LA County Firefighter’s Vaccine Mandate Suit Dismissed

A lawsuit filed by a Los Angeles County firefighter challenging the COVID19 vaccine mandate as violating the Americans with Disabilities Act, has been dismissed. Marcia Wilson filed suit pro se in April contending that she was being discriminated against on account of a perceived disability.

Wilson’s allegations and underlying legal theory to challenge the vaccine mandate are not unique. In June we covered a lawsuit filed against FDNY making the same allegations, often referred to as the “regarded as having a disability” claim. However, the US District Court for the Central District of California was having none of it. Quoting from the decision:

  • Plaintiff alleges that Defendant discriminated against her on the basis of disability in violation of the Americans with Disabilities Act.
  • The ADA prohibits “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.”
  • Plaintiff claims that Defendant “began regarding [her] as having the disability of a contagious disease” and imposed certain “accommodations” on her.
  • She equates “accommodations” with “COVID-19 mitigation measures,” including: taking experimental injections under Emergency Use Authorization which are being promoted as ‘vaccines’ but which are not legally vaccines; submitting to repetitive, non-job-related medical examinations (nasal tissue testing, temperature checks); being placed under isolation, segregation and quarantine without due process; using medical devices for mitigation measures; disclosing Plaintiff’s medical records and history for non-job-related matters and participating in clinical trials and epidemiological experiments as a condition of employment.
  • According to Plaintiff, these “accommodations” affected her ability to work and protesting these “accommodations” subjected her retaliation.
  • To sufficiently state a claim, Plaintiff must allege that she is “disabled” and “qualified,” as defined under the ADA, and suffered an adverse employment action because of her disability.
  • A person can satisfy the definition of “disability” by establishing that she was subject to discrimination because of a “perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
  • Impairments that are “transitory and minor” are excluded.
  • The Court observes several implausible aspects of Plaintiff’s claim.
  • First, it does not appear plausible that Plaintiff’s perceived contagious disease—presumably COVID-19—is a physical impairment that is not transitory and minor.
  • “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”
  • The Court takes judicial notice that the expected duration of a COVID-19 infection is less than 6 months. Most patients with more severe-to-critical illness likely remain infectious no longer than 20 days after symptom onset.
  • As such, Plaintiff’s purported “disability” cannot plausibly satisfy the statutory definition.
  • Second, it is not plausible that Defendant treated Plaintiff differently because of a disability.
  • Plaintiff does not allege that the “COVID-19 mitigation measures” targeted her personally, and it is doubtful that they applied only to her.
  • Without an allegation of disparate treatment, it is implausible that Defendant implemented COVID-19 prevention policies because of a perception about Plaintiff.
  • Because Plaintiff does not—and cannot—state a plausible claim, the Court dismisses this action.
  • All pending dates of the Court’s calendar are vacated as moot. The Clerk shall close this case.

Here is a copy of the decision:

Here is a copy of the original complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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