Doe v. Mylan Pharmaceuticals, Inc.

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

DOE v. MYLAN PHARMACEUTICALS, INC. 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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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 the position of Tool Room

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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. 59-

3 & 59-5 at 3). The Tool Room Attendant position is filled

according to Section 12.4 of the CBA, which provides that

seniority, experience, work history, and other factors 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 19-

20). He collected these benefits for approximately five months,

until returning to work in September of 2015 (dkt. no. 59-1 at 74-

75).

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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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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 judgment is appropriate where the “depositions,

documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, 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).

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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 non-

moving 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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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 accommodation under the ADA may include

“reassignment to a vacant position.” See 29 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 –

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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

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT

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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.

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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

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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, why, in the particular case, an exception to the

employer’s seniority policy can constitute a ‘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

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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

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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 “reasonable” under the

circumstances of this particular case.

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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 10-

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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 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