Paul Halczenko v. Ascension Health, Inc. ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1040
PAUL HALCZENKO, Doctor, on behalf of himself and all those
similarly situated,
Plaintiff-Appellant,
v.
ASCENSION HEALTH, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cv-02816 — James P. Hanlon, Judge.
____________________
ARGUED MAY 31, 2022 — DECIDED JUNE 23, 2022
____________________
Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
SCUDDER, Circuit Judge. Dr. Paul Halczenko lost his posi-
tion as a pediatric critical care specialist at St. Vincent Hospi-
tal in Indianapolis, Indiana, for failing to comply with the hos-
pital’s vaccine mandate. He objects to being vaccinated on re-
ligious grounds. Dr. Halczenko sued under Title VII for reli-
gious discrimination and sought a preliminary injunction re-
quiring the hospital to reinstate him to its pediatric intensive
2 No. 22-1040
care unit. The district court denied the motion, concluding not
only that Dr. Halczenko had failed to show irreparable injury
from losing his job, but also that Title VII afforded him ade-
quate remedies other than a preliminary injunction compel-
ling St. Vincent to reinstate an unvaccinated physician to its
pediatric ICU. We affirm.
I
A
Owned by Ascension Health, Inc., St. Vincent Hospital,
like many organizations, adopted a COVID-19 vaccine re-
quirement in the summer of 2021. Employees had until No-
vember 12, 2021 to get vaccinated unless they received a med-
ical or religious exemption. In reviewing requests for exemp-
tions, St. Vincent and Ascension considered, among other fac-
tors, the employee’s position and amount of contact with oth-
ers, the current health and safety risk posed by COVID, and
the cost and effectiveness of other safety protocols.
Until his suspension and ultimate termination, Dr.
Halczenko treated gravely ill children, including those suffer-
ing from or at risk of organ failure. He did this within a pedi-
atric ICU, and St. Vincent operates one of only three such
units in Indiana. St. Vincent denied Dr. Halczenko’s request
for religious accommodation on the ground that “providing
an exemption to a Pediatric Intensivist working with acutely
ill pediatric patients poses more than a de minim[i]s burden
to the hospital because the vaccine provides an additional
level of protection in mitigating the risk associated with
COVID.”
Dr. Halczenko and four other St. Vincent employees, in-
cluding two pediatric ICU nurses, responded by filing an
No. 22-1040 3
EEOC complaint alleging religious discrimination. All five
were suspended without pay in November 2021, and St. Vin-
cent terminated Dr. Halczenko’s employment in January
2022. Since losing his job, Dr. Halczenko has tried to find sim-
ilar work at other hospitals. He attributes his lack of success
to a non-compete agreement he has with St. Vincent, his pref-
erence not to move his family, and otherwise limited demand
at other hospitals for an unvaccinated physician in his area of
specialized care.
In November 2021 Dr. Halczenko and the four other St.
Vincent employees filed a putative class action seeking injunc-
tive relief and damages, alleging St. Vincent violated Title VII
by denying their religious exemption requests. St. Vincent
subsequently afforded the other named plaintiffs—a nurse
practitioner and three nurses, including two in the pediatric
ICU—religious accommodations. The record does not tell us
why or how St. Vincent differentiated between Dr. Halczenko
and these other employees. Regardless, Dr. Halczenko was
the only named party left seeking injunctive relief.
B
The district court denied preliminary relief, concluding
that Dr. Halczenko had shown neither irreparable harm nor
an inadequate remedy at law. Relying on E. St. Louis Laborers'
Loc. 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 704 (7th
Cir. 2005), the district court explained that “a permanent loss
of employment, standing alone, does not equate to irreparable
harm.” And “the possibility of reinstatement or back-pay at
the end of litigation,” the court added, “is usually enough to
show that preliminary injunctive relief is unnecessary.”
4 No. 22-1040
As to irreparable harm, Dr. Halczenko staked out a stark
litigating position in the district court. He submitted a sworn
declaration stating that his professional skills would dull so
rapidly and so extensively during any period of extended
leave that within six months of being suspended—that is, by
May 12, 2022—he would no longer be fit to work in a pediatric
ICU. He therefore insisted that court-ordered reinstatement
to his position at St. Vincent was the only way to avoid this
deterioration of skills.
We cannot discern why Dr. Halczenko seemed to chisel a
specific date into stone. After pressing the same point in his
appellate briefs, his counsel backed off the position at oral ar-
gument (held on May 31, 2022) when we observed that he was
essentially asking a federal court to order the reinstatement of
a physician who, by his own admission, had lost his compe-
tency to practice.
Regardless, the district court determined that Dr.
Halczenko’s alleged harm was speculative. The court was
“not convinced that without immediate injunctive relief,” Dr.
Halczenko—a highly trained physician with years of practice
experience—would be unable to continue his career as a pe-
diatric ICU physician, even if doing so required a touch of
training to freshen his skills. The district court also had trou-
ble accepting that Dr. Halczenko, though unvaccinated, was
unable to secure any other work as a physician during the
pendency of the litigation.
Dr. Halczenko now appeals the denial of his motion for a
preliminary injunction.
No. 22-1040 5
II
A
“A plaintiff seeking a preliminary injunction must estab-
lish [1] that he is likely to succeed on the merits, [2] that he is
likely to suffer irreparable harm in the absence of preliminary
relief, [3] that the balance of equities tips in his favor, and [4]
that an injunction is in the public interest.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). Dr. Halczenko proceeds
under Title VII of the Civil Rights Act of 1964, which prohibits
an employer from taking an adverse employment action be-
cause of a protected ground, including religion. See 42 U.S.C.
§ 2000e-2(a). This religious protection has a limit, however.
An employer need not grant an accommodation if it can
demonstrate that doing so would pose an “undue hardship
on the conduct of the employer’s business.” Id. § 2000e(j).
Title VII provides a range of remedies to successful plain-
tiffs, including reinstatement, back pay, front pay, compensa-
tory damages, and “any other equitable relief as the court
deems appropriate.” Id. §§ 1981a(b)(2); 2000e-5(g)(1). So too
may plaintiffs receive punitive damages upon a finding that
an employer engaged in a discriminatory practice with malice
or reckless indifference. See id. § 1981a(b)(1). Given this broad
remedial scheme, “an insufficiency in savings or difficulties in
immediately obtaining other employment—external factors
common to most discharged employees and not attributable
to any unusual actions relating to the discharge itself—will
not support a finding of irreparable injury.” Sampson v. Mur-
ray, 415 U.S. 61, 92 n.68 (1974).
6 No. 22-1040
B
The district court was right to conclude that none of Dr.
Halczenko’s alleged harms are irreparable.
First, Dr. Halczenko continues to contend that because he
is only able to practice his pediatric critical care skills in a hos-
pital setting, he will “rapidly lose his skills to the point that he
will be unable to practice as a pediatric critical care specialist”
if not reinstated by May 2022. Despite these contentions, Dr.
Halczenko did not move to expedite his appeal. And now, of
course, we are beyond his self-assessed May 2022 deadline.
Taking Dr. Halczenko at his word, an injunction now would
do nothing to prevent this alleged harm. See Winter, 555 U.S.
at 20 (requiring that a plaintiff be “likely to suffer irreparable
harm in the absence of preliminary relief”) (emphasis added).
Even more, though, and like the district court, we have a hard
time seeing this alleged harm as anything but speculative—
too much so to warrant the extraordinary remedy of prelimi-
nary injunctive relief.
To be sure, we have recognized that “there might be some
basis for a finding of irreparable injury” for “a deterioration
in professional skills pending the outcome of the litigation.”
Dos Santos v. Columbus-Cuneo-Cabrini Med. Ctr., 684 F.2d 1346,
1350 (7th Cir. 1982). But we have yet to encounter a fact pat-
tern where a plaintiff made that showing. Rather, we have
consistently concluded that such alleged harm is too specula-
tive to be irreparable. See, e.g., id. (“[P]laintiff has neither al-
leged nor proven an atrophy in her skills.”); Bedrossian v.
Northwestern Mem’l Hosp., 409 F.3d 840, 846 (7th Cir. 2005)
(“We have consistently held that physicians are awarded no
special treatment … even when, like Bedrossian, they assert
that termination will cause a ‘deterioration in skills.’”).
No. 22-1040 7
Just so here. Dr. Halczenko has not proven a deterioration
in skills that could only be prevented by the issuance of an
injunction. Speculation about how his skills may deteriorate
during the pendency of the litigation is insufficient, especially
when Dr. Halczenko’s contention comes without regard to his
extensive training and past experience or an explanation for
why a training course or two would fail to position him to
resume active practice in a pediatric ICU.
Even if aspects of this alleged harm somehow came to
pass, Congress has provided adequate remedies in Title VII
such that a preliminary injunction is not warranted. Title VII
itself provides courts with substantial equitable authority to
craft remedial measures, including ordering training pro-
grams. See, e.g., Patzer v. Bd. of Regents of Univ. of Wisconsin
Sys., 763 F.2d 851, 854 n.2 (7th Cir. 1985) (“Title VII authorizes
any equitable remedies the court deems appropriate.”). And
if Dr. Halczenko’s skills have so dulled that he must change
to a less lucrative specialty, “[l]ost future earning capacity is
a nonpecuniary injury for which plaintiffs may be compen-
sated under Title VII.” Williams v. Pharmacia, Inc., 137 F.3d 944,
953 (7th Cir. 1998).
Second, Dr. Halczenko contends that he will be irreparably
harmed because he faces an unusually difficult job search. The
“CMS vaccine mandate,” he advances, “puts legal and eco-
nomic pressure on healthcare providers to only hire vac-
cinated individuals.” Perhaps. But career jeopardy alone does
not amount to irreparable harm. See, e.g., E. St. Louis, 414 F.3d
at 704 (“A permanent loss of employment, standing alone,
does not equate to irreparable harm.”); Dos Santos, 684 F.2d at
1349 (“Under these circumstances it is irrelevant that plaintiff
8 No. 22-1040
claims she may be unable to find other employment as an an-
esthesiologist in the Chicago area.”).
Third, Dr. Halczenko urges us to adopt a presumption of
irreparable harm in Title VII religious discrimination cases,
much like he sees the law do with Free Exercise Clause claims.
See, e.g., Joelner v. Vill. of Washington Park, 378 F.3d 613, 620
(7th Cir. 2004). This position likewise misses the mark.
“[U]nless the statute under which he is suing excuses a show-
ing of irreparable harm,” “[i]n every case in which the plain-
tiff wants a preliminary injunction he must show that he has
‘no adequate remedy at law,’ and … that he will suffer ‘irrep-
arable harm’ if the preliminary injunction is not granted.” Ro-
land Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.
1984). Unlike statutes such as the Lanham Act, see 15 U.S.C.
§ 1116(a), Title VII does not excuse a showing of irreparable
harm. Our case law is clear on this point. See, e.g., Anderson v.
U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 477–78 (7th Cir. 2001).
The Fifth Circuit’s non-precedential decision in Sambrano
v. United Airlines, Inc., No. 21-11159, 2022 WL 486610 (5th Cir.
Feb. 17, 2022), provides Dr. Halczenko no refuge. Sambrano
involved United Airlines employees given the choice of re-
ceiving a COVID vaccine or being placed on indefinite unpaid
leave. The Fifth Circuit concluded that there existed an irrep-
arable harm that was “ongoing and cannot be remedied later:
[the employees] are actively being coerced to violate their re-
ligious convictions.” Id. at *6. Here, however, St. Vincent fired
Dr. Halczenko. He has therefore not suffered a similar harm.
Indeed, the Sambrano court took care to recognize that if
United had fired the plaintiffs, it “would preclude injunctive
relief.” Id. at *7; see also Together Emps. v. Mass Gen. Brigham
Inc., 19 F.4th 1, 8 (1st Cir. 2021) (“Moreover, as the deadline
No. 22-1040 9
for being vaccinated has passed, the appellants cannot point
to an ‘impossible choice’ as a special factor here; they have
already made their choices.”).
C
Because Dr. Halczenko has not shown an irreparable harm
or that legal remedies available under Title VII would be in-
adequate, we need not address the other injunction factors.
See Winter, 555 U.S. at 31–33. We nevertheless pause to com-
ment that, although the record before us is thin on the point,
it does not support an inference that St. Vincent’s actions were
motivated by an animus towards religion. Rather, it seems St.
Vincent ultimately chose to accommodate around 300 work-
ers who had applied for religious exemptions, including two
PICU nurses who joined Dr. Halczenko in bringing this law-
suit. That it chose not to do so for Dr. Halczenko raises ques-
tions about the reasons for the differential treatment. But it
does not suggest an institutional hostility towards religion—
at least not on the record before us.
Nothing in today’s opinion precludes Dr. Halczenko from
pursuing the point further in the district court. And with liti-
gation being a two-way street, Ascension and St. Vincent will
be able to offer their own explanation for affording nurses re-
ligious exemptions but choosing to terminate Dr. Halczenko.
For these reasons, we AFFIRM.