Farrell v. Mon Health Care, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TONYA FARRELL,

Plaintiff,

v. CIVIL ACTION NO. 1:23-CV-60

(KLEEH)

MON HEALTH CARE, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [ECF NO. 35]

Pending before the Court is Defendant Mon Health’s Motion for

Summary Judgment [ECF No. 35]. For the reasons discussed herein,

the Motion is GRANTED.

I. RELEVANT PROCEDURAL HISTORY

On or about July 7, 2023, Plaintiff Tonya Farrell (“Plaintiff”

or “Farrell”) filed suit against Defendant Mon Health Care, Inc.

(“Defendant” or “Mon Health”) in the Circuit Court of Monongalia

County, West Virginia. ECF No. 1-1. Plaintiff’s Complaint alleges

(1) Family Medical Leave Act retaliation and discrimination; (2)

retaliation in violation of public policy for reporting a HIPAA

violation; and (3) common law wrongful termination. ECF No. 1-1.

Thereafter, Mon Health removed the action to this Court pursuant

to 28 U.S.C. §§ 1441 and 1446, asserting federal question and

supplemental jurisdiction. ECF No. 1.

On September 19, 2024, Defendant filed Defendant Mon Health’s

Motion for Summary Judgment [ECF No. 35] and supporting memorandum

[ECF No. 36]. Plaintiff responded in opposition to summary

judgment on October 3, 2024 [ECF No. 37] and Defendant replied in

support of its Motion on October 17, 2024 [ECF No. 38].

On October 24, 2024, Farrell filed Plaintiff’s Motion to

Strike, or in the alternative, Motion to Reopen Discovery and for

Leave to File Surreply Regarding Defendant’s Motion for Summary

Judgment [ECF No. 39]. Defendant responded in opposition [ECF No.

40] and Plaintiff replied in support of her motion [ECF No. 42].

By separate Order, the Court denied Plaintiff’s motion [ECF No.

39] and ruled the Court would not exclude evidence of Mary Lou

Frizza’s FMLA use. ECF No. 77.

The Court convened for oral arguments on the subject motion

on January 22, 2025. The Motion for Summary Judgment is fully

briefed and ripe for review.

II. FACTUAL BACKGROUND

Farrell was first hired by Mon Health on December 13, 2020,

as a full-time Entrance Screener for the Wedgewood Clinic. ECF

No. 35-2 at p. 22. Beginning in April 2021, Farrell moved into

the position of Registration Representative at the Wedgewood

Clinic. ECF No. 35-1, Farrell Dep. at p. 18. As the Registration

Representative, Farrell’s job duties included performing the

patient registration process; communicating with patients and

their families; answering phones; handling money; verifying and

authorizing insurance; and obtaining patient information and

documenting patient data in Mon Health’s electronic health record

and other systems. ECF No. 35-2 at pp. 25-27. Farrell reported

directly to Clinic Manager Marcy Cornell (“Manager Cornell”), who

was supervised by Primary Care Service Line Director Erin Hathaway

(“Director Hathaway”). ECF No. 35-1 at p. 21; ECF No. 35-3,

Cornell Dep. at p. 19:4-5; ECF No. 35-4, Hathaway Dep. at p. 20.

During Plaintiff’s employment at the Wedgewood Clinic, Mon Health

employed four Registration Representatives on staff who worked

staggered shifts. ECF No. 35-1, Farrell Dep. at p. 31; ECF No.

35-3, Cornell Dep. at p. 46:16-22; ECF No. 35-4, Hathaway Dep. at

p. 37:12-13. Plaintiff worked the 8:00 a.m. to 4:00 p.m.

Registration Representative shift consistently until July 2022.

ECF No. 35-6 at p. 109; ECF No. 35-1, Farrell Dep. at p. 31.

As a Registration Representative, Farrell had to regularly

access confidential medical records to complete her job duties.

Accordingly, Mon Health trained employees, including Plaintiff, on

its confidentiality and patient privacy policies. See ECF No. 35-

3, Cornell Dep. at pp. 26:14-27:11. New employees were instructed

on how to report compliance concerns and trained on Mon Health’s

confidentiality and patient privacy policies and expectations

during new employee orientation. ECF No. 35-2 at pp. 58-59. The

orientation also covered laws and regulations relevant to the

health care industry, including HIPAA. Id. at p. 49. Plaintiff

received this training twice, once in December 2020, when she first

started, and again in 2021, after transitioning to the Registration

Representative role. ECF No. 35-1, Farrell Dep. at p. 37:11-15;

ECF No. 35-2 at pp. 38-59.

Farrell agreed to comply with Mon Health’s Nondisclosure of

Confidential Information policy on November 22, 2020. The policy

barred Plaintiff from disclosing her computer password to anyone,

allowing anyone to use her password for access, or using anyone

else’s password for access. ECF No. 35-2 at p. 61. The policy

also barred Plaintiff from accessing or reviewing patient records

without authorization. Id. Plaintiff also received electronic

access to Mon Health’s Employee Handbook. Id. at p. 60. Mon

Health has a Sanction Policy for HIPAA Violations, which provides

that such violations could be grounds for disciplinary action up

to and including termination. ECF No. 35-2 at pp. 62-65.

Mon Health provided continued video training to its employees

on various topics including protected health information (“PHI”),

HIPAA, confidentiality, employee benefits, and compliance. ECF

No. 35-1, Farrell Dep. at pp. 35-36; ECF No. 35-2 at pp. 29-31.

The HIPAA PHI policy instructed employees to not access PHI unless

necessary for their jobs. ECF No. 35-2 at pp. 32-37. Specifically,

employees were advised that “‘[s]nooping’ in patient medical

records is never ok.” Id. at p. 32. Further, Mon Health utilized

a “lock before you walk” policy that required employees to lock

their workstations to prevent others from accessing their

computers, before leaving their desks. Id. at p. 35. Plaintiff

understood Mon Health’s policies regarding PHI and its

expectations for employee to lock their computer workstations. ECF

No. 35-1 at pp. 36-37.

Beginning in 2022, Plaintiff applied for and was granted

intermittent FMLA leave to care for her son. ECF No. 35-1 at pp.

43-44; ECF No. 35-2 at pp. 76-79. Through Mon Health’s third-

party administrator, New York Life, Farrell was initially granted

intermittent leave from February 23, 2022, to August 22, 2022,

entitling Farrell to use up to 480 hours to care for her son’s

medical needs. ECF No. 35-2 at pp. 76-79. Farrell received an

approval letter from New York Life, dated April 11, 2022,

instructing Farrell on how to report the leave time she used. Id.

Farrell was approved for additional intermittent FMLA leave from

August 23, 2022, to February 22, 2023. ECF No. 35-2 at pp. 80-

82. The second leave period allowed Farrell to take leave for two

occurrences of up to 32 consecutive work hours, every month and

two office visits of up to two hours, every month. Id.

To accommodate Farrell’s need for intermittent leave, and

ensure proper coverage at the Wedgewood clinic for opening, Mon

Health would either schedule Plaintiff for the 9:00 a.m. to

4:00 p.m. shift or schedule two Registration Representatives to

start work at 7:45 a.m. ECF No. 35-1, Farrell Dep. at pp. 140-

41; ECF No. 35-6, Smith Dep. at pp. 70:15-72:6. On July 25, 2022,

Farrell emailed HR Business Partner Tiffany Smith regarding

concerns with her schedule being changed. ECF No. 35-6 at p. 109.

Farrell expressed that she felt the scheduling change was “a

personal attack because of previous things going on.” Id.

Director Hathaway reminded Plaintiff on August 16, 2022, that

she must report her used FMLA leave time to New York Life. ECF

No. 35-2 at p. 83. Director Hathaway contacted Farrell again on

September 6, 2022, and September 13, 2022, because she had not yet

reported 297.3 hours of FMLA benefits to New York Life. ECF No.

35-2 at p. 89. After speaking with New York Life, Director

Hathaway emailed Farrell again on September 19, 2022, because she

learned that Farrell had still not reported her used leave. ECF

No. 35-2 at p. 91. On September 23, 2022, Director Hathaway

escalated the situation to her superiors, seeking assistance,

because though Farrell told her she would call New York Life after

work that week, the FMLA hours still had not been reported. ECF

No. 35-2 at pp. 92-93. Plaintiff indicated via email on September

27, 2022, that she was working to provide the correct hours to New

York Life, while tending to her son’s medical needs. ECF No. 35-2

at p. 90.

On October 22, 2022, Director Hathaway contacted Farrell,

Manager Cornell, Jennifer Carr, and Tiffany Smith, stating that

Plaintiff had not yet reported her leave to New York Life, nor had

she gotten 200 hours of her leave approved. ECF No. 35-2 at pp.

94-95. Meaning, Farrel reported to Mon Health approximately 200

hours of FMLA leave that was not approved/reported to New York

Life. ECF No. 35-2 at p. 94. On November 1, 2022, Associate

General Counsel Heather Wright contacted Director Hathaway, Nicole

Linger, Jennifer Carr, and Tiffany Smith and directed Human

Resources to calculate Plaintiff’s absence occurrences and prepare

appropriate disciplinary action. ECF No. 35-2 at p. 96. The email

indicated that the discipline and absences could be adjusted if

Farrell reported her protected absences to New York Life, as

previously directed. Id. Ultimately, Farrell did not receive any

discipline for her attendance issues and failure to properly

document her leave. ECF No. 35-1, Farrell Dep. at pp. 45-47; ECF

No. 35-4, Hathaway Dep. at pp. 42:22-43:9. Farrell was never

denied leave to take her son to his medical appointments. ECF No.

35-1, Farrell Dep. at p. 59.

In early September 2022, Plaintiff’s co-workers, Mary Lou

Frizza and Marsha O’Bryan, raised concerns that Farrell might have

accessed and reviewed their medical charts to Director Hathaway

because Farrell knew intimate details regarding their medical

history. ECF No. 35-4, Hathaway Dep. at pp. 65:17-66:9.

Accordingly, Director Hathaway investigated the allegations, which

included requesting an audit of Plaintiff’s chart access. ECF No.

35-4, Hathaway Dep. at p. 66:4-7; ECF No. 35-8 at pp. 2-3. System

Privacy Officer Lauren Gregory audited Farrell’s access and

determined that Plaintiff accessed Frizza’s, O’Bryan’s, and Kilee

Riggleman’s charts on multiple occasions. ECF No. 35-8 at pp. 2-

3. Upon review of the audit, Director Hathaway referred the matter

to Human Resources because she believed Farrell’s access to the

charts included inappropriate access. Id. For example, the audit

reflected that Farrell accessed a mammography encounter for

Frizza. Id.

Director Hathaway met with Farrell regarding the compliance

audit, noting inappropriate access of her coworkers’ medical

records on four occasions in 2022. ECF No. 35-6 at p. 105. Farrell

denied accessing her co-workers’ records improperly and stated

that she only used medical records as necessary for scheduling

appointments. Id. Farrell further postulated that someone else

could have accessed the records under her computer log-in because

she did not log off from her workstation when going to lunch. Id.;

ECF No. 35-1, Farrell Dep. at p. 68. Director Hathaway advised

Plaintiff that she must always log out of her workstation when

stepping away from her desk. ECF No. 35-6 at p. 105. Farrell

acknowledged that allowing others to access records under her log-

in violated Mon Health’s HIPAA policy. Farrell Dep. at p. 68.

Farrell was issued a Final Written Warning (“FWW”) on

September 21, 2022, for violating Mon Health’s HIPAA Privacy

Policy. ECF No. 35-6 at p. 105. The FWW set forth expectations

for Farrell moving forward that included only accessing records

necessary for her job duties; locking and logging out of her

workstation when stepping away; and performing all of her job

functions. Id. The FWW also warned that any further violation of

Mon Health’s privacy policy could result in disciplinary action,

up to termination. Id.

Thereafter, on October 24, 2022, Farrell called Mon Health’s

Compliance Line to report that co-workers Frizza and O’Bryan were

making accusations regarding her use of FMLA leave. ECF No. 35-9

at p. 2; ECF No. 35-1 at p. 55. Plaintiff reported that Frizza

and O’Bryan claimed she was taking off time for attention, accused

her of “wanting” her son to be sick, and that Frizza specifically

claimed Plaintiff’s son was not sick. ECF No. 35-9 at p. 2.

Plaintiff claimed she first reported the behavior to Clinical

Manager Patricia Stewart a month prior but that the behavior

continued. Id. Farrell further expressed concern that Director

Hathway would not address Frizza and O’Bryan’s behavior. Id.

HR Business Partner Smith directed Manager Cornell and

Director Hathaway to investigate Farrell’s claims by meeting with

each of the employees involved and ensure the employees understood

that the alleged behavior was inappropriate. ECF No. 35-6 at p.

103; ECF No. 35-6, Smith Dep. at pp. 33:13-36:5. On or about

October 27, 2022, Manager Cornell and Director Hathaway met with

Frizza and O’Bryan individually, who denied making the accused

comments regarding Farrell. ECF No. 35-6 at p. 102; ECF No. 35-4

at p. 50:3-14. Though Director Hathaway was inclined to believe

them, Manager Cornell did not think they were being truthful. ECF

No. 35-3, Cornell Dep. at pp. 52:7-53:14. Notwithstanding, Frizza

and O’Bryan were told that the alleged behavior was inappropriate

and must stop, if it were occurring. ECF No. 35-6 at p. 102; ECF

No. 35-3, Cornell Dep. at pp. 52:22-53:2. Director Hathaway and

Manager Cornell then met with Plaintiff to explain that her report

was investigated and that the reported behavior would not occur

moving forward. Id. In a follow-up, Director Hathaway spoke with

Patricia Smith, who denied that Farrell ever raised these concerns

to her previously. ECF No. 35-6 at p. 102. Following the October

2022 investigation, Farrell did not report any other comments

regarding her son’s illness or her FMLA use to Cornell. ECF No.

35-3, Cornell dep. at p. 54:8-12.

A few weeks later, on November 8, 2022, Plaintiff called Mon

Health’s Human Resources Services and Integration Director Thomas

Burwell to report that she believed Frizza accessed her email

account and reviewed correspondence regarding her son’s medical

care. ECF No. 35-1, Farrell Dep. at pp. 75:2-76:7. According to

Plaintiff, while she was away from her workstation to deliver

lunches, co-worker Kilee Riggleman observed Frizza go to Farrell’s

computer and look at her email account. Id. Riggleman immediately

found Plaintiff and reported that Frizza opened an email with

Farrell’s son’s name in it. Id.; ECF No. 35-5, Riggleman Dep. at

p. 22:15-20. Riggleman testified that the email contained FMLA

information. ECF No. 35-5, Riggleman Dep. at p. 20:17-22.

After speaking on the phone with Farrell regarding her report,

Burwell emailed Plaintiff on November 9, 2022, to seek additional

clarification. ECF No. 35-2 at p. 67. Specifically, Burwell asked

how she knew which email was accessed and how Frizza would have

been able to access her workstation. Id. On November 10, 2022,

Plaintiff responded that nothing was open on her workstation when

she returned to her desk and that she knew it was an email regarding

her son based upon Riggleman’s report. Id. Plaintiff further

wrote that she did not know if her computer had been locked when

she went to deliver the lunches or if Frizza knew her password.

Id.1

The same day, Manager Cornell, Director Hathaway, and members

of the Human Resources team met via Zoom to discuss the situation.

ECF No. 35-3, Cornell Dep. at pp. 57:10-58:4; ECF No. 37-13,

Burwell Dep. at pp. 80:23-81:2. They determined that Farrell

should be terminated for failing to lock her computer or log out

of access when she stepped away from her workstation. ECF No. 35-

3, Cornell Dep. at p. 58:16-21; ECF No. 37-13, Burwell Dep. at pp.

1 Approximately, 16 months later, Plaintiff testified that she

“absolutely [did] not” leave her computer station unlocked. ECF

No. 35-1, Farrell Dep. at p. 76:8-19.

65:12-66:1. Manager Cornell did not express disagreement with the

decision to end Farrell’s employment, but did believe the others

wanted to get Plaintiff out. ECF No. 35-3, Cornell Dep. at p.

59:1-24. Cornell testified that employees at the Wedgewood Clinic

would leave their computers unlocked all the time, but that she

would correct the behavior when she saw it. ECF No. 35-3, Cornell

Dep. at pp. 63:24-64:2.

The group formulated a plan for Smith and Cornell to terminate

Farrell at 4:00 p.m. on November 10, 2022. ECF No. 35-3, Cornell

Dep. at p. 66:6-20. However, Cornell did not follow the plan and

instead told Plaintiff that there would be a meeting with HR, in

which she would be let go. ECF No. 35-3, Cornell Dep. at pp.

66:22-67:10; ECF No. 35-1, Farrell Dep. at pp.82-83. Cornell

provided Farrell with a prepared termination letter. ECF No. 35-

3, Cornell Dep. at p. 68:18-19; ECF No. 35-1, Farrell Dep. at p.

85. The letter stated that Farrell’s employment was terminated

due to her “[f]ailure to Lock or Logout of access when stepping

away from workstation.” ECF No. 35-10 at p. 2. The letter further

referenced Farrell’s prior FWW, in which she was counseled to lock

her computer when not working at a workstation. Id. Farrell

signed and acknowledged receipt of the letter. Id.

On November 15, 2022, Farrell sent an email to Chief Human

Resources Officer Katie Davison and Vice President of Physician

Services Karen Friggens, requesting an appeal to her termination.

ECF No. 35-2 at pp. 68-71. In the appeal email, Farrell stated

that Frizza read an email in her account “that pertained to her

[Frizza] where I had reached out to compliance.” ECF No. 35-2 at

p. 68. She summarized Burwell’s investigative efforts, including

speaking with him on the phone on November 8, 2022, and being

instructed to determine if her email account was altered, and a

follow-up email with additional questioning regarding how Frizza

could have accessed her email on November 10, 2022. Id. The

appeal email also noted that Frizza was questioned regarding the

allegations on November 10, 2022. Id. However, Plaintiff felt

that the matter was not investigated, that her termination was

unwarranted, and that she was being targeted. Id.

Specifically, Farrell stated that she was terminated because

Director Hathaway wanted her fired and in “retaliation after [she]

had went to compliance over her.” Id. Farrell claimed that she

had reached out to Human Resources, Compliance, and Mon Health

management and leadership regarding Hathaway’s treatment and

provided a chronology of the alleged mistreatment. ECF No. 35-2

at pp. 68-69. Farrell claimed that Hathaway scolded or yelled at

her in front of co-workers on multiple occasions, that Hathaway

did not correct a doctor’s reported mistreatment of staff, that

Hathaway refused to address complaints about compensation, and

general belief that Hathaway wanted her terminated. ECF No. 35-2

at pp. 69-70. Addressing Farrell’s September 2022 write-up, she

denied accessing co-workers’ medical records and contended others

used her log-in information. Id. Plaintiff also included her

issues with Frizza. Id. None of the alleged mistreatment by

Director Hathaway involved Plaintiff’s use of FMLA or reporting a

HIPPA violation.

On November 29, 2022, Davison sent Plaintiff a formal letter

following a review of her appeal. ECF No. 35-2 at pp. 72-73. The

letter indicated that Davison first responded to Farrell’s email

on November 16, 2022, requesting a time for Plaintiff to speak

with her and Friggens. ECF No. 35-2 at p. 72. Davison stated

that Plaintiff did not reply and that she sent a follow-up email

on November 21, 2022, repeating her request to meet with Plaintiff.

Id. Davison informed Farrell that she would proceed with her

review of the appeal request based upon the information in

Farrell’s November 15, 2022, email if she did not hear from her.

Id. Farrell denies receiving the follow-up emails. ECF No. 35-1

at pp. 108-109.

According to Davison’s letter, she reviewed each allegation

in Farrell’s appeal and investigated her claims. ECF No. 35-2 at

p. 72. The appeal review confirmed that Director of HR Services

and Integration Burwell investigated the November 8, 2022, email

access complaint and that Burwell concluded that Plaintiff left

her computer unlocked. Id. Davison also reiterated that Farrell

was previously disciplined for not locking her computer and

received a final written warning that indicated a future violation

could result in termination. Id. Davison also reviewed an email

in which Farrell was provided a copy of her FWW. ECF No. 35-2 at

p. 73. Plaintiff also denies receiving a copy of the FWW. ECF

No. 35-1 at p. 111.

Davison ultimately denied Farrell’s appeal and supported the

termination decision because Plaintiff’s “repeated failure to lock

or log out of [her] computer when leaving [her] workstation.” ECF

No. 35-2 at p. 73. Davison reasoned that Farrell had been educated

on Mon Health’s procedure but still failed to follow the policy on

November 8, 2022. Id. Davison’s letter further stated that

Farrell’s termination was consistent with Mon Health’s prior

employment decisions for employees who engaged in similar conduct.

Id. Finally, Davison confirmed that every Compliance complaint

received from the Wedgewood Gateway Center in the prior year had

been investigated and resolved. Id. Plaintiff did not respond to

the appeal review letter. ECF No. 35-1 at p. 112.

Thereafter, the subject litigation commenced on July 7, 2023,

challenging the lawfulness of Farrell’s employment termination.

III. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18.

Summary judgment is proper “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-

moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The Court views the evidence in the light most

favorable to the non-moving party and draws any reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.

56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc).

IV. DISCUSSION

A. Plaintiff’s FMLA Discrimination and Retaliation Claim Fails

as a Matter of Law.

In Count One of her Complaint, Plaintiff alleges she was

discriminated against and retaliated for use of her Family Medical

Leave Act (“FMLA”) leave. ECF No. 1-1. “FMLA entitles eligible

employees to take ‘12 workweeks of leave’ during a 12-month period

for a qualifying ‘serious health condition that makes the employee

unable to perform the functions of’ [her] job.” Adkins v. CSX

Transp., Inc., 70 F.4th 785, 795 (4th Cir. 2023) (quoting 29 U.S.C.

§ 2612(A)(1)(D)). “Under 29 U.S.C. § 2615(a)(2), employers may

not retaliate against employees for exercising rights under the

FMLA.” Cumpston, 2018 WL 4855216, at *3 (Dotson v. Pfizer, Inc.,

558 F.3d 284, 295 (4th Cir. 2009)).

An FMLA plaintiff claiming retaliation must make a prima facie

case showing that (1) “[s]he engaged in protected activity”; (2)

“that the employer took adverse action against [her]”; and (3)

“that the adverse action was causally connected to the plaintiff's

protected activity.” Vannoy v. Fed. Rsrv. Bank of Richmond, 827

F.3d 296, 304 (4th Cir. 2016) (quoting Yashenko v. Harrah's NC

Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006)). Additionally,

to allege a prima facie case of FMLA interference is

straightforward. A plaintiff must show “(1) that [she] is entitled

to an FMLA benefit; (2) that [her] employer interfered with the

provision of that benefit; and (3) that the interference caused

[her] harm.” Adkins, 10 F.4th at 796.

Under the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the burden then shifts to the

defendant to provide “a legitimate, nonretaliatory reason for

taking the employment action at issue.” Hannah P. v. Coats, 916

F.3d 327, 347 (4th Cir. 2019). “The FMLA does not prevent an

employer from terminating an employee for poor performance,

misconduct, or insubordinate behavior.” Vannoy, 827 F.3d at 304-

05 (finding the employee’s misconduct, failure to communicate

regarding absences, and failure to complete a portion of his

performance improvement plan qualified as legitimate, non-

discriminatory reasons for terminating plaintiff). The Court need

not decide whether an employer discharging an employee was “wise,

fair, or correct” and does not “sit as a kind of super-personnel

department weighing the prudence of employment decisions made by

firms charged with employment discrimination.” Feldman v. L. Enf't

Assocs. Corp., 752 F.3d 339, 350 (4th Cir. 2014).

“Once the plaintiff proffers evidence establishing [her]

prima facie case, and the employer offers a non-retaliatory reason

of the adverse action, the plaintiff ‘bears the burden of

establishing that the employer's proffered explanation is pretext

for FMLA retaliation.’” Vannoy, 827 F.3d at 304. “To do so, [the

plaintiff] must offer evidence that tends to show that the

defendant[‘s] explanation is not credible, or that retaliation is

the most likely explanation.” Cumpston, 2018 WL 4855216, at *4

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

147 (2000)). “[A] plaintiff's own assertions of discrimination in

and of themselves are insufficient to counter substantial evidence

of legitimate non-discriminatory reasons for a discharge.”

Dockins v. Benchmark Commc'ns, 176 F.3d 745, 749 (4th Cir. 1999).

“Accordingly, to survive summary judgment on an FMLA retaliation

claim, ‘the plaintiff must produce sufficient evidence to create

a genuine dispute of material fact such that a reasonable

factfinder could conclude the adverse employment action was taken

for an impermissible reason, i.e., retaliation.’” Waag v. Sotera

Def. Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (Sharif v.

United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016)).

Defendant contends that Plaintiff cannot establish a prima

facie claim for FMLA interference or retaliation. ECF No. 36 at

pp. 14-16. As for the interference claim, Mon Health asserts that

Plaintiff was never denied FMLA leave, that Mon Health approved

Plaintiff’s request to extend her FMLA leave, and that its

supervisors provided Farrell with documentation to report her

leave to New York Life. In fact, even though Plaintiff failed to

report her FMLA use to the third-party administrator, Mon Health

did not discipline her.

As for the retaliation claim, Defendant argues that Plaintiff

has no evidence to support that her termination was causally

connected to the exercise of her FMLA rights. ECF No. 36 at p.

17. Rather, Mon Health contends that Plaintiff was terminated for

repeatedly violating Mon Health’s Confidentiality, HIPAA, and Non-

Disclosure policies even after receiving a FWW for the same

misconduct. Defendant asserts that Farrell’s October 2022

compliance complaint regarding comments allegedly made by Frizza

and O’Bryan about her use of FMLA does not create a causal

connection to support the FMLA retaliation claim.

In contrast, Plaintiff contends the record supports that Mon

Health supervisors held animus toward Plaintiff for her use of

FMLA and retaliated against her. ECF No. 37 at p. 14.

Specifically, Director Hathaway only started mistreating Plaintiff

after she began using substantial FMLA leave. Further, Farrell

argues that Mon Health did not meaningfully investigate,

discipline, or deter Frizza and O’Bryan from harassing Plaintiff

for taking leave to care for her son. Additionally, Plaintiff

claims her schedule change was retaliatory. Plaintiff relies upon

the temporal proximity between Plaintiff’s termination and the use

of her intermittent leave to further support the causal link. Id.

Plaintiff further contends that she satisfied her burden

under the McDonnell-Douglas framework. Id. at p. 15.

Specifically, she argues that Defendant has not shown a legitimate,

non-discriminatory reason for Plaintiff’s termination. In the

alternative, Plaintiff argues that Mon Health’s purported reason

for Farrell’s termination — i.e., her multiple privacy policy

violations — is pretextual for two reasons. First, Plaintiff

argues the proffered reason is pretextual because Farrell received

a harsher punishment than Frizza for related misconduct.2 Id. at

2 Plaintiff incorrectly states that Frizza had not utilized FMLA

leave.

p. 17. Second, Plaintiff contends that Mon Health engaged in a

pattern of taking adverse employment actions against employees who

utilize FMLA leave. Id. at p. 19. Plaintiff relies upon the near

in time terminations of Kilee Riggleman and Marcy Cornell, who

also previously took FMLA during their term of employment.

Here, the Court agrees that Plaintiff’s claim for FMLA

discrimination and retaliation fails. The Court assumes without

deciding that Plaintiff made a prima facie case of retaliation.

Nonetheless, Plaintiff’s claim fails because Mon Health provided

evidence of a legitimate, nonretaliatory reason for taking the

employment action and Plaintiff failed to proffer any legitimate

evidence that Defendant’s reason was mere pretext.

1. Defendant established a legitimate non-retaliatory reason

for terminating Plaintiff.

Under the McDonnell-Douglas burden shifting framework,

Defendant provided sufficient evidence to support that Plaintiff

was discharged lawfully. The record shows that Plaintiff was

terminated after she violated Mon Health’s HIPAA Privacy Policy

for a second time. Farrell received prior counseling through her

FWW to lock her computer when stepping away from her workstation

and to not share her password with others. Despite this formal

warning, Plaintiff’s workstation was able to be accessed by others

on November 8, 2022.

During Mon Health’s investigation into Farrell’s compliance

complaint regarding Frizza’s alleged access of her account,

Farrell stated in writing that she did not know if she had locked

her computer before leaving her workstation to deliver lunch or if

Frizza had known her password. ECF No. 35-2 at p. 67. Sixteen

months later, in the height of litigation, Plaintiff testified

that she absolutely did not leave her computer unlocked. ECF No.

35-1, Farrell Dep. at p. 76:8-19. Despite Plaintiff’s counsel’s

contentions to the contrary, Plaintiff’s contradicting testimony

and efforts to retract her prior statement do not negate the

evidentiary value of the email communication to create a dispute

of fact. Plaintiff does not offer any evidence, beyond her self-

serving testimony, to dispute that she left her computer unlocked.3

Further, to the extent that Plaintiff speculated that another co-

worker knew her password, such a fact would not help Plaintiff’s

case because Mon Health does not store employee passwords and thus,

only Plaintiff could be responsible for its dissemination — again

violating Mon Health’s policies.

Mon Health terminated Plaintiff’s employment after repeated

misconduct for which she had previously been disciplined. Farrell

3 “[U]ncorroborated, self-serving testimony of a plaintiff is not

sufficient to create a material dispute of fact sufficient to

defeat summary judgment.” Prather v. Doe Officers, 2022 WL 4391510,

at *4 (N.D.W. Va. Sept. 22, 2022) (quoting Diquollo v. Prosperity

Mortg. Corp., 984 F.Supp.2d 563, 570 (E.D. Va. 2013)).

was warned that future failure to secure her workstation could

result in termination and, at minimum, Plaintiff could not

affirmatively state that she locked her computer when Mon Health

investigated her compliance complaint. Furthermore, Mon Health’s

motive for terminating Plaintiff can only be based upon the

information known to Mon Health at the time of termination. In

November 2022, Farrell told Burwell – the Mon Health employee

tasked with investigating her compliance complaint - that she did

not know if her computer was locked when Frizza allegedly accessed

Plaintiff’s email. To the extent that Cornell testified that

Farrell told her on November 8, 2022, that she locked her computer,

Cornell did not share this information with leadership when taking

part in the termination discussions. See ECF No. 37-5 at pp. 61-

62. Cornell further testified that she did not have any way of

personally knowing whether Farrell’s computer was locked, because

she was not present when Farrell stepped away from her work area.

Id. This is not a substantial dispute of material fact.

2. Plaintiff failed to establish Defendant’s proffered reason

is merely pretextual.

Furthermore, Plaintiff failed to show that Defendant’s

proffered reason for her termination was pretextual. Plaintiff

asserts that Mon Health’s reason for terminating Plaintiff was

merely pretext for FMLA discrimination because Frizza was not

terminated for similar misconduct. This argument fails. As Mon

Health provided in its reply brief, Frizza also utilized FMLA

leave; thus, Frizza was not treated more favorably than Farrell

but for her FMLA use. ECF No. 38 at pp. 1, 5-6, ECF No. 35-7, ECF

No. 38-1. Furthermore, the other alleged comparators that utilized

FMLA are not similarly situated to Plaintiff because they did not

engage in the same conduct. The temporal proximity arguments are

similarly insufficient because Farrell’s discharge occurred just

hours after she answered Burwell’s investigation questions and

informed Mon Health that she did not know if her computer had been

locked on November 8, 2022. Though Plaintiff utilized her

intermittent leave on November 9, 2025, this fact alone, when

considering the extent of Farrell’s intermittent leave use, does

not break the chain of causation or show that Defendant’s

explanation is not credible. Accordingly, Plaintiff’s claim for

FMLA retaliation or discrimination fails as a matter of law and

Defendant’s Motion for Summary Judgement is GRANTED as to Count

One.

B. Plaintiff’s HIPAA Harless Claim Fails as a Matter of Law.

Plaintiff alleges she was retaliated against for reporting a

Health Insurance Portability and Accountability Act (“HIPAA”)

violation, in violation of a substantial public policy of West

Virginia. ECF No. 1-1.

The rule that an employer has an absolute

right to discharge an at will employee must be

tempered by the principle that where the

employer’s motivation for the discharge is to

contravene some substantial public policy

principle, then the employer may be liable to

the employee for damages occasioned by this

discharge.

Syl., Harless v. First Nat’l Bank of Fairmont, 246 S.E.2d 270

(W. Va. 1978). To succeed on a Harless retaliatory discharge, a

plaintiff must prove: (1) “[t]hat a clear public policy existed

and was manifested in a state or federal constitution, statute or

administrative regulation, or in the common law”; (2) “[t]hat

dismissing employees under circumstances like those involved in

the plaintiff’s dismissal would jeopardize the public policy”; (3)

“[t]he plaintiff’s dismissal was motivated by conduct related to

the public policy”; and (4) “[t]he employer lacked overriding

legitimate business justification for the dismissal.” Burke v.

Wetzel Cnty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018). “The

determination whether a substantial public policy exists is a

question of law for the court.” Frohnapfel v. ArcelorMittal

Weirton LLC, 100 F. Supp. 3d 556, 562–63 (N.D.W. Va. 2015)

When an employee makes a prima facie case of

discrimination, the burden then shifts to the

employer to prove a legitimate, nonpretextual,

and nonretaliatory reason for the discharge.

In rebuttal, the employee can then offer

evidence that the employer’s proffered reason

for the discharge is merely a pretext for the

discriminatory act.

Syl. Pt. 4, Birthisel v. Tri-Cities Health Servs. Corp., 424 S.E.2d

606 (W. Va. 1992) (internal citation omitted).

Upon a thorough review of West Virginia state and federal

case law, this Court has not found an instance in which HIPAA has

been specifically acknowledged as a source of public policy to

support a Harless claim.4 However, Defendant does not challenge

that HIPAA could be the public policy for a Harless claim,

recognizing that federal statutory law can embody public policy

for a Harless claim and that West Virginia has an interest in

preventing the unauthorized disclosure of confidential medical

records. ECF No. 36 (citing Collins v. Lowe's Home Centers, LLC,

2017 WL 6061980 (S.D.W. Va. Dec. 7, 2017); Bartos v. PDC Energy,

Inc., 275 F. Supp. 3d 755 (N.D.W. Va. 2017); and State ex rel.

State Farm Mut. Auto. Ins. Co. v. Bedell, 228 W. Va. 252 (2011)).

Accordingly, the Court assumes without deciding that HIPAA

qualifies as a substantial public policy to satisfy the first

element of a Harless wrongful discharge claim.

Defendant contends that Plaintiff’s HIPAA Harless claim fails

because Plaintiff did not report a HIPAA violation, and that

Plaintiff did not articulate how her termination violated West

4 In Constellium Rolled Prods. Ravenswood, LLC v. Rogers, the

plaintiff brought a common law claim for retaliation in violation

of the substantial public policy found in HIPAA. However, the

Southern District of West Virginia court did not reach the merits

of the claim because the plaintiff voluntarily dismissed the

Harless claim with the consent of Defendants. 2017 WL 1552325, at

*4 (S.D.W. Va. Apr. 28, 2017).

Virginia’s substantial interest in protecting confidential medical

records. ECF No. 36 at pp. 23-24. During the Court’s motion

hearing, Defendant argued that HIPAA only protects actual medical

records and that the email allegedly accessed by Frizza was just

an email with Plaintiff’s son’s name, not protected health

information. Defendant also contends that terminating Plaintiff

for failing to lock her workstation and violating Mon Health’s

Confidentiality, HIPAA, and Non-Disclosure policies better

supports West Virginia public policy. Id. at p. 24. Furthermore,

it contends that Farrell cannot refute Mon Health’s legitimate,

non-discriminatory reason for her termination. ECF No. 38 at p. 2.

In contrast, Plaintiff argues that her November 2022

compliance report regarding Frizza accessing her email qualifies

as a HIPAA violation report because Frizza viewed an email relating

to Plaintiff’s son’s medical care. ECF No. 37 at p. 23; see ECF

No. 1-1, Compl. at ¶ 22. Further, Farrell claims that she reported

a HIPAA violation when someone viewed Frizza’s medical records

while logged into her account in September 2022. Id. Finally,

Plaintiff argues that there is no legitimate non-discriminatory

reason for her discharge.

First, Plaintiff’s efforts to transform the circumstances

leading to her FWW into a HIPAA violation are unpersuasive. Mon

Health completed an audit of her medical chart access, which

reflected inappropriate access to Plaintiff’s co-workers’ medical

records. Plaintiff’s denial and contention that someone else used

her account to look at Frizza’s PHI does not constitute a HIPAA

violation report. Farrell did not make a report; she was

questioned by Mon Health as part of its own investigation into

concerns that Plaintiff knew her co-workers’ PHI and had violated

Mon Health’s privacy policies. This argument does not support the

Harless claim.

Second, the Court looks to whether Plaintiff’s compliance

complaint regarding Frizza’s access of her email account qualifies

as a HIPAA violation report. Plaintiff argues without any

substantial support that the email qualifies as PHI because it

relates to her son’s medical care. ECF No. 37 at p. 23. However,

the specific email that was allegedly accessed is not in the record

before the Court. Rather, Plaintiff relies upon Kilee Riggleman’s

report that Frizza viewed an email with her son’s name in it.

Riggleman testified that the email Frizza viewed in Farrell’s

account included Plaintiff’s son’s name and looked like FMLA

paperwork. ECF No. 37-10, Riggleman Dep. at p. 20:17-22. Though

the Court is skeptical as to whether the compliance report for the

email access qualifies as a HIPAA violation report, the Court need

not decide this question because Plaintiff cannot satisfy the third

and fourth elements of her claim.

Plaintiff was not terminated for reporting a HIPAA violation.

Just as Plaintiff failed to show that Defendant’s proffered reason

for terminating her was mere pretext for FMLA discrimination,

Plaintiff similarly fails to show that Mon Health lacked an

overriding legitimate business justification for the dismissal.

As elaborated upon above, the record clearly establishes that

Plaintiff did not appropriately secure her computer access — either

by sharing her password or leaving her workstation unlocked.

Despite being trained, and later counseled, on Mon Health’s

compliance, non-disclosure, and HIPAA policies, Plaintiff left her

workstation unsecure. Thus, Plaintiff’s termination was justified

and furthered Defendant’s interest in maintaining patient privacy

and medical record confidentiality. Accordingly, Defendant’s

Motion for Summary Judgment is GRANTED as to Count Two.

C. Plaintiff’s FMLA Harless Claim Fails as a Matter of Law.

As elaborated upon above, a Harless claim allows a plaintiff

to bring a cause of action for an employment termination which

violates a substantial public policy. Plaintiff contends that she

was wrongly terminated based upon her use of FMLA leave. “[T]he

FMLA prohibits employers from discrimination associated with leave

under the FMLA and prohibits employers from interfering with,

restraining or denying any rights provided under the FMLA.” Burke

v. Wetzel Cnty. Comm'n, 815 S.E.2d 520, 539 (2018).

The Supreme Court of Appeals for West Virginia and West

Virginia federal courts recognize that the FMLA can serve as a

source of public policy for a Harless wrongful discharge claim.

Id.; Vandevander v. Verizon Wireless, LLC, 149 F. Supp. 3d 724,

731 (S.D.W. Va. 2016) (finding the FMLA provides a substantial

public policy sufficient to support a West Virginia common law

claim for retaliatory discharge in violation of public policy);

Collins v. Lowe's Home Centers, LLC, 2017 WL 6061980 (S.D.W. Va.

Dec. 7, 2017)(finding that the FMLA provides the substantial public

policy upon which a plaintiff may state a Harless claim); Bartos

v. PDC Energy, Inc., 275 F. Supp. 3d 755, 767 (N.D.W. Va. 2017)

(finding that the FMLA provided the plaintiff with the substantial

public policy that allowed her Harless claim to survive summary

judgment); Beegle v. Wexford Health Sources, Inc., 2023 WL 3485276,

at *3 (S.D.W. Va. May 16, 2023).

Defendant incorporates its prior arguments and argues that

Plaintiff’s FMLA Harless claim fails because Plaintiff failed to

produce sufficient evidence to support the third and fourth Harless

elements regarding causation and overriding justification. ECF

No. 36 at pp. 24-25. Plaintiff argues that the third and fourth

factors mirror the analysis of her FMLA discrimination claim. ECF

No. 37 at p. 37 at p. 22. Thus, Plaintiff reiterates that her

termination was motivated by her FMLA use. Id. Plaintiff again

argues that employees who did not utilize FMLA were treated more

favorably, and Mon Health has a practice of terminating employees

who use FMLA. Id. Additionally, Plaintiff argues that Defendant

lacked a legitimate business justification for Farrell’s

termination because her alleged confidentiality and privacy

violations were pretextual and not based in evidence. Id. The

Court already addressed and discredited these arguments and

incorporates herein its previous discussions regarding Plaintiff’s

failure to establish pretext and the Court’s acceptance of Mon

Health’s lawful reason for discharging Farrell. Accordingly, for

the reasons already set forth above regarding Plaintiff’s FMLA

discrimination claim and HIPAA Harless claim, Defendant’s Motion

for Summary Judgment is GRANTED as to Count Three.

Vv. CONCLUSION

For the reasons stated herein, Defendant Mon Health’s Motion

for Summary Judgment [ECF No. 35] is GRANTED. Plaintiff’s Complaint

[ECF No. 1-1] is DISMISSED WITH PREJUDICE. All other pending

motions, deadlines, and hearings are hereby TERMINATED. This

action is thus STRICKEN from the Court’s active docket and the

Clerk is DIRECTED to enter judgment in favor of Mon Health Care,

Inc.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record by the CM/ECF system.

DATED: September 25, 2025

Tom 8 Klas

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

31