Davis v. Team Elec. Co.

• Decision Date: 28 March 2008
• Docket Number: No. 05-35877.,05-35877.
• Citation: 520 F.3d 1080
• Parties: Christie DAVIS, Plaintiff-Appellant, v. TEAM ELECTRIC CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 1080

Christie DAVIS, Plaintiff-Appellant, v. TEAM ELECTRIC CO., Defendant-Appellee.

No. 05-35877.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2007.

Filed March 28, 2008.

Paul B. Eaglin, Eaglin Law Office, Fairbanks, AK, for the appellant.

Peter R. Chamberlain and Pamela J. Stendahl, Bodyfelt Mount Stroup & Chamberlain LLP, Portland, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-01-01752-OMP/JMS.

Before ALFRED T. GOODWIN, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

In this sexual discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., electrician Christie Davis contends that her former employer, Team Electric Company, treated her worse than the male employees at a work site that had no other women until she contacted the state civil rights agency; retaliated against her for filing a discrimination complaint with the agency; and failed to prevent her supervisors from creating and maintaining a hostile work environment. The district court granted Team Electric's motion for summary judgment on all claims. We reverse.

I. Background

In early May 2000, Team Electric hired Christie Davis as a journeyman electrician. On October 19, 2000, Team Electric assigned her to a project at the Clackamas County High School. At the time, she was apparently the only female electrician on the site.

Lyle Loughary was Davis's project foreman for the first few weeks of the assignment. On November 7, Davis told Loughary that she was experiencing neck pain from doing ceiling work for two weeks. Loughary allegedly replied that he would allow her to work in the electrical room with Bill Burkitt, and stated that he would transfer her because Burkitt "needs a girlfriend." Davis also alleges that Loughary repeatedly referred to his wife as "astrobitch."

On November 15, Davis wrote in her journal that "[Loughary] ... laid me out on tasks leaving info out and short on materials and sometimes tools," and that the foreman told her "repeatedly NOT to go in the trailer," where meetings and breaks were held. In her deposition, Davis said:

I wasn't included at first on meetings they would have. Who knows what they were about because I wasn't included. I complained about it and they started including me. But they still had their little personal meetings which I didn't really care, other than I felt left out.... They would ... get donuts for the guys.... [I heard someone say] "Well, [Loughary] said the donuts are for the guys," in reprimand to Bill Walsh offering me one....

Kevin Behrens, the site's project superintendent, asserted in an affidavit that if the work discussed in a field meeting did not involve a certain employee, "that employee[was] not expected or asked to attend the meeting." Similarly, project foreman Bill Walsh stated that "[i]f Davis was not present at a meeting, it was because the meeting had nothing to do with her area of work," and that "[a]t no time was Davis excluded from a meeting simply to exclude her."

Davis did not initially receive a radio, making it difficult to communicate with co-workers because, she alleges, she was "always put in another area from everybody." Team Electric responds that there were a limited number of radios, assigned as needed, and that she received a radio after complaining. Davis also alleges that she would sometimes fail to receive any radio response from supervisors, and that co-workers talked to her over the radio in a demeaning manner. Walsh and Behrens claim that they were not aware of demeaning talk.

Davis repeatedly expressed frustration over being assigned a disproportionate number of jobs that entailed working with Monokote, a hazardous material sprayed over metal and wood. She complained to Walsh about the physical effects of her exposure to Monokote, and he responded that she would lose her job for being paranoid. When she commented to her supervisor, Dave Davis, that it was unfair that she was assigned all the Monokote jobs, he allegedly replied, "[w]e don't mind if females are working as long as they don't complain." ¹

Team Electric asserts that Davis never had to do the jobs that were even more dangerous than the Monokote assignments, that all employees had to work in hazardous areas, and that most of the time that she worked in such areas she did so with a male co-worker. It also alleges that on one occasion, when Davis asked not to work with Monokote in a new assignment, she was assigned to a different wing of the building.

In mid-January 2001, Davis told Walsh that she wanted to pursue a long-term project, such as installing the fire alarm. Walsh replied that another employee might be the "natural choice" for the alarm because he was already pulling cable. Two days later, Loughary asked Davis if she would like a "change of pace" after doing ceiling work, and offered to move her into the kitchen area.

At the end of January, Loughary allegedly reprimanded Davis several times for trying to enter the trailer, telling her not to bother Behrens with work issues because it could "make [him] mad." The next day, Walsh allegedly pulled her aside and told her that he "felt uncomfortable" around her. Davis allegedly replied that she felt uncomfortable around people that made her feel "not welcome (like I shouldn't be there)," but that she was "getting over it." Walsh then told her about potential jobs on other sites, and she replied that she was interested but would have to know where they were — Davis was limited in how far she could travel because she had to take her child to daycare in the mornings.² In the same conversation, Walsh allegedly said "this is a man's working world out here, you know."

In mid-March, Davis worked in areas that did not yet have Monokote installed. On March 15, Dave Davis told her that she had "missed a meeting with all of the guys." On March 22, she went into the trailer and noticed that "Burkitt was getting job info from [Behrens]," even though Loughary had told her not to go into the trailer and talk to Behrens.

On March 23, Davis told Walsh that she felt isolated and that it seemed she was assigned to a disproportionate number of hazardous jobs, particularly assignments working with Monokote. On April 18, she told Walsh that she was fatigued from "being on the lifts all the time" and that "it was hard working alone all the time."

On April 19, Behrens told Davis that if she didn't like the work she should "get out of the trade." The next day, she left a message on Behrens's voicemail telling him that she could not make it to work because she "needed to seek counseling regarding the ... incident." She wrote in her journal that she "can't talk to him because every time I try ... he blows up at me."

On April 23, Davis mailed an Employment Discrimination Questionnaire, which the Civil Rights Division of the Oregon Bureau of Labor and Industries ("BOLI") received on April 24. On the same day she mailed the questionnaire, Davis found a sticker in her car that said "Lady Killer," and was summoned to a meeting with Walsh and Behrens. Walsh asked what her thinking was about her work responsibilities, and Davis repeated that she did not enjoy working with Monokote, and gave them an extensive list of her recent assignments involving Monokote. She also told them that it was "taxing both physically and mentally," to work on the lifts for extended periods of time without variation.

On April 27, Davis found her car with the lights on. She turned them off, but when she returned at lunchtime, her blinker was on and her battery was drained. Davis filed a police report. On the same day, Walsh assigned her to check for violations in a wing of the building. On May 4, Walsh told Davis that a female electrician from another work site could work with her, and that another female electrician would start working at the site on Monday and could also work in her area. Around this time Davis was given a more desirable work assignment.

On May 9, Davis asked Walsh whether it would be possible for her to receive a cloth vest, which was a higher quality than the net vests she had been wearing. She noted in her log that male co-workers had the cloth vests, and that she had "cheaper gloves" than the other workers. Walsh allegedly denied her request.

On May 16, Davis submitted a "Complaint of Unlawful Practice" ("first BOLI complaint"), which BOLI received on May 21. The complaint alleged "unlawful employment discrimination" by Team Electric on the basis of her gender. In particular, she claimed that Team Electric discriminated against her by (1) assigning her "dirty and hazardous jobs to prevent others from having to do them," (2) giving her an "unbalanced workload" and promising male workers jobs that she "had to ask to be given," (3) excluding her from meetings in which other electricians were included, and (4) refusing to communicate with her over the radio, or communicating with a "tone of voice" that "implied that it was demeaning to have to communicate" with her. Davis also alleged that her supervisors did not respond adequately to her complaints, and created a work environment that was "hostile to women," and in which she was held "to a different standard" due to her gender. BOLI dismissed the complaint on July 6, 2001, citing a lack of evidence. On September 4, 2001, the Equal Employment Opportunity Commission ("EEOC") dismissed the complaint and advised Davis of her right to appeal to the district court.

Davis recorded a number of incidents of sexually-charged conversation. In one instance, for example, a co-worker said, "Lips and assholes, that's all women are good for." In another, co-workers attempted to give Davis a "sexual call name."

On May 24, Walsh proposed that Davis transfer to another site, but she declined due...