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Female truck drivers removed from trucks after complaining of harassment, and not paid, lack class reprisal claim

By Ronald Miller, J.D.

A trucking company was granted summary judgment against female truck drivers’ class claims that they were subject to retaliation for their complaints of sexual harassment. A federal district court in Iowa concluded that the drivers demonstrated a genuine issue of material fact as to whether the employer maintained a policy, pattern, or practice of removing drivers from their truck after they make complaints of sexual harassment, and failing to pay them thereafter. However, the drivers could not establish that the employer’s stated reason for doing so—to protect the safety of the complainants—was pretextual. The court noted, though, that while it awarded summary judgment in the company’s favor as to the class claim, this did not preclude the possibility that an individual driver might have a viable retaliation claim based on the specific facts of her case. The court also granted the employer’s motion to decertify the drivers’ hostile work environment class claim (Sellars v. CRST Expedited, Inc., January 15, 2019, Strand, L.).

Harassment, reprisal. The trucking company teams two drivers per truck so that one driver may sleep while the other is driving. The training regimen required student drivers to work alongside experienced drivers for a designated period of time. According to the plaintiffs, they complained of sexual harassment by the male drivers, but the employer would not find their complaints were corroborated without an eyewitness or admission. The employer also failed to discipline the offending drivers after the complaints were corroborated; and failed to discipline managers for not responding promptly to the complaints.

The drivers also alleged that the company subjected them to retaliation against them for complaining of sexual harassment when, in response to their complaints, it required them to exit the truck and to receive no pay until they could be paired with another driver. They acknowledged that the employer had a written policy against sexual harassment, but they denied that the employer’s practice was to take immediate steps to ensure the safety of the complainant or to advance the investigation. They asserted that while dispatchers have the authority to respond to sexual harassment, there were delays in separating the complainant, and the dispatchers did not in fact arrange for accommodations or travel or pay or reimburse these expenses after removing them.

The drivers filed a class action asserting claims of hostile work environment and retaliation in violation of Title VII. On March 30, 2017, the court entered an order certifying a hostile work environment class and a retaliation class.

Retaliation claim. In its motion for partial summary judgment on the retaliation claim, the employer argued that the drivers could not show that they suffered any materially adverse employment action or that their removal from their trucks was motivated by retaliatory animus. The employer characterized the allegedly adverse action as removal from a harassing environment, and argued that the removal essentially amounted to a paid administrative leave. However, the drivers maintained that it was not the removal itself that was problematic, but the lack of pay or decrease in pay that came with the removal. An unpaid suspension or pay cut in response to sexual harassment complaints constituted an adverse action, they countered.

There were two issues in play: first, whether there was a genuine issue of material fact as to whether the employer has a policy, pattern or practice or “standard operating procedure” of not paying women who complain of sexual harassment, or of paying them significantly less than they otherwise would have earned following their removal; second, whether the standard operating procedure involved an adverse employment action.

Reduction in pay. Considering the employer’s business records, the court concluded that the evidence would allow a reasonable jury to conclude that the company maintained a standard operating procedure of requiring female drivers complaining of sexual harassment to exit the truck. Moreover, the drivers demonstrated a genuine issue of material fact that the employer, at least from October 12, 2013 through July 1, 2015, maintained a policy, pattern or practice of failing to pay drivers who complained of sexual harassment after removing them from the truck, or paying them substantially less than they would have made had they stayed on the truck. However, the drivers did not demonstrate that the employer maintained this policy, pattern or practice after July 1, 2015. Their evidence reflected that whether an employee experienced a “pay cut” after that date was based on their previous two weeks of pay, not the miles remaining to the truck’s destination and their rate of pay.

Materially adverse? Under the Supreme Court’s ruling in Burlington Northern, an adverse employment action is one that “a reasonable employee would have found . . . materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” A reasonable jury could conclude that the alleged policy, pattern or practice of requiring female drivers who complain of sexual harassment to exit the truck, and to receive no pay until they could be re-paired with another driver, constituted a materially adverse employment action, the court found. In its view, a reasonable employee in these circumstances would be dissuaded from reporting sexual harassment.

No retaliatory motive. However, there was no evidence in the record from which a jury could conclude that the employer’s stated reasons for removing the drivers from the truck—the safety of the sexual harassment complainant—was pretext for retaliation. The alleged adverse action was certainly close in time to the protected conduct, but the stated reason supported that immediacy. This was a situation in which temporal proximity alone could not create an inference of pretext. Moreover, the drivers had not put forth sufficient evidence for a jury to infer that the employer’s articulated reasons were false, and the real reason was retaliation.

Hostile work environment class decertified. The court also decertified the drivers’ hostile work environment class, concluding that they could not show commonality under Rule 23(a) and could not meet predominance and superiority requirements of Rule 23(b)(3). There was no common evidence regarding the alleged harassment, and they had not explained how they intended to prove their hostile work environment allegations on a class basis. Consequently, the drivers could only pursue their hostile work environment claims on an individual basis.