PITTSBURGH – Allegheny County argues that it did not violate its own Home Rule Charter and Administrative Code and that it is immune from a count of negligent infliction of emotional distress, in a lawsuit over its COVID-19 vaccine mandate allegedly violating a plaintiff’s religious objections.
Daniel Lieb first filed suit in the U.S. District Court for the Western District of Pennsylvania on March 10 versus Allegheny County and Allegheny County Executive Rich Fitzgerald. All parties are of Pittsburgh.
“Plaintiff was hired by the Allegheny County Bureau of Corrections on Jan. 8, 2007. There were no vaccination requirements required as conditions of employment, based on a collective bargaining agreement. Plaintiff worked primarily in housing units before moving to the Supply Department. Plaintiff’s duties were integral to the overall operations of the corrections system, particularly related to distribution of hygiene products, sanitation and orderly functions of the facilities. Plaintiff was employed by Allegheny County for 15 years, and had only two minor disciplinary infractions in that entire span (2008 and 2017). Plaintiff planned to retire with the county,” the suit alleged.
“Defendant Fitzgerald is the county's top elected official. He’s held the position since 2012, and will leave due to term limits in January 2024. Fitzgerald has a personal affinity, perhaps even an obsession with the COVID-19 vaccines. He not only participated in clinical trials for Moderna COVID-19 vaccines at the University of Pittsburgh, prior to the COVID-19 vaccines receiving emergency use authorization from the U.S. Food and Drug Administration in December 2020, but he also frequently promoted the injections via his social media channels. Fitzgerald announced in March 2021 that he began offering $100 bribe-like payments to any/all Allegheny County employees who voluntarily received the COVID-19 vaccines. Fitzgerald admitted in an Aug. 10, 2021 article that collective bargaining issues will make it difficult to mandate COVID-19 vaccines for current Allegheny County employees, as he had for all new employees. Defendants also failed to address the growing data on safety issues with the vaccines at that time.”
The suit further alleged that despite warnings of blood clots and cardiac issues associated with the major COVID-19 vaccination variations, the defendants pushed ahead with a vaccine mandate for all county employees.
“Defendants emailed all Allegheny County employees a memo on Aug. 6, 2021. It said, ‘Effective Monday, Aug. 9, 2021, all Allegheny County employees must get a COVID-19 vaccination or be subject to a mask requirement and regular COVID-19 testing.’ The memo also stated that religious and medical exemptions will be allowed "in accordance with state and federal law.’ All employees were given a deadline of Dec. 1, 2021 to receive the injections, or be terminated from their positions. Plaintiff, despite being highly uncomfortable discussing his spirituality and personal relationship with God in a work setting, submitted his request for an exemption from the COVID-19 vaccines due to his sincerely-held religious beliefs to Employee Relations Manager Nichole Nagle on Oct. 12, 2021,” the suit stated.
“A supplemental memorandum to the religious exemption request was submitted on Oct. 13, 2021. Plaintiff reasonably expressed his concerns about safety issues with the COVID-19 vaccines. He also expressed his willingness to undergo weekly COVID-19 testing, which is a stated reasonable accommodation for religious exemptions in the Aug. 6, 2021 memo. The foregoing accommodations were also the same accommodations utilized throughout 2020 when corrections officers continued working during the height of the pandemic as ‘essential workers.’ Plaintiff cited many reasons as to why the mRNA injections violate his sincerely-held religious beliefs, primarily due to his body being a Temple of God, and that both the mRNA and viral vector DNA injections are ‘foreign bodies being inserted into my body.”
The plaintiff alleged that COVID-19 vaccines both contain aborted human fetal cells and alters a person’s genetic code, thus altering the perfect creation of God.
In the words of the plaintiff, “It is abominable for [the plaintiff] to even fathom injecting fetal-cell-derived materials and chemicals that change God’s perfect creation into his body.”
“Plaintiff received a letter from Allegheny County Human Resources Director Laura Zaspel via USPS on Nov. 29, 2021. The letter is dated Nov. 24, 2021. The letter stated that the county has ‘decided to deny your request to be exempted from the COVID-19 vaccination requirement.’ Defendants cited ‘workplace safety, safety of members of public, infringement on other employee's job rights, etc.’ The denial letter is a form/template letter sent to all Allegheny County employees who requested religious exemptions. All Allegheny County employees who requested religious exemptions from the COVID-19 vaccines, as of Nov. 4, 2022, were denied with the exact same denial letter,” the suit continued.
“Plaintiff emailed Zaspel, Nagle and others, requesting to appeal the decision that same day. The request was ignored. Pursuant to Cleveland Board of Education v. Loudermill, the plaintiff, as a public employee, had a ‘Loudermill hearing’ on Dec. 1, 2021, which was only two days after the plaintiff received the letter denying his religious exemption request. The plaintiff, Union Representative Charles Claypool, Hearing Officer Dwight Edwards and Deputy Warden Laura Williams were present for the hearing. Plaintiff, at the hearing, requested a 30-day grace or extension period to evaluate the situation further. He also requested proof from the county that granting his religious exemption request would, among other things, ‘impair workplace safety.”
But the defendants terminated the plaintiff’s employment on Dec. 2, 2021, and despite his providing them with a LabCorp report explaining he possessed natural antibodies in response to COVID-19, they never contacted him again.
UPDATE
Allegheny County filed a partial motion to dismiss on May 18, seeking to dismiss Count II and Count III of the litigation.
“Plaintiff alleges in Count II of his complaint that defendant Fitzgerald in his official capacity as County Executive violated the Allegheny County Home Rule Charter and Administrative Code by implementing a COVID-19 vaccination mandate for executive branch employees without the input of County Council. However, the facts alleged in the complaint do not support this conclusion and do not articulate a violation of either the HRC or the AC Code,” the motion stated.
“Plaintiff cites to the provision in the HRC that sets forth County Council’s power to adopt, amend and repeal ordinances, resolutions, and motions as the basis for his claims. However, the COVID-19 vaccination mandate is an employment policy that applies solely to employees serving under the Executive – not an ordinance, resolution, or motion. Plaintiff has cited to no provision of the HRC or AC Code that would require the County Executive to obtain input or approval from County Council prior to implementing an employment policy applicable to Executive Branch employees. Furthermore, the AC Code and HRC vest the County Executive with authority to implement employment policies.”
The motion further asserted that Allegheny County is immune from the negligent infliction of emotional distress count under the Political Subdivision Tort Claims Act.
For counts of religious discrimination in violation of Title VII of the Civil Rights Act of 1964, violation of the Allegheny County Home Rule Charter and Administrative Code and negligent infliction of emotional distress, the plaintiff is seeking a declaratory judgment that Fitzgerald unlawfully exceeded his statutory authority by implementing a county-wide COVID-19 vaccine mandate for all employees, compensatory damages including lost wages, back pay, interest, pecuniary and punitive damages, all costs of this action, all such relief under Title VII and all other relief as the Court deems fair and equitable.
The plaintiff is representing himself in this matter.
The defendants are represented by Frances M. Liebenguth and Virginia Spencer Scott of the Allegheny County Law Department, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00409
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com