Tullius v. Silgan Plastics Corporation

Filing 117

MEMORANDUM OPINION AND ORDER GRANTING 101 DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT AND 108 MOTION TO STRIKE PORTIONS OF PLAINTIFF'S RESPONSE. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Should the plaintiff choose to appeal, she is advised that she must file a notice of appeal within 30 days after the date of entry of the judgment order in this case. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/8/2017. (copy to Pro Se Plaintiff via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 5/9/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EDNA J. TULLIUS,
Plaintiff,
v.

Civil Action No. 5:15CV149
(STAMP)

SILGAN PLASTICS CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT
AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S RESPONSE
I.

Procedural History

The pro se1 plaintiff, Edna Jo Tullius, filed a complaint in
the Circuit Court of Ohio County, West Virginia, on August 11,
2015.

In her complaint, the plaintiff alleges that the defendant,

her former employer Silgan Plastics Corporation, discriminated
against her in violation of the West Virginia Human Rights Act
(“WVHRA”), West Virginia Code § 5-11-1 et seq., by terminating her
employment at the conclusion of her six-month short-term disability
leave.

Specifically, the plaintiff states claims for (1) failure

to accommodate disability, (2) discrimination on the basis of
disability, and (3) retaliatory discharge, all in violation of the
WVHRA, which uses the same framework as Title VII.

The defendant

properly removed the case to this Court on November 23, 2015, on

1

The pro se plaintiff has informed the Court throughout the
course of this litigation that she will get an attorney but has not
done so up until this point.

the basis of diversity jurisdiction.

On January 12, 2017, the

defendant filed a renewed motion for summary judgment.

The Court

had previously denied without prejudice the defendant’s first
motion for summary judgment because discovery motions were still
pending before the magistrate judge. The Court heard oral argument
on the renewed motion for summary judgment, during which both sides
offered their positions on the matter.
At issue in this memorandum opinion are (1) the defendant’s
renewed motion for summary judgment (ECF No. 101) and (2) the
defendant’s motion to strike portions of the plaintiff’s response
to the defendant’s renewed motion for summary judgment (ECF No.
108).

For the reasons set forth below, the defendant’s motion for

renewed summary judgment and its motion to strike portions of the
plaintiff’s response are both granted.
II.
A.

Facts

The Defendant’s Statement of Uncontroverted Material Facts
The

Court

has

reviewed

the

defendant’s

statement

of

uncontroverted material facts in support of its motion for renewed
summary judgment and compared it to the exhibits in the record.
Pursuant to this review, the Court finds that the defendant’s
statement of uncontroverted material facts is correct and, thus,
the Court hereby adopts them.

Additionally, the plaintiff’s

objections to the defendant’s statement of uncontroverted material
facts are without merit because they are only argument with no

2

reference to any exhibits.

Those facts, adopted by the Court, are

as follows:
1.
America

Silgan Plastics is a manufacturer of plastics in North
and

locations

operates

across

twenty

North

manufacturing

America,

plants

including

its

facility located in Triadelphia, West Virginia.
2.

in

various

manufacturing

Ex. No. 1.

Plaintiff Edna Jo Tullius (formerly known as Edna Jo

Redman) (hereinafter, “Plaintiff”) began her employment with Silgan
on June 4, 1997, as a production laborer operating a forklift. Ex.
No. 1; Ex. No. 2, at 44-45.
3.

Plaintiff was promoted to the position of Injection

Operator and remained in that position for the remainder of her
employment with Silgan.
4.

Ex. No. 1.

As an Injection Operator, Plaintiff was responsible for

operating a room usually containing three to five plastic molding
machines weighing up to 300 tons each.
5.

Ex. No. 1.

Within her assigned room, Plaintiff was responsible for

performing quality checks, packaging parts, moving boxes, shipping
boxes, printing labels, performing minor repairs on machines, and
responding to the machine’s warning indicators before the machine
goes down.
6.

Ex. No. 2, at 47-48.
Plaintiff

testified

that

her

work

at

Silgan was

dangerous, that there are risks present in working with large

3

machines at Silgan, and that the position required that she was
careful to avoid injury.
7.

Ex. No. 2, at 48-49.

Silgan’s attendance policy, set forth in its Employee

handbook, states that “[a]n absence is defined as a period of one,
two, or three consecutive days being out for the same reason,” and
“[i]f one incident is three (3) days or longer, you must return
with a note from a medical provider.”
8.

Ex. No. 3, at 42.

Silgan’s Short Term Disability Policy states “Silgan

Plastics LLC (the “Company”) provides you Short Term Disability pay
(“STD pay”) if you are temporarily unable to work because of a
disability . . . [a]t the end of your short-term disability period,
if you have not returned to active work with Silgan Plastics, your
employment will be terminated if you fail to demonstrate that you
are ready, willing, and able to work, with or without reasonable
accommodation.”
9.

Ex. No. 4.

Plaintiff suffered from depression and anxiety issues

dating back to at least 2002, for which she received treatment from
psychiatric professionals and was prescribed medications including
Zoloft.
10.

Ex. No. 2, at 57-58; Ex. No. 5.
Plaintiff

testified

that

she

has

been prescribed

antidepressant medications throughout her “whole entire lifetime”
but only took the medications for about a month and never refilled
the prescriptions because she was “stronger-minded than that” and
did not “want to rely on medications.”

4

Ex. No. 2, at 59 and 62.

11.

Beginning in March 2010, Plaintiff was placed under the

care of Dr. Matthew Wood for extreme depression and anxiety.

Ex.

No. 2, at 62.
12.

On March 1, 2010, Plaintiff requested time off until

March 22, 2010, presenting a physician’s note from Dr. Wood, who
was treating Plaintiff for “major depression and anxiety.”

Ex.

No. 6.
13.

On March 29, 2011, Plaintiff provided Silgan with a

certification

of

health

care

provider

from

Dr.

Wood

for

intermittent leave under the Family and Medical Leave Act (“FMLA”)
for severe Psoriatic arthritis, which causes flare-ups related to
stress and activity, during which symptoms included swelling and
lack of motion in hands, feet, and joints preventing Plaintiff from
performing work.
14.

Ex. No. 7.

On May 3, 2011, Plaintiff submitted her claim for short-

term disability, describing disability as “flare ups & severe pain
from arthritis causing major depression and anxiety.”

Plaintiff’s

last day worked was April 10, 2011, and her expected return was May
20, 2011.
15.

Ex. No. 8.
On May 3, 2011, Dr. Wood provided his certification for

Plaintiff’s short-term disability leave, noting that Plaintiff was
suffering from arthritis, anxiety, and depression.

5

Ex. No. 9.

16.

On June 10, 2011, Dr. Wood provided a note stating that

Plaintiff was to remain on continued FMLA leave due to her medical
issues.
17.

Ex. No. 10.
On July 1, 2011, Podiatrist Dr. Joseph Goodwin provided

a health care certification for FMLA leave stating that Plaintiff
had surgery and was on crutches for her condition beginning May 19,
2011, for which she was to remain off of work through August 31,
2011, and noting that she may require one to two days off at a time
two to three times a month for flare-ups.
18.

On August 25, 2011, Dr. Goodwin release Plaintiff to

return to full duty on August 31, 2011.
19.

Ex. No. 11.

Ex. No. 12.

On April 3, 2012, Plaintiff contacted Dr. Evans’s office

reporting that she could not straighten out her hands “no matter
how she tries” and that “the pain is unbearable.”
20.

Ex. No. 13.

On May 30, 2012, Plaintiff provided a certification of

health care provider for FMLA leave from Dr. Catherine Evans
stating that Plaintiff suffered from possible psoriatic, likely
degenerative,

arthritis

which

resulted

in

episodic

flare-ups

causing incapacitating pain and decreased ability to move; also
noted that Plaintiff might have lupus and was undergoing evaluation
for that condition.

During the flare-ups, Dr. Evans stated that

Plaintiff was totally disabled for two days at a time one to two
times per month.

Ex. No. 14.

6

21.

Plaintiff testified that, throughout the times of her

various leaves of absence, she lied, “faked,” and exaggerated her
physical symptoms to her various physicians in order to obtain
their consents so that she could take disability leaves.

Ex. No.

2, at 96, 107, 109, 113, 116-20, 123, 125, 142-45, 185, 204, and
206.
22.

On July 30, 2012, after seeing Plaintiff, Dr. Evans noted

that Plaintiff continued to have “a lot of anxiety.”
23.

Ex. No. 13.

On August 1, 2012, Plaintiff began a leave of absence.

Ex. No. 15.
24.

Plaintiff executed a Statement of Claim for Short Term

Disability on August 12, 2012, showing a last date worked on August
1, 2012, and stating that she had been “diagnosed with Lupus need
further testing also having extreme fatigue due to white blood cell
count being low”; her anticipated return date was listed as “4
weeks.”
25.
provided

Ex. No. 15.
To substantiate Plaintiff’s request for leave, Dr. Seaman
a

physician’s

short-term

disability

statement

for

Plaintiff listing a disability beginning date of May 17, 2012 and
indicating that Plaintiff could return on December 1, 2012, to
modified duty requiring that she “avoid repetitive use of hands,”
which he signed on August 31, 2012.
26.

On

September

11,

Ex. No. 16.

2012,

Dr.

Seaman

provided a

certification of health care provider for FMLA leave for Plaintiff

7

in which he described her condition as osteoarthritis and mixed
connective

tissue

disease,

which,

having

begun

in

2006,

he

described as being of “indefinite” duration and as rendering her
unable

to

perform

“repetitive

use

of

hands

standing

walking

prolonged periods,” as well as directing a reduced work schedule of
two hours per day, two days per week for an indefinite period of
time based upon his anticipation of flare-ups three times per week
for three days per episode during which “pain and suffering will
preclude any work activity.”
27.

Ex. No. 17.

October 18, 2012: Plaintiff tells Dr. Evans that she has

presented FMLA paperwork to Dr. Seaman to validate her leave but
that he is taking too long and requests that Dr. Evans provide a
note regarding her need for continued FMLA leave, which Dr. Evans
did, noting that Plaintiff “continues to need FMLA time off due to
her Lupus.”
28.

Ex. No. 18.

Plaintiff was seen by Dr. Ghodrial on October 29, 2012,

at which time she told him that she had problems since losing her
job due to issues on the job, despite the fact that Plaintiff was
still employed by Silgan at that time, and during which visit
Plaintiff was diagnosed with bipolar disorder.
29.

November 14, 2012:

Ex. No. 19.

Plaintiff followed up with Dr. Evans

who noted diagnoses of anxiety, depression, and bipolar disorder.
Records of Dr. Evans.

8

30.

Plaintiff disagreed with Dr. Ghodrial’s diagnosis, so she

“declared [herself] better,” meaning that she elected not to follow
his

medical

advice,

to

continue

taking

the

medication

prescribed, or to continue allowing him to treat her.

he

Ex. No. 2 at

187.
31.

Also on December 27, 2012, on a patient phone call

record, Dr. Evans noted that Plaintiff had told her she had called
every psychiatrist on a list that Dr. Evans had provided but had
been unable to obtain an appointment and was waiting to hear back
for

an

appointment.

On

that

same

note,

Dr.

Evans

denied

Plaintiff’s request to fill a prescription for Ativan because “she
will get addicted,” and noted that Plaintiff was not on any
medication for anxiety and that she “cries a lot,” along with a
question as to who she could see for a psychological evaluation,
noting “I have tried different meds for her before without success
– needs psych help go to emergency services if needed.”

Ex.

No. 13.
32.

On that same date, December 27, 2012, Dr. Evans released

Plaintiff to return to work.
33.

Ex. No. 20.

Plaintiff showed up for work on January 2, 2013, but was

not allowed to return because her drug testing results – passage of
which is required in order to return to work from short-term
disability leave – had not yet been received.

9

Ex. No. 2 at 128.

34.

On January 10, 2013, Dr. Evans revoked Plaintiff’s prior

release and ordered her to return for reevaluation.
35.

On January 30, 3013, Plaintiff returned to work from her

leave of absence.
36.

Ex. No. 21.

Ex. No. 1.

On February 13, 2013, Plaintiff’s sixth day back from her

leave of absence, she reported to work at 1:49 p.m., more than six
hours late for her shift.
37.

Ex. No. 1.

On February 14, 2013, a child abuse action instituted by

Plaintiff, acting pro se, against her ex-husband, was thrown out of
court, causing her to seek a loan against her retirement account
and causing her significant distress.
38.

Ex. No. 22.

On February 15, 2013, Plaintiff’s seventh day after

returning from leave, Plaintiff needed to be relieved at work while
she cried at work for approximately 2.5 to 3 hours, during which
time someone else was required to perform the functions of her
position.
39.

Ex. No. 22.
On February 18, 2015, Plaintiff told Human Resources

Manager Debbie Turziano that she considered shooting herself in the
head the day before due to a number of stresses in her life, after
which Ms. Turziano instructed Plaintiff to call the employee
assistance hotline number or else she may be forced to go on leave.
Ex. No. 23.

10

40.

On February 19, 2015, Plaintiff began a leave of absence,

having worked only eight shifts since returning from her prior sixmonth leave of absence.
41.

Plaintiff

Ex. Nos. 1 and 24.

testified

that,

in

addition

to

the other

sources of stress and anxiety described herein, her teenage nephew,
David, also died of cancer on or about February 27, 2013, causing
her extreme sadness, depression, insomnia, and anxiety, and she
attributed frequent, prolonged crying spells around this time to
her grief.

Ex. No. 2, at 98-99, 114-15, 131, 148, 168, 178-79,

185, 252, and 257.
42.

On March 5, 2013, Dr. Evans provided a physician’s

statement for Plaintiff’s short-term disability application stating
that Plaintiff suffers from severe depression, was unable to
function at work, suffered frequent crying spells, insomnia, and
fatigue, and recommending counseling and medication, noting that
she had a psychiatric appointment on March 14, 2013, and stating an
expected return to work date of August 1, 2013.
43.

Plaintiff

testified

that

she

Ex. No. 25.

believed

that

she had

attended that appointment but had “never followed up with any
doctors.”
44.

Ex. No. 2 at 178.
Plaintiff testified that she had not told Dr. Evans that

she was unable to function at work but rather that was Dr. Evans’s
finding.

Ex. No. 2 at 180.

11

45.

Also on March 5, 2013, Dr. Evans provided a certification

of health care provider for FMLA leave for Plaintiff stating that
Plaintiff’s disability began on February 4, 2013, was expected to
last six months, stating that Plaintiff “had numerous appointments
in the past for mood disorder before this acute flare,” noting
again that Plaintiff had a psychiatric appointment on March 14,
2013, that Plaintiff was unable to perform her job, that she was
“temporarily and totally incapacitated,” that she suffered from
“severe depression; frequent crying spells; insomnia, fatigue;
unable

to

function

at

work,”

and

anticipating

complete

incapacitation through July 31, 2013, during which time she was to
be excused from work.
46.

Ex. No. 26.

On March 12, 2013, Plaintiff provided a Statement of

Claim for Short Term Disability Benefits describing her disability
as “severe depression due to too many stressful things to deal with
at once[:] divorce, nephew passing away, health deteriorating,
foundation on house cracked, husband has child abuse against [her
6-year-old] son, 2 animals died.”
47.

Ex. No. 24.

On April 22, 2013, Dr. Evans provided an attending

physician statement for Plaintiff’s long-term disability insurance
application to Metropolitan Life Insurance Company (hereinafter,
“MetLife”), in which she stated that Plaintiff was diagnosed with
depression, anxiety, bipolar disorder, ADHD, and arthritis, causing
frequent crying episodes, not sleeping, inability to concentrate,

12

and fatigue; noting “recent exacerbation of symptoms – deficient
social situation” and “further medication adjustment and work with
counselor and psychiatrist” was recommended.

Dr. Evans wrote that

Plaintiff was unable to engage in stress situations, that her
husband had left her and that her son had significant behavioral
issues.

Dr. Evans wrote that Plaintiff could work zero hours per

day and was unable to perform her job duties due to “balance off –
hands weakening – major chronic fatigue.”

Where the form asked if

Dr. Evans expected significant improvement in any area, she wrote
“No.”

Ex. No. 27.
48.

On May 8, 2013, Dr. Evans provided a note indicating that

Plaintiff was to remain on FMLA leave due “to her depression.” Ex.
No. 13.
49.

On June 18, 2013, Dr. Seaman executed an “attending

physician’s

statement”

for

MetLife

in

support

of

Plaintiff’s

application for long-term disability benefits stating that she
suffered from osteoarthritis, mixed connective tissue disease, and
carpal tunnel syndrome, that she was able to work less than one
hour per day, and that he did not suggest that she return to work
in her then-present occupation.
50.

Ex. No. 28.

On June 24, 2013, Dr. Evans noted that Plaintiff had

contacted her requesting a letter be faxed to Defendant indicating
that she “is still off due to her illness of Lupus in her hands and
her mental illness,” and in response she provided a note to Silgan

13

recertifying
problems.”
51.

Plaintiff

for

FMLA

for

“lupus

and

psychological

Ex. No. 13.
On July 3, 2013, Plaintiff completed an initial interview

with MetLife, the long-term disability insurance provider from whom
she was at that time seeking benefits, and during that interview
indicated that she was no longer taking her medications for
depression because they were making her more depressed, that she
was instead attending church five days per week to treat her
depression, that her lupus “is so bad her hands are in the claw
position and her fingertips hurt so bad they’re thinking of
removing them,” that she could no longer wash her hair, that she
could not do much housework and that she did not care much to RTW
(“return to work”).
52.

Ex. No. 29.

Dr. Evans’s notes from August 13, 2013 indicate that

Plaintiff had contacted her seeking a release to return to work and
that she had declined because Plaintiff needed “a note from her
psychiatrist as she is off for those reasons.”
53.

Ex. No. 13.

Plaintiff testified that she requested a release to

return to work from Dr. Seaman’s office and spoke to his nurse,
stating “she said that he was on vacation out of the country but
that she couldn’t see why she couldn’t send me the release.”
No. 2 at 269.

14

Ex.

54.

Dr. Seaman’s records and affidavit testimony show that,

on August 15, 2013, Plaintiff contacted his office and requested a
release to return to work on “light duty.”
55.

Ex. No. 28.

Dr. Seaman’s records and affidavit testimony show that he

did not write a release for Plaintiff, but rather that, on or about
August 20, 2013, he re-transmitted to her the MetLife form he had
signed on June 18, 2013, stating that she was unable to work except
for

less

than

restriction.
56.

one

hour

per

day

and

to

extensive

Ex. No. 28.

Dr. Seaman’s records and affidavit testimony reflect that

he never communicated directly with Silgan.
57.

subject

Ex. No. 28.

Plaintiff testified that she stopped seeing Dr. Seaman

because she did not agree with what he was saying in that he had
stated that she was “100 percent totally disabled.”

Ex. No. 2, at

7-38; Ex. No. 28.
58.

Plaintiff did not provide a release from a physician

stating that her restrictions were lifted and that she could return
to work by July 31, 2013, the anticipated date of return indicated
in her FMLA certification of March 5, 2013.
59.

Ex. No. 26; Ex. No. 1.

Plaintiff did not provide a release from a physician

stating that her restrictions were lifted and that she could return
to work by August 1, 2013, the anticipated date of return indicated
in her FMLA certification of March 5, 2013.

15

Ex. No. 25; Ex. No. 1.

60.

Plaintiff testified that she is aware that, in order to

have returned to work at the end of the short-term disability leave
in August 2013, she needed to provide a physician’s release stating
that she was able to return.
61.

Ex. No. 2 at 194.

Silgan never received a physician’s release stating that

Plaintiff was able to return to work from the leave of absence she
began on February 19, 2013.
62.
stating

Ex. No. 1.

Plaintiff was aware that if she did not present a release
that

she

was

able

to

return

to

work,

she

would

terminated pursuant to Silgan’s short-term disability policy.

be
Ex.

No. 13.
63.

Because Plaintiff had not returned by the end of her

short-term disability leave, because her leave had exceeded the 26
weeks allowed by Silgan’s short-term disability policy, and because
she had not requested any additional accommodation, Plaintiff’s
employment was terminated on August 17, 2013, consistent with
Silgan’s policy.
64.

Ex. No. 4; Ex. No. 30.

At the time of Plaintiff’s termination, Silgan believed,

based upon the information provided by Plaintiff’s physicians, that
she was totally and completely disabled, entirely unable to perform
the essential functions of her position, and unlikely ever to
improve to the point where she would be able to do so.
Ex. No. 13; Ex. No. 31.

16

Ex. No. 1;

65.

Plaintiff testified that she did not seek additional

leave as an accommodation.
66.

Ex. No. 2, at 252.

Plaintiff testified that Silgan “gave [her] a reasonable

accommodation but wouldn’t let [her] come back.”

Ex. No. 2, at

244, 246.
67.

Plaintiff

explained

the

inconsistency

between

her

testimonial statements that she did not want additional leave and
the

allegations

in

her

Complaint

stating

that

she

did

want

additional leave by stating that an attorney drafted the Complaint
and that “all [she] did was sign it.”

Ex. No. 2, at 240-41; Ex.

No. 32.
68.

Plaintiff testified that she also was not seeking any

other accommodations at that time.
69.

Ex. No. 2, at 247.

Plaintiff testified that the protected activity that

forms the basis of her retaliation claim was taking a medical leave
of absence.
70.

Ex. No. 2, at 256.

On September 19, 2013, Dr. Seaman noted that Plaintiff

suffered from “advanced degenerative changes of DIP and PIP joints
and toes and that for that reasons [he] would find her totally and
permanently disabled.”
71.

Ex. No. 31.

Plaintiff testified that her disability was depression

but that it was not a permanent disability.
72.

Ex. No. 2, at 252-53.

Plaintiff testified that she had frequently discontinued

psychiatric medications but that she intended at the time of her

17

testimony to obtain prescriptions for psychiatric medication and
remain

in

compliance

medications.
73.

with

physician’s

orders

regarding

said

Ex. No. 2, at 62-63.

In a phone conversation with MetLife, Dr. Evans stated

that, while Plaintiff might be able physically to work, “her
psychiatric problems are a bigger factor than physical conditions.”
Ex. No. 29.
74.

Dr. Seaman wrote to MetLife as late as February 21, 2014,

in response to a finding by Bradley Hudson, physical therapist,
subsequently adopted by MetLife, that Plaintiff could work, upon
the findings of which Dr. Seaman hand-wrote comments contradicting
those findings, including his medical opinion that Plaintiff could
walk only occasionally and intermittently, could only “very rarely”
use her hands, could only lift ten pounds frequently or twenty
occasionally, and added that her medications were likely causing
side effects including fatigue.
75.

Ex. No. 29.

Plaintiff testified that she is currently undergoing

psychiatric treatment at “Northwood” for conditions including
“severe anxiety and ADHD.”
76.

Plaintiff testified that, after her termination, she

began using street drugs.
77.

Ex. No. 2, at 28.

Ex. No. 2, at 116.

Plaintiff testified that she has recently lost other

employment because of issues including praying for a coworker “in
tongues” under her breath resulting in an employer believing she

18

was talking to herself; Plaintiff testified that she engages in
this behavior “all the time.”

Ex. No. 2, at 23.

ECF No. 101-1.
B.

The Defendant’s Renewed Motion for Summary Judgment
In its renewed motion for summary judgment, the defendant

argues that the plaintiff cannot establish a prima facie case of
failure to accommodate. In support of this argument, the defendant
asserts that the plaintiff was not a qualified person with a
disability in that she could not perform her job with or without a
reasonable accommodation.

Further, the defendant claims that the

plaintiff admitted that she neither requested nor desired an
accommodation and that no reasonable accommodation existed at the
time of her termination.
The defendant next argues that the plaintiff cannot establish
a prima facie case of disability discrimination because she was not
a qualified individual with a disability and cannot establish that,
“but for” the disability, she would not have been terminated.

The

defendant asserts that the disability was not the but for cause of
termination because the plaintiff’s termination was the result of
her exhausting her short-term disability leave and being unable to
return to work as evidenced by her not obtaining a release from her
physicians.
plaintiff

Additionally, the defendant claims that, even if the

could

establish

a

prima

facie

case

of

disability

discrimination, the burden shifts to the defendant to articulate a

19

legitimate, non-discriminatory reason for her discharge.
defendant

argues

discriminatory

that

reasons

it
that

has

articulated

the

plaintiff

The

legitimate,
cannot

non-

show

were

pretextual because the plaintiff was unable to return to work in
any capacity.
Lastly,

the

defendant

argues

that

the

plaintiff

establish a prima facie case of retaliatory discharge.

cannot

In support

of this argument, the defendant asserts that the plaintiff did not
engage in protected activity, her termination was not sufficiently
near in time to her allegedly protected activity to support an
inference of retaliation, and her engagement in allegedly protected
activity was not the but for cause of her termination.

The

defendant states that taking a medical leave of absence is not a
protected activity under the WVHRA.

Further, the defendant claims

that the plaintiff’s termination was more than six months after she
began her final leave of absence and after having been on leave for
over one year except for eight days of work.

Additionally, the

defendant argues that, even if the plaintiff could establish a
prima facie case of retaliatory discharge, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for
the plaintiff’s discharge. Again, the defendant argues that it has
articulated

legitimate,

non-discriminatory

plaintiff cannot show were pretextual.

reasons

that

the

The defendant states that

it has established that the plaintiff was completely restricted

20

from work of any kind at the time of her termination.

The

defendant claims that the plaintiff was terminated in accordance
with the defendant’s policy when she was unable to return to work
at the conclusion of her leave of absence.
The plaintiff filed a Roseboro response to the defendant’s
renewed

motion

for

summary

judgment.

In

her

response,

the

plaintiff argues that she took several measures to try to return to
work, but all her efforts failed because the defendant never had
any intention of letting her return to work.

The plaintiff also

states that her former boss at Silgan, who was with the company for
over 30 years, is willing to testify that the defendant held a
meeting specifically about the plaintiff and the defendant’s belief
that she was a liability due to her medical conditions.

The

plaintiff further states that she could perform her job with no
problem at the time of her termination and that the medical
specialist she was sent to agreed and informed the defendant of
that medical opinion through a report.
The

defendant

then

replied

to

the

plaintiff’s

Roseboro

response. The defendant argues that the plaintiff’s response fails
to address the defendant’s legal arguments and that it is composed
of improper, irrelevant, and inaccurate statements.

The defendant

further asserts that the plaintiff has failed to identify any
evidence that would establish that there is a genuine question
regarding any material fact as to any of the arguments raised in

21

the defendant’s renewed motion for summary judgment. The defendant
also points out that the plaintiff claims she could have worked at
the time of her termination but fails to identify any valid and
admissible evidence supporting the contention.
C.

The Defendant’s Motion to Strike Portions of the Plaintiff’s

Response
In its motion to strike portions of the plaintiff’s response,
the defendant argues that, pursuant to Federal Rule of Civil
Procedure 56(c) and (e), the Court should strike portions of the
plaintiff’s Roseboro response to the defendant’s renewed motion for
summary judgment.

The defendant states that Rule 56(c) requires

the plaintiff to support an assertion that a fact is genuinely
disputed by citing to particular parts of materials in the record.
The defendant argues that, in portions of the plaintiff’s response,
the

plaintiff

does

not

admissible evidence.
56(e),

the

Court

support

her

assertions

by

citing

to

The defendant also asserts that, under Rule

may

consider

the

defendant’s

statement

of

uncontroverted material facts undisputed for the purpose of the
summary judgment motion because the plaintiff did not properly
support

her

own

assertions

defendant’s assertions.

of

fact

or

properly

address

the

The plaintiff did not file a response to

the defendant’s motion to strike portions of the plaintiff’s
response.

22

III.

Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

“The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
256.

“The

inquiry

performed

is

the

Anderson, 477 U.S. at
threshold

inquiry

of

determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be

23

resolved only by a finder of fact because they may reasonably be
resolved

in

favor

of

either

party.”

Id.

at

250;

see

also

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)
(“Summary judgment ‘should be granted only in those cases where it
is perfectly clear that no issue of fact is involved and inquiry
into the facts is not desirable to clarify the application of the
law.’” (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
IV.

Discussion

As stated earlier, the defendant’s renewed motion for summary
judgment and motion to strike portions of the plaintiff’s response
to its renewed motion for summary judgment are at issue in this
civil action.

This Court has carefully reviewed the parties’

briefing of the motions and, because the plaintiff is pro se, this

24

Court

has

liberally

construed

the

plaintiff’s

pleadings.

See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se
complaints

to

less

drafted by lawyers).

stringent

standards

than

formal

pleadings

The two motions are discussed below in the

order presented.
A.

The Defendant’s Renewed Motion for Summary Judgment
As a preliminary matter, the Court notes that, while the pro

se plaintiff’s pleadings were liberally construed, her pleadings
are largely arguments unsupported by any exhibits, and several of
the

objections

contained

in

her

Roseboro

response

to

the

defendant’s renewed motion for summary judgment are hearsay.

Rule

56(e)

mere

prevents

this

Court

from

being

able

to

consider

arguments and hearsay in ruling on a motion for summary judgment.
This issue will be further addressed in the discussion of the
defendant’s motion to strike portions of the plaintiff’s response.
Accordingly, the Court has relied on only the specific facts set
forth by the parties.

For the reasons set forth below, this Court

grants the defendant’s renewed motion for summary judgment.
1.

Failure to Accommodate Disability

To show a prima face case of failure to accommodate under the
WVHRA, the plaintiff must show (1) she was a qualified person with
a disability; (2) the defendant was aware of her disability; (3)
she required an accommodation in order to perform the essential
functions of her position; (4) a reasonable accommodation existed

25

that met her needs; (5) the defendant knew or should have known of
her need and of the accommodation; and (6) the defendant failed to
provide the accommodation.

Haynes v. Rhone-Poulenc, Inc., 521

S.E.2d 331, 332, 337 (W. Va. 1999) (citing Skaggs v. Elk Run Coal
Co., 479 S.E.2d 561, 575 (W. Va. 1996)).
The plaintiff cannot make this prima facie case because she
was not a qualified person with a disability.

See Ranger Fuel

Corp. v. West Virginia Human Rights Comm’n, 376 S.E.2d 154, 159-60
(W. Va. 1988) (“In order to determine if an individual is ‘able and
competent,’

the

employer

must

consider

if,

with

or

without

reasonable accommodations, . . . the individual is currently
capable of performing the work . . . .”); Hosaflook v. Consol. Coal
Co., 497 S.E.2d 174, 179-80 (W. Va. 1997) (defining a qualified
person

with

a

disability

as

‘an

individual

who

is

able

and

competent, with reasonable accommodation, to perform the essential
functions of the job in question.” (citing 77 C.F.R. § 1-4.2
(1991))). She was not a qualified person with a disability because
she could not perform the essential functions of her job with or
without a reasonable accommodation.
completely restricted from work.
and 101-33.

Rather, the plaintiff was

ECF Nos. 101-28, 101-29, 101-30,

Additionally, the plaintiff did not request an

extended leave of absence at or before the expiration of the sixmonth

short-term

disability

leave.

ECF

No.

101-4

at

64.

Furthermore, the plaintiff received more than a six-month leave of

26

absence

in

total,

and,

given

that

she

never

identified

an

anticipated return date, additional leave beyond that point would
not have been a reasonable accommodation.

Thus, the plaintiff has

failed to show a prima facie case of failure to accommodate, and
summary judgment should be granted to the defendant on this claim.
2.

Discrimination on the Basis of Disability

To show a prima facie case of disability discrimination based
on disparate treatment under West Virginia law, the plaintiff must
show (1) she belongs to a protected classification; (2) the
employer made an adverse decision regarding her employment; and (3)
but for her protected status, the adverse decision would not have
been made.

Conaway v. E. Associated Coal Corp., 358 S.E.2d 423,

425 (W. Va. 1986).

If the plaintiff makes this prima facie case,

the burden shifts to the defendant to articulate a legitimate, nondiscriminatory, non-retaliatory reason for her discharge. Moore v.
Consol. Coal Co., 567 S.E.2d 661, 666-67 (W. Va. 2002).

If the

defendant satisfies this burden, the plaintiff then has the burden
to prove by a preponderance of the evidence that the reasons
offered

by

the

discrimination.

defendant

are

merely

pretext

for

unlawful

Id.

Like with the failure to accommodate claim, the plaintiff also
cannot make a prima facie case on this claim because she is not a
qualified person with a disability.

Additionally, the plaintiff

cannot establish that her disability was the but for cause of her

27

termination.

The

plaintiff

was

terminated

pursuant

to

the

defendant’s policy because she exhausted her short-term disability
leave and was not able to obtain a release from her physicians in
order to return to work.

ECF Nos. 101-6 and 101-32.

The plaintiff

has not offered any evidence from which a reasonable trier of fact
could determine that her disability status was the but for reason
of her termination. Thus, the plaintiff has failed to show a prima
facie case of discrimination on the basis of disability, and
summary judgment should also be granted to the defendant on this
claim.
3.

Retaliatory Discharge

To show a prima facie case of retaliatory discharge under the
WVHRA, the plaintiff must show (1) she engaged in protected
activity; (2) the defendant was aware of the protected activity;
(3) she was subsequently discharged; and (4) her discharge followed
her engagement in protected activities within such a period of time
that

the

Court

can

infer

retaliatory

motivation.

DeFeliceCare, Inc., 700 S.E.2d 183, 193 (W. Va. 2010).

Roth

v.

Like with

the discrimination on the basis of disability claim, if the
plaintiff makes this prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory, nonretaliatory reason for her discharge.

Young v. Bellofram Corp.,

705 S.E.2d 560, 565-66 (W. Va. 2010) (overruled on other grounds)
(citing Shepardstown Volunteer Fire Dep’t v. State ex rel. State of

28

W. Va. Human Rights Comm’n, 309 S.E.2d 342, 352 (W. Va. 1983)).
Also like with the discrimination on the basis of disability claim,
if the defendant satisfies this burden, the plaintiff then has the
burden to prove by a preponderance of the evidence that the reasons
offered

by

the

discrimination.

defendant

are

merely

pretext

for

unlawful

Id.

The plaintiff has failed to make a prima facie case of
retaliatory discrimination. The plaintiff cannot satisfy the first
requirement because she has not engaged in protected activity. See
Roth, 700 S.E.2d at 193 (“‘Protected activity’ under the [WVHRA]
includes opposition to a practice that the plaintiff reasonably and
in good faith believes violates the provisions of the [WVHRA].”)
The plaintiff alleges that her protected activity was taking a
medical leave of absence (ECF No. 101-4 at 65), but taking a
medical leave of absence is not protected activity under the WVHRA.
Furthermore,
termination

was

the

plaintiff

sufficiently

also

near

to

cannot
her

show

that

engagement

in

her
the

allegedly protected activity to support a reasonable inference of
retaliation.

The plaintiff was terminated on August 17, 2013,

which was over six months after she began her final leave of
absence and after having been on leave for over one year except for
eight days of work.

ECF Nos. 101-26 and 101-32.

The plaintiff

argues that Dr. Evans’s revocation of her prior release was a
result of intimidation by the defendant, but the evidence shows

29

that the revocation was a result of Dr. Evans’s concern for her
“getting hurt or hurting someone.”
cannot

reasonably

infer

that

Dr.

ECF No. 101-23.
Evans

was

The Court

intimidated

into

revoking the plaintiff’s release from this evidence alone, and the
plaintiff does not offer any other evidence in support of the
allegation.

Thus, the plaintiff has failed to show a prima facie

case of retaliatory discharge, and summary judgment should be
granted to the defendant on this claim as well.
Lastly, even if the plaintiff did show a prima facie case of
discrimination on the basis of disability or retaliatory discharge,
the plaintiff’s claims still fail.

The claims fail because the

defendant has articulated legitimate, non-discriminatory, nonretaliatory reasons for her termination, which the plaintiff cannot
show were pretextual.

The defendant has established that the

plaintiff was completely restricted from work at the time of her
termination, had exhausted her short-term disability leave, and was
unable to return to work.

The defendant further established that

it

terminate

was

its

policy

to

an

employee

under

those

circumstances and that the plaintiff was aware of that policy. ECF
No. 101-15.

The plaintiff has not offered any evidence to show

that the defendant’s articulated reasons for terminating her were
pretextual.

30

B.

The Defendant’s Motion to Strike Portions of the Plaintiff’s

Response
Although the plaintiff did not respond to the defendant’s
motion to strike portions of her Roseboro response, the Court
nonetheless decided this motion on the merits rather than by
default.

Pursuant to Rules 56(c) and (e), the Court must strike

the portions of the plaintiff’s Roseboro response objected to by
the defendant.

Rule 56(c) requires the plaintiff to support an

assertion that a fact is genuinely disputed by citing to particular
parts of materials in the record.

In the portions of the response

that the defendant objects to, the plaintiff does not support her
assertions by citing to admissible evidence.

Additionally, under

Rule 56(e), the defendant is correct that the Court may consider
the

defendant’s

statement

of

uncontroverted

material

facts

undisputed for the purpose of the summary judgment motion because
the plaintiff did not properly support her own assertions of fact
or properly address the defendant’s assertions.

Accordingly, the

Court grants the defendant’s motion to strike portions of the
plaintiff’s Roseboro response.
V.

Conclusion

For the reasons set forth above, the defendant’s renewed
motion for summary judgment (ECF No. 101) and the defendant’s
motion to strike portions of the plaintiff’s response (ECF No. 108)

31

are hereby GRANTED.

It is further ORDERED that this civil action

be DISMISSED and STRICKEN from the active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
she is advised that she must file a notice of appeal with the Clerk
of this Court within 30 days after the date that the judgment order
in this case is entered.

See Fed. R. App. P. 4(a)(1).

IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

May 8, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

32