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Appeals court upholds discrimination verdict against Concord company

A federal appeals court has upheld a jury award to an African-American truck driver who claimed he was fired by his Concord employer after raising complaints that he had been racially harassed.

Last year, a federal jury in Winston-Salem awarded Contonious “Tony” Gill more than $330,000 in damages, back pay, attorney fees and other costs in his lawsuit against A.C. Widenhouse Inc., an asphalt trucking firm in Concord. Robert Floyd, another African-American worker with the company, received $50,000.

Both men said they had been targeted with racist jokes and slurs ranging from “n-----” to “porch monkey.” Both also said they had been shown a rope noose, and Gill alleged that a white employee had asked him early in his employment whether he would like to hang from “the family tree.”

Gill, who joined the company as a truck driver in May 2007, said he repeatedly reported the incidents but that his superiors never acted. He was fired in 2008, his lawsuit claimed, for raising the complaints in the first place.

The company appealed the jury’s decision, and the case was argued before a three-judge panel of the 4th Circuit Court of Appeals in May. This week, the judges unanimously upheld the verdict.

“We are thrilled for Tony Gill, and we hope the case will send a strong message to employers that they must have zero tolerance for racial harassment and that they must take such complaints seriously,” said Gill’s attorney, Jenny Sharpe of Charlotte.

Bryan Adams of Charlotte, one of the lead attorneys for Widenhouse, did not return a call seeking comment Friday.

In his appeal, Adams said the company deserved a new trial because of errors by U.S. District Judge Thomas Schroeder. In particular, Adams argued that Schroeder mistakenly told jurors they could award damages if Gill’s complaints of workplace discrimination were a “motivating factor” in his firing. Such employee complaints are protected under federal law.

Shortly after the trial ended, the U.S. Supreme Court ruled in a similar case that retaliatory claims such as Gill’s had to show that the protected behavior caused the firing and was not simply a factor.

Federal law allowed that tougher standard of proof of retaliation to be used during the Widenhouse appeal, and the company argued that Schroeder’s flawed instructions undermined any chance for a fair verdict.

The appeals court disagreed. Even though it said Schroeder had erred in his jury instruction, the three judges said the company failed to prove that the error affected the outcome of the case.

The jurors, according to the appeals court’s 15-page decision, ultimately decided that Gill was fired “because of” his discrimination complaints. That language, the judges said, meets the Supreme Court’s new standard on proof.

The appellate panel also ruled that the company failed to show that Schroeder’s instructions were prejudicial, or that the judge was at fault when he blocked the jury from hearing an Equal Employment Opportunity Commission complaint Gill had filed against a previous employer.

Gordon: 704-358-5095
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