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Graphic design company can’t shake claim it fired employee for coronavirus-like illness

By Wayne D. Garris Jr., J.D.

Before COVID-19 was declared an emergency in much of the U.S., the employee became seriously ill with a respiratory disease.

A federal district court in New York denied a graphic design company’s motion to dismiss the disability discrimination, wage, and breach of contract claims of a former employee who was fired after he took several days of medical leave. The employee had requested medical leave for a respiratory illness that may have been COVID-19. He filed suit alleging that he was terminated because his employer was angry about him missing work and because he had questioned the company’s efforts to protect employees from the spread of COVID-19. In denying the employer’s motion, the court found it only offered a different version of events than the employee but, at the motion to dismiss stage, the facts as alleged in the complaint must be taken as true. Thus, the employer did not show that the employee failed to state a claim under 12(b)(6) as to any of his 11 causes of action asserted against it (Velez v. Girraphic LLC, May 10, 2021, Cronan, J.).

The employee worked as a Senior Real Time Developer for Girraphic, a graphic design company. He alleged that in January 2020, his relationship with his supervisor began to sour after he suggested that the company take measures to prevent the spread of COVID-19. The supervisor allegedly dismissed the employee’s concerns.

Medical leave. The employee became sick on his way to work one day in late February 2020 and went to his doctor. He suffered from respiratory symptoms that could have been the result of COVID-19, but he was unable to obtain a COVID-19 test. His illness caused him to miss work from February 24 through February 28, 2020, but his fiancé communicated with the employer about his condition. The employee conceded that he did not explicitly request a reasonable accommodation but argued that his request for medical leave was clearly a request for a reasonable accommodation for his disability. The employee returned to work on March 2 and requested medical leave for March 5 for a follow-up doctor’s appointment. The employee fell ill again on March 4 and missed work.

The employee alleged that his supervisor was angry with him for being ill and being away from the office due to his illness. Also, the employee continued to express his frustration over the employer’s lack of protective measures to prevent the spread of COVID-19.

Resigned or terminated? The employee returned to work on March 6, 2020, and was called in to a meeting with his supervisor and the HR manager. After this meeting, he was sent home “while the company decided what to do about his employment over the weekend.” The employee believed that he was going to be fired so after leaving the office, he sent an email to some of his colleagues stating “Goodbye Girraphic. Respect is earned, not given.” The next day, the supervisor notified the employee that the company considered his email to be a letter of resignation which had been accepted.

On March 19, after the employee left the company, the supervisor emailed the employee claiming that he had committed several acts of misconduct. Further, the employee contended that he was not paid for his final week of work; was not given the two weeks’ warning or two weeks’ severance pay, as required by his employment contract; and was not paid for his remaining unused annual leave due under his employment contract.

The employee filed suit against Girraphic and raised 11 causes of action, including five discrimination claims asserting among other things that the employer intentionally discriminated against him, failed to accommodate his disability, and retaliated against him in violation of the New York City Human Rights Law. The remaining claims alleged that the employer breached its contract with the employee and violated several wage and hour provisions of the New York Labor Law. The employer moved to dismiss or, in the alternative, for summary judgment.

Subject matter jurisdiction. The employer first argued that the court lacked federal jurisdiction because the employee could not meet the amount in controversy requirement as the enumerated damages he alleged did not meet the $75,000 threshold and he failed to plead emotional distress damages. Disagreeing, the court found the complaint explicitly stated that the employee suffered emotional distress and requested compensatory and punitive damages. Further, it is “well-settled” that a plaintiff who prevails on an NYCHRL discrimination claim “may recover compensatory damages for ‘emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,’” and that even “garden-variety” cases “generally merit $30,000.00 to $125,000.00 awards.” Thus, the employee met his burden to show federal jurisdiction.

Disability discrimination. The employee also alleged sufficient facts to state a claim for intentional discrimination. He alleged that he had a disability in the form of a serious respiratory virus that may have been COVID-19 and that the employer knew he had a disability, was angry with him for being ill and missing time from work, and terminated him for taking medical leave. The employer countered by offering its own version of the facts, claiming that the employee was punished for insubordination and poor performance. However, at the motion to dismiss stage, the employee’s alleged facts are taken as true, so the court declined to dismiss the intentional discrimination claim. The court also rejected the employer’s argument that COVID-19 should not be considered a disability for “public policy” reasons because the employer failed to show treating COVID-19 as disability would be at odds with the text of the NYCHRL.

Reasonable accommodation. The employee asserted that he requested multiple reasonable accommodations when he requested medical leave in February and for two days in March due to his illness. Further, he again alleged that the employer was angry with him and refused to engage with him in the interactive process. Again, the employer merely offered a different version of the facts to support its motion to dismiss, which the court rejected, noting that the complaint must be taken as true at the motion to dismiss stage.

The employer also argued that its motion should be granted because “COVID-19 was not yet a concern in New York City” and the governor of New York had not yet declared a state of emergency. The court rejected this argument. The employee asserted that he had a respiratory disease, which he admitted may not have been COVID-19, and he was terminated because of the disease. Thus, the employer’s arguments about COVID-19 in New York City at the time were irrelevant.

NYLL and contract claims. The employer again only offered its own version of the facts to rebut the employee’s NYLL and breach of contract claims. First, it argued that the employee was not owed notice pay under either a breach of contract theory or under the NYLL because he resigned or was terminated for cause. Second, Girraphic contended that the employee’s claim for accrued but unused vacation days must be dismissed because the number of days owed was unknown due to the employee’s “unsanctioned” work from home days. Lastly, the employer challenged the employee’s NYLL claim for failure to provide wage statements noting that the wage statements were available online. The court explained that the employer may be able to prove these facts, but at the motion to dismiss stage, taking the facts alleged in the complaint has true, the employee did not fail to state a claim under Rule 12(b)(6).