McEntee v. Beth Isr. Lahey Health, Inc.

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PATRICIA MCENTEE, CHRISTINE GEARIN, JULIA CARLSON, MICHELLE PROVITOLA, JULIE DIGIROLAMO, DOROTHY CLARKE, JEANNE ARSENAULT, STACEY BARNES, MARCO BUZZANGA, DONNA CIULLA, JENNIFER JASILEWICZ, LAUREN MELLO, ERIKA CARDINALE, JENNIFER CORDY, LAUREN HETRICK, MARIAM MOMJIAN, PATRICIA MURPHY, RACHEL SOUCIA, FELICIA DELA CRUZ, ANGELA CHANDLER, MARY DICKENS, DESIREE LETELLIER, MARY O'CONNOR, BROOKE GROMYKO, MIRLENE LUCAS, and AMY DURETTE, Plaintiffs, v. BETH ISRAEL LAHEY HEALTH, INC., BETH ISRAEL DEACONESS HOSPITAL-PLYMOUTH, INC., NORTHEAST HOSPITAL CORPORATION, BETH ISRAEL DEACONESS MEDICAL CENTER, INC., WINCHESTER HOSPITAL, BETH ISRAEL LAHEY HEALTH PRIMARY CARE, INC., MOUNT AUBURN HOSPITAL, and NORTHEAST PROFESSIONAL REGISTRY OF NURSES, INC., Defendants.

No. 22-cv-11952-DLC

United States District Court, D. Massachusetts

August 1, 2023

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

DONALD L. CABELL, U.S.M.J.

I. INTRODUCTION

In 2021, defendant Beth Israel Lahey Health, Inc., and several of its affiliated health care facilities (collectively “the defendants”) implemented a mandatory vaccination policy for employees in response to the COVID-19 pandemic. The plaintiffs are all former employees who refused to be vaccinated, ostensibly on religious grounds, and were thereafter terminated. They in turn brought this suit asserting claims for assault (Count I); violation of the U.S Constitution's Fourteenth Amendment equal protection clause (Count II); violation of their substantive and procedural due process rights under the U.S. Constitution and the Massachusetts Declaration of Rights (Count III); and employment discrimination in violation of M.G.L. c. 151 and Title VII^[1](Count IV).

The defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Counts I, II, and III for failure to state a viable claim; the plaintiffs oppose. (Dkt. Nos. 14, 20). For the reasons explained below, the court grants the motion to dismiss.

II. RELEVANT BACKGROUND

When considering a motion to dismiss, the court accepts as true all non-conclusory factual allegations in the operative complaint and draws all reasonable inferences therefrom in favor of the plaintiffs. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Consistent with that standard, the following facts are drawn from the plaintiffs' amended complaint, (Dkt. No. 4).

The plaintiffs were healthcare professionals working at the defendants' healthcare facilities. (Id., ¶ 45). During the COVID-19 pandemic, the defendants' facilities were deluged with patients suffering from COVID-19. (Id., ¶ 43). To protect their employees, patients, and visitors from the infection and spread of COVID-19, the defendants issued multiple policies, including a mandate that all employees wear masks. (Id., ¶¶ 42, 44).

In August 2021, the defendants announced a “Mandatory Vaccine Policy” (the “Policy”) requiring all employees to have received or commenced a two-dose COVID-19 vaccine regimen by October 31, 2021. (Id., ¶ 47). The Policy would place those employees who had not received at least one vaccine dose by that date on a 14-day unpaid administrative leave. (Id., ¶ 48). If those employees still failed to comply with the Policy by the end of the administrative leave, the defendants would deem those employees to have voluntarily terminated their employment. (Id., ¶ 49). The Policy allowed employees to apply for certain exemptions by October 1, 2021, including an exemption based on sincerely held religious beliefs (a “religious exemption”). (Id., ¶ 50).

Each of the plaintiffs applied for religious exemptions before October 1, 2021, except for two (Lauren Mello and Brooke Gromyko) who applied for religious exemptions after October 1.^[2]Each of the plaintiffs requested alternate accommodations of working remotely, wearing masks, and periodic testing. The defendants denied each of the plaintiffs' requests for religious exemptions and accommodations, placed all plaintiffs on administrative leave under the Policy, and subsequently terminated each plaintiff's employment on various dates between November 5, 2021, and April 25, 2022. (Id., ¶¶ 56-113).

III. LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, a complaint must contain "sufficient factual matter" to state a claim for relief that is actionable as a matter of law and "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if, after accepting as true all non-conclusory factual allegations, the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio-Hernandez, 640 F.3d at 12. The court may not disregard properly pled factual allegations in the complaint even if actual proof of those facts is improbable. Id. Rather, the court's inquiry must focus on the reasonableness of the inference of liability that the plaintiff is asking the court to draw. Id. at 13.

IV. DISCUSSION

A. Count I: Assault

Count I alleges common law assault. (Dkt. No. 4, ¶ 127). Under Massachusetts law, an assault is “an act which puts another in reasonable apprehension of imminent harmful or offensive contact, that is, an attempted battery or an immediately threatened battery.” Conley v. Romeri, 806 N.E.2d 933, 939 n.6 (Mass. 2004) (citing Restatement (Second) of Torts § 21 (1965)). For attempted battery assault, the defendant must have attempted to cause physical harm to the victim. Commonwealth v. Gorassi, 733 N.E.2d 106, 110 (Mass. 2000) (citing Commonwealth v. Richards, 293 N.E.2d 854, 858 (Mass. 1973)).^[3]For threatened battery assault, the defendant must have engaged in “objectively menacing” conduct with the intent to cause apprehension of imminent physical harm. See id. (citing Commonwealth v. Musgrave, 649 N.E.2d 784, 787 n.7 (Mass. 1995)); see also Commonwealth v. Delgado, 326 N.E.2d 716, 719 n.3 (Mass. 1975) (quoting Restatement (Second) of Torts § 31 (1965)) (“Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.”). As the complaint alleges that “[t]he actions of the Defendants placed the Plaintiffs in fear and apprehension of imminent bodily harm,” the plaintiffs rely on the threatened battery theory. (Dkt. No. 4, ¶ 127). Indeed, this is the only allegation in the complaint specifically identified as relevant to Count I. (Id., ¶¶ 126-27).

The defendants contend that Count I fails to state a viable claim for assault because, broadly speaking, the complaint fails to allege facts showing the defendants acted intentionally to harm the plaintiffs, or that the plaintiffs actually had a fear of being harmed.^[4]The court essentially agrees. Beyond asserting conclusorily that the defendants' actions constituted a threat of bodily harm, the complaint fails to identify any “objectively menacing” conduct the defendants engaged in and fails moreover to allege facts showing that the defendants acted to put the plaintiffs in fear of imminent physical harm, or that the plaintiffs were indeed in fear of such harm. Implicitly recognizing as much, the plaintiffs in their opposition identify the defendants' assaultive conduct as “trying to force Plaintiffs to be vaccinated under the penalty of losing their jobs if they did not,” with the concomitant threat of physical harm being described as “sticking a syringe into Plaintiffs' arms, likened to battery, and injecting an unknown substance into their body, the safety of which is yet still unknown.” (Dkt. No. 20, p. 11; p. 11, n.1). This characterization fails to rectify the noted pleading deficiencies.

Even assuming the complaint were deemed to adequately plead that the plaintiffs felt pressured to be vaccinated, it still fails to allege facts showing that the plaintiffs were additionally placed in reasonable apprehension of imminent harmful or offensive contact. True, it alleges that employees were forced to choose between being vaccinated or terminated, but the threat of termination is a psychological rather than physical harm and thus does not constitute assault. See Gorassi, 733 N.E.2d at 110 (“[W]hat is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear or some other unspecified psychological harm in the victim.”). Not surprisingly, other courts have rejected the notion that a termination based on a refusal to be vaccinated may constitute a common law assault. See Reed v. Tyson Foods, Inc., No. 21-cv-01155-STA-jay, 2022 WL 2134410, at *14 (W.D. Tenn. June 14, 2022) (dismissing assault claim where plaintiff employees were “free to accept or refuse the COVID-19 vaccine . . . [and] pursue employment elsewhere”); Johnson v. Tyson Foods, Inc., 607 F.Supp.3d 790, 810 (W.D. Tenn. 2022) (same); see also Reese v. Tyson Foods, Inc., No. 3:21-05087-CV-RK, 2021 WL 5625411, at *7 (W.D. Mo. Nov. 30, 2021) (finding assault claim unlikely to succeed on the merits where plaintiff admitted he was not physically forced to receive vaccine).

In short, Count I fails to state a viable claim for assault, both because it fails to identify any “objectively menacing” conduct from the defendants and because the threatened psychological or emotional harm of termination is legally insufficient to constitute an assault.^[5]

B. Count II: Violation of Equal Protection Rights

Count II alleges that the defendants violated the plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment. (Dkt. No. 4, ¶¶ 129-32). “[A] litigant complaining of a violation of a constitutional right does not have a direct cause...