Lawsuit: Smith Company Motor Cars discriminated against shareholder

By Kyla Asbury | Dec 6, 2012

CHARLESTON – A former employee is suing Smith Company Motor Cars, Inc., after he claims he was subjected to harassment and embarrassment.

Gerald N. Smith III and Vicki Smith were also named as defendants in the suit.

Brian D. Bailes was an employee and/or shareholder of Smith Company Motor Cars from 1999 until Oct. 3, according to a complaint filed Nov. 29 in Kanawha Circuit Court.

Bailes claims he consistently performed his duties in a satisfactory manner, but he was subjected to a consistent course of harassing or embarrassing conduct by Gerald Smith wherein he would direct Bailes to engage in activities that were in violation of public policy or care for the defendants when Gerald Smith was inebriated or otherwise incapacitated due to consumption of alcohol.

As part of a partnership plan between Gerald Smith and Bailes, in June 2006 they entered into a deferred bonus agreement for Bailes to receive a percentage of the adjusted gross profits from January 2006 until Dec. 31, 2009, according to the suit.

Bailes claims beginning Dec. 31, 2010, the deferred bonus agreement required Smith Company Motor Cars to distribute to him one-fifth of the deferred bonus account balance. In July 2010, Bailes and the defendants entered into a shareholder agreement wherein Gerald Smith was to transfer 5 percent of the common stock of the corporation to Bailes for that year, the suit says.

On Oct. 1, without warning, in breach of contract and in violation of the West Virginia Human Rights Act, it was directed that Bailes be suspended without pay, according to the suit. He says he wqas instructed to return company property and barred from the premises.

Bailes claims on Oct. 3, the defendant sent him a letter advising him that his employment was terminated.

The defendants terminated Bailes’ employment in whole or in part because of his age, according to the suit, and violated the West Virginia Human Rights Act.

Bailes claims following his termination, the defendants replaced his job duties with a male employee under the age of 40 and/or at a lower pay rate.

The defendants’ actions constitute wrongful and/or unlawful retaliatory discharge motivated in whole or in part by the defendants wishing to breach the shareholder and/or partnership agreement and/or deferred compensation agreement with Bailes primarily for the personal financial gain of Gerald Smith and Vicki Smith and/or on behalf of Smith Company Motor Cars, Bailes claims.

Bailes is seeking compensatory and punitive damages. He is being represented by Gregory B. Chiartas.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 12-C-2364

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