Here’s a case that harkens back to the bad-old-days of the 1970s — a pioneering woman in the trades, suffering harassment and sabotage on the job.
In Davis v. Team Electric, Inc., No. 05-35877 (9th Cir. Mar. 28, 2008), plaintiff Davis (according to the summary judgment record) faced routine mistreatment in her work as an electrician: sent out on jobs without the right tools, enough information or a radio; barred from using a trailer for breaks; ignored by supervisors; forced to work a disproportionate amount of time with hazardous material; excluded from meetings; ignored by the radio dispatcher; demeaned repeatedly by her supervisors and co-workers (called “paranoid,” “this is a man’s working world,” told to “seek counseling” and to get “out of the trade”).
Matters escalated after she filed a charge of discrimination with her state civil rights agency, the Oregon Bureau of Labor and Industries (“BOLI”). She continued being assigned to repetitive piping work until she hurt all of the time (other employees got variation in their work which prevented such injuries). Finally, she was selected for layoff, being informed that the termination was due to lack of work and that its decision was “unrelated to her previous claim with BOLI.” The employee eventually filed a civil action under Title VII pro se alleging harassment, discrimination and retaliation, was denied appointment of counsel and lost on summary judgment.
The Ninth Circuit appointed pro bon counsel and reversed summary judgment. On her allegations of disparate treatment in the workplace, the panel found that the district court understated the significance of her complaints that she was excluded from work-related discussions and failed to receive responses to her radio calls… “Davis’s ban from an important area of the workplace, the trailer, is more severe than these types of exclusion, particularly because there is evidence that the restriction prevented her from discussing work matters with her supervisor. Davis’s ability to work was similarly hampered by the alleged fact that she was sometimes ignored by supervisors when she called in over the radio.”
The court also held that there was sufficient evidence that the employer’s reasons for each action was pretextual, based on comments in the workplace… “In one conversation, foreman Walsh pulled her aside to tell her that he ‘felt uncomfortable’ around her. In the same conversation, he and Davis discussed her need to drop off her child at daycare, and Walsh allegedly said ‘this is a man’s working world out here, you know.’ In another incident, Davis told foreman Loughary that her work was causing her neck pain. Loughary allegedly responded that he would assign Burkitt to be her foreman because he ‘needs a girlfriend.’ At another point, Loughary allegedly said that food for a meeting was only ‘for the guys.’ Finally, when Davis told a supervisor, Dave Davis, that she was doing most of the work entailing exposure to Monkote, he allegedly said something to the effect of ‘the guys don’t mind having a girl working with them if they don’t complain.'” The panel also credited as evidence of pretext that absence of women supervisors. While there was also evidence that the employer assisted Davis in other ways (such as accommodating child-care needs), the panel concluded that the conflicting evidence needed to be weighed by a jury.
On Davis’s retaliatory termination claim, the panel held that there was sufficient “temporal proximity” between the termination of the employee’s EEOC complaint and her termination three days later to infer retaliation. It also held that the employer failed to meet even its burden of production as to why it selected Davis for layoff. “But as the company conceded at oral argument, there is no evidence in the record as to why Davis in particular was laid off. It is not enough for an employer to simply state that it decided to lay off a group of workers. To meet its burden, the employer must explain why it selected the plaintiff in particular for the layoff. To impose a lesser standard would allow an employer with only the slightest amount of guile to get away with retaliation simply by laying off a victim of discrimination at the same time it laid off other workers for legitimate reasons. Team Electric has thus failed to articulate a legitimate reason for terminating Davis.”
Finally, the panel held that the demeaning remarks directed by the foremen and co-workers at Davis constituted a hostile work environment. Although the magistrate judge who granted plaintiff summary judgment labeled her complaints as “tainted by paranoia,” the panel demurred. Here, the conduct occurred repeatedly over the course of Davis’s employment, and we believe that a reasonable woman could have had a reaction similar to Davis’s.”