Opinion
No. 3:22-cv-88
2024-02-09
Bobby BELLARD, et al., Plaintiffs, v. The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, et al., Defendants.
Brian Field, Pro Hac Vice, Cristina Martinez Squiers, Pro Hac Vice, Edward H. Trent, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Mark Richard Alan Paoletta, Pro Hac Vice, Kenneth Alan Klukowski, Pro Hac Vice, Schaerr Jaffe LLP, Washington, DC, for Plaintiffs. Jessica Glatzer Mason, Foley Lardner LLP, Houston, TX, Brooke C. Bahlinger, Carrie B. Hoffman, Foley and Lardner LLP, Dallas, TX, for Defendant The University of Texas MD Anderson Cancer Center. Brooke C. Bahlinger, Carrie B. Hoffman, Foley and Lardner LLP, Dallas, TX, for Defendants Peter W.T. Pisters, Rosanna Morris, Carin Hagberg, Welela Tereffe, Roy Chemaly, Shibu Varghese. Brooke C. Bahlinger, Foley and Lardner LLP, Dallas, TX, for Defendant John Does 1-5.
Brian Field, Pro Hac Vice, Cristina Martinez Squiers, Pro Hac Vice, Edward H. Trent, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Mark Richard Alan Paoletta, Pro Hac Vice, Kenneth Alan Klukowski, Pro Hac Vice, Schaerr Jaffe LLP, Washington, DC, for Plaintiffs.
Jessica Glatzer Mason, Foley Lardner LLP, Houston, TX, Brooke C. Bahlinger, Carrie B. Hoffman, Foley and Lardner LLP, Dallas, TX, for Defendant The University of Texas MD Anderson Cancer Center.
Brooke C. Bahlinger, Carrie B. Hoffman, Foley and Lardner LLP, Dallas, TX, for Defendants Peter W.T. Pisters, Rosanna Morris, Carin Hagberg, Welela Tereffe, Roy Chemaly, Shibu Varghese.
Brooke C. Bahlinger, Foley and Lardner LLP, Dallas, TX, for Defendant John Does 1-5.
MEMORANDUM OPINION AND ORDER
Jeffrey Vincent Brown, United States District Judge:
Before the court are competing motions for summary judgment on all remaining
claims. Dkts. 75, 87. The court will deny the plaintiffs' motion and grant in part the defendants' motion.
I. Background
A. Parties and Facts
Three doctors, each employed by defendant University of Texas MD Anderson Cancer Center, have brought claims of religious discrimination under both 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964. Dkt. 21. Their claims are based on MD Anderson's denial of the plaintiffs' requested religious accommodation from MD Anderson's COVID-19 Vaccine Policy. Id. ¶ 2.
MD Anderson is a world leader in cancer treatment. Dkt. 75 at 11. As part of the University of Texas System, MD Anderson is a Texas government entity. Id.; 87-1 ¶ 1. The individual defendants are all MD Anderson employees. Dkt. 21 ¶¶ 12-29. The plaintiffs are physicians who have all worked at MD Anderson for about a decade. Dkt. 87-1 ¶¶ 64-65, 86-87, 96-97. Dr. Bellard and Dr. Speer are anesthesiologists, and Dr. Messick is a colorectal surgeon. Id. All of the plaintiffs administer care in close physical proximity to patients. Dkt. 75 at 12.
On November 4, 2021, the Centers for Medicare and Medicaid Service ("CMS") issued an interim final rule ("CMS Rule") that mandated COVID-19 vaccinations for all medical-facility staff, "unless exempt for medical or religious reasons." Biden v. Missouri, 595 U.S. 87, 89, 142 S.Ct. 647, 211 L.Ed.2d 433 (2022) (per curiam) (citing Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61555 (Nov. 4, 2021)). The CMS Rule made clear that a hospital or other medical facility's failure to comply could result in its loss of Medicare and Medicaid funding. Id.
One week after CMS announced the rule, MD Anderson leadership, including President Peter Pisters, participated in a "Leadership Townhall" where they explained the mandate, including its provision for religious exemptions. Dkt. 87-1 ¶ 6. Pisters also notified all staff that MD Anderson would issue a new policy ("Vaccine Policy") to comply with the CMS Rule. Id. The next day, Pisters sent an email detailing the process for requesting and evaluating religious exemptions. Id. ¶ 7.
MD Anderson created a five-person committee, the Religious Accommodation Committee ("RAC"), to evaluate requests for exemptions from the Vaccine Policy. Id. ¶ 12. To apply for an exemption, an employee would complete an online form to explain the grounds for their requested accommodation. Id. ¶ 36. As reviewed by the RAC, the form was anonymous and devoid of any identifying information. Id. ¶ 28; Dkt. 75 at 14. Each request was granted or denied based on majority vote of the RAC. Dkt. 87-1 ¶ 31.
In November 2021, MD Anderson received 590 religious-exemption requests. Id. ¶ 56. The RAC granted roughly half of them (298 approvals and 292 denials). Id.
The plaintiffs all requested religious exemptions (Dr. Bellard and Dr. Speer did so twice) and were denied. Dkt. 75 at 15. Subsequently, the plaintiffs failed to provide proof of vaccination in compliance with the Vaccine Policy. Id. at 16. Effective February 23, 2022, the plaintiffs were placed on paid administrative leave, had their clinical privileges suspended, and were sent notices of non-renewal of their employment contracts. Id.
On March 16, 2022, MD Anderson notified the plaintiffs that their exemption requests would be automatically reconsidered
based on updated legal guidance. Dkts. 75 at 17; 87-1 ¶ 183. On March 18, the plaintiffs filed this suit. Dkt. 1. On March 21, MD Anderson granted Dr. Speer's request for accommodation and reinstated her privileges. Dkt. 87-1 ¶ 196. The next day, MD Anderson did likewise for Dr. Bellard and Dr. Messick. Id. ¶¶ 194-95. Each plaintiff returned to their work shortly thereafter. Id. ¶¶ 198-200.
There is some disagreement as to the exact guidance that gave rise to the reconsideration of requests. See Dkts. 75 at 8; 87 at 6. At a minimum, Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610 (5th Cir. Feb. 17, 2022), published just days before the plaintiffs were placed on leave, provided some guidance from the Fifth Circuit on accommodations to vaccine mandates.
B. Procedural Background and Subsequent Events
On May 16, 2023, the court dismissed the plaintiffs' § 1983 damages claims against the defendants in their individual capacity, but denied the defendants' motion to dismiss the plaintiffs' claims for injunctive relief. Dkt. 59.
While the court considered the motion to dismiss, the Department of Health and Human Services ("HHS") announced its intent to withdraw the CMS Rule, though. the rule remained in effect for the time being. Dkts. 54 at 1; 59 at 13 n. 3. On May 31, 2023, CMS officially withdrew the CMS Rule. Dkt. 75 at 19. On July 25, MD Anderson announced that it was no longer requiring staff to get the COVID-19 vaccine. Dkt. 87-1 328.
C. The Requested Relief
The plaintiffs seek declaratory relief under all their claims. Dkt. 21 ¶¶ a—f. Specifically, the plaintiffs seek a declaratory judgment that the suspension of their medical privileges was unlawful. Dkt. 87 at 12. The plaintiffs have also requested several forms of injunctive relief, including the following permanent injunctions against the defendants:
• Refrain from enforcing MD Anderson's vaccine mandate against the plaintiffs. Dkt. 21 ¶ g.
• Retain the plaintiffs' current "positions, with all attendant rights and privileges, through the end of their current recurring annual contracts." Id.
• Offer the plaintiffs a contract renewal for their next annual period beginning September 1, 2023. Id.
• "[N]ot terminate or refuse to renew annual contracts on any ground relating to" the plaintiffs' suit. Id.
• "[P]erpetually grant any and all future[-]requested accommodations" from MD Anderson's vaccine mandate. Id.
• "[P]rovide detailed reasons in writing for any adverse actions, including but limited to future denials of accommodation requests, related to the subject matter of the plaintiffs' suit. Id.
• Require MD Anderson "to grant reasonable accommodations as required by federal law." Id. ¶ i.
The plaintiffs also seek nominal damages for alleged violations of their Fourteenth Amendment Due Process rights and nominal and compensatory damages for the alleged violations of their First and Fourteenth Amendment Equal Protection rights. Id. ¶ j. Finally, the plaintiffs seek damages under Title VII for religious discrimination. Id. ¶ k.
II. Legal Standard
Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). When cross-motions for summary
judgment have been filed, courts "review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014). For each cause of action moved on, the movant must set forth those elements for which it contends no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to offer specific facts showing a genuine dispute for trial. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "A dispute about a material fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation omitted).
The court "may not make credibility determinations or weigh the evidence" in ruling on a summary-judgment motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). But when the nonmoving party has failed "to address or respond to a fact raised by the moving party and supported by evidence," then the fact is undisputed. Broad. Music, Inc. v. Bentley, No. SA-16-CV-394-XR, 2017 WL 782932, at *2 (W.D. Tex. Feb. 28, 2017). "Such undisputed facts may form the basis for summary judgment." Id. The court may grant summary judgment on any ground supported by the record, even if the ground is not raised by the movant. United States v. Hous. Pipeline Co., 37 F.3d 224, 227 (5th Cir. 1994).
III. Analysis
A. Evidentiary Objections
Each party seeks to strike part of the summary-judgment record. The plaintiffs have moved to strike portions of the declaration of Cortney Hodge under the sham-affidavit doctrine. Dkt. 90. MD Anderson has moved to strike the plaintiffs' statement of undisputed facts for exceeding court-ordered page limits. Dkt. 99 at 1-3. MD Anderson also moves to strike portions of the affidavit of Harvey Risch on relevance and hearsay grounds. Id. at 4-9. Each motion will be addressed in turn.
The plaintiffs argue that the affidavit of Cortney Hodge, Dkt. 75-1, directly contradicts her deposition testimony and should be stricken as a sham affidavit. Dkt. 90. Hodge served as one of the five members of the RAC that evaluated requests for exemption from the Vaccine Policy. Dkt. 87-1 ¶ 13. On the RAC, she had one narrow task: to review each request and determine if the submission, in her estimation, was based on a clearly held religious belief, practice, or observance. Dkt. 100 at 8-9. At her deposition, Hodge recalled denying each of the plaintiffs' requests, but was unable to provide specific reasons why she believed each of the requests lacked sincerity. Dkt. 90 at 5-8. Months later, however, Hodge points in her affidavit to specific aspects of the plaintiffs' requests as her reason for doubting the sincerity of their belief. Dkt. 75-1. The plaintiffs argue this alteration in testimony, without any explanation, is grounds for striking portions of the affidavit. Dkt. 90.
The Fifth Circuit has recently reiterated that the bar for striking evidence under the sham-affidavit doctrine is a high one. Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th 472, 477 (5th Cir. 2022). "[N]ot every discrepancy in an affidavit justifies disregarding it when evaluating summary judgment evidence." Id. Rather, when an affidavit "supplements rather than contradicts prior deposition testimony," it is not considered a sham affidavit. Id. (quoting
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)). Such is the case here.
In her deposition, Hodge consistently testified that she denied the plaintiffs' requests because, in her subjective view, their requests were not religiously sincere. Dkt. 100 at 5-6. She simply did not provide details as to how or why she formed that belief. Dkt. 90 at 5-8. Her affidavit does not contradict the fundamental reason she denied the requests. Instead, it supplies additional details supporting that fundamental reason. An affidavit may clarify facts by giving greater detail or additional facts not provided in the deposition. Sabre Indus. Inc. v. Module X Sols., L.L.C., 845 F. App'x 293, 298 (5th Cir. 2021) (citing S.W.S. Erectors, 72 F.3d at 496). The plaintiffs' motion to strike is denied. Dkt. 90.
MD Anderson, meanwhile, seeks to strike the entirety of the plaintiffs' statement of undisputed facts ("SUF"), Dkt. 87-1, for exceeding court-ordered page limits. Dkt. 99 at 2-3. The court ordered that dispositive motions in this case were "not to exceed 40 pages." Dkt. 67 at 1. Nevertheless, the plaintiffs filed a 40-page motion for summary judgment, appending an additional 68 pages of undisputed facts as an exhibit. Dkts. 87, 87-1. Neither this court's local rules nor the Federal Rules contemplate the filing of a separate statement of facts. See Moore as next friend of Z.S. v. Clarksdale Mun. Sch. Dist., No. 4:22-CV-42-DMB-JMV, 2023 WL 2899276, at *1 (N.D. Miss. Apr. 11, 2023). The SUF stands in direct violation of this court's order.
Nevertheless, the court has determined that striking the entire exhibit, while firmly within its discretion, is too harsh a remedy in this situation. The SUF has now been cited in multiple filings. See Dkts. 97-1, 101-1. The parties have fiercely litigated this case and have waited several months for the court to consider and rule on these motions. Striking the SUF at this juncture would not alleviate any prejudice MD Anderson has suffered and would only delay the ultimate resolution of this case. So the court will deny MD Anderson's motion to strike. Dkt. 99. But moving forward, all parties are instructed to adhere to court-ordered page limits; any further gamesmanship will not be tolerated.
Finally, MD Anderson moves to strike the declaration of Harvey Risch on both relevance and hearsay grounds. Dkt. 99. Risch's affidavit testimony focuses on the efficacy of the COVID-19 vaccine. See Dkt. 99 at 4-9. But MD Anderson contends that Risch's opinion on the vaccine's efficacy is irrelevant as the Vaccine Policy was based entirely on the mandates of the CMS Rule, not on any efficacy evaluation by the hospital itself. Dkt. 106 at 6. But it makes sense that vaccine efficacy could have come into play in weighing the plaintiffs' request for religious accommodation against MD Anderson's efforts to comply with the CMS Rule and keep its patients safe. Risch's declaration is relevant.
The hearsay objection is also unfounded. Summary-judgment evidence "need only be capable of being 'presented in a form that would be admissible in evidence.'" LSR Consulting, LLC v. Wells Fargo Bank, N.A, 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)). Unsworn expert reports may be considered on summary judgment when they can later be presented in an admissible form at trial. See Patel v. Texas Tech Univ., 941 F.3d 743, 747 (5th Cir. 2019); Stagg-Shehadeh v. LPM Manufacturing, Inc., 2021 WL 2405605, at *3 (S.D. Tex. 2021). The motion to strike the declaration of Harvey Risch is denied. Dkt. 99.
Having denied both sides' motions to strike elements of the summary-judgment
record, the court will now consider the entire record in evaluating the competing summary-judgment motions.
B. Eleventh Amendment Immunity
The Eleventh Amendment affirms the fundamental principle that "sovereign immunity limits the grant of judicial authority in Article III." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Under the Eleventh Amendment, "[s]tates are immune from private suits unless they consent or unless Congress validly strips their immunity." Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022) (citing Sossamon v. Texas, 563 U.S. 277, 283-84, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011)). The parties agree that MD Anderson, "as part of the University of Texas System," enjoys Texas's sovereign immunity. Dkts. 75 at 11; 91 at 9; see also Somers v. UT MD Anderson Cancer Ctr., No. 4:19-CV-390, 2019 WL 13055095, at *2 (S.D. Tex. June 28, 2019) (collecting cases concluding that MD Anderson enjoys the same sovereign immunity as the State of Texas).
Despite the Eleventh Amendment's immunity for states, "Ex parte Young permits plaintiffs to sue a state officer in his official capacity for an injunction to stop ongoing violations of federal law." Scott, 28 F.4th at 671 (5th Cir. 2022) (citing Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The Ex parte Young "fiction" assumes that any state official violating federal law is acting without state authority and therefore a "federal court's injunction of those wrongful acts is not a judgment against the state itself." Brennan v. Stewart, 834 F.2d 1248, 1252 (5th Cir. 1988). "There are three basic elements of an Ex parte Young lawsuit. The suit must: (1) be brought against state officers who are acting in their official capacities; (2) seek prospective relief to redress ongoing conduct; and (3) allege a violation of federal, not state, law." Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020).
The second element, which is at issue here, requires "a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Va. Off. for Protection & Advocacy v. Stewart, 563 U.S. 247, 255, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) (cleaned up). In short, a complaint "must allege that the defendant is violating federal law, not simply that the defendant has done so." NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015). The requested forms of relief in this case fail to meet these requirements.
1. Declaratory Relief for Past Acts
The plaintiffs first request a declaratory judgment that the "suspension of [their medical] privileges was illegal and not due to fault or deficiency on [their] part." Dkt. 87 at 19. Though the plaintiffs contend that this relief "would provide a definite future benefit," such backwards-looking declarations do not fall within the ambit of Ex parte Young's narrow exception.
In deciding whether relief is prospective, courts "look to the substance rather than to the form of the relief sought." Papasan v. Allain, 478 U.S. 265, 279, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Relief that serves to "compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred." Id. at 278, 106 S.Ct. 2932. The Fifth Circuit has noted that a "backwards-looking, pasttense declaratory judgment," like the one requested here, is "tantamount to an
award of damages for a past violation of law, even though styled as something else." Freedom From Religion Found. v. Abbott, 955 F.3d 417, 425 (5th Cir. 2020) (quoting Papasan, 478 U.S. at 278, 106 S.Ct. 2932). The Ex parte Young doctrine "does not permit judgments against state officers declaring that they violated federal law in the past." Calhoun v. Collier, 78 F.4th 846, 851 (5th Cir. 2023) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)).
While plaintiffs classify this relief as "prospective," as it remedies a plausible future harm to their reputation or hiring prospects, such classification does not bring the requested relief within the narrow exception of Ex parte Young. As one of our sister courts has aptly noted, there is a meaningful distinction between an ongoing effect of a constitutional violation and an ongoing unlawful act by a state official. Stollings v. Texas Tech Univ., No. 5:20-CV-250-H, 2022 WL 824842, at *8 (N.D. Tex. Mar. 18, 2022) ("[A] state official's continuing, constitutionally violative act or omission—as opposed to merely an ongoing effect of a past violation—is required to overcome sovereign immunity in a claim for declaratory relief."). Likewise, there is a meaningful distinction between acts of defendants done exclusively in the past and those that are threatened to occur in the future. See Shah v. Univ. of Tex. Southwestern Med. Sch., 129 F. Supp. 3d 480, 496 (N.D. Tex. 2015) (requiring plaintiff to allege unconstitutional acts were not a onetime, past event but an ongoing violation).
Here, the requested declaration seeks to remedy an ongoing effect of a onetime event. The plaintiffs seek to alleviate their future reputational harm that stems from a onetime past event. As explored more fully below, the plaintiffs cannot point to any imminent future act by the defendants that would further this harm. The Eleventh Amendment bars such backwards-looking relief.
2. Injunctive Relief for Future Acts
To receive their requested injunctive relief, the plaintiffs must also show an ongoing or impending violation of federal law. "This requirement is similar but not identical to the Article III minimum for standing to request an injunction, which requires ongoing harm or a threat of imminent harm." NiGen Biotech, 804 F.3d at 394 n.5; see Air Evac EMS, Inc. v. Tex. Dep't of Ins. Div. of Workers' Comp., 851 F.3d 507, 513-14 (5th Cir. 2017) ("[T]here is significant overlap between standing and Ex parte Young's applicability.").
"Although standing is assessed as of the date on which suit was filed, courts may not decide cases that since have become moot because there is no longer a live case or controversy." Texas v. Equal Emp. Opportunity Comm'n, 933 F.3d 433, 449 (5th Cir. 2019). Nevertheless, it is firmly established that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). That is because the defendant may be "free to return to his old ways." Id. "The case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated." Id. at 633, 73 S.Ct. 894.
Previously, this court found the plaintiffs' requests for injunctive relief were not moot under the voluntary-cessation doctrine. Dkt. 59 at 12. Though MD Anderson eventually granted the plaintiffs the religious exemptions it previously denied, MD Anderson had not yet met its "formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur." Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (internal quotation marks and citation omitted).
Subsequent events have altered this analysis. On May 31, 2023, CMS withdrew the CMS Rule that gave rise to MD Anderson's challenged policy. Dkt. 75 at 21. On July 25, MD Anderson sent an email to all employees who were previously approved for a vaccine exemption, including the plaintiffs. Dkt. 87-3 at 836. It announced: "[E]ffective immediately, MD Anderson is ending its COVID-19 vaccine exemption program in accordance with the recently published final CMS Vaccine Rule. The final rule removes the vaccination and exemption requirements for all members of our workforce." Id. (emphasis in original).
At the motion-to-dismiss stage, the court was aware that HHS had announced its intent to withdraw the CMS Rule, but noted that mootness would depend on "what steps MD Anderson [would take] in response to this notice." Dkt. 59 at 13 n. 3.
What's more, on June 2, 2023, Governor Greg Abbott signed Senate Bill 29, which rendered MD Anderson's previously enacted Vaccine Policy illegal. Tex. S.B. No. 29, 88th Leg., R.S. (2023) (effective Sept. 1, 2023) ("[A] governmental entity may not implement, order, or otherwise impose a mandate requiring a person to be vaccinated against COVID-19.").
Given these subsequent events, MD Anderson is clearly not "free to return to [its] old ways." W. T. Grant Co., 345 U.S. at 632, 73 S.Ct. 894. MD Anderson has expressly announced that the withdrawal of the CMS Rule "removes the vaccination and exemption requirements for all members of our workforce." Dkt. 87-3 at 836. Though this email did not officially rescind the entire policy, such declarations of governmental actors are afforded "a presumption of good faith." Moore v. Brown, 868 F.3d 398, 407 (5th Cir. 2017). Courts therefore "assume that formally announced changes to official governmental policy are not mere litigation posturing." Id.
Moreover, MD Anderson's Vaccine Policy, which was once required by law, is now expressly forbidden by law. Compare 86 Fed. Reg. 61555 (2021) (mandating CMSaccredited hospitals to require vaccinations for all staff—unless exempt. for medical or religious reasons—or lose funding) with Tex. S.B. No. 29, 88th Leg., R.S. (2023) (prohibiting Texas governmental entities from "requiring a person to be vaccinated against COVID-19").
While this court previously held that injunctive relief was plausible under the voluntary-cessation doctrine, intervening events have clearly changed the analysis. The claims for injunctive relief are now moot.
The court cannot extend to the plaintiffs their requested prospective relief, either declaratory or injunctive. So the court will grant the defendants' motion for summary judgment on all constitutional claims, Counts I-IV.
C. Title VII Claims
Unlike the plaintiffs' constitutional claims, the Eleventh Amendment is inapplicable to Title VII claims. The Fifth Circuit has "repeatedly held that Title VII clearly abrogated the States' Eleventh Amendment immunity." Ussery v. State of La. on Behalf of La. Dep't of Health & Hosps., 150 F.3d 431, 434 (5th Cir. 1998) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 447, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)).
A claim for a failure to accommodate under Title VII is analyzed under a burden-shifting framework. Davis v. Fort
Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014). The employee must first establish a prima facie case of religious discrimination. Antoine v. First Student, Inc., 713 F.3d 824, 831 (5th Cir. 2013). "If the prima facie case is established, the burden shifts to the defendant to demonstrate either that it reasonably accommodated the employee, or that it was unable to reasonably accommodate the employee's needs without undue hardship." Id.
1. Prima Facie Case
To establish a prima facie case of religious discrimination under Title VII, the plaintiff must present evidence that: (1) he or she held a bona fide religious belief, (2) his or her belief conflicted with a requirement of her employment, (3) his or her employer was informed of her belief, and (4) he or she suffered an adverse employment action for failing to comply with the conflicting employment requirement. Davis, 765 F.3d at 485.
MD Anderson contends that the plaintiffs fail to satisfy the first and fourth elements. Dkt. 75 at 46.
As to religious sincerity, the inquiry "must be handled with a light touch, or judicial shyness." Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013). Generally, "claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions." Id.
In this case, however, the court's task is not to evaluate the sincerity of the plaintiffs' religious convictions. The issue presented is a more difficult one: determining whether the plaintiffs' beliefs "fall on the religious or secular side of the line." Foshee v. AstraZeneca Pharms. LP, 2023 WL 6845425, at *4 (D. Md. Oct. 17, 2023) (evaluating Title VII claim for religious accommodation from COVID-19 vaccine mandate); see also Frazee v. Illinois Emp. Security Dept., 489 U.S. 829, 833, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989) (recognizing "the difficulty of distinguishing between religious and secular convictions"). Harder still, "the same belief may be sincerely held by some as a religious belief and ... sincerely held by others as a simple matter of secular preference." Doswell v. Smith, No. 94-CV-06780, 139 F.3d 888 (4th Cir. 1998). In short, the court's narrow task is to discern whether the plaintiffs' motivations are religious or, alternatively, driven purely by other motivators couched in religious terms. See Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (claims "must be rooted in religious belief and not "based on purely secular considerations").
Determining which side of the religious-secular line requests for COVID-19 vaccine exemptions fall has proven a fact-intensive inquiry for other courts. As one has observed, plaintiffs generally need to "show that [their vaccination objections] are religious, rather than personal, political, or medical." Passarella v. Aspirus, Inc., Nos. 22-cv-342, 22-cv-392, 2023 WL 2455681, at *7 (W.D. Wis. Mar. 10, 2023). Several courts have dismissed Title VII claims for accommodation from COVID-19 vaccine mandates when plaintiffs failed to meet that burden. See Finkbeiner v. Geisinger Clinic, 623 F. Supp. 3d 458, 465 (M.D. Pa. 2022) (dismissing Title VII claim when accommodation request stemmed primarily from plaintiff's medical beliefs); Lawhead v. Brookwood Mgmt. Co., LLC, No. 5:22-cv-00886, 2023 WL 2691718, at *4 (N.D. Ohio Mar. 29, 2023) (dismissing Title VII claim when accommodation request focused on the "long-term efficacy and safety" of the vaccine); see also Prida v. Option Care Enters., Inc., 2023 WL 7003402, at *4 (N.D. Ohio Oct. 24, 2023) (collecting cases where courts concluded plaintiffs sought "to cloak scientific or political
beliefs [about COVID-19 vaccine] in religious language").
Here, however, each request for accommodation establishes a clear nexus between the objections to the vaccine and the plaintiffs' religious convictions. All of the plaintiffs, in one form or another, indicate that they were directed by God to not take the vaccine. Dkt. 87-1 ¶¶ 78, 90, 100. All three make clear that their principal rationale in refusing the vaccine was to follow God's will. Id. These viewpoints are quintessentially religious. This court will maintain the "usual approach" of this circuit and take the "parties at their word regarding their own religious convictions." Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610, at *1 n.2 (5th Cir. Feb. 17, 2022).
As to adverse employment action, the Fifth Circuit has "flattened" the previous standard, requiring a plaintiff to allege only facts "plausibly showing discrimination in hiring, firing, compensation, or in the 'terms, conditions, or privileges' of his or her employment." Hamilton v. Dallas Cnty., 79 F.4th 494, 502-03 (5th Cir. 2023) (en banc) (quoting 42 U.S.C. § 2000e-2(a)(1)). The plaintiffs meet this threshold on any number of grounds. To begin, revoking access to the entire MD Anderson campus was certainly a loss of the terms, conditions, or privileges of employment. See id. at 503 (concluding "with little difficulty" that the hours an employee works is a quintessential term or condition of employment). Further, their claimed reputational damage is more than de minimis as "the loss of clinical privileges is a serious matter to a doctor, the reason for which would be questioned in an employment interview." Daly v. Sprague, 675 F.2d 716, 726 (5th Cir. 1982). For these reasons, the court finds that each of the plaintiffs has suffered adverse employment action.
As the remaining elements are not contested, the plaintiffs have established their prima facie case of religious discrimination under Title VII.
2. Undue Hardship
MD Anderson contends that even if the plaintiffs establish a prima facie case, it remains entitled to summary judgment as any accommodation would have resulted in undue hardship. Dkt. 75 at 47. Undue hardship is an affirmative defense under Title VII. See Davis, 765 F.3d at 487.
The Supreme Court recently clarified the undue-hardship standard in Groff v. DeJoy, 600 U.S. 447, 143 S.Ct. 2279, 216 L.Ed.2d 1041 (2023). The unanimous Court rejected the prior "de minimis" standard, noting that, "under any definition, a hardship is more severe than a mere burden." Id. at 469, 143 S.Ct. 2279. Rather than attempt to reduce the appropriate standard to "one phrase," the Court called for a more complete approach: "[C]ourts 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." Id. at 470-71, 143 S.Ct. 2279. In sum, "an employer must prove that the burden of accommodation 'is substantial in the overall context of an employer's business.'" Hebrew v. Texas Dep't of Crim. Just., 80 F.4th 717, 721 (5th Cir. 2023) (quoting Groff, 600 U.S. at 468, 143 S.Ct. 2279).
MD Anderson contends that granting the plaintiffs' accommodation requests would force "patients to bear the risk of infection" and place their immunocompromised cancer patients "in jeopardy."
MD Anderson also argues that accommodating the plaintiffs could have resulted in loss of CMS accreditation as a violation of the CMS Rule. Dkt. 75 at 48. The court rejects this argument, as the CMS Rule required providers to "establish and implement a process by which staff may request an exemption from COVID-19 vaccination requirements based on an applicable Federal law." 86 Fed. Reg. at 61,572. Indeed, MD Anderson had already granted over 300 religious exemptions through the RAC. Dkt. 87 at 6. Granting three additional religious-accommodation requests did not place MD Anderson in immediate harm of monetary penalties or loss of accreditation. See Lee v. Seasons Hospice, No. 22-CV-1593 (PJS/DJF), 696 F.Supp.3d 572, 579-80 (D. Minn.Sept. 29, 2023) (finding defendant's reliance on CMS Rule to prove hardship misplaced as the rule required religious exemptions process).
Dkt. 75 at 48. MD Anderson clearly believed unvaccinated staff created some degree of health risk to their vulnerable population. See Dkts. 97 at 31; 75 at 18 (describing extra precautions taken for unvaccinated employees). Yet, as the plaintiffs highlight, MD Anderson did grant 310 requests for religious accommodations, and indicated they could have granted even more. Dkt. 87 at 46-47. In the eyes of the plaintiffs, if MD Anderson could stomach the risk of 310 unvaccinated staffers, what is the harm of three more? If it were only that simple.
While courts examine the specific hardship a specific accommodation imposes, they are also required to consider hardship in "the overall context of an employer's business." Groff, 600 U.S. at 468, 143 S.Ct. 2279. On occasion, this overall context includes the "aggregate effects when multiple employees are granted the same accommodation." Together Emps. v. Mass Gen. Brigham Inc., 573 F. Supp. 3d 412, 437 (D. Mass. 2021), aff'd, 32 F.4th 82 (1st Cir. 2022) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 n.15, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)). Moreover, in guidance specifically provided for COVID-19 religious accommodations, the EEOC noted that "[a] relevant consideration is the number of employees who are seeking a similar accommodation ... [that is,] the cumulative cost or burden on the employer." U.S. EQUAL EMP. OPPORTUNITY COMM'N, WHAT YOU SHOULD KNOW ABOUT COVID-19 AND THE ADA, THE REHABILITATION ACT, AND OTHER EEO LAWS (2021).
Even when aggregate harms are considered, courts are skeptical of hypothetical hardships. An employer cannot blindly hide behind a "what if everyone requested the same accommodation" defense. See Hebrew, 80 F.4th 717, 723 ("[A] hypothetical policy reevaluation if everyone received an accommodation cannot show that TDCJ faces an undue hardship if it grants one accommodation."). "The magnitude as well as the fact of hardship must be determined by the examination of the facts of each case." Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981).
At a macro-level, MD Anderson's potential hardship is evident, not hypothetical or speculative. MD Anderson treats cancer patients exclusively, meaning their patient population is among the most immunocompromised in the country. Dkt. 75 at 36. At the time of the plaintiffs' accommodation request, the Secretary of Health and Human Services deemed vaccination "necessary for the health and safety of individuals to whom care and services are furnished," especially those in poor health. 86 Fed. Reg. 61561, 61561. The Secretary concluded the "COVID-19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated." Biden, 595 U.S. at 92, 142 S.Ct. 647. Courts around the country have found an undue hardship for hospitals to bear the risk of spreading infection. Together Employees, 573 F. Supp. 3d at 437; Villareal v. Rocky Knoll Health Care Ctr., No. 21-CV-729, 2022
WL 17092090, at *7 (E.D. Wis. Nov. 21, 2022); Robinson v. Children's Hosp. Bos., 2016 WL 1337255, at *10 (D. Mass. Apr. 5, 2016).
The difficulty here, however, is at what magnitude MD Anderson's hardship rose to the level of "undue." While a small group of unvaccinated caregivers may have posed a real, but manageable, hardship to MD Anderson, a larger group may have presented an unduly dangerous risk. So at a macro-level, this hardship may be apparent, but at an individualized level, the inquiry is more difficult. See Adams v. Mass Gen. Brigham Inc., No. CV 21-11686-FDS, 2023 WL 6318821, at *6 (D. Mass. Sept. 28, 2023) (noting the undue-hardship analysis may not necessarily "focus on the nature of the requested accommodation, but on the number of persons to whom such an accommodation can be given.")
Suppose, for illustration, that MD Anderson granted each of the 590 religious-accommodation requests it received in November of 2021, but then rejected the 591st request purely on undue-hardship grounds. See Dkt. 87-1 ¶ 56. It would be difficult for MD Anderson to establish that this single incremental request altered the risk of infection such that the hardship, which they previously found acceptable, now became too much to bear. In isolation, it is hard to see how any one request could tip the scales of the hardship inquiry. Nevertheless, "it is surely true that the additional risk posed by granting hundreds, or indeed thousands, of additional exemptions would have been substantial." Adams, 2023 WL 6318821 at *8. Even if the line cannot be defined with precision, there surely exists some degree of epidemiological risk at which MD Anderson's hardship becomes undue.
This hypothetical was posed to two MD Anderson HR Employees, Shibu Varghese (Chief Human Resources Officer) and Cortney Hodge (Executive Director of Human Resources Strategic Partners). Both testified that MD Anderson could have accommodated every request received without undue hardship. Dkt. 87-6 at 406; Dkt. 87-7 at 97. Though clearly relevant, the court will not hold these representatives, testifying as to the administrative burdens of accommodations, to an epidemiological position. It is entirely possible that accommodating every request may not have imposed an undue administrative burden from the prospective of an HR professional but would nevertheless impose an intolerable medical risk from the prospective of a physician.
As to where this threshold of risk ought to sit, the court declines to substitute its own opinion for those of physicians and epidemiologists. As reasonable minds may differ as to the specific impact of each plaintiff's requested accommodation, this question poses a genuine issue of material fact. See Equal Emp't Opportunity Comm'n v. Universal Mfg. Corp., 914 F.2d 71, 74 (5th Cir. 1990) (finding that the circumstances of that case raised a question of fact concerning whether accommodation of the employee's religious beliefs would have caused an undue hardship); Adams, 2023 WL 6318821, at *8 (denying summary judgment when evaluating hardship created by one specific accommodation to COVID-19 vaccine policy).
* * *
The court denies the plaintiffs' motion for summary judgment. Dkt. 87. The court grants the defendants' motion for summary judgment as to the constitutional claims, Counts I-IV, but denies it as to the Title VII claims, Count VI. Dkt. 75.