PITTSBURGH – Allegheny County and its Sheriff’s Office are seeking to dismiss litigation which alleged that they failed to reasonably accommodate the religious beliefs of one of its employees, when it mandated obtaining vaccination against COVID-19.
David Shim first filed suit in the U.S. District Court for the Western District of Pennsylvania on March 9 versus Allegheny County and the Allegheny County Sheriff’s Office, of Pittsburgh.
Shim was subject to a policy created by defendant Allegheny County and implemented by defendant Allegheny County Sheriff’s Office that required all county employees to be vaccinated against COVID-19 by Dec. 1, 2021, subject to exceptions as required by law.
Shim claimed that the policy discriminated against him based upon his sincerely held religious beliefs and that the Allegheny County Sheriff’s Office failed to reasonably accommodate those beliefs, by not allowing him to substitute vaccination with weekly testing and masking and by denying religious exemptions.
On Aug. 7, the defendants filed a motion to dismiss the complaint, based on a supposed failure to state claims upon which relief could be granted. The motion outlined why, in the defendants’ view, each and every count in the complaint should be dismissed.
“In Pennsylvania, the Pennsylvania Human Relations Commission (PHRC), is a state agency responsible for enforcing the Pennsylvania Human Relations Act, which prohibits discrimination in employment. Because of its existence, the time period in which a filing must be made in Pennsylvania is 300 days. The date of discrimination refers to the date the alleged discriminatory act occurred. Here, at its latest, the alleged date of discrimination is the termination of plaintiff’s position within the Sheriff’s Department, which occurred on Feb. 2, 2022, as per the relevant records, including plaintiff’s complaint,” the dismissal motion stated.
“From the date of the alleged discrimination, the termination on Feb. 2, 2022 being the latest possible date of discrimination, plaintiff had 300 days to either file with the EEOC or with the PHRC. Plaintiff filed with the EEOC and the PHRC on Dec. 8, 2022, as stated in his complaint. The timeframe between Feb. 2, 2022 and Dec.8, 2022, is exactly 309 days. Plaintiff’s claim has expired since he failed to file his complaint within the calculated 300-day extended statute of limitations. Therefore, plaintiff has failed to sufficiently state a claim upon which relief can be granted.”
The motion continued as to why the complaint’s counts should be thrown out.
“Defendant Allegheny Sheriff’s Office did not grant any exemptions or accommodations. The policy set forth by the County of Allegheny and implemented by defendant required all employees to be vaccinated by the stated deadline or else face termination. The policy did not restrict religious speech, only the time, place, and manner of speech. The time and place being while working for the Allegheny Sherriff’s Office and the manner being putting others at risk while working while unvaccinated for COVID-19. Therefore, the restriction was content-neutral and not content-based. Additionally, the policy does not discriminate based on viewpoint as all employees are required to be vaccinated. Since the policy allegedly restricted speech in a government building, a non-public forum, it must only be viewpoint neutral and reasonably related to a government purpose,” per the dismissal motion.
“In this case, plaintiff opines that masking and testing are reasonable alternatives to the vaccine. However, the masking and weekly testing not only unduly burden defendant by creating expenses and potentially causing gaps in employment when plaintiff or others test positive, but it significantly and negatively affects the purpose of the policy. Weekly testing and masking are unlikely to stem the spread of COVID-19 within the workplace or protect the health of employees and the general public. Weekly testing does not guarantee that an individual will not contract COVID directly after testing or within the window between tests and spread COVID throughout the workplace. Additionally, masking is not conducive of the goal of the policy as it is difficult to police, assuming it is effective at all.”
The motion explains that as a deputy sheriff, Shim was subject to physical interaction with not only his peers, but with the general public through law enforcement, arrest and detention, courtroom security, public safety, etc.
The motion added that “since the policy is narrowly-tailored, employing the least restrictive means to serve the compelling state interest of stemming the spread of COVID-19 and promoting health and safety”, the complaint thus also fails to state a claim upon which relief can be granted.
The motion went on to say that the Court should grant the instant motion and dismiss all counts of the plaintiff’s complaint with prejudice, for failure to state a claim upon which relief can be granted – or in the alternative, the Court should grant the instant motion and dismiss all counts of the plaintiff’s complaint without prejudice, allowing the plaintiff leave to file an amended complaint within 20 days, addressing the pleading deficiencies to all counts.
For counts of violating Title VII of the Civil Rights Act, violating the Establishment, Free Speech and Free Exercises Clauses of the First Amendment to the U.S. Constitution, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and discrimination under the Rehabilitation Act, the plaintiff is seeking reinstatement, judgments and injunctions declaring the defendants’ actions to be unlawful and in violation of Title VII of the Civil Rights Act and the Rehabilitation Act, compensatory damages, punitive damages, attorney’s fees, costs and additional relief as may be just and proper.
The plaintiff is represented by Jeremy Donham of Donham Law in Morgantown, W.Va., plus Charles J. Hobbs of The Hobbs Law Firm, in York.
The defendants are represented by Frances M. Liebenguth and Virginia Spencer Scott of the Allegheny County Law Department, plus John P. Goodrich of Goodrich & Associates, all in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00393
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com