A racial discrimination lawsuit brought by six workers on a North Dakota job site is set for trial in late 2019.
The suit was filed against California-based KS Industries, an engineering and construction company whose subsidiary KSI, LLC, was doing work near Tioga.
In court documents, the workers, who are African American, alleged there was graffiti that included racial slurs and depictions of black persons hanging by a noose. The workers also allege they were called racial slurs by their white supervisors and coworkers. When complaints were made, no remedial action was taken.
The lawsuit also alleges the workers, all of whom relocated to North Dakota for their jobs, were denied raises and promotions, were forced to perform dangerous work in freezing temperatures and were not permitted to take mandatory breaks in the “warming trucks.”
The case, should it proceed to trial, will be heard Oct. 22, 2019, in U.S. District Court in California’s Eastern District.
In its response to the allegations, the company said any damages resulted from the acts of the plaintiffs, including violation of company policies and procedures. The company said the workers’ firings were not related to their race and were for legitimate business reasons that were nondiscriminatory and non-retaliatory.
KSI argued the same decision-maker doctrine, in that the same person who fired the workers was the one to hire them, the rationale being that a person who dislikes a group of people would not have hired them in the first place.
The company also claimed the clean hands doctrine, arguing that the plaintiffs had acted unethically or in bad faith.
In court filings, KSI said the workers did not follow the company’s internal grievance procedures.
“The employee unreasonably failed to use the preventative and corrective measures provided, and reasonable use of the employer’s procedures would have prevented some of the alleged damages,” the company wrote.
Because the actions were taken by KSI's subsidiary, the company is also claiming it had no knowledge of the discrimination and cited "after acquired evidence" only learned after an employee was dismissed.
Finally, the company is claiming delaying prosecution has made the plaintiffs ineligible to recover any damages, citing statutes of limitations since the incidents happened more than one year prior.
But the lawsuit only came after remedial negotiations, overseen by the Equal Employment Opportunity Commission, fell apart, said the plaintiffs’ lawyer James Vagnini, of Garden City, N.Y.,-based Valli Kane Vagnini LLP.
Complaints were first filed by the six workers with the EEOC in 2014. In May 2017, the EEOC issued a determination finding that the black employees were subjected to severe and pervasive harassment and were retaliated against.