Man Claims He was Fired by New York Paint Supply Store Over Protected Medical Leave to Treat Colon Cancer

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A former Aboff’s, Inc. employee claims he was discriminatorily fired by the New York paint supply store for taking a legally protected leave of absence related to treating colon cancer, a condition considered to be a disability under federal and state law.

The man further claims in the 12-page suit that Aboff’s failed to pay him and other manual workers not later than seven calendar days after the end of the week in which the pay was earned, in accordance with New York’s labor law.

Aboff’s, a paint and painting supplies retailer with more than 30 locations throughout New York’s Nassau and Suffolk counties, employs drivers, store clerks and other workers involved in the transportation and shipment of products, the lawsuit relays. Per the suit, the plaintiff was diagnosed with colon cancer in April 2019, after which he “promptly notified” the defendant of his diagnosis and need for medical leave to undergo several surgeries and treatment.

Per the complaint, the plaintiff began his medical leave, a protected activity under federal and state law, in May 2019 and kept his employer informed about the status of his disability. The man claims he “repeatedly advised” an Aboff’s general manager in September 2019 of his ability to return to work and expected date of his return.

In response, the manager, the lawsuit alleges, “criticized Plaintiff for certain absences directly related to his cancer treatment” and “callously questioned” whether the company would allow him to return to work due to his medical absences.

In October 2019, the plaintiff contacted the defendant’s human resources department to remind Aboff’s of his return to work in November and confirm receipt of a medical note, according to the case. The lawsuit says the plaintiff was terminated roughly an hour later.

According to the suit, Aboff’s overstepped the Americans with Disabilities Act and New York State Human Rights Law in terminating the plaintiff on the basis of his disability and retaliating against him for engaging in a protected activity, i.e., taking medical leave. 

With regard to the plaintiff’s wage and hour allegations, the lawsuit claims the former Aboff’s employee worked as an hourly paid driver between March 2017 and October 2019. According to the plaintiff, he and other workers performed manual tasks “during the majority of their hours worked,” spending more than 25 percent of their total hours on such duties.

According to the case, however, Aboff’s paid manual workers by check every two weeks instead of “on a weekly basis and not later than seven calendar days after the end of the week in which the wages were earned.” The suit alleges that the painting store’s pay practices, which applied to all employees, violated the New York Labor Law.

The lawsuit looks to certify a class of anyone who works or worked for the defendant in New York within the past six years as an hourly paid driver and/or manual worker or similarly situated employee.

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