*1
Dorothy COFFMAN
WEST VIRGINIA BOARD OF
REGENTS, Corporation, A Clark,
Douglas A. et al.
No. 17904.
Supreme Appeals Court of Virginia.
Decided June
Dissenting Opinion Sept. Brewer, Galeota,
Susan S. William E. Johnson, Steptoe Clarksburg, & for W.Va. Regents Bd. of et al. Karlin, Morgantown,
Allen N. for W.Va. Chapter Lawyers of Nat. Guild. Morgantown, Byrne, William F. amicus curiae, Develop- for W.Va. Advocates for mentally Disabled and W.Va. Trial Law- yers Assoc. Williams,
Jacques R. Hanstead & Ham- stead, Morgantown, Dorothy Coffman. *2 cleaning BROTHERTON, performing location other tion to Justice: sig- assert that tasks. two ap- Virginia Regents Board of The West First, developed. problems nificant there Court of Mo- peals an order of the Circuit complaints employees from other that were mo- County denying the Board's nongalia her share pulling was not of Coffman in of jury favor tion to set aside verdict Second, load. Coffman continued to com- Dorothy In the ac- appellee, Coffman. pain. plain of The record indicates back below, that she was tion Coffman claimed 21, 1981, Coffman that on October was injury of a back handicapped as result emergency hospital room at the sent to wrongfully appellants1 and that reporting that her back had started to after Virgi- her at West terminated 30, 1981, again. On one of hurt November University Hospital of that nia because orthopedists had examined Coff- below, forth handicap. For the reasons set previously that man recommended Coff- judgment we Circuit reverse longer in either the man no house- Monongalia County and Court of remand departments keeping dietary or and that judgment fa- with instructions enter placed position not be in a that she appellants. vor of the prolonged sitting. Dorothy employed as a Coffman was personnel manage- On December University Virginia I at the West Custodian including representatives, Thomas ment Morgantown, Virginia. Hospital Serpento, met with discuss her Coffman October, 1980, injured In her back Coffman meeting, At that employment situation. garbage During emptying while cans. Serpento told that her Coffman Mr. back following suf- injury, Coffman months continuously bending indicated hurt pain which interfered with her fered back Mr. Serpento limitations. testified that a ability duties of I is expected to work a bend- Custodian June, 1981, her su- Coffman submitted percent ing position approximately fifty pervisors reports of two unsolicited provid- the time. Based on the information physicians that Coffman who recommended medical recommen- ed Coffman and the heavy lift- avoid activities which the physicians dations from who had exam- orthopedist, ing. physicians, One of her, Serpento Mr. ined recommended temporarily concluded that Coffman was supervisors separat- she Coffman’s that missed work the Coffman then disabled. housekeeping dietary de- ed July, during time she month of understanding partments with the that a temporary disability received total benefits posi- if begin search would to see another compensation.2 from workers’ Coffman’s for Coffman available within the was supervisors her to Dr. then directed Ed University structure. University Morgan, Medical Director University, at Health Service West By memorandum dated December of her medi- for a more detailed evaluation assigned to work with was problem cal and for recommendation of position, unit custodian on the another Morgan Dr. concluded that limitations. cleaning consisted individual work; “okay light can lift Coffman was hospital. patient rooms at the Coffman’s 10-15 lbs.” however, in she unique, was cleaning “high” recommen- did while a co- with these medical Consistent cleaning. The dations, did the memo- Coffman returned to work worker “low” garbage posi- did not she randum indicate whether this August, was relieved permanent. By let- handling temporary from loca- tion was duties and-was moved Connelly During period, Douglas Coffman was examined Clark and R. are A. Marc action, orthopedist, appellants. At the of this Mr. also Connelly time who advised she lift another supervisor immediate Coffman's pounds prolonged than and avoid no more ten housekeeping department at the West in the Virginia repeated bending. University Hospital and Mr. Clark was supervisor housekeeping de- an associate partment. 14, 1982, January major ter dated Coffman’s su- its one or more of an individual’s life 5-ll-3(t) pervisor (Supp. notified her that if a activities.” W.Va.Code § elsewhere, 1987). not found for her she would from her
have to be terminated as a *3 Virginia Rights In 1982 Human the West January I Custodian as of 1982. The regulations promulgated Commission in search for another was unsuccess- implement interpret pro tended to and ful, and Coffman’s was termi- Virginia Rights visions of the West Human January nated on 1982. relating Act to discrimination. 24, 1984, January On Coffman filed a W.Va.HRC, See Regulations, W.Va.Code complaint Mononga- in the Circuit Court 5-11, I, 1,1981.4 August In Series draft § charging County appellants lia that the ing regulations, Virginia Hu wrongfully discharged her because her Rights man concluded in Commission i.e., handicap, November, injury. back determining an is enti whether individual jury the case was tried before a protection Virginia tled to under the West which rendered verdict favor of Coff- Act, Rights Human consideration must be $55,600.00. inman the amount of The given to whether “reasonable accommoda Regents appeals, assigning Board of as by employer tion” would enable the error the trial court’s failure to direct a perform required. individual to the services appellants argue in its The verdict favor. Specifically, Regulation provides 4.01 in submitting that the trial court erred shall, part on the basis “[n]o question of reasonable accommodation to handicap, subject any qualified handi jury “quali- because was not a capped person employ to discrimination in handicapped person” fied entitled to de- employment, ment. ...”5 “As it relates to expect mand or reasonable accommodation. ‘qualified handicapped person’ is one who competent, is ac able and with reasonable employment rights of the handi- commodation, perform the essential governed capped by Virginia are the West question.” Regulation Act, functions of the Human 5-11-1— W.Va.Code § (1987). 4.0 2.6 “Reasonable accommodations prohibits 5-11-19 The Act em- § ployment against adjustments are or modifications to the discrimination an individ- assignment competent perform ual is or work environment to able handicapped person to fulfill em the services even with his handi- enable a cap.3 “handicap” “any physical ployment responsibilities.” Regulation A is 4.03(1).7 substantially mental lim- 5-ll-9(a) (1987) tal, provides special organs, respiratory_" W.Va.Code that it sense “Ma- § discriminatory practice jor employment. shall be an unlawful See Life Activities” include any employer to discriminate Regulation Handicap “[f]or discrimination law 2.05. hire, respect compensation, individual with tenure, Virginia largely in West is derived terms, privileges conditions or of em- accompany- federal Act and the Rehabilitation ployment compe- if the individual is able and ing regulations. See The Rehabilitation Act of perform the services even if tent to (1982); C.F.R. 29 U.S.C. 701-796Í § handicapped_” such individual ... 84.3, 84.11, 84.12 convenience, throughout opinion the
4. For 84.3(k) (1987). 6. See 45 C.F.R. Although regulations "Regulation.” are cited as parties not raised to this we note include, but 7. “Reasonable accommodations” regulations August that the became effective on are not limited to: 1, 1982, ap- approximately after the six months (a) Making the worksite accessible to and us- pellants employment. Coffman’s terminated persons; handicapped able (b) equipment or tools so 2.01, Modification of 5-ll-3(t), following Regulation § Code handicapped person; they can be used "any physical "handicap" or mental defines impairment (c) restructuring and modified work Job substantially limits one or schedules; person’s major Regu- more of a life activities.” (d) or methods of Alteration of the amount “physical impairment” as lation 2.02 defines training; "any physiological disorder or condition or cos- devices; (e) adaptive Acquisition aids or disfigurement metic normality affecting or anatomical loss or ab- (f) should in- Reasonable accommodation one more of the follow- preparation workers for ing body systems: neurological, clude the of fellow musculoskele-
I. with reasonable accommo- competent, dation, the essential functions ar appellants' first We address added).8 (emphasis question.” “qualified gument was not a that Coffman Accordingly, Coffman was protection entitled handicapped person” if she was able and person Rights Act the West under competent perform the essential func- could not the essential because she tions of a with reasonable ac- without Custodian functions of assert that commodation. accommodation. right to “reasonable accommodation” plaintiff until the not arise unless and does II. *4 sufficiently to the court that demonstrates matter, the As record a threshold regard to perform job
she
the
without
can
perform
shows
could not
the
that Coffman
disagree. The lan
We
accommodations.
I,9
essential
of a Custodian
the
quali
functions
Regulation 4.02 is clear: a
guage of
job
ques-
for
she
hired.10
person is “one
is able
handicapped
fied
simple
assigned, perform
mending
employee,
6.
to obtain their under-
When
the new
repairs
handicapping
upholstery.
standing
and
of linen and
limitations
move,
May
set-up
light-
cooperation
accepting
7.
and take down
in
other reason-
their
equipment.
employee.
weight displays,
for the
chairs and
accommodations
new
able
water,
walks,
Regulation
steps
4.03.
8.
ice or snow from
Clear
brooms,
using
and
shovels or abra-
entrances
Arline,
480 U.S.
107 S.Ct.
8.
School Bd. v.
sives.
Cf.
(1987). Discussing
L.Ed.2d 307
the
Requisition parts
supplies and
9.
and
recom-
whether,
inquiry
determine
to be made to
mend
needs.
material
context,
employment
neat,
an individual is an "other
orderly
10. Perform work in
manner
qualified person” as defined in 45 C.F.R.
wise
building
safety
and
and within established
84.3(k)
the Arline Court
stated:
§
codes.
handicapped person is not able to
"[W]hen
perform
11.
area.
Maintain clean work
job,
essential functions of the
the
the
assigned
duties as
12. Perform other related
any
must also consider whether
‘reason
court
training purposes.
emergencies
for
or
would
accommodation’
able
handicapped person
perform those
enable the
to
injur-
10.When
returned to work after
Similarly,
S.Ct. at 1131 n.
functions.” 107
17.
back,
ing
appellants
her
relieved her of
Carlin,
(E.D.Pa.
F.Supp.
Trimble v.
633
argued
in
duties,
garbage handling
her
moved
from loca-
1986),
person is
the defendant
that "a
hospital,
to
and in-
location within
perform
‘qualified’ unless he can
all of the
not
lifting
prolonged
structed
to avoid
and
her
question
any
in
without
duties of
bending.
adjustments
Despite
and
these
modifi-
F.Supp.
type
thereof."
at
of modification
cations, however,
complained
Coffman still
rejected
court
defendant’s
370. The Trimble
pain
subsequent medical
back
and
evaluations
stating
obliged
argument,
that "the Court is
perma-
she be
resulted
recommendations that
mail
determine
review the duties of a
handler to
nently
housekeeping
separated
and
perform
func
Trimble can
the essential
whether
dietary departments. While modifications such
position with ‘reasonable accommo
tions of the
long-handled
may have enabled
tools
Coff-
so,
physical
his
limitations.
If
he is
dation’ to
‘qualified handicapped person.”’
required bending,
perform
duties which
man
Id.
envision,
sug-
Coffman has
we cannot
and
not
gested, any type of reasonable modification
job description
lists the fol-
9. The Custodian
lifting
which would have accommodated
lowing principal duties:
Thus, the uncontradicted
restrictions.
testimo-
ny
dust,
and
evidence established conclusive-
scrub,
wash,
medical
polish
Sweep, mop,
1.
and
ly
perform
walls,
the essential
stairs, furniture,
windows,
that Coffman could not
floors,
radia-
lifting
bending requirements of her
tors,
and
ventilators and other items.
floors,
a matter of
Coff-
We therefore find that as
law
fix-
and disinfect bathroom
2. Clean
tures, stalls,
accommodation,
man,
even with
plumbing
and other
facilities.
duties of the
for
was unable to
disinfect beds
other furni-
Clean and
and
3.
appellants
hired and the
hospital
which she was
equipment
and
rooms
ture
position.
in that
not
“[Wjhere
to retain her
wards.
evidence,
considered,
trash;
fairly
replace
supplies; re-
all of the
Remove
toilet
4.
bulbs;
only, question
points
light
of law
one conclusion
place accessible
lock
presented
is
is to be answered
rooms for tenants or authorized staff
unlock
court,
jury."
Finance Co. v.
by supervisor.
not
approved
if
action
Beneficial
Collins,
linens,
S.E.2d
227-28
W.Va.
Change
draperies,
beds
make
holding,
attempt
do not
so
we
as needed.
tion we address is whether “reasonable ac
rejected
The district court
a recommenda-
commodation”
tion that the
“be reinstated to the
doing only
“high”
retain Coffman
position of distribution clerk
other
position,
the unit
created for
position which he
was able to
longer perform
Coffman when she
no
could
light
of his
handicap.”
and mental
the duties of a
Recognizing
Custodian I.
Id. at 1183. Reasoning
“[preferential
the similar treatment of reasonable accom
reassignment
employees
modation under the West
was not
intended
the Rehabilitation
Rights Act and the federal Rehabilitation Act,” the court concluded that “[examina-
Act, we
review
decisions of the federal
tion of
regulation
lends
[sic]
courts which have addressed the issue of
ultimate
duty
conclusion that the
to reason-
alternative
as reasonable ac
ably
only contemplates
accommodate
ac-
commodation for a handicapped employee
commodation of a
employee’s
longer perform
who can no
present position.
It does not
include a
which she was hired.
in Ald
example,
For
requirement
reassign
or transfer an em-
General,
erson v.
Postmaster
F.Supp.
ployee
position.”
to another
Id.
at
(W.D.Okl.1984),
the United States Dis
Wimbley
See also
Bolger,
*5
F.Supp.
642
trict Court
for the Western District of
(W.D.Tenn.1986) (reasonable
accommo-
Oklahoma considered whether
the Postal
require
dation does
agency
not
federal
to
Service had violated the federal Rehabilita
handicapped
transfer
employee
job
from
tion Act
terminating a mail carrier after
for
employed
which he was
to some other
he suffered
injury
job.
a knee
on the
provide
to
him work
per-
he can
recognized
court
that under the relevant
form);
Corp.,
Bento v. I.T.O.
F.Supp.
regulations,
1613.704(b),
29 C.F.R.
rea
§
(D.R.I.1984) (Rehabilitation
Act
sonable
“job
accommodation
include
obligate
does not
companies
job
to rewrite
restructuring”
nothing
but stated that
descriptions).11
regulation
required assignment
to a
Rather,
different
the court concluded
Tisch,
Most recently,
in Carter v.
that
“regulation clearly
to
(4th Cir.1987),
referred]
F.2d 465
the United States
making
particular job,
job
not another
Appeals
Court of
for the Fourth Circuit
for
handicapped person
which the
was not
considered whether the Postal Service was
hired,
handicapped
accessible to
persons.”
required
carrier,
to accommodate a mail
F.Supp.
at 55.
handicapped by asthma, by assigning him
permanent
to
light duty position.
Citing
Carlin,
in Carty v.
Similarly,
Alderson, Carty,
Wimbley,
F.Supp.
(D.Md.1985),
Fourth
the United
Circuit observed that
case law is
States District Court for the District of
“[t]he
clear that
if
Maryland
handicapped employee
considered whether
the Postal
can-
fired,
job,
Service violated the
not do his
he can
Rehabilitation Act
and the
discharging
employee
employer
required
assign
laborer/custodian
not
to
him to
handicap.
because of a
and mental
Id. at 467.
alternative
employment.”12
parameters
handicapped employee.
delineate the
Although they
reasonable accom-
are
required
modation. Such a determination must
not
to find
be made
another
for an em-
ployee
case-by-case
who is
on a
not
for the
he or
basis.
doing, they
deny
employee
she was
cannot
an
employment opportunities
alternative
ably
reason-
Arline,
School Bd. v.
480 U.S.
Cf.
employer’s existing
available under the
S.Ct.
court (HRA) provide in 1981 law, was amended jury improperly matter rights handicapped,2 and in this reassign- permitted to consider Coffman’s W.Va.Code, 5-ll-9(a) amendment, did ment to the unit where she language “high work” as reasonable accom- was used: find that reason- modation. Because we discriminatory “It shall be an unlawful does not include as- able accommodation practice, upon a fide unless based bona signment job, to a new or different we except occupational qualification, or conclude that the lower court erred fail- applicable security upon where based ing appellants.16 to direct a verdict for by the regulations established United reasons, foregoing judgment For the or States or the state West Monongalia County of the Circuit Court of agencies political subdivisions: its reversed, aside, set and the the verdict is “(a) any employer For to discriminate is remanded with instructions to enter case respect to com- an individual with appellants. judgment favor hire, tenure, terms, pensation, conditions remanded.
Reversed and if privileges the indi- *7 competent and vidual is able MILLER, Justice, dissenting: if such individ- the services even Provided, handicapped: or majority’s cavalier ual is blind My dissent is to the law, not unlawful discrimina- of Ms. That it shall be -determination that as a matter employer tory practice for an observe the benefits of her Coffman cannot obtain we, some challenged been estimated that there are party the fact and 1. It has 16. No has therefore, persons acknowledge physically hand- twenty-two that Coffman was disabled million We, Virginia States, icapped however, law. yet percent as defined of United less than 5 in the handicapped as note that she became employed. The human and economic them are job during injury the result sustained on of unemployment and dis- of this is obvious cost employment. regard, In this course of her Boeing turbing. Wash. 2d v. 90 Holland why did not are concerned as to we pursue 621, 1, (1978) P.2d 623 n. 388 n. compensation bene- a claim for workers’ Note, Legal (citing in the Land: Strate- Abroad 30-day period temporary beyond of total fits Physically Rights gies of Effectuate issue disability. do not raise the The Disabled, (1973); Equal Em- Geo. L.J. 1501 therefore, we, compensation do and of workers' Proposal, 10 Co- ployment the Disabled: A and the intent of the address it. We note that not legislature (1974)). See also Soc. Probs. 457 lum. J.L. & enacting of the handi- inherent in the Nichols, Prohibiting Disability Dis- Iowa’s Law Virginia provisions Human capped of the West Overview, Employment: An in crimination equal opportunities Rights for Act was to assure Note, Accommodating (1983); Drake L.Rev. 273 housing employment. handicapped in Meaning Handicapped: Discrimina- The Thus, we cannot con- 5-11-2. § W.Va.Code Act, the Rehabilitation Section 504 tion Under legislature intended the -handi- that the clude (1980). 55 N.Y.U.L.Rev. capped provisions of the West Human compensa- Rights source Act as an alternative Acts ch. 128. W.Va. injuries 2. sustained on the in the statute. Our pension, cept fide inherent any bona provisions insurance, retirement, degree group substantial parallels statute to a system not plan Act, or welfare benefit states in which material Rehabilitation subterfuge to evade the adopted as a part: provisions of this subdivision^]” handicapped in- “No otherwise “handicap” is defined mean The term shall, States ... dividual United impairment mental “any physical or handicap, his be ex- solely by reason of substantially limits one or more of an indi- in, de- participation cluded major life activities.”4 vidual’s of, subjected or be nied the benefits majority The refers to the any program or ac- discrimination under out regulations, pointing Commission tivity receiving Federal financial assist- “[although raised note 4 that not 29 U.S.C. 794 ance....” § “August their effective date was parties,” key federal act’s definition of “hand- The 1,1982, months after the approximately six icap” is “a or mental employ- appellants terminated Coffman’s substantially limits one or more of majority the fact ment.” The overlooks major person’s such life activities[.]” court, by order entered No- that the trial 706(7)(B)(1973).5 U.S.C. § trial, 17, 1986, prior to the ruled vember rely plaintiff could not on the Davis, Supreme 442 U.S. at The Court reg- regulations. majority utilizes the 412-13, L.Ed.2d at 99 S.Ct. at any explanation as to how ulations without statutory language, pointed apart from they they appeal used on can be right of accommodation: to a of the trial the circuit blocked out may advances enable attain- “Such also court’s order. goals imposing ment of these without applying authority some sub- There is administrative undue financial and bur- regulations. The sequently promulgated Thus, upon a State. situations dens Supreme United States Court Southeast- modify an exist- arise where a refusal to Davis, College 442 U.S. Community ern ing program might unreasonable become 2361, 2366, 60 L.Ed.2d 99 S.Ct. discriminatory. Identification of appeals noted that refusal to ac- those instances where a regula- applied “administrative court per- the needs of a disabled commodate promulgated tions that had been while to discrimination son amounts Supreme appeal pending.” The Court was to be an im- continues regulations in on to discuss the then went responsibility portant of HEW.” proper reaching its conclusions as to scope handicap law. right of reasonable accommodation plainer made even Bd. School indepen- pointed out that It should be *8 Arline, County, Nassau Florida v. regulations, the dently of the Commission’s 1123, 1131, 273, 287, 107 S.Ct. right is a con- U.S. to reasonable accommodation Both the 4. 5. The federal remained crimination of the ness separately defined. 5-11— individual," discrimination ll-9(a), The HRA was amended in 1973 any tal "[T]he only. disability 3(t). individual who and the definition of unchanged since 1981. term prohibition against employment dis- 1973W.Va. Acts ch. 25. in material act’s definition of a which for ‘handicapped individual’ means handicapped, W.Va.Code, (i) part, is: has a such individual consti- handicap physical “handicap" have W.Va.Code, 5— “handicapped Blindness is W.Va.Code, 11—3(s). of blind- preclude or men- 5- chapter. ‘handicapped pected tutes or garded record vided from vocational rehabilitation services § Rehabilitation such 706(7) (1974). ... (i) person’s pursuant [F]or [******] of such an substantially to benefit has a results in a substantial having physical individual’ major purposes Act of subchapters such an (ii) in terms of impairment, limits one or life can or mental activities, (ii) 1973, 29 U.S.C.S. ... means impairment.” reasonably of this I and III of this employability handicap any person (iii) more of chapter, be ex- has a is pro- The re- to 307, Supreme L.Ed.2d where the go court should not have let the case to the jury. out, Court in note 17 stated: previously pointed major- As ity cursory analysis makes of the handicapped person “When a is not able ignores plaintiff’s facts and most of the the essential functions of the evidence.6 job, the court must also consider whether any ‘reasonable accommodation’ majority states at the outset that as employer handicapped would enable the plaintiff a matter of law the could not
person those functions. Ibid. perform the “essential functions” of a Cus- Accommodation is not if it I, disposes todian of the case based imposes either ‘undue financial and ad- upon several federal court decisions under grantee, ministrative burdens’ on a 1973, the Rehabilitation Act of 29 U.S.C.A. Community Southeastern College v. seq. et These cases hold that the § Davis, supra requires ... or ‘a funda- duty of reasonable accommodation does not mental alteration in the nature of [the] require employer reassign an a handi- n program.’ Id., at 410 S.Ct. [442 U.S.] [99 capped employee to another where at 2369].” the handicapped employee longer can no State courts have also reached the con- perform with reasonable accommodation general language clusion that under the essential duties of the statute, handicap right of reasonable which the legal worker was hired.7 This implied. accommodation is Cerro Gordo provided conclusion upon sole basis County Facility Care v. Iowa Civil majority which the overturned jury’s Comm’n, (Iowa 1987); 401 N.W.2d verdict and directed a verdict for the em- Boeing Holland v. 90 Wash.2d ployer. 388-89, (1978)(Eh Banc). 583 P.2d majority’s wrong result is for two Thus, apart it is clear that from ex- First, reasons. cases relied on press statutory language, right of rea- majority, exception, one with were all de- sonable accommodation does exist. For cided before School Bd. Nassau Coun- reason, agree majority’s with the Arline, ty, supra, recog- Florida v. Syllabus conclusion in Part I and in Point part concept nizes that as a of the of rea- concept to the extent that the of reasonable accommodation, sonable alternative em- part accommodation is a ployment opportunities explored: must be Contrary majority’s statute. asser- “Employers have affirmative obli- tion, I am not even sure that the Board gation to make a reasonable accommoda- disputed this conclusion as it stated on handicapped employee. tion for a Al- page 12 of its brief: though they are not to find an- employe[e] applicant “Where an is other for an who is not ‘qualified per- found to be a doing, for the he or she was son,’ make they deny an employee cannot alterna- ‘reasonable accommodation’ employment opportunities tive reason- impairments known or mental ably employer’s available under the exist- person, possible to the extent with- ing policies.” 480 n. U.S. at 289 imposing hardship out undue on the con- at 1131 n. S.Ct. L.Ed.2d at 321 n. employer’s duct of the business.”
II.
Second,
developed
the
facts were
be-
low,
my
came
The heart of
dissent lies
the mis-
when Ms. Coffman
back work
18, 1981, she
treatment of the facts of this case in order
on December
was able
assigned
to come to the conclusion that
the trial
her
tasks. These tasks
1985); Wimbley
Bolger,
F.Supp.
majority’s
analysis
6. Most of the
factual
is con-
v.
majority opinion.
(W.D.Tenn.1986);
tained in note 10 of the
Corp.,
Bento v. I.T.O.
(D.R.I.1984);
F.Supp. 731
Alderson v. Postmas-
Tisch,
(4th
E.g.,
F.2d
Cir.
Carter
General,
(W.D.Okla.1984).
F.Supp.
ter
Carlin,
1987);
F.Supp.
(D.Md.
Carty v.
being
by one
working
patient room
cleaned
each
performed by Ms. Coffman
were
coworker, resulting
plaintiff,
in an
after her return
worker. The
with a
in tandem
cleaning.
injury,
This
following
of room
her work-related
method
work
efficient
by
hospi-
assigned
terminated
the
another custodian
arrangement was
to assist
was
showing
it
ineffi-
plaintiff
that was
did the
cleaning the rooms. The
tal without
expensive.
work,”
generally
“high
cient or more
which
involved
assisting
cleaning the mirror and sink and
case was what
issue in this
The central
changing
and mak-
the other custodian
of a Custodian
the essential functions
were
ing the
The other custodian would
bed.
this critical factual
majority
The
decided
I.
work,”
in-
which
ordinarily do the “low
exclusively
“job
at the
by looking
issue
cleaning the floor around the bed
volved
The
into evidence.
description” introduced
plaintiff
The
testified
and the commode.
however,
record,
that
this doc-
reveals
records,
kept
her coworker had
which
that
ument,
Light Duty,”
I
entitled “Custodian
they
doing more work
indicated that
the
description
not intended
was
being
than
done
individu-
as a team
was
perform.
plaintiff
hired to
duties the
was
expressed
also
her belief
al
She
workers.
Serpento, the director of
Mr. Thomas S.
completing
that she was
sufficient work
Office of Personnel West
the
“doing
job.”
and was
he
University,
that the document
testified
plaintiff’s
the
vo-
gener-
This was confirmed
intended to serve as a
prepared was
expert,
that
Light
I
cational
who testified
design of all Custodian
ic or master
per-
throughout
university Virginia University employed some 462
Duty positions
the
employed.
job category.
It
The
custodians were
was
sons in the Custodian
where
specifying
plaintiff
position description
expert
job
that
not a
believed
responsibilities that a
terminated
performing
individual duties and
when she was
was
I must fulfill.
person
hired as Custodian
a “make work”
She stated
was not
generic job description
arrangement
He stated that this
partnership
which
only by
hospital,
but
utilized not
plaintiff
doing
was
a form of rea-
was
was
housing department,
physi-
by the
employee.
also
accommodation for the
sonable
plant, and other areas where Custodian
cal
expert
plaintiff
stressed that the
also
He
II’s were utilized.
baskets,
I’s and Custodian
required to lift
waste
was
description
it is not a
of a
reiterated that
ordinarily heavy.
also
which were not
She
person fills.” He also ac-
“position that a
large facility,
that in such a
there
believed
knowledged
not all custodians
office areas
must have been extensive
specified
every
of the duties
each and
one
plaintiff
as-
could have been
where
description,
emptying
such as
in the
only light
signed
dusting and where
to do
trash cans.
lifting
ordinarily be found. She be-
would
opportunities
lieved these were reasonable
majority
plaintiff
that the
testified
restructuring
plaintiff’s job,
which
generic job
de-
of the tasks listed
undue
could have been undertaken without
performed by Custodian
scription were not
employer in
of ex-
hardship to the
terms
hospital.
in her area of the
I’s who worked
pense
productivity.
or loss of
employees
in this
classifica-
practice,
functions, not all of
perform different
the essential functions
What constitutes
require
same level of
issue in
key
of a
can
factual
become
Paradoxically,
the record re-
demands.
cases. This was
discrimination
accommodation had
flects that a reasonable
here,
custodial
particularly true
as the
had en-
made
been
people
performed by a number
work was
in a
plaintiff
to fulfill
abled
cleaning
performed
variety
tasks.
manner,
yet
satisfactory
notwithstand-
primary
job function
The essential
evidence,
ing
she was terminated.
Mo.,
County,
issue in
v. St. Louis
Simon
Cir.1981),
denied,
(8th
cert.
performing
656 F.2d
plaintiff had been
The work
*10
976, 102
1485,
judgment for the defendant. As in our performed by crews of thirteen to indicating there was evidence that not eighteen installers, which included instal- police perform all officers lers of various index levels of skill and all the duties the maintained ability. The tasks that were inconsistent appeals were essential. The court of re- plaintiff’s with the work restrictions in- versed the district court and remanded cabling. volved iron work court following with the instructions: found that while these tasks were essential remand, “On the district court should performed by group, functions to be requirements consider whether the these functions were not essential to police County, officers of St. Louis particular performance individual’s of the testified to at trial Colonel Kleink- job. flexibility company’s Given the necht, reasonable, legitimate, are assignment system work and the facts that necessary requirements positions all involving heavy work exertion and that department. within The district exposure insignificant dust formed such an court should determine whether the abili- portion job performed by of the total ty to make a forceful arrest and the plaintiff, the court concluded that these ability perform all of the duties of all tasks were not an essential function of her positions department within uniformly required in fact are of all offi- Ackerman, the court found that the uniformly required, they cers. If not plaintiff proven prima facie case require- should not considered actual demonstrating that she could Also, positions. ments for all considera- essential functions of the with rea- given tion should be to Simon’s actual handicap. sonable accommodation to her physical condition in combination with Si- The reasonable accommodation involved police experience, mon’s and further de- employer permitting a sim- to wear exactly terminations made as to what mask, ple paper reassignment department functions within the he has involving cabling duties or iron work so perform. Final- abilities pull that she not be would ly, the court should determine whether twenty-five pounds, lift more than and the necessary
the accommodations order particular function en- elimination of one employ po- Simon as a commissioned tirely. The court found that the “[w]ork F.2d lice officer are unreasonable.” 656 proposed by plaintiff] modifications (Footnote omitted). at 321. [the assignment would entail to others of similar case is Ackerman v. Another particularly representing strenuous tasks Co., Inc., F.Supp. Elec. Western historically insignificant percentage (N.D.Cal.1986), which involved an In re- F.Supp. work.” 643 at 847. [her] condition, with an asthmatic who was ter- employer’s hardship de- jecting undue physicians minated from after fense, court the Ackerman stated: indicated she should not strenuous mere fact that accommodation exposure “[T]he physical activity and should avoid (even if might reassignment involve court, making to dust. The after a detailed preferential) some duties to other em- employer’s analysis of the factual undue ployees does not alone establish assignment system and the nature of hardship.... actually performed by persons in tasks *11 84 Company judgment.”
“The burden is on the
to
bias rather
than business
showing
come forward with evidence
See also Trimble v.
F.Supp.
633
distinctly
transfer to a
new or different
(E.D.Pa.1986);
Bolger,
Guinn v.
367
598
performed cleaning patient
The duties she
—
(D.D.C.1984);
F.Supp. 196
Commonwealth
changing
rooms and
bed clothes —were all
Pennsylvania
v.
Relations
performed by persons
normal duties
Comm’n,
98,
84 Pa.Commw.
which an must ac- conclusion, by passage as illustrated commodate a disabled is a diffi- Bowen, from B & O Railroad Co. v. problem. cult 299, 311, (1984): Md.App. 482 A.2d [*] [*] [*] [*] [*] [*] “Various other cases have also placed by employer “Reasonable accommodation the burden on the to show a employer may many take It probability employ forms. that an only required to an extent that a refusal ee’s would render him unable to provide some accommodation would be his duties or to them endangering safety discrimination itself. The is re- without his health or Higgins v. Maine quired reasonably. to act See Reasonable- or that of others. ness, standard, (Me. Central Railroad a flexible must mea- A.2d 288 1984); Chicago North Rail only by employ- & Western sured not the disabled desires, Industry road v. Wisconsin Labor & ee’s needs and but also Commission, Review economic and other realities faced 98 Wis.2d Dairy Equipment employer. (1980); employ- We examine the N.W.2d 819 Dept. Industry, Co. v. Labor & Hu er’s to determine em- motive whether the Relations, man ployer discriminatory was moved 95 Wis.2d
85
(1980);
383,
(1986);
N.W.2d
Crowley
330
Kimmel v.
352
134
W.Va.
S.E.2d
Hard
Wash.App. 78,
Corp.,
Maritime
23
596
Trucking,
Poling
man
Inc. v.
Trucking
(1969);
P.2d 1069
Panettieri v.
Hill
C.V.
Co.,
575,
Inc., 176 W.Va.
I am authorized state Justice joins
McGraw me in this dissent.
STATE of West
Terry Lee FORSHEY.
No. 18549.
Supreme Appeals Court of Virginia.
April