United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
before the Court is Defendant Frontier of West Virginia,
Inc.'s (“Frontier”) motion for summary
judgment. (ECF No. 41.) For the reasons discussed
more fully below, the Court GRANTS
Frontier's motion for summary judgment.
Kerry Fugate (“Fugate”), began working for
Frontier's predecessor company in 1998. (ECF No. 42 at
2.) Beginning in 2008, Fugate began to suffer serious health
problems resulting in, on at least one occasion, Fugate
requesting and receiving leave under the Family Medical Leave
Act of 1993 (“FMLA”). (ECF No. 43 at 1.) Fugate
also had several unexcused absences during this time period
that resulted in Frontier disciplining Fugate on multiple
occasions. (ECF No. 42 at 2 (citing ECF No. 41-1 at 96-97
had a step system for disciplining its employees for
absences. (ECF No. 43 at 1.) Each time an employee had two
unexcused absences, that employee would receive a
“Step”, an adverse employment action that would
be removed from the employee's record after six months if
the employee did not have additional unexcused absences
during that period. (Id.) An employee would be
eligible for termination after reaching Step 5. (ECF No. 43
at 1-2.) However, employees would not necessarily move up the
Steps in order. (ECF No. 42 at 6 n.3.) For example, if an
employee was on Step 1 and had an unexcused absence exceeding
three days within six months of the previous incident that
placed the employee on Step 1, that employee would move
directly to a Step 3. (Id.)
in 2011, Fugate had several unexcused absences that caused
him to oscillate between Step 3 and Step 4. (See ECF
No. 42 at 8-9.) Fugate had requested FMLA prior to taking
some of these absences, but his requests were denied.
(Id. at 9.) On January 2, 2014, Fugate was placed on
Step 4 for being absent on December 2, 3, 4, and 5.
(See ECF No. 41-15 (Employee Contact Mem.).) Fugate
had requested FMLA leave for December 2, 3, and 4, but his
request was denied. (See ECF No. 42 at 10.) Thus,
his absence during this time period was classified as
unexcused. Fugate then oscillated between Step 3 and Step 4
due to tardiness. (Id. at 9.) On December 3, 2014,
Frontier placed Fugate on Step 4 for tardiness and informed
Fugate that if he had another unexcused absence he could be
advanced to Step 5 and thus become eligible for termination.
(See ECF No. 41-17 (Employee Contact Mem.).)
January 2, 2015, Fugate left work early to tend to his sick
daughter. (ECF No. 42 at 2.) He did not inform a supervisor
or seek FMLA leave for this absence. (See id.) This
unexcused absence resulted in him being raised to a Step 5.
(Id. at 13.) As a result, Frontier terminated
Fugate's employment on January 14, 2015, citing as the
cause Fugate's excessive absences after having been
warned that further absences would result in disciplinary
action. (Id.) Fugate, however, argues that he did
not know he could not use an “exempt day” for
this absence under a plan his union created. (See ECF
No. 43 at 4.)
filed the present action against Frontier on January 12,
2017, invoking the Court's federal question jurisdiction
under 28 U.S.C. § 1331. Fugate subsequently filed an
Amended Complaint on March 16, 2017. (ECF No. 17.) The
Amended Complaint alleges the following six counts:
retaliatory discharge in contravention of a substantial
public policy of the State of West Virginia (count one);
interference with FMLA rights and FMLA retaliation (counts
two and three); disability discrimination under the West
Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq.
(count four); negligent infliction of emotional distress
(“NIED”) (count five); and outrage (count six).
March 24, 2017, Frontier moved this court to dismiss counts
one, four, five, and six of the Amended Complaint. (ECF No.
22.) By memorandum opinion and order issued on July 19, 2017,
the Court granted Frontier's partial motion to dismiss
and dismissed counts one, four, five, and six of the Amended
Complaint. (See ECF No. 31.) The case proceeded on
Fugate's remaining FMLA interference and retaliation
claims. (ECF No. 42 at 2.)
December 12, 2017, Frontier filed the present motion for
summary judgment. (ECF No. 41.) Fugate filed a timely
response, (ECF No. 43), and Frontier filed a timely reply.
(ECF No. 44.) As such, Frontier's motion for summary
judgment is fully briefed and ripe for adjudication.
of the Federal Rules of Civil Procedure governs motions for
summary judgment. That rule provides, in relevant part, that
summary judgment should be granted if “there is no
genuine issue as to any material fact.” Summary
judgment is inappropriate, however, if there exist factual
issues that reasonably may be resolved in favor of either
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). “Facts are ‘material' when
they might affect the outcome of the case, and a
‘genuine issue' exists when the evidence would
allow a reasonable jury to return a verdict for the nonmoving
party.” News & Observer Publ. Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). When construing such factual issues, the Court
must view the evidence “in the light most favorable to
the [party opposing summary judgment].” Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970).
moving party may meet its burden of showing that no genuine
issue of fact exists by use of “depositions, answers to
interrogatories, answers to requests for admission, and
various documents submitted under request for
production.” Barwick v. Celotex Corp., 736
F.2d 946, 958 (4th Cir. 1984). Once the moving party has met
its burden, the burden shifts to the nonmoving party to
“make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). If a party fails to make a sufficient
showing on one element of that party's case, the failure
of proof “necessarily renders all other facts
immaterial.” Id. at 323.
party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Liberty
Lobby, 477 U.S. at 256. “The mere existence of a
scintilla of evidence” in support of the nonmoving
party is not enough to withstand summary ...