United States District Court, N.D. West Virginia
OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANT MARION COUNTY COAL COMPANY'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 75) AND GRANTING DEFENDANT MURRAY AMERICAN
ENERGY, INC.'S MOTION FOR SUMMARY JUDGMENT (DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
Alyssa Moate Larry (“Larry”) was terminated from
her employment at defendant The Marion County Coal Company
(“MCC”), a subsidiary of defendant Murray
American Energy, Inc. (“MAEI), after returning from
maternity leave under the Family and Medical Leave Act
(“FMLA”). Larry alleges that, by selecting her
for layoff, MCC denied her rights under the FMLA, and
discriminated and retaliated against her on the basis of her
sex and her pregnancy in violation of the West Virginia Human
Rights Act and the Pregnancy Workers' Fairness Act. She
further alleges that MAEI aided and abetted MCC in engaging
in unlawful discrimination and retaliation.
before the Court are the defendants' motions for summary
judgment. For the reasons that follow, the Court
GRANTS in part and DENIES in
part MCC's motion (Dkt. No. 75), and
GRANTS MAEI's motion (Dkt. No. 77).
Larry's Employment History with MCC
in September 2012, Larry was employed by the Consolidation
Coal Company (“CCC”) as a Mine Clerk at its
Loveridge Mine located in Marion and Monongalia Counties,
West Virginia (Dkt. No. 75-1 at 4-5). Larry was then one of
two Mine Clerks at the Loveridge Mine, where, along with
Human Resource Supervisor Pamela Layton
(“Layton”) and Human Resource Coordinator Ilya
Shlyahovsky (“Shlyahovsky”), she was one of the
four employees who formed the entirety of the Human Resources
Department at the mine. Id. at 6.
December 15, 2013, following MAEI's purchase of the
Loveridge Mine, MCC assumed operation of the mine and renamed
it the Marion County Mine. Id. at 7-8. Larry,
Layton, and the other Human Resources staff members were all
hired by MCC and continued to work in their same positions.
Id. at 8.
February 2014, Shlyahovsky was promoted to the Human Resource
Supervisor position at another MAEI mine, and left his Human
Resource Coordinator position at the Marion County Mine.
Id. at 11. Layton encouraged Larry to apply for the
position and supported her candidacy with Paul Piccolini
(“Piccolini”), the Vice President of Human
Resources and Employee Relations of Murray Energy
Corporation, a related entity that provides certain human
resource related services to MCC and other MAEI companies.
Id. at 12-13; Dkt. No. 75-5 at 1.
Piccolini's approval, Larry was formally promoted to
Human Resource Coordinator at the Marion County Mine on March
31, 2014 (Dkt. No. 75-8 at 1). However, she continued to
perform her prior Mine Clerk duties, together with her new
responsibilities, until a new Mine Clerk was hired in July
2014 (Dkt. No. 75-2 at 36; Dkt. No. 75-9 at 1).
October 2014, Piccolini authorized the creation of a second
Human Resource Coordinator position at MCC, and also at each
of four other mines owned by MAEI (Dkt. No. 75-1 at 16; Dkt.
No. 76-6 at 11; Dkt. No. 75-10 at 1). On December 15, 2014,
MCC selected Eric Zuchowski (“Zuchowski”) for the
second Human Resource Coordinator position at the Marion
County Mine (Dkt. No. 75-1 at 17; Dkt. No. 75-9 at 1). Like
Larry, Zuchowski was promoted from his prior position as a
Mine Clerk, and continued to perform certain of his prior
Mine Clerk duties, as well as his new responsibilities as
Human Resource Coordinator, until a replacement Mine Clerk
could be hired and trained. Zuchowski formally assumed the
second Coordinator position on April 27, 2015 (Dkt. No.
Larry's Pregnancy-Related FMLA Leave and Accommodation
February 6, 2015, Larry gave birth to a son (Dkt. No. 75-1 at
20). She sought and received FMLA-covered leave from February
6 until her return to work on March 23, 2015. Id. at
returning to work, Larry was required to express breast milk
using a mechanical pump three to four times each day, and
suggested to Layton that she be permitted to use a file
closet attached to their shared office for that purpose.
Id. at 22-23. Larry alleges that Layton responded
“that wouldn't be a good idea in case someone was
in the office.” Id. at 23. It was Larry's
sense that Layton believed that it would be inconvenient for
Larry to use the office closet, where salaried employee files
were kept. Id. As a result, Larry began taking her
lactation breaks in the women's restroom. Id. at
MCC's Reductions in Force and Larry's Layoff
2015, MCC decided to reduce production at the Marion County
Mine from seven to five days per week due to poor coal market
conditions (Dkt. No. 75-2 at 5). A corresponding reduction in
force resulted in layoffs of approximately 180 hourly
workers, as well as 34 salaried employees (Dkt. No. 75-9 at
2). Within the Human Resources Department, Layton was
required to reduce her four-person staff by one member (Dkt.
No. 75-2 at 6). Layton decided to eliminate one of the two
Human Resource Coordinator positions, and ultimately selected
Larry as the Coordinator to be laid off. Id. at 13,
17. Larry was notified of her layoff on May 28, 2015 (Dkt.
No. 75-1 at 33; Dkt. No. 75-16).
time of Larry's layoff from MCC, Shlyahovsky, her
predecessor, was employed as the Human Resource Supervisor at
an MAEI sister mine, The Monongalia County Coal Company (Dkt.
No. 75-2 at 27). In July 2015, approximately two months after
Larry's layoff, Shlyahovsky was transferred back to the
Marion County Mine and demoted to the position of Human
Resource Coordinator there (Dkt. No. 75-2 at 26-27; Dkt. No.
76-5 at 9-10). Shlyahovsky remained in that position for
approximately three months, when he then was reassigned
elsewhere (Dkt. No. 75-18 at 2). Shlyahovsky ultimately was
laid off in a December 2015 reduction in force (Dkt. No. 75-6
at 10; Dkt. No. 75-19 at 1).
October 20, 2015, Larry sued MCC in the Circuit Court of
Monongalia County, West Virginia (Dkt. No. 1-2), asserting
claims of (1) sex discrimination in violation of the West
Virginia Human Rights Act, W.Va. Code §§ 5-11-1,
et seq. (“HRA”); (2) pregnancy
discrimination in violation of the West Virginia Pregnant
Workers' Fairness Act, W.Va. Code §§ 5-11B-1,
et seq. (“PWFA”); (3) retaliation in
violation of the HRA and PWFA; and (4) interference with her
rights and retaliation in violation of the Family and Medical
Leave Act, 29 U.S.C. §§ 2601, et seq.
(“FMLA”). Id. at 4-6. She also sued MAEI
for aiding and abetting MCC in engaging in unlawful sex
discrimination, pregnancy discrimination, and retaliation in
violation of the HRA and PWFA. Id. at 4-5. On
November 10, 2015, the defendants removed the case to this
Court (Dkt. No. 1).
January 9, 2017, the Court stayed the case pending receipt of
answers to two questions certified to the Supreme Court of
Appeals of West Virginia, which bore directly on the
potential damages available in Larry's case (Dkt. No.
94). See Martinez v. Asplundh Tree Expert Co., 803
S.E.2d 582 ( W.Va. 2017). After receiving the answers to the
certified questions, the Court conducted a conference with
the parties on July 26, 2017, to discuss the status of the
case (Dkt. No. 97). After the Supreme Court of Appeals of
West Virginia entered the mandate in Martinez, Larry
filed a motion to lift the stay in this case, which the Court
granted on November 1, 2017. Now pending are the
defendants' motions for summary judgment, which are fully
briefed and ripe for disposition.
STANDARD OF REVIEW
judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, 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(c). When ruling on a motion for
summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving
party. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must
avoid weighing the evidence or determining its truth and
limit its inquiry solely to a determination of whether
genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
moving party bears the initial burden of informing the Court
of the basis for the motion and of establishing the
nonexistence of genuine issues of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has made the necessary showing, the non-moving party
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 256 (internal quotation marks and citation omitted). The
“mere existence of a scintilla of evidence”
favoring the non-moving party will not prevent the entry of
summary judgment; the evidence must be such that a rational
trier of fact could reasonably find for the nonmoving party.
Id. at 248-52.
State Law Discrimination Claims Against MCC
Count One of the complaint, Larry contends that MCC's
decision to select her for layoff was substantially motivated
by her sex and her pregnancy, which constitute violations of
the West Virginia Human Rights Act and the Pregnant
Workers' Fairness Act (Dkt. No. 1-1 at 4).
Sex and Pregnancy Discrimination Under the HRA and
West Virginia Human Rights Act (“HRA”), W.Va.
Code §§ 5-11-1, et seq., prohibits
employers from discriminating against any individual with
respect to “compensation, hire, tenure, terms,
conditions or privileges of employment.” W.Va. Code
§ 5-11-9(c). Discrimination “means to exclude
from, or fail or refuse to extend to, a person equal
opportunities because of . . . sex . . . .” W.Va. Code
Supreme Court of Appeals of West Virginia has long recognized
that discrimination based upon pregnancy constitutes sex
discrimination under the HRA. See, e.g., Syl. pt. 1,
Montgomery Gen. Hosp. v. W.Va. Human Rights
Comm'n, 346 S.E.2d 557, 559 ( W.Va.
1986)(“Discrimination based upon pregnancy constitutes
illegal sex discrimination under the West Virginia Human
Rights Act, W.Va. Code 5-11-9(a).”)(quoting Syl.
pt. 2, Frank's Shoe Store v. W.Va. Human Rights
Comm'n, 365 S.E.2d 251, 258 ( W.Va. 1986)). In 2014,
the West Virginia Legislature codified the protections
afforded to pregnant employees with the adoption of the
Pregnant Workers' Fairness Act (“PWFA”),
W.Va. Code §§ 5-11B-1, et seq., which
explicitly requires employers to reasonably accommodate their
employees' “known limitations related to pregnancy,
childbirth, or related medical conditions, ” including
lactation. W.Va. Code § 5-11B-2(1); W.Va. C.S.R. §
claims brought under the HRA are governed by the
burden-shifting framework of Title VII of the Civil Rights
Act of 1964, as set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). See
Shepherdstown Volunteer Fire Dep't v. Stateex
rel. State of W.Va. Human Rights Comm'n, 309 S.E.2d
342, 352 ( W.Va. 1983)(reaffirming use of the McDonnell
Douglas standard in West Virginia). The PWFA provides
that the procedures and ...