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,

, at *5 (D. Mass. Nov. 10, 2021); see Parent/Pro. Advoc. League v. City of Springfield,

, 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

exemption.

(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,

(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,

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.,

(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,

(1st Cir. 2010). The first two factors

are the most important. Cf. Nken v. Holder,

(2009). If the appellants cannot demonstrate irreparable harm, we

need not discuss the other factors. See Matos ex rel. Matos v.

Clinton Sch. Dist.,

(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,

(1st Cir. 2021) (citing

- 14 - Ruckelshaus v. Monsanto Co.,

(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."

To obtain an injunction, therefore, the appellants

must show a "genuinely extraordinary situation." Sampson v.

Murray,

, 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."

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,

(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 -