The allegations are appalling — graphic charges of assault and degradation by more than 200 newly hired women truckers on long-haul drives with men who were supposed to be training them.
Some say they were raped on the shoulders of dark roads. Others claim they were coerced into providing sex in exchange for passing grades. Male trainers allegedly drove without pants, masturbated in front of their trainees, groped them while they were driving, stole their underwear and refused to let them go to the bathroom.
If ever there was a compelling case of sexual harassment for the U.S. Equal Employment Opportunity Commission, the suit against trucking giant CRST Van Expedited Inc. would seem to be it. And yet the agency lost resoundingly in district court, where it was ordered to pay $4.5 million in attorney fees and costs, and fared only marginally better on appeal. The result is a potentially devastating precedent for the EEOC that threatens its key goal of bringing more “systemic” cases involving widespread discrimination.
The EEOC has asked for a panel rehearing or en banc review of the 2-1 decision by the U.S. Court of Appeals for the Eighth Circuit. As the court considers the request, the question remains: Was the outcome the result of a few idiosyncratic judges? Or did EEOC attorneys make fundamental errors in strategy and presentation that left only two of 270 plaintiffs with a chance to have their day in court?
“I have been in the business a long time,” said the trial court judge, Chief Judge Linda Reade of U.S. District Court for the Northern District of Iowa, according to a court transcript. “I also have never had a case brought by a government agency that was such a mess. And that’s not a legal term — but not thought through, not ready for trial after an extensive amount of time, not pled the way you wanted to try it. I just have never seen that from a government agency.”
EEOC General Counsel P. David Lopez in an interview defended his agency’s performance, noting that the EEOC has successfully brought dozens of other systemic-discrimination cases using the same approach. He called the court decisions “unprecedented and a new rule” that would seemingly require the EEOC to individually investigate and attempt to settle the allegations of every class member before suing an employer.
“We continue to think that we are right,” he said. “We don’t agree with the district court’s assessment that we failed to comply with the presuit requirements” of Title VII of the Civil Rights Act, which prohibits employment discrimination.
As for the employment bar, it’s riveted. The ink was barely dry on the Eighth Circuit’s February opinion before defense-side lawyers began citing it in pending cases across the country. “If the decision is followed by other circuits, it’s going to dramatically impact the EEOC’s ability to bring cases on a classwide basis,” said Dana Kravetz, who chairs the labor and employment practice at Michelman & Robinson in Los Angeles. “This is one for employers.”
The case began in 2005, when Monika Starke was hired as a new driver by CRST, a family-owned business headquartered in Cedar Rapids, Iowa, that employs more than 2,500 long-haul drivers.
New CRST drivers are sent on the road for 28 days straight with an experienced “lead driver,” who at the end of the trip gives the trainee a pass/fail evaluation. The drivers sleep in bunks in the back of a small cab and are alone together around the clock. It’s an environment with ample opportunity for sexual harassment, but the EEOC in prior cases has asserted that it’s discriminatory for a trucking company to pair women drivers only with other women.
Starke spent a week driving with a male trainer who allegedly made repeated sexual comments and twice tried to pull down her pants while his were down as well. She complained to the company and was assigned a new trainer, who allegedly forced her to have sex with him in order to get a passing grade. (The trainer said the relationship was consensual.)
In December 2005, Starke filed a charge of discrimination with the EEOC. When the EEOC asked CRST for any additional information “you deem relevant to the charge,” the company provided the names of two other female drivers who had complained of harassment.
The EEOC in court papers faulted CRST for not being more forthcoming. “EEOC attempted to gather information about the scope of the harassment problem during its investigation, but CRST significantly under reported the complaints it received.”
On Sept. 27, 2007, the EEOC filed suit against CRST on behalf of Starke and “a class of similarly situated female employees.” The problem was, the EEOC still didn’t exactly know who they were — Reade, who was appointed to the bench by George W. Bush in 2002, called it a “sue first, ask questions later” litigation strategy.
The EEOC, which according to court papers was represented before the district court by Ann Marie Henry, Brian Tyndall, Jean Kamp, Jeanne Bowman Szromba and Nicholas Pladson, sent out more than 2,700 letters to former CRST female employees soliciting their participation in the suit.
During the next 12 months, the EEOC came up with 79 class members. “As discovery progressed, it became clear to the court that the EEOC did not know how many allegedly aggrieved persons for whom it was seeking relief, and was using discovery to find them,” Reade wrote, and set a deadline of Oct. 15, 2008, to name class members. In the final week, the EEOC added almost 200 additional women. (The original number was actually higher, but the list contained 14 duplicate names and one man.)
CRST, represented by a team of lawyers from Jenner & Block led by John Mathias Jr., asserted that the EEOC simply added names from CRST’s human resources files without ever speaking to the plaintiffs. Mathias declined comment on the case.
The EEOC had just three months to get all 270 women deposed before discovery ended. Those who were not deposed would be dismissed from the case, Reade ruled.
CRST agreed to make five lawyers available to travel to any city proposed by the EEOC for depositions during four days in December. But Magistrate Judge Jon Stuart Scoles wrote that many of the appointments went unused. “The only explanation offered by EEOC is that it was overwhelmed by the logistics associated with scheduling the witness’ depositions.”
In the end, the EEOC produced 150 women for depositions. As for the other 120 would-be plaintiffs, they were dismissed and barred from any recovery as class members.
The EEOC showed signs of having problems managing the case in other areas as well. Reade in a 2009 order complained that “the court is having a very difficult time making heads or tails” of EEOC materials that “are replete with typographic and other technical errors.”
She ordered the EEOC to correct and refile more than a dozen documents, with a caveat (underlined for emphasis): “Plaintiff is not permitted to change any aspect of its arguments.” In a footnote of a subsequent order, she wrote with thinly veiled irritation, “The EEOC did not merely correct its typographical errors but instead elaborated upon and changed various substantive aspects of its responses.”
The problems persisted in the Eighth Circuit, where an appendix to the EEOC’s opening brief lists 46 corrected errors, while the reply brief appendix shows 38 corrections.
Lopez declined to discuss the errors. In a statement, the EEOC said, “We aspire to produce top quality legal work, and we are widely known for that.”
McDermott Will & Emery partner Linda Doyle, who was not involved in the case, agreed that so many mistakes “are highly unusual for the EEOC. It’s hard to ascertain if they were overwhelmed.”
With almost half of the class members eliminated, the EEOC was soon hit with another unfavorable order. The agency had sued CRST under Section 706 of Title VII, its bread-and-butter statute for discrimination claims. But Reade wrote that the EEOC also appeared to be “pursuing matters in this case that it did not plead or allege” — namely, that CRST engaged in a “pattern or practice” of sexual harassment, in violation of Section 707.
The two statutes are similar, but 707 doesn’t allow for compensatory or punitive damages. It does, however, offer an advantage when it comes to the statute of limitations — the EEOC in the past has successfully argued that it can seek relief for victims of pattern or practice claims “as far back as the evidence warrants” because the violations are ongoing. Claims under Section 706 are limited to discrimination that occurred no more than 300 days before the charge was filed.
“It would appear the EEOC is attempting to have its cake and eat it, too,” Reade wrote in a lengthy April 2009 order ruling that the EEOC failed to present sufficient evidence that CRST engaged in a pattern or practice of discrimination. “To show a pattern or practice of unlawful employment practices, the EEOC must do more than quibble with alleged deficiencies in CRST’s anti-sexual harassment policies and practices. It must cite legal authority.”
Because she found no pattern or practice, Reade then dismissed the claims of 12 plaintiffs that were older than 300 days. More bad news came two days later, on May 13, when Reade tossed the claims of three women — including the original plaintiff Monika Starke — for failing to disclose the pending harassment suit in their personal bankruptcy filings.
The following month, she eliminated 15 more women for failing to report their harassment to CRST. A few weeks later, she dismissed another 11 because she found their harassment was not sufficiently severe or pervasive. Forty-two others were dismissed on two or more grounds.
At this point, the EEOC had 67 plaintiffs left. And then came the bombshell. On Aug. 13, Reade dismissed the claims of all the remaining plaintiffs because the EEOC did not investigate or attempt to conciliate their individual claims before filing suit.
The EEOC “wholly abdicated its role in the administrative process,” Reade wrote. “Although dozens of potentially meritorious sexual harassment claims may now never see the inside of a courtroom, to rule to the contrary would work a greater evil insofar as it would permit the EEOC to perfect an end-run” around Title VII’s presuit requirements.
It is this finding that’s at the heart of the Eighth Circuit appeal. The EEOC in its briefs stressed that it invited CRST to attempt to conciliate Monika Starke’s claim. However, Starke had hired her own attorneys, Jeffrey Tronvold and Matthew Reilly of Eells & Tronvold in Cedar Rapids, and CRST in an e-mail told the EEOC that “in light of the monetary demand made by Ms. Starke’s attorney…CRST does not wish to engage in conciliation efforts.”
The EEOC argued that “conciliation requires only that EEOC notify a respondent of the nature of the violation and how it could be remedied, which it did here.…EEOC had only one claim, the one it attempted to conciliate — that CRST failed to comply with Title VII’s mandate that it protect its employees from discrimination based on sex.” No other courts, the EEOC said, have required the agency to investigate and conciliate every individual claim before filing a class suit.
The Eighth Circuit didn’t buy it. The court noted that the EEOC didn’t interview any witnesses or subpoena any documents to determine if the allegations of the 67 women were true, and that none of them were identified until after the suit was filed. “The present record confirms that the EEOC wholly failed to satisfy its pre-suit obligations as to these 67 women,” wrote Judge Lavenski Smith, with a concurrence by Judge William Duane Benton.
The majority also upheld the lower court’s determination that the trainers were not supervisors because they lacked the power to hire or fire trainees — which meant CRST was not vicariously liable for the harassment.
One bright spot was that the court reinstated the EEOC’s claim on behalf of Monika Starke, which had been dismissed because she didn’t disclose the suit in a bankruptcy filing. The court also ruled that Reade wrongly dismissed the harassment claim of another woman as insufficiently severe.
With two plaintiffs back in the case, the $4.5 million award of attorney fees and costs was vacated — without prejudice — because CRST is no longer the prevailing defendant.
Judge Diana Murphy vigorously dissented from the key majority findings. “This ruling places unprecedented obligations on the EEOC and in effect rewards CRST for withholding information from the Commission,” she wrote. “Neither Title VII nor our prior cases require that the EEOC conduct its presuit obligations for each complainant individually when litigating a class claim.”
She also disagreed with the holding that the trainers were not supervisors, writing that the majority’s analysis “overlooked the practical reality created by the relationship.”
EEOC General Counsel Lopez is holding out hope for an en banc review. In its petition, EEOC flags two questions — what must the agency do before filing a class suit, and who is a supervisor — as “of exceptional importance.”
If the decision stands, Lopez said, it will be “a challenge” for the agency in the Eighth Circuit, if not beyond. “We currently have 100,000 charges filed every year,” he said. “We’re always trying to think of how we can best use government resources…and the requirement that we identify every individual during the investigation of systemic cases, the way it has been construed by some of our adversaries, will tax our resources.”
Some onlookers, though, are doubtful that, even if an en banc review is granted, the EEOC will come out on top. McDermott’s Doyle said bluntly that she thinks the EEOC “has no chance of getting a different outcome.”
“The logic of [the decision] is compelling,” added Akin Gump Strauss Hauer & Feld partner Donald Livingston, who served as general counsel of the EEOC during the George H.W. Bush administration. “I think it’s going to make sense to other judges as well.”
Jenna Greene can be contacted at firstname.lastname@example.org.