PITTSBURGH – A local man maintains that an Allegheny County official exceeded the bounds of his authority when he instituted a COVID-19 vaccine mandate for all county employees in the summer of 2021, in violation of his religious objections and exemption.
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.
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.
UPDATE
On June 20, the plaintiff responded to the dismissal motion and explained that only declaratory relief, not “a private right of action” was being sought in Count II of the complaint and that the Court should deny the defendants’ attempt to dismiss Count III as moot – since the plaintiff already stipulated to dismiss the claims for punitive damages and negligent infliction of emotional distress.
“Plaintiff is asking this Court to affirm via declaration, the findings of the Pennsylvania Labor Relations Board (PLRB). PLRB, on May 16, 2023. The decision is new, highly-relevant information to this case. PLRB issued the order in the case of Allegheny County Prison Employee Independent Union (ACPEIU) vs. Allegheny County. Plaintiff is a member of ACPEIU,” the response filing stated.
“PLRB ruled and sustained: ‘Finally, the Union asserts that the Hearing Examiner erred in holding that the Vaccine Policy was not a new form of discipline because it exposes officers to potential discipline for conduct not previously chargeable, i.e. termination from employment for failure to get a vaccine. In this regard, the board agrees...the correctional officers were not previously subject to discipline for failure to receive a vaccine and, therefore, the Vaccine Policy’s disciplinary consequences of refusing the COVID-19 vaccine are an impact severable from the policy itself, and as such, subject to bargaining...Therefore, the Union's exception on this issue is sustained, in part, and denied, in part. Accordingly, the Hearing Examiner’s conclusion that the Vaccine Policy was not a new form of discipline is vacated.”
According to the plaintiff, the “unilateral, arbitrary and capricious COVID-19 vaccine mandate issued by defendant Fitzgerald unlawfully changed the terms and conditions of the plaintiff’s employment.”
“Neither the HRC nor the AC grant Fitzgerald the power to override collectively bargained terms and conditions of employment. And even if the County Council had voted in favor of a vaccine mandate that terminates union corrections officers for refusing on religious grounds, like the plaintiff, said policy would still be unlawful,” the filing stated.
“Plaintiff has not invoked a private right to action pursuant to the HRC or AC. The plaintiff has respectfully requested that this Court grant declaratory relief, ruling that neither the HRC, nor the AC, gives defendant Fitzgerald the unilateral power to override collectively bargained employment terms and conditions. And now with the new information from the May 16, 2023 PLRB decision, plaintiff also seeks a declaratory judgment, affirming said findings.”
The plaintiff also accused the defendants of having “continually taken malicious actions to cause unnecessary delay and needlessly increase the cost of litigation in this case.”
“Defendants have also made false and/or misleading statements in pleadings presented to this Court. A separate motion for sanctions to deter repetition of the defendants’ conduct is forthcoming,” per the plaintiff.
For counts of religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and violation of the Allegheny County Home Rule Charter and Administrative Code, 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, and pecuniary 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