United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
MYLAN'S MOTION FOR SUMMARY JUDGMENT [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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).
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).
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).
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).
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.
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).
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).
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).
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