?Takeaway: Employees claiming discrimination under federal law ordinarily cannot obtain a preliminary injunction to immediately stop the adverse action or obtain immediate reinstatement. Because Title VII of the Civil Rights Act of 1964 allows a broad range of remedies, a discrimination plaintiff has a hard time showing the extraordinary sort of situation to which preliminary injunctive relief would apply.
?A pediatrician terminated for declining to receive a COVID-19 vaccine despite a hospital’s vaccination requirement did not persuade the 7th U.S. Circuit Court of Appeals that he was entitled to immediate relief.
The plaintiff worked as a pediatric critical care specialist at St. Vincent Hospital in Indianapolis. Owned by Ascension Health Inc., St. Vincent Hospital adopted a COVID-19 vaccine requirement in the summer of 2021. Employees had until Nov. 12, 2021, to get vaccinated unless they received a medical or religious exemption.
In considering whether to grant an exemption, St. Vincent and Ascension considered the employee’s position and the amount of contact with others, the current health and safety risk posed by COVID-19, and the cost and effectiveness of other safety protocols. The plaintiff treated gravely ill children, including those suffering from or at risk of organ failure, in the pediatric intensive care unit (ICU).
The plaintiff applied for a religious exemption to the COVID -19 vaccine mandate, but St. Vincent denied the request on the ground that providing an exemption to him as a pediatric intensivist working with acutely ill pediatric patients posed more than a minimal burden to the hospital. The plaintiff and four other St. Vincent employees, including two pediatric ICU nurses, responded by filing an Equal Employment Opportunity Commission complaint alleging religious discrimination.
All five were suspended without pay in November 2021. That same month, the plaintiff and these co-workers filed a class action, seeking injunctive relief and damages, alleging that St. Vincent violated Title VII by denying their religious exemption requests.
St. Vincent subsequently afforded the other named plaintiffs—a nurse practitioner and three nurses—religious accommodations. Nonetheless, St. Vincent terminated the plaintiff’s employment in January 2022, despite the lack of any evidence differentiating the plaintiff and these other employees.
The plaintiff remained the only one of the named plaintiffs seeking injunctive relief. Since losing his job, the plaintiff tried to find similar work at other hospitals. He attributed his lack of success to a noncompete agreement he had with St. Vincent, his preference not to move his family and otherwise limited demand at other hospitals for an unvaccinated physician in his area of specialized care. He submitted a sworn declaration claiming that his professional skills would dull so rapidly and extensively during any period of extended leave that within six months of being suspended (by May 12, 2022), he would no longer be fit to work in a pediatric ICU.
The district court denied preliminary relief, concluding that the plaintiff had shown neither irreparable harm nor an inadequate remedy at law. It explained that loss of employment alone does not establish irreparable harm. Rather, the possibility of reinstatement or back pay at the end of litigation is usually enough to show that preliminary injunctive relief is unnecessary. The district court further found that the plaintiff’s alleged loss of professional skills was speculative.
The plaintiff appealed the denial of his motion for a preliminary injunction to the 7th Circuit. At oral argument on May 31, 2022, the plaintiff’s counsel backed off the position that the plaintiff lost his competency to practice on May 12, 2022. Nevertheless, the attorney argued that the plaintiff faced an unusually difficult job search and that the 7th Circuit should adopt a presumption of irreparable harm in Title VII religious discrimination cases.
The 7th Circuit declined the plaintiff’s request to impose a preliminary injunction, finding that Title VII provided a range of remedies to successful plaintiffs, including reinstatement, back pay, front pay, compensatory damages and other equitable relief. If the plaintiff were to succeed, the district court could potentially award him the necessary training programs to bring his skills back up to their prior level.
Moreover, the nature of the harm did not require immediate intervention by a court, as the termination had occurred, and was not pending as in other preliminary injunction cases. The fact that the case involved religious discrimination did not alter the plaintiff’s need to show irreparable harm.
Thus, the 7th Circuit upheld the district court’s denial of preliminary injunctive relief.
Halczenko v. Ascension Health Inc., 7th Cir., No. 22-1040 (June 23, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.