Fairmont Tool, Inc. v. Opyoke, 20-1042

CourtSupreme Court of West Virginia
Writing for the CourtHUTCHISON, Chief Justice:
PartiesFAIRMONT TOOL, INC., Defendant Below, Petitioner, v. NORVEL LOUIS OPYOKE, Plaintiff Below, Respondent.
Decision Date09 June 2022
Docket Number20-1042

FAIRMONT TOOL, INC., Defendant Below, Petitioner,

NORVEL LOUIS OPYOKE, Plaintiff Below, Respondent.

No. 20-1042

Supreme Court of Appeals of West Virginia

June 9, 2022

Submitted: January 25, 2022

Appeal from the Circuit Court of Marion County The Honorable Patrick N. Wilson Civil Action No. 15-C-252

J. Robert Russell, Esq. David L. T. Butler, Esq. Shuman McCuskey Slicer PLLC Morgantown, West Virginia Counsel for Petitioner

Karl Kolenich, Esq. Klie Law Offices, PLLC Buckhannon, West Virginia Counsel for Respondent

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



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.



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").[2] For approximately four months, Fairmont Tool failed to advise respondent of his FMLA rights, in violation of 29 U.S.C. § 2615(a)(1).[3] Respondent sued Fairmont Tool in the Circuit Court of Marion 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, [4] for which 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


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")[5], common law retaliatory discharge, failure to notify of FMLA rights ("FMLA interference"), and the tort of outrage were presented at a jury trial in July of 2017.[6] Respondent also sought punitive damages.


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, [7] he was moved to 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


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, [8] who he contends told him that "FMLA wasn't offered at Fairmont Tool."[9] Ms. Hendricks denied ever speaking with respondent 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


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.


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.

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, [11] which 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...

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