WEST VIRGINIA RECORD

CLARKSBURG -- A man who claims he was fired for taking too many days off work due to health problems is seeking to recover his employment at Lowe's.

Because of excessive absenteeism, Roy M. "Marty" Murphy was fired on March 17 from the Buckhannon Lowe's Home Centers where he worked as a sales specialist, according to the complaint filed Jan. 15 in U.S. District Court.

However, Murphy claims his absences were due to his blood pressure, diabetes, dizziness and plantar fascitis.

Murphy had been working at the store since July 2004 with no problems until Feb. 24, 2007, when he had to visit the emergency room because of high blood pressure, the suit states.

"Over the next thirteen months, Mr. Murphy missed work on approximately five days and left work early on four other occasions," the suit states. "Most, if not all, of the missed work time was due to Mr. Murphy seeking treatment for his serious health conditions."

On at least one occasion, a Lowe's employee refused to sign the doctor's note Murphy had provided the company as proof of the reason for his absence, Murphy claims.

Even though Lowe's managers were aware of Murphy's medical conditions, one of them wrote him up on July 16, 2007, for his absence, according to the complaint.

Murphy continued to have health problems and was finally referred to an ENT specialist in Morgantown in February, the suit states.

But before visiting the specialist, Murphy claims he was required to undergo testing that had to happen on Feb. 25.

"As this date was only a few days away, Mr. Murphy went to his supervisor, defendant's agent, and explained the situation," the suit states. "Because the supervisor would not allow Mr. Murphy the day off, Mr. Murphy requested to take a vacation day. The supervisor advised Mr. Murphy that he could take the vacation day if he could find another employee to cover the shift."

Murphy found someone to cover his shift and returned to work without incident, according to the complaint.

On March 10, Murphy left work early to keep his appointment with the Morgantown doctor and again returned to work without incident, he claims.

But only seven days later, Murphy was fired for excessive absenteeism, according to the complaint.

Because of his termination, Murphy lost wages, other compensation, benefits and his job, the suit states.

"When defendant decided to fire Mr. Murphy, it anticipated or feared he would use additional FMLA in the future," the suit states.

Lowe's Home Centers interfered with Murphy's exercise of his rights under the Family Medical Leave Act and retaliated against him because he exercised his rights under the act, Murphy claims.

Murphy is seeking past wages, employment benefits and other compensation he lost because of his termination, reinstatement to his employment with full seniority and benefits, plus pre-judgment interest, liquidated damages double the awarded interest, wages and lost employment benefits, attorney's fees and other relief the court deems just.

Jane E. Peak of Allan N. Karlin and Associates in Morgantown will be representing him.

U.S. District Court case number: 2:05-CV-5