IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

_______________

No. 17-0970

_______________

DONALD WOODS,

Petitioner

v.

JEFFERDS CORPORATION,

a West Virginia Corporation,

Respondent

________________________________________________________

Appeal from the Circuit Court of Putnam County

The Honorable Joseph Reeder, Judge

Civil Action No. 15-C-34

AFFIRMED

________________________________________________________

Submitted: January 30, 2019

Filed: February 28, 2019

Edward G. Atkins, Esq.

Charleston, West Virginia

Counsel for the Petitioner

Victor O. Cardwell, Esq.

Michael P. Gardner, Esq.

Woods Rogers, PLC

Roanoke, Virginia

Albert F. Sebok, Esq.

Jackson Kelly, PLLC

Charleston, West Virginia

Counsel for the Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

FILED

February 28, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “A motion for summary judgment should be granted only when it is 

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is 

not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. 

Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. “Summary judgment is appropriate where the record taken as a 

whole could not lead a rational trier of fact to find for the nonmoving party, such as 

where the nonmoving party has failed to make a sufficient showing on an essential 

element of the case that it has the burden to prove.” Syl. Pt. 4, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994).

3. “In order to make a prima facie case of employment discrimination 

under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the 

plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the 

plaintiff.

(3) But for the plaintiff’s protected status, the adverse decision would 

not have been made.” 

Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 

(1986).
ii

4. “The ‘but for’ test of discriminatory motive in Conaway v. Eastern 

Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), is merely a threshold 

inquiry, requiring only that a plaintiff show an inference of discrimination.” Syl. Pt. 2, 

Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995).

5. “In order to establish a case of discriminatory discharge under W.Va. 

Code, 5-11-9 [1989], 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 is a ‘[qualified individual with a disability],’ 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’l 

Convalescent Nursing Home, Inc. v. W.Va. Human Rights Comm’n, 189 W.Va. 314, 431 

S.E.2d 353 (1993).

6. “A ‘[qualified individual with a disability]’ 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.” Syl. Pt. 1, Coffman v. W.Va. Bd. of Regents, 182 W.Va. 73, 386 S.E.2d 1 

(1988), overruled on other grounds by Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 

S.E.2d 561 (1996).
iii

7. “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 alleged 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.” Syl. Pt. 2, Skaggs v. Elk Run Coal Co., 

198 W.Va. 51, 479 S.E.2d 561 (1996).

8. Under the West Virginia Human Rights Act, W.Va. Code § 5-11-9 

[2016], an employer may rely upon the reasonable opinion of a medical expert when 

deciding if a disabled individual is medically qualified to perform the essential functions 

of a job. A reasonable opinion is one made in good faith by an expert familiar with the 

individual, including the individual’s work and medical history, and with the essential 

functional requirements of the job.
1

HUTCHISON, Justice:

Plaintiff Donald Woods brought this disability discrimination action 

pursuant to the West Virginia Human Rights Act, W.Va. Code §§ 5-11-1 to -20. He 

alleged that the defendant, Jefferds Corporation (“Jefferds”), refused to hire him because 

of his physical disability. Jefferds moved for summary judgment asserting it declined to 

hire Mr. Woods because a pre-employment physical examination revealed that Mr. 

Woods’s disability prevented him from completing essential responsibilities of the job. 

Additionally, Jefferds argued that Mr. Woods neither asked for nor proposed any 

reasonable accommodation that would allow him to complete those essential tasks. 

Instead, Mr. Woods insisted upon an unreasonable course: that Jefferds disregard the 

results of the physical examination. The Circuit Court of Putnam County granted the 

motion for summary judgment and dismissed the action.

Mr. Woods now appeals the circuit court’s summary judgment order. We 

affirm.

I. Factual and Procedural Background

The respondent and defendant below is Jefferds Corporation, an equipment 

servicing company. Jefferds has employees permanently stationed within the Toyota 

manufacturing plant in Buffalo, West Virginia, who maintain and repair Toyota’s 

assembly-line machinery, cranes, forklifts, and other equipment. Jefferds classifies each

employee as an “engineering equipment mechanic,” a physically demanding job that 

requires crouching, climbing ladders, lifting and carrying up to 75 pounds, crawling, and 
2

otherwise contorting oneself into tight and precarious positions. Some equipment in the 

plant is located atop lifts that can be repaired or maintained only by climbing vertical 

ladders; other equipment is in below-ground “containment pits” where fluids build up and 

pumps are serviced. Four engineering equipment mechanics work on the day shift at the 

Toyota plant, and two work the night shift.

In late 2013, Jefferds advertised an opening for an engineering equipment 

mechanic at the Toyota plant on the night shift. The petitioner and plaintiff below, 

Donald Woods, responded to the advertisement and an in-person interview was arranged. 

In January 2014, Mr. Woods met with three Jefferds employees: the site supervisor at the 

Toyota plant, the company’s human resources manager, and an operations manager. The 

parties agree that the interview went well.

During the interview, Mr. Woods told the Jefferds employees that he had a 

prosthetic leg. In 2003, Mr. Woods was involved in a motorcycle accident that resulted 

in the amputation of his left leg above the knee. Because of his prosthesis, Mr. Woods 

expressed two limitations on his work abilities: first, he said he had difficulty picking up 

and then walking while carrying a heavy object, and second, he said he could not wear a 

heavy, steel-toed boot on his prosthesis. After discussions, the Jefferds employees agreed

that Mr. Woods could use a dolly to move heavy objects, and that he could wear a tennis 

shoe on his prosthetic leg. During the first interview, Mr. Woods was invited to complete 

a formal job application for Jefferds.
3

Several weeks later, a Jefferds supervisor contacted Mr. Woods and invited 

him back to the company’s office. In this second meeting, the supervisor conditionally 

offered Mr. Woods the engineering equipment mechanic job. Mr. Woods later recalled 

that the supervisor told him “that I was perhaps, maybe, the best candidate that they had 

gotten so far.” However, the Jefferds supervisor told Mr. Woods the offer was 

conditioned upon him successfully passing a pre-employment physical examination.1 

Jefferds scheduled and paid for the examination with an independent physician.

Jefferds supplied the physician with a “Jefferds Corporation Physical 

Examination” form to complete after seeing Mr. Woods. Jefferds also supplied the 

physician with a four-page document that outlined the physical skills required of an 

engineering equipment mechanic. Those skills included “stooping, bending, crouching, 

crawling,” “climbing step ladders,” “climbing stairs and ladders,” “climbing 40’

extension ladders,” and “building and climbing scaffolding.”

The physician saw Mr. Woods, completed the physical examination form,

and returned it to Jefferds. On the form, the physician noted that Mr. Woods was 

wearing a prosthetic leg. Under the heading “Physician’s Recommendations to the 

Prospective Employer,” the physician declared that Mr. Woods was “unable to do jobs 

that require squatting or climbing ladders[.]” The physician also noted that Jefferds

 

1

Jefferds also required Mr. Woods to complete a drug screen and a criminal 

background check.
4

should not give Mr. Woods a job that involved “excessive stooping, bending, & 

crouching.”

Thereafter, employees of Jefferds contacted Mr. Woods and arranged a 

third, in-person meeting. At that meeting, the human resources director for Jefferds told 

Mr. Woods about the results of his physical examination. She told Mr. Woods that the 

physician had recommended Mr. Woods not be placed in a job that “require[s] squatting 

or climbing ladders[.]” Because these were essential tasks required of an engineering 

equipment mechanic, she said that Mr. Woods could not have the job.

Mr. Woods objected and told the Jefferds employees present that the doctor 

was wrong. He insisted that he could climb ladders and that he could partially squat, and 

offered to demonstrate that he could complete these skills. The Jefferds employees

listened to Mr. Woods’s entreaties, but maintained they were bound by the physician’s 

assessment of his abilities. In later depositions of the three Jefferds employees who met 

with Mr. Woods, each employee stated that the decision not to hire Mr. Woods was based 

solely upon the physician’s recommendation that Mr. Woods not be placed in a job 

requiring squatting or climbing ladders.2

 

2

Somewhere over a month after his rejection by Jefferds, Mr. Woods 

sought out and paid for his own functional capacity examination in April 2014. Mr. 

Woods testified in his deposition that he wanted to be able to present the report of the 

examination to any future employer who might question his physical capabilities. The 

report stated, “[t]he purpose of this FCE [Functional Capacity Evaluation] was to 

evaluate Mr. Woods’ current safe functional abilities to assist him in clarifying his 

Continued . . .
5

On February 19, 2015, Mr. Woods filed the instant lawsuit against Jefferds 

in the Circuit Court of Putnam County, alleging that the company’s refusal to hire him 

constituted disability discrimination in violation of the West Virginia Human Rights Act.3 

After the parties conducted discovery, Jefferds filed a motion for summary judgment

asserting that Mr. Woods had failed to establish a prima facie case of discrimination.

In an order dated October 4, 2017, the circuit court granted summary 

judgment to Jefferds and dismissed Mr. Woods’s disability discrimination claim. In 

order to establish his disability discrimination claim, the circuit court noted that Mr. 

Woods was required to offer proof that Jefferds acted with discriminatory intent and that 

Mr. Woods’s disability actually motivated the employer’s decision. The circuit court 

concluded that Jefferds could rebut any inference of discrimination because it articulated 

a legitimate, nondiscriminatory reason for their decision not to hire Mr. Woods: it did not 

hire him because an independent physician concluded Mr. Woods could not safely 

perform tasks essential to the job, namely squatting and climbing ladders. Mr. Woods 

offered no evidence that this reason was merely a pretext for discrimination.

 

objectively measured safe functional abilities to potential employers.” The report noted

that Mr. Woods “demonstrated limited ability to squat/crouch,” and that he “ascended 

and descended 5 rungs on an extension ladder x 5 repetitions[.]” It appears that Mr. 

Woods did not provide Jefferds with a copy of this report until after he filed the instant 

lawsuit.

3

The second count of Mr. Woods’s complaint asserted that Jefferds’s 

actions caused an intentional infliction of emotional distress. Mr. Woods has since 

abandoned this count of his complaint.
6

Furthermore, the circuit court found that Mr. Woods had also failed to offer 

evidence that Jefferds did not reasonably accommodate his disability. Mr. Woods did not 

dispute that squatting and climbing ladders were essential functions of the job position, 

yet his pre-employment physical examination determined that he was unable to climb 

ladders and squat adequately. Mr. Woods merely sought the complete rejection of the 

physician’s physical examination report. The circuit court concluded that, “Jefferds 

[was] fully entitled to rely on the conclusions of the physician who examined Mr. Woods 

and it has no obligation to defer to Mr. Woods’[s] non-medical opinions.” The circuit 

court therefore rejected the claim that Jefferds failed to reasonably accommodate Mr. 

Woods’s disability.

Mr. Woods now appeals the circuit court’s summary judgment order. 

II. Standard of Review

Our standard for reviewing an order granting summary judgment is well 

settled. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, 

Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In conducting a de novo

review, we apply the same standard for granting summary judgment that was applied by 

the circuit court. Under that standard,

[a] motion for summary judgment should be granted 

only when it is clear that there is no genuine issue of fact to 

be tried and inquiry concerning the facts is not desirable to 

clarify the application of the law.
7

Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 

S.E.2d 770 (1963). In other words,

[s]ummary judgment is appropriate where the record taken as 

a whole could not lead a rational trier of fact to find for the 

nonmoving party, such as where the nonmoving party has

failed to make a sufficient showing on an essential element of 

the case that it has the burden to prove.

Syl. Pt. 4, Painter v. Peavy, 192 W.Va. at 190, 451 S.E.2d at 756. “The circuit court’s 

function at the summary judgment stage is not to weigh the evidence and determine the 

truth of the matter, but is to determine whether there is a genuine issue for trial.” Id., Syl. 

Pt. 3.

III. Discussion

Mr. Woods’s assignments of error to the circuit court’s summary judgment 

order are not clearly stated, but they appear to present a challenge with two facets.

4

 First, 

Mr. Woods generally seems to argue that the circuit court erred when it found he had not 

 

4 Our confusion regarding petitioner Woods’s arguments stems, in part,

from his counsel’s failure to comply with the Rules of Appellate Procedure. The opening 

part of petitioner’s brief on appeal lists seven distinct assignments of error; however, the 

argument section of the brief melds these seven assignments into an indistinguishable 

mélange of assertions. Rule 10(c)(7) of the Rules of Appellate Procedure mandates an 

appellate brief “contain an argument exhibiting clearly the points of fact and law . . . and 

citing the authorities relied on, under headings that correspond with the assignments of 

error.” (Emphasis added). Because the petitioner’s brief flagrantly violates this Rule, 

the Court has struggled to comprehend and analyze the arguments that petitioner’s 

counsel has made. While we have in this case and in past cases routinely deferred to the 

aspirations of Rule 1(b) (“to provide a complete, expeditious, and effective method of 

review in all cases”), where a petitioner’s brief fails to comply with Rule 10, we 

encourage opposing counsel to bring this failure to the attention of the Clerk of the Court 

so that any breach of Rule 10 may be promptly remedied.
8

established a prima facie, triable case of intentional disability discrimination. Second, 

Mr. Woods argues that Jefferds engaged in disability discrimination when it refused to 

reject the doctor’s physical examination report or otherwise create some form of 

reasonable accommodation.

We begin by outlining the law governing the parties’ dispute. Mr. Woods 

brought his suit under the Human Rights Act (“the Act”), which prohibits an employer 

from discriminating against a person because of a disability. “[T]he law protects persons 

with impairments from being denied employment by virtue of an employer’s hostility to

those who are disabled or its stereotypical assumptions about their capabilities.” Skaggs 

v. Elk Run Coal Co., 198 W.Va. 51, 63, 479 S.E.2d 561, 573 (1996). The Human Rights 

Act protects a disabled individual’s right to employment so long as that individual is 

capable, with reasonable accommodations, of completing the bona fide, essential 

functions of the job.

The Act, specifically W.Va. Code § 5-11-9(1) [2016]5, provides the 

following protections for disabled individuals:

 

5

In 2016, the Legislature adopted or modified statutes to allow employers 

to grant preferences in hiring to veterans and disabled veterans. In doing so, the 

Legislature modified W.Va. Code § 5-11-9(1) to provide that an employer exercising 

such a preference does not violate the Act when the veteran “meets all of the knowledge, 

skills, and eligibility requirements of the job[.]” W.Va. Code § 5-11-9a [2016]. None of 

these 2016 changes influence Mr. Woods’s cause of action. See 2016 Acts of the 

Legislature, ch. 105.
9

It shall be an unlawful discriminatory practice, unless based 

upon a bona fide occupational qualification . . . [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[.]

An employer “discriminate[s]” when it “exclude[s] from, or fail[s] or refuse[s] to extend 

to, a person equal opportunities because of . . . [a] disability.” W.Va. Code § 5-11-3(h) 

[1998]. The Act defines “disability,” in part, as:

(1) A mental or physical impairment which substantially 

limits one or more of such person’s major life activities. The 

term “major life activities” includes functions such as caring 

for one’s self, performing manual tasks, walking, seeing, 

hearing, speaking, breathing, learning and working;

(2) A record of such impairment; or

(3) Being regarded as having such an impairment.

W.Va. Code § 5-11-3(m).

The parties’ dispute also implicates regulations interpreting the Act 

promulgated by the West Virginia Human Rights Commission.6 Specifically, the parties’

arguments concern whether Mr. Woods is a “qualified individual with a disability,” as 

defined by those regulations. The regulations provide that “[n]o employer shall, on the 

basis of disability, subject any qualified individual with a disability to discrimination in 

 

6

See W.Va. Code § 5-11-8(h) [1998] (“The commission is hereby 

authorized and empowered . . . [t]o do all other acts and deeds necessary and proper to 

carry out and accomplish effectively the objects, functions and services contemplated by 

the provisions of this article, including the promulgation of legislative rules[.]”).
10

employment as it relates to . . . [h]iring[.]” W.Va. Code R. § 77-1-4.1.2 [1994] (emphasis 

added). The regulations go on to provide the following definition for “qualified 

individual with a disability:”

4.2. “Qualified Individual with a Disability” means an 

individual who is able and competent, with reasonable 

accommodation, to perform the essential functions of the job, 

and if an employer has prepared a written description before 

advertising or interviewing applicants for the job, this 

description may be considered evidence of the essential 

functions of the job. A job function may be considered 

essential for several reasons, including but not limited to the 

following:

4.2.1. The function may be essential because the reason the 

employment position exists is to perform that function;

4.2.2. The function may be essential because of the limited 

number of employees available among whom the 

performance of that job function can be distributed; and/or

4.2.3. The function may be essential because of the amount 

of time spent on the job performing the function.

W.Va. Code R. § 77-1-4.2 (emphasis added).7 “A ‘[qualified individual with a 

disability]’ under the West Virginia Human Rights Act and the accompanying regulations 

 

7

The regulations provide the following definition of “able and competent”:

4.3. “Able and Competent” means that, with or without 

reasonable accommodation, an individual is currently capable 

of performing the work and can do the work without posing a 

direct threat . . . of injury to the health and safety of either 

other employees or the public. 

W.Va. Code R. § 77-1-4.3. The regulations also provide the following definition of 

“reasonable accommodation”:

Continued . . .
11

is one who is able and competent, with reasonable accommodation, to perform the 

essential functions of the job in question.” Syl. Pt. 1, Coffman v. W.Va. Bd. of Regents, 

182 W.Va. 73, 386 S.E.2d 1 (1988), overruled on other grounds by Syl. Pt. 4, Skaggs, 

198 W.Va. at 59, 479 S.E.2d at 569. The parties’ dispute, then, concerns whether Mr. 

Woods was a “qualified individual with a disability” who was able to perform the

essential functions of the job with reasonable accommodation. We now turn to the means 

by which Mr. Woods was required to prove his case.

In general, a plaintiff may premise recovery under the Human Rights Act 

upon a theory of either disparate treatment or disparate impact. “Disparate treatment is 

applicable to claims of intentional discrimination, as opposed to claims that a facially 

neutral practice is having disparate impact upon a protected class.” West Virginia 

Univ./West Virginia Bd. of Regents v. Decker, 191 W.Va. 567, 570-71, 447 S.E.2d 259, 

262-63 (1994). Mr. Woods has based his case solely upon a claim of disparate treatment:

he claims that Jefferds intentionally discriminated against him based upon his disability.

 

4.4. “Reasonable Accommodation” means reasonable 

modifications or adjustments to be determined on a case-bycase basis which are designed as attempts to enable an 

individual with a disability to be hired or to remain in the 

position for which he was hired. Reasonable accommodation 

requires that an employer make reasonable modifications or 

adjustments designed as attempts to enable an individual with 

a disability to remain in the position for which she/he was 

hired.

W.Va. Code R. § 77-1-4.4.
12

“An intentional discrimination case may be advanced in different ways. A 

plaintiff can prove discriminatory animus directly or by an inferential method of proof.” 

Skaggs, 198 W.Va. at 71, 479 S.E.2d at 581. It is the rare case where there is evidence a 

defendant directly announces acting with a discriminatory intent. Most cases require the 

plaintiff to imply through circumstantial evidence that a defendant meant to improperly 

discriminate.8 In those latter cases, the plaintiff relies on a shifting-burden-of-proof 

framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

“‘The shifting burdens of proof set forth in McDonnell Douglas are designed to assure 

that the “plaintiff [has] his day in court despite the unavailability of direct evidence.”’” 

Skaggs, 198 W.Va. at 71, 479 S.E.2d at 581 (quoting Trans World Airlines, Inc. v. 

Thurston, 469 U.S. 111, 121 (1985), quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 

(1st Cir.1979)).

“The first step under McDonnell Douglas is to determine whether the 

plaintiff has made a prima facie case of discrimination.” Knotts v. Grafton City Hosp., 

237 W.Va. 169, 175, 786 S.E.2d 188, 194 (2016). We set out the general elements of a 

 

8

“Gone are the days (if, indeed, they ever existed) when an employer 

would admit to firing an employee because she is a woman, over forty years of age, 

disabled or a member of a certain race or religion. To allow those genuinely victimized 

by discrimination a fair opportunity to prevail, courts will presume that, once the plaintiff 

has shown the [McDonnell Douglas] elements, unlawful discrimination was the most 

likely reason for the adverse personnel action.” Skaggs, 198 W.Va. at 72 n.21, 479 S.E.2d 

at 582 n.21 (quoting Geraci v. Moody-Tottrup, Intern., Inc., 82 F.3d 578, 581 (3rd Cir. 

1996)).
13

prima facie case in Syllabus Point 3 of Conaway v. Eastern Associated Coal Corp., 178 

W.Va. 164, 358 S.E.2d 423 (1986):

In order to make a prima facie case of employment 

discrimination under the West Virginia Human Rights 

Act, W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must 

offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision 

concerning the plaintiff.

(3) But for the plaintiff’s protected status, the adverse 

decision would not have been made.

“The ‘but for’ test of discriminatory motive . . . is merely a threshold inquiry, requiring 

only that a plaintiff show an inference of discrimination.” Syl. Pt. 2, Barefoot v. Sundale 

Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995). “What is required of the plaintiff 

is to show some evidence which would sufficiently link the employer’s decision and the 

plaintiff’s status as a member of a protected class so as to give rise to an inference that 

the employment decision was based on an illegal discriminatory criterion.” Conaway, 

178 W.Va. at 170-71, 358 S.E.2d at 429-30.

In the context of an employment-related disability discrimination claim 

under the Act, this Court has adjusted the elements of a prima facie case to account for 

the regulations propounded by the Human Rights Commission. As noted earlier, 

individuals alleging disability discrimination in the employment context must not only 

show they have a “disability,” as defined by the Act, but must also show that they are a 
14

“qualified individual with a disability,” as defined in the regulations. This Court has 

held:

In order to establish a case of discriminatory discharge 

under W.Va. Code, 5-11-9 [1989], 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 is a “[qualified

individual with a disability],” 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’l Convalescent Nursing Home, Inc. v. W.Va. Human Rights 

Comm’n, 189 W.Va. 314, 431 S.E.2d 353 (1993).9 Hence, to state a prima facie claim 

under the Morris Memorial framework, a plaintiff alleging disability discrimination in the 

employment context must (in part) show he or she is a qualified individual with a 

disability and is “able and competent, with reasonable accommodation, to perform the 

 

9

Early iterations of the Human Rights Act used the term “handicapped.” 

Since 1998, the Act has employed variants of the broader term “disability.” See 1998 

Acts of the Legislature, ch. 178. See e.g. Syl. Pt. 2, Ranger Fuel Corp. v. W.Va. Human 

Rights Comm’n, 180 W.Va. 260, 376 S.E.2d 154 (1988) (“A handicapped person 

claiming employment discrimination under W.Va. Code, 5-11-9 [1981], must prove as a 

prima facie case that such a person (1) meets the definition of “handicapped,” (2) 

possesses the skills to do the desired job with reasonable accommodations and (3) applied 

for and was rejected for the desired job. The burden then shifts to the employer to rebut 

the claimant’s prima facie case by presenting a legitimate, nondiscriminatory reason for 

such person’s rejection. An example of such a legitimate, nondiscriminatory reason is 

that a person’s handicap creates a reasonable probability of a materially enhanced risk of 

substantial harm to the handicapped person or others.”).
15

essential functions of the job[.]” W.Va. Code R. § 77-1-4.2. “The plaintiff bears the 

burden of proving that he is qualified.” Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 

884, 892 (9th Cir. 2001) (discussing the term “qualified individual with a disability” under 

the Americans with Disabilities Act (“ADA”)).

Once the plaintiff makes a prima facie case, “the burden of production 

shifts to the employer to articulate some legitimate, nondiscriminatory reason for the 

negative action taken against the complainant. The complainant then must prove that the 

employer’s reason was pretextual.” Kanawha Valley Reg’l Transp. Auth. v. W.Va. 

Human Rights Comm’n, 181 W.Va. 675, 677, 383 S.E.2d 857, 859 (1989). To 

demonstrate pretext, a plaintiff must demonstrate that “the employer did not act as it did 

because of its offered explanation.” Skaggs, 198 W.Va. at 74, 479 S.E.2d at 584.

In summary, to establish a genuine issue of material fact for trial, Mr. 

Woods was required to show that (1) he met the definition of “disabled” under W.Va. 

Code § 5-11-3(m); (2) he was a “qualified individual with a disability,” as defined in 

W.Va. Code R. § 77-1-4.2; and (3) despite being qualified, he was not hired by Jefferds 

on account of his disability. 

Jefferds concedes the first element, that Mr. Woods has an actual 

“disability” as defined in the Act. The parties’ arguments center on the second element:

whether he was a “qualified individual with a disability” who was able and competent, 

with reasonable accommodation, to perform the essential functions of the job.
16

The parties agree that crouching and climbing ladders are bona fide, 

essential functions of the engineering equipment mechanic job. When the Jefferds 

employees made their decision not to hire Mr. Woods, the employees were reviewing a 

physician’s report saying that Mr. Woods could not complete these two essential tasks. 

The physician’s report, viewed from the reasonable perspective of the employer, showed 

the plaintiff could not perform the essential functions of the job.10 Jefferds contends that, 

viewed objectively from the perspective of Jefferds, Mr. Woods has failed to make a 

prima facie case because he did not show he was qualified for the job. 

Mr. Woods, however, appears to contend that he could have been a 

qualified individual if Jefferds had offered him some reasonable accommodation to 

address his disability. Counsel for Mr. Woods has never suggested what that 

accommodation might be, either before the circuit court or before this Court. Counsel for 

Mr. Woods simply argues that, when confronted with the physician’s report, Jefferds 

should have researched and identified an accommodation that would have permitted him 

to do the job. Mr. Woods cites to Syllabus Point 2 of Skaggs where we outlined the proof 

required to show that an employer has failed to provide a prospective employee with a 

reasonable accommodation:

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 alleged the 

 

10 Jefferds also contends that the physician’s report establishes a legitimate, 

nondiscriminatory reason for not hiring Mr. Woods. We do not reach this argument.
17

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.

Syl. Pt. 2, Skaggs, 198 W.Va. at 58, 479 S.E.2d at 568 (emphasis added). We said in 

Skaggs that in applying these factors, “[a]s with all our employment discrimination 

doctrines, flexibility and common sense must guide decisionmaking.” Id. at 65 n.11, 479 

S.E.2d at 575 n.11. Moreover, “Our law does not require an employer to wear blinders at 

the preaccommodation stage but contemplates an interactive process beneficial to both an 

employer and employee.” Id. at 68 n.15, 479 S.E.2d at 578 n.15.

The record shows that Mr. Woods asked Jefferds for and received two 

accommodations for his disability: a dolly to move heavy objects, and a tennis shoe 

rather than a steel-toed shoe for his prosthetic leg. However, when confronted with the 

physician’s report that he could not safely do tasks essential to the job, the record clearly 

establishes that Mr. Woods did not request or identify necessary additional 

accommodations. Despite the physician’s statement that Mr. Woods could not safely 

crouch or climb ladders, Mr. Woods vociferously argued to the Jefferds employees that 

he could do these tasks and that the physician was wrong. That remains Mr. Woods’s

implicit argument on appeal, that it was unreasonable for Jefferds to rely upon the 

physician’s report. We disagree.
18

Courts that have examined cases similar to the one at bar have repeatedly 

found that, at the time an employer weighs whether an individual can perform an 

essential task of the job, the employer may rely upon the reasonable opinion of a medical

expert who has knowledge of the individual’s condition and the essential functions of the 

job. The prevailing view “is that an employer’s fitness for duty determination will be 

upheld – if reasonable – based on available information and the reasonable opinion of a 

physician familiar with the employee’s work and medical history, and with the functional 

requirements of the job sought.” John J. Coleman, III, Disability Discrimination in 

Employment, § 4:3 (2003).11

 

11 See, e.g., Deeds v. City of Marion, 914 N.W.2d 330, 340 (Iowa 2018) 

(“Employers generally are entitled to rely on a physician’s opinion that the employee or 

prospective employee is medically unqualified for the job.”); Otto v. City of Victoria, 685 

F.3d 755, 758 (8th Cir. 2012) (Employee’s physician declared employee could not 

perform essential tasks of the job. “While it is true that Otto [the employee] told the city 

council that he could still perform these functions, his assertion was undermined by his 

own physician’s determination that Otto’s disability permanently restricts his ability to 

work.”); Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780, 784 (8th Cir. 2006) (“If 

a restriction is based upon the recommendations of physicians, then it is not based upon 

myths or stereotypes about the disabled and does not establish a perception of 

disability.”); Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003) (the 

employer “was entitled to rely and act upon the written advice from [the employee’s] 

physician . . . . In this situation, the employee’s belief or opinion that she can do the

function is simply irrelevant. The [Americans with Disabilities Act] does not require an 

employer to permit an employee to perform a job function that the employee’s physician 

has forbidden.”); Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 443 (6th Cir. 1991) 

(“What is relevant is that [the employer], in fact, acted on its good faith belief about 

plaintiff’s condition based on Dr. Paine’s opinion, and, as the district court pointed out, 

there is no proof to the contrary. . . . In the present case, the district court found that [the 

employer’s] medical staff reasonably relied upon the medical report of plaintiff’s private 

psychiatrist and reasonably interpreted its contents.”); Indiana Civil Rights Comm’n v. S. 

Indiana Gas & Elec. Co., 553 N.E.2d 840, 843 (Ind. 1990) (“[I]f a physical examination 

Continued . . .
19

For example, in Action Industries, Inc. v. Pennsylvania Human Relations 

Commission, 518 A.2d 610 (Pa. Cmwlth. Ct. 1986), a Pennsylvania employer refused to 

hire an individual for a warehouse job that involved heavy lifting based on a medical 

expert’s opinion that, because of a spinal condition, the individual should not do heavy 

lifting. The individual filed a complaint alleging discrimination and, intending to show 

that the employer’s reliance upon the medical expert was a pretext, filed two newlycreated reports contradicting the employer’s medical expert. The Pennsylvania court

rejected the contradictory reports (generated long after the employer made its refusal-tohire decision) and focused its analysis upon the employer’s perception when it received 

the medical expert’s report:

Central to establishing discriminatory intent is the mind-set of 

the employer at the time of its alleged discriminatory conduct.

Thus, the fact that, subsequent to the applicant’s rejection 

certain facts of which the employer was previously unaware 

come to light, cannot operate to create retroactively an intent 

to discriminate. We therefore believe that in cases of 

disparate treatment based upon handicap or disability, an 

employer can have a good-faith defense which negates its 

intent to discriminate where it reasonably relies upon the 

opinion of a medical expert in refusing to hire an applicant.

 

engenders a qualified expert’s opinion an applicant for employment is physically unfit to 

perform the work required and the employer in good faith refuses to hire the applicant for 

that reason, the employer has a good defense to a later action, even though the initial 

expert’s opinion is later proven wrong.”); Unified School Dist. No. 259 v. Kansas 

Comm’n on Civil Rights, 640 P.2d 1291, 1294 (Kan.Ct.App. 1982) (“No contention is 

made that the school district acted in bad faith. The school district refused to employ 

Palmer as the result of independent medical advice given to it that Palmer should not be 

hired because of an existing medical problem that was job related.”).
20

This is not to say that in cases involving handicap 

discrimination an employer can always insulate itself by 

having a physician “sign off” on all hiring decisions. A 

complainant could still show, for example, that reliance upon 

the doctor’s opinion was unreasonable under the 

circumstances, that the employer paid the doctor only if a 

prospective employee was found to be unsuitable, or that an 

employer advised the doctor to declare all blacks, women, 

etc. “unfit.” In these situations intent to discriminate could 

legally exist. . . . [I]t is virtually certain that, except in the 

most extreme cases, contradictory medical opinions will exist. 

The fact that a complainant can find a doctor to contradict the 

opinion of an employer’s doctor, which the employer 

reasonably relied upon in good faith, should not give rise to 

liability, nor do we believe that the Act intended such a result.

Action Indus., 518 A.2d at 613 (citations omitted). See also, Crocker v. Runyon, 207 

F.3d 314, 317 (6th Cir. 2000) (affirming summary judgment dismissing disability 

discrimination claim because the plaintiff, who failed two pre-employment physical 

exams, “failed to offer medical evidence contemporaneous with his nonhiring to 

contradict the evidence upon which the [employer] relied.”).

Even this Court has discussed allowing an employer to rely upon a 

physician’s report, albeit in the narrow context of an employee’s disability (epilepsy) that 

supposedly threatened harm to the employee and others. We said in Syllabus Point 3 of 

Davidson v. Shoney’s Big Boy Restaurant, 181 W.Va. 65, 380 S.E.2d 232 (1989), “[a]s a 

general rule, to satisfy the standard of a serious threat to one’s health or safety, the 

employer must establish that it relied upon competent medical advice that there exists a 

reasonably probable risk of serious harm.” We tempered this rule with the following 

caveat: “[T]he employer’s judgment must be individualized ‘based on a consideration of 
21

the job requirement in light of the [individual’s] handicap, and the [individual’s] work 

and medical history,’ rather than ‘on general assumptions or stereotypes about persons 

with that particular handicap.’” Davidson, 181 W.Va. at 70, 380 S.E.2d at 237 (quoting 

Ranger Fuel, 180 W.Va. at 266, 376 S.E.2d at 160).

We decline to impose a duty on employers to second-guess a reasonable, 

independent medical opinion that an employee, or prospective employee, is not 

physically qualified for a position. When an employer makes a job-related decision about 

an employee or a prospective employee, the employer can and should rely on all evidence 

contemporaneously available to make a fair and proper decision. The arguments posed 

by Mr. Woods essentially demand that employers wear blinders and ignore the 

reasonable, good faith assessments of a medical expert. We reject this approach, and 

hold that under the Human Rights Act, an employer may rely upon the reasonable 

opinion of a medical expert when deciding if a disabled individual is medically qualified 

to perform the essential functions of a job. A reasonable opinion is one made in good 

faith by an expert familiar with the individual, including the individual’s work and 

medical history, and with the essential functional requirements of the job. An employer 

is entitled to rely and act upon the written advice from a physician that an employee 

cannot safely do a task.

In the instant case, we see nothing in the record to suggest that Jefferds 

relied upon any “illegal discriminatory criterion” when it chose not to hire Mr. Woods. 

See Conaway, 178 W.Va. at 170-71, 358 S.E.2d at 429-30. At the time when it made its 
22

employment decision, Jefferds relied upon the report of a physician who had examined 

Mr. Woods and had assessed his abilities, in light of the functional requirements of the 

engineering equipment mechanic job. Mr. Woods was required to show, at the time he 

sought employment, that he was physically qualified to perform the essential functions of 

the job. The physician determined that Mr. Woods was medically unqualified for the job, 

and on this record Jefferds could reasonably rely upon that opinion.

Moreover, to meet the definition of a “qualified individual with a 

disability,” Mr. Woods needed to offer some triable proof that he was able and 

competent, “with reasonable accommodation, to perform the essential functions of the 

job.” W.Va. Code. R. § 77-1-4.2 (emphasis added). To establish that Jefferds breached 

its duty to provide a reasonable accommodation, Mr. Woods was required to show, 

among other things, that “a reasonable accommodation existed that met the plaintiff’s 

needs[.]” Syl. Pt. 2, Skaggs, 198 W.Va. at 51, 479 S.E.2d at 561. Mr. Woods refused to 

discuss, and specifically refused to identify, any necessary accommodations in addition to 

those accommodations previously agreed to.

In this case, Mr. Woods sought two accommodations during interviews 

with Jefferds, and the parties agreed to both of those accommodations. With regard to 

the physician’s report that Mr. Woods could not safely squat or climb ladders, Mr. 

Woods made no reasonable and specific requests for accommodation. Moreover, we see 

no evidence in the record that either party was aware, then or now, of a reasonable 

accommodation that could meet Mr. Woods’s needs. In other words, because we see no 
23

genuine issue of material fact in the record to suggest that a reasonable accommodation 

existed, Mr. Woods did not establish his claim that Jefferds failed to reasonably 

accommodate his disability.12

IV. Conclusion

Mr. Woods failed to establish a prima facie case of intentional disability 

discrimination. The employer, Jefferds, was entitled to rely upon the reasonable 

physician’s report indicating that Mr. Woods could not perform essential tasks of the job 

because of his disability, and Mr. Woods failed to show that any reasonable 

accommodations were demanded or even existed. Accordingly, the circuit court’s 

October 4, 2017, order correctly granted summary judgment to Jefferds.

Affirmed.

 

12 Plaintiff Woods also appeals a circuit court ruling limiting the damages 

that a jury could award in his case. Because we find that the record supports the circuit 

court’s summary judgment finding that the plaintiff failed to establish a triable issue 

regarding his claim of intentional discrimination, we decline to address the arguments of 

the parties regarding damages.