Justia.com Opinion Summary:
The EEOC filed suit against CRST, one of the country's largest interstate trucking companies, alleging that CRST subjected Monika Starke "and approximately 270 similarly situated female employees" to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The EEOC alleged that CRST was responsible for severe and pervasive sexual harassment in its New-Driver Training program. The court reversed the district court's grant of summary judgment on the EEOC's claims as to Starke because the EEOC, suing as plaintiff in its own name under section 706 of Title VII, could not be judicially estopped because of Starke's independent conduct; reversed the district court's grant of summary judgment on the EEOC's claims on behalf of Tillie Jones because the EEOC had produced sufficient evidence to create a genuine fact issue as to the severity or pervasiveness of harassment that she allegedly suffered; vacated, without prejudice, the district court's award of attorneys' fees to CRST because CRST was no longer a "prevailing" defendant under 42 U.S.C. 2000e-5(k); and affirmed the remainder of the district court's orders and remanded for further proceedings.Receive FREE Daily Opinion Summaries by Email
Civil case - Employment Discrimination. In an action by the EEOC alleging CRST subjected approximately 270 female employees to a hostile work environment in violation of Title VII, the district court erred in granting summary judgment against the EEOC on its claims involving three of the plaintiffs because the EEOC, suing as a plaintiff in its own name under Section 706 of Title VII, may not be judicially estopped because of the employees' independent conduct; however, the court did not err in granting CRST summary judgment on two of the employees because the harassment was not severe or pervasive or because CRST promptly remedied the situation; EEOC wholly failed to satisfy its statutory pre-suit obligations as to 67 women, and the district court did not err in barring the EEOC from pursuing claims as to these women; CRST Lead Drivers were merely the women trainees' coworkers and not their supervisors, and CRST could not be vicariously liable for sexual harassment perpetrated by the Lead Drivers; district court did not err in granting summary judgment for CRST on the EEOC's hostile work- environment claims on behalf of 12 women as the alleged harassment was not sufficiently severe or pervasive; the district court erred in granting summary judgment against the EEOC on its claims on behalf of Tillie Jones because the EEOC produced sufficient evidence to create a genuine fact issue as to the severity or pervasiveness of harassment suffered by Jones; as to 25 women, the EEOC failed to investigate or conciliate its claims on behalf of four of them and the district court's summary judgment is affirmed on the ground that the EEOC failed to discharge its pre-suit duties under Title VII; the district court did not err in granting CRST summary judgment with respect to the claims for the other 21 women because the EEOC failed to create a genuine issue of material fact as to whether CRST knew or should have known of the harassment and failed to take prompt and remedial action; award of attorneys' fees to CRST vacated and remanded. Judge Murphy, concurring in part and dissenting in part.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Equal Employment Opportunity
Plaintiff - Appellant,
Remcey Jeunenne Peeples;
CRST Van Expedited, Inc.,
Defendant - Appellee.
-----------------------------Equal Employment Advisory Council; *
Chamber of Commerce of the United
States; Society for Human Resource
Management; National Federation of
Independent Business Small Business *
Amici on Behalf of Appellee. *
Appeals from the United States
District Court for the
Northern District of Iowa.
Submitted: November 18, 2010
Filed: February 22, 2012
Before MURPHY, SMITH, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) filed suit in its own
name against CRST Van Expedited, Inc. (CRST), alleging that CRST subjected
Monika Starke "and approximately 270 similarly situated female employees" to a
hostile work environment, in violation of Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. Â§ 2000e et seq. Starke and Remcey Jeunenne Peeples
intervened in the EEOC-instituted action and individually pursued their respective
hostile work-environment claims against CRST, as well as claims for unlawful
retaliation under Title VII and Iowa state law.
The district court ruled in CRST's favor on a series of dispositive motions that
collectively disposed of the entire action. The district court also awarded CRST
$92,842.21 in costs and $4,467,442.90 in attorneys' fees and expenses, pursuant to
42 U.S.C. Â§ 2000e-5(k) and 28 U.S.C. Â§ 1920, as a sanction for the EEOC's failure
to reasonably investigate and conciliate in good faith its claims against CRST.
As set out below, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
This consolidated appeal concerns a sweeping employment-discrimination suit
that the EEOC instituted against CRST, one of the country's largest interstate trucking
companies. The EEOC alleged that CRST was responsible for severe and pervasive
sexual harassment in its New-Driver Training Program ("Training Program").
Because "we are reviewing the district court's grant of summary judgment against
[EEOC, Starke, and Peeples], we recite the facts in the light most favorable to
[them]." Bonn v. City of Omaha, 623 F.3d 587, 589 (8th Cir. 2010).
A. CRST's Business Model and Training Program
CRST is an interstate logistics and transit company that employs more than
2,500 long-haul drivers. CRST's business model relies on an efficiency measure
known as "Team Driving." CRST operates the trucking industry's largest fleet of
team-driven tractor trailers. Specifically, CRST assigns two drivers to a truck who
alternate between driving and sleeping on-board in the truck's sleeper cab for as much
as 21 days in order to maximize mileage and minimize stops.
Newly hired drivers must successfully complete CRST's Training Program
before CRST permits them to drive full time for full pay as certified CRST drivers.
The Training Program commences with a three-and-a-half day classroom component
("New-Driver Orientation") to orient the new drivers with CRST's methods and
During new-driver orientation, CRST distributes to each trainee its
"Professional Driver's Handbook" ("Driver Handbook"), which contains an entire
section devoted to its anti-harassment policy, as well as the procedures for reporting
such harassment. Additionally, CRST orientation leaders orally reiterate CRST's
written anti-harassment policy, explain to trainees how they can report harassment
complaints, and present a video stressing that CRST will not tolerate sexual
harassment. The Driver Handbook expressly forbids sexual harassment, as well as
any form of retaliation against complainants of sexual harassment. It also instructs
employees who endure or witness harassment or discrimination to immediately report
the conduct to either an immediate supervisor or the Director of Human Resources.
The Driver Handbook states that "[a]ll reports of harassment and/or discrimination
will be handled in a confidential manner." CRST's charges its Human Resources
Department (H.R.) with enforcing this anti-harassment policy. At New-Driver
Orientation's conclusion, CRST has each trainee sign a written "Acknowledgment and
Pledge Concerning Harassment and Discrimination," attesting to the facts that the
trainee "received and read [CRST's] Policy Against Unlawful Harassment and
Following orientation, each trainee embarks on a 28-day, over-the-road training
trip with an experienced, "Lead Driver," who familiarizes the trainee with CRST's
Team Driving model and evaluates the trainee's performance on this maiden haul. At
the conclusion of the trainee's 28-day training trip, the trainee's Lead Driver gives the
trainee "a pass/fail driving evaluation" that superiors consider when determining
whether to certify the trainee as a full-fledged CRST driver. But, under CRST's
organizational structure, Lead Drivers lack the authority to hire, fire, promote,
demote, or reassign trainees; CRST's Safety and Operations Departments make all
final decisions concerning the trainees' employment. Still, in a responsive letter to the
EEOC correspondence, H.R. Director James Barnes later described the Lead Drivertrainee relationship as "really no different than the role of supervisors in other
industries and organizations."
B. CRST's Channels for Reporting Sexual Harassment
CRST accorded its trainees and team drivers multiple channels for reporting
sexual harassment. Those channels included (1) CRST's "open-door policy," which
encouraged all of its employees to approach their supervisors, any employee in the
Operations or Safety Departments, or any manager about any issue; (2) toll-free
phone numbers for fleet managers who were available around the clock; (3)
Qualcomm, a device placed in every truck that transmits messages, similar to emails,
directly to fleet managers; (4) H.R.'s nationwide toll-free number and local toll phone
number, both of which CRST provided in the Driver Handbook's section on how to
properly report sexual harassment; and (5) evaluation forms given to all trainees at
the training trip's conclusion soliciting each trainee's feedback concerning his or her
C. Starke's Initiating Charge
On December 1, 2005, Starke filed a charge of discrimination with the EEOC.
Therein, Starke alleged that CRST "discriminated against [her] on the basis of [her]
sex (female) in that [she] was subjected to sexual harassment, in violation of Title VII
of the Civil Rights Act of 1964, as amended." In the "Particulars" section of the
charge form, Starke stated:
I was hired by the [CRST] on June 22, 2005[,] in the position of
Truck Driver. Since my employment began with the Respondent I have
been subjected to sexual harassment on two occasions by my Lead
Trainers. On July 7, 2005, Bob Smith, Lead Trainer[,] began to make
sexual remarks to me whenever he gave me instructions. He told me that
the gear stick is not the penis of my husband, I don't have to touch the
gear stick so often. "You got big tits for your size, etc. . . [.]" I informed
Bob Smith that I was not interested in a sexual relationship with him. On
July 14, 2005, I contacted the dispatcher and was told that I could not
get off the truck until the next day. On July 18, 2005[,] through August
3, 2005, David Goodman, Lead Trainer, forced me to have unwanted sex
with him on several occasions while we were traveling in order to get a
Upon receiving Starke's Charge, the EEOC notified CRST of the filing and
instructed CRST to respond, on or before December 30, 2005, with "a written
position statement on each of the allegations of the charge, accompanied by
documentary evidence and/or written statements, where appropriate." The EEOC
In April 2007, CRST added "ReportLine," an independently administered, tollfree hotline that employees may call to report, openly or anonymously, any illegal or
improper conduct; ReportLine forwards all personnel-related complaints to H.R. for
further review. Because the majority of the alleged harassment predates ReportLine's
inception, it is of limited relevance.
advised CRST to "include any additional information and explanation [it] deem[ed]
relevant to the [Charge]." The EEOC sent CRST a corresponding, initial "request for
information " asking that CRST "submit information and records relevant to the
[charge]." The EEOC assured CRST that "[t]he following dates are considered to be
the 'relevant period' for the attached [r]equest for [i]nformation: January 2,
2005â€“November 2, 2005." The EEOC's initial request for information primarily
concerned Starke's alleged harassment and did not seek information relating to other
On December 21, 2005, CRST submitted its "position statement" to the EEOC
and furnished the EEOC with all of the information that the EEOC demanded in the
request for information. In its position statement, CRST denied discriminating against
or harassing Starke. The company based this denial on its own internal investigation
into Starke's claims against Lead Drivers Smith and Goodman.2 CRST also disclosed
the identity of two other female drivers, Lori Essig and Tamara Thiel, who, like
Starke, had filed formal charges of discrimination with the EEOC against CRST.
Specifically, CRST contended that it interviewed eyewitnesses and the alleged
wrongdoers themselves about the matter. With respect to Smith, CRST interviewed
Frank Taylor, an eyewitness to some of the alleged harassment, who confirmed that
Smith made inappropriate remarks to Starke. Taylor stated that he admonished Starke
to abstain from driving with Smith on her training trip if she felt uncomfortable, but
that Starke continued driving with Smith anyway. For his part, Smith admitted to
uttering inappropriate comments, but he maintained that "nothing physical" transpired
between Starke and himself. Regarding Goodman, H.R. discovered that, on August
3, 2005, Starke reported on her evaluation form that Goodman had treated her "very
well." When CRST confronted Goodman about Starke's allegations, Goodman
acknowledged having a sexual relationship with Starke but averred that it was
consensual. Goodman's co-driver, Timothy Walker, corroborated Goodman's account
that the relationship was consensual, asserting that he overheard four "love messages"
that Starke had left on Goodman's voicemail.
D. The EEOC's Investigation and Reasonable Cause Determination
In the months that followed, the EEOC sent multiple supplemental requests for
information to CRST. Over the course of the investigation, the EEOC learned that,
in addition to Starke, Essig, and Thiel, female drivers Rhonda Morgan and Peeples
had also filed discrimination charges against CRST for alleged sexual harassment. On
July 28, 2006, the EEOC submitted a third supplemental Request for Information to
CRST. This third request for information asked that CRST furnish "a copy of all other
[c]harges of [d]iscrimination that CRST has received in the past five years from any
government agency that alleges sexual harassment." Additionally, the EEOC
demanded "the name, gender, home address, and home telephone number of all
employees that were trained by either [Smith] and/or [Goodman]," including "the
dates of the training and documentation of any complaints made against these two
trainers by any of these trainees."
On March 22, 2007, the EEOC presented CRST with a fourth supplemental
request for information seeking detailed contact information for all of its dispatchers
who worked during a complaint-relevant time and for female drivers that began
working after January 1, 2005.
On July 12, 2007, the EEOC presented CRST with its "Letter of
Determination," which (1) notified CRST that the EEOC had found reasonable cause
to believe that CRST subjected Starke and "a class of employees" to sexual
harassment on the basis of gender and (2) offered to conciliate the claim.
F. The EEOC's and CRST's Conciliation
On August 6 and August 7, 2007, CRST counsel Thomas D. Wolle contacted
EEOC Investigator Pamela Bloomer to confirm CRST's desire to conciliate with the
EEOC. On August 8, 2007, Bloomer left Wolle a voicemail message asking Wolle
to send CRST's conciliation proposal by August 16, 2007. Wolle responded that he
preferred that the EEOC initiate the proposal process.
On August 17, 2007, Wolle and Bloomer held a telephone conversation during
which Bloomer told Wolle that the EEOC would require CRST to send a letter to past
and present employees to help identify class members who might be part of a
settlement. On August 24, 2007, Wolle telephoned Bloomer to inform her that he had
spoken with Starke's counsel and that, from that conversation, CRST had determined
that conciliation appeared futile. Wolle promised to send an email confirming CRST's
position regarding the futility of conciliation. Bloomer responded that "the next step
after conciliation would be [the] EEOC's internal decision whether to litigate on
behalf of [Starke] and the class or provide [Starke] with a [right-to-sue] letter."
The parties could reach no agreement on conciliation and, on August 28, 2007,
the EEOC notified CRST that the EEOC had "determined that its efforts to conciliate
[the Charge] as required by [Title VII] have been unsuccessful." The EEOC added
that because "further conciliation efforts would be futile or non-productive," it would
"not make further efforts to conciliate [the Charge]" and was "forwarding the case to
[its] legal unit for possible litigation."
G. The Instant Lawsuit
On September 27, 2007, the EEOC filed the instant lawsuit seeking redress for
the discrimination that Starke "and a class of similarly situated female employees of
[CRST]" allegedly endured. The EEOC brought the suit in its own name, pursuant to
Â§ 706 of Title VII, 42 U.S.C. Â§ 2000e-5, "to correct [CRST's] unlawful employment
practices on the basis of sex, and to provide appropriate relief to [Starke] and a class
of similarly situated female employees of [CRST] who were adversely affected by
such practices." The amended complaint alleged, in pertinent part, as follows:
. . . two of [CRST's] [L]ead [D]rivers subjected Starke to sexual
harassment during their supervision of Starke (including, but not limited
to, unwelcome sexual conduct, other unwelcome physical touching,
propositions of sex, and sexual comments), which further created a
sexually hostile and offensive work environment. CRST is liable for the
harm caused by the harassment and the hostile and offensive work
environment because of the actions of its [L]ead [D]rivers and because
of its failure and refusal to take prompt and appropriate action to
prevent, correct, and protect Starke from the harassment and the hostile
work environment, culminating in her discharge from employment with
Other similarly situated female employees of CRST were also
subjected to sexual harassment and a sexually hostile and offensive
work environment while working for CRST . . . .
The effect of the practices complained of in Paragraphs 7 and 8
has been to deprive Starke and a class of similarly situated female
employees of equal employment opportunities, and to otherwise
adversely affect their status as employees, because of sex.
The EEOC alleged that CRST perpetrated these actions intentionally and "with malice
or reckless indifference to the federally protected rights of Starke and the class of
similarly situated female employees.
In its prayer for relief, the EEOC sought (1) "a permanent injunction enjoining
CRST and its officers, successors, and assigns, and all persons in active concert or
participation with them, from engaging in sexual harassment, [and] any other
employment practice which discriminates on the basis of sex"; (2) an order
compelling "CRST to institute and carry out policies, practices, and programs which
provide equal employment opportunities for women, and which eradicate the effects
of its past and present unlawful employment practices"; (3) a "make[-]whole" order
awarding Starke and the class backpay and benefits with prejudgment interest; (4) an
order awarding Starke and the class compensatory damages and punitive damages;
and (5) an order awarding the EEOC the costs of this action.
From September 27, 2007, the date that the EEOC filed suit, until nearly two
years thereafter, the EEOC did not identify the women comprising the putative class
despite the district court's and CRST's repeated requests to do so. According to the
district court, "it was unclear whether the instant Section 706 lawsuit involved two,
twenty or two thousand 'allegedly aggrieved persons.'" EEOC v. CRST Van
Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 2524402, at *8 (N.D. Iowa Aug. 13,
2009) (quoting 42 U.S.C. Â§ 2000e-5(f)(1).) The district court concluded that "the
EEOC did not know how many allegedly aggrieved persons on whose behalf it was
seeking relief," but "[i]nstead . . . was using discovery to find them."3 Id. at *9.
The district court supported this conclusion with the following chronology of
discovery in the case:
On May 29, 2008, for example, the EEOC sent 2,000 letters to former
CRST female employees to solicit their participation in this lawsuit. On
September 28, 2008, the EEOC sent another 730 solicitation letters to
former CRST female employees. There was a clear and present danger
that this case would drag on for years as the EEOC conducted wideranging discovery and continued to identify allegedly aggrieved persons.
The EEOC's litigation strategy was untenable: CRST faced a
continuously moving target of allegedly aggrieved persons, the risk of
never-ending discovery and indefinite continuance of trial.
On August 8, 2008, CRST asked the court to establish a date "by
which the EEOC completes its identification of class members."
Response (docket no. 38), at 4. The EEOC responded that it had
identified "a total of 49 class members so far," predicted the "total class
will reach between 100 and 150 individuals," indicated it believed it
could identify "the bulk of the class members" by October 15, 2008, and
suggested a December 7, 2008 deadline for identifying the "class
members." Reply (docket no. 42), at 1â€“3.
On August 20, 2008, the court set a[n] October 15, 2008 deadline
for the EEOC "to disclose the identit[ies] of class members." The court
also continued the parties' previously agreed-upon discovery deadline
to January 15, 2009.
By October 15, 2008, the EEOC identified approximately 270
allegedly aggrieved persons to CRST. The number of "class members"
greatly increased in the ten days immediately preceding the deadline.
Prior to October 7, 2008, the EEOC had identified only seventy-nine
"class members" to CRST. On October 7, 2008, the EEOC identified 40
new "class members" and advised CRST that the "[i]nvestigation is
continuing." Seventh Supplement to Initial Disclosures (docket no. 2435), at 1. On October 15, 2008, the EEOC identified 119 more "class
members" and again advised CRST that the "[i]nvestigation is
continuing." Eighth Supplement to Initial Disclosures (docket no. 2436), at 1; Ninth Supplement to Initial Disclosures (docket no. 243-7), at
1; Tenth Supplement to Initial Disclosures (docket no. 243-8), at 1. Also
on October 15, 2008, the EEOC partially identified 66 additional
persons and stated [that] "the EEOC expects [that] all [of] these
individuals are class members . . . ." Eleventh Supplement to Initial
Disclosures (docket no. 243-9), at 1. Again, the EEOC stated that the
"[i]nvestigation is continuing." Id. at 1.
The total number of allegedly aggrieved persons identified or
partially identified by the EEOC by October 15, 2008[,] was much
greater than CRST had anticipated based upon the EEOC's prior
representations to the court. See, e.g., Response (docket no. 42), at 1â€“2
(EEOC estimates "the total class will reach between 100 and 150
individuals"); Scheduling Order at 2 (EEOC estimates a twenty-day
trial). Therefore, on November 6, 2008, CRST filed a "Motion under
Rule 16(f) for an Order to Show Cause Concerning the EEOC's
Identification of Class Members." Motion to Show Cause (docket no.
56). CRST alleged that the EEOC did not have a good-faith basis for
naming so many allegedly aggrieved persons; CRST accused the EEOC
of adopting a policy of "naming everyone and asking questions later"
just before the October 15, 2008 deadline. Brief in Support of Motion
to Show Cause (docket no. 56-2), at 10. CRST alleged that the EEOC
had simply added a large number of names found in CRST's human
resources files without ever speaking to those individuals. Further, the
EEOC had indicated to CRST that it reserved unto itself the option in
the future "to remove some women from this list at a later date." Id. at
. . . The court took the EEOC at its word that it had a good-faith belief
that each and every one of the approximately 270 women it had
The district court issued two orders to the EEOC, compelling the agency
to (1) immediately amend its list of 270 women as soon as it learned of any women
whose claims it no longer wished to pursue and (2) make all women on whose behalf
it sought relief available to CRST for deposition. Id. at *10. The district court warned
the EEOC that its failure to present any woman for deposition before discovery's
conclusion on January 15, 2009, would result in a "discovery sanction" forbidding
that woman from testifying at trial and barring the EEOC from seeking relief on her
behalf in the case. Id. As authority for this order, the district court "invoked its
inherent case[-]management authority" under, inter alia, Federal Rules of Civil
Procedure 26(f) and 16(b). Id. Thereafter, the EEOC made 150 of the 270 women
available for deposition, prompting the district court to honor its prior order by
precluding the EEOC from pursuing relief for the remaining 120 women. Id. at *11.
The district court, in a series of five orders, dismissed the EEOC's claims
relating to over half of these 150 women. We recite only the dismissals that the EEOC
currently appeals. In all, the EEOC appeals the district court's dismissal of its claims
as to 107 women. First, on May 13, 2009, the district court granted CRST summary
judgment against three women,4 including Starke, reasoning that the women were
judicially estopped from prosecuting their claims. EEOC v. CRST Van Expedited,
Inc., 614 F. Supp. 2d 968 (N.D. Iowa 2009). The court applied judicial estoppel
because each woman failed to disclose on her bankruptcy petition her involvement
disclosed to CRST before the deadline had an actionable claim for sex
discrimination. . . . The court expressed concern, however, that "CRST
[still] might unfairly face a 'moving target' of prospective plaintiffs as
discovery winds down and trial approaches." Order (docket no. 66), at
Id. at *9â€“10 (footnote omitted and alterations added, in part).
Starke, Christina Payne, and Robin Timmons.
or potential involvement in the instant lawsuit. Id. at 973â€“76. As part of this first
order, the district court also judicially estopped the EEOC from seeking redress for
the three women's alleged harassment. Id. at 976â€“77. Second, on June 2, 2009, the
district court granted CRST summary judgment, on the merits, as to Peeples because
she (1) failed to report her alleged harassment to CRST in a timely manner and (2)
failed to create a genuine issue of material fact as to all of the essential elements of
her retaliatory-discharge claim. EEOC v. CRST Van Expedited, Inc. No.07-CV-95LRR, 2009 WL 1586193 (N.D. Iowa June 2, 2009). Third, on June 18, 2009, the
district court granted CRST global summary judgment as to the EEOC's claims on
behalf of 11 women5 and partial summary judgment as to the EEOC's claims on
behalf of 8 others;6 the district court premised these rulings on either the individual
claimants' failure to timely report alleged sexual harassment or CRST's prompt and
effective response to the reports that it actually received. EEOC v. CRST Van
Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 1783495 (N.D. Iowa June 18, 2009).
Fourth, on July 6, 2009, the district court granted CRST summary judgment as to the
EEOC's claims on behalf of three women7 because the alleged harassment was not
sufficiently severe or pervasive. Fifth, on July 9, 2009, the district court granted
CRST summary judgment as to the EEOC's claims on behalf of, inter alia, 25 women8
Bonnie Batyik, Bethany Broeker, Kim Chisholm, Samantha Cunningham,
Denise Desonier, Maybi Fernandez-Fabre, Ginger Laudermilk, Verona McIver, Faith
Shadden, Rachel Tucker, and Diana Vance.
Pamela Barlow, Peggy Blake, Donna Dickson, Nicole Edwards, Zelestine
Grant, Martha Griffin, Carole Pettit, and Rhonda Wellman.
Victoria Holmes, January Jackson, and Tillie Jones.
Antoinette Baldwin, Mary Beaton, Catherine Coronado, Dorothy Dockery,
Catherine (Granofsky)-Fletcher, Debra Hindes, Tracy Hughes, January Jackson,
Patricia Marzett, Virginia Mason, Lucinda McBlair, Bonnie Moesch, Sherry
O'Donnell, Christina Payne, Tammi Pile, Sharon Pinchem, Peggy Pratt, Danette
Quintanilla, Kathleen Seymour, Jonne Shepler, Linda Skaggs, Mary "Emily" Smith,
Jennifer Susson, Robin Timmons, and Betsy Ybarra.
for their failure to timely report alleged harassment and/or the lack of severity or
pervasiveness of the alleged harassment. EEOC v. CRST Van Expedited, Inc., No. 07CV-95-LRR, 2009 WL 2068386 (N.D. Iowa July 9, 2009).
Finally, on August 13, 2009, the district court barred the EEOC from seeking
relief for the remaining 67 women after concluding that the EEOC had failed to
conduct a reasonable investigation and bona fide conciliation of these
claimsâ€”statutory conditions precedent to instituting suit. EEOC v. CRST Van
Expedited, Inc., No. 07-CV-95-LRR, 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009).
Having disposed of all the allegedly aggrieved women in the EEOC's putative "class,"
the district court dismissed the EEOC's complaint.
We now consider three consolidated appeals: (1) Starke's and Peeples's joint
appeal,9 in which Starke appeals the summary judgment of her case on judicial
estoppel grounds and additionally joins Peeples in appealing summary judgment on
the merits; (2) the EEOC's first numbered appeal,10 consolidated with Starke's and
Peeples's, in which the EEOC appeals the district court's multiple dispositive rulings
that we recounted above; and (3) the EEOC's second numbered appeal,11 in which it
challenges the district court's award of attorneys' fees.
A. EEOC's Investigation and Conciliation
In its first point on appeal, the EEOC urges that we reverse the district court's
decision to bar the EEOC from pursuing claims as to 67 women based on its failure
to reasonably investigate or good-faith conciliate. We hold that the district court did
Appeal No. 09-3764
Appeal No. 09-3765
Appeal No. 10-1682
not err in dismissing the EEOC's claims as to 67 women for its failure to investigate
and conciliate them.
1. Overview of Title VII's Pre-suit Requirements
Section 706 of Title VII, the provision under which the EEOC sued, authorizes
the EEOC to bring suit in its own name, on behalf of a "person or persons aggrieved"
by the employer's unlawful employment practice. 42 U.S.C. Â§ 2000e-5(f)(1); accord
Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 324 (1980) ("Given the clear purpose
of Title VII, the EEOC's jurisdiction over enforcement, and the remedies available,
the EEOC need look no further than Â§ 706 for its authority to bring suit in its own
name for the purpose, among others, of securing relief for a group of aggrieved
individuals."). However, "[a]s originally enacted[,] Title VII did not empower the
[EEOC] to sue employers to enforce the Act." EEOC v. Hickey-Mitchell Co., 507 F.2d
944, 947 (8th Cir. 1974) (citing Act of July 2, 1964, Pub. L. 88-352, tit. VII, 78 Stat.
Rather, "[c]ooperation and voluntary compliance were selected as the
preferred means for achieving" equality of employment opportunities.
Voluntary compliance proved elusive, however, as more than half of the
EEOC's conciliation efforts were deemed unsuccessful. Consequently,
Congress enacted the Equal Employment Opportunity Act of 1972
which amended Title VII to permit the EEOC suits. The statutory
mandate that the EEOC attempt conciliation was not abandoned,
however, and the Act expressly conditions the EEOC's power of suit on
its inability to "secure from the respondent a conciliation agreement
acceptable to the EEOC."
Id. (internal footnotes omitted); accord Occidental Life Ins. Co. of Cal. v. EEOC, 432
U.S. 355, 368 (1977).
Thus, "[i]n the Equal Employment Opportunity Act of 1972, Congress
established an integrated, multistep enforcement procedure culminating in the
EEOC's authority to bring a civil action in a federal court." Occidental Life Ins. Co.,
432 U.S. at 359 (internal footnote omitted). First, an employee files with the EEOC
a charge "alleging that an employer has engaged in an unlawful employment
practice." Id. Second, "[t]he EEOC is then required to investigate the charge and
determine whether there is reasonable cause to believe that it is true." Id. If reasonable
cause does exist, the EEOC moves to the third step, which attempts to remedy the
objectionable employment practice through the informal, nonjudicial means "'of
conference, conciliation, and persuasion.'" Id. (quoting 42 U.S.C. Â§ 2000e-5(b)).
However, if unsuccessful, the EEOC may move to the fourth and final step and bring
a civil action to redress the charge. Id. at 359â€“60 (quoting 42 U.S.C. Â§ 2000e-5(f)(1)).
As we have recognized, the EEOC's "'power of suit and administrative process
[are not] unrelated activities, [but] sequential steps in a unified scheme for securing
compliance with Title VII.'" Hickey-Mitchell Co., 507 F.2d at 948 (alterations in
original) (emphasis added) (quoting EEOC v. E.I. DuPont de Nemours & Co., 373 F.
Supp. 1321, 1333 (D. Del. 1974)); accord EEOC v. Am. Nat'l Bank, 652 F.2d 1176,
1185 (4th Cir. 1981).
2. Adequacy of the EEOC's Investigation and Conciliation
The district court barred the EEOC from pursuing claims as to 67 women based
on its conclusion that "the EEOC did not investigate, issue a reasonable cause
determination or conciliate the claims." CRST Van Expedited, Inc., 2009 WL
2524402, at *19. On appeal, the EEOC avers that the district court wrongly concluded
that the EEOC's investigation, resulting reasonable-cause determination, and
conciliation were insufficient to satisfy Â§ 706. It argues that the district court (1)
misconstrued the EEOC's efforts through serial requests for information to investigate
discrimination suffered by persons other than Starke; and (2) incorrectly assumed that
the "EEOC had to investigate, issue a cause finding [regarding], and conciliate each
individual instance of CRST's failure to respond appropriately to a harassment
complaint." The EEOC contends that it "needed only to investigate, issue a cause
finding as to, and conciliate each type of discrimination alleged."
In its analysis, the district court acknowledged that "the EEOC was entitled to
expand its investigation of Starke's Charge and consider whether CRST had tolerated
the sexual harassment of other female drivers." Id. at *15. It noted that, during the
course of its investigation, the EEOC did discover "the allegations of a number of
other female drivers, including Essig, Morgan, Peeples and Thiel." Id. (concluding
that these female drivers' allegations of sexual harassment grew out of the EEOC's
investigation of Starke's Charge). The court also recognized that it could "not secondguess the EEOC's finding in the Letter of Determination that," inter alia, reasonable
cause existed "'to believe that [CRST] ha[d] subjected a class of employees and
prospective employees to sexual harassment, in violation of Title VII.'" Id.
Nevertheless, the court determined that, based on the factual record in this case,
"the EEOC did not conduct any investigation of the specific allegations of the
allegedly aggrieved persons for whom it seeks relief at trial before filing the
Complaintâ€”let alone issue a reasonable cause determination as to those allegations
or conciliate them." Id. at *16. The district court concluded that the EEOC "wholly
abandoned its statutory duties as to the remaining 67 allegedly aggrieved persons for
whom the EEOC . . . intend[ed] to seek relief at trial." Id. The court based its
conclusion upon the following, undisputed facts:
The EEOC did not investigate the specific allegations of any of
the 67 allegedly aggrieved persons until after the Complaint was
filed. For example, the EEOC did not interview any witnesses or
subpoena any documents to determine whether any of their
allegations were true.
The EEOC did not identify any of the 67 allegedly aggrieved
persons as members of the Letter of Determination's "class" until
after it filed the Complaint. Indeed, prior to filing the Complaint,
CRST enquired as to the size of the "class[,]" and the EEOC
responded that it did not know.
The EEOC did not make a reasonable[-]cause determination as to
the specific allegations of any of the 67 allegedly aggrieved
persons prior to filing the Complaint. Indeed, at the time the
EEOC issued the Letter of Determination on July 12, 2007, 27 of
the remaining 67 allegedly aggrieved persons had not yet been
sexually harassed. Indeed, most of these 27 women allege they
were sexually harassed after the instant lawsuit was filed.
Although 38 of the remaining 40 allegedly aggrieved persons
allege [that] they were sexually harassed before the EEOC issued
the Letter of Determination on July 12, 2007, the EEOC admits
that it was not even aware of their allegations until after the filing
of the Complaint. The EEOC used discovery in the instant lawsuit
to find them.
The EEOC did not attempt to conciliate the specific allegations of
the 67 allegedly aggrieved persons prior to filing the Complaint.
Id. (internal footnote omitted).
The EEOC's suit alleging multiple acts of discrimination by CRST arose out
of Starke's single initiating charge. Relevant precedents permit such an expansion by
the EEOC, so long as the EEOC satisfies all of its pre-suit obligations for each
additional claim. The Supreme Court has observed that when the EEOC brings suits
under Â§ 706 on behalf of a group of aggrieved persons, the EEOC is "master of its
own case." EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002). And, as a general
rule, "the nature and extent of an EEOC investigation into a discrimination claim is
a matter within the discretion of that agency." EEOC v. KECO Indus., Inc., 748 F.2d
1097, 1100 (6th Cir. 1984).
Although "the EEOC enjoys wide latitude in investigating and filing lawsuits
related to charges of discrimination, Title VII limits that latitude to some degree by
'plac[ing] a strong emphasis on administrative, rather than judicial, resolution of
disputes.'" U.S. Equal Opportunity Comm'n v. Dillard's Inc., No. 08â€“CVâ€“1780â€“IEG
(PCL), 2011 WL 2784516, at *5 (S.D. Cal. July 14, 2011) (slip op.) (quoting
E.E.O.C. v. Jillian's of Indianapolis, Ind., Inc., 279 F. Supp. 2d 974, 979 (S.D.
Ind.2003)). For our part, we have recognized that
[t]he permissible scope of an EEOC lawsuit is not confined to the
specific allegations in the charge; rather, it may extend to any
discrimination like or related to the substance of the allegations in the
charge and which reasonably can be expected to grow out of the
investigation triggered by the charge. The original charge is sufficient
to support EEOC action, including a civil suit, for any discrimination
stated in the charge or developed during a reasonable investigation of
the charge, so long as the additional allegations of discrimination are
included in the reasonable cause determination and subject to a
EEOC v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992) (emphasis added).
Thus, while "[t]he EEOC may seek relief on behalf of individuals beyond the
charging parties and for alleged wrongdoing beyond those originally charged," it
"must discover such individuals and wrongdoing during the course of its
investigation." Dillard's Inc., 2011 WL 2784516, at *6 (citing Jillian's, 270 F. Supp.
2d at 980; EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th Cir. 1996)
("[The] EEOC may allege in a complaint whatever unlawful conduct it has uncovered
during the course of its investigation, provided that there is a reasonable nexus
between the initial charge and the subsequent allegations in the complaint."); EEOC
v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir.1996) ("[The EEOC] may, to the
extent warranted by an investigation reasonably related in scope to the allegations of
the underlying charge, seek relief on behalf of individuals beyond the charging parties
who are identified during the investigation."); Weigel v. Baptist Hospital of E. Tenn.,
302 F.3d 367, 380 (6th Cir. 2002) ("[W]here facts related with respect to the charged
claim would prompt the EEOC to investigate a different, uncharged claim, the
plaintiff is not precluded from bringing suit on that claim." (internal quotation marks
omitted); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) ("[T]he
jurisdictional scope of [an individual] Title VII claimant's court action depends upon
the scope of both the EEOC charge and the EEOC investigation.â€) (internal quotation
marks omitted)). "The relatedness of the initial charge, the EEOC's investigation and
conciliation efforts, and the allegations in the complaint is necessary to provide the
defendant-employer adequate notice of the charges against it and a genuine
opportunity to resolve all charges through conciliation." Id. (citing EEOC v. Outback
Steak House of Fla., Inc., 520 F. Supp. 2d 1250, 1263 (D. Colo. 2007) (citing EEOC
v. Am. Nat'l Bank, 652 F.2d 2276, 1185 (4th Cir. 1981)).
In summary, while we recognize that "[t]he EEOC enjoys significant latitude
to investigate claims of discrimination, and to allege claims in federal court based on
the results of its investigations," we find "a clear and important distinction between
'facts gathered during the scope of an investigation and facts gathered during the
discovery phase of an already-filed lawsuit.'" Id. at *7 (quoting Jillian's, 279 F. Supp.
2d at 982).12 "Where the scope of its pre-litigation efforts are limitedâ€”in terms of
In Jillian's, the district court explained that
[i]t was only after conducting discovery with respect to its original
complaint that the EEOC decided to expand its lawsuit to include a
nationwide class. The Seventh Circuit approached this issue in Walner,
where it impliedly distinguished between facts gathered during the
scope of an investigation and facts gathered during the discovery phase
of an already-filed lawsuit. "We wholeheartedly agree with EEOC's
point that it may obtain relief for instances of discrimination that it
discovers during an investigation of a timely charge . . . . However, these
investigations may not be accomplished through a process of discovery
that follows a complaint based upon an insufficient charge of
discrimination." Id. at 971â€“972 (emphasis added). We conclude that the
same standard must be applied to the relationship between the lawsuit
and its underlying investigation as is applied to the relationship between
the lawsuit and its underlying charge.
geography, number of claimants, or nature of claimsâ€”the EEOC 'may not use
discovery in the resulting lawsuit 'as a fishing expedition' to uncover more
violations.'" Id. (quoting EEOC v. Target Corp., No. 02â€“Câ€“146, 2007 WL 146128
(E.D. Wis. May 16, 2007) (citing Walner, 91 F.3d at 971)).
Here, after Bloomer discovered during the course of her investigation that
Essig, Morgan, Peeples, and Thiel "had filed formal charges of discrimination against
CRST for alleged sexual harassment," the EEOC requested that "CRST provide 'a
copy of all other [c]harges of [d]iscrimination that [CRST] has received in the past
five years from any government agency that alleges sexual harassment.'" CRST Van
Expedited, Inc., 2009 WL 2524402, at *3. It additionally requested that CRST
provide "'the name, gender, home address, and home telephone number of all
employees that were trained by either [Smith] and/or [Goodman],' including 'the dates
of the training and documentation of any complaints made against these two trainers
by any of these trainees.'" Id. The EEOC later requested information for "female
driver[s] that began [their] employment on or after January 1, 2005." Id. at *4.
Although CRST felt that the EEOC's request for such information was "overly
broad," it ultimately "mailed the remainder of the information to the EEOC on a
computer disc." Id. at *5. Thereafter, the EEOC issued a Letter of Determination to
CRST, stating, inter alia, that "'there is reasonable cause to believe that [CRST] has
subected a class of employees and prospective employees to sexual harassment, in
violation of Title VII.'" Id. at *6.
"The Letter of Determination did not provide CRST with any notice as to the
size of the 'class of employees and prospective employees [subjected] to sexual
harassment.'" Id. at *8. And, during conciliation, the EEOC was unable "to provide
[CRST] names of all class members . . . , or an indication of the size of the class." Id.
at *7. Likewise, "the EEOC's Complaint provides no indication of how many
Id. at 981â€“82.
'similarly situated female employees' the EEOC alleged to exist." Id. at *8. It was not
until after the commencement of the instant suit that the EEOC sought to ascertain
the size of the class. See id. at *9 ("On May 29, 2008, for example, the EEOC sent
2,000 letters to former CRST female employees to solicit their participation in this
lawsuit. On September 28, 2008, the EEOC sent another 730 solicitation letters to
former CRST female employees. There was a clear and present danger that this case
would drag on for years as the EEOC conducted wide-ranging discovery and
continued to identify allegedly aggrieved persons. The EEOC's litigation strategy was
untenable: CRST faced a continuously moving target of allegedly aggrieved persons,
the risk of never-ending discovery and indefinite continuance of trial."). The number
of purported class members continuously changed throughout the discovery process.
See id. at *9â€“10. Ultimately, the EEOC identified 67 members of the "class." Id. at
The EEOC's aforementioned conduct demonstrates that it did not reasonably
investigate the class allegations of sexual harassment "during a reasonable
investigation of the charge." Delight Wholesale Co., 973 F.2d at 668. Instead, it
engaged in fact-gathering as to the "class" "during the discovery phase of an alreadyfiled lawsuit." Dillard's Inc., 2011 WL 2784516, at *7 (quotation and citation
omitted). Our review of the undisputed facts demonstrates that the EEOC was
"us[ing] discovery in the resulting lawsuit as a fishing expedition to uncover more
violations." Id. (quotation and citation omitted). "[T]he EEOC did not investigate the
specific allegations of any of the 67 allegedly aggrieved persons [, i.e., the class
members,] until after the Complaint was filed." CRST Van Expedited, Inc., 2009 WL
2524402, at *16 (emphasis added). Tellingly,
at the time the EEOC issued the Letter of Determination on July 12,
2007, 27 of the remaining 67 allegedly aggrieved persons had not yet
been sexually harassed. Indeed, most of these 27 women allege they
were sexually harassed after the instant lawsuit was filed. Although 38
of the remaining 40 allegedly aggrieved persons allege they were
sexually harassed before the EEOC issued the Letter of Determination
on July 12, 2007, the EEOC admits that it was not even aware of their
allegations until after the filing of the Complaint.
Absent an investigation and reasonable cause determination apprising the
employer of the charges lodged against it, the employer has no meaningful
opportunity to conciliate. See EEOC v. Gen. Elec. Co., 532 F.2d 359, 366 n.14 (4th
Cir. 1976) ("Since the determination of reasonable cause defines the framework for
conciliation, it follows that the issues to be litigated here must be those which can
fairly be said to be encompassed within the determination resulting from the
[initiating] charge.") (quotations and citation omitted).13
Moreover, contrary to the EEOC's contention, the district court did not abuse
its discretion in opting to dismiss, rather than stay, the EEOC's complaint as to these
67 women. Under Â§ 706(f)(1) of Title VII, "[u]pon request, the court may, in its
discretion, stay further proceedings for not more than sixty days pending . . . further
efforts of the EEOC to obtain voluntary compliance." 42 U.S.C. Â§ 2000e-5(f)(1)
"Notably, the EEOC did not allege that CRST was engaged in 'a pattern or
practice' of illegal sex-based discrimination or otherwise plead a violation of Section
707 of Title VII, 42 U.S.C. Â§ 2000e-6." CRST Van Expedited, Inc., 2009 WL
2524402, at *7 n.14. The district court had "assumed [that] the EEOC had the right
to maintain a pattern-or-practice claim in this case but dismissed it with prejudice.
The court held as a matter of law that there was insufficient evidence from which a
reasonable jury could find that it was CRST's 'standard operating procedure' to
tolerate sexual harassment." Id. We, like the district court, "express no view as to
whether the EEOC's investigation, determination and conciliation of Starke's Charge
would be sufficient to support a pattern[-]or-practice lawsuit." Id. at *16 n.21 (citing
EEOC v. Dial Corp., 156 F. Supp. 2d 926, 934â€“44 (N.D. Ill. 2001) (permitting the
EEOC to use discovery to find more victims of sexual harassment in a pattern-orpractice case)).
(emphasis added). The EEOC concedes in its brief that our review of the district
court's decision to stay or dismiss an EEOC suit for failure to satisfy Title VII's presuit requirements is for abuse of discretion. In its order below, the district court
concluded that "[h]ere, dismissal is a severe but appropriate remedy," footnoting that
it "might have stayed the instant action for further conciliation in lieu of dismissal"
"[h]ad the EEOC not wholly abdicated its role in the administrative process." CRST
Van Expedited, Inc., 2009 WL 2524402, at *19 & n.24. The present record confirms
that the EEOC wholly failed to satisfy its statutory pre-suit obligations as to these 67
women, thus we cannot conclude that the district court abused its discretion in
dismissing the EEOC's suit.
B. Judicial Estoppel
1. Judicial Estoppel as Applied to Starke, Payne, and Timmons
The district court also granted summary judgment on the individual claims of
Starke, Payne, and Timmons, and also on the EEOC's claims on their behalf. CRST
Van Expedited, Inc., 614 F. Supp. 2d at 973â€“77. Specifically, the district court
concluded that, because each of the three women failed to disclose her involvement
in the instant lawsuit as a potential source of income on her bankruptcy petition, she
is judicially estopped from seeking relief. Id. Likewise, the district court also applied
judicial estoppel to the EEOC, precluding the EEOC from seeking redress in its own
Â§ 706 suit for harassment that Starke, Payne, or Timmons allegedly suffered. Id. at
In October 2005, Starke and her husband filed, in the federal bankruptcy court
for the Northern District of Texas, a voluntary petition as joint debtors praying for
protection under Chapter 7 of the Bankruptcy Code. They did not include a claim for
sexual harassment among their contingent assets in their petition, nor did they amend
their petition at anytime between December 2005, when Intervener Starke initially
filed her administrative charge of discrimination with the EEOC, or March 2006,
when the bankruptcy court fully discharged their debts. In December 2008, three
months after intervening in the instant lawsuit and over one year after the EEOC filed
it, Starke moved to reopen her and her husband's joint bankruptcy to add the claim as
a potential asset.
Similarly, in October 2005, Payne filed, in federal bankruptcy court for the
Southern District of Ohio, a voluntary petition under the name of "Christina Sprinkle"
for protection under Chapter 13 of the Bankruptcy Code. Payne omitted from her list
of assets any potential claim against CRST for sexual harassment. After the EEOC
filed the instant lawsuit in September 2007, Payne did not amend her petition's asset
schedules to include the claim. On May 24, 2010, Payne received a full discharge.
In March 2008, Timmons and her husband filed, in federal bankruptcy court
for the Western District of Missouri, a voluntary petition as joint debtors seeking
protection under Chapter 7 of the Bankruptcy Code. Timmons did not disclose any
potential cause of action against CRST and, in June 2008, she and her husband
received a full discharge.
We review for abuse of discretion a district court's invocation of judicial
estoppel. Triple H Debris Removal, Inc. v. Companion Prop. & Cas. Ins. Co., 647
F.3d 780, 785 (8th Cir. 2011) (citing Capella Univ., Inc. v. Exec. Risk Specialty Ins.
Co., 617 F.3d 1040, 1051 (8th Cir. 2010)). We apply this deferential standard of
review based on our acknowledgment that the district court is best equipped to decide
judicial estoppel's applicability "because determining whether a litigant is playing fast
and loose with the courts has a subjective element and its resolution draws upon the
trier's intimate knowledge of the case at bar and his or her first-hand observations of
the lawyers and their litigation strategies." Stallings v. Hussman Corp., 447 F.3d
1041, 1046 (8th Cir. 2006) (quotation, alteration, and citation omitted). We will
uphold the district court's decision to apply judicial estoppel "unless it plainly appears
that the court committed a clear error of judgment in the conclusion it reached upon
a weighing of the proper factors." Id. at 1046â€“47 (quotations and citation omitted).
As an initial matter, we need not address Starke's contention that the district
court abused its discretion in judicially estopping her from prosecuting her intervener
claims against CRST. Starke alleges in her brief that the district court failed to
consider certain mitigating factors counseling against judicial estoppel's application.
Specifically, Starke maintains that she inadvertently failed to include her intervener
claim in his bankruptcy petition. She claims that the language barrier created by her
German birth and consequent lack of fluency in English limited her ability to assist
her bankruptcy counsel. Starke also notes that, "as soon as [she] learned that her claim
against CRST should have been disclosed, [she] took immediate steps to have the
bankruptcy reopened and her filings amended to contain the claim against CRST."
However, Starke's counsel conceded at oral argument that, under the Supreme Court's
and our precedents, Starke is judicially estopped from asserting her Title VII claim.
In light of this concession, we need not address Starke's appeal of the district court's
decision to judicially estop Starke from pursuing her intervener claims against CRST,
and we instead consider only whether the district court abused its discretion in
judicially estopping Payne and Timmons. See United States v. Amerson-Bey, 898 F.2d
681, 681 n.2 (8th Cir. 1990) (ignoring defendant-appellant's contention in his brief
that the district court had erroneously allowed the prosecutor to misstate the law
because, "[a]t oral argument, counsel conceded that this contention was without
As the Supreme Court has explained, the doctrine of judicial estoppel
"'generally prevents a party from prevailing in one phase of a case on an argument
and then relying on a contradictory argument to prevail in another phase.'" New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich, 530
U.S. 211, 227 n.8 (2000)). By logical extension, "[j]udicial estoppel [also] prevents
a person who states facts under oath during the course of a trial from denying those
facts in a second suit, even though the parties in the second suit may not be the same
as those in the first." Stallings, 447 F.3d at 1047 (quotations and citation omitted).
This doctrine "protects the integrity of the judicial process." Id. (quotations and
citation omitted). Although "[t]he circumstances under which judicial estoppel may
appropriately be invoked are probably not reducible to any general formulation of
principle," id. (citing New Hampshire, 532 U.S. at 750), the Supreme Court, in New
Hampshire v. Maine, articulated a non-exhaustive list of "[t]hree factors . . . [to] aid
a court in determining whether to apply the doctrine," id. (citing New Hampshire, 532
U.S. at 751).
"First, a party's later position must be clearly inconsistent with its earlier
position. Second, courts regularly inquire whether the party has
succeeded in persuading a court to accept that party's earlier position, so
that judicial acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the second court was
misled. Absent success in a prior proceeding, a party's later inconsistent
position introduces no risk of inconsistent court determinations, and thus
poses little threat to judicial integrity. A third consideration is whether
the party seeking to assert an inconsistent position would derive an
unfair advantage or impose an unfair detriment on the opposing party if
Id. (quoting New Hampshire, 532 U.S. at 750â€“51).
Taking each factor in turn, we conclude that the district court did not abuse its
discretion by judicially estopping Payne and Timmons from pursuing their respective
claims insofar as they may seek to subsequently intervene in the EEOC's action or
otherwise seek relief individually. Notably, with respect to the first factor concerning
a clear inconsistency between former and subsequent positions, we have observed
that, "[i]n the bankruptcy context, a party may be judicially estopped from asserting
a cause of action not raised in a reorganization plan or otherwise mentioned in the
debtor's schedules or disclosure statements." Id. Estoppel may apply because "a
debtor's failure to list a claim in the mandatory bankruptcy filings is tantamount to a
representation that no such claim existed." Id. (quotations and citation omitted). As
recounted above, none of the women disclosed their involvement or potential
involvement in this action.
"The second New Hampshire factor requires that the bankruptcy court have
adopted the debtor's position." Id. at 1048. This factor might be satisfied "where the
bankruptcy court issues a 'no asset' discharge," thereby evidencing that "the
bankruptcy court has effectively adopted the debtor's position." Id. Again, as already
noted, Payne, and Timmons each procured a full discharge without disclosing her
potential claim against CRST. In contrast, in Stallings, we found "no judicial
acceptance of Stallings's inconsistent position" because "the bankruptcy court never
discharged Stallings's debts based on the information that Stallings provided in his
schedules." Id. at 1149. Payne filed her bankruptcy petition in 2005, prior to the
institution of suit, but that does not spare her from possible judicial estoppel. Under
the principles of judicial estoppel, she was still obliged to amend her petition to
disclose her involvement or potential involvement in the post-petition lawsuit. Id. at
1148. As we stated in Stallings,
a debtor who files h[er] bankruptcy petition, subsequently receives a
right-to-sue letter from the EEOC, and then fails to amend h[er]
bankruptcy petition to add h[er] lawsuit against h[er] employer as a
potential asset is estopped from bringing the lawsuit because the debtor
"knew about the undisclosed claims and had a motive to conceal them
from the bankruptcy court." DeLeon v. Comcar Indus., Inc., 321 F.3d
1289, 1291 (11th Cir. 2003).
"Under the final New Hampshire factor, the debtor's non-disclosure of the
claim must not be inadvertent and must result in the debtor gaining an unfair
advantage." Id. We have stressed that, pursuant to this third factor, a district court
should not judicially estop a debtor whose prior inconsistent position was attributable
to "a good-faith mistake rather than as part of a scheme to mislead the court." Id.
(quotations and citation omitted); accord New Hampshire, 532 U.S. at 753 ("We do
not question that it may be appropriate to resist application of judicial estoppel when
a party's prior position was based on inadvertence or mistake." (quotations and
citation omitted)). That said, no evidence of any such good-faith error or omission is
present in this case. In fact, some evidence suggests otherwise. As already noted,
Starke herself concedes that the district court correctly judicially estopped her. Also,
Timmons and her husband filed their joint petition an entire year after the EEOC
instituted suit in this matter, indicating, at the very least, that they had notice of
Timmons's potential claim.
Finally, as the district court noted, "[t]he actions of . . . Ms. Timmons are
especially galling" because she "used the bankruptcy process to discharge or reduce
debts owed to CRST and now seek[s] to recover funds from CRST free and clear of
the bankruptcy process." CRST Van Expedited, Inc., 614 F. Supp. 2d at 975 (citing
New Hampshire, 532 U.S. at 750. "'Where a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if
it be to the prejudice of the party who has acquiesced in the position formerly taken
by him.'" New Hampshire, 532 U.S. at 749 (emphasis added) (quoting Davis v.
Wakelee, 156 U.S. 680, 689 (1895))).
Accordingly, based on this record, we cannot conclude that the district court
abused its discretion in judicially estopping Payne or Timmons from individually
pursuing their respective claims against CRST for sexual harassment.
2. Judicial Estoppel as Applied to EEOC
The district court also invoked judicial estoppel to bar the EEOC from seeking
any remedy on Starke's, Payne's, and Timmons's behalf. Specifically, the district court
asserted that "[t]he judicial estoppel doctrine applies part-and-parcel to the EEOC,
notwithstanding the fact that it is the "master of its own case" and "does not merely
stand in the shoes of the allegedly aggrieved persons for whom it seeks relief in this
action under [Â§ 706 of Title VII]." Id. at 976.
On appeal, the EEOC argues that the district court abused its discretion in
applying judicial estoppel to the EEOC because the EEOC did not assert an
inconsistent position in a prior proceeding. Rather, the EEOC maintains, the past
representations of Intervener Starke, Payne, and Timmons, do not bind the EEOC
because, in its present posture as a plaintiff suing in its own name under Â§ 706, "[the]
EEOC does not merely stand in their shoes, and [the] EEOC's litigation does not exist
simply to seek relief on their behalf." (Citing Waffle House, 534 U.S. at 296â€“98.)
According to the EEOC, it "filed this litigation not for the personal benefit of any
particular claimant, but for the broader public interest in enforcing Title VII and
ensuring CRST maintains a workplace free from discrimination."
In response, CRST concedes that "[n]o federal appellate court has yet ruled on
this issue" of whether a court can judicially estop the EEOC from bringing suit in its
own name to remedy allegedly unlawful employment practices because those
practices were perpetrated against an employee who herself is judicially estopped.
CRST urges, nevertheless, that the district court did not abuse its discretion in
judicially estopping the EEOC. Noting that judicial estoppel's chief purpose "is to
protect the integrity of the judicial process," CRST avers that, "[w]hile the individual
claimants in an EEOC enforcement action may not technically be parties to the case,
their prior inconsistent representations to another court pose no less of a threat to the
integrity of the judicial process."
Upon review, we concur with the EEOC that the district court abused its
discretion in judicially estopping the EEOC from suing in its own name to correct any
discriminatory employment practices that CRST allegedly perpetrated against the
three women. The district court's and CRST's contrary position is inconsistent with
the realities of the EEOC's role as a plaintiff in its own name under Â§ 706 and with
the basic principles of the judicial estoppel doctrine.
As the Supreme Court has emphasized, "[g]iven the clear purpose of Title VII,
the EEOC's jurisdiction over enforcement, and the remedies available, the EEOC
need look no further than Â§ 706 for its authority to bring suit in its name for the
purpose, among others, of securing relief for a group of aggrieved individuals." Gen.
Tel. Co., 446 U.S. at 324; see also Occidental Life Ins. Co., 432 U.S. at 368 ("The
EEOC does not function simply as a vehicle for conducting litigation on behalf of
private parties . . . ."). In Waffle House, the Supreme Court considered "whether an
agreement between an employer and an employee to arbitrate employment-related
disputes bars the EEOC from pursuing victim-specific judicial relief, such as
backpay, reinstatement, and damages, in an enforcement action alleging that the
employer has violated Title I of the . . . ADA."14 534 U.S. at 282. The Fourth Circuit
had held that, insofar as the EEOC was suing in its own capacity under Â§ 706 to
vindicate the public interest in discrimination-free workplaces, the EEOC was limited
to seeking general injunctive relief and could not also seek victim-specific relief on
behalf of a victim who himself was subject to a binding arbitration agreement. Id. at
290. The Supreme Court reversed, concluding that such an arbitration agreement
between the employer and employee did not preclude the EEOC from suing in federal
court to seek victim-specific relief relating to the employee's injury. Id. at 298.
Specifically, the Supreme Court reasoned that "[t]here is no language in the statutes
or in either of these cases suggesting that the existence of an arbitration agreement
between private parties materially changes the EEOC's statutory function or the
Although Waffle House is technically an ADA case, the Court observed at the
outset of its opinion that "Congress has directed the EEOC to exercise the same
enforcement powers, remedies, and procedures that are set forth in T