Attorney working for Kentucky sues Gov. Beshear over mask mandate in his offices

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An attorney who works for Kentucky is suing Gov. Andy Beshear after she was repeatedly disciplined for refusing to wear a mask in state office buildings.

Dana Simmons, a staff attorney in Kentucky’s Public Protection Cabinet, filed a lawsuit Friday against Beshear and other state officials. She alleged that Beshear and other defendants illegally imposed a mask mandate “under the guise of ‘policy’” even though Kentucky judicial rulings and lawmakers’ actions limited Beshear’s ability to issue a broader mask requirement.

The mandate required everyone in executive branch buildings and offices — the various cabinets of state government over which Beshear has control —and in state vehicles to wear a mask when in public areas or when others are nearby. The Public Protection Cabinet said the mask mandate was part of its commitment “to maintaining a safe and healthy work environment.”

“To prevent the spread of the coronavirus; all state employees, customers and visitors are required to wear a mask or face covering while in public areas (or in the presence of another person) of Executive Branch facilities,” Sherelle Roberts-Pierre, a spokesperson for the Public Protection Cabinet, said in a statement to the Herald-Leader.

“As with all personnel safety policies, employees are expected to follow these guidelines to protect the health of their co-workers, families and the public at large.”

In addition to Beshear, defendants in the lawsuit include Gerina Weathers, secretary of the Personnel Cabinet, and Ray Perry, secretary of the Public Protection Cabinet. The Personnel Cabinet and Public Protection Cabinet offices are also listed as defendants.

Simmons is representing herself in the case. The complaint was filed in federal court in Frankfort.

Simmons said in her lawsuit that the mask policy for executive branch offices previously indicated vaccinated employees could work without a mask. But that policy was updated in July this year to require everyone to wear a mask regardless of their vaccination status. (Simmons’ vaccination status wasn’t noted in the lawsuit.)

Simmons said in the lawsuit she “worked peacefully and productively in the building without a face covering and was not bothered about it until September 21, 2021.”

On that date, she was approached by a supervisor who told her she had to wear a mask in common areas of the building, according to the lawsuit.

Simmons “informed her supervisor that if her choice not to wear a face-covering is problematic, she would happily seek employment elsewhere,” according to the lawsuit. Simmons’ supervisor reiterated the policy but said he didn’t want Simmons to leave the protection cabinet.

Simmons was reminded of the policy in an additional meeting with human resources and the general counsel for the protection cabinet. She was told she wasn’t allowed to work in the office if she didn’t wear a face covering. In late September, Simmons was splitting her time between working in the office and working from home.

Simmons was told she wasn’t allowed to use leave time on the days she was expected to come into the office, according to the lawsuit. Simmons showed up to work without a mask multiple times after that and was told to go home, according to the lawsuit. She was reprimanded for refusing to comply.

Simmons kept working from home on the days she was scheduled to do so, according to the lawsuit. She was told on Oct. 5 that she was being suspended without pay for three days because she didn’t comply with the mandate.

Simmons alleged her 14th Amendment rights were violated. In her lawsuit, she referenced the amendment, which reads:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Simmons also alleged in her lawsuit that the state violated substantive and procedural due process.

Simmons alleged Beshear and the other defendants in her lawsuit were “put on notice by the Supreme Court of Kentucky, by the U.S. District Court in Kentucky, and by the General Assembly that the Executive Branch did not have authority to issue a unilateral mask mandate in the Commonwealth.”

Simmons also wrote that a Boone County Circuit Court ruling against Beshear in June kept the governor from issuing new restrictions related to COVID-19 safety.

The Kentucky General Assembly’s September special session was referenced in Simmons’ lawsuit.

State lawmakers passed a resolution declaring that “all SARS-COV-2-related executive orders issued by the governor and all executive actions and administrative orders, administrative regulations, or other administrative actions not specifically extended by this Resolution are of no further force or effect as of the effective date of this resolution.”

Simmons said in her lawsuit the effects of the mask mandate have tainted her personnel record “despite reports that she ‘is a good attorney’ and ‘does good work.’”

Simmons has asked a federal court to issue a temporary restraining order to keep the mask mandate from being enforced. She’s also asked for a permanent injunction against the mandate once the case is settled and for compensation related to money she’s lost as a result of not complying with the mandate.

The defendants hadn’t yet filed a legal reply as of Wednesday afternoon. The case was set for a preliminary conference in Covington on Friday, according to court records.

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