Burbach v. Arconic Corp.

561 F.Supp.3d 508

Daniel Joseph BURBACH Jr., Plaintiff,

v.ARCONIC CORPORATION, Howmet Aerospace Inc., Defendants,

2:20-CV-00723-CRE

United States District Court, W.D. Pennsylvania, Pittsburgh.

Signed September 22, 2021

Samuel J. Cordes, Rothman Gordon, P.C., Pittsburgh, PA, for Plaintiff.

Alexandra Farone, Molly E. Meacham, Babst, Calland, Clements and Zomnir, P.C., Brian D. Lipkin, Houston Harbaugh, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION ¹

CYNTHIA REED EDDY, Chief United States Magistrate Judge.

I. INTRODUCTION

This civil action was initiated by Plaintiff Daniel Joseph Burbach, Jr. ("Plaintiff"), a former employee of Defendants Arconic Corporation and Howmet Aerospace, Inc. (collectively "Defendants") alleging violations of the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA") and the Americans with Disabilities Act, 42 U.S.C. § 2000e, et seq. ("ADA"). This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

Presently for consideration is Defendants’ motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 28).

For the reasons that follow, Defendants’ motion to dismiss is denied.

II. BACKGROUND

Plaintiff is a licensed attorney and was employed by Arconic, Inc. from September 2016 through March 31, 2020. Arconic split into two companies on April 1, 2020 – Howmet Aerospace, Inc. f/k/a Arconic Inc. and a spinoff company, Arconic Corporation. Plaintiff became employed by the spinoff company, Arconic Corporation as Assistant General Counsel. Plaintiff alleges that Arconic Corporation is his joint employer with Howmet Aerospace, Inc. Plaintiff received high performance ratings and was offered a promotion upon the company separation. During February 2020, Diana Toman was hired by Arconic Inc. as the Executive Vice President and Chief Legal Officer of Arconic Corporation effective April 1, 2020, the day of the spin-off. From February 2020 until April 1, 2020, Plaintiff worked for both Arconic Corporation and Howmet. Defendants slated Plaintiff to relocate to its Pittsburgh, Pennsylvania headquarters as soon as the COVID-19 pandemic effects subsided.

On March 13, 2020, Arconic Inc. closed its New York City office due to the COVID-19 pandemic and a few days later closed its Pittsburgh, Pennsylvania headquarters and directed all employees to work remotely for the remainder of the crisis. On that same day, Plaintiff developed a mild sore throat. Despite being unwell, Plaintiff continued to work remotely each day until the early hours of the next day and became exhausted. Because of his concerns for his health and the health of his spouse and children, Plaintiff relocated his family to a relative's vacant apartment in Miami, Florida. Plaintiff alerted his supervisors that he was temporarily relocating and that he would be off from work and offline for large portions of March 18, 2020 and March 19, 2020 while he and his family drove to Florida. Plaintiff alleges that his supervisors, including Ms. Toman, approved his request for two days off and told him they were concerned with "safety first." Despite having his time-off request approved, Plaintiff attended to work emails while his spouse drove and logged in and worked remotely at night throughout the next two days.

During this time, Plaintiff continued to feel sick and by March 20, 2020, his health began to deteriorate rapidly. By mid-day, he developed a 102-degree fever, was completely exhausted and experienced great difficulty breathing. Despite these symptoms, Plaintiff completed as much work as possible and at approximately 5:00 p.m. sought treatment at a Miami hospital Emergency Room where he was diagnosed with COVID-19 caused by the coronavirus. The Emergency Room physician placed Plaintiff on bed rest and recommended that he avoid stress until his breathing issues subsided.

Later that day, Plaintiff notified his supervisors Kate Ramundo, Margaret Lam and Diana Toman of his diagnosis and the physician's recommendation to rest and avoid stress until his breathing issues subsided. On March 23, 2020, Plaintiff notified Ms. Lam and Ms. Toman that his illness had worsened, and he requested time away from work to recover. Plaintiff alleges that despite his request, he was not notified of his FMLA rights, obligations, or eligibility to take FMLA leave. Plaintiff's inability to work full time caused challenges to Defendants because his group was thinly staffed and severely overworked due to the upcoming spin-off. Ms. Toman claimed it was difficult to keep up with the last-minute separation-related tasks and blamed this on among other things Plaintiff's need to recover from COVID-19. On or about March 27, 2020, Plaintiff's breathing difficulties and other symptoms subsided somewhat, and his physician informed him that he would be cleared to leave quarantine if he remained symptom free for another 72 hours.

Plaintiff alleges that despite suffering from a serious health condition between March 20, 2020 and April 3, 2020, he was required to perform work while on medical leave. He alleges that Ms. Toman text-messaged, emailed and telephoned Plaintiff frequently and often to question him about work related matters and required him to prepare documents via BoardVantage, an online portal used by Defendants’ Board of Directors. During this time, Plaintiff was designated as the point person on Defendants’ S-8 registration statements that were filed March 30 and April 1, 2020. Between March 28 and March 30, 2020, Ms. Toman required Plaintiff to work remotely full time to catch up with work missed during the time he was still on medical leave. During this same time, Plaintiff learned that he and his family would not be able to stay at the Miami apartment and on or about March 30-31, 2020, Plaintiff's physicians in Miami advised that he not return to living in New York City for the next few months because of the prevalence of coronavirus contraction, the lack of available health care facilities and the chance of reinfection. Plaintiff decided to move his family to his spouse's home in Slovenia for the remainder of the period he was required to work remotely. He informed Ms. Toman of his intention and requested as an accommodation for his health condition that he be permitted to work remotely from Slovenia. His request was approved, including Plaintiff's request for short term leave of 2-3 days to recover from COVID-19 and travel to Slovenia.

On April 1, 2020, Arconic Inc. and Arconic Corporation separated. During the period from April 1 through April 2, Plaintiff and his family drove back to New York City and during the drive, Plaintiff joined meetings, made telephone calls, attended to work and worked each night well past midnight. On April 3, 2020, Ms. Toman telephoned Plaintiff at 11:00 a.m. and informed him that she changed her mind and that the company could not accommodate him working from Europe even though all corporate employees were directed to work from home into May 2020. Plaintiff informed Ms. Toman that he believed that the company's refusal to accommodate him was because he was impaired by COVID-19 during a difficult time for the company and that because of his impairment he was not able to devote his usual time to work. Ms. Toman responded that she made every effort to support Plaintiff during his illness and that she only requested that Plaintiff create a list during his leave which she received from Plaintiff two weeks late. Shortly thereafter, Ms. Toman fired Plaintiff because the company could not accommodate his request to temporarily work remotely outside of the continental United States. Plaintiff claims that his firing was pretext for retaliation for requesting and taking leave under the FMLA and in retaliation for requesting a reasonable accommodation for his impairment.

Plaintiff asserts the following claims against Defendants: (1) interference with his FMLA rights for requiring him to perform work while on medical leave and not notifying Plaintiff of his eligibility to take FMLA leave (Count I); FMLA retaliation for terminating Plaintiff's employment for taking FMLA-eligible leave (Count II); failure to accommodate in violation of the ADA for failing to allow Plaintiff to work from Slovenia (Count III); discrimination in violation of the ADA for firing Plaintiff for requesting an accommodation to work from Slovenia (Count IV); and retaliation in violation of the ADA for firing Plaintiff due to contracting COVID-19 and requesting a reasonable accommodation (Count V² ).

Defendants now move to dismiss all claims against them.

III. STANDARD OF REVIEW

The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside , 578 F.3d 203, 211 (3d Cir. 2009). This " ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary elements." Phillips v. Cty. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Yet the court need not accept as true "unsupported conclusions and...