CHARLESTON – A man is suing Penhall Company after he claims he was discriminate against based on his race.

Dustin Rife, an employee and an unknown safety director were also named as defendants in the suit.

Erik S. Johnson was hired out of the Construction and General Laborers Local Union 543 as a result of being on a call out work list and prior to reporting to work, he was required to take a drug test, which is passed, according to a complaint filed Jan. 16 in Kanawha Circuit Court.

Johnson claims he reported to work at the yard office beneath Virginia Street Bridge on July 31, 2013. When he did so, he was the only African-American working for the defendant at that location.

Almost immediately, Johnson was subjected to racially discriminatory remarks, according to the suit.

Johnson claims employees for Penhall constantly informed him that "'blacks' were not good workers and were incapable of performing the labor required because of being African-American."

On Aug. 15, 2013, Johnson was being subjected to extensive racial comments by Rife, and Johnson went to the foreman, Mike Gibson, and informed him that something needed to be done to stop Rife from continuing the racial remarks, according to the suit.

Johnson claims later that day, he could tell that Rife was angry and while Johnson was sweeping away debris from the area, Rife took the jackhammer he was working with and struck Johnson in the foot.

The project manager and engineer, known as Rick and Tony, informed Johnson that the injury to his foot was not that bad and ordered him to return to work, according to the suit. After he finished work for the day, he went to the hospital, where he was diagnosed with a contusion, which was later determined to be a fracture, and was restricted from work for three days.

Johnson claims when he called Penhall and informed them of the injury and that he could not come to work for three days, but was informed he had violated company policy and that he needed to report to his place of employment that day.

The plaintiff had a friend drive him to the office, where he was taken to MedExpress by Tony, who informed him that he would be drug tested, according to the suit. Johnson was also informed that Rife would not be drug tested.

Johnson claims he reported to him that he was on prescribed pain medication associated with the fracture in his foot.

After evaluating Johnson, MedExpress released him to return to work immediately, but the following day, when Johnson called to discuss the fracture in his foot, MedExpress employees requested he return to their office for additional evaluation, and he was placed in a walking cast and ordered to be off work for three days.

Johnson claims when he notified Tony of the medical leave, he was ordered to stay at MedExpress and Tony and the safety director arrived at MedExpress and ordered him to be drug tested.

After Johnson was drug tested, he was informed on Aug. 20, 2013, that he had failed the drug test for testing positive for marijuana and his employment was being terminated, according to the suit.

Johnson claims he informed the defendants he could not have tested positive for marijuana because he did not use marijuana and that he wanted to contest the drug test, which he believed to be false. He contacted human resources and was informed he could submit another urinalysis test.

While at the hospital for his follow-up appointment from his initial emergency room visit, he paid $55 out of pocket to have the test performed and the results showed that Johnson was negative for all drugs except the prescription pain medication he was prescribed for his foot, according to the suit.

Johnson claims so that there could be no doubt regarding the fact that he had not taken any illegal drugs, he went to Omega Laboratories and had a drug test performed using a hair sample, which is more reliable than a urine test and that test also was negative except for the prescribed pain medication.

Despite passing both of these drug tests, Johnson was not reinstated to his position at Penhall Company, according to the suit.

Johnson claims he was discriminated against because of his race.

Johnson is seeking compensatory and punitive damages. He is being represented by J. Michael Ranson and Cynthia M. Ranson of Ranson Law Offices; and G. Patrick Jacobs of the Law Office of G. Patrick Jacobs.

The case is assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 15-C-78

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