No. 15-55556

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

 

ROBIN ANDERSON,

          Plaintiff/Appellant,

 

v.

 

CRST INTERNATIONAL, INC.,

          Defendant/Appellee.

 

 

On Appeal from the United States District Court

for the Central District of California

Civ. Action No. 14-cv-368

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

SUSAN R. OXFORD

Attorneys

 

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

 

Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

 

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

A.   Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

B.    District Court’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17

 

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 

I.                   A jury could find, on this record, that Vegtel’s conduct was both “severe” and “pervasive” enough to alter Anderson’s work environment and make it hostile under Title VII . . . . . . . . . . . . . . 19

 

II.                A reasonable jury could fine that CRST was liable for Anderson’s harassment under Title VII because it failed to take effective remedial action in response to her complaint . . . . . . . . . . . . . . . . . 29

 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

 

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

 

Certificate of Service

TABLE OF AUTHORITIES

Cases                                                                                                                   page

 

Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) . . . . . . .  17, 26, 27, 28

 

Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) . . . . . . . . . . . . . . . . 26

 

EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012) . . . . 21, 23, 24

 

EEOC v. CRST, 2009 WL 1783495 (N.D. Iowa June 18, 2009) . . . . . . . . . . . . 35

 

EEOC v. CRST Van Expedited, 611 F. Supp. 2d 918 (N.D. Iowa 2009) . . . . .  25

 

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . 23

 

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . . . . . . . . .  20, 29, 30, 32, 34, 35

 

Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995) . . . . . . . . . . . . . 29, 32, 35

 

Guess v. Bethlehem Steel, 913 F.2d 463 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . 36

 

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . .  19, 26

 

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) . . . . . . . . . 30, 33

Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000) . . . . . . . . . . . .  35 

 

Hoyle v. Freightliner, 650 F.3d 321 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . .   20

 

Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2001) . . . . . . 19, 21

 

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . . . . . . . .  20

 

Morgan v. CRST Van Expedited, Inc.,

     2007 WL 402407 (N.D. Iowa Feb. 1, 2007) . . . . . . . . . . . . . . . . . . . . . . . . .  34

 

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) . . . . . . . . . . . . . 20

Red Hat v. CRST Van Expedited, Inc.,

     2012 WL 4903341 (N.D. Iowa Oct. 16, 2012) . . . . . . . . . . . . . . . . .  24, 33, 34

 

Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396 (5th Cir. 2013) . . . . 23, 24, 26

Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) . . . .  20, 21, 29

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) . . . . . . . . . . . 35

Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008) . . . . . . . . . . . 30, 32

Westendorf v. West Coast Contractors of Nev., Inc.,

     712 F.3d 417 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  23, 29

 

Statutes

 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . .  1

 

42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 

Rules

 

Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

Miscellaneous

 

Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (6/18/99) (at http://www.eeoc.gov/policy/docs/harassment.html) . . . . . . . . . . . . . . .  34, 35

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with interpreting, administering, and enforcing federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.  Title VII prohibits discrimination based on sex, which includes failing to prevent or to remedy sexual harassment in the workplace.  This appeal raises several important questions:  (1) how properly to assess allegations of sexual harassment in an atypical workplace environment—the cab of a long-haul truck and a hotel room far from where plaintiff was hired; (2) whether an employer’s response to a complaint satisfies Title VII if the employer never disciplines the harasser or even tells him his behavior was unacceptable, and never tells the complainant how the problem was remedied; and (3) whether an employer has remedied sexual harassment adequately if its response left the complainant worse off than before she complained.  

Because a ruling on each of these questions could affect the EEOC’s enforcement of Title VII as well as the ability of private parties to enforce their federal civil rights, the Commission offers its views to the Court.  See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1.  Whether a reasonable jury could find that the conduct plaintiff Anderson alleged was “severe” or “pervasive” under Title VII.

2.  Whether a reasonable jury could find that defendant CRST’s response to Anderson’s harassment complaint was ineffective because CRST never disciplined the harasser, never told Anderson what steps it took, and never offered Anderson any more work.

STATEMENT OF THE CASE

A.        Statement of the Facts

CRST is a nationwide long-haul trucking service headquartered in Cedar Rapids, Iowa.  Volume I of Plaintiff’s Excerpts of Record (I-ER.) 13.  Because federal regulations limit long-haul truck drivers to eleven hours of driving time per day, CRST assigns two drivers to every truck so they can operate twenty-two hours per day, equipping each truck with two sleeper berths so one driver can sleep while the other drives.  II-ER.370; III-ER.515. Driver teams generally spend days or weeks on the road together, away from their homes and from CRST terminals, supervisors, and managers. 

CRST assigns each driver team a “fleet manager” who dispatches drivers and troubleshoots any problems.  III-ER.515.  While on the road, drivers communicate with their fleet manager/dispatcher using “Qualcomm,” a radio-transmitted communication system similar to text-messaging that creates a written record of exchanges.  II-ER.368; III-ER.516.

CRST hired Anderson, who was living in California at the time, as a long-haul truck driver at the company’s Fontana, California, terminal on December 10, 2012.  II-ER.296, 373; III-ER.510-12, 763-64.  After Anderson completed CRST’s new-driver orientation, the Fontana terminal manager, Alvin Hoggard, introduced her to Eric Vegtel and suggested they drive together.  II-ER.296.  Although CRST considered Vegtel and Anderson co-drivers, CRST had assigned the truck to Vegtel, not Anderson, and Hoggard informed Anderson that Vegtel was the “lead driver.”[2]  II-ER.88, 247-48, 369-70.   

Immediately after they started driving together on December 14, Vegtel began driving with his pants unbuttoned and unzipped, “[a]nd it never changed.”  II-ER.380-81, 386.  When Anderson requested “several” times that Vegtel close his pants and cover himself, he responded that he was “too large,” looking pointedly towards his lap.  II-ER.380-81, 387-91.  His conduct “progressed to where [Vegtel] always had his pants unzipped and unbuttoned and always opened all the time.  He never zipped up, buttoned up or anything.”  II-ER.380.  When Vegtel stood to change driving shifts or exit the truck at rest stops, his pants would fall to the floor.  II-ER.380, 386.  Occasionally, Anderson would return to the truck from the ladies’ room at a truck stop, and Vegtel “would be standing on the side [of the truck] where the running board is with everything out.”  II-ER.386.

At the same time, Vegtel began making sexually charged remarks about his body and describing his sexual activities and interactions with women, even after Anderson asked him not to.  During their first assignment, Vegtel told a “lengthy” story about “a painful erection” he had experienced the previous night.  II-ER.296-97, 381-82; III-ER.593.  Anderson “kept saying” she did not want to hear any more, but Vegtel ignored her and “just went on and on,” saying the erection “hurt so bad that he felt like he had overdosed on Viagra.”  II-ER.297, 381-82. 

Vegtel also told Anderson that he had been “involved in porn” and that he had “gotten in trouble” for looking at “women with big breasts,” stating when female co-workers “put their ‘large breasts in [his] face’ … he could not control himself under those tempting circumstances.”  II-ER.297, 376-77, 392-93.[3]  Vegtel made the comments about women with “big breasts” as he was telling Anderson he had worked for CRST previously, leaving her with the impression that “that’s why he left CRST the first time.  It had to do with the women there.”  II-ER.392-93. 

Another time Vegtel told Anderson “how good he was with the women in his younger days.”  III-ER.584.  Vegtel also told her that he had had a girlfriend who “accidentally got padlocked into his bedroom” when “she wanted to leave, and he didn’t want her to leave.”  II-ER.406-07.  Vegtel said the girlfriend contacted the police who came and “put him in a cop car.”  II-ER.407.  Anderson thought Vegtel told her that story to show her of what he was capable.  Id.

Anderson attested that these comments and stories were all unsolicited and unwelcome:  “He would be … telling me stuff.… I didn’t have conversations with him.  I always kept telling him not to share that stuff with me.”  II-ER.388, 396-97.  She did not immediately report the conduct to CRST, however, because she “was trying to follow [CRST’s] policy and procedure” that she had learned in orientation by “telling [Vegtel] that I wasn’t interested, that it’s inappropriate, … to knock it off,” hoping “he would knock it off and we could drive as a team.”  II-ER.403; see III-ER.631.  The comments eventually ceased, but Vegtel continued to ride with his pants unzipped and open and, according to Anderson, “it just kept progressing.”  III-ER.631.

In late December 2012, the truck began to lose power and broke down in Pennsylvania on New Year’s Eve, necessitating three nights in a hotel while Anderson and Vegtel waited for the truck to be repaired.  III‑ER.499, 516.  Anderson was “concerned about sharing a room with Vegtel in light of his alarming conduct,” so she sent Joe Stearns, their fleet manager/dispatcher, a Qualcomm message requesting separate hotel rooms.[4]  II-ER.297, 308.  Stearns denied her request, stating CRST would “only reimburse 1 room.”  II-ER.307.  

Anderson asked Vegtel to room with another male CRST driver staying at the same hotel; Vegtel refused.  II-ER.298.  Left with no alternative, Anderson told Vegtel that he must not remove any clothing and must stay on his side of the room for the entire night.  II-ER.298.  Anderson then sent Stearns a Qualcomm message stating, “Vegtel agreed to the rules.”  Id.

On their second night in the hotel, Anderson “woke in the middle of the night to find Vegtel—who was completely naked—coming up off of his bed toward [her]” after having removed his sleep apnea device, thereby allowing him to move about the room unfettered.  II‑ER.298, 353.  Vegtel noticed Anderson was awake, sat back down on the bed, put his head in his hands, and eventually pulled his pants on and got back into bed.  II‑ER.298, 353.  The next day, Vegtel told Anderson he had been naked the night before because he “had an accident,” an explanation Anderson did not believe because there was no sign of any wet bedding or clothing.  II‑ER.298.  Anderson later attested, “He scared me to death.  I thought he was going to rape me.  I was in the middle of nowhere.”  II‑ER.354.

CRST’s anti-harassment policy provides that an employee driver who believes she is being harassed “should immediately notify your Fleet Manager.”  III-ER.629, 631-32.  On January 4, 2013, Anderson sent Stearns a series of Qualcomm messages requesting an immediate return to the Fontana yard because of “some very serious issues with myself and co-driver.”  II-ER.298-99, 311-12, 317; III-ER.517.  Stearns sought additional details, and Anderson replied, “Several issues.  I woke up in the hotel to him sitting naked on the side of the bed.”  II‑ER.298, 313-14; III-ER.517.

CRST’s anti-harassment policy requires supervisors who receive written or oral complaints of sexual harassment to “promptly notify the Human Resources (HR) Department.”  III-ER.631.  There is no evidence Stearns notified HR when he received Anderson’s complaint, nor did he offer to separate Anderson and Vegtel.  Instead, Stearns gave Anderson the contact information for CRST’s HR department.[5]  III-ER.517.  He then assigned the pair a return load to California, as Anderson had asked.  Id.    

As they drove back, another dispatcher tried to assign them a new load to deliver upon their return.  Vegtel’s responding Qualcomm messages indicate he knew that Anderson was unhappy with him and would not be driving with him any longer.  II-ER.319-21.  He indicated that he expected there would be a meeting to discuss what had happened once they arrived in Fontana, and he offered to go home and wait there “to talk to whomever about the situation.”[6]  II-ER.322.  Anderson likewise indicated that they could not deliver the load together, stating:  “If you want 1 of us to do it ok, but not together.”  II-ER.325.

Anderson and Vegtel arrived at the Fontana yard on January 6.  Anderson logged off the truck, removed her belongings, and told her dispatcher she was available to drive the next load solo but would “no longer consent to drive with Vegtel.”  II-ER.97-98, 101; III-ER.620-21.  Hoggard asked Anderson to write up what happened at the hotel, and the next day she gave him a five-page written complaint describing the hotel incident and some (but not all) of Vegtel’s other objectionable conduct.  II‑ER.301-05; III-ER.615, 617.  Hoggard forwarded the statement to HR official Sarah Kircher.  III-ER.717-19.       

The parties dispute what happened after that.  Stearns attested generally that “over the course of several weeks, [he] attempted to team Anderson with another driver,” but “Anderson never returned to CRST or contacted [him] to be assigned a new load.”  III-ER.517.  Stearns said he emailed Anderson “a list of possible female co-drivers to contact” on January 7, see III-ER.517, 527-29, but there is no evidence Anderson received the email.  Stearns did not say what else, if anything, he did to try to reach Anderson.  See III-ER.517-18.  On March 5, Stearns informed his supervisor that Anderson should be removed as a current employee in the system because she was “still inactive” and he had “not heard from her or been able to make contact with her for several weeks.”  III-ER.517. 

Anderson, in contrast, attested that after she notified Stearns on January 6 that she would no longer drive with Vegtel and submitted her written complaint to Hoggard on January 7, she waited for a new assignment, but CRST “never offered [her] another trip.”  II-ER.299.  A few male drivers called her, but no female co-driver ever contacted her.  III‑ER.618.  Anderson attested that CRST “knew [she] wanted a female co‑driver before they sent [her] home” but no one from CRST ever sent her any information about getting a female co-driver.[7]  III-ER.619.

The parties also dispute what CRST did to address Anderson’s complaint.  CRST’s Driver Handbook outlines the steps CRST takes to address harassment complaints, including:  “conduct a thorough, objective, and complete investigation” to determine whether harassment occurred.  III-ER.632.  CRST contends that it “opened an investigation” in response to Anderson’s complaint, but does not identify what actions comprised the investigation, apart from receiving Anderson’s written complaint.  III‑ER.510.  Anderson attests that after she complained, neither Kircher nor anyone else from CRST ever contacted her for any additional information or clarification or to tell her how CRST was addressing her complaint.  III‑ER.619.  She called  Kircher “several times during a two-month period” and left voicemails,  but Kircher “would never take my calls” and never called her back.  II-ER.299; III-ER.617.

As noted above, Vegtel’s Qualcomm messages to Stearns on the return trip reflect his expectation that once they returned, there would be a meeting to discuss Anderson’s unhappiness with his conduct.  II-ER.319-22.  Instead, CRST said nothing to him about Anderson’s complaint and immediately gave him another driving assignment.  II-ER.96-97.  By the following year, CRST had promoted him to be a trainer.  III-ER.644.  Vegtel could not recall any CRST official ever asking him about Anderson’s allegations or talking to him “about any kind of sexual harassment problem,” and he was unaware of any CRST investigation concerning his conduct.[8]  II-ER.336-37.

CRST’s Driver Handbook states that CRST will “[t]ake prompt and effective remedial action commensurate with the severity of the offense”; and “[a]dvise the employee of actions taken to address the complaint.”  III‑ER.632.  CRST barred Vegtel from driving with female drivers after January 6, but did not communicate this action to either Vegtel or Anderson.  Vegtel first learned of the restriction more than a year later, after CRST promoted him to be a “lead driver” and he asked why he was not being allowed to train a female trainee.  II-ER.337.  CRST does not contend that it took any other remedial or corrective steps in response to Anderson’s complaint.        

On January 21, 2013, Kircher sent Anderson a three-sentence letter stating that CRST had conducted an investigation and “taken appropriate action.”  III-ER.510, 513.  The letter did not identify the “appropriate action” and contained no instructions for how Anderson could start receiving assignments again.  III-ER.513.  Anderson never received the letter; Kircher inexplicably sent it to the wrong address, in Michigan, id., even though CRST had hired Anderson in California and knew she was a California resident.[9]

On January 23, Anderson’s dispatcher, Stearns, emailed Kircher asking:  “Have you resolved the HR issue with Robin?  Would like to get her back to work, but last I heard she was waiting till it was resolved.”  III‑ER.517, 530.  The record does not indicate whether Kircher answered Stearns or whether Stearns tried to reach Anderson thereafter.

Kircher’s January 21 letter invited Anderson to contact her if she needed further assistance.  III-ER.513.  Although Anderson never received this letter, she had tried repeatedly after January 7 to reach Kircher by telephone, but Kircher never took her calls or called her back.  II-ER.299.  After almost two months of silence from CRST, Anderson filed a charge with the California fair employment agency on February 27.  III-ER.698.  The same day, the state agency issued a right-to-sue notice at her request and mailed a copy to CRST.  III-ER.702.  On March 6, 2013, CRST removed Anderson as an employee, listing Anderson’s “reason for leaving” as “failed to report” and further stating:  “unable to reach.”  III-ER.512.

Anderson sued CRST alleging, among other things, violations of Title VII for failing to prevent and redress sexual harassment.  III-ER.783-92.  Anderson alleged that CRST’s failure to investigate complaints or punish harassers was “well known within the company” and had “the predictable effect of encouraging harassment, discouraging complaints, and forcing the victimized employees . . . to leave the company.”  III-ER.786.  Anderson further alleged that CRST never investigated her complaint nor imposed any consequences on Vegtel and continued to assign him loads while failing to give her any additional assignments.  III-ER.787.

CRST moved for summary judgment on Anderson’s Title VII claim of hostile work environment, III-ER.756-58, and the district court granted the motion.  I-ER.13-29.

 

 

B.          District Court’s Decision

The district court ruled, first, that Vegtel’s conduct was neither severe nor pervasive.  I-ER.22-24.  Relying on Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the Court stated that “in at least one instance, the Ninth Circuit has confronted conduct more severe than that alleged here and determined it was insufficient to support a viable hostile environment claim.”  I-ER.23.  The court characterized Anderson’s allegations as based on two “primary” incidents—Vegtel’s comments about the porn industry/women’s breasts and the hotel incident—and stated that both were less severe than the single sexual assault at issue in Brooks.  I-ER.24.  The court concluded that Vegtel’s conduct was not a “sustained campaign of harassment” and, therefore, not severe or pervasive enough to alter the conditions of Anderson’s employment and be actionable under Title VII.  Id.

The court also ruled that CRST could not be found liable for Vegtel’s conduct under the standards for co-worker harassment.  I-ER.24-26.  The court stated that CRST was unaware of the harassment while it was occurring and that once Anderson complained, CRST undertook “affirmative remedial action” by barring Vegtel from driving with a female co-driver.  I-ER.25.  Because no further sexual harassment occurred thereafter, the court ruled that “no reasonable jury could conclude that CRST negligently permitted the challenged conduct to occur.”  Id.

In connection with Anderson’s retaliation claim, the district court ruled it undisputed that after Anderson submitted her complaint, Stearns attempted to contact her and emailed her contact information for potential female co-drivers, and that CRST removed her only after not hearing from her for several weeks.  I-ER.26-27.  The court stated that Anderson’s contention that CRST did not offer her work after January 6 did not establish that CRST refused to assign her more work but was, instead, consistent with CRST’s position that it terminated her employment after Stearns tried to reach her for several weeks, without success.  I-ER.27-28.

 

 

 

ARGUMENT

I.            A jury could find, on this record, that Vegtel’s conduct was both “severe” and “pervasive” enough to alter Anderson’s work environment and make it hostile under Title VII.

Title VII makes it unlawful for an employer to discriminate with respect to an employee’s “terms, conditions, or privileges of employment, because of such individual’s … sex.”  42 U.S.C. § 2000e-2(a)(1).  An employer violates this provision when it fails to prevent or remedy sexual harassment that is, both subjectively and objectively, “sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment.”  Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); see Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th Cir. 2001). 

“[W]hether an environment is ‘hostile’ or ‘abusive’ can only be determined by looking at all the circumstances,” including, among other things, “the frequency of the discriminatory conduct; its severity; [and] whether it is physically threatening or humiliating.”  Harris, 510 U.S. at 23.  “[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”  Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004).  The conduct must be both subjectively and objectively hostile, but whether conduct is objectively hostile “should be judged from the perspective of a reasonable person in the plaintiff’s position.”  Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); see Ellison, 924 F.2d at 878-79.

“The question of whether harassment was sufficiently severe or pervasive is ‘quintessentially a question of fact.’”  Hoyle v. Freightliner, 650 F.3d 321, 333-34 (4th Cir. 2011).  At summary judgment, the question “is not whether a jury is sure to find a verdict for the plaintiff,” but “whether a reasonable jury could so find.”  Id.  The most egregious examples of harassment “do not mark the boundary of what is actionable.”  Harris, 510 U.S. at 22.  Thus, employers are not “free from liability in all but the most egregious of cases.”  Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006).  The line between merely inappropriate behavior and actionable harassment is sometimes indistinct, but when that is the case, “its haziness counsels against summary judgment.”  Id. at 605.

As this Court has emphasized, actionable harassment need only be severe or pervasive.  Little, 301 F.3d at 967.  A jury considering all of the circumstances here, from the perspective of a reasonable employee in Anderson’s position, could find that Vegtel’s conduct was both. 

First, the hostile nature of Vegtel’s conduct was heightened by the atypical work environment in which it occurred.  The primary “workplace” of CRST long-haul truck drivers is the cab of the truck.  Over-the-road assignments can last for days or weeks.  During that time, drivers spend most of each day in a small, confined area consisting of the cab of the truck and the sleeping area directly behind it.  And Anderson and Vegtel were frequently hundreds or thousands of miles from the California terminal where CRST hired Anderson and from CRST’s Iowa headquarters where her dispatcher and other CRST managers were located.  This “workplace” is also isolated, for most of the day, even from other members of the general public.  See EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 698 (8th Cir. 2012) (Murphy, J., dissenting) (characterizing “the confined space of a truck” where CRST driver pairs “liv[e] and work[] together” over long routes as an “isolated work environment” lacking “oversight from company management”).

By remaining in her sleeping berth, Anderson was able to remove herself from Vegtel’s immediate presence for the eleven hours per day that Vegtel drove.  II-ER.351.  When Anderson drove her shift, however, she had no authority or other means to prevent Vegtel from sitting in the passenger seat next to her, which he did on half the days they drove together.  II-ER.431.  Thus, when Anderson drove, she was frequently approximately three feet away from a partially undressed man relating stories about his painful erection, having contact with women with large breasts and being unable to control himself, being involved in the porn industry, and “accidentally” padlocking his girlfriend into his bedroom because he did not want her to leave.

Second, the pervasiveness of Vegtel’s conduct in the truck was heightened by the compressed time frame in which occurred.  Harassment consisting of nothing more than a few unwelcome remarks stretching over several months may not be sufficiently pervasive to be actionable under Title VII.  See, e.g., Westendorf v. West Coast Contractors of Nev., Inc., 712 F.3d 417, 421-22 (9th Cir. 2013) (four comments over three months not actionable).  Vegtel’s five unwelcome stories, in contrast, were not only accompanied by his daily practice of keeping his pants unzipped, but they also occurred in just over two weeks.[10]  See, e.g., EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515 (9th Cir. 1989) (harasser’s conduct severe or pervasive enough to alter conditions of employment where it occurred over short period); see also Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396, 403 (5th Cir. 2013) (conduct actionable in part because compressed into four days, in contrast to cases where comparable conduct over more than a year not actionable).   

Considering all of these factors, a reasonable jury could find Vegtel’s conduct pervasive enough to be actionable under Title VII.  See, e.g., CRST, 679 F.3d at 688 (reversing summary judgment for CRST on claimant who alleged, among other things, that her male driving partner rode “every day” in his underwear while claimant drove); cf. Royal, 736 F.3d at 401-02 (finding harassment actionable where, during four-day period, two men sniffed and hovered over plaintiff several times per day “in a small, confined space”).

The final incident that caused Anderson to complain to CRST and declare she would no longer drive with Vegtel also occurred in an isolated location:  a hotel room, in the middle of the night.  After CRST forced Anderson to share a room with Vegtel, she awoke in the dark to a naked Vegtel rising from his bed in her direction—at a time and in a place where there was no one around to intervene on her behalf.  The severity of this incident, like those that occurred in the truck, was heightened because both locations left Anderson with far less ability to separate herself from the abusive conduct than the typical employee being harassed by a co-worker in a setting where other employees, supervisors, and managers can be found.  See, e.g., Red Hat v. CRST Van Expedited, Inc., 2012 WL 4903341, at *4-8 (N.D. Iowa Oct. 16, 2012) (jury could find that lead driver’s suggestive and offensive comments and touching while he and plaintiff were “living [together] on semi-truck” during long-haul driving assignment created hostile work environment in part because of the “physical proximity” and “absence of other people”); see also EEOC v. CRST Van Expedited, 611 F. Supp. 2d 918, 940 (N.D. Iowa 2009) (CRST’s unusual workplace means “CRST’s drivers share more in common with astronauts, submariners or lighthouse watchmen” than with “the average office worker”).  And as these incidents occurred, Anderson feared confronting Vegtel further or complaining to CRST from the road because she believed that Vegtel, as the “lead driver,” could put her off the truck at any point, leaving her with no means of getting herself back to California.  III‑ER.624.

In concluding that Vegtel’s conduct was not actionable, the district court characterized Anderson’s allegations as based on “two primary incidents”:  Vegtel’s comments regarding women’s breasts and his work in the porn industry,[11] and the hotel incident.  I-ER.24.  By omitting reference to Vegtel’s other stories/comments and his daily habit of keeping his pants unfastened and open, the district court’s analysis failed to account for all of the misconduct that Anderson alleged.  With the record viewed as a whole, Anderson alleges harassment comparable to cases where this Court and other courts have reversed summary judgment.  See, e.g., Burrell v. Star Nursery, Inc., 170 F.3d 951, 953-55 (9th Cir. 1999) (comments about the plaintiff’s body, sexual references, and one instance of touching her breast sufficient to create triable issue of sexual harassment); Royal, 736 F.3d at 403 (collecting cases). 

More significantly, the district court’s analysis failed to acknowledge that all of Vegtel’s conduct occurred in a compressed timeframe and in isolated locations far from the protective presence of CRST managers and supervisors.  By failing to consider the “totality of the circumstances” in all of these respects, the district court wrongly granted summary judgment.  See Harris, 510 U.S. at 23.

The district court further erred in relying on Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), to conclude that the harassment Anderson alleged was not actionable under Title VII.  Brooks does not, as the district court believed, stand for the notion that an employer’s notice of or response to a hostile work environment bears on the antecedent question of whether the harassing conduct was sufficiently severe or pervasive to be actionable.  I-ER.23.  In the passage in Brooks that the district court cited, this Court was focusing on employer liability—an inquiry as to which the employer’s notice and response are relevant—and not severity and/or pervasiveness, which characterize the harassing conduct itself.  Brooks, 229 F.3d at 924.  Brooks’s holding merely reflects this Court’s well-established rule that under a negligence theory—the operative basis for liability for co-worker harassment—an employer that had no advance warning is not liable if it responded as soon as it knew there was a problem and its response remedied the problem fully, as was the case in Brooks.  See id. at 926-27. 

Thus, Brooks is simply inapposite to the question of whether a reasonable jury could find that the series of incidents Anderson alleges here, under the circumstances in which they occurred, made her work environment hostile.  Indeed, this Court expressly acknowledged in Brooks that when harassment consists of a series of incidents, the individual incidents can be less severe and still be actionable under Title VII because of their cumulative effect.  Id. at 927.  Because this Court decided Brooks based on liability rather than severity or pervasiveness, the district court erred when it relied on Brooks to conclude that Anderson did not allege actionable harassment simply because none of the incidents she alleged were as severe as the single incident in Brooks.

Taking Anderson’s evidence as true and considering all of the incidents to which she attested, a reasonable jury could find that the final incident, when CRST forced Anderson and Vegtel to share a hotel room and Anderson awoke to find Vegtel naked and advancing toward her, was simply the last straw in a series of ongoing hostile and demeaning acts.  The fact that Anderson could not remove herself from working alongside Vegtel without abandoning her job, and her fear of being put off the truck by Vegtel, thousands of miles from home, if she objected too much, also served to heighten the hostility of this ongoing conduct.  Given that there is no clear demarcation between what is and is not actionable harassment under circumstances like these, a jury should determine whether Vegtel’s conduct so altered Anderson’s work environment that it became both subjectively and objectively “hostile.”  Schiano, 445 F.3d at 605-06.

II.         A reasonable jury could find that CRST was liable for Anderson’s harassment under Title VII because it failed to take effective remedial action in response to her  complaint.

An employer is liable under Title VII if it knows of co-worker harassment and fails to take “prompt and effective remedial action.”  Westendorf, 712 F.3d at 421; Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995).  CRST’s response to Anderson’s complaint was ineffective under Title VII for at least three reasons:  CRST imposed no discipline on Vegtel; CRST did not tell either Vegtel or Anderson that it took the “remedial” step of barring Vegtel from driving with women; and CRST’s response left Anderson worse off than before. 

“Effectiveness” is “measured by the twin purposes of ending the current harassment and deterring future harassment—by the same offender or others.”  Fuller, 47 F.3d at 1528; see Ellison, 924 F.2d at 881-82 (factor in assessing adequacy of employer’s response is “remedy’s ability to persuade potential harassers to refrain from unlawful conduct”).  A response that ends the harassment but imposes no discipline and does not even tell the harasser that his conduct was unacceptable offers no possibility of deterring future harassment. 

In Ellison, this Court remanded for a determination of whether merely transferring the harasser to another office and telling him not to harass the plaintiff was insufficient because, although it ended the harassment, the employer had neither taken any disciplinary action nor expressed strong disapproval of the misconduct.  Ellison, 924 F.2d at 882-83.  As this Court explained:  “Title VII requires more than a mere request to refrain from discriminatory conduct.… Employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment.”  Id. at 882.  See also Tademy v. Union Pac. Corp., 614 F.3d 1132, 1148-49 (10th Cir. 2008) (employer that imposed no detriment on known harasser “sent a message” that racist expressions “would not be taken seriously”); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 340-44 (6th Cir. 2008) (remedial and corrective action must inform harasser that sexual harassment is not tolerated).  

A jury could find that CRST’s response here was inadequate under Title VII because CRST never disciplined Vegtel in any manner nor even told him that his conduct with Anderson was unacceptable.  Granted, the company barred Vegtel from driving with women.  But that type of internal workforce allocation is not “discipline”; it had no effect on Vegtel’s pay, the number or frequency of his driving assignments, or his ability to be promoted.  (In fact, CRST promoted him to trainer while he was operating under a “no females” restriction.)  CRST claimed it imposed the restriction only “as a precautionary measure,” III‑ER.509-10, and, consequently, HR did not place any written reprimand or warning in Vegtel’s personnel file.  And because Vegtel was completely unaware of the restriction for more than a year, even this non-disciplinary step sent no message to Vegtel that his behavior with Anderson had crossed the line. 

Significantly, CRST’s non-response deviates from Vegtel’s own expectations.  The record demonstrates that by their return trip, Vegtel knew Anderson was upset with his conduct, and he expected to meet with CRST officials upon his return before being given another load to deliver.  See II-ER.319-22.  Instead, CRST immediately sent him on another assignment.  CRST thereafter promoted him to “trainer,” and he continued to drive for CRST for the next several years. 

An anti-harassment policy is effective only if the employer reinforces it with a clear response that tells employees harassing conduct will not be tolerated.  As this Court has stated:  “Employers have a duty to ‘express[] strong disapproval’ of sexual harassment, and to ‘develop[] appropriate sanctions.’”  Fuller, 47 F.3d at 1529 (quoting Ellison, 924 F.2d at 881).  CRST’s failure even to tell Vegtel that his conduct was inappropriate not only fails to deter future misconduct, it actually sends the message that CRST tolerates workplace harassment.  See, e.g., Tademy, 614 F.3d at 1136 (company’s response to racial harassment—“30-day fully paid leave of absence” and mandatory attendance at company-funded out-of-town diversity workshop—was “so ineffective that it became fodder for company humor”; employees joked “if you want a paid vacation all you have to do is call [plaintiff] a boy.”); Hawkins, 517 F.3d at 342-43 (noting employer’s response is adequate when company takes “affirmative steps” such as “counseling harassers,” sending letters to emphasize company’s anti-harassment policy, and threatening discipline for future infractions).    

In addition, CRST’s failure to inform Anderson that it had imposed a “no females” restriction on Vegtel also undermined the remedial effect of this step by depriving Anderson of any reassurance that CRST had remedied the problem.  An employer’s response to a harassment complaint can reassure the complainant that the workplace is now hostility-free only if the complainant knows what response the employer undertook.  Informing the complainant is doubly important because employees often talk to each other about the co-worker conduct they find objectionable and how the company responded to their concerns.  See, e.g., Red Hat, 2012 WL 4903341, at *4 (plaintiff told three other CRST drivers about trainer’s harassing conduct before finally reporting it her dispatcher).  As far as Anderson knew, CRST did nothing in response to her complaint.  Indeed, Anderson would have had no basis to feel reassured even if she received Kircher’s January 21 letter, because the letter was silent on what specific steps CRST took. 

Thus, even assuming arguendo that merely barring Vegtel from driving with women was an appropriate remedy here, a jury could find that CRST materially undermined the remedial effect of that response by failing to inform Anderson that it had taken this step.  See, e.g., Morgan v. CRST Van Expedited, Inc., 2007 WL 402407, at *10 (N.D. Iowa Feb. 1, 2007) (denying summary judgment where plaintiff alleged, among other things, that after she reported her trainer’s harassment, “CRST did not tell her how the company would handle the situation or ask her questions about the incident”); Red Hat, 2012 WL 4903341, at *10 (finding CRST’s corrective action appropriate in part because CRST informed plaintiff that it had barred harasser from driving with females and had disciplined him by placing a written notation in his file). 

Finally, CRST’s response violated Title VII because it left Anderson worse off than before she complained.  See, e.g., Ellison, 924 F.2d at 881-82; Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (6/18/99) at nn.72 & 73 and accompanying text (at http://www.eeoc.gov/policy/docs/harassment.html).  An employer’s response to a harassment complaint is ineffective under Title VII if it burdens the complainant.  Fuller, 47 F.3d at 1529 (harassment must be remedied “through actions targeted at the harasser, not the victim”).  As another district court noted, in denying CRST summary judgment on this ground, “‘[w]here … the employer takes action that puts a stop to the harassment, but in a way that inappropriately forces the plaintiff to bear the costs,’” the plaintiff is entitled to be compensated for her loss in pay and other “‘disamenities of work.’”  EEOC v. CRST, 2009 WL 1783495, at *6 (N.D. Iowa June 18, 2009) (quoting Hostetler v. Quality Dining, Inc., 218 F.3d 798, 811 (7th Cir. 2000)).  See also, e.g., Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (remedial action for sexual harassment inadequate where, rather than change harasser’s shift or work area, employer twice changed plaintiff’s shift to get her away from harasser); Ellison, 924 F.2d at 882 (victim of sexual harassment should not have to work in less desirable location as result of employer’s remedy for sexual harassment); Guess v. Bethlehem Steel, 913 F.2d 463, 465 (7th Cir. 1990) (“[A] remedial measure that makes the victim of sexual harassment worse off is ineffective per se[.]”). 

After Anderson complained, CRST continued assigning work to Vegtel but did not assign Anderson any further work.  Anderson told Stearns she was available on January 6 for a local, single-driver delivery, but Stearns dispatched Vegtel instead, and Vegtel was still driving for CRST at the time of discovery.  Anderson, on the other hand, never received another assignment after January 6.

CRST asserted below that it did not assign Anderson any more loads because she did not contact CRST after Stearns sent her telephone numbers of female drivers in a January 7 email.  But CRST offered no evidence that Anderson actually received this email, and Anderson attested that CRST “knew I wanted a female co-driver before they sent me home.  They never sent me any information … about getting a female driver.”  III-ER.619.

Furthermore, two weeks later Stearns still believed Anderson wanted to continue driving for CRST.  In a January 23 email to Kircher asking about the status of Kircher’s investigation into Anderson’s complaint, Stearns said he understood Anderson was waiting for HR to complete its investigation before returning to work.  III-ER.530.  CRST offered no evidence that Kircher told Stearns she had finished looking into Anderson’s complaint.  But even assuming she did, CRST offered no evidence that Stearns tried to reach Anderson after January 23.  Indeed, beyond his having allegedly emailed Anderson a list of names on January 7, CRST offered no evidence that Stearns did anything specific to assist Anderson in returning to work. 

CRST also offered no explanation for why its HR department sent Anderson’s January 21 letter to an incorrect address in Michigan, when CRST knew (based on its own payroll records) that Anderson was a California resident.  III-ER.768.  Kircher’s letter invited Anderson to contact her if Anderson needed further assistance.  III-ER.513.  Although Anderson never received the letter, she nevertheless called Kircher multiple times to ask about the status of the investigation.  Kircher neither took her calls nor called her back.  Yet the record reflects that Kircher had Anderson’s telephone number, because it appears on the first page of the investigation form that Kircher prepared in response to Anderson’s complaint.  II‑ER.339.  A jury could find, from all of this evidence, that CRST inexcusably dropped the ball after Anderson complained, by inexplicably sending her a letter to the wrong address, ignoring her calls, and thereafter taking no further steps to try to get Anderson back to work.

In sum, a reasonable jury could find that CRST’s response to Anderson’s complaint was ineffective, in violation of Title VII, because although CRST barred Vegtel from driving with females, CRST failed to discipline him, failed to tell Anderson what it did to remedy the harassment, and left Anderson worse off by giving her no more driving assignments.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s grant of summary judgment to CRST and remand this matter for further proceedings.

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

s/Susan R. Oxford

SUSAN R. OXFORD

ELIZABETH E. THERAN

Attorneys

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

 

 

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,984 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

 

Dated: December 22, 2015

CERTIFICATE OF SERVICE

I, Susan R. Oxford, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 22nd day of December, 2015.  I further certify that, upon notification from the Clerk’s Office that the brief has been accepted, I will file an original and seven (7) copies of the foregoing brief with the Court by next-business-day delivery, postage pre-paid.  I also certify that all counsel of record are registered CM/ECF users of this Court and that service will be accomplished by the appellate CM/ECF system on December 22, 2015.

 

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791