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Davis v. Kiewit Pacific Co.

California Court of Appeals, Fourth District, First Division

September 18, 2013

LISA DAVIS, Plaintiff and Appellant,
v.
KIEWIT PACIFIC CO., Defendant and Respondent.

Filed Date10/8/13

APPEAL from a judgment of the Superior Court of Imperial County No. ECU04765, Donal B. Donnelly, Judge.

Dumbeck & Dumbeck, Jason D. Dumbeck and Curtis M. King for Plaintiff and Appellant.

Seyfarth Shaw, Ann Kotlarski and Brian M. Stolzenbach for Defendant and Respondent.

McDONALD, J.

The trial court entered a judgment for plaintiff Lisa Davis after a jury found defendant Kiewit Pacific Co. (Kiewit) liable for gender discrimination, hostile work environment harassment, retaliation, and failure to prevent harassment, gender discrimination, or retaliation. However, before trial, the trial court granted Kiewit's motion for summary adjudication on Davis's claim for punitive damages, concluding there were no triable issues of material fact whether a managing agent of Kiewit had engaged in or ratified any oppressive, malicious and/or fraudulent conduct against her. Davis appeals, contending the trial court erred by granting Kiewit's motion for summary adjudication on her punitive damages claim because there is a triable issue of material fact regarding whether a managing agent of Kiewit engaged in or ratified the wrongful conduct against her. As we discuss below, we conclude a triable issue of material fact exists for determination by a jury.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007 and 2008, Davis was employed by Kiewit as a box grader operator on its $170 million contract to excavate a 12-mile segment of the All American Canal (AAC) in Imperial County and line it with concrete (Project). At times, Kiewit had over 100 employees working on the Project during day and night shifts. Davis was one of two women who worked on the day shift excavation crew.

While working on the Project, Davis often had difficulty accessing portable toilets. They were often located miles from the work area. Also, her foreman frequently did not take the portable toilets away for pumping and cleaning, leaving them in an unsanitary condition. Davis asked her foreman, the day shift superintendent, the night shift superintendent, and the safety officer to resolve the portable toilet problem. They disregarded her repeated requests. On one occasion, her foreman told her "to go find a bush." Davis ultimately spoke to Kyle Preedy, Kiewit's project manager for the Project, about the insufficient number of portable toilets and their location away from the job site and lack of cleanliness. Preedy was Kiewit's highest ranking employee on the site. Although Preedy told her he would look into the issues, neither he nor anyone else followed up with her regarding her concerns.

On arriving at the job site on the morning of January 18, 2008, Davis 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 believed the feces and demeaning magazine were left in the portable toilet for her in retaliation for her complaints about the portable toilets. She immediately informed Steve Northington, her foreman, of the incident, and later that day spoke with Dave Hunt, the day shift superintendent, regarding the matter. Her coworkers stated that the night shift workers had done it. Hunt reported the incident and gave the magazine to Bob Faulk, his superior, but never learned what action was taken thereafter. Preedy apparently learned of the incident that day. However, no one apparently investigated to determine who was responsible for the incident. Thereafter, Davis's crew members would not speak to her.

On February 21, 2008, Davis filed a complaint with Cal-OSHA regarding the availability and unsanitary conditions of Kiewit's portable toilets and Kiewit's not providing breaks. On February 27, she complained to John Lochner, Kiewit's equal employment opportunity (EEO) officer, regarding Kiewit's not providing access to sanitary portable toilets or investigating the January 18, 2008, incident. Davis told Lochner she was afraid of losing her job or other retaliation because of her complaint. However, Lochner did not take any action to prevent retaliation against Davis.

On March 6, 2008, Kiewit laid off most of the excavation crew members, including Davis. The lay-off was a surprise to the crew members because shortly before that date Preedy had assured them they would not be laid off for a long time as there were six miles of the AAC yet to be excavated. One week after the lay-off, Kiewit began to selectively rehire excavation crew members. By the third week after the lay-off, Kiewit had rehired a full day shift; however, Davis was not rehired. Using full day and night crews, Kiewit thereafter completed excavation of the AAC by April 2010.

In October 2008, Davis filed the instant complaint against Kiewit, alleging causes of action for discrimination, harassment, retaliation, and failure to prevent discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and for not paying wages in violation of the Labor Code. She alleged that Kiewit's conduct was malicious and oppressive and committed and/or ratified by its managing agents to support her request for an award of punitive damages.

Kiewit filed a motion for summary judgment or, in the alternative, summary adjudication of causes of action. It moved for summary adjudication on Davis's request for punitive damages, arguing she could not recover punitive damages as a matter of law "because no officer, director or managing agent of [Kiewit] engaged in or ratified any oppressive, malicious, and/or fraudulent conduct against [her]." Kiewit asserted that none of the employees about whom Davis complained (e.g., Preedy and Lochner) were officers, directors or managing agents of Kiewit. In support of its motion, Kiewit submitted a revised separate statement of undisputed material facts and declarations of Preedy, Lochner and other employees asserting they did not determine Kiewit's corporate policy or have any substantial discretionary authority over decisions that determine its corporate policy.

Davis opposed Kiewit's motion for summary judgment or, in the alternative, summary adjudication. She argued Preedy and Lochner were managing agents of Kiewit. In support of her opposition, she submitted declarations and other evidence supporting her assertion that Preedy and Lochner were managing agents of Kiewit. She also submitted a separate statement of disputed and additional material facts.

On December 27, 2010, following a hearing on Kiewit's motion, the trial court issued a written order denying Kiewit's motion for summary judgment and motions for summary adjudication of six issues, but granting its motion for summary adjudication on Davis's request for punitive damages. The court concluded "[Davis] cannot recover punitive damages as a matter of law because no officer, director or managing agent of Kiewit engaged in or ratified any oppressive, malicious and/or fraudulent conduct against [her]. (Revised Separate Statement of Undisputed Facts, UF Nos. 123-124.)"

Following trial on Davis's action, the jury returned special verdicts finding Kiewit liable on each of her four FEHA causes of action and determined her economic and noneconomic damages for each cause of action. On November 19, 2012, the trial court entered an amended judgment for Davis on the special verdicts and awarded her $160, 000 for past lost earnings and $110, 000 for noneconomic losses, for a total award of $270, 000 in damages. Davis timely filed a notice of appeal challenging the trial court's order granting Kiewit's motion for summary adjudication on her request for punitive damages.

DISCUSSION

I

Summary Adjudication Standard of ...


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