HUNTINGTON – A federal judge has granted a partial motion to dismiss in a lawsuit against Autism Services Center alleging retaliatory discharge.
“Pending before the court is defendant’s partial motion to dismiss,” District Judge Robert C. Chambers wrote. “Defendant moves to dismiss Count II and III of plaintiff’s complaint ...”
Counts II and III of Whitley Hundley’s complaint allege tortious interference and violation of public policy constituting a retaliatory discharge, according to the memorandum opinion and order.
“Where plaintiff has failed to identify even the most basic facts of her harm, her claim for tortious interference does not rise ‘above the speculative level,’” Chambers wrote. “Accordingly … the court believes dismissal of plaintiff’s tortious interference claim is appropriate.”
Chambers found that the plaintiff also failed to establish a substantial public policy, which made dismissal of that count also appropriate.
Hundley began working for the defendant on Oct. 19, 2014, according to a complaint filed July 20 in Cabell Circuit Court. It was later removed to federal court on Aug. 14.
Hundley claimed during her initial period of employment, she became pregnant and left her position with the defendant in late January or early February 2015. Her supervisor told her she was leaving in good standing and would be welcomed back after the birth of her daughter.
The plaintiff remained off work for a period of approximately eight months during which time she gave birth to her daughter and resumed her employment on Oct. 27, 2015, according to the suit.
Hundley claimed in July 2016, her daughter was diagnosed with multiple serious conditions for which she receives continuing treatment and supervision by a healthcare provider.
Despite being a single mother, Hundley worked hard to cover shifts when she was asked, often requiring her to find last-minute child care or bring her daughter to work, according to the suit.
Hundley claimed she periodically requested and required time off from work to assist in caring for her daughter’s serious health conditions, including her daughter’s doctor’s appointments and the defendant did not, at any time following her notice of her need for leave, provide her with notice of her rights or eligibility for FMLA leave to care for her daughter.
In late summer or early fall of 2016, Hundley obtained a second job at Autism Management in Cabell County and informed the defendant that she needed fewer hours in order to work her second job, according to the suit.
Hundley claimed on Oct. 5, 2016, her supervisor told her that he did not care if she had another job, that she was “unloyal” and that she “needed to figure it out.”
The plaintiff believed her supervisor’s comments were a threat that he would terminated her employment or otherwise retaliate against her because she had a second job, according to the suit.
Hundley claimed on Nov. 26, 2016, although she was not scheduled to work, Hundley was called to one of the defendant’s homes by co-workers who required her assistance in caring for a client, as she was one of two individuals with whom the client cooperated.
Upon her arrival, Hundley observed the client was in the kitchen visibly upset and advised the client to lie down in his room, try to calm down and that she would be there shortly to talk to him. She spoke with the client and then reported what she was told to her client’s father, according to the suit.
Hundley claimed she then requested and received approval to give the client his required medication early so that he would not be disturbed later, which she worried would cause him to become more agitated. The client eventually calmed down and Hundley left the residence.
On Nov. 28, 2016, Hundley worked her scheduled shift with the same client and, while at work, she was called into her supervisor’s office and the defendant alleged that she had yelled and cursed at a client living in a group home and placed her on suspension, according to the suit.
Hundley claimed the next day, the defendant terminated her employment based on the alleged inappropriate interaction and/or verbal abuse.
The defendant retaliated against Hundley for obtaining a second job and violated the Family and Medical Leave Act, according to the suit.
Hundley is seeking compensatory and punitive damages. She is being represented by Hoyt Glazer of the Law Office of Hoyt Glazer.
U.S. District Court for the Southern District of West Virginia case number: 3:17-cv-03818