Stephen Dusenberry says he tested negative for the coronavirus in November after a member of his household was exposed at the school where she worked, but his doctor still recommended he stay home for at least nine days to be sure. When his employer, Liberty Risk Consulting LLC, insisted he come back to the office sooner, he refused and was fired, the suit says.
"You had a negative test so I'm not sure the extra few days at home is going to...prevent the imaginary spread of a sickness you don't have. Please don't take any of that the wrong way, I just feel it's highly unnecessary and we've been lenient with you, so please show up to work tomorrow," Dusenberry's shift supervisor told him via text, according to the complaint filed in the Pittsburgh federal district court.
Dusenberry claims his firing, along with the company's refusal to pay him for the week he was quarantining or working from home, violated the federal Emergency Paid Sick Leave Act and the Pennsylvania Wage Payment and Collection Law. He is seeking reinstatement and back pay, plus liquidated damages and attorney fees.
Formerly a senior account manager at Beaver County-based Liberty, Dusenberry says that his physician advised him on Nov. 12 to stay home until at least Nov. 21 after his family member was exposed to the virus.
"Although Mr. Dusenberry tested negative for COVID-19 at the time, his doctor believed he still could have been infected due to the possibility of a false negative shortly after exposure," the complaint says. "He therefore advised him to self-quarantine, particularly because he has an underlying preexisting condition that could subject him to complications if he were to contract COVID-19."
Dusenberry says he gave Liberty a note from his doctor stating that he would be self-quarantining until Monday, Nov. 23, and he worked from home at first. On Nov. 16, however, his shift supervisor, Starr Fedele, texted to say that he was expected to return to the office on Nov. 18. Fedele was insistent that CEO Michael Morgan wanted Dusenberry to report in person, despite him noting that two others at the same school had tested positive for COVID-19.
"If you can't show up then Mike wants me to start filling your shifts," Fedele said, according to the complaint. "I don't want to have to do that because I think you're great Stephen but I feel this covid thing is being milked. A lot of people have kids in school whose schools have been positive for covid and still show up."
Dusenberry still declined to go against his doctor's advice and said that the next day, Morgan asked other employees to cover his shifts and texted him to confirm that he would not be coming in. On Nov. 18, the suit says, Dusenberry's manager said he had "no call no showed" and that the company accepted his resignation.
"Mr. Dusenberry did not resign," the complaint says. His final paycheck only covered the days up until Nov. 14, though Dusenberry claims he worked from home on Nov. 16 and is entitled to paid sick leave for the rest of that week under the EPSLA.
The suit claims Liberty retaliated against him in violation of the law.
"Defendant fired Mr. Dusenberry because he exercised rights under the EPSLA, including the right to take leave when advised by a health care provider to self-quarantine," the complaint says. "Defendant failed to restore Mr. Dusenberry to an equivalent position at the end of his EPSLA-protected leave."
A representative for Liberty declined to comment on Wednesday. Counsel for Dusenberry also declined comment.
Dusenberry is represented by Christine T. Elzer of Elzer Law Firm LLC.
Counsel information for Liberty was not immediately available.
The case is Dusenberry v. Liberty Risk Consulting LLC, case number 2:21-cv-00162, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Regan Estes.
For a reprint of this article, please contact reprints@law360.com.
