Submitted: October 15, 2019
from the Circuit Court of Kanawha County The Honorable Joanna
I. Tabit, Judge No. 16-C-319
William V. DePaulo, Esq. Lewisburg, West Virginia Counsel for
Poe, Esq. Pullin, Fowler, Flannigan, Brown & Poe, PLLC
Charleston, West Virginia Counsel for Respondent
BY THE COURT
"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."
Syllabus Point 4, Painter v. Peavy, 192 W.Va. 189');">192 W.Va. 189,
451 S.E.2d 755 (1994).
"The circuit court's function at the summary
judgment stage is not to weigh the evidence and determine the
truth of the matter, but is to determine whether there is a
genuine issue for trial." Syllabus Point 3, Painter
v. Peavy, 192 W.Va. 189');">192 W.Va. 189, 451 S.E.2d 755 (1994).
"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 allege[ ] 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." Syllabus
Point 2, Skaggs v. Elk Run Coal Co., 198 W.Va. 51');">198 W.Va. 51,
479 S.E.2d 561 (1996).
"Under the West Virginia Human Rights Act, W.Va. Code,
5-11-9 (1992), reasonable accommodation means reasonable
modifications or adjustments to be determined on a
case-by-case basis which are designed as attempts to enable
an individual with a disability to be hired or to remain in
the position for which he or she was hired. The Human Rights
Act does not necessarily require an employer to offer the
precise accommodation an employee requests, at least so long
as the employer offers some other accommodation that permits
the employee to fully perform the job's essential
functions." Syllabus Point 1, Skaggs v. Elk Run Coal
Co., 198 W.Va. 51');">198 W.Va. 51, 479 S.E.2d 561 (1996).
"A constructive discharge cause of action arises when
the employee claims that because of age, race, sexual, or
other unlawful discrimination, the employer has created a
hostile working climate which was so intolerable that the
employee was forced to leave his or her employment."
Syllabus Point 4, Slack v. Kanawha County Housing and
Redevelopment Authority, 188 W.Va. 144');">188 W.Va. 144, 423 S.E.2d 547
"In order to prove a constructive discharge, a plaintiff
must establish that working conditions created by or known to
the employer were so intolerable that a reasonable person
would be compelled to quit. It is not necessary, however,
that a plaintiff prove that the employer's actions were
taken with a specific intent to cause the plaintiff to
quit." Syllabus Point 6, Slack v. Kanawha County
Housing and Redevelopment Authority, 188 W.Va. 144');">188 W.Va. 144, 423
S.E.2d 547 (1992).
Shirley Burns worked as a structural historian for the West
Virginia Department of Education and the Arts
(WVDEA) until she resigned in March of 2014.
Several months prior to that, she asked WVDEA to permit her
to work weekends from home rather than requiring her to take
paid leave for her weekly absences from work required for
medical treatments. WVDEA did not accommodate that request,
and Ms. Burns continued working and taking leave for her
medical treatments until she suffered an asthma attack at
work on January 14, 2014. After she did not return to work
and ultimately resigned, she sued WVDEA under the West
Virginia Human Rights Act (Act). Ms. Burns alleges that she
was unlawfully denied a reasonable accommodation and that she
was constructively discharged as a result of her requested
accommodation being denied. The parties both filed motions
for summary judgment, agreeing that there were no material
facts in dispute. The circuit court granted summary judgment
in favor of the WVDEA on Ms. Burns's claims because (1)
she did not require any accommodation to perform the
essential functions of her job and was permitted to take paid
leave for her weekly medical treatments; and (2) her
constructive discharge claim, premised entirely on the denial
of her request for accommodation, failed as a matter of law.
FACTS AND PROCEDURAL HISTORY
Burns worked as a historian and later a structural historian
for the State Historic Preservation Office (SHPO), a sub-part
of the West Virginia Division of Culture and History,
beginning in 2006. She reviewed projects for compliance with
the National Historic Preservation Act and other federal and
state laws and examined the impact of projects on historic
resources. Ms. Burns described her daily tasks as involving
"[r]esearch, writing, talking on the phone, editing
other workers' work[, ] [e]diting for different projects
that we put out[, ]" and occasional site visits. By all
accounts, Ms. Burns was a valued employee.
March of 2013, Ms. Burns had an asthma attack that required
hospitalization and bedrest for the better part of the month.
Ms. Burns took leave under the Family Medical Leave Act
(FMLA), which ran concurrently with her paid sick and annual
leave available under WVDEA policy. Ms. Burns returned to
work in April 2013, but was having trouble breathing while
walking. Although Ms. Burns never made a formal request for
an accommodation at that time, a fellow employee would meet
Ms. Burns with a wheelchair at the loading dock, where her
husband dropped her off for work, and take her to her office.
Ms. Burns used the wheelchair throughout the day as
necessary, and an employee would take her back to the loading
dock at the end of the work day.
her adult-onset respiratory illness and poor lung capacity,
Ms. Burns's physician directed her to attend pulmonary
rehabilitation/respiratory therapy twice a week beginning in
April 2013. According to Ms. Burns, the therapy began at 1:00
p.m. and lasted until 3:30 or 4:00 p.m., and was offered only
on Tuesdays and Thursdays. Ms. Burns utilized her accrued
sick and annual leave to attend the appointments. In August
2013, when her paid leave was nearly depleted, Ms. Burns
wrote a letter to Randall Reid-Smith, the Commissioner of the
Division of Culture and History. The letter provides, in
Part of my recovery includes Pulmonary Rehabilitation twice a
week during the work week. . . . I have been participating in
this treatment measure since April 2013. These sessions are
not available on any other days than Tuesdays and Thursdays.
I will be attending Pulmonary Rehabilitation twice weekly
through at least January 2014 or later. This places me out of
the office 7.5 hours during an average work week. On July 9,
2013, several accommodation suggestions from my family
physician, Dr. Ashish Sheth, M.D., were submitted to the
agency as part of FMLA documentation. Among these included a
modified/flexible schedule and working from home during times
of illness. I am requesting to perform some of my duties from
home; specifically, at this time, proofreading and editing
duties. . . . I am requesting that I be allowed to work on
the proofreading and editing tasks from home for a few hours
(3 to 6 hours) each weekend. . . . As are the standard
operating procedures of the agency, I would request that any
hours worked on the weekend be applied towards time that I
will be out of the office the next week. I am requesting this
accommodation under Title I of the Americans with
Disabilities Act . . . .
Reid-Smith responded by letter dated September 9, 2013, and
requested information and a medical release so that he could
contact Ms. Burns's physicians and gather more
information in order to make a more informed decision. Ms.
Burns promptly cooperated and was also required to fill out
an Americans with Disabilities Act (ADA) Request for
Accommodation Form. To complete the form, Ms. Burns was asked
to identify which job function she was having difficulty
performing. She responded that she was "unable to work
the set work schedule on Tuesdays and Thursdays due to
medically necessitated and doctor ordered rehabilitation
because of [her] disability." When asked what, if any,
employment benefit she was having trouble accessing, Ms.
Burns responded, in pertinent part,
[t]he Division modifies the schedules of employees on a
regular basis and allows other employees to routinely attend
conferences, do site visitations and other work related
duties on the weekend. Not being allowed to have a modified
schedule, when the request would cost nothing and would
benefit both the Division and me, is denying me the same
benefit of similarly situated employees.
when asked to describe the accommodation she was requesting,
Ms. Burns responded that she was requesting a modified
schedule, specifically that she be permitted to work from
home approximately three to six hours on the weekend to make
up for some of the hours she missed during the work week to
attend her respiratory therapy appointments.
Reid-Smith then sent a letter to Ms. Burns's physician,
Dr. Nasim Sheikh, asking six questions relating to the
requested accommodation. These questions and Dr. Sheikh's
responses are as follows:
[Question 1:] What are the limitations for Mrs. Burns at this
[Answer:] The patient has severe bronchial asthma. She is
allergic to house dust mites DP & DF. Long term exposure
can exacerbate her bronchial asthma.
[Question 2:] How will these limitations affect her job
[Answer:] I do not think that her ailment would affect her
job performance as her work is mostly limited to mental
[Question 3:] What specific job tasks are problematic as a
result of these limitations?
[Answer:] Those jobs will only be problematic if she has to
undergo strenuous physical activity or exposure to chemicals,
allergens or irritants.
[Question 4:] How long will she need accommodations?
[Answer:] She will need accommodations until she improves her
[Question 5:] Are there any alternatives for therapy that
will accommodate the employee's work schedule?
[Answer:] She is on immunotherapy once a week at this time
along with anti-inflammatory topical medicine. Topical
anti-inflammatory medications are the standard treatment.
[Question 6:] Is Mrs. Burns permanently unable to perform
[Answer:] It cannot be determined at this time as she is
Reid-Smith testified that Ms. Burns was aware that her
condition did not require an accommodation as of October
2013, based on these responses from Dr. Sheikh. But, he
concedes that he, himself, did not formally respond to the
request for an accommodation to inform her that it was
January 9, 2014, Petitioner exhausted her paid sick and
annual leave. That same day, Kanawha County's water
supply became contaminated due to a chemical leak. Ms. Burns,
having heard that there was an odor associated with the
contaminated water, took unpaid leave from work on Friday,
January 10, 2014. Ms. Burns returned to work on Monday,
January 13, 2014.
result of the contaminated water, West Virginia American
Water developed a written, publicized protocol dividing
affected areas into sectors with instructions as to when
particular government agencies, businesses, and residences
should flush their pipes. January 13, 2014-the day Ms. Burns
returned to work-was the day her employer was directed to
flush its pipes. Ms. Burns noticed a faint odor that
afternoon, and when she returned to work the following day,
she had another asthma attack. She was treated in the
emergency room and released later that day, but remained off
work after she was released.
Although her paid sick and annual leave had been depleted as
of January 9, 2014, Ms. Burns was approved for emergency
medical leave beginning on January 14, 2014. She also was
approved for the WVDEA's leave donation program, which
provided her in excess of eighty additional hours of paid
leave. But, Ms. Burns never returned to work. On March 11,
2014, she sent a letter to Commissioner Reid-Smith resigning
her position, citing that "to continue to work in this
environment, without any ADA accommodation, places my health
at very substantial risk." She claimed that she was
constructively discharged, given ...