Larry v. The Marion County Coal Company et al
Filing
146
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT MARION COUNTY COAL COMPANYS MOTION FOR SUMMARY JUDGMENT (DKT. NO. 75 ) AND GRANTING DEFENDANT MURRAY AMERICAN ENERGY, INC.S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77 ). The Court GRANTS in part and DENIES in part MCCs motion for summary judgment on Count One (Dkt. No. 75 ) and DISMISSES Larrys state law retaliation claim, WITH PREJUDICE, GRANTS MAEIs motion for summary judgment (Dkt. No. 77 ) and DIS MISSES Count Two, WITH PREJUDICE and GRANTS in part and DENIES in part MCCs motion for summary judgment on Count Three (Dkt. No. 75) and DISMISSES Larrys FMLA interference claim, WITH PREJUDICE. The Clerk is directed to enter a separate judgment order as to defendant Murray American Energy, Inc. Signed by Senior Judge Irene M. Keeley on 1/31/18. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALYSSA MOATE LARRY,
Plaintiff,
v.
CIVIL ACTION NO. 1:15CV212
(Judge Keeley)
THE MARION COUNTY COAL COMPANY,
and MURRAY AMERICAN ENERGY, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Plaintiff Alyssa Moate Larry (“Larry”) was terminated from her
employment at defendant The Marion County Coal Company (“MCC”), a
subsidiary of defendant Murray American Energy, Inc. (“MAEI), after
returning from maternity leave under the Family and Medical Leave
Act (“FMLA”). Larry alleges that, by selecting her for layoff, MCC
denied her rights under the FMLA, and discriminated and retaliated
against her on the basis of her sex and her pregnancy in violation
of the West Virginia Human Rights Act and the Pregnancy Workers’
Fairness Act. She further alleges that MAEI aided and abetted MCC
in engaging in unlawful discrimination and retaliation.
Pending before the Court are the defendants’ motions for
summary judgment. For the reasons that follow, the Court GRANTS in
part and DENIES in part MCC’s motion (Dkt. No. 75), and GRANTS
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
MAEI’s motion (Dkt. No. 77).
I. BACKGROUND
A.
Factual Background
1.
Larry’s Employment History with MCC
Beginning
in
September
2012,
Larry
was
employed
by
the
Consolidation Coal Company (“CCC”) as a Mine Clerk at its Loveridge
Mine located in Marion and Monongalia Counties, West Virginia (Dkt.
No. 75-1 at 4-5). Larry was then one of two Mine Clerks at the
Loveridge Mine, where, along with Human Resource Supervisor Pamela
Layton (“Layton”) and Human Resource Coordinator Ilya Shlyahovsky
(“Shlyahovsky”), she was one of the four employees who formed the
entirety of the Human Resources Department at the mine. Id. at 6.
On
December
15,
2013,
following
MAEI’s
purchase
of
the
Loveridge Mine, MCC assumed operation of the mine and renamed it
the Marion County Mine. Id. at 7-8. Larry, Layton, and the other
Human Resources staff members were all hired by MCC and continued
to work in their same positions. Id. at 8.
In February 2014, Shlyahovsky was promoted to the Human
Resource Supervisor position at another MAEI mine, and left his
Human Resource Coordinator position at the Marion County Mine. Id.
at 11. Layton encouraged Larry to apply for the position and
2
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
supported her candidacy with Paul Piccolini (“Piccolini”), the Vice
President of Human Resources and Employee Relations of Murray
Energy Corporation, a related entity that provides certain human
resource related services to MCC and other MAEI companies. Id. at
12-13; Dkt. No. 75-5 at 1.
With Piccolini’s approval, Larry was formally promoted to
Human Resource Coordinator at the Marion County Mine on March 31,
2014 (Dkt. No. 75-8 at 1). However, she continued to perform her
prior Mine Clerk duties, together with her new responsibilities,
until a new Mine Clerk was hired in July 2014 (Dkt. No. 75-2 at 36;
Dkt. No. 75-9 at 1).
In October 2014, Piccolini authorized the creation of a second
Human Resource Coordinator position at MCC, and also at each of
four other mines owned by MAEI (Dkt. No. 75-1 at 16; Dkt. No. 76-6
at 11; Dkt. No. 75-10 at 1). On December 15, 2014, MCC selected
Eric
Zuchowski
(“Zuchowski”)
for
the
second
Human
Resource
Coordinator position at the Marion County Mine (Dkt. No. 75-1 at
17; Dkt. No. 75-9 at 1). Like Larry, Zuchowski was promoted from
his prior position as a Mine Clerk, and continued to perform
certain of his prior Mine Clerk duties, as well as his new
responsibilities as Human Resource Coordinator, until a replacement
3
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Mine Clerk could be hired and trained. Zuchowski formally assumed
the second Coordinator position on April 27, 2015 (Dkt. No. 75-12).
2.
Larry’s Pregnancy-Related FMLA Leave and Accommodation
Following Leave
On February 6, 2015, Larry gave birth to a son (Dkt. No. 75-1
at 20). She sought and received FMLA-covered leave from February 6
until her return to work on March 23, 2015. Id. at 21.
Upon returning to work, Larry was required to express breast
milk using a mechanical pump three to four times each day, and
suggested to Layton that she be permitted to use a file closet
attached to their shared office for that purpose. Id. at 22-23.
Larry alleges that Layton responded “that wouldn’t be a good idea
in case someone was in the office.” Id. at 23. It was Larry’s sense
that Layton believed that it would be inconvenient for Larry to use
the office closet, where salaried employee files were kept. Id. As
a result, Larry began taking her lactation breaks in the women’s
restroom. Id. at 24.
3.
MCC’s Reductions in Force and Larry’s Layoff
In May 2015, MCC decided to reduce production at the Marion
County Mine from seven to five days per week due to poor coal
market conditions (Dkt. No. 75-2 at 5). A corresponding reduction
4
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
in force resulted in layoffs of approximately 180 hourly workers,
as well as 34 salaried employees (Dkt. No. 75-9 at 2). Within the
Human Resources Department, Layton was required to reduce her fourperson staff by one member (Dkt. No. 75-2 at 6). Layton decided to
eliminate one of the two Human Resource Coordinator positions, and
ultimately selected Larry as the Coordinator to be laid off. Id. at
13, 17. Larry was notified of her layoff on May 28, 2015 (Dkt. No.
75-1 at 33; Dkt. No. 75-16).
At the time of Larry’s layoff from MCC, Shlyahovsky, her
predecessor, was employed as the Human Resource Supervisor at an
MAEI sister mine, The Monongalia County Coal Company (Dkt. No. 75-2
at 27). In July 2015, approximately two months after Larry’s
layoff, Shlyahovsky was transferred back to the Marion County Mine
and demoted to the position of Human Resource Coordinator there
(Dkt. No. 75-2 at 26-27; Dkt. No. 76-5 at 9-10). Shlyahovsky
remained in that position for approximately three months, when he
then was reassigned elsewhere (Dkt. No. 75-18 at 2). Shlyahovsky
ultimately was laid off in a December 2015 reduction in force (Dkt.
No. 75-6 at 10; Dkt. No. 75-19 at 1).
B. Procedural Background
On October 20, 2015, Larry sued MCC in the Circuit Court of
5
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Monongalia County, West Virginia (Dkt. No. 1-2), asserting claims
of (1) sex discrimination in violation of the West Virginia Human
Rights Act, W. Va. Code §§ 5-11-1, et seq. (“HRA”); (2) pregnancy
discrimination in violation of the West Virginia Pregnant Workers’
Fairness Act, W. Va. Code §§ 5-11B-1, et seq. (“PWFA”); (3)
retaliation in violation of the HRA and PWFA; and (4) interference
with her rights and retaliation in violation of the Family and
Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”). Id. at 4-6.
She also sued MAEI for aiding and abetting MCC in engaging in
unlawful
sex
discrimination,
pregnancy
discrimination,
and
retaliation in violation of the HRA and PWFA. Id. at 4-5. On
November 10, 2015, the defendants removed the case to this Court
(Dkt. No. 1).
On January 9, 2017, the Court stayed the case pending receipt
of answers to two questions certified to the Supreme Court of
Appeals of West Virginia, which bore directly on the potential
damages available in Larry’s case (Dkt. No. 94). See Martinez v.
Asplundh Tree Expert Co., 803 S.E.2d 582 (W. Va. 2017). After
receiving
the
answers
to
the
certified
questions,
the
Court
conducted a conference with the parties on July 26, 2017, to
discuss the status of the case (Dkt. No. 97). After the Supreme
6
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Court of Appeals of West Virginia entered the mandate in Martinez,
Larry filed a motion to lift the stay in this case, which the Court
granted on November 1, 2017. Now pending are the defendants’
motions for summary judgment, which are fully briefed and ripe for
disposition.
II. STANDARD OF REVIEW
Summary
judgment
is
appropriate
only
“if
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
its truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
and
of
establishing
the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
7
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
trier
of
fact
could
reasonably find for the nonmoving party. Id. at 248–52.
III. DISCUSSION
A.
State Law Discrimination Claims Against MCC
In Count One of the complaint, Larry contends that MCC’s
decision to select her for layoff was substantially motivated by
her sex and her pregnancy, which constitute violations of the West
Virginia Human Rights Act and the Pregnant Workers’ Fairness Act
(Dkt. No. 1-1 at 4).
1.
Sex and Pregnancy Discrimination Under the HRA and PWFA
The West Virginia Human Rights Act (“HRA”), W. Va. Code §§ 511-1, et seq., prohibits employers from discriminating against any
individual with respect to “compensation, hire, tenure, terms,
conditions or privileges of employment.” W. Va. Code § 5-11-9(c).
Discrimination “means to exclude from, or fail or refuse to extend
8
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
to, a person equal opportunities because of . . . sex . . . .”
W.
Va. Code § 5-11-3(h).
The Supreme Court of Appeals of West Virginia has long
recognized that discrimination based upon pregnancy constitutes sex
discrimination under the HRA. See, e.g., Syl. pt. 1, Montgomery
Gen. Hosp. v. W. Va. Human Rights Comm’n, 346 S.E.2d 557, 559 (W.
Va. 1986)(“Discrimination based upon pregnancy constitutes illegal
sex discrimination under the West Virginia Human Rights Act, W. Va.
Code 5-11-9(a)[1981].”)(quoting Syl. pt. 2, Frank’s Shoe Store v.
W. Va. Human Rights Comm’n, 365 S.E.2d 251, 258 (W. Va. 1986)). In
2014,
the
West
Virginia
Legislature
codified
the
protections
afforded to pregnant employees with the adoption of the Pregnant
Workers’ Fairness Act (“PWFA”), W. Va. Code §§ 5-11B-1, et seq.,
which explicitly requires employers to reasonably accommodate their
employees’ “known limitations related to pregnancy, childbirth, or
related medical conditions,” including lactation. W. Va. Code § 511B-2(1); W. Va. C.S.R. § 77-10-2.
Discrimination claims brought under the HRA are governed by
the burden-shifting framework of Title VII of the Civil Rights Act
of 1964, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). See Shepherdstown Volunteer Fire Dep’t v. State
9
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
ex rel. State of W. Va. Human Rights Comm’n, 309 S.E.2d 342, 352
(W. Va. 1983)(reaffirming use of the McDonnell Douglas standard in
West Virginia). The PWFA provides that the procedures and remedies
regarding unlawful employment practices in violation of the Act are
the same as those for the HRA. W. Va. Code. § 5-11B-3.
Despite the fact that Larry has alleged separate claims for
sex discrimination under the HRA and pregnancy discrimination under
the PWFA, both claims are premised on the same allegation that
MCC’s decision to select her for layoff was substantially motivated
by her recent pregnancy leave and ongoing lactation breaks, and
thus
ultimately
are
grounded
in
the
same
set
of
facts
and
circumstances. And, as discussed, pregnancy discrimination clearly
constitutes sex discrimination under the HRA, and the procedures
and remedies regarding violations of the HRA and PWFA are the same.
Therefore, for the purposes of MCC’s motion, the Court will apply
the same analytical framework to determine whether Larry’s claims
under the HRA and PWFA survive summary judgment.
2.
Applicable Prima Facie Formulation and Burden-Shifting
Framework
In order to set forth a prima facie case of impermissible
employment discrimination under the HRA or PWFA, a plaintiff must
10
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
establish the following: (1) that she is a member of a protected
class; (2) that the employer made an adverse employment decision
affecting her; and (3) that, but for her protected status, the
employer would not have made the adverse decision. Syl. pt. 3,
Conaway v. E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va.
1986). In establishing the third element of the prima facie case,
the plaintiff must “show some evidence which would sufficiently
link the employer’s decision and the plaintiff’s status as a member
of a protected class so as to give rise to an inference that the
employment
decision
was
based
on
an
illegal
discriminatory
criterion.” Id. at 429-30. The plaintiff can establish this link by
any of the following methods: (1) an admission from the employer,
(2) unequal or disparate treatment between members of the protected
class and others, (3) the elimination of legitimate reasons for the
decision, or (4) statistics showing that members of the protected
class receive substantially worse treatment than others. Id. at
430.
While acknowledging that the prima facie case set forth in
Conaway applies to the large majority of discriminatory discharge
claims under the HRA, MCC argues that a different formulation
applies here because Larry was terminated as part of a larger
11
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
reduction in force (“RIF”) at the Marion County Mine.
In the context of larger RIFs, the Fourth Circuit has applied
a modified prima facie case formulation, requiring the plaintiff to
establish: (1) that she was within the protected category; (2) that
she was selected from a larger group of candidates; (3) that she
was performing at a level substantially equivalent to the lowest
level in the group retained; and (4) that the process of selection
produced a residual work force that contained some unprotected
persons who were performing at a level lower than that at which the
plaintiff was performing. Corti v. Storage Tech. Corp., 304 F.3d
336, n. 6 (4th Cir. 2002).
Although it appears that the Supreme Court of Appeals of West
Virginia has not yet been presented with the specific opportunity
to adopt the RIF test in Corti, the Court need not decide that
issue here. Although the May 2015 reduction in force at the Marion
County
Mine
resulted
in
the
layoff
of
thirty-four
salaried
employees, including Larry, the record is clear that only one
position was eliminated from the Human Resource Department, and
that the employee group from which Larry was chosen consisted of,
at best, Larry, fellow Human Resource Coordinator Zuchowski, and
the two Mine Clerks. It is undisputed that Zuchowski was retained
12
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
in the remaining Coordinator position.
Given these facts, the Court is not persuaded that this case
is properly characterized as a typical reduction-in-force suit, or
that the elements of the modified RIF test are applicable. See,
e.g., O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542,
546 (4th Cir. 1995), reversed on other grounds, 517 U.S. 308
(1996)(questioning applicability of RIF prima facie formulation
where the reduced “force” consisted of two people, and although the
plaintiff’s position was eliminated, he was essentially replaced by
another employee).
Rather,
because
“the
complexities
and
difficulties
of
determining what employee was replaced by whom in the typical mass
layoff case is simply not an issue here,” the Court will analyze
Larry’s claims of sex and pregnancy discrimination using the
traditional prima facie formulation. O’Connor, 56 F.3d at 546.
Under Conaway, once the plaintiff establishes a prima facie case,
the burden shifts to the employer to advance a non-discriminatory
reason for the plaintiff’s dismissal. Conaway, 358 S.E.2d at 430.
“The reason need not be a particularly good one. It need not be one
which the judge or jury would have acted upon. The reason can be
any other reason except that the plaintiff was a member of a
13
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
protected class.” Id.
After the employer explains its decision, the employee may
rebut the employer’s legitimate, non-discriminatory reason. Id.
The burden then shifts back to the plaintiff to prove that the
facially legitimate reason given by the employer for the employment
decision was merely a pretext for a discriminatory motive. Eddy v.
Biddle, No. 1:11CV137, 2013 WL 66929, at *6 (N.D.W. Va. Jan. 4,
2013) (quoting Ford Motor Credit Co. v. W. Va. Human Rights Comm’n,
696 S.E.2d 282, 293 (W. Va. 2010)) (internal quotation marks
omitted). At that point, “the issue of whether the plaintiff [has]
established a prima facie case . . . [becomes] irrelevant.” Skaggs
v. Elk Run Coal Co., Inc., 479 S.E.2d 561, 583 (W. Va. 1996). “To
get to the jury, the employee must offer sufficient evidence that
the employer’s explanation was pretextual to create an issue of
fact.” Id.
3.
Analysis
Under the Conaway framework, the first step in the Court’s
analysis is to determine whether Larry has sufficient prima facie
evidence of sex and pregnancy discrimination to survive summary
judgment. She has clearly established the first two elements of her
claim: She is a female, and accordingly, a member of the protected
14
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
class; further, MCC made an adverse employment decision when it
terminated her as a Human Resource Coordinator at the Marion County
Coal Mine in May 2015. At issue is the third prong of Larry’s prima
facie case. MCC argues that Larry has failed to present any
evidence of a nexus between her termination and her sex, pregnancy,
or pregnancy-related accommodations (Dkt. No. 87 at 9). Larry
contends,
however,
that
MCC’s
decision
to
terminate
her
was
“contaminated” by her recent pregnancy leave and ongoing lactation
breaks (Dkt. No. 84 at 1).
To establish the third prong of her prima facie case, Larry is
required only “to show some evidence which would sufficiently link
the employer's decision and the plaintiff's status as a member of
a protected class so as to give rise to an inference that the
employment
decision
was
based
on
an
illegal
discriminatory
criterion.” Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 161
(W. Va. 1995), holding modified by Dodrill v. Nationwide Mut. Ins.
Co., 491 S.E.2d 1 (1996)(citing Conaway, 358 S.E.3d at 429-30). In
other words, the third prong is “merely a threshold inquiry,”
requiring only that Larry establish an inference of discrimination.
Id.
Here, sufficient facts exist to permit a rational finder of
15
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
fact to infer a discriminatory motive. After being promoted to
Human Resource Coordinator in March 2014, Larry had received backto-back pay increases in October 2014 and January 2015 (Dkt. No.
84-1 at 92). A performance evaluation completed by Layton on
January 23, 2015--just two weeks before Larry went on maternity
leave--indicated Larry was “meeting expectations” in all categories
assessed (Dkt. No. 84-18). In the same evaluation, Layton reported
that Larry was “function[ing] very well in HR coordinator role.”
Id. Approximately two months after her return from maternity leave,
and during the time when she was taking lactation breaks at work,
however, Larry was chosen for layoff while a newly promoted male
Human
Resource
Coordinator,
who
had
obviously
neither
taken
maternity leave nor required lactation breaks, was retained in the
position. Thus viewed, Larry has satisfied the “threshold inquiry”
required under Conaway and Barefoot, and established a prima facie
case
of
sex
discrimination
under
the
HRA
and
pregnancy
discrimination under the PWFA.
The burden then shifts to MCC to establish a legitimate, nondiscriminatory reason for terminating Larry. MCC asserts that it
selected Larry for layoff because it no longer had confidence that
she would “carry out her duties professionally” and “maintain the
16
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
requisite confidentiality of the sensitive information entrusted to
her” as a Human Resource Coordinator (Dkt. No. 75 at 8). Layton
testified
that
she
believed
Larry
was
leaking
confidential
information to hourly employees and union officials (Dkt. No. 75-2
at 10-11). Although she denied divulging confidential information,
Larry admitted that she made personal telephone calls to other
employees
from
her
office,
during
which
she
discussed
both
“personal stuff” and “stuff going on in the mine” (Dkt. No. 75-1 at
42-43). Layton testified that, during one such call, she overheard
Larry
denigrating
Marion
County
Mine
Superintendent
Brian
Frederickson (“Frederickson”) and Assistant Superintendent Brandon
Laxton (“Laxton”), behavior Layton viewed as potentially causing
friction between hourly workers and management (Dkt. No. 75-2 at
12).
Laxton himself testified that, on multiple occasions, hourly
employees or union officials learned through leaked information
that disciplinary action was to be taken by mine management before
those decisions had been announced or could be implemented (Dkt.
No. 75-15 at 3-9). He further testified that, in each instance of
leaked human resource information, Larry was believed to be the
source. Id. Based on this, MCC has offered a legitimate, non17
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
discriminatory reason for terminating Larry. Conaway, 358 S.E.2d at
430.
Given that, Larry bears the burden of establishing that MCC’s
reason for terminating her was pretextual. Id. She argues that
MCC’s assertions that she was leaking confidential information are
“baseless” and were manufactured to cover up its discriminatory
motives for her layoff (Dkt. No. 84 at 2). For example, Laxton
testified that he believed Larry advised a union representative of
pending disciplinary measures against two hourly workers (Dkt. No.
75-15 at 3-4), but Larry cites evidence that the information
conveyed to the union representative was known by people other than
Larry, that the fax machines likely utilized in communicating the
information were in public work areas, and that the events occurred
after Larry had left work for the day (Dkt. No. 84-12 at 19-21;
Dkt. No. 84-1 at 27).
Laxton also testified about a second incident in which Larry
was the only person, other than Frederickson, whom he told about
the
hiring
of
25
contract
workers;
nevertheless,
the
union
representative found out about the plan (Dkt. No. 75-15 at 6-7).
Larry pointed out in response that Laxton admitted that the need
for
contractors
was
first
brought
18
to
his
attention
by
mine
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
employees, and that he did not tell Larry that the information was
confidential. Id. at 7-8.
Further, Layton testified that, other than counseling Larry
after
overhearing
Frederickson
and
confidentiality
the
telephone
Laxton,
concerns
she
with
her
call
had
about
never
(Dkt.
No.
Superintendents
discussed
84-4
at
any
23-24).
Tellingly, none of these concerns was mentioned in Larry’s January
2015 performance evaluation (Dkt. No. 84-18).
Larry
also
relies
on
evidence
that
Zuchowski,
the
male
employee retained as Human Resource Coordinator instead of Larry,
was less experienced in the role and may not have even been
considered for layoff in May 2015. Despite Layton’s testimony that
Zuchowski was among the candidates considered for layoff, the
“layoff list” generated by MCC did not include his name (Dkt. No.
84-4 at 15; Dkt. No. 84-9 at 1). And, while Zuchowski was permitted
to participate in meetings with Layton, Laxton, and other MCC
managers to discuss who would be laid off, Larry was not involved
in those meetings (Dkt. No. 84-4 at 6; Dkt. No. 84-1 at 38-39).
Finally, in an attempt to refute Larry’s evidence of pretext,
MCC argues that it is entitled to the “same actor” inference, that
arises when an employee “was hired and fired by the same person
19
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
within a relatively short time span.” Proud v. Stone, 945 F.2d 796,
798 (4th Cir. 1991). Where present, this fact “creates a strong
inference that the employer's stated reason for acting against the
employee is not pretextual.” Id. The record in this case, however,
gives rise to no such inference.
MCC contends that Layton was solely responsible for the
decisions to hire, promote, and terminate Larry. Larry disputes
that contention, however, asserting that the decision to terminate
her
was
made
jointly
by
Layton,
Frederick,
and
Laxton.
As
previously noted, Layton consulted with Frederickson and Laxton to
identify would be selected for layoff (Dkt. No. 84-4 at 6, 8).
Layton herself acknowledged that the decision to terminate Larry
was based on information provided by her “bosses,” Frederickson and
Laxton. Id. at 8.
On this record, a genuine issue of material fact exists as to
whether
Layton
can
be
wholly
credited
with
the
decision
to
terminate Larry, and thus whether the same actor inference should
apply. See Burgess v. Bowen, 466 Fed.Appx. 272, 280 n. 4 (4th Cir.
2012) (same actor inference is not appropriate where a factual
dispute exists over who made the termination decision); Constellium
Rolled Prod. Ravenswood, LLC v. Rogers, No. 2:15-cv-13438, 2017 WL
20
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
1552325, at *10 (S.D.W. Va. Apr. 28, 2017) (same). The Court
therefore declines to apply the same actor inference on summary
judgment.
Viewing the evidence in the light most favorable to Larry, as
it must (Providence, 211 F.3d 846 at 850), the Court concludes that
Larry
has
“offer[ed]
sufficient
evidence
that
the
employer’s
explanation was pretextual to create an issue of fact.” Skaggs, 479
S.E.2d at 583. The Court thus DENIES MCC’s motion for summary
judgment on Larry’s claims for sex discrimination under the HRA and
pregnancy discrimination under the PWFA.
B.
State Law Retaliation Claims Against MCC
In addition to claims of sex and pregnancy discrimination,
Larry
also
alleges
in
Count
One
that
MCC
terminated
her
in
retaliation for asserting her rights under West Virginia law, in
violation of the HRA and PWFA (Dkt. No. 1-1 at 4).
Under West Virginia law, Larry must establish the following
elements to state a prima facie claim for retaliatory discharge
under the HRA and PWFA: (1) she was engaging in protected activity;
(2) her employer was aware of the protected activity; (3) her
employer took adverse action against her; and (4) the adverse
action was retaliatory or, in the absence of such evidence, was
21
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
sufficiently temporally related to the protected activity to allow
an inference of retaliatory motive on the part of the employer.
Syl. pt. 10, Hanlon v. Chambers, 464 S.E.2d 741, 753 (W. Va.
1995)(citing Syl. pt. 1 Brammer v. Human Rights Comm’n, 394 S.E.2d
340 (1990)). Once Larry establishes her prima facie case, the
burden shifts to MCC to articulate a legitimate, non-discriminatory
reason for her termination. Cooper v. Norfolk and Western Ry. Co.,
870 F. Supp. 1410, 1418 (S.D.W. Va. 1994). Finally, Larry has the
opportunity to rebut MCC’s proffered reason as mere pretext. Id.
At issue is whether Larry engaged in a “protected activity”
within the meaning of the HRA or PWFA, the statutes upon which her
state law retaliation claims rest. Under the HRA, it is unlawful
for an employer to “[e]ngage in any form of reprisal or otherwise
discriminate
against
any
person
because
he
has
opposed
any
practices or acts forbidden under this article or because he has
filed a complaint, testified or assisted in any proceeding under
this article.” W. Va. Code § 5-11-9(7)(C). The PWFA contains
similar language prohibiting discrimination against an individual
who “has opposed any act or practice made unlawful by this article
or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
22
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
hearing under this article.” W. Va. Code
5-11B-3(b).
The Supreme Court of Appeals of West Virginia has interpreted
such protected activity to include “that which challenges any
practices or acts forbidden under” the statute. Hanlon, 464 at 753
(internal
quotations
omitted).
In
Hanlon,
the
Supreme
Court
explained that the HRA prohibits
an employer or other person from retaliating against any
individual for expressing opposition to a practice that
he or she reasonably and in good faith believes violates
the provisions of the Human Rights Act. This standard has
both an objective and a subjective element. The
employee’s opposition must be reasonable in the sense
that it must be based on a set of facts and a legal
theory that are plausible. Further, the view must be
honestly held and be more than a cover for troublemaking.
Id. at 754 (emphasis added). It further commented that “[t]he
legislative purpose in including the anti-retaliation provision was
obviously to encourage people to come forward and expose unlawful
employment practices and to do so without fear of reprisal.” Id.
Citing Hanlon, the Supreme Court later applied the same
definition of protected activity:
Under Hanlon, “protected activity” includes opposition to
conduct that the plaintiff reasonably and in good faith
believes violates the provisions of the Human Rights Act.
Conrad v. ARA Szabo, 480 S.E.2d 801, 813 (W. Va. 1996). Thus, to
have engaged in “protected activity” under either the HRA or PWFA,
23
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Larry must have challenged or otherwise opposed MCC conduct that
she reasonably and in good faith believed unlawful under those
statutes.
Here, Larry has failed to establish that she engaged in any
such activity. It is clear her claim is grounded in the assertion
that MCC retaliated against her because of her maternity leave and
lactation breaks following her return to work. As to her pregnancyrelated leave, it is undisputed that Layton approved Larry’s claim
for maternity leave, and that Larry was granted every day of leave
she sought (Dkt. No. 75-1 at 21). Larry conceded that, to her
knowledge, neither Layton nor anyone in management complained or
otherwise made negative comments about that leave. Id.
As to her ongoing lactation breaks at work, it is also
undisputed that Larry was permitted as many breaks as she needed.
Id. at 28. She testified that, other than her initial discussion
with Layton regarding where she might perform that activity, there
was no further discussion with Layton or anyone else regarding the
issue
(id.
at
24-25,
28),
and
she
requested
no
alternate
accommodation. Id. at 31.
Because Larry has not demonstrated that she engaged in a
protected activity within the meaning of the HRA or PWFA, she has
24
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
failed to establish a prima facie case of retaliation under either
statute. Accordingly, the Court GRANTS MCC’s motion for summary
judgment on Larry’s state law claims for retaliation.
C.
FMLA Claims Against MCC
1.
Interference
In Count Three of the complaint, Larry alleges that, by laying
her off, MCC knowingly interfered with the exercise of her FMLA
rights (Dkt. No. 1-1). After MCC moved for summary judgment, Larry
withdrew her interference claim (Dkt. No. 84 at 23). The Court
therefore GRANTS MCC’s motion for summary judgment on Larry’s claim
for interference under the FMLA.
2.
Retaliation
Although she has abandoned her interference claim, Larry
maintains that her layoff constituted unlawful retaliation under
the FMLA.
Under 29 U.S.C. § 2615(a)(2), employers may not retaliate
against employees for exercising rights under the FMLA. See Dotson
v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009) Much like claims
brought under Title VII, under the FMLA, a plaintiff “must prove
three elements to establish a prima facie case of retaliation: (1)
she engaged in protected activity, (2) her employer took an adverse
25
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
employment action against her, and (3) there was a causal link
between the two events.” Adams v. Anne Arundel Cty. Public Schools,
789 F.3d 422, 429 (4th Cir. 2015) (internal quotation omitted)
(quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281
(4th Cir. 2015) (en banc)). If, in response, the employer “advances
a lawful explanation for the alleged retaliatory action,” id., the
plaintiff “bears the burden of establishing that the employer’s
proffered explanation is pretext for FMLA retaliation.” Vannoy v.
Fed. Reserve Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016).
Here, Larry has established a prima facie case of retaliation.
First, it is undisputed that she engaged in a protected activity by
taking FMLA leave. Second, it is undisputed that MCC terminated her
employment. Third, because Larry was terminated a mere two months
after returning to work from FMLA leave, the “close temporal
proximity between activity protected by the statute and adverse
employment action” demonstrates causation. Waag v. Sotera Defense
Solutions, Inc., 857 F.3d 179, 192 (4th Cir. 2017); see also
Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551 (4th Cir.
2006).
In response, MCC has advanced the “lawful explanation” that it
terminated Larry because it “no longer had confidence that [she]
26
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
would carry out her duties professionally and maintain the requisite
confidentiality of the sensitive information entrusted to her” (Dkt.
No. 75 at 8). Therefore, to survive summary judgment, Larry bears
the burden to demonstrate that a material dispute exists as to
whether this explanation is merely pretextual. Vannoy, 827 F.3d at
304.
Of course, “[t]he FMLA does not prevent an employer from
terminating
an
employee
for
poor
performance,
misconduct,
or
insubordinate behavior.” Id. at 304-05. As acknowledged above, MCC
has
offered
evidence
that
its
decision
resulted
from
Larry’s
perceived inability to maintain the confidentiality of sensitive
information, but the parties dispute whether MCC actually relied on
these alleged confidentiality concerns in selecting Larry for
layoff. While the law does not prevent MCC from terminating sub-par
employees as it sees fit, Laing v. Fed. Express Corp., 703 F.3d 713,
722 (4th Cir. 2013), the law does prohibit it from basing such
decision on the exercise of a protected right. For the reasons
previously discussed, most notably the disputed evidence regarding
the alleged leaks of confidential information at the mine, as well
as Zuchowski’s involvement in the selection of employees for layoff
and
his
subsequent
retention
in
27
the
role
of
Human
Resource
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Coordinator, a reasonable jury could infer from the record that
MCC’s lawful explanation for Larry’s layoff is merely pretextual.
The Court therefore DENIES MCC’s motion for summary judgment on
Larry’s claim for retaliation under the FMLA.
D.
State Law Aiding and Abetting Claim Against MAEI
MAEI has moved for summary judgment on Larry’s sole claim that
it aided and abetted MCC in engaging in unlawful discrimination and
retaliation against her “by assisting in selecting Larry for layoff
and/or by transferring a male employee from another of its mines to
replace [her],” in violation of the HRA and PWFA (Dkt. No. 1-1 at
5).
The HRA provides for a cause of action against individuals who
aid or abet an unlawful discriminatory act. Holsten v. Norandex,
Inc., 461 S.E.2d 473 (1995). The HRA provides, in relevant part,
that it shall be an unlawful discriminatory practice
(7) For any person, employer, employment agency, labor
organization, owner, real estate broker, real estate
salesman or financial institution to1:
(A) ... aid, abet, incite, compel or coerce any
person
to
engage
in
any
of
the
unlawful
discriminatory practices defined in this section.
1
It is undisputed that MAEI qualifies as a “person” against whom
an aiding and abetting action may be filed under the HRA.
28
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
W.
Va.
Code
§
5-11-9(7).
As
discussed
earlier,
the
PWFA
incorporates the remedies available under the HRA. W. Va. Code § 511B-3(a).
As an initial matter, the parties dispute the meaning of the
terms “aid” and “abet,” which the HRA does not define. Because this
court sits in diversity on Larry’s state law claims, it must apply
West Virginia state substantive law. Erie R.R. Co. v. Thompkins,
304 U.S. 64, 78 (1938). Further, it “must apply state law as it
presently exists and may not suggest or surmise its expansion.”
McDaniel v. Travels Prop. Cas. Ins. Co., 121 F.Supp 2d 508, 512
(N.D.W. Va. 2000)(citing Wells v. Liddy, 186 F.3d 505, 521 (4th
Cir. 1991)).
Where, as here, there is no relevant West Virginia state
substantive law defining the terms “aid” and “abet,” this Court
must predict how West Virginia state courts would decide the
question. Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 1994). In
predicting how West Virginia state courts would do so, the Court
must not expand upon the laws of West Virginia. Wade v. Danek Med.,
Inc., 182 F.3d 281, 286 (4th Cir. 1999)(citing St. Paul Fire &
Marine Ins. Co. v. Jacobson, 48 F.3d 778, 783 (4th Cir. 1995)).
Consequently, “[t]he determination of the intent of the Legislature
29
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
of the State of West Virginia is solely within the province of the
West Virginia Supreme Court of Appeals and its subordinate courts,
not with the federal courts. It is not the role of the judiciary to
contradict the state courts on their law.” Jones v. Painter, 140
F.Supp.2d 677, 679 (N.D.W. Va. 2001).
Although the Supreme Court of Appeals of West Virginia has not
construed “aiding and abetting” specifically within the context of
the HRA, other state courts and federal courts of appeals that have
addressed the applicable legal standard for aiding-and-abetting
claims under similar state statutes have adopted and applied the
Restatement (Second) of Torts § 876(b). See, e.g., Ellison v.
Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1077
(Alaska
2005)(applying
Restatement
§
876(b)
when
construing
provision that “[i]t is unlawful for a person to aid, abet, incite,
compel, or coerce the doing of a[n unlawful discriminatory] act”);
Tarr
v.
Ciasulli,
853
A.2d
921,
928-29
(N.J.
2004)(applying
Restatement when construing provision that it is unlawful “[f]or
any person, whether an employer or an employee or not, to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden”
under
Failla
City
v.
the
of
New
Jersey
Passaic,
146
30
Law
Against
F.3d
149,
Discrimination);
157-58
(3d
Cir.
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
1998)(adopting Restatement standard in the context of employment
discrimination and predicting that the New Jersey Supreme Court
would do the same).
Further, although not in a common law cause of action for
aiding and abetting, West Virginia’s highest court has previously
applied the Restatement standard in the civil context, holding that
“[f]or harm resulting to a third person from the tortious conduct
of another, one is subject to liability if he knows that the
other's conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself.”
Syl. pt. 2, Barath v. Performance Trucking Co., 424 S.E.2d 602, 603
(W. Va. 1992); Syl pt. 5, Courtney v. Courtney, 413 S.E.2d 418, 420
(W. Va. 1991)(citing Restatement (Second) of Torts § 876(b)).
Based on the consistent application by other courts of the
Restatement (Second) § 876(b) to aiding-and-abetting claims under
similar statutes, as well as West Virginia’s own application of the
standard in other civil causes of action, this Court is persuaded
that West Virginia would apply § 876(b) of the Restatement (Second)
of Torts when a construing a claim for aiding and abetting under
the HRA.
Here, pursuant to § 876(b), Larry contends that MAEI knew that
31
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
MCC’s
layoff
of
Larry
was
discriminatory,
and
that
it
gave
“substantial assistance or encouragement” to MCC in accomplishing
that discrimination. MAEI refutes this, arguing that it was “in no
way involved in the development of procedures or criteria used by
MCC
in
connection
with
its
determination
of
which
salaried
employees would be laid off as part of the May 2015 reduction in
force,” and that it did not participate in MCC’s decision to select
Larry for layoff (Dkt. No. 78 at 5). As discussed, § 876(b)
concludes that aiding and abetting liability occurs when the actor
“knows the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other.” Larry has
not satisfied that standard.
Notably, Larry does not specifically allege that MAEI “knew”
that MCC had discriminated against her, as required by § 876(b).
Rather, she alleges that MAEI did not sufficiently “question” or
review MCC’s decisionmaking process in selecting Larry for layoff
(Dkt.
No.
85
at
13).
This
does
not
amount
to
“substantial
encouragement or assistance.” See, e.g., Failla, 146 F.3d at 159
(“Employees are not liable as aider and abetter merely because they
had some role, or knowledge or involvement. Rather the degree of
involvement, knowledge and culpability required as a basis for
32
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
liability is heightened by the standard that the Restatement sets
forth and we adopt. Only those employees who meet this heightened
standard will be aiders and abettors.”); Ellison, 118 P.3d at 107778 (“We look to the Restatement (Second) of Torts for guidance,
which other courts have adopted in interpreting state statutes on
aiding and abetting discrimination . . . Ellison has made no
attempt to satisfy this standard. She points out that the stewards
had knowledge of discriminatory actions and did not report them,
but
this
does
not
amount
to
‘substantial
encouragement
or
assistance.’”).
The other evidence on which Larry relies in support of her
aiding and abetting claim is MAEI’s transfer of Shylahovsky to the
Marion County Mine within two months of her layoff. While MAEI
concedes that it made the decision to demote Shlyahovsky and
transfer him back to the Marion County Mine as a Human Resource
Coordinator, it contends that the decision to select Larry for
layoff in May 2015 was made unilaterally by Layton, without any
input or approval from MAEI. Id. As discussed earlier, genuine
issues of material fact exist as to who made the decision to select
Larry for layoff. Those disputed issues of fact, however, relate to
who
among
MCC
personnel
and
33
management–-namely,
Layton,
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
Frederickson,
and
Laxton--were
the
decision
makers
regarding
Larry’s layoff.
Contrary to Larry’s contention that MAEI was involved in MCC’s
decision, Piccolini testified that, while he ultimately receives
and “reviews” layoff lists generated at MAEI mines, he does not
“evaluate” the lists because, in his role as Vice President of
Human
Resources
and
Employee
Relations
of
Murray
Energy
Corporation, he has “no knowledge of” various mine employees’ work
performance and therefore relies upon personnel at each mine to
make those evaluations (Dkt. No. 77-3 at 13-14). He further
testified that layoff lists are generally sent to him for the
purpose of “keep[ing] [him] apprised of what’s happening at the
mine level,” id. at 13, and that in the case of the layoff list at
issue here, he was not aware that Larry had been selected for
layoff until he “received the final listing of everybody who was
involved” in the reduction. Id. at 14. Further, Piccolini’s only
prior involvement with Larry’s employment at MCC was his 2014
approval of her promotion to Human Resource Coordinator and the
accompanying increase in her salary.
Even when the evidence is viewed in the light most favorable
to Larry, no genuine issues of material fact exist regarding MAEI’s
34
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
involvement in the decision to lay off Larry, and a reasonable jury
could not find that MAEI was a decision maker regarding both
Larry’s layoff and Shylavoksky’s transfer back to the Marion County
Mine. For these reasons, the evidence is insufficient for Larry to
establish a claim for aiding and abetting discrimination against
MAEI. Furthermore, because the Court has granted MCC’s motion for
summary judgment on Larry’s claim for retaliation under the HRA,
Larry cannot maintain a claim against MAEI for aiding and abetting
such retaliation. The Court therefore GRANTS MAEI’s motion for
summary judgment.
IV. CONCLUSION
For the reasons discussed, the Court:
!
GRANTS in part and DENIES in part MCC’s motion for
summary judgment on Count One (Dkt. No. 75) and DISMISSES
Larry’s state law retaliation claim, WITH PREJUDICE;
!
GRANTS MAEI’s motion for summary judgment (Dkt. No. 77)
and DISMISSES Count Two, WITH PREJUDICE; and
!
GRANTS in part and DENIES in part MCC’s motion for
summary
judgment
DISMISSES
on
Larry’s
Count
FMLA
PREJUDICE.
35
Three
(Dkt.
interference
No.
75)
claim,
and
WITH
LARRY v. MARION COUNTY COAL, ET AL.
1:15CV212
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 77)
The case will proceed to trial as scheduled as to defendant
MCC on Larry’s claims of sex discrimination in violation of the HRA
(Count One), pregnancy discrimination in violation of the PWFA
(Count One), and retaliation in violation of the FMLA (Count
Three).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to enter a separate judgment order with
respect to defendant Murray American Energy, Inc.
DATED: January 31, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
36
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