$5 Million Jury Verdict for Racial and Disability Harassment at Cemex: Sample v. Cemex Construction
Executive Summary
On March 31, 2026, a federal jury in San Francisco unanimously returned a $5 million verdict in favor of Joseph Sample Jr., a disabled Black truck driver who alleged that he endured years of racial slurs, disability-based mockery, and a hostile work environment at Cemex Construction Materials Pacific, LLC’s concrete plants in Antioch and Concord, California. The verdict consisted entirely of noneconomic damages—no economic damages or punitive damages were awarded. The case was tried before Judge William H. Orrick in the U.S. District Court for the Northern District of California.
The case reached the jury on five surviving claims after a January 2026 summary judgment order dismissed Sample’s termination-related causes of action under the after-acquired evidence doctrine and granted summary judgment to all three individual defendants. The claims that went to trial—race discrimination, disability discrimination, hostile work environment, failure to prevent discrimination, and a §1981 claim—centered on whether Cemex knew or should have known about the pervasive harassment of one of its drivers and failed to act.
| Jury Verdict — Sample v. Cemex Construction Materials Pacific, LLC | |
|---|---|
| Court | U.S. District Court, N.D. California (San Francisco) |
| Case Number | 3:23-cv-00428-WHO |
| Judge | Hon. William H. Orrick |
| Verdict Date | March 31, 2026 |
| Claims at Trial | Race discrimination (FEHA/Title VII), disability discrimination (FEHA), harassment/hostile work environment, failure to prevent, §1981 |
| Noneconomic Damages | $5,000,000 |
| Economic Damages | $0 |
| Punitive Damages | $0 |
| Total Verdict | $5,000,000 |
Case Information
Case Name: Sample v. Cemex Construction Materials Pacific, LLC
Court: U.S. District Court for the Northern District of California (San Francisco)
Case Number: 3:23-cv-00428-WHO
Judge: Hon. William H. Orrick
Matter: Employment discrimination and harassment—racial discrimination, disability discrimination, hostile work environment, and failure to prevent discrimination under FEHA, Title VII, and 42 U.S.C. §1981
Parties
Plaintiff: Joseph Sample Jr., a disabled African American former ready-mix truck driver employed at Cemex’s Antioch and Concord, California plants
Defendant: Cemex Construction Materials Pacific, LLC, a global building materials company and one of the world’s largest cement manufacturers
Key Findings
The jury found in favor of Sample on his claims of harassment, hostile work environment, and discrimination against Cemex. The $5,000,000 award consisted entirely of noneconomic damages. No economic damages (such as lost wages or benefits) were awarded, and the jury did not award punitive damages. Sample’s termination-related claims—including retaliation, wrongful termination, failure to accommodate, and failure to engage in the interactive process—had been dismissed at summary judgment before trial on after-acquired evidence grounds. The three individual defendants (Cemex’s HR director, HR business partner, and plant manager) were also dismissed at summary judgment, leaving Cemex as the sole defendant at trial.
Factual Background
Joseph Sample Jr. was born with congenital aural atresia—a condition in which the ear canal does not form—which is an outward manifestation of congenital brain malformations. The condition resulted in speech impairment, diminished hearing, an unusual gait, and intellectual disabilities. Sample spent his childhood in special education and struggled with reading and writing. He worked at his family’s soul food restaurant in San Francisco before learning about a job opening at Cemex during a church service. He applied and was hired as a ready-mix truck driver at Cemex’s Antioch plant in August 2017. After failing his initial probationary period and being terminated, he was rehired in May 2018 and passed. Sample described the position as his “dream job.”
The Alleged Harassment. According to Sample’s complaint and testimony, the harassment was both racial and disability-based, came from coworkers and supervisors alike, and persisted throughout his employment. The complaint catalogs specific statements attributed to identified individuals across a timeline spanning from 2017 to 2022. Sample’s trainer allegedly used a racial epithet directed at him in 2017. Beginning in 2019, coworker Laura Larson allegedly told him on multiple occasions to quit, using the N-word. Between 2020 and 2022, coworker James “Jim” Hazen allegedly directed some of the most extreme language at Sample—combining racial slurs with violent imagery and disability mockery. Another coworker, David Holdren, allegedly expressed a desire for Sample’s job using dehumanizing terms. The complaint also alleged that a noose drawing was placed in the break room on at least one occasion.
The disability-based harassment ran parallel. According to the complaint, coworkers and managers regularly referred to Sample as “retarded,” “the retard,” “slow,” “dummy,” and “idiot.” Other comments referenced his physical characteristics—his speech patterns, his ears, and his gait. Sample was at times the only African American ready-mix driver at the plant, and the N-word was allegedly used regularly at both the Concord and Antioch locations.
Corroborating Witnesses. Sample’s account did not rest on his testimony alone. The summary judgment record identifies at least three former Cemex employees whose testimony supported his claims. Thomas Milano, a Cemex driver and trainer for 23 years, testified that he trained Sample around 2017–2018 and subsequently became a close friend. Milano stated that he heard coworkers refer to Sample as “the retard” in break rooms at both the Antioch and Concord plants, on multiple occasions and from multiple drivers. At trial, Milano testified that “much of the conversation about Joseph was: ‘Where’s the retard?’” and that Sample “seemed to be the entertainment.”
Critically, Milano testified that he personally reported the hostile work environment to an HR representative and a plant supervisor, telling them explicitly that Sample was being harassed and should be transferred. When asked whether anyone from Cemex’s HR department ever followed up or interviewed him after his report, Milano said no. Two additional former employees—identified in the court record as Mr. Gallop (whose declaration covered conduct from 2018) and Mr. Jenkins (who testified about his six months at Cemex in 2020)—also provided testimony about the work environment. Judge Orrick denied Cemex’s motions to strike these witnesses’ declarations, finding that credibility questions were “best reserved for a jury.”
The Notice Question. The central trial issue was whether Cemex knew or should have known about the harassment and failed to take corrective action. Cemex maintained a three-step internal complaint procedure, including an “Open Door Policy,” a formal complaint process with an HR representative, and a 24/7 employee hotline. It is undisputed that Sample never used the hotline. Cemex argued that it therefore “never gave [Cemex] the opportunity to investigate, address, and prevent the alleged conduct.”
Sample pointed to three alternative channels through which Cemex had notice. First, he filed union grievances with Teamsters Local 315 in February 2022 and July 2024. Cemex’s HR director testified in deposition that the department never received these grievances. Second, Sample raised his concerns directly with Plant Manager Demetrius Hawkins in July 2022. According to Sample, Hawkins responded by telling him that none of his coworkers liked him, that two of them actively hated him, and that Hawkins did not like him either. Cemex characterized this exchange not as a harassment complaint but as a response to coworkers’ safety concerns about Sample. Third, and perhaps most damaging to Cemex’s defense, coworker Milano independently reported the harassment to HR on Sample’s behalf—and testified that his report was never investigated.
Cemex’s Defense. Cemex disputed the allegations at trial. Defense counsel Dorothy Liu argued in opening statements that Sample never used any of the company’s formal channels to report racial slurs or derogatory language. Liu contended that the workplace conflicts stemmed from safety disputes and personality clashes, not from racial or disability-based discrimination. Cemex also pointed to multiple driving incidents—a December 2019 backing incident and a March 2022 traffic accident—as evidence of legitimate performance concerns rather than retaliatory conduct.
Notably, however, Judge Orrick observed in the summary judgment order that “Cemex largely does not dispute that Mr. Sample faced these harassing comments at work.” Cemex’s defense was primarily directed at the knowledge element—it argued that it could not be liable because it did not know about the harassment. The jury’s verdict suggests it found that Cemex either knew or should have known.
Prior Terminations and Reinstatements. Sample was terminated twice before his final termination in February 2025—once in December 2019 and once in March 2022—and successfully appealed both through union grievance processes. The 2019 termination followed a backing incident in which Sample allegedly failed to report a collision with another Cemex vehicle. He was terminated, but Cemex’s own policies called for a three-day suspension without pay for a first offense of failing to report an incident—not termination. Sample was reinstated in January 2020 but served a three-week suspension. In the 2022 incident, Sample was terminated after a traffic accident. The related police report, which issued after the termination, stated that the responding officer could not determine fault. Sample was reinstated by the ACA Board of Adjustment in May 2022. These terminations and reinstatements served as evidence at trial that similarly situated employees may have been treated differently and that Cemex’s stated justifications for discipline were pretextual.
Significant Pretrial Rulings
Judge Orrick’s January 16, 2026, summary judgment order substantially shaped the claims that reached the jury. The court dismissed all claims against the three individual defendants—the HR director, HR business partner, and plant manager—finding that their conduct, while potentially offensive, did not rise to the level of severe harassment required for individual liability under FEHA. The court emphasized that decisions about whether to investigate complaints are personnel management functions that cannot form the basis of individual harassment liability, citing Fiol v. Doellstedt, 50 Cal.App.4th 1318 (1996), and Reno v. Baird, 18 Cal.4th 640 (1998). Communications from HR representatives during Sample’s medical leave—which Sample characterized as harassment—were found to constitute efforts to engage in the interactive process, not actionable harassment. The court cited Mawari v. Constellis, LLC, No. 23-CV-06029-LB (N.D. Cal. 2025), for this proposition.
The court also applied the after-acquired evidence doctrine to dismiss Sample’s termination-related claims. During discovery, Cemex learned that Sample had not disclosed his mental health conditions and congenital brain disorder on mandatory DOT certification forms required for his position as a ready-mix driver. In both his 2024 and 2025 DOT certification exams, Sample answered “No” to questions about head or brain injuries, ear or hearing problems, and anxiety, depression, or other mental health problems—despite his documented congenital brain disorder, hearing loss, and ongoing treatment for anxiety and depression. Sample’s DOT medical examiner, Dr. Daryl Berman, testified that certifications must be based on accurate information and that he was never informed of Sample’s mental health treatment. The court concluded under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), that Cemex had demonstrated a legitimate basis for termination independent of any discriminatory motive, precluding Sample’s retaliation, wrongful termination, failure to accommodate, and failure to engage in the interactive process claims.
Importantly, the court applied the continuing violation doctrine to the claims against Cemex—though not to the individual defendants—allowing the jury to consider evidence of harassment dating back to 2017, the beginning of Sample’s employment. The court found sufficient testimony from Sample, Milano, Gallop, and Jenkins to establish the “sufficiently similar in kind” and “sufficient frequency” elements under Richards v. CH2M Hill, Inc., 26 Cal.4th 798 (2001). This meant the jury heard the full arc of the alleged harassment rather than a snapshot limited to the statutory period.
Analysis
The Damages Composition. The most striking feature of this verdict for practitioners is its damages composition. The entire $5 million award consisted of noneconomic damages—emotional distress, pain, and suffering. There were no economic damages and no punitive damages. This outcome is a direct consequence of the pretrial rulings: the after-acquired evidence doctrine eliminated Sample’s termination-related claims, which would have been the vehicle for lost wages, back pay, and front pay. And while the court left the punitive damages question open for trial—noting that if the harassment was as widespread as Sample contended, he could attempt to show that a responsible Cemex official was aware and condoned it—the jury ultimately did not award them.
For plaintiff’s attorneys, this verdict is a powerful illustration of what a jury will award on emotional distress alone when the underlying harassment is severe enough. Five million dollars for noneconomic damages—without any lost-wages anchor or punitive multiplier—reflects a jury that credited Sample’s account of years of dehumanizing treatment and concluded that the emotional toll was substantial. This is a meaningful data point for case valuation, particularly in harassment cases where economic damages may be limited or complicated by intervening factors like after-acquired evidence, short tenure, or modest earnings.
The Evidentiary Picture. The strength of Sample’s hostile work environment claim at trial rested on several reinforcing pillars. First, the allegations were specific—identified speakers, identified slurs, identified timeframes. Second, the conduct was corroborated by multiple independent witnesses, including Milano’s 23 years of experience at Cemex and his testimony that he personally reported the harassment to HR. Third, Cemex largely conceded at summary judgment that the harassing comments occurred—its defense turned almost entirely on the knowledge element. And fourth, the continuing violation doctrine allowed the jury to hear evidence spanning Sample’s entire employment, presenting a pattern rather than isolated incidents.
The Milano testimony deserves particular attention. In hostile work environment cases, employers routinely defend on the ground that the plaintiff failed to use formal complaint channels. Here, Cemex had a three-step process including a 24/7 hotline, and Sample admittedly never called it. That’s ordinarily a strong defense. But Milano’s independent report to HR—using the precise phrase “hostile work environment”—and his testimony that HR never followed up, likely neutralized this argument before the jury. When a non-party coworker testifies that he reported the same conduct through the company’s own channels and got no response, the employer’s “we didn’t know” defense becomes much harder to sustain.
Lessons for Employers. For defense counsel and employers, the verdict underscores the risk of proceeding to trial on hostile work environment claims even after winning dismissal of the most economically consequential causes of action. Cemex secured summary judgment on five of ten claims, including the termination-related claims, and dismissed all individual defendants. That is a strong defensive posture on paper. But the remaining harassment and discrimination claims—rooted in allegations of pervasive racial slurs, disability mockery, and institutional indifference—were exactly the type of claims that resonate with juries. The case is a reminder that a company’s formal complaint infrastructure provides limited protection when a jury concludes the company had constructive notice through other channels and chose not to act.
The After-Acquired Evidence Cautionary Note. The after-acquired evidence ruling is itself an important lesson for plaintiffs. Sample’s failure to disclose his mental health conditions on mandatory DOT certification forms gave the defense a complete shield on the termination claims. The court was clear that regardless of Cemex’s motivations for firing Sample, the undisclosed information rendered his DOT certification invalid and provided an independent, lawful basis for termination. Practitioners should be alert to potential after-acquired evidence issues early in the case—particularly in industries with regulatory certification requirements where a plaintiff’s nondisclosure can be discovered during the course of litigation.
Individual vs. Corporate Liability. Finally, the case illustrates the distinction between individual and corporate liability for failure to investigate under FEHA. The individual HR representatives and managers were dismissed because their decisions about whether to investigate complaints constituted personnel management actions, not harassment—a well-established principle under Fiol and Baird. But Cemex itself remained liable under the separate statutory theory that an employer may be held responsible when it “knows or should have known” about co-worker harassment and “fails to take immediate and appropriate corrective action.” Cal. Gov. Code §12940. Sample demonstrates how effectively that corporate-liability theory can be deployed even after the individuals are dismissed—particularly when there is corroborating evidence that the company received reports through informal channels and did nothing.
Documents
Fourth Amended Complaint (Dkt. No. 105, filed May 12, 2025)
Order on Motions for Summary Judgment(Dkt. No. 175, filed Jan. 16, 2026)
Judgment in a Civil Case (Dkt. No. 235, filed Apr. 3, 2026)
Disclaimer: This blog post is provided for informational purposes only. The content reflects information available in public court filings and news coverage as of the date of publication. It does not constitute legal advice and should not be relied upon as such. The factual allegations described herein are drawn from the plaintiff’s complaint, deposition testimony cited in the court’s summary judgment order, and trial coverage; they have not been independently verified by Gillette Mediation beyond the court record. Cemex disputed the plaintiff’s allegations at trial.