CHARLESTON - A Logan County man has filed a suit against a local tree cutting business, claiming he was treated poorly and fired because he is black.

J. Andrew Shelton filed a suit June 23 in Kanawha Circuit Court against Asplundh Tree Expert Co. Asplundh is a business that cuts, trims and removes trees and brush from commercial and residential properties.

According to the suit, Shelton began working for Asplundh's North Charleston facility on Oct. 24, 2005. He was under the supervision of Freddie Collins, who is also named as a defendant in the suit. At the time, Shelton was the only black man working at the facility.

Shelton claims he had difficulties with the company from the time he was hired, including difficulties getting his time care, proper training and was frequently not paid in a timely manner. According to the suit, Shelton was unaware of any white co-workers who were experiencing similar issues.

Shelton claims he was often the subject of racially based statements and taunts. He was told of other black workers who had quit after short work periods, numerous jokes and innuendos.

"At one point, a friendly co-worker advised Mr. Shelton to 'watch out' because of his race," the suit says.

On July 5, 2006, Shelton apparently came into contact with poison ivy, poison oak or a similar plant, and contracted a facial rash or other skin ailment.

For the next few days, the rash worsened while Shelton continued working. On July 12, 2006, Shelton's skin condition had worsened to the point that he could not fully open his eyes. He was taken to the emergency room at CAMC Memorial Division.

Asplundh had a written policy regarding absenteeism, which stated "employees absent for two consecutive work days, who do not call their immediate supervisor, will be deemed to have voluntarily quit. If absence is for medical reasons, a doctor's slip may be required to be furnished."

According to the suit, Shelton or a friend acting on his behalf, called Collins twice, to inform Collins of Shelton's condition and inability to work. At no time did Collins inform Shelton of his right to file a workers' compensation claim, nor did he file an Employer's Notice of Claim, the suit says.

While at the emergency room, Shelton received a note from the doctor, excusing him from work until July 14, a Friday. Shelton claims he normally only worked Mondays through Thursdays.

On Monday, July 17, Shelton was still not able to work, as his rash and swelling had not resolved, so he or his friend called Collins and left a voicemail that Shelton would not be able to work.

The next day, Shelton returned to the emergency room and received another note that excused him through July 20, 2006. He claims several calls were made to Collins and other Asplundh employees, keeping them informed of his medical inability to work.

On Monday, July 24, 2006, Shelton returned to work. Upon his return, he was informed by Collins that he and Asplundh considered Shelton to have voluntarily quit and that he would have to wait 30 days to reapply if he wished to continue working for the company, the suit says.

Shortly after, Shelton received a statement from his life insurance company, which said that Shelton was considered terminated from employment on July 11, the first day he missed work.

Shelton claims he tried several times to get his job back, then applied for state unemployment benefits.

On Dec. 14, 2006, the Bureau of Employment Programs Board of Review, through Judge William Smith, found that Shelton had made the required daily calls to Asplundh and found that Asplundh did not show a violation of its absenteeism policy and that Shelton had indeed been discharged, but not for any misconduct or policy violation, the suit says.

In the 10-count suit, Shelton seeks compensatory and punitive damages for the emotional distress and lost wages he suffered.

Attorney Steven B. Wiley is representing Shelton. The case has been assigned to Judge Jennifer Bailey Walker.

Kanawha Circuit Court case number 08-C-1226

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