Hall v. Gestamp West Virginia, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

AMBER D. HALL,

Plaintiff,

v. Civil Action No. 2:20-cv-00146

GESTAMP WEST VIRGINIA, LLC,

KENNETH SUPRENANT,

and SCOTT HUGHES,

Defendants.

MEMORANUDM OPINION AND ORDER

Pending is the defendants’ motion for summary

judgment, filed on November 6, 2020 (ECF No. 75).

I. Background

A. The complaint

The plaintiff commenced this action on or about April

18, 2018, by filing a complaint in Kanawha County Circuit Court.

See ECF No. 1-1 at 11-20. The complaint alleges the following.

The plaintiff was employed at a facility of defendant

Gestamp West Virginia, LLC (“Gestamp”) located in South

Charleston, West Virginia, from February 2014 to April 25, 2017.

See id. ¶ 1. While at work on December 3, 2016, the plaintiff

suffered an anxiety attack stemming from her post-traumatic

stress disorder (“PTSD”) and left Gestamp’s facility by

ambulance. See id. ¶ 3. After receiving medical treatment from

her healthcare provider, the plaintiff was placed on leave under

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et

seq., from December 3 to December 16, 2016. See id. ¶ 3. On

January 17, 2017, the plaintiff suffered another anxiety attack

at work and was placed on FMLA leave from January 17 to March

20, 2017. See id. ¶¶ 5-6.

The plaintiff alleges that, in January 2017, during

her second leave period, she called defendant Scott Hughes,

Gestamp’s human resources department manager, to inform him that

she was uncertain when she would be able to return to work. See

id. ¶ 7. She alleges that Mr. Hughes informed her that she had

three months of FMLA leave to use in 2017. See id. ¶¶ 8, 13.

When the plaintiff called Mr. Hughes again on March 15, 2017,

however, he informed her that she had used up all her FMLA

leave; denied having told her that she had three months of FMLA

leave in 2017; and referenced a letter he had sent her informing

her that her FMLA leave had been used up, a letter that the

plaintiff says she did not receive until later in the day on

March 15, 2017. See id. ¶¶ 11-15. In any event, the

plaintiff’s healthcare provider certified on March 17, 2017,

that she could return to work with no limitations. See ECF No.

91-6 at 1. The plaintiff then returned to work on March 20,

2017. See id. ¶ 16.

During the plaintiff’s absence, her subordinate, team

leader Aaron Lambert, had covered her supervisory duties as a

group leader. See id. ¶ 17. Upon returning to work, defendant

Kenneth Suprenant told the plaintiff that her duties as group

leader had not changed despite alterations in the managerial

structure that had occurred during her absence. See id. ¶ 18.

However, when she returned, the plaintiff alleges that Mr.

Suprenant told her that her desk would remain Mr. Lambert’s

until another supervisor approved her return to it and that Mr.

Suprenant treated Mr. Lambert as the plaintiff’s superior. See

id. ¶¶ 20-21, 24.

On April 11, 2017, the plaintiff was at work speaking

with three of her team leaders when another Gestamp employee,

Erica Haynes, approached the group and joined the conversation.

See id. ¶¶ 26-29. The plaintiff alleges that, during this

conversation, she and Ms. Haynes “exchang[ed] positive comments

about each others’ posteriors,” and Ms. Haynes “made a comment

praising [the] [p]laintiff’s breasts.” Id. ¶¶ 29-30. The

plaintiff understood the interaction to be in jest and alleges

the conversation ended without any complaints. See id. ¶¶ 31-

32.

Soon after the conversation, Ms. Haynes submitted to

the plaintiff a request for a leave of absence, which the

plaintiff denied based on Gestamp’s staffing policies. See id.

¶¶ 33-35. Ms. Haynes was incensed by the plaintiff’s denial.

See id. ¶¶ 33, 36.

On Friday, April 21, 2017, Ms. Haynes filed with

Gestamp a complaint of sexual harassment against the plaintiff.

See id. ¶ 37. The plaintiff alleges that she heard from other

Gestamp employees that Mr. Suprenant had “coached” Ms. Haynes to

file the complaint. Id. ¶ 39. Neither Mr. Suprenant nor other

Gestamp supervisors discussed the complaint with the plaintiff

until Monday, April 24, 2017, see id. ¶¶ 41-45, and the

plaintiff supervised Ms. Haynes during the intervening weekend

shift, see id. ¶ 40, 43.

On April 24, 2017, the plaintiff confronted Mr.

Suprenant after hearing of the complaint from one of her team

leaders, and he moved their conversation to Mr. Hughes’ office,

where the plaintiff met with Mr. Suprenant, Mr. Hughes, and two

other Gestamp employees. See id. ¶¶ 44-47. The plaintiff asked

whether they were investigating the comments the plaintiff had

made to Haynes, did not deny making the comments, and gave them

context regarding the conversation in which the comments had

been made. See id. ¶ 48. Gestamp terminated the plaintiff’s

employment the next day, April 25, 2017, for her sexual

harassment of Ms. Haynes. See id. ¶ 49.

The plaintiff alleges that, while she worked at

Gestamp, she had filed a complaint of sexual harassment against

her supervisor, Barry Holstein.1 See id. ¶ 52. The plaintiff

states that Mr. Holstein aggressively pursued a sexual

relationship with her and that, after she declined his

invitation to go out for drinks and dinner, he retaliated

against her for rejecting his advances by making her time at

work unpleasant. See id. ¶¶ 52-55. The plaintiff alleges that

she twice complained about Mr. Holstein’s conduct to the human

resources department manager – at that time, Nancy Paxton – but

that her complaints did not result in any action. See id. ¶¶

56-60. She also alleges that she twice took her complaints to

Paul Lezanic, the plant manager at the time, but that these

complaints also resulted in no action. See id. ¶ 60-62. When

she later took her complaint to a new plant manager, Walter

Thomas, he directed her to draft a formal complaint so that the

human resources department could investigate. See id. ¶¶ 63-65.

1 Mr. Holstein was named as a defendant in the plaintiff’s

complaint but was dismissed after the parties jointly stipulated

to his dismissal. See ECF No. 112; ECF No. 113.

She drafted a formal complaint and provided it to Mr. Hughes in

the human resources department. See id. ¶¶ 65-66. Mr. Hughes

later told her that the allegations in her complaint against Mr.

Holstein could not be substantiated, and the human resources

department took no action on the complaint. See id. ¶ 66.

The plaintiff alleges that Gestamp terminated her

employment “due to her medical leave,” her “disability,” and her

“gender,” in violation of the West Virginia Human Right Act

(“WVHRA”), W. Va. Code § 5-11-1 et seq, and that Mr. Suprenant

and Mr. Hughes aided and abetted, or conspired with, Gestamp in

its discrimination against her based on her disability and

gender. Id. ¶¶ 71-72, 74.

B. District court proceedings

The parties proceeded with litigation in Kanawha

County Circuit Court until the defendants removed the action to

this court on February 21, 2020. See ECF No. 1. The plaintiff

filed motions seeking leave to amend her complaint to assert a

number of additional claims. See ECF No. 19; ECF No. 21; see

also ECF No. 27.2 In an August 27, 2020 memorandum opinion and

2 In both motions, the plaintiff also asked the court to remand

the action to state court, see ECF No. 19; ECF No. 21. The

court had previously denied a separate motion to remand filed by

the plaintiff, see ECF No. 5; ECF No. 9, and the court denied

order, the court denied the motions based on undue delay and

prejudice to the defendants. See ECF No. 44. The court

explained, however, that, although “[t]he complaint does not

enumerate specific counts or causes of action,” id. at 1, “the

asserted claims in this case are violations of the [WVHRA] for

gender and disability discrimination, and violations of the FMLA

for interference with the plaintiff’s FMLA rights and for

wrongful termination or retaliatory discharge in contravention

of the FMLA” and that “[a] claim for failure to accommodate

disability may plausibly be understood as a subset of disability

discrimination,” id. at 11.

The parties proceeded with discovery in this court,

and the defendants filed the current motion for summary judgment

on November 6, 2020. See ECF No. 75. The plaintiff took a

kitchen-sink approach to opposing the summary-judgment motion,

attaching 35 exhibits to her response brief, see ECF Nos. 91-1

through 91-25; ECF No. 92-1; ECF No. 92-2; ECF Nos. 94-1 through

94-15; ECF No. 95-1, some of which the court has noted are not

even cited in the brief, see ECF No. 116, and separately filing

seven affidavits from six individuals, which are cited in her

response brief, see ECF No. 78; ECF No. 81; ECF No. 83; ECF No.

these two subsequent requests as well, see ECF No. 44.

84; ECF No. 85; ECF No. 86; ECF No. 87.

The defendants filed a motion to strike certain

portions of the plaintiff’s evidentiary submission in support of

her opposition to summary judgment. See ECF No. 105. In an

April 2, 2021 memorandum opinion and order, the court concluded

that it would strike the seven separately-filed affidavits

relied upon by the plaintiff. See ECF No. 116 at 7-21, 31-32

(striking ECF No. 78, ECF No. 81, ECF No. 83, ECF No. 84, ECF

Nos. 85, ECF No. 86, and ECF No. 87). The court also concluded

that, although it would not strike the remaining documents

challenged by the defendants’ motion, it would not consider

three of them (ECF No. 91-15, ECF No. 91-16, and ECF No. 95-1)

in deciding the defendants’ summary-judgment motion and would

only consider the fourth (ECF No. 94-8) to the extent it

supported factual assertions that the defendants do not dispute.

See id. at 22-32.

The defendants’ motion is now fully briefed, and the

disputes concerning the evidence that will be considered in

deciding the motion have been resolved. The motion is ready for

disposition.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that 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). A fact is “material” if it “might affect the

outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. In deciding a

motion for summary judgment, the court must view the evidence

and all reasonable inferences drawn therefrom in a light most

favorable to the non-moving party. See Tolan v. Cotton, 572

U.S. 650, 651, 657 (2014) (per curiam).

III. Discussion

A. Disability-discrimination and gender-discrimination claims

Under the WVHRA, it is unlawful for an employer to

discriminate against an individual based on the individual’s

gender or disability with respect to the tenure, terms,

conditions, or privilege of employment, so long as the

individual is able and competent to perform the services

required. See W. Va. Code. §§ 5-11-3(h), 5-11-9(1).

“Discrimination claims brought under the WVHRA are

governed by the burden-shifting framework of Title VII of the

Civil Rights Act of 1964, laid out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–04 (1973).” Bartos v. PDC Energy,

Inc., 275 F. Supp. 3d 755, 760 (N.D.W. Va. 2017) (internal

citation omitted) (citing Shepherdstown Volunteer Fire Dep’t v.

State ex rel. State of W. Va. Human Rights Comm’n, 309 S.E.2d

342, 352 (W. Va. 1983)).3 Under that framework, a plaintiff

bears the initial burden of establishing a prima facie case of

employment discrimination. See id. (citing Conaway v. E.

Associated Coal Corp., 358 S.E.2d 423, 430 (W. Va. 1986)); see

also Skaggs, 479 S.E.2d at 581. If the plaintiff establishes a

prima facie case, “the burden of production then shifts to the

employer to come forward with a legitimate, nondiscriminatory

reason for its actions.” Skaggs, 479 S.E.2d at 582; see also

Bartos, 275 F. Supp. 3d at 760. If the employer meets this

burden of production, the burden shifts “once again [to] the

employee to prove that the proffered legitimate reason is a mere

3 A plaintiff may also proceed by providing direct proof of

discriminatory animus. See Woods v. Jefferds Corp., 824 S.E.2d

539, 547 (W. Va. 2019) (citing Skaggs v. Elk Run Coal Co., 479

S.E.2d 561, 581 (W. Va. 1996)). The plaintiff here does not

appear to proceed under the direct method of proof. See id. 547

& n.8 (noting that direct proof is rare because employers no

longer announce that they are acting with discriminatory intent)

(citing Skaggs, 479 S.E.2d at 582 & n.21).

pretext rather than the true reason for the challenged

employment action.” Skaggs, 479 S.E.2d at 582; see also Bartos,

275 F. Supp. 3d at 761.

1. Disability-discrimination claim

a. Prima facie case. The defendants argue that the

plaintiff has failed to establish a prima facie case of

disability discrimination. A plaintiff establishes a prima

facie case of disability discrimination by showing “that [s]he

(1) is a . . . person with a disability, (2) is qualified to

perform the essential function of the job, (3) and . . . has

suffered an adverse employment action under circumstances from

which an inference of unlawful discrimination arises.” Marincil

v. Saminco, Inc., 662 F. Supp. 2d 577, 581 (S.D.W. Va. 2009)

(citing Skaggs, 479 S.E.2d at 581 n.22).

The defendants first argues that the plaintiff has not

shown that she has a disability within the meaning of WVHRA.

Although the defendants note that the plaintiff alleges that she

suffers from anxiety and PTSD, they argue she has failed to

present evidence showing that these conditions meet the WVHRA’s

definition of disability. See ECF No. 76 at 7-8, 13-14, 16 n.5;

see also ECF No. 97 at 16. Under the WVHRA, a disability is

defined as “(1) [a] mental or physical impairment which

substantially limits one or more of such person’s major life

activities[,] . . . includ[ing] functions such as . . .

working,” “(2) [a] record of such impairment,” or “(3) [b]eing

regarded as having such an impairment.” W. Va. Code § 5-11-

3(m).

Although the plaintiff cites evidence demonstrating

that she suffered anxiety attacks at work, one of which required

her to be removed from the workplace by ambulance, and that her

healthcare provider ordered her to take a medical leave of

absence from work to treat anxiety stemming from PTSD, see ECF

No. 90 at 6, she presents no argument that this evidence

demonstrates that she is disabled under any of the three

definitions provided by the WVHRA. Instead, she simply asserts

that “[i]t cannot be disputed” that she has a disability. Id.

at 28.

The court concludes that the plaintiff has failed to

establish the disability element of her prima facie case.

Although PTSD can in some circumstances constitute an impairment

that substantially limits a major life activity, and thus meet

the first definition of disability under § 5-11-3(m), see

Peaslee v. Citizens Conservation Corp., Inc., No. 5:16-cv-11133,

2018 WL 296004, at *5-6 (S.D.W. Va. Jan. 4, 2018), the burden is

on the plaintiff to show – by evidence and argument – that her

PTSD substantially limits a major life activity or that she is

disabled under the other definitions in § 5-11-3(m). The

plaintiff has not attempted to make that showing here, and the

court cannot do the legwork for her. See Clayton v. Nationwide

Mut. Ins. Co., 260 F. Supp. 3d 514, 521 (D.S.C. 2017) (“The

court has no obligation to fashion arguments for a party or to

further develop a party’s argument when it is wholly conclusory,

unexplained, and unadorned with citation to legal authority[,] .

. . [for, by] do[ing] so, the court edges into the impermissible

advocatory role of argument-creator.”).

b. Pretext. Even if the plaintiff had met her burden

to establish a prima facie case of disability discrimination,

the court agrees with the defendants that the plaintiff has not

met her burden to show that the defendants’ proffered reason for

the plaintiff’s termination – that she violated Gestamp’s

sexual-harassment policy4 – was pretextual.

First, the plaintiff attempts to show pretext by

arguing that the defendants relied on an innocuous incident to

drum up allegations of sexual harassment against her. See ECF

No. 9-10, 34-35. For instance, she cites her own deposition

4 The plaintiff does not argue that the defendants have failed to

meet their burden to proffer a legitimate and non-discriminatory

reason for her termination. She instead argues that their

proffered reason was pretextual.

testimony discussing the incident to demonstrate that the

comment she made to Ms. Haynes was “mild” and that Ms. Haynes

had made similar comments to her during the conversation.5 ECF

No. 90 (citing ECF No. 75-2 at 18). However, when assessing

whether an employer’s reason for an adverse action was

pretextual, the issue is whether the decisionmaker “honestly

believed” that the employee deserved to be discharged for the

proffered reason. See Holland v. Washington Homes, Inc., 487

F.3d 208, 217-18 (4th Cir. 2007); see also Azimi v. Jordan’s

Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006) (“In assessing

pretext, a court’s focus must be on the perception of the

decisionmaker, that is, whether the employer believed its stated

reason to be credible.” (internal quotation marks omitted)). As

5 In the plaintiff’s version of the incident, while she was

conversing with a group of co-workers, one of them commented

that she “was looking really good after [having] come back from

FMLA [leave].” ECF No. 75-2 at 18. The plaintiff responded

with a self-deprecating remark about her “butt,” causing the

group to laugh. Id. At that moment, Ms. Haynes “walked up” and

asked “what was funny.” Id. When the plaintiff relayed her

remark again, Ms. Haynes “looked around at” the plaintiff and

told her “there was nothing wrong with her.” Id. The plaintiff

responded, “‘Well, maybe one day I’ll have a butt like yours.’”

Id. In reply, Ms. Haynes “popped her butt out,” “started

rubbing it,” and said, “‘I know it’s nice. I ride horses to

keep in shape.” Id. Ms. Haynes further commented, “‘But if I

had boobs like yours, I would have it made.’” Id. The

conversation ended soon afterward. See id. The plaintiff

acknowledges, however, that the foregoing is not exactly the

version of the incident that she reported to the human resources

department investigators. See id.

the defendants point out, unrebutted evidence shows that Mr.

Hughes and another Gestamp supervisor, Rusty Mossberger, the

decisionmakers in this instance, credited the version of events

presented by Ms. Haynes – who described the plaintiff’s conduct

as more egregious and reported that she did not make the

reciprocal comments alleged by the plaintiff6 – because Ms.

Haynes’ version was corroborated by the conversation’s other

participants. See ECF No. 76 at 11-13 (citing ECF No. 75-6 ¶¶

18, 20, 21; id. at 48; ECF No. 75-7 ¶¶ 8, 10; id. at 9; ECF No.

75-8 ¶¶ 7, 8; ECF No. 75-14 ¶¶ 9, 10; ECF No. 75-15 ¶ 4, 6; ECF

No. 75-18 at 15, 17-18, 22-23). The plaintiff does not argue,

or point to any evidence demonstrating, that Mr. Hughes and Mr.

Mossberger did not honestly believe Ms. Haynes’ version of the

incident and that the plaintiff should be discharged for the

incident. See Holland, 487 F.3d at 217 (explaining that the

plaintiff failed to demonstrate that his employer’s decision to

6 In Ms. Haynes’ version of the incident, the plaintiff “came up

to [her] and told [her] that [Ms. Haynes] had a nice butt” and

“that she wish[ed] that she had [Ms. Haynes’] butt.” ECF No. 14

¶ 6, 9. “Right after she ma[de] the comment,” “the plaintiff

also “strok[ed] [Ms. Haynes’] hair.” Id. The plaintiff had

stroked Ms. Haynes’ hair on at least three earlier occasions,

and Ms. Haynes had previously asked her to not do it again. Id.

¶¶ 3, 5-6. Although the plaintiff’s comment “made [Ms. Haynes]

uncomfortable,” she “responded that [she] rides horses to keep

in shape.” Id. ¶ 6. Ms. Haynes says she never “made [a]

comment to [the plaintiff] regarding her chest” or “ma[d]e any

comments about the plaintiff’s anatomy.” Id. ¶ 10.

discharge him was pretextual because “the uncontested evidence

established that . . . []the decisionmaker[] honestly believed

that [the plaintiff] deserved to be discharged for threatening

[his supervisor], regardless of whether [the plaintiff] did in

fact issue the threats”).

Similarly, the plaintiff argues that the real reason

Ms. Haynes reported the incident was because the plaintiff had

earlier denied Ms. Haynes’ request for leave. See ECF No. 90 at

10, 34. The plaintiff fails to explain, however, how any

ulterior motives on the part of Ms. Haynes – who had no role in

deciding whether to terminate the plaintiff’s employment –

demonstrates that Mr. Hughes and Mr. Mossberger – the

decisionmakers in this case – did not honestly believe that the

plaintiff engaged in the conduct that they determined merited

her termination.

The plaintiff further points to evidence that she

claims shows Mr. Suprenant “talked [Ms. Haynes] into going to

[the human resource department] to file the complaint against

[the plaintiff]” and that Mr. Hughes drafted statements

regarding the incident, which Ms. Haynes later signed. ECF No.

90 at 35. The evidence that the plaintiff relies on, however,

shows that, although Mr. Suprenant approached Ms. Haynes because

she appeared to be in an emotional state, she did not report the

incident to him at that time. See ECF no. 75-14 ¶ 7. Instead,

several days later, Ms. Haynes approached Mr. Suprenant to

report the incident, and Mr. Suprenant told her she should

discuss the incident with the human resources department and

“walked [her] to [Mr.] Hughes’ office.” Id. ¶ 8; see also id. ¶

12. The evidence also shows that Mr. Hughes drafted short

memoranda describing his two interviews with Ms. Haynes and that

Ms. Haynes “read” and “signed” them because “[t]he information

in [them] is true and correct to the best of [her] knowledge.”

Id. ¶ 11; see also id. at 6-7. To the extent the plaintiff

argues this evidence shows that Mr. Suprenant and Mr. Hughes

contrived to bring a sexual-harassment claim against her, it is

not reasonable to infer such contrivance from the evidence

presented. More importantly, the plaintiff fails to explain how

the facts that Mr. Suprenant encouraged Ms. Haynes to report the

incident or that Mr. Hughes drafted interview memoranda for Ms.

Haynes to review and sign show that the decisionmakers here did

not honestly believe Ms. Haynes’ account of the incident or that

the plaintiff’s conduct warranted termination.

Second, the plaintiff attempts to show pretext by

arguing that Gestamp rarely enforced its sexual-harassment

policy and thus that its decision to do so in her case was a

ruse to conceal the discriminatory reasons for her termination.

To demonstrate that Gestamp rarely enforced its policy, the

plaintiff relies chiefly on affidavits from individuals who

attest to alleged violations of the policy that they claim

Gestamp did not investigate or otherwise address. See ECF No.

90 at 12-25, 35 (citing ECF No. 78; ECF No. 83; ECF No. 84; ECF

No. 85; ECF No. 86; ECF No. 87). She also relies on a complaint

filed in state court against Gestamp by another former employee.

See id. at 21-22 (citing ECF No. 95-1). In its April 2, 2021

memorandum opinion and order, the court determined that it would

strike the affidavits and disregard the complaint on which the

plaintiff relies. See ECF No. 116. Accordingly, the court will

not consider these documents in assessing whether the plaintiff

has presented evidence sufficient to create a genuine dispute

regarding Gestamp’s enforcement of its sexual-harassment policy.

Aside from the affidavits and state-court complaint

that the court will not consider, the plaintiff relies on her

own deposition testimony regarding complaints against three

other Gestamp employees, namely, Bill Hardman, Mark Chandler,

and Mr. Holstein. See ECF No. 90 at 12; see also id. at 3-5, 7.

With respect to the complaints against Mr. Hardman and Mr.

Chandler, the plaintiff testified that she or other employees

complained about being sexually harassed by them, that Ms.

Paxton, the human resources department manager at the time,

investigated the complaints, and that Ms. Paxton’s

investigations did not result in termination of their

employment. See ECF No. 75-1 at 19-20. As the defendants point

out, however, these complaints were made before Mr. Hughes

became the human resources department manager, see ECF No. 75-6

¶¶ 1, 11, and there is no evidence that either Mr. Hughes or Mr.

Mossberger, the decisionmakers in this case, were aware of the

complaints.

The plaintiff’s arguments regarding non-enforcement of

Gestamp’s sexual-harassment policy against other employees calls

to attention the use of comparator evidence in employment

discrimination cases. Ever since the emergence of the indirect

method of proof outlined by McDonnell Douglas, “federal courts

now routinely rely on comparator evidence when deciding whether

an adverse employment action was driven by a discriminatory

motive,” in large part because “the task of identifying whether

an employer has treated more favorably a person who is situated

similarly to the plaintiff (but for the characteristic at issue)

is a relatively straightforward and manageable inquiry.” Laing

v. Fed. Express Corp., 703 F.3d 713, 719-20 (4th Cir. 2013).

However, “[d]isputes abound as to who is a valid comparator and

who is not.” Id. at 720. “[T]o establish a valid comparator,

the plaintiff must produce evidence that the plaintiff and

comparator 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.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-

24 (4th Cir. 2019) (internal quotation marks, brackets, and

ellipsis omitted) (quoting ultimately Mitchell v. Toledo Hosp.,

964 F.2d 577, 583 (6th Cir. 1992)). “Where a plaintiff attempts

to rely on comparator evidence to establish circumstances giving

rise to an inference of unlawful discrimination, . . . ‘the

similarity between comparators must be clearly established in

order to be meaningful.’” Swaso v. Onslow Cty. Bd. of Educ.,

698 F. App’x 745, 748 (4th Cir. 2017) (internal brackets and

ellipsis omitted) (quoting Lightner v. City of Wilmington, 545

F.3d 260, 265 (4th Cir. 2008)).

Decisions from the West Virginia Supreme Court of

Appeals appear to be consistent with federal law regarding

reliance on comparator evidence. See, e.g., Syl. pt. 2, State

ex rel. W. Va. Human Rights Comm’n v. Logan-Mingo Area Mental

Health Agency, Inc., 329 S.E.2d 77, 79 (W. Va. 1985). And,

federal district courts have used the same analysis in assessing

WVHRA employment discrimination claims. See Wright v. Int’l

Ass’n of Sheet, Metal, Air, Rail & Transp. Workers Local Union

No. 33, No. 2:19-cv-00753, 2020 WL 2751897, at *3-4 (S.D.W. Va.

May 27, 2020); Lasure v. Sam’s E., Inc., No. 1:14CV127, 2015 WL

8664280, at *4 n.6, 6-9 (N.D.W. Va. Dec. 11, 2015); see also

Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 159 (W. Va.

1995) (noting that the Supreme Court of Appeals has

“consistently held that cases brought under the West Virginia

Human Rights Act are governed by the same analytical framework

and structures developed under Title VII” (internal citation

omitted)).

To demonstrate pretext by pointing to Gestamp’s

unequal enforcement of the sexual-harassment policy, the

plaintiff must show that the decisionmaker who enforced the

policy against her was aware of others violating the same policy

and did not enforce the policy against them to the same extent.

See Opsatnick v. Norfolk S. Corp., 335 F. App’x 220, 222-23 (3d

Cir. 2009); Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir.

1989); Duggan v. Sisters of Charity of Providence Hosp., 663 F.

Supp. 2d 456, 469-70 (D.S.C. 2009). Here, the plaintiff has

failed to show either that Mr. Hughes and Mr. Mossberger, the

decisionmakers who enforced Gestamp’s sexual-harassment policy

against her, were aware of Mr. Hardman’s and Mr. Chandler’s

alleged misconduct or that they had any role in deciding to

treat Mr. Hardman and Mr. Chandler more favorably than they

treated the plaintiff. Accordingly, Mr. Hardman and Mr.

Chandler are inapt comparators for purposes of demonstrating

pretext. See Forrest v. Transit Mgmt. of Charlotte, Inc., 245

F. App’x 255, 257 (4th Cir. 2007) (“If different decision-makers

are involved, employees are generally not similarly situated.”).

As for Mr. Holstein, the plaintiff points to evidence

of numerous instances of what she views as his mistreatment of

her while he was her direct supervisor. See ECF No. 90 at 3-5,

7, 12. Although the plaintiff notes that she brought her

complaints to several Gestamp supervisors, including two plant

managers, she offers no indication of Mr. Hughes’ or Mr.

Mossberger’s involvement in investigating her complaints or in

determining how Mr. Holstein should be treated. See id. at 3-5,

7. Although the plaintiff argues that she complained that Mr.

Holstein had sexually harassed her, she does not identify who

this complaint was made to. See id. at 12.

The defendants, on the other hand, present unrebutted

evidence that Mr. Hughes became involved with the plaintiff’s

complaints against Mr. Holstein only when the plaintiff provided

Mr. Hughes with three written complaints between October 26 and

November 3, 2016.7 See ECF No. 76 at 5-6 (citing ECF No. 75-1 at

7 Mr. Mossberger apparently had no involvement with the

plaintiff’s complaints against Mr. Holstein.

31-32, 36, 161-66, 176-81; ECF No. 75-6 ¶ 13; ECF No. 75-10 ¶

8). Mr. Hughes states in his affidavit that the written

complaints he received from the plaintiff did not allege that

Mr. Holstein had sexually harassed her, see ECF No. 75-6 ¶ 13.d,

and that they largely concerned “general workplace

dissatisfaction,” ECF No. 75-18 at 18; see also id. at 29. The

defendants point to unrebutted evidence that Mr. Hughes

investigated the plaintiff’s complaints by interviewing at least

nine employees whom the plaintiff had identified, none of whom,

he determined, corroborated the plaintiff’s allegations. See

ECF No. 76 at 7 (citing ECF No. 75-6 ¶ 13; EFC No. 75-9 ¶ 14;

ECF No. 75-10 ¶ 9). Mr. Hughes therefore concluded that the

plaintiff’s complaints were unsubstantiated, and Gestamp took no

action against Mr. Holstein. See ECF No. 75-6 ¶ 13; ECF No. 75-

10 ¶ 9.

The court concludes that the plaintiff has failed to

demonstrate pretext based on her complaints against Mr.

Holstein. As the defendants argue, the plaintiff has failed to

point to evidence that she complained to Mr. Hughes that Mr.

Holstein had sexually harassed her, and Mr. Hughes has testified

that the complaints he received from the plaintiff, as he

understood them, did not contain allegations of sexual

harassment. See Drummond v. Stackley, 687 F. App’x 277, 278

(4th Cir. 2017) (rejecting argument that employer’s proffered

reasons for selecting comparator, rather than the plaintiff, for

promotion must have been pretextual based on the plaintiff’s

view that employer “could not have believed the [comparator] was

more qualified than [the plaintiff]” when the plaintiff “offered

no evidence undermining the decision makers’ perception of the

[comparator] as compared to [the plaintiff]”). Thus, Mr.

Holstein cannot serve as an apt comparator because there is no

evidence that Mr. Hughes was aware that Mr. Holstein had been

accused of violating, let alone that he had violated, the same

policy enforced against the plaintiff. See Opsatnick, 335 F.

App’x at 222-23; Jones, 874 F.2d at 1541; Duggan, 663 F. Supp.

2d at 469-70. And, as the defendants further argue, Mr.

Holstein is also an inapt comparator because, unlike the

complaint against the plaintiff, the allegations in the

complaints against Mr. Holstein were not corroborated by other

employees who Mr. Hughes interviewed. See Doke v. PPG Indus.,

Inc., 118 F. App’x 366, 369 (10th Cir. 2004) (explaining that

“[d]ifferential treatment” of an employee for whom allegations

of misconduct are substantiated as compared to employees for

whom allegations of the same misconduct are not substantiated

“is not evidence of pretext”); Duggan, 663 F. Supp. 2d at 463

(“A plaintiff charging an employer with disparate discipline

must show the decisionmaker consciously overlooked misconduct by

others outside the protected class when he disciplined [the]

plaintiff more severely.” (internal quotation marks and brackets

omitted)).

Because the plaintiff has failed to adduce sufficient

evidence to establish a prima facie case of disability

discrimination and to demonstrate that the defendants’

legitimate, non-discriminatory reasons for terminating her

employment was pretextual, the defendants are entitled to

summary judgment on her disability-discrimination claim.

2. Gender-discrimination claim

To establish a prima facie case of gender

discrimination under the WVHRA, a plaintiff must show that (1)

“she is a member of a protected class,” (2) “the employer made

an adverse decision concerning her,” and (3) “but for the

plaintiff’s protected status, the adverse decision would not

have been made.” Blankenship v. Caterpillar Global Mining, LLC,

964 F. Supp. 2d 578, 585 (N.D.W. Va. 2013). The defendants

argue that the plaintiff has not provided evidence that can

establish the third element of her prima facie case, i.e.,

“evidence which would sufficiently link [Gestamp]’s decision and

the plaintiff’s status as a member of a protected class so as to

give rise to an inference that the employment decision was based

on” her gender. Conaway, 358 S.E.2d at 429-30.

In response, the plaintiff argues that she was

terminated for violation of a sexual-harassment policy, “when

[that policy] was ignored for men.” ECF No. 90 at 28; see also

id. at 35 (“Gestamp had a pattern of favoring men over women

when it came to sexual harassment [violations].”). Thus, the

only evidence that the plaintiff relies on to demonstrate that

her gender was a but-for cause of her termination is evidence

that the sexual-harassment policy enforced against her was not

enforced against men. See Conaway, 358 S.E.2d at 429-30

(explaining that evidence of causation “could . . . come in the

form of a case of unequal or disparate treatment between members

of the protected class and others” or “by the elimination of the

apparent legitimate reasons for the decision”).

To demonstrate that Gestamp enforced its sexual-

harassment policy against her but not against men, the plaintiff

points to examples of male employees engaging in sexual

harassment without being disciplined as attested to in the

stricken affidavits, the state-court complaint, and the

plaintiff’s own deposition testimony. See ECF No. 90 at 35.

The court will not consider the examples provided in the

stricken affidavits or in the state-court complaint. With

respect to the plaintiff’s deposition testimony regarding sexual

harassment committed by Mr. Hardman, Mr. Chandler, and Mr.

Holstein, the court concludes, for the reasons set forth

previously, that none of them are comparators that can

demonstrate disparate treatment based on gender. See Duggan,

663 F. Supp. 2d at 468 (“To be similarly situated and thus

permit a valid comparison, the []male employees must have dealt

with the same supervisor[] . . . and have engaged in the same

conduct without mitigating circumstances that would distinguish

their conduct or the employer’s treatment of them for it.”).

Thus, the court concludes that the plaintiff has failed to

establish a prima facie case of gender discrimination.

Even assuming that the plaintiff had established her

prima facie case, the court concludes, for the reasons expressed

previously, that the plaintiff has failed to demonstrate that

the defendants’ legitimate, non-discriminatory reason for

terminating her employment was pretextual. Accordingly, the

defendants are entitled to summary judgment on the plaintiff’s

gender-discrimination claim.

B. Failure-to-accommodate claim

“Under West Virginia caselaw[,] [a failure-to-

accommodate claim] is generally treated as a separate cause of

action with a different test than that used for a general

[disability-]discrimination claim.” Dawson v. Kokosing Constr.

Co., Inc., No. 3:08-0287, 2009 WL 1176447, at *8 n.7 (S.D.W. Va.

Apr. 29, 2009) (citing Skaggs, 479 S.E.2d 561).8 A plaintiff

pursuing a standalone failure-to-accommodate claim under the

WVHRA must prove: “(1) [t]he plaintiff is a qualified person

with a disability; (2) the employer was aware of the plaintiff’s

disability; (3) the plaintiff required an accommodation in order

to perform the essential functions of a job; (4) a reasonable

accommodation existed that met the plaintiff’s needs; (5) the

employer knew or should have known of the plaintiff’s need and

of the accommodation; and (6) the employer failed to provide the

accommodation.” Alley v. Charleston Area Med. Ctr., Inc., 602

S.E.2d 506, 514 (W. Va. 2004) (quoting Syl. pt. 2, Skaggs, 479

8 An allegation that an employer failed to accommodate an

employee’s disability may also be understood as an adverse

action forming one of the elements of a general disability-

discrimination claim. See Dawson, 2009 WL 1176447, at *8 n.7.

In their briefing, the defendants argue that the court should

summarily dismiss the plaintiff’s failure-to-accommodate claim

because she failed to sufficiently allege any such claim in her

complaint. See ECF No. 76 at 15; ECF No. 97 at 16-17. The

court agrees that dismissal may well be appropriate on this

ground because, as the court has previously noted, “[a]ny

ambiguity or uncertainty in the [plaintiff’s] claims arises from

[the] plaintiff’s poorly-constructed complaint.” ECF No. 44 at

11. Nevertheless, because the plaintiff’s briefing treats the

defendants’ alleged failure to accommodate her alleged

disability as a standalone claim, see ECF No. 90 at 1, and

because West Virginia law provides for a separate cause of

action, the court addresses it herein as a separate claim.

S.E.2d at 568).

The defendants argue that the plaintiff failed to

present evidence supporting her failure-to-accommodate claim.

The court agrees. As discussed previously, the plaintiff has

failed to present evidence or argument that she has a disability

within the meaning of the WVHRA, and the court will not do the

legwork for her. See Clayton, 260 F. Supp. 3d at 521. For this

reason, the plaintiff cannot meet the first element of her

failure-to-accommodate claim, and summary judgment is

appropriate.

Further, the court concludes that the plaintiff has

failed to show that she has adduced evidence for the remaining

elements of her failure-to-accommodate claim. The plaintiff

seems to premise the claim on the pressure she felt to return to

work following her two anxiety attacks. See ECF No. 90 at 8

(explaining that, based on Mr. Hughes’ communications with her,

the plaintiff “was forced to get her provide[r] to allow her to

return [to work] on March 17, 2017[,] or face certain

termination”); see id. at 29 (using identical language). In

explaining how this pressure amounted to a failure to

accommodate her disability, however, the plaintiff offers only

the following argument: “[The plaintiff] was denied an

accommodation as it was clear that her physician had stated in

the FMLA documentation that [the plaintiff] would experience

flare ups [of her PTSD symptoms,] and it would be medically

necessary for [her] to be absent from work during the flare-

ups.” ECF No. 90 at 8; see also id. 29 (using identical

language); id. at 28 (asserting that there remains a genuine

dispute whether the “[d]efendant fail[ed] to accommodate [her

alleged disability] when [her] FMLA documents indicated she was

to receive time off when needed”). No further explanation or

argument is provided.

The plaintiff’s one-sentence argument is insufficient

to meet her burden at this stage. Neither her brief recitation

of the facts surrounding her return to work in March 2017, nor

her facially insufficient argument clarify, for instance, what

the essential functions of her job were, what accommodation the

plaintiff claims was required for her to perform those

functions, whether that accommodation was reasonable and

available, and whether Gestamp was aware of such an

accommodation. The court will not sift through the evidence in

order to develop arguments in this vein on the plaintiff’s

behalf. See Clayton, 260 F. Supp. 3d at 521. Because the

plaintiff has failed to present evidence to support her failure-

to-accommodate claim, the defendants are entitled to summary

judgment on that claim.

C. FMLA-interference claim

“The FMLA provides that ‘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.’” Sharif v. United Airlines, Inc., 841 F.3d 199,

203 (4th Cir. 2016) (quoting 29 U.S.C. § 2615(a)(1). “To

establish unlawful interference with an entitlement to FMLA

benefits, an employee must prove that: (1) she was an eligible

employee; (2) her employer was covered by the statute; (3) she

was entitled to leave under the FMLA; (4) she gave her employer

adequate notice of her intention to take leave; and (5) the

employer denied her FMLA benefits to which she was entitled.”

Rodriguez v. Smithfield Packing Co., Inc., 545 F. Supp. 2d 508,

516 (D. Md. 2008); accord Propst v. HWS Co., Inc., 148 F. Supp.

3d 506, 539 (W.D.N.C. 2015); Chadwell v. Brewer, 59 F. Supp. 3d

756, 766 (W.D. Va. 2014).

Further, “[i]n order to establish a claim for

interference with the exercise of FMLA rights, [the plaintiff]

must prove not only the fact of interference, but also that the

violation prejudiced her in some way.” Ranade v. BT Ams., Inc.,

581 F. App’x 182, 184 (4th Cir. 2014) (citing Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). “Such

prejudice can be proven by showing that she lost compensation or

benefits by reason of the violation, sustained other monetary

losses as a direct result of the violation, or suffered some

loss in employment status remediable through appropriate

equitable relief, such as employment, reinstatement, or

promotion.” Id. (internal quotation marks and citations

omitted).

In support of her FMLA claim, the plaintiff argues

that Mr. Hughes undercalculated the leave to which she was

entitled under the FMLA. See ECF No. 90 at 8 & n.1, 36.

Specifically, the plaintiff asserts that Gestamp was required to

calculate the plaintiff’s leave based on the average number of

hours she worked per week, which far exceeded the 40-hour

workweek that Mr. Hughes used to calculate the plaintiff’s

leave. See id. (citing ECF No. 91-7; ECF No. 91-10). Based on

his miscalculation, the plaintiff argues, Mr. Hughes incorrectly

informed her that her FMLA leave had been used up by March 17,

2020, causing her to obtain a return-to-work authorization from

her healthcare provider so that she could return to work on

March 20, 2017. See id. at 7-8, 36-37 (citing ECF No. 75-2 at

6; ECF No. 91-6; ECF No. 91-7).

The defendant argues that the plaintiff has failed to

adduce evidence that she was entitled to any FMLA leave, or that

the defendants denied her any FMLA leave to which she was

entitled, after she obtained her return-to-work authorization

from her healthcare provider. The court agrees. The

plaintiff’s claim is based on her assertion that Mr. Hughes’

miscalculation of her FMLA leave time caused her to return to

work on March 20, 2017, even though she remained eligible to

remain on FMLA leave for roughly another month. However, the

plaintiff’s healthcare provider certified that she could return

to work with no limitations on March 17, 2017, see ECF No. 91-6

at 1, and the plaintiff has advanced no evidence suggesting she

remained eligible for FMLA leave beyond that date. See Pivac v.

Component Servs, & Logistics, Inc., 570 F. App’x 899, 903 (11th

Cir. 2014) (concluding, in the context of an FMLA-interference

claim, that an employee was ineligible for FMLA leave in part

because her doctor had returned her to work without

restrictions); Mayland v. St. Joseph Med. Ctr., No. Civ. JFM-00-

2981, 2001 WL 708815, at *1 (D. Md. June 11, 2001) (granting

summary judgment on FMLA-interference claim “[i]n the absence of

any evidence that any doctor thought [the plaintiff] was not fit

to return to work” during the period for which a right to leave

was alleged (citing 29 U.S.C. § 2612(a)(1)(D))); Dodgens v. Kent

Mfg. Co., 955 F. Supp. 560, 564-65 (D.S.C. 1997) (granting

summary judgment on FMLA-interference claim when “it is

undisputed that [the plaintiff] was permitted to take leave

until being certified to return to work without restrictions by

his doctor”).9

Further, the court concludes that the plaintiff has

failed to present evidence showing that she was prejudiced in

some way by the alleged violation. See Ranade, 581 F. App’x at

184. The defendants point out that there is no dispute that the

plaintiff returned to the same position, along with the same

compensation and benefits, she held before taking leave. See

ECF No. 76 at 22-23. In response, the plaintiff argues only

that she “was prejudiced [because] she failed to receive full

FMLA benefits.” ECF No. 90 at 36. This conclusory argument

misses the mark. The plaintiff has not identified any “lost

compensation or benefits” or “other monetary losses” stemming

from the alleged violation. Ranade, 581 F. App’x at 184. Nor

has she identified any “loss in employment status remediable

through appropriate equitable relief.” Id. Rather, she argues

that she should have been accorded a longer leave period, an

argument that the court has already rejected and that, in any

event, does not present the kind of prejudice required to

sustain an FMLA-interference claim. See id.

9 The court notes in this regard that the plaintiff acknowledged

that she was planning on asking her healthcare provider for

return-to-work authorization before she was aware that Mr.

Hughes had determined that her FMLA leave had been used up. See

ECF No. 75-2 at 6.

Because the plaintiff has failed to present evidence

that she was denied FMLA leave to which she was entitled or that

the defendants’ alleged interference in the exercise of her FMLA

rights resulted in cognizable prejudice, the defendants are

entitled to summary judgment on the plaintiff’s FMLA-

interference claim.

D. FMLA-retaliation claim

“The FMLA prohibits employers from discriminating

against an employee for exercising her FMLA rights.” Hannah P.

v. Coats, 916 F.3d 327, 347 (4th Cir. 2019) (citing 29 U.S.C. §

2615(a)(2)). “Courts analyze FMLA retaliation claims . . .

under the McDonnell Douglas burden-shifting framework.”10 Id.

“The McDonnell Douglas framework requires the plaintiff first to

establish a prima facie case of FMLA retaliation by proving

three elements: (1) ‘the plaintiff engaged in a protected

activity; (2) her employer took an adverse employment action

against her; and (3) there was a causal link between the two

events.”’’ Fry, 964 F.3d at 244-45 (brackets omitted) (quoting

Hannah P., 916 F.3d at 347). “Then, the burden shifts to the

10 A plaintiff pursuing an FMLA-retaliation claim may also

proceed under the direct method of proof, see Fry v. Rand

Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020). The plaintiff

here, however, appears to proceed under the indirect method,

applying the burden-shifting framework. See ECF No. 90 at 37.

defendant to produce ‘a legitimate, nonretaliatory reason for

taking the employment action at issue.’” Id. at 245 (quoting

Hannah P., 916 F.3d at 347). “Lastly, the plaintiff is given a

chance to prove that the employer’s explanation was false and a

pretext for retaliation.” Id.

Here, the plaintiff argues, in a single sentence, that

she “engage[d] in protected activity” by “[]taking and/or

requesting . . . FMLA leave[]”; that Gestamp “took adverse

action against her” by “[]fail[ing] to allow [her] all [her]

benefits,” “terminat[ing] her [employment],” and “retaliat[ing]

against her for requesting FMLA leave”; and that these “adverse

action[s] [were] ca[us]ally connected to [her] protected

activity.” ECF No. 90 at 37. In the next sentence, the

plaintiff argues that the “[d]efendants[’] explanation” for its

actions, “if any, is pretext for FMLA retaliation.” Id. In

support of this argument, the plaintiff appears to rely only on

her view that the comment she made to Ms. Haynes was an

“extremely weak reason for her termination.” Id. at 38.

The defendant argues that the plaintiff has failed to

present evidence showing a causal connection between her

requesting and taking FMLA leave and Gestamp’s decision to

terminate her employment. The court agrees. The plaintiff

provides only the conclusory argument that a causal connection

exists, without providing any further explanation or citing any

evidence. A single-sentence argument unadorned by citation to

the record or relevant legal authority is not sufficient to

establish the requisite prima facie case at this stage. See

Clayton, 260 F. Supp. 3d at 521.

The defendants also argue that they have presented a

legitimate, non-discriminatory reason for terminating the

plaintiff’s employment – her violation of Gestamp’s sexual-

harassment policy – and that the plaintiff has failed to present

evidence that the proffered reason was pretextual. The court

once again agrees. The plaintiff presents a conclusory single-

sentence argument and fails to meaningfully address the evidence

in the record or to support her argument with citation to legal

authority. This is again insufficient to demonstrate pretext.

See id. And, to the extent the plaintiff relies on her

arguments regarding pretext addressed to other claims, the

court, for the reasons expressed earlier, concludes that she has

failed to demonstrate pretext.

Accordingly, the defendants are entitled to summary

judgment on the plaintiff’s FMLA-retaliation claim.

Iv. Conclusion

For the foregoing reasons, it is ORDERED that the

defendants’ motion for summary judgment (ECF No. 75) be, and

hereby it is, granted. It is further ORDERED that this action

be, and hereby it is, dismissed.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: August 11, 2021

- Bb,

Jo . Copenhaver, Jr.

Senior United States District Judge

38