Flatt v. Lowe's Home Centers, LLC et al

Filing 28

MEMORANDUM OPINION AND ORDER granting the defendants' 25 MOTION for Summary Judgment; the court DISMISSES this matter from the docket. Signed by Judge Joseph R. Goodwin on 4/18/2019. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
VICKI L. FLATT
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00570

LOWE’S HOME CENTERS, LLC, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the court is the defendants’ Motion for Summary Judgment

[ECF No. 25]. The deadline for the filing of a response has passed, and the plaintiff
has not filed a response. For the reasons that follow, the Motion is GRANTED.
II.

Background
Defendant Lowe’s Home Centers, LLC (“Lowe’s”) hired the plaintiff as a

customer service associate in 2008 at its Beaufort, South Carolina store. In 2010, the
plaintiff was promoted to department manager. In November 2014, the plaintiff
requested a transfer to the Nitro, West Virginia store, which Lowe’s approved.
Defendant Michael Dorsey worked as the manager at the Nitro store.
In 2016, the plaintiff began using intermittent leave under the Family and
Medical Leave Act (“FMLA”) after she was diagnosed with lung cancer. After her

twelve weeks of FMLA leave expired, she began using continuous leave pursuant to
the Americans with Disabilities Act.
In January 2017, Lowe’s eliminated all department manager positions
nationwide. Lowe’s replaced the department manager positions with a reduced
number of service and support manager positions. Former department managers
were given the option to apply for these new positions. Moreover, former department
managers who applied for these new positions but were not selected were given an
opportunity to work for Lowe’s for an additional year as a customer service associate
with no change in pay while they applied for other jobs within Lowe’s.
The plaintiff in this matter applied for one of the new positions but was not
selected. Because the plaintiff was on leave at the time of the restructure, she was
given an additional time to apply for positions after returning to work to ensure that
she had a full year to secure another position. However, the plaintiff did not secure
another position at Lowe’s within that timeframe and was therefore terminated.
The plaintiff filed the instant Complaint [ECF No. 1-1] in the Circuit Court of
Kanawha County on March 12, 2018. The case was removed to this court on April 13,
2018.1 The Complaint contains five counts. Counts One, Two, and Three assert claims
under the West Virginia Human Rights Act (“WVHRA”), alleging that the defendants
failed to rehire the plaintiff because of her age, gender, and disability. Count Four
alleges that the defendants terminated the plaintiff’s employment in retaliation for

On March 6, 2019, the court granted a motion to withdraw filed by the plaintiff’s former counsel. The
plaintiff is now proceeding pro se.
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her use of FMLA benefits, and Count Five alleges that the defendants committed the
tort of outrage. On March 28, 2019, the defendants moved for summary judgment,
requesting that the court dismiss this action with prejudice.
III.

Legal Standard

To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” Lester v. Gilbert, 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

see Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party's case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party. Matsushita Elec.
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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Summary judgment is
appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322–23. The
nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of summary judgment. See Dash v. Mayweather, 731 F.3d 303,
311 (4th Cir. 2013).
IV.

Discussion
a. WVHRA Claims
The WVHRA prohibits employers from discriminating against employees on

the basis of age, gender, and disability. W. Va. Code § 5-11-9. In the absence of direct
evidence of discrimination, courts analyze claims under the WVHRA as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for
the employee’s rejection . . . Third, should the defendant
carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.

Shepherdstown Volunteer Fire Dep’t v. State ex rel. W. Va. Human Rights Comm’n,
309 S.E.2d 342, 352 (W. Va. 1983) (quoting Texas Dep’t of Cmty. Affairs v. Burdine,
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450 U.S. 248, 252–53 (1981)). To make a prima facie case of employment
discrimination, a plaintiff must prove that (1) she is a member of a protected class;
(2) the employer made an adverse decision concerning her; and (3) but for the
plaintiff’s protected status, the adverse decision would not have been made. Syl. Pt.
3, Conaway v. E. Assoc. Coal Corp., 358 S.E.2d 423 (W. Va. 1986).
The court begins with the plaintiff’s age and gender discrimination claims and
finds that the plaintiff has failed to establish a prima facie case. The plaintiff
admitted in her deposition testimony that she did not have any facts to support her
claim that she was not selected for the positions to which she applied during her final
year of employment because of her age or gender. When asked what facts support the
claim that the plaintiff did not obtain one of the positions to which she applied
because of her age, the plaintiff responded, “None.” Vicki Flatt Dep. (“Pl.’s Dep.”)
[ECF No. 25-1] 144:4. When asked what facts support her claim that she did not
obtain a position to which she applied because of her gender, she replied, “No facts.”

Id. at 145:10.
Moreover, the age and gender diversity among the candidates selected for the
positions to which the plaintiff applied demonstrates that the plaintiff has not
established a prima facie case of age or gender discrimination. Out of the 19 positions
to which the plaintiff applied, nine were filled by females. Decl. Michael Dorsey [ECF
No. 25-4] 2. Similarly, nine of the positions were filled by individuals over the age of
40, including seven individuals over the age of 50. Id.; see Laing v. Fed. Exp. Corp.,
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703 F.3d 713, 719 (4th Cir. 2013) (noting that comparator evidence is “especially
useful in discrimination cases”); see also Cox v. Lowe’s Home Ctrs., LLC, No.3:14-cv000679, 2015 WL 7288689, at *6 (W.D.N.C. Nov. 17, 2015) (finding that comparator
evidence prevented the court from drawing any inference of age discrimination and
granting the defendant’s motion for summary judgment). Accordingly, the defendants
have shown that “there is an absence of evidence to support” the plaintiff’s gender
and age discrimination claims. Celotex Corp., 477 U.S. at 325.
The plaintiff has also failed to raise any triable issue of fact regarding her
disability discrimination claim. The only support for the plaintiff’s disability
discrimination claim is an alleged comment by former assistant store manager Joyce
Robinson to another employee. The plaintiff avers that Robinson told another
employee that the plaintiff was not hired for a position because “they were afraid that
it would tire [the plaintiff] out.” Pl.’s Dep. 147:14–15. Even assuming that this
statement is disability-related, the remark at issue is merely “stray or isolated” and
therefore insufficient to prove discrimination. Harris v. Home Sales Co., 499 Fed.
Appx. 285, 291 (4th Cir. 2012). To prove discrimination, the remark must have “some
actual relationship to the adverse employment actions under challenge.” Id.
(emphasis added).
Here, Robinson only interviewed the plaintiff for the front-end support
manager position, but the plaintiff stated in her deposition that Lowe’s failure to hire
her for this position is not a basis for her claims in this lawsuit. Pl.’s Dep. 136:3–11.
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Further, the plaintiff admits that she is not aware that Robinson had any decisionmaking role for any of the other positions to which she applied. The plaintiff also
admits that Robinson would not have knowledge about why she was not hired for
positions in South Carolina. Id. at 148:22–149:7; 156:21–157:8. Importantly, there is
no evidence that any other decisionmaker made any similar comments. See Lasure

v. Sam’s E., Inc., No. 1:14CV127, 2015 WL 8664280, at *8 (N.D. W. Va. Dec. 11, 2015)
(granting summary judgment on an age discrimination claim where one
decisionmaker did not repeat possibly age-related comments and no other
decisionmaker made similar comments). Thus, even if Robinson’s alleged statement
was disability-related, it is merely a stray remark bearing no relationship to the
adverse employment actions that the plaintiff challenges in this action. Accordingly,
the plaintiff’s claim for disability discrimination under the WVHRA must fail.
b. FMLA Claim
To succeed on her FMLA retaliation claim, the plaintiff must first make a
prima facie showing that (1) she engaged in protected activity; (2) her employer took
an adverse employment action against her; and (3) there was a causal link between
the two events. Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 429 (4th Cir.
2015). If the defendant advances a lawful explanation for the alleged retaliatory
action, the plaintiff must “demonstrate that the defendant’s reason for taking the
adverse employment action was pretextual.” Id.

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Here, there is no dispute that the plaintiff has made a prima facie case. The
defendants, however, have advanced a lawful explanation for the alleged retaliatory
action: The plaintiff was discharged as part of a nationwide restructuring after she
was unable to secure a new position within the company. And the plaintiff has failed
to provide any evidence to establish that her termination was pretextual. There is no
evidence to suggest that anyone at Lowe’s commented on her use of FMLA leave or
otherwise prevented her or discouraged her from taking leave. Nor does the plaintiff
even allege that she was treated differently by the defendants because of her use of
FMLA leave. The plaintiff’s retaliation claim is also undermined by the fact that two
former department managers at the Nitro store who used FMLA leave after January
2017 found other positions at Lowe’s in less than one year and were not discharged.

See Decl. Tonya L. Carnes [ECF No. 25-6] 1–2; Decl. Jeffery W. Richardson [ECF No.
25-7] 1–2. Given the complete absence of evidence to support the plaintiff’s retaliation
claim, summary judgment is appropriate.
c. Tort of Outrage
To prevail on a claim for outrage, or intentional infliction of emotional
distress, the plaintiff must establish:
(1) that the defendant’s conduct was atrocious, intolerable,
and so extreme and outrageous as to exceed the bounds of
decency; (2) that the defendant acted with the intent to
inflict emotional distress . . . ; (3) that the actions of the
defendant caused the plaintiff to suffer emotional distress;
and (4) that the emotional distress suffered by the plaintiff
was so severe that no reasonable person could be expected
to endure it.
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Syl. Pt. 3, Travis v. Alcon Labs., 504 S.E.2d 419 (W. Va. 1998). “Whether conduct may
reasonably be considered outrageous is a legal question, which courts determine on a
case-by-case basis.” Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 78 (4th Cir.
2016) (quoting Hines v. Hills Dep’t Stores, Inc., 454 S.E.2d 385, 390 (W. Va. 1994)).
“[C]onduct that is merely annoying, harmful of one’s rights or expectations, uncivil,
mean-spirited, or negligent does not constitute outrageous conduct.” Courtney v.

Courtney, 413 S.E.2d 418, 423 (W. Va. 1991). Here, the plaintiff alleges that she
experienced discrimination and retaliation in the workplace, but the plaintiff has
offered no evidence that the defendants engaged in conduct which may reasonably be
considered outrageous. Further, the plaintiff stated in her deposition that she has no
facts to support her claim of outrage. Pl.’s Dep. 169:6. As such, the plaintiff’s outrage
claim must fail.
V.

Conclusion
For the foregoing reasons, the defendants’ Motion for Summary Judgment

[ECF No. 25] is GRANTED. The court DISMISSES this matter from the docket.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER:

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April 18, 2019