United States District Court, S.D. West Virginia, Huntington Division
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 ...