CRST adequately responded to female drivers’ multiple harassment complaints
Tuesday, July 16, 2019

CRST adequately responded to female drivers’ multiple harassment complaints

By Kathleen Kapusta, J.D.

Though the employees argued CRST did not do enough to systemically prevent harassment, its remedial response must be measured only by what it knew at the time.

Although three female truck drivers for CRST sufficiently alleged they were subjected to severe and pervasive harassment by multiple male co-drivers—including offensive comments, inappropriate physical contact, threats, and physical assaults—the long-haul freight transportation company was nonetheless entitled to summary judgment on their Title VII hostile work environment claims. Rejecting the employees’ contention that continued harassment by different individuals showed CRST did not do enough to systemically prevent harassment, a federal district court in Iowa found the employer’s response adequate to stop the harassment as to each particular co-driver and it was not reasonably foreseeable the employees would continue to be harassed by the next co-driver (Sellars v. CRST Expedited, Inc., July 15, 2019, Strand, L.).

CRST teams two drivers per truck so that one can sleep while the other is driving (each truck contains a small sleeper berth area behind the front seats containing bunk beds). According to the employees, they complained of sexual harassment by multiple male co-drivers or trainers, but CRST would not find their complaints were corroborated without an eyewitness or admission. They also claimed it failed to discipline the offending drivers after the complaints were corroborated and failed to discipline managers for not responding promptly to the complaints.

Alleged harassment. The complained of conduct included, among other allegations, comments such as "you have a nice ass, lady," "I’ll hit that," "I haven’t had p***y in six months," and "is it true what they say about Puerto Rican women, that they’re hot?; inappropriate physical touching, including grabbing an employee’s shoulder and demanding to know why she would not sleep with him; a co-driver masturbating in front of an employee and asking if she would like to join him; another exposing his penis to the employee; a co-driver laying naked on top of an employee while she was sleeping and pressing his erect penis against her; threats of rape; and a comment by a co-driver that "one of these days I could just do anything to you, kill you, throw you through the mountains there and no one – nobody ever going to find you."

The employees also alleged that when they complained, CRST required them to exit the truck and they received no pay until they could be paired with another driver. They acknowledged CRST had a written policy against sexual harassment but claimed it did not take immediate steps to ensure their safety or promptly investigate the complained of conduct, and that it did not consistently arrange for accommodations or travel, or reimburse these expenses, after removing them from the truck.

Class certification. The drivers filed a class action asserting claims of hostile work environment and retaliation and the court certified a hostile work environment class and a retaliation class. It subsequently granted CRST’s motion for summary judgment on the class retaliation claim and decertified the hostile work environment claim; thus only the employees’ individual claims remained.

Severe or pervasive? At issue on their hostile work environment claims was whether the alleged conduct was sufficiently severe or pervasive. Although CRST argued that the conduct should be viewed on a complaint-by-complaint basis as to each alleged harasser, the court considered the totality of the conduct each employee purportedly experienced, finding that as to each one, CRST was not entitled to summary judgment based on this element of their claims.

Response. Turning to the adequacy of CRST’s response to the alleged harassment, the employees argued that prior sexual harassment lawsuits filed against the employer and a suggestion by the employee relations manager to install cameras on each truck established a fact issue as to whether it was aware the employees would be subjected to sexual harassment. Further, even after it had actual notice of harassment, they continued to experience multiple instances of harassment and thus a reasonable jury, they asserted, could find it failed to take prompt and effective remedial action.

Actual vs. constructive knowledge. It was undisputed, the court pointed out, that CRST had a reporting procedure in place, which all three employees used, and thus the employer had actual notice of the harassment at issue when it was reported. Their attempt to show it had constructive knowledge through general evidence regarding the previous complaints in separate lawsuits, however, "goes beyond the applicable standard," said the court, noting the employees failed to show that any of the past harassment complaints involved the same alleged harassers here. Explaining that the "law does not require an employer to anticipate the misconduct of its employees when those employees have given no indication that they would engage in misconduct," the court reasoned that to "conclude otherwise would raise the standard to strict liability rather than negligence.

That same conclusion, the court observed, also applied to the ER manager’s suggestion to install cameras in the trucks as that provided no indication that a particular individual posed a threat to other employees. Accordingly, the court found that CRST’s remedial efforts had to be based on its actual notice of the allegations.

Eighth Circuit decision. And here, CRST pointed out, the Eighth Circuit, in Nichols v. Tri-National Logistics, Inc., acknowledged that its remedial response to sexual harassment was prompt and appropriate. In that case, the appeals court found that CRST took appropriate remedial action by (1) removing the female employee from the truck as soon as practicable and 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 employee; (3) relieving her from future assignments with the alleged harasser; and (4) reprimanding the alleged harasser and barring him from team-driving with women indefinitely.

It further noted that these "actions, not necessarily in combination, constitute the type of prompt and effective remedial action that our precedents prescribe." While CRST claimed it responded in the same manner to the employees here, the court found that while it did not always follow the same procedures, after the employees complained, it separated them from the alleged harasser and never paired them with him again.

Not same harasser. The employees countered, however, that the continued harassment they experienced created a fact issue as to whether the employer failed to take preventive measures. But none of them alleged that they continued to be harassed by the same individual after reporting a complaint, said the court, pointing out that the cases in which courts have found an employer’s response to be negligent or inadequate involve continued harassment by the same harasser.

Although the Ninth Circuit, in Nichols v. Azteca Rest. Enterprises, Inc., has held that the employer’s remedial response must go beyond the instant report of harassment and deter future harassers, there was no Eighth Circuit case imposing a similar standard, the court observed, and "even if the case law could be read that broadly, it requires only a response that is ‘reasonably calculated’ to end the harassment." Despite the employees’ assertion that CRST’s response of designating drivers accused of harassment as "male only" was not sufficiently disciplinary, this action, said the court, assured that individuals accused of harassment were not paired with another female driver.

Too great a burden. As to the employee’s assertion that CRST must do more and the recurring harassment showed its response was inadequate, this "puts too great a burden on the employer to foresee misconduct by employees who have no history of misconduct," the court reasoned, explaining that "CRST cannot be held liable for failing to respond to an action by an employee that has not yet happened and that CRST has no reason to suspect will happen." Finding the undisputed evidence showed each employee was never re-paired with the alleged harasser and, in most cases, never saw him again, the court found CRST’s response adequate in stopping the harassment as to that particular co-driver and it was not reasonably foreseeable that the employees would continue to be harassed by the next co-driver.

Granting summary judgment to CRST, the court also noted that this case presented the unique situation in which the Eighth Circuit had already evaluated CRST’s responses to complaints of sexual harassment by a coworker and determined that, "as a matter of law, CRST promptly and effectively remedied any alleged harassment that the women reported. "At a minimum, the Eighth Circuit’s conclusion is instructive in this case and provides further support for CRST’s position."

Other claims. Finally, the court also granted summary judgment against the employees’ individual retaliation claims as well as their claims for constructive discharge.

The case is No. C15-117-LTS.

Attorneys: Thomas Andrew Newkirk (Newkirk Zwagerman) for Cathy Sellars. Kevin J. Visser (Simmons Perrine Moyer Bergman) for CRST Expedited, Inc.

Companies: CRST Expedited, Inc.

Cases: Discrimination SexualHarassment SexDiscrimination Retaliation Discharge IowaNews

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