Wintz v. Cabell County Commission
Filing
56
MEMORANDUM OPINION AND ORDER granting Defendant's 37 MOTION for Summary Judgment; denying Plaintiff's 39 MOTION for Partial Summary Judgment; and dismissing this case from the docket of the Court. Signed by Judge Robert C. Chambers on 12/15/2016. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DONNA L. WINTZ,
Plaintiff,
v.
CIVIL ACTION NO. 3:15-11696
CABELL COUNTY COMMISSION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Cabell County Commission’s Motion for
Summary Judgment (ECF No. 37) and Plaintiff Donna L. Wintz’s Motion for Partial Summary
Judgment (ECF No. 39). The Court heard argument on the motions on November 28, 2016. For
the following reasons, the Court GRANTS Defendant’s motion and DENIES Plaintiff’s motion.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 31, 2015, Plaintiff filed a Complaint in this Court alleging she was
unlawfully terminated from her position as a deputy clerk at the Cabell County Circuit Clerk’s
Office on April 28, 2015. In her Complaint, Plaintiff alleges her termination interfered with her
rights under the Family Medical Leave Act of 1993 (FMLA) (Count One), constituted retaliation
for her exercising her rights and engaging in protected activity under FMLA (Count Two),
violated the West Virginia Human Rights Act’s (WVHRA) prohibition against disability
discrimination and age discrimination (Counts Three and Four), resulted in negligent infliction of
emotional distress (Count Five), and amounted to a tort of outrage (Count Six). Defendant now
moves for summary judgment as to all these claims, and Plaintiff moves for summary judgment
as to some of her claims. Plaintiff also agreed to no longer proceed on her claim for age
discrimination.1 Therefore, without further discussion, the Court GRANTS summary judgment in
favor of Defendant as to that claim.
It is undisputed that prior to her termination Plaintiff was diagnosed with cancer
and had surgery in March 2015. Plaintiff missed approximately one month of work and returned
to work without restrictions on April 8, 2015.2 When she returned, Plaintiff missed a few hours of
work on a few days because she purportedly was not feeling well. Approximately three weeks after
Plaintiff returned to work, she was terminated. At the time, the Circuit Clerk, Jeff Hood, did not
give a specific reason for her termination. Instead, Plaintiff asserts he merely told Plaintiff she was
fired because “this is not working out.” Statement of Donna Wintz (Apr. 30, 2015), ECF No. 399, at 2. Similarly, Mr. Hood wrote on an unemployment compensation form that Plaintiff was
discharged because she was “[n]ot a fit.” Id. at 1.
Plaintiff states she worked as a deputy clerk for nearly 13 years. Prior to her
termination, Plaintiff’s duties included processing mental hygiene and legal guardianship petitions
and performing counter duties. It is not contested that the processing of these petitions is a serious
matter which needs to be done correctly. During her tenure, Plaintiff asserts she never received a
negative performance evaluation, nor was she informed her work was unsatisfactory. Although
1
Pl.’s Resp. in Opp. to Def.’s Mot. for Summ. J., at 2 n.1.
Medical records dated April 6, 2016, show that Plaintiff’s urologist did recommend she
see her primary care physician regarding her alcohol dependence. Urology Note by Rocco
Morabito, Jr., M.D. (Apr. 6, 2016), ECF No. 37-7.
2
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Fay Allen, the circuit clerk’s office manager, maintained notes about Plaintiff’s work and behavior,
some of which were unfavorable, those notes apparently were not shared with Plaintiff.
Despite a poster on FMLA displayed in the office, Plaintiff states that at no time
during her diagnosis or treatment for cancer was she provided written notice of her rights and/or
eligibility under FMLA, and there was nothing about FMLA in the employee handbook. However,
Janet McCoy, the deputy clerk in charge of keeping time and tracking leave, averred in an affidavit
that she told Plaintiff about her rights under FMLA prior to her surgery and explained to her the
office policy was that an employee must exhaust all accumulated sick and annual leave before the
employee could use FMLA. Aff. of Janet McCoy, at 1 (Sept. 28, 2016), ECF No. 37-13, at 2.
According to Ms. McCoy, Plaintiff told her she did not want to use “all of her annual leave because
she did not want to give up her previously planned vacation for the year which was an annual timeshare.” Id. at 1-2, ECF No. 37-13, at 2-3. When Plaintiff took off for her surgery she had over
twenty-seven days of sick leave available. When she was released to return to work she had over
four days remaining. She also had twenty-four accrued paid vacation days at the time she was
terminated.
In response to Plaintiff’s motion and in support of its own motion, Defendant points
to the fact that Plaintiff had a significant drinking problem. In 2012, Plaintiff was given seven days
off to attend rehabilitation. Plaintiff states she was sober for a year, but she admits she regularly
drank alcohol in 2015, including during the workday. Plaintiff testified at her deposition that she
“[m]ainly would buy beer at noon. . . . And then I’d drink in the evenings.” Dep. of Donna Wintz,
at 34-35, ECF No. 37-3, at 12. However, she stated she sometimes drank one or two beers in her
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car during her lunch hour, but she denied it impaired her ability to do her work. Id. at 37, ECF No.
37-3, at 13.
On the other hand, Defendant asserts that Plaintiff’s alcohol use seriously interfered
with her job performance. Ms. Allen stated at her deposition that she could smell alcohol on
Plaintiff at work, she observed Plaintiff act inappropriately with the public, and she recalled
members of the public expressing concern about Plaintiff’s actions. Dep. of Fay Allen, Ex. 2 at 32
& 35-36, ECF No. 37-2, at 12-13. Ms. Allen said she spoke with Plaintiff about her dealings with
the public, but the behavior continued. Id. at 35, ECF No. 37-2, at 12. Although Plaintiff appeared
to perform her job well her first week back to work following her surgery, Ms. Allen reported that,
thereafter, she “had extreme body odor,” confusion, slurred speech, difficulty understanding, and
erratic behavior. Id. at 40-42, ECF No. 37-2, at 14. Ms. Allen further said the office received
telephone calls from individuals who were concerned that Plaintiff gave them inaccurate
information about mental hygiene petitions and guardianship hearings. Id. at 42-43. Based upon
these problems, Ms. Allen believed Plaintiff “was not able to do her job.” Id. at 43.
Others also observed Plaintiff’s behavior. Erin Carter, who worked as a deputy
clerk, believed Plaintiff was drinking during the workday both before and after her surgery. Ms.
Carter said she noticed Plaintiff was wobbly, had slurred speech, and was sluggish. Dep. of Erin
Carter, 28-29, ECF No. 37-9, at 11. She also stated Plaintiff would give wrong information to the
public. Id. at 31. Similarly, Debra Wise, who worked as a deputy clerk, noticed work-related issues
with Plaintiff. Ms. Wise stated in her deposition that she worked closely with Plaintiff because she
was Plaintiff’s backup in filing mental hygiene and guardianship petitions. Dep. of Debra Wise, at
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16-17, ECF No. 37-10, at 8. She said that she could smell alcohol on Plaintiff’s breath at work,
saw her stumble when she walked, and noticed she needed help with her duties because she could
not think clearly. Id. at 21, ECF No. 37-10, at 9. She also observed her making mistakes in mental
hygiene cases. She said “[s]ometimes she wouldn’t even put the person’s name in that had the
mental hygiene. She was indexing on wrong cases, putting information—confidential information
on another person’s file and scanning it into the computer.” Id. at 25, ECF No. 37-10, at 10. When
she was drinking and dealing with the public, Ms. Wise said Plaintiff had very slurred speech and
was unprofessional. Id. at 27. Ms. Wise also said that two Mental Hygiene Commissioners
informed her of mistakes in Plaintiff’s work. Id. at 26. Mr. Hood said that the Mental Hygiene
Commissioners also told him they thought Plaintiff acted like she was drinking. Dep. of Jeff Hood,
at 58, ECF No. 37-11, at 17.
II.
STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that there is no genuine
issue 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). 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. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson,
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477 U.S. at 256. 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. v. Catrett, 477 U.S. 317,
322-23 (1986). 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.
III.
DISCUSSION
FMLA authorizes eligible employees “a total of 12 workweeks of leave during any
12-month period . . . [b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). It is unlawful
under FMLA for an “employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise any right provided” by the Act. 29 U.S.C. § 2615(a)(1). Similarly, although FMLA does
not specifically address retaliation by terminating an employee who uses or attempts to use leave
under the Act, 29 C.F.R. § 825.220(c) prohibits “retaliating against an employee . . . for having
exercised or attempted to exercise FMLA rights.” 29 C.F.R. § 825.220(c), in part. “Courts have
recognized that the FMLA provides a cause of action for retaliation.” Dotson v. Pfizer, Inc., 558
F.3d 284, 295 (4th Cir. 2009) (citing Blankenship v. Buchanan Gen. Hosp., 140 F. Supp.2d 668,
671–72 (W.D. Va. 2001)).
In Plaintiff’s first two claims she asserts Defendant interfered with her rights under
FMLA because it failed to provide her written notice of her eligibility and because Defendant
retaliated against her by terminating her shortly after she returned to work. With respect to notice,
the Fourth Circuit has stated FMLA provides that employers covered by the Act must “provide an
individual, written notice to affected employees that an absence qualifies under the FMLA.”
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Vannoy v. The Fed. Reserve Bank of Richmond, 827 F.3d 296, 301 (4th Cir. 2016) (citing 29 C.F.R.
§ 825.300). “The purpose of the employer notice requirements ‘is to ensure that employers allow
their employees to make informed decisions about leave” Id. (citation omitted). There are two
kinds of notice that must be given to employees eligible for FMLA. One is a “[r]ights and
responsibilities notice” found in 29 U.S.C. § 825.300(c) and the other is a “[d]esignation notice”
found in 29 U.S.C. § 825.300(d). When notice is not given, it “‘interfere[es] with’ the exercise of
an employee’s rights.” Id. (quoting 29 C.F.R. § 825.220(b)). However, “if a notice violation
occur[s], the ‘FMLA’s comprehensive remedial mechanism’ grants no relief absent a showing that
the violation prejudiced” the employee. Id. (quoting Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 89 (2002)). In other words, to state a claim for interference, an employer must have
violated the notice requirements and the plaintiff must “show prejudice deriving from that
violation[.]” Id. “Prejudice may be gleaned from evidence that had the [employee] received the
required (but omitted) information regarding his FMLA rights, [the employee] would have
structured his leave differently.” Id. at 302 (citations omitted).
Here, Plaintiff has presented evidence that she did not receive written notice as
required. Thus, Plaintiff has evidence of a violation of the Act. However, Plaintiff has presented
no evidence that she was prejudiced by a lack of notice. Although Plaintiff argues her failure to
receive written notice prevented her from making an informed decision about taking leave, there
is no evidence she could have structured her FMLA leave any differently if she did receive written
notice. In fact, it is clear that Defendant’s policy was that Plaintiff was required to exhaust all of
her sick and annual leave before she was eligible to take leave under FMLA, and Plaintiff still had
over four days of sick leave and twenty-four accrued paid vacation days remaining. Despite the
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fact Plaintiff stated in her deposition she would have taken FMLA, she also said she did not know
she first had to use all her sick and annual leave. Dep. of Donna Wintz, at 42-43, ECF No. 37-3, at
14.3 The evidence shows that Plaintiff did use some of her sick leave after she returned to work
because she was not feeling well, but she did not exhaust it and she was fully released by her doctor
without restrictions. Thus, Plaintiff never even reached the point in which she could have even
accessed her FMLA. Additionally, Plaintiff denied that drinking impacted her work, and she never
indicated to Defendant she needed time off to receive alcohol treatment. Under these
circumstances, the Court finds Plaintiff suffered no prejudice due to her failure to receive written
notice. Therefore, the Court GRANTS summary judgment for Defendant on this claim.
With respect to her claim of retaliation, Plaintiff’s evidence must be evaluated
under the burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Vannoy, 827 F.3d at 304. Under this framework, Plaintiff “‘must first make a prima
facie showing that [she] engaged in protected activity, that the employer took adverse action
against [her], and that the adverse action was causally connected to the plaintiff’s protected
activity.’” Id. (quoting Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006)).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to “offer[] a non-
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Defendant asserts the policy was explained orally to Plaintiff. Plaintiff denies she was ever
told about the policy, and she argues Defendant was required to tell her if her paid leave was to be
substituted for unpaid FMLA leave. See 29 U.S.C. § 825.300(d)(1) (stating in part: “If the
employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken
under an existing leave plan be counted as FMLA leave, the employer must inform the employee
of this designation at the time of designating the FMLA leave”). However, as indicted by
Defendant, its policy does not require paid leave to be substituted for or counted against leave
under FMLA. Instead, its policy is more generous in that it allows an employee to take paid sick
and annual leave and then use an additional twelve weeks of leave under FMLA. Therefore, the
Court finds no merit to Plaintiff’s argument.
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retaliatory reason of the adverse action[.]” Id. If Defendant proffers such evidence, then the burden
shifts back to Plaintiff to establish Defendant’s proffer “‘is pretest for FMLA retaliation.’” Id.
(quoting Yashenko, 446 F.3d at 551).
In analyzing the facts presented in this case under this standard, the evidence
demonstrates Plaintiff took sick leave for a serious medical condition and she was terminated
shortly after she returned to work. Assuming arguendo Plaintiff’s evidence is sufficient to state a
prima facie case of retaliation, the Court finds Defendant has offered a non-discriminatory reason
for her termination and Plaintiff has failed to offer sufficient evidence that Defendant’s proffer is
pretextual.
Here, the Court finds overwhelming evidence that Plaintiff was terminated because
her alcohol use was seriously interfering with her job performance. Plaintiff’s co-workers, the
mental health commissioners, and the general public all had concerns and/or complained about
Plaintiff’s behavior. As stated above, these individuals reported that Plaintiff was confused, had
slurred speech, was stumbling, had extreme body odor, had erratic behavior, made mistakes in
handling petitions, was unprofessional, and smelled and appeared as if she was drinking while at
work. Plaintiff admitted in her deposition that she regularly drank in 2015, and she said she
sometimes drank during her lunch hour. Dep. of Donna Wintz, at 34-37, ECF No. 37-3, at 12-13.
She further did not deny that Defendant had a policy that an employee could be terminated
immediately if the employee drank during working hours. Id. at 39-40, ECF No. 37-3, at 13-14.
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Although Plaintiff believes she was doing a good job when she was terminated,
Plaintiff’s subjective beliefs are insufficient to rebut Defendant’s evidence demonstrating
otherwise. See Vannoy, 827 F.3d at 305 (“‘[A] plaintiff’s own assertions of discrimination in and
of themselves are insufficient to counter substantial evidence of legitimate non-discriminatory
reasons for a discharge.’” (Quoting Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749 (4th Cir.
1999)). Likewise, the Court finds the temporal proximity of Plaintiff taking sick leave and her
termination does not support her claim that the reasons proffered by Defendant are pretextual.
Plaintiff has produced no evidence she was fired because she used or attempted to use FMLA
leave. In fact, as previously stated, Plaintiff was not even able to use her leave under FMLA
because she had not yet exhausted her sick and annual leave. Therefore, considering the evidence
in the light most favorable to Plaintiff, the Court finds no basis upon which a reasonable juror
could find in her favor on her claim of retaliation. Thus, the Court GRANTS summary judgment
in favor of Defendant on Plaintiff’s retaliation claim.
Turning next to Plaintiff’s claim of disability discrimination under the West
Virginia Human Rights Act (WVHRA), West Virginia Code § 5-11-1 et seq., Plaintiff asserts she
is an individual with a disability because of her cancer surgery and knee problems. She also argues
Defendant should have provided her with reasonable accommodations for alcohol dependence.
The WVHRA defines a disability as:
(1) A mental or physical impairment which substantially limits one
or more of such person's major life activities. The term “major life
activities” includes functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working;
(2) A record of such impairment; or
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(3) Being regarded as having such an impairment.
For the purposes of this article, this term does not include persons
whose current use of or addiction to alcohol . . . prevents such
persons from performing the duties of the job in question or whose
employment, by reason of such current alcohol . . . use, would
constitute a direct threat to property or the safety of others.
W. Va. Code § 5-11-3 (m), in part (italics added). In this case, Plaintiff’s doctor released her to
return to work without any restrictions. During her deposition, Plaintiff further said she could
perform every basic life function when she was terminated. Dep. of Donna Wintz, at 56, ECF No.
37-3, at 18. In addition, there is no evidence Defendant regarded her as an individual with a
disability when she returned to work. Therefore, the Court finds no evidence Plaintiff was either
actually disabled or perceived as being disabled at the time she was terminated within the meaning
of the WVHRA.
Plaintiff further contends, however, that Defendant should have accommodated her
alcohol dependence. The WVHRA expressly excludes the use and addiction to alcohol from the
definition of disability when it prevents an individual from performing his or her job or constitutes
a direct threat to safety. See W. Va. Code § 5-11-3(m). If an individual is not disabled, the WVHRA
does not require a reasonable accommodation. See Syl. Pt. 2, Skaggs v. Elk Run Coal Co., 479
S.E.2d 561, 574 (1996) (stating, in part, “[t]o state a claim for breach of the duty of reasonable
accommodation under the West Virginia Human Rights Act, W. Va. Code, 5-11-9 (1992), a
plaintiff must alleged the following elements: (1) The plaintiff is a qualified person with a
disability . . . .”). Here, Defendant has presented more than sufficient evidence to show Plaintiff’s
alcohol dependence prevented her from doing the duties of her job. In fact, as her position involved
the processing of mental health petitions, mistakes in the processing of those petitions raised
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serious safety concerns. Therefore, Defendant was not required to accommodate her for alcohol
dependence4 and GRANTS summary judgment in favor of Defendant on Plaintiff’s claim under
the WVHRA as a matter of law. Similarly, having found in favor of Defendant on Plaintiff’s claims
under FMLA and the WVHRA, the Court finds Plaintiff’s claim of retaliatory discharge under
West Virginia law necessarily fails because Plaintiff cannot show her termination violated any
public policy. Thus, the Court likewise GRANTS summary judgment in favor of Defendant on
this claim.
Lastly, Plaintiff alleges claims for intentional infliction of emotional distress and
the tort of outrage. In light of the evidence fully set forth above, the Court finds Plaintiff’s
termination was fully justified as a result of her drinking and the serious negative effect it had on
her job performance. Defendant neither violated FMLA nor the WVHRA in making its decision
to terminate her. Given the Court’s decision above, there is simply no basis for Plaintiff’s claims
of outrage or intentional infliction of emotional distress. Therefore, the Court GRANTS summary
judgment in favor of Defendant on this claims.
IV.
CONCLUSION
Accordingly, for the reasons stated above, the Court GRANTS summary judgment
in favor of Defendant, DENIES the like motion of Plaintiff, and DISMISSES this case from the
docket of the Court.
4
In fact, Plaintiff denied her drinking caused her any problems at work.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:
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December 15, 2016
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