Asheville board upholds employee firings over vaccine mandate

Asheville City Hall
THEM'S THE RULES: Asheville's Civil Service Board unanimously upheld the firing of five employees who refused to comply with the city's COVID-19 "test-or-vaccinate" policy in a Feb. 22 ruling. Photo by Jennifer Castillo

Employees with the city of Asheville are no longer required to be vaccinated against COVID-19 or get tested weekly for the disease, following an indefinite suspension of the city’s “test-or-vaccinate” policy March 2. But five Asheville government workers who were fired in October after violating that policy will remain out of a job following a unanimous Feb. 22 ruling by the city’s Civil Service Board.

The volunteer board, which has authority over employee grievances, agreed with the city’s argument that the five workers had shown insubordination by refusing vaccination or testing. In accordance with Asheville due process rules around terminations, the employees — a firefighter, a police officer, a sanitation worker and two Parks and Recreation Department workers — had been given a formal warning, followed by five days of suspension without pay, before being dismissed.

Lakota Denton, the Asheville-based attorney representing the employees, did not deny the insubordination charge. Instead, he argued that their terminations were unjust because the city’s policy was not based on sound medical science.

“There’s a major disagreement here on whether or not vaccines prevent the spread of COVID,” Denton said. He had intended to call multiple witnesses, including nationally known Texas cardiologist Dr. Peter McCullough, to testify that COVID-19 vaccines do not stop infection by citing “hundreds of studies and hundreds of data points” from scientific journals and the federal Centers for Disease Control and Prevention.

However, board Chair Carol Goins ended the hearing before Denton could call those witnesses. Following testimony by Shannon Barrett, the city’s human resources director, and Stacie Saunders, Buncombe County’s director of public health, Goins said that the board had heard all the evidence it needed to make a ruling. She added that it was not the board’s job to evaluate city policies, “particularly as to subjects that are based on public heath authorities’ information.”

Speaking with Xpress after the hearing, Denton alleged that the CSB had treated his clients unfairly and protected the city’s witnesses from answering hard questions. He cited the board’s decision to shut down a line of cross-examination about federal court rulings on a similar mandate proposed by the administration of President Joe Biden for all businesses with 100 or more employees.

In November, the 5th Circuit Court of Appeals stayed the Occupational Safety and Health Administration’s test-or-vaccinate rule, describing it as a “one-size-fits-all sledgehammer” that did not account for “varying degrees of susceptibility to the supposedly ‘grave danger’ the mandate purports to address.” The Supreme Court upheld that ruling in a 6-3 opinion Jan. 13, stating the policy was a “blunt instrument” that failed to draw “distinctions based on industry or risk of exposure to COVID-19.”

Similarly, Denton argued during the hearing that not all Asheville employees are exposed to the same level of risk from COVID-19. Some work from home or alone in a vehicle, he said, while others already have natural immunity to the virus through prior infection.

“I think everyone wants to know why the city is implementing a policy that federal courts have described as lacking in common sense and reality,” Denton told Xpress. “But once [the CSB] heard that I was asking very difficult questions and that the witnesses were struggling to give me answers, I felt like the board had seen enough and wanted to end it.”

Denton said his clients would appeal their case to the Buncombe County Superior Court, where they hope to win back pay from the date of their firing, a sum that would likely exceed $150,000 in total by the time the court hears the case, as much as 20 months away. He added that he would depose Asheville officials and request documents to support his argument that the city’s policy is not supported by science.

It’s unclear if more city employees beyond the five represented by Denton were fired due to noncompliance with the COVID-19 policy. John Maddux, assistant city attorney, said during the hearing that the “vast majority” of Asheville’s roughly 1,400 employees had followed the rules.

City spokesperson Kim Miller emphasized that city’s decision to suspend its employee vaccination and testing requirements March 2 was completely independent of the CSB hearing. Responding to questions from Xpress, she said “positive trends in infection rates in Buncombe County and within our organization” over recent weeks had allowed for the policy change.

“City of Asheville policy has always reflected ‘best practices’ guidelines to protect our staff and community as we all experienced the many phases of the COVID pandemic,” Miller said. She added that the city had not directly consulted with the county’s health department regarding the shift. (Buncombe spokesperson Kassi Day said the county’s own employee vaccination and testing requirements had been suspended effective March 1.)

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19 thoughts on “Asheville board upholds employee firings over vaccine mandate

  1. Lou

    There is no “major disagreement” on whether vaccines work. There are only ineffectual right wingers screaming such nonsense into the wind. Supposed adults who act like selfish children are so 2020. Get a grip y’all.

    • Maureen McDonnell

      There’s so much information from the UK, Israel and our own CDC showing how ineffective these injections are. They don’t prevent transmission. They don’t prevent infection and a high percentage of those in ICU are triple jabbed. Plus, according to German and US insurance companies there has been a 42% increase in all cause mortalities since the injections were introduced. Please before posting, do your research.

    • cristalrosefox

      I’m vaccinated and totally disagree with you. There IS major bipartisan global disagreement on whether vaccines work. The most vaccinated countries have the worst hospitalization and death rates from Covid. There is no discussion about the co-morbidities such as obesity, high blood pressure, and diabetes that are causing horrific outcomes in our country. Europe doesn’t mask their children in school. I have zero fear that my toddler is going to die because he is not vaxxed and has never worn a mask. I do fear that the masks in my older sons elementary school have had detrimental mental health impacts to the children.

      I’ve never been a right winger, but I support free speech and truth seeking. In fact, I have been a lifelong Democrat. However, the lack of nuance in your parties rhetoric and prevalence of “all or nothing” mentality and bullying is such a turn off that I’m going to go Independent at this point. I just can’t get on board with the deliberate silencing of any voice that violates the propaganda machine.

      I also am very concerned about the fossil fuel companies benefitting from this pandemic with the single-use plastic face masks, and dramatic uptick in plastic to-go containers that are clogging out landfill and trashing our nation. It seems that the fossil fuel companies are winning yet again, and they have someone as intelligent as you fooled. Come on Lou! Get a grip as you say!

  2. Jonathan Greene

    So if it’s a gay guy wanting a cake from a xtian cake baker…that’s right of refusal and religious right which they like. If it’s a mask mandate or vaccine requirement or testing…then it’s a problem because they think places don’t have a right to impose their will or incorrectly think it’s against the constitution. Basically…you’re hypocrites. Got it. And you call us snowflakes?

    • Lakota Denton

      Jonathan, we did not argue that the policy was unconstitutional. We argued that the policy was not based in scientific data. The City admits that vaccinated people also spread covid, so why would the policy require only the unvaccinated employees to test every week? We also argued the same things that convinced the supreme court to strike down an identical mandate – that different employees have different susceptibility to covid, and the policy does not account for those differences. Finally, we also asked the City if they had any data, or study, or journal article that supports employer mandates like this actually reducing the spread of covid, and the City repeatedly told us they had no such data. The Buncombe County Health Director also had no such data. Policies should be based on science and data, and this policy wasn’t. That’s not hypocritical, that’s just asking for data to support the City’s position.

      • Jonathan Greene

        Lakota, a decision by any entity, employer, business etc does not depend on if it’s rooted in science. You miss the point entirely. It’s a hipocrite that believes one side because it fits their belief system while believing the opposite side when it fits their beliefs. Just because you believe or don’t believe in something…it doesn’t matter. Fair and equitable is what matters, You have employment with a organization solely at their will. Not following a requirement set forth by an employer is subordination. Thus you give them the right of termination. Science and belief doesn’t preempt anything.

        • G Man

          How is this hypocritical? Both cases you cite involve a government entity forcing an individual to violate their personal core beliefs. Seems like the same thing to me.

          How can you define “fair and equitable” without involving beliefs?

          I’m pretty sure that you are overstating the whole “at will” thing. There are actually quite a few rules that an employer must follow regarding hiring and firing of employees. It is not a case of anything goes at the will of the employer, especially when the employer is a government entity.

          • Jonathan Greene

            Something isn’t wrong or right simply because you believe it or not. The same is true if a religion thinks its wrong or right. When a persons belief encroaches on someone’s rights that’s because that belief is a personal opinion. That’s why injustices that have historically been backed by beliefs were dealt with by unilateral actions rather than public opinion. Just because the bible provides you with how and how not to treat a slave is not a foundation to say slavery is your right based on a belief. It’s a question of morals and human decency that transcends beliefs. So no, your beliefs do not matter. Separation of church and state. Just because an entity is governmental does not mean they are forced to follow a different set of rules. North Carolina is an employment-at-will state. Meaning the employer or employee can generally terminate the employment relationship at any time and for any reason, unless a law or agreement provides otherwise. Honestly, I don’t see why it is so hard to understand. If you are subject to random drug testing and you refuse, that’s automatic termination. If there are employment restrictions put in place, regardless if you like them or not, when you break those requirements you face consequences which can include termination if it so states. Their actions were to protect other employees. There’s no protection under the ADA. Religious right is senseless for anything. You make a conscious decision to continue to work at any place. They are not required to treat you different just because you disagree with their policies. That’s why adults have to make adult decisions and act like adults. You have to say to yourself is me catering to my own whim instead of following what every other employee has to follow worth me losing my job. And then you have to live with that decision.

          • G Man

            None of that babble convinces me that you understand the definition of “hypocrite”. Quite the opposite, in fact.

            (and yes, that is how it is spelled)

  3. WNC

    We’re right dang it, but not right enough to stand up to expert witnesses or testimony.
    Speaks for it’s self.
    Sounds like forced indoctrination classes that have been required in county and city already.

  4. James S.

    The two worst offenses an employee can commit are theft and insubordination. I don’t know if the fired employees belong to a Union, if they do they should know that you obey a directive from a superior unless it is unsafe. If you don’t agree with the order you do it and file a grievance afterwards. If they don’t belong to a Union, they are employees at will and can be terminated for any or no reason. They were not required to be vaccinated. They had the option to be tested weekly and remain employed. That seems like a reasonable accommodation to being vaccinated. That being said the city could have and in my opinion should have restored their employment under a “last chance agreement” regarding the insubordination offense

  5. Clarence Young

    I believe that what happened here shows a bit of arrogance for the sake of power. Where is the justice? Where is the kindness? Where is the love? Where is the forgiveness? Is our government better or worse for happened here? I think it is much, much worse. Rehire those people and say the words, “Now, let’s be friends and let’s get on with good government.

  6. Cousin Larry

    My understanding of these firings is that the employees asked what would happen to their pensions (some of these people had long careers with the city and sizable pensions) and health benefits an the city was not able to give them any clear information on these monumentally important factors. It was just “do this, or do that, and roll the dice with regard to your pensions and health insurance”. At best, that policy was ill conceived and failed to address the relevant factors for employees to make informed decisions. Thats strong arming, whether you agree with a workplace policy or not. Spoiler alert, these employees lost their pensions, after the city was not able to clarify what exactly would happen with them.

  7. Voirdire

    It’s too bad Covid wasn’t a lot more lethal than it actually was… wasn’t. Can you imagine all the nonvaxx types falling like dominoes and still clinging to their disinformation lunacy with their dying gasps? Oh right…. remember the right wing vaccine disinformation radio broadcasters who repented on their death beds? There were several of them as I recall….. that was fraught with, well, telling entertainment.

    • G Man

      Maybe, if COVID were more lethal, or if the vaccines actually stopped the spread, then there wouldn’t be so many “non-vaxxers”. But, hey, don’t be afraid to show your true colors by wishing for more death and destruction, especially for those people who you don’t like. Yay you!!!

    • WNC

      CDC info- Valdi
      You don’t need mask
      You do need mask
      No differentiation between N-95 and the do nothing mask
      If you get a shot you want get Covid
      If you get a shot you can’t transmit Covid
      If you get a shot you don’t need a mask
      If you get a shot no need to quarantine
      Science say’s rate of death for kids from Covid is fraction of fraction similar to some ordinary activities
      Etc….

      They say Covid can affect memory, sounds like you may have a Covid.

  8. Danny Walton

    Hello everyone. My name is Danny and I’m one of the five fired employees mentioned in this article. Thanks for taking the time to read and comment! I was surprised this made it to the paper- thank you, Mountain Xpress, for publishing this article and getting the news out.

    As someone who went through this process, I’d like to say several things.

    First off, if you want to know how a workforce becomes demoralized, then look no further. The employee vaccination rates were roughly that of the area as a whole until the new covid policy was announced. Almost over night, hundreds and hundreds of employees, many who had pensions and had been long-timers with the organization became fearful of losing their jobs. This is essentially just large scale bullying. These people took the injection in a state of duress. They didn’t want it, but they were forced to make a tough choice. But I can’t comment on anyone else’s decisions, so I won’t say anything more in this regard.

    But as for myself, I’m a friendly, reasonable person, a holder of a philosophy degree, and someone with dear friends on both sides of the political spectrum. I don’t consider myself a right-wing nutjob, domestic terrorist, or any of the other petty labels the media, along with an unfortunately large portion of the society, have chosen to label me with. I’m just a person who has carried out careful research, which included reading the primary source materials from scientific journals whenever I’ve been able to access them. Many people don’t know this, but most of these studies are available online, and many of them for free. If you have the time and inclination, definitely check them out. It is from two years of daily reading after returning home from work each day that I based my choices concerning all things covid, not propaganda.

    We, as a society, for some time now, have collectively realized that most politicians, news media, social media, entertainment media, and mega-corporations simply do not have our best interests in mind. Why, then, did we suddenly se seem to forget this within the past two years? When did we begin to vilify those who choose to act independently apart from the hive mind?

    As much as I’m tempted to, I won’t use this space to write a book about why I’m choosing not to take the shot. But I will mention the implications that my choice has had on my life. In my final weeks at work, the new policy was all everyone was talking about. I got to sit across the table from one of my coworkers as he told me with a straight face that I, and everyone else not getting the shot, should be rounded up and put in prison until we changed our minds. This is an otherwise intelligent person saying this, too. I got to sit across the desk from my supervisor, who I would have supported were the roles reversed, as he wrote me up for insubordination, and then do it again a week later. Finally, I got to do it all once more, but this time with my department director, Jade Dundas, there as well. I politely told them that future generations of Americans will look back on them with shame, and they politely told me I would get a letter from them a few days later informing me of their decision. Spoiler: I got fired.

    I liked my job, really. I got to hang out with awesome people who I love as they taught me cool trades skills. I felt at home with my work family, and I had nothing to complain about in my own little world of daily tasks. I had planned on being a part of this organization for much longer, and was happy to be taking on more and more responsibilities as time went on. I generally tried to ignore the gross incompetence of our leaders in City Hall as they spent millions buying hotels for homeless people, while giving their workforce pennies of a raise, and instead was just grateful for my job as part of an elite little crew. But due to Deborah Camel’s myopic political grandstanding, I got the boot. It was fashionable at the time to implement such a policy, and so she did. Now that court cases are raining down on municipalities all across the world, and we’re entering the 2022 political season, covid is apparently over, it’s yesterday’s need, and so it’s no longer in the City’s strategic advantage to have this cumbersome political appendage attached to it’s name.

    Now, after the policy has only been in place for four months, it is no more. One week after the civil service board hearing- after the City, it’s lawyers, and it’s HR representatives furiously defended their actions in this meeting- they just dropped it. They claim it has nothing to do with the court case, but that’s obviously a lie and everyone knows it. Here you have a City Council who (1) hires the City Manager to determine the policy, and (2) plays a large part in the makeup of the civil service board members who are tasked with ruling for or against those who come before it. Now with this board, halfway through the hearing, they gave everyone a surprise twist-ending by just cancelling it before our side even got to present it’s case. When asked where the rule is that allows them to do this, they respond by saying that there isn’t a rule that says they can’t.

    By the way, if anyone is curious, has some time on their hands, and wants to see what government corruption looks like on your local level, just check out the City of Asheville YouTube page and you can watch it yourself. It’s called “Civil Service Grievance Hearing,” dated February 22nd.

    As is, I have been fired, and there are already multiple businesses within this city that I am no longer allowed to go inside of. Never in my life did I imagine such a situation, and quite frankly it’s disgusting. That being said, I fully stand behind my decision, and I would do it again and again and again. The City has shown it’s ignorance and cowardice. Meanwhile, I have had an opportunity to be tested and grow as an individual. This ordeal has cost me my job, but has also given me a new awareness of the strength of my character. There are plenty of good jobs out there, and I would never, at any time, for any job or any amount of money, sacrifice my dignity. My moral compass sets the path ahead of me, and I follow it. I would carry the burden of regret and not be able to sleep at night if I did otherwise. By making the choice that I did, I remain a free person, unbound by fear, peer pressure, or fleeting social trends. I abstain from social media, I no longer talk politics or religion with anyone, I exercise caution with the entertainment media I expose myself to, and I try to seek out the truth in all things I turn my attention to with a health dose of skepticism. You may not agree with my choices, but you will surely agree that we all have the right to exist without undo interferences in our lives- that is to say, we have a right exist as a part of society together. This has always been the bedrock of a unified nation. If only the City knew that….

    • cristalrosefox

      Thank you for your thoughtful and brave response. It was really interesting to hear about your perspective.

      • Danny

        Thanks for taking the time to read it! Luckily our area wasn’t hit very hard with this sort of thing like it was in other parts of the country, such as NYC or LA. But that also means that there’s not much of a conversation happening about it here either.

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