Doe v. Mylan Pharmaceuticals, Inc.

Filing 85

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT MYLANS MOTION FOR SUMMARY JUDGMENT 57 . The Court DIRECTS the Clerk of Court to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 10/13/2017. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN DOE,
Plaintiff,
v.

//

CIVIL ACTION No. 1:16CV72
(Judge Keeley)

MYLAN PHARMACEUTICALS, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
The plaintiff, John Doe (“Doe”), has been an employee of
defendant Mylan Pharmaceuticals, Inc. (“Mylan”) since June of 2007.
Doe filed this action in the Circuit Court of Monongalia County,
West Virginia, on March 17, 2016, alleging that Mylan failed to
afford him proper accommodations for his disability in violation of
the Americans With Disabilities Act (“ADA”) and the West Virginia
Human Rights Act (“WVHRA”)(dkt. no. 1-1). Mylan removed the case to
this Court on April 27, 2016 (dkt. no. 1). Now pending is Mylan’s
motion for summary judgment, which is fully briefed and ripe for
review (dkt. no. 57). For the reasons that follow, the Court DENIES
the motion.
I. FACTUAL BACKGROUND
Mylan is a manufacturer of generic pharmaceutical products. On
or around June 18, 2017, Mylan hired Doe as a “Tablet Press

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
Operator” (dkt. no. 59-1 at 4-5), a position that requires the use
of heavy machinery (dkt. no. 59-2).
Doe is a member of the United Steel, Paper and Forestry,
Rubber,

Manufacturing,

Energy,

Allied

Industrial

and

Service

Workers International Union (“Union”)(dkt. no. 59-1 at 5). At all
times relevant to this matter, the Union and Mylan were parties to
a Collective Bargaining Agreement (“CBA”). Id. The CBA provides for
temporary alternative work for employees who become physically
unable to perform their job function(s) but who are qualified to
perform another job function (dkt. no. 59-3).
Doe suffers from a seizure disorder and, since 2008, has
experienced seizures while working at Mylan (dkt. no. 59-1 at 3).
When Doe experienced a seizure in early 2012, Mylan accommodated
him in accordance with medical restrictions related to driving
commercial vehicles, working near moving machinery, and working on
ladders or climbing (dkt. nos. 59-4 & 59-1 at 8-10).
In March of 2014, Doe suffered a seizure while at work (dkt.
no. 59-8). Following that, on April 2, 2014, Dr. Palade, his
treating physician, restricted Doe from driving and operating
heavy/electrical machinery for six months (dkt. nos. 59-4 at 14 &
59-1 at 11-12). When Doe returned to work on April 7, 2014, Mylan
accommodated his temporary inability to operate heavy machinery by
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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
reassigning him to a position in the company’s “Tool Room” for the
duration of his six-month restriction (dkt. no. 59-1 at 12-13). On
November 12, 2014, Doe was medically released from restricted duty
and returned to his prior position as a Tablet Press Operator (dkt.
no. 59-4 at 12).
Approximately one year after the seizure that resulted in his
temporary reassignment to the Tool Room, on March 25, 2015, Doe
experienced another seizure while at a rehabilitation center in
Virginia (dkt. no. 59-4 at 5-6 & 59-1 at 14). Shortly thereafter,
on March 30, 2015, Dr. Palade again restricted Doe from driving and
working near heavy/electrical machinery for six months (dkt. nos.
59-4 at 11 & 59-1 at 14).
Because

Doe’s

medical

restrictions

prevented

him

from

operating the heavy machinery used in his position as a Tablet
Press Operator, he requested a temporary reassignment to a position
in the Tool Room (dkt. no. 59-5). Although Mylan had previously
accommodated Doe’s prior heavy machinery restriction by reassigning
him to the Tool Room in 2014, Mylan did not grant the same
requested accommodation in 2015, this time citing the seniority
bidding provisions of the applicable CBA (dkt. no. 59-5).
As part of the CBA, Mylan employees must bid-in on certain
“Protected

Positions,”

including
3

the

position

of

Tool

Room

DOE v. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
Attendant,

which

Doe

requested,

and

Mylan

denied,

as

an

accommodation following his seizure in March of 2015 (dkt. nos. 593 & 59-5 at 3). The Tool Room Attendant position is filled
according
seniority,

to

Section

experience,

12.4
work

of

the

CBA,

history,

and

which
other

provides
factors

that
are

considered when bidding for an open and available Tool Room
Attendant position. Although Section 9.10 of the CBA allows Mylan
employees to temporarily perform available work consistent with
their medical restrictions, the provision is not a substitute for
the bidding process required by Section 12.10 to fill permanent
positions. Id.
According to James Brunette, Mylan’s Senior Manager of Labor
Relations, there was “not an open and available position” in the
Tool Room when Doe requested reassignment there following his
seizure in March of 2015. Id. Because Doe was restricted from using
the heavy machinery necessary to perform his job as a Tablet Press
Operator, and because Mylan denied his requested accommodation for
reassignment as a Tool Belt Attendant, he applied for and was
granted short-term and long-term disability (dkt. no. 59-1 at 1920). He collected these benefits for approximately five months,
until returning to work in September of 2015 (dkt. no. 59-1 at 7475).
4

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
On August 13, 2015, Doe’s neurologist, Dr. Murray, indicated
that Doe would be able to return to operating heavy machinery on
September 5, 2015, “if he continue[d] to be seizure free” (dkt. no.
59-4 at 6). As of September 5, 2015, however, Mylan had not
received confirmation from a physician that Doe had in fact
remained seizure free, nor had it received any other release to
return Doe to unrestricted duty (dkt. no. 59-5). On September 23,
2015, Dr. Cather released Doe to full duty with no restrictions
(dkt. no. 59-4 at 5), and Doe returned to work as a Tablet Press
Operator that same day (dkt. no. 59-1 at 30).
Approximately three months later, on December 17, 2015, Doe
suffered another seizure while working at Mylan (dkt. no. 59-4 at
15). On December 24, 2015, Dr. Cather authorized Doe to return to
work on December 28, 2015, with a recommended restriction that he
not climb ladders (dkt. no. 59-4 at 4). Upon Doe’s return to work,
Mylan accommodated his restriction by allowing him to work with
Tablet Press machines that did not require him to climb ladders
(dkt. no. 59-1 at 26-27).
In early May of 2016, Doe took several weeks of leave from
Mylan

while

suffering

from

adverse

effects

of

prescription

medication (dkt. no 59-1 at 23-24). On May 23, 2016, Dr. Cather
informed Mylan that Doe could return to work without restriction,
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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
other than that he still could not climb ladders. Id. On June 16,
2016, Dr. Cather further instructed that Doe was not to work at
heights higher than, or be on ladders taller than, two feet as a
permanent limitation (dkt. nos. 59-4 at 2 & 59-1 at 6-7). Since
June of 2016, Mylan has accommodated Doe’s permanent restriction
with regard to climbing and ladders (dkt. no. 59-1 at 25, 29).
II. STANDARD OF REVIEW
Summary
documents,

judgment

is

appropriate

electronically

declarations,

stipulations

where

the

stored

information,

.

,

.

.

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., LLC v. G.D.F., Inc., 211 F.3d 846, 850
(4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

6

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
III. APPLICABLE LAW
A.

Americans with Disability Act
The Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§ 12101 et seq., prohibits an employer from discriminating against
an

“individual

with

a

disability”

who,

with

“reasonable

accommodation,” can perform the essential functions of the job.
§ 12112(a) and (b).
To state a claim for failure to accommodate under the ADA, the
plaintiff must“demonstrate sufficient facts to permit a reasonable
inference that (1) he had a disability; (2) the defendant had

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
notice of the disability; (3) he could perform the essential
functions of his job with reasonable accommodation; and (4) the
defendant refused to make such an accommodation.” Garrett v. Aegis
Communs. Grp., LLC, 2014 WL 2931882, *3 (N.D. W.Va June 30, 2014)
(citing Mobley v. Advance Stores Co., 842 F.Supp.2d 866, 889 (E.D.
Va. 2012)(internal citations omitted)).
Reasonable
“reassignment

accommodation
to

a

under

vacant

the

position.”

ADA
See

may
29

include
U.S.C.

1630.2(o)(defining reasonable accommodation). An employer is not
required, however, to reassign a disabled employee to a vacant
position where the employer would be forced to abandon or otherwise
violate the terms of a collective bargaining agreement in order to
accommodate an employee with a disability. See U.S. Airways, Inc.
v. Barnett, 535 U.S. 391 (2002).
In Barnett, the Supreme Court held that the ADA does not
ordinarily require an employer to assign a disabled employee to a
particular position where another employee is entitled to that
position under the employer’s “established seniority system.” 535
U.S. at 405-06. In fact, an employer’s showing that a disabled
employee’s requested accommodation would violate the rules of a
seniority system “warrants summary judgment for the employer –

8

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
unless there is more.” Id. Specifically, the plaintiff must present
evidence that “special circumstances surround the particular case
that demonstrate that the assignment is nonetheless reasonable.”
Id. In other words, the employee remains free to show that special
circumstances warrant a finding that, despite the presence of a
seniority system, the requested accommodation is “reasonable” on
the particular facts of the case. Id. at 405. For example, special
circumstances

may

exist

where

an

employer

departs

from

its

seniority system fairly frequently, “reducing employee expectations
that the system will be followed – to the point where one more
departure, needed to accommodate an individual with a disability,
will not likely make a difference.” Id. In other words, an employee
might establish the requisite “special circumstances” by showing
that his employer’s seniority system “already contains exceptions
such that, in the circumstances, one further exception is unlikely
to matter.” Id.
B.

West Virginia Human Rights Act
To

state

a

claim

for

breach

of

the

duty

of

reasonable

accommodation under the West Virginia Human Rights Act (“WVHRA”),
the plaintiff must demonstrate: “(1) The plaintiff is a qualified
person with a disability; (2) the employer was aware of the

9

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
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.” Kitchen, 552 F.Supp.2d at 593(quoting Syl. pt. 2,
Skaggs v. Elk Run Coal Co., 479 S.E.2d 561 (W.Va. 1996)).
IV. LEGAL ANALYSIS
Mylan seeks summary judgment on both Doe’s ADA and WVHRA
claims (dkt. no. 57). Mylan does not dispute that Doe has a
disability or that Mylan had notice of it. Id. at 8. Rather, Mylan
argues that there were times when Doe could not perform the
essential functions of his job with reasonable accommodation. Id.
Specifically, it argues that Doe’s disability prevented him from
performing essential functions of his job as a Tablet Press
Operator and that it would have been unreasonable for Mylan to
accommodate Doe by reassigning him to the Tool Room “every time” he
had a seizure, or “for an indefinite period” of time, because such
an accommodation would violate the seniority rights of other
employees under the applicable CBA. Id.

10

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
In his response brief, Doe argues that there are genuine
issues of material fact as to whether Mylan could have reasonably
accommodated

Doe

following

his

seizure

in

March,

2015

by

reassigning him to the Tool Room (dkt. no. 60). In its reply brief,
Mylan reasserts its position that Doe’s failure to accommodate
claims fail as a matter of law under both the ADA and the WVHRA
because

placing

Doe

in

the

Tool

Room

would

have

violated

established seniority rights under the CBA (dkt. no 65).
For the reasons that follow, the Court finds that there are
material facts in dispute and DENIES the motion.
A.

Failure to Accommodate Under ADA
It is undisputed that Doe, a Mylan employee, is an “individual

with a disability” and that he requested reassignment to the Tool
Room Attendant position as a “reasonable accommodation” for his
disability. At issue is whether Doe’s reassignment to the Tool Rom
was a “reasonable” accommodation where such an assignment seemingly
conflicts with Mylan’s established seniority bidding system under
the applicable CBA.
Under

Barnett,

an

employer’s

showing

that

a

disabled

employee’s requested assignment conflicts with an established
seniority system is “ordinarily” sufficient to show that the

11

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
proposed accommodation is not reasonable. 535 U.S. 391, 406.
However, the employee may nonetheless present evidence of “special
circumstances” that makes an exception to the seniority system
“reasonable” under the particular facts of the case. In order to
meet his burden of showing special circumstances that make an
exception to the seniority rules reasonable, the plaintiff must
“explain,
employer’s

why,

in

the

seniority

particular
policy

case,

can

an

exception

constitute

a

to

the

‘reasonable

accommodation,’ even though in an ordinary case it cannot.” Id. at
406.
Here, Mylan has averred that Doe’s requested reassignment to
the Tool Room would violate the rules of the company’s existing
seniority bidding system under the CBA. Following his seizure on
March 25, 2015, Doe requested reassignment to the Tool Room as an
accommodation

for

his

restriction

against

the

use

of

heavy

machinery, which left him unable to perform his job as a Tablet
Press Operator. The position of Tool Room Attendant is protected
under the CBA (dkt. no. 79-3 at 4). Accordingly, pursuant to
Section 12.4 of the CBA, the Tool Room Attendant position is filled
by “seniority and qualifications.” Id.
Section 12.10 of the CBA specifically provides that, to
temporarily fill an open Tool Room position, Senior Tablet Press
12

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
Operators with the most time in the department have priority to bid
on the position, followed by Senior Tablet Press Operators by
seniority, and finally, Tablet Press Operators based on their time
in the department. Id. at 5.

Accordingly, all Senior Tablet Press

Operators would have a contractual right to work in the Tool Room
prior to Doe, as well as all Tablet Press Operators with more time
in the department. Id.
Despite Mylan’s showing that Doe’s requested accommodation
would have violated the rules of its existing seniority system
under the CBA, Doe can nonetheless avoid summary judgment by
presenting evidence of special circumstances that make an exception
to the seniority rules “reasonable” in this particular case.
Barnett, 535 U.S. at 391. Here, Doe has put forth evidence that
Mylan reduced its employees’ expectations that the CBA’s seniority
system would be followed with regard to temporary placements for
employees with disabilities. Specifically, Doe has shown that,
prior to his 2015 request for reassignment to the Tool Room, Mylan
had previously accommodated disabled employees, including Doe
himself, by reassigning them to various positions within the
company, without regard to the CBA’s seniority bidding provisions.
Most notably, when Doe experienced a seizure in March of 2014
and was subsequently restricted from operating heavy machinery for
13

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1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
six months, Mylan temporarily reassigned him to the position of
Tool Room Attendant - the very position to which Doe sought
reassignment one year later after suffering a seizure in March,
2015 and being placed on the exact same work restrictions for the
exact

same

period

of

time.

Doe’s

position

that

special

circumstances in the case warrant an exception to the seniority
system is further supported by the affidavit of Dawn Golden, which
states that, as reasonable accommodation for disability-based work
restrictions, Mylan had reassigned her and other disabled employees
to various positions in the company, without Mylan or the Union
requiring them to bid on the jobs through the process outlined in
the CBA (dkt. 64-1 at 2-3).
Construing these facts in the light most favorable to Doe,
there is a genuine dispute as to whether Mylan had reduced its
employees’ expectations that the CBA’s seniority system would be
followed. Therefore, assuming that Doe’s requested accommodation
would be “reasonable” within the meaning of the ADA were it not for
the fact that the assignment would violate the seniority provisions
of the CBA, there is a factual question for the jury as to whether
Doe’s

requested

accommodation

was

circumstances of this particular case.

14

“reasonable”

under

the

DOE v. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
In addition to the role of the seniority system in determining
the reasonableness of Doe’s requested accommodation, the parties
also dispute the availability of a Tool Room Attendant position at
the time Doe requested placement there after his March, 2015
seizure. Mylan asserts that, at the time of Doe’s request, there
was not an open and available position in the Tool Room. Mylan
attempts to distinguish the availability of such a position for Doe
in 2014 from the alleged lack thereof in 2015 by asserting that
Doe’s first placement in the Tool Room was “to assist the incumbent
employee with overflow duties” (dkt. no. 58 at 3). As pointed out
by Doe, however, the portion of the record cited by Mylan for this
proposition does not make clear that Doe’s 2014 placement in the
Tool Room was merely to “assist” another employee or that the
position was associated solely with temporary “overflow duties”
(dkt. no. 59-1 at 54-55). Accordingly, there is a genuine issue of
material fact as to whether an open and available Tool Room
position existed at the time Doe requested a second placement
there.
Finally, the parties dispute the length and nature of Doe’s
requested accommodation. Within a few days of Doe’s March 25, 2015,
seizure, Dr. Palade restricted him from operating heavy machinery
for six months from the date of the seizure(dkt. no. 59-4 at 1015

DOE v. MYLAN PHARMACEUTICALS, INC.

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 57]
11). On August 13, 2015, Dr. Murray indicated that Doe would be
able return to operating heavy machinery, and thus return to his
position as a Tablet Press Operator, on September 5, 2015, so long
as he did not have another seizure before then (dkt no. 5-4 at 6).
Mylan asserts, however, that had it placed Doe in the Tool Room in
May 2015 as he requested, he “would have held the position for at
least 12 months or possibly longer” (dkt. no. 59-5 at 4). Under
such circumstances, Section 12.2 CBA would have required Mylan to
offer Doe the opportunity to remain in the Tool Room position on a
permanent basis, thus circumventing the seniority bidding process
as established in Sections 12.4 and 12.10 of the agreement, and
thereby violating the rights of other Union employees with higher
seniority status to bid on a Tool Room position. Accordingly, there
is a genuine issue of material fact as to how long Doe would have
required accommodation in the Tool Room position.
When these facts are viewed in the light most favorable to
Doe, there are clearly material disputes that preclude judgment as
a matter of law. The parties dispute whether Mylan had established
a practice of assigning disabled employees to other positions
without regard to the CBA’s seniority bidding provisions. They also
dispute the availability of an open and available position in the
Tool

Room

at

the

time

Doe

requested
16

placement

there

as

an

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MEMORANDUM OPINION AND ORDER DENYING MYLAN PHARMACEUTICALS’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 57]
accommodation for his medical restrictions. There also is a dispute
concerning for how long Doe would have held the Tool Room position
had he been placed there as requested. Thus, evidence is in contest
as to whether a reasonable accommodation existed and whether Mylan
failed to provide Doe with such an accommodation.
B.

Failure to Accommodate Under WVHRA
For the same reasons that Mylan’s motion for summary judgment

as to Doe’s claim for failure to accommodate under the ADA, it must
also be denied under the WVHRA. As discussed above, genuine issues
of material fact exist as to whether a “reasonable” accommodation
existed that met Doe’s needs and as to whether Mylan failed to
provide such an accommodation.
V. CONCLUSION
For the reasons discussed, the defendant’s motion for
summary judgment (dkt. no. 57) is DENIED. The case will proceed
to trial as scheduled.
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of
this Order to counsel of record and to enter a separate judgment
order.
DATED: October 13, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
17