EEOC’s opening brief argued that the district court abused its discretion in awarding $3.3 million in attorney’s fees in this Title VII enforcement action. EEOC contended that although it lost, its action was not “frivolous, unreasonable, or without foundation,” as required by Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). For sixty-nine claimants, EEOC asserted that existing precedent supported its belief that its investigation, cause finding, and conciliation allowed it to pursue a class harassment case. As to another seventy-one claimants dismissed on summary judgment, EEOC contended it had a reasonable basis to believe each woman was subjected to sexual harassment for which CRST was liable based on its inadequate response to the problem. Finally, EEOC contended that even if some claims were frivolous, Fox v. Vice, 563 U.S. 826 (2011), precludes fees.

CRST’s response mischaracterizes key holdings of the district court. Contrary to CRST’s assertions, the court never held EEOC’s supervisor theory was frivolous or EEOC was frivolous to believe this was a pattern-or-practice case. CRST also mischaracterizes the facts. Trying to distance itself from the repeated, serious sexual harassment at the core of this case, CRST insists that 153 of EEOC’s 154 claims were “meritless” claims on which it “prevailed,” and that even if 5.4% of female drivers paired with men experienced harassment, that “fell well short of proving widespread harassment.” CRST-Brf 48, 55. CRST is wrong.

Four of EEOC’s 154 claimants were intervenors with whom CRST settled. See I-Apx.29 (R.274-R.277); XVII-Apx.4740-43. Two dismissed claimants filed private lawsuits against CRST (one settled, one is pending). And sixty-eight women (besides Monika Starke), had trial-worthy claims of sexual harassment; CRST either never moved for summary judgment for them (realizing their potential merit), or the district court or this Court held that EEOC presented enough evidence for a jury to find discrimination. See XVIII-Apx.4973 (characterizing sixty-seven claimants dismissed for presuit requirements as “potentially meritorious sexual harassment claims”); XVIII-Apx.5034-38 (adding Starke and T.Jones as potentially meritorious). The district court itself acknowledged that EEOC’s evidence showed that “146 female drivers variously suffered physical, mental, and/or emotional abuse at the hands of their male co-drivers and lead drivers.” XVIII-Apx.4799. CRST’s Human Resources Director, Jim Barnes, told claimant Stacy Barager he received “20 or so” sex harassment complaints a week, adding “if he fired everybody, they wouldn’t have [any] drivers left.” VII-Apx.1828. EEOC lost, but its claims did not lack “merit” in the sense that nothing happened to these women, and the record refutes CRST’s denial of “widespread” harassment.

CRST’s legal arguments fare no better. Tellingly, CRST’s answer brief first addresses the district court’s fee calculation. CRST-Brf 26-39. That puts the cart before the horse. CRST is entitled to fees only if Christiansburg’s standard was met. It was not.

CRST insists repeatedly that it was “entitled” to fees because it prevailed. CRST-Brf 26, 28. But Christiansburg is not merely a “prevailing party” standard; rather, EEOC’s action also had to be frivolous, unreasonable, or without foundation. CRST points to no Supreme Court or Eighth Circuit case that unambiguously informed EEOC it had to investigate, find cause, and conciliate on an individual basis in a class case. Nor does CRST cite any controlling authority foreclosing EEOC from claiming that an employer that consistently fails to respond to ongoing complaints of serious sexual harassment (about one complaint per week for four years, IV-Apx.1135-36) in a way that deters future harassment might be liable under Title VII.

Finally, CRST misunderstands and misapplies Fox. Because some of EEOC’s claims were either prevailing or non-frivolous, CRST may not receive fees simply by showing an EEOC claim was frivolous; it must establish—and the court must find—that CRST would not have incurred the fees “but for” the frivolous claims. The district court’s fee award does not reflect that standard, requiring reversal.

ARGUMENT

I. CRST Largely Ignores Christiansburg’s Standard for Awarding Fees to a Prevailing Title VII Defendant.

CRST acknowledges, as it must, that its fee application under 42 U.S.C. § 2000e-5(k) is governed by the legal principles outlined in Christiansburg, 434 U.S. at 422. CRST-Brf 1. CRST’s first point heading, however, reflects a fundamental misunderstanding of Christiansburg’s standard that pervades CRST’s brief.

CRST asserts that “[a]s the prevailing defendant, CRST is entitled to a fee award under Christiansburg.” CRST-Brf 26 (emphasis added); see id. at 28. CRST further asserts that district courts have “wide discretion” to award fees to prevailing Title VII defendants. Id. at 26.

CRST is wrong. A Title VII defendant is not entitled to fees simply because it prevailed, and a district court does not have wide discretion to award such fees. CRST confuses the generous standard for awarding fees to prevailing Title VII plaintiffs with the “more rigorous standards” CRST must satisfy as a prevailing defendant. Davis v. City of Charleston, 917 F.2d 1502, 1504 (8th Cir. 1990) (reversing fee award to prevailing civil rights defendants).

Prevailing Title VII plaintiffs are entitled to fees in all but exceptional circumstances. Christiansburg, 434 U.S. at 416-17. Prevailing Title VII defendants, however, may be awarded fees “only in very narrow circumstances,” i.e., where the plaintiff’s claim was “frivolous, unreasonable, or groundless” or “the plaintiff continued to litigate after it clearly became so.” Williams v. City of Carl Junction, 523 F.3d 841, 843 (8th Cir. 2008).

Christiansburg explains why prevailing Title VII plaintiffs are normally entitled to attorney’s fees but prevailing defendants are not. Presumptively awarding fees to prevailing plaintiffs is consistent with Congress’s selection of Title VII plaintiffs as the means to vindicate a public policy “that Congress considered of the highest priority”, i.e., the enforcement of Title VII. 434 U.S. at 418. Further, such fees are awarded only “against a violator of federal law.” Id. But to assess fees against all losing plaintiffs “simply because they d[id] not finally prevail,” the Court stated, “would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of . . . Title VII.” Id. at 422. Limiting prevailing defendants’ fee awards to frivolous claims, in contrast, discourages groundless lawsuits without undercutting Title VII’s vigorous enforcement. Id. See Chester v. St. Louis Housing Auth., 873 F.2d 207, 209 (8th Cir. 1989) (“strict nature” of Christiansburg standard promotes vigorous Title VII enforcement).

Consistent with this rationale, this Court reverses fee awards when lower courts fail to adhere to Christiansburg’s “strict” standard. For instance, this Court reversed a fee award to the prevailing defendant in EEOC v. Kenneth Balk & Associates, because there was “some basis” for EEOC’s claim. 813 F.2d 197, 198 (8th Cir. 1987). Likewise, this Court reversed fees to the prevailing defendants in Williams because the plaintiff’s evidence supported “at least a colorable argument.” 523 F.3d at 844. See also EEOC v. Trans States Airlines, 462 F.3d 987, 996 (8th Cir. 2006) (no fees because EEOC had a “colorable” argument). And this Court reversed the fee award to the prevailing defendant in Chester because the court’s findings did not reflect Christiansburg’s “limited reading of the term ‘meritless.’” 873 F.2d at 209.

As these cases demonstrate, Christiansburg establishes that awarding fees to a prevailing defendant “is ‘a conservative tool, to be used sparingly’” and only where “‘the plaintiff presses a claim which he knew or should have known was groundless, frivolous, or unreasonable.’” EEOC v. Great Steaks, Inc., 667 F.3d 510, 517, 519 (4th Cir. 2012) (citations omitted) (affirming denial of fees because “EEOC’s case had a factual and legal basis from start to finish”). If, on the other hand, a plaintiff’s legal theory is simply novel or untested—i.e., it has not been definitively rejected in “controlling and unambiguous precedent” under comparable facts—Christiansburg does not allow a district court to shift fees. Hamer v. Lake Cty., 819 F.2d 1362, 1367-68 (7th Cir. 1987).

Christiansburg itself illustrates this point. EEOC, exercising newly-enacted authority enabling it to litigate based on any charge pending with it as of the effective date of the new authority, sued Christiansburg based on a charge EEOC had closed two years earlier. Christiansburg, 434 U.S. at 414. The district court dismissed EEOC’s lawsuit as falling outside the scope of EEOC’s newly-granted litigation authority, but denied Christiansburg fees because EEOC’s interpretation of its new authority “was an issue of first impression requiring judicial resolution” and “was not frivolous”—reasoning the Supreme Court endorsed. 434 U.S. at 414-15, 423-24.

CRST overlooks the Supreme Court’s carefully-drawn distinction between fee awards to prevailing plaintiffs versus prevailing defendants. CRST refers to a court’s “broad” or “wide” discretion to impose fees, and urges this Court simply to defer to the lower court’s exercise of its discretion. E.g. CRST-Brf 22, 25-26. Both themes suggest either that CRST does not understand Christiansburg’s significant constraint on fee awards to prevailing defendants, or that CRST recognizes that the fee decision here cannot meet this rigorous standard.

Because CRST ignores the Christiansburg standard, its answer brief primarily re-argues the merits on which it prevailed. See, e.g., CRST-Brf 40-44 (arguing, inter alia, Christiansburg is satisfied because the district court and this Court held EEOC failed to satisfy Title VII’s presuit requirements). What this Court and the district court held demonstrates only that EEOC lost, not that EEOC’s contentions were legally or factually baseless. See Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999) (noting “a good argument for affirming” is not necessarily “a compelling one for attorney’s fees”). Likewise, the fact that courts imposed fees on EEOC in other cases under very different circumstances provides no insight into whether EEOC’s claims here were frivolous. CRST-Brf 27 n.6 (acknowledging these cases involved “different … facts and legal issues”).

Finally, CRST’s repeated urging that this Court defer to the district court, e.g. CRST-Brf 25-26, 53, overlooks the limits on deference when a lower court’s determination turns largely on questions of law. CRST wrongly contends in its Summary of Argument that EEOC “does not identify any actual error of law committed by the district court.” CRST-Brf 24. For only eleven EEOC claimants did the awarded fees arguably turn on the facts—the eleven women the court ruled frivolous because the court considered their harassment insufficiently severe or pervasive (and fees for three of these claimants implicate a legal question that EEOC discusses infra). The remaining fees turned on questions of law:

· Based on Title VII’s statutory language and existing legal precedent, could EEOC have reasonably believed it satisfied statutory presuit requirements?

· Must EEOC plead “pattern or practice” in its complaint before relying on that method of proof?

· Under existing legal precedent or good faith arguments for its extension, could EEOC have reasonably thought that (a) Title VII requires employers to remedy harassment in a manner reasonably designed to deter new incidents, and (b) trainers were trainees’ supervisors, thereby making CRST liable unless it established a two-part affirmative defense?

· Under existing precedent or good faith arguments for its extension, could EEOC have reasonably thought that for women harassed by multiple harassers, assessing “severe or pervasive” requires consideration of the harassment as a whole?

This Court’s standard of de novo review of legal questions extends to “the legal issues related to the award of attorney’s fees.” Sturgill v. United Parcel Serv., 512 F.3d 1024, 1036 (8th Cir. 2008); see also Pickett v. Sheridan Health Care Ctr., 813 F.3d 640, 645 (7th Cir. 2016) (“We review an award of attorney’s fees for abuse of discretion. … We review de novo any legal analysis that is part of the district court’s decision.”). And “[a] district court abuses its discretion when it bases its decision on a legal error.” United States v. Bailey, 571 F.3d 791, 804 (8th Cir. 2009) (citations omitted). Thus, the district court’s views on questions of law do not warrant this Court’s deference, as CRST appears to urge. CRST-Brf 52-53, 56, 58.

II. CRST’s Response Fails to Show EEOC was Frivolous to Believe It Had Satisfied Title VII’s Presuit Requirements.

EEOC’s opening brief explained why EEOC reasonably believed it had satisfied Title VII’s presuit requirements for all its claimants. See EEOC-Brf 27-40 (citing Supreme Court and circuit cases). EEOC argued the district court thus abused its discretion by imposing fees for sixty-nine claimants on this basis. Id. In response, CRST points to nothing—not a Supreme Court case, an Eighth Circuit case, nor a case from any other circuit—informing EEOC as of 2007 that it could not follow a process that courts had allowed EEOC to follow for years when seeking relief for multiple claimants.

Responding to EEOC’s argument that its administrative process comported with Title VII’s language (EEOC-Brf 29), CRST makes the unremarkable observation that Title VII requires EEOC to investigate charges. CRST-Brf 39-40. But, as Judge Murphy noted in her dissent, nothing in Title VII requires EEOC to “conduct its presuit obligations for each complainant individually when litigating a class claim.” See XVIII-Apx.5038. CRST offers no response to EEOC’s argument that when EEOC filed this lawsuit in 2007, this Court had never held that EEOC could not identify additional claimants of the same type of discrimination through discovery. Compare EEOC-Brf 30 with CRST-Brf 40-47; see also XVIII-Apx.5038.

CRST points to nothing, because there is nothing to point to. As Judge Murphy noted in her emphatic 2012 dissent, no statutory authority or Eighth Circuit precedent would have informed EEOC in 2007 that this Court would rule as it did in 2012. See XVIII-Apx.5038-39 (stating this Court’s 2012 decision “imposes a new requirement”). Such an absence of authority, alone, requires reversal of this portion of the district court’s fee award as an abuse of discretion. See Hamer, 819 F.2d at 1367-68 (denying fees where plaintiff’s legal theory had not been definitively rejected in “controlling and unambiguous precedent” under comparable facts).

Furthermore, EEOC proceeded here based on more than just the absence of preclusive authority. As EEOC argued, existing Supreme Court precedent and decisions from other circuits supported its belief that it had satisfied Title VII’s presuit requirements, a view that has been reinforced by subsequent Supreme Court and out-of-circuit decisions. EEOC-Brf 29-32, 38-39. CRST fails to cite any contrary authority—before or since EEOC filed this lawsuit—barring EEOC from seeking relief for claimants first identified during discovery.

And CRST barely mentions (and only in a footnote) Judge Murphy’s vigorous dissent. See CRST-Brf 39-47; see id. at 45 n.9. As EEOC argued, that a member of this Court agreed with EEOC on this point “should all but preclude a finding that” EEOC’s claim was unreasonable. EEOC-Brf 34-35. CRST attacks Judge Murphy’s reasoning, but not EEOC’s contention that the presence of a dissent offers a forceful argument against a finding of frivolousness.[1]

Instead of citing controlling authority barring EEOC from proceeding as it did here, CRST mischaracterizes EEOC’s position and strains to distinguish the cases on which EEOC relies. CRST first observes that EEOC acknowledges it did not identify and investigate each claimant’s individual allegations during the administrative process, CRST-Brf 42 n.7, but then terms this acknowledgement an “admission” that EEOC “breached its statutory obligations.” See, e.g. id. at 41-42, 46-48. CRST argues that EEOC’s acknowledgement also extends to the summary judgment claimants, and it offers this “concession” as a second basis for affirming fees for those seventy-one claimants. CRST-Brf 48 & n.11.

EEOC never made any such concession. EEOC has argued throughout this litigation—as Judge Murphy concluded in her 2012 dissent, XVIII-Apx.5038—that Title VII does not obligate EEOC to “conduct its presuit obligations for each complainant individually when litigating a class claim.”

Specifically, EEOC has contended consistently that it satisfied Title VII by conducting each step of the administrative process—investigating, finding cause, and conciliating—for the class of women affected by CRST’s discriminatory conduct. See, e.g., I-Apx.41; R.229 at 7-9. The Supreme Court and other circuits have since confirmed that this process comports with Title VII. See generally Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1652 (2015) (“EEOC, to meet the statutory condition [of conciliation], must tell the employer … what practice has harmed which person or class” and provide an opportunity “to achieve voluntary compliance.”); id. at 1656 (EEOC’s reasonable cause letter must “describe[] both what the employer has done and which employees (or what class of employees) have suffered as a result”) (emphases added); Arizona v. The Geo Group, Inc., 816 F.3d 1189, 1200 (9th Cir. 2016) (reinstating fifteen EEOC claimants not identified during EEOC’s investigation); see also EEOC-Brf 38-39.

Ultimately, CRST concedes that EEOC can identify additional claimants in some EEOC lawsuits. But, CRST argues, EEOC could not do that here, although CRST’s explanation for why not is murky. CRST-Brf 43-46. CRST argues first that General Telephone Co. v. EEOC, 446 U.S 318, 323-34 (1980), provides EEOC no support because the Supreme Court presumed “there would be some ‘reasonable investigation’” for EEOC class claims whereas here, according to CRST, “EEOC never investigated or found reasonable cause … for any supposed company-wide practices.” CRST-Brf 42-43. Second, CRST concedes that courts in fourteen cases allowed EEOC to identify additional claimants in litigation, but argues they are inapposite because each involved either “class-wide” or “company-wide” claims of discrimination. CRST-Brf 44.

CRST is wrong. Class-wide or company-wide discrimination is exactly what EEOC investigated and sought to litigate here. During the administrative process, EEOC asked CRST about complaints or charges by other female drivers besides Starke and how CRST responded to them, and EEOC learned of about a dozen other women who experienced over-the-road harassment. See VI-Apx.1636-74; XVIII-Apx.4943-44 & n.9. EEOC’s reasonable cause finding concluded that CRST subjected Starke and other women to workplace sexual harassment. VI-Apx.1629-30. Conciliation efforts included discussion about the class. VI-Apx.1617-20. And when EEOC filed suit, it sought relief for “Starke and a class of similarly situated female employees.” See I-Apx.40-43.

Thus, this case does not differ from General Telephone. And none of the fourteen decisions that CRST tries to distinguish even suggest, let alone hold, that the process those courts endorsed—allowing EEOC to identify additional claimants during litigation in a class case—would not apply to an EEOC claim of class-wide or company-wide failure to protect female employees from harassment. Rather, as Judge Murphy concluded in her dissent (XVIII-Apx.5038-39), the reasoning of these cases fully supports EEOC’s approach here. See, e.g., EEOC v. Keco Indus., 748 F.2d 1097, 1100-01 (6th Cir. 1984) (EEOC, by investigating and conciliating class-based claim, satisfied presuit requirements for claimants identified after suit filed); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1184-86 (4th Cir. 1981) (same).[2] Other courts, before 2007, had applied this same principle to claims of class-wide harassment. See, e.g., EEOC v. Dial Corp., 156 F. Supp. 2d 926, 934-43 (N.D. Ill. 2001).

CRST further argues that establishing pattern-or-practice discrimination would have made the difference on this question. CRST-Brf 43. CRST’s argument boils down to this: If the district court had accepted EEOC’s evidence of pattern-or-practice discrimination, then the administrative process EEOC followed here would have allowed EEOC to seek relief for claimants identified after suit was filed. Because the court ruled EEOC’s pattern-or-practice evidence insufficient, however, Title VII required EEOC to conduct its administrative process on an individual basis. See CRST-Brf 41-47. CRST has no basis for this contention, and it is incorrect.

First, CRST misrepresents the record by asserting that this Court and the district court held that “EEOC can pursue claims for claimants identified after filing suit” when (and, impliedly, only when) EEOC can show its claimants “were affected by” pattern-or-practice discrimination. CRST-Brf 43. To the contrary, both courts explicitly “express[ed] no view” on whether EEOC’s administrative steps would have sufficed for a pattern-or-practice case. See XVIII-Apx.4967 n.21, 5042 n.13.

Second, CRST offers no statutory provision or caselaw to support its argument (CRST-Brf 43-47) that agency requirements during the administrative process—when EEOC has not even decided whether to sue—differ for pattern-or-practice cases. Nor would EEOC have any reason to anticipate such a rule, because it would make no sense to vary EEOC’s administrative obligations retroactively depending on whether EEOC later files suit and seeks to use the pattern-or-practice proof framework, as the circuit court noted in rejecting such a rule in Geo. See 816 F.3d at 1201. Such a rule would not only leave EEOC uncertain, during the administrative process, concerning what it must do, but—as Judge Murphy noted in her dissent, XVIII-Apx.5038-39—could end up “punish[ing]” EEOC for “employer recalcitrance” where EEOC asks an employer for information about additional discrimination victims and the employer withholds that information. See EEOC-Brf 9-10; compare VI-Apx.1636-40 with XVII-Apx.4579-80.

Third, CRST’s argument is flawed in any event because even if the district court and this Court had ruled on this question, that would not establish that EEOC was frivolous to think otherwise when it filed suit. The district court announced a new rule in 2009 for what constitutes adequate presuit conduct, a rule this Court endorsed for the first time in 2012. EEOC’s failure to anticipate this new rule in 2007 does not demonstrate that EEOC acted frivolously. In arguing that it does (CRST-Brf 43-44), CRST relies on the very “hindsight logic” and “post hoc reasoning” that Christiansburg proscribes. See 434 U.S. 421-22.

In the end, CRST generally reargues the merits of this issue, id. at 42-46, suggesting (as in its first point heading) that CRST believes simply prevailing on this question entitles it to fees. But the essence of Christiansburg is that EEOC had to be more than just wrong about its administrative requirements. EEOC had to have no basis for seeking relief for claimants identified in discovery. Cf. Kenneth Balk, 813 F.3d at 198 (reversing fees because EEOC had “some basis” for its claim). EEOC had far more than “some basis” here.

III. EEOC’s Failure to Plead or Establish Pattern-or-Practice Discrimination Did Not Make Its Lawsuit Frivolous.

CRST argues—incorrectly—that several EEOC legal theories are frivolous because they rested on a pattern-or-practice “claim” that EEOC did not plead, the district court rejected, and EEOC did not appeal. E.g. CRST-Brf 43-46, 49-50, 53-54. Notably, fees for only eight women—the claimants whose harassment occurred entirely before February 4, 2005—hinge on EEOC’s pattern-or-practice theory. EEOC-Brf 78-79. In any event, CRST’s pattern-and-pattern arguments are meritless.

A. EEOC need not plead “pattern-or-practice.”

Contrary to CRST’s misrepresentation (CRST-Brf 50), the district court did not impose fees because “EEOC’s pattern-or-practice allegations were groundless and unreasonable.” Rather, the court ruled nineteen claimants frivolous because EEOC relied on the pattern-or-practice theory without having pled “pattern or practice” in EEOC’s complaint. A-73-75. But, as EEOC argued, plaintiffs are not required to plead pattern-or-practice in their complaints before seeking to use this method of proof at trial. EEOC-Brf 79-81. CRST does not dispute this contention.[3] See CRST-Brf 50. CRST thus does not even defend the district court’s basis for awarding fees for these nineteen claimants.

“A district court abuses its discretion when it bases its decision on a legal error.” Bailey, 571 F.3d at 804 (citations omitted). Because the court based fees for nineteen women on this legally-incorrect rationale, the court abused its discretion, and these fees must be reversed. See, e.g., EEOC-Brf 81; Pulaski Cty. Republican Comm. v. Pulaski Cty. Bd. of Election Comm’rs, 956 F.2d 172, 174-75 (8th Cir. 1992) (reversing fees to prevailing civil rights defendant because court based its award on two erroneous views of the law).

B. EEOC’s legal theories did not rest on pattern-or-practice.

CRST responds to several EEOC arguments by contending— repeatedly and incorrectly—that EEOC’s legal theories amount to pattern-or-practice claims in disguise, necessarily frivolous given the lower court’s rejection of EEOC’s pattern-or-practice evidence. CRST asserts this argument for presuit requirements, EEOC’s theory of CRST’s liability, and the inextricable inter-connectedness of EEOC’s claimants. CRST-Brf 32, 40-43, 53, 62. None of these arguments depended on EEOC’s ability to establish pattern-or-practice discrimination.

EEOC already explained why the court’s pattern-or-practice ruling is immaterial to the reasonableness of EEOC’s belief that it satisfied presuit requirements. See Point II, supra. The same is true of EEOC’s argument that CRST’s liability depended on the interconnected nature of CRST’s consistently-inadequate response to harassment complaints despite notice of a widespread, ongoing problem. Specifically, EEOC argued that its theory of liability rested on CRST’s failure, over time, to ramp up its response to harassment complaints despite clear indications that CRST’s tepid responses were not deterring additional harassment. EEOC advanced this theory both in seeking to prove pattern-or-practice discrimination and in seeking to establish CRST’s liability for individual claims. See EEOC-Brf 50-76, 95-102.

For example, EEOC argued that even without establishing pattern-or-practice discrimination, a jury could find CRST violated Title VII by failing to protect a particular woman from harassment if, before that time, CRST had received complaints from other women and only separated the harasser and complainant, without imposing any discipline. EEOC argued CRST could be liable under a negligence theory because CRST’s anemic response (usually a verbal warning and sometimes a temporary ban on driving with women) sent a signal to CRST’s workforce—harassers and victims alike—that CRST tolerated harassment.

CRST wrongly argues that this theory of liability, and EEOC’s argument under Fox that its claims are all inextricably intertwined, necessarily rest on EEOC’s pattern-or-practice theory. CRST-Brf 32-33, 37-38, 53-55, 62. This is incorrect. EEOC cited legal authority supporting its liability theory. EEOC-Brf 59-61, 69-72. None of it assumed the existence of pattern-or-practice discrimination.

CRST, in contrast, offers no support for its contention that absent sufficient evidence to establish pattern-or-practice discrimination, EEOC’s claim for each claimant “stood on its own facts.” See, e.g., CRST-Brf 38. Both parties relied on the same body of summary judgment evidence in opposition to CRST’s pattern-or-practice motion and its individual motions. E.g. R.149 at 4 n.1. And the district court recognized that EEOC could proceed with its “individual claims of sexual harassment” after rejecting EEOC’s pattern-or-practice theory. XVIII-Apx.4818.

Neither Title VII nor this Court’s precedent supports the evidentiary limitation on Title VII litigation that CRST seems to suggest. To the contrary, this Court’s precedent recognizes the probative value of “me too” evidence in a variety of situations. In Craik v. Minnesota State University Board, a Title VII case involving both individual and class claims, this Court held the district court erred by considering the plaintiffs’ individual evidence and class evidence separately. This Court explained that “all the evidence was relevant and should have been considered together.” 731 F.2d 465, 471-72 (8th Cir. 1984). And although the evidence in Craik sufficed to establish some pattern-or-practice discrimination, id. at 484, where it was not sufficient, this Court nevertheless considered all of the evidence relevant for the individual claims. See also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977) (multiple legal theories may be applied to a particular set of facts).

Even in cases without pattern-or-practice allegations, this Court has found evidence from other employees relevant to establish an employer’s liability for an individual’s claim of discrimination. In Hawkins v. Hennepin Technical Center, a lawsuit alleging unlawful retaliation after the plaintiff complained of sexual harassment, this Court reversed the trial court’s exclusion of the testimony of other women describing their prior complaints of sexual harassment and the (inadequate) steps the employer took in response. 900 F.2d 153, 155-56 (8th Cir. 1990). This Court explained that the district court’s exclusionary rulings “unfairly prevented Hawkins from proving her case,” noting that “such background evidence may be critical” for a jury’s assessment of, inter alia, whether the employer maintains “an atmosphere of condoned sexual harassment in [the] workplace.” Id.

Likewise, in Dindinger v. Allsteel, Inc., this Court upheld the district court’s admission of trial testimony of other women (non-plaintiffs) concerning their pay to support the individual pay claims of the three plaintiffs. 853 F.3d 414, 424-26 (8th Cir. 2017) (“[M]e-too evidence should normally be freely admitted at trial because an employer’s past discriminatory policy and practice may well illustrate that the employer’s asserted reasons for disparate treatment are a pretext for intentional discrimination.” (citations and internal quotations omitted)); see Bennett v. Nucor Corp., 656 F.3d 802, 809-10 (8th Cir. 2011) (no rigid rule against admitting evidence of a nonparty’s discrimination; district court must, in each case, make a fact-intensive, context-specific inquiry).

EEOC thus had “some basis” for believing that, even if it had been seeking relief for only a single claimant, testimony from other employees would have been relevant to prove CRST’s liability for failing to prevent and deter workplace harassment. As EEOC’s opening brief explains, some of EEOC’s theories of liability depended on establishing that CRST was aware that harassment complaints were not sporadic and isolated, but rather regular and ongoing for years. E.g. EEOC-Brf 51-52, 59-61. Establishing CRST’s liability under this legal theory necessarily made the allegations of all 154 claimants interrelated, including the sixteen claimants the district court did not find frivolous (in whole or in part). It did not, however, depend on the court finding EEOC’s pattern-or-practice evidence sufficient. CRST errs in arguing that it did.

C. EEOC’s decision not to appeal the pattern-or-practice ruling is irrelevant.

Contrary to CRST’s implication (CRST-Brf 24), EEOC’s decision not to appeal the district court’s pattern-or-practice ruling neither establishes nor suggests EEOC’s lawsuit was frivolous. Even before the district court ruled on CRST’s pattern-or-practice motion, the court had already decided it would not allow a bifurcated trial—a primary benefit of invoking the pattern-or-practice framework. In a bifurcated trial, the plaintiff may present testimony from a representative sampling of claimants to establish liability in stage one, and evidence of damages for all claimants in stage two (if there is a liability finding in stage one). See Teamsters, 431 U.S. at 357-62 & nn.44-46. Here, the district court denied EEOC’s bifurcation motion based on trial management considerations. III-Apx.770-75. EEOC chose not to challenge this discretionary trial-management decision given the substantial deference accorded such rulings.

The district court’s subsequent pattern-or-practice ruling specified that EEOC could still seek relief for individual claimants. XVIII-Apx.4808, 4818. Consequently, EEOC determined that no appeal was needed, because EEOC could achieve its intended goals of reforming CRST’s harassment procedures and securing relief for individual harassment victims through the evidentiary framework available in this case. See Cooper v. Fed. Reserve Bank, 467 U.S. 867, 877 (1984) (recognizing there can be valid individual claims despite rejection of classwide pattern-or-practice discrimination).

IV. CRST Fails to Show that Any Summary-Judgment Claimants Were Frivolous.

EEOC’s brief argued it was not frivolous for EEOC to seek relief for each of the seventy-one claimants for whom the district court granted summary judgment and later imposed fees. CRST fails to counter this argument. Instead, CRST essentially reiterates that EEOC lost. CRST-Brf 51-73. CRST’s failure to point to any legal precedent that would establish what Christiansburg requires—that EEOC lacked any legal or factual basis for its contentions—confirms that the district court abused its discretion in imposing fees for these seventy-one claimants. Kenneth Balk, 813 F.2d at 198.

A. Eleven “severity/pervasiveness” claimants.

As EEOC noted, of the 140 claimants for whom the court imposed fees, the court based fees for only eleven on insufficient severity or pervasiveness of the harassment. EEOC-Brf 43. CRST’s response fails to refute EEOC’s argument that the district court abused its discretion in awarding fees for any of these eleven.

Three of the eleven experienced harassment by multiple driving partners. As EEOC argued, a hostile work environment “is a cumulative phenomenon,” requiring consideration of all the circumstances. EEOC-Brf 43 (quoting Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1124 (8th Cir. 2007)). The district court acknowledged this principle. A-101 (recognizing relevance of “totality of the circumstances”). Instead of applying it in its Christiansburg analysis, however, the court analyzed whether EEOC’s claims on behalf of J.Shepler, D.Hindes, and F.Shadden were frivolous harasser-by-harasser, treating each harasser as a separate claim rather than considering these claimants’ experiences as a whole. EEOC-Brf 44-48. EEOC recognizes it did not prevail on this point at summary judgment, but this Court’s strong caution against carving up victims’ harassment allegations incident-by-incident or harasser-by-harasser, see Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997), confirms that the district court made a legal error at the fee stage in failing to consider these claimants’ harassment as one hostile environment.

CRST defends these fees by simply repeating what happened to each woman and the court’s ruling as to each. CRST-Brf 71-73. CRST fails to refute EEOC’s argument that even though EEOC lost on summary judgment for these women, it was not frivolous to seek relief for them based on their harassment by a succession of driving partners.

The flaw in the court’s approach of separately considering each harasser is particularly evident in Shepler’s case, for whom the district court imposed fees in part and denied fees in part. The court considered EEOC’s allegations that Shepler was harassed by a co-driver to be non-frivolous and denied fees. A-109-110. But because EEOC also alleged, as part of Shepler’s story, that she had been previously harassed by her trainer, the court imposed a half-share of fees on EEOC for the earlier allegation. That earlier harassment by Shepler’s trainer was part of her CRST work experience. Even if not separately actionable, it constituted at least background experience that enhanced the severity of what happened to Shepler later with her co-driver (which the court found non-frivolous). For the court to impose fees because EEOC included the earlier harassment along with the later, non-frivolous harassment underscores the court’s legal error in carving up these allegations into separate claims for each harasser.

For the remaining eight women in this group, CRST mistakenly contends EEOC relied on the pattern-or-practice method of proof. CRST-Brf 70 (citing EEOC-Brf 78). CRST is wrong; the page of EEOC’s brief that CRST cites addresses a different set of claimants (those whose harassment occurred before February 4, 2005).[4]

CRST acknowledges (CRST-Brf 70), but then offers no response to, the argument EEOC did make for the remaining eight claimants: that it was reasonable to include them initially because their allegations were “close to the actionable line,” even though EEOC later dropped them after having the benefit of their depositions and CRST’s summary judgment motions. EEOC-Brf 48-50. As the Supreme Court noted in Christiansburg, “[d]ecisive facts may not emerge until discovery.” 434 U.S. at 422. And when they do, a plaintiff can avoid a fee award by discontinuing litigating a claim once it becomes evident there are insufficient facts or legal precedent to support it. Id. That is what EEOC attempted to do here.

CRST’s reiteration that EEOC conceded these eight claimants did not experience actionable harassment, CRST-Brf 70, only goes to the underlying merits, not to whether it was frivolous for EEOC to include these eight women up to the point of EEOC’s concession. The district court’s basis for imposing fees—that it was frivolous for EEOC to have relied on a pattern-or-practice theory for originally including these claimants without having alleged a pattern-or-practice claim in its complaint—is an abuse of discretion because it is based on legal error. See supra at 21-22. CRST fails to explain how fees are otherwise justified for these eight claimants.

B. Fifty-six notice/remedy claimants.

For the fifty-six claimants ruled frivolous because CRST lacked contemporaneous notice of the harassment or responded adequately, EEOC argued it reasonably sought relief for each woman based on plausible legal theories: (1) CRST trainers were supervisors, and (2) regardless of whether the harassers were supervisors or co-workers, Title VII obligates employers to respond more vigorously to harassment complaints when circumstances demonstrate that the company’s present response is not deterring additional harassment. EEOC-Brf 50-76. EEOC premised these legal theories on established precedent and reasonable arguments for extending existing precedent. Id. at 51-55, 57-61, 70-72. Record evidence supported EEOC’s application of these legal theories to each claimant. E.g., id. at 55-57, 60-69.

In response, CRST, like the district court, mischaracterizes EEOC’s theory of liability. CRST discusses separately the summary judgment claimants the court dismissed because they did not complain to CRST concurrently with the harassment or at all (the “no notice” claimants) and those whose complaints CRST addressed by separating them from their harassers (the “adequate remedy” claimants). EEOC discusses both groups together because EEOC relied on the same legal theory for both.

To recap EEOC’s theory, EEOC contended, first, that CRST’s trainers were supervisors and as such CRST was liable for their harassment unless CRST proved a two-part affirmative defense: (1) CRST exercised reasonable care to prevent harassment, and (2) harassment victims unreasonably failed to make use of available complaint mechanisms or to avoid harm otherwise. EEOC-Brf 50-69.

EEOC contended, second, that an effective anti-harassment policy requires employers like CRST to address harassment complaints not only by fixing the immediate problem, but also by taking steps to deter future harassment. EEOC further contended that CRST’s awareness that harassment complaints were continuing at a rate of about one per week demonstrated that its modest responses (i.e., giving harassers a verbal warning and sometimes imposing a temporary ban on driving with women) were not achieving deterrence and, thus, obligated it to undertake more rigorous steps to protect its workforce. Having failed to do so, EEOC believed a jury could reasonably find that CRST’s persistent response to harassment complaints with measures that CRST knew were ineffective violated Title VII.[5] EEOC-Brf 59-61, 70-72.

Under this same theory, CRST’s negligent failure—in the face of this knowledge—to take steps to deter future harassment meant a jury could also find CRST liable for the predictable result of its negligence: more harassment, by other harassers, even if some of those new victims failed to complain. EEOC-Brf 62-67. As this Court observed in Sandoval v. American Building Maintenance Industries, the “ordinary tort principles of negligence” that govern Title VII harassment claims mean “an employer may be negligent although it did not have actual notice if it reasonably should have anticipated the harassment.” 578 F.3d 787, 801 (8th Cir. 2009).

EEOC’s legal theories for the “no notice” and “effective remedy” claimants did not depend on its pattern-or-practice allegation, as CRST contends. CRST-Brf 53, 62. EEOC was entitled to offer the same evidence to prove both individual and pattern-or-practice discrimination. Thus, to the extent CRST argues that EEOC’s liability theory for the “no notice” and “adequate remedy” claimants was frivolous because the court, in 2009, granted CRST’s pattern-or-practice summary judgment motion, CRST is incorrect.

CRST also makes a failed effort to establish these legal theories as unreasonable by arguing that “the district court correctly rejected EEOC’s argument that ‘CRST must have been on notice of all incidents of sexual harassment because it received sporadic complaints.’” Id. at 54 (quoting A-77) (emphasis added). CRST further misstates EEOC’s position by claiming that “EEOC does not dispute that it would be groundless for EEOC to bring a [Title VII] claim if EEOC knew that the employer was not on notice of the alleged harassment.” CRST-Brf 51.

An average of approximately one complaint per week for forty-six months is hardly “sporadic.” And EEOC’s theory was not that this constant influx of complaints gave CRST actual notice that any particular incident would occur. Rather, EEOC reasonably believed that these complaints put CRST on constructive notice that harassment would happen again to someone. And in such circumstances, EEOC reasonably believed CRST could be liable for failing to do more to prevent it.

As with CRST’s administrative requirements arguments, here, too, CRST points to no case holding that EEOC’s legal theory was or is untenable. CRST cites Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1195 (8th Cir. 2006). CRST-Brf 51. Gordon involved only a single employee’s claim, holding that Shafer’s adoption of a complaint process that Gordon failed to use established Shafer’s affirmative defense against liability for supervisor harassment. EEOC recognizes why CRST argues Gordon is relevant—CRST claims that after the district court rejected EEOC’s pattern-or-practice evidence, EEOC was left with individual claimants. But Gordon involved only a single plaintiff. Gordon did not argue that prior complaints from other employees had put Shafer on notice that Gordon, too, might be harassed absent additional deterrent steps.

To the extent EEOC extrapolated its legal theory from other precedent addressing preventive measures in other circumstances, see EEOC-Brf 59-61, 70-71, fees are not proper; Title VII plaintiffs are allowed to make good faith arguments to extend existing precedent without risking fees. See Khan, 180 F.3d at 837 (affirming denial of fees because plaintiff’s unsuccessful claim reflected “a good faith argument for an extension of existing law”). Fees are reserved for claims that the plaintiff should have known it could not possibly win, and neither Gordon nor any other Eighth Circuit case definitively establishes there was no basis for EEOC’s theory of liability.

Indeed, this Court’s decision in Sandoval, 578 F.3d 787, provides strong support for the reasonableness of EEOC’s liability theory. CRST points out that on remand the Sandoval plaintiffs were unable to establish their claims. CRST-Brf 54. But that later development in no way undermines Sandoval’s rule that employers may be negligent, even absent actual notice, if circumstances should have led them reasonably to anticipate the harassment. 578 F.3d at 801-02.

Similarly unavailing is CRST’s argument for the twenty-one “effective response” claimants. CRST argues that when EEOC brought its complaint, “it was settled law” that “CRST’s responses constituted prompt and effective remedial action.” CRST-Brf 61; see generally id. at 60-62. CRST cites only Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999), to support this argument. But Carter addressed a harassment complaint by a single employee. 173 F.3d at 696-98. It did not purport to offer a broader rule for situations like this, where a company knew harassment was recurring regularly.

CRST also distorts what Carter says. In stating that employers are liable when they “fail[] to take prompt remedial action reasonably calculated to stop the harassment,” this Court never suggested an employer satisfies this requirement by simply separating the harasser from his victim. Id. at 702. Rather, after noting that “adequacy of an employer’s response [to harassment complaints] will often be a question of fact for the factfinder to resolve,” this Court identified several relevant factors, only one of which is “whether … the measures ended the harassment.” Id. (emphasis added). Additional considerations include “the options available to the employer, possibly including … written warnings, reprimand in personnel files, or termination.” Id. (citation omitted). All of these disciplinary measures were “options available to,” but never used by, CRST here except for the one or two instances when CRST terminated repeat harassers.

In fact, Carter reinforces the reasonableness of EEOC’s liability theory. Almost half of the twenty-six women for whom fees were imposed based on “no notice” did complain to CRST once they had removed themselves from their harasser.[6] Others had good reasons why they did not. See, e.g., IV-Apx.1010; EEOC-Brf 68-69. CRST and the district court both assumed that because the harassment had ended without CRST’s involvement, it had no further obligation to investigate or discipline the harasser. EEOC took a different view, arguing that CRST was still obligated to investigate and take appropriate action in response to harassment because failure to do so merely solidified the well-known view among CRST’s workforce that CRST did not punish harassers. See EEOC-Brf 65-67. That some men accused of harassment and not disciplined by CRST went on to harass other women supports EEOC’s view. Id. at 62-64.

CRST also attacks the reasonableness of EEOC’s supervisor argument. CRST-Brf 56-59. EEOC contended that it reasonably argued CRST trainers were supervisors, an argument that, if accepted, would have made CRST liable for trainer harassment of trainees, unless CRST established its two-part affirmative defense. EEOC-Brf 52-69. CRST begins by misrepresenting the district court’s ruling. The court did not hold “that EEOC lacked a reasonable basis for asserting” lead drivers were supervisors, nor did it “carefully appl[y] Christiansburg to EEOC’s supervisor theory.” CRST-Brf 56, 58. To the contrary, the district court expressly “decline[d]” to reach the question. A-82 n.12. Thus, there is no district court ruling on this question to which this Court could give “substantial deference,” as CRST urges. CRST-Brf 56, 58.

In any event, CRST is wrong that EEOC’s position was frivolous. Once again ignoring Christiansburg’s caution against “hindsight logic” and “post hoc reasoning,” 434 U.S. at 421-22, CRST primarily rehashes the merits. It points to earlier decisions of this Court that arose under very different facts and relies heavily on this Court’s divided 2012 decision, without mentioning Judge Murphy’s vigorous dissent on the supervisor issue. CRST-Brf 56-58. Judge Murphy’s dissent, along with the views of the four dissenting Supreme Court justices in Vance v. Ball State University, 570 U.S. 421, 458-61 (2013), provide strong evidence that EEOC’s argument was not frivolous.

Finally, CRST criticizes EEOC for “cherry picking” Jeana Fowler-Allen’s and Samantha Cunningham’s experiences. The district court chose these two claimants as examples in its fee decision. A-75-76, 88-89. CRST accuses EEOC of omitting “crucial details” and “critical … facts,” i.e., that Fowler-Allen failed to complain to CRST after her trainer extorted sex from her in exchange for recommending her promotion to co-driver; and the specific content of Cunningham’s dialogue with her dispatcher when she told him about the harassment. CRST-Brf 52, 61. But EEOC’s discussion of Fowler-Allen never suggested she did complain (see EEOC-Brf 55-56, 62), and EEOC’s point in discussing Cunningham was to underscore that even though she told CRST about the harassment, CRST never disciplined her harasser, once again sending the message to its workforce that its harassment policy had no teeth.

C. Eleven claimants harassed before February 2005.

EEOC argued it reasonably sought relief for three women who experienced harassment both before and after February 4, 2005, under the theory that each experienced a single hostile work environment. EEOC-Brf 76-78 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). EEOC reasonably included the other eight whose harassment occurred entirely before February 4, 2005, under EEOC’s pattern-or-practice theory of proof. EEOC-Brf 78-81.

CRST is correct that EEOC argued below that both legal theories could support all eleven claimants. CRST-Brf 66-67. On appeal, EEOC refined its arguments, arguing it was non-frivolous to seek relief for the eight pre-February 2005 claimants solely under the pattern-or-practice theory. But EEOC’s refinement does not make that argument frivolous.

And CRST is also wrong in assuming EEOC mentioned Kelli Carney in this section by mistake. See CRST-Brf 66. Although the district court awarded fees for Carney’s claim based on presuit requirements, EEOC includes Carney here as well, to emphasize there would be no occasion to impose partial fees on EEOC if, for example, the presuit ruling were reversed but not the “untimely claimants” ruling. EEOC otherwise relies on its opening brief (EEOC-Brf 76-87) for these eleven claimants.

D. Although irrelevant to fees, EEOC had a non-frivolous basis to believe CRST had a “pattern” or “practice” of responding inadequately to harassment complaints.

The district court never ruled that EEOC’s reliance on “pattern or practice” was frivolous on this record. A-73. To the extent it is relevant, however, EEOC had a non-frivolous basis for seeking to use the pattern-or-practice framework here and, therefore, a non-frivolous basis to seek relief for the eight women whose entire harassment occurred before February 4, 2005. See EEOC-Brf 81-87.

CRST admits that between January 1, 2005, and October 15, 2008, it received approximately one sexual harassment complaint per week. IV.Apx.1135-36. That amounted to some 250 complaints, resulting in 154 women for whom EEOC sought relief, and ninety-nine other women identified in CRST’s own records as having complained (but who were not deposed so could not be claimants).

This evidence reflects an alarming number of women complaining of harassment. CRST’s own expert calculated that at least 5.4% of the female drivers paired with male drivers alleged they were harassed during over-the-road driving assignments; EEOC’s expert put the figure at 9.4%. EEOC-Brf 60. As Judge Reade observed, “146 female drivers variously suffered physical, mental and/or emotional abuse at the hands of their male co-drivers and [trainers].” XVIII-Apx.4799. And the evidence showed that when women followed CRST’s directive and complained to their dispatchers, some dispatchers failed to remedy the problem or pass the complaint along to HR. XVIII-Apx.4801-02.

Record evidence further shows that CRST routinely responded to these complaints—even rape and sexual assault—with verbal warnings, despite the availability of more rigorous discipline as outlined in CRST’s employee handbook. E.g. XVIII-Apx.4799-4800. EEOC argued that the steady continuation of harassment complaints should have notified CRST that its standard response was not preventing new harassment.

EEOC reasonably believed that CRST’s habitual failure to employ adequate disciplinary measures for both driver misconduct and dispatcher failures constituted a “pattern” or “practice” of CRST discrimination. The district court rejected EEOC’s argument. But asserting it, on this factual record, was not frivolous. See Williams, 523 F.3d at 844 (reversing fees because plaintiff presented “colorable arguments”); Hamer, 819 F.2d at 1367-68 (absent unambiguous, controlling legal precedent establishing that a legal theory has no basis, “[i]nnovative … advocacy … must not be unreasonably penalized with hindsight”).

V. CRST Fails to Justify This Fee Award Under Fox and Hensley.

CRST admits that its fee records do not connect the fees it incurred to any particular claimant or group of claimants, other than Starke. EEOC-Brf 19 (citing XXI-Apx.5659, 5664-65, 5672). Consequently, EEOC argued, the district court had no means to determine that it was satisfying Fox’s “but for” standard. Id. at 89-94, 102-04. EEOC further explained the many ways in which EEOC’s claims were intertwined such that most of CRST’s billing entries necessarily encompassed work addressing the case as a whole or the sixteen non-frivolous claims. Id. at 95-102. And EEOC pointed out that this “intertwining” argument becomes even more compelling if this Court reverses, for example, the district court’s presuit requirements ruling, which would add another sixty-nine non-frivolous claimants to the existing sixteen. Id. at 90.

CRST argues “the district court complied with Fox by limiting its fee award to claims meeting the Christiansburg standard.” CRST-Brf 26, 28. This articulation of Fox garbles Fox’s “but for” requirement: CRST is not entitled to fees for all frivolous claims, but only for the particular fees it would not have incurred but for the frivolous claims. The difference is meaningful. CRST’s articulation also ignores EEOC’s contention that its claims were inextricably intertwined and, consequently, that the pro-rata average fee the court used here resulted in an award that encompasses substantial work CRST’s attorneys would have performed anyway to address EEOC’s case as a whole.

The cases CRST cites offer no persuasive authority for the district court’s use of a per-claimant average fee that included, in its base, many fees incurred addressing non-frivolous claims or EEOC’s case as a whole. CRST cites one case concerning deference, but it has nothing to do with attorneys’ fees, let alone with intertwining claims or awards based on pro rata averages. See CRST-Brf 29 (citing Kokocinski ex rel. Medtronic Inc. v. Collins, 850 F.3d 354, 362 n.7 (8th Cir. 2017) (addressing standard of review for court’s dismissal of shareholder derivative action)).

CRST’s reliance on Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), is also misplaced. CRST-Brf 32. Goodyear applied Fox’s “but for” standard to reverse a blanket $2.7 million fee award. The Supreme Court emphasized that Fox precludes fees for legal expenses—i.e., depositions or motions—that a party would have incurred even in the absence of misconduct. 137 S. Ct. at 1187 (need a “causal connection” between fees and misconduct). CRST contends that Goodyear’s approval of “estimates and percentages,” CRST-Brf 32, validates the district court’s pro rata approach here. CRST misunderstands Goodyear. What Goodyear allows is for courts to determine that “a particular category of expenses” or a “percentage” of that category “were incurred solely because of a litigant’s bad-faith conduct.’” 137 S. Ct. at 1187 (emphasis added). That is not what the district court did here. Rather, it awarded a pro rata share of fees without ever determining “which fees were incurred because of, and solely because of” EEOC’s frivolous claims. Id. at 1189. That constituted an abuse of discretion, requiring reversal. Id. at 1190.

CRST also tries, unsuccessfully, to distinguish Harris v. Maricopa County Superior Court, 631 F.3d 963 (9th Cir. 2011), which EEOC cited to show that pro-rata fees are not allowed. Compare CRST-Brf 30-31 with EEOC-Brf 91. CRST suggests Harris is inapposite because it was decided before Fox. But nothing in Harris conflicts with Fox, and Fox’s “but for” standard supports the Ninth Circuit’s view that pro-rata fees are disallowed.

The shortcomings of CRST’s arguments are illustrated by the district court’s award of a pro-rata portion of CRST’s pattern-or-practice fees for nineteen claimants (for two of whom the court awarded half-portions). See A-71-75, 119-121. The court divided CRST’s total pattern-or-practice fees ($456,320.90) by 154 and multiplied the result by eighteen to reach $53,336.16. Under Fox, however, even this portion of CRST’s pattern-or-practice fees could only be awarded if it represents work CRST would not have performed, but for the nineteen claimants. Clearly, it does not.

There can be no doubt CRST would have filed the same pattern-or-practice motion, even if EEOC had excluded those nineteen claimants and sought relief for only 135 claimants instead of 154. And in preparing the pattern-or-practice motion, CRST would have incurred the same expenses for legal research, discovery, motion drafting, and document preparation, with the possible exception of the costs of deposing eighteen of these nineteen claimants.[7] The court was therefore obligated under Fox, and Goodyear, to exclude these pattern-or-practice fees entirely, because they flunk the “but for” test.

This same deficiency exists throughout the court’s fee award. As EEOC’s opening brief explained, the narrative explanations in CRST’s attorney billing records demonstrate that the vast majority of legal work performed by CRST’s attorneys addressed either EEOC’s lawsuit as a whole or groups of EEOC claimants that included claimants for whom CRST did not seek fees or who the district court found non-frivolous. See EEOC-Brf 89-102. By glossing over this deficiency in the court’s fee decision, CRST underscores its inability to demonstrate that the fee award comports with Christiansburg and Fox.

CRST disputes EEOC’s contention (EEOC-Brf 95 & n.22) that a partially-prevailing defendant can obtain fees only for claims that are both frivolous and “distinctly different” from the non-frivolous claims, accusing EEOC of misunderstanding Hensley v. Eckerhart, 461 U.S. 424 (1983). CRST-Brf 33-35. Rather, it is CRST that overlooks two important considerations in Hensley.

First, Hensley addressed fees to a prevailing plaintiff, who “should ordinarily recover an attorney’s fee.” Hensley, 461 U.S. at 426, 429. Beyond that, the Court clarified when a court may award fees to a partially-prevailing civil rights plaintiff for its unsuccessful claims as well as its successful claims. Id. at 433-37 & nn.11&12. If the unsuccessful claims were “distinctly different” and based on “different facts and legal theories,” the Court stated that they must be omitted from the plaintiff’s fee award. Id. at 434-35. It was in this context that the Court stated, in dicta, that if the plaintiff’s “distinctly different” claim(s) were not just unsuccessful, but also frivolous, a defendant might recover the fees it incurred responding to them. Id. at 435 n.10. Thus, CRST’s criticism is misplaced; Hensley did identify the narrow—and, the Court said, likely infrequent, see id. at 435—circumstances when a partially-prevailing defendant may recover fees from a partially-prevailing civil rights plaintiff.

Hensley did not, however, establish or even discuss the method for calculating a fee award to a partially-prevailing defendant, as CRST wrongly contends. CRST-Brf 34-35. CRST mistakenly argues that Hensley’s guidance on how to estimate fees when a plaintiff’s prevailing and non-prevailing claims are intertwined, see 461 U.S. at 434-37, supports the district court’s methodology. CRST-Brf 35. To the contrary, Hensley was fashioning guidance for calculating fee awards to plaintiffs, who are presumptively entitled to fees. Hensley nowhere suggests that this same generous methodology would also apply to defendants, who are not. Under those circumstances, Fox controls. And Fox dictates a “but for” analysis that is both more rigorous than, and entirely different from, Hensley’s fee calculation guidance.

CONCLUSION

CRST’s fee award should be reversed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/Susan R. Oxford

Susan R. Oxford

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791 susan.oxford@eeoc.gov

[1] CRST contends that Judge Murphy relied solely on “EEOC class-based cases” and lacked “the benefit of EEOC’s statement in its second appeal reply brief that it had never pleaded a pattern-or-practice claim.” CRST-Brf 45 n.9 (citations omitted). But from the outset this case was also a “class” case. I-Apx.40-43. Moreover, it was obvious from EEOC’s complaint that EEOC had never pleaded a pattern-or-practice claim, id., something EEOC is not required to do, in any event, before using the pattern-or-practice proof framework. See EEOC-Brf 80-81.

[2] CRST also asserts these cases are distinguishable because some involve sexual harassment of multiple women “by the same alleged harassers in a common workplace.” CRST-Brf 44. But only Geo involved harassment, see 816 F.3d 1194, and the harassment there occurred in two facilities.

CRST also claims these cases are inapposite because they involve “controlling class-wide common facts and claims.” CRST-Brf 44. That commonality terminology pertains to Rule 23 class certification requirements, which the Supreme Court long ago held EEOC need not meet. See General Telephone, 446 U.S. at 323

[3] CRST never argued below that EEOC needed to plead “pattern or practice” in its complaint. A-73 (noting “[n]either party addresse[d]” EEOC’s failure to plead a pattern-or-practice claim).

[4] CRST again asserts that the district court imposed fees because “EEOC’s pursuit of a pattern-or-practice theory was frivolous.” CRST-Brf 69 (citing A-75). As noted above, however, the court declined to rule on whether pursuing the pattern-or-practice theory was itself frivolous, resting its imposition of fees for nineteen women instead on the erroneous notion that EEOC had to plead “pattern or practice” in its complaint.

[5] Indeed, CRST has now taken some additional measures. See Sellars v. CRST Expedited, Inc., 321 F.R.D. 578, 587 (N.D. Iowa 2017).

[6] See A.Baldwin (VII-Apx.1793-94); M.Beaton (VII-Apx.1887-88); K.Coronado (VIII-Apx.2257); C.Granofsky-Fletcher (IX-Apx.2584-90); J.Jackson (XI-Apx.2925-35); V.Mason (XI-Apx.3036-45); L.McBlair (XI-Apx.3066-79); T.Pile (XIII-Apx.3475-82); S.Pinchem (XIII-Apx.3529-42); R.Tucker (XV-Apx.4242-49).

[7] CRST would have deposed L.Skaggs anyway, because the court found portions of her allegations nonfrivolous. A-111-12. And EEOC argued in its opening brief that CRST would have likely deposed all of EEOC’s claimants because EEOC would have identified all as witnesses, if not as claimants. EEOC-Brf 96-98.