d at 940). It is undisputed that none of CRST‘s Lead Drivers wielded any such power. On the contrary, the record reflects that, at best, CRST‘s Lead Drivers could only (1) dictate minor aspects of the trainees’ work experience, such as
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., 496 F.3d 880, 883 (8th Cir. 2007) (quotations and citation omitted). Thus, in Weyers, we declined to designate a “team leader” a supervisor because, “[a]lthough [the alleged harasser] had the authority as team leader to assign employees to particular tasks, he could not reassign them to significantly different duties.” Id. at 1057. Similarly, in Merritt, we refused to recognize the allegedly harassing “reliability technician,” 496 F.3d at 881, as a supervisor because “[h]is authority was restricted to assigning [the plaintiff] to work on various tasks that were part of her work duties,” id. at 884. The same holds true here. The EEOC has adduced no evidence suggesting that a CRST Lead Driver possessed the power to do anything more than assign a trainee to specific tasks already within that trainee‘s normal, day-to-day duties.
Second, CRST‘s reliance, in part, on a Lеad 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 supervisor. Although the Supreme Court declined, in Ellerth and Faragher, to “answer the question, ‘who is a supervisor?,‘” Joens, 354 F.3d at 940, it did observe that a “tangible employment decision ... may be subject to review by higher level supervisors,” Ellerth, 524 U.S. at 762. Indeed, the EEOC relies on this very observation in Ellerth to support its own assertion that “[i]t is immaterial that CRST may, on occasion, not follow a trainer‘s recommendation.” However, the EEOC‘s argument in this regard fails for two reasons. First, aside from its bare assertion, the EEOC offers no evidence that CRST simply “rubber stamped” its Lead Drivers’ recommendations. See Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (holding that if a non-decisionmaker performs an act motivated by a discriminatory bias that is intended to cause, and that does proximately cause, an adverse employment action, then the employer has “cat‘s paw” liability). Second, we have concluded, under almost identical circumstances, that a coworker‘s authority to make mere recommendations or evaluations to a superior about tangible employment decisions pertaining to a fellow employee does not constructively promote that coworker to a supervisor for purposes of vicarious Title VII liability. See, e.g., Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 851 (8th Cir. 2005) (holding that a harassing foreman was merely his victim‘s coworker, and not the victim‘s supervisor, because the foreman‘s own supervisor possessed the authority to hire, fire, and promote the laborers, and “although [the foreman‘s supervisor] may have consulted with [the harassing foreman] on such matters, the record [was] clear that [the harassing foreman] lacked any such authority“); Weyers, 359 F.3d at 1057 (“While it is true that [the alleged harasser] signed at least three of [the plaintiff‘s] initial performance evaluations and that [the supervisor] acknowledged that he had based his decision to terminate [the plaintiff] at least in part on [the plaintiff‘s] job[-]evaluation scores, [the alleged harasser] himself did not have the authority to take tangible employment action against [the plaintiff].“).
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 hаrassing coworker‘s “apparent authority would be an insufficient basis to support a finding of supervisor status.” Weyers, 359 F.3d at 1057 n.7; accord Cheshewalla, 415 F.3d at 851 (reaffirming that “[an employee‘s] belief that [her harassing coworker] possessed the authority of a supervisor does not alter our conclusion” that the harasser is a coworker nonetheless (citing Weyers, 359 F.3d at 1057 n.7)).
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., 619 F.3d 923, 929 (8th Cir. 2010) (alterations in original) (quoting Carter, 173 F.3d at 700). Given these elements, we next address the district court‘s summary-judgment rulings against the EEOC on its hostile work environment claims.
2. The Severity or Pervasiveness of Certain Harassment
The district court granted CRST summary judgment on the EEOC‘s hostile work-environment claims on behalf of three women,17 concluding that, as a matter of law, each alleged harassment that was neither sufficiently severe nor pervasive to support a hostile work-environment claim. The district granted CRST summary judgment on the EEOC‘s claims on behalf of 11 additional women,18 again citing,
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.”
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, 173 F.3d at 700. “Such discrimination extends beyond terms and conditions in the ‘narrow contractual sense’ and includes discriminatory harassment so severe or pervasive as to alter the conditions of employment and create a hostile working environment.” Id. (emphasis added) (citing Faragher, 524 U.S. at 786; Meritor Sav. Bank, FSB, 477 U.S. at 67). “There can be no doubt federal harassment standards are demanding.... Indeed, the Supreme Court has ‘made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.‘” Al-Zubaidy, 406 F.3d at 1038 (quoting Faragher, 524 U.S. at 788) (internal citation omitted). Only “[w]hen the workplace is permeated
“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, 173 F.3d at 702. We also consider a harassment victim‘s “physical proximity to the harasser[] and the presence or absence of other people.” Id. (internal citations omitted). Proximity and the absence of others are relevant here given the confined quarters and remote setting in which CRST‘s trainees worked with their Lead Drivers. “Once there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.” Sheriff, 619 F.3d at 931.
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,20 boasting about past sexual exploits, sporadic remarks of sexual vulgarity, and highly offensive but isolated instances of propositioning for sex. None of the relevant factors listed above, including the women‘s “physical proximity to [their] harasser[s] and the presence or absence of
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 harassmеnt 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 truck
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 hеr “his bitch” five or six times,
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,22 concurring in the district court‘s conclusion that, as a matter of law, the alleged harassment was neither sufficiently severe nor pervasive. However, we reverse the district court‘s grant of summary judgment as to the EEOC‘s claims on behalf of Tillie Jones. We conclude that the EEOC created a genuine issue of material fact as to the severity or pervasiveness of the harassment that Jones allegedly suffered. Finally, although we also conclude that the EEOC has created a genuine fact issue as to the severity or pervasiveness of the harassment that Sherry O‘Donnell allegedly suffered, for the reasons stated in Part II.C.3. infra, we affirm the district court‘s grant of summary judgment on the EEOC‘s claims on her behalf.
The EEOC also appeals the district court‘s grant of summary judgment on its claims as to 34 women23 who, according to the district court, either (1) allege harassment that CRST neither knew nor should have known about or (2) allege harassment that CRST, upon being notified of, promptly and effectively remedied. Specifically, the district court granted summary judgment on the EEOC‘s claims concerning 11 women, see supra n.5, and some days later granted summary judgment as to 22 more. Additionally, in its order granting CRST summary judgment on the EEOC‘s claims on behalf of January Jackson for insufficient severity or pervasiveness, the district court alternatively concluded that CRST neither knew nor should have known about her harassment.
We have already affirmed the district court‘s grant of summary judgment affecting nine24 of these 34 women based on its alternative conclusion that their alleged harassment was not sufficiently severe or pervasive. See supra Part II.C.2. Therefore, we need not address whether CRST knew or should have known about the harassment that those nine women suffered. See Alvarez, 626 F.3d at 419 (“When an employee complains about inappropriate conduct that does not rise to the level of a violation of law, . . . there is no liability for a failure to respond.“).
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.1., the
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., 578 F.3d 787, 801 (8th Cir. 2009). “An employer has actual notice of harassment when sufficient information either comes to the attention of someone who has the power to terminate the harassment, or it comes to someone who can reasonably be expected to report or refer a complaint to someone who can put an end to it.” Id. at 802 (citation omitted). Simply put, “[i]n the context of sexual harassment claims, ‘[a]ctual notice is established by proof that management knew of the harassment.‘” Id. (second alteration in original) (quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)). Constructive notice is established in the following circumstances: “[(1)] where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or [(2)] where the harassment is so pervasive and open that a reasonable employer would
Of the remaining 21 women, we conclude, as a matter of law, that CRST lacked actual notice as to ten of them.27 Specifically, each of these ten women either never reported the alleged sexual harassment to CRST or reported it too late to afford CRST a reasonable opportunity to promptly and effectively address it. We note that, “[i]n some cases, . . . an employee may be excused for a delay in reporting harassment, if the employee can demonstrate a truly credible threat of retaliation.” Alvarez, 626 F.3d at 422 (quotations and citation omitted). However, a thorough review of each woman‘s deposition testimony confirms that the EEOC has failed to demonstrate that any of these ten women faced such a credible threat.28 Thus, CRST lacked actual notice because the EEOC has produced no evidence “that management knew of the harassment.” Sandoval, 578 F.3d at 802 (quotations and citation omitted).
Furthermore, on the present record, we must also conclude, as a mattеr of law, that CRST lacked constructive knowledge of any harassment that the ten women allegedly suffered. The EEOC‘s argument to the contrary is linked to its separate contention that the district court abused its discretion in excluding documentary
Although we review the district court‘s grant of summary judgment de novo, Mayer, 647 F.3d at 791, “[w]e review the district court‘s imposition оf discovery sanctions for abuse of discretion,” Sentis Grp., Inc. v. Shell Oil Co., 559 F.3d 888, 898 (8th Cir. 2009) (quotations and citation omitted). The undisputed record reflects that, after protracted discovery, the district court ordered the EEOC, by a certain date, to present for deposition all allegedly aggrieved women. Moreover, the district court directed that “[i]f the EEOC fails to make a woman available, as a discovery sanction the court will not permit her to testify at trial and will bar the EEOC from seeking relief on her behalf in this case.” EEOC v. CRST Van Expedited, Inc., 257 F.R.D. 513, 519 (N.D. Iowa 2008) (emphasis added). The EEOC concedes that it failed to present for deposition the 99 women. In response to a party‘s failure to obey such a discovery order, the
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).
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, 173 F.3d at 702 (emphasis added). In each of the 11 women‘s cases, CRST removed the woman from the alleged harasser‘s truck within 24 hours of the harassment being
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 alleged 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
We also conclude that the district court did not err in granting summary judgment on Peeples‘s
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.
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
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
MURPHY, Circuit Judge, 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
During the course of the
Neither
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. 279 F. Supp. 2d 974, 983 (S.D. Ind. 2003). It dismissed the nationwide class claims however because the employer had not had notice that the EEOC‘s investigation was national in scope. Id. Similarly, the court in EEOC v. Dillard‘s Inc. stated that the EEOC “is not required to identify every potential class member” before filing suit but permitted the EEOC to litigate only local class members’ claims because the “scope of its pre-litigation efforts [was] limited” to one store location. No. 08-1780, 2011 WL 2784516, at *6-8 (S.D. Cal. 2011).
The majority‘s new requirement that the EEOC separately investigate and conciliate each alleged victim of discrimination is inconsistent with the purpose of
While the majority justifies the dismissal by citing
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.” 524 U.S. 775, 808 (1998) (internal quotations and punctuation omitted). It observed that the alleged victim had been “completely isolated” from her employer‘s higher management. Id. (citation omitted). Like the supervisors in Faragher, the CRST long
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., 415 F.3d 847, 851 (8th Cir. 2005) (harasser “may have consulted” with management on tangible employment action); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004) (termination decision based “in part” on alleged harasser‘s performance еvaluation). Here, the lead drivers’ pass/fail evaluations were relied on almost exclusively in deciding whether to promote a particular trainee. The fact that their promotion recommendations were nearly always followed weighs in favor of characterizing them as supervisors. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 747 (1998) (assuming harasser was supervisor although his hiring and promotion decisions were “subject to the approval of his supervisor, who signed the paperwork“). The record reveals that even CRST‘s human resources director characterized the trainers as “really no different than . . . supervisors.”
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’
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 837, 26 F.3d 842, 848 (8th Cir. 1994); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (affirming denial of attorney fee award against EEOC despite employer contention that it failed to conciliate).
In sum, the dismissal based on the conсlusion 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
Notes
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 identit[ies] 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.
[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 bе 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.
At oral argument, the court inquired as to whether, “in light of the bankruptcy proceeding” and United States ex rel. Gebert v. Transport Administrative Services, 260 F.3d 909 (8th Cir. 2001), Starke had standing to pursue her claim. In response, Starke‘s counsel stated:
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.)