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Judge Tosses Building Site Harrassment Suit

RICHMOND, Va. (CN) - A construction worker who claimed he was ridiculed by coworkers for being sexually harassed by another male laborer cannot pursue claims against his employer, a federal judge ruled.

Matthew Allen was hired to work as a laborer on Aug. 23, 2013, by Barnes Excavating which was working as a subcontractor on a construction site to defendant D.A. Foster

In a lawsuit filed in the Alexandria Federal Court, Allen says that while working on the job site he was approached by an unidentified male co-worker who began making sexual advances toward him.

"Among other things, the man asked Allen to draw him nude. Later that day, the man drew Allen nude," the complaint says.

Allen says he reported the incident to Mark Barnes, but his supervisor took no action. He says he then reported the incident to D.A. Foster's on-site foreman, who ejected the man from the premises.

"However, Allen's co-workers heard about the incident and began harassing him by, among other things, insinuating that he is a homosexual, exposing themselves to him, singing a song about him being raped, and trying to urinate on him," the complaint says. "Despite his complaints about this behavior, Allen's supervisors allegedly took no action, Mark Barnes allegedly engaged in the harassment, and Allen's coworkers continued to harass Allen."

On September 22, 2013, Allen says, his employment by Barnes Excavating was terminated, "ostensibly due to lack of work."

He then sued both D.A. Foster and Barnes Excavating for discrimination, fostering a hostile work environment, and wrongful and retaliatory termination.

But U.S. District Judge Claude Hilton dismissed the case last week, holding that Allen's claims against D.A. Foster could not stand, and that those against Barnes Excavating should be brought to the appropriate state court.

In tossing Allen's claims against D.A. Foster, Hilton said no direct employment relationship existed between the parties, and that "[a]lthough the performance of Allen's work was generally at D.A. Foster worksites, he arrived at the sites commuting with Barnes excavation workers and worked under the supervision of a Barnes Excavating foreman."

Because All was not an employee of D.A. Foster, the construction company was entitled to summary judgment on all counts, Hilton wrote.

As for Allen's claims against Barnes Excavating, Hilton said a federal court only has subject matter jurisdiction over case when a federal question is raised or there is a diversity of citizenship among the parties. In this case, he said, neither applied.

"Having ruled against Plaintiff on the only federal claims, the Court finds that the best course of action is for Allen to pursue his remaining state claims against Barnes Excavating in the appropriate state court," Hilton wrote.

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