Man files $19 million racial discrimination suit against Wal-Mart, Pepsi

By Kelly Holleran | Nov 5, 2008

MARTINSBURG - A Berkley County man has filed a federal suit against Wal-Mart and eight of its employees along with Pepsi and one of its employees for more than $19 million, alleging racial discrimination and a conspiracy of the companies' employees to fire him.

MARTINSBURG - A Berkley County man has filed a federal suit against Wal-Mart and eight of its employees along with Pepsi and one of its employees for more than $19 million, alleging racial discrimination and a conspiracy of the companies' employees to fire him.

Kirk R. Harris, a black man who had worked at Wal-Mart since March 1991, claims Richard Gibson, a market asset protection manager at Wal-Mart, began racially harassing him by probing an investigation into alleged inappropriate comments Harris made to Jennifer Jenkins, a Pepsi employee.

The investigation eventually led to Harris's termination in November 2007, according to the complaint filed Oct. 21 in U.S. Federal Court.

Harris claims Gibson and other employees held a meeting on Sept. 6, 2007, when the alleged harassment began, to conspire on a way to terminate Harris. That is the day Harris claims they invented the guise of an investigation into Harris's alleged inappropriate comments.

Their meeting was "done wrongfully, maliciously, outrageously, deliberately and purposely with the intention to inflict emotional distress upon Plaintiff, and/or were done in reckless disregard of causing the Plaintiff emotional distress, and these acts did in fact result in severe and extreme emotional distress," the suit states.

In addition to the investigation, Gibson's harassment involved disparaging racial comments and harassment, according to the complaint.

"Disparaging racial comments and harassment was sufficiently widespread, pervasive and prevalent in Defendant Wal-Mart's workplace at all times pertinent hereto to charge Defendant Wal-Mart with constructive notice of it," the suit states.

Harris claims the comments began to affect his psychological well-being and interfered with his work.

Harris gave Wal-Mart's market human resource manager notice of the racial discrimination when the investigation into his alleged inappropriate comments began, but no one investigated his complaints, the suit states.

He claims the store could have done something to end the racial discrimination by firing Gibson or by transferring Harris to another store. Instead, the store did nothing, according to the complaint.

"Defendant Wal-Mart acted with malice and with reckless indifference to Plaintiff's civil rights and emotional and physical well-being," the suit states.

In addition, Wal-Mart and Pepsi employees wrote false statements about Harris, defaming him, he claims.

The store also terminated him without a just cause, according to the suit.

The employees' alleged conspiracy caused Harris to endure severe and grievous mental and emotional suffering, fright, anguish, shock, nervousness and anxiety, according to the complaint. He claims he continues to be fearful, anxious and nervous.

Harris claims their actions also made him endure sleepless nights, take over-the-counter medication and to incur medical costs.

Harris also claims his termination has ruined his reputation.

Harris is seeking a court order requiring Wal-Mart and Gibson to stop harassing him, another order requiring Wal-Mart to take steps to protect Harris and others from harassment, and a third requiring Wal-Mart to adopt policies to protect employees from racial discrimination and to adopt procedures to investigate harassment claims.

He also seeks an order requiring Wal-Mart to reinstatement him to his position with benefits or $250,000.

He is also seeking an order prohibiting the employees from further engaging in the conspiracy.

Harris seeks a declaration that employees engaged in a civil conspiracy and they be held liable for all damages.

In addition, Harris seeks back pay, compensatory damages in excess of $7.85 million, punitive damages of more than $12 million, attorneys' fees, costs, interest and other relief the court deems appropriate.

Harris is represented by Sherman L. Lambert Sr. of Shepherdstown.

U.S. District Court case number: 3:08-CV-157

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