Summary judgement denied in ADA case against Mylan

By Kyla Asbury | Nov 20, 2017

Judge denies motion for summary judgment in Americans With Disabilities Act lawsuit against Mylan

CLARKSBURG – A federal judge denied a motion for summary judgment in a lawsuit against Mylan Pharmaceuticals that alleged it violated the Americans With Disabilities Act and the West Virginia Human Rights Act.

Mylan was seeking summary judgment on both John Doe’s ADA and WVHRA claims, according to the Oct. 13 opinion and order.

“Mylan does not dispute that Doe has a disability or that Mylan had notice of it,” District Judge Irene Keeley wrote. “Rather, Mylan argues that there were times when Doe could not perform the essential functions of his job with reasonable accommodation.”

Specifically, Mylan argued 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 Collective Bargaining Agreement.

“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,” Keeley wrote. “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.”

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, according to the order.

“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,” she wrote. “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 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.

“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,” Keeley wrote. “As discussed…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.”

Doe filed the job discrimination lawsuit against Mylan in 2016 in the U.S. District Court for the Northern District of West Virginia.

Doe is represented by Samuel B. Petsonk and Lydia C. Milnes of Mountain State Justice.

Mylan is represented by Theodore A. Schroeder and Brittany A. Fink of Littler Mendelson.

U.S. District Court for the Northern District of West Virginia case number: 1L16-cv-00072

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