PITTSBURGH – Allegheny County is seeking to dismiss litigation from a veteran corrections officer who alleged she was fired for refusing to receive the COVID-19 vaccine, a treatment she wouldn’t consent to because she believes it violates her sincerely-held religious beliefs.
Alexis Anderson first filed suit in U.S. District Court for the Western District of Pennsylvania on Dec. 8 versus Allegheny County.
The plaintiffs stated she has been a lifelong devout member of the Christian Pentecostal Church, leading her to oppose abortion and the mandate to receive the COVID-19 vaccine, since the vaccine contains fetal cells. This led the plaintiff to seek a religious exemption to receiving the vaccine.
“At no time did defendant ever engage in any interactive process with plaintiff to determine whether there existed any reasonable accommodations for her sincerely-held religious beliefs. It is believed and therefore averred that the defendant never had any intention of granting plaintiff’s religious exemption. Rather, the defendant’s intention was to deny all or as many exemptions as possible and force of its workforce to be vaccinated,” the suit said.
“It is believed and therefore averred that defendant had supplied plaintiff with reasonable accommodations in the form of personal protection equipment, social distancing and/or sanitizing throughout the pandemic. These reasonable accommodations suddenly became an undue hardship when the vaccine mandate was put into place on Dec. 1, 2021. Defendant does not require visitors and/or inmates in its facility to be vaccinated. Respondent was allowed to continue to work until Dec. 27, 2021. On that day, defendant informed plaintiff that she was immediately terminated. Her termination was solely due to her unvaccinated status. Defendant perceived plaintiff as disabled due to her unvaccinated status. Plaintiff offered to continue to use the reasonable accommodations listed above in lieu of getting the COVID-19 vaccine. Defendant ignored her requests and she was terminated.”
The suit continued that the defendant’s sole reason given for denying plaintiff’s religious exemption was it would create an undue hardship on Allegheny County. Anderson’s tenure at the jail lasted from Jan. 8, 2007 until Nov. 22, 2021, per the suit.
“Despite Ms. Anderson’s request or accommodation of her sincerely-held religious beliefs and/or pre-existing medical conditions, defendant refused to accommodate Ms. Anderson. Defendant failed to engage in the interactive process with plaintiff. Defendant did not offer an alternative accommodation to Ms. Anderson requests other than discharge,” the suit stated.
“Rather, in a letter, defendant simply fired Ms. Anderson because the accommodation would cause an undue hardship. When defendant instituted the vaccine mandate, all versions of the available vaccine to plaintiff were not fully approved by the Food and Drug Administration, but were issued under EUA statutes, which means plaintiff had the right to accept or reject the vaccine without consequence. Defendant’s mandate violated federal law. At no time did defendant explain the rules and benefits of the vaccine to plaintiff to allow her to make an informed choice.”
UPDATE
After the plaintiff amended their complaint twice in the intervening months, Allegheny County filed a partial motion to dismiss the case on July 7.
“Plaintiff Anderson has not preserved an ADA claim at the EEOC level and has therefore failed to exhaust her administrative remedies as to this claim. Count III of plaintiff’s lawsuit must be dismissed because she did not exhaust her administrative remedies with regard to her ADA claim. In general, before an ADA action can be filed in federal court, a plaintiff must exhaust administrative remedies by filing a complaint with the EEOC. Plaintiff’s EEOC charge does not include an ADA claim,” according to the dismissal motion.
“Plaintiff Anderson provided no facts to suggest an ADA claim at the administrative level and has therefore failed to exhaust her administrative remedies as to her ADA claim. Plaintiff Anderson’s Pennsylvania Human Relations Commission charge only indicates that she was allegedly discriminated against on the basis of religion and retaliation. There are no facts in the PHRC complaint relating to disability or perceived disability. A fair reading of the PHRC complaint illustrates that an ADA claim was not within the scope of the complaint. Plaintiff Anderson has not exhausted her administrative remedies with respect to an ADA claim. Accordingly, Count III should be dismissed with prejudice.”
The motion added that even if Anderson “had properly exhausted administrative remedies with respect to her ADA claim, she still fails to state a cause of action in her second amended complaint,” and that “the plaintiff states with no factual support that defendant fired plaintiff because defendant perceived her as disabled under the ADA.”
Furthermore, the plaintiff claimed that her unvaccinated status is a disability and the defendant “failed to engage in the interactive process to discuss her perceived disability in violation of the ADA” – a sentiment the defendants disagreed with, arguing that the plaintiff failed to properly plead a retaliation claim.
Likewise, the defendant argued that the plaintiff failed to allege a wrongful discharge claim under the Federal Food, Drug, and Cosmetic Act and that because “all three of the currently available vaccines are subject to Emergency Use under the Emergency Use Authorization statute, the statute prohibits defendant (or any other entity) from making the COVID-19 vaccines mandatory.”
“First, plaintiff’s contentions that no vaccine had been approved by the FDA at the time the policy was implemented is false and has been rejected by the courts including by Judge Bissoon in this District in ruling on the very same policy at issue here. Second, there is no right to bring a private action to enforce the EUA, as every court to address the issue has held. Third, the EUA statute does regulate the conduct of employers implementing a vaccination policy. It applies to the secretary of health and human services and medical providers who administer the vaccine. Fourth, The County did not force plaintiff (or any employee) to receive a vaccination. Plaintiff in fact, did not receive one,” the dismissal motion continued.
“Plaintiff’s second amended complaint seeks punitive damages against Allegheny County. However, punitive damages are not recoverable against Allegheny County. Plaintiff’s claim for punitive damages must be dismissed with prejudice. OSHA regulations do not apply to Pennsylvania state and local governments. Furthermore, the OSHA regulations specifically state that OSHA does not enforce or administer laws regarding accommodation under Title VII or ADA ‘…if the vaccination, and/or testing for COVID–19, and/or wearing a face covering conflicts with a sincerely held religious belief, practice or observance, a worker may be entitled to a reasonable accommodation. Such accommodations exist independently of the Occupational Safety and Health Act and, therefore, OSHA does not administer or enforce these laws.’ Thus, all averments in the complaint that relate to OSHA have no bearing on whether Allegheny County may have any liability in this case. Allegheny County would be unfairly prejudiced if it were required to defend these allegations. These averments must be stricken.”
For counts of discrimination and retaliation through violating Title VII of the Civil Rights Act of 1964, violating the Emergency Use Authorization statute and violating the Americans with Disabilities Act of 1990, the plaintiff is seeking a judgment declaring the defendant’s actions to be unlawful and in violation of the ADA, that the defendant be ordered to reinstate the plaintiff and provide her accumulated seniority, fringe benefits and all other rights, reimbursement of lost wages, pension and other benefits, compensatory and punitive damages, an injunction preventing the defendant from continuing to violate the ADA, costs, expenses, reasonable attorney’s fees and additional relief as may be just and proper.
The plaintiff is represented by James L. Welsh III of WK Law, in Murrysville.
The defendant is represented by Virginia Spencer Scott and Frances M. Liebenguth of the Allegheny County Law Department, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01757
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com