PAYTON et al v. WALSH et al

Filing 62

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION. Plaintiffs' motion for preliminary injunction, dkt. 38 , is denied. Plaintiffs' request for an evidentiary hearing on imposition of a permanent injunction is denied without prejudice. Magistrate Judge Garcia is asked to conduct a status conference to enter an expedited case management plan. (See order for further details.) Signed by Judge James Patrick Hanlon on 1/7/2022. (PKP)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
STEPHANIE PAYTON RN,
et al.,
Plaintiffs,
v.
MARTIN J. WALSH United States
Secretary of Labor, in his official
capacity,
ASCENSION ST. VINCENT HOSPITAL a
Delaware Corporation Registered and
doing business in Indiana,
Defendants.

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No. 1:21-cv-02817-JPH-MG

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Ascension St. Vincent Hospital (Ascension) adopted a policy requiring its
employees to be vaccinated against COVID-19. Plaintiffs each requested an
exemption from the vaccination requirement based on their religious beliefs.
Ascension denied those requests. Plaintiffs sought a temporary restraining
order prohibiting Ascension from putting them on unpaid leave and
terminating their employment. The Honorable Sarah Evans Barker denied that
motion on November 12, 2021, and Ascension put Plaintiffs on unpaid leave
the same day. 1

This case was transferred under Local Rule 40-1(e) as a related case with Halczenko
v. Ascension Health Inc., No. 1:21-cv-2816. To the extent the controlling applicable
law and certain background facts are the same, the Court sets them forth as
articulated in Halczenko, 2021 WL 6196992 (S.D. Ind. Dec. 30, 2021) (order denying
preliminary injunction).
1

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Ascension had previously informed Plaintiffs that their employment
would be permanently terminated on January 4, 2022, if they were still
unvaccinated at that time. But in mid-December, Ascension reversed course
and informed all but one Plaintiff—Dr. Casey Delcoco—that they had been
recalled and could return to their respective positions. The motion for
preliminary injunctive relief is moot with respect to those Plaintiffs who have
been reinstated or have resigned. 2 Dr. Delcoco, on the other hand, has not
been informed that her exemption request is granted or that her clinical
privileges at Ascension's hospitals have been restored. Accordingly, the Court
addresses only Dr. Delcoco's request that Ascension reinstate her clinical
privileges. For the reasons explained below, that motion is DENIED.
I.
Facts & Background
By agreement of the parties, dkt. 44 at 2, no discovery was conducted
and no hearing was held. Consequently, the Court bases its factual findings
on the parties' briefs and the written record.
Dr. Casey Delcoco is a board-certified family medicine doctor who
specializes in obstetrics. Dkt. 1 at 3 ¶ 8. She runs her own clinic, Magnificat
Family Medicine, where she provides faith-based fertility care to patients. Id.;
dkt. 60 at 1. Dr. Delcoco has clinical privileges in Ascension's network on a

At least two Plaintiffs, Joshua Frederick and Sarah Rottler, resigned their positions
on November 12, 2021, to avoid having a suspension on their employment records.
Dkt. 55 at 1; dkt. 61 at 2.
2

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PRN or "as needed" basis. Id. 3 Therefore, she was included in Ascension's
COVID vaccine mandate, instituted in the late summer-early fall of 2021.
After this policy was announced, Dr. Delcoco applied for an exemption
based on her sincerely held religious beliefs. Dkt. 38 at 2 ¶ 4. Ascension
denied her exemption request. Dkt. 39 at 2–3. The parties disagree on
whether this terminated Dr. Delcoco's PRN contract. Compare dkt. 60 at 1
with dkt. 61 at 1. Regardless, it is the Court's understanding that Dr. Delcoco
no longer has clinical privileges at Ascension facilities as a result of the denial
of her exemption request. Dkt. 56; dkt. 61 at 1.
Dr. Delcoco played a critical role in organizing her fellow employees to
pursue legal action against Ascension after their exemption requests were
denied. Dkt. 61 at 1. Plaintiffs filed complaints with the Equal Employment
Opportunity Commission, alleging violations of Title VII of the Civil Rights Act
of 1964. Dkt. 1 at 9 ¶ 60. Specifically, they allege that Ascension "made no
attempt to reasonably accommodate the Plaintiffs['] religion" and has not
shown "that doing so would constitute an unreasonable burden." Dkt. 39 at
12. 4 They also sought a temporary restraining order against Ascension, dkt. 3,

Because the parties have not raised or briefed the issue, the Court assumes for
purposes of ruling on the motion for a preliminary injunction that Title VII applies to
Dr. Delcoco's relationship with Ascension.
4 Plaintiffs also argue that Ascension's policy violated their First Amendment rights
and the Religious Freedom Restoration Act. Dkt. 39 at 3. However, because Plaintiffs
have not sufficiently alleged that Ascension is a "state actor," the Court does not
consider these arguments at this time. See Listecki v. Official Committee of Unsecured
Creditors, 780 F.3d 731, 736, 741 (7th Cir. 2015); Doe 1 v. NorthShore Univ.
HealthSystem, 2021 WL 5578790 at *15–17 (N.D. Ill. Nov. 30, 2021).
3

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dkt. 19, dkt. 21, which was denied on November 12, 2021. Dkt. 27. Plaintiffs
then filed a motion for a preliminary injunction. Dkt. 38.
While most Plaintiffs have been reinstated or had already resigned, Dr.
Delcoco's clinical privileges with Ascension have not been restored. Dkt. 56.
II.
Applicable Law
A. Preliminary injunction standard
Injunctive relief is "an exercise of very far-reaching power, never to be
indulged in except in a case clearly demanding it." Cassell v. Snyders, 990
F.3d 539, 544 (7th Cir. 2021) (citations and quotations omitted). To obtain
such extraordinary relief, the party seeking the preliminary injunction carries
the burden of persuasion by a clear showing. See Mazurek v. Armstrong, 520
U.S. 968, 972 (1997); Dos Santos v. Columbus–Cuneo–Cabrini Med. Ctr., 684
F.2d 1346, 1349 (7th Cir. 1982).
Determining whether a preliminary injunction is appropriate under
Federal Rule of Civil Procedure 65 involves a two-step inquiry, with a threshold
phase and a balancing phase. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd.
of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). At the threshold phase, the
moving party must show that: (1) without the requested relief, it will suffer
irreparable harm during the pendency of its action; (2) traditional legal
remedies would be inadequate; and (3) it has "a reasonable likelihood of
success on the merits." Id. "If the moving party cannot establish either of
these prerequisites, a court's inquiry is over and the injunction must be

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denied." Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.
1992) (considering, as many courts do, elements 1 and 2 together).
If, however, the movant satisfies these requirements, the Court proceeds
to the balancing phase, applying a "sliding scale" approach "to determine
whether the balance of harm favors the moving party or whether the harm to
other parties or the public sufficiently outweighs the movant's interests."
Whitaker, 858 F.3d at 1044; Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020).
A. Irreparable harm and sufficiency of remedies
"Harm is irreparable if legal remedies are inadequate to cure it. []
Inadequate 'does not mean wholly ineffectual; rather, the remedy must be
seriously deficient as compared to the harm suffered.'" Life Spine, Inc. v. Aegis
Spine, Inc., 8 F.4th 531, 545 (7th Cir. 2021) (citations omitted). The remedial
scheme of Title VII, which is designed to make the plaintiff whole, includes a
broad range of remedies available to a prevailing plaintiff. Williams v.
Pharmacia Inc., 137 F.3d 944, 952 (7th Cir. 1998) (citations omitted). The
range of remedies includes backpay to compensate for lost income;
reinstatement or front pay to mitigate future harm; compensatory damages;
and punitive damages to punish, should the jury find that the employer
engaged in a discriminatory practice with malice or deliberate indifference.
Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e-5(g)(1);
42 U.S.C. § 1981a(b)(1); see generally Morris v. BNSF Railway Co., 969 F.3d
753, 767–68 (7th Cir. 2020) (discussing range of Title VII remedies); Sambrano

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v. United Airlines, Inc., 2021 WL 5176691 at *5–6 (N.D. Tex. Nov. 8, 2021)
(discussing a court's "broad discretion" to craft relief under Title VII).
Ordinarily, "a permanent loss of employment, standing alone, does not
equate to irreparable harm." E. St. Louis Laborers' Local 100 v. Bellon Wrecking
& Salvage Co., 414 F.3d 700, 704 (7th Cir. 2005); see also Sampson v. Murray,
415 U.S. 61, 92 (1974); Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 845 (7th
Cir. 2005); Dos Santos, 684 F.2d at 1349. The possibility of reinstatement or
backpay at the end of litigation is usually enough to show that preliminary
injunctive relief is unnecessary. See e.g., Sampson, 415 U.S. at 90; Shegog v.
Board of Educ. of City of Chicago, 194 F.3d 836, 839 (7th Cir. 1999).
When a plaintiff prevails on an employment discrimination claim under
Title VII, backpay is presumed to be appropriate and reinstatement to the
plaintiff's former position is the "preferred remedy." Morris, 969 F.3d at 767–
68. If reinstatement is impractical, then front pay may be awarded "to put [the
plaintiff] in the identical financial position that he would have occupied had he
been reinstated." Id. at 768 (citation omitted). Separately, compensatory
damages may be awarded for "future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses." 42 U.S.C. § 1981a(b)(3).
Nonpecuniary loss may include injury to character, reputation, and
professional standing. Williams, 137 F.3d at 952. Additionally, "[l]ost future
earning capacity is a nonpecuniary injury for which plaintiffs may be
compensated under Title VII." Id. at 953 (explaining that front pay award and
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compensatory damages for future lost earnings are distinct and compensate
the plaintiff for different injuries).
Regardless of the exact damages or relief sought, the harm complained of
must be concrete; "speculative injuries do not justify" the extraordinary remedy
of injunctive relief. E. St. Louis, 414 F.3d at 704.
III.
Analysis
Plaintiffs allege that Ascension "refused to consider the validity of the
Plaintiffs['] request or evaluate the sincerity of their religious beliefs," and
instead denied each religious exemption request with an identical, rote
response. Dkt. 39 at 3. Dr. Delcoco further contends that, as a leader of the
group of plaintiff-employees, she was targeted and retaliated against by
Ascension. Dkt. 61 at 1–2. While these allegations of hostility to religion are
extremely serious, Dr. Delcoco must "demonstrate" by a clear showing, "that
the irreparable injury is likely in the absence of an injunction." Winter v. Nat.
Res. Def. Council, 555 U.S. 7, 22 (2008) (emphasis in original); see also E. St.
Louis, 414 F.3d at 704; Dos Santos, 684 F.2d at 1349. The Seventh Circuit has
cautioned district courts that "[i]nterlocutory reinstatement in employment
cases should be rare, if that remedy is ever appropriate." Shegog, 194 F.3d at
839.
As a preliminary matter, Dr. Delcoco has not submitted evidence in
support of her claim. Plaintiffs' complaint, dkt. 1, is verified by several
Plaintiffs, dkts. 1-1 through 1-9, but it is not verified by Dr. Delcoco. The
Court could deny the motion for preliminary injunction on this basis alone.
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Mazurek, 520 U.S. at 972. But for efficiency, the Court will assume that Dr.
Delcoco could verify the allegations of general harm that are set forth in the
complaint, as well as the allegations of particularized harm that are set forth in
the briefing, dkt. 38 at 2, and evaluate the motion for preliminary injunction on
the merits.
A. Generalized Harms
The only evidence in the record relating to irreparable harm are
Paragraphs 76 and 77 of Plaintiffs' verified complaint. Dkt. 1 at 11 ¶¶ 76–77.
There, Plaintiffs allege that they "have and will [suffer] irreparable harm which
includes loss of employment, status, prestige, lost wages, lost seniority, future
employment, and other monetary and nonmonetary damages," id. at ¶ 76, and
"will also suffer irreparable [harm] by the loss of their religious liberty if they
take the vaccine or loss of employment if they do not." Id. at ¶ 77.
Regarding the first set of alleged harms, the law is clear that financial
hardship associated with employment termination and other "external factors
common to most discharged employees" cannot support a finding of irreparable
harm, "however severely they may affect a particular individual." Sampson,
415 U.S. at 92 n.68 ("insufficiency of savings or difficulties in immediately
obtaining other employment . . . will not support a finding of irreparable
injury"); see Hetreed v. Allstate Ins. Co., 135 F.3d 1155, 1158 (7th Cir. 1998)
("Loss of face and reputation" are not irreparable harm); Roth v. Lutheran
General Hosp., 57 F.3d 1446, 1460 (7th Cir. 1995) ("loss of professional
association" does not amount to irreparable injury); Dos Santos, 684 F.2d at
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1349 (finding that plaintiff's allegations that she "will be stigmatized in the
medical community, her professional competence will be questioned, her
prospects for future employment will be diminished, and she will be deprived of
valuable experience in the practice of anesthesiology" did not constitute
irreparable injury).
Moreover, Dr. Delcoco has not shown how these harms would affect her
beyond the disruption felt by any discharged employee. She has designated no
evidence to suggest that her loss of clinical privileges at Ascension facilities will
have any impact on her reputation, work history, future employment, status,
or prestige, or that it will result in loss of professional relationships. Similarly,
as the owner of her medical practice, Dr. Delcoco's loss of clinical privileges at
Ascension would not have any effect on her seniority. Last, even if Dr. Delcoco
were a typical, salaried physician with Ascension, the Seventh Circuit has been
clear that, even when faced with termination, "physicians are awarded no
special treatment under Sampson." Bedrossian, 409 F.3d at 846.
Plaintiffs' second category of alleged irreparable harm is premised on
irreparable "loss of their religious liberty if they take the vaccine or loss of
employment if they do not." Dkt. 1 at ¶ 77; Dkt. 39 at 4–5. Ascension
responds that "[n]o one is forcing Plaintiffs to take a vaccine or breach their
religious beliefs." Dkt. 48 at 8. Therefore, Ascension urges this Court to adopt
the reasoning of other courts that have held similar claims do not amount to
irreparable harm because Dr. Delcoco can be compensated for any wrongful
revocation of her privileges through traditional remedies at the end of litigation.
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Id. at 9; see, e.g., Doe 1, 2021 WL 5578790 at *17 (Slip Copy N.D. Ill. Nov. 30,
2021) ("To be sure, Plaintiffs are statutorily protected 'from employers' attempts
to discriminate or retaliate against these employees for living out their religious
convictions.' But that difficulty 'does not demonstrate irreparable harm.'")
(citations omitted); Sambrano et. al. v. United Airlines, Inc., 2021 WL 5176691
at *4–5 (N.D. Tex. Nov. 8, 2021) (recognizing that "United's employees claimed
they faced an impossible choice: get the vaccine or endure unpaid leave," but
finding that the result of this choice is not irreparable harm); Beckerich v. St.
Elizabeth Med. Ctr., No. 2:21-cv-105, 2021 WL 4398027 at *3 (E.D.K.Y. Sep.
24, 2021) (noting that "no Plaintiff in this case is being forcibly vaccinated. . .
these Plaintiffs are choosing whether to comply with a condition of
employment, or to deal with the potential consequences of that choice.")
(reconsideration denied).
The allegations of hostility toward or disregard of religion are not taken
lightly. However, "[r]einstatement pending a trial on the merits, even in cases
of race or sex discrimination, is an extraordinary remedy permissible only upon
a substantial showing of irreparable injury." E.E.O.C. v. City of Janesville, 630
F.2d 1254, 1259 (7th Cir. 1980). Moreover, the remedies provided by Title VII
are designed expressly to make such wrongfully terminated plaintiffs whole.
Williams, 137 F.3d at 952.
B. Particularized Harm
The only claim of irreparable harm specific to Dr. Delcoco was raised in
the motion for preliminary injunction. Dkt. 38 at 4 ¶¶ 18–19. There, Dr.
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Delcoco claims, without evidentiary support, that she has "31 pregnant
patients" relying on her to deliver their babies, and that her "oral and written
contracts" with those patients are "violated and breached by the actions of"
Ascension. Id. at ¶ 18. She asserts that "[s]ignificant case law exists calling
mere breach of contract an irreparable harm." Id. at ¶ 19. However, Dr.
Delcoco did not cite any authority supporting this argument. Dkt. 38; dkt. 39;
dkt. 51. Additionally, she has not shown that these patients cannot deliver
their babies with her at another facility or without her at an Ascension facility.
Therefore, this argument does not support a finding of irreparable harm.
*

*

*

The Court cannot ignore the wide range of equitable and legal remedies
available to Dr. Delcoco in the future if she prevails. The possibility that
adequate compensatory or other corrective relief will be available in the
ordinary course of litigation, "weighs heavily against a claim of irreparable
harm." Sampson, 415 U.S. at 90 (quotation omitted); Abbott, 971 F.2d at 12
(treating irreparable harm and sufficiency of available remedies as one factor).
Under the totality of circumstances, Dr. Delcoco has failed to make a
"clear showing" of irreparable injury or establish an insufficiency of remedies
that would justify the extraordinary relief she seeks pending outcome of this
litigation. Absent this showing, the injunction must be denied, Abbott, 971
F.2d at 12, so the Court does not reach the questions of likelihood of success
on the merits or the balancing of harms.

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Plaintiffs also assert an independent claim against the Secretary of Labor
in relation to the Occupational Health and Safety Administration's COVID
vaccine mandate. Dkt. 1 at 9–10 ¶¶ 61–65 ("First Cause of Action"). However,
the arguments in the motion for preliminary injunction, dkt. 38, brief in
support, dkt. 39, the reply brief, dkt. 51, relate solely to Ascension's actions, so
the Court does not address the claim against Secretary Walsh at this time.
IV.
Conclusion
Plaintiffs' motion for preliminary injunction, Dkt. [38], is denied.
Plaintiffs' request for an evidentiary hearing on imposition of a permanent
injunction is denied without prejudice. Magistrate Judge Garcia is asked to
conduct a status conference to enter an expedited case management plan.
SO ORDERED.
Date: 1/7/2022

Distribution:
Eric C. Bohnet
ATTORNEY AT LAW
[e-mail]
Brian L. McDermott
JACKSON LEWIS PC (Indianapolis)
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[e-mail]
Matthew McReynolds
Pacific Justice Institute
[e-mail]
David Peters
Pacific Justice Institute
[e-mail]
Patricia Anderson Pryor
JACKSON LEWIS, LLP
[e-mail]
Megan Ann Van Pelt
JACKSON LEWIS PC (Indianapolis)
[e-mail]

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