Together Employees v. Mass General Brigham Incorporated ( 2022 )

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, 2021
WL 5234394 (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"), 19 F.4th
1, 7-8 (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 19 F.4th at 2-7, 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,
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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, 19 F.4th at 2-3 (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 Id. at 7-8.
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.
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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, 16 F.4th 20, 29 (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., 555 U.S. 7, 20 (2008). The first two factors
are the most important. Cf. Nken v. Holder, 556 U.S. 418, 434
(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, 16 F.4th at 36] (citing
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Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1019 (1984)).
19 F.4th at 7-8. 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, 16 F.4th at 36. "[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, 415 U.S. 61, 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, 19 F.4th at 8.
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, 2022 WL 314155, 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.
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Airlines, Inc., No. 3:21-cv-1050-TJC-LLL, 2021 WL 6337144, 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, 415 U.S. at 92 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, 135 F.3d
58, 64 (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, 2022 WL 486610, 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, 415 U.S. at 92
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.").
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all of the alleged harms." Together Employees II, 19 F.4th at 8.
"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." Id.
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, 19 F.4th
152, 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." Id.We affirm the district court's denial of the appellants'
motion for a preliminary injunction.
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