Gray v. Heritage-Crystal Clean, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

MICHAEL GRAY,

Plaintiff,

v. Civil Action No. 2:23-cv-00569

HERITAGE-CRYSTAL CLEAN, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is defendant’s motion for summary judgment on

(1) plaintiff’s claims against it under the West Virginia Human

Rights Act (“WVHRA”) and (2) defendant’s counterclaim against

plaintiff for breach of loyalty. The motions were filed

together with a supporting memorandum on July 12, 2024. ECF 35

and 36. Plaintiff opposes the motion by response filed July 27,

2024, ECF 39, to which defendant replied on August 2, 2024, ECF

44.

I. Background

This action concerns the termination of plaintiff’s

employment by defendant, which plaintiff alleges was

discriminatory and retaliatory on the bases of age and

disability. Defendant contends that plaintiff violated company

policy, by virtue of which it had legitimate, nondiscriminatory

reasons to terminate plaintiff. Plaintiff asserts that

defendant’s reasons were pretextual for its unlawful

discriminatory termination of plaintiff.

Plaintiff’s employment with defendant began in 2011 as

a branch sales manager until his promotion in 2012 to his final

role as the branch manager of defendant’s Charleston, West

Virginia branch. Pl. Dep. 22:5, 24:12-22, 25:9-11. Defendant’s

Charleston location provides environmental sales and services,

including the facilitation of cleaning services, to its

customers. See id. at 27. When asked to describe the lines of

business conducted at the Charleston branch, plaintiff

responded: “[p]arts washer, sales, and service. Oil collection.

Oily water collection. Vacuum sales and service. Antifreeze

sales and service. And absorbents.” Id. at 27:5-7.

Steven Arthur (“Arthur”) was an employee at the

Charleston branch who worked under plaintiff’s management. See

Arthur Dep. at 10. Russell Pauly (“Pauly”) was defendant’s

regional manager who oversaw the Charleston branch. See Pauly

Dep. at 5-6. Pauly reported to Todd Rohde (“Rohde”),

defendant’s Divisional Vice President. Rohde Dep. at 7:4-7.

Rohde reported to defendant’s Executive Vice President of Sales,

Dennis Wolff (“Wolff”). Wolff Dep. at 4. Randy Schoemann

(“Schoemann”) was the Director of Internal Audit for defendant.

Schoemann Dep. at 5:1-11. In that role, Schoemann was

responsible for, among other things, enforcing corporate policy

and conducting investigations. Id. at 5:18-21.

All employees of defendant received at the onset of

their employment defendant’s Code of Business Conduct and

Ethics. See Code of Business Conduct and Ethics, Def. Mem.

Supp. ex. 1 (hereinafter “Ethics Code”). Plaintiff and Arthur

both stated that they received the Ethics Code when they were

hired and that it applied to them throughout their employment

with defendant. Pl. Dep. at 26:10-20; Arthur Dep. at 91:23-24,

92:1-6.

According to defendant’s Ethics Code, “a conflict of

interest may arise when an employee or member of their family

receive improper personal benefits because of their position at

the [defendant], such as entering into a contract with

[defendant].” Ethics Code; Termination Letter; see also Pl.

Dep. at 28. The Ethics Code included approval requirements for

potential conflicts of interest:

Employees must . . . obtain prior approval from the

Chief Executive Officer or Chief Financial Officer

prior to engaging in any transaction as described in

this section.

Id.; Termination Letter; see also Pl. Dep. at 30:19-23.

Prior to his termination, plaintiff discussed with his

supervisor, Pauly, and other colleagues his idea to form an

entity that he would call Steam Works that could be operated by

plaintiff’s teenage sons to clean trucks, including,

potentially, defendant’s trucks. Pl. Dep. at 33:4-7; 34:1-12;

37:3-6, 40:7-11, 14-16.

Twice during his deposition, Plaintiff recounted a

conversation among plaintiff, Pauly, and the branch manager of

defendant’s Richmond, Virginia branch, Shane Reeves (“Reeves”),

about plaintiff’s desire to help his sons create a power washing

cleaning business as well as plaintiff’s desire that defendant’s

trucks be cleaned.1 Id. at 33:4-7; 34:1-12; 37:3-6; 91:5-21.

The conversation occurred during a dinner in Richmond at some

time in 2022. Id. at 36:19-20. Reeves explained that he and

his sons had set up a grass cutting business, and “the first

contract they ever got was to cut the [grass] at [defendant’s]

1 Inasmuch as the parties use the terms “power washing” and

“pressure washing” interchangeably, the court herein considers

the terms synonymous. See e.g., Pauly Dep at 44:15-24.

Plaintiff clarified in his deposition that the types of power

washer or pressure washer used by defendant and by Steam Works

would be heavy duty equipment and different from the type that

“you and I have at the house maybe to do our own car or

sidewalk” or “what you and I would buy at Lowe’s.” Id. at 69:

13-19. He stated that the heavy-duty power washers or pressure

washers would be used to clean “pipes and hoses for oil trucks

and vac trucks [that] would get just disgusting.” Id. at 70:1-

2.

Richmond branch.” Id. at 36:14-24, 37:1-24, 40:3-11. Plaintiff

recalled Pauly’s explanation that defendant considered third-

party contracts using a bid system:

And I [plaintiff] said, “Well, how do you do that?

How do you start your first contract? How do you know

where to go?”

And [Reeves] said, “Crystal Clean. The first job

I ever got was Crystal Clean.”

* * *

“How did you get that approved?”

[Pauly] said, “You send it out for a bid, and

I’ll take care of that for you.”

Id. at 40:7-11, 14-16.

Plaintiff again recounted the conversation and

reiterated Pauly’s instruction and plaintiff’s understanding

that defendant’s policy regarding third-party contracts required

plaintiff to utilize a bid system and to seek approval from his

superiors:

And I’d already had a conversation with [Pauly] and

[Reeves] going, “how did you get [defendant] to agree

to let you cut your own grass?”

And [Pauly] said, “Well, we sent that out. We get

bids.”

I said, “Well [Pauly], I don’t want anything to

do with that. I’m not going to award myself a bid for

anything.”

[Pauly] goes, “I’ll do that for you. And then if

you’re the lowest bid, you’re the lowest bid.”

I said, “Okay.”

So if that had happened, which it didn’t, then

that would have changed the look, and feel, and tone,

and tenor of what Steam Works might have been.

Id. at 91:5-21.

Prior to plaintiff’s registration of Steam Works with

the West Virginia Secretary of State, which did not occur until

March 29, 2023,2 id. at 44:3-18, and presumably in anticipation

of forming Steam Works, plaintiff learned in 2022 from Pauly and

Reeves that defendant owned a discarded utility trailer and

power washing equipment that plaintiff then purchased for $200

or $300 from defendant, see Bill of Sale and Standard Terms and

Conditions of Sale, Pl. Resp. ex. 8, (hereinafter “Bill of

Sale”); see also Pl. Dep. at 40-43. The trailer and power

washer were located at defendant’s Richmond, Virginia location,

so plaintiff instructed Arthur, who worked for him at the

Charleston branch, to drive to Richmond to obtain the items and

bring them back to Charleston. Arthur Dep. 47:20-21, 48:4-7.

According to Arthur, he put new tires on the trailer and

completed the trip to and from Richmond “a few weeks before the

2 The registration documents for Steam Works, LLC were not

included as part of the record, but the contents of those

documents, which are undisputed, were read into the record

during plaintiff’s deposition. See Pl. Dep. 45-46.

[Service Wire] job” which occurred on March 13, 2023. Arthur

Dep. at 47:16-19.

Plaintiff wrote a check dated March 22, 2023, for

$200, to defendant for the items. See photograph, Pl. Resp. ex.

10. Plaintiff’s employment was terminated, effective April 7,

2023. See Termination Letter. The sale purports to be

memorialized by the Bill of Sale by defendant to “Buyer . . .

Mike Gray of “Equipment . . . 15 ft utility trailer” for $300,

dated April 28, 2023 and signed on behalf of defendant by Mark

DeVita, Authorized Agent, but not signed on the appointed line

by “Buyer . . . Mike Gray, Authorized Agent.” Presumably, the

trailer included the power washer. See Bill of Sale.

Service Wire is a customer of defendant that contacted

Arthur seeking defendant’s services for an on-site emergency

vacuum and power washing job that needed to be done while the

Service Wire equipment was shut down for 24 hours. Pl. Dep. at

85; Arthur Dep. at 37:22-24, 38:1-15. After the Service Wire

job was completed, plaintiff submitted an invoice to defendant

for the job in the company name of “Steamworks” on March 21,

2023.3 See Invoice #03132023001, Pl. Resp. ex. 4 (hereinafter

3 The invoice reflects the name “Steamworks.” The names Steam

Works (two words) and Steamworks (one word) are used

interchangeably at different points throughout the record. See

e.g., Rohde Dep. at 74:14; Wolff Dep. at 70:16. It is

“Invoice”). Upon receipt of the invoice, defendant generated an

expense report for the Service Wire job. See Mike Gray Expense

report for Service Wire #22003, Pl. Resp. ex. 6 (hereinafter

“Expense Report”). The date of the Service Wire job is

memorialized on the Expense Report which includes the

description “for Service Wire Vac job ran Monday 13 March 2023.”

Id.

Arthur explained that he had an established

relationship with Service Wire, so Service Wire contacted him

directly about their need for a machine to be “washed out and

vac-ed out, sprayed out, things like that. They needed a

pressure washer that was mobile.” Id. at 38:6-8, 19-24, 39:1.

He later explained that the power washing job at Service Wire

was “a first-time gig,” indicating he had not performed this

work for the customer before. Id. at 42:24.

Arthur contacted his supervisor, plaintiff, who was

out of town for a business trip at the time of the Service Wire

request, and they discussed over the phone the request for an

emergency power washing job. Id. at 38:18-24, 19:1-13.

undisputed that references to Steamworks and Steam Works are to

the same entity, which was not yet a legal entity at the time of

the Service Wire job. For clarity, the court refers to it as

“Steam Works,” unless quoting directly from the record.

Inasmuch as the defendant did not own power washers,

and in accordance with defendant’s company practice of entering

into third-party contracts to perform work that defendant could

not perform independently, the Service Wire job required

defendant to utilize equipment owned by a third party for power

washing services, and the contract for that third party

equipment required defendant’s approval. See id. at 39-40; see

Pl. Dep. 88; see Pauly Dep. 32. Performance for a customer

under a third-party contract would result in an additional

charge on the customer’s final bill from defendant to include

defendant’s charges plus the cost of the third-party work. See

Pl. Dep. at 87:4-24. Plaintiff explained that the approval

process for third-party vendors required plaintiff to contact

the regional manager for field services who would then find a

vendor who could perform the work requested by the customer.

Id. at 88:1-21. Defendant’s purpose for requiring contracts and

proper approval for third parties to conduct work for defendant

was to ensure that the third party had proper insurance and

qualifications. See Pauly Dep. at 61-63, 55:11-25, 56:1-19.

The regional manager for field services was on

vacation at the time of the Service Wire request, so plaintiff

could not contact him to initiate a search for a third-party to

complete the Service Wire power washing job. See Pl. Dep at

88:1-24, 89:2. Plaintiff contacted his supervisor, Pauly, for

general approval to complete the job. Id. at 89:12-24. Pauly

and plaintiff did not discuss plaintiff or Arthur conducting the

job using plaintiff’s equipment, and plaintiff did not seek

approval to complete the job using his personal equipment or his

side business. Id. at 90:1-21. Plaintiff explained throughout

his deposition his understanding that defendant engaged third

party contracts – and particularly those entered into with

employees’ personal businesses – using a bid system. See e.g.,

Pl. Dep. at 40:3-22, 91:5-21. Pauly instructed plaintiff to “go

rent one.” Id. at 90:2, 92:21-22. When asked if he had made

any effort to rent a power washer, plaintiff replied, “No. I

never made the effort.” Id. at 94:24.

Pauly and plaintiff describe their conversation

wherein Pauly instructed plaintiff to “go rent” a power washer,

and plaintiff stated, “I know a guy that’s got one of those

[power washers]”. Pl. Dep. at 93:23-24, 94:1; see also Pauly

Dep at 61:14-21. Plaintiff asserts that he and Pauly laughed

after Pauly made that statement, and plaintiff interpreted the

comment and laugh as permission to use his own pressure washer

to complete the Service Wire job. See id. at 93-94. Pauly

confirmed plaintiff’s recollection of the conversation and

stated that plaintiff’s pressure washer “didn’t even come to

mind . . . I had totally forgot, and that didn’t even come to

mind that he [plaintiff] was the guy that had one.” Pauly Dep.

at 61:19-25.

Plaintiff fails to show how his conversation with

Pauly wherein Pauly approved the emergency job at Service Wire

amounted to permission from Pauly that plaintiff could rent his

own power washer or that he could forgo the bid system. By

plaintiff’s testimony, and given his tenure with defendant,

plaintiff knew that he needed to obtain a bid or bids for a

third party to conduct the Service Wire job. In no sense could

the conversation between Pauly and plaintiff be construed as

Pauly approving plaintiff to engaging in a contract with the

company. This is especially clear given plaintiff’s testimony

that his conversations with Pauly about his desire to set up a

power washing business were limited to plaintiff establishing

the business for his teenage sons to clean trucks.

After Pauly approved defendant’s Charleston branch to

complete the Service Wire job using a rented power washer,

plaintiff stated to Arthur, “we’ll just use the one I’ve got” to

complete the Service Wire job, and he instructed Arthur to pick

up the power washer from plaintiff’s home and to complete the

Service Wire job. Id. at 97:23-24, 98:1-6. Arthur stated that

plaintiff called and informed him that the Service Wire job was

approved, and to complete the job using plaintiff’s power

washer. Arthur Dep. at 40:1. Following his conversation with

plaintiff in which plaintiff instructed Arthur to use

plaintiff’s power washer to complete the Service Wire job,

Arthur picked up plaintiff’s trailer and power washer from

plaintiff’s home, located in Red House in an adjoining county,

using a truck that had been rented by and paid for by defendant,

and completed the Service Wire job. See Arthur Dep. at 39-42;

see also Expense Report. Arthur stated that he could not recall

whether he returned the trailer and power washer to plaintiff’s

house after completion of the Service Wire job. Id. at 50:21-

22.

Arthur stated that the route from plaintiff’s home was

a fifteen-minute drive to Service Wire and that the job took

four hours to complete. Id. at 45:16-20; 43:19. Presumably,

travel is as much as 45 minutes from the Charleston Branch to

Red House and an equal amount of time to return may also have

been required. Arthur testified that three Service Wire

employees operated plaintiff’s power washer while Arthur

supervised. Id. at 42:16-21, 43:6-22. Arthur, who was paid by

defendant on a commission basis, charged Service Wire that which

the defendant asked to be charged but never received the

commission to which he was entitled therefor from defendant.

Id. at 42:21-24, 46:1-13.

Arthur stated that plaintiff never spoke to him about

the Service Wire job after it had been completed. See id. at

51. Arthur testified that plaintiff never asked him how long

the job took to complete or who operated the power washer, nor

did he discuss how much he intended to charge Service Wire for

the job, or any other billing information related to the job.

Id. at 51:7-24, 52:1-10.

On March 21, 2023, plaintiff submitted or caused to be

submitted an itemized invoice to defendant bearing the name

“Steamworks” and for the total amount of $2,250.00. See

Invoice. The line items on the invoice consisted of charges for

1) rental of equipment in the amount of $1,500; 2) labor of crew

at the rate of $100 per hour, a quantity of 6, for the amount of

$600.00; 3) miscellaneous: gas, diesel for equipment in the

amount of $85.00; and 4) a fuel surcharge in the amount of

$65.00. Id. The invoice also included a $135.00 sales tax

charge but it was not added into the total invoice charge of

$2,250.00. Id. The invoice bore the date March 21, 2023, and

the message “Thank you for choosing Steamworks! We are available

Monday through Friday 8am-5pm and Saturday by appointment.” See

invoice. Plaintiff did not elaborate on how he calculated the

prices or rates listed on the invoice.

It is apparent from plaintiff’s deposition testimony

that at the time of the Service Wire job, Steam Works had not

yet been registered with the West Virginia Secretary of State.

Plaintiff’s use of the name “Steamworks” on his invoice to

defendant for the work done at Service Wire was at most an

instance in which the plaintiff was doing business as Steam

Works and, in effect, the defendant appropriately treated the

invoice as one from plaintiff. See Expense Report.

Schoemann, who investigated employee misconduct for

defendant, explained in his deposition that he began an

investigation into plaintiff’s conduct after he received a

series of emails4 that suggested he “look into” the business

Steam Works and included attachments of photos from the Steam

Works Facebook page. Schoemann Dep. at 11:15-23. Plaintiff has

confirmed that he created a Facebook page reflecting the name

Steam Works, that he took before and after photos of defendant’s

trucks which he had cleaned, and that he never received

permission from defendant to advertise his side business using

4 The emails were not made part of the record.

defendant’s trucks. See photographs, Def. Mem. Supp. ex. 4; see

also Pl. Dep. at 54-55, 59, 64, 71.

According to Schoemann, the emails were originally

sent by one of defendant’s employees to his superior, who

forwarded the emails to Schoemann. Id. He did not specify a

date when he received the emails, but given the timeline

established by the record, they were received by Schoemann

sometime after the Service Wire job on March 13, 2023, and

before plaintiff received the Termination Letter dated April 3,

2023, which reflected an effective termination date of April 7,

2023.

As a result of the contents of the emails, Schoemann

stated that he spoke with a Human Resources officer who worked

for defendant’s Human Resources department, and an investigation

was opened on plaintiff through defendant’s ethics investigation

program called Ethics Point. Id. at 11:24-25, 12:1-23.

Schoemann then pursued an investigation into plaintiff’s

conduct. See id. Schoemann sent all of his notes to a Human

Resources Generalist for defendant. Id. at 25:15-18.

Schoemann gathered information by speaking with

various employees of defendant including employees at the

Charleston branch, members of the Human Resources department,

and corporate executives. Id. at 15:1-25, 16:1-11. A member of

the Human Resources department confirmed to Schoemann that the

phone number listed on Steam Works’ Facebook page matched the

personal cell phone number in plaintiff’s personnel file. Id.

at 16:6-8.

During the course of his investigation, Schoemann also

learned about two instances regarding defendant’s customers,

Turnkey and Astorg, and became suspicious of plaintiff’s

handling of the matters. Id. at 13:21-25, 14:1-25. Schoemann

added the Turnkey and Astorg incidents to his investigation.5

Id.

After Schoemann completed his investigation into

plaintiff’s conduct, he relayed his findings to Rohde and Wolff.

The three had a telephone discussion wherein they “talked about

the three things [presumably the Service Wire, Turnkey, and

Astorg incidents] and we all agreed we were going to terminate

his employment.” Rohde Dep. at 119:21-24. Rohde and Wolff

contacted defendant’s Human Resources department and sought

5 The Astorg and Turnkey are described inconsistently throughout

the record and in the briefings by the parties, so it is unclear

which facts related to which customer, and no dates were

provided to describe the events. See Pl. Dep. at 128-139; see

also Schoemann Dep. at 70:5-18. The events involved 1) the

mishandling of a tote of waste, and 2) the mishandling of

paperwork.

approval to terminate plaintiff’s employment, which approval was

granted. See Rohde Dep. at 90; see also Wolff Dep. at 21-22.

Plaintiff states that he received two separate phone

calls on the day he learned his employment was being terminated.6

Plaintiff first received a phone call from Rohde and Wolff

wherein they inquired of plaintiff about his role in the Turnkey

and Astorg incidents; they did not alert him of their intention

to terminate his employment for any reason during the first

phone call. See Pl. Dep. at 141. Plaintiff received a second

phone call from Rohde and Wolff, the decision-makers, later that

same day wherein they informed plaintiff that he was being

terminated from employment with defendant. Id. Rohde and Wolff

limited this second termination phone call to discussion of

plaintiff’s use of his power washer and his side business to

complete the Service Wire job. Id. Plaintiff described the

contents of the termination phone call:

It was very short and to the point . . . it was

short and sweet, “We have decided that you did – you

had a business outside of Crystal Clean and you didn’t

tell us about it. And we thank you for your years of

service.” And that was about all I remember out of the

whole conversation.

6 The date was not made a part of the record, though it occurred

sometime between the date plaintiff submitted the invoice for

the Service Wire job, March 21, 2023, and the date of

plaintiff’s termination letter, April 3, 2023.

Pl. Dep. at 143: 8, 14-18.

Plaintiff later received the Termination Letter which

reflected violations of defendant’s Ethics Code related to

plaintiff’s conduct regarding the Service Wire incident. The

parties seem to mistakenly assert in their briefing that the

Turnkey and Astorg incidents had some bearing on plaintiff’s

termination, but it is clear from the evidence in the record

that the only reason defendant provided to plaintiff for his

termination in both the termination phone call and subsequent

Termination Letter was plaintiff’s violation of the Ethics Code

by his conduct of orchestrating the Service Wire job to be

completed with his power washing equipment.

II. Procedural History

Plaintiff filed this case in the Circuit Court of

Kanawha County, West Virginia, on July 12, 2023. See Compl.

Defendant removed the case pursuant to the court’s diversity

jurisdiction under 28 U.S.C. § 1332. Plaintiff is a West

Virginia resident, see id. at ¶ 2, and defendant is an Indiana

company with its headquarters and principal place of business in

Illinois, Notice of Removal at ¶ 8. Defendant asserted in the

notice of removal that a reasonable reading of the complaint

establishes, by a preponderance of the evidence, an amount of

controversy in excess of $75,000. Id. at ¶ 21. The amount in

controversy is not contended.

Plaintiff alleges in his complaint age discrimination,

disability discrimination, and retaliation, related to his

employment termination, in violation of the West Virginia Human

Rights Act (“WVHRA”). See Compl.

Defendant moves for summary judgment, asserting, as a

threshold matter, that the WVHRA does not apply to the defendant

because it does not constitute an “employer” under the WVHRA

definition of that term. See Def. Mot. Summ. J. Defendant

alternatively asserts that, if the WVHRA applies to defendant,

then the court should nevertheless grant its motion for summary

judgment because plaintiff has not produced evidence that rebuts

the legitimate reasons that defendant provided to support

plaintiff’s termination. Id. Plaintiff disputes the

defendant’s assertions. See Pl. Resp.

Defendant further asserts that it is entitled to

summary judgment on its counterclaim against plaintiff alleging

plaintiff’s breach of a duty of loyalty to defendant. Id.

III. 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). Courts at this stage do not resolve disputed

facts, weigh evidence, or make determinations of credibility.

See Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.

1995); Sosebee v. Murphy, 797, F.2d 179, 182 (4th Cir. 1986).

“Material” facts are those necessary to establish the elements

of a party’s cause of action. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); see also The News & Observer

Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576

(4th Cir. 2010). A dispute of material facts is “genuine” if,

in viewing the record and all reasonable inferences drawn

therefrom in the light most favorable to the non-moving party, a

reasonable fact-finder could return a verdict for the non-moving

party. See Anderson, 477 U.S. at 248. The moving party is

entitled to summary judgment if the record, as a whole, could

not lead a trier of fact to find for the non-moving party. See

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

“[T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson, 477 U.S.

at 247–48. “[A] party opposing a properly supported motion for

summary judgment ‘may not rest upon the mere allegations or

denials of his pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.’” Id. at 248

(quoting First Nat’l Bank of Ariz. v. City Servs. Co., 391 U.S.

253 (1968) (quoting Fed. R. Civ. P. 56(e))); see also Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986)

(the non-movant “must do more than simply show that there is

some metaphysical doubt as to the material facts”). A non-

movant who “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial” will

lose at summary judgment because “the nonmoving party has failed

to make a sufficient showing on an essential element of her case

with respect to which she has the burden of proof.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

IV. Discussion

A. Applicability of the WVHRA

Defendant asserts that it is entitled to summary

judgment for all of plaintiff’s claims because it contends the

WVHRA does not apply to defendant.7 Specifically, defendant

7 Throughout the briefing, plaintiff and defendant erroneously

cite to a repealed section of the Human Rights Commission, West

Virginia Code § 5-11-1 et seq., Repealed by Acts 2024 c. 208,

eff. Feb. 8, 2024, that has been replaced by § 16B-17-1 et seq.

Defendant only cites to repealed sections, while plaintiff cites

to the current Code section only once, when quoting the

definition of “employer,” then reverts to reference to repealed

Code sections.

asserts that it does not fit the definition of “employer” under

the Act.

“The term ‘employer’ means . . . any person employing

twelve or more persons within the state for twenty or more

calendar weeks in the calendar year in which the act of

discrimination allegedly took place.” W. Va. Code § 16B-17-3(d)

(2024).

By declaration, defendant’s Vice President of Human

Resources, Chris Gordon, stated that “[defendant] has not

employed 12 or more employees in the state of West Virginia for

20 or more weeks in 2023, 2022, or 2021.” Decl. of Chris Gordon

at ¶ 5. Gordon included an employee census for West Virginia as

an exhibit to his declaration which appears to support his

position. Id. at Ex. 1. He also stated that the only employees

who work in West Virginia work for the Charleston branch. Id.

at ¶ 4.

Plaintiff disputes defendant’s position and submitted

an affidavit by which he asserted that twelve or more employees

worked for defendant for twenty or more weeks in both 2023 and

the preceding year 2022, and he listed twelve employees by name

and job title. See Pl. Aff. at ¶ 5-6. He also included the

names and job descriptions of employees who he claims oversaw

the Charleston, West Virginia branch or who covered territory in

West Virginia and should be considered as being employed by

defendant within West Virginia during the relevant years. See

id.

Pursuant to 28 U.S.C. § 1746, a declaration has the

same force and effect as an affidavit. The court must take

allegations in a complaint as true, except where the facts are

controverted by a defendant’s affidavit. See Wolf v. Richmond

Cty. Hosp. Auth., 745 F.2d 904, 907 (4th Cir. 1984) (citing

Black v. Acme Mkts, Inc., 564 F.2d 681, 683, n. 3 (5th Cir.

1977)).

The information contained in Chris Gordon’s

declaration and plaintiff’s affidavit conflicts as to the number

of employees who worked for defendant during the relevant years.

The conflict creates a genuine issue of material fact for which

determination is improper at this stage.

Thus, the court proceeds to defendant’s alternate

arguments that plaintiff fails to establish claims of age or

disability discrimination or retaliation.

B. Discrimination Under the West Virginia Human Rights Act

Plaintiff alleges age and disability discrimination in

violation of the WVHRA. See W. Va. Code § 16b-17-1 et seq. The

Act prohibits employers from “exclud[ing] from, or fail[ing] or

refus[ing] to extend to, a person equal opportunities because of

. . . age . . . [or] disability . . . .” § 16b-17-3(h).

Plaintiff also alleges retaliation in violation of the WVHRA.

See § 16B-17-9(6)(A) (“It shall be an unlawful discriminatory

practice . . . [f]or any . . . employer . . . to . . . [e]ngage

in any form of . . . reprisal.”).

The Supreme Court of Appeals of West Virginia has

consistently held that cases brought under the WVHRA are

governed by the same analytical framework and structures

developed under Title VII, where statutory language does not

direct otherwise. See e.g. W. Va. Univ. v. Decker, 191 W. Va.

567 (1994).

The framework is set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 801 (1973). Under that burden shifting

framework, a plaintiff must first establish a prima facie case.

See e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506

(1993).

The burden of production then shifts to the defendant

to proffer a legitimate, nondiscriminatory reason for the

challenged employment action. Id. at 506. Finally, the

plaintiff is accorded an opportunity to demonstrate that inter

alia, age or disability was a determinative factor in the

defendant’s employment decision or that the defendant’s

articulated rationale was merely a pretext for discrimination.

See id.

Pretext may be shown through direct or circumstantial

evidence of discrimination. If the plaintiff fails to come

forward with evidence rebutting the defendant’s explanation,

then the defendant may be entitled to summary judgment. See

Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981).

“In order to make a prima facie case of employment

discrimination under the [WVHRA] . . . the plaintiff must offer

proof of the following: (1) That the plaintiff is a member of a

protected class[;][8] (2) That the employer made an adverse

8 The WVHRA states that the term “age” means the age of 40 or

above, and “disability” means: “(1) A mental or physical

impairment which substantially limits one or more of such

person’s major life activities. The term ‘major life activities’

includes functions such as caring for one’s self, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning and working; (2) A record of such impairment; or

(3) Being regarded as having such an impairment.” W. Va. Code §

16b-17-3(k), (m).

decision concerning the plaintiff[; and] (3) But for the

plaintiff’s protected status, the adverse decision would not

have been made.” Syl. Pt. 3, Conaway v. Eastern Assoc. Coal

Corp., 178 W. Va. 164, 166 (1986).

The Supreme Court of Appeals of West Virginia has

tempered the third component of the prima facie case, stating,

“Use of the ‘but for’ language in [the Conaway] test may have

been unfortunate, at least if it connotes that a plaintiff must

establish anything more than an inference of discrimination to

make out a prima facie case.” Barefoot v. Sundale Nursing Home,

193 W. Va. 475, 486, 457 S.E.2d 152, 160 (1995). This inference

can be shown by adducing evidence that (1) the plaintiff was a

member of a protected class; (2) he provided competent, capable,

and loyal service to his employer; (3) he was discharged from

employment; and (4) he was replaced by someone not of his

protected class. See Barefoot at 485; see also Prater v. Henry

Schein, Inc., 621 F. Supp 2d 363 (S.D.W. Va. 2008) (“To

determine whether Plaintiff can establish the necessary

inference of discrimination, the Court applies the four

considerations discussed in Barefoot.”).

The Fourth Circuit has held that summary judgment is

appropriate where a plaintiff fails to establish a prima facie

case. Wilson v. Cir. City Stores, Inc., 81 F.3d 153 (4th Cir.

1996) (upholding summary judgment where a plaintiff failed to

establish a prima facie case of discrimination on the basis of

race). If a plaintiff establishes a prima facie case, summary

judgment may still be appropriate if the defendant can show a

legitimate, nondiscriminatory reason for the decision. Hughes

v. Bedsole, 48 F.3d 1376, 1384 (4th Cir. 1995) (upholding

summary judgment where a female plaintiff established a prima

facie case of gender discrimination, but the defendant-employer

rebutted the presumption).

i. Age Discrimination

It is undisputed that plaintiff was 55 years old and

thus a member of a protected class under West Virginia Code

section 16b-17-3(k) at the time defendant terminated his

employment. Pauley, plaintiff’s supervisor, stated in his

deposition that plaintiff was performing well as a branch

manager and that Pauley had no problems with plaintiff’s

performance prior to the events leading to plaintiff’s

termination. Pauley Dep. at 10-11. Similarly, Wolff stated

that plaintiff was a good leader and was respectful, and he

created good growth in the branch. Wolff Dep. at 6-8.

Defendant does not dispute that plaintiff’s replacement was

younger than 40. Inasmuch as the showing a plaintiff must make

as to the elements of the prima facie case establishment of

discrimination in order to defeat a motion for summary judgment

is de minimis, the court accepts plaintiff’s proffered evidence

and finds that plaintiff has established a prima facie case of

age discrimination. See Syl. Pt. 4, in part, Hanlon v.

Chambers, 195 W. Va. 99, 102 (1995).

After the plaintiff has established his prima facie

case, “the burden of production then shifts to the defendant to

proffer a legitimate, nondiscriminatory reason for the

challenged employment action.” Barefoot, 193 W. Va. at 483, 457

S.E.2d at 160 (citing St. Mary’s Honor Ctr., 509 U.S. at 506).

If the defendant carries this burden of production, the

presumption raised by the prima facie case is rebutted, and the

plaintiff must show that the reason given by the defendant is

pretextual. Id. at 507.

Defendant presents as legitimate non-discriminatory

reasons to justify plaintiff’s termination that plaintiff

violated defendant’s Ethics Code when he “confirmed that [he]

and/or his wife owned Steam Works,” and “[i]t was also confirmed

that [plaintiff] told Arthur to use [plaintiff’s] power washer

to complete the Service Wire job.” Def’s Mot. Summ. J. at 9.

Defendant provided plaintiff with a Termination Letter

wherein it noted that plaintiff had violated company policy and

quoted portions of the Ethics Code including those related to

conflicts of interest related to (1) receiving improper personal

benefits because of one’s position at the company, such as

entering into a contract with the company, (2) conducting

impermissible outside employment, and (3) doing business with

the company, in violation of the Ethics Code. See Termination

Letter.

The relevant portions of defendant’s Ethics Code as

quoted in the Termination Letter provide:

A conflict of interest occurs when personal interests

interfere in any way with interests of the Company.

•

A conflict occurs when an Employee takes actions

or has an interest that may make it difficult to

perform their work for the Company objectively

and effectively. A conflict of interest may also

arise when an Employee, or members of their

family, receive improper personal benefits

because of their position at the Company, such as

entering into a contract with the Company. A

conflict of interest may not be obvious.

•

Outside employment – While not encouraged,

outside employment may sometimes be allowed,

provided:

o It does not create a conflict of interest;

o It does not interfere with the Employee’s

performance and/or employment with the

Company;

o It does not involve working for a

competitor; and,

o It is expected that employment with the

Company takes priority over outside

employment.

“Doing business with the Company”

(a) Any Employee, including their immediate

family, who has a significant financial

interest (greater than 5% ownership

interest) in a major customer, vendor, or

any competitor of the Company, must report

this to their immediate supervisor for

referral to the VP Human Resources, or

Internal Audit Department.

(b) Employees must also obtain prior

written approval from the Company’s Chief

Executive Officer (“CEO”) or Chief

Financial Officer (“CFO”) prior to engaging

in any transaction as described in this

section.

Termination Letter; see also Ethics Code at 2-3.

The court accepts the defendant’s facially plausible

reasons for terminating plaintiff based on the justifications

provided in the termination phone call and in the Termination

Letter – in particular, that plaintiff violated defendant’s

Ethics Code by his conduct related to the Service Wire incident.

“Of course, after the employer has set out his reason

for the decision, the employee [has] the chance to rebut the

employer’s evidence with a showing that the stated reason was

merely a pretext for discriminatory motive.” Conaway, 358

S.E.2d at 430. Plaintiff may carry this burden by showing that

the legitimate non-discriminatory reasons were implausible and,

therefore, pretextual. See Barefoot, 457 S.E.2d at 164.

In support of his position that defendant’s legitimate

non-discriminatory reasons were merely pretext for a

discriminatory motive, plaintiff presents evidence that he was a

successful and dutiful employee with no prior disciplinary

problems. He does not argue that the instances listed by

defendant to justify his termination did not occur, but rather,

that his behavior did not violate any company policies regarding

these issues.

Specifically, plaintiff asserts that he did not create

a conflict within the meaning of defendant’s Ethics Code because

he did not “receive improper personal benefits because of [his]

position with [defendant].” Pl. Resp. at 14. Plaintiff asserts

that neither he nor his family received improper personal

benefits because the invoice he submitted from Steam Works for

the Service Wire job was never paid.

It is clear that defendant’s proffered reasons for

terminating plaintiff were legitimate and nondiscriminatory by

virtue of plaintiff’s knowing violation of defendant’s rules for

which he received personal benefit which is at least a quantum

meruit claim for the use of plaintiff’s equipment for which he

was undisputedly never compensated. Plaintiff provided

defendant with a service – the use of his power washer – for

which they owe him compensation. The fact that plaintiff has a

claim against defendant for nonperformance establishes the

prohibited benefit contemplated in defendant’s Ethics Code.

Additionally, The Ethics Code does not specify that a

person must accept financial incentive to receive improper

personal benefit. Indeed, the record shows that defendant

permits its employees to enter into contracts with it through a

bid system, and to receive payment for services if the

employee’s bid is selected. The conflict arises when the

employee benefits “because of their position at the Company.”

This is precisely the conflict that arose when plaintiff, in his

capacity as branch manager, forewent the bid process and

unilaterally selected his own business to perform the service

requested by Service Wire.

It is undisputed that plaintiff owned the power washer

and operated as a vendor to defendant, as evidenced by the

invoice he submitted for the work completed at Service Wire.

Plaintiff was thus bound by the relevant section of the Ethics

Code, 4(b). Inasmuch as the parties agree that Pauly would have

had authority to grant plaintiff permission to complete the

Service Wire job given the emergency nature of the request, see

Wolff Dep. at 85:9-20, the court concludes that company practice

did not require plaintiff to “obtain prior written approval from

the Company’s Chief Executive Officer (“CEO”) or Chief Financial

Officer (“CFO”)” to abide by defendant’s Ethics Code. It is

clear that plaintiff was required to obtain approval from Pauly

or another superior to utilize his own power washer to complete

the Service Wire job, and no such permission was sought or

obtained.

Plaintiff recounted twice during his deposition a

conversation wherein Pauly and Reeves explained to plaintiff

defendant’s process of entering into a contract with a third-

party business that was owned by an employee. He clearly

understood the policies and rules in place for such

transactions, and he violated them through his conduct related

to the Service Wire job.

Plaintiff argues that Pauly was aware of plaintiff’s

intended creation of Steam Works and approved its use for the

Service Wire job. Nothing supports plaintiff’s contention that

Pauly granted plaintiff permission to use his own equipment or

Steam Works to complete the job. This is especially true in

light of Pauly and plaintiff’s prior conversations about the

requirement that plaintiff would need to submit a bid for Steam

Works to do business with defendant. Pauly’s instruction that

plaintiff “go rent” a power washer illustrated that Pauly

intended that plaintiff rent a power washer, not use his own.

While Pauly knew about plaintiff’s desire to create a power

washing company for his teenage sons, the record is clear that

plaintiff did not obtain approval from defendant of a third-

party contract to authorize plaintiff individually or doing

business as Steam Works to perform the Service Wire job or any

power washing for defendant, which plaintiff acknowledged he

understood to be the company policy for such transactions.

Instead, plaintiff, who was on business out of town at

the time, instructed his subordinate, Arthur, that the Service

Wire job had been approved by defendant, to use a truck rented

by defendant to pick up plaintiff’s personally owned equipment

at plaintiff’s house, and to complete the Service Wire job using

that equipment. Plaintiff then invoiced defendant for the work

completed by Arthur – whom defendant was already paying as an

employee on a commission basis – and charged six hours of work

for a total of $600 for a job that Arthur stated took four hours

to complete on the scene, coupled with his travel time that may

have totaled two hours.

Plaintiff argues that defendant’s discriminatory

motive based on age is revealed by various comments plaintiff

claims he heard from members of management. These

unsubstantiated comments are self-serving; nothing in the record

supports the contention that defendant’s managers employed

discriminatory practices or beliefs. Indeed, the only evidence

plaintiff provided about another employee’s termination based on

age related to the termination and re-hiring of Steve Debord.

Pl. Dep. at 152-153. Plaintiff stated that he “wasn’t privy” to

the conversations, but that he believed that Steve Debord was

fired based on his age. Id. Plaintiff’s hunch fails to support

his contention that defendant had a habit of terminating

employees based on age.

Schoemann had never met plaintiff when he conducted

the investigation into plaintiff’s conduct. Similarly, Rohde

and Wolff stated that defendant’s Human Resources department

approved plaintiff’s termination, and nothing suggests that

members of that department were remotely involved in the

discriminatory interactions about which plaintiff complains.

Finally, plaintiff’s reliance on Barefoot is

misplaced. In that case, a Native American nursing assistant

was terminated from her employment after allegedly striking a

patient. As proof of pretext, “the plaintiff offered evidence

that other employees who were not members of the . . . protected

class hit patients and were not discharged.” Barefoot, 457,

S.E.2d at 162. The plaintiff also offered “evidence that the

employer had purged all other [Native American employees] from

its workforce over a period of six to eight months.” Id. The

Barefoot court concluded that the evidence supported a

conclusion that “the defendant’s failure to discipline others

for similar conduct evidenced pretext [] and [that] the

defendant was on a mission to purge Native Americans from its

workforce.” Id.

In contrast, the record in this case does not

demonstrate disparate treatment of similarly situated branch

managers, the position occupied by plaintiff. Despite some

suggestions by plaintiff and Arthur that other employees

committed misconduct but were not terminated, such suggestions

were vague and unsubstantiated. When questioned about the

alleged disparate treatment, Arthur clarified that he had heard

rumors about misconduct by another branch manager in Louisville,

Kentucky who had not been terminated for the misconduct, but

Arthur could not say “how much of this is true and false” and he

“could not recall” whether defendant sanctioned the conduct

underlying the rumors. Arthur Dep. at 92:20-21, 93:19-23.

Further, the record does not support plaintiff’s assertion that

defendant had a settled purpose to “force[] out or terminate[]”

branch managers “[b]ecause they wanted new blood.” Pl. Dep.

150:9-12. Plaintiff’s claim is unpersuasive insofar as he was

over forty years of age when he was hired in 2011, and he was

subsequently promoted to branch manager.

Moreover, Arthur was younger than 40 years old when he

was fired for his participation in the Service Wire incident.

Defendant’s evidence supports the position that the Service Wire

incident was an egregious violation of defendant’s Ethics Code,

and Arthur was a less culpable employee acting under plaintiff’s

direction and was terminated for his participation in the

incident. Under these facts, defendant has shown the legitimacy

of its reasons for terminating plaintiff and the absence of a

discriminatory motive.

The defendant gives as its nondiscriminatory,

legitimate reason for terminating the plaintiff his failure to

abide by its Ethics Code, constituting a conflict of interest.

He did so in that he did business as a company he called Steam

Works, being a business outside the employment of the defendant,

without disclosing it. And he did so by engaging his own

equipment in fulfilling the Service Wire contract that he caused

to be performed for his own improper personal benefit, using the

rental truck of the defendant and one of his subordinate

employees who was at the same time working on a commission basis

for the defendant, all without the approval of any one of his

supervisors, by virtue of which he billed the defendant for

$1,500 for the use of his own power washer and utility trailer.

The defendant knew nothing of Steam Works until defendant

received the invoice in the name of Steam Works for the Service

Wire project.

“[U]nless the employer has come forward with evidence

of a dispositive, nondiscriminatory reason as to which there is

no genuine issue and which no rational trier of fact could

reject, the conflict between the plaintiff’s evidence

establishing a prima facie case and the employer’s evidence of a

nondiscriminatory reason reflects a question of fact to be

resolved by the factfinder after trial.” Cronin v. Aetna Life

Ins. Co., 46 F.3d 196, 203 (2nd Cir. 1995).

In light of plaintiff’s violations of the Ethics Code

and defendant’s use of those violations as the basis for

terminating plaintiff, the court determines that defendant has

produced plausible, legitimate and non-discriminatory reasons

for terminating plaintiff. Plaintiff has failed to adduce

plausible evidence that would allow a reasonable jury to find

that defendant’s legitimate non-discriminatory reasons were

pretextual as to age discrimination.

ii. Disability Discrimination

Turing to plaintiff’s argument that defendant engaged

in disability discrimination against him, both the WVHRA and the

federal Americans with Disabilities Act of 1990 (ADA) prohibit

employment discrimination against a qualified individual with a

disability. W. Va. Code § 16b-17-3(h); 42 U.S.C. §§ 12101-12213

(1990). The prohibition of disability discrimination extends to

denial of employment opportunities based on the theories of

disparate treatment and disparate impact. Skaggs v. Elk Run

Coal Co., 198 W. Va. 51, 63 (1996).

The disparate treatment model provides that an

employer may not deny job opportunities to qualified

individuals because of their disabilities. Thus, the

law protects persons with impairments from being

denied employment by virtue of an employer’s hostility

to those who are disabled or its stereotypical

assumptions about their capabilities. See

e.g., Davidson v. Shoney's Big Boy Restaurant, 181 W.

Va. 65, 380 S.E.2d 232 (1989). In such cases, an

employer’s animus determines its liability. The

disparate impact model bars an employer from relying

on employment criteria that disproportionately affect

a protected class but which are not job related. See

e.g., West Va. Univ./W. Va. Bd. of Regents v.

Decker, 191 W. Va. 567, 447 S.E.2d 259 (1994).

Id. In Skaggs, the court discussed the duty of employers under

the WVHRA to provide reasonable accommodations for employees

with known impairments to allow employees to perform the

essential functions of the job. Id. at 65. The court held:

To state a claim for breach of that duty, a plaintiff

may 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 the job;

(4) A reasonable accommodation existed that would meet the

plaintiff's needs;

(5) The employer knew or should have known of the

plaintiff's needs and of the accommodation; and

(6) The employer failed to provide the accommodation.

Id.

“An employer may defend against a claim of reasonable

accommodation by disputing any of the above elements.” Id. at

66. Accordingly, if the defendant can show that a reasonable

jury could not find in favor of plaintiff on at least one of the

Skaggs elements, then summary judgment in favor of defendant is

appropriate. See id.

Upon the following review of the record before it, the

court finds that plaintiff cannot show that defendant was aware

of any disability of plaintiff once he returned to work without

restrictions on January 2, 2023 or that defendant knew or should

have known of any need for an accommodation of plaintiff.

The court considers first whether plaintiff satisfies

the first prong of the McDonnell Douglas and Skaggs analyses,

that is, that he is a qualified person with a disability.

Plaintiff contends that he satisfies this requirement because he

underwent back surgery in the fall of 2022, several months

before his termination in April of 2023. Pl. Resp. at 20; Pl.

Dep. at 157:17.

The term “disability” applies to a “physical

impairment which substantially limits one or more of a person’s

major life activities. The term ‘major life activities’ includes

functions such as . . . performing manual tasks . . . and

working.” W. Va. Code § 16b-17-3(m)(1). “Disability” can also

mean “[a] record of such impairment.” W. Va. Code § 16b-17-

3(m)(2).

The date of plaintiff’s back surgery was not

established, but plaintiff provided a Doctor’s note on

letterhead from St. Mary’s Medical Center located in Huntington,

West Virginia, indicating that he was seen by a nurse on

November 29, 2022. See Letter from Unknown regarding M. Gray,

Nov. 29, 2022, Pl.’s Resp. Ex. 19. It is undisputed that the

Doctor’s note is related to a back surgery that plaintiff

underwent on or before November 29, 2022.

The letter includes the following restrictions and

accommodations:

Mr. Gray may return to work on 11/30/22 with the

following restrictions: no lifting more than 10

pounds, no bending, twisting or stooping and he may

drive. Restrictions apply until 01/02/23 at which time

he may work with no restrictions.

Id.

Since plaintiff was restricted at work and a record of

his restrictions was memorialized in a doctor’s note, the court

assumes, arguendo, that plaintiff could establish at trial that

he was disabled to the extent he was restricted by his doctor’s

orders.

Neither party contends that defendant failed to

accommodate the restrictions contained in the Doctor’s note.

There are no facts to indicate that, after plaintiff’s known

restrictions ended and he returned to unrestricted work a month

or so thereafter, that plaintiff informed defendant that he

continued to suffer from a disability or that he requested an

accommodation.

Indeed, plaintiff admitted that defendant accommodated

his post-surgery restrictions by, for example, permitting him to

work from home for a week after his surgery. Pl. Dep. at

157:20-23. Once plaintiff returned to the office, plaintiff

described his at-work restrictions: “I couldn’t drive. I

couldn’t lift more than three or four pounds. I couldn’t walk or

stand for long periods.” Id. at 159:9-11. Plaintiff offers no

facts to indicate that defendant failed to accommodate the

restrictions contained in the Doctor’s note or those he

described in his deposition.

It is undisputed that plaintiff’s restrictions related

to his back injury ended on January 2, 2023. See Doctor’s note.

His termination, which plaintiff believed occurred on April 3,

2023, based on the date on the Termination Letter, occurred 91

days later.9

It is held that three months is too tenuous to support

a reasonable inference of causation. Ali v. BC Architects

Engineers, PLC, 832 F. App’x 167, 173 (4th Cir. 2020), as

amended (Oct. 16, 2020) (citing Clark Cnty. Sch. Dist. v.

9 Plaintiff asserts that he believes his termination date was

April 3, 2023 because that is the date reflected on the

Termination Letter. The Termination Letter instructs that

plaintiff’s termination was effective April 7, 2024. The court

accepts plaintiff’s statement of his belief as true and conducts

its analysis assuming that plaintiff’s termination date was

April 3, 2023.

Breeden, 532 U.S. 268, 273-74 (2001) (explaining that temporal

proximity may suffice to establish causation when protected

activity and adverse action are “very close.”)). In Ali, an

employee of a company complained about racial discrimination

three months before applying for a different position within the

defendant company. Id. at 173. The court upheld the district

court’s dismissal of the plaintiff’s discrimination claim

because the defendant offered sufficient nondiscriminatory

reasons for refusing to promote her. Id. at 171. When

considering the plaintiff’s retaliation claim, the Fourth

Circuit determined that “the temporal proximity between that

reporting and [the company’s] failure to select her for the

position is too tenuous to support a reasonable inference of

causation.” Id. The length of time does not inherently render

the plaintiff’s prima facie case unsuccessful, though “two

months and two weeks” between a “complaint and the adverse

employment action is sufficiently long as to weaken

significantly the inference of causation between the two

events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.

2003). In King, the Fourth Circuit concluded that a plaintiff

established a prima facie case of retaliatory discharge, but the

defendant employer successfully rebutted the presumption of

discrimination by showing it had legitimate, non-discriminatory

reasons for terminating the plaintiff, and the plaintiff offered

no evidence of pretext. Id. at 150.

Finding that plaintiff was temporarily disabled until

January 2, 2023, and considering he was terminated three months

later, plaintiff has failed to establish that defendant knew or

should have known that he required accommodation beyond January

2, 2023.

The court declines to accept plaintiff’s argument that

an employer who learns that an employee underwent a surgery, for

which the employer accommodated the employee to the extent of

the employee’s doctor’s orders, should be treated as having

knowledge that the employee is indefinitely disabled.

Though the WVHRA is separate from the ADA, “cases

decided under the ADA are also helpful in deciding our cases

under the [WVHRA].” Hosaflook v. Consolidation Coal Co., 210 W.

Va. 325, 479 S.E.2d 174, n. 10 (1997). When analyzing the

requirement that an employee inform an employer of a need for an

accommodation, the Fourth Circuit has found, “[t]he burden to

provide notice is not an onerous one: the employee does not need

to mention the ADA or use the phrase ‘reasonable accommodation,’

but need only inform the employer of both the disability and the

employee’s need for an accommodation for that disability.”

Schneider v. Giant of Md., LLC, 389 F. App’x. 263, 270 (4th Cir.

2010) (per curiam).

Nothing in plaintiff’s evidence suggests that he put

defendant on notice of a disability continuing from his back

surgery after he was reasonably accommodated to the extent of

his doctor’s restrictions. When asked whether his superiors who

were aware of his back surgery had raised any problems about his

initial restrictions, plaintiff responded, “Not in an official

language or conversation.” Pl. Dep. at 164:6. When plaintiff

was asked whether he had any restrictions after he returned to

his normal work duties, he replied, “No, not that I remember.”

Id. at 159:20. Defendant had no reason to question the explicit

language contained in plaintiff’s Doctor’s note which stated

that plaintiff’s restrictions applied until January 2, 2023, “at

which time he may work with no restrictions.”

Plaintiff stated that he determined that defendant

discriminated against him for his continued struggles after his

back surgery based on “how [he] viewed it” and his opinion that

he “was no longer the valued player that [he] had been before

the surgery.” Pl. Dep. at 161:14-16. The only proposed example

of discrimination related to his back injury occurred when

plaintiff travelled to Norfolk, Virginia for a business trip,

but, aside from his explanation that he ordered a rideshare

service to transport him to a restaurant while his colleagues

walked, plaintiff provided no evidence to support his

perspective that defendant knew or should have known that he

continued to struggle from his back surgery, that his challenges

amounted to a disability, or that they failed to accommodate his

needs. See id. at 164-166. Indeed, plaintiff could not recall

when the trip to Norfolk occurred, only that it “was one of the

first things I did after I was given permission to

drive . . . .” Id. at 164:16-18. Plaintiff was explicitly

permitted to drive throughout his recovery from his back

surgery. See Doctor’s note (“he may drive.”) Even assuming

plaintiff believed he was restricted from driving, plaintiff

concedes that the events in Norfolk occurred soon after

plaintiff’s restrictions were lifted.

Plaintiff also emphasizes two cryptic quotes found in

three handwritten notes, see Documents, Oct. 5, 2020, Pl.’s

Resp. Ex. 19., in plaintiff’s personnel file that include

language that plaintiff believes is “sufficient to raise an

inference that [d]efendant viewed [plaintiff] as a liability due

to his physical condition and wanted him gone.” Pl’s Resp. at

23. While there is a lack of analysis by the parties with

respect to the relevancy of those three notes, the court finds

that the notes, two of which are dated October 5, 2020, and the

third of which is undated, reflect the following: On Monday

September 21, 2020, the plaintiff reported for work, after which

the plaintiff went to an emergency room and underwent

gallbladder surgery on September 23, 2020. He then returned to

work on Monday October 5, 2020 and, inasmuch as it is noted,

“need Doctor’s note,” indicating his employer had not been

presented with a doctor’s note that plaintiff could return to

work, his employer doubtless became fearful of being subjected

to what is next stated as “huge liability,” as a result of

which, Jeff Shurtz, regional manager, gave the direction to “get

him out of branch today,” and the plaintiff was accordingly

directed to go home. None of the above quoted remarks, written

two and one-half years prior to his termination, has any bearing

on the issues in this case. Moreover, Jeff Shurtz is not shown

to have had anything to do with the plaintiff’s termination.

Indeed, he left the employment of the defendant about one year

after the October 5, 2020 notes were written.

After careful review of the record, the court finds

that plaintiff fails to rebut, on grounds of disability

discrimination, defendant’s legitimate reasons supporting its

decision to terminate plaintiff.

iii. Retaliation

Plaintiff argues that defendant retaliated against him

for requesting reasonable accommodation and/or leave, in

violation of the WVHRA.10 See Pl.’s Resp. at 26.

To make out a prima facie case of retaliation,

plaintiff must show (1) that he engaged in a protected activity;

(2) that his employer took an adverse employment action against

him; and (3) that a causal connection existed between the

protected activity and the asserted adverse action. See King,

328 F.3d 145 at 150-51 (citing Williams v. Cerberonics, Inc.,

871 F.2d 452, 457 (4th Cir. 1989)).

Assuming again that defendant was disabled as a result

of his back surgery from the dates November 29, 2022 until his

restrictions were lifted on January 2, 2023, and accepting the

undisputed fact that plaintiff’s employment was terminated, the

court determines that plaintiff has satisfied prongs one and two

of the analysis.

As to the third prong regarding a causal link between

the protected activity and the asserted adverse action,

plaintiff alleges that his termination three months after his

restrictions related to his back surgery were lifted amounts to

10 Plaintiff only alleges retaliation with regard to his

disability claim.

an inference of retaliation. Plaintiff offers no argument to

support his contention but urges the court to accept his

allegation simply because “just a couple of months after

[plaintiff] returned to full-time duty his employment was

terminated.” Pl. Resp. at 26. He asserts that “[t]his

proximity may lead to an inference of retaliation by a

reasonable juror.” Id. at 26-27.

As stated, the lapse of three months, as in this case,

is too tenuous to support a reasonable inference of causation.

Ali, 832 F. App’x at 173. While the Fourth Circuit clarified

that the length of time does not inherently render the

plaintiff’s prima facie case unsuccessful, King, 328 F.3d at

n.5, plaintiff presents no evidence or argument of a causal link

between his disability and his termination. Nor does he

plausibly suggest that any accommodation was requested or needed

during that period. He simply asserts that he was disabled and

terminated, and that those facts alone amount to evidence of

retaliation. Without more, and given the three-month lapse of

time between the events, plaintiff has shown no causation

between the two events.

C. Summary

In addition to the foregoing, the plaintiff relies as

well on mixed motive, coupling both alleged age and disability

discrimination. Inasmuch as there is no genuine issue of

material fact on any aspect of each the age and disability

discrimination claim, as well as the retaliation claim, the

court concludes that defendant’s motion for summary judgment is

granted as to all of those claims.

D. Defendant’s Counterclaim and Motion for Summary Judgment

Having determined that summary judgment should be

entered for defendant on plaintiff’s discrimination and

retaliation claims, the court considers defendant’s counterclaim

by which defendant alleges that plaintiff breached his duty of

loyalty to defendant.11 Def. Mem. Supp. at 19. Defendant moves

for summary judgment on the counterclaim. See Def. Mot. Summ.

J.

Defendant alleges that plaintiff breached a duty of

loyalty by self-dealing at the expense of defendant. Def. Mem.

Supp. at 19. Specifically, defendant asserts that plaintiff

11 The defendant-company is the counter-claimant, and the

plaintiff-employee is the counter-defendant with regards to the

counterclaim. To maintain clarity and consistency throughout

this order, the court continues to refer to the counter-claimant

as “defendant” and the counter-defendant as “plaintiff”.

used defendant’s property for his own personal advantage by

using defendant’s employees to create advertising materials for

his personal business, having a subordinate employee travel out

of state to pick up a power washer, and using an employee and

its rented vehicle to transport the power washer to and from a

job for plaintiff’s profit. See id. at 19-20. Plaintiff

opposes defendant’s counterclaim, arguing that plaintiff never

competed with defendant and that defendant was not harmed by

plaintiff’s conduct. Pl.’s Resp. at 27-29.

Plaintiff, through counsel, did not cite caselaw in

the briefing on this issue. See Pl.’s Resp. at 27-29. Instead,

plaintiff conclusively asserts that “plaintiff in no way

competed against the [d]efendant.” Id. at 27. Plaintiff

reiterates that Steam Works never bid on jobs in competition

with defendant and points to Schoemann’s testimony wherein he

stated that the mere existence of Steam Works would not be a

conflict of interest under the Ethics Code. Id. (citing

Schoemann Dep. at 34:12-16).

“[T]he first duty of the agent is to be loyal to his

trust.” Timberline Four Seasons Resort Mgmt. Co. v. Herlan, 223

W. Va. 730, 739 (2009) (citing Moore v. Turner, 137 W. Va. 299,

316 (1952)). Indeed, it is a general principle of agency that

an agent or employee is bound to exercise the utmost good faith,

loyalty, and honesty toward his principal or employer. See 3

Am. Jur.2d Agency §205.

An employee such as plaintiff who manages a branch of

a national company’s business and possesses the decision-making

power to select and propose third-party bids to defendant has an

attendant fiduciary duty to use that power for the benefit of

the employer. See Pomeroy, Inc. v. Four Jaks. Inc., 11 Fed.

App’x. 275 (4th Cir. 2001) (unpublished). Similarly, an

employee is prohibited from using an employer’s property for

personal advantage and from deriving secret profits by virtue of

the employment relationship. Lucas v. United Fabricating, Inc.,

Civ. Action No. 5:06-CV-154, 2007 U.S. Dist. LEXIS 64269, at

*14-15 (N.D.W. Va. Aug. 29, 2007).

As an employee of defendant, plaintiff owed fiduciary

obligations to his employer, and he breached those obligations

when he used his employment-related authority to direct his

personal business to defendant’s customer, Service Wire, in

exchange for a demand for payment without notifying his employer

of this arrangement. Conduct of this sort amounts to breach of

fiduciary obligations under West Virginia and common law

sources. See Gaston v. Wolfe, 132 W. Va. 791, 797 (1949); see

also Pomeroy, Inc., 11 Fed. App’x. 275 at *2 (citing Black’s Law

Dictionary 340 (6th ed. 1990)).

As explained above, plaintiff’s conduct of forgoing

defendant’s established protocol regarding third-party contracts

amounts to a benefit to plaintiff who now has a quantum meruit

claim for the use of his power washer inasmuch as plaintiff used

his position as branch manager to unilaterally select and direct

his own business as the third-party contractor to complete the

Service Wire job. Plaintiff derived personal advantage in the

course of depriving defendant of its choice of qualified vendors

and other possible competitors that it could trust to do without

undue risk to defendant who routinely considers such matters as

the insured status of third-party vendors. Plaintiff understood

defendant’s bid system for third-party vendors and acknowledged

that he submitted no bids for the Service Wire job.

Inasmuch as there is no genuine issue regarding

plaintiff’s breach of his duty of loyalty to defendant, summary

judgment in favor of the defendant is appropriate.

Vv. Conclusion

Based on the foregoing, defendant’s motion for summary

judgment on (1) plaintiff’s claims against it under the WVHRA,

and (2) its counterclaim against plaintiff for breach of

loyalty, filed on July 12, 2024, is GRANTED.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: October 31, 2024

sl ee □

Jo . Copenhaver, Jr.

Senior United States District Judge

54