Mishos v. McKesson Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JESSICA MISHOS, :

:

Plaintiff, : Case No. 2:22-cv-01666

:

v. : Chief Judge Algenon L. Marbley

:

MCKESSON CORPORATION, : Magistrate Judge Kimberly A. Jolson

:

Defendant. :

OPINION & ORDER

I. INTRODUCTION

This matter, which arises out of alleged violations of the Americans with Disabilities Act

of 1990 (“ADA”), Pub. L. No. 101-335, 104 Stat. 327 (1990) (codified as amended in scattered

sections of 42 and 47 U.S.C.), and the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No.

110-325, 122 Stat. 3553 (codified in scattered sections of 29 and 42 U.S.C.), is now before the

Court on Defendant’s Motion to Dismiss (ECF No. 24) and Motion to Strike (ECF No. 30).

Plaintiff Jessica Mishos, proceeding without the assistance of counsel, asserts that the COVID-19

policies issued by her former employer, Defendant McKesson Corporation (“McKesson”),

violated the ADA’s prohibitions against disability discrimination, non-job-related medical

examinations and inquiries, intrusion upon medical privacy, and retaliation. (See generally Am.

Compl., ECF No. 23). Mishos, however, has failed to allege that she suffers from an impairment

cognizable under the ADA—nor that she has been regarded as or has a record of such impairment.

Her claim of disability discrimination therefore fails to state a claim; for related reasons, her other

claims fail too. Accordingly, Defendant’s Motion to Dismiss (ECF No. 24) is GRANTED.

Plaintiff’s Motion to Leave to Amend (ECF No. 34) is DENIED AS MOOT.

II. BACKGROUND

At the motion to dismiss stage, the Court accepts as true the allegations in Mishos’

Amended Complaint, in which she describes her employment history at McKesson prior to and

during the COVID-19 pandemic, until her termination in March 2022.

A. Factual Background

Mishos began working for McKesson, a healthcare company headquartered in Texas, on

August 27, 2018. (See Am. Compl. ¶ 18, ECF No. 23). McKesson has maintained an office

location in Columbus, Ohio, since 2017, when it acquired the Columbus-based software company

CoverMyMeds. Mishos started at McKesson as a Senior Account Coordinator, before

transitioning to the Senior Associate Customer Success Manager role in August 2021. (Id.).

McKesson had closed its offices through much of 2020 and the first half of 2021 in response to

the global COVID-19 pandemic, permitting employees to work remotely during that time. In the

summer of 2021, McKesson began planning to re-open its offices while also plotting the best way

to minimize the spread of COVID-19 among in-office employees. (See Affidavit of Jessica Mishos

(“Mishos Aff.”) ¶¶ 11–12, ECF No. 23-1; see also id. Ex. A-1). In June, McKesson informed

employees via email that they would be required to wear facemasks, to engage in social distancing,

to come into the office on a staggered schedule, and to use an online scheduling tool to reserve

desks. (See id. Ex. A-1).

Beginning on August 9, 2021, McKesson required employees who chose to work from the

office to be fully vaccinated and to provide proof of vaccination. (Id. Ex. A-2). Employees at that

point had a choice: they could continue working from home or could work out of the office, as

long as they first submitted proof of vaccination to their manager in a 1-on-1 video call or in

person. (Id.). The following month, McKesson updated its COVID-19 vaccination policy,

requiring all “[e]mployees who enter professional healthcare settings as part of their role, . . .

including sales professionals, delivery professionals, and implementation team” to be fully

vaccinated by November 15, 2021. (Id. Ex. A-6). Additionally, all employees were required to

inform the company of their vaccination status by October 1, 2021. (See id.). Any employee,

however, who was “required but unable to be vaccinated due to a medical condition or sincerely

held belief” was authorized to seek an accommodation. (Id.). Employees who did not comply

risked termination.

Mishos did not comply with any of the requirements outlined above. She did not provide

her vaccination status to McKesson by the October 1, 2021, deadline. (Am. Compl. ¶ 28, ECF

No. 23). She did not receive the COVID-19 vaccine. (See id. ¶ 32). Over the following months,

Mishos had repeated conversations with her supervisors and Human Resources (“HR”) employees

at McKesson, in which she was told that her position would be terminated if she continued to

refuse to receive the COVID-19 vaccine or request an accommodation. Mishos, in response,

maintained her refusal and further claimed that she was unwilling to provide her vaccination status

to McKesson because to do so, and in the manner required by McKesson, would violate her rights.

(See generally id. ¶¶ 27, 31–35, 37–39). She also asserted in emails to HR that, by classifying her

as unvaccinated, McKesson was effectively labeling her as “disabled.” (Id. ¶ 34). The only request

from the company that Mishos did comply with was a “Covid-19: your questions answered”

training, which she completed in January 2022. (See id. ¶ 40).

Mishos was terminated in March 2022. (Id. ¶¶ 46–49).

B. Procedural Background

Following Mishos’ termination from McKesson, she filed a complaint in this Court. (See

Compl., ECF No. 4). That complaint has since been superseded by an amended complaint. (See

Am. Compl., ECF No. 23). Defendant’s initial Motion to Dismiss (ECF No. 12), filed before the

amended complaint, was denied as moot. (See Order, ECF No. 22). Defendant now moves again

to dismiss Plaintiff’s complaint. That motion, as well as Defendant’s Motion to Strike Plaintiff’s

sur-reply, which was filed without leave of Court, are now ripe for review.

III. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) operates to evaluate the sufficiency of the

complaint and permits dismissal of a complaint for “failure to state a claim upon which relief can

be granted.” Fed. R. Civ. P. 12(b)(6). Such a motion “is a test of the plaintiff’s cause of action as

stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden v. City of

Columbus, 404 F.3d 950, 958–59 (6th Cir. 2005) (citation omitted). Accordingly, the Court must

“construe the complaint in the light most favorable to the plaintiff, accept its allegations as true,

and draw all reasonable inferences in favor of the plaintiff.” In re Travel Agent Comm’n Antitrust

Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City of Cincinnati, 521 F.3d 555, 559

(6th Cir. 2008)). Although the court’s primary focus will be on the allegations in the complaint,

the court may also consider “any exhibits attached thereto, public records, items appearing in the

record of the case and exhibits attached to the defendant’s motion so long as they are referred to

in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate

Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

To survive a motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are

sufficient to raise a right to relief above the speculative level and to state a claim to relief that is

plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (internal

quotations omitted) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

considered 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. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And though the court “must accept all well-pleaded

factual allegations in the complaint as true,” the court “need not accept as true a legal conclusion

couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations

omitted).

IV. LAW & ANALYSIS

The ADA was “enacted [] in 1990 to remedy widespread discrimination against disabled

individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). To that end, Congress created

a “broad mandate” in the ADA, “forbid[ding] discrimination against disabled individuals in major

areas of public life, among them employment (Title I of the Act), public services (Title II), and

public accommodations (Title III).” Id. at 675 (citations omitted). With respect to employment,

the ADA (as well as the ADAAA) aims to remove the barriers preventing qualified individuals

with disabilities from enjoying the employment opportunities they would otherwise have access

to without a disability; it does so by prohibiting employment discrimination on the basis of an

employee’s disability, preventing employers from inappropriately inquiring about an employee’s

disability except where job-related, and forbidding employers from retaliating against employees

who exercise their rights under the ADA.

In the Amended Complaint, Mishos alleges that McKesson violated her rights pursuant to

the ADA and ADAAA in four separate ways.1 First, Mishos alleges that she has been

discriminated on account of being “regarded as” disabled or having a “record of” a disability

1 The first three claims described below are all listed under Count I of the Amended Complaint. But as they

allege separate violations, the Court treats them separately here. See also Williams v. Curtin, 631 F.3d 380, 383 (6th

Cir. 2011) (noting that pleadings from pro se litigants are subject to “less stringent standards than formal pleadings

drafted by lawyers,’ and therefore should be liberally construed” (quoting Martin v. Overton, 391 F.3d 710, 712 (6th

Cir. 2004))).

impairment. (See generally Am. Compl. ¶¶ 51–78, ECF No. 23). Second, she asserts that, in

asking her to upload her vaccination status and undergo temperature checks, McKesson

inappropriately required non-job-related medical examinations. (See id. ¶¶ 79–89). Third, the

requirement that employees provide their vaccination status (and COVID-19 test results) to

McKesson allegedly violated her medical privacy rights. (See id. ¶¶ 90–94). Fourth, she claims

that she was terminated in retaliation for her attempts to assert her rights under the ADA and the

ADAAA. (See id. ¶¶ 128–58). This Court addresses each claim in turn.

A. Disability Discrimination

To state a claim for disability discrimination pursuant to the ADA, a plaintiff must “show:

1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable

accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason

to know of the plaintiff’s disability; and 5) the position remained open while the employer sought

other applicants or the disabled individual was replaced.” Keogh v. Concentra Health Servs., Inc.,

752 F. App’x 316, 324 (6th Cir. 2018) (quoting Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,

703 (6th Cir. 2008)). Disability, in this context, is defined as: “(A) a physical or mental impairment

that substantially limits one or more of the major life activities of such an individual; (B) a record

of such impairment; or (C) being regarded as having such an impairment.” Daughtery, 544 F.3d

at 703 (quoting 42 U.S.C. § 12102(2)(A)–(C) and citing Ohio Rev. Code § 4112.01(A)(13)). These

are known colloquially as the “actual disability,” “record of,” and “regarded as” prongs. See 29

C.F.R. § 1630.2(g)(2).

Mishos’ disability discrimination claim falls short at the very first hurdle: she has not

alleged adequately that she is disabled. She contends that she is disabled only under the “record

of” and “regarded as” prongs, acknowledging that she is not “actually disabled.” (Am. Compl. ¶

53, ECF No. 23). Under the ADA, an individual is “‘regarded as having such an impairment’ if

the individual establishes that he or she has been subjected to an action prohibited under this

chapter because of an actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.” 47 U.S.C. § 12102(3)(A). This

does not apply to “impairments that are transitory and minor. A transitory impairment is an

impairment with an actual or expected duration of 6 months or less.” Id. § 12102(3)(B).

Alternatively, a plaintiff may establish that she falls within the “record of” prong, which means

that she “has ‘a history of, or has been misclassified as having, a mental or physical impairment

that substantially limits one or more major life activities.’” Mx Grp., Inc. v. City of Covington,

293 F.3d 326, 339 (6th Cir. 2002) (quoting 28 C.F.R. § 35.104(3)).

Note that both the “record of” and “regarded as” prongs require the employer to perceive

the employee as having a “physical or mental impairment,” either by acting as if she is impaired

or by classifying her in records as impaired.2 Mishos presents two possible impairments that

McKesson has regarded her as having or has misclassified her as having:3 (1) "‘as if’ [she] carried

a specific, active, infectious disease”; or (2) “‘as if’ [she] had an impaired or suppressed immune

system that made [her] prone to contracting ‘Covid-19’.” (Am. Compl. ¶ 7, ECF No. 23).

McKesson has allegedly done so simply by virtue of promulgating a workplace COVID-19 policy.

The first possibility is that she was infected with COVID-19. But there is no indication

that, by (accurately) classifying Mishos as unvaccinated, McKesson was also labeling her as

infected by COVID-19. Rather, McKesson treated Mishos as potentially infectious, not as

2 Although the impairment must “substantially limit” a major life activity for the “record of,” that is no longer

the case for the “regarded as” prong. Prior to 2008, courts had held that an individual was “regarded as” having an

impairment only if the impairment “substantially limit[ed] one or more of the major life activities of such individual.”

Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999). In 2008, however, the ADAAA inserted

“whether or not” language into the definition of “regarded as.” See 42 U.S.C. § 12102(3)(A).

3 Her allegation, in fact, is that McKesson has discriminated against not only her, but also all unvaccinated

individuals at the company who had not requested an exemption.

presently infection—as if she might contract COVID-19 in the future. That does not constitute an

impairment under the ADA. See EEOC v. STME, LLC, 938 F.3d 1305, 1315 (11th Cir. 2019)

(concluding that “the disability definition in the ADA does not cover this case where an employer

perceives a person to be presently healthy with only a potential to become ill . . . in the future”);

see also Earl v. Good Samaritan Hosp. of Suffern, No. 20-cv-03119, 2021 WL 4462413, at *6

(S.D.N.Y. Sept. 28, 2021) (noting that the “perception of infectiousness is not the same as

perceived disability”).

And even if it were the case that McKesson viewed Mishos as having contracted COVID-

19, she has still failed to state a claim under the “regarded as” prong. In general, the enforcement

of policies asking an employee to distance socially or wear a mask is not disability discrimination,

but rather just the application of public health guidelines. See, e.g., Rice v. Guardian Asset Mgmt.,

Inc., 3:21-cv-00693, 2021 WL 4354183, at *2–*3 (N.D. Ala. Aug. 19, 2021), aff’d, 2022 WL

1763816 (11th Cir. June 1, 2022). Moreover, “being perceived as having COVID-19 is not a

cognizable disability under the ADA” because “[t]he vast majority of cases of COVID-19 last

fewer than 20 days” and thus are transitory and minor. Thompson v. City of Tualatin, No. 3:21-

cv-01587, 2022 WL 742682, at *2 (D. Or. Mar. 11, 2022) (citations omitted).

The second possibility McKesson suggests is that McKesson treated her as having “an

impaired or suppressed immune system . . . prone to contracting ‘COVID-19’.” (Am. Compl. ¶ 7,

ECF No. 23). This too fails to state a claim. McKesson’s policies were applied broadly, to all

U.S. employees who worked in certain roles. (See Pl.’s Ex. A-6, ECF No. 23-1) (requiring that all

employees “who enter professional healthcare settings as part of their role” be fully vaccinated).

There is no indication that the COVID-19 policies were implemented because McKesson viewed

unvaccinated individuals as carrying COVID-19 or as having a suppressed immune system; rather,

McKesson believed, as did other organizations that issued similar policies, that all individuals were

susceptible to contracting COVID-19—i.e., that susceptibility to COVID-19 is simply the natural,

baseline condition of the human immune system. Cf. United States of America, WORLD HEALTH

ORG., https://covid19.who.int/region/amro/country/us (last visited June 12, 2023) (showing that

nearly one-third of the population of the United States has contracted COVID-19 at some point

over the last three and a half years). In short, the fact that McKesson issued COVID-19 policies

or classified Mishos as unvaccinated does not support the inference, even when reading the

complaint in the light most favorable to the plaintiff, that McKesson perceived her to be impaired.

District courts around the country have come to the same conclusion when confronted with this

issue; just “‘because [an employer] followed the relevant public health guidance’ regarding

COVID-19 in its actions towards [an employee] ‘does not mean [it] regarded him as disabled.’”

Chancey v. BASF Corp., No. 3:22-cv-00034, 2022 WL 18438375, at *3 (S.D. Texas Dec. 29,

2022) (some alterations in original) (quoting Champion v. Mannington Mills, Inc., 538 F. Supp.

3d 1344, 1350 (M.D. Ga. 2021)); see also Shklyar v. Carboline Co., 616 F. Supp. 3d 920, 926

(E.D. Mo. 2022), aff’d, 2023 WL 1487782 (8th Cir. Feb. 3, 2023); Speaks v. Health Sys. Mgmt.,

Inc., No. 22-cv-00077, 2022 WL 3448649, at *5 (W.D.N.C. Aug. 17, 2022).

In short, Mishos has not shown that McKesson regarded or misclassified her as having an

impairment. Neither condition she proposes qualifies as “an actual or perceived physical or mental

impairment” cognizable under the ADA. There is an absence of facts alleged showing that being

unvaccinated is a disability or that being classified as unvaccinated signified having a suppressed

or weakened immune system. And even if McKesson was “making a record of ‘disability’ by

classifying her as ‘unvaccinated,’” Mishos has presented no factual allegations from which this

Court can draw the inference that such disability “substantially limits one or more [of her] major

life activities.” (Am. Compl. ¶ 34, ECF No. 23).

It is also worth clarifying a few further points that Mishos appears to misunderstand.

Mishos claims notice “that she was regarded as having a disability” by the company. (Am. Compl.

¶ 115, ECF No. 23). But an employee cannot unilaterally establish that she falls within the

“regarded as” prong on her own. See, e.g., Talley v. Fam. Dollar Stores of Ohio, Inc., 542 F.3d

1099, 1106 (6th Cir. 2008) (rejecting plaintiff’s unilateral assertion that she met the “regarded-as”

prong). That determination must be made by a court of law, based on evidence in the record of

the employer’s actions and of the impairment. See id. Similarly, a plaintiff cannot shift the burden

of proof under the ADA simply by asserting a “regarded as” or a “record of” claim without the

requisite supporting evidence or allegations. (See id. ¶ 53; see also Pl.’s Resp. in Opp’n at 1, ECF

No. 25). Instead, under the familiar McDonnell Douglas burden-shifting framework, a plaintiff

must first make out a prima facie case of discrimination. Ferrari v. Ford Motor Co., 826 F.3d

885, 891–92 (6th Cir. 2016) (describing the framework for indirect claims of disability

discrimination under the ADA). If, and only if, she is able to do so does the burden shift to the

defendant.

Thus, contrary to Mishos’ assertions, the mere fact that she told McKesson that it was

acting as if it regarded her as disabled has no legal import. It did not shift the burden, such that

she no longer needed to plead factual allegations of an impairment that she was perceived as or

misclassified as having. Had she done so, under the burden-shifting framework, McKesson would

then be required to demonstrate that it had offered an adequate medical accommodation. And, in

fact, it is undisputed that McKesson offered accommodations and that Mishos did not request an

accommodation. (See Pl.’s Resp. in Opp’n at 8, ECF No. 25) (admitting that she “has never

requested any accommodation from the defendant regarding its so-called ‘COVID’ policy”).

Having offered Mishos accommodations in compliance with the law, McKesson need not qualify

for some exception from the ADA to defeat Mishos’ claim. (See id. at 2).

As Mishos has failed to allege a cognizable disability under the ADA and has never sought

an accommodation, this Court finds that she has failed to state a disability discrimination claim.

Her first claim is DISMISSED WITH PREJUDICE.

B. Non-Job Related Medical Inquiries

As part of its return-to-office policy, McKesson required employees to disclose their

vaccination status and submit COVID-19 diagnostic test results.4 Mishos alleges that these were

impermissible disability-related inquiries, since they were not related to her job and were not

consistent with any conceivable necessity. (See Am. Compl. ¶¶ 80–81, ECF No. 23).

The ADA prohibits employees from “requir[ing] a medical examination and . . . mak[ing]

inquiries of an employee as to whether such employee is an individual with a disability . . . unless

such examination or inquiry is shown to be job-related and consistent with business necessity.” 42

U.S.C. § 12112(d)(4)(A); see 29 C.F.R. §§ 1630.13(b), 1630.14(c). As explained earlier, having

COVID-19 is not a disability given the transitory nature of the illness (especially as Mishos has

not alleged that she is suffering from “long COVID”), nor is being unvaccinated a disability. Thus,

COVID-19 diagnostic tests or vaccination status updates are not medical examinations or inquiries

“as to whether such employee is an individual with a disability.” 42 U.S.C. § 12112(d)(4)(A); see

also EEOC, Enforcement Guidance: Disability–Related Inquiries and Medical Examinations of

Employees Under the Americans with Disabilities Act (ADA), Part B.1 (July 27, 2000), 2000 WL

4 Mishos also alleges that McKesson required employees to “disclos[e] vital statistics, like body

temperature.” (Am. Compl. ¶ 81, ECF No. 23). But McKesson’s return-to-work policy explicitly noted that it would

“not be requiring temperature checks . . . to access our buildings.” (Pl.’s Ex. A-1, ECF No. 23-1).

33407181, at *3 (defining “disability-related inquiry” as “a question (or series of questions) that

is likely to elicit information about a disability”).

Moreover, guidance issued by the EEOC to employers about how to handle the COVID-

19 pandemic advised that asking employees about their COVID-19 vaccination status did not

violate the ADA because such questions were not likely to disclose the existence of a disability.

See Bobnar v. AstraZeneca, No. 1:22-cv-02258, 2023 WL 3340466, at *4 (N.D. Ohio May 9,

2023). The Sixth Circuit has acknowledged that EEOC enforcement guidance is “very persuasive

authority” as to questions of interpreting the ADA. Kroll v. White Lake Ambulance Auth., 691

F.3d 809, 815 (6th Cir. 2012) (citation omitted).

Because McKesson’s requests about Mishos’ vaccination status and COVID-19 test results

did not constitute disability-related inquiries or examinations, see Chancey, 2022 WL 18438375,

at *4; Sharikov, 2023 WL 2390360, at *15, this portion of the complaint also fails to state a claim.

C. Right to Medical Privacy

Mishos also alleges that McKesson has violated her right to medical privacy by storing

confidential medical information without regard to her rights under the ADA. (See, e.g., Am.

Compl. ¶¶ 84, 90–94, ECF No. 23). The implementing regulations of the ADA require that an

employer must keep any “[i]nformation obtained . . . regarding the medical condition or history of

any employee . . . on separate forms and in separate medical files” and treat that information “as a

confidential medical record.” 29 C.F.R. § 1630.14(d)(4)(i). Supervisors and managers are

permitted to be informed about an employee’s medical conditions and accommodations. Id.

Although Mishos claims in her pleadings that McKesson did not make any provisions to

comply with this regulation, the exhibits she attached to her pleadings demonstrate that the

opposite is true. See Bassett, 528 F.3d at 430. In the notices McKesson issued to employees about

the COVID-19 policies, it explained that information about vaccination status “will be stored in a

confidential file and used only for authorized business purposes, or health, safety and compliance

purposes. It is maintained separately from other HR personnel files . . . .” (Pl.’s Ex. A-12, ECF

No. 23-1). Additionally, Mishos herself disclosed her vaccination status to her supervisors and

HR personnel via email.

She does not allege that she submitted any COVID-19 information to McKesson through

the company’s (allegedly unsecure) health information portal, that any such information was

shared inappropriately, or that any unauthorized personnel were informed of her vaccination status.

This, too, fails to state a claim.

D. Retaliation

The final ADA claim presented by Mishos is for unlawful retaliation. Because she has not

presented direct evidence of retaliation, she “bears the initial burden to establish a prima facie case

of retaliation, which requires a showing that: (1) the plaintiff engaged in activity protected under

the ADA; (2) the employer knew of that activity; (3) the employer took an adverse action against

plaintiff; and (4) there was a causal connection between the protected activity and the adverse

action.” Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014) (citation omitted).

This is typically understood to be a “low hurdle.” Gribcheck v. Runyon, 245 F.3d 547, 551

(6th Cir. 2001) (citation omitted). It is not, however, one that Mishos clears. She maintains that

she has engaged in an array of protected activity—specifically by sending various emails to her

supervisors and HR personnel at McKesson explaining her refusal to update her vaccination status

or submit to COVID-19 testing and asserting her “rights to informed consent and her rights

protected under the ADA.” (E.g., Am. Compl. ¶ 31, ECF No. 23; see also Pl.’s Resp. in Opp’n at

15, ECF No. 25). The earliest of these communications was sent in November 2021. (See Am.

Compl. ¶ 31, ECF No. 23; see also Pl.’s Ex. A-18A, ECF No. 23-2).

But the adverse employment actions that Mishos complains of—being “isolated and

segregated from her coworkers” and being terminated—were caused by her non-compliance with

the company’s COVID-19 policy, which was put in place prior to her engaging in the alleged

protected activities. (Am. Compl. ¶¶ 28, 144–45, ECF No. 23). She was terminated not for the

emails she sent to her supervisors or HR (assuming for the sake of argument that the emails were

protected activity), but for her refusal to be vaccinated. McKesson stated from the beginning that

employees who did not comply with the vaccination policy would be terminated. (See, e.g., Pl.’s

Ex. A-6, ECF No. 23-1). That policy was put in place on September 13, 2021.

In other words, the cause of the adverse actions already existed two months before Mishos

ever spoke up in opposition to the vaccination requirement (or other COVID-19 policies). See

also Sharikov, 2023 WL 2390360, at *14 (collecting cases with similar fact patterns). Given that

timeline, where the real cause of the adverse action occurred before the protected activity, Mishos

cannot establish a causal connection between the adverse action and the protected activity. See

Trainor v. HEI Hosp., LLC, 699 F.3d 19, 27 (1st Cir. 2012) (“[T]o establish that an adverse

employment action was caused by an employee's protected activity, the employer's decision to act

adversely to the employee must postdate the protected activity.” (citations omitted)); see also

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (per curiam). Accordingly, she has

failed to state a claim for retaliation under the ADA.

V. CONCLUSION

At bottom, it appears that Mishos’ claims under the ADA serve merely as a vehicle to

express her disagreement with the COVID-19 policies that McKesson implemented. (See, e.g.,

Pl.’s Resp. in Opp’n at 4, ECF No. 25) (arguing that the policy “is not only irrational and

unreasonable, it contravenes more than one hundred years of public health policy”). But this Court

need not reach the scientific or public health merits of those policies today, because each of her

ADA claims suffers from fatal flaws. Even when drawing all inferences in Mishos’ favor, she has

failed to establish that she is disabled within the meaning of the ADA, that vaccination status is a

disability-related inquiry, that McKesson has violated her right to medical privacy, or that her

adverse employment actions were caused by her protected activities.

Accordingly, Defendant’s Motion to Dismiss (ECF No. 24) is GRANTED. Plaintiff's

Motion for Leave to File an Amended Complaint (ECF No. 34) is therefore DENIED AS MOOT;

the proposed amendments to her complaint do not address the deficiencies identified herein, such

that the amendment would be futile. This case is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

ALGENO MARBL . [ask

CHIEF UNITED STATES DISTRICT JUDGE

DATE: September 12, 2023

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