PENNSYLVANIA RECORD

A Delaware County, Pa. man has filed a federal discrimination lawsuit against the popular Pennsylvania convenience store chain Wawa, contending the company fired him after he took leave to care for his ailing spouse.

Philadelphia attorney Steven T. Stern filed the civil action Nov. 9 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Chester, Pa. resident Roy Cross.

According to the complaint, Cross was fired Nov. 19, 2009, from his job as a forklift operator for the company, a termination that he alleges was related to his having to take time off of work to care for his wife, who was suffering from serious back problems.

Cross, who was first hired by Wawa in August 2005, had to take intermittent time off from work at various times throughout 2007, 2008 and 2009 to care for his spouse, who had various surgeries to correct problems with her spine.

The lawsuit claims that Wawa was well aware of the medical issues involving the plaintiff’s wife, and that the company granted federal family and medical leave to Cross on the occasions where he requested it.

And when he did request the time off, the suit states, Cross would give his employers advanced notice when he knew of scheduled medical appointments for his wife, and that he typically wouldn’t take more than one or two days off work at any given stretch.

Furthermore, when his wife had to have surgery, and Cross needed to take time off to help her recuperate, Cross would use accumulated vacation and personal leave, not leave under the federal Family and Medical Leave Act, the suit claims.

On occasions where Cross did have to take immediate and unforeseeable leave because of emergencies involving his wife, the plaintiff would put in for FMLA leave, the complaint states, and he would always provide his employer with a doctor’s note explaining the work absence.

The latter occurred on Nov. 9, 2009, when Cross awoke to discover his wife in terrible pain and unable to move, the suit states. Cross called his supervisor to inform him that Cross would have to be out of work for the day, and possibly the following day. His supervisor, the suit states, OK’d the absence, and asked Cross to provide documentation upon his return.

Upon his return to work on Nov. 11, 2009, the suit states, Cross was not permitted to hand in the doctor’s note, and he was subsequently placed on a five-day, unpaid suspension.

After he returned from the suspension, the suit claims, Cross was directed to a meeting room where he was given written notice of his termination.

At the time, Cross was not given a chance to explain his absence, including relaying his conversation with his supervisor who OK’d the brief time off, the lawsuit claims.

“Defendant’s conduct is a violation of the FMLA in that Defendant has discriminated against Plaintiff by terminating his employment because he attempted to exercise his rights under the FMLA and retaliated against him for exercising his FMLA rights,” the lawsuit states.

According to his complaint, Cross has been unable to secure steady employment since his discharge.

“Defendants acted willfully, outrageously, maliciously, illegally, intentionally and/or with animus toward Plaintiff, with knowledge that it was violating the FMLA,” the lawsuit states. “The close proximity in time between Plaintiff’s request for FMLA intermittent leave and his discharge establishes that retaliation was the sole, motivating and/or likely reason for the discharge of Plaintiff.”

The lawsuit claims that Cross has suffered “irreparable harm,” including loss of salary and benefits, and mental anguish and embarrassment.

Cross seeks back and front pay and benefits, work reinstatement, compensatory and punitive damages, medical expenses incurred by reason of the denial of medical insurance benefits, pre-judgment interest, attorney’s fees and other court relief.

A jury trial is being demanded.

The federal case number is 2:11-cv-07011-RK.