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A federal judge in Salt Lake City has determined three black employees at Magna-based Holmes & Holmes Industrial Inc. were subjected to an abusive workplace but said a jury must determine whether the men were willing participants in helping create a hostile work environment.

In a memorandum and order handed down last week, U.S. District Court Dale Kimball also turned down a request to dismiss the lawsuit that is being brought by the U.S. Equal Employment Opportunity Commission against Holmes & Holmes. The motion was based on the company's contention that two of the employees provided false testimony in the case.

The judge's order was the result of pre-trail legal maneuvers by the EEOC and the company related to the government lawsuit filed in September 2010 against the excavation, concrete and pipe welding services company. The EEOC alleges that Antonio and Joby Bratcher and another African-American employee were subject to unwelcome racial harassment.

The EEOC contends that racially charged comments were made frequently by managers and co-workers at one of the company's construction sites, and that Holmes and Holmes supervisors did not respond to the men's complaints about the alleged workplace discrimination. The men no longer work for the company.

In a statement after Kimball's ruling, the EEOC noted the judge observed that "the conduct in this case constituted a steady barrage of opprobrious racial comments" toward the Bratchers and fellow worker James Buie. During the course of their employment with Holmes, according to the judge's order, the site superintendent referred to the Bratchers and Buie with a racial epithet or a variation of that word almost every time he spoke to them. The superintendent frequently told racial "jokes," such as, "Why don't [racial epithet] like trees? Because they are used to hanging from them," the order said.

It also noted that Holmes employees also told racial "jokes."

Judge Kimball wrote that the conduct was "constitutionally offensive in any setting" and concluded that this "is a rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."

Yet Kimball declined in his order to grant the EEOC's request that he rule the plaintiffs were "subjectively" or personally offended by the discriminatory conduct.

Ruth Shapiro, a Salt Lake City attorney representing Holmes & Holmes, said it will be up to a jury to decide whether the job site where the allegations of racial discrimination occurred was in fact a hostile work environment for the men.

"The court declined to find the work environment 'subjectively hostile,' largely as a result of the plaintiff's own contributory behavior, namely their own pervasive use of racial slurs and terms," Shapiro said in an e-mail that offered her views on the judge's ruling. "In light of plaintiff's own racially based actions, among other defenses, Holmes & Holmes is confident that a jury will find in its favor regarding the allegation of hostile work environment."

She also noted that although the company was disappointed the judge rejected its motion to dismiss the case based upon "objective evidence supporting the fact that plaintiffs perjured themselves," that evidence will be considered by the jury, as well.

Kimball, though, in turning down the company's request that the lawsuit be dismissed, pointed out the company's allegations of perjury were based on two company employees disputing the Bratchers' testimony.

"The court routinely sees these types of factual disputes between parties and they are to be weighted by a jury," the judge wrote. "They do not form the basis for an allegation of perjury."

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