Minor Inconsistencies and Intervening Misconduct Defeat FMLA Pretext; WVHRA Disability Requires Substantial Limitation at the Time of the Adverse Action

1. Introduction

Dominique Spatafore, a long-time City of Clarksburg employee, took approved leave under the Family and Medical Leave Act (FMLA) in August 2021 to treat an eating disorder and returned to work in September. After returning, she was placed on a performance improvement program, later transferred into a Finance Department account clerk role (same pay/benefits except a cell phone stipend), and, in the weeks before her termination, repeatedly raised complaints outside internal channels—messaging the Mayor’s wife, emailing the Mayor and the entire City Council, and posting criticisms (including an internal memorandum) on Facebook.

The City terminated her on December 20, 2021, citing “issues including insubordination, insolence, and unsolicited distribution of internal documents.” Spatafore sued, alleging (as relevant on appeal) (1) FMLA retaliation and (2) disability discrimination under the West Virginia Human Rights Act (WVHRA). The district court granted summary judgment to the City. On appeal, the Fourth Circuit affirmed on both claims, while a separate opinion by Judge Harris would have sent the FMLA retaliation claim to a jury.

2. Summary of the Opinion

Majority (Gregory, J.)

• FMLA retaliation: Assuming without deciding that Spatafore made a prima facie case, the court held she failed to create a triable issue that the City’s stated reasons were pretextual. The record “plainly” showed multiple policy violations and public/social-media complaints immediately preceding termination.
• WVHRA disability discrimination: Spatafore did not qualify as “disabled” under the WVHRA because she did not show her impairment “substantially limit[ed]” a major life activity at the time of termination; her prior need for temporary leave did not, by itself, establish disability status.

Separate Opinion (Harris, J., concurring in part and dissenting in part)

• Agreed on the WVHRA issue.
• Disagreed on FMLA retaliation: Judge Harris argued that inconsistencies in the City’s explanations and evidence of deviation from progressive discipline could allow a reasonable jury to find pretext under Rule 56, citing Hollis v. Morgan State Univ. and E.E.O.C. v. Sears Roebuck & Co.

3. Analysis

A. Precedents Cited

1) Summary judgment framework

• Calderon v. GEICO General Ins. Co. (de novo review of summary judgment): sets the appellate posture—no deference to the district court’s legal conclusions.
• Fed. R. Civ. P. 56(a): summary judgment is appropriate when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law.
• Vannoy v. Fed. Reserve Bank of Richmond: reinforces that evidence is viewed in the light most favorable to the non-movant and supplies the articulation of the prima facie elements in an FMLA retaliation claim (protected activity, adverse action, causal connection).

2) FMLA retaliation and the McDonnell Douglas framework

• Yashenko v. Harrah's NC Casino Co.: anchors the proposition that FMLA retaliation claims are analyzed like Title VII retaliation claims using McDonnell Douglas.
• McDonnell Douglas Corp. v. Green: provides the burden-shifting structure (prima facie case → employer’s legitimate reason → plaintiff’s showing of pretext).
• Hannah P. v. Coats: cited for the employer’s burden at step two—producing a legitimate nonretaliatory reason.
• Nichols v. Ashland Hosp. Corp.: places the burden at step three on the plaintiff to establish pretext.
• Dugan v. Albemarle Cnty. Sch. Bd.: describes how pretext may be shown—by demonstrating the employer’s explanation is “unworthy of credence” or by other circumstantial evidence of intentional discrimination.
• Hawkins v. PepsiCo, Inc.: emphasizes the “not our province” principle—courts do not decide whether the employer’s reason was wise/fair/correct so long as it truly was the reason.

3) Pretext, shifting explanations, and the “threshold” of evidence

• Sharif v. United Airlines: used to distinguish cases where little evidence of wrongdoing might suggest pretext from cases where the evidence of misconduct “plainly exceeds” that threshold.
• Haynes v. Waste Connections, Inc.: key comparator for inconsistent rationales—pretext may be inferable where there is a “substantial change” in the employer’s stated reason, such as an “entirely different reason for the termination than was offered initially.” The majority held the City’s inconsistencies were “minor,” not a substantial shift.

4) WVHRA disability status and timing of limitation

• Woods v. Jefferds Corp.: confirms WVHRA disability discrimination claims proceed under a McDonnell Douglas-like framework.
• Miller v. Terramite Corp.: central to the majority’s holding: even serious conditions (knee injury, diabetes, depression) did not establish disability under WVHRA where the plaintiff was under no medical restrictions at layoff and lacked evidence of substantial limitation of a major life activity.
• Dickerson v. W. Va. St. Treasurer's Office and Goddard v. Greenbrier Hotel Corp.: West Virginia authorities reinforcing that temporary illness-related absences do not necessarily establish disability once the illness no longer limits job functions.

5) Authorities emphasized in the partial dissent

• Hollis v. Morgan State Univ.: invoked for a strict Rule 56 approach—if evidence could allow a reasonable jury to infer pretext, summary judgment is inappropriate; also referenced for the notion that deviation from “internal policies” and “normal procedural sequence” can be pretext evidence.
• E.E.O.C. v. Sears Roebuck & Co.: cited for the inference of pretext when an employer offers “different justifications at different times.”
• Reeves v. Sanderson Plumbing Prods., Inc.: cited for the requirement that courts draw reasonable inferences for the nonmovant at summary judgment (and not weigh credibility).
• Holloway v. Maryland: used to support the idea that post-leave events can “bridge” a temporal gap between protected activity and termination.
• Wannamaker-Amos v. Purem Novi, Inc.: cited for the proposition that holding an employee to a “higher standard” can evidence discriminatory animus.

B. Legal Reasoning

1) FMLA retaliation: why the majority found no triable pretext issue

The majority effectively assumed the first two McDonnell Douglas steps were satisfied (or at least not dispositive) and focused on step three: whether a reasonable jury could find the City’s stated reasons were a pretext for FMLA retaliation.

(i) Intervening misconduct as a nonretaliatory explanation.
The court treated the timing and nature of Spatafore’s conduct—messaging the Mayor’s wife, emailing the Mayor and City Council in contravention of the handbook grievance procedure, and posting critical comments and internal memoranda on a public Facebook page—as a strong, concrete, and temporally immediate basis for termination. This “plainly exceed[ed]” the kind of minimal wrongdoing evidence that can leave room for a pretext inference (Sharif v. United Airlines).

(ii) Inconsistent explanations: “minor inconsistencies” versus “substantial change.”
Spatafore argued the City’s inability to define terms like “insubordination” and “insolence,” and its variable emphasis on whether the Facebook information was “false,” suggested shifting rationales. The majority acknowledged imperfections but held they did not rise to the kind of “substantial change” found probative in Haynes v. Waste Connections, Inc.. The touchstone was continuity: the City repeatedly pointed to the same core events (the Marino messages, Council email, Facebook posts) from the termination letter through litigation.

(iii) Progressive discipline: handbook discretion and “fireable offenses.”
The majority rejected the argument that the City violated progressive discipline. It relied on the handbook’s inclusion of “insubordination” as a fireable offense and its definition (including acting “contradictory to the spirit of an order”), concluding that bypassing supervisors and the grievance process could be treated as an immediately terminable violation.

(iv) References to FMLA leave at the termination meeting.
Spatafore relied on evidence that her FMLA leave was discussed at the meeting where termination was decided. The majority reframed that reference as litigation-risk awareness, not retaliatory motive: the City Attorney warned about the possibility of a retaliation suit because termination occurred soon after leave—not that leave was the reason for termination.

(v) Termination during COVID leave.
The majority found little probative value in the fact that she was fired while out with COVID, particularly because the complained-of emails and posts occurred during the COVID absence and immediately preceded termination—supporting causation tied to misconduct, not the earlier FMLA leave.

2) The partial dissent’s pretext theory: why a jury could infer retaliation

Judge Harris would have allowed the FMLA claim to proceed because, in her view, the record could support competing inferences that must be resolved by a jury under Rule 56.

• Shifting reasons and lack of a stable account: The dissent highlighted variations in which conduct was emphasized (grievance-policy violation, “false” Facebook information, Marino contacts) and noted that City witnesses appeared to disagree on what “really” motivated the termination, invoking E.E.O.C. v. Sears Roebuck & Co..
• Deviation from typical progressive discipline: The dissent stressed testimony suggesting the City “typically” used coaching and warnings before termination, and that Spatafore received none in the three days between the cited conduct and her firing—an alleged procedural deviation supporting pretext under Hollis v. Morgan State Univ..
• Bridge between leave and termination: The dissent pointed to evidence of immediate post-leave escalation (performance improvement plan; alleged unrealistic requirements; threat of termination) as potential context connecting the protected leave to the later termination (Holloway v. Maryland), and argued that being held to an unusually high standard can suggest animus (Wannamaker-Amos v. Purem Novi, Inc.).

3) WVHRA disability discrimination: disability must substantially limit at the time of termination

The majority’s WVHRA analysis turns on statutory definition and timing. Under W. Va. Code § 16B-17-3, “disability” requires a mental or physical impairment that “substantially limits” major life activities (or a record of such impairment, or being regarded as having one). The court held that taking six weeks of FMLA leave, without evidence of continuing substantial limitation at termination, does not establish disability status.

Relying on Miller v. Terramite Corp. and West Virginia decisions (Dickerson v. W. Va. St. Treasurer's Office; Goddard v. Greenbrier Hotel Corp.), the panel treated temporary impairment/temporary absence as insufficient once the employee returns able to perform job functions without substantial limitation evidence.

C. Impact

• FMLA retaliation litigation (Fourth Circuit, persuasive): Even close temporal proximity between protected leave and termination may be outweighed—at summary judgment—by strong, documented, and temporally immediate evidence of intervening misconduct, especially where the employer consistently points to the same core events.
• Pretext via “shifting explanations”: The majority narrows the practical utility of “inconsistency” arguments by framing them as non-dispositive unless they resemble the “substantial change” scenario in Haynes v. Waste Connections, Inc.. The dissent, by contrast, signals continued receptivity to Sears Roebuck-style arguments where the record shows witness-by-witness divergence and litigation-stage refinements.
• Internal-policy deviations: The split highlights a recurring summary-judgment fault line: whether handbook language authorizing termination controls (majority) or whether testimony about “how discipline is actually done” can create a jury issue (dissent, relying on Hollis v. Morgan State Univ.).
• WVHRA disability claims: Plaintiffs who relied on medical leave should expect courts to demand evidence of substantial limitation (or being “regarded as” substantially limited) at or near the time of the adverse action—mere historical impairment and return-to-work status may defeat disability status as a threshold matter.

4. Complex Concepts Simplified

• Summary judgment (Rule 56): A case ends without trial if, even taking the employee’s evidence as true and drawing reasonable inferences in the employee’s favor, no reasonable jury could find for the employee on a material point.
• McDonnell Douglas burden-shifting:
  1. Prima facie case: the employee shows basic facts suggesting retaliation/discrimination.
  2. Legitimate reason: the employer articulates a lawful reason for the action (e.g., misconduct).
  3. Pretext: the employee must show the employer’s reason is not the true reason—i.e., it is a cover for retaliation/discrimination.
• Pretext: Not “the employer was wrong,” but “the employer didn’t actually believe its stated reason or wouldn’t have acted on it absent retaliatory motive.” Evidence may include shifting explanations, departures from ordinary procedures, unequal standards, or suspicious timing when paired with other facts.
• “Substantial limitation” (WVHRA): A meaningful restriction on major life activities (like working, caring for oneself, learning). Temporary conditions may not qualify if they are resolved and no longer limit activities when the employment decision is made.

5. Conclusion

Dominique Spatafore v. City of Clarksburg underscores two practical rules with immediate litigation consequences. First, for FMLA retaliation claims, an employer’s contemporaneously documented, policy-based justification tied to intervening misconduct can defeat a pretext showing at summary judgment, and minor variations in wording will not necessarily amount to the “substantial change” that signals pretext under Haynes v. Waste Connections, Inc.. Second, for WVHRA disability discrimination, a past medical condition requiring leave does not itself establish “disability” absent evidence that the impairment substantially limited major life activities at the time of the adverse action (or that the employee was regarded as so limited), consistent with Miller v. Terramite Corp., Dickerson v. W. Va. St. Treasurer's Office, and Goddard v. Greenbrier Hotel Corp..

The partial dissent highlights that, in close cases, testimony about actual disciplinary practice and genuinely divergent explanations can create a jury question under Rule 56. The majority, however, treated the evidentiary record of policy-violating communications and public posts as sufficiently strong and consistent to foreclose a reasonable inference of retaliatory motive.