Boone v. Ill. Dep't of Corr.

• Decision Date: 18 November 2022
• Docket Number: 21-cv-3229-JES-JEH
• Parties: ALVIN BOONE, BRANDON HESTER, LINDSEY QUISENBERRY, TAMMY PARKHILL, and SUSAN CHRISTNER, Plaintiffs, v. ILLINOIS DEPARTMENT OF CORRECTIONS, ILLINOIS DEPARTMENT OF HUMAN SERVICES, ILLINOIS DEPARTMENT OF VETERAN AFFAIRS, ILLINOIS DEPARTMENT OF JUVENILE JUSTICE, ILLINOIS DEPARTMENT OF CENTRAL MANAGEMENT SERVICES, ILLINOIS DEPARTMENT OF PUBLIC HEALTH, and JAY R. PRITZKER, in his official capacity as GOVERNOR OF THE STATE OF ILLINOIS, Defendants.
• Court: U.S. District Court — Central District of Illinois

ALVIN BOONE, BRANDON HESTER, LINDSEY QUISENBERRY, TAMMY PARKHILL, and SUSAN CHRISTNER, Plaintiffs,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, ILLINOIS DEPARTMENT OF HUMAN SERVICES, ILLINOIS DEPARTMENT OF VETERAN AFFAIRS, ILLINOIS DEPARTMENT OF JUVENILE JUSTICE, ILLINOIS DEPARTMENT OF CENTRAL MANAGEMENT SERVICES, ILLINOIS DEPARTMENT OF PUBLIC HEALTH, and JAY R. PRITZKER, in his official capacity as GOVERNOR OF THE STATE OF ILLINOIS, Defendants.

No. 21-cv-3229-JES-JEH

United States District Court, C.D. Illinois

November 18, 2022

ORDER AND OPINION

JAMES E. SHADID, UNITED STATES DISTRICT JUDGE.

This matter is now before the Court on Defendants' Motions to Dismiss (Doc. 14 and 24), and Memoranda in support and Plaintiffs' Motion and Memorandum in Opposition (Doc. 17). For the reasons set forth below, Defendants' Motions to Dismiss are GRANTED in part and DENIED in part.

BACKGROUND

On December 2, 2022, Defendants filed their initial motion to dismiss Plaintiffs' amended complaint and Plaintiffs responded with a Motion in Opposition (Doc. 17). On June 1, 2022, the Court entered a text order granting Plaintiffs' motion for leave to file a Second Amended Complaint on Plaintiffs' assertion that Defendants did not object. Defendants subsequently filed a Motion to Reconsider (Doc. 21), advising the Court that Plaintiff had asked

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whether Defendants had an objection the same day they filed the motion for leave, without an opportunity for Defendants to respond or voice their objection. On July 11, 2022, the matter was heard before Magistrate Judge Jonathan Hawley. Judge Hawley denied the Motion to Reconsider, allowing to stand the Second Amended Complaint which requested a Temporary Restraining Order, Preliminary and Permanent injunctive Relief, Declaratory Relief, and money damages. Judge Hawley revived the parties' Motion to Dismiss and Response and gave Defendants leave to file a second Motion to Dismiss to address the three Counts added in the Second Amended Complaint. Defendants subsequently filed (Doc. 24), a Motion to Dismiss Counts III, IV and V of the Second Amended Complaint.

FACTS

The following facts are taken from Plaintiff's Complaint, which the Court accepts as true for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). Plaintiffs Alvin Boone, Brandon Hester, Lyndsey Quisenberry, Tammy Parkhill and Susan Christner, individually and on behalf of all others similarly situated, proceed on a Second Amended Complaint against their respective employers; the Illinois Department of Corrections (“IDOC”), the Illinois Department of Human Services (“IDHS”), the Illinois Department of Veterans' Affairs (“IDVA”), the Illinois Department of Juvenile Justice (“IDJJ”), the Illinois Department of Central Management Services (“IDCMS”), the Illinois Department of Public Health (“IDPH”); and against Illinois Governor J.B. Pritzker. Plaintiffs allege that pursuant to the Governor's various executive orders, the Defendant employers require that they be vaccinated against COVID-19 and submit to COVID-19 testing, in violation of their Constitutional rights and State statute.

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Plaintiffs assert that they have sincerely held religious beliefs that prevent them from taking a vaccine which was derived, in whole or in part, from stem cells or other materials obtained from aborted fetuses. Plaintiffs also assert sincerely held beliefs of conscience which militates against participation in medical treatment which they believe ineffective and unnecessary. Plaintiffs assert that their employers' COVID-19 policies require them to receive a not-fully-authorized vaccine or risk losing their jobs. Plaintiffs admit that they have been offered a religious exemption, however, the exemption requests largely remain unresolved and so delayed as to be unavailable. Plaintiffs claim that even if the exemptions were granted, they would have to submit to periodic COVID-19 testing, which is also objectionable.

Plaintiffs assert that the Defendants' vaccination and testing requirements violate Title VII of the Civil Rights Act, the Emergency Use Authorization Act (“EUA”), the Illinois Religious Freedom Restoration Act (“IRFRA”), and the Free Exercise and Equal Protection clauses of the U.S. Constitution and Illinois constitution. Plaintiffs seek class certification under Fed. R. Civ P. 23(a) and (b), declaratory relief, preliminary and permanent injunctive relief, money damages, costs, and fees. Plaintiffs also seek a Temporary Restraining Order (“TRO”) to enjoin Defendants from: enforcing mandatory COVID-19 vaccination policies, denying Plaintiffs' right to refuse administration of the COVID-19 vaccines under the EUA, and discriminating against Plaintiffs for the exercise of their sincerely held religious beliefs.

Defendants' Motion to Dismiss (Doc. 14)

Defendants first Motion to Dismiss addresses Plaintiffs' Count I Title VII claim, Count II Emergency Use Authorization claim, Plaintiffs' request for class certification, and asserts that Plaintiff Quisenberry and Defendant IDPH must be dismissed.

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Defendants explain that Illinois has been in a declared state of emergency under the Illinois Emergency Management Agency Act since March of 2020.^[1] On August 26, 2021, Governor Pritzker issued Executive Order (“EO”) 87, and later, EO 88, requiring that State employees at State-operated congregate facilities, as well as contractors and vendors who spend significant time at those facilities, be vaccinated against COVID-19. Both Executive Orders expressly stated that this requirement was subject to union bargaining. The Defendants, with the exception of IDPH and Governor Pritzker, operate congregate facilities. These Defendants, pursuant to the Governor's directive, require COVID-19 vaccination or testing of all facility personnel, including those union personnel subject to the relevant collectively bargained agreement between the union and the State. Defendants deny violating Plaintiffs' state and federal rights, asserting that it is within the State's right as an employer to set the terms and conditions of employment. Defendants assert, further, that they have provided a reasonable accommodation, as employees with sincerely held religious beliefs and beliefs of conscience may request an exemption from the vaccine requirement although they would be subject to regular COVID-19 testing both while the exemptions are pending and later, if they are granted.

Defendants assert that Count I and II must be dismissed as premature as, while the religious exemptions remain pending, Plaintiffs Christner, Hester and Parkhill continue to work and are not required to be vaccinated. Defendants assert that Plaintiff Quisenberry is not employed by any of the State Defendants and not entitled to relief against them. The remaining Plaintiff, Boone, belongs to a bargaining unit with which the State has not reached an agreement so, currently, is not required to vaccinate. Defendants assert that these claims are premature for

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the additional reason that Plaintiffs did not first exhaust administrative remedies by filing a Charge of Discrimination with the EEOC and receiving a Right to Sue letter.

Defendants assert, further, that Plaintiffs fail to establish a reasonable likelihood of success on the merits, or irreparable harm, necessary for injunctive relief to issue. Defendants point out that Plaintiffs' response, while addressing the elements of a motion to dismiss, is silent as to the elements necessary to prevail on the TRO. Curiously, Defendants have done the opposite, requesting a dismissal of the TRO and dismissal on the merits under Rule 12(b)(6), while only citing the elements necessary for a TRO. Regardless, the Court has reviewed the parties' briefings under both standards and has applied them in this Order.

Defendants also move to dismiss IDPH as a party where Plaintiffs had not alleged that it employs any of the Plaintiffs or operates any Defendant congregate facility. Plaintiffs have not responded, conceding the issue. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (finding that a litigant waives an issue raised in a motion to dismiss if he does not respond to it). Accordingly, IDPH is dismissed as a party Defendant, without objection.

MOTION TO DISMISS STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); McGowan v. Hulick, 612 F.3d 636, 637 (7th Cir. 2010) (courts accept factual allegations as true and draws all reasonable inferences in plaintiff's favor). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

TRO STANDARD

Plaintiff has requested both a TRO and preliminary injunction, with the same standard applying to both. Goodvine v. Gorske, No. 06-862, 2007 WL 41947, at *9 (E.D. Wis. Jan. 5, 2007) (citing Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). The principal difference is that a TRO may issue without notice to the party to be enjoined and may not last more than 14 days. Fed.R.Civ.P. 65(b)(2). On the other hand, a preliminary injunction will issue only after the adverse party has notice and...