Kerr v. McKay

• Decision Date: 04 February 2022
• Docket Number: Civil Action 2:20-cv-00190
• Parties: LISA MARIE KERR, Plaintiff, v. SHANNON McKAY, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

LISA MARIE KERR, Plaintiff, v. SHANNON McKAY, et al., Defendants.

Civil Action No. 2:20-cv-00190

United States District Court, S.D. West Virginia, Charleston Division

February 4, 2022

PROPOSED FINDINGS & RECOMMENDATION

Dwane L. Tinsley, United States Magistrate Judge

This matter is assigned to the Honorable John T. Copenhaver, Jr. Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 2.) Before this Court are the motions for summary judgment filed by Defendants West Virginia Department of Health and Human Resources (“WVDHHR”) (ECF No. 78), Lance Whaley (“Whaley”) (ECF No. 82), and Shannon McKay (“McKay”) (ECF No. 74) (collectively “Defendants”). For the reasons explained more fully herein, the undersigned respectfully RECOMMENDS that Defendants' motions (ECF Nos. 74, 82, and 78) be GRANTED.

I. BACKGROUND

Plaintiff Lisa Marie Kerr (“Plaintiff”) brings this civil action for defamation and unlawful discrimination arising from her suspension without pay from her employment as a Social Services Worker II in the Adult Services department of the West Virginia Department of Health and Human Resources (“WVDHHR”) between September 5, 2019, and September 18, 2019. (See ECF Nos. 30 and 74-1 at 2.) Plaintiff alleges that the WVDHHR and Defendants McKay-“the Community Service Manager” of Plaintiff's Lincoln County office-and Whaley-McKay's “superior, . . . the Regional Supervisor for [WVDHHR] in District II, ” initiated suspension proceedings based upon “false violence accusations” as “a pretext to discriminate against LGBT employee Ms. Kerr, ” due to her status as a “non-gender-conforming lesbian” and her perceived failure to “speak, walk, talk and act more femininely.” (ECF Nos. 30 at 2 and 94 at 22-23.) Plaintiff's central theory is that Defendants' allegedly false explanation for the suspension belies their belief of the “stereotype that lesbians are aggressive and violent.” (ECF No. 94 at 22-23.)

Plaintiff avers that on March 26, 2019, she requested that a supervisor deal with two co-workers whom Plaintiff “caught sneaking off” with a state vehicle that Plaintiff “had signed out to transport a client.” (ECF No. 30 at 7.) She alleges that another co-worker paged McKay, and when McKay arrived, she “immediately-and incorrectly- assumed that [Plaintiff] was the wrongdoer, rather than the victim, because of her bias against [Plaintiff] as a lesbian who does not conform to traditional feminine gender norms.” (ECF No. 1-2 at 9-10.)^[1] According to Plaintiff, when she tried to explain the situation to McKay, McKay shouted at her and told her that she was “being ‘aggressive.'” (Id. at 10.) Plaintiff alleges that when she asked McKay how to report her co-workers who had used the vehicle Plaintiff had signed out, McKay demonstrated “a statement made with every type of exaggerated feminine gesture and wording one might imagine.” (Id.) Plaintiff avers that she then accused McKay of being biased against her because she was “not as feminine as the other workers, ” and McKay “punished” her by forcing her to go home and use a day of annual leave. (Id. at 10-11.)

That same day, Plaintiff alleges, she filed a Level I grievance against McKay arising from the incident, in which she claimed unlawful sex discrimination and retaliation. (Id.) Plaintiff avers that on April 3, 2019, WVDHHR's “internal EEO investigator, ” Carlotta Gee (“Gee”), contacted Plaintiff, McKay, and other employees to schedule interviews for an internal “EEO investigation.” (Id. at 11, 13.) According to Plaintiff, she also received a “pre-determination” letter from McKay that day, which “accused [Plaintiff] of wrongdoing in the same incident on which [her] Title VII grievance was based, and asked her to attend a conference.” (Id. at 11.) Plaintiff alleges that at the April 10, 2019 conference, McKay and Whaley “falsely accused [her] of being thrown out of CAMC Hospital” and the Lincoln County Courthouse. (Id. at 11-12.) Plaintiff further alleges that when she asked McKay and Whaley “for the source and details of the accusations, ” McKay refused to tell her. She avers that her direct supervisor, Julia Morton (“Morton”), was present “and seemed flustered by the attacks on [Plaintiff].” According to Plaintiff, Morton encouraged her to “just admit it and we can get this over with.” (Id. at 12.) Plaintiff alleges that “Whaley then leaned forward and spoke in a lowered tone: ‘I don't have that EEO report, so I don't know what it says, Lisa. But let's say DHHR puts out a report that says you go around committing violence and threats everywhere you go. Wouldn't that mean we're right about this violence stuff? Wouldn't you have to admit there's something to it?” (Id.) Plaintiff avers that she “denied all of the accusations.” (Id.)

Plaintiff alleges that more than a month later, on May 31, 2019, McKay “stormed into [Plaintiff's] office with another supervisor (Jennifer Beckett [(“Beckett”)]) in tow” after Plaintiff “(unavoidably) arrived late at an ‘active shooter training[]' [conducted by the West Virginia State Police (“WVSP”)], asked a few questions, and excused herself.” (Id.) According to Plaintiff, McKay appeared “[v]isibly confrontational” and “claimed (while Beckett stood silent) that ‘[WVSP] are never sending anyone to DHHR again, in the whole state, because of you screaming and threatening and bullying that police officer in there.'” (Id.) Plaintiff avers that she “had no idea what McKay was talking about, ” so she “quietly told McKay that she had no choice but to report this to the grievance board as an additional incident of retaliation.” (Id.) She alleges that McKay then accused Plaintiff of threatening her. (Id.) According to Plaintiff, “McKay did not attend the training, and thus could not have witnessed what she claimed to describe, ” and Beckett, who did attend the training, “did not support McKay's wild accusations.” (Id.) Plaintiff alleges that McKay issued another “pre-determination” letter stemming from the active shooter training. (Id.)

Plaintiff avers that on June 6, 2019, Gee wrote a letter stating that WVDHHR determined after its internal investigation that “a complaint” of sexual orientation discrimination was not substantiated, but the letter “did not mention [Plaintiff's] actual complaint for sex/gender bias and retaliation, ” nor did it “call [Plaintiff] an ‘aggressor'” or “describe any conduct by [her].” (Id. at 13.) However, Plaintiff alleges, the letter included a statement of WVDHHR's zero-tolerance retaliation policy. (Id.)

She further alleges that the next day, on June 7, 2019, she attended a conference related to the active shooter training incident, at which McKay and Whaley informed her that WVSP “filed an official complaint” against her “but refused to provide the complaint itself, or any details.” (Id. at 12.) She claims that “the second meeting went like the first: Whaley threatened that an EEO investigation would find [Plaintiff] to be ‘violent,' McKay became irate when asked for details about anything, and [Plaintiff's] inexperienced supervisor Morton offered no corroboration, but begged [Plaintiff] to admit everything so that they could leave.” (Id. at 12-13.) Plaintiff avers that she offered to apologize to the officer for arriving at the training late and leaving early, but McKay “became furious, panicked and defensive” and “shouted” at Plaintiff to not contact WVSP or “question anything I say ever again.” (Id. at 13.) According to Plaintiff, “McKay then called in Beckett” and “tried to coach [her] into saying that [Plaintiff] ‘waved her fists in the officer's face' and threatened violence” at the training, but Beckett confirmed Plaintiff's statements about what happened. (Id.) Plaintiff claims that she asked McKay “to stop with this fist thing now” and made a “pleading” gesture with her hands, but “McKay joyously cried out” that Plaintiff was “putting her fists up in a boxing stance.” (Id.) Plaintiff avers that Beckett “roll[ed] her eyes” and left the room. (Id.)

According to Plaintiff, “McKay finally made herself available for a Level I grievance hearing” on August 20, 2019. (Id.) Plaintiff alleges that McKay “invented a tale of [Plaintiff] rampaging through the DHHR parking lot chasing women around cars, and brandishing her fists ‘like a boxer, '” and “claim[ed] that everyone at DHHR was so frightened of [Plaintiff] that they asked McKay to call 911 and change the locks so that [Plaintiff] could not re-enter the building.” (Id. at 13-14.) Plaintiff further alleges that McKay admitted upon cross-examination that she did not witness the incident in the parking lot but “claimed that her story was supported by four witnesses.” (Id.) According to Plaintiff, McKay “could only produce two” witnesses, and neither witness's testimony supported McKay's version of events. (Id. at 14.) Plaintiff avers that one witness “testified that the idea to call 911 and change locks came from McKay, not from anyone else, ” but the witness did not follow McKay's directions “because she did not see any reason for it.” (Id.) Plaintiff alleges that she then became “terrified that McKay would call 911 on her, falsely claim she was rampaging like a boxer, and get her shot dead, ” which caused her to have a panic attack at work the following day and use prescription anti-anxiety medication “for nearly a week.” (Id.) She claims that she “still has tremors whenever she sees McKay, and leaves the room when possible, ” that she “is afraid to speak when McKay is in the vicinity, ” and that she “stuffs her hands in her pockets so that McKay will not make the delusional claim that [she] is...