Virginia Lawyers Weekly VA Lawyers Weekly
Where an electrician alleged that he was terminated by Fairfax County because of his refusal to comply with the county’s COVID-19 policy, his disability discrimination and retaliation claims were dismissed. It was implausible that the county regarded him as disabled simply because he was unvaccinated.
Background
Jacob Austin Schneider alleges that the County of Fairfax violated the Americans with Disabilities Act, or ADA, when it terminated him from his position as an industrial electrician due to his refusal to comply with the county’s COVID-19 policy. Fairfax has filed a motion to dismiss.
Discrimination
To state a claim for disability discrimination under the ADA, a complaint must allege sufficient facts to show that a plaintiff (1) “has a disability, (2) “is a ‘qualified individual’ for the employment in question” and (3) that his employer “discharged [him] (or took other adverse employment action) because of [his] disability.” The amended complaint alleges that the defendant violated the ADA by regarding the plaintiff as being disabled and making a record of plaintiffs having a disability by classifying him as unvaccinated.
The amended complaint contends that the county’s policy regarded unvaccinated individuals “as if they carried [COVID-19] or ‘as if’ they had an impaired or suppressed immune system that made them prone to contracting ‘Covid-19.’” This theory of liability has been rejected by multiple courts in this circuit and around the country.
The amended complaint contains no plausible factual allegations to suggest that the defendant regarded Schneider as having a physical or mental impairment. Instead, the alleged facts show that plaintiff was subject to a generally applicable policy which required him, as well as all other county employees, to disclose their vaccination status and to provide evidence of weekly testing if unvaccinated, all of which plaintiff refused to do. Plaintiff’s refusal to follow his employer’s requirement to report his vaccination status which led the county to treat him as unvaccinated “is not the same as believing [he] has a physical or mental impairment.”
For similar reasons, the amended complaint has failed to allege that the county created a record of plaintiff having a disability. When alleging an ADA violation based on a record of impairment theory, a complaint must allege facts supporting a plausible claim that a plaintiff has “a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” The amended complaint does not allege that plaintiff has a “history” of any purported impairment.
Instead, it alleges that plaintiff was misclassified as having a disability when defendant classified him as an “‘unvaccinated’ employee” which plaintiff construes as equivalent to classifying him as “impaired by a contagious disease and … by a suppressed or weak immune system or respiratory system that makes [him] vulnerable to ‘Covid-19.’” Again, plaintiff’s argument rests on the implausible theory that being labeled as “unvaccinated” means that defendant assumed he had COVID-19 or that he had an impaired immune system. For these reasons, plaintiff’s amended complaint fails to allege a plausible claim of disability discrimination in violation of the ADA, and Count One will be dismissed.
Retaliation
To state a claim for ADA retaliation, a complaint must allege “(1) that [a plaintiff] engaged in protected conduct; (2) suffered an adverse action, and (3) that a causal link exists between the protected conduct and the adverse action.” Because a plaintiff need not show that he or she is disabled within the meaning of the ADA to assert a claim for retaliation, the amended complaint’s failure to allege that Schneider was disabled does not bar his retaliation claim.
Because the COVID-19 policy was in place before any conduct plaintiff alleges to be protected activity occurred and because the policy clearly stated that dismissal could be a consequence for non-compliance, it is implausible to suggest that Schneider’s termination was a result of any of his protected activity rather than a result of his decision not to comply with the policy. Moreover, even though the county’s policy clearly indicated that Schneider could be terminated for failing to comply with its directives, the defendant gave Schneider multiple opportunities to come into compliance with the policy.
Despite the county’s efforts, plaintiff was terminated for his continued refusal to comply with the county’s COVID-19 policy and the directions of his supervisor. Because the amended complaint has failed to allege a plausible causal connection between any of Schneider’s protected conduct and the adverse actions taken against him, it has failed to state a claim for retaliation under the ADA. Therefore, Count Two will be dismissed.
Defendant’s motion to dismiss granted.
Schneider v. County of Fairfax, Case No. 1:22-cv-871, March 2, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-104. 15 pp.
