Cumpston v. Central Supply Company of West Virginia

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TIMOTHY CUMPSTON,

Plaintiff,

v. CIVIL ACTION NO. 1:17CV61

(Judge Keeley)

CENTRAL SUPPLY COMPANY OF WEST

VIRGINIA and PATRICK SCOTT TUCKER,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

The plaintiff, Timothy Cumpston (“Cumpston”), was terminated

from his employment at the defendant, Central Supply Company of

West Virginia (“Central Supply”), one day after requesting six to

eight weeks of medical leave to recover from a necessary surgery.

Cumpston alleges that Central Supply and the defendant, Patrick

Scott Tucker (“Tucker”) (collectively, “the defendants”), violated

the Family and Medical Leave Act by terminating him. He further

alleges that the defendants discriminated and retaliated against

him because of his need for surgery and time to recover. He also

alleges that the defendants denied him wages for paid time off he

had accumulated, acted in an outrageous manner, and retaliated

against him for applying for short-term disability benefits.

Pending is the defendants’ motion for summary judgment (Dkt.

No. 80) and Cumpston’s motion to dismiss count six (Dkt. No. 79).

For the reasons that follow, the Court GRANTS the motions and

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

DISMISSES the Complaint WITH PREJUDICE.

I. BACKGROUND

A. The Facts

As it must, the Court recites the facts in the light most

favorable to the non-moving party. See Providence Square Assocs.,

L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).

1. Cumpston’s Employment History with Central Supply

In 1982, Cumpston began working for Central Supply, which

produces and supplies “ready mix” concrete and other building

materials throughout the state of West Virginia (Dkt. No. 80-3 at

13-14). Cumpston left Central Supply in 1989, but returned in 1994

and worked as a “boom truck” driver in Central Supply’s building

supply division until his termination on August 19, 2016 (Dkt. Nos.

82 at 1, 82-1). As a boom truck driver, Cumpston was responsible

for loading, securing, and delivering orders of block, stone,

brick, masonry, gravel, or other building supplies to both

commercial and residential customers (Dkt. No. 80-3 at 19-20).

During that time, Tucker, who was the Operations Manager for

Central Supply’s building supply division, served as Cumpston’s

direct supervisor. Id. at 2. Tucker in turn reported directly to

Dwayne McCartney (“McCartney”), the President of Central Supply

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

(Dkt. Nos. 81 at 2, 82-6 at 3).

After returning to Central Supply in 1994, Cumpston was

involved in seven safety-related incidents as a boom truck driver,

all of which occurred after 2006 (Dkt. Nos. 80-4, 80-5, 80-6, 80-7,

80-8, 80-9, 80-10). Although some of these incidents were

preventable or resulted in significant damage to company property,

the only punishment Cumpston ever received was a one-day suspension

without pay (Dkt. No. 80-6).

During his employment, Cumpston struggled with Crohn’s

disease. When Cumpston advised Central Supply of his struggle, it

conditionally granted him intermittent leave under the FMLA,

allowing him to take FMLA leave without having a doctor pre-certify

the leave’s medical necessity (Dkt. Nos. 80-1 at 16-17, 82-4). This

intermittent leave allowed Cumpston to take time off work when he

was suffering from “flare ups” (Dkt. No. 80-1 at 17-18). For the

next two years, Cumpston continued to work for Central Supply

without repercussion (Dkt. No. 80-1 at 16-18).

2. Cumpston’s 2016 Request for FMLA Leave

On August 18, 2016, Cumpston was diagnosed with diverticulitis

and told he needed to have surgery on September 7, 2016, to treat

it (Dkt. Nos. 80-1 at 19-20, 80-14). He also learned that he would

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MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

need six to eight weeks off work to recover from the surgery (Dkt.

No. 80-14). Cumpston immediately informed Tucker about his need for

surgery and medical leave (Dkt. No. 80-1 at 19-20).

3. Central Supply’s Reduction in Force and Cumpston’s

Termination

Tucker relayed this information via email to Central Supply’s

human resources manager, Beth Nuzum (“Nuzum”) (Dkt. No. 80-14).

Upon receiving Tucker’s email, Nuzum immediately recognized that

Cumpston was among those employees slated to be terminated by

Central Supply in a reduction in force (“RIF”) scheduled to be

announced the next day, August 19, 2016 (Dkt. No. 80-14). After

confirming with Heather Harper, Deputy General Counsel of

Oldcastle, Inc. (Central Supply’s parent company), that the planned

RIF was well documented, Nuzum terminated Cumpston, offering him a

severance package, which included $3,740.00 and 4 months of COBRA

health insurance coverage (Dkt. Nos. 80-1 at 31-32, 80-13 at 3, 80-

14).

It is undisputed that Central Supply had drafted his severance

agreement and had it ready to deliver no later than August 16,

2016——two days before Tucker and Nuzum learned of Cumpston’s need

for surgery (Dkt. No. 80-13). The RIF had been long in the making.

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

In early 2016, McCartney, Central Supply’s President, had realized

that a RIF might be necessary if Central Supply’s building supply

division continued to experience a decline in business (Dkt. No.

80-3 at 6-8, 25-26). Discussions about a RIF continued throughout

2016, until on August 11th, McCartney made the decision to proceed

with the RIF during a conference call with Harper and Nuzum. Id. at

6-8, 9-10. By then, Central Supply had already determined which

employees would be terminated should there be a RIF. Id. at 10-11,

25. These employees were selected following a comprehensive review

of all employees working in the building supply division. Id. at 4-

5. In all, Central Supply terminated three employees: a boom truck

driver (Cumpston), a fork lift operator, and an administrative

assistant (Dkt. Nos. 80-3 at 6, 80-13). Although Cumpston had more

experience than the other boom truck drivers, according to Central

Supply, he was selected for termination because he had been

involved in more safety-related incidents than the other drivers

(Dkt. Nos. 80-3 at 12, 80-4, 80-5, 80-6, 80-7, 80-8, 80-9, 80-10).

B. Procedural History

In March 2017, Cumpston sued the defendants in the Circuit

Court of Harrison County, West Virginia (Dkt. No. 1-1 ), alleging

(1) violation of the Family and Medical Leave Act, 29 U.S.C. §§

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

2601, et seq. (“FMLA”), (2) disability discrimination in violation

of the West Virginia Human Rights Act, W. Va. Code §§ 5-11B-1, et

seq. (“WVHRA”), (3) retaliatory discharge, (4) violation of the

West Virginia Wage Payment and Collection Act (“WVWPCA”), (5) tort

of outrage, and (6) short term disability insurance retaliation.

Id. at 6-8. In April 2017, the defendants removed the case to this

Court (Dkt. No. 1). It has been scheduled for trial beginning on

October 15, 2018 (Dkt. No. 11).

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling

on a motion for summary judgment, the Court reviews all the

evidence “in the light most favorable” to the nonmoving party.

Providence Square, 211 F.3d at 850. The Court must avoid weighing

the evidence or determining its truth and limit its inquiry solely

to a determination of whether genuine issues of triable fact exist.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of informing the

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Court of the basis for the motion and of establishing the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the

necessary showing, the non-moving party “must set forth specific

facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).

The “mere existence of a scintilla of evidence” favoring the non-

moving party will not prevent the entry of summary judgment; the

evidence must be such that a rational trier of fact could

reasonably find for the nonmoving party. Id. at 248–52.

III. DISCUSSION

A. FMLA Retaliation Claim

In Count One of the complaint, Cumpston alleges that the

defendants violated the FMLA when they unlawfully retaliated

against him by terminating his employment four days after being

notified of his need for surgery and corresponding medical leave

(Dkt. No. 1-1 at 6).1

1

Although Cumpston’s response opposing summary judgment suggests that he is

pursuing claims of both FMLA interference and FMLA retaliation, Count One of his

Complaint (which reads “Violation of FMLA”) only alleges a claim of FMLA

retaliation. But even if it were construed to allege a claim of FMLA

interference, that claim would fail for the same reasons that Cumpston’s

retaliation claim fails.

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Under 29 U.S.C. § 2615(a)(2), employers may not retaliate

against employees for exercising rights under the FMLA. See Dotson

v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009). Such claims are

analyzed under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Cumpston,

therefore, must first establish a prima facie case of FMLA

retaliation by proving three elements: (1) that he “engaged in

protected activity”; (2) that he suffered “an adverse employment

action”; and (3) that “there was a causal link between the

protected activity and the adverse employment action.” Mackey v.

Shalala, 360 F.3d 463, 469 (4th Cir. 2004). Once he establishes a

prima facie case, and if the defendants “offer[] a non-retaliatory

reason of the adverse action,” Cumpston “‘bears the burden of

establishing that the [Defendants’] proffered explanation is

pretext for FMLA retaliation.’” Vannoy v. Fed. Reserve Bank of

Richmond, 827 F.3d 296, 304 (4th Cir. 2016)(quoting Yashenko v.

Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)).

Accordingly, to survive summary judgment, Cumpston “‘must produce

sufficient evidence to create a genuine dispute of material fact

such that a reasonable factfinder could conclude the adverse

employment action was taken for an impermissible reason, i.e.,

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

retaliation.’” Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 192

(4th Cir. 2017) (quoting Sharif v. United Airlines, Inc., 841 F.3d

199, 203 (4th Cir. 2016)).

The defendants argue that Cumpston has not established a prima

facie case of retaliation because he can only establish the second

of the three prongs——that he suffered an adverse employment action

(Dkt. No. 81 at 9). They contend Cumpston was not engaged in a

protected activity when terminated, nor can he show any causal

connection between his protected activity and his termination. Id.

This argument is based on a fundamental misunderstanding of

the meaning of “prima facie,” which is defined as “[s]ufficient to

establish a fact or raise a presumption unless disproved or

rebutted; based on what seems to be true on first examination, even

though it ma[y] later be proved to be untrue.” Prima facie, Black’s

Law Dictionary (10th ed. 2014). Here, Cumpston notified the

defendants of his need for surgery and corresponding medical leave

on Thursday, August 18, 2016 (Dkt. No. 80-1 at 19-20). On Monday,

August 22, 2016, he met with a representative from Human Resources,

and was terminated, effective Friday, August 19, 2016 (Dkt. Nos.

80-1 at 31-33, 80-13 at 3). These facts establish a prima facie

case of FMLA retaliation. First, Cumpston engaged in protected

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

activity when he notified Central Supply of his need for surgery

and corresponding medical leave, see Krenzke v. Alexandria Motor

Cars, Inc., 289 F. App’x 629, 632 (4th Cir. 2008); second, he

suffered an adverse employment action, see Dowe v. Total Action

Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir.

1998), abrogated on other grounds by Burlington N. & Sante Fe Ry.

v. White, 548 U.S. 53, 68 (2006); and third, the temporal proximity

between his request for FMLA leave and his termination suggests a

causal link between the two, see Waag, 857 F.3d at 192.

Although the defendants point to evidence tending to disprove

Cumpston’s prima facie case (Dkt. No. 81 at 10-13), rebuttal

evidence does not preclude Cumpston from establishing a prima facie

case at the outset. Indeed, if it did, there would be no need for

the McDonnell Douglas burden-shifting framework. In short, Cumpston

has established a prima facie case of FMLA retaliation.

Once a plaintiff establishes a prima facie case, the burden

shifts to the defendant to “offer[] a non-retaliatory reason of the

adverse action . . . .” Vannoy, 827 F.3d at 304 (citation omitted).

The defendants insist that, instead of retaliating against him,

they terminated Cumpston in an economically-required RIF, which

Central Supply had decided to execute long before it knew of

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Cumpston’s need for FMLA leave (Dkt. No. 81 at 13-16). They contend

that he was specifically selected for inclusion in the RIF because

he was the boom truck driver with the most safety-related

incidents. Id. at 14.

This explanation is confirmed by the undisputed evidence. In

his deposition, Cumpston concedes that the defendants did not know

about his need for surgery and corresponding medical leave until

August 18, 2016, the day he notified Tucker (Dkt. No. 80-1 at 19-

20). Central Supply, however, had decided to include Cumpston in

its RIF by August 11, 2016——at least seven days before Cumpston

requested FMLA leave (Dkt. No. 80-3 at 9-11). Indeed, the severance

agreements for each employee included in the RIF had been completed

and were ready for distribution by August 16, 2016, two days before

Cumpston requested FMLA leave (Dkt. No. 80-13). Additionally, there

is no dispute that Cumpston was the boom truck driver with the most

safety-related incidents (Dkt. Nos. 80-3 at 12, 80-4, 80-5, 80-6,

80-7, 80-8, 80-9, 80-10).

Because the defendants have satisfied their burden of offering

a non-retaliatory reason for the adverse employment action,

Cumpston must show that Central Supply’s reason for terminating him

is “pretext for FMLA retaliation.” Vannoy, 827 F.3d at 304

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

(citation omitted). To do so, he must offer evidence that tends to

show that the defendants’ explanation is not credible, or that

retaliation is the most likely explanation. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).

Based on the facts alleged in Cumpston’s Complaint, it is

factually impossible for the RIF to serve as pretext for FMLA

retaliation when he was selected for termination on August 11,

2016, when no one (including Cumpston) knew about his need for

surgery and time off work until August 18, 2016. Recognizing this

problem, Cumpston argues that the defendants retaliated against him

because they knew of his struggle with Crohn’s disease and that he

may need extended time off in the future (Dkt. No. 82 at 4-11). In

addition, he argues that Central Supply’s RIF was not economically

required and, therefore, not credible. Both arguments are

unavailing.

First, there is no evidence from which a reasonable factfinder

could draw the inference that the defendants knew Cumpston “may

have needed extended time off prior to” terminating his employment

(Dkt. No. 82 at 6). Although Cumpston took FMLA leave in 2014

because of his struggle with Crohn’s disease, it is undisputed that

he took that leave without any repercussion for two years (Dkt. No.

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

80-1 at 16-18). This lapse in time negates any inference of

pretext. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th

Cir. 2015) (“[T]he causation standards for establishing a prima

facie retaliation case and proving pretext are not identical.

Rather, the burden for establishing causation at the prima facie

stage is ‘less onerous.’”); Dowe, 145 F.3d at 657 (“A lengthy time

lapse between the employer becoming aware of the protected activity

and the alleged adverse employment action, . . . negates any

inference that a causal connection exists between the two.”). And

a history of approving past requests for FMLA leave “is not the

record of a company that is historically hostile to FMLA leave in

any discernable way.” Sharif, 841 F.3d at 205.

Second, there is no evidence in the record to suggest that the

defendants knew that Cumpston had missed work in late July and

early August of 2016 for a colonoscopy and x-ray. Indeed, he only

submitted one “Return to Work Slip” that accounts for that period

of time, which states only that he missed work for an “appointment”

on July 25, 2016, and could return to work the following day (Dkt.

No. 82-2 at 12). A routine doctor’s note does not put an employer

on notice that its employee was having a certain procedure done, or

that he would need extended time off. See, e.g., Reeder v. Cty. of

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CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Wayne, 177 F. Supp. 3d 1059, 1071-72 (E.D. Mich. 2016) (“‘[A]

doctor's note that fails to state with specificity the condition

behind the prescribed leave or the treatment to be administered .

. . is insufficient on its own to provide notice to an employer of

the employee's request for FMLA leave.’” (quoting Festerman v. Cty.

of Wayne, 611 F. App’x 310, 315 (6th Cir. 2015))). Moreover, even

had the defendants known that Cumpston was scheduled to undergo a

colonoscopy and x-ray, it is unreasonable to suggest that those

procedures, alone, would forecast the need for surgery and an

extended period of time off work.

Third, Central Supply’s size does not preclude it from

economic reality. If the economy or a section of the economy

suffers an economic downturn, companies both large and small suffer

its effects. Here, McCartney testified that Central Supply’s

building supply division was suffering an ongoing decline in

business because of market conditions and changes in the

construction industry (Dkt. No. 80-3 at 6, 17-18). Before,

buildings were constructed with masonry block and backed up by

brick. Id. at 18. Now, buildings are constructed with insulated

concrete forms or metal studs, insulation, and brick. Id. He also

testified that because the construction industry lacks qualified

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

masons to do the work, “specifiers” have turned to other building

specifications. Id. All of these factors led to a decrease in

orders in Central Supply’s building supply division. Id. McCartney

had monitored the building supply division’s performance throughout

2016, and when its performance did not improve that summer, he

determined that Central Supply would have to proceed with the RIF.

Id. at 6-8, 25-26. According to McCartney, Cumpston’s position was

eliminated based on the building supply line’s actual needs. Id. at

23-24. Central Supply had no legal obligation to transfer him to

its ready mix division, and Cumpston had not applied for any open

positions in that division.

Fourth, there is no evidence that Central Supply’s explanation

that it decided to RIF Cumpston based on his driving record is not

credible. McCartney testified that Central Supply’s comprehensive

review of personnel files included an emphasis on safety (Dkt. Nos.

80-3 at 4-5). It is undisputed that the boom truck drivers retained

had fewer safety-related accidents than Cumpston (Dkt. Nos. 80-3 at

12). Nor is there any evidence to suggest that boom truck drivers

with similar driving records were not terminated. See Laing v. Fed.

Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013) (noting that evidence

of similarly situated employees (but for the protected

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

characteristic) receiving more favorable treatment is “especially

relevant” to showing pretext under the Mcdonnell Douglas burden-

shifting framework).

At bottom, Cumpston has failed to produce sufficient evidence

to support a plausible inference that the defendants’ reason for

terminating his employment was pretext for FMLA retaliation, let

alone show that it was the but-for cause of his termination. See

Foster, 787 F.3d at 252 (holding “that the McDonnell Douglas

framework has long demanded proof at the pretext stage that

retaliation was a but-for cause of a challenged adverse employment

action”). The Court therefore GRANTS the defendants’ motion to

dismiss Count One of the Complaint.

B. State Law Discrimination Claim

In Count Two of the complaint, Cumpston contends that the

defendants’ decision to terminate his employment was substantially

motivated by his disability in violation of the West Virginia Human

Rights Act (Dkt. No. 1-1 at 4).

The West Virginia Human Rights Act (“the WVHRA”), W. Va. Code

§§ 5-11-1, et seq., prohibits employers from discriminating against

any individual with respect to “compensation, hire, tenure, terms,

conditions or privileges of employment.” W. Va. Code § 5-11-9(C).

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Discrimination “means to exclude from, or fail or refuse to extend

to, a person equal opportunities because of . . . disability . . .

.” W. Va. Code § 5-11-3(h). The Act defines disability as

(1) A mental or physical impairment which

substantially limits one or more of such

person's major life activities. The term

“major life activities” includes functions

such as caring for one's self, performing

manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working;

(2) A record of such impairment; or

(3) Being regarded as having such an

impairment.

Id. at § 5-11-3(m).

Discrimination claims brought under the WVHRA are governed by

the burden-shifting framework of Title VII of the Civil Rights Act

of 1964, as set forth in McDonnell Douglas. See Shepherdstown

Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights

Comm’n, 309 S.E.2d 342, 352 (W. Va. 1983) (reaffirming use of the

McDonnell Douglas standard in West Virginia).

In order to set forth a prima facie case of impermissible

employment discrimination under the WVHRA, Cumpston must establish:

(1) that he is a member of a protected class; (2) that the employer

made an adverse employment decision affecting him; and (3) that,

but for his protected status, the employer would not have made the

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OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

adverse decision.2 Syl. pt. 3, Conaway v. E. Associated Coal Corp.,

358 S.E.2d 423, 429 (W. Va. 1986). To establish the third element

of the prima facie case, Cumpston must “show some evidence which

would sufficiently link the employer’s decision and [his] status as

a member of a protected class so as to give rise to an inference

that the employment decision was based on an illegal discriminatory

criterion.” Id. at 429-30.

Once Cumpston establishes a prima facie case under Conaway,

the burden shifts to the defendants to advance a non-discriminatory

reason for the his dismissal. Conaway, 358 S.E.2d at 430. “The

reason need not be a particularly good one. It need not be one

which the judge or jury would have acted upon. The reason can be

any other reason except that the plaintiff was a member of a

protected class.” Id. If the defendants offer a legitimate, non-

discriminatory reason for their decision, Cumpston has the burden

of proving that the facially legitimate reason given by the

employer for the employment decision was merely a pretext for a

2

Here, the Court need not decide whether to apply the modified prima facie case

formulation set forth by the Fourth Circuit in Corti v. Storage Tech. Corp., 304

F.3d 336, n. 6 (4th Cir. 2002) because “the complexities and difficulties of

determining what employee was replaced by whom in the typical mass layoff case

is simply not an issue here.” O’Connor v. Consolidated Coin Caterers Corp., 56

F.3d 542, 546 (4th Cir. 1995) (questioning applicability of RIF prima facie

formulation where the reduced “force” consisted of two people, and although the

plaintiff’s position was eliminated, he was essentially replaced by another

employee), rev’d on other grounds, 517 U.S. 308 (1996).

18

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

discriminatory motive. Eddy v. Biddle, No. 1:11CV137, 2013 WL

66929, at *6 (N.D. W. Va. Jan. 4, 2013) (quoting Ford Motor Credit

Co. v. W. Va. Human Rights Comm’n, 696 S.E.2d 282, 293 (W. Va.

2010)). In other words, “[t]o get to the jury, [Cumpston] must

offer sufficient evidence that the [defendants’] explanation was

pretextual to create an issue of fact.” Skaggs v. Elk Run Coal Co.,

Inc., 479 S.E.2d 561, 583 (W. Va. 1996).

Here, the defendants argue that Cumpston’s WVHRA claims fails

as a matter of law because he has not established a prima facie

case of disability discrimination (Dkt. No. 81 at 16-17). Cumpston,

however, insists that the defendants were well aware of his Crohn’s

disease, his July 2016 colonoscopy, and his August 2016 “testing”

related to his Crohn’s disease, all of which tends to show that

Central Supply’s decision to RIF him was pretextual (Dkt. No. 82 at

12).

While Cumpston undoubtably suffered an adverse employment

action, it is unclear whether his need for surgery and medical

leave rendered him disabled within the meaning of the WVHRA.3 The

3

As alleged in Count Two of the Complaint, Cumpston’s claim of disability

discrimination is not based on his Crohn’s disease, but rather on his need for

surgery and corresponding medical leave. Even if his claim were based on Crohn’s

disease, it is still unclear whether it “substantially limits” one or more of his

“major life activities” as to qualify it as a disability under the WVHRA.

19

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Court need not decide this question; even if he was disabled,

Cumpston’s claim of disability discrimination fails because he

cannot show that he would not have been terminated “but for” his

disability. Indeed, all of the evidence establishes that Cumpston

would have been included in Central Supply’s RIF regardless of

whether he needed surgery (Dkt. Nos. 80-3 at 9-11, 80-13).

Even if Cumpston could establish a prima facie case of

disability discrimination under the WVHRA, his claim would still

fail because it is factually impossible for the RIF to serve as

pretext for disability discrimination. When he was selected for

termination on August 11, 2016, no one (including Cumpston)knew

about the alleged disability until August 18, 2016. See supra

Section III.A.

The outcome here might have been avoided had Cumpston alleged

in his Complaint that the defendants discriminated against him

based on his Crohn's disease. But the Court will not allow Cumpston

to amend his complaint at this late stage to avoid summary

judgment, especially when those facts were available to him at the

outset. Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th Cir.

1996) (“A plaintiff may not amend his complaint through arguments

in his brief in opposition to a motion for summary judgment.”

20

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

(citation omitted)); Anderson v. Consol-Pa. Coal Co., 740 F. Supp.

1126, 1130 (W.D. Pa. 1990) (“We will not allow plaintiffs to expand

their theory of the case at this late date in an effort to avoid

summary judgment.”). And even if he had alleged different facts,

the defendants’ knowledge of Cumpston’s Crohn’s disease, alone, is

not enough to establish pretext. Where, as here, Cumpston had taken

medical leave because of his Crohn’s disease without repercussion

for at least two years (Dkt. No. 80-1 at 16-18).

In addition, none of the evidence attached to Cumpston’s

response brief supports his assertion that the defendants actually

knew about his July 2016 colonoscopy or his August 2016 “testing”

(Dkt. No. 82 at 12). Exhibit C is a collection of emails notifying

the defendants that Cumpston would be missing work because he was

sick or had doctors appointments (Dkt. No. 82-3). Tellingly, these

are not emails from July or August of 2016. Id. Exhibit E is a

collection of Cumpston’s hand-written notes, which were not written

contemporaneously with the events as they occurred (Dkt. No. 83-1

at 5-6). But even these notes do not suggest——let alone prove——that

the defendants were aware of Cumpston’s July 2016 colonoscopy or

August 2016 testing (Dkt. No. 82-5).

In short, Cumpston’s claim of disability discrimination fails

21

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

for lack of proof of a prima facie case. Moreover, he’s failed to

provide any evidence that the defendants’ RIF was pretextual.

Accordingly, the Court GRANTS the defendants’ motion to dismiss

Count Two of the Complaint.

C. State Law Retaliation Claim

In Count Three of the Complaint, Cumpston alleges a common law

claim of retaliatory discharge (Dkt. No. 1-1 at 7-8). The

defendants contend that this claim fails as a matter of law because

it is preempted by the remedial schemes and statutory remedies set

forth in the FMLA and WVHRA (Dkt. No. 81 at 17-19). They also argue

that this claim should fail because Cumpston has not identified a

substantial public policy that supports his claim. Id. at 19-21. In

response, Cumpston argues that the FMLA and the WVHRA do not

preempt his related state law retaliation claim, which is supported

by the substantial public policies set forth in the FMLA and the

WVHRA (Dkt. No. 82 at 12-14).

Here, the Court need not decide whether Cumpston’s state law

claim is preempted because he has not successfully established a

claim for relief for retaliatory discharge in contravention of

substantial public policy. To successfully present such a claim,

West Virginia law requires Cumpston to “plead and prove the

22

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

following elements”:

1. That a clear public policy existed and was

manifested in a state or federal constitution,

statute or administrative regulation, or in

the common law (the clarity element).

2. That dismissing employees under

circumstances like those involved in the

plaintiff’s dismissal would jeopardize the

public policy (the jeopardy element).

3. The plaintiff’s dismissal was motivated by

conduct related to the public policy (the

causation element).

4. The employer lacked overriding legitimate

business justification for the dismissal (the

overriding justification element).

Burke v. Wetzel Cty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018)

(footnote omitted). “[A] Harless-based action requires more than

simply raising the spectrum of a potentially governing law.” Id.

(quoting Frohnapfel v. ArcelorMittal USA LLC, 772 S.E.2d 350, 355

(W. Va. 2015)). “The mere citation of a statutory provision is not

sufficient to state a cause of action for retaliatory discharge

without a showing that the discharge violated the public policy

that the cited provision clearly mandates.” Id. (quoting Swears v.

R.M. Roach & Sons, Inc., 696 S.E.2d 1, 7 (W. Va. 2010)).

Cumpston’s allegations under Count Three of his complaint do

not even cite the FMLA or the WVHRA, let alone satisfy the four-

23

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

part test set forth in Burke (Dkt. No. 1-1 at 7-8). Moreover even

if he had successfully pleaded his state law retaliation claim, it

would fail because the defendants have provided a legitimate

business justification for his termination. As discussed in detail

in Section III.A, the defendants terminated Cumpston’s employment

because of an economic downtown in Central Supply’s building supply

business, and because he was the boom truck driver with the most

safety-related incidents (Dkt. Nos. 80-3 at 6-8, 12, 80-4, 80-5,

80-6, 80-7, 80-8, 80-9, 80-10). Neither reason violates a

substantial public policy. Therefore, the Court GRANTS the

defendants’ motion to dismiss Count Three of the Complaint.

D. West Virginia Wage Payment and Collection Act Claim

In Count Four of the Complaint, Cumpston alleges that the

defendants violated the West Virginia Wage Payment and Collection

Act (“the WVWPCA”) by failing to pay him wages for accumulated paid

time off (Dkt. No. 1-1 at 8). The defendants argue that this claim

must be dismissed because “Central Supply has an express, clear,

written policy which states that unused vacation and sick time is

forfeited upon separation of employment,” which Cumpston understood

as a term of his employment (Dkt. No. 81 at 22-23). Because

Cumpston has not responded to this argument, the Court considers it

24

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

undisputed for purposes of summary judgment. See Fed. R. Civ. P.

56(e)(2).

Generally, the WVWPCA requires an employer to pay an

employee’s final wages, including any accrued or calculable fringe

benefits, on or before the next regular payday on which the wages

would otherwise be due and payable:

Whenever a person, firm or corporation

discharges an employee, or whenever an

employee quits or resigns from employment, the

person, firm or corporation shall pay the

employee's wages due for work that the

employee performed prior to the separation of

employment on or before the next regular

payday on which the wages would otherwise be

due and payable: Provided, That fringe

benefits, as defined in section one of this

article, that are provided an employee

pursuant to an agreement between the employee

and employer and that are due, but pursuant to

the terms of the agreement, are to be paid at

a future date or upon additional conditions

which are ascertainable are not subject to

this subsection and are not payable on or

before the next regular payday, but shall be

paid according to the terms of the agreement.

W. Va. Code § 21-5-4(b). Fringe benefits “means any benefit

provided an employee or group of employees by an employer, or which

is required by law,” including vacation and sick leave. W. Va. Code

§ 21-5-1(l). The Supreme Court of Appeals, however, has recognized

that “the terms of employment may condition the vesting of a fringe

25

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

benefit right on eligibility requirements in addition to the

performance of services, and these terms may provide that unused

fringe benefits will not be paid to employees upon separation from

employment.” Syl. Pt. 5, Meadows v. Wal-Mart Stores, Inc., 530

S.E.2d 676 (W. Va. 1999) (emphasis added).

Here, the terms of Cumpston’s employment did just that.

Central Supply’s Employee Handbook explicitly states that “[i]n the

event of severance of employment, either voluntary or involuntary,

unused vacation time will be forfeited” (Dkt. No. 80-16 at 5). It

also states that “[i]n the event of severance of employment, either

voluntary or involuntary, unused sick time will be forfeited.” Id.

at 6. Because the terms of Cumpston’s employment clearly state that

unused vacation and sick time would be forfeited upon the severance

of employment, his WVWPCA claim fails as a matter of law.

Accordingly, the Court GRANTS the defendants’ motion to dismiss

Count Four of the Complaint.

E. Tort of Outrage Claim

In Count Five of the Complaint, Cumpston pleads a tort of

outrage, alleging that his wrongful termination was undertaken in

an outrageous manner, resulting in the intentional infliction of

emotional distress (Dkt. No. 1-1 at 9). The defendants argue that

26

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

Cumpston’s own testimony establishes that his termination was

anything but outrageous (Dkt. No. 81 at 25). Cumpston nevertheless

insists that the defendants’ conduct was outrageous because he was

“devastated” and Central Supply ignored his multiple attempts to

contact HR after he was terminated (Dkt. No. 82 at 15).

Under West Virginia law, to establish the tort of outrage,

which is also known as intentional infliction of emotional

distress, Cumpston must establish the following four elements:

(1) that the defendant's conduct was

atrocious, intolerable, and so extreme and

outrageous as to exceed the bounds of decency;

(2) that the defendant acted with the intent

to inflict emotional distress, or acted

recklessly when it was certain or

substantially certain emotional distress would

result from his conduct; (3) that the actions

of the defendant caused the plaintiff to

suffer emotional distress; and, (4) that the

emotional distress suffered by the plaintiff

was so severe that no reasonable person could

be expected to endure it.

Syl. Pt. 3, Travis v. Alcon Labs., 504 S.E.2d 419 (W. Va. 1998). In

other words, the defendants’ conduct must have “been so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Id. at 425

(quotation omitted). In the employment context, “when the

27

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

employee's distress results from the fact of his discharge-e.g.,

the embarrassment and financial loss stemming from the plaintiff's

firing-rather than from any improper conduct on the part of the

employer in effecting the discharge, then no claim for intentional

infliction of emotional distress can attach.” Syl. Pt. 2, Dzinglski

v. Weirton Steel Corp., 445 S.E.2d 219 (W. Va. 1994).

Here, the evidence falls woefully short of satisfying the

four-part test in Travis. In his deposition, Cumpston testified

that he was terminated during a face-to-face meeting with Nuzum,

during which she first informed him that he was being terminated

because Central Supply was downsizing, and then offered him a

severance package (Dkt. No. 80-1 at 31-33). Cumpston acknowledged

that Nuzum did not raise her voice, scream, or yell at him when

discussing his termination, nor did she use any profanity or

inappropriate language. Id. at 32-33. Indeed, he testified that she

acted in a completely professional manner. Id. Despite this,

Cumpston claims he was “devastated” by his termination and felt

like a criminal when he was escorted from the premises by Nuzum

following the meeting. Id. at 33.

Simply put, even if hurtful, none of this conduct was “so

outrageous in character, and so extreme in degree, as to go beyond

28

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Travis, 504

S.E.2d at 425. Although Cumpston was distressed, that distress

was——by his own admission——not the result of Nuzum’s conduct (Dkt.

No. 80-1 at 31-33). Because the evidence falls far short of

satisfying the four-part test set forth in Travis, Cumpston’s claim

of tort of outrage fails as a matter of law. Therefore, the Court

GRANTS the defendants’ motion and DISMISSES Count Five of the

Complaint.

F. Short Term Disability Insurance Retaliation Claim

In Count Six of the Complaint, Cumpston alleges a claim of

short-term disability insurance retaliation (Dkt. No. 1-1 at 9). He

now seeks to voluntarily dismiss Count Six (Dkt. No. 79). Under the

Federal Rules of Civil Procedure, after the defendant has served an

answer, a claim or cause of action “may be dismissed at the

plaintiff’s request only by court order, on terms that the court

considers proper.” Fed. R. Civ. P. 41(a)(2). After considering

Cumpston’s motion, and finding good cause, the Court GRANTS the

motion (Dkt. No. 79) and DISMISSES Count Six of the Complaint.

IV. CONCLUSION

For all the reasons discussed, the Court:

29

CUMPTSON v. CENTRAL SUPPLY COMPANY 1:17CV61

OF WEST VIRGINIA, et al.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 80), AND

GRANTING PLAINTIFF’s MOTION TO DISMISS COUNT SIX (DKT. NO. 79)

(1) GRANTS Cumpston’s motion to dismiss Count Six of the

Complaint (Dkt. No. 79) and DISMISSES Count Six WITH

PREJUDICE; and

(2) GRANTS the defendants’ motion for summary judgment (Dkt.

No. 80) and DISMISSES the Complaint WITH PREJUDICE.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to counsel of record and enter a separate judgment order in favor

of the defendants Central Supply Company of West Virginia and

Patrick Scott Tucker.

DATED: October 5, 2018.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

30