Sellars v. Crst Expedited, Inc.

359 F.Supp.3d 633

Cathy SELLARS, on Behalf of Herself and All Others Similarly Situated, et al., Plaintiffs,

v.CRST EXPEDITED, INC., Defendant.

No. C15-117-LTS

United States District Court, N.D. Iowa, Cedar Rapids Division.

Signed January 15, 2019

Thomas Andrew Newkirk, Newkirk Zwagerman PLC, Des Moines, IA, Giselle Schuetz, Pro Hac Vice, Rebecca Houlding, Pro Hac Vice, Law Offices of Joshua Friedman, PC, Joshua N. Friedman, Pro Hac Vice, Shilpa Narayan, Pro Hac Vice, Friedman & Houlding LLP, Mamaroneck, NY, for Plaintiffs.

Kevin J. Visser, Nicholas Petersen, Simmons Perrine Moyer Bergman PLC, Cedar Rapids, IA, James T. Malysiak, Pro Hac Vice, John H. Mathias, Jr., Pro Hac Vice, Jenner & Block LLP, Chicago, IL, Jessica Ring Amunson, Pro Hac Vice, Jenner & Block LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Leonard T. Strand, Chief Judge

TABLE OF CONTENTS

I. INTRODUCTION ...641

II. BACKGROUND ...641

III. ANALYSIS ...642

A. Motion for Partial Summary Judgment on Retaliation Claim ...642

1. Parties' Arguments ...642

2. Applicable Law ...642

3. Undisputed Facts ...643

a. Defendant's Statement of Facts ...643

i. CRST Operations ...643

ii. CRST Written Policies ...644

iii. CRST Practices in Responding to Complaints of Sexual Harassment ...645

b. Plaintiffs' Statement of Additional Facts ...647

4. Analysis ...652

a. Adverse Employment Action ...653

i. Admissibility of Plaintiffs' Evidence ...655

ii. Is There a Policy, Pattern or Practice? ...657

iii. Does the Alleged Policy, Pattern or Practice Involve an Adverse Employment Action? ...659

b. Retaliatory Motive ...660

B. Motion for Decertification of Hostile Work Environment Class ...664

1. Parties' Arguments ...664

2. Factual Background ...665

a. Failure to Corroborate Complaints Without an Eyewitness or Admission ...667

b. Failure to Discipline When Complaints are Corroborated ...669

c. Failing to Discipline DMs Who Do Not Promptly Respond Appropriately to Complaints ...669

3. Applicable Law ...671

4. Analysis ...673

IV. CONCLUSION ...681

I. INTRODUCTION

This case is before me on defendant's motion (Doc. No. 171) for partial summary judgment on plaintiffs' retaliation claim and motion (Doc. No. 172) for decertification of the hostile work environment class. Plaintiffs have filed resistances (Doc. Nos. 187, 188)¹ and defendant has filed replies (Doc. Nos. 197, 198). I also allowed plaintiffs to file a sur-reply (Doc. No. 201) as to both motions. I find that oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) against their employer, CRST Expedited, Inc. (CRST). On March 30, 2017, I entered an order certifying the following classes:

a. The Hostile Work Environment Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies:

(1) failing to find their complaints were corroborated without an eyewitness or admission,

(2) failing to discipline drivers after complaints were corroborated; and

(3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints.

b. The Retaliation Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to retaliation based on sex as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment.

See Doc. No. 85 at 54-55. I also certified the following issues pursuant to Rule 23(c)(4)(a):

a. As to the Hostile Work Environment Class, whether CRST has any of the following policies, patterns or practices that create or contribute to a hostile work environment:

(1) failing to find their complaints were corroborated without an eyewitness or admission,

(2) failing to discipline drivers after complaints were corroborated and

(3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints and

b. As to the Retaliation Class:

Whether CRST has a policy, pattern or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck except when they are a lead driver or owner-operator

Id. at 55. I noted the order could be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Id. at 56. CRST now seeks summary judgment on the retaliation claim and decertification of the hostile work environment class.

III. ANALYSIS

A. Motion for Partial Summary Judgment on Retaliation Claim

1. Parties' Arguments

CRST argues that plaintiffs' retaliation claim fails for four reasons:

1. Plaintiffs cannot show that they suffered any materially adverse employment action.

2. Plaintiffs cannot show that their removal from their trucks was motivated by retaliatory animus against them for complaining of sexual harassment.

3. CRST has legitimate, non-retaliatory reasons for its remedial actions.

4. The record lacks any evidence of pretext.

See Doc. No. 171.

Plaintiffs argue an unpaid suspension or pay cut in response to sexual harassment complaints constitutes a materially adverse employment action. They contend they have direct evidence of retaliatory intent based on CRST's admission that its policy is to remove women who complain about harassment from their trucks and, depending on whether the removal occurred before or after July 2015, to pay them nothing or reduced pay. Plaintiffs also rely on a Human Resources (HR) PowerPoint presentation in which CRST considered whether female drivers were "punished for raising concerns" by having to get off the trucks and lose money while the accused drivers were allowed to stay on and continue earning money. See Doc. No. 191-1 at 22. Alternatively, plaintiffs argue that under the McDonnell Douglas burden shifting analysis, one could infer a retaliatory motive, for which CRST has no legitimate, non-retaliatory reason for removing women who complain of harassment from the trucks, resulting in a loss of pay. Even if CRST's reasons of safety and prompt investigation could be viewed as legitimate, they argue the evidence demonstrates these reasons are pretextual. They argue CRST's reasons for removing women from the trucks have shifted and that the temporal proximity between plaintiffs' complaints and CRST's actions indicates pretext.

In reply, CRST argues plaintiffs have not demonstrated a genuine issue of material fact as to a standard operating procedure of retaliation. See Doc. No. 198 at 7-11. Specifically, it argues plaintiffs cannot rely on their summary exhibit because it is inadmissible and unreliable. Id. at 11-14. With regard to retaliatory intent, they argue plaintiffs have not demonstrated a genuine issue of material fact based on either direct or indirect evidence. Id. at 14-23.

2. Applicable Law

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A material fact is one that " ‘might affect the outcome of the suit under the governing law.’ " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "the substantive law will identify which facts are material." Id. Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not. Id.

An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman , 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ), or when " ‘a reasonable jury could return a verdict for the nonmoving party’ on the question." Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). Evidence that only provides "some metaphysical doubt as to the material facts," Matsushita , 475 U.S. at 586, 106 S.Ct. 1348, or evidence that is "merely colorable" or "not significantly probative," Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505, does not make an issue of material fact genuine.

As such, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" so as to "require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson , 477 U.S. at 248-49, 106 S.Ct. 2505. The party moving for entry of summary judgment bears "the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel , 953 F.2d at 395 (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods , 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex , 477 U.S. at 322, 106 S.Ct. 2548.

In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party....