Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fugate v. Frontier West Virginia, Inc.

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

April 10, 2018

KERRY FUGATE, Plaintiff,



         Pending before the Court is Defendant Frontier of West Virginia, Inc.'s (“Frontier”) motion for summary judgment.[1] (ECF No. 41.) For the reasons discussed more fully below, the Court GRANTS Frontier's motion for summary judgment.

         I. BACKGROUND

         Plaintiff, Kerry Fugate (“Fugate”), began working for Frontier's predecessor company in 1998.[2] (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 (Fugate Dep.)).)

         Frontier 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.)

         Beginning 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.).)

         On 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.[3] (See ECF No. 43 at 4.)

         Fugate 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).

         On 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.)

         On 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.


         Rule 56 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).

         The 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.

         “[A] 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.