THE Commonwealth’s Covid-19 vaccination mandate or Governor’s Directive 2021-002 is not discriminatory, Assistant Attorney General Abbi Novotny said.
Novotny is opposing the preliminary injunction of nine former firefighters who were terminated for refusing to take Covid-19 vaccine.
The plaintiffs, through attorney Joseph Horey, have asked the Superior Court for an order reinstating them in their previous jobs until a decision has been reached in their lawsuit against the Department of Fire and Emergency Medical Services and DFEMS Commissioner Dennis Mendiola in his official capacity.
Novotny, who represents DFEMS and Mendiola, said the plaintiffs allege discrimination because they are treated differently than employees with disabilities or a sincerely held religious belief.
“But to properly plead that Directive 2021-002 was discriminatory, the plaintiffs must show that it had: (1) a discriminatory effect on a specific group of people; and (2) the discrimination was intentional or motivated by a discriminatory purpose,” she said.
To show a discriminatory effect, the plaintiffs must show that similarly situated individuals were protected by the directive, Novotny added.
“First, all executive agency employees were mandated to receive the vaccination. All unvaccinated employees were subject to termination. All executive employees noticed that executive agency employees would be medically and religiously exempt from the vaccination mandate per Equal Employment Opportunity Commission guidelines.
“Plaintiffs compare themselves to unvaccinated employees that claimed a religious or medical exemption. However, those employees are not similarly situated to the plaintiffs because the plaintiffs have stated numerous times that they are not claiming a religious or medical exemption. The employees similarly situated to the plaintiffs are other unvaccinated employees that are not claiming a religious or medical exemption; the directive does nothing to protect those employees, and they were terminated.”
Novotny said the plaintiffs have not shown that they are a suspect class, nor that a fundamental right has been burdened.
“Neither have they shown all unvaccinated employees have suffered a discriminatory effect or that there is a discriminatory purpose for the Directive. Thus, the plaintiffs are unlikely to succeed on the merits of their equal protection claim.”
According to Novotny, the plaintiffs “convolute this matter by alleging that employers must afford their ‘personal medical beliefs about the vaccination’ the same protection as Title VII of the Civil Rights Act of 1964 and American Disabilities Act claim for religious or medical exemptions.”
“Their allegation is incorrect,” she said.
Under Title VII and the ADA, the EEOC requires employers to grant exemptions for Covid-19 for employees that have a disability or a sincerely held religious belief, practice, or observance, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business, Novotny said.
There is no legal support for the plaintiffs’ claim that DFEMS must provide an exemption for the plaintiffs for their personal beliefs, nor that those personal beliefs are comparable to a sincerely held religious belief, Novotny added.
She said it is undisputed that the plaintiffs have a protected interest in their employment: They are civil service employees who cannot be terminated without “such cause as will promote the efficiency of the service.”
Here, she added, “plaintiffs were terminated for insubordination because they refused to adhere to the Governor’s mandated vaccination directive.”
Under NMI Administrative Code 10.20.257, Novotny said an employer must give an employee 30-day notice of a potential adverse action and an opportunity to respond.
“If the employee responds, the employer reviews the response and then issues a final decision. Employees can appeal the final decision to the Civil Service Commission. CSC can hold an administrative hearing before it issues a decision; if the employee disagrees with CSC’s decision, they can file a petition for judicial review of the agency action under 1 CMC § 9112(b).”
The plaintiffs have received this process, Novotny said.
Their allegation that they are entitled to “adherence to the conditions established for the product’s administrative, including specifically advising the recipient that the injection is voluntary is not supported by any legal authority, Commonwealth statute, regulation, policy, 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III), or the Federal Drug Administration guideline itself; there is nothing which imposes a burden on the employer regarding a product administration for the plaintiffs,” the assistant AG said.
“The FDA website states that FDA guidelines do not create or confer a right on any person. Second, the FDA guideline that the plaintiffs are relying on is a Fact Sheet titled: ‘For Healthcare Providers Administering Vaccine (Vaccination Providers).’
“Thus, the FDA fact sheet and 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) do not create a protected interest in the plaintiffs’ employment,” Novotny said.
The defendants are not healthcare providers, nor have the plaintiffs sued the healthcare or vaccine provider administering the vaccination, she added.
She said the governor’s directive and the initial notice of an adverse action notified the plaintiffs that they would be terminated for failing to vaccinate.
“The fact sheet does not give the plaintiffs hearing, grievance, or appeal rights. Nor is there explicit mandatory language that defendants must notice the plaintiffs of a right to refuse the vaccination or that employers cannot terminate employees that refuse vaccination.”
She said the plaintiffs “disingenuously redact important words from 21 U.S.C. § 360bbb-3- Authorization for medical products for use in emergencies. This provision explicitly addresses the Secretary of the United States Department of Health and Human Services responsibilities when authorizing emergency use products. The Secretary is responsible for ensuring that when it is practicable, recipients are informed that they have a right to refuse the vaccination and that there may be consequences for that refusal.”
The plaintiffs have not sued the secretary of USDHHS or the USDHHS, nor is the language mandatory since it says when practicable, Novotny added.
“Plaintiffs’ allegation that the FDA fact sheet and 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) create a protected interest in their public employment is frivolous and without merit,” she said.
“It is unlikely that the plaintiffs will show a violation of any of their constitutional rights.”
And there is no debate that the defendants have the responsibility to continue to keep members of the public safe from Covid-19 by not exposing them to unvaccinated firefighters that are legally obligated to respond to any emergency, Novotny added.
“Because plaintiffs are unlikely to succeed on the merits of their case and the defendant has the responsibility to protect the public, there can be no argument that the balance of harms caused by a preliminary injunction weigh in favor of defendant,” Novotny said.
The terminated firefighters are asking the court to issue an order declaring their termination invalid and unlawful, and to set it aside.
The plaintiffs sued for violation of their constitutional rights to privacy, due process, deprivation of rights and property, and violations of equal protection of the laws.
The plaintiffs also want the court to issue an injunctive relief, reinstating them as firefighters, with back pay and cost of suit.
The plaintiffs are Paul T. Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Argernon A. Flores, Derek B. Gersonde, Shawn DLR. Kaipat, Philip M. Kalen and Adam J. Safer.
Superior Court Associate Judge Joseph Camacho has scheduled a hearing for July 6.
