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Law360 (July 21, 2020, 7:47 PM EDT ) Two businesses formed from a metals company have denied a former in-house counsel's claim that he was fired for taking time off to recover from the novel coronavirus, saying he was axed for abruptly moving to Europe, not taking sick leave.
Attorney Daniel Burbach Jr.'s "unilateral and unapproved international relocation" to Slovenia with his family was the basis for his termination, not sick leave he took in the days before the move to recover from COVID-19, Pittsburgh-based Arconic Corp. and Howmet Aerospace Inc. told a Pennsylvania federal court on Monday in a bid to dismiss the complaint.
The companies claimed the firing in no way violated the Family and Medical Leave Act, saying that Burbach fails to cite a single FMLA benefit he was wrongfully denied. He had never even raised the issue of FMLA before filing his complaint, according to the motion.
"This court should reject plaintiff's attempt to invoke FMLA in hindsight, using the law as a sword to disrupt his employer's decision that he could not relocate internationally," the motion states.
Burbach originally worked for Arconic Inc. in its New York office as in-house counsel before the company split into two entities on April 1. After the split, Burbach transitioned to the newly formed Arconic Corp. and was no longer an employee of Arconic Inc., which is now Howmet Aerospace Inc., the motions states. Consequently, only one of the two companies that the lawyer sued was his previous employer, according to the dismissal bid.
As the spread of the coronavirus in early March led to stay-at-home orders, Arconic Inc. told all employees to work remotely in mid-March, according to the suit.
The companies say Burbach had Arconic Inc.'s blessing when he decided to relocate his family to a relative's vacant apartment in Miami in the days following the office shifting to work from home. And management supported him when he developed a 102-degree fever, was diagnosed with COVID-19 and needed time away from work to recover between March 23 and 27.
But on March 28, the same day he returned to work, he informed his supervisor that he and his family could no longer stay at the Miami apartment and were going to his spouse's family home in Slovenia for the remainder of the crisis. His employer, Arconic Corp., told him he could not relocate internationally but he moved anyway, ending his employment, the companies said in their motion to dismiss.
If the court declines to dismiss the suit, the companies asked that, at minimum, it dismiss the claims against Howmet Aerospace Inc., because Burbach was not its employee after March 31.
Burbach's attorney Samuel J. Cordes of Rothman Gordon PC, told Law360 on Tuesday, "Their motion borders on frivolous." He said that an email from Burbach's supervisor explicitly shows she was upset because she had extra work to do while he was recovering from the illness and clearly suggests he was being disciplined because he fell ill.
Representatives for the defendants did not immediately respond to requests for comment.
Burbach is represented by Samuel J. Cordes of Rothman Gordon PC.
Arconic Corp. and Howmet Aerospace Inc. are represented by Molly E. Meacham of Babst Calland Clements & Zomnir PC.
The case is Burbach v. Arconic Corp. et al., case number 2:20-cv-00723, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
