Spatafore v. City of Clarksburg

Filing 87

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 23 ]. Defendant, City of Clarksburg's Motion for Summary Judgment [ECF No. 23 ] is GRANTED and Plaintiff's Complaint [ECF No. [1-3]] is DISMISSED WITH PREJUDICE. All other pending motions are hereby DENIED AS MOOT [ECF Nos. 61 , 62 , 70 ]. This action is thus STRICKEN from the Court's active docket and the Clerk is DIRECTED to enter judgment in favor of the City of Clarksburg. Signed by Chief District Judge Thomas S. Kleeh on 9/23/2024. (jb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
DOMINIQUE SPATAFORE,
Plaintiff,
v.

CIVIL ACTION NO. 1:22-CV-108
(KLEEH)

CITY OF CLARKSBURG,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [ECF NO. 23]
Pending before the Court is Defendant, City of Clarksburg’s
Motion for Summary Judgment [ECF No. 23]. For the reasons discussed
herein, the Motion is GRANTED.
I.

PROCEDURAL HISTORY

On September 22, 2022, Plaintiff Dominque Spatafore filed
suit in the Circuit Court of Harrison County, West Virginia.
Defendant City of Clarksburg removed the action to this Court on
October 18, 2022. ECF No. 1. Plaintiff’s Complaint alleged (1)
Family and Medical Leave Act (“FMLA”) retaliatory discharge, (2)
disability discrimination under the West Virginia Human Rights
Act, (3) retaliatory discharge in violation of a substantial public
policy, and (4) a constitutional tort under the West Virginia
Constitution. ECF No. 1-3. The Court dismissed Count Four upon an
unopposed motion by Defendant. ECF No. 22.
On

October

6,

2023,

Defendant

filed

Defendant,

City

of

Clarksburg’s Motion for Summary Judgment [ECF No. 23]. On March 5,
2024, Plaintiff responded in opposition to summary judgment [ECF
No. 44], and Defendant filed its reply in support on March 19,
2024 [ECF No. 59]. Thus, the Motion is fully briefed and ripe for
review.
II.
This

lawsuit

(“Plaintiff”

or

arises

FACTUAL BACKGROUND
from

Plaintiff

“Spatafore”)

Dominque

discharge

from

Spatafore’s

the

City

of

Clarksburg’s (“Defendant” or “City”) employment. Defendant hired
Plaintiff as the Marketing and Community Relations Specialist in
November 2014. Def. Ex. A, Def.’s Mot. Summ. J., ECF No. 24.
On October 20, 2020, Plaintiff received a copy of the City’s
Personnel

&

Administrative

Policies

and

Procedures

Manual

(“Handbook”). Id. at Def. Ex. C. Plaintiff understood that it was
her responsibility to comply with the Handbook’s policies and
procedures. Id.
The City follows a progressive discipline policy. Pl. Ex. 2,
Pl.’s Resp. in Opp., Harry Faulk Dep. at 30:17-20, ECF No. 44-2.
During her employment, Plaintiff received verbal warnings for
taking an extended lunch hour on February 2, 2021, and for improper
notification for an absence on January 29, 2021. Def. Ex. D, Def.’s
Mot. Summ. J., ECF No. 24.
On June 1, 2021, Plaintiff began reporting to the new Director
of Economic Development, John Whitmore, as her direct supervisor.
2

Id. at Def. Ex. F. Previously, Plaintiff’s direct supervisor was
City Manager Harry Faulk. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry
Faulk Dep. at 25:19 – 26:1, ECF No. 44-2.
Plaintiff

suffers

from

Crohn’s

disease

and

an

eating

disorder. Id. at Pl. Ex. 1, Dominque Spatafore Dep. at 110:7112:24, ECF No. 44-1. Plaintiff claims she took days off while
employed with the City due to her Crohn’s disease flaring up. Id.1
On July 21, 2021, Plaintiff informed the City that she would be
entering a four-week residential treatment program for an eating
disorder. Def. Ex. G, Def.’s Mot. Summ. J., ECF No. 24; Pl. Ex 3,
ECF

No.

44-3.

The

City

provided

Spatafore

with

information

regarding the FMLA leave process, and her request for leave was
granted. Def. Exs. H, I, Def.’s Mot. Summ. J., ECF No. 24; Pl. Ex.
4, Pl.’s Resp. in Opp., ECF No. 44-4. Pursuant to the City’s
Handbook, Plaintiff was required to use her accumulated paid leave
time before taking FMLA. Def. Ex. J, Def.’s Mot. Summ. J., ECF No.
24. The City also permitted employees to transfer sick days to
other employees facing medical issues that required at least one
month off work. Id. However, an employee would only receive the
amount of donated time required and the City’s policy provided

The record does not show that the City, namely City Manager Harry
Faulk, knew Plaintiff had taken sick days due to her Crohn’s disease.
Rather, Faulk learned of Plaintiff’s Crohn’s disease in 2021 when she
went to rehabilitation for her eating disorder. Faulk Dep., ECF No. 442. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry Faulk Dep. at 172:22-24, ECF
No. 44-2.

1

3

that any excess donated would be returned to the donors. Id.
City Manager Harry Faulk approved Spatafore’s request to
solicit for donated paid leave time. Def. Exs. K-M, Def.’s Mot.
Summ. J., ECF Nos. 24, 24-1. Plaintiff received enough donated
time that she was paid for the entirety of her rehabilitation
program. Id. at Def. Exs. B, P. In fact, Plaintiff received more
donated time than she required, so the excess time donations were
returned to the donors in accord with the City’s Handbook policy.
Id. at Def. Ex. Q.
Upon completion of her rehabilitation program, Plaintiff
returned to work on September 13, 2021. Pl. Ex. 2, Pl.’s Resp. in
Opp., Harry Faulk Dep. at 174:15-18, ECF No. 44-2. Thereafter,
Plaintiff requested to periodically take longer lunch breaks and
adjust her working hours to attend therapy. The City granted
Plaintiff’s request. Def. Ex. B, Spatafore Dep. at 121: 7-122: 17,
ECF No. 24; Def. Ex. R, ECF No. 24-1.
On September 20, 2021, City Manager Faulk requested Plaintiff
make a certain social media posting at 8:30 a.m. However, Plaintiff
did not make the posting as required because she was waiting on a
picture to be included in the post. Id. at Def. Ex. S, ECF No. 241. Following, Plaintiff requested a meeting to discuss her job
duties. Id.
From September 22, 2021 to September 24, 2021, Plaintiff was
required to take unpaid leave because she exhausted all her sick
4

leave. Id. at Def. Ex. U, ECF No. 24-1; Pl. Ex. 7, Pl.’s Resp. in
Opp., ECF No. 44-7. Upon notification from the City that her sick
time

would

be

unpaid,

Plaintiff

called

the

City’s

policy

“regressive” and requested to use leave time that had been donated
to her when she was on FMLA leave. Def. Ex. U, ECF No. 24-1.
However, the excess leave time had already been returned to the
donors, in accord with the Handbook. Id.
As previously requested, Faulk and others met with Plaintiff
to discuss her job duties, as part of a Performance Improvement
Plan, on September 28, 2021. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry
Faulk

Dep.

Plaintiff

at
was

174:19-22,
advised

ECF

that

No.
her

44-2.
work

During

the

performance

meeting,
had

been

unsatisfactory, including “limited communication regarding use of
sick leave and leave of absence from the position; failure to
complete tasks in a timely manner (website updates, Facebook posts,
weekly work reports, position description)”. Def. Ex. V, Def.’s
Mot. Summ. J., ECF No. 24-1. Plaintiff thereafter informed the
City that she did not believe she could meet the goals outlined in
her performance plan. Def. Ex. B, Spatafore Dep. at 214: 18-22,
Def.’s Mot. Summ. J., ECF No. 24.
Based upon Plaintiff’s stated concern that she might not be
able to complete the duties of her position, Plaintiff and the
City discussed an open position in the Finance Department as an
account clerk. Id. at 214: 23-215: 11. Plaintiff applied for and
5

was subsequently transferred to the account clerk position. Id. at
Def. Exs. W-Y, ECF No. 24-1. Plaintiff earned the same salary and
benefits in the new position, as she previously received as the
Marketing and Community Relations Specialist. Id. at Def. Ex. B,
Spatafore Dep. at 179:11-16. As part of Plaintiff’s transfer to
the Finance Department, Plaintiff’s direct supervisor became Kim
Karakiozis. Id. at Def. Ex. X.
On or about October 21, 2021, Plaintiff Facebook messaged
Justine Marino, the wife of the City’s then-Mayor, to complain
regarding various aspects of her employment with the City. Id. at
Def. Ex. Z. She further asked Mrs. Marino to pass her complaints
along to the then-Mayor James Marino. Id. The messages were
forwarded to the then-Mayor James Marino and then on to City
Manager Faulk. Id.
On December 10, 2021, City Manager Faulk issued an internal
memorandum clarifying that the Governor’s proclamation regarding
Christmas Eve and New Year’s Eve as State holidays only applied to
State employees – not city employees. Id. at Def. Ex. AA. While
the City employees would not work the Friday of Christmas Eve
because Christmas fell on a Saturday, the City employees would not
additionally

have

the

Thursday

prior

off

in

recognition

of

Christmas Eve. Id. at Def. Ex. N, Faulk Dep. at 206:7-207:11.
Soon after on December 12, 2021, Plaintiff tested positive
for Covid-19 and was required to quarantine for at least ten days.
6

Id. at Def. Ex. BB; Pl. Ex. 8, Pl.’s Resp. in Opp., ECF No. 44-8.
Because Plaintiff already exhausted her paid leave time, the City
informed Plaintiff on December 14, 2021, that she would need to
use unpaid time. Def. Ex. CC, Def.’s Mot. Summ. J., ECF No. 24-1;
Pl. Ex. 9; Pl.’s Resp. in Opp., ECF No. 44-9. Plaintiff told the
City that she found this “completely unfortunate and unacceptable”
and believed the policy was “incredibly regressive”. Id. at Def.
Ex. CC.
On the same day, Plaintiff emailed the Mayor, the City Council
members, and several City employees to express her grievance with
having to use unpaid leave for Covid-19. Def. Ex. DD, Def.’s Mot.
Summ. J., ECF No. 24-1; Pl. Ex. 10, Pl.’s Resp. in Opp., ECF No.
44-10. Plaintiff also claimed in her email that the City Manager
and Human Resources Coordinator took away her donated leave time.
Id. In contravention to the Handbook’s grievance policy, Plaintiff
did not first raise the issue of unpaid leave for Covid-19 with
her direct supervisor. Def. Ex. B, Spatafore Dep. at 152:1-153:2,
231:2-7. See Id. at Def. Ex. J (“An employee with a grievance must
follow

the

procedural

guidelines

established

for

resolving

grievances.. . .STEP 1: The grievant must attempt to resolve the
problem with his/hers immediate supervisor.”).
The next day, Plaintiff posted a comment to a post on the
City’s official Facebook page regarding a Christmas Luncheon. Id.
at Def. Ex. EE. The comment read:
7

I would hardly call Cost of Living Adjustment
a raise. If I remember correctly, it's maybe
an extra $5.00 per pay. I have been there 7
years and never received a "raise". I however
do appreciate the $200 Christmas bonus.
The employee party is a nice gesture. However,
I'd much rather be “appreciated” every day at
work by being treated with respect by the city
manager.
Also
the
Governor
recently
declared
Christmas Eve and New Year's Eve as holiday s
- but the City Manager stated he does not have
to follow the governors directives and we will
work on Christmas Eve and New Year's Eve.
How's that for appreciation.
Id. Plaintiff then posted the December 10, 2021 internal memorandum
in the comment section. Id.
On or about December 15, 2021, Plaintiff again messaged
Justine Marino regarding grievances with her employment, asking
them to be shared with her husband. Id. at Def. Ex. FF. Spatafore
acknowledged that she violated the grievance policy by contacting
the then-Mayor’s wife and asking that the information be passed
along, instead of going to her direct supervisor. Id. at Def. Ex.
B, Spatafore Dep. at 200:21-201:21.
The next day, the City posted on Facebook that City Hall would
be closed on December 24, 2021 and December 27, 2021. Id. at Def.
Ex. GG; Pl. Ex. 11, Pl.’s Resp. in Opp., ECF No. 44-11. Plaintiff
again posted the internal memorandum to the comment section of the
City’s posting and commented, “I am questioning as when employees
previously asked if we would receive Christmas Eve and New Year's
8

Eve going forward, we received a memo stating we would not.” Id.
Notably, Plaintiff and all other City employees did not work on
Christmas Eve because Christmas fell on a Saturday. Def. Ex. B,
Spatafore Dep. at 155: 11-159: 18.
Ultimately, the City terminated Plaintiff’s employment on
December

20,

2021,

due

to

“issues

including

insubordination,

insolence, and unsolicited distribution of internal documents.”
Id. at Def. Ex. FF; Pl. Ex. 13, Pl.’s Resp. in Opp., ECF No. 4413. According to the Defendant, the insubordination related to
Plaintiff violating the City’s grievance policy and Plaintiff’s
“chronic absenteeism”, including improper call-offs and extended
lunch breaks. ECF No. 24 at p. 11. The distribution of internal
documents referred to the December 10, 2021 internal memorandum
Plaintiff posted on Facebook twice. Id. Further, the insolence
referred

to

Plaintiff

claiming

the

City

did

not

follow

the

discharged

in

Governor’s directives. Id.
In

contrast,

retaliation
because

she

for
has

Plaintiff

using

FMLA

Crohn’s

claims
leave,

disease

she
was

and

was

discriminated

suffers

from

against

an

eating

disorder, and that she was retaliated against for speaking on a
matter of public concern as a private citizen. ECF No. 44.
III. LEGAL STANDARD
Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
9

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
‘the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “make a sufficient showing on an essential
element of its case with respect to which it has the burden of
proof.” Id. at 317–18.
Summary judgment is proper “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving

party,

there

[being]

no

‘genuine

issue

for

trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587

(1986).

favorable

to

The

Court

the

views

non-moving

the

evidence

party

and

in

draws

the
any

light

most

reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.
56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc).
IV.

DISCUSSION

For the following reasons, Plaintiff’s claims for (1) Family
and

Medical

Leave

Act

(“FMLA”)

retaliatory

discharge,

(2)

disability discrimination under the West Virginia Human Rights
Act, and (3) retaliatory discharge in violation of a substantial
10

public policy do not the survive summary judgment challenge and
Defendant’s motion is GRANTED.
A. FMLA Retaliatory Discharge
Defendant’s Motion for Summary Judgment as to Count One is
granted because Plaintiff failed to show the City’s proffered
reason for discharge was pretext for FMLA retaliation. “FMLA
entitles eligible employees to take ‘12 workweeks of leave’ during
a 12-month period for a qualifying ‘serious health condition that
makes the employee unable to perform the functions of’ [her] job.”
Adkins v. CSX Transp., Inc., 70 F.4th 785, 795 (4th Cir. 2023)
(quoting 29 U.S.C. § 2612(A)(1)(D)). “Under 29 U.S.C. § 2615(a)(2),
employers

may

not

retaliate

against

employees

for

exercising

rights under the FMLA.” Cumpston, 2018 WL 4855216, at *3 (Dotson
v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009)).
An FMLA plaintiff claiming retaliation must make a prima facie
case showing that (1) “[s]he engaged in protected activity”; (2)
“that the employer took adverse action against [her]”; and (3)
“that the adverse action was causally connected to the plaintiff's
protected activity.”

Vannoy v. Fed. Rsrv. 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)).
Under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the burden then shifts to the
defendant to provide “a legitimate, nonretaliatory reason for
11

taking the employment action at issue.” Hannah P. v. Coats, 916
F.3d 327, 347 (4th Cir. 2019). “The FMLA does not prevent an
employer

from

terminating

an

employee

for

poor

performance,

misconduct, or insubordinate behavior.” Vannoy, 827 F.3d at 30405 (finding the employee’s misconduct, failure to communicate
regarding absences, and failure to complete a portion of his
performance

improvement

plan

qualified

as

legitimate,

non-

discriminatory reasons for terminating plaintiff). The Court need
not decide whether an employer’s discharging an employee was “wise,
fair, or correct” and does not “sit as a kind of super-personnel
department weighing the prudence of employment decisions made by
firms charged with employment discrimination.” Feldman v. L. Enf't
Assocs. Corp., 752 F.3d 339, 350 (4th Cir. 2014).
“Once the plaintiff proffers evidence establishing [her]
prima facie case, and the employer offers a non-retaliatory reason
of

the

adverse

action,

the

plaintiff

‘bears

the

burden

of

establishing that the employer's proffered explanation is pretext
for FMLA retaliation.’” Vannoy, 827 F.3d at 304. “To do so, [the
plaintiff]

must

offer

evidence

that

tends

to

show

that

the

defendant[‘s] explanation is not credible, or that retaliation is
the most likely explanation.” Cumpston, 2018 WL 4855216, at *4
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000)). “[A] plaintiff's own assertions of discrimination in
and of themselves are insufficient to counter substantial evidence
12

of legitimate non-discriminatory reasons for a discharge.” Dockins
v.

Benchmark

Commc'ns,

176

F.3d

745,

749

(4th

Cir.

1999).

“Accordingly, to survive summary judgment on an FMLA retaliation
claim, ‘the plaintiff 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., retaliation.’” Waag v. Sotera
Def. Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (Sharif v.
United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016)).
Defendant

first

argues

that

there

is

no

evidence

that

Spatafore’s discharge was causally connected to her FMLA use
because

her

Plaintiff

in

FMLA

leave

soliciting

was

approved,

donated

paid

and
leave

the

City

time

assisted

from

other

employees. ECF No. 24 at p. 13. Furthermore, the City permitted
Plaintiff to take longer lunch breaks and work later in the day to
accommodate her therapy attendance. Id. Second, Defendant asserts
the actual reason for Plaintiff’s discharge was her violation of
the City’s grievance policy and posting the December 2021 internal
memorandum on Facebook twice. Id. at p. 14.
Plaintiff in contrast asserts that she has established a prima
facie case of FMLA retaliatory discharge. ECF No. 44 at p. 9.
Plaintiff claims that to survive summary judgment all she must
show is that her FMLA leave was a motivating factor in her
discharge. Id. Plaintiff asserts she has created “inferences of
13

discrimination” and that the case must go to the jury, even if
Defendant has set forth a non-discriminatory reason. Id. at p. 10.
Plaintiff’s claimed inference of discrimination is the “proximity
in time between when Plaintiff applied for and received FMLA leave
and the adverse employment actions taken.” Id. at p. 11. Plaintiff
further claims that the City’s cited reasons for terminating
Plaintiff are pretextual and that there is evidence of disparate
treatment. Id. at pp. 13-14.
Here,
retaliation

the

Court

fails.

agrees

The

that

Court

Plaintiff’s

assumes

without

claim

for

FMLA

deciding

that

Plaintiff made a prima facie case of retaliation. Nonetheless,
Plaintiff’s claim fails because the City provided evidence of a
legitimate, nonretaliatory reason for taking the employment action
and Spatafore failed to proffer any evidence that the City’s reason
was mere pretext.
Under

the

McDonnell-Douglas

burden

shifting

framework,

Defendant provided sufficient evidence to support that Plaintiff
was

discharged

lawfully.

The

undisputed

record

shows

that

Plaintiff posted an internal memorandum on Facebook twice, along
with comments, and ignored the grievance procedure when she went
above her direct supervisor to contact the Mayor and City Council
to complain about the Covid-19 leave policy. Moreover, the record
shows that Plaintiff had received verbal warnings for taking
extended lunches and failing to follow leave procedures – all
14

before she took FMLA leave. The City is well within its right to
discharge

an

employee

for

poor

performance,

misconduct,

and

insubordinate behavior. The conduct presented in the record falls
within this category.
Moreover, Plaintiff’s proximity argument is not persuasive or
sufficient
pretextual.

to
As

establish
Defendant

the

City’s

points

reason

out

in

for

its

discharge

reply,

was

temporal

proximity must be “very close” in adverse employment actions.
Kinsley v. W. Virginia Univ. Alumni Ass'n, Inc., 2020 WL 13698876,
at *3 (N.D.W. Va. Mar. 16, 2020) (finding a three-month lapse
between

FMLA

leave

approval

and

application

for

promotion

insufficient); Clark County School Dist. v. Breeden, 532 U.S. 268,
273 (2001) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir.

1997)

(finding

a

3-month

period

insufficient)).

Here,

Plaintiff was approved for FMLA leave in July 2021 and returned to
work in September 2021. Plaintiff was not discharged until December
2021. Thus, there was approximately five months between her FMLA
request and her discharge, and approximately a three-month lapse
between her return to work and her discharge. Thus, the timing
does

not

indicate

an

inference

of

discrimination

and

is

insufficient to overcome the City’s legitimate, non-discriminatory
reason.
Furthermore,

Plaintiff’s

alleged

comparator

evidence

is

insufficient because the claimed comparators are not similarly
15

situated. To plausibly use comparators as evidence of pretext, the
Plaintiff must provide “evidence that other employees who were
similarly

situated

to

the

plaintiff

(but

for

the

protected

characteristic) were treated more favorably.” Cowgill v. First
Data Techs., Inc., 41 F.4th 370, 381 (4th Cir. 2022) (quoting Laing
v. Federal Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013)). When
evaluating

whether

another

employee

qualifies

as

a

proper

comparator, a court considers whether they “dealt with the same
supervisor, [were] subject to the same standards and[,] . . .
engaged

in

the

same

conduct

without

such

differentiating

or

mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it.” Id. (quoting Haywood v.
Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (per curium)).
While

Plaintiff

provides

information

regarding

other

employees who were not discharged for their alleged misconduct,
none

are

sufficiently

similar

to

Plaintiff

to

serve

as

a

comparator. The record shows that the claimed comparators were
union employees subject to collective bargaining agreements or
police officers subject to the Civil Service Commission. Aff.
Tiffany Fell, Def. Ex. M, Def. Reply, ECF No. 59. Thus, these
employees did not have the same supervisor and were not subject to
the same standards as Plaintiff. Moreover, by Plaintiff’s own
admission, these employees did not engage in the same conduct as
her. ECF No. 44 at p. 14 (“there are at least seven other employees
16

of

Defendant

who

committed

much

more

serious

violations

of

policies) (emphasis added). Thus, Plaintiff cannot rely on a
comparator argument to establish pretext.
Accordingly, Defendant’s Motion for Summary Judgment [ECF No.
23] as to the FMLA retaliation claim is GRANTED and Count 1 of
Plaintiff’s Complaint [ECF No. 1-3] is DISMISSED.
B. WVHRA Disability Discrimination
Defendant’s Motion for Summary Judgment as to Count Two is
granted because there is no competent evidence that Plaintiff’s
discharge was unlawful. To succeed on a claim for disability
discrimination, a plaintiff must establish she is “a member of a
protected class,” “that the employer made an adverse decision
concerning the plaintiff,” and “but for the plaintiff’s protected
status, the adverse decision would not have been made.” Woods v.
Jefferds Corp., 824 S.E.2d 539, 547 (W. Va. 2019).
The West Virginia Human Rights Act (“WVHRA”) states
[i]t shall be an unlawful discriminatory
practice, unless based upon a bona fide
occupational qualification, . . . for any
employer to discriminate against an individual
with respect to compensation, hire, tenure,
conditions or privileges of employment if the
individual is able and competent to perform
the services required even if such individual
is . . . disabled.
W. Va. Code Ann. § 5-11-9(1). The WVHRA defines “disability” as “a
mental or physical impairment which substantially limits one or
more of such person’s major life activities,” “[a] record of such
17

impairment,” or [b]eing regarded as having such an impairment.” W.
Va. Code § 5-11-3(m). “Major life activities” are “caring for one’s
self,” and other functions such as “walking, seeing, hearing,
speaking, breathing, learning, and working[.]” Id. § 5-11-3(m)(1).
“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.” Cumpston, 2018 WL
4855216, at *6. To set forth a prima facie case of impermissible
employment

discrimination

under

the

WVHRA,

Spatafore

must

establish: (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. Id. (citing Syl. Pt. 3, Conaway v.
E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986)). To
satisfy

the

causation

element

of

the

prima

facie

case,

the

plaintiff must “show some evidence which would sufficiently link
the employer's decision and [her] 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.
(citing Conaway, 358 S.E.2d at 429-30).
Once a plaintiff establishes a prima facie case of employment
discrimination, the burden shifts to the defendant to advance a
non-discriminatory reason for the plaintiff’s dismissal. Conaway,
358 S.E.2d at 430. Importantly, the employer’s reason “need not be
18

a particularly good one.. . .The reason can be any other reason
except that the plaintiff was a member of a protected class.” Id.
Evidence of a legitimate and nondiscriminatory reason for the
dismissal

is

sufficient

to

rebut

the

employee’s

prima

facie

showing. Ford Motor Credit Co. v. W. Virginia Hum. Rts. Comm'n,
696 S.E.2d 282 (W. Va. 2010). The burden then returns 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.” Cumpston, 2018 WL 4855216, at *6. “In
other words, ‘[t]o get to the jury, [the plaintiff] must offer
sufficient

evidence

that

the

[defendant’s]

explanation

was

pretextual to create an issue of fact.’” Id. (quoting Skaggs v.
Elk Run Coal Co., Inc., 479 S.E.2d 561, 583 (W. Va. 1996)).
Here, Defendant asserts that Plaintiff’s claim fails because
Plaintiff’s medical conditions did not prevent her from performing
her job duties and she was discharged for non-discriminatory
reasons. ECF No. 24 at p. 14. First, Defendant claims Plaintiff
cannot establish that she suffered from a disability because she
was able to perform all her job’s functions. Id. at p. 15 (citing
Dickerson v. W Virginia State Treasurer's Off, 2020 WL 4354929, at
*4 (W. Va. July 30, 2020). Second, Defendant asserts that Plaintiff
did not offer any evidence to support that she was terminated
because of a disability. Id. at pp. 15-16.

19

In support of Plaintiff’s disability discrimination claim,
she asserts that it is undisputed that she has Crohn’s disease and
suffers from an eating disorder. ECF No. 44 at p. 17. She further
states

that

working

these

because

conditions

she

missed

substantially
six

weeks

of

limited
work

her

while

from
in

a

rehabilitation program. Id. at p. 18. Plaintiff further asserts
that there was a record of her impairment because the City approved
her FMLA leave. Id. at p. 19. Additionally, Plaintiff states that
her disability discrimination claim does not require her to have
sought an accommodation upon returning to work following the
rehabilitation program. Id. at p. 20.
Furthermore, Plaintiff relies upon the time proximity to
support the causation element. Id. She also claims the proffered
discharge reason was pretextual because City staff discussed her
FMLA leave when deciding to terminate her employment. Id. at pp.
20-21.
Plaintiff’s disability discrimination claim cannot survive
summary judgment because Plaintiff failed to create a dispute of
material

fact

over

whether

her

discharge

was

unlawful.

The

disability discrimination claim fails for many of the same reasons
as the FMLA retaliation claim. First, the Court assumes without
deciding that Plaintiff’s eating disorder and Crohn’s disease
qualify as disabilities under the WVHRA. Thus, the Court assumes
Plaintiff is a member of a protected class. Furthermore, there is
20

no dispute that Plaintiff suffered an adverse employment action
when she was discharged in December 2021. Thus, the issue is
whether Plaintiff would have not been discharged, but for her
claimed disability.
As with the FMLA claim, Plaintiff relies upon temporal
proximity to support the causation element and to support pretext.
Even assuming that the proximity argument would be sufficient to
create the inference of discrimination for Plaintiff’s prima facie
case, the record does not contain sufficient evidence to support
that the termination was unlawful.
Defendant set forth evidence of its legitimate reasons for
discharging

Plaintiff

-

insubordination,

insolence,

and

unsolicited distribution of internal documents. The complained-of
misconduct took place after Plaintiff returned from her FMLA leave
and serves as intervening misconduct to cut off any presumption
that her discharge was related to her claimed disabilities. The
record

supports

rehabilitation

that

efforts

the
by

City

was

promptly

supportive
approving

of
her

Plaintiff’s
FMLA

leave,

coordinating paid leave donations, and accommodating Plaintiff’s
work schedule to allow periodic therapy appointments.
Moreover, Plaintiff does not dispute that she engaged in the
very misconduct underlying her discharge. The City is not obligated
to refrain from discharging an insubordinate or insolent employee

21

simply because she has a disability.2 And, as with the FMLA
retaliation claim, Plaintiff’s temporal proximity argument is
insufficient to create a dispute of fact for the jury. Plaintiff’s
discharge took place close-in-time to the Facebook posts and the
email to the Mayor and City Council. Thus, the proximity counts
against Plaintiff’s position.
Accordingly, Plaintiff’s claim for disability discrimination
fails because there is no dispute of fact that she was discharged
for

legitimate,

non-discriminatory

reasons.

Thus,

Defendant’s

Motion for Summary Judgment [ECF No. 23] is GRANTED as to the
disability

discrimination

claim

and

Count

Two

of

Plaintiff’s

Complaint [ECF No. 1-3] is DISMISSED.
C. Harless Retaliatory Discharge
Defendant’s Motion for Summary Judgment as to Count Three is
granted because Plaintiff’s Facebook postings are not protected
speech. Plaintiff’s third cause of action alleges that she was
terminated in violation of a substantial public policy of the state
of West Virginia.

The Court is unpersuaded by Plaintiff’s argument that her discharge
was discriminatory because the City discussed her health conditions and
FMLA leave when planning her discharge. It is entirely reasonable for
an employer to consider potential liabilities with legal counsel when
making employment decisions. The record makes clear that Plaintiff’s
Crohn’s disease, eating disorder, or FMLA leave were not a basis for her
discharge. See Def. Ex. T, ECF No. 24-1 (“We are still moving forward
with termination of Dominique Medina based upon her contact with
council/Justine Marino. Further adding fuel to the decision are the FB
posts.”).
2

22

The rule that an employer has an absolute
right to discharge an at will employee must be
tempered by the principle that where the
employer’s motivation for the discharge is to
contravene some substantial public policy
principle, then the employer may be liable to
the employee for damages occasioned by this
discharge.
Syl., Harless v. First Nat’l Bank of Fairmont, 246 S.E.2d 270 (W.
Va. 1978). To succeed on a Harless retaliatory discharge, a
plaintiff must prove: (1) “[t]hat a clear public policy existed
and was manifested in a state or federal constitution, statute or
administrative regulation, or in the common law”; (2) “[t]hat
dismissing employees under circumstances like those involved in
the plaintiff’s dismissal would jeopardize the public policy”; (3)
“[t]he plaintiff’s dismissal was motivated by conduct related to
the public policy”; and (4) “[t]he employer lacked overriding
legitimate business justification for the dismissal.” Burke v.
Wetzel Cnty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018). “The
determination whether a substantial public policy exists is a
question of law for the court.” Frohnapfel v. ArcelorMittal Weirton
LLC, 100 F. Supp. 3d 556, 562–63 (N.D.W. Va. 2015)
When an employee makes a prima facie case of
discrimination, the burden then shifts to the
employer to prove a legitimate, nonpretextual,
and nonretaliatory reason for the discharge.
In rebuttal, the employee can then offer
evidence that the employer’s proffered reason
for the discharge is merely a pretext for the
discriminatory act.

23

Syl. Pt. 4, Birthisel v. Tri-Cities Health Servs. Corp., 424 S.E.2d
606 (W. Va. 1992) (internal citation omitted).
Specifically, Plaintiff claims that her discharge was in
retaliation for making comments relating to an issue of public
concern in violation of the West Virginia Constitution. ECF No. 13 at ¶ 46. Article III, Section 7 of the West Virginia Constitution
provides:
No law abridging the freedom of speech, or of
the
press,
shall
be
passed;
but
the
Legislature may, by suitable penalties,
restrain the publication or sale of obscene
books, papers, or pictures, and provide for
the punishment of libel, and defamation of
character, and for the recovery, in civil
actions, by the aggrieved party, of suitable
damages for such libel, or defamation.
W. Va. Const. art. III, § 7. Because the First Amendment of the
United

States

Constitution

and

the

State

Constitution

are

“virtually identical in pertinent parts,” cases interpreting the
freedom of speech protections are considered interchangeably.
State By & Through McGraw v. Imperial Mktg., 472 S.E.2d 792, 805
n.43 (W. Va. 1996).
Under Pickering v. Board of Education, 391
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968), public employees are entitled to be
protected from firings, demotions and other
adverse employment consequences resulting
from the exercise of their free speech rights,
as well as other First Amendment rights.
However, Pickering recognized that the State,
as an employer, also has an interest in the
efficient and orderly operation of its affairs
that must be balanced with the public
24

employees' right to free speech, which is not
absolute.
Syl. Pt. 4, Alderman v. Pocahontas Cnty. Bd. of Educ., 675 S.E.2d
907, 910 (W. Va. 2009); Syl. Pt. 3, Orr v. Crowder, 173 335, 315
S.E.2d 593 (W.Va. 1983).
There are some general restrictions on a public employee’s
right to free speech. Id. at 917.
First, an employee's speech, to be protected,
must be spoken as a citizen on a matter of
public concern.. . .The second factor that is
invoked considers statements that are made
with the knowledge that they were false or
with reckless disregard of whether they were
false, and such statements are not protected.
The third factor that is invoked considers
statements made about persons with whom there
are close personal contacts that would disrupt
discipline or harmony among coworkers or
destroy personal loyalty and confidence, and
such
statements
may
not
be
protected.
Id. at Syl. Pt. 5 in part. “If the employee did not speak as a
citizen on a matter of public concern, then the employee has no
First Amendment cause of action based on the employer's reaction
to the speech.” Id. The public employee bears the burden “to show
that conduct is constitutionally protected and, further, that this
conduct was a substantial or motivating factor in the employment
decision.” Id. at Syl. Pt. 6 in part. If the public employee meets
this burden, the public employer then “must show by a preponderance

25

of the evidence that it would have reached the same decision. . .
in the absence of the protected conduct.” Id.
“Speech involves a matter of public concern if it affects the
social, political, or general well-being of a community.” Bloom v.
Bd. of Educ. of Monongalia Cnty., 2013 WL 5966398, at *3 (N.D.W.
Va. Nov. 8, 2013) (quoting Edwards v. City of Goldsboro, 178 F.3d
231,

246

(4th

Cir.

1999)).

However,

“[p]ersonal

grievances,

complaints about conditions of employment, or expressions about
other matters of personal interest do not constitute speech about
matters

of

public

concern

that

are

protected

by

the

First

Amendment.” Id. “In deciding whether certain speech falls on the
‘public

concern’

or

‘purely

personal’

side

of

the

line,

we

naturally look to the ‘content, context, and form of the speech at
issue in light of the entire record.’” Carey v. Throwe, 957 F.3d
468, 475 (4th Cir. 2020) (internal citations omitted).
Here, Defendant argues that Plaintiff’s Harless claim fails
for several reasons. No. 24 at p. 18. First, the City contends
Spatafore was not speaking as a private citizen on a matter of
public concern when she commented on the Facebook posts because
she identified herself as a City employee in the post comment and
on her Facebook profile. Id. at pp. 18-19. Furthermore, the
Handbook provides a social media policy for employees which states:
An employee who identifies on a social media
account the employee's affiliation with the
City, and does not disclaim speaking on behalf
26

of the City in the social media profile or in
a specific post, will be deemed to be using
social media as a City employee.
. . .
City employees must make it clear when they
are speaking for themselves and not on behalf
of the City. If employees publish content on
any website outside of City control and it has
something to do with the work they do or
subjects associated with the City, use a
disclaimer such as this: "The postings on this
site are my own and don't necessarily
represent the City's positions or opinions.
Def. Ex. J at 109-110, ECF No. 24-1. Defendant additionally states
that the internal memorandum Plaintiff posted was not a matter of
public concern. ECF No. 24 at p. 20.
Second,

Defendant

constitutionally
Specifically,

argues

protected

Plaintiff

Plaintiff’s

because

posted

the

that

posts

City

posts
were

employees

are
false.
would

not
Id.
be

working Christmas Eve, even though the employees were already
scheduled to be off on December 24, 2021. Id. And third, Defendant
claims that Plaintiff’s posts are not protected because they
involve persons with close personal contacts which could disrupt
the discipline and harmony for City employees. Id. at p. 21. For
example, Defendant argues that Plaintiff’s claim that the City
Manager does not follow the Governor’s directives indicates that
Mr. Faulk acted wrongfully, when he did not. Id.

27

Plaintiff, in contrast, asserts that when considering the
content, form, and context of her speech, she was speaking as a
private citizen on a matter of public concern. ECF No. 44 at p.
24. First, Plaintiff claims she was speaking as a private citizen
because she made the posting from home on her personal Facebook
account, while she was not working. Id. Second, Plaintiff argues
the matter of public concern she was speaking on was whether City
Hall would be open during the holidays. Id. at p. 27. Third,
Plaintiff argues that that there is no evidence that Plaintiff’s
speech disrupted the City’s operations. Id. at p. 31. Finally,
Plaintiff asserts that her discharge was caused by the exercise of
her free speech rights based on the timing and the City’s proffered
reasons for termination. Id. at p. 31.
Here, Plaintiff’s Harless claim fails because she was not
speaking as a private citizen on a matter of public concern. First,
the West Virginia Constitution and its free speech protections
constitute a substantial public policy to support a Harless claim.
However, the record demonstrates that Plaintiff’s speech at issue
was not protected – considering the content, form, and context.
First, Plaintiff was not speaking as a private citizen.
Plaintiff identified herself as a seven-year employee of the City
in the Facebook comment on December 13, 2021. Furthermore, she
would not have possessed the internal memorandum clarifying the
Governor’s Order but for her employment with the City, and thus
28

could not have posted it if she was not an employee. Moreover,
Plaintiff’s

comments

did

not

include

any

of

the

disclaimers

required of a City employee posting on Facebook as an identified
employee. Spatafore did not make it clear that she was speaking
for herself and not behalf of the City when discussing topics
related to work and the City. Plaintiff was provided with the
social media policy and expected to follow its policies. Thus,
Plaintiff was not speaking as a private citizen.
Second, despite Plaintiff’s characterization of the Facebook
comments, they did not relate to issues of public concern. The
purpose of the Facebook comments was not to discuss whether City
Hall was going to be open on Christmas Eve and New Year’s Eve. The
December 13, 2021 comment discussed City employee pay raises and
bonuses, the ways in which City employees are appreciated, and
allegations that employees would need to work on Christmas Eve and
New Year’s Eve. Whether City Hall is open on a given day and
whether employees are required to work on a certain day are not
the same topics. Plaintiff was clearly not making the comment to
inform citizens on when City Hall and its services would be
available. No, Plaintiff was lamenting how she, as an employee,
felt unappreciated because she did not receive Christmas Eve as a
holiday from work. The same is true of Plaintiff’s December 16,
2021 Facebook comment. The City’s Facebook post itself informed
citizens that City Hall would be closed on December 24, 2021 and
29

December 27, 2021. Plaintiff’s comment, however, only related to
the matter of when employees would be working. Employee schedules
are not a matter of public concern.
While these findings are enough to show that Plaintiff’s
Harless claim fails, the Court also notes that Spatafore’s comments
are additionally not protected because they were made with, at
least, a reckless disregard of their falsity. City employees did
not work on December 24, 2021, but Plaintiff’s Facebook comments
indicated that employees would be working Christmas Eve. Rather,
Plaintiff wanted the City to give employees an additional paid day
off

in

recognition

of

Christmas

Eve

on

December

23,

2021.

Furthermore, it cannot be legitimately argued that Spatafore’s
comments

regarding

City

employee

pay,

working

hours,

and

appreciation could not disrupt operations of the City or lead to
employee conflict.
When looking at the content, form, and context of Plaintiff’s
Facebook
matters

comments,
of

a

none

public

of

Plaintiff’s

concern

to

statements

warrant

related

protection.

to

Rather,

Plaintiff expressed her personal grievances and complaints about
conditions of her employment online. Thus, the speech was not
protected and served as a lawful basis for Plaintiff’s termination.
Accordingly, Defendant’s Motion for Summary Judgment [ECF No. 23]
as to Count Three is GRANTED and Count Three of Plaintiff’s
Complaint [ECF No. 1-3] is DISMISSED.
30

V.

CONCLUSION

For the foregoing reasons, Defendant, City of Clarksburg’s
Motion for Summary Judgment [ECF No. 23] is GRANTED and Plaintiff’s
Complaint [ECF No. 1-3] is DISMISSED WITH PREJUDICE. Additionally,
all other pending motions are hereby DENIED AS MOOT [ECF Nos. 61,
62, 70].
This action is thus STRICKEN from the Court’s active docket
and the Clerk is DIRECTED to enter judgment in favor of the City
of Clarksburg.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record by the CM/ECF system.
DATED:

September 23, 2024

____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

31