WEST VIRGINIA RECORD

HUNTINGTON – The Putnam County Board of Education will have to pay a fired electrician $50,000 as a result of a consent judgment entered into with the U.S. Department of Labor.

Seth D. Harris, the acting Secretary of Labor, brought a complaint on April 29 on behalf of Michael Kelly, who was fired in 2011 after requesting time off to care for his mother. The Labor Department alleged the Board of Education was in violation of the Family Medical Leave Act.

The complaint was signed by John F. Gianola, an Assistant U.S. Attorney under U.S. Attorney for the Southern District of West Virginia R. Booth Goodwin II.

“By attempting to force Mr. Michael Kelly to resign and ultimately terminating his employment based, at least in part, on his request for FMLA leave, Defendant, as an employer subject to the provisions of the Act, violated the provisions of Section 105 of the Act… in that Defendant discriminated or retaliated against Mr. Michael Kelly for the exercise of rights provided under the Act or for opposing a practice made unlawful by the Act,” the complaint said.

Kelly began his full-time employment with the Putnam Board of Education on Nov. 7, 2007. More than three years later, he told Assistant Superintendent Brad Hodges he needed to care for his mother, who suffered from Alzheimer’s and dementia.

Kelly had learned that his mother’s dementia had worsened to the point that he assisted living facility could no longer provide adequate care, the complaint says.

On Feb. 3, 2011, Kelly asked for a leave of absence, but Hodges refused, the complaint says. Hodges allegedly informed Kelly that he should resign to avoid being fired.

The next day, Human Resources manager Barbara Brazeau asked Kelly when she would receive his resignation, the complaint says. On Feb. 7, 2011, Kelly told her that he would not be resigning.

Later that month, Superintendent Harold Hatfield accused Kelly of incompetency, insubordination and willful neglect of duty as a result of his absence and prior absences, the complaint says.

On Feb. 16, 2011, Kelly attempted to provide Hatfield with a written FMLA request, but Hatfield allegedly refused to accept the document and told Kelly he would be fired.

In a letter dated Feb. 16, 2011, Kelly was suspended without pay and was told his termination would be recommended at a coming meeting, the complaint says. The board voted unanimously to fire him on Feb. 22.

The complaint said Kelly was never provided with his rights under FMLA . Kelly had been employed full-time for at least 12 months, had performed at least 1,250 hours of service during the previous 12 months, had not taken any leave as FMLA leave prior to his request and 84 people were assigned to his work location, the complaint said.

The two sides entered a joint motion to enter the consent judgment on May 17, and U.S. District Judge Robert C. Chambers granted it the same day.

In addition to the $50,000 payment to Kelly, the Putnam Board of Education will be required to take certain educational steps. They are:

-Designate at least one manager, whose name will be submitted to the Labor Department, to be responsible for ensuring the enforcement of FMLA;

-Post FMLA enforcement posters at conspicuous places, with at least one in each of the Putnam County schools to be seen by employees;

-Provide training to managers in supervisors in the procedural requirements of FMLA;

-Provide managers, supervisors and employees with an accurate FMLA handbook explaining the procedural requirements of FMLA;

-Review all denied requests for employee leave for the 2012-13 school year to ensure it did not interfere with any right provided under FMLA; and

-Review information of any employee who alleges FMLA violations.

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