Employee’s EPSLA Claim Survives Motion to Dismiss

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An employee who was fired after a positive COVID-19 test can pursue a claim of wrongful termination under the Emergency Paid Sick Leave Act (EPSLA), a federal court in Texas has ruled.

An insurance agent for American National Insurance Company, Miguel Luna was exposed to COVID-19 during a business meeting on November 6, 2020. He informed his manager, Alberto Bocanegra, who instructed Luna to report to the office the following day or be deemed to have abandoned his job.

When Luna reported for work, Bocanegra told him to get tested for COVID-19 and not to see clients until he received the results. On November 8, Luna notified Bocanegra that he had tested positive for COVID-19.

On November 10, 2020, American National terminated Luna. He filed suit alleging wrongful termination in violation of the EPSLA.

American National moved to dismiss, arguing that it was not a covered employer as defined by the statute and therefore could not be sued under the law.

U.S. District Judge Frank Montalvo disagreed, denying the motion and allowing Luna to engage in discovery.

The EPSLA requires employers to provide paid sick leave for employees if they are unable to work due to federal, state or local quarantine or isolation order; self-quarantining at the advice of a health care provider; showing symptoms and seeking a medical diagnosis; caring for someone in quarantine; or caring for a child as a result of school closure or unavailable childcare.

Covered employers under the statute include only those private entities or individuals engaging in commerce or in an industry affecting commerce and employing fewer than 500 employees.

In his complaint, Luna pled that American National employs fewer than 500 employees and engages in commerce, meeting the requirements of the EPSLA.

“Generally, all plausible facts pleaded with sufficient specificity are accepted as true when considering a motion to dismiss,” the court wrote.

To rebut Luna’s pleadings, American National asked the court to take judicial notice that it employs more than 500 employees. In support, it provided the affidavit of a human resources manager at the company, as well as the City of Galveston 2020 Fiscal Year Adopted Budget and Fiscal Year 2021 Proposed Budget.

While the affidavit was “perhaps a compelling piece of evidence for summary judgment … [it] is not a source of information that cannot reasonably be questioned,” Judge Montalvo said. “Witnesses are routinely questioned and challenged by the discovery process through depositions and requests for documents that might contradict witness testimony. As discovery has not yet commenced, [Luna] has not yet had the opportunity to begin this process. A single affidavit of a party’s employee is far from reaching the indicia of reliability of treatises, dictionaries and scientific law.”

Government documents have been found to hold facts of which a court may take judicial notice, the court acknowledged, but typically the judicially noticed fact was a question of the agency’s own procedure, a fact solely within an agency’s function or control, or information a regulatory agency legally must keep.

Not so the documents proffered by American National.

“Publication in a government document alone is not necessarily sufficient to render a fact so self-evident that no reasonable person could question it,” the court said. “Viewed in this light, it is unusual that [American National] relies on the City of Galveston’s proposed or adopted budget reports to prove that it employs over 500 people. The number of people employed by a single business operating in Galveston is not key to the city’s essential functions.”

There was no apparent truism that the number of people employed by a private entity and city spending are correlated, Judge Montalvo added; nor was it self-evident that the information contained in the documents was obtained through a mechanism subject to legal safeguards.

The court declined to exercise its discretion to take judicial notice of any of the documents.

Further, it denied American National’s attempt to have the affidavit entered as evidence.

“Consideration of the affidavit would convert the motion into a motion for summary judgment without giving [Luna] the opportunity to conduct discovery,” Judge Montalvo wrote. “However, information regarding the number of people [American National] employs is solely within [its] knowledge and control. It is unlikely [Luna] could have provided documentation in support of his claim before conducting discovery even if such materials exist.”

The court denied American National’s motion to permit Luna “a reasonable opportunity to test [American National’s] claim that it employs more than 500 people and is therefore exempt from complying with EPSLA.”

To read the order in Luna v. American National Insurance Company, click here.

Why it matters: With little case law in place addressing the year-old EPSLA, the order provides some insight into a court’s consideration of an employee’s claims under the statute, at least at the initial stages. The Texas federal court declined to take judicial notice of the employer’s evidence about the number of its employees and allowed the suit to move forward so that the former employee could conduct discovery.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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