By Gerald L. Maatman, Jr., Rebecca Bjork, and Brett Bohan
Duane Morris Takeaways: On July 7, 2026, in Feds for Medical Freedom, et al. v. Garland, No. 4:23-CV-01817, 2026 U.S. Dist. LEXIS 149239 (S.D. Tex. July 7, 2026), Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas denied plaintiffs’ motion for class certification of one overarching disparate impact class, a failure to accommodate sub-class, and a constructive discharge sub-class of FBI employees who sought religious exemptions to the Bureau’s COVID-19 vaccine mandate. The Court held that due to the predominance of individualized questions regarding the harms suffered by putative class members and the highly fact-specific nature of their claims, plaintiffs failed to satisfy Rule 23(b)(3)’s predominance requirement for the disparate impact class and the failure to accommodate sub-class, and failed to satisfy both Rule 23(a)’s commonality requirement and Rule 23(b)(3)’s predominance requirement for the constructive discharge sub-class.
The opinion illustrates the significant obstacles plaintiffs face when attempting to certify classes in cases where putative class members experienced widely varying consequences from a common policy and the effective arguments employers can raise to defeat such motions.
Case Background
Plaintiffs were current and former FBI employees who requested religious exemptions to the Bureau’s COVID-19 vaccination requirement. Id. at *4-5. In September 2021, President Biden issued Executive Order 14,043, which required COVID-19 vaccination for all federal employees. Id. at *2. The FBI implemented the order by directing all employees to comply by November 22, 2021, while also creating a process through which employees could request exemptions. Id. at *3. About 2,500 employees requested exemptions. Employees who received religious accommodations to the vaccine were required to adhere to masking, social distancing, and frequent testing protocols. Id. at *3-4. Employees who failed to provide proof of a negative COVID-19 test would be “charged Absent Without Leave” or subjected to “further punitive action up to and including termination.” Id. at *4.
Plaintiffs filed suit on May 17, 2023, and sought to certify one overarching class and two subclasses. Id. at *6-7. The proposed overarching Disparate Impact Class consisted of “all current and former Bureau employees who requested a religious accommodation to the vaccine requirement and were subsequently required to test, mask, and/or socially distance.” Id. The proposed Failure to Accommodate Subclass consisted of “employees who requested and were denied a religious exemption for the testing, masking, and social distancing requirements.” Id. The proposed Constructive Discharge Subclass consisted of former employees “who experienced constructive discharge after requesting a religious accommodation.” Id.
The Court’s Opinion
In a thorough opinion, Judge Ellison denied plaintiffs’ motion for class certification, concluding that none of the three proposed classes satisfied the requirements for certification under Rule 23(b)(3).
The Disparate Impact Class
The Court found that, while the proposed disparate impact class satisfied numerosity, commonality, typicality, and adequacy under Rule 23(a), it failed to meet Rule 23(b)(3)’s predominance requirement. Id. at *11–21. The Court relied heavily on the Fifth Circuit’s recent decision in Kincannon v. United Airlines, Inc., 168 F.4th 713 (5th Cir. 2026), which addressed a “very similar question” involving airline employees subject to masking-and-testing accommodations and affirmed the denial of class certification on predominance grounds. Id. at *17. Like the plaintiffs in Kincannon, plaintiffs here alleged numerous consequences stemming from the masking and testing requirements — some complied but experienced discomfort, others refused and were placed on unpaid leave, and still others did not comply but suffered no formal adverse employment consequences. Id. at *18-19. The Court concluded that “the putative class members were [harmed] in different ways,” and the highly individualized nature of the harms precluded a finding of predominance. Id. at *20.
The Court also rejected plaintiffs’ proposed damage-calculation model, which involved stipulations to certain amounts of damages for each hour of masking and each test taken, as well as generalized per diem damages for stress, anxiety, and humiliation. Id. at *20. The Court reasoned that “compensatory damages for emotional distress and other forms of intangible injury will not be presumed from mere violation of constitutional or statutory rights” but instead require “[s]pecific individualized proof.” Id. at *21.
The Failure to Accommodate Sub-class
The Court held that the failure to accommodate subclass suffered from the same predominance problems as the disparate impact class. Id. at *22. Even assuming that all accommodation requests were denied based on a blanket policy, each failure to accommodate claim still required extensive individualized inquiry into whether the plaintiffs held bona fide religious beliefs, whether those beliefs conflicted with the requirements, what adverse employment actions the plaintiffs experienced, and what damages were appropriate. Id. at *23.
The Constructive Discharge Sub-class
The Court concluded that the constructive discharge subclass failed to satisfy Rule 23(a)’s commonality requirement or Rule 23(b)(3)’s stricter predominance requirement either. Id. at 27. The Court reasoned that constructive discharge is “necessarily a fact-heavy, highly individualized inquiry that depends on the employee’s particular circumstances.” Id. at *26. The Court noted that even the named plaintiffs had vastly different circumstances — one faced a misconduct investigation and had his security clearance suspended, while another was never demoted or placed on unpaid leave but simply retired. Id. at *28.
Implications For Employers
The Court’s decision in Feds for Medical Freedom provides several important takeaways for employers. First, it demonstrates that even where all putative class members were subject to the same facially neutral employer policy, class certification may be defeated where the policy’s effects on individual employees vary significantly. Employers facing class action challenges to workplace policies should carefully document the individualized nature of any harms or consequences experienced by employees and draw upon the growing body of precedent in the Fifth Circuit skeptical of these claims to argue that diverse injuries among putative class members preclude a finding of predominance.
Additionally, the ruling confirms that plaintiffs cannot circumvent the predominance requirement through creative damage-calculation models. Stipulating to generalized damages does not alter the fundamental requirement that each plaintiff prove individualized harm.
Finally, the opinion illustrates that constructive discharge claims are particularly ill-suited for class treatment due to their inherently fact-intensive nature, offering employers a strong argument against certification of such claims on a class-wide basis.