                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Randall Todd Chapman,                                                            FILED
Plaintiff Below, Petitioner                                                    November 22, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0466 (Cabell County 10-C-526)                                      OF WEST VIRGINIA



Verizon Communications, Inc., Verizon West Virginia, Inc.,

Todd Howard, and Larry Menninger,

Defendants Below, Respondents



                              MEMORANDUM DECISION
       Petitioner Randall Todd Chapman, plaintiff below, by counsel J. Patrick Stephens and
Abraham J. Saad, appeals the Circuit Court of Cabell County’s April 1, 2013, “Order Granting
Defendants’ Motion for Summary Judgment.” Respondents Verizon Communications, Inc.,
Verizon West Virginia, Inc., Todd Howard, and Larry Menninger, defendants below, by counsel
J. David Fenwick, Victoria L. Wilson, Tennille J. Checkovich, and Robert F. Holland, respond in
support of the circuit court’s order.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming is appropriate under Rule 21 of the Rules of
Appellate Procedure.

        Petitioner was employed by one of the Respondent Verizon companies. Petitioner
explains that on Friday, June 12, 2009, he was involved in an automobile accident on his way to
work. While being transported to the hospital in an ambulance, petitioner telephoned his
supervisor, Respondent Howard. Howard reportedly told petitioner not to worry about work and
that he would take care of everything. At the hospital, petitioner received twenty staples for a
laceration on his head. He also had a bruised sternum, abrasions, and back pain. He was released
from the hospital after a few hours with a written excuse to miss three days of work. Petitioner
went to work on Monday, June 15, and was given light duty assignments for two weeks.
Petitioner required no further medical treatment and had recovered from his injuries within one
month of the accident.

        In order to have his June 12 work absence excused, petitioner submitted a request for
Family Medical Leave Act (“FMLA”) time. Petitioner’s wife completed the request form and
submitted it to the Verizon Absence Reporting Center (“ARC”), which is apparently a
centralized office responsible for reviewing and approving leave requests for Verizon employees.
ARC decided that petitioner’s condition did not qualify as a “serious health condition” as defined

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by the FMLA, thus ARC denied petitioner’s request to treat June 12 as a FMLA day. Petitioner
appealed the denial, but ARC denied it a second time. Thereafter, citing to the ARC denial and to
petitioner’s “unsatisfactory overall performance,” Verizon advanced petitioner to Step 4 of its
attendance policy and suspended him for ten days.

        Petitioner admits that he received a denial letter from ARC. However, he asserts that he
subsequently received another letter from ARC that approved his FMLA request. Upon
returning from his suspension, petitioner submitted to his manager a letter purporting to be
ARC’s approval of FMLA time for June 12. Verizon management doubted the authenticity of the
approval letter and opened an investigation. An internal investigator reviewed the documents and
interviewed petitioner and others. For several reasons, the investigator determined that the
approval letter was a falsified document. ARC had no record of sending an approval letter, and
although petitioner’s manager had received an e-mailed copy of the denial letter, he had never
received any approval letter from ARC. Moreover, the contents of the purported approval letter
were not consistent with the form letter used by ARC for such matters. The approval letter
appeared to be a compilation of different types of letters sent by ARC, and it failed to include a
paragraph that had recently been added to similar form letters. Finally, petitioner produced an
opened envelope postmarked August 27 in which he claimed he had received the approval letter.
However, ARC’s records showed that the envelope containing the denial letter would have been
postmarked on that day.

       On November 20, 2009, Verizon terminated petitioner’s employment for submitting a
fraudulent FMLA approval letter and for making false statements during the investigation, both
of which violate Verizon’s written Code of Business Conduct.

       Thereafter, petitioner sued the Verizon companies and Verizon officials (respondents
herein) alleging, inter alia, unlawful disability termination and the failure to offer reasonable
accommodations in violation of the West Virginia Human Rights Act (“HRA”). W.Va. Code §§
5-11-1—20.1

         By order entered on April 1, 2013, the circuit court granted summary judgment in favor
of respondents. The circuit court relied upon petitioner’s deposition testimony, where his
admissions included that he did not consider himself to be disabled; he is able to perform all
major life activities; he has no reason to dispute that his supervisors thought his FMLA request
had been denied; the approval letter he submitted had different wording than other ARC form
letters; Verizon properly initiated the investigation; the investigation was conducted in a proper
and thorough manner; it was reasonable for Verizon to conclude that the approval letter was
falsified; and he had no reason to doubt that Verizon’s proffered reasons were the reasons for his
termination.

      The circuit court concluded that regardless of who fabricated the approval letter, the
submission of a falsified document to the employer was a legitimate, non-discriminatory basis

       1
         Petitioner made additional claims in his Complaint, some of which he later withdrew and
some of which were dismissed on summary judgment. However, only his HRA claims are at
issue in this appeal.
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for petitioner’s termination. Furthermore, the circuit court found that petitioner offered no
evidence that he was disabled or perceived to be disabled; no evidence to create an inference of
discrimination; no evidence to create an issue of fact as to whether Verizon’s reason for the
termination was pretextual; and no evidence that Verizon knew or should have known that he
needed a disability accommodation.

       Petitioner now appeals to this Court challenging the portions of the circuit court’s order
granting summary judgment for respondents on his HRA claims. “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). A claim of unlawful discriminatory practices in employment is analyzed
under the following framework:

              2. “In an action to redress unlawful discriminatory practices in
       employment . . . the burden is upon the complainant to prove by a preponderance
       of the evidence a prima facie case of discrimination[.] If the complainant is
       successful in creating this rebuttable presumption of discrimination, the burden
       then shifts to the respondent to offer some legitimate and nondiscriminatory
       reason for the rejection. Should the respondent succeed in rebutting the
       presumption of discrimination, then the complainant has the opportunity to prove
       by a preponderance of the evidence that the reasons offered by the respondent
       were merely a pretext for the unlawful discrimination.” Syllabus point 3, in part,
       Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia
       Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

               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[; and] (3) But for the plaintiff's protected status, the adverse decision
       would not have been made.” Syllabus point 3, Conaway v. Eastern Associated
       Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

Syl. Pts. 2 and 3, Young v. Bellofram Corp., 227 W.Va. 53, 705 S.E.2d 560 (2010).

       Our review of the record on appeal and of the parties’ arguments convinces us that
summary judgment was properly granted for respondents. In his Complaint, petitioner alleged
that respondents committed disability discrimination by failing to offer reasonable
accommodations and by terminating his employment. The term “disability” is defined in the
HRA as “[a] mental or physical impairment which substantially limits one or more of such
person's major life activities . . . [that] includes . . . working[.]” W.Va. Code § 5–11–3(m)(1).
However, petitioner admitted during his deposition that he has no impairment which
substantially limits his life activities.

        Even if petitioner’s injuries on June 12, 2009, constitute a temporary disability
subjecting him to HRA protections, and assuming arguendo that petitioner established a prima
facie case of discrimination, we nonetheless conclude that respondents rebutted any such

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presumption with evidence of a legitimate, non-discriminatory reason for his discharge. There is
overwhelming evidence that the approval letter was falsified. Submission of false information to
Verizon is against the company’s rules. Petitioner has failed to present evidence that
respondents’ proffered reasons for the termination were pretextual. To the contrary, during his
deposition, petitioner admitted that he had no reason to doubt that Verizon’s proffered reasons
were the reasons for his termination.

       Accordingly, we find no error and affirm the circuit court’s order granting respondents’
motion for summary judgment on petitioner’s HRA claims.2

                                                                                        Affirmed.

ISSUED: November 22, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       2
         During his deposition, petitioner expressed his opinion that he was treated unfairly by
Verizon. He noted his injuries and need for immediate medical attention after the car accident,
and his supervisor’s assurance not to worry about missing work that day. We understand
petitioner’s feelings in this regard. However, the purported unfairness of the employer’s decision
to deny petitioner’s request for leave time does not rebut respondent’s evidence that it discharged
petitioner because of the submission of false information, which is a legitimate, non-prextual
basis for the termination.
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