United States: Court Uses Novel Issue Certification Device To Sidestep Individualized Issues Otherwise Precluding Class Certification

Seyfarth Synopsis:  A group of female truck drivers sued their employer for policies allegedly resulting in a hostile work environment for and retaliation against women who complained of sexual harassment on the job.  Under Rules 23(b)(3) and 23(c)(4), the U.S. District Court for the Northern District of Iowa certified both a hostile work environment class and retaliation class on issues relating to the employer's liability.  Such certification was made possible by the drivers' bifurcation proposal, which involved a representative trial on aspects of liability and individualized trials on remaining aspects of liability and damages.  Employers should take note that there is a trend among some federal courts to use Rule 23 in novel ways to certify classes of employees to avoid confronting issues that, traditionally, would preclude class certification.

***

Class actions are supposed to promote the efficiency and economy of litigation by allowing the claims of a group of individuals with the same claims to be decided in one proceeding.  Many claims brought in the employment context, such as hostile work environment and retaliation claims, are not amenable to class treatment, but some courts have taken an expansive reading of Rule 23 to allow certification of classes even when resolution of the class claims would not resolve the claims of the individual class members.  This is precisely what happened in Sellars v. CRST Expedited, Inc., No. 15-CV-117 (N.D. Iowa Mar. 30, 2017), where Chief Judge Leonard T. Strand of the U.S. District Court for the Northern District of Iowa certified classes alleging hostile work environment and retaliation even though individualized trials would be required to establish remaining issues of liability and damages for each individual class member.

Case Background

Plaintiffs, three female truck drivers, brought claims under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act against their employer, CRST Expedited, Inc. ("CRST").  Id. at 3.  CRST employs thousands of truck drivers on two-person teams, so that one driver can sleep while the other drives.  Id.  Plaintiffs alleged that CRST maintained patterns or practices of discrimination amounting to a hostile work environment and retaliation toward female drivers who reported sexual harassment.  Id.

Specifically, Plaintiffs alleged that three practices of CRST created a hostile work environment, including: (a) failing to find a harassment complaint corroborated without an admission by the accused himself or a third-party's eyewitness account; (b) failing to discipline male drivers even when a harassment complaint was corroborated; and (c) tolerating the failure of responsible employees to act promptly in the face of a harassment complaint and instead encouraging the accuser to keep driving with the accused.  Id. at 8-15.

Plaintiffs also alleged that three practices of CRST constituted retaliation against female drivers who reported harassment, including: (a) requiring an accuser to exit the truck upon complaining and thereby precluding her from earning wages by continuing to drive; (b) forcing accusers to cover transit and lodging costs after exiting the truck; and (c) extending student-driver training for those student-driver accusers who were forced to exit the truck after complaining of harassment. Id. at 13-18.

Based on evidence which included testimony from CRST employees and eight female drivers supporting the foregoing allegations, Plaintiffs moved for certification of two classes under Rule 23, including: (a) female drivers subjected to a hostile work environment based on sex ("Hostile Work Environment Class"); and (b) female drivers subjected to retaliation in response to complaints of sexual harassment ("Retaliation Class").  Id. at 23-24.  Plaintiffs also moved to certify a California-only class of female drivers.  Id. at 24.

The Court's Decision

In a lengthy opinion, Judge Strand certified the Hostile Work Environment and Retaliation Classes only with respect to particular issues under Rule 23(b)(3) and Rule 23(c)(4), but denied certification of the California-only classes.

The Court's decision to certify the classes depended heavily upon Plaintiffs' proposal of bifurcating the case into two phases.  Id. at 28, 46.  Under Plaintiffs' proposal, Phase I – the "liability" phase, as the Court characterized it – would determine whether CRST: (a) created or tolerated a hostile work environment; and (b) retaliated against women based on sex.  If such liability were established, each case would then proceed to Phase II to determine in individual trials whether: (a) each plaintiff subjectively believed the work environment to be hostile (a finding required to prove a hostile work environment claim and, therefore, a part of liability omitted from Phase I's "liability" trial); and (b) damages.  Id. at 28, 40 n.15.

In finding that liability issues for the Hostile Work Environment Class satisfied Rule 23(a) and 23(b)(3), the Court found that all three of Plaintiffs' theories of discrimination provided common questions of law and fact which predominated over individual questions affecting the claim.  Id. at 27-39 & 43-48.  The Court emphasized that the fact that Plaintiffs would attempt to prove those theories through one-off accounts of individual employees did not preclude certification.  Id. at 35 ("Plaintiffs' reliance on anecdotal evidence to establish a pattern or practice does not defeat commonality") (citations omitted)).

In finding that liability issues for the Retaliation Class also satisfied Rule 23(a) and 23(b)(3), the Court reasoned that Plaintiffs' theory that CRST retaliated by requiring female drivers to exit the truck after complaining of harassment provided common questions of law and fact that  predominated over individual questions affecting the claim.  Id.  at 36-37 & 43-48.  However, the Court determined that Plaintiffs' two other theories of retaliation – forcing accusers to cover transit and lodging costs and extending student-driver training –  presented too many individualized questions for adjudication by representative evidence, even in a bifurcated trial.  Id. at 37-39.

The Court cited Rule 23(c)(4) in certifying the above classes, which allows a court to certify a class "with respect to particular issues," as opposed to an entire claim.  Id. at 48. Nonetheless, the Court went on to consider Plaintiffs' "alternative" request for certification under Rule 23(c)(4) in a separate portion of the opinion.  Id. at 50-52.

In addressing Rule 23(c)(4), the Court noted a circuit split as to whether a plaintiff must show that his entire claim satisfies the predominance requirement of Rule 23(b)(3) before certifying particular issues under Rule 23(c)(4), or whether a plaintiff need only show predominance with respect to the particular issue for certification under 23(c)(4).  Id.  at 51-52.  The Court opined that while the Eighth Circuit has not yet decided the issue, the Court would follow the Second, Fourth and Ninth Circuits in certifying the sufficiently common issues presented by Plaintiffs despite the fact that Plaintiffs' claims in their entirety did not merit certification.  Id. at 52.

Accordingly, as to the Hostile Work Environment Class, the Court certified the issues of whether CRST had any of the following policies, patterns or practices that create or contribute to a hostile work environment: (1) failing to find their complaints were corroborated without an eyewitness or admission; (2) failing to discipline drivers after complaints were corroborated; and (3) failing to discipline responsible employees for not promptly responding to sexual harassment complaints.  Id. at 55.  As to the Retaliation Class, the Court certified the issue of whether CRST has a policy, pattern, or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck after complaining.  Id.

In other parts of the opinion, the Court denied Plaintiff's request for hybrid certification of injunctive relief classes under Rule 23(b)(2). Id. at 49-50.  The Court also rejected CRST's arguments against certification based on the Rules Enabling Act and Article III standing.  Id. at 52-54.

Implication For Employers

This case is part of a trend, post-Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), whereby courts have used Rule 23(c)(4) issue certification or an expansive view of Rule 23(b)(3) to sidestep individualized issues that would otherwise preclude certification.  In this case, the Court certified a class claim despite the fact that individual issues of liability as well as damages would remain in individual trials in Phase II under the bifurcation plan at issue.  The Court did not address in great detail whether such a hyper-segmented plan is likely to achieve the efficiency and fairness objectives the class action device was designed to achieve.  In circumstances like this, employers should emphasize the absence of such efficiency and fairness in defending against certification.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald L. Maatman Jr.
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions