“In providing notice, the employee need not use any magic words.”
How later courts described this case
- “In providing notice, the employee need not use any magic words.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MISTY KANIA,
Plaintiff,
v. CIVIL ACTION NO. 2:23-cv-00357
CHSPSC, LLC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are Plaintiff Misty Kania’s (“Plaintiff”) Motion for
Summary Judgment, [ECF No. 38], and Defendants CHSPSC, LLC and Oak Hill
Hospital Corporation d/b/a Plateau Medical Center’s (collectively, “Defendants”)
Motion for Summary Judgment, [ECF No. 36]. Because the motions raise
substantially similar arguments, I will dispose of them together. For the following
reasons, Plaintiff’s motion, [ECF No. 38], and Defendants’ motion, [ECF No. 36], are
both DENIED.
I. Background
This case arises from the termination of Plaintiff’s employment with Plateau
Medical Center (“Plateau”) following a string of absences in the fall of 2022. [ECF No.
1, ¶¶ 10, 12–18]. At all times relevant to the present case, Oak Hill Hospital
Corporation did business as Plateau, ¶ 5, and Oak Hill Hospital Corporation was
owned by CHSPSC, LLC, (“CHSPSC”) a Delaware corporation that is a subsidiary of
Community Health Systems, Inc. (“CHS”). ¶ 3. Plaintiff was employed with
Plateau on three separate occasions over the course of twelve years. ¶ 10. During
Plaintiff’s most recent term of employment with Plateau, which began in September
of 2019, she worked in the hospital’s surgical recovery room as a registered nurse
(“RN”). ¶ 11; [ECF No. 36-2]. She remained in this role until her termination on
December 5, 2022. [ECF No. 36-14].
During a three week period in the fall of 2022, Plaintiff missed ten days of work
due to pneumonia. [ECF No. 37, at 5–6]. Plaintiff called out of work four days in a
row between November 15–18 due to shortness of breath and fatigue before returning
to work on November 21. at 5; [ECF No. 39, at 2]. After working her full shift on
November 21, Plaintiff was still experiencing shortness of breath and fatigue and
contacted her healthcare provider. [ECF No. 39, at 2]; [ECF No. 38-10, at 2]. Plaintiff
then received a chest x-ray, which confirmed she had pneumonia. [ECF No. 38-8, at
14]. She then sent a text message to her supervisor at Plateau, Jeff Hanshaw, to
inform him of her diagnosis and that she would be out of work. [ECF No. 38-10, at 2].
Mr. Hanshaw responded to Plaintiff’s message by “liking” it. Plaintiff was ordered
by her healthcare provider to stay out of work for one week and was prescribed
antibiotics and steroids. [ECF No. 39, at 3]. She returned to work on November 28
and worked through November 30, but called out December 1 and 2 due to the
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“residual effects of pneumonia.” ; [ECF No. 38-8, at 18 (doctor’s note
excusing Plaintiff from work from December 1 through December 5, 2022)]. When
Plaintiff returned to work on December 5, she was notified that her employment was
being terminated immediately due to her absences between November 15 and
December 2. ; [ECF No. 38-7].
Plaintiff contacted Human Resources and the CHS Complaint Hotline to
contest her termination. [ECF No. 38-8, at 20–21]. After receiving the final decision
denying her appeal of her termination, Plaintiff filed the present lawsuit against
CHS,1 CHSPSC, and Plateau claiming that her termination violates the Family and
Medical Leave Act (“FMLA”) and is in contravention of West Virginia state public
policy. [ECF No. 1, ¶¶ 28–36].
In Count I, Plaintiff alleges that Defendants violated the FMLA’s prohibition
on retaliation by terminating her employment because she exercised her rights under
the statute. ¶ 29. Specifically, Plaintiff asserts that she was terminated after
returning to work following a two-week period of absences related to pneumonia.
¶¶ 12–19. In Count II, Plaintiff claims that Defendants violated the FMLA’s
prohibition on interference by failing to meet its obligations under the FMLA. ¶¶
32–33. Finally, in Count III, Plaintiff alleges that her termination was in
contravention of “a substantial state public policy of the State of West Virginia.”
¶¶ 35–36.
1 CHS was dismissed without prejudice from this action on June 21, 2023. [ECF No. 11].
3
II. Legal Standard
To obtain summary judgment, the moving party must show that there is no
genuine issue as to any material fact and that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). “Facts are ‘material’ when they might affect the outcome
of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.”
, 597 F.3d 570, 576 (4th Cir. 2010). The moving party
may meet its burden of showing that no genuine issue of material fact exists through
the use of “depositions, answers to interrogatories, answers to requests for admission,
and various documents submitted under request for production.”
, 736 F.2d 946, 958 (4th Cir. 1984). In considering a motion for summary
judgment, the court will not “weigh the evidence and determine the truth of the
matter.” , 477 U.S. 242, 249 (1986). Rather, the court will
draw any permissible inference from the underlying facts in the light most favorable
to the nonmoving party. , 475 U.S.
574, 587–88 (1986).
“When faced with cross-motions for summary judgment, the court must review
each motion separately on its own merits to determine whether either of the parties
deserves judgment as a matter of law.” , 316 F.3d 516, 523 (4th
Cir. 2003) (internal quotation omitted). “When considering each individual motion,
the court must take care to resolve all factual disputes and any competing, rational
4
inferences in the light most favorable to the party opposing that motion.” (internal
quotation omitted).
III. Discussion
Plaintiff asserts claims against Defendants for retaliation for exercising rights
and interference with rights under the FMLA as well as a claim for wrongful
discharge in contravention of substantial public policy of the state. [ECF No. 1, ¶¶
28–36]. The FMLA was enacted in part “to entitle employees to take reasonable leave
for medical reasons.” , 446 F.3d 541, 546 (4th
Cir. 2006) (quoting 29 U.S.C. § 2601(b)(1)–(2)). Under the FMLA, “employees have an
unfettered right to take FMLA leave because of a serious health condition
intermittently when ‘medically necessary,’ with or without employer consent.”
, 558 F.3d 284, 293 (4th Cir. 2009) (footnote omitted) (citing 29 U.S.C. §
2612(a)(1)(C)–(D)).
The FMLA provides employees with several substantive rights including the
right to take up to twelve weeks of leave during any twelve-month period for health-
related concerns. 29 U.S.C. § 2612(a)(1)(D). When an employee takes FMLA leave, it
“shall not result in the loss of any employment benefit accrued prior to the date on
which the leave commenced.” , 446 F.3d at 546 (quoting 29 U.S.C.§
2614(a)(2)). Instead, it is “unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise” an employee’s substantive rights
under the FMLA. 29 U.S.C. § 2615(a)(1). The FMLA also prohibits employers from
5
engaging in retaliatory or discriminatory conduct against employees who exercise
their substantive rights. , 446 F.3d at 546.
The Fourth Circuit held in that FMLA retaliation claims are
evaluated under the burden-shifting framework of
, 411 U.S. 792 (1973). 446 F.3d at 550–51. To establish a prima facie case of
FMLA retaliation, a plaintiff must demonstrate that “(1) she engaged in a protected
activity, (2) her employer took an adverse employment action against her, and (3) the
adverse employment action was causally connected to her protected activity.”
, No. 1:12-cv-01039, 2013 WL 5818019, at *3 (E.D. Va. Oct. 28,
2013), , 581 Fed. Appx. 182 (4th Cir. 2014); , 916 F.3d
327, 347 (4th Cir. 2019). At that point, the burden shifts to the defendants to
demonstrate that there was “a legitimate, nonretaliatory reason for taking the
employment action at issue.” , 916 F.3d at 347 (citing
, 789 F.3d 422, 429 (4th Cir. 2015)). If the employer meets
this burden, the burden shifts back to the plaintiff, who is then given the opportunity
to show that the employer’s reason was simply a pretext for retaliation.
, 857 F.3d 179, 192 (4th Cir. 2017). To survive a motion for
summary judgment, “the plaintiff must produce sufficient evidence to create a
genuine dispute of material fact such that a reasonable fact finder could conclude that
6
the adverse employment action” was retaliatory. (quoting
, 841 F.3d 199, 203 (4th Cir. 2016)).
Here, Plaintiff has established a prima facie case for FMLA retaliation. As
explained further below, Plaintiff engaged in a protected activity when she attempted
to exercise her rights under the FMLA by providing notice of her serious health
condition to Defendants. It is undisputed that Plaintiff’s employment with Plateau
was terminated on December 5, 2022. Finally, Plaintiff has demonstrated that her
termination was causally connected to her protected activity. The Fourth Circuit has
held that “close temporal proximity between activity protected by the statute and an
adverse employment action may suffice to demonstrate causation.” , 857 F.3d
at 192. Here, Plaintiff returned to work from leave for her pneumonia on December
5, 2022, and was fired that same day. This same-day temporal proximity sufficiently
demonstrates causation for the purposes of establishing a prima facie case.Therefore,
Plaintiff has established a prima facie case for FMLA retaliation and under the
framework, the burden shifts to Defendants to demonstrate a
legitimate nonretaliatory reason for the termination.
Defendants argue that Plaintiff’s claim for FMLA retaliation must fail because
they provide a legitimate, nonretaliatory reason for her termination: her continued
and longstanding issues with attendance and tardiness as well as her substandard
work performance. In support of this, Defendants provide testimony from Mr.
Hanshaw that Plaintiff’s performance and attendance at work had been a problem
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for quite some time prior to her termination. [ECF No. 36-11, at 23 (confirming
that in March 2022 “there was a serious issue with [Plaintiff’s] attendance)]. Notably,
Defendants point to a March 2022 annual evaluation where Plaintiff received scores
of 4 out of 5 for all evaluated criteria except for attendance for which she received a
score of 1 out of 5. [ECF No. 36-15, at 9]. Defendants also submit that Plaintiff
received a final warning on October 4, 2022, following an incident where she failed to
report to an emergency surgery while she was on-call. [ECF No. 36-10, at 2]. At that
time, Plaintiff was reprimanded and informed that “[a]ny other scenarios like this
will result in termination.” Thus, Defendants have demonstrated a legitimate,
nonretaliatory reason for terminating Plaintiff’s employment. This shifts the burden
back to Plaintiff to demonstrate that the reason given by Defendants is false and a
pretext for retaliation. , 857 F.3d at 192.
“Once the plaintiff proffers evidence establishing his prima facie case, and the
employer offers a non-retaliation reason of the adverse reaction, the plaintiff ‘bears
the burden of establishing that the employer’s proffered explanation is pretext for
FMLA retaliation.” , 827 F.3d 296, 306 (4th
Cir. 2016) (quoting , 446 F.3d at 551). Although Plaintiff argues in both her
motion for summary judgment, [ECF No. 38], and her response brief to the
Defendants’ motion for summary judgment, [ECF No. 47], that her “FMLA qualifying
leave was the only reason used by Plateau to terminate her employment,” the record
does not solely support that assertion. On her Termination Notice, Plateau explained
8
that she was fired because there were “[t]oo many call ins. To[o] many leaving before
work is done. Last write up for not coming to two urgent surgical call ins. [N]o show
was final warning.” [ECF No. 36-14, at 2]. After listing its grievances with Plaintiff’s
employment performance, the termination notice then listed her absences from
November and December 2022, when she had pneumonia.
However, Plaintiff has provided, via the deposition testimonies of her
supervisor at Plateau, Mr. Hanshaw, [ECF No. 38-13], and the HR Director for CHS,
Stephanie Adkins, [ECF No. 38-14], evidence to support that termination came as a
result of her pneumonia absences in November and December of 2022. [ECF No. 38-
13, at 4 (confirming that “those call-ins [were] what prompted … the ultimate
termination)]; [ECF No. 38-14, at 4 (stating that Plaintiff would have been
terminated for the November and December 2022 absences even if she had not had a
history of attendance and tardiness issues)]. This is sufficient evidence to create a
genuine dispute of material fact to the degree that a reasonable jury could find that
Plaintiff’s termination was in retaliation for her exercise of FMLA rights or was based
on her prior history of attendance and tardiness issues. , 841 F.3d at 203.
Therefore, because there is a genuine issue of material fact, both motions for
summary judgment, [ECF Nos. 36, 38], are DENIED as to Count I: FMLA Retaliation.
To establish an FMLA interference claim, a plaintiff must demonstrate that
(1) she was entitled to FMLA benefits, (2) she provided sufficient notice to her
9
employer of a serious health condition and her intent to take leave, and (3) her
employer denied her access to FMLA benefits to which she was entitled. ,
2013 WL 5818019, at *2; , 789 F.3d at 427. Employees are only eligible
for relief under the FMLA where they have been prejudiced by the employer’s
violation of the Act. , 827 F.3d at 302;
, 535 U.S. 81, 89 (2002). In order to qualify for FMLA leave, an employee
must notify their employer of their need to take leave. 29 C.F.R. § 825.301(b). The
employee is not required to “expressly assert rights under the Act or even mention
the FMLA” to satisfactorily provide notice. ; , 558 F.3d at 295 (“In
providing notice, the employee need not use any magic words.”). Where the need for
leave is unforeseeable, the employee must provide “sufficient information for an
employer to reasonably determine” whether the leave is covered by FMLA as soon as
practicable under the circumstances. 29 C.F.R. § 825.303.
I note that the parties do not dispute that Plaintiff was entitled to FMLA
benefits. The issues for the court are instead whether (1) Plaintiff provided sufficient
notice of her qualifying FMLA health condition to her employer as to qualify for
FMLA leave and (2) Plaintiff was denied FMLA benefits by Defendants.
1. Adequate Notice
Defendants argue that Plaintiff’s claim for FMLA interference must fail
because she did not invoke the protections of FMLA or expressly request FMLA leave.
[ECF No. 37, at 2, 12–14]. Alternatively, Defendants argue that Plaintiff can not
10
maintain an interference claim because she cannot demonstrate that “the decision to
terminate her employment occurred she first exercised her FMLA rights.” at
13 (emphasis in original). Plaintiff argues in both her response brief, [ECF No. 47, at
5], as well as in her own motion for summary judgment, [ECF No. 39, at 7–13], that
she provided sufficient notice to her employer of her need for leave as to trigger the
employer’s obligations under the FMLA.
The FMLA regulations do not require that employees request that leave be
designated as FMLA leave nor do they require that employees mention the Act by
name. 29 C.F.R. § 825.301(b). Rather, the regulations require that, where the leave
is unforeseeable as was Plaintiff’s leave here, employees “provide sufficient
information for an employer to reasonably determine whether the FMLA may apply
to the leave request.” § 825.303(b). The content that is deemed sufficient varies
depending on the circumstances, but the regulations contemplate that “such
information may include that a condition renders the employee unable to perform the
functions of the job . . . and the anticipated duration of the absence, .”
(emphasis added).
While the FMLA regulations do not provide an exhaustive list of illnesses and
conditions that qualify as “serious health conditions,” pneumonia is precisely the type
of health condition that was contemplated by Congress. , 250
F.3d 820, 834–35 (4th Cir. 2001) (“Examples of serious health conditions include but
are not limited to . . . . . . . All of these conditions meet the general test
11
that either the underlying health condition or the treatment of it requires the
employee be absent from work . . . for more than a few days for treatment or
recovery.”) (quoting an excerpt from S. Rep. No. 103-3, at 28–29). A serious health
condition, in pertinent part, as “an illness…that involves…continuing treatment by
a health care provider.” 29 C.F.R. § 825.113(a). A serious health condition requires,
, continuing treatment with a period of incapacity of more than three
consecutive days and treatment by a healthcare provider on at least one occasion—
which must occur within seven days of the first day of incapacity—resulting in a
regimen of continuing treatment supervised by the healthcare provider. § 825.115.
Here, Plaintiff’s notice of her serious medical condition was sufficient to trigger
Plateau’s obligations under the FMLA. The notice contained sufficient information
for Defendants to reasonably determine whether FMLA would apply to the leave
request because Plaintiff’s notice contained information about her serious health
condition, that she was under the care of a healthcare provider, and the anticipated
duration of her leave.
The record is clear that Plaintiff’s pneumonia was a qualifying serious health
condition, and that Defendants were aware of such. Plaintiff was diagnosed with
pneumonia on November 21, 2022, and prescribed antibiotics and steroids by her
healthcare provider the next day. [ECF No. 38-1, at 1]. Her healthcare provider also
“took her off work” for a week. ¶ 7. Therefore, Plaintiff’s pneumonia was a serious
health condition because it resulted in a period of incapacity for longer than three
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consecutive days and resulted in a regiment of continuing treatment—here,
antibiotics and steroids—supervised by her healthcare provider.
Plateau was aware that Plaintiff was suffering from a serious medical
condition. Plaintiff sent her supervisor, Jeffrey Hanshaw, a text message on Monday,
November 21, 2022, at 6:20 PM to inform him that she had had a chest x-ray done
that evening, which had revealed pneumonia. [ECF No. 38-10, at 2]. Mr. Hanshaw
responded by “liking” the message. Not only did he respond to Plaintiff’s text
message informing him of her diagnosis by “liking” the message, but he also testified
during his deposition that he was advised via text message of the diagnosis. [ECF No.
47-1, at 5]. He further testified that he was aware she was being treated by a
healthcare provider for her pneumonia, , and that that healthcare provider had
provided written documentation that Plaintiff was unable to work, [ECF No. 38-13,
at 8–9].
Although Plaintiff’s initial text message, [ECF No. 38-10], did not
communicate the anticipated duration of her leave that fact does not render her notice
inadequate. The regulations clearly provide flexibility for employees who do not know
the necessary duration of their leave initially. 29 C.F.R. § 825.303(b) (“[S]uch
information may include…the anticipated duration of the absence, .”)
(emphasis added). Furthermore, Plaintiff sent Mr. Hanshaw a follow-up text the next
day where she did provide the anticipated duration of her leave. [ECF No. 38-5 (“[My
healthcare provider] won’t let me return [for the] remainder of [the] week.”)].
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Thus, I FIND that Plaintiff’s notice was sufficient to trigger Defendants’
obligations under the FMLA. Her notice communicated her serious medical condition,
the fact that she was under the continuing care of a healthcare provider, and the
anticipated duration of her leave. I now turn my attention to whether Plaintiff
experienced a denial of benefits.
2. Denial of FMLA Benefits
Plaintiff argues that Defendants interfered with her rights under the FMLA
by terminating her employment after she gave notice of her serious health condition
and her intent to take leave. [ECF No. 39, at 1]. Defendants argue that Plaintiff’s
termination was justified based on her attendance and performance. Specifically,
Defendants contend that Plaintiff was terminated because she “was a below average
employee whose frequent unexcused absences, habitual tardiness, and substandard
work justified her termination.” [ECF No. 46, at 1].
“Interference with an employee’s FMLA rights does not constitute a violation
if the employer has a legitimate reason unrelated to the exercise of FMLA rights for
engaging in the challenged conduct.” , 987 F. Supp. 2d 644, 655
(D. Md. 2013) (quoting , 443 F.3d 501, 508 (6th Cir. 2006)).
An employee may be lawfully terminated and thus prevented “from exercising [her]
statutory rights to FMLA leave or reinstatement, but only if the dismissal would have
occurred regardless of the employee’s request for or taking of FMLA leave.”
(quoting , 345 F.3d 390, 401 (6th Cir. 2003)). Employers can
14
avoid liability under the FMLA by demonstrating that an employee would have not
remained employed regardless of the employee’s exercise of FMLA rights. ,
446 F.3d at 547.
Here, Defendants argue that Plaintiff was lawfully terminated based on her
attendance issues, tardiness, and substandard work performance. [ECF No. 46, at 1].
They further claim that the decision to terminate Plaintiff’s employment was “wholly
removed from considerations of a potential FMLA leave claim.” [ECF No. 37, at 16].
Defendants explain how all of the Plateau employees testified via deposition that
Plaintiff’s termination was based on her long track record of attendance and
performance issues. at 15. In her response brief, [ECF No. 47], as well as in her
own motion for summary judgment, [ECF No. 39], Plaintiff contends that her
termination was solely because of the fall 2022 absences related to her pneumonia.
In support of this proposition, Plaintiff refers to those same deposition testimonies of
those same Plateau employees that Defendants claim confirmed that her termination
was justified. [ECF No. 47, at 3 (“To the contrary all of the [Plateau] employees who
were involved in the decision to terminate [Plaintiff’s] employment testified that [she]
would not have been terminated had it not been for FMLA qualifying medical
leave.”)]. Because reasonable juries could differ on this factual question—the reason
for her termination—a genuine issue of material fact exists. Therefore, both motions
for summary judgment, [ECF Nos. 36, 38], are DENIED as to Count II: FMLA
Interference.
15
In Count III, Plaintiff asserts that her termination was in retaliation for
exercising her rights under the FMLA, which is in contravention of substantial public
policy of the state of West Virginia. [ECF No. 1, ¶¶ 34–36]. “The rule that an employer
has an absolute right to discharge an at will employee must be tempered by the
principle that where the employer’s motivation for the discharge is to contravene
some substantial public policy principle, then the employer may be liable to the
employee for damages occasioned by this discharge.” Syl. Pt. 1,
, 246 S.E.2d 270, 271 (W. Va. 1978). The Supreme Court of Appeals
of West Virginia has held that an employee may state a claim for retaliatory discharge
where that employee was discriminated against in violation of the FMLA’s leave
provisions. , 815 S.E.2d 520, 537 (W. Va. 2018).
Defendants argue that Count III is duplicative of the allegations raised in
Counts I and II and should therefore be dismissed. [ECF No. 37, at 18–19].
Expressing no opinion as to the likelihood of Plaintiff’s success on her state law claim,
I find that she is permitted to maintain the claim in this action because “the FMLA
does not preempt state law claims, even those claims arising out of the same
transaction or occurrence as an FMLA claim.” ,
149 F. Supp. 3d 724, 728 (S.D. W. Va. 2016) (footnote omitted) (allowing Plaintiff to
bring both an FMLA claim and a retaliatory discharge claim in violation of West
Virginia public policy). Having already found that there is a genuine issue of material
16
fact as to whether Plaintiff's termination was retaliatory in nature, I hereby FIND
that the same genuine issue of material fact exists as to Plaintiff's Harless claim.
Therefore, both motions for summary judgment, [ECF Nos. 36, 38], are also DENIED
as to Count ITI.
D. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment, [ECF
No. 36], Plaintiff's Motion for Summary Judgment, [ECF No. 38], are both DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and
any unrepresented party.
ENTER: June 25, 2024
pe STATES DISTRICT JUDGE
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