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Haynes v. Rhone-Poulenc, Inc.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1999 Term ___________ No. 25366 ___________ NATALIE HAYNES, Plaintiff below, Appellee, v. RHONE-POULENC, INC., a foreign corporation, Defendant below, Appellant. ________________________________________________________ Appeal from the Circuit Court of Kanawha County AFFIRMED ________________________________________________________ Submitted: February 17, 1999 Filed: July 14, 1999 P. Rodney Jackson, Esq. Lonnie C. Simmons, Esq. Charleston, West Virginia Attorneys for Appellee CHIEF JUSTICE STARCHER delivered the Opinion in this case. JUSTICE WORKMAN dissents, in part, and concurs, in part, and reserves the right to file a separate opinion. JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision in this case. JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion. JUDGE FRED RISOVICH, II, sitting by special assignment. SYLLABUS BY THE COURT 1. "To state a claim for breach of the duty of reasonable accommodation under the West Virginia Human Rights Act, W.Va.Code, 5-11-9 (1992), a plaintiff must allege the following elements: (1) The plaintiff is a qualified person with a disability; (2) the employer was aware of the plaintiff's disability; (3) the plaintiff required an accommodation in order to perform the essential functions of a job; (4) a reasonable accommodation existed that met the plaintiff's needs; (5) the employer knew or should have known of the plaintiff's need and of the accommodation; and (6) the employer
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William E. Robinson, Esq. Joseph M. Price, Esq. Robinson & McElwee Charleston, West Virginia Attorneys for Appellant

failed to provide the accommodation." Syllabus Point 2, Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996). 2. "Under the West Virginia Human Rights Act, W.Va.Code, 5-11-9 (1992), in a disparate treatment discrimination case involving an employee with a disability, an employer may defend against a claim of reasonable accommodation by disputing any of the essential elements of the employee's claim or by proving that making the accommodation imposes an undue hardship on the employer. Undue hardship is an affirmative defense, upon which the employer bears the burden of persuasion." Syllabus Point 3, Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996). 3. A "qualified disabled person" who is protected by the West Virginia Human Rights Act, W.Va. Code, 5-11-1 et. seq. and regulations issued pursuant thereto, includes a person who has a disability and is temporarily unable to perform the requirements of the person's job due to their disability, with or without accommodation. 4. Under the West Virginia Human Rights Act, W.Va. Code, 5-11-1 et. seq., required reasonable accommodation may include a temporary leave of absence that does not impose an undue hardship upon an employer, 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. 4. Punitive damages are an available form of remedial relief that a court may award under the provisions of W.Va. Code, 5-11-13(c) [1998]. Starcher, Chief Justice: In the instant case, we affirm an order of the Circuit Court of Kanawha County that awarded back pay, damages for emotional distress, punitive damages, and attorney fees to Ms. Natalie Haynes, for her disability discrimination claim under West Virginia's Human Rights Act. We hold (1) that a person who is temporarily unable to work is protected by the provisions of our Human Rights Act that prohibit discrimination against persons with disabilities in connection with their employment; (2) that a leave of absence may be a required reasonable accommodation for such a person; and (3) that a jury has the right to award punitive damages under the Human Rights Act. I. Facts and Background A. Factual Summary Natalie Haynes, the plaintiff below and the appellee in the instant appeal, began working as a chemical laboratory technician in 1981 for Rhone-Poulenc, Inc., the defendant below and appellant. The plaintiff married in 1991, and she became pregnant in April of 1996. Prior to her pregnancy, Ms. Haynes had suffered for some time from migraines and hypertension, and she took medication for these conditions. In June of 1996, the plaintiff learned that she was pregnant, and so notified the defendant. At her doctor's suggestion she requested a temporary work assignment change, so as to avoid contact with chemicals and reduce her hours from 12 per day to 8 per day, during her pregnancy. The defendant agreed to the change. Soon thereafter, the plaintiff's doctor advised the plaintiff that due to her hypertension, the plaintiff's pregnancy was high-risk -- for her and for her unborn child -- and that the plaintiff should not continue to work at all during the remainder of her pregnancy. In late June or early July of 1996, the plaintiff requested and was allowed to take leave from work, under a paid medical leave program that was generally available to the defendant's employees.See footnote 1 1 The defendant understood that the plaintiff's request for medical leave was occasioned by the defendant's high-risk pregnancy. In connection with the plaintiff's request for disability benefits while she was off on leave, the plaintiff's doctor submitted

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a form to the defendant stating that the plaintiff's anticipated return to work date was "3/1/97??" The plaintiff explained at trial that the March date reflected about a 2- month wait after her intended due date -- but that the due date was uncertain, in part because her medical condition might lead to an early birth. The plaintiff was an experienced, well-paid, skilled employee, who had consistently good work performance ratings. Her job was a desirable one. She had 15 years' seniority. There was no evidence that the plaintiff had ever suggested that she did not intend to return to work for the defendant following her pregnancy.See footnote 2 2 The defendant's medical leave policy as set forth in the defendant's written personnel policies entitled the plaintiff, as an employee of many years' longevity, to "short- term disability" medical leave for up to 6 months -- at full salary and benefits. Thereafter, the plaintiff was eligible for continued "long-term disability" medical leave, but at a reduced salary. The written policy also stated that "when possible" an employee's job would be kept open for them while on short-term disability benefits; but that after an employee was on long-term disability status, "business conditions may demand that the position be filled."See footnote 3 3 The plaintiff was not advised, when she began her leave, of this "we may fill your position after six months if business conditions demand it" provision in the defendant's medical leave policy. The defendant's counsel conceded at trial that the first time the plaintiff learned of this provision was in mid-December of 1996, shortly before her child was born. The defendant offered no evidence as to when, if ever, the defendant had filled a position of a disabled person at the expiration of their 6-month short-term disability benefit period. After the plaintiff began her medical leave, the defendant filled her position with a temporary worker, a Mr. Fuller. He proved to be a good employee, and in November or December of 1996, Dr. Jaleh Abedi, a senior chemist in the laboratory where the plaintiff worked and a supervisor of the plaintiff, asked the human resources division to hire Mr. Fuller as a permanent employee. Dr. Abedi was told that this was not possible, because the plaintiff was on medical leave and her job was being kept open for her. Dr. Abedi was a key player in the circumstances that led to the defendant's ultimate decision, on January 9, 1997, not to keep the plaintiff's position open for her any longer. The evidence at trial -- viewed in the light most favorable to the plaintiff (who prevailed before the jury and is thus entitled to have the evidence so viewed) tended to show that Dr. Abedi was unsympathetic and hostile to the plaintiff. Specifically, the evidence tended to show that Dr. Abedi was intolerant and disdainful of the plaintiff's medical conditions, of the plaintiff's requests for accommodation due to those conditions, and of the plaintiff's decision to take an extended medical leave in connection with her pregnancy.See footnote 4 4 In November of 1996, the defendant sent the plaintiff a letter advising her that her short-term disability benefits would expire in January, and enclosing forms for her to fill out and return -- to continue her insurance coverage and receive reduced salary payments. The plaintiff and her doctor filled out the forms and returned them to the defendant. The form that the plaintiff completed indicated that she would return to work on "3-21-97;" her doctor gave an anticipated return date of "3/20/96" (sic -- the "1996" was an error by the doctor in writing the year). The plaintiff also indicated a return date of "at least 3-21-97" on a credit disability insurance form that she sent to the defendant in November of 1996.See footnote 5 5 On December 12, 1996, the defendant sent the plaintiff a letter acknowledging the receipt of the plaintiff's longterm disability paperwork. This letter for the first time advised the plaintiff of the provision in the medical leave policy wherein the defendant reserved the right to fill the plaintiff's position after her 6 months of short-term disability benefits expired. The plaintiff received this letter in mid-December, on the very day that she was having a baby shower. The next morning she had a doctor's appointment. Because her blood pressure was fluctuating, she was sent to the hospital's triage monitoring unit for a battery of tests. She thereafter attended that unit for several days for monitoring, until a decision was made that her child must be delivered. On Christmas Eve, 1996, the plaintiff's child was born by Caesarean section.

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After the birth of her child, the plaintiff called her workplace manager, Okey Groves, to tell him about the birth. Neither the plaintiff nor her manager recalled at trial whether they had discussed the plaintiff's anticipated date for returning to work.See footnote 6 6 Sometime in late December or early January of 1996, Dr. Abedi again asked that Mr. Fuller be made a full-time employee. On January 9, 1997, the 6-month "job protection" period in the medical leave policy having elapsed, Mr. Fuller was given permanent status, in accord with Dr. Abedi's wishes, effectively eliminating the plaintiff's job. The plaintiff, who still assumed that the defendant expected her to return to work in March of 1997, was not advised of this action. In February of 1997, the plaintiff was released to return to work by her obstetrician, conditioned upon approval by her hypertension doctor. On March 1, 1997, that doctor agreed. The plaintiff reported to work on March 3, 1997. She first reported to the plant physician, as the defendant's medical leave policy required. The physician cleared the plaintiff, and she then went to the defendant's human resources division. She was told there that she had no job, because there were no positions open in her lab. The plaintiff had been making $44,000 a year working for the defendant. As previously noted, her husband had quit his previous job to work at home, so as to better raise their child; and his work at home was less remunerative than his previous job, with no medical benefits. In the aftermath of the plaintiff losing her job with the defendant, she was unable to keep up payments on her family's medical insurance. She and her husband expended most of their $58,000 savings to pay off their debts and to live. The plaintiff was unable to find comparable work after she left working for the defendant. She experienced emotional distress as a result of her job loss and unemployment.See footnote 7 7 B. West Virginia Human Rights Action The plaintiff filed suit and went to trial against the defendant on her claim under the West Virginia Human Rights Act, W.Va. Code, 5-11-1 et seq., ("the Act" or "the Human Rights Act") and specifically W.Va. Code, 5-11-9 [1992]See footnote 8 8 , which stated in pertinent part: 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 blind or handicapped[.] We set forth in Syllabus Point 2 of Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996) the elements that a plaintiff must prove in a claim of disability discrimination: To state a claim for breach of the duty of reasonable accommodation under the West Virginia Human Rights Act, W.Va.Code, 5-11-9 (1992), a plaintiff must allege the following elements: (1) The plaintiff is a qualified person with a disability; (2) the employer was aware of the plaintiff's disability; (3) the plaintiff required an accommodation in order to perform the essential functions of a job; (4) a reasonable accommodation existed that met the plaintiff's needs; (5) the employer knew or should have known of the plaintiff's need and of the accommodation; and (6) the employer failed to provide the accommodation. We also stated in Syllabus Point 3 of Skaggs: Under the West Virginia Human Rights Act, W.Va.Code, 5-11-9 (1992), in a disparate treatment discrimination case involving an employee with a disability, an employer may defend against a claim of reasonable accommodation by disputing any of the essential elements of the employee's claim or by proving that making the accommodation imposes an undue hardship on the employer. Undue hardship is an affirmative defense, upon which the employer bears the burden of persuasion.
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The defendant does not contest that the plaintiff's high-risk pregnancy, complicated by medical conditions, met the legal test of a disability. The defendant also does not contest that it had ample knowledge of the plaintiff's disabling condition. The defendant's defense at trial boiled down to the argument that it was unreasonable for the defendant to be required to hold the plaintiff's job open for her after 6 months had passed. Why did the defendant say at trial that such an accommodation was unreasonable? Because, argued the defendant, the plaintiff failed to communicate with the defendant about the plaintiff's intent to return to work. The defendant contended that it had no idea when -- or even whether -- the plaintiff was going to return to work.See footnote 9 9 In other words, the defendant relied at trial on trying to persuade the jury that the cause of the plaintiff's job loss was the plaintiff's failure to make it clear to the defendant that she intended to return to work within a reasonable period of time after her child was born. As the defendant's counsel argued: ". . . if there had been one phone call . . . we wouldn't be here . . . if she had done that, we wouldn't be sitting here today." The problem with this defense, however, as the discussion in the footnote shows, is that it was not compellingly supported in the evidence.See footnote 10 10 Therefore, it not surprising that the jury concluded (1) that the defendant's "just one phone call" explanation/excuse for terminating the plaintiff's job was not a viable defense; and (2) that the termination of the plaintiff's job after 6 months, instead of holding it open for another 3 months, was, in fact and in law, an impermissible failure to reasonably accommodate the plaintiff's medical disability. Upon such a determination, the jury awarded the plaintiff $21,000 in back wages; $21,000 in damages for humiliation and embarrassment, etc.; and $58,000 in punitive damages.See footnote 11 11 The circuit court did not have to address the reinstatement issue, because in the middle of the trial, the defendant offered to reinstate the plaintiff to a chemical technologist job -- and she accepted the job offer. II. Standard of Review We review questions of law arising from the proceeding below de novo. We view the evidence, and the evidentiary and inferential determinations that were within the province of the jury, in the light most favorable to the party who prevailed -- in this case, the plaintiff. As we have stated: In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved. Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984). III. Discussion A. "Qualified Person With A Disability" and "Reasonable Accommodation" The defendant argues that the verdict for the plaintiff should be overturned because as a matter of law, the plaintiff did not establish the first element in the Skaggs formulation -- that the plaintiff was a "qualified person with a

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disability." The defendant argues that if a disability temporarily but entirely precludes a person from performing the duties of a job (even if given on-the-job accommodation) and requires the person to take a temporary leave of absence from work because of the disabling condition, then the person is not "able and competent to perform the services required[,]" W.Va. Code, 5-11-9(1) [1998], and is not "currently capable of performing the work . . . ." 77 CSR 1-4.3 [1994] (emphasis added). The defendant contends that granting a leave of absence to an employee who temporarily cannot work because of a disability cannot be a potential form of required accommodation under disability anti-discrimination laws -- because the threshold requirement that gives rise to an employer's duty to provide reasonable accommodation is the employee's "present" or "current" ability to do the work, with accommodation. In other words, the defendant argues that a person who is temporarily unable to perform the duties of their job, even with on-the-job accommodation, is not entitled to the protections of the West Virginia Human Rights Act. The defendant contends that under the Act, the "reasonable accommodation" requirement cannot and does not include granting a temporary leave of absence to an employee who is temporarily unable to perform the duties of their job due to a disability. We discuss infra the substantive legal merits of this contention by the defendant. However, as a threshold matter, we determine that the defendant's reliance on this argument in the instant appeal is fatally undercut by a circumstance that is prior to the legal merits of the defendant's argument. That circumstance is the fact that the defendant took a different position at trial, and therefore cannot now raise this argument in asserting error in the proceedings below. Specifically, at an instructions conference before the final arguments of counsel, the defendant's counsel proposed the following instructional language for the charge to the jury: Some disabilities may require the disabled employee to take a leave of absence, and this may be one possible reasonable accommodation to allow the employee an opportunity to recover from the disability and return to their job. The defendant's counsel also re-stated this principle of law in a colloquy in the instructions conference: Plaintiff's counsel: . . . I think it's important for them [the jury] to understand that a leave of absence for the disabled employee may be a reasonable accommodation, depending on the facts. Defendant's counsel: We don't dispute that it [a leave of absence] may be a reasonable accommodation. . . . The defendant also agreed to an instruction that stated: In determining whether a reasonable accommodation existed which would have permitted the plaintiff to have performed the essential functions of her job, you may consider the length of time that the plaintiff was required to be absent from her job. (Emphasis added.) Given the foregoing positions taken by the defendant at trial, the defendant cannot now contend on appeal that the plaintiff was not entitled to assert that the defendant may be required, under our Human Rights Act's protections against disability discrimination, to provide a leave of absence as a reasonable accommodation for a worker like the plaintiff, who is temporarily unable to work due to a disability. Thus, on this assignment of error, the defendant cannot prevail in the instant appeal. However, it appears that the legal question of whether an employee who is temporarily unable to work because of a disability is entitled to the protections of the Act, and whether a leave of absence for such a person may be a required reasonable accommodation, are issues that we have not previously addressed. Both parties have briefed the issues and they are important ones for employers and employees. Consequently, we address them. Initially, we observe that the reading of our Human Rights Act that the defendant is urging upon this Court defies

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common sense. Consider the hypothetical of a employee with a disability who is unable to work for a week, due to a medical problem arising out of the disability -- and who therefore, with the employer's permission, takes a 1-week leave. What if this employee is then fired during that week, while the employee is unable to work? The defendant's legal position, logically extended, would view such an employee, during that week (at the time of the discriminatory act -- the termination), as not "able and competent to perform the services required" (W.Va. Code, 5-11-9(1) (1992); and as not "currently capable of performing the work and can do the work . . ." 77 CSR 1-4.3 [1994] (emphasis added). Such an employee, according to the defendant's reading of our Human Rights Act, is not a "qualified person with a disability" during a period of time when the employee is unable to work; and therefore, the employee has no standing to claim the protections of our Human Rights Act. It is difficult to find coherence, common sense, or persuasive force in a legal position that would strip the protection of the law against disability discrimination from an employee with a disability that requires the employee to miss work for a week -- or indeed, logically extended, even for a day! The defendant directs our attention to a recent case where this Court addressed the issue of whether a person who is unable to work can be a "qualified person with a disability" who is entitled to the protections of the Act, Hosaflook v. Consolidation Coal Co., 201 W.Va. 325, 497 S.E.2d 174 (1997). In Syllabus Point 6 of Hosaflook, we held: In order to establish a prima facie case of handicap discrimination pursuant to W.Va.Code, 5-11-9 [1992] of the West Virginia Human Rights Act, which provides that it is unlawful "[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[,]" a claimant must prove, inter alia, that he or she is a "qualified handicapped person" as that term is defined in 77 C.S.R.

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