Coffman v. West Virginia Bd. of Regents, 17904
| Decision Date | 02 June 1988 |
| Docket Number | No. 17904,17904 |
| Citation | 386 S.E.2d 1,182 W.Va. 73 |
| Court | West Virginia Supreme Court |
| Parties | , 52 Empl. Prac. Dec. P 39,731, 57 Ed. Law Rep. 277, 2 A.D. Cases 330 Dorothy COFFMAN v. WEST VIRGINIA BOARD OF REGENTS, A Corporation, Douglas A. Clark, et al. |
Syllabus by the Court
1. A "qualified handicapped person" under the West Virginia Human Rights Act and the accompanying regulations is one who is able and competent, with reasonable accommodation, to perform the essential functions of the job in question.
2. Under the West Virginia Human Rights Act and the accompanying regulations, "reasonable accommodation" requires only that an employer make reasonable modifications or adjustments designed as attempts to enable a handicapped employee to remain in the position for which he was hired. Where a handicapped employee can no longer perform the essential functions of that position, reasonable accommodation does not require an employer to reassign him to another position in order to provide him with work which he can perform.
Susan S. Brewer, William E. Galeota, Steptoe & Johnson, Clarksburg, for W.Va. Bd. of Regents et al.
Allen N. Karlin, Morgantown, for W.Va. Chapter of Nat. Lawyers Guild.
William F. Byrne, Morgantown, amicus curiae, for W.Va. Advocates for Developmentally Disabled and W.Va. Trial Lawyers Assoc.
Jacques R. Williams, Hanstead & Hamstead, Morgantown, for Dorothy Coffman.
The West Virginia Board of Regents appeals an order of the Circuit Court of Monongalia County denying the Board's motion to set aside a jury verdict in favor of the appellee, Dorothy Coffman. In the action below, Coffman claimed that she was handicapped as a result of a back injury and that the appellants 1 had wrongfully terminated her employment at West Virginia University Hospital because of that handicap. For the reasons set forth below, we reverse the judgment of the Circuit Court of Monongalia County and remand with instructions to enter judgment in favor of the appellants.
Dorothy Coffman was employed as a Custodian I at the West Virginia University Hospital in Morgantown, West Virginia. In October, 1980, Coffman injured her back while emptying garbage cans. During the months following the injury, Coffman suffered back pain which interfered with her ability to perform the duties of her job. In June, 1981, Coffman submitted to her supervisors the unsolicited reports of two physicians who recommended that Coffman avoid activities which required heavy lifting. One of the physicians, an orthopedist, concluded that Coffman was temporarily disabled. Coffman then missed work the month of July, 1981, during which time she received temporary total disability benefits from workers' compensation. 2 Coffman's supervisors then directed her to Dr. Ed Morgan, Medical Director of University Health Service at West Virginia University, for a more detailed evaluation of her medical problem and for a recommendation of job limitations. Dr. Morgan concluded that Coffman was "okay for light work; can lift 10-15 lbs."
Consistent with these medical recommendations, when Coffman returned to work in August, 1981, she was relieved of garbage handling duties and was moved from location to location performing other cleaning tasks. The appellants assert that two significant problems developed. First, there were complaints from other employees that Coffman was not pulling her share of the load. Second, Coffman continued to complain of back pain. The record indicates that on October 21, 1981, Coffman was sent to the emergency room at the hospital after reporting that her back had started to hurt again. On November 30, 1981, one of the orthopedists who had examined Coffman previously recommended that Coffman no longer work in either the housekeeping or dietary departments and that she not be placed in a position that required prolonged sitting.
On December 2, 1981, personnel management representatives, including Thomas Serpento, met with Coffman to discuss her employment situation. At that meeting, Coffman told Mr. Serpento that her back hurt continuously and indicated bending limitations. Mr. Serpento testified that a Custodian I is expected to work in a bending position approximately fifty percent of the time. Based on the information provided by Coffman and the medical recommendations from the physicians who had examined her, Mr. Serpento recommended to Coffman's supervisors that she be separated from the housekeeping and dietary departments with the understanding that a search would begin to see if another position for Coffman was available within the University structure.
By memorandum dated December 18, 1981, Coffman was assigned to work with another custodian on the unit position, which consisted of cleaning the individual patient rooms at the hospital. Coffman's position was unique, however, in that she did only the "high" cleaning while a co-worker did the "low" cleaning. The memorandum did not indicate whether this position was temporary or permanent. By letter dated January 14, 1982, Coffman's supervisor notified her that if a position were not found for her elsewhere, she would have to be terminated from her job as a Custodian I as of January 25, 1982. The search for another position was unsuccessful, and Coffman's employment was terminated on January 25, 1982.
On January 24, 1984, Coffman filed a complaint in the Circuit Court of Monongalia County charging that the appellants had wrongfully discharged her because of her handicap, i.e., back injury. In November, 1986, the case was tried before a jury which rendered a verdict in favor of Coffman in the amount of $55,600.00. The Board of Regents appeals, assigning as error the trial court's failure to direct a verdict in its favor. The appellants argue that the trial court erred in submitting the question of reasonable accommodation to the jury because Coffman was not a "qualified handicapped person" entitled to demand or expect reasonable accommodation.
The employment rights of the handicapped are governed by the West Virginia Human Rights Act, W.Va.Code § 5-11-1--s 5-11-19 (1987). The Act prohibits employment discrimination against an individual who is able and competent to perform the services required even with his handicap. 3 A "handicap" is "any physical or mental impairment which substantially limits one or more of an individual's major life activities." W.Va.Code § 5-11-3(t) (Supp.1987).
In 1982 the West Virginia Human Rights Commission promulgated regulations intended to interpret and implement the provisions of the West Virginia Human Rights Act relating to handicap discrimination. See Regulations, W.Va.HRC, W.Va.Code § 5-11, Series I, August 1, 1981. 4 In drafting the regulations, the West Virginia Human Rights Commission concluded that in determining whether an individual is entitled to protection under the West Virginia Human Rights Act, consideration must be given to whether "reasonable accommodation" by the employer would enable the individual to perform the services required. Specifically, Regulation 4.01 provides in part that "[n]o employer shall, on the basis of handicap, subject any qualified handicapped person to discrimination in employment...." 5 "As it relates to employment, a 'qualified handicapped person' is one who is able and competent, with reasonable accommodation, to perform the essential functions of the job in question." Regulation 4.02. 6 "Reasonable accommodations are adjustments or modifications to the work assignment or work environment to enable a handicapped person to fulfill employment responsibilities." Regulation 4.03(1). 7 I.
We address first the appellants' argument that Coffman was not a "qualified handicapped person" entitled to protection under the West Virginia Human Rights Act because she could not perform the essential functions of her job without reasonable accommodation. The appellants assert that the right to "reasonable accommodation" does not arise unless and until the plaintiff demonstrates sufficiently to the court that she can perform the job without regard to accommodations. We disagree. The language of Regulation 4.02 is clear: a qualified handicapped person is "one who is able and competent, with reasonable accommodation, to perform the essential functions of the job in question." (emphasis added). 8 Accordingly, Coffman was a qualified handicapped person if she was able and competent to perform the essential functions of a Custodian I with reasonable accommodation.
II.
As a threshold matter, the record shows that Coffman could not perform the essential functions of a Custodian I, 9 the job for which she was hired. 10 The question we address is whether "reasonable accommodation" required the appellants to retain Coffman doing only the "high" work in the unit position, the job created for Coffman when she could no longer perform the duties of a Custodian I. Recognizing the similar treatment of reasonable accommodation under the West Virginia Human Rights Act and the federal Rehabilitation Act, we review the decisions of the federal courts which have addressed the issue of alternative employment as reasonable accommodation for a handicapped employee who can no longer perform the job for which she was hired. For example, in Alderson v. Postmaster General, 598 F.Supp. 49 (W.D.Okl.1984), the United States District Court for the Western District of Oklahoma considered whether the Postal Service had violated the federal Rehabilitation Act by terminating a mail carrier after he suffered a knee injury on the job. The court recognized that under the relevant regulations, 29 C.F.R. § 1613.704(b), reasonable accommodation may include "job restructuring" but stated that nothing in the regulation required assignment to a different job. Rather, the court concluded that the "regulation clearly refer[red] to making the particular job, not another job for...
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