Spatafore v. City of Clarksburg

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

DOMINIQUE SPATAFORE,

Plaintiff,

v. CIVIL ACTION NO. 1:22-CV-108

(KLEEH)

CITY OF CLARKSBURG,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT [ECF NO. 23]

Pending before the Court is Defendant, City of Clarksburg’s

Motion for Summary Judgment [ECF No. 23]. For the reasons discussed

herein, the Motion is GRANTED.

I. PROCEDURAL HISTORY

On September 22, 2022, Plaintiff Dominque Spatafore filed

suit in the Circuit Court of Harrison County, West Virginia.

Defendant City of Clarksburg removed the action to this Court on

October 18, 2022. ECF No. 1. Plaintiff’s Complaint alleged (1)

Family and Medical Leave Act (“FMLA”) retaliatory discharge, (2)

disability discrimination under the West Virginia Human Rights

Act, (3) retaliatory discharge in violation of a substantial public

policy, and (4) a constitutional tort under the West Virginia

Constitution. ECF No. 1-3. The Court dismissed Count Four upon an

unopposed motion by Defendant. ECF No. 22.

On October 6, 2023, Defendant filed Defendant, City of

Clarksburg’s Motion for Summary Judgment [ECF No. 23]. On March 5,

2024, Plaintiff responded in opposition to summary judgment [ECF

No. 44], and Defendant filed its reply in support on March 19,

2024 [ECF No. 59]. Thus, the Motion is fully briefed and ripe for

review.

II. FACTUAL BACKGROUND

This lawsuit arises from Plaintiff Dominque Spatafore’s

(“Plaintiff” or “Spatafore”) discharge from the City of

Clarksburg’s (“Defendant” or “City”) employment. Defendant hired

Plaintiff as the Marketing and Community Relations Specialist in

November 2014. Def. Ex. A, Def.’s Mot. Summ. J., ECF No. 24.

On October 20, 2020, Plaintiff received a copy of the City’s

Personnel & Administrative Policies and Procedures Manual

(“Handbook”). Id. at Def. Ex. C. Plaintiff understood that it was

her responsibility to comply with the Handbook’s policies and

procedures. Id.

The City follows a progressive discipline policy. Pl. Ex. 2,

Pl.’s Resp. in Opp., Harry Faulk Dep. at 30:17-20, ECF No. 44-2.

During her employment, Plaintiff received verbal warnings for

taking an extended lunch hour on February 2, 2021, and for improper

notification for an absence on January 29, 2021. Def. Ex. D, Def.’s

Mot. Summ. J., ECF No. 24.

On June 1, 2021, Plaintiff began reporting to the new Director

of Economic Development, John Whitmore, as her direct supervisor.

Id. at Def. Ex. F. Previously, Plaintiff’s direct supervisor was

City Manager Harry Faulk. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry

Faulk Dep. at 25:19 – 26:1, ECF No. 44-2.

Plaintiff suffers from Crohn’s disease and an eating

disorder. Id. at Pl. Ex. 1, Dominque Spatafore Dep. at 110:7-

112:24, ECF No. 44-1. Plaintiff claims she took days off while

employed with the City due to her Crohn’s disease flaring up. Id.1

On July 21, 2021, Plaintiff informed the City that she would be

entering a four-week residential treatment program for an eating

disorder. Def. Ex. G, Def.’s Mot. Summ. J., ECF No. 24; Pl. Ex 3,

ECF No. 44-3. The City provided Spatafore with information

regarding the FMLA leave process, and her request for leave was

granted. Def. Exs. H, I, Def.’s Mot. Summ. J., ECF No. 24; Pl. Ex.

4, Pl.’s Resp. in Opp., ECF No. 44-4. Pursuant to the City’s

Handbook, Plaintiff was required to use her accumulated paid leave

time before taking FMLA. Def. Ex. J, Def.’s Mot. Summ. J., ECF No.

24. The City also permitted employees to transfer sick days to

other employees facing medical issues that required at least one

month off work. Id. However, an employee would only receive the

amount of donated time required and the City’s policy provided

1 The record does not show that the City, namely City Manager Harry

Faulk, knew Plaintiff had taken sick days due to her Crohn’s disease.

Rather, Faulk learned of Plaintiff’s Crohn’s disease in 2021 when she

went to rehabilitation for her eating disorder. Faulk Dep., ECF No. 44-

2. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry Faulk Dep. at 172:22-24, ECF

No. 44-2.

that any excess donated would be returned to the donors. Id.

City Manager Harry Faulk approved Spatafore’s request to

solicit for donated paid leave time. Def. Exs. K-M, Def.’s Mot.

Summ. J., ECF Nos. 24, 24-1. Plaintiff received enough donated

time that she was paid for the entirety of her rehabilitation

program. Id. at Def. Exs. B, P. In fact, Plaintiff received more

donated time than she required, so the excess time donations were

returned to the donors in accord with the City’s Handbook policy.

Id. at Def. Ex. Q.

Upon completion of her rehabilitation program, Plaintiff

returned to work on September 13, 2021. Pl. Ex. 2, Pl.’s Resp. in

Opp., Harry Faulk Dep. at 174:15-18, ECF No. 44-2. Thereafter,

Plaintiff requested to periodically take longer lunch breaks and

adjust her working hours to attend therapy. The City granted

Plaintiff’s request. Def. Ex. B, Spatafore Dep. at 121: 7-122: 17,

ECF No. 24; Def. Ex. R, ECF No. 24-1.

On September 20, 2021, City Manager Faulk requested Plaintiff

make a certain social media posting at 8:30 a.m. However, Plaintiff

did not make the posting as required because she was waiting on a

picture to be included in the post. Id. at Def. Ex. S, ECF No. 24-

1. Following, Plaintiff requested a meeting to discuss her job

duties. Id.

From September 22, 2021 to September 24, 2021, Plaintiff was

required to take unpaid leave because she exhausted all her sick

leave. Id. at Def. Ex. U, ECF No. 24-1; Pl. Ex. 7, Pl.’s Resp. in

Opp., ECF No. 44-7. Upon notification from the City that her sick

time would be unpaid, Plaintiff called the City’s policy

“regressive” and requested to use leave time that had been donated

to her when she was on FMLA leave. Def. Ex. U, ECF No. 24-1.

However, the excess leave time had already been returned to the

donors, in accord with the Handbook. Id.

As previously requested, Faulk and others met with Plaintiff

to discuss her job duties, as part of a Performance Improvement

Plan, on September 28, 2021. Pl. Ex. 2, Pl.’s Resp. in Opp., Harry

Faulk Dep. at 174:19-22, ECF No. 44-2. During the meeting,

Plaintiff was advised that her work performance had been

unsatisfactory, including “limited communication regarding use of

sick leave and leave of absence from the position; failure to

complete tasks in a timely manner (website updates, Facebook posts,

weekly work reports, position description)”. Def. Ex. V, Def.’s

Mot. Summ. J., ECF No. 24-1. Plaintiff thereafter informed the

City that she did not believe she could meet the goals outlined in

her performance plan. Def. Ex. B, Spatafore Dep. at 214: 18-22,

Def.’s Mot. Summ. J., ECF No. 24.

Based upon Plaintiff’s stated concern that she might not be

able to complete the duties of her position, Plaintiff and the

City discussed an open position in the Finance Department as an

account clerk. Id. at 214: 23-215: 11. Plaintiff applied for and

was subsequently transferred to the account clerk position. Id. at

Def. Exs. W-Y, ECF No. 24-1. Plaintiff earned the same salary and

benefits in the new position, as she previously received as the

Marketing and Community Relations Specialist. Id. at Def. Ex. B,

Spatafore Dep. at 179:11-16. As part of Plaintiff’s transfer to

the Finance Department, Plaintiff’s direct supervisor became Kim

Karakiozis. Id. at Def. Ex. X.

On or about October 21, 2021, Plaintiff Facebook messaged

Justine Marino, the wife of the City’s then-Mayor, to complain

regarding various aspects of her employment with the City. Id. at

Def. Ex. Z. She further asked Mrs. Marino to pass her complaints

along to the then-Mayor James Marino. Id. The messages were

forwarded to the then-Mayor James Marino and then on to City

Manager Faulk. Id.

On December 10, 2021, City Manager Faulk issued an internal

memorandum clarifying that the Governor’s proclamation regarding

Christmas Eve and New Year’s Eve as State holidays only applied to

State employees – not city employees. Id. at Def. Ex. AA. While

the City employees would not work the Friday of Christmas Eve

because Christmas fell on a Saturday, the City employees would not

additionally have the Thursday prior off in recognition of

Christmas Eve. Id. at Def. Ex. N, Faulk Dep. at 206:7-207:11.

Soon after on December 12, 2021, Plaintiff tested positive

for Covid-19 and was required to quarantine for at least ten days.

Id. at Def. Ex. BB; Pl. Ex. 8, Pl.’s Resp. in Opp., ECF No. 44-8.

Because Plaintiff already exhausted her paid leave time, the City

informed Plaintiff on December 14, 2021, that she would need to

use unpaid time. Def. Ex. CC, Def.’s Mot. Summ. J., ECF No. 24-1;

Pl. Ex. 9; Pl.’s Resp. in Opp., ECF No. 44-9. Plaintiff told the

City that she found this “completely unfortunate and unacceptable”

and believed the policy was “incredibly regressive”. Id. at Def.

Ex. CC.

On the same day, Plaintiff emailed the Mayor, the City Council

members, and several City employees to express her grievance with

having to use unpaid leave for Covid-19. Def. Ex. DD, Def.’s Mot.

Summ. J., ECF No. 24-1; Pl. Ex. 10, Pl.’s Resp. in Opp., ECF No.

44-10. Plaintiff also claimed in her email that the City Manager

and Human Resources Coordinator took away her donated leave time.

Id. In contravention to the Handbook’s grievance policy, Plaintiff

did not first raise the issue of unpaid leave for Covid-19 with

her direct supervisor. Def. Ex. B, Spatafore Dep. at 152:1-153:2,

231:2-7. See Id. at Def. Ex. J (“An employee with a grievance must

follow the procedural guidelines established for resolving

grievances.. . .STEP 1: The grievant must attempt to resolve the

problem with his/hers immediate supervisor.”).

The next day, Plaintiff posted a comment to a post on the

City’s official Facebook page regarding a Christmas Luncheon. Id.

at Def. Ex. EE. The comment read:

I would hardly call Cost of Living Adjustment

a raise. If I remember correctly, it's maybe

an extra $5.00 per pay. I have been there 7

years and never received a "raise". I however

do appreciate the $200 Christmas bonus.

The employee party is a nice gesture. However,

I'd much rather be “appreciated” every day at

work by being treated with respect by the city

manager.

Also - the Governor recently declared

Christmas Eve and New Year's Eve as holiday s

- but the City Manager stated he does not have

to follow the governors directives and we will

work on Christmas Eve and New Year's Eve.

How's that for appreciation.

Id. Plaintiff then posted the December 10, 2021 internal memorandum

in the comment section. Id.

On or about December 15, 2021, Plaintiff again messaged

Justine Marino regarding grievances with her employment, asking

them to be shared with her husband. Id. at Def. Ex. FF. Spatafore

acknowledged that she violated the grievance policy by contacting

the then-Mayor’s wife and asking that the information be passed

along, instead of going to her direct supervisor. Id. at Def. Ex.

B, Spatafore Dep. at 200:21-201:21.

The next day, the City posted on Facebook that City Hall would

be closed on December 24, 2021 and December 27, 2021. Id. at Def.

Ex. GG; Pl. Ex. 11, Pl.’s Resp. in Opp., ECF No. 44-11. Plaintiff

again posted the internal memorandum to the comment section of the

City’s posting and commented, “I am questioning as when employees

previously asked if we would receive Christmas Eve and New Year's

Eve going forward, we received a memo stating we would not.” Id.

Notably, Plaintiff and all other City employees did not work on

Christmas Eve because Christmas fell on a Saturday. Def. Ex. B,

Spatafore Dep. at 155: 11-159: 18.

Ultimately, the City terminated Plaintiff’s employment on

December 20, 2021, due to “issues including insubordination,

insolence, and unsolicited distribution of internal documents.”

Id. at Def. Ex. FF; Pl. Ex. 13, Pl.’s Resp. in Opp., ECF No. 44-

13. According to the Defendant, the insubordination related to

Plaintiff violating the City’s grievance policy and Plaintiff’s

“chronic absenteeism”, including improper call-offs and extended

lunch breaks. ECF No. 24 at p. 11. The distribution of internal

documents referred to the December 10, 2021 internal memorandum

Plaintiff posted on Facebook twice. Id. Further, the insolence

referred to Plaintiff claiming the City did not follow the

Governor’s directives. Id.

In contrast, Plaintiff claims she was discharged in

retaliation for using FMLA leave, was discriminated against

because she has Crohn’s disease and suffers from an eating

disorder, and that she was retaliated against for speaking on a

matter of public concern as a private citizen. ECF No. 44.

III. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18.

Summary judgment is proper “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-

moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The Court views the evidence in the light most

favorable to the non-moving party and draws any reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.

56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc).

IV. DISCUSSION

For the following reasons, Plaintiff’s claims for (1) Family

and Medical Leave Act (“FMLA”) retaliatory discharge, (2)

disability discrimination under the West Virginia Human Rights

Act, and (3) retaliatory discharge in violation of a substantial

public policy do not the survive summary judgment challenge and

Defendant’s motion is GRANTED.

A. FMLA Retaliatory Discharge

Defendant’s Motion for Summary Judgment as to Count One is

granted because Plaintiff failed to show the City’s proffered

reason for discharge was pretext for FMLA retaliation. “FMLA

entitles eligible employees to take ‘12 workweeks of leave’ during

a 12-month period for a qualifying ‘serious health condition that

makes the employee unable to perform the functions of’ [her] job.”

Adkins v. CSX Transp., Inc., 70 F.4th 785, 795 (4th Cir. 2023)

(quoting 29 U.S.C. § 2612(A)(1)(D)). “Under 29 U.S.C. § 2615(a)(2),

employers may not retaliate against employees for exercising

rights under the FMLA.” Cumpston, 2018 WL 4855216, at *3 (Dotson

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

An FMLA plaintiff claiming retaliation must make a prima facie

case showing that (1) “[s]he engaged in protected activity”; (2)

“that the employer took adverse action against [her]”; and (3)

“that the adverse action was causally connected to the plaintiff's

protected activity.” Vannoy v. Fed. Rsrv. 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)).

Under the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the burden then shifts to the

defendant to provide “a legitimate, nonretaliatory reason for

taking the employment action at issue.” Hannah P. v. Coats, 916

F.3d 327, 347 (4th Cir. 2019). “The FMLA does not prevent an

employer from terminating an employee for poor performance,

misconduct, or insubordinate behavior.” Vannoy, 827 F.3d at 304-

05 (finding the employee’s misconduct, failure to communicate

regarding absences, and failure to complete a portion of his

performance improvement plan qualified as legitimate, non-

discriminatory reasons for terminating plaintiff). The Court need

not decide whether an employer’s discharging an employee was “wise,

fair, or correct” and does not “sit as a kind of super-personnel

department weighing the prudence of employment decisions made by

firms charged with employment discrimination.” Feldman v. L. Enf't

Assocs. Corp., 752 F.3d 339, 350 (4th Cir. 2014).

“Once the plaintiff proffers evidence establishing [her]

prima facie case, and the employer offers a non-retaliatory reason

of the adverse action, the plaintiff ‘bears the burden of

establishing that the employer's proffered explanation is pretext

for FMLA retaliation.’” Vannoy, 827 F.3d at 304. “To do so, [the

plaintiff] must offer evidence that tends to show that the

defendant[‘s] explanation is not credible, or that retaliation is

the most likely explanation.” Cumpston, 2018 WL 4855216, at *4

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

147 (2000)). “[A] plaintiff's own assertions of discrimination in

and of themselves are insufficient to counter substantial evidence

of legitimate non-discriminatory reasons for a discharge.” Dockins

v. Benchmark Commc'ns, 176 F.3d 745, 749 (4th Cir. 1999).

“Accordingly, to survive summary judgment on an FMLA retaliation

claim, ‘the plaintiff 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., retaliation.’” Waag v. Sotera

Def. Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (Sharif v.

United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016)).

Defendant first argues that there is no evidence that

Spatafore’s discharge was causally connected to her FMLA use

because her FMLA leave was approved, and the City assisted

Plaintiff in soliciting donated paid leave time from other

employees. ECF No. 24 at p. 13. Furthermore, the City permitted

Plaintiff to take longer lunch breaks and work later in the day to

accommodate her therapy attendance. Id. Second, Defendant asserts

the actual reason for Plaintiff’s discharge was her violation of

the City’s grievance policy and posting the December 2021 internal

memorandum on Facebook twice. Id. at p. 14.

Plaintiff in contrast asserts that she has established a prima

facie case of FMLA retaliatory discharge. ECF No. 44 at p. 9.

Plaintiff claims that to survive summary judgment all she must

show is that her FMLA leave was a motivating factor in her

discharge. Id. Plaintiff asserts she has created “inferences of

discrimination” and that the case must go to the jury, even if

Defendant has set forth a non-discriminatory reason. Id. at p. 10.

Plaintiff’s claimed inference of discrimination is the “proximity

in time between when Plaintiff applied for and received FMLA leave

and the adverse employment actions taken.” Id. at p. 11. Plaintiff

further claims that the City’s cited reasons for terminating

Plaintiff are pretextual and that there is evidence of disparate

treatment. Id. at pp. 13-14.

Here, the Court agrees that Plaintiff’s claim for FMLA

retaliation fails. The Court assumes without deciding that

Plaintiff made a prima facie case of retaliation. Nonetheless,

Plaintiff’s claim fails because the City provided evidence of a

legitimate, nonretaliatory reason for taking the employment action

and Spatafore failed to proffer any evidence that the City’s reason

was mere pretext.

Under the McDonnell-Douglas burden shifting framework,

Defendant provided sufficient evidence to support that Plaintiff

was discharged lawfully. The undisputed record shows that

Plaintiff posted an internal memorandum on Facebook twice, along

with comments, and ignored the grievance procedure when she went

above her direct supervisor to contact the Mayor and City Council

to complain about the Covid-19 leave policy. Moreover, the record

shows that Plaintiff had received verbal warnings for taking

extended lunches and failing to follow leave procedures – all

before she took FMLA leave. The City is well within its right to

discharge an employee for poor performance, misconduct, and

insubordinate behavior. The conduct presented in the record falls

within this category.

Moreover, Plaintiff’s proximity argument is not persuasive or

sufficient to establish the City’s reason for discharge was

pretextual. As Defendant points out in its reply, temporal

proximity must be “very close” in adverse employment actions.

Kinsley v. W. Virginia Univ. Alumni Ass'n, Inc., 2020 WL 13698876,

at *3 (N.D.W. Va. Mar. 16, 2020) (finding a three-month lapse

between FMLA leave approval and application for promotion

insufficient); Clark County School Dist. v. Breeden, 532 U.S. 268,

273 (2001) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th

Cir. 1997) (finding a 3-month period insufficient)). Here,

Plaintiff was approved for FMLA leave in July 2021 and returned to

work in September 2021. Plaintiff was not discharged until December

2021. Thus, there was approximately five months between her FMLA

request and her discharge, and approximately a three-month lapse

between her return to work and her discharge. Thus, the timing

does not indicate an inference of discrimination and is

insufficient to overcome the City’s legitimate, non-discriminatory

reason.

Furthermore, Plaintiff’s alleged comparator evidence is

insufficient because the claimed comparators are not similarly

situated. To plausibly use comparators as evidence of pretext, the

Plaintiff must provide “evidence that other employees who were

similarly situated to the plaintiff (but for the protected

characteristic) were treated more favorably.” Cowgill v. First

Data Techs., Inc., 41 F.4th 370, 381 (4th Cir. 2022) (quoting Laing

v. Federal Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013)). When

evaluating whether another employee qualifies as a proper

comparator, a court considers whether they “dealt with the same

supervisor, [were] subject to the same standards and[,] . . .

engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or

the employer's treatment of them for it.” Id. (quoting Haywood v.

Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (per curium)).

While Plaintiff provides information regarding other

employees who were not discharged for their alleged misconduct,

none are sufficiently similar to Plaintiff to serve as a

comparator. The record shows that the claimed comparators were

union employees subject to collective bargaining agreements or

police officers subject to the Civil Service Commission. Aff.

Tiffany Fell, Def. Ex. M, Def. Reply, ECF No. 59. Thus, these

employees did not have the same supervisor and were not subject to

the same standards as Plaintiff. Moreover, by Plaintiff’s own

admission, these employees did not engage in the same conduct as

her. ECF No. 44 at p. 14 (“there are at least seven other employees

of Defendant who committed much more serious violations of

policies) (emphasis added). Thus, Plaintiff cannot rely on a

comparator argument to establish pretext.

Accordingly, Defendant’s Motion for Summary Judgment [ECF No.

23] as to the FMLA retaliation claim is GRANTED and Count 1 of

Plaintiff’s Complaint [ECF No. 1-3] is DISMISSED.

B. WVHRA Disability Discrimination

Defendant’s Motion for Summary Judgment as to Count Two is

granted because there is no competent evidence that Plaintiff’s

discharge was unlawful. To succeed on a claim for disability

discrimination, a plaintiff must establish she is “a member of a

protected class,” “that the employer made an adverse decision

concerning the plaintiff,” and “but for the plaintiff’s protected

status, the adverse decision would not have been made.” Woods v.

Jefferds Corp., 824 S.E.2d 539, 547 (W. Va. 2019).

The West Virginia Human Rights Act (“WVHRA”) states

[i]t shall be an unlawful discriminatory

practice, unless based upon a bona fide

occupational qualification, . . . for any

employer to discriminate against an individual

with respect to compensation, hire, tenure,

conditions or privileges of employment if the

individual is able and competent to perform

the services required even if such individual

is . . . disabled.

W. Va. Code Ann. § 5-11-9(1). The WVHRA defines “disability” as “a

mental or physical impairment which substantially limits one or

more of such person’s major life activities,” “[a] record of such

impairment,” or [b]eing regarded as having such an impairment.” W.

Va. Code § 5-11-3(m). “Major life activities” are “caring for one’s

self,” and other functions such as “walking, seeing, hearing,

speaking, breathing, learning, and working[.]” Id. § 5-11-3(m)(1).

“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.” Cumpston, 2018 WL

4855216, at *6. To set forth a prima facie case of impermissible

employment discrimination under the WVHRA, Spatafore must

establish: (1) that she is a member of a protected class; (2) that

the employer made an adverse employment decision affecting her;

and (3) that, but for her protected status, the employer would not

have made the adverse decision. Id. (citing Syl. Pt. 3, Conaway v.

E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986)). To

satisfy the causation element of the prima facie case, the

plaintiff must “show some evidence which would sufficiently link

the employer's decision and [her] 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.

(citing Conaway, 358 S.E.2d at 429-30).

Once a plaintiff establishes a prima facie case of employment

discrimination, the burden shifts to the defendant to advance a

non-discriminatory reason for the plaintiff’s dismissal. Conaway,

358 S.E.2d at 430. Importantly, the employer’s reason “need not be

a particularly good one.. . .The reason can be any other reason

except that the plaintiff was a member of a protected class.” Id.

Evidence of a legitimate and nondiscriminatory reason for the

dismissal is sufficient to rebut the employee’s prima facie

showing. Ford Motor Credit Co. v. W. Virginia Hum. Rts. Comm'n,

696 S.E.2d 282 (W. Va. 2010). The burden then returns to the

plaintiff to prove “that the facially legitimate reason given by

the employer for the employment decision was merely a pretext for

a discriminatory motive.” Cumpston, 2018 WL 4855216, at *6. “In

other words, ‘[t]o get to the jury, [the plaintiff] must offer

sufficient evidence that the [defendant’s] explanation was

pretextual to create an issue of fact.’” Id. (quoting Skaggs v.

Elk Run Coal Co., Inc., 479 S.E.2d 561, 583 (W. Va. 1996)).

Here, Defendant asserts that Plaintiff’s claim fails because

Plaintiff’s medical conditions did not prevent her from performing

her job duties and she was discharged for non-discriminatory

reasons. ECF No. 24 at p. 14. First, Defendant claims Plaintiff

cannot establish that she suffered from a disability because she

was able to perform all her job’s functions. Id. at p. 15 (citing

Dickerson v. W Virginia State Treasurer's Off, 2020 WL 4354929, at

*4 (W. Va. July 30, 2020). Second, Defendant asserts that Plaintiff

did not offer any evidence to support that she was terminated

because of a disability. Id. at pp. 15-16.

In support of Plaintiff’s disability discrimination claim,

she asserts that it is undisputed that she has Crohn’s disease and

suffers from an eating disorder. ECF No. 44 at p. 17. She further

states that these conditions substantially limited her from

working because she missed six weeks of work while in a

rehabilitation program. Id. at p. 18. Plaintiff further asserts

that there was a record of her impairment because the City approved

her FMLA leave. Id. at p. 19. Additionally, Plaintiff states that

her disability discrimination claim does not require her to have

sought an accommodation upon returning to work following the

rehabilitation program. Id. at p. 20.

Furthermore, Plaintiff relies upon the time proximity to

support the causation element. Id. She also claims the proffered

discharge reason was pretextual because City staff discussed her

FMLA leave when deciding to terminate her employment. Id. at pp.

20-21.

Plaintiff’s disability discrimination claim cannot survive

summary judgment because Plaintiff failed to create a dispute of

material fact over whether her discharge was unlawful. The

disability discrimination claim fails for many of the same reasons

as the FMLA retaliation claim. First, the Court assumes without

deciding that Plaintiff’s eating disorder and Crohn’s disease

qualify as disabilities under the WVHRA. Thus, the Court assumes

Plaintiff is a member of a protected class. Furthermore, there is

no dispute that Plaintiff suffered an adverse employment action

when she was discharged in December 2021. Thus, the issue is

whether Plaintiff would have not been discharged, but for her

claimed disability.

As with the FMLA claim, Plaintiff relies upon temporal

proximity to support the causation element and to support pretext.

Even assuming that the proximity argument would be sufficient to

create the inference of discrimination for Plaintiff’s prima facie

case, the record does not contain sufficient evidence to support

that the termination was unlawful.

Defendant set forth evidence of its legitimate reasons for

discharging Plaintiff - insubordination, insolence, and

unsolicited distribution of internal documents. The complained-of

misconduct took place after Plaintiff returned from her FMLA leave

and serves as intervening misconduct to cut off any presumption

that her discharge was related to her claimed disabilities. The

record supports that the City was supportive of Plaintiff’s

rehabilitation efforts by promptly approving her FMLA leave,

coordinating paid leave donations, and accommodating Plaintiff’s

work schedule to allow periodic therapy appointments.

Moreover, Plaintiff does not dispute that she engaged in the

very misconduct underlying her discharge. The City is not obligated

to refrain from discharging an insubordinate or insolent employee

simply because she has a disability.2 And, as with the FMLA

retaliation claim, Plaintiff’s temporal proximity argument is

insufficient to create a dispute of fact for the jury. Plaintiff’s

discharge took place close-in-time to the Facebook posts and the

email to the Mayor and City Council. Thus, the proximity counts

against Plaintiff’s position.

Accordingly, Plaintiff’s claim for disability discrimination

fails because there is no dispute of fact that she was discharged

for legitimate, non-discriminatory reasons. Thus, Defendant’s

Motion for Summary Judgment [ECF No. 23] is GRANTED as to the

disability discrimination claim and Count Two of Plaintiff’s

Complaint [ECF No. 1-3] is DISMISSED.

C. Harless Retaliatory Discharge

Defendant’s Motion for Summary Judgment as to Count Three is

granted because Plaintiff’s Facebook postings are not protected

speech. Plaintiff’s third cause of action alleges that she was

terminated in violation of a substantial public policy of the state

of West Virginia.

2 The Court is unpersuaded by Plaintiff’s argument that her discharge

was discriminatory because the City discussed her health conditions and

FMLA leave when planning her discharge. It is entirely reasonable for

an employer to consider potential liabilities with legal counsel when

making employment decisions. The record makes clear that Plaintiff’s

Crohn’s disease, eating disorder, or FMLA leave were not a basis for her

discharge. See Def. Ex. T, ECF No. 24-1 (“We are still moving forward

with termination of Dominique Medina based upon her contact with

council/Justine Marino. Further adding fuel to the decision are the FB

posts.”).

The rule that an employer has an absolute

right to discharge an at will employee must be

tempered by the principle that where the

employer’s motivation for the discharge is to

contravene some substantial public policy

principle, then the employer may be liable to

the employee for damages occasioned by this

discharge.

Syl., Harless v. First Nat’l Bank of Fairmont, 246 S.E.2d 270 (W.

Va. 1978). To succeed on a Harless retaliatory discharge, a

plaintiff must prove: (1) “[t]hat a clear public policy existed

and was manifested in a state or federal constitution, statute or

administrative regulation, or in the common law”; (2) “[t]hat

dismissing employees under circumstances like those involved in

the plaintiff’s dismissal would jeopardize the public policy”; (3)

“[t]he plaintiff’s dismissal was motivated by conduct related to

the public policy”; and (4) “[t]he employer lacked overriding

legitimate business justification for the dismissal.” Burke v.

Wetzel Cnty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018). “The

determination whether a substantial public policy exists is a

question of law for the court.” Frohnapfel v. ArcelorMittal Weirton

LLC, 100 F. Supp. 3d 556, 562–63 (N.D.W. Va. 2015)

When an employee makes a prima facie case of

discrimination, the burden then shifts to the

employer to prove a legitimate, nonpretextual,

and nonretaliatory reason for the discharge.

In rebuttal, the employee can then offer

evidence that the employer’s proffered reason

for the discharge is merely a pretext for the

discriminatory act.

Syl. Pt. 4, Birthisel v. Tri-Cities Health Servs. Corp., 424 S.E.2d

606 (W. Va. 1992) (internal citation omitted).

Specifically, Plaintiff claims that her discharge was in

retaliation for making comments relating to an issue of public

concern in violation of the West Virginia Constitution. ECF No. 1-

3 at ¶ 46. Article III, Section 7 of the West Virginia Constitution

provides:

No law abridging the freedom of speech, or of

the press, shall be passed; but the

Legislature may, by suitable penalties,

restrain the publication or sale of obscene

books, papers, or pictures, and provide for

the punishment of libel, and defamation of

character, and for the recovery, in civil

actions, by the aggrieved party, of suitable

damages for such libel, or defamation.

W. Va. Const. art. III, § 7. Because the First Amendment of the

United States Constitution and the State Constitution are

“virtually identical in pertinent parts,” cases interpreting the

freedom of speech protections are considered interchangeably.

State By & Through McGraw v. Imperial Mktg., 472 S.E.2d 792, 805

n.43 (W. Va. 1996).

Under Pickering v. Board of Education, 391

U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811

(1968), public employees are entitled to be

protected from firings, demotions and other

adverse employment consequences resulting

from the exercise of their free speech rights,

as well as other First Amendment rights.

However, Pickering recognized that the State,

as an employer, also has an interest in the

efficient and orderly operation of its affairs

that must be balanced with the public

employees' right to free speech, which is not

absolute.

Syl. Pt. 4, Alderman v. Pocahontas Cnty. Bd. of Educ., 675 S.E.2d

907, 910 (W. Va. 2009); Syl. Pt. 3, Orr v. Crowder, 173 335, 315

S.E.2d 593 (W.Va. 1983).

There are some general restrictions on a public employee’s

right to free speech. Id. at 917.

First, an employee's speech, to be protected,

must be spoken as a citizen on a matter of

public concern.. . .The second factor that is

invoked considers statements that are made

with the knowledge that they were false or

with reckless disregard of whether they were

false, and such statements are not protected.

The third factor that is invoked considers

statements made about persons with whom there

are close personal contacts that would disrupt

discipline or harmony among coworkers or

destroy personal loyalty and confidence, and

such statements may not be protected.

Id. at Syl. Pt. 5 in part. “If the employee did not speak as a

citizen on a matter of public concern, then the employee has no

First Amendment cause of action based on the employer's reaction

to the speech.” Id. The public employee bears the burden “to show

that conduct is constitutionally protected and, further, that this

conduct was a substantial or motivating factor in the employment

decision.” Id. at Syl. Pt. 6 in part. If the public employee meets

this burden, the public employer then “must show by a preponderance

of the evidence that it would have reached the same decision. . .

in the absence of the protected conduct.” Id.

“Speech involves a matter of public concern if it affects the

social, political, or general well-being of a community.” Bloom v.

Bd. of Educ. of Monongalia Cnty., 2013 WL 5966398, at *3 (N.D.W.

Va. Nov. 8, 2013) (quoting Edwards v. City of Goldsboro, 178 F.3d

231, 246 (4th Cir. 1999)). However, “[p]ersonal grievances,

complaints about conditions of employment, or expressions about

other matters of personal interest do not constitute speech about

matters of public concern that are protected by the First

Amendment.” Id. “In deciding whether certain speech falls on the

‘public concern’ or ‘purely personal’ side of the line, we

naturally look to the ‘content, context, and form of the speech at

issue in light of the entire record.’” Carey v. Throwe, 957 F.3d

468, 475 (4th Cir. 2020) (internal citations omitted).

Here, Defendant argues that Plaintiff’s Harless claim fails

for several reasons. No. 24 at p. 18. First, the City contends

Spatafore was not speaking as a private citizen on a matter of

public concern when she commented on the Facebook posts because

she identified herself as a City employee in the post comment and

on her Facebook profile. Id. at pp. 18-19. Furthermore, the

Handbook provides a social media policy for employees which states:

An employee who identifies on a social media

account the employee's affiliation with the

City, and does not disclaim speaking on behalf

of the City in the social media profile or in

a specific post, will be deemed to be using

social media as a City employee.

. . .

City employees must make it clear when they

are speaking for themselves and not on behalf

of the City. If employees publish content on

any website outside of City control and it has

something to do with the work they do or

subjects associated with the City, use a

disclaimer such as this: "The postings on this

site are my own and don't necessarily

represent the City's positions or opinions.

Def. Ex. J at 109-110, ECF No. 24-1. Defendant additionally states

that the internal memorandum Plaintiff posted was not a matter of

public concern. ECF No. 24 at p. 20.

Second, Defendant argues Plaintiff’s posts are not

constitutionally protected because the posts were false. Id.

Specifically, Plaintiff posted that City employees would be

working Christmas Eve, even though the employees were already

scheduled to be off on December 24, 2021. Id. And third, Defendant

claims that Plaintiff’s posts are not protected because they

involve persons with close personal contacts which could disrupt

the discipline and harmony for City employees. Id. at p. 21. For

example, Defendant argues that Plaintiff’s claim that the City

Manager does not follow the Governor’s directives indicates that

Mr. Faulk acted wrongfully, when he did not. Id.

Plaintiff, in contrast, asserts that when considering the

content, form, and context of her speech, she was speaking as a

private citizen on a matter of public concern. ECF No. 44 at p.

24. First, Plaintiff claims she was speaking as a private citizen

because she made the posting from home on her personal Facebook

account, while she was not working. Id. Second, Plaintiff argues

the matter of public concern she was speaking on was whether City

Hall would be open during the holidays. Id. at p. 27. Third,

Plaintiff argues that that there is no evidence that Plaintiff’s

speech disrupted the City’s operations. Id. at p. 31. Finally,

Plaintiff asserts that her discharge was caused by the exercise of

her free speech rights based on the timing and the City’s proffered

reasons for termination. Id. at p. 31.

Here, Plaintiff’s Harless claim fails because she was not

speaking as a private citizen on a matter of public concern. First,

the West Virginia Constitution and its free speech protections

constitute a substantial public policy to support a Harless claim.

However, the record demonstrates that Plaintiff’s speech at issue

was not protected – considering the content, form, and context.

First, Plaintiff was not speaking as a private citizen.

Plaintiff identified herself as a seven-year employee of the City

in the Facebook comment on December 13, 2021. Furthermore, she

would not have possessed the internal memorandum clarifying the

Governor’s Order but for her employment with the City, and thus

could not have posted it if she was not an employee. Moreover,

Plaintiff’s comments did not include any of the disclaimers

required of a City employee posting on Facebook as an identified

employee. Spatafore did not make it clear that she was speaking

for herself and not behalf of the City when discussing topics

related to work and the City. Plaintiff was provided with the

social media policy and expected to follow its policies. Thus,

Plaintiff was not speaking as a private citizen.

Second, despite Plaintiff’s characterization of the Facebook

comments, they did not relate to issues of public concern. The

purpose of the Facebook comments was not to discuss whether City

Hall was going to be open on Christmas Eve and New Year’s Eve. The

December 13, 2021 comment discussed City employee pay raises and

bonuses, the ways in which City employees are appreciated, and

allegations that employees would need to work on Christmas Eve and

New Year’s Eve. Whether City Hall is open on a given day and

whether employees are required to work on a certain day are not

the same topics. Plaintiff was clearly not making the comment to

inform citizens on when City Hall and its services would be

available. No, Plaintiff was lamenting how she, as an employee,

felt unappreciated because she did not receive Christmas Eve as a

holiday from work. The same is true of Plaintiff’s December 16,

2021 Facebook comment. The City’s Facebook post itself informed

citizens that City Hall would be closed on December 24, 2021 and

December 27, 2021. Plaintiff’s comment, however, only related to

the matter of when employees would be working. Employee schedules

are not a matter of public concern.

While these findings are enough to show that Plaintiff’s

Harless claim fails, the Court also notes that Spatafore’s comments

are additionally not protected because they were made with, at

least, a reckless disregard of their falsity. City employees did

not work on December 24, 2021, but Plaintiff’s Facebook comments

indicated that employees would be working Christmas Eve. Rather,

Plaintiff wanted the City to give employees an additional paid day

off in recognition of Christmas Eve on December 23, 2021.

Furthermore, it cannot be legitimately argued that Spatafore’s

comments regarding City employee pay, working hours, and

appreciation could not disrupt operations of the City or lead to

employee conflict.

When looking at the content, form, and context of Plaintiff’s

Facebook comments, none of Plaintiff’s statements related to

matters of a public concern to warrant protection. Rather,

Plaintiff expressed her personal grievances and complaints about

conditions of her employment online. Thus, the speech was not

protected and served as a lawful basis for Plaintiff’s termination.

Accordingly, Defendant’s Motion for Summary Judgment [ECF No. 23]

as to Count Three is GRANTED and Count Three of Plaintiff’s

Complaint [ECF No. 1-3] is DISMISSED.

Vv. CONCLUSION

For the foregoing reasons, Defendant, City of Clarksburg’s

Motion for Summary Judgment [ECF No. 23] is GRANTED and Plaintiff’s

Complaint [ECF No. 1-3] is DISMISSED WITH PREJUDICE. Additionally,

all other pending motions are hereby DENIED AS MOOT [ECF Nos. 61,

62, 70].

This action is thus STRICKEN from the Court’s active docket

and the Clerk is DIRECTED to enter judgment in favor of the City

of Clarksburg.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record by the CM/ECF system.

DATED: September 23, 2024

Ton 3 Klat-

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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