Nos

INTRODUCTION

When EEOC filed suit alleging that CRST failed to protect Monika Starke and other female employees from harassment, I-Apx.35-36¶¶7,8, EEOC did not know how many women were affected by this practice. Using discovery tools available to all litigants, EEOC identified 254 women it alleges were sexually harassed by their male trainers or co-drivers. A-40. This number was far larger than the number known to EEOC at the time it ended conciliation, and there is some truth to CRST’s and the district court’s characterization of the size of the class of harassment victims as a “moving target.” A-56; CRST Brief (CRST-Br.) 21-22. The target moved, however, for three obvious reasons flowing from CRST’s conduct: (1) during EEOC’s investigation, CRST understated the number of women who had complained about harassment in 2005, see EEOC Opening Brief (EEOC-Br.) 7-14;16; (2) CRST declined the opportunity to work with EEOC during the conciliation phase of the administrative process to identify other harassment victims and to improve its anti-harassment efforts, id. at 17-18; and (3) women continued to be sexually harassed after EEOC filed this lawsuit, e.g. id. at 41-47; A-265 (district court found 27 women experienced actionable harassment after EEOC issued its cause determination).

EEOC has not “abandoned,” “waived,” or “conceded” the “claims” of 202 women, as CRST erroneously asserts throughout its brief. CRST-Br. 1;29;36;47-49;53;83;86. EEOC’s lawsuit contains just one claim of harassment of a class of women. I‑Apx.35-36. EEOC sought relief below for 154 women who were deposed by the end of discovery. EEOC now appeals the district court’s dismissal, imposition of fees, and other rulings curtailing EEOC’s ability to seek relief for 107 of these women—the 67 women who were the subject of the district court’s final Order to Show Cause ruling (who, the district court ruled or CRST conceded, otherwise were subjected to actionable sexual harassment), and 40 additional women for whom the court ruled, on various grounds, EEOC may not seek judicial relief.[1]

In addition to being confused about the number of women involved in this appeal, CRST is confused about the effect of EEOC’s decision not to appeal the court’s pattern-or-practice ruling, repeatedly suggesting EEOC has thereby waived arguments or conceded facts. CRST-Br. 27;30;32;51-52. No such waiver or concession has occurred. EEOC’s intent when it sought to litigate this case under the pattern-or-practice method of proof was to show it was CRST’s consistent practice to respond ineffectively to employees’ complaints of sexual harassment. The district court was persuaded, however, that a “pattern-or-practice” showing required EEOC to demonstrate that some unspecified number (but more than 154) of female trainees and drivers had experienced harassment. By focusing on the number of harassment victims compared to the number of women in CRST’s workforce, the court rejected EEOC’s view that CRST’s pattern of response to those complaints constituted the actionable “pattern or practice” of violating Title VII, and held that the evidence could not support a finding that it “is CRST’s ‘standard operating procedure’ to tolerate sexual harassment” of its female drivers. A-101 (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)).

The court’s rejection of EEOC’s view of “pattern-or-practice” and the attendant “bifurcated” trial framework does not impact the legal and factual issues EEOC raises on appeal, because the court’s ruling does not bear on EEOC’s ability to prove that individual women were subjected to actionable harassment, as the district court recognized. A-101;111. See also Cooper v. Fed. Reserve Bank, 467 U.S. 867, 877-78 (1984) (recognizing there can be valid individual claims despite rejection of claim of classwide pattern or practice of discrimination).

After the district court rejected the pattern-or-practice evidentiary framework, it turned to CRST’s summary judgment motions and examined the parties’ presentation of the evidence concerning the circumstances of individual victims of harassment. Once the case was dismissed in its entirety, it was reasonable for EEOC to conclude that it was not necessary to challenge on appeal the court’s initial bifurcation and pattern-or-practice rulings. Cf. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983) (in individual disparate treatment case, once employer has proffered evidence of a non-discriminatory reason for its decision, litigants should not debate whether elements of a prima facie case have been established; at that point, focus of inquiry should be on “discrimination vel non”).

If this Court agrees that EEOC satisfied Title VII’s pre-suit conditions and that there are factual issues for trial on the harassment experienced by individual women, the case can be tried in a unified proceeding that will determine the same basic issues and entitlement to relief that would have been explored in the bifurcated pattern-or-practice proceeding EEOC originally envisioned. Thus, EEOC’s decision not to appeal the pattern-or-practice ruling represents not a concession that its claim that CRST failed to prevent and correct widespread sexual harassment lacks foundation, but a realistic assessment that EEOC can achieve its intended goals of reforming CRST’s harassment procedures and securing relief for individual victims of harassment through the unified evidentiary framework still available in this case. See Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (Title VII’s primary objective is “to avoid harm,” which, in the harassment context, means “‘to prevent sexual harassment from occurring.’”) (citations omitted).

ARGUMENT

I. EEOC Satisfied All Pre-Suit Requirements and preserved all SUCH arguments.

A. EEOC properly investigated, found cause, and failed conciliation.

CRST and Amici argue that before EEOC can file a lawsuit seeking company-wide injunctive relief to prevent future sexual harassment and monetary relief for individual harassment victims, EEOC must: identify each victim during the administrative process; investigate her individual allegations; issue an individual reasonable cause determination; and offer the respondent an opportunity to resolve her particular allegations in conciliation. CRST-Br. 27-28; Amici-Br. 13-18. Not surprisingly, CRST and Amici offer no citation to any authority suggesting such a rule, because there is none.

In General Telephone Company v. EEOC, the Supreme Court stated: “EEOC need look no further than § 706 [of Title VII] for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” 446 U.S. 318, 323-24 (1980). Section 706 of Title VII expressly authorizes EEOC to file an enforcement action against “any respondent … named in [a] charge” when EEOC has been unable to secure, from that respondent, a conciliation agreement acceptable to EEOC. 42 U.S.C. § 2000e-5(f)(1).[2] EEOC was unable to secure a conciliation agreement from CRST here. CRST initially expressed interest in conciliating EEOC’s reasonable cause determination that CRST’s conduct affected a number of women, and EEOC’s investigator explained the relief EEOC sought, but CRST ended the conciliation process because of a separate “monetary demand made by Ms. Starke’s attorney,” wholly unrelated to EEOC’s efforts to resolve the class claim. EEOC-Br. 17-18;59-63; VII-Apx.1897-1900. If a respondent rejects EEOC’s conciliation offer, EEOC “is under no duty to attempt further conciliation.” EEOC v. Keco Indus., 748 F.2d 1097, 1101-02 (6th Cir. 1984). Since EEOC informed CRST of the nature of the violation and what EEOC sought to resolve the violation voluntarily, and CRST informed EEOC that it was no longer interested in exploring conciliation, EEOC’s efforts fully satisfied the statutory pre-conditions to suit.

A number of courts have expressly stated or held that EEOC is not limited to seeking relief for only those individuals identified during the administrative process. See EEOC-Br. 63-66. In EEOC v. Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989), for instance, the Third Circuit affirmed a district court’s rejection of the argument that class allegations of age discrimination should be dismissed because “specific conciliation did not occur as to each potential member of the class.”[3] Id. at 17, aff’g 677 F. Supp. 264, 265-66 (D.N.J. 1988). Noting that the defendant did not assert EEOC had failed to tell it how it could come into compliance on the class claim, the district court in Rhone-Poulenc said, “As long as the EEOC made an attempt to conciliate, ‘the form and substance of those conciliations [are] within the discretion of the EEOC.’” 677 F. Supp. at 266 (citation omitted). Affirming what it described as a “not-so-novel” issue, the Third Circuit confirmed there is no requirement that EEOC attempt to conciliate on behalf of each potential class member. 876 F.2d at 17.

The district court in Dinkins v. Charoen Pokphand USA, Inc., applied this same principle to an EEOC lawsuit alleging class-wide sexual harassment and gender discrimination. 133 F. Supp. 2d 1237, 1244-46 (M.D. Ala. 2001). The court expressly rejected the defendant’s argument that EEOC must conciliate each employee’s individual Title VII claim, noting the argument has been “universally rejected” in EEOC lawsuits under the ADEA. Id. at 1245-46 (what matters is that EEOC gave respondent “notice that it was investigating possible discrimination against a class of women” which “led to an attempt to conciliate on behalf of an entire class”). The court concluded it would be “‘wasteful, if not vain, to attempt to conciliate the claims of numerous employees, all with the same grievance’” since, “‘[i]f it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful.’” Id. at 1246 (citations omitted).

Conciliation of a class claim is adequate—even without identifying all aggrieved individuals—if the respondent is aware of the nature and scope of the alleged violation, and this rule provides respondent employers with all of the procedural protections Congress contemplated under Title VII. See Keco, 748 F.2d at 1100-01; EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1184-86 (4th Cir. 1981). Title VII limits EEOC’s litigation to those claims that were included in the reasonable cause determination and addressed in conciliation. Thus, EEOC may not litigate claims involving different types of discrimination (e.g., failure to hire rather than harassment) or a broader scope of discrimination (i.e., regional versus national) than reflected in the determination and conciliation. But it may seek relief for additional victims who experienced the same type of discrimination addressed in the investigation, reasonable cause determination, and conciliation process. Keco, 748 F.2d at 1100-01; Am. Nat’l Bank, 652 F.2d at 1185-86.

The district court’s contrary rule would subvert Title VII’s enforcement goals and the intent of Title VII’s pre-suit requirements. A requirement that all victims be identified before filing suit would mean that the more widespread the discrimination within a particular company, the less able EEOC would be to enforce Title VII. EEOC’s hands would be tied, even if it had reasonable grounds to believe a particular discriminatory practice (like CRST’s failure here to take appropriate action in response to its knowledge of sexual harassment) is ongoing and affects a large number of employees, and even if a respondent (like CRST here) unequivocally rejected EEOC’s invitation to correct the violation voluntarily. EEOC could seek judicial relief only for individuals EEOC had identified, separately investigated, and individually conciliated, imposing considerable delay on any EEOC enforcement action.

Moreover, if new victims surfaced during the litigation—because, for example, the employer (like CRST) provided misinformation to EEOC’s investigator—EEOC could not secure relief for those victims without first restarting the administrative process, even if the employer’s own conduct was what had prevented EEOC from discovering those victims sooner. If the employer continued to discriminate, those new victims would have to be addressed in a separate lawsuit, after a separate investigation and conciliation, even if their allegations raised common issues and the events occurred during the same timeframe. It would also mean that an employer could essentially halt EEOC legal proceedings by providing EEOC with incomplete information during the investigation, not telling EEOC it is incomplete, and then surprising EEOC later with the news that relevant information had been hidden from EEOC during administrative proceedings.

As explained in EEOC’s opening brief and above, EEOC met Title VII’s statutory pre-suit requirements here. At every step in this administrative process, EEOC’s conduct put CRST on notice that EEOC was investigating whether, and had found reasonable cause to believe that, CRST was liable for sexual harassment of women other than Starke. EEOC observed in its opening brief that the district court reached its contrary conclusion about the adequacy of the pre-suit proceedings based, in part, on several factual errors. EEOC-Br. 61-62. CRST’s brief includes the same factual errors.

For example, CRST asserts that EEOC limited its administrative investigation to Starke’s allegations. CRST-Br. 14 (“EEOC advised CRST that the investigation was limited to an eleven-month period” from January 2 to November 2, 2005; and “[t]he scope of EEOC’s investigation was focused on Starke and not on other women”) (citing A-238). CRST ignores three record facts: (1) EEOC, in its first Request for Information (RFI), asked CRST whether other women, besides Starke, had complained to CRST about sexual harassment, (2) EEOC later expanded its investigative focus beyond 2005 when it asked for copies of other sexual harassment charges filed against CRST and discussed the harassment experiences of other trainees since 2005, VIII-Apx.2000;2068-69, and (3) in March 2007 EEOC requested information concerning all female trainees and drivers employed by CRST from January 1, 2005, to that date. EEOC-Br. 7-8;16-17; CRST-Br. 16-17.

CRST also asserts that it provided all the information EEOC sought in its first RFI. CRST-Br. 14 (citing A-239). This ignores Barnes’s admission, during his deposition, that he provided inaccurate information to EEOC about the number of other women who had complained of sexual harassment to CRST. When EEOC asked who else had complained of harassment between January 2 and November 2, 2005, Barnes provided the names of only two women. VII-Apx.1914;1916. Barnes later admitted that CRST’s records, which he maintained as HR Director, show there were “many more than two complaints of sexual harassment” during the relevant time. XIX-Apx.5037-38. In fact, the Positive Work Environment (PWE) Chart shows that CRST had received at least 40 sexual harassment complaints during the first ten months of 2005—yet Barnes told EEOC that there were only two during this period. See EEOC-Br. 16.

Additionally, CRST contends that EEOC “entered into conciliation on Starke’s claim without having investigated, evaluated, or identified any class” and that EEOC’s conciliation discussion with CRST was really a “pre-investigation settlement” offer. CRST-Br. 44. True, EEOC did not know the number or identities of the women it later learned had been sexually harassed while driving for CRST, but that did not make EEOC’s reference, in the reasonable cause determination, to a “class of employees and prospective employees” “pretextual,” as CRST asserts (CRST-Br. 43-44), because EEOC had a reasonable basis for believing that women other than Starke were harassed. Although CRST contends EEOC admitted it did not investigate the “class” before attempting to conciliate the class violation, id. at 44, this reflects the basic disagreement at issue here—whether the conclusion that a group of people have likely been subjected to discrimination can only be drawn after identifying and interviewing every potential member of that group. EEOC expected victims to be identified during the conciliation process so appropriate relief could be afforded. But CRST chose to end conciliation efforts because of Starke’s separate monetary demand, so victims were not identified until discovery in the lawsuit.

This case is wholly unlike EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982), on which CRST relies. CRST-Br. 44-45. There, EEOC had entered into a lawful pre-determination settlement agreement with Pierce Packing based on the Department of Labor’s investigation. 669 F.2d at 606. When an employee later reported that Pierce Packing was not complying with the settlement agreement, EEOC sought to bring a Title VII sex discrimination suit predicated on the breach of the agreement, but without ever investigating the underlying facts, issuing a reasonable cause finding, or engaging in conciliation. Id. at 607. The Ninth Circuit ruled that the statutory conditions precedent to suit must be satisfied where the action challenging a breach of settlement is “a suit to cure alleged unlawful employment practices,” and that EEOC cannot “leapfrog[]” over Title VII’s pre-suit requirements. Id. at 608-09. The question in Pierce Packing was not whether EEOC had fully identified or defined the affected class members, but whether EEOC had embarked on any investigation at all, and the answer was “no.” Pierce Packing does not apply here, because in this case EEOC served a charge on CRST, investigated for 18 months, issued a reasonable cause determination that included a “class” claim, and then offered CRST the opportunity to conciliate that claim. Under these circumstances, EEOC’s offer to CRST to conciliate its reasonable cause finding was not a pre-determination settlement offer, regardless of whether CRST questions the thoroughness of EEOC’s non-justiciable investigation or the justification for EEOC’s cause determination.

B. EEOC’s decision not to appeal the court’s pattern-or-practice ruling does not “waive” its argument that it satisfied Title VII’s pre-suit requirements.

The authority to seek relief for a group of aggrieved individuals is neither limited to, nor dependent on, EEOC’s assertion of a pattern-or-practice claim. Here, EEOC did not investigate individual allegations or issue individualized reasonable cause determinations for individuals whose identities were discovered after filing this class harassment suit. CRST contends that, with respect to these women, EEOC’s ability to show it satisfied Title VII’s pre-suit requirements is “foreclosed” by EEOC’s “decision not to appeal … the district court’s pattern or practice ruling.” CRST-Br. 32-33. To the contrary, since EEOC found “class-wide” discrimination in the reasonable cause finding and offered CRST an opportunity to resolve that class claim voluntarily, pre-suit requirements have been met, and the “pattern-or-practice” ruling is irrelevant in this regard.[4]

EEOC’s decision not to appeal the district court’s pattern-or-practice ruling has nothing to do with EEOC’s substantive argument that its pre-suit conduct satisfied Title VII’s requirements with respect to all of the women who are the subject of EEOC’s appeal. Since EEOC has never contended that the adequacy of conciliation turned on the existence of a pattern-or-practice claim, the waiver doctrine is inapplicable.[5]

More substantively, CRST argues that the “pattern-or-practice” form of proof is significant here because, without that claim, “there is no basis for any … factual connection among the individual claims … other than in each case a female driver alleges sexual harassment by a male driver.” CRST-Br. 33 (citing EEOC v. Delight Wholesale, 973 F.2d 664, 668 (8th Cir. 1992)). In Delight Wholesale, EEOC sought relief for a single female employee alleging constructive discharge and wage discrimination based on a charge that alleged only demotion based on sex. Id. at 667-68. This Court held that EEOC could assert these additional claims in its lawsuit because they were included in the reasonable cause determination and subject to a conciliation proceeding. Id. at 668-69. Neither the facts nor this Court’s reasoning in Delight Wholesale supports CRST’s contention that, absent a “pattern-or-practice” claim, EEOC cannot maintain a lawsuit on behalf of a group of aggrieved individuals.

CRST argues that EEOC cannot challenge the harassment in this case in a single, unified lawsuit because, according to CRST, there is no evidence of a “common practice” and “each alleged individual claim turns on its own facts involving different female drivers, different alleged harassers, different trucks, and different alleged misconduct.” CRST-Br. 32-33; see also id. at 41-42 (each woman’s allegations of sexual harassment are “distinctly different and unrelated”). This argument is legally and factually insupportable.

EEOC’s authority to bring a lawsuit on behalf of multiple victims is not limited to situations where the victims’ allegations are identical or virtually identical. See General Telephone, 446 U.S. at 330-31 (Title VII does not require EEOC to meet the requirements for a Rule 23 class action, including the requirements of “commonality” and “typicality”). The Court explained that EEOC, in executing its role “to advance the public interest in preventing and remedying employment discrimination,” is free to bring lawsuits on behalf of multiple aggrieved individuals who may have not only diverse claims, but even competing interests. Id.

In any event, the harassment experiences of these women are factually connected here, not by the harassment each woman endured at the hands of different trainers and co-drivers, but by the inadequacy of CRST’s responses to their complaints. Under the theory of co-worker harassment that the district court applied, CRST’s liability for a Title VII violation hinges not on what individual harassers did, but what CRST failed to do when it received actual or constructive notice of the problems experienced by these 107 women, i.e., the company failed to take effective action to redress existing harassment and prevent future harassment. See Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir. 2007) (employer liable even though harassing acts were committed by different harassers at different times in different units within the company, reasoning that identity of harassers does not matter because the “entity responsible for complying with Title VII is the employer” and the employer is liable based on its failure to respond properly).

Under CRST’s unified system for addressing harassment complaints, all complaints are reported to the HR Department, where two CRST officials (HR Director Barnes and his assistant, Lisa Oetken) are solely responsible for investigating complaints, determining appropriate consequences, and implementing CRST’s response. The fact that harassment, to be actionable, must also be subjectively unwelcome and objectively severe or pervasive, simply means there are additional elements of proof EEOC must establish with respect to each individual before she can receive relief, no different from the proof of qualifications or job vacancy, for instance, that EEOC would have to present to obtain relief for a claimant in a hiring case. See Teamsters, 431 U.S. at 359-60& n.45. The existence of proof elements that may differ for each claimant does not undermine the otherwise-unified nature of these common harassment claims.

CRST attempts to distinguish the authorities EEOC cited in arguing that an individual’s charge can support an EEOC class lawsuit. CRST believes the cases illustrate the necessary “unifying characteristic” required before EEOC can use an individual charge as a springboard for a lawsuit on behalf of multiple individuals. See CRST-Br. 41-42 (citing Keco, 748 F.2d at 1098 (pay discrimination); EEOC v. David Lerner Assoc., 2005 WL 2850080, *3 (D. Conn. Oct. 27, 2005) (sexual harassment); EEOC v. Calif. Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1271-73 (E.D. Cal. 2009) (same); Dinkins, 133 F. Supp. 2d at 1245-46 (same)).[6] CRST argues that in each of these cases, “EEOC satisfied its obligation to investigate and determine reasonable cause of the practices it intended to challenge and provided the employer with an opportunity to conciliate all claims that were included in EEOC’s subsequent lawsuit.” Id. at 42.

But, as EEOC initially argued, these cases are no different from the present case in this respect. See EEOC-Br. 60;63-64. In each case, EEOC issued a reasonable cause determination—as it did here—finding that the employer’s actions subjected additional women, besides the charging party, to sexual harassment (or pay discrimination). In each case, EEOC offered the employer—as it offered CRST—an opportunity to resolve the class violation voluntarily. In each case, the courts implicitly or explicitly held there was no obligation to identify class members during conciliation. The fact that a greater number of aggrieved individuals was identified in this case than in the cases CRST attempts to distinguish provides no basis for a different outcome. As the Sixth Circuit aptly noted, “[i]n this case, the class-based claim is basically the same as Ms. Grimes’ claim; only the number of plaintiffs has changed.” Keco, 748 F.2d at 1102. Here, as in those cases, EEOC’s pre-suit conduct sufficed to litigate a class claim seeking relief for individuals who had not been identified during the administrative process. Where, as here, EEOC’s lawsuit alleges the same type of discrimination and same scope of violation as was investigated and reflected in the reasonable cause determination and conciliation process, EEOC is free to pursue relief for multiple aggrieved individuals in the same lawsuit.

C. EEOC did not waive its appeal from the Order to Show Cause Ruling.

CRST argues that the district court, in addition to finding EEOC’s conciliation efforts inadequate, also found “that EEOC failed to satisfy the two companion statutory obligations of investigation and finding reasonable cause before filing suit.” CRST-Br. 38. Because, in CRST’s view, EEOC failed to address these failures in its opening brief, CRST believes that these contentions provide an independent basis for affirmance of the district court’s dismissal of the case and that EEOC has waived any argument to the contrary. Id. at 37-39. This argument makes little sense legally or factually.

Under § 706(f)(1), EEOC’s inability to secure an acceptable conciliation agreement is the statutory pre-requisite to an EEOC lawsuit. See 42 U.S.C. § 2000e-5(f)(1); see also 29 C.F.R. § 1601.27 (“The Commission may bring a civil action against any respondent named in a charge … unless a conciliation agreement acceptable to the Commission has been secured.”). When Congress created EEOC in 1964, it directed EEOC, in § 706(b), to investigate charges, issue determinations, and offer respondents an opportunity for voluntary compliance. 42 U.S.C. § 2000e-5(b). When Congress amended Title VII in 1972 to give EEOC litigation authority under § 706(f)(1), Congress preserved EEOC’s prior administrative functions, but did not require EEOC to investigate for a certain period of time nor to issue a reasonable cause determination of any particular level of detail or certainty before filing suit. Nor did Congress impose the standards of criminal justice—it required only “reasonable” cause, not “probable” cause—for making a cause determination. Congress imposed only one condition before EEOC could file a lawsuit—EEOC’s inability to secure a conciliation agreement acceptable to EEOC. See Am. Nat’l Bank, 652 F.2d at 1185 (“Conciliation, the final step in the [EEOC administrative] process, can … be regarded as a condition precedent to the EEOC’s power to sue.”) (citations omitted). To the extent the district court criticized EEOC’s investigation and cause finding, it could not have intended to suggest these perceived inadequacies could provide independent grounds for dismissal.

CRST’s and Amici’s mischaracterization of EEOC’s pre-suit requirements flows from the erroneous belief that respondents can challenge, and courts can review, not just whether EEOC issued a cause determination and conducted conciliation on the same claims it asserts in a lawsuit, but also whether EEOC’s investigation was, in some abstract sense, adequate. See, e.g., Amici-Br. 15-17. Since EEOC’s administrative findings do not determine any parties’ rights but simply offer parties an opportunity for voluntary resolution, Title VII does not permit challenges to the adequacy of any of EEOC’s preceding administrative steps. See EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (whether EEOC investigation supports EEOC’s reasonable cause finding is not judicially reviewable); Georator Corp. v. EEOC, 592 F.2d 765, 767-68 (4th Cir. 1979) (EEOC reasonable cause finding not judicially reviewable under either Title VII or Administrative Procedures Act because it is nonadjudicative).

For these reasons, the district court’s comments about the EEOC’s investigation and reasonable cause determination cannot constitute independent grounds for dismissing EEOC’s lawsuit, and nothing in the district court’s decision supports the interpretation CRST urges. Rather, the court’s discussion of “investigation” and “cause determination” was part of its single, unified ruling that EEOC did not satisfy Title VII’s administrative pre-requisites, a ruling that EEOC clearly challenged in its opening brief. For example, EEOC addressed the administrative steps that precede conciliation because they are all part of the same integrated process. See, e.g., EEOC-Br. 7-8 (during investigation of Starke Charge, EEOC asked CRST if other individuals had complained about sexual harassment); 16-17 (EEOC expanded investigation of Starke charge to encompass other trainees; later, EEOC further broadened the investigation to include inquiries about co-drivers); 59-67 (explaining, inter alia, that EEOC’s investigation of the Starke charge and resulting reasonable cause determination and conciliation satisfied the statutory prerequisites for filing suit on behalf of additional women).[7]

Thus, EEOC’s opening brief explained that EEOC’s questions, during the investigation, apprised CRST that it was investigating whether other women had also experienced sexual harassment; EEOC’s reasonable cause determination expressly found class-wide discrimination; and EEOC invited CRST, during the conciliation process, to resolve these class claims. Against this factual back-drop, EEOC’s opening brief argued that the district court erred in concluding that EEOC did not satisfy Title VII’s pre-suit requirement. EEOC did not waive this argument. Even if the argument about the sufficiency of the investigation and reasonable cause determination were viewed as waived, it could not possibly constitute an independent basis for affirmance if this Court believes EEOC’s conciliation efforts were sufficient. Since the conciliation flows from the cause determination, which captures the information from the investigation, these prior steps in the administrative process cannot be regarded as “independent” in the sense of providing a separate basis for affirming dismissal of EEOC’s harassment suit.

D. EEOC did not shift its pre-suit obligations to CRST.

CRST, having misled EEOC’s investigator on a crucial aspect of EEOC’s investigation, now seeks to shift blame for the result onto EEOC. Title VII authorizes EEOC to investigate charges by requesting information, as EEOC did here at the outset of its investigation and throughout the ensuing months. See, e.g., VII-Apx.1912-1914 (EEOC’s first RFI). Although EEOC is authorized to issue subpoenas for the production of documents and disclosure of information (CRST-Br. 46-47&n.10), EEOC typically uses its subpoena authority when an employer refuses to provide requested information. If an employer responds to EEOC’s request for information, as CRST did here, and if nothing on the face of the response indicates it is false or incomplete, EEOC would generally have no reason to employ its formal subpoena powers.

When EEOC began investigating Starke’s charge, it asked CRST, in EEOC’s first formal Request for Information (RFI), whether, for the period from January 2 to November 2, 2005, “any other individual has complained to any supervisor or manager concerning the conduct described in the Charge of Discrimination.” If the answer was yes, the RFI asked CRST to identify the complainant, list any actions taken in response to the complaint, and “[p]rovide a copy of any written document which reflects the complaint and the action taken as a result of the complaint.” VII-Apx.1914 (EEOC RFI #3 (Issue: Harassment)). CRST’s formal response to this and EEOC’s other initial requests totaled over 50 pages. See VII-Apx.1915-66. In response to this specific RFI, HR Director Barnes provided EEOC with the names of two women who had also filed EEOC charges alleging sexual harassment: Lori Essig and Tamar Thiel. VII‑Apx.1916.

Barnes later disclosed that he knew, when he provided that information, that CRST had received complaints from many other women. XIX-Apx.5037-38. Indeed, the records that Barnes maintained as HR Director reveal that he had received sexual harassment complaints from at least 40 women during the specified time. A-317. There is a ten-fold difference between what Barnes told EEOC—four sexual harassment complaints in ten months, or one complaint every two-and-a-half months—versus the 40 complaints Barnes had actually received during that time, or an average of approximately one complaint per week. The information Barnes withheld from EEOC at this early stage in EEOC’s investigation—that at least another 38 women had complained to CRST of harassment during the first ten months of 2005—would have likely made a significant difference in the focus of EEOC’s investigation.

When asked why he had misrepresented the number of complaints, Barnes had no explanation. XIX-Apx.5038. CRST now tries to excuse his misstatement by characterizing it as merely an “informal response” or the result of an “informal discussion,” asserting that if EEOC was not satisfied with the response it could have employed more formal investigative powers. See CRST-Br. 46-47. There are several flaws in this argument. First, identifying “two” women when there were really “40” is a serious misrepresentation, whether formal or informal. Second, characterizing the response as “informal” defies understanding given Barnes provided the two names in CRST’s larger response to more than a dozen EEOC questions, VII-Apx.1912-14, and CRST’s response comprised approximately 50 pages of documents, including a three-page “position statement” with 15 attached exhibits. See VII-Apx.1915-66. Finally, EEOC had no reason to know it should be dissatisfied with Barnes’s response—nothing on the face of the response suggested the information was incomplete by a factor of ten. CRST’s continued efforts here to obfuscate these facts illustrates the same diversionary tactic it employed during the investigation, rather than cooperating with EEOC in an effort voluntarily to resolve the violation EEOC identified in the reasonable cause determination.

E. The district court abused its discretion in declining to stay the lawsuit to permit further conciliation.

CRST misconstrues Title VII when it argues the district court did not abuse its discretion by failing to stay this matter to permit additional conciliation. CRST-Br. 48-50. CRST suggests a stay is not a viable option because “[i]t would have been impossible for the district court to restore the status quo before this suit was filed.” CRST-Br. 48. If that were the criterion, however, the Title VII provision that permits a stay for further conciliation, 42 U.S.C. § 2000e-5(f)(1), would be mere surplusage. It is not—by its terms, a court can permit the parties to explore voluntary resolution, if the defendant employer wishes to put an end to litigation. CRST suggests this would entail reopening EEOC’s investigation (CRST-Br. 48), but that is not true. Conciliation and investigation are distinct administrative steps, and resuming conciliation discussions in no way requires the reopening of an investigation. CRST is also wrong to the extent it argues Congress did not intend to give EEOC a second chance to conciliate. Id. That, in fact, is exactly what this provision is designed to accomplish.

II. THE DISTRICT COURT’S RULINGS AS TO INDIVIDUAL WOMEN MISAPPLY SUMMARY JUDGMENT AND SEXUAL HARASSMENT STANDARDS.

A. The district court’s pattern-or-practice ruling has no bearing on CRST’s liability for harassment experienced by individual women.

The district court’s “pattern-or-practice” ruling has no substantive effect on EEOC’s claim for relief for 107 individual women. CRST’s contrary contentions (CRST-Br. 6-7;30-32;34-35) do not withstand scrutiny. CRST argues that the district court, in dismissing EEOC’s “pattern or practice claim,” “held that CRST’s anti-sexual harassment policy and enforcement practices satisfy Title VII requirements.” CRST-Br. 6 (citing A-101-02). CRST further argues that EEOC’s failure to appeal the court’s pattern-or-practice ruling binds EEOC to this underlying factual finding under “law of the case” or direct estoppel. Id. at 6-7&nn4&5. CRST, however, misstates what the district court found in the pattern-or-practice ruling. In any event, because EEOC offered the same evidence to support its claim for relief for individual women and has appealed the court’s rejection of the sufficiency of that evidence to establish CRST’s liability in individual cases, “law of the case” is inapplicable.

The district court did not find that CRST’s anti-harassment practices satisfy Title VII, as CRST contends. CRST-Br. 6;51. Rather, the court expressly found that CRST’s responses did not always protect its female drivers from sexual harassment. The court found that sometimes dispatchers and other CRST managers did not follow the company’s established procedures, A-92-95, and stated that the occasions when CRST’s managers “failed to deal appropriately with female drivers’ complaints of sexual harassment … may subject CRST to liability as to individual women at trial.” A-101.

Indeed, after examining all of the summary judgment evidence, the court denied summary judgment as to 34 individuals, A-197;A-207-10;A-219-20;A-232-34), and ultimately determined (or CRST conceded, by not moving for summary judgment) that a jury could find CRST liable in 67 instances in which women drivers experienced sexual harassment that was “severe or pervasive” and, despite notice, CRST failed to take proper preventive or remedial steps. See A-272 (characterizing allegations of 67 remaining women as “potentially meritorious”). The findings in the district court’s pattern-or-practice ruling are consistent with EEOC’s claim, on appeal, that CRST is liable in individual instances for failing to protect female drivers from sexual harassment.

It is true, as CRST asserts (CRST-Br. 52n.13), that EEOC offered essentially the same evidence to establish both the “pattern-or-practice” liability theory and the “constructive notice” liability theory. See, e.g., R.162,pp10-19. Litigants can offer the same evidence to support more than one legal theory. See Teamsters, 431 U.S. at 335 n.15 (either disparate treatment or disparate impact theory may be applied to a particular set of facts). If the district court’s factual findings in the pattern-or-practice decision foreclosed EEOC’s claim for relief for individuals, the court would not have stated, as it did, that its pattern-or-practice ruling did not resolve any issues as to CRST’s liability in individual instances. A-111 (“Nothing in this opinion … should be construed as a final ruling on the individual claims of sexual harassment that the EEOC presses in this action.”). Ultimately, the court did issue final rulings on the individual claims, and EEOC has appealed those rulings, so EEOC has not waived any challenge to the court’s conclusions that CRST is not liable based on this evidence.

The “law of the case” and “direct estoppel” doctrines (CRST-Br. 52n.13) have no relevance here. “Law of the case” applies “‘when a court decides upon a rule of law.’” Little Earth of the United Tribes v. HUD, 807 F.2d 1433, 1441-42 (8th Cir. 1986) (quoting Arizona v. California, 460 U.S. 605, 618 (1983) (emphasis added)). “Direct estoppel” applies when a court decides a claim or issue in a case and no available appeal is taken. Krone v. Lacy, 305 F.2d 245, 246 (8th Cir. 1962). Neither doctrine applies to the summary judgment facts EEOC offered in opposition to both the pattern-or-practice and individual summary judgment motions.

The only unappealed ruling that is “law of the case” here is the court’s holding that “EEOC has not established a pattern or practice of tolerating sexual harassment” and, therefore, EEOC will not be permitted to use the pattern-or-practice “burden-shifting framework at trial.” A-111. In the same decision, the court also held: “At trial, the EEOC may be able to prove CRST is liable for sexual harassment as to individuals and obtain the equitable and other relief it seeks on their behalf.” Id.

B. The district court erred in barring EEOC from seeking relief for 39 victims of harassment who allegedly complained too late.

EEOC’s opening brief noted that CRST received sexual harassment complaints from female drivers at an average rate of approximately one per week for the four-year period covered by EEOC’s lawsuit. EEOC argued that CRST’s actual knowledge of these complaints had two separate but related legal effects. First, these ongoing complaints gave CRST actual notice that its current response—separating a woman from one particular harasser and giving that harasser a verbal warning or, occasionally, a six-month “no females” designation—was not preventing harassment; under Title VII, that knowledge obligated CRST to implement additional measures more likely to prevent future harassment. Second, these ongoing complaints placed CRST on constructive notice that, absent additional preventive measures, women would continue to be harassed, which they were. Thus, EEOC argued that the district court erred when it ruled no reasonable jury could find CRST liable, under a combined “actual notice/constructive notice” theory, for the harassment of 39 women who complained to CRST as they were extracting themselves from the harassing situation or once safely removed, because CRST’s actual knowledge of past harassment complaints gave it constructive knowledge that harassment like this would continue. See EEOC-Br. 78-86 (citing, among other cases, Sandoval v. Am. Bldg. Maint. Indus., 578 F.3d 787, 801-03 (8th Cir. 2009)).

CRST argues that it cannot be held liable if a woman reported ongoing harassment to another CRST employee rather than to a dispatcher or CRST manager, or if a woman informed her fleet manager she was having problems with her lead driver but did not specify “sexual harassment.” See CRST-Br. 57-58 & nn17&18. CRST misses the point of EEOC’s constructive notice argument. EEOC’s opening brief explained the impediments various women faced in attempting to report harassment, including inability to use Qualcomm because a trainer had refused to teach it to the female trainee he was harassing, or inability to report harassment due to a harasser’s controlling behavior and the trainee’s fear of the consequences if her harasser found out. E.g. EEOC-Br. 20;47-53. Nevertheless, each of these 39 woman eventually told someone at CRST, either as the harassment was occurring or after she was safely removed. As a result, CRST was armed with the knowledge it needed to take appropriate steps to prevent future harassment.

A jury could find CRST liable because, for any given incident of harassment, the dozens of complaints CRST had received previously put CRST on constructive notice that harassment would continue if CRST did not undertake more rigorous preventive efforts. The minor changes CRST made to its preventive measures—adding a hotline and adding dispatchers to the annual anti-harassment training given managers (EEOC-Br. 27-28)—were simply insufficient for any reasonable employer to expect harassment of female drivers would subside.

CRST disputes that it had constructive notice harassment was ongoing and likely to continue. CRST argues that the deposition testimony of 154 women and CRST’s internal records of harassment complaints received from another 99 women are “mere ‘complaints’ by female drivers of alleged harassment by other male drivers, on other trucks, and at other locations and times.” CRST-Br. 51 (emphasis added). However, if these complaints are “mere allegations,” it is only because CRST made a deliberate decision not to make determinations of credibility when it investigated sexual harassment complaints it received. Having deliberately chosen not to determine which complaints are actually credible, CRST cannot claim that the complaints are “mere allegations” and, on that basis, resist their use as evidence to demonstrate that CRST knew harassment was widespread and responded inadequately.

CRST’s calculated refusal to determine whether harassment complaints were credible led directly to the ineffectiveness of its responses. CRST states it responded to harassment complaints with a variety of “appropriate disciplinary actions” (CRST-Br. 12), but this is false. Although women complained about a wide range of very serious forms of harassment, see A-92;A-320-36, CRST’s responses were uniformly mild. A-317-19. The vast majority of the 150 complaints CRST recorded on its PWE chart resulted in a verbal warning. See A-317-19 (showing “vw” in 116 out of 150 complaints, or 77%).[8] This was true, even when the complaint was as serious as rape or sexual assault. See, e.g., EEOC-Br. 25 (Barnes told Gloria South CRST was terminating her trainer after she reported his repeated rapes, but PWE shows “verbal warning/no females”) (citing A-318; XVII-Apx.4521-31); see also A-317-19;IX-Apx.2460-61(CRST gave trainer verbal warning after P.Blake reported his rapes);XV-Apx.4060-70(same for M.Rice);XIII-Apx.3414-21(CRST gave trainer verbal warning after T.Jackson reported he threatened her with bodily harm); XI-Apx.2832-34(CRST gave male trainee verbal warning after B.Dixon reported his rape);XIV-Apx.3656-65(no discipline for C.Moffett’s co-driver after she reported his rapes).

CRST argues that an employer is not required to credit a complainant’s uncorroborated statements that the alleged harasser disputes. CRST-Br. 53&n.14 (citing Adams v. O’Reilly Automotive, Inc., 538 F.3d 926 (8th Cir. 2008)). This means only that CRST could reasonably disbelieve a particular woman whose story sounded non-credible and, on that basis, decide not to discipline her harasser. This Court did not mean that, under Adams, CRST, having received complaints of harassment for years from dozens of women, could consistently make no findings as to whether harassment actually occurred, impose on every accused harasser the same “verbal warning” and “no females” designation regardless of the severity of the accusation, and then defend its failure to take more rigorous preventive steps on the basis that each complaint was a “mere allegation.” This Court has never held that an employer can routinely decline to make any determination, with the result that the most serious harassment receives the exact same “remedy” as less egregious—albeit still actionable—harassment.

EEOC also challenged the district court’s ruling that EEOC cannot rely on CRST’s internal records of harassment complaints. Consistent with this Court’s decision in Sandoval, EEOC asserts these records are relevant because they demonstrate (1) CRST’s knowledge of how often women complained of harassment and the types of harassment of which they complained, and (2) what CRST did in response. EEOC-Br. 88-90. CRST contends the district court properly excluded this evidence because it is “unexamined hearsay.” CRST further argues that since EEOC relied on essentially the same evidence in opposing CRST’s pattern-or-practice motion, the district court’s pattern-or-practice ruling somehow bars the use of this evidence to demonstrate CRST’s liability in individual instances. CRST-Br. 56-57.

CRST is mistaken in both respects. These documents, taken directly from CRST’s ordinary business records, are not hearsay, because EEOC does not offer these internal company documents to prove that a particular incident of harassment occurred, in that EEOC is not appealing the district court’s decision that EEOC cannot seek relief for any woman who was not deposed. Rather, EEOC seeks only to demonstrate the indisputably relevant points, as discussed above, that CRST knew women were complaining about sexual harassment on a regular basis and that its responses to those harassment complaints were legally inadequate. And, for the reasons we explained, supra at 27-30, the district court’s pattern-or-practice ruling has no effect on EEOC’s reliance on this evidence.

C. CRST is liable, even when it took prompt steps after the harm occurred, because CRST failed to take proper preventive steps beforehand.

EEOC also appeals the court’s ruling that EEOC cannot seek relief for four additional women because CRST responded adequately when CRST learned of their harassment. EEOC noted that each woman reported her harassment to CRST as it was happening or immediately thereafter. EEOC-Br. 53-55. EEOC argued that CRST is liable under Title VII because, although CRST eventually separated each woman from her harasser, CRST did not take appropriate remedial steps to prevent future harassment, such as imposing meaningful discipline. By doing nothing, or by imposing only a verbal warning and/or “no females” designation, CRST’s responses in these four instances, like its responses to other harassment complaints, see id. at 55-56, failed to inform its workforce that CRST does not tolerate sexual harassment and tacitly encouraged future harassment, id. at 87-88.

CRST does not contest EEOC’s factual assertion that CRST imposed no meaningful discipline on these four harassers after each woman informed CRST of the harassment. See CRST-Br. 58-62.[9] Instead, citing Weger v. City of Ladue, 500 F.3d 710, 723-24 (8th Cir. 2007), CRST argues that it cannot be held liable in these four instances because “it permanently separated the alleged victim from the alleged harasser.” CRST-Br. 59-62.

Weger does not hold that separating a complainant from her harasser fulfills an employer’s Title VII responsibilities as a matter of law, only that it sufficed under those particular facts. 500 F.3d at 723 (citation omitted).[10] This Court’s general rule is that an employer avoids liability when it takes “appropriate corrective action” that is “reasonably calculated to end the harassment.” Id.; Davis v. Tri-State Mack Distrib., 981 F.2d 340, 343 (8th Cir. 1992). Merely separating one harasser from one complainant is insufficient where, as here, numerous women complained of harassment on an ongoing basis and CRST was fully aware, in each instance, that the harassment was not an isolated occurrence involving a single harasser, but one of dozens of such incidents involving multiple complainants and harassers. Under these circumstances, CRST was obligated not just to deter future harassment by one particular harasser, but to deter other potential harassers, as well, by communicating to its workforce that sexual harassment would not be tolerated. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1120-21 (9th Cir. 2004) (inaction constitutes ratification; effective remedy must deter other potential harassers).

By the time CRST received Fernandes-Fabre’s complaint in July 2006, CRST had not communicated this message to its drivers, having given the vast majority of the 60 or so accused harassers entered on the PWE only a “verbal warning.” See A-317-18.[11] By the time CRST received Laudermilk’s and Shadden’s complaints in April and May of 2007, and even Vance’s complaint in July 2008, CRST still had not communicated this message as, once again, the vast majority of harassment complaints resulted in the same “verbal warning.” A-318-19. A jury could find CRST liable for the harassment experienced by these four women, notwithstanding CRST’s eventual response after each woman complained, because the complaints CRST received in the preceding months and years put it on notice that female trainees and drivers, like these four, would likely continue to experience harassment if CRST did not undertake more rigorous preventive efforts, and CRST chose not to undertake more rigorous preventive efforts.

D. The district court erred in ruling CRST’s lead drivers are not supervisors.

EEOC has argued that the district court erred in holding CRST’s trainers are not “supervisors” for purposes of assessing CRST’s liability under Title VII, and that this ruling affects the analysis of CRST’s liability for trainees who notified CRST of harassment only after extracting themselves from the situation. EEOC-Br. 78-79&n.25;90-92 (citing Faragher, 524 U.S. at 807-08). CRST disputes that its trainers are “supervisors” and argues it would be entitled to summary judgment in any event because it satisfies Faragher’s two-part affirmative defense as a matter of law. CRST-Br. 62-68. CRST is incorrect.

This Court’s standard for who is a “supervisor,” which identifies four common supervisory activities (the authority to hire, fire, promote, or reassign to significantly different duties), provides a rule that addresses typical workplaces. See Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004). But CRST’s workplace is unlike any this Court has addressed in its prior decisions, largely because of the extraordinary level of control trainers have over their trainees during the 28-day over-the-road training period, where they are physically isolated from CRST managers and most other CRST drivers. EEOC-Br. 5;28-32;34-36;41-43;45-47. Although CRST argues that trainer authority is “no greater than [that] of the team leaders and foremen that this Court has held are not supervisors” (CRST-Br. 64), trainers’ expansive authority, whether exercised by all trainers or not, distinguishes this case from the Court’s prior decisions on this issue.

CRST’s argument that it would prevail, in any event, in establishing the Faragher affirmative defense (CRST-Br. 66-68) fails. CRST has not established, as a matter of law, that it has implemented adequate preventive measures or established an adequate reporting system. EEOC-Br. 18-28;82-86. Nor has CRST established, as a matter of law, that no trainee had a reasonable basis for delaying her complaint of harassment to CRST. To the contrary, a number of trainees reasonably feared their trainers would cause them physical harm or would abandon them in a remote location if the trainers knew they were reporting harassment. E.g., EEOC-Br. 20;31-37;39-53.

E. The district court erroneously held that 14 women did not experience harassment that was “severe or pervasive.”

EEOC asks this Court to review the district court’s ruling that 14 women did not experience harassment that was “severe or pervasive.” EEOC has explained that the conduct these women experienced, see EEOC-Br. 28-47, is comparable to conduct this Court has found actionably severe or pervasive. Id. at 70-78. CRST does not dispute EEOC’s description of these women’s allegations, only whether the conduct was sufficiently severe or pervasive under this Court’s precedent. CRST-Br. 68-74.[12]

The purportedly-similar cases CRST cites to demonstrate conduct that is not “severe or pervasive” (CRST-Br. 70-73) involved workplace environments very different from CRST’s. In Powell v. Yellow Book USA, Inc., 445 F.3d 1074 (8th Cir. 2006), for instance, a co-worker commented several times to plaintiff about sexual activities outside of work and allegedly propositioned plaintiff for sex, but this occurred in an office setting, where plaintiff was surrounded by other workers. Id. at 1077. In contrast, these 14 women, ten of whom were trainees at the time, experienced the unwelcome conduct in remote and isolated locations—generally the cab of a truck, while on the road with the harasser, far from CRST managers and their families for days or weeks at a time. A jury could find that a trainee is more vulnerable under such circumstances and that the same kind of harassing conduct has a more severe impact on a woman in such a setting than otherwise-similar conduct might have on someone in an office setting. Cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998) (severity of harassment requires consideration of social context).

The harassing conduct these 14 women experienced, even when not expressly sexual in nature, reflected intimidation and hostility toward women sufficient to be actionable under Title VII. Peggy Pratt, for instance (one of the 11 women CRST dismisses without discussion) described her trainer’s controlling and stalking conduct; use of profanity (calling her a “fucking bitch” “at least twice a day”); repeated denigration of her potential as a truck driver; and frequent screaming that left her “petrified,” “cr[ying her]self to sleep at night,” and caused one dispatcher, hearing the trainer screaming in the background during a telephone call, to say “I can’t believe you’re in the truck with this man.” EEOC-Br. 31-33. Contrary to CRST’s contentions, this Court has recognized such “[i]ntimidation and hostility toward women” as actionable workplace harassment. Burns v. McGregor Elec. Indus., 989 F.2d 959, 964 (8th Cir. 1993) (citation omitted).

CRST and EEOC both point to decisions of this Court that reach contrary conclusions on seemingly similar facts. This simply underscores how close this factual question is and why this Court should permit a jury to decide whether the harassment these 14 women experienced was “severe” or “pervasive.”

F. Judicial estoppel does not apply here.

EEOC challenges the district court’s ruling that EEOC cannot seek relief for three women—Payne, Timmons, and Starke—because they did not list a claim against CRST on their bankruptcy petitions. EEOC argued that the district court abused its discretion in applying judicial estoppel here because the requisite element of a party’s inconsistent representations before two different courts is missing: EEOC took no position concerning these claims in any prior matter, and Payne and Timmons are not parties to this lawsuit, but merely witnesses and potential beneficiaries of EEOC’s claim. EEOC-Br. 67-70.

CRST argues that “a federal agency should not be permitted to facilitate fraud on the bankruptcy courts and creditors.” CRST-Br. 75-77. CRST further argues that the “threat to the integrity of the judicial process” is, “[i]f anything, … greater where EEOC lawyers are personal counsel for each claimant and personally act as the claimants’ attorneys in asserting their claims.” Id. at 78.

CRST mischaracterizes the relationship between EEOC and individual class members and ignores EEOC’s role in this case as an enforcer of federal civil rights laws. Congress gave EEOC litigation authority “to enable the EEOC to correct ‘public or “societal” wrongs.’” Am. Nat’l Bank, 652 F.2d at 1184. When EEOC files a lawsuit seeking relief for a class of aggrieved employees, EEOC does not serve as personal counsel for any individual class members, but represents only the government. Gen. Tel. Co., 446 U.S. at 323 (EEOC “not merely a proxy” for victims of discrimination). True, when EEOC seeks monetary compensation for victims, EEOC represents the interests of individual class members, but EEOC does not act as their attorney in asserting such claims, and those individuals have no say in how EEOC litigates a case. Cf. id. at 331 (EEOC’s obligation to advance the public interest may conflict with individual interests).

Judicial estoppel is not like the doctrines of res judicata, collateral estoppel, failure to mitigate, and satisfaction of claims, all of which seek to ensure that legal claims, once resolved by a court on the merits, are not re-litigated and that claimants do not receive double or undeserved compensation. CRST-Br. 75-77. Judicial estoppel is an equitable doctrine that a court may—but is not obligated to—apply when proper to prevent a fraud on the court. There is no basis to apply this doctrine here, because no such fraud occurred.

EEOC is not defrauding the court because EEOC did not take any position on this matter in any prior proceedings. Payne and Timmons were not defrauding the bankruptcy court when they filed their petitions because they never contemplated pursuing any claim, as neither filed an EEOC charge within the 300-day charge filing period. By the time EEOC named them as potential class members, both had lost the right to assert their own private causes of action against CRST. Starke has since petitioned the bankruptcy court to amend her filings to include this claim, and recently asked this Court to substitute the bankruptcy Trustee as the party in interest in this appeal.

Under these circumstances, it serves no discernible purpose to apply the equitable doctrine of judicial estoppel to prevent EEOC from seeking full compensation from CRST and thereby fulfilling EEOC’s enforcement role. EEOC does not gain any unfair advantage when it is permitted to seek relief for these individuals, since EEOC’s only role is to advance the public interest. As the Supreme Court noted in a related context, a plaintiff’s ability to seek monetary compensation for victims of discrimination is one important tool to motivate employers to remain vigilant in complying with Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-21 (1975) (prospect of backpay award provides catalyst for employers to eliminate discriminatory practices). EEOC should be allowed full use of that tool here.

III. CRST is not entitled to attorneys’ fees.

EEOC appeals the district court’s award of over $4.5 million in attorneys’ fees and costs. If this Court agrees that EEOC satisfied Title VII’s pre-suit requirements, the fee award will obviously be vacated. But, even if this Court concludes there were defects that cannot be rectified by a stay, the fee award should nevertheless be reversed. Under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the proper focus is the reasonableness of EEOC’s conduct. EEOC reasonably believed its pre-suit conduct satisfied the statutory pre-suit requirements because no court of which we are aware has ever ruled that this type of investigation, reasonable cause determination, and class-wide conciliation was insufficient for an EEOC lawsuit seeking class relief. EEOC-Br. 92-96.

CRST has cited not one case in which a court found EEOC’s pre-suit conduct inadequate in comparable circumstances. The cases CRST cites (CRST-Br. 84-86) describe conciliation efforts that are completely unlike those here. In EEOC v. Asplundh Tree Expert Company, 340 F.3d 1256, 1261 (11th Cir. 2003), EEOC ended conciliation even though Asplundh had indicated continued interest, and the issue was whether EEOC had responded reasonably and flexibly to Asplundh’s requests for more time and information about EEOC’s legal theory. In EEOC v. Agro Distribution, 555 F.3d 462, 472-73 (5th Cir. 2009), the court held that EEOC had not conciliated in good faith before filing suit where Agro made an offer that EEOC rejected ten months later, insisting on a level of compensation that turned out to be unsupportable by the facts in the case. In EEOC v. Hendrix College, 53 F.3d 209, 210 (8th Cir. 1995), the defendant changed its unlawful practices and advised EEOC of the change before EEOC filed its lawsuit. And in Pierce Packing, 669 F.2d at 608, the court held that EEOC could not seek to enforce a pre-determination settlement agreement without first investigating the original charge, issuing a reasonable cause determination, and offering an opportunity to conciliate.

Here, in contrast, EEOC conducted an investigation and provided CRST with all the time and information it requested, and EEOC ended conciliation only after CRST unequivocally indicated it was no longer interested. EEOC-Br. 17-18. Given the absence of contrary precedent, it was reasonable for EEOC to believe its pre-suit conduct satisfied the statutory prerequisites to suit.

CONCLUSION

EEOC urges this Court to reverse the court’s award of attorneys’ fees and costs, reinstate EEOC’s lawsuit, grant the other relief requested in this appeal, and remand for further proceedings.

[1] CRST erroneously believes the 68 women listed in the Table of Women in EEOC’s opening brief are the only appeal subjects. CRST-Br. 5-6&n.3;25;32; 36;49. As EEOC’s footnote to the Table of Women explained, EEOC is seeking review of the court’s rulings concerning 107 women, and “[w]here these women are discussed in the Statement of Facts, each name appears in bold type.” EEOC-Br. viii n.1. Thus, the Table of Women lists only the women mentioned by name in the opening brief.

[2] In EEOC’s Statement of Issues in its opening brief, the relevant statutory provision for the first issue (whether EEOC properly conciliated its claim in this lawsuit) should have been 42 U.S.C. § 2000e-5(f)(1), not § 2000e-5(b).

[3] ADEA’s conciliation requirements are similar to Title VII’s. See 29 U.S.C. §626(b).

[4] EEOC did not “repeatedly” tell the district court that “pattern or practice” “was the central unifying claim” in EEOC’s lawsuit, as CRST wrongly asserts (without any citation to the record). See CRST-Br. 32.

[5] Amici thus have misread EEOC’s argument when they suggest that EEOC has implied that it has a different conciliation obligation in pattern-or-practice cases than in any other class case. Amici-Br. at 24.

[6] Pages cited in these cases here are those cited in EEOC’s opening brief, EEOC-Br. 63-64.

[7] See EEOC-Br. 59-60 (listing “investigation” as one of the steps § 706 directs EEOC to undergo before filing suit); 60 (arguing EEOC met conciliation requirements here by, among other things, “investigating”); 61 (challenging court’s view that EEOC failed to satisfy statutory pre-requisites and arguing that EEOC, during its investigation, sought information about the experiences of other women for a time period before and after Starke’s tenure with CRST); 63-66 (challenging court’s view that, to litigate these “class” claims, EEOC first had to investigate, issue cause finding, and conciliate each individual instance of sexual harassment of a female CRST driver).

[8] “No females” cannot properly be considered “discipline,” although it is a form of remedial response. “Nf” appears on the PWE in 72 out of 150 entries, or 48%.

[9] CRST contends that Fernandes-Fabre initially said nothing to her dispatcher about sexual harassment, allegedly saying only that she and her trainer “were not getting along.” CRST-Br. 59-60. Whether Fernandes-Fabre’s statements to the dispatcher in July 2006 sufficed to give CRST notice of possible harassment is a jury question. In resolving that factual question, a jury could properly consider that, in the prior eighteen months, CRST had recorded at least 60 harassment complaints from female trainees and drivers, and that CRST knew that women were continuing to report harassment on a regular basis.

[10] This Court ruled that the City’s response was appropriate where two women had complained about a single harasser, the harassment ended the same day they complained, and the City thereafter issued a written warning to the harasser and separated him from the complainants. Weger, 500 F.3d at 723-24.

[11] Most of the terminations noted on the PWE, see A-317-19 (“t”), were not related to sexual harassment. CRST documented only two terminations for sexual harassment: John Kewley, see PWE (March 2008), A-319, and another driver not listed on the PWE. EEOC-Br. 25-26.

[12] Although their experiences varied, CRST discusses only three women in any detail and, like the district court, dismisses the facts concerning the other 11 as “follow[ing] the same pattern as the three discussed.” Id. at 74; compare A-220-25;A-230-32.