Page
TABLE OF
AUTHORITIES.................................................................................... ii
STATEMENT
OF INTEREST................................................................................ 1
STATEMENT
OF ISSUES....................................................................................... 1
STATEMENT
OF THE CASE................................................................................ 2
A. Factual Background.......................................................................................... 2
B. Procedural Background.................................................................................... 5
ARGUMENT................................................................................................................ 7
I. The district court erred in granting CRST
summary judgment on the retaliation claims............................................................................................................ 7
A. Plaintiffs proved that their protected
opposition was a but-for cause of the alleged adverse actions, and they need
not also demonstrate that CRST acted with a malicious retaliatory motive............................................................. 9
B. The district court was correct that the
pre-July 2015 retaliation plaintiffs suffered an adverse action, but it erred
in analyzing whether this was true of plaintiffs whose claims arose
subsequently................................... 16
II. The district court erred in granting CRST
summary judgment as to the constructive discharge claims................................................................................... 24
CONCLUSION.......................................................................................................... 26
CERTIFICATE
OF COMPLIANCE................................................................... 27
CERTIFICATE
OF SERVICE...................................................................................
Page(s)
Cases
Arraleh v. County of Ramsey,
461 F.3d 967 (8th Cir. 2006)....................................................... 16
Bennett v. Riceland Foods, Inc.,
721 F.3d 546 (8th Cir. 2013)......................................................... 9
Billings v. Town of Grafton,
515 F.3d 39 (1st Cir. 2008)................................................... 18, 20
Blake v. MJ Optical, Inc.,
870 F.3d 820 (8th Cir. 2017)................................................ 25, 26
Brandon v. Sage Corp.,
808 F.3d 266 (5th Cir. 2015)....................................................... 20
Burlington Northern &
Santa Fe Railway Co. v. White,
548 U.S. 53 (2006)................................................................... passim
Carney v. Martin Luther Home, Inc.,
824 F.2d 643 (8th Cir. 1987)....................................................... 11
City of Los Angeles, Department of Water &
Power v. Manhart,
435 U.S. 702 (1978)...................................................................... 11
Davis v. Lambert of Arkansas, Inc.,
781 F.2d 658 (8th Cir. 1986)....................................................... 15
Donathan v. Oakley Grain, Inc.,
861 F.3d 735 (8th Cir. 2017)................................................ 14, 15
Dothard v. Rawlinson,
433 U.S. 321 (1977)...................................................................... 11
EEOC v. Board of Governors
of State Colleges & Universities,
957 F.2d 424 (7th Cir. 1992)..................................... 1, 11, 14, 15
EEOC v. Consol Energy, Inc.,
860 F.3d 131 (4th Cir. 2017)....................................................... 25
Feemster v. BSA Limited Partnership,
548 F.3d 1063 (D.C. Cir. 2008).................................................. 13
Forman v. Small,
271 F.3d 285 (D.C. Cir. 2001).................................................... 14
Franklin v. Local 2 of the Sheet Metal Workers
International Association,
565 F.3d 508 (8th Cir. 2009)....................................................... 11
Green v. Brennan,
136 S. Ct. 1769 (2016)....................................................... 2, 24, 25
Higgins v. Gonzales,
481 F.3d 578 (8th Cir. 2007)................................................ 17, 21
International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America,
UAW v. Johnson Controls, Inc.,
499 U.S. 187 (1991)................................................................. passim
International Brotherhood of Teamsters v. United
States,
431 U.S. 324 (1977)......................................................................... 5
Jankovitz v. Des Moines Independent Community School
District,
421 F.3d 649 (8th Cir. 2005)....................................................... 11
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).................................................................. 7, 13
Northeast Ohio Coalition for the Homeless v.
Husted,
831 F.3d 686 (6th Cir. 2016)....................................................... 26
Porter v. Houma Terrebonne Housing Authority Board
of Commissioners,
810 F.3d 940 (5th Cir. 2015)....................................................... 21
Silk v. City of Chicago,
194 F.3d 788 (7th Cir. 1999)....................................................... 18
Spears v. Missouri Department of Corrections
& Human Resources,
210 F.3d 850 (8th Cir. 2000)....................................................... 17
Trans World Airlines, Inc. v. Thurston,
469 U.S. 111 (1985)......................................................... 10, 11, 16
Torgerson
v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011)..................................................... 17
University
of Texas Southwestern Medical Center v. Nassar,
570 U.S. 338 (2013)......................................................................... 8
Vajdl v. Mesabi Academy of KidsPeace, Inc.,
484 F.3d 546 (8th Cir. 2007)....................................................... 25
Velikonja v. Gonzales,
466 F.3d 122 (D.C. Cir. 2006).................................................... 20
Williams v. W.D. Sports, N.M., Inc.,
497 F.3d 1079 (10th Cir. 2007)............................................ 19, 20
Statutes
29 U.S.C. § 623(a)............................................................................... 10
29
U.S.C. § 623(a)(1).......................................................................... 10
29 U.S.C. § 623(d)............................................................................... 14
42
U.S.C. § 2000e-2(a)........................................................................ 24
42 U.S.C. § 2000e-2(a)(1)................................................................... 11
42 U.S.C. § 2000e-3(a).................................................................. passim
Other
Authorities
Fed. R. App. P. 29(a)(2)....................................................................... 1
Congress charged the Equal Employment Opportunity
Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. (Title
VII). This case raises important questions about the showings necessary to
establish two of the three elements of a Title
VII retaliation claim—the causation element and the “materially adverse action”
element. This appeal also presents a critical question regarding the proper standard
for Title VII constructive discharge
claims. Because this Court’s resolution of these issues may significantly affect
Title VII enforcement, EEOC respectfully
offers its views to the Court. See Fed.
R. App. P. 29(a)(2).
1. Does a plaintiff establish causation in a Title VII retaliation case if she shows that
her employer has a policy of subjecting employees who complain of sexual
harassment to an action that she alleges is adverse, or must she also show that
her employer intended to harm her for complaining about harassment?
·
Int’l Union, United
Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson
Controls, Inc., 499 U.S. 187 (1991)
·
EEOC v. Bd. of Governors of
State Colls. & Univs., 957 F.2d 424 (7th Cir. 1992)
2. a. If raised by defendant as an
alternative ground for affirmance, did the district court correctly conclude
that defendant’s pre-July 2015 practice of removing certain drivers who
complained of harassment from their trucks without pay was materially adverse
for purposes of plaintiffs’ Title VII
retaliation claims?
b. To show that defendant’s subsequent practice
of removing drivers who complained of harassment from their trucks and
providing “HR layover pay” was materially adverse for purposes of their Title VII retaliation claims, were plaintiffs
required to establish that the pay they received was “significantly” or
“substantially” less than the pay they otherwise would have earned?
·
Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006)
3. Must a plaintiff bringing a Title VII constructive discharge claim prove
that her employer deliberately made her working conditions intolerable in an
effort to induce her to quit?
·
Green v. Brennan, 136
S. Ct. 1769 (2016)
1. Defendant CRST Expedited, Inc. (CRST), is a
long-haul freight transportation company with about 3,500 drivers working at any
given time. Appellant App. (AA) 63; Amicus Supplemental App. (ASA) 221. CRST
pairs “two drivers per truck so that one driver may rest while the other is
driving.” AA 234 (relying on ASA 221). CRST drivers generally fall into four
categories: (1) “owner-operators,” who own or are leasing to own the vehicles
they operate, ASA 222; (2) “student drivers,” who are newly hired drivers with
little to no trucking experience, ASA 222; (3) “lead drivers,” who are responsible
for training student drivers by driving alongside them, ASA 212, 222; and (4)
“co-drivers,” who are neither lead nor student drivers, AA 82. For
safety reasons, student drivers may not drive alone. ASA 222.
While drivers are on the road, CRST pays them a
“split mileage rate,” meaning that drivers earn wages for half the number of
miles their trucks travel during a pay period, multiplied by a personal rate
based on seniority. ASA 211. CRST’s president testified that drivers with one
year of experience earn a daily average of $150 to $200. ASA 171, 177. Drivers may
also earn “layover” or “breakdown” pay in certain limited circumstances when
they are not driving. ASA 223-24; AA 25.
Pursuant to what the district court called
CRST’s “removal” policy, AA 172, 191, when a driver complains to CRST of sexual
harassment occurring on a truck, the complainant must generally exit the truck,
ASA 214-15 (noting exceptions when the complainant is the lead driver or an
owner-operator). When first joining CRST, all drivers must certify that if they
are “subjected to harassment or discrimination,” they will “immediately report
it” so they can be “removed from the harassing situation.” ASA 127-28; AA 170-71.
From October 2013 to at least July 1, 2015,
complainants who had to exit trucks pursuant to CRST’s removal policy were
ineligible for pay for the first 48 hours they were off the trucks. ASA 215. After
48 hours, CRST contends that complainants were eligible for “standard layover
pay” of $40 per day. ASA 215. It is undisputed, however, that 49 of 51 class
members removed from trucks during this period earned nothing until they were
driving on another truck, regardless of whether their wait time exceeded 48
hours. AA 190-91.
On or after July 1, 2015, CRST modified its
removal policy to provide “HR layover pay” of $100 per day to any driver
removed from a truck due to making a sexual harassment complaint. ASA 166; see
also AA 133-34. Under the revised policy, CRST stops compensating a
complainant with HR layover pay when she is offered another co-driver, which
can occur before “she actually begins driving again.” AA 179 (citing ASA 171). CRST
selected the $100 figure by multiplying the minimum wage in California by ten
hours, the average number of hours worked per day. AA 138; ASA 132 (noting HR
layover pay was later increased to $110 per day when California’s minimum wage
increased).
CRST admits that its employee handbooks do not
explain that drivers removed from trucks because of harassment complaints are
eligible for HR layover pay. ASA 215-16. CRST’s Director of Human Resources
testified that CRST did not “make drivers aware of” the availability of such
pay unless they were “involved with [an] allegation” because CRST wanted “to
ensure [the pay] [wa]s used for the correct purposes.” AA 138; ASA 171.
2. Plaintiffs allege, and CRST largely admits,
that male drivers subjected scores of female drivers to sexual harassment. See
AA 247-64; ASA 92. Leslie Fortune and Claudia Lopez, two class representatives,
testified that they declined to complain about some harassment because they
“knew that if [they did complain, they] would just get pulled off the truck[]
and stop being able to earn wages,” which they “did not
want . . . to happen.” ASA 148, 156.
Fortune, Lopez, and Cathy Sellars filed this
action under Title VII alleging, inter
alia, retaliation and constructive discharge. See ASA 1-2, 61-62; AA
163. The district court subsequently certified a class defined as “[a]ll women . . . employed
as team truck drivers by CRST” between October 2013 and December 2017 “who [were]
subjected to retaliation . . . as a result of CRST
requiring them to exit the truck in response to their complaints of sexual
harassment.” ASA 121; AA 175, 179.
The court analyzed the class retaliation claim
under the pattern-or-practice framework established in International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977), and granted summary judgment to CRST. AA
185, 201. Based on a concession by CRST, the court assumed that drivers who
complained to CRST of sexual harassment engaged in “opposition” activity
protected by Title VII’s anti-retaliation provision. AA 30, 182, 196. The court
then analyzed whether the actions by CRST that plaintiffs challenged were
“materially adverse” and therefore actionable. AA 182-95. The court concluded
that the 51 class members whose claims arose before July 2015 demonstrated a
triable issue as to whether CRST engaged in a practice of subjecting them to adverse
actions because at least 49 of those drivers earned no pay while removed from
trucks. AA 190-91, 193-95. The court found, however, no triable issue as to
whether plaintiffs covered by the July 2015 removal policy experienced a
pattern of receiving “substantially less [pay] than they would have made had
they stayed on the truck,” and on that basis it granted CRST summary judgment
on those claims. AA 192-93. Significantly, the court never evaluated whether
the relevant legal standard actually requires plaintiffs to prove such a
“substantial[]” pay cut to satisfy the adverse action element of their claim.
Because the court concluded that the pre-July
2015 class members could survive summary judgment as to the adverse action
element, the court analyzed whether those plaintiffs demonstrated “that a
retaliatory motive was the but-for cause of the alleged adverse employment action.”
AA 195. The court acknowledged that CRST had a policy of “remov[ing] women from
their truck when they complained of sexual harassment” and depriving them of
“regular pay while off the truck.” AA 195. The court nonetheless held that
plaintiffs had not submitted “direct evidence” of “retaliatory intent” because
plaintiffs did not establish, the court said, that CRST “inten[ded] to impose”
on them “negative consequences.” AA 197. The court also rejected plaintiffs’
alternative argument based on the inferential proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). AA 197-201. The court held that a reasonable jury could not infer
that CRST had a retaliatory motive or disbelieve the reasons CRST articulated for
removing sexual harassment complainants from trucks without pay, such as the
asserted need “to protect employee safety and well-being.” AA 196-201.
The court later granted CRST summary judgment on
the individual retaliation and constructive discharge claims. AA 283-84, 287.
The court rejected the individual retaliation claims—which arose under the
policy in effect before July 2015—for the reasons it rejected the related class
retaliation claim: insufficient evidence of “retaliatory intent” or “pretext.” AA
283-84. The court held that plaintiffs’ constructive discharge claims failed
because, although a reasonable jury could determine that plaintiffs’ working
conditions were “intolerable,” it could not conclude that “CRST deliberately
created intolerable working conditions with the intent that any plaintiff would
resign her employment.” AA 287.
Over the timeframe at issue in this lawsuit,
CRST implemented policies to address sexual harassment its female truck drivers
were experiencing when paired with male drivers. Part of the policies involved
separating complainants from alleged harassers, and EEOC does not take issue
with that aspect of the policies. The questions EEOC addresses pertain to other
aspects of CRST’s policies or practices, which plaintiffs argue left women who
objected to harassment worse off than if they had remained silent. As explained
below, the district court erred in part in analyzing whether those aspects of
CRST’s policies and practices violated 42
U.S.C. § 2000e-3(a), known as Title VII’s “antiretaliation provision,” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 56 (2006).
Under §
2000e-3(a), it is “an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he
has,” inter alia, “opposed any practice made an unlawful employment
practice” under Title VII. In Burlington
Northern, the Supreme Court explained that the anti-retaliation provision’s
“primary purpose” is to “maintain[] unfettered access to statutory remedial
mechanisms.” 548 U.S. at 64 (citation
omitted). In keeping with this purpose, the Court construed the provision to
encompass claims based on “materially adverse” employer actions, which the
Court defined as actions “harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Id. at 57, 68. In University of Texas Southwestern Medical
Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court addressed the
causation standard in retaliation claims, holding that plaintiffs “must
establish that [their] protected [opposition] was a but-for cause of the
alleged adverse action by the employer.” Id.
at 362.
Thus, “[t]o establish a retaliation claim under
Title VII, an employee must show [1] that
he engaged in statutorily protected conduct, [2] that he suffered a
[materially adverse] action, and [3] that the protected conduct was a
but-for cause of the adverse action.” Bennett
v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013). In district
court, CRST did not dispute that plaintiffs’ sexual harassment complaints to
CRST constituted conduct protected by the statute. See supra p. 5. As
explained below, the district court erred in part in analyzing the remaining
two elements of plaintiffs’ retaliation claims.
1. Contrary to the analysis of the district
court, all retaliation class members established the causation element of their
Title VII retaliation claims. CRST
acknowledges not only that all the complaints of sexual harassment here
constituted protected opposition, but it also readily admits that, had plaintiffs
not voiced harassment complaints, they would have remained on the trucks and
continued earning “split mileage” pay. See AA 189-90. As a result,
plaintiffs have shown that their protected opposition conduct was a but-for
cause of the actions plaintiffs allege are adverse: removal from trucks without
regular pay.
It is particularly clear that plaintiffs
established causation because CRST’s removal policy singles out employees for removal
from trucks, resulting in loss of regular pay, based on their protected
opposition. See supra pp. 3-4. CRST’s removal policy therefore resembles
employment policies that the Supreme Court has deemed “facially discriminatory”
or “discriminatory on [their] face,” meaning that they expressly draw
distinctions based on a protected criterion. In Trans World Airlines, Inc. v. Thurston,
469 U.S. 111 (1985), for instance, the Supreme Court addressed an airline’s
policy that granted certain privileges to pilots who were disqualified from
serving in that position for reasons other than age but did not afford the same
privileges to pilots disqualified because of age. Id. at 120-22. The Court concluded that
the policy discriminated based on age “on its face” under the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 623(a). 469 U.S. at
121-22. Similarly, in International
Union, United Automobile, Aerospace & Agricultural Implement Workers of
America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Court
analyzed an employer’s policy that disqualified fertile women from a class of
lead-exposed jobs, based on a concern for protection of unconceived offspring,
but did not likewise disqualify fertile males. Id. at 190-92, 197. The Court held that
the employer’s policy was “facially discriminatory” under Title VII’s provision
barring sex discrimination because it gave “[f]ertile men, but not fertile
women,” a “choice as to whether they wish to risk their reproductive health for
a particular job.” Id. at 197-98,
200.
The statutory provision at issue here is
identical in material respects to those at issue in Thurston and Johnson Controls because each provision
bars (or generally bars) “discriminat[ion]” “because” of a protected criterion.
Compare 42 U.S.C. § 2000e-3(a)
(prohibiting “discriminat[ion] . . . because [an employee]
has opposed” a Title VII violation), with
29 U.S.C. § 623(a)(1) (generally
prohibiting “discriminat[ion] . . . because
of . . . age”); and 42
U.S.C. § 2000e-2(a)(1) (generally prohibiting certain
“discriminat[ion] . . . because
of . . . sex”). CRST’s removal policy expressly classifies
employees on the basis of whether they have opposed sexual harassment, and thus
the policy facially differentiates based on a protected criterion under Thurston, Johnson Controls, and other decisions. See,
e.g., City of Los Angeles, Dep’t of
Water & Power v. Manhart, 435 U.S. 702, 704, 715-16 (1978); Dothard v. Rawlinson, 433 U.S. 321,
324-26, 332-33 (1977); Jankovitz v. Des
Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 653 (8th Cir. 2005). And it
is well-established that where, as here, a policy facially differentiates
between employees based on a protected criterion, the policy itself constitutes
“direct evidence” of causation. Thurston,
469 U.S. at 121; Carney v. Martin
Luther Home, Inc., 824 F.2d 643, 648 (8th Cir. 1987).
In deciding the causation issue, this Court
need not resolve whether CRST’s removal policy would be deemed to facially differentiate
based on a protected criterion if it applied not just to complaints of harassment
and discrimination but also to other types of complaints. Compare EEOC v. Bd. of Governors of State Colls. &
Univs., 957 F.2d 424, 430-31 (7th Cir. 1992) (holding such policies are “discriminatory”),
with Franklin v. Local 2 of the Sheet
Metal Workers Int’l Ass’n, 565 F.3d 508, 513-14, 520-21 (8th Cir. 2009)
(stating in dictum that a union’s practice of publicly disclosing the
identities of individuals who filed EEOC charges was not “per se retaliation”
because the practice stemmed from the union’s policy of publicizing “all
legal bills” and did not “singl[e] out [union] members who filed EEOC
charges” (emphasis added)). This Court need not decide that issue here because
a reasonable jury could conclude that CRST’s removal policy is limited to
discrimination and harassment complaints. See AA 139-40; ASA 138-41 (descriptions
of policy relied upon by parties characterizing it as applying only to such
complaints). Indeed, in district court, CRST never argued that its policy
covers other types of complaints and is non-discriminatory for that reason.
2. As noted, supra p. 6, the district
court evaluated the causation element only with respect to class members whose
claims arose before July 2015, when complainants removed from trucks became
eligible for HR layover pay. AA 195-201. With respect to these pre-July 2015
plaintiffs, the court acknowledged that CRST maintained a policy of “remov[ing]
women from their truck when they complained of sexual harassment” and depriving
them of “their regular pay while off the truck.” AA 195. The court never
analyzed, however, whether those undisputed facts established the requisite
but-for causation.
The court instead framed its analysis by
asking whether plaintiffs had established that CRST acted with “retaliatory
intent.” AA 197. The court rejected plaintiffs’ argument that there was direct
evidence of such intent because, according to the court, plaintiffs did not
demonstrate that CRST implemented its policy with an “intent to impose” “negative
consequences” on them for engaging in protected activity. AA 197. The court
also rejected plaintiffs’ alternative argument that they had established a
triable issue of retaliation under the inferential proof scheme of McDonnell Douglas, 411 U.S. 792. AA 197-201.
In that regard, the court implicitly held that CRST had articulated
non-retaliatory reasons for removing harassment complainants from trucks
without pay, and it found that a jury would have no reason to doubt the
veracity of CRST’s articulated reasons or believe they were pretextual. AA 196,
197-201.
The district court’s analysis missed the mark
for several reasons. Most importantly, the court erred in requiring plaintiffs
to show that CRST implemented its removal policy with an intent to harm
plaintiffs. In Johnson Controls, for
example, the court of appeals decision under review had similarly “assumed”
that the “explicit[ly] gender-based policy” at issue did not constitute sex
discrimination because its “asserted purpose”—“protecting women’s unconceived
offspring”—was “ostensibly benign.” 499
U.S. at 197-98, 200. The Supreme Court rejected this reasoning, explaining that
“the absence of a malevolent motive” does not redeem a “facially discriminatory
policy” because “[w]hether an employment practice involves disparate treatment
through explicit facial discrimination does not depend on why the employer
discriminates but rather on the explicit terms of the discrimination.” Id. at 199-200; see also, e.g., Feemster v. BSA Ltd. P’ship, 548 F.3d
1063, 1070 (D.C. Cir. 2008) (“[U]nder Title
VII, when a policy is ‘discriminatory on its face,’ the defendant’s motive is
irrelevant.”) (relying on Thurston and Johnson Controls); Forman v. Small, 271 F.3d 285, 299 (D.C.
Cir. 2001) (explaining that “motive, in the sense of malice, is not required”
to establish retaliation).
In Board of Governors, the Seventh
Circuit applied this reasoning to the ADEA’s anti-retaliation provision, 29 U.S.C. § 623(d), which is materially
identical to Title VII’s. As that decision explained, an employment “policy
which provides for . . . differential treatment” based on
“statutorily protected activity” with respect to a “decision to take adverse
employment action” is “invalid regardless of the employer’s motivation for
adopting or invoking the policy.” 957 F.2d
at 428. In accordance with this principle, Board of Governors held that
a collective bargaining agreement provision withdrawing access to grievance
proceedings if an employee pursued a matter in another forum, including by
filing an EEOC charge, discriminated based on protected activity “on its face,”
irrespective of whether the provision was merely meant to avoid duplicative
litigation. Id. at 427-31.
To be sure, when courts describe claims
arising under § 2000e-3(a), they
sometimes refer to them as “retaliation” claims that require a showing of
“retaliatory motive” or “retaliatory intent.” E.g., Donathan v. Oakley Grain, Inc., 861 F.3d
735, 739 (8th Cir. 2017). The word “retaliate” and its variants can be
interpreted to involve a malevolent motive, and such a motive is present in
many actionable cases brought under §
2000e-3(a), which may have led the district court to conclude that an intent to
harm plaintiffs was required here. The statutory text, however, bars
“discriminat[ion]” based on protected opposition, not “retaliation.” 42 U.S.C. § 2000e-3(a). Under the plain
language of the statute and under Johnson
Controls and related cases, it is unnecessary to show that employers
harbored malevolent motives when treating employees engaged in protected
activity differently from other employees. Courts use the term “retaliation”
and its variants not “because retaliation claims require proof of a greater
level of animus than that required in [substantive] discrimination claims,”
such as sex and age discrimination claims, but instead “as a shorthand way to
distinguish substantive . . . discrimination claims from claims
of discrimination based on the exercise of legal rights granted by the [anti-discrimination
statutes].” Bd. of Governors, 957
F.2d at 427; cf., e.g., Donathan,
861 F.3d at 737, 739 (treating as equivalent two different articulations of the
causation standard for retaliation claims—(1) that plaintiff must prove
that her “protected action was the but-for cause” of the adverse action; and (2) that
a plaintiff must prove “an impermissible retaliatory motive was the ‘but-for
cause’ of the” adverse action (citation omitted)).
The district court also erred in analyzing this
case under McDonnell Douglas and
requiring plaintiffs to show that the reasons CRST articulated for its removal
policy were pretext for discrimination under §
2000e-3(a). As noted, supra p. 11, a policy that facially differentiates
based on a protected criterion itself constitutes “direct evidence” of causation,
and it is well established that “the McDonnell
Douglas test is inapplicable where the plaintiff presents [such] direct
evidence.” Thurston, 469 U.S. at
121; Arraleh v. Cty. of Ramsey, 461
F.3d 967, 974-75 (8th Cir. 2006).
For the reasons just identified, all class
members established the causation element of their Title VII retaliation claims because, on its
face, CRST’s removal policy singles out employees for differential treatment based
on their protected opposition—lodging complaints of sexual harassment. To
prevail on their claims, however, plaintiffs also must establish that the
actions CRST took in response to their harassment complaints qualified as “materially
adverse actions.” In Burlington Northern, the Supreme Court held that an
employer’s acts qualify as materially adverse under § 2000e-3(a) if they are “harmful to the
point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” 548
U.S. at 57, 67-68. The district court correctly held that the pre-July 2015 class
members endured adverse actions, but it incorrectly analyzed whether that was
true with regard to the other class members.
1. As for the pre-July 2015 class, the
district court concluded that a jury could find that CRST subjected them to a
policy of removing them from trucks and suspending their pay because they
complained of sexual harassment, which the court concluded would dissuade “a
reasonable employee in the same circumstances” from engaging in protected
opposition. AA 194-95. If CRST challenges this ruling on appeal (in requesting
affirmance on alternative grounds), this Court should affirm.
Even under this Court’s pre-Burlington Northern cases,
which required retaliation plaintiffs to show a “material employment
disadvantage,” not just actions that could dissuade a reasonable worker from opposing
harassment, “cutting [an] employee’s pay or benefits” met the standard for
material adversity in the retaliation context. Higgins v. Gonzales, 481 F.3d 578, 589-90
(8th Cir. 2007) (citations omitted), abrogated on other grounds by Torgerson
v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011); see also Spears v. Mo. Dep’t of Corr. & Human Res.,
210 F.3d 850, 853 (8th Cir. 2000). It follows a fortiori that pay cuts
are actionable under Burlington Northern, which broadened the standard
for what is materially adverse in this context. See, e.g., Higgins, 481 F.3d at 589 (explaining how Burlington
Northern altered this Court’s materially adverse standard). The district
court was thus correct that a reasonable jury could conclude that the pre-July
2015 plaintiffs suffered materially adverse actions.
2. The district court erred, however, in its
analysis of whether plaintiffs subject to CRST’s July 2015 policy experienced a
pattern or practice of materially adverse actions. With respect to these
plaintiffs, the court did not analyze whether a reasonable worker in their
position would have been dissuaded from making a harassment complaint, nor did
the court discuss case law applying that Burlington Northern standard.
Instead, the court appeared to assume—without explanation—that these plaintiffs
could survive summary judgment on the adverse action element only if they
established that they received “significantly” or “substantially” less pay than
they would have received had they stayed on their trucks. AA 192. The court then
held that plaintiffs’ evidence did not establish that fact. AA 192.
Specifically, the court faulted plaintiffs for the method they used to
approximate the amount of pay they would have received if they had stayed on
the trucks—which relied on data showing the amount of pay they had received in
the two weeks prior to their removal. AA 192-93.
The district court committed legal error in
two important respects. First, the court was incorrect to assume implicitly that
plaintiffs must establish “significant[]” or “substantial[]” compensation
losses to satisfy the Burlington Northern standard. AA 192-93. Instead,
virtually any “readily quantifiable . . . reduction[s] of pay or
monetary benefits” would suffice to deter a reasonable worker from making or
supporting a discrimination complaint. Silk
v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999); cf. Burlington N., 548 U.S. at 67-68 (agreeing
with the Seventh Circuit’s formulation for what constitutes materially adverse
actions in retaliation cases); see also, e.g., Billings v. Town of Grafton, 515 F.3d 39,
54 (1st Cir. 2008) (holding that a jury could find a job transfer to be adverse
because, among other things, the transfer likely required the plaintiff to pay
union dues she did not owe before).
Second, and more fundamentally, the district
court focused too rigidly on whether plaintiffs who were subjected to the July
2015 policy proved that they actually suffered significant pay cuts, and
instead should have analyzed whether these women reasonably believed, when
deciding whether to complain, that they might lose pay or suffer other adverse
consequences. Under Burlington Northern, an action is materially adverse
if it “could well dissuade a reasonable worker from making or supporting a
charge of discrimination.” 548 U.S. at 57.
As Burlington Northern explained, a key purpose of the anti-retaliation
provision is to “prevent employer interference with ‘unfettered access’ to
Title VII’s remedial mechanisms,” and “[i]t does so by prohibiting employer
actions that are likely to deter victims of discrimination from complaining to
the EEOC, the courts, and their employers.” Id.
at 68 (citation omitted).
Applying the standard it announced, Burlington
Northern ruled that the jury could have reasonably found that the
plaintiff’s suspension was materially adverse, even though she was ultimately
reinstated with full back pay 37 days later. See id. at 72-73. “A reasonable employee
facing the choice between retaining her job (and paycheck) and filing a
discrimination complaint might well choose the former,” the Supreme Court
reasoned, even if the employee ultimately suffered no actual monetary loss. Id. at 73. Similarly, in Williams v. W.D. Sports, N.M., Inc., 497
F.3d 1079 (10th Cir. 2007), the Tenth Circuit held that a plaintiff suffered an
adverse action under Burlington Northern where, among other things, her
employer made various threats and contested her unemployment benefits because
such actions would deter “a reasonable employee in [the plaintiff’s] shoes”
from engaging in opposition, even though there was no evidence that the
plaintiff’s “benefits were ever . . . actually interrupted”
or “suspended for any period of time.” Id. at 1087-88, 1090-91. As Williams explained, “material tangible
economic . . . damage is certainly sufficient but not necessary to satisfy [Burlington
Northern’s] requisites.” Id. at
1091.
Similarly, in Brandon v. Sage Corp., 808 F.3d 266 (5th
Cir. 2015), the Fifth Circuit recognized that an unfulfilled threat of a pay
cut “might deter someone from supporting a discrimination charge in certain
circumstances,” but it held that the pay-cut threat at issue there was not
materially adverse because it was not “realistic” or “cred[ible].” Id. at 268, 271-72 (explaining the
plaintiff “was a supervisor familiar with company employment policies,”
and the threat to cut her pay came from someone “outside her chain of command
and who she knew had no final decision-making authority”); cf. Billings, 515 F.3d at 54-55 (concluding
that a reasonable employee in plaintiff’s position would be dissuaded from engaging
in opposition if she knew that doing so would “risk[] a formal
investigation and reprimand” and raise “the prospect of having to
take personal time” (emphasis added)); Velikonja
v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (similar).
These decisions stand for the proposition that
determining whether an action is materially adverse under Burlington
Northern hinges more on whether it holds a deterrent prospect of harm than
on whether that specific harm ultimately comes to pass. Thus, if a reasonable
worker standing in the shoes of a CRST driver in or after July 2015 could have
believed that complaining of sexual harassment might jeopardize her pay or risk
other adverse consequences, it would be reasonable for her to decline to
complain, and she should thus be deemed to have suffered an adverse action for
purposes of § 2000e-3(a). See, e.g.,
Burlington N., 548 U.S. at 69-70,
73 (emphasizing that the standard focuses on “the perspective of a reasonable
person in the plaintiff’s position” when she is “facing the choice” whether to
complain); Higgins, 481 F.3d at 591
(observing that Burlington Northern “asks us to consider what a
reasonable employee would do in [the plaintiff’s] shoes”); see also Porter v. Houma Terrebonne Hous. Auth. Bd. of
Comm’rs, 810 F.3d 940, 947-48 (5th Cir. 2015) (analyzing the standard from
the perspective of what “a reasonable employee in [plaintiff’s] shoes might
have legitimately expected” (emphasis added)).
EEOC takes no position on whether a reasonable
juror could conclude based on the voluminous record here that plaintiffs
subject to CRST’s July 2015 policy—which is a clear improvement over CRST’s
prior policy—suffered materially adverse actions under the standard just
articulated. We note, however, that several pieces of record evidence tend to
support the conclusion that a reasonable CRST driver deciding whether to make a
harassment complaint in or after July 2015 could have been dissuaded from doing
so due to a credible risk of losing pay. For instance, CRST’s president
testified that drivers with one year of experience earned a daily average of $150-$200
while driving, ASA 171, 177; but under CRST’s July 2015 policy, drivers removed
from trucks due to harassment complaints were eligible for only $100-$110 per
day, and that pay ceased when they were offered a new co-driver, which could occur
before they actually resumed driving. AA 178-79. Moreover, CRST decided on the
$100-$110 rate not by attempting to approximate what it believed harassment
complainants would have earned absent protected opposition, but instead by
approximating what those drivers would have been entitled to under California’s
minimum wage laws. AA 138.
Compounding the problems created by CRST’s
failure to guarantee that harassment complainants would not lose pay because of
their protected activity, it is undisputed that, although CRST decided to make
complainants eligible for HR layover pay in or after July 2015, CRST did not
publicize this decision to employees. See ASA 215-16. Quite the
contrary, CRST’s Director of Human Resources’ testimony suggests that the
company deliberately concealed the revised policy from drivers unless they
lodged a harassment complaint because it feared that publicizing the policy
would encourage such complaints. ASA 171. Particularly given that CRST
generally had not paid harassment complainants removed from trucks before July
2015, CRST’s failure to notify employees of the revised policy would support
the conclusion that a reasonable driver in a harassment victim’s position in or
after July 2015 would likely expect to lose pay if she complained. Consistent
with this evidence, two class representatives testified that they “knew if
[they] complained to CRST about . . . harassment,” CRST
“would take [them] off the truck and make [them] stop earning pay, which [they]
did not want to happen.” ASA 183, 200. Although those class representatives stopped
working for CRST before July 2015, their testimony supports the conclusion that
a reasonable driver subject to the July 2015 policy would have shared that belief,
particularly given that CRST did not publicize the new policy. This evidence
could support the conclusion that CRST’s actions tended to suppress harassment
complaints, contrary to the “primary purpose” of Title VII’s anti-retaliation
provision of ensuring that employees retain “unfettered access to [the
statute’s] remedial mechanisms,” Burlington
N., 548 U.S. at 64 (citation omitted).
Moreover, under Burlington Northern,
“[c]ontext matters” in that “an act that would be immaterial in some situations
is material[ly] [adverse] in others.” 548
U.S. at 69 (citation omitted). This record includes evidence that the context
here made CRST’s practice of removing harassment complainants from trucks
uniquely disadvantageous. For example, when a CRST driver exited a truck
because she complained of harassment, she often found herself, in the words of
a CRST manager, “stuck in the middle of nowhere,” ASA 161-62, and thus in need
of lodging and transportation. Even if CRST ultimately reimbursed these women
for hotel and transportation costs—and that issue is disputed, see ASA 166-67—it
appears there is no record evidence that CRST informed drivers ahead of time that
it would provide such reimbursement if they had to exit a truck under the
removal policy. Also, class members subject to the policy often had to travel before
being re-paired with another driver so that they could resume earning regular
pay. ASA 206-07. And they sometimes faced the choice whether to complain of
harassment while alone in a confined space with their alleged harasser, who
might influence whether they passed their training, ASA 213, and in some cases
reacted to their allegations with violence and threats, See 225-26; AA 255-56.
Evidence of these unique circumstances, in
addition to the pay evidence discussed above, supra pp. 21-23, is
relevant to determining whether a reasonable worker in these plaintiffs’ shoes
would have been dissuaded from opposing harassment. Because the district court
applied an incorrect standard in evaluating whether class members covered by
the July 2015 policy were subjected to adverse actions, this Court should
reverse and remand so the district court can evaluate that issue under the
correct standard.
Under 42
U.S.C. § 2000e-2(a), employers are barred from “discharg[ing] any
individual . . . because of such
individual’s . . . sex.” It is well established that plaintiffs
may recover for a violation of this provision by proving a “constructive
discharge.” Such a plaintiff must show that he resigned and that his
discriminatory working conditions “bec[a]me so intolerable that a reasonable
person in the employee’s position would have felt compelled to resign.” Green v. Brennan, 136 S. Ct. 1769, 1776-77
(2016) (quoting Pa. State Police v.
Suders, 542 U.S. 129, 141 (2004)). In Green,
the Supreme Court considered whether a plaintiff must additionally show that
his employer made “conditions intolerable with the specific discriminatory
intent of forcing the employee to resign” and observed that a plaintiff need not
show “that his quitting was his employer’s plan all along.” Id. at 1779-80 (emphasis and citation
omitted).
The district court here held “that a reasonable
jury could conclude that the conditions” the class representatives experienced “were
intolerable.” AA 287. Applying this Court’s
pre-Green precedent, the district court nevertheless granted CRST
summary judgment on the constructive discharge claims solely because plaintiffs
had not demonstrated, according to the court, that “CRST deliberately created
intolerable working conditions with the intent that any plaintiff would resign.”
AA 287 (relying on Vajdl v. Mesabi Acad.
of KidsPeace, Inc., 484 F.3d 546, 553 (8th Cir. 2007), which required such
a showing). Because the district court required a showing of CRST’s
“deliberateness” that the Supreme Court has observed is unnecessary in
constructive discharge cases, this Court should reverse summary judgment for
CRST on these claims. See EEOC v.
Consol Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (recognizing that “Green’s
express holding abrogate[d]” that court’s prior precedents requiring
constructive discharge plaintiffs to prove their employer acted with
“deliberateness”).
For the foregoing reasons, the
district court’s judgment should be reversed.
Respectfully submitted,
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
s/Philip M. Kovnat
PHILIP M. KOVNAT
Attorney
Equal
Employment
Opportunity
Commission
Office of General Counsel
131 M St., N.E., 5th
Floor
Washington, D.C. 20507
(202) 663-4769
philip.kovnat@eeoc.gov
This brief complies with the type-volume
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s/Philip M. Kovnat
PHILIP M. KOVNAT
Attorney
Equal
Employment
Opportunity
Commission
Office of General Counsel
131 M St., N.E., 5th
Floor
Washington, D.C. 20507
(202) 663-4769
philip.kovnat@eeoc.gov
