Opinion
Civil Action No. 21-cv-2602-RMR-STV
2021-10-14
Jaymee BARRINGTON, Plaintiff, v. UNITED AIRLINES, INC., Defendant.
John Robert Olsen, Olsen Firm, Louisville, CO, for Plaintiff. Donald J. Munro, Jones Day, Washington, DC, Michele Haydel Gehrke, Reed Smith LLP, San Francisco, CA, for Defendant.
John Robert Olsen, Olsen Firm, Louisville, CO, for Plaintiff.
Donald J. Munro, Jones Day, Washington, DC, Michele Haydel Gehrke, Reed Smith LLP, San Francisco, CA, for Defendant.
ORDER ON PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
REGINA M. RODRIGUEZ, United States District Judge
This matter comes before the Court on Plaintiff's Motion for Temporary Restraining Order and Injunctive Relief, ECF 8. Plaintiff seeks this relief on an emergency basis. The Defendant filed its opposition to Plaintiff's motion at ECF 16. Plaintiff's request to file a reply was granted and docketed as ECF 19-2. Plaintiff also submitted a motion to supplement its Motion for Temporary Restraining Order and Injunctive Relief, at ECF 21. The Court has reviewed the briefing submitted by the Parties and the applicable case law and has determined that no further argument is necessary. For the reasons set forth herein, Plaintiff's Motion is DENIED.
BACKGROUND
On August 6, 2021, in response to the COVID-19 pandemic, United Airlines ("United" or "Defendant") announced its COVID-19 Vaccination Policy ("the Policy"). The Policy requires all US based employees who enter United facilities to be fully vaccinated against COVID-19. The Policy includes an exemption and accommodation process for those who cannot be vaccinated due to medical reasons or those who object to vaccination on the basis of sincerely held religious beliefs. This Policy takes effect October 15, 2021, at which time each employee must have at least one dose of a COVID-19 vaccine.
Jaymee Barrington ("Plaintiff") is a United employee who works at the Denver International Airport as a Ramp Services Supervisor. Plaintiff contends that her sincerely held Christian faith prevents her from taking the COVID-19 vaccine. Plaintiff requested a religious accommodation under the Policy. United approved Plaintiff's request and informed her that she would be placed on a leave of absence without pay. United informed the Plaintiff that she would "be welcomed back to work once COVID-19 testing protocols are in place for your location and work area." ECF 16-5, ¶ 15. United also indicated that Plaintiff would be "separated from the company" if her position was filled while she was out on leave.
Defendant avers in its opposition to Plaintiff's motion that "For the avoidance of any doubt, even if Plaintiff's job is advertised, Plaintiff will be allowed to return to her job or to a comparable position, in the event her job has been filled, at such time as United is able to implement a testing protocol in her location and work area." ECF 16, p. 6-7. Plaintiff contends that she was not informed of this. ECF 19-2, ¶ 7.
Plaintiff seeks a preliminary injunction enjoining the Defendant from placing Plaintiff on unpaid leave.
APPLICABLE LAW
"Preliminary injunctions are extraordinary remedies requiring that the movant's right to relief be clear and unequivocal." Planned Parenthood of Kansas v. Andersen , 882 F.3d 1205, 1223 (10th Cir. 2018). To receive a preliminary injunction, the movant must establish: "(1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harms that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Aposhian v. Barr , 958 F.3d 969, 978 (10th Cir. 2020) (quoting Gen. Motors Corp. v. Urban Gorilla, LLC , 500 F.3d 1222, 1226 (10th Cir. 2007) ). It is the movant's burden to establish that each of these factors tips in his or her favor. Heideman v. S. Salt Lake City , 348 F.3d 1182, 1188–89 (10th Cir. 2003). However, the Tenth Circuit has held that where the moving party has established that the three "harm" factors tip decidedly in its favor, the "probability of success requirement" is somewhat relaxed. Id. Because a "preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Dominion Video Satellite, Inc. v. Echostar Satellite Corp. , 356 F.3d 1256, 1261 (10th Cir. 2004) ; Aposhian v. Barr , 958 F.3d at 978 ("A preliminary injunction is an extraordinary remedy, the exception rather than the rule.") Here, Plaintiff has failed to establish that any of the required factors tip in her favor, and she has therefore failed to show entitlement to a preliminary injunction.
ANALYSIS
I. LIKELIHOOD OF SUCCESS ON THE MERITS
To obtain preliminary injunctive relief, Plaintiff must first demonstrate a substantial likelihood of success on the merits of her claims. Here, Plaintiff has alleged discrimination and retaliation in violation of Title VII and the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-401 et seq. Plaintiff alleges that Defendant violated Title VII and CADA by failing to provide Plaintiff with a reasonable accommodation under the statute and by failing to engage in an interactive process with the Plaintiff for determining her accommodation. The Defendant argues in opposition that the Court lacks jurisdiction over Plaintiff's claim because Plaintiff has failed to exhaust her administrative remedies.
The substantive analysis for the state law anti-discrimination and retaliation claims is identical to that under Title VII. See Agassounon v. Jeppesen Sanderson, Inc. , 688 Fed.Appx. 507, 509 (10th Cir. 2017) (analyzing CADA discrimination and retaliation claims under the same legal standards as Title VII). The Court thus analyzes both claims together.
A. Likelihood of Success on the Merits - Title VII and CADA Discrimination Claim
Under Title VII it is "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... religion." Thomas v. Nat'l Ass'n of Letter Carriers , 225 F.3d 1149, 1154 (10th Cir. 2000) (second omission in original) (quoting 42 U.S.C. § 2000e–2(a)(1) ) (internal quotation marks omitted). "Religion" is defined to include those "aspects of religious observance and practice" that an employer is able to "reasonably accommodate ... without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).
Plaintiff, a United Airlines employee, contends that her sincerely held Christian faith prevents her from taking the COVID-19 vaccine. While recognizing a broad concept of religion, courts and the EEOC acknowledge that the substantive content of religious beliefs is distinctive:
Religious beliefs include theistic beliefs as well as non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns ultimate ideas about life, purpose, and death.... Social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.
EEOC Compliance Manual § 12–I(A)(1)(internal quotations and citations omitted); see also Adeyeye v. Heartland Sweeteners, LLC , 721 F.3d 444, 448 (7th Cir. 2013) ("Thus, a genuinely held belief that involves matters of the afterlife, spirituality, or the soul, among other possibilities, qualifies as religion under Title VII"); Fallon v. Mercy Catholic Med. Ctr. of Se. Pa. , 877 F.3d 487, 492 (3d Cir. 2017) (employee's objection to flu vaccine did not qualify as a religious belief protected by Title VII because his beliefs that "one should not harm their own body and ... that the flu vaccine may do more harm than good" did not "address fundamental and ultimate questions having to do with deep and imponderable matters" and were not "comprehensive in nature").
Neither party has offered argument regarding whether the Plaintiff's beliefs regarding the COVID-19 vaccination constitute a religious belief under Title VII. Thus, for the purpose of considering Plaintiff's motion, the Court will presume that this threshold requirement has been met.
1. Reasonable Accommodation
Title VII requires reasonable accommodation for an employee's sincerely held religious beliefs or a showing that reasonable accommodation would be an undue hardship on the employer. Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Ctys. , 735 F.2d 388, 390 (10th Cir. 1984). Defendant here contends that it offered the Plaintiff a reasonable accommodation and that any additional accommodation would constitute an undue hardship on United.
Defendant asserts that it reasonably accommodated the Plaintiff by placing her on temporary unpaid leave "until United could establish effective testing and safety protocols for her location and work area." ECF 16-5, ¶ 17. Defendant further states that "[f]or the avoidance of any doubt, even if Plaintiff's job is advertised, Plaintiff will be allowed to return to her job or to a comparable position, in the event her job has been filled, at such time as United is able to implement a testing protocol in her location and work area." Id. , ¶¶ 10-11. Plaintiff contends that this proposed accommodation is tantamount to "instructing the employee that she would be executed by firing squad at dawn." ECF 19-2, ¶ 3.
The Plaintiff appears to suggest that United should have found her a different accommodating job (ECF 8-1, ¶ 21) or should have allowed her to comply with alternative measures like testing and mask-wearing (ECF 8, ¶ 39). Courts considering requests for accommodation under Title VII have made clear that "Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee." Bruff v. N. Mississippi Health Servs., Inc. , 244 F.3d 495, 501 (5th Cir. 2001). "Nor does Title VII require employers to accommodate an employee's religious practices in a way that spares the employee any cost whatsoever." Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Ctys. , 735 F.2d at 390–91. Neither party here has cited to case law addressing whether temporary, but indefinite, unpaid leave constitutes a reasonable accommodation under Title VII. Courts have, however, considered requests for accommodation similar to those made by Plaintiff here, including requests to be transferred to a different accommodating job. A review of such cases may assist this Court in determining whether the accommodation offered by the Defendant is reasonable.
Plaintiff argues that suspension without pay is "no accommodation at all, let alone a reasonable accommodation" (ECF 8, ¶ 65), but Plaintiff does not cite to authority in support of its position. Defendant contends that Pinsker instructs that unpaid leave has been found to be a reasonable accommodation. While Pinsker may be instructive, the facts of that case differ from those at issue here—the plaintiff there was accommodated with unpaid leave on just three particular holidays, he was not placed on indefinite unpaid leave.
Courts have found that employers are not obligated to create a position to accommodate an employee's religious beliefs. See e.g. Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 83, 97 S.Ct. 2264, 53 L.Ed.2d 113 (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"); Robinson v. Children's Hosp. Bos. , No. CV 14-10263-DJC, 2016 WL 1337255, at *8 (D. Mass. Apr. 5, 2016) (allowing Plaintiff 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); 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 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"). The case law thus suggests that United was not obligated to relocate Plaintiff within the company in order to comply with Title VII.
Instead, a Court considering whether an employer's accommodation complies with the requirements of Title VII must consider the accommodation in light of the burden imposed on the employer. An employer need not provide an accommodation that would present an undue hardship. Lee v. ABF Freight Sys., Inc. , 22 F.3d 1019, 1023 (10th Cir. 1994). To require an employer "to bear more than a de minimis cost in order to [accommodate an employee's religious beliefs] is an undue hardship." Id.
Defendant contends that the Plaintiff's requested accommodation would impose more than a de minimis cost on United. First, Plaintiff suggests that she be accommodated by requiring "periodic testing, mask wearing, social distancing, etc." ECF 8, ¶ 39. The Defendant argues that such a scheme would be burdensome because it would "require United to hire or train additional employees to administer and review the tests" and "would need to be implemented by United's Corporate Safety and Human Resources employees (among others), causing them a heavier workload and/or modifying their job duties." ECF 16, pp. 9, 15. The Tenth Circuit has explicitly instructed that "[t]he cost of hiring an additional worker ... can amount to undue hardship." Lee v. ABF Freight Sys. , 22 F.3d at 1023.
The Defendant also argues that the Plaintiff's proposed accommodation imposes undue burden because it creates the "possibility of an adverse impact on coworkers." ECF 16, p. 15. Specifically, Defendant argues that it may "jeopardize[ ] the lives and health of [Plaintiff's] co-workers" because "the unvaccinated employees could expose co-workers to heightened risk of COVID-19 such as though ‘break-through cases.’ " Id. Defendant cites to an August 26, 2021 CDC report which found that "the greatest risk of transmission [of COVID-19] is among unvaccinated people who are much more likely to get infected, and therefore transmit the virus." The report also indicates that vaccinated individuals can get COVID-19. The Defendant has thus alleged facts suggesting that its other employees may be placed at greater risk of contracting COVID-19 if they are required to come in contact with unvaccinated coworkers. This, alone, would appear to constitute an undue burden under the controlling Tenth Circuit precedent.
ECF 16, p. 15, n1 (Delta Variant: What We Know About the Science , Centers for Disease Control and Prevention (Aug. 26, 2021), https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html.)
Plaintiff secondarily asks that she be accommodated by being transferred to a different position within United. As already explained, supra, United is under no obligation to provide the Plaintiff with an alternative position. Nonetheless, the Defendant can likely show that the burden of transferring the Plaintiff would be more than de minimis. The Defendant argues that finding such a job would be burdensome given the limitations—it would need to be available, able to be performed fully remotely, and it would need to be a position for which the Plaintiff is qualified. Defendant has represented, and Plaintiff has not contradicted, that Plaintiff's current position as Ramp Services Supervisor entails supporting ramp agents at gates in the airport, including overseeing "below the wing" tasks like baggage loading, and connecting hoses to the aircraft. Her position thus appears to be intricately tied to the airport itself. Plaintiff has not indicated what qualifications she might have that would allow her to perform a different, remote position.
A review of the parties’ briefing and all relevant case law suggests that the Plaintiff will likely not be able to establish that United failed to provide her with a reasonable accommodation under Title VII. While the accommodation offered by the Defendant may not be the Plaintiff's preferred accommodation, Defendant can likely show that it was reasonable given the burden that alternative actions would impose on United. For this reason, Plaintiff likely cannot show a likelihood of success on the merits of her claims and this element thus weighs in favor of denying her requested relief.
2. Likelihood of Success on the Merits - Interactive Process
The Plaintiff also alleges that Defendant failed to engage in an "interactive process" for determining a reasonable accommodation and, as such, has violated Title VII. Plaintiff is not likely to succeed on such claim. See ECF 8, ¶ 15.
The Tenth Circuit has instructed that an employer has an "obligation to engage in an interactive process ... to offer a reasonable accommodation" to an employee. Thomas v. National Ass'n of Letter Carriers , 225 F.3d at 1155 n.5. The Tenth Circuit has explained that " ‘[a]ll the interactive process requires is that employers make a goodfaith effort to seek accommodations’ ... ‘A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.’ " Smith v. Midland Brake, Inc., a Div. of Echlin, Inc. , 180 F.3d 1154, 1172 (10th Cir. 1999) (citing Taylor v. Phoenixville Sch. Dist. , 174 F.3d 142, 162 (3d Cir.), reh'g granted and opinion vacated (Aug. 18, 1999), on reh'g, 184 F.3d 296 (3d Cir. 1999) and Beck v. Univ. of Wisconsin Bd. of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996) ).
Here, there is no suggestion that the Defendant acted in bad faith, or that the Defendant failed to respond to Plaintiff's request. On the contrary, the Defendant has represented, through its affiant Carlos Rivera Torres, that employees who had requested accommodation were notified via email of the proposed accommodation and given five days to respond. ECF 16-5, ¶ 5. Given the process outlined by the Defendant and the guidance of the Tenth Circuit, it is unlikely that Plaintiff will succeed in establishing a violation of Title VII for failure to engage in an "interactive process."
3. Likelihood of Success on the Merits - Exhaustion of Administrative Remedies
The Defendant separately contends that Plaintiff's failure to exhaust her administrative remedies prior to filing this lawsuit operates as a bar to injunctive relief here. Both parties address this issue as a jurisdictional one, however, under current Tenth Circuit precedent, the issue is properly considered when analyzing likelihood of success on the merits for purposes of Title VII. Under CADA, however, exhaustion of administrative remedies is a jurisdictional issue. The Court will thus address these claims separately.
a. Title VII
The Tenth Circuit has explicitly overturned its prior precedent which held that exhaustion is a jurisdictional issue for the purposes of Title VII. In Lincoln v. BNSF Ry. Co. , 900 F.3d 1166, 1185 (10th Cir. 2018), the Tenth Circuit overruled nearly forty years of precedent and held that "a plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim."
Although exhaustion of administrative remedies is an affirmative defense rather than a jurisdictional prerequisite, it is still appropriately considered when analyzing Plaintiff's likelihood of success on the merits. See McData Corp. v. Brocade Commc'ns Sys., Inc. , 233 F. Supp. 2d 1315, 1320 (D. Colo. 2002) ("to establish likelihood of success on the merits, a party must show both that it will succeed on the merits of its claim and that "it will overcome each of the affirmative defenses asserted" by the opposing party."). Although Defendant will bear the burden of proof on its defenses at trial, in connection with a preliminary injunction motion it need only "demonstrate a substantial question concerning each defense to shift the burden to [Plaintiff] to produce countervailing evidence and argument showing the defenses lack substantial merit." Id.
Here, the parties agree that the Plaintiff has not yet exhausted her administrative remedies. The Defendant has thus met its burden of demonstrating "a substantial question concerning [the] defense," and the Plaintiff cannot show that the defense "lack[s] substantial merit." Because Plaintiff likely cannot overcome Defendant's affirmative defense here, Plaintiff has not established likely success on the merits. For this reason alone, Plaintiff has failed to establish likely success on the merits of this issue, and this element thus weighs against granting the relief requested.
b. Exhaustion of Administrative Remedies Under CADA
Although Colorado courts look to Title VII for guidance in applying the CADA, the Tenth Circuit's interpretation of federal statutes does not bind this Court with regard to state law claims. The Court is instead bound to apply substantive state law. CADA instructs that "no district court shall have jurisdiction to hear" an untimely claim. Colo. Rev. Stat. § 24-34-306(2)(b)(I)(C). The Colorado Supreme Court has held that, before an individual can assert a claim under CADA, he or she must first exhaust administrative remedies for all claims brought pursuant to the Act. Jackson v. City & Cty. of Denver , No. 11-CV-02293-PAB-KLM, 2012 WL 4355556, at *2 (D. Colo. Sept. 24, 2012) (citing Brooke v. Rest. Servs., Inc. , 906 P.2d 66 (Colo. 1995) ). This Court is not aware of any case wherein the Colorado Supreme Court has chosen to reconsider the CADA exhaustion requirement in light of Lincoln , and this Court must thus continue to analyze such claims under the existing state law precedent. As such, exhaustion continues to be "a condition precedent to bringing an action in district court" under CADA. Id. (citing City of Colo. Springs v. Conners , 993 P.2d 1167, 1169 n. 3 (Colo. 2000) ). Because exhaustion of administrative remedies is a jurisdictional prerequisite for claims brought pursuant to CADA, and because Plaintiff has not exhausted her administrative remedies, this Court does not have jurisdiction to hear Plaintiff's CADA claim, and her motion for preliminary injunction on this claim is therefore properly denied.
B. Title VII Retaliation
To state a prima facie case of retaliation, a plaintiff must establish that (1) "[s]he engaged in protected opposition to discrimination"; (2) "she suffered an adverse action that a reasonable employee would have found material"; and (3) "a causal connection exists between the protected activity and the materially adverse action." Nealis v. CoxCom , LLC, 731 F. App'x 787, 790 (10th Cir. 2018). In her motion for a temporary restraining order, the Plaintiff does not individually address her retaliation claim, nor is it clear from her Complaint what specific allegations she contends support her retaliation claim.
Plaintiff alleges in her Complaint that she "believed that the defendant was holding up approval of her exemption and accommodation ... in retaliation for plaintiff claiming the exemption and seeking accommodation." ECF 1, ¶ 52. Plaintiff contends that Defendant's responses were "bureaucratically slow, if not intentionally false." Id. at ¶ 54. Plaintiff later alleges generally that "the Defendant has violated [Title VII and CADA] ... by delays in granting a religious exemption, as well as corporate threat of suspension without pay, leading to termination, all as acts of illegal discrimination and retaliation on the basis of religion." Id. at ¶ 78.
To the extent Plaintiff alleges that the delay in granting her exemption constitutes adverse action, she has not offered any argument or support as to why a delay of approximately three weeks amounts to "adverse action that a reasonable employee would have found material." As the Plaintiff acknowledges, the vaccine policy requirements do not go into effect until October 15, 2021. To the extent that Plaintiff suggests that her leave without pay constitutes prohibited retaliation, her claim likely fails for the reasons set forth above.
Even if Plaintiff could establish a prima facie case of retaliation, the Defendant has already offered a non-discriminatory reason for its action—namely, to prevent the spread of COVID-19 among its workforce.
The Plaintiff cannot establish likely success on the merits of her retaliation claim, and she therefore cannot meet the standard for obtaining a temporary restraining order.
C. Plaintiff is not likely to succeed on the merits of her claims
For the reasons set forth herein, Plaintiff is not likely to succeed on the merits of her claims under either Title VII or CADA. Plaintiff is not likely to succeed in establishing that Defendant failed to provide her with a reasonable accommodation. Furthermore, Plaintiff likely cannot overcome Defendant's affirmative defense (for purposes of Title VII) that Plaintiff has failed to exhaust her administrative remedies. Similarly, Plaintiff is not likely to succeed on the merits of her retaliation claim. For these reasons, Plaintiff has failed to meet a required element for establishing entitlement to a preliminary injunction, and her request must therefore be denied.
This Court also likely does not have jurisdiction to consider Plaintiff's CADA claim, and so Plaintiff's request for a preliminary injunction as to that claim fails for this independent reason as well.
II. IRREPARABLE HARM
Even if Plaintiff could establish likely success on the merits of her claim, she would still need to establish that she will suffer irreparable harm if her requested relief is not granted. With regard to irreparable harm, Plaintiff alleges:
[S]he has suffered gross, almost unbearable emotional distress because of the[ ] actions against her and the upcoming suspension without pay, followed by certain termination. Her emotional suffering has been extreme and from which she doubts she will ever fully recover. Plaintiff anticipates that her personal bills will be defaulted upon, and her home mortgage will go into foreclosure for failure to have any income to make payments. In addition, her career will be destroyed and it is unlikely that she will ever recover her financial and professional well-being. After more than 30 years at United, no future employer is going to be willing to take a chance on plaintiff, as her explanation of what United is doing (and did) to her will seem bizarre and will raise unfounded suspicions as to her character, if not her psychological hire-ability.
The Court notes that ECF 8, ¶ 67 is mistakenly numbered at ¶ 25.
"Irreparable harm" means that the injury "must be both certain and great"; it must not be "merely serious or substantial." Prairie Band of Potawatomi Indians v. Pierce , 253 F.3d 1234, 1250 (10th Cir. 2001). Indeed, "irreparable harm is often suffered when the injury can [not] be adequately atoned for in money, or when the district court cannot remedy [the injury] following a final determination on the merits." Id. (internal quotation marks and citations omitted) (alterations in original). Plaintiff's claims that her home will go into foreclosure, that her career will be destroyed, and that no future employer will ever be willing to hire her are speculative. Further, the Tenth Circuit has instructed that "simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compensable by monetary damages." Heideman v. S. Salt Lake City , 348 F.3d 1182, 1189 (10th Cir. 2003).
As the Defendant acknowledges, were Plaintiff to prevail on her claim she would be entitled to reinstatement, back pay, back benefits, and reimbursement of other proven economic damages. ECF 16, p. 20. It thus seems that Plaintiff cannot establish that she will suffer irreparable harm if her request is not granted. This factor therefore weighs against granting the relief requested.
III. BALANCE OF HARDSHIPS
To be entitled to a preliminary injunction, the movant has the burden of showing that "the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction." Heideman v. S. Salt Lake City , 348 F.3d at 1190. Plaintiff does not offer any substantive argument regarding the third preliminary injunction element in either its Motion or its Reply. For this reason alone, Plaintiff has failed to meet her burden as to this element, and this factor thus weighs against granting Plaintiff's requested relief.
Nonetheless, even reading the Plaintiff's motion liberally, the potential harm to her likely does not outweigh the potential injury to the Defendant if the relief is granted. The claimed injury to the Plaintiff in the absence of a preliminary injunction is leave without pay and, according to the Plaintiff, potential termination. Defendant contends that hardship to United if an injunction is issued outweighs Plaintiff's potential injury because the vaccine requirement is a key element of United's overall strategy for operating through the pandemic. ECF 16, p. 23. Further, Defendant contends that there is no remedy if United loses business due to an injunction. Finally, Defendant contends, the issuance of a preliminary injunction in this matter could usher "tag along suits [by other employees] seeking their own injunction against United." Id.
The balance of hardships in this case seems to weigh in the Defendant's favor. As discussed previously, the Plaintiff's claimed injury in the absence of a preliminary injunction is largely economic and likely speculative. The issuance of an injunction, on the other hand, could require the Defendant to fundamentally alter its strategy for addressing the health risks posed to its employees and customers by the COVID-19 pandemic. This factor thus weighs against issuing a preliminary injunction.
IV. PUBLIC INTEREST
A movant also has the burden of demonstrating that the injunction, if issued, is not adverse to the public interest. Heideman v. S. Salt Lake City , 348 F.3d at 1191. The Defendant argues that granting the requested injunction would be adverse to the public interest because "the vaccine policy is intended to help safeguard the health and wellbeing of United's employees, customers, and others who spend time in United facilities or interact with United employees." ECF 16, p. 24 (internal quotations omitted). The Plaintiff's briefing does not address this element of the preliminary injunction standard. As such, the Plaintiff has failed to meet her burden as to this factor, and it thus weighs against awarding a preliminary injunction. Nonetheless, the Court is guided by the decisions and observations of Courts analyzing similar issues.
"No matter any individual stance on COVID-19, every person, including the parties in this case, can agree that ending the COVID-19 pandemic is in our collective best interest—and in the public's best interest, as well, for purposes of balancing equities." Beckerich v. St. Elizabeth Med. Ctr. , No. CIV 21-105-DLB-EBA, 563 F.Supp.3d 633, 645 (E.D. Ky. Sept. 24, 2021). The CDC has consistently instructed that vaccines can reduce the risk of spreading the COVID-19 virus. The Court simply cannot find that enforcement of a policy that protects other employees and conforms to the guidance of the CDC is not in the public interest. See Bridges v. Houston Methodist Hospital, et al. , 4:21-cv-01774 ("The public's interest in having a hospital capable of caring for patients during a pandemic far outweighs protecting the vaccination preferences of 116 employees.") As the court in Beckerich explained, "[a]ctual liberty for all of us cannot exist where individual liberties override potential injury done to others."
The Court thus finds that the public interest would be harmed by the issuance of a preliminary injunction. This factor therefore weighs against the requested belief.
PLAINTIFF'S MOTION TO SUPPLEMENT
On October 14, 2021, at ECF 21, Plaintiff filed a motion to supplement her Motion for Injunctive Relief. Plaintiff specifically asks that the Court issue a TRO to parallel the order issued by Judge Pittman in the Northern District of Texas. See Sambrano v. United Airlines, Inc. , Case No. 21-cv-01074, 2021 WL 4760645 (N.D. Tex. October 12, 2021). This Court is under no obligation to do so and declines to do so here. In his order, Judge Pittman reasons that a TRO is warranted in that case until "the Court can rule on whether a preliminary injunction is warranted." Id. This Court has considered the motion submitted by Ms. Barrington and all arguments made therein and has determined that the Plaintiff here is not entitled to a preliminary injunction.
CONCLUSION
To establish an entitlement to a preliminary injunction, the Plaintiff must show: "(1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harms that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Aposhian v. Barr , 958 F.3d at 978. Plaintiff here has failed to show that any of these factors weighs in favor of granting the preliminary injunction. For these reasons, Plaintiff's request for a preliminary injunction is DENIED.