United States District Court, S.D. West Virginia, Charleston Division
VICKI L. FLATT Plaintiff,
LOWE'S HOME CENTERS, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the defendants' Motion for Summary
Judgment [ECF No. 25]. The deadline for the filing of a
response has passed, and the plaintiff has not filed a
response. For the reasons that follow, the Motion is
Lowe's Home Centers, LLC ("Lowe's") hired
the plaintiff as a customer service associate in 2008 at its
Beaufort, South Carolina store. In 2010, the plaintiff was
promoted to department manager. In November 2014, the
plaintiff requested a transfer to the Nitro, West Virginia
store, which Lowe's approved. Defendant Michael Dorsey
worked as the manager at the Nitro store.
2016, the plaintiff began using intermittent leave under the
Family and Medical Leave Act ("FMLA") after she was
diagnosed with lung cancer. After her twelve weeks of FMLA
leave expired, she began using continuous leave pursuant to
the Americans with Disabilities Act.
January 2017, Lowe's eliminated all department manager
positions nationwide. Lowe's replaced the department
manager positions with a reduced number of service and
support manager positions. Former department managers were
given the option to apply for these new positions. Moreover,
former department managers who applied for these new
positions but were not selected were given an opportunity to
work for Lowe's for an additional year as a customer
service associate with no change in pay while they applied
for other jobs within Lowe's.
plaintiff in this matter applied for one of the new positions
but was not selected. Because the plaintiff was on leave at
the time of the restructure, she was given an additional time
to apply for positions after returning to work to ensure that
she had a full year to secure another position. However, the
plaintiff did not secure another position at Lowe's
within that time frame and was therefore terminated.
plaintiff filed the instant Complaint [ECF No. l-l] in the
Circuit Court of Kanawha County on March 12, 2018. The case
was removed to this court on April 13, 2018. The Complaint
contains five counts. Counts One, Two, and Three assert
claims under the West Virginia Human Rights Act
("WVHRA"), alleging that the defendants failed to
rehire the plaintiff because of her age, gender, and
disability. Count Four alleges that the defendants terminated
the plaintiffs employment in retaliation for her use of FMLA
benefits, and Count Five alleges that the defendants
committed the tort of outrage. On March 28, 2019, the
defendants moved for summary judgment, requesting that the
court dismiss this action with prejudice.
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). "Facts are 'material' when
they might affect the outcome of the case." Lester
v. Gilbert, 85 F.Supp.3d 851, 857 (S.D. W.Va. 2015)
(quoting News & Observer Publ'g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010)). "A genuine issue of material fact exists if
... a reasonable fact-finder could return a verdict for the
non-movant." Runyon v. Hannah, No. 2:12-1394,
2013 WL 2151235, at *2 (S.D. W.Va. May 16, 2013) (citations
omitted); see Williams v. Griffin, 952 F.2d 820, 824
(4th Cir. 1991) ("Disposition by summary judgment is
appropriate . . . where the record as a whole could not lead
a rational trier of fact to find for the non-movant.").
The moving party bears the burden of showing that "there
is an absence of evidence to support the nonmoving
party's case." Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986).
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). 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., 477 U.S. at 322-23. 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.
allegations or unsupported speculation, without more, are
insufficient to preclude the granting of summary judgment.
See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.