Summary
In Detwiler, the plaintiff, a practicing Christian, was exempted from her employer's Covid-19 vaccination requirement, citing “the use of cells from ‘aborted fetuses' in developing” the vaccines.
Summary of this case from Moore v. Effectual Inc.Opinion
3:22-cv-01306-JR
12-20-2022
SHERRY H. DETWILER, Plaintiff, v. MID-COLUMBIA MEDICAL CENTER, a Public Benefit Corporation; CHERI MCCALL, an individual; and DOES 1 THROUGH 50, inclusive, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Defendants Mid-Columbia Medical Center (“MCMC”) and Cheri McCall move to dismiss plaintiff Sherry Detwiler's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motion should be granted.
BACKGROUND
MCMC, a hospital located in The Dalles, Oregon, hired plaintiff on September 14, 2020, as a Privacy Officer and Director of Health Information. First Am. Compl. (“FAC”) ¶¶ 2, 11 (doc. 11). Plaintiff is “a practicing Christian who believes her body is a temple of the Holy Spirit, which she is not to defile by taking in substances that the Bible explicitly condemns or which could potentially harm her body. Id. at ¶ 18 (internal citation and quotations omitted).
“Starting in November 2020, Plaintiff worked remotely for stretches of varying lengths, none longer than ten days.” Id. at ¶ 15.
“In August 2021, at the height of the COVID-19 pandemic [Governor Brown] sought to limit the spread of the potentially deadly coronavirus in the state's healthcare facilities by issuing an executive order (the ‘Mandate') requiring healthcare workers statewide to be vaccinated against COVID-19 by October 18, 2021.” Id. at ¶ 10.
For nearly three years, “COVID-19 has presented a serious risk to the health and safety of our community, nation, and world.” Johnson v. Brown, 567 F.Supp.3d 1230, 1238 (D. Or. 2021). Oregon responded to this crisis by mandating the vaccination of workers in healthcare settings, which this District has determined is “a rational way to further the State's interest in protecting everyone's health and safety during the COVID-19 pandemic.” Johnson v. Brown, __F.Supp.3d__, 2022 WL 2439920, *5 (D. Or. July 5, 2022). These rules were promulgated by the Oregon Health Authority (“OHA”) and require that all healthcare providers and staff be fully vaccinated by October 18, 2021. Id. at *2-3. There is no dispute that OHA's definition of “healthcare providers and staff” encompassed administrative personnel such as plaintiff. Employers who approve an employee's request for a medical or religious exemption are still required to “take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.” Or. Admin. R. 333-019-1010(4); see also Defs.' Reply to Mot. Dismiss 8 n.9 (doc. 20) (OHA's “guidelines advise that employers may use periodic antigen testing to comply with the OHA rule for unvaccinated staff [and] specifically state that employers may require more measures to be taken by staff with a religious or medical exemption to protect employees and others from contracting and spreading COVID-19 in the workplace”).
On September 28, 2021, plaintiff requested a religious exemption from the OHA's vaccination requirement. Id. at ¶¶ 19-20. Among the reasons for her request, plaintiff cited the use of cells from “aborted fetuses” in developing the available COVID-19 vaccines. FAC Ex. A (doc. 11). MCMC approved plaintiff's exemption request but required her to wear an N95 mask while in the office and to submit to weekly antigen testing. FAC ¶¶ 21-22 (doc. 11).
In regard to the antigen testing, plaintiff “again invoked her Christian beliefs concerning her body being a temple of God, requesting an alternative accommodation from MCMC” based on a belief that the nasal swab used in the antigen test is “dipped in ethylene oxide,” a “carcinogenic substance” that is “cancer[ous]” and has “adverse effects on DNA profiles.” Id. at ¶¶ 23-25. Plaintiff further explained:
It is against my faith and my conscience to commit sin. Sin is anything that violates the will of God, as set forth in the Bible, and as impressed upon the heart of the believer by the Holy Spirit. In order to keep myself from sin, and receive God's direction in my life, I pray and ask God for wisdom and direction daily. As part of my prayers, I have asked God for direction regarding the current COVID testing requirement. As I have prayed about what I should do, the Holy Spirit has moved on my heart and conscience that I must not participate in COVID testing that causes harm. If I were to go against the moving of the Holy Spirit, I would be sinning and jeopardizing my relationship with God and violating my conscience.FAC Ex. C (doc. 11). Accordingly, plaintiff proposed that she be permitted to work remotely full time and submit to saliva testing through Oregon Health & Science University (i.e., NAAT testing). FAC ¶ 26 (doc. 11).
“While the Hospital was ‘considering' Plaintiff's proposed accommodations, the deadline for compliance with Gov. Brown's Mandate - October 18, 2021 - came and went. As a result, MCMC placed Plaintiff on unpaid leave on October 19, 2021.” Id. at ¶ 27.
MCMC ultimately denied plaintiff's alternate accommodation requests. Id. at ¶¶ 28-29. As to plaintiff's request for full-time remote work, MCMC noted that plaintiff's team struggled under her supervision even when she was only intermittently working remote, citing “increased complaints and dissatisfaction from your team since you started to work remote.” FAC Ex. D (doc. 11). Concerning plaintiff's proposal that she submit to saliva testing only, “MCMC deemed [saliva testing] ‘impractical' because test results would not be available for 24 to 36 hours, and the Hospital claimed that it needed Plaintiff to be available on occasion for same-day reporting.” FAC ¶ 28 (doc. 11).
MCMC gave plaintiff until December 20, 2021, to agree to antigen testing or accept reassignment to another open position. Id. at ¶ 39. “When Plaintiff did neither, MCMC terminated her employment.” Id. at ¶ 40. MCMC subsequently hired an interim Director of Health Information, who is allowed “to work parttime . . . 100% remotely.” Id. at ¶ 40.
On August 31, 2022, plaintiff initiated this lawsuit. On November 4, 2022, plaintiff lodged her FAC asserting claims for: (1) religious discrimination against MCMC under Title VII and Or. Rev. Stat. § 659A.030(1)(a); and (2) aiding and abetting against McCall under Or. Rev. Stat. § 659A.030(1)(g). On November 18, 2022, defendants filed the present motion to dismiss. Briefing was completed in regard to defendant's motion on December 15, 2022.
STANDARD OF REVIEW
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Defendants contend dismissal with prejudice is warranted because the FAC fails to allege “that plaintiff was treated differently from any other employee due to her religion” or “the kind of bona fide religious belief that gives rise to a cause of action under Title VII or Oregon law.” Def.'s Mot. Dismiss 7 (doc. 14).
I. Religious Discrimination Claims
Plaintiff asserts that “MCMC subjected [her] to discriminatory treatment [by requiring, as a condition of continued employment, that she] either receive a COVID-19 vaccine or, in the alternative, submit to nasal swab testing.” FAC ¶¶ 56, 66 (doc. 11).
Or. Rev. Stat. § 659A.030(1)(a) and Title VII, both make it unlawful for an employer to discriminate against an individual in the terms and conditions of employment because of religion. “Claims brought under this statute are analyzed under the same framework as claims brought under Title VII.” El v. United Parcel Serv., Inc., 2020 WL 2616397, *3 (D. Or. May 22, 2020).
To establish a prima facie case for religious discrimination based on a failure-to-accommodate, the plaintiff must demonstrate that: (1) she “had a bona fide religious belief, the practice of which conflicted 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.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). Where an employee requests an alternate accommodation, she must plead sufficient facts to evince the need for that accommodation also stems from a bona fide religious belief. Cf. Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 682 (9th Cir. 1998). If the plaintiff “makes out a prima facie failure-to-accommodate case, the burden then shifts to [the defendant] to show that it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship.” Peterson, 358 F.3d at 606 (citations and internal quotations omitted).
The Court construes plaintiff's religious discrimination claims as emanating from defendants' denial of her accommodation request, as opposed to the granting of her religious exemption with conditions. Indeed, courts have routinely held that allowing hospital staff to be present without vaccination poses an undue hardship. See, e.g., Brox v. Hole, 590 F.Supp.3d 359, 367 (D. Mass. 2022).
Concerning the first element, Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” Tiano, 139 F.3d at 681 (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).
Defendants argue that the three factors articulated in Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981), govern whether a belief is religious in nature. Plaintiff asserts that these criteria are irrelevant and have not been sanctioned by the Ninth Circuit. Pl.'s Resp. to Mot. Dismiss 7, 13-14 (doc. 17). Yet, as this District has expressly acknowledged, courts routinely “appl[y] the criteria identified in Africa [as] adopted by the Ninth Circuit in Alvarado v. City of San Jose, 94 F.3d 1223, 1229-30 (9th Cir.1996)[,] in determining whether a set of beliefs is religious” for the purposes of First Amendment claims. Birkes v. Mills, 2011 WL 5117859, *3 (D. Or. Sept. 28, 2011), adopted by 2012 WL 930243 (D. Or. Mar. 19, 2012). Nevertheless, Title VII “is a much broader standard than that employed in the context of the First Amendment.” Id.; see also Prentice v. Nev. Dep't Corr., 2010 WL 4181456, *4 n.4 (D. Nev. Oct. 19, 2010) (recognizing a different standard applied to Title VII and First Amendment claims); but see Fallon v. Mercy Catholic Med. Cnt. of S.E. Pa., 877 F.3d 487, 492 (3d. Cir. 2017) (analyzing a Title VII claim under the Africa factors). Thus, while the Africa factors certainly have been endorsed within the Ninth Circuit and provide helpful guideposts, they are not dispositive to this Court's Title VII analysis.
Plaintiff's attempt to distinguish Finkbeiner on the basis that it did not concern prayer are unavailing. In particular, plaintiff asserts “that personal, unique convictions arrived at through prayer are a hallmark of the Christian religion,” such that any further inquiry into her convictions are inappropriate. Pl.'s Resp. to Mot. Dismiss 13-16 (doc. 17); see also id. at 11 (denoting that “her sincerely held religious beliefs inform all of her actions, including actions that may appear, at face value, nonreligious in nature, including researching ethylene oxide and carcinogens”). Although she couches it in religious terms, the complaint makes clear that plaintiff's request for alternate accommodations stems from her belief that nasal swab testing contains hazardous materials. Yet this is a secular, non-religious belief. And no amount of prayer can transform that belief into a religious one - to hold as much “would amount to a blanket privilege and a limitless excuse for avoiding all unwanted obligations.” Finkbeiner, 2022 WL 3702004 at *4 (citation and internal quotations and brackets omitted); see also Geerlings v. Tredyffrin/Easttown Sch. Dist., 2021 WL 4399672, *7 (E.D. Pa. Sept. 27, 2021) (“[r]eligious adherents often profess that faith inspires much of their secular lives, but those activities are still secular”); Tiano, 139 F.3d at 682 (allowing the plaintiff to go forward with a Title VII claim without first showing that the invoked belief is a bona fide religious belief is clearly erroneous - “[o]therwise, the employer is forced to accommodate the personal preferences of the employee”).
Specific 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. Dist., 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.
Plaintiff's allegations - which center on her belief that COVID-19 antigen tests are carcinogenic - fail to establish sincere religious opposition under this framework. See Finkbeiner v. Geisinger Clinic, ___ F.Supp.3d ___, 2022 WL 3702004, *4 (M.D. Pa. Aug. 26, 2022) (granting the defendant's Rule 12(b)(6) motion where the plaintiff asserted a religious objection to antigen testing on the grounds that ethylene oxide is harmful, explaining that her “opposition stems from her medical beliefs”).
In fact, courts have been reluctant, in a variety of contexts, to recognize analogous beliefs as religious in nature. See Fallon, 877 F.3d at 492 (dismissing a Title VII claim based on a religious objection to the flu vaccine that was derived from the secular/medical belief that a vaccine “may do more harm than good”); Brox, 590 F.Supp.3d at 366 (“the record suggests that plaintiffs' opposition to receiving the COVID-19 vaccine” - i.e., that God has instilled them with adequate immune systems and a corresponding preference for natural remedies - “is based primarily on philosophical, medical, or scientific beliefs, or personal fears or anxieties rather than bona fide religious practices”) (citation and internal quotations omitted); Mason, 851 F.2d at 51-52 (rejecting parents' religious objection to the school's vaccination policy on the grounds that their cited belief in the body's ability to self-heal were scientific and/or secular); Geerlings, 2021 WL 4399672 at *7-8 (rejecting the plaintiff's religious objection to wearing masks as harmful to the body, stating “it takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious”).
In sum, MCMC granted plaintiff a religious exemption to OHA's COVID-19 vaccination requirement and plaintiff has otherwise not alleged any plausible facts demonstrating that her objection to antigen testing stemmed from a bona fide religious belief. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (“where the employer has already reasonably accommodated the employee's religious needs, the [Title VII] statutory inquiry is at an end”). Defendants' motion should be granted as to plaintiff's religious discrimination claims.
II. Aiding and Abetting Claim
Plaintiff asserts that McCall “acted in concert with, or gave substantial assistance to, MCMC to unlawfully discriminate against Plaintiff on account of Plaintiff's religion.” FAC ¶ 75 (doc. 11).
Or. Rev. Stat. § 659A.030(1)(g) provides, in relevant part, that it is an unlawful employment practice for “any person, whether an employer or an employee, to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” However, the plaintiff must first establish a violation of the underlying Chapter 659A laws to bring a cognizable aiding and abetting claim. Dinicola v. Serv. Emp. Int'l Union, 2011 WL 3477074, *7-8 (D. Or. Aug. 5, 2011).
As addressed in Section I, plaintiff has failed to allege sufficient facts to state a plausible religious discrimination claim. Defendants' motion should therefore be granted as to plaintiff's claim under Or. Rev. Stat. § 659A.030(1)(g). By extension, dismissal of any purported cause of action against the ill-defined 50 Doe defendants is also appropriate.
Despite the FAC's deficiencies, the Court declines to dismiss plaintiff's complaint with prejudice. Plaintiff has not yet had opportunity to address these pleading deficiencies and the Court cannot conclude, at least at this stage in the proceedings, that they are incurable as a matter of law.
However, to the extent plaintiff moves to amend via her response brief, her request is procedurally improper. Pl.'s Resp. to Mot. Dismiss 17-18 (doc. 17); see also LR 7-1(b) (“[m]otions may not be combined with any response, reply, or other pleading”).
RECOMMENDATION
For the reasons stated herein, defendants' Motion to Dismiss (doc. 14) should be granted. The parties' requests for oral argument are denied as unnecessary. Any motion to amend the complaint must conform with this Findings and Recommendation, and be filed within 30 days of the District Judge's order.
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.