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Price v. Region 4 Planning and Development Council

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

April 25, 2019

TERRI J. PRICE, Plaintiff,


          JOHN T. COPENHAVER, JR. Senior United States District Judge.

         Pending are cross motions for summary judgment filed by the parties on May 5, 2017. Also pending is the plaintiff's Supplemental Motion for Summary Judgment, filed December 5, 2018, for which plaintiff's motion to leave was not filed until January 2, 2019; and to all of which the defendants have responded, and which will be addressed in a companion order.

         I. Background

         The defendant, Region 4 Planning and Development Council (“Region 4”), is a quasi-governmental agency that coordinates planning and economic development for the counties of Fayette, Greenbrier, Nicholas, Pocahontas, and Webster. On December 10, 2001, defendant hired the plaintiff, Terri Price (“Price”), as Fiscal Manager at a salary of $35, 000. Defs.' Mot. Summ. J., Ex. A. On July 1, 2006, Price was promoted from Fiscal Manager to Fiscal Manager/Assistant Executive Director. Defs.' Mot. Summ. J., Ex. B. At the time of her discharge on January 30, 2015, Price's salary had increased to more than $85, 000. Pl.'s Mot. Summ. J. 1. She was the second highest paid employee at Region 4. Defs.' Mot. Summ. J. 1.

         As Fiscal Manager/Assistant Executive Director for Region 4, the plaintiff was responsible for staff leadership, personnel administration, budget preparation, collaboration with the Executive Director, establishing staff priorities and deadlines, accounts payable, regulatory compliance, knowledge of policy and procedure, administration of project-related duties and tasks, management of personnel operations, auditor collaboration, overseeing financial requirements, and leadership. Defs.' Mot. Summ. J., Ex. F. Price's deposition confirms that she administered the payroll, handled employee benefits relating to health, pension and insurance, kept financial records for the agency, and administered Region 4's budget. Defs.' Reply 3, Ex. F at 283-84.

         Price claims she was subjected to sexual comments made by former Executive Director of Region 4, W.D. Smith, during her years of employment with the agency. From 2012 to 2014, Price made over 150 secret recordings of conversations that took place in her office. Those recordings reveal that on April 19, 2012, Smith notified Price of a rape that may have occurred in the office and recounted a joke he made to an individual while conversing about the topic, in which he laughingly told that person: “I thought I was the only listed sex offender.” Pl.'s Mot. Summ. J., Ex 1. During a private meeting four days later on April 23, 2012, Smith told Price that he was “sitting here looking at you, pretending like you don't have any clothes on, how's that for sexual harassment?” Id. Price responded: “Oh, God.” Id. Then Smith complimented Price on her “beautiful eyes.” Id. She mumbled “thank you” and changed the subject. Id.

         The recordings further evidence that on June 25, 2012, Smith used the phrase that individuals have a “hard on” for their home town because “their town is just as important to them, more important.” Id. On June 26, 2012, during a conversation between Price, Smith, and another male employee, Smith jokingly stated: “He's [male employee] got . . . [female employee from Region 1] in a hotel right now” and that this was her “big fling before she leaves Region 1.” Id. Price responded: “He's just nasty this morning, ” and Smith responded: “I am, I'm a dirty old man this morning, worse than normal.” Id. During the same conversation, Smith told a “joke about a man's penis.” Id. The three individuals, including Price, laughed at the joke. Id. Lastly, on August 1, 2013, Smith told Price that “all women are” “crazy bitches.” Id. These incidents, all attributable to Smith, seem to comprise the sexual comments to which Price was subjected at Region 4.

         While working for the defendant, Price never complained of Smith's conduct to the Executive Committee or any other employee at Region 4 until nearly a year after Smith was replaced when on September 8, 2014, her attorney wrote a letter to the Region 4 Chairman that set forth her grievances. See infra pp. 6, 12. Though she claims to have become increasingly concerned about being alone with Smith, she says she feared that retaliation would result from voicing a complaint. Pl.'s Mot. Summ. J., Ex. 2 at 160; 154:10-11.

         The plaintiff claims she began recording conversations on her computer in her office after Smith mentioned in January 2010 that he was “ready for his big raise, ” though she did not begin these recordings until March 2012. Pl.'s Mot. Summ. J., Ex. 2. He planned to retire in three years, in 2013, and a raise would serve to increase his monthly retirement payments. Pl.'s Mot. Summ. J., Ex. 3 at 27-29. Price testified that she understood this as a request to “effectively ‘bury' the increase in the upcoming budget rather than show it as an increase in his salary.” Pl.'s Mot. Summ. J. 3, Ex. 2 at 33. According to the plaintiff, she refused his request because she thought it was unethical and unlawful. Id. at 34. Subsequently, Price feared losing her job and her benefits; she claimed to have been “instantly afraid” after he, according to the plaintiff, responded by stating: “Blood's thicker than water” once she denied his request. Defs.' Mot. Summ. J., Ex. D at 87:11-24. Price understood this statement to be “a threat.” Id. at 88:1. Smith's longtime support for Price to succeed him indicates that her fear was unwarranted.

         Prior to Smith's retirement, he had mentioned to Price that she would be a good replacement for him as Executive Director. Defendants reference an email in contending that Smith “began grooming” Price to succeed him in March 2009. Defs.' Mot. Summ. J. 4, Ex. J. In that email, Price stated that Smith told her she “needed [] to figure out a way [] to start traveling more to attend meetings on these projects and still be able to keep up with [her] current paper work. He [was] needing [her] to learn more about the projects for when [she] becomes Executive Director.” Id. She stated: “I know he is correct, but I am just not sure how I am going to be able to do it all.” Id.

         However, plaintiff claims that, beginning in around March 2012, Smith “refused to allow project calls to be directed to her.” Pl.'s Mot. Summ. J. 4, Ex. 1. He apparently “refused to give his contacts Price's phone number, and continued to maintain his R[egion] 4 issued mobile phone.” Pl.'s Mot. Summ. J. 4, Ex. 3 at 79, 80-81. In light of this, the plaintiff claims Smith was “actively preventing [her] from making the transition, ” but that her workload also prevented her from accompanying Smith to meetings and visiting projects. Pl.'s Mot. Summ. J. 4.

         Smith announced his retirement to the Executive Committee on March 20, 2013 and recommended that Price replace him. Pl.'s Mot. Summ. J. 4; Defs.' Mot. Summ. J. 4. The Executive Committee approved her appointment as the new Executive Director, effective November 1, 2013. Pl.'s Mot. Summ. J. 4. Plaintiff's appointment was ratified by the Executive Committee on April 17, 2013. Defs.' Mot. Summ. J. 4, Ex. L, at 3. Eleven days later, on April 28, 2013, Price expressed frustrations with her new transitional position in an email to a coworker, stating:

Now that I have been appointed director, I have more of an up hill battle of trying to motivate a burnt out staff and trying to do this with a burnt out director still messing shit up his last 6 months at work. I have told him, please just go in your office and sit for 6 months and we will find him if we need him. But oh no, he insists he is working until his last day. Today alone, he cause[d] 3 major screw ups! If I could get my foot in the door someplace else I would bail on this whole director position. So not worth the headache.

Defs.' Mot. Summ. J. at Ex. M. On or just prior to June 18, 2013, Price met with Smith to discuss the proposed budget for the 2013-2014 fiscal year, which plaintiff was to present to the Budget committee the following day. Pl.'s Mot. Summ. J. 4; Defs.' Mot. Summ. J. 5. During this conversation, the plaintiff told Smith she believed Region 4's employee handbook was “outdated” and a “huge liability” with particular respect to its overtime policy. Defs.' Mot. Summ. J. 5, Ex. N. The following exchange occurred as follows:

Smith: Well, it [Employee Handbook Revision] does need to be done, but let me say this. Larry Bradford went 13 years living under that risk. Tim Oxley went 5 years living under that risk. I went 21 years living under that risk.
Smith: It's just the way - it's just the way this agency has operated since its inception and never paid a penny of overtime, and never had a comp time policy, and it's improper, but it's how it has operated. It's not right, but it's worked. And it's hard to budget and -
Price: Well, I think we're just going to have to do like - you know, it's like everything else, like the government, whether it's state, local, federal. You're just going to have to budget so much, and then it's like, okay, once it's done, then it's done.

         Defs.' Mot. Summ. J., Ex. N at 16. Price also informed him that she included $50, 000 in the budget to cover either overtime payments or hiring additional staff to avoid paying overtime. Pl.'s Mot. Summ. J. 5. She also included a $15, 000 “line-item” for “contract services” for legal counsel to update the employee handbook. Defs.' Mot. Summ. J. 5, Ex. D at 196.

         The Budget committee approved the plaintiff's proposed budget at the meeting on June 19, 2013, and the Executive Committee approved it at an Executive Committee meeting later that evening. Defs.' Mot. Summ. J. 5. However, Price claims the meeting was “highly confrontational” towards her, in that at least one of the committee members asked her about her salary. Pl.'s Mot. Summ. J. 5. She also contends she was “accused” by Budget committee members “of a serious conflict of interest in ‘trying to set her own salary, '” and that Smith did not defend her “despite being the one who told her what salary to use.” Pl.'s Mot. Summ. J. 5. The plaintiff makes no citation to the record in support of these claims.

         By contrast, the defendants claim that at this meeting, someone asked a question about a “line item” that Price “had a little trouble answering, ” which "led to another question or two." Defs.' Mot. Summ. J. 5, Ex. G at 30. Insofar as the Executive Committee meeting was scheduled that same evening to approve the budget, time was “of the essence” and Smith asked the Budget committee to give Price "time to reflect" and answer the question at a later date. Id. at 31. In any case, Mr. Smith testified that ultimately, "everything was in order" with the plaintiff's budget. Id.

         Plaintiff claims the Executive Committee “placed numerous restrictions on [her] ascension to Executive Director” inasmuch as she “was required to continue to perform all of her work as Fiscal Manager, ” “recruit a candidate to replace her, train an accounting assistant, and transition into Smith's role during the final 30 days of his employment.” Pl.'s Mot. Summ. J. 5. On July 1, 2013, the plaintiff resigned from her promotion to Executive Director, effective November 1, 2013, and chose to remain Fiscal Manager/Assistant Executive Director. Pl.'s Mot. Summ. J. 6; Defs.' Mot. Summ. J. 7. The Executive Committee accepted plaintiff's resignation on July 8, 2013 and Region 4 hired John Tuggle, effective October 1, 2013, as her replacement.

         On October 13, 2013, Price, Smith, and one other employee discussed changes that were soon to take place in light of Tuggle's new leadership. Price expressed her concern with Tuggle's mandate, that all employees work five days per week, as she typically performed her forty-hour workweek in three or four days per week on average, and had been working a non-traditional workweek for a longer period of time than other Region 4 employees. Pl.'s Mot. Summ. J. Ex. 1. Smith assured her, however, that “[i]t's not hurting anybody” and that everyone will “get paid the same.” Id. He explained that this new policy made sense, insofar as it would ensure that all staff were present while Tuggle became acclimated with the agency. Id. He went on to say: “I think the good part of this is, it's [the current schedule permitting three to four-day workweeks] only been in place for three or four months. It's not like it's engrained.” Id. He further stated, “I know that you've [Price] been doing it longer, ” and that the new policy thus “hurts you maybe personally more than them, but you're part of the management team.” Id. The other male employee present added: “It's technically not fair to people who work more than five days.” Id. “What if everybody worked a three-day week? What would we do?” Id.

         On January 7, 2014, Price met with Tuggle to ask him about a “salary range” that she believed he wrongfully established for her. Pl.'s Mot. Summ. J., Ex. 1. The court notes that the parameters of the “salary range” are not specified. At this point, Price's salary had increased some $50, 000 over a thirteen year period - from $35, 000 in December 2001, to $85, 315 in January 2012 where it remained. Price inquired as to why she apparently exceeded her “range” in light of the fact that other employees received a salary raise while she did not. Id. Tuggle apologized, stating that he “shouldn't have said that, ” and clarified what he meant by “range” was that, “as of [then], ” she “[was] at the end of her range, ” and for her current position, the salary was appropriate. He stated that, however, after “a year and a half, ” her salary could be reevaluated for another raise. Id. Price continued to argue with Tuggle about the “range” he allegedly established for her pay.[1] Id.

         Eight months later, on September 5, 2014, Price sought medical leave for a “chronic medical condition” and requested that Region 4 provide her with “any forms or documents which need to be completed in order for [her] to request Family and Medical Leave, or any other applicable medical leave, under the Region 4 Planning & Development Council's policies.” Defs.' Mot. Summ. J., Ex. P. She claimed to be suffering from severe emotional distress due to the alleged “retaliatory actions of Tuggle and R4.” Pl.'s Mot. Summ. J. 7. It was at this point that Price's attorney, P. Rodney Jackson, who she retained in January 2014, sent the September 8, 2014 letter, which “outlin[ed] Price's complaints and potential claims of sex discrimination, sexual harassment, retaliation, and violation of federal wage and hour law to Mayor John Manchester, the Chair of R[egion] 4's Executive Board [sic, Executive Committee]” and also noted that Price had recorded conversations on her office computer. Defs.' Resp. to Pl.'s Mot. Summ. J. at Ex. N; Pl.'s Mot. Summ. J. 7-8; Pl.'s Mot. Summ. J. at Ex. 15.

         On or before September 18, 2014, Chairman Manchester provided Price with the forms for Family and Medical Act (“FMLA”) Leave, which the plaintiff returned completed by her healthcare provider, nurse practitioner Marnie Moose. Defs.' Mot. Summ. J. 6; Pl.'s Mot. Summ. J. 8, Ex. 9. However, as the plaintiff admits, the initial versions of these completed forms contained several errors. Defs.' Mot. Summ. J., Ex. Z. Pursuant to FMLA regulations, Region 4 requested clarification, and NP Moose added information to the forms. Defs.' Mot. Summ. J., Ex. D. Price provided Region 4 with the corrected forms on December 1, 2014. Defs.' Mot. Summ. J. 6, Ex. R. Region 4 granted the plaintiff's requested leave from September 8, 2014 to January 5, 2015. Defs.' Mot. Summ. J. 7, Ex. D at 291. Notably, Price claims no employee from Region 4 has ever been required to follow the FMLA certification process, but she offers no evidence to support this. Pl.'s Mot. Summ. J. 8.

         This period includes one extension of the leave, as NP Moose estimated in the documentation that Price “might be able to return to work on December 8, 2014.” Defs.' Mot. Summ. J. 7, Ex. S; Pl.'s Mot. Summ. J. 8, Ex. 14. Accordingly, Chairman Manchester sent a letter to Price requiring her to return to work on December 8th unless she furnished additional documentation from her healthcare provider approving additional leave. Pl.'s Mot. Summ. J. 8. Price provided the forms and Chairman Manchester granted the additional leave request.

         Price claims that Region 4 subjected her to surveillance by a private investigator who allegedly sought to obtain medical records from NP Moose. Pl.'s Mot. Summ. J. 8, Ex. 2 at 146-151; Ex. 14 at 21-24. Price also alleges that Tuggle placed her FMLA forms, which contained personal medical information, in her R[egion]4 personnel/human resources file, but does not point to anywhere in the record to support this contention. Pl.'s Mot. Summ. J. 8-9.

         The plaintiff returned to work on January 5, 2015. Pl.'s Mot. Summ. J. 9; Defs.' Mot. Summ. J. 7. Tuggle testified that he wanted to give Price “the chance to come back [after her medical leave] to work to see how that would work out, ” but that the recordings caused widespread stress at Region 4 and the plaintiff showed “no remorse whatsoever” for making them. Defs.' Mot. Summ. J., Ex. T. 19.

         Prior to when the plaintiff returned to work, Region 4 adopted revisions to the employee handbook on December 31, 2014. Pl.'s Mot. Summ. J. 9. The new handbook included a provision prohibiting recordings in the office and the use of “foul language, ” as well as a provision requiring employees to comply with the FMLA when applying for medical leave. Pl.'s Mot. Summ. J. at 9. Pl.'s Mot. Summ. J. 9, Ex. 2 at 198. On January 12, 2015, Price signed the handbook acknowledgment. Pl.'s Mot. Summ. J. 9. Tuggle then required her to complete a leave “questionnaire” regarding her time records.[2] Pl.'s Mot. Summ. J. 9, Ex. 13.

         On January 26, 2015 Price went to the U.S. Department of Labor, Wage, and Hour Division in Charleston and “notified a representative of R[egion] 4's violations of the FLSA [Fair Labor Standards Act].” Pl.'s Mot. Summ. J. 9. There is no evidence that anyone at Region 4 knew of Price's “notification” to the Department of Labor, Wage, and Hour Division or that the Department of Labor took any action as a result. On January 30, 2015, Tuggle terminated Price's employment due to her "unprofessional, disrespectful and inexcusable behavior in the workplace" in recording office conversations. Defs.' Mot. Summ. J. 8, Ex. U. The discharge form indicated that the recordings reveal Price's “use[] [of] profane language” and her “disparage[ment] [of] individuals at Region 4.” Id. It further noted that by recording “an outside professional without his knowledge, ” Price “planted a seed of distrust of Region 4 which could easily spread throughout the Region and State.” Id.

         Price filed her seven-count complaint on February 12, 2016, as follows:

Count I: Violation of the Fair Labor Standards Act (“FLSA”) and W.Va. Minimum Wage and Maximum Hours ...

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