Case 1:21-cv-02816-JPH-DML Document 1 Filed 11/08/21 Page 1 of 78 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`DR. PAUL HALCZENKO,
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`JENNIFER JIMENEZ,
`ERIN NICOLE GILLESPIE,
`VALERIE FRALIC, and
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`KRISTIN EVANS, on behalf of
`Themselves and all those
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`similarly situated,
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`Plaintiffs,
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`vs.
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`ASCENSION HEALTH, INC., and
`ST. VINCENT HOSPITAL AND
`HEALTH CARE CENTER, INC.,
`D/B/A ASCENSION ST. VINCENT
`HOSPITAL,
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`Defendants.
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`Cause No. 1:21-cv-2816
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`JURY TRIAL REQUESTED
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`CLASS ACTION COMPLAINT FOR TEMPORARY RESTRAINING ORDER,
`PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AND DAMAGES
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`“Title VII does not contemplate asking employees to sacrifice their jobs to observe
`their religious practices.”
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`Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 456 (7th Cir. 2013)
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`INTRODUCTION
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`1.
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`This is a class action brought to remedy a pattern of discrimination by
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`Ascension Health, Inc. (“Ascension”) against employees who requested religious
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`accommodations from Ascension’s mandate that its employees receive the COVID-
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`Case 1:21-cv-02816-JPH-DML Document 1 Filed 11/08/21 Page 2 of 78 PageID #: 2
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`19 vaccine and to seek a temporary restraining order (TRO) and preliminary
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`and permanent injunctive relief before Plaintiffs are suspended without
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`pay on November 12, 2021, and then terminated on January 4, 2022.
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`2.
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`Rather than complying with its obligations under Title VII of the Civil
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`Rights Act of 1964, (Pub. L. 88-352), codified at 42 U.S.C. § 2000e et seq. (“Title
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`VII”), Ascension informed the requesting employees that their requests for
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`exemptions were denied, that they will be suspended without pay on November 12,
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`2021, and they will be considered to have “voluntarily resigned” (i.e., they will be
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`terminated) on January 4, 2022.
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`3.
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`In every case, Ascension’s sole explanation for its denial of religious
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`exemptions was a single sentence emailed to each requester:
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`Due to the nature of your role, approving this accommodation
`poses undue hardship to the organization due to increased risk
`to the workplace and patient safety.1
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`Ascension’s actions have left Plaintiffs with the impossible choice of
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`4.
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`either taking the COVID-19 vaccine, at the expense of their religious beliefs or
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`losing their livelihoods. In doing so, Ascension has violated Title VII by failing to
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`1 See, e.g., 10.1.2021 Email from Service Desk <ascensionprod@service-now.com to
`PHALCZEN@ascension.org, Subject: The Religious Exemption for COVID-19 Vaccine
`request is denied for Halczenko, Paul W. (App. 20) (Indiana). (Plaintiffs’ Exhibits
`referenced in this Complaint are submitted in the contemporaneously filed Appendix and
`cited to herein as (App. #). See also Picchiottino Decl. ¶ 36, (App. 81) (Wisconsin); Brezillac
`Aff. ¶ 36, (App. 77) (Oklahoma); “Catholic Hospital Rejects 650 Workers’ Religious
`Exemptions from the COVID Vaccine Mandate,” Christianity Daily (Oct. 13, 2021) (App.
`23) (reflecting Michigan associates were given the same justification for denials of their
`exemptions as associates in Indiana, Oklahoma and Wisconsin).
`2
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`provide reasonable accommodations, and by refusing to follow federal law in
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`assessing religious exemptions to its vaccine mandate.
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`5.
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`As explained below, the robotic explanation given by Ascension to
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`applicants for religious exemption and the failure to consider reasonable
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`accommodations or to properly assess and establish “undue hardship” as required
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`by Title VII, require immediate intervention by this Court to prevent irreparable
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`harm to Plaintiffs and the class they represent.
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`BRIEF OVERVIEW OF PLAINTFFS’ KEY CLAIMS AND
`CONTENTIONS
`The named Plaintiffs are five healthcare heroes, a doctor, a nurse
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`6.
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`practitioner, and three registered nurses, who served their patients bravely, risking
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`their lives throughout the early phase of the COVID-19 pandemic when little was
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`known about the SARS-CoV-2 virus.
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`7.
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`Plaintiffs now face imminent termination from their jobs based solely
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`upon their sincerely held religious beliefs which compel them to resist forced
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`vaccination. Ironically, the very religious faith that undergirded their resolve to risk
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`their lives, if necessary, for their patients will be the reason that – without court
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`intervention – Ascension will strip their employment, sever them from their life’s
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`work, and remove their income in just a few days’ time.
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`8.
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`The development of the COVID-19 vaccines was a groundbreaking
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`scientific, medical, and logistical wonder. It is therefore a tragic irony that one of
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`the groundbreaking scientific breakthroughs of all time is being mistakenly relied
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`upon by Ascension – one of the nation’s largest healthcare employers – to justify a
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`3
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`sweeping disregard of long-standing statutory commands regarding how employers
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`are to balance health and safety concerns with the rights of their employees.
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`9.
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`Simply, under Title VII if an employee seeks a religious
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`accommodation American employers cannot summarily impose employer-preferred
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`workplace rules which abridge an employee’s sincerely held religious beliefs without
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`genuine and good-faith dialogue and consideration of proposed accommodations and
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`objective evidence.
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`10. Here, Ascension has upended Title VII’s requirements and seeks to
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`capitalize on the COVID-19 vaccines’ existence as justification to run rough-shod
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`over its legal obligations and summarily suspend without pay, and ultimately
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`terminate, scores of employees.
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`11. The paucity of evidence and reasoning Ascension has offered to justify
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`trammeling its employees’ religious rights is appalling. Ascension, like many
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`healthcare employers, hailed its employees as “healthcare heroes”2 throughout the
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`early pandemic period because they risked their lives to fill a critical need; yet
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`overnight they became expendable without Ascension providing them any
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`explanation, data or metrics that could justify such an about-face.
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`12. Ascension’s one-sentence justification that granting religious objections
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`to the COVID-19 vaccines would create “increased risk to the workplace and patient
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`safety” is pretextual, unsupported by Plaintiffs’ experiences, and is believed to be
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`2 See, e.g., Ascension TV commercial entitled, “Healthcare Heroes,” available at:
`https://www.ispot.tv/ad/nAo4/ascension-health-healthcare-heroes; Ascension produced video
`describing its employees as “Healthcare Heroes.” available at:
`https://healthcare.ascension.org/blog/2020/04/COVID-1919-healthcare-heroes.
`4
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`inconsistent with Ascension’s own experience and whatever data it may have from
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`its healthcare facilities over the course of the pandemic (which Ascension has
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`unfortunately not shared with its employees).
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`13. But, even more fundamentally, the idea that employees seeking
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`religious accommodation may be terminated merely upon a claim of “increased risk”
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`is flawed as a matter of law.
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`14. Title VII does not permit an employer to deny a requested
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`accommodation because of “increased risk.” Rather, under Title VII the employer’s
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`burden is to show “undue hardship”—and merely “increased” does not without more
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`equal “undue.” See, e.g., Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455
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`(7th Cir. 2013) (“Title VII requires proof . . .of hardship, and ‘undue’ hardship at
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`that.”); Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th
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`Cir. 1978) (“Undue hardship means something greater than hardship.”).3
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`15. Thus, merely incanting the abstract notion of “increased risk” is not
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`equivalent to showing “undue” hardship and is therefore insufficient to satisfy
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`Ascension’s statutory responsibility to identify undue hardship.
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`16. Ascension’s reliance on “increased risk” is an attempt to import a
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`wholly new legal standard, not countenanced by any statute, rule, regulation or
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`case, to justify summarily discharging employees seeking religious exemptions.
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`17. To the contrary, the law sensibly imposes a qualitative/quantitative,
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`evidence-based standard. See, e.g., Nottelson v. Smith Steel Workers D.A.L.U. 19806,
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`3 To be clear, Plaintiffs do not concede they pose any increased risk whatsoever.
`5
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`AFL-CIO, 643 F.2d 445, 452 (7th Cir. 1981) (rejecting “conjectural” undue hardship
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`claim); Brown v. Gen. Motors Corp., 601 F.2d 956, 961 (8th Cir. 1979) (speculation
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`not sufficient to discharge burden to prove undue hardship); Anderson, 589 F.2d at
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`402 (“Undue hardship cannot be proved by assumptions nor by opinions based on
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`hypothetical facts.”); Drazewski v. Waukegan Dev. Ctr., 651 F. Supp. 754, 758 (N.D.
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`Ill. 1986) (speculation does not meet undue hardship standard).
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`18. Furthermore, Ascension’s own policies, practices, experience, publicly
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`available government data, and other available information demonstrate that
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`Ascension likely cannot even meet the exceedingly low (and unlawful) bar—that is
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`the low bar of establishing increased risk—it has attempted to set for itself.
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`19. Moreover, numerous inconsistencies suggest that Ascension’s reliance
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`on alleged “increased risk” is pretextual and is not the true reason for its’ wholesale
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`denial of religious exemptions.
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`20. First, Ascension’s own written policies are inconsistent with its claim.
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`Those policies state that if an individual receives a religious or medical exemption,
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`Ascension “follow[s] [its] normal accommodations process and the exempted
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`associate [is] able to care for patients but . . . need[s] to wear required personal
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`protective equipment (PPE) at all times while on Ascension property.” 4
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`21.
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`If Ascension had evidence that unvaccinated individuals increased risk
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`to patients sufficiently to satisfy the undue hardship standard it would not
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`4 See Questions and Answers about Ascension’s Associate COVID--19 Vaccination Policy
`((Ascension Vaccination Policy Q&A”), at 5 (added August 12, 2021) (App. 12).
`6
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`maintain a written policy permitting unvaccinated employees to continue to engage
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`in patient care.
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`22. Second, in practice Ascension has approved medical exemptions from
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`its vaccine mandate and allowed unvaccinated employees with medical exemptions
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`to continue to provide patient care.5
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`23. Ascension’s illogical position must therefore be that those giving a
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`secular (e.g., medical) reason for not being vaccinated can provide patient care but it
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`is too risky for individuals with a religious reason to provide such care.
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`24. Third, Ascension has a twenty (20) month track record of dealing with
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`the COVID-19 pandemic in its healthcare facilities and is believed to lack any data-
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`driven, evidentiary basis for claiming that religious objectors who do not take the
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`vaccines will materially increase workplace risks.
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`25. Ascension has never sought to support its vaccination mandate
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`through any examples of healthcare worker-to-patient transmission of the virus at
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`Ascension - St. Vincent Hospital in Indianapolis or elsewhere.
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`26. Plaintiffs report, based on their own extensive experience, that there
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`have not been significant healthcare worker-to-patient transmissions of the SARS-
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`CoV-2 virus within Ascension healthcare facilities since Ascension healthcare
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`employees began employing rigorous mitigation measures (such as temperature
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`monitoring, health assessments, masking and other measures) to prevent workplace
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`transmission of the virus.
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`5 Halczenko Aff. ¶ 76, (App. 1) (Indiana); Jimenez Aff. ¶ 73, (App. 2) (Indiana);
`Picchiottino Decl. ¶ 48, (App. 81) (Wisconsin); Brezillac Aff. ¶ 48, (App. 77) (Oklahoma).
`7
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`27. According to widely available scientific research these mitigation
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`measures are what keep Ascension patients safe from transmission of the virus in
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`Ascension facilities and are what have kept patients and healthcare workers safe
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`since the outbreak of the pandemic.6
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`28. Mitigation measures are a proven, effective, scientific, strategy that
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`can ensure the protection of Ascension patients going forward.
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`29. Fourth, information from the U.S. Food & Drug Administration (“U.S.
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`FDA”) is inconsistent with Ascension’s one-sentence justification.
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`30. Except on this one point, Ascension, relies on the U.S. FDA’s guidance
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`regarding the COVID-19 vaccines, frequently citing to FDA information about the
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`vaccines on Ascension’s website.
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`31. The U.S. FDA acknowledges that while it was hoped that the COVID-
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`19 vaccines would reduce or prevent the transmission of the virus, “the scientific
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`6 See collection of scientific studies cited in CMS Interim Final Rule (cited in the Federal
`Register at 86 Fed. Reg. 61,570 (Nov. 5, 2021)) submitted in Plaintiff’s Appendix as
`Exhibits 63 to 71 (App. 63 – 71) “Hospital-Acquired SARS CoV-2 Infection: Lessons for
`Public Health,” Aaron Richterman, M.D. et al, 324 JAMA, 2155–56 (2020) (App. 64)
`available at: https://jamanetwork.com/journals/jama/fullarticle/2773128; see also “Hospital-
`acquired COVID-19 tends to be picked up from other patients, not from healthcare
`workers,” Science Daily, (Aug. 24, 2021) (App. 74) available at:
`https://www.sciencedaily.com/releases/2021/08/210824083504.htm; “Study Shows Low Risk
`of COVID-19 Transmission in Hospital Among Patients Undergoing Surgery,” New York-
`Presbyterian Newsroom (Feb. 24, 2021) (App.73) available at:
`https://www.nyp.org/news/study-shows-low-risk-of-covid-19-transmission-in-hospital-
`among-patients-undergoing-surgery; “Could We Do Better on Hospital Acquired COVID-19
`In a Future Wave?” David Oliver, 372 BMJ (Jan 13, 2021) (App. 72) available at:
`https://www.bmj.com/content/372/bmj.n70.
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`8
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`community does not yet know if the COVID-19 Vaccine[s] will reduce such
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`transmission.”7
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`32. Fifth, U.S. Centers for Disease Control and Prevention (“CDC”)
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`Director, Dr. Rochelle Walensky, has stated as recently as October 8, 2021, about
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`COVID-19 vaccines that, “what they cannot do any more is prevent transmission.”8
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`33. Sixth, many other healthcare providers with vaccination mandates
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`have not resorted to the wholesale rejection of religious exemptions. Numerous
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`other Indianapolis hospitals permit healthcare workers with religious exemptions to
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`continue to provide patient care.9
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`34. Ascension has violated Title VII by substituting an “increased risk”
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`standard for the statutory “undue hardship” standard and has failed to adequately
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`address Plaintiffs’ requested accommodations under the undue hardship standard.
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`Additionally, there is abundant evidence Ascension’s “increased risk” justification is
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`pretextual and a cover for religious discrimination.
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`7 See, e.g., Pfizer-BioNTech COVID-19 Vaccine Frequently Asked Questions, Food and Drug
`Administration, available at: https://www.fda.gov/emergency-preparedness-and-
`response/coronavirus-disease-2019-covid-19/pfizer-biontech-covid-19-vaccine-frequently-
`asked-questions (App. 47)
`8 CDC Director, Dr. Rochelle Walensky, Oct. 8, 2021, available at:
`https://youtu.be/swlUv2SbmT8 .
`9 See, e.g., “Franciscan Health gives employees Until Nov. 15 to get fully vaccinated,”
`Rusell, John, Indianapolis Business Journal (Sept. 27, 2021) (App. 79); “Hospitals offer
`exemption for COVID-19 vaccine mandate. Many employees took it,” Rudavsky, Shari,
`Indianapolis Star (Oct. 13, 2021) (App. 80); Rentschler Aff. ¶¶ 5-8 (App. 76) (Eskenazi
`Hospital Respiratory Therapist); Haerr Aff. ¶¶ 4-7 (App. 75) (Community North (Kokomo),
`direct patient care).
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`9
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`35. Plaintiffs have recently filed their charges of discrimination with the
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`Equal Employment Opportunity Commission (EEOC) asking that the EEOC
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`investigate their charges on a class wide basis.
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`36. Therefore, this Court should promptly enter a temporary restraining
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`order and preliminary injunction enjoining Ascension from terminating any
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`Ascension associate who has applied for a religious exemption to its vaccine
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`mandate until the EEOC has had the opportunity to investigate Plaintiffs’ recently
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`filed EEOC charges.
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`A.
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`Ascension Health Care, Inc.
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`THE PARTIES
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`37. Plaintiffs are employed by St. Vincent Hospital and Health Care
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`Center, Inc. (referred to herein as “St. Vincent” “St. Vincent Hospital” or “Ascension
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`– St. Vincent”), which does business as Ascension – St. Vincent Hospital in
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`Indianapolis, Indiana.
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`38.
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`St. Vincent owns and/or operates healthcare facilities in Indiana,
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`including Ascension – St. Vincent and the Peyton Manning Children’s Hospital at
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`St. Vincent (“PMCH”), both located at 2001 W 86th Street in Indianapolis, Indiana,
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`and the Ascension – St. Vincent Women’s Hospital at 8111 Township Line Road in
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`Indianapolis, Indiana (“SVWH).10
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`39.
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`St. Vincent is owned by Ascension Health Care, Inc. (“Ascension”) in
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`St. Louis, Missouri.
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`10 Unless stated otherwise, PMCH and SVWH are both intended to be included in any
`reference to Ascension – St. Vincent, St. Vincent Hospital, or St. Vincent.
`10
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`40. Ascension exercises ultimate direction and control over the activities of
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`Ascension - St. Vincent Hospital and Ascension – St. Vincent Women’s Hospital,
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`including having final decision-making authority in relation to employees at both
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`hospitals who applied for religious exemptions to the Ascension vaccine mandate
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`described below.
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`41. Ascension - St. Vincent Hospital (including PMCH and SVWH) are
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`part of the Ascension national health care system which is controlled by Ascension
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`corporate headquarters.
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`42. By virtue of the control exercised by Ascension over Ascension - St.
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`Vincent (including PMCH and SVWH) and their employees both Ascension and
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`Ascension – St. Vincent are employers of Plaintiffs within the meaning of 42 U.S.C.
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`§ 2000e(b) and Plaintiffs are employees of both Ascension and Ascension – St.
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`Vincent within the meaning of 42 U.S.C. § 2000e(f).
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`43. Within the meaning of 42 U.S.C. § 2000e(b) Ascension and Ascension –
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`St. Vincent acted as agents of each other in relation to the employment actions
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`described in this Complaint.
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`44. Ascension and Ascension - St. Vincent employ more than fifteen (15+)
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`employees at each of the St. Vincent Hospital, PMCH and SVWH locations.
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`45. Ascension, though its national healthcare system, operates more than
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`2,600 sites of care – including 142 hospitals and more than 40 senior living facilities
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`– in 19 states and the District of Columbia, while providing a variety of services
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`including clinical and network services, venture capital investing, investment
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`11
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`management, biomedical engineering, facilities management, risk management,
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`and contracting through Ascension’s own group purchasing organization.
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`https://www.ascension.org/About?intent_source=nav_footer&_ga=2.257679630.4065
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`85572.1634768682-256273680.1634270751.
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`46. Across its system Ascension employs more than 150,000 healthcare
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`workers whom it refers to as “associates” and 40,000 aligned providers. Id.
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`47. Title VII applies to Ascension’s healthcare workforce including all
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`“Ascension associates” and Ascension’s doctors, nurse practitioners, registered
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`nurses, healthcare technicians and other healthcare workers who are all
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`“employees” of Ascension within the meaning of Title VII.
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`48. Ascension is required to comply with Title VII in administering its
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`COVID-19 vaccination, medical and religious exemption processes for its employees
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`and “associates” in its national healthcare system (including all doctors, nurses,
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`healthcare technicians, and other healthcare workers) including Plaintiffs and the
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`class Plaintiffs seek to represent.
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`B.
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`The Plaintiffs and Proposed Class Representatives
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`49. Dr. Paul Halczenko, M.D., is a Pediatric Critical Care Physician at
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`PMHC. Dr. Halczenko has been employed by Ascension since October 1, 2012 and is
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`a citizen and resident of Marion County, Indiana.
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`50. During the early days of the COVID-19 pandemic and continuing
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`through the present, Dr. Halczenko admitted, stabilized, diagnosed, and treated
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`children in end-organ failure related to primary infection with SARS-CoV-2 (the
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`12
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`virus responsible for COVID-19), or the uncommon but severe complication in
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`children known as Multisystem Inflammatory Syndrome in Children following
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`SARS-CoV-2 exposure (“MIS-C”). He continued his lifesaving work for other
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`patients with other critical illnesses during the pandemic, including but not limited
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`to failure of the lungs due to other viral or bacterial infections, birth defects, and
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`defects of heart, lungs, or other organs threatening life, traumatic brain injuries or
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`other life-threatening bleeding inside the skull, and other illnesses typical of
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`pediatric critical illness.
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`51. Dr. Halczenko will suffer irreparable harm if he is suspended without
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`pay on November 12 and/or his employment is terminated on January 4. As
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`explained further in his affidavit, Dr. Halczenko is obligated to make ongoing
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`payments for tuition to send his children to Catholic school and the presence of a
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`non-compete clause in Dr. Halczenko’s employment contract with Ascension – St.
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`Vincent will prevent him from seeking employment as a physician within the area
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`surrounding Ascension – St. Vincent and will force him into long commutes or
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`require him to uproot and re-locate his family. 11
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`52. Further, termination of Dr. Halczenko’s employment by Ascension –
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`St. Vincent would create troublesome issues with Dr. Halczenko’s medical licensure,
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`hospital privileges, and contracts with third-party insurance payors. As explained
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`in his affidavit, due to unique issues related to licensing and hospital privileges,
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`Ascension – St. Vincent’s termination of his employment will operate upon Dr.
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`11 See Halczenko Aff. ¶¶ 14, 16 (App. 1).
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`Halczenko like a “Scarlet Letter” and directly, immediately, and permanently
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`impair Dr. Halczenko’s ability to seek alternative employment.12
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`53. Nurse Practitioner Jennifer Jimenez is an employee of Ascension
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`and Ascension - St. Vincent Hospital in Indianapolis, Indiana where she has been
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`continuously employed since May 21, 2012. Mrs. Jimenez began her career at St.
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`Vincent as a Registered Nurse. She subsequently obtained her master’s degree and
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`transitioned to Nurse Practitioner on August 12, 2018. Nurse Practitioner Jimenez
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`works as a Hospitalist with the Adult Internal Medicine Service at St. Vincent
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`Hospital where she admits, diagnoses, treats, and performs ongoing complex
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`medical management of adult patients. She is a citizen and resident of Hamilton
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`County, Indiana.13
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`54. For months during the early part of the COVID-19 pandemic in 2020
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`Nurse Practitioner Jimenez worked long hours diagnosing, treating, admitting, and
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`providing ongoing care for acutely ill adult patients with the SARS-CoV-2 virus.
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`Specifics about the care she provides are set forth in her affidavit. 14
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`55.
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`Suspension without pay on November 12 would cause significant and
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`irreparable harm to Nurse Practitioner Jimenez and to her family and career. The
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`Jimenez family has two children in college and loss of Ms. Jimenez’s income would
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`require at least one child to discontinue college. If Ms. Jimenez is terminated the
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`Jimenez family will likely lose their home. Additionally, like Dr. Halczenko, Nurse
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`12 Id. at ¶ 17.
`13 See Jimenez Aff. ¶¶ 4, 17(App. 2).
`14 Id. ¶ 18
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`Practitioner Jimenez would experience extreme and stressful licensure and
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`insurance difficulties if suspended without pay or terminated. She also has a non-
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`compete in her St. Vincent contract. The impacts on Ms. Jimenez if terminated are
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`described more fully in her affidavit.15
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`56. Nurse Erin Nicole Gillespie is an employee of Ascension and St.
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`Vincent at SVWH in Indianapolis, Indiana. Nurse Gillespie has been employed by
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`St. Vincent since May 2007. Nurse Gillespie is a citizen and resident of Boone
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`County, Indiana. Nurse Gillespie works in the High-Risk OB/Labor and Delivery
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`Unit at St. Vincent Women’s Hospital where she provides specialized nursing care
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`to women experiencing pregnancies ranging from uncomplicated to high
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`risk/medically complex during the antepartum, intrapartum, and postpartum
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`periods in a Level IV rated obstetrical unit.16
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`57. For months during the early part of the COVID-19 pandemic in 2020
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`Nurse Gillespie worked long hours providing patient care while pregnant herself
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`and then with a newborn and another young child at home. While much was still
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`unknown about the virus, it’s transmissibility, and the availability/accuracy of
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`patient testing, she continued to provide patient care despite the potential risks to
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`herself and her family. Early on, she provided care to patients without knowing if
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`they were COVID-19 positive or not. More about Nurse Gillespie’s care of patients is
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`set forth in her affidavit.17
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`
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`15 Id. at 8–16.
`16 See Gillespie Aff. ¶¶ 4, 10 (App. 4).
`17 Id. ¶ 11.
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`15
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`58. Nurse Gillespie will suffer irreparable harm if she is suspended
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`without pay on November 12. As explained in her affidavit, Nurse Gillespie’s salary
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`helps to provide for the essential needs of her family. She and her husband have
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`two young children, one who is currently in preschool requiring tuition payments.
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`Mortgage payments, utility bills, and groceries to feed the Gillespie family cannot
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`wait for monetary damages to possibly be awarded at an unknown date in the
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`future. 18
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`59. Nurse Valerie Fralic is an employee of Ascension and St. Vincent and
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`works at PMCH in Indianapolis, Indiana where she has been employed since 2019.
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`Nurse Fralic is a citizen and resident of Putnam County, Indiana.19
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`60. For months during the early part of the COVID-19 pandemic in 2020,
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`Nurse Fralic worked long hours providing patient care to children in end-organ
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`failure related to primary infection with SARS-CoV-2. She comforted and cried with
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`parents who lost a child to the complications associated with COVID-19. She helped
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`admit and stabilize many children suffering from the uncommon but severe MIS-C
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`complication. She also continued caring for acutely ill children, including but not
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`limited to children with respiratory, cardiac, and neurological diagnosis. On
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`countless occasions Nurse Fralic was called upon to leave the unit she was trained
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`on to help in adult COVID-19 units that were understaffed during a time when
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`18 Id. at ¶ 9.
`19 See Fralic Aff. ¶ 4 (App. 7).
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`16
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`Case 1:21-cv-02816-JPH-DML Document 1 Filed 11/08/21 Page 17 of 78 PageID #: 17
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`little was known about SARS-CoV-2. She willingly did this because of her love for
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`her patients and her commitment to the wellbeing of others.20
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`61. On November 5, 2021, Nurse Fralic was named Employee of the Month
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`for the month of November for the Pediatric Intensive Care Unit (PICU) at
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`PMCH.21
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`62. Nurse Fralic devotes much of her non-work time to a Christian non-
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`profit boy’s home where her husband is employed. Nurse Fralic is the primary wage
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`earner in their family and her income is used not just for Nurse Fralic and her
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`husband, but to care for many young men in the boy’s home program. Suspension
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`without pay and/or termination of her job by Ascension - St. Vincent would have a
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`significant impact on the Fralic’s participation in the boy’s home ministry and the
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`support they can give to the youth they mentor. 22
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`63. Nurse Kristin Evans is an employee of Ascension and St. Vincent at
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`the PMCH in Indianapolis, Indiana where she has been employed since November
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`2015. Nurse Evans is a citizen and resident of Hendricks County.23
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`64. Nurse Evans is a registered nurse in the PICU at the PMCH where
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`she cares for very sick children ages 0-17 years. Nurse Evans is part of the
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`extracorporeal membrane oxygenation (ECMO) team and cares for ECMO patients
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`in the ICU. ECMO is used in critical care situations to allow blood to bypass the
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`heart and lungs to permit these organs to rest and heal. Nurse Evans also serves as
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`
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`20 Id. at ¶ 13.
`21 Fralic Supplemental Declaration ¶ 3 (App. 8).
`22 Id. at ¶ 9.
`23 See Evans Aff. ¶ 4 (App. 5).
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`17
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`Case 1:21-cv-02816-JPH-DML Document 1 Filed 11/08/21 Page 18 of 78 PageID #: 18
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`a charge nurse, working shifts in which she oversees her entire unit as well as the
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`nurses working the unit. The care Nurse Evans provides to patients is more fully
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`described in her affidavit.24
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`65. Nurse Evans will suffer irreparable harm if she is suspended without
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`pay on November 12. As explained in her affidavit, Nurse Evans is going through a
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`divorce and will soon be paying her mortgage on her own while caring for her three
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`children, including an infant. Losing her job would mean loss of health insurance
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`for her and her children, inability to pay her mortgage and possible loss of her
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`home, as well as inability to pay school tuition for her 13-year and 5-year-old
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`daughters. Additionally, the severe stress caused by the potential loss of her job at
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`Ascension – St. Vincent has caused health impacts described in her affidavit. 25
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`JURISDICTION & VENUE
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`66. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§
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`1331, 1343, and 42 U.S.C. § 2000e-5(f)(3).
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`67. Plaintiffs’ claims for declaratory and injunctive relief are authorized by
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`28 U.S.C. §§ 2201 and 2202.
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`68. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)
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`because a substantial part of the events complained of herein occurred in this
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`District and Division.
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`FACTUAL ALLEGATIONS
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`A.
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`The COVID-19 Pandemic
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`
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`24 Id. at ¶ 14.
`25 Id. at ¶¶ 8–13.
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`Case 1:21-cv-02816-JPH-DML Document 1 Filed 11/08/21 Page 19 of 78 PageID #: 19
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`69. By Spring 2020, the Alpha variant of the novel coronavirus SARS-CoV-
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`2 had spread around much of the world including in the United States.
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`70.
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`In response, Ascension began implementing mitigation procedures for
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`its workforce, including the following requirements for its employees:
`
`(1)
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`daily personal assessments of both personal health
`(including temperature, symptoms, etc.) and required
`disclosure of any potential exposure to others with
`COVID-19,
`daily onsite temperature testing,
`periodic COVID-19 testing,
`the obligation to not work when symptomatic or
`potentially exposed to COVID-19 pursuant to CDC
`Guidelines,
`submission to any required contact tracing,
`handwashing and hygiene, and
`use of personal protective equipment (PPE), including
`masking, face shields, gowns, and disposable gloves as
`required under the circumstances.26
`71. The foregoing mitigation procedures appear to have been highly
`
`(2)
`(3)
`(4)
`
`(5)
`(6)
`(7)
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`effective in preventing the spread of the SARS-CoV-2 virus and its variants within
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`Ascension facilities.
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`72. Many Ascension employees, including each Plaintiff and other affiant
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`employees of Ascension, are unaware of any cases of documented transmission of
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`the SARS-CoV-2 virus and/or its variants from any Ascension employee to another
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`Ascension employee or to a patient.
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`26 See, e.g., Halczenko Aff. ¶ 21, (App. 1).
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`19
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`Case 1:21-cv-02816-JPH-