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DOJ’s compulsory discrimination?

By M.D. Kittle

Wisconsin Spotlight | Oct. 13, 2022

MADISON — Jerry Mullen served as a dedicated Special Agent with the FBI for more than two decades. The former police officer and Captain in the U.S. Marines has extensive experience in criminal and counterterrorism investigations, law enforcement and pubic safety.

But Attorney General Josh Kaul’s Department of Justice determined Mullen was “unfit for duty” because he refused to take weekly COVID tests or declare his COVID vaccine status.

Mullen, who has worked as a DOJ law enforcement training compliance officer for the last five years, fought what he calls a draconian and illegal requirement by Gov. Tony Evers’ administration and blindly enforced by Kaul’s agency.

He lost.

But his discrimination case could assist others challenging the kind of sweeping government mandates born in the COVID Age. While President Biden declares the pandemic over and the state has lifted its COVID mandates and restrictions, Mullen said unelected bureaucrats drunk with power could abuse their authority all over again.

“There is nothing preventing the state from imposing this draconian measure again,” he told Empower Wisconsin.

A compulsory choice

The basis of Mullen’s complaint is that the Evers administration, specifically then- Department of Administration Secretary Joel Brennan, implemented a policy requiring all executive branch employees to submit their vaccination status into PeopleSoft, a Human Resources portal in violation of federal law on “Emergency Use of Medical Products.”

A DOA memo to all executive branch employees went out on Aug. 23, 2021 requiring they provide their COVID-19 vaccination status and documentation by September 9, 2021. Mullen didn’t comply. Instead he asked DOJ’s Human Resources department to state the consequences for non-compliance. Guidance only stated employees may be subject to discipline. HR didn’t provide specifics. He wasn’t subject to discipline at that time, but he did receive weekly email reminders to declare his vaccination status.

On Oct. 18, 2021, all executive branch employees not vaccinated, or who had not reported their vaccination status, had to submit to the weekly testing requirement. Ten days later, Mullen sent an email to HR laying out his objection to the policy and his refusal to comply. He pointed to the department’s prohibition against discrimination, including discrimination against an individual based on “use or nonuse of lawful products off the employer’s premises during nonworking hours.” Mullen argued that portion of the policy applies to employees refusing to submit to COVID tests “since they are being treated differently and discriminated against compared to all other employees.” He also alleged the policy targeted a specific group of state workers — the executive branch.

It’s disparate treatment, Mullen said.

“You can’t ask someone if they’re HIV positive. How is this any different,” the DOJ agent said.

An ‘unlawful law’

DOJ didn’t think much of Mullen’s argument. They scheduled an investigatory hearing for Nov. 23, 2021 in which Mullen was to answer for possible violations of state work rules and department policies. He was accused of failing to comply with a written agency policy or procedure, and for “disobedience, insubordination, inattentiveness, negligence, and failure or refusal to carry out written or verbal assignments, directions, or instructions.”

Mullen told his interrogators that he was not obligated to comply with an illegal policy. They refused to give him a copy of the report.

In December he was ordered to attend a pre-disciplinary hearing. It was already determined by the DOJ powers that be that he had violated policy. DOJ Chief of Staff Ashley Viste informed Mullen that he was being placed on administrative leave. It was then that he was told he was “unfit for duty.” He was forbidden from conducting any in-person duties at the office or with DOJ clients.

“I was placed in unpaid leave status for those days requiring in-person responsibilities,” Mullen said.

He filed a discrimination complaint with the Department of Workforce Development. Mullen argued the state was threatening discipline for refusing to submit bodily fluids containing DNA to Fulgent Genetics, “a public corporation whose stated mission is to develop genetic testing. Complying with policy would compel employees to waive their privacy rights in their DNA,” Mullen said.

DOJ attorneys moved for the complaint to be dismissed. They said there is no requirement to use Fulgent for COVID testing. But Mullen argues that doesn’t address the concern over submitting DNA, which is a byproduct of testing regardless of the vendor.

“Unelected bureaucrats like Joel Brennan do not have the authority to override federal law. The policy of requiring weekly COVID testing is not rationally related to a legitimate government interest,” Mullen said.

He argued the COVID testing kits were never approved by the FDA, and that the state of Wisconsin never informed employees of their right to refuse and that consent was absolutely essential. Instead, they threatened discipline to coerce compliance with an unlawful policy.

Mullen had sought and received clearance to work remotely during the complaint process, so the initial discipline was never enforced. He said he was willing to sacrifice his pay check for his principles, but his bosses approved his telework request.

In March, after the Evers administration ended its mask mandate and COVID testing requirements, Mullen received a written letter of reprimand in lieu of a one-day suspension. He was then cleared to return to full duty.

DWD dismissed his complaint.

“Considering DWD is part of the Executive Branch, I don’t believe I received a fair review and that DWD has an inherent conflict of interest,” the DOJ employee said.

So, he filed a complaint with the Equal Employment Opportunity Commission, testing whether the actions of his employer were discriminatory. He got nowhere with the federal agency.

A question of civil rights

Several lawsuits have been filed against mandatory COVID shots, testing and vaccine status reporting. A federal appellate judge recently ruled a high-profile class-action lawsuit against the Air Force’s coronavirus vaccine policy can moved forward.

“Judge Raymond Kethledge’s court order pushed back on the military’s argument that stopping the mandate would cause ‘irreparable harm’ by requiring the Department of the Air Force to retain nearly 10,000 troops who can’t — or aren’t allowed to — fully carry out their duties because they aren’t vaccinated against COVID-19,” the AirForce Times reported last month.

In July, however, U.S. District Judge Leonie M. Brinkema dismissed a lawsuit from a group of employees at the FBI and other national security and defense agencies arguing it was “unlawful and unconstitutional” to require unvaccinated staff get tested weekly for the coronavirus, the Washington Post reported.

As the newspaper notes, challenges to the Biden administration’s federal vaccine mandates have surfaced in courts nationwide. “Other federal courts have issued nationwide injunctions, or injunctions covering certain states, and the administration’s vaccine rules largely have been put on hold while the litigation continues.”

Mullen said Kaul’s silence on the civil rights question has been telling.

“Unfortunately, it certainly is a complete lack of any kind of leadership. Not only is he not defending his employee, he is not honoring the oath of office that he took to uphold the constitution,” the DOJ agent said of the attorney general.

Kaul’s office did not return a request for comment.

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