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D.A.: Lowe's Lied To Avoid Injured Worker's Claim

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Employee Wages Six Year Battle Against Home Improvement Chain

By Al Norman

SAN MATEO COUNTY, CA--A District Attorney for the County of San Mateo has concluded that a supervisor at Lowe's home improvement store lied repeatedly to state investigators to avoid having to accept responsibility for a worker injured at the retailer's San Bruno, California warehouse store.

The injured worker, Joe Dow, has not been able to work since October, 2004 when he was instructed by a Lowe's supervisor to load 100 bags of concrete into customers' cars. While lifting the 60 to 80 pound bags of concrete alone, Dow reinjured an old neck and spine injury from a car crash twenty years ago. Despite the fact that Dow was hired as a 'sales specialist,' and his job description said he would not be required to lift more than 50 pounds without assistance, and despite the fact that Dow told his supervisor that he had been treated previously for a back and neck injury---Lowe's sent him out to lift heavy bags of concrete---and Dow has not been able to work since.

According to an 8 page letter to Dow from San Mateo District Attorney James P. Fox dated December 20, 2010, the Lowe's supervisor lied to the California Department of Fair Employment and Housing (DFEH), and the "lies continued to undermine Dow's on-going efforts to hold Lowe's accountable for terminated him to avoid their responsibility to him."

Dow charges that Lowe's 'doctored' his job application forms by writing the word "None" over a question that asked if Dow needed any accommodations to perform his job. Dow's own handwriting appears to have been clumsily altered by another hand.

"The manager I was working with knew I had a disability," Dow says, "but insisted I finish the work, regardless." The day after the injury, Dow filed a worker's compensation form, and was authorized to be treated by U.S. HealthWorks Medical Group, which handles Lowe's medical incidents. Despite indicating he was in severe pain, Dow was given some pain relievers, an ice wrap, and told to return to work the next day.

Dow was sent to U.S. HealthWorks two more times. On his second visit he was told to report to work again. But on the third visit, unable to get an appointment, Dow visited a nearby medical center. Lowe's refused to give the medical center worker a Workman's Comp number, and instructed the center not to treat Dow. But the center examined Dow anyway, and sent him home with instructions for "No work for 3 days," with a referralto an orthopedic specialist.

Dow contacted a Lowe's representative at Bunch & Associates--a nurse/care manager-- who approved him to see an orthopedic specialist. On October 27th---16 days after his injury, Dow was advised by his Lowe's supervisor over the phone that he had been terminated, and that his termination "was irreversible." This was the same day Dow had been approved for medical treatment by Lowe's insurance company.

According to D.A. Fox, Dow's injury should have given him 'good cause' for his work absence, and Lowe's company policy is not to terminate employees who have a workman's comp claim without contacting the regional HR director. The District Attorney's office concluded that the Lowe's supervisor acted in haste because he knew Dow had a prior spinal injury, "and it was going to be expensive for Lowe's and/or detrimental to [the supervisor's] young career to have to admit that."

The D.A. charges that the supervisor's statement to DFEH "proved false or misleading." Lowe's told investigators that they did not know of Dow's prior injury, yet Dow's application clearly states that he had been previously treated for back injury. Lowe's claims that Dow wrote "None" for any accommodations he needed---but D.A. Fox says "a careful look at the copy" shows that letters were superimposed over Dow's writing.

Dow says that the state investigator closed his case based on Lowe's misrepresentations. "DFEH has thrown me to the wolves. Even after receiving a report from the D.A., they refuse to reopen my case and they will not act until the D.A. files charges. It sickens me. The D.A.'S office is being met with fierce resistance from Lowe's."

After DFEH dropped the case, Dow hired a private attorney who filed a lawsuit in San Francisco Federal Court. The same forged document and the same lies by Lowe's were introduced. Because of this, Dow's attorney refused to go any further. In December of 2006, Lowe's filed a motion to force Dow to reimburse the company for legal fees of $130,678.50 under the DFEH statute. "I fell to the floor in tears when my wife showed me the motion," Dow says. Three weeks later, the court said Dow's case was not frivolous, and the Lowe's motion was denied.

Today Dow lives in Maine, but distance cannot separate him from his bitter six year battle with one of the largest retail corporations in the world. "To this day, I have been paying for my own therapy. Lowe's even knows I've tried to take my life and been hospitalized," Dow admits. "I had to go bankrupt as one stay in the hospital was $35,000. I had my rights stolen from me by means of fraud, lies and forged evidence."

The 43 year old Dow, who was a member of the plumbers union in Boston, feels like he has been boxing with dark shadows. "I don't know what to do or where to turn other than getting this out there, hoping that an attorney will take interest and help me get this case turned around. I've been trying to hold these agencies and Lowe's responsible for this deprivation of my constitutional rights---but I don't know what to do anymore."

Not counting his orientation period, Joe Dow worked for Lowe's approximately 16 days. He has been paying for it ever since. Recently Dow has taken some real estate and computer classes in Maine, and hopes to get a job with a local real estate office after the New Year. "I keep having nightmares that I am paralyzed and it brings on panic attacks that wake me up, and then my wife finds me crawling around the floor yelling for help. I just have to keep convincing myself that there will be justice."

In 2007, Dow's wife contacted an attorney with DFEH and provided enough evidence for them to request an investigation and prosecution against Lowe's with San Mateo County Counsel, who then referred the matter to the San Mateo District Attorney's office--where it remains today.

D.A. Fox indicated last week that his investigation into the Dow case is on-going. "I believe," the D.A. wrote, "that the facts support a conclusion that certain crimes have been committed in this case."

Al Norman is the founder of Sprawl-Busters. He has been writing about the dark side of big box stores for the past 17 years. He can be reached at info@sprawl-busters.com