Circuit Judge David Sims has recused himself from hearing former Wheeling Human Rights Commission executive director Theresa Garrett's lawsuit against the city seeking unpaid benefits she claims she's owed after leaving her position at the end of July.
Sims, a former Ohio County commissioner and practicing attorney, asked to be excused from hearing the case, citing an unspecified conflict of interest.
Judge James Mazzone, chief judge for the 1st Judicial Circuit, granted the request and reassigned Garrett's case to Judge Martin Gaughan. However, Gaughan has not worked since early November, when he underwent surgery after falling and breaking his hip. Gaughan's spot is being filled by Senior Status Judge Arthur Recht, who has served in that capacity since retiring as a full-time circuit judge on Jan. 31, 2012.
No hearing date has been set in the lawsuit, in which Garrett is seeking about $5,700 in unpaid sick leave, vacation time and compensatory time off, which some employees are entitled to receive in return for overtime hours worked. Rather than accept a reduction to part-time status after the Human Rights Commission budget was slashed by almost 80 percent, Garrett informed city officials June 28 of her intent to retire after 26 years as the commission's executive director.
City Solicitor Rosemary Humway-Warmuth's motion to dismiss the lawsuit asserts that as the Human Rights Commission's executive director, she was on par with department heads who are not entitled to overtime pay or compensatory time off in return for hours worked beyond 40 per week, as are hourly employees. That, the city argues, means commission members had no authority to pre-approve comp time for Garrett, and City Manager Robert Herron - who has sole authority to set compensation for most employees - acted properly in altering entries on her time sheet from comp time to vacation time.
City officials also say Garrett is not a retiree because she was not a member of the municipal employees' pension plan, and refute Garrett's claims she was informed of her eligibility to retire in 2012. Only retirees are eligible to be paid for a portion of unused sick leave at the end of their employment.
Garrett's attorney, Parkersburg lawyer Walt Auvil, argued in a Dec. 12 filing that the city's motion to dismiss should be denied because Garrett's status as a retiree and eligibility to be paid for comp time are issues that need to be explored in more depth through discovery.