United States Court of Appeals For the First Circuit

No. 24-1527

ALEXANDRA E. MELINO,

Plaintiff, Appellant,

v.

BOSTON MEDICAL CENTER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Howard, Circuit Judges.

Peter Vickery for appellant.

Jamie L. Kessler, with whom Matthew D. Freeman, Jeanette M. Piaget, and Jackson Lewis P.C. were on brief, for appellee.

January 29, 2025 LYNCH, Circuit Judge. Alexandra Melino, a registered

nurse, sued her former employer, Boston Medical Center (BMC),

alleging that BMC violated Title VII of the Civil Rights Act and

Mass. Gen. Laws ch. 151B by denying her request for a religious

exemption under its August 21, 2021 policy mandating that all

employees and volunteers be vaccinated against COVID-19. The

district court granted summary judgment to BMC, holding that

Melino's requested exemption would have imposed undue hardship on

her employer. See Melino v. Bos. Med. Ctr., No. 22-12119,

, at *1-2 (D. Mass. May 28, 2024). Melino appeals both the

grant of summary judgment and an order denying her motion to strike

portions of an affidavit submitted by BMC. We affirm.

I.

We recite the undisputed facts of record.

Melino began working as a registered nurse in BMC's

Cardiac Intensive Care Unit (CCU) in 2014. Her primary duties

were providing direct care for patients in critical condition and

coordinating with those patients' families. In doing so, she

worked alongside physicians, four to eight other nurses, and two

certified nursing assistants, as well as others. Melino at times

also worked shifts in the Medical Intensive Care Unit and the

Surgical Intensive Care Unit.

At the start of the COVID-19 pandemic, in March 2020,

BMC converted several units, including the CCU where Melino worked,

- 2 - into COVID-19 units to deal with the overwhelming influx of

seriously ill patients infected with the COVID-19 virus. Between

January 31, 2020 and July 31, 2021, BMC treated 3,281 patients for

COVID-19. BMC says it was short-staffed; indeed, "several hundred"

BMC staff members reported contracting COVID-19. BMC's firsthand

experience was that its healthcare providers were more likely to

contract COVID-19 than others because of their greater-than-

average exposure to the virus, and that those providers were at

increased risk of spreading the virus to their patients, "which

included persons who were medically vulnerable to serious

complications and death from the disease." BMC determined that

any increased risk of COVID-19 transmission within the hospital

would "negatively impact its ability to provide critical care to

patients by reducing the number of staff." To address these

concerns, BMC adopted the federal Centers for Disease Control and

Prevention's (CDC) recommendation that "vaccination was the best

way to protect against severe illness, hospitalization, and death,

and reduce the transmission of COVID-19."1 BMC began offering the

1 The CDC recommended that "[a]ll healthcare personnel . . . get vaccinated against COVID-19" because they may be "at increased risk of infection" due to their work "providing critical care to those who are or might be infected." COVID-19 Vaccines for Healthcare Personnel, Centers for Disease Control and Prevention (May 27, 2021), https://www.cdc.gov/coronavirus/2019- ncov/vaccines/recommendations/hcp.html [https://perma.cc/DH2A- A7L7]. The CDC's website reported that "the vaccines reduce the risk of COVID-19, especially severe illness, among people who are fully vaccinated," offer "protection against symptoms," and "also

- 3 - COVID-19 vaccine to its employees soon after the vaccine became

available to healthcare workers in January 2021.

Based on its own experience and on the CDC

recommendations, BMC implemented an immunization policy on August

21, 2021, requiring all individuals working or volunteering at BMC

work locations to be immunized against COVID-19 according to CDC

guidelines. The policy permitted covered individuals to submit

requests for medical or religious exemptions to this requirement.

help avoid people get[ting] infected with the virus that causes COVID-19." COVID-19 Vaccine Effectiveness, Centers for Disease Control and Prevention (Aug. 16, 2021), https://www.cdc.gov/coronavirus/2019- ncov/vaccines/effectiveness/how-they-work.html [https://perma.cc/AJ88-7NGA]. It also advised that "COVID-19 vaccination can reduce the spread of the disease overall." COVID- 19 Vaccines Work, Centers for Disease Control and Prevention (August 16, 2021), https://www.cdc.gov/coronavirus/2019- ncov/vaccines/effectiveness/work.html [https://perma.cc/P9HY- UR6L]. The leading academic study on vaccine efficacy posted on the CDC's website related that "[t]he [CDC's] Advisory Committee on Immunization Practices recommended prioritization of [health care professionals] for COVID-19 vaccination to maintain provision of critical services and reduce spread of infection in health care settings." Tamara Pilishvili et al., Interim Estimates of Vaccine Effectiveness of Pfizer-BioNTech and Moderna COVID-19 Vaccines Among Health Care Personnel -- 33 U.S. Sites, January-March 2021, 70 Morbidity and Mortality Weekly Report 753, 753 (2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7020e2-h.pdf [https://perma.cc/N5PG-FAJ3]. That same study also reported that, based on preliminary findings in healthcare providers at 33 sites across 25 states, the "[e]ffectiveness of a complete 2-dose regimen of [the Pfizer or Moderna] vaccines was estimated to be 94%." Id. at 754. To the extent that this information supplements the record information concerning the CDC recommendations, we take judicial notice. See Does 1-6 v. Mills,

, 26 n.3 (1st Cir. 2021).

- 4 - Individuals who did not comply with the policy were "subject to

disciplinary action up to and including termination of their

employment" with BMC.

On September 9, 2021, Melino submitted a request for a

religious exemption to the COVID-19 vaccination requirement; she

sought to continue to work unvaccinated in her job. On September

24, 2021, BMC sent Melino a questionnaire seeking additional

information about her request. When Melino returned the

questionnaire, she merely repeated her request for a religious

exemption and refused to provide the other requested information.

On October 7, 2021, BMC notified Melino that it was denying her

exemption request and that her employment would be terminated if

she did not comply with the vaccination requirement by October 15,

2021. Melino did not attempt to engage in an interactive process

with BMC, nor did she request any accommodation short of a complete

exemption from BMC's vaccination requirement. She did not become

vaccinated, and BMC terminated her employment on October 15, 2021.

II.

After discovery, BMC moved for summary judgment with an

extensive supporting affidavit. It asserted two grounds for this

motion: that Melino had not established she held a bona fide

religious belief, and that even if she had, her requested exemption

would have imposed undue hardship on the hospital. Like the

- 5 - district court, we address only the second ground based on the

defense of undue hardship. See Melino,

, at *1.

Melino opposed BMC's motion, contending that there were

disputes of material fact as to "[t]he absolute risk reduction of

the COVID-19 vaccines," "how long, if at all, COVID-19 vaccines

protect the recipient against infection," and "how long, if at

all, COVID-19 vaccines prevent the recipient from transmitting

COVID-19." Melino admitted that "[i]f the vaccines worked, it

would not be difficult for [BMC] to establish undue hardship," but

contended that BMC did not "even try to make the case that the

vaccines do, in fact, work." To support this contention, she

pointed to a publicly available letter from Rear Admiral Denise M.

Hinton, Chief Scientist of the Food and Drug Administration to

Pfizer Inc., dated May 10, 2021, which authorized Pfizer's Pfizer-

BioNTech COVID-19 Vaccine for emergency use in individuals aged 12

and older. Letter from RADM Denise M. Hinton to Elisa Harkins at

2-3 (May 10, 2021), http://www.fda.gov/media/144412/download

[https://perma.cc/2PVE-8WUH]. That letter stated that "FDA's

analysis of the available efficacy data . . . confirmed the vaccine

was 95% effective . . . in preventing COVID-19 occurring at least

7 days after the second dose" in one phase of clinical trials, and

"100%" in a later phase.2

The letter further stated that

2 Melino's opposition to summary judgment included this letter as an exhibit.

- 6 - "[b]ased on these data . . . FDA concluded that it is reasonable

to believe that Pfizer-BioNTech COVID-19 Vaccine may be

effective." Id. at 3. Melino argued that "[t]he words 'may be

effective' do not convey a great deal of certainty."

Melino also moved to strike portions of an affidavit

from John M. Hickey that referred to BMC's reliance on the CDC's

recommendations. Melino argued that these references were

inadmissible "hearsay within the meaning of Fed. R. Evid. 801(c)."

The district court denied Melino's motion to strike,

holding that Melino had failed to comply with United States

District Court for the District of Massachusetts Local Rule

7.1(a)(2), which required her to certify that she had conferred

with BMC before filing her motion.3

In granting summary judgment, the court held that it was

undisputed that: (1) "Melino could not work remotely because her

job responsibilities included providing direct care to patients";

(2) "Melino could not work in-person while she remained

unvaccinated without risking the health and safety of her

patients"; and (3) "any feasible accommodation would have imposed

'substantial increased costs' on BMC." The district court further

held that "the record was devoid of any evidence from which a

3 The court also reasoned that the CDC's recommendations as to vaccination against COVID-19 and "the medical and statistical information upon which they rest" were subject to judicial notice.

- 7 - reasonable juror could give credence to [Melino's] medical

hypothesis" that the COVID-19 vaccines did not "work."

Accordingly, BMC was entitled to summary judgment on the basis

that granting Melino's requested exemption would impose undue

hardship.

III.

As to the district court's denial of the motion to

strike, we review both the denial and the application of the local

rules for abuse of discretion. See Amoah v. McKinney,

(1st Cir. 2017) (rulings on motions to strike reviewed for

abuse of discretion); Crowley v. L.L. Bean, Inc.,

(1st Cir. 2004) (application of local rules reviewed for abuse of

discretion). "District courts enjoy broad latitude in

administering local rules" and "are entitled to demand adherence

to specific mandates contained in the rules." Air Line Pilots

Ass'n v. Precision Valley Aviation, Inc.,

(1st

Cir. 1994).

Melino has developed no argument on appeal that the

district court abused its discretion in denying Melino's motion to

strike for failure to comply with Local Rule 7.1(a)(2) and does

not contend that she did, in fact, contact counsel for BMC to

discuss her motion. Instead, she renews the same argument she

attempted to make before the district court: that portions of

Hickey's affidavit were inadmissible hearsay.

- 8 - The district court did not abuse its discretion in

denying Melino's motion to strike. Rule 7.1(a)(2) states that

"[n]o motion shall be filed unless counsel certify that they have

conferred and have attempted in good faith to resolve or narrow

the issue." L.R, D. Mass. 7.1(a)(2). Counsel for Melino did not

so certify, and it was within the district court's discretion to

deny her motion on that basis. See Clausen v. Sea-3, Inc.,

(1st Cir. 1994) (affirming district court's

refusal to accept motion for failure to comply with local rules).

The hearsay objection is also without merit. The

objected-to passages of the summary judgment record were "offered

to . . . 'supply a motive for the listener's action'" and so did

not constitute hearsay. United States v. Colon-Diaz,

(1st Cir. 2008) (quoting United States v. Bailey,

(1st Cir. 2001)). And we have taken judicial notice of the

substance of the CDC's recommendations.

As to entry of summary judgment, our review is de novo.

Colony Place S., Inc. v. Volvo Car USA, LLC,

(1st Cir. 2024). A party is entitled to summary judgment when

there is no genuine dispute of material fact and judgment is

appropriate as a matter of law.

.

We assume, arguendo, that Melino has established a prima

facie case and turn directly to the Title VII defense of undue

hardship. The burden of proving undue hardship is on the employer.

- 9 - See Bazinet v. Beth Israel Lahey Health, Inc.,

(1st Cir. 2024). "'[U]ndue hardship' is shown when a burden is

substantial in the overall context of an employer's business."

Groff v. DeJoy,

(2023). When assessing whether

a requested accommodation would impose undue hardship, "courts

must apply the test in a manner that takes into account all

relevant factors in the case at hand, including the particular

accommodations at issue and their practical impact in light of the

nature, 'size and operating cost of [an] employer.'"

at 470-

71 (alteration in original).

Melino's request was that she continue working at the

hospital in the same capacity in the CCU and other intensive care

units without being vaccinated. BMC claimed that permitting Melino

to work unvaccinated would pose an undue hardship "by increasing

the risk of COVID-19 transmission amongst staff and patients."

Melino does not dispute that BMC could establish undue

hardship "[i]f the vaccines worked." But she argues on appeal

that "[t]he onus should [have been] on BMC to prove that the

products advertised as COVID-19 vaccines actually function as

vaccines so as to prevent recipients from catching and spreading

COVID-19." But it is uncontroverted that BMC implemented its

vaccine requirement based on the CDC's recommendations, which

describe vaccines as mitigating the effects and spread of COVID-

- 10 - 19.4 See Rodrique v. Hearst Commc'ns, Inc., No. 24-1289,

, at *4 (1st Cir. Jan 17, 2025) (finding undue hardship where

"the record demonstrate[d] that [defendant] relied 'on the

objective, scientific information available to [it],' with

particular attention to 'the views of public health authorities'"

(quoting Bragdon v. Abbott,

(1998)).

Melino's "undue hardship argument" also "fails because

no medical evidence in the summary judgment record contradicts"

BMC's position. Id. at *6. Melino's reliance on Rear Admiral

Hinton's May 10, 2021 letter undercuts her argument. Though the

letter does acknowledge that the Pfizer vaccine's effectiveness

was not known with absolute certainty, it also reports a rate of

COVID disease prevention between 95% and 100% and concludes that

"the known and potential benefits of [the] Pfizer-BioNTech COVID-

19 Vaccine outweigh the known and potential risks of the vaccine."

See Letter from RADM Denise M. Hinton to Elisa Harkins at 2-3,

supra. This record evidence, proffered by Melino, only serves to

support BMC's position.5

4 Indeed, counsel for Melino conceded at oral argument that "the CDC's position was that somebody who's been injected with a COVID-19 vaccine has, for some period of time, a lower likelihood of getting infected, and therefore transmitting it to somebody else." 5 Melino argues that two online articles that she quoted in her complaint cast doubt on the vaccine's efficacy. But the district court found that these articles were inadmissible hearsay and not properly in the record. Because Melino does not challenge these rulings on appeal, any such argument is waived. Sparkle

- 11 - For the first time on appeal, Melino attempts to argue

that BMC should have addressed whether it could have provided any

alternative accommodations beyond the complete exemption she

requested. She did not raise this argument in the district court

below, and it has been waived. See Teamsters, Chauffeurs,

Warehousemen & Helpers Union, Local No. 59 v. Superline Transp.

Co.,

(1st Cir. 1992) ("If any principle is settled

in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal.").

The rulings of the district court are affirmed.

Hill, Inc. v. Interstate Mat Corp.,

(1st Cir. 2015).

- 12 -