Road Worker Who Asked for Port-a-Potty Access Alleges Bias

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By Patrick Dorrian

A state road grader in South Dakota with post-colon-cancer-related bowel issues can take to trial his claim that he was fired for his refusal to relieve himself outdoors, a federal judge ruled ( Strand v. Charles Mix Cty. , 2017 BL 152204, D.S.D., No. 16-04037, 5/5/17 ).

The Equal Employment Opportunity Commission, which enforces federal workplace disabilities rights law, says in its Americans with Disabilities Act regulations that employer-provided reasonable accommodations for disabled workers may include “accessible break rooms, lunch rooms, training rooms, restrooms etc.”

Tracy Strand alleges he made his superiors at Charles Mix County aware of his condition and repeatedly asked that he be allowed to drive to indoor bathrooms or to have port-a-potties at his job sites. One manager told him port-a-potties weren’t necessary, and his direct supervisor told him to relieve himself behind a gravel pile, in a field or elsewhere outdoors, Strand says.

Strand says he told managers that he couldn’t do that. His direct supervisor later learned Strand left a hauling line one day and drove to use a county workshop bathroom. Strand was verbally reprimanded by the supervisor for doing so. He later was issued written reprimands for allegedly not properly calling in sick two days and for not following the supervisor’s instructions on how to grade the road.

The supervisor fired Strand June 12, 2014, when he challenged the reprimand by saying his wife had called in his absence and he had provided the county with a doctor’s note excusing him from work on the days in question.

A jury could find the county’s explanation for Strand’s discharge was a cover for disability-based bias, the U.S. District Court for the District of South Dakota said May 5.

Strand presented evidence that neither supervisor had ever written anyone up before, the county didn’t have a track record of firing road workers, the county’s leave policy was “very relaxed” and Strand wasn’t required to call in when he was out from May 2010 to the summer of 2011 while undergoing two surgeries and chemotherapy and radiation treatments for his cancer, Judge Lawrence L. Piersol said.

The cancer surgeries and treatment changed Strand’s bowel habits, and he sometimes had to go to the bathroom as often as 10 times per day. County road grader operators had to work up to 10 hours per day during the non-winter months. They generally went to the bathroom outside, but the county didn’t have a written bathroom policy and other workers sometimes drove to bathrooms, according to Strand.

Laura K. Hensley of Boyce Law Firm in Sioux Falls, S.D., who represented the county, told Bloomberg BNA May 8 that the county didn’t have any comment on the ruling because the case “is an ongoing matter.”

Strand’s counsel didn’t respond May 8 to Bloomberg BNA’s request for comment.

Kelsea K. Sutton and Stephanie E. Pochop of Johnson Pochop & Bartling Law Office in Gregory, S.D., represented Strand.

Hansen Marco of Boyce Law Firm also represented the county.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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