FEHA Discrimination? Woman Told To Find A Bush To Relieve Herself.

Plaintiff, one of the woman workers on a construction project, filed a complaint for discrimination, harassment and retaliation pursuant to the Fair Employment and Housing Act (FEHA) [Government Code section 12940, et seq.]. While working on the site, she often had to travel “miles from the work area” to access portable toilets. Also, the foreman frequently did not take the toilets for pumping and cleaning, leaving them in an unsanitary condition. She asked her foreman, the day shift supervisor, the night shift supervisor, the safety officer and the project manager to resolve the toilet problem. They disregarded her repeated requests. One time, the foreman told her “to go find a bush.” On arriving at the job site on the morning of January 18, 2008, plaintiff opened the door to the women’s portable toilet and saw feces smeared all over the toilet seat and a pornographic magazine placed on the toilet paper dispenser. The magazine displayed photographs of obese women engaged in sexual acts. Plaintiff believed the feces and demeaning magazine were left in the portable toilet for her in retaliation for her complaints about the portable toilets. The incident was reported to several persons in charge, but plaintiff never learned what, if any, action was taken. Thereafter, other crew members would not speak to plaintiff. In February, plaintiff filed a complaint with Cal-OSHA, and told the project’s EEO officer she feared losing her job because of the complaint. In March, plaintiff was laid off. Defendant’s motion for summary judgment was denied, but its motion for summary adjudication of plaintiff’s punitive damages allegation was granted “because no officer, director or managing agent of [defendant] engaged in or ratified any oppressive, malicious and/or fraudulent conduct against [her].” In his declaration in support of the punitive damages motion, the project manager stated: “I am not an officer or a director of [defendant]. . .I have never drafted a corporate policy or had substantial discretionary authority over decisions that ultimately determine [defendant’s] corporate policy. The only role that I play with respect to [defendant’s] anti-harassment and EEO policies is to ensure that they are followed on the job.” The EEO officer’s declaration stated: “As a [employee of defendant], I have never had substantial discretion authority over decisions that ultimately determine defendant’s corporate policy. I do not write or recommend implementation of any human resources policies and procedures.” A jury found in favor of plaintiff on her FEHA claim and judgment was entered for $270,000. On appeal, plaintiff challenged the court’s order granting defendant’s SAI to strike her claim for punitive damages. The appellate court reversed the judgment “to the extent it denied [plaintiff’s] claim for punitive damages,” finding there were triable issues of material fact whether the project manager and/or defendant’s EEO officer were managing agents of defendant. (Davis v. Kiewit Pacific Co. (Cal. App. Fourth Dist., Div. 1; October 8, 2013) 220 Cal.App.4th 358, [162 Cal.Rptr.3d 805].