A federal judge last week found the Colorado Symphony Association had not discriminated against a violinist on the basis of her religion by placing her on leave when she did not receive a COVID-19 vaccination.

Larisa Fesmire has been a violinist with the Colorado Symphony Orchestra since 1998. She described herself as a “Bible based Christian” who had not, “even as a child, received any vaccinations due to her spiritual beliefs.”

After the COVID-19 pandemic interrupted symphony operations, the association anticipated a federal vaccination requirement would take effect in late 2021. It issued a policy in July requiring musicians to be vaccinated, to which Fesmire objected on religious grounds.

The association placed her on paid leave with benefits in September 2021. In December, it moved her to unpaid leave with benefits. In March 2022, all musicians were able to return to work regardless of whether they were vaccinated. Fesmire, who was recovering from wrist surgery, did not return until September.

Fesmire then sued, alleging the unpaid leave amounted to religious-based discrimination for her decision not to receive the COVID-19 vaccine.

In response, the association argued Fesmire failed to allege she was placed on leave because of her Christian faith, or that the association treated other, non-Christian musicians more favorably.

It also argued that accommodating Fesmire in another fashion — such as allowing her to wear a mask and test for COVID-19, or placing her in a separate spot onstage — would have imposed an “excessive and unjustifiable burden.”

“By December 2021, the CSA had paid Plaintiff for nearly 3 months of leave, totaling $18,210.40; leave which the (collective bargaining agreement) did not establish for any musician and which no vaccinated musician received,” wrote the association’s lawyers. “Moreover, the CSA’s efforts to prevent the spread of COVID-19 in the workplace through testing and masking prior to the vaccine mandate were not successful. As stated by Plaintiff, prior to vaccines, nearly ‘everybody (in the CSA) got COVID-19.'”

Fesmire’s attorneys did not respond in detail to the association’s narrative, and belatedly filed three pages stating, in essence, that a jury should hear the case.

“A jury would need to evaluate the request to wear a mask and test in light of Plaintiff’s role in the symphony versus the Defendant’s contention it was an excessive and unjustifiable burden,” wrote attorney Ginger V. Geissinger.

In an April 30 order, U.S. District Court Senior Judge Raymond P. Moore sided with the association. He noted Fesmire’s lawyers had not offered evidence to contradict the association’s assertions, and he could not conclude there was religious discrimination.

“Defendant determined it could not isolate unvaccinated musicians without negatively affecting its performances, and its previous attempt to resume in-person work with masking and testing resulted in multiple musicians becoming infected with COVID-19. In addition, Defendant has shown that it incurred and would continue to incur significant costs by placing Plaintiff on paid leave indefinitely,” he wrote. 

Consequently, there was “no genuine dispute that Defendant was unable to accommodate Plaintiff’s request for a religious exemption without undue hardship.”

The case is Fesmire v. Colorado Symphony Association.