CHARLESTON – A lawsuit filed by a former employee against Lowe's Home Centers alleging age and disability discrimination has been removed to federal court.
The notice of removal was filed in U.S. District Court for the Southern District of West Virginia at Charleston by Lowe's attorneys Eric W. Iskra and Sarah E. Kowalkowski of Spilman Thomas and Battle in Charleston.
The defendant argues that the amount in controversy in the complaint is more than the $75,000 threshold of removal from state court.
The defendant also contends that while the plaintiff doesn't specify a specific amount for damages in the complaint, West Virginia courts have upheld emotion distress damages from $50,000 to $150,000, which, including with the alleged compensatory damages, would exceed the state court limit.
Lowe's also argues that because it is a North Carolina corporation, diversity exists between it and plaintiff David W. Francis, who is a West Virginia resident, making the federal court the proper jurisdiction.
Francis worked for Lowe's for approximately 16 years until he was fired on May 1 at the age of 64, according to a complaint initially filed in Kanawha Circuit Court.
Francis claims a year prior, he tripped and fell over a pallet at work and broke his elbow and, although he returned to work immediately, his physician took him off work until January. He returned in January to light duty.
After he returned to work, his suit states he was hospitalized for two days due to low sodium, which the Family and Medical Leave Act (FMLA) covered, however, the defendant issued him a written discipline for missing work because of the hospital stay. He claims he also missed two days of work when he twisted his knee.
Francis claims when he was fired on May 1, his supervisor made several comments regarding his age, which he believes was discriminatory.
The plaintiff alleges defendant's actions violated FMLA, substantial public policy and the West Virginia Human Rights Act.
Francis is seeking compensatory and punitive damages. He is represented by Richard W. Walters and Carl W. Shaffer of Shaffer & Shaffer.
U.S. District Court for the Southern District of West Virginia case number 2:19-cv-00837
