Jaymes Faulk v. Mildred Mitchell-Bateman Hospital

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
JAYMES FAULK, November 1, 2023
Plaintiff Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-209 (Cir. Ct. Cabell Cnty. No. 18-C-454) OF WEST VIRGINIA

MILDRED MITCHELL-BATEMAN HOSPITAL
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Jaymes Faulk appeals the Circuit Court of Cabell County’s September
28, 2022, order granting summary judgment against him in his racial discrimination and
hostile work environment case. Respondent Mildred Mitchell-Bateman Hospital
(“Hospital”) timely filed its response. 1 Mr. Faulk filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Mr. Faulk began working at the Hospital as a Certified Nursing Assistant (“CNA”)
through a staffing agency, Aureus Nursing, in January of 2017. 2 The Hospital is a
psychiatric facility located in Huntington, West Virginia, and operated by the Department
of Health and Human Resources. The workforce at the Hospital includes both full-time
employees and those who are contracted through staffing agencies to work for fixed periods
of time, such as Mr. Faulk. While working as a CNA at the Hospital, Mr. Faulk received
his paychecks from Aureus Nursing rather than the Hospital. During his time at the
Hospital, Mr. Faulk’s initial three-month contract placement was renewed several times.

1
Mr. Faulk is represented by John-Mark Atkinson, Esq., and Robert B. Warner,
Esq. Mildred Mitchell-Bateman Hospital is represented by Perry W. Oxley, Esq., David E.
Rich, Esq., and Samantha J. Fields, Esq.
2
Within the agreement between Aureus Nursing and the State of West Virginia,
subsection 4.3.5 states that “[the] [f]acility reserves the right to terminate any RN, LPN, or
CNA providing services to the facility.”

1
While at the Hospital, Mr. Faulk’s conduct was the subject of several investigations
by Adult Protective Services (“APS”). Alleged incidents included Mr. Faulk transporting
a patient without notification in direct violation of Hospital policy, using inappropriate
language in front of patients, threatening to inject a patient with a needle during a verbal
argument over a card game, and threatening to break a patient’s finger. Mr. Faulk was also
involved in an incident where he approached a female nurse from behind and attempted to
scare her. The nurse reported this occurrence to her supervisor, who told Mr. Faulk to
apologize, and reminded him that this behavior was inappropriate for an acute psychiatric
facility. Another incident involved a patient accusing Mr. Faulk of hitting him in the eye.
In total, during his thirteen months of employment, Mr. Faulk was suspended from work
five times, causing him to miss 112 days of work. Each suspension coincided with a
pending investigating, during which Mr. Faulk’s position was left open, and the hospital
functioned with one less CNA.

In March of 2018, the Hospital received a report that a discharged patient claimed
that “a black guy named James” [sic] had raped her sometime between March 14, 2018,
and March 17, 2018. Mr. Faulk was the only employee named “James” or “Jaymes”
working at the Hospital on those dates who matched the report’s description. Following
this allegation, he was removed from the Hospital’s work schedule pending an
investigation conducted by APS. The allegation was eventually found to be
unsubstantiated.

On March 27, 2018, Mr. Faulk’s contract with the Hospital was terminated before
the investigation into the rape allegation was completed. The decision was made by the
Hospital’s Chief Executive Officer, Craig Richards; Human Resources Director Tamara
Kuhn; and Director of Nursing, Cheryl Williams. The Hospital cited the multiple prior
investigations into Mr. Faulk’s conduct as the reason for his termination.

On September 10, 2018, Mr. Faulk filed his Complaint against the Hospital in the
Circuit Court of Cabell County. Count I alleged wrongful discharge based on racial
discrimination under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1
to -20. Count II alleged a hostile work environment under the West Virginia Human Rights
Act, and Count III alleged intentional infliction of emotional distress. 3

During a deposition, Mr. Faulk admitted that that no one from the Hospital had said
or done anything to make him believe that his termination was racially motivated, and that
during his employment he had never felt discriminated against. Mr. Faulk also recognized
that he was a contract worker and thus not entitled to the progressive disciplinary policy
that the Hospital follows with its full-time employees.

Although Mr. Faulk alleged a cause of action regarding intentional infliction of
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emotional distress below, he does not discuss this claim on appeal.

2
On December 21, 2020, the Hospital moved for summary judgment. Mr. Faulk filed
his response to “Defendant’s Motion for Summary Judgment” on August 26, 2022. The
Hospital filed a “Reply in Support of Defendant’s Motion for Summary Judgement” on
August 29, 2022. On September 1, 2022, the circuit court held a hearing on the Hospital’s
motion for summary judgment. The Hospital argued that Mr. Faulk was terminated due to
the five investigations into his conduct and that there was no evidence of racial intent. Mr.
Faulk argued that the Hospital failed to give a clear reason for his termination, and that
there was insufficient misconduct to justify the termination of his contract.

On September 28, 2022, the circuit court entered an order granting the Hospital
summary judgment on all claims. The circuit court held that Mr. Faulk’s complaint did not
satisfy the three-prong discrimination test set forth in Conaway v. Eastern Associated Coal
Corp., 178 W. Va. 164, 170, 358 S.E.2d 423, 429 (1986). The circuit court found that there
was no evidence of racial motivation with regard to the termination of Mr. Faulk’s contract.
Further, the circuit court concluded that even if Mr. Faulk could satisfy the three-prong
Conaway test, the Hospital demonstrated a non-discriminatory reason for Mr. Faulk’s
termination, in that there were several allegations of abuse and neglect of patients, and Mr.
Faulk offered no evidence that this reason was merely a pretext. The circuit court found
that Mr. Faulk had been the subject of five APS investigations during his thirteen months
at the Hospital, and each of these investigations carried a suspension from work, resulting
in Mr. Faulk’s absence for 27% of his scheduled work hours. Similarly, with regard to Mr.
Faulk’s claim of a hostile work environment, the circuit court found that Mr. Faulk offered
no evidence to support his claim. It is from this order that Mr. Faulk now appeals.

Our standard of review is as follows, as set forth by the Supreme Court of Appeals
of West Virginia, “[a] circuit court’s entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In conducting our de
novo review, we apply the same standard for granting summary judgment that is applied
by the circuit court. Under this standard,

[s]ummary judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, such as where
the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove.

Id. at 190, 451 S.E.2d at 756, syl. pt. 4. We note that “[t]he circuit court’s function at the
summary judgment stage is not to weigh the evidence and determine the truth of the matter,
but is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756,
syl. pt. 3. Finally, we recognize that “the party opposing summary judgment must satisfy
the burden of proof by offering more than a ‘mere scintilla of evidence’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams v.
Precision Coil, Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995).

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On appeal, Mr. Faulk advances two arguments. First, Mr. Faulk argues that the
circuit court erred in finding that he did not establish a prima facie case of race
discrimination. Second, Mr. Faulk avers that the circuit court erred in finding that he did
not establish a prima facie case of a hostile work environment.

Turning to Mr. Faulk’s claim of racial discrimination, the Supreme Court of Appeals
of West Virginia has held that “[t]o successfully defend against a motion for summary
judgment, the plaintiff must make some showing of fact which would support a prima facie
case for his claim.” Syl. Pt. 2, Conaway, 178 W. Va. at 166, 358 S.E.2d at 425. In order to
make a prima facie case of employment discrimination in West Virginia, the plaintiff must
establish “(1) That the plaintiff is a member of a protected class; (2) That the employer
made an adverse decision concerning the plaintiff; and (3) But for the plaintiff’s protected
status, the adverse decision would not have been made.” Id. at 166, 358 S.E.2d at 425, syl.
pt. 3; see also Syl. Pt. 1, Knotts v. Grafton City Hosp., 237 W. Va. 169, 786 S.E.2d 188
(2016). Our Supreme Court has further recognized that because there is normally little
direct proof of discrimination available, “[w]hat is required of the plaintiff is to show some
evidence that would sufficiently link the employer’s decision and the plaintiff’s status as a
member of a protected class so as to give rise to an inference that the employment decision
was based on an illegal discriminatory criterion.” Conaway, 178 W. Va. at 171, 358 S.E.2d
at 430. If the plaintiff is successful in creating a rebuttable presumption of discrimination,
the burden shifts to the defendant to offer a legitimate and nondiscriminatory reason. See
Id. at 166, 358 S.E.2d at 425, syl. pt. 4. If a defendant makes this showing, the plaintiff is
required to show that the legitimate, nondiscriminatory reason for his termination was
pretextual. See Id.

Upon review, we find no error in the circuit court’s decision to grant summary
judgment. We agree that Mr. Faulk failed to make a prima facie case of either race
discrimination or a hostile work environment. While we recognize that Mr. Faulk is a
member of a protected class and the Hospital made an adverse employment action against
him in terminating his contract, he did not produce evidence that, but for his protected
status, the Hospital would not have ended his contract. Because Mr. Faulk did not
demonstrate a racial motivation for his termination, he cannot satisfy the third “but for”
prong and cannot make a prima facie case for his discrimination claim. Further, even if Mr.
Faulk could prove a prima facie case of race discrimination, the Hospital offered a
nondiscriminatory reason for his termination and stated that his contract was terminated
due to the numerous allegations made against him, in order to mitigate risk. Mr. Faulk did
not provide any evidence that this reason was merely a pretext. The Hospital stated that
Mr. Faulk missed a total of 112 days of work while at the Hospital due to five APS
investigations into his behavior. Further, Mr. Faulk was not a full-time employee of the
Hospital, and was thus not entitled to a progressive disciplinary policy. Because Mr. Faulk
did not produce evidence demonstrating a prima facie case of race discrimination, we find
that summary judgment was appropriate.

4
Similarly, the circuit court found that Mr. Faulk failed to meet his burden of
establishing a claim of a hostile work environment. To establish a claim for a racially
hostile work environment, our Supreme Court has set forth that a plaintiff must prove the
following:

To establish a claim for ancestral discrimination, under the West Virginia
Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999) based upon
a hostile or abusive work environment, a plaintiff-employee must prove that:
(1) that the subject conduct was unwelcome; (2) it was based on the ancestry
of the plaintiff; (3) it was sufficiently severe or pervasive to alter the
plaintiff’s conditions of employment; and (4) it was imputable on some
factual basis to the employer.

Syl. Pt. 2, Fairmont Specialty Serv. v. W. Va. Human Rights Comm’n, 206 W. Va. 86, 522
S.E.2d 180 (1999).

Further, our Supreme Court has stated that for a hostile work environment claim to
be actionable, “the offensive environment must be sufficiently severe or pervasive so as to
alter the conditions of employment and create an abusive working environment.” Burke v.
Wetzel Cnty. Comm’n, 240 W. Va. 709, 723, 815 S.E.2d 520, 534 (2018). “[I]solated
comments. . . are insufficient to create a hostile work environment.” Johnson v. Killmer,
219 W. Va. 320, 325, 633 S.E.2d 265, 270 (2006) (per curiam).

Mr. Faulk admitted in a deposition that he was not called derogatory names by his
fellow employees or supervisors, he never felt that he was given assignments based on his
race, and he never felt excluded or discriminated against prior to the rape allegation and
his termination. Further, he did not allege any continuous behavior that was severe enough
to alter the conditions of his work environment or create an abusive environment. In fact,
Mr. Faulk alleged that the Hospital’s sole discriminatory act was its decision to end his
contract. Ultimately, Mr. Faulk failed to produce evidence in support of his claim, as he
did not demonstrate the required elements for a claim of a hostile work environment. Thus,
we find that it was appropriate for the circuit court to grant summary judgment for the
Hospital.

Accordingly, we affirm the Circuit Court of Cabell County’s September 28, 2022,
“Order Granting Defendant’s Motion for Summary Judgment.”

Affirmed.

ISSUED: November 1, 2023

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CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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