United States District Court, S.D. West Virginia, Huntington Division
December 15, 2016
DONNA L. WINTZ, Plaintiff,
CABELL COUNTY COMMISSION, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
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. Therefore, without further discussion, the
Court GRANTS summary judgment in favor of Defendant as to
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. 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. 39-9, 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.
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 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
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 time-share.” 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.
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 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.
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.
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
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.
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,
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, 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.
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)).
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.” 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
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 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. 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.
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- 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).
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.
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.
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.
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
(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.
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 serious safety concerns.
Therefore, Defendant was not required to accommodate her for
alcohol dependence 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.
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.
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 DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.
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.
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
In fact, Plaintiff denied her drinking
caused her any problems at work.