CHARLESTON — The West Virginia Intermediate Court of Appeals found that a woman did not establish discrimination and it affirmed a lower court decision.
Cindy Linger-Long is appealing the Grant Circuit Court decision to grant summary judgment against her in her workplace discrimination and retaliatory discharge case against her former employer, Robert W. Milvet and the Board of Trustees of Grant Memorial Hospital Trust Foundation Inc. The court, in its Oct. 12, 2022, order, found no substantial question of law and no prejudicial error, leading to this appeal, according to the Nov. 1 decision by the West Virginia Intermediate Court of Appeals.
The decision was concurred in by Chief Judge Dan Greear and Judge Charles Lorensen. Judge Thomas Scarr also concurred in the decision but chose to write separately.
Linger-Long began her employment at GMH in 2014, transitioning from her previous role at the West Virginia Department of Health and Human Resources. Her duties at GMH included gathering information for billing purposes, completing forms and ensuring compliance with Medicare and other regulations.
The crux of the dispute involves Linger-Long's alleged advice to patients not to sign Advance Beneficiary Notice of Non-Coverage (ABN) forms, potentially avoiding personal responsibility for bills not covered by Medicare.
GMH received reports from coworkers that Linger-Long was advising against signing ABN forms, and she allegedly requested reprocessing a bill for her mother's financial benefit. GMH argued that these actions violated her duty of loyalty, were unethical and could lead to liability.
Milvet, GMH's CEO, decided to terminate her employment in May 2019.
Linger-Long filed a civil suit against GMH, alleging age and/or gender discrimination, as well as retaliatory discharge due to a request for FMLA paperwork. The circuit court granted GMH's motion for summary judgment, concluding that Linger-Long failed to establish a prima facie case for discrimination or retaliation and that GMH's reasons for termination were legitimate.
The appellate court affirmed the circuit court's decision. The court found that Linger-Long failed to provide evidence supporting her claims of age and gender discrimination, as well as retaliatory discharge.
To establish a prima facie case for age discrimination, a plaintiff may present evidence that a substantially younger employee received more favorable treatment for similar conduct. However, the court notes that Linger-Long's replacement was five years her senior. Similarly, for gender discrimination, Linger-Long failed to show that her sex had any effect on GMH's decision to terminate her, as her replacement was also female.
Regarding the FMLA-based retaliatory discharge claim, the court found that Linger-Long did not avail herself of any FMLA protection. Although she requested FMLA paperwork, she never filled out the forms or requested FMLA leave. As a result, GMH did not deny her any FMLA benefits.
The court concluded that Linger-Long failed to produce evidence to support her discrimination and retaliation claims, and therefore, she did not make a prima facie case. GMH, on the other hand, provided a legitimate, nondiscriminatory reason for her termination – reported misconduct. The court finds no error in the circuit court's grant of summary judgment and affirms its decision.
In his concurring opinion, Scarr wrote that while he concurred with the majority’s opinion, he wrote separately to raise concern regarding the aspect of advocacy in the case.
Scarr emphasizes the ethical duty of lawyers to zealously represent their clients and highlights the importance of accurate representation of facts, evidence, and records. The concurrence points out a specific instance where counsel for the petitioner allegedly made an unsupported claim, stating that the respondents admitted several times that the petitioner was too old, creating an inference of age being a motivating factor in the termination.
Scarr asserts that such an allegation was not supported by the record and was discredited by opposing counsel as "blatantly false."
Scarr underscores the difference between advocacy and misrepresenting evidence, emphasizing that mischaracterizing facts is unacceptable. He notes the lack of accountability or explanation for the alleged inaccuracy, highlighting the potential impact on counsel's credibility and the need for judges to address such behavior to maintain the integrity of the legal profession and the court system.
Attorneys for the parties declined to comment.
West Virginia Intermediate Court of Appeals case number: 22-ICA-203
