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November 27, 2013
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Jim Porter: In adequate toilets for women

“You know what bothers me,” as Andy Rooney used to say at the close of 60 Minutes? Too few toilets for women. Have the architects not figured out that on average it takes women longer to do their business than men so they need more toilets?

MARIANNE IN THE MEN’S ROOM

Case in point. Several years back while attending a concert at the Pioneer Theater in downtown Reno, at intermission everyone, or it seemed like everyone, headed for the restrooms.

There was no line at the men’s room but it was packed. As usual, the women’s room was also full but there was a huge line wrapping throughout the hallways.

So there I was at the bank of urinals, just me and the guys, when somebody else said, “there’s a chick in here, check it out.”

I turned, careful not to get anything on the floor, and there she was, my lovely wife Marianne trailed by several of her friends heading into the stalls. What can I say, she’s a Jersey Girl.

CONSTRUCTION SITE

In 2008, Lisa Davis was employed by Kiewit Pacific as a box grader operator on its $170 million project to excavate and concrete-line a 12 mile segment of the All American Canal in Imperial County.

Davis was one of two women of the 100 employees working on the day shift. She frequently complained about accessing the portable toilets, which were located miles from the work area and often were not pumped and cleaned. She asked her bosses, superintendents and safety officers including Kyle Preedy who was Kiewit’s highest ranking employee on the site to do something about it. Nothing improved.

TOILET INCIDENT

One day when Davis arrived in the morning she 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. Davis was pretty certain the stunt was aimed at her in retaliation for her complaints about the toilets.

Again, she went up the chain of command but nothing was ever done. In fact, the feces incident apparently was not even investigated. Davis filed a complaint with Cal-OSHA about the availability and unsanitary conditions of Kiewit’s portable toilets. She told Kiewit’s equal employment opportunity officer she was afraid of losing her job in retaliation but nothing was done to prevent retaliation.

The following month, Kiewit laid off most of the excavation crew members including Davis, which was a surprise because shortly before, they’d been informed they had lots more work to do on the Canal project. One week after the lay-offs, Kiewit selectively rehired crew members until it had a full-day shift. Davis was not rehired.

DISCRIMINATION SUIT

A few months later Davis sued Kiewit alleging causes of action for discrimination, harassment, retaliation and failure to prevent discrimination, harassment and retaliation in violation of California’s Fair Employment and Housing Act. She also sued for punitive damages alleging Kiewit’s conduct was malicious.

A jury awarded Davis $270,000 in damages. The trial court denied recovery of punitive damages.

PUNIES AGAINST A CORPORATION

Punitive damages in excess of actual damages generally may be awarded to a plaintiff in a civil action if the defendant has been guilty of oppression, fraud or malice.

Corporations may be held liable for punitive damages but only if the bad acts were done or ratified by an officer, director or managing agent of the corporation — employees with sufficient discretion to determine corporate policy.

In other words, there’s no automatic punitive damage liability of a corporation for a lower level employee’s oppressive or malicious acts, which makes sense.

CORPORATION’S AGENT

The Court of Appeal ruled that as Preedy managed a $170 million project with supervision of hundreds of employees, arguably he could be a managing agent of Kiewit.

Davis didn’t outright win but she could take her punitive damage case to the jury, which is a sufficient enough victory for Lisa Davis that Kiewit will undoubtedly settle. In hindsight, Kiewit should have taken her toilet complaints seriously.

RESTROOM EQUALITY

California is one of a few states that has public restroom equality laws mandating new public construction projects and major remodels of existing public buildings to include a female to male bathroom ratio of two to one.

By law, public restroom facilities must be maintained in reasonable repair and sanitary condition.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or www.portersimon.com.


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Tahoe Daily Tribune Updated Nov 27, 2013 05:34PM Published Nov 27, 2013 04:56PM Copyright 2013 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.