Advance Auto Parts wants discrimination suit dismissed

CHARLESTON -– Advance Auto Parts wants to see a complaint one of its former employees filed against it dismissed, saying it did not fire her because of her gender as she alleges in her lawsuit.

Advance Auto Parts denies Amber P. Gibson's claim that the company discharged her from employment on Jan. 14 due to her gender. Gibson says her termination violates the West Virginia Human Rights Act.

In addition, Gibson alleges Advance Auto Parts failed to pay her final wages within 72 hours of her discharge – another violation of West Virginia law.

Advance Auto Parts admits to failing to pay Gibson's wages, but says her complaint should be dismissed because it fired her for "legitimate, non-discriminatory and non-retaliatory reasons."

In her complaint, Gibson claims she suffered aggravation, annoyance, inconvenience, humiliation, embarrassment and emotional and mental distress because of her termination. In addition, she lost wages, employment benefits and her personal dignity, according to the complaint.

She seeks an unspecified judgment, plus punitive and liquidated damages, attorney's fees, costs, pre- and post-judgment interest and other relief the court deems just. In addition, she wants the court to prevent the defendants from engaging in similar conduct in the future and to require it to participate in an educational program.

Advance Auto Parts removed Gibson's complaint from circuit court to U.S. District Court for the Southern District of West Virginia.

The Virginia-based company says the complaint belongs in federal court because it is resident of a different state than Gibson, who is a West Virginia resident.

In addition, Gibson is seeking more than $75,000, the minimum jurisdictional limit.

"If Plaintiff's claim for back pay is successful, it would equal approximately $20,221.60 for each year from her discharge," the suit states. "Assuming the trial of this action is completed within twelve to fourteen months of filing this Notice of Removal, two years of back pay in the amount of approximately $40,443.20 would be recoverable from the date of Plaintiff's discharge in January 2010 through the date of trial. Therefore, Plaintiff's claim for back pay alone would almost exceed the minimum jurisdictional requirement of $75,000."

Advance Auto Parts will be represented by Mark H. Dellinger and Joy B. Mega of Bowles, Rice, McDavid, Graff and Love in Charleston.

Gibson will be represented by Thomas H. Peyton of Peyton Law Firm in Nitro.

U.S. District Court case number: 2:10-cv-1204