United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-3159

___________________________

Equal Employment Opportunity Commission

lllllllllllllllllllll Plaintiff - Appellant

v.

CRST Van Expedited, Inc.

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

____________

 Submitted: September 11, 2014

 Filed: December 22, 2014

____________

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

____________

SMITH, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) appeals the district

court's award of $4,694,442.14 in attorneys' fees, expenses, and costs to CRST Van

Expedited, Inc. (CRST) following the parties' $50,000 settlement of the only

remaining claim, out of 154 individual claims, against CRST. For the reasons
discussed infra, we reverse and remand for further proceedings consistent with this

opinion. 

I. Background

A more extensive factual background of this case is available in our prior

opinion. See EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012)

("CRST IV"). We will provide only an abbreviated procedural history to provide

context for the present dispute. 

A. Underlying Action

"The . . . EEOC . . . filed suit in its own name against CRST . . . , alleging that

CRST subjected Monika Starke 'and approximately 270 similarly situated female

employees' to a hostile work environment, in violation of Title VII of the Civil Rights

Act of 1964 ('Title VII'), 42 U.S.C. § 2000e et seq." Id. at 664. Specifically, "[t]he

EEOC alleged thatCRST wasresponsible for severe and pervasive sexual harassment

in its New-Driver Training Program ('Training Program')." Id. at 665.

Thereafter, the district "court granted Janet Boot, Barbara Grant, Cindy

Moffett, Remcey Jeunenne Peeples, Starke and Latetsha Thomas's request to

intervene." EEOC v. CRST Van Expedited, Inc., No. 07–CV–95–LRR, 2013 WL

3984478, at *4 n.5 (N.D. Iowa Aug. 1, 2013) ("CRST III"). 

For approximately two years after the filing of the suit, the EEOC failed to

identify the women comprising the putative class; as a result, the district court

ordered the EEOC "to (1) immediately amend its list of 270 women as soon as it

learned of any women whose claims it no longer wished to pursue and (2) make all

women on whose behalf it sought relief available to CRST for deposition." CRST IV,

679 F.3d at 670 (citation omitted). The penalty for failing to present a particular

woman for deposition before the conclusion of discovery "would result in a

'discovery sanction' forbidding that woman from testifying at trial and barring the

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EEOC fromseeking relief on her behalf in the case." Id. (citation omitted). "Although

the EEOC complied with the court's directive and filed updated and corrected lists of

allegedly aggrieved individuals, it failed to make all of the identified individuals

available for deposition before [the deadline]." CRST III, 2013 WL 3984478, at *3.

The district court then enforced its prior order and "barred the EEOC from pursuing

relief for any individual not made available for deposition before the deadline." Id.

Thereafter, "the EEOC filed an Updated List of Class Members, which listed 155

allegedly aggrieved individuals for whom the EEOC was still pursuing relief and 99

individuals who the EEOC alleged were sexually harassed but for whom the EEOC

was not pursuing relief based on the court's . . . [o]rder." Id. (footnote omitted). 

In a series of orders, the district court ruled on CRST's various motions for

summary judgment. First, CRST moved for summary judgment on the EEOC's

purported pattern-or-practice claim. The district court found the motion "odd"

because no "pattern[-]or[-]practice claim" appeared in the EEOC's complaint. "'[T]he

EEOC did not allege that CRST was engaged in 'a pattern or practice of illegal sexbased discrimination or otherwise plead a violation of Section 707 of Title VII, 42

U.S.C. § 2000e-6.'" CRST IV, 679 F.3d at 676 n.13 (quoting EEOC v. CRST Van

Expedited, Inc. ("CRST II"), No. 07–CV–95–LRR, 2009 WL 2524402, at *7 n.14

(N.D. Iowa Aug. 13, 2009)).

The district court had "assumed [that] the EEOC had the right to

maintain a pattern-or-practice claim in this case but dismissed it with

prejudice. The court held as a matter of law that there was insufficient

evidence from which a reasonable jury could find that it was CRST's

'standard operating procedure' to tolerate sexual harassment."1

In its April 30, 2009 order, the district court stated, "In other words, the court

1

assumes without deciding that this is a sexual harassment pattern[-]or[-]practice

case."

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Id. (alteration in original) (emphasis added) (quoting CRST II, 2009 WL 2524402, at

*7 n.14); see also CRST III, 2013 WL 3984478, at *3 ("Specifically, the court held

that, to the extent the EEOC asserted a pattern[-]or[-]practice claim, such claim was

dismissed with prejudice and, consequently, CRST was liable only to the extent the

EEOC could prove individual claims ofsexual harassment."). In CRST IV, "[w]e, like

the district court, 'express[ed] no view as to whether the EEOC's investigation,

determination and conciliation of Starke's Charge would be sufficient to support a

pattern [-]or-practice lawsuit.'" 679 F.3d at 676 n.13 (quoting CRST II, 2009 WL

2524402, at *16 n.21). 

Second, CRST moved for summary judgment based on the statute of

limitations and other grounds; the district court "found that the applicable statute of

limitations barred the EEOC from seeking relief on behalf of 9 individuals and

barred, in part, the EEOC from seeking relief on behalf of another 3 individuals."

CRST III, 2013 WL 3984478, at *3 (citation omitted). 

Third, "the district court granted CRST summary judgment against three

women, including Starke, reasoning that the women were judicially estopped from

prosecuting their claims." CRST IV, 679 F.3d at 670 (footnote omitted) (citing EEOC

v. CRST Van Expedited, Inc. ("CRST I"), 614 F. Supp. 2d 968 (N.D. Iowa 2009)).

Fourth, CRST moved for summary judgment against certain interveners'

claims, and the district court granted in part and denied in part the motion. CRST III,

2013 WL 3983378, at *4. The court concluded that Boot's claims were frivolous or,

in the alternative, that she did not generate a genuine issue of material fact regarding

CRST's knowledge of the purported harassment and CRST's alleged failure to take

proper remedial action. Id. Additionally, the court dismissed Peeples's claims and

Nicole Cinquemano's claims, concluding that CRST lacked actual or constructive

knowledge of the alleged harassment. Id. "The court further held that the EEOC was

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barred from seeking relief at trial to the same extent these Plaintiffs-Interveners were

barred." Id. (citation omitted).

Fifth, CRST moved for summary judgment based on the class members' failure

to report the alleged harassment or CRST's prompt and effective response to the

reported harassment. Id. The district court granted the motion in part and denied it in

part, finding "that the EEOC was barred from seeking relief on behalf of [(1)] 11

individuals because CRST did not know or have reason to know that they were

sexually harassed and [(2)] 4 individuals because CRST adequately addressed the

sexual harassment." Id. 

Sixth, CRST moved for summary judgment against class members who did not

experience severe or pervasive sexual harassment, and the court granted the motion

in part and denied it in part, concluding "that the EEOC had failed to generate a

genuine issue of material fact as to whether 11 individuals had experienced severe or

pervasive sexual harassment and, consequently, held that the EEOC was barred from

seeking relief on their behalf." Id.

Seventh, CRST moved for summary judgment against class members whose

claims purportedly failed on two or more grounds, and the court granted the motion

in part and denied it in part. Id. The court prohibited the EEOC from seeking relief

on behalf of 46 women. Id. The EEOC conceded that "4 individuals did not suffer

actionable sexual harassment," and the court 

found that a reasonable jury could not find 42 individuals suffered from

actionable sexual harassment because they did not suffer severe or

pervasive sexual harassment and/or there was insufficient evidence to

show that CRST knew or should have known that the individuals

suffered sexual harassment yet failed to take proper remedial action.

Id.

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"Finally, . . . the district court barred the EEOC from seeking relief for the

remaining 67 women after concluding that the EEOC had failed to conduct a

reasonable investigation and bona fide conciliation of these claims—statutory

conditions precedent to instituting suit." CRST IV, 679 F.3d at 671 (citing CRST II,

2009 WL 2524402). The district court dismissed the EEOC's complaint because it had

"disposed of all the allegedly aggrieved women in the EEOC's putative 'class.'" Id. 

After the district court dismissed the action, CRST filed a bill of costs pursuant

to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920 and moved for

attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k). The district "court awarded CRST

$92,842.21 in costs, $4,004,371.65 in attorneys' fees[,] and $463,071.25 in out-ofpocket expenses, for a total of $4,560,285.11." CRST III, 2013 WL 3984478, at *5

(citations omitted). 

B. Appeal

"[T]he EEOC appeal[ed] the district court's dismissal of its claims as to 107

women." CRST IV, 679 F.3d at 670. On appeal, the EEOC argued that the district

court (1) erroneously barred it "from pursuing claims as to 67 women based on its

failure to reasonably investigate or good-faith conciliate," id. at 671; (2) erroneously

granted summary judgment on Starke's, Payne's, and Timmons's individual claims,

as well as on the EEOC's claims on their behalf, based on judicial estoppel, id. at 677;

(3) erroneously granted summary judgment on the merits of several of its hostile

work-environment claims against CRST, id. at 682–86; and (4) abused its discretion

in awarding CRST attorneys' fees and expenses, id. at 694. 

After analyzing each of the EEOC's contentions, 

we affirm[ed] in part, reverse[d] in part, and remand[ed] for further

proceedings consistent with this opinion. Specifically, we reverse[d] the

district court's grant of summary judgment on the EEOC's claims as to

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Monika Starke because the EEOC, suing as a plaintiff in its own name

under § 706, may not be judicially estopped because of Starke's

independent conduct. Additionally, we reverse[d] the district court's

grant of summary judgment on the EEOC's claims on behalf of Tillie

Jones because the EEOC . . . produced sufficient evidence to create a

genuine fact issue as to the severity or pervasiveness of harassment that

she allegedly suffered. Finally, we vacate[d], without prejudice, the

district court's award of attorneys' fees to CRST because, in light of

these aforementioned rulings, CRST [wa]s no longer a "prevailing"

defendant under 42 U.S.C. § 2000e–5(k). We affirm[ed] the remainder

of the district court's orders and remand[ed] for further proceedings

consistent with th[e] opinion.

CRST IV, 679 F.3d at 695 (footnote omitted). 

C. Remand

On remand, the EEOC withdrew its claim on behalf of Jones, explaining that

"the law of the case, specifically this Court's order of August 13, 2009 . . . , bars its

claim on behalf of Tillie Jones." The referenced order was the one in which the

district court barred the EEOC fromseeking relief on behalf ofsome claimantsfor the

EEOC's failure to fulfill the statutory conditions precedent to instituting suit, i.e., a

reasonable investigation and bona fide conciliation. 

Subsequently, CRST and the EEOC settled the case and jointly moved for an

order of dismissal. The Settlement Agreement that the parties entered provided that

CRST would pay $50,000 in settlement of the EEOC's claim on behalf of Starke. It

further provided:

4. This Agreement does not preclude CRST from pursuing

attorney[s'] fees and costs pursuant to the Order of the Eighth Circuit

dated May 8, 2012.

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5. Further, this Agreement does not preclude either [the] EEOC

or CRST from making any arguments relating to CRST's pursuit of

attorney[s'] fees and costs, including argumentsrelating to whether [the]

EEOC or CRST is the prevailing party.

The district court granted the motion to dismiss, and CRST then filed a bill of

costs and moved for an award of attorneys' fees. The EEOC resisted the bill of costs

and motion for attorneys' fees. First, it argued that its "case was comprised of a single

claim and that it won that claim." CRST III, 2013 WL 3984478, at *9. The district

court found this argument meritless, concluding that "on the face of the Complaint,

it is clear that the EEOC sought relief on behalf of at least two individuals and, thus,

there were at least two claims," i.e., Starke's claim and at least one class member's

claim. Id. Ultimately, the court found "that the EEOC asserted multiple and distinct

claims against CRST" and that CRST only lost on one of those claims—Starke's

claim. Id. at *10. Applying Supreme Court precedent, the court reasoned that "CRST

need not prevail on every claim to be entitled to an award of attorneys' fees";

therefore, it "consider[ed] whether there was a judicial determination on the merits

in favor of CRST on each claim other than the claim on behalf of Starke." Id. (citing

Fox v. Vice, 131 S. Ct. 2205 (2011)). 

Second, the EEOC argued that CRST was not a prevailing defendant because

"'a large portion of the claim was not determined on the merits.'" Id. (citation

omitted). The EEOC conceded "that 'CRST defeated the claim on the merits for 83

women for whom it was granted summary judgment.'" Id. (citation omitted). But it

"argue[d] that 'CRST won on reasons other than the merits as to [98] of the women

who were never deposed, and as to 67 women for whom . . . [the] EEOC failed to

meet the statutory prerequisites for suit.'" Id. (alterations in original) (citation

omitted). The court rejected the EEOC's argument. 

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As an initial matter, it found that CRST was the prevailing party as to the

EEOC's pattern-or-practice claim despite the EEOC's argument that it never asserted

a pattern-or-practice claimin its complaint. The court reasoned "that CRST justifiably

filed a motion for summary judgment on the pattern-or-practice claim given the

confusion the EEOC created as to whether it was pursuing such a claim" and that the

court subsequently granted CRST's motion for summary judgment on the merits of

that claim. Id. (citation omitted). 

The court then observed that after the dismissal of the purported pattern-orpractice claim, "there were 154 allegedly aggrieved individuals remaining and, thus,

CRST was required to defend against 154 sexual harassment claims." Id. (footnote

omitted). The court rejected the EEOC's contention that "the court's dismissal of

claims due to the EEOC's failure to satisfy the Title VII administrative prerequisites

is not a judicial determination on the merits." Id. The court found that the EEOC's

obligation to pursue administrative resolution is "an ingredient of the EEOC's claim"

as opposed to a "jurisdictional prerequisite"; therefore, the court concluded that its

"dismissal of claims due to the EEOC's failure to satisfy its pre-suit obligations is a

dismissal on the merits of the EEOC's claims." Id. 

The court also found that CRST was a prevailing party as to Jones's claim

because, although the EEOC voluntarily dismissed the claim on remand, "had the

EEOC not withdrawn its claim on behalf of Jones, the court would have dismissed it

pursuant to its August 13, 2009 Order." Id. at *11. 

Having determined that "CRST is the prevailing party on the EEOC's patternor-practice claim and 153 of the EEOC's individual claims," the court then

"consider[ed] whether those claims on which CRST prevailed are frivolous,

unreasonable or groundless." Id. 

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The district court did not individually analyze whether each of the 153 claims

and purported pattern-or-practice claim were frivolous, unreasonable, or groundless.

Instead, in summary fashion, it found that all the claims satisfied this standard.

As to attorneys' fees, expenses, and costs, the court concluded that CRST was

entitled to $3,724,065.63 in attorneys' fees incurred pre-appeal. Id. at *18. 

The court also awarded CRST "the reasonable amount of attorneys' fees

incurred during the appeal proceedings" in the amount of $465,230.47. Id. at *18–19.

The court justified its award as follows:

Specifically, the court has already found that CRST is the prevailing

party and that the Christiansburg standard is satisfied as to all of the

2

claims that the EEOC appealed, other than the claimon behalf of Starke.

Moreover, the court findsthat CRST provided sufficient documentation

and, as discussed above, the court finds that $465,230.47 reflects the

total appellate fees that CRST would not have incurred but for the

EEOC's unreasonable or groundless claims.

Id. at *19. 

Thus, the district court awarded $4,189,296.10 in attorneys' fees. Id. at *21.

And, the court awarded $413,387.58 in out-of-pocket expensesto CRST. Id. Finally,

the court also awarded CRST $91,758.46 in costs. Id. 

In total, the court found that CRST was entitled to $4,694,442.14 for attorneys'

fees, expenses, and costs. Id. 

Christansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). 2

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II. Discussion

On appeal, the EEOC argues that the district court erred in awarding

$4,694,442.14 for attorneys' fees, expenses, and costs to CRST. First, the EEOC

argues that the district court erred in finding that CRST was the prevailing party

because it "erroneously viewed [the] EEOC's case as 154 separate claims and thought

CRST deserved feesfor its success on 153 of them." The EEOC maintainsthat it "had

only one claim—that CRST violated Title VII by failing to prevent and remedy sexual

harassment ofits female trainees and drivers—and EEOC's settlement obtaining relief

for one claimant was sufficient to render [the] EEOC the prevailing party." Second,

the EEOC argues that the district court erroneously concluded that its dismissal of the

"EEOC's claim based on deficiencies in its presuit processing constituted a ruling on

the merits of [the] EEOC's claim." According to the EEOC, a dismissal based on

failure to satisfy presuit obligations does not equate to a merits-based decision

necessary for the court to find CRST to be a prevailing party. Third, the EEOC asserts

that even if this court agrees with the district court that CRST is a prevailing party,

"the district court erred in awarding fees to CRST because [the] EEOC's claim and

conduct of this litigation were not frivolous, groundless, or unreasonable." Finally,

the EEOC contends that the district court erred in awarding CRST appellate fees

because the "EEOC's decision to appeal the initial dismissal of its case was

reasonable, grounded in sound legal precedent, and supported by a reasonable hope

of reversal on appeal." We consider each of these arguments in turn. 

Whether a party is a "prevailing party" is a question of law that we review de

novo. DocMagic, Inc. v. Mortgage P'ship of Am., L.L.C., 729 F.3d 808, 812 (8th Cir.

2013). "We review for an abuse of discretion the district court's actual award of fees

and costs." Id. 

"It is the general rule in the United States that in the absence of legislation

providing otherwise, litigants must pay their own attorney's fees." Christiansburg,

434 U.S. at 415 (citation omitted). "But Congress has authorized courts to deviate

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from this background rule in certain types of cases by shifting fees from one party to

another." Fox, 131 S. Ct. at 2213 (citing Burlington v. Dague, 505 U.S. 557, 562

(1992) (listing federal fee-shifting provisions)). Like 42 U.S.C. § 1988, 42 U.S.C.

§ 2000e-5(k) is one of those "fee-shifting" provisions. Burlington, 505 U.S. at 562.

"The standards for assessing claims for attorney's fees pursuant to section 1988 and

under the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5(k), are identical." Barnes

Found. v. Township of Lower Merion, 242 F.3d 151, 158 n.6 (3d Cir. 2001) (citations

omitted). As a result, "cases used to interpret one statute may be used to interpret the

other." Id. (citations omitted). 

Just as § 1988 "allows the award of 'a reasonable attorney's fee' to 'the

prevailing party,'" Fox, 131 S. Ct. at 2213, so too does § 2000e-5(k). 42 U.S.C.

§ 2000e-5(k) ("In any action or proceeding under this subchapter the court, in its

discretion, may allow the prevailing party, other than the Commission or the United

States, a reasonable attorney's fee (including expert fees) as part of the costs, and the

Commission and the United States shall be liable for costs the same as a private

person."). Section 2000e-5(k) "authoriz[es] the award of attorney's fees to either

plaintiffs or defendants, and entrust[s] the effectuation of the statutory policy to the

discretion of the district courts." Christiansburg, 434 U.S. at 416 (emphasis added)

(footnote omitted). 

With this legal framework in mind, we now address each of the EEOC's

arguments in favor of reversal. 

1. Single v. Multiple Claims

First, the EEOC argues that CRST cannot be a prevailing party because the

EEOC brought only one "claim" against CRST—that CRST violated Title VII by

failing to prevent an remedy sexual harassment of its female trainees and

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drivers—and CRST did not prevail on this claim, as evidenced by the EEOC

obtaining a $50,000 settlement on Starke's behalf.3

Our task is to determine (1) how many claims the EEOC alleged in its

complaint and (2) what types of claims it alleged. 

"Section 706 of Title VII authorizes the EEOC to bring claims involving the

rights of aggrieved individuals challenging an unlawful employment practice on an

individual or class-wide basis[.]" U.S. EEOC v. Global Horizons, Inc., 860 F. Supp.

2d 1172, 1191 (D. Haw. 2012) (citations omitted). The EEOC may "seek class

action-type relief without complying with . . . Federal Rule of Civil Procedure 23."

Id. (quotation and citations omitted). 

Here, the EEOC brought suit under Title VII "to correct unlawful employment

practices on the basis of sex, and to provide appropriate relief to Monika Starke and

a class of similarly situated female employees of defendant CRST." (Emphasis

added.) The "Statement of Claims" provides that "two of [CRST's] lead drivers

subjected Starke to sexual harassment during their supervision of Starke" and that

"[o]ther similarly situated female employees of CRST were also subjected to sexual

harassment and a sexually hostile and offensive work environment while working for

CRST."

The EEOC argues at length that it is a "prevailing party" plaintiff because it 3

obtained the $50,000 settlement on Starke's behalf. We need not address whether the

EEOC is a "prevailing plaintiff" and instead focus on whether CRST is a "prevailing

defendant" because, as the district court explained, the EEOC "is not entitled to a fee

award under 42 U.S.C. § 2000e-5(k)." CRST III, 2013 WL 3984478, at *10 n.7

(citation omitted). This is because § 2000e-5(k) permits fees to prevailing parties

"other than the Commission or the United States." "Thus, it is of no consequence

whether the EEOC qualifies as a prevailing party." CRST III, 2013 WL 3984478, at

*10 n.7.

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We agree with the district court that the EEOC alleged more than one claim.

As the court explained, although the EEOC did not specify "how many individuals

the EEOC was pursuing relief on behalf of until the litigation was well under way,"

"the face of the Complaint" shows that "the EEOC sought relief on behalf of at least

two individuals and, thus, there were at least two [sexual-harassment] claims. By

October 15, 2008, it became clear that the EEOC was asserting approximately 270

claims, although that number dropped to 255 by May 12, 2009." CRST III, 2013 WL

3984478, at *9. Furthermore, the EEOC's argument that it asserted only one claim

against CRST in its complaint is undermined by our prior opinion. Throughout the

opinion, we referred to the EEOC's "claims." CRST IV, 679 F.3d at 670–74, 682–83,

685, 688, 689–90, 694–95. We disagree with the EEOC's assertion that we used the

term "claims" in the "non-technical sense." For example, we explained that "our de

novo review of the EEOC's claims concerning each woman confirms the district

court's conclusion that no fact issue remained" asto each woman's sexual-harassment

claim. Id. at 690 (emphasis added). Therefore, we agree with the district court "that

this case contained multiple and distinct claims for relief." CRST III, 2013 WL

3984478, at *9. 

As to what types of claims the EEOC's complaint alleges, we reiterate our prior

observation in the first appeal that "'the EEOC did not allege that CRST was engaged

in 'a pattern or practice' of illegal sex-based discrimination or otherwise plead a

violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6.'" CRST IV, 679 F.3d at

676 n.13 (quoting CRST II, 2009 WL 2524402, at *7 n.14). The district court merely

assumed without deciding that the EEOC brought a pattern-or-practice claim and

dismissed it with prejudice. Id. But the face of the complaint alleges no pattern-orpractice claim; therefore, it "seeks only to vindicate the rights ofthe individuals under

Section 706." U.S. EEOC v. Pioneer Hotel, Inc., No. 2:11–CV–1588–LRH–RJJ, 2013

WL 129390, at *4 (D. Nev. Jan. 9, 2013). Accordingly, to the extent that the district

court's order awarded attorneys' fees to CRST based on a purported pattern-orpractice claim, we reverse.

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In summary, we find that the EEOC's complaint alleged multiple sexualharassment claims seeking to vindicate the rights of individuals. 

2. Ruling on the Merits

The EEOC next argues that the district court's dismissal of 67 claims for the

EEOC's failure to satisfy Title VII's presuit obligations does not constitute a ruling

on the merits; therefore, the EEOC contends, CRST cannot be a prevailing party with

respect to those claims.

"[P]roof that a plaintiff's case is frivolous, unreasonable, or groundless is not

possible without a judicial determination of the plaintiff's case on the merits."

Marquart v. Lodge 837, Int'l Ass'n of Machinists &Aerospace Workers, 26 F.3d 842,

852 (8th Cir. 1994) (citation omitted). "At the very least, this means that the

[defendant] must have made a motion for summary judgment on the merits," as

opposed to, for example, moving for dismissal for lack of subject matter jurisdiction,

on res judicata grounds, or on statute-of-limitations grounds. Id. (citations omitted)

(holding that defendant was not a prevailing party for award of attorney fees in Title

VII action where plaintiff took voluntary dismissal with prejudice before any

summary judgment motion was made).

We previously set forth the EEOC's presuit obligations in CRST IV:

First, an employee files with the EEOC a charge "alleging that an

employer has engaged in an unlawful employment practice." [Occidental

Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359(1977)]. Second, "[t]he

EEOC is then required to investigate the charge and determine whether

there is reasonable cause to believe that it is true." Id. If reasonable

cause does exist, the EEOC moves to the third step, which attempts to

remedy the objectionable employment practice through the informal,

nonjudicial means "'of conference, conciliation, and persuasion.'" Id.

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(quoting 42 U.S.C. § 2000e–5(b)). However, if unsuccessful, the EEOC

may move to the fourth and final step and bring a civil action to redress

the charge. Id. at 359–60, 97 S.Ct. 2447 (quoting 42 U.S.C.

§ 2000e–5(f)(1)).

679 F.3d at 672 (alteration in original). 

The EEOC's ability to bring suit and the administrative process are "sequential

steps in a unified scheme for securing compliance with Title VII." Id. (quotations and

citations omitted). 

Whether the district court's dismissal ofseveral claims for failure of the EEOC

to satisfy its Title VII presuit obligations constitutes a ruling on the merits depends

on whether such presuit obligations constitute claim elements, as opposed to

jurisdictional prerequisites or nonjurisdictional prerequisites to filing suit. In Arbaugh

v. Y & H Corp., the Supreme Court addressed "whether the numerical qualification

contained in Title VII's definition of 'employer' affects federal-court subject-matter

jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim for

relief." 546 U.S. 500, 503 (2006). Title VII requires "as a prerequisite to its

application, the existence of a particular fact, i.e., 15 or more employees." Id. at 513.

The Court observed that "when Congress does not rank a statutory limitation on

coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in

character." Id. at 516. "Applying that readily administrable bright line to th[at] case,

[the Court] h[e]ld that the threshold number of employees for application of Title VII

is an element of a plaintiff's claim for relief, not a jurisdictional issue." Id.

After Arbaugh, the Fifth Circuit "conclude[d] that the EEOC's conciliation

requirement is a precondition to suit but not a jurisdictional prerequisite." EEOC v.

Agro Distrib., Inc., 555 F.3d 462, 469 (5th Cir. 2009). As a result, it held that the

EEOC's failure to conciliate does not deprive a federal court of subject matter

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jurisdiction. Id. But the Fifth Circuit did not address whether conciliation is an

element of the Title VII claim or merely a nonjurisdictional prerequisite to filing suit.

See id. 

Thereafter, the Supreme Court again addressed the issue of prerequisites to

filing suit in Reed Elsevier, Inc. v. Muchnick, holding that the Copyright Act's

requirement that copyright holders register their works before suing for copyright

infringement "is a precondition to filing a claim that does not restrict a federal court's

subject-matter jurisdiction." 559 U.S. 154, 157 (2010). The Court reached this

conclusion by comparing the numerosity requirement examined in Arbaugh to the

Copyright Act's registration requirement and finding that neither were jurisdictional

requirements. Id. at 161–66. But the Court also noted a difference between the

numerosity requirement at issue in Arbaugh and the registration requirement, stating,

"That the numerosity requirement in Arbaugh could be considered an element of a

Title VII claim, ratherthan a prerequisite to initiating a lawsuit, does not change this

conclusion . . . ." Id. at 165–66 (emphasis added). According to the Court, "[a]

statutory condition that requires a party to take some action before filing a lawsuit is

not automatically 'a jurisdictional prerequisite to suit.'" Id. at 166 (quoting Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). The Court concluded that the

registration requirement fit the "mold" of a nonjurisdictional prerequisite to filing suit

because it "imposes a precondition to filing a claim that is not clearly labeled

jurisdictional, is not located in a jurisdiction-granting provision, and admits of

congressionally authorized exceptions." Id. (citation omitted). As a result, the Court

found that the registration requirement "imposes a type of precondition to suit that

supports nonjurisdictional treatment under our precedents." Id. 

Here, neither party argues that the EEOC's preconditions to filing suit are

jurisdictional. See Agro, 555 F.3d at 469. Instead, the EEOC argues that its Title VII

presuit obligations are nonjurisdictional preconditions, as in Reed, while CRST

argues that such requirements are elements of the EEOC's cause of action, as in

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Arbaugh. If CRST is correct, then the district court's dismissal of claims for the

EEOC's failure to satisfy its presuit obligations would constitute a ruling on the

merits, as the EEOC would have failed to satisfy elements of the claims at issue. 

Reed makes clear that a statutory condition, although not jurisdictional, may be

a nonjurisdictional precondition to filing suit, as opposed to an element of the claim.

See id. at 165–66. We agree with the EEOC that its presuit obligations constitute

nonjurisdictional preconditions that are not elements of the claim. The EEOC's Title

VII presuit obligations set forth in 42 U.S.C. § 2005e-5(b) are more akin to the

registration requirement in Reed. First, Title VII requires the EEOC to issue a

reasonable cause finding and attempt conciliation before filing any lawsuit, not just

a sexual-harassment lawsuit. See 42 U.S.C. § 2000e-5(b). 

Second, we have never labeled such presuit obligations as "elements" of a Title

VII sexual-harassment claim. Instead, as we explained inCRST IV, a plaintiff asserting

a Title VII claim must show

(1) [that she belongs to] a protected group; (2) [that she suffered]

unwelcome harassment; (3) [that there was] a causal nexus between the

harassment and her membership in the protected group; (4) that the

harassment affected a term, condition, or privilege of [her] employment;

and (5) that the employer knew or should have known of the harassment

and failed to take prompt and effective remedial action.

679 F.3d at 685 (alterations in original) (quotations and citations omitted). 

Finally, in contrast to the Title VII numerosity requirement at issue in Arbaugh,

the EEOC's Title VII presuit obligations do not distinguish which employers are

subject to Title VII or whether an employer has violated Title VII. Instead, the EEOC's

compliance with its presuit obligations provides employers an opportunity to resolve

the dispute in lieu of litigation. 

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Because the EEOC's Title VII presuit obligations are not elements of the claim,

the district court's dismissal of 67 claims for the EEOC's failure to satisfy Title VII's

presuit obligations does not constitute a ruling on the merits. Therefore, CRST is not

a prevailing party asto these claims, and it is not entitled to an award of attorneys' fees

on such claims. See Marquart, 26 F.3d at 852.

4

3. Frivolous, Groundless, Unreasonable

Having determined that CRST may not recover attorneys' feesfor (1) claims that

the district court dismissed based on the EEOC's failure to satisfy its presuit

obligations and (2) the purported pattern-or-practice claim, we next address whether

CRST is entitled to an award of attorneys' fees based on "several of the district court's

dispositive rulings concerning the merits of [the EEOC's] hostile work-environment

claims against CRST." CRST IV, 679 F.3d at 682–83. 

"In interpreting section 706(k) [of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(k),] the Supreme Court has distinguished between prevailing Title VII

plaintiffs and prevailing Title VII defendants." Marquart, 26 F.3d at 848. A district

"court may award attorneys' fees to a prevailing Title VII plaintiff in all but very

unusual circumstances." Id. (quotation and citation omitted). By contrast, a district

"court may not award attorneys' fees to a prevailing Title VII defendant unless the

'court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundless, or

that the plaintiff continued to litigate after it clearly became so.'" Id. (alteration in

original) (quoting Christiansburg, 434 U.S. at 422).

"In applying these criteria," the district court must "resist the understandable

temptation to engage in post hoc reasoning by concluding that, because a plaintiff did

not ultimately prevail, his action must have been unreasonable or withoutfoundation."

For the same reason, CRST is not a prevailing party asto Jones's claim, which 4

the EEOC voluntarily dismissed for its failure to satisfy its presuit obligations. 

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Christiansburg, 434 U.S. at 421–22. "This kind of hindsight logic could discourage

all but the most airtight claims, for seldom can a prospective plaintiff be sure of

ultimate success." Id. at 422. "[T]he course of litigation is rarely predictable," and

"[d]ecisive facts may not emerge until discovery or trial." Id. Additionally, "[t]he law

may change or clarify in the midst of litigation. Even when the law or the facts appear

questionable or unfavorable at the outset, a party may have an entirely reasonable

ground for bringing suit." Id. "Hence, a plaintiffshould not be assessed his opponent's

attorney's fees unless a court finds that his claim was frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after it clearly became so." Id. "So

long asthe plaintiff has some basis for the discrimination claim, a prevailing defendant

may not recover attorneys' fees." EEOC v. Kenneth Balk &Assocs., 813 F.2d 197, 198

(8th Cir. 1987) (quotation and citation omitted). 

In summary, "a prevailing Title VII defendant is not entitled to attorneys' fees

unless we determine that the plaintiff's claim was frivolous, unreasonable, or

groundless." Marquart, 26 F.3d at 848 (citations omitted). Thus, "more rigorous

standards apply for fee awards to prevailing defendants than to prevailing plaintiffs

in Title VII cases." Id. (quotation and citation omitted). Only in "very narrow

circumstances" is a prevailing defendant entitled to an attorneys' fee award. Id.

(quotation and citations omitted). "[A] court may not award attorneys' fees solely

because the plaintiff did not prevail." Id. (citation omitted). 

In announcing the "frivolous, unreasonable, or groundless" standard,

Christiansburg did not address a scenario "involving multiple claims for relief that

implicate a mix of legal theories and have different merits." Fox, 131 S. Ct. at 2213.

"Some claims succeed; others fail. Some charges are frivolous; others (even if not

ultimately successful) have a reasonable basis. In short, litigation is messy, and courts

must deal with this untidiness in awarding fees." Id. at 2213–14. The Supreme Court

addressed the multiple-claim scenario in Fox, holding "that a court may grant

reasonable fees to the defendant [where the plaintiff asserts both frivolous and non-

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frivolous claims], but only for costs that the defendant would not have incurred but for

the frivolous claims." Id. at 2211. The Court explained that "a defendant may deserve

fees even if not all the plaintiff's claims were frivolous"; the defendant is entitled to

relief for "expenses attributable to frivolous charges." Id. at 2214. The defendant's

entitlement to relief "remainstrue when the plaintiff's suit also includes non-frivolous

claims." Id. While a defendant "is not entitled to any fees arising from these nonfrivolous charges," "the presence ofreasonable allegations in a suit does not immunize

the plaintiff against paying for the feesthat his frivolous claims imposed." Id. (citation

omitted). 

Pursuant to Fox, "a court may reimburse a defendant for costs under [§ 2000e5(k)] even if a plaintiff's suit is not wholly frivolous." Id. "Fee-shifting to recompense

a defendant (as to recompense a plaintiff) is not all-or-nothing: A defendant need not

show that every claim in a complaint is frivolous to qualify for fees." Id. The core

issue is "what work . . . the defendant [may] receive fees for" when the "lawsuit

involve[s] a mix of frivolous and non-frivolous claims." Id. "[A] defendant may not

obtain compensation for work unrelated to a frivolous claim." Id. But a "defendant

may receive reasonable fees for work related exclusively to a frivolous claim." Id. As

to "work that helps defend against non-frivolous and frivolous claims alike—for

example, a deposition eliciting facts relevant to both allegations," id., the Court in Fox

held that "a defendant may recover the reasonable attorney's fees he expended solely

because of the frivolous allegations. And that is all." Id. at 2218. The district court is

prohibited from awarding the defendant "compensation for any fees that he would

have paid in the absence of the frivolous claims." Id.

As in Fox, this is a multiple-claims case involving at least one non-frivolous

claim (Starke's claim). To properly apply the Christiansburg-Fox standard, we must

first know why the district court concluded that a particular claim was frivolous,

unreasonable, or groundless. See Christansburg, 434 U.S. at 422. This is because, in

a multiple-claims case, "[s]ome claims succeed; others fail. Some charges are

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frivolous; others(even if not ultimately successful) have a reasonable basis." Fox, 131

S. Ct. at 2213–14. Second, if the district court concludes that "the plaintiff asserted

both frivolous and non-frivolous claims," then the court may award attorneys' fees

"only for costs that the defendant would not have incurred but for the frivolous

claims." Id. at 2211. 

Here, the district court did not make particularized findings of frivolousness,

unreasonableness, or groundlessness asto each individual claimupon which it granted

summary judgment on the merits to CRST. The district court did not discuss specific

claimants, choosing instead to make a universal finding that all of the EEOC's claims

were without foundation. More problematic for our review is that the district court

included in this universal finding claims for which we now find that CRST is not

entitled to attorneys' fees—(1) the purported pattern-or-practice claim and (2) the

claims dismissed for the EEOC's failure to satisfy its presuit obligations. 

While we recognize that it is an arduous task, the Christiansburg standard

requiresthe district court to make findings asto why a particular "claim wasfrivolous,

unreasonable, or groundless." 434 U.S. at 422. Here, the district court did not make

these particularized findings. Therefore, we necessarily remand to the district court to

identify those claims dismissed because they were frivolous, unreasonable, or

groundless. BecauseCRST did not prevail on Starke's non-frivolous claim, on remand,

if the court concludes that a frivolous claim or claims exists, then it must necessarily

apply the Fox standard to determine what fees, if any, CRST "expended solely because

of the frivolous allegations." Fox, 131 S. Ct. at 2218.

4. Appellate Costs

Finally, the EEOC argues that the district court erred in awarding CRST its fees

on appeal. First, it asserts that CRST should have filed its motion for appellate fees

with this court, not the district court. Second, it contends that the district court failed

to offer any explanation to support such an award.

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Eighth Circuit Rule 47C governs motions for appellate fees and provides:

(a) Motion for Fees. A motion for attorney fees, with proof of service,

must be filed with the clerk within 14 days after the entry of judgment.

The party against whom an award of fees is sought must file objections

to an allowance of fees within 7 days after service. The court may grant

on its own motion an allowance of reasonable attorney fees to a

prevailing party.

(b) Determination of Fees. On the court's own motion or at the request of

the prevailing party, a motion for attorney fees may be remanded to the

district court or administrative agency for appropriate hearing and

determination.

(c) Mandate. The clerk will prepare and certify an award of attorney fees

granted by the court for insertion in the mandate. Issuance of a mandate

will not be delayed for an award of attorney fees. If a mandate issues

before final determination of a motion for attorney fees, the clerk of the

district court, on the request of the clerk of this court, will add the award

and its amendments to the mandate.

"The usual practice for awarding fees and costs . . . is for this

Court to fix the compensation for services rendered before it, and for the

District Court to do so for services rendered before it." Little Rock Sch.

Dist. v. State of Ark., 127 F.3d 693, 696 (8th Cir. 1997) (citing Avalon

Cinema Corp. v. Thompson, 689 F.2d 137, 138 (8th Cir.1982) (en banc)).

The purpose of Rule 47C is to permit "the court most familiar with the

legal services in question" to make the fee award. Id. 

But "Rule 47C cannot and does not affect the jurisdiction of the district courts."

Id. Despite our local rule, "the district courts retain jurisdiction to decide attorneys'

fees issues that we have not ourselves undertaken to decide." Id. "[D]iscretionary and

practical considerations continue to be relevant to a district court's decision whether

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to grant a motion for attorneys' fees for services before an appellate court." Id. at 697.

Rule 47C "is not a rigid jurisdictional rule." Id. It permits us "to grant attorneys' fees

on [our] own motion" and exercise our "discretion to remand the question to the

District Court, instead of determining the award [ourselves]." Id. (citing 8th Cir. R.

47C(a)–(b)). "The Rule thus preserves multiple procedural options for the

determination of attorneys' fees." Id. Whether the district court orthis court determines

the appellate-fee award, the goal is the same: "calculation of a fair award." Id. 

Although the district court in this case had the power to grant an attorneys' fees

award, it could only do so after finding that the EEOC's "appeal was frivolous,

unreasonable[,] or without foundation."Barket, Levy, &Fine, Inc. v. St. Louis Thermal

Energy Corp., 21 F.3d 237, 243 (8th Cir. 1994). "To find the appeal unreasonable, we

must conclude that no reasonable person would have thought he could succeed on

appeal; to find the appeal unfounded, we must conclude that the appeal had no

foundation in law upon which the appeal could be brought." Wrenn v. Gould, 808 F.2d

493, 504 (6th Cir. 1987). "Although a district court's determination that the plaintiff's

original action was frivolous or meritless may be probative of the efficacy of the

appeal, such a determination is neither necessary nor sufficient to support an appellate

award." Bugg v. Int'l Union of Allied Indus. Workers of Am., Local 507 AFL-CIO, 674

F.2d 595, 600 n.10 (7th Cir. 1982). 

Here, the district court made no particularized findings as to why the EEOC's

appeal to this court was frivolous, unreasonable, or without foundation; instead, it

found only that "CRST is the prevailing party and that the Christiansburg standard is

satisfied as to all of the claims that the EEOC appealed, other than the claim on behalf

of Starke." CRST III, 2013 WL 3984478, at *19. The district court's conclusion that

the EEOC's original action was frivolous, unreasonable, or groundless is insufficient

to support an appellate award. See Bugg, 674 F.2d at 600 n.10. Furthermore, we have

already concluded that the district court must make particularized findings on remand

as to why it considers individual claims frivolous, unreasonable, or groundless.

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Therefore, we remand to the district court to consider anew whether CRST is entitled

to an award of appellate fees. The district court must explain why "no reasonable

person would have thought he could succeed on appeal" or why "the appeal had no

foundation in law." Wrenn, 808 F.2d at 504.

III. Conclusion

The present litigation has become what the Supreme Court cautioned against in

Fox—"a second major litigation" over the attorneys' fees award. 131 S. Ct. at 2216.

Nonetheless, remand is required in the present case for a reassessment of whether

CRST is entitled to fees. In summary, we conclude that CRST is not entitled to an

award of attorneys' fees for (1) claims that the district court dismissed based on the

EEOC's failure to satisfy its presuit obligations and (2) the purported pattern-orpractice claim. On remand, the district court must individually assess each of the

claims for which it granted summary judgment to CRST on the merits and explain why

it deems a particular claim to be frivolous, unreasonable, or groundless. Because

CRST did not prevail on Starke's non-frivolous claim, on remand, if the court

concludes that a frivolous claim or claims exists, then it must necessarily apply the

Fox standard to determine what fees, if any, CRST "expended solely because of the

frivolous allegations." Id. at 2218. Thereafter, the district court must consider anew

whether CRST is entitled to an award of appellate fees and explain why "no

reasonable person would have thought he could succeed on appeal" or why "the appeal

had no foundation in law." Wrenn, 808 F.2d at 504. 

Accordingly, we reverse the judgment of the district court and remand for

further proceedings consistent with this opinion. 

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