Coffman v. Nexstar Media Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

LEANNA JEAN COFFMAN,

Plaintiff,

v. CIVIL ACTION NO. 5:22-cv-00396

NEXSTAR MEDIA, INC.

a Delaware Corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is Defendant Nexstar Media, Inc.’s (“Nexstar”) Motion for Summary

Judgment [ECF 26], filed August 7, 2023. Plaintiff Leanna Jean Coffman responded in opposition

[ECF 28] on August 21, 2023, to which Nexstar replied [ECF 30] on August 28, 2023.1

I.

From February 17, 2020, until August 19, 2022, Ms. Coffman was employed by

Nexstar as an Account Executive at Nexstar’s WVNS 59News station. [ECF 26-2]. In 2021, Ms.

Coffman became pregnant with twins and eventually developed related complications. In late

November or early December 2021, Ms. Coffman was diagnosed with placenta previa, which causes

severe bleeding and was placed on bedrest. Given the bedrest restriction, Ms. Coffman requested to

work remotely. Nexstar approved the request.

1Also pending is Ms. Coffman’s Motion for Leave to Supplement Record [ECF 31], which

requests that two pages of Al Sandubrae’s deposition that were inadvertently omitted be added to

In early January 2022, Ms. Coffman’s condition worsened. She was life-flighted to

Charleston Area Medical Center and hospitalized for the remainder of her pregnancy. Upon

Nexstar’s approval, Ms. Coffman continued to work remotely from her hospital bed until the birth

of her twins. During this time period, Ms. Coffman testified her supervisor and Nexstar’s local sales

manager Dennie Large had informed her Nexstar was “trying to keep [her] off FMLA”2 so she could

continue working remotely and retain access to her accounts. [ECF 26-7, Coffman Depo. at 49:20-

50:4]. Ms. Coffman conceded, however, she did not want to take FMLA leave at this time inasmuch

as remote work permitted her to retain her eligibility for FMLA leave until after her twins were born.

[Id. at 49:6-50:7]. In total, Ms. Coffman worked remotely for Nexstar for approximately eight

weeks.3

On February 23, 2022, Ms. Coffman’s twins were delivered via Cesarean section.

She applied for and was given twelve weeks of FMLA leave beginning that day. Unbeknownst to

her at that time, however, an attending physician cut her ureter. As a result, she developed numerous

complications after the twins’ birth, including infections, hospitalizations, and multiple surgeries.

On March 4, 2022, Ms. Coffman underwent surgery to repair her ureter. A nephrostomy tube was

inserted into her kidney. It was designed to drain urine into a nephrostomy bag on the outside of her

body. The tube and bag caused Ms. Coffman significant pain and discomfort. They also restricted

her ability to drive and stand for extended periods. Ms. Coffman was initially told she would have

the tube for three months; that time frame was extended due to the extensive ureter damage. On

2“FMLA” refers to leave provided under the Family Medical Leave Act, 29 U.S.C. § 2601,

et seq.

3It is undisputed Ms. Coffman and other Nexstar Account Executives also worked remotely

during the COVID-19 pandemic.

March 10, 2022, Ms. Coffman was approved for short-term disability benefits after exhausting her

paid leave. [ECF 26-12]. Ms. Coffman remained on FMLA leave during this time.

On April 3, 2023, Mr. Large inquired with Ms. Coffman via text message about her

condition and asked “[h]ow much more time” she had with her twins. [ECF 26-14 at 2-3]. Ms.

Coffman responded “[I] think six weeks[;] I don’t know[;] the issue is I have to have another

surgery.” [Id. at 3]. Presumably, Ms. Coffman was indicating she had approximately six weeks left

of FMLA leave but was expressing concern about having to undergo a second surgery that had been

scheduled for June 2, 2022, to replace her nephrostomy tube. [ECF 26-15]. On May 17, 2022, Ms.

Coffman exhausted her twelve weeks of FMLA leave. [ECF 28-2]. Although disputed by the parties,

Ms. Coffman insists she spoke with Mr. Large in “mid to late April [or] May.” [ECF 26-7, Coffman

Depo. at 102:8-21]. She testified she asked about returning to work remotely, inasmuch as she “had

worked from a hospital bed and from bedrest” prior to her twins’ birth. [Id.] Ms. Coffman further

testified Mr. Large promised to “run it up the flagpole.” [Id.]. She contends Nexstar never responded.

[ECF 28 at 2]. According to an April 18, 2022, “UNUM Disability and FMLA Medical

Certification” one of Ms. Coffman’s physicians predicted she could return to work on June 27, 2022,

assuming the June 2, 2022, surgery produced no complications and her urologist cleared her return.

[ECF 26-15]. Nexstar knew Ms. Coffman’s tentative June 27, 2022, return to work date. [ECF 26-

16 at 2].

On June 2, 2022, Ms. Coffman had surgery to replace the nephrostomy tube. On June

28, 2022, Nexstar’s Human Resources Assistant Cyndi Patrick sent an email to Nexstar’s Leave

Coordinator, Jennifer Vansau, inquiring if she “had heard from UNUM in regards to if [Ms.

Coffman] is coming off [short-term disability] and released to return to work or if she is unable to

then we term?” [ECF 26-16 at 2]. Ms. Vansau replied UNUM had Ms. Coffman’s return date as

June 27, 2022, “however, per Nexstar’s policy, we require the employee to provide us with a return

to work note.” [Id.]. Ms. Vansau further explained the return to work note “must be on the doctor’s

letterhead with the doc[’]s signature, and the date [Ms. Coffman] is cleared to return to work.” [Id.].

Ms. Vansau instructed Ms. Patrick to contact Ms. Coffman and, if contact was unsuccessful, “to

reach out to [her] [human resources] contact for further assistance.” [Id.].

At some later, unspecified time, Ms. Patrick called Ms. Coffman. [Id. at 3]. She

explained her short-term disability had ended June 27, 2022; Ms. Coffman replied, “they’re

extending it [because] I still have the tube,” and she informed Ms. Patrick she was unable to return

to work. [Id.]. Ms. Coffman added her short-term disability would be extended through “August 20

something.” [Id.]. Ms. Patrick agreed Ms. Coffman was indeed still eligible for short-term disability;

she added, however, the FMLA leave expired at the end of twelve weeks, with “four extra weeks of

leave” added thereto by Nexstar. [Id.]. According to Ms. Patrick, Ms. Coffman then “interrupted and

said [‘]well do you want to talk to my lawyer,[’]” to which Ms. Patrick replied “no,” she “had nothing

to do with that” and advised Ms. Coffman to “contact Corporate and let them know.” [Id.]. The

conversation then ended. [Id.]. Shortly thereafter, Ms. Patrick received a follow-up text message

from Ms. Coffman stating:

Please do not contact me regarding a return to work date when I have been unable to

return and still have shortterm [sic] disability plus bonding leave[.] My attorney is

Jason Harwood and he can be reached at [redacted].

[Id.].

On July 28, 2022, Ms. Coffman received a letter from Nexstar’s Associate Counsel

and Senior Vice President of Human Resources Terri Lynn Bush. Ms. Bush informed Ms. Coffman

her leave commenced February 23, 2022, her twelve weeks of FMLA leave expired May 17, 2022,

and Nexstar provided her with additional leave given her inability to return to work. [ECF 28-2].

The letter further directed Ms. Coffman to inform Nexstar by August 4, 2022, of her expected return

date. [Id.].

On August 4, 2022, Ms. Coffman responded via email to Ms. Bush’s letter. [ECF 28-

4]. She informed her that she “was still under intense care” and had surgery on August 8, 2022, to

remove the nephrostomy tube. [Id.] She mentioned a recovery time of four to eight weeks. [Id.] She

also stated from August 8 through October, she would “have a urethral catheter,” which would

prevent her from lifting and driving “(due to safety concerns of the tubing being entangled and pulled

which could result in additional damages).” The October endpoint was contingent upon a tentative

surgery to determine whether “the ureter reimplantation was successful and [if] [her] body ha[d]

healed well enough for the stint to be removed.” [Id.]. Ms. Coffman further stated that was all the

information she knew at that time. [Id.].

On August 15, 2022, Ms. Bush terminated her employment with Nexstar, effective

August 19, 2022. [ECF 28-3]. Ms. Bush explained Ms. Coffman had “been off work since February

23, 2022[,]” and "[Nexstar] [could] no longer hold [her Account Executive job . . . .]” [Id.]. She was,

however, “welcome to apply for open positions in the future.” [Id.]. On August 24, 2022, Ms.

Coffman’s short-term disability ended. [ECF 28 at 4]. On September 19, 2022, Ms. Coffman’s

physician cleared her to return to work that day. [ECF 28-5]. Nexstar knew nothing of this given the

termination.

On September 15, 2022, Ms. Coffman instituted this action alleging Nexstar’s

termination decision gave rise to the following claims: (1) disability discrimination in violation of

the West Virginia Human Rights Act (“WVHRA”), W. Va. Code § 5-11-1 et seq., (2) retaliatory

discharge in violation of the Family Medical Leave Act (“FMLA”), (3) retaliatory discharge in

violation of the WVHRA, and (4) failure to provide a reasonable accommodation in violation of the

WVHRA.

On August 7, 2023, Nexstar moved for summary judgment on each of Ms. Coffman’s

claims. [ECF 26]. Nexstar generally contends Ms. Coffman has not met its asserted legitimate

business reason for her termination. [ECF 27 at 10]. Nexstar notes her lack of proof that (1) she was

able to work at the time she was terminated; (2) “Nexstar’s actions were not required to avoid a

budget shortfall;” and (3) Nexstar harbored a discriminatory or retaliatory animus towards her. [Id.

at 2].

Ms. Coffman responds Nexstar denied her multiple “reasonable accommodations” to

wit: (1) permitting her to work remotely; (2) granting her unpaid time for recovery; or (3) permitting

her to take paid parental leave, consistent with Nexstar’s policy, beginning August 24, 2022, the date

her short-term disability expired. [ECF 28 at 10]. She also claims Nexstar’s asserted legitimate

business reasons for her termination were pretextual. [See id. at 14-17].

II.

A. Governing Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper where

“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). The burden is on the nonmoving party to

show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 246 (1986). “The nonmoving party must do so by offering ‘sufficient proof in the form of

admissible evidence’ rather than relying solely on the allegations of her pleadings.” Guessous v.

Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v. Data Gen. Corp.,

12 F.3d 1310, 1316 (4th Cir. 1993)).

The Court must “view the evidence in the light most favorable to the [nonmoving]

party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks and citation omitted);

Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). “The court . . .

cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Off. of the

Courts, 780 F.3d 562, 569 (4th Cir. 2015); see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir.

2017). In general, if “an issue as to a material fact cannot be resolved without observation of the

demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate.”

Fed. R. Civ. P. 56 advisory committee’s note to 1963 amendment.

B. WVHRA: Disability Discrimination and Reasonable Accommodation Claims

The WVHRA provides pertinently as follows respecting discrimination based upon

disability:

It shall be an unlawful discriminatory practice, unless based upon a bona fide

occupational qualification, . . . [f]or any employer to discriminate against an

individual with respect to compensation, hire, tenure, conditions or privileges of

employment if the individual is able and competent to perform the services required

even if such individual is . . . disabled.

W. Va. Code § 5-11-9(1). The WVHRA thus “protects a disabled individual’s right to employment

so long as that individual is capable, with reasonable accommodation, of completing the bona fide,

essential functions of the job.” Woods v. Jefferson Corporation, 241 W. Va. 312, 319, 824 S.E.2d

539, 545 (2019). The governing regulations provide “[n]o employer shall, on the basis of disability,

subject any qualified individual with a disability to discrimination in employment as it relates to . .

. termination.” W. Va. Code R. §§ 77-1-4.1.1, 77-1-4.1.2. The regulations further define “qualified

individual with a disability” as follows:

4.2. “Qualified Individual with a Disability” means an individual who is able and

competent, with reasonable accommodation, to perform the essential functions of the

job, and if an employer has prepared a written description before advertising or

interviewing applicants for the job, this description may be considered evidence of

the essential functions of the job. A job function may be considered essential for

several reasons, including but not limited to the following:

4.2.1. The function may be essential because the reason the employment position

exists is to perform that function;

4.2.2. The function may be essential because of the limited number of employees

available among whom the performance of that job function can be distributed; and/or

4.2.3. The function may be essential because of the amount of time spent on the job

performing the function.

W. Va. Code R. § 77-1-4.2. “[A] ‘qualified individual with a disability’ under the [WVHRA] and

the accompanying regulations is one who is able and competent, with reasonable accommodation,

to perform the essential functions of the job in question.” Woods, 214 W. Va. at 319, 824 S.E.2d at

546 (cleaned up) (internal citations omitted). “‘Able and competent’ means that, with or without

reasonable accommodation, an individual is currently capable of performing the work and can do

the work without posing a direct threat . . . of injury to health and safety of either other employees

or the public.” W. Va. Code R. § 77-1-4.3.

“‘Reasonable [a]ccommodation’ means reasonable modifications or adjustments to

be determined on a case-by-case basis which are designed as attempts to enable an individual with

a disability to be hired or to remain in the position for which [s]he was hired.” W. Va. Code R. § 77-

1-4.4. A reasonable accommodation further “requires that an employer make reasonable

modifications or adjustments designed as attempts to enable an individual with a disability to remain

in the position for which she . . . was hired.” Id. The WVHRA “requires that the process of

determining what constitutes reasonable accommodation in a particular case be flexible in order to

balance the interests of the employee in continued employment and the interests of the employer in

avoiding unreasonable burdens or expenses.” Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18, 31,

521 S.E.2d 331, 344 (1999). “Plaintiff bears the burden of persuasion with respect to demonstrating

that an accommodation is reasonable.” Kitchen v. Summer Continuous Care Center, LLC, 552 F.

Supp. 2d 589, 596 (S.D.W. Va. 2008).

The Supreme Court of Appeals of West Virginia has incorporated the “qualified

individual with a disability” requirement into the following elements of a discriminatory discharge

claim based on disability: “(1) he or she meets the definition of [having a ‘disability’], (2) he or she

is a ‘[qualified individual with a disability],’ and (3) he or she was discharged from his or her job.”

Woods, 214 W. Va. at 320, 824 S.E.2d at 547 (quoting Syl. Pt. 2 Morris Mem’l Convalescent Nursing

Home, Inc. v. W.Va. Human Rights Comm’n, 189 W. Va. 314, 431 S.E.2d. 353 (1993)). To have a

“disability” under the WVHRA, a plaintiff must have a “mental or physical impairment which

substantially limits one or more . . . major life activities.” W. Va. Code § 5-11-3(m)(1). “The term

‘major life activities’ includes functions such as caring for one’s self, performing manual tasks,

walking, hearing, speaking, breathing, learning and working[.]” Id.

“Once the plaintiff makes a prima facie case, the burden of production shifts to the

employer to articulate some legitimate, nondiscriminatory reason for the negative action taken

against the complainant. The complainant then must prove that the employer’s reason was

pretextual.” Woods, 214 W. Va. at 320, 824 S.E.2d at 547 (internal quotations and citations omitted).

“To demonstrate pretext, a plaintiff must demonstrate that ‘the employer did not act as it did because

of its offered explanation.’” Id. (quoting Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 74, 479 S.E.2d

561, 584 (1996)).

Similar to Ms. Coffman’s disability discrimination claim, to succeed on a reasonable

accommodation claim under the WVHRA, she must prove the following elements:

(1) The 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 the plaintiff’s

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

accommodation.

Burns v. West Virginia Dep’t of Education and Arts, 242 W. Va. 392, 398-99, 836 S.E.2d 43, 49-50

(2019) (quoting Syl. Pt. 2, Skaggs, 198 W. Va. at 51, 479 S.E.2d at 561).

Nexstar asserts Ms. Coffman is unable to satisfy the “qualified individual with a

disability” element of both her disability discrimination and reasonable accommodation claims. It

asserts she was unable to work or perform the essential functions of her Account Executive position,

with or without a reasonable accommodation, when she was terminated on August 19, 2022. Nexstar

emphasizes Ms. Coffman remained on short-term disability at discharge, conclusively proving she

was unable to work. [See ECF 26-3, Bush Depo. at 8:23-9:2 (“[H]er [short-term disability] was

approved through, I think, the end of the summer, which means disabled, unable to work is how you

qualify for it[.]”)].

Nexstar further asserts Ms. Coffman failed to provide it with a definitive return-to-

work date; thus, at termination, Nexstar knew only Ms. Coffman (1) remained under intense care,

(2) was undergoing another surgery on August 8 requiring four to eight weeks of recovery, and (3)

had a tentative surgery in October. [See ECF 28-4]. Nexstar contends she is unable “to point to any

record evidence that it knew anything other than that she was not able to perform the essential duties

of her job at the time of termination” and is, as a result, unable to establish “she was a ‘qualified

person with a disability’ under the WVHRA.” [ECF 27 at 12].

Reduced to its essence, Nexstar contends Ms. Coffman’s inability to work precludes

her being defined as a “qualified person with a disability.” The position, at least with respect to an

unpaid leave of absence, has been rejected by the Supreme Court of Appeals. In Haynes, the Court

held “that a ‘qualified disabled person’ who is protected by the [WVHRA] . . . and regulations issued

pursuant thereto, includes a person who has a disability and is temporarily unable to perform the

requirements of the person’s job due to their disability, with or without accommodation.” 206 W.

Va. at 31, 521 S.E.2d at 344; see also Kitchen, 552 F. Supp. 2d at 595-96 (explaining the “tricky or

oxymoronic anomaly” presented respecting medical leave of absences in reasonable accommodation

and disability discrimination claims under both the WVHRA and the Americans with Disabilities

Act (“ADA”)).

The Supreme Court of Appeals explained that to hold otherwise would disqualify a

medical leave of absence from constituting a reasonable accommodation. Id. The West Virginia

Court thus held a “reasonable accommodation” under the WVHRA “may include a temporary leave

of absence that does not impose an undue hardship upon an employer, for the purpose of recovery

from or improvement of the disabling condition that gives rise to an employee’s temporary inability

to perform the requirements of his or her job.” Id. Ms. Coffman raises an extended medical leave of

absence as one possible reasonable accommodation Nexstar could have offered her instead of

termination. The Court rejects Nexstar’s contention.

Indeed, Ms. Coffman asserts there were at least three reasonable accommodations

that would have permitted her to perform her Account Executive position: (1) unpaid leave until she

recovered; (2) remote work; or (3) paid parental leave commencing at the expiration of her short-

term disability on August 24, 2022. Nexstar disagrees and further contends Ms. Coffman’s failure

to specifically request any one of these accommodations at termination dooms her claim. This

argument is also misplaced. See Alley v. Charleston Area Medical Center, Inc., 216 W. Va. 63, 75,

n. 7, 602 S.E.2d 506, 518, n.7 (2004) (rejecting defendant’s contention “that the trial court erred by

instructing the jury that a medical leave of absence was not an appropriate form of accommodation

because the plaintiff offered no evidence that she requested additional medical leave” inasmuch as

“an employee is not required to prove that a specific alternative was available or requested, but rather

whether some accommodation was possible.”).

1. Extended Leave of Absence

First, Nexstar contends an additional period of unpaid leave was unreasonable and

created an undue burden. It notes Ms. Coffman (1) provided no fixed return to work date in her

August 4, 2022, email, and (2) she had then been absent for six months; Nexstar additionally asserts

it was unable to transfer her accounts so long as she was on job-protected leave, creating a financial

strain on the company. Nexstar further asserts Ms. Coffman “cannot point to any evidence to dispute

Nexstar could not tolerate her absence indefinitely—her accounts and leads needed to be shifted to

other Account Executives because she was unable to return to work.” [ECF 27 at 13]. Nexstar was

thus left, it asserts, with no option but termination.

Ms. Coffman appears to contend she would have returned on September 19, 2022,

the date she was cleared to return to work. [See ECF 28 at 4]. But that clearance came roughly a

month after her termination. And Ms. Coffman’s August 4, 2022, email gave not a hint she might

soon be cleared. [See ECF 28-4]. The email instead explained (1) she “was still under intense care,”

(2) she had surgery on August 8, 2022, to remove her nephrostomy tube (requiring four to eight

weeks of recovery time), (3) she had a tentative surgery in October, and (4) she would have a catheter

preventing her from lifting and driving from August through October. [Id.]. Nexstar is not an oracle.

And West Virginia law does not require it to attain that impossible status.4

It is true that, “in some instances[,] additional medical leave may be a reasonable

accommodation[,]” but “it is only reasonable where it is finite and will be reasonably likely to enable

the employee to return to work.” Kitchen, 552 F. Supp. 2d at 595 (internal quotations omitted); see

also Halpern v. Wake Forest University Health Sciences, 669 F.3d 454, 465 (4th Cir. 2012)

(recognizing an employer is not required “to give a disabled employee an indefinite period of time

to correct a disabling condition that renders him unqualified.”); Myers v. Hose, 50 F.3d 278, 283

(4th Cir. 1995) (“We therefore hold that reasonable accommodation does not require the [defendant]

to wait indefinitely for [plaintiff’s] medical condition to be corrected. . . ”); Haynes, 206 W. Va. at

4Ms. Coffman unavailingly adds that “[i]f Nexstar would have engaged in the legally

required interactive process to determine a reasonable accommodation, it would have learned that

[she] was fully cleared to return to work by her physician on September 19, 2022,” [ECF 28 at 3].

The record demonstrates beyond any doubt Nexstar was fully engaged in regularly checking her

status during her extended absence.

31, n.17, 521 S.E.2d at 344, n.17 (explaining “by disabling condition, we refer to a totally disabling

medical condition of limited duration, so that following a temporary leave of absence for treatment

and improvement, it is reasonably foreseeable that the plaintiff is likely to be able to return to

work.”) (emphasis added).5 Inasmuch as Ms. Coffman’s August 4, 2022, email failed to provide

Nexstar with a definitive date upon which she could reasonably be expected to return to work, the

Court concludes any additional period of unpaid leave -- especially after an additional three months

of leave had already been provided -- would not have been a reasonable accommodation permitting

Ms. Coffman to perform her essential job functions.

2. Remote Work

Nexstar next contends remote work was not a reasonable accommodation. It notes

Ms. Coffman never requested remote work at termination. Neither did the record suggest she was

able to perform work at that time. Assuming such a request, Nexstar insists she could not perform

an essential function of her position, namely, the development of new, local direct business.6 It notes

5The Court notes that our Court of Appeals’ decisions in Halpern and Myers both dealt with

claims asserted under the ADA as opposed to the WVHRA. Nonetheless, “the rights under the ADA

and the WVHRA are coextensive, and authorities analyzing reasonable accommodation under the

ADA are, therefore, instructive.” Burns, 242 W. Va. at 398, n.7, 836 S.E.2d at 49, n.7.

6Nexstar’s General Manager Al Sandubrae explained the concept of developing new local

direct business as follows:

Account [E]xecutives go out and consult with businesses in terms of how we can help

grow their business. They're quantified as a new local direct account if they don't

have an advertising agency, because advertising agencies get involved in the

commission rates and everything else. So new local direct is pure new local business.

Each [A]ccount [E]xecutive and me, as a station, has a budget in terms of the amount

of new local direct revenue that's to be generated over the course of that year. When

you don't have that being achieved by an [A]ccount [E]xecutive, then two things

happen. Number one, we start getting off on budget. Number two, the other [A]ccount

[E]xecutives are encouraged to try and make up the deficit that this other [A]ccount

[E]xecutive is not making. That wasn't and isn't specific to [Ms. Coffman]. At any

given point in time over the years, if you have a deficit, we've got to make it up. And

so that deficit, if you will, is divvied up appropriately between the [A]ccount

travel and in-person meetings, are critical for her position, although it removed the obligation while

she was on bedrest. [ECF 27 at 15].

While Ms. Coffman need not prove she requested a specific accommodation, she

must prove one was possible at the relevant point. Alley, 216 W. Va. at 75, n. 7, 602 S.E.2d at 518,

n.7. And she has failed to demonstrate that, at the time of her August 2022 termination, she was able

to work at all, whether in person or remotely.

Again, the August 4, 2022, email does not reasonably demonstrate she was in any

condition to work from home at termination. She “was still under intense care,” was undergoing

surgery four days later that would require four to eight weeks of recovery, and had a tentative surgery

in October. Additionally, as late as June 2022, Ms. Coffman told Ms. Patrick her short-term disability

was being extended as she could not return due to the remaining nephrostomy tube. [ECF 26-16 at

3]. Ms. Coffman’s follow-up text message thereafter stated “[p]lease do not contact me regarding a

return to work date when I have been classified as unable to return and still have short[-]term

disability plus bonding leave.” [Id.].

Ms. Coffman’s June and August communications indicate an inability and

unwillingness to work anywhere. And while she previously worked remotely while on bedrest and

during the Pandemic, there is no indication she was incapable of working at these times. Her situation

and condition at termination were much different according to her own self appraisal and her

continuing receipt of short-term disability benefits.

[E]xecutives so that at the end of the year, we hit our budget numbers. So that's what

new local is.

[ECF 26-4, Sandubrae Depo. at 73:2-22].

Based upon the foregoing, remote work was not a reasonable accommodation at

termination.

3. Paid Parental Leave

Ms. Coffman next points to the thirty-day period of paid leave from -- August 19,

2022, until September 19, 2022 -- available to her under Nexstar’s paid parental leave policy. This

contention, however, runs into the same difficulty as earlier noted. It would have required Nexstar

to divine -- out of thin air -- her clearance to return to work.

Nexstar notes Ms. Coffman mischaracterizes the paid parental leave policy in any

event. It claims “[t]o be eligible for the paid paternal leave benefit, an employee must be eligible for

FMLA and must have exhausted any entitlement to short-term disability benefits.” [Id.]. The policy

“was implemented to cover the gap in the typical FMLA leave for employees after childbirth—

which typically results in entitlement to [six] weeks of short-term disability pay or [twelve] weeks

of short-term disability pay for a complicated birth” and “was never intended that any employee

would be entitled to more than [thirty-two] weeks of job-protected leave” given it is “unable to hold

positions open for that long.” [Id.].

The description ties with testimony from Nexstar’s Senior Vice President of Human

Resources, Terri Bush:

Q. What benefits were available to Ms. Coffman after the birth of her twins?

A. Well, we had -- we instituted a paid parental leave program in January 2022, but first

you go -- if you’re the birth parent, you go on -- you have your birth event and you

presumably are declared disabled for a certain portion of that, I guess. What I’ve

always been told is that they’ll approve you for six weeks for the delivery and up to

twelve if it’s complicated, like a C section or something, but most people are declared

disabled for six weeks, at least half of the FMLA period . . . So those are the benefits

that would have been available, Nexstar paid parental leave, short-term disability.

After short-term disability is over, then we could do paid parental leave.

Q. So after short-term disability, then you get paid parental leave?

A. Right. If you’re – yeah. We make the participants exhaust their short-term

disability benefits before the paid parental leave. They can’t be double paid,

so . . .

Q. Okay. How long can someone be on short-term disability?

A. Well, as long as their doctor says they’re disabled, up to the maximum of 26

weeks. But that’s different from how long . . . they [can] stay on [a] leave of

absence.

Q. Okay. So she could have been on short-term disability for 26 weeks, correct?

A. Correct. If it were approved for that length of time, yes.

. . . .

Q. Okay. And then after that is exhausted, you then can go on paid parental

leave?

A. If you --- well, no, because your employment probably would be terminated

by that point.

Q. Why is that? Why couldn’t you go on paid parental leave?

A. Because we can’t hold spots open that long. It’s unduly burdensome.

[ECF 26-3, Bush Depo. at 13:20-14:11, 15:3-12]. Ms. Bush further explained as follows:

Q. How long is this paid parental leave for, six weeks?

A. It’s six weeks.

Q. Six or twelve?

A. It’s six, but it’s concurrent with your FMLA, your job-protected leave. To

be eligible for the program, you have to be eligible for FMLA, so it runs

concurrent with that.

Q. Okay. But it runs after the short-term disability?

A. Correct. So in a traditional, ordinary sense, if you had a 12-week FMLA

approved leave, then you would go out, you would have two weeks of

unpaid. We’d let you use sick or vacation time to fill that gap, then your

short-term disability benefits would kick in for the remaining ten weeks of

your leave and then we would allow you to have six weeks fully paid after

your FMLA expired.

Q. Okay. Was Ms. Coffman on short-term disability leave?

A. She was receiving short-term disability benefits. She was on Family Medical

Leave Act leave.

Q. Okay. And was that set to expire on August 24, 2022?

A. No. Her FMLA leave expired in mid-May 2022.

Q. I’m talking about her short-term disability.

A. I don’t know. It’s like two trains on separate tracks parallel. FMLA runs out;

the [short-term disability] train keeps on going.

Q. Okay. And was she ever on paid parental leave?

A. No, not to my knowledge. She wouldn’t have achieved it because she never

returned from disability, from receiving disability benefits.

[Id. at 15:22-17:8].

Ms. Coffman does not counter this description. And it is incumbent upon her to show

the six weeks of paid parental leave would be available to an employee who had exhausted twelve

weeks of FMLA leave, in addition to twenty-six weeks of short-term disability. It instead appears

Nexstar’s policy accounts for an eighteen-week leave maximum as opposed to that which Ms.

Coffman claims she was entitled, namely, an additional six-weeks of leave after twenty-four weeks

had been provided. No reasonable juror could conclude Nexstar’s paid parental leave was a

reasonable accommodation available at termination.

Ms. Coffman has consequently not made a prima facie case of disability

discrimination or a failure to provide a reasonable accommodation.

C. FMLA: Retaliatory Discharge Claim

“The FMLA prohibits employers from discriminating against an employee for

exercising [her] FMLA rights.” Roberts v. Gestamp West Virginia, LLC, 45 F.4th 726, 738 (4th Cir.

2022) (quoting Hannah P. v. Coats, 916 F.3d 327, 347 (4th Cir. 2019)). Similar to Ms. Coffman’s

disability discrimination claim under the WVHRA, “the McDonnell Douglas burden-shifting

framework [applies] to FMLA-retaliation claims.” Id. (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973)). “To establish a prima facie case of FMLA retaliation, a plaintiff must

demonstrate (1) [she] 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.” Id.

(quoting Hannah P., 916 F.3d at 347 (cleaned up)). “If the plaintiff succeeds on this front, ‘the

burden shifts to the defendant to provide a legitimate, nonretaliatory reason for taking the

employment action at issue.’” Id. If the defendant provides such a reason, “the plaintiff may still

prevail if [she] can show pretext.” Id.

The first two elements are not in dispute. But, as Nexstar notes, the causal link is

troublesome for Ms. Coffman. It is difficult to imagine a link -- even a tenuous one -- between

termination and her FMLA leave given Nexstar provided her with FMLA leave “when she wanted

to take it—and extended the job-protected leave to more than twice the amount of time required by

the FMLA.” [ECF 30 at 3-4]. There is, however, Ms. Coffman’s contention about Mr. Large’s

January 2022 statement during her hospitalization that Nexstar was “trying to keep [her] off FMLA”

at that time so she could continue working remotely and retain access to her accounts. As a matter

of law, however, that statement is a slender reed upon which to hang a jury question on retaliation.

That is so for multiple reasons, not the least of which is Ms. Coffman’s concession

she did not want to take FMLA leave during this time inasmuch as “it was still early in the

pregnancy;” [ECF 26-7, Coffman Depo. at 49:6-50:7] staying off FMLA leave was to her benefit,

inasmuch as working remotely while on bedrest allowed her to retain eligibility for FMLA leave

until after her twins were born. [Id.] Respecting other reasons, (1) Ms. Coffman conceded Ms.

Patrick had provided her with FMLA leave paperwork prior to the birth of her twins [Id. at 49:9-13];

and (2) Ms. Patrick testified Ms. Coffman became “upset” at that event as she did not want to go on

FMLA leave during her hospitalization; [ECF 26-9, Patrick Depo. at 19:15-21:12]. Ms. Coffman

cannot reasonably characterize Mr. Large’s statement as indictive of some ill intent; the record

demonstrates Nexstar permitted Ms. Coffman to take FMLA leave when she wanted and without

issue. Indeed, Nexstar gave her an additional twelve weeks of leave after her guaranteed initial

twelve weeks of FMLA leave expired in May 2022.

There is absent the required causal link between Ms. Coffman’s termination and her

taking of FMLA leave.7

D. WVHRA: Retaliatory Discharge Claim

To succeed on a retaliatory discharge claim under the WVHRA, a plaintiff must prove

the following elements: (1) she “engaged in protected activity;” (2) her “employer was aware of the

protected activities;” (3) she “was subsequently discharged and (absent other evidence tending to

establish a retaliatory motivation);” (4) her “discharge followed . . . her protected activities within

such period of time that the court can infer retaliatory motivation.” Roth v. DeFeliceCare, Inc., 226

W. Va. 214, 224, 700 S.E.2d. 183, 193 (2010) (quoting Syl. Pt. 10, Hanlon v. Chambers, 195 W.

Va. 99 464 S.E.2d 741(1995)); see also Syl. Pt. 4, Frank’s Shoe Store v. West Virginia Human Rights

Commission, 179 W. Va. 53, 365 S.E.2d 251 (1986); Syl. Pt. 1, Brammer v. Human Rights

Commission, 183 W. Va. 108, 394 S.E.2d 340 (1990)).

A “protected activity” under the WVHRA “includes opposition to a practice that the

plaintiff reasonably and in good faith believes violates the provisions of the [WVHRA].” Id. (citing

Syl. Pt. 7, Conrad v. ARA Szabo, 198 W. Va. 362, 480 S.E.2d 801 (1996)). Indeed, the relevant

provision of the WVHRA makes it unlawful for an employee to

[e]ngage in any form of reprisal or otherwise discriminate against any person because

he or she has opposed any practices or acts forbidden under this article or because

7To the extent Ms. Coffman’s WVHRA retaliatory discharge claim is premised on exercising

her FMLA leave, the claim fails for this same reason.

he or she has filed a complaint, testified or assisted in any proceeding under this

article.

W. Va. Code § 5-11-9(7)(C) (emphasis added). Further, retaliation claims under the WVHRA are

subject to the same burden-shifting framework previously mentioned. Colgan Air, Inc. v. West

Virginia Human Rights Commission, 221 W. Va. 588, 597, 656 S.E.2d. 33, 42 (2007). Once a

plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a

legitimate, non-discriminatory reason for her discharge. /d. If the defendant satisfies its burden, the

plaintiff must then adduce evidence that the reasons offered by the defendant are pretextual. /d.

Nexstar contends Ms. Coffman “did not engage in any protected activity.” [ECF 27

at 17]. Ms. Coffman responds “[b]y asking for a reasonable accommodation of working from home”

and “pursuing her . . . short-term disability rights,” she was “clearly” engaged in protective activity.

[ECF 28 at 12]. She asserts “[t]o hold otherwise would allow a corporate defendant to retaliate and

fire any employee who sought a reasonable accommodation.” [/d. at 12]. Assuming a request for a

reasonable accommodation constitutes engaging in a “protected activity,” as explained in detail

above, Ms. Coffman has failed to demonstrate any of her proffered accommodations, including

remote work, were reasonable at termination. Accordingly, the Court concludes her retaliatory

discharge claim fails as a matter of law.

Hil.

Based on the foregoing discussion, Nexstar’s Motion for Summary Judgment [ECF

26] is GRANTED.

The Clerk is directed to send copies of this written opinion and order to counsel of

record and any unrepresented party.

ENTER: November 7, 2023

CD ZL

20 Ven iy Frank W. Volk

1 nena TInited Gtatec Diietrict Indoe