The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TERRI J. PRICE,
Plaintiff,
v. Civil Action No. 2:16-cv-1529
REGION 4 PLANNING AND DEVELOPMENT
COUNCIL, and JOHN F. TUGGLE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are cross motions for summary judgment filed
by the parties on May 5, 2017. Also pending is the plaintiff’s
Supplemental Motion for Summary Judgment, filed December 5,
2018, for which plaintiff’s motion to leave was not filed until
January 2, 2019; and to all of which the defendants have
responded, and which will be addressed in a companion order.
I. Background
The defendant, Region 4 Planning and Development
Council (“Region 4”), is a quasi-governmental agency that
coordinates planning and economic development for the counties
of Fayette, Greenbrier, Nicholas, Pocahontas, and Webster. On
December 10, 2001, defendant hired the plaintiff, Terri Price
(“Price”), as Fiscal Manager at a salary of $35,000. Defs.’
Mot. Summ. J., Ex. A. On July 1, 2006, Price was promoted from
Fiscal Manager to Fiscal Manager/Assistant Executive Director.
Defs.’ Mot. Summ. J., Ex. B. At the time of her discharge on
January 30, 2015, Price’s salary had increased to more than
$85,000. Pl.’s Mot. Summ. J. 1. She was the second highest
paid employee at Region 4. Defs.’ Mot. Summ. J. 1.
As Fiscal Manager/Assistant Executive Director for
Region 4, the plaintiff was responsible for staff leadership,
personnel administration, budget preparation, collaboration with
the Executive Director, establishing staff priorities and
deadlines, accounts payable, regulatory compliance, knowledge of
policy and procedure, administration of project-related duties
and tasks, management of personnel operations, auditor
collaboration, overseeing financial requirements, and
leadership. Defs.’ Mot. Summ. J., Ex. F. Price’s deposition
confirms that she administered the payroll, handled employee
benefits relating to health, pension and insurance, kept
financial records for the agency, and administered Region 4’s
budget. Defs.’ Reply 3, Ex. F at 283-84.
Price claims she was subjected to sexual comments made
by former Executive Director of Region 4, W.D. Smith, during her
years of employment with the agency. From 2012 to 2014, Price
made over 150 secret recordings of conversations that took place
in her office. Those recordings reveal that on April 19, 2012,
Smith notified Price of a rape that may have occurred in the
office and recounted a joke he made to an individual while
conversing about the topic, in which he laughingly told that
person: “I thought I was the only listed sex offender.” Pl.’s
Mot. Summ. J., Ex 1. During a private meeting four days later
on April 23, 2012, Smith told Price that he was “sitting here
looking at you, pretending like you don’t have any clothes on,
how’s that for sexual harassment?” Id. Price responded: “Oh,
God.” Id. Then Smith complimented Price on her “beautiful
eyes.” Id. She mumbled “thank you” and changed the subject.
Id.
The recordings further evidence that on June 25, 2012,
Smith used the phrase that individuals have a “hard on” for
their home town because “their town is just as important to
them, more important.” Id. On June 26, 2012, during a
conversation between Price, Smith, and another male employee,
Smith jokingly stated: “He’s [male employee] got . . . [female
employee from Region 1] in a hotel right now” and that this was
her “big fling before she leaves Region 1.” Id. Price
responded: “He’s just nasty this morning,” and Smith responded:
“I am, I’m a dirty old man this morning, worse than normal.”
Id. During the same conversation, Smith told a “joke about a
man’s penis.” Id. The three individuals, including Price,
laughed at the joke. Id. Lastly, on August 1, 2013, Smith told
Price that “all women are” “crazy bitches.” Id. These
incidents, all attributable to Smith, seem to comprise the
sexual comments to which Price was subjected at Region 4.
While working for the defendant, Price never
complained of Smith’s conduct to the Executive Committee or any
other employee at Region 4 until nearly a year after Smith was
replaced when on September 8, 2014, her attorney wrote a letter
to the Region 4 Chairman that set forth her grievances. See
infra pp. 6, 12. Though she claims to have become increasingly
concerned about being alone with Smith, she says she feared that
retaliation would result from voicing a complaint. Pl.’s Mot.
Summ. J., Ex. 2 at 160; 154:10-11.
The plaintiff claims she began recording conversations
on her computer in her office after Smith mentioned in January
2010 that he was “ready for his big raise,” though she did not
begin these recordings until March 2012. Pl.’s Mot. Summ. J.,
Ex. 2. He planned to retire in three years, in 2013, and a
raise would serve to increase his monthly retirement payments.
Pl.’s Mot. Summ. J., Ex. 3 at 27-29. Price testified that she
understood this as a request to “effectively ‘bury’ the increase
in the upcoming budget rather than show it as an increase in his
salary.” Pl.’s Mot. Summ. J. 3, Ex. 2 at 33. According to the
plaintiff, she refused his request because she thought it was
unethical and unlawful. Id. at 34. Subsequently, Price feared
losing her job and her benefits; she claimed to have been
“instantly afraid” after he, according to the plaintiff,
responded by stating: “Blood’s thicker than water” once she
denied his request. Defs.’ Mot. Summ. J., Ex. D at 87:11-24.
Price understood this statement to be “a threat.” Id. at 88:1.
Smith’s longtime support for Price to succeed him indicates that
her fear was unwarranted.
Prior to Smith’s retirement, he had mentioned to Price
that she would be a good replacement for him as Executive
Director. Defendants reference an email in contending that
Smith “began grooming” Price to succeed him in March 2009.
Defs.’ Mot. Summ. J. 4, Ex. J. In that email, Price stated
that Smith told her she “needed [] to figure out a way [] to
start traveling more to attend meetings on these projects and
still be able to keep up with [her] current paper work. He
[was] needing [her] to learn more about the projects for when
[she] becomes Executive Director.” Id. She stated: “I know he
is correct, but I am just not sure how I am going to be able to
do it all.” Id.
However, plaintiff claims that, beginning in around
March 2012, Smith “refused to allow project calls to be directed
to her.” Pl.’s Mot. Summ. J. 4, Ex. 1. He apparently “refused
to give his contacts Price’s phone number, and continued to
maintain his R[egion] 4 issued mobile phone.” Pl.’s Mot. Summ.
J. 4, Ex. 3 at 79, 80-81. In light of this, the plaintiff
claims Smith was “actively preventing [her] from making the
transition,” but that her workload also prevented her from
accompanying Smith to meetings and visiting projects. Pl.’s
Mot. Summ. J. 4.
Smith announced his retirement to the Executive
Committee on March 20, 2013 and recommended that Price replace
him. Pl.’s Mot. Summ. J. 4; Defs.’ Mot. Summ. J. 4. The
Executive Committee approved her appointment as the new
Executive Director, effective November 1, 2013. Pl.’s Mot.
Summ. J. 4. Plaintiff's appointment was ratified by the
Executive Committee on April 17, 2013. Defs.’ Mot. Summ. J. 4,
Ex. L, at 3. Eleven days later, on April 28, 2013, Price
expressed frustrations with her new transitional position in an
email to a coworker, stating:
Now that I have been appointed director, I have more
of an up hill battle of trying to motivate a burnt out
staff and trying to do this with a burnt out director
still messing shit up his last 6 months at work. I
have told him, please just go in your office and sit
for 6 months and we will find him if we need him. But
oh no, he insists he is working until his last day.
Today alone, he cause[d] 3 major screw ups! If I
could get my foot in the door someplace else I would
bail on this whole director position. So not worth
the headache.
Defs.’ Mot. Summ. J. at Ex. M. On or just prior to June 18,
2013, Price met with Smith to discuss the proposed budget for
the 2013-2014 fiscal year, which plaintiff was to present to the
Budget committee the following day. Pl.’s Mot. Summ. J. 4;
Defs.’ Mot. Summ. J. 5. During this conversation, the plaintiff
told Smith she believed Region 4’s employee handbook was
“outdated” and a “huge liability” with particular respect to its
overtime policy. Defs.’ Mot. Summ. J. 5, Ex. N. The following
exchange occurred as follows:
Smith: Well, it [Employee Handbook Revision] does
need to be done, but let me say this. Larry
Bradford went 13 years living under that
risk. Tim Oxley went 5 years living under
that risk. I went 21 years living under
that risk.
Smith: It’s just the way – it’s just the way this
agency has operated since its inception and
never paid a penny of overtime, and never
had a comp time policy, and it’s improper,
but it’s how it has operated. It’s not
right, but it’s worked. And it’s hard to
budget and -
Price: Well, I think we’re just going to have to do
like – you know, it’s like everything else,
like the government, whether it’s state,
local, federal. You’re just going to have
to budget so much, and then it’s like, okay,
once it’s done, then it’s done.
Defs.’ Mot. Summ. J., Ex. N at 16. Price also informed him that
she included $50,000 in the budget to cover either overtime
payments or hiring additional staff to avoid paying overtime.
Pl.’s Mot. Summ. J. 5. She also included a $15,000 “line-item”
for “contract services” for legal counsel to update the employee
handbook. Defs.’ Mot. Summ. J. 5, Ex. D at 196.
The Budget committee approved the plaintiff’s proposed
budget at the meeting on June 19, 2013, and the Executive
Committee approved it at an Executive Committee meeting later
that evening. Defs.’ Mot. Summ. J. 5. However, Price claims
the meeting was “highly confrontational” towards her, in that at
least one of the committee members asked her about her salary.
Pl.’s Mot. Summ. J. 5. She also contends she was “accused” by
Budget committee members “of a serious conflict of interest in
‘trying to set her own salary,’” and that Smith did not defend
her “despite being the one who told her what salary to use.”
Pl.’s Mot. Summ. J. 5. The plaintiff makes no citation to the
record in support of these claims.
By contrast, the defendants claim that at this
meeting, someone asked a question about a “line item” that Price
“had a little trouble answering,” which "led to another question
or two." Defs.’ Mot. Summ. J. 5, Ex. G at 30. Insofar as the
Executive Committee meeting was scheduled that same evening to
approve the budget, time was “of the essence” and Smith asked
the Budget committee to give Price "time to reflect" and answer
the question at a later date. Id. at 31. In any case, Mr.
Smith testified that ultimately, "everything was in order" with
the plaintiff's budget. Id.
Plaintiff claims the Executive Committee “placed
numerous restrictions on [her] ascension to Executive Director”
inasmuch as she “was required to continue to perform all of her
work as Fiscal Manager,” “recruit a candidate to replace her,
train an accounting assistant, and transition into Smith’s role
during the final 30 days of his employment.” Pl.’s Mot. Summ.
J. 5. On July 1, 2013, the plaintiff resigned from her
promotion to Executive Director, effective November 1, 2013, and
chose to remain Fiscal Manager/Assistant Executive Director.
Pl.’s Mot. Summ. J. 6; Defs.’ Mot. Summ. J. 7. The Executive
Committee accepted plaintiff's resignation on July 8, 2013 and
Region 4 hired John Tuggle, effective October 1, 2013, as her
replacement.
On October 13, 2013, Price, Smith, and one other
employee discussed changes that were soon to take place in light
of Tuggle’s new leadership. Price expressed her concern with
Tuggle’s mandate, that all employees work five days per week, as
she typically performed her forty-hour workweek in three or four
days per week on average, and had been working a non-traditional
workweek for a longer period of time than other Region 4
employees. Pl.’s Mot. Summ. J. Ex. 1. Smith assured her,
however, that “[i]t’s not hurting anybody” and that everyone
will “get paid the same.” Id. He explained that this new
policy made sense, insofar as it would ensure that all staff
were present while Tuggle became acclimated with the agency.
Id. He went on to say: “I think the good part of this is, it’s
[the current schedule permitting three to four-day workweeks]
only been in place for three or four months. It’s not like it’s
engrained.” Id. He further stated, “I know that you’ve [Price]
been doing it longer,” and that the new policy thus “hurts you
maybe personally more than them, but you’re part of the
management team.” Id. The other male employee present added:
“It’s technically not fair to people who work more than five
days.” Id. “What if everybody worked a three-day week? What
would we do?” Id.
On January 7, 2014, Price met with Tuggle to ask him
about a “salary range” that she believed he wrongfully
established for her. Pl.’s Mot. Summ. J., Ex. 1. The court
notes that the parameters of the “salary range” are not
specified. At this point, Price’s salary had increased some
$50,000 over a thirteen year period - from $35,000 in December
2001, to $85,315 in January 2012 where it remained. Price
inquired as to why she apparently exceeded her “range” in light
of the fact that other employees received a salary raise while
she did not. Id. Tuggle apologized, stating that he “shouldn’t
have said that,” and clarified what he meant by “range” was
that, “as of [then],” she “[was] at the end of her range,” and
for her current position, the salary was appropriate. He stated
that, however, after “a year and a half,” her salary could be
reevaluated for another raise. Id. Price continued to argue
with Tuggle about the “range” he allegedly established for her
pay.1 Id.
Eight months later, on September 5, 2014, Price sought
medical leave for a “chronic medical condition” and requested
that Region 4 provide her with “any forms or documents which
need to be completed in order for [her] to request Family and
Medical Leave, or any other applicable medical leave, under the
Region 4 Planning & Development Council’s policies.” Defs.’
1 The plaintiff accuses Tuggle of placing a “cap” on her salary
throughout her motion for summary judgment. In light of the
record, however, this word was never used by Tuggle or anyone
else at Region 4. Pl.’s Mot. Summ. J. at Ex. 1.
Mot. Summ. J., Ex. P. She claimed to be suffering from severe
emotional distress due to the alleged “retaliatory actions of
Tuggle and R4.” Pl.’s Mot. Summ. J. 7. It was at this point
that Price’s attorney, P. Rodney Jackson, who she retained in
January 2014, sent the September 8, 2014 letter, which
“outlin[ed] Price’s complaints and potential claims of sex
discrimination, sexual harassment, retaliation, and violation of
federal wage and hour law to Mayor John Manchester, the Chair of
R[egion] 4’s Executive Board [sic, Executive Committee]” and
also noted that Price had recorded conversations on her office
computer. Defs.’ Resp. to Pl.’s Mot. Summ. J. at Ex. N; Pl.’s
Mot. Summ. J. 7-8; Pl.’s Mot. Summ. J. at Ex. 15.
On or before September 18, 2014, Chairman Manchester
provided Price with the forms for Family and Medical Act
(“FMLA”) Leave, which the plaintiff returned completed by her
healthcare provider, nurse practitioner Marnie Moose. Defs.’
Mot. Summ. J. 6; Pl.’s Mot. Summ. J. 8, Ex. 9. However, as the
plaintiff admits, the initial versions of these completed forms
contained several errors. Defs.’ Mot. Summ. J., Ex. Z.
Pursuant to FMLA regulations, Region 4 requested clarification,
and NP Moose added information to the forms. Defs.’ Mot. Summ.
J., Ex. D. Price provided Region 4 with the corrected forms on
December 1, 2014. Defs.’ Mot. Summ. J. 6, Ex. R. Region 4
granted the plaintiff’s requested leave from September 8, 2014
to January 5, 2015. Defs.’ Mot. Summ. J. 7, Ex. D at 291.
Notably, Price claims no employee from Region 4 has ever been
required to follow the FMLA certification process, but she
offers no evidence to support this. Pl.’s Mot. Summ. J. 8.
This period includes one extension of the leave, as NP
Moose estimated in the documentation that Price “might be able
to return to work on December 8, 2014.” Defs.’ Mot. Summ. J. 7,
Ex. S; Pl.’s Mot. Summ. J. 8, Ex. 14. Accordingly, Chairman
Manchester sent a letter to Price requiring her to return to
work on December 8th unless she furnished additional
documentation from her healthcare provider approving additional
leave. Pl.’s Mot. Summ. J. 8. Price provided the forms and
Chairman Manchester granted the additional leave request.
Price claims that Region 4 subjected her to
surveillance by a private investigator who allegedly sought to
obtain medical records from NP Moose. Pl.’s Mot. Summ. J. 8,
Ex. 2 at 146-151; Ex. 14 at 21-24. Price also alleges that
Tuggle placed her FMLA forms, which contained personal medical
information, in her R[egion]4 personnel/human resources file,
but does not point to anywhere in the record to support this
contention. Pl.’s Mot. Summ. J. 8-9.
The plaintiff returned to work on January 5, 2015.
Pl.’s Mot. Summ. J. 9; Defs.’ Mot. Summ. J. 7. Tuggle testified
that he wanted to give Price “the chance to come back [after her
medical leave] to work to see how that would work out,” but that
the recordings caused widespread stress at Region 4 and the
plaintiff showed “no remorse whatsoever” for making them.
Defs.’ Mot. Summ. J., Ex. T. 19.
Prior to when the plaintiff returned to work, Region 4
adopted revisions to the employee handbook on December 31, 2014.
Pl.’s Mot. Summ. J. 9. The new handbook included a provision
prohibiting recordings in the office and the use of “foul
language,” as well as a provision requiring employees to comply
with the FMLA when applying for medical leave. Pl.’s Mot. Summ.
J. at 9. Pl.’s Mot. Summ. J. 9, Ex. 2 at 198. On January 12,
2015, Price signed the handbook acknowledgment. Pl.’s Mot.
Summ. J. 9. Tuggle then required her to complete a leave
“questionnaire” regarding her time records.2 Pl.’s Mot. Summ.
J. 9, Ex. 13.
2 The form included questions such as: “Would you agree that your failure to
accurately report your sick leave used in August of 2006 resulted in you
carrying forward a higher balance of unused sick leave than the actual amount
accrued?” “Would you agree that your failure to accurately report the use of
this annual leave resulted in you carrying forward a higher balance of unused
annual leave than you actually accrued?”
On January 26, 2015 Price went to the U.S. Department
of Labor, Wage, and Hour Division in Charleston and “notified a
representative of R[egion] 4’s violations of the FLSA [Fair
Labor Standards Act].” Pl.’s Mot. Summ. J. 9. There is no
evidence that anyone at Region 4 knew of Price’s “notification”
to the Department of Labor, Wage, and Hour Division or that the
Department of Labor took any action as a result. On January 30,
2015, Tuggle terminated Price’s employment due to her
"unprofessional, disrespectful and inexcusable behavior in the
workplace" in recording office conversations. Defs.’ Mot. Summ.
J. 8, Ex. U. The discharge form indicated that the recordings
reveal Price’s “use[] [of] profane language” and her
“disparage[ment] [of] individuals at Region 4.” Id. It further
noted that by recording “an outside professional without his
knowledge,” Price “planted a seed of distrust of Region 4 which
could easily spread throughout the Region and State.” Id.
Price filed her seven-count complaint on February 12,
2016, as follows:
Count I: Violation of the Fair Labor Standards Act
(“FLSA”) and W. Va. Minimum Wage and Maximum Hours
Standards Act (“MWMHSA”)
Count II: Violation of the W. Va. Wage Payment and
Collection Act (“WPCA”)
Count III: Retaliation in Violation of the Fair Labor
Standards Act (“FLSA”) and West Virginia Human Rights
Act (“WVHRA”)
Count IV: Intentional Infliction of Emotional Distress
Count V: Violation of Proposed Public Policy
Count VI: Sex Discrimination & Sexual Harassment
(Hostile Work Environment) in violation of Title VII
and WVHRA
Count VII: Malice
This case invokes the court’s federal question
jurisdiction. The plaintiff seeks judgment as a matter of law
on Counts III, V, VI, and VII. In her motion, Price claims the
defendants discriminated against her because of her sex,
subjected her to a hostile work environment, retaliated against
her by terminating her employment, and acted with malice. The
defendants move for summary judgment on all counts.
II. Legal Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Material facts are
those necessary to establish the elements of a party’s cause of
action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable fact-
finder could return a verdict for the non-movant. Id. The
moving party has the burden of showing - “that is, pointing out
to the district court - that there is an absence of evidence to
support the nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the movant satisfies this burden,
then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at
322-23. A party is entitled to summary judgment if the record
as a whole could not lead a rational trier of fact to find in
favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party. Anderson, 477 U.S. at
248. Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute. Overstreet v.
Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Rather,
the party opposing the motion is entitled to have his or her
version of the facts accepted as true and, moreover, to have all
internal conflicts resolved in his or her favor. Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.” United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).
III. Discussion
1. Count I – Violation of the FLSA and W. Va. MWMHSA
The FLSA states:
No employer shall employ any of his employees who in
any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce, for a workweek longer than forty
hours unless such employee receives compensation for
his employment in excess of the hours above specified
at a rate not less than one and one-half times the
regular rate at which he is employed.
29 U.S.C. § 207(a)(2). Similarly, West Virginia law prohibits
employers from hiring employees “for a workweek longer than
forty hours, unless such employee receives compensation for his
employment in excess of the hours above specified at a rate of
not less than one and one-half times the regular rate at which
he is employed.” W. Va. Code § 21-5C-3(a).
Under both the FLSA and West Virginia Code, there are
exceptions to the general rule. For example, the FLSA provides
for an “administrative exception,” in which employees whose
“primary duty” is “the performance of work directly related to
the management or general business operations of the employer or
employer’s customers.” 29 C.F.R. § 541.201; see also 29 U.S.C.
§ 213(a)(1). And so, an administrative employee who performs
work “directly related to assisting with the running or
servicing of the business,” including but not limited to tax,
finance, accounting, budgeting and auditing, is exempt. Id.
Further, the West Virginia Code deems employees exempt
from the state overtime laws who: (1) make at least $455.00 per
week on either a salary or fee basis; (2) have a “primary duty”
of performing “office or non-manual work directly related to the
management or general business operations of the employer or the
employer’s customers;” and (3) whose “primary duty includes the
exercise of discretion and independent judgment with respect to
matters of significance.” W. Va. Code R. 42-8-8.11(a)-(c).
The plaintiff in this case falls under both the
federal and state exemptions. Price’s job title at Region 4 was
Fiscal Manager/Assistant Executive Director and before she was
terminated, her salary exceeded $85,000. As Fiscal Manager,
Price was in charge of the company’s auditing and periodic
budgets. Her deposition testimony confirms that she
administered the payroll, administered Region 4’s budget,
performed human resources functions, kept financial records, and
handled employee benefits relating to health, pension and
insurance. These responsibilities fall squarely within the
“non-manual” work activities that qualify under the FLSA
administrative exemption. With respect to the Assistant
Executive Director aspect of her job title, Price engaged in
“work directly related to the management” of the agency. In
fact, the plaintiff’s resume indicates that her duties in this
position included staff leadership, personnel administration,
collaboration with the Executive Director, establishing staff
priorities and deadlines, regulatory compliance, knowledge of
policy and procedure, administration of project-related duties
and tasks, management of personnel operations, overseeing
financial requirements, and leadership. Price clearly meets the
$455.00/week threshold under the Code and not one of her job
duties include those which could be considered “manual.”
Accordingly, “no reasonable jury could fail to find, by clear
and convincing evidence, that the exemption applies” under both
the FLSA and the West Virginia scheme. Gordon v. Rush Trucking
Corp., 2016 WL 1047084, at *10 (S.D. W. Va. 2016) (citing
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).
2. Count II – Violation of W. Va. Wage Payment and Collection
Act
The plaintiff claims she is entitled to liquidated
damages in an amount equal to three times unpaid wages under the
WPCA, W. Va. Code § 21-5-4(e), because Region 4 failed to
“timely pay [her] required overtime.” Compl. ¶ 45-46. However,
this provision specifically states: “This section regulates the
timing of wage payments upon separation from employment and not
whether overtime pay is due. Liquidated damages that can be
awarded under this section are not available to employees
claiming they were misclassified as exempt from overtime under
state and federal wage and hour laws.” W. Va. Code § 21-5-4(e).
“When a statute is clear and unambiguous and the legislative
intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to
construe but to apply the statute . . . .’” State v. General
Daniel Morgan Post No., 107 S.E.2d 353 (W. Va. 1959).
Accordingly, Price has no cause of action under the WPCA.
3. Count III – Retaliation
Both parties seek summary judgment on the plaintiff’s
claim for retaliation, which she brings under the FLSA and West
Virginia Human Rights Act (“WVHRA”).
A. The FLSA
The antiretaliation provision of the FLSA, 29 U.S.C. §
215(a)(3), makes it unlawful for an employer “to discharge or in
any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter, or
has testified or is about to testify in any such proceeding.”
Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363 (4th Cir. 2000).
To establish a prima facie case of retaliation under the FLSA, a
plaintiff must show that: (1) [s]he “engaged in an activity
protected by the FLSA; (2) [s]he suffered adverse action by the
employer subsequent to or contemporaneous with such protected
activity; and (3) a causal connection exists between the
employee's activity and the employer's adverse action.” Darveau
v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008).
With respect to the first element, “protected
activity” includes oral as well as written complaints of
violation of the FLSA. Kasten v. Saint-Gobain Performance
Plastics Corp., 563 U.S. 1, 1 (2011). As to the second element,
a FLSA plaintiff must show “that [the] employer retaliated
against h[er] by engaging in an action that would have been
materially adverse to a reasonable employee because the
employer's actions could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Id. at 343.
With respect to the final element, “[t]he crucial inquiry is
whether the decisionmaker had knowledge of the protected
activity at the time of the adverse employment action.” Swigert
v. Broadway Servs., Inc., 2009 WL 2139711, at *10 (D. Md. 2009).
The plaintiff claims it is “undisputed” that
defendants knew of the plaintiff’s protected activity, inasmuch
as they were aware of the complaints she made to them with
respect to Region 4’s overtime policy. These complaints include
a conversation on June 18, 2013 with Smith, in which Price
expressed her dissatisfaction with the agency’s employment
agreement which prohibited overtime compensation, and her
request that the agency include her proposed addition of $50,000
in the budget for either overtime compensation or the hiring of
new staff to avoid overtime, all of which she presented to the
Budget committee at a budget meeting. She claims these two
factors, along with the allegation that Region 4 placed
“impossible restrictions” on her in the form of additional
transitional duties during her ascension to Executive Director,
Tuggle’s refusal to give her a raise, the process by which she
was required to seek medical leave, and her discharge from
Region 4, establish a causal connection between her employer’s
knowledge and the alleged adverse action.
The court recognizes that Region 4 and Smith had
knowledge of the plaintiff’s protected activity relating to her
complaints about failure to pay overtime. Price proposed a
solution to that very problem and the Budget committee promptly
accepted Price’s June 19, 2013 budget designating $50,000 for
overtime payments or additional staff to avoid overtime, along
with $15,000 for contract services to update the employee
handbook. The Executive Committee then approved the budget that
very same evening, thereby approving the proposal by Price to
include overtime pay. There is no adequate basis on which to
conclude that the Executive Committee acted adversely towards
her as a result.
With respect to the second element, that she suffered
adverse action, the only action that could be considered adverse
was Region 4’s justifiable decision to terminate Price. The
court rejects the plaintiff’s claims of adverse action based on
her unsubstantiated contentions that (1) the Executive Committee
subjected her to “impossible restrictions” upon appointing her
as Executive Director and (2) “harassment” with respect to both
obtaining FMLA leave and while on medical leave.
First, the court does not believe that, in a period of
seventy-five days, from Price’s promotion on April 17, 2013 to
her resignation on July 1, 2013, her employer’s expectation that
she complete her everyday job duties while training an employee
and familiarizing herself with her new role in the agency, is
unduly restrictive. Price made little effort to meet these
expectations and instead soon resigned after her promotion was
ratified by the Executive Committee on April 17, 2013. The
plaintiff argues she was treated unfairly because the Executive
Committee did not hold Tuggle to the same standards. Tuggle,
however, was not already working for the agency. Thus, he did
not, and could not, be expected to train an employee while
maintaining other duties for Region 4 once hired. The court
does not find that the interim impositions upon her constituted
retaliation, but rather, concludes that her temporarily added
work duties were reasonable expectations in light of the
circumstances.
With respect to the January 2014 exchange between
Price and Tuggle regarding her salary, it appears that Price was
unhappy that unlike many of her coworkers, she did not receive a
raise. Executive Director Tuggle confirmed that Price, whose
salary was $85,315, misunderstood what he meant by the term
“range” – and he added that she could qualify for a raise in the
future, but at that time, her salary was fair. As the second
highest paid employee at Region 4, it does not appear to the
court that choosing to award other employees with a raise while
neglecting to award one to Price was “retaliation,” but rather,
a reasonable business decision.
The plaintiff also theorizes that Tuggle changed the
Region 4 work schedules to retaliate against her. However, a
closer listening of the October 3, 2013 recording reveals
legitimate justifications for Tuggle’s decision to mandate a
five-day workweek. For example, Smith pointed out that as the
new director of Region 4, it was reasonable for Tuggle to desire
that staff be present five days per week while he became
acclimated with the agency. Smith mentioned that Price may be
hurt by this change more than others; however, this was because
Price began working shorter workweeks prior to the time when her
coworkers began working non-traditional workweeks. Tuggle’s
policy thus appears to have the purpose of affecting employees
equally. It was not, as the plaintiff contends, an attempt to
harm her.
Second, nothing about the plaintiff’s medical leave
process appears to be adverse. Price specifically requested
FMLA forms for Family and Medical Leave. In accordance with
that request, Region 4 furnished necessary documents to be
completed by her healthcare provider. The completed forms
contained ambiguities and numerous errors. Thus, requesting the
plaintiff to furnish revised forms was not retaliatory, but
rather, expected and also required by the FMLA. Further,
mandating the plaintiff to return to work on December 8, 2014 in
accordance with NP Moose’s specification that she might be able
to return on that date - unless she provided further
documentation - was not adverse, inasmuch as she was granted
additional leave until January 5, 2014 after completing the
request. Finally, asking an employee to complete a
questionnaire about her leave and time records does not
constitute retaliation, and the plaintiffs have not cited to any
case law establishing otherwise.
Regarding Price’s contention that Region 4 hired a
private investigator to improperly seek medical records from NP
Moose, plaintiff provides only her own speculative deposition
testimony, and testimony from Moose, who merely suspected that
this was a private investigator calling on Region 4’s behalf.
There is simply no evidence to support this allegation.
Even if the court were of the opinion that the facts
sufficiently supported a prima facie case for retaliation, which
it does not, the defendants have asserted a legitimate,
nondiscriminatory reason for its decision to terminate the
plaintiff’s employment. Thus, Price cannot prevail. Holland v.
Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). The
defendants’ burden to show a legitimate reason is not one of
persuasion, but of production. Id. And it is “low such that it
‘need not persuade the court that it was actually motivated by
the proffered reasons’ so long as it otherwise articulates a
legitimate reason that is supported by the evidence.” Robinson
v. Affinia Group, Inc., 815 F. Supp. 2d 935, 943 (W.D. N.C.
2011) (quoting Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 (1981)).
The parties agree that the plaintiff’s termination
resulted at least in part from her decision to record office
conversations from 2012 to 2014. While Price was on FMLA leave,
it was discovered that she had made over 150 secret recordings
of Region 4 administrators, staff members, and clients over a
three-year period. See Defs.’ Mot. Summ. J. at Ex. U. As the
Discipline Documentation Form, which served as Price’s
termination letter, indicated, the recordings “planted a seed of
distrust . . . which could [have] easily spread throughout the
Region and State.” Defendant Tuggle confirmed this in his
deposition:
[The decision to end Price’s career at Region 4] would
have been after she returned from her leave . . . with
the advent of the recordings and all the stress that
had created within the office and so forth, you know.
I wanted to give her the chance to come back to work
there to see how that would work out within our
agency, and it just was evident that . . . she showed
no remorse whatsoever for what she had done and,
therefore . . . I could see that it would go nowhere
and just decided that she would need to part ways.
Her presence there would have been detrimental to our
agency.
Defs.’ Mot. Summ. J., Ex. T at 19. Because the evidence offered
by the defendants supports Tuggle’s justification, plaintiff’s
retaliation claim under the FLSA fails as a matter of law.
B. The WVHRA
With respect to Price’s state law retaliation claim,
the WVHRA requires a showing that: (1) the plaintiff “engaged in
protected activity;” (2) the plaintiff’s “employer was aware of
the protected activities;” (3) the plaintiff “was subsequently
discharged;” and (4) “(absent other evidence tending to
establish a retaliatory motivation)” the plaintiff’s “discharge
followed her protected activities within such period of time
that the court can infer retaliatory motivation.” Frank’s Shoe
Store v. West Virginia Human Rights Comm’n, 365 S.E.2d 251, 259
(W. Va. 1986).
The plaintiff sets forth essentially the same grounds3
in support of her state law retaliation claim as she does her
3 The specific factual bases for the plaintiff’s state law claim are: (1)
Tuggle changing Price’s work schedule stating: “It’s going to hurt you more
personally” (though the recording reveals otherwise); (2) Tuggle imposing a
“salary cap” (though the recording reveals the term “range” was used) on
Price while not imposing this on other employees; (3) furnishing the
plaintiff FMLA Family and Medical Leave paperwork and mandating that she meet
FMLA requirements for such leave “even though these restrictions have never
been placed on anyone else;” (4) requiring Moose to “furnish detailed medical
information, where this had never been required before” and “Manchester
demanding clarification on the medical information provided;” (5) Tuggle
demonstrating that FMLA process was a “charade” by allegedly withdrawing
approval for FMLA leave; (6) subjecting Price to surveillance of a private
investigator; (7) Tuggle requiring Price to return to work on December 8,
2014 “even though she had not been released to return;” (8) the Executive
Committee holding a special meeting to adopt a “new handbook” four days prior
to Price’s return to work; (9) Price “being forced” to sign the handbook
before being discharged (while her deposition reveals that all employees were
required to sign the handbook); (10) Tuggle requiring Price to complete the
overtime “questionnaire;” (11) Price’s discharge; and (12) Region 4’s alleged
failure to conduct inquiry into Price’s complaints, but instead dismisses
FLSA claim. As stated, the plaintiff engaged in protective
activity when she made oral complaints to Smith about the
agency’s overtime policy and Region 4 was put on notice of those
after it received a letter from her counsel in September 2014.
However, her state law retaliation claim fails for the same
reason as does her FLSA retaliation claim: a legitimate,
nondiscriminatory reason breaks the causal chain of Region 4’s
knowledge of Price’s complaints and her discharge from
employment. See Conrad, 480 S.E. 2d at 814.
4. Count IV – Intentional Infliction of Emotional Distress
To prevail on a claim for intentional or reckless
infliction of emotional distress, the following elements must be
established:
(1) conduct by the defendant which is atrocious,
utterly intolerable in a civilized community, and so
extreme and outrageous as to exceed all possible
bounds of decency; (2) the defendant acted with intent
to inflict emotional distress or acted recklessly when
it was certain or substantially certain such distress
would result from his conduct; (3) the actions of the
defendant caused the plaintiff to suffer emotional
distress; and (4) the emotional distress suffered by
the plaintiff was so severe that no reasonable person
could be expected to endure it.
them “out of hand” (though she cites to nowhere in the record to support this
claim).
Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (1998). The
defendant's actions “must be more than unreasonable, unkind or
unfair; it must truly offend community notions of acceptable
conduct.” Grandchamp v. United Air Lines, Inc., 854 F.2d 381,
383 (10th Cir. 1988).
The plaintiff claims that the defendant’s actions
toward her, “including but not limited to, accusing her of
improperly manipulating her personal compensation, imposing
unreasonable conditions upon her assumption of the position of
Executive Director, refusing to allow her adequate time to
transition into the position of Executive Director despite her
repeated requests, repeatedly requiring her to submit additional
medical information and requiring her to comply with unique
procedures in order to obtain sick and annual leave to which she
was entitled under law, and discharging her from employment were
intended by Defendants to create and foster anxiety and severe
emotional distress in the Plaintiff.” Compl. ¶ 53. These
accusations simply do not amount to the egregious conduct a
plaintiff must allege to survive a motion for summary judgment.
As the court explained previously herein, the alleged
restrictions placed on her promotion while transitioning were
not unduly burdensome or restrictive. Further, the process of
obtaining her medical leave complied with the FMLA. Moreover,
the plaintiff’s claim in this respect is premised on her
contention that it was unfair that no other employee was
required to obtain, as was she, formal FMLA approval for her
leave. As stated, however, unfair treatment does not amount to
intentional infliction of emotional distress. Lastly, the
plaintiff’s termination was legitimate. For these reasons, no
reasonable jury could find that the plaintiff suffered
intentional infliction of emotional distress.
5. Count V - Violation of Proposed Public Policy
Plaintiff also asserts a claim for wrongful
termination under West Virginia law. Although West Virginia is
an at-will employment state and West Virginia law generally does
not support a wrongful termination cause of action, a narrow
exception exists when the termination occurs as a result of an
employer’s violation of public policy and there is no other
avenue of relief. See Harless v. First Nat. Bank in Fairmont,
246 S.E.2d 270 (W. Va. 1978). “To identify the sources of
public policy for purposes of determining whether a retaliatory
discharge has occurred, [the court] look[s] to established
precepts in our constitution, legislative enactments,
legislatively approved regulations, and judicial opinions.”
Birthisel v. Tri-Cities Health Services Corp., 424 S.E.2d 606,
612 (1992). Because no reasonable fact finder could find that
Price suffered adverse employment action aside from her
discharge and because that discharge was lawful for the reasons
already advanced in connection with Count III, the court
concludes that summary judgment is also appropriate on the
proposed public policy claim.
6. Count VI – Sex Discrimination & Sexual Harassment (Hostile
Work Environment)
A. Title VII
1. Sex Discrimination
The defendants contend that Price failed to file a
charge with the Equal Employment Opportunity Commission (“EEOC”)
and thus lost her ability to recover under Title VII. 42 U.S.C.
§ 2000e-5(e)(1). Under the Civil Rights Act, a plaintiff must
file a charge with the EEOC within 180 days of the alleged
discriminatory act to sue in federal court under Title VII or
300 days if the plaintiff initially instituted proceedings with
a state or local agency with authority to grant or seek relief
from the alleged discrimination. See id. There is no evidence
to support that plaintiff timely filed a charge with the EEOC,
and she is noticeably silent on the point in her responsive
briefs. Not having filed with the EEOC, Price cannot seek
remedy for her discrimination claim under Title VII. In the
unlikely event that Price did in fact file a charge, the court
will proceed with the merits of her claim.
Under Title VII of the Civil Rights Act of 1964, an
employer is not permitted “to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2. There are two
ways in which a plaintiff “may avert summary judgment and
establish a claim” for sex discrimination under Title VII. Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85
(4th Cir. 2004)(en banc), abrogated on other grounds by Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 388 (2013). It can be
done by either (1) demonstrating through direct or
circumstantial evidence that sex discrimination “motivated the
employer’s adverse employment decision” or (2) “under a
‘pretext’ framework, in which the employee, after establishing a
prima facie case of discrimination, demonstrates that the
employer’s proffered permissible reason for taking an adverse
action is actually a pretext for discrimination.” Id.
Under Title VII, the plaintiff has pursued the second
avenue of proof. A prima facie case of sex discrimination under
that framework requires a showing that “(1) she is a member of a
protected class; (2) she suffered adverse employment action; (3)
she was performing her job duties at a level that met her
employer's legitimate expectations at the time of the adverse
employment action; and (4) the position remained open or was
filled by similarly qualified applicants outside the protected
class.” Id. at 285. If the plaintiff makes a sufficient
showing, the burden of proof shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the
adverse employment action. Id.
Price asserts that Region 4 took adverse employment
action against her by causing her to step down from the
Executive Director position, yet she performed her job duties in
accordance with the legitimate expectations of Region 4. She
alleges this conduct was motivated by sex discrimination.
Specifically, she claims that having no prior record of
discipline, receiving a recommendation from Smith to be
promoted, and receiving regular salary increases evidences her
qualifications. She then asserts that although she voluntarily
withdrew from the position, it was “fraught with obstacles and
impediments” that caused her withdrawal.
As discussed previously herein, these alleged
“obstacles” were not overly restrictive or preventative of
Price’s ability to successfully ascend into the position. Nor
do those “obstacles,” which were simply reasonable expectations,
appear to have been motivated by discrimination. Further, the
fact that she adhered to the agency’s prior expectations as
evidenced by her multiple salary raises, that Smith recommended
her promotion, and that the Executive Committee approved her
promotion rebuts her theory that Region 4 discriminated against
her because of her sex. Price provides no evidence, aside from
the accusation that “the Agency favored males in executive
positions,” and the fact that Region 4 hired a male to replace
her once she resigned from the position, to support her
contention. Compl. ¶ 61. As a matter of law, these asserted
“facts” are simply insufficient to establish a case for
discrimination. Moreover, it was Price who, within a couple of
months or so, resigned from the Executive Directorship to which
she was being promoted, and it was her choice to remain as
Assistant Executive Director. The Executive Committee voted for
her to assume the position of Executive Director - it was
Price’s choice and hers alone to not accept it. Accordingly,
the plaintiff has failed to establish a prima facie case of
discrimination.
Regardless, the defendants have set forth a legitimate
reason for the plaintiff’s discharge and her discrimination
claim thus fails under federal and state law. The defendants
have stated that her “unprofessional, disrespectful, and
inexcusable behavior” in making secret recordings of office
conversations with “administrators, staff members, and clients”
caused Tuggle to terminate her employment. See Defs.’ Mot.
Summ. J. at 7-8. The discharge form noted that the recordings
revealed that Price “used profane language to [her] coworkers,
disparaged individuals at Region 4, and by recording an outside
professional without his knowledge, planted a seed of distrust
of Region 4 which could easily spread throughout the Region and
State.” Id. at 8. The evidence roundly supports the actions of
the defendants.
2. Sexual Harassment (Hostile Work Environment)
The sex-based statements made by Smith in this case,
though derogatory, inappropriate, and offensive, are not, as a
matter of law, sufficiently severe to substantiate a claim for
sexual harassment. In order to establish a claim for hostile
work environment based on sexual harassment, the plaintiff must
show that the conduct “was sufficiently severe or pervasive to
alter the conditions of” employment “and create an abusive work
environment.” Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir.
2008). The analysis is two-fold; the alleged occurrences must
be both severe and frequent for Title VII purposes. See, e.g.,
Shields v. Fed. Exp. Cop., 120 Fed. Appx. 956, 961 (4th Cir.
2005); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th
Cir. 2008). There exists a "high bar in order to satisfy the
severe or pervasive test” to state a prima facie case of hostile
work environment. Sunbelt Rentals, 521 F.3d at 315. Indeed,
there must be a showing that “the environment was pervaded with
discriminatory conduct aimed to humiliate, ridicule, or
intimidate, thereby creating an abusive atmosphere.” E.E.O.C.
v. Cent. Wholesalers, Inc., 573 F.3d 167, 176 (4th Cir. 2009)
(internal quotations omitted). “[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment.” Sunbelt Rentals, 521 F.3d at 315 (internal
quotations omitted). And mere “incidents must be more than
episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive.” Shields v. Fed. Express Corp.,
120 Fed. Appx. 956, 961 (4th Cir. 2005).
Of the 150 recordings made over a two-year period, the
plaintiff in this case cites only the five stated instances of
inappropriate or unwelcomed sexual-related comments that were
made in her presence. Moreover, it appears that only one of
those recorded instances was invasive – where Smith told Price
that he was “sitting here looking at you, pretending like you
don’t have any clothes on.” This isolated statement in April
2012, whether alone or with his other listed comments, does not
meet the numerosity requirement inasmuch as it does not appear
that inappropriate comments were continuously or repetitively
made to Price. See Herbert v. Olympia Hotel Management LLC,
2014 WL 414227, at *4–5 (W.D. Va. 2014) (explaining that
“precedent is very clear that incidents [of sexual harassment]
must be numerous and continuous in order to be deemed severe and
pervasive” and concluding that plaintiff could not show that the
unwelcome conduct was sufficiently severe or pervasive to alter
the plaintiff's conditions of employment where the plaintiff
presented evidence of only one incident of harassment). Nor do
these comments rise to the level of severity and pervasiveness
required to state a claim. See Celetox, 477 U.S. at 322
(explaining that Rule 56(c) of the federal rules of civil
procedure requires entry of summary judgment against a party who
fails to make a showing sufficient to establish the existence of
an element essential to the party’s case).
B. The WVHRA
Turning to the plaintiff’s sexual harassment claim
under the WVHRA, Price must show that her employer’s alleged
conduct: (1) was unwelcome; (2) was based on her sex; (3) “was
sufficiently severe or pervasive to alter the conditions of
employment and create an abusive work environment;” and (4) was
imputable to Region 4. Hanlon v. Chambers, 464 S.E.2d 741, 748-
49 (W. Va. 1995) (citing Harris v. Forklift Systems, Inc., 510
U.S. 17, 20 (1993). The test for establishing a sexual
harassment under the West Virginia Human Rights Act is identical
to that under Title VII. See id. “An employee may state a
claim for hostile environment sexual harassment if unwelcome
sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature have the purpose or effect
of unreasonably interfering with an individual's work
performance or creates an intimidating, hostile, or offensive
working environment.” Syl. pt. 7, Hanlon v. Chambers, 464
S.E.2d 741 (W. Va. 1995). In order to determine whether the
plaintiff should have survived a summary judgment motion, the
court must determine whether Price has “adduced sufficient facts
to create an inference that she experienced a hostile or abusive
work environment because of actionable sexual harassment.”
Conrad v. ARA Szabo, 480 S.E.2d 801, 810 (W. Va. 1996).
The defendants correctly assert that the two-year
statute of limitations applicable to claims made under the WVHRA
warrants dismissal. See Metz v. Eastern Associated Coal, LLC,
799 S.E.2d 707, 710 (2017). The statute of limitations for
employment discrimination cases under this Act begins to run
from the date the plaintiff first learns of the alleged act of
discrimination. Id. The dates on which the inappropriate, sex-
based comments in question took place were April 19, 2012, April
23, 2012, June 25, 2012, June 26, 2012, and August 1, 2013.
Accordingly, the plaintiff would have been required to file this
action by August 1, 2015 in order to seek remedy under the WVHRA
with respect to her sexual harassment allegations. The
plaintiff did not file the complaint in this case until February
12, 2016. Accordingly, the WVHRA sex discrimination claim is
barred. Nonetheless, even addressing the WVHRA claim on the
merits, it fails for the same reasons as do the Title VII claims
on this same subject matter.
Accordingly, the court concludes that Price’s Title
VII and WVHRA claims based on sex discrimination and sexual
harassment (hostile work environment) fail as a matter of law,
and that the defendants are entitled to summary judgment on
Count VI.
7. Count VII – Malice
Lastly, the plaintiff claims the defendants acted with
malice and that she is thus entitled to an award of unmitigated
back pay and front pay. The defendants correctly assert,
however, that the malice exception permitting front pay and back
pay without need for mitigation has been abolished. See W. Va.
Code §55-7E-3 (“In any employment law cause of action . . . the
plaintiff has an affirmative duty to mitigate past and future
lost wages, regardless of whether the plaintiff can prove the
defendant employer acted with malice. The malice exception to
the duty to mitigate damages is abolished.”).* Accordingly, the
defendants are entitled to summary judgment on this count as
well.
Iv. Conclusion
For the foregoing reasons, it is ORDERED that the
plaintiff’s motion for summary judgment be, and hereby is,
denied and that the defendants’ motion for summary judgment be,
and hereby is, granted on all counts.
The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
ENTER: April 25, 2019
Dé SL <>< ot
Jo . Copenhaver, Jr.
Senior United States District Judge
4 The West Supreme Court of Appeals resolved the issue of whether retroactive
application of W. Va. Code §55-7E-3 is proper in this case, in which it held
that the statute applies to claims arising before its enactment. See
Martinez v. Asplundh Tree Expert Co., 803 S.E.2d 582 (W. Va. 2017). Indeed,
this case was stayed for a time while awaiting the Martinez decision.
43