Cumpston v. Central Supply Company of West Virginia et al
Filing
113
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80 ), AND GRANTING PLAINTIFF's MOTION TO DISMISS COUNT SIX (DKT. NO. 79 ): The Court GRANTS Cumpston's motion to dismiss Count Six of the Complai nt (Dkt. No. 79 ) and DISMISSES Count Six WITH PREJUDICE; and GRANTS the defendants' motion for summary judgment (Dkt. No. 80 ) and DISMISSES the Complaint WITH PREJUDICE. The Court DIRECTS the Clerk to transmit copies of this Order to counsel of record and enter a separate judgment order in favor of the defendants Central Supply Company of West Virginia and Patrick Scott Tucker. Signed by Senior Judge Irene M. Keeley on 10/5/2018. (wrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY CUMPSTON,
Plaintiff,
v.
CIVIL ACTION NO. 1:17CV61
(Judge Keeley)
CENTRAL SUPPLY COMPANY OF WEST
VIRGINIA and PATRICK SCOTT TUCKER,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
The plaintiff, Timothy Cumpston (“Cumpston”), was terminated
from his employment at the defendant, Central Supply Company of
West Virginia (“Central Supply”), one day after requesting six to
eight weeks of medical leave to recover from a necessary surgery.
Cumpston alleges that Central Supply and the defendant, Patrick
Scott Tucker (“Tucker”) (collectively, “the defendants”), violated
the Family and Medical Leave Act by terminating him. He further
alleges that the defendants discriminated and retaliated against
him because of his need for surgery and time to recover. He also
alleges that the defendants denied him wages for paid time off he
had accumulated, acted in an outrageous manner, and retaliated
against him for applying for short-term disability benefits.
Pending is the defendants’ motion for summary judgment (Dkt.
No. 80) and Cumpston’s motion to dismiss count six (Dkt. No. 79).
For the reasons that follow, the Court GRANTS the motions and
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
DISMISSES the Complaint WITH PREJUDICE.
I. BACKGROUND
A.
The Facts
As it must, the Court recites the facts in the light most
favorable to the non-moving party. See Providence Square Assocs.,
L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).
1.
Cumpston’s Employment History with Central Supply
In 1982, Cumpston began working for Central Supply, which
produces and supplies “ready mix” concrete and other building
materials throughout the state of West Virginia (Dkt. No. 80-3 at
13-14). Cumpston left Central Supply in 1989, but returned in 1994
and worked as a “boom truck” driver in Central Supply’s building
supply division until his termination on August 19, 2016 (Dkt. Nos.
82 at 1, 82-1). As a boom truck driver, Cumpston was responsible
for loading, securing, and delivering orders of block, stone,
brick,
masonry,
gravel,
or
other
building
supplies
to
both
commercial and residential customers (Dkt. No. 80-3 at 19-20).
During that time, Tucker, who was the Operations Manager for
Central Supply’s building supply division, served as Cumpston’s
direct supervisor. Id. at 2. Tucker in turn reported directly to
Dwayne McCartney (“McCartney”), the President of Central Supply
2
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
(Dkt. Nos. 81 at 2, 82-6 at 3).
After returning to Central Supply in 1994, Cumpston was
involved in seven safety-related incidents as a boom truck driver,
all of which occurred after 2006 (Dkt. Nos. 80-4, 80-5, 80-6, 80-7,
80-8,
80-9,
80-10).
Although
some
of
these
incidents
were
preventable or resulted in significant damage to company property,
the only punishment Cumpston ever received was a one-day suspension
without pay (Dkt. No. 80-6).
During
his
employment,
Cumpston
struggled
with
Crohn’s
disease. When Cumpston advised Central Supply of his struggle, it
conditionally
granted
him
intermittent
leave
under
the
FMLA,
allowing him to take FMLA leave without having a doctor pre-certify
the leave’s medical necessity (Dkt. Nos. 80-1 at 16-17, 82-4). This
intermittent leave allowed Cumpston to take time off work when he
was suffering from “flare ups” (Dkt. No. 80-1 at 17-18). For the
next two years, Cumpston continued to work for Central Supply
without repercussion (Dkt. No. 80-1 at 16-18).
2.
Cumpston’s 2016 Request for FMLA Leave
On August 18, 2016, Cumpston was diagnosed with diverticulitis
and told he needed to have surgery on September 7, 2016, to treat
it (Dkt. Nos. 80-1 at 19-20, 80-14). He also learned that he would
3
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
need six to eight weeks off work to recover from the surgery (Dkt.
No. 80-14). Cumpston immediately informed Tucker about his need for
surgery and medical leave (Dkt. No. 80-1 at 19-20).
3.
Central Supply’s
Termination
Reduction
in
Force
and Cumpston’s
Tucker relayed this information via email to Central Supply’s
human resources manager, Beth Nuzum (“Nuzum”) (Dkt. No. 80-14).
Upon receiving Tucker’s email, Nuzum immediately recognized that
Cumpston was among those employees slated to be terminated by
Central Supply in a reduction in force (“RIF”) scheduled to be
announced the next day, August 19, 2016 (Dkt. No. 80-14). After
confirming
with
Heather
Harper,
Deputy
General
Counsel
of
Oldcastle, Inc. (Central Supply’s parent company), that the planned
RIF was well documented, Nuzum terminated Cumpston, offering him a
severance package, which included $3,740.00 and 4 months of COBRA
health insurance coverage (Dkt. Nos. 80-1 at 31-32, 80-13 at 3, 8014).
It is undisputed that Central Supply had drafted his severance
agreement and had it ready to deliver no later than August 16,
2016——two days before Tucker and Nuzum learned of Cumpston’s need
for surgery (Dkt. No. 80-13). The RIF had been long in the making.
4
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
In early 2016, McCartney, Central Supply’s President, had realized
that a RIF might be necessary if Central Supply’s building supply
division continued to experience a decline in business (Dkt. No.
80-3 at 6-8, 25-26). Discussions about a RIF continued throughout
2016, until on August 11th, McCartney made the decision to proceed
with the RIF during a conference call with Harper and Nuzum. Id. at
6-8, 9-10. By then, Central Supply had already determined which
employees would be terminated should there be a RIF. Id. at 10-11,
25. These employees were selected following a comprehensive review
of all employees working in the building supply division. Id. at 45. In all, Central Supply terminated three employees: a boom truck
driver (Cumpston), a fork lift operator, and an administrative
assistant (Dkt. Nos. 80-3 at 6, 80-13). Although Cumpston had more
experience than the other boom truck drivers, according to Central
Supply, he was selected for termination because he had been
involved in more safety-related incidents than the other drivers
(Dkt. Nos. 80-3 at 12, 80-4, 80-5, 80-6, 80-7, 80-8, 80-9, 80-10).
B. Procedural History
In March 2017, Cumpston sued the defendants in the Circuit
Court of Harrison County, West Virginia (Dkt. No. 1-1 ), alleging
(1) violation of the Family and Medical Leave Act, 29 U.S.C. §§
5
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
2601, et seq. (“FMLA”), (2) disability discrimination in violation
of the West Virginia Human Rights Act, W. Va. Code §§ 5-11B-1, et
seq. (“WVHRA”), (3) retaliatory discharge, (4) violation of the
West Virginia Wage Payment and Collection Act (“WVWPCA”), (5) tort
of outrage, and (6) short term disability insurance retaliation.
Id. at 6-8. In April 2017, the defendants removed the case to this
Court (Dkt. No. 1). It has been scheduled for trial beginning on
October 15, 2018 (Dkt. No. 11).
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, 211 F.3d at 850. 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
6
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Court
of
the
basis
for
the
motion
and
of
establishing
the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
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.
FMLA Retaliation Claim
In Count One of the complaint, Cumpston alleges that the
defendants
violated
the
FMLA
when
they
unlawfully
retaliated
against him by terminating his employment four days after being
notified of his need for surgery and corresponding medical leave
(Dkt. No. 1-1 at 6).1
1
Although Cumpston’s response opposing summary judgment suggests that he is
pursuing claims of both FMLA interference and FMLA retaliation, Count One of his
Complaint (which reads “Violation of FMLA”) only alleges a claim of FMLA
retaliation. But even if it were construed to allege a claim of FMLA
interference, that claim would fail for the same reasons that Cumpston’s
retaliation claim fails.
7
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
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). Such claims are
analyzed under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Cumpston,
therefore,
must
first
establish
a
prima
facie
case
of
FMLA
retaliation by proving three elements: (1) that he “engaged in
protected activity”; (2) that he suffered “an adverse employment
action”;
and
(3)
that
“there
was
a
causal
link
between
the
protected activity and the adverse employment action.” Mackey v.
Shalala, 360 F.3d 463, 469 (4th Cir. 2004). Once he establishes a
prima facie case, and if the defendants “offer[] a non-retaliatory
reason of the adverse action,” Cumpston “‘bears the burden of
establishing
that
the
[Defendants’]
proffered
explanation
is
pretext for FMLA retaliation.’” Vannoy v. Fed. Reserve Bank of
Richmond, 827 F.3d 296, 304 (4th Cir. 2016)(quoting Yashenko v.
Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)).
Accordingly, to survive summary judgment, Cumpston “‘must produce
sufficient evidence to create a genuine dispute of material fact
such that a reasonable factfinder could conclude the adverse
employment action was taken for an impermissible reason, i.e.,
8
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
retaliation.’” Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 192
(4th Cir. 2017) (quoting Sharif v. United Airlines, Inc., 841 F.3d
199, 203 (4th Cir. 2016)).
The defendants argue that Cumpston has not established a prima
facie case of retaliation because he can only establish the second
of the three prongs——that he suffered an adverse employment action
(Dkt. No. 81 at 9). They contend Cumpston was not engaged in a
protected activity when terminated, nor can he show any causal
connection between his protected activity and his termination. Id.
This argument is based on a fundamental misunderstanding of
the meaning of “prima facie,” which is defined as “[s]ufficient to
establish a fact or raise a presumption unless disproved or
rebutted; based on what seems to be true on first examination, even
though it ma[y] later be proved to be untrue.” Prima facie, Black’s
Law
Dictionary
(10th
ed.
2014).
Here,
Cumpston
notified
the
defendants of his need for surgery and corresponding medical leave
on Thursday, August 18, 2016 (Dkt. No. 80-1 at 19-20). On Monday,
August 22, 2016, he met with a representative from Human Resources,
and was terminated, effective Friday, August 19, 2016 (Dkt. Nos.
80-1 at 31-33, 80-13 at 3). These facts establish a prima facie
case of FMLA retaliation. First, Cumpston engaged in protected
9
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
activity when he notified Central Supply of his need for surgery
and corresponding medical leave, see Krenzke v. Alexandria Motor
Cars, Inc., 289 F. App’x 629, 632 (4th Cir. 2008); second, he
suffered an adverse employment action, see Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir.
1998), abrogated on other grounds by Burlington N. & Sante Fe Ry.
v. White, 548 U.S. 53, 68 (2006); and third, the temporal proximity
between his request for FMLA leave and his termination suggests a
causal link between the two, see Waag, 857 F.3d at 192.
Although the defendants point to evidence tending to disprove
Cumpston’s prima facie case (Dkt. No. 81 at 10-13), rebuttal
evidence does not preclude Cumpston from establishing a prima facie
case at the outset. Indeed, if it did, there would be no need for
the McDonnell Douglas burden-shifting framework. In short, Cumpston
has established a prima facie case of FMLA retaliation.
Once a plaintiff establishes a prima facie case, the burden
shifts to the defendant to “offer[] a non-retaliatory reason of the
adverse action . . . .” Vannoy, 827 F.3d at 304 (citation omitted).
The defendants insist that, instead of retaliating against him,
they terminated Cumpston in an economically-required RIF, which
Central Supply had decided to execute long before it knew of
10
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Cumpston’s need for FMLA leave (Dkt. No. 81 at 13-16). They contend
that he was specifically selected for inclusion in the RIF because
he
was
the
boom
truck
driver
with
the
most
safety-related
incidents. Id. at 14.
This explanation is confirmed by the undisputed evidence. In
his deposition, Cumpston concedes that the defendants did not know
about his need for surgery and corresponding medical leave until
August 18, 2016, the day he notified Tucker (Dkt. No. 80-1 at 1920). Central Supply, however, had decided to include Cumpston in
its RIF by August 11, 2016——at least seven days before Cumpston
requested FMLA leave (Dkt. No. 80-3 at 9-11). Indeed, the severance
agreements for each employee included in the RIF had been completed
and were ready for distribution by August 16, 2016, two days before
Cumpston requested FMLA leave (Dkt. No. 80-13). Additionally, there
is no dispute that Cumpston was the boom truck driver with the most
safety-related incidents (Dkt. Nos. 80-3 at 12, 80-4, 80-5, 80-6,
80-7, 80-8, 80-9, 80-10).
Because the defendants have satisfied their burden of offering
a
non-retaliatory
reason
for
the
adverse
employment
action,
Cumpston must show that Central Supply’s reason for terminating him
is
“pretext
for
FMLA
retaliation.”
11
Vannoy,
827
F.3d
at
304
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
(citation omitted). To do so, he must offer evidence that tends to
show that the defendants’ explanation is not credible, or that
retaliation is the most likely explanation. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
Based on the facts alleged in Cumpston’s Complaint, it is
factually impossible for the RIF to serve as pretext for FMLA
retaliation when he was selected for termination on August 11,
2016, when no one (including Cumpston) knew about his need for
surgery and time off work until August 18, 2016. Recognizing this
problem, Cumpston argues that the defendants retaliated against him
because they knew of his struggle with Crohn’s disease and that he
may need extended time off in the future (Dkt. No. 82 at 4-11). In
addition, he argues that Central Supply’s RIF was not economically
required
and,
therefore,
not
credible.
Both
arguments
are
unavailing.
First, there is no evidence from which a reasonable factfinder
could draw the inference that the defendants knew Cumpston “may
have needed extended time off prior to” terminating his employment
(Dkt. No. 82 at 6). Although Cumpston took FMLA leave in 2014
because of his struggle with Crohn’s disease, it is undisputed that
he took that leave without any repercussion for two years (Dkt. No.
12
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
80-1 at 16-18). This lapse in time negates any inference of
pretext. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th
Cir. 2015) (“[T]he causation standards for establishing a prima
facie retaliation case and proving pretext are not identical.
Rather, the burden for establishing causation at the prima facie
stage is ‘less onerous.’”); Dowe, 145 F.3d at 657 (“A lengthy time
lapse between the employer becoming aware of the protected activity
and the alleged adverse employment action, . . . negates any
inference that a causal connection exists between the two.”). And
a history of approving past requests for FMLA leave “is not the
record of a company that is historically hostile to FMLA leave in
any discernable way.” Sharif, 841 F.3d at 205.
Second, there is no evidence in the record to suggest that the
defendants knew that Cumpston had missed work in late July and
early August of 2016 for a colonoscopy and x-ray. Indeed, he only
submitted one “Return to Work Slip” that accounts for that period
of time, which states only that he missed work for an “appointment”
on July 25, 2016, and could return to work the following day (Dkt.
No. 82-2 at 12). A routine doctor’s note does not put an employer
on notice that its employee was having a certain procedure done, or
that he would need extended time off. See, e.g., Reeder v. Cty. of
13
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Wayne, 177 F. Supp. 3d 1059, 1071-72 (E.D. Mich. 2016) (“‘[A]
doctor's note that fails to state with specificity the condition
behind the prescribed leave or the treatment to be administered .
. . is insufficient on its own to provide notice to an employer of
the employee's request for FMLA leave.’” (quoting Festerman v. Cty.
of Wayne, 611 F. App’x 310, 315 (6th Cir. 2015))). Moreover, even
had the defendants known that Cumpston was scheduled to undergo a
colonoscopy and x-ray, it is unreasonable to suggest that those
procedures, alone, would forecast the need for surgery and an
extended period of time off work.
Third,
Central
Supply’s
size
does
not
preclude
it
from
economic reality. If the economy or a section of the economy
suffers an economic downturn, companies both large and small suffer
its
effects.
Here,
McCartney
testified
that
Central
Supply’s
building supply division was suffering an ongoing decline in
business
because
construction
of
industry
market
(Dkt.
conditions
No.
80-3
at
and
6,
changes
in
the
17-18).
Before,
buildings were constructed with masonry block and backed up by
brick. Id. at 18. Now, buildings are constructed with insulated
concrete forms or metal studs, insulation, and brick. Id.
He also
testified that because the construction industry lacks qualified
14
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
masons to do the work, “specifiers” have turned to other building
specifications. Id. All of these factors led to a decrease in
orders in Central Supply’s building supply division. Id. McCartney
had monitored the building supply division’s performance throughout
2016, and when its performance did not improve that summer, he
determined that Central Supply would have to proceed with the RIF.
Id. at 6-8, 25-26. According to McCartney, Cumpston’s position was
eliminated based on the building supply line’s actual needs. Id. at
23-24. Central Supply had no legal obligation to transfer him to
its ready mix division, and Cumpston had not applied for any open
positions in that division.
Fourth, there is no evidence that Central Supply’s explanation
that it decided to RIF Cumpston based on his driving record is not
credible. McCartney testified that Central Supply’s comprehensive
review of personnel files included an emphasis on safety (Dkt. Nos.
80-3 at 4-5). It is undisputed that the boom truck drivers retained
had fewer safety-related accidents than Cumpston (Dkt. Nos. 80-3 at
12). Nor is there any evidence to suggest that boom truck drivers
with similar driving records were not terminated. See Laing v. Fed.
Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013) (noting that evidence
of
similarly
situated
employees
15
(but
for
the
protected
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
characteristic) receiving more favorable treatment is “especially
relevant” to showing pretext under the Mcdonnell Douglas burdenshifting framework).
At bottom, Cumpston has failed to produce sufficient evidence
to support a plausible inference that the defendants’ reason for
terminating his employment was pretext for FMLA retaliation, let
alone show that it was the but-for cause of his termination. See
Foster, 787 F.3d at 252 (holding “that the McDonnell Douglas
framework has long demanded proof at the pretext stage that
retaliation was a but-for cause of a challenged adverse employment
action”). The Court therefore GRANTS the defendants’ motion to
dismiss Count One of the Complaint.
B.
State Law Discrimination Claim
In Count Two of the complaint, Cumpston contends that the
defendants’ decision to terminate his employment was substantially
motivated by his disability in violation of the West Virginia Human
Rights Act (Dkt. No. 1-1 at 4).
The West Virginia Human Rights Act (“the WVHRA”), W. Va. Code
§§ 5-11-1, 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).
16
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Discrimination “means to exclude from, or fail or refuse to extend
to, a person equal opportunities because of . . . disability . . .
.” W. Va. Code § 5-11-3(h). The Act defines disability as
(1) A mental or physical impairment which
substantially limits one or more of such
person's major life activities. The term
“major life activities” includes functions
such as caring for one's self, performing
manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working;
(2) A record of such impairment; or
(3) Being regarded as having such an
impairment.
Id. at § 5-11-3(m).
Discrimination claims brought under the WVHRA are governed by
the burden-shifting framework of Title VII of the Civil Rights Act
of 1964, as set forth in McDonnell Douglas. See Shepherdstown
Volunteer Fire Dep’t v. State 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).
In order to set forth a prima facie case of impermissible
employment discrimination under the WVHRA, Cumpston must establish:
(1) that he is a member of a protected class; (2) that the employer
made an adverse employment decision affecting him; and (3) that,
but for his protected status, the employer would not have made the
17
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
adverse decision.2 Syl. pt. 3, Conaway v. E. Associated Coal Corp.,
358 S.E.2d 423, 429 (W. Va. 1986). To establish the third element
of the prima facie case, Cumpston must “show some evidence which
would sufficiently link the employer’s decision and [his] 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.
Once Cumpston establishes a prima facie case under Conaway,
the burden shifts to the defendants to advance a non-discriminatory
reason for the his 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
protected class.” Id. If the defendants offer a legitimate, nondiscriminatory reason for their decision, Cumpston has the burden
of proving that the facially legitimate reason given by the
employer for the employment decision was merely a pretext for a
2
Here, the Court need not decide whether to apply the modified prima facie case
formulation set forth by the Fourth Circuit in Corti v. Storage Tech. Corp., 304
F.3d 336, n. 6 (4th Cir. 2002) 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.” O’Connor v. Consolidated Coin Caterers Corp., 56
F.3d 542, 546 (4th Cir. 1995) (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), rev’d on other grounds, 517 U.S. 308 (1996).
18
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
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)). In other words, “[t]o get to the jury, [Cumpston] must
offer sufficient evidence that the [defendants’] explanation was
pretextual to create an issue of fact.” Skaggs v. Elk Run Coal Co.,
Inc., 479 S.E.2d 561, 583 (W. Va. 1996).
Here, the defendants argue that Cumpston’s WVHRA claims fails
as a matter of law because he has not established a prima facie
case of disability discrimination (Dkt. No. 81 at 16-17). Cumpston,
however, insists that the defendants were well aware of his Crohn’s
disease, his July 2016 colonoscopy, and his August 2016 “testing”
related to his Crohn’s disease, all of which tends to show that
Central Supply’s decision to RIF him was pretextual (Dkt. No. 82 at
12).
While Cumpston undoubtably suffered an adverse employment
action, it is unclear whether his need for surgery and medical
leave rendered him disabled within the meaning of the WVHRA.3 The
3
As alleged in Count Two of the Complaint, Cumpston’s claim of disability
discrimination is not based on his Crohn’s disease, but rather on his need for
surgery and corresponding medical leave. Even if his claim were based on Crohn’s
disease, it is still unclear whether it “substantially limits” one or more of his
“major life activities” as to qualify it as a disability under the WVHRA.
19
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Court need not decide this question; even if he was disabled,
Cumpston’s claim of disability discrimination fails because he
cannot show that he would not have been terminated “but for” his
disability. Indeed, all of the evidence establishes that Cumpston
would have been included in Central Supply’s RIF regardless of
whether he needed surgery (Dkt. Nos. 80-3 at 9-11, 80-13).
Even if Cumpston could establish a prima facie case of
disability discrimination under the WVHRA, his claim would still
fail because it is factually impossible for the RIF to serve as
pretext for disability discrimination. When he was selected for
termination on August 11, 2016, no one (including Cumpston)knew
about the alleged disability until August 18, 2016. See supra
Section III.A.
The outcome here might have been avoided had Cumpston alleged
in his Complaint that the defendants discriminated against him
based on his Crohn's disease. But the Court will not allow Cumpston
to
amend
his
complaint
at
this
late
stage
to
avoid
summary
judgment, especially when those facts were available to him at the
outset. Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th Cir.
1996) (“A plaintiff may not amend his complaint through arguments
in his brief in opposition to a motion for summary judgment.”
20
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
(citation omitted)); Anderson v. Consol-Pa. Coal Co., 740 F. Supp.
1126, 1130 (W.D. Pa. 1990) (“We will not allow plaintiffs to expand
their theory of the case at this late date in an effort to avoid
summary judgment.”). And even if he had alleged different facts,
the defendants’ knowledge of Cumpston’s Crohn’s disease, alone, is
not enough to establish pretext. Where, as here, Cumpston had taken
medical leave because of his Crohn’s disease without repercussion
for at least two years (Dkt. No. 80-1 at 16-18).
In addition, none of the evidence attached to Cumpston’s
response brief supports his assertion that the defendants actually
knew about his July 2016 colonoscopy or his August 2016 “testing”
(Dkt. No. 82 at 12). Exhibit C is a collection of emails notifying
the defendants that Cumpston would be missing work because he was
sick or had doctors appointments (Dkt. No. 82-3). Tellingly, these
are not emails from July or August of 2016. Id. Exhibit E is a
collection of Cumpston’s hand-written notes, which were not written
contemporaneously with the events as they occurred (Dkt. No. 83-1
at 5-6). But even these notes do not suggest——let alone prove——that
the defendants were aware of Cumpston’s July 2016 colonoscopy or
August 2016 testing (Dkt. No. 82-5).
In short, Cumpston’s claim of disability discrimination fails
21
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
for lack of proof of a prima facie case. Moreover, he’s failed to
provide any evidence that the defendants’ RIF was pretextual.
Accordingly, the Court GRANTS the defendants’ motion to dismiss
Count Two of the Complaint.
C.
State Law Retaliation Claim
In Count Three of the Complaint, Cumpston alleges a common law
claim
of
retaliatory
discharge
(Dkt.
No.
1-1
at
7-8).
The
defendants contend that this claim fails as a matter of law because
it is preempted by the remedial schemes and statutory remedies set
forth in the FMLA and WVHRA (Dkt. No. 81 at 17-19). They also argue
that this claim should fail because Cumpston has not identified a
substantial public policy that supports his claim. Id. at 19-21. In
response, Cumpston argues that the FMLA and the WVHRA do not
preempt his related state law retaliation claim, which is supported
by the substantial public policies set forth in the FMLA and the
WVHRA (Dkt. No. 82 at 12-14).
Here, the Court need not decide whether Cumpston’s state law
claim is preempted because he has not successfully established a
claim for relief for retaliatory discharge in contravention of
substantial public policy. To successfully present such a claim,
West Virginia law requires Cumpston to “plead and
22
prove the
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
following elements”:
1. That a clear public policy existed and was
manifested in a state or federal constitution,
statute or administrative regulation, or in
the common law (the clarity element).
2.
That
dismissing
employees
under
circumstances like those involved in the
plaintiff’s dismissal would jeopardize the
public policy (the jeopardy element).
3. The plaintiff’s dismissal was motivated by
conduct related to the public policy (the
causation element).
4. The employer lacked overriding legitimate
business justification for the dismissal (the
overriding justification element).
Burke v. Wetzel Cty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018)
(footnote omitted). “[A] Harless-based action requires more than
simply raising the spectrum of a potentially governing law.” Id.
(quoting Frohnapfel v. ArcelorMittal USA LLC, 772 S.E.2d 350, 355
(W. Va. 2015)). “The mere citation of a statutory provision is not
sufficient to state a cause of action for retaliatory discharge
without a showing that the discharge violated the public policy
that the cited provision clearly mandates.” Id. (quoting Swears v.
R.M. Roach & Sons, Inc., 696 S.E.2d 1, 7 (W. Va. 2010)).
Cumpston’s allegations under Count Three of his complaint do
not even cite the FMLA or the WVHRA, let alone satisfy the four23
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
part test set forth in Burke (Dkt. No. 1-1 at 7-8). Moreover even
if he had successfully pleaded his state law retaliation claim, it
would fail because the defendants have provided a legitimate
business justification for his termination. As discussed in detail
in Section III.A, the defendants terminated Cumpston’s employment
because of an economic downtown in Central Supply’s building supply
business, and because he was the boom truck driver with the most
safety-related incidents (Dkt. Nos. 80-3 at 6-8, 12, 80-4, 80-5,
80-6,
80-7,
substantial
80-8,
public
80-9,
policy.
80-10).
Neither
Therefore,
the
reason
Court
violates
GRANTS
a
the
defendants’ motion to dismiss Count Three of the Complaint.
D.
West Virginia Wage Payment and Collection Act Claim
In Count Four of the Complaint, Cumpston alleges that the
defendants violated the West Virginia Wage Payment and Collection
Act (“the WVWPCA”) by failing to pay him wages for accumulated paid
time off (Dkt. No. 1-1 at 8). The defendants argue that this claim
must be dismissed because “Central Supply has an express, clear,
written policy which states that unused vacation and sick time is
forfeited upon separation of employment,” which Cumpston understood
as a term of his employment (Dkt. No. 81 at 22-23). Because
Cumpston has not responded to this argument, the Court considers it
24
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
undisputed for purposes of summary judgment. See Fed. R. Civ. P.
56(e)(2).
Generally,
the
WVWPCA
requires
an
employer
to
pay
an
employee’s final wages, including any accrued or calculable fringe
benefits, on or before the next regular payday on which the wages
would otherwise be due and payable:
Whenever a person, firm or corporation
discharges an employee, or whenever an
employee quits or resigns from employment, the
person, firm or corporation shall pay the
employee's wages due for work that the
employee performed prior to the separation of
employment on or before the next regular
payday on which the wages would otherwise be
due and payable: Provided, That fringe
benefits, as defined in section one of this
article, that are provided an employee
pursuant to an agreement between the employee
and employer and that are due, but pursuant to
the terms of the agreement, are to be paid at
a future date or upon additional conditions
which are ascertainable are not subject to
this subsection and are not payable on or
before the next regular payday, but shall be
paid according to the terms of the agreement.
W. Va. Code § 21-5-4(b). Fringe benefits “means any benefit
provided an employee or group of employees by an employer, or which
is required by law,” including vacation and sick leave. W. Va. Code
§ 21-5-1(l). The Supreme Court of Appeals, however, has recognized
that “the terms of employment may condition the vesting of a fringe
25
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
benefit right on eligibility requirements in addition to the
performance of services, and these terms may provide that unused
fringe benefits will not be paid to employees upon separation from
employment.” Syl. Pt. 5, Meadows v. Wal-Mart Stores, Inc., 530
S.E.2d 676 (W. Va. 1999) (emphasis added).
Here, the terms of Cumpston’s employment did just that.
Central Supply’s Employee Handbook explicitly states that “[i]n the
event of severance of employment, either voluntary or involuntary,
unused vacation time will be forfeited” (Dkt. No. 80-16 at 5). It
also states that “[i]n the event of severance of employment, either
voluntary or involuntary, unused sick time will be forfeited.” Id.
at 6. Because the terms of Cumpston’s employment clearly state that
unused vacation and sick time would be forfeited upon the severance
of
employment,
his
WVWPCA
claim
fails
as
a
matter
of
law.
Accordingly, the Court GRANTS the defendants’ motion to dismiss
Count Four of the Complaint.
E.
Tort of Outrage Claim
In Count Five of the Complaint, Cumpston pleads a tort of
outrage, alleging that his wrongful termination was undertaken in
an outrageous manner, resulting in the intentional infliction of
emotional distress (Dkt. No. 1-1 at 9). The defendants argue that
26
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
Cumpston’s own testimony establishes that his termination was
anything but outrageous (Dkt. No. 81 at 25). Cumpston nevertheless
insists that the defendants’ conduct was outrageous because he was
“devastated” and Central Supply ignored his multiple attempts to
contact HR after he was terminated (Dkt. No. 82 at 15).
Under West Virginia law, to establish the tort of outrage,
which
is
also
distress,
known
as
intentional
infliction
of
emotional
Cumpston must establish the following four elements:
(1)
that
the
defendant's
conduct
was
atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency;
(2) that the defendant acted with the intent
to inflict emotional distress, or acted
recklessly
when
it
was
certain
or
substantially certain emotional distress would
result from his conduct; (3) that the actions
of the defendant caused the plaintiff to
suffer emotional distress; and, (4) that the
emotional distress suffered by the plaintiff
was so severe that no reasonable person could
be expected to endure it.
Syl. Pt. 3, Travis v. Alcon Labs., 504 S.E.2d 419 (W. Va. 1998). In
other words, the defendants’ conduct must have “been so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly
intolerable
(quotation
omitted).
in
In
a
civilized
the
community.”
employment
27
context,
Id.
at
425
“when
the
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
employee's distress results from the fact of his discharge-e.g.,
the embarrassment and financial loss stemming from the plaintiff's
firing-rather than from any improper conduct on the part of the
employer in effecting the discharge, then no claim for intentional
infliction of emotional distress can attach.” Syl. Pt. 2, Dzinglski
v. Weirton Steel Corp., 445 S.E.2d 219 (W. Va. 1994).
Here, the evidence falls woefully short of satisfying the
four-part test in Travis. In his deposition, Cumpston testified
that he was terminated during a face-to-face meeting with Nuzum,
during which she first informed him that he was being terminated
because Central Supply was downsizing, and then offered him a
severance package (Dkt. No. 80-1 at 31-33). Cumpston acknowledged
that Nuzum did not raise her voice, scream, or yell at him when
discussing his termination, nor did she use any profanity or
inappropriate language. Id. at 32-33. Indeed, he testified that she
acted in a completely professional manner. Id. Despite this,
Cumpston claims he was “devastated” by his termination and felt
like a criminal when he was escorted from the premises by Nuzum
following the meeting. Id. at 33.
Simply put, even if hurtful, none of this conduct was “so
outrageous in character, and so extreme in degree, as to go beyond
28
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Travis, 504
S.E.2d at 425. Although Cumpston was distressed, that distress
was——by his own admission——not the result of Nuzum’s conduct (Dkt.
No. 80-1 at 31-33). Because the evidence falls far short of
satisfying the four-part test set forth in Travis, Cumpston’s claim
of tort of outrage fails as a matter of law. Therefore, the Court
GRANTS the defendants’ motion and DISMISSES Count Five of the
Complaint.
F.
Short Term Disability Insurance Retaliation Claim
In Count Six of the Complaint, Cumpston alleges a claim of
short-term disability insurance retaliation (Dkt. No. 1-1 at 9). He
now seeks to voluntarily dismiss Count Six (Dkt. No. 79). Under the
Federal Rules of Civil Procedure, after the defendant has served an
answer, a claim or cause of action “may be dismissed at the
plaintiff’s request only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). After considering
Cumpston’s motion, and finding good cause, the Court GRANTS the
motion (Dkt. No. 79) and DISMISSES Count Six of the Complaint.
IV. CONCLUSION
For all the reasons discussed, the Court:
29
CUMPTSON v. CENTRAL SUPPLY COMPANY
OF WEST VIRGINIA, et al.
1:17CV61
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND
GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)
(1)
GRANTS Cumpston’s motion to dismiss Count Six of the
Complaint (Dkt. No. 79) and DISMISSES Count Six WITH
PREJUDICE; and
(2)
GRANTS the defendants’ motion for summary judgment (Dkt.
No. 80) and DISMISSES the Complaint WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and enter a separate judgment order in favor
of the defendants Central Supply Company of West Virginia and
Patrick Scott Tucker.
DATED: October 5, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?