Can the government fire public workers for refusing vaccination on religious grounds, when it could easily accommodate them in several ways, then sabotage their ability to get work that doesn't require vaccination?

Those are the questions set before the 9th U.S. Circuit Court of Appeals in litigation by firefighters against the Seattle suburb of Redmond, the home of Microsoft, two weeks after the Supreme Court declined to review the 9th Circuit's ruling against a similar challenge by firefighters against a regional fire agency in Washington's Snohomish County.

Both sets of challengers accuse lower courts of chronically misapplying a 2023 SCOTUS precedent for Christian postal worker Gerald Groff, which raised the standard for employers to reject religious accommodation requests such as Sundays off for Groff, by reaching speculative conclusions that accommodation would cause employers "undue hardship."

SCOTUS denied review despite a 3-3 circuit split on whether employers must show only a "reasonable concern" that an accommodation would create an undue hardship, or actually "prove" it.

Unlike the Snohomish firefighters, however, the Redmond firefighters provided "hard facts" that the city could have accommodated them without endangering the health of patients when they answer emergency calls, in contrast to the "tenuous chain of improbable events" Redmond officials invoked to deny religious accommodations, their opening brief says.

After all eight plaintiffs received accommodations, the city singled out firefighters for COVID vaccine mandates – police officers were exempt despite the fact that they also "rode in ambulances and provided life-saving care" – which continued into 2022 after Redmond had "relaxed" other COVID-related rules on first responders, the brief says.

Perhaps the most explosive of the plaintiffs' allegations is that the city actively hid no-mandate jobs that didn't "involve contact with medical patients" from unvaccinated firefighters, negotiated by their union to minimize firings, and instead gave them to vaccinated firefighters.

Mayor Angela Birney made plain her animus against the religious firefighters by explicitly citing their requests for religious accommodation in her Sept. 21, 2021, executive order banning religious accommodations, and told plaintiff Joshua Frei days later she would accept nothing less than "zero risk of transmission" from firefighters, the plaintiffs claim.

Birney's executive order, terminated in February 2023, is notable for its false claim that vaccination stops COVID infection and transmission, two months after breakthrough infections from the Delta variant became inescapable and eight months after then-Centers for Disease Control and Prevention Director Rochelle Walensky acknowledged them.

The "public expectation is that Redmond firefighters will not expose patients to the potential transmission of COVID-19 by being unvaccinated" and will get vaccinated "to protect themselves from the disease," the executive order says.

"The government cannot erase a religious accommodation simply because leaders decide there should be 'consequences for the unvaccinated,'" said Texas-based First Liberty Institute senior counsel Cliff Martin, who represents the firefighters alongside D.C.-based Williams & Connolly and the California-based Church State Council. 

He was quoting from the mayor's alleged conversation with Human Resources Director Cathryn Laird, cited in a related appellate brief against individual defendants, in which Birney said the city should be seen "making the unvaccinated uncomfortable" and "treat[ing] [them] differently" for the sake of "public perception."

The opening brief against the city itself says Laird then told plaintiff Matthew Peterson that Redmond had to show a "consequence for being unvaccinated," which was being made uncomfortable and treated differently.

Obvious accommodations ignored by Redmond, Biden judge

U.S. District Judge Jamal Whitehead, nominated by President Biden, gave a superficial reading of the facts of the Redmond challenge when he issued summary judgment to the city last December, finding the situation indistinguishable from the Snohomish challenge the 9th Circuit rejected, the opening brief says.

Redmond had four ways of granting religious accommodations without undue hardship, defined by SCOTUS in Groff as "excessive" or "unjustifiable" costs that employers may refuse to bear without violating Title VII civil rights of employees, the plaintiffs allege.

The city could have asked vaccinated firefighters to "swap" so unvaccinated colleagues get "non-patient-facing roles," reassigned plaintiffs to the Fire Prevention unit – which already had two vacancies – or to jobs with city-identified accommodations, or let them keep masking and testing, the accommodations they were granted before Birney's order.

The Seattle area was among the first to officially experience the novel coronavirus, which showed up in West Coast blood donations in mid-December 2019, and Redmond acknowledged its firefighters showed "exceptional" compliance with personal protective equipment controls, with no known firefighter-to-patient transmissions, the brief says.

Yet just "hours" after Redmond approved the last of the religious accommodation requests, explicitly allowed under the healthcare worker mandate imposed the prior month by then-Democrat Gov. Jay Inslee, the union learned the city had reneged on its agreement to allow "masking and pre-shift testing" in lieu of vaccination and revoked all accommodations.

Six of the eight plaintiffs took leave under the Family and Medical Leave Act, for the "emotional distress of being forced to choose between their faith and their jobs," to delay termination. The seventh used FMLA to care for a family member and retired to avoid firing, and the eighth stayed on and was fired two weeks after the Oct. 18 jab deadline, the brief says.

Four days after the jab deadline, the city for the first time found four jobs with "possible accommodations," one of which plaintiff Brian Robillard already held when he was ordered to get vaccinated or quit, yet it notified only the six plaintiffs on leave for emotional distress and told them to expect an answer by Dec. 17 of that year, the plaintiffs allege.

On the cusp of their return in March 2022, the six stated their interest in accommodations "for the third time," yet three-of-the-four slots had already expired or been filled, and the city falsely claimed the fourth had been filled. Redmond offered no accommodations when the six returned, resulting in their firing, the brief says.

Irrelevant that city 'perhaps' violated federal law

The city's good-faith defense was a joke, the plaintiffs claim: It gave six of them "the chance to apply" for four jobs, never told the other two, "gave some of those jobs to vaccinated firefighters," then completed "an ever-shifting process" without "a real shot at receiving reassignment."

Redmond repeatedly delayed its undue-hardship defense and ended up never providing evidence, the absence of which was "especially obvious" for plaintiff Robillard, who was already in "a non-patient-facing position that did not require vaccination" yet was ripped from him and given to a vaccinated colleague, according to the brief.

Judge Whitehead granted summary judgment for Redmond by not requiring any evidence of good-faith accommodation, refusing to find prejudice in the city's mediocre undue-hardship defense, and making himself his own expert witness in claiming masking and testing would not protect "both the workforce and the public," the brief says.

The Biden nominee ignored the swap and Fire Prevention accommodations, didn't consider whether Redmond could have left Robillard in his job before he went on leave – while conceding the city "perhaps" violated FMLA – and never mentioned evidence of retaliation, including when the mayor "called out" unjabbed firefighters in her executive order, plaintiffs claim.

They have indisputably proven they engaged in a "protected activity under Title VII" and suffered "an adverse employment action" – requesting accommodations and getting fired – and all that remains is for a jury to determine "whether the City retaliated against them because they requested religious accommodations."

The city took only a "hardline stance on vaccination" more than a month after Inslee's order that expressly allowed religious accommodations, just after the city had approved the plaintiffs' requests, suggesting it was "happy to offer accommodations in the abstract" but not when "faced with real requests that it perceived as problematic," the brief says.