Plaintiffs’ Memorandum of Law in Support of Their Motion

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Plaintiffs' Memorandum of Law in Support of Their Motion for Preliminary Injunction, Document 3 filed 10/17/21 in Together Employees, by Individual Representatives, v. Mass General Brigham Incorporated, Case 1:21-cv-11686, in the U.S. District Court for the District of Massachusetts. The memorandum states that the case is not a challenge to the defendant's vaccination policy but concerns religious and disability accommodations, with claims under Title VII and the Americans with Disabilities Act (ADA) for discrimination and retaliation. Its facts section states that on June 24, 2021, the defendant announced that all employees would be required to be vaccinated against COVID-19, with medical and religious exemptions available. It lists Introduction, Facts, Legal Standard, and Argument headings.

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
TOGETHER EMPLOYEES, by
Individual Representatives,
ROBERTA LANCIONE
)
JOYCE MILLER, MARIA DIFRONZO,
)
MICHAEL SACCOCCIO,
)
ELIZABETH BIGGER,
)
NATASHA DICICCO,
)
NICHOLAS ARNO and
)
CIVIL ACTION NO.
RUBEN ALMEIDA,
)
Plaintiffs

)
)
v.
)
)
MASS GENERAL BRIGHAM
)
INCORPORATED
)
Defendant
)
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION
FOR PRELIMINARY INJUNCTION
Attorneys for the Plaintiffs,
Ryan P. McLane, Esq. (BBO: 697464)
Lauren Bradford, Esq. (BBO: 700084)
McLane & McLane, LLC
269 South Westfield Street
Feeding Hills, MA 01030
Ph. (413) 789-7771
Fax (413) 789-7731
ryan@mclanelaw.com
lauren@mclanelaw.com

ORAL ARGUMENT REQUESTED
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I.
INTRODUCTION
First, what this case is not: this case is not a challenge to the defendant’s
vaccination policy. Every single plaintiff stands ready, willing, and able to take
safety precautions in the workplace to prevent the spread of COVID-19 and protect
those that they work with and serve. (Compl., ECF 1, ¶ 60 and ¶ 71, pp. 13, 15). Not
only are they willing, but plaintiffs also have and do take safety precautions to
prevent the spread of the disease. The vast majority of these plaintiffs heroically
fought on the front lines of the pandemic last year, working long hours under
extremely stressful conditions to save lives and ensure that people received quality
medical care. Their sincerity and commitment to battling COVID-19 should be
without question. Each plaintiff has either a religious belief or a disability (a few
have both) that conflicts with one safety policy: vaccination. These conflicts are
protected under federal law. Thus, this case is not a challenge to the lawfulness of
the policy imposed by the defendant, but rather an attempt to prevent
discrimination and retaliation based on religion and disability.
What this case is: This case is about the defendant’s decision to ignore federal
law and instead apply their own set of rules when it comes to religious and
disability accommodations, developing their own system-wide “position” around
granting these accommodations instead of following Title VII and the Americans
with Disabilities Act (“ADA”). (Compl., ECF 1, ¶ 27, p. 6). Defendant wrongfully
denied all of the plaintiffs’ accommodation requests by creating a system that
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hindered its employees’ ability to communicate their beliefs and disabilities,
restricted their access to those reviewing requests for accommodations and by total
failure to engage in an interactive process1. Id. Over two hundred plaintiffs form
the unincorporated association “Employees Together,” although far more are likely
affected by the defendant’s system of discrimination and retaliation, as over 5,000
employees and “persons of interest” remain noncompliant with defendant’s
vaccination policy:

Plaintiffs brought claims against the defendant for disability discrimination
under the ADA, religious discrimination under Title VII and retaliation as to both,
due to the defendant’s clear bad faith discrimination which includes but is not
limited to: sending emails to supervisors to attempt to convince employees whose

1 Defendant is likely to couch its “exemption” process as an interactive process, but it was nothing of
the sort. The interactive process necessarily includes two-way communication, which in substance
there was not. Employees simply filled out an online form designed to prevent them from providing
sufficient information and an anonymous individual would email them stating that their
“exemption” was either accepted or denied, encouraging them to get vaccinated. Occasionally,
requests for more information were emailed, with no guarantee of review. No meaningful
conversation occurred between defendant’s committee and the plaintiffs.
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religious exemptions were denied to take a vaccine (after these same employees just
asserted their religious opposition to doing so), discouraging doctors to provide
support for employees’ medical exemptions, denying accommodations based on lack
of information while at the same time preventing employees from providing
supporting documents to their accommodation requests, failing to engage in any
interactive process and by failing to disclose who was on the “exemption committee”
(or what qualifications, if any, these individuals had to determine the sincerity of
someone’s religious beliefs or disabilities).
II.
FACTS
On June 24, 2021, defendant announced that all employees would be required to
be vaccinated against COVID-19. (Comp., ECF 1, Ex. A). The announcement
provided that medical and religious “exemptions” would be available, along with an
exemption for those who are or intend to become pregnant. (Comp., ECF 1, ¶ 20, p.
4). Employees seeking “exemption” had to fill out one of two forms: a medical
request form, which was a word document (Comp., ECF 1, Ex. B), or a religious
exemption form, which was an online form (Comp., ECF 1, Ex. C). An email address
was provided at the bottom of the medical form, but no email address was provided
on the religious form. The medical form was to be completed by a physician. The
religious exemption form contained a small text box that employees were supposed
to utilize to communicate their sincerely held religious beliefs. Although there was
no specified character limit, approximately eight words are visible within the text
box. There was no option, on either form, for employees to provide any supporting
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documentation providing the basis for and evidence in support of their need for
accommodation2. With respect to medical exemptions, defendant instructed its
network providers not to draft letters in support of employees’ medical
accommodations.
After preventing its employees from effectively communicating their needs for
accommodation, defendant then, via their anonymous “MGB Vaccination
Committee,” denied plaintiffs their accommodations. Additionally, they would not
communicate with plaintiffs nor discuss their decisions, the criteria for which were
never disclosed3 (plaintiff DiCicco received an email stating “[w]e will not be
providing additional information related to denials or approvals, other than the
request was reviewed and it was either approved or denied”). (Comp., ECF 1, Ex.
H). Instead of interacting with plaintiffs, defendant sent an email to its supervisors
providing talking points that these supervisors should use with employees who had
their exemptions denied. (Comp., ECF 1, Ex. G). Thus, instead of engaging with and
advocating for their subordinate employees, supervisors were to push a narrative on
them. This included encouraging them to get vaccinated, despite having already
asserted that it would violate their religious conscience or cause them physical
harm. Additionally, supervisors were encouraged to push the narrative that a

2 This option was provided for some employees after they were already denied accommodation (with
no guarantee of review). This goal is obvious, as defendant provided a link to vaccination sites in its
denial email, an effort that likely resulted in many individuals forsaking their religious beliefs after
being denied.
3 Initial denial emails stated boilerplate language that an individual failed to state a religious belief
or misconstrued employees’ beliefs regarding the role of aborted fetal tissue in the production,
manufacturing and testing of the vaccines. However, there was no legitimate discussion on the
matter.
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thorough review took place, when in fact the review was not thorough. More telling,
supervisors were to promote the narrative that the committee reviewed the
requests, not in conformity with the law, but based upon defendant’s “position
around granting exceptions.” Id.
No accommodations were provided to plaintiffs, nor was there any meaningful
form of an interactive process. Defendant then informed plaintiffs that they would
be placed on unpaid leave on October 15, 2021, if they did not forsake their religious
beliefs and put their health at risk by taking a COVID-19 vaccine. After unpaid
leave, the point of which was to allow plaintiffs to get vaccinated, they would be
terminated on November 5, 2021.
III.
LEGAL STANDARD
A. Preliminary Injunctive Relief
The First Circuit utilizes a four-part framework to determine whether to
grant preliminary injunctive relief: “(1) the likelihood of success on the merits; (2)
the potential for irreparable harm if the injunction is denied; (3) the balance of
relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted
with the hardship to the movant if no injunction issues; and (4) the effect (if any) of
the court’s ruling on the public interest.” Ross-Simons of Warwick, Inc. v. Baccarat,
Inc., 102 F.3d 12, 15 (1st Cir. 1996).
B. Exhaustion of Administrative Remedies
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Traditionally, those with discrimination complaints under 42 U.S.C. 2000e-5
must exhaust their administrative remedies with the EEOC4. The First Circuit, in
Bailey v. Delta Airlines, Inc., 722 F.2d 942 (1983) has held that there is exception
for those seeking preliminary injunctive relief, and that plaintiffs who have not
exhausted remedies may seek recourse in the Federal District Courts, stating “[w]e
is not prepared to adopt a rule categorically barring all suits for preliminary relief
pending administrative disposition. In our view, there is considerable force to the
argument that the statute does not require so much.” See also Less vs. Berkshire
Hous. Ser., D. Mass., No. 00-30033-MAP (Sept. 8, 2000), (“[T]rial courts should
maintain their “customary equitable authority to grant preliminary relief in
appropriate cases,” even though that power arises outside the statutory scheme.”).
Other district and circuit courts agree, most recently in the District Court for the
Northern District of Texas, Sambrano et al., v. United Airlines, Inc., N.D. Tex, 4:21-
cv-1074 (2021), a case very similar to the one before us. The Court in Sambrano has
issued a Temporary Restraining Order, enjoining United Airlines from placing its
employees on unpaid leave after denying their requests for religious and disability
accommodation. Plaintiffs in this matter are awaiting their Notices of Right to Sue
from the EEOC, however due to the volume, obvious backlog at the EEOC and the
fact that many plaintiffs are already receiving right to sue letters, this action is
appropriately brought in this Court.

4 Currently, the EEOC has already issued right to sue letters for many plaintiffs, stating that it is
unlikely that the agency can complete the administrative processing within 180 days.
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IV.
ARGUMENT
A. Plaintiffs are Likely to Succeed on Their Religious
Discrimination Claims

In order to establish a prima facie case of religious discrimination based on a
failure to accommodate, the plaintiff must show that “(1) a bona fide religious
practice conflicts with an employment requirement, (2) he or she brought the
practice to the [defendant’s] attention, and (3) the religious practice was the basis
for the adverse employment decision.” E.E.O.C. v. Union Independiente de la
Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir.
2002). A “bona fide religious practice” or belief is one that is “religious and sincerely
held.” Id. Title VII’s definition of religions includes “all aspects of religious
observance and practice, as well as belief.” Id, citing 42 U.S.C. § 2000e(j).  Further,
29 C.F.R. § 1605.1 states that religious practices include “moral or ethical beliefs as
to what is right and wrong which are sincerely held with the strength of traditional
religious views.” § 2000e(j) “leaves little room for a party to challenge the religious
nature of an employee’s professed beliefs.” Union Independiente. Religious beliefs
are not required to be “acceptable, logical, consistent, or comprehensible to others,”
and that interfaith differences as to what is scripturally acceptable are “not
uncommon among followers of a particular creed, and the judicial process is
singularly ill equipped to resolve such differences…” And this may be (plaintiffs
were never informed of the reason) one possible explanation for defendant’s denial
of plaintiffs’ religious accommodation requests: as New York Governor Kathy
Hochul now famously said, “[t]here’s not a legitimate reason for religious
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exemptions because the leaders of all the organized religions have said there’s no
legitimate reason5.” Two weeks later, this legal position was defeated. Dr. A v.
Kathy Hochul, N.D. NY., No. 1009 (October 12, 2021). There is simply no way
attribute the beliefs and statements of “leaders of all the organized religions,” or
even some of them, to an individual’s sincerely held and personal religious beliefs.
The religious discrimination plaintiffs each asserted a bona fide religious
belief or practice, notified the defendant, and have since faced adverse action as a
result of their inability to forsake their religious conscience by adhering to
defendant’s policy, including being notified or placed on unpaid leave6 and are
subject to termination on November 5, 2021. None of the religious exemption
plaintiffs were informed as to why their accommodations were denied, nor was
there any meaningful interactive process. “Bilateral cooperation is appropriate in
the search for an acceptable reconciliation of the needs of the employee’s religion
and the exigencies of the employer’s business.” Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60, 69 (1986)

1. Defendant Failed to Accommodate Plaintiffs and Instead took
Adverse Action Against Plaintiffs Without Even Engaging in the
Interactive Process
Plaintiffs seeking religious accommodation sent their requests via an online
form, containing a small text box that employees were supposed to utilize to

5 https://www.nny360.com/news/publicservicenews/hochul-vaccine-mandate-for-health-staff-self-
defense/article_235db479-aeb3-58c4-917c-
fdfab1a24a75.html?fbclid=IwAR1GKWzX4IfW3NP2JFDnd5pcJxIG1upVrDcKwB8IirKmBJI1lPpdti8
OEA4
6 The date in which employees were to be placed on unpaid leave changed from October 15, 2021 to
October 20, 2021, although some employees were taken off schedule, etc.
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communicate their sincerely held religious beliefs. This did not provide a character
or word limit, and approximately eight words are visible within the text box. There
was no availability for employees to provide any supporting documentation such as
clergy letters or personal statements. Plaintiffs were denied via email, which
provided a link to find out where they could get vaccinated. Some plaintiffs were
told that they could provide further information (Comp., ECF 1, Exhibit P) and
many either had their stated beliefs mischaracterized (Exhibit A) or were granted
an accommodation only to have it taken away (Exhibit B). Plaintiff Almeida had
been granted a religious accommodation for the flu vaccine for a number of years,
only to be denied a religious exemption for the COVID-19 vaccine (Comp., ECF 1,
Exhibit R). He was told this accommodation determination was based on a “new
process.” There was no meaningful dialogue between any agents of the defendant
and any of the plaintiffs, particularly those seeking religious accommodation.
“Bilateral cooperation is appropriate in the search for an acceptable reconciliation of
the needs of the employee’s religion and the exigencies of the employer’s business.”
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986). Defendant did not offer
any reasonable accommodations, nor did they undergo any “bilateral cooperation” or
seek to find any reasonable accommodations, for those plaintiffs seeking religious
accommodations.
2. Defendant Did Not Assert, Nor Would it Face, Undue Hardship.
“Once an employee has made out a prima facie case of discrimination, the
employer must show that it offered a reasonable accommodation or that a
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reasonable accommodation would be an undue burden.” Sanchez-Rodriguez v. AT &
T Mobility Puerto Rico, Inc., 673 F.3d 1, 8 (1st Cir. 2012). Defendant never made a
showing, nor will it be able to show, that it would face undue hardship by
accommodating plaintiffs’ religious beliefs. First, defendant never offered an
accommodation to plaintiffs. Second, 42 U.S.C. § 2000e-2(a)(1) states that it is
unlawful for an employer to, “fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin.” § 2000e(j) provides the provision “… unless
an employer demonstrates that he is unable to reasonably accommodate to an
employee’s or prospective employee’s religious observance or practice without undue
hardship on the conduct of the employer’s business.”
“[T]he search for a reasonable accommodation goes both ways.” Cloutier v.
Costco Wholesale Corp., 390 F.3d 126, 131 (1st Cir. 2004). Every plaintiff, since
submitting their accommodation request, has been willing to abide by any
reasonable accommodation that would have little impact on defendant’s business
operations and that would ensure the safety of others. Further, in Cloutier, the
Court found that Costco had offered a reasonable accommodation, and that it was
the plaintiffs’ requested accommodation (which was no accommodation at all, but
instead a complete violation of the policy) that caused the breakdown. Costco’s
offering of a religious accommodation satisfied their duty, and thus, plaintiff’s
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refusal of Costco’s offered accommodation would therefore cause a hardship on
Costco.
Here, defendant did not offer any accommodations and never demonstrated
hardship, or any other reason for denial of the plaintiffs’ religious accommodation
requests. In fact, defendant did accommodate employees, demonstrating the lack of
hardship it would face in accommodating plaintiffs. Plaintiffs are therefore likely to
prevail in their meeting all of the elements of their religious discrimination claims.
a. Defendant Would not be Financially Burdened (and Would
Likely Benefit Financially) by Accommodating Plaintiffs.
Defendant would not face a financial hardship of more than a “de minimis”
cost in accommodating plaintiffs’ religious beliefs. Any number of accommodations
can be made to prevent the spread of COVID-19, including testing, mask wearing,
hand washing, screening, face shields, and distancing, to name just a few.
Defendant is also “swimming in money” (Comp., ECF 1, Exhibit P), just
brought in $4.1 billion in revenues last quarter alone and already performs testing
at its facilities. Further, defendant has no policy in place stating that it will not
accept patients who are unvaccinated. Instead, defendant implements safety
policies that include a “Safe Care Commitment7” as well as patient and visitor
policies8 to help prevent the spread of COVID-19, to include testing patients who
are admitted to the hospitals, screening employees daily, ensuring that everyone,
including employees, wears a mask, washes their hands frequently, and stays home

7 https://www.massgeneralbrigham.org/covid19/safe-care-commitment
8 https://www.massgeneralbrigham.org/patient-information/preparing-office-visit
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if they display “any symptoms of a possible respiratory illness” until they are better.
Additionally, none of the plaintiffs currently has COVID-19, nor have they violated
the Safe Care Commitment policies and put themselves and others at risk in the
past, nor do they plan to in the future. Rather, they are willing to abide by any
reasonable accommodations, including the aforementioned.
Additionally, defendant would likely benefit financially from these
accommodations, as they are already facing staffing crises at their facilities. Many
of the plaintiffs are still receiving emails requesting that employees work overtime
shifts at “crisis rates” being paid significant bonuses:

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Ridding themselves of over two hundred employees9 and having to pay crisis
rates and overtime to the employees that have remained would likely cause closures
of certain units and loss of funds, along with a necessity to pay the current
employees more for overtime and crisis pay.
3. Defendant Did Not Assert, Nor Would Accommodating Plaintiffs
Cause, an Issue to Safety.
Courts are “somewhat skeptical of hypothetical hardships that an employer
thinks might be caused by an accommodation that never has been put into
practice.” Cloutier, citing Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th
Cir.1975). “The employer is on stronger ground when he has attempted various
methods of accommodation and can point to hardships that actually resulted.”
Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th Cir. 1989). Defendant cannot
point to any hardships, because it never attempted any methods of accommodation
with the plaintiffs.
Further, any hypothetical risk that plaintiffs pose, which is currently none,
as none of them are COVID positive and entering defendants’ places of work, is
outweighed by the risk to defendant’s patients if defendant is forced to lose
significant numbers of its staff. Massachusetts hospitals are no stranger to patient
care issues resulting from staffing shortages10. This problem is not limited to
Massachusetts and is causing many hospitals to face significant crises11. It should

9 https://www.bostonglobe.com/2021/10/06/metro/mass-hospitals-prepare-fire-hundreds-employees-
who-refuse-covid-vaccine/
10 https://www.nbcboston.com/news/local/st-vincent-nurses-continue-to-demand-safe-staffing-levels-
as-strike-enters-day-202/2501138/
11 https://bangordailynews.com/2021/10/12/news/gop-wants-to-ease-janet-mills-vaccine-mandate-
after-hospital-reduces-admissions-more/
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also be noted that defendant allows unvaccinated visitors into its hospitals. With
Mass General Hospital alone seeing 50,000 patients per year12, allowing an
accommodation for 229 employees across the Commonwealth of Massachusetts
would not be unreasonable.
B. Plaintiffs are Likely to Succeed on Their Disability
Discrimination Claims.
Discrimination against a qualified individual includes but is not limited to
“not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered
entity. 42 U.S.C. § 12112(b)(5)(A). To prevail on a disability discrimination claim, a
plaintiff must show by a preponderance of the evidence that he (1) has a disability
within the meaning of the ADA; (2) is qualified to perform the essential functions of
the job, with or without reasonable accommodations; and (3) was subject to an
adverse employment action based in whole or part on his disability. Ramos-
Echevarria v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011). Each disability plaintiff
has shown that they have a disability that impairs a major life function, at the very
least, working. Additionally, they are all currently employed and remain qualified
to perform the essential functions of their jobs. Lastly, they have all been alerted

12 https://www.massgeneral.org/news/press-release/Massachusetts-general-hospital-marks-200-
years-of-patient-care
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that they are or will be placed on unpaid leave until they get vaccinated, followed by
termination on November 5, 2021.
A disability discrimination case can be proven via direct evidence or via the
“McDonnell Douglas” burden shifting method, offering evidence sufficient to
establish that a plaintiff “(i) has a disability within the meaning of the [ADA]; (ii) is
qualified to perform the essential functions of the job, with or without reasonable
accommodations; (iii) was subject to an adverse employment action by a company
subject to the [ADA]; (iv) was replaced by a non-disabled person or was treated less
favorably than non-disabled employees; and (v) suffered damages as a result.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A “disability” under the
ADA is defined as “(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual, (B) a record of such an
impairment, or (C) being regarded as having such an impairment.” 42 U.S.C. §
12102(1)(A)-(C). Determining whether an impairment substantially limits one or
more major life activities involves a three-step analysis: (1) determine whether the
alleged disability is a physical or mental impairment, (2) identify the life activities
upon which plaintiff relies, and (3) determine whether the impairment substantially
limited one or more of the activities found to amount to major life activities.
Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 30 (1st Cir. 2000).
Plaintiffs seeking disability accommodations have all provided
documentation supporting their need for an accommodation, including doctor letters
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evidencing that the taking of vaccines would significantly limit their major life
activities.
1. Defendant Did Not and Cannot Show Undue Hardship or That
Plaintiffs Pose a Direct Threat.
“At its core, Title I of the ADA is about protecting the disabled from discriminatory
employment action based on stereotypes and fear.” E.E.O.C. v. Amego, Inc., 110
F.3d 135, 142 (1st Cir. 1997). Defendant has not made any showing of undue
hardship or direct threat in its failure to provide reasonable accommodations, nor
has it made any good faith efforts to accommodate the plaintiffs. Brown v. F.L.
Roberts & Co., 419 F.Supp.2d 7, 17 (D.Mass.2006), requiring proof of undue
hardship after plaintiff establishes a prima facie case.
Undue Hardship is defined “an action requiring significant difficulty or
expense, when considered in light” of several factors, namely: (i) the nature and cost
of the accommodation needed under this chapter; (ii) the overall financial resources
of the facility or facilities involved in the provision of the reasonable
accommodation; the number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such accommodation upon the
operation of the facility; (iii) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to the number of its
employees; the number, type, and location of its facilities; and (iv) the type of
operation or operations of the covered entity, including the composition, structure,
and functions of the workforce of such entity; the geographic separateness,
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administrative, or fiscal relationship of the facility or facilities in question to the
covered entity. 42 U.S.C. § 12111(10). The First Circuit, in Amego¸ supra, cited the
Seventh Circuit’s opinion in Vande Zande v. Wisconsin Dep’t of Admin, 44 F.3d 538,
(7th Cir. 1995), stating that an employer may prove undue hardship by establishing
that the costs of the proposed accommodation are excessive in relation either to its
benefits or to the employer’s financial health or survival. Id.
First, and most importantly, defendant has provided accommodations to
certain employees. While this does not provide any validity to defendant’s
evaluation process (certain plaintiffs were denied accommodations when their
requests were nearly identical to others who were provided with accommodations),
it does underscore that 1) it is not an undue hardship for defendant to provide
disability accommodations, and 2) defendant does not consider unvaccinated
employees to be a direct threat.
Factually, it would be false for defendant to claim that it would be an undue
hardship to accommodate plaintiffs, or that they are a direct threat, for many of the
reasons outlined in the hardship analysis of the religious discrimination plaintiffs.
In a nutshell: there is already a testing system in place (and it would not pose an
undue hardship to test employees periodically), defendant’s resources show that any
new accommodations would be de minimis, and that the plaintiffs already abide by
safety measures that prevent the spread of COVID-19.
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The First Circuit, in Amego, analyzed the “direct threat” analysis with
respect to the transmission of diseases, holding that, in Title I ADA cases where a
direct threat defense under 42 U.S.C. § 12113(b) is implicated, the plaintiff must
demonstrate that he or she can perform the essential functions of the job. Id.
Further, where essential job functions implicate the safety of others, plaintiff must
demonstrate that “she can perform those functions in a way that does not endanger
others.” Again, defendant failed to state its reasons for denying reasonable
disability accommodations, thus the only two defenses that it has are undue
hardship and direct threat. Amego’s direct threat analysis draws from a Supreme
Court Case, School Bd. Of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987). In
Arline, the Justice Brennan stated:
The fact that some persons who have contagious diseases may pose a serious
health threat to others under certain circumstances does not justify excluding
from the coverage of the Act all persons with actual or perceived contagious
diseases. Such exclusion would mean that those accused of being contagious
would never have the opportunity to have their condition evaluated in light of
medical evidence and a determination made as to whether they were “otherwise
qualified.” Rather, they would be vulnerable to discrimination on the basis of
mythology—precisely the type of injury Congress sought to prevent. We conclude
that the fact that a person with a record of a physical impairment is also
contagious does not suffice to remove that person from coverage under § 504. Id.
Thus, defendant is not entitled to refuse reasonable accommodations to
the plaintiffs for the several reasons. First, plaintiffs do not have an
infectious disease. Any fear of direct threat would be that plaintiffs could
catch the disease and spread it to others. Second, plaintiffs cannot be
perceived to have the disease due only to their vaccination status, especially
because they are screened daily. Third, each plaintiff already adheres to
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several safety precautions and is willing to abide by any other reasonable
accommodations, such as periodic testing, further screening, etc. Therefore,
defendant cannot show undue hardship or a direct threat if it were to provide
reasonable accommodations to the plaintiffs.
Lastly, defendant failed to participate in any interactive process. There
was no meaningful communication with disability discrimination plaintiffs at
all. “Once a qualified individual with a disability has requested provision of a
reasonable accommodation, the employer must make a reasonable effort to
determine the appropriate accommodation ... through a flexible, interactive
process that involves both the employer and the qualified individual with a
disability.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002),
citing 29 C.F.R. § 1630. “It is the employee’s initial request for an
accommodation which triggers the employer’s obligation to participate in the
interactive process of determining one.” Taylor v. Principal Fin. Group, Inc.
93 F.3d 155 (5th Cir. 1996). This simply did not occur between defendant and
disability discrimination plaintiffs.
C. Plaintiffs are Likely to Succeed on their Retaliation Claims
To establish a prima facie case of retaliation, an employee must show that:
“(1) he engaged in protected conduct under Title VII; (2) he experienced an adverse
employment action; and (3) a causal connection exists between the protected
conduct and the adverse employment action.” Sanchez-Rodriguez v. AT & T
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21

Mobility Puerto Rico, Inc., 673 F.3d 1, 8 (1st Cir. 2012). Once a prima facie case of
retaliation is established, the defendant bears the burden of demonstrating that
there was a non-discriminatory reason for the adverse employment action.
Here, plaintiffs engaged in the protected activity of requesting religious and
disability accommodations and their failure to abide by perceived EEOC violations.
Defendant’s denial of their accommodations, without any form of explanation,
refusal to offer accommodations, non-disclosure of the committee members,
instructions to physicians not to provide documentation for disability
accommodation requests, provision of narrative talking points to supervisors and
prevention of religious accommodation requests with any substantive
documentation, all within the immediate timeframe of submission of
accommodation requests and denial are all adverse employment actions. Plaintiffs
submission of these accommodation requests were met with a process designed to
prevent them from receiving accommodations, and not to grant the
accommodations.
D. Plaintiffs Will Suffer Irreparable Harm
The imminent and irreparable harm that plaintiffs will suffer as a result of
the adverse action being taken against them is more than simply financial.
Plaintiffs are forced with the “impossible choice” to forsake their religious
convictions, or, in the case of the disability discrimination plaintiffs, potentially put
themselves in danger of physical harm or adhere to defendant’s policy. See On Fire
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22

Christian Center, Inc. v. Fischer, 453 F.Supp.3d. 901, 914 (W.D. KY, 2020), referring
to one’s choice of having to violate their religious beliefs or face enforcement action
as one that is impossible to make. It isn’t much of a choice, and it should not be
taken lightly. “The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury,” Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S.Ct. 63 (2020). While Roman Catholic Diocese involved
state action restricting worship, the underlying principle that this country values
the ability to practice one’s religion is a principle that is still applicable here.
Plaintiffs being forced to choose whether they want to abide by their sincere
religious beliefs, especially after being wrongfully denied an accommodation, or
losing their employment, including health insurance and, in the case of some
plaintiffs, the sole means of providing for themselves and their families, showing
that more than simply money damages are at stake in this matter. There are
several recent cases, similar to the one at hand, where courts have granted
preliminary injunctive relief, finding irreparable harm in the face of an identical
decision: See Sambrano and Dr. A, supra, along with Dr. A’s related case, Does 1-6
v. Hochul, 2021 WL 4172915 (E.D. NY. September 14, 2021), Magliulo v. Edward
Via College of Osteopathic Medicine, No. 3:21-CV-2304, 2021 WL 36799227 (W.D.
La. Aug. 17, 2021), granting TRO, for failure to provide religious exemptions and
that “threat to religious freedom was imminent,” and Dahl v. Bd. of Trustees of W.
Mich. Univ., No. 1:21-cv-757, 2021 WL 3891620, (W.D. Mich. Aug. 31, 2021),
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23

granted TRO enjoining school from preventing plaintiffs from engaging in sports
after having been denied religious exemption due to claimed hardship.
“If the plaintiff suffers a substantial injury that is not accurately measurable
or adequately compensable by money damages, irreparable harm is a natural
sequel.” Ross-Simons of Warwick, Inc., supra. Additionally, this would not likely be
a short-term loss of income. Most Massachusetts Hospitals have policies in place
similar to that of the defendant13. Attempting to find an accommodation as a new
applicant will undoubtedly prove difficult after having been terminated for failure
to comply with defendant’s policy. “Many reasonable employees would find a month
without a paycheck to be a serious hardship,” and a “reasonable employee facing the
choice between retaining her job (and paycheck) and filing a discrimination
complaint might well choose the former.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 72–73, (2006).
Burlington also described the harms of emotional distress on those in these
situations. At least two of the plaintiffs are currently treating for behavioral
therapy and on leave, not because defendant put them on leave, but because of the
emotional toll that this impossible decision has taken on them. (Comp., ECF 1,
Exhibits M, N)

13 https://www.bostonglobe.com/2021/07/29/business/most-massachusetts-hospitals-will-mandate-
covid-vaccination-their-workers/
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24

Therefore, the irreparable harm that the plaintiffs are facing is far more than
just an issue of backpay and are very real and very imminent. Granting preliminary
injunctive relief would ensure that the plaintiffs do not face the aforementioned
imminent harms.
E. The Balance of Harms Clearly Favors the Plaintiffs, as
Defendants Will Suffer Absolutely No Harm and Would Likely
Benefit.
The balance of harms favors the plaintiffs. Defendant will suffer no harm and
would benefit from the continued employment of dedicated and skilled employees,
avoiding further staffing crises, avoiding patient care crises and likely avoiding the
financial costs of having to pay significant bonuses and overtime to the few staff
that it would have left after terminating plaintiffs.
Any perceived harm does not currently exist, even with respect to COVID-19.
Undoubtedly, the vaccination policy is in place to curb the spread of the virus. There
has been no indication that plaintiffs are spreading the virus, nor any assertion, in
general, that the hospital staff as a whole have been doing so. Defendant
necessarily treats unvaccinated patients and takes numerous safety precautions to
protect both employees and patients alike, from getting the virus. Here, plaintiffs
are suggesting that they be able to take additional precautions (save only
vaccination) and there is no evidence to suggest that, if the injunction were allowed,
that the plaintiffs, who make up less than 1% of defendant’s employees, would
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25

cause any harm, financially, operationally, or to the safety of others14. There exists
no harm now and there is no evidence that harm will come if preliminary injunctive
relief is granted.
1. Defendant Will Benefit from Retaining Skilled and Dedicated
Employees.
Unless defendant is denying accommodations and effectuating termination of
these employees because it is looking to reduce its workforce (which would further
evidence discrimination and retaliation), it will be losing over two hundred skilled,
trained, and dedicated employees. That in and of itself if is a harm, not to the
plaintiffs, but to the defendant. Defendant will have to hire new employees to fill
the void left by the plaintiffs or continue shelling out large bonuses for other
employees to cover the work that plaintiffs were doing.
Defendant will therefore benefit from having the plaintiffs continue their
dedicated work for Mass General Brigham. Unless the real motive was to terminate
workers in an effort to save money or use the religious and disability
accommodation denials as a pretext for a different reason to effectuate termination,
both of which would be unlawful, it should be assumed that defendant would
otherwise want to retain the plaintiffs as employees, and would benefit from
keeping them employed, furthering defendant’s mission.
F. Public Policy Favors the Plaintiffs.

14 An additional safety net is that 93% of defendant’s employees are already vaccinated, lessening
any perceived future risk that plaintiffs could pose.
https://www.bizjournals.com/boston/news/2021/09/30/as-vaccination-deadlines-loom-mass-hospitals-
bra.html
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26

The public has an incredibly strong interest in protecting the ability to freely
practice one’s religion, “even in a pandemic.” Roman Catholic Diocese. See also,
Sambrano, Dr. A and Harvest Rock Church v. Newsom, 141 S.Ct. 889 (2020).
Further, the public has an interest in receiving medical care. The incredibly strong
interest in battling COVID-19 (which is not in dispute) will be made more difficult
to the public if hospitals and medical facilities reduce their staff, which will happen
here. With already critical staffing levels, patient care, even despite COVID-19,
patient care will take a significant downturn with less healthcare workers. And, for
the reasons listed above, failing to grant this preliminary injunction will not
prevent the public mission of battling COVID-19. By keeping more frontline
workers in the fight, the public’s interest will be furthered, not hindered. Thus,
granting this preliminary injunction will favor the public.

V.
CONCLUSION
Plaintiffs are seeking injunctive relief enjoining the defendant from taking
adverse action against them and enjoining the defendant from enforcement of the
vaccination policy against the plaintiffs until either they receive their
accommodations, the EEOC takes up and completes an investigation, or a decision
on the merits is reached. The plaintiffs have demonstrated a strong likelihood of
success on the merits and significant, imminent and irreparable harm, compared to
the benefit that defendant and the public would receive from the issuance of a
preliminary injunction.

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27

Plaintiffs, by their attorneys,

   /s/ Ryan P. McLane

Ryan P. McLane, Esq. (BBO: 697464)

Lauren Bradford, Esq. (BBO: 700084)
McLane & McLane, LLC

269 South Westfield Street

Feeding Hills, MA 01030

Ph. (413) 789-7771

Fax (413) 789-7731

ryan@mclanelaw.com

lauren@mclanelaw.com

CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2021, I caused the foregoing to be
electronically filed through the Court’s ECF system. I further certify that I will
cause a true and correct copy of the foregoing, along with the Summons and Verified
Complaint (ECF 1), to be served by process server on the defendant.

/s/ Ryan P. McLane

Attorney for Plaintiffs
Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 27 of 35

EXHIBIT A

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Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 29 of 35

Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 30 of 35

EXHIBIT B

Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 31 of 35

Begin forwarded message:
From: Heather Sullivan <hmas0531@gmail com>
Date: September 15, 2021 at 11:44:46 AM EDT
To: MGB Religious Exemptions Committee <MGBReligiousExemptions@partners org>
Subject: Re: NWH Request for Religious Exemption
Dear MGB Religious Exemption Committee,

Could you please provide me an explanation as to why my request was denied? I spent five hours carefully documenting my religious
exemption appeal and I’m requesting further information as to why it was rejected  Thank you
Heather Sullivan
On Sep 14, 2021, at 8:53 AM, MGB Religious Exemptions Committee <MGBReligiousExemptions@partners org> wrote:
Heather,

Your request for a religious exemption from COVID-19  vaccination has been reviewed and is denied   Information about
ongoing vaccine clinics can be found here

Regards,

MGB Religious Exemption Committee

From: Heather Sullivan <hmas0531@gmail com>
Sent: Thursday, September 2, 2021 10:59 AM
To: MGB Religious Exemptions Committee <MGBReligiousExemptions@PARTNERS ORG>
Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 32 of 35

Subject: Re: Fw: Action Required - NWH Request for Religious Exemption: additional information required

        External Email - Use Caution
Dear MGB Religious Exemption Committee,

I hope this email finds you well, and that you have had a relaxing summer  My name is Heather Sullivan and I have worked as a
Registered Nurse on the inpatient pediatrics unit at Newton-Wellesley Hospital for the past two years  I am writing to you in
response to a religious exemption denial that I recently received  I do have a great deal of respect for the entire Mass General
Brigham organization’s staff, and the results of every single person’s phenomenal effort throughout the COVID-19 pandemic
can speak for itself  Regarding the rejection of my religious waiver from the vaccination, I must appeal as I feel it deserves a
second look with more information regarding my faith

I was raised my entire life in the Catholic church, but recently became more devout in my faith this past year after joining a
young adult Cathilic prayer group at my parish, St  Mary’s of the Assumption in Dedham, MA  Father Dominic of this church
can attest to my spiritual formation throughout my participation with this group, and I have included his contact information
below  Furthermore, my religious convictions regarding abortion and the use of foetal cell lines became stronger this past
summer through my experiences working as the Nurse Manager of Attleboro Women’s Health Center (AWHC), a pregnancy
resource center that assists women in crisis pregnancies, many of whom are contemplating abortion  Kathy Hill, an AWHC
volunteer, as well as Darlene Howard, the Director of AWHC can both attest to my spiritual growth throughout my time
working at this organization, and I have included both of their contact information below

My experiences with St  Mary of the Assumption’s young adult prayer group as well as with Attleboro Women’s Health Center
opened up my eyes to the Catholic moral objection to vaccines using aborted foetal cells in stem cell research, testing,
development, and otherwise  Before this past year, my family and I did not understand that many modern vaccines are
manufactured involving the use of foetal cell lines  Consequently, I had received all of my childhood immunizations and annual
flu shots  However, had I known the vaccines which used cells derived from aborted babies at any point in its research to
production, myself and my family would have declined them  Even though many vaccines do not contain foetal cells
themselves, there exists a close cooperation between the harvester and the abortionist for living samples to be extracted  As a
Catholic, I believe that every human being is created by God in His image at conception, and therefore has intrinsic value  Thus,
according to my beliefs, it would be sinful to accept any vaccine that is connected to the use of foetal cells, even if that
connection is far removed from the original foetus

While Johnson & Johnson’s COVID-19 vaccine used foetal cell lines in its development, design, production, and subsequent
testing, the Pfizer and Moderna vaccines used foetal cell lines in their design and development, as well as in their subsequent
batch testing, but not for the cellular production of the vaccine  Although Pfizer and Moderna’s vaccines for COVID-19 are not
the direct by-products of foetal cells, their production including the spike protein’s redesign, subsequent recoding of mRNA
fragments, as well as the expression of pseudoviruses and neutralization used aborted foetal cells  Therefore, these vaccines rely
heavily on foetal cell lines, and my religious objection is to any use of the bodies and tissue of aborted foetuses regardless of
whether a vaccine contains physical by-products of foetal cells

I referenced the Charlotte Loizer Institute’s table on COVID-19 Vaccine Candidates and Abortion-Derived Cell Lines in my
research on this matter  Please reference this table (found at https://s27589 pcdn co/wp-content/uploads/2020/12/COVID-19-
Vaccine-Candidates-and-Abortion-Derived-Cell-Lines pdf), which includes hyperlinks to scientific journals which provide
information on each vaccine’s use of specific foetal cells in design and development  These studies reveal that some of Moderna
and Pfizer’s confirmatory lab tests for the COVID-19 vaccine used abortion-derived cells  Specifically, their protein test and
pseudovirus used HEK-293 cells  Human Embryonic Kidney cells, attempt 293 (HEK-293) were developed from the kidney
cells of a likely aborted Dutch female in 1972  Please see the discussion on the bioethics of HEK-293 use found at
https://www pdcnet org/C1257D43006C9AB1/file/5265B61D5497F52585257D94004802BB/$FILE/ncbq_2006_0006_0003_0077_0099 pdf
Information on Moderna’s use of HEK-293 cells can be found at https://www nature com/articles/s41586-020-2622-0 pdf, while
information on Pfizer’s use of HEK-293 cells can be found at
https://www biorxiv org/content/10 1101/2020 09 08 280818v1 full pdf

Foetal cell lines, whatever the genetic modification or passage of time, are still objectively cells from a foetus, and often from a
specific tissue or organ  Thus, the Pfizer, Moderna, and J&J vaccines all violate my religious beliefs regarding the sanctity of
life to some degree  My stance is supported by various passages from the Holy Bible, such as “Before I formed you in the womb
I knew you, and before you were born, I consecrated you” (Jeremiah 1:5), and “As you do not know the way the spirit comes to
the bones in the womb of a woman with child, so you do not know the work of God who makes everything” (Ecclesiastes 11:5)

As you mentioned, numerous faith organizations that oppose abortion have publicly supported COVID-19 vaccination,
including the Vatican  Their support for vaccination is based on the argument that the evil of abortion was committed for the
good of others through stem-cell research  However, the Holy Bible refutes this in Romans 3:8, which states: “And why not do
evil that good may come, as some people slanderously charge us with saying  Their condemnation is just ” Furthermore, in his
Address to a Meeting of the Pontifical Academy of Sciences, 23 October 1982: AAS 75 (1983) 37, Saint John Paul II stated “I
condemn, in the most explicit and formal way, experimental manipulations of the human embryo, since the human being, from
conception to death, cannot be exploited for any purpose, whatsoever ”
Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 33 of 35

The Vatican’s remarks on vaccination are not defined as Catholic church teaching or doctrine  In a statement letter made by the
Vatican regarding COVID-19 vaccinations, it objectively states that vaccinations are not a moral obligation and must be
voluntary  According to Rome, from the Offices of the Congregation for the Doctrine of the Faith, on 21 December 2020,
Liturgical Memorial of Saint Peter Canisius, “Practical reason makes evident that vaccination is not, as a rule, a moral
obligation and that, therefore, it must be voluntary” (Section 5)  “Pharmaceutical companies and governmental health agencies
are therefore encouraged to produce, approve, distribute and offer ethically acceptable vaccines that do not create problems of
conscience for either health care providers or the people to be vaccinated” (From the same document, Section 4)  “Those who,
however, for reasons of conscience, refuse vaccines produced with cell lines from aborted fetuses, must do their utmost to
avoid, by other prophylactic means and appropriate behavior, becoming vehicles for the transmission of the infectious agent”
(From the same document, Section 5)  As the Catholic church teaches that God gives us the Holy Spirit to guide us in
determining right from wrong, which lives within our conscience, we are encouraged to listen to our conscience when making
all decisions  The Vatican’s statement verifies that we should not compromise our consciences, but instead do what we can
within what we believe is morally permissible to ensure the safety and wellbeing of others  This is something I have done and
continue to do  Consequently, my Catholic beliefs do not permit me to knowingly and willingly receive a vaccine that was
developed through stem-cell research from aborted foetuses

I sincerely appreciate the MGB Religious Exemption Committee’s careful review of my case in consideration of my religious
beliefs as well as the internal conflict I have been going through  I hope my explanation of these beliefs with references
adequately explains my stance on the COVID-19 vaccine, but I would be happy to provide you with more information or
additional explanation should you require it  At Newton-Wellesley Hospital, our mission is to treat and care for all of our
patients as well as their families as we would a beloved family member  As a nurse, I have made it my duty to respect and value
each individual patient and coworker’s religious beliefs without judgement  I have experienced a level of distress over this
situation and decision, and it has not been easy to stand up for my faith  I respectfully request for the MGB Religious Exemption
Committee to respect my religious beliefs regarding morally-tainted vaccines and to re-examine my case if possible

Thank you very much for considering this appeal

Respectfully,

Heather Sullivan, RN

Father Dominic (617) 459-7687
Kathy Hill (508) 397-7280
Darlene Howard (774) 284-0589

On Wed, Sep 1, 2021 at 5:09 PM Sullivan, Heather Marie <HMSULLIVAN@partners org> wrote:

From: MGB Religious Exemptions Committee <MGBReligiousExemptions@PARTNERS ORG>
Sent: Tuesday, August 31, 2021 8:57 PM
To: Sullivan, Heather Marie <HMSULLIVAN@PARTNERS ORG>
Subject: Action Required - NWH Request for Religious Exemption: additional information required

Heather,

Your request for a religious exemption from COVID-19 and/or flu vaccination has been received, but relies on inaccurate
information   You explained that your religious objection to the vaccine was due to your opposition to abortion; however,
none of the COVID-19 vaccines contain cells from an aborted fetus   While the J&J vaccine used a fetal cell line that was
developed in the 1970s and 1980s to produce and manufacture the vaccine, the vaccine itself does not contain fetal cells
Moreover, Pfizer and Moderna’s mRNA vaccines did not use a fetal cell line to produce and manufacture the vaccine
Numerous faith organizations who oppose abortion have publicly supported COVID-19 vaccination

Please provide an additional explanation so that we may further consider your request   In particular, if your religion publicly
supports vaccination, please explain how your faith prevents you from receiving a vaccine   Please also provide any
supporting documentation that you believe will be relevant to further consideration of your request, including evidence that
you have a history of religious exemption to vaccines   If you have received vaccines in the past, please explain why your
religion did not prevent you from receiving vaccines in the past and now will not allow for COVID-19 and/or flu vaccination
If your response is not received by September 6th,  your request for an exemption will be denied   Information about ongoing
Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 34 of 35

vaccine clinics can be found here   Information about ongoing vaccine clinics can be found here

Regards,

MGB Religious  Exemptions Committee

The information in this e-mail is intended only for the person to whom it is addressed  If you believe this e-mail was sent to
you in error and the e-mail contains patient information, please contact the Mass General Brigham Compliance HelpLine at
http://www massgeneralbrigham org/complianceline  If the e-mail was sent to you in error but does not contain patient
information, please contact the sender and properly dispose of the e-mail

Please note that this e-mail is not secure (encrypted)   If you do not wish to continue communication over unencrypted e-mail,
please notify the sender of this message immediately   Continuing to send or respond to e-mail after receiving this message
means you understand and accept this risk and wish to continue to communicate over unencrypted e-mail
--
Heather Sullivan RN, BSN, MBA
hmas0531@gmail com
(781) 414-2091
The information in this e-mail is intended only for the person to whom it is addressed  If you believe this e-mail was sent to you
in error and the e-mail contains patient information, please contact the Mass General Brigham Compliance HelpLine at
http://www massgeneralbrigham org/complianceline  If the e-mail was sent to you in error but does not contain patient
information, please contact the sender and properly dispose of the e-mail
Please note that this e-mail is not secure (encrypted)   If you do not wish to continue communication over unencrypted e-mail,
please notify the sender of this message immediately   Continuing to send or respond to e-mail after receiving this message
means you understand and accept this risk and wish to continue to communicate over unencrypted e-mail
Case 1:21-cv-11686   Document 3   Filed 10/17/21   Page 35 of 35

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