Case: 21-20311 Document: 00516355203 Page: 1 Date Filed: 06/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 13, 2022
No. 21-20311
Lyle W. Cayce
Clerk
Jennifer Bridges; Bob Nevens; Maria Trevino; Ricardo
Zelante; Latricia Blank; et al.,
Plaintiffs—Appellants,
versus
The Methodist Hospital, doing business as Houston
Methodist; Methodist Health Centers, doing business as
Houston Methodist The Woodlands Hospital,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC 4:21-CV-1774
Before Jolly, Elrod, and Haynes*, Circuit Judges.
Per Curiam:**
Houston Methodist (HM) hospitals imposed a mandatory COVID-19
vaccination policy on its employees. Plaintiffs, former employees of HM,
*
Judge Haynes concurs in the judgment only.
**
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-20311
allege that they were fired or were going to be fired for refusing to receive the
COVID-19 vaccine, as required by the policy. They sued HM for violations
of federal law and regulations and for wrongful discharge under Texas law.
The district court granted HM’s motion to dismiss under Rule 12(b)(6), and
plaintiffs appealed. Because plaintiffs do not demonstrate any error in the
district court’s judgment on the arguments made in that court but instead
make an entirely new argument on appeal, we AFFIRM the district court’s
dismissal of plaintiffs’ complaint.
On April 1, 2021, Defendant Houston Methodist1 announced a
mandatory vaccination policy for its employees. The policy was rolled out in
two phases, the first applying only to management employees and the second
applying to everyone else. Under the policy, HM required employees to
either be fully vaccinated (pursuant to either a one- or two-dose vaccine),
within a certain period of time, or else apply for exemptions based on medical
condition or sincerely held religious belief. Employees who failed to comply
with the policy by a certain date—namely, by being vaccinated or qualifying
for an exemption—were placed on a two-week, unpaid suspension. Failure
to comply with the policy by the end of the two-week suspension would result
in immediate dismissal.
Plaintiffs filed suit on May 28, 2021, in Texas state court. HM
removed the case to federal court and filed a Rule 12(b)(6) motion to dismiss.
In response, plaintiffs filed an amended complaint, the operative complaint
here. The complaint set forth three claims: (1) wrongful discharge under
1
Houston Methodist is a hospital system composed of, among other entities,
defendant-appellee The Methodist Hospital, doing business as Houston Methodist, and
defendant-appellee Methodist Health Centers, doing business as Houston Methodist The
Woodlands Hospital. For convenience, we refer to the defendant-appellees in this case as
Houston Methodist (HM).
2
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No. 21-20311
Sabine-Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985), for violating
public policy by forcing plaintiffs to engage in an illegal act; (2) wrongful
discharge for violating public policy by forcing plaintiffs to receive an
experimental vaccine; and (3) violations of federal law and regulations,
including 21 U.S.C. § 360bbb-3, 41 C.F.R. 46.101, 46.102, and 46.116, for
failure to advise plaintiffs of the risks and benefits of the vaccine and to
provide an option to accept or refuse the vaccine. HM filed another Rule
12(b)(6) motion to dismiss, which the district court granted. Plaintiffs appeal
that decision.2
This court reviews dismissals under Rule 12(b)(6) de novo. Cicalese v.
Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim for relief may be foreclosed “on the basis
of a dispositive issue of law.” Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Plaintiffs appeal only the district court’s dismissal of their second
claim. They argue that firing an employee for her refusal to receive an
experimental COVID-19 vaccine violates public policy and merits an
exception to Texas’s general rule of at-will employment.3 Pointing to the
Supreme Court of Texas’s decision in Sabine Pilot, 687 S.W.2d at 735,
2
HM removed this case to federal court on the basis of federal-question
jurisdiction, 28 U.S.C. § 1331, which was implicated by the plaintiffs’ claim that HM
violated federal law and regulations. See 28 U.S.C. § 1441. We have jurisdiction over this
final decision of the district court under 28 U.S.C. § 1291.
3
“The long standing rule in Texas is that employment for an indefinite term may
be terminated at will and without cause.” Winters v. Hous. Chron. Pub. Co., 795 S.W.2d
723, 723 (Tex. 1990); see also Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 659 (Tex. 2012).
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plaintiffs ask this court to hold that they have stated a claim for wrongful
discharge under Texas law.
In Sabine Pilot, the Supreme Court of Texas recognized an exception
to the general employment-at-will doctrine. Id. At issue was whether “an
allegation by an employee that he was discharged for refusing to perform an
illegal act states a cause of action” for wrongful discharge. Id. at 734. The
court held that “public policy, as expressed in the laws of this state and the
United States which carry criminal penalties, requires a very narrow
exception” to at-will employment. Id. at 735. This narrow exception “covers
only the discharge of an employee for the sole reason that the employee
refused to perform an illegal act.” Id.
Plaintiffs argue that the logic underlying Sabine Pilot’s exception for
refusals to perform an illegal act should also apply to refusals to receive the
(at that time) experimental COVID-19 vaccines.
However, we agree with the district court that plaintiffs’ alleged
violations of federal law are insufficient to show any violation of public policy
for purposes of an at-will-employment exception. Indeed, plaintiffs hardly
protest on appeal. Instead of reasserting their reliance on alleged violations
of federal law and regulations, plaintiffs have pivoted to alleged violations of
Texas law and executive orders, and now even equivocate on whether federal
law supports their claim.4 Federal law does not, and the district court did not
err in dismissing plaintiffs’ claim.
4
We need not reach plaintiffs’ new contentions that Texas law and executive
orders are the source of a public-policy exception. In light of the principles of federalism
that chaperone our interpretation of Texas law, hazarding a first guess, on appeal, on the
meaning of state law is ill-advised.
4
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We also decline plaintiffs’ invitation to certify this question to the
Supreme Court of Texas, as plaintiffs did not raise in district court an issue
worthy of certification. This court’s respect for federal–state comity makes
it “chary about certifying questions of law absent a compelling reason to do
so,” Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1247 (5th Cir. 1997),
and there is no compelling reason to do so here.
* * *
For these reasons, we AFFIRM.
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