ERIE, Pa. (AP) — A federal judge says a black trucker’s lawsuit against a Burger King franchise in northwestern Pennsylvania should be heard by a jury and not dismissed as the restaurant’s attorneys requested.

Glenn Goodwin, from Cleveland, Ohio, filed the civil rights lawsuit against Fast Food Enterprises (hash)3, which operates the restaurant along Interstate 90 in Fairview. Goodwin contends a white worker there spit in his burger in 2008.

Defense attorneys wanted U.S. District Judge Sean McLaughlin to dismiss the lawsuit, claiming there’s no proof of the spitting or that the worker was motivated by racial prejudice.

But McLaughlin says there’s enough evidence in dispute that a jury should hear the case. State police found saliva in the burger, but didn’t charge anyone because it was thrown away without a DNA test.

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