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Bills v. OS Restaurant Services, LLC

United States District Court, S.D. West Virginia, Huntington Division

July 31, 2019

DANNY BILLS, Plaintiff,



         Pending 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.

         The 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 Summary Judgment.

         I. Background

         Over 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.

         In 2005 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, [1] 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 16, 35.

         In 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.

         On 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.

         On 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 Compl.

         II. Standard of Review

         To 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.

         III. Discussion

         A. Unlawful Discrimination Under the WVHRA

         The 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, [2] the 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 pretextual.” Id.

         1. Whether Plaintiff Has Stated a Prima Facia Case for Disability Discrimination

         Defendant 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., ...

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