In Davis v. Kiewit Pacific Co., California Court of Appeal, Fourth District [Case No. D062388], Plaintiff Lisa Davis (“Davis”) sued former employer Kiewit Pacific Co. (“Kiewit”) for gender discrimination, hostile work environment/harassment, retaliation, and failure to prevent harassment after being forced to endure smeared feces in portable toilets. After a jury returned a verdict in favor of Davis for $270,000.00, Davis appealed the trial court’s ruling granting Kiewit’s Motion for Summary Adjudication regarding her punitive damages claim. The Court of Appeal agreed with Davis that a triable issue of fact existed as to whether the two employees to whom she complained (a Project Manager and the EEO officer) were managing agents who exercised substantial discretionary authority over decisions that ultimately determined corporate policy.
Davis claimed she was retaliated against after making several complaints to Kiewit managers concerning the unsanitary conditions and remote locations of portable toilets at the work site. Davis was one of two females that worked with a crew of 100 employees at a site excavating and realigning a 12 mile segment of a canal in the Imperial Valley. Davis complained to the project manager who was the highest ranking employee on the site. Although the project manager told her he would look into the situation, he did nothing to follow up with her concerns.
On one occasion, Davis opened the door to the portable toilet and found feces smeared all over the toilet seat and a pornographic magazine placed on the toilet paper dispenser. She later filed a complaint with Cal-OSHA regarding the company’s failure to provide sanitary conditions for the toilets and investigate the incident. While Davis was subsequently laid off with most of the excavation crew members, most crew members were selectively re-hired within three weeks of the layoff. Davis was not re-hired.
On appeal, the Court of Appeal held that Davis met her burden of establishing a triable issue of fact as to whether the project manager and EEO officer qualified as managing agents. Davis submitted evidence which established that the project manager was the top on-site manager who had responsibility to oversee and manage the $170 million project, including the 100-plus employees on site. Absent evidence that the project was an insignificant part of Kiewit’s business, the Court of Appeal held that a jury could reasonably infer that the manager exercised substantial authority and discretion regarding a broad range of issues involving the project which included compliance with policies and the hiring, supervision and laying off of its 100 employee workforce at the site. Likewise, the court found that a jury could reasonably infer that the EEO officer had authority and discretion in making, interpreting and applying the EEO policies and, importantly, that he exercised discretion not to investigate Davis’ complaints after she expressed fear of retaliation.
This case is an important reminder to employers that an employee does not have to directly create corporate policy to be a “managing agent.”
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