# Farrell v. Mon Health Care, Inc.

> District Court, N.D. West Virginia · September 25, 2025

URL: https://www.frixlaw.com/law-library/cases/11144511

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 25, 2025
- **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/11144511

## How later opinions describe it (automated extraction)

- finding that the FMLA provided the plaintiff with the substantial public policy that allowed her Harless claim to survive summary judgment
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11144511. Public record. Not legal advice.