The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THEODORE FEDEROFF, et al., No. 4:21-CV-01903
Plaintiffs, (Chief Judge Brann)
v.
GEISINGER CLINIC, et al.,
Defendants.
MEMORANDUM OPINION
NOVEMBER 23, 2021
Federal courts have tremendous power, but limited jurisdiction. Federal
judges are not entitled to intervene any time that parties believe they have been
treated unfairly. We wear robes, not crowns.
Our role is transcribed. For federal judges to provide relief, parties must first
show that they have an enforceable right. And if there’s no right, there can be no
remedy.
Believing that they have been treated unfairly, some 100 unvaccinated
Geisinger Health Employees have attempted to put the efficacy of their employer’s
COVID-19 program on trial. To remedy their unfair treatment under this program,
the Employees ask that I commandeer their employer’s vaccination policy—and
issue a preliminary injunction that either exempts them from their employer’s
unvaccinated employee testing requirement or require that the vaccinated employees
be tested as well.
Yet in this effort, they have neglected to show that they have a right that would
justify this extraordinary action. While their claims invoke religious discrimination,
their focus is on the “science.” Now, I’ll admit, some of what they cite seems to have
merit. Though I’d be remiss if I didn’t note that the vast majority of their case appears
to reflect a toxic combination of motivated reasoning and misinformation—a
cocktail that that promises to plague this country long after COVID-19 has abated.
But, in the end, the Employers’ take on the “science” is irrelevant absent a
right. And here, the Geisinger Employees have utterly failed to demonstrate that they
have one. That renders their claim dead-on-arrival.
But before I dive into the legal deficiencies of their claims, a bit of background
and an explanation of the legal standard applied to their requested relief are in order.
I. BACKGROUND
On November 8, 2021, just over 100 healthcare workers sued Geisinger
Health and its various affiliates. As I previewed, their case centers on Geisinger’s
COVID-19 vaccination policy—more specifically, Geisinger’s failure to provide an
exemption-to-the-exemption.
These 100-plus Geisinger employees had been given conditional religious
exemptions to Geisinger’s COVID-19 vaccination requirement.1 But Geisinger
began requiring that these unvaccinated Employees submit to COVID-19 tests twice
a week, beginning November 9, 2021.2 And Geisinger’s testing policy provides that
if the Employees do not submit to the tests, they will be fired.3 The Employees asked
for a religious exemption to the testing requirement.4 But Geisinger rejected these
requests.5
In their initial complaint, the Employees argued that Geisinger’s failure to
provide an exemption to the testing requirement violated their rights under the
United States Constitution and Federal Civil Rights Law and asked that I block the
requirement or require that all vaccinated staff be tested as well.6 On November 14,
2021, the employees filed an amended complaint adding an additional count and
correcting various technical errors.7 The following day, I held a telephone status
conference. During that call I scheduled an oral argument. I also requested that the
parties brief a number of issues raised in the amended complaint: namely, whether
Geisinger—a private, non-profit hospital—was a state actor and thus capable of
violating the employees’ constitutional rights; whether Geisinger could be sued for
1 Doc. 14 at ¶ 127.
2 Id. at ¶ 129.
3 Id. at ¶¶ 154–155.
4 Id. at ¶ 152.
5 Id. at ¶ 153.
6 See generally Doc. 1.
these violations under 42 U.S.C. § 1985(3); and whether administrative exhaustion
requirements barred the Employees from bring their claims under Federal and State
civil rights law.
On November 17, 2021, the Employees filed a Second Amended Complaint.8
In this complaint, which again asks this Court to enjoin Geisinger from
implementing their testing program or, in the alternative, require that all employees
be tested, the employees altered their legal theory.9 They jettisoned some of their
federal constitutional claims, as well as their section 1985 claim; but added claims
under the Pennsylvania State Constitution’s Free Exercise Clause and the
Pennsylvania Human Relations Act.
The parties submitted briefs addressing the claims, requested relief, and topics
I asked that they address on November 18, 2021. And on November 19, 2021, I
heard oral argument on the same subjects.
The Employees request for a preliminary injunction is now ripe for review.
II. LEGAL STANDARD
The Geisinger Employees’ requested relief—that I issue a preliminary order
that requires Geisinger not to implement their testing program or, alternatively, that
Geisinger test all employees—dictates the legal standard applied. This request falls
under Federal Rule of Civil Procedure 65, which governs the granting of injunctive
8 See generally Doc. 14.
relief such as temporary restraining orders and preliminary injunctions. By design,
this relief is extraordinary in nature and available only in limited circumstances.10
The United States Court of Appeals for the Third Circuit has outlined four
factors that a court ruling on a request for injunctive relief must consider: (1) whether
the movant has shown a reasonable probability of success on the merits; (2) whether
the movant will be irreparably injured by denial of the relief; (3) whether granting
preliminary relief will result in even greater harm to the nonmoving party; and (4)
whether granting the preliminary relief will be in the public interest.11 These same
factors apply with equal force to a motion for a temporary restraining order.12
In Reilly v. City of Harrisburg, the Third Circuit clarified the burden on a party
seeking a preliminary injunction.13 The court specified that a party seeking a
preliminary injunction must first demonstrate the following: (1) “it can win on the
merits (which requires a showing significantly better than negligible but not
necessarily more likely than not),” and (2) “it is more likely than not to suffer
irreparable harm in the absence of preliminary relief.”14 And the Third Circuit further
noted that “[i]f these gateway factors are met, a court then considers the remaining
10 See AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426–27 (3d Cir. 1994),
cert. denied, 514 U.S. 1103 (1995).
11 Talbert v. Corizon Medical, 605 Fed. Appx. 86, 87 (3d Cir. 2015).
12 Cerro Fabricated Products LLC v. Solanick, 300 F. Supp. 3d 632, 648 n.5 (M.D. Pa. 2018)
(Mariani, J.).
13 858 F.3d 173 (3d Cir. 2017).
two factors and determines in its sound discretion if all four factors, taken together,
balance in favor of granting the requested preliminary relief.”15
III. ANALYSIS
So with these two threshold factors in mind, I can turn now to the merits.
Across three counts, the Geisinger Employees invoke a right to an exemption from
their Employer’s testing policy under five separate laws. These five claims can be
broken out into two categories.
First, there are their claims under Federal and State Antidiscrimination laws.
Namely:
Title VII of the 1964 Civil Rights Act, codified at 42 U.S.C. § 2000e,
prohibiting employers from discriminating on the basis of religion;16 and
the Pennsylvania Human Relations Act, specifically 43 P.S. § 955(5)(f),
Though as I noted at the oral argument, this section citation appears to be an
error. The material they quote comes from 43 P.S. § 955(f). And even that
section does not appear to be correct as it pertains only to “employment
agencies.” Accordingly, I’ll generously construe this allegation as alleging
religious discrimination against an “employer” under 43 P.S. § 955(a).17
15 Id.
16 Doc. 14 at ¶ 161, 184.
Second, there are their constitutional claims. These include:
The Equal Protection Clause of the United States Constitution’s 14th
Amendment;18
the Pennsylvania State Constitution’s Free Exercise Clause, found in Article
I, Section 3;19 and
the Free Exercise Clause of the United States Constitution’s 1st Amendment.20
I’ll note here that besides serving as a basis for the Employees substantive claims—
in other words, claims that entitle them to a right, which are assessed here based on
the likelihood that they’d succeed at an eventual trial—these constitutional claims
are also at the heart of the Employees’ claim that absent a preliminary injunction
they will suffer an irreparable harm—the justification required for this Court to
intervene now.
As I’ll explain further in the subsections below, the Geisinger Employees’
claims fail across the board. To start, the Employees are far from showing that they
are likely to succeed on the merits. Well-established law forecloses their claims.
First, they assert constitutional claims against a private entity without so much
as a paragraph describing how Geisinger could be considered a state actor. In fact,
they disavow any governmental connection in the first paragraph of their
complaint—writing that Geisinger is mandating that its employees be subjected to
18 Id. at ¶¶ 173–184.
19 Id. at ¶ 162.
COVID-19 tests “[w]ithout any official mandate from the federal or state
government. . . .”21 In total, these claims reflect a fundamental misunderstanding of
the rights afforded under the Constitution—a failing of civic education that I might
sadly expect from a ordinary citizen, but which is inexcusable from a member of the
bar.
Second, while the Geisinger Employees are in the right area code in alleging
that Geisinger violated their rights under federal and state antidiscrimination law—
in the sense that you can sue a private, non-state actor under these statutes—their
allegations fail to touch on these statutes’ most basic requirements.22 To make out a
prima facie case of religious discrimination, the Geisinger Employees must tell the
Court what their religious belief is. They have not done so. And this failing alone
would warrant dismissal.
But this is not the sole infirmity of these claims. Indeed, it’s not clear that this
Court can even entertain these claims. The antidiscrimination statutes require that
employees first file their complaint with either the Pennsylvania Human Relations
Commission or the Equal Employment Opportunity Commission.23 The Geisinger
Employees have not done so. And while courts disagree about whether trial court
judges are even empowered to issue a preliminary injunction absent a filed
21 Doc. 14 at ¶ 1.
22 See id. at ¶¶ 161–162 & 184.
complaint—the Third Circuit has yet to weigh in—what’s clear is that the Geisinger
Employees would not meet the standard under the most permissive approach.24
If these failings—which would sink the Geisinger Employees’ claim based on
their inability to show a likelihood of success on the merits—weren’t enough, the
Employees also fail to show that they would suffer irreparable harm. In their papers,
and at oral argument, the Employees put forward two arguments. Their first basis:
the loss of their jobs and career. Their second: the loss of their constitutional rights.
But both fail.
First, well-established Supreme Court and Third Circuit precedent dictates
that the loss of a job alone does not constitute irreparable harm.25 This harm can be
remedied after trial; in employment discrimination cases, courts are empowered to
reinstate wrongfully terminated employees, order backpay, and award damages.
Second, as I have noted above—and will discuss further below—the
Employees do not have a bona fide constitutional claim. Geisinger is not a state
actor. They therefore cannot violate the Employees’ rights under the Free Exercise
and Equal Protection Clauses.
24 See e.g. Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987); Bacon v. Woodward, 2021 WL
5183059 (E.D. Wa. Nov. 8, 2021); Doe v. Mills, 2021 WL 5027177 (1st Cir. Oct. 29, 2021).
25 See Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974); Marxe v. Jackson, 833 F.2d 1121 (3d
Plaintiffs must clear a high bar to be entitled to a preliminary injunction. It is
an extraordinary remedy. And, as I have previewed, the Employees are far from
making the sort of showing that would justify this relief.
A. The State and Federal Free Exercise Claims and 14th Amendment
Equal Protection Claim
I’ll begin with the Geisinger Employees’ constitutional claims. In their papers
and at oral argument, the Employees claim that their constitutional rights have been
violated. For instance, in arguing that they have suffered irreparable harm, they
highlight Supreme Court caselaw holding that the loss of First Amendment is an
irreparable injury.26 At the same time, the Employees also claim, in Count II, that
Geisinger’s failure to provide a testing exemption violates the 14th Amendment
Equal Protection Clause.27 And they similarly reference Art. I, Section 3 of the
Pennsylvania State Constitution, the state Free Exercise Clause, in Count I.28 But
nowhere—not in their complaint, not in their briefing, and not at oral argument—
have they claimed that Geisinger is a state actor.
The Bill of Rights is a compact between the federal government and the
people. In ratifying the Constitution and these Amendments, the people did not
fundamentally alter their rights against each other. This is evident in the text of the
First Amendment. It provides that “Congress shall make no law respecting an
26 Doc. 18 at 19 (citing Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)).
27 Doc. 14 at ¶¶ 173–182.
establishment of religion, or prohibiting the free exercise thereof, or abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble,
and petition the Government for a redress of grievances.”29 The key words there are
“Congress shall make no law . . . .” Indeed, “[a]s is plain from its text, the First
Amendment was adopted to curtail the power of Congress to interfere with the
individual’s freedom to believe, to worship, and to express himself in accordance
with the dictates of his own conscience.”30 And while the Supreme Court has
expanded the First Amendment’s reach—a federal agency cannot interfere with the
right to Free Exercise any more than Congress, and neither can state or local
government officials after incorporation—governmental conduct remains a non-
negotiable element.31
A similar dynamic is at play with the Fourteenth Amendment, the other
federal constitutional protection that the Employees invoke. Passed in the wake of
the Civil War, this Amendment gave the people greater rights against their state.
Section 1 provides that “No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property without due process of the law; nor
deny to any person within its jurisdiction the equal protection of the law.”32 By its
29 U.S. Const. amend. I.
30 Wallace v. Jaffee, 472 U.S. 38, 49 (1985) (emphasis added).
31 See id.
very terms, the Equal Protection Clause restrains the State—not private individuals.
This limitation was recognized shortly after the Amendment went into effect in the
landmark Civil Rights Cases.33
Confusion over the rights provided under the Pennsylvania Constitution is a
bit more understandable—for an ordinary citizen. Its Free Exercise Clause provides
that
All men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own consciences; no man can of right
be compelled to attend, erect or support any place of worship, or to
maintain any ministry against his consent; no human authority can, in
any case whatever, control or interfere with the rights of conscience,
and no preference shall ever be given by law to any religious
establishments or modes of worship.34
But while the Article I, Section 3 of the Pennsylvania State Constitution makes no
mention of state action, the Pennsylvania Supreme Court has emphasized that Article
1 and its 26 sections “must be read as limiting the powers of government to interfere
with the rights provided therein.”35
In short, these provisions do not give the Employees the rights that they think
they do. A cursory understanding of our constitutional system—and in the case of
the claims under the First and Fourteenth Amendment, a mere glance at the text—
33 109 U.S. 3 (1883). Notably, this decision also required state action to satisfy claims under the
Thirteenth Amendment despite the lack of reference to “State” in the Amendment. That aspect
of the decision was eventually overturned. See Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968). But the requirement under the Fourteenth Amendment remains.
34 Pa. Const., art. I, § 3.
should have put them on notice that these Amendments do not apply with equal force
to private parties. And while a private party’s conduct can wade into state action
where their act is “fairly attributable” to the state, the Geisinger Employees do not
make that case here. To the contrary, they assert that Geisinger enacted its policy
“[w]ithout any official mandate from the federal or state government . . . .”36 That
seals their fate.
As pled, the Employees’ constitutional claim have no zero chance of success
on the merits.
B. Title VII Claims
The Geisinger Employees also claim, in Count I and Count III, that
Geisinger’s failure to provide an exemption-to-the-exemption violates Title VII of
the Civil Rights Act of 1964. Title VII “makes it an unlawful employment practice
for an employer ‘to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensations, terms, conditions, or privileges of
employment, because of such individual’s . . . religion.’”37 Congress further defined
“religion” in the statute—and in doing so, cabined this potentially expansive term:
“The term ‘religion’ includes all aspects of religious observance and practice, as well
as belief, unless an employer demonstrates that he is unable to reasonable
36 Doc. 14 at ¶ 1.
accommodate to an employee’s or prospective employee’s religious observance or
practice without undue hardship on the conduct of the employer’s business.”38
In striking this statutorily required balance between the right of employees to
practice their religion and the right of employers to carry out their business, courts
have used a two-part framework. The burden is first on the employees to make out
a prima facie case. They must show “that (1) [they] held a sincere religious belief
that conflicted with a job requirement, (2) [they] informed [their] employer of the
conflict, and (3) [they were] going to be disciplined for failing to comply with the
conflicting request.”39
If the employees establish these factors, the burden then shifts to the employer,
who can defeat the employees’ prima facie case by showing that it either offered an
accommodation or that making such an accommodation would have been an “undue
hardship.”40 Supreme Court and Third Circuit precedent dictate that this showing is
minimal: “An accommodation constitutes an ‘undue hardship’ if it would impose
more than a de minimis cost on the employer.”41
The Geisinger Employees have asked that, pending the outcome of their case,
I bar Geisinger from implementing its testing policy or expand it to all employees,
regardless of vaccination status. Let me reiterate: this is an extraordinary remedy.
38 Id. (quoting 42 U.S.C. § 2000e(j)).
39 Id.
40 42 U.S.C. 20000e(j).
41 Webb v. City of Philadelphia, 562 F.3d 256, 259–60 (3d Cir. 2009) (Scirica, J.) (citing Trans
For it to be warranted, the employees must—among other things—show a that they
are likely to win. Here, that would require the Employees to show that the
administrative exhaustion requirements have been satisfied, or are inapplicable; and
that they have a sincere, religious conflict with the testing requirement. If the
Employees meet this burden, Geisinger would then be required to show that offering
an exemption-to-the-exemption would “impose more than a de minimis cost . . . .”42
1 . Exhaustion
Title VII—and our anti-discrimination laws more broadly—exist within a
broader scheme. Federal court cannot be an employee’s first resort. They must first
file with the Equal Employment Opportunity Commission (EEOC) or a state
agency.43 That agency is then tasked with the initial investigation, and regardless of
what they find, the employee “is entitled to a ‘right-to-sue’ notice 180 days after the
charge is filed.”44 (And sometimes the EEOC issues the right-to-sue order sooner.)45
42 Id.
43 42 U.S.C. § 2000e-5(b), (e)(1). “In establishing these procedures, Congress acted on the
assumption that ‘administrative tribunals are better equipped to handle the complicated issues
involved in employment discrimination cases. . . . [and that] the sorting out of the
complexities surrounding employment discrimination can give rise to enormous expenditures
of judicial resources in already heavily overburdened Federal district courts.’” Moteles v.
Univ. of Pennsylvania, 730 F.2d 913, 917 (3d Cir. 1984) (quoting H.R. Rep. No. 238, 92d
Cong., 2d Sess. 2 reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 2146). See also
Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) (noting that the statutory scheme
“reflects an attempt to balance the competing value of protecting the right of employees to
nondiscriminatory treatment, and of avoiding the cost of litigation over discriminatory
employment decisions that might be rectified by a consensual agreement.”).
44 Fort Bend Cty., Tx. v. Davis, 139 S. Ct. 1843, 1847 (2019).
45 See Together Employees v. Mass General Brigham Inc., 2021 WL 5234394, at *19 (D. Mass.
Nov. 11, 2021) (noting that plaintiffs in a case challenging a Massachusetts healthcare
organization’s vaccine that the EEOC had issued right-to-sue letters because the agency did
What’s essential here: an employee is only entitled to bring a private right of action
under Title VII after they have received that notice.46
Here, the Geisinger Employees do not meet the mark. At oral argument,
counsel for the Employees indicated that he was not aware of any Employees having
filed with the EEOC or state commission, to say nothing of those employees having
received a right to sue letter. Still, counsel requested that I issue a preliminary
injunction until the Employees “have an opportunity to file with the EEOC and the
EEOC completes its investigation and/or issues every plaintiff a right to sue. . . .”47
This ask raises another question: can a court issue preliminary relief until an
employee has had time to file? The Third Circuit has not, to my knowledge,
addressed this sue-first-file-later approach; nor have the parties put forward any
caselaw directly on point. The parties have, however, put forward caselaw from
other federal courts on the issue. The takeaway: it’s a mixed bag.
The crux of the issue is this: Title VII authorizes the EEOC to request an
injunction from a court after receiving the complaint.48 Specifically, the statute
provides that “[w]henever a charge is filed with the Commission and the
Commission concludes . . . that prompt judicial action is necessary . . . the
Commission . . . may bring an action for appropriate temporary or preliminary
46 42 U.S.C. § 2000e-5(f)(1).
47 Doc. 14 at 37, ¶ C.
relief . . . .”49 Based on this power having been lodged with the EEOC, courts have
reasoned that Congress didn’t intend for courts to entertain pre-filing preliminary
injunctions.50 And indeed, this approach squares with Congress’s desire to funnel
these claims through agencies first. That approach was taken in part so that the
agencies could ferreting out fraudulent and frivolous claims, and thus avoid
overburdening the courts. (That the Employees suit, with its attendant legal
deficiencies, has required that this Court expend some seven-thousand words is
evidence on this front.)
Yet not all courts have taken this approach—and for good reason. As those
courts have noted, our antidiscrimination laws plainly have a goal more important
than judicial efficiency: preventing discrimination.51 What’s more, Congress never
explicitly foreclosed pre-filing equitable relief in the statute. As the United States
Court of Appeals for the District of Columbia Circuit noted in its opinion on the
subject, “without an express contrary indication from Congress, federal courts have
inherent equitable power to issue such injunctions to preserve the status quo.”52
Thus, in some jurisdictions, the “showing of irreparable harm may justify the
49 42 U.S.C. § 2000e-5(f)(2).
50 See e.g. Bacon, 2021 WL 5183059.
51 Wagner, 836 F.3d at 575 (“The overarching purpose of the 1972 amendments was to achieve
the goal of effectively eradicting employment.”).
granting of a preliminary injunction in a Title VII case even where plaintiffs did not
obtain a right-to-sue letter.”53
But even among courts that agree that preliminary relief is available under
Title VII prior to filing, the approaches differ. For instance, in its opinion on the
subject, the United State Court of Appeals for the First Circuit suggested that a
heightened irreparable injury standard would be required: “to obtain such relief, a
claimant would have to, at a minimum, make a showing of ‘irreparable injury
sufficient in kind and degree to justify the disruption of the prescribed administrative
process.’”54 At the same time, others, have considered it as a factors that “cut[s]
against the likelihood of success on the merits . . . .”55
So where does that leave us? Given that the EEOC can seek preliminary relief
upon the filing of a complaint, I am skeptical that an employee should be able to
seek preliminary relief prior to filing. Doing so would allow for an end-run around
the administrative process that Congress crafted. But in the end, this is nothing more
than an interesting legal question.
That’s because picking a side in this split is unnecessary: even if this Court
were to import another circuit’s standard allowing such actions, it’s clear that the
Geisinger Employees would fail. Far from meeting any heightened irreparable harm
53 2021 WL 5234394, at *19.
54 Id. (quoting Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944–45 (1st Cir. 1983)).
standard, the Employees have not shown that they will suffer an irreparable harm at
all.
The first of the Geisinger Employee’s irreparable harm arguments is that they
will lose their jobs. But Supreme Court has made clear that loss of employment,
unless accompanied by a “genuinely extraordinary situation,” won’t do.56 And while
the Supreme Court has yet to describe what will do, in the case marking out this
“genuinely extraordinary situation” rule, the Court refused to recognize humiliation,
reputational harm, lost income, difficulty finding a new job, and loss of skills as
sufficient.57
Their second argument is that they will lose their constitutional freedoms. I’ve
made clear already that the Geisinger Employees do not have a federal or state
constitutional right against their employer.
Accordingly, even if a preliminary injunction prior to the exhaustion of
administrative remedies were authorized under the law of this circuit, this case
would not warrant its use.
2. The Geisinger Employee’s Sincere, Religious Belief
The Employees have not met the administrative exhaustion requirements, but
even if they had, their claim would fail at the prima facie stage. To review, in a Title
VII case, an employee must show “that (1) [they] held a sincere religious belief that
56 Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974).
57 Id. at 92 & n.68, 92. See also Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 845 (7th Cir.
conflicted with a job requirement, (2) [they] informed [their] employer of the
conflict, and (3) [they are] going to be disciplined for failing to comply with the
conflicting request.”58 Here, the second and third element are not at issue. The
Employees sought an exemption from Geisinger; Geisinger rejected those requests;
and their policy provides for termination should the Employees fail to get in line.59
Geisinger contests, however, whether the Employees have shown that they have
sincere religious objections to the policy.
Assessing whether a person’s beliefs are religious is often a difficult, but
necessary, step in a Title VII suit.60 In the Third Circuit, courts look to the definition
of religion set out in Africa v. Commonwealth of Pennsylvania:
First, a religion addresses fundamental and ultimate questions having
to do with deep and imponderable matters. Second, a religion is
comprehensive in nature; it consists of a belief-system as opposed to an
isolated teaching. Third, a religion often can be recognized by the
presence of certain formal and external signs.61
Here, this task is impossible because the Geisinger Employees provide no
information whatsoever about their beliefs in their second amended complaint or
their brief.62 When pressed at oral argument, counsel vaguely asserted that some had
Buddhist-like beliefs that their body was their temple, others objected on the grounds
58 Id.
59 Doc. 14 at ¶ 155.
60 Fallon, 877 F.3d at 490–91.
61 662 F.2d 1025 (3d Cir. 1981)
that the test violated the Nuremberg Code, and more, still, thought that it violated a
precept of their Christian faith—that they were made in the image of God.
For one, these vague assertions still would not give this Court enough to go
on under Africa—to say nothing of the problems that would result from allowing a
few employees belief to serve as the basis for class-wide relief.
But setting those issues aside, what the Employees have provided to the Court
suggests that their religious objections are neither rooted in religion, nor truly
objections. The Employees requested relief is at war with itself: it is particularly
difficult, if not impossible, to square the Employees alternate requested relief—that
I require all employees to be tested—with their supposedly deeply felt religious
opposition to testing. If you are willing to be tested so long as the vaccinated are too,
you are not religiously opposed to testing. On a separate note, the Employees’ hyper-
focus on the “science” of testing and its potentially harmful health effects in their
papers only furthers this Court’s skepticism that what objection they might have is
rooted in a scientific or medical belief, not religion.63
Far from carrying their burden, the Employees pleadings and briefing fail to
detail how their opposition to Geisinger’s policy is rooted in a religious belief. Their
papers utterly fail to address the matter.
3. Providing an Additional Exemption’s Undue Hardship on
Geisinger
Given that the Employees have neither exhausted their administrative
remedies nor shown that their objection is based on a sincere religious belief,
Geisinger need not show that providing an exemption would impose an undue
hardship. But for the sake of completeness, I’ll note that they have carried their
burden.
As I noted above, the “undue hardship” requirement originates in the text of
Title VII. The Act proscribes religious discrimination and goes on to define
“religion” to “include[] all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonable
accommodate to an employee’s or prospective employee’s religious observance or
practice without undue hardship on the conduct of the employer’s business.” At this
stage, the focus turn to the second clause—the undue hardship. The Supreme Court
and Third Circuit have established the following parameters: “An accommodation
constitutes an ‘undue hardship’ if it would impose more than a de minimis cost on
the employer.”64
Geisinger has shown here that it would be more than a de minimis cost for
them to harbor employees that are both unvaccinated and untested. Their principal
argument is that an unvaccinated individual is likelier than a vaccinated individual
to be the source of an infection.65 And, after consideration by their own experts and
the advice of the CDC and EEOC, they concluded that testing was the best and least
invasive way to reduce the risk that unvaccinated individuals pose to patients and
staff.66
This approach stands up to both attacks that the Employees levy against it.
The first—that PCR and Antigen COVID-19 tests cause cancer and are wholly
ineffective at identifying when a person is infected—is not worthy of a response. As
the English philosopher George Horne wrote, “Pertness and ignorance may ask a
question in three lines, which it will cost learning and ingenuity thirty pages to
answer.”67 We simply haven’t the time to explore the depths of this statement’s
inaccuracy.
Their second attack—that because infected vaccinated and unvaccinated
individuals transmit the virus at similar rates, employees should be tested regardless
of vaccination status—warrants a response.
To support their claim, the Geisinger Employees repeatedly point to a study
published by The Lancet reflecting this finding. But I’d be remiss to dive into this
article without a few words of caution. Relying on any one study is bad process,
even when that study is published by a reputable journal. Over the past decade, the
medical sciences (among others) have struggled through a replication crisis—
65 Doc. 15 at 20–21.
66 Id.
essentially, that the results of studies are not reproducible, making them unreliable.
The causes are multiple—some honest, and some not—but researchers have
developed tools to reduce the risk of error. That doesn’t mean we can’t trust science;
it means that we can’t just take any single study off the shelf that supports our view
and assume its findings will hold.
For courts, this state of affairs emphasizes the need for experts—scientists
who can situate studies in their broader context and comment on whether
observational studies are backed by our understanding of biological, chemical, and
physical processes; and scientists who can discuss the study’s methodology and
opine on their reliability. This is all to say that it would be a profound error for this
Court—or any other—to commandeer a hospital system’s COVID-19 program
based on a single study.
But with those caveats aside, I’ll still note that in my reading, this article in
The Lancet still backs Geisinger’s approach. In the “Interpretation” section, the
authors of the study wrote the following: “Vaccination reduces the risk of delta
variant infection and accelerates viral clearance. Nonetheless, fully vaccinated
individuals with breakthrough infections have peak viral load similar to
unvaccinated cases and can efficiently transmit infection in household settings,
including to fully vaccinated contacts. . . .”68
68 Anika Singanayagam, et al., Community transmission and viral load kinetics of the SARS-
The Employees have seized on the second half—repeatedly arguing that it’s
discriminatory to require that unvaccinated individuals be tested when vaccinated
individuals that catch COVID-19 are as likely to infect as unvaccinated individuals
who catch it. That’s a half-truth.
While vaccinated individuals that catch COVID-19 may be as likely to infect
others, they are significantly less likely to be infected in the first place—as the
authors emphasized in their opening sentence: “Vaccination reduces the risk of delta
variant infection . . . .” A recent CDC study estimated that vaccinated individuals are
three-times less likely to be infected.69 And both the CDC and The Lancet studies
suggest that this number could be increased through an immunity enhancing booster
shot.
But for our purposes, its entirely rational for Geisinger to have chosen to test
employees whose risk of being a vector they cannot reduce through vaccination. It
would impose more than a de minimis burden on Geisinger to exempt these
employees, who are far more likely to be a vector, from the testing requirement.
And the same can be said for the Employees’ other, contradictory request—
that all employees be tested. It may be wise for Geisinger to test all employees.
prospective, longitudinal, cohort study, The Lancet (Oct. 29 2021),
https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(21)00648-4/fulltext.
69 Allison L. Naleway, et al., Incidence of SARS-CoV-2 Infection, Emerency Department Visits,
and Hospitalizations Because of COVID-19 Among Persons Aged ≥12 Years, by COVID-19
Vaccination Status — Oregon and Washington, July 4–September 25, 2021, CDC.gov (Nov.
Indeed, the rough math suggests if vaccinated employees are three times less likely
to be infected but outnumber unvaccinated staff 23,000 to 1,000, you might expect
the bulk of infections—and thus transmission—to come from vaccinated employees.
(Though that doesn’t take into account other protective measures—such as
masking—make reduce the risk of transmission while on the job; and the fact
remains that any single unvaccinated employee is a greater danger than their
vaccinated counterpart.) But, as a matter of law (not back of the envelope math) this
“exemption”—which isn’t an exemption because it would merely expand the
objected to program by 23,000 individuals—would undoubtedly impose more than
a de minimis cost on Geisinger.
C. Pennsylvania Human Relations Act Claims
Finally, I consider Geisinger’s analogous discrimination claim—this time
made under state, rather than federal law.
In Count I alleging religious discrimination, the Geisinger Employees invoke
the Pennsylvania Human Relations Act. The Act, as codified at 43 P.S. § 955(a),
prohibits employers from firing an employee because of their “religious creed.”70
And it further provides employees that are discriminated against “[a] right to a
remedy . . . .”71 This right can be found in section 953: “The opportunity for an
70 The section specifically provides that it is unlawful “[f]or any employer because of the . . .
religious creed . . . of any individual . . . to discharge from employment . . . or to otherwise
discriminate against such individual . . . with respect to compensation, hire, tenure, terms,
conditions, or privileges of employment . . . .” 43 P.S. § 955(a).
individual to obtain employment for which he is qualified . . . without discrimination
because of . . . religious creed . . . is hereby recognized as and declared to be a civil
right which shall be enforceable as set forth in this act.”72 But the statute’s plain
language—and its subsequent interpretation by the Pennsylvania Supreme Court—
emphasize, the Act “both bestows a right to be free from discrimination based on
[religious creed] and prescribes procedures whereby the right ‘shall’ be
vindicated.”73
The prescribed procedures at play here are found in section 962, which details
the process that must be followed before a claim can be filed in court.74 This section
opens by providing that employees’ right to seek a remedy in court “shall not be
foreclosed.”75 But as the Pennsylvania Supreme Court has noted, this section
provides a “final, rather than initial, resort to courts.”76 That’s because section
962(c)(1) further provides that the Pennsylvania Human Relations Commission has
“exclusive jurisdiction of a complaint alleging violations under the [Pennsylvania
Human Relations Act] for a period of one year . . . .”77
72 Id.
73 Clay v. Advanced Comput. Applications, Inc., 559 A.2d 917, 919 (Pa. 1989). The plain,
operative statutory language is that the civil right “shall be enforceable as set forth in this act.”
43 P.S. § 953.
74 43 P.S. § 962(c)(1).
75 Id.
76 Clay, 559 A.2d at 920.
So for this Court to even entertain a claim under this statute, the Geisinger
Employees must have lodged a complaint with the Pennsylvania Human Relations
Commission and given them at least one year to act on the complaint.78 Those
conditions have not been met. The Geisinger Employees have given no indication
that they have filed a complaint; nor have they pointed to a Commission action or
the passage of a year without any action that would allow them to file a claim in
court.
Like its federal counterpart, the Pennsylvania statute similarly gives the
Commission the power to seek a preliminary injunction. 43 P.S. § 959.2 provides:
If the Commission concludes, at any time following the filing of a
complaint under this act, that prompt judicial action is necessary to
prevent immediate and irreparable harm, the Commission may
commence an action in Commonwealth Court or the appropriate court
of common pleas, and that court may grant an appropriate preliminary
or special injunction pending final disposition of the complaint.79
The parties have not briefed this issue, but barring precedent from other
Pennsylvania courts to the contrary, this arguably leaves the Court with the same
file-first-sue-later dilemma. But just the same, its an unnecessary question to answer.
78 43 P.S. § 962(c)(1) (“If within one (1) year after the filing of a complaint with the
Commission, the Commission dismisses the complaint or has not entered into a conciliation
agreement to which the complainant is a party, the Commission must so notify the
complainant. On receipt of such a notice the complainant shall be able to bring an action in
the courts of common pleas of the Commonwealth based on the right to freedom from
discrimination granted by this act.”).
For one, as I noted earlier, there is no irreparable harm. Second, even if this
Pennsylvania law claim was properly before this Court and there was an irreparable
harm, it would fail on the substance for the same reason that the Employees’ Title
VII claim failed on the substance.
Title VII and the PHRA provide the same protections “‘except where there is
something specifically different in the language’ justifying the construction.”80
“‘Religious Creed’ is not defined within the text of the [Pennsylvania Human
Relations Act].”81 And, in keeping with Pennsylvania federal and state courts
interpretation, I “construe the term ‘religious creed’ . . . [under] the [Pennsylvania
Human Relations Act] to have the same meaning as the term ‘religion’ . . . [under]
Title VII.”82
Just as the Geisinger Employees’ failure to provide any information
whatsoever about their religious belief prevents them from showing that they have a
sincere religious belief dooms their Title VII claim, this failure would also doom
their Pennsylvania Human Relations Act claim.
80 Prise v. Alderwoods Grp. Inc., 657 F. Supp. 2d 564, 586 (W.D. Pa. 2009) (quoting Fogleman
v. Mercy Hosp. Inc., 283 F.3d 561, 567 (3d Cir. 2002)).
81 Id.
82 Id.; Pennsylvania State Univ. v. Pa. Hum. Rels. Comm’n, 505 A.2d 1053 (Pa. Cmwlth. 1986)
(noting the “Pennsylvania Supreme Court's favorable view of the United States Supreme
Court's interpretation of the federal analogue to the Pennsylvania statute, and the
commission's own adoption of the federal law's definition of ‘religion’” in overturning a lower
court decision not to use “the de minimis standard applied by the United States Supreme Court
The Geisinger Employees are, in sum, unable to show a likelihood of success
on the merits of their Title VII claim or an attendant irreparable harm. A preliminary
injunction based on these claims is therefore unwarranted.
IV. CONCLUSION
Federal courts are empowered to redress unlawful conduct—not conduct
which parties merely perceive as unfair or incorrect. And here, the Geisinger
Employees have not shown that they are entitled to relief as a matter of law. Their
request for a preliminary injunction is denied.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge