Fairmont Tool, Inc. v. Opyoke

• Citation: 247 W.Va. 305,879 S.E.2d 792
• Decision Date: 09 June 2022
• Docket Number: 20-1042
• Parties: FAIRMONT TOOL, INC., Defendant Below, Petitioner, v. Norvel Louis OPYOKE, Plaintiff Below, Respondent.
• Court: Supreme Court of West Virginia

247 W.Va. 305

879 S.E.2d 792

FAIRMONT TOOL, INC., Defendant Below, Petitioner,

v.Norvel Louis OPYOKE, Plaintiff Below, Respondent.

No. 20-1042

Supreme Court of Appeals of West Virginia.

Submitted: January 25, 2022

Filed: June 9, 2022

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

HUTCHISON, Chief Justice:

Following a diagnosis of cancer

in April of 2015, Respondent Norvel Louis Opyoke¹ 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 13^th 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 20^th, he was "feeling good enough to work" until August 16^th, 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 1^st – 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 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 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...