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Friday, Nov 08 2013 04:00 PM

ROBIN PAGGI: Take employee complaints seriously

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    Californian contributing columnist Robin Paggi.

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BY ROBIN PAGGI Contributing columnist

It was the best of times (for two employees) and the worst of times (for their employers) in this tale of two potties that serves as a reminder to all employers to take employee complaints seriously and refrain from retaliating against employees for making them.

Our tale begins in 2005 when Lisa Drozdowski began working as a flagger for Danella Construction Corp. of Pennsylvania, a subsidiary of Danella Companies. According to an article on legacy.plansponsor.com, the construction company refused to provide portable toilets for its employees. While the male employees would urinate in holes or behind equipment, Drozdowski, the only female on the crew, was forced to walk a quarter mile to her car and drive for five to 10 minutes to find a bathroom. Several times she ended up urinating on herself because she could not make it in time, so she began wearing adult diapers to work.

Despite having to don Depends, Drozdowski applied for a laborer position with the company and was told by management that the company did not hire female laborers. Drozdowski complained about the discriminatory treatment and the lack of a porta potty, which resulted in a drastic cut in her hours and then no hours at all, even though the company continued to hire people for flagger positions.

The Equal Employment Opportunity Commission sued the company in 2008 for sex discrimination, saying, "Even in traditionally male-dominated fields like the construction industry, employers must give qualified female applicants and employees equal opportunities to compete for and receive higher-paying positions."

In November 2009, the company, also charged with retaliating against Drozdowski for complaining about the discriminatory treatment, agreed to pay her $150,000 and pay $50,000 to four other female employees who also claimed they were discriminated against because of their sex. The company also agreed to provide portable potties for its employees.

Fast forward to October 2013, when a woman with a similar story was awarded $270,000 because of being subjected to, let's just say, inappropriate bathroom humor.

According to court documents on law.justia.com, Lisa Davis worked as a heavy machine operator for Kiewit Pacific Co. on a $170 million project in Imperial County, Calif. This company provided portable toilets; however, they were often located miles from the work area and were unsanitary (they were not pumped or cleaned). When Davis complained about the situation to her foreman, day shift superintendent, night shift superintendent, safety officer and project manager, the only response she received was to be told by her foreman "to go find a bush."

Actually, she did receive another response. When she entered the women's portable toilet on Jan. 18, 2008, she found the seat smeared with feces and a pornographic magazine placed on the toilet paper dispenser. Davis suspected that she was being retaliated against for her complaints and said so to her foreman and day shift superintendent. The only response she received this time was for her crew members to stop speaking to her.

In March 2008, Davis was laid off along with most of the rest of her crew. A week later, the company began to selectively rehire some of the crew but, you guessed it, Davis was not rehired. She sued for discrimination, harassment and retaliation, among other claims. She could end up getting more than the $270,000 jury award because she is now going after punitive damages, which the trial court denied but the appellate court is allowing.

This story is obviously more than just about portable toilets and ends with several lessons, hopefully, learned by these employers that serve as a cautionary tale for all others: take employee complaints seriously, fix situations that need to be remedied, don't punish the complainants (and don't allow others to do so either), and don't decide who gets what job because of their sex. Or else, you too could experience the worst of times.

-- Robin Paggi is the training coordinator at Worklogic HR Legal Solutions. Reach her at rpaggi@worklogiclegal.com. These are her opinions, not necessarily those of The Californian.

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