                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Andrew O.,

Plaintiff Below, Petitioner                                                        FILED

                                                                                   June 24, 2013
                                                                              RORY L. PERRY II, CLERK
vs) No. 12-1255 (Kanawha County 11-C-907)                                   SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Racing Corporation of West Virginia
d/b/a Mardi Gras Casino and Resort,
Defendant Below, Respondent

                              MEMORANDUM DECISION
       Petitioner Andrew O.,1 by counsel Cameron S. McKinney, appeals the order granting
summary judgment in favor of Respondent Racing Corporation of West Virginia d/b/a Mardi
Gras Casino and Resort, in petitioner’s action for disability discrimination. Respondent, by
counsel Ricklin Brown and Mary Pat Statler, filed a response to which petitioner replied.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On April 29, 2010, respondent’s human resources manager hired then twenty-two year
old petitioner, a blackjack dealer, on a part-time basis. When he was hired, petitioner weighed
about 540 pounds. Petitioner claims that he has struggled with his weight since childhood; he
was diagnosed with thyroid disease at age twelve; and he has arthritis in his legs and back.2
Petitioner contends that his morbid obesity precludes him from finding clothing that fits him
properly and restricts his endurance in standing and walking.

        Respondent requires all new employees to attend an orientation session that covers topics
including employee lunches and breaks, personal appearance and uniforms, and employee break
and smoke areas. Petitioner received respondent’s handbook at orientation. The handbook lists
conduct that is subject to disciplinary action, such as failing to comply with respondent’s dress
code and/or abusing lunch and break periods. At the end of his orientation session, petitioner
signed an acknowledgement that he had received the handbook and had read and understood its
policies.

1
  The Court will address petitioner by his first name and last initial because his medical history is
discussed herein.
2
  Respondent claims that petitioner failed to provide, during his employment with respondent or
the pendency of this lawsuit, any medical documentation verifying that he has a thyroid
condition or arthritis.
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         Petitioner was required to wear a company-supplied uniform at work that included a
long-sleeved tuxedo shirt, a bow tie, an apron, and black pants. The handbook requires dealers to
keep their tuxedo shirts tucked into their pants and their sleeves rolled down and buttoned at the
wrists. Respondent did not have a tuxedo shirt on hand that would fit petitioner, so it attempted
to order tuxedo shirts from various websites, including those suggested by petitioner. However,
those merchants either failed to carry tuxedo shirts or did not have a tuxedo shirt large enough to
fit petitioner. Respondent considered having a custom shirt made for petitioner, but decided the
cost was prohibitive. Respondent thereafter located a size 7X tuxedo shirt online that
respondent’s seamstress altered for petitioner. Petitioner claims that the altered shirt did not fit
him in such a way that he could tuck it into his pants. Petitioner also claims that his direct
supervisors allowed him to leave his shirt untucked until the problem could be resolved.
Respondent claims that petitioner failed to approach the appropriate management personnel, as
required by the handbook, regarding an accommodation.

        Soon after he began working for respondent, petitioner told his immediate supervisors
that he was unable to walk to and from the employee break area during his twenty-five minute
break without shortness of breath and becoming fatigued. Petitioner claims that, in response, his
immediate supervisors allowed him to take breaks in an alternate area. Petitioner also had
problems standing for long periods. Petitioner supplied respondent with a note from his doctor
that said, in toto, “[petitioner] needs to sit down at work due to his weight condition.” In
response, respondent assigned petitioner a wheelchair-accessible blackjack table so he could sit
while he worked.

        On June 5, 2010, about a month after he was hired, petitioner’s direct supervisor gave
petitioner a reprimand on an “Employee Counseling Form.” The reprimand was issued by the
assistant director of gaming who apparently was the supervisor of petitioner’s direct supervisors.
The reprimand stated that a dealer must keep his shirt tucked into his pants and take breaks in
designated areas. Respondent claims that petitioner was cited because his tuxedo shirt was not
tucked into his pants, his apron was concealed or not on his person, and his shirt sleeves were
rolled up. Petitioner claims that he contacted several supervisors and the human resources
manager regarding his need for accommodations. In regard to his break location, petitioner
claims that his direct supervisors assured him that he could continue to take his breaks in the
previously-approved alternate areas. Petitioner also claims that the human resource manager told
him she “would take care of it.”

        On June 12, 2010, the assistant director of gaming gave petitioner a second reprimand, an
“Employee Warning Report,” for taking breaks outside of the designated areas. Respondent
claims that petitioner took breaks in public areas of the casino reserved solely for patron use.
Petitioner was entitled to write objections to the warning on the “Employee Warning Form.”
Petitioner wrote that he was unable to walk to and from the designated break area in the allotted
time without “wearing out.” Petitioner claims that he asked the assistant director of gaming that
same day to designate an alternate area for his break. The assistant director of gaming told
petitioner that his doctor’s note regarding petitioner’s inability to stand while working did not
support petitioner’s request for an alternate break area. Petitioner replied that he would secure a
second doctor’s statement the following week at a previously scheduled doctor’s appointment.

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Thereafter, the assistant director of gaming designated a temporary alternate break area for
petitioner. Respondent claims that when petitioner approached the assistant director of gaming, it
was the first time petitioner spoke with the appropriate supervisor regarding the need for
accommodations.

        When petitioner next came to work on June 16, 2010, his tuxedo shirt was not tucked into
his pants and his sleeves were not buttoned at his wrists. About an hour into his shift,
respondent’s human resource manager suspended petitioner for “performance-based issues.”
Following an investigation, the human resource manager terminated petitioner later that month
for dress code and break area violations. In all, petitioner worked for respondent for less than two
months.

        Petitioner filed an action for disability discrimination in circuit court pursuant to the West
Virginia Human Rights Act (“WVHRA”), West Virginia Code §§ 5-11-1 to -20, against
respondent on June 2, 2011. Respondent deposed petitioner on November 29, 2011. Respondent
filed a motion for summary judgment on February 8, 2012. Following a hearing, the circuit court
granted respondent’s summary judgment motion by order entered on September 10, 2012. The
circuit court found that:

   (1) Petitioner was not disabled, in part, because obesity is not a per se impairment

       under the WVHRA, and in part because petitioner acknowledged that he was able

       to do everything that an average person was capable of doing.


   (2) Respondent	 had legitimate and non-discriminatory reasons for terminating
       petitioner’s employment including ensuring uniformity of employees’ apparel;
       keeping employees on break away from respondent’s patrons; and proscribing
       incompetence and insubordination in its employees.

Petitioner now appeals the circuit court’s order.

        We review a summary judgment order under a de novo standard of review. Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should be granted
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. 2, id.; Syl. Pt. 3, Aetna Cas. & Sur.
Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

       Discrimination claims under the WVHRA are governed by the well-known, three-step,
evidentiary framework outlined in McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)(the “McDonald
Douglas-Burdine” framework):

       “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

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       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).

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

        On appeal petitioner first argues that the circuit court erred in finding that he was not
disabled under the WVHRA. Petitioner argues that he is disabled under West Virginia Code § 5­
11-3(m)(1) because he is physically impaired and his impairments substantially limit one or
more of his major life activities. Specifically, petitioner argues that his morbid obesity, thyroid
condition, and arthritis substantially limit his endurance while standing and walking and his
ability to care for himself due to his difficulty in finding clothing to dress himself. Petitioner
contends that the circuit court erroneously found that he “acknowledges that he is able to do
everything that an average person is capable of doing.” Petitioner counters that he actually said,
“I can do almost everything. It’s just that I have to go at my own pace.”

        Petitioner next argues that he meets the definition of disability under West Virginia Code
§ 5-11-3(m)(3) which defines “disability” as “[b]eing regarded as having such an impairment.”
Petitioner argues that respondent’s accommodations or attempted accommodations on his behalf
were indisputable proof that respondent regarded him as disabled. Respondent counters that it
did not “regard” petitioner as disabled, but instead regarded him as an obese employee with
limitations.

        In order to be protected by the WVHRA, a person must first prove he or she is a person
with a “disability.” Smith v. W.Va. Human Rights Comm'n, 216 W.Va. 2, 6, 602 S.E.2d 445, 449
(2004). The circuit court correctly found that the rules promulgated by the Human Rights
Commission to assist in interpreting the WVHRA do not include “obesity” in the list of physical
impairments that typically denote a particular disability. See W.Va. Code R. §§ 77-1-2, and -2.2
to -2.4 (1994). Therefore, obesity is not a per se disability under the WVHRA. As for petitioner’s
claims that he has a thyroid condition and arthritis, he does not contest respondent’s claim that he
failed to provide any medical documentation regarding those conditions. Moreover, petitioner
conceded at his deposition that he takes no medication for thyroid disease and that his doctor
does not attribute his morbid obesity to any underlying health issue.

        To survive a motion for summary judgment, the opposing party “must satisfy the burden
of proof by offering more than a mere ‘scintilla of evidence’ and must produce evidence
sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams v. Precision Coil,
Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986)). Therefore, to withstand respondent’s motion for summary judgment,
petitioner was required to provide some evidence that he was disabled or that respondent
regarded him to be disabled. This burden is particularly significant here, given that respondent’s
human resource manager both hired and fired petitioner within a two-month time period. In
Johnson v. Killmer, 219 W.Va. 320, 325, 633 S.E.2d 265, 270 (2006), we said, “in cases where

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the hirer and the firer are the same individual and the termination of employment occurs within a
relatively short time span following the hiring, a strong inference exists that discrimination was
not a determining factor for the adverse action taken by the employer.” Therefore, respondent is
entitled to a strong inference that discrimination was not a determining factor in petitioner’s
termination.

        In regard to petitioner’s claim that the circuit court erred in failing to find that he was
disabled, we find that based on the facts above, petitioner failed to make a sufficient showing
that he is disabled under the WVHRA to survive respondent’s motion for summary judgment.
Hence, the circuit court did not err in granting summary judgment to respondent on petitioner’s
claim that he was disabled.

        Petitioner next argues that he was disabled under the WVHRA because his obesity,
thyroid condition, and arthritis substantially limited him in a major life activity. However, as the
circuit noted in its order on appeal, petitioner testified at his deposition that he was able to “do
almost everything” the average person does, albeit at his own pace. Further, petitioner’s doctor’s
note—regarding petitioners need to sit while he worked—did not indicate that petitioner was
substantially limited in a major life activity. Given that respondent is entitled to a strong
inference that discrimination was not a determining factor in petitioner’s termination, we find
that the circuit court did not err in finding that petitioner was not disabled. The record taken as a
whole could not have led a rational trier of fact to find for petitioner because he failed to make a
sufficient showing that he was substantially limited in a major life activity. Syl. Pt. 4, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“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.”).

        As for petitioner’s argument that respondent regarded him as disabled, the mere fact that
respondent accommodated or attempted to accommodate petitioner’s needs is not a sufficient
showing that respondent considered petitioner to be disabled. Further, the assistant director of
gaming’s hesitance to provide an alternate break location for petitioner absent a doctor’s note
supports the finding that respondent did not regard petitioner to be disabled. It is sound business
policy for an employer to assist an employee in performing his or her job functions. However,
we do not find that assisting an employee with a particular need, such as allowing the employee
to sit while working, automatically means that the employer considers that employee to be
disabled. Therefore, we find that the circuit court did not err in failing to find petitioner to be
disabled because petitioner failed to present sufficient evidence that respondent regarded him as
disabled.

        Even if petitioner had established a prima facie case that he was disabled or respondent
regarded him as disabled, pursuant to the McDonnell Douglas-Burdine framework noted above,
respondent offered reasons in its business interest for petitioner’s termination. See Syl. Pt. 2,
Young. Here, the circuit court found respondent’s reasons to terminate petitioner’s employment
to be legitimate, nondiscriminatory, and wholly unrelated to petitioner’s obesity or other physical
conditions.



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        Petitioner next argues that the circuit court erred in refusing to interpret the WVHRA in
light of federal cases applying the Americans with Disabilities Act (“ADA”). Petitioner
highlights one such case, E.E.O.C. v. Resources for Human Development, Inc., 827 F.Supp.2d
688 (E.D.La. 2011), which notes that under the ADA’s implementing regulations, drafted by the
Equal Employment Opportunity Commission (“E.E.O.C.”), obesity may be an “impairment” if it
is “severe” or results from a physiological disorder:

       [B]eing overweight, in and of itself, is not generally an impairment . . . On the
       other hand, severe obesity, which has been defined as body weight more than
       100% over the norm, is clearly an impairment. In addition, a person with obesity
       may have an underlying or resultant physiological disorder, such as hypertension
       or a thyroid disorder. A physiological disorder is an impairment.

Id. at 694 (citing E.E.O.C. Compliance Guidelines § 902.2(c)(5)) (footnote omitted). Petitioner
argues that his obesity is severe and could have resulted from his thyroid condition and arthritis;
therefore, if the circuit court had applied the ADA, it would have found him to be disabled.

       In the order on appeal, the circuit court rejected petitioner’s argument that it should rely
on federal cases interpreting the ADA on the ground that the West Virginia Legislature “has not
amended the WVHRA to mirror the amendments to the Americans with Disabilities Act
(“ADA”) (now called the ADA Amendments Act of 2008 (“ADAAA”)).” In Stone v. St.
Joseph’s Hospital of Parkersburg, 208 W.Va. 91, 106, 538 S.E.2d 389, 404 (2000) (footnote
omitted), we said that while federal disability jurisprudence may prove helpful in interpreting the
WVHRA, the WVHRA “as created by our Legislature and as applied by our courts and
administrative agencies, represents an independent approach to the law of disability
discrimination that is not mechanically tied to federal disability discrimination jurisprudence.”
Therefore, the circuit court did not err in choosing not to apply federal cases interpreting the
ADA or ADAAA to petitioner’s WVHRA-based lawsuit.

        Petitioner last argues that the circuit court erred in finding that respondent provided
petitioner “reasonable accommodations” with regard to his uniform and break area. Pursuant to
West Virginia Code § 5-11-9, an employer’s duty to accommodate an employee is triggered by
an employee’s recognized disability. See Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 479
S.E.2d 561 (1996). As we have affirmed the circuit court’s conclusion that petitioner failed to
make a sufficient showing that he was disabled or that respondent regarded him as disabled, we
decline to address this issue.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.




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ISSUED: June 24, 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




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