Man says he was discriminated against after work accident

WHEELING – A Wellsburg man has filed suit alleging his supervisors treated him differently and discriminated against him after he was seriously injured when an SUV ran over him.

Donald Case claims he was hit by a Pennsylvania state inspector's SUV while he was at work for Swank Associated Companies on Sept. 10, 2003.

Because of the accident, Case sustained multiple injuries to his chest, arms, legs and calves and was unable to work for Swank for the remainder of 2003, according to the complaint filed April 22 in U.S. District Court.

In 2004, Case returned from work, but had physical restrictions his physician imposed on him, the suit states.

However, Swank would not allow Case to return to work unless his physician provided a note with no physical restrictions, Case claims.

"Mr. Case begged his physician to allow him to return to work without restrictions, and his physician agreed so long as the Defendant would informally accommodate Mr. Case's physical restrictions," the suit states.

Everything was fine until 2006 when Case was assigned a new supervisor, John Cirniglia, according to the complaint.

Cirniglia refused to accommodate Case in his physical accommodations in the same way as Case's previous supervisor had. In fact, Cirniglia would not allow Case to work on July 25, 2006, saying he was too hurt, the complaint says.

Repeatedly, Cirniglia would make derogatory comments toward Case, calling him a "cripple" and "too slow," Case alleges.

Finally, Case reported Cirniglia's behavior to Swank's principal, Russ Swank, according to court records.

But Case was screamed at on Aug. 9, 2006, by Swank's division manager, Mike Golembiewski, for making a complaint, according to the suit.

"Mr. Golembieski retorted that he would do whatever he wanted to do to Mr. Case, and he refused to move Mr. Case off Mr. Cirniglia's crew," the suit states.

Case was treated even worse after his complaint, the suit says. For example, he was sent on jobs that required excessive traveling, was sent home when others stayed overnight to work and was told to go home because there was not enough work. His complaint was never fully investigated, Case says.

In 2006, Case called the Equal Employment Opportunity Commission to complain of the way Swank was treating him.

The union filed a suit on his behalf on May 21, 2007, in which it alleged Swank ceased to continue to accommodate Case in his disability, Case says.

Before the start of the 2007 construction season, Case told his supervisors at Swank that he would be undergoing knee surgery due to his 2003 accident and would need additional time off work, according to the complaint.

By May 2007, Case was ready to return to work, but only with physical restrictions, the complaint says.

"Mr. Case's restrictions, imposed on May 14, 2007, allow him to sit for up to eight hours a day, and occasionally lift and carry up to 20 lbs," the suit states. "Mr. Case could occasionally drive large trucks with automatic transmission, and was capable of doing light or sedentary work."

However, because of the restrictions, Case was not allowed to return to work even though it had jobs he can perform, he says. Even the suit the union filed against Swank did not convince the company to rehire him.

Before his accident, Case claims he was "one of the hardest working employees" and was known for his speed and performance. But Swank did not speak of Case's hard work when he began applying for other jobs, the suit states. Instead, the company gave negative references, Case claims.

In the three-count suit, Case is seeking unspecified injunctive relief, reinstatement or front pay in lieu of reinstatement, back pay, unspecified compensatory, punitive, exemplary, special and general damages, attorneys' fees and other relief the court deems just.

He is represented by Frank X. Duff and Sandra K. Law of Schraeder, Byrd and Companion in Wheeling.

U.S. District Court case number: 5:09-CV-41