Jeffry Walker ("Mr. Walker"), by counsel Karen H.
Miller, Joseph L. Amos, Jr., and Adam K. Strider, appeals the
order of the Circuit Court of Kanawha County, entered on July
18, 2016, that granted the motion of Respondent West Virginia
House of Delegates ("the House of Delegates") for
summary judgment and denied petitioner's motion for
partial summary judgment. The House of Delegates appears by
counsel Gary E. Pullin and Christopher C. Ross.
Court has considered the parties' 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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Walker filed a complaint in the Circuit Court of Kanawha
County in 2014, asserting that his at-will employment as a
custodian was illegally terminated after he suffered a
work-related injury and reported unacceptable working
conditions and harassment related to his workers'
compensation claim. That same year, Mr. Walker filed an
amended complaint, which included a deliberate intent claim
on the basis that the ladder from which he fell (resulting in
his compensable injury) was defective. Then, in early 2015,
Mr. Walker filed a motion for leave to file a second amended
complaint, in which he would assert a second deliberate
intent claim on the basis that he was improperly trained and
supervised on the safe use of ladders. The circuit court
denied Mr. Walker's motion by order entered on June 16,
discovery, the House of Delegates filed a motion for summary
judgment, and Mr. Walker filed a motion for partial summary
judgment on his claim for wrongful discharge based on
disability. The court entered an order finding that its June
16, 2015, order "appl[ied] equally to [Mr. Walker's]
original [d]eliberate [i]ntent claim" in the amended
complaint, and granted summary judgment on that ground.
Thereafter, on July 18, 2016, the court entered its order
denying Mr. Walker's motion for partial summary judgment
and granting the House of Delegates' motion on the
remainder of Mr. Walker's claims on the grounds that Mr.
Walker was not a disabled person within the meaning of the
West Virginia Human Rights Act and that Mr. Walker failed to
present evidence that he was disparately treated based on his
receipt of workers' compensation benefits.
Walker appeals the grant of summary judgment, asserting that
the circuit court erred in (1) finding that he was not a
member of a protected class at the time his employment was
terminated, (2) finding that his filing of a workers'
compensation claim was not a significant, motivating factor
in the decision to terminate his employment, and (3) denying
his motion to file a second amended complaint.
begin with Mr. Walker's first and second assignments of
error, which we review de novo (see syl. pt. 1,
Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d
755, 756 (1994)), inasmuch as both concern the grant of
summary judgment. First, we address Mr. Walker's
employment discrimination claim. To make a prima facie case
of discrimination, Mr. Walker must show that (1) he is a
member of a protected class; (2) his employer made an adverse
employment decision concerning him; and (3) but for his
protected status, the adverse decision would not have been
made. See Syl. Pt. 3, Conaway v. Eastern
Associated Coal Corp., 178 W.Va. 164, 166, 358 S.E.2d
423, 425 (1986). As the circuit court explained, not only did
Mr. Walker fail to show that he has a disability (having been
released by his physician to full-duty work without
restrictions), but he also failed to produce evidence
demonstrating that he was perceived by his employer as having
a disability. Mr. Walker therefore has failed to show that he
is a member of a protected class, and has failed to make a
prima facie claim of discrimination in violation of the West
Virginia Human Rights Act.
[i]n order to make a prima facie case of discrimination under
W.Va. Code, 23-5A-1, the employee must prove that: (1) an
on-the-job injury was sustained; (2) proceedings were
instituted under the Workers' Compensation Act, W.Va.
Code, 23-1-1, et seq.; and (3) the filing of a
workers' compensation claim was a significant factor in
the employer's decision to discharge or otherwise
discriminate against the employee.
Syl. Pt. 1, Powell v. Wyoming Cablevision, Inc., 184
W.Va. 700, 701, 403 S.E.2d 717, 718 (1991). Mr. Walker fails
the third requisite; as the circuit court aptly noted, he
"failed to adduce sufficient evidence from which a
rational finder of fact may infer that the filing [of] a
claim under the West Virginia Workers['] Compensation Act
was a significant factor in" the decision to terminate
his employment. Mr. Walker, therefore, did not make a prima
facie case of retaliation prohibited by West Virginia Code
to Mr. Walker's third and final assignment of error,
wherein he argues that the circuit court erred in denying his
motion for leave to file a second amended complaint. This we
review pursuant to the following standard:
"A trial court is vested with a sound discretion in
granting or refusing leave to amend pleadings in civil
actions. Leave to amend should freely be given when justice
so requires, but the action of a trial court in refusing to
grant leave to amend a pleading will not be regarded as
reversible error in the absence of a showing of an abuse of
the trial court's discretion in ruling upon a motion for
leave to amend." Syllabus Point 6, Perdue v. S.J.
Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250
Syl. Pt. 2, Crum v. Equity Inns, Inc., 224 W.Va.
246, 248, 685 S.E.2d 219, 221 (2009). Under the facts
presented by this case, we find no abuse of discretion on the
part of ...