Coleman v. Housing Authority of the City of Weirton et al

Filing 37

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT: Granting 31 Motion for Summary Judgment; case to be dismissed with Prejudice and Stricken from active docket; and Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 1/29/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NORA H. COLEMAN,
Plaintiff,
v.

Civil Action No. 5:12CV151
(STAMP)

HOUSING AUTHORITY OF THE
CITY OF WEIRTON and
GEORGE VARGO, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

Procedural History

On September 18, 2012, the plaintiff, Nora H. Coleman, filed
the underlying employment discrimination action in the Circuit
Court of Hancock County, West Virginia.

On October 9, 2012, the

defendants, the Housing Authority of the City of Weirton (“Weirton
Housing Authority”) and George Vargo (“Vargo”), removed the action
to this Court.

The defendants then submitted to this Court a

motion for partial summary judgment on the plaintiff’s claims for
age discrimination, race discrimination, retaliatory discharge, and
outrageous conduct.

The plaintiff did not respond to this motion.

After consideration, this Court granted in part and denied in part
the defendants’ motion for partial summary judgment.

That order

dismissed Counts I(a), I(b), I(c), and Count V as it pertained to
the plaintiff’s outrageous conduct claim based on race or age
discrimination.

Accordingly, Counts II-IV, Counts VI-VIII, the

claims not pertaining to outrageous conduct based on age or race
discrimination

in

Count

V,

and

a

second

Count

V

(likely

a

typographical error) of the plaintiff’s complaint remained.
Subsequently, on December 26, 2013, the defendants filed a
motion for summary judgment to dismiss the remaining counts. The
plaintiff has not filed a response to that motion.

Thus, the

motion is ripe for review.
II.

Facts

The plaintiff was hired by the co-defendant, Vargo, and began
working for the Weirton Housing Authority in 1984.

The plaintiff

filed suit in the Circuit Court of Hancock County, West Virginia,
on April 25, 2012.

The action was subsequently removed to this

Court based on federal question jurisdiction.
In her complaint, the plaintiff claims that she was discharged
based on her race and because of her age; her discharge was
retaliatory because she had complained to defendant Vargo about the
misuse of the Housing Authority’s funds, inappropriate treatment of
clients, and inappropriate personal relationships of employees and
supervisor; and that a family member of defendant Vargo was given
preferential

treatment

over

the

plaintiff.

Based

on

these

allegations, the complaint sets forth nine counts (although it is
only listed as eight).
As stated previously, of those nine counts, seven full counts
and one partial count remain. The remaining counts are as follows:

2

Count II-hostile work environment; Count III-breach of contract;
Count IV-wrongful termination; Count V-outrageous conduct not
pertaining to age or race discrimination; second Count V-breach of
implied covenant of good faith and fair dealing; Count VI-failure
to protect; Count VII-unlawful conduct; and Count VIII-slander and
libel.
III.
Summary

judgment

is

Applicable Law
appropriate

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

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.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex

“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) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
However, as the United States Supreme 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 .”

3

Anderson, 477 U.S. 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
U.S. 1074, 112 S. Ct. 973, 117 L.Ed.2d 137 (1992).

In reviewing

the supported underlying facts, all inferences must be viewed in
the light most favorable to the party opposing the motion.

4

See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
In this case, the plaintiff failed to respond to defendants’
motion for summary judgment.

However, the plaintiff’s failure to

file a response does not relieve the defendants from the burden
imposed upon the moving party.

See Custer v. Pan Am. Life Ins.

Co., 12 F.3d 410 (4th Cir. 1993).

The court in Custer held that

while “the failure to respond to a summary judgment motion may
leave uncontroverted those facts established by the motion, the
moving party must still show the uncontroverted facts entitle the
party to ‘a judgment as a matter of law.’”

Id. (quoting Fed. R.

Civ. P. 56(c)).
IV.

Discussion

In the motion for summary judgment, the defendants argue that
they are entitled to judgment as a matter of law with respect to
all of the allegations remaining.

For the reasons that follow,

this Court finds that the defendants’ motion for summary judgment
should be granted.
A.

Time-Barred Claims: Counts II, IV, V, VI, VII, and VIII
1.

Count II: Hostile Work Environment

The defendants contend that as to Count II, hostile work
environment, the plaintiff is time-barred because the default
statute of limitations under West Virginia law applies.

The

defendants assert that the plaintiff’s hostile work environment

5

claim is a personal injury claim because in her complaint, the
plaintiff claims that she suffered severe emotional distress.

The

defendants argue that because the default statute of limitations is
two years, and the plaintiff filed this action 4.75 years after the
alleged conduct occurred, she is time-barred from bringing the
hostile work environment claim.
Based on the plaintiff’s testimony in her deposition, no
adverse employment action was taken against her after she was
terminated on November 20, 2007. The plaintiff filed her complaint
on April 25, 2012, over four years after she claims the adverse
actions ceased.
limitations

is

Although the defendants argue that the statute of
determined

by

the

default

statute

under

West

Virginia law, the plaintiff also asserted the West Virginia Human
Rights Act (“WVHRA”) in her complaint under Count II.

This Court,

however, finds that the statute of limitations period would still
result in the claim being time-barred.
A statute of limitations commences to run when the right to
sue accrues. See syl. pt. 1, Jones v. Trustees of Bethany College,
351 S.E.2d 183 (W. Va. 1986); Sansom v. Sansom, 137 S.E.2d 1, 4 (W.
Va. 1964).1

Under West Virginia Code § 55-2-12(b) (the default

1

Although the plaintiff did not respond, this Court should
address that she had claims pending with the United States Equal
Employment Opportunity Commission (“EEOC”) before bringing this
case.
This Court found, however, that those claims were timebarred and thus they have been dismissed. ECF No. 23. However, to
ensure that all issues are covered, this Court notes that under
West Virginia law, even if the statute of limitations was tolled
6

statute of limitations for personal injury claims), the statute of
limitations runs after two years.

See Conaway, 358 S.E.2d at 427.

Conaway v. E. Associated Coal Corp., 358 S.E.2d 423, 427 (W. Va.
1986).

Additionally, the statute of limitations on a claim under

the WVHRA is two years and is only tolled for equitable reasons.
Wilfong v. Chenoweth Ford, Inc., 451 S.E.2d 773, 779 (1994)
(citations omitted). No equitable reasons appear to this Court, by
way of the record provided in this action, for tolling the two-year
statute of limitations under the WVHRA.

Accordingly, under either

the default statute or the WVHRA, the statute of limitations would
still be two years and the plaintiff’s claim would still be timebarred because she filed this action more than four years after the
alleged wrongful conduct.

Based on the untimely nature of the

plaintiff’s complaint in this case, this Court finds that the
plaintiff has in fact failed to diligently bring the claim charged
in Count II. Accordingly, this Court finds that Count II should be
dismissed.

because the plaintiff’s age or race discrimination action was
pending before the EEOC after she was issued a notice of right to
sue, that tolling “does not act to toll the statute of limitations
from running on [her] other causes of action.”
Conaway v. E.
Associated Coal Corp., 358 S.E.2d 423, 427 (W. Va. 1986).
Accordingly, this Court will consider the remaining actions under
the individually applicable statute of limitations for each and
will not consider any tolling that may have occurred because of the
EEOC proceedings.
7

2.

Count IV: Wrongful Termination

The defendants argue that plaintiff’s Count IV, wrongful
termination, should be dismissed because the claim is time-barred
by the default two-year statute of limitations under West Virginia
law.

Further, the defendants contend that the claim is dependent

on the allegations made by the plaintiff that the defendants
discriminated against the plaintiff based on age or race, and those
claims have already been dismissed by this Court based on the
defendants’ motion for partial summary judgment.
Wrongful discharge is a tort action.

Conaway, 358 S.E.2d at

427 (W. Va. 1986) (citing Harless v. First Nat’l Bank, 246 S.E.2d
270, 275 n.5 (W. Va. 1978)). Accordingly, under West Virginia Code
§ 55-2-12(b) (the default statute of limitations for personal
injury claims), the statute of limitations runs after two years.
See

Conaway,

358

S.E.2d

at

427.

As

stated

previously,

the

plaintiff’s right to bring suit began on November 20, 2007 and she
filed this suit on April 25, 2012.

Thus, the plaintiff’s claim as

to wrongful termination is time-barred under the applicable twoyear statute of limitations. As such, this Court will not consider
the defendants’ other assertion for dismissal of this claim.
3.

Count V: Outrageous Conduct

The

defendants

next

assert

that

plaintiff’s

Count

V,

outrageous conduct, is also time-barred under a two-year statute
of limitations pursuant to Travis v. Alcon Labs., Inc., 504 S.E.2d
8

419, 433 (W. Va. 1998), which sets out the applicable statute of
limitations for outrageous conduct claims.

In Travis, the West

Virginia Supreme Court held that “in claims for intentionally or
recklessly

inflicted

emotional

distress

that

arise

from

a

termination of employment, the two-year statute of limitation for
personal injuries begins to run on the date of the last extreme and
outrageous conduct, or threat of extreme and outrageous conduct,
which precipitated the termination of employment.”

See also

McCammon v. Oldaker, 516 S.E.2d 38, 47 (W. Va. 1999) (“[T]he
two-year limitation period begins to run on the date of the last
extreme and outrageous conduct.”).

As stated previously, this

action was brought over four years after the plaintiff claims the
last wrongful conduct occurred by the defendants.

Thus, the

plaintiff is time-barred from pursuing her outrageous conduct claim
under Count V.
4.

Count VI: Failure to Protect

The defendants also contend that the same default statute of
limitations under West Virginia law applies to plaintiff’s Count
VI, failure to protect.

Further, the defendants assert that there

is no recognizable cause of action for failure to protect in the
area of employment law in West Virginia.
The West Virginia Supreme Court has applied the default twoyear statute of limitations for personal injury claims to failure
to protect claims.

See Merrill v. W. Va. Dep’t of Health & Human

9

Res., 632 S.E.2d 307, 311 (W. Va. 2006).

To reiterate, the

plaintiff failed to bring this action within two years of the
alleged wrongful conduct.
barred.

Accordingly, this claim is also time-

As such, this Court declines to consider the defendants’

contention that there is no recognizable cause of action for
failure to protect under West Virginia employment law.
5.

Count VII: Unlawful Conduct

The

defendants

argue

that

the

same

default

statute

of

limitations under West Virginia law applies to the plaintiff’s
claim that the defendants engaged in unlawful conduct.

Further,

the defendants assert that this claim is redundant because the
plaintiff is only claiming that the defendants acted unlawfully
because

of

the

other

allegations

made

in

the

complaint.

Additionally, the defendants contend that the plaintiff fails to
state a claim under this allegation because there is no specific,
independent cause of action for unlawful conduct described in the
complaint.
This

Court

has

not

found

West

Virginia

precedent

that

indicates that the default statute of limitations under West
Virginia Code § 55-2-12(b) does not apply to an unlawful conduct
claim.

Accordingly, the applicable statute of limitations that

applies to the personal injury claim alleged by the plaintiff in
Count VI is two years. Thus, because the plaintiff failed to bring
her claim within two years, but rather brought it after more than

10

four years, her claim as to unlawful conduct by the defendants is
time-barred.

Because

this

claim

is

time-barred,

this

Court

declines to consider the defendants’ other assertions as to the
redundancy of this claim or the plaintiff’s failure to state a
claim under Count VI.
6.
As

Count VIII: Slander and Libel
to

plaintiff’s

Count

VIII,

slander

and

libel,

the

defendants argue that it is time-barred by the applicable one-year
statute of limitations.

Additionally, the defendants assert that

the plaintiff cannot bring a slander or libel claim against Vargo
for statements he made to an EEOC employee who was investigating
the plaintiff’s claim.

Further, the defendants contend that the

plaintiff testified at her deposition that she was not aware of any
statement made by Vargo about her but was merely speculating as to
the fact that he said something about her.
“Under West Virginia law, slander . . . is simply defamation
through oral means . . . [and] libel . . . is the written form of
defamation . . . .”

Butts v. Royal Vendors, Inc., 504 S.E.2d 911,

916 (W. Va. 1998) (citation omitted).

Further, West Virginia Code

§ 55-2-12(c) establishes a one-year limitations period for the
bringing of defamation actions. Padon v. Sears, Roebuck & Co., 411
S.E.2d 245, 247 (W. Va. 1991).

It is unclear from the testimony

given by the plaintiff in her deposition exactly when the libel
and/or slander took place.

The plaintiff claims that Vargo may

11

have written letters about her; that the representative from the
EEOC, Roosevelt Bryant (“Bryant”), was told something adverse by
Vargo; that the secretary at the Weirton Housing Authority had been
told something adverse by Vargo; and an unknown woman at a bank
stated that she hoped the plaintiff would win this case and that
Vargo was “dirty.”

However, there are no specific dates given for

these instances either by the plaintiff or by the defendants.
The

defendants

claim,

however,

that

the

last

adverse

employment action occurred over four years before the plaintiff
filed, per the plaintiff’s testimony, and that date should be used
as the date which began the limitation period to bar this claim.
Under West Virginia precedent, “in defamation actions the period of
the statute of limitations begins to run when the fact of the
defamation becomes known, or reasonably should have become known,
to the plaintiff.”

Padon, 411 S.E.2d at 248.

Thus, the one-year

statute of limitation for the plaintiff’s defamation claims would
not have begun to run until she was made aware or should have known
that Vargo had written something untruthful about her or had said
something untruthful about her.

It appears, however, that one of

those claims would be time-barred.
First, the plaintiff’s claim as to the conversation she had
with Gloria Waters, the secretary at the Weirton Housing Authority
when the plaintiff was terminated, occurred the day she was
terminated according to the plaintiff’s testimony.

12

Accordingly,

that claim would be time-barred because it occurred over four years
ago.

As to the rest of the claims, relating to the possible

slander with Bryant, the woman at the bank, and the letters
allegedly written about the plaintiff by Vargo, it is unclear when
these allegedly occurred and thus unclear whether or not they are
time-barred by the one-year statute of limitations. However, those
claims fail for other reasons.
As the defendants indicated, the plaintiff’s claim regarding
Bryant will not uphold an allegation of defamation because Vargo
made statements to him about the plaintiff because of the official
investigation conducted by the EEOC.

“[T]o have a defamation

claim, a plaintiff must show that false and defamatory statements
were made against him, or relating to him, to a third party who did
not have a reasonable right to know, and that the statements were
made at least negligently on the part of the party making the
statements, and resulted in injury to the plaintiff.”

Belcher v.

Wal-Mart Stores, Inc., 211 W. Va. 712, 719, 568 S.E.2d 19, 26
(2002).

In this case, Bryant had a reasonable right to know what

Vargo felt the plaintiff had done to support his claims in his own
defense that the plaintiff was not the subject of discrimination or
other wrongful conduct.

Further, the West Virginia Supreme Court

has held that such defamatory statements are protected when made
“during the course and as part of, the judicial proceeding . . . if
the matter has some relation to the proceeding.”

13

Collins v. Red

Roof Inns, Inc., 566 S.E.2d 595, 598 (W. Va. 2002) (citation
omitted). Because the statements allegedly made by Vargo were made
to an EEOC official who was investigating the plaintiff’s claim,
she cannot claim that they were defamatory.

Bryant was a third

party who had a reasonable right to know and thus this claim fails
because the plaintiff cannot prove an essential element of a
defamation claim.
As to the plaintiff’s claim that a woman mentioned the case to
her at a bank, that claim does not actually provide any substance
for a slander claim.

The plaintiff did not claim that the woman

had stated that Vargo had actually said something about the
plaintiff, the only claim made by the plaintiff was in regards to
the fact that community members were aware of the action and had a
general feeling of malaise toward Vargo.

Thus, there is no

evidence that any statements were made by Vargo to the woman at the
bank and thus, the plaintiff cannot meet the element required for
a defamation claim that the defamatory statements be made by the
person against whom the defamation claim is brought.
Finally,

as

to

the

plaintiff’s

last

claim,

that

Vargo

“probably had someone type up letters,” the plaintiff’s claim also
fails for not proving an element of a defamation claim.

As the

defendants assert, the plaintiff has not shown that false and
defamatory statements were made against her. Based on the evidence
provided by the record, there is no proof that letters about the

14

plaintiff were typed up except for the plaintiff’s bare assertion
that she believed that Vargo had someone type letters.

Further,

when asked if she knew what Vargo said specifically, she stated she
did not know.

As no other evidence has been provided, the

plaintiff has failed to show that she meets the requirement of a
defamation claim that she show that false and defamatory statements
were made against her.

Accordingly, this claim fails and thus,

Count VIII must be dismissed.
B.

Count III: Breach of Contract
The defendants contend that plaintiff’s Count III, breach of

contract, should be dismissed because the plaintiff’s termination
did

not

breach

a

contract.

To

support

this

assertion,

the

defendants argue that at all times she was employed by the Weirton
Housing Authority the plaintiff was an at-will employee.

Further

in support of this assertion, the defendants provide excerpts from
the employee handbook which state that all employees are at-will
and that the provisions of the handbook may be deviated from at the
director’s

discretion.

These

passages

are

important,

the

defendants argue, because the handbook informed the plaintiff that
her employment was at-will, that she can be discharged for any
reason (because the provisions are at the director’s discretion),
and that nothing can alter the at-will status.

Additionally, the

defendants indicate that the plaintiff testified at her deposition
that she was not aware of any contract that was in place, either

15

oral or otherwise, while she was employed by the Weirton Housing
Authority.
The West Virginia Supreme Court set forth the following
standard for cases in which an employee claimed that an employee
handbook created a contractual employment relationship rather than
an at-will status of employment:
In West Virginia, the law presumes that employment is
terminable at will, permitting an employer to discharge
an employee for cause, for no cause, or even for wrong
cause. “When a contract of employment is of indefinite
duration it may be terminated at any time by either party
to the contract.”
Syl. pt. 2, Wright v. Standard
Ultramarine and Color Co., 141 W. Va. 368, 90 S.E.2d 459
(1955). However, “[c]ontractual provisions relating to
discharge or job security may alter the at will status of
a particular employee.”
Syl. pt. 3, Cook v. Heck’s,
Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
Thus,
employees sometimes argue that they have a unilateral
employment contract because of what they perceive as
promises of job security contained in an employee
handbook.
In syllabus point 6 of Cook, we recognized that “[a]n
employee handbook may form the basis of a unilateral
contract if there is a definite promise therein by the
employer not to discharge covered employees except for
specified reasons.” We further delineated our position
on this point in Suter v. Harsco Corp., 184 W. Va. 734,
403 S.E.2d 751 (1991), in which we stated that “[a]n
employer may protect itself from being bound by any and
all statements in an employee handbook by placing a clear
and prominent disclaimer to that effect in the handbook
itself.” Id. at syl. pt. 5. We also added that “[a]n
employer may protect itself . . . by providing in the
employment handbook that the handbook’s provisions are
not exclusive.” Id. at syl. pt. 4. Thus, a disclaimer
clearly displayed in the handbook can preserve the at
will status of the employment.
Mace v. Charleston Area Med. Ctr. Found., Inc., 188 W. Va. 57, 63,
422 S.E.2d 624, 630 (1992).

The employee handbook in question
16

states four times, in different ways, that employment at the
Weirton Housing Authority is at-will employment.

Further, the

employee handbook states four times that it is not a contract and
that no employee or supervisor may change the terminable at-will
status of an employee.

Finally, the handbook also states four

times that employment may be terminated with or without cause, at
any time. Thus, pursuant to West Virginia law, the Weirton Housing
Authority

has

set

forth

several

disclaimers

in

its

employee

handbook that would preserve the at-will status of its employees.
Additionally,

the

plaintiff’s

own

statements

made

during

her

deposition show that she was free to quit at any time and that she
could not recall any agreement that guaranteed her employment for
a certain amount of time.

Accordingly, because of the presumption

of at-will employment, the several disclaimers made in the employee
handbook, and the statements of the plaintiff made during her
deposition, this Court finds that a breach of contract could not
have occurred because there was not an employment contract in place
between the plaintiff and the Weirton Housing Authority.

The

plaintiff was an at-will employee. As such, plaintiff’s Count III,
breach of contract, fails and must be dismissed.
C.

Second Count V: Breach of Implied Covenant of Good Faith and
Fair Dealing
Finally, as to the plaintiff’s second Count V, breach of

implied covenant of good faith and fair dealing, the defendants
argue that this claim should be dismissed because that type of
17

action can only be brought by an employee who was under contract.
Thus, because the plaintiff was an at-will employee, she cannot
bring this claim.
As the defendants indicate in their brief, West Virginia “law
is well-settled:

[West Virginia] do[es] not recognize the implied

covenant of good faith and fair dealing in the context of an
at-will employment contract.”

Miller v. Massachusetts Mut. Life

Ins. Co., 193 W. Va. 240, 244, 455 S.E.2d 799, 803 (1995).

As

stated previously, the plaintiff was an at-will employee and there
is no evidence that she was at any time a contract employee.

Thus,

the plaintiff’s second Count V must be dismissed because it is
supported by a claim that the plaintiff is not qualified to assert.
V.

Conclusion

Based on the analysis above, the defendants’ motion for
summary judgment is hereby GRANTED.

It is further ORDERED that

this case be DISMISSED WITH PREJUDICE 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.

18

DATED:

January 29, 2014

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

19