United States District Court, S.D. West Virginia, Charleston
TERRI J. PRICE, Plaintiff,
REGION 4 PLANNING AND DEVELOPMENT COUNCIL, and JOHN F. TUGGLE, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. Senior United States District Judge.
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
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.
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
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.
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.
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;
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
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
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.
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
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.
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.
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.
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.
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.
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.
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. Id.
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.
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.
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.
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.
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.
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. Pl.'s Mot. Summ. J. 9, Ex. 13.
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.
filed her seven-count complaint on February 12, 2016, as
Count I: Violation of the Fair Labor Standards Act
(“FLSA”) and W.Va. Minimum Wage and Maximum Hours