Daily Independent (Ashland, KY)

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July 8, 2014

Judge won’t dismiss custodian’s case against school

ASHLAND — A former Greenup County schools custodian will get his day in court to press his racial discrimination claim.

A federal judge declined last week to dismiss David Parker’s claim that he was subjected to racially based mistreatment and fired in retaliation for filing complaints with the U.S. Equal Opportunity Commission.

That means his case will go to trial in September, unless Parker and the school district settle out of court. Court records show both parties have said they may request a hearing to discuss settlement terms.

In his ruling, Judge Henry R. Wilhoit Jr. said there is no direct evidence of racial discrimination against Parker, who is African-American, and that whether discriminatory intent was behind his firing is up to a jury to decide. The contested issue is whether Parker was treated differently for similar conduct from other district custodians, none of whom are African-American, Wilhoit wrote.

Through his attorney, Parker says he was. “Despite rampant rule-breaking by white custodians, Parker was the only one forced to suffer repercussions,” wrote attorney Jo Ellen McComb in court filings.

In his suit, which he filed in April 2013, Parker claimed a history of workplace mistreatment because of his race, including racial slurs, both verbal and scratched into the paint of his automobile.

Parker first came to work at Greenup County High School in late 2007, and was fired in July 2008 after having been absent from work while serving a jail sentence for drunk driving. Court records show Parker discussed his impending absence with maintenance director Jack McCleese and arranged to use vacation and sick days.

Parker filed a grievance alleging racial motivation for the firing. The district rescinded the firing based on procedural shortcomings and did not admit any racial discrimination.

Parker claims racial mistreatment commenced in the 2009 school year with repeated racial slurs. He claimed his work materials were vandalized and racial slurs were scratched on his car.

It was during that year that McCleese first claimed problems with Parker’s job performance, including excessive break time, clocking out early, watching TV during his breaks and spending time in the gym watching basketball games during work hours.

Parker claims other custodians, all white, also clocked out early, some of them multiple times per week, but were not reprimanded.

Parker filed a complaint alleging racial discrimination with the EEOC in March 2010, shortly after then-superintendent Randy Hughes held a hearing to discuss charges McCleese had lodged about his work performance.

In late April, Hughes notified Parker he would not be rehired for the following school year.

The EEOC in 2011 backed up Parker’s allegations of discrimination and retaliation.

The case hinges on whether Parker was fired because of discrimination or for cause. The district claims that although other custodians engaged in conduct similar to that for which Parker lost his job, his job history of performance issues and failing to report for work justified his firing.

Wilhoit ruled that a jury will have to decide. Trial is scheduled for Sept. 29.

MIKE JAMES can be reached at mjames@dailyindependent.com or (606) 326-2652.

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