Federal judge allows attorney to fix typo, remands lawsuit

By John O'Brien | May 1, 2013

CHARLESTON – After claiming his original complaint should not have contained a federal claim under the Civil Rights Act, a former employee of Bert Wolfe Ford will have his case heard in state court.

On April 26, U.S. District Judge John T. Copenhaver, Jr., of the Southern District of West Virginia, granted Marcus Thompson’s motion to remand his lawsuit back to Kanawha County Circuit Court.

Thompson’s original complaint, filed Feb. 25, contained a federal claim. His attorney, Erika Klie Kolenich of Klie Law Offices asked the defendant’s attorneys to correct the “typographical error” on March 6, but they declined.

“Respecting fairness to the litigants, it is noteworthy that Mr. Thompson’s counsel immediately, and quite candidly, confessed error to her opponent within a day of removal, asserting the singular reference to Section 1981 (the Civil Rights Act) was a mistake,” Copenhaver wrote.

“There is independent corroboration for counsel’s insistence that inadvertence was in play. That is, had she truly desired to plead a Section 1981 claim, there is no plausible explanation for specifically invoking that statutory provision as to Count One – which alleged employment discrimination – but not Count Two – which alleged a hostile work environment.

“Fairness thus suggests a mistake resulted in removal and that remand is appropriate.”

On June 17, 2010, Thompson, an African-American, was hired by the defendant as a customer service advisor, according to the original complaint.

Thompson claims co-workers made offensive racial comments and jokes toward him.

Bert Wolfe Ford was aware of the racial comments and jokes made toward Thompson, but failed to remedy the situation, according to the suit.

Thompson claims his employment was terminated without good cause and without due consideration of the facts and circumstances surrounding his employment with Bert Wolfe Ford.

Bert Wolfe Ford created a hostile working environment and wrongfully terminated Thompson’s employment in retaliation and was a violation of the West Virginia Human Rights Act, according to the suit.

Kolenich amended the complaint on March 12 to drop the federal claim and filed a motion to remand the case six days later.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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