CHARLESTON — The West Virginia Department of Transportation has denied allegations against it in a complaint claiming an employee was retaliated against.
WVDOT argues David A. McGee failed to state a claim for which relief can be granted and that it is not liable to him in any amount, according to the Jan. 31 answer to the complaint filed in Kanawha Circuit Court.
The defendant contends there is a lack of jurisdiction and subject matter jurisdiction and that it is immune to the plaintiff's claims.
"Defendant denies that any act was taken against Plaintiff by reason of his membership in any protected class," the answer states. "Defendant denies that Plaintiff failed to retain any position as a result of any discrimination, retaliation or otherwise unlawful motivation and further deny that Plaintiff engaged in any protected activity."
The defendant argues it is immune to the plaintiff's claims for punitive damages and denies any employment contract was entered into between it and McGee.
McGee was employed by WVDOT beginning March 22, 1991, and a letter was hand-delivered to him on Sept. 3, 2020, stating the defendant had recommended him to be terminated via Form RL-544, which he refused to sign, according to a complaint filed in Kanawha Circuit Court.
The form included an addendum that indicated numerous alleged events that had taken place throughout the last two years of his 30 years of employment, according to the suit.
McGee claims the alleged events surrounded his nearly two-year ling Performance Improvement Plan that began Sept. 18, 2018, and was repeatedly extended through June 19, 2020.
"Plaintiff believes that Defendant's motivation for placing him on the PIP and keeping him on the plan for such an extended period of time was in retaliation for Plaintiff's past grievance filings and testimony against Defendants and specific individuals within the agency, namely Human Resources Manager Leslie Staggers," the complaint states. "Plaintiff believes that Defendant was using the PIP as a means to harass him and arbitrarily fill Plaintiff's personnel file with false disciplinary actions in order to be able to terminated Plaintiff for his prior protected activity."
McGee claims when the COVID-19 pandemic began, the entire office was allowed to work from home — except him. He was informed that because he was on the PIP, he had to work in-office.
The plaintiff was finally allowed to work from home for about a month before he was called back into office while the majority of employees still were allowed to work from home, according to the suit.
In July 2020, McGee was asked to help out with the night shift, but he informed the defendant he could not because he was the single father of two children he had adopted and there was no one to watch them during the night if he helped with the night shift, according to the suit.
McGee claims his supervisors told him they didn't care about his home situation and that he had to come work the night shift.
On Aug. 3, 2020, he was given a recommended dismissal letter and one month later, he was terminated and escorted out of the building by a State Trooper, according to the suit.
McGee is seeking compensatory and punitive damages. He is represented by Anthony Brunicardi, Walt Auvil and Kirk Auvil of The Employment Law Center in Parkersburg.
WVDOT is represented by Wendy E. Greve and Christopher T. Ferro of Pullin, Fowler, Flanagan, Brown & Poe in Charleston.
The case is assigned to Circuit Judge Joanna Tabit.
Kanawha Circuit Court case number: 22-C-738