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Appeals court sides with construction co. in discrimination lawsuit

By: Erika Strebel, [email protected]//March 11, 2015//

Appeals court sides with construction co. in discrimination lawsuit

By: Erika Strebel, [email protected]//March 11, 2015//

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Construction contractor J.P. Cullen & Sons has prevailed in a racial-discrimination lawsuit after an employee of a subcontractor was unable to prove that Cullen was his de facto employer.

The case stems from a suit filed by Walter Love of Milwaukee, who alleged he was improperly fired after getting into a fistfight during a renovation of the Milwaukee City Hall, where he was working for a subcontractor of J.P. Cullen of Janesville. The 7th Circuit Court of Appeals on Monday affirmed a district court’s previous decision against Love after finding that “no reasonable jury could conclude” that J.P. Cullen was Love’s employer — even in an indirect way.

“My heart just dropped to my feet,” Love said Wednesday. “It has been a battle since 2008. I am devastated and hurt. I was hoping and praying it would at least make it to trial.”

A phone call to Love’s lawyer, Larry Cote, was not immediately returned. Love said he is not sure how to proceed. The next step would be to appeal to the U.S. Supreme Court, but he said that is unlikely. Love said he has spent $20,000 on his case and is now broke.

Love was hired by Union Contracting Inc., Chicago, to work on the Milwaukee City Hall project as a foreman in June 2007. J.P. Cullen served as the general contractor for the renovation from September 2005 to December 2008, according to court documents. One of Cullen’s subcontractors on the project was Eugene Matthews Inc. of Broadview, Ill., and Union Contracting was a subsidiary of Eugene Matthews.

In February 2008, Cullen permanently dismissed Love from the construction site after he got into a fight with another worker there.

Love filed suit in the U.S. District Court for the Eastern District of Wisconsin, claiming that Cullen had violated Title VII of the Civil Rights Act of 1964 by discriminating and retaliating against him because of his race.

Both of the men in the fight were black.

According to the allegations, white workers in a lunch area at the job site would use racial slurs when referring to black colleagues. Love also alleged that minority workers were repeatedly passed over for “Partner of the Month” awards given out by Cullen, and that a white worker had hung a noose at the site.

Sara Gehrig, attorney for J.P. Cullen, said the appellate court came to the correct conclusion but said she and her client were disappointed that the judges did not rule on the claims of racial discrimination. She said those claims were frivolous.

“We’re very grateful for the closure,” Gehrig said. “We’re frustrated that the allegations were out there and made, and that we were unable to directly refute them.”

When Love’s case was before a federal district court, the judge had recognized that indirect, as well as direct, employers can be held liable for racial discrimination. Still, the court held that Love had failed to show that he had an employee-employer relationship with Cullen.

The appeals court used a similar rationale for affirming the lower court’s decision.

Love had argued that J.P. Cullen controlled his hiring because the company required its subcontractors to use union workers. The appeals court disagreed, contending J.P. Cullen was not involved in Love’s hiring because Union Contracting recruited its own employees. The appeals court also determined that while Cullen had the final say on the presence of any worker on the City Hall project, the company was not responsible for Love’s ultimate loss of his job.

Even though J.P. Cullen dismissed Love from the City Hall job site, it was Union Contracting officials who told him they had no other projects and would thus have to let him go.

According to the appeals court, Union Contracting’s lack of other work had nothing to do with Cullen’s actions. Also, Cullen did not set Love’s hours, directly supervise his work, or provide him with training, benefits, sick leave or vacation time.

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