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.)