Uploaded: 2022JUL01 10:01 Filed By:Bar# 75488 TSTRELKA Reference: EF-105267

E-Filed: 2022JUL01 LYNCHBURG CC GSHEEHAN at 2022JUL05 09:38 CL22000552-00

VIRGINIA:
LYNCHBURG CITY CIRCUIT COURT

ADRIAN O’NEIL MITCHELL

Plaintiff,

v. Case No:

SOUTHERN AIR, INC. JURY TRIAL DEMANDED

Serve:
Paul R. Denham,
President
2655 Lakeside Dr.
Lynchburg, VA 24502

Defendant.

COMPLAINT

The above-named Plaintiff, Adrian O’Neil Mitchell, by counsel, states as his Complaint

against Defendant Southern Air, Inc. (“Defendant” or “SAI”), the following:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over this matter as it arises from statutory authority, to-wit, the

Virginia Human Rights Act, as amended by, the Virginia Values Act (“VHRA”), as codified under

Va. Code § 2.2-3901 et seq. and Va. Code § 40.1-27.3, Virginia’s whistle blower retaliation statute.

2. The acts and/or omissions of the SAI, which the following causes of action arise, occurred

within Lynchburg City, Virginia, and the Lynchburg metropolitan area.

3. Mr. Mitchell is a resident of Campbell County, Virginia, and, until his unlawful termination

on November 4, 2021, was employed on a full-time basis by SAI.

4. SAI is a corporation organized under the laws of the Commonwealth of Virginia with a

principal place of business in Lynchburg City, Virginia.

 5. On December 9, 2021, Mr. Mitchell filed a Charge of Discrimination simultaneously with

the Virginia Attorney General’s Office of Civil Rights and the Equal Employment Opportunity

Commission, pursuant to those agencies’ work-share agreement. The work-share agreement states,

inter alia, that a Charge of Discrimination filed with one agency is deemed to be filed with both

agencies. On or about April 14, 2022, Mr. Mitchell received a Notice of Right to Sue. See

EXHIBIT A. Mr. Mitchell commences this action within 90 days of the receipt of the Notice of

Right to Sue and within one (1) year of the accrual of his claim under Va. Code. § 40.1-27.3.

II. THE FACTS

6. Mr. Mitchell was hired by SAI on or about August 1, 2021, as plumbing apprentice.

7. Mr. Mitchell performed his job satisfactorily.

8. While employed by SAI, Mr. Mitchell’s direct supervisors were Steve Cundiff and Kevin

Blankenship, who reported to SAI President Paul Denham.

9. Upon information and belief, Supervisors Cundiff and Blankenship and President Denham

are Caucasian.

10. On or about September 7, 2021, Site Supervisor Troy (last name unknown), who, upon

information and belief, is Caucasian. Site Supervisor Troy made several racially offensive jokes

to, and in the presence of, Mr. Mitchell, who identifies as African American/Black.

11. Site Supervisor Troy made offensive jokes about “blacks” being “porch monkeys,” “yard

apes,” and used the racial epithet “nigger” (hereinafter referred to as the “n-word”). Site Supervisor

Troy further called Mr. Mitchell “boy,” in a racially derogatory manner, and a “coon” and

remarked that if it was “coon hunting season, ‘boy,’ you better be running.”

12. Mr. Mitchell immediately reported this deplorable racial discrimination to Supervisor

Cundiff.

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 13. Mr. Mitchell thereafter worked under Site Supervisor Tim (last name unknown), who, upon

information and belief, is Caucasian.

14. On or about September 30, 2021, Site Supervisor Tim criticized how Mr. Mitchell had

fitted a pipe at a worksite. Site Supervisor Tim called Mr. Mitchell an “imbecile,” implied that Mr.

Mitchell was an “imbecile” because he is Black, and eventually threatened to “hunt [Mr. Mitchell]

down and shoot him in the head” in a lynching-style murder. To make his point, Site Supervisor

Tim attempted to beat Mr. Mitchell with a piece of pipe.

15. Mr. Mitchell immediately called Supervisor Cundiff to report Site Supervisor Tim’s

behavior. Instead of punishing Site Supervisor Tim, Supervisor Cundiff suspended Mr. Mitchell

without pay for the rest of the day.

16. Mr. Mitchell remained suspended without pay until approximately October 4, 2021.

17. On October 4, 2021, Supervisor Cundiff placed Mr. Mitchell back on Site Supervisor Tim’s

jobsite, despite Site Supervisor Tim threatening to kill Mr. Mitchell and creating a racially hostile

work environment.

18. However, Mr. Mitchell complied with Supervisor Cundiff’s directive and returned to Site

Supervisor Tim’s jobsite at a local school. Site Supervisor Tim remarked along the lines of “oh,

that ‘n-word’ is back, y’all.”

19. Site Supervisor Tim also brandished a weapon at Mr. Mitchell. Site Supervisor Tim then

stated, “if I get fired because of you, I know where you live, and it won’t end well for you,” or

similar words.

20. Site Supervisor Tim’s racially motivated beratement of Mr. Mitchell was so loud and

ostentatious that one or more teachers at the school witnessed the confrontation and reminded them

that “students were coming.”

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 21. Mr. Mitchell again complained to Supervisor Cundiff. Supervisor Cundiff again suspended

Mr. Mitchell without pay, claiming that “there was no more work for [him].”

22. A few days later, Mr. Mitchell was assigned to Site Supervisor DJ (last name unknown -

Caucasian)’s jobsite. Site Supervisor DJ’s immediate supervisor was Supervisor Blankenship. Site

Supervisor DJ’s jobsite was approximately 45 minutes away, despite SAI maintaining jobsites in

closer physical proximity to Mr. Mitchell’s previous jobsite under Site Supervisor Tim.

23. When Mr. Mitchell was reassigned to Site Supervisor DJ’s jobsite, he inquired with

Supervisors Cundiff and Blankenship whether Site Supervisor Tim would face any discipline. Both

men demurred.

24. In or about mid-October of 2021, Site Supervisor DJ suffered an injury. Mr. Mitchell was

suspended without pay pending placement with another site supervisor.

25. On or about November 1, 2021, Site Supervisor DJ was supposed to return to work

imminently. Mr. Mitchell requested from Human Resources employee Sierra (last name

unknown), who, upon information and belief is Caucasian, to be placed on Site Supervisor DJ’s

jobsite upon his return.

26. Human Resources employee Sierra instead informed Mr. Mitchell that he would be placed

with HVAC Tech Bo, a close friend of Site Supervisors Troy and Tim. Upon information and

belief, the placing of Mr. Mitchell with HVAC Tech Bo, as opposed to Site Supervisor DJ, was an

attempt to force Mr. Mitchell to resign his employment.

27. Shortly after Mr. Mitchell’s placement, HVAC Tech Bo, along with Site Supervisors Troy

and Tim made a joke about Mr. Mitchell being a “big, dumb ‘n-word’” or similar words.

28. Mr. Mitchell immediately complained to Human Resources employee Sierra and

Supervisor Cundiff about the racially hostile work environment and how it was impossible for him

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to work under individuals who threatened him with being lynched and displayed acts of racially

motivated violence in the workplace.

29. Human Resources employee Sierra stated, “this is insubordination. If you do not return to

work on Monday [, November 6, 2021,] you’ll be considered ‘no call/no show’ and be terminated.”

Upon information and belief, this ultimatum was presented to Mr. Mitchell in an effort to force his

resignation and/or provide justification to Mr. Mitchell’s potential unlawful termination.

30. On November 6, 2021, Mr. Mitchell did not return to work, due to the intolerable working

conditions, therefore, was constructively discharged and/or discharged by SAI.

31. Due to the actions of Supervisors Cundiff and Blankenship, Site Supervisors Troy and Tim,

and other employees acting within the scope of their employment with SAI, SAI is liable for the

following violations of law.

III. CAUSES OF ACTION

COUNT I: TERMINATING MR. MITCHELL’S EMPLOYMENT IN VIOLATION OF

VA CODE § 40.1-27.3

32. Mr. Mitchell incorporates by reference herein the preceding paragraphs of this Complaint.

33. Virginia Code § 40.1-27.3(A)(1) states that “[a]n employer shall not discharge, discipline,

threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding

an employee’s compensation, terms, conditions, location, or privileges of employment, because

the employee: Or a person acting on behalf of the employee in good faith reports a violation of

any federal or state law or regulation to a supervisor or to any governmental body or law-

enforcement official[.]”

34. Virginia Code § 40.1-27.3(A)(5) states that “[a]n employer shall not discharge, discipline,

threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding

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an employee’s compensation, terms, conditions, location, or privileges of employment, because

the employee: Provides information to or testifies before any governmental body or law-

enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by

the employer of federal or state law or regulation.”

35. Mr. Mitchell reported several violations of the VHRA and Title VII of the Civil Rights Act

of 1964 to his supervisors, to-wit, Mr. Cundiff and Mr. Blankenship, over Site Supervisors Troy,

Tim, and HVAC Tech Bo’s racial epithets, including “porch monkey” and “nigger,” and Site

Supervisor Tim threatening to lynch or otherwise kill Mr. Mitchell.

36. Mr. Mitchell also reported violations of the Virginia Occupational Safety and Health Act

to Mr. Cundiff, to-wit, Site Supervisor Tim imminently threatening Mr. Mitchell with physical

harm with a pipe.

37. Finally, Mr. Mitchell reported violations of Va. Code Ann. § 18.2-308.1, to-wit, Site

Supervisor Tim possessing a weapon on school grounds that Mr. Mitchell, in good faith, believed

was a weapon prohibited from school grounds.

38. Mr. Mitchell was suspended without pay at various points, and eventually deemed

terminated from employment, due to his protected acts and in violation of Virginia Code § 40.1-

27.3.

39. As a direct and proximate result of the termination of Mr. Mitchell’s employment, Mr.

Mitchell has suffered and will continue to suffer pecuniary loss, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.

40. Pursuant to Virginia Code § 40.1-27.3, Mr. Mitchell is entitled to “(i) an injunction to

restrain continued violation of this section, (ii) the reinstatement of the employee to the same

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position held before the retaliatory action or to an equivalent position, and (iii) compensation for

lost wages, benefits, and other remuneration, together with interest thereon, as well as reasonable

attorney fees and costs.”

COUNT II: CLAIM FOR DISCRIMINATION

IN VIOLATION OF THE VIRGINIA HUMAN RIGHTS ACT.

41. Mr. Mitchell incorporates by reference herein the preceding paragraphs of this Complaint.

42. Mr. Mitchell identifies his race as African American/Black.

43. At all times relevant, SAI regarded Mr. Mitchell’s performance as at least meeting

legitimate expectations.

44. Various Caucasian employees of SAI called Mr. Mitchell known racial epithets like

“nigger,” “coon,” “boy,” and “porch monkey.”

45. Various Caucasian employees of SAI threatened Mr. Mitchell with physical bodily harm

at the worksite and to lynch, or otherwise kill, Mr. Mitchell.

46. Mr. Mitchell reported this conduct to Supervisors Cundiff and Blankenship and Human

Resources employee Sierra.

47. Rather than meting out workplace discipline to Site Supervisors Troy, Tim, and Bo, Mr.

Mitchell was suspended without pay.

48. Defendant attempted to force Mr. Mitchell to work under individuals who created a racially

hostile work environment, despite a site supervisor, whom Mr. Mitchell had not complained about,

being available for Mr. Mitchell to work under.

49. Defendant left Mr. Mitchell with no other choice but to be constructively discharged. No

reasonable person would have returned to work under a site supervisor who called them “nigger”

or threatened physical violence or death.

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 50. Any reasons given by SAI for Mr. Mitchell’s suspensions without pay and constructive

discharge are pretextual in nature.

51. As a direct and proximate result of Defendant’s actions, Mr. Mitchell has suffered and will

continue to suffer pecuniary loss, compensatory damages, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss.

52. The above-described acts by Defendant and employees of Defendant constitute

discrimination in violation of the Virginia Human Rights Act, Va. Code Ann. §§ 2.2-3901 et seq.

COUNT III: CLAIM FOR RETALIATION

IN VIOLATION OF THE VIRGINIA HUMAN RIGHTS ACT.

53. Mr. Mitchell incorporates by reference herein the preceding paragraphs of this Complaint.

54. Mr. Mitchell identifies his race as African American/Black.

55. At all times relevant, SAI regarded Mr. Mitchell’s performance as at least meeting

legitimate expectations.

56. Various Caucasian employees of SAI called Mr. Mitchell known racial epithets like

“nigger,” “coon,” “boy,” and “porch monkey.”

57. Various Caucasian employees of SAI threatened Mr. Mitchell with physical bodily harm

at the worksite and to lynch, or otherwise kill, Mr. Mitchell.

58. Mr. Mitchell reported this conduct to Supervisors Cundiff and Blankenship and Human

Resources employee Sierra.

59. Rather than meting out workplace discipline to Site Supervisors Troy, Tim, and Bo, Mr.

Mitchell was suspended without pay.

60. Defendant attempted to force Mr. Mitchell to work under individuals who created a racially

hostile work environment, despite a site supervisor being available for Mr. Mitchell and one from

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whom Mr. Mitchell had not experienced racial discrimination, retaliation, or a hostile work

environment.

61. Defendant left Mr. Mitchell with no other choice but to be constructively discharged. No

reasonable person would have returned to work under a site supervisor who called them “nigger”

or threatened physical violence or death.

62. Any reasons given by SAI for Mr. Mitchell’s retaliatory suspensions without pay and

constructive discharge are pretextual in nature.

63. As a direct and proximate result of Defendant’s actions, Mr. Mitchell has suffered and will

continue to suffer pecuniary loss, compensatory damages, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss.

64. The above-described acts by Defendant and employees of Defendant constitute retaliation

for reporting violations of the Virginia Human Rights Act, Va. Code Ann. § 2.2-3905(B)(7).

COUNT IV: CLAIM FOR HOSTILE WORK ENVIRONMENT

IN VIOLATION OF THE VIRGINIA HUMAN RIGHTS ACT.

65. Mr. Mitchell incorporates by reference herein the preceding paragraphs of this Complaint.

66. Mr. Mitchell identifies his race as African American/Black.

67. At all times relevant, SAI regarded Mr. Mitchell’s performance as at least meeting

legitimate expectations.

68. Various Caucasian employees of SAI called Mr. Mitchell known racial epithets like

“nigger,” “coon,” “boy,” and “porch monkey.”

69. Various Caucasian employees of SAI threatened Mr. Mitchell with physical bodily harm

at the worksite and to lynch, or otherwise kill, Mr. Mitchell.

70. Mr. Mitchell reported this conduct to Supervisors Cundiff and Blankenship and Human

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Resources employee Sierra.

71. Rather than meting out workplace discipline to Site Supervisors Troy, Tim, and Bo, Mr.

Mitchell was suspended without pay.

72. Defendant attempted to force Mr. Mitchell to work under individuals who created a racially

hostile work environment, despite a site supervisor being available for Mr. Mitchell and one from

whom Mr. Mitchell had not experienced racial discrimination, retaliation, or a hostile work

environment.

73. Defendant left Mr. Mitchell with no other choice but to be constructively discharged. No

reasonable person would have returned to work under a site supervisor who called them “nigger”

or threatened physical violence or death.

74. Any reasons given by SAI for Mr. Mitchell’s suspensions without pay and constructive

discharge are pretextual in nature.

75. As a direct and proximate result of Defendant’s actions, Mr. Mitchell has suffered and will

continue to suffer pecuniary loss, compensatory damages, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss.

76. The above-described acts by Defendant and employees of Defendant constitute a racially

hostile work environment in violation of the Virginia Human Rights Act, Va. Code Ann. §§ 2.2-

3901 et seq.

WHEREFORE, Plaintiff Adrian O’Neil Mitchell prays for judgment against Defendant

Southern Air, Inc. in the amount of FIVE MILLION DOLLARS ($5,000,000.00) and for lost

wages and benefits, equitable relief to include front pay, other remuneration to include

compensatory damages, together with prejudgment interest from the date of Defendant SAI’s

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suspensions without pay and/or constructive discharge of Mr. Mitchell, and for costs and attorneys’

fees, and for such other and further relief as may be just and equitable.

Trial by jury is demanded on all issues on which Mr. Mitchell is entitled to a trial by jury,

including any question concerning whether Mr. Mitchell’s claims must be submitted to arbitration.

Respectfully Submitted,

By: _________________________________
Thomas E. Strelka, Esq. (VSB# 75488)
Brittany M. Haddox, Esq. (VSB # 86416)
L. Leigh R. Strelka, Esq. (VSB # 73355)
N. Winston West, IV, Esq. (VSB # 92598)
Monica L. Mroz, Esq. (VSB #65766)
STRELKA EMPLOYMENT LAW
Warehouse Row
119 Norfolk Avenue, S.W., Suite 330
Roanoke, VA 24011
Tel: 540-283-0802
brittany@strelkalaw.com
thomas@strelkalaw.com
leigh@strelkalaw.com
winston@strelkalaw.com
monica@strelkalaw.com

Counsel for Plaintiff

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