HUNTINGTON – A Cabell County man says he was the victim of retaliation and wrongful termination after he filed a racial discrimination complaint at work.
David Ullom filed his complaint in federal court against Rust-Oleum Corporation, which operates a facility in Lesage.
According to his complaint, Ullom was hired by Rust-Oleum in 2019 in its shipping/receiving department. He soon was promoted to blending operator.
Ullom, who is white, says Rust-Oleum did not regularly employ persons of color at the Lesage plant. When it did, he says their employment usually didn’t last longer than a week or so. From January 1, 2022, until his firing on May 19, Ullom says no persons of color worked at the plant.
In April, Ullom says he made a protected report of discrimination to Rust-Oleum alleging several white employees were using derogatory language and making racially insensitive remarks about Black persons. He says the defendant did not investigate his report, but he says other employees learned of him making the report. He also says his actions were protected activity.
He says several employees then began mocking him. On May 10, he says one employee who had used derogatory terms about Black people physically assaulted Ullom at his locker. Ulllom then asked management if his previous report was going to be investigated.
On May 19, Ullom was fired based on an allegations that he had harassed the employee who he says assaulted him.
He accuses Rust-Oleum of retaliatory discharge in violation of the West Virginia Human Rights Act as well as creating a hostile work environment.
In its answer, Rust-Oleum denies the allegations and seeks to have the case dismissed. It also says Ullom “fails to proffer facts to establish that he engaged in activity protected” by state code.
“Accepting plaintiff’s allegation as true … would necessarily include the plaintiff himself as not being a person of color,” the answer states. “Thus, plaintiff’s alleged report of broad and generic racially charged remarks not directed towards any specific individual because of their race, including any allegation that the remarks related to the plaintiff himself, does not fall within the scope of the activities protected under the West Virginia Human Rights Act.”
It also says a hostile or abusive work environment claim must be based on the ancestry of the plaintiff, according to the state Human Rights Act.
In a response to that, Ullom’s attorneys say “no legitimate argument supports the defendant’s position, which would only encourage and condone an employer’s discrimination against protected classes under the West Virginia Human Rights Act.”
They also call the case “a really simple retaliation case.”
“Our anti-retaliation law requires only that the person make the protected report in ‘good faith,’ which Mr. Ullom’s complaint clearly alleges he did,” Ullom’s response states. “Following the defendant’s logic, if an employee were to notify it that its employees were regularly engaging in racially discriminatory conduct, then the defendant could simply ignore the report by designating it as ‘too general,’ and then terminate the employee who raised the concern. …
“The defendant’s brief also implies that a person must be in a protected class (race) in order for his report to receive protection. The defendant offers absolutely no case law for its position, which, again, lacks logic and defeats the entire purpose of our anti-retaliation statute. …
“If as Mr. Ullom represents, the defendant has excluded persons of color from maintaining employment in Lesage, then that would effectively prevent application of our anti-retaliation statute. This is because none of defendant’s employees would ever have standing to make a protected report. The defendant cannot credibly suggest that it may refuse to employ persons of color at its Lesage plant, which is the logical result of defendant’s claim that Mr. Ullom did not make a protected report of discrimination. …
“The defendant’s argument relies on its absurd contention that Mr. Ullom does not receive protection under our human rights act unless he is a person of color. But Mr. Ullom’s having made a good faith, report of discrimination, itself, results in his being in a protected class. … The defendant’s position reflects a complete disregard for the mandates of our human rights act and the protections it affords all our citizens from discrimination and retaliation.”
Responding to that answer, Rust-Oleum says a “good faith” report is not enough for a claim without any actual underlying discrimination.
“Plaintiff admits he is not a person of color and; therefore, plaintiff cannot prove a prima facie case of hostile work environment,” Rust-Oleum counters. “Plaintiff’s argument, if taken to its logical conclusion, would create a situation whereby someone could make a report of discrimination without there being any actual discrimination and thus, use a self-fulfilling ‘good faith’ report to prevent their termination for any reason.”
Ullom says he has suffered lost past and future earnings and employment benefits, emotional distress, anguish, pain, suffering, humiliation, loss of enjoyment of life, costs associated with obtaining other employment, annoyance, inconvenience, embarrassment, damage to his reputation and other losses.
He seeks compensatory, punitive and general damages as well as court costs, attorneys fees, pre- and post-judgment interests and other relief.
Ullom is being represented by Hoyt Glazer and Eric B. Anderson of Glazer Saad Anderson in Huntington. Rust-Oleum is being represented by Vaughn Karl Schultz and Katlyn Stone of Dickie McCamey & Chilcote in Pittsburgh.
U.S. District Court for the Southern District of West Virginia case number 3:22-cv-00255
