Longanacre v. National Council on Compensation Insurance, Inc.

Filing 51

MEMORANDUM OPINION AND ORDER The 31 Motion for Summary Judgment is GRANTED, in part, and DENIED, in part; the motion is granted to the extent it seeks to dismiss Longanacre's claim under the West Virginia Human Rights Act; the motion is otherwise denied. Signed by Senior Judge John T. Copenhaver, Jr. on 10/1/2021. (cc: counsel of record; any unrepresented parties) (kew)

Case 2:20-cv-00587 Document 51 Filed 10/01/21 Page 1 of 16 PageID #: 2169

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MAUREEN LONGANACRE,
Plaintiff,
v.

Civil Action No. 2:20-CV-00587

NATIONAL COUNCIL ON
COMPENSATION INSURANCE, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is defendant NCCI Holdings, Inc.’s (“NCCI
Holdings”) 1 Motion for Summary Judgment, filed July 12, 2021.
ECF No. 31.
I. Background
This case arises from NCCI Holdings’ termination of
plaintiff Maureen Longanacre (“Longanacre”) in May of 2019.
Compl. ¶ 5, ECF No. 1-1.

It is undisputed that Longanacre began

The named defendant in this case is National Council on
Compensation Insurance, Inc. NCCI Holdings maintains that it
was Longanacre’s employer and therefore the proper defendant.
In a footnote it “requests that the pleadings be amended to
substitute the proper Defendant, NCCI Holdings, Inc.” ECF No.
31, at 1 n.1. The court notes that Longanacre declined to
address this issue in her response and has not, to date, filed
any motions to amend her pleading. Because it was NCCI Holdings
that filed the motion for summary judgment, the court will refer
to the defendant as NCCI Holdings throughout this memorandum
opinion.
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working for NCCI Holdings in January 2003, as a research
analyst.

Mem. Supp. Def.’s Mot. Summ. J., ECF No. 32, at 3

(“ECF No. 32”); Pl. Dep., ECF No. 31-1, at 19, 30.

About a year

later, she became a senior underwriting analyst, and then after
another six to eight months, she became a dispute consultant.
ECF No. 32, at 3; Pl. Dep. 32−33.

Longanacre stayed in her

dispute consultant position until November of 2018.

ECF No. 32,

at 3; Pl. Dep. 33.
Longanacre started working for NCCI Holdings at its
Florida headquarters.

Pl. Dep. 34.

During her tenure at NCCI

Holdings, Longanacre asked for and received three transfers.

In

2006, with NCCI Holdings’ approval, she relocated to Louisiana
for medical and family reasons.

Id.

Once she moved to

Louisiana, she began working from home.

Id. at 35.

Approximately four years later, in 2010, Longanacre was approved
for a transfer to Texas.

Id. at 35−36.

In September 2018,

Longanacre requested and received a transfer from Texas to West
Virginia.

ECF No. 32, at 4; Pl. Dep. 36.
The record is void of any complaints about

Longanacre’s performance from her hiring in 2003 until sometime
in 2018.

NCCI Holdings contends that customers began

complaining about Longanacre as early as March 2018.
32, at 5.

ECF No.

According to NCCI Holdings, Longanacre was given a
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verbal warning sometime after the initial complaint was lodged.
Id.; O’Brien Dep, ECF No. 31-2, at 35−36 (testifying that she
was “sure” she talked with Longanacre about the March 2018
client incident).

NCCI Holdings further maintains that between

March and November 2018, two additional complaints were received
regarding Longanacre’s performance or attitude at work.

ECF No.

32, at 5. 2
On November 8, 2018, Longanacre’s supervisor, Lesley
O’Brien, gave Longanacre a “Written Warning” that detailed her
allegedly unprofessional conduct over the preceding eight
months.

Written Warning, ECF No. 31-1, at 268.

Longanacre

contends that the written warning was the first time NCCI
Holdings raised any problems with her work since her hiring in
2003.

Pl. Dep. 21.
The warning stated as follows:
Any recurrence of the issues we have discussed
(or similar issues) or any failure to make quick
progress towards improving your performance will
result in further disciplinary action up to and
including termination. Your goal is to improve
your performance immediately and to sustain that
improvement.

Although the specific dates of these incidents are not
provided, NCCI Holdings states that one customer asked to have
Longanacre “removed from their file” and a consultant filed a
complaint describing Longanacre as “combative.” ECF No. 32, at
5; Written Warning, ECF No. 31-1, at 268; O’Brien Dep. at 71−75.
2

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As a result of this warning, you are considered
under disciplinary action and are unable to post
for any positions outside of your Division until
your performance meets expectations. You may
however apply for lower level positions within
your Division with management approval.
Written Warning, at 269.
On January 7, 2019, Longanacre also provided a
“Written Warning Response” in which she stated she was
“sincerely sorry if [her] communications were perceived as
unprofessional.”
271.

Written Warning Response, ECF No. 31-1, at

In her response she claimed that she had handled more than

2500 disputes for NCCI and had never “been accused of such
disgusting behavior” in the past.

Id.

Longanacre proceeded to

state, “I understand the need to improve my communications
skills.

I will do my best to ensure that I do not offend

anyone.”

Id.
Longanacre received an End-of-Year Performance Rating

of “Below Expectations” for 2018.
No. 31-1, at 277−83.
February 19, 2019.

2018 Performance Review, ECF

The review was signed by Longanacre on
Id. at 283.

At the time of the review, her

manager stated “2018 was not a good year, but it is a new year
now and I want you to focus on your new role and contributing to
the team.”

Id. at 282.

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Concurrent with the November 2018 written warning,
Longanacre was “transferred” to an underwriting filing
consultant position.

ECF No. 32, at 2.

The nature of this

transfer is branded differently by the parties.

NCCI Holdings

characterizes it as a “lateral transfer within the department”
that limited Longanacre’s contact with customers but still
“leverage[ed] her technical skills and background.”

Id. at 6.

Longanacre, on the other hand, views the transfer as a demotion
in preparation for her planned termination the following May.
Longanacre Dep. 24, 39.

Despite the diverging views of the

transfer, it is undisputed that Longanacre’s pay rate did not
change as a result of the November 2018 transfer.

Longanacre

Dep. 39.
At the time of her transfer, Longanacre was 61 years
old, and her position was filled by a younger employee by the
name of Veruschka Zachtshinsky.

ECF No. 35, at 5; Pl. Dep. 24.

Zachtshinsky testified that she was 43 years old when she took
over the dispute consultant position.
No. 31-6, at 37.
for the position.

Zachtshinsky Dep., ECF

Zachtshinsky was the only candidate considered
Donegan Dep., ECF No. 31-3, at 45. 3

Ms. Donegan is the chief regulatory officer for NCCI
Holdings. Donegan Dep. 5. She testified that she has the
ultimate hiring and firing authority for the regulatory division
Longanacre and Zachtshinsky worked in. Id.
3

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Although Longanacre did not receive the written
warning and transfer until November of 2018, her supervisor
testified that she began thinking about replacing Longanacre
with Zachtshinsky in March.

O’Brien Dep. 96−98.

Longanacre maintains that she trained Zachtshinsky
from December 2018 until at least February 2019 but continued to
help Zachtshinsky as needed until her termination.
at 7; Zachtshinsky Dep. 32−33.

ECF No. 35,

NCCI Holdings contends that

Longanacre’s claim is without merit, as Longanacre admitted
during her own deposition that she did not “really train”
Zachtshinsky.

ECF No. 32, at 8; Pl. Dep. 119.

On May 16, 2019, NCCI Holdings terminated Longanacre.
ECF No. 32, at 8.
her termination.

Longanacre was 61 years old at the time of
ECF No. 32, at 3; Pl. Dep. 24.

Longanacre was

informed of her termination via a virtual meeting with O’Brien
and Yvette Klepper, the human resources director for NCCI
Holdings.

Klepper Dep., ECF No. 31-7, at 92.

O’Brien testified

that she provided Longancre with multiple reasons for her
termination, including that she was difficult to get ahold of on
specific instances and because “some work product stuff that
wasn’t done.”

O’Brien Dep. 49.

Klepper suggested that the

termination was due to Longanacre’s performance, lack of
professionalism, and failure to improve.
6

Klepper Dep. 71−72.

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Longanacre states that she was not given a written
explanation of her termination and avers that the only verbal
explanation she received was that she “was disengaged.”

Pl.

Dep. 24.
NCCI Holdings did not document any verbal or written
warnings or other issues with Longanacre between the written
warning and transfer she received in November 2018 and her
termination in May 2019.

O’Brien Dep. 59, 69−70 (testifying

that she did not recall any documented counseling or additional
written warnings); Donegan Dep. 103 (testifying that she was not
aware of any documented performance or disciplinary issues).
O’Brien insisted, however, that she had “check-in meetings” with
Longanacre during that time.

O’Brien Dep. 60.

After her termination, Longanacre’s position was
filled by someone four to five years her junior.

ECF No. 32, at

8; Klepper Decl., ECF No. 31-5, at ¶ 8.
Longanacre filed her lawsuit on July 20, 2020, in the

Circuit Court of Kanawha County, West Virginia.

Compl. 1.

complaint asserts one cause of action, which states:

Plaintiff Maureen Longanacre’s termination from
her employment was based upon, in whole or in
part, plaintiff’s age, in violation of the West
Virginia Human Rights Act, West Virginia Code §511-9, or alternatively, in violation of the
substantial public policy of the State of West
Virginia as articulated in the decision of the
7

The

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West Virginia Supreme Court of Appeals in Harless
v. First National Bank in Fairmont, 162 W. Va.
116, 246 S.E2d 270 (1978), in that age
discrimination in employment contravenes the
public policy of this State articulated in the
West Virginia Human Rights Act, West Virginia
Code, 5-11-1, et seq.
Id. at ¶ 7.
The case was removed to this court’s docket on

September 9, 2020, on the basis of diversity jurisdiction.
No. 1.

II.

ECF

Legal Standard

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010).

A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.

Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying facts .
. . must be viewed in the light most favorable to the party
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opposing the motion.”
654, 655 (1962).

United States v. Diebold, Inc., 369 U.S.

A party is entitled to summary judgment if the

record, as a whole, could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).

Williams v. Griffin, 952 F.2d

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.
III.

Analysis

A. Age Discrimination Under the West Virginia Human Rights Act
The West Virginia Human Rights Act (“the Act”)
prohibits “employers” from discriminating against employees on
the basis of their race, religion, color, national origin,
ancestry, sex, age, blindness, disability, and/or familial
status.

W. Va. Code § 5-11-9(1); W. Va. Code § 5-11-3(h).

An

“employer” under the Act includes “any person employing twelve
or more persons within the state for twenty or more calendar
weeks in the calendar year in which the act of discrimination
allegedly took place or in the preceding calendar year.”

W. Va.

Code § 5-11-3(d).
NCCI Holdings declares that it does not meet the
definition of an “employer” under the Act because it “did not
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employ twelve (12) or more employees in West Virginia at any
given period in 2018 or 2019.”

ECF No. 32, at 11.

Inasmuch as Longanacre has produced no evidence to
rebut NCCI Holdings’ claim that it did not have the requisite
number of employees in West Virginia to be an employer under the
Act, the court finds that she cannot proceed with this cause of
action.
1997).

See Williamson v. Greene, 490 S.E.2d 23, 29−30 (W. Va.
Accordingly, NCCI Holdings’ motion for summary judgment

as to Longanacre’s West Virginia Human Rights Act claim is
granted.
B. Wrongful Discharge in Violation of Substantial Public Policy
As an alternative to her claim under the West Virginia
Human Rights Act, Longanacre pleads that her termination amounts
to a wrongful discharge in violation of substantial public
policy.

Compl. ¶ 7.
In Harless v. First National Bank in Fairmont, the

Supreme Court of Appeals of West Virginia held that:
The rule that an employer has an absolute right
to discharge an at will employee must be tempered
by the principle that where the employer’s
motivation for the discharge is to contravene
some substantial public policy principle, then
the employer may be liable to the employee for
damages occasioned by this discharge.
Syl., 246 S.E.2d 270, 271 (W. Va. 1978).
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West Virginia caselaw has unequivocally established
that the tenants of the West Virginia Human Rights Act “clearly
constitute[]” a substantial public policy of the state. See
Williamson, 490 S.E.2d at 32−33.

Accordingly, where an employee

is unable to proceed on a cause of action for employment
discrimination under the Act, she may still pursue a Harlesstype action to vindicate her wrongful discharge.

See id. at 33.

The parties disagree on the elements Longanacre must
prove to prevail on her Harless wrongful discharge claim.
Longanacre avers that the court should apply the very framework
that is used to analyze West Virginia Human Rights Act claims.
Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 35, at 12 (“ECF No.
35”).

NCCI Holdings submits that Longanacre must prove each of

the elements for the common law tort of wrongful discharge.

ECF

No. 32, at 15−16.
The court agrees with NCCI Holdings.

West Virginia

caselaw has established that wrongful discharge claims are
analyzed using the analysis set forth in Feliciano v. 7-Eleven,
Inc., 559 S.E.2d 713, 723 (W. Va. 2001).

See Burke v. Wetzel

Cnty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018); see also Mull
v. Griffith, No. 5:17-CV-94, 2019 WL 5295189, at *40−41 (N.D.W.
Va. Oct. 18, 2019).

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Accordingly, the elements of wrongful discharge that
Longanacre must prove are:
1. [Whether a] clear public policy existed and
was manifested in a state or federal
constitution, statute or administrative
regulation, or in the common law (the clarity
element).
2. [Whether] dismissing employees under
circumstances like those involved in the
plaintiff's dismissal would jeopardize the public
policy (the jeopardy element).
3. [Whether t]he plaintiff's dismissal was
motivated by conduct related to the public policy
(the causation element).
4. [Whether t]he employer lacked overriding
legitimate business justification for the
dismissal (the overriding justification element).
Feliciano, 559 S.E.2d at 723.
NCCI Holdings concedes that Longanacre can establish
the first element but argues that she “cannot present any
evidence demonstrating any of the remaining elements.”
32, at 16.

ECF No.

The court disagrees and finds that Longanacre has

produced genuine disputes of material fact as to each of the
elements for wrongful discharge.
As to the causation element, Longanacre has presented
evidence that after a long and largely successful career with
NCCI Holdings, she was twice replaced by younger employees, at
the time of her 2018 transfer and the time of her termination.
Klepper Decl. ¶ 8.

While NCCI Holdings maintains that both of

these employees were over the age of 40 and therefore of
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protected status, West Virginia has adopted the “substantially
younger” rule from O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308 (1996).

See Knotts v. Grafton City Hosp., 786 S.E.2d

188, 187 (W. Va. 2016). 4

Here, the employee who replaced

Longanacre at the time of her transfer, Zachtshinksy, was
substantially younger in age, while her replacement at the time
of her termination was four or five years younger.
Longanacre has also provided evidence that the
employee who filled Longanacre’s position after her November
2018 transfer had less experience in dispute consultation than
Longanacre.

See Donegan Dep. 116 (admitting that Longanacre was

more experienced in dispute consultation than Zachtshinsky). 5

The Supreme Court of Appeals of West Virginia has declined
to adopt “an absolute definition” for “substantially younger,”
and has instead held that a determination should be made on a
case-by-case basis. Knotts, 786 S.E.2d at 198−99. The court
has noted, however, that “age differences of ten or more years
have generally been held to be sufficiently substantial to
satisfy the ‘substantially younger’ rule.” Id. (quoting
Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir.
2003)(internal quotation marks omitted)). Age differences of
less than 10 years are generally not considered to be
substantial in the absence of additional evidence that age was a
factor in the adverse employment decision. See Hoffmann v.
Primedia Special Int. Publ’ns, 217 F.3d 522, 524−25 (7th Cir.
2000); Sayre v. FMRS Mental Health Council, Inc., No. CIV.A.
5:04-0333, 2006 WL 1896603, at *6 n.9 (S.D.W. Va. July 10,
2006), aff'd, 219 F. App'x 329 (4th Cir. 2007).
5
Neither party submitted any argument about the experience
of the employee who replaced Longanacre after her May 2019
termination.
4

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Although the most persuasive of Longanacre’s evidence
pertains to the circumstances surrounding her November 2018
transfer rather than her May 2019 termination, Longanacre has
argued that the transfer was just the first step in NCCI
Holdings’ plan to oust her.

The weight of that argument is yet

to be determined, but at this stage, Longanacre has created a
genuine dispute of material fact as to whether her termination
was causally linked to her protected status as an employee over
the age of 40.
Regarding both the causation and overriding
justification elements, despite NCCI Holdings’ claim that it
terminated Longanacre for her poor performance, Longanacre
testified that she was essentially blindsided by the November
2018 written warning and transfer.

See Pl. Dep. 21.

Longanacre

has also presented evidence that her supervisors contemplated
her transfer months before the majority of the alleged
performance issues.

See O’Brien Dep 96−97.

Moreover, NCCI

failed to document any performance or conduct concerns with
Longanacre between her transfer and termination. 6
To this end, an additional factual dispute remains about
whether NCCI Holdings failed to follow its own progressive
discipline policy. While NCCI Holdings maintains that its
written policy did not require it to follow progressive
discipline steps, Longanacre’s supervisors testified that the
practice existed. Compare Performance Counseling Actions, ECF
No. 31-2, at 143, and Klepper Dep. 17, with O’Brien Dep. 40
6

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Additionally, Longanacre argues that NCCI Holdings has
provided varied reasons for her termination, creating an
inference that the reasons provided are not true.

ECF No. 35,

at 16−17; see Pl. Dep. 24 (testifying that she was told she was
being terminated for being “disengaged”); O’Brien Dep. 49
(testifying she terminated Longanacre for being hard to get
ahold of and for not completing unspecified work product);
Klepper Dep. 71−72 (testifying that Longanacre was terminated
for her poor performance and lack of improvement). 7

Although the

provided reasons for her termination could all be reconciled,
when viewed in the light most favorable to Longanacre, a jury
could find that NCCI Holdings’ stated reasons for terminating
Longanacre are not true.
Finally, given these disputed facts, a material
question also remains as to the jeopardy element of the wrongful
discharge claim.

Should a jury believe the facts as presented

by Longanacre, it could reasonably conclude that dismissing an
employee under similar circumstances would run afoul of West
(testifying as to the existence of the progressive policy), and
Donegan Deo. 117 (testifying that NCCI Holdings does not “axe”
employees “right away,” but works with and coaches them).
7
NCCI Holdings submitted a “Declaration of Yvette Klepper in
Support of Defendant’s Motion for Summary Judgment,” which
purports to have attached the “talking points” O’Brien and
Klepper discussed delivering to Longanacre at the time of her
termination. Klepper Decl., ECF No. 31-5, at 2. No exhibits
are attached to the declaration.
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Virginia’s substantial public policy against discriminatory
terminations.
This is a close case.

However, inasmuch as numerous

factual disputes remain, the court denies NCCI Holdings’ motion
for summary judgment. Longanacre may submit her Harless wrongful
discharge claim to a jury.
IV.

Conclusion

Accordingly, it is ORDERED that defendant NCCI
Holdings, Inc.’s motion for summary judgment is GRANTED, in
part, and DENIED, in part.

The motion is granted to the extent

it seeks to dismiss Longanacre’s claim under the West Virginia
Human Rights Act. The motion is otherwise denied.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER: October 1, 2021

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