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United States District Court, M.D. Florida,

Marilyn GRACIA, Plaintiff, v. LAW OFFICES OF ALEXANDER E. BORELL, P.A. and Andrew Guzman, Defendants.

Case No. 6:20-cv-1544-PGB-GJK

Decided: April 19, 2021

David Mitchell Cozad, Chad E. Levy, Law Offices of Levy & Levy, P.A., Sunrise, FL, for Plaintiff. Elizabeth B. Hitt, Adelstein & Matters, PA, Robert Ader, Ader & Hitt, PA, Miami, FL, for Defendants.


This cause is before the Court on Defendant's Motion to Dismiss the Amended Complaint (Doc. 19 (the “Motion”)), Plaintiff's response in opposition (Doc. 21), and Defendant's reply thereto (Doc. 27). Upon consideration, the Motion is due to be denied.


This action arises from Plaintiff Marilyn Gracia's June 2020 termination of employment by Defendants Law Offices of Alexander E. Borell, P.A., and Andrew Guzman. (Doc. 17). Plaintiff filed her two-count Amended Complaint 1 on October 29, 2020, requesting relief under Division E of the Families First Coronavirus Response Act (“FFCRA”). (Id.).

The Amended Complaint alleges that, after potential exposure to COVID-19, Plaintiff, a paralegal for Defendant Law Offices of Alexander E. Borell, P.A., notified her manager of her need to get a COVID-19 test and her doctor's recommendation to self-quarantine until receiving the results. (Id. ¶¶ 5–9). It asserts that “the very next day, and given no ability or opportunity to telework,” Defendant Guzman terminated Plaintiff. (Id. ¶ 10). The Amended Complaint alleges that Defendants wrongfully denied Plaintiff her FFCRA benefits and unlawfully terminated Plaintiff's employment in response to her request for FFCRA benefits. (Id. ¶¶ 12–13, 17–19). The matter is now ripe for review.


A. Rule 12(b)(6)

To survive a motion to dismiss made pursuant to Rule 12(b)(6), the 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 claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Legal conclusions and recitation of a claim's elements are properly disregarded, and courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Courts must also view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam). In sum, courts must (1) ignore conclusory allegations, bald legal assertions, and formulaic recitations of the elements of a claim; (2) accept well-pled factual allegations as true; and (3) view well-pled allegations in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.


The FFCRA “responds to the coronavirus outbreak by providing paid sick leave and free coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers.” Rep. Nita M. Lowey, Cong. Rsch. Serv., 20206201, CRS Summary: H.R. 6201 (2020). Division E of the FFCRA, the Emergency Paid Sick Leave Act (hereinafter, “EPSLA”), provides:

(a) IN GENERAL.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

Pub. L. No. 116-127, § 5102(a)(2), 134 Stat. 178, 195–96 (2020).

Additionally, an employer cannot “discharge, discipline, or in any other manner discriminate against” an employee who “takes leave in accordance with this Act.” § 5104(1), 134 Stat. 178, 196–97.

EPSLA's enforcement mechanism adopts the penalties described in the Fair Labor Standards Act (“FLSA”):

(a) UNPAID SICK LEAVE.—An employer who violates section 5102 shall—

(1) be considered to have failed to pay minimum wages in violation of section 6 of the [FLSA] ․; and

(2) be subject to the penalties described in sections 16 and 17 of [the FLSA] with respect to such violation.

(b) UNLAWFUL TERMIANTION.—An employer who willfully violates section 5104 shall—

(1) be considered to be in violation of section 15(a)(3) of the [FLSA] ․; and

(2) be subject to the penalties described in sections 16 and 17 of [the FLSA] with respect to such violation.

§ 5105, 134 Stat. 178, 197.


Defendants argue that the Amended Complaint fails to state a claim under EPSLA because it does not: (1) specifically allege that Plaintiff “was unable to telework”; and (2) assert that Plaintiff explicitly sought “paid sick leave.” (Docs. 19, 27). The Court disagrees.

Defendants misread the structure of the Act. Section 5102(a) functions in two ways. First, it qualifies an employee for “paid sick time” only “to the extent that the employee is unable to work (or telework)” and only if the employee has one of the listed, COVID-19-related “needs for leave.”2 If the employee qualifies, then the employer must provide “paid sick time.” See § 5102(a), 134 Stat. 178, 195. Second, it delineates the qualifying “needs for leave,” but it goes no farther than mere identification of these protected conditions. See id.

Section 5104(1) fills this gap by preventing an employer from discharging an employee for taking “leave.” See § 5104(1), 134 Stat. 178, 196–97. Although § 5104(1) does not explicitly reference § 5102(a), the word “leave” linguistically connects to the term “need for leave.” More importantly, this connection is reasonable in light of EPSLA's broad purpose: to obviate the pressure on employees “to choose between their paycheck and their health.” 166 Cong. Rec. H1675-09, H1689 (daily ed. Mar. 13, 2020) (statement of Rep. Scott). Thus, if an employee has a “need for leave” enumerated in § 5102(a)(1)–(6), then § 5104(1) protects her from discrimination—regardless of whether she is also qualified to receive paid sick time during that leave.

In other words, § 5102(a) and § 5104(1) operate in distinct realms. Section 5102(a) governs the provision of “paid sick time,” whereas § 5104(1) protects employees with a COVID-19-related “need for leave.” The Court reads § 5104(1) as a statutory floor, or the default level of protection. Every employee with a qualified “need for leave” is shielded from discrimination. But, if an employee satisfies additional requirements, § 5102(a) provides additional protections.

Section 5105's enforcement provisions bolster this reading. It has two separate subsections: (1) the first subsection punishes an employer for refusing to provide “paid sick time” to a qualifying employee (i.e., § 5102(a) violations); and (2) the second subsection punishes an employer for discharging an employee because of her protected, COVID-19-related “need for leave” (i.e., § 5104(1) violations). See § 5105, 134 Stat. 178, 197.

The Court emphasizes that § 5102(a) is pertinent to § 5104(1) insofar as it defines “leave.” EPSLA does not explicitly define “leave.” However, modern dictionaries indicate that, in the context of employment, “leave” denotes “an authorized especially extended absence from duty or employment”3 or “a period of time that someone is allowed away from work for holiday, illness, or another special reason.”4 Cf. Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227, 134 S.Ct. 870, 187 L.Ed.2d 729 (2014) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)) (“It is a ‘fundamental cannon of statutory construction’ that, ‘unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.’ ”). Section 5102(a) limits the extensive import of the ordinary meaning of the word “leave” to periods of absence from work for COVID-19 reasons, and § 5104(1) empowers an employee to seek “leave” for these reasons without fear of adverse employment consequences.

Notably, “leave” does not mean “paid sick leave.” Indeed, § 5104(1) does not mention “paid sick leave.” It is clear from Congress’ use of the terms “paid sick time” and “leave” in different parts of the statute that it intended for the terms to have different meanings. See §§ 5102(a), 5104(1), 5110, 134 Stat. 178, 195–201. Congress understands how to use both terms, and therefore the Court refuses to undermine the significance of the word “leave” by adding language that is not present. Cf. Wis. Cent. Ltd. v. United States, ––– U.S. ––––, 138 S. Ct. 2067, 2071–73, 201 L.Ed.2d 490 (2018) (stating that courts usually presume that differences in language convey differences in meaning and that the judiciary cannot “ ‘rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have’ intended”).5

In fact, the significance of the word “leave” is that it subsumes “paid sick leave.” EPSLA defines “paid sick time” as “an increment of compensated leave” provided by an employer to an employee “during an absence from employment” for certain COVID-19-related reasons. See § 5110, 134 Stat. 178, 195–201 (emphasis added). Therefore, as a textual matter, § 5104(1)’s use of “leave” covers discharge or discrimination resulting from an employee's request for all types of COVID-19-related absence, including, but not limited to, absences accompanied by “paid sick leave.”

This conclusion is reasonable for policy and practical reasons, too. The Act strives to shield employees from COVID-19-related discrimination—not insulate employers from EPSLA lawsuits. To effectuate the broad purpose of the Act, the Court must interpret “leave” broadly. Moreover, an employee expecting to work remotely during her COVID-19-related period of absence will not request “paid sick leave” because her ability to telework renders her ineligible for it. Instead, she will generally request “leave,” or her employer's permission to be physically absent from (but virtually present at) work for COVID-19 reasons. Only where the employee is unable to work either in person or remotely does § 1502(a)’s “paid sick time” requirement come into play. But, in either case, § 1504(1) protects the employee from discharge.

Accordingly, Defendants’ focus on § 5102(a) is misguided. The Amended Complaint has nothing to do with “paid sick time.” Indeed, the allegation that Plaintiff was not given the “ability or opportunity to telework” (indicating that Plaintiff expected and was able to telework) in her capacity as a paralegal (a profession where teleworking is typically practicable and available) essentially admits that Plaintiff did not qualify for “paid sick time.” (Doc. 17, ¶¶ 7, 10) (emphasis added). This is why she did not ask for it. But Plaintiff's lack of qualification for “paid sick leave” under § 5102(a) due to her apparent ability to work remotely is irrelevant to whether Defendants discharged her for taking “leave” under § 5104(1).

Likewise, the Amended Complaint's failure to allege that Plaintiff requested “paid sick leave” is not fatal to its EPSLA claim. Section 5104(1) only requires the Amended Complaint to allege that Plaintiff took “leave” due to a qualifying “need for leave.” The Amended Complaint alleges that Plaintiff's health care provider advised her to self-quarantine due to her COVID-19 exposure, and Defendants concede that this allegation states a qualifying “need for leave.” (Doc. 17, ¶ 9; Doc. 19, p. 4). The Amended Complaint further alleges that Plaintiff informed her manager of her potential COVID-19 exposure and of her consequent need to self-quarantine, which amounts to taking “leave.” (Doc. 17, ¶ 9).

Additionally, the Amended Complaint sufficiently alleges that Defendants discriminated against Plaintiff for COVID-19 reasons under § 5104(1). It alleges that Defendants discharged Plaintiff after she notified them of her potential COVID-19 exposure and need to self-quarantine—that is, Defendants discharged her “in response to Plaintiff's need for benefits under the FFCRA.” (Id. ¶¶ 10, 18–19). Viewing the Amended Complaint in the light most favorable to Plaintiff, the Court finds that these “FFCRA benefits” equate to EPSLA protections under § 5104(1), namely the protection against discharge for a protected, COVID-19-related “need for leave.”6 See Hunnings, 29 F.3d at 1483.

Here, the Amended Complaint asserts that Plaintiff was exposed to COVID-19, advised to self-quarantine by her health care provider, and was terminated by Defendants shortly after she requested “leave” to quarantine, allegedly for requesting such “leave.” Therefore, the Court finds that the Amended Complaint states a plausible claim for relief under EPSLA. See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.


Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion to Dismiss Amended Complaint (Doc. 19) is DENIED.

DONE AND ORDERED in Orlando, Florida on April 19, 2021.


1.   Plaintiff filed her original Complaint on August 25, 2020. (Doc. 1). On October 15, 2020, Defendants filed their first Motion to Dismiss pursuant to Rule 12(b)(6). (Doc. 16). Plaintiff filed her Amended Complaint on October 29, 2020, under Rule 15(a)(1)(B). (Doc. 17).

2.   Section 5102(a) lists six different COVID-19-related “needs for leave.” The “need for leave” at issue here is § 5102(a)(2), where “The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” Of course, an employee advised to quarantine by her doctor is “unable to work” in person at her employer's physical place of business due to COVID-19 concerns. Therefore, the only question is whether the employee is “unable to work” remotely. If not, the employee is qualified to receive paid sick time.

3.   Leave, Merriam-Webster, (last visited Apr. 13, 2021).

4.   Leave, Cambridge Dictionary, (last visited Apr. 13, 2021).

5.   The Court recognizes that the now-reserved regulations pertaining to the FFCRA (i.e., the regulatory nomenclature is intact for future use) stated that “An Employer is prohibited from discharging, disciplining, or discriminating against any Employee because such Employee took Paid Sick Leave under the EPSLA.” 29 C.F.R. § 826.150(a). However, for the reasons provided above, the Court believes that its analysis of the text is more accurate, particularly given the fact that the regulation at issue has been removed and may be replaced with an amended version.

6.   In a footnote, Defendants state that the Amended Complaint lacks “any allegation stating what benefits Plaintiff was allegedly denied, or precisely what benefits Defendants allegedly interfered with. Plaintiff does not assert that Defendant denied her COVID testing or treatment, time off for testing or treatment, or denied her supposed request to quarantine․ Plaintiff appears to posit that the termination of her employment, in and of itself, constitutes an unlawful harm, a violation of the EPSLA/FFCRA.” (Doc. 19, pp. 6–7 n.7). Correct. Plaintiff's termination is exactly the harm alleged in the Amended Complaint. The Statement of Facts section states that Defendants terminated Plaintiff the day after she notified her manager of her doctor-recommended self-quarantine. (Doc. 17, ¶¶ 9–10). Reasonably, the use of the term “FFCRA benefits” and “FFCRA rights” in Counts I and II refers to Plaintiff's termination because, as stated above, § 5104(1) prevents an employer from discharging an employee for a COVID-19-related “need for leave.” (Id. ¶¶ 12–13, 17–19). Finally, Count I states that Defendants interfered with her “benefits” (i.e., EPSLA protections) by denying them, and Count II states that Defendants retaliated against Plaintiff “by terminating her employment ․ in response to the Plaintiff's need for benefits under the FFCRA.” (Id.).The Court notes that the Amended Complaint's use of the word “benefits” is slightly confusing. But it is clear that the Amended Complaint, as a whole, asserts that Plaintiff's termination violated EPSLA. Moreover, Defendants do not seem to object to the actual causes of action—FFCRA Interference and FFCRA Retaliation—but rather to the word “benefit,” and they recognize that the Amended Complaint fixates on Plaintiff's termination. Therefore, cognizant to resolve any doubts in Plaintiff's favor, the Court construes “benefits” to be synonymous with “protections” and refrains from dismissing the Amended Complaint on this basis. See Hunnings, 29 F.3d at 1483.


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