Three former employees have dropped their lawsuit against the North Carolina Symphony. They had accused the Symphony of firing them in 2022 because of their refusal to get vaccinated against COVID-19.
“The lawsuit we filed against The North Carolina Symphony Society, Inc. and its President and CEO has been settled, resolved, and concluded,” according to a statement lawyer James Lawrence emailed to Carolina Journal Monday on behalf of his three clients. “We valued our time as musicians with the North Carolina Symphony and wish it continued success going forward.”
The statement followed a stipulation of dismissal filed Monday in US District Court. It indicated “all claims asserted by Plaintiffs in this action against the NCS Defendants are dismissed with prejudice.” The words “with prejudice” mean that the suit cannot be refiled at a later date.
There is no indication in the court paperwork of whether the Symphony and plaintiffs reached a settlement of the complaints.
US District Judge James Dever issued a ruling in September 2024 allowing the plaintiffs to proceed with their lawsuit against the Symphony and the state Department of Natural and Cultural Resources.
Dever’s order permitted portions of the lawsuit from Christopher Caudill, Rachel Niketopoulos, and David “Dovid” Friedlander to move forward, while dismissing others. He ordered the musicians and Symphony to engage in court-hosted mediation.
The three plaintiffs argued that Symphony President and CEO Sandi Macdonald refused to grant them religious exemptions when the Symphony required all musicians to get the COVID vaccine in 2021. All three lost their jobs in June 2022.
“Plaintiffs plausibly allege that Caudill and Niketopoulos are Buddhist, and Friedlander is Jewish,” Dever wrote last year. “Plaintiffs plausibly allege that Macdonald did not grant their religious accommodations request ‘’because of their religion,’ and because the ‘Symphony and [Macdonald] were hostile to religion generally and to [p]laintiffs’ religion specifically.’ As for an adverse employment action, plaintiffs plausibly allege that the Symphony and NCDNCR failed to accommodate plaintiffs’ religious requests and terminated their employment.”
“Plaintiffs had no performance issues during their employment,” Dever added. “As for being treated worse, plaintiffs plausibly allege that everyone who received the vaccine was not fired. Accordingly, plaintiffs plausibly allege a religious discrimination claim against NCDNCR and the Symphony, and this claim may proceed.”
Dever also allowed the three musicians to proceed with a Title VII claim based on a failure to accommodate their religion. “Plaintiffs plausibly allege that Caudill and Niketopoulos’s Buddhist’s beliefs and Friedlander’s Jewish beliefs conflicted with the Symphony’s COVID-19 vaccine requirement,” he wrote. “Plaintiffs plausibly allege that they informed the Symphony and NCDNCR of this belief. Plaintiffs plausibly allege that in response the Symphony and NCDNCR placed plaintiffs on unpaid leave for one year and then terminated their employment.”
Dever allowed the plaintiffs to pursue their claim that the Symphony and state agency violated the rights to the free exercise of religion.
“Here, the vaccine policy itself appears to be neutral and has exemptions,” Dever wrote. “Plaintiffs, however, plausibly allege that Macdonald wanted to promote a vaccination ‘culture.”‘ Plaintiffs also plausibly allege that the COVID-19 vaccine mandate lacks general applicability. Moreover, plaintiffs plausibly allege that the vaccine mandate only applied to employees but allowed unvaccinated patrons to attend performances if they adhered to specific protective procedures, which would similarly undermine the alleged vaccination culture.”
“Additionally, the policy provided an avenue for non-religious vaccine exemptions, which the court infers shows a lack of general applicability,” Dever added.
Dever dismissed the plaintiffs’ retaliation and wrongful discharge claims.
Caudill, Niketopoulos, and Friedlander filed their federal lawsuit in August 2023 against the Symphony, DNCR, and Macdonald.
In August 2021, the symphony instituted a COVID-19 vaccine mandate in order to return to work, but, according to Friedlander, as he stated on X (formerly Twitter) and Newsmax, the contract said an exemption based on medical and religious beliefs would be accepted as long as the required paperwork was submitted.
The lawsuits also noted that the three plaintiffs agreed to regular testing, wearing masks, and social distancing as part of the protocol during the pandemic.
The trio sent in their paperwork but received a response from the symphony in September 2021 that not only denied their return to work but put them on unpaid leave with health benefits for a year. In June 2022, the symphony terminated their employment without further discussion.
The paperwork points out that during the 2021-22 season in which the three could not perform, the symphony allowed unvaccinated spectators to attend performances as long as they provided a negative COVID-19 test. Masking mandates were also relaxed during this time.
The suit also stated that DNCR professed its commitment to equity and inclusion.
“One of the Department’s stated values is ‘an open-minded approach to understanding people, regardless of their . . . religion . . . or other characteristics,’” the lawsuit says. “In addition, the Symphony professes to treat all employees the same ‘without regard to . . . religion.’ Despite these commitments, Defendants chose to denigrate Plaintiffs’ religion and engage in religious discrimination against them by failing to accommodate their sincerely held religious beliefs.”
The suit claimed that “Macdonald later admitted she wanted to promote a ‘culture’ of vaccination at the Symphony. Granting accommodations based on religious beliefs—no matter how reasonable those accommodations were—was simply antithetical to the ‘culture’ Ms. Macdonald wanted to promote.”
The lawsuit claimed that the symphony lifted its COVID-19 vaccine mandate in early August 2023 but didn’t contacted the plaintiffs about reinstating their jobs. Friedlander’s position already had been filled.
Details from a July 2023 email from Macdonald in the lawsuit said that although “[t]he health and safety of our musicians is our #1 priority,” she acknowledged that “mandates for [COVID-19 shots and boosters] do not exist” under federal and state law. Macdonald said that canceling the mandate was a move to bring the symphony in line with “industry standards.”
The suit argued that the symphony’s “newfound flexibility was not the result of evolving science but the pursuit of $4 million in taxpayer money from the North Carolina General Assembly.”
“The legislature is in the home stretch of their budget negotiations where they are considering +$4M in financial recovery funding from the pandemic for the Symphony, and they are moving quickly behind the scenes,” Macdonald’s email continued. “If we are going to remove our mandate in the fall, it behooves us to do it now … to limit jeopardizing our relationships with the legislature.”
“Since the pandemic began, our priority has been to protect the health and safety of our musicians and staff, consistent with federal and state health guidelines and informed by the policies of other symphonies,” Linda Charlton, the symphony’s vice president for marketing and audience engagement said in an emailed statement to Carolina Journal after the suit was filed. “That approach led us to implement a vaccination requirement and more recently to revisit and lift that requirement. Our policies and actions have been consistent with applicable law and we look forward to responding at the appropriate time in court.”
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