January 31, 2023

Volume XIII, Number 31


January 30, 2023

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Hot off the Press: Verdict Against Plaintiff in COVID-19 Leave Lawsuit

Since last year, the Barnes & Thornburg COVID-19 Workplace Litigation Tracker team has been following O’Bryan v. Joe Taylor Restoration, a case filed in federal court for the Southern District of Florida. We can now report that this case went to trial last week, and a jury verdict was returned in favor of the employer.

To recap, the plaintiff in this case sued his employer for denial of benefits and for retaliation under the FFCRA. The plaintiff had told his employer he needed to quarantine for 14 days per his doctor’s order. When given necessary paperwork for completion in order to qualify for paid sick leave under the new law, the plaintiff submitted it with a discrepancy suggesting he was under a government quarantine order.  After his 14-day quarantine, the plaintiff wanted to return to work and his employer requested a doctor’s note clearing him to return. However, when the plaintiff provided the doctor’s note, it became clear the plaintiff had never seen his doctor or been directed to quarantine.

We spoke with employer defense counsel Daniel R. Levine of the law firm of Padula Bennardo Levine. When asked what he thinks tipped the verdict in favor of the defense, Levine reported that it all boiled down to the plaintiff’s lack of credibility. Levine emphasized, “During cross-examination of the plaintiff, he repeatedly admitted in open court to lying to his employer. That the jury did not reach the question of the employer’s affirmative defense speaks volumes, I believe, as to how much the plaintiff’s credibility was shot.” 

The lesson? After a court complaint, a plaintiff needs credible evidence to support the claims presented. Here, the jury rejected the plaintiff’s claims after hearing evidence that the plaintiff lied to his employer. Employers often can focus on exposing inconsistencies and deficiencies in credibility, as Levine did in this case.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 172

About this Author

Katheen Anderson Litigation Attorney

Kathleen M. Anderson has been an advocate for businesses and entrepreneurs throughout the country for more than 20 years. Kathleen, who focuses her practice on litigation and counseling, has been recognized on the Best Lawyers in America, Who's Who in American Law, Chambers USA and Indiana Super Lawyers lists. In addition to the "Best Lawyers" honor,​Best Lawyers in America has named Kathleen a 2015 "Lawyer of the Year." Kathleen brings expertise, a partnering mentality and no-nonsense focus to her representation of businesses.

Kathleen's litigation practice covers the full spectrum...

Mitchell Berry Fort Wayne Labor Attorney with Barnes and Thornburg LLP
Staff Attorney

Mitchell Berry focuses his practice in the areas of labor and employment litigation and education law. He prides himself on crafting cutting-edge answers to clients’ employment law concerns and defending businesses both in and out of court.

Mitchell is thorough and strategic in his work, and is driven to finding solutions that meet his client’s needs, even in the toughest situations.

Having started his career in private practice and with a prosecutor’s office, Mitchell brings a balanced perspective to business clients.

He represents employers facing employment...