Sellars et al v. CRST Expedited, Inc
Filing
301
MEMORANDUM OPINION AND ORDER granting 290 Renewed Motion for Summary Judgment on Plaintiffs' Classwide Retaliation Claim . Because this order disposes of all pending claims, judgment shall enter in favor of CRST and the Clerk of Court shall close this case. Signed by Chief Judge Leonard T Strand on 1/11/2023. (jag)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
SCHEAVELLA CORLEY, et al., on
behalf of themselves and all others
similarly situated,
Plaintiffs,
No. C15-117-LTS
vs.
MEMORANDUM OPINION AND
ORDER ON DEFENDANT’S
RENEWED MOTION FOR
SUMMARY JUDGMENT
CRST EXPEDITED, INC.,
Defendant.
________________
I.
INTRODUCTION
This matter is before me on a renewed motion (Doc. 290) for summary judgment
by defendant CRST Expedited, Inc. (CRST). Plaintiffs have filed a resistance (Doc. 295)
and CRST has filed a reply (Doc. 300). Oral argument is unnecessary. See Local Rule
7(c).
II.
BACKGROUND
On January 15, 2019, I granted CRST’s motion for summary judgment on
plaintiffs’ class-wide retaliation claim, finding that plaintiffs had not demonstrated a
genuine issue of material fact as to whether CRST maintained a policy, pattern or practice
after July 1, 2015,1 of not paying female drivers who were removed from their truck
following a complaint of sexual harassment, or paying them substantially less than they
would have made had they stayed on the truck. Doc. 204 at 32. Thus, plaintiffs had
1
The class was divided between members who were removed from their trucks prior to July 1,
2015 (pre-2015 members), when CRST adopted an HR layover pay policy, and those who were
removed after July 1, 2015 (post-2015 members).
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failed to show an adverse employment action.
With regard to the pre-2015 class
members, I determined that there was a genuine issue of material fact as to whether the
policy of requiring women who complained of sexual harassment to exit the truck and
receive no pay constituted a materially adverse employment action. Doc. 204 at 34-35.
However, I determined that the retaliation claim failed because plaintiffs had not put forth
sufficient evidence for a jury to infer that CRST’s articulated reasons for the policy were
false and that the real reason was retaliation. Doc. 204 at 41. Plaintiffs’ evidence
consisted of the possible alternative of removing the alleged harasser from the truck, the
temporal proximity to when the complaint was reported and evidence that CRST later
instituted its HR layover pay. Id. at 35-41. The individual plaintiffs’ claims relied on
the same evidence. As such, I granted summary judgment with respect to those claims
as well. Doc. 251 at 54-55.
On appeal, the Eighth Circuit affirmed summary judgment on the plaintiffs’
individual retaliation claims as well as the class retaliation claim for the pre-2015 class
members. Doc. 256 at 15. The court considered whether there was direct evidence of
retaliation based on presentation slides from CRST’s 2014 weekly HR employee relations
meeting in which a PowerPoint slide titled “Questions/Discussion Items” stated:
When drivers raise allegations of sexual or other issues of harassment, and
we remove them from the truck . . . why is it that the accused can stay on
earning money and the accuser gets stranded at a motel and loses money
every day and has to wait for a new co-driver . . . Punished for raising
concerns.
Id. at 13. The court concluded that this could not be considered a “comment by a
decisionmaker,” Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011)
(en banc), and – even if it could – it did not show a “specific link between a discriminatory
bias and the adverse employment action, sufficient to support a finding by a reasonable
fact-finder that the bias motivated the action.” Id. at 14 (quoting Torgerson, 643 F.3d at
1046). The court observed that the comment “questioned – rather than supported – the
2
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allegedly discriminatory policy, and thus it does not reflect any motivative discriminatory
bias on the decisionmaker’s part.” Id. The court then applied the McDonnell Douglas
burden-shifting framework to determine if plaintiffs raised an inference of retaliation. Id.
Plaintiffs argued that the PowerPoint slide’s characterization of the policy as
“punishment” and CRST’s knowledge of the unchanged removal policy was sufficient to
show pretext. The court disagreed and concluded plaintiffs failed to demonstrate a
genuine dispute that retaliatory intent likely motivated CRST. Id. at 15.
As to the post-2015 class members, CRST had changed its pay policy on July 1,
2015, such that sexual harassment complainants who were removed from trucks would
receive layover pay. CRST did not inform its employees of this change in policy to
ensure it was used for the correct purposes. The Eighth Circuit concluded that after the
policy change, employees would have the same expectation as before – a net decrease in
pay after complaining. Id. at 16. Therefore, the court concluded the post-2015 class
members were subject to the same adverse employment action as the pre-2015 class
members and remanded the case to determine whether direct or circumstantial evidence
establishes that CRST took this adverse employment action in retaliation for the post2015 class members’ Title VII-protected activity. Id. at 17.
On remand, plaintiffs were granted leave to file a first amended complaint (Doc.
271) with substituted plaintiffs. See Docs. 270, 280. Pursuant to the parties’ joint
proposed summary judgment briefing schedule (Doc. 287) adopted by the court, CRST
filed its renewed motion (Doc. 290) for summary judgment on plaintiffs’ retaliation claim
for post-2015 class members on August 15, 2022, followed by plaintiffs’ resistance and
CRST’s reply. The parties rely on their previously-filed statements of material facts,
responses and appendices. See Docs. 171, 187, 198.
3
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III.
ANALYSIS
CRST argues that the failure to publicize the HR layover pay policy in July 2015
has no effect on the remainder of the analysis of the retaliation claim, which it contends
should be similar to that for the pre-2015 class. As with that claim, CRST argues
plaintiffs have failed to come forward with evidence to demonstrate retaliatory intent.
A.
Undisputed Facts
The following relevant facts are undisputed:
CRST is a long-haul freight transportation company that utilizes a team driving
model such that one driver may sleep while the other is driving. New drivers with CRST
are paired with lead drivers to undergo training. Once training is completed, they may
pair with a partner or co-driver of their choosing. Drivers are paid by the load, calculated
by mileage. Thus, drivers only earn pay when they are driving a truck. CRST employees
are instructed to immediately report any harassment.
When a driver complains of harassment while on the road, CRST’s policy is to
remove the complainant from the situation, unless the complainant is the lead driver or
owner-operator of the truck. As of July 1, 2015, CRST may also provide the complainant
HR layover pay until CRST can pair that driver with a new co-driver. HR layover pay
is calculated as a daily amount equal to ten times the highest minimum wage in the
country.
CRST did not inform its employees of the change in policy regarding
availability of HR layover pay. Employees only learn about the availability of HR
layover pay after making a complaint of sexual harassment.
B.
Analysis
On remand, the issue is limited to whether plaintiffs can demonstrate a genuine
issue of material fact that CRST’s policy of removing women from their trucks in
response to their sexual harassment complaints was motivated by retaliation. The Eighth
4
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Circuit determined that the removal constituted an adverse employment action for post2015 class members because they had the same expectation as pre-2015 class members
that removal would result in no pay or a substantial reduction in pay. Plaintiffs argue a
jury should determine whether CRST’s intentional concealment of the availability of HR
layover pay makes it more likely than not that CRST’s reasons for its removal policy are
pretextual. They contend a jury could conclude that the creation of the HR layover pay
was not intended to benefit women, but to avoid minimum wage violations. They also
argue that concealment of the HR layover pay could be considered evidence of retaliatory
intent.
Because plaintiffs do not present any direct evidence of retaliation, I will analyze
their claim under the McDonnell Douglas2 burden-shifting framework. See Banford v.
Bd. of Regents of Univ. of Minn., 43 F.4th 896, 899 (8th Cir. 2022). Under this
framework, “a plaintiff must first ‘establish a prima facie case of retaliation,’ and if he
succeeds, ‘the burden shifts to the employer to articulate a legitimate, nonretaliatory
reason for the action.” King v. Guardian ad Litem Board, 39 F.4th 979, 986 (8th Cir.
2022) (quoting Wood v. SatCom Mktg., LLC, 705 F.3d 823, 829 (8th Cir. 2013)). “If
the employer does so, the burden shifts back to the plaintiff to demonstrate that the stated
reason is pretextual.” Id. (quoting Naguib v. Trimark Hotel Corp., 903 F.3d 806, 811
(8th Cir. 2018)). One way to show pretext is by “demonstrating that the employer’s
stated reason for the termination is false.” Williams v. United Parcel Service, Inc., 963
F.3d 803, 808 (8th Cir. 2020) (citing Barber v. C1 Truck Driver Training, LLC, 656
F.3d 782, 794 (8th Cir. 2011)). However, if plaintiffs choose this route, they must show
“both that the reason was false, and that [retaliation] was the real reason.” Id. (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 515 (1993) (emphasis in original)).
For purposes of this motion, CRST concedes that plaintiffs can establish a prima
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5
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facie case of retaliation and plaintiffs assume, for purposes of this motion, that CRST can
advance a legitimate, non-discriminatory reason (i.e., safety) for the removal policy.
Therefore, the issue centers on whether plaintiffs have adduced evidence that CRST’s
reason for the policy is pretext for retaliation.
Plaintiffs argue they have demonstrated a fact issue as to pretext with the following
evidence: (1) the creation of HR layover pay was not to benefit women, but to avoid
minimum wage violations, and (2) CRST concealed the availability of HR layover pay.
Each of these fails to demonstrate a fact issue. With regard to evidence that CRST sought
to avoid minimum wage violations, plaintiffs rely on deposition testimony of a CRST HR
representative:
Q:
. . . You referenced a minute ago . . . bullet point number 5,
that says “CRST will pay the accuser at a rate of $100 per
day in which they are without a team driver.” Who
determined the figure of $100 per day?
A:
The HR team did.
Q:
...
And what was the basis of picking $100?
A:
Average hours worked per day, ten – ten hours of driving
time. And then we adhered to the California minimum wage
at that – When this was documented, it was $10 an hour. So
ten hours times $10 per hour equates to the $100, which now
has obviously increased to 105 due to the recent minimum
wage increase, so we adhered to that minimum wage.
Q:
So the idea of picking that figure is to be in compliance with
California, which is the highest minimum wage?
A:
Highest, correct. Even if they are not a California employee.
Doc. 187-1 at 18.
As CRST points out, this testimony demonstrates how CRST
determined the amount of HR layover pay, not why it was implemented. See Doc. 300
at 8 (“it is only because CRST removes complaining drivers from their trucks for their
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safety, and creates special pay for them, that questions about the appropriate amount of
that pay become relevant.”) (emphases in original). Evidence that CRST sought to avoid
minimum wage violations in implementing its HR layover pay does not establish a
retaliatory motive for the removal policy. See Sellars v. CRST Expedited, Inc., 13 F.4th
681, 694 (8th Cir. 2021) (explaining that to show pretext, plaintiffs must “both discredit
CRST’s proffered reasons for the alleged retaliatory action and show that the
circumstances permit drawing a reasonable inference that retaliation was the real reason
for the adverse employment action.”).
As for concealment of the HR layover pay, plaintiffs argue a jury could determine
that by concealing this form of pay, CRST intended to deter women from making
complaints of sexual harassment by intentionally leaving them with the belief that doing
so will cause them to lose pay as a result of being removed from the truck. CRST
maintains that it did not inform employees of the availability of HR layover pay so as to
deter frivolous complaints. Plaintiffs argue a jury can reasonably conclude this was not
CRST’s real reason for hiding the existence of HR layover pay and can infer the real
reason was to deter all complaints.
CRST argues that any alleged deterrence would be no different than for the pre2015 class members. The Eighth Circuit has concluded that any knowledge by CRST of
possible negative consequences from its removal policy did not constitute evidence of
retaliatory intent. See Sellars, 13 F.4th at 694-96. CRST contends that the addition of
HR layover pay (the only real difference between the pre-2015 subclass and post-2015
subclass) to avoid negative consequences cannot transform the removal policy into a
retaliatory one.
Plaintiffs “must show that a retaliatory motive was the but-for cause of the adverse
action.” Sellars, 13 F.4th at 695 (citing Donathan v. Oakley Grain, Inc., 861 F.3d 735,
739 (8th Cir. 2017)). The Eighth Circuit held that after July 1, 2015, CRST’s removal
policy remained an adverse action because the availability of HR layover pay was
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unknown to employees. Thus, employees had the same expectation that a report of sexual
harassment would result in removal from their trucks and a pay cut. Plaintiffs argue that
the concealment of the pay also demonstrates CRST’s retaliatory motive for the removal
policy. Of course, prior to July 1, 2015, there was no HR layover pay. Under those
circumstances, the Eighth Circuit agreed that plaintiffs lacked evidence of retaliatory
animus.
To conclude a jury could find CRST’s removal policy was motivated by retaliation
after July 1, 2015, based on evidence that CRST did not inform employees of a newly
available benefit, would make no sense. Plaintiffs seem to conflate the adverse action at
issue (the removal policy), by suggesting that concealment of the HR layover pay is a
second adverse action that CRST must justify with a legitimate, nonretaliatory reason.
But the Eighth Circuit made clear that the concealment of the HR layover pay was why
the removal policy remained adverse after July 1, 2015 – because it left employees with
the same expectation of the consequences of removal prior to July 1, 2015. In other
words, it was not an adverse action in itself. To the extent the concealment of the HR
layover pay could be considered integrated into the adverse action, CRST argues that its
legitimate, nonretaliatory reason for not disclosing it to employees was to ensure that the
HR layover pay was used for legitimate complaints of sexual harassment. In light of that
reason, plaintiffs have offered evidence that that reason was false by suggesting that it
was implemented to avoid minimum wage violations, but they have failed to offer
evidence that the real reason was retaliation for the protected activity of reporting sexual
harassment.
The fact that CRST sought to avoid any minimum wage violations in implementing
the HR layover pay is not evidence of a retaliatory motive. CRST’s justification for
concealing the availability of HR layover pay was to ensure it was used for legitimate
complaints and to deter frivolous complaints. “Creating a genuine issue of material fact
regarding pretext requires more substantial evidence than it takes to make a prima facie
8
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case because unlike evidence establishing a prima facie case, evidence of pretext and
retaliation is viewed in light of the employer’s justification.” Hairston v. Wormuth, 6
F.4th 834, 843 (8th Cir. 2021) (quoting Yearns v. Koss Const. Co., 964 F.3d 671, 675
(8th Cir. 2020)). Even if a jury could infer that CRST’s proffered reason was false by
plaintiffs’ evidence that CRST was really seeking to avoid minimum wage violations,
there is no evidence that the removal policy and concealment of the HR layover pay was
motivated by retaliation.
Plaintiffs argue the real reason for removal and concealment of HR layover pay
was to deter all complaints, but even in the absence of the HR layover pay, there was no
evidence of retaliatory motive. Evidence that CRST did not inform its employees of a
new benefit that was available to complainants so as to avoid the negative consequences
associated with removal prior to July 1, 2015, cannot turn the previously non-retaliatory
removal policy into a retaliatory one. Concealment of the availability of HR layover pay
after July 1, 2015, is insufficient to generate a fact issue that CRST’s removal policy
(which remained unchanged) was motivated by retaliation. Additionally, to allow an
inference that the concealment of the HR layover pay, in addition to the removal, was
retaliatory based on the concealment itself is circular and nonsensical. Plaintiffs have
failed to demonstrate a fact issue on retaliatory motive based on concealment of the HR
layover pay.3
Because plaintiffs have not offered evidence that would allow a reasonable
inference of retaliatory animus by CRST as to the removal policy after July 1, 2015, they
have failed to demonstrate a genuine issue of material fact on the post-2015 class
retaliation claim. CRST is entitled to summary judgment on that claim.
3
To the extent plaintiffs attempt to demonstrate a fact issue as to retaliatory motive based on
what complainants actually received in HR layover pay, I find such evidence to be immaterial.
The focus is on CRST’s motive regarding the removal policy. See Donathan, 861 F.3d at 739
(“The plaintiff’s ultimate burden in a Title VII retaliation case is to prove an impermissible
retaliatory motive was the ‘but-for cause’ of the adverse employment action.”).
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IV.
CONCLUSION
For the reasons set forth herein, CRST’s renewed motion (Doc. 290) for summary
judgment on plaintiffs’ class retaliation claim for the post-2015 class members is granted.
Because this order disposes of all pending claims, judgment shall enter in favor of CRST
and the Clerk of Court shall close this case.
IT IS SO ORDERED.
DATED this 11th day of January, 2023.
________________________________
Leonard T. Strand, Chief Judge
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