Firefighter Opposed to Vaccination Loses Discrimination Claim

By Jeffrey Rhodes March 11, 2020

A Texas fire department employee who refused a vaccination on religious grounds and who was offered the options of transferring to a new job or wearing additional safety equipment could not establish religious discrimination by the city, the 5th U.S. Circuit Court of Appeals ruled.

The plaintiff was an ordained Baptist minister and objected to vaccination as a tenet of his religion. The city of Leander Fire Department hired him as a firefighter in April 2012.

In 2014, the department adopted an infection control plan that directed fire department staff to receive flu vaccinations. The plaintiff received an exemption on religious grounds on the condition that he use personal protection equipment to avoid spreading the flu as a first responder.

In 2015, the plaintiff was promoted to the job of a driver/pump operator, which involved driving firefighters to the scene of an emergency and responding to rescue and fire suppression scenes and acting as a first responder for medical and nonmedical emergencies.

In 2016, the city required that staff receive a vaccine that immunizes from tetanus, diphtheria, and pertussis or whooping cough. In January 2016, the plaintiff sought an exemption on religious grounds.

In March 2016, the city offered to accommodate the plaintiff by reassigning him to a code enforcement officer position, which provided the same pay and benefits and did not require a vaccine, with training to be paid for by the city. Alternatively, he could continue to remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times, while on duty; submit to testing for possible diseases when his health condition justified  the need for the tests and keep a log of his temperature.

The city gave the plaintiff one week to decide which option he would select. Four days later, the plaintiff declined the code enforcement job and agreed to take certain protective measures in his current position. However, he proposed that he would wear a respirator only when encountering patients who were coughing or had a history of communicable illness.

The fire chief refused to renegotiate and sent the plaintiff a letter, repeating the original proposal and giving him another week to decide which to select. The plaintiff reiterated his proposal and asked for evidence that wearing a respirator at all times would prevent communication of diseases.

Once the new deadline had passed, the chief determined that the plaintiff was in violation of his directive and that his disobedience justified firing him.

The plaintiff filed suit against the city and the fire chief, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and Texas law, and a violation of his First Amendment right to free exercise of religion. The city and the fire chief moved for summary judgment, which the district court granted. The plaintiff appealed to the 5th Circuit.

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On appeal, the plaintiff argued that the code enforcement position was a nine-to-five job for five days a week with possible overtime, unlike the firefighter position, which required only single 24-hour shifts, allowing time for other employment.

Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee, the 5th Circuit decided. "Allowing transfer to a position with equivalent salary, which may indirectly result in the loss of outside income, cannot be faulted," the court stated.

As for the retaliation claim, the city gave a legitimate, nondiscriminatory reason for the plaintiff's firing—his defiance of a direct order by failing to select an accommodation.

Nor was the First Amendment violated, according to the court. The respirator proposal would have enabled the plaintiff to freely exercise his religion while maintaining his current job, the court said.

The appeals court affirmed the district court's dismissal of the plaintiff's claims.

Horvath v. City of Leander, Texas, 5th Cir., No. 18-51011 (Jan. 13, 2020).

Professional Pointer: Public employers must remember not only to accommodate employees' religious beliefs and practices but also to avoid restricting the free exercise of religion by imposing overly strict employment policies. Ensuring that policy changes are religion-neutral is a necessary first step to avoiding legal claims.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.



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