Sellars v. Crst Expedited, Inc. (359 F. Supp. 3d 633, 2019)

Leonard T. Strand, Chief Judge

TABLE OF CONTENTS

I. INTRODUCTION ...641

II. BACKGROUND ...641

III. ANALYSIS ...642

A. Motion for Partial Summary Judgment on Retaliation Claim ...642

1. Parties' Arguments ...642

2. Applicable Law ...642

3. Undisputed Facts ...643

a. Defendant's Statement of Facts ...643

i. CRST Operations ...643

ii. CRST Written Policies ...644

iii. CRST Practices in Responding to Complaints of Sexual Harassment ...645

b. Plaintiffs' Statement of Additional Facts ...647

4. Analysis ...652

a. Adverse Employment Action ...653

i. Admissibility of Plaintiffs' Evidence ...655

ii. Is There a Policy, Pattern or Practice? ...657

iii. Does the Alleged Policy, Pattern or Practice Involve an Adverse Employment Action? ...659

b. Retaliatory Motive ...660

B. Motion for Decertification of Hostile Work Environment Class ...664

1. Parties' Arguments ...664

2. Factual Background ...665

a. Failure to Corroborate Complaints Without an Eyewitness or Admission ...667

b. Failure to Discipline When Complaints are Corroborated ...669

c. Failing to Discipline DMs Who Do Not Promptly Respond Appropriately to Complaints ...669

3. Applicable Law ...671 4. Analysis ...673

IV. CONCLUSION ...681

I. INTRODUCTION

This case is before me on defendant's motion (Doc. No. 171) for partial summary judgment on plaintiffs' retaliation claim and motion (Doc. No. 172) for decertification of the hostile work environment class. Plaintiffs have filed resistances (Doc. Nos. 187, 188) and defendant has filed replies (Doc. Nos. 197, 198). I also allowed plaintiffs to file a sur-reply (Doc. No. 201) as to both motions. I find that oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) against their employer, CRST Expedited, Inc. (CRST). On March 30, 2017, I entered an order certifying the following classes:

a. The Hostile Work Environment Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies:

(1) failing to find their complaints were corroborated without an eyewitness or admission,

(2) failing to discipline drivers after complaints were corroborated; and

(3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints.

b. The Retaliation Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to retaliation based on sex as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment.

See Doc. No. 85 at 54-55. I also certified the following issues pursuant to Rule 23(c)(4)(a):

a. As to the Hostile Work Environment Class, whether CRST has 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) failure to discipline DMs for failing to promptly respond to sexual harassment complaints and

b. As to the Retaliation Class:

Whether CRST has a policy, pattern or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck except when they are a lead driver or owner-operator

Id. at 55. I noted the order could be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Id. at 56. CRST now seeks summary judgment on the retaliation claim and decertification of the hostile work environment class.

III. ANALYSIS

A. Motion for Partial Summary Judgment on Retaliation Claim

1. Parties' Arguments

CRST argues that plaintiffs' retaliation claim fails for four reasons:

1. Plaintiffs cannot show that they suffered any materially adverse employment action.

2. Plaintiffs cannot show that their removal from their trucks was motivated by retaliatory animus against them for complaining of sexual harassment.

3. CRST has legitimate, non-retaliatory reasons for its remedial actions.

4. The record lacks any evidence of pretext.

See Doc. No. 171.

Plaintiffs argue an unpaid suspension or pay cut in response to sexual harassment complaints constitutes a materially adverse employment action. They contend they have direct evidence of retaliatory intent based on CRST's admission that its policy is to remove women who complain about harassment from their trucks and, depending on whether the removal occurred before or after July 2015, to pay them nothing or reduced pay. Plaintiffs also rely on a Human Resources (HR) PowerPoint presentation in which CRST considered whether female drivers were "punished for raising concerns" by having to get off the trucks and lose money while the accused drivers were allowed to stay on and continue earning money. See Doc. No. 191-1 at 22. Alternatively, plaintiffs argue that under the McDonnell Douglas burden shifting analysis, one could infer a retaliatory motive, for which CRST has no legitimate, non-retaliatory reason for removing women who complain of harassment from the trucks, resulting in a loss of pay. Even if CRST's reasons of safety and prompt investigation could be viewed as legitimate, they argue the evidence demonstrates these reasons are pretextual. They argue CRST's reasons for removing women from the trucks have shifted and that the temporal proximity between plaintiffs' complaints and CRST's actions indicates pretext.

In reply, CRST argues plaintiffs have not demonstrated a genuine issue of material fact as to a standard operating procedure of retaliation. See Doc. No. 198 at 7-11. Specifically, it argues plaintiffs cannot rely on their summary exhibit because it is inadmissible and unreliable. Id. at 11-14. With regard to retaliatory intent, they argue plaintiffs have not demonstrated a genuine issue of material fact based on either direct or indirect evidence. Id. at 14-23.

2. Applicable Law

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A material fact is one that " 'might affect the outcome of the suit under the governing law.' " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "the substantive law will identify which facts are material." Id. Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not. Id.

An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman , 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ), or when " 'a reasonable jury could return a verdict for the nonmoving party' on the question." Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). Evidence that only provides "some metaphysical doubt as to the material facts," Matsushita , 475 U.S. at 586, 106 S.Ct. 1348, or evidence that is "merely colorable" or "not significantly probative," Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505, does not make an issue of material fact genuine.

As such, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" so as to "require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson , 477 U.S. at 248-49, 106 S.Ct. 2505. The party moving for entry of summary judgment bears "the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel , 953 F.2d at 395 (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods , 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex , 477 U.S. at 322, 106 S.Ct. 2548.

In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita , 475 U.S. at 587-88, 106 S.Ct. 1348. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, "because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co. , 383 F.3d 779, 784 (8th Cir. 2004). Instead, "the court's function is to determine whether a dispute about a material fact is genuine." Quick v. Donaldson Co., Inc. , 90 F.3d 1372, 1376-77 (8th Cir. 1996).

3. Undisputed Facts

The following facts are undisputed for purposes of CRST's motion, unless noted otherwise:

a. Defendant's Statement of Facts

i. CRST Operations

CRST operates its transportation company by teaming together two drivers per truck so one driver may sleep while the other is driving. See Doc. Nos. 171-2 and 191-2. This allows the truck to continue moving beyond the daily limits imposed by the Department of Transportation for hours of service for each individual driver. CRST's drivers include individuals who own, or are leasing to own, the vehicles they operate (owner-operators) and other individuals. CRST's training regimen requires student drivers to work alongside experienced drivers (lead drivers) for a designated period of time. Once the student drivers complete their training, they may team up with a co-driver of their choosing.

All driving teams are supervised by a driver manager (DM). Drivers communicate with DMs over phone, email and CRST's messaging system, known as Qualcomm. DMs are evaluated based on metrics such as time percentage, overall mileage and truck utilization. Plaintiffs point out that expenses (amount spent per mile) and trucks in service are also metrics. Doc. No. 191-2 at ¶ 13. They note that factors such as the number of trucks working, and a bus ticket to relocate a driver from one location to another, count against these metrics. Id. DMs are also responsible for retaining drivers and addressing conflicts between team drivers. When that conflict is a complaint of harassment or discrimination, plaintiffs point out that CRST's human resources (HR) department is also responsible for investigating that complaint. Id. at ¶ 14.

Drivers are paid per mile using a "split mileage system." Each driver is paid at his or her personal rate for half of the total miles driven by the truck regardless of the number of miles each driver personally drives. The personal rate depends on the driver's length of experience. A driver may also receive layover pay for the time between when a truck is empty (not under a load) to the dispatched pickup time. This may occur when drivers are away from the terminal or home due to a breakdown or impassable highway conditions. Plaintiffs add that the time period required to receive layover pay is "no less than 48 hours." Id. at ¶ 19. After 48 hours, each driver of the truck may receive $ 40 for each subsequent 24-hour period. Id. Layover and breakdown compensation is based on standard daily rates unrelated to a driver's length of experience.

ii. CRST Written Policies

CRST has a written policy prohibiting sexual harassment in its workplace. The policy also prohibits unlawful employment discrimination and retaliation. The policy is contained within the handbooks that are distributed to CRST drivers and home office employees, including DMs. CRST emphasizes the policy during a dedicated session at driver orientation, where qualified trainers present the policy and provide drivers with a stand-alone copy. The policy states that CRST "prohibits sexual harassment" and that those who report it "will NOT be subject to ANY form of retaliation." See Doc. No. 171-2 at ¶ 25. It also sets forth the complaint procedure and outlines reporting responsibilities for personnel. CRST's Code of Business Ethics prohibits harassment based on sex and mandates immediate reporting "to the appropriate Supervisor or the Human Resources Department." Id. at ¶ 26. The handbook instructs that "[i]f an employee believes he or she is being subjected to verbal or physical harassment, the employee should immediately contact his or her [DM] or [HR] to inform them of the situation and to request a new lead driver." Id. at ¶ 27. The handbook states: "[a]n employee has the right to request a new driver without fear of retaliation. Any employee who reports any act of harassment and/or discrimination will NOT be subject to ANY form of retaliation." Id. at ¶ 28.

All drivers sign an acknowledgement that they have received and reviewed the handbook and statement of policy, including the policy on sexual harassment and retaliation. Drivers are also required to certify their understanding that employees who complain about harassment will be removed from the harassing situation. The acknowledgment states:

I also understand and agree that if I believe I am being subjected to harassment or discrimination, no matter how severe or pervasive, I will immediately report it to my fleet manager or [HR] directly so that I may be removed from the harassing situation and so that CRST may conduct a prompt investigation.

Id. at ¶ 30.

iii. CRST Practices in Responding to Complaints of Sexual Harassment

CRST states that its first priority in responding to a complaint of sexual harassment is the safety of the complaining driver. Plaintiffs deny this. When a dispatcher receives a communication from a driver alleging sexual harassment, the dispatcher is required to take immediate steps to ensure the safety of the complainant and advance the investigation. Plaintiffs admit this is CRST's written policy, but deny that CRST's pattern or practice is to take immediate steps to ensure the safety of the complainant or advance the investigation. See Doc. No. 191-2 at ¶ 32. Dispatchers may respond to complaints of sexual harassment by separating the drivers and arranging for necessary accommodations for the complainant (including a hotel stay and transportation) and to pay or reimburse for those accommodations. Plaintiffs state that while dispatchers may have this authority, they do not in fact arrange for accommodations or travel or pay or reimburse these expenses. Id. at ¶ 33.

CRST states it takes steps to separate drivers quickly and safely. Plaintiffs deny this, stating there are frequent delays in separating drivers, which creates unsafe conditions for women subjected to sexual harassment. Id. at ¶ 34. When one driver makes a complaint against another driver - regardless of the nature of the complaint - DMs are instructed to remove the complainant from the situation unless the complainant is the lead driver or an owner-operator. Plaintiffs admit this to the extent it applies to sexual harassment complaints. Id. at ¶ 35. All employees receive notice of CRST's policy of removing the complaining employee when they join the company. Plaintiffs clarify that this policy concerns only harassment or discrimination complaints. They also add that the policy states only they will be "removed from the harassing situation" and does not state whether they will be removed from their truck. Plaintiffs allege that CRST's policy is to remove women who complain about sexual harassment from their trucks. Id. at ¶ 36.

CRST sets forth several purported rationales for the separation policy, many of which plaintiffs dispute. First, CRST states that removing the complainant allows her to seek necessary resources, such as law enforcement assistance, medical attention or mental health care. Plaintiffs take issue with the evidence cited in support of this statement and contend this shows that female drivers are forced to rely on police intervention to protect themselves from harassing co-drivers. Id. at ¶ 38. They add that complainants would be equally able to obtain these resources if the harasser was removed from the truck. Id.

Second, CRST claims the policy gives the complainant the opportunity and resources to gather and transmit necessary information to HR as part of the investigation. Plaintiffs disagree and state that HR gathers whatever information it seeks from the complainant in a single telephone conversation, which could easily take place while the complainant remains on the truck. Plaintiffs also deny that the policy provides the complainant with resources to gather and transmit information to HR because the policy leaves the complainant on unpaid suspension while off the truck, or receiving less compensation than she would have received had she stayed on the truck. Plaintiffs also note that the complainant is often responsible for the transportation and lodging costs once removed from the truck. Id. at ¶ 40.

Third, CRST states that removing a complainant from the truck better facilitates the investigation by allowing her to have a confidential conversation with HR and giving her the opportunity to gather and submit corroborating evidence. Plaintiffs deny this, stating that a confidential conversation could just as easily take place by removing the accused from the truck. To the extent CRST claims that allowing the complainant to stay on the truck while communicating with HR poses a safety concern, plaintiffs state that a complainant can speak with HR while the truck is not moving. They also point out that HR has conducted investigations and communicated with accused drivers while they remain on the truck. Id. at ¶ 41.

Fourth, CRST states its policy complies with various licensing and ownership rules. For instance, when the complainant is a student driver, she cannot operate the truck alone and when the accused is an owner-operator, CRST has no authority to remove him from his own truck. Plaintiffs admit that removing a student driver or a driver who has been harassed by an owner-operator complies with licensing and truck ownership rules. They deny that other aspects of the removal policy comply with those rules, such as cutting the pay of the removed driver or allowing the lead driver or owner-operator accused of harassment to continue working and earning pay. Id. at ¶ 42.

CRST states that it works with the removed driver to investigate the complaint and to locate a new co-driver for the employee's next job. Plaintiffs admit that CRST does this in some, but not all instances, and adds that this does nothing to alleviate the consequences of spending the intervening time off the truck, wholly unpaid or with a pay cut, until a new co-driver can be located. Id. at ¶ 43.

On July 1, 2015, CRST authored a new Layover Pay Policy, which states:

CRST provides team drivers with multiple venues to report concerns related to harassment and discrimination. Upon a report of harassment or discrimination, CRST staff actively engages with each driver to ensure their safety. Normally, the driver making the complaint (Complainant/Accuser) is removed from the truck expeditiously and routed to a safe haven. The objective here is safety first. If the situation warrants, police will be called to ensure that no incidents transpire while the driver is packing up and exiting the truck. CRST exemplifies a culture that is fair and consistent with regard to pay and lodging to employees who report Title VII concerns. A team driver will not be penalized, financially, for reporting a bonafide concern. In addition, CRST enforces zero tolerance for retaliation.

See Doc. No. 171-2 at ¶ 45. The Policy further provides that when a complaint of harassment or discrimination is made, the dispatcher will "make arrangements to remove the Accuser from the truck" unless the removal of the accuser means that there will not be a qualified driver for the truck. Id. at ¶ 46.

CRST claims that when a driver is removed from a truck, it ensures she has sufficient funds for lodging and transportation costs (which she does not have to pay back) and CRST immediately investigates. Plaintiffs argue the lodging, transportation costs and timing of CRST's investigation are not relevant. They deny that CRST provides sufficient funds for lodging and transportation, stating that removed drivers often bear these costs on their own and CRST will often recoup any advance it has made from a driver's paycheck later. Doc. No. 191-2 at ¶ 47. They also deny that it was CRST's practice prior to July 2015 to cover any lodging or transportation costs. Id.

CRST states that it pays HR layover pay to a complainant removed from a truck starting on the date of removal and ending the date the employee is paired with a new co-driver. Plaintiffs deny this with respect to all times prior to July 1, 2015. Id. at ¶ 48. After July 1, 2015, plaintiffs deny that HR layover pay was always paid to women removed from their truck due to a sexual harassment complaint. They claim that in 31 out of the 84 occasions on which a woman was removed from a truck due to sexual harassment from July 1, 2015, to the end of the class period, CRST paid no HR layover pay at all. Id. They add that CRST's policy states that the HR layover pay ends on the date the employee is offered a new pairing, which does not always coincide with the date she is actually paired with a new co-driver and is able to begin driving. Id.

The amount of HR layover pay is based on the highest minimum wage in the country, which CRST multiplies by ten hours per day. Doc. No. 171-2 at ¶ 49. CRST paid $ 100 per day when it implemented HR layover pay. It then paid $ 110 per day based on California's increase to its minimum wage. Id.

CRST states that prior to July 2015, a delay in pairing and continuation of driving exceeding 48 hours qualified the driver for layover pay of $ 40 per day. Plaintiffs deny this, stating that CRST's policy provided "[t]he truck must be available from empty time to dispatched pickup time no less than 48 hours to qualify for 1 layover." Doc. No. 191-2 at ¶ 50. They argue this excludes situations where a driver is off the truck. Plaintiffs also deny that CRST had a policy or practice of paying standard layover pay prior to July 1, 2015, stating that at least 49 out of 51 female drivers who had to leave their trucks due to sexual harassment during that time frame did not receive any layover pay. Id.

b. Plaintiffs' Statement of Additional Facts

Karen Carlson, CRST's Manager of Employee Relations, has authority over the investigation of harassment or discrimination complaints made by all drivers in the CRST fleet. See Doc. No. 198-1. Carlson reports to Angela Stastny, CRST's Director of HR. Stastny in turn, reports to Brooke Willey, CRST's Vice President of HR.

As of August 2016, women comprised approximately 13 percent of all drivers and five percent of lead drivers for CRST. CRST contends that it is approximately three to four times more successful than the industry average in attracting and retaining women as drivers. Id. at ¶¶ 54, 55. With regard to its policy of removing drivers who complain of sexual harassment (aside from the two exceptions concerning lead drivers and owners/operators), CRST states its policy is not limited to female drivers who complain of sexual harassment, but applies regardless of the gender of the complaining driver or accused driver and regardless of the nature of the complaint. Id. at ¶ 56.

Plaintiffs have compiled an exhibit identified as "Figure 1," which they contend is a chart summarizing information provided by CRST consisting of complaint files documenting occasions in which a female driver had to get off her truck due to sexual harassment, "trip archive" records for these female drivers documenting each trip they made and payroll records documenting how much they were paid. Id. at ¶ 57. CRST admits that it produced the information identified by plaintiffs but denies that "Figure 1" is an accurate compilation of such information. It disputes Figure 1 is evidence that would be admissible at trial for several reasons that I will discuss below. Id. I will consider CRST's objections to Figure 1 to apply to all of the assertions described below.

According to Figure 1, there were 135 occasions in which a female driver had to get off her truck due to sexual harassment between October 12, 2013, and December 5, 2017. CRST denies the legal conclusion that these women were all subjected to "sexual harassment." CRST states that in several of the cases plaintiffs rely on, the complaining driver exited the truck for reasons unrelated to alleged harassment. These reasons included things such as: update of commercial driver's license, truck maintenance and other disrespectful behavior. CRST also states that in many instances, the complaining driver requested to exit the truck. Id. at ¶ 58. Out of the 135 occasions plaintiffs cite, they contend 50 women were co-drivers and 85 women were students. CRST clarifies that Figure 1 does not list 135 different women, but admits that out of the 135 instances cited by plaintiffs in Figure 1, CRST's records show that 50 allegations were made by co-drivers and 85 allegations by student drivers. Id. at ¶ 59. None of the women in the 135 instances continued on their truck after complaining of sexual harassment. CRST states that the evidence shows that in some cases, the complainant did not make a complaint until she was already off the truck. Id. at ¶ 60. It cites one instance in which the female driver reported allegations three days after exiting the truck and another instance in which the female driver reported her allegations the day after she got onto a different truck. It also states again that some complainants exited the truck for reasons unrelated to the alleged harassment. Id.

According to plaintiffs, in nine of the 135 cases the female driver was physically kicked off the truck by the harasser and HR followed its policy of allowing the accused to continue driving. CRST denies that its files show that any female driver was "physically kicked off the truck by the harasser" and states that its files show that none of the named individuals stated that the alleged harasser "physically" removed her from the truck. Id. at ¶ 61. CRST also states that none of the named individuals complained until after her co-driver or lead driver reported her for unsafe driving. Id.

In 20 of the 135 cases, plaintiffs contend the female driver physically jumped off the truck due to harassment and the alleged harasser was permitted to keep driving pursuant to CRST's policy. CRST denies that its files show that the named individuals "physically jumped" off the truck. Id. at ¶ 62. In one instance, it states the files show that the complainant and alleged harasser both exited the truck because it required maintenance. In another instance, CRST states the file shows the complainant was quitting employment and had already put in her notice when she got of the truck. Id. With regard to whether it permitted the alleged harassers to keep driving, it notes that its files show that in one instance, the alleged harasser quit and did not continue on the truck. In many of the instances, CRST states the files show that the driver did not complain until several days after getting off the truck. It cites examples in which complainants waited four days, two days and a week after getting off the truck. Id.

In the remaining 106 cases, the driver complained to HR while on the truck and CRST followed its policy of removing the complainant from the truck and allowing the alleged harasser to continue driving. Id. at ¶ 63. CRST denies that its files show that each of these women complained to HR while on board the truck. Id. It states that in many instances, the women complained to individuals outside of HR and exited the truck prior to HR commencing its investigation. It provides three examples in support. Id. CRST also denies that the alleged harassers continued driving the truck in all instances. It cites two examples in which the alleged harassers resigned before or during the investigation. Id.

Plaintiffs contend that male drivers accused of harassment are routinely allowed to continuing working and earning money while HR investigates complaints. Id. at ¶ 64. In support of this assertion, plaintiffs have submitted responses from male drivers subject to investigation indicating that, at the time of their interview with HR, they were either working solo or with a new co-driver or student. Id. CRST argues that this assertion relies on inadmissible hearsay. Id. It also denies that the driver statements do not indicate whether the accused individual was actually operating the truck at the precise time of the interview by HR. It explains that HR does not interview the accused individual until it has an opportunity to interview the complainant. Id. It contends it attempts to interview the driver when he is not operating the truck. Id.

A complainant pulled off a truck must find a new co-driver before driving again. Id. at ¶ 65. CRST contends it works with the employee to locate a new co-driver. The complainant may have to travel, by bus or rental car, to meet her next potential co-driver or to pick up her next truck. Id. ¶ 66. CRST admits that drivers sometimes have to travel between loads but denies that this situation is unique to female drivers who complain of sexual harassment. Id. It also notes that CRST covers these travel expenses. Id.

Plaintiffs state that out of the 135 cases in which a female driver had to get off her truck due to sexual harassment, 51 of those complaints occurred between October 12, 2013, and July 1, 2015. Id. at ¶ 67. Prior to July 1, 2015, women who complained of sexual harassment and were removed from their trucks did not receive any pay during the time they had to spend off the truck in accordance with CRST's policy, pattern or practice. Id. at ¶ 68. CRST denies that Figure 1 shows it maintained the alleged policy, pattern or practice. Id. It states that prior to July 2015, when a delay in pairing or continuation of driving exceeded 48 hours, the driver was eligible to receive standard layover pay of $ 40 per day. Id. Plaintiffs assert that layover pay was provided on only one occasion out of the 51 instances during October 12, 2013, through July 1, 2015. Id. at ¶ 69. CRST cites evidence that two additional women received layover pay prior to July 2015. Id. Plaintiffs note that weeks could elapse before women who complained of harassment and removed from the truck could start working again. Id. at ¶ 70. CRST admits that various lengths of time elapsed, but denies the assertion to the extent it implies a cause for the length of time. It notes that some complainants failed to return calls or respond to DMs or other CRST representatives. Id. It cites examples in which some drivers failed to get on a bus, kept the rental vehicle longer than authorized or refused lead drivers who were offered. Id. In other instances, the driver was terminated, quit, or requested vacation. Id.

CRST produced two PowerPoint presentations from January and February 2014 that state the following:

When drivers raise allegations of sexual or other issues of harassment, and we remove them from the truck ... why is it that the accused can stay on earning money and the accuser gets stranded at a motel and loses money every day and has to wait for a new codriver ... Punished for raising concerns.

When a driver raises a concern of harassment or safety ... why not remove the accused from the truck when possible? It seems as though, if you raise a concern, it is the person who raises the concern who stands to loose [sic] money and time on the road.

Id. at ¶ 71 (citing Doc. No. 187-2 at 103, 109). CRST states that these documents reflect its ongoing efforts to strengthen its gender-neutral remedial policy. Id. CRST instituted its new HR Layover Pay policy on or after July 1, 2015. Id. at ¶ 73. The policy, providing for payment of $ 100 per day, was based on the highest state law minimum wage at the time, which was $ 10 per hour in California. Id. at ¶ 74. The HR layover pay policy is not announced to all drivers, but drivers are informed of it once they are involved with an allegation. Id. at ¶ 75. CRST states this is done so that it is used for the right reasons. Id. HR layover pay stops when a driver is offered a re-pairing rather than when she actually begins driving again. Id. at ¶ 76. CRST does not necessarily deny this, but states HR layover pay continues until the drivers "obtain[ ] a new team driver or until they arrive to their home should they voluntarily wish to go home." Id.

Out of the 135 cases when a female driver had to get off her truck due to alleged sexual harassment, 84 of those complaints were lodged between July 1, 2015, and December 5, 2017. Id. at ¶ 77. CRST denies that plaintiffs' Figure 1 supports that there were 135 instances in which a woman had to get off her truck due to sexual harassment or that 84 complaints were brought within the identified time frame. Id. According to CRST's President, Cameron Holzer, drivers with about one year of experience earn an average of $ 150 to $ 200 per day while driving. Id. at ¶ 78. Based on this estimate, plaintiffs contend every female driver with over a year's experience who received HR layover pay would lose $ 50 to $ 100 per day while waiting for her next assignment. Id. at ¶ 79. CRST denies this contention, stating that it assumes a driver would have earned this pay if she had remained on the truck and it does not take into account the driver's actual per-mile pay rate or length or duration of the discontinued trip. Id. Plaintiffs state that drivers are paid even lower than Holzer estimated, but that the HR layover pay still results in a pay cut for drivers the majority of the time. Id. at ¶ 80. CRST denies that plaintiffs' evidence supports that assertion and notes that drivers are paid on a per-mile basis for the length of the trip. It contends there is no baseline on which plaintiffs can measure a "pay cut" regarding HR layover pay in comparison to normal pay. Id.

Plaintiffs also reference column G of their Figure 1, which they contend records the number of days of work each woman lost as a result of harassment. Id. at ¶ 81. They state it reflects the number of days the driver was off her truck until she started driving her next truck. Id. Plaintiffs then calculated how much a driver would be paid per day based on HR layover pay or other layover pay and how much she would be paid per day while on her truck (based on the same time period and two prior paystubs). See id. at ¶¶ 82, 83. Based on these calculations, plaintiffs arrived at what they contend is a percentage of each woman's average daily pay lost during her wait time. They explain:

Plaintiffs subtracted the woman's average daily pay during her wait time from her average daily pay in the comparison period, in order to see how much pay she was missing out on each day while waiting. This absolute daily average loss is represented in Fig. 1 column M (P-App 1-7). Plaintiffs then divided this "missed" amount by her average daily pay in the comparison period, in order to see what percentage of her average daily pay had been lost. This percentage is represented in Fig. 1 column N (P-App 107). Where the woman experienced no loss, an 'x' is indicated.

Id. at ¶ 84. Plaintiffs conclude these calculations show that two-thirds of the female drivers (56 out of 84) who had to get off their trucks following their sexual harassment complaints from July 1, 2015, through the end of the class period experienced a significant pay cut during their wait time. Id. at ¶ 85. They further contend that 30 of these 56 women received no pay during their wait time. Id. at ¶ 86. Plaintiffs claim it is unknown whether two of the 84 women experienced a pay cut during their wait time because the records did not reveal what happened in those cases. Plaintiffs acknowledge that 25 of the 84 women avoided a pay cut. Id. at ¶ 87. In sum, plaintiffs claim that a female driver who was required to get off of her truck as a result of a sexual harassment complaint was totally unpaid or had her pay cut in at least 105 of the 135 total occasions.

CRST denies the cited evidence supports any of these assertions and adds that plaintiffs' calculations do not account for circumstances in which complainants failed to return calls or respond to DMs or other CRST representatives regarding a return to work, or circumstances where complainants quit, were terminated for reasons unrelated to their complaints or took vacation. Id. at ¶¶ 81-88. CRST denies that plaintiffs' calculations provide an accurate representation of per diem pay for a CRST driver. Id. It notes that they also do not account for natural fluctuations in pay for reasons such as load availability, truck availability, weather, planned home time and more. Id. CRST cites Cathy Sellars as an example. Id. at ¶ 83. She was paired with a co-driver from January 14 through January 19, 2014. They logged only one mile from January 14 through 17. CRST states that Sellars chose to exit the truck for reasons unrelated to any harassment complaint and returned to Riverside Terminal. She then stayed with her sister and declined to work for over two weeks. Id. However, plaintiffs' Figure 1 indicates she experienced a 100 percent pay cut. Overall, CRST maintains that plaintiffs have not offered admissible evidence in support of their assertions and that plaintiffs' calculations suffer from multiple flaws.

4. Analysis

CRST seeks summary judgment on plaintiffs' retaliation claim. Title VII prohibits employer actions that "discriminate against" an employee for engaging in protected conduct by opposing a practice that Title VII forbids. See 42 U.S.C. § 2000e-3. Plaintiffs allege that CRST retaliated against them for reporting sexual harassment by removing them from the truck in which they allegedly experienced the harassment and not paying them, or significantly reducing their pay, while the alleged harasser continued driving and earning money.

To survive a motion for summary judgment on their retaliation claim, plaintiffs must either offer direct evidence of retaliation or create an inference of retaliation under the McDonnell Douglas burden-shifting framework. Lors v. Dean , 746 F.3d 857, 865 (8th Cir. 2014) (citing Young-Losee v. Graphic Packaging Int'l, Inc. , 631 F.3d 909, 912 (8th Cir. 2011) ). Direct evidence must show "a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." Russell v. City of Kansas City , 414 F.3d 863, 866 (8th Cir. 2005).

If there is no direct evidence, the burden-shifting analysis applies. See Ellis v. Houston , 742 F.3d 307, 319 (8th Cir. 2014) (retaliation claims "analyzed under the same McDonnell Douglas burden shifting framework as Title VII claims"). Under this framework, an inference of retaliation arises if plaintiffs establish a prima facie case by showing (1) that they engaged in statutorily protected conduct, (2) that they suffered an adverse employment action and (3) that a causal connection exists between the two. Fiero v. CSG Sys., Inc. , 759 F.3d 874, 880 (8th Cir. 2014). If retaliation is inferred, the burden shifts to CRST to articulate a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817. If CRST meets that burden, then plaintiffs must show that the non-retaliatory reason provided is pretext and that the true reason for the adverse action was retaliation. Id.

CRST argues it is entitled to summary judgment on plaintiffs' retaliation claim for two reasons:

1. Plaintiffs cannot demonstrate an adverse employment action

2. Plaintiffs cannot show that their removal from the truck was the result of retaliation

See Doc. No. 171-1. With regard to the second reason, CRST argues that it has legitimate, non-retaliatory reasons for its actions and that the record lacks any evidence of pretext. I will consider each argument in turn.

a. Adverse Employment Action

CRST argues plaintiffs cannot establish an adverse employment action. They characterize the alleged adverse action as removal from a harassing environment. Plaintiffs allege that the adverse employment action in this case is CRST's policy of removing complainants from the truck and subjecting them to no pay or less pay. CRST suggests that plaintiffs have not alleged this as the adverse action since the beginning of this lawsuit. I disagree. Their complaint alleges:

CRST maintains a pattern or practice of retaliating against the Named Plaintiffs and members of the proposed class for opposing sexual harassment by taking action against workers who complain about sex discrimination, including but not limited to: requiring a female driver who has complained of harassment to leave the truck and allowing her male co-driver to continue onward .... forcing them to wait and earn nothing while seeking a new co-driver....

Doc. No. 2 at ¶ 102. While discovery has revealed greater details concerning CRST's practices, plaintiffs have maintained the basic concept that it is not the removal itself that is problematic, but the lack of pay or decrease in pay that comes with the removal.

As the Eighth Circuit has acknowledged, the Supreme Court clarified the term "adverse employment action" in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). See AuBuchon v. Geithner , 743 F.3d 638, 641 (8th Cir. 2014). Prior to Burlington , the Eighth Circuit required a "tangible change in duties or working conditions" to demonstrate an adverse employment action. Id. (citing Manning v. Metro. Life Ins. Co., Inc. , 127 F.3d 686, 692 (8th Cir. 1997) ). These included things such as "hiring, granting leave, discharging, promoting and compensating." See Burlington Northern , 548 U.S. at 60, 126 S.Ct. 2405. Under the objective standard articulated in Burlington Northern , an employee can demonstrate an adverse employment action by showing "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 67, 126 S.Ct. 2405. In the context of a class action pattern or practice claim, plaintiffs must show there is a genuine issue of material fact that CRST "regularly and purposefully" retaliates against women who complain of sexual harassment by subjecting them to an adverse employment action. See E.E.O.C. v. McDonnell Douglas Corp. , 191 F.3d 948, 951 (8th Cir. 1999).

CRST argues that its policy of removing sexual harassment complainants from the truck was a not an adverse employment action because it essentially amounted to paid administrative leave. The parties agree that prior to July 2015, the employee could receive layover pay at a rate of $ 40 per day for any delay longer than 48 hours in locating a new co-driver. They also agree that since July 2015, the employee could receive HR layover pay (previously $ 100 per day and now $ 110 per day). Drivers are otherwise paid on a per-mile basis and not during breaks between load assignments. For this reason, CRST contends the layover pay amounts to paid administrative leave, which the Eighth Circuit has concluded is not an adverse employment action as a matter of law. See Singletary v. Mo. Dep't of Corr. , 423 F.3d 886, 892 (8th Cir. 2005) ("We find the reasoning of Fourth, Fifth, and Sixth circuits persuasive and hold that [plaintiff] did not suffer an adverse employment action by being placed on administrative leave."). Alternatively, CRST argues that time without pay is part of the regular course of business for CRST drivers because they routinely move from truck to truck with periods of time in between. See Doc. No. 198 at 9. It notes that "short suspensions that leave no lasting effect on either the employee's present or future position or her pocketbook" cannot constitute an adverse employment action. Id. (quoting Dickerson v. SecTek, Inc. , 238 F.Supp.2d 66, 80 (D.D.C. 2002) ).

Plaintiffs state that in at least 49 out of the 51 instances from the beginning of the class period to July 1, 2015, in which a female driver had to get off her truck after complaining of sexual harassment, she was completely unpaid during the time she was off a truck. After July 1, 2015, plaintiffs state that in 30 instances the complainant was unpaid as well. They rely on their summary exhibit, Figure 1, in support. CRST argues plaintiffs' evidence is inadmissible and disputes plaintiffs' generalizations, arguing that there are other legitimate reasons why drivers were not paid, including that they quit or they took vacation time.

It is important to keep in mind the pattern-or-practice nature of this claim modeled on Int'l Brotherhood of Teamsters v. United States , 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The Tenth Circuit offers this helpful summary:

Pattern-or-practice cases differ significantly from the far more common cases involving one or more claims of individualized discrimination. In a case involving individual claims of discrimination, the focus is on the reason(s) for the particular employment decisions at issue. Cooper v. Fed. Reserve Bank of Richmond , 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). In contrast, the initial focus in a pattern-or-practice case is not on individual employment decisions, "but on a pattern of discriminatory decisionmaking." Id. Thus, the order and allocation of proof, as well as the overall nature of the trial proceedings, in a pattern-or-practice case differ dramatically from a case involving only individual claims of discrimination. Teamsters , 431 U.S. at 357-62, 97 S.Ct. 1843.

Pattern-or-practice cases are typically tried in two or more stages. During the first stage of trial, the plaintiffs' "burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers." Id. at 360, 97 S.Ct. 1843. Thus, "[a]t the initial, 'liability' stage of a pattern-or-practice suit the [plaintiffs are] not required to offer evidence that each person for whom [they] will ultimately seek relief was a victim of the employer's discriminatory policy." Id. Instead, plaintiffs' "burden is to establish that such a policy existed." Id. "The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiffs'] proof is either inaccurate or insignificant." Id. "If an employer fails to rebut the inference that arises from the [plaintiffs'] prima facie case," the finder of fact can conclude "that a violation has occurred" and the trial court can award prospective equitable relief. Id. at 361, 97 S.Ct. 1843. If the plaintiffs also seek "individual relief for the victims of the discriminatory practice," the case moves into the second or subsequent stages. Id. In these additional proceedings, it must be determined whether each individual plaintiff was a victim of the discriminatory practice.

Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1106 (10th Cir. 2001) (footnotes omitted). Therefore, there are two issues at play. One is whether there is a genuine issue of material fact as to whether CRST has a policy, pattern or practice or "standard operating procedure" of not paying women who complain of sexual harassment, or of paying them significantly less than they otherwise would have earned following their removal from the truck. See Morgan v. United Parcel Serv. of Am., Inc. , 380 F.3d 459, 463 (8th Cir. 2004). The other is whether there is a genuine issue of material fact regarding whether that standard operating procedure involves an adverse employment action. Underlying the first issue is whether plaintiffs' evidence is admissible. I will address that issue first.

i. Admissibility of Plaintiffs' Evidence

Federal Rule of Civil Procedure 56(c)(2) provides: "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." A party cannot rely on inadmissible evidence to defeat summary judgment. See Brooks v. Tri-Systems, Inc. , 425 F.3d 1109, 1111 (8th Cir. 2005). "[A] successful summary judgment defense requires more than argument or re-allegation; [the party] must demonstrate that at trial it may be able to put on admissible evidence proving its allegations." JRT, Inc. v. TCBY Sys., Inc. , 52 F.3d 734, 737 (8th Cir. 1995). The court "may consider only the portion of the submitted materials that is admissible or usable at trial." Walker v. Wayne County, Iowa , 850 F.2d 433, 434 (8th Cir. 1988).

Here, plaintiffs rely on Figure 1, a summary exhibit based on CRST records. CRST argues this exhibit is inadmissible under Federal Rule of Evidence 1006 because it was not prepared by a witness available for cross-examination, but instead by plaintiffs' counsel. Moreover, it states that it does not summarize evidence, but manipulates it through plaintiffs' self-serving calculations. Finally, CRST argues that the documents behind Figure 1 are inadmissible because they are hearsay or contain hearsay.

Plaintiffs argue that the information in Figure 1 is capable of being presented in admissible form at trial, which is all that they must show at the summary judgment stage. They state the source materials for Figure 1 are CRST's own business records, which are included in the appendix, and are admissible under Federal Rule of Evidence 803(6) as business records. Finally, they argue that Rule 1006 specifically provides that the exhibit may contain a "calculation" and note that it may be used as a demonstrative aid, even if it is not admissible at trial.

Rule 1006 allows for "summaries to prove content" stating:

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals and duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Fed. R. Evid. 1006. The Eighth Circuit has stated such evidence is properly admitted when:

(1) the charts fairly summarize voluminous trial evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary.

United States v. Boesen , 541 F.3d 838, 848 (8th Cir. 2008) (quoting United States v. Green , 428 F.3d 1131, 1134 (8th Cir. 2005) ). A summary may include assumptions and conclusions as long as those assumptions and conclusions are based on evidence in the record. Green , 428 F.3d at 1134.

Plaintiffs argue that I should focus not on Figure 1, but on the records underlying it. They argue these records are admissible under Rule 803(6) and that, if they choose to do so, they may "present the admissible data currently summarized in Figure 1 in a format compiled by a witness who is available for cross-examination, and [ ] omit the voluminous records summarized by that chart." Doc. No. 201 at 4. In other words, they argue that they could produce admissible evidence under Rule 1006 similar to Figure 1 at trial, based on CRST's admissible business records, which they rely on in response to CRST's motion for partial summary judgment.

Rule 803(6) excludes "records of a regularly conducted activity" from the rule against hearsay if:

(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6). The underlying records consist of 136 CRST Employee Relations Investigation Forms regarding different individuals, although there are multiple forms for some individuals. See Doc. No. 191-3 at 2-11. They also consist of emails, notes of complaints, written statements, payroll statements, trip archive records, termination forms and disciplinary action forms. Id. Having reviewed these records, it does appear that they may fall within the scope of Rule 803(6) such that they would be admissible at trial (with proper foundational support to establish the rule's requirements). If the records themselves are admissible, then it will be possible for plaintiffs to present a summary exhibit, similar to Figure 1, based on these records that would comply with Eighth Circuit requirements for admission of that exhibit. At this stage, however, in considering whether plaintiffs have put forth admissible evidence in defense of CRST's motion for partial summary judgment, I will primarily consider the underlying CRST records as opposed to plaintiffs' Figure 1.

ii. Is There a Policy, Pattern or Practice?

The next question is whether plaintiffs have demonstrated there is a genuine issue of material fact regarding whether CRST maintained a policy, pattern or practice of requiring female drivers who complained of sexual harassment to get off the truck without pay or with a significant reduction in pay. Plaintiffs' evidence must allow a reasonable jury to conclude that such an action was not isolated or accidental, but CRST's standard operating procedure.

In my order certifying the class, I found that the deposition testimony of Karen Carlson, CRST's Manager of Employee Relations, along with declarations from some of the plaintiffs, were sufficient to satisfy the commonality requirement with regard to CRST's alleged policy, pattern or practice of requiring women complaining of sexual harassment to get off the truck upon making a complaint, thus resulting in a loss of compensation. Carlson testified:

During the training that I have conducted a couple of times a year, it is communicated that the accuser is the individual that gets off the truck because we want to make sure that they are in a safe location, a safe environment. If the accuser - Let's see - If the accuser is the lead driver, then the accuser has to stay on the truck because the student can't remain on the truck and drive the truck because they are not qualified yet. So in that particular case the student would have to get off the truck. But in the majority of cases, it would be the accuser that gets off the truck. So we engaged in a dialogue with the driver managers when these situations arise and if they have questions, they call us on the telephone, whether it be me or any of our employee relations representatives. And we reaffirm that the accuser needs to get off the truck, we need to get them a hotel and cab, then we need to do so immediately so that we can begin the investigation.

Doc. No. 85 at 36. Plaintiffs now submit "a complete set of all examples of [CRST]'s policy in action." See Doc. No. 191-1 at 3, n.1. As noted above, plaintiffs contend there were 135 occasions in which women who complained of sexual harassment were not permitted to continue working on their trucks after complaining. Doc. No. 191-1 at 3. They state that in nine cases the woman was kicked off the truck by the harasser, in 20 cases the woman voluntarily got off the truck due to the harassment and in the remaining 106 cases, the woman complained to HR while on board the truck and CRST told her to get off the truck. Having reviewed the records plaintiffs cite in support of these figures, I find that this evidence would allow a reasonable jury to conclude that CRST maintained a standard operating procedure of requiring female drivers complaining of sexual harassment to exit the truck. That is only one half of the relevant question, however.

The other half is whether, in requiring the female complainants to exit the truck, CRST subjected these drivers to an unpaid suspension or a significant pay cut. Prior to July 1, 2015, plaintiffs allege it was CRST's policy, pattern or practice to pay the drivers nothing for the time they spent off a truck. They state that on 49 out of the 51 occasions from October 12, 2013, to July 1, 2015, in which a woman had to get off her truck due to sexual harassment, CRST paid the driver nothing. CRST argues that drivers during this time were eligible to receive the standard layover pay of $ 40 per day. Plaintiffs state that this occurred in only one instance on October 23, 2014, for class member Claudia Lopez. See Doc. No. 187-6 at 9. Based on the record before me, I find plaintiffs have demonstrated a genuine issue of material fact as to whether CRST maintained a policy, pattern or practice from October 12, 2013, through July 1, 2015, of failing to pay drivers complaining of sexual harassment after removing them from the truck.

The situation is far different for the period after July 1, 2015, plaintiffs state there are 84 cases where a woman had to get off her truck due to sexual harassment. These complaints occurred between July 1, 2015 and December 5, 2017. See Doc. No. 191-1 at 8. Out of these 84 cases, plaintiffs claim 56 experienced a pay cut, with 30 receiving no HR layover pay or other layover pay. Id. They state that there was insufficient information for two of the women and that in only 25 cases, the complaining driver was able to avoid a pay cut following removal from the truck. Id. In sum, and upon combining both time periods, plaintiffs represent that in 105 out of 135 occasions in which female drivers complained of sexual harassment, the driver was totally unpaid or experienced a pay cut following her claim and removal from the truck. Id.

CRST focuses on the removal aspect of the alleged policy, pattern or practice, arguing that it only removes complaining employees from the allegedly harassing environment and does not suspend them. See Doc. No. 198 at 8. Moreover, it argues that its removal policy does not have the intent or effect of suspending employees without pay, or with a significant pay cut, because its working environment routinely requires employees to move from truck to truck with periods of time in between. Id. at 9. It states that "removing a complaining employee from the spec