STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Martha Knotts, FILED 

Plaintiff Below, Petitioner August 28, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0752 (Taylor County 12-C-66) OF WEST VIRGINIA 

Grafton City Hospital, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Martha Knotts, by counsel Allan N. Karlin and Jane Peak, appeals the Circuit 

Court of Taylor County’s July 8, 2014, order granting respondent summary judgment and 

dismissing petitioner’s claims for wrongful termination. Respondent, by counsel Mario R. 

Bordogna and Julia A. Arbore, filed a response, to which petitioner submitted a reply. 

Additionally, the Court acknowledges the filing of amicus curiae briefs by the United Mine 

Workers of America, West Virginia Employment Lawyers Association and the American 

Association of Retired Persons (AARP). 

This Court has considered the briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Petitioner began working as a housekeeper for respondent in 2005.1 On April 2, 2012, 

petitioner and a fellow housekeeper were working near the emergency department at 

respondent’s hospital facility when a nurse’s aide brought a patient to the emergency department 

from the adjoining clinic. Petitioner recognized the patient and asked her, “[A]re you okay? . . . 

[W]hat’s the problem?” A nurse in respondent’s emergency department was standing nearby and 

overheard petitioner’s inquiries to the patient. The nurse admonished petitioner for making 

inquiries to the patient regarding the patient’s health condition. Because petitioner was not 

involved in patient care, soliciting protected health information from patients at respondent’s 

facility was a violation of respondent’s confidentiality policy.2 

1

Petitioner was 58 years old when she was hired by respondent. 

2

Respondent’s personnel policy 1-109.1 on confidentiality of patient information states, 

in part, that “[a]s an employee, your job may allow you access to medical records or other 

pertinent patient information considered to be confidential. You must not discuss patients or their 

(continued. . .) 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The nurse then escorted the patient into the emergency department. Thereafter, petitioner 

saw the patient’s teenage son in the public hallway of respondent’s hospital facility, and, with 

another housekeeper nearby, asked the boy about his mother’s medical condition. This second 

communication was overheard by the same nurse. Just afterward, this nurse overheard petitioner 

ask a member of the emergency medical service personnel, “[W]hat are you doing? . . . 

[W]here are you going, boy?” as the EMS technician was transporting a patient from 

respondent’s facility. The nurse memorialized her observations of these three incidents in a 

formal incident report, dated April 3, 2013. 

In response to the incident report, respondent’s director of patient safety and quality 

began an investigation, including an interview of the reporting nurse and a nurse’s aide present 

during the incidents. The reporting nurse advised respondent’s director of patient safety and 

quality that she had spoken with petitioner in the past about soliciting protected health 

information inappropriately from patients, and had, at that time, directed petitioner to stop such 

inquires.3 As a part of its investigation, respondent also considered petitioner’s training related to 

patient confidentiality, and determined that petitioner received multiple trainings on patient 

confidentiality and the Health Insurance Portability and Accountability Act (“HIPPA”) within 

the year prior to the incidents.4 

Ultimately, respondent’s director of patient safety and quality recommended that 

petitioner’s employment be terminated because of her flagrant and repetitive violations of 

respondent’s confidentiality policy.5 Thereafter, a meeting was held between respondent’s 

visitors with anyone outside or inside the Hospital, other than in the course of the patient’s care 

and treatment.” 

3

Within the year prior to the April 2, 2012, incidents, petitioner came to respondent’s 

emergency department stating that her daughter had just advised her about an accident she 

learned of “on the scanner.” Petitioner wanted to know if the people injured in that accident were 

being treated at respondent’s facility. Petitioner was admonished by the reporting nurse for her 

improper inquiry. Further, approximately six months before the April 2, 2012, incidents 

petitioner saw someone she recognized in respondent’s clinic and openly asked that person why 

he/she was there. The nurse reported this incident to respondent’s clinic staff and advised them to 

discipline petitioner. 

4

Petitioner additionally acknowledged signing a confidentiality statement at the inception 

of her employment wherein she pledged, under the penalty of termination, not to talk about or 

discuss any events of patient care with anyone – unless in the line of treatment. Further, during 

her deposition, petitioner admitted she had previously read respondent’s personnel policy 1­

109.1 and understood that she should not discuss patient care issues unless she was involved in 

the provision of medical treatment. 

5

Respondent’s personnel policy 4-401.1 states, in part, that immediate termination of 

employment is warranted for violations of state or federal laws. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

administrator, human resources manager, and housekeeping supervisor to discuss petitoner’s 

employment, and, on April 3, 2012, petitioner’s employment with respondent was terminated. 

On August 31, 2012, petitioner filed the instant lawsuit against respondent, asserting a 

single claim for age discrimination under the West Virginia Human Rights Act, West Virginia 

Code §§ 5-11-1 through -21. After the close of discovery, on February 28, 2014, respondent filed 

a motion for summary judgment, asserting that there existed no genuine issue of material fact, 

and it was entitled to judgment as a matter of law as petitioner was unable to establish a prima 

facie case of age discrimination. Respondent argued that even if petitioner did establish such a 

claim, that respondent had a legitimate, non-discriminatory reason for petitioner’s termination, 

and petitioner had insufficient evidence to establish that respondent’s legitimate, nondiscriminatory reason for her discharge was a pretext. 

By order dated May 7, 2014, the circuit court advised that it would grant respondent’s 

motion for summary judgment and instructed respondent to submit an order to that effect.6 On 

July 8, 2014, the circuit court entered its findings of fact, conclusions of law, and order granting 

respondent’s motion for summary judgment. It is from the July 8, 2014, order granting 

respondent’s motion for summary judgment that petitioner now appeals. 

On appeal, petitioner asserts three assignments of error. First, petitioner contends that the 

circuit court erred in finding that evidence that petitioner was replaced by an employee of who 

was substantially younger than her (but over the age of 40) was insufficient, as a matter of law, 

to demonstrate petitioner’s prima facie case of age discrimination against respondent. Second, 

petitioner asserts that the circuit court erred in concluding that evidence that petitioner was 

treated less favorably than other employees who were substantially younger than her (but over 

the age of 40) was insufficient to establish petitioner’s prime facie case of age discrimination 

against respondent. In her third assignment of error, petitioner argues that the circuit court erred 

in finding that petitioner had not presented sufficient evidence that respondent’s purported 

legitimate nondiscriminatory reason for termination was a pretext. 

We review a circuit court’s entry of summary judgment de novo. Syl. Pt. 1, Painter v. 

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In Wilkinson v. Searls, 155 W.Va. 475, 184 

S.E.2d 735 (1971), we held that a motion for summary judgment should be granted “if the 

pleadings, exhibits and discovery depositions upon which the motion is submitted for decision 

disclose that the case involves no genuine issue as to any material fact and that the party who 

made the motion is entitled to a judgment as a matter of law.” Syl. Pt. 5, in part, id. 

6

Petitioner filed a motion to alter or amend judgment on May 7, 2014, contending that 

she had additional evidence of pretext. In early May of 2014, petitioner became aware of a video 

posted by respondent to its internet site depicting a number of respondent’s employees and some 

residents of respondent’s long term care facility. Petitioner argued that the video was evidence 

that the reasons cited for her employment termination were a pretext. By order entered July 8, 

2014, the circuit court denied petitioner’s motion to alter or amend, finding that the video was 

not relevant to petitioner’s claims. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We have previously ruled that 

[i]n an action to redress unlawful discriminatory practices in employment . 

. . the burden is upon the complainant to prove by a preponderance of the 

evidence a prima facie case of discrimination[.] If the complainant is successful in 

creating this rebuttable presumption of discrimination, the burden then shifts to 

the respondent to offer some legitimate and nondiscriminatory reason for the 

rejection. Should the respondent succeed in rebutting the presumption of 

discrimination, then the complainant has the opportunity to prove by a 

preponderance of the evidence that the reasons offered by the respondent were 

merely a pretext for the unlawful discrimination. 

Syl. Pt. 2, Young v. Bellofram Corp, 227 W.Va. 53, 705 S.E.2d 560 (2010) (citing Syl. Pt. 3, in 

part, Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human 

Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983)). 

In order to establish a prima facie case of employment discrimination under the West 

Virginia Human Rights Act,7 

the plaintiff must offer proof of the following: (1) That the plaintiff is a 

member of a protected class[;] (2) That the employer made an adverse decision 

concerning the plaintiff[; and] (3) But for the plaintiff’s protected status, the 

adverse decision would not have been made. 

Syl. Pt. 3, Young, 227 W.Va. at 55, 705 S.E.2d at 562 (citing Syl. Pt. 3, Conaway v. Eastern 

Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986)). 

In the instant case, the parties do not dispute that petitioner is a member of the protected 

age class (over the age of forty) or that her termination was an adverse employment decision. 

Thus, in order to successfully establish her age discrimination claim, petitioner had only to 

establish that but for her age, her employment would not have been terminated. In granting 

respondent’s motion for summary judgment, the circuit court ruled that petitioner was unable to 

make such a showing. 

In her first assignment of error, petitioner contends that the circuit court erred in finding 

that petitioner’s showing that she was replaced by an employee who was substantially younger 

than her, though over the age of forty, was insufficient to establish a prima facie case of age 

7

The West Virginia Human Rights Act is codified at West Virginia Code §§ 5-11-1 

through -21. West Virginia Code § 5-11-2 declares, in part, that it is the public policy of the State 

of West Virginia to “provide all of its citizens equal opportunity for employment.” This section 

further states that “[e]qual opportunity in the areas of employment . . . is hereby declared to be a 

human right or civil right of all persons without regard to age . . .” W.Va. Code § 5-11-3(k) 

defines the term age, as “forty or above.” 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

discrimination. Petitioner cites O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 

S.Ct. 1307 (1996), in which the United States Supreme Court rejected the application of an over 

40/under 40 test in favor of a substantially younger test in an age discrimination case arising 

under the Americans with Disability Act. Petitioner argues that this Court should follow suit and 

overturn the over 40/under 40 test articulated in Conaway, and adopt the substantially younger 

test created in O’Connor. Respondent asserts that the circuit court properly applied the law 

articulated by this Court in Conaway, and that there existed adequate support in the underlying 

record to support the circuit court’s granting of summary judgment to respondent. We agree. 

We have long held that “[a]n appellate court should not overrule a previous decision 

recently rendered without evidence of changing conditions or serious judicial error in 

interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, 

which is to promote certainty, stability, and uniformity in the law.” Syl. Pt. 2, Dailey v. Bechtel, 

157 W.Va. 1023, 207 S.E.2d 169 (1974). In Adkins v. St. Francis Hospital, 149 W.Va. 705, 

718, 143 S.E.2d 154, 162, we discussed the principle of stare decisis, and noted that 

[s]tare decisis is not a rule of law but is a matter of judicial policy. . . . It is 

a policy which promotes certainty, stability and uniformity in the law. It should be 

deviated from only when urgent reason requires deviation. . . . In the rare case 

when it clearly is apparent that an error has been made or that the application of 

an outmoded rule, due to changing conditions, results in injustice, deviation from 

that policy is warranted. 

Based upon our review of the record in this case, we find no error in the circuit court’s 

award of summary judgment to respondent. Petitioner repeatedly, and blatantly, violated 

respondent’s patient confidentiality policy, despite having knowledge of the policy and receiving 

training on the same. 

In her second assignment of error, petitioner contends that the circuit court erred in 

determining that evidence proffered by petitioner that she was treated less favorably than 

respondent’s other employees who were substantially younger than her, but over the age of 40, 

was insufficient to establish a prima facie case of age discrimination. In an attempt to satisfy her 

burden of proof, petitioner relied upon comparator evidence and argued that respondent handled 

the claims of four other employees differently than it handled petitioner’s claims. Petitioner 

contends that these comparators engaged in more egregious behavior than her, but received more 

lenient treatment. The circuit court ruled that the actions of one of the comparators referenced by 

petitioner had nothing to do with a violation of patient privacy or confidentiality, but arose from 

an unrelated criminal charge. Accordingly, the circuit court determined that individual’s 

comparator evidence was not proper for consideration. As to the remaining comparators, the 

circuit court, citing Young, found that these individuals failed to establish an inference of age 

discrimination as to respondent’s handling of petitioner’s claims because each of these 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

comparators were also members of petitioner’s protected class (i.e., they were all age forty or 

above).8 

Based upon our review of the record before us, we find no merit to petitioner’s argument. 

Petitioner failed to provide any relevant comparator evidence related to an employee outside of 

her protected age group. While petitioner again argues for the application of the substantially 

younger test articulated in O’Connor, we decline to overrule existing West Virginia law under 

the principle of stare decisis. Accordingly, we find no error with the circuit court’s award of 

summary judgment to respondent. 

In her final assignment of error, petitioner contends that the circuit court erred in finding 

that petitioner did not present sufficient evidence that respondent’s purported legitimate 

nondiscriminatory reason for terminating her employment was a pretext. We decline to address 

petitoner’s final assignment of error, as the previous assignments of error are dispositive of the 

claims at issue herein. In syllabus point five of Young we held that 

[w]hen an employee makes a prima facie case of discrimination, the 

burden shifts to the employer to prove a legitimate nonpretextual, and 

nonretaliatory reason for the discharge. In rebuttal, the employee can then offer 

evidence that the employer’s proffered reason for the discharge is merely a pretext 

for the discriminatory act. (Citations omitted). 

227 W.Va. at 55, 705 S.E.2d at 562. 

In the instant case, consideration of pretext is improper as petitioner did not establish a 

prima facie case of discrimination. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: August 28, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

8

In Young, we ruled that a co-employee who was over the age of 40, and therefore, also a 

member of the same protected age class as a plaintiff, was not a proper comparator to provide an 

inference of age discrimination. 

6
 
7