Brox v. Hole

83 F.4th 87

Captain Albert BROX; Kim Fernandes; Paul Menton; Sonia Simoneau;Mark Anderson; Andrea Sheedy; James Bondarek; Steven Ennis;Christopher Ovaska; Jeffery D'Amario; and Tim Richardson, Plaintiffs, Appellants, v. Woods HOLE, Martha's Vineyard and Nantucket Steamship Authority; andJanice Kennefick, Defendants, Appellees.

No. 22-1267

United States Court of Appeals, First Circuit

October 6, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Patrick K. Daubert, with whom Daubert Law, PLLC was on brief, for appellants.

Ryan W. Jaziri, with whom Keith H. McCown, Jeffrey T. Collins, and Morgan, Brown & Joy, LLP, were on brief, for appellees.

Before Barron, Chief Judge, Lipez and Howard, Circuit Judges.

BARRON, Chief Judge.

Current and former employees of Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (the "Authority") appeal from the denial of their request for preliminary injunctive relief from the Authority's COVID-19 vaccine policy. We affirm in part, vacate in part, and remand.

I.

On August 19, 2021, the Governor of the Commonwealth of Massachusetts issued Executive Order No. 595 (the "Order"). The Order provided "that all executive department employees shall be required to demonstrate that they have received COVID-19 vaccination and maintain full COVID-19 vaccination as a condition of continuing employment." The Order also "encouraged" "[i]ndependent agencies and authorities, public institutions of higher education, elected officials, other constitutional offices, the Legislature, and the Judiciary . . . to adopt policies consistent with this Executive Order."

The Authority is a "public instrumentality" of the Commonwealth of Massachusetts that is charged with providing "adequate transportation of persons and necessaries of life for the islands of Nantucket and Martha's Vineyard." Chapter 701 of the Acts of 1960, as amended, §§ 1, 3. The Authority issued its own vaccine policy (the "Policy") modeled on the Order on January 3, 2022. The Policy requires all Authority employees to be "fully vaccinated in accordance with the CDC definition on or before February 16, 2022," and, thereafter, "to demonstrate that they continue to maintain COVID-19 vaccinations in accordance with the CDC definition of fully vaccinated and as adopted by the Massachusetts Department of Public Health."

The Policy allows for exemptions on certain specified grounds. First, the Policy states that "[e]mployees who verify and document that the vaccine is medically contraindicted [sic], which means administration of the COVID-19 vaccine to that individual would likely be detrimental to the individual's health," can seek a medical exemption from the Policy, "provided any such employee is able to perform their essential job functions with a reasonable accommodation that is not an undue burden on the Authority." Second, the Policy provides an exemption for employees "who object to vaccination due to a sincerely held religious belief, provided that any such employee is able to perform their essential job functions with a reasonable accommodation that is not an undue burden on the Authority."

The Authority's Human Resources Department is responsible for "[r]eview[ing] requests for reasonable accommodations to this [P]olicy and engag[ing] in the interactive process and issu[ing] timely approvals or denials of accommodation requests." The Policy reserves to the Authority the role and responsibility of "[i]ssuing and maintain[ing] a current COVID-19 verification policy" and "[r]eview[ing] any approved exemptions."

On February 11, 2022, the appellants filed a "verified complaint" in Barnstable Superior Court that named the appellees as the defendants. The complaint alleged the following facts.

Nine of the eleven appellants in this case submitted timely requests for religious exemptions from the Policy. The requests were denied through form letters signed by Janice Kennefick, the Authority's Director of Human Resources. The letters stated, in pertinent part:

After consideration and review of the information and documentation that you submitted, we are unable to approve your request due to the direct threat your unvaccinated status would pose to the health and well-being of your fellow employees, our customers and/or our vendors. Due to the nature of your position . . . , you are expected and required to interact daily in person with your fellow employees, our customers and/or our vendors. Accordingly, we determined that an exemption from the Policy would unreasonably risk their safety as well as your own.

(Emphases added.)

On January 28, 2022, the nine appellants whose religious exemption requests had been rejected were placed on unpaid suspension based on their failure to comply with the Policy. The remaining two appellants submitted requests for religious exemptions to Kennefick but were informed that the time for submitting such requests had expired. These appellants were then placed on unpaid suspension for their failure to comply with the Policy.

All eleven appellants were warned that failure to be fully vaccinated in accordance with the Policy would eventually result in termination. One of the appellants was subsequently vaccinated on or around February 2, 2022.

The complaint pleaded claims under 42 U.S.C. § 1983, that the appellees in administering the Policy had denied the appellants their rights under the Free Exercise Clause of the First Amendment of the United States Constitution, as incorporated against the states by the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303-05, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and to "[p]rivacy, [p]ersonal [a]utonomy, and [p]ersonal [i]dentity" under the Due Process Clause of the Fourteenth Amendment. The complaint also pleaded state-law claims that the appellees in administering the Policy had denied the appellants their rights to religious worship under the Massachusetts Declaration of Rights and to be free from religious discrimination under M.G.L. c. 151B, § 4.

In support of the free exercise claim, the complaint further alleged that the appellees not only had denied all the appellants' requests for religious exemptions but also had granted a medical exemption to Greg Manchester, "a Captain, akin to [appellant] Brox" who is not a party to this case. The complaint alleged in addition that Manchester's medical exemption would expire in April 2022, at which point he would "likely be 'in the same boat' as [appellants] with [appellees] 'unable to approve' his request for religious exemption."

The complaint sought relief that included a declaration that the Policy was invalid and unconstitutional and an ex-parte temporary restraining order (TRO) that would enjoin the Authority and Kennefick, in her official capacity, from terminating the appellants. On the same day that the appellants filed their complaint, they filed a motion in Barnstable Superior Court to expedite consideration of their request for an ex-parte TRO, and the court granted the motion.

On February 14, 2022, however, the appellees removed the case to the United States District Court for the District of Massachusetts. While the appellants' action was pending in the District Court, three of the appellants, including Brox, agreed to be vaccinated, joining the one appellant who already was. The other seven appellants remained unvaccinated and on unpaid suspension.

In the District Court, the appellants requested a preliminary injunction. That "extraordinary form of relief" may be granted only upon a showing that the plaintiff "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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The appellees filed a brief in opposition to the appellants' request for the preliminary injunction. The appellees contended in their brief in opposition that the appellants' federal claims were barred by Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), because neither the Authority, as "an agency of State government," nor Kennefick, "in her official capacity" at the Authority, are " 'persons' within the meaning of § 1983 and cannot be sued in a § 1983 action." The appellees further contended that the appellants' state-law claims were barred by the Eleventh Amendment of the United States Constitution, which prohibits federal courts from supervising state officials' compliance with state law.

In a reply brief in support of the request for the preliminary injunction, the appellants disputed the appellees' contentions. The appellants also attached an affidavit and a copy of a letter in support of the merits of their various claims.

The affidavit was by Manchester, and in it he attested that he had requested a medical exemption based on a letter from his health care provider that "advise[d] against COVID-19 vaccination for the next [three] months" due to Manchester's "recent COVID-19 infection." He further attested that, while his request for the medical exemption request was pending, he had submitted a request for a religious exemption that was subsequently denied. He then attested that on February 16, 2022, he was briefly put on "unpaid suspension" when he failed to become fully vaccinated, but was "approved to continue to work under the medical exemption" on February 21, 2022 and had "been back to work at [his] usual post, duties and schedule ever since, under the reasonable accommodations of masking and testing." The letter was from Kennefick to Manchester, and it denied Manchester's request for a religious exemption in the same manner and for the same reasons that the appellants' religious exemption requests had been denied.

The appellants argued in...