Nos. 09-3764, 09-3765, 10-1682 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, JANET BOOT et al., Plaintiffs-Interveners, and REMCEY JEUNENNE PEEPLES & MONIKA STARKE, Plaintiffs-Interveners-Appellants, v. CRST VAN EXPEDITED, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Iowa Civil Action No. 07-cv-95-LRR Hon. Linda R. Reade, U.S.D.J., presiding _______________________________________________________ CORRECTED OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DORI K. BERNSTEIN JENNIFER S. GOLDSTEIN SUSAN R. OXFORD Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov SUMMARY OF THE CASE From 2005 through 2008, scores of women who drove long-haul trucks for CRST Van Expedited complained they were sexually harassed by their male trainers or co-drivers. After one woman filed a discrimination charge, EEOC investigated, found reason to believe CRST had discriminated against multiple women, and filed suit. In a series of decisions, the district court ruled that EEOC could not seek relief for various women based on: judicial estoppel; lack of severity; or CRST's lack of notice or effective response. The district court concluded that a jury could find the harassment of 67 women was severe-indeed, some cases involved rape and other forms of sexual assault-and that CRST knew or should have known of the harassment yet failed to take appropriate remedial and preventive steps. The court dismissed EEOC's case seeking relief for these 67 women and imposed attorneys' fees based on its view that the EEOC failed to offer CRST a chance to remedy the violations voluntarily before filing suit. The district court erred. EEOC offered CRST a chance to conciliate, and that offer met all of Title VII's pre-suit requirements. The court also erred in a number of rulings on estoppel, severity, and notice/effective response. EEOC believes that oral argument of 45 minutes per side will assist this Court in understanding these voluminous facts and the interplay of the various legal issues in this case. TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv TABLE OF WOMEN WHO ARE SUBJECTS OF THIS APPEAL. . . . . . . . . . . . . . . . . viii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CRST's Business Model. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Charging Party Starke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CRST's Response to EEOC's First Request for Information. . . . . . . . . . . . . . 7 CRST's Awareness of Harassment Complaints by Other Women in 2005. . . . . . . . . 8 EEOC's Investigation and Conciliation. . . . . . . . . . . . . . . . . . . . . 16 CRST's Implementation of its Anti-Harassment Policy. . . . . . . . . . . . . . . 18 1. Anti-harassment training. . . . . . . . . . . . . . . . . . . . . . . . 19 2. Qualcomm as a reporting mechanism. . . . . . . . . . . . . . . . . . . . 20 3. Dispatchers and other CRST staff do not always follow CRST policy. . . . . . 20 4. "Positive Work Environment" Chart. . . . . . . . . . . . . . . . . . . . . 22 5. Discipline for harassment. . . . . . . . . . . . . . . . . . . . . . . . 23 6. Designation of "no females" as a response. . . . . . . . . . . . . . . 26 Harassment Complaints from Specific Female Drivers. . . . . . . . . . . . . . . 28 2005 Complaints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Complaints During EEOC's Investigation. . . . . . . . . . . . . . . . . . . .33 Complaints after CRST Ended Conciliation. . . . . . . . . . . . . . . . . . 41 Women's Harassment Complaints to CRST. . . . . . . . . . . . . . . . . . . . . 47 CRST's Responses to Complaints. . . . . . . . . . . . . . . . . . . . . . . . . . 53 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 I. The District Court Misconstrued EEOC's Title VII Enforcement Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 A. The District Court Erred in Dismissing EEOC's Suit for Failure to Conciliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 B. The District Court Erred in Estopping EEOC from Seeking Relief for Three Women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 II. The District Court Misapplied Basic Title VII Principles For Claims of Sexual Harassment in the Workplace. . . . . . . . . . . . . . . . . . . . . . . . . . . 70 A. The District Court Erred in Ruling 14 Women Did Not Experience Severe or Pervasive Harassment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 B. The District Court Erred in Ruling That CRST Is Not Liable for the Harassment of 39 Women Who Complained "Too Late"; CRST's Knowledge of Harassment Complaints Obligated it to take Additional Preventive Steps. . . . . . 78 C. The District Court Erred in Granting Summary Judgment Based on the Adequacy of CRST's Response in Four Instances. . . . . . . . . . . . . . . . . . 87 D. The District Court Erred in Barring Documentary Evidence Concerning 99 Women for whom EEOC May Not Seek Relief. . . . . . . . . . . . . . . . . . . . 88 E. The District Court Erred in Ruling Lead Drivers Are Not Supervisors For Liability Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 III. The District Court Abused its Discretion in Awarding Attorneys' Fees. . . 92 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Adams v. O'Reilly Automotive, 538 F.3d 926 (8th Cir. 2008). . . . . . . . . . . . 83 Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995). . . . . . . . . 81 Beard v. Flying J, 266 F.3d 792 (8th Cir. 2001). . . . . . . . . . . . . . . . . .74 Breeding v. Arthur J. Gallagher, 164 F.3d 1151 (8th Cir. 1999). . . . . . . . . 73 Brenneman v. Famous Dave's of America, 507 F.3d 1139 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . 74 Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999). . . . . . . . . . . . . . 70 Chester v. St. Louis Housing Auth., 873 F.2d 207 (8th Cir. 1989). . . . . . . . . 95 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . 3, 92, 93, 95 Cooter & Gell v. Hartmarx, 496 U.S. 384 (1990). . . . . . . . . . . . . . . . . . 57 Crist v. Focus Homes, 122 F.3d 1107 (8th Cir. 1997). . . . . . . . . . . . . . . 84 Davis v. Tri-State Mack Distributors, 981 F.2d 340 (8th Cir. 1992). . . 2, 80, 87 Dinkins v. Charoen Pokphand USA, 133 F. Supp.2d 1237 (M.D. Ala. 2001). . . . . . . . . . . . . . . . . . . . .63 EEOC v. Am. Home Prods., 165 F.Supp.2d 886 (N.D. Iowa 2001). . . . . . . . . . . 65 EEOC v. Amer. Nat'l Bank, 652 F.2d 1176 (4th Cir. 1981). . . . . . . . . 1, 64, 65 EEOC v. Amer. Nat'l Bank, 1979 WL 25 (E.D. Va. 1979) (unpub.). . . . . . . . . . . . . . . . . . . . . . . . . . .64 EEOC v. Apria Healthcare Group, 222 F.R.D. 608 (E.D. Mo. 2004). . . . . . . . . 70 EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003). . . . . . . . . 93 EEOC v. Bruno's Restaurant, 13 F.3d 285 (9th Cir. 1993). . . . . . . . . . . . 3, 93 EEOC v. Calif. Psychiatric Transitions, 644 F. Supp. 2d 1249 (E.D. Cal. 2009). . . . . . . . . . . . . . . . . . . . 63 EEOC v. Dave's Detailing, 2008 WL 1968315 (W.D. Ky. 2008) (unpub.). . . . . . . . . . . . . . . . . . . . . . . . . . 69 EEOC v. David Lerner Assocs., 2005 WL 2850080 (D. Conn. 2005) (unpub.). . . . . . . . . . . . . . . . . . . . . . . . 63, 94 EEOC v. Delight Wholesale, 973 F.2d 664 (8th Cir. 1992). . . . . . . . . . . . 65 EEOC v. Dial Corp., 156 F.Supp.2d 926 (N. D. Ill. 2001). . . . . . . . . . . . . .64 EEOC v. Digital Connections, 2006 WL 2792219 (M.D. Tenn. 2006) (unpub.). . . . . . . . . . . . . . . . . .70 EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . . . 1, 60 EEOC v. Klingler, 636 F.2d 104 (5th Cir. 1981). . . . . . . . . . . . . . . . . . 67 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982). . . . . . . . . . . . 93 EEOC v. Rhone-Poulenc, 876 F.2d 16, 17 (3d Cir. 1989). . . . . . . . . . . . . . .63 EEOC v. Tobacco Superstores, 2008 WL 2328330 (E.D. Ark. 2008)(unpub.). . . . . . . . . . . . . . . . . . . . . . . . . . .70 EEOC v. Waffle House, 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . 68, 69 Eich v. Bd. of Regents, 350 F.3d 752 (8th Cir. 2003). . . . . . . . . . . . . . . 71 Ellerth v. Burlington Indus., 524 U.S. 742 (1998). . . . . . . . . . . . . . .91, 92 Erickson v. Wisconsin Dep't of Corrections, 469 F.3d 600 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . .81, 83, 84 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . 3, 90, 91, 92 Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995). . . . . . . . . . . . . .81 General Tel. Co. v. EEOC, 446 U.S. 318, 323-24 (1980). . . . . . . . . . . . 59, 95 Harris v. Forklift Sys., 510 U.S. 17 (1993). . . . . . . . . . . . 2, 70, 71, passim Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997). . . . . . . . .71, 74, 75, passim Hawkins v. Hennepin Technical Ctr., 900 F.2d 153 (8th Cir. 1990). . . . . . . . . 89 Howard v. Burns Bros., 149 F.3d 835 (8th Cir. 1998). . . . . . . . . . . . . .73, 75 Kern v. TXO Prod., 738 F.2d 968 (8th Cir. 1984). . . . . . . . . . . . . . . . . .56 Kline v. City of Kansas City, 175 F.3d 660 (8th Cir. 1999). . . . . . . . . . . . 76 Lockhart v. CRST, 2010 WL 1239526 (8th Cir. Apr. 1, 2010). . . . . . . . . . . . 88 Marquart v. Lodge 837, Int'l Ass'n of Machinists & Aerospace Workers, 26 F.3d 842 (8th Cir. 1994). . . . . . . . . . . . . . .92 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004). . . . . . . . 81, 82, 87 Merritt v. Albermarle Corp., 496 F.3d 880 (8th Cir. 2007). . . . . . . . . . 90, 91 Moring v. Arkansas Dep't of Correction, 243 F.3d 452 (8th Cir. 2001). . . . . . 71 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977). . . . . . . . . . . . 59 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). . . . . . . . 2, 70, 71, 72 Rorie v. UPS, 151 F.3d 757 (8th Cir. 1998). . . . . . . . . . . . . . . . . . . . 75 Sandoval v. Am. Bldg. Maintenance Indus., 578 F.3d 787 (8th Cir. 2009). . . . . . . . . . . . . . 2, 57, 79, passim Sentis Group v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009). . . . . . . . . . . .57 Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997). . . . . . . . . . . 76, 77 Stallings v. Hussman Corp., 447 F.3d 1041 (8th Cir. 2006). . . . . . . . . 1, 57, 68 Stuart v. General Motors, 217 F.3d 621 (8th Cir. 2000). . . . . . . . . . .2, 81, 82 Varner v. Nat'l Super Markets, 94 F.3d 1209 (8th Cir. 1996). . . . . . . . . . . .79 Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir. 2006). . . . . . . . . . . . 76 Wegener v. Johnson, 527 F.3d 687 (8th Cir. 2008). . . . . . . . . . . . . .2, 89, 90 Whitten v. Fred's, 601 F.3d 231 (4th Cir. 2010). . . . . . . . . . . . . . . 3, 92 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. §626(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 59, 62 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 59 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 60, 66 42 U.S.C. § 2000e-6(c), (e). . . . . . . . . . . . . . . . . . . . . . . . . 62, 95 Regulations 29 C.F.R. § 1604.11(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 TABLE OF WOMEN WHO ARE SUBJECTS OF THIS APPEAL<1> Names Page Antoinett Baldwin d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48, 80 Stacy Barager a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Pamela Barlow a e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Bonnie Batyik d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 80 Mary Beaton d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 80 Peggy Blake a e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Amber Blauvelt a. . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 11, 12 Bethany Broeker d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 80 Kelli Carney a. . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 14, 15, 56 Kim Chisholm d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 80 Catherine Coronado d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 80 Samantha Cunningham d. . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 80 Denise Desonier d. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 52, 80 Donna Dickson a e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Dorothy Dockery c d. . . . . . . . . . . . . . . . . . . . . 41-43, 52, 72-78, 80 Nicole Edwards a e. . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 80 Maybi Fernandes-Fabre d. . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 87 Robryna Fitch a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Catherine (Granofsky)-Fletcher d. . . . . . . . . . . . . . . . . . 8, 14, 49, 80 Zelestine Grant a e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Martha Griffin a e. . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 11, 80 Wanda Hasbell a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 14 Victoria High a. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 11 Debra Hindes c d. . . . . . . . . . . . 8, 10, 11, 12, 28, 29, 47, 56, 72-77, 80 Victoria Holmes c. . . . . . . . . . . . . . . . . . 10, 12, 30, 72, 73, 74, 77, 78 Tracy Hughes c d. . . . . . . . . . . . . . . . . .21, 33, 34, 47, 52, 72, 74-77, 80 Carolyn Hunsucker a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 January Jackson c d. . . . . . . . . . . . . . . . . . 43, 44, 45, 49, 52, 72-78, 80 Tequila Jackson a. . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 11 Tillie Jones c. . . . . . . . . . . . . . . . . . . . . 9-12, 30, 31, 72, 74, 75, 76 Ginger Laudermilk d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54, 87 Angela Lesmeister a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 12 Patricia Marzett c d. . . . . . . . . . . . . . . 34, 35, 47, 72, 73, 74, 75, 80 Virginia Mason c d. . . . . . . . . . . . . . . . . . 36, 37, 49, 52, 72, 73, 78, 80 Lucinda McBlair c d. . . . . . . . . . . .45, 46, 47, 49, 72, 73, 74, 76, 77, 78, 80 Verona McIver d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 80 Patricia Merritt a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 12 Bonnie Moesch d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 80 Valerie Montoya a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Julie Noernberg a. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 13 Bobbi O'Dell a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Sherry O'Donnell c d. . . . . . . . . . . . . . . . . 37, 38, 48, 72, 74, 75, 76, 80 Christina Payne b c. . . . . . . . . . . . . . . . . . 8, 15, 31, 67-70, 72, 75, 78 Remcey Peeples d. . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 48, 80 Carole Pettit a e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Tammi Pile d. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 50, 51, 80 Sharon Pinchem d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 80 Peggy Pratt c d. . . . . . . . . . . . . . . . .10, 13, 31-33, 48, 50, 72, 74-78, 80 Danette Quintanilla d. . . . . . . . . . . . . . . . . . . . . . . . . . .22, 48, 80 Shalitha Ross a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Mechelle Schuder a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jammie Laney Scott a. . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 13 Kathleen Seymour d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 80 Faith Shadden d. . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 53, 54, 87 Jonne Shepler c d. . . . . . . . . . . . . . . 25, 39, 40, 41, 48, 49, 72-75, 78, 80 Linda Skaggs c. . . . . . . . . . . . . . . . . . . . 8, 10, 13, 15, 33, 72, 73, 75 Mary (Emily) Smith d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 80 Gloria South a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Monika Starke b. . . . . . 3, 4, 6-11, 14, 17, 18, 55, 57, 60, 61, 67-70, 95, 96 Jennifer Susson d. . . . . . . . . . . . . . . . . . . . . . . .8, 9, 10, 11, 49, 80 Robin Timmons b d. . . . . . . . . . . . . . . . . . . . . . . 10, 13, 49, 67-70, 80 Rachel Tucker d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51, 52, 80 Diana Vance d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54, 87 Ramona Villareal a. . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 13, 14 Barbara Wallace a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14 Kimberly Watson a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Rhonda Wellman a e. . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 80, 86 Betsey Ybarra d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 80 STATEMENT OF JURISDICTION The district court had jurisdiction over this Title VII suit under 28 U.S.C. § 1331. It entered final judgment on the merits on October 1 and December 2, 2009. A-275-76.<2> EEOC filed a timely notice of appeal on November 30 and an amended notice on December 14, 2009. XX-Apx.5343;5345.<3> The court entered final judgment on attorney's fees and costs on February 9, 2010. A-316. EEOC timely appealed on March 24, 2010. XX-Apx.5347. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether EEOC properly conciliated its claim in this suit. 42 U.S.C. § 2000e-5(b) EEOC v. Keco Indus., 748 F.2d 1097 (6th Cir. 1984) EEOC v. Am. Nat'l Bank, 652 F.2d 1176 (4th Cir. 1981) 2. Whether EEOC can be estopped from seeking relief for individuals because of their conduct in bankruptcy proceedings. Stallings v. Hussman Corp., 447 F.3d 1041 (8th Cir. 2006) 3. Whether the district court misapplied standards for assessing severity or pervasiveness on summary judgment in concluding EEOC cannot obtain relief for 14 women. Harris v. Forklift Sys., 510 U.S. 17 (1993) Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) 4. Whether the district court misapplied liability standards on summary judgment in concluding CRST cannot be liable for the harassment of 39 women who complained about harassment shortly after it occurred. Sandoval v. Am. Bldg. Maint. Indus., 578 F.3d 787 (8th Cir. 2009) Davis v. Tri-State Mack Distribs., 981 F.2d 340 (8th Cir. 1992) Stuart v. General Motors, 217 F.3d 621 (8th Cir. 2000) 5. Whether the district court misapplied liability standards on summary judgment in ruling that CRST responded adequately in four instances. Stuart, supra 6. Whether the district court abused its discretion in barring use of documentary evidence concerning complaints of women for whom EEOC may not seek relief. Wegener v. Johnson, 527 F.3d 687 (8th Cir. 2008) Sandoval, supra 7. Whether the district court erred in ruling lead drivers are not supervisors of female trainees in analyzing CRST's liability for sexual harassment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) Whitten v. Fred's, 601 F.3d 231 (4th Cir. 2010) 8. Whether the district court abused its discretion in awarding attorneys' fees because, at a minimum, EEOC reasonably believed its conciliation efforts satisfied Title VII. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) EEOC v. Bruno's Rest., 13 F.3d 285 (9th Cir. 1993) STATEMENT OF THE CASE EEOC sued CRST under section 706 of Title VII, 42 U.S.C. § 2000e-5, alleging that since at least July 2005, Monika Starke<4> and "a class of similarly situated female employees" were subjected to sexual harassment by lead or team drivers, and CRST failed to prevent, correct, and protect these women from, this hostile environment. The complaint sought monetary and injunctive relief for "Starke and the class of similarly situated female employees." I-Apx.-37. By the deadline for naming claimants, EEOC had identified a total of 270 aggrieved individuals. A-5. The court barred EEOC from seeking relief for or presenting testimony of any women not deposed, A-9, and by the end of discovery, 154 women had been deposed. A-57 (approximately 150 women deposed). The court subsequently barred EEOC from relying for any purpose on CRST's business records of the barred individuals' harassment complaints. A-44;112. The court granted CRST's motion for summary judgment on EEOC's claim that CRST's actions constitute a "pattern-or-practice" of discrimination and held that "lead drivers" are not supervisors of trainees. A-101;111;104-05. The court excluded potential claimants (and narrowed the claims on behalf of others) on several grounds relevant to this appeal: * three individuals, including Starke, for failure to disclose discrimination claims in bankruptcy proceedings (A-153); * fifteen individuals because they failed to notify CRST of their complaints or CRST responded appropriately (A-210); * eleven individuals because their harassment was not sufficiently severe or pervasive (A-225); * forty-two individuals on two or more grounds (A-230-32); and * the remaining sixty-seven women on the ground that, before filing suit, EEOC did not specifically investigate and conciliate each woman's allegations. A-273-74. The court awarded CRST $92,842.21 in costs and $4,467,442.90 in attorneys' fees and expenses. A-282;315. STATEMENT OF FACTS CRST's Business Model CRST employs "[m]ore than 2,500 team drivers . . . for reliable, rapid, coast- to-coast transit." V-Apx.1303. CRST assigns two drivers to a truck and they alternately drive and sleep in the double-sleeper cab. III-Apx.869¶6;XIX- Apx.5062. The "workplace" is thus isolated from CRST supervisors and co- workers and from CRST's safety and human resources officials in Cedar Rapids, Iowa. V-Apx.1303. CRST offers new drivers a three-day classroom orientation followed by 28 days of over-the-road training with an experienced "Lead Driver" (trainer) who instructs and directs the trainee. V-Apx.1236. Trainers control virtually every aspect of a trainee's activities on the truck, including when she is permitted to drive, when she may use the truck's satellite communication device (Qualcomm), and even when she can stop to use a bathroom or take a shower. V-Apx.1194; 1283-85; see, e.g., infra 28-29;31-32;34;42;45. Trainers are given a manual with a four-week program, V-Apx.1191, which tells them in week one to cover basic driving skills, driving in different environments, logging, and vehicle inspections, V-Apx.1238-42, and during week two to instruct trainees on Qualcomm use. V- Apx.1243;1191("Leads will be fully responsible for teaching students the Qualcomm . . . system"). Trainers evaluate trainees throughout the training period and, at the end, give the trainee "a pass/fail driving evaluation" that determines whether the trainee achieves full-driver status. V-Apx.1191;XIX-Apx.5184;V-Apx.1195. CRST Human Resources (HR) Director James Barnes described the lead driver/student driver relationship to EEOC Investigator Pamela Bloomer as "really no different than the role of supervisors in other industries and organizations." VIII- Apx.2068.<5> Charging Party Starke Monika Starke drove with trainer Bobb Smith from July 8 to 15, 2005, during which time he made sexual comments like, "'You need to have some super dick.'" XVII-Apx.4533-37;4550. She complained to the dispatcher, stating she wanted to "get off this truck" because Smith was "sexually harassing me." XVII- Apx.4533. The dispatcher asked her to "'hang in there'" and call back after making the delivery. XVII-Apx.4538. Later that evening, Smith punched the trailer close to Starke's head and told Starke she was a "'stupid cunt . . . only good for fuckin[g].'" XVII-Apx.4536,4550. Starke fled and telephoned the dispatcher, again asking to get off the truck, but he said he could do nothing for her at that hour. XVII-Apx.4534. Starke and Smith parked at a gas station for the night. XVII-Apx.4536. As Starke was climbing into her bunk, Smith-whose pants were down-tried twice to pull down Starke's sweatpants. XVII-Apx.4538-39. Starke kicked him off and spent the night in the front seat. XVII-Apx.4539. The next morning, she called dispatch for the third time, and her dispatcher agreed to send money and call a cab. XVII-Apx.4539. HR investigated and gave Smith a verbal warning and "no females" designation. A-317 (Positive Work Environment chart, see infra 12&n.17); infra 26. CRST assigned Starke to complete her training with David Goodman. XVII-Apx.4540. Goodman repeatedly "forced [Starke] to have sex with him." XVII-Apx.4541-42. Starke did not report Goodman's attacks while she was still on the truck because she felt "ashamed" and "dirty," and she "was scared" of Goodman. XVII-Apx.4546. She reported Goodman's harassment once off the truck. XVII-Apx.4552. CRST's Response to EEOC's First Request for Information Starke filed an EEOC charge. VII-Apx.1910. EEOC notified CRST and began its investigation. VII-Apx.1911-14. EEOC asked CRST whether "any other individual has complained to any supervisor or manager concerning the conduct described in the charge" between January 2 and November 2, 2005, and, if so, how CRST responded. VII-Apx.1914 (Request-for-Information ("RFI") #3). On December 21, 2005, CRST responded with the names of two women: Lori Essig, who complained of her trainer's harassment in July 2005, and Tamara Thiel, who complained of co-driver harassment in August 2005. VII-Apx.1916. CRST's Awareness of Harassment Complaints by Other Women in 2005 EEOC learned in discovery that CRST had recorded 43 complaints of sexual harassment from female drivers between January 2 and November 2, 2005, and another 11 complaints between November 2 and December 21, 2005. A-317. Eighteen other women attest they also complained to CRST of sexual harassment during 2005, but CRST did not record their complaints. Thirty-four of these 72 women-almost half-complained to CRST that their male trainer or co-driver propositioned them for sex.<6> Twenty-one of these 34 women reported their male trainer or co-driver eventually either raped them, threatened them with rape, sexually assaulted them, or subjected them to other forms of offensive sex-based touching.<7> Seven additional women also reported rape, attempted rape, or sexual assault by their trainer or co-driver.<8> Ten other women reported sex-based touching.<9> Twelve of the 72 women complained to CRST that drivers exposed their penises, urinated, or masturbated in their presence.<10> Four complained that a driver exposed them to pornography, and ten complained of graphic sex talk.<12> Seven women complained their trainer restricted their access to showers or bathrooms or "stalked" them and gave them no privacy.<13> Twenty women complained of verbal abuse by their trainer or co-driver.<14> Twelve women reported physical assaults,<15> including Ramona Villareal, whose trainer beat her "black and blue" twice for driving mistakes, and who complained to CRST both times but was not removed from the truck until after the second beating. XVII-Apx.4776-80. Female drivers complained that male trainers or co-drivers threatened to abandon them in distant locations, or parked in isolated areas where assistance was unavailable if they were assaulted. At least ten women complained of this in 2005,<16> including Tequila Jackson, who called dispatch one Friday evening to report her trainer was physically threatening her. After the dispatcher said nothing could be done until Monday, she called her sister, who called 911 for her. As her trainer had warned, however, the police could not find Jackson in their isolated location. CRST finally removed her from the truck Monday morning, when two male drivers arrived to bring Jackson home. XIII-Apx.3415-20. CRST documented three-quarters of these complaints on its Positive Work Environment (PWE) chart. A-317.<17> There is no PWE entry for the following 18 women, 14 of whom complained to CRST dispatchers and four of whom complained through other channels. * Amber Blauvelt, IX-Apx.2470-74 (first co-driver repeatedly called her "cunt" and "bitch" and stole her dirty underwear; next co-driver told her that by agreeing to be on his truck, she had agreed "to sleep with him" and threatened her when she refused); * Debra Hindes, see infra 28-29. * Victoria Holmes, see infra 30; * Tillie Jones, see infra 30-31; * Angela Lesmeister, XIII-Apx.3477-80 (two successive co-drivers repeatedly propositioned her for sex; one crawled into her bunk in the middle of the night; dispatcher responded she was "good-looking" and "must be the problem"); * Patricia Merritt, XIII-Apx.3614-15 (trainer repeatedly touched and propositioned her); * Julie Noernberg, XIV-Apx.3700-06 (trainer openly urinated in a cup while she was driving, despite her protests, and parked at a location frequented by prostitutes knowing she would be mistaken for one when she exited the truck, laughing when it happened); * Rachel Perhealth, XIV-Apx.3878-84 (co-driver stared at her breasts, stalked her outside her shower, touched her while she slept); * Peggy Pratt, see infra 31-33; * Jammie Laney Scott, XV-Apx.4137-43 (co-driver rubbed her shoulders, suggested massages, and told her to come lie with him in the bunk); * Linda Skaggs, see infra 33; * Robin Timmons, XVII-Apx.4664-72 (trainer repeatedly called her "stupid bitch," "dumb cunt," "dumb motherfucker," "worthless," "stupid," and "good for nothing," and urinated numerous times in the sleeping area, telling her about it as he was doing it, in addition to drinking alcohol); * Ramona Villareal, XVII-Apx.4773-82 (first trainer commented on her breasts, sexually assaulted her while she was sleeping, and beat her "black and blue" twice; second trainer urged her to give other truckers a "peep show" and expose her breasts for money); * Barbara Wallace, XVIII-Apx.4827-33 (trainer grabbed her breast and said, "I either sleep with him or get off the truck;" dispatcher directed her to stay on truck until Monday or it would be considered "abandoned truck"). Wanda Hasbell called CRST's 1-800 number to report her trainer repeatedly touched her and commented "about sex, having sex, needing sex, he's horny." XII-Apx.3252-57. Villareal complained to senior CRST executives that her first trainer beat her. XVII-Apx.4777-79. Kelli Carney contacted HR to report her co-driver forced her to have sex daily and threatened to kill her if she told CRST. X-Apx.2602-03. Catherine Granofsky-Fletcher contacted CRST's Safety Department in June-shortly before Starke joined CRST-to report that in April her trainer, William Yoder, had told her, as she was lying on her bunk, to "scoot over" so he could join her. When she refused, he angrily threw things around the truck. XI- Apx.3042-43. The next day, he removed his shirt and said she "was going to do it or [she] wasn't going to pass;" she refused again. XI-Apx.3047. The CRST safety manager said it was "too late to do anything about it now." XI-Apx.3048. CRST knew about sexual harassment of female drivers even before 2005. Janet Boot complained to her dispatcher in 1997 that her trainer masturbated as he was driving the truck down the highway, ejaculated over the steering wheel while she was in the bunk behind him, and screamed at her when she opened the curtain and saw him. X-Apx.2482;2488;2491-92. From 2000 through 2004, female drivers reported to CRST that trainers and co-drivers: * propositioned them for sex and, in some cases, said they would not pass otherwise. Priscilla Stephenson, (2000)XVII-Apx.4565;4569-71;4576; Linda Austin, (2001)IX-Apx.2217-20;2225-27; Margaret McCain, (2003)XIII-Apx.3542-49; Rhonda Morgan, (2004)VIII-Apx.2051;2053; Catherine Howard (2004)XII-Apx.3322-23. * induced Kelli Carney to have sex in exchange for payment of her expenses and a guarantee she would pass. (2004)X-Apx.2598-600 (Carney was 23 at the time; she reported trainer's conduct to her dispatcher, stating "he was probably doing it to his new trainee, also"). * cursed them and called them "whore," Stephenson, XVII-Apx.4576, "b[itch]," Christina Payne, XIV-Apx.3805; Howard, XII-Apx.3324, or made other sexually offensive comments or threats, or touched them, Skaggs, (2003)XVI-Apx.4468;<18> McCain, XIII-Apx.3542-49; Patrice Cohen, (2003)X-Apx.2651-52; Morgan, VIII-Apx.2052; Shadden, (2004)XV-Apx.4166-67; Carney, X-Apx.2600-02 (co-driver Evans). * would not stop for bathroom breaks and urinated and/or masturbated in their presence. Austin, IX-Apx.2218;2222-27; Howard, XII-Apx.3323; Morgan, VIII-Apx.2051-52. * raped or sexually assaulted them. Austin, IX-Apx.2226-30; McCall, (2004)XIII-Apx.3568;3570. EEOC's Investigation and Conciliation As noted above, when EEOC asked CRST, in December 2005, whether any other women had complained of sexual harassment during the first ten months of 2005, Barnes provided only two names. The same month, Barnes provided the identical misinformation when a different EEOC office, investigating Karen Shank's sexual harassment charge, asked CRST "whether any complaints of sexual harassment, [excluding Shank's], have ever been made formally or informally." As here, Barnes provided only the names of Essig and Thiel. XIX-Apx.5037 (emphasis added). Barnes later admitted he knew of more complaints at the time of EEOC's inquiries and could not explain why he gave EEOC "inaccurate information." XIX-Apx.5037-38. In January 2007, Barnes assured EEOC investigator Pamela Bloomer that the number of sexual harassment complaints from trainees since December 2005 was "quite minimal." VIII-Apx.2068-69. In March, EEOC indicated to CRST it was broadening the investigation to encompass co-driver harassment. VIII- Apx.2107 (3/22/07 EEOC Letter to Barnes requesting information for all female drivers employed after January 1, 2005, and the names of trainers and co-drivers with whom they drove). On July 12, 2007, EEOC issued its finding of "reasonable cause to believe that [CRST] has subjected [Starke and] a class of employees and prospective employees to sexual harassment, in violation of Title VII." VII- Apx.1905-06. EEOC initiated conciliation, and CRST expressed interest. VII-Apx.1907. Bloomer outlined for CRST attorney Thomas Wolle EEOC's two-part conciliation proposal: appointment of a monitor to examine CRST's workplace "to discover and eliminate sexual harassment" and "relief for the class." VII-Apx.1898¶7. Wolle inquired about the class. Id. Since EEOC did not then know the identities of all affected women (CRST had disclosed only a few), Bloomer explained that EEOC would ask CRST to send a letter to past and present female drivers to help identify aggrieved individuals. Id. CRST agreed to consider EEOC's proposal. VII-Apx.1898¶8. On August 24, Wolle told Bloomer that after having spoken to Starke's counsel-a conversation that occurred outside EEOC's presence-"it did not appear conciliation would be successful." VII-Apx.1898¶9. Bloomer explained the next step would be EEOC's "internal decision whether to litigate on behalf of Ms. Starke and the class or provide Ms. Starke with a Right to Sue letter." VII- Apx.1898-99¶9. On August 27, Wolle sent a confirming e-mail to Bloomer reiterating that, "in light of the monetary demand made by Ms. Starke's attorney . . . , CRST does not wish to engage in conciliation efforts because we are confident that conciliation will not result in a resolution of this matter." VII- Apx.1899¶10;1900. Wolle's email expressed no dissatisfaction with any element of EEOC's conciliation proposal. At this point, CRST knew that at least 105 women had complained to CRST about sexual harassment by trainers or co-drivers since the beginning of 2005. A-317-18. Instead of exploring the possibility of voluntarily resolving EEOC's finding that other women, besides Starke, had been subjected to discrimination, CRST chose to end conciliation. CRST's Implementation of its Anti-Harassment Policy CRST's anti-harassment policy prohibits sexual harassment, including "unwelcome sexual advances or requests for sexual favors or other verbal or physical conduct of a sexual nature." V-Apx.1187-88. The policy is contained in CRST's driver handbook, which CRST distributes to new drivers during their three-day orientation class before their 28-day over-the-road training. III- Apx.871¶11. 1. Anti-harassment training Some women reported that trainers and participants alike made light of sexual harassment during the orientation session, discussed the policy jokingly, or simply ignored the presentation. E.g. X-Apx.2640;2645; XIII-Apx.3515-16. CRST's anti-harassment training fails to instruct its drivers not to engage in certain specific conduct, even when CRST has received recurring complaints of harassing conduct not mentioned in the policy. This conduct includes men urinating or masturbating on the truck in front of female drivers; refusing to stop so women can use the bathroom; driving in their underpants; exposing themselves; asking a woman to expose herself; physically assaulting a female driver; making demeaning remarks; and belittling women. See supra 8-16. CRST never explained to its drivers that such conduct can constitute harassment, even if not explicitly sexual in nature. Following the new-driver orientation, CRST provides no subsequent anti- harassment training for its drivers. Although CRST has regular driver meetings, XIX-Apx.5110, including regular "events where we go out to the field to meet with drivers at our terminals," XIX-Apx.5108; e.g., XV-Apx.4089(describing one driver meeting), it apparently does not use these driver meetings to reinforce its anti- harassment policy, to identify specific types of prohibited conduct, or to address complaints of recurring types of harassment. 2. Qualcomm as a reporting mechanism CRST provides Qualcomm on each truck, allowing drivers to communicate directly with dispatchers while on the road. III-Apx.876¶15. Qualcomms are "prone to system shut-downs and other delays," A-88, and temporary malfunctionings. V-Apx.1180¶15; e.g., XVIII-Apx.4874. New drivers do not learn how to use Qualcomm until week two of their over-the-road training. V- Apx.1243. Some trainers never taught their trainees how to use Qualcomm or barred their access to it.<19> Other trainees said they were afraid to use Qualcomm because they feared the consequences if their harasser discovered their complaint. They knew the trail of Qualcomm messages could be read in the truck, even after transmission. X-Apx.2537;XII-Apx.3353. No one taught some of them messages could be sent and then immediately erased. XI-Apx.2846-47;XII-Apx.3364. 3. Dispatchers and other CRST staff do not always follow CRST policy CRST's driver's handbook states that employees who are subjected to harassment "should immediately report such conduct to [their] . . . Immediate Supervisor" or Director of HR. V-Apx.1189. It is CRST's position that a driver's immediate supervisor is her dispatcher, also known as "fleet manager." See III-Apx.869¶7. If a female driver asks to be removed from a harassing situation, CRST's policy directs supervisors/dispatchers "not [to] try to resolve [such] allegations on their own," but simply to re-assign the driver to a new lead or co- driver. V-Apx.1310. Some women who followed this policy and reported harassment to their dispatchers obtained no relief because the dispatchers failed to handle the complaint properly. A-94-95. CRST admitted that dispatchers told at least 25 women who complained of harassment to continue on the truck with their harasser. VII-Apx.1739-44. Sometimes CRST's response-separating the woman from her harasser- left her worse off. A-207-10 (discussing eight such women). When CRST removed a woman from a harasser's truck, she was not paid while waiting for a new trainer or co-driver. Sometimes, she was forced to pay for her hotel room or bus ticket home. The harasser, on the other hand, was generally free to proceed on with the load, experiencing little or no disruption in pay. A-209 & n.6. CRST's anti-harassment policy requires supervisors/dispatchers to inform HR promptly of harassment complaints. V-Apx.1310;XIX-Apx.5121. Dispatchers did not always forward complaints to HR. See A-94. In October 2006, for instance, Tracy Hughes endured at least a week of repeated sexual propositions, stalking whenever she left the truck, and incessant sexual comments from her trainer Michael Karns. See infra 33-34. She called her dispatcher and reported "everything that had been going on for a week" and demanded CRST "get me off this truck now." XII-Apx.3352. Apparently, the dispatcher did not notify HR; there is no entry on the PWE, A-318, and no record of an investigation. XII- Apx.3353. Less than five months later, in March 2007, CRST assigned Karns to train Danette Quintanilla. Within four days, CRST had to remove Quintanilla from Karns' truck when his sexual advances escalated, despite Quintanilla's demands that he stop. XV-Apx.4028-36;4047. HR investigated Quintanilla's complaint and imposed a verbal warning/no female partners. A-318. A supervisor/dispatcher who fails to forward harassment allegations to HR may receive "discipline, up to and including discharge." V-Apx.1310. CRST admits, however, that it does not keep track of driver complaints about dispatcher noncompliance with this policy, and CRST officials could not identify any dispatcher ever disciplined for his or her handling of a harassment complaint. VII- Apx.1757¶383;XIX-Apx.5101. 4. "Positive Work Environment" Chart When HR receives a harassment complaint, Oetken or Barnes records it on the PWE. XIX-Apx.5121. Barnes instituted the PWE in early 2006 (reflecting incidents beginning mid-December 2004, A-317) to help identify any sexual harassment trends. XIX-Apx.5013. The PWE itself does not indicate the type or severity of harassment alleged. Barnes and Oetken examine the PWE at least annually to look for trends, but have spotted none. XIX-Apx.5013-14;XIX- Apx.5117-18. CRST admits the PWE undercounts the number of sexual harassment complaints received by CRST. VI-Apx.1699-700¶¶271-73. Furthermore, Barnes did not share information about harassment complaints with other CRST managers. VII-Apx.1753-54¶365. A number of company officials said they had no idea how many, or what kind of, sexual harassment complaints CRST was receiving. VII- Apx.1751¶¶355&357;1760¶398. When Lead Driver Program Director George Brandmayr screens prospective lead drivers, he considers their driving experience, safety record, and "Operation's" records of "professionalism," but does not check the PWE to see whether HR has received any sexual harassment complaints against the driver. XIX-Apx.5068-69; A-81. 5. Discipline for harassment CRST's expert in this litigation, Dr. Papinchock, stated that employers should make findings about whether a harassment allegation is true. See VI- Apx.1433-34. CRST's written anti-harassment policy is consistent with this view and indicates investigatory findings should govern the discipline imposed: "depending on the investigation findings and severity of the behavior," discipline may include any combination of "written warning; probation; suspension; termination; in the case of a driver, forfeiture of the ability to drive with and/or train with member of a certain sex." V-Apx.1310. In practice, CRST investigations very seldom lead to a conclusion whether sexual harassment occurred. See VI-Apx.1433-34¶¶22&23 (CRST's primary response is to separate parties, but not make a finding) (report of EEOC expert). Oetken does not think it is necessary to determine if harassment happened or not, as CRST's response is typically the same regardless. XIX-Apx.5135. HR separates the complainant from the alleged harasser, informs the accused driver the alleged conduct "could be sexual harassment," enters the complaint on the PWE chart, and sometimes-but not always-restricts the accused from driving with other females for a six-month period. III-Apx.879; XIX-Apx.5016;5121-23. Despite the written policy's reference to "written warning; probation; suspension; termination," the predominant discipline CRST actually imposed is a "verbal warning," which is not listed as a potential disciplinary action. A-317-19; XIX-Apx.5122. The record provides no indication CRST ever issued a written warning, placed a driver on probation, or suspended a driver for sexual harassment.<20> CRST rarely terminated a driver for sexual harassment. VI-Apx.1432- 33¶20; VI-Apx.1444-45 (only two documented instances: John Kewley and another driver not listed on the PWE). Barnes told Gloria South that CRST was terminating her harasser after she reported his repeated rapes, XVII-Apx.4521-31, but the PWE shows her trainer received a "verbal warning, no females." A-318. Barnes told trainee Stacy Barager, when she complained to him in July 2007 about her trainer's harassment, that "he got 20 or so cases a week, and if he fired everybody," they would have "no drivers left." IX-Apx.2286;2268. Even drivers who generated multiple harassment complaints were not immediately discharged. For instance, CRST gave trainer Kewley a verbal warning and six-month "no females" designation when Jonne Shepler reported she was quitting because, among other things, Kewley had "hit on" her. XVI- Apx.4243;A-318;IV-Apx.1016. CRST assigned Kewley to train Bobbi O'Dell eight months later, and when he harassed her, O'Dell complained to Barnes, XIV- Apx.3730, but there is no record CRST investigated her complaint or disciplined Kewley. A-319. Two months later, CRST assigned Kewley to drive with Rebecca Shields, and Shields complained to her dispatchers that Kewley harassed her. IV- Apx.993;A-319. CRST investigated her complaint, but did not discipline Kewley. R.169-1p.1133;A-319. One week after Shields complained, CRST assigned Kewley to train Shannon Alger-Aguirre, and Kewley harassed her. Only after this fourth complaint-from Alger-Aguirre-did CRST terminate Kewley for sexual harassment. A-319. 6. Designation of "no females" as a response CRST imposed "forfeiture of the ability to drive with and/or train with" women (i.e., "no females" designation, or "nf") in response to fewer than half the sexual harassment complaints recorded on the PWE. See A-317-19;VI-Apx.1432 (43.1% of PWE entries indicated "no female partners"). "No females" is not a permanent bar, and a driver can ask to have it lifted after six months. XIX- Apx.5016. "No females" does not affect a driver's pay, but Barnes nevertheless considers it a "form of discipline." XIX-Apx.5015. As happened with Kewley, supra, a "no females" designation did not always prevent a driver from harassing additional women, even when implemented for the full six months. Also, until very recently, compliance with "no females" was not well monitored. III-Apx.879¶28;VII-Apx.1750¶352. For example, on January 18, 2007, CRST gave Kenneth Carmichael a verbal warning and six-month "no females" restriction after Ellen Marley complained he had sexually harassed her. A-318. After less than five months, CRST assigned Carmichael to train Carolyn Hunsucker, and he began sexually harassing her, and while she waited for a return call from her dispatcher, Carmichael sexually assaulted her. XII-Apx.3362-64. Similarly, in September 2007, Kimberly Watson told her dispatcher, HR, and Brandmayr about trainer Leslie Crockett's harassing conduct. XVIII- Apx.4890-92. CRST gave Crockett a verbal warning and "no females" designation, A-318, but Watson testified she watched Crockett leave Brandmayr's office and continue on his route with a new female trainee the same day he was "counseled." XVIII-Apx.4892. Throughout EEOC's investigation and this litigation, CRST continued to record harassment complaints at a rate of almost one per week. In addition to the 54 complaints CRST recorded in 2005, CRST recorded 32 in 2006, 49 in 2007, and 47 during the first 40 weeks of 2008 (i.e., through October 15).<21> IV-Apx.1123. Barnes believed the fact that many women reported harassment demonstrated CRST's policy "is working." XIX-Apx.5027. CRST made only a few, minor changes to its anti-harassment practices from 2006 through the close of discovery in October 2008. CRST instituted a hotline and added dispatchers, along with "safety, training, [and] recruiting," to the categories of non-driver employees who attend annual training on the company's harassment policy. XIX-Apx.5024. One former dispatcher worked at CRST for four months, however, before she received training on the sexual harassment policy. V-Apx.1179¶6. CRST converted the driver anti-harassment training from a series of slides into a ten-minute DVD showing an attorney reading the slides aloud; CRST did not change the content or the fact that each driver is trained only once. XIX-Apx.5024-25;5136. Harassment Complaints from Specific Female Drivers EEOC is appealing the district court's ruling that the following 14 women did not experience severe or pervasive harassment.<22> 2005 Complaints Debra Hindes* complained to CRST that two trainers and a co-driver subjected her to verbal abuse, gender-based denigration, public humiliation, graphic sexual discussion, and sexual propositions. Marvin Timmerman refused to instruct Hindes through dangerous driving conditions, belittling her publicly at a truck stop afterwards because she had been frightened driving down a steep grade. Hindes called her dispatcher in tears and reported Timmerman had "put [her] life in jeopardy" and wouldn't allow her to shower for four days while she had her period. XII-Apx.3279-81. Dispatch developed a plan for her to exit the truck in Ontario, but Timmerman "cursed" at her and said "he wasn't [her] f-ing taxicab." When Hindes called to protest Timmerman's abusive treatment, the dispatcher told her to stay in the back of the truck until they arrived. XII-Apx.3281. Hindes also contacted her dispatcher to report she "didn't feel comfortable" with her second trainer, Bobby Roberts, because he urinated right behind her while she was driving and cursed at her repeatedly. XII-Apx.3284-85. Roberts "would scream" at Hindes, and made "degrading" comments such as, "'You're just an f- ing woman. I don't know why the hell you're trying to drive a truck." XII- Apx.3284. Roberts also humiliated Hindes when he interrupted her conversation with another trucker and began "cussing at [her], telling [her] if [she] didn't get back in the f-ing truck right now, he was gonna leave my rear end there." XII- Apx.3285. Hindes complained, but her dispatcher just suggested she "bear with it for right now." XII-Apx.3286. CRST then paired Hindes with co-driver Ronald Bell, who repeatedly described his sex life as a swinger, told her "he really knew how to please a woman," and propositioned her in various ways, including directly asking if she "was interested in having sex with him" and telling her "'[w]hat goes on in the truck will stay in the truck, no matter what." XII-Apx.3289-90. Victoria Holmes told her dispatcher she was "tired of [listening to] the phone sex" of trainer Jeremy Thurman and "needed to get off that truck." XII- Apx.3308. Thurman boasted constantly of his sexual allure and urinated in a bottle on the truck, but Holmes' primary complaint was Thurman's constant, sexually- explicit telephone conversations with his girlfriend, which created a significant safety risk and interfered with Holmes' training. XII-Apx.3305-07. Thurman engaged in phone sex while he was driving and once hit a pothole and blew out a tire. XII-Apx.3310. Another time, he became "very irate and angry" when he had to stop his phone sex because Holmes insisted she needed instruction in driving on a snowy, mountainous road. XII-Apx.3313-14. When Holmes complained to the dispatcher, Thurman mentioned he could leave her and all her belongings on the side of the road, stating "it had been done" before. XII-Apx.3314. After Holmes got off the truck, she quit her job and returned home, "pretty much an emotional wreck . . . worn out and exhausted" from the experience. XII-Apx.3312-13. Tillie Jones complained repeatedly "to the dispatcher" and then "to anybody [who] would listen" that trainer James Simmons routinely called her "his bitch" and told her she was on the truck to "clean up" after him, including the "Ziploc baggies" and bottles of his urine he left on the truck. XIII-Apx.3434-35. During one argument, Simmons "tried to throw [her] off the truck in the middle of the highway." XIII-Apx.3439. Simmons regularly sat in the truck cab in his underwear while Jones was driving, and rubbed the back of her head. XIII- Apx.3433-35. Jones said she "want[ed] off this truck." CRST told her they would "see what they could do," but she felt the dispatcher did not take her complaint "seriously." XIII-Apx.3434-36. Christina Payne's co-driver, Mark Hoagland, repeatedly propositioned her, suggesting they "share one bunk," despite her refusal of his advances. XIV- Apx.3797;3808-10. CRST's records show Payne reported "her co-driver is making suggestive comments"; Hoagland tried to pull the curtain back while Payne was changing and said, "Let me see"; and Hoagland was "driving recklessly because he [was] mad she [had] a boyfriend." XIV-Apx.3797;3808-09. Because of Hoagland's comments and advances, Payne had difficulty sleeping, XIV-Apx.3799, and worried that Hoagland might "start to fondle me . . . while I'm sleeping and not know it." XIV-Apx.3797. She suffered that anxiety for the four months she drove with him. XIV-Apx.3796-97. There is no indication the official who recorded Payne's complaint ever forwarded it to HR or that HR ever investigated or counseled Hoagland about CRST's anti-harassment policy. XIV- Apx.3800-01;3808-10. Peggy Pratt* had difficulty contacting her dispatcher about her problems with trainer Dan Isley; Isley monitored Pratt's every move, forbade her from using her cell phone or "talking to anyone anywhere anytime," and restricted her movements. Isley "would get [her] food" while Pratt remained on the truck, and even followed her to the bathroom and waited outside for her. Pratt felt like a "prisoner" who was "under his thumb." XV-Apx.4010-11. Isley hurled gender-based insults and epithets, telling Pratt she "was one of those prim and prissy girls," calling her a "cunt" around ten times, and a "fucking bitch" so many times she couldn't count-"at least twice a day." XV-Apx.4020- 21. He called her "f-ing slow" and told her, "you're not a driver, you don't know what it takes, you're just not up for this." XV-Apx.4020-21. Isley never let Pratt drive and failed to teach her basic skills, such as fueling procedures, then "screamed at" her because she "was supposed to know better." XV-Apx.4011. Isley "would blow and scream and swear and cuss" at Pratt. She was "petrified" and "scared to death," and "cried [her]self to sleep at night." XV- Apx.4011;4018. The dispatcher, hearing Isley screaming at Pratt in the background when Pratt called CRST for directions, said, "I can't believe you're in the truck with this man." XV-Apx.4011-13. No one contacted Pratt thereafter to see if she was all right. A few days later, Pratt called dispatch and said she "wanted off the truck," but had to end the call when Isley returned to the truck. Pratt called dispatch a third time, "in tears," demanding to "get off this truck," and the dispatcher directed Isley to bring Pratt back to Oklahoma City. Isley was furious for the entire 250- mile drive back, "screaming" at Pratt, "calling her names," and telling her she "would never, ever be a driver," "can't handle anything," and was "not cut out for the job." XV-Apx.4012-13. Linda Skaggs reported that during the month she drove with Eules Baker, he made sexual comments "on a daily basis, every time [they] were in the truck." Baker told Skaggs "about how great of a lover he was," described "his sexual experiences with other females," and repeatedly propositioned Skaggs for sex in the crudest possible terms, telling her three or four times that "he could fuck [her] brains out," and boasting "[h]e would make [her] have more than one orgasm[], more than anybody else [she'd] ever known." XVI-Apx.4470. When Baker offered her "a hundred bucks" to have sex with him, Skaggs contacted her dispatcher, told him Baker "was drunk" and "making sexual comments" to her, and said she "wanted out of the truck." XVI-Apx.4470-71. The dispatcher urged Skaggs to "try to get along" with Baker, or else "buy [her] own bus ticket home." She "couldn't afford [a bus ticket]," so she stayed on the truck. XVI-Apx.4471. Complaints During EEOC's Investigation While training with Mike Karns, Tracy Hughes* encountered persistent sexual propositions, frequent comments about her breasts, and hostility when she refused his advances. Karns told Hughes "he'd sleep with me if he could," and "asked if I wanted him to crawl into my sleeping bag with me to keep me warm." XII-Apx.3349-50. Karns frequently commented on Hughes' chest size and "would compare my chest size to other women's," but after she rebuffed him, his comments became mean and derogatory. XII-Apx.3349-50. Karns engaged in stalking behavior, watching Hughes drive at night when he was supposed to be sleeping, and following her whenever she left the truck, even when she went to the bathroom or to get something to eat. XII-Apx.3350-55. Hughes could not use Qualcomm to communicate with dispatch because Karns "reviewed all incoming and outgoing messages every day." XII-Apx.3353. When Karns told Hughes he planned to "find a nice quiet town to park in so you and I can . . . spend quality time together," she called dispatch to report "everything that had been going on for a week" and demanded that CRST "[g]et me off this truck now." XII-Apx.3352. After that, she quit. XII-Apx.3354. Patricia Marzett's* working relationship with co-driver Bruce Johnson deteriorated when he began discussing sexual matters and making unwelcome advances, such as sitting close to her on her bed and asking "what should we do?" XVIII-Apx.4870. Marzett rebuffed him, but two weeks later, while waiting overnight for a load, Johnson showered and entered the hotel room "in his towel with nothing on"; then while Marzett was showering, she knew Johnson "had come into the bathroom . . . trying to see me naked." XVIII-Apx.4871-73. Several weeks later, while parked overnight at a hotel, Johnson repeatedly asked Marzett if she was "coming," suggesting "was I going to have an orgasm any time during the night." XVIII-Apx.4873. After they returned from home leave, Johnson talked about being unhappy with his wife and his desire to have sex with a black woman. He commented that Marzett had "a real nice body," and said, "'those are nice, girl,'" while staring at her breasts. Johnson propositioned Marzett, saying he needed "to relieve some stress," and asking would she help him. Johnson stopped at a hotel, told Marzett that "he was going in to relieve some stress" and said she should "go find somewhere to park the truck." She found a truck stop where she "had to park way in the back." Qualcomm was broken, it was dark outside, and no one knew where she and Johnson were. Marzett "was scared to death to go out of the truck" and "had to hold my urine all night." XVIII-Apx.4874. Marzett told Johnson she no longer wanted to drive with him, "and the next thing I know he pulls over to the side of the road" - "out in the middle of nowhere and it's dark outside" - "and he says . . . 'If you don't want to drive with me anymore, you can get the fuck out right now.'" Qualcomm was working at that point, so Marzett sent a message to CRST. She left the truck that night, but had to find her own hotel and transportation; CRST did not assist with these arrangements. XVIII-Apx.4876-77. The dispatcher never suggested she contact HR about the incident, and no one ever contacted her to follow up on her complaint about Johnson. XVIII-Apx.4880-81. Virginia Mason's* trainer, Fred Norwood, told her detailed stories of his sexual activities with other trainees and "bragged" about his sexual prowess: "how he had been quite the ladies' man" and "used to get paid for sex"; "how large he was in the genital area and about how it hurt women"; and "what a fine old time [other trainees] had had in the back of his truck." XIII-Apx.3494-97;3507. Norwood explicitly described "sexual positions" with "other women on his truck" and "sexual stuff that they had done." XIII-Apx.3507. Mason found Norwood's boasts "disgusting." XIII-Apx.3495. Mason did not report Norwood's harassment to her dispatcher because she had "no idea" how to operate Qualcomm, and Norwood told her if she "needed to use anything" on the truck she had "to let him know." XIII-Apx.3495-96. Instead, Mason called her fiancé's trainer, Chip Lee, and told him what was happening and that "it was progressively getting worse." Lee advised her to "get off the truck" because she was being harassed. XIII-Apx.3500-02. When Mason "pressed the issue" CRST routed the truck to a terminal where Mason got off Norwood's truck. XIII-Apx.3505. A woman later called her asking about her experiences with her first trainer, XIII-Apx.3503, but there is no record of an investigation and no entry on the PWE. A-317-19. Mason attested Norwood's behavior "scared the bejesus out of me 'cause he's a really large man." XIII-Apx.3497. She was unable to sleep on the truck because "I was scared for my life." XIII-Apx.3509. Norwood's incessant sex talk left Mason "a destroyed wreck." XIII-Apx.3497. It took her "three days" to "get over being a nervous wreck and crying and worried about what other strange man" she would "get on a truck with." XIII-Apx.3498. She "slept for two days straight" and was "completely exhausted" and "miserable." Mason endured "bad dreams," in which she "would cry and . . . scream out," and try to hit her fiancé. XIII- Apx.3503. Anthony Sears called Sherry O'Donnell* and told her "he was looking for a girlfriend to be a co-driver." O'Donnell, who is single, told him "if we like each other, we can see . . . with the stipulation that I wouldn't have to be [his girlfriend] if we didn't like each other." XIV-Apx.3742-43. Sears and O'Donnell did not get along. O'Donnell felt Sears, who was her co-driver, was acting as if he had the authority of a trainer and she "was his student" and "should be his girlfriend," expecting her to "behave in certain ways and do certain things" that she did not wish to do. XIV-Apx.3747. During seven days on the road together, Sears repeatedly told O'Donnell she "was crazy or schizophrenic," and claimed "he could influence the company to request that [she] take a mental examination." XIV-Apx.3744-45. In response to O'Donnell's efforts to forge a better working relationship, Sears suggested, on more than three occasions, that "it would be good if I agreed to drive naked." "Driving naked would have been [Sears'] answer to us getting along." XIV-Apx.3745. Sears "didn't like to wear pants much himself," and sometimes drove in his underwear. XIV-Apx.3769. O'Donnell's experience "just got worse from there." Sears refused to go to a nearby truck stop so she could use the restroom and told her to "pee in the [customer's] parking lot." XIV-Apx.3745. Later, Sears "started screaming at me that all he wanted was a girlfriend." When O'Donnell "kept telling him no," Sears "got angry" and "grabbed my face with his fingers . . . so hard that my lip was cut on my tooth . . . and said 'Shut up and drive.'" XIV-Apx.3746. When they arrived at the CRST terminal, O'Donnell reported the assault and "told CRST that I wanted to get off the truck," but she "was told to keep driving with [Sears]." O'Donnell objected that "it was not safe" because "I was sure that he would assault me in a day or so if I stayed with him," and "[o]nly then did CRST say it was okay to get off the truck." XIV-Apx.3746. O'Donnell spoke with Barnes and, in a written statement, reported that Sears "told [her] to pee in a parking lot" and "had been verbally abusive and mean." XIV-Apx.3751-52. O'Donnell felt the undisputed facts of Sears' "physical assault" and her injury "would trump any innuendos or he said/she said or petty arguments" in which "I said, well, he wanted a girlfriend, then he could say, well, no, I didn't, she's schizophrenic." XIV-Apx.3752. Just a few hours after Jonne Shepler* got on Alex Alston's truck, he showed her his collection of pornographic DVDs and suggested watching together. XVI-Apx.4233-34;4250. Shepler understood Alston's invitation to watch porn as an attempt to "make a play . . . because that's just how guys are in that type of business." XVI-Apx.4250. Alston had a "bad temper," and Shepler advised CRST that he "shouldn't be allowed to train anybody, male or female, because of his problems controlling his temper," which he lost "on a regular basis at the fuel islands, at truck stops, going down the road if somebody cut him off." XVI-Apx.4234;4251. Alston also made violent threats against others and Shepler felt afraid of him "[j]ust about all the time because . . . he's just real violent." XVI-Apx.4235;4251. Shepler finally "had enough of him bitching at me, screaming at me," and called dispatch to get her off the truck, which made Alston furious. XVI-Apx.4235. The day she left Alston's truck, Shepler mentioned Alston's porn collection to CRST safety managers, who told her, "'Well, we don't need to know about that.'" XVI- Apx.4234. She "wasn't in a position" to report Alston's porn while on the truck because she "was always with him" and her complaint "would have gotten right back to him, and then it would have been worse on the truck." XVI-Apx.4235. CRST sent Shepler to a hotel to await her next assignment. Trainer John Kewley "just showed up" at her hotel room "around 11 at night" and told her his truck was in the repair shop. She said he "could have the other bed" and when she commented in the morning that the room was cold, Kewley "pulled back the covers of his bed and said, 'Come on in, and I'll keep you warm.'" Shepler ignored him, but when he repeated the invitation she told him that she didn't "sleep with strangers" and "wasn't interested." Kewley agreed to back off. XVI- Apx.4236-37. At a truck stop the next day Kewley said, "'Oh, by the way, I forgot to mention, students take showers with their trainers.'" Shepler tried to dismiss it as a joke but his sexual propositions persisted "on a daily basis" and grew more crudely explicit as he bragged about his proficiency "at performing oral sex on women," and said he wanted to show her what it was like. Kewley also played "audio porn . . . on XM Radio" on a daily basis. XVI-Apx.4237. He boasted about his sexual attributes, ability to give "head," and the size of his genitals. Shepler was "offended and appalled and disgusted" by Kewley's repeated overtures. XVI- Apx.4250. Kewley's harassment interfered with Shepler's ability to do her job, making it "hard to concentrate on . . . driving sometimes," XVI-Apx.4233, and with her ability to sleep. Shepler did not complain to CRST about Kewley while on his truck because she only needed eight more days to complete her training and thought she could "deal with it" for that period and then "get off the truck." Shepler "figured it would get back to him" if she reported his behavior, and feared he "could have put me off the truck in God knows where" or "made life hell for me to not graduate as a driver." XVI-Apx.4238. After completing her training, Shepler sent a Qualcomm message in April 2007 to inform CRST she was quitting, and referenced a "porno collection" on one truck and having trainers "hit on me." XVI-Apx.4243. Complaints after CRST Ended Conciliation While driving with trainer David Byerley, Dorothy Dockery* endured incessant physical contact, including his "backing into me, leaning over the top of me, leaning over the back side of me, . . . his butt backing into my butt. . . . just bumping, and then he would touch my shoulder a lot. . . . like he would be talking to me and he would be touching me, like putting contact on me." Dockery "didn't feel comfortable" and "recoiled" from his touch. Byerley also stared at Dockery "[a]ll of the time," sometimes "[l]ike he was undressing me" as if "I was naked," and at other times "glaring" - "like he hated my guts." One evening, Dockery descended from her bunk to use the restroom and observed Byerley masturbating in the lower bunk. She "got out of there" because "it scared me." XI-Apx.2843- 44. Byerly asked her personal questions with sexual content, about her marriages and her children's fathers, implying the one who died of a heart attack was worn out sexually by her. XI-Apx.2844-45. Byerley repeatedly ignored Dockery's requests to stop to use the restroom, and she ended up urinating on herself several times. Other times, Byerley stopped in locations with no available restroom facilities, forcing Dockery to urinate outside the vehicle, while telling her she "would be fined or lose business if [she] were [caught] urinating outside of the truck." XI-Apx.2849. Byerley also denigrated female drivers and made constant racist comments, claiming "he had cut a nigger's throat with a knife" when "a couple of . . . niggers . . . were beating him up, and he pulled his knife and he cut the throat of one of them and killed him." XI-Apx.2846. Dockery "felt very sick, disgusted, and [] did not feel safe around him at all," and "just wanted off of the truck." XI-Apx.2841-42. Dockery repeatedly tried to reach her dispatcher "because things just kept getting . . . worse." XI-Apx.2842. When she used Qualcomm to contact dispatch, Byerley "yanked the computer out of my hand . . . and he pulled the message up and he read it. . . . He started yelling at me, saying that he wasn't a racist, and that he wanted me off of his F'ing truck." When Dockery objected, he responded, "'Well, this is my truck and my F'ing computer. I will do what I want.'" Byerley "was yelling" at Dockery "to get out of his truck and that everything that he had there he owned it and it wasn't mine to use" and "was trying to shove me out of his truck in the wilderness." XI-Apx.2846-47. Dockery described lingering distress over her experience driving with Byerley: "I just wanted to be a truck driver, and it's just not happening at all. It's bothered me. It gets me upset when I think about it, because I could be driving right now and I am not. . . . I cry sometimes, I guess." XI-Apx.2850. When January Jackson* first met trainer Patrick Dorsey, he was "looking me up and down from my breast on down." He told her, "[t]he number one rule [on the truck] was what happens in the sugar shack stays in the sugar shack." On the phone, Dorsey described Jackson to a former trainee "in a very vulgar manner," saying, "'This bitch is bad as hell,' while grabbing his genitals." Every other day, Dorsey called his ex-trainee and emphasized "how sexy" he found Jackson, while "moaning and groaning like, 'Ooh, she - mm-hmm, man, she can be Ms. Dorsey. I'm telling you, dog, she can be Ms. Dorsey. She can get it.'" XIII-Apx.3383-84. While instructing Jackson on driving skills, Dorsey "would put his hand on my leg while he was talking." XIII-Apx.3384. After Jackson completed her first full eleven-hour shift, Dorsey "yanked" her into a hug, and "put his hands on my lower back and [] pulled my body close to his," "whispering in my ear . . . 'I'm going to make a truck driver out of you yet, girl.'" Jackson "pushed him away," feeling "uncomfortable" and "threatened." XIII-Apx.3384-86. When Jackson put ChapStick on, Dorsey looked her "up and down" and "grabbed his genitals and he said, 'Ooh, girl, you shouldn't have did that. That just enhance you even more.'" Another time, Dorsey invited Jackson to "share the bunk with him." XIII- Apx.3387-88. Jackson responded repeatedly, "I'm not here for that." XIII- Apx.3386. Jackson feared Dorsey "[t]he whole time" they drove together. He was "extra hard" on her after she rejected his propositions, and constantly shouted and used profanity. XIII-Apx.3395. Jackson believed she was "in danger" and "needed to get off the truck." XIII-Apx.3386. She did not know how to use Qualcomm, and was reluctant to contact her dispatcher because Dorsey referred to him as "my man" and "my boy," and Jackson "didn't think he would believe me." Jackson was also afraid that Dorsey would see the message if she complained while still on the truck, and she didn't know how "this 250-pound guy" would "react to me putting out a sexual harassment [complaint] or even mentioning those words." Dorsey "had mentioned one time how he put somebody off the truck," and Jackson "didn't see how it would be possible for me to get in contact with [CRST] . . . considering that [Dorsey] is right there." XIII-Apx.3389-93. Jackson pretended she could not drive at night, causing Dorsey to decide he no longer wanted to train her. XIII-Apx.3389-90. Jackson had discussed Dorsey's conduct with her cousin, Brandon Weems, another CRST driver, XIII-Apx.3385, who told his dispatcher Jackson was "having some issues with her trainer . . . [who] was trying to sleep with her," and asked if he could complete Jackson's training, XIII-Apx.3388;3390, which he did. There is no record the dispatcher reported this to HR. XIII-Apx.3393-94. Jackson resigned when her cousin quit, because, after Dorsey, she no longer felt "comfortable" or "safe driving with another male that wasn't a family member." XIII-Apx.3394. As a consequence of Dorsey's harassment, Jackson has had trouble sleeping and lost weight. She became conscious that people look at her in a "sexual" or "predatorial manner," and consequently has lost confidence in her ability to engage in male-dominated activities or work. XIII-Apx.3391;3395. Throughout Lucinda McBlair's* four-week training with David Martinez, he refused to let her stop the truck to use the toilet, and allowed McBlair to bathe "four times at the most" during "all the 28 days that I was on the truck," then "complained about the odor." To avoid relieving herself on the truck, McBlair "learned [] to go without drinking water" and "to wait" six hours for a restroom break, which caused a kidney infection. XIII-Apx.3524-25. Martinez intimidated McBlair by constantly screaming in her ear, "Fuck you, fuck this." XIII-Apx.3525. He verbally abused her when she begged him to let her stop to use the bathroom. He would "jump out of the back and get in [her] ear and scream . . . 'Fuck you' or 'motherfucker, you're keeping me awake.'" When she objected, he responded, "'If you don't like it, get off the fucking truck.'" Martinez "constantly" told McBlair "stories about different drivers" he had thrown off the truck and "told them to figure their own way home." XIII-Apx.3524. McBlair was "very apprehensive" and "thought he was really going to physically hurt me." XIII-Apx.3531. She cried at night - "every time I would get back in the sleeper, I would start bawling." XIII-Apx.3529. By the time she got off the truck, McBlair "was a nervous wreck," and "for quite a while" "could not stand anybody to be close to me." XIII-Apx.3525. Martinez regaled McBlair with sexually explicit anecdotes and remarks "about the parties that his daughter arranged for him with hookers," his daughter's plan to hire "two hookers" with "big boobs" to care for him, XIII-Apx.3525, and a fantasy of "floating in the ocean with six naked young women" who desired him and "wanted him - and this is his exact words - to stick my dick up their ass." XIII-Apx.3530. Martinez also watched sexually explicit movies "constantly at 500 decibels" and McBlair could not escape hearing the "sheer volume of sexual ecstasy" blaring from his speakers. XIII-Apx.3525. When Martinez left her at a truck stop in Amarillo and drove off without her, McBlair called CRST's safety manager and reported that Martinez "wasn't trying to train me to drive a truck; he was trying to change my philosophy on life [and] my viewpoint on sex." The safety manager responded, "that's not my department, you call human resources." XIII-Apx.3525. CRST discharged McBlair shortly after she completed her training. XIII-Apx.3536. She wrote a letter to CRST complaining about Martinez's "[a]busive, insulting, sarcastic, and rude" behavior. throughout "the whole training period." CRST never responded to her letter. XIII- Apx.3533. Brandmayr "counseled" Martinez on "interpersonal skills" after discussing McBlair's comments with him, warning that "if it comes up again it will put [him] in a bad situation." XIII-Apx.3537. Women's Harassment Complaints to CRST EEOC is appealing the court's ruling that CRST is not liable for the harassment of 39 women because CRST had no notice.<23> Women complained to CRST about harassing conduct in a variety of ways. Some reported harassment as soon as it escalated to an unacceptable point, others as soon as they were physically able or felt safe to do so, often as they were extracting themselves from the harassing situation. E.g. Cunningham, X-Apx.2736; Hindes, supra 28-29; Hughes, supra 33-34; Marzett, supra 34-36; McIver, XIII-Apx.3595-600; O'Donnell, supra 37-39; Peeples, XIV-Apx.3842-44;3853-63; Pratt, supra 31-33; Quintanilla, XV-Apx.4035-37; Shepler, supra 39-41; Smith, XVI-Apx.4509-13. For instance, after Bethany Broeker's trainer sexually assaulted her on her third day of training, she retreated inside a truck stop, called her mother, and waited for her aunt and uncle to arrive, at which point she immediately reported the assault to her dispatcher, submitting a follow-up report to HR the next day. X-Apx.2518-19. CRST gave her trainer a verbal warning and transferred him to another branch of the company. X-Apx.2522-23, A-319. Antoinett Baldwin's trainer, Steven Pears, made repeated sexual advances. IX-Apx.2247. She did not report his conduct immediately because she did not own a cell phone, Pears would not allow her to use Qualcomm ("he said [it's] his truck, and he can do what he want to do in his truck"), and she had hoped his advances would stop if he heard "no" enough times. IX-Apx.2247-48. On a weekend, in mid-run, he ordered Baldwin off his truck and left her at a truck stop in Illinois. IX-Apx.2249-50;2254-55. When Baldwin called the dispatcher to find out what to do, she did not report Pears' sexual advances because the dispatcher "chose not to care about anything . . . going on in that truck," telling her, "That's Steven's truck. He can do whatever he want." IX-Apx.2250. Baldwin called CRST on Monday morning and told someone in HR everything that happened. IX-Apx.2251-52. CRST responded by giving Pears a verbal warning and "no female partners" designation. A-318. Jennifer Susson endured her trainer's sexually-suggestive comments and touching for about a week, contacting CRST as soon as it appeared he might become violent (he raised his hand as if to hit her and then spit in her face instead). XVII-Apx.4589;4596-98. CRST arranged for another driver pair to pick her up, but never told her how CRST responded. XVII-Apx.4598-99. CRST gave her trainer a verbal warning. A-317. Robin Timmons's trainer, John Boyle, called her sexually-derogatory epithets, repeatedly exposed himself while urinating outside the truck, and drank so much he slurred his words. Timmons called her husband after midnight to come get her, and called the dispatcher the next morning, who told her to call the police. XVII-Apx.4667-68. Timmons returned to Cedar Rapids and described Boyle's drinking, verbal abuse, and urinating to CRST Safety personnel. XVII-Apx.4668- 70. No response is indicated on the PWE. A-317-19. A few women reported harassment directly or indirectly to another CRST official who, according to Barnes, XIX-Apx.5053, was required to report it to HR. E.g. Granofsky-Fletcher, supra 14; Mason, supra 36; Shepler, supra 39; J.Jackson, supra 45; McBlair, supra 46-47. For example, Bonnie Batyik reported her trainer's harassment only after she completed her training because he had threatened that it "wouldn't be good for [her]" if she reported him. IX-Apx.2326;2334. During training she told another CRST driver, who passed the information along to their mutual recruiter. The recruiter called Batyik, but she could not speak because she was crying at the time. The recruiter apparently did not follow up. IX-Apx.2327. Batyik reported everything to HR after she completed her training. IX-Apx.2327. Sharon Pinchem told her former trainer about the harassment while it was occurring, and then reported it to dispatch after she arrived back in Cedar Rapids and got off the harasser's truck. XV-Apx.3988-90;3999-4000. Kathleen Seymour told her boyfriend, who called someone from orientation who called Mike Schultschik, who then helped her get off the truck; she later met with HR and told them everything that had happened. XV-Apx.4159-62. Some women contacted their dispatchers while they were still on the truck and, although they did not always describe the harassment, made comments indicating they were in distress. E.g. Pratt, supra 31-32. For example, Tammi Pile called her dispatcher three times and asked to be removed because of problems with trainer Milton Artis. XV-Apx.3938. In her first call, Pile said Artis "expected too much out of [her]," was "making her do things [she] was not comfortable with," and "there was some confrontation." XV- Apx.3933-35. The dispatcher insisted she stay on the truck, telling Pile to "grow up and act like an adult." XV-Apx.3933. During her second call, the dispatcher told Pile to confront Artis and explain she did not like his behavior, but that only set Artis off more. XV-Apx.3933-34;3938-40. Only after Pile's third call- reporting she awoke to find Artis lying across her-did the dispatcher arrange for the truck to return to Cedar Rapids, where Pile told everything to the Safety Department. XV-Apx.3938-40. CRST apparently did not discipline Artis. Betsie Ybarra told her dispatcher that her trainer had thrown her things off the truck without warning and the dispatcher ordered him to let Ybarra back on. XVIII-Apx.4988-89. When Ybarra and her trainer met with the dispatcher four days later in Cedar Rapids, she could not talk about the harassment because the trainer was sitting next to her. Ybarra was crying, however, and told her dispatcher she needed to leave the truck. The dispatcher never asked why she was crying, and told her she had to stay with the same trainer. XVIII-Apx.4990;4997. Ybarra got back on the truck as directed, but left immediately afterward (on her own). She waited two days for a new trainer; her original dispatcher then made her undergo an extra week of training for having gotten off the first truck without permission. XVIII-Apx.4991-92. Rachel Tucker called her dispatcher three times, while she was still on the truck, to complain about co-driver Jason James, who exposed himself and pressured her into non-consensual sex. XVII-Apx.4701-02. Tucker told her dispatcher, "There's some things going on, on the truck that I really don't like and [] don't approve of [and] I'm not getting back on the truck." The dispatcher never asked what was going on or why she would not continue driving with James, XVII-Apx.4702;4707, and apparently never referred the matter to HR; James received no discipline. Bonnie Moesch called her dispatcher three times, asking that co-driver Chris Dew be removed from her truck. XIII-Apx.3648. Dew exhibited "jealousy" over Moesch's interactions with male friends, told her he loved her several times a day, and while she was asleep crawled into her bed twice, once while naked. XIII- Apx.3640-42;3648. Moesch told the dispatcher Dew was driving her nuts, was too much to handle, and was making her feel captive in her own truck. Dispatch finally removed Dew after Moesch's third demand, but never asked Moesch what Dew had done nor referred the matter to HR. XIII-Apx.3648. Some women did not contact CRST sooner to report harassment because they could not identify their dispatcher, did not have access to a functioning Qualcomm, did not know how to use Qualcomm, or were prevented by their trainer or deterred by their trainer's friendship with the dispatcher. E.g. Coronado, X- Apx.2715-18; Desonier, XI-Apx.2796-801; Hughes, supra 33-34; Mason, supra 36; Dockery, supra 41-42; J.Jackson, supra 44. Mary Beaton, for example, was unable to report her trainer's sexual advances as they were happening because "he never let [her] use" Qualcomm. She reported the harassment to Jim Barnes as soon as they returned from their first week out. IX-Apx.2345-46. Kim Chisholm did not know who her dispatcher was. Her initial dispatcher had been terminated; her trainer said they had no dispatcher and did not know who was assigning them loads. X-Apx.2635-36. She "didn't know how to operate" Qualcomm, X-Apx.2638-39, and did not recall ever being told she could report harassment to HR. X-Apx.2632. CRST's Responses to Complaints EEOC is appealing the court's ruling that CRST responded effectively to the complaints of four individuals. Some dispatchers responded slowly or not at all to harassment complaints. For instance, Maybi Fernandes-Fabre and Faith Shadden both pressed their dispatchers repeatedly before receiving assistance. Fernandes's dispatcher removed her from the truck only after her third call in four days. XI-Apx.2926. Although CRST apparently investigated her complaints that her trainer exposed himself, urinated in her presence, and required her to urinate in a cup, XI-Apx.2922-26, the PWE shows no response. A-317-19. Shadden's trainee made persistent advances, "couldn't take no for an answer," and ultimately tried to force himself on her when they stopped for the night. Shadden's dispatcher did not act on her request that he be reassigned until Shadden insisted she would not let him back in her truck. XV-Apx.4172-75. After investigating her complaint, CRST gave him a verbal warning. A-318. Ginger Laudermilk's trainer threw her things off the truck as she was attempting to contact her dispatcher to report his harassment. XIII-Apx.3451-52. Laudermilk reported her trainer's repeated suggestions of a "threesome," as well as several safety violations (prohibited U-turns) to both her dispatcher and Brandmayr, XIII-Apx.3452, but apparently neither passed her harassment complaint along to HR, and no investigation or disciplinary action ever occurred. A-317-19. Both Shadden and Laudermilk reported harassment along with safety violations, and both women perceived that CRST was more concerned about the safety violations than the reported harassment. XIII-Apx.3452-53;XV-Apx.4172. Diana Vance's trainer, Jim Falk, "grabbed [her] ass" and called her "bitch" and "fucking whore." Other truckers told Vance that Falk said if she did not "fuck him" she would not pass. Falk never taught Vance how to use Qualcomm and told her it was broken, but she figured it out and sent a message to Brandmayr. XVII- Apx.4732-33. When Falk learned of her report, he became enraged, "beating the steering wheel as we're driving down the highway, calling me everything there was to call me," and putting her "safety at risk." When Vance asked to "get off at the next truck stop," Falk instead kept going and dropped her off "in Nebraska in a mudhole." Vance later begged Brandmayr, "whatever you do, please never put a young woman with him." XVII-Apx.4733. CRST gave Falk a verbal warning and "no females" designation. A-319. A number of women, like Starke, were harassed by successive drivers. CRST addressed each specific complaint by simply separating the woman from that harasser. For example, Mechelle Schuder reported being sexually harassed by four co-drivers. XV-Apx.4123-24 (Irwin Harrell & Charles Clark), XV- Apx.4125-27 (Jeff Hodson), XV-Apx.4127-29 (Larry Saunders). After investigating each complaint, CRST gave a verbal warning to Irwin Harrell and took no action on any of the others. A-318. Three successive trainers harassed Rhonda Wellman between December 2007 and February 2008, and she reported all three. CRST recorded the second complaint (against trainer Dylon Buckley) on the PWE, but not the other two. A-319. Wellman received no CRST follow-up on her first and third complaints, although she heard the first harasser was later fired for threatening CRST office personnel. XVIII-Apx.4898-918. Wellman complained to Jim Schommer, Vice- President of Operations, that "all your drivers make passes" and CRST needed to "do something" to let male drivers know CRST will not "cover [for] them," telling Schommer all three drivers said "the company will stick up for them" and "believe the trainer, not the student." XVIII-Apx.4916;4920. See also IX-Apx.2259;XIII- Apx.3420-21;3436;XV-Apx.4089. Schommer responded, "I don't believe it. I don't believe any of our trainers would act in such a way." XVIII-Apx.4919. Three co-drivers and a manager harassed Robryna Fitch. When Fitch reported to dispatch in March 2008 that co-driver Enrique Montiel "verbally abused" her by repeatedly calling her "bitch" and "whore," the dispatcher asked did she know "how truck drivers talk?" XI-Apx.2955-57;2959. When she reported to a CRST manager in May that co-driver Robert Thompson pursued her sexually, wanted "to eat [her] pussy," asked to watch her change clothes, suggested she was "sexy" and could earn money as a prostitute, and called her "bitchy" when she told him not to touch her, the manager responded that Fitch was "a very beautiful woman," described his marital problems, and invited her out for drinks. XI-Apx.2959-66. In July 2008, Fitch's third co-driver, Colton McClure, "walked around in his underwear in the truck" and twice asked her to have sex. XI- Apx.2977. Fitch discussed all these incidents with Oetken, XI-Apx.2983, but there are no entries on the PWE. A-319. See also K.Carney supra 14-15 (three harassers); Hindes supra 28-29 (three harassers). STANDARD OF REVIEW The district court's orders dismissing EEOC's lawsuit for failure to conciliate and awarding attorneys' fees are reviewed for abuse of discretion, but the discretion afforded courts "is a judicial and not an arbitrary one," Kern v. TXO Prod., 738 F.2d 968, 970 (8th Cir. 1984) (citation omitted), and is abused where, as here, it is based on "an erroneous view of the law," Cooter & Gell v. Hartmarx, 496 U.S. 384, 405 (1990). This Court reviews the application of judicial estoppel for abuse of discretion. Stallings v. Hussman Corp., 447 F.3d 1041, 1046 (8th Cir. 2006); a grant of summary judgment de novo, Sandoval v. American Building Maintenance Indus., 578 F.3d 787, 792 (8th Cir. 2009); and discovery sanctions for abuse of discretion, Sentis Group v. Shell Oil Co., 559 F.3d 888, 898 (8th Cir. 2009). SUMMARY OF ARGUMENT The court erred in dismissing EEOC's suit based on purportedly inadequate efforts to conciliate EEOC's claim that CRST subjected numerous women to a sexually hostile environment, where EEOC notified CRST of its finding and invited CRST to conciliate. The court erred in believing EEOC must identify all potential victims before filing suit, particularly where CRST knew EEOC believed other women had been harassed; EEOC indicated how it would proceed to identify them; EEOC indicated it wanted modification of CRST's harassment policies and monetary relief for all victims; and CRST chose to end the discussion of voluntary resolution because of a separate monetary demand by Starke's counsel. Even if EEOC's conciliation efforts were somehow deficient, a stay, not dismissal, would be the appropriate remedy. The court misapplied the judicial estoppel doctrine in barring EEOC from obtaining relief for three women based on their actions in bankruptcy proceedings. EEOC was not a party to those proceedings and estoppel thus cannot properly be applied in this public law enforcement action. The court misapplied summary judgment standards, and invaded the province of the jury, in precluding EEOC from obtaining relief for victims the court erroneously concluded had not experienced severe or pervasive harassment, had not provided timely or adequate notice of their harassment to CRST, or had received adequate remedies for harassment they reported. The court misapplied controlling legal standards in concluding that CRST's trainers were not supervisors of their trainees where they had the power to determine whether trainees would be promoted to full-driver status. The court abused its discretion in arbitrarily barring introduction of crucial documentary evidence of complaints of harassment as a sanction for not having produced women for deposition, instead of merely barring relief and live testimony from these women. Even if this Court were to affirm on the merits, it should nevertheless reverse the award of attorneys' fees and expenses because EEOC's actions comported with the language and intent of Title VII, and no court has previously held that EEOC's conciliation efforts were inadequate and dismissed a lawsuit on facts comparable to these. EEOC thus reasonably believed it had fulfilled all pre- suit requirements, and the award of fees was improper. ARGUMENT I. THE DISTRICT COURT MISCONSTRUED EEOC'S TITLE VII ENFORCEMENT RESPONSIBILITY. One of EEOC's tools for rooting out discrimination is filing suit under section 706, 42 U.S.C. § 2000e-5, to seek relief for multiple persons, including persons who never filed a charge. General Tel. Co. v. EEOC, 446 U.S. 318, 323-24 (1980) ("EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals"). When EEOC files an enforcement suit, it acts on behalf of the public interest, not as counsel for aggrieved individuals. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977). A. The District Court Erred in Dismissing EEOC's Suit for Failure to Conciliate. Title VII's pre-suit requirements are straightforward and, contrary to the district court's conclusion, EEOC satisfied them here. Section 706 directs EEOC, before filing suit, to investigate allegations of discrimination and, where it has reasonable cause to believe discrimination has occurred, to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). EEOC meets its responsibility by outlining the basis for its conclusion that the law was violated and giving the employer an opportunity to comply voluntarily with the law. Congress provided that if EEOC is "unable to secure from the respondent a conciliation agreement acceptable to the Commission," EEOC "may bring a civil action against any respondent . . . named in the charge." See 42 U.S.C. § 2000e- 5(f)(1) (emphasis added). If a respondent rejects EEOC's conciliation offer, EEOC "is under no duty to attempt further conciliation." EEOC v. Keco Indus., 748 F.2d 1097, 1101-02 (6th Cir. 1984). Courts evaluate EEOC's efforts in accord with Congress's deference to EEOC. Id. at 1102 (district court should determine only "whether EEOC made an attempt at conciliation;" "form and substance of those conciliations is within the discretion of the EEOC"). EEOC met conciliation requirements here by investigating, issuing a determination advising CRST that EEOC found reasonable cause to believe CRST had "subjected [Starke and] a class of employees and prospective employees to sexual harassment, in violation of Title VII," inviting conciliation, and explaining the elements of an acceptable conciliation agreement. See supra 17-18. CRST discontinued conciliation discussions, not because it wanted to know about the number or identity of the other affected women, but solely because of Starke's separate monetary demand. Supra 17-18. The court based its contrary conclusion about the sufficiency of the administrative pre-requisites on several errors. First, the court believed EEOC's investigation focused only on Starke, not other women, and was limited to an 11- month time frame. A-238. To the contrary, EEOC sought information about the experiences of other women trainees and drivers and requested information beyond the initial 11-month period. See supra 7-8;16-17. The court noted that EEOC sought information about other women, A-238-39n.4 (quoting RFI #3), but reached the counterfactual conclusion that CRST, in providing names of two women alleging harassment by different CRST drivers, had "provided more information than the EEOC requested." A-239n.5. The court's reading of RFI #3 conflicts with the plain meaning of the question and with CRST's interpretation, as evidenced by its response. Similarly, the court failed to note that, although EEOC initially indicated the "relevant period" for the information sought was 2005, A-238, EEOC's investigation broadened to address an on-going time-frame. Supra 16-17. To the extent the district court found otherwise, it erred. Second, the court erroneously concluded that CRST provided all information EEOC sought in its initial request, A-239, and that EEOC followed a "sue first, ask questions later" strategy, A-272. As discussed supra 16-17, EEOC attempted to gather information about the scope of the harassment problem during its investigation, but CRST significantly underreported the complaints it received. Third, the district court mischaracterized the conciliation exchange between CRST Attorney Wolle and EEOC Investigator Bloomer, in saying Wolle "unsuccessfully implored the EEOC to give CRST more information about the size of the 'class'". A-271. Nothing in the record suggests Wolle was averse to EEOC's proposal for identifying other individuals or that uncertainty about the number or identity of class members influenced CRST's decision to end conciliation. Finally, the district court erred in assuming that, once it dismissed EEOC's "pattern-or-practice" theory, EEOC's effort to obtain relief for each of the remaining 67 women required a different approach to conciliation. See A-266n.21 (no view whether conciliation efforts would have been sufficient to support a "pattern-or-practice" lawsuit). Whether denominated "pattern-or-practice," systemic, or "class"-wide discrimination, and whether filed under 42 U.S.C. § 2000e-5 (§ 706) or § 2000e-6 (§ 707), all EEOC litigation shares the same administrative prerequisites. See 42 U.S.C. § 2000e-6(c), (e) (specifying that EEOC pattern-or-practice actions would be "conducted in accordance with the procedures set forth in [§ 706]"). EEOC never identifies specific legal theories, such as "pattern-or-practice," in its cause determinations, and there is no statutory requirement that EEOC conciliate the legal theories it would use to prove its case in court. Conciliation requires only that EEOC notify a respondent of the nature of the violation and how it could be remedied, which it did here. The court erred in preventing EEOC from seeking relief for multiple victims of discrimination under these circumstances. The court's belief EEOC had to investigate, issue a cause finding, and conciliate each individual instance of CRST's failure to respond appropriately to a harassment complaint finds no support in the language of Title VII or any court decisions of which EEOC is aware. In fact, a number of courts have expressly held that EEOC need not identify all alleged victims of the discriminatory practice for its conciliation efforts to satisfy statutory requirements. See EEOC v. Rhone- Poulenc, 876 F.2d 16, 17 (3d Cir. 1989) (class allegations of age discrimination did not require "specific conciliation . . . as to each potential member of the class"),<24> accord EEOC v. Calif. Psychiatric Transitions, 644 F. Supp. 2d 1249, 1272-73 (E.D. Cal. 2009) (no legal authority requires EEOC, in conciliation, to specifically identify all women for whom it will seek relief in Title VII sexual harassment case); EEOC v. David Lerner Assocs., 2005 WL 2850080, *3 (D. Conn. Oct. 27, 2005) (same) (unpub.); Dinkins v. Charoen Pokphand USA, 133 F. Supp.2d 1237, 1245-46 (M.D. Ala. 2001) (EEOC need not conciliate each employee's individual Title VII claim because what matters is that EEOC gave respondent "notice that it was investigating possible discrimination against a class of women" which "led to an attempt to conciliate on behalf of an entire class"); EEOC v. Dial Corp., 156 F.Supp.2d 926, 938, 939 (N. D. Ill. 2001) (Dial identified no "relevant authority indicating that the EEOC violated its statutory 'notice' obligation in failing to identify every class member during the administrative process" nor is there any support for the contention that "because [the employer] was not informed of the identity of the other claimants or the facts supporting their claims at any stage of the administrative process, it was denied the opportunity to conciliate these claims"). The Fourth Circuit's decision in EEOC v. American National Bank, 652 F.2d 1176, 1185-86 (4th Cir. 1981), explains why conciliation can be sufficient without identifying all alleged victims. The district court in that case limited EEOC's race/hiring lawsuit to the bank branches located in the city EEOC discussed during conciliation, barred EEOC from seeking relief for persons not hired at the branches in a second city, and chastised EEOC for failing to identify any of the 51 claimants beyond the charging party until nearly the end of the discovery period. 1979 WL 25, *83 (E.D. Va. 1979) (unpub.). The Fourth Circuit reversed, implicitly excusing the post-suit identification of claimants, and reasoning that even though the bank branches in the second city had not been discussed during conciliation, the expanded allegations were not "'new discrimination'" as the district court thought. 652 F.2d at 1185. The court of appeals held that EEOC's investigation and attempted conciliation of practices at one set of bank branches gave the bank "adequate notice . . . of the practices under investigation and ample opportunity for conciliation concerning those practices." Id. at 1185. The court found "no possibility for prejudicial surprise of the sort that has properly been held to preclude [inclusion] of later added charges in other situations." Id. at 1186; see also EEOC v. Delight Wholesale, 973 F.2d 664, 669 (8th Cir. 1992) (claims properly before court where included in cause determination and EEOC provided opportunity to conciliate). District court decisions that discuss EEOC's need, during conciliation, to address any additional discriminatory practices beyond those alleged in the charge use such terms as "additional claims," "additional violations" and "additional allegations." See, e.g., A-262-63 (citing cases). Courts use these terms to refer to additional types of discrimination, not, as the district court ruled here, to additional victims of a single type of discrimination. E.g. EEOC v. Am. Home Prods., 165 F.Supp.2d 886, 914 (N.D. Iowa 2001) (post-termination retaliation differs from conciliated termination claim). Here, whether considering the 255 individuals for whom EEOC sought relief or the 67 the court concluded had triable issues, EEOC had only one claim, the one it attempted to conciliate-that CRST failed to comply with Title VII's mandate that it protect its employees from discrimination based on sex. The district court erred in concluding that EEOC's inability to investigate these 67 instances of harassment (some of which had not yet occurred) "deprived CRST of a meaningful opportunity to engage in conciliation." A-270. CRST was aware, when it ended conciliation, that it had recorded at least 105 harassment complaints during the time in question, including 31 from women the court concluded experienced triable harassment. CRST cannot contend it did not know at the time that EEOC would want relief for these women. If conciliation had not been aborted by CRST, EEOC's proposed method of identifying class members would have led to the same set of victims for whom EEOC sought relief at the end of discovery (minus those harassed after suit was filed). Thus, there was no "prejudicial surprise" to CRST, and no basis for the court's draconian dismissal of EEOC's enforcement action. This Court should therefore reverse the district court's decision and remand the case for trial. Even if EEOC's conciliation efforts could be seen as insufficient, the district court abused its discretion in dismissing the case rather than staying EEOC's lawsuit to permit "further efforts of the Commission to obtain voluntary compliance." See 42 U.S.C. § 2000e-5(f)(1). The court recognized dismissal as a "severe" remedy and acknowledged it would result in "dozens of potentially meritorious sexual harassment claims . . . never see[ing] the inside of a courtroom." A-272. The court expressly made no finding that EEOC's lawyers acted in bad faith, A-272n.25, and, thus, there is no justification for the harsh sanction of dismissal. See, e.g., EEOC v. Klingler, 636 F.2d 104, 107 (5th Cir. 1981) (dismissal "far too harsh a sanction"). Courts that have found conciliation inadequate have generally stayed the lawsuit while the parties undertook additional conciliation efforts. Id. The court here recognized this option, but expressly rejected it because, in its view, EEOC had "wholly abdicated its role in the administrative process." A-272n.24. Far from abdicating, EEOC engaged in genuine conciliation on the same claim on which it later filed suit and acted in good faith in the process. Under the circumstances, the district court abused its discretion by dismissing EEOC's suit and thus permitting rampant sexual harassment to go unremedied. B. The District Court Erred in Estopping EEOC from Seeking Relief for Three Women. The district court abused its discretion in estopping EEOC from seeking relief for Payne, Starke, and Timmons because of their actions in bankruptcy court. A-153. Judicial estoppel is an equitable, common law doctrine that prevents a party who has successfully assumed a factual position in one legal proceeding from thereafter assuming an inconsistent position in the same or any other legal proceeding. Stallings v. Hussman Corp., 447 F.3d 1041, 1046, 1047 (8th Cir. 2006). It may be properly applied in the bankruptcy context when: (1) the party's later position is "clearly inconsistent with its earlier position;" (2) the bankruptcy court has adopted the debtor's position and issued a no-asset discharge; and (3) the party asserting the allegedly inconsistent position "would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. at 1047-49 (citation omitted). Under this standard, the district court erred in barring EEOC from seeking relief for Payne, Starke, and Timmons based on actions they allegedly took, or did not take, in proceedings to which EEOC was not a party. EEOC's position in this litigation-that CRST violated Title VII with respect to these women-is not inconsistent with any position EEOC took in any prior legal proceedings. Payne and Timmons are not parties to the present lawsuit. Thus, they have not taken and cannot take any position in this litigation. Therefore, the element of a party's misconduct-i.e., an intentional misrepresentation designed to gain an advantage in court-is missing here. Without this critical element, any prior statements or omissions by Payne and Timmons in their bankruptcy petitions cannot bind EEOC in this subsequent litigation. Cf. EEOC v. Waffle House, 534 U.S. 279, 294 (2002) ("It goes without saying that a contract cannot bind a nonparty."). The district court's reliance on EEOC v. Dave's Detailing, 2008 WL 1968315, at *3 & n.3 (W.D. Ky. 2008) (unpub.), is misplaced. A-151-52. Those debtors affirmatively misstated on their bankruptcy forms that they were not a party to any "administrative proceedings," when they had actually filed charges that EEOC was still investigating when they filed their Chapter 7 bankruptcy petition. Although EEOC thinks Dave's Detailing wrongly decided, it is distinguishable because neither Payne nor Timmons made any such misstatement here, and Starke attempted to correct her omission by amending her bankruptcy petition to include her lawsuit. XIX-Apx.5275. To the extent EEOC's position that Payne, Starke, and Timmons may be entitled to monetary relief in this litigation is inconsistent with their statements in their respective bankruptcy petitions that they had no pending "claims" of any nature, EEOC does not merely stand in their shoes, and EEOC's litigation does not exist simply to seek relief on their behalf. Waffle House, 534 U.S. at 296-98. EEOC filed this litigation not for the personal benefit of any particular claimant, but for the broader public interest in enforcing Title VII and ensuring CRST maintains a workplace free from discrimination. Recognizing that EEOC's purpose is to adjudicate the public interest in deterring and redressing discrimination, not just to seek individual monetary relief, courts routinely decline to dismiss EEOC suits or claims under such circumstances. See, e.g., EEOC v. Tobacco Superstores, 2008 WL 2328330, at *8 (E.D. Ark. 2008)(unpub.); EEOC v. Digital Connections, 2006 WL 2792219, at *3 (M.D. Tenn. 2006)(unpub.); EEOC v. Apria Healthcare Group, 222 F.R.D. 608, 613 (E.D. Mo. 2004). Thus, the district court abused its discretion when it estopped EEOC from seeking relief for Payne, Timmons, and Starke. II. THE DISTRICT COURT MISAPPLIED BASIC TITLE VII PRINCIPLES FOR CLAIMS OF SEXUAL HARASSMENT IN THE WORKPLACE. A. The District Court Erred in Ruling 14 Women Did Not Experience Severe or Pervasive Harassment. Under the totality-of-circumstances, contextual analysis endorsed by the Supreme Court in Harris v. Forklift Sys., 510 U.S. 17, 23 (1993), and Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), the setting in which harassment occurs is necessarily a critical factor in deciding whether "a reasonable person in the plaintiff's position" would find the working conditions hostile or abusive. Oncale, 523 U.S. at 81-82. Thus, offensive conduct that occurs in a confined, isolated, or remote location, where the harasser and his victim are alone and in close proximity for extended periods-as was the case on CRST's trucks-might be actionable, even if similar conduct in a more public setting without constant exposure to the harasser, where the victim could more easily avoid harm or seek assistance, would not. See, e.g., Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (plaintiff's "physical proximity to the harasser, and the presence or absence of other people," are among "factors . . . relevant in assessing the magnitude of harassment"); Hathaway v. Runyon, 132 F.3d 1214, 1223 (8th Cir. 1997) (same). In such a situation, even a single episode of an unwelcome sexual advance is actionable. Moring v. Arkansas Dep't of Correction, 243 F.3d 452, 456 (8th Cir. 2001) (reversing summary judgment where plaintiff's supervisor once "appeared barely clothed at the plaintiff's [hotel room] door, . . . sat on her bed, . . . touched her thigh and attempted to kiss her," and refused to leave her room for several hours). This Court has long recognized that "'[o]nce there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.'" Eich v. Bd. of Regents, 350 F.3d 752, 761 (8th Cir. 2003)(citation omitted). Furthermore, "there is no bright line between sexual harassment and merely unpleasant conduct so a jury's decision must generally stand unless there is trial error." Hathaway, 132 F.3d at 1221. The district court, ruling on summary judgment, drew the line between sexual harassment and merely unpleasant conduct too far from the margin and invaded the province of the jury. Eschewing the fact-intensive, context-specific approach endorsed in Harris and Oncale, the court saw no "need [to] catalogue all of the sordid facts relating to each" of the women CRST sought to preclude from recovery on the ground that the conduct she endured was not sufficiently severe or pervasive to be actionable. A-218. Instead, the court briefly summarized the experiences of a couple of women whose harassment the court found sufficient to withstand summary judgment, and three women who did not, and then simply listed the names of 13 other women who also met that standard, and 25 who did not. A-218-25; A-231-33. The court's summary, "name-only" disposition deprived the litigants and this Court of any analysis to explain why, as a matter of law, the court believed the particular work environment each woman endured was not sufficiently hostile or abusive. Furthermore, the court improperly precluded 14 women from recovery whose allegations, when properly analyzed, fall within the scope of actionable workplace harassment: Dockery, Hindes, Holmes, Hughes, J.Jackson, Jones, Marzett, Mason, McBlair, O'Donnell, Payne, Pratt, Shepler, and Skaggs. To conduct the analysis mandated in Harris and Oncale, this Court must necessarily examine "all of the sordid facts" to decide if a reasonable jury could find the work environment each woman experienced at CRST was hostile or abusive. Doing so reveals that the conduct to which these women were subjected was at least as abusive, and their work environment at least as hostile, as that experienced by plaintiffs this Court has held stated viable Title VII harassment claims. For example, this Court has found actionable harassment where a plaintiff's supervisor continuously "fondled his genitals in front of her and used lewd and sexually inappropriate language," Breeding v. Arthur J. Gallagher, 164 F.3d 1151, 1159 (8th Cir. 1999), and where plaintiff's coworker "was 'always saying sexual innuendos'"; "would often brush against her intentionally" when both were working in a narrow area; and told two jokes with punch lines that "involved lewd gestures, in one instance touching a woman's breast, and in the other, thrusting his hips into a woman from behind," Howard v. Burns Bros., 149 F.3d 835, 838-41 (8th Cir. 1998). Under these authorities, the district court erred in rejecting EEOC's claims on behalf of Hindes (supra 28-29), Holmes (supra 30), Skaggs (supra 33), Marzett (supra 34-35), Mason (supra 36-37), Shepler (supra 39-41), Dockery (supra 41-43), Jackson (supra 43-45), and McBlair (supra 45-47), who were subjected, often at length, to crude, sexually graphic discussions and remarks, or exposed to masturbation, pornography, or sexually explicit audio or visual materials. This Court has also found actionable a claim where a plaintiff alleged her coworker verbally expressed sexual interest in her, hit her on the buttocks with a clipboard and a week later approached her from behind and squeezed her buttocks where "[a]fter she rebuffed his advances, [he] and his friend[/coworker] proceeded to laugh, snicker, and made suggestive noises at her for a period of eight months," which "frightened and intimidated [her]." Hathaway, 132 F.3d at 1221-23. The Supreme Court likewise has noted that physically threatening or humiliating treatment distinguishes actionable harassment from merely offensive utterance. Harris, 510 U.S. at 23. Like the plaintiff in Hathaway, Hindes (supra 28-29), Holmes (supra 30), Pratt (supra 31-33), Hughes (supra 33-34), Marzett (supra 34- 36), O'Donnell (supra 37-39), Dockery (supra 41-43), and Jackson (supra 43-45) suffered abusive treatment after rebuffing sexual advances or propositions, or reporting harassment. O'Donnell was the victim of a violent attack and sustained a physical injury (supra 38), while Holmes (supra 30), Jones (supra 30), Marzett (supra 34-35), Shepler (supra 39), Dockery (supra 41-43), Jackson (supra 43-44), and McBlair (supra 45-46) were frightened by threats they would be thrown off the truck or other explicit or implicit threats of violence. Such physical and emotional abuse meet the actionable threshold established in Harris. This Court has also found triable harassment claims where a plaintiff's supervisor made sexual advances and sexually inappropriate comments; winked and blew kisses at her daily; slapped her buttocks three times; and pulled on the badge attached to her belt at least twice a day. Brenneman v. Famous Dave's of America, 507 F.3d 1139, 1141-43 (8th Cir. 2007). Similarly, in Beard v. Flying J, 266 F.3d 792, 797-98 (8th Cir. 2001), the Court said that allegations that over a three-week period, plaintiff's supervisor "frequently brushed his body against her breasts, once rubbed a pair of cooking tongs against her breasts, once flicked a pen across her nipples," and once "pointed to his groin" and told her and a male employee "he would 'show them some experience,'" were sufficient to constitute actionable harassment. And in Rorie v. UPS, 151 F.3d 757, 761-62 (8th Cir. 1998), this Court considered plaintiff's allegations that her supervisor often told her she smelled good, patted her on the back, and brushed up against her, and she thought he was "constantly 'coming on' to her" and "always flirty" sufficient to state a claim. Under the logic of these cases, as well as Howard and Hathaway, Jones (supra 30-31), Dockery (supra 41), and Jackson (supra 43) stated actionable harassment because they endured similar uninvited physical contact. Likewise, Hindes (supra 29), Payne (supra 31), Skaggs (supra 33), Hughes (supra 33-34), Marzett (supra 34-35), O'Donnell (supra 37-38), Shepler (supra 39-40), and Jackson (supra 43-45) were sexually objectified in their workplace and endured persistent sexual propositions or advances, despite explicit rejection and repeated efforts to maintain a purely professional relationship. Male trainers subjected Hindes (supra 28-29), Pratt (supra 31-32), and Hughes (supra 33-34) to excessively controlling or stalker-like behavior. Allegations of gender-based denigration, ridicule, or verbal abuse can also support a hostile environment claim. The Supreme Court refused to affirm summary judgment where Harris alleged her boss "often insulted her because of her gender and often made her the target of unwanted sexual innuendos." Harris, 510 U.S. at 19. This Court, too, has held that a "jury could reasonably find" a supervisor's persistent "derogatory comments" that, while "not sexually explicit," often included "gender-conscious terms" and led to plaintiff's depression, "w[ere] sufficiently severe or pervasive to meet the Harris standard." Smith v. St. Louis Univ., 109 F.3d 1261, 1265 (8th Cir. 1997). Here, Hindes (supra 28-29), Jones (supra 30), Pratt (supra 31-33), Hughes (supra 33-34), O'Donnell (supra 37-38), Dockery (supra 41-43), and Jackson (supra 43-44), were subjected to comments like-or worse than-those inflicted on the plaintiffs in Harris and Smith. This Court has held that inadequate access to "private, sanitary shower and restroom facilities" is both a materially adverse condition of employment and relevant to demonstrating a hostile work environment. See Wedow v. City of Kansas City, 442 F.3d 661, 671-72 (8th Cir. 2006); Kline v. City of Kansas City, 175 F.3d 660, 668-69 (8th Cir. 1999) ("deficient bathroom facilities for women (there was no shower), and the lack of privacy in the bathrooms and bunk area . . . was a part of their work environment and therefore should have been considered in evaluating their hostile work environment claims"). The logic of Wedow and Kline dictates that EEOC's claims for Hindes (supra 28-29), O'Donnell (supra 38), Dockery (supra 42), and McBlair (supra 45), should be tried to a jury, because they were denied access to restrooms, not permitted to shower for extended periods, or required to urinate in public places, such as parking lots. In assessing the severity of harassment, the Supreme Court has stated that "[a] discriminatorily abusive work environment . . . can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers." Harris, 510 U.S. at 22. The harassment suffered by Hindes (supra 28-29), Holmes (supra 30), Pratt (supra 32), and McBlair (supra 45-47) directly interfered with each woman's training or her ability to do her job; Hughes (supra 34) and Dockery (supra 43) quit once they got off the truck with their harassers; and Jackson testified that the harassment she encountered at CRST has discouraged her from engaging in male-dominated activities or work (supra 45). Finally, while "harassing conduct" need not cause "concrete psychological harm" to be actionable, the emotional impact of harassment on the victim is a critical factor to determine if "the environment would reasonably be perceived, and is perceived, as hostile or abusive." Harris, 510 U.S. at 22; see also Hathaway, 132 F.3d at 1222 (verdict for plaintiff supported by evidence she was "frightened and intimidated" by two coworkers; "feared" one of them "would fondle her again," and "was terrified to pass within grabbing range of either"); Smith, 109 F.3d at 1264-65 (that plaintiff "suffered depression" supports jury finding supervisor's derogatory comments "sufficiently severe or pervasive"). Most of these 14 women described the emotional impact of the harassment they suffered: Dockery felt "very sick, disgusted," and unsafe; Holmes was "pretty much an emotional wreck," "worn out and exhausted"; Jackson was frightened "the whole time" she drove with her trainer, had trouble sleeping, and lost weight; Mason was unable to sleep, "scared for my life," "a nervous wreck and crying and worried," felt "completely exhausted" and "miserable," and suffered nightmares; McBlair felt intimidated, "very apprehensive," often cried at night, and became a "nervous wreck" who "could not stand anybody to be close to me"; Payne was anxious and slept less soundly out of fear she would be molested; Pratt felt like "a prisoner," "petrified" and "scared to death"; and Shepler felt afraid all the time, "offended and appalled and disgusted." Under the controlling standards enunciated by the Supreme Court and this Court, the district court's unexplained dismissal of EEOC's claim seeking relief for these 14 women must be reversed. B. The District Court Erred in Ruling That CRST Is Not Liable for the Harassment of 39 Women Who Complained "Too Late"; CRST's Knowledge of Harassment Complaints Obligated it to take Additional Preventive Steps. An employer is liable for co-worker harassment if it "knew or should have known of the harassment and failed to implement prompt and appropriate corrective action."<25> Varner v. Nat'l Super Markets, 94 F.3d 1209, 1213 (8th Cir. 1996). The district court held that CRST had neither actual nor constructive notice of the harassment experienced by a number of women in EEOC's lawsuit. A-204- 05; A-231-32. In fact, the majority of women in this case did give actual notice to CRST by calling their dispatchers as required by the company's policy. See supra 47-52. The court held this notice inadequate in some instances because it came after the fact, reasoning there was nothing CRST could do about the harassment then. A-204-06. The court erred. This Court recently held that an employer who had no actual knowledge of particular incidents of harassment by on-site supervisors in remote locations-like here, outside the direct view of management-could be found to have constructive knowledge based on nearly one hundred similar harassment complaints it received during the same time period, Sandoval v. Am. Bldg. Maintenance Indus., 578 F.3d 787, 801-03 (8th Cir. 2009), even though the harassment involved "different victims and different employees at [approximately 400] different locations," id. at 804 (Gruender, J., dissenting). This Court held that the district court erred in "disregarding evidence of widespread sexual harassment" because such evidence was "highly relevant" to prove the employer had constructive notice. Id. at 802- 03. CRST had comparable notice of the harassment of 39 women for whom EEOC seeks relief here. Under the reasoning in Sandoval, the district court erred in barring EEOC from seeking relief for them. <26> Sandoval teaches that once CRST became aware of the treatment of its female drivers, it was obligated to take reasonable steps to prevent future harassment. This Court has endorsed EEOC regulations in stressing that "'[p]revention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions.'" Davis v. Tri-State Mack Distrib., 981 F.2d 340, 344 (8th Cir. 1992) (quoting 29 C.F.R. § 1604.11(f) (emphasis added)). Indeed, "to be adequate, remedial actions must be designed not only to prevent future conduct by the harasser, but also by other potential harassers." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (emphasis added); see also Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995) (effective remedial action must end the current harassment and deter future harassment-by the "same offender or others") (emphasis added). An employer must take "reasonable steps to prevent harassment once informed of a reasonable probability that it will occur." Erickson v. Wisconsin Dep't of Corrections, 469 F.3d 600, 606 (7th Cir. 2006). This Court assesses the adequacy of an employer's response to harassment by considering its "employee training sessions, disciplinary action taken against the harasser(s), reprimands in personnel files, and terminations, and whether or not the measures ended the harassment." Stuart v. General Motors, 217 F.3d 621, 633 (8th Cir. 2000). Further, the adequacy of an employer's response and the reasonableness of its risk assessment must be measured against "the employer's knowledge of the specific context of its own working environment." Erickson, 469 F.3d at 606. "[W]hat is reasonable depends on the gravity of the harassment. . . . [and] an employer is required to take more care . . . to protect its female employees from serious sexual harassment than to protect them from trivial harassment." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 (7th Cir. 1995). A jury could find that in two crucial respects, CRST's efforts flunk these tests of reasonableness: CRST failed to impose any meaningful discipline on drivers who harassed women, and CRST failed to inform its drivers that specific behaviors about which women complained repeatedly constitute sexual harassment that could lead to discipline. See Stuart, 17 F.3d at 633 (consider discipline and its effectiveness in ending harassment). The record demonstrates that even with respect to complaints CRST investigated, CRST routinely did nothing more than issue a verbal warning and sometimes bar a harasser from driving with women for six months. The six-month ban cannot logically be viewed as discipline because driving with a female trainee or co-driver cannot properly be considered a bonus or benefit of which a male driver might be deprived for misbehavior. Often CRST took no action whatsoever against the harasser. See supra 23-26. Such "[i]naction constitutes a ratification of past harassment, even if such harassment independently ceases." McGinest, 360 F.3d at 1120. CRST's inadequate discipline undermined its official policy against sexual harassment and, in effect, sent a message to other male drivers that harassment is tolerated at CRST. CRST's female drivers were isolated and vulnerable. That isolation created the potential for severe harassment, including sexual assault.<27> The district court appeared to believe this isolation justified CRST's tepid response to complaints of harassment, on the theory that CRST could not have known what "was happening in the isolated cabs" of its trucks. A-206. Under basic tort law principles applied in harassment cases, Sandoval, 578 F.3d at 801, "[t]he greater the potential harm to the employee, the more vigilant the employer needs to be." Erickson, 469 F.3d at 606. The court refused to find fault with CRST's repeated decisions not to impose any meaningful sanctions on drivers who sexually harassed women, noting that the "unique" nature of CRST's workplace-with two workers on isolated trucks- meant there were almost never any witnesses. The court held that an employer need not credit uncorroborated statements and, therefore, had no obligation to impose more significant penalties on alleged harassers. A-107 (citing Adams v. O'Reilly Automotive, 538 F.3d 926, 930 (8th Cir. 2008)). The court misapplied Eighth Circuit law on this point. In Hathaway, 132 F.3d at 1224, this Court held "[i]t is not a remedy for the employer to do nothing simply because the coworker denies that the harassment occurred, . . . and an employer may take remedial action even where a complaint is uncorroborated." The isolated nature of the trucks does not justify CRST's unwillingness to take more substantial remedial and preventive measures, but served as a red flag necessitating more, not less, vigilance by CRST on behalf of female employees. Intertwined with CRST's failure to impose meaningful discipline was its failure to give drivers specific guidance about conduct considered sexual harassment. CRST was on notice that the admonitions the company included in its anti-harassment training were not sufficient to prevent harassment. See supra 8- 16, 47-53. Knowledge of the "specific context of its own working environment," Erickson, 469 F.3d at 606, obligated the company to take more specific and pro- active steps. According to the court, remedial measures such as annual training would be "difficult" because CRST owns more than 1,000 tractors and its drivers are all on different schedules and "CRST's 'workplaces' are widely dispersed." A-85. There is record evidence, however, from which a jury could find that such training would have been possible. See supra 19 (discussing CRST's frequent meetings with drivers). In any event, the fact that some actions might be difficult cannot excuse CRST from doing so little to stop harassment. See Crist v. Focus Homes, 122 F.3d 1107, 1111 (8th Cir. 1997) (employer "clearly controlled the [work] environment" and "had the ability to alter those conditions to a substantial degree"). There were many steps CRST could have implemented fairly easily. At a minimum, CRST's actual knowledge of recurrent harassment (i.e., what it knew at some point during 2005, or earlier) obligated it to attempt to prevent future harassment (i.e., harassment that occurred later in 2005 and thereafter) by: * providing drivers with specific guidance about what kinds of conduct are prohibited before assigning them to drive with a female trainee or co-driver, supra 19 (no on-going training or effort to advise drivers of specific conduct that violates its anti-harassment policy); * monitoring and assessing dispatchers to ensure they assist all women who ask to be removed from a truck and forward all complaints to both HR and the coordinator of the lead driver program, supra 20-22 (dispatchers' failures to respond effectively and/or to report complaints to HR combined with lack of monitoring or discipline of dispatchers); * Investigating and making determinations in harassment complaints, supra 23-24 (failure to make determinations about complaints); and * imposing appropriate discipline when a complaint is found to have merit, supra 24-26 (lack of meaningful discipline). Instead, CRST made no substantive changes to its anti-harassment practices. Supra 27-28. The extent of CRST's blindness to the harassment in its workplace is reflected in the February 2008 exchange between Wellman and CRST's vice- president of fleet operations. After complaining of harassment by three successive trainers, Wellman told Schommer that CRST needed to let its male drivers know CRST would not simply take their word every time female drivers report sexual harassment, as each man had told Wellman. Schommer responded: "I don't believe any of our trainers would act in such a way." XVIII-Apx.4916;4919-20. A jury could find such denials from a high-ranking official, combined with CRST's failure to improve its anti-harassment practices, demonstrate CRST had "'turn[ed] a blind eye to overt signs of harassment.'" Sandoval, 578 F.3d at 802 (citation omitted). The district court erred in finding CRST's responses to complaints of sexual harassment adequate as a matter of law where CRST did little more than separate a woman from her harasser and sometimes impose a verbal warning/"no females" designation. Knowing that harassment was continuing obligated CRST to implement more effective measures to reduce the number of future incidents of harassment. C. The district court erred in granting summary judgment based on the adequacy of CRST's response in four instances. The district court erred in barring EEOC from seeking relief for four women-Maybi Fernandes-Fabre, Ginger Laudermilk, Faith Shadden, and Diana Vance-on the ground CRST responded appropriately to their complaints. A-206. Each woman reported her harassment to CRST as it occurred or immediately thereafter. Although CRST separated them from their harassers, CRST otherwise failed to take appropriate remedial and preventive measures. See Davis, 981 F.2d at 344 (prevention the best remedy). Instead of remedying the harassment, CRST's inadequate responses served implicitly to ratify the harassment. See McGinest, 360 F.3d at 1120-21 (inaction constitutes ratification; effective remedy must deter other potential harassers). For example, Laudermilk's trainer threw her things off the truck as she was attempting to contact her dispatcher to complain about his conduct. Thus, Laudermilk was off the truck by the time CRST knew there was a problem, and CRST paid for her to stay in a hotel until she could find another trainer. This did not constitute an adequate response, because the dispatcher to whom she reported failed to pass her complaint along to HR, as required by CRST's policy, and no action was ever taken against the trainer for his harassing conduct. Supra 54. The disciplinary action against Fernandes, Shadden, and Vance's drivers was similarly insufficient to send the message to CRST's workforce that sexual harassment would not be tolerated. See supra 53-55. CRST makes sure its drivers know that certain violations, such as no u-turns and no drinking while on an assignment, are dischargeable offenses, and when drivers violate these rules, CRST imposes firm and consistent discipline. See, e.g., VIII-Apx.1970;R.169-1pp.1286-87(driver termination records). Indeed, CRST apparently terminates male drivers who threaten CRST office staff, see supra 55, or assault another male driver. See Lockhart v. CRST, 2010 WL 1239526, at *2-3 (8th Cir. Apr. 1, 2010)(CRST submitted records of "a number of . . . employees who were terminated for fighting" and Lockhart pointed to several employees whom CRST terminated after they assaulted a co-driver)(unpub.). CRST's failure to impose meaningful discipline on drivers who sexually harass a female driver, and its failure even to inform its drivers that specific harassing behaviors will not be tolerated, contrasts starkly with its handling of other forms of misconduct. CRST's tepid response to harassment complaints created a climate of tolerance that permitted harassment to recur. The district court erred in ruling that EEOC cannot seek full relief for these four women. D. The District Court Erred in Barring Documentary Evidence Concerning 99 Women for whom EEOC May Not Seek Relief. The district court abused its discretion when it extended the original limited discovery sanction for EEOC's failure to produce 99 women for deposition, and barred EEOC from offering any evidence about them. A-112-13; A-41-44. The excluded evidence includes CRST's records documenting sexual harassment complaints the company received, including relevant Qualcomm communications between a female driver and her dispatcher and CRST's internal investigations of, and responses to, those complaints. A-41-43. EEOC's desire to use this evidence is not, as the district court believed, an attempted "end run" around the court's order barring testimony from, or relief to, these women. A-112. Rather, EEOC seeks to use this evidence to demonstrate CRST's awareness of the number, frequency, and types of sexual harassment complaints from female drivers and the steps CRST undertook when it received such complaints. A-41-42. This information is relevant to CRST's liability for failing to remedy and prevent harassment of which it knew or should have known. See Sandoval, 578 F.3d at 802-03; supra 79-82 & n.26. The district court's "harsh penalty" of excluding this relevant evidence, a penalty this Court has said should be used "sparingly," see Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008), conflicts directly with this Court's well-established precedent that these records are relevant in a sexual harassment case, see Sandoval, 578 F.3d at 802. Indeed, this Court has noted that such exclusions of evidence are particularly damaging in employment discrimination cases. See Hawkins v. Hennepin Technical Ctr., 900 F.2d 153, 155- 56 (8th Cir. 1990) (reversing blanket evidentiary exclusion of background evidence of harassment of others). It has also cautioned that a district court's discretion "narrows as the severity of the sanction . . . increases." Wegener, 527 F.3d at 692. The district court's severe sanction in this case constitutes an abuse of its discretion, and this Court should reverse its ruling when it remands the case. E. The District Court Erred in Ruling Lead Drivers Are Not Supervisors For Liability Purposes. Employers are vicariously liable "for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee," unless the employer demonstrates an affirmative defense. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The district court held Faragher inapplicable because, it concluded, "lead drivers" are co-workers of trainees, rather than their supervisors, because they lack "final authority to hire, fire, promote, or reassign trainees." A-104-05 (citing Merritt v. Albermarle Corp., 496 F.3d 880, 883-84 (8th Cir. 2007)(state law claim). In so holding, the court erred. Although Faragher did not directly address who is a "supervisor," Faragher's reasoning and factual context demonstrate why CRST's trainers should be considered "supervisors." The Court held Boca Raton vicariously liable for the hostile work environment created by Faragher's two supervisors (even though one only made daily assignments and supervised lifeguards' work and fitness training) based on their "virtually unchecked authority" and direct control of Faragher's "day-to-day activities" which was facilitated by their "complete[] isolat[ion] from the City's higher management." Faragher, 524 U.S. at 781, 808 (citation omitted). As in Faragher, CRST gives trainers virtually unchecked authority and control over all aspects of a trainee's daily activities, as well as authority to recommend whether a trainee is ready for full-driver status, and their recommendations are virtually always followed.<28> See supra 5-6. Trainees are also similar to the Faragher lifeguards because trainees are physically isolated from CRST management during their over-the-road training, which has the effect of investing on-site authority in trainers. The evidence that trainers were able to use the authority CRST gave them to facilitate the harassment of their female trainees is borne out by the numbers in this case: 75 of the 107 female drivers for whom EEOC seeks relief were trainees sexually harassed by their trainers. Even if, as the court assumed, achieving full-driver status is not viewed as a promotion for a trainee, this Court has never said that its list of "tangible employment actions" is exhaustive, and the facts in this case demonstrate why the Merritt list should not be considered exclusive. CRST gives trainers an unusual level of control, and that control, along with the inherently isolated nature of the over-the-road workplace, provides more than ample basis to find that trainers are "supervisors" under Faragher. See also Whitten v. Fred's, 601 F.3d 231, 244 (4th Cir. 2010) ("The determinant is whether as a practical matter [the harasser's] employment relation to the victim was such as to constitute a continuing threat to her employment conditions that made her vulnerable to and defenseless against the particular conduct in ways that comparable conduct by a mere coworker would not."). At a minimum, the authority CRST vests in its trainers creates a basis for liability under the apparent authority doctrine. See Ellerth, 524 U.S. at 759 ("If . . . there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one."). III. THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEYS' FEES. Even if this Court does not reverse the district court's ruling on the adequacy of conciliation, see supra 59-67, the district court erred in awarding attorneys' fees. "[A] prevailing defendant is entitled to attorney's fees only in very narrow circumstances." Marquart v. Lodge 837, 26 F.3d 842, 848 (8th Cir. 1994) (quotations omitted). A district court may award attorney's fees to a prevailing defendant only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).<29> In Christiansburg itself, the Court affirmed denial of a fee award sought on the basis that EEOC had not met the procedural prerequisites to suit, where the district court concluded EEOC's statutory interpretation was not frivolous. See id. at 414 n.3, 424. Here, EEOC's interpretation of its statutory conciliation requirements was not unreasonable, much less frivolous. The district court's merits determination that EEOC must identify each individual of a class before seeking relief on their behalf in court is a novel ruling, at odds with every other circuit court decision on the subject. Supra 63-67. If this Court were to affirm that ruling, it would necessarily be holding that EEOC's position-that it need not identify each individual in the conciliation process-is wrong, but not necessarily that it is "unreasonable," as the district court held. Because EEOC's actions were consistent with the prevailing legal interpretation of Title VII's conciliation requirement, EEOC acted reasonably, and the fee award was an abuse of discretion. The proper Christiansburg focus on the reasonableness of EEOC's beliefs about its conciliation efforts is illustrated in EEOC v. Bruno's Restaurant, 13 F.3d 285, 289 (9th Cir. 1993). There, the district court ruled that EEOC had failed to conciliate its claim that the employer discriminated against other pregnant waitresses in addition to the pregnant charge-filer, and awarded fees on that basis. In reversing, the Ninth Circuit stressed that the "mere fact that the EEOC may have failed to conciliate is not enough to find that bringing suit was unreasonable," for the issue is "whether [EEOC's] belief that it had [conciliated properly] was unreasonable." Id. at 288. The court held that where EEOC investigated, made a cause determination that indicated EEOC's belief that discrimination extended to other employees on the basis of pregnancy, and attempted conciliation, it "could reasonably have believed that its efforts to conciliate were sufficient." Id. at 289. Moreover, the court added, "'in a class action suit, [t]he EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant.'" Id. (citation omitted). The district court here suggested that different rules govern conciliation of claims for relief for multiple victims depending on whether or not EEOC later alleges a "pattern-or-practice" theory. A-266n.21. As argued above, the district court's reasoning on the conciliation requirement was flawed, and its ruling is inconsistent with cases in which EEOC never invoked the pattern-or-practice theory. See, e.g., David Lerner, 2005 WL 2850080 at *1. Furthermore, there is no substantive difference between a "pattern-or-practice claim" and a claim seeking relief for a number of aggrieved individuals that affects any pre-suit conciliation requirements. See 42 U.S.C. § 2000e-6(c),(e); General Telephone, 446 U.S. at 324, 329 (EEOC's § 706 authority to sue for multiple victims identical to § 707 pattern-or-practice authority). The Supreme Court's rationale for invoking a high standard for imposing fees on a losing Title VII plaintiff is grounded in the role plaintiffs play in Title VII enforcement. Christiansburg, 434 U.S. at 418. See also Chester v. St. Louis Housing Auth., 873 F.2d 207, 209 (8th Cir. 1989) ("strict nature of the Christiansburg standard is premised on the need to avoid undercutting Congress'[s] policy of promoting vigorous prosecution of civil rights violations under Title VII") (quotation omitted). That the plaintiff here is EEOC, and not a private party, does not alter the standard, for the Christiansburg Court held that EEOC is entitled to the same high standard as a private party before incurring fees under Title VII. 434 U.S. at 422 n.20. In sum, EEOC reasonably believed it was on solid legal footing when it filed this lawsuit after investigating Starke's harassment charge, determining that other women had also been affected by harassment at CRST, and seeking to conciliate on behalf of that class of women. After CRST chose to end conciliation-for reasons unrelated to EEOC's uncertainty about the identity of all the affected women-EEOC attempted to remedy the harassment problem at CRST by bringing suit seeking relief for Starke and other women who had been sexually harassed by trainers or co-drivers. EEOC's action in filing this public law enforcement action was, at a minimum, not unreasonable or without foundation. The fee award, therefore, should be reversed. CONCLUSION EEOC urges this Court to reverse the court's grant of summary judgment, dismissal, and award of attorneys' fees and costs, and to remand the matter for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ______________________________ SUSAN R. OXFORD DORI K. BERNSTEIN JENNIFER S. GOLDSTEIN Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 Tel. (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov Dated: May 28, 2010 CERTIFICATE OF COMPLIANCE This corrected brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and this Court's order permitting the EEOC to file an over- length brief of 21,000 words because the brief contains 20,986 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Susan R. Oxford Attorney U.S. EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: August 11, 2010 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on May 28, 2010, I filed with the Clerk of the Court an original and nine copies of the EEOC's opening brief plus a digital version of the brief in pdf format; ten copies of the Addendum; and three copies of the Appellant's Appendix, by UPS ground delivery. I further certify that on the same date, I served two copies of the EEOC's opening brief and Addendum and one copy of the Appellant's Appendix by UPS ground delivery to counsel of record for CRST and the Plaintiff-Intervenors. I hereby certify that on August 11, 2010, I filed with the Clerk of the Court an original and nine copies of this corrected opening brief plus a digital version of this corrected brief in pdf format, and served two copies of the EEOC's corrected opening brief by UPS next-day delivery on the following counsel of record: Counsel for Plaintiff- Intervenors/Appellants: Matthew James Reilly Eells & Tronvold Law Offices, PLC 1921 51st St. NE Cedar Rapids, IA 52402 Counsel for Defendant/Appellee: James T. Malysiak Jenner & Block 353 N. Clark St. Chicago, IL 60654 DATED: August 11, 2010 Susan R. Oxford Attorney U.S. EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 *********************************************************************** <> <1> In this appeal, EEOC asks this Court to review the district court's rulings concerning 107 women. Where these women are discussed in the Statement of Facts, each name appears in bold type. The issue(s) on which EEOC seeks review for each woman are denoted in this index by superscript letters: a-adequacy of conciliation; b-judicial estoppel; c-severity of harassment; d-basis for CRST's liability (notice/inadequate response); e-liability only for inadequate post-notice response by CRST. Two superscript letters indicate appeal on both issues. <2> A-[#] refers to the page number in the Addendum. <3> [Volume#]-Apx.[page#] refers to material in EEOC's Appendix. "R.[#]p.[#]" refers to the district court docket entry and page number. <4> In this appeal, EEOC asks this Court to review the district court's rulings concerning 107 women, each of whose name appears in bold type where mentioned in the Statement of Facts. <5> Barnes became HR Director in March 2005 and was responsible for enforcing CRST's anti-harassment policy. XIX-Apx.5008;5019. Only he and Lisa Laveck Oetken investigated harassment complaints. XIX-Apx.5008. <6> Ayers(R.169-1p.899); Beal(R.169-1p.902;904); Blauvelt(IX-Apx.2473-74); Blevins(R.169-1p.905-07); K.Carney(X-Apx.2598-99); Cravalho(R.169-1p.962); DeJohnette(R.169-1p.973); Edwards(XI-Apx.2884-2902); Fregans(R.169- 1p.1023); Granofsky-Fletcher(XI-Apx.3042-48); Griffin(XII-Apx.3228-35); Hasbell(XII-Apx.3252-57); High(XII-Apx.3270-72); Hindes(XII-Apx.3289-92); T.Jackson(XIII-Apx.3411-15); Keenum(R.169-1p.1076-77); Merritt(XIII- Apx.3614); Moffett(XIV-Apx.3656;3668); Payne(XIV-Apx.3797;3800-01;3809- 10); Peeples(XIV-Apx.3823;3863); Scott(XV-Apx.4137-38;4140); Semrow(R.169-1p.1126); Shank(V-Apx.1406-07); Sindeldecker(R.169-1p.1134- 35); Skaggs(XVI-Apx.4470-71); Starke(XVII-Apx.4541;4551-58); Strong(R.169- 1p.1142-45); Susson(XVII-Apx.4593-95); Toppin(XVII-Apx.4675-76); Vargas(R.169-1p.1169); Villarreal(XVII-Apx.4772-77); Wallace(XVIII- Apx.4827-32); Walton(R.169-1p.1174-77); Williams(R.169-1p.1188-89). <7> Ayers(R.169-1p.899); K.Carney(X-Apx.2602-03); Cravalho(R.169-1p.962); Edwards(XI-Apx.2884-85;2891-92); Fregans(R.169-1p.1023-25); Griffin(XII- Apx.3228-35); Hasbell(XII-Apx.3254-57); High(XII-Apx.3271-72); Hutton(XIII- Apx.3371); T.Jackson(XIII-Apx.3414-21); Peeples(XIV-Apx.3863); Scott(XV- Apx.4134-42); Semrow(R.169-1p.1126); Starke(XVII-Apx.4541-42;4551-58); Strong(R.169-1p.1145-46); Susson(XVII-Apx.4594-96); Toppin(XVII-Apx.4675- 80); Villareal(XVII-Apx.4773); Wallace(XVIII-Apx.4827-30); Walton(R.169- 1p.1174-77); Williams(R.169-1p.1188-89). <8> See Halley(XII-Apx.3246-47; R.244-11p.2); Leach(XIII-Apx.3466-71); Moffett(XIV-Apx.3657-59;3668); Noernberg(XIV-Apx.3704); Ross(XV- Apx.4078-81); Taylor(XVII-Apx.4617); Thiel(VIII-Apx.2042). <9> Anthony(R.169-1p.897); Carrigan(R.169-1p.928); Desonier(XI-Apx.2796;2804- 05); Essig(VIII-Apx.2013); Jones(XIII-Apx.3433-35); Merritt(XIII-Apx.3614- 15); Perhealth(XIV-Apx.3884-86); Pile(XV-Apx.3938-40); Reed(R.169-1p.1106); Thornborrow(R.169-1p.1158). <10> Cravalho(R.169-1p.962); Desonier(XI-Apx.2795-96); Halley(R.244-11pp.2;8); High(XII-Apx.3271-72); Hindes(XII-Apx.3285); T.Jackson(XIII- Apx.3417;3420-21); Jones(XIII-Apx.3435); Lesmeister(XIII-Apx.3479); Noernberg(XIV-Apx.3700); Scott(R.169-1p.1125); Timmons(XVII-Apx.4664- 66;4672); Toppin(R.244-29pp.6;8;13; XVII-Apx.4677). <11> Halley(R.244-11p.2); High(XII-Apx.3271-72); Lesmeister(XIII-Apx.3479); Pile(XV-Apx.3939-40). <12> Blevins(R.169-1pp.905;907-08); Essig(VIII-Apx.2013); Gates(R.169- 1pp.1062;1066); Halley(R.244-11p.2); Holmes(XII-Apx.3305;3307-08); Mathwig(R.169-1p.1090); Pile(XV-Apx.3933;3935;3939-40); Sargent(R.169- 1p.1116); Skaggs(XVI-Apx.4468-71); Villareal(XVII-Apx.4778-79). <13> Conner(X-Apx.2697-2700;2703;2706); Hindes(XII-Apx.3280-81); Pratt(XV- Apx.4010-14); Reed(R.169-1p.1106); Sargent(R.169-1p.1116); Susson(XVII- Apx.4591;4595-96); Vargas(R.169-1p.1169). <14> Anthony(R.169-1p.897); Blauvelt(IX-Apx.2470); Carrigan(R.169-1p.929); Conner(X-Apx.2698;2703;2706); Caravlho(R.169-1p.962); Edwards(XI- Apx.2891-92;2900); Griffin(XII-Apx.3232-34); Hindes(XII-Apx.3284-86); Jones(XIII-Apx.3434-36); Montoya(R.244-17p.4); Peeples(XIV- Apx.3823;3843;3857-59); Pile(XV-Apx.3933-34;3939); Pratt(XV-Apx.4010-13); Reed(R.169-1p.1106); Scharlach(R.169-1p.1119); Sindeldecker(R.169-1p.1134- 36); Starke(XVII-Apx.4533;4536;4538); Susson(XVII-Apx.4589;4595-96;4599); Timmons(XVII-Apx.4664;4670); Vargas(R.169-1p.1169). <15> Brooks(R.169-1pp.913-14); Griffin(XII-Apx.3230;3234-35); Hutton(XIII- Apx.3374-75); Reed(R.169-1p.1107); Ross(XV-Apx.4082); Scharlach(R.169- 1p.1119); Sindeldecker(R.169-1p.1134); Starke(XVII-Apx.4537-39); Susson(XVII-Apx.4589;4596-99); C.Taylor(XVII-Apx.4617;4620); Thiel(VIII- Apx.2042); Villareal(XVII-Apx.4776-80). <16> Blauvelt(IX-Apx.2474); K.Carney(X-Apx.2602-03); High(XII-Apx.3270-72); Hindes(XII-Apx.3285); T.Jackson(XIII-Apx.3415-18); Jones(XIII-Apx.3435- 36;3439); Moffett(XIV-Apx.3666); Noernberg(XIV-Apx.3704-06;3708-09); Starke(XVII-Apx.4539); Wallace(XVIII-Apx.4832). <17> The PWE in the Addendum has been redacted to conform to the district court's Amended Protective Order, I-Apx.43-45. <18> Someone from HR later told Skaggs "they had gotten a complaint [about her trainer] before." XVI-Apx.4468. <19> E.g. IX-Apx.2345;X-Apx.2638;XIII-Apx.3495-96;XVIII-Apx.4987-89. <20> Oetken said another form of discipline is removal of lead driver certification. III-Apx.878-79. The PWE also does not reflect the imposition of this form of discipline, and Barnes was able to identify only one person, a woman, who had been suspended from the lead driver program because of a sexual harassment complaint. XIX-Apx.5015. <21> These numbers exclude women who complained to dispatch or some other CRST official, but whose complaint went unrecorded. EEOC was unaware of most of these complaints until discovery in this lawsuit, as CRST did not disclose them during EEOC's investigation, and CRST declined to join in a process to identify such additional claimants during conciliation in August 2007. <22> The court excluded ten of these 14 women for lack of notice, as well. They are denoted here with an asterisk. <23> In the case of eight women, infra 80n.26, the court barred relief for the harassment of which they complained, but permitted EEOC to seek relief for the post-notice remedy CRST provided, because CRST's efforts left them worse off economically. A-207-10. <24> The ADEA contains conciliation requirements analogous to Title VII's. See 29 U.S.C. § 626(b). <25> As explained infra 90-92, EEOC contends that lead drivers were the supervisors of trainees and, consequently, that a different liability standard applies. <26> EEOC seeks reversal of the court's ruling that EEOC may not seek relief for the following 39 women on the ground they provided inadequate notice to CRST: (1) 20 women for whom this was the sole ground: Antoinette Baldwin; Bonnie Batyik, Mary Beaton, Bethany Broeker, Kim Chisholm, Catherine Coronado; Samantha Cunningham, Denise Desonier, Catherine Fletcher, Verona McIver, Bonnie Moesch, Remcey Peeples, Tammi Pile, Sharon Pinchem, Danette Quintanilla, Kathleen Seymour, Mary (Emily) Smith, Jennifer Susson, Rachel Tucker, and Betsy Ybarra, A-196-97(Peeples); A-204-06; A-231; (2) 10 women excluded based both on "lack of notice" and "not severe or pervasive:" Dorothy Dockery, Debra Hindes, Tracy Hughes, January Jackson, Patricia Marzett, Virginia Mason, Lucinda McBlair, Sherry O'Donnell, Peggy Pratt, Jonne Shepler, A- 221(J.Jackson); A-231-32(all others); (3) Robbin Timmons, as an alternate ground, A-230n.4; and (4) eight women whom the court ruled could seek relief limited to the effects of CRST's remedial efforts, which left them worse off: Pamela Barlow, Peggy Blake, Donna Dickson, Nicole Edwards, Zelestine Grant, Martha Griffin, Carole Pettit, and Rhonda Wellman, A-207-10. <27> The difficulties new drivers had in communicating with their dispatchers exacerbated the problem. See supra 20. <28> It is immaterial that CRST may, on occasion, not follow a trainer's recommendation. As the Supreme Court recognized, a supervisor's decision "may be subject to review by higher level supervisors," without negating his supervisor status. See Ellerth v. Burlington Indus., 524 U.S. 742, 762 (1998). <29> EEOC is aware of only two cases where courts of appeals have affirmed fee awards based on putative inadequacies of conciliation: EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) (no cause finding; conciliation never initiated), and EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) (EEOC suit filed before respondent had opportunity to present conciliation offer). This case bears no resemblance to those.