Porter v. M.W. Logistics Services, LLC

Filing 39

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. NO. 31 AND DISMISSING CASE WITH PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Irene M. Keeley on 8/23/19. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TAMMY PORTER
Plaintiff,
v.

CIVIL ACTION NO. 1:18CV122
(Judge Keeley)

M.W. LOGISTICS SERVICES, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
This is an action for sexual harassment and retaliation in
violation of the West Virginia Human Rights Act, W. Va. Code §§ 511-1, et seq. Pending before the Court is the defendant’s motion
for summary judgment. For the reasons that follow, the Court GRANTS
the motion (Dkt. No. 31), and DISMISSES the case with prejudice.
I. BACKGROUND
A.

Porter and Eastham’s Agreement
Since February 2014, the plaintiff, Tammy Porter (“Porter”),

has owned and operated Porter’s Grinds and Finds, a brick-andmortar restaurant and gift shop located in West Union, West
Virginia (Dkt. No. 32-2 at 2-3). The defendant, M. W. Logistics
Services, LLC (“M.W. Logistics”), provides employee services to
MarkWest Energy Partners L.P. (“MarkWest”) and its subsidiaries and
affiliates (Dkt. No. 32-1 at 1). Markwest, a midstream services
company, is the largest processor of natural gas in the Marcellus

PORTER V. M.W. LOGISTICS SERVS., LLC

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
Shale. Id. Markwest operates its Sherwood Processing Facility (the
“Facility”) near West Union. Id. at 2. The Facility consists of
several individual processing plants, all of which are located on
the same site. Id. The construction of additional processing plants
at the Facility was ongoing during all relevant times.
Sometime in 2016, the Facility’s Production Manager, Randall
Eastham (“Eastham”)1, dined at Porter’s restaurant. Id. at 7. While
Eastham dined, he and Porter discussed the possibility of Porter
placing a mobile food trailer at the Facility for the purpose of
providing food to the many construction contractors on site. Id. at
7-8. Shortly thereafter, Porter met Eastham in his office to
discuss the details of the arrangement. Id. at 8-9. During that
meeting, Eastham told Porter that she could park her food trailer
near a security gate at the entrance of the Facility, downhill from
the processing plants, and that MarkWest would provide electricity
to the trailer. According to Porter, Eastham “didn’t want a dime”
in exchange for providing her access to the Facility because he was
“happy [that she would] be providing a service to the contractors”
on site. Id. at 11. Porter and Eastham’s verbal agreement was not
reduced to a written contract.

1

The parties agree that Porter misstates Eastham’s surname as
“Eastman” throughout the complaint.
2

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
At the time Eastman granted Porter access to the Facility,
seven (7) processing plants were operational and an eighth plant
(“Sherwood #8”) was under construction (Dkt. No. 32-1 at 2). The
Facility’s

construction

plan

called

for

building

a

single

processing plant to completion, making it operational, and then
moving to a different portion of the site to begin construction on
the next plant. Id. All construction-related activities at the
Facility were managed by an employee of

M.W. Logistics, Kevin

Sturgill (“Sturgill”). Id. Eastham, meanwhile, was responsible for
the management of processing plants actually in operation. Id.
Shortly after Porter’s arrangement with Eastham became known
to

the

construction

contractors,

they

requested

that

she

be

permitted to place her food trailer at the top of the hill, closer
to their construction activities (Dkt. No. 32-1 at 3). Because the
contractors had only thirty (30) minutes for lunch, they did not
believe they would have sufficient time to walk down the hill,
purchase food, and return with enough time to eat their meal. Id.
To accommodate the contractors’ request, MarkWest2 allowed Porter
to move her trailer to the top of the hill, where a number of other

2

The parties sometimes use the term “MarkWest” to refer to
MarkWest Energy Partners L.P. and its subsidiaries, including
M.W. Logistics, collectively. The Court will refer to each entity
as reflected by the record before it.
3

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
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contractors’ mobile trailers were already located. Id.; see also
Dkt. No. 32-2 at 21-22. When Porter placed her trailer at this
location, she was physically closest to Sherwood #8, which remained
under construction (Dkt. Nos. 32-1 at 3; 32-2 at 23).
B.

Ongoing Construction at the Facility
Federal and state safety regulations require MarkWest to

account for the potential of an explosive event at the Facility by
implementing certain safety requirements, including the delineation
of a “blast zone” based on physical proximity to potential ignition
sources, such as natural gas (Dkt. No. 32-1 at 3-4). Safety
regulations require that structures intended for human occupancy
and

physically

located

within

the

delineated

blast

zone

be

“blastproof.” Id. at 4. A blastproof structure is manufactured to
withstand certain forces that would exist in the event of an
explosive event, in order to protect human life. Id.
Because Sherwood #8 was not yet operational at the time Porter
placed her trailer at the top of the hill, there was no potential
ignition source (natural gas) flowing through it (Dkt. Nos. 32-1 at
4). Therefore, the trailers located at the top of the hill were not
within a delineated blast zone (Dkt. No. 32-1 at 4). Upon Sherwood
#8 becoming operational, however, there would be no location within
the Facility that was not within a blast zone, based on physical
4

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
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proximity to an ignition source. Id. Accordingly, Sturgill, through
his assistant, Christina Wolfgang (“Wolfgang”), notified Porter and
the construction contractors that, upon the completion of Sherwood
#8, they would have to rent blastproof trailers in order to remain
on site. Id.; Dkt. No. 32-3 at 1.
Porter testified during her deposition that, no later than
September 2017, she knew that she would be required to obtain a
blastproof trailer in order to remain on site once Sherwood #8
became operational in early 2018 (Dkt. No. 32-2 at 26-32). During
the autumn of 2017, Wolfgang had at least four or five additional
conversations with Porter about the need to either move her
existing trailer or procure a blastproof trailer (Dkt. No. 32-3 at
2). According to Wolfgang, she informed Porter that, if she did not
wish to obtain a blastproof trailer, she could move her trailer
back down the hill and place it near the security gate. Id. As of
January 2018, Porter had not acquired a blastproof trailer. Id.
C.

Eastham’s Text Messages to Porter
On the morning of January 13, 2018, Eastham sent Porter a text

message requesting that she deliver six pizzas to the Facility for
lunch (Dkt. No. 33-2 at 1). Porter responded that she would deliver
the pizzas and stated, “Anything for Randall.” Id. at 1-2. Her

5

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
message included a smiley face emoji.3 Id. at 2. In response,
Eastham sent Porter a series of text messages stating, “I have an
empty office,” “I’m in my office alone,” and “You said anything.”
Id. at 2-3. Because Eastham’s statements made her uncomfortable,
Porter asked him to call another company to deliver the pizzas. Id.
at 3. The next morning, Porter texted Eastham, “Randall, Maybe I
have sent you the wrong msg [sic]. I am sorry if I did. I am in
serious relationship with Duane. I don’t want this to change our
working relationship.” Id. at 4. Eastham responded, “Not at all,
100% joke, we’ve always joked, My bad.” Id. at 5.
Ten days later, on January 24, 2018, Porter received a
Facebook message from Wolfgang, which stated, “Hey [T]ammy, [K]evin
[Sturgill] said to let you know that your trailor [sic] needs to be
mov[ed] out by tomorrow. Please let us know who is coming to get
it” (Dkt. No. 32-6). Although her message to Porter did not
specifically

mention

the

blast

zone,

Wolfgang

states

in

her

declaration that Sturgill had instructed her to inform Porter that
her trailer “needed to be moved from the blast zone” (Dkt. No. 32-3
at

2).

In

response

to

Wolfgang’s

message,

Porter

stated,

“Tomorrow?!? Let me c [sic] what I can pull off” (Dkt. No. 32-6).
3

An emoji “is a pictograph included in a text message.” Doe v.
W. New Eng. Univ., 228 F.Supp.3d 154, 163 n.7 (D. Mass. 2017).
6

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Porter listed her trailer for sale on Facebook the same day (Dkt.
No. 32-7). According to Sturgill, he had no knowledge of any text
message

exchange

between

Porter

and

Eastham

at

the

time

he

instructed Wolfgang to inform Porter to move her trailer from the
blast zone (Dkt. Nos. 32-1 at 5).
Four days later, on January 28, 2018, Eastham sent an email to
his administrative assistant, Autumn David (“David”), asking her to
plan a catered lunch event at the Facility and directing that she
“not [use] [P]orters” (Dkt. No. 33-3). When David further inquired
about the catering, Eastham responded, “I’m finished with Tammy
Porter, we won’t be supporting her out of Sherwood’s budget.” Id.
The following day, January 29, 2018, Porter received a series of
text messages from David, which stated, “I need you to arrange to
get the pop machine and the camper off site this week. No clue why.
Was just told to ask you.” (Dkt. No. 33-4). When Porter asked
whether Eastham had given the directive, David confirmed that he
had. Id.
D.

Procedural Background
On April 25, 2018, Porter sued MarkWest Energy Partners, L.P.

in the Circuit Court of Harrison County, West Virginia, asserting
claims of (1) sexual harassment in violation of the West Virginia
Human Rights Act (“WVHRA”), and (2) malicious, willful, wanton, and
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reckless misconduct. Shortly thereafter, on May 7, 2018, Porter
filed an amended complaint to change the name of the corporate
defendant to M.W. Logistics (Dkt. No. 1-1). On May 25, 2018, M.W.
Logistics timely removed the case to this Court (Dkt. No. 1).
Following removal, M.W. Logistics moved to dismiss Porter’s
Amended Complaint for failure to a state a claim (Dkt. Nos. 4; 5).
During a scheduling conference on August 24, 2018, the Court
granted the motion to dismiss, in part, but denied the motion to
dismiss Porter’s claim for sexual harassment under the WVHRA (Dkt.
No. 5). Porter thereafter filed a Second Amended Complaint on
August 30, 2018, asserting separate causes of action against M.W.
Logistics for sexual harassment and retaliation under the WVHRA
(Dkt. No. 19).
Now pending is M.W. Logistics’ motion for summary judgment
(Dkt. No. 31), which is now 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
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
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“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). “Summary judgment cannot be granted merely because the court
believes that the movant will prevail if the action is tried on the
merits.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562,
568 (4th Cir. 2015) (citation omitted). The Court must therefore
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,
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

reasonably find for the nonmoving party. Id. at 248–52.

9

could

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III. DISCUSSION
A.

Sexual Harassment Claim
In Count One of the Second Amended Complaint, Porter alleges

a claim for quid pro quo sexual harassment, in violation of the
WVHRA (Dkt. No. 19 at 3-5).
“Under the West Virginia Human Rights Act, W. Va. Code
§§

5–11–1,

et

seq.,

it

is

unlawful

‘[f]or

any

employer

to

discriminate against an individual with respect to . . . tenure,
terms, conditions or privileges of employment[.]’” Ford Motor
Credit Co. v. W. Virginia Human Rights Comm’n, 696 S.E.2d 282, 292
(W. Va. 2010) (quoting W. Va. Code § 5–11–9(1)). The Supreme Court
of Appeals of West Virginia (“Supreme Court of Appeals”) has
consistently “recognized sexual harassment as an independent basis
for stating a Human Rights Act claim.” Conrad v. ARA Szabo, 480
S.E.2d 801, 810 (W. Va. 1996) (citing Hanlon v. Chambers, 464
S.E.2d 741, 748-50 (W. Va. 1995); Westmoreland Coal Co. v. W. Va.
Human Rights Comm’n, 382 S.E.2d 562 (W. Va. 1989)). The form of
sexual harassment alleged in this case, “quid pro quo” sexual
harassment, “involves an employer or its agent demanding sexual
consideration in exchange for job benefits.” Conrad, 480 S.E.2d at
810 n.4 (citations omitted).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
In order to set forth a prima facie case of quid pro quo
sexual harassment, a plaintiff must establish, by a preponderance
of the evidence, that: (1) she belongs to a protected class; (2)
she was subject to an unwelcome sexual advance by an employer or an
agent

of

influence

the

employer

vital

job

who

appears

decisions;

and

to
(3)

have
her

the

authority

reaction

to

to
the

advancement was expressly or impliedly linked by the employer or
the employer’s agent to tangible aspects of employment. Syl. pt. 1,
Gino’s Pizza of W. Hamlin, Inc. v. W. Virginia Human Rights
Comm’n,418 S.E.2d 758, 759 (W. Va. 1992) (citing Westmoreland, 382
S.E.2d at 566–67).
Here, Porter has clearly established the first element of her
sexual harassment claim. She is a female, and accordingly, a member
of the protected class. At issue are the second and third elements
of Porter’s prima facie case. M.W. Logistics argues that, even if
Porter was subject to an unwelcome sexual advance by Eastham,
neither he nor M.W. Logistics had the authority to influence vital
job decisions or the ability to affect tangible aspects of her
employment (Dkt. No. 31). Porter contends, however, that M.W.
Logistics, through Eastham, affected her employment opportunities
by eliminating her ability to sell food on the Facility’s premises
(Dkt. No. 33).
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
As an initial matter, it is undisputed that M.W. Logistics is
an “employer”4

under the WVHRA. It is also undisputed that Porter

was not employed by M.W. Logistics (Dkt. No. 32-2 at 3-4). Rather,
Porter was a self-employed individual who sold food to construction
workers on M.W. Logistics’ work site as “a leg of” her own brickand-mortar restaurant. The Supreme Court of Appeals has made clear
that § 5–11–9(1) of the WVHRA “prohibits any person who is an
employer from discriminating against any ‘individual’ regarding his
or

her

employment

opportunities

irrespective

of

whether

the

individual is an employee of or seeks work with that employer.”
Syl. pt. 8, Conrad v. Ara Szabo, 480 S.E.2d 801 (W. Va. 1996); see
also Syl. pt. 4, Constellium Rolled Prod. Ravenswood, LLC v.
Griffith, 775 S.E.2d 90, 93 (W. Va. 2015) (citing Syl. pt. 8,
Hanlon, 464 S.E.2d at 745) (“The West Virginia Human Rights Act .
. . imposes a duty on employers to ensure that workplaces are free
of sexual harassment from whatever source.”).

4

Under the Act, the term “employer” includes “any person
employing twelve or more persons within the state for twenty or
more calendar weeks in the calendar year in which the act of
discrimination allegedly took place or the preceding calendar
year.” W. Va. Code § 5-11-3(d). The term “person,” in turn,
“means one or more individuals, partnerships, associations,
organizations, corporations, . . . and other organized groups of
persons.” Id. § 5-11-3(a).
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
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In Conrad, the plaintiff sued, among others, the West Virginia
Regional Jail Authority (“Jail Authority”) for sexual harassment
and retaliatory discharge in violation of the WVHRA. She alleged
that, while working in the kitchen at Eastern Regional Jail
(“Jail”), she had been subjected to sexual harassment by Jail
employees, and that she had been terminated after complaining about
the harassment. Conrad, 480 S.E.2d at 806-08. Although actually
employed by a private corporation that provided food services to
the Jail, the plaintiff contended that the Jail Authority could be
sued for sexual harassment under the WVHRA because (1) it was “an
employer” under the Act, and (2) its employees had discriminated
against her, “an individual,” by permitting a sexually hostile work
environment and by effecting her termination from her employer, the
food services company. Id. at 815. The Jail Authority disagreed,
contending that § 5-11-9(1) reaches only discrimination by an
employer against its employees or applicants for employment. Thus,
it argued that it could not be liable to the plaintiff under that
section because it was not her employer; rather, she was employed
by the food services company. Id.
“Bearing in mind § 5-11-15’s admonition of calling for a
liberal interpretation of the Act,” the Supreme Court of Appeals
concluded that the plaintiff’s interpretation is the preferred one.
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Id. at 816. In reaching that conclusion, the court first noted that
the plaintiff’s interpretation permitted the statute to be given
its literal meaning: Ҥ 5-11-9(1) says that an employer shall not
discriminate against ‘an individual’; it does not say against ‘an
employee

or

applicant.’”

Id.

(emphasis

omitted).

It

further

concluded that the plaintiff’s interpretation “better promotes the
purpose of the statute, which is, of course, to guarantee equal
opportunity to all persons regardless of their gender . . . .” Id.
Finally, the court observed that “no reason exists to insulate an
employer

from

liability

if

it

obstructs

the

employment

opportunities of any individual because of her gender even if she
works for, or seeks work with, some other employer.” Id. (emphasis
added). Accordingly, the court held that the plaintiff should be
given an opportunity on remand to prove that the Jail Authority
caused her to suffer a hostile working environment because of her
sex, and caused her to lose her job because of her sex or her
opposition to sexual harassment. Id.
Thus, in some circumstances, it is possible for an entity that
is

not

an

individual’s

employer

to

be

held

liable

for

discrimination under the WVHRA. For such liability to exist,
however, the entity must “obstruct[] the employment opportunities”
of the individual. Id. at 816. As in Conrad, here also the
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
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defendant-company is “an employer” and the plaintiff-worker is “an
individual” who was not employed by that company. In both cases,
the plaintiff worked on site at the defendant’s place of business,
where, in the course of performing her work, she was allegedly
harassed by person(s) employed by the defendant. There, however,
the similarities end.
Critically,

the

WVHRA

prohibits

discriminatory

practices

related to employment:
It shall be an unlawful discriminatory practice . . .:
(1) For any employer to discriminate against an
individual with respect to compensation, hire,
tenure,
terms,
conditions
or
privileges
of
employment ... .
W. Va. Code § 5-11-9(1) (emphasis added); see also id. § 5-11-2
(“It is the public policy of the state of West Virginia to provide
all of its citizens equal opportunity for employment ... .”). Thus,
while the WVHRA plainly protects “individual[s]” from unlawful
discrimination, it nonetheless requires that the discrimination in
question relate to that individual’s employment.
Unlike the plaintiff in Conrad, whose termination from her
employer was effected by the defendant, Porter’s employment was not
terminated or otherwise obstructed by M.W. Logistics. During her
deposition, Porter testified that she was not, and has never been,
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an employee of M.W. Logistics (Dkt. No. 32-2 at 3-4). Rather,
Porter was “the owner and sole proprietor” of her own business,
Porter’s Grinds and Finds. Id. at 18. Most significantly, Porter
testified during her deposition that M.W. Logistics had no ability
whatsoever to terminate or otherwise affect her employment with
Porter’s Grinds and Finds:
Q: And to be very clear, as the owner of that business,
nobody could tell Porter’s to fire you; could they?
A: Nobody could tell Porter’s to fire me, no.
Q: No, that’s not true? Or no, that couldn’t happen?
A: Nobody could tell Porter’s to fire me. No. No one
could – no one could fire me. Correct.
Q: Right. Because you are the owner and sole proprietor
of that business; true?
A: Correct.
Q: You are the final decision-maker; correct?
A: Correct.
. . .
Q: Yeah. Is there any – is there even a single person in
the entire world that could tell Porter’s Grinds and
Finds that you weren’t allowed to be associated with that
entity?
A: No.
Q: Is there a single person in the world that could tell
Porter’s Grinds and Finds that it wasn’t allowed to
provide revenue to you as the sole owner of the business?
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A: No.
Id. at 17-19.
Thus, based on her own admissions, it is undisputed that M.W.
Logistics could not have “obstruct[ed] the employment opportunities
of” Porter or otherwise discriminated against her “regarding . . .
her

employment

opportunities.”

Conrad,

S.E.2d

at

816;

801.

Therefore, even when drawing all reasonable inferences in her
favor, M.W. Logistics could not have discriminated against Porter
with respect to the “tenure, terms, conditions or privileges of
[her] employment” at Porter’s Grinds and Finds, in violation of the
WVHRA. See W. Va. Code § 5-11-9(1).
Moreover,

to

the

extent

that

Porter

contends

that

M.W.

Logistics obstructed her employment opportunities by eliminating
her ability to sell food at the Facility, Dkt. No. 33 at 8-9, that
argument is unavailing. Although Porter’s inability to park her
mobile food trailer on the Facility’s premises may have “affected
her ability to earn an income” by selling food to a particular
customer base, a lost business opportunity does not equate to a
lost employment opportunity. As discussed earlier, Porter admitted
during her deposition that M.W. Logistics could not accomplish her
termination from Porter’s Grinds and Finds or otherwise affect the
terms or conditions of her employment. See Dkt. No. 32-2 at 15-19.
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Thus, when the evidence is viewed in the light most favorable
to Porter, as it must be, the Court concludes that she has failed
to offer sufficient evidence that her reaction to Eastham’s alleged
sexual advance was linked by M.W. Logistics, or Eastham, to
tangible aspects of Porter’s employment so as to withstand summary
judgment.5 Having failed to demonstrate the requisite link to her
employment, Porter has failed to establish a prima facie case of
quid pro quo sexual harassment under the WVHRA.
B.

Retaliation Claim
In addition to her sexual harassment claim, Porter alleges in

Count Two that M.W. Logistics retaliated against her when she
“rebuffed Eastman’s [sic] advances and opposed his overtures,” in
violation of the WVHRA (Dkt. No. 19 at 5-8).
Under West Virginia law, Porter must establish the following
elements to state a prima facie claim for unlawful retaliation: (1)
she was engaging in protected activity; (2) her employer was aware
of the protected activity; (3) her employer took adverse action
5

The Court recognizes that a genuine dispute of material fact
exists as to the reason why M.W. Logistics revoked Porter’s access
to the Facility, and whether that revocation was due, at least in
part, to her rebuke of Eastham’s alleged sexual advance.
Nevertheless, Porter cannot demonstrate that any alleged gender
discrimination by M.W. Logistics, or its agent, affected the
compensation, hire, tenure, terms, conditions, or privileges of her
employment, as required to establish a violation of the WVHRA.
18

PORTER V. M.W. LOGISTICS SERVS., LLC

1:18CV122

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
against her; and (4) the adverse action was retaliatory or, in the
absence of such evidence, was 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 (W. Va. 1990)).
At issue is whether Porter engaged in a “protected activity”
within the meaning of the Human Rights Act. Under the WVHRA, 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 Supreme Court
of Appeals has interpreted such protected activity to include “that
which

challenges

any

practices

or

acts

forbidden

under”

the

statute. Hanlon, 464 S.E.2d at 753 (internal quotations omitted).
In Hanlon, the Supreme Court of Appeals explained that the WVHRA
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
19

PORTER V. M.W. LOGISTICS SERVS., LLC

1:18CV122

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
theory that are plausible. Further, the view must be
honestly held and be more than a cover for troublemaking.
Id. at 754 (emphasis added); see also Conrad, 480 S.E.2d at 813
(apply the same definition of protected activity). 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. (emphasis added). Thus, to have
engaged in “protected activity,” Porter must have challenged or
otherwise opposed conduct that she reasonably and in good faith
believed unlawful under the WVHRA.
Here, Porter has failed to demonstrate that she engaged in any
such activity. As discussed earlier, Porter testified during her
deposition that M.W. Logistics was not her employer; that she was
the “final decision-maker” with regard to her business and her
employment at Porter’s Grinds and Finds; and that neither M.W.
Logistics nor Eastham had the ability to terminate her or to
otherwise affect any tangible aspect of her employment. See Dkt.
No. 32-2 at 3-4; 17-19. Therefore, the Could concludes, as a matter
of law, that Porter could not have reasonably believed that she was
opposing

an

unlawful

employment

Eastham’s alleged sexual advance.
20

practice

when

she

rebuffed

PORTER V. M.W. LOGISTICS SERVS., LLC

1:18CV122

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE WITH PREJUDICE
IV. CONCLUSION
In conclusion, for the reasons discussed, the Court GRANTS
M.W. Logistics’ motion for summary judgment (Dkt. No. 31), and
DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Court

DIRECTS

the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: August 23, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

21