IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,
CRST EXPEDITED, INC.,
On Appeal from the United States District Court
for the Northern District of Iowa, No. 1:15-cv-00117-LTS
Hon. Leonard T. Strand, Chief Judge
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS-APPELLANTS AND IN FAVOR OF REVERSAL
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
PHILIP M. KOVNAT
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
TABLE OF AUTHORITIES.................................................................................... ii
STATEMENT OF INTEREST................................................................................ 1
STATEMENT OF ISSUES....................................................................................... 1
STATEMENT OF THE CASE................................................................................ 2
A. Factual Background.......................................................................................... 2
B. Procedural Background.................................................................................... 5
I. The district court erred in granting CRST summary judgment on the retaliation claims............................................................................................................ 7
A. Plaintiffs proved that their protected opposition was a but-for cause of the alleged adverse actions, and they need not also demonstrate that CRST acted with a malicious retaliatory motive............................................................. 9
B. The district court was correct that the pre-July 2015 retaliation plaintiffs suffered an adverse action, but it erred in analyzing whether this was true of plaintiffs whose claims arose subsequently................................... 16
II. The district court erred in granting CRST summary judgment as to the constructive discharge claims................................................................................... 24
CERTIFICATE OF COMPLIANCE................................................................... 27
CERTIFICATE OF SERVICE...................................................................................
Blake v. MJ Optical, Inc.,
870 F.3d 820 (8th Cir. 2017)................................................ 25, 26
City of Los Angeles, Department of Water &
Power v. Manhart,
435 U.S. 702 (1978)...................................................................... 11
Franklin v. Local 2 of the Sheet Metal Workers
565 F.3d 508 (8th Cir. 2009)....................................................... 11
United Automobile, Aerospace & Agricultural Implement Workers of America,
UAW v. Johnson Controls, Inc.,
499 U.S. 187 (1991)................................................................. passim
International Brotherhood of Teamsters v. United
431 U.S. 324 (1977)......................................................................... 5
Jankovitz v. Des Moines Independent Community School
421 F.3d 649 (8th Cir. 2005)....................................................... 11
Northeast Ohio Coalition for the Homeless v.
831 F.3d 686 (6th Cir. 2016)....................................................... 26
Porter v. Houma Terrebonne Housing Authority Board
810 F.3d 940 (5th Cir. 2015)....................................................... 21
Spears v. Missouri Department of Corrections
& Human Resources,
210 F.3d 850 (8th Cir. 2000)....................................................... 17
v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011)..................................................... 17
of Texas Southwestern Medical Center v. Nassar,
570 U.S. 338 (2013)......................................................................... 8
29 U.S.C. § 623(a)(1).......................................................................... 10
42 U.S.C. § 2000e-2(a)(1)................................................................... 11
Congress charged the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII). This case raises important questions about the showings necessary to establish two of the three elements of a Title VII retaliation claim—the causation element and the “materially adverse action” element. This appeal also presents a critical question regarding the proper standard for Title VII constructive discharge claims. Because this Court’s resolution of these issues may significantly affect Title VII enforcement, EEOC respectfully offers its views to the Court. See Fed. R. App. P. 29(a)(2).
1. Does a plaintiff establish causation in a Title VII retaliation case if she shows that her employer has a policy of subjecting employees who complain of sexual harassment to an action that she alleges is adverse, or must she also show that her employer intended to harm her for complaining about harassment?
2. a. If raised by defendant as an alternative ground for affirmance, did the district court correctly conclude that defendant’s pre-July 2015 practice of removing certain drivers who complained of harassment from their trucks without pay was materially adverse for purposes of plaintiffs’ Title VII retaliation claims?
b. To show that defendant’s subsequent practice of removing drivers who complained of harassment from their trucks and providing “HR layover pay” was materially adverse for purposes of their Title VII retaliation claims, were plaintiffs required to establish that the pay they received was “significantly” or “substantially” less than the pay they otherwise would have earned?
1. Defendant CRST Expedited, Inc. (CRST), is a long-haul freight transportation company with about 3,500 drivers working at any given time. Appellant App. (AA) 63; Amicus Supplemental App. (ASA) 221. CRST pairs “two drivers per truck so that one driver may rest while the other is driving.” AA 234 (relying on ASA 221). CRST drivers generally fall into four categories: (1) “owner-operators,” who own or are leasing to own the vehicles they operate, ASA 222; (2) “student drivers,” who are newly hired drivers with little to no trucking experience, ASA 222; (3) “lead drivers,” who are responsible for training student drivers by driving alongside them, ASA 212, 222; and (4) “co-drivers,” who are neither lead nor student drivers, AA 82. For safety reasons, student drivers may not drive alone. ASA 222.
While drivers are on the road, CRST pays them a “split mileage rate,” meaning that drivers earn wages for half the number of miles their trucks travel during a pay period, multiplied by a personal rate based on seniority. ASA 211. CRST’s president testified that drivers with one year of experience earn a daily average of $150 to $200. ASA 171, 177. Drivers may also earn “layover” or “breakdown” pay in certain limited circumstances when they are not driving. ASA 223-24; AA 25.
Pursuant to what the district court called CRST’s “removal” policy, AA 172, 191, when a driver complains to CRST of sexual harassment occurring on a truck, the complainant must generally exit the truck, ASA 214-15 (noting exceptions when the complainant is the lead driver or an owner-operator). When first joining CRST, all drivers must certify that if they are “subjected to harassment or discrimination,” they will “immediately report it” so they can be “removed from the harassing situation.” ASA 127-28; AA 170-71.
From October 2013 to at least July 1, 2015, complainants who had to exit trucks pursuant to CRST’s removal policy were ineligible for pay for the first 48 hours they were off the trucks. ASA 215. After 48 hours, CRST contends that complainants were eligible for “standard layover pay” of $40 per day. ASA 215. It is undisputed, however, that 49 of 51 class members removed from trucks during this period earned nothing until they were driving on another truck, regardless of whether their wait time exceeded 48 hours. AA 190-91.
On or after July 1, 2015, CRST modified its removal policy to provide “HR layover pay” of $100 per day to any driver removed from a truck due to making a sexual harassment complaint. ASA 166; see also AA 133-34. Under the revised policy, CRST stops compensating a complainant with HR layover pay when she is offered another co-driver, which can occur before “she actually begins driving again.” AA 179 (citing ASA 171). CRST selected the $100 figure by multiplying the minimum wage in California by ten hours, the average number of hours worked per day. AA 138; ASA 132 (noting HR layover pay was later increased to $110 per day when California’s minimum wage increased).
CRST admits that its employee handbooks do not explain that drivers removed from trucks because of harassment complaints are eligible for HR layover pay. ASA 215-16. CRST’s Director of Human Resources testified that CRST did not “make drivers aware of” the availability of such pay unless they were “involved with [an] allegation” because CRST wanted “to ensure [the pay] [wa]s used for the correct purposes.” AA 138; ASA 171.
2. Plaintiffs allege, and CRST largely admits, that male drivers subjected scores of female drivers to sexual harassment. See AA 247-64; ASA 92. Leslie Fortune and Claudia Lopez, two class representatives, testified that they declined to complain about some harassment because they “knew that if [they did complain, they] would just get pulled off the truck and stop being able to earn wages,” which they “did not want . . . to happen.” ASA 148, 156.
Fortune, Lopez, and Cathy Sellars filed this action under Title VII alleging, inter alia, retaliation and constructive discharge. See ASA 1-2, 61-62; AA 163. The district court subsequently certified a class defined as “[a]ll women . . . employed as team truck drivers by CRST” between October 2013 and December 2017 “who [were] subjected to retaliation . . . as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment.” ASA 121; AA 175, 179.
The court analyzed the class retaliation claim under the pattern-or-practice framework established in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), and granted summary judgment to CRST. AA 185, 201. Based on a concession by CRST, the court assumed that drivers who complained to CRST of sexual harassment engaged in “opposition” activity protected by Title VII’s anti-retaliation provision. AA 30, 182, 196. The court then analyzed whether the actions by CRST that plaintiffs challenged were “materially adverse” and therefore actionable. AA 182-95. The court concluded that the 51 class members whose claims arose before July 2015 demonstrated a triable issue as to whether CRST engaged in a practice of subjecting them to adverse actions because at least 49 of those drivers earned no pay while removed from trucks. AA 190-91, 193-95. The court found, however, no triable issue as to whether plaintiffs covered by the July 2015 removal policy experienced a pattern of receiving “substantially less [pay] than they would have made had they stayed on the truck,” and on that basis it granted CRST summary judgment on those claims. AA 192-93. Significantly, the court never evaluated whether the relevant legal standard actually requires plaintiffs to prove such a “substantial” pay cut to satisfy the adverse action element of their claim.
Because the court concluded that the pre-July 2015 class members could survive summary judgment as to the adverse action element, the court analyzed whether those plaintiffs demonstrated “that a retaliatory motive was the but-for cause of the alleged adverse employment action.” AA 195. The court acknowledged that CRST had a policy of “remov[ing] women from their truck when they complained of sexual harassment” and depriving them of “regular pay while off the truck.” AA 195. The court nonetheless held that plaintiffs had not submitted “direct evidence” of “retaliatory intent” because plaintiffs did not establish, the court said, that CRST “inten[ded] to impose” on them “negative consequences.” AA 197. The court also rejected plaintiffs’ alternative argument based on the inferential proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). AA 197-201. The court held that a reasonable jury could not infer that CRST had a retaliatory motive or disbelieve the reasons CRST articulated for removing sexual harassment complainants from trucks without pay, such as the asserted need “to protect employee safety and well-being.” AA 196-201.
The court later granted CRST summary judgment on the individual retaliation and constructive discharge claims. AA 283-84, 287. The court rejected the individual retaliation claims—which arose under the policy in effect before July 2015—for the reasons it rejected the related class retaliation claim: insufficient evidence of “retaliatory intent” or “pretext.” AA 283-84. The court held that plaintiffs’ constructive discharge claims failed because, although a reasonable jury could determine that plaintiffs’ working conditions were “intolerable,” it could not conclude that “CRST deliberately created intolerable working conditions with the intent that any plaintiff would resign her employment.” AA 287.
Over the timeframe at issue in this lawsuit, CRST implemented policies to address sexual harassment its female truck drivers were experiencing when paired with male drivers. Part of the policies involved separating complainants from alleged harassers, and EEOC does not take issue with that aspect of the policies. The questions EEOC addresses pertain to other aspects of CRST’s policies or practices, which plaintiffs argue left women who objected to harassment worse off than if they had remained silent. As explained below, the district court erred in part in analyzing whether those aspects of CRST’s policies and practices violated 42 U.S.C. § 2000e-3(a), known as Title VII’s “antiretaliation provision,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006).
Under § 2000e-3(a), it is “an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has,” inter alia, “opposed any practice made an unlawful employment practice” under Title VII. In Burlington Northern, the Supreme Court explained that the anti-retaliation provision’s “primary purpose” is to “maintain unfettered access to statutory remedial mechanisms.” 548 U.S. at 64 (citation omitted). In keeping with this purpose, the Court construed the provision to encompass claims based on “materially adverse” employer actions, which the Court defined as actions “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57, 68. In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court addressed the causation standard in retaliation claims, holding that plaintiffs “must establish that [their] protected [opposition] was a but-for cause of the alleged adverse action by the employer.” Id. at 362.
Thus, “[t]o establish a retaliation claim under Title VII, an employee must show  that he engaged in statutorily protected conduct,  that he suffered a [materially adverse] action, and  that the protected conduct was a but-for cause of the adverse action.” Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013). In district court, CRST did not dispute that plaintiffs’ sexual harassment complaints to CRST constituted conduct protected by the statute. See supra p. 5. As explained below, the district court erred in part in analyzing the remaining two elements of plaintiffs’ retaliation claims.
1. Contrary to the analysis of the district court, all retaliation class members established the causation element of their Title VII retaliation claims. CRST acknowledges not only that all the complaints of sexual harassment here constituted protected opposition, but it also readily admits that, had plaintiffs not voiced harassment complaints, they would have remained on the trucks and continued earning “split mileage” pay. See AA 189-90. As a result, plaintiffs have shown that their protected opposition conduct was a but-for cause of the actions plaintiffs allege are adverse: removal from trucks without regular pay.
It is particularly clear that plaintiffs established causation because CRST’s removal policy singles out employees for removal from trucks, resulting in loss of regular pay, based on their protected opposition. See supra pp. 3-4. CRST’s removal policy therefore resembles employment policies that the Supreme Court has deemed “facially discriminatory” or “discriminatory on [their] face,” meaning that they expressly draw distinctions based on a protected criterion. In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), for instance, the Supreme Court addressed an airline’s policy that granted certain privileges to pilots who were disqualified from serving in that position for reasons other than age but did not afford the same privileges to pilots disqualified because of age. Id. at 120-22. The Court concluded that the policy discriminated based on age “on its face” under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a). 469 U.S. at 121-22. Similarly, in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Court analyzed an employer’s policy that disqualified fertile women from a class of lead-exposed jobs, based on a concern for protection of unconceived offspring, but did not likewise disqualify fertile males. Id. at 190-92, 197. The Court held that the employer’s policy was “facially discriminatory” under Title VII’s provision barring sex discrimination because it gave “[f]ertile men, but not fertile women,” a “choice as to whether they wish to risk their reproductive health for a particular job.” Id. at 197-98, 200.
The statutory provision at issue here is identical in material respects to those at issue in Thurston and Johnson Controls because each provision bars (or generally bars) “discriminat[ion]” “because” of a protected criterion. Compare 42 U.S.C. § 2000e-3(a) (prohibiting “discriminat[ion] . . . because [an employee] has opposed” a Title VII violation), with 29 U.S.C. § 623(a)(1) (generally prohibiting “discriminat[ion] . . . because of . . . age”); and 42 U.S.C. § 2000e-2(a)(1) (generally prohibiting certain “discriminat[ion] . . . because of . . . sex”). CRST’s removal policy expressly classifies employees on the basis of whether they have opposed sexual harassment, and thus the policy facially differentiates based on a protected criterion under Thurston, Johnson Controls, and other decisions. See, e.g., City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 704, 715-16 (1978); Dothard v. Rawlinson, 433 U.S. 321, 324-26, 332-33 (1977); Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 653 (8th Cir. 2005). And it is well-established that where, as here, a policy facially differentiates between employees based on a protected criterion, the policy itself constitutes “direct evidence” of causation. Thurston, 469 U.S. at 121; Carney v. Martin Luther Home, Inc., 824 F.2d 643, 648 (8th Cir. 1987).
In deciding the causation issue, this Court need not resolve whether CRST’s removal policy would be deemed to facially differentiate based on a protected criterion if it applied not just to complaints of harassment and discrimination but also to other types of complaints. Compare EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 430-31 (7th Cir. 1992) (holding such policies are “discriminatory”), with Franklin v. Local 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d 508, 513-14, 520-21 (8th Cir. 2009) (stating in dictum that a union’s practice of publicly disclosing the identities of individuals who filed EEOC charges was not “per se retaliation” because the practice stemmed from the union’s policy of publicizing “all legal bills” and did not “singl[e] out [union] members who filed EEOC charges” (emphasis added)). This Court need not decide that issue here because a reasonable jury could conclude that CRST’s removal policy is limited to discrimination and harassment complaints. See AA 139-40; ASA 138-41 (descriptions of policy relied upon by parties characterizing it as applying only to such complaints). Indeed, in district court, CRST never argued that its policy covers other types of complaints and is non-discriminatory for that reason.
2. As noted, supra p. 6, the district court evaluated the causation element only with respect to class members whose claims arose before July 2015, when complainants removed from trucks became eligible for HR layover pay. AA 195-201. With respect to these pre-July 2015 plaintiffs, the court acknowledged that CRST maintained a policy of “remov[ing] women from their truck when they complained of sexual harassment” and depriving them of “their regular pay while off the truck.” AA 195. The court never analyzed, however, whether those undisputed facts established the requisite but-for causation.
The court instead framed its analysis by asking whether plaintiffs had established that CRST acted with “retaliatory intent.” AA 197. The court rejected plaintiffs’ argument that there was direct evidence of such intent because, according to the court, plaintiffs did not demonstrate that CRST implemented its policy with an “intent to impose” “negative consequences” on them for engaging in protected activity. AA 197. The court also rejected plaintiffs’ alternative argument that they had established a triable issue of retaliation under the inferential proof scheme of McDonnell Douglas, 411 U.S. 792. AA 197-201. In that regard, the court implicitly held that CRST had articulated non-retaliatory reasons for removing harassment complainants from trucks without pay, and it found that a jury would have no reason to doubt the veracity of CRST’s articulated reasons or believe they were pretextual. AA 196, 197-201.
The district court’s analysis missed the mark for several reasons. Most importantly, the court erred in requiring plaintiffs to show that CRST implemented its removal policy with an intent to harm plaintiffs. In Johnson Controls, for example, the court of appeals decision under review had similarly “assumed” that the “explicit[ly] gender-based policy” at issue did not constitute sex discrimination because its “asserted purpose”—“protecting women’s unconceived offspring”—was “ostensibly benign.” 499 U.S. at 197-98, 200. The Supreme Court rejected this reasoning, explaining that “the absence of a malevolent motive” does not redeem a “facially discriminatory policy” because “[w]hether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.” Id. at 199-200; see also, e.g., Feemster v. BSA Ltd. P’ship, 548 F.3d 1063, 1070 (D.C. Cir. 2008) (“[U]nder Title VII, when a policy is ‘discriminatory on its face,’ the defendant’s motive is irrelevant.”) (relying on Thurston and Johnson Controls); Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001) (explaining that “motive, in the sense of malice, is not required” to establish retaliation).
In Board of Governors, the Seventh Circuit applied this reasoning to the ADEA’s anti-retaliation provision, 29 U.S.C. § 623(d), which is materially identical to Title VII’s. As that decision explained, an employment “policy which provides for . . . differential treatment” based on “statutorily protected activity” with respect to a “decision to take adverse employment action” is “invalid regardless of the employer’s motivation for adopting or invoking the policy.” 957 F.2d at 428. In accordance with this principle, Board of Governors held that a collective bargaining agreement provision withdrawing access to grievance proceedings if an employee pursued a matter in another forum, including by filing an EEOC charge, discriminated based on protected activity “on its face,” irrespective of whether the provision was merely meant to avoid duplicative litigation. Id. at 427-31.
To be sure, when courts describe claims arising under § 2000e-3(a), they sometimes refer to them as “retaliation” claims that require a showing of “retaliatory motive” or “retaliatory intent.” E.g., Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017). The word “retaliate” and its variants can be interpreted to involve a malevolent motive, and such a motive is present in many actionable cases brought under § 2000e-3(a), which may have led the district court to conclude that an intent to harm plaintiffs was required here. The statutory text, however, bars “discriminat[ion]” based on protected opposition, not “retaliation.” 42 U.S.C. § 2000e-3(a). Under the plain language of the statute and under Johnson Controls and related cases, it is unnecessary to show that employers harbored malevolent motives when treating employees engaged in protected activity differently from other employees. Courts use the term “retaliation” and its variants not “because retaliation claims require proof of a greater level of animus than that required in [substantive] discrimination claims,” such as sex and age discrimination claims, but instead “as a shorthand way to distinguish substantive . . . discrimination claims from claims of discrimination based on the exercise of legal rights granted by the [anti-discrimination statutes].” Bd. of Governors, 957 F.2d at 427; cf., e.g., Donathan, 861 F.3d at 737, 739 (treating as equivalent two different articulations of the causation standard for retaliation claims—(1) that plaintiff must prove that her “protected action was the but-for cause” of the adverse action; and (2) that a plaintiff must prove “an impermissible retaliatory motive was the ‘but-for cause’ of the” adverse action (citation omitted)).
The district court also erred in analyzing this case under McDonnell Douglas and requiring plaintiffs to show that the reasons CRST articulated for its removal policy were pretext for discrimination under § 2000e-3(a). As noted, supra p. 11, a policy that facially differentiates based on a protected criterion itself constitutes “direct evidence” of causation, and it is well established that “the McDonnell Douglas test is inapplicable where the plaintiff presents [such] direct evidence.” Thurston, 469 U.S. at 121; Arraleh v. Cty. of Ramsey, 461 F.3d 967, 974-75 (8th Cir. 2006).
B. The district court was correct that the pre-July 2015 retaliation plaintiffs suffered an adverse action, but it erred in analyzing whether this was true of plaintiffs whose claims arose subsequently.
For the reasons just identified, all class members established the causation element of their Title VII retaliation claims because, on its face, CRST’s removal policy singles out employees for differential treatment based on their protected opposition—lodging complaints of sexual harassment. To prevail on their claims, however, plaintiffs also must establish that the actions CRST took in response to their harassment complaints qualified as “materially adverse actions.” In Burlington Northern, the Supreme Court held that an employer’s acts qualify as materially adverse under § 2000e-3(a) if they are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. at 57, 67-68. The district court correctly held that the pre-July 2015 class members endured adverse actions, but it incorrectly analyzed whether that was true with regard to the other class members.
1. As for the pre-July 2015 class, the district court concluded that a jury could find that CRST subjected them to a policy of removing them from trucks and suspending their pay because they complained of sexual harassment, which the court concluded would dissuade “a reasonable employee in the same circumstances” from engaging in protected opposition. AA 194-95. If CRST challenges this ruling on appeal (in requesting affirmance on alternative grounds), this Court should affirm.
Even under this Court’s pre-Burlington Northern cases, which required retaliation plaintiffs to show a “material employment disadvantage,” not just actions that could dissuade a reasonable worker from opposing harassment, “cutting [an] employee’s pay or benefits” met the standard for material adversity in the retaliation context. Higgins v. Gonzales, 481 F.3d 578, 589-90 (8th Cir. 2007) (citations omitted), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011); see also Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000). It follows a fortiori that pay cuts are actionable under Burlington Northern, which broadened the standard for what is materially adverse in this context. See, e.g., Higgins, 481 F.3d at 589 (explaining how Burlington Northern altered this Court’s materially adverse standard). The district court was thus correct that a reasonable jury could conclude that the pre-July 2015 plaintiffs suffered materially adverse actions.
2. The district court erred, however, in its analysis of whether plaintiffs subject to CRST’s July 2015 policy experienced a pattern or practice of materially adverse actions. With respect to these plaintiffs, the court did not analyze whether a reasonable worker in their position would have been dissuaded from making a harassment complaint, nor did the court discuss case law applying that Burlington Northern standard. Instead, the court appeared to assume—without explanation—that these plaintiffs could survive summary judgment on the adverse action element only if they established that they received “significantly” or “substantially” less pay than they would have received had they stayed on their trucks. AA 192. The court then held that plaintiffs’ evidence did not establish that fact. AA 192. Specifically, the court faulted plaintiffs for the method they used to approximate the amount of pay they would have received if they had stayed on the trucks—which relied on data showing the amount of pay they had received in the two weeks prior to their removal. AA 192-93.
The district court committed legal error in two important respects. First, the court was incorrect to assume implicitly that plaintiffs must establish “significant” or “substantial” compensation losses to satisfy the Burlington Northern standard. AA 192-93. Instead, virtually any “readily quantifiable . . . reduction[s] of pay or monetary benefits” would suffice to deter a reasonable worker from making or supporting a discrimination complaint. Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999); cf. Burlington N., 548 U.S. at 67-68 (agreeing with the Seventh Circuit’s formulation for what constitutes materially adverse actions in retaliation cases); see also, e.g., Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir. 2008) (holding that a jury could find a job transfer to be adverse because, among other things, the transfer likely required the plaintiff to pay union dues she did not owe before).
Second, and more fundamentally, the district court focused too rigidly on whether plaintiffs who were subjected to the July 2015 policy proved that they actually suffered significant pay cuts, and instead should have analyzed whether these women reasonably believed, when deciding whether to complain, that they might lose pay or suffer other adverse consequences. Under Burlington Northern, an action is materially adverse if it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. at 57. As Burlington Northern explained, a key purpose of the anti-retaliation provision is to “prevent employer interference with ‘unfettered access’ to Title VII’s remedial mechanisms,” and “[i]t does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers.” Id. at 68 (citation omitted).
Applying the standard it announced, Burlington Northern ruled that the jury could have reasonably found that the plaintiff’s suspension was materially adverse, even though she was ultimately reinstated with full back pay 37 days later. See id. at 72-73. “A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former,” the Supreme Court reasoned, even if the employee ultimately suffered no actual monetary loss. Id. at 73. Similarly, in Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007), the Tenth Circuit held that a plaintiff suffered an adverse action under Burlington Northern where, among other things, her employer made various threats and contested her unemployment benefits because such actions would deter “a reasonable employee in [the plaintiff’s] shoes” from engaging in opposition, even though there was no evidence that the plaintiff’s “benefits were ever . . . actually interrupted” or “suspended for any period of time.” Id. at 1087-88, 1090-91. As Williams explained, “material tangible economic . . . damage is certainly sufficient but not necessary to satisfy [Burlington Northern’s] requisites.” Id. at 1091.
Similarly, in Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015), the Fifth Circuit recognized that an unfulfilled threat of a pay cut “might deter someone from supporting a discrimination charge in certain circumstances,” but it held that the pay-cut threat at issue there was not materially adverse because it was not “realistic” or “cred[ible].” Id. at 268, 271-72 (explaining the plaintiff “was a supervisor familiar with company employment policies,” and the threat to cut her pay came from someone “outside her chain of command and who she knew had no final decision-making authority”); cf. Billings, 515 F.3d at 54-55 (concluding that a reasonable employee in plaintiff’s position would be dissuaded from engaging in opposition if she knew that doing so would “risk a formal investigation and reprimand” and raise “the prospect of having to take personal time” (emphasis added)); Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (similar).
These decisions stand for the proposition that determining whether an action is materially adverse under Burlington Northern hinges more on whether it holds a deterrent prospect of harm than on whether that specific harm ultimately comes to pass. Thus, if a reasonable worker standing in the shoes of a CRST driver in or after July 2015 could have believed that complaining of sexual harassment might jeopardize her pay or risk other adverse consequences, it would be reasonable for her to decline to complain, and she should thus be deemed to have suffered an adverse action for purposes of § 2000e-3(a). See, e.g., Burlington N., 548 U.S. at 69-70, 73 (emphasizing that the standard focuses on “the perspective of a reasonable person in the plaintiff’s position” when she is “facing the choice” whether to complain); Higgins, 481 F.3d at 591 (observing that Burlington Northern “asks us to consider what a reasonable employee would do in [the plaintiff’s] shoes”); see also Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 947-48 (5th Cir. 2015) (analyzing the standard from the perspective of what “a reasonable employee in [plaintiff’s] shoes might have legitimately expected” (emphasis added)).
EEOC takes no position on whether a reasonable juror could conclude based on the voluminous record here that plaintiffs subject to CRST’s July 2015 policy—which is a clear improvement over CRST’s prior policy—suffered materially adverse actions under the standard just articulated. We note, however, that several pieces of record evidence tend to support the conclusion that a reasonable CRST driver deciding whether to make a harassment complaint in or after July 2015 could have been dissuaded from doing so due to a credible risk of losing pay. For instance, CRST’s president testified that drivers with one year of experience earned a daily average of $150-$200 while driving, ASA 171, 177; but under CRST’s July 2015 policy, drivers removed from trucks due to harassment complaints were eligible for only $100-$110 per day, and that pay ceased when they were offered a new co-driver, which could occur before they actually resumed driving. AA 178-79. Moreover, CRST decided on the $100-$110 rate not by attempting to approximate what it believed harassment complainants would have earned absent protected opposition, but instead by approximating what those drivers would have been entitled to under California’s minimum wage laws. AA 138.
Compounding the problems created by CRST’s failure to guarantee that harassment complainants would not lose pay because of their protected activity, it is undisputed that, although CRST decided to make complainants eligible for HR layover pay in or after July 2015, CRST did not publicize this decision to employees. See ASA 215-16. Quite the contrary, CRST’s Director of Human Resources’ testimony suggests that the company deliberately concealed the revised policy from drivers unless they lodged a harassment complaint because it feared that publicizing the policy would encourage such complaints. ASA 171. Particularly given that CRST generally had not paid harassment complainants removed from trucks before July 2015, CRST’s failure to notify employees of the revised policy would support the conclusion that a reasonable driver in a harassment victim’s position in or after July 2015 would likely expect to lose pay if she complained. Consistent with this evidence, two class representatives testified that they “knew if [they] complained to CRST about . . . harassment,” CRST “would take [them] off the truck and make [them] stop earning pay, which [they] did not want to happen.” ASA 183, 200. Although those class representatives stopped working for CRST before July 2015, their testimony supports the conclusion that a reasonable driver subject to the July 2015 policy would have shared that belief, particularly given that CRST did not publicize the new policy. This evidence could support the conclusion that CRST’s actions tended to suppress harassment complaints, contrary to the “primary purpose” of Title VII’s anti-retaliation provision of ensuring that employees retain “unfettered access to [the statute’s] remedial mechanisms,” Burlington N., 548 U.S. at 64 (citation omitted).
Moreover, under Burlington Northern, “[c]ontext matters” in that “an act that would be immaterial in some situations is material[ly] [adverse] in others.” 548 U.S. at 69 (citation omitted). This record includes evidence that the context here made CRST’s practice of removing harassment complainants from trucks uniquely disadvantageous. For example, when a CRST driver exited a truck because she complained of harassment, she often found herself, in the words of a CRST manager, “stuck in the middle of nowhere,” ASA 161-62, and thus in need of lodging and transportation. Even if CRST ultimately reimbursed these women for hotel and transportation costs—and that issue is disputed, see ASA 166-67—it appears there is no record evidence that CRST informed drivers ahead of time that it would provide such reimbursement if they had to exit a truck under the removal policy. Also, class members subject to the policy often had to travel before being re-paired with another driver so that they could resume earning regular pay. ASA 206-07. And they sometimes faced the choice whether to complain of harassment while alone in a confined space with their alleged harasser, who might influence whether they passed their training, ASA 213, and in some cases reacted to their allegations with violence and threats, See 225-26; AA 255-56.
Evidence of these unique circumstances, in addition to the pay evidence discussed above, supra pp. 21-23, is relevant to determining whether a reasonable worker in these plaintiffs’ shoes would have been dissuaded from opposing harassment. Because the district court applied an incorrect standard in evaluating whether class members covered by the July 2015 policy were subjected to adverse actions, this Court should reverse and remand so the district court can evaluate that issue under the correct standard.
II. The district court erred in granting CRST summary judgment as to the constructive discharge claims.
Under 42 U.S.C. § 2000e-2(a), employers are barred from “discharg[ing] any individual . . . because of such individual’s . . . sex.” It is well established that plaintiffs may recover for a violation of this provision by proving a “constructive discharge.” Such a plaintiff must show that he resigned and that his discriminatory working conditions “bec[a]me so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Green v. Brennan, 136 S. Ct. 1769, 1776-77 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)). In Green, the Supreme Court considered whether a plaintiff must additionally show that his employer made “conditions intolerable with the specific discriminatory intent of forcing the employee to resign” and observed that a plaintiff need not show “that his quitting was his employer’s plan all along.” Id. at 1779-80 (emphasis and citation omitted).
The district court here held “that a reasonable jury could conclude that the conditions” the class representatives experienced “were intolerable.” AA 287. Applying this Court’s pre-Green precedent, the district court nevertheless granted CRST summary judgment on the constructive discharge claims solely because plaintiffs had not demonstrated, according to the court, that “CRST deliberately created intolerable working conditions with the intent that any plaintiff would resign.” AA 287 (relying on Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 553 (8th Cir. 2007), which required such a showing). Because the district court required a showing of CRST’s “deliberateness” that the Supreme Court has observed is unnecessary in constructive discharge cases, this Court should reverse summary judgment for CRST on these claims. See EEOC v. Consol Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (recognizing that “Green’s express holding abrogate[d]” that court’s prior precedents requiring constructive discharge plaintiffs to prove their employer acted with “deliberateness”).
SHARON FAST GUSTAFSON
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
s/Philip M. Kovnat
PHILIP M. KOVNAT
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
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s/Philip M. Kovnat
PHILIP M. KOVNAT
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
I, Philip M. Kovnat, hereby certify that I electronically filed the foregoing brief with the Court and served all counsel of record via the appellate CM/ECF system on this 19th day of November, 2019.
s/Philip M. Kovnat
PHILIP M. KOVNAT
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
 EEOC takes no position on any other issue in this appeal.
 The following facts are undisputed unless otherwise noted.
 Although CRST’s July 2015 policy provides for removal from trucks when drivers make certain other types of complaints, see AA 133-34, in those circumstances, removal and payment decisions are made on a case-by-case basis. AA 134 n.*. As CRST conceded in district court, the July 2015 policy at issue here is therefore specific to discrimination complaints. See ASA 131.
 Davis v. Lambert of Arkansas, Inc., 781 F.2d 658 (8th Cir. 1986), does not compel a contrary conclusion. Davis affirmed a district court’s finding that an employer’s refusal to re-hire a plaintiff because she had a discrimination lawsuit pending against the company was not “in retaliation for the plaintiff’s having filed the [discrimination] claim” but was instead based on a “good faith belie[f] that it would be improper to even discuss the reemployment matter with the plaintiff” during the pending litigation. Id. at 659, 661. Davis pre-dates Johnson Controls, however, in which the Supreme Court clarified that an employer’s “ostensibly benign” reason for expressly differentiating between employees based on a protected criterion does not render the employer’s actions non-discriminatory. 499 U.S. at 198-99. Davis is thus no longer good law.
 In one post-Green decision, this Court cited its pre-Green precedent for the proposition that constructive discharge plaintiffs “must show that the employer deliberately created intolerable working conditions with the intention of forcing [them] to quit.” Blake v. MJ Optical, Inc., 870 F.3d 820, 826 (8th Cir. 2017) (citation omitted). That statement, however, was dictum because Blake rejected the constructive discharge claim on another ground. Id. Also, the parties in Blake did not bring Green to the Court’s attention, and Blake did not address whether the deliberateness standard it recited was consistent with Green. Blake is therefore not binding on that question. See Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720-21 (6th Cir. 2016) (following Supreme Court precedent, not subsequent contrary circuit precedent, in similar circumstances, and collecting apposite decisions from other circuits).