United States Court of Appeals For the First Circuit
No. 21-1909
TOGETHER EMPLOYEES, by individual representatives; ROBERTA LANCIONE; JOYCE MILLER; MARIA DIFRONZO; MICHAEL SACCOCCIO; ELIZABETH BIGGER; NATASHA DICICCO; NICHOLAS ARNO; RUBEN ALMEIDA,
Plaintiffs, Appellants,
v.
MASS GENERAL BRIGHAM INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
Ryan McLane, Lauren Bradford, and McLane & McLane, LLC on brief for appellants. Katherine E. Perrelli, Lynn A. Kappelman, Kristin McGurn, Dawn Reddy Solowey, and Seyfarth Shaw LLP on brief for appellee.
November 18, 2021 LYNCH, Circuit Judge. Our ruling concerns a motion for
injunction pending appeal of the denial of a request for
preliminary injunctive relief. Appellants, employees of Mass
General Brigham, Inc. (MGB), challenge their employer's
application of its mandatory vaccination policy to them
individually. They do not challenge the policy itself, only MGB's
denial of their individual requests for exemptions. They
acknowledge that MGB has granted religious or medical exemptions
to at least 234 employees. Their complaint is that they are not
among that group.
MGB operates fourteen hospitals and many other medical
facilities across Massachusetts, including Massachusetts General
Hospital and Brigham and Women's Hospital. It employs
approximately 6,500 physicians, 9,100 nurses, as well as another
78,000 individuals and treats approximately 1.5 million patients
each year. In June 2021, MGB decided to require all of its
employees to be vaccinated against COVID-19 unless they qualify
for a medical or religious exemption. MGB required employees to
receive their first doses or exemptions by October 15, 2021.
The appellants, eight MGB employees, each sought
individual religious exemptions, which MGB denied.1 Some also
1 The appellants also include an unincorporated membership association, Together Employees, made up of other MGB employees. The district court held that Together Employees likely lacked
- 2 - sought individual medical exemptions, which MGB denied as well.
When the employees still refused to get vaccinated, MGB placed
them on unpaid leave. The appellants sued MGB under Title VII of
the Civil Rights Act of 1964 and the Americans with Disabilities
Act (ADA), arguing that MGB acted unlawfully when it denied their
individual exemption requests. The district court orally denied
a motion for a preliminary injunction, which would have required
the reinstatement of the appellants from unpaid leave status.
After the vaccination deadline MGB imposed had passed, one
appellant resigned, another got vaccinated, and the remaining six
had their employment terminated. The appellants now seek an
injunction pending appeal. Finding that the appellants have not
met their burden to show they are entitled to an injunction pending
appeal, we deny the motion.
I. Background
A. MGB's Vaccination Policy and Exemption Process
MGB required all of its employees to be vaccinated to
guard against the "unique threat of severe illness and death
associated with COVID-19 especially in hospitalized patients" and
the risks of COVID-19's virulent delta variant; to maintain
associational standing. Together Emps. v. Mass Gen. Brigham Inc., No. 21-cv-11686-FDS, 2021 WL 5234394, at *5 (D. Mass. Nov. 10, 2021); see Parent/Pro. Advoc. League v. City of Springfield, 934 F.3d 13, 33–34 (1st Cir. 2019). The appellants do not challenge that holding here. We therefore do not consider the association's claims in evaluating this motion.
- 3 - adequate levels of healthy staff; to inspire public trust; and to
prepare for an anticipated rise in COVID-19 cases.
MGB permitted employees to seek exemptions based on
medical conditions and religious beliefs. The processes for
seeking each type of exemption was similar, but not identical, as
we describe below.
MGB allowed employees to seek medical exemptions based
on conditions that the Centers for Disease Control and Prevention
(CDC) established as potential medical contraindications to
receiving a COVID-19 vaccine. A history of severe or immediate
allergic reaction to a component of a COVID-19 vaccine is a
contraindication, and a recent administration of COVID-19
monoclonal antibodies or a history of multisystem inflammatory
syndrome are indications for temporary deferral of vaccination.
MGB also allowed employees to seek medical exemptions based on
other conditions. Employees applied for a medical exemption by
having a medical provider sign an MGB-provided form. Two panels
of clinicians -- one focused on occupational health and the other
focused on infection control -- reviewed those forms case by case.
MGB also allowed employees to seek religious exemptions
by identifying a sincerely held religious belief and explaining
why that belief precluded vaccination. MGB allowed employees to
use an online form to submit a written narrative of unlimited
- 4 - length to explain their requests.2 The form asked employees to
"(1) identify [their] sincerely held religious belief, practice[,]
or observance and (2) explain why it prevents [them] from receiving
a COVID-19 vaccine." It also explained that employees "may be
required to provide additional information or supporting
documentation to support [their] request[s] for an exemption." A
committee consisting of an attorney and several trained human-
resources professionals reviewed the requests.
B. Application of the Policies to Appellants
i. Denials of Religious Exemption Requests
We describe the eight appellants who sought and were
denied religious exemptions.
(1) Ruben Almeida said that he could not be vaccinated
because he "need[s] to glorify God at all times, by keeping [his]
body as pure of any foreign substances as humanly possible" and
that he "never partake[s] of any substances that could potentially
harm [his] body[] [or] alter [his] mind." MGB requested more
information about whether Almeida has consistently refused to use
"man-made medications" and about his history of accepting prior
vaccinations. In response, Almeida explained that he has been
granted religious exemptions for flu shots, that he has used
2 The appellants complain that the online form displayed a limited number of words at one time to the user completing it. But MGB's exhibits confirm that MGB received the entirety of the appellants' explanations of their religious claims.
- 5 - medications in the past "to alleviate an acute health situation,"
and that his religion prevents him from using a "substance [that]
is detrimental to [his] health or could potentially cause harm
without its benefit outweighing the risk." MGB then denied the
exemption.
(2) Nicholas Arno said that he could not be vaccinated
because he "strongly oppose[s] vaccines of any kind that interfere
with our bodies['] own immune systems that God created." MGB
requested more information about how Arno's beliefs prevent him
from being vaccinated and about how he reconciles his beliefs with
public statements made by leaders of his religion in support of
vaccination. Arno timely replied, repeating that "God created DNA
in the body to instruct our genetic code, [and that] it was not
intended to receive instruction from anything outside of that.
Anything other than that would violate God’s will for humanity."
MGB then denied the exemption, stating that Arno had failed to
provide the information it had requested by the appropriate
deadline.
(3) Elizabeth Bigger said that "[a]ll currently
available COVID 19 vaccines were developed and tested with the use
of aborted fetal cells," and that she "will not allow any vaccine
or medical therapy developed with aborted fetal cells to be
injected into [her] body. Benefitting in any way from an abortion,
no matter when it occurred, or how the fetal cells were used, would
- 6 - violate [her] beliefs as a Christian." Bigger also included
supporting links. MGB told Bigger that none of the vaccines
contained fetal cells and requested more information about
Bigger's objections and history of vaccination. Bigger responded
that "it does matter to [her] that these vaccines used fetal cells
[only] in their testing and development. [She] refuse[s] to
benefit from any abortion which has occurred, even if the abortion
occurred decades ago." She also explained that while she has
accepted vaccines that "were not manufactured with aborted fetal
cells," she would refuse other vaccines so manufactured and she
has refused to allow her daughter to receive such vaccines. MGB
then denied the exemption.
(4) Natasha DiCicco said that "it is [her] sincerely
held religious and spiritual belief to treat [her] body as a temple
and refrain from putting anything into [her] body that [she], in
good conscience, [has] moral objections or health concerns with."
MGB emailed DiCicco denying the exemption because she "did not
identify [her] sincerely held religious beliefs nor did [she]
explain how those beliefs prevent [her] from receiving a vaccine."
It also, however, offered her the opportunity to explain why her
religion prevents her from being vaccinated and to provide
supporting documents. DiCicco repeated and elaborated on her prior
statement and provided a letter from her pastor, Reverend Ronald
A. Barker of Saint Joseph Catholic Parish. Barker explained that,
- 7 - while the Catholic Church "generally encourages" vaccination, it
also teaches that an individual must make a personal decision about
whether to be vaccinated in light of her own conscience. MGB again
denied the exemption.
(5) Maria DiFronzo said that "it is immoral to be forced
to receive a vaccine with even the most remote connection to
abortion" and that "it is against [her] conscious [sic] to derive
benefit from an aborted baby." MGB told DiFronzo that none of the
vaccines contained aborted fetal cells and requested more
information about DiFronzo's objections and history of
vaccination. DiFronzo explained that "[her] sincere religious
beliefs prevent [her] from putting anything into [her] body that
[she has] moral obligation [sic] or health concerns about." She
also said that "all three [COVID-19] vaccines did benefit in some
way (either during research, production, or testing) from the fetal
tissue of an aborted fetus." MGB then denied the exemption.
(6) Roberta Lancione said that because she "believe[s]
life begins at conception and abortion takes the life of an
innocent human being," she is "opposed to taking the Johnson and
Johnson vaccine as it was developed, tested, and produced with
aborted fetal cell lines." She also said that she opposes the
Pfizer and Moderna vaccines, which use mRNA technology, because
she "believe[s] that through God's creation [she] was made complete
and that God demands that we do not change anything as synthetic
- 8 - biology poses to do." Lancione explained that she had previously
"never thought to question how drugs were developed by scientists
and pharmaceutical companies," but that "COVID vaccine mandates
[had] opened [her] eyes." MGB told Lancione that none of the
vaccines contained fetal cells and requested more information
about Lancione's objections and history of vaccination. Lancione
then said that she objected to all three COVID-19 vaccines because
the research, development, or production of all three involved
cell lines from aborted fetuses. She also said that she had been
granted medical exemptions from mandatory flu shots, so she had
never before sought a religious exemption. MGB then denied the
(7) Joyce Miller said that she would "decline all
attempts to access, influence and or otherwise alter any and all
of [her] God-given biological material and/or biological systems
which are unique, flawless and original design and craftsmanship
of [her] Creator and of which [her] Creator has granted [her] sole
possession, proprietorship and use of." MGB asked Miller why her
religious beliefs prevent her from receiving a COVID-19 vaccine
but not a flu vaccine. Miller explained that she had refused flu
shots until MGB made them mandatory, that she was unaware she could
seek a religious exemption from flu shots until recently, and that
she received them only under duress. She also elaborated on how
- 9 - her Catholicism and conscience informed her decision to refuse
vaccination. MGB then denied the exemption.
(8) Michael Saccoccio said that his "consscience [sic]
is opposed to the vaccine on the ethical-moral grounds that it has
been produced by the illegitimate and immoral action of using
aborted human fetuses." MGB told Saccoccio that none of the
vaccines contained fetal cells and requested more information
about Saccoccio's objections and reasons for not refusing a flu
shot. Saccoccio explained that "[p]artaking in a vaccine confirmed
using aborted fetuses makes [him] complicit in an action that
offends [his] religious faith," and that his "conscience has
allowed [him] to take the traditional vaccines (those using an
attenuated virus, not untested genetic therapy) in the past as
these vaccines have not undergone the same morally grotesque
confirmation process." MGB then denied the exemption.
ii. Denials of Medical Exemption Requests
Four appellants who sought religious exemptions also
sought medical exemptions. None asserted that he or she had a
CDC-recognized contraindication.
- 10 - (1) DiFronzo said she was pregnant. MGB denied her
requested exemption because MGB's medical staff and the CDC
recommended that pregnant people get vaccinated against COVID-19.3
(2) Lancione said that she had previously experienced
allergic swelling (angioedema) after receiving a flu shot and that
she was being treated for chronic lymphocytic leukemia. MGB denied
her requested exemption because she did not "demonstrate a
sufficient medical reason or contraindication to support an
exemption." It offered to refer her to allergists at Massachusetts
General Hospital or Brigham and Women's Hospital to discuss her
concerns.
(3) Miller said that being vaccinated would cause her
"severe mental anguish" and anxiety. MGB denied her requested
exemption because she did not "demonstrate a sufficient medical
reason or contraindication to support an exemption."
(4) Saccoccio said that he had anxiety and post-
traumatic stress disorder. MGB denied his requested exemption
because he did not "demonstrate a sufficient medical reason or
contraindication to support an exemption." Saccoccio got a chance
to present additional medical information to MGB following that
decision, but the committee maintained its denial.
3 MGB had previously said that it would offer temporary exemptions during an employee's pregnancy. After the CDC changed its guidance on vaccinations during pregnancy, MGB changed its policy.
- 11 - After MGB denied the appellants' exemption requests, it
put the appellants on unpaid leave. At least one appellant has
since resigned and at least one chose to get vaccinated. MGB later
terminated the employment of all of the non-vaccinated appellants.
C. Procedural History
Dissatisfied with their individual exemption decisions,
the appellants filed suit against MGB in the District of
Massachusetts. The appellants asserted causes of action for
failure to make reasonable accommodations and failure to engage in
an interactive process under the ADA, for religious discrimination
and failure to engage in an interactive process under Title VII,
and for unlawful retaliation under both statutes. They did not
challenge the vaccine policy itself.
The district court orally denied the appellants' motion
for a preliminary injunction following two motion hearings and
extensive briefing. Days later, it memorialized that decision in
a well-reasoned forty-one page opinion. Together Emps. v. Mass
Gen. Brigham Inc., No. 21-cv-11686-FDS, 2021 WL 5234394 (D. Mass.
Nov. 10, 2021).
The district court held that the plaintiffs were
unlikely to succeed on the merits of any of their claims. As to
the ADA claims, the district court held that the appellants could
likely not show that they were disabled under the ADA, id. at *6-
7, that they were qualified to do their jobs because they pose a
- 12 - direct threat to patients, id. at *7-9, that their requested
accommodations were reasonable, id. at *9-11, that they could
defeat MGB's assertion of undue hardship, id. at *11-14, and that
the exemption process was legally inadequate, id. at *14-15. As
to the Title VII claims, the district court assumed that the
plaintiffs had demonstrated sincere religious beliefs that
prevented them from taking the COVID-19 vaccine, and held that the
appellants could likely not show that they could defeat MGB's
assertion of undue hardship, nor that the exemption process was
legally inadequate. Id. at 15-18. As to both categories of
claims, the district court held that the appellants had not
provided sufficient evidence that they had exhausted their
administrative remedies or made "a showing of irreparable injury
sufficient in kind and degree to justify the disruption of the
prescribed administrative process." Id. at *19 (quoting Bailey v.
Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir. 1983)).
Finally, as to the retaliation claims, the district court held
that the appellants could likely not establish a causal connection
between their protected activity and any adverse employment
action. Id. at *20.
The district court also held that the appellants were
unlikely to demonstrate irreparable harm, that the balance of the
equities favored them, or that the public interest supported an
injunction. Id. at *20-21.
- 13 - As said, the matter before us concerns a motion for
injunction pending interlocutory appeal of that denial of a
preliminary injunction. See Fed. R. App. P. 8(a).
II. Analysis
To be entitled to an injunction pending appeal, the
appellants must make a strong showing that they are likely to
succeed on the merits, that they will be irreparably injured absent
emergency relief, that the balance of the equities favors them,
and that an injunction is in the public interest. Respect Me. PAC
v. McKee, 622 F.3d 13, 15 (1st Cir. 2010). The first two factors
are the most important. Cf. Nken v. Holder, 556 U.S. 418, 434
(2009). If the appellants cannot demonstrate irreparable harm, we
need not discuss the other factors. See Matos ex rel. Matos v.
Clinton Sch. Dist., 367 F.3d 68, 73 (1st Cir. 2004).
A preliminary injunction preserves the court's ability
to grant final relief. See 11A C. Wright, A. Miller, & M. Kane,
Federal Practice & Procedure § 2948.1 (3d ed. Apr. 2021 update).
We require a showing of irreparable harm before granting a
preliminary injunction since that harm would "impair the court's
ability to grant an effective remedy" following a decision on the
merits. See id. Because adequate legal remedies foreclose
injunctive relief, the appellants cannot demonstrate irreparable
harm without showing that they have inadequate remedies at law.
See Doe v. Mills, 16 F.4th 20, 36 (1st Cir. 2021) (citing
- 14 - Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019 (1984)). Here,
they cannot make that showing, which ends our inquiry.
"When litigants seek to enjoin termination of
employment, money damages ordinarily provide an appropriate
remedy." Id. To obtain an injunction, therefore, the appellants
must show a "genuinely extraordinary situation." Sampson v.
Murray, 415 U.S. 61, 92 n.68 (1974). "[I]nsufficiency of savings
or difficulties in immediately obtaining other employment --
external factors common to most discharged employees and not
attributable to any unusual actions relating to the discharge
itself -- will not support a finding of irreparable injury, however
severely they may affect a particular individual." Id. That rule
governs both the Title VII and ADA claims because they both arise
from the termination of employment.
All the harms the appellants point to fall within the
category of "external factors common to most discharged
employees." They say that unpaid leave or discharge will deprive
them of their salaries and health insurance. Nothing about those
consequences is unusual. The appellants also allege that they
will face psychological injuries if they are terminated. Our
precedents also foreclose that argument. "[T]he fact that an
employee may be psychologically troubled by an adverse job action
does not usually constitute irreparable injury warranting
injunctive relief." DeNovellis v. Shalala, 135 F.3d 58, 64 (1st
- 15 - Cir. 1998). Money damages would adequately resolve all of the
alleged harms.4 Moreover, as the deadline for being vaccinated
has passed, the appellants cannot point to an "impossible choice"
as a special factor here; they have already made their choices.5
To the extent the appellants argue that MGB's actions
impair their religious liberty rights under the Constitution, that
argument fails. As appellants concede, MGB is not a state actor
governed by the First Amendment. If MBG's actions turn out to be
unlawful, they are remediable through money damages.
III. Conclusion
The appellants' motion for injunction pending appeal
is denied.
4 That the appellants did not seek money damages in their complaint is of no moment. They may not create irreparable harm through artful pleading. 5 We note as well that both the weakness of the appellants' irreparable harm arguments and the district court's factual findings underlying its conclusion that the appellants have not shown irreparable harm undermine the appellants' likelihood of success on the merits. To be entitled to an injunction, the appellants must show that their legal remedies are inadequate. The district court's factual findings, which again will be reviewed for clear error, impede the appellants' ability to make that showing.
- 16 -