Virginia Lawyers Weekly VA Lawyers Weekly
Where an unvaccinated employee alleged his employer discriminated against him because he refused to comply with its COVID-19 policy, but the evidence showed the company did not regard him as disabled, there was no record of disability and he suffered no adverse employment action, his discrimination claim was dismissed.
Background
Jonathan David Leggo alleges that his employer, M.C. Dean, violated the Americans with Disabilities Act, or ADA, by discriminating and retaliating against him on the basis of a perceived disability when he refused to comply with the M.C. Dean’s COVID-19 policy. Defendant has filed a motion to dismiss.
Discrimination
The allegation that M.C. Dean regarded Leggo as having a disability of being perpetually infected with or susceptible to COVID-19 is implausible. M.C. Dean’s COVID-19 policy was generally applicable to all employees, and the company’s decision to require all employees to attest to their vaccination status “does not plausibly reflect a determination or belief that any of its employees are disabled or impaired.”
Moreover, the documents attached to the amended complaint indicate that M.C. Dean was willing to find alternative customer sites that did not have vaccination requirements for unvaccinated employees like Leggo, undermining any purported inference that it perceived him as having a disability. For the same reasons, plaintiff’s claim that M.C. Dean had a “record of” plaintiff having a disability also fails because the factual allegations do not support any inference that M.C. Dean ever classified Leggo as disabled.
Moreover Leggo continues to work for M.C. Dean. While he alleges that he suffered an adverse action because of a two-thirds reduction of his “duties and opportunities,” as well as the decrease of the size of the team he supervises, the amended complaint does not allege that the decline in his duties and opportunities has had any negative effect on his employment with M.C. Dean or that his inability to work on projects with a vaccination requirement caused a detrimental effect on his employment. To the contrary, the amended complaint admits that Leggo’s salary has “remain[ed] constant” and the exhibits attached to the amended complaint indicate that he even received a pay raise after M.C. Dean implemented its COVID policy.
Although Leggo maintains that one of the alternative projects for unvaccinated employees involves “indoor factory assembly work” and is “robotic,” located far from his house, and he “consider[s] it a demotion,” Leggo’s mere dislike for the project and complaints about travel inconvenience are insufficient to support that he suffered adverse action.
Retaliation
Leggo contends that because he opposed M.C. Dean’s COVID-19 policy, he was prevented from working on certain job sites, isolated from other employees and his employment duties and opportunities were limited. However Leggo admits that he has suffered no impact to his salary and only speculates that these limitations “will lead to materially reducing his benefits.” Given the absence of any significant impact of his assignment limitations on his employment with M.C. Dean, it is implausible that these actions would have “dissuaded a reasonable worker from making … a charge of discrimination.”
And, moreover, there is no plausible inference of a causal connection between Leggo’s opposition to the COVID-19 policy and the limitations on his work assignments. M.C. Dean could not have assigned Leggo to projects for those commercial customers and the federal government which had strict vaccination and/or testing requirements. To the extent the amended complaint alleges that Leggo was threatened with suspension, dismissal and termination after he opposed M.C. Dean’s COVID-19 policy, such allegations are conclusory and are actually contradicted by the documents plaintiff attached to his amended complaint.
Finally, Leggo contends that he suffered adverse action because M.C. Dean continued to “impose the COVID policy” on him by harassing him with email reminders to complete the vaccine tracking form and to remind his team members to do the same, and by “coerc[ing]” him with email announcements about the changing vaccination requirements of M.C. Dean’s federal and commercial customers.
Because M.C. Dean’s COVID-19 policy was enacted before he spoke up in opposition to it, there is no plausible causal connection between his opposition to the policy and continuing imposition of the policy. To the extent the amended complaint alleges a claim for a retaliatory hostile work environment, the allegations fall far short of the requirement that hostility in a work environment be “so severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination.”
Defendant’s motion to dismiss granted.
Leggo v. M.C Dean Inc., Case No. 1:22-cv-374, Feb. 7, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-050. 15 pp.
