United States District Court, N.D. West Virginia
EDNA J. TULLIUS, Plaintiff,
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
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se 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.
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.
The Defendant's Statement of Uncontroverted Material
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Beginning in March 2010, Plaintiff was placed under the care
of Dr. Matthew Wood for extreme depression and anxiety. Ex.
No. 2, at 62.
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.
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.
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.
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.
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.
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.
August 25, 2011, Dr. Goodwin release Plaintiff to return to
full duty on August 31, 2011. Ex. No. 12.
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.
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.
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.
July 30, 2012, after seeing Plaintiff, Dr. Evans noted that
Plaintiff continued to have “a lot of anxiety.”
Ex. No. 13.
August 1, 2012, Plaintiff began a leave of absence. Ex. No.
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.
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.
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.
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.
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.
November 14, 2012: Plaintiff followed up with Dr. Evans who
noted diagnoses of anxiety, depression, and bipolar disorder.
Records of Dr. Evans.
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 ...