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Tullius v. Silgan Plastics Corporation

United States District Court, N.D. West Virginia

May 8, 2017

EDNA J. TULLIUS, Plaintiff,



         I. Procedural History

         The pro se[1] 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 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. Facts

         A. 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 reference to any exhibits. Those facts, adopted by the Court, are as follows:

         1. Silgan Plastics is a manufacturer of plastics in North America and operates twenty manufacturing plants in various locations across North America, including its manufacturing facility located in Triadelphia, West Virginia. Ex. No. 1.

         2. 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. Ex. No. 1.

         4. 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. Ex. No. 1.

         5. 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. Ex. No. 2, at 47-48.

         6. Plaintiff testified that her work at Silgan was dangerous, that there are risks present in working with large machines at Silgan, and that the position required that she was careful to avoid injury. Ex. No. 2, at 48-49.

         7. 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.” Ex. No. 3, at 42.

         8. 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.” Ex. No. 4.

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

         10. 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.” 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. Ex. No. 7.

         14. 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. Ex. No. 8.

         15. 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. 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. Ex. No. 10.

         17. 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. Ex. No. 11.

         18. On August 25, 2011, Dr. Goodwin release Plaintiff to return to full duty on August 31, 2011. Ex. No. 12.

         19. 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.” Ex. No. 13.

         20. 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.

         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.” Ex. No. 13.

         23. 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.” Ex. No. 15.

         25. To substantiate Plaintiff's request for leave, Dr. Seaman provided 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 Dated: August 31, 2012. Ex. No. 16.

         26. On September 11, 2012, Dr. Seaman provided a certification of health care provider for FMLA leave for Plaintiff 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.” Ex. No. 17.

         27. 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.” Ex. No. 18.

         28. 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. Ex. No. 19.

         29. November 14, 2012: Plaintiff followed up with Dr. Evans who noted diagnoses of anxiety, depression, and bipolar disorder. Records of Dr. Evans.

         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 he ...

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