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Case of the Month December 2022
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Case of the Month December 2022

Federal Jury Declines to Award Plaintiff Damages in Suit for Racial Harassment

Phillips v. Mega Concrete Construction LLC

Case Type:
Labor & Employment - Race Discrimination Hostile Environment/Interference With Contract in Violation of 42 U.S.C. Sec. 1981
Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Negligent Training, Supervision or Retention

Specific Liability:
An African American male who was a self-employed carpenter alleged that a foreman for another company performing work at the construction site verbally assaulted him with racial epithets

General Injury:
Emotional Distress

Jurisdiction:
State: Wisconsin
United States District Court, W.D. Wisconsin.

Related Court Documents:
Plaintiff's amended complaint: 2021 WL 8267983
Defendants' brief in support of motion for summary judgment: 2021 WL 8267984
Plainitff's trial brief: 2022 WL 1286010
Special verdict form 2022 WL 1285990

Case Name:
Phillips v. Mega Concrete Construction L.L.C.; Gallagher

Docket/File Number:
3:20CV00658


Result Amount:
$0


Result Date:
April 08, 2022

Judge:
James D. Peterson

Attorneys:
Plaintiff: Patrick O'Connor, Hurley Burish S.C., Madison, WI
Plaintiff: Paul Schinner, Cross Law Firm S.C., Milwaukee, WI
Defendant: Lori Lubinsky, Axley Brynelson L.L.P., Madison, WI
Defendant: Danielle Baudhuin Tierney, Axley Brynelson L.L.P., Milwaukee, WI

Result Type:
Jury Trial

Experts:
Plaintiff: Not Reported
Defendant: Not Reported

Breakdown of Award:
Defense Verdict

Summary of Facts:
Plaintiff Michael Phillips, an African American male who was a self-employed carpenter, asserted while working at a construction site, defendant Robert Gallagher, a foreman for another company performing work at the job site, defendant Mega Concrete Construction L.L.C., verbally assaulted him with racial epithets. The plaintiff said he felt physically threatened by Gallagher during the verbal assault.
The plaintiff said after he reported Gallagher's language and conduct to Mega Concrete's manager the same day, the manager arrived at the jobsite and she and the plaintiff walked to where Gallagher was working so Gallagher could apologize to the plaintiff. However, Gallagher allegedly refused to apologize and again used racial slurs against the plaintiff.
The plaintiff contended the manager did nothing regarding Gallagher's use of racial slurs in the workplace and did not even temporarily remove Gallagher from his work in order to address the racially hostile work environment.
The plaintiff asserted claims for racial harassment in violation of 42 U.S.C.A. Section 1981, intentional infliction of emotional distress against Gallagher and negligent infliction of emotional distress and negligent supervision against Mega Concrete. As damages, the plaintiff sought lost compensation, damages for his emotional pain and suffering, mental anguish and humiliation, as well as punitive damages, together with attorney fees and costs.
The defendants denied liability and contended the verbal exchange between Gallagher and the plaintiff was brief and did not constitute severe harassment. The defendants also argued there was no basis for employer liability against Mega Concrete.

United States District Court, W.D. Wisconsin.

Westlaw Citation:
2022 WL 4119830


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