LEWISBURG, WV (LOOTPRESS) – West Virginia civil rights lawyer John Bryan of Union has filed a lawsuit against a company he claims tried to force his client to take a Covid-19 vaccine.
Bryan filed the suit in Greenbrier County circuit court on hehalf of Stephanie McCutcheon.
“Today we filed suit against Enlivant, a Chicago company who owns and operates an assisted living facility in Greenbrier County, West Virginia operating as Seasons Place Assisted Living,” Bryan said in a statement.
“On June 1, 2021 they terminated my client … for refusing to take an unapproved non-mandatory vaccine for Covid-19.”
The attorney attached a letter McCutcheon received from the company’s human resource director after she complained about the
company’s verbal vaccine mandate.
“As you can see, knowing it was a violation of federal law to mandate the vaccine, they attempted to frame her termination as a resignation,” Bryan wrote.
“Given that it appears to be a form letter, they have apparently done this to other employees.
They have assisted living facilities in numerous states,” the Monroe County lawyer said.
“Our legal theory is a state-law based claim of retaliatory discharge. Basically, as everyone knows, West Virginia is an at-will employment state. However, there was an exception created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), which provides that:
‘The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.'”
Bryan added, “The State Supreme Court has defined the areas from which “public policy” may derive:
‘The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.”’
Bryan goes on, “So federal laws and regulations may form the basis of ‘public policy.’ Now whether that public policy is ‘substantial’ depends on whether it’s ‘widely regarded as to be evident to employers.’ No doubt that requirement is met in this case. A quick google search will reveal an enormous amount of discussion and advice regarding the legality of employers mandating the vaccine.”
In summing up the case, which will be widely viewed as a precedent-setter, the attorney said, “we shall see ….”
The suit asks for an expedited hearing for a preliminary injunction enjoining Enlivant from terminating employees for choosing not to take a non-mandatory, unapproved vaccine, and directing that McCutcheon be re-hired. In addition, it seek a declaration that a private employer may not terminate or take adverse action against employees for choosing not to take the Covid vaccine.
The suit seeks monetary damages, punitive damages and attorney fees.