Please forgive the ‘legal-speak’, but it’s easiest to share the full body of my final motion for summary judgement as submitted (pasted below). I have heaps and heaps of additional documentation and eager to share.
I have a long clinical career history – began as a Clinic Manager, then an Administrative Director for a small group of clinics, then a Public Health Project Manager for years with the State of Colorado. I had a wall in my office that was completely covered with all of the awards and certifications I’d been awarded.
Despite my award-winning efforts on COVID emergency projects, I was actually vaccine hesitant because of my work in HIV care – I see the staggering numbers moving through our budget via pharma versus other public funding representing a loud and clear conflict of interest. I’d been trained for years as a HIPAA expert and knew that the way this was being managed was certainly illegal.
Additionally, I reported these actions to U.S. Department of Health and Human Services, Office for Civil Rights (OCR) – received under complaint number 26521514. I received a response stating that the matter would not be investigated. My repeated requests to OCR to investigate the case have remained unanswered.
STATE PERSONNEL BOARD, STATE OF COLORADO
Case No. 2022B051
COMPLAINANTS MOTION FOR SUMMARY JUDGMENT
JODY DAVISON,
Complainant,
DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT, Respondent.
Complainant, Jody Davison hereby submits Motion for Summary Judgment
Certificate of Conferral: Pursuant to State Personnel Board Rule 8-47.E., complainant conferred with Respondent regarding the filing of this motion.
Not Fully Vaccinated: Not fully vaccinated means received the final dose of a COVID-19 the Pfizer or Moderna vaccine less than two weeks ago or one dose of a two-dose COVID-19 vaccination series, has not been vaccinated or presented proof of being fully vaccinated or not vaccinated due to medical or religious accommodations Id., at p. 2.
Statement of Policy Beginning September 7, 2021, employees shall attest to and submit proof of their COVID-19 vaccination status. Effective September 20, 2021, employees who have not attested to their fully vaccination status as required, who are in the process of receiving the vaccine until they are fully vaccinated, or who have identified that they are not vaccinated, shall submit to serial testing and report their results on a twice-weekly basis as directed by their department Id., at p. 2.
Testing Not vaccinated employees are required to submit to twice-weekly serial testing and provide test results as directed by their department’s human resources office in compliance with guidance provided by the Department of Personnel & Administration. Employees who fail to provide their vaccine status and documentation in violation of this Policy are also required to submit to twice-weekly serial testing until they are in compliance with this policy. Id., at p. 2.
Confidentiality and Data Security …Asking for proof of vaccination does not violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Id., at p. 4
Appointing Authorities, Managers, Supervisors: Appointing authorities, managers, and supervisors, as delegated, have specific responsibilities which include, but are not limited to,adhering to this Policy, their department’s policy, and supporting employees and individuals in complying with this Policy. Id., at p. 4-5
“If employees choose not to report vaccination status, they will be considered not vaccinated”
“State employees who have not received a COVID-19 vaccination or have not disclosed their vaccination status, are required to begin testing…”
“Testing is the option for the unvaccinated, partially vaccinated or staff with a medical exemption from vaccination for positions that require attestation or testing … for staff who work in a vaccination required position, you may be required to pause work in the office, work in the community, or asked to stop work until the request is reviewed”
“… if you are unvaccinated, partially vaccinated, or do not report your status, then you are required to test…”
“Thank you for providing the request for exemption. We will follow up with additional details in the coming days and weeks. We will review the request and be back in touch if we require any additional information. We will also provide guidance on how your work may be affected while we review the request. While we review the request, no Disciplinary Actions will be taken”
Overview: “…Agencies are strongly encouraged to provide reasonable work accommodations when they do not cause undue hardship or present a direct threat to the workplace” Id., at p. 1.
Working from Home Many jobs can be done from home or another worksite without vaccine mandates. Working away from customers and co-workers could be an appropriate accommodation…” Id., at p. 1.
If you have not been vaccinated “…if you are not vaccinated, or you do not provide documentation of full vaccination, you will be required to participate in mandatory testing. Further instructions will be coming from HR…” Id., at p. 2.
“All workers who have regular contact with the general public are expected and required to submit to periodic testing …” Id., at p. 2.
“Appointing authorities must: … 2. Make the appropriate notifications as required by this policy… 3. Comply with all recordkeeping and confidentiality requirements of this policy.” Id., at p. 2.
“All workers are required to sign acknowledgement of this policy at the time of a required test or vaccination. These forms will be placed in the worker’s official medical records … that are maintained by the Office of Human Resources” Id., at p.3
Colo. R. Civ. P. 56(b) permits a party to file a motion for summary judgment where there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law. Summary judgment permits the parties to pierce the formal allegations of the pleadings and save the time and expense involved in a trial when, as a matter of law and based on undisputed facts, one party could not prevail. Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 238 (Colo. 1984).
The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. Continental Air Lines, Inc., v. Keenan, 731 P.2d 708, 712 (Colo. 1987). This burden is satisfied by demonstrating that there is an absence of evidence in the record to support the nonmoving party’s case. Id. Once the moving party meets this initial burden, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. The nonmoving party cannot rest upon mere allegations or denials; rather, it must present specific facts showing the existence of a genuine and material factual dispute. Id. at 713.
III. There Are No Genuine Disputes of Material Fact Regarding Ms. Davison’s Termination.
Jody Davison moves for summary judgment per evidence that her termination was (1) arbitrary and capricious, and (2) contrary to rule or law.
“A person certified to any class or position in the personnel system may be dismissed, suspended, or otherwise disciplined by the appointing authority . . . for willful misconduct, willful failure or inability to perform his duties . . .” Colo. Const., art. XII, § 13(8); C.R.S. § 24-50-125(1). Where a certified employee timely appeals an appointing authority’s disciplinary action and requests a hearing, the Administrative Law Judge conducting such a hearing must make written findings
of fact and conclusions of law and render an initial decision affirming, modifying, or reversing the disciplinary action. C.R.S. §§ 24-50-125(4) to -125.4(3), C.R.S. (2020); Dep’t of Corr., Denver Reception & Diagnostic Ctr. v. Stiles, 2020 CO 90M, ¶ 29.
The standard of review applicable to a certified employee’s appeal of a disciplinary action is set forth in C.R.S. 24-50-103(6), which provides that a disciplinary action may be reversed or modified if it is “arbitrary, capricious, or contrary to rule or law.” Stiles, ¶ 37. Importantly, the Colorado Supreme Court has clarified that “[u]nlike de novo review, the arbitrary, capricious, or contrary to rule or law standard accords a degree of deference to the appointing authority’s disciplinary action.” Id. at ¶ 3. Accordingly, “in reviewing an appointing authority’s disciplinary action, the ALJ must logically focus on two analytical inquiries: (1) whether the alleged misconduct occurred; and, if it did, (2) whether the appointing authority’s disciplinary action in response to that misconduct was arbitrary, capricious, or contrary to rule or law.” Id. at ¶ 38.
Ms. Davison argues that her termination was arbitrary, capricious and contrary to rule of law. There is no genuine issue of material fact and the undisputed facts demonstrate that CDPHE did not comply with the applicable statutes and personnel procedures. Therefore, Ms. Davison’s termination was arbitrary, capricious, or contrary to rule or law.
As stated in the December 16, 2021 Disciplinary Action, Ms. Forsyth determined that Ms. Davison engaged in insubordination and willful misconduct when she did not attest to her vaccination status. See Exhibits referenced in Respondents Amended Motion for Summary Judgment as:Exhibit 9.
Ms. Davison never received a formal Order to Test per Diagnostic Testing and Vaccination Policy 10.42, nor was considered for reasonable accommodations.
In determining whether a decision is arbitrary or capricious, a court must determine whether the agency has: 1) neglected or refused to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it; 2) failed to give candid and honest consideration of evidence before it on which it is authorized to act in exercising its discretion; or 3) exercised its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable people fairly and honestly considering the evidence must reach contrary conclusions. Lawley v. Dep’t. of Higher Education, 36 P.3d 1239, 1252 (Colo. 2001); see also Stiles, ¶ 44.
Here, there is evidence that Ms. Forsyth did not use reasonable diligence to collect information regarding the appropriate disciplinary action for Ms. Davison’s non-attestation and submission of a religious exemption. See Exhibits referenced in Amended Motion for Summary Judgment as:Exhibit 9; Exhibit 10.
The seriousness of Ms. Davisons non-attestation is defended only by claims of safety risk, yet the fact that people may catch COVID-19 from vaccinated or unvaccinated individuals went unrefuted, and this safety risk depends on public exposure, not attestation.
The act of non-attestation or submission of religious exemption, per Davison’s termination, are not connected to the safety of co-workers and Colorado Communities. Said safety may be determined by level of exposure to others, not submission of vaccination status or lack thereof. The effect of Ms. Davisons non-attestation is only that the State does not hold this PHI, not that the safety of others is impacted.
Said result of non-attestation is that Ms. Davison should be considered unvaccinated. This is not a terminable offense. Additionally, Ms. Davison was not required to pause or stop work nor offered reasonable accommodations while the Religious Exemption request was in review.
Ms. Forsyth determined that “after carefully weighing” the factors set forth in Rule 6-11, Ms. Davison’s “failure to comply with the Universal Policy places the health and safety of [her] co-workers, our Colorado communities, and the population we serve at risk. Therefore, [her] refusal to comply with the Universal Policy and directives could have serious effects. The serious nature of [her] insubordination and misconduct justify termination.” See Exhibits referenced in Amended Motion for Summary Judgment as: Exhibit 9, at p. 4.; Exhibit 10.
Importantly, Ms. Forsyth rendered her disciplinary decision in the context of the unprecedented danger posed by COVID-19, which, as of the issuance of Seventh Amended Public Health Order 20-38 on September 30, 2021, had resulted in the hospitalization of 38,548 Coloradans and the death of another 7,543 Coloradans. See Seventh Amended Public Health Order 20-38 at 1-2.
The realities of the danger posed by COVID-19 and CDPHE’s obligation to protect the health and safety of its employees and those it serves relies upon the or public exposure of individuals, upon which, Ms. Davison’s non-attestation and submission of a religious exemption has no impact.
Arguably, had Ms. Davison been required to report to twice weekly testing, her exposure to others would be greatly increased, as her work was 100% remote and her work did not require her to leave home otherwise.
This dictates a conclusion that her termination was arbitrary and capricious.
Because the undisputed facts demonstrate that non-attestation and submission of a religious exemption are not reasonable reason for termination, Ms. Forsyth’s decision was arbitrary and capricious, Jody Davison is entitled to judgment as a matter of law upholding that decision under C.R.S. § 24-50-103(6).
CDPHE’s decision to terminate Ms. Davison violated rules and policies as stated. As such, Jody Davison is entitled to judgment as a matter of law finding her termination as arbitrary and capricious.
Jody Davison respectfully requests the Board enter summary judgment in favor of Ms. Davison as to her appeal of termination.
Respectfully submitted on this 17th day of March, 2022.
