Whorley v. Int'l Paper

620 F.Supp.3d 434

Scott A. WHORLEY, Plaintiff, v. INTERNATIONAL PAPER, Defendant.

Case No. 6:21-cv-00045

United States District Court, W.D. Virginia, Lynchburg Division

Signed August 10, 2022

Philip Bruce Baker, Sanzone & Baker, LLP, Lynchburg, VA, for Plaintiff.

Kristina H. Vaquera, Milena Radovic, Jackson Lewis LLP, Norfolk, VA, for Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

Scott Whorley alleges he was fired by his employer, International Paper, because he was perceived as posing a COVID-19 threat to the workplace. Whorley now seeks reinstatement and back pay under the Americans with Disabilities Act and the Virginians with Disabilities Act. Before the Court is International Paper's motion to dismiss, in which it argues that Whorley's complaint fails to state a claim under either statute. Whorley's suit will be dismissed because he has not raised a plausible inference either that he was perceived as disabled or, even assuming he was, that his termination was caused by that perception.

I. Background

The following facts are alleged in Plaintiff's complaint and assumed true for purposes of resolving this motion. See King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016) (explaining standard of review). In December of 2020, two members of Whorley's household tested positive for COVID-19. Dkt. 17 ("Complaint") ¶ 11. Whorley informed his supervisor of his exposure and was instructed to stay home for the day. Id. ¶ 15. Whorley's general manager later told Whorley to quarantine for 10 days before returning to work, id., and also requested additional information regarding the "extent" of his exposure, id. ¶ 16. Whorley explained that his fiancé and son had tested positive for the virus, and that he himself was scheduled to be tested following his quarantine. Id. ¶ 17. Whorley's general manager called Whorley each day to check in. Id. ¶ 18.

Whorley returned to work when his quarantine ended. Id. ¶ 19. But he was suspended pending termination the following day, id. ¶ 20, and was fired within the week, id. ¶ 21. Whorley was told he was being fired for willfully misrepresenting information to the company. Id. ¶ 24. Specifically, "Defendant's agents wrongfully asserted that Plaintiff had claimed to have contracted COVID-19, rather than merely informing Defendant of his exposure to COVID-19." Id. ¶ 23 (emphasis original).

In over four years of employment, Whorley had never been "written up" or subject to any disciplinary action. Id. ¶ 14. To the contrary—he "attended work regularly, and met or exceeded his employer's expectations on a daily basis." Id. ¶ 13. Whorley also maintains that he never lied or misled anyone about his COVID-19 status.¹

II. Legal Standard

Whorley correctly argues that he is not obligated to make out a prima facie case of discrimination at the pleading stage of litigation.² But he still must allege facts sufficient to render all elements of his claim plausible under the familiar strictures of Rule 12(b)(6) review. McCleary-Evans v. Md. Dept. Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (explaining that while district court erred in requiring plaintiff to plead facts establishing a prima facie Title VII claim, employment discrimination plaintiffs still must satisfy the "ordinary rules for assessing the sufficiency of a complaint") (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The purpose of a Rule 12(b)(6) motion is to "test the sufficiency of a complaint," not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King, 825 F.3d at 214 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). "Thus, when considering a motion to dismiss, a court must consider the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020). Nevertheless, only facts can render a claim for relief plausible. "[F]ormulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Nor is it sufficient for a plaintiff to plead facts merely consistent with liability. The plaintiff must plead enough factual content to nudge a claim across the border from mere possibility to plausibility. Id. at 570, 127 S.Ct. 1955. See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

III. Analysis

The Americans with Disabilities Act ("ADA") makes it unlawful for covered employers to "discriminate against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Including by "discharging qualified employees because they are disabled." Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014). Accordingly, Whorley's claims hinge on whether he has alleged sufficient facts to render facially plausible his belief that he was fired due to a covered disability.³ He has not.

A. Whorley has not raised a plausible inference that he was regarded as disabled

The ADA defines "disability" to include: (1) "a physical or mental impairment that substantially limits one or more major life activities;" (2) "a record of such an impairment;" or (3) "being regarded as having such an impairment." 42 U.S.C. § 12102(1). Whorley argues that he was disabled under the third prong—that his exposure to COVID-19 led his employer to regard him as having a disability.

Under the 2008 amendments to the ADA, an individual is "regarded as" disabled when he or she is perceived as having a physical or mental impairment, regardless of whether the impairment actually exists or is perceived to limit a major life activity. § 12102(3).⁴ The Code of Federal Regulations defines "physical or mental impairment" to mean:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h).

The Complaint is devoid of factual allegations from which the Court could infer that Whorley's COVID-19 exposure was thought by anyone at International Paper to amount to a "physical or mental impairment." While Whorley was instructed to stay home, this shows only that Centers for Disease Control guidance was followed. See Cupi v. Carle Bromenn Med. Ctr., No. 1:21-cv-01286, 2022 WL 138632 *4 (C.D. Ill. Jan. 14, 2022) (McDade, J.).

Some courts have found that a person may be "regarded as" disabled if they are thought to have contracted COVID-19. See e.g., Fortun v. iAero Thrust LLC., No. 21-cv-23348, 2022 WL 446209 *5 (S.D. Fla. Feb. 14, 2022) (Bloom, J.); Matias v. Terrapin House, Inc., No. 5:21-cv-02288, 2021 WL 4206759 *4 (E.D. Pa. Sept. 16, 2021) (Leeson, Jr., J.). But Whorley's complaint does not allege facts raising a plausible inference that he was thought to have COVID-19 at the time he was fired. The Complaint actually avers facts establishing the opposite: that Whorley was terminated because he was thought to have misled his supervisors to believe he had COVID-19 when in fact he did not. It also strikes the Court as implausible that Whorley would have been instructed to return to work if he was thought to be COVID positive.

B. Whorley has not raised a plausible inference his termination was related to COVID-19

Even assuming Whorley was regarded as having a disability within the meaning of the ADA, the facts pled in the Complaint do not plausibly support the inference that he was terminated for that reason. Whorley specifically alleges a non-discriminatory basis for his termination: lying. Complaint ¶ 23. That Whorley may have been innocent of this offense does not alone give rise to a plausible inference that the stated reason was pretext for unlawful discrimination.

The Fourth Circuit's Bing decision is instructive here. In that case, Bing, an African American employee, brought a Title VII race discrimination action against his employer relating to the employer's decision to fire him his first day on the job. See 959 F.3d at 609. "Within an hour of starting orientation," Bing was confronted with a news article about his tangential involvement in a shooting and sent home. Id. According to Bing, both his termination and the google search that uncovered the news article were prompted by his physical appearance. Id. The Fourth Circuit affirmed the lower court's 12(b)(6) dismissal because, even accepting as true all facts contained in Bing's complaint, it could not reasonably infer racial discrimination. Id. at 617 ("Missing from Bing's complaint are factual allegations that support such an inference"). In fact, the Court noted, Bing's complaint "specifically alleged a non-racial reason for the termination. He asserted [he was] terminated [ ] because of the information from a newspaper article about the shooting incident involving [his] gun." Id. The Fourth Circuit also rejected Bing's argument that he could "find nothing other than his (possibly unexpected) physical appearance as an African-American male to explain" the google search. Id. (cleaned up). The panel instead found that with this statement Bing had "effectively conceded he did not have facts to support his conjecture," reasoning that "[b]eing aware of no alternative explanation and guessing that conduct is racially motivated does not amount to pleading actual facts to support a claim of racial discrimination."...