# Gray v. Heritage-Crystal Clean, LLC

> District Court, S.D. West Virginia · October 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10731976

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** October 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10731976

## How later opinions describe it (automated extraction)

- explaining that temporal proximity may suffice to establish causation when protected activity and adverse action are “very close.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731976. Public record. Not legal advice.