Posted 03-11-2015

A recent decision filed by the Fourth District, California Courts of Appeal on 1/14/2015 in the case ofShank v. CRST Van Expedited highlights the risks of judging the merits of a complaint, without investigating! Plaintiff Karen Shank was employed by defendant CRST Van Expedited, Inc., a company related to defendant CRST International, Inc. (collectively CRST), as a trainee truck driver. Co-Defendant John Wilson was plaintiff’s trainer. After Ms. Shank quit in 2005, she filed an EEOC complaint alleging sexual harassment/constructive discharge in August, and then filed her lawsuit in 2006. CRST counter-sued, for the $3,600 tuition fee for driver training that it advanced to Shank subject to her working for six months as a driver after training. After a lengthy trial, the jury found in her favor, awarding her $391,000 in compensatory damages, $1.17 million in punitive damages against CRST, and $3,500 in punitive damages against Wilson. After trial, the court awarded plaintiff’s attorney fees of $434,000.

The chronology of events highlight how NOT to handle a sexual harassment complaint, and the importance of initiating competent workplace investigation of such a complaint. Collectively, it was these failures which undoubtedly resulted in the punitive damages award from the jury.

Shank claimed in the suit that, during on the road driver training, her trainer Wilson made numerous sexually suggestive comments to her, touched her leg and stomach inappropriately, and asked if he could “tickle” her. One night, when Wilson and Shank were forced to share a room (and bed) by CRST policy requiring them to pay out of pocket for a second room, Shank claimed that Wilson raped her. She did not report the rape or make any complaint at that time, and later he signed off on her successfully completing her training. She was assigned to a co-driver but, after one day, complained to her manager, Mr. Bruns, that she wanted to quit because she didn’t want to be sexually harassed and that her co-driver Cotter had wanted a “boyfriend/girlfriend” situation. He asked her to think about it, and offered to partner her with another driver. She also said that Wilson had made suggestive comments to her and acted inappropriately. Not thinking it was that important, Bruns did not investigate, did not talk to either driver, made a brief note in Cotter’s file, and did NOT report the matter to HR. Shortly after quitting, Shank sent a resignation letter to CRST, saying she felt forced to sleep with a male co-driver or get “kicked off” the truck. She also said there were problems with her trainer, but did not report any rape. Bruns again did not report the matter.

When CRST tried to collect the tuition cost back, Shank told the collection agent that she had to quit because she was sexually harassed and raped, and shouldn’t have to pay the money back. The agent reported the conversation to an HR generalist, who called Shank and asked for details. She told Shank that they couldn’t do anything without a police report. She “felt” that Shank was only concerned about the tuition, and that her other complaints were not serious. She did NOT initiate an investigation or even speak to the two drivers. In August 2005, she filed her EEOC complaint, and the HR director learned of the matter. Still, no investigation was initiated. Although the drivers were interviewed, no other potential witnesses were interviewed, including other female drivers. The drivers denied any wrongdoing, and Wilson claimed that he and Shank had consensual sex. Because it was her word against his, the director felt that no further action was warranted.

A year later at trial, Shank presented an expert witness who stated that CRST had failed to investigate properly. Obviously, the jury agreed, based on its findings and awards!

What this means to you:

Failure to notify HR of a potential sexual harassment complaint can have serious consequences. The goal in doing so, is to have your company “experts” determine whether an investigation is warranted, who should conduct it (many companies now hire a third party with expertise to do them), and the scope of the investigation to meet the employer’s legal responsibilities. In this case, HR itself woefully failed to meet their own responsibilities to initiate a proper workplace investigation of sexual harassment complaints. HR’s failure was prejudging the end result, based on incomplete information. A thorough investigation would have disclosed numerous problems that needed redress, such as the CRST policy about drivers having to share a room, other women drivers who had similar complaints, and a company-wide culture of unacceptable sexually suggestive comments and touching. Managers of course must be provided employment law training, so that they can recognize these issues. All employees, including HR, need to undergo harassment prevention training and respectful workplace training and, in appropriate cases, individualized sensitivity training to prevent what happened here.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.