In many discrimination, harassment, and retaliation claims, a plaintiff can only receive punitive damages if the offending behavior involved a “managing agent.” Punitive damages means additional money is awarded to the plaintiff above and beyond tangible damages, in order to try to deter future offensive conduct and reform the defendants. Punitive damages can be substantial and, therefore, a plaintiff should try his or her best to make it clear to the court that the offenders were, in fact, managing agents.
Davis v. Kiewit Pacific Company
A recent case out of neighboring state California illustrates the importance of a managing agent determination. Lisa Davis was one of only two female machinery operators at an excavation site with 100 employees. Davis complained to several supervisory employees—two superintendents, a project manager, an EEO safety officer, and a foreman—that the toilets were too far away to be adequately accessible and that they were unsanitary. The foreman instructed her to “find a bush,” and nothing was done to address her complaints. Soon after her complaint, she found the seat of the women’s toilet smeared with human waste and found pornographic materials in the bathroom. Davis again reported the behavior to no avail, and the other crew members stopped speaking to her. Soon, Davis was laid off and the company did not recall her during the rehire period.
Though a jury found in Davis’s favor, the judge did not allow them to consider any punitive damages because the behavior was not done, ratified, or approved by a managing agent. Davis appealed the ruling regarding the punitive damages, stating that both the EEO officer and project manager were managing agents.
What is a managing agent and how is it proved?
According to the courts, a managing agent is someone who exercises “substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine company policy.” To support her claims, Davis argued the EEO officer was directly in charge of implementing company policies and training managers regarding unlawful discrimination, harassment, and retaliation.
She also pointed out that the project manager was the top manager overseeing a project that cost $170 million, with all others managers regularly reporting to him. Based on these alleged facts, the appellate court sent the case back down to trial court for a jury to hear the managing agent issue. The court reasoned that an employer-defendant should be required to describe detailed employee details in order to fight a claim that the offending employees were managing agents and to avoid punitive damages.
In any employment situation, whether you are the employee or employer, it is important to make roles clear and to carefully take notes regarding who was involved in any confrontation or other discriminatory action. If you have any questions regarding the importance of the managing agent determination, contact an experienced Oregon employment lawyer at our office today.