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Davis v. Universal Cable Holdings, Inc.

United States District Court, S.D. West Virginia, Charleston

November 6, 2017

RONALD DAVIS, Plaintiff,



         Pending is Universal Cable Holdings, Inc.'s (“Universal Cable”) motion for summary judgment, filed June 20, 2017.

         I. Factual and Procedural Background

         The following background is recounted from the record, read in the light most favorable to the non-moving party, plaintiff Ronald Davis (“Mr. Davis”). Mr. Davis began working as a Broadband Technician (“BBT”) I for Universal Cable on July 1, 2006.[1] (Davis Dep. 16-17.) On July 11, 2012, Mr. Davis underwent the first of twelve procedures related to recurring pilonidal cysts, resulting in a series of leaves of absence, (id. 35, 43-44): from July 11, 2012, through August 6, 2012, (id. 43-44); from November 2, 2012, through December 2, 2012, (id. 56); and from February 21, 2013, through July 22, 2013, (id. 62-63). Universal Cable did not pay Mr. Davis during these periods, nor during any other leaves of absence. (Duska Shane Arbaugh Deposition (“Arbaugh Dep.”) 10.)

         On August 1, 2012, near the end of his first leave of absence, Universal Cable offered Mr. Davis a promotion to BBT IV. (Davis Dep. 27.) As a BBT IV, Mr. Davis's job duties included carrying objects up to seventy-five pounds; climbing ladders twenty-eight feet high; climbing poles using “gaffs, ” hooks, and a climbing belt; “crawling, bending, reaching, [and] twisting” through “confined spaces;” and “standing 50-70% of the time.” (Universal Cable's Ex. A, BBT IV Job Description; see Davis Dep. 28-32.)

         Sometime around March, 2013, Mr. Davis exhausted the leave to which he was entitled under the Family and Medical Leave Act and thereafter needed Universal Cable's approval for any additional leave or other accommodation. (Davis Dep. 74-78.) About four months later, Dr. Zutshi, Mr. Davis's pilonidal cyst surgeon, recommended that Mr. Davis temporarily be placed on light duty as a Warehouse Converter Technician (“WCT”). (See Mr. Davis's Ex. B, Dr. Zutshi Letter of July 25, 2013.) Universal Cable agreed, and Mr. Davis began light duty as a WCT on July 25, 2013. (See Davis Dep. 99-102.)

         A WCT's job functions include picking up objects from the floor “to a height of [six] feet;” “lift[ing] up to 70 [pounds];” and “work[ing] in [a] stationary position seated and standing for extended periods of time.” (Universal Cable's Ex. A, WCT Job Description; see also Davis Dep. 102-04.) As a practical matter, Mr. Davis's role as a WCT required him to lift objects of about only five pounds to a height of about three feet. (Davis Dep. 103-04; 224-25.)

         On November 11, 2013, Dr. Zutshi requested that Mr. Davis remain on light duty for four to six more weeks, at which point he could return to his duties as a BBT IV. (Universal Cable's Ex. A, Dr. Zutshi Letters of September 20, 2013, and November 11, 2013.) Accordingly, Universal Cable extended Mr. Davis's light duty through December 22, 2013. (Id. Universal Cable Letter of November 14, 2013.) On December 20, 2013, Mr. Davis's family physician, Dr. Dumm, recommended that Mr. Davis continue light duty for two additional months. (Mr. Davis's Ex. C; see also Davis Dep. 126-28.)

         Mr. Davis continued working as a WCT, and sometime in the following weeks Universal Cable evidently asked Dr. Dumm to clarify Mr. Davis's work restrictions. (See Davis Dep. 129-34; Mr. Davis's Ex. D.) On January 17, 2014, Dr. Dumm responded that Mr. Davis “cannot sit” for more than thirty minutes; “cannot lift” more than ten pounds; had difficulty lifting, standing, and sitting; was in a high degree of pain; and was at “high risk for cyst rupture.” (Mr. Davis's Ex. D; see also Davis Dep. 129-34.) Further, Dr. Dumm recommended that Mr. Davis perform “no lifting” and be placed on light duty through April 30, 2014. (Mr. Davis's Ex. D.) Deciding that his continued working as a WCT risked complicating his medical condition, (see Arbaugh Dep. 9, 39-40, 67-69), on January 22, 2014, Universal Cable removed Mr. Davis from light duty and placed him back on leave through April 30, 2014, (see Universal Cable's Ex. A, Universal Cable Letter of January 21, 2014; Mr. Davis's Ex. E; Davis Dep. 129-40).

         During this leave period, Mr. Davis received cortisone injections in and underwent arthroscopic surgery on both of his knees. (See Mr. Davis's Exs. F-G; Universal Cable's Ex. A, Dr. Majestro Letters; Davis Dep. 143-59.) On April 25, 2014, Dr. Majestro, Mr. Davis's knee surgeon, informed Universal Cable that Mr. Davis would “remain continuously disabled” for four to six weeks pending a follow-up appointment, scheduled May 6, 2014. (Universal Cable's Ex. A, Dr. Majestro Letter of April 25, 2014.) After the May 6 appointment, Dr. Majestro cleared Mr. Davis to return to work on May 12, 2014, provided he did no climbing until his next re-evaluation on June 3, 2014. (Mr. Davis's Ex. F.) But on May 13, 2014, Dr. Majestro clarified that he expected Mr. Davis to “return to work full[-time] after” June 3. (Universal Cable's Ex. C, Dr. Majestro Letter of May 13, 2014.) Universal Cable extended Mr. Davis's leave accordingly. (Davis Dep. 157-58, 163; Arbaugh Dep. 9, 39-40, 67-69.)

         However, at the June 3 follow-up appointment, and at a subsequent June 18 appointment, Dr. Majestro found Mr. Davis “continuously disabled” pending re-evaluation and failed to provide a definite return-to-work date. (See Universal Cable's Ex. A, Dr. Majestro Letters.) Finally, after an appointment on July 9, 2014, Dr. Majestro again found Mr. Davis “continuously disabled” and requested extended leave pending his next re-evaluation, scheduled August 12, 2014. (Mr. Davis's Ex. F.) Instead, Universal Cable fired Mr. Davis on July 11, 2014, stating as follows:

We have received your most recent doctor's note dated 7/9/2014 stating that you cannot return to work and indicating only that you will be re-examined at your next appointment on 8/12/2014. . . . We cannot extend your leave any further. Therefore, your employment will be terminated effective 7/11/2014.
Your doctor has given no indication as to whether or when you may be able to return to work in any capacity, which means we cannot consider you for reassignment to an open position. If you are able to return to work at a later date, we invite you to reapply for any open position for which you are qualified. Currently, we have an open dispatch position, and our website is continually updated available job openings [sic]. We invite you to view the [Universal Cable] job postings at
If there are additional circumstances that may be relevant, or that you may wish to bring to the company's attention regarding your absence or your condition, please feel free to contact [Universal Cable].

(Id. Ex. H.) Mr. Davis did not formally apply for the referenced dispatch position, nor did he formally apply for any other jobs with Universal Cable. (See Davis Dep. 172-74.) He told Universal Cable at some point after his knee surgery that he could have worked either as a WCT or at dispatch and asked that he be placed on light duty in one of those positions, but Universal Cable told him that “they wanted [him] exclusively to go back to the BBT IV position.” (Id. 172.) Universal Cable notes that he in fact had not been released by his doctors for any duty.

         On August 15, 2014, Dr. Majestro cleared Mr. Davis to return to work with no restrictions. (Mr. Davis's Ex. G.) Dr. Majestro's internal notes from May - undisclosed to Universal Cable - indicate that he would have released Mr. Davis to perform light duty if he believed that light duty were available and, alternatively, believed that long-term disability was Mr. Davis's other option. (See id.) Mr. Davis claims that Universal Cable had an open WCT position from the time his light duty ended until his firing, (id. 233-34), and the termination letter indicates that there was an open dispatch position as well, (Mr. Davis's Ex. H). Universal Cable disputes that it then had an open WCT position. (Arbaugh Dep. 6-7.)

         Mr. Davis filed the complaint in this lawsuit in the Kanawha County Circuit Court on July 1, 2016. He claims that Universal Cable discriminatorily discharged his employment based on disability in violation of the West Virginia Human Rights Act (“WVHRA”), West Virginia Code chapter 5, article 11. (Complaint ¶ 30.) The WVHRA proclaims that “[e]qual opportunity in the area[] of employment . . . is hereby declared to be a human right or civil right of all persons without regard to . . . disability.” W.Va. Code § 5-11-2 (2014). Correspondingly, the WVHRA provides that

[i]t shall be an unlawful discriminatory practice . . . (1) [f]or any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the ...

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