          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                 January 2017 Term
                                                                FILED
                                    __________
                                                             March 9, 2017
                                                                released at 3:00 p.m.
                                    No. 15-1197               RORY L. PERRY, II CLERK
                                                            SUPREME COURT OF APPEALS
                                    __________                   OF WEST VIRGINIA


               WEST VIRGINIA DIVISION OF MOTOR VEHICLES,

                         Petitioner, Respondent below


                                         v.

        RENEE L. RICHARDSON-POWERS, Respondent, Petitioner below,
            and WEST VIRGINIA HUMAN RIGHTS COMMISSION,
                               Respondent
         ______________________________________________________

              Appeal from the West Virginia Human Rights Commission

                               Docket No. EDS-94-12


                               REVERSED

         _______________________________________________________

                             Submitted: January 25, 2017

                                Filed: March 9, 2017



Patrick Morrisey, Esq.                 Garry G. Geffert, Esq.
Attorney General                       Martinsburg, West Virginia
Mary M. Downey, Esq.                   Counsel for Richardson-Powers
Assistant Attorney General
Charleston, West Virginia              Ann L. Haight, Esq.
Counsel for Petitioner                 Deputy Attorney General
                                       Jerry R. Fowler II, Esq.
                                       Assistant Attorney General
                                       Charleston, West Virginia
                                       Counsel for Human Rights Commission

CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
                                        SYLLABUS




              1. “West Virginia Human Rights Commission’s findings of fact should be

sustained by reviewing courts if they are supported by substantial evidence or are

unchallenged by the parties.” Syl. Pt. 1, W.Va. Human Rights Comm’n v. United Transp.

Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).



              2. “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 [have]

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).
LOUGHRY, Chief Justice:



                The West Virginia Division of Motor Vehicles (“DMV”), appeals from an

adverse finding of discrimination against it by the West Virginia Human Rights Commission

(“Commission”). The DMV challenges multiple findings of the Commission including its

ruling that the respondent Renee Richardson-Powers (“Ms. Powers”) proved a prima facie

case of discrimination;1 that the DMV failed to provide the accommodations requested by

Ms. Powers; that Ms. Powers mitigated her damages; and that the administrative law judge’s

(“ALJ’s”) findings of fact were supported by the evidence.2 Upon our careful and thorough

review of the record in this case against these assignments of error, we find that the

Commission committed error and, accordingly, reverse.



                          I. Factual and Procedural Background

                Ms. Powers purportedly suffered a traumatic brain injury in a fall from a ledge

near the Lincoln Memorial in Washington, D.C., when she was eight years old.3 As a result

       1
           See W.Va. Code § 5-11-9 (2013).
       2
        The DMV also challenges the Commission’s findings that it did not engage in the
interactive process, while Ms. Powers did, and that it engaged in spoliation of evidence.
       3
        There are no medical records to support this diagnosis. We note additionally that on
December 17, 2009, Ms. Powers told Harold Slaughter, a psychologist she was referred to
by the West Virginia Division of Rehabilitation Services (“DOR”), that she sustained this
injury as the result of performing gymnastics when she was nine years old. Ms. Powers told
Ms. Frick, her DMV supervisor, that the brain injury resulted from “a severe car accident.”

                                               1

of this injury, Ms. Powers testified she has some degree of hearing loss and struggles to find

the correct words to express herself. Dr. James Petrick, Ph.D., a clinical neuropsychologist

who examined Ms. Powers,4 testified she has “cognitive deficits” due to the neurological

trauma. One of those specific deficits is a reduction of “her capacity to learn efficiently.”

He further testified that her perseverative tendencies make problem solving difficult, noting

that people with such tendencies tend to “get stuck.” In explanation, he opined: “[T]hey

decide there’s one way to do something, and, and they can’t be flexible with their thinking.”

Based on the information Ms. Powers provided to Dr. Petrick, he agreed with her self-

assessment that structure, repetition, and consistency5 were necessary for her to learn new

tasks.



                   In 2010, Ms. Powers applied for a customer service representative (“CSR”)

position with the DMV.6 Upon being hired to work at the Kearneysville DMV office, she




Dismissing “[t]hese supposed inconsistencies . . . [as] simply not relevant,” the ALJ
concluded that “[t]he entomology of those mental impairments has no bearing on the
elements of the causes of action” at issue.
         4
      Dr. Petrick examined Ms. Powers on August 25, 2010–five months after she began
working at the DMV.
         5
             See infra note 28.
         6
        After being laid off from her job in May 2009, Ms. Powers sought assistance from
Workforce West Virginia and was referred to the DOR to help her find employment; she
located the DMV position without the assistance of the DOR.

                                                2

began her probationary employment on March 22, 2010.7 Ms. Powers did not disclose the

existence of her traumatic brain injury when she was initially interviewed by the DMV or

later when she began her employment as a CSR.8 At the start of her CSR training, all Ms.

Powers told Christine Frick, the office manager, was that she learned by repetition and that

“she liked to take lots of notes.” Ms. Powers began her CSR training with Angie

Kuykendall. According to Ms. Kuykendall, she provided Ms. Powers with a notebook that

contained documents pertinent to issuing driver’s licenses and to license renewals and

further enabled her to take additional notes regarding the various DMV procedures she was

undertaking to learn. At the end of one week, Ms. Kuykendall requested that she be relieved

from training Ms. Powers due to difficulties she was experiencing that included Ms. Powers’

refusal to take notes, her uncooperative attitude with regard to the training, and her failure

to remain at the DMV window with her trainer.9




       7
           The probationary period of employment was six months.
       8
        Several weeks into her employment, Ms. Powers told the office manager, Christine
Frick, she had a brain injury and that was why she was having trouble retaining information.
When asked what was necessary to help her learn, Ms. Powers indicated taking notes and
repetition. Ms. Powers made it clear to Ms. Frick that she did not want her co-workers to
know of the brain injury. Due to privacy issues, Ms. Frick testified she could not inform
those co-workers about Ms. Powers’ brain-related injury.
       9
       Throughout the training log maintained on Ms. Powers, the trainers commented on
Ms. Powers wandering away from the window at which she was assigned to be trained; Ms.
Powers denies that she ever left her assigned window. A notation in the log dated April 5,
2010, states: “Renee does not want to run the window or stay at her station, continues to
wander until management tells her to get back to her trainer.”

                                              3

                 Danetta Calhoun, the second DMV employee to train Ms. Powers, raised

concerns similar to those expressed by Ms. Kuykendall. Addressing Ms. Powers’ challenges

to Ms. Calhoun’s training, Ms. Frick noted in the training log:10 “she [Ms. Powers] is not

questioning because she does not understand, she is questioning because she does not like

the way Danetta is processing the transaction.” Ms. Calhoun further opined that Ms. Powers

“has a negative attitude towards training and seems like she knows it all, already.” Also

included in the log for this week is this observation: “Renee still refuses to take notes as she

has been told by management and her trainers. Renee is coming to management to complain

about her co-workers.”



                 When Ms. Frick spoke with Ms. Powers with regard to the issues raised by the

trainers, Ms. Powers revealed that a brain injury affected her ability to retain information.

In response, Ms. Frick “reiterated the fact about taking notes. Notes will benefit her

processing transactions. I also told her that I would provide her with resources to use when

she is finished training and working on her own. She then went on again to complain about

her trainer’s way of doing things.”11




       10
         While Ms. Frick compiled the training log, reports submitted by the individual
trainers of Ms. Powers were used to complete the log.
       11
            This entry is from the training log entry dated March 28, 2010, to April 1, 2010.

                                                4

              After seven days of working with Ms. Calhoun, Ms. Powers was moved to a

third CSR for training purposes. During the week that Terry Graves was her trainer, Ms.

Powers got upset with Ms. Graves for correcting her in front of a customer and complained

to Ms. Frick. Ms. Frick explained that it was the duty of Ms. Graves, as her trainer, to make

sure the customer was not given inexact information or sent away unnecessarily. Despite

recognizing that “she is probably explaining things incorrectly,” Ms. Powers still did not feel

she should be remonstrated in front of a customer. Ms. Graves observed that Ms. Powers

“is focusing to[o] much on minor details instead of the primary details of the job.” The log

entry for April 7, 2010, reflects that “Renee [Ms. Powers] comes to management to say what

Terry [Graves] has told her and then questions if Terry is correct. Renee does not believe

what she is being told by her trainers. Terry states that Renee is not taking the amount of

notes that she should and refuses to do so when Terry suggests it to her.”



              Although Ms. Powers was assigned her own window beginning on April 11,

2010, she was continuing to struggle with handling basic license tag renewals and driver’s

licenses.12 According to the log, Ms. Powers “continues to leave her window for almost

every transaction to come to management for help.” The log entry for the week of April 25

to 30, 2010, reflects that Ms. Powers “is still questioning at each transaction and asking how



       12
         These two DMV transactions are the easiest transactions to process, according to
the testimony of Ms. Frick.

                                              5

to process and what is needed. She is not referring to her resources or notes as we have told

her. States it is easier to come and ask.” The following week’s log indicates that Ms.

Powers “will not take the help given by CSR’s as instructed and management can not stand

with her to answer her questions at each transaction.”13



                 Ms. Frick noted in the log for May 9 to 14, 2010, that she tried to switch Ms.

Powers over to titles “to have her learn some more job duties and she is visibly upset about

this.” The entry made by Ms. Frick in the log for the following week states: “I have tried

everything possible to help Renee [Powers] with the problems she is having with learning

her job duties. I have provided numerous resources and cheat sheets and sat with her and

talked with her in detail at great lengths. I have asked Renee for input and have complied

with her requests.” Ms. Frick observed in the log entry for May 16 to 21, 2010, “that Renee

is not willing to work with her co-workers.”14

       13
            The log reflects for the week of May 2 to 7, 2010:

                 [A]s long as someone was working with her she was fine and
                 not questioning at all. She knew what needed to be done and
                 did it. It wasn’t until that management member walked away
                 did she start asking questions again. Renee [Powers] admitted
                 repeatedly that she is retaining the information but doesn’t like
                 working on her own because she is afraid she will make a
                 mistake.
       14
         Additional information related to dealing with her co-workers is set forth in the log
entry for May 24 to 28, 2010:

                 She is not meeting the goals set and again is refusing to use any

                                                6

              Ms. Powers met with Ms. Frick and Karrie Whittington, the office supervisor,

on May 27, 2010, for a sixty-day performance review. Expectations and goals were

discussed and Ms. Powers said she “would work on doing better.” When Ms. Powers

claimed to have “never been given any resources to help her,” Ms. Frick disputed this

contention and “then she admitted that she has them but just doesn’t use them.”15 Citing her

brain injury, Ms. Powers requested additional training on May 28, 2010. She told Ms. Frick

“that she did not like her training . . . and that none of the CSR’s do anything correctly.”



              Ms. Frick got approval from the Regional Coordinator, Carol Huggins, for

additional training for Ms. Powers. After training Ms. Powers for more than a week, Becky

Heddon observed that she “can do her job as long as someone sits with her at all times.”

When Ms. Powers asked for even more training on June 11, 2010, she was told by Ms. Frick

that “management feels that she is able to work independently . . . at this point.” To which,

Ms. Powers stated “that she does know her job but just doesn’t want to make a mistake.”


              of the information that she has been given by other CSR’s to
              make her job easier and more understandable. CSR’s still
              complaining about Renee [Powers] giving customers wrong
              information and being rude to the employees when they try to
              help her. CSR’s do not understand why Renee will not allow
              them to assist her. They all say that she just blows them off and
              will not listen. Does things her own way; which is incorrect but
              then will blame the other CSR’s when . . . ask[ed] . . . why she
              processed something wrong or gave wrong information.
       15
       In explanation, Ms. Powers stated “it is just more convenient to come ask questions
to management only instead of taking the time to refer to her resources we provided.”

                                              7

              The log entries for June 14 through July 9, 2010, relate that Ms. Powers was

continuing to question “all she is told,”16 was “not using notes or resources provided,” and

was refusing to rely on co-workers for assistance.17 Additional notations for this same

period indicate that Ms. Powers “is still not giving correct information to customers” and

that she “is not showing the performance level she should for this far into employment.”18



              Ms. Frick and Ms. Whittington met with Ms. Powers on July 12, 2010, to

discuss her ninety-day evaluation/review. As documented in the training log, Ms. Powers

“did not agree with the discussion and said that it was not her fault but the trainers fault from

day 1. She went on to blame co-workers for her mistakes and giving wrong information and

lack of performance.” The next day, Ms. Powers requested that Ms. Frick contact her brain




       16
         Ms. Frick expanded: “She is not questioning in a manner of not understanding, it
is in a manner of disbelief.”
       17
        When directed by management to go to a co-worker, Ms. Powers relatedly “gives
them an attitude about it.”
       18
         As the record evidences, Ms. Powers intermittently contacted Ms.Lockard, her DOR
counselor, to inquire about training (which was unavailable due to her current employment
status) and to discuss her difficulty in learning her job duties. Ms. Lockard communicated
with Ms. Powers on June 7, 2010, about meeting to complete an individual plan for
employment aimed at work accommodations and job retention, but that meeting never took
place.

                                               8

trauma counselor, Ms. Teresa Cunningham. Ms. Frick told Ms. Powers that she could not

do that.19



              Ms. Powers contacted Penny Hall, the state director of the Americans with

Disability Act (“ADA”). Ms. Hall contacted Ms. Frick by telephone on July 22, 2010, to

inquire why she would not meet with Ms. Cunningham. Ms. Frick informed Ms. Hall that

she “ha[d] not received anything from Renee [Powers] in writing from her doctor to prove

the disability and that Renee has not told her the complete story of her poor evaluations.”

Ms. Frick also communicated to Ms. Hall that Ms. Powers “continues to change the story

around whether she has been diagnosed or not diagnosed” with a disability.20



              Five days later, Ms. Powers was informed by letter from the Director, Human

Resources Division, West Virginia Department of Transportation (“DOT”) that she could

apply for a “reasonable accommodation under the ADA.” Ms. Powers filled out a series of




       19
        According to both her testimony and her log entry corresponding to this request, Ms.
Frick explained that without specific disability documentation, they were not authorized to
make this type of contact. At this point, Ms. Powers had not provided the DMV with any
documentation evidencing the existence of a brain trauma-related disability.
       20
         Ms. Lockard, the DOR Counselor assigned to Ms. Powers, observed in her case
notes dated July 13, 2010, that Ms. Powers was “considering whether and when she will
share this report [Dr. Slaughter’s psychological report dated December 17, 2009, diagnosing
her with a traumatic brain injury] with her supervisor.”

                                             9

forms requesting an accommodation on July 30, 2010.21 The specific accommodation

requested by Ms. Powers was to learn in a step-by-step procedure format and through

repetition. On September 15, 2010, the DOT/DMV accommodation committee denied her

request, stating:

                 The information submitted demonstrated that the local Division
                 of Motor Vehicles office previously made multiple attempts to
                 assist you in learning the duties of a Customer Service
                 Representative in ways that are consistent with your request as
                 noted above [step by step procedure format and through
                 repetition]. In addition, the methods employed by DMV staff
                 to train you in your job are consistent with the recommendations
                 of Ms. Cunningham. Based upon these unsuccessful attempts,
                 it is apparent that, assuming that you are disabled, no reasonable
                 accommodation would enable you to perform the essential
                 functions of your job.



                 On September 16, 2010, Ms. Powers was notified that effective September 30,

2010, her employment with the DMV was being terminated.22 On September 28, 2010, Ms.

Powers filed a grievance with regard to her termination. After eight days of hearing

evidence,23 Robert B. Wilson, the ALJ, issued his final decision on September 11, 2014,

finding in favor of Ms. Powers and awarding her front and back pay, attorney’s fees, and



       21
         When she sought this accommodation, she had yet to be seen by Dr. Petrick. The
first time that consistency in terms of both the trainers and the steps employed to achieve a
particular task is mentioned is in Dr. Petrick’s report, dated August 25, 2010.
       22
            Her last day of work was September 20, 2010.
       23
            The hearings were held in December 2013 and February 2014.

                                                10

directing that she be reinstated.24 By order entered on November 9, 2015, the Human Rights

Commission adopted the decision of Judge Wilson.25 It is from this order that the DMV

now appeals.



                                  II. Standard of Review

               As we detailed in Smith v. West Virginia Human Rights Commission, 216

W.Va. 2, 602 S.E.2d 445 (2004), the Commission reviews the decision of an ALJ pursuant

to the statutory procedures set forth in West Virginia Code § 5-11-8(d)(3).26 216 W.Va. at

      24
        Through her cross-appeal, Ms. Powers objected to the award of reinstatement,
arguing that the reinstatement was not possible given the animosity between the parties.
      25
         The Commission awarded back pay damages in the amount of $12,906.00 for the
period of unemployment following her termination on September 30, 2010, to December 31,
2010, plus interest. To reflect the difference between Ms. Powers’ current part-time
employment and full-time employment, an additional award of back pay and benefits was
made in the amounts of $11,259.99 for 2011; $6,912.00 for 2012, $13,248.99 for 2013 and
$15,443.00 for 2014 plus interest. The Commission awarded Ms. Powers $5,000.00 for
humiliation, embarrassment, emotional distress and loss of dignity as well as $189,106.86
in attorney’s fees.
      26
        Those standards limit the Commission’s review to determining whether the ALJ’s
decision is:

               (A) In conformity with the constitution and the laws of the state
               and the United States;
               (B) Within the commission’s statutory jurisdiction or authority;
               (C) Made in accordance with procedures required by law or
               established by appropriate rules of the commission:
               (D) Supported by substantial evidence on the whole record; or
               (E) Not arbitrary, capricious or characterized by abuse of
               discretion or clearly unwarranted exercise of discretion.


                                              11

6, 602 S.E.2d at 449. When this Court reviews the Commission’s ruling, we are governed

by the reviewing standards set forth in the Administrative Procedures Act. See W.Va. Code

§ 29A-5-4(g) (2015); accord Syl. Pt. 1, Cobb v. W.Va. Human Rights Comm’n, 217 W.Va.

761, 619 S.E.2d 274 (2005). To reverse, vacate, or modify the Commission’s order requires

a determination that

             the substantial rights of the petitioner or petitioners have been
             prejudiced because the administrative findings, inferences,
             conclusions, decisions or order are:

             (1) In violation of constitutional or statutory provisions; or
             (2) In excess of the statutory authority or jurisdiction of the agency; or
             (3) Made upon unlawful procedures; or
             (4) Affected by other error of law; or
             (5) Clearly wrong in view of the reliable, probative and
             substantial evidence on the whole record; or
             (6) Arbitrary or capricious or characterized by abuse of
             discretion or clearly unwarranted exercise of discretion.

W.Va. Code § 29A-5-4(g).



             As we first pronounced in syllabus point one of West Virginia Human Rights

Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d

653 (1981), “West Virginia Human Rights Commission’s findings of fact should be

sustained by reviewing courts if they are supported by substantial evidence or are




W.Va. Code § 5-11-8(d)(3).

                                            12

unchallenged by the parties.”27 See also Syl. Pt. 1, in part, Muscatell v. Cline, 196 W.Va.

588, 474 S.E.2d 518 (1996) (stating that this Court “reviews questions of law presented de

novo, findings of fact by the administrative officer are accorded deference unless the

reviewing court believes the findings to be clearly wrong”). Credibility determinations made

by an ALJ “are binding unless patently without basis in the record.” Martin v. Randolph Bd.

of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995). In contrast to the deference

extended to the factual determinations of an ALJ provided such determinations are

“supported by substantial evidence,” the ALJ’s interpretation of the law or application of the

facts to law are not treated deferentially. See id. at 304, 465 S.E.2d at 406. With these

standards in mind, we proceed to determine whether the rights of the DMV were prejudiced

by the ruling of the Commission.



                                      III. Discussion

              The DMV challenges the legal conclusion reached by the ALJ, and affirmed

by the Commission, that Ms. Powers demonstrated by a preponderance of the evidence that

the DMV breached its duty to provide her with a reasonable accommodation. The elements




       27
         When West Virginia Code § 5-11-11 was amended in 1987 to provide for a direct
appeal from the Commission to this body, the Commission’s findings of fact continued to
be reviewed pursuant to the “substantial evidence” test. KVRTA v. W.Va. Human Rights
Comm’n, 181 W.Va. 675, 677 n.1, 383 S.E.2d 857, 859 n.1 (1989).

                                             13

necessary to prove such a claim were set forth in syllabus point two of Skaggs v. Elk Run

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

                     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 [have] 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.

As Justice Cleckley explained in Skaggs, an employer has two means of defending against

such a claim: “by disputing any of the above elements or by proving that making such

accommodation would impose an undue hardship on the employer.” 198 W.Va. at 66, 479

S.E.2d at 576.



              In the instant case, the DMV specifically challenges the first element, which

required Ms. Powers to demonstrate she was “a qualified person with a disability.” Under

both our case law and our regulations, a “qualified person with a disability” is an individual

“who is able and competent, with reasonable accommodations, to perform the essential

functions of the job.” See Syl. Pt. 1, in part, Coffman v. W.Va. Bd. of Regents, 182 W.Va.

73, 386 S.E.2d 1 (1988), overruled on other grounds by Skaggs, 198 W.Va. 51, 479 S.E.2d

561; W. Va. Code R. § 77-4-2. By statute, only an individual who is “able and competent


                                             14

to perform the services required” of a particular employment position is entitled to seek

relief on the grounds of unlawful discrimination under the West Virginia Human Rights Act.

See W.Va. Code § 5-11-9(1) (2013). And, as we clarified in Ranger Fuel Corp. v. West

Virginia Human Rights Commission, 180 W.Va. 260, 376 S.E.2d 154 (1988), “[t]he ‘able

and competent’ requirement means that an employer has the right not to hire or to fire

employees who are unable to perform a job because either they are generally unqualified or

they have a handicap that impedes job performance, subject to the ‘reasonable

accommodation’ requirement.” Id. at 265, 376 S.E.2d at 159.



               The DMV maintains that Ms. Powers was not capable of performing the

essential functions of her job, even with the specific accommodation she requested: step­

by-step training, note taking and repetition.28 Although a typical CSR trainee would

complete his or her training in two to four weeks, Ms. Powers was still struggling after

months to operate a DMV window unassisted.29 Both the training logs and the testimony


       28
         Not until Ms. Powers pursued a grievance did she identify consistency as a
component of the step-by-step training she required. Because the individual CSR employers
who trained Ms. Powers might approach the same task in a slightly different order (same
steps, just a different order), she complains that this rendered her training ineffectual.
       29
         When deposed in this case, Ms. Powers said that at the time of her termination–six
months after being hired–she had still not completed the training she required to perform the
job. As she explained: “I still needed so much more in different things that – of training,
different licenses, different areas of that job.” Besides her need for additional training on
existing procedures, she stated that “[i]f a new process comes in, I would need training.
Unless I do the process over and over, I would constantly need assistance . . . .”

                                             15

of the CSR workers and DMV supervisors indicate that Ms. Powers was not competently

operating a DMV window independent of supervisory assistance despite months of hands-on

and over-the-shoulder instruction. Of additional concern to the DMV was Ms. Powers’

apparent failure to fully appreciate the need to give customers accurate information in the

first instance and to treat them respectfully.



              While the ALJ has numerous findings of fact with regard to past employment

positions that Ms. Powers successfully held,30 the record in this case does not adequately

address whether those prior positions involved comparable job duties and responsibilities.

In his “Statement of the Case,” the ALJ relates that:

                     The Complainant has provided evidence that when
              coworkers are aware of her condition, which causes her to have
              to repeatedly ask questions, and present the tasks necessary to
              perform a job function in a consistent step-by-step format, she
              can be successful. This is demonstrated by a work history
              involving similar customer service positions, which
              Complainant has held for extended periods of time with
              performance that was recognized and rewarded by her previous
              employers.

In the Discussion section of the Final Decision, the ALJ concludes:

                    Ms. Richardson-Powers has demonstrated that she is
              capable of performing similar customer service jobs in the past,
              when she has explained her learning problems to her co­


       30
         Her prior instances of employment included a rental car agent; a cashier; a bank
teller; and an order fulfillment coordinator. Over the objection of the DMV, the ALJ
allowed Ms. Powers’ sister to testify to the receipt of work-related commendations.

                                                 16

              workers. . . . The evidence established that she has a record of
              helpful courteous interaction with those prior employers’
              customers. . . .The preponderance of the evidence suggests that
              with accommodation, Ms. Powers is able to perform the duties
              of customer service representative with Respondent, DMV.



              For the ALJ to presume that the job duties at the prior positions held by Ms.

Powers were sufficiently similar in nature to those of a DMV CSR with no testimony to that

effect was improper. The singular fact of dealing with the public across a counter does not

automatically render the prior employment positions comparable to the specific demands and

tasks of the CSR position.31 What the ALJ overlooked is that part of what affected the ability

of Ms. Powers to learn and then successfully perform a given job in the past was determined

by the sheer repetitive nature of the tasks required.32 Unlike those positions, which Ms.

Powers testified to as involving rote procedures, the CSR position presented issues that

required problem solving–a task that would be difficult for her according to Dr. Petrick.

Critically, and contrary to the ALJ’s avowal that Ms. Powers previously disclosed her

traumatic brain injury to prior employers and co-workers, the record suggests just the


       31
        When Ms. Powers filled out employment information at the DOR, she indicated she
would not consider a position that was fast-paced or required her to read. When interviewed
by the DMV, she did not reveal either of these concerns.
       32
        Not only did Ms. Powers testify to the routine nature of her job as a cash office
associate and her rental car counter position, but in completing a work history document in
connection with her application for social security disability benefits, she also described the
bulk of her prior work positions as involving rote and repetitive tasks: “they gave me the
same thing over and over.”

                                              17

opposite. Ms. Powers made it clear she preferred not to disclose her condition/injury to her

current coworkers for fear of being judged. She told Ms. Lockard, her DOR counselor, that

she had not revealed this information to her coworkers in the past.



              Because Ms. Powers did not previously disclose her traumatic brain injury to

her previous co-workers and employers, the ALJ wrongfully concluded that where her

specific needs had been made known and then properly accommodated, she could succeed.

Given the specific lack of any request for an accommodation in those prior employment

settings,33 the ALJ’s reasoning that Ms. Powers could handle the CSR position with an

accommodation is decidedly unfounded. Moreover, the fact that the approach that worked

for her in the past (note taking, repetition, step-by-step learning) did not work in this

instance suggests a dissimilar job in terms of employment-related tasks rather than a failure

to accommodate her learning-related needs. Seemingly overlooked by the ALJ and then the

Commission is copious evidence that Ms. Powers regularly refused to take additional notes




       33
         The ALJ wrongly conflates the prior instances where Ms. Powers reportedly told
her prior employers that she learned from repetition and step-by-step training as a specific
request for an accommodation within the framework of discrimination law. There is nothing
in the record to suggest that Ms. Powers informed any of her prior employers that she had
a disability or that she pursued an ADA-related request for an accommodation based on that
disability with those prior employers.

                                             18

when so directed and also refused to reference notes she had made, preferring instead to seek

supervisory assistance.34



              Completely ignored by the ALJ is the insight that Ms. Powers’ own witness,

Dr. Petrick, provided concerning her employment-related issues at the DMV. According to

Dr. Petrick’s report and testimony, Ms. Powers has a “Mood Disorder” related to her

traumatic brain injury and he specifically advised that she should be “instructed as to how

her behavioral and emotional status might be adversely effecting [sic] her capacity to

maintain employment.”35 When presented with the training log notes that indicated Ms.

Powers was getting frustrated by her trainers, being angry, refusing to use her notes, and not

paying attention, Dr. Petrick viewed those behaviors as emotional sequela from her brain

trauma. He described her personality as “perseverative, sticky, inflexible, emotional

dyscontrol, anger, frustration, tangential, and obsessive.” Dr. Petrick stated he was not at

all “surprised” at the frustration experienced by the CSR workers who trained Ms. Powers:

“because of how Ms. Powers presents in terms of social interaction, her personal style would

probably cause a coworker to be frustrated.” In light of these characteristics, he further


       34
         And while the ALJ opted to discredit the testimony of various DMV witnesses as
to the use of written materials based on the non-production of these materials, Ms. Powers
herself testified both to note taking and to the use of a grey notebook for reference purposes.
       35
        Part of what drove Ms. Powers to contact her DOR counselor was concern that she
was going to lose her job. She informed Dr. Petrick that she “has had some difficulty
maintaining employment.”

                                              19

acknowledged that supervisors and even customers might experience frustration in dealing

with Ms. Powers.36



              During his evidentiary deposition, Dr. Petrick testified that the DMV CSR

position was not a good position for Ms. Powers “[b]ecause it requires novel problem-

solving. Every customer is different. Every situation, to some extent, is different, and . . .

. [e]very day is different.” After expressing his lack of surprise that Ms. Powers’ “failed in

this particular job,” Dr. Petrick opined that the failure resulted due to “a combination of her

injury, the training, and the job itself.” With an “infinite amount of time” and training, Dr.

Petrick believed that Ms. Powers could eventually do the job, but he could not determine

how long that might take. In completing her social security disability application, Ms.

Powers represented that she “became unable to work because of my disabling condition on

September 30, 2010”–her last day of employment at the DMV. Her application for

disability benefits was denied with the following explanation: “We realize that your

condition prevents you from doing your past job as a license clerk, but based on your age,

education, work experience, it does not prevent you from doing less demanding work.” 37

       36
         Dr. Petrick testified as to Ms. Powers being tangential, explaining her inability to
respond in a linear fashion. Rather than answering a question, Ms. Powers might address
wholly unrelated topics for multiple sentences before finally getting around to the actual
inquiry. According to Dr. Petrick, they ran out of time during the interview because of this
condition and further characterized her as “taxing” to deal with in the interview.
       37
         Consistent with Dr. Petrick’s recommendation that part-time work would be better
for her, Ms. Powers is currently holding such a position of employment.

                                              20

               Incumbent in our review of administrative cases such as these is the duty to

“determine whether the ALJ’s findings were reasoned, i.e., whether he or she considered the

relevant factors and explained the facts and policy concerns on which he or she relied, and

whether those facts have some basis in the record.” Martin, 195 W.Va. at 304, 465 S.E.2d

at 406. Upon our review of the full record in this case, we find no evidence to support the

ALJ’s conclusion that Ms. Powers is qualified to perform the essential functions of the CSR

job with a reasonable accommodation. The DMV gave Ms. Powers exactly what she

requested from day one–the opportunity to take notes, step-by-step instruction, and

repetition. As the record makes clear, Ms. Powers was given months of additional training

assistance but she repeatedly hindered that process by her unwillingness to accept what her

trainers told her and by refusing to refer to her own notes. And, by her own words, after six

months she still did not view herself as fully trained. Dr. Petrick testified that her failure was

caused not just by the training but by the very nature of the job itself. The job duties cannot

be altered so as to give Ms. Powers a slow-paced and essentially identical day-to-day work

experience. The varying transactions that present to a CSR simply cannot be formulaically-

simplified to suit Ms. Powers. This employer cannot be expected to provide an “infinite”

amount of open-ended training until she fully grasps the permutations of the job. What the

ALJ should have discerned, after months of exposure to the facts of this case, is that this

employment position was simply not a good fit for Ms. Powers. While the law requires that




                                               21

disabled individuals be given the same opportunities as nondisabled persons,38 the law does

not permanently tie the hands of an employer with regard to making personnel decisions.

See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 581 (3rd Cir. 1998) (finding proposed

accommodation to internally transfer employee whenever employee becomes stressed out

by coworkers or supervisor as improper request to establish conditions of his employment).



                 Although we are reversing the Commission’s ruling on the ground that Ms.

Powers failed to meet the initial burden of demonstrating she was a “qualified person with

a disability,” there are numerous additional grounds for reversal that we are not addressing.39

See Syl. Pt. 2, Skaggs, 198 W.Va. at 58, 479 S.E.2d at 568. What the record makes clear is

that Ms. Powers failed to demonstrate her ability and competency to perform the CSR job

with reasonable accommodations. In stark contrast to the ALJ’s conclusion that the DMV

discriminated against Ms. Powers by failing to provide a reasonable accommodation, the

record reveals an employer that was exceedingly patient with Ms. Powers, both with her




       38
            See Wernick v. Fed. Reserve Bank, 91 F.3d 379, 384 (2nd Cir. 1996).
       39
         The inferences taken by the ALJ based on its conclusion of spoliation were
unnecessarily broad and improper. The reliance on biased, self-serving testimony as to proof
of the “success” of Ms. Powers in her former positions was improperly relied upon by the
ALJ. The ALJ’s use of any discrepancy between discovery testimony and trial testimony as
a basis for wholesale exclusion of the witness’ testimony was erroneous. The employer was
wrongly faulted by the ALJ for not informing Ms. Powers’ co-workers of her alleged
condition–a condition that she herself chose not to be made known.

                                              22

requests for extended training and her need to learn the job through repetition, note taking,

and in a step-by-step fashion.



              From the outset of the final order, the ALJ vilified the DMV as unreasonable

and unwilling to accommodate the needs of Ms. Powers. The employer in this case was

faulted by the ALJ for the inadequate training it provided Ms. Powers from day one when

Ms. Powers did not reveal her brain trauma incident, much less the existence of an actual

disability until weeks or even months into her employment. In its order, the ALJ improperly

expanded the scope of what Ms. Powers asked for from the DMV in terms of assistance in

learning the job. She never, not even when she submitted an actual request for an

accommodation, included a request for absolute consistency in terms of the steps by which

she was instructed. The ALJ’s failure to consider the evidence of Ms. Powers’ personal

responsibility regarding her training issues further suggests a fundamentally flawed outcome.

Given the pattern exhibited by Ms. Powers of refusing to accept what any given trainer told

her, preferring instead to seek help from her supervisors, it is doubtful that this employer

could have ever found the perfect trainer, someone that Ms. Powers would actually listen

to and learn from.40 When viewed against the record in this case, the ALJ’s decision reflects

“a disturbing pattern of exaggerations and outright inaccuracies” seemingly designed “to


       40
         According to the testimony of Ms. Whittington, Ms. Powers didn’t trust her co­
workers: “She was combative. . . . she didn’t want to . . . listen to anything anyone said.
If it wasn’t what she thought was supposed to [be] done, she didn’t want to hear it.”

                                             23

justify a determination of discrimination.” Cobb, 217 W.Va. at 774, 619 S.E.2d at 287.41

As in Cobb, this Court will not allow the deferential standard of review regarding an ALJ”s

credibility and factual determinations to be used as a tool to accomplish a desired result.

And neither should the Commission.42



                                     IV. Conclusion

       Based on the foregoing, the decision of the Commission is reversed.

                                                                                  Reversed.




       41
        It is not lost on this Court that the ALJ who heard and decided this case was also
the ALJ in Cobb.
       42
         Because the Commission’s order relies heavily on the standard of review as its basis
for adopting the ALJ’s decision and because the Commission did not take issue with even
one statement, inference, or evidentiary exclusion, it appears that the Commission’s review
of this matter was perfunctory. We do note that the Commission reduced the ALJ’s $6,000
award for incidental damages to $5,000, which is the current maximum amount for such
damages. The Commission viewed the improper award as a “typographical error.”

                                             24
