CHARLESTON – A security guard says he was constructively terminated because the motel where he worked refused to follow safety protocols at the beginning of the COVID-19 pandemic.
James Elam filed his complaint May 26 in Kanawha Circuit Court against CACE Inc. doing business as Sleep Inn in Cross Lanes.
According to the complaint, Elam began working at the motel as a security guard in March 2019. He says he never was disciplined and received two raises during his short tenure.
In April 2020, he says guests staying at the facility were coming from various COVID-19 “hot spots” then such as New York and New Jersey. HE says other hotels were shutting down, but the Sleep Inn chose not to close.
Elam says he repeatedly advised management about the need to implement CDC, state DHHR and OSHA safety precautions, such as requiring everyone to wear masks.
“Defendant’s management refused to implement safety measures and expressed the believe that plaintiff was being ‘hysterical’ and overreacting to the pandemic as well as the recommendations to prevent transmission made by state and federal agencies,” the complaint states.
Elam says he made multiple complaints to the Kanawha-Charleston Health Department about the motel’s failure to implement safety precautions to protect employees and guests. He says he asked management for the authority to ask guests to wear masks, but that suggestion was refused.
He also says a newspaper article titled “Fear of Coming to Work Won’t Keep Your Job Safe” was posted in the employee lounge. Elam says it was posted to intimidate employees and to keep them reporting to work during the pandemic despite no safety precautions being taken by the defendants.
Elam says multiple employees expressed concern about their safety, and he says three walked off the job out of fear. He also says the defendant made “substantially more money” during the pandemic than before.
On July 6, 2020, Gov. Jim Justice issued an executive order that required all individuals over the age of 9 to wear face coverings in confined indoor spaces. The next day, Elam says he asked his supervisor if the hotel was going to let him enforce the order, but he again was told no.
Elam told his supervisor he was only going to work if the defendant was going to comply with the executive order and permit him to enforce it. He says he had no choice but to refuse to work due to the unsafe condition for himself and co-workers and that the defendant was in direct violation of the law via the executive order.
On July 8, 2020, Elam asked him supervisor if he was on the schedule to work and was told he was taken completely off the schedule. He again told his supervisor he would return to work if the defendant would implement a mask policy for co-workers and staff. He says he never was called back to work.
Elam says his constructive termination is in direct violation of state law via the executive orders issued at the start of the pandemic. He says the defendant’s actions were willful, wanton and/or intentional and were taken with reckless disregard and indifference. He says he has suffered and will continue to suffer economic damages, including lost wages and benefits. He says he also has suffered emotional damages, such as humiliation, mental pain and suffering, emotional distress and embarrassment.
He seeks compensatory, general and punitive damages as well as attorney fees, court costs, pre- and post-judgment interest and other relief.
Elam is being represented by Kurt Entsminger, Phillip Estep and W. Scott Evans of Estep Entsminger Law Group in Charleston. The case has been assigned to Circuit Judge Maryclaire Akers.
Kanawha Circuit Court case number 22-C-413