Equal Employment Opportunity Commission v. CRST Van Expedited Inc - See #453 to set additional brief deadlines

Filing 377

ORDER granting in part, denying as moot in part and denied in part 349 Motion in Limine (see text of Order for details). Signed by Chief Judge Linda R Reade on 1/28/2013. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

No. 07-CV-95-LRR

vs.

ORDER

CRST VAN EXPEDITED, INC.,
Defendant.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.

RELEVANT PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
Witnesses Not Identified in Disclosures, Including Frank Taylor . . . . 6
B.
Evidence Admissible Only Through an Expert . . . . . . . . . . . . . . . . 6
C.
Evidence of David Goodman’s Harassment.. . . . . . . . . . . . . . . . . . 7
D.
Statutory Damages Cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
E.
Monetary Damages on Behalf of Starke. . . . . . . . . . . . . . . . . . . . . 8
F.
Evidence or Argument Precluded by Prior Rulings.. . . . . . . . . . . . . 9
1.
Pattern or practice evidence. . . . . . . . . . . . . . . . . . . . . . . 10
2.
Lead Drivers as supervisors. . . . . . . . . . . . . . . . . . . . . . . 11
3.
CRST’s response to reported harassment. . . . . . . . . . . . . . . 11
G.
Insufficient, Inadequate or Deficient Sexual Harassment Policies.. . 12
H.
Negligence in Assigning Smith as Starke’s Lead Driver.. . . . . . . . . 12
I.
Other Female Drivers’ Sexual Harassment Complaints and
CRST’s Responses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.
Elements of the claim. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.
Applicable law on admissibility. . . . . . . . . . . . . . . . . . . . . 14
a.
Credibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
b.
Punitive damages.. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.
Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
a.
Barbara Wallace. . . . . . . . . . . . . . . . . . . . . . . . . . 16

b.

c.

d.

e.

f.

g.

h.

i.

j.

k.

l.

m.

n.

i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Valerie Montoya. . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Wanda Hasbell. . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Angela Lesmeister. . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Mary Bender.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Joyce Toppin.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Diana Chester. . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Yvonne Fortner. . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Keirston Alleva. . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Jammie Scott. . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Ramona Villarreal. . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Cathy Shaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Tracye Traylor. . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
Doris Tiberio.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
2

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25
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27
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30
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35
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40
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J.
K.
L.
M.
N.
IV.

i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
o.
Veronica Mora. . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Credibility of Monika Starke. . . . . . . . . . . . . .
ii.
Punitive damages. . . . . . . . . . . . . . . . . . . . .
5.
Evidence in relation to employer’s motive. . . . . . . . . . . . . .
6.
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Smith’s Disciplinary and Safety Records. . . . . . . . . . . . . . . . . . .
CRST’s Net Worth and Finances. . . . . . . . . . . . . . . . . . . . . . . .
CRST’s Failure to Call Witnesses. . . . . . . . . . . . . . . . . . . . . . . .
Comparisons with Other EEOC Cases. . . . . . . . . . . . . . . . . . . . .
Lie Detector Tests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41
42
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45
45
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46
46

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
I. INTRODUCTION
The matter before the court is Defendant CRST Van Expedited, Inc.’s (“CRST”)

“Motion in Limine” (“Motion”) (docket no. 349).
II. RELEVANT PROCEDURAL HISTORY
On May 10, 2012, the Eighth Circuit Court of Appeals issued an Opinion (“Eighth
Circuit Opinion”) (docket no. 339), affirming in part and denying in part Plaintiff Equal
Employment Opportunity Commission’s (“EEOC”) appeal of several summary judgment
orders that had disposed of the instant action.1 See EEOC v. CRST Van Expedited, Inc.,
679 F.3d 657 (8th Cir. 2012). The Eighth Circuit remanded the case to the court for
further proceedings regarding the EEOC’s claims on behalf of Monika Starke and Tillie
Jones. See id. The EEOC subsequently withdrew its claim on behalf of Tillie Jones. See
Notice (docket no. 360). A jury trial was set to commence on October 16, 2012. The
issue for trial is whether or not a former CRST trainee truck driver, Monika Starke, was
subjected to hostile work environment sexual harassment by Bobb Smith, a male Lead
1

The Eighth Circuit Opinion includes a detailed procedural history and factual
background of the case leading up to the EEOC’s appeal. See Eighth Circuit Opinion at
2-14.
3

Driver with whom she drove from July 8-15, 2005, in violation of Title VII of the Civil
Rights Act of 1964.
On October 3, 2012, CRST filed the Motion. On October 9, 2012, the EEOC filed
a Resistance (docket no. 356). On October 10, 2012, the undersigned held a Final Pretrial
Conference (“FPTC”). See Hearing Minutes (docket no. 357). Attorneys Jean Kamp,
Nicholas Pladson, Ann Henry and Jeanne Szromba represented the EEOC at the FPTC,
and James Malysiak, John Mathias, Kevin Visser and Sally Coder represented CRST. At
the FPTC, the parties presented oral argument regarding the Motion. At the conclusion
of the hearing, the undersigned determined that further briefing was needed regarding the
Motion, and the trial was continued, see October 10, 2012 Order (docket no. 359).
Pursuant to the court’s October 18, 2012 Order (docket no. 362), the parties
provided the court with supplemental briefs regarding the Motion. On October 26, 2012,
the EEOC filed a “Supplemental Resistance” (docket no. 363). On November 12, 2012,
CRST filed a “Supplemental Brief in Support” (docket no. 368). On November 20, 2012,
the EEOC filed a “Reply in Support of its Supplemental Resistance” (docket no. 372).
The matter is fully submitted and ready for decision.
III. ANALYSIS
In the Motion, CRST asks the court to: (1) bar the EEOC from presenting witnesses
not identified in the EEOC’s disclosures, including Frank Taylor; (2) bar the EEOC from
presenting any evidence that would be admissible only through an expert because the
EEOC has not identified any experts; (3) bar the EEOC from presenting damages evidence
relating to alleged sexual harassment by any individual other than Bobb Smith;
(4) determine that the EEOC’s damages claim is subject to a statutory cap of $300,000;
(5) bar the EEOC from seeking monetary damages on behalf of Starke based on the court’s
prior rulings; (6) bar the EEOC from introducing evidence or argument inconsistent with
the court’s prior orders and the Eighth Circuit Opinion, specifically evidence or argument

4

inconsistent with the court’s ruling on the EEOC’s pattern or practice claim, the court’s
ruling that Lead Drivers are not supervisors and the court’s decisions regarding female
drivers’ failure to report alleged harassment and/or CRST’s prompt and effective response
to reported harassment; (7) bar the EEOC from arguing that CRST’s sexual harassment
policy and training program are insufficient, inadequate or deficient; (8) bar the EEOC
from arguing that CRST was negligent in assigning Smith as Starke’s Lead Driver; (9) bar
the EEOC from introducing evidence or arguing about irrelevant allegations and claims,
specifically evidence regarding reports of alleged sexual harassment by other female
drivers and CRST’s positive environment chart and making any reference to or argument
about the chart; (10) bar the EEOC from introducing Smith’s unrelated disciplinary and
safety records; (11) exclude evidence of CRST’s net worth and finances, at least until
punitive damages are relevant; (12) bar the EEOC from referring to CRST’s failure to call
or produce witnesses not under CRST’s control; (13) bar the EEOC from comparing this
case to other cases brought by the EEOC; and (14) prohibit the EEOC from arguing or
suggesting that CRST should have required Smith or Starke to take lie detector tests.
In its Resistance, the EEOC argues: (1) the court should permit the EEOC to call
Frank Taylor; (2) CRST’s request to deny expert evidence is overbroad and vague; (3) the
parties reached an agreement regarding damages arising from the conduct of David
Goodman; (4) the court should deny CRST’s request because it is not a motion to limit
evidence, although the EEOC agrees that the statutory cap applies to its claim; (5) the
EEOC is not barred from seeking monetary damages on behalf of Starke because the
EEOC can recover victim-specific damages; (6) the court’s prior orders do not bar the
EEOC from arguing that CRST had inadequate or deficient policies or practices in the
instant action, the EEOC will not characterize CRST’s Lead Drivers as supervisors and
the court’s prior orders do not bar the EEOC from introducing evidence that CRST did not
provide a prompt and effective response to reported harassment; (7) the EEOC is not

5

barred from alleging that CRST’s sexual harassment policies, training and practices are
insufficient, inadequate or deficient; (8) CRST’s request to bar the EEOC from arguing
that CRST was negligent in assigning Smith as Starke’s driver is premature and overbroad,
and the EEOC states that it does not intend to assert a negligent hiring claim; (9) the
EEOC is permitted to introduce evidence of other female drivers’ sexual harassment
complaints and CRST’s inadequate responses because the evidence is relevant to the merits
of the EEOC’s claim and punitive damages; (10) the EEOC does not intend to offer
Smith’s disciplinary and safety records; (11) the EEOC agrees that it will not introduce
evidence of CRST’s net worth and finances until the court has determined that the EEOC
has met its burden to submit the question to the jury; (12) the court should deny CRST’s
request to bar the EEOC from commenting on CRST’s failure to call witnesses because
it will depend on the circumstances; (13) the EEOC will not compare this case to other
cases during the trial; and (14) the EEOC does not intend to argue or suggest that CRST
should have subjected employees to polygraph tests. The court will address each of
CRST’s numbered requests in turn.
A. Witnesses Not Identified in Disclosures, Including Frank Taylor
CRST argues that the court should bar the EEOC from calling Frank Taylor as a
witness under Federal Rules of Civil Procedure 26 and 37 because the EEOC did not
include Taylor in its initial disclosures. The EEOC argues that the court should allow it
to call Taylor because CRST was aware of Taylor and the case is different now than it was
when the EEOC brought the action in 2007. For the reasons stated at the FPTC, the court
shall allow the EEOC to call Taylor as a witness. Thus, the court shall deny the Motion
as to Paragraph 1. Additionally, CRST is permitted to take Taylor’s deposition before he
testifies at trial.
B. Evidence Admissible Only Through an Expert
CRST argues that the EEOC did not disclose any expert witnesses and, therefore,

6

the court should bar the EEOC from introducing any evidence that would be admissible
only through an expert. The EEOC argues that the court should deny CRST’s request
because it does not identify any specific documents or evidence that CRST wishes to
exclude. For the reasons stated at the FPTC, the court shall deny the Motion as to
Paragraph 2. If CRST wishes to object to any specific evidence, it may, of course, make
the proper objection during trial.
C. Evidence of David Goodman’s Harassment
CRST argues that the court should bar the EEOC from introducing evidence of
damages resulting from David Goodman’s harassment because the EEOC represented that
it would drop all claims arising from Goodman’s conduct. The EEOC states that the
parties have reached an agreement regarding evidence of damages arising from Goodman’s
conduct. Among other things, the parties agree that CRST will present limited evidence
that Starke drove with other drivers after Smith, including Goodman, and, if either party
“opens the door to evidence of Goodman’s conduct,” the other party may do so as well.
Exhibit G (docket no. 356) at 63-64. Thus, the court shall deny the Motion as to
Paragraph 3 as moot in light of the parties’ agreement.
D. Statutory Damages Cap
CRST argues that the EEOC’s claim is subject to a $300,000 statutory cap. The
EEOC first notes that CRST is not asking for a ruling on pretrial evidentiary matters. The
EEOC agrees that the cap applies but argues that the jury may award a higher amount than
the statutory cap even though the recovery will be limited to the statutory amount. At the
FPTC, the parties agreed that the EEOC can argue for the jury to award a higher amount
of damages than the statutory cap but the ultimate damages award will not exceed the
statutory cap. Thus, the court shall deny the Motion as to Paragraph 4 as moot in light of
the parties’ agreement.

7

E. Monetary Damages on Behalf of Starke
CRST argues that, because Starke is judicially estopped from bringing a sexual
harassment claim as an individual, the EEOC cannot seek monetary damages on behalf of
Starke. The EEOC argues that the Eighth Circuit Opinion clearly states that the EEOC
is allowed to seek victim-specific relief even though Starke cannot bring an individual
claim and, furthermore, the EEOC argues that such victim-specific relief includes
damages.
In EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Supreme Court of the
United States held that the EEOC can seek victim-specific relief on behalf of an individual
even where the individual cannot bring a claim on his or her own behalf. In Waffle House,
an employee signed an arbitration agreement with his employer that precluded him from
bringing a wrongful discharge action as an individual. Id. at 282-83. The Fourth Circuit
Court of Appeals held that the EEOC could only pursue injunctive relief on behalf of the
employee because the policies underlying the Federal Arbitration Act outweighed the
EEOC’s interest in pursuing victim-specific relief. Id. at 279. The Supreme Court
reversed, holding that the EEOC could pursue victim-specific relief, including damages,
on behalf of the employee even though the employee could not bring an individual action.
Id. In so holding, the Supreme Court stated that “it is the [EEOC’s] province—not that
of the court—to determine whether public resources should be committed to the recovery
of victim-specific relief,” id. at 291-92, and that, “whenever the EEOC chooses from
among the many charges filed each year to bring an enforcement action in a particular
case, the agency may be seeking to vindicate a public interest, not simply provide makewhole relief for the employee, even when it pursues entirely victim-specific relief,” id. at
296.
Thus, “[u]nder Waffle House a court cannot judicially estop the EEOC from
bringing suit in its own name to remedy employment discrimination simply because the

8

defendant-employer happened to discriminate against an employee who, herself, was
properly judicially estopped.” CRST Van Expedited, Inc., 679 F.3d at 682; see also
EEOC v. Sidley Austin LLP, 437 F.3d 695, 696 (7th Cir. 2006) (holding that the EEOC
could obtain monetary relief on behalf of individuals whose individual suits were timebarred because the EEOC’s “enforcement authority is not derivative of the legal rights of
individuals even when it is seeking to make them whole”). Thus, the EEOC may seek
victim-specific relief, including damages, on behalf of Starke. CRST does not cite, and
the court is not aware of, any case law stating that the EEOC cannot give any damages it
receives to a judicially-estopped victim, and the cases CRST cites were either decided
before Waffle House or are factually distinguishable from the instant action.
CRST points to the Supreme Court’s statement in Waffle House that “[the victim’s]
conduct may have the effect of limiting the relief that the EEOC may obtain in court.”
Waffle House, 534 U.S. at 296. CRST argues that Starke’s fraudulent conduct is the type
of conduct that limits the EEOC’s ability to obtain relief in the form of damages.
However, the conduct the Supreme Court referenced includes defenses such as failure to
mitigate damages or acceptance of a settlement that would reduce a damages amount under
a specific claim. See id. There is no support for CRST’s assertion that Starke’s fraudulent
conduct bars the EEOC from bringing a suit in its own name on behalf of Starke and
seeking victim-specific relief, including damages. Cf. Sidley Austin LLP, 437 F.3d at 696
(rejecting the defendant’s argument that failure to timely file an individual claim was the
type of conduct that would limit the relief that the EEOC could obtain from the court).
Thus, the court shall deny the Motion as to Paragraph 5.
F. Evidence or Argument Precluded by Prior Rulings
CRST argues that the court should bar the EEOC from presenting evidence or
making any argument that is inconsistent with prior rulings in this case, specifically: (1)
evidence regarding the EEOC’s pattern or practice claim; (2) evidence or argument that

9

Lead Drivers are not supervisors; and (3) evidence or argument relating to the consequence
of a female driver’s failure to report alleged harassment and/or CRST’s prompt and
effective response to reported harassment.
In response, the EEOC argues that: (1) prior rulings in this case do not bar the
EEOC from arguing that CRST’s policies or practices were deficient in this case; (2) it
does not intend to characterize CRST’s Lead Drivers as supervisors; and (3) prior rulings
in this case do not bar the EEOC from introducing evidence regarding CRST’s response
to Starke’s reported harassment.
1.

Pattern or practice evidence

CRST argues that the court should bar the EEOC from introducing evidence that
is inconsistent with the court’s April 30, 2009 Order (docket no. 197), in which the court
dismissed the EEOC’s pattern or practice claim against CRST. April 30, 2009 Order at
67. The EEOC argues that the court’s April 30, 2009 Order does not prevent the EEOC
from presenting evidence that CRST’s response to Starke’s harassment complaint was
inadequate. The EEOC further argues that the court’s April 30, 2009 Order does not bar
it from presenting evidence of CRST’s response to other similarly situated women for the
purpose of establishing that CRST’s response to Starke’s complaint was inadequate.
The court agrees with the EEOC that the court’s April 30, 2009 Order does not
prevent the EEOC from arguing that CRST’s response to Starke’s individual harassment
complaint was inadequate or deficient. As the court has noted, nothing in the April 30,
2009 Order “should be construed as a final ruling on the individual claims of sexual
harassment” brought by the EEOC. Id. Thus, to the extent CRST wishes to exclude
evidence that its response to Starke’s complaint was inadequate or deficient, the court shall
deny the Motion as to Paragraph 6(a). The court will address the admissibility of the
testimony of other similarly situated women in Section III(I).

10

2.

Lead Drivers as supervisors

The EEOC states in its Resistance that it does not intend to argue that CRST Lead
Drivers are supervisors. Thus, the court shall grant the Motion as to Paragraph 6(b).
3.

CRST’s response to reported harassment

CRST argues that the court should bar the EEOC from introducing evidence or
making any argument inconsistent with the court’s June 18, 2009 Order (docket no. 251),
in which the court held that, for an employer to be held liable for sexual harassment by a
non-supervisory co-worker, a plaintiff must prove that “her employer knew or should have
known of the harassment and failed to take prompt and effective remedial action.” June
18, 2009 Order at 4 (quoting Austin v. Minn. Mining & Mfg. Co., 193 F.3d 992, 993 (8th
Cir. 1999)). CRST argues that the “EEOC should be barred from introducing evidence
or argument inconsistent with the [c]ourt’s ruling that ‘CRST may not be held liable for
sexual harassment it could not stop and that had already ended by the time it was made
aware of it.’” Motion at 10 (quoting June 18, 2009 Order at 7).
The EEOC argues that CRST is essentially “seeking a directed verdict on its
liability before the trial begins” by attempting to bar the EEOC’s evidence regarding
whether CRST knew of Starke’s harassment and responded appropriately. Resistance at
12. The EEOC further acknowledges that it will have to prove at trial that CRST knew
or should have known of Starke’s harassment and failed to take prompt and effective
remedial action.
The court agrees with the EEOC. Nothing in the court’s June 18, 2009 Order
prevents the EEOC from presenting evidence regarding CRST’s knowledge of Starke’s
harassment and response to that harassment. The court’s statement that CRST could not
be held liable for harassment that it could not stop and that had already ended was in
reference to the claims of eleven women. The court dismissed those claims in the June 18,
2009 Order for lack of evidence that CRST knew or had reason to know of the alleged

11

sexual harassment. However, the court finds that the question of whether CRST knew or
should have known about Starke’s harassment and responded appropriately is for the jury
to decide. Therefore, the EEOC is permitted to present evidence relating to CRST’s
knowledge of Starke’s harassment and response to the harassment. Thus, the court shall
deny the Motion as to Paragraph 6(c).
G. Insufficient, Inadequate or Deficient Sexual Harassment Policies
CRST argues that the court should bar the EEOC from presenting evidence at trial
that CRST’s “policies, training, or practices are insufficient, inadequate or deficient,”
Motion at 10, because the court rejected the EEOC’s pattern or practice claim in its April
30, 2009 Order. CRST further argues that “[e]vidence and argument should be limited
to the individualized facts and legal issues relevant to [Starke’s] claim.” Motion at 11.
The EEOC argues that evidence that CRST did not act promptly after receiving
Starke’s complaint is admissible to prove that CRST failed to take prompt remedial action
in Starke’s individual case. The EEOC states that it intends to present testimony of other
women who were subjected to offensive conduct and told by dispatchers to remain on their
trucks.
The court finds that the EEOC may present evidence regarding CRST’s response
to Starke’s harassment, but the EEOC may not present evidence or argument that is
inconsistent with the court’s finding that CRST did not have a pattern or practice of
tolerating sexual harassment. Thus, to the extent CRST wishes to exclude evidence that
its response to Starke’s complaint was inadequate or deficient, the court shall deny the
Motion as to Paragraph 7. The court will address the admissibility of the testimony of
other similarly situated women in Section III(I).
H. Negligence in Assigning Smith as Starke’s Lead Driver
CRST argues that the court should not allow the EEOC to argue at trial that CRST
was negligent in assigning Smith as Starke’s Lead Driver because there is no evidence that

12

CRST had any reason to believe that Smith would harass female drivers. The EEOC
argues that CRST’s request is overbroad and does not specify what evidence it seeks to
exclude. The EEOC states that it does not intend to assert a negligent hiring claim but will
argue that CRST should have stopped Starke from riding with Smith.
The court agrees that CRST’s request is overbroad. Thus, the court shall deny the
Motion as to Paragraph 8. CRST may, of course, object at trial to any evidence it believes
is inadmissible.
I. Other Female Drivers’ Sexual Harassment Complaints and CRST’s Responses
1.

Elements of the claim

In order for the EEOC to prevail on its claim of hostile environment sexual
harassment, the EEOC must prove the following elements by a preponderance of the
evidence: (1) Monika Starke was subjected to sexually offensive conduct or conditions
imposed by her male trainer at CRST, Bobb Smith; (2) such conduct was unwelcome;
(3) Bobb Smith’s conduct was based on Monika Starke’s sex; (4) such conduct was
sufficiently severe or pervasive that a reasonable person in Monika Starke’s position would
have found the work environment to be hostile or abusive; (5) at the time that such conduct
occurred, and as a result of such conduct, Monika Starke subjectively believed her work
environment to be hostile or abusive; (6) CRST knew or should have known of the
offensive conduct; and (7) CRST failed, after receiving sufficient notice of possible sexual
harassment, to take proper remedial or corrective action to end the hostile environment
sexual harassment. See Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.
2010); Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1194-95 (8th Cir. 2006).
The defense is that Monika Starke did not call the dispatcher to report sexual harassment
by Bobb Smith or that CRST did not fail to take proper remedial or corrective action after
receiving Starke’s sexual harassment claim. Supplemental Brief in Support at 1-3.

13

2.

Parties’ arguments

The EEOC seeks to introduce testimony from fifteen other past or current female
drivers concerning their sexual harassment by Lead Drivers and the reaction of their
dispatchers to the same. The EEOC argues that this evidence is relevant (1) to lend
credibility to Monika Starke’s claim that she reported the harassment to dispatchers and
the dispatchers told her to stay on the truck; and (2) to the determination of punitive
damages.
CRST argues that evidence from these fifteen other witnesses is not relevant to the
merits of Starke’s claim that she reported the harassment to her dispatcher and was told
to stay on the truck or the issue of punitive damages because none of the fifteen witnesses
were harassed by the same driver or spoke to the same dispatchers as Starke and several
of the witnesses’ harassment occurred long after Starke was allegedly harassed. CRST
further argues that such evidence would unfairly prejudice CRST, confuse the issues for
the jury and result in extensive time spent on collateral issues regarding the truth of the
witnesses’ allegations.
3.

Applicable law on admissibility of evidence

In order to be admissible, evidence must be relevant. The test for relevance is
stated in Federal Rule of Evidence 401: “Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Id. Even if evidence is relevant, it may be
excluded “if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
a.

Fed. R. Evid. 403.

Credibility

“Evidence of harassment of nonparties can be probative in a hostile work
environment case, because it can bolster the plaintiff’s credibility . . . .” Bennett v. Nucor

14

Corp., 656 F.3d 802, 813 (8th Cir. 2011). “Whether this probative value is substantially
outweighed by unfair prejudice is a fact-intensive question that must be answered by the
district court . . . .” Id.
b.

Punitive damages

“Evidence of harassment of nonparties can be probative in a hostile work
environment case, because it can . . . assist the jury . . . as it determines the
appropriateness of punitive damages.” Id. “An incident that is recidivistic can be
punished more harshly than an isolated incident.” Williams v. ConAgra Poultry Co., 378
F.3d 790, 797 (8th Cir. 2004).

“The dominant consideration for assessing the

constitutionality of a punitive damages award is the reprehensibility of the defendant’s
conduct.” Id. at 796. “In assessing reprehensibility . . . it is crucial that a court focus on
the conduct related to the plaintiff’s claim rather than the conduct of the defendant in
general.” Id. at 797.
If a jury fails to confine its deliberations with respect to
punitive damages to the specific harm suffered by the plaintiff
and instead focuses on the conduct of the defendant in general,
it may award exemplary damages for conduct that could be the
subject of an independent lawsuit, resulting in a duplicative
punitive damages award.
Id. “‘[E]vidence of other acts need not be identical to have relevance in the calculation
of punitive damages,’ but the conduct must be closely related.” Id. (alteration in original)
(internal citation omitted) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 423 (2003)).
4.

Analysis

Starke rode with her trainer, Bobb Smith, from July 8, 2005, until July 15, 2005.
Starke alleges that Smith sexually harassed her by making sexually graphic comments.
Starke further alleges that, on July 14, 2005, she called her dispatcher to complain about

15

the harassment and asked to be assigned to a different truck, and the dispatcher2 told Starke
to stay on the truck and deliver the load. Starke claims that, when she called dispatch
again later that night, the dispatcher told her that it was too late for him to do anything
about her situation and advised her to call back the next day. According to Starke, the
following morning she again called dispatch and was removed from the truck.
As discussed in more detail below, the court finds that the proffered evidence of the
fifteen other female drivers is not relevant on the issue of whether Monika Starke reported
to her dispatcher sexual harassment by her Lead Driver, Bobb Smith, and was told to stay
on the truck nor on the issue of punitive damages. The court shall discuss each witness’s
testimony in turn.
a.

Barbara Wallace

Barbara Wallace drove with her trainer, Michael Conley, from April 7, 2005, to
April 15, 2005. Wallace is expected to testify that Conley sexually harassed Wallace by
brushing his body against hers. Wallace claims that she subsequently called a dispatcher
and asked to be removed from the truck. The dispatcher allegedly told Wallace that CRST
would get the truck to a terminal where Wallace could get away from Conley safely and
that someone would get back to her during normal business hours. Wallace claims that she
left a message for a supervisor the next day and subsequently called almost daily asking
to speak to a supervisor but was never able to do so. The dispatcher allegedly also did not
route Wallace to a terminal. Wallace claims that, when Conley further harassed her, a
weekend dispatcher told her to wait until Monday to get off the truck and that if she left
the truck that day it would be considered an abandoned load.

2

Starke does not identify the names of the dispatchers that she spoke to on July 14,
2005. CRST states that it intends to call the dispatchers that were on duty during the time
period that Starke claims she called dispatch as witnesses during trial. The dispatchers,
also referred to as fleet managers, that CRST identifies in its witness list are Kiley
Raychelle, Tony Morella and Chris Sullivan.
16

i.

Credibility of Monika Starke

The court finds that Wallace’s testimony is irrelevant under Rule 401. See Fed. R.
Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.”). Wallace rode with a different driver than Starke, was harassed
in a different manner than Starke and spoke to a different dispatcher than Starke. The
court has previously noted that “CRST does not operate a unified workplace” and that
CRST “workplaces are largely the cabs of hundreds upon hundreds of semi-truck
tractors.” EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 957 (N.D. Iowa
2009). Thus, Wallace’s experience with a different trainer on a different truck and
communication with different dispatchers bears no relevance to Starke’s harassment claim.
See Bennett, 656 F.3d at 810 (assessing the admissibility of evidence of harassment of
nonparties by determining “whether it’s the same place, the same time, the same decision
makers, or whether it’s such that the people who are making the decisions reasonably
should have known about the hostile environment”); McPheeters v. Black & Veatch Corp.,
427 F.3d 1095, 1102 (8th Cir. 2005) (affirming a district court’s exclusion of evidence of
other complaints of discrimination because the evidence did not indicate “what
decisionmakers or departments were involved in those complaints, and thus, the other
complaints were not shown to bear a connection to the employees allegedly involved in
discriminating against [the plaintiff]”); Callanan, 75 F.3d at 1298 (affirming a district
court’s exclusion of evidence of other alleged acts of discrimination in part because the
witnesses’ testimony did not involve the plaintiff’s supervisors); Estes, 856 F.2d at 1104
(noting that the probative value of a company’s treatment of customers to its treatment of
employees would likely be lower if the “employees allegedly responsible for the
discrimination against customers were unconnected with the employees who allegedly fired
[the plaintiff]”). Accordingly, the court finds that Wallace’s testimony is inadmissible

17

under Federal Rule of Evidence 402. Fed. R. Evid. 402 (“Irrelevant evidence is not
admissible.”).
Furthermore, the court finds that, even if Wallace’s testimony is relevant, any
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice, confusion of the issues for the jury and undue delay under Rule 403. See Fed.
R. Evid. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”). The court has already dismissed the EEOC’s pattern
or practice claim against CRST. See April 30, 2009 Order. If the court were to admit
Wallace’s testimony, the jury might hold CRST responsible for Wallace’s sexual
harassment claim that is not in issue in the instant action. See Jones v. Ark. Game & Fish
Comm’n, 237 F. App’x 119, 122 (8th Cir. 2007) (affirming a district court’s exclusion of
evidence of a commission employee’s racially discriminatory statements made outside of
the plaintiff’s region and statements within the general community because the vague,
isolated incidents that occurred over an imprecise time frame and did not involve the
plaintiff’s workplace or any decisions regarding the plaintiff were of little probative value
and any probative value was “substantially outweighed by the danger of unfair prejudice
and confusion of the issues likely to result from the vagueness of the proffered evidence
and the lack of its connection to [the plaintiff] or his supervisors”). Additionally, if the
court were to admit Wallace’s testimony, CRST would likely present witnesses and
evidence to challenge the veracity of Wallace’s testimony, which would pose a significant
danger of confusing the issues for the jury, prolonging the instant trial and resulting in a
separate trial within a trial. See Chism v. CNH Am. LLC, 638 F.3d 637, 642 (8th Cir.
2011) (“The district court . . . may consider and choose to avoid a trial within a trial for
each previous incident, because the parties may seek to establish the similarities or lack

18

of similarities and contest the culpability for each incident.”); EEOC v. UMB Bank Fin.
Corp., 558 F.3d 784, 794 (8th Cir. 2009) (affirming a district court’s decision to exclude
evidence of another employee’s pending allegations of discrimination because “the
evidence consisted of little more than allegations with limited probative value and because
it would have required extensive examination of wholly collateral issues regarding not only
the specifics of [the nonparty] allegations, but also the truth and merits of those
allegations”).
ii.

Punitive damages

Finally, the court finds that Wallace’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Wallace’s testimony to the issue of
punitive damages is low because Wallace’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Wallace was not
driving with the same driver as Starke and did not speak to the same CRST dispatchers as
Starke. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 424 (holding that the state court
erred in admitting evidence relating to claims that were not similar to the plaintiff’s claim
and stating that “[t]he reprehensibility guidepost does not permit courts to expand the scope
of the case so that a defendant may be punished for any malfeasance”); cf. Kimzey v. WalMart Stores, Inc., 107 F.3d 568, 575-76 (8th Cir. 1997) (affirming the district court’s
admission of evidence that the plaintiff’s supervisor and store manager had harassed other
women as relevant to determining punitive damages). Furthermore, any probative value
of the evidence is outweighed by the potential for unfair prejudice because the jury may
be inclined to punish CRST for harms to Wallace that are not in issue in the instant action.
See Philip Morris USA v. Williams, 549 U.S. 346, 357 (2007) (holding that a jury may not
punish a defendant for harm caused to individuals other than the plaintiff and that courts
must protect the defendant against any significant risk that a jury will punish the defendant
for causing harm to nonparties as opposed to considering such evidence to determine

19

reprehensibility); Stogsdill v. Healthmark Partners, LLC, 377 F.3d 827, 834 (8th Cir.
2004) (finding that the jury may have based its punitive damages award on evidence that
was not related to the conduct that harmed the plaintiff and reducing the punitive damages
award). Thus, the court shall exclude the testimony of Barbara Wallace.
b.

Valerie Montoya

Valerie Montoya drove with her co-driver, Zai Adams, from about April 19, 2005,
to April 25, 2005. Montoya is expected to testify that Adams propositioned her for sex
and physically assaulted her.

Montoya claims she called her dispatcher, Michael

Wuestenberg, late on April 21 or early on April 22, 2005, to report Adams’s behavior.
According to Montoya, Wuestenberg told her to “hang in there.” EEOC’s Supplemental
Resistance at 3. Allegedly, Adams then physically assaulted Montoya again on April 23,
2005, and the sheriff’s department helped Montoya get off the truck.
i.

Credibility of Monika Starke

The court finds that Montoya’s testimony is irrelevant under Rule 401. Montoya
rode with a different driver, experienced different conduct and spoke to a different
dispatcher than Starke.

Thus, Montoya’s experiences have no relevance to the

circumstances underlying Starke’s claim. See Bennett, 656 F.3d at 810; McPheeters, 427
F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104. Accordingly, the court
finds that Montoya’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Montoya’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Montoya’s testimony, the jury might hold CRST responsible for Montoya’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
The danger of unfair prejudice is particularly high given the severity of the conduct that
Montoya allegedly experienced. Additionally, if the court were to admit Montoya’s

20

testimony, CRST would likely present witnesses and evidence to challenge the veracity of
Montoya’s testimony, which would pose a significant danger of confusing the issues for
the jury, prolonging the instant trial and resulting in a separate trial within a trial. See
Chism, 638 F.3d at 642; UMB Bank Fin. Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Montoya’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Montoya’s testimony to the issue of
punitive damages is low because Montoya’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Montoya was not
driving with the same driver as Starke and did not speak to the same CRST dispatchers.
See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Montoya that are
not in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377
F.3d at 832. Thus, the court shall exclude the testimony of Valerie Montoya.
c.

Wanda Hasbell

Wanda Hasbell drove with her trainer, Wesley Hess,3 from May 7, 2005, until May
16, 2005. Hasbell is expected to testify that Hess made sexually explicit remarks to her
and propositioned her for sex. Hasbell allegedly called CRST’s 1-800 number to report
Hess’s behavior. According to Hasbell, the CRST representative that answered Hasbell’s
call told Hasbell that she needed to get back on the truck and that the only way the
representative could get Hasbell home would be to take a load through Texas and then drop
Hasbell off in Oklahoma. Hasbell claims that she refused to get back on the truck,
although she told the CRST representative that she was not in any immediate danger, and

3

Hasbell could not remember her trainer’s name, but CRST records show it was

Hess.
21

Hasbell’s friend paid for Hasbell to take a bus home to Oklahoma.
i.

Credibility of Monika Starke

The court finds that Hasbell’s testimony is irrelevant under Rule 401. Hasbell rode
with a different driver than Starke. Additionally, instead of contacting her dispatcher,
Hasbell used CRST’s 1-800 number to report Hess’s conduct. Furthermore, the CRST
representative did not simply tell Hasbell to stay on the truck but, rather, gave her a route
home via her trucking route. Thus, Hasbell’s experiences have no relevance to the
circumstances underlying Starke’s claim. See Bennett, 656 F.3d at 810; McPheeters, 427
F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104. Accordingly, the court
finds that Hasbell’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Hasbell’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Hasbell’s testimony, the jury might hold CRST responsible for Hasbell’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Hasbell’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Hasbell’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Hasbell’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Hasbell’s testimony to the issue of
punitive damages is low because Hasbell’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Hasbell was not
driving with the same driver as Starke and did not speak to the same CRST employees or

22

report her harassment through the same channels. See State Farm Mut. Auto. Ins. Co.,
538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76. Furthermore, any probative value of
the evidence is outweighed by the potential for unfair prejudice because the jury may be
inclined to punish CRST for harms to Hasbell that are not in issue in the instant action.
See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377 F.3d at 832. Thus, the court shall
exclude the testimony of Wanda Hasbell.
d.

Angela Lesmeister

Angela Lesmeister drove for CRST from October 20, 2005, to December 1, 2005,
during which time she was allegedly harassed by two co-drivers, “Brad” and another codriver that Hasbell does not remember but the EEOC asserts may be Richard Stansell or
William Lopez. Lesmeister is expected to testify that, after Brad asked to sleep with
Lesmeister, Lesmeister sent a Qualcomm4 message to her dispatcher, whose name she does
not remember. According to Lesmeister, she called her dispatcher the next morning, and
the dispatcher said he was sorry that Brad harassed her but she would have to assume that
such situations would happen as long as she worked at CRST because she is good-looking.
The dispatcher allegedly asked Lesmeister if she had handled the situation and she told the
dispatcher that she would give Brad another try. Lesmeister claims that, when Brad tried
to get into bed with her again, Lesmeister sent her dispatcher a message saying that she
would not tolerate Brad’s behavior. According to Lesmeister, when her next co-driver
also tried to get into bed with her, her dispatcher suggested that she may be the one with

4

A Qualcomm is a device on all trucks that allows drivers to
communicate directly with fleet managers while the drivers are
on the road. Qualcomm messages are similar to emails but are
not private; the other driver on the truck may be able to read
them. They are also prone to system shut-downs and other
delays.

EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 944 (N.D. Iowa 2009).
23

the problem since he had received no other complaints about the two drivers. Lesmeister
claims that she then quit CRST and had a friend pick her up in Arizona.
i.

Credibility of Monika Starke

The court finds that Lesmeister’s testimony is irrelevant under Rule 401.
Lesmeister rode with different drivers than Starke and rode on a different truck than
Starke. Additionally, because Lesmeister could not recall her dispatcher’s name, the court
cannot conclude that Lesmeister communicated with the same dispatcher as Starke.
Finally, Lesmeister does not allege that her dispatcher told her to stay on the truck.
Responding to the dispatcher’s question about Brad, Lesmeister said she would give him
another try. Regarding the second co-driver, the dispatcher questioned the cause of the
complaint, but the description of Lesmeister’s anticipated testimony does not allege that
the dispatcher refused to help Lesmeister or ordered her to remain on the truck. Thus,
Lesmeister’s experiences have no relevance to the circumstances underlying Starke’s
claim. See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d
at 1298; Estes, 856 F.2d at 1104. Accordingly, the court finds that Lesmeister’s testimony
is inadmissible under Rule 402.
Furthermore, the court finds that, even if Lesmeister’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Lesmeister’s testimony, the jury might hold CRST responsible for Lesmeister’s
sexual harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x
at 122. Additionally, if the court were to admit Lesmeister’s testimony, CRST would
likely present witnesses and evidence to challenge the veracity of Lesmeister’s testimony,
which would pose a significant danger of confusing the issues for the jury, prolonging the
instant trial and resulting in a separate trial within a trial. See Chism, 638 F.3d at 642;
UMB Bank Fin. Corp., 558 F.3d at 794.

24

ii.

Punitive damages

The court finds that Lesmeister’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Lesmeister’s testimony to the issue
of punitive damages is low because Lesmeister’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Lesmeister was not
driving with the same driver or communicating with the same dispatcher as Starke and the
dispatcher did not respond to the complaint in the same way as Starke’s dispatchers. See
State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Lesmeister that
are not in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill,
377 F.3d at 832. Thus, the court shall exclude the testimony of Angela Lesmeister.
e.

Mary Bender

Mary Bender drove with Richard Booze from April 2007 until July 26, 2007.
Booze was an owner-operator/independent contractor for CRST. Bender is expected to
testify that, after Booze repeatedly touched her, she called the CRST Safety Department.
The Safety Department allegedly told Bender that, if she felt threatened, she should call
911, otherwise she should “just deal with it.” EEOC’s Supplemental Resistance at 6.
According to Bender, a few days later she reported Booze to her terminal manager, Alvin
Hoggard, who spoke to Lisa Laveck in Human Resources. Bender claims that Laveck
spoke with Bender and told her to speak with her dispatcher, Travis Butler, who would
help her get home. Butler allegedly told Bender that the best way to get Bender home
safely and to make sure Booze paid her would be for Bender to take a load to North
Carolina with Booze.
i.

Credibility of Monika Starke

The court finds that Bender’s testimony is irrelevant under Rule 401. Bender rode

25

with a different driver than Starke and rode on a different truck than Starke. Additionally,
the events about which Bender would testify happened approximately two years after the
events giving rise to Starke’s claim. Furthermore, Bender called the CRST Safety
Department instead of her dispatcher. When she eventually spoke to Butler, he did not
order her to stay on the truck and deliver the load. Instead, Butler offered Bender a way
to get home and receive her pay from Booze, who was an independent contractor. Thus,
Bender’s experiences have no relevance to Starke’s claims. See Bennett, 656 F.3d at 810;
McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104.
Accordingly, the court finds that Bender’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Bender’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Bender’s testimony, the jury might hold CRST responsible for Bender’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Bender’s testimony, CRST would likely present
witnesses or evidence to challenge the veracity of Bender’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Bender’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Bender’s testimony to the issue of punitive
damages is low because Bender’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Bender was not driving with the
same driver as Starke and did not initially report Booze’s conduct through her dispatcher.
Additionally, Bender’s dispatcher did not respond to the complaint in the same way as

26

Starke’s dispatchers and her harassment occurred approximately two years after Starke’s
harassment. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d
at 575-76. Furthermore, any probative value of the evidence is outweighed by the
potential for unfair prejudice because the jury may be inclined to punish CRST for harms
to Bender that are not in issue in the instant action. See Philip Morris USA, 549 U.S. at
357; Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the testimony of Mary
Bender.
f.

Joyce Toppin

Joyce Toppin drove with Earnest Wade from approximately April 19, 2007 until
May 1, 2007. Toppin is expected to testify that, around April 23 or 24, 2007, Wade
touched Toppin and asked her to shower with him. According to Toppin, she then
reported the harassment to her dispatcher, Michael Wuestenberg. Toppin claims that,
when she told Wuestenberg that she needed to get off the truck, Wuestenberg “told Toppin
to work something out and try to deliver the load.” EEOC’s Supplemental Resistance at
6. Wade allegedly continued to touch Toppin and make sexually explicit comments to her,
and Toppin again reported Wade to Wuestenberg. Toppin claims that she also spoke to
Andrew, Jeff and Tom, who she believes are dispatchers, and Lisa Laveck in Human
Resources. One of the dispatchers allegedly told Toppin that she could take a bus from
New York to the CRST terminal in Carlisle, Pennsylvania, or that CRST might pay for
her gas if she arranged for someone to pick her up and take her home. Laveck allegedly
suggested that Toppin get a recorder so that she would have proof of the harassment.
According to Toppin, CRST then paid for her to stay in a hotel where her friends later
picked her up.
i.

Credibility of Monika Starke

The court finds that Toppin’s testimony is irrelevant under Rule 401. Toppin rode
with a different driver than Starke, rode on a different truck than Starke and communicated

27

with different dispatchers than Starke. Additionally, the events about which Toppin would
testify happened nearly two years after the events giving rise to Starke’s claim. Thus,
Toppin’s experiences have no relevance to Starke’s claims. See Bennett, 656 F.3d at 810;
McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104.
Accordingly, the court finds that Toppin’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Toppin’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Toppin’s testimony, the jury might hold CRST responsible for Toppin’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Toppin’s testimony, CRST would likely present
witnesses or evidence to challenge the veracity of Toppin’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Toppin’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Toppin’s testimony to the issue of punitive
damages is low because Toppin’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Toppin was not driving with the
same driver as Starke, did not communicate with the same dispatcher as Starke and
Toppin’s harassment occurred nearly two years after Starke’s harassment. See State Farm
Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76. Furthermore, any
probative value of the evidence is outweighed by the potential for unfair prejudice because
the jury may be inclined to punish CRST for harms to Toppin that are not in issue in the
instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377 F.3d at 832. Thus,

28

the court shall exclude the testimony of Joyce Toppin.
g.

Diana Chester

Diana Chester trained with William Eldridge from May 13, 2007, through May 20,
2007. Chester is expected to testify that, after Eldridge made sexually explicit comments
to her, she called her husband, another CRST driver, on either May 15 or May 16, 2007.
Chester’s husband allegedly called his dispatcher, Sue Yorgensen, to report the sexual
harassment. According to Chester, Yorgensen then called her and told her that she would
talk to Chester’s dispatcher, Tony Bivens, and report the harassment to him. Chester
allegedly continued to speak to Yorgensen over the coming days, and Yorgensen told
Chester that Yorgensen would get Chester off the truck. Chester allegedly said that she
wanted to get off the truck right away, but Yorgensen told Chester that if she left the truck
immediately she would have no way to get home. Chester claims that she got off the truck
on May 20, 2007.
i.

Credibility of Monika Starke

The court finds that Chester’s testimony is irrelevant under Rule 401. Chester rode
with a different driver than Starke, rode on a different truck than Starke and communicated
with different dispatchers than Starke. Additionally, the events about which Chester would
testify happened approximately two years after the events giving rise to Starke’s claim.
Furthermore, Chester does not assert that either Yorgensen or Bivens ordered her to stay
on the truck and deliver a load. Instead, Yorgensen told Chester that she would remove
Chester from the truck and asked her if she could wait to get off the truck until the truck
arrived in Kansas City. Thus, Chester’s experiences have no relevance to Starke’s claims.
See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298;
Estes, 856 F.2d at 1104.

Accordingly, the court finds that Chester’s testimony is

inadmissible under Rule 402.
Furthermore, the court finds that, even if Chester’s testimony is relevant, the

29

probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Chester’s testimony, the jury might hold CRST responsible for Chester’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Chester’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Chester’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Chester’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Chester’s testimony to the issue of
punitive damages is low because Chester’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Chester was not
driving with the same driver as Starke and did not communicate with the same dispatchers
as Starke. Additionally, Chester’s dispatchers responded differently to her harassment
claims than Starke’s dispatchers and her harassment occurred approximately two years
after Starke’s harassment. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf.
Kimzey, 107 F.3d at 575-76. Furthermore, any probative value of the evidence is
outweighed by the potential for unfair prejudice because the jury may be inclined to punish
CRST for harms to Chester that are not in issue in the instant action. See Philip Morris
USA, 549 U.S. at 357; Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the
testimony of Diana Chester.
h.

Yvonne Fortner

Yvonne Fortner trained with Matt Allen from June 12, 2007, until June 23, 2007.
Fortner is expected to testify that Allen began harassing her on the first day she started

30

riding with him, and Fortner left a message for her dispatcher, Betty Naplin, reporting the
harassment. Naplin allegedly never responded to this initial complaint, and it took several
days for Fortner to speak to Naplin. According to Fortner, Naplin told her that, to get
another driver, Fortner would have to go home and it would take time to find another
driver.

Naplin allegedly suggested that Fortner simply put up with the situation.

According to Fortner, she then complained to Naplin’s supervisor. Fortner claims that,
before the supervisor took any action, Allen threw Fortner off the truck in Oklahoma.
i.

Credibility of Monika Starke

The court finds that Fortner’s testimony is irrelevant under Rule 401. Fortner rode
with a different driver than Starke, rode on a different truck than Starke and communicated
with a different dispatcher than Starke. Additionally, the events about which Fortner
would testify happened approximately two years after the events giving rise to Starke’s
claim. Furthermore, Fortner does not assert that Naplin ordered her to stay on the truck
and deliver a load. Instead, Naplin told Fortner that Fortner would have to go home to
wait for another driver and suggested that Fortner put up with the situation. Thus,
Fortner’s experiences have no relevance to Starke’s claims. See Bennett, 656 F.3d at 810;
McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104.
Accordingly, the court finds that Fortner’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Fortner’s testimony is admissible, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Fortner’s testimony, the jury might hold CRST responsible for Fortner’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Fortner’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Fortner’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and

31

resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Fortner’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Fortner’s testimony to the issue of
punitive damages is low because Fortner’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Fortner was not
driving with the same driver as Starke and did not communicate with the same dispatchers
as Starke. Additionally, Fortner’s dispatcher responded differently to her harassment
claim than Starke’s dispatchers and her harassment occurred approximately two years after
Starke’s harassment. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey,
107 F.3d at 575-76. Furthermore, any probative value of the evidence is outweighed by
the potential for unfair prejudice because the jury may be inclined to punish CRST for
harms to Fortner that are not in issue in the instant action. See Philip Morris USA, 549
U.S. at 357; Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the testimony of
Yvonne Fortner.
i.

Keirston Alleva

Keirston Alleva trained with Arthur Miles from August 20, 2007, through
September 18, 2007. Alleva is expected to testify that, after approximately one week of
Miles harassing her, Alleva called her dispatcher, Sue Yorgensen, to report the
harassment. Yorgensen allegedly told Alleva that she could not get another trainer for
Alleva and, since Alleva only had two and a half weeks of training left, Yorgensen advised
that Alleva “just stick it out.” EEOC’s Supplemental Resistance at 9.
i.

Credibility of Monika Starke

The court finds that Alleva’s testimony is irrelevant under Rule 401. Alleva rode
with a different driver than Starke, rode on a different truck than Starke and communicated

32

with a different dispatcher than Starke. Additionally, the events about which Alleva would
testify happened over two years after the events giving rise to Starke’s claim.
Furthermore, Alleva does not assert that Yorgensen ordered her to stay on the truck and
deliver a load. Instead, Yorgensen told Alleva that she could not get another trainer to
Alleva’s location and suggested that Alleva stick it out for the remaining two and a half
weeks of her training. Thus, Alleva’s experiences have no relevance to Starke’s claims.
See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298;
Estes, 856 F.2d at 1104.

Accordingly, the court finds that Alleva’s testimony is

inadmissible under Rule 402.
Furthermore, the court finds that, even if Alleva’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Alleva’s testimony, the jury might hold CRST responsible for Alleva’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Alleva’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Alleva’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Alleva’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Alleva’s testimony to the issue of punitive
damages is low because Alleva’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Alleva was not driving with the
same driver as Starke and did not communicate with the same dispatchers as Starke.
Additionally, Alleva’s dispatcher responded differently to her harassment claim than

33

Starke’s dispatchers and her harassment occurred over two years after Starke’s harassment.
See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Alleva that are
not in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377
F.3d at 832. Thus, the court shall exclude the testimony of Keirston Alleva.
j.

Jammie Scott

Jammie Scott rode with Mike Robertson from May 2005 through June 2005. Scott
is expected to testify that Robertson subjected her to unwanted touching, comments and
propositions. According to Scott, in early May 2005, she reported the harassment to her
dispatcher.5 The dispatcher allegedly told Scott that he would “handle it,” EEOC’s
Supplemental Resistance at 10, when they drove through Cedar Rapids, Iowa, and warned
her that quitting would result in a charge of stealing the truck. Scott claims that, at the
time, she was not near Cedar Rapids.
i.

Credibility of Monika Starke

The court finds that Scott’s testimony is irrelevant under Rule 401. Scott rode with
a different driver than Starke, rode on a different truck than Starke and communicated with
a different dispatcher than Starke. Additionally, Scott does not assert that her dispatcher
ordered her to stay on the truck and deliver a load. Instead, Scott’s dispatcher told her that
he would handle the situation when she got back to Cedar Rapids.
experiences have no relevance to Starke’s claims.

Thus, Scott’s

See Bennett, 656 F.3d at 810;

McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104.
Accordingly, the court finds that Scott’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Scott’s testimony is relevant, the probative

5

Scott could not recall her dispatcher’s name, but CRST’s records show that Scott
Nelson was Scott’s dispatcher.
34

value of the testimony is substantially outweighed by the danger of unfair prejudice and
confusion of the issues for the jury under Rule 403. If the court were to admit Scott’s
testimony, the jury might hold CRST responsible for Scott’s sexual harassment claim that
is not in issue in the instant action. See Jones, 237 F. App’x at 122. Additionally, if the
court were to admit Scott’s testimony, CRST would likely present witnesses and evidence
to challenge the veracity of Scott’s testimony, which would pose a significant danger of
confusing the issues for the jury, prolonging the instant trial and resulting in a separate
trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin. Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Scott’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Scott’s testimony to the issue of punitive
damages is low because Scott’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Scott was not driving with the
same driver as Starke, did not communicate with the same dispatcher as Starke and Scott’s
dispatcher responded differently to her harassment claim than Starke’s dispatchers. See
State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Scott that are not
in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377 F.3d
at 832. Thus, the court shall exclude the testimony of Jammie Scott.
k.

Ramona Villarreal

Ramona Villarreal drove with John DeJong from August 5, 2005, through August
25, 2005. Villarreal is expected to testify that DeJong made sexually explicit comments
to her and physically assaulted her.

According to Villarreal, when she called her

dispatcher, Pat, to report DeJong’s actions and asked to be removed from the truck, the
dispatcher stated that CRST would route her with someone else when she made it back to

35

the terminal. Villarreal claims that, after she was not routed to the terminal, Villarreal
called another dispatcher, Brian, who also told her to wait until she got back to the
terminal to be re-routed. DeJong then allegedly physically assaulted Villarreal. According
to Villarreal, CRST routed her to Puyallup, Washington, after she reported the physical
assault to another dispatcher.
i.

Credibility of Monika Starke

The court finds that Villarreal’s testimony is irrelevant under Rule 401. Villarreal
rode with a different driver than Starke, rode on a different truck than Starke and
communicated with different dispatchers than Starke. Additionally, Villarreal does not
assert that her dispatchers ordered her to stay on the truck and deliver the load. Instead,
Villarreal’s dispatchers told her that she would be re-routed with a different driver when
she returned to the terminal. Thus, Villarreal’s experiences have no relevance to Starke’s
claims. See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d
at 1298; Estes, 856 F.2d at 1104. Accordingly, the court finds that Villarreal’s testimony
is inadmissible under Rule 402.
Furthermore, the court finds that, even if Villarreal’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Villarreal’s testimony, the jury might hold CRST responsible for Villarreal’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
The danger of prejudice is heightened because of the severity of the harassment Villarreal
experienced. Additionally, if the court were to admit Villarreal’s testimony, CRST would
likely present witnesses and evidence to challenge the veracity of Villarreal’s testimony,
which would pose a significant danger of confusing the issues for the jury, prolonging the
instant trial and resulting in a separate trial within a trial. See Chism, 638 F.3d at 642;
UMB Bank Fin. Corp., 558 F.3d at 794.

36

ii.

Punitive damages

Finally, the court finds that Villarreal’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Villarreal’s testimony to the issue of
punitive damages is low because Villarreal’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Villarreal was not
driving with the same driver as Starke, did not communicate with the same dispatcher as
Starke and Villarreal’s dispatchers responded differently to her harassment claim than
Starke’s dispatchers. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey,
107 F.3d at 575-76. Furthermore, any probative value of the evidence is outweighed by
the potential for unfair prejudice because the jury may be inclined to punish CRST for
harms to Villarreal that are not in issue in the instant action. See Philip Morris USA, 549
U.S. at 357; Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the testimony of
Ramona Villarreal.
l.

Cathy Shaw

Cathy Shaw drove with her trainer, Larry Patterson, from February 17, 2006, until
March 2, 2006. Shaw is expected to testify that Patterson sexually harassed her during her
first night on the truck. She allegedly reported the harassment to her dispatcher, James
Hoover, who said he would take action to help Shaw but never did. According to Shaw,
after several follow-up attempts to contact Hoover, Hoover informed Shaw that she was
being assigned to a new dispatcher, Brian Brejcha. Shaw allegedly complained to Brejcha
on several occasions, but he did not take action to get Shaw off the truck. Shaw claims
that she eventually got off the truck when Patterson went on home time.
i.

Credibility of Monika Starke

The court finds that Shaw’s testimony is irrelevant under Rule 401. Shaw rode with
a different driver than Starke, rode on a different truck than Starke and communicated with
different dispatchers than Starke. Additionally, Shaw does not assert that her dispatchers

37

ordered her to stay on the truck and deliver the load. Instead, Shaw’s dispatchers told her
that they would assist her and subsequently failed to act. Thus, Shaw’s experiences have
no relevance to Starke’s claims. See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at
1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104. Accordingly, the court finds
that Shaw’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Shaw’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Shaw’s testimony, the jury might hold CRST responsible for Shaw’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
Additionally, if the court were to admit Shaw’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Shaw’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Shaw’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Shaw’s testimony to the issue of punitive
damages is low because Shaw’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Shaw was not driving with the
same driver as Starke, did not communicate with the same dispatcher as Starke and Shaw’s
dispatchers responded differently to her harassment claim than Starke’s dispatchers. See
State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Shaw that are not
in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377 F.3d

38

at 832. Thus, the court shall exclude the testimony of Cathy Shaw.
m.

Tracye Traylor

Tracye Traylor rode with Robert Yipe from August 3, 2006, through August 6,
2006. Traylor is expected to testify that Yipe showed her sexually explicit pictures and
exposed himself to her. According to Traylor, when she called her dispatcher, whose
name she could not remember, to report the harassment, the dispatcher told Traylor he
would get her off the truck, but he did not remove her from the truck on the day of the
report or the next day. Traylor claims that she also called CRST’s 1-800 number and
reported that dispatch had not taken her off the truck. Traylor was allegedly taken off the
truck three days after her initial complaint.
i.

Credibility of Monika Starke

The court finds that Traylor’s testimony is irrelevant under Rule 401. Traylor rode
with a different driver than Starke, rode on a different truck than Starke and communicated
with a different dispatcher than Starke. Additionally, Traylor’s harassment took place over
one year after the events giving rise to Starke’s harassment claim. Furthermore, Traylor
does not assert that her dispatcher ordered her to stay on the truck and deliver the load.
Instead, Traylor’s dispatcher told her that he would assist her and got her off the truck
three days later. Thus, Traylor’s experiences have no relevance to Starke’s claims. See
Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102; Callanan, 75 F.3d at 1298;
Estes, 856 F.2d at 1104.

Accordingly, the court finds that Traylor’s testimony is

inadmissible under Rule 402.
Furthermore, the court finds that, even if Traylor’s testimony is admissible, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Traylor’s testimony, the jury might hold CRST responsible for Traylor’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.

39

Additionally, if the court were to admit Traylor’s testimony, CRST would likely present
witnesses and evidence to challenge the veracity of Traylor’s testimony, which would pose
a significant danger of confusing the issues for the jury, prolonging the instant trial and
resulting in a separate trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin.
Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Traylor’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Traylor’s testimony to the issue of
punitive damages is low because Traylor’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Traylor was not
driving with the same driver as Starke and did not communicate with the same dispatcher
as Starke. Additionally, Traylor’s dispatcher responded differently to her harassment
claim than Starke’s dispatchers and she was harassed over one year after Starke was
harassed. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at
575-76. Furthermore, any probative value of the evidence is outweighed by the potential
for unfair prejudice because the jury may be inclined to punish CRST for harms to Traylor
that are not in issue in the instant action. See Philip Morris USA, 549 U.S. at 357;
Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the testimony of Tracye Traylor.
n.

Doris Tiberio

Doris Tiberio rode with Brian Heeney from May 11, 2007, through June 7, 2007.
Tiberio is expected to testify that, on approximately May 18, 2007, Heeney sexually
assaulted her. Tiberio allegedly reported the assault to her dispatcher, Lisa Seipel. Seipel
allegedly told Tiberio she would take care of the situation, but Seipel did not speak to
Tiberio again. Tiberio claims that she also reported the assault to the CRST safety
manager, but the safety manager subsequently forgot about the report. According to
Tiberio, she then drove with another driver, Daniel Kostner, who harassed her. Tiberio

40

allegedly called Heeney’s dispatcher, Bill McGuire, to report the harassment, and McGuire
said he would take care of it. McGuire allegedly did not take action in response to
Tiberio’s complaint.
i.

Credibility of Monika Starke

The court finds that Tiberio’s testimony has is irrelevant under Rule 401. Tiberio
rode with different drivers than Starke, rode on a different truck than Starke and
communicated with different dispatchers than Starke. Additionally, Tiberio’s sexual
assault took place approximately two years after the events giving rise to Starke’s
harassment claim. Furthermore, Tiberio does not assert that her dispatchers ordered her
to stay on the truck and deliver the load. Instead, Tiberio’s dispatchers told her that they
would assist her and failed to take action. Thus, Tiberio’s experiences have no relevance
to Starke’s claims. See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at 1102;
Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104. Accordingly, the court finds that
Tiberio’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Tiberio’s testimony is relevant, the
probative value of the testimony is substantially outweighed by the danger of unfair
prejudice and confusion of the issues for the jury under Rule 403. If the court were to
admit Tiberio’s testimony, the jury might hold CRST responsible for Tiberio’s sexual
harassment claim that is not in issue in the instant action. See Jones, 237 F. App’x at 122.
The risk of unfair prejudice is heightened because of the severity of the conduct Tiberio
experienced. Additionally, if the court were to admit Tiberio’s testimony, CRST would
likely present witnesses and evidence to challenge the veracity of Tiberio’s testimony,
which would pose a significant danger of confusing the issues for the jury, prolonging the
instant trial and resulting in a separate trial within a trial. See Chism, 638 F.3d at 642;
UMB Bank Fin. Corp., 558 F.3d at 794.

41

ii.

Punitive damages

The court finds that Tiberio’s testimony is not admissible to prove punitive
damages. The court finds that the probative value of Tiberio’s testimony to the issue of
punitive damages is low because Tiberio’s testimony is not sufficiently similar to the
conduct upon which Starke’s complaint is based. As discussed above, Tiberio was not
driving with the same driver as Starke and did not communicate with the same dispatchers
as Starke. Additionally, Tiberio’s dispatchers responded differently to her harassment
claim than Starke’s dispatchers and she was harassed approximately two years after Starke
was harassed. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d
at 575-76. Furthermore, any probative value of the evidence is outweighed by the
potential for unfair prejudice because the jury may be inclined to punish CRST for harms
to Tiberio that are not in issue in the instant action. See Philip Morris USA, 549 U.S. at
357; Stogsdill, 377 F.3d at 832. Thus, the court shall exclude the testimony of Doris
Tiberio.
o.

Veronica Mora

Veronica Mora trained with Gerard Blue from August 6, 2008, until August 23,
2008. Mora is expected to testify that, after Blue made sexually explicit comments to
Mora, she reported the harassment to her dispatcher, Lance Riley, sometime during the
week of August 8, 2008. Riley allegedly told Mora that there was nothing he could do
about Blue’s behavior and that it would take too long for him to get another trainer.
i.

Credibility of Monika Starke

The court finds that Mora’s testimony is irrelevant under Rule 401. Mora rode with
a different driver than Starke, rode on a different truck than Starke and communicated with
a different dispatcher than Starke. Additionally, Mora’s sexual harassment took place over
three years after the events giving rise to Starke’s harassment claim. Furthermore, Mora
does not assert that Riley ordered her to stay on the truck and deliver a load. Instead,

42

Riley told her that there was nothing he could do about Blue’s behavior and told her that
it would take a long time to get another trainer. Thus, Mora’s experiences have no
relevance to Starke’s claims. See Bennett, 656 F.3d at 810; McPheeters, 427 F.3d at
1102; Callanan, 75 F.3d at 1298; Estes, 856 F.2d at 1104. Accordingly, the court finds
that Mora’s testimony is inadmissible under Rule 402.
Furthermore, the court finds that, even if Mora’s testimony is relevant, the
probative value of the testimony is outweighed by the danger of unfair prejudice and
confusion of the issues for the jury under Rule 403. If the court were to admit Mora’s
testimony, the jury might hold CRST responsible for Mora’s sexual harassment claim that
is not in issue in the instant action. See Jones, 237 F. App’x at 122. Additionally, if the
court were to admit Mora’s testimony, CRST would likely present witnesses and evidence
to challenge the veracity of Mora’s testimony, which would pose a significant danger of
confusing the issues for the jury, prolonging the instant trial and resulting in a separate
trial within a trial. See Chism, 638 F.3d at 642; UMB Bank Fin. Corp., 558 F.3d at 794.
ii.

Punitive damages

The court finds that Mora’s testimony is not admissible to prove punitive damages.
The court finds that the probative value of Mora’s testimony to the issue of punitive
damages is low because Mora’s testimony is not sufficiently similar to the conduct upon
which Starke’s complaint is based. As discussed above, Mora was not driving with the
same driver as Starke and did not communicate with the same dispatcher as Starke.
Additionally, Mora’s dispatcher responded differently to her harassment claim than
Starke’s dispatchers and she was harassed over three years after Starke was harassed. See
State Farm Mut. Auto. Ins. Co., 538 U.S. at 432; cf. Kimzey, 107 F.3d at 575-76.
Furthermore, any probative value of the evidence is outweighed by the potential for unfair
prejudice because the jury may be inclined to punish CRST for harms to Mora that are not
in issue in the instant action. See Philip Morris USA, 549 U.S. at 357; Stogsdill, 377 F.3d

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at 832. Thus, the court shall exclude the testimony of Veronica Mora.
5.

Evidence in relation to employer’s motive

The EEOC argues that the fifteen witnesses’ testimony is admissible to bolster the
credibility of Starke’s testimony that her dispatchers told her to stay on the truck by
showing that CRST dispatchers told other women to stay on their trucks and deliver loads.
The EEOC relies on Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988),
overruled in part on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
and Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153 (8th Cir. 1990), in support of its
argument that evidence of an employer’s conduct toward similarly situated employees is
particularly relevant to discrimination cases because discriminatory intent is difficult to
prove without such evidence.
The instant action is distinguishable from Estes and Hawkins because the issue in
Estes and Hawkins was whether the employer had an improper motive. In this case, the
EEOC must prove that “CRST knew or should have known of the harassment, and that
CRST failed to take proper remedial action.” EEOC’s Supplemental Resistance at 15
(citing Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1123 (8th Cir. 2007)). CRST’s
motive is not in issue in the instant action. The fact the EEOC is attempting to establish
with the fifteen witnesses’ testimony is whether CRST dispatchers did, in fact, tell Starke
to stay on the truck and deliver her load, not whether the CRST dispatcher was acting with
a discriminatory or unlawful motive. See Berry v. Oswalt, 143 F.3d 1127, 1133 (8th Cir.
1998) (“The issue in [discrimination] cases . . . is motive . . . . The present case is
different. The primary question is whether [the defendant] did what [the plaintiff] claims
. . . , not his motive in doing so.”). Thus, the court finds that the circumstances
supporting admissibility in employment discrimination cases as outlined in Estes and
Hawkins are not present in the instant action case.

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6.

Summary

After thoroughly reviewing the testimony of each of the EEOC’s proposed
witnesses, determining whether each witness’s testimony is relevant and balancing the
probative value of each witness’s testimony with the danger of unfair prejudice and
confusion of the issues, the court finds that the EEOC may not introduce the testimony of
its fifteen proposed witnesses at trial. Thus, the court shall grant the Motion as to
Paragraph 9.
J. Smith’s Disciplinary and Safety Records
CRST argues that the court should bar evidence of Smith’s unrelated disciplinary
investigations and safety records because they are irrelevant and unfairly prejudicial. In
response, the EEOC states that it does not object to CRST’s request because it does not
intend to offer evidence of Smith’s unrelated disciplinary or safety records unless they
become relevant for impeachment purposes or CRST opens the door. Thus, the court shall
grant the Motion as to Paragraph 10.
K. CRST’s Net Worth and Finances
CRST argues that the court should exclude evidence of CRST’s net worth and
finances unless and until the EEOC establishes liability and presents sufficient evidence to
warrant a punitive damages instruction. In its response, the EEOC agrees that it will not
introduce evidence of CRST’s net worth and finances until the court determines that the
EEOC has met its burden to produce sufficient evidence to warrant submitting the question
of punitive damages to the jury. At the FPTC, the court and the parties discussed trial
management and court procedures regarding evidence relating to punitive damages. Thus,
the court shall grant the Motion as to Paragraph 11.
L. CRST’s Failure to Call Witnesses
CRST argues that the court should bar the EEOC from referring to CRST’s failure
to produce witnesses that are not within the court’s subpoena power or under CRST’s

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control, specifically Bobb Smith, because any adverse inference drawn from such failure
to call a witness would not be relevant, would be unfairly prejudicial to CRST and would
confuse or mislead the jury. The EEOC argues that it does not intend to comment to the
jury about CRST’s failure to call witnesses outside of its control. The EEOC argues,
however, that former employees that CRST has asserted to the EEOC that it represents and
has restricted the EEOC’s access to are under CRST’s control. As discussed at the FPTC,
because the EEOC agrees that it will not comment to the jury about CRST’s failure to call
witnesses outside of its control, the court shall grant the Motion as to Paragraph 12. If a
dispute arises as to whether specific witnesses are under CRST’s control, the parties may
object during trial.
M. Comparisons with Other EEOC Cases
CRST argues that the court should bar the EEOC from making statements that
compare the instant case to previous cases the EEOC has been involved in. In response,
the EEOC states that it does not intend to compare the instant case to other EEOC cases.
Thus, the court shall grant the Motion as to Paragraph 13.
N. Lie Detector Tests
CRST argues that the court should bar the EEOC from suggesting that CRST should
have required Starke and Smith to take lie detector tests because it is prohibited from
requiring, requesting, suggesting or causing any employee to take a lie detector test under
the Employee Polygraph Protection Act of 1988. In response, the EEOC states that it does
not intend to argue or suggest that CRST should have required Starke and Smith to take
lie detector tests. Thus, the court shall grant the Motion as to Paragraph 14.
IV. CONCLUSION
In light of the foregoing, CRST’s Motion in Limine (docket no. 349) is GRANTED
IN PART, DENIED AS MOOT IN PART and DENIED IN PART. The parties must
not directly or indirectly refer to or elicit answers from witnesses on the prohibited

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subjects. Each party is charged with the responsibility of cautioning its witnesses as to the
substance of this Order. If during the presentation of evidence a party believes that a
prohibited subject has become admissible, the party may request an opportunity to argue
admissibility outside the presence of the jury.
IT IS SO ORDERED.
DATED this 28th day of January, 2013.

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