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; NATASHA DICICCO; NICHOLAS ARNO; RUBEN ALMEIDA,

Plaintiffs, Appellants,

ELIZABETH BIGGER,

Plaintiff,

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

Lynch, Howard, and Kayatta, Circuit Judges.

Ryan McLane, Lauren Bradford, and McLane & McLane, LLC on brief for appellants. Dawn Reddy Solowey, Katherine E. Perrelli, Lynn A. Kappelman, Kristin McGurn, and Seyfarth Shaw LLP on brief for appellee. April 27, 2022 LYNCH, Circuit Judge. In November 2021, the district

court denied a preliminary injunction, which had been sought by

appellants, then employees of Mass General Brigham, Inc. (MGB), to

stop their employer's application of its mandatory COVID-19

vaccination policy to them. Together Employees v. Mass General

Brigham, Inc., ("Together Employees I"), No. CV 21-11686-FDS,

(D. Mass. Nov. 10, 2021). The appellants noticed an

appeal and also sought emergency injunctive relief from this court.

We held, in a published decision, that they had not met the

requirements for an injunction pending appeal. Together Employees

v. Mass General Brigham, Inc., ("Together Employees II"),

(1st Cir. 2021). The appellants then sought emergency

relief from the Supreme Court, which denied their application for

writ of injunction pending appeal. Together Employees v. Mass

General Brigham, Inc., No. 21A175 (U.S. Nov. 29, 2021) (Breyer,

J., in chambers).

The merits of their appeal from the district court's

denial of a preliminary injunction are now before us.

We assume familiarity with the background to this case,

as set forth in Together Employees II, see

, so we

recount the facts and procedural history here only very briefly.

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,

- 3 - 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. Some also 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.

Together Employees II,

(footnote omitted).

The district court denied appellants the preliminary

injunction they sought. Appellants timely appealed. Appellants

asked for an injunction pending appeal, which we refused, holding

that they had not demonstrated irreparable harm.1

.

1 The appellants' brief provides us with no information on the present status of ongoing litigation in the district court other than that Elizabeth Bigger is no longer a party. We also note that Together Employees, the association representing the plaintiffs, has voluntarily dismissed its claims.

- 4 - The standard of review for denial of a preliminary

injunction is well-established. "We review the district court's

factual findings for clear error, its legal conclusions de novo,

and its ultimate decision to deny the preliminary injunction for

abuse of discretion." Does 1-6 v. Mills,

(1st

Cir. 2021).

"A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest." Winter v. Nat. Res.

Def. Council, Inc.,

(2008). The first two factors

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

(2009).

Here, the second is dispositive. As we explained in

Together Employees II:

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 [Mills,

] (citing

- 5 - Ruckelshaus v. Monsanto Co.,

(1984)).

. Here, as in Together Employees II, appellants

have not made make that showing. Indeed, despite our holding in

Together Employees II, appellants made virtually no effort to show

irreparable harm.2 Instead, they largely repeated their prior

unsuccessful arguments.

It is black-letter law that "money damages ordinarily

provide an appropriate remedy" for unlawful termination of

employment. Mills,

. "[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." Sampson v.

Murray,

, 92 n.68 (1974). "That rule governs both the

Title VII and ADA claims because they both arise from the

termination of employment." Together Employees II,

.

Indeed, the law has only been reinforced since our prior decision.

See, e.g., O'Hailpin v. Hawaiian Airlines, Inc., No. 22-cv-00007-

JAO-KJM,

, at *5-6 (D. Haw. Feb. 2, 2022), appeal

docketed, No. 22-15215 (9th Cir. Feb. 14, 2022); Anderson v. United

2 Appellants also did not request oral argument, see Fed. R. App. P. 34(a)(1); 1st Cir. R. 34.0(a), or file a reply brief.

- 6 - Airlines, Inc., No. 3:21-cv-1050-TJC-LLL,

, at *7-

8 (M.D. Fla. Dec. 30, 2021), appeal docketed, No. 22-10254 (11th

Cir. Jan. 24, 2022).3

Appellants assert as irreparable harms loss of income,

loss of benefits, emotional distress, and chilled religious

exercise. The first two harms are "external factors common to

most discharged employees." See Sampson,

n.68.

Deprivation of income (both in the form of wages and of benefits)

is a quintessential pocketbook injury, which money damages can

remedy. Appellants attempt to classify their injuries as

irreparable by reframing the harm they suffer as the loss of things

they can no longer afford. But artful pleading cannot not

transform ordinary harm into the basis for an injunction. Further,

"the 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 Cir. 1998).4 "Money damages would adequately resolve

3 We acknowledge that the Fifth Circuit reached the opposite result in an unpublished decision, but it expressly distinguished Together Employees II and the decision is non- precedential. See Sambrano v. United Airlines, Inc., No. 21- 11159,

, at *8-9, 9 n.15 (5th Cir. Feb. 17, 2022). 4 Appellants try to distinguish DeNovellis, arguing that they face more severe emotional harms. But the severity of the harm is not the relevant criteria. See Sampson,

n.68 ("[E]xternal 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.").

- 7 - all of the alleged harms." Together Employees II,

.

"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."

Appellants also assert that their alleged injuries are

of constitutional magnitude because any chilling of their free

exercise rights constitutes irreparable harm. But MGB is not a

state actor and is not bound by the Free Exercise Clause. MGB is,

of course, bound by Title VII. Here, however the "[appellants]

are not required to perform or abstain from any action that

violates their religious beliefs." Kane v. De Blasio,

, 172 (2d Cir. 2021). MGB is not requiring appellants to be

vaccinated involuntarily. Instead, "[b]ecause [appellants] have

refused to get vaccinated, they [have been fired]. The resulting

loss of income undoubtedly harms [them], but that harm is not

irreparable."

We affirm the district court's denial of the appellants'

motion for a preliminary injunction.

- 8 -