Strawderman v. Creative Label Co., Inc., No. 24119.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 508 S.E.2d 365,203 W.Va. 428
• Parties: Sue STRAWDERMAN, Plaintiff Below, Appellant, v. The CREATIVE LABEL CO., INC., Defendant Below, Appellee.
• Decision Date: 16 July 1998
• Docket Number: No. 24119.

508 S.E.2d 365
203 W.Va. 428

Sue STRAWDERMAN, Plaintiff Below, Appellant,
v.
The CREATIVE LABEL CO., INC., Defendant Below, Appellee

No. 24119.

Supreme Court of Appeals of West Virginia.

Submitted March 17, 1998.

Decided July 16, 1998.

Jack S. Kaplan, Allan N. Karlin, Morgantown, West Virginia, Attorneys for Appellant.

Robert M. Steptoe, Jr., Jill Oliverio Florio, Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee.

PER CURIAM:¹

This is an appeal by Sue Strawderman from an order of the Circuit Court of Marion County granting Ms. Strawderman's former employer, The Creative Label Company, Inc., summary judgment in an action brought by Ms. Strawderman under the West Virginia Human Rights Act, West Virginia Code § 5-11-1, et seq. (The Act). In bringing the action, Ms. Strawderman claimed that she was a handicapped person within the meaning of the Act, that The Creative Label Company had failed to make

508 S.E.2d 366

a reasonable accommodation for her as required by the Act, and that The Creative Label Co., Inc., wrongfully fired her. The circuit court concluded that Ms. Strawderman was not a handicapped person and that The Creative Label Company had attempted to provide her with reasonable accommodation for her purported disability. The circuit court, therefore, concluded that Ms. Strawderman's firing was appropriate and granted The Creative Label Company summary judgment. On appeal, Ms. Strawderman claims that the circuit court erred in granting summary judgment

I.

FACTUAL AND PROCEDURAL HISTORY

On July 29, 1992, OSHA conducted an inspection of the plant of The Creative Label Co., Inc. (Creative Label) where Sue Strawderman (Ms. Strawderman) had been employed since May 3, 1982. The inspection resulted in a citation alleging, among other things, that Creative Label was failing to take appropriate steps to protect the hearing of its employees in certain areas of its plant. As a result, on February 1, 1994, Creative Label initiated a policy requiring its employees to wear ear plugs throughout the entire plant, rather than merely in the areas which had been of concern to OSHA.

On February 8, 1994, Ms. Strawderman complained about the new policy to her union representative, and the union representative brought her complaint to the attention of Creative Label. Ms. Strawderman argued that the use of "ear plugs" aggravated a migraine headache condition from which she suffered. On February 19, 1994, Ms. Strawderman visited Dr. Stiller who concluded that she could not wear "ear plugs" since, medically, this hearing protection device would trigger her migraine headaches.

When Creative Label learned of Dr. John Stiller's finding, it questioned whether this meant that Ms. Strawderman was precluded from wearing hearing protection device at all, or whether she was only precluded from wearing "ear plugs." Upon discussing this question with Ms. Strawderman, Ms. Strawderman noted that she had been taking a break to lie down and/or take medication whenever her migraines became too severe, and she stated that she could wear hearing protection if Creative Label would accommodate her by allowing her to continue this practice. There is evidence in the case that a company representative knew, in fact, that she had taken such breaks, without any apparent effect on her production, and, as a consequence, Creative Label indicated that it would consider this proposed accommodation.

On February 22, 1994, Ms. Strawderman was observed working without "ear plugs." When confronted, she refused to use "ear plugs" until Creative Label decided whether she would be allowed to take breaks. She also refused to consider wearing an alternative type of hearing protection device. At this point, Ms. Strawderman was told that her proposal to take breaks at the outset of a migraine was not an acceptable accommodation. She was also told that she had to put on some kind of hearing protection devices or leave the plant. Ms. Strawderman refused to use hearing protection and was suspended from work for three days.

On February 25, 1994, Ms. Strawderman returned to work. She brought with her a note from Dr. Stiller which stated that compelling her to wear "any type of ear protection" would trigger severe migraine headaches. Creative Label then decided to terminate her employment, since she refused to wear alternative types of hearing protection devices and since Creative Label found her proposal to take breaks at the...