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SJC 13440 Fallon Community Health Plan, Inc.
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V Katie Dishnica and another.
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Good morning, Your Honors, and may I please the court.
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Francesco DeLuca on behalf
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of Fallon Community Health Plan, Inc.,
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the appellant in this matter.
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This court should reverse the District Court's judgment
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awarding Ms. Jefferson unemployment benefits,
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because the evidence conclusively demonstrates
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that she knowingly violated a reasonable
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and uniformly enforced policy that Fallon had maintained,
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namely, a mandatory vaccination policy
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requiring its home healthcare workers
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to receive a vaccine against the COVID-19 virus.
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But she wasn't able to comply
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due to her firmly-held religious beliefs, right?
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That's correct, Your Honor.
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That was her justification for not receiving the vaccine.
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And it wasn't somehow she was making it up,
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or anything like that?
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No, Your Honor, Fallon had no reason to doubt it.
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Fallon did not address the sincerity or integrity
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of any of its employee's religious beliefs.
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What it did was it went through a process of evaluating
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whether it could accommodate those beliefs
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while accounting for patient safety.
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And they realized they couldn't do that.
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They realized they could not do that.
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And she was dismissed.
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Yes, correct.
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Didn't she get unemployment benefits?
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This is related
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to the chief's question.
Hold up for one second.
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This is related
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to the chief's question, Your Honor.
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Because I was a little bit biased at your reply brief.
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When we sent out the amicus solicitation,
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both basis referenced the sincerely held religious beliefs.
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How is that not directly implicating
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the establishment clause?
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And when we now talk about the other statutory basis
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and whether or not there's substantial evidence for this,
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how do we not consider that implication?
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So, Your Honor, throughout the proceeding,
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the issue has always focused on the statutory text.
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And on the knowing policy violation prong,
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the DUA's brief concedes that the only issue
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is reasonableness, whether the policy
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was reasonable on its face and as applied to Ms. Jefferson.
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[Justice Wendlandt] But don't we have
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to interpret the statute in light
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of the First Amendment rights?
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Your Honor, and Amici make that argument,
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but our position is that puts the cart before the horse
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because the First Amendment in Article 46,
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it takes a two step approach: Does a, an action,
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a government activity substantially burden
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a religious belief or the exercise of a religious belief?
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And if so, we go to the second step, which is,
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is there a sufficiently compelling government interest
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to justify that burden?
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And because no, well, no party,
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neither Ms. Jefferson nor the DUA had ever raised
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that awarding her benefits
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would infringe her religious beliefs,
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there was no reason to establish a record
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on that second step,
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which is, is there a compelling government interest?
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For example,
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how many claims did the DUA anticipate receiving
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of this nature?
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How many did it in fact receive?
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How long did they take to process?
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What was the impact on the fund?
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What was the status of the unemployment fund
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and the financial integrity of the program
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during the pandemic?
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Another critical issue is why did the DUA issue a memo,
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an internal policy memo, setting forth
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a list of questions for its adjudicators to ask
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at the initial stage saying,
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"A claimant will be found ineligible for benefits
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under the knowing policy violation prong
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and/or the deliberate misconduct prong
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if his or her failure to receive vaccination
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was due to a medical condition,
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or a sincerely held religious belief
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provided there was an opportunity to see itself recognized,
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that it had an interest in denying benefits to claimants,
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even those who couldn't comply with the vaccination mandate
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for religious or medical reasons."
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It had an interest in denying benefits
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and it's the statutes, in fact, required it to do so,
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opportunity for the employee to seek an exemption.
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And that opportunity was provided here.
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Ms. Jefferson-
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I'm confused by what you're arguing.
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Are you saying because there was
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an exemption request provision, even though it's denied,
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that saves the constitutionality of the statute or what-
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No, your Honor
Just it explains what
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the agency.
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The point there was,
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when we get to the second step
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of First Amendment Article 46, strict scrutiny
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to justify a burden on religion,
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a question that we would've asked the DUA potentially
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had the DUA or Ms. Jefferson raised,
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Oh, would've been, what was the department's purpose
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or intent in issuing this memo saying
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the department could deny benefits
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under these circumstances.
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So why was the department doing that?
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What was the study?
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What was the analysis?
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What was the thought process?
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Because the department contemplated
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denying religious objectors unemployment benefits,
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provided there was a policy.
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The issue there is, at the second step
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of strict scrutiny, why was that policy memo issued?
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But the department avoids the issue,
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and the district court avoids it on different grounds.
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But you know, one of the amicus briefs makes
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the point we've made,
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which is we gotta interpret these statutes
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in a way that avoids First Amendment problems.
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And isn't what you're arguing
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that someone who knowingly who's not to do something
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is still knowingly violating a policy?
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And doesn't that raise First Amendment problems
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if particularly given the US Supreme Court's
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extremely protective decisions lately in this area?
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Your Honor, the United States Supreme Court decisions
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in this area of Sherbert, Hobby, and Thomas all got
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to the second.
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You're saying go back?
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That we have to send this case back,
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is that what you're saying?
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So you have an opportunity to marshal the evidence
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and cross-examine the department
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as to why they had phrased the regulation
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so that it was just an opportunity,
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not an in fact allowance of an exemption?
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That would be one position
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is the First Amendment issue itself is waived,
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and this court recognizes
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that parties can waive First Amendment issues.
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In a very similar case,
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Commonwealth versus Obie.
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This court found in 2016, defendant who has a condition
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of probation was required to attend a class on Islam,
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waive the argument that that requirement violated
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the establishment and free exercise clauses
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because she never brought it up in the lower court court.
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Wouldn't she win in the lower court?
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I believe so, your Honor.
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But that issue is still found to be-
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Well, I'm wondering because when you take
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the victory, you don't marshal all sorts of arguments.
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I'm wondering if the waiver argument applies
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in the context here where she's won.
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That's correct, your Honor.
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It could be a potential distinction,
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but there are numerous other cases
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where a constitutional,
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a very important constitution issue
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was not raised below, raised belatedly on appeal.
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And this court has found it's waived
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and we cycle those three.
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You keep saying that,
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but that's still the part that confuses me,
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that this was brought up as a result
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of our amicus solicitation, and they shouldn't directly,
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it doesn't come right out and say establishment cause,
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but it comes out and says sincerely held religious beliefs.
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So that amicus solicitation is gonna elicit
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what we got back from the ACLU.
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But let me just sidestep that for a second.
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You are making an argument that on the statutory basis
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in the review that you should win. Okay?
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Do you agree that if when it got to Judge LoConto
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that he could affirm the agency's decision
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on any basis that appears in the record?
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Yes, your Honor, he could have.
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Okay. So it brings up my concern about
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the reasonableness of all of this.
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Looking at the hearing officer's findings of fact,
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they could be more robust.
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But one of the things about the reasonableness issue
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about as applied, there was a lot more evidence here
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than the hearing officer talked about in the record
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that was before Judge LoConto, right?
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So one of the things that your arguing is,
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because of the direct contact that she had
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with the population you served,
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the offer of wearing PPE or even a full on hazmat suit
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just wasn't feasible, wasn't viable, right?
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But record, that's what she was required to do.
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Because, you know, you keep saying,
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or at least the appearance is that she was in,
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going into people's homes directly
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administering aid in the record was.
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She worked at a group facility where, up until a point,
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I don't know what the exact period of time was,
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Fallon required their employees
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to use exactly what she was proposing.
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There was also evidence in the record
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that Fallon set up a, I don't know if it was hospitals,
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too strong of a word, but there was a facility
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that Fallon set up where people had COVID
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that were sending in employees
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like her in with PPE to treat these folks.
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So in assessing of this offer of exemption,
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why isn't it that we could just affirm
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on the basis that you just didn't sustain your burden
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because there's lots of evidence here
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that what she was proposing with stuff
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that Fallon already required folks to do,
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and she was just echoing and offering
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to continue to do that to save her religious belief?
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The review examiner expressly found
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that Fallon's expectation that its employees receive
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a vaccination was reasonable.
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And the DUA has made the point, it's brief,
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that's an expectation, not a policy.
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But the DUA referred to, in the same breath,
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before the district court, when it acknowledged that-
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Is that a factual finding or is that a legal conclusion?
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It's a factual finding, Your Honor.
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And we have cases reviewing findings
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of reasonableness for substantial evidence.
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And there are other accommodate that,
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so you're correct that prior
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to the Mass Health Bulletin 69 coming out,
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requiring agencies like Fallon
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to have its employees vaccinated against COVID-19,
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Fallon was allowing its employees
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to work directly with its vulnerable patient population
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in protective equipment.
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After that bulletin came out, that changed,
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that changed the way Fallon had to operate it.
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After the bulletin, Fallon also required its employees
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not only to receive vaccinations,
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but to continue to wear masks and other protective equipment
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when dealing with patients.
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And another point that's important, Your Honor,
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is if there's evidence in the record testimony
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from Fallon that once the bulletin came out,
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many of Fallon's third parties,
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the entities that host the adult day program
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where Ms. Jefferson worked
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and other group homes required anyone coming
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onto their premises to be vaccinated against COVID-19.
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I get all that and I understand,
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you're complying with government regulation.
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But it's the government regulation on UI
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that's really, what you do with your employees
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is different from whether they get unemployment insurance.
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'Cause unemployment insurance is designed to, you know,
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be provided for people who are discharged
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for lots of different reasons,
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as long as they're not engaging in deliberate misconduct
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or knowing violations of policy.
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And I guess interpretation,
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you're asking us to adopt for you to win, I think,
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is that an employee exercising
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their sincerely held religious beliefs
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00:13:48.300 --> 00:13:52.230
that they can't do something are knowingly violating
270
00:13:52.230 --> 00:13:54.720
a policy and therefore not entitled
271
00:13:54.720 --> 00:13:55.830
to unemployment insurance,
272
00:13:55.830 --> 00:13:57.480
which is different from getting terminated
273
00:13:57.480 --> 00:13:58.743
from a job, right?
274
00:14:01.080 --> 00:14:04.823
And also, the state is now doing something
275
00:14:06.840 --> 00:14:08.613
besides what Fallon's doing.
276
00:14:09.450 --> 00:14:13.173
We're preventing these religious observers
277
00:14:14.520 --> 00:14:17.979
from collecting unemployment insurance.
278
00:14:17.979 --> 00:14:20.613
That's asking for trouble, isn't it?
279
00:14:22.740 --> 00:14:25.110
So two brief points.
280
00:14:25.110 --> 00:14:27.960
The interpretation that Fallon advanced here
281
00:14:27.960 --> 00:14:29.310
and has advanced throughout the proceeding
282
00:14:29.310 --> 00:14:31.170
is exactly the interpretation that
283
00:14:31.170 --> 00:14:34.380
the DUA told its adjudicators to apply.
284
00:14:34.380 --> 00:14:35.820
And I know the DUA will say,
285
00:14:35.820 --> 00:14:38.400
well, that memo is just issued to adjudicators.
286
00:14:38.400 --> 00:14:41.167
It's not something that our review examiners have to follow.
287
00:14:41.167 --> 00:14:42.390
[Justice Wendlandt] But you're sidestepping
288
00:14:42.390 --> 00:14:43.800
justice Kafker's question,
289
00:14:43.800 --> 00:14:48.163
which is really fundamentally about the ability,
290
00:14:51.180 --> 00:14:53.520
the differential treatment
291
00:14:53.520 --> 00:14:58.230
between somebody who receives unemployment benefits
292
00:14:58.230 --> 00:15:00.930
and somebody who doesn't.
293
00:15:00.930 --> 00:15:02.910
And the difference
294
00:15:02.910 --> 00:15:07.473
is because this particular religious belief,
295
00:15:08.323 --> 00:15:11.550
and to me that squarely presents
296
00:15:11.550 --> 00:15:14.250
a First Amendment violation,
297
00:15:14.250 --> 00:15:16.500
and you say that issue's waived.
298
00:15:16.500 --> 00:15:18.570
I'll go and see if the other cases say
299
00:15:18.570 --> 00:15:21.450
that you can waive an argument.
300
00:15:21.450 --> 00:15:26.450
When you win, a huge problem I think for your position.
301
00:15:26.910 --> 00:15:30.940
Even if the statute literally complies
302
00:15:32.040 --> 00:15:33.990
with what Fallon has done,
303
00:15:33.990 --> 00:15:36.450
and your interpretation is literally correct,
304
00:15:36.450 --> 00:15:39.990
why would we adopt it when it creates
305
00:15:39.990 --> 00:15:41.340
this differential treatment
306
00:15:41.340 --> 00:15:45.390
between those who have firmly held religious beliefs
307
00:15:45.390 --> 00:15:47.130
and those who don't?
308
00:15:47.130 --> 00:15:48.030
Your Honor, on that point,
309
00:15:48.030 --> 00:15:50.580
it gets back to the second step of strict scrutiny because-
310
00:15:50.580 --> 00:15:53.700
Right, well, so articulate for me the best case scenario
311
00:15:53.700 --> 00:15:57.090
for the state denying somebody unemployment benefits
312
00:15:57.090 --> 00:16:00.540
on the basis of the religious beliefs?
313
00:16:00.540 --> 00:16:02.955
Well, it could be a number of reasons.
314
00:16:02.955 --> 00:16:05.302
It could be the impact these claims-
315
00:16:05.302 --> 00:16:06.960
[Justice Wendlandt] So money?
316
00:16:06.960 --> 00:16:09.120
Financial could be part of it, resources-
317
00:16:09.120 --> 00:16:11.880
In any strict scrutiny analysis,
318
00:16:11.880 --> 00:16:14.850
are you aware of any where the money
319
00:16:14.850 --> 00:16:17.910
is a compelling enough state interest
320
00:16:17.910 --> 00:16:21.330
to preclude a First Amendment violation?
321
00:16:21.330 --> 00:16:22.163
No, your Honor.
322
00:16:22.163 --> 00:16:22.996
But it would be more than the money,
323
00:16:22.996 --> 00:16:24.960
it would be the burden on the department
324
00:16:24.960 --> 00:16:26.490
in processing these claims.
325
00:16:26.490 --> 00:16:31.490
The delay other claimants might face in a claimant
326
00:16:31.800 --> 00:16:33.390
for non-religious reasons,
327
00:16:33.390 --> 00:16:35.610
delaying their claim and the receipt of benefits
328
00:16:35.610 --> 00:16:38.700
because of processing, potentially frivolous claims.
329
00:16:38.700 --> 00:16:40.110
Another factor would be,
330
00:16:40.110 --> 00:16:42.120
how many frivolous religious objections
331
00:16:42.120 --> 00:16:44.280
did the DUA receive?
332
00:16:44.280 --> 00:16:47.400
How many did they find or not well found
333
00:16:47.400 --> 00:16:48.360
or sincerely held?
334
00:16:48.360 --> 00:16:49.193
There could be a num-
335
00:16:49.193 --> 00:16:50.237
Sincerely held religious belief,
336
00:16:50.237 --> 00:16:52.320
'cause you don't challenge that, right?
337
00:16:52.320 --> 00:16:53.760
No, no. But-
Okay.
338
00:16:53.760 --> 00:16:55.658
In denying benefits to people who hold
339
00:16:55.658 --> 00:16:56.491
sincerely-
You would be able
340
00:16:56.491 --> 00:16:58.230
to deny benefits to somebody who has
341
00:16:58.230 --> 00:16:59.820
a firmly held religious belief
342
00:16:59.820 --> 00:17:02.880
because there may be some people who willing
343
00:17:02.880 --> 00:17:04.410
to commit fraud?
344
00:17:04.410 --> 00:17:05.670
Not necessarily fraud, your Honor,
345
00:17:05.670 --> 00:17:07.200
but that could be a factor,
346
00:17:07.200 --> 00:17:08.850
just a sheer number of these claims,
347
00:17:08.850 --> 00:17:13.770
which is why the DUA denied these claims
348
00:17:13.770 --> 00:17:15.900
for religious reasons.
349
00:17:15.900 --> 00:17:17.910
Was the district court sort of getting
350
00:17:17.910 --> 00:17:19.920
at the First Amendment issue,
351
00:17:19.920 --> 00:17:22.750
even if Free Exercise Clause was never mentioned
352
00:17:23.610 --> 00:17:26.433
by saying, "This is all unreasonable.
353
00:17:27.270 --> 00:17:28.830
Nobody's getting a religious-"
354
00:17:28.830 --> 00:17:31.320
I didn't review that opinion that way, Your Honor,
355
00:17:31.320 --> 00:17:32.850
there are lots of unemployment cases
356
00:17:32.850 --> 00:17:34.380
that have nothing to do with the First Amendment
357
00:17:34.380 --> 00:17:35.880
that turn on reasonableness.
358
00:17:35.880 --> 00:17:37.950
There's City of Boston where the appeals court
359
00:17:37.950 --> 00:17:38.783
address reasonableness-
360
00:17:38.783 --> 00:17:41.220
Getting a religious exemption here, not those other cases.
361
00:17:41.220 --> 00:17:44.820
No one's getting a religious exemption.
362
00:17:44.820 --> 00:17:46.410
I would take the position reasonableness
363
00:17:46.410 --> 00:17:48.213
is different from,
364
00:17:50.070 --> 00:17:52.290
this is a First Amendment or Article 46 issue
365
00:17:52.290 --> 00:17:54.180
that can't withstand strict scrutiny.
366
00:17:54.180 --> 00:17:55.500
None of that analysis was ever done.
367
00:17:55.500 --> 00:17:57.770
None of the parties ever invited that analysis.
368
00:17:57.770 --> 00:17:59.430
It was incumbent on Ms. Jefferson
369
00:17:59.430 --> 00:18:02.670
or the DUA to raise that issue as the party
370
00:18:02.670 --> 00:18:04.800
that would face potential First Amendment issues,
371
00:18:04.800 --> 00:18:06.393
and they never did so.
372
00:18:07.350 --> 00:18:08.850
And I see that my time is up.
373
00:18:08.850 --> 00:18:11.430
So unless there are other questions from Your Honors,
374
00:18:11.430 --> 00:18:13.243
I'll just rely on my brief for the remaining issues.
375
00:18:13.243 --> 00:18:15.173
Thank you.
Thank you.
376
00:18:17.070 --> 00:18:19.830
Okay, Attorney Tretyakov.
377
00:18:19.830 --> 00:18:20.940
Good morning,
378
00:18:20.940 --> 00:18:23.130
chief Justice and may I please the court.
379
00:18:23.130 --> 00:18:24.450
Office assistant attorney general
380
00:18:24.450 --> 00:18:25.920
on behalf of acting director
381
00:18:25.920 --> 00:18:29.040
of the Department of Unemployment Assistance.
382
00:18:29.040 --> 00:18:31.740
Ms. Jefferson is entitled to unemployment benefits
383
00:18:31.740 --> 00:18:32.610
in this case.
384
00:18:32.610 --> 00:18:35.940
While her refusal to get a COVID vaccine
385
00:18:35.940 --> 00:18:38.140
may well have constituted a good cause to
386
00:18:39.330 --> 00:18:42.720
that is not an issue that this case presents.
387
00:18:42.720 --> 00:18:44.520
Instead, the issue before this court
388
00:18:44.520 --> 00:18:47.130
is whether or not her employer, Fallon,
389
00:18:47.130 --> 00:18:50.160
met its burden of proof to establish either
390
00:18:50.160 --> 00:18:54.180
a deliberate misconduct in willful disregard
391
00:18:54.180 --> 00:18:55.800
of her employer's interests
392
00:18:55.800 --> 00:18:58.860
or in knowing violation of a reasonable policy.
393
00:18:58.860 --> 00:19:02.700
And the facts, and the evidence introduced
394
00:19:02.700 --> 00:19:05.283
in this case established that felon failed-
395
00:19:06.330 --> 00:19:09.600
Is the First Amendment issue waived?
396
00:19:09.600 --> 00:19:10.433
Your Honor,
397
00:19:10.433 --> 00:19:12.510
I would say that the First Amendment issue here
398
00:19:12.510 --> 00:19:15.330
is not dispositive because the court can affirm
399
00:19:15.330 --> 00:19:17.550
the decision of the department based-
400
00:19:17.550 --> 00:19:19.170
Oh, yes, I understand your position.
401
00:19:19.170 --> 00:19:20.520
Is it waived?
402
00:19:20.520 --> 00:19:22.440
I would not concede to that, Your Honor.
403
00:19:22.440 --> 00:19:25.653
Where was it raised, Amici?
404
00:19:26.850 --> 00:19:28.110
It was not raised below.
405
00:19:28.110 --> 00:19:30.443
Okay, isn't that the definition of waiver?
406
00:19:30.443 --> 00:19:35.400
Your Honor, the best way I can answer
407
00:19:35.400 --> 00:19:37.560
that question is there are certain constitutional,
408
00:19:37.560 --> 00:19:40.413
sort of structural claims that may or may not be waived.
409
00:19:44.940 --> 00:19:46.080
But again, your Honor, in this-
410
00:19:46.080 --> 00:19:47.640
Your opposing counsel suggested that there
411
00:19:47.640 --> 00:19:50.520
are cases where somebody can waive
412
00:19:50.520 --> 00:19:51.970
their First Amendment rights.
413
00:19:54.240 --> 00:19:58.050
Your Honor, I will say that in this case,
414
00:19:59.940 --> 00:20:02.417
I will be happy to provide the 16 letter to this court
415
00:20:02.417 --> 00:20:04.080
if the court requires
416
00:20:04.080 --> 00:20:06.107
and some sort of briefing on this matter, but-
417
00:20:06.107 --> 00:20:08.370
No, so let's just stick with your actual argument.
418
00:20:08.370 --> 00:20:11.523
So why under the second prong of that 25-A,
419
00:20:13.830 --> 00:20:16.950
did Fallon not meet their burden?
420
00:20:16.950 --> 00:20:20.910
Reasonableness of the policy under still case requires
421
00:20:20.910 --> 00:20:22.320
the inquiry in two respects.
422
00:20:22.320 --> 00:20:24.900
One, policy as written and the other one
423
00:20:24.900 --> 00:20:27.210
is policy as applied.
424
00:20:27.210 --> 00:20:29.580
If the court looks at the policy as written
425
00:20:29.580 --> 00:20:30.520
and that's page
426
00:20:31.800 --> 00:20:34.800
27 of the record see that when Fallon
427
00:20:34.800 --> 00:20:38.490
was describing the review process for religious
428
00:20:38.490 --> 00:20:43.470
or medical exemption requests on two crucial juncture,
429
00:20:43.470 --> 00:20:45.600
one, the review of the request itself,
430
00:20:45.600 --> 00:20:49.765
and the issuance of the request itself, the
431
00:20:49.765 --> 00:20:51.930
It only-
but isn't,
432
00:20:51.930 --> 00:20:54.270
I mean they're complying with the law.
433
00:20:54.270 --> 00:20:58.949
I mean, I look at the UI issue separately from the policy.
434
00:20:58.949 --> 00:21:01.590
But how can we say their policy
435
00:21:01.590 --> 00:21:04.680
is not reasonable when it's dictated by the state?
436
00:21:04.680 --> 00:21:06.367
The state is saying,
437
00:21:06.367 --> 00:21:09.120
"If you're in this kind of business,
438
00:21:09.120 --> 00:21:12.270
and you're providing direct care to patients,
439
00:21:12.270 --> 00:21:14.037
vaccinate your employees."
440
00:21:15.983 --> 00:21:19.890
And they're saying, "She's a direct care worker,
441
00:21:19.890 --> 00:21:22.320
you're telling us to vaccinate
442
00:21:22.320 --> 00:21:25.530
and she works in homes with the elderly
443
00:21:25.530 --> 00:21:27.780
where these people are vulnerable and dying."
444
00:21:29.040 --> 00:21:33.213
I can't imagine their policy isn't reasonable.
445
00:21:35.010 --> 00:21:36.330
And I can't imagine
446
00:21:36.330 --> 00:21:39.210
that she has deliberately done anything wrong.
447
00:21:39.210 --> 00:21:43.410
But the issue is whether this is a knowing violation,
448
00:21:43.410 --> 00:21:45.240
and that gets really complicated
449
00:21:45.240 --> 00:21:48.903
because she does understand the policy.
450
00:21:51.990 --> 00:21:54.000
That's why I just think we inevitably get
451
00:21:54.000 --> 00:21:55.320
to the First Amendment.
452
00:21:55.320 --> 00:22:00.053
Because she's knowingly not complying with their policy,
453
00:22:03.450 --> 00:22:06.303
and their policy is being dictated by the state.
454
00:22:07.860 --> 00:22:09.450
Your Honor, I would-
455
00:22:09.450 --> 00:22:12.480
I don't know how you win unless it's
456
00:22:12.480 --> 00:22:14.850
the first free exercise clause
457
00:22:14.850 --> 00:22:16.500
that provides the win for you.
458
00:22:16.500 --> 00:22:18.270
And that may very well do it,
459
00:22:18.270 --> 00:22:21.330
but I just don't know how you do it without it.
460
00:22:21.330 --> 00:22:23.060
Certainly, Your Honor.
461
00:22:23.060 --> 00:22:26.100
Going back to what previously,
462
00:22:26.100 --> 00:22:29.100
the policy itself creates a disparate treatment
463
00:22:29.100 --> 00:22:31.847
between religious and medical exemption, so-
464
00:22:31.847 --> 00:22:34.590
I have to add to that.
465
00:22:34.590 --> 00:22:36.000
There's two things.
466
00:22:36.000 --> 00:22:37.530
So when you're talking
467
00:22:37.530 --> 00:22:41.010
about the reasonableness aperture
468
00:22:41.010 --> 00:22:42.911
where just, Kafker were on this,
469
00:22:42.911 --> 00:22:45.540
how you gotta get to that First Amendment issue.
470
00:22:45.540 --> 00:22:48.660
Because with the reasonable issue,
471
00:22:48.660 --> 00:22:51.510
you're making an argument that it's unreasonable
472
00:22:51.510 --> 00:22:54.510
because there's not the same robust review process
473
00:22:54.510 --> 00:22:56.880
that's specifically identified
474
00:22:56.880 --> 00:22:59.973
in the policy itself like they have for the medic.
475
00:23:01.140 --> 00:23:03.180
But the evidence before,
476
00:23:03.180 --> 00:23:08.180
the hearing officer was she did get a robust review process.
477
00:23:09.300 --> 00:23:10.957
There was testimony about that
478
00:23:10.957 --> 00:23:15.957
that the request was made, it was considered by HR.
479
00:23:17.200 --> 00:23:19.050
They met with her.
480
00:23:19.050 --> 00:23:23.250
They got the letter from her advisor.
481
00:23:23.250 --> 00:23:26.190
So the fact that it's not explicitly laid out
482
00:23:26.190 --> 00:23:28.680
in the policy doesn't comport
483
00:23:28.680 --> 00:23:29.820
with what actually happened.
484
00:23:29.820 --> 00:23:30.930
So that's one.
485
00:23:30.930 --> 00:23:33.450
The second is you have to also deal with the fact
486
00:23:33.450 --> 00:23:35.550
that the hearing officer makes
487
00:23:35.550 --> 00:23:39.630
a specific finding that their policy was reasonable.
488
00:23:39.630 --> 00:23:43.729
So how do you get out from underneath that,
489
00:23:43.729 --> 00:23:48.060
in terms of arguing that it was unreasonable
490
00:23:48.060 --> 00:23:50.190
if your two bases are gonna be,
491
00:23:50.190 --> 00:23:52.320
you don't have the same review robust policy
492
00:23:52.320 --> 00:23:54.540
that's explicitly articulated
493
00:23:54.540 --> 00:23:57.393
like they do for the medical, but you got it?
494
00:23:59.070 --> 00:24:03.150
And secondly, the review examiner says-
495
00:24:03.150 --> 00:24:06.750
Thank you, Your Honor, to start with your second point,
496
00:24:06.750 --> 00:24:08.010
the review examiner said
497
00:24:08.010 --> 00:24:10.950
that the expectation that the employee
498
00:24:10.950 --> 00:24:13.620
would be vaccinated was reasonable.
499
00:24:13.620 --> 00:24:15.510
How that expectation translated
500
00:24:15.510 --> 00:24:19.320
into the actual policy and into the implementation,
501
00:24:19.320 --> 00:24:21.210
I would argue that's a separate issue.
502
00:24:21.210 --> 00:24:23.520
And on the implementation of the policy, Your Honor,
503
00:24:23.520 --> 00:24:26.070
we have again, undisputed evidence
504
00:24:26.070 --> 00:24:27.630
that the religious exemption
505
00:24:27.630 --> 00:24:31.860
was denied to every single employee of Fallon.
506
00:24:31.860 --> 00:24:35.250
Everybody who requested it was denied.
507
00:24:35.250 --> 00:24:37.680
At Ms. Jefferson's site were denied it.
508
00:24:37.680 --> 00:24:40.350
People who worked on different sites were denied it.
509
00:24:40.350 --> 00:24:42.900
And Fallon failed to provide any evidence
510
00:24:42.900 --> 00:24:45.780
to the reviewing examiner establishing
511
00:24:45.780 --> 00:24:47.849
what those employees functions were.
512
00:24:47.849 --> 00:24:48.762
Were they-
513
00:24:48.762 --> 00:24:51.990
[Justice Wendlandt] This as applied challenge
514
00:24:51.990 --> 00:24:53.520
that you're marshaling now,
515
00:24:53.520 --> 00:24:56.010
and that the district court found persuasive,
516
00:24:56.010 --> 00:24:59.520
was that the basis for the agency decision?
517
00:24:59.520 --> 00:25:00.630
Your Honor? No.
518
00:25:00.630 --> 00:25:05.630
No, and so given that we usually don't make decisions
519
00:25:05.760 --> 00:25:08.673
for the agency, even if we can find one out there,
520
00:25:10.350 --> 00:25:12.840
wasn't that improper then for the district court,
521
00:25:12.840 --> 00:25:17.840
and for you even to suggest that we supply an argument?
522
00:25:18.750 --> 00:25:23.130
Your Honor, in the unique context of chapter 151-A,
523
00:25:23.130 --> 00:25:27.150
this court in the past refused to remand
524
00:25:27.150 --> 00:25:28.920
the cases to the district court
525
00:25:28.920 --> 00:25:32.220
if the substantial findings of fact,
526
00:25:32.220 --> 00:25:34.260
the subsidiary findings of fact, excuse me,
527
00:25:34.260 --> 00:25:35.310
were in the record.
528
00:25:35.310 --> 00:25:37.350
And they allowed the court to analyze
529
00:25:37.350 --> 00:25:39.960
how the principles of law should be applied
530
00:25:39.960 --> 00:25:40.950
to those findings.
531
00:25:40.950 --> 00:25:45.810
On those cases, I'm referring specifically,
532
00:25:45.810 --> 00:25:48.075
I believe to the case of Jones,
533
00:25:48.075 --> 00:25:51.510
the court said that remanding
534
00:25:51.510 --> 00:25:54.180
would serve no meaningful purpose
535
00:25:54.180 --> 00:25:58.830
where all the findings of fact are made.
536
00:25:58.830 --> 00:26:02.760
And the steel case also speaks about that as well.
537
00:26:02.760 --> 00:26:04.170
In this case, again,
538
00:26:04.170 --> 00:26:06.720
the court has an uncontested finding
539
00:26:06.720 --> 00:26:09.970
that no one from Fallon received an
540
00:26:11.280 --> 00:26:12.690
no evidence in the record-
541
00:26:12.690 --> 00:26:14.070
But by the way,
542
00:26:14.070 --> 00:26:15.450
is that mean no one,
543
00:26:15.450 --> 00:26:18.180
meaning corporate wide or no one who's
544
00:26:18.180 --> 00:26:20.940
a direct care worker got?
545
00:26:20.940 --> 00:26:23.340
Again what this record shows.
546
00:26:23.340 --> 00:26:24.173
When we look at
547
00:26:25.650 --> 00:26:29.370
this record, is it gonna show that
548
00:26:29.370 --> 00:26:32.460
nobody at Fallon got a religious exemption?
549
00:26:32.460 --> 00:26:33.810
Thank you, your Honor.
550
00:26:33.810 --> 00:26:36.180
The finding of fact that I am referring to
551
00:26:36.180 --> 00:26:40.897
is number paragraph 13 on page 19 of the record appendix.
552
00:26:40.897 --> 00:26:43.380
"No employees who worked for the employer
553
00:26:43.380 --> 00:26:45.120
were granted a religious exemption
554
00:26:45.120 --> 00:26:48.360
to the pandemic COVID-19 workforce response policy."
555
00:26:48.360 --> 00:26:50.070
We do not know who those employers were.
556
00:26:50.070 --> 00:26:52.020
Yeah, but we actually, we do,
557
00:26:52.020 --> 00:26:54.240
because again, if you go into the record,
558
00:26:54.240 --> 00:26:55.345
you just made a reference
559
00:26:55.345 --> 00:26:58.230
that there's no reason that was given.
560
00:26:58.230 --> 00:27:00.840
And that's not entirely accurate
561
00:27:00.840 --> 00:27:03.240
because the representatives
562
00:27:03.240 --> 00:27:07.090
of Fallon testified that the reason why
563
00:27:08.100 --> 00:27:13.100
what she proposed for an accommodation didn't work
564
00:27:15.510 --> 00:27:18.660
for people that were involved with direct care.
565
00:27:18.660 --> 00:27:21.150
And I think there was actually a specific mention
566
00:27:21.150 --> 00:27:24.390
that say it was somebody that worked for Fallon
567
00:27:24.390 --> 00:27:28.830
in HR or some corporate other designation that
568
00:27:28.830 --> 00:27:30.690
that person might be able to,
569
00:27:30.690 --> 00:27:35.100
but in the specific thing that she did with direct care,
570
00:27:35.100 --> 00:27:37.380
that that was the determiner.
571
00:27:37.380 --> 00:27:39.699
So the fact that it wouldn't be a surprise
572
00:27:39.699 --> 00:27:42.480
that you wouldn't find people
573
00:27:42.480 --> 00:27:44.940
that were doing direct care that wouldn't get it.
574
00:27:44.940 --> 00:27:46.260
Your Honor is probably referring
575
00:27:46.260 --> 00:27:48.630
to the testimony of the HR business partner
576
00:27:48.630 --> 00:27:51.270
on page 65 of the record appendix where she says
577
00:27:51.270 --> 00:27:53.530
that everybody who was working on site with
578
00:27:55.530 --> 00:27:56.850
direct care of patients.
579
00:27:56.850 --> 00:27:59.130
And therefore, their exemptions were denied.
580
00:27:59.130 --> 00:28:01.530
However, if the course looks a little bit further,
581
00:28:01.530 --> 00:28:05.190
and I'm talking about pages 66 and 67
582
00:28:05.190 --> 00:28:06.540
of the record appendix.
583
00:28:06.540 --> 00:28:11.540
There, that same HR business partner also says
584
00:28:11.670 --> 00:28:13.680
is from different, from other sites,
585
00:28:13.680 --> 00:28:16.410
different from where Ms. Jefferson was working on.
586
00:28:16.410 --> 00:28:19.170
They have applied for the religious exemption.
587
00:28:19.170 --> 00:28:20.683
There was a process site-
588
00:28:20.683 --> 00:28:22.080
" Sites."
589
00:28:22.080 --> 00:28:24.090
Again, I haven't read the record the way you have,
590
00:28:24.090 --> 00:28:28.200
but sites suggests people who go treat
591
00:28:28.200 --> 00:28:31.330
the elderly and those who need assisted care,
592
00:28:31.330 --> 00:28:35.700
that seems to support Justice George's talking
593
00:28:35.700 --> 00:28:37.260
about direct care workers.
594
00:28:37.260 --> 00:28:38.280
They're not talking about people
595
00:28:38.280 --> 00:28:41.100
at corporate headquarters in the C-suite.
596
00:28:41.100 --> 00:28:44.550
They're talking about people who are going to sites, right?
597
00:28:44.550 --> 00:28:46.800
Your Honor, that is an excellent question
598
00:28:46.800 --> 00:28:50.250
which Fallon had every opportunity
599
00:28:50.250 --> 00:28:53.123
to present the court with the evidence
600
00:28:53.123 --> 00:28:56.100
or with the evidence in which they failed to do.
601
00:28:56.100 --> 00:28:59.010
They could have said 17,
602
00:28:59.010 --> 00:29:02.250
let's say, 17 people requested a religious exemption.
603
00:29:02.250 --> 00:29:07.250
All 17 of them were working directly with the patients
604
00:29:07.830 --> 00:29:09.894
and therefore we were not-
605
00:29:09.894 --> 00:29:12.030
[Justice Wendlandt] What was the policy?
606
00:29:12.030 --> 00:29:14.460
Did the policy apply to anybody who didn't
607
00:29:14.460 --> 00:29:16.323
have direct contact with patients?
608
00:29:21.570 --> 00:29:23.490
The vaccine requirement is considered
609
00:29:23.490 --> 00:29:25.890
a consideration of employment for staff patients
610
00:29:25.890 --> 00:29:28.080
that provide direct contact or having physical-
611
00:29:28.080 --> 00:29:30.810
Oh, it's not surprising that the only people applying
612
00:29:30.810 --> 00:29:34.923
for the exemption were the people who the policy applied to.
613
00:29:35.910 --> 00:29:39.930
Your Honor, I would say the application of the policy,
614
00:29:39.930 --> 00:29:42.180
that the interpretation of the statute regarding
615
00:29:42.180 --> 00:29:44.520
the knowing violation, in this case,
616
00:29:44.520 --> 00:29:48.270
that Fallon is urging up on the court to accept,
617
00:29:48.270 --> 00:29:49.710
would still be unreasonable.
618
00:29:49.710 --> 00:29:54.660
Imagine that there is a person under Fallon policy applying
619
00:29:54.660 --> 00:29:55.650
for a medical exam,
620
00:29:55.650 --> 00:29:59.040
contested undisputed severe logic reaction
621
00:29:59.040 --> 00:30:01.020
to one of the components of the vaccine.
622
00:30:01.020 --> 00:30:01.897
And Fallon says,
623
00:30:01.897 --> 00:30:05.370
"I cannot accommodate you because of the nature of your job,
624
00:30:05.370 --> 00:30:09.330
and we cannot give you any other job
625
00:30:09.330 --> 00:30:10.980
within our organization."
626
00:30:10.980 --> 00:30:12.810
And that person gets discharged
627
00:30:12.810 --> 00:30:16.200
because of that, under Fallon,
628
00:30:16.200 --> 00:30:18.690
according to the logic that the Fallon urges on this court,
629
00:30:18.690 --> 00:30:21.600
that person will not be eligible for unemployment benefits.
630
00:30:21.600 --> 00:30:22.433
Because-
631
00:30:22.433 --> 00:30:23.730
That goes back to Justice Kafka's point
632
00:30:23.730 --> 00:30:25.410
that there's this divide.
633
00:30:25.410 --> 00:30:28.200
You can be discharged and separated
634
00:30:28.200 --> 00:30:30.990
but that's an entirely different question
635
00:30:30.990 --> 00:30:35.990
about whether or not you should be entitled to benefits.
636
00:30:36.090 --> 00:30:37.260
That is correct, Your Honor.
637
00:30:37.260 --> 00:30:40.740
And I think this point that this result
638
00:30:40.740 --> 00:30:43.890
would be completely incongruent
639
00:30:43.890 --> 00:30:47.460
with the overall legislative goal of Chapter 151-A,
640
00:30:47.460 --> 00:30:49.260
in which this court repeatedly said
641
00:30:49.260 --> 00:30:51.330
that this has to be interpreted in favor
642
00:30:51.330 --> 00:30:54.420
of the employees because the goal is to provide them
643
00:30:54.420 --> 00:30:55.530
with financial assistance
644
00:30:55.530 --> 00:30:57.510
in some of their most difficult times.
645
00:30:57.510 --> 00:30:58.740
And in this case, Your Honor,
646
00:30:58.740 --> 00:31:00.990
given the fact that there are some indicia
647
00:31:00.990 --> 00:31:05.130
of unreasonableness in the way that the policy is written
648
00:31:05.130 --> 00:31:06.510
and-
Can I ask,
649
00:31:06.510 --> 00:31:09.977
was any guidance given by the UI,
650
00:31:11.156 --> 00:31:13.456
I don't know what the agency's called anymore,
651
00:31:15.030 --> 00:31:20.030
or the AGs office on this particular problem,
652
00:31:21.600 --> 00:31:25.470
anything from that the AG was telling people,
653
00:31:25.470 --> 00:31:27.450
people who were, I mean, 'cause the state
654
00:31:27.450 --> 00:31:29.760
is telling everyone to vaccinate.
655
00:31:29.760 --> 00:31:32.700
Everyone in direct care to vaccinate.
656
00:31:32.700 --> 00:31:34.800
They know people are gonna be laid off of.
657
00:31:35.638 --> 00:31:37.770
Was guidance issued by the Attorney General's office
658
00:31:37.770 --> 00:31:42.770
or the Department of Unemployment Insurance
659
00:31:43.050 --> 00:31:43.983
on how to deal
I'm not aware
660
00:31:43.983 --> 00:31:45.630
with this conflict?
661
00:31:45.630 --> 00:31:48.300
Issued by the attorney general's office, Your Honor,
662
00:31:48.300 --> 00:31:52.830
the memorandum that my brother keeps relying on,
663
00:31:52.830 --> 00:31:54.390
one, it's not part of the record,
664
00:31:54.390 --> 00:31:56.850
it was not presented before the reviewing examiner
665
00:31:56.850 --> 00:31:59.370
who wasn't bound by it in any way
666
00:31:59.370 --> 00:32:02.100
because it applies only to initial adjudicators.
667
00:32:02.100 --> 00:32:04.050
And certainly, the district court judge
668
00:32:04.050 --> 00:32:07.800
in this court are not bound by that memorandum as well.
669
00:32:07.800 --> 00:32:11.890
But I will say that that memorandum clearly envisions
670
00:32:15.480 --> 00:32:18.660
the new process and the existence of a real,
671
00:32:18.660 --> 00:32:21.360
and not just illusory religious exemption.
672
00:32:21.360 --> 00:32:24.540
Because in the part,
673
00:32:24.540 --> 00:32:28.800
in the last part of the memorandum,
674
00:32:28.800 --> 00:32:32.130
it says, where an employer interview
675
00:32:32.130 --> 00:32:33.870
or some other reasonable process
676
00:32:33.870 --> 00:32:36.840
has found that an employee's profess religious belief
677
00:32:36.840 --> 00:32:38.700
either is not sincerely held
678
00:32:38.700 --> 00:32:42.150
or doesn't prevent the employee from getting vaccinated,
679
00:32:42.150 --> 00:32:43.680
an adjudicator should not attempt
680
00:32:43.680 --> 00:32:45.600
to overturn that decision.
681
00:32:45.600 --> 00:32:46.890
Those are easy questions.
682
00:32:46.890 --> 00:32:49.860
The hard question really held religious belief.
683
00:32:49.860 --> 00:32:54.090
She's essentially the same as the person who will die
684
00:32:54.090 --> 00:32:54.930
from the vaccine.
685
00:32:54.930 --> 00:32:57.420
You know, I can't do this.
686
00:32:57.420 --> 00:33:02.420
It's, you know, so with the AG, again,
687
00:33:03.120 --> 00:33:03.953
this is all weak.
688
00:33:03.953 --> 00:33:06.098
Department of Unemployment Assistance
689
00:33:06.098 --> 00:33:07.684
interoffice memorandum.
690
00:33:07.684 --> 00:33:10.034
That's the only thing that's out there on this.
691
00:33:10.890 --> 00:33:11.970
I believe so, Your Honor,
692
00:33:11.970 --> 00:33:13.863
I'm not aware of any guidance issued by the attorney.
693
00:33:13.863 --> 00:33:16.110
Now, so before your time runs out,
694
00:33:16.110 --> 00:33:18.390
one of the things I asked your opposing counsel,
695
00:33:18.390 --> 00:33:20.160
I wanna ask you the same thing.
696
00:33:20.160 --> 00:33:25.160
If the record, because I know that you're more confident
697
00:33:26.040 --> 00:33:29.470
on what the findings in what Judge LoConto
698
00:33:30.330 --> 00:33:32.580
did and said than I am.
699
00:33:32.580 --> 00:33:36.820
But if the record includes something more
700
00:33:39.240 --> 00:33:44.240
that we can look to, do you agree that we could affirm
701
00:33:45.270 --> 00:33:50.270
what was done here on reasons other than what appears
702
00:33:50.280 --> 00:33:52.920
in the decision of the hearing officer
703
00:33:52.920 --> 00:33:55.530
or in what Judge LoConto said?
704
00:33:55.530 --> 00:33:56.363
Yes, your Honor.
705
00:33:56.363 --> 00:33:58.710
Because the operative statute here
706
00:33:58.710 --> 00:34:00.180
that enables this lawsuits,
707
00:34:00.180 --> 00:34:03.780
it's section 42 of 151-A specifically refers
708
00:34:03.780 --> 00:34:06.210
to section 14 of Chapter 30-A,
709
00:34:06.210 --> 00:34:10.140
and that Administrative Procedure Act statute says
710
00:34:10.140 --> 00:34:11.670
that on judicial review,
711
00:34:11.670 --> 00:34:14.460
the review is based on the entire record.
712
00:34:14.460 --> 00:34:17.190
So as long as it is in the administrative record,
713
00:34:17.190 --> 00:34:19.320
which it is both the policy, the reasoning,
714
00:34:19.320 --> 00:34:21.750
and all the exhibits that were submitted,
715
00:34:21.750 --> 00:34:23.490
the court can't confirm on any grounds.
716
00:34:23.490 --> 00:34:24.570
Thank you.
717
00:34:24.570 --> 00:34:26.340
Unless the court has further questions,
718
00:34:26.340 --> 00:34:27.540
I will rest on my brief.