CHARLESTON – Regardless of his skin color, Pepsi claims it would have fired the man who has filed suit against the company alleging racism.

Robin Armstrong, a bi-racial Kanawha County man, filed a lawsuit in Kanawha Circuit Court against Bottling Group, doing business as Pepsi Bottling Group.

Armstrong claims he began working for Pepsi on May 19, 2003, as a relief customer representative.

Throughout his employment, Armstrong says he repeatedly was subjected to hostile sexual remarks from fellow employees.

"During the course of his employment, the Plaintiff was subjected to remarks from white co-workers pertaining to the size of penises of black males," the suit states. "Additionally, white co-workers harassed the Plaintiff by inquiring whether he had sexual thoughts about white female employees or co-workers."

Armstrong made complaints to his bosses about the remarks, but says he was terminated because of his objections.

However, Pepsi contends it would have fired Armstrong regardless of his race or his complaints.

In addition, Pepsi claims Armstrong called his co-workers "racists and rednecks" when airing his grievances.

Because of his termination, Armstrong contends he has suffered emotional distress.

Armstrong is asking the court to enter a permanent injunction against Pepsi, ordering them to stop their illegal behavior; is asking the court to reinstate his employment; is seeking back pay, front pay and fringe benefits; and is seeking a judgment for his diminished earning capacity. In addition, he is seeking compensatory and punitive damages, all economic losses, pre- and post-judgment interest and other relief the court deems just.

In its answer to Armstrong's complaint, Pepsi says Armstrong's lawsuit should be dismissed in part because the statute of limitations for the suit has expired. It is also seeking costs, fees and other relief the court deems just.

Because a diversity of citizenship exists and because Armstrong is seeking more than $75,000 worth of damages, Pepsi removed the case to federal court on Aug. 24.

Armstrong will be represented by Lia DiTrapano Fairless of DiTrapano Law Firm in Charleston.

Bryan R. Cokeley and J.A. Curia III of Steptoe and Johnson in Charleston will be representing Pepsi.

U.S. District Court case number: 2:09-964

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