Roger D. Forman
Stephen A. Weber
Forman & Crane, L.C. Jill D. Sinatra
Ellen F. Golden Kay Casto & Chaney PLLC
Golden Law Office, PLLC Charleston, West Virginia
Charleston, West Virginia Attorneys for the Appellee
Attorneys for the Appellant
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
2. 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., Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996).
3. An employer's duty to accommodate an individual with a disability
under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq., does not require
the employer to eliminate an essential function of a job.
Frederick Williams, who is an individual with a disability, appeals a verdict in favor of his employer, Charleston Area Medical Center, in his action claiming failure to accommodate under the West Virginia Human Rights Act. At trial, the jury found that climbing a ladder and working overhead were essential functions of the job held by Mr. Williams prior to his disability. Because we find that an employer may not be required to eliminate an essential function of a job as a means of accommodation, and the evidence was undisputed that Mr. Williams was unable to perform these essential functions of the job in question, we affirm the judgment in favor of the employer.
On June 30, 1998, Mr. Williams' lawyer wrote a letter to CAMC requesting
that Mr. Williams be returned to work as a Maintenance Mechanic II, with the
accommodations that he not be required to climb ladders or look up. CAMC apparently did
not respond to this, or a subsequent similar request. In June, 1999, Mr. Williams long-term
disability expired. Under CAMC policy, Mr. Williams had 30 days from the termination of
his long-term disability within which to secure a position with CAMC or else be terminated
as a CAMC employee. By letter dated June 7, 1999, CAMC notified Mr. Williams that his
long-term disability benefits had been terminated, effective June 11, 1999, and requested that
he contact CAMC to discuss his employment options if he planned to return to work at
CAMC within thirty days. By letter dated June 29, 1999, Mr. Williams' lawyer informed
CAMC that Mr. Williams desired to return to his job of Maintenance Mechanic II, and asked
CAMC to make accommodations for his disability so that he would be able to return to his
former post. After extending the thirty day period for Mr. Williams' return to work on two
occasions, CAMC ultimately placed Mr. Williams into a lower paying position of Central
On May 5, 1999, Mr. Williams filed suit against CAMC alleging disability
discrimination. Mr. Williams claimed that CAMC failed to give him any accommodation for
his disability and also failed to follow its own policies as to accommodations for disabled
employees. A jury trial was had. After the close of the evidence and the jury instructions,
the jury retired with a special verdict form that was provided over Mr. Williams' objection.
The jury concluded that Mr. Williams was a qualified person with a disability,
however, the jury also found that climbing a ladder and working overhead were essential
functions of the Maintenance Mechanic II position. Therefore, judgment was entered on
behalf of CAMC. Mr. Williams then filed a MOTION FOR NEW TRIAL AND/OR TO
AMEND VERDICT PURSUANT TO RULE 59 (a) and (e) WEST VIRGINIA RULES OF
CIVIL PROCEDURE. In his motion, Mr. Williams complained that the jury's verdict was
inconsistent and/or contrary to law. By order entered May 22, 2002, the Circuit Court of
Kanawha County denied Mr. Williams' motion. The circuit court concluded that the special
verdict form was not inconsistent in light of the criteria articulated in Skaggs v. Elk Run Coal
Co., 198 W. Va. 51, 479 S.E.2d 561 (1996).
(See footnote 2)
It is from the May 22, 2002, order of the
Circuit Court of Kanawha County that Mr. Williams now appeals.
With regard to our standard for reviewing a circuit court's ruling on a motion
for a new trial, we have explained that
[a]s a general proposition, we review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard.
In re State Public Building Asbestos Litigation, 193 W. Va. 119,
454 S.E.2d 413 (1994). . . . Thus, in reviewing challenges to
findings and rulings made by a circuit court, we apply a
two-pronged deferential standard of review. We review the
rulings of the circuit court concerning a new trial and its
conclusion as to the existence of reversible error under an abuse
of discretion standard, and we review the circuit court's
underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995). We have also explained that,
[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Andrews v. Reynolds Mem'l Hosp., Inc., 201 W. Va. 624, 630, 499 S.E.2d 846, 852 (1997) (quoting Syl. pt. 4, Sanders v. Georgia-Pac. Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976) (additional citations omitted)). (See footnote 3)
With due consideration for the foregoing standards, we proceed to the substantive issue before us.
Mr. Williams asserts that the circuit court abused it's discretion in allowing the
special verdict form to go to the jury, because it conflicted with the instructions provided to
the jury, did not include all the elements of a claim for failure to accommodate, and was
contrary to the law and regulations regarding disability discrimination and reasonable
(See footnote 4)
We disagree. We find that this appeal can be resolved by answering one
simple question of law. Must an employer provide an accommodation for an essential
function of a job?
Pursuant to the West Virginia Human Rights Act,
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the state of West Virginia or its agencies or political subdivisions:
(1) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind or disabled . . . .
W. Va. Code § 5-11-9(1) (1998) (Repl. Vol. 2002) (emphasis added). Thus, the Human Rights Act itself recognizes that a blind or disabled person must be able and competent to perform the services required. This Court explained what is meant by able and competent in Ranger Fuel Corp. v. West Virginia Human Rights Commission, wherein we stated that [t]he 'able and competent' requirement means that an employer has the right not to hire or to fire employees who are unable to perform a job because either they are generally unqualified or they have a handicap that impedes job performance, subject to the 'reasonable accommodation' requirement. 180 W. Va. 260, 265, 376 S.E.2d 154, 159 (1988) (emphasis added) (footnote omitted).
The reasonable accommodation requirement
referred to in Ranger Fuel is set out in the legislative regulations
promulgated by the Human Rights Commission to interpret and implement
the provisions of the West Virginia Human Rights Act. 6B C.S.R. § 77-1-1.1
(1994). Specifically, the regulations state: [a]n employer shall make
reasonable accommodation to the known physical or mental impairments of qualified
individuals with disabilities where necessary to enable a qualified individual with a disability to perform the
essential functions of the job. . . . 6B C.S.R. § 77-1-4.5 (1994) (emphasis added). Thus, it
appears from the plain language of the foregoing regulation that the purpose of requiring
reasonable accommodation is to enable a disabled individual to perform the essential
functions of the job in question. Indeed, the regulations go on to state
[e]ach individual's ability to perform a particular job must be assessed on an individual basis. An employer may refuse to hire or may discharge a qualified individual with a disability, even after reasonable accommodation, if the individual is unable to perform the essential functions of the job without creating a substantial hazard to his or her health and safety or the health and safety of others. However, any such decision shall be used upon the individual's actual abilities, and not upon general assumptions or stereotypes about persons with particular mental or physical disabilities.
6B C.S.R. § 77-1-4.7 (1994). Similarly, this Court has recognized that reasonable accommodation is intended to allow a disabled individual to fully perform the job's essential functions:
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.
Syl. pt. 1, Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d 561 (emphasis added).
Logically, then, if reasonable accommodation is for the purpose of enabling a disabled individual to perform the essential functions of a job, an employer may not be required to eliminate an essential function of a job as a means of fulfilling its duty to provide reasonable accommodation. Though up to now we have not announced it has a holding, this concept has previously been recognized by this Court. In footnote 9 of Skaggs, we observed that [t]he duty to accommodate does not require employers to retain employees who cannot fulfill the essential functions of the job. The law protects only 'qualified' individuals with disabilities who, with or without reasonable accommodation, can perform the essential nature of the job. 198 W. Va. at 65, 479 S.E.2d at 575 (citing Ranger Fuel). See also Coffman v. West Virginia Bd. of Regents, 182 W. Va. 73, 76 n.10, 386 S.E.2d 1, 4 n.10 (1988) (the uncontradicted testimony and medical evidence established conclusively that Coffman could not perform the essential lifting and bending requirements of her job. We therefore find that as a matter of law Coffman, even with reasonable accommodation, was unable to perform the duties of the job for which she was hired and the appellants were not required to retain her in that position.), overruled on other grounds by Skaggs. (See footnote 5) Cf. Syl. pt. 6, in part,
Hosaflook v. Consolidation Coal Co., 201 W. Va. 325, 497 S.E.2d 174 (1997) (An
individual who can no longer perform the essential functions of a job either with or without
reasonable accommodation and, thus, who is receiving benefits under a salary continuance
plan which does not provide otherwise, is not performing the essential functions of a job by
being a benefit recipient. . . .).
In a similar context, other courts have reached the
same conclusion with regard to the Americans with Disabilities Act. (See
footnote 6) See Shannon v. New York
City Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (commenting that [a]
reasonable accommodation can never involve the elimination of an essential
function of a job.) (citation omitted); Dropinski v. Douglas County,
Neb., 298 F.3d 704, 709-10 (8th Cir 2002) ('While job
restructuring is a possible accommodation under the ADA, this court has held
that an employer need not reallocate or eliminate the essential functions of
a job to accommodate a disabled employee' (quoting Fjellestad
v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir.1999))); Matthews
v. The Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001) (The idea of accommodation
is to enable an employee to perform the essential functions of his job; an employer is not
required to accommodate a disabled worker by modifying or eliminating an essential function
of the job.).
Based upon the prior acknowledgments of this Court, and the foregoing
authority, we now expressly hold that an employer's duty to accommodate an individual with
a disability under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq., does
not require the employer to eliminate an essential function of a job.
In the case sub judice, it was undisputed that Mr. Williams was not able to
climb a ladder or work above his head. The only accommodation he sought was to have
these functions eliminated from his duties as a Maintenance Mechanic II. The special verdict
form asked the jury [d]o you find, from a preponderance of the evidence, that climbing a
ladder and working over your head are essential functions of the Maintenance Mechanic II
position? The jury concluded that climbing a ladder and working over head were essential
functions of the Maintenance Mechanic II position. Once the jury made this determination,
there was no need for their inquiry to proceed further. See, e.g., Davidson v. America Online,
Inc., 337 F.3d 1179, 1192 (10th Cir. 2003) (We note that should a jury decide that
voicephone experience is an essential function, the inquiry ends there, because the reasonable
accommodation requested by Davidson is to eliminate that essential function, which an
employer is not required to do.) (citations omitted).
(See footnote 7)
Consequently, we find that the circuit
court did not abuse its discretion in submitting the special verdict form to the jury, and
further committed no error in denying Mr. Williams' motion for a new trial.
Civil Procedure 974-75 (2002) (discussing
Rule 59(e) and stating Rule 59(e) may be used by a party who seeks
to change or revise a judgment entered as a result of a motion to dismiss
or a motion for summary judgment, and also stating Rule 59(e)
may be invoked to alter or amend a judgment in a bench trial. However,
it has been held by the Supreme Court that upon a motion to alter or amend
a judgment under Rule 59(e), a trial court may not enter a new judgment
in an action in which there has been a trial by jury. A new judgment entered
by the trial court in an action in which there has been a trial by jury
will be set aside on appeal. (footnotes omitted)). To obtain the
type of relief he sought from the circuit court, Mr. Williams should have
filed a motion for judgment as a matter of law under Rule 50 of the West
Virginia Rules of Civil Procedure.
requested, consider transferring
the employee to fill the open position. To the extent that Coffman v.
West Virginia Board of Regents, 182 W. Va. 73, 386 S.E.2d 1 (1988),
is inconsistent with the foregoing, it is expressly overruled.).