Sellars et al v. CRST Expedited, Inc

Filing 85

MEMORANDUM Opinion and Order granting in part and denying in part 35 SEALED Motion For Class Certification filed by Claudia Lopez, Leslie Fortune, Cathy Sellars (See Order Text). Plaintiffs counsel of Friedman & Houlding, LLP, and local couns el Thomas Newkirk, are hereby appointed as class counsel for both certified classes. This Order may be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Signed by Chief Judge Leonard T Strand on 3/30/2017. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CATHY SELLARS, on behalf of herself
and all others similarly situated, et al.,
Plaintiffs,
vs.

No. C15-117-LTS
MEMORANDUM OPINION
AND ORDER

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

INTRODUCTION........................................................................... 2

II.

BACKGROUND ............................................................................. 3
A.

CRST’s Business .................................................................... 3

B.

CRST’s Handling of Sexual Harassment and Related
Complaints ........................................................................... 5

C.

Plaintiffs’ Allegations .............................................................. 7
1.
2.

Failure to Impose Discipline Where Harassment is
Corroborated .............................................................. 10

3.

Tolerating DMs’ Failure to Act Promptly on
Harassment Complaints ................................................. 12

4.

“Unpaid Suspension” ................................................... 15

5.

Transit and Lodging Costs.............................................. 16

6.
III.

Corroboration of Complaints............................................. 8

Extension of Student Driver Training ................................ 17

DISCUSSION.............................................................................. 18
A.

Evidentiary Issues ................................................................ 18

B.

Class Certification ................................................................ 22
1

1.

Applicable Law ........................................................... 22

2.

Rule 23(a) Requirements ................................................ 23
a.

Numerosity ........................................................ 23

b.

Commonality ...................................................... 27
i.

Corroboration of Complaints .......................... 31

ii.

Failure to Impose Discipline........................... 32

iii.

Failure to Discipline DMs.............................. 34

iv.

Unpaid Suspension ...................................... 36

v.

Transit and Lodging Costs ............................. 37

vi.

Extension of Student Training ........................ 38

c.
d.
3.

Typicality .......................................................... 39
Adequacy of Representation ................................... 41

Rule 23(b) Requirements ................................................ 42
a.

Rule 23(b)(3) ...................................................... 43
i.
ii.

b.

Predominance ............................................ 43
Superiority ................................................ 48

Rule 23(b)(2) ...................................................... 49

4.
5.

Rules Enabling Act ...................................................... 52

6.
IV.

Rule 23(c)(4) .............................................................. 50
Article III Standing ...................................................... 53

CONCLUSION ............................................................................ 54
I.

INTRODUCTION

This case is before me on plaintiffs’ motion (Doc. No. 35) for class certification.
Defendant has filed a resistance (Doc. No. 55) and plaintiffs have filed a reply (Doc. No.
65). Neither side has requested a hearing and, in any event, I find that a hearing is not
necessary. See N.D. Ia. L.R. 7(c).

2

II.

BACKGROUND

Plaintiffs are female truck drivers and assert claims of hostile work environment
and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the California
Fair Employment and Housing Act (FEHA) against their employer, CRST Expedited,
Inc. (CRST). In 2014, Cathy Sellars (Sellars), Claudia Lopez (Lopez) and Leslie Fortune
(Fortune) each filed a charge of discrimination against CRST with the Equal Employment
Opportunity Commission (EEOC) and California Department of Fair Employment and
Housing. They were provided notices of right to sue from each organization and timely
filed this lawsuit on behalf of themselves and others similarly situated. They allege CRST
has maintained patterns or practices of discrimination amounting to a hostile work
environment and retaliation toward female drivers who report sexual harassment.
A.

CRST’s Business
CRST employs approximately 7,000 truck drivers. Doc. No. 35-3 at 10. It has

more than 3,500 drivers on the road at any one time. Doc. No. 55-1 at 4. It is the
nation’s largest team carrier, servicing 48 states and Mexico. Doc. No. 35-2. Women
make up approximately 12 to 13 percent of CRST’s workforce. Doc. No. 35-4 at 2;
Doc. No. 55-1 at 15. CRST assigns two drivers per truck so that one driver may sleep
while the other is driving. Doc. No. 35-5 at 1; Doc. No. 55-1 at 4. This allows the
truck to continue moving beyond the 14-hour limit per driver. Id. Each truck contains
a small sleeper berth with a bunk bed. Doc. No. 35-6 at 1-2; Doc. No. 55-1 at 4.
CRST has four terminals located in Riverside, California; Oklahoma City,
Oklahoma; Carlisle, Pennsylvania; and Cedar Rapids, Iowa. Id. at 2. Drivers begin and
end their trips at these terminals. Id. Both the Cedar Rapids and Riverside terminals
contain living facilities, including sleeping areas, where drivers may stay until their next
assignment. Doc. No. 35-3 at 21.
All driving teams are supervised by a driver manager (DM). Doc. No. 55-1 at 6.
3

All DMs are based in Cedar Rapids and communicate with drivers via phone, email and
Qualcomm messaging.1 Id. DMs are responsible for ensuring that loads are delivered
on time and are evaluated on various metrics such as time percentage, overall mileage
and truck utilization. Doc. No. 35-3 at 31; Doc. No. 35-12 at 2. They are also
responsible for driver retention and addressing conflicts amongst team drivers. Doc. No.
35-3 at 31. Their performance on these metrics determines their eligibility for a bonus
and can also lead to the termination of their employment. Doc. No. 35-12 at 2. DMs
are trained annually on Title VII issues and are instructed to separate drivers upon a
complaint of sexual harassment. Doc. No. 35-3 at 54-55. DMs must then report the
complaint to human resources (HR). Id. at 57,
CRST provides a training program for new truck drivers consisting of classroom
instruction, road testing and a 28-day over-the-road training period with a lead driver.
Doc. No. 35-3 at 40-42. Student drivers are required to sign a contract providing they
will continue working for CRST for a specified period of time after their training to “pay
back” CRST for the value of their training. Id. at 41. Lead drivers accompany student
drivers on the 28-day over-the-road testing and are responsible for evaluating the student
on approximately 20 different skills and completing paperwork that assesses the student’s
performance. Id. at 47. The lead driver then makes a recommendation as to whether
the student should pass his or her training. Id. The DM makes the ultimate decision on
whether or not to pass the student based on this information. Id. at 47-48.
There are approximately 25 female lead drivers out of about 500 at any given time.
Doc. No. 35-19 at 1-2; Doc. No. 55-1 at 15 (identifying 23 female lead drivers as of
August 31, 2016). In August 2016, CRST had 54 females out of 617 total student drivers.
Doc. No. 55-1 at 15. The only eligibility requirements to become a lead driver are six

1

Qualcomm messaging is a computer system that allows driver managers and their drivers to
send text messages back and forth. DMs have Qualcomm set up on their computers while drivers
access it through a small computer in the truck. Doc. No. 35-17 at 2-3.

4

months recent over-the-road experience, acceptable winter driving experience and ten
other specific requirements relating to driving and logging performance. Doc. No. 3518. Lead drivers must also complete a certification class, which includes specific training
on CRST’s policy prohibiting sexual harassment in the workplace. Doc. No. 55-1 at 10.
Lead drivers are paid a higher split mileage rate. Doc. No. 35-15.
Once a student passes training, he or she becomes a regular CRST driver. The
next task is to find a co-driver. A driver may request a list of potential co-drivers, whom
the driver may contact to see if they would like to drive with that individual. Doc. No.
35-3 at 25-26. CRST maintains a gender-neutral policy with respect to its driver teams.
Doc. No. 55-1 at 5. However, a driver may request to be paired with only a male or
female driver. Doc. No. 25-3 at 26. CRST may also designate certain drivers for male
or female co-drivers depending on any past issues. Id. at 28. Drivers are not paid during
the period in which they are waiting to find a co-driver. Once a DM approves a pairing,
the pair can begin driving and earning pay. Id. at 26-27.
Drivers are paid per mile. Doc. No. 35-3 at 11. Most drivers have their payroll
deposited directly onto ComData cards (similar to debit cards) issued by CRST rather
than receiving a check. Doc. No. 35-17 at 7-8. DMs may also advance money onto the
card, which will automatically be recouped by deducting the amount from the driver’s
next paycheck. Id. at 35-36.
B.

CRST’s Handling of Sexual Harassment and Related Complaints
Karen Carlson (Carlson) is CRST’s Manager of Employee Relations. As such,

she is in charge of investigating complaints of harassment or discrimination. Doc. No.
35-3 at 3. From June 2013 to April 2014, Carlson was solely responsible for investigating
employee complaints. By the end of 2015, CRST had hired two employee relations
representatives, Cassie Burrill and Megan Knott, to assist Carlson in investigating
employee complaints. Id. at 5-7.
5

When a driver raises a complaint that falls within the ambit of Title VII, that driver
is directed to get off the truck. Id. at 12. As of May or June 2015, he or she is then
given HR layover pay while Carlson or one of her team members investigates the
complaint. Id. at 12-13. According to Carlson, prior to this policy the complaining
driver was removed from the truck but did not receive any HR layover pay or other pay.2
Id. at 13-14. Aside from the HR layover pay that is now in place, complainants may also
receive funds to cover hotel expenses and cab fare. Id. at 17. All harassment complaints,
regardless of location, are subject to the same HR policies. Id. at 24.
CRST’s driver employee handbook specifically provides, “The Company prohibits
sexual harassment and the harassment of any individual . . . .” Doc. No. 55-1 at 19.
The handbook contains a section on the definition of harassment and a section on sexual
harassment, which provides specific examples of prohibited conduct. Id. at 19-20. CRST
addresses its policy on sexual harassment during driver orientation. Doc. No. 55-1 at 89. Drivers watch video presentations and receive business cards with reporting phone
numbers. Id. at 9, 62. CRST also displays its sexual harassment policies at all company
locations. These postings include the 24-hour ReportLine telephone number. Id. at 12,
71.

It also uses newsletters and memoranda to reiterate and reinforce its sexual

harassment policies. Id. at 13. Since 2012, CRST has sent all drivers a copy of its sexual
harassment policy on a quarterly basis via Qualcomm. Id. In 2015, CRST began sending
Qualcomm messages outlining CRST’s expectations concerning sexual harassment along
with all contact information for reporting sexual harassment. Id. at 49.
According to Carlson, if a Title VII complaint has been made against a lead driver,
HR does not have the authority to stop the lead driver from continuing to drive. Id. at

2

CRST has submitted a declaration from Angela Stastny, Director of HR, stating that the HR
layover pay policy was initiated in July 2015 and that prior to that time, drivers would have had
any lodging and transportation costs as a result of getting off the truck pre-paid or reimbursed.
Doc. No. 55-1 at 15.

6

45. That decision may be made only by the DM, the operations manager, the lead
coordinator, the supervisor of safety, the director of company drivers or the director of
lease-purchase drivers. Id.
When a driver has a complaint, he or she may call the HR Service Center line,
which is a general HR line, or a hotline number that is available 24 hours a day, seven
days a week. The hotline, which is operated by a third-party vendor, permits the
complainant to speak to a person who will take notes about the situation and forward
those notes electronically to Carlson or one of her team members. Id.
C.

Plaintiffs’ Allegations
Plaintiffs allege CRST has maintained various policies, patterns or practices that

create or contribute to a hostile work environment for its female drivers. Plaintiffs allege
that these policies are “centrally devised and have been commonly applied for years to
all drivers.” Doc. No. 35-1 at 14. These policies allegedly include:
 Refusing to find harassment can be corroborated despite evidence
beyond “he said/she said” accounts
 Failing to impose discipline even when harassment is corroborated
 Tolerating DMs’ failure to act promptly on harassment complaints
They also allege CRST maintains policies, patterns or practices of discriminating and
retaliating against women who complain of sexual harassment. These policies include:
 Subjecting women who complain of sexual harassment to “unpaid
suspension”
 Imposing transit and lodging costs incurred as a result of their
complaint
 Extending their student driver training
I will discuss the evidence plaintiffs have put forth in support of each of the identified
policies in their attempt to show they have met the class certification requirements of
Federal Rule of Civil Procedure 23(a).
7

1.

Corroboration of Complaints

Plaintiffs allege that CRST maintains a pattern or practice of failing to find a
harassment complaint is corroborated in the absence of an admission by the accused
individual or an eyewitness account. This is based on Carlson’s deposition testimony as
well as anecdotal evidence. Carlson testified as follows:
Q:

If the allegations of harassment concerned behavior that
occurred on the truck while the drivers are there together,
would it ever be possible for you to find that harassment was
corroborated based on evidence other than a third person
eyewitness who was on the truck seeing harassment?

A:

Not unless there was an admission by the accused individual.

Doc. No. 35-3 at 67-68. Plaintiffs allege that under this policy, it is nearly impossible
for any woman to prove she was sexually harassed by her co-driver on a truck. Further,
plaintiffs allege CRST has had knowledge that its policy is discriminatory based on an
email from Carlson dated August 3, 3014. Doc. No. 35-20. In this email, Carlson
recommended that cameras be installed on the trucks. Id. She wrote, “So many of my
investigations including those such as physical altercations, inappropriate verbal
comments, throwing the qualcomm, sexual misconduct, etc. are hearsay and there are no
witnesses.

I feel that a camera on each truck would mitigate the possibility of

misconduct.” Id.
Plaintiffs provide declarations to demonstrate how this policy has been applied.
Veronica Saur’s declaration states that a male co-driver made offensive sexual comments
to her, including requesting sex and asking to stay together in a hotel. Doc. No. 35-10
at 2. Saur used her phone to record some of the offensive comments. Id. She then
called CRST dispatch and reported her co-driver’s behavior. Id. Saur also reported her
co-driver’s behavior to Carlson and offered the recordings as evidence. Id. at 3. Carlson
stated she could not consider the recordings because there was no way to verify whether

8

it was her co-driver’s voice or someone else’s. Id.3 Saur then complained to the terminal
manager of the Riverside Terminal. He also refused to listen to the recordings. Id.
Carlson later informed Saur of her finding that “nothing had happened with [Saur’s codriver]” and he was not fired.4 Id.
The other example plaintiffs provide is from plaintiff Sellars. Sellars states she
reported to Carlson that her new co-driver had shown her and a female co-worker a video
of stuffed animals “with a knife . . . the reindeer and bear holding him hostage” and that
later, while on the truck, her co-driver told her “the reindeer are going to tie you up and
do something to you.” Doc. No. 35-22 at 1. Sellars reportedly called her daughter and
told her what her co-driver said. She also sent Qualcomm messages. A DM called her
co-driver and he denied anything inappropriate. Id. Sellars stated her co-driver pulled
out a knife, put it on the dash and told her she was not going to get off the truck until he
was ready to let her out. Id. A DM called her back and Sellars told him about the knife.
Id. at 2. When her co-driver stopped, she got out of the truck and was able to stay at a
hotel at that location. Id. Carlson interviewed the co-driver about this incident. Doc.
No. 35-23 at 1. He admitted he had a utility knife on the truck, but stated that he kept it

3

CRST disputes much of the anecdotal evidence plaintiffs rely on. These disputes “may be
resolved only insofar as resolution is necessary to determine the nature of the evidence that would
be sufficient, if the plaintiff’s general allegations were true, to make out a prima facie case for
the class.” Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005). In most instances, the
disputes between the parties involve competing admissible evidence. Therefore, I will
acknowledge CRST’s evidence, but find that no further resolution of the disputed evidence is
necessary because plaintiffs’ evidence, if presented in the form of testimony, would be sufficient
to make out a prima facie case for the class. On that note, CRST disputes the allegation that
Carlson refused to listen to the recordings. See Doc. No. 55-2 at 11 (“I did not refuse to listen
to Saur’s recording of Reeve.”).

4

CRST disputes this statement. See Doc. No. 55-2 at 11 (“I did not advise Saur that she [sic]
found nothing had happened with Reeve, but sent a follow up letter regarding the investigation
to Saur on March 4, 2014.”). See Doc. No. 55-2 at 235 (in which the follow up letter states in
relevant part, “I want to assure you that I have conducted an investigation and we have taken
appropriate action regarding this matter.”).

9

in the door of the truck. Id. at 3. He also admitted showing the video, but stated that
Sellars made a comment that she could tie herself up. Id. He claimed Sellars did not
have a problem until she realized their truck was headed for New Mexico rather than
Oklahoma City. Id. at 3-4. Carlson also interviewed the female co-worker, who stated
that she was aware the co-driver had a knife and corroborated the allegation that he had
shown them a video depicting him tied up and acting like stuffed animals were holding a
knife that was shown in the video. Doc. No. 35-24. Carlson made the following
conclusions:
 The co-driver admitted he had a utility knife on the truck but size
could not be corroborated.
 The co-driver admitted to a video he posted on Facebook that showed
him tied up as if a hostage by stuffed animals.
 This appears to be a he-said/she-said situation. Corroboration of
wrongdoing could not be made.
 Drivers instructed not to contact one another via phone, text, email,
in person or by other means.
 The co-driver was instructed to be mindful of the material on his
phone and not to share inappropriate photos or videos to co-workers.
Id. Plaintiffs argue this should not have been deemed a “he-said/she-said” situation,
given the “overwhelming corroborating evidence.” Doc. No. 35-1 at 17. Therefore,
they argue CRST’s policy of failing to find that complaints of sexual harassment can be
corroborated absent an admission or eyewitness is discriminatory and creates a hostile
work environment.
2.

Failure to Impose Discipline Where Harassment is Corroborated

With regard to its disciplinary practices, plaintiffs allege CRST fails to discipline
harassing drivers even when their harassing behavior has been corroborated. They note
CRST’s standard response to complaints of sexual harassment is to designate the accused
driver as “male only” or “no females,” meaning the accused male driver may drive only
10

with other males.

Doc. No. 35-3 at 79.

Plaintiffs allege this designation is not

disciplinary as it does not reduce a driver’s pay, is not considered to be a disciplinary
warning, and is used in instances even when the harassment could not be corroborated.
Id. at 80-81. Indeed, a driver could request from the beginning to be paired only with
male or female drivers. Id. at 79.
When harassment is corroborated, HR makes a recommendation as to what should
be done and the driver’s DM has authority to decide what discipline, if any, should be
imposed, subject to approval by the supervising Operations Manager. Id. at 74-75.
Carlson testified that “any corroborated harassment . . . of a Title VII nature” “will result
in termination.” Id. at 73. Carlson is responsible for evaluating the situation and
determining whether the harassment constitutes a Title VII violation justifying
termination. Id. at 77.
Plaintiffs provide anecdotal evidence of CRST’s failure to impose discipline. On
one occasion, a lead driver was alleged to have made inappropriate jokes of a sexual
nature to a male friend on the phone and made vulgar and harassing remarks to a student
who was on the lead driver’s truck. Doc. No. 35-29. This was corroborated by one of
CRST’s employee relations representatives. The lead driver coordinator recommended
pulling the driver’s lead certification and HR recommended designating him male only.
Id. The offending driver was not discharged and was permitted to finish training another
(male) student who was on his truck during the investigation. Id.
In another instance, HR “[c]orroborated that [a] Lead . . . did talk about sex with
his girlfriend and friends” while his student was on the truck and his lead certification
also was not revoked. Doc. No 35-32. His team preference was changed to male only
and he was put through Positive Work Environment (PWE) training again. Id. Plaintiffs
also give an example in which a lead admitted to having “pornographic books and
magazines laying around the truck” and listening to “uncensored radio . . . which talked
about penis, breasts, sex . . .” while training a student. Doc. No. 35-33. Carlson
11

interviewed the driver, who admitted he had uncensored radio and pornographic
magazines but stated his magazines did not have pictures. Id. He stated the student he
was currently with was his last and then he had a co-driver lined up. Id. He was put
through PWE training again and his preference was changed to male only. Id.
Plaintiffs allege these disciplinary issues apply to regular drivers as well, not just
leads. In one case, a driver sent Carlson a text message she had received from another
driver saying, “lets chill, I’m gonna be honest, I want to eat that. If you know what I’m
talking about. Just between me and you.” Doc. No. 35-30. The driver who sent the
offensive message then attempted to give a fake identity, but later admitted to doing that
because he “felt [she’d] like to tell someone.” Id. When Carlson interviewed the driver
who sent the message, he admitted to sending it but stated that the female driver had
come on to him and had given him her number. Doc. No. 35-31. His team preference
was changed to male only and he was advised that another similar allegation could be
grounds for termination. Id. Based on this evidence, plaintiffs argue that CRST’s policy
of failing to discipline drivers for corroborated allegations of sexual harassment is
discriminatory and creates a hostile work environment.
3.

Tolerating DMs’ Failure to Act Promptly on Harassment Complaints

Finally, plaintiffs allege that CRST maintains a pattern or practice of tolerating
DMs’ failures to act promptly on harassment complaints, which is discriminatory and
creates a hostile work environment. Due to the nature of CRST’s business, complaints
do not always arise during normal business hours. Drivers are instructed to call the HR
Service Center line with complaints. Doc. No. 35-3 at 50. During normal business
hours, the complaint will reach an employee relations representative. Outside of normal
business hours, it will go to voicemail. Id. at 50-51. The direct number for HR also is
not staffed overnight and a call will be sent to voicemail. Id. at 51-52. CRST does
maintain a 24-hour hotline number, operated by a third party vendor Id. at 50. A staff
12

member will take notes on a driver’s complaint and email them to Carlson. Id. at 50-51.
In other words, if a complaint is made during off hours, CRST’s HR department is not
set up to respond to the complaint until the following business day. A driver in need of
immediate assistance, however, may communicate with the DM. DMs are instructed to
split the drivers when they receive a sexual harassment complaint. Id. at 53.
Plaintiffs allege CRST has a pattern or practice of tolerating DMs’ failure to
promptly separate the drivers upon receiving a sexual harassment complaint. They allege
DMs frequently encourage drivers to continue driving with the person they are claiming
has sexually harassed them. For instance, plaintiff Fortune states in her declaration that
after complaining that her co-driver had been propositioning her for sex, her fleet
manager laughed at her and told her to get back on the truck saying “you guys can work
this out.” Doc. No. 35-8 at 3-4. On another occasion, Fortune complained about her
co-driver making inappropriate comments to her and her DM told her to stay on the truck
and to let them know if something happened. Id. at 6. On yet another occasion, Fortune
complained about her co-driver standing over her bed while she was asleep and asking to
get into bed with her. Id. at 7. She said she wanted to get off the truck right away, but
her DM stated she would reroute the truck to Riverside where Fortune could then get off
the truck. Id.
Driver Kathy Von Hatten states that when she complained about her co-driver
groping and assaulting her, her DM told her to have her co-driver drop her off at the
terminal. Doc. No. 35-11 at 2. Von Hatten states that due to her co-driver’s constant
harassment, she felt she had no choice and had sex with him. Id. He dropped her off at
one of CRST’s terminals a few hours later. Id. Driver Evangelina Martinez provided a
declaration stating she complained to her DM about her co-driver rubbing his penis
against her and harassing her. Doc. No. 35-7 at 2. She told him she did not want to
drive with him anymore. Id. He told her to stay on the truck and be patient and that he
would talk to her co-driver to see what was going on. After her co-driver’s behavior
13

continued, she called CRST’s safety office and was again told to stay on the truck. Id.
Driver Sandra Encinas provided a declaration stating that her co-driver grabbed her
buttocks while she was sleeping. He also made offensive remarks to her. Doc. No. 359 at 2. After reporting this conduct to her DM, he asked if she could just stay on the
truck until she got home since that was where they were headed. Id. She stated she
needed to get off the truck right away, but he pressured her to keep driving back to the
terminal in Riverside to finish “one last load.” Id. at 2-3. Finally, Saur states that after
complaining to her DM that her co-driver was touching her with his feet and making
sexual comments, her DM told her to stay on the truck with him. Doc. No. 35-10 at 2.
Plaintiffs also provide evidence that they reported this behavior to CRST and that
CRST had knowledge of it. See Doc. No. 35-34 (email stating “I had notified [DM]
about my sexual harassment claims prior to my final load delivery. I also spoke to the
Operation Manager above [him], when I refused to relay my final load. My final load
destination was to Downey, California, but [the DM] tried to initiate a relay in Missouri
for a load to Washington State which I refused because I did not want to continue driving
with [my co-driver]. The Operation Manager accused me of making a sexual harassment
claim without evidence, and he disconnected the phone call with me.”); Doc. No. 35-35
(message forwarded to HR between DM and female driver in which DM advised
complainant to stay on truck until they delivered the load and could get the truck to the
Riverside terminal). Plaintiffs also reference Carlson’s recommendation that cameras be
installed on trucks. She made this recommendation in late 2013 or early 2014, but
received a “neutral response.” Doc. No. 35-3 at 83-85. In addition to recommending
cameras, Carlson also recommended that DMs spend some time on a truck and that CRST
implement an “undercover boss” type program to monitor the performance of lead
drivers, as they were the source of most complaints. Doc. No. 35-20.
Plaintiffs contend that CRST has admitted no DM has ever been disciplined for
encouraging a woman complaining of sexual harassment to stay on the truck. See Doc.
14

No. 35-3 at 59-60 (“Q: Has any dispatcher ever been disciplined in any form for
encouraging a complainant to stay on the truck rather than separating the drivers right
away when they received a complaint? A: Not to my knowledge.”). Plaintiffs allege
that the DMs’ performance metrics and bonus structure incentivize DMs to keep trucks
moving and have loads delivered despite HR’s instructions to split drivers immediately
when a sexual harassment complaint arises. Plaintiffs allege this pattern and practice of
allowing DMs to respond to sexual harassment complaints in this way contributes to a
hostile work environment.
4.

“Unpaid Suspension”

Plaintiffs further allege that CRST has a pattern or practice of removing female
complainants while allowing the male drivers to continue driving, earning money and
working with other co-drivers, which amounts to discriminatory retaliation. They allege
CRST’s policy requires the accuser, not the accused, to be removed from the truck when
there is a complaint of sexual harassment.5 Plaintiffs claim this policy is retaliatory
because drivers may earn pay under the split mileage rate system only when the truck is
moving. They claim “[i]t is a punishment for complaining, and a deterrent for female
drivers, who know they will be pulled off their truck and stranded with no pay if they
make a complaint.” Doc. No. 35-1 at 19. They allege CRST could use non-mileagebased compensation to avoid a retaliatory effect, as CRST does in other instances such
as providing layover pay when trucks lie empty or when there is a truck breakdown or

5

The only exceptions to this policy are when a lead driver has a complaint against a student, as
students are not authorized to remain on the truck alone, and when the complainant is an owneroperator. Doc. No. 35-3 at 55; Doc. No. 55-1 at 14. In all other instances, plaintiffs allege
CRST’s policy requires the accuser to leave the truck.

15

impassable road.6 Id. Plaintiffs contend that a month after they filed their case in
California, CRST instituted a policy of paying “HR layover pay” to women complaining
of sexual harassment “so that they don’t suffer financially for having to get off the truck
so that we can investigate the allegation brought forward.” Id. Plaintiffs allege this
change in policy is evidence that CRST knew its previous policy was retaliatory. As
such, plaintiffs claim all female drivers were subject to CRST’s retaliatory “unpaid
suspension” policy up to May or June 2015.7 Even as of July 2016, plaintiffs state that
the new HR layover pay policy was not in the employee handbook and had not been
produced in any written format. Id. at 19-20.
5.

Transit and Lodging Costs

Plaintiffs allege CRST has a policy or practice of discriminating and retaliating
against women complaining of sexual harassment by imposing transit and lodging costs
incurred as a result of their complaint.

Plaintiffs state that upon making a sexual

harassment complaint, CRST would remove the accuser from the truck and advance
lodging and transit costs. CRST would then recoup these costs by deducting them from
the driver’s next paycheck. Several of the declarations submitted by plaintiffs state that
any lodging or transportation costs they had following their harassment complaints were
advanced and then deducted from their paycheck. See Doc. Nos. 35-6 at 7; 35-7 at 3;
35-9 at 3; 35-10 at 2-3.8

6

CRST’s director of HR states in a declaration that “[p]rior to July 2015, where there was a
delay in the pairing and continuation of driving which exceeded 48 hours, a driver complaining
of harassment would receive layover pay of $40/day – assuming the complaining driver was
located at a remote site and not at their home.” Doc. No. 55-1 at 15.

7

CRST clarifies this policy went into effect July 2015. See Doc. No. 55-1 at 15.

8

CRST denies these costs were deducted from the drivers’ paychecks and provides supporting
documentation. See Doc. No. 55-2 at 6, 9-10.

16

Plaintiffs allege that CRST has acknowledged its policy was retaliatory because it
has now changed that policy.

As of July 2015, drivers who complain of sexual

harassment are “not to be required to pay back hotel and cab fares related to [their] being
pulled off the truck . . .” Doc. No. 35-27. Plaintiffs point out that Carlson still testified
in July 2016 that she did not know whether CRST had a policy of covering hotel expenses
associated with a driver being pulled off a truck due to a Title VII-related complaint. See
Doc. No. 35-3 at 16-17 (in which Carlson testified that her understanding is that the hotel
and cab fares are paid, but stated she does not have the policy and was “unaware of the
policy that [the DMs] rely on concerning those payments.”). Plaintiffs state Carlson’s
testimony raises the question of whether the new policy is being applied or whether
compliance with the policy is being monitored. Nonetheless, they contend the policy
prior to July 2015 amounted to discriminatory retaliation.
6.

Extension of Student Driver Training

Plaintiffs allege CRST has a pattern or practice of discriminating and retaliating
against women complaining of sexual harassment by extending their student driver
training. Specifically, plaintiffs allege that a student driver’s over-the-road training is
extended far beyond 28 days if the student is removed from a lead driver’s truck due to
her sexual harassment complaint. Id. at 21. They contend this deprives the student of
being able to earn regular pay as a co-driver. In other words, if a student driver makes
a sexual harassment complaint, her training time will be extended and she will continue
being paid at the lower student rate. Id. (citing Doc. No. 35-3 at 70-72).9 Sellars’
declaration states that her training went on for over two months due to repeated
9

CRST has submitted declarations stating that a student driver’s pay is not affected due to the
extension of training unless the extension exceeds three months. See Doc. No. 55-1 at 6 (noting
that a student driver’s pay rate does not increase until the completion of three months of service);
Id. at 10 (“[u]nless a driver’s training period is extended beyond 90 days there is no economic
detriment to a ‘student driver’ designation versus a ‘co-driver’ designation.”).

17

harassment by her trainers. See Doc. No. 35-6 at 8. Plaintiffs also point to an email
from the student driver coordinator advising that she was looking for a female lead driver
for a student to complete her 28-day training again. Doc. No. 35-28 at 1. The student
driver said she refused to do another 28 days because she had done nothing wrong and
CRST was punishing her for “those men making advances on her.” Id. The student
coordinator indicated she told the student that because her training had been broken up
so much, CRST would like her to perform a full 28-day training again for “her safety
and others.” Id. Plaintiffs argue this policy of extending a student driver’s over-theroad training beyond 28 days due to her reports of sexual harassment is discriminatory
retaliation.
III.
A.

DISCUSSION

Evidentiary Issues
Prior to considering whether plaintiffs have established the requirements for class

certification, I must first address evidentiary issues raised by plaintiffs in their reply (Doc.
No. 65). Plaintiffs take issue with CRST’s submission of the declarations of Angela
Stastny (Director of HR and Carlson’s direct supervisor), Chad Brueck (Vice President
of Operations from mid-2011 through May 2016) and Laura Wolfe (Director of Safety).
Stastny’s declaration addresses timing and payment of lodging and transit costs
when a driver complaining of harassment is removed from a truck.

During her

deposition, Carlson was unable to answer many questions as to (1) whether funds for
these expenses were advanced and then recouped by CRST and (2) when CRST instituted
its HR layover pay policy. Indeed, while plaintiffs’ motion for class certification was
pending, the parties litigated whether Carlson was a sufficient Rule 30(b)(6) witness.
Doc. Nos. 26, 43, 48. Then-Chief United States Magistrate Jon S. Scoles determined
that Carlson was able to answer questions related to all of the subjects identified by
plaintiffs in their Rule 30(b)(6) notice, with one exception: she lacked knowledge
18

regarding driver pay. Doc. No. 61 at 3. Paragraph C(1) of plaintiffs’ Rule 30(b)(6)
notice requested a corporate witness who would be generally able to testify as to CRST’s
“practices” regarding compensation and pay rates for drivers.

Id.

Judge Scoles

instructed: “If the parties cannot agree on some other form of discovery, then CRST must
produce a witness who is able to testify regarding ‘CRST’s policies, practices,
procedures, criteria, and standards regarding, and the identity and physical location of
the persons responsible for, setting or determining compensation and pay rates for
drivers.’” Id. Plaintiffs apparently did not agree to Stastny’s declaration in satisfaction
of Judge Scoles’ order. Plaintiffs now claim they are disadvantaged because CRST relies
on Stastny’s declaration in resistance to the class-certification motion and plaintiffs
contend that these issues are a key component of their case.
Stastny’s declaration addresses three topics raised by plaintiffs:
(1)

an exception to the purported policy that the complainant must
always get off the truck unless she is a lead driver and the
accused a student driver

(2)

whether prior to July 2015 complainants ever received any pay after
getting off a truck due to their complaint and whether transit and
lodging costs deducted from pay were reimbursable

(3)

whether DMs were ever suspended or had their employment
terminated for failing to comply with HR policies

As to the first topic, Stastny stated: “If a student driver lodges a complaint against a lead
driver who is an owner/operator, then the student or co-driver would be removed from
the truck because it is the owner/operator who owns the truck. This would also apply to
a company/co-driver who lodges a complaint against an owner/operator.” Doc. No. 551. This is consistent with plaintiffs’ contention that CRST’s policy is to always remove
the complainant from the truck. However, it appears Stastny’s point was that an owneroperator must always stay with his or her truck. This provides a non-discriminatory
reason as well as an exception to the policy alleged by plaintiffs that the complainant is
always directed to get off the truck rather than the alleged harasser.
19

As to the second topic, Stastny’s declaration provides that prior to July 2015, a
complainant was paid $40 per day if a delay in pairing the driver exceeded 48 hours and
she was at a remote location and not her home. Id. at 15. Lodging and transportation
costs were also pre-paid or reimbursed under these circumstances. Id. If a DM needed
to advance money to cover costs, the driver would need to submit receipts for CRST to
reimburse costs.

Id. (noting that if an advance of a fixed sum was made, it was

subsequently deducted from the driver’s pay and could then be reimbursed upon
submission of receipts). CRST explains that Stastny’s declaration demonstrates that
under the former policy, it may not have been obvious that CRST covered costs related
to harassment complaints. Doc. No. 55 at 50. This is because a complaint of harassment
might not surface until after CRST had deducted money it advanced. Id. Under this
scenario, CRST could not have known that it would need to cover those costs and would
only do so once it became aware of the reason for transit and lodging expenses.
As to the third topic, Stastny’s declaration states that DMs have been suspended
or have had their employment terminated in the past for failure to comply with HR
reporting requirements. Doc. No. 55-1 at 13-14. Stastny refers to a DM and a terminal
manager who were discharged for failure to follow HR policies related to timely
forwarding complaints of sexual harassment to HR. Id.
Plaintiffs also take issue with Brueck’s declaration. Carlson testified she assumed
students were paid at a lower rate than a normal CRST co-driver. Doc. No. 35-3 at 43.
CRST submitted Brueck’s declaration, which states:
For new drivers, one of three pay schedules applies depending on whether
the driver has a license and prior experience; a license and no prior
experience; or a license obtained through CRST-funded training and no
experience. Irrespective of which class the driver fits in, pay increases are
triggered based on the length of service with CRST measured according to
calendar dates. Under the pay schedules effective on and after October 15,
2013, a student driver’s pay rate increases one cent per mile following
completion of three months of service. To qualify, the student driver must
be released to the status of co-driver. Nonetheless, the training program
20

only lasts up to 28 days, so there is a negligible chance of a driver remaining
active at CRST and failing to have his or her skills evaluated by the time
three months have lapsed.
Doc. No. 55-1 at 5-6 (emphasis added). CRST also submitted Wolfe’s declaration, which
states that “[u]nless a driver’s training program is extended beyond 90 days there is no
economic detriment to a ‘student driver’ designation versus a ‘co-driver’ designation.”
Id. at 10.
Plaintiffs complain that these declarations are contradictory to Carlson’s
testimony. I disagree. These declarations provide additional information that Carlson
was unable to provide due to her lack of knowledge. However, I acknowledge plaintiffs’
complaint that they did not have the opportunity to cross-examine these declarants on the
information they have now provided. I also note that these declarations are contradictory
to the declarations submitted by plaintiffs. See Doc. No. 35-5 at 6 (“I had to remain in
Miami for several days, with no ability to drive or earn pay, until I was permitted to go
to Virginia to join another truck. I was paid nothing during that time.”); 35-6 at 7 (in
which plaintiff Sellars states that CRST recouped costs of her hotel stay and bus
transportation from her pay and that during the time she had to travel from Riverside,
California to Oklahoma City, Oklahoma, to retrieve her belongings left by the driver who
had harassed her, she received no pay). Only plaintiff Sellars states that the extension of
her training beyond the 28 days affected her pay. However, her training was only
extended to two months. See Doc. No. 35-6 (in which Sellars states that her training was
extended to two months instead of 28 days and that she was still receiving the studentdriver pay rate at two months).
I do not find it necessary to resolve any fact issues on plaintiffs’ claims as long as
plaintiffs have put forth some evidence in support of their claims that would be admissible
at trial. See Blades, 400 F.3d at 567 (noting that factual disputes “may be resolved only
insofar as resolution is necessary to determine the nature of the evidence that would be
sufficient, if the plaintiffs’ general allegations were true, to make out a prima facie case
21

for the class.”). Plaintiffs have done so here. Any further resolution of factual issues is
not appropriate at this time.
B.

Class Certification
1.

Applicable Law

Federal Rule of Civil Procedure 23 governs class certification. Under Rule 23(a),
the party seeking certification must demonstrate:
(1)

the class is so numerous that joinder of all members is impracticable

(2)

there are questions of law or fact common to the class

(3)

the claims or defenses of the representative parties are typical of the
claims or defenses of the class, and

(4)

the representative parties will fairly and adequately protect the interests of
the class.

The proposed class must also satisfy at least one of the three requirements under Rule
23(b). Here, plaintiffs seek certification under Rule 23(b)(3), which requires that “the
questions of law or fact common to class members predominate over any question
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”

Fed. R. Civ. P.

23(b)(3). They alternatively seek certification under a hybrid of Rule 23(b)(2) and Rule
23(b)(3), or issue certification under Rule 23(c)(4). These options will be discussed in
further detail below. The court retains “broad discretion in determining whether to
certify a class, recognizing the essentially factual basis of the certification inquiry and
. . . the district court’s inherent power to manage and control pending litigation.” In re
Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 616 (8th Cir. 2011) (internal
quotations and citations omitted).
Courts are instructed to “conduct a ‘rigorous analysis’ to determine whether the
22

prerequisites for a class action under Rule 23(a) are satisfied.” Rattray v. Woodbury
Cnty., Iowa, 614 F.3d 831, 835 (8th Cir. 2010) (quoting Gen Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 161 (1982)). The “rigorous analysis” may “entail some overlap with the
merits” in evaluating whether plaintiffs have met the Rule 23(a) requirements. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). However, in determining whether to
certify a class action, “the question is not whether the plaintiff or plaintiffs have stated a
cause of action or will prevail on the merits, but rather whether the requirements of Rule
23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). “Rule 23 does
not set forth a mere pleading standard.” Wal-Mart Stores, Inc., 564 U.S. at 350. “A
party seeking class certification must affirmatively demonstrate his compliance with the
Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.” Id. “The Court may also certify a class
as to one or more claims without certifying the entire complaint.” Jenson v. Eveleth
Taconite Co., 139 F.R.D. 657, 659 (D. Minn. 1991) (hereinafter Jenson I) (citing Fed.
R. Civ. P. 23(c)(4)).
2.

Rule 23(a) Requirements
a.

Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members
is impracticable.” Fed. R. Civ. P. 23(a)(1). Relevant factors include: the number of
persons in the proposed class; the size of the individual claims; the inconvenience of
trying individual suits; and any other factor relevant to the practicability of joining all of
the putative class members. Paxton v. Union Nat’l Bank, 688 F.2d 552, 669-60 (8th Cir.
1982). Plaintiffs seek to certify the following Hostile Work Environment Class:
All women who were or are employed as team truck drivers by CRST
Expedited, Inc. at any time from October 12, 2013 to the present, who were
subjected to a hostile work environment based on sex, or, in the alternative,
such separate class or subclasses of such persons as may be appropriate
under the Federal Rules of Civil Procedure.
23

Doc. No. 25-1 at 29-30. Plaintiffs also seek certification of the following Retaliation
Class:
All women who were or are employed as team truck drivers by CRST
Expedited, Inc. at any time from October 12, 2013 to the present, who were
subjected to retaliation in response to their complaints concerning sexual
harassment, or, in the alternative, such separate classes or subclasses of
such persons as may be appropriate under the Federal Rules of Civil
Procedure.
Id. at 30. Plaintiffs further seek certification of California hostile work environment and
retaliation subclasses of such women who experienced the hostile work environment and
retaliation within California. Id. at 29-30.
Plaintiffs allege their proposed Hostile Work Environment Class is sufficiently
numerous because CRST’s PWE charts indicate CRST has documented sexual
harassment complaints from 106 women between October 12, 2013 and February 24,
2016. See Doc. No. 35-14. They further allege that “[a]ssuming a constant rate until
the date of this filing, Human Resources has received over 1425 such complaints.”
Plaintiffs allege this number does not account for complaints that were not passed on to
HR or women who did not complain due to economic repercussions. Plaintiffs claim this
class exceeds 125 individuals, “because many more of the 1893 women who worked as
team drivers between October 12, 2013 and March 2016 will have individual claims for
relief at Phase II, given the impediments CRST creates to a complaint actually reaching
Employee Relations, and given the policy of retaliation that punishes women who
experienced a hostile work environment.” Doc. No. 35-1 at 32.
Plaintiffs allege the proposed Retaliation Class also satisfies the numerosity
requirement because of the overlap between the two classes. In other words, when a
woman complained about harassment while she was on a truck, she was also exposed to
the alleged retaliatory policy by being removed from the truck, incurring lodging and
transit costs and, if she was a student, delaying her training and compensation as a fullytrained driver. Without offering any explanation, plaintiffs estimate this proposed class
24

consists of approximately 140 women. Id. at 33. 10
Plaintiffs argue the proposed California subclasses also satisfy the numerosity
requirement because a “large part of CRST’s business comes in through Riverside, and
nearly all team drivers are likely to pass through the Riverside terminal at some point.”
Id. Plaintiffs do not offer an estimate of the number of women in these proposed
subclasses, stating they “are likely to be somewhat smaller than 140 person each, but
based upon the experiences of the Plaintiffs and other putative class members, many
women will have experienced harassment in California.” Id. at 34.
CRST spends much of its resistance arguing that plaintiffs do not have a legitimate
pattern or practice claim. It repeatedly cites to this court’s decision in E.E.O.C. v. CRST
Van Expedited, Inc., 611 F. Supp. 2d 918 (N.D. Iowa 2009), to suggest plaintiffs cannot
prevail on the merits of their claims. However, the merits of plaintiffs’ claims are not
currently at issue and are different than the claims involved in the 2009 case.11 At this
stage, I must decide only whether plaintiffs have satisfied the Rule 23 requirements to
certify a class.
As to numerosity, CRST argues the particular allegations of the named plaintiffs
limits the putative class because each harassment complaint presents unique

10

It is unclear how plaintiffs have calculated their estimates of class members. While they have
submitted PWE charts (Doc. No. 35-14), they have not offered any evidence explaining these
charts or how they reached estimates of more than 125 women for the Hostile Work Environment
Class and more than 140 women for the Retaliation Class. Indeed, I am unable to follow their
logic that because CRST documented sexual harassment complaints from 106 women between
October 12, 2013 and February 24, 2016, it follows that HR has received over 1,425 complaints
of harassment. It also is not clear how the Hostile Work Environment Class will exceed 125
individuals because “many more of the 1893 women who worked as team drivers between
October 12, 2013 and March 2016 will have individual claims for relief.” Nonetheless plaintiffs’
exhibit (Doc. No. 35-14) does show multiple documented claims of sexual harassment between
October 12, 2013, and February 24, 2016, from approximately 100 women.

11

The EEOC claimed that CRST had a pattern or practice of tolerating sexual harassment of its
female drivers.

25

circumstances. Plaintiffs argue that their proposed classes are based on exposure to
CRST’s patterns and practices that amounted to a hostile work environment and
retaliation and not whether each plaintiff can ultimately prove sexual harassment.
I find that plaintiffs have shown the proposed Hostile Work Environment and
Retaliation Classes to be “so numerous that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1). Plaintiffs have presented PWE charts (Doc. No. 35-14)
demonstrating that approximately 100 women made sexual harassment complaints since
October 12, 2013. Doc. No. 35-14 at 41-58. The “Comments/Corrective Action”
section of these charts provides some indication of how complaints came in, whether the
complaints were corroborated or not and how the co-driver was disciplined, if at all. Id.
at 59-76. Separation of drivers is frequently mentioned throughout the charts. Id. at 5976. Therefore, I find there is a sufficient number of putative members to satisfy each
proposed class.
As for the subclasses, plaintiffs allege the class members experienced “multiple
asserted incidents of tortious conduct” in California. See Doc. No. 65 at 44-45. Plaintiffs
attempt to demonstrate there are enough members for a subclass by citing multiple
exhibits in which class representatives and putative class members state how often they
were in California and describe the type of sexual harassment they experienced at the
Riverside terminal. See Doc. No. 35-1 at 33-34. This is somewhat confusing because
plaintiffs do not seek class certification based on sexual harassment from co-workers, but
rather six policies, patterns or practices that CRST allegedly uses in responding to
complaints of sexual harassment that purportedly amount to a hostile work environment
or retaliation throughout the United States.

Individual instances of harassment in

California are applicable only to the extent they demonstrate that the alleged patterns or
practices was carried out in California. Plaintiffs have failed to make this connection.
Specific accounts of harassment occurring in California do not demonstrate how many
individuals were subject to the claimed patterns and practices that amounted to a hostile
26

work environment and retaliation in California. For this reason, I find plaintiffs have not
proved numerosity as to the proposed California subclasses. The remainder of the
analysis will address only the Hostile Work Environment and Retaliation Classes.
b.

Commonality

“Commonality requires a showing that class members ‘have suffered the same
injury.’” Powers v. Credit Mgmt. Servs., 776 F.3d 567, 571 (8th Cir. 2015) (quoting
Falcon, 457 U.S. at 157). This requirement is satisfied when the legal question “linking
the class members is substantially related to the resolution of the litigation.” DeBoer v.
Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (quoting Paxton, 688 F.2d at
561). “Their claims must depend upon a common contention – for example, the assertion
of discriminatory bias on the part of the same supervisor.” Wal-Mart Stores, Inc., 564
U.S. at 350. “That common contention, moreover, must be of such a nature that it is
capable of classwide resolution – which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Id.

The commonality requirement cannot be satisfied by demonstrating that class

members have all suffered a violation of the same provision of law.” Bennett v. Nucor
Corp., 656 F.3d 802, 814 (8th Cir. 2011). “Plaintiffs cannot ‘simply leap from the
premise that they were the victims of discrimination to the position that others must also
have been.’” Gonzalez v. Brady, 136 F.R.D. 329, 331 (D.D.C. 1991) (quoting Morrison
v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985)).
A class action discrimination case requires plaintiffs to prove by a preponderance
of the evidence that the defendant engaged in a “pattern or practice of unlawful
discrimination in various company policies.” Jenson v. Eveleth Taconite Co., 824 F.
Supp. 847, 860 (D. Minn. 1993) (hereinafter Jenson II) (citing Craik v. Minnesota State
Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984)). To establish a pattern or practice the
discriminatory acts must not be “isolated, insignificant or sporadic” but must be
27

“repeated, routine, or of a generalized nature.” Jenson II, 824 F. Supp. at 860 (citing
Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987)).
The discrimination should be “the company’s standard operating procedure – the regular
rather than the unusual practice.” Jenson II, 824 F. Supp. at 860 (citing Int’l B’hood of
Teamsters v. United States, 431 U.S. 324, 360-62 (1977)). For instance, the pattern or
practice theory could be that the employer “created and maintained a sexually hostile and
abusive work environment . . . because it tolerated . . . individual acts of harassment by
its employees by refusing to take notice of, investigate, and/or discipline the workers
who sexually harassed employees.” E.E.O.C. v. Mitsubishi Motor Mfg. of America,
Inc., 990 F. Supp. 1059, 1069 (C.D. Ill. 1998).
Plaintiffs advocate for a Teamsters approach to their putative class action, which
would bifurcate the case into two phases: liability and damages. See Teamsters, 431 U.S.
at 360-62; Jenson II, 824 F. Supp. at 875-76 (applying modified Teamsters framework
to pattern or practice hostile work environment claim). Phase I would determine whether
(1) CRST created or tolerated a hostile work environment and (2) whether CRST
retaliated against women based on sex for each class. If liability was established, each
case would then proceed to Phase II to determine damages.
A hostile work environment is established if the conduct is “sufficiently severe or
pervasive to alter the conditions of the victim’s employment.” Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 73 (1986). To prove a claim of hostile work environment,
plaintiffs must prove (1) that they are members of a protected group, (2) that they were
subjected to unwelcome sexual harassment, (3) that the harassment was based on sex and
(4) that the harassment affected a term, condition or privilege of her employment.
Henthorn v. Capitol Comm’cns, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004). “The fourth
element involves both objective and selective components.” Id. Some courts applying
the Teamsters approach in this setting find that only the objective component need be
established during Phase I. See Mitsubishi Motor Mfg., 990 F. Supp. at 1078 (“All that
28

the EEOC will have established in Phase I by a finding of pattern or practice is that an
objectively reasonable person would find that, as a whole, the environment within the
company is hostile and that the company was on notice of and was negligent regarding
the systemic problem.”).12 In Phase II, the individual plaintiffs must then prove the
subjective component to demonstrate they are part of the affected class. See Bremiller v.
Cleveland Psychiatric Inst., 195 F.R.D. 1, 25, 26 (2000) (describing the two-phase
approach for class action claims alleging pattern or practice of hostile work environment
as a result of sexual harassment).13 Phase II would also involve individual determinations
of damages. See Bremiller, 195 F.R.D. at 36 (“Whether individual class members are
entitled to damages that resulted from the alleged policy of harassment is relevant only
during the recovery phase of the proceedings and will be determined therein should a
jury first find Defendants liable for tolerating a policy of sexual harassment.”).
To prove a claim of retaliation, plaintiffs must demonstrate (1) that they engaged
in a statutorily-protected activity, (2) that they subsequently suffered an adverse
employment action and (3) a causal connection between the adverse employment action

12

Pattern or practice claims may be brought by the Equal Employment Opportunity Commission
(EEOC) or by a class pursuant to Rule 23(a). The same liability standards apply. See E.E.O.C.
v. Dial Corp., 156 F. Supp.2d 926 (N.D. Ill. 2001) (referencing both EEOC and class actions
in discussing liability).

13

Courts disagree on whether plaintiffs are entitled to a presumption that the conduct at issue
was subjectively unwelcome and whether subjective perceptions are relevant for damages or
liability. Compare Jenson II, 824 F. Supp. at 875-76 (refusing to recognize a presumption of
discrimination from an objectively hostile environment because the employee’s subjective
perception is an essential element of a claim of hostile work environment, which each individual
class member seeking relief must demonstrate to be entitled to damages in Phase II) with
Mitsubishi Motor Mfg., 990 F. Supp. at 1097 (recognizing a rebuttable presumption in which
employer would bear the burden of production to “come forward with evidence to show that the
individual members of the potential class, either in whole or in part, did not subjectively perceive
the environment as hostile” in Phase II). See also Markham v. White, 171 F.R.D. 217, 222
(N.D. Ill. 1997) (“Inquiry into each class member’s subjective perception and response will of
course be relevant to damages.”).

29

and the protected activity. Schoffstall v. Henderson, 223 F.3d 818, 826 (8th Cir. 2000).
If plaintiffs are able to establish these elements, the burden would shift to the defendant
to articulate a legitimate non-discriminatory reason for its adverse employment action.
Plaintiffs would then have the opportunity to show that the non-retaliatory reason
provided was pretext and that the true reason for the adverse action was discrimination.
See Musolf v. J.C. Penney Co., Inc., 773 F.3d 916, 918-19 (8th Cir. 2014) (describing
the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)).
Here, plaintiffs allege that CRST has a pattern or practice of creating and tolerating
a hostile work environment based on the following discriminatory policies:
 Refusing to find complaints of harassment could be corroborated despite the
existence of evidence beyond “he said/she said” accounts
 Failing to impose discipline even when harassment by a driver has been
corroborated
 Tolerating DMs’ failure to act promptly on harassment complaints.
Doc. No. 35-1 at 37. They also allege that CRST has a pattern or practice of retaliating
against women based on the following policies:
 Subjecting women who complained of sexual harassment to “unpaid suspension”
 Imposing transit and lodging costs incurred as a result of women’s harassment
complaints upon the women themselves
 Extending the student driver training of women who complain of sexual
harassment
Id. Carlson has admitted that CRST’s policies regarding Title VII complaints apply to
all CRST employees. See Doc. No. 35-3 at 24. Plaintiffs provide declarations from
each named plaintiff and five proposed class members to demonstrate that these policies
constitute a pattern or practice, rather than individualized responses, to claims of sexual
30

harassment. CRST argues that the class representatives’ individual proof of alleged
discrimination does not justify an inference that CRST maintains a policy of sex
discrimination amounting to a hostile work environment or retaliation.
i.

Corroboration of Complaints

With regard to the allegation that CRST refuses to find corroboration of
harassment complaints absent an eyewitness or admission, CRST states that each instance
of alleged harassment is unique and that it does not maintain a common “policy” in
responding to complaints, whether corroborated or not. CRST maintains that it takes
action even when it finds complaints cannot be corroborated by separating the drivers,
re-educating and reinforcing its policies and designating accused individuals as “male
only.”

In their reply, plaintiffs assert that CRST has admitted it refuses to find

harassment is corroborated absent an admission or eyewitness. Doc. No. 65 at 39.
Carlson’s testimony on this point was as follows:
Q:

If the allegations of harassment concerned behavior that
occurred on the truck while the drivers are there together,
would it ever be possible for you to find that harassment was
corroborated based on evidence other than a third person
eyewitness who was on the truck seeing the harassment?

A:

Not unless there was an admission by the accused individual.

Doc. No. 35-3 at 67-68. Essentially, the parties disagree as to whether this policy is
discriminatory and creates a hostile work environment. That is not the issue here.
Carlson’s testimony provides some evidence that CRST maintains a policy or practice
with regard to “he said/she said” complaints by requiring either an eyewitness statement
or an admission to find that the complaint was legitimate. Whether this amounts to
discrimination that creates a hostile work environment or has a legitimate nondiscriminatory purpose is an issue still in play. For purposes of commonality under Rule
23(a)(2), plaintiffs have produced sufficient evidence. Not only have they presented
31

Carlson’s testimony, but they have also submitted declarations stating CRST refused to
consider other potentially corroborating evidence, such as recordings. See Doc. Nos.
35-10 at 3; 35-22; 35-24. While Carlson disputes plaintiffs’ statements that she refused
to listen to recordings, this is an issue for trial. Plaintiffs’ allegations of a pattern or
practice of creating or tolerating a hostile work environment based on this policy satisfy
the commonality requirement.
ii.

Failure to Impose Discipline

Plaintiffs allege CRST also maintains a pattern or practice of failing to impose
discipline even where harassment is corroborated. Plaintiffs state that CRST’s standard
response to complaints of sexual harassment is to designate the accused driver as “male
only” or “no females.” Plaintiffs allege this designation, which is also used in instances
when the harassment cannot be corroborated, is not disciplinary and demonstrates
tolerance of a hostile work environment.

Carlson testified that “any corroborated

harassment . . . .of a Title VII nature” would result in termination. Doc. No. 35-3 at
72-73. However, plaintiffs point to a couple of seemingly-contradictory instances. On
one occasion, Burrill corroborated inappropriate joking of a sexual nature by a lead
driver. Doc. No. 35 -29 at 3. The lead was not discharged but, instead, was permitted
to finish training another student who was on his truck during the investigation. Id. at 1.
The other example is a male student who admitted he sent a female driver a text message
stating, “Let’s chill, I’m gonna be honest, I want to eat that. If you know what I’m
talking about. Just between me and you.” Doc. No. 35-30. The student also gave the
driver a false identity, but later admitted he had done so because he thought she might
tell someone. Id. The student’s employment was not terminated. Doc. No. 35-31.14

14

Plaintiffs fail to mention that according to the investigation form, the student reported that the

32

Plaintiffs also complain that lead drivers are not sufficiently disciplined when
harassment is corroborated. In the above example involving inappropriate joking by a
lead driver, the safety supervisor stated that the lead driver would be allowed to finish
his current student’s training, but his lead certification would be pulled for 90 days. Doc.
No. 35-29 at 1. However, Brian Brejcha, a CRST Operations Manager, ultimately
decided that the only action required would be for the lead driver to “ha[ve] a face to
face conversation with Laura/Michael/Jenny regarding what it means and the expectations
of being a lead driver [ ] at CRST.” Id. Brejcha stated, “[b]ased on their findings in the
conversation they will give the final determination if he understands what it takes to be a
trainer for CRST and meets the expectations needed.” Id. In another instance, HR
corroborated that a lead driver talked about sex with his girlfriends and friends in front
of a female student. Doc. No. 35-32. His team preference was changed to “male only,”
he was required to complete PWE training again and he was given a verbal warning not
to discuss sexual topics in the presence of a student. Id. Plaintiffs point to a third instance
where a lead driver admitted to having “pornographic books and magazines laying around
the truck” and listening to “uncensored radio in which [it] talked about penis, breasts,
sex. . .” Doc. No. 35-33. This driver was routed to Cedar Rapids for counseling by the
safety team and was recommended for PWE training again. Id. His team preference
was also changed to male only. Id.
CRST argues that discipline imposed is commensurate with culpability. It states
that plaintiffs merely describe individual examples of alleged harassment, assert that those
allegations were corroborated and argue that CRST should have imposed greater
discipline. CRST argues this does not demonstrate a policy of CRST, but plaintiffs’ own

driver made advances to him by giving him her phone number and saying she was looking for a
guy friend. Doc. No. 35-31 at 2. He was directed to have no further contact with the driver,
his team preference was changed to male only and he was advised that if another allegation of
this nature was brought forward, it could be grounds for discharge. Id. at 3.

33

assessment of a unique fact pattern of alleged harassment. CRST asserts that plaintiffs
assume all allegations of harassment are legitimate or that CRST’s investigations “always
produce sufficient information upon which to base a decision as important as deciding
whether an employee should be fired for misconduct.” Doc. No. 55 (citing CRST Van
Expedited, Inc., 611 F. Supp. 2d at 955). They argue this issue cannot be resolved on a
class basis because it depends on individual circumstances and no common contention or
common answer exists.
Essentially, the parties disagree as to whether the alleged pattern or practice exists.
However, it is not necessary to resolve at this time the question of whether CRST does
or does not maintain a pattern or practice of failing to discipline drivers when harassment
is corroborated. While both parties intend to rely on anecdotal evidence to demonstrate
that such a pattern or practice does or does not exist, I find that the overall claim and its
associated issues satisfies the commonality requirement. See Radmanovich v. Combined
Ins. Co. of America, 216 F.R.D. 424, 432 (N.D. Ill. 2003) (finding common issues
existed such as whether a pattern or practice of sexual discrimination exists, whether
plaintiff’s statistical evidence established such a pattern or practice, defendant’s
knowledge of such a pattern or practice of discrimination and defendant’s preventative or
remedial actions with regard to such discrimination).
iii.

Failure to Discipline DMs

Plaintiffs argue that CRST creates or maintains a hostile work environment based
on its pattern or practice of failing to adequately discipline DMs for failing to act promptly
in responding to complaints of sexual harassment.

CRST notes that plaintiffs again rely

on specific anecdotes to establish this pattern or practice. They also note that “promptly”
is a subjective term that must be assessed based on actual circumstances and in relation
to the severity of the specific instance of alleged harassment. CRST explains that upon
receipt of a complaint of sexual harassment, it first ensures the driver is safe and makes
34

a fact-dependent assessment of when and how the drivers should be separated. Upon
receiving the report, HR then begins an investigation. CRST contends that DMs’ actions
in responding to complaints depend on when and how the complaints are submitted and
the substance of the complaint. It argues that its response to complaints is too tailored to
individual circumstances to satisfy the commonality requirement. In their reply, plaintiffs
assert that their submission of CRST records shows that DMs pressured women to stay
on trucks and failed to take action in response to complaints. They allege DMs have not
been punished for these actions.
Again, the parties disagree on whether plaintiffs can establish the existence of this
alleged pattern or practice, whether it is discriminatory and whether it contributes to a
hostile work environment. Plaintiffs’ reliance on anecdotal evidence to establish a pattern
or practice does not defeat commonality. See Catlett, 828 F.2d at 1265 (noting that either
statistical or anecdotal evidence may be used to establish a pattern or practice and noting
“a class claim may succeed despite employer rebuttal of alleged instances of
discrimination involving class representatives and testifying class members.”); see also
Fed. R. Civ. P. 23(a)(2) (noting commonality requires plaintiffs to show “there are
questions of law or fact common to the class”). Here, the class will attempt to prove,
through a series of examples, that CRST had a pattern or practice in responding to DMs
who failed to act promptly in responding to complaints of sexual harassment and that this
pattern or practice, combined with the others plaintiffs have described, created an
objectively hostile work environment.

If a particular pattern or practice cannot be

established, as CRST alleges, then that pattern or practice will not be considered in
assessing whether CRST contributed to a hostile work environment.
In sum, I find that plaintiffs have established commonality with regard to their
claim that CRST creates or tolerates a hostile work environment through the alleged
patterns and practices.
35

iv.

Unpaid Suspension

Plaintiffs allege that CRST retaliates against women complaining of sexual
harassment by subjecting them to “unpaid suspension” in requiring them to get off the
truck upon making a complaint.

CRST argues that in responding to a harassment

complaint, safety is its top priority and that individual circumstances determine who gets
off the truck and who stays. It notes that owner-operators cannot be separated from their
own trucks and students cannot drive a truck alone. CRST contends that plaintiffs have
not offered sufficient proof that the assessment of who to remove from the truck is
unrelated to non-discriminatory factors such as licensing and truck ownership. Plaintiffs
argue they do not have to prove why female drivers were removed from the truck at this
stage. I agree. CRST’s argument goes to the merits of plaintiffs’ claim. Plaintiffs have
provided at least some evidence to support their claim that this is a pattern or practice of
CRST. Carlson testified as follows:
During the training that I have conducted a couple of times a year, it is
communicated that the accuser is the individual that gets off the truck
because we want to make sure that they are in a safe location, a safe
environment. If the accuser – Let’s see – If the accuser is the lead driver,
then the accuser has to stay on the truck because the student can’t remain
on the truck and drive the truck because they are not qualified yet. So in
that particular case the student would have to get off the truck. But in the
majority of cases, it would be the accuser that gets off the truck. So we
engage in a dialogue with the driver managers when these situations arise
and if they have questions, they call us on the telephone, whether it be me
or any of our employee relations representatives. And we reaffirm that the
accuser needs to get off the truck, we need to get them a hotel and cab, then
we need to do so immediately so that we can begin the investigation.
Doc. No. 35-3 at 55-56. Plaintiffs have also submitted declarations describing instances
in which female drivers were instructed to get off the truck after complaining of sexual
harassment, even when they specifically asked to stay on the truck and for the alleged
male harasser to be removed. See Doc. Nos. 35-5, 35-6, 35-7, 35-8. I find that this
evidence is sufficient to demonstrate commonality.
36

Whether this amounts to

discriminatory retaliation is a question for another day.
v.

Transit and Lodging Costs

With regard to whether female drivers were required to pay lodging and transit
costs upon getting off the truck, CRST notes that its policy regarding these costs has
changed during the putative period. However, it contends these costs were always
reimbursable, as noted in Stastny’s declaration. Moreover, CRST contends that plaintiffs
have not shown whether a significant number of putative class members were separated
from their truck and subject to these costs. Plaintiffs argue that they do not have to
demonstrate that all putative class members had these costs imposed on them at this stage
of the case.
The parties present conflicting evidence as to whether the lodging and transit
expenses were reimbursable, if so, and under what circumstances. CRST’s evidence
suggests that prior to the new policy in 2015, there was a process by which lodging and
transit expenses were paid by CRST (either through vouchers or advances to the driver)
and then recouped by CRST by deducting that advance from the driver’s paycheck.
Those paycheck deductions could then be reimbursed upon notice that the advance was
made in relation to a sexual harassment complaint and upon submission of receipts.
Plaintiffs’ declarations state lodging and transit costs were deducted from their paychecks,
but never reimbursed.
Again, the parties’ arguments go to the merits of whether a pattern or practice
exists. However, I find that even if there was a pattern or practice, it would not be
sufficiently common to all putative class members. First, both parties acknowledge that
more than one type of policy applies to the proposed class (pre-July 2015 or post-July
2015). Second, application of any type of policy appears to be very dependent on
individual circumstances, such as where the driver got off the truck. Third, these costs
flow from the previously-alleged retaliatory policy, making this an issue more appropriate
37

for damages rather than liability. Due to the factual disparities, I find that plaintiffs have
not demonstrated a policy, pattern or practice to which the class members would have
been commonly subjected regarding lodging and transit costs. However, this issue may
be relevant in individual calculations of damages in Phase II as a result of another
established pattern or practice of discriminatory retaliation.
vi.

Extension of Student Training

Plaintiffs argue that CRST maintains a policy or practice of retaliation against
female student drivers reporting sexual harassment because requiring a student to exit the
truck extends her training beyond the regular 28 days. They argue this deprives them of
pay at the higher co-driver rate and also prevents them from being able to apply for jobs
outside CRST for a longer period of time. CRST argues that a student’s ability to start
earning at a higher pay rate depends on the passage of a certain amount of time, not the
date training is completed. It relies on Brueck’s declaration, which provides that the first
pay increase is triggered by the passage of three months of employment, not the
completion of driver training. Doc. No. 55-1 at 5-6. The only change that occurs at the
completion of training is the designation of “student” to “co-driver.” Wolfe’s declaration
clarifies that “[u]nless a driver’s training period is extended beyond 90 days there is no
economic detriment to a ‘student driver’ designation versus a ‘co-driver’ designation.”
Id. at 10.
Plaintiffs contend defendant’s arguments are directed at the merits of the claim,
not commonality. I agree. However, similar to the lodging and transit costs, I find that
this issue does not meet the commonality requirement because it is far too dependent on
individual circumstances.

First, it would only apply to student drivers.

Second,

application of any policy would vary depending on how long the training was extended
and the extent of economic detriment (if any). In other words, any retaliatory effect of
the policy would not be common among the class. Again, this issue would be more
38

appropriate in calculating individual damages as a result of another established pattern or
practice of retaliation.
To conclude, I find that plaintiffs have established commonality with regard to
their claim that CRST retaliates against female drivers making sexual harassment
complaints through its alleged pattern or practice of requiring them to exit the truck,
unless the complainant was an owner-operator or lead driver. All other “patterns or
practices” plaintiffs have alleged are too dependent on the individual circumstances
involved and, in any event, would be consequential to the other alleged policy.
My commonality findings have no bearing on the issues of whether these policies,
patterns or practices exist or are discriminatory and amount to a hostile work environment
or retaliation. I find only that there are common contentions among the class members
that would allow for class resolution.
c.

Typicality

Typicality requires that the claims of the representative parties be typical of the
claims of the class. Fed. R. Civ. P. 23(a)(3). As such, “a class representative must be
part of the class and possess the same interest and suffer the same injury as the class
members.” Falcon, 457 U.S. at 156. In Falcon, the Supreme Court provided the
following guidance on the typicality requirement:
Conceptually, there is a wide gap between (a) an individual’s claim that he
has been denied a promotion on discriminatory grounds, and his otherwise
unsupported allegation that the company has a policy of discrimination, and
(b) the existence of a class of persons who have suffered the same injury as
that individual, such that the individual’s claim and the class claims will
share common questions of law or fact and that the individual’s claim will
be typical of the class claims. For [plaintiff] to bridge that gap, he must
prove much more than the validity of his own claim.
Falcon, 457 U.S. at 157.
CRST compares plaintiffs’ claims to the claims in Elkins. In Elkins, the plaintiffs
39

alleged they were subjected to suggestive or lewd comments and gestures and/or physical
grabbing and groping as well as unwanted sexual advances. Elkins v. American Showa,
Inc., 219 F.R.D. 414, 425 (S.D. Ohio 2002). The court stated “this is not a case where
a named plaintiff who proved her own claim would prove anyone else’s.” Id. It reasoned
that plaintiffs’ claims did not arise “from the same event or practice or course of conduct
that gives rise to the claims of other class members.” Elkins, 219 F.R.D. at 425. CRST
argues plaintiffs have no basis to assert that each female employee who reported sexual
harassment was subject to the same alleged experiences of the class representatives.
I agree with defendants to the extent that claims involving payment of lodging and
transit costs and extension of student training are not typical to the entire class for the
same reasons they are not common among the class, as described above. However, I do
find that the following of plaintiffs’ claims are typical to the class:
A.

CRST created or tolerated a hostile work environment by
(1)
(2)

failing to discipline drivers after complaints were
corroborated and

(3)
B.

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

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

CRST retaliated against women making sexual harassment
complaints by requiring them to exit the truck

Such pattern or practice claims would apply to each of the respective classes if proved.15
As such, I find that these claims satisfy the typicality requirement.

15

While plaintiffs’ hostile work environment claim requires proof that each plaintiff subjectively
perceived the work environment to be hostile, that issue can be left for individual determination
in Phase II. See Jenson II, 824 F. Supp. at 875-76 (refusing to recognize a presumption of
discrimination from an objectively hostile environment because the employee’s subjective
perception is an essential element of a claim of hostile work environment, which each individual
class member seeking relief must demonstrate to be entitled to damages in Phase II).

40

d.

Adequacy of Representation

Under Rule 23(a)(4), the class representatives and class counsel must fairly and
adequately protect the interests of the class.

“In deciding this question, the Court

considers (a) whether the class representatives and their counsel will competently and
vigorously pursue the action, and (b) whether differences exist between the interest of
the class representatives and the putative class.” Morgan v. United Parcel Serv., 169
F.R.D. 349, 354 (E.D. Mo. 1996). With regard to the first inquiry, plaintiffs satisfy this
element where they “share the same interests as those of the putative class[, which] shared
interest insures the vigorous prosecution of the action by the named plaintiffs.” Jenson
I, 139 F.R.D. at 665 (citing Bishop v. Committee on Professional Ethics, Inc., 686 F.2d
1278, 1289 (8th Cir. 1982)). Plaintiffs have submitted PWE charts demonstrating that
CRST found their complaints were not corroborated. See Doc. No. 35-14 at 64-65, 67.
They have also submitted CRST documents addressing how drivers and DMs were
disciplined (or not disciplined) regarding corroborated complaints and failures to
promptly address sexual harassment complaints.

Doc. Nos. 35-29 through 35-35.

Finally, they presented declarations demonstrating they were required to get off the truck
following their reports of sexual harassment. Doc. Nos. 35-5, 35-6 and 35-8. I find that
plaintiffs share the interests of both putative classes and will adequately represent the
class members.
With regard to whether counsel will also competently and vigorously pursue the
action, I note that under Rule 23(g)(1)(A), I must consider the following in appointing
class counsel:
(i)

the work counsel has done in identifying or investigating
potential claims in the action;

(ii)

counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;

(iii)

counsel’s knowledge of the applicable law; and

(iv)

the resources that counsel will commit to representing the
41

class.
Fed. R. Civ. P. 23(g)(1)(A). Plaintiffs’ counsel, Friedman & Houlding LLP, represents
that it has been involved in multiple class action lawsuits, including class actions
involving allegations of sexual harassment and hostile work environment. Doc. No. 351 at 48. It also represents that local counsel, Thomas Newkirk, is highly experienced in
this field, having represented plaintiffs in employment matters for more than two decades.
I have no reason to believe that plaintiffs’ counsel would not adequately represent the
putative classes.
The second inquiry under Rule 23(a)(4) “serves to uncover conflicts of interest
between named parties and the class they seek to represent.” Amchem Prods, Inc. v.
Windsor, 521 U.S. 591, 625 (1997). Plaintiffs have proposed two classes: a Hostile
Work Environment Class and a Retaliation Class. I find no conflict within each of these
classes or between them. Because plaintiffs propose a Teamsters approach, in which
liability would be determined at Stage I and damages at Stage II, I do not find that the
class members will have antagonistic goals in resolving their claims.
In sum, I find that plaintiffs have satisfied each Rule 23(a) requirement for the
Hostile Work Environment and Retaliation Classes. I must now determine whether the
classes meet at least one of the Rule 23(b) requirements.
3.

Rule 23(b) Requirements

Plaintiffs seek to certify their proposed classes under Rule 23(b)(3), or in the
alternative, as a hybrid action under both Rule 23(b)(2) and 23(b)(3). Rule 23(b)(3)
requires a finding “that the questions of law or fact common to class members
predominate over any questions affecting only individual members and that a class action
is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Powers, 776 F.3d at 569. Rule 23(b)(2) is appropriate when “the party
opposing the class has acted or refused to act on grounds that apply generally to the class,
42

so that final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.”
a.

Rule 23(b)(3)

Rule 23(b)(3) is composed of two requirements: predominance and superiority.
Common questions must “predominate over any questions affecting only individual
members” and class resolution must be “superior to other available methods for the fair
and efficient adjudication of the controversy.” Amchem Prods., Inc., 521 U.S. at 615.
The rule lists the following factors are pertinent to these findings:
(A)

the class members’ interests in individually controlling the
prosecution or defense of separate actions;

(B)

the extent and nature of any litigation concerning the controversy
already begun by or against class members;

(C)

the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and

(D)

the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).
i.

Predominance

“The predominance inquiry ‘tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.’” Elkins, 219 F.R.D. at 419 (quoting
Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 486 (S.D. Ohio 2001)). It is
not satisfied if “individual questions . . . overwhelm the questions common to the class.”
Ebert v. General Mills, Inc., 823 F.3d 472, 478-79 (8th Cir. 2016) (quoting Amgen Inc.
v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013)). “An individual
question is one where ‘members of a proposed class will need to present evidence that
varies from member to member,’ while a common question is one where ‘the same
43

evidence will suffice for each member to make a prima facie showing [or] the issue is
susceptible to generalized, class-wide proof.” Ebert, 823 F.3d at 479 (quoting Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)).

With regard to

predominance, the Eighth Circuit has stated:
When determining whether common questions predominate, a court must
conduct a limited preliminary inquiry, looking behind the pleadings, but
that inquiry should be limited to determining whether, if the plaintiffs’
general allegations are true, common evidence could suffice to make out a
prima facie case for the class. While limited in scope, this analysis should
also be rigorous.
In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d at 618 (internal citations and
quotation marks omitted). “In conducting this preliminary inquiry, however, the court
must look only so far as to determine whether, given the factual setting of the case, if the
plaintiffs[’] general allegations are true, common evidence could suffice to make out a
prima facie case for the class.” Blades, 400 F.3d at 566. The predominance requirement
is “far more demanding” that Rule 23(a)’s commonality requirement. Amchem, 521 U.S.
at 623-24. “In contrast to Rule 23(a)(2), the issue of predominance under Rule 23(b)(3)
is qualitative rather than quantitative.” Ebert, 823 F.3d at 478.
CRST argues that individualized issues predominate over any common issues.
They contend that whether certain modifications to CRST policies are necessary must be
measured against particular allegations. For instance, it notes that there may be a putative
class member who filed a complaint about language used by her co-driver, but had no
desire for either driver to get off the truck. CRST states that even if plaintiffs are
“permitted to split off a portion of their liability showing, the volume of plaintiff-specific
hostile work environment and retaliation determinations remaining would undo any
purported efficiency gained.” Doc. No. 55 at 66.
I have found plaintiffs have met the commonality requirement under Rule 23(a)
with regard to the following issues:
A.

CRST created or tolerated a hostile work environment by
44

(1)
(2)

failing to discipline drivers after complaints were
corroborated and

(3)
B.

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

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

Retaliated against women making sexual harassment
complaints by requiring them to exit the truck

The evidence plaintiffs intend to rely on for these two claims includes testimony from
Carlson and anecdotal evidence in the form of testimony from individual plaintiffs subject
to the alleged policies, patterns or practices.

Plaintiffs advocate for the Teamsters

approach such that liability for each claim would be established in Phase I, and individual
damages established at Phase II.16 The potential need for individual damage calculations
at a later stage is typically not decisive of the predominance factor. See William B.
Rubenstein, Newberg on Class Actions, § 4:54 (5th ed. Dec. 2016 Update) (“[C]ourts in
every circuit have uniformly held that the 23(b)(3) predominance requirement is satisfied
despite the need to make individualized damage determinations and a recent dissenting
decision of four Supreme Court Justices characterized the point as ‘well nigh universal’”).
Some courts have found that class action hostile work environment claims do not
meet the predominance requirement. See Elkins, 219 F.R.D. at 425-26 (noting that even
16

See also E.E.O.C. v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 936-37 (N.D. Iowa
2009) (describing the modified burden-shifting approach of Jenson II, which was approved by
the Eighth Circuit). The modified burden-shifting approach requires the plaintiffs to bear the
burden of proving their prima facie case of a hostile work environment claim during the liability
phase of the litigation. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1299 (8th Cir.
1997). Then, “[i]n the damages phase, the plaintiffs still were required to show they were as
affected by that hostile environment as a reasonable woman would be affected.” Id. at 1300.
Once that showing is made, “the burden of proof shift[s] to [the defendant] to show that it was
more likely than not that their decision not to return to work was not the product of the hostile
work environment.” Id. As applied here, the modified burden-shifting analysis would require
plaintiffs to prove at Phase II that they were subjectively affected by the hostile work
environment. The burden would then shift to CRST to prove that they were not affected by the
hostile environment.

45

if plaintiffs were able to establish that the plant-wide environment was objectively hostile,
“issues as to whether a given individual perceived the environment to be hostile would
remain.”); Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 672-73 (N.D. Ga.
2001) (noting that individual issues predominated in pattern-or-practice case alleging
discrimination and hostile work environment because each plaintiff would need to show
she suffered adverse consequences, defendant would have opportunity to show nondiscriminatory reason for adverse consequences, each employee would have to show she
perceived the environment to be abusive, and compensatory and punitive damages would
require individualized proof). These cases primarily rely on the individualized findings
that would be required at Phase II – (1) that plaintiffs subjectively perceived the
environment to be abusive and (2) damages. These factors are not dispositive to class
certification in the Eighth Circuit, as both of those requirements were present in Jenson,
which was maintained as a class action. See Jenson, 824 F. Supp. at 885 (“only one-half
of the required showing need be made in the liability phase of a class action lawsuit:
would the ‘reasonable woman’ consider the conduct sufficiently severe or pervasive to
alter the conditions of employment and create an abusive work environment.”).
Bifurcating each class action into two phases avoids the possibility that
individualized questions will predominate common questions. This approach has been
used by numerous courts. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d
124, 141 (2d Cir. 2001) (“There are a number of management tools available to a district
court to address any individualized damages issues that might arise in a class action,
including: (1) bifurcating liability and damage trials with the same or different juries; (2)
appointing a magistrate judge or special master to preside over individual damages
proceedings; (3) decertifying the class after the liability trial and providing notice to class
members concerning how they may proceed to prove damages; (4) creating subclasses;
or (5) altering or amending the class.”), overruled on other grounds by In re Initial Pub.
Offerings Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006); In re Whirlpool Corp. Front46

Loading Washer Products Liability Litig., 722 F.3d 838, 860 (6th Cir. 2013) (finding the
predominance requirement satisfied when the district court certified only a liability class
and reserved all damages issues for individual determination); Butler v. Sears, Roebuck
and Co., 727 F.3d 796, 801 (7th Cir. 2013) (“If the issues of liability are genuinely
common issues, and the damages of individual class members can be readily determined
in individual hearings, in settlement negotiations, or by creation of subclasses, the fact
that damages are not identical across all class members should not preclude class
certification.”); Allapattah Servs. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003)
(“numerous courts have recognized that the presence of individualized damages issues
does not prevent a finding that the common issues in the case predominate”); Ellis v.
Costco Wholesale Corp., 285 F.R.D. 492, 539 (N.D. Cal. 2012) (concluding that
individualized hearings required for damages are narrow in scope and significance when
compared to the classwide issues subject to generalized proof.).17
For each of the two classes proposed by plaintiffs, I find that the common issues
as to liability will predominate over individualized issues. On the subjective element of
17

This issue has been subject to much debate following the Supreme Court’s decision in Comcast
Corp. v. Behrend, 133 S. Ct. 1426 (2013). That case involved current and former cable
subscribers who sought damages for alleged violations of federal antitrust laws. Id. at 1431.
The district court certified the class under Rule 23(b)(3) on all issues, including damages
calculations. The Supreme Court reversed, finding that the district court erred in certifying the
class because questions of individual damage calculations would overwhelm questions common
to the class. Id. at 1433. Since Comcast, courts have taken varying approaches to motions for
class certification when individualized damages questions are present. Courts that have certified
classes have distinguished Comcast on the premise that the plaintiffs in Comcast did not seek to
bifurcate the case into liability and damages stages and note that the Court’s ruling is silent as to
that approach. See Houser v. Pritzker, 28 F. Supp. 3d 222, 253-54 (S.D.N.Y. 2014) (discussing
Comcast and finding that class could be certified under Rule 23(b)(2) for purposes of determining
liability and affording injunctive relief, but could not be certified for purposes of resolving
damages.); In re Whirlpool Corp. Front-Loading Washer Products Liability Litig., 722 F.3d at
860 (“Where determinations on liability and damages have been bifurcated, see Fed. R. Civ. P.
23(c)(4), the decision in Comcast – to reject certification of a liability and damages class because
plaintiffs failed to establish that damages could be measured on a classwide basis – has limited
application).

47

the hostile work environment claim and damages as to both claims, however,
individualized questions will predominate. Therefore, the classes will be certified only
as to the liability question in Phase I. See Fed. R. Civ. P. 23(c)(4) (“When appropriate,
an action may be brought or maintained as a class action with respect to particular
issues.”).
ii.

Superiority

Superiority tests whether class resolution would be “superior to other available
methods for the fair and efficient adjudication of the controversy.” Amchem, 521 U.S.
at 615. “In deciding whether class certification will achieve substantial efficiencies, the
proper comparison is not between class litigation and no litigation at all, but between
class litigation and actions conducted separately by individual class members.” United
States v. City of New York, 276 F.R.D. 22, 49 (E.D.N.Y. 2011).
Under plaintiffs’ proposed approach of bifurcating the trial, liability would be
determined in one phase and damages in the other. There would be a Hostile Work
Environment Class limited to the issue of whether CRST created or maintained an
objectively hostile work environment based on the three alleged patterns or practices.
There would also be a Retaliation Class limited to the issue of whether CRST retaliated
against female drivers based on a pattern or practice of requiring the harasser to exit the
truck. Class resolution of these issues will promote efficiency because the evidence
offered in support of liability as to each class will need to be presented only once. At the
same time, class members who wish to opt out of the class may do so under Rule
23(c)(2)(B) and pursue their own actions.
For these reasons, I find that the Hostile Work Environment Class and the
Retaliation Class may both be certified under Rule 23(b)(3).

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b.

Rule 23(b)(2)

Plaintiffs alternatively request that a hybrid class be certified under Rule 23(b)(2)
and Rule 23(b)(3). They assert that a hybrid class consists of two stages: (1) resolving
the liability issue under the procedures of Rule 23(b)(2) and (2) resolving the issue of
damages using the “opt out” procedures established for Rule 23(b)(3) actions. “Class
certification under Rule 23(b)(2) is proper only when the primary relief sought is
declaratory or injunctive.” In re St. Jude Med., Inc., 425 F.3d 1116, 1121 (8th Cir.
2005). In other words, it applies when “the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Ebert,
823 F.3d at 480.

Plaintiffs argue “[a]n injunction in the instant case requiring

investigation and disciplinary policies and procedures designed to respond adequately to
complaints of sexual harassment – incorporating the suggestions of the head of Employee
Relations, ignored by other CRST management, for example – and eliminating CRST’s
policies of retaliation, would be an appropriate use of Rule 23(b)(2).” Doc. No. 35-1 at
57. Plaintiffs further argue that this would “free the Court to address the question of
damages, for those women who were injured as a result of the prior policies.” Id.
The Eighth Circuit has acknowledged that the use of hybrid certification is an
available approach that is gaining ground in class action suits. See Ebert, 823 F.3d 480
(citing Newberg on Class Actions § 4:38). This is similar to the approach plaintiffs
advocate in referencing Teamsters. See Newberg on Class Actions § 4:38 (stating one of
the primary approaches to hybrid certification is to “bifurcate the litigation into liability
and damage phases” beginning with a determination of defendant’s liability by certifying
a (b)(2) class for the liability phase or using issue certification under Rule 23(c)(4) and
then deciding whether to certify a (b)(3) class for money damages or an additional (b)(2)
class for final injunctive relief). However, as the Eighth Circuit pointed out in Ebert,
this type of certification is insufficient if the class does not meet the Rule 23(b)(2)
49

requirements due to a lack of cohesiveness or “when each class member would be entitled
to an individualized award of monetary damages.” Ebert, 823 F.3d at 480.
I find that a hybrid action under Rule 23(b)(2) and Rule 23(b)(3) is not appropriate
here. Plaintiffs seek both injunctive relief and monetary damages. Moreover, plaintiffs’
description of the injunctive relief they seek is not entirely clear. Bifurcating the cases
into liability and damages phases does not require hybrid certification under both Rules
23(b)(2) and (b)(3). Rather, the classes may be appropriately certified under Rule
23(b)(3) for the liability phases and remain decertified for the damages phases. See Brand
v. Comcast Corp., Inc., 302 F.R.D. 201, 223 (N.D. Ill. 2014) (declining to certify a
hostile work environment class under Rule 23(b)(2) because plaintiffs sought monetary
damages along with injunctive relief, but approving certification under Rule 23(b)(3));
Butler v. Sears Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) (“[A] class action
limited to determining liability on a class-wide basis, with separate hearings to determine
– if liability is established – the damages of individual class members, or homogenous
groups of class members, is permitted by Rule 23(c)(4).”). For these reasons, the classes
will not be certified as a hybrid class under Rule 23(b)(2) and (b)(3).
4.

Rule 23(c)(4)

Plaintiffs alternatively seek certification pursuant to Rule 23(c)(4), which provides
“[w]hen appropriate, an action may be brought or maintained as a class action with
respect to particular issues.” I have found that out of the six “policies, patterns or
practices” plaintiffs claim contributed to a hostile work environment or were retaliatory,
four were sufficiently common to allow for class-wide resolution. On plaintiffs’ hostile
work environment claim, I found that their allegation that each of the alleged policies,
pattern or practices was sufficiently common. On plaintiffs’ retaliation claim, I found
that their allegation that CRST’s policy, pattern or practice of requiring the female
complainant of sexual harassment to exit the truck, except where the she was a lead driver
50

or an owner-operator, was also sufficiently common. If plaintiffs insisted on trying the
remaining two issues (involving transit and lodging costs and extension of student
training) as part of the class, the predominance requirement would not be met. However,
plaintiffs have alternatively requested issue certification pursuant to Rule 23(c)(4). I find
that this rule provides the requisite authority to certify the classes with respect to the
identified common issues.
The Second Circuit considered this issue in In re Nassau Cnty. Strip Search Cases,
461 F.3d 219, 221 (2d Cir. 2006), holding that “a court may employ Rule 23(c)(4)(A)
to certify a class as to an issue regardless of whether the claim as a whole satisfies the
predominance test.” The court found the following issues presented common questions:
“(1) whether defendants maintained a blanket strip search policy; (2) whether that policy
was unconstitutional; and (3) whether some or all defendants may be held liable.” Id. at
222-23. The issues that it determined were individualized and predominated were: “(1)
whether subordinate Jane and John Doe defendants might escape liability in some cases,
because, notwithstanding the blanket policy, they had reasonable suspicion to search
certain detainees; (2) the existence of proximate causation for each alleged injury; and
(3) compensatory and punitive damages calculations.” Id. at 223.
As acknowledged in Nassau County, the Ninth and Fourth Circuits approve of this
approach. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)
(“[e]ven if the common questions do not predominate over the individual questions so
that class certification of the entire action is warranted, rule 23 authorizes the district
court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and
proceed with class treatment of these particular issues.”); Gunnells v. Healthplan Servs.,
Inc., 348 F.3d 417, 439 (4th Cir. 2003) (“subsection 23(c)(4) should be used to separate
‘one or more’ claims that are appropriate for class treatment, provided that within that
claim or claims (rather than within the entire lawsuit as a whole), the predominance and
all other necessary requirements of subsections (a) and (b) of Rule 23 are met.”). The
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Fifth Circuit does not. See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th
Cir. 1996) (“[t]he proper interpretation of the interaction between subdivisions (b)(3) and
(c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of
(b)(3) and that (c)(4) is a housekeeping rule that allows court to sever the common issues
for a class trial.”). The Eighth Circuit has acknowledged the circuit split on this issue
without ruling on it. See In re St. Jude Medical, Inc., 522 F.3d 836, 841 (8th Cir. 2008)
(noting that the district court did not limit its class certification to specific issues that may
be amenable to class-wide resolution, but suggesting that even if it had, it would not have
been appropriate because it would not increase the efficiency of the litigation and
individual issues would continue to predominate).
As explained above, I find that plaintiffs have presented two common issues
(through four alleged patterns or practices) that are appropriate for class resolution. As
such, I will certify the designated classes with respect to only those issues pursuant to
Rule 23(c)(4)(A).
5.

Rules Enabling Act

CRST argues the classes may not be certified due to limitations of the Rules
Enabling Act. The Rules Enabling Act requires that rules of procedure “shall not
abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). CRST contends
that if the classes are certified, it will be deprived of the opportunity to “mount a defense
that its policy appropriately addressed fact-specific determinations as to alleged
harassment of each and every class member.” Doc. No. 55 at 71. It contends that for
each putative class member who filed an internal complaint, CRST is “entitled to present
evidence and prove that its policy effectively addressed the concerns raised.” Id. CRST
alleges that bifurcation does not alleviate these concerns because the liability would be
based on CRST’s remedial efforts following particular instances of alleged harassment
that caused the policies to operate in different ways. It points out that this court previously
52

dismissed a contention that CRST maintained a “‘standard operating procedure’ to
tolerate sexual harassment.” CRST Van Expedited, Inc., 611 F. Supp. 2d at 952.
CRST’s argument misconstrues the nature of plaintiffs’ claims.

Individual

instances of harassment are not at issue here, as they were in the prior case. Plaintiffs’
Hostile Work Environment Class seeks to prove that CRST maintains an objectively
hostile work environment by way of the three identified policies. Plaintiffs intend to
prove the existence of the three policies through anecdotal evidence. CRST will be able
to cross-examine plaintiffs and any class members on this evidence.

If liability is

established, then during Phase II individual members will have to prove their work
environments was subjectively hostile based on any of the policies that were determined
to contribute to an objectively hostile environment and damages.
With regard to the Retaliation Class, plaintiffs seek to prove that CRST’s policy
of requiring female drivers to get off the truck upon reporting a sexual harassment
complaint amounted to discriminatory retaliation.

Plaintiffs also intend to rely on

anecdotal evidence, which CRST will be again able to address. Moreover, the burden
will shift to CRST to prove a non-discriminatory reason for that policy (if it is determined
to exist), which it can do through anecdotal evidence. Of course, the case will proceed
to Phase II, addressing individual damages, only if the class proves that CRST did
maintain a pattern or practice of discriminatory retaliation against female drivers who
complained of sexual harassment. Other federal courts have permitted retaliation claims
to proceed as class actions. See Employees Committed for Justice v. Eastman Kodak Co.,
407 F. Supp. 2d 423, 432-33 (W.D.N.Y. 2005) (describing other pattern or practice
claims of retaliation). For these reasons, I find the Rules Enabling Act does not prohibit
class certification for the two proposed classes here.
6.

Article III Standing

Finally, CRST argues that class certification would violate Article III’s standing
53

requirements because the class would include members who have suffered no injury in
fact and, therefore, have no standing under Article III, Section 2 of the United States
Constitution. See Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010)
(“Although federal courts ‘do not require that each member of a class submit evidence
of personal standing,’ a class cannot be certified if it contains members who lack
standing.”). Plaintiffs argue they are not required to prove at the certification stage that
all women in the proposed classes have suffered an injury. See Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir. 2012) (“[S]ome class members’ claims
will fail on the merits if and when damages are decided, a fact generally irrelevant to the
district court’s decision on class certification.”). I agree. In any event, the proposed
classes are defined in such a way that anyone within them would have standing as they
had to have “been subjected to” a hostile work environment or retaliation. See Hassan
v. City of New York, 804 F.3d 277, 291 (3d Cir. 2015) (quoting Ad Hoc Comm. of
Concerned Teachers v. Greenburgh # 11 Union Free Sch. Dist., 873 F.2d 25, 29 (2d
Cir. 1989) for the proposition that where a plaintiff “is asserting [his or her] own
[equality] right, a claim of discrimination, even where it affects a broad class, is not an
abstract concern or generalized grievance.”) (internal quotations omitted). Moreover,
because these cases will be bifurcated such that liability will be established on a class
basis, any individual who is a part of the class will be required to prove that she suffered
injury in order to recover damages in Phase II.

For these reasons, Article III standing

is not a barrier to class certification.
IV.

CONCLUSION

Based on the foregoing, plaintiffs’ motion (Doc. No. 35) for class certification is
granted in part and denied in part as follows:
1.

The following classes are certified and defined:
a.

The Hostile Work Environment Class: All women who were or
54

are employed as team truck drivers by CRST Expedited, Inc. at any time from October
12, 2013 to the present, who have been subjected to a hostile work environment based
on sex as a result of any of the following alleged CRST policies:
(1)
(2)

failing to discipline drivers after complaints were
corroborated; and

(3)
b.

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

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

The Retaliation Class: All women who were or are employed as

team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the
present, who have been subjected to retaliation based on sex as a result of CRST requiring
them to exit the truck in response to their complaints of sexual harassment.
2.

There shall be no certified subclasses at this time.

3.

The following issues shall be certified pursuant to Rule 23(c)(4)(A) with

respect to each class:
a.

As to the Hostile Work Environment Class, whether CRST has any

of the following policies, patterns or practices that create or contribute to a
hostile work environment:
(1)
(2)

failing to discipline drivers after complaints were
corroborated and

(3)
b.

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

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

As to the Retaliation Class:
(1)

Whether CRST has a policy, pattern or practice of
retaliating against women complaining of sexual
harassment by requiring them to exit the truck except
when they are a lead driver or owner-operator
55

4.

Plaintiffs’ counsel of Friedman & Houlding, LLP, and local counsel

Thomas Newkirk, are hereby appointed as class counsel for both certified classes.
5.

This Order may be altered or amended as appropriate before final judgment

pursuant to Rule 23(c)(1)(C).
IT IS SO ORDERED.
DATED this 30th day of March, 2017.

________________________________
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE

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