Bobby Bellard; Craig Messick; Barbra Speer, v. University of Texas M.D. Anderson Cancer Center: That’s One For the Good Guys
By
Leonard Zwelling
You remember Covid-19? Do you remember the first mRNA vaccines and the excitement that surrounded the announcement of their availability? Do you also remember that some people were reticent to get vaccinated for a host of reasons? Do you remember that some major medical institutions fired staff who would not get vaccinated even if they had religious reasons for not getting the shot? Do you remember that UT M.D. Anderson was one of those institutions?
Once the Covid vaccine became available, President Pisters formed a Covid Core Leadership Team under Rosanna Morris (COO) and a Vaccination Task Force under Roy Chemaly (Chief Infection Control Officer). These leaders were in charge of the vaccination program at UT M.D. Anderson. The goal was to get all employees and faculty vaccinated.
Well, here are some things that you may not remember or perhaps never knew.
There were permissible exceptions to the vaccine mandate at UT M.D. Anderson. A five-person committee consisting of Ashley Palermo (Legal), Courtney Hodges (HR), Ryan Roux (Pharmacy), Colleen Gallagher (Ethicist), and Gale Kennebrew (Chaplain) called the Religious Accommodation Committee (RAC) under the auspices of Shibu Varghese, Senior VP for People, Culture, and Infrastructure, received requests for exceptions from having to get vaccinated on the basis of religious beliefs. The decisions of the RAC were final! Denied employees could not “appeal or grieve” the decisions and no explanations were given when someone’s request was denied.
Shibu Varghese was unable to articulate why some exemptions were approved and some were not. In addition, “Varghese ignored employees’ requests for assistance or explaining unequal treatment and never reviewed RAC’s work to ensure evaluating requests were consistent with equal protection and Title VII.”
Religious exemptions began to be accepted November of 2021. Drs. Bellard and Speer applied promptly, but were denied. They requested further explanation. They got none. Dr. Messick too requested an exemption. He too was denied.
The RAC denied 292 requests and approved 298 in November of 2021. No one on the RAC has been able to explain their decisions despite UT M.D. Anderson admitting that they could have accommodated every religious exemption request without undue hardship. The appellant brief noted that at one point UT M. D. Anderson had approved 310 exemptions and denied 170.
Furthermore, sources have revealed that the RAC never really met to discuss exemption requests, never established ANY criteria for granting a religious exemption, and did not keep minutes.
On February 23, 2022 Chief Academic Officer Carin Hagberg put the three physicians on leave, gave them official notices that their employment contracts would not be renewed, suspended their clinical privileges, and denied them access to resources, to campus, and, of course, to patients. Only them getting vaccinated against their religious beliefs would get the sentence reversed.
On March 21, 2022, after UT M.D. Anderson and six named defendants were sued by the three faculty members, this decision against these doctors was reversed. No one seems to know why according to court documents. Ultimately 170 previously denied exemption requests were reversed.
The problem was that the physicians had had their privileges suspended even if only for a month. That fact would need to be declared in all future requests for clinical privileges or for medical licensure anywhere and thus the actions of UT M.D. Anderson leadership had done irreparable harm to these physicians.
On May 30, 2024 the Appeals Court brief stated: “this Court should reverse the court below regarding mootness, and hold in Plaintiffs’ (the three doctors) favor on the merits of the case.”
In summary, UT M.D. Anderson decided that everyone must be vaccinated against Covid-19 when vaccines became available. The institution put in place a process to request exemptions on religious grounds. That process was at best arbitrary and opaque and replaced the already in place EEOC process for religious exemption requests for the institution.
The leaders of the institution, all named as Defendants in the case, were at best inept in their handling of what was, by definition a delicate situation. At worst the institution’s leadership was both tyrannical and openly hostile to faculty and staff with religious convictions that precluded them getting the vaccine. More than anything, the institution cut off communication between decision makers and those affected by their decisions.
In every way, the decision of the U.S. District Court as reflected in the Fifth Circuit Court of Appeals brief by the Plaintiffs’ attorney used to inform this blog is a major victory for the faculty and a defeat for the leadership of the institution. The Southern District Court held the doctors’ beliefs were sincerely held and UT M.D. Anderson had committed an adverse employment action against the doctors.
One would have to wonder why any of these UT M.D. Anderson leaders still have their jobs given the way this was mishandled and the fact that people who didn’t want to get a shot based on sincerely-held principles had to go to federal court to make this right.
This blog has repeatedly questioned the competence of the leadership of UT M.D. Anderson. This is why.
