Opinion
3:23-cv-00826-JR
02-08-2024
LAURA DENTON, an individual, Plaintiff, v. SHRINERS HOSPITAL FOR CHILDREN, a corporation, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge.
Plaintiff, Laura Denton, brings this action alleging employment discrimination. Before the Court is defendant Shriner's Hospital for Children's motion to dismiss. For the reasons stated below, the motion is granted.
Defendant asks the Court to consider documents outside the complaint such as documents regarding the use of fetal cell lines in vaccines and medications, FDA news releases, etc. “Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Nonetheless, a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment. Fed.R.Evid. 201. However, a court cannot take judicial notice of disputed facts contained in such public records. Id. at 999.
Plaintiff alleges defendant employed her for six years as a registered nurse and that she worked directly with patients, caring for post-operative patients and patients that required infusions for their condition. Complaint (ECF 1) at ¶ 5. Plaintiff asserts she received consistently positive feedback from her supervisor, coworkers, patients, and their families. Id.
Plaintiff alleges she is “a devoutly religious individual who adheres to principles of a Christian faith and is dedicated to following the tenets of her faith to the best of her ability.” Id. at ¶ 6. Plaintiff asserts that until the COVID-19 pandemic, her faith had not caused a conflict with her work requirements. Id. at ¶ 7.
Plaintiff alleges that despite the risks posed by COVID-19 to her own health as a nurse, she continued to provide exceptional work, adjusting her life to best ensure the safety of her patients and coworkers. Id. at ¶¶ 8-9. Plaintiff alleges:
For eighteen months, Plaintiff scrupulously followed clinic rules and regulations to protect against infection, which included the wearing of personal protective equipment (herein, “PPE”), hand-washing and other hygiene protocols, social distancing when possible, and quarantining when necessary.Id. at ¶ 10.
Plaintiff avers, in Summer 2021, defendant announced a COVID-19 vaccine mandate but noted that those individuals with religious beliefs in conflict with the vaccine and/or to taking the vaccine could apply for religious exceptions. Id. at ¶ 11. Plaintiff alleges:
As a devout Christian, Plaintiff had serious objections to taking the vaccine because any of the available vaccines had been tested or produced on aborted fetal cell lines.
On or about September 30, 2021, Plaintiff filed the formal paperwork for a religious exception and anticipated it would be granted.Id.
Plaintiff asserts however that defendant denied her religious exemption request and terminated her employment on October 18, 2021. Id. at ¶ 12. Plaintiff, who is Hispanic, alleges during the appeals process she did not receive the same level of assistance from Human Resources who suggested to a Caucasian nurse who did not want to take the vaccine to seek a medical exemption and claim she was trying to get pregnant. Id. Plaintiff alleges she:
attempted to negotiate with the Defendant to find a workable solution to her religious exemption from the vaccine, but Defendant's only response was to state that unvaccinated employees could not be around patients, coworkers, or enter the facilities.Id. at ¶ 14. Plaintiff further asserts:
Defendant has yet to explain why, in its view, after more than a year of being able to work without incident during the pandemic, Plaintiff's unvaccinated status suddenly created an unacceptable health and safety risk necessitating her termination,Id. at ¶ 18.
Plaintiff alleges her termination was not to protect against an unacceptable health and safety risk but was the result of discriminatory actions by defendant based on her sincerely held religious beliefs and retaliation for expressing those beliefs. Id. at ¶ 19. Plaintiff contends defendant failed to pursue any reasonable accommodations. Id. As a result, plaintiff alleges she suffered economic loss and emotional distress. Id. at 20.
Plaintiff alleges claims for unlawful employment discrimination based on religion pursuant to Or. Rev. Stat. § 659A.030 and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Defendant moves to dismiss all claims.
DISCUSSION
Defendant asserts plaintiff fails to allege sufficient factual content to establish a plausible claim for religious discrimination.
To properly plead a religious discrimination claim, plaintiff must allege: (1) she had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected her to an adverse employment action because of her inability to fulfill the job requirement. Heller v. EBB Auto. Co., 8 F.3d 1433, 1438 (9th Cir.1993). Defendant contends plaintiff fails to allege she had a sincerely held religious belief that conflicted with defendant's vaccination requirement.
Oregon's anti-discrimination statutes are analyzed under the same framework as claims bought under Title VII. El v. United Parcel Serv., Inc., 2020 WL 2616397, at *3 (D. Or. May 22, 2020).
Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998) (quoting 42 U.S.C. § 2000e-2(a)(1)). Nevertheless, “Title VII does not protect secular preferences.” Id. at 682; see also Mason v. Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 51 (2d Cir. 1988) (“[a]n individual's assertion that the belief [is religious does not] automatically mean that the belief is religious . . . a threshold inquiry into the religious aspect of particular beliefs and practices cannot be avoided if we are to determine what is in fact based on religious belief, and what is based on secular or scientific principles”) (collecting cases).
With respect to COVID vaccination mandates, the U.S. Equal Employment Opportunity Commission (“EEOC”) has provided guidance to employers navigating claimed religious exemptions, explaining that, “although Title VII prohibits employment discrimination based on religion, an employee's request for an exemption from a COVID-19 vaccination mandate can be denied on the ground that the employee's belief is not truly religious in nature[.]'” Doe v. San Diego Unified Sch. Di st., 19 F.4th 1173, 1180 (9th Cir. 2021). The EEOC's guidance notes objections to the COVID-19 vaccine that “are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine)” are not protected by Title VII. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Oct. 25, 2021), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L. “However, overlap between a religious and political view does not place it outside the scope of Title VII's religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.” Id.
As noted above, plaintiff alleges “As a devout Christian, Plaintiff had serious objections to taking the vaccine because any of the available vaccines had been tested or produced on aborted fetal cell lines.” Complaint (ECF 1) at ¶ 11.
As Judge Stacie Beckerman of this Court noted:
Courts have found similar anti-vaccination beliefs sufficient at the motion to dismiss stage. For example, in Kather, a judge from this district denied the defendant's motion to dismiss certain plaintiffs' religious discrimination claims under Title VII, noting that one plaintiff “cite[d] opposition to injecting into his body anything that ‘originate[d] from fetal cell lines' ” and it could “be inferred that [this plaintiff's] belief in God inform[ed] his opposition to receiving a vaccine he allege[d] originate[d] from the use of fetal cells,” and that one plaintiff cited her “ ‘Christianity' and resistance to receiving a vaccine developed with fetal cell lines[, which was] another reasonably inferred religious conflict.” 2023 WL 4865533, at *4 (citations omitted).Stephens v. Legacy-GoHealth Urgent Care, 2023 WL 7612395, at *6 (D. Or. Oct. 23, 2023), report and recommendation adopted sub nom. Stephens v. Legacy Health, 2023 WL 7623865 (D. Or. Nov. 14, 2023). Indeed, this Court has determined invocation of an anti-abortion stance, guidance from spiritual leaders, and the use of fetal cells in developing Covid-19 vaccines appropriately alleged a bona fide religious belief. Quinn v. Legacy Health, Case No. 3:23-cv-00331-JR (D. Or. June 16, 2023) (ECF 15) at p. 10, see also Keene v. City & Cnty. of S.F., 2023 WL 3451687, *2-3 (9th Cir. May 15, 2023) (reversing the district court's denial of a preliminary injunction premised on a Title VII claim where the plaintiffs - i.e., “Christians who believe in the sanctity of life” - cited the use of fetal cell lines in requesting a religious exception, denoting “the resolution of [whether a belief is religious] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit [protection]”).
However, while religious beliefs regarding abortion, use of aborted fetal cell lines, and the belief in the sanctity of life may suffice to plausibly allege a conflict between a sincerely held religious belief and a given vaccine requirement, plaintiff's complaint does nothing more than plead a conclusory objection to use of aborted fetal cell lines. The complaint does not identify the specific religious belief violated by the vaccine requirement and does not allege she informed defendant of such specific beliefs in seeking the exemption. See Quinn v. Legacy Health, Case No. 3:23-cv-00331-JR (D. Or. June 16, 2023 ECF 15) at p. 2-3 (plaintiff alleges religious exemption request provided detailed specification regarding religious beliefs, from where those beliefs emanated, and how the COVID vaccine violated those beliefs citing Christian scholars). Courts are not required to “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Bolden-Hardge v. Office of the Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023). Accordingly, plaintiff's religious discrimination claims are dismissed. However, it is not clear whether the pleading deficiency can be cured by amendment. Therefore, the motion to dismiss is granted without prejudice and plaintiff is allowed to seek leave to amend.
To the extent defendant argues that plaintiff's religious objections based on use of aborted fetal cell lines fail because there exist COVID vaccines far removed from such cell lines and some vaccines that use no such derivation at all is more appropriately addressed as a disputed factual issue for a trier of fact rather than a pleading issue as a matter of law.
Defendant also seeks dismissal asserting it could not reasonably accommodate plaintiff's request without undue hardship. If the employee proves a prima facie case of discrimination, the burden shifts to the employer to show either that it initiated good faith efforts to reasonably accommodate the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship. Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998).
An undue burden exists if the proposed accommodation would impose more than a de minimis burden on the employer. Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977). In examining undue hardship, courts evaluate both economic and non-economic costs. Webb v. Philadelphia, 562 F.3d 256, 260 (3d Cir. 2009). “Undue hardship can also exist if the proposed accommodation would either cause or increase safety risks or the risk of legal liability for the employer.” Robinson v. Children's Hosp. Boston, 2016 WL 1337255, *8 (D. Mass. Apr. 5, 2016) (citation and internal quotations omitted). “Undue hardship is an affirmative defense ... and accordingly dismissal on that ground is proper only if the defendant shows some obvious bar to securing relief on the face of the complaint or in any judicially noticeable materials.” Bolden-Hardge, 63 F.4th at 1224 (9th Cir. 2023) (citations and internal quotations omitted).
Defendant notes the Oregon Administrative Rules required it to take reasonable steps in protecting against the spread of COVID-19 when granting religious exemptions. OAR 333-0191010(4). Defendant further argues that at the time, its pediatric patients could not themselves be vaccinated and thus exposing them to direct contact with plaintiff would have required them to violate the requirement to protect them from contracting COVID-19. It is unclear from the allegations in the complaint, however, whether a reasonable accommodation was available or even if defendant initiated any good faith efforts to accommodate.
An employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Groff v. DeJoy, 600 U.S. 447, 470 (2023). Title VII requires that an employer reasonably accommodate an employee's practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. Id. at 473.
Generally affirmative defenses may not be raised on a motion to dismiss except when the defense raises no disputed issues of fact. Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1194 n.6 (9th Cir. 2018); see also U.S. Commodity Futures Trading Comm'n v. Monex Credit Co., 931 F.3d 966, 973 (9th Cir. 2019) (quoting Lusnak). In Monex, the Ninth Circuit added that “we can consider an affirmative defense on a motion to dismiss when there is some obvious bar to securing relief on the face of the complaint.” Id. (quotation marks omitted). “In other words, dismissal based on an affirmative defense is permitted when the complaint establishes the defense.” Id. While defendant raises convincing arguments that allowing patients to have close interactions with employees who are not vaccinated creates a substantial burden, the Court cannot draw that conclusion simply from the four corners of the complaint or judicially noticed documents. Such issues are better reserved for a trier of fact after the parties have had chance to engage in discovery and build a record regarding the reasonableness of any accommodation of plaintiff's religious beliefs. Nonetheless, as noted above, plaintiff has failed to adequately plead a prima facie case and the motion to dismiss is granted, without prejudice, on that ground.
CONCLUSION
Defendant Shriners Hospital's motion to dismiss (ECF 5) should be granted without prejudice and plaintiff should be allowed to seek leave to amend.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.