Doctor Meets 7th Cir. Skepticism in Bid for Vaccine Exemption

A Seventh Circuit panel signaled that it’s unwilling to help a doctor get an immediate court order forcing an Indiana hospital to rehire him despite his religion-based refusal to get vaccinated against Covid-19.

One judge during oral argument Tuesday at the U.S. Court of Appeals for the Seventh Circuit in Chicago homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

A ruling against Halczenko would strengthen the legal barriers that so far have prevented workers from obtaining preliminary injunctions against private employers that denied their requests for exceptions to Covid-19 vaccine mandates.

Halczenko rebuffed the hospital’s inoculation requirement based on his religious objection to the use of cell lines derived from aborted fetuses in the development or testing of the vaccines. After the hospital rejected his request for an exemption, Halczenko brought a proposed class action against Ascension and the hospital for religious discrimination under Title VII of the 1964 Civil Rights Act.

The hospital put Halczenko on leave and later fired him, although it recalled other religious objectors.

A district judge denied his request for a court order, sparking his appeal to the Seventh Circuit.

‘All Speculative’

The doctor argued in a brief that the deterioration of his specialized skills would rob him of his career as a pediatric critical care physician if he wasn’t working by mid-May.

At oral argument Tuesday, Judge Thomas Kirsch asked why Halczenko’s appeal isn’t moot in light of his own deadline passing.

That timeline was an estimate, said the doctor’s lawyer, William Bock of Kroger Gardis & Regas LLP.

“And so that’s a determination that obviously he may not know until he gets back in the game. It’s like a baseball player that’s been kept out of batting practice,” Bock said.

“But isn’t that the problem, though, with the irreparable harm argument?” Kirsch asked. “I mean, he doesn’t know. If it’s all speculative, how is it irreparable harm?”

Halczenko would lose his job skills within the one to two years it would take for his case to go to trial, Bock replied.

Nurse Recall

Judge Michael Scudder contrasted Halczenko’s termination with the hospital’s recall of nurses, saying that “there may be some reason he wasn’t brought back, but what I’m getting at is that it wasn’t his religion, it may be some other reason.”

Bock disagreed, insisting it was the doctor’s religion.

“I get the theory, but how do you align that with the nurses?” Scudder replied.

The hospital overcame its religious prejudice against the nurses, Bock said. Moreover, bringing back the nurses “completely destroyed” the hospital’s justification for refusing to grant Halczenko’s accommodation, namely that it was too much of a health risk, he said.

Circuit Precedent

Judge Amy St. Eve focused on Halczenko’s claim that he was also harmed by the hospital’s attempt to coerce him to take a vaccine over his religious objections.

“Is that the type of harm that this circuit has ever recognized in a Title VII case?” St. Eve asked. “You’re not bringing a free exercise or other religious-based claim. This is purely Title VII employment discrimination.”

The Fifth Circuit recently ruled in a Title VII case, Sambrano v. United Airlines, that coercion to get vaccinated in the face of religious objections is irreparable harm that could merit a preliminary injunction, Bock said.

But Ascension’s lawyer, Patricia Anderson Pryor of Jackson Lewis PC, pointed to the Fifth Circuit’s distinction between the irreparable harm of ongoing coercion against existing employees and the fixable harms from a termination, which can be addressed by back pay awards and other Title VII remedies.

“That’s exactly what we have here,” Pryor said. “The termination has already occurred.”

The case is Halczenko v. Ascension Health, 7th Cir., No. 22-01040, oral argument 5/31/22.