McCoy v. Diamond Electric Mfg. Corporation

Filing 37

MEMORANDUM OPINION AND ORDER granting Defendant's 25 Motion for Summary Judgment as to counts one, three, and four of the complaint, and denying Defendant's Motion as to count two of the complaint. Signed by Judge Robert C. Chambers on 2/19/2019. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SHEILA L. McCOY,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-4329

DIAMOND ELECTRIC
MFG. CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Motion for Summary Judgment submitted by Defendant
Diamond Electric Mfg. Corporation. Def.’s Mot. for Summ. J., ECF No. 25. Plaintiff alleges, in
her complaint, claims against Defendant under four causes of action: (1) Family Medical Leave
Act (“FMLA”) interference; (2) FMLA retaliation; (3) violation of the West Virginia Human
Rights Act (“WVHRA”); and (4) intentional infliction of emotional distress (“IIED”). See Compl.,
ECF No. 1, at 5–8.
Defendant moves for summary judgment on all four counts Plaintiff asserts against it in
the complaint. Mem. in Supp. of Def.’s Mot. for Summ. J., ECF No. 26, at 10, 14, 17. Defendant
claims it is entitled to summary judgment on counts one, two, and three because Plaintiff has no
evidence that she was either prevented from, or terminated for, exercising her FMLA rights, and
has no evidence that she was terminated because of her allegedly protected status. See id. at 10,
13–14. Additionally, Defendant claims it is entitled to summary judgment on count four because
the way Plaintiff was terminated cannot be considered “outrageous” as a matter of law. See id. at
17.

The parties have fully briefed the issues and the motion is now ripe for adjudication. As
explained below, the Court GRANTS, IN PART, AND DENIES, IN PART, Defendant’s Motion
for Summary Judgment.
I. BACKGROUND
A. Defendant’s FMLA Process
Plaintiff was a production employee for Defendant from May 7, 1997, until December 29,
2016, when she was terminated. Compl., at ¶ 7. Two months before her termination, on October
31, 2016, Plaintiff requested intermittent FMLA leave to care for her father, who was battling lung
cancer, and Defendant approved. See id. at ¶¶ 17–19.
When an employee of Defendant is on intermittent FMLA leave, and requests a day off,
the duties of the employee’s supervisor are simple. The employee calls their supervisor on a day
when they are taking an absence, and the supervisor is not permitted to ask the employee any
questions. Dep. of Crouch, ECF No. 25-4, at 3. The supervisor then writes the employee’s
comments on a “leave request” form, including whether the reason for the leave is the FMLA. See
id. at 3–4. The supervisor then completes her job by sending this form to Human Resources. See
id.
B. The Incident
According to Plaintiff, on December 22, 2016, she called her supervisor, Bonnie Crouch,
and told Ms. Crouch that her finger was bleeding and she needed to see a doctor. Dep. of McCoy,
ECF No. 29-1, at 5. Plaintiff asked Ms. Crouch whether a potential absence due to this injury—
because it occurred while she was caring for her father—would be covered under the FMLA. See
id. Ms. Crouch informed Plaintiff that she did not know the answer, and did not want to give an
answer, because only Human Resources can respond to FMLA questions. See id. Plaintiff then

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called Veronica Blevins, Defendant’s Human Resources manager, explained that she cut her
finger, and asked Ms. Blevins the same question she asked Ms. Crouch: whether an absence in this
situation would be covered under the FMLA. See id. Ms. Crouch answered Plaintiff’s question by
stating that “it was a different instance,” but if Plaintiff “could go to the doctor and get an excuse,
then they would cover it.” Id. After receiving this clarification from Ms. Blevins, Plaintiff called
Ms. Crouch for a second time, and told Ms. Crouch that she “would have to have a doctor’s
excuse.” Id. Ms. Crouch said “no,” and that the leave absence form would “have to [say] FMLA
because you said it was an FMLA.” Id.
Defendant’s version of the events differs greatly from Plaintiff’s. Ms. Crouch testified that
in Plaintiff’s first phone call Plaintiff told her that Plaintiff had cut her hand, and when Ms. Crouch
asked whether Plaintiff was coming into work that day Plaintiff said, “I don’t know,” and that she
would “get back with” her. See Mem. in Supp. of Def.’s Mot. for Summ. J., at 4. Later, according
to Ms. Crouch, Plaintiff called a second time and said, “I’m going to have to take an FMLA day.”
Dep. of Crouch, at 5. Ms. Crouch, as she is trained to do, did not ask any questions and filled out
the leave request form, designating December 22 as an FMLA day for Plaintiff. Id.
According to Defendant, after this phone call Plaintiff called Ms. Blevins and told her that
Plaintiff was “taking an FMLA day” and wanted to know how this would affect her holiday pay.
See Dep. of Blevins, ECF. No. 25-5, at 9. Ms. Blevins explained to Plaintiff that she would not
receive holiday pay unless she had vacation time to run concurrent with her FMLA day. See id. at
4; Mem. in Supp. of Def.’s Mot. for Summ. J., at 6. Upon hearing this explanation, Plaintiff told
Ms. Blevins that she needed to change the reason for her absence from the FMLA to the fact that
she had cut her hand and needed to go to the emergency room. See Dep. of Blevins, at 4–5. Plaintiff
then told Ms. Blevins that she “didn’t want to get in trouble,” and asked Ms. Blevins if Ms. Blevins

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could “get her paperwork and correct her paperwork for her so that she wouldn’t get in trouble.”
Id. at 5. In response, Ms. Blevins explained to Plaintiff that she could not do what Plaintiff
requested, as such an action would be “falsifying records.” Id. Ms. Blevins then immediately
contacted Ms. Crouch and asked her if Plaintiff had called in, and if so, what Plaintiff said to Ms.
Crouch. See id. at 6. Ms. Crouch told Ms. Blevins that Plaintiff had “requested an FMLA day.” Id.
at 7.
C. The Investigation and Termination
Following the incident, Ms. Blevins conducted an investigation. She spoke with Ms.
Crouch, reviewed the holiday policy in Defendant’s handbook, reviewed Plaintiff’s leave request
form, and reviewed Defendant’s employee conduct rules regarding falsifying or misrepresenting
records. See Mem. in Supp. of Def.’s Mot. for Summ. J., at 7. After returning from the holiday
break, Ms. Blevins met with Chad Carte, Defendant’s CFO, discussed the investigation, and made
the decision to terminate Plaintiff’s employment. Exhibit F, ECF No. 25-6, at 2.
On December 29, 2016, Ms. Blevins and Defendant’s Human Resources specialist Chris
Snyder met with Plaintiff to terminate her employment. Dep. of Blevins, at 11. During the meeting,
Ms. Blevins explained to Plaintiff that she was being terminated because she lied about her reason
for an absence and attempted to falsify documents. See id. Ms. Blevins then walked with Plaintiff
to her locker, stayed with her while she removed her items, and explained to Plaintiff that she could
contact her at any time if she had any questions. See id. at 12. Plaintiff thanked Ms. Blevins and
left the property. See id.
On November 16, 2017, Plaintiff filed this action against Defendant, and on December 14,
2018, Defendant filed its motion for summary judgment. ECF Nos. 1, 25. Plaintiff filed her

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response and Defendant filed its reply on January 10, 2019, and January 17, 2019, respectively.
ECF Nos. 29, 30.
II. STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that no genuine issue as to any
material fact remains 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, a 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, a court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587–88 (1986). Any inference, however, “must fall within the range of reasonable probability
and not be so tenuous as to amount to speculation or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citation omitted). Therefore, summary judgment
will not be granted if a reasonable jury could return a verdict for the non-moving party on the
evidence presented. See Anderson, 477 U.S. at 247–48.
III. DISCUSSION
A. Count One: FMLA Interference
Plaintiff’s FMLA interference claim relies upon the conclusion that Defendant “failed to
responsively answer [Plaintiff’s FMLA] questions”—an undisputed violation of the FMLA
according to its regulations. Response in Opp. to Def.’s Mot. for Summ. J., ECF No. 29, at 11.
However, the facts of this case simply cannot support Plaintiff’s conclusion.
The FMLA allows “employees to balance their work and family life by taking reasonable
unpaid leave for … the care of a child, spouse, or parent who has a serious health condition,” 1 and

1

29 CFR § 825.101(a).

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the Act states that “[i]t shall be unlawful for any 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)
(emphasis added). The FMLA regulations state that an employer “interferes” with a right provided
by the FMLA when an employer violates an FMLA regulation. See 29 CFR § 825.101(b). One
such regulation requires employers “to responsively answer questions from employees concerning
their rights and responsibilities under the FMLA.” 29 CFR § 825.300(c)(5). Thus, an FMLA
interference claim will survive a motion for summary judgment if facts exist that could lead a
reasonable juror to conclude that an employer did not responsively answer an employee’s
questions concerning their rights under the FMLA.
Plaintiff argues that Defendant failed to responsively answer her FMLA questions on two
separate occassions. According to Plaintiff, the first failure occurred when Plaintiff asked Ms.
Crouch if her injury was covered under the FMLA, but Ms. Crouch responded that “she did not
know, and did not want to say.” Response in Opp. to Def.’s Mot. for Summ. J., at 10. In isolation,
this statement from Ms. Crouch appears to be a failure of Defendant to responsively answer
Plaintiff’s FMLA question. However, the Court must reach the opposite conclusion when it reads
her statement with the additional undisputed facts below.
First, the Diamond Electric Handbook, which Plaintiff received, 2 states that “[i]nformation
regarding FMLA can be found on the Company Bulletin Board,” and “[f]urther, information may
be obtained through the Human Resources Department.” Exhibit A, ECF No. 30-1, at 3 (emphasis
added). Additionally, Plaintiff’s own testimony demonstrates that she knew Human Resources was
the proper contact source for FMLA questions:
A: Then she said—I asked her, I said, “Does this cover
FMLA, under Family Medical Leave?” And she said, “I
don’t know. I don’t want to say.” So then I –
2

Exhibit C, ECF No. 25-3.

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Q: Because she’s not HR. Right?
A: Because she’s not HR.
Q: Right.
A: Didn’t know. So then I called [Human Resources
manager] Veronica Blevins in her office. 3
The above evidence demonstrates that Plaintiff knew that Defendant’s Human Resources
Department was the proper source for FMLA questions, yet made a deliberate choice to first ask
Ms. Crouch, her shift supervisor. As a matter of common sense, the Court cannot hold that
Plaintiff’s choice to knowingly ask the incorrect employee a question in this situation constitutes
Defendant’s failure to answer Plaintiff’s question. To hold otherwise would require employers to
train every one of its employees how to answer all FMLA questions. Thus, as a matter of law, Ms.
Crouch’s statement to Plaintiff in this particular situation cannot constitute Defendant’s failure to
responsively answer Plaintiff’s FMLA questions. 4
Plaintiff argues that Defendant’s second failure to responsively answer her FMLA question
occurred when Plaintiff asked Ms. Blevins the same question that she previously asked Ms.
Crouch: whether she could use the FMLA for her hand injury. Response in Opp. to Def.’s Mot. for
Summ. J., at 10. According to Plaintiff, Ms. Blevins “told her simply that she would need a doctor’s
excuse” and that “she cannot tell employees what to do or what to use” regarding leave when they
call her. Id. at 10. While Plaintiff argues that Ms. Blevins statements could constitute a failure to
answer her question, the Court cannot reach the same conclusion after reading both Plaintiff’s and
Ms. Blevins’ testimony.

Dep. of McCoy, at 5.
Even if the Court were to hold that Ms. Crouch’s statement was a failure of Defendant to answer Plaintiff’s
FMLA question, for the reasons stated in the next paragraph, Defendant nonetheless “responsively answer[ed]”
Plaintiff’s FMLA question via Ms. Blevins.
3
4

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First, Ms. Blevins did not “simply” tell Plaintiff that she would need a doctor’s excuse.
Rather, Ms. Blevins fully answered Plaintiff’s FMLA question according to Plaintiff’s own
testimony:
Q: And did she tell you that a cut finger does not
qualify for FMLA?
A: She said – she said it was a different instance, but
then she gave me – said that I could come in with –
if I could go to the doctor and get an excuse, then
they would cover it. 5
Second, while Ms. Blevins did testify that she does not tell employees what decision to
make, this statement does not support Plaintiff’s insinuation that Ms. Blevins cannot or does not
answer employees’ questions. Rather, Ms. Blevins was merely differentiating between answering
employees’ questions, which is required under the FMLA, and making employees’ decisions for
them, which is not:
Q: All right. So tell me about the rest of your conversation with
Sheila. I mean, did you ever give her any direction on anything to
do, on what to do with her hand outside of just, “If you take the time,
bring me in a document”?
A: I don't tell them what to do. I can tell them, you know, what their
options are at that point as noted in here. I couldn't tell her what to
do or what to use. If she, you know, chose to use her FMLA day or
chose to go to the ER or whatever, I can't tell them what to do. All I
can do is answer her question that she told me …. 6
Thus, the above evidence demonstrates that, as a matter of law, Ms. Blevins did not state
that she is unable to answer employees’ FMLA questions—as Plaintiff insinuates—and Ms.
Blevins did answer Plaintiff’s FMLA question when she told Plaintiff that the FMLA did not apply
to Plaintiff’s situation, as Plaintiff stated it, because “it was a different instance.” Therefore, there
5
6

Dep. of McCoy, at 5.
Dep. of Blevins, ECF No. 29-6, at 9 (emphasis added).

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is no evidence that Defendant failed to responsively answer Plaintiff’s FMLA question, and
Defendant’s motion for summary judgment as to Plaintiff’s FMLA interference claim must be
granted.
B. Count Two: FMLA Retaliation
Next, Defendant argues that it is entitled to summary judgment as to Plaintiff’s FMLA
retaliation claim because Plaintiff cannot satisfy two of the three elements of a retaliation claim,
and because Plaintiff cannot rebut Defendant’s lawful explanation for her termination. Reply Mem.
in Supp. of Def.’s Mot. for Summ. J., ECF No. 30, at 4–5, 8. The Court disagrees.
As explained in the previous section, the FMLA states that “[i]t shall be unlawful for any
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) (emphasis added). The FMLA regulations further
explain that the “prohibition against interference prohibits an employer from discriminating or
retaliating against an employee or prospective employee for having exercised or attempted to
exercise FMLA rights.” 29 CFR § 825.220(c) (emphasis added).
To establish a prima facia case of FMLA retaliation, a plaintiff must prove the following
three elements: “(1) she engaged in a 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 Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015). However, even if a plaintiff
establishes these three elements, “[i]f the defendant [then] 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.
1. Prima Facia Case
Defendant first argues that Plaintiff has not set forth any evidence to prove the first element

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of a retaliation claim—that she engaged in protected activity—because Plaintiff herself admits that
she “did not ask for her December 22 absence to be designated as an FMLA absence.” Reply Mem.
in Supp. of Def.’s Mot. for Summ. J., at 5. While this fact may be true, it is not dispositive of the
issue because Defendant interprets Plaintiff’s argument too narrowly. Plaintiff is not necessarily
claiming that she engaged in or attempted to engage in protected activity on December 22, but
rather because she indisputably engaged in FMLA leave in the past, specifically in October of
2016, while employed by Defendant. See Mem. in Supp. of Def.’s Mot. for Summ. J., at 2; Dep. of
McCoy, at 3. Thus, Plaintiff has satisfied the first element of proving FMLA retaliation.
Defendant next argues that Plaintiff cannot prove the third element of a retaliation claim—
that there was a causal link between her use of the FMLA and her termination. See Reply Mem. in
Supp. of Def.’s Mot. for Summ. J., at 6. The Court disagrees, as sufficient evidence exists for a jury
to find a causal link between the two events.
First, Plaintiff has presented evidence that her employer viewed her negatively as a result
of her leave. For example, when Plaintiff’s supervisor from 2013 to 2015—before Plaintiff
received intermittent FMLA leave to care for her father—was asked whether Plaintiff was a
dependable employee he answered, “[o]h, yes, yes.” Dep. of Serna, ECF No. 29-5, at 3, 6.
Conversely, Plaintiff’s supervisor from October of 2016—during the time Plaintiff was permitted
to take intermittent FMLA leave—stated that Plaintiff was not the most “dependable” employee
because “she did call in a lot, multiple times shall I say, multiple times.” Dep. of Powell, ECF No.
29-4, at 3, 8. Additionally, the timing of Plaintiff’s termination is suspicious. Plaintiff was fired
less than two months after she received intermittent FMLA leave and only seven days after she
allegedly called in to inquire about FMLA leave. See Compl., at ¶¶ 17–19; Dep. of Blevins, at 11.
Finally, there is evidence that Defendant is fabricating its reason for firing Plaintiff. Plaintiff

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testified that Defendant’s alleged reason for firing her—that she attempted to falsify records—is
erroneous. All of this evidence, in the aggregate, could lead a reasonable jury to conclude that
Plaintiff was viewed unfavorably by Defendant because of her use of the FMLA, and terminated
shortly thereafter as a result. Thus, Plaintiff has established a prima facia case of FMLA retaliation.
2. Pretext
Defendant next argues that even if Plaintiff can establish a prima facia case for FMLA
retaliation, it has a lawful explanation for her termination, and Plaintiff cannot demonstrate that
this explanation is pretextual. The Court disagrees, and holds that Plaintiff has met her burden of
demonstrating pretext.
As stated earlier, if a defendant advances a “lawful explanation” for a plaintiff’s firing, the
plaintiff must demonstrate that the defendant’s explanation is pretextual. When an employer’s
lawful explanation for terminating an employee is based upon an administrator’s statements, the
terminated employee can demonstrate pretext by proving that the administrator was dishonest. See
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (holding that plaintiff failed to
demonstrate pretext when an employer’s lawful explanation for firing plaintiff was based on the
plaintiff’s supervisor’s negative performance evaluations because the plaintiff “fail[ed], for
example, to supply evidence that [her supervisor] actually believed her performance was good.”)
(emphasis added).
Unlike the plaintiff in Hawkins, Plaintiff in this case has submitted evidence that an
administrator, whose statements Defendant relied on in terminating Plaintiff’s employment, was
not truthful. Ms. Blevins, Defendant’s Human Resource Manager, stated that Plaintiff asked her if
she could “get her paperwork and correct her paperwork for her so that she wouldn’t get in
trouble.” This version of events from Ms. Blevins is the reason why Defendant terminated Plaintiff,

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but Plaintiff disputes Ms. Blevins account entirely. Plaintiff claims that she only asked Ms. Blevins
whether an absence in her situation would be covered under the FMLA. Because the Court must
draw all reasonable inferences in favor of the nonmoving party, it can certainly be inferred—due
to the large difference between the two versions of the conversation—that Plaintiff is not arguing
Ms. Blevins’ merely misremembered what happened but was instead untruthful. Thus, because
Plaintiff’s testimony creates a reasonable dispute as to whether Ms. Blevins was dishonest when
she stated that Plaintiff attempted to falsify records, Plaintiff can demonstrate pretext.
Defendant argues that Plaintiff merely stating “her version of events” is not evidence of
pretext, and cites Laing v. Fed. Express Corp., 703 F.3d 713, 722 (4th Cir. 2013) in support. See
Reply Mem. in Supp. of Def.’s Mot. for Summ. J., at 9. The Court finds Laing inapplicable to this
case. In Laing, the Fourth Circuit held that a plaintiff did not establish pretext when she “did not
dispute” the validity of the records that were relied on in terminating her and did not dispute that
the records were “‘in fact unacceptable under company policy.’” Id. at 717, 722 (emphasis added).
Rather, the plaintiff in Laing merely “‘provided explanations’” for why the records appeared to
violate company policy. Id. at 722 (emphasis added). Consequently, Laing would only be
applicable to this case if Plaintiff admitted that Ms. Blevins’ version of events was true, but, for
example, tried to explain to this Court that she was merely joking, and did not actually want Ms.
Blevins to falsify her records. As explained above, Plaintiff is clearly not admitting to Ms. Blevins’
version of events but is instead disputing the validity of the evidence used to terminate her, unlike
the plaintiff in Laing. Therefore, Plaintiff has demonstrated pretext, and Defendant’s motion for
summary judgment as to Plaintiff’s retaliation claim is denied.

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C. Count Three: WVHRA Violation
In her complaint, Plaintiff claims Defendant violated the WVHRA because “Defendant’s
termination of Plaintiff’s employment was based upon, in whole or in part, on (sic) Plaintiff’s
perceived disability, and/or being regarded as disabled ….” Compl., at ¶ 50. However, as
Defendant accurately points out, Plaintiff has produced no evidence that there was any connection
between her protected status and her termination. As a result, Plaintiff does not even address her
WVHRA claim in her response. See Response in Opp. to Def.’s Mot. for Summ. J. Because Plaintiff
has not set forth any evidence to demonstrate that there was any connection between her protected
status and her termination, 7 the Court must grant Defendant’s motion for summary judgment as
to count three.
D. Count Four: IIED
Lastly, Defendant argues that Plaintiff’s IIED claim cannot survive summary judgment
because its conduct in terminating Plaintiff’s employment does not meet the high standard required
for an IIED claim. Because the undisputed facts demonstrate that Plaintiff’s termination was not
unusual, let alone “outrageous,” the Court agrees with Defendant.
The Supreme Court of West Virginia has held that for a plaintiff to prevail on an IIED
claim, four elements must be established:
(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, or
acted recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (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.

See Conaway v. Eastern Associated Coal Corp., 358 S.E.2d 423, 427 (W. Va. 1986) (holding that “[t]o
successfully defend against a motion for summary judgment, the plaintiff must make some showing of fact which
would support a prima facie case for his claim.”).
7

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Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W. Va. 1998).
Regarding the first element, “[t]he defendant's conduct must be more than unreasonable,
unkind or unfair; it must truly offend community notions of acceptable conduct.” Id. (internal
quotations omitted). Thus, “plaintiffs must necessarily be expected and required to be hardened to
… occasional acts that are definitely inconsiderate and unkind.” Id. at 425–26 (internal quotations
omitted). However, [t]he defendant's knowledge that a plaintiff is particularly susceptible to
emotional distress somewhat alters the above standards for determining whether conduct is
‘extreme and outrageous.’” Id. at 426 (emphasis added). Additionally, “[t]he employer-employee
relationship should entitle an employee to a greater degree of protection from insult and outrage
than if he were a stranger to defendants.” Id. at 427 (internal quotations omitted).
Importantly, under West Virginia law, “the actual act of terminating an employee for an
invidious cause cannot be grounds for “outrageous” conduct ….” Councell v. Homer Laughlin
China Co., 823 F. Supp. 2d 370, 384 (N.D.W. Va. 2011). Thus, in a case such as this where the
plaintiff is also arguing that she was wrongfully terminated, the key inquiry is “the outrageous
manner by which the employer effected the discharge,” and the facts relating to the “employer’s
motivation or reason for the discharge” are not considered. Dzinglski v. Weirton Steel Corp., 445
S.E.2d 219, 226 (W. Va. 1994).
Finally, in determining whether an IIED claim can survive a motion for summary
judgment, “[t]he role of … the trial court … is limited to determining whether the defendant's
conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If
reasonable persons could differ on the issue, the question is one for the jury.” Id. (internal
quotations omitted).
Plaintiff argues that a “reasonable jury may find that [the following] conduct rises to the

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level of outrageousness to sustain” an IIED claim: without explanation Defendant required
Plaintiff to come to the workplace days after Christmas and accused her of abusing the FMLA and
falsifying documents, 8 even though Defendant knew Plaintiff was on approved medical leave
carrying for her dying father. Response in Opp. to Def.’s Mot. for Summ. J., at 16. The Court holds,
as a matter of law, that such conduct cannot be considered “extreme and outrageous” because the
conduct is typical of the average termination. For example, while Defendant “accused” Plaintiff
of abusing FMLA and falsifying documents, surely stating to an employee the reason for her firing
cannot be considered “extreme and outrageous.” Additionally, while the Court is sympathetic to
the fact that Plaintiff was terminated shortly after Christmas and while she was caring for her ill
father, these circumstances do not result from Defendant’s conduct. To hold otherwise would
inappropriately allow for an IIED claim when the outrageous conduct merely stems from the
discharge itself. Finally, while it may have possibly been “unkind” to not give Plaintiff an
explanation before requiring her to come into work, unkind actions as a matter of law are not
outrageous.
The Court acknowledges that Defendant was an employer of Plaintiff and had knowledge
that Plaintiff may have been “particularly susceptible to emotional distress,” but the additional
protection Plaintiff receives because of these facts cannot result in a finding that Defendant’s
conduct was extreme or outrageous due to the rather routine facts involved in this termination.
Therefore, because Plaintiff has not set forth sufficient facts to demonstrate that Defendant may
have been “outrageous” in effecting her termination, the Court grants summary judgment as to

8
While Plaintiff emphasizes that Defendant “falsely” accused her of abusing the FMLA and falsifying
documents, the issue of whether the accusation is true or false is not relevant to this IIED analysis, but rather to an
analysis of whether the discharge was wrongful. See Dzinglski, 445 S.E.2d at 226 (holding that because a “wrongful
discharge action depends solely on the validity of the employer's … reason for the discharge” then “any other conduct
which surrounds the dismissal must be weighed to determine whether the employer's manner of effecting the discharge
was outrageous.”) (emphasis added).

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Plaintiff’s IIED claim.
IV. CONCLUSION
Based upon the analysis provided above, the Court GRANTS Defendant’s Motion for
Summary Judgment (ECF No. 25) as to counts one, three, and four of the complaint, and DENIES
Defendant’s Motion for Summary Judgment as to count two of the complaint.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

February 19, 2019

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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