                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Cassandra Bush, Administratrix of the
Estate of David McFann,                                                                 FILED
Plaintiff Below, Petitioner
                                                                                     June 18, 2020
                                                                                    EDYTHE NASH GAISER, CLERK
vs.) No. 18-1085 (Cabell County)                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA

Convergys Customer Management Group Inc. and
DIRECTV Customer Services, Inc.,
Defendants Below, Respondents


                               MEMORANDUM DECISION
        Petitioner Cassandra Bush, Administratrix of the Estate of David McFann, by counsel
James D. McQueen, Jr., appeals the Circuit Court of Cabell County’s November 5, 2018 order
granting the respondents’ consolidated motion for summary judgment. The respondents,
Convergys Customer Management Group, Inc. (“Convergys”) and DIRECTV Customer Services,
Inc. (“DIRECTV”) (collectively, “respondents”), by counsel Joseph M. Ward, filed a response in
favor of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in finding
that her claims of disability discrimination and failure to accommodate fail as a matter of law and
in finding that the respondents were not participants in a joint venture with Starz that would have
subjected them to liability.

       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 the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

       David McFann (“Mr. McFann”) began his employment with Convergys in 2015 as a work-
at-home (“WAH”) agent. He was hired and trained by Convergys to field calls for DIRECTV. As
a WAH agent, his duties were to answer calls from customers who needed education or assistance
with their account or the use of their equipment. When Mr. McFann was hired, Convergys did not
ask for information regarding his health. At that time, Mr. McFann suffered from chronic
pulmonary disease (“COPD”) and emphysema. However, he admitted that his employer did not
know about these conditions prior to April of 2015. He worked exclusively from home, and no
Convergys employee had occasion to visit his home.

       During his initial training at Convergys in 2015, Mr. McFann learned about an incentive
program offered by Starz. Specifically, the two WAH agents who sold the most Starz package
upgrades to DIRECTV customers in April of 2015 would win an all-expense paid trip to

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Hollywood, California. Although it was not a requirement of his job, Mr. McFann participated in
the contest. In addition to Convergys employees, employees of Convergys competitors working
on DIRECTV accounts were also eligible to participate. Starz managed the contest and
coordinated all travel arrangements for the winners.

         In mid-April of 2015, Mr. McFann was told by his supervisor, Jason Chaney, that he was
in the running for the Hollywood trip and had a good chance of winning. At that time, Mr. McFann
mentioned that he had COPD and that he did not travel because of his disability. Mr. McFann also
claims to have told Mr. Chaney that his condition would require special accommodations—
nighttime oxygen, oxygen to board the plane, a portable nebulizer, special accommodations to get
to the plane and special transportation while in Hollywood to address his walking limitations—
should he win the trip. Mr. McFann did not tell Mr. Chaney that he could not accept the prize.

        After the contest ended, Mr. McFann was told by his supervisor that he had won. At that
time, the petitioner alleges that Mr. McFann told his supervisor that he had not heard anything
about his options (for example, whether he could receive compensation in lieu of taking the prize
or what accommodations may be made). Thereafter, Mr. McFann learned that the prize had been
awarded to the next runner-up. Petitioner alleges that Mr. McFann’s supervisor told him that he
would be compensated, but that Mr. McFann was later told that there would be no compensation
because it was not in the budget.

        On March 15, 2016, Mr. McFann filed suit against Convergys and DIRECTV alleging a
single count of disability discrimination in violation of the West Virginia Human Rights Act
(“WVHRA”). The complaint was amended three times to add additional parties, including Starz,
and to allege the existence of a joint venture and/or common law partnership between respondents
and Starz. By agreed order, Starz was dismissed from the action on or about June 1, 2018.

       On or about July 20, 2018, the respondents filed a consolidated motion for summary
judgment. A hearing on the consolidated motion for summary judgment was held on October 2,
2018, and by order entered November 5, 2018, the circuit court granted the respondents’
consolidated motion for summary judgment.

        The circuit court determined that Mr. McFann could not establish a prima facie case of
disability discrimination because he failed to identify an adverse employment action. The circuit
court also noted that any adverse action that may have been taken was taken by Starz, not the
respondents. Further, the circuit court determined that Mr. McFann’s joint venture theory failed
because he could not establish that a contract existed among Convergys, DIRECTV and Starz,
either express or implied, whereby those parties carried out a single business enterprise for profit
for which they combined their property, money, effects, skill, and knowledge. After entry of the
circuit court’s order, Mr. McFann filed the instant appeal. Soon thereafter, Mr. McFann died, and
petitioner, the administratrix of Mr. McFann’s estate, was appropriately substituted in his stead.

       “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus Point 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further, we have held that




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               “[i]f the moving party makes a properly supported motion for summary
       judgment and can show by affirmative evidence that there is no genuine issue of a
       material fact, the burden of production shifts to the nonmoving party who must
       either (1) rehabilitate the evidence attacked by the moving party, (2) produce
       additional evidence showing the existence of a genuine issue for trial, or (3) submit
       an affidavit explaining why further discovery is necessary as provided in Rule 56(f)
       of the West Virginia Rules of Civil Procedure.” Syllabus Point 3, Williams v.
       Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

Syllabus Point 2, Andrews v. Antero Res., 241 W. Va. 796, 828 S.E.2d 858 (2019). We have
additionally stated that

       “the party opposing summary judgment 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.” Painter v. Peavy, 192 W.
       Va. at 192-193, 451 S.E.2d at 758-759 (quoting Anderson v. Liberty Lobby, Inc.,
       477 US. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986)).

Andrews, at 811, 828 S.E.2d at 873.

        On appeal, petitioner asserts four assignments of error: (1) the circuit court erred in holding
that Mr. McFann could not establish a prima facie case of discrimination because he failed to
identify an adverse employment action; (2) the circuit court erred in holding that the Hollywood
promotion was not a term or condition of Mr. McFann’s employment with Convergys; (3) the
circuit court erred in holding that Mr. McFann could not establish that he required an
accommodation in order to perform the essential functions of his job; and (4) the circuit court erred
in holding that the joint venture claim fails as a matter of law.

        Petitioner first contends that the circuit court erred by relying on Skaggs v. Elk Run Coal
Co., Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996), in ruling that Mr. McFann failed to establish a
prima facie case for disability discrimination associated with the deprivation of a privilege of
employment. We do not agree. In Skaggs, we held that the elements of a prima facie case are:

       [1]the plaintiff must show that he is a disabled person within the meaning of the
       law, [2] that he is qualified to perform the essential functions of the job (either with
       or without reasonable accommodation), and [3] that he has suffered an adverse
       employment action under circumstances from which an inference of unlawful
       discrimination arises.

Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 71 n. 22, 479 S.E.2d 561, 581 n. 22 (1996).

        When reviewing a circuit court’s determination concerning whether an employee has
suffered an adverse employment action, this Court has considered factors such as whether a
plaintiff retained his or her title, continued to work the same hours, had the same general terms
and conditions of employment, and received any pay raises. Waddell v. John Q. Hammons Hotel,
Inc., 212 W. Va. 402, 572 S.E.2d 925 (2002). In its order, the circuit court noted that Mr. McFann

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conceded “that he continued to do the same job before and after the contest and that he did not
suffer a loss in compensation as a result of his inability to take the Hollywood trip.”1 Because no
adverse employment action occurred, petitioner failed to show that Mr. McFann established a
prima facie case for disability discrimination.

         Petitioner also contends that the circuit court erred by not considering the Hollywood
promotion a privilege of Mr. McFann’s employment. Petitioner incorrectly asserts that the circuit
court ignored whether the Hollywood promotion was a privilege of employment. The circuit court
noted that Mr. McFann had argued that he had been denied a privilege of his employment by not
receiving the prize. However, petitioner “cited to no law establishing that participation in an
optional program unconnected to the terms or conditions of [Mr. McFann’s] employment gives
rise to a duty under the WVHRA.”

       Petitioner also asserts that the circuit court erred by holding that she could not establish
that Mr. McFann required an accommodation in order to perform the essential functions of his job.
Specifically, petitioner argues that respondents’ failure to provide accommodations to “assist [Mr.
McFann] in his travels” constitutes a violation of the WVHRA. The circuit court correctly noted
that the WVHRA requires an employer to “make reasonable accommodations for known
impairments to permit an employee to perform the essential functions of the job.” Skaggs, 198 W.
Va. 51, 65, 479 S.E.2d 561, 575 (1996). Therefore, the appropriate inquiry in this case is whether
Mr. McFann required an accommodation in the form of assistance in his travels to Hollywood in
order to perform the essential functions of his job. Burns v. West Virginia Department of
Education and the Arts, 242 W. Va. 392, 836 S.E.2d 43 (2019).

       To state a claim for breach of the duty of reasonable accommodation under the
       West Virginia Human Rights Act, a plaintiff must allege 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.

Syllabus Point 2, Skaggs, 198 W. Va. 51, 479 S.E.2d 561 (1996). The circuit court found, and we
agree, that Mr. McFann was unable to prove elements three, four and six. For this reason, the
circuit court properly held that Mr. McFann failed to establish a claim for failure to accommodate
a disability. Specifically, Mr. McFann failed to establish that he required an accommodation in
order to perform the essential functions of his job. The accommodations Mr. McFann sought were
strictly related to the trip to Hollywood and were not required by him to perform the essential
functions of his job. Petitioner has not shown that the circuit court erred in so finding.

        Petitioner also contends that the circuit court erred in holding that the joint venture claim
failed because Mr. McFann could not establish that, with regard to the contest, a contract existed


1
 Mr. McFann testified that he had not suffered any detrimental effect to his hourly rate of pay, his
benefits, his paid holidays, his sick leave or his ability to participate in promotions.
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between the respondents and Starz, whereby those parties carried out a single business enterprise
for profit for which they combined their property, money, efforts, skill, and knowledge.

        “‘A joint venture or, as it is sometimes referred to, a joint adventure, is an
       association of two or more persons to carry out a single business enterprise for
       profit, for which purpose they combine their property, money, effects, skill, and
       knowledge. It arises out of a contractual relationship between the parties. The
       contract may be oral or written, express or implied.’ Syl. pt. 2, Price v. Halstead,
       177 W. Va. 592, 355 S.E.2d 380 (1987).”

Syllabus Point 5, Armor v. Lantz, 207 W. Va. 672, 535 S.E.2d 737 (2000). The circuit court
correctly held that Mr. McFann did not establish, with respect to the contest, that a contract, either
express or implied, existed among Convergys, DIRECTV and Starz whereby those entities carried
out a single business enterprise for profit. Mr. McFann failed to produce any financial records
showing that Convergys, DIRECTV, and Starz shared profits. Because employees of Convergys’s
competitors also participated in the contest, petitioner cannot establish that the Starz Hollywood
Package was a single business enterprise among the respondents and Starz. For these reasons, the
circuit court correctly ruled that summary judgment is appropriate on the joint venture claim.

     For the foregoing reasons, we affirm the circuit court’s November 5, 2018 order granting
summary judgment to respondents.

                                                                                           Affirmed.


ISSUED: June 18, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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