Where an employee alleged that he was fired because his exposure to COVID-19 led his employer to regard him as having a disability, but his complaint did not show he was regarded as disabled, he has failed to state a claim as a matter of law, according to a federal trial court.

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, or ADA, 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.

The plaintiff’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. He has not. Whorley argues 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.

But 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.

Some courts have found that a person may be “regarded as” disabled if they are thought to have contracted COVID-19. 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.

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. 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.

To review, Whorley alleged that his employer (1) knew he had been exposed to COVID-19, (2) thought he had contracted COVID-19 and (3) subsequently terminated Whorley’s employment with the justification that Whorley had lied about the nature of his COVID status (when he had not). While these facts may be consistent with Whorley’s belief that he was fired because he was regarded as a COVID threat, “[t]he mere fact that a certain action is potentially consistent with discrimination does not alone support a reasonable inference that the action was motivated by bias.”

Defendant’s motion to dismiss is granted.