Submitted: January 30, 2019
from the Circuit Court of Putnam County The Honorable Joseph
Reeder, Judge Civil Action No. 15-C-34
G. Atkins, Esq. Victor O. Cardwell, Esq. Charleston, West
Virginia Michael P. Gardner, Esq. Counsel for the Petitioner
O. Cardwell, Esq. Michael P. Gardner, Esq. Woods Rogers, PLC
Roanoke, Virginia Albert F. Sebok, Esq. Jackson Kelly, PLLC
Charleston, West Virginia Counsel for the Respondent
"A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syl. Pt. 3,
Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New
York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
"Summary judgment is appropriate where the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party
has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove."
Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994).
"In order to make a prima facie case of employment
discrimination under the West Virginia Human Rights Act,
W.Va. Code § 5-11-1 et seq. (1979), 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
(3) But for the plaintiff's protected status, the adverse
decision would not have been made."
Syl. Pt. 3, Conaway v. Eastern Associated Coal
Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).
"The 'but for' test of discriminatory motive in
Conaway v. Eastern Associated Coal Corp., 178 W.Va.
164, 358 S.E.2d 423 (1986), is merely a threshold inquiry,
requiring only that a plaintiff show an inference of
discrimination." Syl. Pt. 2, Barefoot v. Sundale
Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995).
"In order to establish a case of discriminatory
discharge under W.Va. Code, 5-11-9 , with
regard to employment because of a [disability], the
complainant must prove as a prima facie case that (1) he or
she meets the definition of [having a 'disability'],
(2) he or she is a '[qualified individual with a
disability],' and (3) he or she was discharged from his
or her job. The burden then shifts to the employer to rebut
the complainant's prima facie case by presenting a
legitimate nondiscriminatory reason for such person's
discharge. If the employer meets this burden, the complainant
must prove by a preponderance of the evidence that the
employer's proffered reason was not a legitimate reason
but a pretext for the discharge." Syl. Pt. 2, Morris
Mem'l Convalescent Nursing Home, Inc. v. W.Va. Human
Rights Comm'n, 189 W.Va. 314, 431 S.E.2d 353 (1993).
"A '[qualified individual with a disability]'
under the West Virginia Human Rights Act and the accompanying
regulations is one who is able and competent, with
reasonable accommodation, to perform the essential
functions of the job in question." Syl. Pt. 1,
Coffman v. W.Va. Bd. of Regents, 182 W.Va. 73, 386
S.E.2d 1 (1988), overruled on other grounds by Skaggs v.
Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996).
"To state a claim for breach of the duty of reasonable
accommodation under the West Virginia Human Rights Act, W.Va.
Code, 5-11-9 (1992), a plaintiff must alleged the following
elements: (1) The plaintiff is a qualified person with a
disability; (2) the employer was aware of the plaintiff's
disability; (3) the plaintiff required an accommodation in
order to perform the essential functions of a job; (4) a
reasonable accommodation existed that met the plaintiff's
needs; (5) the employer knew or should have known of the
plaintiff's need and of the accommodation; and (6) the
employer failed to provide the accommodation." Syl. Pt.
2, Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479
S.E.2d 561 (1996).
Under the West Virginia Human Rights Act, W.Va. Code §
5-11-9 , an employer may rely upon the reasonable
opinion of a medical expert when deciding if a disabled
individual is medically qualified to perform the essential
functions of a job. A reasonable opinion is one made in good
faith by an expert familiar with the individual, including
the individual's work and medical history, and with the
essential functional requirements of the job.
Donald Woods brought this disability discrimination action
pursuant to the West Virginia Human Rights Act, W.Va. Code
§§ 5-11-1 to -20. He alleged that the defendant,
Jefferds Corporation ("Jefferds"), refused to hire
him because of his physical disability. Jefferds moved for
summary judgment asserting it declined to hire Mr. Woods
because a pre-employment physical examination revealed that
Mr. Woods's disability prevented him from completing
essential responsibilities of the job. Additionally, Jefferds
argued that Mr. Woods neither asked for nor proposed any
reasonable accommodation that would allow him to complete
those essential tasks. Instead, Mr. Woods insisted upon an
unreasonable course: that Jefferds disregard the results of
the physical examination. The Circuit Court of Putnam County
granted the motion for summary judgment and dismissed the
Woods now appeals the circuit court's summary judgment
order. We affirm.
Factual and Procedural Background
respondent and defendant below is Jefferds Corporation, an
equipment servicing company. Jefferds has employees
permanently stationed within the Toyota manufacturing plant
in Buffalo, West Virginia, who maintain and repair
Toyota's assembly-line machinery, cranes, forklifts, and
other equipment. Jefferds classifies each employee as an
"engineering equipment mechanic," a physically
demanding job that requires crouching, climbing ladders,
lifting and carrying up to 75 pounds, crawling, and otherwise
contorting oneself into tight and precarious positions. Some
equipment in the plant is located atop lifts that can be
repaired or maintained only by climbing vertical ladders;
other equipment is in below-ground "containment
pits" where fluids build up and pumps are serviced. Four
engineering equipment mechanics work on the day shift at the
Toyota plant, and two work the night shift.
2013, Jefferds advertised an opening for an engineering
equipment mechanic at the Toyota plant on the night shift.
The petitioner and plaintiff below, Donald Woods, responded
to the advertisement and an in-person interview was arranged.
In January 2014, Mr. Woods met with three Jefferds employees:
the site supervisor at the Toyota plant, the company's
human resources manager, and an operations manager. The
parties agree that the interview went well.
the interview, Mr. Woods told the Jefferds employees that he
had a prosthetic leg. In 2003, Mr. Woods was involved in a
motorcycle accident that resulted in the amputation of his
left leg above the knee. Because of his prosthesis, Mr. Woods
expressed two limitations on his work abilities: first, he
said he had difficulty picking up and then walking while
carrying a heavy object, and second, he said he could not
wear a heavy, steel-toed boot on his prosthesis. After
discussions, the Jefferds employees agreed that Mr. Woods
could use a dolly to move heavy objects, and that he could
wear a tennis shoe on his prosthetic leg. During the first
interview, Mr. Woods was invited to complete a formal job
application for Jefferds.
weeks later, a Jefferds supervisor contacted Mr. Woods and
invited him back to the company's office. In this second
meeting, the supervisor conditionally offered Mr. Woods the
engineering equipment mechanic job. Mr. Woods later recalled
that the supervisor told him "that I was perhaps, maybe,
the best candidate that they had gotten so far."
However, the Jefferds supervisor told Mr. Woods the offer was
conditioned upon him successfully passing a pre-employment
physical examination.Jefferds scheduled and paid for the
examination with an independent physician.
supplied the physician with a "Jefferds Corporation
Physical Examination" form to complete after seeing Mr.
Woods. Jefferds also supplied the physician with a four-page
document that outlined the physical skills required of an
engineering equipment mechanic. Those skills included
"stooping, bending, crouching, crawling,"
"climbing step ladders," "climbing stairs and
ladders," "climbing 40' extension
ladders," and "building and climbing
physician saw Mr. Woods, completed the physical examination
form, and returned it to Jefferds. On the form, the physician
noted that Mr. Woods was wearing a prosthetic leg. Under the
heading "Physician's Recommendations to the
Prospective Employer," the physician declared that Mr.
Woods was "unable to do jobs that require squatting or
climbing ladders[.]" The physician also noted that
Jefferds should not give Mr. Woods a job that involved
"excessive stooping, bending, & crouching."
employees of Jefferds contacted Mr. Woods and arranged a
third, in-person meeting. At that meeting, the human
resources director for Jefferds told Mr. Woods about the
results of his physical examination. She told Mr. Woods that
the physician had recommended Mr. Woods not be placed in a
job that "require[s] squatting or climbing
ladders[.]" Because these were essential tasks required
of an engineering equipment mechanic, she said that Mr. Woods
could not have the job.
Woods objected and told the Jefferds employees present that
the doctor was wrong. He insisted that he could climb ladders
and that he could partially squat, and offered to demonstrate
that he could complete these skills. The Jefferds employees
listened to Mr. Woods's entreaties, but maintained they
were bound by the physician's assessment of his
abilities. In later depositions of the three Jefferds
employees who met with Mr. Woods, each employee stated that
the decision not to hire Mr. Woods was based solely upon the
physician's recommendation that Mr. Woods not be placed
in a job requiring squatting or climbing
February 19, 2015, Mr. Woods filed the instant lawsuit
against Jefferds in the Circuit Court of Putnam County,
alleging that the company's refusal to hire him
constituted disability discrimination in violation of the
West Virginia Human Rights Act.After the parties conducted
discovery, Jefferds filed a motion for summary judgment
asserting that Mr. Woods had failed to establish a prima
facie case of discrimination.
order dated October 4, 2017, the circuit court granted
summary judgment to Jefferds and dismissed Mr. Woods's
disability discrimination claim. In order to establish his
disability discrimination claim, the circuit court noted that
Mr. Woods was required to offer proof that Jefferds acted
with discriminatory intent and that Mr. Woods's
disability actually motivated the employer's decision.
The circuit court concluded that Jefferds could rebut any
inference of discrimination because it articulated a
legitimate, nondiscriminatory reason for their decision not
to hire Mr. Woods: it did not hire him because an independent
physician concluded Mr. Woods ...