Brox v. Hole

• Docket Number: CIVIL ACTION NO. 22-10242-RGS
• Decision Date: 10 March 2022
• Citation: 590 F.Supp.3d 359
• Parties: Captain Albert BROX et al. v. The Woods HOLE, Martha's Vineyard, and Nantucket Steamship Authority and Janice Kennefick
• Court: U.S. District Court — District of Massachusetts

590 F.Supp.3d 359

Captain Albert BROX et al.

v.The Woods HOLE, Martha's Vineyard, and Nantucket Steamship Authority and Janice Kennefick

CIVIL ACTION NO. 22-10242-RGS

United States District Court, D. Massachusetts.

Filed March 10, 2022

Albert Brox, Pro Se.

Kimberly Fernandes, Pro Se.

James Bondarek, Pro Se.

Andrea Sheedy, Pro Se.

Paul Menton, Pro Se.

Christopher Ovaska, Pro Se.

Mark Anderson, Pro Se.

Tim Richardson, Pro Se.

Steven Ennis, Pro Se.

Sonia Simoneau, Pro Se.

Jeffery D'Amario, Pro Se.

Ryan W. Jaziri, Morgan, Brown & Joy LLP, Boston, MA, for Wood's Hole, Martha's Vineyard and Nantucket Steamship Authority.

MEMORANDUM AND ORDER ON PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

STEARNS, D.J.

Plaintiffs, who are employees of the Woods Hole, Martha's Vineyard, and Nantucket Steamship Authority (the Authority), seek preliminary injunctive relief from the Authority's policy mandating vaccination

against COVID-19 as a condition of their continued employment. The Authority's policy, according to plaintiffs, violates their statutory and constitutional rights. After careful review of the parties’ briefs, the court will DENY plaintiffs’ motion for injunctive relief.

BACKGROUND

Since its detection in late 2019, the outbreak of SARS-CoV-2 (COVID-19) has metamorphosized into the deadliest worldwide pandemic since the 1918 outbreak of Spanish flu. As of the date of this order, COVID-19 has caused the deaths of over six million persons worldwide, including 959,533 Americans, 22,944 of whom are citizens of the Commonwealth of Massachusetts.

To protect against the spread of COVID-19 and to reduce the risk of severe illness and death for persons infected with the virus, the Food and Drug Administration (FDA) has given full approval to two COVID-19 vaccines manufactured by the pharmaceutical companies Pfizer/BioNTech and Moderna. "Full FDA approval takes place when enough data demonstrate that the vaccines are safe and effective for most people who receive them, and when the FDA has had an opportunity to review and approve the whole vaccine manufacturing process and facilities."¹ The Centers for Disease Control and Prevention (CDC) states that "[p]eople who are up to date on vaccines, including booster doses when eligible[,] are likely to have stronger protection against COVID-19 variants," including the now-dominant omicron variant. Kennefick Decl. (Dkt # 16) Ex. E at 62.

The Authority, which was created by the Massachusetts Legislature in 1960 to provide ferry service to the islands of Martha's Vineyard and Nantucket, "services members from all walks of life, including young children, elderly individuals[,] and the immunocompromised." Kennefick Decl. ¶¶ 3-5, 11. Because the Authority's mission is to provide public transportation, many of the Authority's 750 employees, "including each of the [p]laintiffs, regularly interact with fellow employees, customers[,] and/or vendors as part of their core job responsibilities." Id. ¶ 20.

On January 3, 2022, the Authority issued a COVID-19 Vaccination Verification Policy (the Policy) covering all employees. Id. ¶ 27. The Policy is modeled on Governor Charles Baker's Executive Order No. 595, which declares that "widespread vaccination

is the only means the Commonwealth has over the long-term to ensure protection from COVID-19 in all its variations and to end the many negative consequences COVID-19 produces in our daily lives," id. ¶ 21-22, and "encourages" independent state agencies and authorities to adopt a similar omnibus policy. Id. ¶ 23.

The Policy states that "all employees must receive at least one (1) dose of a COVID-19 vaccine by January 5, 2022 and must be fully vaccinated by February 16, 2022." Id. ¶ 28. Employees who refuse the vaccine are subject to progressive disciplinary steps, up to and including termination. ²

Id. ¶ 30. The Policy allowed for employees to seek medical or religious accommodations on a case-by-case basis. Id. ¶ 29.³

Most of the plaintiffs sought religious exemptions from the vaccination

Policy. Id. ¶ 35. After a review of the plaintiffs’ requests, which included the completion of a comprehensive questionnaire and a face-to-face interview, the Authority rejected the accommodation requests as imposing an undue hardship on day-to-day operations. Id. ¶¶ 35-51. More specifically, the Authority found that because of plaintiffs’ public-facing roles, the requested exemptions would "unreasonably risk" the health and safety of fellow employees, customers, vendors, and the plaintiffs themselves, and thereby "undermine public trust and confidence in the safety of the Authority's facilities and vessels." Id. ¶ 52.

On February 11, 2022, plaintiffs filed an action in Barnstable Superior Court seeking injunctive and declaratory relief. The Authority then removed the case to this federal district court. Plaintiffs now renew their motion for preliminary injunctive relief.

DISCUSSION

"A preliminary injunction is an ‘extraordinary and drastic remedy’ " that is "never awarded as of right." Munaf v. Geren , 553 U.S. 674, 690-691, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal citation omitted). In determining whether to grant a preliminary injunction, the court must weigh: "(1) the likelihood of the movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities ...; and (4) the effect on the public interest of a grant or denial of the injunction." Gately v. Commonwealth of Mass. , 2 F.3d 1221, 1224 (1st Cir. 1993). That said, the "sine qua non of [the preliminary injunction standard] is whether the plaintiffs are likely to succeed on the merits." Weaver v. Henderson , 984 F.2d 11, 12 (1st Cir. 1993).

Plaintiffs allege that the Authority's Policy violates four of their statutory and constitutional rights under state and federal law: (1) the right to religious worship secured by Article 2 of the Massachusetts Declaration of Rights; (2) the right to free religious exercise guaranteed by the First Amendment to the United States Constitution; (3) the right to be free of religious discrimination as guaranteed by Mass. Gen. Laws c. 151B, § 4 ; and (4) the rights to privacy, personal autonomy, and personal identity secured under the Fourteenth Amendment. The court discusses the likelihood of success on each claim in turn.

Count I – Article 2 of the Massachusetts Declaration of Rights

Article 2 of the Massachusetts Declaration of Rights provides:

[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Plaintiffs’ reading of this provision as encompassing protection over the free exercise of religion essentially conflates Article 2 with the Free Exercise Clause of Article 46, § 1, of the Massachusetts Constitution – an approach that the Massachusetts Supreme Judicial Court has expressly rejected. See Soc'y of Jesus of New Eng. v. Comm. , 441 Mass. 662, 676, 808 N.E.2d 272 (2004) ("This expansive reading of art. 2 would conflate it with the free exercise clause of art. 46, § 1, and effectively render the free exercise clause superfluous.").⁴

Moreover, not all actions grounded on religious belief qualify as "worship[ ]" under Article 2. Id. at 677, 808 N.E.2d 272. Indeed, "the essentially absolute protection of [Article 2 is] directed at the ritual and ceremonial aspects of ‘worship[ ].’ " Id. (emphasis added). Plaintiffs do not allege that the Policy trenches on any religious ritual. Thus, their prospects for success on their Article 2 claim are negligible at best.⁵

Count II – 42 U.S.C. § 1983 (Free Exercise Under First Amendment)

Plaintiffs next contend that the Policy – as well as the Authority's denial of plaintiffs’ request for religious exemptions – contravenes their right to the free exercise of religion secured by the First Amendment, in violation of 42 U.S.C. § 1983.⁶ Under the Free Exercise Clause, the government may not "(1) compel affirmation of religious beliefs; (2) punish the expression of religious doctrines it believes to be false; (3) impose special disabilities on the basis of religious views or religious status; or (4) lend its power to one side or the other in controversies over religious authorities or dogma." Parker v. Hurley , 514 F.3d 87, 103 (1st Cir. 2008). "The First Amendment's prohibition on laws ‘prohibiting the free exercise’ of religion is incorporated against the states by the Fourteenth Amendment." Freedom from Religion Found. v. Hanover Sch. Dist. , 626 F.3d 1, 14 (1st Cir. 2010), quoting Cantwell v. Conn. , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

As another judge of this court has concluded in a similar case, the Commonwealth (and, by extension, the Authority) "is under no constitutional obligation to offer a religious exemption to its [v]accine [r]equirement." Harris v. Univ. of Mass., Lowell , 557 F.Supp.3d 304, 314 (D. Mass. Aug. 27, 2021), citing Nikolao v. Lyon , 875 F.3d 310, 316 (6th Cir. 2017) ; Phillips v. City of N.Y. , 775 F.3d 538, 543 (2d Cir. 2015) ; Workman v. Mingo Cty. Bd. of Educ. , 419 F. Appx 348, 355 (4th Cir. 2011) ; Whitlow v. Cal. , 203 F. Supp. 3d 1079, 1086 (S.D. Cal. 2016).

Of course, where – as here – a state agency "offers religious exemptions, it must not administer them in an unconstitutional way." Harris , 557 F.Supp.3d at 314. Plaintiffs have not alleged any facts that suggest that the Authority has "administered its religious exemption policy in a way that burdens some religions but not others, or that [the Authority has] coerced [plaintiffs] in [their] religious practices." Id. (internal citations omitted). Thus, plaintiffs’ free exercise claim fails at this stage.

Count III – Religious Discrimination Under Mass. Gen. Laws c. 151B

Plaintiffs maintain that the Authority's...