Requesting FMLA Paperwork Is Not Protected Activity: West Virginia Supreme Court clarifies Harless retaliation and reinforces WVHRA prima facie and pretext standards

Introduction

In Cindy Linger-Long v. Robert W. Milvet and the Board of Trustees of Grant Memorial Hospital Trust Foundation, Inc., the Supreme Court of Appeals of West Virginia issued a memorandum decision affirming summary judgment for the employer on claims of age and sex discrimination under the West Virginia Human Rights Act (WVHRA) and a Harless wrongful discharge claim premised on retaliation for Family and Medical Leave Act (FMLA) activity.

The petitioner, a 53-year-old female enrollment specialist/financial counselor at Grant Memorial Hospital Trust Foundation, alleged she was terminated in May 2019 because of her age and sex, and in retaliation after she requested FMLA paperwork following her mother’s stroke. The employer countered that she was discharged for misconduct: advising patients not to sign advance beneficiary notices (ABNs) and asking a coworker to reprocess a bill in a way perceived to benefit her family. The circuit court granted summary judgment; the Intermediate Court of Appeals (ICA) affirmed; and the Supreme Court, applying de novo review, likewise affirmed under Rule 21(c), finding no substantial question of law and no prejudicial error.

This decision is significant for two reasons. First, it clarifies that merely requesting FMLA paperwork—without submitting it or taking leave—does not constitute protected activity for purposes of a Harless-based retaliation claim. Second, it reinforces settled WVHRA standards: replacement by an older employee of the same sex, absence of comparator evidence, and a legitimate investigative response to alleged misconduct collectively undermine the prima facie inference and pretext showing necessary to survive summary judgment.

Summary of the Opinion

The Court affirmed summary judgment against WVHRA age and sex discrimination claims because the petitioner failed to establish a prima facie inference that her protected status motivated the termination. She was replaced by an older female with similar qualifications; there was no evidence of bias; and no similarly situated “substantially younger” comparator received more favorable treatment.
Even assuming a prima facie showing, the employer articulated legitimate, nondiscriminatory reasons—violation of ABN procedures and billing-related misconduct—and the petitioner presented only speculation, not evidence of pretext.
The Harless retaliatory discharge theory premised on FMLA failed at the threshold. The Court held the petitioner did not engage in protected activity by merely requesting FMLA paperwork, never submitted the forms or took leave, and there was no evidence the decision-maker knew about the paperwork request. Temporal proximity alone—especially where the employee never exercised FMLA rights—did not establish causation.
De novo review of summary judgment, together with the record’s lack of non-speculative evidence, warranted affirmance.

Analysis

Precedents Cited and Their Role

Summary judgment standards were framed by:

Moorhead v. W. Va. Army Nat’l Guard, 251 W. Va. 600, 915 S.E.2d 378 (2025) (de novo review of summary judgment).
W. Va. R. Civ. P. 56(a) and Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (summary judgment appropriate if no genuine issue of material fact and the nonmovant fails to make a sufficient showing on an essential element).
Knotts v. Grafton City Hosp., 237 W. Va. 169, 786 S.E.2d 188 (2016) (conclusory allegations, improbable inferences, and unsupported speculation do not defeat summary judgment).

The WVHRA discrimination framework was anchored in:

Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986), Syl. Pt. 3 (prima facie case requires proof of protected class, adverse action, and that but for protected status the adverse decision would not have occurred).
Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995), Syl. Pt. 2 (third prong is a threshold inference of discrimination); also recognizing pretext may be shown by direct or circumstantial evidence of falsity or discrimination.
Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983), Syl. Pt. 3 (adopting McDonnell Douglas burden-shifting under the WVHRA).
Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 479 S.E.2d 561 (1996) (to reach a jury, the employee must present sufficient evidence that the employer’s explanation is pretextual).
Johnson v. Killmer, 219 W. Va. 320, 633 S.E.2d 265 (2006) (being over 40 alone is insufficient; a causal link to age is required).
Knotts, 237 W. Va. at 171, 786 S.E.2d at 190, Syl. Pts. 4–5 (plaintiff may show inference of age bias by replacement with a substantially younger employee, or more favorable treatment of a substantially younger comparator engaged in similar conduct).
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (salary or seniority motivations, even if correlated with age, are not, without more, “age” motivations).

The Harless wrongful discharge and FMLA retaliation framework was tied to:

Harless v. First Nat’l Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978) (wrongful discharge when employer acts contrary to substantial public policy).
Swears v. R.M. Roach & Sons, Inc., 225 W. Va. 699, 696 S.E.2d 1 (2010) (four elements of Harless claim: clear public policy, jeopardy, motivation, and lack of overriding legitimate justification).
Cordle v. General Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984), Syl. Pt. 1 (existence of public policy is a question of law).
Burke v. Wetzel Cnty. Comm’n, 240 W. Va. 709, 815 S.E.2d 520 (2018) (FMLA embodies substantial public policy; employers may not interfere with, restrain, or deny FMLA rights).
Feliciano v. 7-Eleven, Inc., 210 W. Va. 740, 559 S.E.2d 713 (2001) (Harless cause of action exists where employer acts contrary to substantial public policy in effectuating the termination).
Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998) (prima facie FMLA retaliation requires protected activity, adverse action, and causal connection).
Mayo v. St. Mary’s Med. Ctr., Inc., No. 16-0245, 2017 WL 1348514 (W. Va. Apr. 7, 2017) (mem.) (plaintiff must show FMLA rights were a substantial or motivating factor for termination).
Powell v. Wyoming Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717 (1991), Syl. Pt. 2 (once a prima facie case is shown, employer must present a legitimate nonpretextual reason; employee may then show pretext).

Statutory context was noted by the Court’s footnote acknowledging the WVHRA’s recodification from W. Va. Code §§ 5-11-1 to -20 to W. Va. Code §§ 16B-17-1 to -20 (2024), while applying the version in effect at the time of the conduct.

Legal Reasoning

1) WVHRA Age and Sex Discrimination

The Court accepted that the petitioner satisfied the first two Conaway prongs: she was a member of protected classes (female and age 53), and she suffered an adverse employment action (termination). The case turned on the third prong—whether there was an inference that, but for her protected status, the termination would not have occurred.

The Court emphasized multiple facts that defeated this inference:

Replacement by a 58-year-old female with similar qualifications cut against an age or sex-based motive.
No evidence that management harbored bias against older workers or women; the employer’s workforce was “an overwhelming majority” female.
No evidence that substantially younger comparators who engaged in “the same or similar conduct” received more favorable treatment (Knotts).

The employer articulated legitimate reasons: reports that the petitioner advised patients not to sign Medicare/Medicaid ABNs (exposing the hospital to unreimbursed costs) and that she asked a coworker to reprocess a bill in a manner perceived to benefit her family. The hospital promptly investigated (within days of the reports) and terminated on May 21, 2019.

On pretext, the Court held the petitioner offered only speculation. Her suggestion that GMH discharged her to save money—even if true—does not equal age bias under Hazen Paper. Her assertion that a male supervisor disfavors women who challenge authority was unsupported; she admitted she did not experience a hostile work environment. Barefoot and Skaggs require more than conjecture; the employee must produce evidence that the employer’s stated reasons are false or that discrimination more likely motivated the decision.

2) Harless Wrongful Discharge Based on FMLA “Retaliation”

The Court reaffirmed that the FMLA reflects West Virginia’s substantial public policy (Burke; Feliciano). It applied the familiar retaliation structure from Cline and Powell: protected activity, adverse action, and causation, with burden-shifting to a legitimate nonretaliatory reason and a pretext inquiry.

The petitioner’s theory failed at the first and third steps:

No protected activity. She requested FMLA paperwork but never submitted the forms or took FMLA leave. The Court treated a mere paperwork request as insufficient to qualify as protected activity under a Harless/FMLA retaliation theory.
No causation. The decision-maker who effectuated the termination had no knowledge of the paperwork request. Without knowledge, an adverse action cannot be “because of” protected conduct. Temporal proximity alone, especially where the employee never actually exercised FMLA rights, did not create an inference of retaliation. Moreover, there was an intervening legitimate reason: reports of misconduct and an immediate investigation.

Even if a prima facie showing had been made, the employer’s legitimate nonretaliatory reasons (the ABN and billing concerns) were unrebutted by evidence of pretext.

3) The Summary Judgment Lens

Applying Moorhead, Painter, and Rule 56(a), the Court reiterated that when the nonmoving party relies on conclusory allegations and unsupported speculation (Knotts), summary judgment is appropriate. The record, taken as a whole, could not lead a rational trier of fact to find for the petitioner on essential elements she bore the burden to prove, including inference of discrimination, comparator treatment, protected FMLA activity, and causation.

Impact and Prospective Significance

A. FMLA/Harless Retaliation in West Virginia

Clarifies the threshold: requesting FMLA paperwork—without submitting it or actually taking leave—does not constitute protected activity for a Harless retaliation claim predicated on FMLA policy. Employees must manifest an exercise (or attempted exercise) of an FMLA right, not merely information-gathering.
Reinforces the knowledge requirement: absent evidence that the decision-maker knew about the protected activity, causation fails. This aligns with common-sense causation principles—an employer cannot retaliate for conduct of which it is unaware.
Temporal proximity is not a cure-all: proximity without protected activity and decision-maker knowledge, particularly where there is intervening misconduct and a documented investigation, will not support an inference sufficient to survive summary judgment.

B. WVHRA Discrimination Litigation

Comparator rigor: Plaintiffs must identify substantially younger or differently situated comparators who engaged in similar conduct and were treated more favorably, or provide other evidence linking adverse action to protected status.
Replacement characteristics matter: Being replaced by an older employee of the same sex significantly undercuts an inference of age or sex discrimination at the prima facie stage, though it is not alone dispositive in every case.
Pretext proof must be evidence-based: Speculation about cost-saving motives or generalized dislike of a protected group—without concrete facts (e.g., discriminatory remarks, inconsistent explanations, policy deviations, or statistical disparities)—is insufficient.

C. Employer Compliance and Litigation Strategy

Document investigations and reasons: The rapid, documented response to specific misconduct reports supported a legitimate, non-discriminatory/non-retaliatory rationale.
Decision-maker knowledge controls: Routing sensitive information through need-to-know channels and documenting who knew what, and when, may be decisive in defeating retaliation claims.
FMLA administration: Providing paperwork promptly and tracking whether employees actually request or take leave helps distinguish between inquiry and protected exercise of rights.

D. Procedural Posture

Memorandum decision under Rule 21(c): While not announcing a new broad doctrinal shift, the decision is a clear application and practical clarification of existing standards, and will be persuasive in similar future disputes over the sufficiency of prima facie and pretext showings and the contours of FMLA-based Harless claims.

Complex Concepts Simplified

Advance Beneficiary Notice (ABN): A Medicare/Medicaid form warning a patient that certain services may not be covered and that the patient may be financially responsible. If a patient does not sign an ABN and the service is not covered, the provider generally cannot charge the patient. Advising patients not to sign can expose the provider to non-reimbursement.
Prima facie case: The minimal initial showing needed to raise an inference of unlawful discrimination or retaliation, shifting the burden to the employer to articulate a legitimate reason.
McDonnell Douglas burden-shifting: A three-step framework—(1) employee establishes a prima facie case; (2) employer articulates a legitimate reason; (3) employee shows that reason is pretext (a cover) for discrimination.
Pretext: Evidence that the employer’s stated reason is false or that discrimination more likely motivated the decision; may be shown via inconsistencies, implausibilities, comparator evidence, or discriminatory remarks.
Comparator evidence: Showing that similarly situated employees outside the protected class (e.g., substantially younger) engaged in similar conduct but were treated more favorably.
Temporal proximity: Closeness in time between the protected activity and the adverse action. It can support causation, but rarely suffices by itself, especially if the decision-maker lacked knowledge or there are intervening legitimate reasons.
Harless claim: A West Virginia common-law wrongful discharge action where an employer terminates an at-will employee in contravention of substantial public policy (here, policy reflected in the FMLA).
Protected activity (FMLA): Exercising or attempting to exercise rights under the FMLA (e.g., requesting leave or submitting certification). Merely requesting paperwork, as held here, is not enough.

Conclusion

The Supreme Court of Appeals of West Virginia’s memorandum decision in Linger-Long reinforces fundamental WVHRA and retaliation principles at the summary judgment stage. On the discrimination claims, the petitioner failed to cross the low—but real—threshold to raise an inference that age or sex motivated her discharge, particularly where she was replaced by an older woman, the workforce was predominantly female, and no younger comparators received better treatment for similar conduct. Even if the prima facie burden had been met, the employer’s prompt investigation and documented, non-discriminatory rationale went unrebutted by evidence of pretext.

On the Harless retaliation theory, the Court clarified the boundary between inquiry and protected activity: requesting FMLA paperwork, without more, is not protected activity. Absent the exercise (or attempted exercise) of an FMLA right, and in the absence of decision-maker knowledge, temporal proximity to the discharge does not establish causation—especially where an intervening investigation and legitimate business concerns are present.

Practically, the decision underscores that plaintiffs must marshal concrete evidence of discriminatory or retaliatory motive—comparators, inconsistent explanations, remarks, or procedural irregularities—rather than speculation. Employers, conversely, should document the timing, scope, and reasons for employment decisions, maintain clear decision-maker lines, and handle FMLA administration with precision. The Court’s affirmance, though in memorandum form, provides a clear, useful roadmap for litigants and courts applying WVHRA and Harless standards in cases involving alleged discrimination and FMLA-related retaliation.