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Doe v. Mylan Pharmaceuticals, Inc.

United States District Court, N.D. West Virginia

October 13, 2017

JOHN DOE, Plaintiff,



         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.


         Mylan is a manufacturer of generic pharmaceutical products. On or around June 18, 2017, Mylan hired Doe as a “Tablet Press 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 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 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).

         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, 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 ...

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