U.S. Equal Emp't Opportunity Comm'n v. Stan Koch & Sons Trucking, Inc.

Decision Date30 August 2021
Docket NumberCase No. 19-cv-2148 (HB)
Citation557 F.Supp.3d 884
CourtU.S. District Court — District of Minnesota

Ann Henry, Pro Hac Vice, Miles Shultz, Pro Hac Vice, Elizabeth B. Banaszak, Pro Hac Vice, Ethan Michael Morley Cohen, U.S. Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.

Barry Moscowitz, Pro Hac Vice, Thompson Coe Cousins & Irons, L.L.P., Dallas, TX, Kenya C. Bodden, Kevin M. Mosher, Brian Michael Hansen, Thompson, Coe, Cousins & Irons, L.L.P., St. Paul, MN, for Defendant.


HILDY BOWBEER, United States Magistrate Judge1

Plaintiff U.S. Equal Employment Opportunity Commission (EEOC) brought this Title VII enforcement action on August 7, 2019, alleging that from February 2013 through January 2018 Defendant Stan Koch & Sons Trucking, Inc. (hereafter "Koch") made employment decisions based on a physical abilities test that had a discriminatory impact on female drivers. Discovery and dispositive motion practice was bifurcated between a first phase focusing on liability and, if liability is found, a second phase focusing on damages. (See Pretrial Scheduling Order (Phase I) [ECF No. 64].) This matter is now before the Court on the EEOC's Motion for Summary Judgment (Phase I) [ECF No 84].

Upon consideration of the parties’ briefs, evidentiary submissions, and oral argument, the Court concludes the EEOC has established a prima facie case that Koch's use of the CRT test resulted in a disparate impact upon female applicants for driver positions. The Court further concludes that Koch has failed to present sufficient evidence to create a triable issue of fact that its use of the CRT test was supported by a business justification, i.e., it was job-related and consistent with a business necessity. Finally, Koch was unable to demonstrate that it suffered prejudice as the result of any delay by the EEOC in bringing this case, so the affirmative defense of laches is unavailable to it here.

The Court therefore will grant the EEOC's Motion for Summary Judgment in its entirety.

I. Background
A. The Driver Job at Koch

Koch is a Minnesota-based trucking company that employed between 600 and 650 drivers across the United States during the relevant time period. (Pl.’s Ex. 1 (hereafter "Koch 30(b)(6) Dep. Tr.") at 102:18–20 [ECF No. 89-1]; Pl.’s Ex. 2 (hereafter "Sullivan Dep. Tr.") at 24:3–13 [ECF No. 89-2].) Koch's drivers were assigned to a specific fleet, hauling a specific type of cargo. (Koch 30(b)(6) Dep. Tr. at 101:6–23.) They drove either enclosed trailers (called "vans") or flatbed trailers, depending on the freight they were hauling. (Id. )

In general, Koch's drivers were not responsible for loading or unloading the freight they carried. (Id. at 103:24–104:10.) The main physical requirements of the job for a driver operating a van were to get into and out of the cab of the truck, climb on and off the back of the truck, inspect the truck, which included stooping and crouching, and crank up and down the dolly legs that stabilized the trailer when it was not connected to the cab. (Id. at 105:1–106:16.) Drivers of flatbed trailers also had to be able to secure their cargo using tarps, straps, or chains. (Id. at 108:1–23.) Depending on the fleet to which the driver was assigned, he or she might have additional physical requirements. For example, a driver assigned to the fleet carrying Polaris all-terrain vehicles (ATVs) was also required to assemble a decking and ramping system to load the ATVs into a two-tier structure on the trailer. (Id. at 106:22–107:16.)

Prior to April 2009, to be qualified to drive for Koch, an applicant had to have a commercial driver's license, one to two years of prior relevant driving experience, and satisfactorily complete various screenings, such as a criminal background check and a driving test. (See id. at 85:22–87:2, 97:15–24; Sullivan Dep. Tr. at 18:7–12.)

B. The CRT Test and Its Use at Koch

In April 2009, Koch began also requiring applicants to pass a physical abilities test, called the "CRT test." (See Koch Resp. to RFA No. 1 [ECF No. 89-8].) New drivers were required to pass the CRT test at their orientation; if they failed the test, their job offers were revoked. (Koch 30(b)(6) Dep. Tr. at 35:14–21.) During this same period Koch also began requiring the test for any of its already-hired drivers who wanted to change fleets or return to work after a leave of absence of 30 days or more. (Id. at 36:15–37:21.) If a driver failed the test, he or she had to wait at least six months before reapplying to work for Koch. (Id. at 43:6–10.)

The CRT test is administered on an isokinetic apparatus that was developed and sold by a company called Cost Reduction Technologies (CRT). The CRT test measures a person's range of motion and torque in their shoulders, knees, and trunk. (See Pl.’s Ex. 14 (hereafter "CRT 30(b)(6) Dep. Tr. Vol. 1") at 14:2–18 [ECF No. 89-14]; Pl.’s Ex. 15 (hereafter "CRT 30(b)(6) Dep. Tr. Vol. 2") at 35:10–14 [ECF No. 89-15].) It then computes this information using a proprietary algorithm to generate a "Body Index Score" (BIS). (CRT 30(b)(6) Dep. Tr. Vol 1 at 14:10–18.) CRT assigns a minimum BIS to each exertional strength level as defined by the Department of Labor's Dictionary of Occupational Titles based upon a formula developed by CRT. (CRT 30(b)(6) Dep. Tr. Vol. 2 at 32:6 – 35:7; Def.’s Ex. D at 5 [ECF No. 95-4]; Def.’s Ex. G [ECF No. 95-7].)

CRT markets the test as preventing "musculoskeletal disorder

injuries to knees, shoulders, and back" by matching the physical abilities of a job applicant to the physical requirements of a job. (CRT 30(b)(6) Dep. Tr. Vol. 2 at 50:7–24; 56:11–17.) Koch adopted the CRT test because it believed requiring job applicants to pass the test would reduce workers’ injuries and related costs. (Koch 30(b)(6) Dep. Tr. at 14:17–21; 23:11–24:10.)

In 2009 Koch hired NovaCare Work Strategies to analyze the work tasks of its various driver positions and classify them according to exertion level, such as "medium duty" or "heavy duty," under the definitions provided in the Dictionary of Occupational Titles. (See Def.’s Ex. I [ECF No. 95-9]; Def.’s Ex. H at 433–44 [ECF No. 95-8].) These 2009 job task analyses were then "used to ascertain the ... BIS needed to perform the duties of the position according to CRT's formula." (Def.’s Resp. at 3–4 [ECF No. 94].) From April 2009 until approximately February 2016, Koch required its driver applicants to have a BIS of 171 or higher in order to work in a "medium-duty job." (Koch Resp. to Interrogatory 20 [ECF No. 89-9]).

In 2015 Koch hired Minnesota Occupational Health to conduct a new job task analysis, which was finalized and approved in June 2016. (See Def.’s Ex. M [ECF No. 95-13]; Def.’s Ex. O [ECF No. 95-16].) Because the new analysis classified fleets differently, around February 2016 Koch lowered the minimum passing score for most drivers to 151, although drivers of certain fleets still had to have a higher score. (Koch Resp. to Interrogatory 20).

In March 2017, Koch began letting applicants who failed the test by 10 points or less to retake it immediately, rather than to wait for six months. (Koch 30(b)(6) Dep. Tr. at 43:11–23.) Then, in July 2017, Koch revised its policy again to eliminate the 10-point requirement and permit any applicant to retake the test. (Id. at 47:18–22.) Koch stopped using the CRT test altogether in January 2018. (Koch Resp. to RFA No. 2 [ECF No. 89-8].)

C. Expert Evidence About Disparate Impact and Business Justification

The EEOC seeks relief on behalf of all women drivers at Koch who failed the CRT test between February 2013 and January 2018. To show disparate impact, the EEOC relies on the analysis of three experts. First, labor economist Erin George, Ph.D., analyzed the CRT test scores for drivers at Koch from April 6, 2009, through January 1, 2018. (Pl.’s Ex. 27 (hereafter "George Report") ¶¶ 9–17 [ECF No. 89-27].) Dr. George's analysis used Koch's records of the applicant's gender and test result, and categorized each test result as either passing or failing based on the minimum passing score that was in effect at the time of the test (151 or 171). (Id. ) Koch's records revealed that 115 of 248 female drivers never received a passing score on the CRT test. (Id. ¶ 7.) Dr. George found that 93.9% of CRT tests taken by male applicants resulted in a passing score, whereas 52% of CRT tests taken by female applicants resulted in a passing score. (Id. ¶ 6.) She opined that this difference in pass rates was statistically significant, at 24.9 standard deviations. (Id. ) Based on this information, Dr. George concluded that Koch's use of the test was not neutral with respect to sex. (Id. ¶ 5.) If women had passed the CRT test at the same rate as their male counterparts, an additional 100 women—215 of 248 female applicants—would have passed the test. (Id. ¶ 7.)

The EEOC also retained an expert on statistics and data analysis, Ronald Landis, Ph.D., to evaluate any evidence of the CRT test's criterion validity. (See Pl.’s Ex. 28 (hereafter "Landis Report") [ECF No. 89-28].) Dr. Landis reviewed 15 years of Koch's workers’ compensation claims, from 2005 to 2020, and analyzed the prevalence of injuries that the CRT test claims to prevent. (Id. ¶¶ 21, 24–31.) Dr. Landis found "no evidence that drivers who passed the CRT test pre-hire sustained statistically significantly fewer injuries than drivers who did not take the test pre-hire." (Id. ¶ 38.) He concluded there was "no empirical evidence that supports the validity of this test in predicting relevant on-the-job injuries or the costs of those injuries." (Id. ¶ 3.)

Finally, the EEOC retained Charles Scherbaum, Ph.D., an expert on employee selection, personnel management, and test validation, to offer an opinion as to whether there is evidence that Koch's use of the CRT was valid under any...

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