Case 5:21-cv-00393 Document 5 Filed 07/16/21 Page 1 of 17 PageID #: 76

7IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

STEPHANIE MCCUTCHEON, )
)
Plaintiff, )
)
v. ) Civil Action No. 5:21-cv-00393
)
ENLIVANT ES, LLC, a foreign limited )
liability company, d/b/a SEASONS PLACE )
ASSISTED LIVING FACILITY, )

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Defendant Enlivant ES, LLC, incorrectly identified as Enlivant ES, LLC d/b/a Seasons

Place Assisted Living Facility (hereinafter “Enlivant”), files this Memorandum of Law in Support

of its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

I. Introduction

Plaintiff’s Complaint purports to set forth claims for retaliatory discharge in violation of

public policy, declaratory judgment, and injunctive relief related to her June 2021 separation

stemming from her refusal to comply with Enlivant’s COVID-19 vaccination policy. Plaintiff’s

claims should be dismissed, among other reasons, because:

 Enlivant’s vaccination policy is permissible under state and federal law;

 Plaintiff’s employment was at will, and Enlivant’s vaccination policy is consistent

with public policy - particularly in West Virginia, a state with some of the strongest
pro-vaccination laws in the country;

 Plaintiff lacks standing to sue for alleged violations of 21 U.S.C. § 360bbb-3, which
does not provide an independent cause of action, and the statute relied upon by
Plaintiff dictates the responsibilities of the Secretary of Health and Human Services
– not a private employer. Similarly, Plaintiff cannot sue under the Nuremberg Code
because Enlivant is a private employer, not a government.

Plaintiff’s Complaint should thus be dismissed with prejudice.

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II. Background

Enlivant provides assisted living and limited healthcare services to senior citizen residents

at its facilities across the country.1 Seasons Place is an Enlivant-branded senior assisted living

community in Lewisburg, West Virginia, where Plaintiff was employed by Enlivant AID II ES,

LLC. All facility employees are employees of Enlivant.

In response to the COVID-19 pandemic and the risks it posed to Enlivant’s staff and

residents, Enlivant developed a mandatory COVID-19 vaccination policy for its employees. [ECF

1-1, at p. 5]. On or about April 14, 2021, facility employees were advised that they were expected

to be vaccinated against COVID-19 no later than June 1, 2021. Id. at p. 4.

Plaintiff avers that she “performed her own research” and determined she did not wish to

be vaccinated against COVID-19. Id. She claims she advised Enlivant of her decision to remain

unvaccinated, and that Enlivant’s human resources department informed her that getting

vaccinated against COVID-19 was a mandatory condition of employment. Id. at pp. 4-5. Despite

this, Plaintiff did not get vaccinated. Id.

Plaintiff avers that she then received a letter from Enlivant’s human resources department

on or about May 25, 2021, stating that she was considered to have voluntarily resigned from her

employment due to her personal choice to remain unvaccinated contrary to the essential functions

of her job and Enlivant’s job requirements. Id. at p. 5. The letter also explained that Enlivant’s

vaccination requirement was necessary to protect the health and safety of its residents, employees,

1
Enlivant is a healthcare company, specializing in providing assisted living and clinical care services to senior-citizen
residents at its communities throughout the United States. See https://www.enlivant.com/. It is important that these
communities remain safe and healthy living environments while Enlivant provides residents with direct care services
including assisting with activities of daily living (e.g., dressing, bathing, toileting, and dining), medication
management, dining services, and housekeeping, among others. See https://www.enlivant.com/senior-housing-
options/assisted-living. Services require close, personal interaction between employees and the vulnerable senior
citizens whose home is the Community. Equally, Enlivant is dedicated to providing a safe and healthy work
environment for its valued employees.

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and visitors at the community she worked in. Id. Plaintiff denies that she voluntarily resigned,

and instead considers herself terminated. Id.

Plaintiff initiated this action in the Circuit Court of Greenbrier County, West Virginia on

June 3, 2021. [ECF 1-1]. On July 9, 2021, Enlivant removed this case to federal court. [ECF 1].

Plaintiff brings this lawsuit to challenge the validity and prevent the enforcement of Enlivant’s

lawful vaccination policy. In a Complaint startlingly similar to one filed weeks earlier in the

Southern District of Texas2, Plaintiff asserts that she was not given a choice as to whether she

wanted to participate in a “vaccine trial.” [ECF 1-1 at pp. 12-13]. Claiming a violation of the

Nuremberg Code, Plaintiff also likens the vaccination policy to the forced medical experiments

“performed on unwilling victims of Nazi Germany’s concentration camps.” Id. at pp. 13-14.

Plaintiff’s Complaint rests on three claims: retaliatory discharge in violation of public

policy, a request for declaratory relief, and a petition for preliminary injunction. All three of

Plaintiff’s claims are baseless and fail as a matter of law. Plaintiff’s Complaint should thus be

dismissed with prejudice in its entirety.

2
Much of the language in Plaintiff’s Complaint directly parrots a Texas complaint filed on May 28, 2021. Bridges v.
Houston Methodist Hosp., No, 4:21-cv-01774, ECF No. 1 (S.D. Tx). There, Houston Methodist Hospital announced
a policy requiring its employees to be vaccinated against COVID-19. Bridges v. Houston Methodist Hosp., No. 4:21-
cv-01774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021). The named plaintiff, along with 116 other employees,
sued to block both the policy itself and the terminations of employees who chose not to follow it. Id. The court
dismissed the complaint on June 12, 2021, finding that the plaintiffs’ claims failed because injection requirements
were consistent with public policy, and that Bridges had no private right of action against her employer under the
Federal Food, Drug, and Cosmetic Act. Id. The court specifically rejected the notion that the plaintiff was in any way
“forced” to be vaccinated, stating:

“Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion …
Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply
need to work somewhere else.”

Id. The court also denied the plaintiffs’ request for a temporary restraining order, finding that granting such injunctive
relief would disservice the public interest and jeopardize the health of others. Bridges, No. 4:21-cv-01774, ECF No.
10 (SD TX June 4, 2021).

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III. Questions Presented

1. Did Plaintiff fail to state a plausible claim for retaliatory discharge?

Answer: Yes.

2. Did Plaintiff fail to state a plausible claim for declaratory relief?

Answer: Yes.

3. Did Plaintiff fail to prosecute her petition for injunctive relief?

Answer: Yes.

IV. Standard of Review

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

should dismiss a putative claim “if it does not allege ‘enough facts to state a claim to relief that is

plausible on its face’.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In doing so, the Court should accept all

well-pled facts in the Complaint as true. See Nemet Chevrolet, Inc. v. Consumeraffairs.com, Inc.,

591 F.3d 250, 255 (4th Cir. 2009). Nonetheless, legal conclusions and bare assertions lacking a

factual basis are not considered as well-pled facts for purposes of a motion to dismiss. Id. (citing

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). The court also need not consider “unwarranted

inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc.,

562 F.3d 599, 615 n.26 (4th Cir. 2009). A complaint is plausible on its face if it allows the court

to draw a reasonable inference that the defendant is liable for the claims alleged. Nemet Chevrolet,

591 F.3d at 256 (quoting Iqbal, 192 S.Ct. at 1949). Although the allegations need not be detailed,

they must rise above the speculative level. Twombly, 550 U.S. at 555.

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V. Argument

A. Plaintiff Fails to State a Plausible Claim of Retaliatory Discharge or Right to

Declaratory Relief

Counts I and II of Plaintiff’s Complaint allege violations of public policy stemming from

Plaintiff’s separation for her refusal to comply with Enlivant’s vaccination policy, and seek a

declaration of rights as to an employer’s ability to create a mandatory vaccination policy. Enlivant,

a private employer, may establish a mandatory vaccination policy. It is also permitted to separate

at-will employees, like Plaintiff, for refusing to comply with employer policies. Accordingly,

these claims must be dismissed.

1. Private Employers may establish Mandatory Vaccination Policies.

There is no law (and Plaintiff cites no legal authority) that prohibits a private employer’s

ability to require vaccinations as a condition of employment. Indeed, existing case law and agency

guidance support the enforceability of such policies. See, e.g., Jacobson v. Commonwealth of

Mass., 197 U.S. 11 (1905) (rejecting claim that state’s compulsory vaccination law enacted in

response to smallpox epidemic violated plaintiff’s Fourteenth Amendment right to “care for his

own body and health in such way as to him seems best,” explaining that “liberty secured by the

Constitution . . . does not import an absolute right in each person to be at all times and in all

circumstances wholly freed from restraint[;]” rather, “a community has a right to protect itself

against an epidemic of disease which threatens the safety of its members”) (emphasis added);

Bridges, 2021 WL 2399994, at *1 (calling private employer’s COVID-19 injection requirement

consistent with public policy); citing U.S. Equal Emp. Opportunity Comm’n, Technical Assistance

Manual on what you should know about COVID-19 and the ADA, the Rehabilitation Act, and

other EEO Laws, updated May 28, 2021, at § K.5, available at https://www.eeoc.gov/wysk/what-

you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (hereinafter the

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“EEOC Guidance”) (stating employers may require employees be vaccinated against COVID-19

subject to reasonable accommodations for employees with disabilities or sincerely held religious

beliefs precluding vaccination). To be clear, Plaintiff’s Complaint does not allege that she

abstained from vaccination due to a religious objection or disability – she simply decided not to

get it. [ECF 1-1, at p. 4].

Notably, Plaintiff’s own counsel agrees that private business may require employees to be

vaccinated against COVID-19. See “Lawyer Says Employers Can Require COVID-19 Vaccine,”

stating:

Local civil rights lawyer John Bryan said the employer would be in their right [to require
the vaccine]. The federal government suggested employers request employees to get the
vaccine, instead of require; however, Bryan said businesses could require their employees
to get the shot if they wanted to.

“Yes they generally, looks like, can require vaccinations for employees, subject to possible
disabilities under the ADA, also subject to possible religious beliefs,” Bryan said.

WVNS-TV, February 15, 2021, available at https://www.wvnstv.com/news/lawyer-says-

employees-can-require-covid-19-vaccine/.

There is no law, governmental agency, or public policy that prevents Enlivant from

implementing a mandatory vaccination policy for the protection of its senior residents, its

employees, and the community. Indeed, Enlivant has the right to do so.

2. West Virginia Public Policy Favors Mandatory Vaccination Policies.

Plaintiff cannot state a claim for wrongful discharge in violation of public policy because

Enlivant’s actions are consistent with public policy on both a local and nationwide scale.

First, the United States has long recognized that vaccines, even when mandated by the

state, are not oppressive or arbitrary if such a mandate does not “go so far beyond what was

reasonably required for the safety of the public.” See Jacobson, 197 US at 28. The EEOC also

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recently recognized the propriety of employers requiring a COVID-19 vaccination for all

employees entering the workplace. See EEOC Guidance. Employer vaccination efforts are also

encouraged by other federal agencies, such as OSHA. See U.S. Dept. of Labor, Occupational

Safety and Health Administration, Frequently Asked Questions, available at

http://www.osha.gov/coronavirus/faqs/#vaccine (noting “DOL and OSHA, as well as other federal

agencies, are working diligently to encourage COVID-19 vaccinations. OSHA . . . does not wish

to disincentivize employers’ vaccination efforts”). Leading health organizations and experts also

strongly support vaccine mandates for healthcare facilities. See Beth Mole, Unvaccinated Health

Workers are “Unethical and Appalling” – Experts Want Mandates, Ars Technica, July 14, 2021,

available at https://arstechnica.com/science/2021/07/unvaccinated-health-workers-are-unethical-

and-appalling-experts-want-mandates/. Indeed, on July 13, 2021, seven health organizations,

including the Society for Healthcare Epidemiology of America, the Association for Professionals

in Epidemiology and Infection, the Infectious Diseases Society of America, and the Pediatric

Infectious Diseases Society, published a consensus statement saying that “COVID-19 vaccination

should be a condition of employment for all healthcare personnel.” See Multisociety Statement

on COVID-19 as a Condition of Employment for Healthcare Personnel, Cambridge University

Press, July 13, 2021, available at https://www.cambridge.org/core/journals/infection-control-and-

hospital-epidemiology/article/multisociety-statement-on-covid19-vaccination-as-a-condition-of-

employment-for-healthcare-personnel/690D1804B72FFF89C5FC0AED0043AD62. 3

3
In accordance with these expert opinions, Enlivant’s vaccine policy is becoming industry standard for long term care
facilities. See Alicia Lasek, Require COVID-19 Vaccination of All Long-Term Care Workers: Experts Reach
Consensus, McKnight Senior Living, July 14, 2021, available at
https://www.mcknightsseniorliving.com/home/news/require-covid-19-vaccination-of-all-long-term-care-workers-
experts-reach-consensus/ (stating that several senior living facilities already have COVID-19 vaccine mandates in
place, including ALG Senior, American House Senior Living Communities, The Arbor Co., Atria Senior Living,
Benchmark Senior Living, Civitas Senior Living, Five Star Senior Living, Juniper Communities, Harbor Retirement
Associates, IntegraCare, Integral Senior Living, Jewish Home Family, Masonicare, Presbyterian Senior Living,
Retirement Center Management, Silverado, Sunrise Senior Living, Trilogy Health Services and Trinity Health).

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Plaintiff inexplicably claims that a mandatory vaccination policy violates the public policy

of the state of West Virginia – a state at the forefront of the nation’s COVID-19 vaccination efforts

with a long history of strict vaccination laws. It makes little sense that a mandatory vaccine policy

implemented by a private entity could violate a state’s public policy when that state itself has some

of the strongest vaccination laws in the United States. 4 West Virginia maintains a strict statewide

school immunization policy, and passed its first statewide compulsory vaccination law in 1905. 5

This policy is supported by the “overwhelming majorities of the public[.]”6 Unlike many states,

West Virginia has never provided for religious or other non-medical exemptions to its vaccination

requirements.7 Indeed, earlier this year, West Virginia’s House of Delegates failed to advance two

bills which would have made private schools exempt from the school immunization policy. 8 West

Virginia’s compelling interest in requiring these vaccinations has been recognized in both state

4
See WV Code 16-3-4 (Compulsory Immunization of School Children) and 64 CSR 95 (Immunization Requirements
and Recommendations for Children Attending School and Enrolled in State Regulated Child Care); see also Jamie
Lynn Crofts, Vaccination Laws: What the Rest of the U.S. Can Learn from Appalachia, Feb. 12, 2019, available at
https://www.100daysinappalachia.com/2019/02/vaccination-laws-what-the-rest-of-the-u-s-can-learn-from-
appalachia/.
5
Id.; see also West Virginia Legislature. An act to amend and re-enact section 21 of chapter 150 of the code of West
Virginia, relating to vaccination and quarantine. Charleston (WV): State of West Virginia; 1905. (Chapter 58, Sec 1);
see also D.J. v. Mercer Cty. Bd. of Educ., No. 13-0237, 2013 WL 6152363 (W. Va. Nov. 22, 2013) (holding there was
a compelling state interest for state rules requiring proof of vaccinations in order for students to attend public school);
Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348 (4th Cir. 2011) (West Virginia statute requiring vaccinations
as requirement of admission to school did not violate equal protection rights of parent or minor child, and state’s wish
to prevent spread of communicable diseases clearly constituted a compelling interest to vaccinate as condition of
admission to school).
6
James Colgrove and Abigail Lowin, A Tale of Two States: Mississippi, West Virginia, and Exemptions to
Compulsory School Vaccination Laws, Health Affairs, Vol. 35, No. 2: Vaccines, Feb. 2016, available at
https://www.healthaffairs.org/doi/10.1377/hlthaff.2015.1172.
7
Id.; see also Workman, 419 F. App’x 348 (finding issue regarding sincerity of parent’s religious beliefs did not raise
factual dispute because those beliefs “do not exempt her from complying with West Virginia’s mandatory
immunization program”).
8
Taylor Stuck, Bill to Exempt W.Va. Private Schools from Vaccine Requirement Fails to Pass Committee, The
Herald-Dispatch, March 4, 2021, available at https://www.herald-dispatch.com/news/bill-to-exempt-w-va-private-
schools-from-vaccine-requirements-fails-to-pass-committee/article_abcd5d9b-0351-5aa0-beab-92a3fa10dda3.html.

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and federal court.9 As of March 2021, the state’s vaccination rate for school-aged children was

reportedly 97-98%.10

West Virginia has also demonstrated great success in its statewide vaccination efforts for

COVID-19.11 On July 6, 2021, West Virginia’s Governor Jim Justice, announced that over 1

million West Virginians have now received at least one dose of the COVID-19 vaccine, while

836,954 have been fully vaccinated:12

To date, 79.4% of West Virginians ages 50 and older have received at least one dose of the

vaccine.13 West Virginia has also developed incentive programs, such as the Governor’s “Do It

9
See D.J.., 2013 WL 6152363; Workman, 419 F. App’x 348.
10
Id.
11
See Office of the Governor, COVID-19 Update: Gov. Justice Announces Over 1 Million West Virginians Have
Now Received at Least One Dose of the COVID-19 Vaccine, July 6, 2021, available at
https://governor.wv.gov/News/press-releases/2021/Pages/COVID-19-UPDATE-Gov.-Justice-announces-over-1-
million-West-Virginians-have-now-received-at-least-one-dose-of-vaccine.aspx.
12
Id.
13
Id.

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For Babydog: Save a life, Change your life” vaccination sweepstakes, to “increase awareness of

the availability and efficacy of COVID-19 vaccines and provide incentives to West Virginians to

get their COVID-19 vaccination.”14 The program, a publicly-funded statewide prize drawing for

West Virginians who have received at least one COVID-19 vaccine, includes a $1.588 million

grand prize, a $588,000 second prize, trucks, state park vacations, lifetime hunting and fishing

licenses, and custom hunting rifles and shotguns. 15 West Virginians between the ages of 12 and

17 years old who have received at least one dose of the Pfizer COVID-19 vaccine may also enter

to win a four-year full scholarship, including tuition, books, and room and board, to any West

Virginia state college or university.16 Thus, far from prohibiting Enlivant from instituting a

COVID-19 mandatory vaccination policy, West Virginia public policy overwhelmingly supports

it.

Plaintiff also alleges that Enlivant violated 21 U.S.C. § 360bbb-3, a federal law regarding

authorization for medical products for use in emergencies. She claims that Enlivant’s vaccination

policy violates federal law because no one can be mandated to receive “unapproved” medicines in

emergencies, and no currently available vaccines have been fully approved by the FDA. This

argument grossly misinterprets § 360bbb-3. While the provision confers certain powers and

responsibilities to the Secretary of Health and Human Services in the event of an emergency, it

neither expands nor restricts the responsibilities of a private employer. See 21 U.S.C. § 360bbb-

3; see also Bridges, 2021 WL 2399994, at *2 (“in fact, [§ 360bbb-3] does not apply at all to private

14
Do It For Babydog: Save a life, Change your life, available at https://doitforbabydog.wv.gov/.
15
Id.
16
Id.

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employers like the hospital in this case. It does not confer a private opportunity to sue the

government, employer, or worker.”).

Additionally, Plaintiff argues that the vaccination policy violates the Nuremberg Code,

likening the threat of termination to forced medical experimentation during the Holocaust, and that

“medical experiments” may not be performed on “human subjects” without informed consent.

First, the Nuremberg Code does not apply here, as Enlivant is a private employer – not a

government. See Bridges, 2021 WL 2399994, at *2 (rejecting the same argument, and calling the

equating of a mandatory injection requirement to medical experimentation in concentration camps

“reprehensible”). Second, Plaintiff’s argument regarding the protection of “human subjects” is

misleading at best – Plaintiff has not alleged that Enlivant has applied to test the COVID-19

vaccine on its employees, or that it has been certified to proceed with its own clinical trials, and

Enlivant’s employees are not participants in a human trial. Id. Accordingly, Plaintiff’s claims that

the policy violates federal law and/or the Nuremberg Code also fail.

3. Plaintiff’s Employment was At-Will.

It is a long-established rule in West Virginia that “[w]hen a contract of employment is of

indefinite duration it may be terminated at any time by either party to the contract.” Swears v.

R.M. Roach & Sons, Inc., 225 W. Va. 699, 703, (2010); citing Syl. pt. 2, Wright v. Standard

Ultramarine & Color Co., 141 W.Va. 368, (1955). Thus, “an at-will employee serves at the will

and pleasure of his or her employer and can be discharged at any time, with or without cause.” Id.,

citing Feliciano v. 7–Eleven, Inc., 210 W.Va. 740, 745, (2001). Therefore, absent some substantial

public policy exception to the at-will employment doctrine, an employee may be terminated at any

time, with or without cause. Id.

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West Virginia courts have defined “public policy” as “that principle of law which holds

that no person can lawfully do that which has a tendency to be injurious to the public or against

public good ... even though no actual injury may have resulted therefrom in a particular case to the

public.” See Blanda v. Martin & Seibert, L.C., 242 W. Va. 552, 556, (2019); citing Cordle v. Gen.

Hugh Mercer Corp., 174 W.Va. 321, 325, (1984). To identify the source of public policy for

purposes of determining whether a retaliatory discharge has occurred, courts look to established

precepts in the constitution, legislative enactments, legislatively approved regulations, and judicial

opinions. See Blanda, 242 W. Va. at 556, citing Birthisel v. Tri-Cities Health Servs. Corp., 188

W. Va. 371, 376, (1992) (finding general provisions regarding requirements for good patient care

did not constitute clear and substantial public policy on which retaliatory discharge claim could be

based). Courts have further recognized that the public policy must be “substantial” – that is, it

must be clearly recognized simply because it is substantial. Id. “An employer should not be

exposed to liability where a public policy standard is too general to provide any specific guidance

or is so vague that it is subject to different interpretations. Id.

As explained above, Plaintiff identifies no applicable exception to West Virginia’s at will

employment doctrine. Indeed, an examination of legislative and judicial precedent points to the

opposite result. Enlivant’s actions are consistent with public policy, and the fact that Plaintiff had

to choose between complying with Enlivant’s policy or being fired does not create a cause of

action. See, e.g., Bridges, 2021 WL 2399994, at *2 (rejecting plaintiff’s argument that such a

choice was coercion, noting plaintiff could freely accept or refuse a COVID-19 vaccine and

stating: “If a worker refuses an assignment, changed office, earlier start time, or other directive, he

may be properly fired. Every employment includes limits on the worker's behavior in exchange

for his remuneration. That is all part of the bargain.”).

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Under Enlivant’s mandatory vaccination policy, Plaintiff had a choice – she could comply

with the policy and continue working at the community with vulnerable senior citizens, or she

could refuse and seek employment elsewhere. She chose the latter. Thus, Plaintiff’s claims for

retaliatory discharge fail as a matter of law.

B. Plaintiff’s Claim for Injunctive Relief Fails as a Matter of Law.

Plaintiff also requests that the Court issue a preliminary injunction “after notice and

hearing” restraining Enlivant from firing Plaintiff for her refusal to be vaccinated against COVID-

19, and ordering Enlivant to reemploy her. Based on the ambiguous wording of Plaintiff’s request,

it is unclear whether she means for this restraint to apply to other Enlivant employees as well.

Regardless of Plaintiff’s intent, her petition must be denied due to technical deficiencies and

because the balancing of equities favors Enlivant.

1. Plaintiff Failed to Satisfy the Requirements of WV. R. Civ. P. 65.

In West Virginia, a preliminary injunction cannot be obtained without notice to the adverse

party. WV R. Civ. P. 65(a)(1); see also Camden-Clark Mem’l Hosp. Corp. v. Turner, 212 W.Va.

752, 758 (2002). Despite specifying in her Complaint that she was seeking a preliminary

injunction, Plaintiff failed to provide notice to Enlivant she was seeking such relief.

While a party may instead seek a temporary restraining order, which does not require such

notice, a party seeking such relief must show that immediate and irreparable injury, loss or damage

will result to the applicant before the adverse party can be heard. WV. R. Civ. P. 65(b). The Court

should grant such relief only if it clearly appears from specific facts shown by affidavit or verified

complaint that immediate injury is likely to occur. Id; Camden-Clark Mem’l Hosp. Corp., 212 W.

Va. at 754; citing Ashland Oil, Inc. v. Kaufman, 181 W. Va. 728 (1989). The applicant’s attorney

must also certify to the court the efforts (if any) made to provide notice to the adverse party and

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reasons supporting any claim that such notice should not be given. Id. To the extent Plaintiff’s

petition is instead seeking a temporary restraining order, it should be denied (1) because she

provided no affidavit or verified complaint demonstrating an unusual risk of immediate harm, and

(2) Plaintiff’s counsel makes no representations regarding efforts to provide notice to Enlivant.

Further, any argument of immediate and irreparable injury is contradicted by Plaintiff’s

own failure to promptly prosecute her petition for injunctive relief. To date, Plaintiff has neither

filed an appropriate motion for injunctive relief nor moved for a hearing regarding the same. Thus,

Plaintiff’s petition for injunctive relief should be dismissed.

2. The Balancing of Equities Favors Denial of an Injunction.

A preliminary injunction is an extreme remedy justified only under extraordinary

circumstances. See Ashland Oil, Inc., 181 W.Va. 728. In determining whether to grant a

preliminary injunction, this Court must conduct a balancing of hardship test which considers: (1)

the likelihood of irreparable harm to Plaintiff without the injunction; (2) the likelihood of harm to

Enlivant with the injunction; (3) Plaintiff’s likelihood of success on the merits of her case; and (4)

the public interest. See Camden-Clark Mem’l Hosp. Corp., 212 W.Va. at 756. Here, the balance

of equities strongly favors denial of injunctive relief: Plaintiff is unlikely to succeed on the merits

of her claims, and such an injunction would cause substantial harm to both Enlivant and the public.

First and foremost, Plaintiff’s petition must fail because she has not and cannot establish a

likelihood of success on the merits of her claims. While Plaintiff need not prove that she will

ultimately win her case, she must demonstrate a “likelihood of success on the merits.” See, e.g.,

Morrisey v. W. Va. AFL-CIO, 239 W. Va. 633, 642 (2017). For the reasons set forth above,

Plaintiff cannot do so here. Her petition for injunctive relief should thus be denied. Id.

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Second, Plaintiff’s petition must fail because greater injury would result from granting the

order than denying it, and because granting it would disservice the public interest. See, e.g., Toure

v. Hott, 458 F. Supp. 3d 387, 408 (E.D. Va. 2020), appeal dismissed, No. 20-6695, 2020 WL

9596387 (4th Cir. Oct. 6, 2020) (balance of equities and public interest favored denial of

preliminary injunction); see also Bridges, No. 4:21-cv-01774, ECF No. 10 (SD Tx June 4, 2021)

(denying motion for temporary restraining order). In Bridges, the court found that granting a

temporary restraining order would disserve the public interest, stating:

The public’s interest in having a hospital capable of caring for patients during a
pandemic far outweighs protecting the vaccination preferences of 116 employees.
The plaintiffs are not just jeopardizing their own health; they are jeopardizing the
health of doctors, nurses, support staff, patients, and their families.

Id. at ¶ 4. Similarly, here, the public’s interest in ensuring safe and healthy living conditions for

vulnerable senior citizens, its staff, and their families. This is particularly true given that older

adults are at an increased risk of severe illness and death from COVID-19. See, e.g., Center for

Disease Control and Prevention, COVID-19 Guidance for Older Adults, last visited July 11, 2021,

available at https://www.cdc.gov/aging/covid19-guidance.html (explaining that older adults are at

higher risk for developing more serious complications from COVID-19 illness, and die more

frequently from COVID-19); see also Alicia Lasek, Require COVID-19 Vaccination of all Long-

Term Care Workers: Experts Reach Consensus, McKnight Senior Living, July 14, 2021, available

at https://www.mcknightsseniorliving.com/home/news/require-covid-19-vaccination-of-all-long-

term-care-workers-experts-reach-consensus/ (noting that long term care residents tend to be more

frail and therefore susceptible to poor outcomes from infections, and are at continuous risk of

infection from care providers due to the length of their stay).

Enlivant’s interest in protecting the safety of its staff, residents, their families, and the

general public from preventable spread of COVID-19 through the enforcement of a vaccination

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 Case 5:21-cv-00393 Document 5 Filed 07/16/21 Page 16 of 17 PageID #: 91

policy far outweighs Plaintiff’s personal preference to forego the vaccine. Accordingly, Plaintiff’s

petition for preliminary injunction should be dismissed.

VI. Conclusion

Plaintiff’s claims do not constitute actionable conduct or a deprivation of rights under West

Virginia law. Enlivant thus respectfully requests that the Court dismiss Plaintiff’s Complaint with

prejudice.

Dated: July 16, 2021 Respectfully submitted,

OGLETREE, DEAKINS, NASH,

SMOAK & STEW ART, P.C.

By: /s/Bethany S. Wagner ___________

Bethany S. Wagner
WV 11341
One PPG Place, Suite 1900
Pittsburgh, Pennsylvania 15222
412-315-6040
[email protected]

Attorney for Defendant

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 Case 5:21-cv-00393 Document 5 Filed 07/16/21 Page 17 of 17 PageID #: 92

CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of July, 2021, I filed the foregoing via the Court’s

CM/ECF system and served the foregoing via U.S. First Class Mail, postage pre-paid, to the

following:

John H. Bryan, Esq.

411 Main Street
P.O. Box 366
Union, WV 24983

Attorney for Plaintiff

/s/ Bethany S. Wagner

Bethany S. Wagner, Esq.
Attorney for Defendant

47841284.1

17