United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is the Motion for Partial Summary Judgment
submitted by Plaintiff Danny Bills and the Motion for Summary
Judgment submitted by Defendant OS Restaurant Services, LLC.
ECF Nos. 37, 39. Plaintiff asserts, in his complaint, a
single claim against Defendant for discriminating against him
based upon his disability, in violation of the West Virginia
Human Rights Act (“WVHRA”). See Compl.,
ECF No. 1-2, at 4-6. Defendant now moves for summary judgment
on this single claim, arguing that Plaintiff does not qualify
as a “disabled person” under the WVHRA, and that,
even if he does, the undisputed facts prove that Defendant
did not discriminate against him as a matter of law. See
Def.'s Mot. for Summ. J., ECF No. 39, at 1.
Plaintiff, on the other hand, asserts that material disputes
of fact exist for these issues, and moves for partial summary
judgment on Defendant's affirmative defense that
Plaintiff was terminated because his disability made him a
direct threat to others in the workplace. See Mem. in
Supp. of Pl.'s Mot. for Partial Summ. J., ECF No.
38, at 1-2, 8.
parties have fully briefed the issues and the motions are now
ripe for adjudication. As explained below, the Court
DENIES both Plaintiff's Motion for
Partial Summary Judgment and Defendant's Motion for
twenty years ago, in 1995, Defendant hired Plaintiff as a
dishwasher at the Outback Steakhouse in Huntington, West
Virginia. See Dep. of Bills, ECF No. 39-1, at 9, 11.
Throughout his employment, Plaintiff progressed to work in
several different positions at the restaurant. See
Id. at 11-12. However, during the last few years of his
employment, Plaintiff worked primarily at the “bloom
station, ” while occasionally assisting other employees
at their stations when necessary. See Id. at 12-13.
Plaintiff developed a vision condition known as macular
degeneration. See Id. at 27. By approximately 2016
his vision became so impaired that he could no longer read,
and in 2018 he was diagnosed as legally blind. See
Id. at 48, 80. Because Plaintiff's impaired vision
impacted some of his duties at the restaurant, Defendant made
various accommodations. For example, a manager would clock
Plaintiff in and out of his shifts, and coworkers would read
the meal tickets to him,  create pre-made bags of ingredients for
him, and label his products. See Dep. of Bills, at
26-27, 32-33, 40-41, 59. However, Tony Cloninger, a managing
partner at the restaurant, testified that Plaintiff's
coworkers developed “animosity” toward Plaintiff
because he could not assist them due to his visual
impairment. See Dep. of Cloninger, ECF No. 39-2, at
order to eliminate the complaints from coworkers, Mr.
Cloninger testified that Plaintiff was moved to the day shift
to perform maintenance work, such as sweeping floors and
washing dishes. See Id. at 44. However, because
budget constraints made it difficult to allow Plaintiff to
work as many hours as he had in the maintenance role, Mr.
Cloninger stated that he was forced to transfer Plaintiff
back to his night shift position at the bloom station.
See Id. at 44, 49-50. As a result of this move back
to the night shift Plaintiff contacted Jona Ford,
Defendant's regional director, to discuss his schedule.
See Id. at 50-52; Dep. of Ford, ECF No.
39-3, at 12-15. It was also around this time-late January of
2018-that Mr. Cloninger emailed Defendant's corporate
office and raised concerns about Plaintiff's ability to
perform his job and the potential for injury that Plaintiff
created due to his vision. See Dep. of
Morris-McGrath, ECF No. 39-4, at 15-17.
February 20, 2018, Ms. Ford met with Plaintiff and Mr.
Cloninger at the restaurant to discuss Plaintiff's
scheduling concerns. See Dep. of Bills, at 62-63.
After the meeting, Ms. Ford expressed concerns regarding
Plaintiff's vision to Defendant's legal department,
which then instructed Plaintiff to visit an eye doctor.
See Id. at 63. Plaintiff agreed and visited his eye
doctor, Dr. Robert Dundervill, on March 9, 2018. See
Id. However, before Plaintiff visited Dr. Dundervill,
Defendant's Labor and Employment Paralegal, Ali
Morris-McGrath, sent a letter to Dr. Dundervill. See
Id. at 73-74; Dep. of Morris-McGrath, at 11. In
the letter, Ms. Morris-McGrath described what she believed
were the essential functions of Plaintiff's position and
asked Dr. Dundervill to provide his opinion on what
accommodations, if any, would allow Plaintiff to perform the
essential functions. See Dep. of Bills, at 73-74.
March 9, 2018, Dr. Dundervill responded to Ms.
Morris-McGrath's letter, and stated that Plaintiff's
vision “should allow him to function in most
environments, ” but that “[a]nything that
requires fine detailed vision will be difficult for him to
do.” See Id. at 85; Dep. of
Morris-McGrath, at 50-51. Ms. Morris-McGrath then sent a
second letter to Dr. Dundervill on March 13, 2018, and
requested clarification on the specific issue of whether
Plaintiff could perform the essential job duties safely.
See Dep. of Morris-McGrath, at 51-53. On March 29,
2018, Dr. Dundervill responded by saying that it is
“impossible to predict someone's ability to perform
job duties and job descriptions based solely on their level
of visual function.” See Id. at 68-69. He then
recommended that Defendant observe Plaintiff working and see
if he can perform the duties that are required based on his
job description. See Id. at 69. Five days after
receiving this response, Mr. Cloninger terminated Plaintiff
at the instruction of Ms. Morris-McGrath. See Dep. of
Cloninger, at 112. As a result of his termination,
Plaintiff filed his complaint against Defendant for
disability discrimination under the WVHRA. See
Standard of Review
obtain summary judgment, the moving party must show that no
genuine issue as to any material fact remains and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, a court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
a court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Any inference,
however, “must fall within the range of reasonable
probability and not be so tenuous as to amount to speculation
or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
(citation omitted). Therefore, summary judgment will not be
granted if a reasonable jury could return a verdict for the
non-moving party on the evidence presented. See
Anderson, 477 U.S. at 247-48.
Unlawful Discrimination Under the WVHRA
WVHRA prohibits employers from discriminating against
individuals based upon their blindness or disability when,
despite the disability, “the individual is able and
competent to perform the services required.”
See W.Va. Code §§ 5-11-2, 5-11-9(1). In
McDonnell Douglas Corp. v. Green,
United States Supreme Court created a three-step
burden-shifting test for Title VII employment discrimination
cases, and the West Virginia Supreme Court has adopted this
three-step test for discrimination cases such as this.
See Knotts v. Grafton City Hosp., 786 S.E.2d 188,
194 ( W.Va. 2016). “The first step under McDonnell
Douglas is to determine whether the plaintiff has made a
prima facie case of discrimination.” Id. at
194. If the first step is satisfied then the court moves to
the second step, where “the burden of production shifts
to the employer to articulate some legitimate,
nondiscriminatory reason for the negative action taken
against the complainant.” Id. Finally, if this
second step is met, the third step requires that the
plaintiff “prove that the employer's reason was
Whether Plaintiff Has Stated a Prima Facia Case for
first claims that Plaintiff cannot state a prima facie case
of discrimination. See Mem. in Supp. of Def.'s Mot.
for Summ. J., at 10. To establish a prima facie case of
disability discrimination under the WVHRA a plaintiff must
show that (1) he meets the definition of “disabled,
” (2) he is a “qualified disabled person, ”
and (3) he was discharged from his job. See Hosaflook v.
Consolidation Coal Co., 497 S.E.2d 174, 178-79 ( W.Va.
1997). There is no dispute in this case that Plaintiff meets
the definition of “disabled” and that he was
discharged from his job. See Mem. in Supp. of Def.'s
Mot. for Summ. J., ...