Court says man brought racial taunt on himself

By Justin Anderson | Jun 24, 2009


CHARLESTON – The West Virginia Supreme Court has overturned a ruling by the state Human Rights Commission, which awarded a man money because a co-worker uttered a racial epithet at him.

In a unanimous opinion filed Monday, the court said Victor T. Peoples, who is black, incited a heated exchange between him and a white co-worker on a job site in 2004.

The court ruled that in order for Peoples to prove he was subjected to a hostile work environment through racial discrimination, he had to show that the discriminatory conduct was unwelcome.

The court also said that Peoples failed to show that his employers, Sue J. Erps and William G. Erps, doing business as Improvements Unlimited, fired him in retaliation for reporting the comment made by the co-worker.

In 2007, the commission awarded Peoples a total of $32,898 in damages, including lost wages, interest and incidental damages for humiliation.

Peoples was hired on at Improvements Unlimited on April 13, 2004, according to the opinion, written by Chief Justice Brent Benjamin.

On June 16, 2004, Peoples was part of a crew building a wall at a business college in Virginia.

During the work, Peoples taunted another worker, Wayne Bragg, by calling him "white trash" and a "honky." Bragg later testified that this made him angry, as did when Peoples made fun of his speech impediment.

In building the wall, Bragg was digging holes and Peoples was pounding rebar into the holes with a sledgehammer, the opinion said. At one point, Peoples asked Bragg to dig the holes deeper to make it easier to pound in the rebar.

According to the opinion, Bragg told Peoples: "You say another word I'll cut your f---ing head off with this shovel, n----r."

Both men approached their supervisor, David Yontz, about the situation. Yontz ordered the men back to work in separate locations.
But Peoples was not satisfied and demanded to know what Yontz was going to do about Bragg's usage of the epithet.

Yontz told Peoples that the situation was over and to get back to work. When Peoples continued his demands, Yontz told him to get back to work or be fired.

Peoples told Yontz to send him home, Yontz again told him to get back to work. Peoples refused, handed Yontz the sledgehammer and told his supervisor "to do what he had to do." Yontz then fired Peoples.

Peoples called William G. Erps and told him about what happened. Erps told him that Bragg shouldn't have used that word and that he would handle the situation. The opinion says Erps called Bragg and told him not to use the word again, but didn't discipline Bragg.

Peoples declined to personally speak to Erps about the situation. Erps made two attempts to meet with Peoples, but no more. The last attempt was when Peoples came to the business to pick up his final paycheck.

Peoples filed his complaint with the Human Rights Commission on July 2, 2004. Subsequently, Peoples complained that William Erps and his employees were following and chasing him.

He said another black employee of the business approached him and offered him money to drop the complaint. Peoples also said that workers for another company owned by Erps' brother were intimidating him.

In overturning the commission ruling as to the hostile environment claim, the court said Peoples did not prove that Bragg's comment was unwelcome.

"While we do not condone Mr. Bragg's comments, we cannot ignore the significant role which Mr. Peoples had in creating the very situation of which he later complained," the opinion said, "something Mr. Peoples appears to ignore and something which the commission appears to have minimized."

As to the retaliatory discharge finding, the court said that Peoples was fired because he refused to return to work, not because he complained about Bragg's comment.

While the commission found that Peoples refusal to go back to work was because the supervisor would not take action against Bragg, therefore the firing was in retaliation for complaining about the comment, the court said the facts don't support the finding.

The court pointed to William Erps' telling Peoples that he wasn't fired -– even after Yontz fired him at the job site -- and urged him to return to work, but he didn't.

Supreme Court case number: 34262

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