Pucino v. Verizon Communications, No. 07-7176 (2d Cir. Aug. 13, 2010); Szekeres v. CSX Transportation, Inc., No. 09-3835 (6th Cir. Aug. 16, 2010)

| Aug 15, 2010 | Daily Developments in EEO Law |

Start the week with two cases concerning bathrooms.

Pucino v. Verizon Communications, No. 07-7176 (2d Cir. Aug. 13, 2010):  Although sex harassment cases often involve sexual attraction and unwanted sexual attention, this case involves another common scenario (though less often reported in case law): women in the trades being treated worse than men, in an apparent effort to drive them away.  Here the plaintiff alleges that the company routinely sent women to work on phone liens in dangerous neighborhoods (often alone), denied them overtime, denied them access to needed tools and vehicles, and reprimanded women more readily than men.

One specifically gendered issue did arise, involving bathrooms: “although there was no company policy against using public bathrooms and male co-workers openly used them while out in the field, Hinspeter and Moore reprimanded Pucino for being ‘off the job’ on occasions when she used public facilities. Pucino preferred public bathrooms because the bathrooms where she worked were unisex, generally dirty, and also lacked doors or other security to prevent men from walking in. Dauer also attested to the bad conditions of Verizon’s unisex bathrooms. Dauer stated that, while working at Pierce’s, she became aware of the ‘off the job’ reprimands Pucino had received for using public bathrooms. Fearing similar discipline, Dauer began to document her own travel time to bathrooms in Verizon offices several miles from where she worked, which were segregated by sex.”

The panel, reversing summary judgment, concluded that there was a genuine issue of material fact about whether such behavior was “severe or pervasive.” It also found a triable issue of fact about whether the hostile work environment was “because of sex.” In addition to the failure of the employer to offer an explanation for the disparate treatment, the foremen frequently used the word “bitch” around and about women in the workplace. While the panel would not hold blanketly “that use of the word ‘bitch’ always and in every context has that [gendered] meaning or that its usage need not be viewed in context,” on this record “we also have no doubt that such a trier could find that [foreman] Hinspeter’s ‘constant’ use of the word over several years in the context of the present record was sex-based and reflected hostility to women”

Czekeres v. CSX Transportation, Inc., No. 09-3835 (6th Cir. Aug. 16, 2010): It is this simple – under the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701, the employer may be held negligent per se for violations of regulatory duties. In this case, the railroad was accused of maintaining a filthy, chemically-contaminated washroom. Because the plaintiff found the regular washroom in unusable condition, he crossed the tracks to relieve himself. “Szekeres slipped while ascending the embankment and twisted his knee, allegedly injuring it. He claims that he slipped as a result of the mud that had accumulated on his boot from the muddy walkway behind the switch.”

The plaintiff, the panel held (in reversing summary judgment), identified just such a violation under the LIA: “49 C.F.R. § 229.137 requires that locomotives be equipped with a sanitation compartment/toilet facility that is adequately equipped. 49 C.F.R. § 229.139(a) requires that the sanitation compartment of all lead locomotives in use be sanitary.” The violation, in turn, proximately caused plaintiff’s injury: “He contends that had CSX provided a sanitary toilet facility, he would have used it, thus obviating the need to urinate outside, which led him to slip on the incline and injure his knee.” The panel notes that the plaintiff presented at least a genuine issue of material fact about whether the un slightly conditions and fumes were enough to constitute a violation.

The panel also found a triable claim under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., for the failure of the railroad to maintain the grounds in a safe condition. The panel held that there was a genuine issue of fact as to three alleged deficiencies.  “whether CSX knew that: 1) there was a long-standing mud condition in the vicinity of the Valley City switch; 2) mud is recognized as a slipping hazard in the railroad industry; [and] 3) walkway stone should be used to cover dirt in the ground areas around switches. . . .”

It has long struck me that slip-and-falls appear to get to trial in federal court far more readily than employment discrimination cases, perhaps because – over time – what plaintiffs have been required to present to survive summary judgment under Title VII has been piled up high, building layer upon layer of insulation around the employer’s adverse action to avoid a false-positive, i.e., finding liability for an innocuous action. Cases such as this one present a nice and handy contrast to the unnecessary complications posed under Title VII.

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