Home Local News Symphony, state department seek dismissal of lawsuit linked to COVID-related firings

Symphony, state department seek dismissal of lawsuit linked to COVID-related firings

NC Symphony. Source: public domain via NC DNCR

Both the North Carolina Symphony and the state Department of Natural and Cultural Resources are asking a federal court to dismiss a lawsuit from three former symphony members. The musicians contend they were fired for refusing to comply with a COVID-19 vaccine mandate.

“Plaintiffs claim that the Symphony is liable for discrimination based on religion under Title VII of the Civil Rights Act of 1964,” according to a memorandum from the Symphony and Sandi Macdonald, its president and CEO. “Plaintiffs also claim that the Symphony and Macdonald are liable for violating the Free Exercise Clause of the First Amendment to the United States Constitution under 42 U.S.C. § 1983 (“Section 1983”).”

“Plaintiffs’ claims depend on their allegations that the Symphony, through Macdonald, denied Plaintiffs’ requests for religious accommodations exempting them from the Symphony’s COVID-19 vaccination policy and terminated Plaintiffs’ employment based on their continued failure to comply with that policy,” the Symphony court filing continued. “[H]owever, Plaintiffs’ Title VII claim is time-barred because they failed to timely file charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”).”

The plaintiffs “are not entitled” to any legal relief from the time limits barring their suit, the Symphony argued. The Section 1983 claim “fails” because the plaintiffs “do not plausibly allege” that the firings can be attributed to state government.

DNCR took another approach with its motion to dismiss the case. “All of Plaintiffs’ claims against NCDNCR should be dismissed because Plaintiffs’ employer — and Defendant Macdonald’s employer — was the North Carolina Symphony Society, Inc., and not NCDNCR or the State of North Carolina,” according to lawyers representing the state department.

“Here, Plaintiffs have failed to allege or aver any facts that NCDNCR had the ability to hire, fire, or transfer any of the three Plaintiffs,” the department argued. “Likewise, there are no facts alleged that NCDNCR has control over the Symphony Orchestra’s budget.”

Chris Caudill, Rachel Niketopoulos, and David Friedlander (also known as Dovid Friedlander) filed their federal lawsuit on Aug. 31 against the Symphony, DNCR, and Macdonald.

In August 2021, the symphony instituted a COVID-19 vaccine mandate in order to return to work, but, according to Friedlander, as he stated on X (formerly Twitter) and Newsmax, their contract said an exemption based on medical and religious beliefs would be accepted as long as the required paperwork was submitted. He said he is Jewish, and the vaccine went against his religious beliefs. Caudill and Niketopoulos, who are married, are both Buddhist and have the same beliefs about the vaccine.

The lawsuits also noted that the three also agreed to regular PCR testing, wearing masks, and social distancing as part of the protocol during the pandemic.

The trio sent in their paperwork but received a response from the symphony in September 2021 that not only denied their return to work but put them on unpaid leave with health benefits for a year. In June 2022, the symphony terminated their employment without further discussion.

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The paperwork points out that during the 2021-22 season in which the three could not perform, the symphony allowed unvaccinated spectators to attend performances as long as they provided a negative COVID-19 test. Masking mandates were also relaxed during this time.

It also states that the DNCR professes its commitment to equity and inclusion.

“One of the Department’s stated values is ‘an open-minded approach to understanding people, regardless of their . . . religion . . . or other characteristics,’” the lawsuit says. “In addition, the Symphony professes to treat all employees the same ‘without regard to . . . religion.’ Despite these commitments, Defendants chose to denigrate Plaintiffs’ religion and engage in religious discrimination against them by failing to accommodate their sincerely held religious beliefs.”

The suit claims that “Macdonald later admitted she wanted to promote a ‘culture’ of vaccination at the Symphony. Granting accommodations based on religious beliefs—no matter how reasonable those accommodations were—was simply antithetical to the ‘culture’ Ms. Macdonald wanted to promote.”

The lawsuit also says that the symphony lifted its COVID-19 vaccine mandate in early August 2023 but hasn’t contacted the plaintiffs about reinstating their jobs, although Friedlander’s position has already been filled.

Details from a July 2023 email from Macdonald in the lawsuit said that although “[t]he health and safety of our musicians is our #1 priority,” she acknowledged that “mandates for [COVID-19 shots and boosters] do not exist” under federal and state law. Macdonald claimed that canceling the mandate was a move to bring the symphony in line with “industry standards.”

It also says the symphony’s “newfound flexibility was not the result of evolving science but the pursuit of $4 million in taxpayer money from the North Carolina General Assembly.”

“The legislature is in the home stretch of their budget negotiations where they are considering +$4M in financial recovery funding from the pandemic for the Symphony, and they are moving quickly behind the scenes,” Macdonald’s email continued. “If we are going to remove our mandate in the fall, it behooves us to do it now . . . to limit jeopardizing our relationships with the legislature.”

“Since the pandemic began, our priority has been to protect the health and safety of our musicians and staff, consistent with federal and state health guidelines and informed by the policies of other symphonies,” Linda Charlton, the symphony’s vice president for marketing and audience engagement said in an emailed statement to Carolina Journal after the suit was filed. “That approach led us to implement a vaccination requirement and more recently to revisit and lift that requirement. Our policies and actions have been consistent with applicable law and we look forward to responding at the appropriate time in court.”