Doña Ana County employee claims he was fired after refusing to be vaccinated for COVID-19

• Former detention center officer filed suit in February over directive.
• In amended complaint, employee claims retaliation by the county.
• A new plaintiff steps forward in new filing, saying he was terminated for refusing vaccine.
• County denies firing anyone over vaccine mandate, says accommodations were granted.

LAS CRUCES - A second plaintiff has come forward in a federal lawsuit challenging Doña Ana County's requirement that employees in three departments receive COVID-19 vaccinations.

In January, county manager Fernando Macias ordered county-employed first responders, sheriff's deputies, firefighters and detention center officers to be inoculated as a condition of employment.

In an amended complaint filed last Friday, Anthony Zoccoli claims he was terminated from his job at the county detention center for refusing the vaccine.

County Attorney Nelson Goodin denied any employee had been terminated over the vaccine mandate. 

"We have one employee that was terminated because he was a probationary employee," Goodin told the Las Cruces Sun-News. "He claims it was because he didn't take the vaccine, but it was for different reasons." Goodin did not delve further into the personnel matter. 

More: Group presses New Mexico to change student mask policy

Goodin confirmed that the first named plaintiff in the lawsuit, former detention center officer Isaac Legaretta, had resigned since his last court filing.  According to the amended complaint, after receiving a "coaching and counseling" write-up, Legaretta was reassigned to the juvenile section of the center and dropped from the center's emergency response team. 

Legaretta claims that those actions amount to a constructive termination in retaliation for filing his lawsuit, since "working in the juvenile section is generally considered a less desirable position," and his departure from the emergency response team "resulted in a loss of income." 

Other plaintiffs in the lawsuit remain unnamed.

"Of the three departments that were mandated, everyone is in compliance with the directive," Goodin said. "That means they either took the vaccine or they obtained an accommodation."

He said a "handful" of accommodations were granted "either for religious reasons or health reasons." 

Vaccine mandate and federal law

At issue in the lawsuit is that all three vaccines in use in the United States are still in the clinical trial process, and are being distributed under an Emergency Use Authorization from the federal Food and Drug Administration. 

The Food, Drug and Cosmetic Act requires disclosures to individuals about medical products, such as vaccines, that are not yet fully approved, including "the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks." 

The federal Centers for Disease Control and Prevention affirmed during a public meeting of its Advisory Committee on Immunization Practices last August that "under an Emergency Use Authorization — an EUA — vaccines are not allowed to be mandatory."

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All the same, Macias wrote in his January directive that "being vaccinated is a requirement and a condition of on-going employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19." 

New Mexico law does not provide for making vaccinations in a public health emergency mandatory, and the state Department of Health has repeatedly stated it has no intention of making COVID-19 inoculations compulsory. Even if it did, the lawsuit argues that federal law pre-empts the county's policy. 

Federal judge Martha Vázquez denied Legaretta's request for a temporary restraining order protecting him from termination in March, saying he had not presented evidence of disciplinary action at work.

Among its requests, the lawsuit seeks a declaration that the plaintiffs' constitutional rights were violated when the county mandated the vaccine, damages under the state's Whistleblower Act and reinstatement of Zoccoli.

Group targets student mask mandates

As of Monday, the state health department reported that 74,547 county residents age 16 and over, or 43.4 percent of that population, were fully vaccinated, meaning two weeks had elapsed since their ultimate dose of one of the vaccines. (Two of them require two doses, while the third requires only a single shot.)

Goodin said that plans for returning employees to the county offices are underway, as a large majority of county employees are believed to have been vaccinated, adding that outside the three departments subject to the vaccine directive, employees are not required to disclose whether they have been vaccinated.

The employees' attorney, Nancy Ana Garner, also represents the group New Mexico Stands Up, which opposes COVID-19 public health emergency directives and has claimed that dangers of the disease have been exaggerated and questioning the safety of vaccines developed to combat the spread of the SARS-CoV-2 coronavirus. 

Last week, Garner authored a cease-and-desist letter from the group asking the health department, state Public Education Department and the New Mexico Activities Association to loosen mask-wearing requirements at schools, particularly during athletics. 

More: Group presses New Mexico to reconsider student mask-wearing policy, especially athletes

Algernon D'Ammassa can be reached at 575-541-5451, adammassa@lcsun-news.com or @AlgernonWrites on Twitter.

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