WEST VIRGINIA RECORD

CLARKSBURG -- A woman claims her employer wrongly fired her after her doctor required her to take extra time off work due to complications with her pregnancy.

Crystal Wolford filed a lawsuit in Monongalia Circuit Court against Michaels Stores and Linda McGervey.

Wolford claims she began working part-time for the Morgantown Michaels in May 2008 and became a full-time employee in September 2008. In March 2009, Wolford informed her bosses of her pregnancy, according to the complaint.

Immediately, her supervisors at Michaels began discriminating against Wolford. For example, store manager McGervey lowered Wolford's hours from her full-time status to part-time, the suit states.

"When plaintiff Wolford complained about this change, defendant McGervey stated that she was 'watching out' for plaintiff and that plaintiff did not need to be working full-time hours during her pregnancy," the complaint says. "Plaintiff Wolford's work hours were not restored to full-time until she complained to defendant Michaels' district manager, Pat Hawkins."

After finding out about Wolford's complaint, McGervey called Wolford into her office to express her dissatisfaction at Wolford's decision to complain, she claims.

Later, on April 26, 2009, Michaels implemented a new attendance policy, in which it gave employees points for absences, late arrivals or early departures from work. If an employee accumulated six points in a six-month period, he/she could face termination, according to the complaint. However, the policy exempts absences covered by the Family and Medical Leave Act, the suit states.

Due to her pregnancy, Wolford racked up four-and-a-half points between May 4 and June 2, but provided doctor's notes to explain her absences, the complaint says. She claims to have had no idea that her absences should have been covered under the FMLA because none of her superiors informed her of the act.

By June 2009, Wolford's doctor informed her that her pregnancy was high-risk, likely requiring her to miss more work because of complications with her pregnancy, according to her complaint. Instead of informing her of the FMLA after learning of Wolford's high-risk pregnancy, though, Wolford's superiors advised her that faced termination if she missed additional work, regardless of the reason, the suit states.

On June 24, 2009, Wolford became hospitalized for several days because of concerns over premature labor, the complaint says. At about the same time as her hospitalization, Wolford's husband's employer informed him of the FMLA that may have protected Wolford's job, she claims.

After discovering her rights, Wolford retrieved an FMLA request form and delivered it to the store, according to the complaint. Meanwhile, store supervisors had already posted Wolford's job as an open position and invited others to apply for it, the suit states. After Wolford discovered the job posting and complained to Michaels corporate offices about it, supervisors removed it, the complaint says.

On Aug. 6, Wolford claims she received her FMLA paperwork, which she attempted to promptly fill out as the paperwork informed her she had 15 days from the time she received it to return it to the store. However, Wolford could not fill out the required doctor's written statement because her obstetrician had been out of the office and would not return for another week, according to the complaint.

Later, a Michaels employee told Wolford she had 15 days to return the FMLA paperwork from the day it was mailed to her, requiring her to return it by Aug. 14 instead of Aug. 21 as she originally believed, the suit states.

"Plaintiff Wolford questioned this interpretation, and tried to explain to Ms. Hale that the cover letter Michaels included in the packet sent to her indicated that the paperwork was not due until August 21, 2009, fifteen days after plaintiff Wolford received it," the complaint says.

"Despite the information Michaels had provided to plaintiff Wolford in writing, Ms. Hale insisted that plaintiff Wolford submit the paperwork by August 14, 2009, or face termination. Plaintiff Wolford endeavored to meet this arbitrary new deadline but was unable to do so because her obstetrician was still not available to provide her with a written statement."

On Aug. 18, Michaels fired Wolford. The following day, she handed in her FMLA paperwork, two days before she believed she was supposed to return it, she claims.

In her five-count suit, Wolford alleges sex discrimination, pregnancy discrimination and disability discrimination in violation of the West Virginia Human Rights Act, retaliation, wrongful termination under the FMLA, FMLA interference and FMLA retaliation.

She seeks past and future lost wages and benefits, damages for emotional distress, punitive damages, past wages and employment benefits, reinstatement to her employment with full seniority and benefits, pre-judgment interest, liquidated damages, attorney's fees, costs and other relief the court deems just.

The defendants removed Wolford's case to U.S. District Court, saying that because she asserts violations for the same medical condition under both federal and West Virginia state acts, the case should be heard by a federal court.

"Whenever a separate and independent cause of action within the jurisdiction conferred by 28 U.S.C. 1331 (in this case, FMLA claims) is joined with one or more otherwise non-removable (in this case, WVHRA) claims, the entire case may be removed and the district court may determine all issues, or may remand the state law claims," the suit states.

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

Marla N. Presley and Marcia Greco Danaher of Ogletree, Deakins, Nash, Smoak and Stewart in Pittsburgh will be representing Michaels and McGervey.

U.S. District Court case number: 1:10-cv-51