Wintz v. Cabell County Commission

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, CHIEF JUDGE

         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. 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.

         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 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 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.

         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 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 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 ...