Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burns v. West Virginia Department of Education and Arts

Supreme Court of Appeals of West Virginia

November 20, 2019


          Submitted: October 15, 2019

          Appeal 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 Petitioner

          Molly Poe, Esq. Pullin, Fowler, Flannigan, Brown & Poe, PLLC Charleston, West Virginia Counsel for Respondent


         1. "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).

         2. "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).

         3. "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).


          4. "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).

         5. "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 (1992).

         6. "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).




         Petitioner Shirley Burns worked as a structural historian for the West Virginia Department of Education and the Arts (WVDEA)[1] 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).[2] 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. We affirm.


         Ms. 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.

         In 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.

          Due to 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 pertinent part,

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 . . . .

         Commissioner 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.

         And, 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.

         Commissioner 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 time?
[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 performance?
[Answer:] I do not think that her ailment would affect her job performance as her work is mostly limited to mental utilization.
[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 bronchial asthma.
[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 these functions?
[Answer:] It cannot be determined at this time as she is slowly improving.

         Commissioner 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 denied.

         On 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.[3] Ms. Burns returned to work on Monday, January 13, 2014.

         As a 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.