Councell et al v. Homer Laughlin China Company

Filing 110

MEMORANDUM OPINION AND ORDER DENYING 45 Motion to Amend; GRANTING IN PART AND DENYING IN PART 47 Defendants' Motion to Strike Plaintiffs' First Amended Complaint: GRANTING 47 Defendants' Motion to deny the plaintiffs' motion to amend; DENYING AS MOOT 47 Defendants' motion to enjoin and DENYING 47 Defendants' motion for sanctions. DENYING AS MOOT 49 Motion to Stay; GRANTING 57 defendants' motion for extension of page limit; The Defendants' mot ion for summary judgment and amended motion for summary judgment 59 and 62 are GRANTED. All remaining motions in limine : 64 Motion in Limine; 65 Motion in Limine, 66 Motion in Limine 67 Motion in Limine; 69 plaintiffs' motion to St rike defendant's motion in limine and 92 motion for leave to file additional motion in limine are DENIED AS MOOT. Plaintiffs' 79 Motion for Disclosure of jury questionnaire and Rule 38 jury demand is DENIED AS MOOT. This case is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 3/15/12. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL L. COUNCELL and CHARLES E. COUNCELL,
Plaintiffs,
v.
THE
aka
aka
aka

Civil Action No. 5:11CV45
(STAMP)
HOMER LAUGHLIN CHINA COMPANY,
HLC, aka HOMER LAUGHLIN,
FIESTAWARE, aka HOMER LAUGHLIN CHINA,
NEWELL BRIDGE AND RAILWAY CO.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO AMEND,
DENYING IN PART AND GRANTING IN PART
DEFENDANT’S MOTION TO STRIKE
PLAINTIFFS’ FIRST AMENDED COMPLAINT,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND AMENDED MOTION FOR SUMMARY JUDGMENT,
DENYING AS MOOT MOTIONS IN LIMINE,
MOTION TO STRIKE MOTION IN LIMINE, AND MOTION
FOR LEAVE TO FILE ADDITIONAL MOTION IN LIMINE
AND DENYING AS MOOT PLAINTIFFS’
REQUEST FOR JURY QUESTIONNAIRE
I.

Procedural History

The husband and wife plaintiffs filed this civil action in the
Circuit Court of Hancock County, West Virginia.

Mrs. Councell

seeks compensatory and punitive damages, and attorney’s fees and
costs from the defendant, Homer Laughlin China Company (hereinafter
“HLC”), her former employer, as a result of her termination.

Mr,

Councell seeks damages for loss of consortium derivative of Mrs.
Councell’s claims.

The defendant then removed the action to this Court on the
basis of both federal question and diversity jurisdiction.

This

Court denied plaintiffs’ subsequent motion to remand finding both
that a claim by Mrs. Councell for insurance discrimination was
completely preempted by the Employee Retirement Income Security Act
(“ERISA”), specifically § 510 of the Act, 29 U.S.C. § 1140, and
that removal based upon diversity jurisdiction was also sufficient.
In the same memorandum opinion and order, this Court granted in
part and denied in part the defendant’s motion to dismiss.

This

Court also granted the plaintiffs leave to amend their complaint,
but only to cure the deficiencies in their original complaint, and
directed the plaintiffs to file their amended complaint in the form
of a more definite statement on or before October 21, 2011.
On October 24, 2011, the plaintiffs filed an untimely amended
complaint, which also included new claims, in contravention of this
Court’s order requiring the plaintiffs’ amended complaint to take
the form of a more definite statement and to not include any “new
theories of liability or claims for relief.”

The plaintiffs also

filed a motion which requested leave to amend to add the new claims
which they had already included in their untimely filed amended
complaint.
claim

of

The new claims that the plaintiffs seek to add are a
retaliatory

discharge

and

a

claim

of

detrimental

reliance/breach of employment agreement. The plaintiffs argue that
these claims were only discovered during the course of discovery,

2

and thus were unknown to plaintiffs’ counsel at the time that the
original complaint was filed.
The defendant filed a response in opposition, arguing that the
plaintiffs’ request violated a court order, and that granting leave
to amend was not appropriate.

The defendant further argued that

the plaintiffs’ amended complaint was untimely, and asked this
Court to impose sanctions and enjoin a state court action brought
by the plaintiffs alleging the claims sought to be added by amended
complaint.

The plaintiffs replied, offering response to the

defendant’s arguments and requesting an enlargement of time to file
their

amended

complaint,

admitting

that,

as

a

result

of

an

oversight on the part of their counsel, it was filed three days
after the deadline set by this Court.
Following the full briefing of these motions, the defendant
also filed a motion for summary judgment, arguing that no issue of
material fact has been raised by the plaintiffs with regard to any
of the claims in either of their complaints, and that, as a result,
summary judgment should be granted in its favor.

The plaintiffs

responded in opposition to this motion, and the defendant filed a
timely reply.
These

motions

are

now

disposition by this Court.

fully

briefed

and

are

ripe

for

For the reasons stated below, the

plaintiffs’ motion to file an amended complaint will be denied.
However, the plaintiffs’ motion for enlargement of time to file the

3

amended complaint previously allowed by this Court will be granted.
The new claims added to the plaintiffs’ amended complaint will be
stricken, the defendant’s motion to enjoin the plaintiffs’ state
court action will be denied, as will its motion for sanctions.
Finally, the defendant’s motion for summary judgment will be
granted, and this case will be dismissed.1
II.

Facts

The wife plaintiff in this case, Carol Councell, was employed
by HLC for approximately 15 years when she was terminated on
November 2, 2010 at the age of 58.

In 1995 or 1996, Mrs. Councell

underwent a “bladder tuck” procedure as a result of a bladder
suspension

problem,

which

she

claims

is

aggravated

by

heavy

lifting.

Mrs. Councell also allegedly suffers from a heart valve

problem,

asthma,

and

other

“female

anatomy

problems”

which

eventually necessitated a hysterectomy and other medical procedures
in December 2008 after which Mrs. Councell took medical leave for
six weeks and for which she made claims to HLC’s self-insured
health plan.
Mrs. Councell contends that, due to her age, gender, and her
alleged disability, as well as because she was making claims to the

1

Despite the fact that this Court previously informed the
parties of its intent to grant summary judgment for the defendant,
and in direct contravention of this Court’s direction to file no
further motions with respect to that ruling, the plaintiffs have
filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 41(a)(2). This motion is denied by separate memorandum
opinion and order.
4

company health insurance plan, HLC, through its managers and
personnel, began to make false notations in her file in order to
“build the record” to terminate her.

Mrs. Councell also argues

that, despite this negative performance documentation in her file,
her productivity had not decreased.

Finally, Mrs. Councell argues

that, in order to attempt to force her to resign from her position,
HLC created a “culture of mean-spirited, age based, gender based,
and disability based discrimination.”

Mrs. Councell says that she

was eventually terminated due to these discriminatory motivations,
and that in addition to monetary damages and pain and suffering on
Mrs. Councell’s part as a result of her termination, Mr. Councell
also suffered injury in the form of loss of her spousal consortium.
III.
A.

Applicable Law

Motion to Amend
Federal

Rule

of

Civil

Procedure

15(a)(1)(A)

states,

in

pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”

If a party seeks to amend its pleadings in all other

cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule

15(a)

The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).

grants

the

district

court

broad

discretion

concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith or dilatory

5

motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or]
futility of amendment.”

Foman v. Davis, 371 U.S. 178, 182 (1962);

see also Ward Elec. Serv. v. First Commercial Bank, 819 F.2d 496,
497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743 F.2d 1049,
1052 (4th Cir. 1984).
B.

Motion for Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.

Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).

However, as the United States Supreme

6

Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but
. . . must set forth specific facts showing that there is a genuine
issue for trial.”

Id. at 256.

“The inquiry performed is the

threshold inquiry of determining whether there is the need for a
trial -- whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”
Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406,
414 (4th Cir. 1979) (Summary judgment “should be granted only in
those cases where it is perfectly clear that no issue of fact is
involved and inquiry into the facts is not desirable to clarify the
application of the law.” (citing Stevens v. Howard D. Johnson Co.,
181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

Summary

judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.

See Oksanen v. Page

Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502

7

U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.

See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).
IV.
A.

Discussion

Motion to Amend
This

Court’s

memorandum

opinion

and

order

denying

the

plaintiffs’ motion to remand and granting in part and denying in
part, the defendant’s motion to dismiss (ECF No. 35.) unambiguously
delineated two specific requirements with regard to the leave that
this Court granted to the plaintiffs to file an amended complaint.
First, this Court mandated that, because leave was granted for the
purpose of curing the deficiencies of the plaintiffs’ complaint
alone, “[n]o new causes of action or theories of relief may be
raised in this particular amended complaint that were not alleged
in the original complaint.”
Secondly, this Court directed the plaintiffs to file an
amended complaint that complied with the above mandate “on or
before October 21, 2011.” (emphasis in original).

However, on

October 24, 2011, the plaintiffs filed an amended complaint that
was not only untimely pursuant to the above-described order, but
which also, in direct contravention of this Court’s order, added

8

two new causes of action: retaliatory discharge and detrimental
reliance/breach of employment contract.2
Federal Rule of Civil Procedure 6(b)(1)(B) allows this Court
to excuse the plaintiffs’ failure to timely file their amended
complaint on motion when it is determined that “the party failed to
act because of excusable neglect.” Plaintiffs say the untimeliness
of the amended complaint is the result of a clerical error on the
part of their counsel, and that this constitutes excusable neglect.
This

Court

seriously

excusable in this case.
plaintiffs’

counsel

questions

whether

this

explanation

is

However, without deciding whether or not

has

demonstrated

excusable

neglect,

for

purposes of deciding this case on its merits only, this Court will
allow the first amended complaint to be filed notwithstanding its
untimeliness.
However, the only offering of explanation for why the amended
complaint ignores this Court’s order that no new claims be added is
that a motion to amend was filed contemporaneous to the amended
complaint and that plaintiffs’ counsel believed that it would
“expedite
pleading.”

matters”

to

“includ[e]

all

claims

in

one

amended

Nonetheless, the plaintiffs’ filed amended complaint

goes outside the scope of the leave granted by this Court in its

2

Defendant argues that the plaintiffs have also added a claim
for defamation, but because the original complaint contained a
claim for slander and libel, this Court construes the plaintiffs’
defamation claim as a more definite statement of the slander and
libel claim in the original complaint.
9

memorandum opinion and order on October 11, 2011, and thus, at
least with regard to the new claims added, was filed without leave
of court in contravention of Federal Rule of Civil Procedure
15(a)(2).
Consequently, this Court must strike the plaintiffs’ claims
for

retaliatory

discharge

and

detrimental

reliance/breach

of

employment contract from the first amended complaint (ECF No. 46).
See Peterson v. Airline Pilots Ass’n, 759 F.2d 1161, 1163 (4th Cir.
1985) (noting without objection the district court’s dismissal of
the plaintiff’s second amended complaint because it “went beyond
the scope of the district court’s order.”).
Further, due to undue delay and the prejudice to the defendant
which would result from granting leave to amend, the plaintiffs’
motion for leave to amend must also be denied.

The plaintiffs

argue in support of this motion that they were unaware of the
existence of these claims until they conducted the deposition of
Mrs. Councell’s direct supervisor, Pat Shreve, who stated that she
told Mrs. Councell to “get [her] shit and get out” immediately
following an exchange wherein Mrs. Councell had “complain[ed] to
her that a subordinate female employee was being harassed by a male
employee,” and until they conducted the deposition another of Mrs.
Councell’s superiors, who testified that he had promised that no
changes would be made to Mrs. Councell’s employment when she
returned from medical leave.

(ECF No. 45 *2.) (emphasis in

10

original).
2011.

Both of these depositions were conducted in October

Id.
The May 9, 2011 scheduling order in this case, which was

derived from the parties’ own Federal Rule of Civil Procedure 26(f)
planning

meeting

report,

delineated

that

any

amendments

pleadings were to be made on or before July 22, 2011.3

to
The

plaintiffs’ motion to amend was filed on October 24, 2011 -- more
than three months after this deadline.

When a motion to amend a

pleading is filed after a scheduling order’s deadline for such
motions, “a moving party first must satisfy the good cause standard
of Rule 16(b).

If the moving party satisfies Rule 16(b), the

movant then must pass the tests for amendment under Rule 15(a).”
Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W. Va. 1995); see
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)
(“[A]fter the deadlines provided by a scheduling order have passed,
the good cause standard must be satisfied to justify leave to amend
the pleadings.”).

“Rule 16(b)’s ‘good cause’ standard primarily

considers the diligence of the party seeking the amendment . . . .
[T]he focus of the inquiry is upon the moving party’s reasons for
seeking modification.”

Marcum, 163 F.R.D. at 254 (quoting Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

3

It is noted that the parties suggested and had agreed upon a
June 30, 2011 deadline for amended pleadings.
(ECF No. 9 *3.)
Thus, this Court extended this deadline.
11

The defendant argues that the plaintiffs have not shown good
cause because the nature of the claims is such that the plaintiffs
could not have been unaware of their existence at the time that the
complaint was filed. This Court agrees. The retaliatory discharge
claim apparently derives from an exchange between Mrs. Councell and
her supervisor which eventually led to Mrs. Councell’s termination.
Mrs. Councell testified about this incident in her deposition, and
it

is

clear

to

this

Court

that

the

incident

was

quite

confrontational, and that, based upon Mrs. Councell’s testimony of
her memory of it, the effect that it had upon her and its
relatedness to her termination, was one that would have been
communicated to her counsel in initial meetings.

Further, the

nature of the situation as it was described by Mrs. Councell in her
deposition would have placed her counsel on notice of a possible
retaliation
complaint.

claim

at

the

time

of

the

initial

filing

of

the

Counsel for plaintiffs argues that his clients are not

sophisticated in employment law, and thus would not have known of
the possible significance of this incident.

However, it is clear

for the aforementioned reasons that the incident would have been
communicated to counsel, and that counsel should have recognized
its possible significance at that time.
As for the detrimental reliance/breach of employment agreement
claim, this Court is similarly convinced that the plaintiffs were
on notice of this possible claim at the time of the filing of the

12

original complaint.

Mrs. Councell was a party to the email

exchange upon which this claim is based, and this Court must
conclude that she was in possession of the emails at the time that
the complaint was filed.

Thus, if plaintiffs’ counsel was unaware

of this exchange at the time of filing, it is only as a result of
counsel’s own failure to obtain all necessary employment-related
documents from his clients, and not due to a lack of access to
necessary information prior to discovery.

In addition, this Court

finds it necessary to note that the plaintiffs argue that they were
unaware of this claim until the time that Mr. Brinkman was deposed.
However,

the

deposition

transcript

makes

it

clear

that

the

plaintiffs were in possession of the emails before the deposition,
because they were presented to Mr. Brinkman by plaintiffs’ counsel
at his deposition.

(ECF No. 63 Ex. D *141-42.)

Finally, in addition to the plaintiffs’ failure to demonstrate
cause for the delay in filing this motion to amend, this Court
finds, as it did at the time that it initially granted leave to
file an amended complaint to be construed as a more definite
statement, that the bringing of additional claims at the close of
pretrial litigation would prejudice the defendant.

The plaintiffs

argue that the defendant has not engaged in much discovery in this
case,

and

that

the

claims

sought

landscape of the plaintiffs’ case.

do

not

largely

change

the

However, it is clear from the

docket that discovery has taken place over the course of many

13

months, and that none of this discovery would have focused on a
basis for a retaliation claim or for a breach of employment
agreement

claim.

Both

of

these

new

claims

would

require

significant amounts of information that would not have been sought
in discovery based upon the initial complaint.
Further, the deadline for fact discovery in this case, which
has already been extended by over a month from the original
deadline, was the same day that the plaintiffs filed this motion
for leave to file an amended complaint, and summary judgment
motions were due in one week following the filing of this motion.
Aside from the obvious prejudice that these deadlines would cause
for the defendant should this Court permit the plaintiffs to add
these new claims at this time,4 such permission would unnecessarily
delay this litigation.

This Court, through its discretion in

controlling the expeditious resolution of litigation before it,
declines to further delay this case due to the plaintiffs’ untimely
desire to add claims of which they should have been aware long
before leave was finally sought.

See Link v. Wabash R. Co., 370

U.S. 626, 630 (1962).

4

It is noted that the plaintiffs also opposed extension of
these deadlines had this Court granted leave to amend.
14

B.

Motion for Summary Judgment
As a result of the foregoing, five separate claims5 asserted

by Mrs. Councell, as well as a derivative claim for loss of
consortium by Mr. Councell, remain before this Court and all are
subject to the defendant’s motion for summary judgment.

The Court

will analyze each of the counts in the order in which they were
raised by the plaintiffs in their complaint.
1.

Unlawful Discrimination Claims

Counts I and VII are claims for unlawful discrimination based
upon Mrs. Councell’s gender, age, and disability. Under the WVHRA,
the burden of sustaining this claim follows the burden shifting
framework of Title VII of the Civil Rights Act of 1964, established
by McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04 (1973).
Ford Motor Credit Co. v. W. Va. Human Rights Comm’n, 225 W. Va.
766, 776 (2010).

Thus, initially, Mrs. Councell has the burden of

establishing a prima facie case of discrimination.

A prima facie

case under the WVHRA requires a showing of the following: “(1) That

5

Mrs. Councell raises two counts of unlawful discrimination -Count I simply alleges unlawful discrimination and Count VII
alleges violation of the West Virginia Human Rights Act (“WVHRA”).
However, the WVHRA, when invoked, represents the exclusive remedy
under West Virginia law for the unlawful discrimination which it
proscribes, thus precluding any common law cause of action for
employment discrimination in this case. W. Va. Code § 5-11-13(a);
see also Guevara v. K-Mart Corp., 629 F. Supp. 1189 (S.D. W. Va.
1986).
Further, the plaintiffs vehemently deny that they have
raised any claims under federal law. Thus, this Court concludes,
as it must, that these two counts are actually a single claim for
employment discrimination under the WVHRA.
15

the plaintiff is a member of a protected class. (2) That the
employer made an adverse decision concerning the plaintiff. (3) But
for the plaintiff’s protected status, the adverse decision would
not have been made.” Id. (internal citations omitted). While this
burden is not an “onerous” one, it must be satisfied initially in
order for a discrimination case to move forward.

Id. at 777.

When a prima facie case is established, an inference of
discriminatory

conduct

arises

and

the

burden

shifts

to

the

defendant to produce a “legitimate non-discriminatory reason” for
the adverse employment decision. Id. (quoting Syl. pt. 2, West Va.
Inst. of Tech. v. West Va. Human Rights Comm’n, 181 W. Va. 525
(1989)). This legitimate non-discriminatory reason (“LNDR”) is not
required to be fair or honorable or even reasonable, so long as it
is not discriminatory.
(1993).

Hazen Paper Co. v. Biggins, 507 U.S. 604

Further, the defendant is only held to a burden of

production at this stage, and when satisfied, any inference of
discrimination created by the plaintiff’s prima facie case drops
away.

Should the defendant produce a LNDR, the burden then shifts

back to the plaintiff to prove by a preponderance of the evidence
that

the

defendant’s

proffered

LNDR

is

pretext,

and

that

discrimination is the actual reason for the adverse employment
action.

Ford Motor Credit, 225 W. Va. at 777.

16

a.

Discrimination Based Upon Gender and Age

Initially, Mrs. Councell contends that she was terminated from
her employment with HLC due to her age and gender.

Gender is a

protected class under WVHRA and it is not disputed that Mrs.
Councell was 58 when she was terminated, and thus, within a
protected

age

class.6

Therefore,

the

first

prong

Councell’s prima facie case is easily established.

of

Mrs.

It is also

undisputed that Mrs. Councell was terminated by HLC, thus the
second prong of the prima facie case is likewise easily found here.
However, this Court does not believe that the Mrs. Councell is able
to create a genuine issue of material fact with regard to any
causal connection between her termination and her age and/or her
status as a female.

Mrs. Councell seems to make two arguments to

support her prima facie case of gender and/or age discrimination.
First,

she

argues

that

while

she

was

on

medical

leave

following a medical procedure on or about December 3, 2008, her
work duties were assumed by Shane Timmons, a male employee in his
thirties and that, after she returned from leave, Mr. Timmons was
given preferential treatment in workplace disputes.

Mrs. Councell

argues that “Pat Shreve was influencing the work conditions such
that Mr. Timmon’s [sic] would be the permanent replacement of Mrs.
Councell and that Mr. Timmon’s [sic] was hopeful he would take that

6

Under the WVHRA, “age” means anyone “the age of forty or
above.” W. Va. Code § 5-11-3(k).
17

position.”

(ECF No. 63 *16.)

However, there is no evidence

provided to support this contention or that this younger male
employee replaced Mrs. Councell when she was terminated.

In fact,

HLC contends, and this contention is not factually challenged, that
Pat Shreve, Mrs. Councell’s female supervisor who is also older
than Mrs. Councell, absorbed Mrs. Councell’s responsibilities
herself following Mrs. Councell’s termination.

Mrs. Councell

further provides no evidence that any other female or older
employee was treated less favorably than male employees and/or
younger employees, nor does she present any evidence of any male
employee or younger employee other than Shane Timmons who may have
received preferential treatment.
This Court does not find the fact that a younger male took
over Mrs. Councell’s responsibilities while she was on leave to be
probative of gender or age discrimination.

When Mrs. Councell was

on leave, someone needed to take over her responsibilities, and
just because that person happened to be a younger male cannot serve
as evidence of discrimination -- especially when Mrs. Councell
resumed her managerial position upon her return, and there is no
evidence that Mr. Timmons took over Mrs. Councell’s position fulltime after her termination.
Further, while Mrs. Councell alleges that Mr. Timmons received
“preferential treatment” in workplace disputes following Mrs.
Councell’s return, the only evidence they offer to support this

18

claim is that Mr. Timmons was involved in workplace disputes
following Mrs. Councell’s return which resulted unfavorably for
Mrs. Councell.

This is also not evidence that Mrs. Councell was

terminated because she is an older female.
that

either

of

the

workplace

disputes

There is no evidence
which

Mrs.

Councell

identifies as evidence of preferential treatment were contrived,
nor did either involve only Mr. Timmons.

While hindsight may have

allowed Pat Shreve to conclude that at least one of the incidents
should not have been handled the way that it was, this conclusion
does not serve to paint the way in which it was originally handled
as discriminatory based upon Mrs. Councell’s age or gender, without
something to connect the incident to Mrs. Councell’s age and/or
gender status.7

Holland v. Washington Homes, Inc., 487 F.3d 208,

217 (4th Cir. 2007) (focus must be placed upon the point of view of

7

It is noted that this incident was only tangentially related
to Mr. Timmons in that Mrs. Councell was deemed to have been rude
to his family when they were in the store.
Further, this Court recognizes that Ms. Shreve admitted at her
deposition that Mr. Timmons should have informed Mrs. Councell that
his family was in the store and that he was disrespectful to Mrs.
Councell concerning the incident, but was not disciplined for this.
However, the incident for which Mrs. Councell was disciplined was
directly regarding her allegedly inappropriate treatment of
customers. The nature of the alleged behavior of Mrs. Councell
which led to discipline, and the nature of the alleged behavior of
Mr. Timmons, which did not lead to discipline in this instance, is
too different to use as evidence of preferential treatment of Mr.
Timmons. See Young v. Bellofram Corp., 705 S.E.2d 560, 568 (W. Va.
2010) (when conduct of two employees is not comparable, court
cannot compare level of discipline for purposes of plaintiff’s
prima facie case).
19

the decisionmaker and whether he believed his reason to be credible
at the time that the employment action was made).
Secondly, Mrs. Councell argues that her medical condition is
one which would not occur if she were not an older female, because
her condition is a progressive one dealing with her “female
anatomy.”

(ECF

No.

63

*16.)

Thus,

Mrs.

Councell

argues,

termination due to her disability is also a result of her status as
an older female.

For the reasons stated below, this Court finds

that Mrs. Councell was not terminated due to any disability that
she may have had.

Notwithstanding this conclusion, this argument

is not probative of gender or age discrimination.

There is no

evidence presented that any discrimination that Mrs. Councell may
have suffered as a result of her alleged disabilities was because
these disabilities were so-called “older female disabilities” or
that she would have been treated differently were they back
problems for example, or any other problem which could also cause
a young male employee to have lifting restrictions.

Nor is there

any evidence that any limitations which may have resulted from her
alleged disabilities were of the type that would only afflict an
older female. Accordingly, this contention by Mrs. Councell has no
merit.
This Court also notes that, in opposition to the conclusory
and speculative arguments offered by Mrs. Councell to support her
gender and age discrimination claims, a wealth of uncontested

20

rebuttal evidence exists to undermine them. All of Mrs. Councell’s
superiors who were involved in her termination are in the protected
age class of the WVHRA, and Pat Shreve, Mrs. Councell’s direct
supervisor, was actually older than Mrs. Councell.

Mr. Wells, who

accepted the recommendation to terminate Mrs. Councell and gave
final approval of her termination, was 69 years old when Mrs.
Councell was terminated.

Also, Mrs. Councell was hired as a woman

in her forties, and twice promoted by Pat Shreve herself when she
was a woman in her forties.

See Young v. Bellofram Corp., 705

S.E.2d 560, 567 (W. Va. 2010) (“A promotion at the age of fiftynine

does

not

support

[the

plaintiff’s]

claim

that

she

was

discriminated against on the basis of her age [when she was
terminated at the age of sixty].”).

The uncontradicted affidavit

of Ken McElhaney, the Vice President of Operations for HLC, reveals
that the average age of the twelve employees at the outlet store
where Mrs. Councell was employed is fifty years, and that the
oldest employee currently employed at the outlet is seventy-six
years old.
affidavit

(ECF No. 61 Ex. A.)
also

reveal

that

a

The statements in Mr. McElhaney’s
fifty-five

year

old

female

is

currently employed at the outlet and that, of the twelve employees,
ten are female.

Id.

As a final matter, at her deposition, when directly asked by
defense counsel whether she believed that she had been terminated
based upon her sex, Mrs. Councell responded in the negative.

21

Mrs.

Councell

attempts

to

remedy

this

admission

by

submitting

an

affidavit along with the plaintiffs’ response to the defendant’s
motion for summary judgment, in which she avers that she does in
fact believe that she was terminated because of her gender.8

This

attempt is unsuccessful in convincing this Court to disregard the
fact that Mrs. Councell herself has admitted that her gender
discrimination claim has no merit.

It is settled law that a

party’s affidavit which directly contradicts her earlier deposition
testimony must be rejected by the court in determining a motion for
summary judgment, barring circumstances which would lead the court
to determine that the contradiction is a result of confusion or a
lack of clarification within the deposition testimony.

Rorhbrough

v. Wyeth Lab. Inc., 719 F. Supp. 470, 474 (N.D. W. Va. 1989);
Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984); Hinkle v.
The City of Clarksburg, 81 F.3d 416 (4th Cir. 1995).
Mrs. Councell argues that her deposition was never concluded,
and plaintiffs’ counsel did not have an opportunity to redirect his
client.

However, this Court finds that the question asked of Mrs.

8

It is also noted that when Mrs. Councell was asked whether
she had ever heard Ms. Shreve say anything about anyone which would
lead Mrs. Councell to believe that Ms. Shreve discriminated based
upon age or gender, she answered that she was not aware of any such
statements. However, in the plaintiffs’ brief in response to the
defendant’s
motion
for
summary
judgment,
the
plaintiffs
conclusively state that Ms. Shreve “made derisive comments about
older workers and their ability to perform their job.” (ECF No. 63
*2.)
This statement is not supported by any facts, and is in
direct contravention of the testimony given by Mrs. Councell at her
deposition.
22

Councell at her deposition which prompted her admission that she
did not believe that she was terminated due to her gender was
direct and clear, and her answer was not the result of confusion.
Further, much like the United States Court of Appeals for the
Fourth Circuit found in Barwick, this Court believes that Mrs.
Councell would have been aware of the importance of her answer to
this aspect of her case at the time of her deposition, regardless
of her level of legal sophistication.

See id. at 959.

Finally,

also as in Barwick, Mrs. Councell’s affidavit is conclusory as to
her assertion that she was terminated because of her gender, and
“does not set forth facts of which the plaintiff has personal
knowledge and it does not give specific facts” which may explain
her contradictory response at her deposition.

Id.

Thus, this

Court cannot find that the plaintiffs’ counsel’s inability to
redirect his client at her deposition creates sufficient reason to
consider Mrs. Councell’s assertion in her affidavit that she was
terminated

due

to

her

gender,

a

contradicts her deposition testimony.

statement

which

directly

As a result, this Court

finds that Mrs. Councell has not created an issue of material fact
with regard to any causal connection between Mrs. Councell’s
termination and her age and/or gender, and summary judgment is
granted to the defendant.

See Johnson v. Killmer, 219 W. Va. 320,

324 (2006) (a plaintiff must “show some evidence which would
sufficiently link the employer’s decision and the plaintiff’s

23

status as a member of the protected class so to give rise to an
inference

that

the

employment

decision

was

based

upon

discriminatory criterion”) (internal quotations omitted).
b.

Discrimination Based Upon Disability

Under this claim, Mrs. Councell’s status as a protected person
is also in question along with the causal nexus element of her
claim.

Mrs. Councell asserts that she qualifies as “disabled”

under the meaning of that term in the WVHRA because she underwent
surgery on or about December 3, 2008 in order to repair prior
issues that she had with regard to a prolapsed bladder.

Mrs.

Councell claims that these issues and the surgery resulted in
lifting limitations.

Specifically, Mrs. Councell testified that

she was unable to do heavy lifting as a result of the bladder
problem which led to the surgery, and that her lifting restrictions
continued following the surgery and continue even today.
Under the WVHRA, a person who suffers from a disability is:
a person who has one or more physical or mental
impairments that substantially limits one or more major
life activities; a person who has one or more physical or
mental impairments that does not substantially limit one
or more major life activities, but that is treated by
others as being such a limitation; a person who has one
or more physical or mental impairments that substantially
limits major life activities only as a result of
attitudes of others toward such impairment; and a person
who has no such impairments, but who is treated by others
as having such impairment.
Stone v. St. Joseph’s Hosp. of Parkersburg, 208 W. Va. 91, 102
(2000).

24

In

order

for

an

impairment

to

“substantially

limit”

an

activity, it must significantly restrict “the condition, manner or
duration under which an individual can perform a particular major
life activity as compared to the condition manner or duration under
which the average person in the general population can perform that
same activity.”

77 C.S.R. § 2.5.

The defendant maintains that

Mrs. Councell does not have a disability under this definition
because, in the plaintiffs’ amended complaint, it is alleged that
Mrs. Councell “was physically strong and capable of performing the
tasks associated with retailing heavy pottery.” (ECF No. 46 *3-4.)
Further, during Mrs. Councell’s deposition, she admitted that she
was able to cook, clean, take care of her personal hygiene and care
for her husband, and that, beyond avoiding heavy lifting of things
like furniture, her limitations do not affect her daily life.9
After review of the record and the contentions of the parties,
it appears that the only real limitation suffered by Mrs. Councell
that seems to be supported by evidence is that the amount of heavy

9

Mrs. Councell’s affidavit tells another story about the
effect that her bladder protrusion and related ailments had on her
daily life. However, for the reasons explained above with regard
to affidavit statements which contradict deposition testimony, this
Court will not consider these averments by Mrs. Councell. This
Court believes that Mrs. Councell was directly asked to explain the
way(s) in which her medical condition(s) affected her daily life
and she was not rushed or prevented from answering fully. Further,
this Court believes that Mrs. Councell would have been aware of the
importance of her answer given the fact that she was claiming
disability discrimination.
25

lifting in which she could safely engage was limited.10

Under the

Americans with Disabilities Act, which defines “disability” with
language nearly identical to the definition in the WVHRA,11 lifting
has been determined to be a major life activity, and limitations in
ordinary lifting have been determined to qualify as significant
limitations to it.

See Lowe v. Angelo’s Italian Foods, 87 F.3d

1170 (10th Cir. 1996).
However, it seems clear to this Court that there is no
evidence to suggest that Mrs. Councell was substantially limited in
her regular, ordinary lifting ability, but only in the lifting of
very heavy objects.12 Such a limitation is likely outside the realm
of a significant limitation on the major life activity of lifting
as a matter of law. See Williams v. Channel Master Satellite Sys.,
Inc., 101 F.3d 346, 349 (4th Cir. 1996) (“as a matter of law[] a
twenty-five pound lifting limitation -- particularly when compared
to

an

average

person’s

abilities

--

does

not

constitute

a

10

The plaintiffs’ briefs, as well as deposition testimony,
suggest that Mrs. Councell may also suffer from a heart condition
and asthma, but this Court cannot find any evidence or even
allegations that these conditions limit Mrs. Councell’s ability to
engage in any activities.
11

The ADA defines “disability” as: “(A) a physical or mental
impairment that substantially limits one or more major life
activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such impairment.”
42 U.S.C.
§ 12102(1).
12

Mrs. Councell’s deposition testimony reveals that she is only
limited in her ability to do things like move and lift furniture.
(ECF No. 61 Ex. C *163-64.)
26

significant restriction on one’s ability to lift, work or perform
any major life activity.”); Ray v. Glidden Co., 85 F.3d 227, 229
(5th Cir. 1996) (ten-pound lifting restriction not a disability).
Further, Mrs. Councell’s own deposition testimony denies that
any

major

life

ailment(s).

activities

are

substantially

limited

by

her

Beyond a showing of limitation, it is crucial that a

plaintiff present evidence that the limitation had an actual effect
on one or more of her major life activities in order to qualify as
“disabled” under the law.

Lyons v. Shinseki, 2011 U.S. App. LEXIS

23077, No. 11-1361 (4th Cir. Nov. 17, 2011)(unpublished) (“Standing
alone, an impairment is not sufficient to establish a disability;
the employee also must prove the impairment substantially limits a
major life activity.”).

Mrs. Councell has failed to make such a

showing here.
Mrs. Councell also contends that even if it cannot be proven
that she actually had a disability, she had a “perceived difficulty
lifting,” and thus qualifies as disabled under the statute.
Stone v. St. Joseph’s Hosp., 208 W. Va. at 101-102.

See

However, Mrs.

Councell offers no factual contention to support why she believes
that

she

was

perceived

as

having

a

disability.

Deposition

testimony reveals that Ms. Shreve was aware that Mrs. Councell was
supposed to avoid lifting overly heavy loads, but it also reveals
that she did not believe that heavy lifting was a necessary part of
Mrs. Councell’s position as an assistant manager.

27

See ECF No. 63

Ex. C *85; and ECF No. 61 Ex. D *90-91.

Further, testimony of Mrs.

Councell’s other superiors reveals that they were wholly unaware of
any possible lifting restrictions that Mrs. Councell may have had.13
(ECF No. 61 Ex. E *42-43, Ex. H *119, Ex. I *40-41.)

There is no

evidence that anyone told Mrs. Councell that she was not allowed to
perform any activities on the job, nor does it appear that she was
treated as if she was unable to perform the necessary functions of
her job. In fact, it appears that Ms. Shreve simply cautioned Mrs.
Councell against doing anything that may cause her to injure
herself.14

(ECF No. 63 Ex. D *90-91.)

It is not reasonable to deem

such an instruction regarding safety precautions to be evidence
that Ms. Shreve viewed Mrs. Councell as substantially limited in
major life activities.
Mrs. Councell seems to attempt to use Stone as evidence that
simply showing that she was “perceived [as having] difficulty
lifting” satisfies their burden of proof of showing that Mrs.
Councell’s superiors viewed her as disabled. However, the facts of
Stone make it readily distinguishable from the instant situation.
The plaintiff in that case was reassigned from his emergency

13

This testimony has not been challenged by Mrs. Councell.

14

Mrs. Councell argues that Ms. Shreve “placed limitations on
[Mrs. Councell] without submitting a request for an independent
medical examination.”
This argument overstates Ms. Shreve’s
testimony, in which she said that she merely “cautioned [Mrs.
Councell] against [lifting, because] [s]he had complained about her
bladder and I just made the comment that maybe she shouldn’t be
lifting.” (ECF No. 63 *85.)
28

medical services job to a desk position because his employers
believed that his back problems and “perceived difficulty lifting”
limited his ability to perform the essential functions of his job.
See W. Va. Code § 5-11-3(m)(1) (substantial limitation of the
ability

to

activit[y]”).

work

specifically

included

as

a

“major

life

Here, there is no evidence that Ms. Shreve or any

other of Mrs. Councell’s superiors had any such opinion of Mrs.
Councell’s perceived difficulty with lifting heavy objects or that
they had the opinion that it limited her in any other major life
activity. Thus, Mrs. Councell has not shown that she is a disabled
person under the WVHRA.
Even if this Court could find that there exists a genuine
issue of material fact with regard to whether or not Mrs. Councell
qualifies as a disabled individual under the WVHRA, the defendant
is still entitled to summary judgment on this claim because the
Mrs. Councell has not satisfied her prima facie burden of showing
a causal connection between Mrs. Councell’s alleged disability and
her termination.

First, Mrs. Councell attempts to create an issue

of material fact as to the causal nexus by arguing the proximity in
time between when Mrs. Councell returned from medical leave after
her medical procedure and her first written disciplinary warning.
Mrs. Councell returned from medical leave at some time in January
2009, and received this first written warning on January 29, 2009.

29

This Court does not find this contention to be probative of causal
nexus for multiple reasons.
First, while Mrs. Councell may have been on medical leave for
a procedure relating to her prolapsed bladder immediately preceding
the incident which led to her first written warning, the record
evidence shows that Mrs. Councell suffered from prolapsed bladder
for nearly her entire tenure at HLC, and actually had undergone a
bladder tuck in 1996; very close to the time when she began her
employment with HLC. Mrs. Councell had, by her own testimony, been
subject to lifting restrictions throughout this entire time, thus
making this medical procedure simply a part of a larger medical
condition

which

had

Councell’s employment.

been

present

for

over

a

decade

of

Mrs.

Thus, considering the proximity in time of

Mrs. Councell’s procedure to the incident which led to the first
written warning would be to focus on an incorrect timeline.
Secondly,

while

Mrs.

Councell

characterizes

the

written

warning of January 29, 2009 as the first disciplinary incident on
Mrs. Councell’s record, this characterization oversimplifies the
record. In fact, in 2007, a disciplinary incident occurred wherein
a customer sent a letter to HLC complaining about the customer
service that he received at the outlet store.

Mrs. Councell was

implicated as being rude to this customer. While this incident did
not lead to a written warning, it was a disciplinary incident
regarding Mrs. Councell’s unprofessional behavior.

30

The incident

which occurred in January 29, 2009 was also an incident relating to
allegedly unprofessional behavior, as were all of the disciplinary
incidents in the record.

Thus, there is no evidence that an

initial disciplinary incident happened within a time proximate to
the onset of an alleged disability when there had been no similar
disciplinary incidents prior to any onset. It seems, in fact, that
a reasonable escalation in the seriousness of discipline occurred
based upon continued similar behavior.
Mrs.

Councell

also

attempts

to

connect

her

lifting

restrictions to her termination by arguing that HLC seemingly
exploited Mrs. Councell’s difficulty with lifting after her surgery
in an apparent attempt to set her up for failure at work so that
she could be terminated.
that,

before

Mrs.

The first allegation of this nature is

Councell’s

surgery

in

December

2008,

she

allegedly had received help from subordinates at the outlet in
performing some of the “manual labor duties associated with [her]
position.

However, after her surgery, this assistance was taken

from her.”

(ECF No. 63 *3.)

Again, this allegation misstates and

mischaracterizes the record evidence.

The only support for this

statement that can be found in the record is testimony regarding a
single incident, Mrs. Councell’s reaction to which led to her
written warning of January 29, 2009, when Mr. Timmons had been
assigned by Rich Brinkman to gather products for a photo shoot, and
Mrs. Councell felt that she was shorthanded in the store and that

31

she needed help which she was unable to obtain because Mr. Timmons
was otherwise engaged.

However, there is no evidence that this

occurred more than this one time, nor is there evidence that even
this incident represented a situation where Mrs. Councell was not
permitted to have assistance with manual labor from subordinates.
Mrs. Councell testified that she was shorthanded and that she “had
to do work in my office to catch up on” and that “Rich Brinkman had
given [Mr. Timmons] a job to do without finding out from me whether
or not he was needed in the store or if I needed him.”

(ECF No. 63

Ex. B *83.) This generic testimony about needing help in the store
during

this

single

incident

is

insufficient

to

support

Mrs.

Councell’s allegation in this regard.
Mrs. Councell’s second support for her contention that she was
set up for failure is the alleged “10-point memo” drafted by Rich
Brinkman

and

presented

to

Mrs.

Councell

in

a

performance

improvement meeting which she contends “mandated that 50% of [Mrs.
Councell’s] work week be spent manipulating heavy pottery.”
No. 63 *4.)

(ECF

Again, this mischaracterizes the record evidence and

this Court does not find this statement to be supported by any
evidence.

The alleged “10-point memo” given to Mrs. Councell by

Mr. Brinkman pursuant to a performance improvement meeting on July
9, 2009 lists the ten things that Mr. Brinkman needed to be Mrs.
Councell’s focus in her position.

Point 6 of this memo instructs

Mrs. Councell to be “in store 50% of the time working on displays,

32

stock, and customers.”

(ECF No. 63 Ex. I.)

There is no evidence

offered by Mrs. Councell that this point was communicated to her to
mean what she contends that it means, nor does a reading of the
plain language of this point lead to any possible reasonable
conclusion that 50% of Mrs. Councell’s time was expected to be
devoted to moving heavy pottery.

There is not even any mention at

all of moving pottery.
Finally, this Court believes that it is important to note
that, aside from the lack of evidence offered by Mrs. Councell to
support her allegation that HLC “set her up” for failure in her job
responsibilities by exploiting her lifting restrictions, the theory
in

itself

is

termination.

not

reasonably

connected

to

Mrs.

Councell’s

The reason that HLC provides for terminating Mrs.

Councell is that there had been multiple customer service and
professionalism problems with Mrs. Councell over the final few
years of her employment that she had failed to correct, the
culmination of these problems occurring in an altercation with Ms.
Shreve wherein Mrs. Councell was deemed to again have acted
unprofessionally toward her supervisor.

It defies reason that HLC

would intentionally exploit Mrs. Councell’s lifting restrictions in
order to “set her up” for unsatisfactory work performance so that
she could be pretextually fired, but then fire her for a reason
totally unrelated to her ability to perform the requirements of her
position.

This Court cannot rely on such an argument in deciding

33

summary judgment.

Celotex, 477 U.S. at 330 n.2 (inferences drawn

in the non-moving party’s favor must be “reasonable” to defeat
summary judgment).
burden

of

showing

Thus, Mrs. Councell has failed to satisfy her
a

causal

connection

between

any

alleged

disability from which she suffered and her termination.15
c.

Pretext

As a final matter, even if the Mrs. Councell had satisfied her
burden to present a prima facie case against HLC with regard to any
of the WVHRA claims, the defendant is nonetheless entitled to
summary judgment because Mrs. Councell has failed to present any
evidence which could allow a reasonable juror to find that the
defendant’s proffered LNDR was a pretext for discrimination.

The

defendant has satisfied its burden of production to proffer a LNDR

15

Mrs. Councell also makes a number of allegations in her
briefs which seem to argue that HLC failed to make a reasonable
accommodation for her lifting restrictions. Initially, this Court
notes that no failure to accommodate claim was made in the
plaintiffs’ complaint. Further, this Court previously determined
that Mrs. Councell is not disabled. See Alley v. Charleston Area
Med. Ctr. Inc., 216 W. Va. 63, 71 (2004) (elements of failure to
accommodate claim include that plaintiff is a “qualified person
with a disability.”). Finally, it is clear from the record that
Mrs. Councell never requested any type of accommodation whatsoever,
and there is no evidence that any of her supervisors were aware
that she may have needed one.
Id. (element of failure to
accommodate claim that “the employer knew or should have known of
the plaintiff’s need”). Ms. Shreve was aware of Mrs. Councell’s
lifting restrictions, but the record evidence makes clear that
lifting heavy objects was not deemed to be an essential part of
Mrs. Councell’s job, and Ms. Shreve simply cautioned her against
it. See ECF No. 61 Ex. C *153, 155, 178, Ex. D *91, 166-67 and
Alley, 216 W. Va. at 71 (employee must need accommodation “in order
to perform essential functions of a job” in order to sustain
accommodation claim.).
34

by arguing that Mrs. Councell was terminated due to “repeated
unprofessionalism.”

(ECF No. 60 *1.)

HLC supports this LNDR with

a complaint letter from a customer, dated December 11, 2007, which
identifies Mrs. Councell as one of the employees who “chastised”
and “admonished” him in his attempt to return merchandise.16

It

also supports its position with multiple written warnings and
evidence of employee counseling meetings held with Mrs. Councell
regarding her professionalism with customers and coworkers over the
year leading to her termination.
Mrs. Councell attempts to rebut this LNDR by arguing that the
incidents cited were not handled correctly by HLC and were framed
incorrectly to make Mrs. Councell look bad, when in actuality, her
behavior was commonplace at HLC.

However, the record reveals that

none of the incidents for which Mrs. Councell was disciplined were
contrived; Mrs. Councell herself admits within her deposition that
each of the incidents occurred, and while she disagrees with HLC’s
interpretation of them, she generally agrees that they occurred in
the way that HLC says that they did.

Further, Mrs. Councell’s own

testimony reveals that she was aware that her behavior on multiple
occasions was against company policy, and that HLC viewed it as

16

Mrs. Councell argues that she is not mentioned by name in
this letter.
(ECF No. 63 *5 n.20.)
However, the letter
specifically identifies the “assistant manager” as a party to the
incident. (ECF No. 61 Ex. C *30-31.) Further, plaintiffs’ counsel
conceded during Ms. Shreve’s deposition, that the letter identified
Mrs. Councell, just not by name. (ECF No. 63 Ex. C *42.)
35

unprofessional.17

Thus,

whether

HLC

handled

the

disciplinary

decisions fairly or correctly, or whether, in hindsight, they would
have or should have handled them differently is not within the
purview of the WVHRA.

Romney Hous. Auth. v. W. Va. Human Rights

Comm’n, 185 W. Va. 208, 212 (“the question is not whether an
employment decision was essentially fair or whether it was made in
accordance

with

pre-established

procedures.

The

question

is

whether the individual was discriminated against . . .”).
There

is

no

evidence

presented,

beyond

conjecture,

of

discriminatory animus expressed against workers in any of Mrs.
Councell’s protected classes, nor is there evidence of a similarly
situated worker being treated similarly and differently than nonprotected class workers.

Mrs. Councell makes allegations of HLC’s

failure to tape record employee discipline meetings, and Rich
Brinkman’s refusal to honor her request to invite a member of human
resources to a performance improvement meeting as evidence of
pretext.

However, this Court is unable to see a reasonable

connection between these two issues and the validity of Mrs.
Councell’s termination. The occurrences of these meetings are well
documented, and the content of the meetings likewise does not seem
to be contested.

Notes were made, and Mrs. Councell’s position on

17

Again, Mrs. Councell’s affidavit tells a different story, but
this Court will not consider the affidavit statements which
directly contradict deposition testimony for the reasons stated
supra.
36

the matters discussed is noted.

Further, while Mr. Brinkman

informed Mrs. Councell that a member of human resources would not
be present at the performance improvement meeting, the human
resources

department

was

carbon

copied

on

all

correspondence

regarding this meeting, and Mrs. Councell does not seem to claim
that anything occurred at this meeting which is denied by HLC.
Additionally, there is sufficient evidence on the record that
Mrs. Councell was made aware of HLC’s expectations with regard to
professionalism, and that she was given numerous opportunities to
give her side of the story and to meet with supervisors regarding
the issues.

Further, the incidents which led to discipline were

all examples of consistently similar behavior on the part of Mrs.
Councell.
While Mrs. Councell continually asserts that her behavior was
commonplace, and that Ms. Shreve behaved in the same manner quite
often but was not disciplined for it, this testimony does not serve
to create a genuine issue of material fact that the defendant’s
LNDR is false.

See Ford Motor Credit Co., 225 W. Va. at 777-78

(2010) (testimony that profanity was commonplace in the office and
did not lead to discipline for others only serves to provide a
“scintilla” of evidence that employer’s proffered LNDR is pretext,
which is insufficient to defeat summary judgment).

Further, the

only facts which are presented by Mrs. Councell to support these
allegations are that Ms. Shreve’s similar behavior went unpunished.

37

However, this cannot serve to support an allegation of pretext
because Ms. Shreve is not a person outside of Mrs. Councell’s
claimed protected classes.

In fact, Ms. Shreve is a member of

every single protected class that Mrs. Councell invokes in this
case.
she

Ms. Shreve is older than Mrs. Councell, she is a woman, and

suffers

from

multiple

construed as “disabilities.”

ailments

which

could

possibly

be

It appears that, while Mrs. Councell

may not agree that it was fair for HLC’s to act upon her behavior
when they did and how they did, there is no evidence that their
decision to do so was a pretext for any underlying purpose, be it
discriminatory or otherwise.
2.
Count

Insurance Discrimination Claim
II,

a

claim

for

discrimination

based

upon

Mrs.

Councell’s claims to HLC’s health insurance plan, has been earlier
determined to be a discrimination claim under ERISA § 510.

ERISA

insurance discrimination claims under this section follow the
McDonnell Douglas framework; i.e., a plaintiff must prove a prima
facie case that: “(1) [s]he is . . . a participant in an employee
benefit plan; (2) that she was qualified for the job; and (3) that
she was discharged ‘under circumstances that give rise to an
inference of discrimination.’” O’Donnell v. Biolife Plasma Servs.,
L.P., 384 F. Supp. 2d 971, 973-74 (S.D. W. Va. 2005) (quoting Blair
v. Young Phillips Corp., 235 F. Supp. 2d 465, 473 (M.D. N.C.
2002)). The defendant claims that Mrs. Councell has failed to show

38

evidence of any connection between her termination and her claims
to the insurance plan and that Mrs. Councell herself admitted at
her deposition that she did not believe that she was terminated due
to her claims to the HLC insurance plan.

This Court agrees.

Mrs. Councell attempts to create an issue of material fact
with regard to the causal connection element of her ERISA insurance
discrimination claim by arguing that Ms. Shreve, Mrs. Councell’s
direct supervisor, had made negative comments in the past regarding
other employees’ claims to HLC’s self-funded insurance program.
This Court does not find that these comments are sufficient to
create a genuine issue of material fact upon which a reasonable
juror could conclude that HLC terminated Mrs. Councell due to her
claims to the company insurance plan.

First, there is no evidence

of Ms. Shreve acting on any of these comments against any employee.
Secondly, the comments were not made in relation to, or at a time
contemporaneous

to

Mrs.

Councell’s

termination.

See

Price

Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,
concurring)

(“stray

remarks

in

the

workplace,

while

perhaps

probative . . ., cannot justify requiring an employer to prove its
. . . decisions were based upon legitimate criteria.”) (internal
citations omitted).

Third, Mrs. Councell has failed to present

evidence that Ms. Shreve was the decisionmaker in Mrs. Councell’s
termination.

39

Under the employment discrimination framework, an employer can
only be held liable for the discriminatory animus of those who
“possessed such authority as to be viewed as the one principally
responsible for the decision” to make an adverse employment action.
Hill v. Lockheed Martin Logistics Mgmt., 354 F. 3d 277, 290-91 (4th
Cir. 2000).

In Hill, the Fourth Circuit expressly held that

discrimination statutes cannot be read to create liability for a
company

for

the

discriminatory

motivation

of

a

“biased

subordinate,” nor to allow that subordinate “who does not make the
final or formal employment decision to become a decisionmaker
simply because [s]he had a substantial influence on the ultimate
decision or because [s]he has played a role, even a significant
one, in the adverse employment decision.”

Id.

Thus, in order to

survive summary judgment, a plaintiff must “come forward with
sufficient evidence that the subordinate employee possessed such
authority as to be viewed as the one principally responsible for
the decision.”
Mrs.

Id.

Councell

has

presented

no

evidence

to

support

an

inference that Ms. Shreve was the actual decisionmaker in Mrs.
Councell’s termination. The record clearly establishes that, while
Ms. Shreve reported incidents to her superiors and likely played a
role in and influenced the final decision to terminate Mrs.
Councell, she was not the final decisionmaker.

Nor is there

evidence to support an inference that the actual decisionmakers

40

blindly rubber-stamped the suggestions of Ms. Shreve.

There was a

process of discussion on multiple levels above Ms. Shreve, and it
appears that she was not even involved in the final discussions
with regard to Mrs. Councell’s termination.

See ECF No. 63 Ex. C

*160; ECF No. 61 Ex. I *51-53, Ex. G *100-04.

Thus, any animus

that Ms. Shreve may have harbored toward those who made claims
against the company insurance is not attributable to HLC as a
whole.
Nor has there been any evidence presented to support an
inference that any of the actual decisionmakers were motivated to
terminate Mrs. Councell as a result of her insurance claims.

Mrs.

Councell admitted in her deposition testimony that she did not
believe that she was terminated as a result of her insurance
claims, and any allegations advanced by Mrs. Councell to support a
contrary contention are purely conjecture unsupported by facts.
Mrs. Councell’s affidavit, as well as the plaintiffs’ briefing of
the defendant’s motion for summary judgment, make arguments that
claims on HLC’s insurance plan took profits away from HLC and that
these added costs were passed along to the employees rather than
absorbed by the company.

However, there is no evidence offered to

support these contentions.18

As a result, Mrs. Councell has failed

18

Mrs. Councell cites to multiple sections of the deposition
transcripts of decisionmakers and company representatives to
support this contention.
However upon inspection of the cited
portions of these depositions, this Court has been unable to find
even a mention of HLC’s insurance policy.
41

to present evidence which could allow a reasonable juror to find a
causal nexus between Mrs. Councell’s claims to HLC’s insurance plan
and her termination.
3.

Defamation

Count IV is a claim for defamation.19

The defendant claims

that this count fails as a matter of law due to statutory and
common law privileges, and because Mrs. Councell has again failed
to present evidence to support her claim.

Mrs. Councell failed to

respond to the defendant’s arguments with regard to this claim.
Therefore, under Celotex and Anderson, she has failed to support
her claim with facts showing that there is an issue of genuine fact
for trial.

477 U.S. 317; 477 U.S. 242.

The plaintiff “may not

rest upon the mere allegations or denials of his pleading” to
defeat summary judgment. Anderson, 477 U.S. at 256. Thus, summary
judgment must be granted to the defendant on this claim as well.
4.

Intentional

and

Negligent

Infliction

of Emotional

Distress
Count V of the complaint raises a claim of intentional and
negligent infliction of emotional distress.

This claim, too, is

insufficiently supported by facts and must be dismissed.

The only

support that Mrs. Councell provides for this claim in opposing
summary judgment is in a footnote which argues that the facts given
regarding Mrs. Councell’s termination “are so egregious that a jury

19

The first amended complaint does not contain a Count III.
42

may fairly conclude emotional distress flows from these events.”
(ECF No. 63 *11 n.39.)

However, in addition to providing no facts

to support that emotional distress actually occurred, this argument
misstates the requirements for a claim of emotional distress in
this case. Minshall v. Health Care Retirement Corp. of Am., 208 W.
Va. 4, 9 (2000).
Both

negligent

and

intentional

infliction

of

emotional

distress claims require that a plaintiff provide evidence that she
suffered “severe emotional distress” in order to be successful.
Marlin v. Bill Rich Constr., 198 W. Va. 635, 652 (1996) (“A claim
for emotional distress without an accompanying physical injury can
only be successfully maintained upon a showing by the plaintiffs in
such an action of facts sufficient to guarantee that the claim is
not spurious and upon a showing that the emotional distress is
undoubtedly real and serious.”).

Mrs. Councell has not even

attempted to make such a factual showing in this case.

Simply

stating that the defendant’s actions were so “egregious” that a
reasonable person could conclude that Mrs. Councell suffered severe
emotional distress is insufficient and is not supported by any
facts.
1996)

See Price v. City of Charlotte, 93 F. 3d 1241 (4th Cir.
(cert.

denied)

(reversing

award

for

emotional

distress

because the evidence did not show any demonstrable emotional injury
outside of the plaintiff’s own testimony).

43

Further, this Court finds that, as a matter of law, the
actions of HLC in this case did not rise to the high level of
“outrageousness”

which

is

“more

than

unreasonable,

unkind

or

unfair, [but which] truly offend[s] community notions of acceptable
conduct” that is required to support this claim.

Philyaw v. E.

Associated Coal Corp., 219 W. Va. 252, 258 (2006).

Thus, summary

judgment must be granted to the defendant on this count.
5.

Spoliation

Count

VI

of

the

complaint

raises

a

spoliation

claim.

Spoliation is a stand-alone tort that creates liability when a
party intentionally destroys, materially alters, or fails to retain
evidence,

and

the

inability

to

present

such

evidence

then

prejudices the plaintiff’s ability to make out a legal claim. Mace
v. Ford Motor Co., 221 W. Va. 198, 202 (2007).

The focus of this

claim is a memorandum written by Richard Brinkman and placed in
Mrs. Councell’s personnel file and the lack of positive feedback in
Mrs. Councell’s file.

The memorandum by Mr. Brinkman details

discussions

Councell

with

Mrs.

wherein

the

two

discussed

disciplinary incident regarding a tent sale in October 2009.

a

Mrs.

Councell claims that Mr. Brinkman destroyed his handwritten notes
when he created the memorandum.
failing

to

place

positive

notes

She further contends that, in
and

“words

of

praise

from

customers” in Mrs. Councell’s file, HLC spoliated this evidence
which would have worked in their favor.

44

In order to sustain a spoliation claim, Mrs. Councell must
show:
(1) the existence of a pending or potential civil action;
(2) the alleged spoliator had actual knowledge of the
pending or potential civil action; (3) a duty to preserve
evidence arising from a contract, agreement, statute,
administrative rule, voluntary assumption of duty, or
other special circumstances; (4) spoliation of the
evidence; (5) the spoliated evidence was vital to a
party’s ability to prevail in the pending or potential
civil action.
Id. (internal citations omitted).
Mrs. Councell has failed to present evidence which could
satisfy these required elements.
say

with

confidence

that

First, while this Court cannot

litigation

could

not

have

been

a

“potential” at the time that Mr. Brinkman wrote his memorandum,
there is no evidence that Mr. Brinkman had actual knowledge of
potential litigation with regard to which his handwritten notes
would be evidence.

Further, Mr. Brinkman transcribed his notes

into a memorandum, which is included in evidence, and there has
been no offering of evidence to support a contention that the
contents of the notes were such that they could be reasonably
considered to be “vital” to Mrs. Councell’s case.
With regard to the positive notes and words of praise from
customers which were not included in Mrs. Councell’s file, there is
no evidence presented that HLC was under any obligation to place
such notes in her file.

Additionally, there is no evidence that

such documents ever existed. While Mrs. Councell may believe that,

45

in order to create a balanced file, both positive and negative
notes should be included, failure to create evidence when there was
no duty to do so is not spoliation.
6.

Loss of Consortium

Finally, because summary judgment has been granted to the
defendant on all of Mrs. Councell’s claims, so too must summary
judgment be granted to the defendant on Mr. Councell’s loss of
consortium claim.

In West Virginia, loss of consortium claims are

“derivative of the underlying tort claim with which [they are]
brought” and recovery depends upon the success of the underlying
tort claim.

Dupont v. United States, 980 F. Supp. 192, 195-96

(S.D. W. Va. 1997).
V.

Conclusion

For the reasons stated above, the plaintiffs’ motion for leave
to

file

an

amended

complaint

(ECF

No.

45)

is

DENIED.

The

defendant’s motion to strike amended complaint (ECF No. 47) is
GRANTED

IN

PART

and

DENIED

IN

PART

as

stated

above.

The

defendant’s motion to deny the plaintiffs’ motion to amend (ECF No.
47) is GRANTED.

The defendant’s motion to enjoin the plaintiffs’

state court action (ECF No. 47) is DENIED AS MOOT. The defendant’s
motion

for

sanctions

(ECF

No.

47)

is

DENIED.

Further,

the

defendant’s motion to stay defendant’s obligation to respond to
plaintiffs’ complaint or amended complaint (ECF No. 49) is DENIED
AS MOOT, and the defendant’s motion for extension of page limit in

46

its motion for summary judgment (ECF No. 57) is GRANTED.

The

defendant’s motions for summary judgment and amended motion for
summary judgment (ECF Nos. 59 and 62) are GRANTED.

All pending

motions in limine, the plaintiffs’ motion to strike defendant’s
motion in limine, and the defendant’s motion for leave to file an
additional motion in limine (ECF Nos. 64-67, 69, and 92) are DENIED
AS MOOT.

Finally, the plaintiffs’ motion for disclosure of jury

questionnaire and Rule 38 jury demand (ECF No. 79) is DENIED AS
MOOT.

Accordingly, it is ORDERED that this case be DISMISSED and

STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

March 15, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

47