Applegate v. St. Vincent Health, Inc.

1

KAYLYN APPLEGATE, et al., on behalf of themselves and those similarly situated, Plaintiffs, v. ST. VINCENT HEALTH, INC., et al., Defendants.

No. 1:22-cv-01097-JPH-MG

United States District Court, S.D. Indiana, Indianapolis Division

May 23, 2023

ORDER

MARIO GARCIA, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF INDIANA

Plaintiffs in this putative class action are current or former employees of healthcare facilities operated by Defendants. They allege that Defendants violated their rights under Title VII by denying their requests for a religious exemption to a COVID-19 vaccine requirement. Plaintiffs have previously amended their putative class action complaint several times adding individual plaintiffs and defendants as notice of right-to-sue letters continue to trickle in from the EEOC. [See Filing No. 28; Filing No. 54.] Now pending before the Court and ripe for a decision is Plaintiffs' Motion for Leave to File Fifth Amended Class Action Complaint (the "Motion"). [Filing No. 82.] Defendants oppose the Motion, [Filing No. 82], and Plaintiffs have replied to those arguments, [Filing No. 99].

I. Legal Standard

Courts should "freely give leave [to amend] when justice so requires," Fed.R.Civ.P. 15(a)(2),^[1] but leave to amend is not granted automatically. Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007). "District courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile." Arreola v. Godinez 546 F.3d 788, 796 (7th Cir. 2008).

II. Discussion

Plaintiffs' propose amending their complaint to: (1) add four new individual plaintiffs- Rebecca Broussard, Stanley Lundrigan, Sebastian Strizu, and Christine Tacorda-alleging violations of Title VII and the Americans with Disabilities Act (the "ADA"); (2) add one new individual plaintiff-Krystal Douglas-alleging a violation of Title VII only; and (3) add two new defendants-Ascension Seton Highland Lakes ("Highland Lakes") and Ascension Seton Williamson ("Williamson") (i.e., the employers of some of the new proposed plaintiffs)-both of which are Texas corporations.^[2]Of note, the ADA claims proposed on behalf of Ms. Broussard, Mr. Lundrigan, Mr. Strizu, and Ms. Tacorda are the first time claims under the ADA have been raised in this lawsuit.

Defendants oppose these amendments. First, they argue that Defendants will suffer undue prejudice from the proposed amendment because of the delay in adding the new plaintiffs and claims which will "inject[] new issues and chang[e] the scope of discovery." [Filing No. 85 at 45.] Second, Plaintiffs say the proposed amendments are futile for numerous reasons: (a) the Court lacks personal jurisdiction over the two new proposed defendants; (b) the proposed ADA claims are untimely and unexhausted; (c) the ADA claims fail as a matter of law as pled in the proposed complaint; (d) the ADA claims are incapable of class treatment; and (e) the proposed new complaint fails to cure the defects identified by Defendants in their pending Motion to Dismiss Plaintiffs' Fourth Amended Complaint. [Filing No. 61.] Defendants' arguments are addressed below.

A. Futility

"Usually, a defendant asserts futility when the original complaint fails to state a claim and the question is whether a proposed amended complaint might cure the original's defects." Lukis v. Whitepages Inc., 535 F.Supp.3d 775, 793-94 (N.D. Ill. 2021) (citing Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015)). Futility tests the proposed amendments under "the legal sufficiency standard of Rule 12(b)(6)." Runnion, 786 F.3d at 524. See also Townsel v. DISH Network L.L.C., 668 F.3d 967, 969 (7th Cir. 2012) ("The judge deemed the proposed amendment futile, which is functionally the same as allowing amendment and then dismissing under [Rule] 12(b)(6).").

1. The Proposed ADA Claims

Count IV of Plaintiffs' proposed amended complaint includes a claim under the ADA on behalf of proposed new plaintiffs Rebecca Broussard, Stanley Lundrigan, Christine Tacorda, and Sebastian Strizu (the "ADA Plaintiffs") and a class of those similarly situated. [Filing No. 82-1 at 231.] The ADA Plaintiffs allege that Defendants "regarded [them] as being disabled because of their COVID-19 vaccination status" and "on that basis, Defendants suspended, constructively discharged, and/or terminated [the ADA] Plaintiffs' employment." [Filing No. 82-1 at 231.] More specifically, Plaintiffs allege that Defendants regarded them as disabled "because as unvaccinated individuals[, Defendants] believed they were more transmissible of the Covid-19 virus (and its variants) than those who were vaccinated...." [Filing No. 82-1 at 206.] Defendants assert that the ADA claims are futile for a number of reasons.

a. Legal Sufficiency

Defendants contend that the ADA Plaintiffs fail to state a plausible ADA claim because the ADA Plaintiffs' unvaccinated status or perceived susceptibility to COVID-19 is not a disability under the ADA. [Filing No. 85 at 10.] In support of this contention, Defendants cite numerous cases addressing vaccination status from across the country. [Filing No. 85 at 10-12.]

In response, the ADA Plaintiffs try to thinly slice their allegations, arguing that they were discriminated against not because they are unvaccinated but rather "because they are perceived to have a physical impairment, i.e., non-vaccination and accompanying increased contagiousness, that Defendants believe ... renders [the ADA] Plaintiffs subject to infecting others at a rate faster than other employees." [Filing No. 99 at 12.] This finer interpretation of their allegations, say Plaintiffs, renders all the cases cited by Defendants inapposite. [Filing No. 99 at 12.] The ADA Plaintiffs further argue that the 2008 amendments to the ADA provide broader protections such that any perception by an employer of an impairment is actionable. [Filing No. 99 at 13-14.]

A person is "regarded as" disabled if he establishes that he "has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). "[I]mpairments that are transitory and minor" are not eligible to be a qualifying "regarded as" impairment. Id. at § 12102(3)(B). Furthermore, the ADA only covers present impairment such that a plaintiff must allege that the defendant employer believed the plaintiff had an impairment at the time of the adverse action. See Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 335-37 (7th Cir. 2019). In other words, a regarded-as claim is legally deficient if it is premised on a contention that the plaintiff might some day in the future become disabled. See id.(holding that the ADA's "regarded as prong does not "cover[] a situation where an employer views an applicant as at risk for developing a qualified impairment in the future").

Plaintiffs' chief problem with their proposed ADA claim is that their vaccination status is not itself a disability or impairment, nor do Plaintiffs cite legal support for such a contention. Rather, "[t]he decision to vaccinate or not to vaccinate is a personal choice, while a disability under the ADA is not something a person chooses." Johnson v. Mount Sinai Hosp. Grp., Inc., 2023 WL 2163774, at *6 (E.D.N.Y. Feb. 22, 2023) (citing Speaks v. Health Sys. Mgmt., Inc., 2022 WL 3448649, at *5 (W.D. N.C. Aug. 17, 2022)). See also Jorgenson v. Conduent Transp. Sols., Inc., 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023) ("[V]accination status is likewise not an impairment or an impediment to work-related tasks.") As one court considering a plaintiff's unvaccinated status explained, "[t]he [c]ompany only regarded [plaintiff] as being required-like all of its employees-to obtain a COVID-19 vaccine or be approved for an exemption and then 'regarded' her as having failed to do so by the deadline to become vaccinated." id. at *5. See also Shklyar v. Carboline Co., 616 F.Supp.3d 920, 926 (E.D. Mo. 2022) (holding that unvaccinated plaintiff did not plausibly allege an ADA "regarded as" claim because to "infer that [the employer] regarded [plaintiff] as having a disability would require inferring that [the employer] regarded all of its [employees] as having a disability"). Thus, Plaintiffs' unvaccinated status cannot plausibly support a claim that Defendants regarded them as disabled under the ADA.

Plaintiffs' efforts to characterize their unvaccinated status as a perceived contagiousness by Defendants is a distinction without a deference as unvaccinated status is a proxy for contagiousness. To the extent that the ADA Plaintiffs are contending that Defendants regarded them as having COVID-19, that theory also fails because individuals are not disabled when conditions are transitory and expected to last less than 6 months in duration. See 29 U.S.C. § 12102(3)(B). See also Lundstrom v. Contra Costa Health Services, 2022 WL 17330842 at *5 (N.D. Cal. Nov. 29, 2022) ("Federal courts generally agree that a COVID-19 infection is not a disability.") (collecting cases); Thompson v. City of Tualatin, 2022 WL 742682, at *2 (D. Or. Mar. 11, 2022) ("[B]eing perceived as having COVID-19 is not a cognizable disability under the ADA."). Likewise, Plaintiffs are foreclosed from an argument that Defendants perceived them as potentially infectious because the ADA's definition of disability does not cover cases where an employer perceives a person to be presently healthy with a potential to become disabled in the future. See Shell, 941 F.3d at 335.

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