Full opinion text
ORDER LINDA R. READE, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION..........................................................920 II. PROCEDURAL BACKGROUND............................................921 A. Administrative Proceedings............................................921 1. Ms. Starke files the Charge.........................................921 2. The EEOC processes the Charge ....................................921 3. The EEOC’s investigation..........................................922 B. The EEOC’s Complaint................................................922 C. Scheduling............................................................924 D. Other Allegedly Aggrieved Persons......................................924 1. Unnecessary confusion.............................................924 2. Case management orders...........................................925 E. Motion ...............................................................927 III. STATUTORY FRAMEWORK...............................................927 A. Sexual Harassment is Sex Discrimination...............................927 B. Differences Between “ § 706” & “ § 707” Lawsuits by the EEOC..........929 1. Lawsuits under § 706 ..............................................929 2. Lawsuits under § 707 ..............................................929 3. Summary of differences.............................................932 4. Confusion in this case..............................................933 C. Sexual Harassment Pattern or Practice Cases are Special................934 1. The Teamsters model “breaks down”................................934 2. The modified burden-shifting approach of Jenson II...................935 3. Summary .........................................................937 IV. THE MERITS.............................................................938 A. Standard for Summary Judgment.......................................938 B. Preliminary Evidentiary Rulings.......................................939 C. Summary Judgment Facts .............................................939 1. CRST’s business model.............................................939 2. Front-line personnel...............................................940 a. Trainees ......................................................940 b. Co-drivers.....................................................940 c. Lead drivers...................................................940 d. Dispatchers ...................................................940 3. Status of women at CRST...........................................941 4. CRST’s policy against sexual harassment............................941 5. Multiple avenues for reporting sexual harassment....................944 6. Response and discipline............................................945 7. Incidence of sexual harassment among CRST’s drivers................946 8. CRST’s responses to specific situations..............................947 D. Arguments............................................................948 1. Motion............................................................948 2. Resistance........................................................950 3. Reply.............................................................952 E. Analysis..............................................................952 V. CONCLUSION ............................................................958 I. INTRODUCTION The matter before the court is Defendant CRST Van Expedited, Inc.’s “Motion for Summary Judgment on EEOC’s Pattern and Practice Claim” (“Motion”) (docket no. 150). II. PROCEDURAL BACKGROUND A. Administrative Proceedings 1. Ms. Starke files the Charge On December 1, 2005, Plaintiff-Intervener Monika Starke (“Ms.Starke”) presented a Charge of Discrimination (“Charge”) to Plaintiff Equal Employment Opportunity Commission (“the EEOC”). Ms. Starke alleged that her employer, Defendant CRST Van Expedited, Inc. (“CRST”), “discriminated against [her] on the basis of ... sex ..., in violation of Title VII of the Civil Rights Act of 1964, [42 U.S.C. § 2000e et seq.,] as amended” (“Title VII”). Def.’s App’x at 2998. Ms. Starke alleged the following “particulars” in her Charge: I was hired by [CRST] on June 22, 2005 in the position of Truck Driver. Since my employment began with [CRST,] 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.....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 passing grade. Id. Further, Ms. Starke alleged that CRST “did not state why I was subjected to sexual harassment[,] which created a hostile work environment.” Id. 2. The EEOC processes the Charge Ms. Starke asked the EEOC to file her Charge and cross-file it with the Iowa Civil Rights Commission (“ICRC”). Pursuant to a work-sharing agreement, the EEOC formally received the Charge on behalf of both agencies and deemed the Charge to be “initially instituted” with the ICRC. (In the work-sharing agreement, the EEOC and ICRC reciprocally designated each other as agents for receiving charges of unlawful employment practices.) The EEOC sent a copy of the Charge to the ICRC, notified the ICRC that the Charge “is to be initially investigated by the EEOC,” id. at 3000, and began its investigation. Because the EEOC deemed the Charge to be “initially instituted” with the ICRC, Ms. Starke’s Charge was timely filed as to any alleged unlawful employment practice occurring on or after February 4, 2005, ie., any such practice occurring within 300 days of the filing of the Charge. In relevant part, Title VII’s statute of limitations provides: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ..., except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State ... with authority to grant or seek relief from such practice ..., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred .... 42 U.S.C. § 2000e-5(e)(1); see, e.g., Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 360 n. 8, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (“If a charge has been initially filed with or referred to a state ... agency, it must be filed with the EEOC within 300 days after the practice occurred____”). An influential treatise explains there is a dual aspect to the Title VII limitations periods; they have a retrospective, as well as a prospective, aspect. In other words, not only must charges be filed within 180 (or 300) days after a discriminatory event, but also, as a general rule, the aggrieved party can only achieve redress for discriminatory acts which occurred 180 (or 300) days prior to the filing of charges. 4 Lex K. Larson, Employment Discrimination § 72.02, at 72-5 (2d ed. July 2008). 3. The EEOC’s investigation Upon receipt of the Charge, the EEOC immediately notified CRST of Ms. Starke’s allegations. The EEOC ordered CRST to file a response to the Charge on or before December 30, 2005. The record does not disclose CRST’s response to Ms. Starke’s allegations. The nature, scope and duration of the EEOC’s investigation is unknown to the court. Further, it is unclear to what extent the EEOC attempted to conciliate Ms. Starke’s allegations with CRST. What is certain is that Ms. Starke never exercised her right to file a Title VII lawsuit against CRST while her Charge was pending before the EEOC. Title VII grants the charging party who is unwilling to await the conclusion of extended EEOC proceedings a right to file suit 180 days after the charge was filed. 42 U.S.C. § 2000e-5(f)(1); Occidental Life, 432 U.S. at 361, 97 S.Ct. 2447. B. The EEOC’s Complaint On September 27, 2007, nearly two years after Ms. Starke filed her Charge, the EEOC filed the instant lawsuit on behalf of Ms. Starke “and a class of similarly situated female employees of [CRST].... ” Complaint (docket no. 2), at 1. Pursuant to 42 U.S.C. § 2000e-5(f)(1) and (3) and 42 U.S.C. § 1981a, the EEOC purports to bring suit in its own name “to correct [CRST’s] unlawful employment practices on the basis of sex, and to provide appropriate relief to [Ms.] Starke and a class of similarly situated female employees of [CRST] who were adversely affected by such practices.” First Amended Complaint (“EEOC’s Complaint”) (docket no. 8), at 1. The EEOC generally alleges that Ms. Starke and the other similarly situated women “were adversely affected ... when their lead drivers or team drivers subjected them to sexual harassment and to a sexually hostile working environment based on their gender, and CRST failed to prevent, correct, and protect them.... ” Id. The heart of the EEOC’s Complaint contains the following specific allegations against CRST: 7. Since at least July 2005, CRST engaged in unlawful employment practices in violation of Sections 703(a) and 704(a) of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3. Among other things, two of its lead drivers subjected [Ms.] Starke to sexual harassment during their supervision of [her] (including, but not limited to, unwelcome sexual conduct, other unwelcome physical touching, propositions for 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 lead drivers and because of its failure and refusal to take prompt and appropriate action to prevent, correct, and protect [Ms.] Starke from the harassment and the hostile work environment, culminating in her discharge from employment with CRST. 8. 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, including, among other things, unwelcome sexual conduct, other unwelcome physical touching, propositions for sex, and sexual comments from their lead drivers or team drivers. CRST is liable for harm caused by the harassment and the hostile and offensive work environment because of the actions of its lead drivers or team drivers and because of its failure and refusal to take prompt and appropriate action to prevent, correct, and protect its female employees from the harassment and the hostile environment. 9. The effect of the practices complained of in Paragraphs 7 and 8 above has been to deprive [Ms.] Starke and class of similarly situated female employees of equal employment opportunities, and to otherwise adversely affect their status as employees, because of sex. EEOC’s Complaint at 2-3. The EEOC alleges that CRST’s actions “were intentional” and “done with malice or with reckless indifference to the federally protected rights of [Ms.] Starke and the class of similarly situated female employees.” Id. at 3. The EEOC asks the court for “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.” Id. at 4. The EEOC further asks the court to “[o]rder 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.” Id. Finally, the EEOC asks the court to order CRST to pay Ms. Starke and the similarly situated female employees compensatory damages, punitive damages and ordinary costs. The requested compensatory damages include back pay, pre-judgment interest, front pay and recompense for “emotional pain, suffering, and humiliation.” Id. Notably, the EEOC did not that allege CRST was engaged in “a pattern or practice” of illegal sex-based discrimination or otherwise plead a violation of 42 U.S.C. § 2000e-6. Further, the EEOC’s Complaint does not state with particularity how Ms. Starke or the other similarly situated women exhausted their administrative remedies. The EEOC simply represents that, “[m]ore than 30 days prior to the institution of [the] lawsuit, [Ms. Starke], then a CRST employee, filed a charge with the EEOC alleging violations of Title VII by CRST.” Id. Similarly, it is unclear why the EEOC used Ms. Starke’s Charge to file this lawsuit on behalf of an untold number of similarly situated women — all of whom remain unnamed in the EEOC’s Complaint. In other words, it is unknown what led the EEOC to use the Charge as “a jurisdictional springboard.” EEOC v. Gen. Elec. Co., 532 F.2d 359, 364 (4th Cir.1976) (cited with approval in Gen. Tel. Co. of Nw., Inc. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (“Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.”)). On November 30, 2007, CRST filed an Answer and Affirmative Defenses (docket no. 11). On May 1, 2008, CRST filed an Amended Answer and Affirmative Defenses (“Answer”) (docket no. 36) to assert an additional affirmative defense. CRST denies the substance of the EEOC’s Complaint and asserts seven affirmative defenses, including but not limited to waiver or release, failure to exhaust administrative remedies and “untimel[iness].” Answer at 2. C. Scheduling On February 8, 2008, the court adopted the parties’ Scheduling Order and Discovery Plan (“Scheduling Order”) (docket no. 21). Among other things, the parties agreed to a December 7, 2008 deadline for completion of discovery and a trial ready date of May 15, 2009. The parties estimated trial would last twenty days. In reliance upon the parties’ representations, the court scheduled the trial to commence at some time “during the two-week period beginning on June 15, 2009” with the exact dates and times of the trial to be determined closer in time to the trial date. Trial Management Order (docket no. 22), at 1 (emphasis omitted). D. Other Allegedly Aggrieved Persons 1. Unnecessary confusion The vague reference in the EEOC’s Complaint to “[Ms.] Starke and a class of similarly situated female employees” has added unnecessary confusion to this case in at least two respects: First, the EEOC’s use of the phrase “[Ms.] Starke and a class of similarly situated female employees” does not comport with the language or structure of the statute upon which it sued, 42 U.S.C. § 2000e-5. The phrase naturally evokes the thought of Ms. Starke as the named plaintiff in a Rule 23 class action against CRST. To the contrary, it is settled that “the EEOC may maintain its [§ 2000e-5(f)(l) ] civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23.” Gen. Tel, 446 U.S. at 333-34, 100 S.Ct. 1698 (footnote omitted). For example, the EEOC may pursue relief on behalf of a group of allegedly aggrieved persons “even though competing interests are involved,” id. at 331, or even if there is “a huge variance in the nature and extent of the injuries suffered” within such group, In re Bemis Co., 279 F.3d 419, 421 (7th Cir.2002) (Posner, J.). Any limitation upon the EEOC to sue only on behalf of “similarly situated female employees” in this case was self-imposed. To remedy any confusion on this point, the court refers to the “similarly situated female employees” exactly as the relevant part of Title VII refers to them: as “allegedly aggrieved persons.” See 42 U.S.C. § 2000e-5(f)(1) (referring to “[t]he person or persons aggrieved” and “the person aggrieved”). The court refrains from referring to the “similarly situated female employees” as “class members.” See, e.g., EEOC v. Scolari Warehouse Mkts., Inc., 488 F.Supp.2d 1117, 1124 n. 2 (D.Nev.2007) (declining to refer to allegedly aggrieved persons as “class members”); see also Gen. Tel, 446 U.S. at 323 n. 5, 100 S.Ct. 1698 (noting the EEOC refrained from characterizing a 42 U.S.C. § 2000e-5 lawsuit as a “class action” and instead called it an action “affecting a class of individuals”). But see EEOC v. Int’l Profit Assocs., Inc., No. 01-C-4427, 2007 WL 3120069, *1 n. 1 (N.D.Ill. Oct. 23, 2007) (using term “class”); EEOC v. Dial Corp., 156 F.Supp.2d 926, 946 n. 13 (N.D.Ill.2001) (similar); EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1076 n. 10 (C.D.Ill.1998) (similar). Second, in the early stages of this litigation it was unclear how many “similarly situated female employees” on whose behalf the EEOC was seeking individual relief. The EEOC’s Complaint does not indicate whether there were two, twenty or two thousand “similarly situated female employees.” The EEOC had agreed, however, to the Scheduling Order, which “[e]stimated [the] length of trial” to be “20 days.” Scheduling Order at 2 (emphasis in original). The court accepted this representation when planning its schedule. As discovery progressed, it became clear to the court that the EEOC did not know how many allegedly aggrieved persons for whom it was seeking relief and was using discovery to find them. 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. CRST has produced more than 200,000 pages of documents to the EEOC in this ease. Cf. Dial, 156 F.Supp.2d at 938 (recounting but rejecting the defendant’s argument that the EEOC had “made no effort to identify class members until several months after it filed the ... action, when it sent a letter to approximately 400 current and former female employees”). There was a risk 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. 2. Case management orders On August 7, 2008, the EEOC filed a Motion to Modify the Scheduling Order (docket no. 37). On August 8, 2008, CRST filed a Response (docket no. 38), in which it agreed certain modifications to the Scheduling Order were appropriate but also asked the court to establish a date “by which [the] EEOC completes its identification of class members.” Response (docket no. 38), at 4. In a Reply (docket no. 42), the EEOC stated 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 1-3. On August 20, 2008, United States Magistrate Judge Jon S. Scoles issued an Order Modifying Discovery Plan (docket no. 44). Among other things, Judge Scoles set a October 15, 2008 deadline for the EEOC “to disclose the identity of class members.” Order Modifying Discovery Plan (docket no. 44), at 2. Judge Scoles also continued the parties’ previously agreed-upon discovery deadline to January 15, 2009. As far as the court is aware, CRST has consistently intended to exercise its right to depose all allegedly aggrieved persons on whose behalf the EEOC seeks monetary damages. By October 15, 2008, the EEOC had identified approximately 270 aggrieved persons to CRST. This total was much greater than CRST had anticipated based upon the EEOC’s representations to the court. See, e.g., Response (docket no. 42), at 1-2 (estimating “the total class will reach between 100 and 150 individuals”); Scheduling Order at 2 (estimating a twenty-day trial). 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 11. In ruling upon the Motion to Show Cause, the undersigned held that the EEOC had complied with the letter, if not the spirit, of Judge Scoles’s order. 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 disclosed to CRST before the deadline had an actionable claim for sex discrimination. Recognizing that the EEOC is “the master of its own case” (in the sense that it has the statutory authority to proceed on behalf of allegedly aggrieved persons without their consent), EEOC v. Waffle House, Inc., 534 U.S. 279, 291, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), the court declined to “strike” all women who had not given the EEOC informed consent to proceed on their behalf in this case. 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 8. The court invoked its inherent case management authority, Fed.R.Civ.P. 26(f), Fed.R.Civ.P. 16(b) and LR 16, and adopted the following three rules going forward to forestall any prejudice to CRST. The court ordered the EEOC to (1) immediately file with the court a corrected list of the approximately 270 allegedly aggrieved persons it had disclosed to CRST on October 15, 2008 (the list the EEOC previously disclosed contained many errors); (2) immediately inform CRST and file an amended disclosure list with the court as soon as it learned that it no longer wished to pursue individual claims on behalf of any of the women on the list; and (3) make all allegedly aggrieved persons on whose behalf the EEOC sought relief available to CRST for a deposition before the conclusion of discovery on January 15, 2009. The court then ordered: “If the EEOC fails to make a woman available, as a discovery sanction the court will not permit her to testify at trial and will bar the EEOC from seeking relief on her behalf in this case.” Id. at 9. Subsequently, the EEOC made approximately 150 of the 270 allegedly aggrieved women available for deposition. It appears CRST deposed all ■ of the women whom the EEOC made available. At present, therefore, the EEOC intends to seek individual relief for approximately 150 allegedly aggrieved persons at trial. The EEOC desires to seek individual relief for an additional “99 women who were not deposed and therefore are subject to the discovery sanction.” Response to Motion to Strike (docket no. 187), at 2. Because the EEOC did not make these women available to CRST for deposition prior to January 15, 2009, the EEOC may not seek relief for them. E. Motion On February 13, 2009, CRST filed the Motion. CRST asks the court to “grant summary judgment in its favor against [the] EEOC on the pattern or practice claim.” Defendant’s Brief in Support of Motion (“Def.’s Br.”) (docket no. 150-2), at 21. On March 16, 2009, the EEOC filed a Resistance (docket no. 168). On March 31, 2009, CRST filed a Reply (docket no. 185). On April 21, 2009, with permission of the court, CRST filed a Surreply (docket no. 194). CRST requests oral argument on the Motion. The court finds oral argument is not appropriate. The Motion is fully submitted and ready for decision. III. STATUTORY FRAMEWORK A brief outline of the relevant statutory framework helps to place the Motion in its proper context. At first glance the Motion is odd, because it asks the court to dismiss a “pattern or practice claim” when no such claim appears in the EEOC’s Complaint. A. Sexual Harassment is Sex Discrimination Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). “The Supreme Court has determined ... that sexual harassment ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’ qualifies as [unlawful] sex discrimination under Title VII.” Adams v. O’Reilly Auto., Inc., 538 F.3d 926, 928 (8th Cir.2008) (quoting Mentor Savs. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). In Meritor, the Supreme Court explained: The phrase “terms, conditions, or privileges of employment” [within 42 U.S.C. § 2000e-2(a)(1) ] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment. [S]exual misconduct constitutes prohibited sexual harassment, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. $ ‡ Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. Of course ... not all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment. 477 U.S. at 64-67, 106 S.Ct. 2399 (citations and internal quotation marks omitted). To prove sex discrimination based upon a hostile work environment theory of, sexual harassment, then, a plaintiff must prove “(1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and the plaintiffs protected group status; and (4) the harassment affected a term, condition, or privilege of employment.” Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194-95 (8th Cir.2006) (citing Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th Cir.2005)). In addition, if the harassment was committed by a co-worker, [a plaintiff] must ... establish that [the employer] “knew or should have known of the conduct and failed to take proper remedial action.” Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir.1999). On the other hand, if the harassment was committed by an employee who supervised [the plaintiff], [the employer] is vicariously liable for the harassment unless it can establish the affirmative defense defined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257,141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir.2004). That is, [the employer] is vicariously liable for harassment by its supervisory personnel unless it can establish that (l)[it] exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) [the plaintiff] unreasonably failed to take advantage of the preventive or corrective opportunities provided by [the employer], [Ellerth, 524 U.S. at 765, 118 S.Ct. at 2270-71]. An employer may assert the affirmative defense only “[w]hen no tangible employment action is taken.” [Faragher, 524 U.S. at 807-08, 118 S.Ct. at 2292-93]. Gordon, 469 F.3d at 1195. To prove sexual harassment is sufficiently unwelcome to be actionable under Title VII, a plaintiff must meet an objective standard and a subjective standard regarding the harassment itself. With respect to the objective standard, the Supreme Court has made clear over the years that “[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). “Title VII does not mandate an employment environment worthy of a Victorian salon.” Hall v. Gus Constr. Co., 842 F.2d 1010, 1017 (8th Cir. 1988). “White gloves, crystal, and fíne china are neither required nor expected.” Jenson v. Eveleth Taconite Co., 189 F.R.D. 657, 662 (D.Minn.1991) (“Jenson /”). Title VII was not designed to “displace all ribaldry on the roadway,” and “[o]ne may well expect that ... language of the barracks will always predominate over that of the ballroom.” Hall, 842 F.2d at 1017-18. With respect to the subjective standard, it is settled that, “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” Harris, 510 U.S. at 21-22, 114 S.Ct. 367. B. Differences Between “§ 706” & “§ 707” Lawsuits by the EEOC Two distinct parts of Title VII separately authorize the EEOC to bring suit in its own name to ferret out unlawful sex discrimination: § 706 of Title VII, 42 U.S.C. § 2000e-5 (“ § 706”), and § 707 of Title VII, 42 U.S.C. § 2000e-6 (“ § 707”). 1. Lawsuits under § 706 Section 706 permits the EEOC to sue a private employer on behalf of a “person or persons aggrieved” by the employer’s unlawful employment practice. 42 U.S.C. § 2000e5(f)(l). The EEOC may file a § 706 lawsuit against a private employer, after the filing of a charge of unlawful employment discrimination with the EEOC, if the EEOC finds “reasonable cause” the employer has violated Title VII. Id.; see, e.g., Occidental Life, 432 U.S. at 359-60, 97 S.Ct. 2447 (summarizing process for the EEOC to file a § 706 lawsuit). In General Telephone, the seminal § 706 case, the Supreme Court succinctly explained: Title VII ... authorizes the procedure that the EEOC followed in this case. Upon finding reasonable cause to believe that [a private employer] had discriminated against female employees [upon the filing of four individual charges of discrimination with the EEOC], the EEOC filed suit.... [T]he EEOC need look no further than § 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. 446 U.S. at 324,100 S.Ct. 1698. The EEOC is “master of its own case” when bringing suits on behalf of aggrieved persons in a § 706 lawsuit. Waffle House, 534 U.S. at 291, 122 S.Ct. 754. For example, it may bring suit with or without the consent of the aggrieved persons. Id. at 291-92, 122 S.Ct. 754. Nonetheless, it is axiomatic that the EEOC stands in the shoes of those aggrieved persons in the sense that it must prove all of the elements of their sexual harassment claims to obtain individual relief for them. Likewise, the full range of legal remedies available to individuals is generally available to the EEOC if the EEOC prevails on their behalf. The EEOC is entitled to equitable relief, 42 U.S.C. § 2000e-5(g), and may also usually pursue compensatory and punitive damages, 42 U.S.C. § 1981a(a)(i). 2. Lawsuits under § 707 Section 707 permits the EEOC to bring suit against employers whom it has reasonable cause to believe are engaged in “a pattern or practice” of unlawful employment discrimination. 42 U.S.C. § 2000e-6; see also Gen. Tel. Co., 446 U.S. at 327 n. 9, 100 S.Ct. 1698 (“If, for any reason, [the] EEOC .... believes a pattern or practice of discrimination exists in [a private employer], its recourse is to file a suit under § 707.” (citations and emphasis omitted)). Like § 706, § 707 grants the EEOC the right to seek equitable relief against employers found to have intentionally engaged in a pattern or practice of unlawful employment discrimination. 42 U.S.C. § 2000e-6(a). Unlike § 706, however, the EEOC is not authorized to seek compensatory or punitive damages under § 707; the relevant portion of 42 U.S.C. § 1981a only authorizes recovery of compensatory and punitive damages “[i]n an action brought by a complaining party under [§ 706].” 42 U.S.C. § 1981a(a)(l). “A pattern or practice case seeks to eradicate systemic, company-wide discrimination and focuses on an objectively verifiable policy or practice of discrimination by a private employer against its employees.” Mitsubishi, 990 F.Supp. at 1070. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) is the seminal § 707 case. In Teamsters, the United States alleged a company, with the assistance of a union, engaged in a pattern or practice of discriminating against certain persons in failing to recruit, hire, transfer and promote them to higher paying, more desirable jobs, including “line driver” jobs, on an equal basis with white persons. 431 U.S. at 335, 97 S.Ct. 1843. The United States brought the lawsuit under § 707 and alleged the company had engaged in a “pattern or practice” of unlawful employment discrimination. Id. at 328-29, 97 S.Ct. 1843. The United States sought injunctive and other equitable relief, including “make whole” relief that would allow discriminatees to transfer to line driver positions without losing seniority. Id. at 330, 97 S.Ct. 1843. The United States presented damning statistical evidence to prove its pattern or practice claim: As of March 31, 1971, shortly after the Government filed its complaint alleging systemwide discrimination, the company had 6,472 employees. Of these, 314(5%) were Negroes and 257(4%) were Spanish-surnamed Americans. Of the 1,828 line drivers, however, there were only 8 (0.4%) Negroes and 5 (0.3%) Spanishsurnamed persons, and all of the Negroes had been hired after the litigation had commenced. With one exception — a man who worked as a line driver at the Chicago terminal from 1950 to 1959— the company and its predecessors did not employ a Negro on a regular basis as a line driver until 1969. And, as the Government showed, even in 1971 there were terminals in areas of substantial Negro population where all of the company’s line drivers were white. A great majority of the Negroes (83%) and Spanish-surnamed Americans (78%) who did work for the company held the lower paying city operations and serviceman jobs, whereas only 39% of the nonminority employees held jobs in those categories. 431 U.S. at 337-38, 97 S.Ct. 1843 (footnotes omitted, emphasis in original). The United States also “bolstered its statistical evidence with the testimony of individuals who recounted over 40 specific instances of discrimination.” Id. at 338, 97 S.Ct. 1843. After a trial, the district court found by a preponderance of the evidence that the company had engaged in a pattern or practice of unlawful employment discrimination. Id. at 380-81, 97 S.Ct. 1843. The district court granted most of the United States’s requested equitable relief. Id. at 331-32, 97 S.Ct. 1843. On appeal, the Supreme Court held that there was sufficient evidence in the record to support the district court’s determination that the employer had engaged in a pattern or practice of unlawful employment discrimination. Id. at 337, 97 S.Ct. 1843. In affirming the judgment of the district court on this issue, the Supreme Court set forth the governing legal standard for pattern or practice claims. The standard survives to this date. To prove a pattern or practice claim, the EEOC must “establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure— the regular rather than the unusual practice.” Id. at 336, 97 S.Ct. 1843. That is, the EEOC is required “to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id. In a footnote, the Supreme Court observed that “the ‘pattern or practice’ language in [§ 707] was not intended as a term of art, and the words reflect only their usual meaning.” Id. at 336 n. 16, 97 S.Ct. 1843 (citation omitted). A pattern or practice is “present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute. The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice.... ” Id. (quoting Statement of Senator Humphrey, 110 Cong. Rec. 14270 (1964)); see also Catlett v. Mo. Hwy. & Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987) (“A pattern or practice is present when the discriminatory acts were not isolated, insignificant, or sporadic, but were repeated, routine or of a generalized nature[.]”); Craik v. Minn. State Univ. Bd., 731 F.2d 465, 486 (8th Cir.1984) (Swygert, J., sitting by designation, dissenting in part) (“What must be proved ... is that the employer engaged in a consistent rather than a sporadic pattern of discrimination.”). The Supreme Court also adopted a burden-shifting framework for pattern or practice suits in which disparate treatment on the basis of race is alleged. The Court explained: The plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit[,] the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government’s proof is either inaccurate or insignificant. An employer might show, for example, that ... during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination. If an employer fails to rebut the inference that arises from the Government’s prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy. Without any further evidence from the Government, a court’s finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order “necessary to ensure the full enjoyment of the rights” protected by Title VII. When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. [A]s is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking. The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual diseriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. [T]he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. Teamsters, 431 U.S. at 360-62, 97 S.Ct. 1843 (footnotes and citations omitted); see also Craik, 731 F.2d at 470 (clarifying that in pattern-or-practice cases, at the remedial stage the burden of persuasion — not just the burden of production — shifts to the employer). 3. Summary of differences To summarize, “[t]here is a significant distinction between §§ 706 and 707 claims.” Scolari, 488 F.Supp.2d at 1143. As the Supreme Court has recognized: A Commissioner may file a charge in either of two situations. First, when a victim of discrimination is reluctant to file a charge ... because of fear of retaliation, a Commissioner may file a charge on behalf of the victim. [42 U.S.C. § 2000e-5.] Second, when a Commissioner has reason to think that an employer has engaged in a “pattern or practice” of discriminatory conduct, he may file a charge on his own initiative. [42 U.S.C] § 2000e-6. EEOC v. Shell Oil Co., 466 U.S. 54, 62, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984); see also Mitsubishi, 990 F.Supp. at 1084 n. 18 (“The Supreme Court’s statements [in Shell Oil] recognize the difference between a § 706 and a § 707 case, by indicating that a Commissioner’s charge under § 706 is filed on behalf of an individual, whereas a Commissioner’s charge under § 707 is filed on ‘his own initiative’ for the purpose of alleging a pattern or practice of discrimination rather than individual discrimination.”). Similarly, the Tenth Circuit Court of Appeals observed: The EEOC is., authorized to file two types of civil actions to redress employment discrimination. Under [§ ] 707, it may bring a civil action when it determines that there is “reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured (by provisions of the Act relating to employment discrimination), and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.... ” 42 U.S.C. [§ ] 2000e-6(a). Section 706, on the other hand, is addressed to vindication of individual instances of employment discrimination. [The] EEOC[’s] involvement is initiated by the filing of a specific charge of employment discrimination. The EEOC must investigate and make a finding as to reasonable cause. If reasonable cause is found to support the charge, the next step is conciliation. Only when conciliation is attempted and the efforts fail may the EEOC enter into litigation under [§ ] 706. EEOC v. Cont’l Oil Co., 548 F.2d 884, 887 (10th Cir.1977). Finally, one district court elaborated: [A] § 706 case is based on one or more individual charges or complaints of unlawful discrimination by an employer, and a § 707 case is based on a pattern or practice of systemic discrimination by an employer. Although both a § 706 case and a § 707 case can be filed by the EEOC in its own name and initiated by a “Commissioner’s charge,” rather than an individual charge, the converse is not true. A § 707 case cannot be initiated by an individual charge, and it cannot be filed as a civil suit by an individual. A § 707 case is a “pattern or practice” case that challenges systemic, widespread discrimination by an employer. Conversely, a § 706 case seeks to vindicate, sometimes on a class-wide basis, the rights of aggrieved individuals who are challenging an unlawful employment practice by an employer. The distinction is subtle and not immediately apparent from the language of Title VII, but it is, nonetheless, an important distinction. Mitsubishi, 990 F.Supp. at 1084 (citation and footnote omitted). 4. Confusion in this case “Notwithstanding [the] differences [between the two statutes], courts have blurred the line between class-wide claims brought pursuant to § 706 and pattern-or-practice claims brought pursuant to § 707.” Scolari, 488 F.Supp.2d at 1148 (citations omitted); see, e.g., Dial, 156 F.Supp.2d at 969 (concluding that “a pattern-or-practice action can be brought, both as a general matter and in this case, for sexual harassment claims under §§ 706 and 707 of Title VII”). Not surprisingly, it appears much confusion has already crept into this case. The EEOC is pursuing matters in this case that it did not plead or allege in the EEOC’s Complaint. The EEOC’s Complaint reads as if the EEOC were asserting a prototypical § 706 action. The EEOC squarely pled a violation of § 706. The EEOC did not plead a violation of § 707, and the phrase “pattern or practice” — a phrase with which the EEOC is familiar — appears nowhere in the EEOC’s Complaint. Consistent with its decision to only plead a violation of § 706, the EEOC seeks compensatory and punitive damages from CRST pursuant to 42 U.S.C. § 1981a. In recent months, however, the EEOC has made clear to the court and CRST that it believes CRST had engaged in “a pattern or practice” of tolerating sexual harassment. See, e.g., Brief in Resistance to Statute of Limitations (“Lim.Br.”) (docket no. 165-1), at 4 (“This is a case brought by the [EEOC], alleging a pattern or practice of tolerating a hostile work environment based on sexual harassment.”). The EEOC belatedly sought bifurcation of trial in accordance with Teamsters. It also announced its intention to invoke the Teamsters burden-shifting framework. In sum, it would appear the EEOC is attempting to have its cake and eat it too. That is, the EEOC is attempting to avail itself of the Teamsters burden-shifting framework yet still seek compensatory and punitive damages under § 706. Cf. Dial, 156 F.Supp.2d at 930 (seeking compensatory and punitive damages in a § 707 lawsuit). Complicating matters further, it is important to remember that the Supreme Court designed the Teamsters burden-shifting framework with only equitable relief in mind. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1290 n. 4 (8th Cir.1997) (discussing 1991 amendments to Title VII, which allowed plaintiffs to seek compensatory and punitive damages under § 706); see also Bemis, 279 F.3d at 421 (pointing out that merely injunctive relief and back pay and not “common-law-type damages” were available when the Supreme Court decided General Telephone). Fortunately, the court need not cut through this cloud of confusion to rule on the Motion. CRST does not argue that the EEOC’s Complaint fails to state a “pattern or practice claim.” Indeed, CRST filed the instant Motion to seek its dismissal; presumably, CRST does not seek to dismiss what it does not believe to exist. Accordingly, the court assumes without deciding that at least one of two legal principles is true: either (1) § 706 somehow permits the EEOC to pursue a pattern or practice claim and thereby render § 707 a mere redundancy in the law or (2) the EEOC has constructively amended its complaint to assert a § 707 claim against CRST in this lawsuit in addition to its § 706 claim. In other words, the court assumes without deciding that this is a sexual harassment pattern or practice case. C. Sexual Harassment Pattern or Practice Cases are Special 1. The Teamsters model “breaks down” Sexual harassment pattern or practice cases are special. As several district courts have recognized over the last two decades, the Teamsters pattern or practice model “breaks down” when the unlawful employment practice at issue is sexual harassment based on a hostile work environment. Mitsubishi, 990 F.Supp. at 1071; see also Int’l Profit Assocs., 2007 WL 3120069, at *3 (similar); Jenson v. Eveleth Taconite Co., 824 F.Supp. 847, 875-76 (D.Minn.1993) (“Jenson II ”) (similar). One of the district courts to address the issue most recently observed: [I]n a race discrimination case[,] it is clear why a pattern or practice finding should have an effect on an employer’s liability to individual claimants. If an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why. However, the impact of a pattern or practice finding in a hostile work environment sexual harassment case is not so clear. In contrast with a race discrimination case — where the focus is on the employer’s basis for making an employment decision that adversely affected the claimant — a sexual harassment case centers on the gravity of the conduct to which a claimant was exposed. The sexual harassment suffered by the claimant must have been severe or pervasive enough (measured both objectively and subjectively) to constructively alter the terms or conditions of the claimant’s employment by creating a hostile work environment. Otherwise, no Title VII violation has occurred. Therefore, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages. Int’l Profit Assocs., 2007 WL 3120069 at *3 (citations omitted). 2. The modified burden-shifting approach of Jenson II Jenson II was the first reported case to address the tension between the Teamsters burden-shifting framework and the Supreme Court’s sexual harassment jurisprudence. Notwithstanding its status as a private class action lawsuit, Jenson II is similar to the case at bar insofar as the district court assumed the Teamsters burden-shifting framework applied to § 706. Jenson II, 824 F.Supp. at 860 (citing Craik, 731 F.2d at 470). As indicated in Part III.C.l supra, the court assumes without deciding that the EEOC is properly pursuing a pattern or practice claim under § 706 on behalf of similarly situated aggrieved persons in this action, even though Congress apparently contemplated that the EEOC would bring its pattern or practice lawsuits under § 707 and Teamsters was a § 707 case in which only equitable relief was available. After a bench trial, the district court found that the defendant-employer had engaged in a pattern or practice of sex discrimination. Id. at 874-88. Specifically, the court found that it was the company’s standard operating procedure to tolerate a hostile work environment based on sex. Id. Among other things, the district court found that (1) men occupied virtually every supervisory and managerial position and created a “sexualized environment” for their female subordinates, id. at 885; (2) women worked in a largely unified work environment in which “[virtually all of the relevant testimony and evidence indicates that male employees, [including first-line supervisors,] felt free to and did exhibit sexually-focused material anywhere they chose,” id. at 880; (3) “verbal statements and language reflected] a sexualized, male-oriented, and anti-female atmosphere,” id.; (4) plaintiffs presented expert testimony to show rampant “sex stereotyping” at work, id. at 880-81 & n. 81; (5) the defendant-employer’s management was aware and should have been aware of the hostile work environment, id. at 886-88; (6) the defendant-employer failed to establish a system for processing sexual harassment complaints, id. at 887; (7) the defendant-employer did not discipline harassers even though they were readily identifiable, id.; (8) no member of management was assigned the responsibility to curtail sexual harassment in the workplace, id.; and (9) the defendant-employer made “no effort” to communicate with its employees that sexual harassment was wrong, id. at 888. In reaching these findings, the district court considered itself ordinarily bound to apply the Teamsters burden-shifting framework in § 706 private class action lawsuits. Id. at 860 (citing Craik, 731 F.2d at 470). However, the district court identified the tension between the Teamsters burden-shifting framework and the Supreme Court’s sexual harassment jurisprudence and devised the following solution: Should the employer be found to have engaged in a pattern or practice of discriminating against women by maintaining a hostile environment, the plaintiff class will be eligible for appropriate prospective relief and other remedies consistent with a finding of liability in other pattern or practice cases. However, the nature of a hostile environment claim mandates that the nature of the recovery phase differ from traditional pattern and practice cases. Specifically, a determination that the employer engaged in a pattern or practice of discrimination by maintaining a hostile environment does not entitle every member of the plaintiff class to a presumption that they were sexually harassed — the burden of persuasion does not shift to the employer. Instead, the burden of persuasion remains on the individual class members; each must show by a preponderance of the evidence that she was as affected as the reasonable woman. If this showing is made, the individual member is entitled to all the remedies available under Title VII .... In a hostile environment class action, therefore, every member of the plaintiff class remains a “potential victim” in the true sense of the term. This result is dictated by the fact that the proof introduced during the liability phase cannot resolve a disparate issue of fact essential to claims alleging hostile environment: whether individual members of the plaintiff class were as affected as the reasonable woman would have been. Because the employee’s subjective response to acts of sexual harassment is an essential part of proving a claim of hostile environment sexual harassment, a presumption that the employer discriminated against individual class members may not arise from a determination that the reasonable woman would have been affected by the acts of sexual harassment. Individual employees should not be allowed to circumvent an essential element of a hostile environment claim merely because they are permitted to pursue their claims as a class .... Nevertheless!]] ... liability to the class is established by a determination that the employer engaged in a pattern or practice of exposing women to acts of sexual harassment sufficient to alter the terms or conditions of the reasonable woman’s employment. Accordingly, individual class members need only show that they were at least as affected as the reasonable woman. The other elements of a hostile environment claim are established by the court’s determination in the liability phase of the proceedings. Id. at 875-76 (citations and footnotes omitted). To rule to the contrary would “effectively shift[ ] to [the] defendant the burden of proof on an issue which is carried by the plaintiff in an individual action.” Id. at 876 n. 73. On appeal in Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir.1997), the Eighth Circuit Court of Appeals adopted the district court’s modification of the Teamsters burden-shifting framework in pattern or practice sexual harassment cases. Some courts and commentators have overlooked the importance of the Eighth Circuit Court of Appeals’s decision in Jenson. Compare EEOC v. Carrots Corp., No. 5:98-CV-1772, 2005 WL 928634, at *2 n. 4 (“[N]o Court of Appeals has yet addressed the question.”), Int’l Profit Assocs., 2007 WL 3120069, at *6 (“[N]o appellate courts have addressed this issue[.]”) and Timothy G. Healy, Note, Sexual Pattern: Why a Pattern or Practice Theory of Liability is Not an Appropriate Framework for Claims of Sexual Harassment, 10 Roger Williams U.L.Rev. 537, 538 (2005) (“Healy Article”) (“[T]he issue of whether sexual harassment cases can proceed under a pattern or practice framework ... has received virtually no attention in the federal courts of appeals.”), with Mitsubishi, 990 F.Supp. at 1078 n. 13 (recognizing that the Eighth Circuit Court of Appeals “placed its imprimatur on the district court’s conclusion that the burden shifting framework of ... [Teamsters ] applies in a pattern or practice class case to shift a burden of proof to the employer, once an individual has established the subjective elements of her case”) (emphasis omitted). The significance of the Eighth Circuit Court of Appeals’s opinion is perhaps obscured by the fact that much of the opinion is focused on unrelated issues and the Eighth Circuit Court of Appeals does not elaborate on its reasons for adopting the framework. This part of the opinion, however, is definitely not dicta. The Eighth Circuit Court of Appeals reversed and remanded on the issue of damages because a special master had failed to apply the district court’s modified Teamsters burden-shifting framework. After discussing Teamsters, the Eighth Circuit Court of Appeals stated: In the damages phase, the plaintiffs still were required to show they were as affected by that hostile environment as a reasonable woman would be affected. [Jenson II ], 824 F.Supp. at 876. However, once they made that showing, the burden of proof shifted to [the defendant-employer] to show that it was more likely than not that their decision to not return to work was not the product of the hostile work environment. On this basis, these claims for economic loss are remanded to the district court to be calculated under the proper burden-shifting principles. Jenson, 130 F.3d at 1300. The Eighth Circuit Court of Appeals specifically expressed its holding as follows: We find the Special Master did not apply the appropriate burden-shifting principles in its analysis.... Specifically, the Special Master failed to place the burden of proof on [the defendant-employer] to show that the plaintiffs’ resignations were not caused by the hostile working environment once the Special Master determined the individual plaintiffs] had established the requisite subjective element of their hostile environment claim. Id. at 1299 (emphasis in original). 3. Summary Accordingly, if the court finds that it was CRST’s “standard operating procedure” to tolerate sexual harassment in its workplaces, the court must apply the Teamsters burden-shifting framework as modified by Jenson II. Jenson II's modified burden-shifting framework is the law of the Eighth Circuit in hostile work environment sexual harassment pattern or practice cases. The court is obliged to decline to follow other district courts that have expressly rejected Jenson II, see, e.g., Mitsubishi, 990 F.Supp. at 1069-82, or reached seemingly contrary results, see, e.g., Dial, 156 F.Supp.2d at 947-49. The court must also decline one recent commentator’s invitation to abandon the Teamsters burden-shifting framework altogether. See Healy Article at 538 (“When considering the inherently individualized nature of sexual harassment claims and all of the procedural problems as a whole, it is evident that a pattern or practice theory of liability is n