ALLENTOWN – A group of current and former employees from the University of Pennsylvania Health System who believed that forcible disclosure of their vaccination status violated their constitutional rights, have lost their case.
Pennsylvania Informed Consent Advocates, Inc. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 7 versus the University of Pennsylvania Health System, U.S. Secretary of Labor Scott Ketcham and U.S. Secretary of Health and Human Services Xavier Becerra.
“This civil action arises out of the defendants’ flagrant disregard for the constitutional rights of American citizens in their attempt to compel vaccinations. Through the actions of defendants’ and other non-party individuals and entities, vaccines have been politicized to a point where receiving or declining a vaccine has become a political act in the eyes of the public, and being compelled into discussing one’s vaccine status is compelling that person to engage in political speech,” the suit said.
“By forcing its employees to disclose their vaccine status, University of Pennsylvania Health System is acting as a state actor when compelling political speech in violation of the First Amendment to the United States Constitution. By requiring workers across America to disclose their vaccination status, defendants Ketcham and Becerra are forcing them to engage in un-sought-out and individually undesirable political speech in violation of the First Amendment.”
The suit stated that the members of the plaintiff are “medical professionals who have chosen, for various reasons, to refuse vaccination, or have refused to disclose their COVID-19 vaccination status to others, and UPHS seeks to coerce plaintiff’s members to engage in political speech in compelling such disclosure by threat to their livelihoods, and to the well-being and fiscal security of persons dependent on plaintiff members’ jobs for their survival.”
The suit added that the plaintiff’s members have “sincere, bona fide beliefs in opposition to the vaccine which are religious, quasi-religious or personal in nature” and are thus covered by Title VII of the Civil Rights Act of 1964.
“On or about March 25, 2021, various federal agencies, including the Departments of Labor and Health and Human Services began publicity drives to encourage and entice private corporations to act as government agents to require full vaccination as a condition to employment. These efforts have gradually ramped up in intensity culminating with President Joseph R. Biden instructing government agencies overseen by Ketcham and Becerra (OSHA and CMS) to draft regulations to require private businesses under their purview to mandate vaccination against COVID-19 thereby making these businesses, if they were not already, government agents and thus government ‘actors’ under the law,” per the suit.
“The aforementioned mandates are expected to take effect sometime in the near future, though extensive publicity, and the subsequent behavior of UPHS, has demonstrated clearly that UPHS considers the coming formal regulation already de facto the law of the land. As an organization with over 100 employees, and a health care provider, UPHS has become a government agent by anticipating and implementing the formal requirements outlined by President Biden. UPHS adopted those requirements in anticipation of formal agency-authored regulations in the future that will formalize what UPHS has already accepted is a presidential decree that it mandate vaccination for all employees.”
The suit said that after the aforementioned publicity drive, on May 19, 2021, UPHS began to require all employees (including members of the plaintiff corporation) to fully vaccinate against COVID-19 before Sept. 1, 2021 or face adverse employment action, up to and including termination.
“UPHS then began a harassment/embarrassment/shaming campaign against all unvaccinated employees which continues to this day. Pursuant to its threat to punish the unvaccinated, UPHS has formally dismissed or terminated the contracts of a number of plaintiff’s members. Such corporate disciplinary action is arbitrary, is not easily appealed, and is not narrowly tailored to fulfilling the goals of ending the COVID-19 pandemic,” the suit stated.
“Because of its intensely toxic political nature, disclosing one’s COVID-19 vaccination status holds the intent, weight, and social effect of partisan political speech, and should be treated as such by this Honorable Court.”
The University of Pennsylvania counter-filed a motion to dismiss the case on Nov. 3, claiming a lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
“First, the constitutional claims in Counts I–III fail out of the gate because UPHS is a private institution, not a state actor. Indeed, as discussed below, courts recently dismissed constitutional claims brought against other private hospital systems that implemented COVID-19 vaccine mandates, correctly holding the hospitals’ conduct is not subject to constitutional constraints. Second, requiring employees to show proof of vaccination is not ‘compelled political speech,’ as alleged in Count I. Indeed, such an argument is both illogical, contrary to established First Amendment jurisprudence and cases specifically holding that disclosure of vaccination status is conduct, not expressive speech,” the dismissal motion stated.
“Third, plaintiff’s claim in Count II that UPHS violated the Free Exercise Clause of the First Amendment fails because, as various courts have already held, employers do not have a constitutional obligation to offer a religious exemption to a COVID-19 vaccination requirement. Still, UPHS does offer such an exemption to qualified personnel. Fourth, plaintiff’s claim in Count III that the vaccination mandate violates the Fourteenth Amendment rights to ‘privacy and body autonomy’ is foreclosed by Jacobson v. Massachusetts, as well as the multitude of recent decisions applying Jacobson in the context of COVID-19 vaccination cases.”
According to the university, the complaint is “fatally flawed for failure to establish organizational standing” and “does not identify even a single member who allegedly suffered harm because of the vaccination mandate, as required.”
“Sixth, as a threshold matter, plaintiffs’ wrongful dismissal claim in Count IV should be dismissed for failure to exhaust administrative remedies under the Pennsylvania Human Relations Act, which pre-empts any purported common law claim for wrongful termination. And, plaintiff does not even attempt to show the vaccination mandate violates a clearly-stated Pennsylvania public policy overcoming the at-will employment doctrine,” the motion stated.
“Challenges to COVID-19 vaccination mandates have been summarily rejected by courts around the country, and plaintiff’s specious claims should meet the same fate.”
Counsel for the plaintiffs responded to the dismissal motion on Nov. 24, countering that their original claims stand on constitutional authority.
“UPHS fundamentally and intentionally misconstrues what plaintiff alleges and has set up a ‘straw man’ to attack in its motion to dismiss. In fact, plaintiff alleges that the previously non-expressive act of disclosing one’s vaccination status has acquired the social and political effect and understanding of an expressive act and should therefore be treated as such by this Honorable Court,” the response said.
“Plaintiff is not attempting to pass off a non-expressive statement as expressive and therefore protected by the First Amendment. Plaintiff is asserting that the specific facts of this case, coupled with the politically charged nature of the COVID-19 vaccine, transforms plaintiff’s non-expressive compelled acts into constitutionally-protected expressive acts.”
The plaintiffs reasserted that they hold First Amendment rights to avoid COVID-19 vaccination and that their Fourteenth Amendment rights to bodily autonomy would be violated through compulsory vaccination mandates.
In a June 28 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Jeffrey L. Schmehl dismissed UPHS from the lawsuit.
“Plaintiff can only bring constitutional claims against a government actor, not a private entity. Although plaintiff argues UPHS became a state actor by instituting its vaccine mandate, plaintiff has not adequately pled any facts to support that contention. Accordingly, I find UPHS is not a state actor and will dismiss plaintiff’s constitutional claims with prejudice as to UPHS only. I also find plaintiff has failed to exhaust its administrative remedies as to its wrongful discharge claim and will also dismiss this claim,” Schmehl said.
“Plaintiff’s complaint contains no allegations showing that UPHS has performed a traditional, exclusive public function. To the contrary, plaintiff’s complaint merely states that ‘UPHS became a state actor after providing, administering, and requiring federally-funded SARS-CoV-2 vaccinations.’ This allegation does not in any way demonstrate that UPHS was performing traditional, exclusive public functions. Accordingly, UPHS cannot be a state actor under the first of the three tests.”
Schmehl added that a review of the complaint shows, without any factual support in the judge’s view, that UPHS “adopted a COVID-19 vaccine mandate in May of 2021 because of some anticipated federal regulation that was not yet in existence”, which was “insufficient to make UPHS a state actor” – and further, that the complaint “does not allege that any government official was in contact with UPHS regarding its vaccine mandate, or acting together with UPHS when it enacted its vaccine mandate.”
“Plaintiff’s complaint is completely lacking any factual allegations that could possibly support UPHS being a joint participant with the government in developing its vaccine mandate. Rather, plaintiff’s complaint focuses on the fact that the federal government encouraged COVID-19 vaccination and was considering future regulation of vaccination,” Schmehl stated.
“This is clearly insufficient to prove such ‘interdependence’ between the government and UPHS such that the government ‘must be recognized as a joint participant’ in UPHS’s vaccine mandate. Accordingly, UPHS is not a state actor under the third part of the three-part test, and plaintiff’s constitutional claims against it must be dismissed.”
Schmehl added that though the plaintiff “attempts to present its wrongful discharge claim as a common law issue, said claim is still subject to the exhaustion requirement of the PHRA, and as plaintiff failed to file its wrongful discharge claim with the PHRA, it has failed to exhaust administrative remedies, and this claim must be dismissed.”
UPDATE
Schmehl further ruled on Aug. 1 that the case itself was dismissed in its entirety, as proper service had not been made to the remaining defendants in the action, Ketcham and Becerra.
“Upon review of the dockets in this matter, it is hereby ordered that plaintiff’s complaint is dismissed as to defendants Scott Ketcham, United States Secretary of Labor, and Xavier Becerra, United States Secretary of Health and Human Services, due to plaintiff’s failure to effectuate proper service upon them. The Clerk shall mark this case closed,” Schmehl ordered.
The plaintiff was represented by Bruce L. Castor Jr. of van der Veen O’Neill Hartshorn & Levin, in Philadelphia.
The UPHS defendants were represented by Aliza R. Karetnick of Ballard Spahr, also in Philadelphia. Ketcham and Becerra never retained counsel.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-04415
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com