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25-P-168 Appeals Court
TIMOTHY JANGL vs. SECRETARY OF THE EXECUTIVE OFFICE OF HEALTH
AND HUMAN SERVICES & another.1
No. 25-P-168
Suffolk. January 8, 2026. – October 15, 2026.
Present: Desmond, D'Angelo, & Smyth, JJ.
Public Health, Immunization. Religion. Employment,
Discrimination. Anti-Discrimination Law, Religious
beliefs, Employment, Burden of proof. Practice, Civil,
Summary judgment, Affidavit. Witness, Expert. Evidence,
Expert opinion, Qualification of expert witness.
Civil action commenced in the Superior Court Department on March 10, 2022.
The case was heard by Rosemary Connolly, J., on a motion for summary judgment.
Peter Vickery for the plaintiff.
Jeffrey T. Collins, Special Assistant Attorney General, for the defendants.
1 Department of Children and Families.
2
SMYTH, J. By August 2021, the COVID-19 pandemic had
claimed over 17,000 lives in Massachusetts.2 To mitigate the
spread and severity of the disease, then Governor Charles D.
Baker issued Executive Order No. 595, requiring vaccination
against COVID-19 for certain government employees, including the
plaintiff, Timothy Jangl, a social worker employed by the
Department of Children and Families (department). When the
department denied Jangl's request for a religious exemption from
the vaccination requirement, Jangl filed a complaint in the
Superior Court against the defendants, the department and the
Secretary of the Executive Office of Health and Human Services
(EOHHS), alleging religious discrimination in violation of G. L.
c. 151B, § 4 (1A). The questions before us on appeal are
(1) whether the judge properly denied Jangl's motion to strike
the affidavit of the defendants' medical expert, who testified
to the dangers of COVID-19 and the effectiveness of vaccination,
and (2) whether the judge properly granted summary judgment in
favor of the defendants on the ground that accommodating Jangl's
request would have imposed an undue hardship on the department.
Because the defendants' expert was qualified to opine on these
topics, and because the uncontroverted evidence in the summary
2 See Massachusetts Department of Public Health, COVID-19 Raw Data -- August 2, 2021, https://www.mass.gov/doc/covid-19-raw-data-august-2-2021/download.
3
judgment record demonstrates that permitting Jangl to continue
his work unvaccinated would have compromised the department's
operations and jeopardized public health, we answer both
questions in the affirmative.
1. Background. a. Facts. We summarize the material
facts from the summary judgment record, see Banevicius v.
Barnstable, 497 Mass. 585, 587 (2026), noting that, to the
extent the plaintiff failed to controvert the defendants'
statement of undisputed facts in compliance with Rule
9A(b)(5)(iii)(A) of the Rules of the Superior Court (2023),
those facts are deemed admitted. See Dziamba v. Warner &
Stackpole LLP, 56 Mass. App. Ct. 397, 400-401 (2002). These
undisputed facts, supplemented by the record, are as follows.
In the fall of 2021, the plaintiff was employed by the
department as a social worker, where his role involved regular
and extensive face-to-face contact with children and families,
coworkers, court personnel, and other members of the community.
His work was plainly "not compatible with working exclusively
from home." The plaintiff served nineteen families, and his
responsibilities included visiting children and parents in their
homes, accompanying children to various appointments,
supervising parenting time, and attending court hearings. One
of the children he served "had significant medical issues,"
requiring treatment for which the plaintiff sometimes
4
transported the child from western Massachusetts to Boston
Children's Hospital and to other medical and service providers.
One day per week, the plaintiff also acted as the duty worker
for his unit, conducting emergency home visits and assisting in
the removal of children from their homes as needed.
In August 2021, after having ceased most in-person
functions in response to the COVID-19 pandemic, the department
had begun a transition back to normal operations, implementing a
policy requiring workers to be in the office at least two days
per week. Around this same time, Governor Baker issued
Executive Order No. 595, requiring all executive department
employees in the Commonwealth to be vaccinated against COVID-19
as a condition of continued employment. See Executive Order No.
595 (Aug. 19, 2021), https://www.mass.gov/executive-orders/no595-implementing-a-requirement-for-covid-19-vaccination-for-thecommonwealths-executive-department-employees
[https://perma.cc/C63E-JV6G]. The order also required the human
resources division of the Commonwealth to establish, and the
department to implement, a written policy that included "a
procedure to allow limited exemptions from the vaccination
requirement where a reasonable accommodation can be reached for
any employee . . . who is unwilling to receive COVID-19
vaccination due to a sincerely held religious belief." Id.
5
Shortly thereafter, the plaintiff sought a religious
exemption from the vaccination requirement. The plaintiff
requested that the department accommodate his religious beliefs
by reducing his mandated time in the office and permitting him
to continue working remotely; the plaintiff contended in his
request, "I have performed all my work duties in the
satisfactory range or above and have done well over the course
of the past year and a half with minimal to no office time." As
part of his reasonable accommodation request, the plaintiff also
proposed wearing a mask "in all domains/environments that [his]
job entail[ed]" and undergoing weekly testing for COVID-19.
The department and EOHHS officials reviewed the plaintiff's
request pursuant to the established exemption process before
denying it on the ground, among others, that, considering the
plaintiff's duties and the comparatively weak protection from
infection, hospitalization, and death offered by the plaintiff's
proposed alternatives to vaccination, the plaintiff's religious
beliefs could not be accommodated without undue hardship to the
department. In October 2021, presented with the choice between
receiving the COVID-19 vaccine and being terminated, the
plaintiff opted to resign from his position.
b. Procedural history. After exhausting his
administrative remedies, the plaintiff filed a complaint in the
Superior Court, alleging that the department had discriminated
6
against him on the basis of his religion, in violation of G. L.
c. 151B, § 4. In essence, the plaintiff argued that vaccination
does not actually protect against COVID-19; consequently,
"[a]ccommodating Plaintiff's religious observance and practice
would not have imposed an undue hardship on Defendants."
The defendants moved for summary judgment, attaching to
their motion a statement of undisputed material facts and
several affidavits, including one from Dr. Lawrence Madoff, the
medical director of the bureau of infectious disease and
laboratory sciences at the Massachusetts Department of Public
Health (bureau). In his affidavit, Dr. Madoff attested to the
dangers of COVID-19 and the safety and effectiveness of
vaccination against the disease. The plaintiff opposed summary
judgment and moved to strike Dr. Madoff's affidavit, arguing
that Dr. Madoff was unqualified to testify to the efficacy of
COVID-19 vaccines. In particular, the plaintiff argued that
Dr. Madoff's opinion was not based on sufficient facts or data,
was not the product of reliable principles and methods, and did
not reflect a reliable application of the principles and methods
to the facts of the case. The plaintiff complained that
Dr. Madoff had not himself conducted any research regarding the
vaccines and that his opinion relied entirely on studies, some
of which failed to reflect the most recent figures on COVID-19
vaccination and infection. However, the plaintiff offered no
7
supporting declarations or expert evidence to refute
Dr. Madoff's opinion, and he did not request a hearing to
challenge the reliability of its underlying methodology.
A judge of the Superior Court granted summary judgment in
favor of the defendants, accepting the plaintiff's religious
beliefs as true and sincerely held, but concluding that allowing
the requested vaccine exemption would have imposed an undue
hardship on the department. In the same memorandum of decision
and order, the judge denied the plaintiff's motion to strike,
finding that "Dr. Madoff [had] set out his qualifications and a
sufficient basis for his opinions."
2. Discussion. a. Motion to strike. The plaintiff first
argues that the judge should have allowed his motion to strike
Dr. Madoff's affidavit on the basis that Dr. Madoff was
unqualified to give an opinion as to the effectiveness of
vaccination against COVID-19. At the summary judgment stage,
Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974), requires
litigants "to proffer facts that would be admissible in
evidence. This requirement applies to proffered expert opinions
as well . . . ." Abdulky v. Lubin & Meyer, P.C., 102 Mass. App.
Ct. 441, 453 (2023), cert. denied, 144 S. Ct. 806 (2024). The
same standard applies to the admissibility of expert opinion on
summary judgment and at trial. See id. In both instances, the
judge takes on the role of "gatekeeper." Commonwealth v.
8
Lanigan, 419 Mass. 15, 26 (1994). "The crucial issue, in
determining whether a witness is qualified to give an expert
opinion, is whether the witness has sufficient education,
training, experience and familiarity with the subject matter of
the testimony" (quotations and citation omitted). McLaughlin v.
Selectmen of Amherst, 422 Mass. 359, 361-362 (1996). Although
"[a] medical expert need not be a specialist in the area
concerned," such testimony is "particularly appropriate" where
his or her "expertise [is] in the very field at issue." Letch
v. Daniels, 401 Mass. 65, 68, 69 (1987).
In this case, Dr. Madoff averred in his affidavit that he
was board certified in internal medicine and infectious
diseases, a professor of medicine at the University of
Massachusetts Chan Medical School, a fellow of the Infectious
Disease Society of America, and the medical director of the same
bureau that administered the Massachusetts COVID-19 vaccine
program. As the medical director of the bureau, Dr. Madoff
provided consultation, supervision, and guidance "in disease
recognition, investigation and control, as well as
interpretation and application of policies and procedures" in
these subject areas. Given Dr. Madoff's extensive experience in
infectious diseases, in addition to his familiarity with the
Commonwealth's vaccination efforts in response to the COVID-19
9
pandemic, the judge had a more than adequate basis to determine
that Dr. Madoff was qualified as an expert.
The plaintiff also challenges the admissibility of the
content of Dr. Madoff's affidavit. As a threshold matter,
insofar as the plaintiff argues that the methodology underlying
Dr. Madoff's opinion is unreliable, that issue has been waived.
See Commonwealth v. Wilkerson, 486 Mass. 159, 172 (2020) ("Where
a defendant does not request a Daubert-Lanigan hearing to
challenge the general scientific reliability of the methodology
prior to trial, the issue is waived on appeal").3 See also
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595
(1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994).
That the case was resolved at the summary judgment stage does
not relieve the plaintiff of his responsibility to seek a
3 The plaintiff did challenge Dr. Madoff's methodology in his motion to strike. He did not, however, request a hearing, or indeed, cite at any point to Lanigan or its progeny. There is no substitute for an express Daubert-Lanigan motion. See Commonwealth v. Murphy, 59 Mass. App. Ct. 571, 575-576 (2003) (arguments regarding scientific reliability of expert's conclusions do not constitute proper request for Lanigan hearing). See also Commonwealth v. Davis, 487 Mass. 448, 458 n.12 (2021), S.C., 491 Mass. 1011 (2023), quoting Commonwealth v. Sparks, 433 Mass. 654, 659 (2001) (to preserve objection to reliability of expert's scientific methodology, objecting party must "[a]t a minimum" file appropriate motion "stating the grounds for the objections and request a hearing"). The plaintiff made no such motion before the Superior Court, and furthermore, he does not now argue that he was entitled to a hearing on the reliability of Dr. Madoff's scientific methodology. The issue, therefore, has been waived.
10
Daubert-Lanigan hearing. See DeRosa v. Lenox Farms Ltd.
Partnership, 104 Mass. App. Ct. 510, 515 (2024); Molly A. v.
Commissioner of the Dep't of Mental Retardation, 69 Mass. App.
Ct. 267, 284 n.24 (2007) (ruling on motion for summary judgment,
trial judge did not abuse discretion in declining to subject
expert affidavits to Lanigan gatekeeper analysis, "because
neither party made a Lanigan challenge to the other's expert
evidence"). When addressing a challenge to the admissibility of
expert evidence, "courts must be cautious -- except when defects
are obvious on the face of a proffer -- not to exclude debatable
scientific evidence without according the proponent of the
evidence adequate opportunity to defend its admissibility."
DeRosa, supra, quoting Cortés-Irizarry v. Corporación Insular de
Seguros, 111 F.3d 184, 188 (1st Cir. 1997). The plaintiff
created no such opportunity below by moving for a DaubertLanigan hearing, and as a result, his arguments on this point
are waived.
The plaintiff's other concerns about Dr. Madoff's affidavit
go to its weight, not its admissibility, which is not a factor
to be considered by a judge in reviewing a motion to strike.
Commonwealth v. Hinds, 487 Mass. 212, 224 (2021), S.C., 494
Mass. 681 (2024) ("a judge acting as gatekeeper must limit his
or her analysis to the reliability of an expert's methodology,
not the persuasiveness of the conclusion"). First, contrary to
11
the plaintiff's contention, Dr. Madoff was permitted to base his
testimony on scientific studies. The purpose of expert
testimony is to assist the fact finder "in interpreting evidence
that lies outside their common experience." Commonwealth v.
Shanley, 455 Mass. 752, 761 (2010). That evidence includes data
aggregated from multiple sources. See Commonwealth v. Durand,
475 Mass. 657, 670 (2016), cert. denied, 583 U.S. 896 (2017)
(expert's "reliance on treatises and literature not in evidence
was proper opinion testimony"). Indeed, an expert's opinion may
be based wholly on such sources, so long as "'the facts or data
are independently admissible' and are 'of the sort that experts
in that specialty rely on.'" Commonwealth v. McNickles, 434
Mass. 839, 855 (2001), quoting Department of Youth Servs. v.
A Juvenile, 398 Mass. 516, 531, 532 (1986). We have never
required that such sources be the product of the testifying
expert's own research. See Durand, supra at 669-670 (expert
testimony admissible even though opinion was "based upon studies
that she did not perform and literature that she did not
author").
Furthermore, even if, as the plaintiff contends,
Dr. Madoff's affidavit relied on outdated studies about the
rates of COVID-19 infection after vaccination, this argument,
too, goes to weight and would not render Dr. Madoff unqualified
or his testimony inadmissible. See Commonwealth v. Crouse, 447
12
Mass. 558, 569 (2006) ("where an expert has been determined to
be qualified, questions or criticisms as to whether the basis of
the expert's opinion is reliable go to the weight, and not the
admissibility, of the testimony"). Likewise, Dr. Madoff's
qualification is unaffected by his purported failure to address
the limitations of the studies he cites; his treatment of -- or
failure to address -- contrary evidence is irrelevant to his
qualification to testify. See Kilmartin v. Lowell Gen. Hosp.,
23 Mass. App. Ct. 901, 902 (1986) ("The weight to be accorded
[expert] opinion in relation to contrary evidence belongs at a
later stage of proceedings").
Finally, the plaintiff complains that Dr. Madoff's
affidavit leaves certain "basic questions" about the COVID-19
vaccine unanswered, including questions as to the exact strength
and duration of protection from illness. However, so long as
omissions do not render an expert affidavit "so incomplete as to
be 'irrelevant' to" the ultimate issue -- which is not the case
here -- that Dr. Madoff may not have addressed every potential
aspect of the case, "affects the probativeness, rather than the
admissibility" of his affidavit. Salvas v. Wal-Mart Stores,
Inc., 452 Mass. 337, 360 (2008).
As the plaintiff has provided no basis to doubt either
Dr. Madoff’s qualifications as an expert or his methodology, the
13
judge did not abuse her discretion in denying the plaintiff’s
motion to strike Dr. Madoff's affidavit.
b. Summary judgment. i. Standard of review. "Summary
judgment is appropriate when, viewing the evidence in the light
most favorable to the nonmoving party, all material facts have
been established and 'the moving party is entitled to a judgment
as a matter of law.'" Bernstein v. Planning Bd. of Stockbridge,
76 Mass. App. Ct. 759, 764-765 (2010), quoting Yakubowicz v.
Paramount Pictures Corp., 404 Mass. 624, 626 (1989). "We review
a grant of summary judgment de novo." Merrimack College v. KPMG
LLP, 480 Mass. 614, 619 (2018). Critically, however, "the
opposing party cannot rest on his or her pleadings and mere
assertions of disputed facts to defeat the motion for summary
judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
"[M]erely responding 'disputed' to a proposed statement of fact
does not establish a genuine dispute over a material fact.
Rather, the party opposing summary judgment must adduce
competent evidence sufficient to show a genuine issue for
trial." Jenkins v. Bakst, 95 Mass. App. Ct. 654, 660 n.9
(2019). See Rule 9A(b)(5)(iii)(A) of the Rules of the Superior
Court (party opposing summary judgment must respond by "stating
whether a given fact is disputed and, if so, cite to the
specific evidence . . . that demonstrates the dispute"). See
also Mass. R. Civ. P. 56 (e) (if nonmoving party fails to "set
14
forth specific facts showing that there is a genuine issue for
trial" in response to motion, "summary judgment . . . shall be
entered against him").
ii. Religious discrimination and undue hardship. Under
G. L. c. 151B, § 4 (1A), it is an "unlawful discriminatory
practice for an employer to impose upon an individual as a
condition of obtaining or retaining employment any terms or
conditions, compliance with which would require such individual
to violate, or forego the practice of, his creed or religion."
Employers must accommodate an employee's religious practice
unless the employer can prove that such accommodation would
"cause undue hardship in the conduct of the employer's
business." Id. Where, as the judge concluded here, the
employee makes out a prima facie case of religious
discrimination under G. L. c. 151B, § 4 (1A), "[t]he burden then
shifts to the defendant-employer to prove that accommodation of
the complainant's religious obligations would impose on the
employer an undue hardship as defined by the statute." New York
& Mass. Motor Serv., Inc. v. Massachusetts Comm'n Against
Discrimination, 401 Mass. 566, 576 (1988).
The plaintiff argues that the judge erred in concluding
that the defendants had met their burden of demonstrating an
undue hardship and, consequently, in granting the defendants'
motion for summary judgment. In reviewing a claim of undue
15
hardship, an appellate court "must inquire into the nature and
operations of the employer's business to ascertain whether any
of the conditions which might constitute undue hardship are
present."4 New York & Mass. Motor Serv., Inc., 401 Mass. at 576.
General Laws c. 151B, § 4 (1A), contains a nonexhaustive list of
circumstances that render accommodation an undue hardship,
contemplating dangers that include an undue "compromise of the
health and safety of the public." Brown v. F.L. Roberts & Co.,
452 Mass. 674, 684 (2008). This risk alone renders the
accommodation unreasonable. Compare Massachusetts Bay Transp.
Auth. v. Massachusetts Comm'n Against Discrimination, 450 Mass.
327, 337 (2008) ("If the employee's absence would unduly
compromise[] public health or safety, then accommodation is
unreasonable" [quotation and citation omitted]). Likewise, "if
the employee's presence is 'needed to alleviate an emergency
4 The focus of the undue hardship analysis is "whether the employer could have exercised its managerial discretion in such a way that the employee's religious obligations could have been reasonably accommodated." New York & Mass. Motor Serv., Inc., 401 Mass. at 576. The plaintiff did not argue below, and does not assert on appeal, that the defendants have failed in this regard. The issue has therefore not been preserved for review. Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997) ("Objections, issues, or claims . . . that have not been raised at the trial level are deemed generally to have been waived on appeal"). In any case, the defendants sufficiently established that, particularly given the nature of the department's work, vaccine alternatives like masking, testing, and teleworking could not have adequately mitigated the risks posed by COVID-19, foreclosing any reasonable accommodation of the plaintiff's request for an exemption from the vaccination requirement.
16
situation,' his absence will be considered undue hardship."
Id., quoting G. L. c. 151B, § 4 (1A).
Here, the plaintiff's responsibilities involved close, inperson interaction with families and children, including
children with health vulnerabilities, and regularly required
that the plaintiff be on call to respond to emergencies. COVID19 infection could have compromised not only the plaintiff's own
performance of these essential duties, but also given the rapid
spread of COVID-19 in close quarters and among vulnerable
populations, see Foster v. Commissioner of Correction (No. 1),
484 Mass. 698, 703 (2020), S.C., 484 Mass. 1059 (2020), and 488
Mass. 643 (2021) (describing risk of spreading COVID-19 from
staff at correctional institutions to captive inmate
population), could have triggered an outbreak among the
department's staff as well as the families and children it
serves -- a widespread and potentially dire threat to public
health and safety. Furthermore, considering that the department
was already "experiencing significant staffing shortages" at the
time the plaintiff submitted his request, such an outbreak could
have severely threatened the department's capacity to provide
necessary social services, particularly, but not exclusively, in
emergency situations. See New York & Mass. Motor Serv., Inc.,
401 Mass. at 578 (accommodation creates undue hardship where it
"would cause staffing levels to fall below the minimum level
17
needed to operate the business"). The department has met its
burden of demonstrating that these hardships fell within those
contemplated by G. L. c. 151B, § 4 (1A).
The plaintiff's response to the defendants' arguments fails
to address their undue burden argument squarely. Below and on
appeal, the plaintiff has not disputed the description of his
job duties or the consequences that COVID-19 exposure might
create for the children, families, and coworkers with whom he
engaged on a daily basis. Rather, he has maintained that the
defendants' undue hardship defense fails because it "rests
entirely on the faulty premise that the products advertised as
COVID-19 vaccines protect against infection and transmission of
COVID-19, something that the evidence shows to be in dispute."
In other words, because the plaintiff believes that the vaccine
does not actually protect against the disease, he contends that
the department would suffer no hardship if he were permitted to
perform his duties unvaccinated.
To support their motion, the defendants submitted, among
other materials, affidavits from Dr. Madoff, three officials
employed by the EOHHS, and the director of the department's area
office where the plaintiff worked, averring to the health and
safety risks posed by unvaccinated individuals, the importance
of vaccination against COVID-19 to protect the public's
uninterrupted access to critical services, and the inadequacy of
18
nonpharmaceutical interventions. Contrast Jeune v. UMass
Memorial Health Care Sys., 106 Mass. App. Ct. 95, 103 (2025)
(employer hospital failed to provide declaration from medical
expert regarding risks and efficacy of requested
accommodations). The plaintiff, however, failed to offer any
evidence in rebuttal, entitling the defendants to summary
judgment on his claim. See Community Nat'l Bank v. Dawes, 369
Mass. 550, 556-557 (1976) (summary judgment in favor of moving
party proper where moving party's pleadings and affidavit
establish absence of genuine issue of material fact, and
nonmoving party fails to present "countervailing details"). The
plaintiff has thus failed to establish any genuine issue
requiring resolution at trial. "As a result of the plaintiff's
failure in this regard, the grant of summary judgment to the
defendants was appropriate." Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991).
This conclusion aligns with the United States Court of
Appeals for the First Circuit's treatment of the issue in
similar cases. See, e.g., Melino v. Boston Med. Ctr., 127 F.4th
391, 397-398 (1st Cir. 2025) (exempting defendant from
vaccination requirement would impose undue hardship); Rodrique
v. Hearst Communications, Inc., 126 F.4th 85, 94 (1st Cir. 2025)
("there is no genuine dispute of material fact related to
[employer's] undue hardship defense" where employee's sole
19
argument is that employer "has not presented competent evidence
that vaccinated people are less likely to transmit COVID-19").
Of course, we are not bound to follow the reasoning of the
Federal courts in construing G. L. c. 151B, see Cuddyer v. Stop
& Shop Supermkt. Co., 434 Mass. 521, 536 (2001), and the
plaintiff suggests that we take this opportunity to rethink
their approach. However, like the Federal courts, the Supreme
Judicial Court has instructed that we carefully balance
litigants' constitutional rights against the serious dangers of
transmitting COVID-19. See Vazquez Diaz v. Commonwealth, 487
Mass. 336, 350 (2021) ("Protecting the public health during this
pandemic constitutes an important public policy that may be the
basis of a finding of necessity"; concluding that denial of
defendant's confrontation rights furthered important public
policy). Here, where the plaintiff has provided us with no
persuasive reason to depart from the Federal interpretations of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, and our
State law analog, G. L. c. 151B, § 4, and where such a departure
could threaten the health and wellbeing of especially vulnerable
members of our community, we decline to do so.
Judgment affirmed.