W.Va. Supreme Court gives depressed UPS driver reason to cheer

In Smith v. West Virginia Human Rights Commission, No. 31645 (July 2, 2004), the West Virginia Supreme Court of Appeals found that UPS discriminated against a package car driver with major depression by failing to accommodate her.

The Plaintiff, Patti Smith, worked as a package car driver until she became unable to work due to major depression. In May 1995, her doctor released her to work, but restricted her to positions which were "structured" and did not involve contact with the public. The package car position did not meet either requirement, and although UPS had a few indoor positions, Smith lacked the seniority to bump any of the employees working those positions. It terminated her employment in December 1995, and Smith filed a disability discrimination complaint with the West Virginia Human Rights Commission.

The case was heard by an ALJ who found in her favor. On appeal to the full Commission, the ruling was reversed and remanded. A second ALJ was assigned to the case, and again found in Smith's favor. It awarded her back pay and benefits in the amount of $115,549.23; attorney fees and costs of $75,288.14; and $3,277.45 for humiliation, embarrassment, emotional distress and loss of personal dignity. UPS appealed again to the full Commission, and the Commission reversed the award, finding that although Smith was a qualified person with a disability, UPS did not breach its duty of reasonable accommodation. Smith appealed to the West Virginia Supreme Court of Appeals, which reversed the latter part of the Commission's order.

The State Supreme Court held that

- "Depression is a disability cognizable under the Human Rights Act, so long as that depression impairs a major life activity. W.Va. Code, 5-11-3(m) [1998]." Syl. Pt. 4.

- Because Smith's inability to interface with the public precluded her from working 22.7% of jobs (according to expert testimony), her depression sufficiently limited her major life activity of working.

- Even though the case law in 1995 indicated that "an employer is not required to create a special job for an employee who cannot do the one for which she was hired," Coffman v. Board of Regents, 182 W.Va. 73, 386 S.E.2d 1 (1988), the controlling authority was the legislative rule in 77 W.Va.C.S.R. 4.5, which stated that "[r]easonable accommodations include ... reassignment to a vacant position for wich the person is able and competent ... to perform[.]" Coffman, of course, was overruled on the vacant position rule in 1996 by Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 479 S.E.2d 561 (1996). The Court held in Syllabus Point 5 of Smith that "[a] regulation that is proposed by an agency and approved by the Legislature is a 'legislative rule' as defined by the State Administrative Procedures Act, W.Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of law."

- The case was remanded for further proceedings.

Maybe I am just nit-picking, but I am troubled by the deviation of Syllabus Point 4 from the statutory standard. To be consistent with the statute it cites, the syllabus point should read, "Depression is a disability cognizable under the Human Rights Act, so long as that depression substantially limits a major life activity. W.Va. Code, 5-11-3(m) [1998]." A mere impairment is not necessarily a "disability," nor is an impairment that only slightly limits a major life activity. The Court uses the term "substantially" elsewhere in the body of the opinion, but the syllabus point quotes a passage that is a bit sloppy in paraphrasing the law. The word "substantially" is an incredibly important part of the definition, and it should not have been left out of the syllabus point. For instance, reasonable people could disagree that an impairment that leaves a person qualified for 77.3% of all jobs does not "substantially limit" the major life activity of working. But that is water under the bridge.

Justices Maynard and Davis dissented from the opinion, in part, finding that the majority improperly "concluded that UPS never made any effort to reassign the appellant to a vacant position and failed to make any effort to give the appellant part-time or modified work schedules." They fault the majority for unfairly concluding that "since UPS is a large corporation which employs many people, it could have and should have reasonably accommodated the appellant's disability by providing her another job in its South Charleston facility."