Labor & Employment Law Daily Firefighter who sought exemption to TDAP vaccine can’t revive Title VII, Free Exercise claims
Thursday, January 16, 2020

Firefighter who sought exemption to TDAP vaccine can’t revive Title VII, Free Exercise claims

By Kathleen Kapusta, J.D.

He was fired for insubordination after he refused the city’s directive to choose one of its proposed accommodations because he believed they were unreasonable.

Offering a firefighter a transfer to a position with an equivalent salary and benefits was a reasonable accommodation to his request for an exemption on religious grounds from the city’s requirement that all personnel receive a TDAP vaccine, the Fifth Circuit ruled, even though the transfer could have resulted in the loss of outside income. Affirming summary judgment against his Title VII and state-law discrimination claims, the appeals court also found that the employee was terminated not for engaging in protected activity but for failing to comply with a directive that conflicted with his religious beliefs when he defied a direct order to select an accommodation. Summary judgment also was affirmed against his Free Exercise claim. Concurring in part and dissenting in part, Judge Ho would have vacated the judgment as to the Free Exercise claim against the city and remanded for further proceedings (Horvath v. City of Leander, Texas, filed January 9, 2020, revised January 13, 2020, Dennis, J.).

Flu vaccine. When the municipal fire department adopted an infection control plan in 2012 that required all department personnel to receive flu vaccines, the firefighter, who was also an ordained Baptist minister, sought and received an exemption on religious grounds that required him to use increased isolation, cleaning, and personal protective equipment. Promoted to driver/pump operator in 2015, he again sought and received another exemption from the flu vaccine directive.

TDAP vaccine. The following year, the city required that all department personnel receive a TDAP vaccine, which immunizes from tetanus, diphtheria, and pertussis. When the employee sought an exemption from this directive on religious grounds, the city gave him two options: reassignment to a code enforcement officer position with the same pay and benefits or remain in his current position and wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases, and keep a temperature log.

Fired. Rather than accept either option, the employee suggested an alternative accommodation: remain in his same position but wear a respirator only when encountering patients who were coughing or had a history of communicable illness. The fire chief rejected his offer, repeating the original proposal. Believing the code enforcement position involved a less favorable work schedule and less desirable job duties, and interfered with his outside business, he refused and was terminated for deliberately refusing to obey a directive from a supervisor.

He sued the city and the fire chief for religious discrimination and retaliation under Title VII and state law and for violations of his First Amendment Free Exercise right. The district court granted summary judgment against all claims.

Religious discrimination. Turning first to the employee’s claim that the city and fire chief failed to offer a reasonable accommodation of his religious beliefs, the appeals court cited to its 2001 decision in Bruff v. N. Miss. Health Servs., Inc., in which it held that a medical center offered a reasonable accommodation to a counselor who asked to be excused from counseling on subjects that conflicted with her religious beliefs by “giv[ing] [her] 30 days, and the assistance of its in-house employment counselor, to find another position at the Center where the likelihood of encountering further conflicts with her religious beliefs would be reduced.” Here, the appeals court noted, the city offered a more generous accommodation: allowing the employee to transfer to a code enforcement position that would not require him to receive vaccinations and which offered the same salary and benefits.

Rejecting the employee’s contention that fact issues existed as to whether this was a reasonable accommodation—he argued that the code enforcement position was the least desirable position in the department because of its duties and hours and that the schedule would prevent him from continuing to run a construction company on the side, which would reduce his total income by half—the appeals court explained that while he and other firefighters might prefer the hours and duties of firefighting, the reduction in his income due to loss of an outside job did not make the accommodation unreasonable. Noting that it found the accommodation in Bruff reasonable even though the proposed transfer required the plaintiff to take a significant salary reduction, the court explained that “allowing transfer to a position with equivalent salary, which may indirectly result in the loss of outside income, cannot be faulted.”

Retaliation. As for his claim he was fired not for refusing to accept the accommodation offer but rather for a letter in which he sought to further negotiate a reasonable accommodation of his religious beliefs, the court assumed he stated a prima facie case of retaliation. In response, the city proffered a legitimate, nondiscriminatory reason for firing him: his defiance of a direct order to select between the accommodations offered. Agreeing with the district court, which found he “was terminated not for engaging in protected activity by opposing a discriminatory practice in a letter, but for failing to comply with a directive that conflicted with his religious beliefs,” the appeals court affirmed the grant of summary judgment as well.

Free Exercise claim. Finally, as to his claim the city and fire chief violated his right to practice his religion through a policy requiring him to wear a respirator mask in lieu of taking the TDAP vaccine, the appeals court found that the respirator requirement was not an official policy but was one of two accommodations offered to him. And even if it was an official policy, his right to freely exercise his religious beliefs was not burdened by the requirement. The respirator proposal, said the court, “did not violate Horvath’s right to freely exercise his religion—instead, it would have enabled him to freely exercise his religion while maintaining his current job.”

Partial concurrence and dissent. In a lengthy concurring and dissenting opinion, Judge Ho argued that while the Supreme Court’s 1990 decision in Employment Division v. Smith has been “widely panned as contrary to the Free Exercise Clause and our Founders’ belief in religion as a cornerstone of civil society,” it is nevertheless binding precedent, but “we should not apply it where it does not belong.” Judge Ho, disagreeing with the district court’s reliance on Smith, pointed out that under Smith, government may regulate religious activity, without having to satisfy strict scrutiny, so long as the regulation is a “neutral law of general applicability.”

“That rule does not apply, however, where government grants exemptions to some but not to others,” he argued, “Religious liberty deserves better than that—even under Smith.” And here, he found it far from clear that the city’s policy was “a neutral law of general applicability.” Believing that factual disputes precluded summary judgment, Judge Ho would have vacated the judgment as to the Free Exercise claim against the city but would affirm as to the fire chief, arguing that qualified immunity barred that claim.

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