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Downs v. Winchester Medical Center

United States District Court, Western District of Virginia, Harrisonburg Division

August 18, 2014

CHRISTY B. DOWNS, Plaintiffs,


Hon. Michael F. Urbanski United States District Judge

This matter is before the court on defendants Valley Health System’s and Valley Regional Enterprises, Inc.’s (collectively “Valley Health”)[1] motion to for summary judgment. Dkt. No. 79. In this matter, plaintiff Christy B. Downs (“Downs”) alleges that Valley Health, her former employer, unlawfully retaliated against her for exercising her rights under the Family Medical and Leave Act, 29 U.S.C. §§ 2601 et seq., (“FMLA”), and discriminated against her in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (“ADA”). For the reasons stated herein, the court will GRANT defendants’ motion.


Downs worked at Valley Health for approximately sixteen years. From 1994-1999 she worked as a secretary. In 1999, she transferred to a new office and became the executive secretary (or “executive assistant”) to Frank Heisey, the President of Valley Regional Enterprises, Inc. Heisey retired in 2008. He was succeeded by Dena Kent in 2009, and Downs then worked as Kent’s executive secretary. However, Heisey temporarily returned to the position when Kent had to take medical leave due to a cancer diagnosis. Kent returned to work full time in November of 2009. Also in 2009, Downs, at Kent’s suggestion, began using FMLA leave due to migraine headaches.

Valley Health paints a picture of Downs as a rather poor employee: frequently late to work, often having unexcused absences (not including her FMLA absences), unable to complete her work in a timely manner, and sometimes making critical errors. Downs, for her part, maintains that she received good performance reviews until Kent grew tired of her increased FLMA usage. As evidence of Kent’s animus towards her, Downs points to her allegations that Kent frequently subjected her to demeaning comments about her “never being” at work.

The evidence reflects that Downs did receive “generally exceeds standards” performance evaluation scores in 2009 and 2010. However, these same evaluations, along with Downs’ corresponding self-evaluations, noted certain performance issues – namely tardiness and unscheduled absences as well as failing to complete certain tasks in a timely manner. See generally, Kent Dep. Exs., Dkt. No. 87-16, at Ex. 13 (Downs 2009 Self-Evaluation); id. at Ex. 19 (Downs 2010 Performance Evaluation); id. at Ex. 20 (Downs 2010 Self-Evaluation); Exs. to Resp. in Opp’n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 2 (Downs 2010 Performance Evaluation); id. at Ex. 8 (Down 2009 Performance Evaluation). In fact, after her 2009 evaluation, Heisey placed Downs on a sixty day “action plan” to improve her performance, which was later extended to a ninety day plan. Kent Dep. Exs., Dkt. No. 87-16, at Ex. 11; Downs Dep. Exs., Dkt. No. 87-18, at Ex. 20.

In August of 2010 Kent gave Downs a written “corrective action” for poor attendance. Kent Dep. Exs., Dkt. No. 87-16, at Ex. 22. As a result, Downs was placed on another ninety day “action plan.” Kent gave Downs a second “correction action” for poor attendance in February of 2011. Id. at Ex. 24. Downs was then “written up” in April of 2011 for not completing work in a timely manner and missed “punches” on her time card, i.e., tardiness. Down Dep. Exs., Dkt. No. 87-18, at Ex. 35. Around March of 2011, Downs’ migraines increased and she consequently increased her usage of FMLA leave. Downs Dep., Dkt. No. 87-17, at 196:24-197:4. In June of 2011, Downs’ received another performance evaluation, which reflected a decrease from her performance in 2009 and 2010. She received only a “meets standards” performance evaluation score and Kent wrote that “overall [Downs] has declined in her performance over the last year in almost all aspects of her job.” Kent Dep. Exs., Dkt. No. 87-16, at Ex. 25.

The penultimate week of June 2011, Downs emailed Elizabeth Savage-Tracy (“Savage”), the Vice President of Human Resources (“HR”). Downs stated that she felt she was being treated unfairly due to her use of FMLA leave and that a request she had made for annual paid leave (“APL”) had been cancelled because of her FMLA usage. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 9. Savage responded via email on June 28, 2011. Id. at Ex. E. In her email, Savage stated that “the FML[A] [leave] you have taken in the past only plays a role in approval or denial of an APL request to the extent that you deplete your paid leave accruals whenever you take FML[A] [leave] and may not have sufficient APL available to cover vacation”[2] or “because prior FML[A] [leave] delayed projects or work such that additional non-FML[A] APL cannot be justified in order to meet the organization’s business needs.” Id. Savage stated “[w]e do not punish employees for taking FML[A], however, that leave can affect [sic] non-FML[A] leave requests under the circumstances described above.” Id. Ultimately, Savage recommended that Kent conditionally approve Downs’ APL request subject to Downs accruing the full amount of APL necessary prior to its start and “getting her work caught up and sustaining her established work standards.” Id.; see also id. at ¶ 11.

In August of 2011 Kent began discussing Downs’ performance with the HR Department. Kent crafted a document outlining what she believed to be Downs’ inadequate job performance entitled “Corrective Action Suspension or Termination???” Kent Dep. Exs., Dkt. No. 87-16, at Ex. 33. Significantly, at this time Kent was also communicating with legal counsel about Downs’ employment situation by phone and by email. Kent Dep., Dkt. No. 87-15, at 250:17-251:9. However, HR never made a decision on what if any action to take based on Kent’s assessment of Downs’ performance. Instead, Downs was terminated after she was confronted about unauthorized access of Kent’s email.

The events regarding Downs’ access of Kent’s email began on August 17, 2011. After Kent had been communicating with legal counsel about Downs’ possible termination via email, Downs sent a rebuttal of her 2011 evaluation and the two corrective actions from August 2010 and February 2011 to Kent and to the HR Department. See Exs. to Resp. in Opp’n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 4. In her rebuttal, she asserted that she understood that her job was in jeopardy, but that she had not any “write ups” for sixteen years at Valley Health and that “when FML[A] [leave] is introduced all of a sudden every little thing is being written up and [she] has performance issues which were not present before.” Id. She also stated that she and Kent could “make a great team if [they] could get past the harsh feelings [her] being out on FML[A] [leave] has caused.” Id.

The next day, Downs spoke with another executive secretary, Patricia Shanholtz. She told Shanholtz that Kent was “talking to an attorney and trying to figure out a way to get rid of her.” Shanholtz Aff., Dkt. No. 87-4, at ¶ 14. Shanholtz believed that Downs had acquired this information by reading Kent’s email and informed Kent of the conversation. Id. Kent testified that she did not understand how this was possible, as she had recently changed her email password. Kent then contacted Savage. Shanholtz, Kent, and Savage investigated Kent’s email settings. They discovered that Downs was also listed as an “owner” of Kent’s Microsoft Outlook email account, giving her unrestricted access to Kent’s email inbox and all of her emails. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 12; Shanholtz Aff., Dkt. No. 87-4, at ¶ 15; Kent Dep., Dkt. No. 87-15, at 202:13- 203:1. That same day, Valley Health’s Information Technology (“IT”) Department investigated Downs’ email usage and found that she had forwarded emails outside its internal network to her personal email addresses and other non-Valley Health email accounts in violation of Valley Health policy. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 13; Huffman Aff., Dkt. No. 87-8, at ¶ 6; Kent Dep., Dkt. No. 87-15, at 208:18-209:17.

The following morning, Downs was called into a meeting with Kent, Savage, and Chuck Walton (“Walton”), the HR representative for Valley Regional Enterprises, Inc. Kent Dep., Dkt. No. 87-15, at 215:1-14. At the meeting, Downs freely admitted accessing Kent’s email inbox “daily” but claimed it was with Kent’s authorization and that it was Kent who, with Downs’ assistance, listed Downs as an additional “owner” of her account when she had returned from medical leave in 2009. Kent denied doing this. Id. at 216:3-18; Downs Dep., Dkt. No. 87-17, at 287:2-288:14. Downs and Kent argued, and Walton informed Downs that she was suspended. Downs Dep., Dkt. No. 87-17, at 289:19-290:7.

Downs submitted her resignation that day, Exs. to Resp. in Opp’n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 5, but Valley Health rejected it by a letter from Savage dated August 23, 2011. See Savage-Tracy Aff., Dkt. No. 87-2, at Ex. F. In relevant part, Downs’ termination letter states that Valley Health is “deeply disappointed that you were reading your supervisor’s email, acting as her surrogate in Outlook without her knowledge, and forwarding Valley Health information to your multiple personal email address.” Id. The letter notes that Kent “disputes that she knew that you had access to her Outlook account, ” but continues on to say:

Regardless of how you accessed these emails, as soon as you saw one email related to your own personal personnel situation or from which you would know that your supervisor was not aware that you had this access, you had an ethical and professional obligation to go to her and let her know that you had access to these confidential emails. Your failure to do so is inexcusable and . . . surreptitiously reviewing these emails and forwarding Valley Health information outside of its secure network to your multiple personal email addresses plainly calls your character into question.


Downs continues to strongly assert that Kent had given her access to her inbox and that, furthermore, her ability to access to Kent’s email inbox was widely known by other Valley Health employees and was in fact essential to her job as Kent’s executive secretary. Indeed, she repeatedly made this assertion, at times going into great detail, throughout her deposition. See, e.g., Downs Dep., Dkt. No. 87-17, at 166:4-167:5; id. at 168:17-24; id. at 172:4-9; id. at 172:13-25; id. at 183:23-25; id. at 184:1-6; id. at 233:11-15; id. at 234:8-14; id. at 235:14-20.[3] Valley Health vehemently denies that Kent ever gave Downs access to her email account, an assertion echoed by Kent at her deposition. Kent Dep., Dkt. No. 87-15, at 216:11 (“I did not give [Downs] inbox access ever.”); see also id. at 204:8-19; id. at 207:7-15; id. at 229:18-20.

In any event, it is undisputed that Downs was not permitted to access emails in Kent’s inbox regarding her own personal personnel situation; it is likewise undisputed that Downs was obligated to inform Kent if she did in fact access such an email. Downs Dep., Dkt. No. 87-17, at 297:4-16.


Pursuant to Federal Rule of Civil Procedure 56(a), the court must “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, “[i]t is an ‘axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam)). Moreover, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .” Anderson, 477 U.S. at 255. However, the non-moving party “must set forth specific facts that go beyond the ‘mere existence of a scintilla of evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that “there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party.” Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249).

The FMLA provides both substantive, i.e., prescriptive rights, along with proscriptive protections against retaliation for the exercise of such rights. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006). Claims alleging violations of proscriptive FMLA rights are known as “retaliation” or “discrimination” claims. Id. “To succeed on an FMLA retaliation claim, a plaintiff must prove: ‘(1) that [s]he engaged in protected activity, (2) that the employer took adverse action against [her], and (3) that the adverse action was causally connected to the plaintiff’s protected activity.’” Greene v. YRC, Inc., No. CIV.A. MJG-13-0653, 2013 WL 6537742, at *8 (D. Md. Dec. 12, 2013) (quoting Yashenko, 446 F.3d at 551). An FMLA retaliation claim also requires proof retaliatory intent. Bosse v. Baltimore Cnty., 692 F.Supp.2d 574, 588 (D. Md. 2010) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)); see also Edusei v. Adventist Healthcare, Inc., No. CIV.A. DKC 13-0157, 2014 WL 3345051, at *5 (D. Md. July 7, 2014) (quoting Bosse, 692 F.Supp.2d at 588) (same); Ainsworth v. Loudon Cnty. Sch. Bd., 851 F.Supp.2d 963, 977 (E.D. Va. 2012) (quoting Bosse, 692 F.Supp.2d at 588) (same). To succeed on her ADA discrimination claim, Downs “must prove that: (1) she was disabled as defined in the ADA; (2) she was a ‘qualified individual’ for the employment in question; and (3) her employer discharged her or took other adverse employment action against her because of her disability. Shively v. Henry Cnty., Va., No. 4:10-CV-00053, 2011 WL 3799548, at *4 (W.D. Va. Aug. 29, 2011) (citing E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)).

Both FLMA retaliation claims and ADA discrimination claims are analyzed under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792. See Perry v. Computer Sciences Corp., 429 F.App'x 218, 219-20 (4th Cir. 2011) (unpublished per curiam opinion) (citing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, 53 F.3d 55, 57-58 (4th Cir. 1995)) (holding that the McDonnell Douglas framework applies to ADA discrimination and retaliation claims); Yashenko, 446 F.3d at 551 (holding that the McDonnell Douglas framework applies to FMLA retaliation claims).

“Under the McDonnell Douglas proof scheme, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence.” Ennis, 53 F.3d at 58. “If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory explanation which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Id. “If the defendant meets this burden of production, the presumption created by the prima facie case ‘drops out of the picture, ’ and the plaintiff bears the ultimate burden of proving that she has been the victim of intentional discrimination.” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).

Bennett v. Kaiser Permanente, 931 F.Supp.2d 697, 713-14 ...

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