Please forgive the ‘legal-speak’, but it’s easiest to share the full body of my final motion for summary judgement as submitted (pasted below). I have heaps and heaps of additional documentation and eager to share.

I have a long clinical career history – began as a Clinic Manager, then an Administrative Director for a small group of clinics, then a Public Health Project Manager for years with the State of Colorado. I had a wall in my office that was completely covered with all of the awards and certifications I’d been awarded.

Despite my award-winning efforts on COVID emergency projects, I was actually vaccine hesitant because of my work in HIV care – I see the staggering numbers moving through our budget via pharma versus other public funding representing a loud and clear conflict of interest. I’d been trained for years as a HIPAA expert and knew that the way this was being managed was certainly illegal.

Additionally, I reported these actions to  U.S. Department of Health and Human Services, Office for Civil Rights (OCR) – received under complaint number 26521514. I received a response stating that the matter would not be investigated. My repeated requests to OCR to investigate the case have remained unanswered.

STATE PERSONNEL BOARD, STATE OF COLORADO  

Case No. 2022B051  

COMPLAINANTS MOTION FOR SUMMARY JUDGMENT  

JODY DAVISON,  

Complainant,  

DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT,  Respondent.  

Complainant, Jody Davison hereby submits Motion for Summary Judgment 

Certificate of Conferral: Pursuant to State Personnel Board Rule 8-47.E.,  complainant conferred with Respondent regarding the filing of this motion.

1. Statement of Undisputed Facts
2. Ms. Davison was employed at CDPHE as a Program Administrator  (Program Assistant II). See Exhibits referenced in Respondent’s Amended Motion for Summary Judgment as: Ex. 1, Deposition of Ms. Davison at 13:18-20.  
3. When Ms. Davison began employment with CDPHE, she acknowledged  in writing that, as a condition of employment, she agreed, “to abide by Federal and  State employment laws, the State Personnel Board Rules and Personnel Director’s  Procedures, State of Colorado Universal Policies, and the policies established by  CDPHE.” See CDPHE Policies Memo Office of Human Resources signed by Ms.  Davison, See Exhibits referenced in Respondent’s Amended Motion for Summary Judgment as: Exhibit 2; Exhibit 10, Affidavit of Jessica Forsyth.  
4. On March 10, 2020, Governor Jared Polis verbally declared a disaster  emergency regarding the COVID-19 pandemic in Colorado. On March 11, 2020,  Governor Polis issued Executive Order D 2020 003, memorializing the disaster  declaration. The Governor’s verbal declaration of a disaster emergency is now  memorialized in Executive Order D 2021 122. Since that time, Governor Polis has  taken numerous steps to implement measures to mitigate the spread of disease  within Colorado, and has further required that several public health orders be  issued to implement his orders. Seventh Amended Public Health Order 20-38,  Limited COVID-19 Restrictions (September 30, 2021), at 1, available at  https://covid19.colorado.gov/public-health-executive-orders. 

1. On July 30, 2021, Governor Polis announced the “necessary measures  that must occur to ensure the State of Colorado is a model employer and to  maximize every tool at our disposal to keep both state employees and the public safe  from the COVID-19 pandemic.” Among these measures was that all state employees  would be required to attest and verify that they were fully vaccinated against  COVID-19. See Exhibits referenced in Amended Motion for Summary Judgment as: State Universal Policy – COVID-19 Vaccination and Serial Testing  Requirements, See Exhibits referenced in Respondent’s Amended Motion for Summary Judgment as: Exhibit 3, at p. 1.
2. On August 30, 2021, the state instituted the measures announced by  Governor Polis by issuing the State Universal Policy – COVID-19 Vaccination and  Serial Testing Requirements (“Universal Policy”).  
3. The Universal Policy states:  

Not Fully Vaccinated: Not fully vaccinated means received the final dose of a COVID-19 the Pfizer or Moderna vaccine less than two weeks ago or one dose of a two-dose COVID-19 vaccination series, has not been vaccinated or presented proof of being fully vaccinated or not vaccinated due to medical or religious accommodations Id., at p. 2.  

Statement of Policy Beginning September 7, 2021, employees shall attest to and submit proof of their COVID-19 vaccination status. Effective September 20, 2021, employees who have not attested to their fully vaccination status as required, who are in the process of receiving the vaccine until they are fully vaccinated, or who have identified that they are not vaccinated, shall submit to serial testing and report their results on a twice-weekly basis as directed by their department  Id., at p. 2. 

Testing Not vaccinated employees are required to submit to twice-weekly serial testing and provide test results as directed by their department’s human resources office in compliance with guidance provided by the Department of Personnel & Administration. Employees who fail to provide their vaccine status and documentation in violation of this Policy are also required to submit to twice-weekly serial testing until they are in compliance with this policy. Id., at p. 2. 

Confidentiality and Data Security …Asking for proof of vaccination does not violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Id., at p. 4

Appointing Authorities, Managers, Supervisors: Appointing authorities, managers, and supervisors, as delegated, have specific responsibilities which include, but are not limited to,adhering to this Policy, their department’s policy, and supporting employees and individuals in complying with this Policy. Id., at p. 4-5

1. Ms. Davison did not attest to her vaccination status. See Exhibits referenced in Respondent’s Amended Motion for Summary Judgment as: Exhibit 1, at 81:6-19; Exhibit 10. 
2. On September 14, 2021, guidance from Joi Simpson, Human Resources Director, to CDPHE All Staff  states See Exhibit B, attached.

 “If employees choose not to report vaccination status, they will be considered not vaccinated” 

1. On September 17, 2021 ‘COVID 19 Testing Requirements’ guidance to CDPHE Management, Leadership Team Google, and other recipients states. See Exhibit C, attached.  

“State employees who have not received a COVID-19 vaccination or have not disclosed their vaccination status, are required to begin testing…” 

1. On September 17, 2021 ‘COVID-19 Vaccination or Testing Exemption Information’ guidance from Joi Simpson, Director of Human Resources to CDPHE All Staff states: See Exhibit D, attached.

“Testing is the option for the unvaccinated, partially vaccinated or staff with a medical exemption from vaccination for positions that require attestation or testing … for staff who work in a vaccination required position, you may be required to pause work in the office, work in the community, or asked to stop work until the request is reviewed” 

1. Ms. Davison was not required to pause or stop work while the request was in review. 
2. On September 28, 2021 message from Daniel McKenna, COVID-19 Response safety worker quotes , See Exhibit F, attached 

“… if you are unvaccinated, partially vaccinated, or do not report your status, then you are required to test…” 

1. On September 29, 2021 quotes, See Exhibit G, attached

 “Thank you for providing the request for exemption. We will follow up with additional details in the coming days and weeks. We will review the request and be back in touch if we require any additional information. We will also provide guidance on how your work may be affected while we review the request. While we review the request, no Disciplinary Actions will be taken” 

1. Ms. Davison was terminated while this request was in review. 
2. October 11, 2021 COVID-19 Vaccination Medical & Religious Reasonable Accommodations states: Exhibit H attached 

Overview: “…Agencies are strongly encouraged to provide reasonable work accommodations when they do not cause undue hardship or present a direct threat to the workplace”   Id., at p. 1.  

Working from Home Many jobs can be done from home or another worksite without vaccine mandates. Working away from customers and co-workers could be an appropriate accommodation…” Id., at p. 1.  

If you have not been vaccinated “…if you are not vaccinated, or you do not provide documentation of full vaccination, you will be required to participate in mandatory testing. Further instructions will be coming from HR…” Id., at p. 2.

1. 16. Diagnostic Testing and Vaccination Policy42 Exhibit M, attached.

“All workers who have regular contact with the general public are expected and required to submit to periodic testing …” Id., at p. 2.

“Appointing authorities must: …  2. Make the appropriate notifications as required by this policy… 3. Comply with all recordkeeping and confidentiality requirements of this policy.” Id., at p. 2.

“All workers are required to sign acknowledgement of this policy at the time of a required test or vaccination. These forms will be placed in the worker’s official medical records … that are maintained by the Office of Human Resources” Id., at p.3

1. Ms. Davison was never asked to sign an acknowledgement of this policy at the time of a required test, per Diagnostic Testing and Vaccination Policy as stated, therefore never formally Ordered to report to Testing. 
2. Pursuant to the above Exhibits and undisputed facts provided, Ms. Davison believed that the result of her non-attestation, as stated above, would be that she shall be considered unvaccinated. 
3. On October 12, 2021, CDPHE issued Ms. Davison a corrective action for failure to attest to her vaccination status and submitting a religious exemption. See Exhibits referenced in Amended Motion for Summary Judgment as: October 12, 2021 Corrective  Action, attached as Exhibit 5. The Corrective Action instructed Ms. Davison to, on  or before October 15, 2021, attest to her vaccination status. Id. at p. 2.  
4. On October 20, 2021, CDPHE notified Ms. Davison that it was  considering disciplinary action due to her failure to comply with the COVID-19  Vaccination and Serial Testing Requirements Universal Policy, the CDPHE 10.42  Diagnostic Testing and Vaccination Policy, and the October 12, 2021 Corrective  Action. See Exhibits referenced in Amended Motion for Summary Judgment as:Exhibit 6, at p. 1.  
5. On October 29, 2021, Ms. Davison’s appointing authority, Director of  HIV/STI/VH Office Jessica Forsyth, held a pre-disciplinary meeting with Ms.  Davison pursuant to State Personnel Board Rule 6-10. See Exhibits referenced in Amended Motion for Summary Judgment as:Exhibit 7, Video  Recording of October 29, 2021 Rule 6-10 Meeting.  
6. The stated purpose of the R-6.10 meeting is to “share any information that might lessen the severity of the action or reasons that no disciplinary action should be taken” per State Board Personnel Rules 
7. On November 17, 2021, per R-6.10 guidance, Ms. Davison submitted a written response to  the issues discussed at the Rule 6-10 meeting to lessen the severity of the action and share reasons that no disciplinary action should be taken, including unrefuted evidence from the CDC that people may equally catch COVID-19 from a vaccinated or unvaccinated individual. See Exhibits referenced in Respondents Amended Motion for Summary Judgment as:November 17, 2021 Exhibit 8,  November 17, 2021 e-mail from Ms. Davison to Jessica Forsyth and Adam Roybal.
8. On December 16, 2021, Ms. Forsyth found that Ms. Davison violated the Universal Policy by failing to attest to her vaccination status, stating that the persistent refusal to comply with the Universal Policy, and  directives from your supervisors “constitute[d] insubordination and willful  misconduct, as set forth in Board Rules 6.12.B.1, 6-12.B.2, and 6-12.B.3.” See Exhibits referenced in Respondents Amended Motion for Summary Judgment as: Exhibit 9. at p. 3.; Exhibit 10.
9. In determining the appropriate disciplinary action related to Ms. Davisons non-attestation and submitting a religious exemption, Ms. Forsyth is required to consider all factors enumerated in Board Rule 6-11,  including (1) the nature, extent, seriousness, and effect of the performance issues or  conduct, (2) the type and frequency of prior unsatisfactory performance or conduct  (including any prior performance improvement plans, corrective actions or  disciplinary actions), (3) the period of time since any prior unsatisfactory performance or conduct, (4) prior performance evaluations, (5) mitigating  circumstances, and (6) information discussed during the Rule 6-10 meeting,  including information provided by Ms. Davison. See Exhibits referenced in Respondents Amended Motion for Summary Judgment as: Exhibit 9 at p. 3-4.; Exhibit 10.  
10. Ms. Forsyth made detailed written findings as to each of these factors by reiterating policies as stated, and did not address the religious exemption held in review, nor new facts and requests that Ms. Davison shared in the R 6-10 meeting, including the unrefuted CDC data shared displaying that people may catch COVID equally from vaccinated and unvaccinated individuals.  See Exhibits referenced in Respondents Amended Motion for Summary Judgment as:Exhibit  9 at p. 3-4. 
11. On December 21, 2021, Ms. Davison timely appealed her termination  to the Board. See December 16, 2021 Appeal, See Exhibits referenced in Respondents Amended Motion for Summary Judgment as: attached as Exhibit 11.  
12. Summary Judgment Standard

Colo. R. Civ. P. 56(b) permits a party to file a motion for summary judgment  where there is no genuine issue as to any material fact that the moving party is  entitled to a judgment as a matter of law. Summary judgment permits the parties  to pierce the formal allegations of the pleadings and save the time and expense  involved in a trial when, as a matter of law and based on undisputed facts, one  party could not prevail. Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d  231, 238 (Colo. 1984).  

The burden of establishing the nonexistence of a genuine issue of material  fact is on the moving party. Continental Air Lines, Inc., v. Keenan, 731 P.2d 708,  712 (Colo. 1987). This burden is satisfied by demonstrating that there is an absence  of evidence in the record to support the nonmoving party’s case. Id. Once the  moving party meets this initial burden, the burden shifts to the nonmoving party to  establish that there is a triable issue of fact. The nonmoving party cannot rest upon  mere allegations or denials; rather, it must present specific facts showing the  existence of a genuine and material factual dispute. Id. at 713.  

III. There Are No Genuine Disputes of Material Fact Regarding Ms. Davison’s Termination.

Jody Davison moves for summary judgment per evidence that her termination was (1) arbitrary and capricious, and (2) contrary to rule or law.  

1. Jurisdiction of the State Personnel Board and Standard of  Review Applicable to Personnel Actions  

“A person certified to any class or position in the personnel system may be  dismissed, suspended, or otherwise disciplined by the appointing authority . . . for  willful misconduct, willful failure or inability to perform his duties . . .” Colo.  Const., art. XII, § 13(8); C.R.S. § 24-50-125(1). Where a certified employee timely  appeals an appointing authority’s disciplinary action and requests a hearing, the  Administrative Law Judge conducting such a hearing must make written findings 

of fact and conclusions of law and render an initial decision affirming, modifying, or  reversing the disciplinary action. C.R.S. §§ 24-50-125(4) to -125.4(3), C.R.S.  (2020); Dep’t of Corr., Denver Reception & Diagnostic Ctr. v. Stiles, 2020 CO 90M, ¶  29.  

The standard of review applicable to a certified employee’s appeal of a  disciplinary action is set forth in C.R.S. 24-50-103(6), which provides that a  disciplinary action may be reversed or modified if it is “arbitrary, capricious, or  contrary to rule or law.” Stiles, ¶ 37. Importantly, the Colorado Supreme Court has  clarified that “[u]nlike de novo review, the arbitrary, capricious, or contrary to rule  or law standard accords a degree of deference to the appointing authority’s  disciplinary action.” Id. at ¶ 3. Accordingly, “in reviewing an appointing authority’s  disciplinary action, the ALJ must logically focus on two analytical inquiries: (1)  whether the alleged misconduct occurred; and, if it did, (2) whether the appointing  authority’s disciplinary action in response to that misconduct was arbitrary,  capricious, or contrary to rule or law.” Id. at ¶ 38.  

1. Analysis  

Ms. Davison argues that her termination was arbitrary, capricious and contrary to rule of law. There is no genuine issue of material fact and the undisputed facts demonstrate that CDPHE did not comply with the applicable statutes and personnel procedures. Therefore, Ms. Davison’s termination was arbitrary, capricious, or contrary to rule or law.  

1. Ms. Davison Committed the Act for Which She Was Disciplined, however, all exhibits state that this act shall result in being considered unvaccinated and due for a testing requirement, not disciplinary action. 

As stated in the December 16, 2021 Disciplinary Action, Ms. Forsyth  determined that Ms. Davison engaged in insubordination and willful misconduct  when she did not attest to her vaccination status. See Exhibits referenced in Respondents Amended Motion for Summary Judgment as:Exhibit 9. 

Ms. Davison never received a formal Order to Test per Diagnostic Testing and Vaccination Policy 10.42, nor was considered for reasonable accommodations.

1. Ms. Davison’s Termination Was Arbitrary and Capricious  

In determining whether a decision is arbitrary or capricious, a court must  determine whether the agency has: 1) neglected or refused to use reasonable  diligence and care to procure such evidence as it is by law authorized to consider in  exercising the discretion vested in it; 2) failed to give candid and honest  consideration of evidence before it on which it is authorized to act in exercising its  discretion; or 3) exercised its discretion in such manner after a consideration of  evidence before it as clearly to indicate that its action is based on conclusions from  the evidence such that reasonable people fairly and honestly considering the  evidence must reach contrary conclusions. Lawley v. Dep’t. of Higher Education, 36  P.3d 1239, 1252 (Colo. 2001); see also Stiles, ¶ 44.  

Here, there is evidence that Ms. Forsyth did not use reasonable diligence to collect  information regarding the appropriate disciplinary action for Ms. Davison’s non-attestation and submission of a religious exemption. See Exhibits referenced in Amended Motion for Summary Judgment as:Exhibit 9;  Exhibit 10.  

The seriousness of Ms. Davisons non-attestation is defended only by claims of safety risk, yet the fact that people may catch COVID-19 from vaccinated or unvaccinated individuals went unrefuted, and this safety risk depends on public exposure, not attestation. 

The act of non-attestation or submission of religious exemption, per Davison’s termination, are not connected to the safety of co-workers and Colorado Communities. Said safety may be determined by level of exposure to others, not submission of vaccination status or lack thereof. The effect of Ms. Davisons non-attestation is only that the State does not hold this PHI, not that the safety of others is impacted. 

Said result of non-attestation is that Ms. Davison should be considered unvaccinated. This is not a terminable offense. Additionally, Ms. Davison was not required to pause or stop work nor offered reasonable accommodations while the Religious Exemption request was in review. 

Ms. Forsyth determined that “after carefully weighing”  the factors set forth in Rule 6-11, Ms. Davison’s “failure to comply with the  Universal Policy places the health and safety of [her] co-workers, our Colorado  communities, and the population we serve at risk. Therefore, [her] refusal to comply  with the Universal Policy and directives could have serious effects. The serious  nature of [her] insubordination and misconduct justify termination.” See Exhibits referenced in Amended Motion for Summary Judgment as: Exhibit 9,  at p. 4.; Exhibit 10.  

Importantly, Ms. Forsyth rendered her disciplinary decision in the context of  the unprecedented danger posed by COVID-19, which, as of the issuance of Seventh  Amended Public Health Order 20-38 on September 30, 2021, had resulted in the  hospitalization of 38,548 Coloradans and the death of another 7,543  Coloradans. See Seventh Amended Public Health Order 20-38 at 1-2. 

The  realities of the danger posed by COVID-19 and CDPHE’s obligation to protect the  health and safety of its employees and those it serves relies upon the or public exposure of individuals, upon which, Ms. Davison’s non-attestation and submission of a religious exemption has no impact. 

Arguably, had Ms. Davison been required to report to twice weekly testing, her exposure to others would be greatly increased, as her work was 100% remote and her work did not require her to leave home otherwise. 

This dictates a conclusion that her termination was arbitrary and capricious.  

Because the undisputed facts demonstrate that non-attestation and submission of a religious exemption are not reasonable reason for termination, Ms. Forsyth’s decision was arbitrary and capricious, Jody Davison is entitled to judgment as a  matter of law upholding that decision under C.R.S. § 24-50-103(6).  

CDPHE’s decision to terminate Ms. Davison violated rules and policies as stated.  As such, Jody Davison is entitled to judgment as a matter of law finding her termination as arbitrary and capricious.  

1. Conclusion

Jody Davison respectfully requests the Board enter summary judgment in favor of  Ms. Davison as to her appeal of termination.  

Respectfully submitted on this 17th day of March, 2022.