Coffman v. West Virginia Board of Regents

386 S.E.2d 1, 182 W. Va. 73

• Court: West Virginia Supreme Court
• Decided: September 12, 1988
• Docket: 17904
• Status: Published

Opinions

BROTHERTON, Justice:

The West Virginia Board of Regents appeals an order of the Circuit Court of Mo-nongalia 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 appellants¹ 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 Coff-man previously recommended that Coff-man 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 coworker 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 Mononga-lia 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 Coff-man 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— § 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-ll-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 referred] to making the particular job, not another job for which the handicapped person was not hired, accessible to handicapped persons.” 598 F.Supp. at 55.

Similarly, in Carty v. Carlin, 623 F.Supp. 1181 (D.Md.1985), the United States District Court for the District of Maryland considered whether the Postal Service violated the Rehabilitation Act by discharging a laborer/custodian employee because of a physical and mental handicap. The district court rejected a recommendation that the employee “be reinstated to the position of distribution clerk or any other position which he was able to perform in light of his physical and mental handicap.” Id. at 1183. Reasoning that “[preferential reassignment for handicapped employees was not intended by the Rehabilitation Act,” the court concluded that “[examination of the regulation lends [sic] to the ultimate conclusion that the duty to reasonably accommodate only contemplates accommodation of a qualified employee’s present position. It does not include a requirement to reassign or transfer an employee to another position.” Id. at 1188. See also Wimbley v. Bolger, 642 F.Supp. 481 (W.D.Tenn.1986) (reasonable accommodation does not require federal agency to transfer handicapped employee from job for which he was employed to some other position to provide him work he can perform); Bento v. I.T.O. Corp., 599 F.Supp. 731, 745 (D.R.I.1984) (Rehabilitation Act does not obligate companies to rewrite job descriptions).¹¹

Most recently, in Carter v. Tisch, 822 F.2d 465 (4th Cir.1987), the United States Court of Appeals for the Fourth Circuit considered whether the Postal Service was required to accommodate a mail carrier, handicapped by asthma, by assigning him to a permanent light duty position. Citing Alderson, Carty, and Wimbley, the Fourth Circuit observed that “[t]he case law is clear that if a handicapped employee cannot do his job, he can be fired, and the employer is not required to assign him to alternative employment.”¹² Id. at 467. The court concluded that the employee “was incapable of performing the full duties of a laborer-custodian, and the government had no obligation to provide him with a different job.” Id. at 469.¹³

We find the reasoning of these courts persuasive and conclude that 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.¹⁴ Where a handicapped employee can no longer perform the essential functions of that position, reasonable accommodation does not require the employer to reassign him to another position in order to provide him with work which he can perform. Turning to the facts of the present case, when Coffman was no longer able to perform the essential duties of a Custodian I, the appellants placed her in the unit position. While assigning Coffman to the unit position doing only the “high” work provided her with work that she could perform, it was a position unique to Coffman’s circumstances and outside the normally assigned duties of any job classification at the University. Because an employer is not required to create a special job for an employee who cannot do the one for which she was hired, we hold that the appellants were not obligated to retain Coffman in the unit position where she did only the “high work.¹⁵

Having concluded that the appellants did not discharge Coffman in violation of the West Virginia Human Rights Act, we must determine whether the lower court erred in failing to direct a verdict in favor of the appellants. This Court has established several guidelines for determining under what circumstances a directed verdict is appropriate. For example, a court may properly direct a verdict for the defendant where, “if the case were permitted to go to the jury upon the plaintiff's evidence, the same would not justify a verdict for the plaintiff, and if such a verdict were returned, the same would have to be set aside.” Porter v. South Penn Oil Co., 125 W.Va. 361, 24 S.E.2d 330, 331 (1943). Similarly, “[w]hen the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties, so that a verdict adverse to such party cannot stand, the court should direct a verdict in his favor.” Syl. pt. 6, Lightner v. Lightner, 146 W.Va. 1024, 124 S.E.2d 355 (1962). However, this Court has recognized that rules concerning when a verdict should be directed in favor of one of the parties “are at best general rules which do not provide a specific formula, rather they provide broad guidelines on which the evidence must invariably be reviewed by both trial courts and appellate courts.” Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260, 265 (1973).

As stated above, the evidence in this case can lead to no conclusion other than that, despite reasonable accommodation by the appellants, Coffman was unable to perform her job as a Custodian I. When the trial court failed to reach this conclusion as a matter of law, the jury was improperly permitted to consider Coffman’s reassignment to the unit position where she did only the “high work” as reasonable accommodation. Because we find that reasonable accommodation does not include assignment to a new or different job, we conclude that the lower court erred in failing to direct a verdict for the appellants.¹⁶

For the foregoing reasons, the judgment of the Circuit Court of Monongalia County is reversed, the verdict is set aside, and the case is remanded with instructions to enter judgment in favor of the appellants.

Reversed and remanded.

1 . Douglas A. Clark and Marc R. Connelly are also appellants. At the time of this action, Mr. Connelly was Coffman's immediate supervisor in the housekeeping department at the West Virginia University Hospital and Mr. Clark was an associate supervisor in the housekeeping department.

2 . During this period, Coffman was examined by another orthopedist, who advised that she lift no more than ten pounds and avoid prolonged or repeated bending.

3 . W.Va.Code § 5-ll-9(a) (1987) provides that it shall be an unlawful discriminatory practice “[f]or 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 ... handicapped_”

4 . For convenience, throughout this opinion the regulations are cited as "Regulation.” Although not raised by the parties to this case, we note that the regulations became effective on August 1, 1982, approximately six months after the appellants terminated Coffman’s employment.

5 . Regulation 2.01, following Code § 5-ll-3(t), defines "handicap" as "any physical or mental impairment which substantially limits one or more of a person’s major life activities.” Regulation 2.02 defines “physical impairment” as "any physiological disorder or condition or cosmetic disfigurement or anatomical loss or abnormality affecting one or more of the following body systems: neurological, musculoskele-tal, special sense organs, respiratory_" “Major Life Activities” include employment. See Regulation 2.05. Handicap discrimination law in West Virginia is derived largely from the federal Rehabilitation Act and the accompanying regulations. See The Rehabilitation Act of 1973, 29 U.S.C. § 701-796Í (1982); 45 C.F.R. 84.3, 84.11, 84.12 (1987).

6 . See 45 C.F.R. 84.3(k) (1987).

7 . “Reasonable accommodations” include, but are not limited to:

(a) Making the worksite accessible to and usable by handicapped persons;

(b) Modification of equipment or tools so they can be used by a handicapped person;

(c) Job restructuring and modified work schedules;

(d) Alteration of the amount or methods of training;

(e) Acquisition of adaptive aids or devices;

(f) Reasonable accommodation should include the preparation of fellow workers for the new employee, to obtain their understanding of the handicapping limitations and their cooperation in accepting other reasonable accommodations for the new employee.

Regulation 4.03.

8 . Cf. School Bd. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Discussing the inquiry to be made to determine whether, in the employment context, an individual is an "otherwise qualified person” as defined in 45 C.F.R. § 84.3(k) (1985), the Arline Court stated: "[W]hen a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped person to perform those functions.” 107 S.Ct. at 1131 n. 17. Similarly, in Trimble v. Carlin, 633 F.Supp. 367 (E.D.Pa. 1986), the defendant argued that "a person is not ‘qualified’ unless he can perform all of the duties of the position in question without any type of modification thereof." 633 F.Supp. at 370. The Trimble court rejected the defendant’s argument, stating that "the Court is obliged to review the duties of a mail handler to determine whether Trimble can perform the essential functions of the position with ‘reasonable accommodation’ to his physical limitations. If so, he is a ‘qualified handicapped person.”’ Id.

9 . The Custodian I job description lists the following principal duties:

1. Sweep, mop, scrub, dust, wash, and polish floors, stairs, furniture, walls, windows, radiators, ventilators and other items.

2. Clean and disinfect bathroom floors, fixtures, stalls, and other plumbing facilities.

3. Clean and disinfect beds and other furniture or equipment in hospital rooms and wards.

4. Remove trash; replace toilet supplies; replace accessible light bulbs; may lock and unlock rooms for tenants or authorized staff if action is approved by supervisor.

5. Change linens, draperies, and make beds as needed.

6. When assigned, perform simple mending repairs of linen and upholstery.

7. May move, set-up and take down lightweight displays, chairs and equipment.

8. Clear water, ice or snow from walks, steps and entrances using brooms, shovels or abrasives.

9. Requisition parts and supplies and recommend material needs.

10. Perform work in neat, orderly manner and within established building and safety codes.

11. Maintain clean work area.

12. Perform other related duties as assigned for emergencies or training purposes.

10 .When Coffman returned to work after injuring her back, the appellants relieved her of garbage handling duties, moved her from location to location within the hospital, and instructed her to avoid lifting and prolonged bending. Despite these adjustments and modifications, however, Coffman still complained of back pain and subsequent medical evaluations resulted in recommendations that she be permanently separated from the housekeeping and dietary departments. While modifications such as long-handled tools may have enabled Coff-man to perform duties which required bending, we cannot envision, and Coffman has not suggested, any type of reasonable modification which would have accommodated her lifting restrictions. Thus, 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 Coff-man, 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. “[Wjhere all of the evidence, fairly considered, points to one conclusion only, a question of law is presented which is to be answered by the court, not the jury." Beneficial Finance Co. v. Collins, 150 W.Va. 655, 149 S.E.2d 221, 227-28 (1966). In so holding, we do not attempt to delineate the parameters of reasonable accommodation. Such a determination must be made on a case-by-case basis.

11 . Cf. School Bd. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). In Arline the Court concluded that a school teacher suffering from tuberculosis was a "handicapped individual” within the meaning of the Rehabilitation Act. However, in dicta the Court commented on the issue of alternative employment as reasonable accommodation of an employee’s handicap. The Court stated:

Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.

107 S.Ct. at 1131 n. 19 (citations omitted).

12 . In Carter a collective bargaining agreement required five years service as a prerequisite for permanent light duty eligibility. 822 F.2d at 466. The mail carrier had not served five years. Id. Although the collective bargaining agreement did not form the basis of the court’s decision, the Fourth Circuit noted that the Postal Service’s justification for refusing reassignment was made stronger in this case since it was bound by the agreement. Id. at 467.

13 . But see Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec.Pan.1986). In Ignacio, the Special Panel, applying an "any reasonable basis” standard, upheld an EEOC decision which required a job transfer as a "reasonable accommodation.” 30 M.S.P.R. at 486. We, however, like other courts which have considered it, reject the position taken by the EEOC in Ignacio. See, e.g., Carter v. Tisch, 822 F.2d at 468.

14 . See Regulation 4.03(2). Regulation 4.03(2) provides that "[a]n employer shall make reasonable accommodation to the known physical and mental impairments of qualified handicapped applicants or employees where necessary to enable a qualified handicapped person to perform the essential functions of the job." (emphasis added). We, however, note that ”[a]n employer shall not be required to make such accommodation if s/he can establish that the accommodation would be unreasonable because it imposes undue hardship on the conduct of his or her business.” Id.

15 . In an amicus curiae brief the West Virginia Advocates for the Developmentally Disabled, the West Virginia Trial Lawyers Association, and the West Virginia Chapter of the National Lawyer’s Guild argue that because of the sheer size of the West Virginia University custodian work force and the variety of activities performed by custodians, permanent reassignment to the unit position involving only “high” work was not unreasonable. The parties argue that, unlike an employer with only a handful of employees, West Virginia University, one of the State's largest employers, was in a better position to accommodate Coffman by placing her in a custodial position different from the one for which she was hired. We disagree. Regardless of the plethora of duties which may be classified under a particular job title, reasonable accommodation does not require an employer, irrespective of its size or hiring capabilities, to create a new position within the job description consisting only of those duties which the handicapped employee can perform. Therefore, although the Custodian I job description may have encompassed the duties involved in the unit position to which Coffman was assigned, the appellants were not required to retain her in that position.

16 . No party has challenged the fact and we, therefore, acknowledge that Coffman was handicapped as defined by West Virginia law. We, however, note that she became handicapped as a result of an injury sustained on the job during the course of her employment. In this regard, we are concerned as to why Coffman did not pursue a claim for workers’ compensation benefits beyond the 30-day period of temporary total disability. The appellants do not raise the issue of workers' compensation and we, therefore, do not address it. We note that the intent of the legislature inherent in the enacting of the handicapped provisions of the West Virginia Human Rights Act was to assure equal opportunities for the handicapped in housing and employment. W.Va.Code § 5-11-2. Thus, we cannot conclude that the legislature intended the -handicapped provisions of the West Virginia Human Rights Act as an alternative source of compensation for injuries sustained on the job.