PITTSBURGH – Allegheny County and its Sheriff’s Office have won dismissal of 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, 2023 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, 2023, 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.
UPDATE
In a March 13 memorandum opinion, U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon dismissed each of the plaintiff’s individual claims and ordered the case closed – through final judgment levied under Federal Rule of Civil Procedure 58.
“First, the Court finds as untimely Plaintiff’s Title VII claims against defendants. Title VII requires a claimant in Pennsylvania to file a charge with the EEOC within 300 days of the alleged discriminatory act. Taking as true the facts in the amended complaint, the latest possible date of discrimination occurred on Feb. 2, 2022. As such, plaintiff had until Nov. 29, 2022, to file a charge, but waited until Dec. 8, 2022. Thus, plaintiff’s Title VII claim against defendants is dismissed for failure to timely exhaust his administrative remedies. Additionally, the Court finds defendant Allegheny County is not a joint employer as a matter of law. Specifically, the Sheriff’s Office is an ‘independently-elected county official[ ],’ vested with its own ‘powers, duties and responsibilities,’ regarding the ‘hiring, supervising and terminating of all personnel within their respective offices’, like plaintiff – not Allegheny County. The Court finds this issue is identical to that presented in Day v. Westmoreland County, where the court looked to the statutory authority for the county sheriff and held that the county was not considered a joint employer as a matter of law. For these reasons, the Court finds that defendant Allegheny County is not a joint employer and is therefore dismissed,” Bissoon said.
“Next, plaintiff fails to state a claim upon which relief can be granted under any of his constitutional claims. The Supreme Court and the Court of Appeals for the Third Circuit have found vaccine mandates constitutional. Accordingly, the Court finds these cases control, and are dispositive of plaintiff’s constitutional claims.”
Bissoon also found that the plaintiff “has not demonstrated that the religious exemption (or compared against the medical exemption) impermissibly favored secular conduct over religious conduct” and instead, simply relied on “bare averments.”
“Because plaintiff fails to sufficiently plead that the policy is not neutral and generally applicable, rational basis review applies, and easily is met. Specifically, the vaccine mandate is rationally related to the legitimate purpose of stemming the spread of COVID-19 and promoting the health and safety of its employees and the general public with whom they interact. Although the Court finds rational basis review to be appropriate, the vaccine mandate would nonetheless survive under strict scrutiny. The policy is narrowly tailored to serve the compelling government interest of ‘stemming the spread of COVID-19.’Plaintiff asserts defendants could have reached this interest with less restrictive means, such as wearing a mask, weekly testing for the virus, factoring in the effectiveness of his natural immunity or a combination of these options rather than being subjected to the vaccine mandate.”
“However…the policy is narrowly tailored by the least restrictive means because defendants weighed these options and determined that weekly COVID-19 testing and masking would be expensive and/or too difficult to enforce and would negatively impact its policy goal of stopping the spread of this unprecedented virus. Furthermore, the Court agrees that masking and weekly testing would unduly burden defendants by creating unnecessary expenses to ensure each employee’s full and continuous compliance, assuming such measures would be effective. Importantly, plaintiff’s duties as a deputy sheriff caused him to be in close contact to with the general public through ‘law enforcement, arrest and detention, courtroom security, public safety,’ among other duties. For these reasons, the Court finds that the vaccine mandate is narrowly-tailored, using the least restrict means to serve the compelling government interest of stemming the spread of COVID-19 and promoting health and safety.”
Bissoon similarly found the plaintiff’s discrimination and Rehabilitation Act claims unavailing, and ordered them, as well as the case as a whole, dismissed.
The plaintiff was represented by Jeremy Donham of Donham Law in Morgantown, W.Va., Charles J. Hobbs of The Hobbs Law Firm in York and Jesse C. Markley of Markley Law Firm, in Middletown.
The defendants were 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