Three isolated incidents of harassment at construction site didn’t create actionable HWE; jury verdict tossed
Wednesday, February 19, 2020

Three isolated incidents of harassment at construction site didn’t create actionable HWE; jury verdict tossed

By Marjorie Johnson, J.D.

However, the jury reasonably found that the employee was suspended in retaliation for reporting harassment, in light of the suspicious timing and evidence that she never had any trouble with her supervisors before and a coworker who called her a b*tch received only a verbal warning.

A construction company who had mixed success at trial of a female employee’s Title VII lawsuit won its renewed bid for judgment as a matter of law on her HWE claim since the three isolated incidents of sexual harassment were not sufficiently severe or pervasive under Ninth Circuit precedent. However, a federal district court in California denied the employer’s motion and upheld the verdict insofar as the jury found that she was given a written warning and one-day suspension in retaliation for complaining about the sexual harassment incidents (Hill v. Goodfellow Top Grade, February 11, 2020, Gilliam, H.).

The employee worked as a general laborer for a subcontractor at the construction site for the Chase Center in San Francisco. In December 2013, her left lung collapsed and had to be partially removed. As a result, she could no longer perform "general labor physical work," which included shoveling and digging, and was registered with her union for "flagging jobs only."

Sexual object and "mooning" incidents. On the morning of July 13, 2015, the employee and a female coworker discovered a phallic-shaped object when they arrived at work. When she asked another subcontractor’s worker if he placed it there, he purportedly pulled his pants down and exposing his behind to her. She reported the incident to the onsite health-and-safety provider, who told her to immediately report the incident to the general contractor, which she did. The worker who exposed himself was terminated and she also submitted a statement describing the incident which was forwarded to her employer on July 19.

Threat of reassignment. On September 5, her supervisor informed her that the general contractor had decided to bring in eight non-black flaggers from a different company to replace eight black local hires. The employee set up a meeting with the general contractor, who advised her that she would remain a flagger. After the meeting, she also discussed her concerns about remaining a flagger due to her respiratory issues with her manager.

Altercation with coworker. About two weeks later, on September 18, the employee had an altercation with a male coworker who was flagging at another gate. After they simultaneously let their traffic go, almost causing a collision, they got into a heated argument which culminated in the coworker calling her a b*tch. She spoke to her supervisor, who told her to move to the "middle of the jobsite." She expressed health concerns given that the area had a lot of dust and asked why the coworker wasn’t being asked to move. The supervisor responded that she could either move to the middle or leave the jobsite.

One-day suspension. As she attempted to leave the worksite, she was called into a meeting with a manager who issued her a written warning and gave her a one-day suspension. The reason he gave was that she was insubordinate and was "harsh" with her supervisor. She subsequently sought medical care for anxiety and did not return to work. Meanwhile, the male coworker received a verbal warning for using inappropriate language.

Partial success at trial. Following a six-day trial, the jury returned a verdict in favor of the employer on her race discrimination, sex discrimination, and race harassment claims. However, it found in the employee’s favor on her HWE and retaliation claims and awarded her $18,750 in compensatory damages ($11,250 for the HWE claim and $7,500 for the retaliation claim).

Conduct not severe or pervasive. Granting the employer’s renewed motion for judgment as a matter of law on the HWE claim, the court noted that it rested on just three incidents, two of which involved different actors (one of whom was not a coworker), and one of which involved an act by an unknown person. Because there was no evidence connecting any of the events to each other, this was not a case involving a "sustained campaign" of harassment.

Therefore, at issue was whether a reasonable victim would find these three disparate incidents to be sufficiently severe or pervasive to alter the terms of her employment and create an abusive environment. Under Ninth Circuit precedent, the answer was no. While the court did not "condone" the behavior, the three isolated incidents did not rise to the requisite level of severity necessary to establish a hostile working environment.

Retaliation for complaints. However, the jury reasonably found that the employee was issued a warning and suspended in retaliation for making two sexual harassment complaints, though her discussion about the replacement of flaggers was not protected activity. She did not specifically complain about race-based discrimination but instead voiced concerns with her respiratory issues. Her supervisor also did not act with a retaliatory motive when he told her to move to the middle of jobsite since he was not aware of her sexual harassment complaints at the time.

Causal connection. The court rejected the employer’s contention that there was no evidence of a causal link between her July 13 complaint and the disciplinary action. The manager who issued the warning and suspension was aware of her complaint and the temporal gap of almost two months did not negate the inference of a retaliatory motive as a matter of law. There was also sufficient evidence of a causal link to her September 18 complaint since the same manager testified that he had the employee file a witness statement, which he sent to HR "immediately." In that statement, she reported that the coworker called her the derogatory term, and the manager issued the disciplinary notice that same day.

Pretext. The employee also refuted the manager’s contention that he issued the disciplinary action because she was insubordinate when she walked away from her supervisor and abandoned her post. She presented evidence that she never had any trouble with her supervisors before she complained about sexual harassment and they praised her for her flagging work. Moreover, while she received a one-day suspension, the coworker who called her a b*tch only received a verbal warning. Though "not particularly strong," this evidence was enough to infer pretext.

The case is No. 4:18-cv-01474-HSG.

Attorneys: J. David Hadden (Fenwick & West LLP) for Trina Hill. Allison Lauren Shrallow (Lewis Brisbois Bisgaard & Smith LLP) for Goodfellow Top Grade.

Companies: Goodfellow Top Grade

Cases: Discrimination SexDiscrimination SexualHarassment Retaliation CaliforniaNews

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