Davis v. Universal Cable Holdings, Inc. et al

Filing 73

MEMORANDUM OPINION AND ORDER granting 60 MOTION by Universal Cable Holdings, Inc. for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 11/6/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RONALD DAVIS,
Plaintiff,
v.

Civil Action No. 2:16-cv-06526

UNIVERSAL CABLE HOLDINGS, INC.,
d/b/a SUDDENLINK COMMUNICATIONS,
and JAMES KIZER,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Universal Cable Holdings, Inc.’s
(“Universal Cable”) motion for summary judgment, filed June 20,
2017.

I. Factual and Procedural Background

The following background is recounted from the record,
read in the light most favorable to the non-moving party,
plaintiff Ronald Davis (“Mr. Davis”).

Mr. Davis began working

as a Broadband Technician (“BBT”) I for Universal Cable on July
1, 2006. 1

(Davis Dep. 16-17.)

On July 11, 2012, Mr. Davis

underwent the first of twelve procedures related to recurring

1

Charter Communications was Mr. Davis’s original employer,
hiring him on October 31, 2005. (Mr. Davis Deposition (“Davis
Dep.”) 16.) Universal Cable acquired Charter Communications in
July, 2016. (Id. 17.)

pilonidal cysts, resulting in a series of leaves of absence,
(id. 35, 43-44): from July 11, 2012, through August 6, 2012,
(id. 43-44); from November 2, 2012, through December 2, 2012,
(id. 56); and from February 21, 2013, through July 22, 2013,
(id. 62-63).

Universal Cable did not pay Mr. Davis during these

periods, nor during any other leaves of absence.

(Duska Shane

Arbaugh Deposition (“Arbaugh Dep.”) 10.)
On August 1, 2012, near the end of his first leave of
absence, Universal Cable offered Mr. Davis a promotion to BBT
IV.

(Davis Dep. 27.)

As a BBT IV, Mr. Davis’s job duties

included carrying objects up to seventy-five pounds; climbing
ladders twenty-eight feet high; climbing poles using “gaffs,”
hooks, and a climbing belt; “crawling, bending, reaching, [and]
twisting” through “confined spaces;” and “standing 50-70% of the
time.”

(Universal Cable’s Ex. A, BBT IV Job Description; see

Davis Dep. 28-32.)
Sometime around March, 2013, Mr. Davis exhausted the
leave to which he was entitled under the Family and Medical
Leave Act and thereafter needed Universal Cable’s approval for
any additional leave or other accommodation.
78.)

(Davis Dep. 74-

About four months later, Dr. Zutshi, Mr. Davis’s pilonidal

cyst surgeon, recommended that Mr. Davis temporarily be placed
on light duty as a Warehouse Converter Technician (“WCT”).
2

(See

Mr. Davis’s Ex. B, Dr. Zutshi Letter of July 25, 2013.)
Universal Cable agreed, and Mr. Davis began light duty as a WCT
on July 25, 2013.

(See Davis Dep. 99-102.)

A WCT’s job functions include picking up objects from
the floor “to a height of [six] feet;” “lift[ing] up to 70
[pounds];” and “work[ing] in [a] stationary position seated and
standing for extended periods of time.”

(Universal Cable’s Ex.

A, WCT Job Description; see also Davis Dep. 102-04.)

As a

practical matter, Mr. Davis’s role as a WCT required him to lift
objects of about only five pounds to a height of about three
feet.

(Davis Dep. 103-04; 224-25.)
On November 11, 2013, Dr. Zutshi requested that Mr.

Davis remain on light duty for four to six more weeks, at which
point he could return to his duties as a BBT IV.

(Universal

Cable’s Ex. A, Dr. Zutshi Letters of September 20, 2013, and
November 11, 2013.)

Accordingly, Universal Cable extended Mr.

Davis’s light duty through December 22, 2013.
Cable Letter of November 14, 2013.)

(Id. Universal

On December 20, 2013, Mr.

Davis’s family physician, Dr. Dumm, recommended that Mr. Davis
continue light duty for two additional months.

(Mr. Davis’s Ex.

C; see also Davis Dep. 126-28.)
Mr. Davis continued working as a WCT, and sometime in
the following weeks Universal Cable evidently asked Dr. Dumm to
3

clarify Mr. Davis’s work restrictions.
Mr. Davis’s Ex. D.)

(See Davis Dep. 129-34;

On January 17, 2014, Dr. Dumm responded

that Mr. Davis “cannot sit” for more than thirty minutes;
“cannot lift” more than ten pounds; had difficulty lifting,
standing, and sitting; was in a high degree of pain; and was at
“high risk for cyst rupture.”
Davis Dep. 129-34.)

(Mr. Davis’s Ex. D; see also

Further, Dr. Dumm recommended that Mr.

Davis perform “no lifting” and be placed on light duty through
April 30, 2014.

(Mr. Davis’s Ex. D.)

Deciding that his

continued working as a WCT risked complicating his medical
condition, (see Arbaugh Dep. 9, 39-40, 67-69), on January 22,
2014, Universal Cable removed Mr. Davis from light duty and
placed him back on leave through April 30, 2014, (see Universal
Cable’s Ex. A, Universal Cable Letter of January 21, 2014; Mr.
Davis’s Ex. E; Davis Dep. 129-40).
During this leave period, Mr. Davis received cortisone
injections in and underwent arthroscopic surgery on both of his
knees.

(See Mr. Davis’s Exs. F-G; Universal Cable’s Ex. A, Dr.

Majestro Letters; Davis Dep. 143-59.)

On April 25, 2014, Dr.

Majestro, Mr. Davis’s knee surgeon, informed Universal Cable
that Mr. Davis would “remain continuously disabled” for four to
six weeks pending a follow-up appointment, scheduled May 6,
2014.

(Universal Cable’s Ex. A, Dr. Majestro Letter of April

4

25, 2014.)

After the May 6 appointment, Dr. Majestro cleared

Mr. Davis to return to work on May 12, 2014, provided he did no
climbing until his next re-evaluation on June 3, 2014.
Davis’s Ex. F.)

(Mr.

But on May 13, 2014, Dr. Majestro clarified

that he expected Mr. Davis to “return to work full[-time] after”
June 3.

(Universal Cable’s Ex. C, Dr. Majestro Letter of May

13, 2014.)

Universal Cable extended Mr. Davis’s leave

accordingly.

(Davis Dep. 157-58, 163; Arbaugh Dep. 9, 39-40,

67-69.)
However, at the June 3 follow-up appointment, and at a
subsequent June 18 appointment, Dr. Majestro found Mr. Davis
“continuously disabled” pending re-evaluation and failed to
provide a definite return-to-work date.
Ex. A, Dr. Majestro Letters.)

(See Universal Cable’s

Finally, after an appointment on

July 9, 2014, Dr. Majestro again found Mr. Davis “continuously
disabled” and requested extended leave pending his next reevaluation, scheduled August 12, 2014.

(Mr. Davis’s Ex. F.)

Instead, Universal Cable fired Mr. Davis on July 11, 2014,
stating as follows:
We have received your most recent doctor’s note dated
7/9/2014 stating that you cannot return to work and
indicating only that you will be re-examined at your
next appointment on 8/12/2014. . . . We cannot extend
your leave any further. Therefore, your employment
will be terminated effective 7/11/2014.

5

Your doctor has given no indication as to whether or
when you may be able to return to work in any
capacity, which means we cannot consider you for
reassignment to an open position. If you are able to
return to work at a later date, we invite you to
reapply for any open position for which you are
qualified. Currently, we have an open dispatch
position, and our website is continually updated
available job openings [sic]. We invite you to view
the [Universal Cable] job postings at
www.work4suddenlink.com.
If there are additional circumstances that may be
relevant, or that you may wish to bring to the
company’s attention regarding your absence or your
condition, please feel free to contact [Universal
Cable].
(Id. Ex. H.)

Mr. Davis did not formally apply for the

referenced dispatch position, nor did he formally apply for any
other jobs with Universal Cable.

(See Davis Dep. 172-74.)

He

told Universal Cable at some point after his knee surgery that
he could have worked either as a WCT or at dispatch and asked
that he be placed on light duty in one of those positions, but
Universal Cable told him that “they wanted [him] exclusively to
go back to the BBT IV position.”

(Id. 172.)

Universal Cable

notes that he in fact had not been released by his doctors for
any duty.
On August 15, 2014, Dr. Majestro cleared Mr. Davis to
return to work with no restrictions.

(Mr. Davis’s Ex. G.)

Dr.

Majestro’s internal notes from May – undisclosed to Universal
Cable - indicate that he would have released Mr. Davis to

6

perform light duty if he believed that light duty were available
and, alternatively, believed that long-term disability was Mr.
Davis’s other option.

(See id.)

Mr. Davis claims that

Universal Cable had an open WCT position from the time his light
duty ended until his firing, (id. 233-34), and the termination
letter indicates that there was an open dispatch position as
well, (Mr. Davis’s Ex. H).

Universal Cable disputes that it

then had an open WCT position.

(Arbaugh Dep. 6-7.)

Mr. Davis filed the complaint in this lawsuit in the
Kanawha County Circuit Court on July 1, 2016.

He claims that

Universal Cable discriminatorily discharged his employment based
on disability in violation of the West Virginia Human Rights Act
(“WVHRA”), West Virginia Code chapter 5, article 11.
¶ 30.)

(Complaint

The WVHRA proclaims that “[e]qual opportunity in the

area[] of employment . . . is hereby declared to be a human
right or civil right of all persons without regard to . . .
disability.”

W. Va. Code § 5-11-2 (2014).

Correspondingly, the

WVHRA provides that
[i]t shall be an unlawful discriminatory practice . .
. (1) [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 blind or
disabled[.]”
Id. § 5-11-9(1).

7

Universal Cable removed the action to this court on
July 20, 2016, invoking the court’s diversity jurisdiction.

On

June 20, 2017, Universal Cable filed the pending motion for
summary judgment.

II. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(a),
summary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
“As to materiality, . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (citing 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2725 (2nd ed. 1983)).
Regarding genuineness, “summary judgment will not lie
if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Id.

The moving party has the

initial burden of “‘showing’ - that is, pointing out to the

8

district court - that there is an absence of evidence to support
the nonmoving party's case.”

Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); see also Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013).

If the movant carries its burden, the non-

movant must demonstrate that “there is sufficient evidence
favoring [it] for a jury to return a verdict” in its favor.
Anderson, 477 U.S. at 249 (citation omitted); see also Dash, 731
F.3d at 311.

“Although the court must draw all justifiable

inferences in favor of the nonmoving party, the nonmoving party
must rely on more than conclusory allegations, mere speculation,
the building of one inference upon another, or the mere
existence of a scintilla of evidence.”

Dash, 731 F.3d at 311

(citing Anderson, 477 U.S. at 252, and Stone v. Liberty Mut.
Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)).

III. Discussion

The Supreme Court of Appeals of West Virginia applies
the following burden-shifting analysis regarding discriminatory
discharge for disability under the WVHRA:
In order to establish a case of discriminatory
discharge under [the WVHRA], with regard to employment
because of a [disability], the complainant must prove
as a prima facie case that (1) he or she meets the
definition of [having a “disability],” (2) he or she

9

is a “qualified [individual with a disability],”[ 2] and
(3) he or she was discharged from his or her job. The
burden then shifts to the employer to rebut the
complainant's prima facie case by presenting a
legitimate nondiscriminatory reason for such person's
discharge. If the employer meets this burden, the
complainant must prove by a preponderance of the
evidence that the employer's proffered reason was not
a legitimate reason but a pretext for the discharge.
Syl. Pt. 2, Morris Mem. Convalescent Nursing Home, Inc. v. W.
Va. Human Rights Comm’n, 189 W. Va. 314, 315, 318 (1993).
Neither Mr. Davis’s disability nor his discharge, elements one
and three of the prima facie case, are in dispute.

For reasons

set forth below, and drawing all inferences in Mr. Davis’s
favor, a reasonable jury could not conclude that a prima facie
case has been made that Mr. Davis was a “qualified individual
with a disability,” triggering the protections of the WVHRA.
For that reason, Universal Cable’s motion for summary judgment
must be granted.
Universal Cable argues that Mr. Davis is not a
qualified individual with a disability as defined by the
governing law and, consequently, has failed to prove a prima
facie case of discriminatory discharge. 3

(Defendant’s Memorandum

2

“In 1998, the Legislature replaced the term ‘handicap’ . . .
with the synonymous term ‘disability.’” Haynes v. RhonePoulenc, Inc., 206 W. Va. 18, 24 n.8 (1999). Thus, the court
has altered the language here to match current terminology.
3

Universal Cable also contends (1) that any claims pertaining to
conduct occurring before July 1, 2014, are time-barred and (2)
that Mr. Davis cannot prove that Universal Cable failed to
10

in Support (“Mem. in Supp.”) 18-20; Defendant’s Reply (“Reply”)
4.)

Specifically, Universal Cable insists that “[n]one of

Plaintiff’s communications with [Universal Cable] suggest that
it was foreseeable he would return to work when” Universal Cable
discharged him or that Mr. Davis was physically capable of
performing light duty.

(Reply 5, 9.)

Mr. Davis responds that it was “foreseeable” at the
time of his discharge “that an accommodation would allow him to
return to work,” and Universal Cable “refused to even determine
whether any [light duty] positions were available” or,
alternatively, to continue his leave.

(Resp. 9.)

Mr. Davis

points to his prior accommodations, both leave and light duty,
as proof that he could have been accommodated instead of
discharged.

(Id. 11.)

Understanding these arguments requires review of case
law under the statute and implementing regulations.

“Qualified

individual with a disability” is defined as “an individual who
is able and competent, with reasonable accommodation, to perform

reasonably accommodate his disability. (See Mem. in Supp. 1218.) Mr. Davis does not contest these points and limits his
argument to the alleged discriminatory discharge. (See
Plaintiff’s Response (“Resp.”).) The parties also briefed the
court on whether Universal Cable offered mere pretexts for Mr.
Davis’s discharge, but, for reasons explained below, the court
need not approach that discussion.
11

the essential functions of the job.”
4(4.2) (effective May 19, 1994).

W. Va. Code R. § 77-1-

A “reasonable accommodation”

may include “reassignment to a vacant position for which the
person is able and competent . . . to perform, . . . and similar
actions.”

Id. § 77-1-4(4.5.2).

Reassignment is not, however,

strictly mechanical.
Determinations about the reasonableness of an
accommodation . . . must be done on a case-by-case
basis, with careful attention to the particular
circumstances and guided by the [WVHRA’s] policy of
enhancing employment opportunities for those with
disabilities through workplace adjustments.
Essentially, the law mandates common sense courtesy
and cooperation. “Accommodation” implies flexibility,
and workplace rules, classifications, schedules, etc.,
must be made supple enough to meet that policy.
Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 67 (1996); accord id.
at 69-70 (“By our ruling today, we do not mean to imply that an
employer must create a make-work job or retain someone it does
not need.

What we do mean to imply is that an employer should

assess the extent of an employee's disability and how it can be
accommodated.

If the employee cannot be accommodated in his or

her current position, . . . then the employer should inform the
worker of potential job opportunities within the company and, if
requested, consider transferring him or her to fill the
opening.”).

Similarly, the WVHRA’s implementing regulations

provide the following:
Each individual's ability to perform a particular job
must be assessed on an individual basis. An employer
12

may refuse to hire or may discharge a qualified
individual with a disability if, even after reasonable
accommodation, the individual is unable to perform the
essential functions of the job without creating a
substantial hazard to his/her health and safety or the
health and safety of others.
Id. § 77-1-4(4.7); cf. Skaggs, 198 W. Va. at 70 (“[F]or many
employers, . . . there simply may not be any openings of
sufficient flexibility to make use of a particular employee.

If

that is the case, the employer would be justified in releasing
the employee.”).
As an alternative to reassignment, a “required
reasonable accommodation may include a temporary leave of
absence . . . for the purpose of recovery from or improvement of
the disabling condition that gives rise to an employee's
temporary inability to perform the requirements of his or her
job.”

Syl. Pt. 3, Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18,

19, 31 (1999).

Such a leave of absence should, however, be “of

limited duration, so that following a temporary leave of absence
for treatment and improvement, it is reasonably foreseeable that
the plaintiff is likely to be able to return to work.”

Id. at

31 n.17.
Consequently, although “it is clear, from all the
above, that a duty is imposed upon the employer to reasonably
accommodate the [disabled] employee,” Morris, 189 W. Va. at 320,
such duty is limited where it is not “reasonably foreseeable
13

that the plaintiff is likely to be able to return to work”
following a “totally disabling medical condition,” Haynes, 206
W. Va. at 31.

Cf. Skaggs, 198 W. Va. at 69-70 (see above).

This conclusion is reinforced by the similar interpretation in
the federal circuit courts of the anti-discrimination provisions
of the Americans with Disabilities Act, 42 U.S.C. § 12112
(“ADA”).

See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir.

1995) (“[R]easonable accommodation does not require the
[employer] to wait indefinitely for [the employee’s] medical
conditions to be corrected, especially in light of the
uncertainty of cure.”), abrogated on other grounds by EEOC v.
Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000); Moss
v. Harris Cty. Constable Precinct One, 851 F.3d 413, 419 (5th
Cir. 2017) (“Although taking leave that is limited in duration
may be a reasonable accommodation to enable an employee to
perform the essential functions of the job upon return, taking
leave without a specified date to return or, in this case, with
the intent of never returning is not a reasonable
accommodation.”); Scruggs v. Pulaski Cty., Ark., 817 F.3d 1087,
1091-94 (8th Cir. 2016) (finding that discharged employee was
not a qualified individual with a disability when the employee’s
doctor restricted her from performing the physical requirements
of either her job or any reasonable accommodations); Lang v.

14

Wal-Mart Stores East, L.P., 813 F.3d 447, 451, 455-56 (1st Cir.
2016) (same).
Both parties ground their positions in the opinions of
the Supreme Court of Appeals of West Virginia in Skaggs and
Haynes.

First, Mr. Davis insists that Skaggs stands for the

proposition that, to be a qualified individual with a
disability, “[p]laintiff does not have to establish that he can
perform the essential functions of his original job with a
reasonable accommodation if a vacant position is available.”
(Resp. 9.)

Mr. Davis looks for support in Syllabus Point 4 of

Skaggs, which holds that
[u]nder the [WVHRA], once an employee requests
reasonable accommodation, an employer must assess the
extent of an employee's disability and how it can be
accommodated. If the employee cannot be accommodated
in his or her current position, however it is
restructured, then the employer must inform the
employee of potential job opportunities within the
company and, if requested, consider transferring the
employee to fill the open position.
Syl. Pt. 4, Skaggs, 198 W. Va. at 59.

Ostensibly, Mr. Davis

interprets Skaggs as making him a qualified individual with a
disability by virtue of the available dispatch position and Mr.
Davis’s claim of an available WCT position at the time of his
discharge.

(Resp. 10.)

Universal Cable counters that Mr. Davis

could not be a qualified individual with a disability because

15

Dr. Majestro’s letters precluded the offering of light duty.
(Reply 8-9.)
Viewed in the light most favorable to Mr. Davis, the
record reveals that beginning June 3, 2014, Dr. Majestro found
Mr. Davis “continuously disabled” pending Mr. Davis’s next reevaluation.

(Mr. Davis’s Ex. F.)

Mr. Davis had asked sometime

after his April, 2014, knee surgery to be placed on light duty
either as a WCT or at dispatch, but Universal Cable declined.
(Davis Dep. 172.)

Instead, Universal Cable discharged Mr. Davis

on July 11, 2014, concluding that “[y]our doctor has given no
indication as to whether or when you may be able to return to
work in any capacity, which means we cannot consider you for
reassignment to an open position.”

(Mr. Davis’s Ex. H.)

At

that time, Universal Cable had an opening at dispatch, (see
Davis Dep. 225-27; Mr. Davis’s Ex. H), and it disputes whether
it had an opening as a WCT, (see Arbaugh Dep. 6-7).
Universal Cable’s decision not to place Mr. Davis on
light duty at the time of his discharge was entirely consistent
with the mandate of Skaggs.

Skaggs requires only that, “if

requested,” an employer “consider transferring the employee to
fill” open positions within the organization.
W. Va. at 59.

Syl. Pt. 4, 198

That decision is guided by the WVHRA’s

implementing regulations, which grant employers discretion to
16

deny light duty – even discharge an employee – where any
reasonable, available accommodation “create[s] a substantial
hazard to [the employee’s] health.”
4(4.7).

W. Va. Code R. § 77-1-

Mr. Davis insists that light duty was a reasonable

accommodation at the time of discharge because Mr. Davis had
worked light duty for six months ending in January, 2014, when
word from Dr. Dumm limited his ability to work.

(Resp. 10-11.)

However, the conditions under which Universal Cable previously
assigned Mr. Davis to light duty were materially different than
when Universal Cable discharged him; namely, Mr. Davis had, in
fact, been released for light duty during those intervening six
months ending in January 2014.

(See Mr. Davis’s Ex. B, Dr.

Zutshi Letter of July 25, 2013.)
Mr. Davis is correct to note that a reasonable
accommodation under the WVHRA can include reassignment to a
vacant position that fits within an employee’s medical
restrictions; however, Skaggs recognizes that “[d]eterminations
about the reasonableness of an accommodation . . . must be done
on a case-by-case basis.”

198 W. Va. at 67.

At the time of his

discharge, Dr. Majestro had not released Mr. Davis to work at
all, with or without restrictions.

Although Dr. Majestro’s

personal notes indicate that he believed that Mr. Davis could
perform light duty, Universal Cable cannot be expected to learn

17

of Dr. Majestro’s evaluations that were not made known to it.
Based on that information, Universal Cable had no choice but to
deny Mr. Davis’s requests for a light duty assignment regardless
of whether any such positions were available, as doing otherwise
would have doubtlessly posed a “substantial hazard” to Mr.
Davis’s medical condition.

See W. Va. Code R. § 77-1-4(4.7).

Accordingly, Skaggs does not make Mr. Davis a qualified
individual with a disability.
The parties dispute the outer limits of an employer’s
duty to grant a totally disabled employee – such as Mr. Davis “a temporary leave of absence . . . for the purpose of
recovery.”

See Haynes, 206 W. Va. at 31.

Both parties

reference footnote 17 of Haynes:
[B]y disabling condition, we refer to a totally
disabling medical condition of limited duration, so
that following a temporary leave of absence for
treatment and improvement, it is reasonably
foreseeable that the plaintiff is likely to be able to
return to work.
Id. at 31 n.17.

Universal Cable emphasizes the use of

“reasonably foreseeable” and “likely to be able to return to
work,” arguing that Dr. Majestro’s letters provided no
indication when or if ever Mr. Davis would return to work.
(Reply 5-6 (emphasis in original).)

Mr. Davis insists that

Haynes requires only that it be “foreseeable that an

18

accommodation would allow [an employee] to return to work.”
(Resp. 9.)
Universal Cable draws the court’s attention to Kitchen
v. Summers Continuous Care Center, LLC, 552 F. Supp. 2d 589
(S.D. W. Va. 2008) (Johnston, J.).

In that case, the plaintiff

lost her left arm above the elbow after she was involved in an
automobile accident.

Id. at 591.

After the plaintiff exhausted

her FMLA leave, her physician requested an additional ninety
days of leave but failed to indicate any date upon which the
plaintiff could return to work.

Id. at 591, 591 n.4.

The

defendant discharged the plaintiff instead of granting her
physician’s request for leave.

Id. at 591.

In Kitchen, the court noted that “[a]lthough in some
instances additional medical leave may be a reasonable
accommodation, it is only reasonable where it is finite and will
be reasonably likely to enable the employee to return to work.”
Id. at 596 (internal quotations omitted) (citing, inter alia,
Myers, 50 F.3d at 283; Haynes, 206 W. Va. at 31 n.17).

Because

the plaintiff’s physician had failed to “conclude that she would
be able to return to work after the medical leave,” Kitchen held
that the plaintiff had failed to make a prima facie case that
she was a qualified individual with a disability.

19

Id. at 598.

In reaching its decision, Kitchen considered the facts
of Haynes.

In Haynes, the plaintiff was unable to work due to

complications associated with her pregnancy.

206 W. Va. at 20.

The plaintiff’s physician provided the defendant with an
“anticipated return to work date,” id. at 20, but the defendant
discharged her anyway, id. at 23.

Under those circumstances,

the Supreme Court of Appeals of West Virginia found that the
plaintiff was a qualified individual with a disability because
the plaintiff’s “temporary inability to perform the requirements
of his or her job” would be remedied by the end of her leave, as
evidenced by her physician’s note.

Id. at 31.

In the present case, the facts much more closely
resemble Kitchen than Haynes.

Although Mr. Davis’s injury may

not have been as severe as the plaintiff’s in Kitchen, the facts
are nearly identical considering that “there was nothing in Dr.
[Majestro’s] note” that could lead a reasonable jury to conclude
that Mr. Davis was likely to return to work after August 12,
2014.

552 F. Supp. 2d at 597.

Dr. Majestro simply stated that

Mr. Davis was “continuously disabled” pending re-evaluation –
the same determination he had repeatedly made since April 25,
2014.

There was no evidence indicating that the last leave

period would be any different.

Thus, Universal Cable was well

within its right to discharge Mr. Davis.

20

Cf. Skaggs, 198 W. Va.

at 70 (“[F]or many employers, . . . there simply may not be any
openings of sufficient flexibility to make use of a particular
employee.

If that is the case, the employer would be justified

in releasing the employee.”).
In summary, Mr. Davis, as a BBT IV, was on leave of
absence for all of the five months ending July 22, 2013, during
the early part of which his Family and Medical Leave Act time
ran out.

Then, with his doctor’s recommendation, he was placed

on light duty as a WCT for the next six months.

That ended in

January, 2014, when Dr. Dumm advised Universal Cable that Mr.
Davis was “in a high degree of pain” and was at “high risk for
cyst rupture.”

By virtue of Dr. Dumm’s assessment, Universal

Cable aptly concluded that Mr. Davis’s continued working as a
WCT risked complicating his medical condition and, for that
reason, removed Mr. Davis from light duty and placed him back on
leave for the next three months through April 30, 2014.

At that

point, Dr. Majestro, who was Mr. Davis’s knee surgeon and had
just performed arthroscopic surgery on both his knees, informed
Universal Cable that he would remain continuously disabled for
the next four to six weeks.
Dr. Majestro repeated this same determination from
time to time so that Mr. Davis remained continuously disabled
and on leave through July 9, 2014, when he once again found Mr.
21

Davis continuously disabled and requested extended leave pending
his next evaluation that was scheduled for August 12, 2014.

As

a consequence, Universal Cable, on July 11, 2014, discharged Mr.
Davis who had been on continuous leave for the past five and a
half months with still another month specified before he would
again be evaluated.

Universal Cable reasonably concluded that

no indication had been given as to if or when he could return to
work in any capacity; but it did invite him to reapply for any
open position for which he was qualified, noting that there was
then an open dispatch position.
Lastly, Mr. Davis argues that, inasmuch as Dr.
Majestro did in fact release him to work with no restrictions on
August 15, 2014, Universal Cable should have accommodated him
because he was, in fact, subsequently released.

There are,

however, no facts here that could have led Universal Cable to
believe that Mr. Davis would have been cleared to work on August
15.

It should be noted that Universal Cable was tolerant and

respectful of Mr. Davis’s situation since he first went on leave
on two years earlier on July 11, 2012.

Accordingly, Universal

Cable has shown a lack of “genuine dispute as to any material
fact” regarding Mr. Davis’s prima facie case of discriminatory
discharge under the WVHRA, and Universal Cable’s motion for
summary judgment is granted.

22

such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.

02/15/2016

IV. Conclusion
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

02/22/2016

Scheduling conference at 4:30 p.m. at ORDERS that
For the reasons stated above, the court the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, summary judgment Lead counsel
Universal Cable’s motion for unless canceled. be, and hereby is,
directed to appear.
granted.
02/29/2016
Entry of scheduling order.
03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this order

The Clerk record and to transmit this Order and
to all counsel of is requestedany unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: November 6, 2017
DATED:

January 5, 2016

John T. Copenhaver, Jr.
United States District Judge

23