WEST VIRGINIA RECORD

HUNTINGTON – Fifth Third Bank says a woman lost her job because she failed to follow policies and procedures, but the woman maintains her position was terminated because she was older than 40 and had cancer.

In her complaint filed July 2 in Wayne Circuit Court, Tina Mynes claims she was informed on Feb. 1 that her position as a customer service manager at the Kenova branch of Fifth Third Bank was being eliminated.

Mynes contends the bank decided to abolish her position because she had been diagnosed with colon cancer shortly after she underwent a Jan. 19 surgery and because she was a woman older than 40.

According to the complaint, Mynes had been receiving medical treatment since Dec. 1 and was receiving short term disability benefits that were to continue until March 1.

But after she informed the bank of her cancer, Mynes was told her job was being eliminated because of transaction count.

"Plaintiff believes that her transaction count was higher than several other branches and that she was actually being fired because of her use of medical leave, disability, age, and/or sex," her suit states.

But Fifth Third Bank maintains Mynes was terminated for legitimate and non-discriminatory reasons.

"At all times in the Complaint, Fifth Third maintained and enforced policies and procedures to address all conduct alleged in Plaintiff's Complaint," the suit states. "Plaintiff failed to avail herself of the policies and procedures which Fifth Third had in place."

After her position was eliminated, Mynes says other younger employees and male co-workers were offered other positions.

But Fifth Third Bank contends that Mynes, too, could have applied for an open position and may have been offered subsequent employment in a different position.

Because of her position's elimination, Mynes says she lost wages and benefits, incurred out-of-pocket expenses and experienced emotional and mental distress, humiliation, anxiety, embarrassment, depression, aggravation, annoyance and inconvenience.

She claims Fifth Third Bank violated the West Virginia Human Rights Act and the Family and Medical Leave Act.

Mynes is asking the court to enter a declaratory judgment declaring Fifth Third Bank's actions were in violation of both acts, to enter a permanent injunction on the bank ordering it to establish an on-going training program on the subject of disability, age and sex discrimination in the workplace and on the Family and Medical Leave Act and to enter a permanent injunction against the bank to cease its unlawful practices.

In addition, Mynes is seeking back pay, a reinstatement to her position or, in the alternative, front pay, liquidated damages equal to back pay and interest, compensatory damages, all out-of-pocket expenses, punitive damages, pre- and post-judgment interest, costs, attorney's fees and other relief the court deems just.

Fifth Third Bank denies that Mynes is entitled to any relief she is requesting, and the bank is asking the court to dismiss the case.

Because Mynes is a resident of West Virginia and Fifth Third Bank is an out-of-state corporation and because Mynes is seeking more than $75,000, Fifth Third removed the case to U.S. District Court for the Southern District of West Virginia on Aug. 6.

David L. Grubb and Kristina Thomas Whiteaker of The Grubb Law Group in Charleston will be representing Mynes.

Kevin L. Carr and Ellen J. Vance of Spilman, Thomas and Battle in Charleston will be representing Fifth Third Bank.

U.S. District Court case number: 3:09-cv-904