United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the defendants' Motion for Summary
Judgment [ECF No. 30] and the plaintiff's Motion for
Summary Judgment on Liability for his Claim of FMLA
Interference [ECF No. 32]. Both parties filed Responses [ECF
Nos. 35, 36] and Replies [ECF Nos. 37, 38]. The Motions are
now ripe for decision. For the reasons stated below, the
defendants' Motion [ECF No. 30] is GRANTED and the
plaintiff's Motion [ECF No. 32] is DENIED.
LLC employed the plaintiff from June 2013 until it discharged
him in July 2014. See Notice Removal Ex. A, at
¶¶ 5, 12 [ECF No. 1-1]. On June 19, 2013, the
plaintiff underwent a pre-employment physical wherein the
physician determined that he was capable of working with
“[n]o restrictions.” See Defs.' Mot.
Summ. J. Ex. C [ECF No. 30-4]. Nine months later, on March
13, 2014, the plaintiff went to his family doctor because his
urine contained blood. See Defs.' Mot. Summ. J.
Ex. D [ECF No. 30-5]. The doctor diagnosed the plaintiff with
kidney stones and suggested that the plaintiff treat the
condition by drinking fluids. Pl.'s Mot. Summ. J. Ex. 2,
at 53:15-54:6 [ECF No. 32-2] (“Pl.'s Dep.”).
The plaintiff stated that he told co-workers and Mr. Hively,
his supervisor, about the discomfort in his kidneys and
urinating blood, but that it was “nothing he was
seriously concerned about.” Id. at
62:23-63:16. The plaintiff, however, never requested time off
for his kidney issues and continued to work regularly.
Id. at 63:19-64:3.
months after visiting his family doctor, the plaintiff was
scheduled to work the 5:00 p.m. to 5:00 a.m. shift on July
19. Id. at 70:14-19. The plaintiff wanted that night
off so he could go to a stock car race at the Ona Speedway;
however, the plaintiff had no leave time available and could
not trade shifts with another employee. Id. at
69:3-5, 73:23-74:5. Prior to his July 19 shift, the plaintiff
asked Mr. Hively for time off, and Mr. Hively denied the
request. Id. at 73:16-20. On July 19, the plaintiff
called work, said that he was not feeling well without
referencing his urinary issues, and failed to show up for his
assigned shift. Id. at 71:3-14; Pl.'s Mot. Summ.
J. Ex. 5, at 26:4-7 [ECF No. 32-5]. Despite the
plaintiff's assertion that he was not feeling well, he
went to Ona Speedway that evening in lieu of going to work.
Pl.'s Dep. at 71:15- 19. Indeed, the record indicates
that a stock car registered to the plaintiff placed fourth
during a race at the Ona Speedway on July 19. Defs.' Mot
Summ. J. Ex. E [ECF No. 30-6].
days after failing to show up for the July 19 shift, the
plaintiff underwent a physical exam as part of his
employment. Pl.'s Dep. at 54:11-16; Defs.' Mot. Summ.
J. Ex. F [ECF No. 30-7]. During the physical examination, the
plaintiff's urine again contained blood. Pl.'s Dep.
at 54:18-20. Although the nurse conducting the physical
recommended that the plaintiff consult his family physician
and noted that his bloodwork was abnormal, she determined
that the plaintiff was not an increased risk due to exposure
to hazardous substances; that the plaintiff was not limited
in his exposure to hazardous substances or the use of
protective devices; and that the plaintiff had no medical
conditions requiring further examination or treatment.
Id. at 54:11-23; Defs.' Mot. Summ. J. Ex. G [ECF
No. 30-8]; Pl.'s Mot. Summ. J. Ex. 3 [ECF No. 32-3].
that the plaintiff failed to show up for work on July 19 and
concerned that the plaintiff feigned illness, the defendants
drafted a disciplinary memorandum on July 25. See
Defs.' Mot. Summ. J. Ex. H [ECF No. 30-9]. The memorandum
indicated that defendants intended to suspend the plaintiff
for three days. Id. Mr. Hively planned to give the
plaintiff the disciplinary memorandum at the end of the
plaintiff's shift on July 27. See Defs.'
Mot. Summ. J. Ex. I [ECF No. 30-10]. However, on July 27
before the end of the plaintiff's shift, Mr. Hively found
the plaintiff off Covestro LLC's premises sleeping in a
nearby building owned by another company. Defs.' Mot.
Summ. J. Ex. J [ECF No. 30-11]. Mr. Hively shook the
plaintiff awake and took the plaintiff to the control room.
Id. Once there, Mr. Hively called his supervisor.
Id. The supervisor told Mr. Hively to immediately
give the plaintiff the disciplinary memorandum and send him
home. Id. Mr. Hively did so and told the plaintiff
that the sleeping incident would be handled separately.
the plaintiff's suspension, on July 29, he went to his
family doctor complaining of bladder pain. Defs.' Mot.
Summ. J. Ex. K [ECF No. 30-12]. Based on the plaintiff's
symptoms, the doctor ordered a CT scan, which the plaintiff
had performed on July 30. Defs.' Mot. Summ. J. Ex. L [ECF
31, Covestro LLC terminated the plaintiff allegedly based on
the sleeping incident. Notice Removal Ex. A, at ¶ 12. On
August 11, the plaintiff saw a urologist at the behest of his
family doctor. Defs.' Mot. Summ. J. Ex. O [ECF No.
30-16]. Two days later, the urologist diagnosed the plaintiff
with bladder cancer. Defs.' Mot. Summ. J. Ex. P [ECF No.
30-17]. The plaintiff subsequently brought a lawsuit alleging
violations of the West Virginia Human Rights Act
(“WVHRA”) and the Family and Medical Leave Act
obtain summary judgment, the moving party must show that
there is no genuine dispute 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. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
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. Likewise, conclusory
allegations or unsupported speculation, without more, are
insufficient to preclude the granting of a summary judgment
motion. See Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105
F.3d 188, 191 (4th Cir. 1997).
Fourth Circuit has stated the principles a district court
must apply in predicting uncertain state law:
As a court sitting in diversity, we have an obligation to
interpret the law in accordance with the [decisions of the
state court of last resort], or where the law is unclear, as
it appears that [such court] would rule. See Liberty Mut.
Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th
Cir.1992) (holding that if state law is unclear federal
courts must predict the decision of the state's highest
court); Brendle v. General Tire & Rubber Co.,
505 F.2d 243, 245 (4th Cir.1974). To forecast a decision of
the state's highest court we can consider, inter
alia: canons of construction, restatements of the law,
treatises, recent pronouncements of general rules or policies
by the state's highest court, well considered dicta, and
the state's trial court decisions. See Liberty
Mut., 957 F.2d at 1156.
Wells v. Liddy, 186 F.3d 505, 527-528 (4th Cir.
1999). The WVHRA claim is before me on supplemental
jurisdiction; accordingly, I will apply the law of West
Virginia to this case or predict, in the event of
uncertainty, how the Supreme Court of Appeals of West
Virginia would rule.
parties' Motions present two distinct issues. First, the
defendants argue that they are entitled to summary judgment
on the plaintiff's WVHRA disability discrimination claim.
Second, both parties argue that they are entitled to summary
judgment on the plaintiff's FMLA interference claim. The
court will address each of these issues in turn.
defendants argue that they are entitled to summary judgment
on the WVHRA disability discrimination claim because the
plaintiff failed to establish that he was a member of a
protected class and there is no nexus between his disability
and the adverse employment action. Defs.' Mot Summ. J.
7-12. The plaintiff counters that argument by pointing to
evidence that he contends “amply support[s] a
reasonable inference that the Defendants resented Mr.
Powers'[s] having missed work for his medical condition,
and that they retaliated by giving a final warning and firing
him.” Pl.'s Resp. [ECF No. 36]. For the following
reasons, I determine that the plaintiff has presented
evidence sufficient to support a prima facie case but has
failed to rebut the defendants' legitimate,
nondiscriminatory reason for termination.
disability discrimination cases involving disparate
treatment, employees must ...