# Romans v. Wayne County Commission

> District Court, S.D. West Virginia · September 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10729849

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** September 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

PATRICIA ROMANS,

Plaintiff,

v. CIVIL ACTION NO. 3:20-0797

WAYNE COUNTY COMMISSION,
WAYNE COUNTY SHERIFF, RICHARD
THOMPSON, individually and in his official
capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss by Defendant Wayne County
Commission and Wayne County Sheriff Richard Thompson, individually and in his official
capacity. ECF No. 9. Plaintiff Patricia Romans opposes the motion. For the reasons stated below,
the motion IS DENIED.
I.
FACTUAL ALLEGATIONS

In her Complaint, Plaintiff alleges that, on January 15, 2019, she began working
as a clerk who processed tax payments and performed other clerical duties for Defendant Wayne
County Commission. At all relevant times, Defendant Richard Thompson (hereinafter Sheriff
Thompson) was the county sheriff and Plaintiff’s supervisor. On March 25, 2020, Plaintiff’s
treating physician requested Plaintiff be permitted to work from home for a period of thirty days
because her medical conditions place her at increased risk during the COVID-19 pandemic.
Plaintiff specifically points out that she suffers from chronic obstructive pulmonary disease
(“COPD”), which is an established risk factor. Plaintiff alleges Defendants did not respond to her
request to work from home for the next seven months.

On July 7 2020, West Virginia Governor Jim Justice issued Executive Order No.

50-20, which requires, in part, that individuals over the age of 9 wear face coverings in certain
indoor settings. Exec. Order No. 30-20,
https://governor.wv.gov/Documents/2020%20Executive%20Orders/EO%2050-20.pdf (Last
accessed on August 30, 2021).1 Plaintiff claims that, despite the Executive Order, Defendants did
not require employees to wear masks where she worked, and her co-workers openly mocked her
for wearing a mask. She further alleges that, when she asked Sheriff Thompson to enforce the
mask mandate, he derided her in front of the other employees for making the request. On July 28,
2020, Plaintiff’s treating physician documented her COPD diagnosis, her need to avoid exposure
to COVID-19, and the necessity for her to be placed on leave through October 28, 2020 under
the Family Medical Leave Act (FMLA) to avoid contact with other unmasked employees.

1Executive Order No. 50-20 provides, in part:

All individuals age 9 and over within the State of West Virginia
shall wear an adequate face covering when in confined, indoor
spaces, other than when in one’s residence or when actively
engaged in the consumption of food and/or beverage, and when not
able to adequately social distance from other individuals who do
not reside in the same household.

Id. at 3. Defendants state there was no indoor public space mask mandate until November 14,
2020. Exec. Order No. 77-20,
https://governor.wv.gov/Documents/2020%20Executive%20Orders/EO%2077-
20%20Face%20Covering%20Amendment.pdf (Last accessed on August 30, 2021). For purposes
of this motion, the Court need not resolve any disagreement between the parties as to when the
mask mandate applied.
Plaintiff’s request for unpaid FMLA was granted, with her scheduled to report back to work on
October 29, 2020.

Seven months after Plaintiff asked to work from home, Sheriff Thompson finally

responded to the request and denied the same on October 26, 2020. The next day, Plaintiff
telephoned the sheriff’s office and asked whether employees were complying with the mask
mandate. Plaintiff states she was told no. Plaintiff asked to speak with Sheriff Thompson, but she
was told he was unavailable so she left a message for him to call her. Plaintiff claims that,
although Defendants had a pattern and practice of communicating with her, Sheriff Thompson
did not return her call. Plaintiff states she did not return to work on October 29, when her leave
expired, because she was waiting for Sheriff Thompson to call her. On that same day, she
received a certified letter from Sheriff Thompson stating she was terminated.

Plaintiff then filed this action on various grounds. First, she claims Defendants’

actions constituted discrimination and retaliation for her exercising her rights under the FMLA
(Count I). Second, she asserts a claim for disability discrimination in violation of the West
Virginia Human Rights Act (WVHRA) (Count II). Third, Plaintiff alleges Defendants violated
public policy under the FMLA, which gives rise to a claim under Harless v. First National Bank,
246 S.E.2d 270 (W. Va. 1978). Defendants move to dismiss all these claims for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II.
STANDARD OF REVIEW
In ruling on a Rule 12(b)(6) motion, courts must look for “plausibility” in the
complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). This standard requires a
plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
at 555 (internal quotation marks and citations omitted). Accepting the factual allegations in the
complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief

above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint,
assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should
. . . be exposed at the point of minimum expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotation marks and citations omitted).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained the
requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme
Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678
(internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-
unlawfully-harmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a
claim contains “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court
continued by explaining that, although factual allegations in a complaint must be accepted as true
for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a
complaint requires a court to conduct a context-specific analysis, drawing upon the court’s own
judicial experience and common sense. Id. at 679. If the court finds from its analysis that “the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id.
(quoting, in part, Fed. R. Civ. P. 8(a)(2)). The Supreme Court further articulated that “a court

considering a motion to dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” Id.
III.
DISCUSSION

A.
Count 1 - FMLA

In their motion, Defendants first argue Plaintiff has failed to state a claim under
the FMLA because she was granted FMLA and was fired for not returning to work when her
leave expired. Thus, Defendants assert Plaintiff cannot maintain her claim that she was
discriminated and retaliated against for exercising her rights under the FMLA as alleged in Count
I.2

229 U.S.C.A. § 2615(a) of the FMLA provides:

(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
subchapter.

(2) Discrimination
The parties agree that in order for Plaintiff to maintain her claim she must make a
prima facie showing that (1) “she engaged in a protected activity[,]” (2) Defendants took an
adverse action against her, and (3) the adverse action was casually connected to her protected
activity. Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015) (internal

quotation marks and citation omitted). If Plaintiff establishes a prima facie case, the burden then
shifts to Defendants to offer a non-retaliatory reason for the adverse action. Id. (citing Laing v.
Fed. Exp. Corp., 703 F.3d 713, 717, 719 (4th Cir. 2013), citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)).3 If Defendants show such a reason, Plaintiff then must show
Defendants’ proffered reason is mere pretext. As to this point, Defendants argue that Plaintiff
was terminated because she failed to return to work, not because she requested and took FMLA.
Therefore, Defendants insist Count I must be dismissed. The Court finds, however, that
Plaintiff’s allegations are sufficient for her claim to proceed.

Specifically, with respect to alleging a prima facie case, Plaintiff first has alleged

she engaged in a protected activity, that is, she notified Defendants that she suffered a serious
health condition and requested and received leave under the FMLA. Second, the parties agree

It shall be unlawful for any employer to discharge or in any
other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.

29 U.S.C.A. § 2615(a).

3A plaintiff also can maintain a claim under the FMLA by producing “direct and indirect
evidence of retaliatory animus.” However, the parties both rely upon the McDonnell Douglas
approach in this case. Fry v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020), cert. denied,
209 L. Ed. 2d 732 (May 3, 2021).
Plaintiff suffered an adverse action by virtue of her termination.4 Third, Plaintiff alleges
Defendants’ decision to terminate her was motivated by the fact she engaged in protected activity
under the FMLA, which is evidenced by the fact Sheriff Thompson refused to speak with her,
refused to enforce the mask mandate or allow her a reasonable accommodation, and fired her

immediately after her FMLA expired. Although Defendants argue she was fired for a legitimate,
non-discriminatory reason because she did not return to work, Plaintiff insists Defendants’
proffered reason is mere pretext and the temporal proximity of her termination to the expiration
of her leave is evidence of retaliation. As the Court must consider the facts in the light most
favorable to Plaintiff for purposes of a motion to dismiss, the Court finds Plaintiff’s allegations
are sufficient to state a claim of retaliation under the FMLA and DENIES Defendants’ motion
with respect to this claim.

Defendants further argue that Plaintiff was never entitled to leave under the
FMLA as a matter of law under guidance set forth by the Department of Labor that an employee

cannot stay home under the Act to avoid exposure to COVID-19. Instead, the FMLA is designed
to protect eligible employees “who are incapacitated by a serious health condition,” and just
being afraid of being exposed to COVID-19 is not enough under the FMLA. Covid-19 and the
Family and Medical Leave Act Questions and Answers, Dep’t of Labor,

4Plaintiff also claims that Defendants’ failure to enforce the West Virginia’s mask
mandate was an adverse action against her. As previously mentioned, Defendants insist there
was not a “mandate” until November 2020, which was after Plaintiff’s termination. As Plaintiff
has alleged her termination itself was an adverse action, the Court finds she has sufficiently
alleged an adverse action under the second prong, and the Court need not parse through the
nuances of her mask argument at this time.
https://www.dol.gov/agencies/whd/fmla/pandemic#4 (last visited on August 30, 2021). 5 In
Response, Plaintiff argues that Defendants should be equitably estopped from making any
argument that she was not entitled to leave under the Act because they granted it to her.

Upon consideration, the Court declines to address whether equitable estoppel
should be applied at this point in the proceedings. Before the issue of equitable estoppel is
reached, it first must be determined if Plaintiff detrimentally relied upon Defendants’
representation that she was entitled to leave under the Act. Clearly, Plaintiff was told she was
entitled to leave when she took it. However, it is unknown to the Court whether Plaintiff would
have reported to work even if Defendants had told her she was not eligible for FMLA. “Where
an employee fails to adequately show that . . . she would have structured her leave differently
had her employer properly informed her of her FMLA eligibility courts have concluded that the
employee cannot show detrimental reliance and therefore cannot prevail on an estoppel theory.”
Adams v. Buckeye Fire Equip. Co., No. 3:19-CV-422-MOC-DSC, 2021 WL 1063796, at *4

(W.D.N.C. Mar. 18, 2021) (internal quotation marks and citations omitted). In other words, if
Plaintiff was unwilling to report to work even if she knew she was not entitled to FMLA

5In part, the Department of Labor’s guidance provides:

Can an employee stay home under FMLA leave to avoid
getting COVID-19?

No. The FMLA protects eligible employees who are incapacitated
by a serious health condition, as may be the case with COVID-19
in some instances, or who are needed to care for covered family
members who are incapacitated by a serious health condition.
Leave taken by an employee solely for the purpose of avoiding
exposure to COVID-19 is not protected under the FMLA.

Id., in part.
coverage, she did not detrimentally rely upon Defendants’ representation that she was entitled to
leave under the Act and cannot invoke equitable estoppel.6
B.
Count II – WVHRA

Next, Defendants argue Plaintiff has failed to state a claim for disability
discrimination under the West Virginia Human Rights Act (WVHRA), West Virginia Code § 5-
11-1 et seq. The WVHRA makes it unlawful for an employer to discriminate against an
individual based on the individual’s disability with respect to the tenure, terms, conditions, or
privilege of employment, provided the individual is able and competent to perform the services
required. See W. Va. Code. §§ 5-11-3(h),7 5-11-9(1).8 As with Plaintiff’s claim under the FLMA,
Plaintiff’s claim under the WVHRA is subject to the burden-shifting paradigm pronounced in
McDonnell Douglas, that is, Plaintiff must establish a prima facie case, Defendants then may
offer a legitimate, nondiscriminatory reason for their actions, and then the burden shifts back to
Plaintiff to prove the proffered reason is mere pretext. See Skaggs v. Elk Run Coal Co., 479

6The Court further recognizes that “‘[t]he Fourth Circuit has not yet applied equitable
estoppel in the context of FMLA eligibility, but several other circuits and at least one district
court within the Fourth Circuit have done so.’” Yaskowsky v. Phantom Eagle, LLC, No.
4:19CV9, 2020 WL 809378, at *9 (E.D. Va. Feb. 18, 2020) (quoting Schmidt v. Town of
Cheverly, Md., GJH-13-3282, 2014 WL 4799039, at *6 (D. Md. Sept. 25, 2014) (“citing cases
from the Second, Third, Fifth, and Sixth Circuits and deeming it proper to reach the merits of an
FMLA equitable estoppel claim”), and citing Blankenship v. Buchanan Gen. Hosp., 999 F. Supp.
832, 838 (W.D. Va. 1998) (“applying equitable estoppel in the FMLA context”)). At this time,
this Court simply finds any estoppel argument premature.

7Subsection 3(h) sets forth the definitions of “discriminate” and “discrimination” under
the WVHRA, which provides, in part, “to exclude from, or fail or refuse to extend to, a person
equal opportunities because of . . . disability[.]” W. Va. Code 5-11-3(h).

8Subsection 9(1) states, in part: “It shall be an unlawful discriminatory practice, unless
based upon a bona fide occupational qualification, . . . (1) For any employer to discriminate
against an individual with respect to compensation, hire, tenure, terms, 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 5-11-9(1)
S.E.2d 561, 581-82 (W. Va. 1996) (outlining framework). To establish a claim of disability
discrimination under the WVHRA, a “plaintiff must show that [s]he is a disabled person within
the meaning of the law, that [s]he is qualified to perform the essential functions of the job (either
with or without reasonable accommodation), and that [s]he has suffered an adverse employment

action under circumstances from which an inference of unlawful discrimination arises.” Id. at
582 n.22.

Applying this standard to the allegations in the present case, the Court finds
Plaintiff has adequately alleged a prima facie case of disability discrimination. First, Plaintiff
asserts her COPD is a health condition “that substantially limit[s] certain major life activities” or,
in the alternative, Defendants regarded her as having such an impairment. Compl. at ¶¶62, 63.
Second, Plaintiff maintains that she was qualified for her position and that “she was and is able
to perform the essential functions of her job, with or without reasonable accommodation.” Id. at
¶64, in part. Third, Plaintiff was terminated and her disability (or Defendants’ perception of her

disability) was a motivating factor in the termination. Id. at ¶¶66, 67. Plaintiff further claims
Defendants took an adverse action against her by “1) refus[ing] to accommodate her by simply
requiring its employees to comply with the face covering mandate, 2) refus[ing]to communicate
with Plaintiff concerning potential other accommodations for her COPD, and 3) terminating
Plaintiff without making any reasonable efforts to accommodate her.” Id. at ¶65. Plaintiff further
maintains that whether enforcing mask-wearing was a reasonable accommodation is not
determinative of whether she has properly alleged a claim. Taking the above allegations in the
light most favorable to Plaintiffs, the Court agrees and finds she has adequately stated a claim
under the WVHRA. Thus, the Court DENIES Defendants’ motion to dismiss Plaintiff’s
WVHRA claim.
C.
Count III – Harless

Lastly, Defendants argue Plaintiff has failed to allege a proper claim under
Harless v. First National Bank, 246 S.E.2d 270 (W. Va. 1978). In Harless, the West Virginia
Supreme Court carved out an exception to the rule that an employer may terminate an at-will
employee by holding, “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”
notwithstanding the general at-will termination rule. Syl., Harless. Thus, “a cause of action for
wrongful discharge exists when an aggrieved employee can demonstrate that his/her employer
acted contrary to substantial public policy in effectuating the termination.” Feliciano v. 7-Eleven,
Inc., 559 S.E.2d 713, 718 (W. Va. 2001).

Defendants argue, however, that Plaintiff cannot maintain a claim under Harless
for violations of policies under either the FMLA or WVHRA for the same alleged wrongdoing.
Although Defendants are correct that federal courts in West Virginia have repeatedly held that a
plaintiff cannot maintain “both a Harless-based common law action and a WVHRA claim based
on the same conduct[,]” Adkins v. Cello P’ship, Inc., Civ. Act. No. 3:17-2772, 2017 WL
2961377, at *3 (S.D. W. Va. July 11, 2017),9 Plaintiff does not rely upon violations of public

policies under the WVHRA in Count III of her Complaint. Instead, Plaintiff’s Harless claim is
premised on violations of public policies under the FMLA. See Compl. III (“Harless Claim
Based on the Public Policies of FMLA”). With respect to a Harless related policies under the

9Citations omitted.
FMLA, this Court recognized in Vandevander v. Verizon Wireless, LLC, 149 F. Supp.3d 724
(S.D. W. Va. 2016), that the FMLA does not preempt state law claims and “[n]o cases in West
Virginia ha[ve] established that a plaintiff could not maintain a FMLA claim and a common law
retaliatory discharge claim, so this Court permitted both claims ... to advance.” Adkins, 2017
WL 2961377, at *3 (citing Vandevander, 149 F. Supp.3d at 728-29)). Therefore, the Court
permitted both claims in Vandevander to proceed. Likewise, the Court in this case finds
Defendants’ argument that Plaintiff cannot proceed under both the FMLA and HAarless
unavailing. Thus, the Court DENIES Defendants’ motion to dismiss Count II.
HI.
CONCLUSION
Accordingly, having found all three of Plaintiff’s claims sufficiently pled, the
Court DENIES Defendants’ Motion to Dismiss. ECF No. 9.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.

ENTER: September 1, 2021
Z , LV] LL
fou
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

-12-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729849. Public record. Not legal advice.