Fairmont Tool, Inc. v. Norvel Louis Opyoke

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term FILED

_______________

June 9, 2022

No. 20-1042 released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

_______________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

FAIRMONT TOOL, INC.,

Defendant Below, Petitioner,

v.

NORVEL LOUIS OPYOKE,

Plaintiff Below, Respondent.

________________________________________________________

Appeal from the Circuit Court of Marion County

The Honorable Patrick N. Wilson

Civil Action No. 15-C-252

REVERSED

________________________________________________________

Submitted: January 25, 2022

Filed: June 9, 2022

J. Robert Russell, Esq. Karl Kolenich, Esq.

David L. T. Butler, Esq. Klie Law Offices, PLLC

Shuman McCuskey Slicer PLLC Buckhannon, West Virginia

Morgantown, West Virginia Counsel for Respondent

Counsel for Petitioner

CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.

JUSTICE BUNN did not participate in the decision in this case.

SYLLABUS BY THE COURT

1. “The appellate standard of review for an order granting or denying a

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the

West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. Tyler,

224 W. Va. 1, 680 S.E.2d 16 (2009).

2. To prevail on a claim that an employer unlawfully interfered with an

employee’s rights under The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et

seq., the employee must prove that (1) he or she was eligible for FMLA benefits, (2) the

employer was covered by the FMLA, (3) the employee was entitled to leave under the

FMLA, (4) he or she provided notice of the intention to take leave, and (5) the employer

denied the employee FMLA benefits to which he or she was entitled. The employee must

also prove that he or she was prejudiced by the employer’s violation of the statute.

i

HUTCHISON, Chief Justice:

Following a diagnosis of cancer in April of 2015, Respondent Norvel Louis Opyoke 1

requested information from his employer, Fairmont Tool, Inc., about his right to take leave

under The Family and Medical Leave Act of 1993 (“FMLA”). For approximately four

2

months, Fairmont Tool failed to advise respondent of his FMLA rights, in violation of 29

U.S.C. § 2615(a)(1). Respondent sued Fairmont Tool in the Circuit Court of Marion

3

County asserting various claims, including that Fairmont Tool interfered with, restrained,

or denied the exercise of or the attempt to exercise, his rights under the FMLA, for which

4

a jury awarded monetary damages. In this appeal from that verdict, Fairmont Tool

contends that respondent failed to present any evidence that he was prejudiced by the

company’s technical violation of the FMLA and that, therefore, the circuit court erred in

On January 26, 2021, Tyler Opyoke, Administrator of the Personal Estate of

1

Norvel Louis Opyoke, filed his Notice of Suggestion of Death advising that Norvel Louis

Opyoke died on December 22, 2020. See W. Va. R. Civ. P. 25. For ease of reference,

however, we refer to Norvel Louis Opyoke as “respondent” in this opinion.

See 29 U.S.C. § 2601, et seq.

2

3

29 U.S.C. § 2615(a)(1) provides that “[i]t shall be unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided

under this subchapter.”

The FMLA “creates a private right of action to seek both equitable relief and

4

money damages ‘against any employer (including a public agency) in any Federal or State

court of competent jurisdiction,’ § 2617(a)(2), should that employer ‘interfere with,

restrain, or deny the exercise of’ FMLA rights, § 2615(a)(1).” Nevada Dept. of Human Res.

v. Hibbs, 538 U.S. 721, 724 (2003).

1

failing to grant Fairmont Tool’s post-trial motion for judgment as a matter of law under

Rule 50(b) of the West Virginia Rules of Civil Procedure.

Upon our thorough review of the briefs, record, oral argument, and the

pertinent legal authorities, and for the reasons set forth below, we agree with Fairmont Tool

and reverse the jury’s verdict.

I. Facts and Procedural History

In October of 2015, Respondent filed a complaint against Fairmont Tool

alleging various claims relating to his former employment and subsequent layoff from the

company. Respondent’s claims of discriminatory discharge in violation of the FMLA

(“FMLA retaliation”) , common law retaliatory discharge, failure to notify of FMLA rights

5

(“FMLA interference”), and the tort of outrage were presented at a jury trial in July of

2017. Respondent also sought punitive damages.

6

Respondent alleged that Fairmont Tool terminated his employment in retaliation

5

for requesting leave under the FMLA. An FMLA retaliation claim alleges “violations of

the[] proscriptive rights aris[ing] under 29 U.S.C.A. § 2615(a)(2), which states that ‘[i]t

shall be unlawful for any employer to discharge or in any other manner discriminate against

any individual for opposing any practice made unlawful by this subchapter.’” Yashenko v.

Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006). As discussed infra, the

circuit court granted judgment as a matter of law in favor of Fairmont Tool on this claim,

as well as on respondent’s common law wrongful discharge claim.

Respondent voluntarily dismissed his claims of religious discrimination and hostile

6

work environment prior to trial.

2

The evidence at trial established that respondent was employed by Fairmont

Tool, an oilfield service provider, from 2010 until July 20, 2015. He was hired and worked

as a machinist until sometime in 2014 when, following a diagnosis of cancer in 2012 and

time off for treatment that included the removal of one of his kidneys, he was moved to

7

the less rigorous position of dimensional inspector. Then, in April of 2015, respondent was

diagnosed with bladder and urethral cancer, which required high-dose chemotherapy

treatment. Respondent was advised that he had a six-month window in which to begin

treatment. Respondent testified that his physicians wanted to begin treatment “[a]s soon as

possible. As soon as I got the leave okayed[,] [respondent’s physician] wanted to start then.

He knew I wouldn’t be able to work while undergoing the treatment.”

Respondent testified that immediately upon receiving his diagnosis, he

“started requesting my FMLA paperwork” from several people at Fairmont Tool, including

his immediate supervisor, Patrick Stevens. Respondent testified that when he told Mr.

Stevens that he was going to need time off from work, Mr. Stevens said “he understood

but that as far as the FMLA goes, he was told [Fairmont Tool] didn’t offer that by one of

Respondent had a previous bout with cancer when he was twenty-one years old,

7

approximately twenty years before he began his employment at Fairmont Tool. The

president of Fairmont Tool, Nathan Kincaid, testified that he was aware that respondent

previously had cancer before he was hired to work there. Respondent testified that

following his diagnosis in 2012, he “didn’t know about the FMLA possibility when I had

my kidney removed and I was off for three months, and beyond that, I was never off more

than one day a week. There may have been a two day week, but we tried to schedule all

my appointments and tests so that if there were any problems I would just either miss a

Wednesday or a Friday.” Mr. Kincaid testified that “we had no problem with” the time off

that respondent took during his previous illness.

3

the office people. . . . [H]e had no idea what FMLA was.” Nonetheless, for an

approximately three-month period beginning in April, respondent continued to ask Mr.

Stevens about FMLA “[a] lot. I mean, it was – I would go to Pat at least every week. Pat,

I’m going to need the papers. Pat, can you find something out about the FMLA?” In

contrast, Mr. Stevens testified that, although he was aware of respondent’s cancer diagnosis

and need for treatment, respondent never asked him about taking time off under FMLA

and that, if respondent had asked, he would have advised him to speak with Jamie Kelley

who, as Fairmont Tool’s human resources manager, is in charge of FMLA.

Respondent further testified that, after he was diagnosed, he also spoke with

the company’s office manager, Tammy Hendricks, who he contends told him that “FMLA

8

wasn’t offered at Fairmont Tool.” Ms. Hendricks denied ever speaking with respondent

9

about FMLA or ever telling him that Fairmont Tool does not offer FMLA.

On July 4, 2015, respondent experienced an emergency medical episode

related to the cancer that required surgery and that he be absent from work the following

week. On July 13, 2015, respondent provided Ms. Kelley with a “Return to Work” slip on

which he wrote that he needed a “copy of [FMLA] papers” and that he would begin

Respondent testified that he was “sent to talk to Tammy[,]” but did not indicate by

8

whom he was sent.

Respondent also testified that he requested FMLA information from Brian Lamb,

9

who “helped write the Employee Handbook, which stated FMLA was an option . . . but

[he] didn’t know who to direct me to.” Mr. Lamb did not testify at trial.

4

chemotherapy treatment on July 15th. Ms. Kelley testified that she was previously unaware

of respondent’s cancer diagnosis and could not explain why respondent did not request

FMLA information from her when his supervisors had failed to provide it early on as he

claimed. According to Ms. Kelley, she advised respondent that he was eligible for FMLA

leave and requested that he provide “medical documentation to let me know what time he

would need off, how long he would need off, if it was going to be a three month block of

time or if it was going to be one day off every week for the next six months.” In contrast

with Ms. Kelley’s testimony, respondent testified that Ms. Kelley did not ask him for any

additional information about his medical condition and treatment.

On July 16, 17, and 20, 2015, just after respondent requested FMLA leave

following his emergency surgery, Fairmont Tool laid off forty-one of its then-109

employees. Nathan Kincaid, Fairmont Tool’s president, testified that the decision to lay off

employees was precipitated by a lack of work at the company that was due to a downturn

in the oil and gas industry. Among the employees who were laid off were two of the

company’s three inspectors. Respondent, who had the least experience of the three

inspectors, was included in the layoffs. Mr. Kincaid testified that he did not know about

respondent’s intention to take FMLA leave and that respondent’s intention to take FMLA

leave was not a factor in the company’s decision to include respondent in the layoffs.

Similarly, Ms. Kelley testified that she did not discuss the fact that respondent requested

FMLA leave on July 13th with Mr. Kincaid or any of the supervisors involved with the

layoff decisions.

5

Respondent testified that, in April, he wanted to begin treatment “as soon as

possible” but that the FMLA leave “was being put off.” When asked how he felt about the

delay in treatment, respondent testified,

It was my life on the line. When you’re dealing with

cancer, every minute counts, every one, and to say no we’re

not going to deal with – the staff at Fairmont Tool is so

undertrained. I mean, to – would it have affected the outcome

of my cancer, we’ll never know, but we do know what

happened.

Respondent further testified that, after he was laid off on July 20th, he was “feeling good

enough to work” until August 16th, when he began chemotherapy treatment. 10 Up until that

time, he was “able to draw unemployment. I used the[] two weeks of unemployment to pay

for two months of Cobra Insurance so I was able to get two months of treatment.” After

that, “I couldn’t get any treatments. I had no insurance. So things weren’t started up again

until the 1st – some time after the first of the year I was able to get a medical card.”

Respondent testified that he had been referred to a specialist in Arizona but, when he

lost the insurance and had to get Medicaid, [the specialist] was

totally out of the question then. It was a death sentence. It’s

hard to put into words to know that I had a medical team

blessing – they were trying, but just due to lack of unproperly

trained staff at Fairmont Tool, I lost my options. Maybe one

day they’ll get me healed enough to return to work to where if

it reoccurs I can go see this man, but as far as that point in time,

all of our plans fell through. It’s like having the rug pulled out

from under you.

Although treatment was originally planned to begin on July 15, 2015, respondent

10

was diagnosed with an infection that ultimately delayed treatment until August 16th.

6

In connection with his claim that he was wrongfully discharged, petitioner

testified that he sustained economic damages consisting of (1) lost wages for the period of

July 20, 2015 (the date he was laid off), until August 16, 2015 (the date he was no longer

physically able to work), which amounted to $3,520.00, and (2) lost benefits equaling the

portion of respondent’s insurance paid by Fairmont Tool for a three-month period, which

11

amounted to $881.22.

12

At the close of respondent’s case-in-chief, Fairmont Tool moved for

judgment as a matter of law on all claims. See W. Va. R. Civ. P. 50(a). The circuit court

granted Fairmont Tool’s motion as to respondent’s claims for common law retaliatory

discharge and FMLA retaliation, concluding that respondent failed to prove that either Mr.

Kincaid or any of the supervisors involved in the layoff decisions knew that respondent

had requested FMLA leave when the decision to layoff respondent was made. Respondent

does not appeal this ruling.

In connection with its motion for judgment as a matter of law on the FMLA

interference claim, Fairmont Tool argued that respondent failed to present any evidence of

11

See 29 U.S.C. § 2614(c)(1) (requiring employer to maintain health coverage for

the duration of the twelve weeks of unpaid leave to which eligible employee is entitled

under FMLA).

Fairmont Tool objected to the exhibit accompanying this testimony to the extent

12

it (1) denoted the date respondent was “terminated” rather than “laid off” and (2) indicated

that the total amount of lost wages did not include an estimate for overtime earned. The

exhibit was admitted with redactions reflecting Fairmont Tool’s objections.

7

harm resulting from the company’s failure to notify respondent of his FMLA rights from

April to July. Fairmont Tool argued that, “even if there is a technical violation [of the

FMLA], the plaintiff must show that he was harmed in some [way].” Respondent countered

that

[a]s far as a harm, . . . it was his and his medical provider’s

intention to start treatment right away. That was what was

needed to be done. That he needed to start right away, that he

testified that the emotional issue that that caused not being able

to start, not being able to get anybody to cooperate, and not

being able to take those cancer treatments for months while he

tried to work this out and people told him that they don’t do

FMLA or just hold on and blew him off.

Fairmont Tool replied that “an[] employer does not dictate [an employee’s]

treatment schedule” and that Fairmont Tool did not prevent him from seeking medical

treatment. As for the tort of outrage claim, Fairmont Tool argued that respondent failed to

satisfy the elements of such a claim.

The circuit court denied Fairmont Tool’s motion for judgment as a matter of

law as to respondent’s claims for FMLA interference and the tort of outrage, explaining

that the FMLA interference claim,

if that Count’s allowed to remain[,] certainly a jury could

determine that what was done regarding actions by the

employer in this matter might be so outrageous to warrant

damages. We’ve got [respondent] indicating certainly that he

told people – multiple people and made people aware in the

company that he may in fact need to exercise, you know,

FMLA rights. He has testified as to what responses he got. I

think those are questions of fact that the jury will have to

determine regarding Count III [FMLA interference], and also

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as I said, the tort of outrage would stand alone in terms of the

actions of the employer to be considered by the jury.

Following Fairmont Tool’s presentation of its case, it renewed its motion for

judgment as a matter of law as to the FMLA interference and tort of outrage claims. 13 The

circuit court denied the motion. Fairmont Tool objected to the tort of outrage claim and the

issue of punitive damages going to the jury on the ground that the FMLA does not provide

for the recovery of either emotional or punitive damages for alleged FMLA interference

claims. The circuit court overruled Fairmont Tool’s objections, indicating that the tort of

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outrage “is a legitimate cause of action. And a reasonable jury can consider and could make

a determination that the acts of the employer were . . . so outrageous, et cetera, that it would

warrant compensatory and punitive damages.”

The jury returned a verdict in favor of respondent on the FMLA interference

claim, awarding a total amount of $4,401.22 ($3,520 in lost wages plus $881.22 in lost

Respondent did not put on rebuttal evidence.

13

See e.g., Rodgers v. City of Des Moines, 435 F.3d 904, 909 (8th Cir. 2006)

14

(concluding that “emotional distress damages are not available under the FMLA” because

the statute and its accompanying regulations do not expressly provide for them);

Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1007 (6th Cir. 2005) (“[T]he

FMLA does not permit recovery for emotional distress”); Beebe v. Williams College, 430

F.Supp.2d 18, 22 (D.Mass. 2006) (“Nowhere . . . does the FMLA mention damages for

emotional distress”).

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benefits). 15 On the tort of outrage claim, the jury awarded respondent $50,000 for emotional

distress, $75,000 for annoyance, and $50,000 for inconvenience, for a total award of

$175,0000. The jury also awarded respondent punitive damages in the amount of $150,000.

Thereafter, Fairmont Tool filed a plethora of post-trial motions that resulted

in the entry of multiple orders and various amended orders, the majority of which need not

be recounted for purposes of this appeal. Among them was the circuit court’s June 13,

2018, order that clarified a prior ruling that the issue of punitive damages should not have

With respect to respondent’s FMLA interference claim, the jury was instructed

15

that

[t]he measure of damages for the plaintiff is either lost

wages and benefits or other expenses incurred because of

Fairmont Tool’s FMLA violation. The plaintiff can recover lost

wages and benefits, or he can recover other expenses incurred

because of Fairmont Tool’s actions, but not both. If the

plaintiff proved that he lost wages or benefits because of

Fairmont Tool’s FMLA violation, then the plaintiff may

recover net lost wages and benefits from the date of the

interference to the date of your verdict. If you find that the

plaintiff did not directly lose pay or benefits because of

Fairmont Tool’s violation, then you may award the plaintiff the

actual monetary loss that directly resulted from Fairmont

Tool’s violation. This amount of damages cannot exceed 12

weeks of the plaintiff’s wages or salary.

(Emphasis added).

It is undisputed that the only evidence of economic damages presented was in

connection with respondent’s FMLA retaliation claim, which the circuit court dismissed

following the presentation of respondent’s case-in-chief.

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been submitted to the jury based upon the evidence presented by respondent and that the

punitive damages award was “duplicative of the damages awarded with regard to the tort

of outrage, and was therefore, improper double recovery.” Also in that order, the circuit

court set aside the jury award on the tort of outrage claim because it was based upon a jury

instruction that repeatedly referenced respondent’s “wrongful termination” and

“discharge” and instructed that respondent may recover “if the manner in which he was

discharged was extreme and outrageous.” Because the “the jury’s finding for [respondent]

on the tort of [o]utrage was based on findings regarding wrongful termination, a claim

which was dismissed by the [c]ourt[,]” the circuit court found that the instruction was

erroneous and clearly prejudiced Fairmont Tool. Accordingly, the circuit court granted

Fairmont Tool’s motion for a new trial on the tort of outrage claim. Ultimately, respondent

voluntarily dismissed that claim, with prejudice.

Additionally, relevant to this appeal, on October 5, 2018, the circuit court

entered an order denying Fairmont Tool’s renewed Rule 50(b) motion as to the FMLA

interference claim. The circuit court concluded that for an employee to succeed on an

FMLA interference claim, the employee must prove that “(1) he is entitled to FMLA

benefits; (2) his employer interfered with the provision of that benefit; and (3) that

interference caused harm.” See Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81

(2002). The court acknowledged that “[i]f a notice violation occurs, the FMLA grants no

relief absent a showing of prejudice[,]” see id., and “[w]here an employee suffers harm due

to the employer’s interference, or would have structured leave differently absent a failure

11

of requisite notice, he has suffered prejudice.” See Vannoy v. Fed. Res. Bank of Richmond,

827 F.3d 296 (4th Cir. 2016). 16 The circuit court found that there was legally sufficient

evidence presented upon which a reasonable jury could find that Fairmont Tool failed to

notify respondent of his eligibility to take FMLA leave. With regard to evidence that

respondent suffered prejudice due to Fairmont Tool’s interference with respondent’s

FMLA rights – the element of respondent’s FMLA interference claim that is at issue in this

appeal – the circuit court determined that Fairmont Tool’s “interference caused harm as

[respondent’s] treatment was delayed which resulted in medical complications further

delaying treatment, inability to procure unemployment, and ultimately a feeling that

[respondent] was given a ‘death sentence’ in light of the delay.”

The numerous orders and amended orders entered during the course of this

matter culminated in the entry of the Amended Judgment Order of December 2, 2020. In

that order, the circuit court, inter alia, granted respondent’s motion for prejudgment

interest, liquidated damages, reasonable attorneys’ fees, and litigation costs, all in relation

to the jury’s verdict on the FLMA interference claim. In total, a judgment in the amount of

$67,639.82 was entered in respondent’s favor. This appeal followed.

The jury was instructed on the elements of respondent’s FMLA interference claim

16

including that it must determine whether Fairmont Tool failed to notify respondent of his

eligibility to take FMLA leave and whether such failure “resulted in an impairment of the

plaintiff’s rights and resulting prejudice, i.e., the plaintiff would not have structured his

leave in the same way had notice been provided.”

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II. Standard of Review

Our review is focused on the circuit court’s order denying Fairmont Tool’s renewed

50(b) motion as to respondent’s FMLA interference claim:

The appellate standard of review for an order granting

or denying a renewed motion for a judgment as a matter of law

after trial pursuant to Rule 50(b) of the West Virginia Rules of

Civil Procedure [1998] is de novo.

Syl. Pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009). Furthermore,

“[i]n determining whether there is sufficient evidence to

support a jury verdict the court should: (1) consider the

evidence most favorable to the prevailing party; (2) assume

that all conflicts in the evidence were resolved by the jury in

favor of the prevailing party; (3) assume as proved all facts

which the prevailing party’s evidence tends to prove; and (4)

give to the prevailing party the benefit of all favorable

inferences which reasonably may be drawn from the facts

proved.” Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335,

315 S.E.2d 593 (1983).

Fredeking, 224 W. Va. at 1, 680 S.E.2d at 17, Syl. Pt. 2. See also Syl. pt. 1, Jones v.

Patterson Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999) (“‘“When the

plaintiff’s evidence, considered in the light most favorable to him, fails to establish a prima

facie right to recovery, the trial court should direct a verdict in favor of the defendant.” Syl.

Pt. 3, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964).’ Syl. Pt. 1, Brannon v.

Riffle, 197 W. Va. 97, 475 S.E.2d 97 (1996).”). With these standards to guide us, we now

consider the case before us.

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III. Discussion

Although Fairmont Tool raises several assignments of error, 17 we focus our

discussion on the question of whether the circuit court erred in denying the company’s

motion for post-trial relief on respondent’s FMLA interference claim as it is dispositive of

this appeal. Fairmont Tool argues that respondent failed to prove the elements of his FMLA

interference claim, most notably that he suffered prejudice as a result of Fairmont Tool’s

technical violation of the statute. Fairmont Tool contends that respondent failed to present

any evidence of the harm he claims he suffered – that is, that he “would not have structured

his leave in the same way” had the company provided him notice of his rights under the

FMLA. See n.16, supra. Rather, Fairmont Tool argues, respondent’s testimony

concentrated inordinately on his failed claim that he was wrongfully discharged in

retaliation for his intention to take FMLA leave, including that he could not afford to pay

for care and treatment after he was laid off and further, that he suffered severe emotional

distress because his chemotherapy treatment was delayed, which evidence was offered in

support of his tort of outrage claim. Fairmont Tool argues that because respondent failed

18

to prove that he would have structured his leave differently if notice of his FMLA rights

To the extent respondent also suggests that several of Fairmont Tool’s post-trial

17

motions were filed untimely, he fails to assert a cross-assignment of error on the issue.

As noted above, although the jury returned a verdict in favor of respondent on his

18

tort of outrage claim, the circuit court granted Fairmont Tool a new trial on that claim

because the verdict “was based on findings regarding wrongful termination, a claim which

was dismissed by the [c]ourt.” Respondent later dismissed that claim voluntarily, with

prejudice.

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had been provided, its post-trial motion for judgment as a matter of law should have been

granted.

In response, respondent states that the circuit court correctly concluded that

it was within the province of the jury to determine whether he adequately demonstrated

that he was prejudiced by Fairmont Tool’s failure to notify him of his FMLA rights and

that, when giving him the benefit of all favorable inferences that may reasonably be drawn

from the facts, the jury’s verdict must be upheld. Respondent does not cite to any evidence

of record which he contends proves he suffered prejudice for purposes of an FMLA

interference claim.

The FMLA provides eligible employees with certain rights and protections,

including up to a total of twelve unpaid workweeks of leave during any twelve-month

period due to, among other reasons, “a serious health condition” that renders the employee

unable to perform his or her job. 29 U.S.C. § 2612(a)(1)(D). 19 The FMLA makes it

“unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right provided under [the statute’s] subchapter,” 29 U.S.C. § 2615 (a)(1),

and “[a]ny violations of the [FMLA or its regulations] constitute interfering with,

FMLA leave may be taken continuously in one block of time or, with the

19

agreement of the employer, intermittently. See 29 U.S.C. § 2612(b). If the employee is

insured under a group health insurance plan, the FMLA requires the employer to maintain

coverage “for the duration of such leave at the level and under the conditions coverage

would have been provided if the employee had continued in employment continuously for

the duration of such leave.” 29 U.S.C. § 2614(c)(1).

15

restraining, or denying the exercise of rights provided by the Act.” 29 C.F.R. § 825.220

(b). Among other duties, an employer is required “to communicate with employees

regarding their rights under the FMLA. In particular, the regulations require employers to

provide employees with individualized notice of their FMLA rights and obligations.”

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3rd Cir. 2004), holding

modified by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3rd Cir. 2009). See also Villegas

v. Albertsons, LLC, 96 F.Supp.3d 624 (W.D.Tex. 2015); Valdez v. E.M. T-Shirts Distrib.,

Inc., 878 F.Supp.2d 357 (D. P.R. 2012); Capilli v. Whitesell Constr. Co., 2006 WL

1722354 (D.N.J. 2006). The purpose of the notification requirements

“is to ensure that employers allow their employees to make

informed decisions about leave. . . . The overall intent of the

FMLA is lost when an employer fails to provide an employee

with the opportunity to make informed decisions about her

leave options and limitations. Without such an opportunity, the

employee has not received the statutory benefit of taking

necessary leave with the reassurance that her employment,

under proscribed conditions, will be waiting for her when she

is able to return to work.”

Conoshenti, 364 F.3d at 144 (quoting Nusbaum v. CB Richard Ellis, Inc., 171 F.Supp.2d

377, 385-86 (D.N.J. 2001)); accord Vannoy, 827 F.3d at 301. Here, respondent contends

that Fairmont Tool interfered with, restrained, or denied him benefits by failing to notify

him of his eligibility to take FMLA leave after he informed his supervisors and other

company personnel of his illness and need for such leave.

To prevail on a claim that an employer unlawfully interfered with an

employee’s rights under the FMLA, the employee must prove that “(1) he was eligible for

16

the FMLA , (2) his employer was covered by the FMLA, (3) he was entitled to leave under

the FMLA, (4) he provided notice of his intent to take leave, and (5) his employer denied

him FMLA benefits to which he was entitled.” Lutes v. United Trailers, Inc., 950 F.3d 359,

363 (7th Cir. 2020) (citing 29 U.S.C. § 2615). Although FMLA interference claims do not

require a showing of intent on the part of the employer, proof of an interference violation

is not enough to establish injury; an employee must also show that he or she was prejudiced

by the violation. See Ragsdale, 535 U.S. at 89, 91 (instructing that 29 U.S.C. § 2617

“provides no relief unless the employee has been prejudiced by the violation” and directing

courts to ask “what steps the employee would have taken had the employer given the

required notice). Thus, even if a reasonable jury finds that an employer interfered,

restrained, or denied the exercise of FMLA rights, the employee must still prove that he

was prejudiced by the violation in order to recover. 20 “The employer is liable only for

compensation and benefits lost ‘by reason of the violation,’ § 2617(a)(1)(A)(i)(I), for other

monetary losses sustained ‘as a direct result of the violation,’ § 2617(a)(1)(A)(i)(II), and

for ‘appropriate’ equitable relief, including employment, reinstatement, and promotion,

See Jones v. Children’s Hosp., 58 F.Supp.3d 656, 668-69 (E.D. La. 2014) (citing

20

Ragsdale, 535 U.S. at 82); accord Vannoy, 827 F.3d at 301 (stating that “if a notice

violation occur[s], the ‘FMLA’s comprehensive remedial mechanism’ grants no relief

absent a showing that the violation prejudiced” the plaintiff (quoting Ragsdale, 535 U.S.

at 89)); Downey v. Strain, 510 F.3d 534, 540 (5th Cir. 2007) (“[The] FMLA’s remedial

scheme . . . requires an employee to prove prejudice as a result of an employer’s

noncompliance”); Mammen v. Thomas Jefferson Univ., 523 F.Supp.3d 702, 725 (E.D. Pa.

2021) (“The employee must also establish prejudice stemming from the employer’s

[FMLA] violation”).

17

§ 2617(a)(1)(B). The remedy is tailored to the harm suffered.” Ragsdale, 535 U.S. at 89

21

(footnote added). See also Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014)

(determining that “in order to prove that she was ‘prejudiced’ by an FMLA violation, a

plaintiff such as Evans need only demonstrate some harm remediable by either ‘damages’

or ‘equitable relief’”). In sum, for purposes of a FMLA interference claim, “[p]rejudice

exists when an employee loses compensation or benefits by reason of the violation, sustains

other monetary losses as a direct result of the violation, such as the cost of providing care,

or suffers some loss in employment status such that equitable relief is appropriate.” Jones

v. Children’s Hosp., 58 F. Supp.3d 656, 669 (E.D. La. 2014) (footnote omitted).

21

29 U.S.C § 2617(a), regarding civil actions by employees, provides, in relevant

part, as follows:

(1) Liability

Any employer who violates section 2615 of this title shall be

liable to any eligible employee affected--

(A) for damages equal to--

(i) the amount of--

(I) any wages, salary, employment benefits, or other

compensation denied or lost to such employee by reason of the

violation; or

(II) in a case in which wages, salary, employment benefits, or

other compensation have not been denied or lost to the

employee, any actual monetary losses sustained by the

employee as a direct result of the violation, such as the cost of

providing care, up to a sum equal to 12 weeks (or 26 weeks, in

a case involving leave under section 2612(a)(3) of this title) of

wages or salary for the employee;

....

and

(B) for such equitable relief as may be appropriate, including

employment, reinstatement, and promotion.

18

Accordingly, we hold that to prevail on a claim that an employer unlawfully

interfered with an employee’s rights under the FMLA, the employee must prove that (1)

he or she was eligible for FMLA benefits, (2) the employer was covered by the FMLA, (3)

the employee was entitled to leave under the FMLA, (4) he or she provided notice of the

intention to take leave, and (5) the employer denied the employee FMLA benefits to which

he or she was entitled. The employee must also prove that he or she was prejudiced by the

employer’s violation of the statute.

For purposes of this appeal, Fairmont Tool does not dispute that respondent

was eligible for FMLA benefits, that Fairmont Tool was covered by the FMLA, and that

respondent was entitled to FMLA leave. And, although Fairmont Tool argues that

respondent failed to prove that he gave proper notice of his intention to take FMLA leave

and that, in turn, also failed to prove that the company interfered with, restrained, or denied

him the benefits to which he was entitled under the FMLA, the jury concluded otherwise.

Respondent testified that, upon receiving his cancer diagnosis in April of 2015, he began

asking for information about the FMLA from Fairmont Tool personnel, including his

supervisor, Pat Stevens, and the office manager, Tammy Hendricks. Respondent testified

that his efforts were unavailing as they told him (incorrectly) that Fairmont Tool did not

offer FMLA leave. In contrast, Mr. Stevens and Ms. Hendricks testified that respondent

never approached them about FMLA. In our review of the circuit court’s order denying

Fairmont Tool’s post-trial motion for judgment under Rule 50(b), we must assume that the

19

jury resolved the conflicts in the evidence in favor of respondent, the prevailing party. See

Fredeking, 224 W. Va. at 1, 680 S.E.2d at 17, Syl. Pt. 3. See also Syl. Pt. 11, Jordan v.

Jenkins, 245 W. Va. 532, 859 S.E.2d 700 (2021) (“It is the peculiar and exclusive province

of a jury to weigh the evidence and to resolve questions of fact when the testimony of

witnesses regarding them is conflicting and the finding of the jury upon such

facts will not ordinarily be disturbed.” (Internal citations omitted)). Accordingly, we will

not disturb the jury’s finding that, based upon the evidence, Fairmont Tool violated 29

U.S.C. § 2615(a)(1) of the FMLA.

The primary focus of Fairmont Tool’s appeal is whether respondent proved

that he was prejudiced by the company’s interference with his FMLA rights. Respondent

claimed that “Fairmont Tool’s failure to provide notice resulted in an impairment of

[respondent’s] rights and resulting prejudice, i.e., [respondent] would not have structured

his leave in the same way had notice been provided.” 22 Courts have instructed that this is a

remediable harm where there has been a violation of 29 U.S.C. § 2615(a)(1): “Prejudice

may be gleaned from evidence that had the [employee] received the required (but omitted)

information regarding his FMLA rights, he would have structured his leave differently.”

Vannoy, 827 F.3d at 302. 23 See also Hannah P. v. Coats, 916 F.3d 327, 346 (4th Cir. 2019)

22

See n.16, supra.

By way of illustration, the United States Supreme Court in Ragsdale found the

23

following scenario to be “reasonable”:

Continued . . .

20

(“Appellee’s failure to provide notice of the availability of FMLA leave prejudiced Hannah

because if she had been aware of the availability of FMLA leave, she could have structured

her leave differently”); Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F.Supp.3d

744, 758 (W.D. Pa. 2016), aff’d sub nom, 704 F. Appx. 152 (3d Cir. 2017) (stating that

employee could show prejudice by demonstrating that “‘had she been properly informed

[of her FMLA rights] . . . she could have structured her leave differently’” (internal citation

omitted)); Lupyan v. Corinithian Colleges, Inc., 761 F.3d 314, 319 (3d Cir. 2014)

(employee’s claim that because employer’s failure to inform her “that her leave was under

the FMLA. . . . she therefore was unaware of the requirement that she had to return to work

in twelve weeks or be subject to termination” was sufficient to survive summary judgment).

Consider, for instance, the right under § 2612(b)(1) to

take intermittent leave when medically necessary. An

employee who undergoes cancer treatments every other week

over the course of 12 weeks might want to work during the off

weeks, earning a paycheck and saving six weeks for later. If

she is not informed that her absence qualifies as FMLA – and

if she does not know of her right under the statute to take

intermittent leave – she might take all 12 of her FMLA-

guaranteed weeks consecutively and have no leave remaining

for some future emergency. In circumstances like these,

Ragsdale argues, the employer’s failure to give the notice

required by the regulation could be said to “deny,” “restrain,”

or “interfere with” the employee’s exercise of her right to take

intermittent leave.

535 U.S. at 89-90.

21

On appeal, respondent fails to cite to any evidence of record showing that

he suffered prejudice as a result of Fairmont Tool’s failure to notify him of his FMLA

rights. Again, “prejudice exists where an employee [inter alia] loses compensation or

benefits ‘by reason of the violation,’ 29 U.S.C. § 2617(a)(1)(A)(i)(1)[.]” Reed v. Buckeye

Fire Equip., 241 F. App’x 917, 924 (4th Cir. 2007). Respondent failed to present any

evidence to the jury demonstrating that he lost compensation or benefits by reason of

Fairmont Tool’s technical violation of the FMLA. While the jury awarded respondent

$3,520.00 in lost wages and $881.22 in lost benefits, he did not claim those losses resulted

from Fairmont Tool’s notice violation. Instead, he claimed those damages in connection

with his FMLA retaliation claim that was dismissed following the presentation of

respondent’s case-in-chief. Finally, respondent presented no evidence as to how he would

have structured his leave had Fairmont Tool advised him of his rights under the FMLA.

Respondent’s blanket assertion that he “would not have structured his leave in the same

way had notice been provided,” without more, was simply insufficient to prove the required

element of harm at trial. 24

See Ragsdale, 535 U.S. at 90 (“Ragsdale has not shown that she would have taken

24

less leave or intermittent leave if she had received the required notice”); Dorsey v.

Jacobson Hollman, PLLC, 476 F. App’x 861, 862 (D.C. Cir. 2012) (concluding plaintiff

could not show prejudice where she “never returned to work” and “provides no record

evidence whatsoever that she could have structured her leave differently” had she been

properly informed about FMLA leave); Caplan, 210 F.Supp.3d at 758 (although plaintiff

“makes the blanket assertion that if properly informed about her FMLA rights ‘she would

have structured her leave differently so that her job would have been protected,’ she does

not state how she would have structured her leave, or how that restructuring would have

protected her job”); Waggel v. George Wash. Univ., 957 F.3d 1364, 1377 (D.C. Cir. 2020)

(concluding that because plaintiff “fail[ed] to identify evidence of prejudice arising ‘by

Continued . . .

22

Therefore, we are compelled to find that the circuit court erred in denying

Fairmont Tool’s renewed Rule 50(b) motion for judgment as a matter of law.

IV. Conclusion

For the reasons stated above, we conclude that the circuit court erred in

denying Fairmont Tool’s Rule 50(b) motion for judgment as a matter of law, and order that

the jury verdict in favor of respondent be reversed.

Reversed.

reason of the [FMLA] violation’ or ‘as a direct result of the violation,’” her claim

necessarily fails); McCormack v. Blue Ridge Behav. Healthcare, 523 F.Supp.3d 841, 856

(W.D. Va. 2021) (holding that plaintiff failed to present “any evidence indicating that she

lost compensation or suffered any other form of monetary loss as a result of the alleged

interference with her FMLA rights”). But see Hannah P., 916 F.3d at 347 (“[T]he record

contains evidence that if Hannah had known that the FMLA protected her position, she

would have used only sick leave for her leave of absence. . . . Instead, she used a

combination of sick leave and annual time to take four weeks off. According to Hannah,

‘[u]nlike annual leave, sick leave is not paid out at the end of an employee’s service,

resulting in a loss of a benefit worth at least $20,000.’”).

23