WEST VIRGINIA RECORD

HUNTINGTON –- A Kentucky woman's lawsuit against Frito-Lay in which she alleges she was terminated because of gender discrimination has been moved to federal court.

Carolyn Lykins claims she was fired from her job as regional sales representative at Frito-Lay after her boss, Bobby Chaffin, repeatedly made discriminatory remarks to her.

She also alleges she lost $4,000 to $5,000 after the company did not pay her for a month's worth of work she performed.

Lykins began working at Frito-Lay in June 2005, according to the complaint she filed Dec. 16 in Cabell Circuit Court.

As part of her job, Lykins was required to order, stock, inventory, work on store displays, maintain her bin at the Huntington Frito-Lay plant and customer relations, the suit states.

Throughout her employment working under Chaffin, Lykins claims she was repeatedly harassed by Chaffin who treated her and another female employee in the same position differently than their male coworkers.

"This was not sexual harassment, from the standpoint that Chaffin did not create a hostile environment by making sexual comments or gestures," the suit states. "Instead, he created a hostile environment by nitpicking, needling, criticizing, belittling, public ridiculing, meddling, etc., in plaintiff's daily affairs, when he did not treat the male RSRs in the same manner."

Chaffin also told Lykins that the regional sales representative was a man's job and that she was taking the job away from men who have to work to support their families, she alleges.

In December 2006, Lykins stopped receiving paychecks and called the company's benefits hotline to inquire as to the reason, the suit states.

Later, she met with Chaffin and another defendant, Steve Adkins, who told her she had been incorrectly paid commission of 11 percent when she should have only received five percent, Lykins alleges.

Both men then asked Lykins to sign a promissory note or face termination or suspension, according to the complaint.

However, Lykins refused to sign the note, even though she was asked two more times, the suit states.

Lykins claims her payments continued to cease until the end of January 2007.

"She was never given any explanation in writing, nor did she sign any wage assignment to justify the fact that she was not paid for approximately one month, during which time she did not miss one day of regularly scheduled work," the suit states.

After refusing to sign the promissory note, Lykins was harassed even more by Chaffin but was not suspended or terminated, she claims.

Because of Chaffin's harassment and Lykins' work situation, she began to experience chest pain and extreme stress for which she saw a doctor in April 2007, according to the complaint.

At no time, though, did Lykins miss work to attend a doctor's appointment, the suit states.

However, in October 2007, Chaffin requested a doctor's medical release form, she alleges.

Because Lykins had stopped going to the doctor, she told Chaffin she was no longer under a doctor's care, according to the complaint.

Chaffin suspended Lykins after purportedly speaking to his boss, the suit states.

Chaffin's harassment continued, and he even violated company policies, Lykins alleges.

Once, Chaffin showed up at a Kroger where Lykins was performing her Frito-Lay job duties and asked if Lykins had any extra family-sized Doritos bags for a promotion at the store, according to the complaint.

Chaffin proceeded to take some bags from Lykins' inventory, then turned around and donated them back to Kroger, which had already purchased the bags, the suit states.

Lykins asked Chaffin what to do about the bags, and he told her to "sample it out," she alleges.

Knowing Chaffin violated company policy, Lykins called Frito-Lay's "Speak Up" hotline to inform the company of the incident, according to the complaint.

She also called Kroger, who also called Frito-Lay about the problem, the suit states.

Despite the calls, Chaffin was never disciplined for the problem, Lykins claims.

On numerous occasions, Lykins continued to call the "Speak Up" hotline to inform Frito-Lay of inventory from her bin that came up missing while she was on her route, according to the complaint.

Only Lykins and Chaffin had access to the bin, the suit states.

When Lykins asked Chaffin what to do about the missing products, he told her to short it, or to record that the bags were not in her bin when it was delivered, she claims.

"Plaintiff was uncomfortable with this practice but she did exactly as she was instructed by Chaffin," the suit states.

After seeing Chaffin violate numerous policies and after her suspension, Lykins called Frito-Lay and was finally able to speak to the company's Vice President Scott Gakenheimer, according to the complaint.

"At the end of the conversation, without any discussion about an investigation, Gakenheimer announced that Frito-Lay was standing behind Chaffin," the suit states.

Feeling there was nothing further she could do, Lykins continued to face harassment from Chaffin and remained under severe stress, she alleges.

Again in 2008, Lykins began seeing a doctor for chest pains and stress, according to the complaint.

In July, Lykins had a doctor's appointment for her stress-related problems, she claims.

Because the appointment was in the morning, Lykins told Chaffin she would return to work in the afternoon, according to the complaint.

But Chaffin told her to take the full day off with pay, the suit states.

"Plaintiff was skeptical of Chaffin's motives, and she even made a comment to him that she did not trust him because he was being too nice to her," the suit states.

When she returned to work, several items were missing from her bin, Lykins alleges.

Yet again, Chaffin told her to short the products, according to the complaint.

"What plaintiff did not know is that Chaffin had supervised the prior delivery, on her day off, and in a very unusual step, Chaffin had requested the delivery person to certify the inventory that he had delivered to plaintiff's bin," the suit states.

The next day Lykins was again missing inventory and was told to short it, which she did, Lykins alleges.

When she returned to work the following Monday, Lykins was asked about the inventory discrepancies and was suspended for them, according to the complaint.

A number of Lykins' fellow RSRs confirmed that their inventories, too, had been missing items, the suit states.

Still, in September, Lykins received a termination letter dated Aug. 8, she claims.

Because of her termination, Lykins lost wages and experienced emotional suffering, embarrassment and health problems.

Throughout her job at the company, Lykins made $400 per week, according to the complaint. She also averaged 20 to 35 hours of overtime each week, for which she was only paid $5 per hour, she claims.

"Therefore, plaintiff was underpaid $10 per hour for an average of 27 hours per week for a three-year period," the suit states.

Because Frito-Lay failed to pay Lykins between December 2006 and January 2007 and because it underpaid her in her overtime work, it violated the West Virginia Wage Payment and Collection Act, Lykins alleges.

However, Frito-Lay alleges there are no rights to overtime compensation in West Virginia law, but those arise only under federal law.

Therefore, it has removed the case to U.S. federal court.

One of the reasons for her termination was because Lykins refused to sign the promissory note, a violation of West Virginia public policy, according to the complaint.

Frito-Lay, through Chaffin's conduct, intentionally inflicted emotional distress by actions that were atrocious, intolerable and so extreme to exceed the bounds of decency and by acting recklessly while being certain such conduct would cause emotional distress, the suit states.

The company and its employees discriminated against Lykins and she was fired, all because of her gender, which is a violation of the West Virginia Human Rights Act, she claims.

In the seven-count suit, Lykins is seeking unspecified compensatory and punitive damages, actual unpaid and liquidated damages of three times the amount of unpaid damages, plus attorney's fees, pre- and post-judgment interest and other relief the court deems just.

Timothy P. Rosinsky of the Rosinsky Law Office in Huntington will be representing her.

Brian D. Yost of Holroyd and Yost in Charleston and Raymond A. Cowley of Cox, Smith, Matthews, Inc. in McAllen, Texas, will be representing Frito-Lay and its employees.

U.S. District Court case number: 3:09-0046