Robinson v. Children's Hospital of Boston

Filing 56

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS the Hospital's motion for summary judgment, D. 45.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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LEONTINE K. ROBINSON,
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Plaintiff,
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v.
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Civil Action No. 14-10263-DJC
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CHILDREN’S HOSPITAL BOSTON,
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Defendant.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

April 5, 2016

Introduction
Plaintiff Leontine K. Robinson (“Robinson”) alleges that Children’s Hospital Boston (the

“Hospital”) violated 42 U.S.C. § 2000e-2 and Mass. Gen. L. c. 151B when the Hospital
terminated her after she refused a flu vaccination because of her religious beliefs. D. 1. The
Hospital now moves for summary judgment. D. 45. For the reasons stated below, the Court
ALLOWS the motion.
II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute on any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect
the outcome of the suit under applicable law.” OneBeacon Am. Ins. Co. v. Commercial Union
Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (citation and internal quotation marks
omitted). The moving party bears the burden of demonstrating the absence of a genuine issue of
1

material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If that party meets its
burden, the non-moving party may not rest on the allegations or denials in her pleadings,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue
on which she would bear the burden of proof at trial, demonstrate that a trier of fact could
reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d
1, 5 (1st Cir. 2010).

“As a general rule, that requires the production of evidence that is

‘significant[ly] probative.’” Id. (quoting Anderson, 477 U.S. at 249) (alteration in original).
Although the Court gives the nonmoving party “the benefit of all reasonable inferences,” that
party “cannot rest on ‘conclusory allegations, improbable inferences, or unsupported speculation’
to defeat a motion for summary judgment.” Barry v. Moran, 661 F.3d 696, 703 (1st Cir. 2011)
(quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008)).
III.

Factual Background
The following material facts are drawn from the Hospital’s statement of undisputed

material facts, D. 47, and Robinson’s responses to that statement, D. 51-1.1

1

Robinson disputes the Hospital’s reliance on Dr. Sandora’s affidavit, D. 47-1, on the grounds
that the doctor, board certified in pediatrics and pediatric infectious diseases who serves as the
Hospital’s Epidemiologist and Medical Director for Infection Prevention and Control, lacks
personal knowledge or the foundation to provide expert testimony regarding the flu vaccine.
See, e.g., D. 51-1 ¶ 2. The Court disagrees where the affidavit reveals that Dr. Sandora’s
statements are based on personal knowledge and/or there is sufficient basis for his expert
opinion. Velázquez-García v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 18 (1st Cir.
2007) (stating that where an affidavit contains relevant first-hand information, it is competent to
support summary judgment, even if self-serving); Fraser & Wise, P.C. v. Primarily Primates,
Inc., 966 F. Supp. 63, 69 (D. Mass. 1996) (noting that “[t]o the extent an affiant is a qualified
expert, her testimony need not be based on personal knowledge”); Fed. R. Civ. P. 56(c)(4).
Robinson also objects to some of the Hospital’s statements of fact, but fails to cite to the record
to show a disputed issue as to that statement of fact exists. See, e.g., D. 51-1 ¶ 17 (Robinson’s
response of “Objection, unsupported” with no record citation). Unless otherwise noted, the
Court deems those facts admitted. Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.
2003); D. Mass. Local R. 56.1 (requiring that a “party opposing the motion shall include a
concise statement of the material facts of record as to which it is contended that there exists a
2

A.

The Hospital Implements a Flu Vaccination Policy

The Hospital is a non-profit teaching hospital affiliated with Harvard Medical School. D.
47 ¶ 1. The Hospital’s patient population includes some of the most critically ill infants, children
and adolescents in the world. Id. ¶ 2. Even in healthy infants and children, the influenza virus
can be fatal and the risk of infection and fatality is higher within the Hospital’s patient
population. Id. ¶ 4.
The American Academy of Pediatrics strongly recommends the vaccination of hospital
personnel. Id. ¶ 14. In 2015, it reaffirmed its stance, stating that mandatory immunization of
health care workers is ethical and necessary to benefit the health of employees, patients and
community members. Id. ¶ 15. Other medical organizations also advocate for mandatory annual
influenza immunizations for health care workers. Id. ¶ 16. They include the Centers for Disease
Control and Prevention, American Academy of Family Physicians, American Hospital
Association, Society for Healthcare Epidemiology of America, Infectious Diseases Society of
America, Pediatric Infectious Diseases Society, Association for Professionals in Infection
Control and Epidemiology Inc. and American Public Health Association. Id.
The Massachusetts Department of Public Health (“DPH”) strongly encourages
vaccination among personnel who work at Massachusetts hospitals.

Id. ¶ 8.

In 2010, to

encourage vaccination, DPH began to require hospitals to track and report the influenza
vaccination rates of all hospital staff.

Id. ¶ 9.

DPH also required hospitals to offer the

vaccination to all personnel for free. Id. ¶ 10.

genuine issue to be tried, with page references to affidavits, depositions and other
documentation” and noting that “material facts of record set forth in the statement required to be
served by the moving party will be deemed for purposes of the motion to be admitted by
opposing parties unless controverted by the statement required to be served by opposing
parties”).
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In response to DPH’s new policy, the Hospital decided in 2011 to require all persons who
work in or access patient-care areas to be vaccinated against the influenza virus to achieve the
safest possible environment and to ensure the highest possible care for its patients. Id. ¶¶ 11, 17.
The Hospital’s goal was to get as close to 100% of its health care workers vaccinated as possible.
Id. ¶ 18. To achieve that goal, the Hospital’s vaccination requirement extended not only to
employees, but to anyone affiliated with the Hospital who accessed patient areas, including
volunteers, contractors and health care providers with Hospital treating privileges. Id. ¶ 19.
Under the Hospital’s policy, the only persons exempt from vaccination were those for
whom the influenza vaccine posed a serious health risk. Id. ¶ 20; D. 51-1 ¶ 20. The Hospital did
not exempt those who objected on religious grounds because it concluded that additional
exemptions would increase the risk of transmission. D. 47 ¶¶ 21, 23; D. 51-1 ¶¶ 21, 23. The
Hospital did accommodate individual requests based on religious concerns to receive a pork-free
(gelatin-free) vaccine. D. 47 ¶ 22.
B.

Robinson Refuses the Influenza Vaccine

Robinson has worked at the Hospital since 1995. D. 47 ¶ 24; D. 51-1 ¶ 24. She has been
an administrative associate or served in a similar role in the emergency department. D. 47 ¶ 25;
D. 51-1 ¶ 25. Robinson was typically one of the first Hospital employees to interact with
patients and their family members when they arrived in the emergency department. D. 47 ¶ 26.
Robinson handled intake and registration and affixed patient identification bracelets. D. 47 ¶¶
27, 29; D. 51-1 ¶¶ 27, 29. These duties required her to touch and sit in close proximity to
patients. D. 47 ¶¶ 28-29; D. 51-1 ¶¶ 28-29. Because of this close physical proximity, for
patients with highly contagious illnesses, Robinson would affix their bracelets on their
paperwork instead. D. 47 ¶ 30; D. 51-1 ¶ 30.

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In July 2011, the Hospital announced that except for those exempt for medical reasons,
all employees and others working in patient-care areas had to be vaccinated for influenza. D. 47
¶ 33.

In September 2011, the Hospital reminded its employees of the policy.

Id. ¶ 36.

Robinson received the reminder. Id. ¶ 37; D. 51-1 ¶ 37. Separately, that same month, Robinson
received a tetanus vaccination. D. 47 ¶ 35; D. 51-1 ¶ 35.
On November 1, 2011, Robinson contacted Kevin Muhammed (“Muhammed”), who is
associated with the Nation of Islam’s Ministry of Health. D. 47 ¶¶ 38-39; D. 51-1 ¶¶ 38-39; D.
47-7. The Ministry of Health is a department within the Nation of Islam that deals with its
followers’ health concerns. D. 47 ¶ 40; D. 51-1 ¶ 40. Robinson requested a vaccination
exemption letter and Muhammed sent her forms for her use. Id. ¶¶ 41-42.
On November 8, 2011, Robinson’s supervisor Jason Dupuis (“Dupuis”) reminded
Robinson and others that the deadline to receive the influenza vaccine was December 1, 2011.
Id. ¶ 43. Robinson responded that she was declining the vaccine on religious grounds. Id. ¶ 44.
Dupuis replied that the only exemption was for medical reasons and referred Robinson to the
Hospital’s occupational health department for further information. Id. ¶ 45.
On November 15, 2011, Robinson emailed Muhammed to ask whether influenza
vaccinations included pork byproducts. D. 47 ¶ 46; D. 51-1 ¶ 46; D. 47-10. Muhammed stated
that some vaccines contained pork byproduct and suggested that Robinson get a list of the
ingredients in the specific vaccine administered. D. 47 ¶ 47; D. 51-1 ¶ 47; D. 47-10.
C.

Robinson Seeks an Alternative to the Vaccine

On November 16, 2011, Robinson spoke with Lucinda Brown (“Brown”), the Hospital’s
Director of Occupational Health, about her objection to the vaccine. D. 47 ¶ 53. Robinson told
Brown that she would not take the vaccine because she was Muslim and the vaccine had pork

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byproduct. Id. ¶ 54; D 47-11. She also stated that she believed many vaccines are contaminated
and she did not feel comfortable receiving the influenza vaccine. Id. ¶ 60; D. 47-11. Later, at
her deposition, Robinson explained that in the same month she met with Brown, she separately
learned that her religion had a moratorium on all vaccinations. D. 47 ¶ 112; D. 51-1 ¶ 112.
Brown offered Robinson a non-gelatin influenza vaccine but Robinson declined it. D. 47
¶¶ 55-56; D. 51-1 ¶¶ 55-56. Brown asked why Robinson was willing to take a tetanus vaccine in
September 2011, but not the influenza one. Id. ¶ 61. Robinson responded that she had taken the
tetanus shot because she was told that that vaccine was mandatory and that failure to take it
would be grounds for termination. Id. ¶ 62. Brown told Robinson that the influenza vaccine was
also mandatory and that the Hospital would terminate her if she refused. Id. ¶ 63. Brown,
however, also stated that if Robinson found a position outside of patient care, she would not be
required to take the influenza vaccine. Id. ¶ 64.
A few days after the meeting, Christine Cadegan (“Cadegan”), a nurse in the
occupational health department, reiterated that the Hospital could offer a pork-free vaccine and
offered Robinson information about its contents. D. 47 ¶¶ 57-58; D. 51-1 ¶¶ 57-58. Robinson
did not ask for a list of ingredients because she had no intention of taking the pork-free vaccine.
D. 47 ¶ 59; D. 51-1 ¶ 59.
On November 21, 2011, Dupuis reminded Robinson and others of the December 1, 2011
deadline. D. 47 ¶ 65; D. 51-1 ¶ 65. Robinson responded that she was declining the influenza
vaccine because of her religious beliefs. D. 47 ¶ 66; D. 51-1 ¶ 66. She was also looking to
transfer to another position outside of patient care and encouraged him to contact her if he knew
of any positions. D. 47 ¶ 66; D. 51-1 ¶ 66. Dupuis replied he would see what he could find out
and stated he was hopeful an amenable solution could be found. D. 47 ¶ 67; D. 51-1 ¶ 67.

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On December 1, 2011, the day of the deadline, Robinson told Cadegan that she had a bad
allergic reaction to the influenza vaccine in 2007.

D. 47 ¶ 68; D. 51-1 ¶ 68.

Cadegan

encouraged Robinson to submit medical documentation about her allergic reaction in case it
supported a medical exemption. D. 47 ¶ 69; D. 51-1 ¶ 69. Cadegan granted Robinson a
temporary medical exemption pending review of her medical records. D. 47 ¶ 70; D. 51-1 ¶ 70.
On December 19, 2011, the occupational health department concluded that Robinson’s medical
history did not qualify her for a medical exemption. D. 47 ¶ 71; D. 51-1 ¶ 71.
On December 21, 2011, Robinson met with Carolyn Stetson (“Stetson”), the Hospital’s
Director of Employee Relations. D. 47 ¶ 72; D. 51-1 ¶ 72; D. 47-15. Robinson requested the
opportunity to explore roles in non-patient-care areas of the Hospital. D. 47 ¶ 73; D. 51-1 ¶ 73;
D. 47-15. Specifically, she asked for an interview for a medical record clerk position for which
she had already applied. D. 47 ¶ 74; D. 51-1 ¶ 74; D. 47-15. Robinson also asked that she be
permitted to use her accrued earned time from December 22, 2011 until February 3, 2012 to find
employment outside the Hospital. D. 47 ¶ 75; D. 51-1 ¶ 75; D. 47-15.
During the meeting, Stetson called one of her employees and instructed her to assist
Robinson’s job search. D. 47 ¶ 82; D. 51-1 ¶ 82. That employee told Robinson that she would
do whatever she could to help. D. 47 ¶ 84; D. 51-1 ¶ 84. The Hospital granted Robinson’s
request to use her earned time to look for another position. D. 47 ¶ 79; D. 51-1 ¶ 79. The
Hospital also gave Robinson an opportunity to interview for the medical records clerk position,
but Robinson was not hired for the position. D. 47 ¶¶ 85-86; D. 51-1 ¶¶ 85-86.
In the period after Robinson’s request for an interview, there were no publicly posted
positions outside of patient care for which Robinson was qualified. D. 47 ¶ 87; D. 51-1 ¶ 87.
Robinson also did not know of any non-patient-care position for which she was qualified but that

7

were not publicly posted. D. 47 ¶ 88; D. 51-1 ¶ 88. Robinson did not apply for any other
Hospital position after her request for an interview for the medical records position. D. 47 ¶ 89;
D. 51-1 ¶ 89.
Because Robinson was unable to find another position by the end of her leave of absence,
the Hospital offered her an additional two weeks of leave. D. 47 ¶ 90; D. 51-1 ¶ 90. Robinson
accepted the offer. D. 47 ¶ 90; D. 51-1 ¶ 90. When the two-week period ended, the Hospital
treated Robinson’s termination as a voluntary resignation, which left her eligible to re-apply for
other Hospital positions in the future. D. 47 ¶ 91; D. 51-1 ¶ 91.
IV.

Procedural History
Robinson filed this lawsuit on February 4, 2014. D. 1. She asserts two claims against the

Hospital: (1) religious discrimination under 42 U.S.C. § 2000e-2 and (2) religious discrimination
under Mass. Gen. L. c. 151B. Id. at 4-5. The Hospital has now moved for summary judgment.
D. 45. The Court heard the parties on the motion and took the matter under advisement. D. 55.
V.

Discussion
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against any employee on the basis of religion. 42 U.S.C. § 2000e-2. Religion includes “all
aspects of religious observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee’s . . . religious observance or
practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j).
The First Circuit applies “a two-part framework in analyzing religious discrimination
claims under Title VII.” Sánchez-Rodríguez v. AT & T Mobility Puerto Rico, Inc., 673 F.3d 1,
12 (1st Cir. 2012). First, the plaintiff must make a “prima facie case that a bona fide religious
practice conflicts with an employment requirement and was the reason for the adverse

8

employment action.” Id. (quoting Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st
Cir. 2004)) (internal quotation mark omitted). Second, once the plaintiff has established her
prima facie case, the burden shifts to the employer to show that “it offered a reasonable
accommodation or that a reasonable accommodation would be an undue burden.” Id. (emphasis
in original).
Neither party cited a case directly on point. In Chenzira v. Cincinnati Children’s Hospital
Medical Center, No. 1:11-cv-00917, 2012 WL 6721098, at *4 (S.D. Ohio Dec. 27, 2012), the
court denied a hospital’s motion to dismiss a terminated worker’s Title VII religious
discrimination claim. The employee had refused to take an influenza vaccine because of her
veganism, and the court found “it plausible that [she] could subscribe to veganism with a
sincerity equating that of traditional religious views.” Id. The Chenzira court, however, was
careful to state that its ruling “in no way addresses what it anticipates as Defendant’s justification
for its termination of Plaintiff, the safety of patients at Children’s Hospital. At this juncture there
simply is no evidence before the Court regarding what, if any, contact Plaintiff might have with
patients, and/or what sort of risk her refusal to receive a vaccination could pose in the context of
her employment.” Id. at *5.
Other cases also have not squarely confronted an employer’s Title VII obligations in light
of mandatory influenza vaccination policies. In Virginia Mason Hospital v. Washington State
Nurses Ass’n, 511 F.3d 908, 911 (9th Cir. 2007), a hospital implemented a mandatory influenza
immunization regime as a fitness requirement for all nurses and other employees. The nurses’
union filed a grievance and an arbitrator ordered that the mandatory immunization protocol be
rescinded based on his interpretation of the collective bargaining agreement. Id. In light of the
considerable deference for arbitral decisions and citing the “clearly established public policy

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requiring employers to bargain with their union-represented employees over conditions of
employment,” the Ninth Circuit upheld the arbitrator’s decision. Id. at 913, 917. In Edwards v.
Elmhurst Hospital Center., No. 11-cv-4693-RRM-LB, 2013 WL 839535, at *4 (E.D.N.Y. Feb.
15, 2013), report and recommendation adopted, 2013 WL 828667 (E.D.N.Y. Mar. 6, 2013), the
court dismissed a hospital worker’s Title VII claim because he failed to allege any adverse
employment action for his refusal of the influenza vaccination. In Zell v. Donley, 757 F. Supp.
2d 540, 541 (D. Md. 2010), where the plaintiff claimed that his employer violated Title VII for
terminating him because he refused a vaccination for religious reasons, the court did not address
the merits but held that the Title VII claims were equitably tolled.2
The Equal Employment Opportunity Commission (“EEOC”) has offered general
guidance on the issue. In an informal discussion letter responding to an unnamed party’s
inquiries, the EEOC’s Office of Legal Counsel wrote that “[f]acts relevant to undue hardship”
for a health care worker’s request for an exemption from employer-mandated vaccinations
“would presumably include, among other things, the assessment of the public risk posed at a
particular time, the availability of effective alternative means of infection control, and potentially
the number of employees who actually request accommodation.”3

The EEOC letter also

2

In Head v. Adams Farm Living, Inc., 775 S.E.2d 904, 906 (N.C. Ct. App. 2015), a Seventh-Day
Adventist alleged that her termination—for refusing to take the influenza vaccine—violated the
state’s public policy against religious discrimination, citing N.C. Gen. Stat. § 143–422.2. The
Court of Appeals of North Carolina affirmed summary judgment for the defendant because that
particular state statute, unlike Title VII, did not require employers to make a reasonable
accommodation of their employees’ religious beliefs. Id. at 909-10. In Friedman v. Southern
California Permanente Medical Group, 125 Cal. Rptr. 2d 663, 666 (Cal. Ct. App. 2002), the
plaintiff argued that his employer violated the California Fair Employment and Housing Act for
discriminating against him because he refused a mumps vaccine. The court affirmed dismissing
his claim because it concluded that veganism was not a religious creed under the state statute.
Id. at 665.
3

U.S. Equal Emp. Opportunity Comm’n, Informal Discussion Letter (Mar. 5, 2012),
http://www.eeoc.gov/eeoc/foia/letters/2012/religious_accommodation.html.
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addressed whether an employer that grants a religious accommodation excusing a health care
worker from a mandatory vaccination may impose additional infection control practices on the
worker, “such as wearing a mask.”4 The EEOC Office of Legal Counsel indicated that “such
practices” could be imposed for legitimate, non-discriminatory reasons and whether the
employer’s motivation for imposing additional infection control measures was discriminatory or
retaliatory “would turn on the facts of a given case.”5
The Hospital argues that Robinson’s claims fail for three independent reasons: (1) the
Hospital reasonably accommodated Robinson; (2) any accommodation would have been an
undue hardship; and (3) no reasonable jury could find that Robinson had a bona fide religious
belief that precluded vaccination. D. 46 at 7-18. Because the Court concludes that the Hospital
prevails on summary judgment on the first two grounds, it declines to address the third issue. As
the Hospital acknowledges, D. 46 at 14, “assessing the bona fides of an employee’s religious
belief is a delicate business” and a “quintessential” question of fact.

E.E.O.C. v. Unión

Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 5657 (1st Cir. 2002). “[T]hat no religious group espouses [the belief] or the fact that the religious
group to which the individual professes to belong may not accept [the] belief will not determine
whether the belief is a religious belief of the employee or prospective employee.” 29 C.F.R. §
1605.1. And although inconsistencies between a person’s conduct and her professed religious
beliefs may suggest insincerity, they also may reflect “an evolution in [the person’s] religious
views.” Unión Independiente, 279 F.3d at 57 & n.8. Accordingly, for summary judgment
purposes, the Court assumes that Robinson can establish a prima facie case that her refusal to
take the influenza vaccination is based on a sincerely held, bona fide religious belief.
4

Id.

5

Id.
11

A.

The Hospital Reasonably Accommodated Robinson

Title VII requires employers “to accommodate, within reasonable limits, the bona fide
religious beliefs and practices of employees.” Sánchez-Rodríguez, 673 F.3d at 12 (quoting
Unión Independiente, 279 F.3d at 55) (internal quotation mark omitted). Claims of religious
discrimination under Chapter 151B “ha[ve] been interpreted largely to mirror Title VII” claims.
Cloutier, 390 F.3d at 131 (citing Mass. Gen. L. c. 151B, § 4(1A) that defines a reasonable
accommodation as one that “shall not cause undue hardship in the conduct of the employer’s
business”). “[C]ases involving reasonable accommodation turn heavily upon their facts and an
appraisal of the reasonableness of the parties’ behavior.” Id. (citation and internal quotation
marks omitted). In analyzing whether an employer provided a reasonable accommodation, “a
court should take a ‘totality of the circumstances’ approach and consider whether the
combination of accommodations provided by the employer was reasonable.” Id. at 12 (emphasis
in original).
Importantly, “[b]y its very terms,” Title VII directs that “any reasonable accommodation”
by the employer is sufficient to meet its legal obligation. Ansonia Bd. of Educ. v. Philbrook, 479
U.S. 60, 68 (1986). An employee is “not entitled to any specific accommodation . . . , only a
reasonable one.” O’Brien v. City of Springfield, 319 F. Supp. 2d 90, 105 (D. Mass. 2003). To
hold otherwise would give the employee “every incentive to hold out for the most beneficial
accommodation” even where an employer offers a reasonable accommodation. Philbrook, 479
U.S. at 69. Finally, once the employer has reasonably accommodated the employee’s religious
needs, the inquiry is over. Id. at 68 (concluding that “where the employer has already reasonably
accommodated the employee’s religious needs, the statutory inquiry is at an end”). An employer

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“need not further show that each of the employee’s alternative accommodations would result in
undue hardship.” Id.
Courts have held that encouraging a plaintiff to transfer to another position within the
company and offering her assistance toward that effort constitute a reasonable accommodation.
For example, in Bruff v. Northern Mississippi Health Services, Inc., 244 F.3d 495, 499 (5th Cir.
2001), a counselor who worked for a non-profit hospital that provided counseling to employees
from local businesses alleged religious discrimination under Title VII. A patient informed Bruff
that she was a lesbian and requested counseling to improve her relationship with her partner. Id.
at 497. Bruff declined to counsel the patient on her same-sex relationship, but offered to counsel
her on other matters. Id. The patient complained, and Bruff explained to her employer that
counseling gay patients about their relationships conflicted with her religious beliefs. Id. Bruff’s
employer determined that accommodating her request not to counsel on gay relationships was
not feasible and placed her on leave without pay. Id. at 498. Her employer ultimately terminated
her and a jury found in Bruff’s favor. Id. at 499.
The Fifth Circuit reversed and held that Bruff’s employer had reasonably accommodated
her because it gave her thirty days and directed its in-house employment counselor to find
another hospital position where the likelihood of further conflict with her religious beliefs would
be reduced. Id. at 501. First, Bruff had declined to apply for any non-counselor positions or take
tests that would have identified whether positions she did not consider would have been of
interest. Id. at 499, 503. Second, although Bruff had applied to a counselor opening, her
employer was not obligated to hire her for that position because a candidate with better
credentials had applied. Id. at 498, 502. Third, Bruff did not apply when a second counselor
position became available. Id. at 498, 502. The Fifth Circuit rejected Bruff’s explanation—that

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she did not apply because she believed her employer would not seriously consider her—as “pure
speculation” and stressed that “[a]n employee has a duty to cooperate in achieving
accommodation of his or her religious beliefs, and must be flexible in achieving that end.” Id. at
503.

Finally, although it was unclear from the record whether the employer’s pastoral

counseling department had an opening, the court faulted Bruff for failing to consider a transfer
there because she speculated about a personal conflict with that department’s director and
refused to consider that option before the existence of a vacancy could be explored. Id. at 50203.
In Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir.
2012), the Eleventh Circuit reached the same result on a record similar to Bruff. There, the court
concluded that the employer had reasonably accommodated the plaintiff, who objected to
counseling those in same-sex relationships, because the employer “encouraged her to obtain new
employment with the company and offered her assistance in obtaining a new position.” Id. The
employer had no counseling positions in the Atlanta area, where the plaintiff was based, and the
plaintiff did not apply for other positions. Id. That the employer should have considered “the
most obvious accommodation”—transfer to a non-counseling position—was irrelevant.

Id.

(citation and internal quotation mark omitted). Her employer was “only obligated to offer her
some reasonable accommodation,” not her preferred accommodation. Id. (citing Philbrook, 479
U.S. at 68). The Eleventh Circuit also noted that the employer decided to lay her off rather than
to terminate her, which allowed her to retain her tenure if the employer rehired her within a year.
Id. at 1294-95.
Here, the Hospital employees worked with Robinson several times to address her
objection to the vaccine. First, when Robinson told the Hospital that she allegedly had an

14

allergic reaction to a flu shot in 2007, the Hospital encouraged her to seek a medical exemption
and granted her a temporary medical exemption while it reviewed her medical records. D. 47 ¶¶
68-71. Second, the Hospital met with Robinson and permitted her to attempt to find a nonpatient-area position so she would remain employed by the Hospital but be relieved of the
mandatory vaccination policy. Id. ¶¶ 72-73. As part of that effort, the Hospital arranged an
interview for her for a medical records clerk position, allowed Robinson to use her earned timeoff on a nearly two-month leave of absence to search for employment with other employers and
directed a human resources employee to assist Robinson’s job search. Id. ¶¶ 74-75, 79-85.
Third, when Robinson was unable to find another job by the end of her leave, the Hospital
offered her an additional two weeks, which she accepted. Id. ¶ 90. Finally, when that two-week
period ended, the Hospital deemed her termination a voluntary resignation to preserve her ability
to re-apply for other Hospital positions in the future. Id. ¶ 91.
Robinson argues that the Hospital should have done more to help her find a new position
at the Hospital. D. 50 at 6-8. Employers, however, are not obligated to create a position to
accommodate an employee’s religious beliefs. See Trans World Airlines, Inc. v. Hardison, 432
U.S. 63, 83 (1977) (stating that the employer “was not required by Title VII to carve out a
special exception to its seniority system in order to help [the plaintiff] to meet his religious
obligations”); Finnie v. Lee Cty., 907 F. Supp. 2d 750, 783-84 (N.D. Miss. 2012) (rejecting
plaintiff’s argument that her employer should have reasonably accommodated her by transferring
her to another position; the record showed no open position for which she was qualified); see
also Toronka v. Cont’l Airlines, Inc., 411 F. App’x 719, 725 (5th Cir. 2011) (stating that
“precedent is plain that an employer is not required to create a new job type to accommodate a
disabled employee” under the American with Disabilities Act (“ADA”)); Hoskins v. Oakland

15

Cty. Sheriff’s Dep’t, 227 F.3d 719, 730 (6th Cir. 2000) (rejecting the plaintiff’s reasonable
accommodation argument under the ADA because “an employer’s duty to reassign an otherwise
qualified disabled employee does not require that the employer create a new job in order to do
so”).
As Robinson also acknowledges, other than the medical records position, she did not
apply for anything else. D. 47 ¶ 89; D. 51-1 ¶ 89. Although the Hospital had a duty to
accommodate her reasonably, Robinson also had a duty to cooperate. Philbrook, 479 U.S. at 69
(noting that “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”) (citation
and internal quotation marks omitted); Bruff, 244 F.3d at 503; E.E.O.C. v. Caribe Hilton Int’l,
597 F. Supp. 1007, 1012 (D.P.R. 1984) (noting that under an employee’s duty to cooperate, an
employee is “entitled to refuse any offer of new employment or other accommodation if he so
desires, but he simply, then, cannot claim that the [employer] has failed to satisfy his needs”).
The Court concludes that the combination of the Hospital’s efforts—allowing Robinson to seek a
medical exemption, providing her reemployment resources, granting Robinson time to secure
new employment and preserving her ability to return to the Hospital by classifying her
termination as a voluntary resignation—amounted to a reasonable accommodation under Title
VII and Chapter 151B.
B.

Granting Robinson’s Request Would Have Been an Undue Hardship

The Hospital argues that Robinson’s claim must fail for a separate reason because
granting her request—no vaccination while keeping her patient-care position—would have
created an undue hardship. D. 46 at 11-14. An accommodation constitutes an undue hardship
“if it would impose more than a de minimis cost on the employer.” Cloutier, 390 F.3d at 134

16

(citing Hardison, 432 U.S. at 84). Undue hardship can be both “economic costs, such as lost
business or having to hire additional employees to accommodate a Sabbath observer,” and “noneconomic costs, such as compromising the integrity of a seniority system” or loosening a
company’s dress code. Id. at 134-35 (concluding that to allow an employee to wear facial
jewelry in violation of her employer’s dress code despite her religion’s promotion of piercings is
an undue hardship because the employer loses control over its public image). Undue hardship
can also exist if the proposed accommodation would “either cause or increase safety risks or the
risk of legal liability for the employer.” E.E.O.C. v. Oak-Rite Mfg. Corp., No. 99-cv-1962-DFH,
2001 WL 1168156, at *10 (S.D. Ind. Aug. 27, 2001). “Title VII does not require employers to
test their safety policies on employees to determine the minimum level of protection needed to
avoid injury.” Id. at *14.
In Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1383 (9th Cir. 1984), Chevron adopted
a policy to comply with state occupational safety standards. The policy required all employees
with potential exposure to toxic gases, including all machinists like the plaintiff, to shave any
facial hair that prevented a tight face-seal when wearing a respirator. Id. The plaintiff informed
Chevron that he could not comply with its policy because his religion forbids cutting or shaving
any body hair. Id. Chevron suspended the plaintiff without pay and sought to find him another
job. Id. After going back and forth about alternative jobs, the plaintiff ultimately accepted a
lower-paying job with different responsibilities. Id.
The Ninth Circuit held that Chevron had established that retaining the plaintiff as a
machinist unable to use a respirator would have imposed an undue hardship. Id. To require
Chevron to retain the plaintiff as a machinist without a respirator would have forced Chevron to
revamp its duty assignments to accommodate whether particular assignments led to potential

17

toxic exposure. Id. at 1384. The plaintiff’s coworkers also would have been required “to assume
his share of potentially hazardous work.” Id. “Title VII does not require Chevron to go so far.”
Id.
In Kalsi v. New York City Transit Authority, 62 F. Supp. 2d 745, 747-48 (E.D.N.Y.
1998), aff’d, 189 F.3d 461 (2d Cir. 1999), the transit authority fired the plaintiff because he
refused to wear a hard hat while working as a subway car inspector. The plaintiff, however,
alleged that, as a matter of religion, he could not cover his turban and sued for religious
discrimination under Title VII. Id.
The court held that accommodating the plaintiff’s desire to be hat-free constituted an
undue hardship and granted summary judgment against him. Id. at 759. First, the plaintiff’s
recommendations to make the work safe for him were “significant modifications” at a cost that
could not be described as de minimis.

Id. at 759.

Second, the transit authority faced

“substantial” “potential costs” if the plaintiff suffered from a catastrophic injury from being hatfree. Id. at 760. Third, the potential for injury extended to other employees as well because car
inspectors did not work alone. Id. To have the transit authority bear that risk was an undue
burden. Id. Finally, to allow the plaintiff to take unpaid breaks when his work shifted to hatrequiring tasks would be “unworkable,” because “the great majority” of an inspector’s tasks
required a hard hat and the proposal would require a full-time substitute to be immediately
available to replace him. Id.
The Hospital contends that granting Robinson’s request would have been an undue
hardship because it would have increased the risk of transmitting influenza to its already
vulnerable patient population. D. 46 at 13-14. On this record, the Court agrees. Health care
employees are at high risk for influenza exposure and can be source of the fatal disease because

18

of their job. D. 47 ¶¶ 5-6. Numerous medical organizations support mandatory influenza
vaccination for health care workers.

Id. ¶¶ 14-16.

The medical evidence in this record

demonstrates that the single most effective way to prevent the transmission of influenza is
vaccination. Id. ¶ 7; Virginia Mason Hosp., 511 F.3d at 913 (noting “the impressive list of
health authorities and experts who recommend that health care workers be immunized because
they are in a highly contagious environment and deal with patients who are at high risk of
contracting the flu”). In the same vein, the Department requires all licensed state hospitals to
provide the influenza vaccine to their employees at no cost and to report their compliance.6 D.
47 ¶¶ 8-11; 105 C.M.R. § 130.325(E), (I).
Here, in light of the state’s requirements and the Hospital’s understanding of the medical
consensus on influenza vaccination, the Hospital decided to achieve the safest possible

6

The Court is aware that 105 C.M.R. § 130.325(F)(1) provides that a hospital “shall not require
an employee to receive an influenza vaccine . . . if: (a) the vaccine is medically contraindicated,
which means that administration of influenza vaccine to that individual would likely be
detrimental to the individual’s health; (b) vaccination is against the individual’s religious beliefs;
or (c) the individual declines the vaccine.” Robinson does not assert a claim based on 105 CMR
§ 130.325 and the regulation does not affect the Court’s analysis of the Hospital’s Title VII
liability. As discussed above, Title VII protects an employee from religious discrimination but
permits an employer’s policy if the employer offers a reasonable accommodation or
demonstrates that such accommodation would create an undue hardship. Cloutier, 390 F.3d at
133.
The Court is also aware that DPH announced proposed amendments to 105 CMR § 130.325 in
November 2014. In a memorandum explaining the amendments, DPH recognized “that there is
still some confusion regarding whether a facility may adopt a more stringent requirement (i.e.,
require its workers to receive an annual influenza vaccination without an exception for voluntary
declinations). [DPH] is proposing to amend the existing language to make explicit that a facility
may do so—in other words, that the regulations do not prohibit a widespread mandate at the
option of each facility.” Memorandum from Madeleine Biondolillo, M.D., Associate
Commissioner (Nov. 12, 2014), at 3, http://www.mass.gov/eohhs/docs/dph/legal/hcwimmunization/phc-memo-nov-12-2014.doc. As a result, one amendment seeks to add the
following language to 105 C.M.R. 130.325(F): “Nothing in [the regulation] precludes a hospital
from requiring all personnel to receive vaccination for influenza.” Proposed Changes, at 2,
http://www.mass.gov/eohhs/docs/dph/legal/hcw-immunization/proposed-amendments-105-cmr130.docx.
19

environment for its patients. D. 47 ¶ 17. With the exception of those with medical issues, the
Hospital sought as close to total compliance as possible by requiring all persons who work in or
access patient-care areas to be vaccinated. D. 47 ¶¶ 18-19. Robinson worked in a patient-care
area. D. 47 ¶¶ 24-25; D. 51-1 ¶¶ 24-25. She worked closely with patients, regularly sitting near
or touching them as she worked on their admission to the Hospital. D. 47 ¶¶ 28-29; D. 51-1 ¶¶
28-29. Had the Hospital permitted her to forgo the vaccine but keep her patient-care job, the
Hospital could have put the health of vulnerable patients at risk. To allow Robinson to avoid
relatively more vulnerable patients and not others would have been unworkable as well. It would
have forced the Hospital to arrange its work flow around uncertain factors. Bhatia, 734 F.2d at
1384. On this record, accommodating Robinson’s desire to be vaccine-free in her role would
have been an undue hardship because it would have imposed more than a de minimis cost.7
Cloutier, 390 F.3d at 134.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS the Hospital’s motion for summary

judgment, D. 45.
So Ordered.
/s/ Denise J. Casper
United States District Judge

7

“Although the Massachusetts undue hardship standard [under Mass. Gen. L. c. 151B] is
‘notably different’ and allows for slightly broader religious protection, the two share substantial
common ground.” Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against
Discrimination, 450 Mass. 327, 337 (2008) (quoting Pielech v. Massasoit Greyhound, Inc., 441
Mass. 188, 196 (2004)). The Massachusetts statute’s “list of circumstances that constitute undue
hardship” recognizes “a compromise of the health and safety of the public.” Brown v. F.L.
Roberts & Co., 452 Mass. 674, 684 (2008) (citing Massachusetts Bay Transp. Auth., 450 Mass.
at 336); Mass. Gen. L. c. 151B § 1A. For the same reasons stated above, Robinson’s state law
claim fails as well.
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