Provider respondents' opposition to emergency application — Does v. Mills (U.S.)

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14034791.1 
No. 21A90 
 
 
 
JOHN DOES, 1-3; JACK DOES, 1-1000; JANE DOES, 1-6; JOAN DOES, 1-1000, 
 
Applicants, 
v. 
 
JANET T. MILLS, in her official capacity as Governor of the State of Maine; 
JEANNE M. LAMBREW, in her official capacity as Commissioner of the Maine 
Department of Health and Human Services; NIRAV D. SHAH, in his official 
capacity as Director of the Maine Center for Disease Control and Prevention; 
MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS 
HEALTHCARE, LLC; NORTHERN LIGHT HEALTH FOUNDATION; 
MAINEGENERAL HEALTH, 
 
Respondents. 
 
On Emergency Application for Writ of Injunction to the Honorable 
Stephen G. Breyer, Associate Justice of the United States Supreme Court 
and Circuit Justice for the First Circuit 
 
PROVIDER RESPONDENTS’ OPPOSITION TO EMERGENCY 
APPLICATION FOR WRIT OF INJUNCTION 
 
RYAN P. DUMAIS 
   rdumais@eatonpeabody.com 
KATHERINE PORTER 
  kporter@eatonpeabody.com 
Eaton Peabody 
100 Middle Street 
P.O. Box 15235 
Portland, Maine 04112-5235 
207-992-4820 
 
NOLAN L. REICHL - Counsel of Record  
   nreichl@pierceatwood.com 
JAMES R. ERWIN 
   jerwin@pierceatwood.com 
KATHARINE I RAND 
   krand@pierceatwood.com 
Pierce Atwood LLP 
254 Commercial Street 
Portland, ME  04101 
207-791-1100 
 
Attorneys for MaineHealth; Genesis Healthcare of Maine, LLC; Genesis Healthcare, 
LLC; Northern Light Health Foundation; MaineGeneral Health 

 
14027925.2 
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DISCLOSURE STATEMENT OF DEFENDANT MAINE HEALTH 
Defendant MaineHealth (“Defendant”), through counsel and in accordance 
with Rule 26.1 of the Federal Rules of Appellate Procedure, hereby discloses it is a 
Maine non-profit corporation, the parent corporation of which is MaineHealth 
Services, which is also a Maine non-profit corporation. 
DISCLOSURE STATEMENT OF 
DEFENDANT GENESIS HEALTHCARE OF MAINE, LLC 
Defendant Genesis HealthCare of Maine, LLC (“Defendant”), through counsel 
and in accordance with Rule 26.1 of the Federal Rules of Appellate Procedure, 
hereby discloses it is a Maine limited liability company and that its sole member is 
GHC Holdings LLC.  GHC Holdings LLC is a Delaware limited liability company 
and its sole member is Genesis HealthCare LLC.  Genesis HealthCare LLC is a 
Delaware limited liability company and its sole member is Gen Operations II, LLC.  
Gen Operations II, LLC is a limited liability company the sole member of which is 
GEN Operations I, LLC.  GEN Operations I, LLC is a limited liability company of 
which the sole member is FC-GEN Operations Investment, LLC.  FC-GEN 
Operations Investment, LLC is a limited liability company in which the following 
have ownership interests: 
 Sundance Rehabilitation Holdco, Inc. is a Delaware corporation having a 
5.3% membership interest 
 Sun Healthcare Group, Inc. is a Delaware corporation having a 64.1% 
membership interest, and also a 100% interest in Sundance Rehabilitation 
Holdco, Inc. 

 
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 Multiple investors have a 30.6% interest holding rights to income and losses 
but no rights as to control. 
Genesis Healthcare, Inc. is a publicly traded corporation organized in Delaware 
and the sole shareholder of Sun Healthcare Group, Inc.  Genesis Healthcare, 
Inc., is traded on OTCMKTS under the ticker symbol “GENN”.  There is no 
shareholder owning 10% or more of Genesis Healthcare, Inc., shares. 
DISCLOSURE STATEMENT OF 
DEFENDANT GENESIS HEALTHCARE LLC 
Defendant Genesis HealthCare LLC (“Defendant”), through counsel and in 
accordance with Rule 26.1 of the Federal Rules of Appellate Procedure, hereby 
discloses it is a Delaware limited liability company and that its sole member is GEN 
Operations II, LLC.  GEN Operations II, LLC is a limited liability company the sole 
member of which is GEN Operations I, LLC.  GEN Operations I, LLC is a limited 
liability company the sole member of which is FC-GEN Operations Investment, 
LLC.  FC-GEN Operations Investment, LLC is a limited liability company in which 
the following have ownership interests:   
 Sundance Rehabilitation Holdco, Inc. is a Delaware corporation having a 
5.3% membership interest 
 Sun Healthcare Group, Inc. is a Delaware corporation having a 64.1% 
membership interest, and also a 100% interest in Sundance Rehabilitation 
Holdco, Inc. 
 Multiple investors have a 30.6% interest holding rights to income and losses 
but no rights as to control.   

 
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Genesis Healthcare, Inc. is a publicly traded corporation organized in Delaware 
and the sole shareholder of Sun Healthcare Group, Inc.  Genesis Healthcare, 
Inc., is traded on OTCMKTS under the ticker symbol “GENN”.  There is no 
shareholder owning 10% or more of Genesis Healthcare, Inc., shares. 
DISCLOSURE STATEMENT OF 
DEFENDANT MAINEGENERAL HEALTH 
Defendant MaineGeneral Health (“Defendant”), through counsel and in 
accordance with Rule 26.1 of the Federal Rules of Appellate Procedure, hereby 
discloses that it is a Maine non-profit corporation, and that it has no parent 
corporation. 
DISCLOSURE STATEMENT OF 
NORTHERN LIGHT HEALTH FOUNDATION 
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Defendant 
Northern Light Health Foundation makes the following disclosures regarding its 
corporate status: Northern Light Health Foundation is a T13-B non-profit 
corporation.  It has no parent corporation.  As a non-profit, it has no owners or 
shareholders, but has one corporate member, Eastern Maine Healthcare Systems 
d/b/a Northern Light Health, which is also a T13-B non-profit corporation. 

 
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TABLE OF CONTENTS 
Page 
DISCLOSURE STATEMENT OF DEFENDANT MAINE HEALTH .......................... i 
DISCLOSURE STATEMENT OF DEFENDANT GENESIS HEALTHCARE 
OF MAINE, LLC ............................................................................................................. i 
DISCLOSURE STATEMENT OF DEFENDANT GENESIS HEALTHCARE 
LLC ................................................................................................................................. ii 
DISCLOSURE STATEMENT OF DEFENDANT MAINEGENERAL 
HEALTH ....................................................................................................................... iii 
DISCLOSURE STATEMENT OF NORTHERN LIGHT HEALTH 
FOUNDATION ............................................................................................................. iii 
TABLE OF AUTHORITES ............................................................................................ v 
STATEMENT OF THE CASE ....................................................................................... 1 
STATEMENT OF FACTS ............................................................................................. 2 
ARGUMENT .................................................................................................................. 5 
I. 
STANDARD OF REVIEW ....................................................................... 5 
II. 
PLAINTIFFS’ ENTITLEMENT TO RELIEF AGAINST THE 
PROVIDER DEFENDANTS IS FAR FROM INDISPUTABLY 
CLEAR ...................................................................................................... 6 
III. 
CRITICAL AND EXIGENT CIRCUMSTANCES DO NOT 
EXIST, AS PLAINTIFFS HAVE ADEQUATE REMEDIES AT 
LAW SHOULD THEY PREVAIL ON THEIR TITLE VII 
CLAIMS .................................................................................................... 8 
CONCLUSION ............................................................................................................. 11 
 
 

 
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TABLE OF AUTHORITES 
Page(s) 
CASES 
Albermarle Paper Co. v. Moody,  
422 U.S. 405 (1975) ............................................................................................. 9 
Baltgalvis v. Newport News Shipbuilding Inc.,  
132 F.Supp.2d 414 (E.D. Va. 2001) 
aff’d 15 F. App’x. 172 (4th Cir. 2001) ................................................................. 7 
Brown v. Gilmore,  
533 U.S. 1301, 122 S.Ct. 1 (2001) ................................................................... 5, 6 
Ohio Citizens for Responsible Energy, Inc. v. NRC.,  
479 U.S. 1312, 107 S.Ct. 682 (1986) ................................................................... 5 
Roman Catholic Diocese of Brooklyn v. Cuomo,  
141 S. Ct. 63 (2020) ............................................................................................. 9 
Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc.,  
673 F.3d 1 (1st Cir. 2012) ............................................................................... 6, 7 
Seaworth v. Pearson,  
203 F.3d 1056 (8th Cir. 2000) ............................................................................. 7 
Sutton v. Providence St. Joseph Medical Center,  
192 F.3d 826 (9th Cir. 1999) ........................................................................... 7, 8 
Trans World Airlines, Inc. v. Hardison,  
432 U.S. 63 (1977) ............................................................................................... 7 
Weber v. Leaseway Dedicated Logistics, Inc.,  
166 F.3d 1223 (10th Cir. 1999) ........................................................................... 7 
Wisconsin Right to Life, Inc. v. Federal Election Comm’n,  
542 U.S. 1306, 125 S.Ct. 2 (2004) ....................................................................... 6 
Yeager v. FirstEnergy Generation Corp.,  
777 F.3d 362 (6th Cir. 2015) ............................................................................... 8 
 
 
 

Page(s) 
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vi 
STATUTES 
18 M.R.S. § 8054(1) ........................................................................................................ 4 
22 M.R.S. § 802(1)(D) ..................................................................................................... 4 
22 M.R.S. § 802(3) .......................................................................................................... 4 
22 M.R.S. § 802(4-B) ...................................................................................................... 3 
22 M.R.S. § 803-04 ......................................................................................................... 5 
28 U.S.C. § 1651(a) ........................................................................................................ 5 
42 U.S.C. § 1981a ......................................................................................................... 10 
42 U.S.C. § 1985 ............................................................................................................. 6 
42 U.S.C. § 2000e(j) ....................................................................................................... 7 
42 U.S.C. § 2000e-5(f)(1) .............................................................................................. 10 
Title VII of the Civil Rights Act of 1964 ............................................................. passim 
RULES 
10-144 C.M.R. Ch. 264 (amended Apr. 14, 2021) ......................................................... 4 
10-144 C.M.R. Ch. 264 (amended Aug. 12, 2021) ......................................................... 4 
10-144 C.M.R. Ch. 264, §1(D) ........................................................................................ 3 
LEGISLATIVE DOCUMENTS 
P.L. 2019, ch. 154 ........................................................................................................... 3 
OTHER AUTHORITIES 
Health Care Worker Vaccination FAQS, MAINE.GOV (last updated Oct. 13, 
2021) at FAQ 1, https://www.maine.gov/covid19/vaccines/public-
faq/health-care-worker-vaccination .................................................................... 4 
Mills Administration Provides More Time for Health Care Workers to Meet 
COVID-19 Vaccination Requirement, MAINE.GOV (Sept. 2, 2021), 
https://www.maine.gov/governor/mills/news/mills-administration-
provides-more-time-health-care-workers-meet-covid-19-vaccination ............... 4 
 

 
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STATEMENT OF THE CASE 
Eighteen months after the start of the COVID-19 pandemic that had taken 
the lives of more than 600,000 people in the United States and six months after the 
three highly effective COVID-19 vaccines became readily available in Maine, the 
State of Maine added COVID-19 to the list of immunizations required of employees 
working in licensed healthcare facilities.  Claiming that taking any of the vaccines 
would violate their sincerely held religious beliefs, Plaintiffs unsuccessfully 
petitioned the United States District Court for the District of Maine and then the 
First Circuit Court of Appeals for injunctive relief to enjoin enforcement of this 
requirement. (Plaintiffs’ Emergency Application for Writ of Injunction Pending 
Disposition of Petition for Writ of Certiorari (“Application”) Ex. 5, Order on Pls.’ 
Mot. for Prelim. Inj., ECF No. 65 (the “Order”); Application Ex. 1, Opinion on 
Appeal (the “Opinion”).)  As the courts correctly observed in denying their motion 
and affirming that denial, respectively, this case is not about whether the plaintiff 
healthcare workers can be forced to accept the COVID-19 vaccine against their will 
and in contravention of their religious beliefs.  Plaintiffs have sworn in their 
Verified Complaint that they cannot and will not receive the COVID-19 vaccine.  
Thus, the issue is whether they can continue to work unvaccinated in licensed 
healthcare facilities after the State’s deadline of October 29, 2021.  What is at stake 
for Plaintiffs, then, is the loss of their employment, a harm for which they can be 
made whole under Title VII of the Civil Rights Act of 1964 (Title VII) after 
exhausting their administrative remedies and litigating the merits of their 
individual discrimination claims against the Provider Defendants.   

 
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The likelihood of Plaintiffs prevailing with respect to those individual 
discrimination claims is exceedingly low.  Plaintiffs urge upon this Court a novel 
theory that the Provider Defendants are required to violate state law, disregard a 
condition of their licenses, and jeopardize the health and safety of their patients and 
workers in order to accommodate their religious beliefs under Title VII.  This 
position defies common sense and is contrary to well settled law.  Doing what the 
law requires the Provider Defendants to do does not give rise to any cause of action 
by Plaintiffs.  As the State Defendants explain, it does not violate the first 
amendment rights of any of the plaintiffs; nor would it violate Title VII.    
In sum, regardless of the fate of the immunization rule, which the Provider 
Defendants1 believe to be constitutional, Plaintiffs are extraordinarily unlikely to 
succeed on the merits of their Title VII claims against the Provider Defendants, and 
they have failed to articulate any reason why the established framework for the 
litigation of employment discrimination claims—which includes administrative 
exhaustion and pursuant to which a successful plaintiff may recover damages and 
post-trial injunctive relief—is inadequate.  The Court should deny the Application. 
STATEMENT OF FACTS 
The background set forth in the First Circuit’s Opinion (Opinion at 4-14) and 
the District Court’s Order (Order at 1-10) provide a complete and accurate 
recitation of the facts.  Nonetheless, for the Court’s convenience, the Provider 
Defendants offer the following brief factual background. 
                                            
1 Whenever referenced herein, “Provider Defendants” refers collectively to MaineHealth, Genesis 
HealthCare of Maine LLC, Genesis HealthCare LLC, MaineGeneral Health, and Northern Light 
Health Foundation. 

 
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Maine has a long history of requiring healthcare workers at Designated 
Health Facilities2 to be vaccinated against infectious diseases subject to limited 
exemptions.  (See Opinion at 4-6; Order at 8-10.)  Contrary to Plaintiffs’ repeated 
and knowingly false refrain, Maine did not eliminate the religious exemption to 
mandatory vaccine requirements for certain healthcare workers in conjunction with 
its directive that these workers be vaccinated against COVID-19.  (See Application 
at 2, 8-9.)  Rather, in response to declining vaccination rates in the State of Maine, 
the Maine Legislature amended the healthcare vaccination law in 2019, before the 
pandemic, to remove previously recognized religious and philosophical exemptions.  
See P.L. 2019, ch. 154, §§ 2, 9-11 (varying effective dates); 22 M.R.S. § 802(4-B).  As 
a result, the only remaining exemption to immunization for healthcare workers is a 
medical exemption for individuals for whom vaccination would be medically 
inadvisable and for whose protection the non-medical exemptions were removed.  
See id..    
In March 2020, Maine voters rejected a peoples’ veto referendum, thereby 
endorsing the Maine Legislature’s decision to eliminate non-medical exemptions 
from vaccination for healthcare workers at Designated Healthcare Facilities.  On 
April 14, 2021, following the referendum and consistent with the directive from the 
Maine Legislature, the Maine Department of Health and Human Services (“DHHS”) 
formally amended its existing Immunization Requirements for Healthcare Workers 
                                            
2  The term “Designated Healthcare Facility” is defined in the rules to include “a licensed nursing 
facility, residential care facility, Intermediate Care Facility for Individuals with Intellectual 
Disabilities . . ., multi-level healthcare facility, hospital, or home health agency subject to licensure 
by the State of Maine, Department of Health and Human Services Division of Licensing and 
Certification.”  10-144 C.M.R. Ch. 264, §1(D).   

 
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rule to remove the religious and philosophical exemptions from its text.  
(Respondents’ Appendix (R.A.) at 61-67, 10-144 Me. Code R. § 264 (amended 
Apr. 14, 2021).)  Then, due to the growing COVID-19 crisis in the United States and 
Maine, on August 12, 2021, DHHS issued an emergency rule further amending the 
Rule by adding the COVID-19 vaccine to the list of mandated vaccines for 
healthcare workers.3  (R.A. at 74-82, 10-144 C.M.R. Ch. 264 (amended Aug. 12, 
2021).4  The Rule requires employees of Designated Healthcare Facilities to receive 
their final dose of the COVID-19 vaccine on or before September 17, 2021.  Id. at 
§§ 264(1)(E)-(F), (2), (5), (7).  On or about September 2, 2021, Governor Janet Mills 
announced that DHHS would not begin enforcing the Rule until October 29, 2021 so 
healthcare workers would have additional time to come into compliance.  See Mills 
Administration Provides More Time for Health Care Workers to Meet COVID-19 
Vaccination 
Requirement, 
MAINE.GOV 
(Sept. 
2, 
2021), 
https://www.maine.gov/governor/mills/news/mills-administration-provides-more-
time-health-care-workers-meet-covid-19-vaccination. 
The Provider Defendants each operate one or more Designated Healthcare 
Facilities5, licensed and regulated by DHHS.  (See Decl. of April Nichols ¶3, (R.A. 
                                            
3 DHHS has the authority to issue emergency rules as part of its authority to “[e]stablish procedures 
for the control, detection, prevention . . . of communicable . . . diseases, including public 
immunization . . . programs.”  22 M.R.S. § 802(1)(D), (3) (“[t]he department shall adopt rules to carry 
out its duties as specified in this chapter”); 18 M.R.S. § 8054(1).   
4 See Opposition to Motion for Preliminary Injunction by MaineGeneral et al. at ECF No. 50-1 for a 
red-lined copy of the Rule.  
5 Only a fraction of Maine’s healthcare facilities – broadly defined – constitute Designated 
Healthcare Facilities.  In fact, there are many healthcare facilities in the State of Maine which do 
not meet this definition.  See Health Care Worker Vaccination FAQS, MAINE.GOV (last updated Oct. 
13, 
2021) 
at 
FAQ 
1, 
https://www.maine.gov/covid19/vaccines/public-faq/health-care-worker-
vaccination (listing the types of healthcare facilities that are covered by and excluded from the Rule). 

 
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91-93); Decl. of Gail Cohen ¶3 (R.A. 97-99); Decl. of July West ¶3 (R.A. 94-96); Decl. 
of Paul Bolin ¶3 (R.A. 100-102).)  As a condition of their licensure, the Provider 
Defendants are required to ensure that employees who are physically present in the 
workplace are fully vaccinated for COVID-19 subject to the medical exemption.  If 
the Provider Defendants do not follow the Rule, they would not be in compliance 
with state law and could face severe consequences, including being enjoined from 
continuing to permit employees to work absent proof of vaccination or exemption, 
civil fines, penalties and loss of licensure.  22 M.R.S. § 803-04.  Stated otherwise, 
Providers Defendants have no discretion with respect to compliance with the Rule.6  
Accordingly, each of the Provider Defendants implemented mandatory COVID-19 
vaccination policies consistent with the Rule and the State’s deadline for 
vaccination. 
ARGUMENT 
I. 
STANDARD OF REVIEW 
Plaintiffs’ request to enjoin a presumptively valid state regulation invokes 
this Court’s authority under the All Writs Act, 28 U.S.C. § 1651(a).  It is well settled 
“that injunctive relief under the All Writs Act is to be used ‘sparingly and only in 
the most critical and exigent of circumstances.’”  Brown v. Gilmore, 533 U.S. 1301, 
122 S.Ct. 1 (2001) (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC., 479 
U.S. 1312, 1313, 107 S.Ct. 682 (1986).)  Injunctive relief is appropriate only where 
                                            
6 This observation is not intended to suggest that the Provider Defendants believe the Rule is in any 
way improper.  Rather, it is simply an observation that whether the Rule is constitutionally sound or 
not, private persons subject to the jurisdiction of the State are bound to comply with state laws 
unless and until they are rescinded, repealed, or otherwise invalidated 

 
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“the legal rights at issue are indisputably clear” and where an injunction is 
“[n]ecessary or appropriate in aid of [this Court’s] jurisdiction.”  Id. (internal 
quotation omitted.); Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 542 
U.S. 1306, 1306, 125 S.Ct. 2 (2004).   
II. 
PLAINTIFFS’ ENTITLEMENT TO RELIEF AGAINST THE 
PROVIDER DEFENDANTS IS FAR FROM INDISPUTABLY 
CLEAR 
Plaintiffs’ constitutional claims are brought against only the State 
Defendants, and Plaintiffs do not assert or develop any argument that the Provider 
Defendants are state actors.7  Plaintiffs’ claims against the Provider Defendants 
arise under Title VII and they rest on the overly simplified and inaccurate premise 
that Title VII requires employers to accommodate employees’ religious beliefs, 
regardless of the effect that the proposed accommodation would have on the 
employer or others.  In fact, courts have employed a two-part framework to evaluate 
whether a failure to accommodate an employee’s religious beliefs amounts to 
unlawful discrimination under Title VII.  First, the plaintiff must make a “prima 
facie case that a bona fide religious [belief or] practice conflicts with an employment 
requirement and was the basis for adverse action.” Sanchez-Rodriguez v. AT&T 
Mobility Puerto Rico, Inc., 673 F.3d 1, 2 (1st Cir. 2012).  If the plaintiff does so, the 
burden moves to the defendants to show that “it offered a reasonable 
                                            
7 The Verified Complaint included a claim of conspiracy under 42 U.S.C. § 1985 (Count V), but 
Plaintiffs have failed to discuss or develop arguments in support of that claim in their Application.  
For the reasons set forth in the opinions of the District Court and First Circuit, this claim is wholly 
unsupported by the record and does not warrant this Court’s consideration.  (See Opinion at 34; 
Order at 37-38.) 

 
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accommodation or that a reasonable accommodation would be an undue burden.”  
Id.  
This two-part framework exists because Title VII does not require employers 
to provide reasonable accommodations for an employee’s religious beliefs where 
doing so would impose an “undue hardship on the conduct of the employer’s 
business.”  42 U.S.C. § 2000e(j).  It has long been the rule that a religious 
accommodation constitutes an undue hardship if it imposes on the employer “more 
than a de minimis cost.”  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 
(1977).   
Courts considering whether employers are required to accommodate 
employees’ religious beliefs in ways that would place them in violation of the law 
have analyzed the question two different ways.  Some have concluded such claims 
fail to state a prima facie case, reasoning that the conflict with the plaintiff’s 
religious beliefs stems from a statute or rule, and not a requirement of the 
employer.  E.g. Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000); Baltgalvis 
v. Newport News Shipbuilding Inc., 132 F.Supp.2d 414, 418 (E.D. Va. 2001) aff’d 15 
F. App’x. 172 (4th Cir. 2001).  Others have concluded that an accommodation that 
places the employer in violation of the law is per se an undue hardship.  Weber v. 
Leaseway Dedicated Logistics, Inc., 166 F.3d 1223 (10th Cir. 1999); Sutton v. 
Providence St. Joseph Medical Center, 192 F.3d 826, 830-31 (9th Cir. 1999).  At least 
one Circuit Court of Appeals has declined to endorse or reject either approach, 
simply concluding that Title VII does not require employers to disregard the law “in 

 
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the name of reasonably accommodating an employee’s religious practices.”  Yeager 
v. FirstEnergy Generation Corp., 777 F.3d 362, 364 (6th Cir. 2015).  “Although they 
have disagreed on the rationale, courts agree that an employer is not liable under 
Title VII when accommodating an employee’s religious beliefs would require the 
employer to violate federal or state law.”  Sutton, 192 F.3d at 830. 
Plaintiffs’ Title VII claims against the Provider Defendants conflate the 
terms “reasonable accommodation” and “exemption.”  The record shows only that 
Plaintiffs requested a single form of accommodation—exemption—which the 
Provider Defendants denied, citing their inability to grant the requested 
accommodation without placing themselves in violation of state law.  Whether the 
undue hardship threshold is de minimis or consistent with the higher standard 
applicable to claims arising under the Americans with Disabilities Act, it cannot 
seriously be questioned that Title VII does not require a healthcare employer to 
provide reasonable accommodations where those accommodations will expose the 
employer to adverse licensing consequences and potentially jeopardize the 
employer’s ability to operate during a pandemic.  The First Circuit therefore 
appropriately held that Plaintiffs did not show a likelihood of success on the merits 
of their Title VII claims and were not entitled to injunctive relief.  (See Opinion at 
33.) 
III. 
CRITICAL AND EXIGENT CIRCUMSTANCES DO NOT EXIST, 
AS PLAINTIFFS HAVE ADEQUATE REMEDIES AT LAW 
SHOULD THEY PREVAIL ON THEIR TITLE VII CLAIMS 
Plaintiffs do not allege that, absent an injunction, they will be required to 
accept the COVID-19 vaccine and thereby violate their sincerely held religious 

 
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beliefs; only that they will likely lose their jobs.  Thus, as both the trial court and 
Court of Appeals observed (Order at 18-19; Opinion at 20-21), their claims are 
dissimilar to those raised in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 
S. Ct. 63, 68 (2020) and other recent decisions of this Court, where the plaintiffs 
complained that governmental regulation prevented them from worship or 
otherwise made it impossible for them to adhere to their sincerely held religious 
beliefs.  Plaintiffs affirmatively plead that their “sincerely held religious beliefs 
compel them to abstain from obtaining or injecting [a COVID-19 vaccine] into their 
body, regardless of the perceived benefit or rationale.”8  (Ver. Compl. ¶68, ECF 
No. 1.) (emphasis supplied.) Hence their ability to adhere to their beliefs is not at 
issue.  The harm they complain of is the loss of employment.   
Moreover, Plaintiffs have not brought any constitutional claims against the 
Provider Defendants, only claims for violation of statutory rights relating to 
discrimination.  Plaintiffs therefore have shown no basis for injunctive relief against 
these private employers to protect their First Amendment rights. 
One of the central purposes behind Congress’ enactment of Title VII is “to 
make persons whole for injuries suffered on account of unlawful employment 
discrimination.”  Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) 
(emphasis added).  Any Plaintiff who can demonstrate a meritorious Title VII claim 
                                            
8 In Paragraph 68 of the Verified Complaint, Plaintiffs allege that they are compelled to abstain 
“regardless of the perceived benefit or rationale.”  (Ver. Compl. ¶ 68, ECF No. 1.)  Given their 
religious beliefs, remaining employed is the only possible rationale Plaintiffs could advance for 
receiving the vaccine.  Paragraph 68 of their Verified Complaint therefore amounts to an 
unambiguous assertion that they do not intend to be vaccinated and therefore expect to be 
terminated.  In other words they have very clearly sworn that if put to the choice between losing 
their jobs and violating their religious beliefs, they will pick the former.  (Id.) 

 
14027925.2 
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will have an adequate remedy at law in the form of back pay, front pay or 
reinstatement, compensatory and punitive damages, and attorneys’ fees—i.e. post-
trial money damages and equitable relief.  42 U.S.C. § 1981a.  Thus, each and every 
plausible harm Plaintiffs might experience as a result of alleged discrimination by 
the Provider Defendants can be remedied through post-trial relief, after Plaintiffs 
have exhausted their administrative remedies and thereby taken advantage of Title 
VII’s elaborate dispute-resolution scheme, the purpose of which is to resolve 
discrimination claims before they ever reach litigation.  The administrative process 
is itself a critical component of Title VII’s remedial scheme, 42 U.S.C. § 2000e-
5(f)(1)), of which the trial court correctly concluded Plaintiffs have failed to avail 
themselves.  (Order at 36-37.) 
If and when the Plaintiffs lose their employment, it will be because they 
allowed the deadline for them to obtain the mandatory healthcare worker 
COVID-19 vaccine to pass.  That they will have done so for religious reasons does 
not establish irreparable harm necessary for injunctive relief, let alone transform 
their claims into something “critical and exigent” that would justify the Court’s 
departure from well-settled precedent.  On this record, the Court can conclude only 
that, if the Plaintiffs are or have been terminated, their damages will be the same 
as in virtually every employment discrimination case heard by the courts: lost 
wages and benefits, other economic harm, and non-economic harm such as 
emotional distress.  The broad remedies available under Title VII are such that, if 
Plaintiffs prevail, they will be made whole.   

 
14027925.2 
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CONCLUSION 
Plaintiffs are asking this Court to enjoin private employers from terminating 
their employment based on Title VII claims, before any court has adjudicated the 
merits of those claims.  Regardless of the fate of the Rule, if the Provider 
Defendants terminate Plaintiffs’ employment, Plaintiffs may pursue their Title VII 
claims on the merits.  Should they prevail, they will be made whole.  Should they 
lose, they may appeal.  Under the circumstances, injunctive relief is neither 
necessary nor appropriate to preserve or aid this Court’s jurisdiction, and Plaintiffs’ 
Application should therefore be denied. 

 
14027925.2 
12 
Dated:  October 25, 2021 
/s/ Nolan L. Reichl 
 
 
 
 
Nolan L. Reichl - Counsel of Record  
   nreichl@pierceatwood.com 
James R. Erwin 
   jerwin@pierceatwood.com 
Katharine I Rand 
   krand@pierceatwood.com 
Pierce Atwood LLP 
254 Commercial Street 
Portland, ME  04101 
207-791-1100 
 
Ryan P. Dumais 
   rdumais@eatonpeabody.com 
Katherine Porter 
  kporter@eatonpeabody.com 
Eaton Peabody 
100 Middle Street 
P.O. Box 15235 
Portland, Maine 04112-5235 
207-992-4820 
 
Attorneys for MaineHealth; Genesis 
Healthcare of Maine, LLC; Genesis 
Healthcare, LLC; Northern Light Health 
Foundation; MaineGeneral Health

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88717168efcd7daf9592781ac87d7cf8566bf330da41f063860c91b2499284da

Our copy

21A90_007_Oct_25_2021_Main_Document_20211025111923898_2021-10-25_Provider_Respondents_Opposition_to_Emergency_Applic.PDF

Original

www.supremecourt.gov