Man says Division of Juvenile Services wrongfully terminated employment

By Kyla Asbury | Jan 8, 2013

CHARLESTON – A former employee is suing West Virginia Division of Juvenile Services for wrongfully terminating his employment.

Brandon Gerwig was hired by the defendant as a K-9 officer on Oct. 13, 2001, according to a complaint filed Dec. 28 in Kanawha Circuit Court.

On Nov. 21, 2009, Gerwig says he was involved in an automobile accident while in the course and scope of his employment and initially, he continued to work and attempted to perform his duties and responsibilities.

Gerwig claims after several medical appointments and as the effects of his injuries became more severe, he applied for and received benefits under the West Virginia Workers’ Compensation Act.

Although Gerwig’s injuries affected his ability to perform certain job functions, he was nonetheless qualified to perform the essential functions of his position with a reasonable accommodation, according to the suit.

Gerwig claims after filing his claim for benefits, he was contacted by a supervisor of the defendant and chastised for filing the claim and was told that the filing of his claim for benefits, along with his corresponding need for medical leave of absence, was an inconvenience for the Division of Juvenile Services.

At the insistence of his physicians, Gerwig remained off work. However, he was capable of performing other available positions and/or duties, but the defendant never provided or offered an accommodation for him, according to the suit.

Gerwig claims in December 2010 he received a letter from the defendant informing him that his employment would be terminated unless he was provided a full and unconditional release to return to work.

On Dec. 31, 2010, Gerwig’s employment was terminated because he was not released to return to work by his physicians, according to the suit.

Gerwig claims in October 2011, he was released to return to work, but because his employment had been terminated, he was forced to return to school, complete his degree and search for other employment.

The defendant wrongfully terminated Gerwig’s employment, which violated West Virginia code, according to the suit.

Gerwig claims the defendant also violated the West Virginia Human Rights Act by discriminating against him because of his disability.

The defendant’s conduct was malicious, intentional and in reckless disregard of Gerwig’s protected rights, according to the suit.

Gerwig is seeking compensatory and punitive damages. He is being represented by Stephen P. New, Stephen B. Farmer and Matthew H. Nelson.

The case has been assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 12-C-2578

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