In March 2012, John Doe began to work at the Lowe’s in South Charleston, according to a complaint filed in Kanawha Circuit Court and later removed to federal court.
Doe claims that he has suffered from sleep apnea since before he worked at Lowe’s and his medical condition periodically caused him to oversleep and run a few minutes late for work, but no more than five minutes after he was permitted to arrive.
Lowe’s had access to and possession of the documentation and diagnosis and had knowledge of John’s need for using FMLA leave to excuse the times that he was unable to report to work on time due to sleep apnea, according to the suit.
Doe claims he was late for work on a number of occasions due to his severe sleep apnea and The Reed Group, which maintains the defendant’s FMLA records, documented and represented to Doe that he had used valid FMLA excuses for his apnea-related tardiness.
The plaintiff relied on those representations from the Reed Group and understood that he was receiving permission to arrive late to work and for those late arrivals to be credited against his FMLA time, according to the suit.
Doe claims in Fall 2015, a store manager known as “Steve” confronted him about his late arrivals and he explained his medical condition and Steve told him that that was not an excuse, that Lowe’s had a business to run and that he needed to be there on time.
The plaintiff continued to be a few minutes late periodically, due to his sleep apnea, but he feared for his job due to Steve’s comments and the pressure coming from management that was urging him to stop availing himself of the accommodation of arriving late due to sleep apnea, according to the suit.
Doe claims also in 2015, he discovered he was being paid at a lower rate of pay than females in this same section at Lowe’s and, in 2016, he raised concerns about the wage disparity.
The plaintiff was repeatedly looked over for promotions, according to the suit.
Doe claims Assistant Store Manager Mike Blankenship began harassing him in early 2016 and in March, he was issued a written discipline for being late, even those Lowe’s and the Reed Group had also informed him that he was permitted to be late due to his sleep apnea.
The plaintiff felt it was an impossible situation because he was being told on one hand that he had an accommodation and then he was disciplined and placed in peril of discharge when he made use of the accommodation, according to the suit.
Doe claims he felt he could not work safely for Lowe’s without the accommodation and he repeatedly made efforts to avail himself of the work accommodation.
On May 10, Doe was discharged for “no-call/no-show” issues, according to the suit.
Doe claims the defendants violated the Americans With Disabilities Act, FMLA, the West Virginia Human Rights Act and wrongfully terminated his employment.
Doe is seeking compensatory and punitive damages. He is being represented by Samuel B. Petsonk of Mountain State Justice.
Lowe’s is represented by Eric W. Iskra and Sarah E. Kowalkowski of Spilman Thomas & Battle.
U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-11276