Defendant's Attorney: Jaseon P. Pockl and Thomas E. Buck

Description: Charleston, West Virginia employment law lawyer represented Plaintiff, who sued Defendant on a Family and Medical Leave Act violation theory.

This case was filed in the Circuit Court of Logan County, 21-C-143, and was removed to federal court by Defendant.


Plaintiff Mark A. Brooks (“Plaintiff”) filed this action, alleging that his employment was unlawfully terminated after he was injured at work. (ECF No. 1-1.) On or about August 7, 2019, Plaintiff allegedly injured his right foot while at work, and, at some point, was diagnosed with a tear of his right foot peroneal tendon. (See id. at 3, ¶¶ 7-8.) Plaintiff claims he filed for West Virginia Worker's compensation benefits on October 25, 2019, but continued to work for Defendant Fast Change despite his pain. (Id. at 4, ¶ 9-10.) However, according to the Complaint, Plaintiff requested leave under the Family Medical Leave Act (“FMLA”) on or about September 12, 2019, after his physician “informed him that if he did not rest his foot and take time off work,

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his injury would become worse and likely permanent.” (Id. at ¶ 11.) Plaintiff states that his request for FMLA leave was granted from September 16, 2019, through December 9, 2019, and that Defendants were aware of his FMLA leave. (Id. at ¶ 12.)

Then, Plaintiff alleges that, on or about October 7, 2019, his physician issued him a written excuse from work until January 13, 2020, and Defendants were provided a copy of this excuse. (Id. at ¶ 13.) Plaintiff claims he advised Defendants that he had a foot surgery scheduled for January 2020, and that “he was expected to be able to return to work soon thereafter.” (Id. at ¶ 14.) Thus, Plaintiff states he did not return to work when his approved FMLA period ended on December 9, 2019. (Id. at ¶ 15.)

Despite this excuse, Plaintiff alleges that, on or about December 19, 2019, Defendant Fast Change, by and through Defendant Sorrell, asked Plaintiff if he could return to work. (Id. at 4-5, ¶ 16.) Plaintiff claims that, although he replied that he could not return to work “per his doctor's recommendation, ” he also explained that once his surgery was completed in January 2020, “it would not be long before he could return to work.” (Id.) Yet, Defendant Fast Change, by and through Defendant Sorrell, allegedly terminated Plaintiff without cause on that same day. (Id. at 5, ¶ 17.)

Plaintiff then initiated this action in the Circuit Court of Logan County, West Virginia, on November 22, 2021. (See ECF No. 1.) The Complaint asserts claims for (1) “Retaliatory Discharge/Workers Compensation Discrimination” under the West Virginia Workers' Compensation Act (“WVWCA”), (2) “Disability Discrimination and Failure to Provide Accommodation, ” (3) “Retaliation and Discrimination of the [FMLA].” (ECF No. 1-1 at 5-8.) Defendants removed the matter to this Court on December 27, 2021. (ECF No. 1.)

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The next day, Defendants filed the pending motion to dismiss the complaint for failure to state a claim upon which relief may be granted. (ECF No. 4.) Plaintiffs filed a response, (ECF No. 8), and Defendant timely relied, (ECF No. 9). As such, this motion is fully briefed and ripe for adjudication.

Outcome: For these reasons, the Defendants' Motion to Dismiss, (ECF No. 3), is GRANTED IN PART and DENIED IN PART. The Court DISMISSES any FMLA interference claim alleged in Count III. As to all other claims, Defendants' Motion to Dismiss is DENIED. Additionally, the Court ORDERS Plaintiff to replead his Complaint within 15 days of the entry of this Order and ORDERS Plaintiff to serve Defendant Sorrell within 30 days of the filing of the amended complaint.

Plaintiff's Experts:

Defendant's Experts:

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