United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
is Universal Cable Holdings, Inc.'s (“Universal
Cable”) motion for summary judgment, filed June 20,
Factual and Procedural Background
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. (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.”)
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.)
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.)
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;
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.)
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.
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.)
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
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
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.)
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
[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 ...