A former Bellingham Police Department officer has sued the city of Bellingham over a former mayor's COVID-19 vaccine mandate for employees, alleging that the city discriminated against him due to his religious beliefs when it fired him for failing to comply with the vaccine mandate.
Joshua D. Wilson filed a civil employment lawsuit April 3 in Whatcom County Superior Court against the city. Wilson's lawsuit argues that the city violated the Washington state law against discrimination, which prevents employers from firing people from employment on the basis of religion or creed, according to court records.
Wilson's lawsuit states he has "bona fide religious beliefs that prevented him from taking the COVID-19 vaccines," and that he informed the city of those beliefs, but that the city discriminated against him when it failed to reasonably accommodate him and subsequently fired him, court documents state.
Wilson is seeking general and special damages, including lost wages and benefits, attorney's fees, declaratory relief that the city and Bellingham police failed to implement policies and procedures that encouraged engaging in a meaningful analysis of what accommodations could be made for people asserting their religious beliefs against being vaccinated, a judgment that the city's acts and practices are in violation of state law, and declaratory relief that the city's accommodation process failed to meet the minimum standards required by law, according to the records.
Wilson is one of four Bellingham police officers who have sued the city over the vaccine mandate, and one of five total city workers who have sued in county court, according to more than 100 pages of court documents obtained and reviewed by The Bellingham Herald. The other worker who has sued is a former Public Works employee.
Mandates issued
Former City of Bellingham Mayor Seth Fleetwood issued an executive order Sept. 21, 2021 requiring all city employees to be vaccinated against COVID-19 by Dec. 3, 2021 as a condition of employment. The order required volunteers and contractors entering into new agreements where individuals would be working inside city facilities to also be vaccinated.
The order stated that employees "seeking reasonable accommodations for legitimate medical reasons or sincerely held religious beliefs may apply for an accommodation no later than close of business on October 15." Employees who were not vaccinated, or had not been granted an exemption and accommodation, by the deadline would be "deemed not meeting a condition of employment. Customary discipline steps will be followed that will most likely end in termination of the employee," Fleetwood's mandate stated.
Gov. Jay Inslee also issued a proclamation roughly a month prior, on Aug. 9, 2021, requiring all government employees, on-site independent contractors, volunteers, goods and services providers, and appointees of designated state agencies to also be fully vaccinated against COVID-19. Roughly 160 city employees at the time were subject to Inslee's order, including firefighters, emergency medical technicians, paramedics and fleet mechanics, according to a previous city press release.
Fleetwood rescinded the vaccine mandate, no longer requiring city employees to be vaccinated against COVID-19 as a condition of employment, on Feb. 13, 2023, The Herald previously reported.
As of Dec. 7, 2021, a total of 27 city employees lost their jobs for failing to comply with the state and city vaccine requirements. Six employees resigned, 17 were dismissed for violating the city's new terms of employment, and four were dismissed for violating Inslee's vaccination order for state employees, teachers and health care workers, such as firefighters.
Twelve of the 27 employees came from the Public Works Department; eight from Bellingham police and four from the Bellingham Fire Department. (It's unclear which departments the other three came from.)
The Herald is aware of at least one additional employee who was terminated after the December deadline and has asked the city for a final, updated total number of employees who resigned, retired or were fired as a result of the vaccine mandate. The Herald has also asked how many of those employees have since been re-hired.
Wilson and the three other former Bellingham police employees who have sued — Clark S. Bourgault, Michael P. Scanlon and Jonathan C. Weiss — are represented by attorneys Harold H. Franklin Jr. and Tracy Tribbett of the Pacific Justice Institute, a California-based conservative legal defense nonprofit focusing on defending religious freedom, parental rights and civil liberties, according to its website. The Pacific Justice Institute was designated as an anti-LGBTQIA+ hate group in 2014 by the Southern Poverty Law Center.
Shannon A. Franks, a former Public Works employee, has also sued the city, Fleetwood and Public Works Director Eric Johnston, both in their professional and personal capacities. Franks is represented by local attorney Carrie M. Coppinger Carter, whose firm focuses on employment and personal injury cases, including wrongful termination, discrimination and retaliation cases, according to the firm's website.
The Herald has asked the city, Franklin Jr. Tribbett and Coppinger Carter for comment.
COVID-19 cases
Whatcom County reported 36,651 documented cases of COVID-19 within the first two years of the pandemic — from roughly March 2020 to February 2022 — according to a data report from Whatcom County Health and Community Services, formerly known as the Whatcom County Health Department. The county reported 295 COVID-19 related deaths, and 1,485 COVID-19-associated hospitalizations, the county report states.
Infection and positive case data is limited because most people are testing at home and positive home tests are not reported to the health department, Marie Duckworth, a spokesperson with the county health department, said. Positive case data over the past few years was focused on hospitals and emergency departments, Duckworth said in an email to The Herald.
"In general, health departments are moving away from counting individual cases of COVID-19 because many people now have some form of immunity from the virus through vaccination, prior infection, or both. We know much more about the virus than we did when the pandemic first started including risk factors for severe disease and how people can protect themselves," Duckworth said in an email to The Herald. "We now have medications, vaccines and high-quality masks that are effective against the virus. We also have much greater individual and population immunity to COVID-19 through vaccination and recovery from prior infection."
Duckworth said health organizations are now moving away from counting individual cases and are instead focusing on population-level data, and reducing the risk of severe disease among high-risk groups, such as older adults, people with pre-existing health conditions, people who are unvaccinated, and people who are immunocompromised, who are all at higher risk of serious disease and death than the general population.
Wilson's lawsuit
In Wilson's lawsuit, which is the most recent of the four lawsuits against the city to be filed, he alleges that the city failed to reasonably accommodate his sincerely held religious beliefs against vaccination, and in doing so, discriminated against him and violated his state and federal rights as a member of a protected class.
Wilson was a former corporal who had been with Bellingham police since June 17, 2002, according to public records obtained by The Herald.
Wilson applied for a religious exemption to the city's vaccine mandate in early October 2021, "stating that he had a sincerely held or bona fide religious beliefs and convictions that prevented him from taking the COVID-19 vaccination and that his bona fide religious beliefs and convictions were in conflict with the City of Bellingham's vaccination policy," the lawsuit states.
Wilson's request for a religious exemption included details on why his religious beliefs were in conflict with the vaccination requirement and why he was seeking an exemption.
"I must walk in faith, conscientiously object to these vaccines and follow the Bible. Yet, my deep love and care for others makes me determined to seek alternatives such as wearing a mask, social distancing and regular testing, if needed. Every individual has the right to exercise their freedom, especially in moral and religious matters. We must respect the dignity of each person by refraining from forcing them to act contrary to their conscience," Wilson wrote in his request, according to the lawsuit. "As one of the few persons of minority working for BPD and as someone who has experienced racism and hatred up-close, I feel it is of paramount importance that we prohibit discrimination against medical conditions and sincerely held religious beliefs."
Wilson stated he believed that wearing a mask, social distancing and conducting regular testing would be appropriate accommodations. Wilson also stated he would be willing to wear more protective masks, including N95s, and use a separate room to write his case reports so he could social distance while at the police station, court documents state.
Wilson's lawsuit states the city accepted his sincerely held religious beliefs in a letter in late October 2021, but denied his request for a reasonable accommodation. His lawsuit alleges the city failed to "hold an interactive and engaging analysis of the job prior to denying the Plaintiff's requested accommodation," according to court records.
Wilson was then fired by the city on Dec. 3, 2021, the records state.
"The Plaintiff applied for a religious exemption from the vaccine due to his sincerely held religious beliefs. No meetings were held to determine if an accommodation for people of faith who held sincere religious convictions against ingesting the COVID-19 vaccines were made. These actions show a premeditated determination to deny accommodations and a failure on the part of the City to afford employees of faith an interactive accommodation process," the lawsuit alleges.
City's response
In its April 12 response to Wilson's lawsuit, the city denied it discriminated against Wilson, denied it violated his rights and denied it failed to provide reasonable accommodations, court documents show.
The city also denied that it instructed employees to request accommodations. The city admitted Wilson applied for a religious exemption from the vaccine mandate, and that it acknowledged his sincerely held religious beliefs, but denied that it granted Wilson a religious exemption or that it failed to conduct an interactive analysis of Wilson's job prior to denying his requested accommodation, according to court records.
The city also denied that its actions showed a premeditated determination to deny accommodations or engage in an interactive accommodation process for employees of faith who asserted their religious beliefs, court documents show.
The city's response to the lawsuit stated it "has exercised reasonable and due care in all respects relative to the subject of this litigation" and that its "actions were taken for legitimate, non-discriminatory, and non-retaliatory reasons."
It denied that it was responsible in any way for Wilson's alleged injuries and damages, and alleged that he can't prove the necessary elements of his claims and allegations against the city, and that his claims may be barred by the statute of limitations, court documents state.
"At all times material to this action and the allegations set forth in the (lawsuit), (the city) acted lawfully and in good faith and without any intent to deny (Wilson) any rights under federal, state or local law. (The city) adequately engaged in an individualized, iterative and interactive process to determine whether it could accommodate (Wilson) absent undue hardship," the city's response states.
The city alleges that Wilson's requested accommodations "were unreasonable and/or posted undue hardship" on the city, and that the accommodations "would have infringed on the rights and safety of other employees," according to the records.
Wilson's "alleged damages were caused in whole or in part by (Wilson's) own conduct," the city's response states.
The city asked that Wilson's lawsuit be dismissed with prejudice, meaning it could not be brought back before the court. It has also asked for attorney's fees and costs to be awarded to the city as allowed by law, and any other relief the court deems just and proper, according to the records.
Other lawsuits
Scanlon and Weiss, both former Bellingham Police Department employees, were the first to file a lawsuit against the city. The pair jointly filed a civil lawsuit Dec. 15, 2022 in Whatcom County Superior Court against the City of Bellingham and the Bellingham Police Department.
Scanlon is a former sergeant who had been with the department since Jan. 1, 1993, while Weiss is a former detective who had been with the department since Nov. 1, 2016, according to the public records obtained by The Herald.
Bourgault, also a former Bellingham Police Department employee, was the third employee to file a lawsuit, the second against the city. Bourgault filed a civil tort lawsuit March 9, 2023 in Whatcom County Superior Court against the city of Bellingham and the Bellingham Police Department.
Bourgault is a former police officer who had been with the department since March 10, 2008, according to the public records obtained by The Herald.
The lawsuits allege many of the same violations that Wilson's lawsuit describes, including that the city discriminated against them due to their sincerely held religious beliefs against getting the COVID-19 vaccine.
Like Wilson, Scanlon, Weiss and Bourgault allege the city accepted and granted their religious exemptions from the then-mayor's vaccine mandate for city employees but denied them reasonable accommodations and subsequently fired them after they asserted their religious beliefs as a member of a protected class, according to court records.
Their lawsuits allege the city violated the state's law against discrimination and their federal rights against discrimination from employers on the basis of race, color, religion, sex and national origin under the Title VII of the Civil Rights Act of 1964, court documents state.
Scanlon, Weiss and Bourgault are seeking general and special damages, including lost wages, benefits and any other lost income. They are also seeking nearly identical additional remedies that Wilson is seeking in his lawsuit, the records show.
In its March 16, 2023 response to both Scanlon and Weiss's lawsuit and Bourgault's lawsuit, the city denied the allegations that it discriminated against Scanlon, Weiss and Bourgault due to their religious beliefs or that it violated their religious and civil rights when it fired them from their jobs.
Like in Wilson's lawsuit, the city acknowledged Scanlon's, Weiss's and Bourgault's religious beliefs, but denied that it granted them religious exemptions from the vaccine mandate or that it failed to provide them with reasonable accommodations or engage in an interactive accommodations process, according to court records.
The city also alleges that Scanlon, Weiss and Bourgault failed to engage in the interactive accommodation process, court documents state.
The city has asked the court to dismiss Scanlon and Weiss's lawsuit, and Bourgault's lawsuit, with prejudice.
Public Works suit
Franks, a former Bellingham Public Works Department employee, was the fourth city employee to file a lawsuit against the city, the third.
Franks and his wife, Janine, filed a civil tort lawsuit Aug. 10, 2023 in Whatcom County Superior Court against the city of Bellingham, former mayor Seth Fleetwood and Public Works Director Eric Johnston, both of whom were sued individually and in their professional capacities, according to court records.
Franks' lawsuit alleges the city, Fleetwood and Johnston violated the state's law against religious discrimination; that they retaliated against him for opposing unfair practices and/or asserting his constitutionally held rights; that their actions violated public policy and constitute retaliation and wrongful discharge and that the city is liable or Fleetwood and Johnston's "deliberate, negligent and/or reckless acts or omissions" because they were city employees at the time they took such actions, court documents state.
Franks' lawsuit also alleges that the city know or should have known that "Fleetwood and Johnston presented a risk of harm to other employees' employment status because of discrimination based on religion, age and retaliation for asserting legal rights, such as opposing mandates violating one's religious beliefs, and targeting employees granted religious exemptions with discriminatory and retaliatory treatment," and that the city's "failure to adequately supervise its agents and mandates was" the cause of Franks' alleged injuries, according to court records.
Franks was hired April 20, 2010, as a maintenance technician in the public works department. He was initially responsible for repairing and replacing broken equipment, and was later promoted in February 2015 to a plants maintenance electrical specialist, according to the lawsuit. He was responsible for planning and scheduling work for his crew, monitoring emergency work requests, writing work orders and assigning work to individuals on the crew.
Franks' lawsuit states his work did not require site visits or in-person interactions with vendors, and that by 2021, he was working independently at remote locations throughout Bellingham. Franks' lawsuit also states that he personally did not visit work sites, which was routine and past practice prior to the COVID-19 pandemic, and that he didn't work directly with the public and hadn't worked with a city vendor for years prior to the COVID-related closures.
Franks' lawsuit alleges the city violated Fleetwood's vaccine mandate by continuing to use unvaccinated contractors by "grandfathering" in contractors already working under pre-existing contracts, but that the mandate did not allow for any "grandfathering" exemption for city workers.
Franks' lawsuit also alleges the city and Fleetwood allowed visitors to city property whose vaccination status was unknown, that people living in tiny home transitional living villages on city property were not required to be vaccinated, and that the mandate failed to exclude employees who were not interacting with the public or serving in other high-risk interactions, according to court documents.
"Defendants Bellingham and Fleetwood's COVID-19 mandate never intended to grant exemptions or exemption related accommodations from Defendants' COVID-19 mandate for its employees who requested them, including Plaintiff Franks," the lawsuit alleges.
Franks, who had sincerely held religious beliefs against COVID-19 vaccination and related mandates, applied for a religious exemption and associated accommodation. Franks' lawsuit states he was granted a religious exemption in late October 2021.
The same day his exemption was granted, Franks emailed the city's human resources director to begin the interactive accommodation process under the federal Civil Rights Act of 1964. Franks requested the city allow him to continue to work from home as an accommodation, the court documents state.
In early November 2021, the human resources director told Franks she had spoken with representatives from the city's public works and legal departments and that the city claimed his position had not been 100% remote in the past year and that it could not be remote in the future. The city then requested Franks provide an alternative accommodation proposal, according to court records.
Over the next several days, Franks attempted to continue to work with the city. He again requested to be allowed to work from home, which he said he had done for roughly the past year. If that wasn't an option, he requested he be allowed to return to work wearing personal protective equipment, observe social distancing, get periodically tested for COVID-19 and self-monitor for symptoms, or that he work a modified shift or be re-assigned, court documents state.
The city ultimately denied Franks' requests for accommodations and informed him in late November 2021 that it intended to terminate his employment with the city for failing to comply with the city's vaccine mandate.
In a scheduled meeting to discuss Franks' termination, Franks' lawsuit alleges Johnston, the public works director, repeatedly stated the only accommodation the city would consider would be for Franks to get vaccinated, the court records state.
"Defendant Bellingham's mandatory vaccination policy provided Plaintiff Franks, in theory but not in practice, the illusory ability to obtain a religious exemption from the vaccine mandate. Defendant Bellingham's refusal to abide by the granted exemption and provide the reasonable, de minimus accommodation of Plaintiff Franks' sincerely held religious convictions is the product of Defendants' animus towards, and discrimination against, Plaintiff Franks because of his religious beliefs," the lawsuit claims.
Franks was then fired from his position with the public works department.
"There is nothing different or unique about Defendant Bellingham that allows Defendant Bellingham to refuse to accommodate its religiously-exempt employees, especially those with no contact with the public, while its peers are able and willing to accommodate their similarly situated employees," Franks' lawsuit states. "Due to Defendant Bellingham's unlawful actions in denying Plaintiff Franks a reasonable accommodation for his granted religious exemption, Franks was faced with an immediate 'choice' by Defendants Bellingham and Johnston to either: (a) receive a COVID-19 vaccine in direct violation of his conscience and sincerely held religious beliefs; or (b) be terminated from employment with the City as a consequence of exercising his fundamental and statutory rights to refuse administration of the COVID-19 vaccines."
Franks is seeking damages for lost compensation, including unpaid wages and benefits; general damages for emotional distress, suffering, physical injury, loss of enjoyment/quality of life, and injury to reputation; any tax relief that's warranted; attorneys fees, costs of the lawsuit and any expenses incurred, and any other relief the court deems just and proper.
City response
In its Aug. 30, 2023, response to Franks' lawsuit, the city denied that it discriminated against Franks based on his religious beliefs, or that it retaliated against him, according to court records.
The city's response stated that while Franks' lawsuit described some of the details of his job duties, it did not cover all of them, and that Franks' job duties did require site visits, in-person interactions with vendors and was not a fully remote position, the records show.
The city also denied that Fleetwood's vaccine mandate permitted employees to seek an exemption to the mandate, but that it did allow employees to seek accommodations. The city also denied Franks' allegations that it continued the use of unvaccinated contractors, or that the mandate never intended to grant exemptions or exemption-related accommodations for employees who requested them, according to court records.
The city's response said Franks did comply with seeking an accommodation and that it did acknowledge his sincerely held religious beliefs, but denied it ever granted him an exemption from the mandate, the records state.
The city also denied that Johnston, the public works director, repeatedly told Franks in a meeting that the only accommodation the city would consider would be for him to get vaccinated, court documents state.
Like its responses to the lawsuits filed by Wilson, Weiss, Scanlon and Bourgault, the city stated it was not responsible for Franks' alleged injuries and damages, that he can't prove the allegations he's made against the city, and that the accommodations requested were unreasonable and/or presented undue hardship for the city, and would have infringed on the rights and safety of other employees. The city also claimed it exercised reasonable care and that its actions were done for legitimate, non-discriminatory and non-retaliatory purposes, according to court records.
"Plaintiffs' alleged damages were caused in whole or in part by Plaintiffs' own conduct," the city's response states. "Plaintiffs may have caused and contributed through their own comparative fault, intentional conduct, actions, negligence, or other failures, to any injuries or damages suffered. The employee's conduct may have constituted, without limitation, contributory fault, and negligence," the court documents state.
The city has also asked that Franks' lawsuit be dismissed with prejudice.
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