throbber
Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 1 of 71 PageID 546
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE (Jackson)
`
`
`SYMANTHA REED, an individual; CHARLES
`GOETZ, an individual; JAMES SPAULDING,
`an individual; GARY CRAWFORD, an
`individual; WENDY WHARTON, an individual;
`and MICHELLE WHITEHEAD, an individual;
`
`
` Civil Action No.: 1:21-cv-01155-STA-jay
`
`
`AMENDED VERIFIED COMPLAINT
`
`
`
`
`
`
`
`
`
`[JURY TRIAL DEMANDED]
`
`
`
`
`
`
`
`
`TYSON FOODS, INC., a corporation,
`
`
`Plaintiffs,
`
`v.
`
`Defendant.
`
`
`
`
`
`
`
`1.
`
`
`
`
`
`
`
`
`
`
`
`INTRODUCTION
`
` Article I, Section 2 of the Tennessee Constitution states: “That government being
`
`instituted for the common benefit, the doctrine of nonresistance against arbitrary power
`
`and oppression is absurd, slavish, and destructive of the good and happiness of
`
`mankind.”
`
`2.
`
` Plaintiffs Symantha Reed, Charles Goetz, James Spaulding, Gary Crawford, Wendy
`
`Wharton, and Michelle Whitehead (collectively, “Plaintiffs”), seek relief from
`
`Defendant Tyson Foods, Inc.’s (“Tyson”)’s pattern of discriminatory, unconstitutional,
`
`and illegal behavior against employees who request religious or medical exemptions
`
`from Tyson’s COVID-19 vaccination mandate policy.
`
`3.
`
` On August 3, 2021, Tyson imposed a draconian vaccine mandate for all employees.
`
`Tyson’s mandate addresses a very remote risk, asymptomatic deadly spread of COVID-
`
`
`
` 1
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 2 of 71 PageID 547
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`19 to fellow employees, by a method (vaccination) that poses a higher risk of deadly
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`spread of COVID-19 than asymptomatic spread.
`
`4.
`
` Tyson responded to their employees seeking medical or religious exemptions by
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`informing those employees that they would be effectively terminated on November 1,
`
`2021 and placed on unpaid leave of absence with no assurance that they would be
`
`allowed to return to the workplace for up to one year. Now that the November 1, 2021
`
`deadline has passed, Tyson employees who are unvaccinated are terminated, either
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`actually or constructively through unpaid leave.
`
`5.
`
` Tyson’s unlawful actions left Plaintiffs with the impossible choice of suffering a
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`physical assault and uninvited invasion of their body by receiving the experimental
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`COVID-19 vaccine, at the expense of their religious beliefs, bodily autonomy, medical
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`privacy, and their health, or losing their livelihoods and being unable to provide food,
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`housing, and support for themselves and their families.
`
`6.
`
` This Faustian bargain is no bargain at all, and is precisely what is forbidden by
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`federal and Tennessee civil rights law.
`
`7.
`
` Tyson’s actions violated federal and Tennessee law by mandating an experimental
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`medical treatment, retaliating against employees who engaged in protected activity,
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`failing to provide reasonable accommodations for exemptions, and violating the sacred
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`rights of privacy and bodily integrity.
`
`8.
`
` The plaintiffs seek this court to order that Tyson comply with the laws protecting the
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`rights of Tennesseeans against precisely such catch-22 “choices.”
`
`
`
` 2
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`
`
`///
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`///
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 3 of 71 PageID 548
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`PARTIES
`
`9.
`
` Plaintiff Symantha Reed is a registered nurse at Tyson’s plant in Newbern,
`
`Tennessee, (“Newbern plant”) who requested an exemption from the mandatory
`
`vaccination on religious and medical grounds. Her medical exemption was denied. She
`
`declined to receive the mandatory vaccination and has been placed on unpaid leave.
`
`She is a citizen of Tennessee.
`
`10.
`
` Plaintiff Charles Goetz is a maintenance supervisor at Tyson’s plant in Union City,
`
`Tennessee, (“Union City plant”) who worked for 23 years at Tyson. He declined to
`
`receive the mandatory vaccination for religious reasons and has been placed on unpaid
`
`leave. He is a citizen of Tennessee.
`
`11.
`
` Plaintiff James Spaulding was a registered nurse at Tyson’s Newbern plant who filed
`
`for an exemption for religious reasons. He declined to receive the mandatory
`
`vaccination and has been placed on unpaid leave. He is a citizen of Tennessee.
`
`12.
`
` Plaintiff Gary Crawford was a supervisor at Tyson’s Newbern plant who sought a
`
`vaccine exemption on religious grounds. He was forced to leave his position at Tyson
`
`and seek alternative employment due to the vaccine mandate. He is a citizen of
`
`Tennessee.
`
`13.
`
` Plaintiff Wendy Wharton was a quality assurance employee at Tyson’s Newbern
`
`plant who asked for an exemption on religious grounds. She declined to receive the
`
`mandatory vaccination and has been placed on unpaid leave. She is a citizen of
`
`Tennessee.
`
`14.
`
`
`
` Plaintiff Michelle Whitehead, a manager at the Newbern plant, suffers from oxalate
`
`kidney syndrome and sought a medical exemption from the COVID-19 vaccine on
`
`
`
` 3
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`
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 4 of 71 PageID 549
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`medical grounds. She was forced to receive the experimental mRNA vaccine to keep
`
`her employment. She is a citizen of Tennessee.
`
`15.
`
` Defendant Tyson Foods, Inc. (“Tyson”), together with its subsidiaries, is a
`
`corporation that operates as a worldwide food processing and marketing company.
`
`16.
`
` Tyson is the world's second largest processor and marketer of chicken, beef, and
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`pork. Tyson employs approximately 139,000 people in the United States and operates
`
`five facilities in the state of Tennessee. Tyson’s facilities throughout Tennessee employ
`
`thousands of people. A key plant at issue in this case is Tyson’s plant at Newbern,
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`located in Dyer County, Tennessee.
`
`17.
`
` Defendant Tyson acted as a federal officer, pursuant to 28 U.S.C. § 1442, and
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`followed the directives of the federal government and its agencies when implementing
`
`its vaccine mandate.
`
`18.
`
` At all relevant times, Tyson knew or should have known of the laws, policies,
`
`practices, and conditions alleged herein.
`
`JURISDICTION AND VENUE
`
`19.
`
` This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1442(a)(1). On October 15, 2201, Tyson removed this action from where it was
`
`originally filed, in Dyer County Chancery Court for the State of Tennessee, to this
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`federal court [Doc. No.1]. On November 3, 2021, this Court denied Plaintiffs’ Motion
`
`To Remand this action to state court, on the grounds that Tyson properly removed the
`
`action under 28 U.S.C. § 1442(a)(1) [Doc. No. 20].
`
`
`
` 4
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 5 of 71 PageID 550
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`20.
`
` Pursuant to 28 U.S.C. § 1391(e), venue is proper in the Western District of
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`Tennessee, where Plaintiffs reside, Tyson transacts business, and the wrongful conduct
`
`and resulting injuries alleged herein substantially occurred in this state.
`
`21.
`
` An actual and justiciable controversy exists between Plaintiffs and Defendant.
`
`FACTS
`
`A.
`
`Coronavirus and Tyson’s Unlawful Vaccine Mandate
`
`22.
`
` The novel coronavirus SARS-CoV-2, which causes the disease COVID-19, is a
`
`contagious virus which spreads via person-to-person contact and through the air.
`
`23.
`
` In the spring of 2020, Tyson began implementing mitigation procedures for its
`
`workforce, including several of the following requirements for its employees: masks,
`
`face shields, social distancing, temperature checks, COVID-19 testing,1 and self-
`
`quarantine measures.2 Tyson also made several accommodations for hourly
`
`employees.3 For example, in March of 2020, the company relaxed attendance policies
`
`in its plants by “[]eliminating any punitive effect for missing work due to illness.”4
`
`
`1 Tyson Foods, Tyson Foods CEO Provides Update on Efforts to Address COVID-19 (April
`6, 2021) available at https://www.tysonfoods.com/news/news-releases/2020/4/tyson-foods-
`ceo-provides-update-efforts-address-covid-19 (last visited Sept. 27, 2021); Tyson Foods,
`Why Tyson Has Taken a Leading Position on COVID-19 Testing (July 1, 2021) available at
`https://thefeed.blog/2020/07/01/covid-19-testing-at-tyson-foods/ (Last visited Sept. 27,
`2021).
`2 Tyson Foods, Protecting Team Members and Our Company; Ensuring Business Continuity
`(March 17, 2020) available at https://www.tysonfoods.com/news/news-
`releases/2020/3/protecting-team-members-and-our-company-ensuring-business-continuity
`(last visited Sept. 27, 2021); Chattin Cato, Tyson Team Innovates to Make Face Shields for
`Frontline Workers (July 6, 2021) available at https://thefeed.blog/2020/07/06/tyson-
`innovates-to-make-face-shields-for-frontline-workers/ (last visited Sept. 27, 2021).
`3 Ibid.
`4 Ibid.
`
`
`
` 5
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`
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 6 of 71 PageID 551
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`24.
`
` Tyson experienced substantial success reducing the risk of COVID-19 spread
`
`through self-quarantining for the symptomatic and testing for the asymptomatic
`
`persons.
`
`25.
`
` Despite this, after sixteen months of effective measures, Tyson opted to disregard
`
`empirical evidence and scientific studies, and implemented a mandate requiring bodily
`
`invasion against a person’s will of an experimental drug with unknown long term side
`
`effects due to its novel mRNA methodology, with the worst short-term adverse events
`
`reported in the government’s VAERS database in American history, and whose
`
`administration offends the conscience of millions of Americans’ deeply held spiritual
`
`beliefs and religious faith due to the use of aborted fetal cells in its testing, development
`
`and production of each of these experimental vaccines.
`
`26.
`
` On approximately August 3, 2021, Tyson publicly announced it would require all
`
`“[]team members at U.S. office locations to be fully vaccinated by October 1, 2021.”5
`
`(A true and correct copy of Tyson’s August 3, 2021 COVID-19 vaccine mandate, is
`
`attached as Exhibit A, and incorporated herein by reference). Tyson also announced that
`
`all other team members, thus including plant team members, would be required to be
`
`vaccinated by November 1, 2021.6
`
`27.
`
` Tyson publicly stated that “Exceptions to the vaccination mandate will involve
`
`workers who seek medical or religious accommodation.”7
`
`
`5 Tyson Foods, Tyson Foods to Require COVID-19 Vaccination for its U.S. Workforce
`(Aug. 3, 2021) available at https://www.tysonfoods.com/news/news-releases/2021/8/tyson-
`foods-require-covid-19-vaccinations-its-us-workforce (last visited Sept. 27, 2021).
`6 Exhibit A.
`7 Ibid.
`
`
`
` 6
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 7 of 71 PageID 552
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`28.
`
` In announcing the mandate, Tyson CEO Donnie King justified the decision by
`
`claiming, “[]the U.S. Centers for Disease Control and Prevention is reporting nearly all
`
`hospitalizations and deaths in the U.S. are among those who are unvaccinated”
`
`(emphasis added).8 As set forth herein below, Mr. King’s statement was false.
`
`29.
`
` To seek an exemption, Tyson required employees fill out an official form and turn it
`
`into the HR department. Tyson also allowed for an accommodation letter to be sent to
`
`the HR department as well as to the plant managers.
`
`30.
`
` Tyson offered those who applied for an accommodation up to one year of unpaid
`
`leave of absence or until they received the vaccine. (A true and correct copy of Tyson’s
`
`“Explanation of Leave + Accommodation” policy, is attached as Exhibit B, and
`
`incorporated herein by reference; A true and correct copy of Tyson’s letter to
`
`employees who request a disability or religious accommodation dated September 17,
`
`2021, is attached as Exhibit C and incorporated herein by reference.) They were
`
`informed that after one year they would be effectively terminated from their position at
`
`Tyson. Ibid. Tyson employees were also informed that even if they did receive the
`
`vaccine their positions would not be guaranteed. Ibid.
`
`31.
`
` In response to Chares Goetz refusal to get the vaccine, his supervisor at Tyson
`
`offered Mr. Goetz a promotion if he were to just get the vaccine.
`
`32.
`
` In response to Charles Goetz’s religious accommodation request his superior
`
`responded that Mr. Goetz should just get the vaccine then ask God for forgiveness.
`
`
`8 Donnie King, Our Next Step inn the Fight Against the Pandemic (Aug. 3, 2021) available
`at https://web.archive.org/web/20210803143911/https://thefeed.blog/2021/08/03/our-next-
`step-in-the-fight-against-the-pandemic/ (last visited Sept. 27, 2021).
`
`
` 7
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`
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 8 of 71 PageID 553
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`33.
`
` Symantha Reed has had communication with HR in which they refuse to set tell her
`
`whether they will grant her accommodation request or not. The HR personnel has
`
`refused to sign the accommodation, and Ms. Reed has experienced hostility from HR
`
`personnel throughout the entire process.
`
`34.
`
` Tyson has stated to Ms. Reed that she must accept the accommodation as quickly as
`
`possible and if not accepted then on November 1, 2021 Tyson will be sending out
`
`separation letters. Tysons HR department has stated that they need an answer by
`
`October 18 as to the acceptance of the accommodation. A true and correct copy of a
`
`transcription of Plaintiff Symantha Reed’s conversation with Ronda Gooch, HR
`
`Manager Tyson, dated September 20, 2021, is attached as Exhibit D and incorporated
`
`herein by reference.)
`
`35.
`
` Tyson HR stated that this accommodation may not even be available by November 1
`
`as a way to pressure and coerce their employees to either take the vaccine or make a
`
`decision as quickly as possible. (Exhibit D.)
`
`36.
`
` Since Tyson’s November 1, 2021 deadline has passed, Plaintiffs who have refused to
`
`receive the COVID-19 vaccine have been offered only unpaid leave, with the
`
`alternative being immediate termination.
`
`B.
`
`37.
`
`Tyson Exaggerates the Specter of the Virus to Justify the Vaccine Mandate
`
` Tyson maintains several facilities across Tennessee, including sites in Dyer, Obion
`
`and Gibson counties on the western side of the state.9
`
`
`9 Charles Choate, West Tennessee Lawmakers Ask Tyson Foods to Reconsider Vaccine
`Mandate, WCMT (Aug. 20, 2021) https://www.thunderboltradio.com/west-tennessee-
`lawmakers-ask-tyson-foods-to-reconsider-vaccine-mandate/ (last visited Sept. 27, 2021); see
`also, available at Melissa Moon, Employees at Tennessee Tyson Foods plant fight vaccine
`mandate, WJHL (Aug. 11, 2021) available at https://www.wjhl.com/national-coronavirus-
`
`
` 8
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`
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 9 of 71 PageID 554
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`38.
`
` Tyson’s Chief Medical Officer, Dr. Claudia Coplein, appealed to fear, not science,
`
`when she publicly opined that forced vaccination was the “single most effective” thing
`
`Tyson could do because unvaccinated people were causing rising case counts.10
`
`39.
`
` But data from Tennessee Department of Health (“TDH”) does not support Dr.
`
`Coplein’s hyperbolic remarks. TDH reports 7,796 cases of COVID-19 in Dyer County
`
`since March of 2020.11 As of September 24, 2021, TDH reports 7,377 of the 7,796
`
`cases of COVID-19 are considered either “inactive” or “recovered.”12 This is true even
`
`though only 31.6 percent of the county is fully vaccinated.13 Thus far, only 131 deaths
`
`caused or associated with COVID-19 have been reported in Dyer County since the
`
`advent of the virus nearly two years ago.14
`
`40.
`
` Similarly, in Obion County, THD’s COVID dashboard shows 6,727 cases of
`
`COVID-19 have been reported since March of 2020.15 Like in Dyer County, the vast
`
`majority of the reported cases in Obion County show either “inactive” or “recovered.”16
`
`
`coverage/employees-at-tennessee-tyson-foods-plant-fight-vaccine-mandate/ (last visited
`Sept. 27, 2021).
`10 Tyson Foods, Tyson Foods to Require COVID-19 Vaccination for its U.S. Workforce
`(Aug. 3, 2021) available at https://www.tysonfoods.com/news/news-releases/2021/8/tyson-
`foods-require-covid-19-vaccinations-its-us-workforce (last visited Sept. 27, 2021).
`11 Tennessee Department of Health, COVID-19 Data for: Dyer County (Sept. 24, 2021)
`available at https://covid19.tn.gov/data/dashboards/?County=Dyer (last visited Sept. 27,
`2021).
`12 Ibid.
`13 Tennessee Department of Health, Tennessee COVID-19 Vaccination Reporting (Sept. 26,
`2021) available at https://data.tn.gov/t/Public/views/TennIISCOVID-
`19VaccineReporting/SUMMARY?:showAppBanner=false&:display_count=n&:showVizH
`ome=n&:origin=viz_share_link&:toolbar=no&:embed=yes (last visited Sept. 27, 2021).
`14 COVID-19 Data for: Dyer County.
`15 Tennessee Department of Health, COVID-19 Data for: Obion County (Sept. 24, 2021)
`available at https://covid19.tn.gov/data/dashboards/?County=Obion (last visited Sept. 27,
`2021).
`16 Ibid.
`
`
`
` 9
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`
`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 10 of 71 PageID 555
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`This is despite the fact that only 32.7 percent of the county is fully vaccinated.17 Data
`
`for Obion County shows only 105 reported deaths as a result of COVID-19 since
`
`March of 2020.18
`
`41.
`
` What is more, in Gibson County, TDH reports 10,164 cases of COVID-19 since
`
`approximately March of 2020.19 Currently, 9,559 of those cases are considered
`
`“inactive” or recovered”, even though only 36.8 percent of the county is fully
`
`vaccinated.20 Like in the other two counties, data for Gibson County shows most people
`
`do not die from COVID-19 with only 178 deaths being reported since March of 2020.21
`
`42.
`
` Thus, TDH’s data shows that even in counties with low vaccination rates, the
`
`overwhelming majority of people do not die from COVID-19, nor end up even being
`
`hospitalized.22 Yet, Tyson grossly exaggerates the specter of the virus, appealing to
`
`fear, not rationality, in a failed attempt to justify its unlawful mandate on its employees.
`
`C.
`
`The Risks Associated with Coronavirus
`
`43.
`
` Coronavirus presents a risk primarily to individuals aged 8523 or older and those
`
`with comorbidities such as hypertension and diabetes.24
`
`
`17 Tennessee COVID-19 Vaccination Reporting.
`18 COVID-19 Data for: Obion County.
`19 Tennessee Department of Health, COVID-19 Data for: Gibson County (Sept. 24, 2021)
`available at https://covid19.tn.gov/data/dashboards/?County=Gibson (last visited Sept. 27,
`2021).
`20 Tennessee COVID-19 Vaccination Reporting.
`21 COVID-19 Data for: Gibson County.
`22 See, COVID-19 Data for: Dyer County; COVID-19 Data for: Gibson County; COVID-19
`Data for: Obion County.
`23 Mayo Clinic, COVID-19: Who’s at higher risk of serious symptoms (Aug. 24, 2021)
`available at https://www.mayoclinic.org/diseases-conditions/coronavirus/in-
`depth/coronavirus-who-is-at-risk/art-20483301?p=1 (last visited on Aug. 28, 2021).
`24 Wern Hann, et. al., Comorbidities in SARS-CoV-2 Patients: a Systematic Review and
`Meta-Analysis, (February 2021) available at
`
`
`
`10
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 11 of 71 PageID 556
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`44.
`
` The vast number of deaths associated with COVID-19 occur in those over the age of
`
`55.25 Within the most heavily impacted age group (age 85 and up), only 13.3% of
`
`deaths from February 2020 to February 2021 were attributed to COVID-19.26
`
`45.
`
` One of the most useful measures for calculating the risk of dying from a virus is the
`
`infection-fatality rate (“IFR”). The IFR is calculated by dividing the number of COVID
`
`deaths by the number of COVID infections. It attempts to answer the critical question:
`
`“If I get sick, what is the chance that I will die?” The Center for Disease Control and
`
`Prevention estimates the IFR for the bulk of most working-age adults is exceedingly
`
`low.27 For adults under age 50, the CDC’s “current-best estimate” is that 500 people
`
`will die per 1,000,000 infections nationwide.28 In other words, for every one million
`
`adults infected age 50 or younger, 999,500 of them will survive COVID-19.29
`
`46.
`
` Assuming the data regarding COVID-19 infections is accurate, the CDC’s numbers
`
`show Americans across the board are far more likely to die of something other than
`
`COVID-19.30 Almost all employees at Tyson are in the very low-risk category in terms
`
`
`https://journals.asm.org/doi/10.1128/mbio.03647-20?permanently=true& (last visited on
`Aug. 28, 2021).
`25 Heritage Foundation, COVID-19 Deaths by Age, Heritage Foundation (Feb. 17, 2021)
`available at https://datavisualizations.heritage.org/public-health/covid-19-deaths-by-age/ last
`visited (Sept. 1, 2021); See also, See, COVID-19: Who’s at higher risk of serious symptoms.
`26 Ibid.
`27 CDC, COVID-19 Pandemic Panning Scenarios, Centers for Disease Control and
`Prevention (March 19, 2021) available at https://www.cdc.gov/coronavirus/2019-
`ncov/hcp/planning-scenarios.html last visited (Sept. 1, 2021).
`28 Ibid.
`29 Ibid.
`30 See, Smiriti Mallapaty, The Coronavirus Is Most Deadly If You Are Older and Male,
`NATURE (Aug. 28, 2020) [individuals under 50 face a negligible threat of a severe medical
`outcome from a coronavirus infection, akin to the types of risk that most people take in
`everyday life, such as driving a car].
`
`
`
`11
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 12 of 71 PageID 557
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`of COVID-19 lethal risk, a significant factor in evaluating the interests Tyson had when
`
`imposing its mandate.
`
`D.
`
`Asymptomatic People Pose Little Risk of Transmitting the Virus
`
`47.
`
` Tyson’s vaccination mandate only addresses one risk: asymptomatic lethal spread.
`
`The problem with Tyson’s approach is two-fold. First, asymptomatic lethal spread is a
`
`less than a one-in-a-million risk at worst, rendering forced injections of unwanted
`
`experimental, potentially life-altering drugs developed in ways that offend the
`
`conscience of many, unnecessary.
`
`48.
`
` Second, Tyson uses the specter of “asymptomatic spread” -- the notion that
`
`fundamentally healthy people could transmit COVID-19 to others without having any
`
`symptoms of COVID-19 -- to justify its vaccine mandate. But there is little credible
`
`scientific evidence that demonstrates the phenomenon of “asymptomatic spread” poses
`
`any meaningful danger to Tyson employees or anyone else, for that matter. Indeed, it is
`
`“very rare,” even according to Anthony Fauci. Tyson’s response to COVID-19 is
`
`predicated in part on the flawed assumption that asymptomatic individuals pose a
`
`meaningful risk of spreading the disease.
`
`49.
`
` Evidence of transmission requires that an individual can be shown to be the source
`
`of infection for another person who then developed symptoms of a disease/illness.
`
`Basic microbiology shows that infectiousness or transmission of viruses such as
`
`COVID-19 require an active infection resulting in elevated levels of viral replication in
`
`the host and shedding of the virus.31
`
`
`31 See generally, Samuel Baron, et. al., Medical Microbiology (4th ed. 1996) available at
`https://www.ncbi.nlm.nih.gov/books/NBK8149/ (last visited Sept. 27, 2021); See also,
`Hitoshi Kawasuji, et. al., Transmissibility of COVID-19 depends of the viral load around
`
`
`12
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`

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`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 13 of 71 PageID 558
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`50.
`
` Decades of research demonstrates that symptomatic people (i.e. those coughing,
`
`sneezing, and wheezing) are the real drivers of viral spread, a fact Dr. Anthony Fauci
`
`initially acknowledged during the early days of the pandemic when he told the press:
`
`“[E]ven if there is some asymptomatic transmission, in all the history of respiratory-
`
`borne viruses of any type, asymptomatic transmission has never been the driver of
`
`outbreaks. The driver is always a symptomatic person”32 (emphasis added).
`
`51.
`
` When the viral replication process is blocked by a healthy immune system, the virus
`
`is neutralized, preventing significant viral replication and shedding. This occurs in
`
`approximately half the people exposed to the virus. Their immune system’s defenses
`
`effectively ward off COVID-19 before it can take hold and cause symptomatic disease.
`
`Research demonstrates that asymptomatic people are not the driver of COVID-19
`
`transmission as demonstrated in the following points.
`
`52.
`
` Researchers studying real-world laboratory samples of more than a quarter-million
`
`people found that even with a positive RT-PCR test, asymptomatic people have a much
`
`lower probability of being infectious.33 According to a meta-analysis of contact tracing
`
`studies published in the Journal of the American Medical Association, at most,
`
`asymptomatic COVID-19 spread was only 0.7%.
`
`
`onset in adult and symptomatic patients, PLOS ONE (Dec. 9, 2020) available at
`https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0243597 (last visited Sept.
`27, 2021).
`32 U.S. Department of Health and Human Services, Update on the New Coronavirus
`Outbreak First Identified in Wuhan, China, YouTube (Jan. 28, 2020) available at
`https://www.youtube.com/watch?v=w6koHkBCoNQ&t=2638s (last visited Sept. 27, 2021).
`33 The performance of the SARS-CoV-2 RT-PCR test as a tool for detecting SARS-CoV-2
`infection in the population
`
`
`
`13
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 14 of 71 PageID 559
`
`53.
`
` A research article published in the CDC’s Emerging Infectious Diseases journal
`
`notes that little to no transmission of COVID-19 occurred from asymptomatic people
`
`studied by researchers in Germany.34 The researchers note, “The fact that we did not
`
`detect any laboratory-confirmed SARS-CoV-2 transmission from asymptomatic case-
`
`patients is in line with multiple studies…”35 (emphasis added). The lack of scientific
`
`and medical evidence surrounding asymptotic spread led the researchers to conclude
`
`that asymptomatic spread is “[]unlikely to substantially spread COVID-19.”36
`
`54.
`
` A review in March 2021 of all the published meta-analyses on asymptomatic
`
`transmission from Dr. John Lee, a retired British Professor of Pathology, reveals that in
`
`many cases, the same few studies have been recycled repeatedly to support the flawed
`
`proposition that those who are asymptomatic pose a real danger.37 In the words of
`
`Allyson M. Pollock, a professor of public health at Newcastle University in the United
`
`Kingdom, “Searching for people who are asymptomatic yet infectious is like searching
`
`for needles that appear and reappear transiently in haystacks, particularly when rates are
`
`falling.”38
`
`
`34 Jennifer K. Bender, Analysis of Asymptomatic and Presymptomatic Transmission in
`SARS-CoV-2 Outbreak, Germany, 2020, 27 Emerging Infectious Diseases 4 (April 2021)
`available at https://wwwnc.cdc.gov/eid/article/27/4/20-4576_article (last visited Sept. 27,
`2021).
`35 Ibid.
`36 Ibid.
`37 See, John Lee, Asymptomatic spread: who can really spread COVID-19, Health Advisory
`& Recovery Team (March 2021) available at https://www.hartgroup.org/wp-
`content/uploads/2021/03/ASYMPTOMATIC-SPREAD.pdf, (last visited Aug. 28, 2021).
`38 Allyson M. Pollock, Asymptomatic transmission of covid-19, theBMJ (Dec. 21, 2020)
`available at https://www.bmj.com/content/371/bmj.m4851 (last visited Sept. 27, 2021).
`
`
`14
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 15 of 71 PageID 560
`
`55.
`
` Moreover, according to the FDA, there is insufficient data to determine the vaccines
`
`authorized for emergency-use39 actually prevent asymptomatic infection or the
`
`transmission of SARS-CoV-2.
`
`56.
`
` Recently, the CDC reported that “new scientific data” demonstrated that vaccinated
`
`people who experienced breakthrough infections carried similar viral loads to the
`
`unvaccinated (but not naturally immune), leading the CDC to infer that vaccinated
`
`people transmit the virus at concerning levels.40
`
`57.
`
` Tyson’s vaccine mandate “accommodation” -- limiting asymptomatic unvaccinated
`
`employees from its workplace by effectively terminating them -- flies in the face of the
`
`current scientific literature, which shows asymptomatic spread of COVID-19 is
`
`virtually non-existent.
`
`58.
`
` In sum, there is little objective evidence to support a finding that asymptomatic
`
`spread is a driver of COVID-19 and therefore, poses a danger to Tyson’s workplaces.
`
`Rather, the epidemic spread of COVID-19 is propelled almost exclusively by
`
`symptomatic persons (some of whom are fully vaccinated) who can easily self-isolate
`
`or quarantine from their co-workers.
`
`59.
`
` Tyson’s COVID-19 vaccination mandate is nonsensical, unjust, and a violation of
`
`federal and Tennessee law.
`
`
`
`
`39 The Pfizer and BioNTech BNT162b2 COVID-19 vaccine (hereafter, “the Pfizer
`vaccine”); the ModernaTX mRNA-1273 COVID-19 vaccine (hereafter, “the Moderna
`vaccine”); the Janssen Biotech, Inc. (Johnson & Johnson) Ad26.COV2.S COVID-19
`vaccine (hereafter, “the Johnson & Johnson vaccine”) (collectively, “COVID-19 vaccines”).
`40 See CDC reversal on indoor masking prompts experts to ask, "Where's the data?'',
`WASHINGTON POST (July 28, 2021), available at wapo.st/2THpmIQ (last visited Oct. 2,
`2021).
`
`
`
`15
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 16 of 71 PageID 561
`
`E.
`
`60.
`
`Tyson’s Vaccine Mandate Will Not Stop the Spread of COVID-19
`
` Data and studies published since the vaccines have been released are demonstrating
`
`that the vaccine has been ineffective at preventing the transmission and infection of
`
`SARS-CoV-2.
`
`61.
`
` A study published on September 9, 2021 in the European Journal of Epidemiology
`
`analyzed data from 68 countries and 2947 counties in the United States. They found
`
`“no discernable relationship between percentage of population fully vaccinated and
`
`new COVID-19 cases.”41 Nor was there a significant indication of “COVID-19 cases
`
`decreases with higher percentages of population fully vaccinated. Rather, they found a
`
`“marginally positive association such that countries with higher percentages of
`
`population fully vaccinated have higher COVID-19 cases per 1 million people.”42
`
`62.
`
` Recent Israeli data found that those who had received the BioNTech vaccine were
`
`6.72 times more likely to suffer a subsequent infection than those with natural
`
`immunity. 43 Israeli data also indicates the protection BioNTech grants against infection
`
`is short-lived compared to natural immunity and degrades significantly faster. In fact,
`
`as of July 2021, vaccine recipients from January 2021 exhibited only 16% effectiveness
`
`
`41 S.V. Subramanian, et al., Increases in COVID-19 are unrelated to levels of vaccination
`across 68 countries and 2947 counties in the United States, European Journal of
`Epidemiology (September 9, 2021), available at http://doi.org/10.1007/s10654-021-00808-
`7.
`42 Ibid.
`43 David Rosenberg, Natural Infection vs Vaccination: Which Gives More Protection? Israel
`National News, (Jul. 13, 2021), available at https://www.israelnationalnews.com/
`News/News.aspx/309762 (last visited Aug. 26, 2021).
`
`
`16
`
`

`

`Case 1:21-cv-01155-STA-jay Document 21 Filed 11/18/21 Page 17 of 71 PageID 562
`
`against infection and 16% protection against symptomatic infection, increasing linearly
`
`until reaching a level of 75% for those vaccinated in April.44
`
`63.
`
` Similarly, scientists studying over 4,000 frontline workers found that between
`
`December 2020 until April 2021, the effectiveness of the vaccines cratered from 91
`
`percent to 66 percent. This drastic decline occurred before the SARS-CoV-2 Delta
`
`variant became the predominant variant.45
`
`64.
`
` Even more alarming, research focusing on the Pfizer vaccine’s effectiveness in
`
`America shows that from December 14, 2020 until August 8, 2021, the vaccine
`
`plummeted in effectiveness, Collapsing from 88 percent to 47 percent.46
`
`65.
`
` State-level data strongly indicates the vaccines wane in effectiveness over time too.
`
`As recorded by Tennessee Department of Health47 and reported by Chattanooga Times
`
`Free Press, 13 percent of all COVID-19 c

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