Judge rules fired Tennessee vaccine official Dr. Michelle Fiscus cannot pursue monetary damages

An attorney for Fiscus says they plan to appeal

By: - January 19, 2022 6:30 am
The State of Tennessee spent $11 million on messaging before firing Dr. Michelle Fiscus for spreading the message approved by Gov. Lee's office. (Photo: John Partipilo)

The State of Tennessee spent $11 million on messaging before firing Dr. Michelle Fiscus for spreading the message approved by Gov. Lee’s office. (Photo: John Partipilo)

A federal judge has ruled that former Tennessee vaccination chief Dr. Michelle Fiscus cannot pursue claims for monetary damages against the state’s top two Department of Health officials after her controversial firing last summer — but the remainder of her lawsuit seeking a ‘name-clearing hearing’ and a finding that the state violated her constitutional rights continues on.

U.S. District Judge Waverly Crenshaw, Jr. ruled that the two state officials — Department of Health Commissioner Lisa Piercy and Chief Medical Officer Tim Jones — are entitled to “qualified immunity,” a legal doctrine that can shield government officials from lawsuits over actions taken in the course of their jobs.

Fiscus plans to appeal the ruling to the 6th U.S. Circuit Court of Appeals, her attorney, Chris Smith, said Tuesday.

“We respect the Court’s ruling and the decision to allow the claim for injunctive relief to move forward,” Smith said in an emailed statement.  “We think it is appropriate for the Sixth Circuit to weigh in on the qualified immunity issue, so we intend to appeal that portion of the Court’s ruling.”

A spokeswoman for the Attorney General, which is defending the lawsuit, did not provide comment.

Fiscus filed suit against Piercey and Jones in September, claiming she was fired and her reputation deliberately tarred after her bosses succumbed to intense political pressure from conservative lawmakers upset with the department’s messaging to teenagers about COVID-19 vaccines — pressure that included an explicit threat during a legislative committee hearing to dissolve the department entirely.

Fiscus served as medical director of the Vaccine-Preventable Diseases and Immunization Program at the Department of Health until her termination on July 12.

This means it's OK for people in the state to declare publicly something completely false about an individual and that individual has no recourse. I think that's disturbing.

– Dr. Michelle Fiscus

Republican lawmakers specifically citied as a point of outrage a memo Fiscus wrote and distributed to vaccine providers outlining the process for teens to access medical care, including vaccines, without parental permission under the state’s “mature minor doctrine.”  The memo usurped parental authority, some lawmakers claimed. The memo, Fiscus noted in the lawsuit, was crafted with language given to her by a department attorney, who advised her the message was “blessed by the Governor’s office.”

Three days after Fiscus was fired, health department officials circulated a memo to media and others that pointedly criticized Fiscus’ performance at the department.  Fiscus claims she was never shown the memo, written by Jones, nor was she given a chance to defend herself against allegations it contained, which included — among other things — that Fiscus tried to steer state funding to nonprofit organization that she founded. Fiscus did not financially benefit from the nonprofit, ImmunizeTN, whose mission is to ensure all Tennessee residents benefit from vaccines and whose creation had previously drawn praise from Jones, the lawsuit said.

Fiscus also said she received a dog muzzle from Amazon at work from an anonymous sender. The muzzle was purchased using an Amazon account that someone set up in her name with a credit card she reported lost more than a year ago, Fiscus claims in her lawsuit.  A colleague contacted the Department of Homeland Security to report the muzzle as a possible threat.

Fiscus said on Tuesday that the “state is still fighting not to release the Department of Safety report saying I sent that muzzle to myself. It’s odd.”

In his ruling in the case on January 6, Crenshaw said: “the Court cannot say that Defendants’ actions did not violate Dr. Fiscus’ constitutional rights and, in particular, her right to due process.”

“What the Court can say is Dr. Fiscus has not shown the right to be clearly established, particularly since qualified immunity is intended to ‘protect all but the plainly incompetent or those who knowingly violate the law.'”

Fiscus in a phone interview Tuesday said she was disturbed at the message the court decision sent.

“This means that it’s OK for people in the state to declare publicly something completely false about an individual and that individual has no recourse,” Fiscus said. “I think that’s disturbing.”

 

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Anita Wadhwani
Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. Wadhwani lives in Nashville with her partner and two children.

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