Sham affidavit does not create an issue for the jury in COVID-19 vaccine exemption case

The Second Circuit in this case considers whether the Federal Reserve Bank was legally able to fire two women who claimed that religious objections barred them from taking the COVID-19 vaccine. One woman has a case. The other does not.

The case is Gardner-Alfred v. Federal Reserve Bank of New York, issued on July 2. Vaccine cases under the First Amendment and Title VII's religious discrimination clause take on different forms, often asking whether the employer is singling out religious objectors from nonreligious objectors. But in this case, we examine whether the plaintiffs had a sincere religious belief that the vaccine mandate had violated. In many such cases, the courts assume the religious belief is sincere. Courts can be lenient on this issue. Not this case.

Starting with plaintiff Diaz, the record is not clear whether she had a sincere religious belief. Her claim will go to the jury to sort this out. The record shows that while she did have religious objections to the vaccine, based on its use of aborted fetus cells, she also had secular objections, drawn from having attending a webinar by Gary Null (a secular figure) that raised non-religious concerns about the vaccine. Also, Diaz had utilized other medical products without ascertaining whether they used aborted fetal cells. And the Federal Reserve's expert said that certain COVID vaccines did not even use these fetal cells. With these evidentiary issues, summary judgment was improperly granted on whether Diaz held sincere religious objections to the vaccine. We have to empanel a jury to decide on Diaz's sincerity. The jury may also find that the vaccine requirements posed a substantial burden on Diaz's religious beliefs.

Gardner-Alfred's case is more complex. On the summary judgment motion, she testified about her religious beliefs and why they conflict with the vaccine. She also stated she belongs to the Temple of the Healing Spirit, which "prioritizes holistic approaches to health focused on diet and spiritual self-awareness, and opposes the invasive techniques of traditional Western medicine." Her affidavit states that her "sincere and conscientiously held religious beliefs and convictions prohibit her from receiving the Covid-19 vaccine and undergoing Covid-19 testing." Normally, affidavits like this will doom any summary judgment motion asserting that the plaintiff does not hold such religious convictions. We don't second-guess the plaintiff's credibility on summary judgment motions. This case is different.

The Second Circuit (Nardini, Lynch and Lee) notes that "Gardner-Alfred's deposition ... casts serious doubt on the veracity of her claimed longstanding affiliation with the Temple of the Healing Spirit," as her memory is fuzzy on her involvement with this organization and she cannot remember much about what took place during its virtual services, or recall the names of anyone else with whom she had attended a service. While the Church gave her a "vaccination exemption package" that includes an affidavit from the Reverend about plaintiff's association with the Church and her need for a vaccine exemption, she gave conflicting and vague testimony about how she received the package and how or to whom she made her payments for it. However, a Federal Reserve investigator got the same package for the asking, including a vaccine exemption affidavit, even though he is not a member of the Church, which gives out these packages like Halloween candy. You get the picture. This is the rare case where the Court of Appeals thinks the plaintiff's credibility is so lacking that no rational jury can find in her favor. This happens when the plaintiff's uncorroborated testimony is contradictory or incomplete, raising a "sham issue of fact."