Opinion
3:23-cv-00331-JR
06-16-2023
CANDACE QUINN, an individual; TAMARA L. DOBSON COTTON, an individual; and CAMILLE D. HARRIS, an individual, Plaintiffs, v. LEGACY HEALTH, a public benefit corporation; and DOES 1 THROUGH 50, inclusive, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Defendant Legacy Health (“Legacy”) moves to dismiss plaintiffs Candace Quinn, Tamara Cotton, and Camille Harris's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Legacy's motion should be granted in part and denied in part.
BACKGROUND
Legacy, a non-profit organization located in Portland, Oregon, hired plaintiffs to provide direct patient care at various healthcare facilities. This case centers on Legacy's denial of each plaintiff's religious exception request surrounding the Covid-19 vaccine.
In August 2021, at the height of the pandemic, Governor Brown sought to limit the spread of the potentially deadly coronavirus in the state's healthcare facilities by issuing an executive order requiring healthcare workers to be vaccinated against Covid-19 by October 18, 2021. Johnson v. Brown, 567 F.Supp.3d 1230, 1238 (D. Or. 2021); see also Johnson v. Brown, 614 F.Supp.3d 776, 782 (D. Or. 2022) (“[t]he decision to require vaccination among critical populations, such as healthcare workers and providers and education workers and volunteers, is a rational way to further the State's interest in protecting everyone's health and safety during the COVID-19 pandemic”). The rules effectuating Governor Brown's vaccine mandate were promulgated by the Oregon Health Authority (“OHA”). “In accordance with the OHA's Mandate, LEGACY required all of its employees to be vaccinated against COVID-19 by September 30, 2021 [but for] religious exemptions. Any employee who sought one had to fill out and submit a form provided by LEGACY and submit along with the form a letter from a religious authority in the employee's faith community explaining, on the religious authority's letterhead, ‘how administration of the COVID-19 vaccine conflicts with bona fide religious tenets or practices of the employee's faith.' LEGACY also permitted employees who had no religious authority to provide a letter on their own behalf explaining their religious objection [to the] COVID-19 vaccine.” Compl. ¶¶ 11-13 (doc. 1).
I. Plaintiff Quinn
Quinn is “a practicing Christian who worked as a registered nurse in the endoscopy department at LEGACY's Mount Hood Medical Center . . . She also worked as a charge nurse, timekeeper, unit scheduler, and preceptor and trained new employees.” Compl. ¶ 14 (doc. 1). Additionally, Quinn “supplemented her income by working 100 percent remotely as a Clinical Charge Capture Analyst for LEGACY.” Id. at ¶ 16.
On August 26, 2021, Quinn filed out a religious exception form and attached a letter stating, in relevant part:
Primarily, my beliefs regarding the sanctity of human life conflict directing with any requirement to inject abortion-tainted vaccinations into my body. The Bible teaches me about sanctity of life, specifically that life begins at conception and that I must not endorse the killing of human life by anything I participate in (Proverbs 6:16-17). It is my understanding that all of the available COVID vaccines contain
cell lines, or utilize cell lines, derived from aborted human beings in either the manufacture or testing of the vaccine . . .
The use of abortion tainted vaccines conflicts with longstanding and well recognized anti-abortion religious teaching. As one Christian scholar has stated, “when we use vaccines or medicines which utilize cell lines originating from aborted babies, we physically benefit from the ‘fruits' of one of the greatest evils of mankind - the cruel genocide of the unborn[.] As Christians, it is our duty to bear witness to the world by not accepting these vaccines and medicines” . . . It is my sincere belief that for me to benefit from the murder of innocent human life is immoral and a sin ....
As a living temple, I believe that I must protect my body, and keep it holy, and that I must not put any harmful substances into my body, nor take any action that unnecessarily risks my health ....
Finally, whereas none of the currently available COVID vaccines produces a “sterilizing immunity,” meaning that vaccinated individuals can (and do) still spread COVID, failure to accommodate my request for exemption and accommodations serves no legitimate purpose . . . I have made an effort to inform myself of the risks and benefits of receiving a COVID vaccine [and] have learned [they] carry [significant] risks [including that they] have not been subjected to years of rigorous research and testing . . .Compl. Ex. C (doc. 1).
II. Plaintiff Cotton
Cotton is “a practicing non-denominational Christian who worked as a respiratory care practitioner at LEGACY's Meridian Park Medical Center . . . Her job involved providing care to patients who were having trouble breathing and included such duties as interviewing patients, conducting tests, and treating respiratory and cardiopulmonary conditions.” Compl. ¶ 17 (doc. 1). Cotton also “supplemented her income by picking up ‘screener shifts' in which she asked those entering Meridian Park whether they had any COVID-19 symptoms.” Id. at ¶ 18.
On August 29, 2021, Cotton requested a religious exemption as follows:
Approximately two-thousand years ago, Jesus tore the veil. Therefore, I do not need a religious authority other than God. The Bible makes it clear that my body is a temple. Taking this new vaccine/experimental gene therapy/gateway to the Mark of the Beast would grieve my Lord and my soul. This evil, satanic situation that my
coworkers and I have been placed in, mandatory vaccines, has caused me spiritual, emotional, psychological, and physical distress which I have currently being treated for.Compl. Ex. D (doc. 1).
III. Plaintiff Harris
Harris is “a practicing Christian who worked as an operating room nurse in the surgical services department at Meridian Park.” Compl. ¶ 19 (doc. 1). On September 22, 2021, Harris sought a religious exemption because, “as a Christian I sincerely believe my body is a temple and it is my God given responsibility and requirement for me to protect the physical integrity of my body.” Compl. Ex. E (doc. 1).
IV. Legacy's Denials and Terminations
During the end of September or beginning of October 2021, Legacy denied plaintiffs' religious exception requests:
The exception work group, which includes staff from Spiritual Care, Ethics, Primary Care, and Infection Prevention and Control, believes there is no ideal way to determine a sincerely held religious belief and decided to use the following criteria:
• Consistency (have you recently received vaccines)
• Specificity (your religious belief is clearly stated, and that religious belief is specifically against receiving the COVID-19 vaccine)
Your request was carefully reviewed and your request for religious exception was denied because the information your provided does not meet one or more of the above criteria . . .
Because your exception was denied, you have three options:
1. Take action to keep your job by getting vaccinated as soon as possible[.]
2. Take no action and be placed on administrative leave on Oct. 1, with termination following as soon as Oct. 19.
3. Resign your positions by alerting your manager in writing.Compl. Exs. F-H (doc. 1) (emphasis removed).
“Because they could not, in good conscience, receive COVID-19 vaccines, and given the substantial likelihood that they would be unable to obtain unemployment benefits if they resigned from their respective positions, Plaintiffs reluctantly, and under protest, chose the second option. As a result, LEGACY placed them on administrative leave and subsequently fired them.” Compl. ¶ 35 (doc. 1).
V. Proceedings Before This Court
On March 8, 2023, plaintiffs initiated this lawsuit asserting claims for: (1) religious discrimination against Legacy under Title VII and Or. Rev. Stat. § 659A.030(1)(a); and (2) aiding and abetting against Does 1 through 50 under Or. Rev. Stat. § 659A.030(1)(g). On May 8, 2023, Legacy filed the present motion to dismiss. Briefing was completed in regard to that motion on June 12, 2023.
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
Legacy contends dismissal with prejudice is warranted “because (1) Plaintiffs have failed to plead facts sufficient to show that they had religious beliefs that conflicted with [its] vaccination policy; and (2) regardless of whether Plaintiffs could plead a prima facie case (and they cannot), Legacy could not, as a matter of law, reasonably accommodate Plaintiffs without undue hardship.” Def.'s Mot. Dismiss 7 (doc. 7).
Concerning the latter, Legacy cites the Rule 12(b)(6) oral argument transcript from Brown v. Nw. Permanente (Case No. 3:22-cv-00986-SI), allegations in the complaint demonstrating plaintiffs provided “direct care to medically vulnerable patients” and that “nearly 800” other employees sought religious exceptions, and Or. Admin. R. 333-019-1010(4), which required employers who approve medical or religious exemption requests to “take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.” Id. at 12-16; Def.'s Reply to Mot. Dismiss 6-7 (doc. 13). And, based on these sources, Legacy essentially maintains that religious discrimination claims are categorically barred in this context. See Def.'s Reply to Mot. Dismiss 7 n.4 (doc. 13) (“since the ability of the COVID-19 vaccines to prevent or reduce - to any degree - transmissibility, severe illness, and death in patients and fellow employees means that any proposed accommodation permitting Plaintiffs to continue working unvaccinated would have decreased the safety of Legacy's operations, which is more than a de minimis cost”).
As Legacy acknowledges, the rules surrounding vaccine mandates in regard to healthcare workers have been suspended. Def.'s Reply to Mot. Dismiss 6 n.2 (doc. 13). Via its reply brief, Legacy also requests judicial notice of two Center for Disease Control & Prevention (“CDC”) publications. The first, from July 2021, shows a significant reduction in disease incidence, hospitalization, death, and transmission for fully vaccinated individuals, but acknowledged that emerging variants changed these calculations. Healy Decl. Ex. 3, at 3, 7, 22 (doc. 14-3). The second publication shows Oregon trends in Covid-19 hospitalizations and death from the beginning of the pandemic through May 2023. Healy Decl. Ex. 4, at 2-3 (doc. 14-4). Aside from the fact that the Court need not consider new arguments first raised in a reply brief, it is questionable whether these publications are the proper subjects of judicial notice. Cf. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[w]here new evidence is presented in a reply . . . the district court should not consider the new evidence without giving the [non]movant an opportunity to respond”); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1001 (9th Cir. 2018) (declining to take judicial notice of a report where the “report alone, does not establish” the fact for which it was introduced). That is, the CDC's data shows that vaccination did little to blunt transmission of the variant circulating at the time of OHA's vaccine mandate. See Healy Decl. Ex. 3, at 17 (doc. 14-3) (“Delta variant vaccine breakthrough cases may be as transmissible as unvaccinated cases”).
I. Religious Discrimination Claims
Plaintiffs allege Legacy discriminated against them by placing them on leave and terminating their employment, and/or refusing to accommodate their sincerely held “religious belief against taking COVID-19 vaccines.” Compl. ¶¶ 40-63 (doc. 1).
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 [Oregon] 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). 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.” Id. (citations and internal quotations omitted).
The Court construes plaintiffs' religious discrimination claims as emanating from Legacy's refusal to “attempt to accommodate [their] sincerely held religious beliefs,” as opposed to the mere imposition of the vaccine mandate itself. Compl. ¶ 51 (doc. 1). 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).
A. Prima Facie Case
Concerning the first element, 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).
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. SanDiego 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.
Cotton and Harris' allegations - which center on their beliefs that their bodies are temples (and, in Cotton's case, that the Covid-19 vaccine is “experimental”) - fail to establish religious opposition under this framework. See Passarella v. Aspirus, Inc., 2023 WL 2455681, *5-6 (W.D. Wis. Mar. 10, 2023) (dismissing Title VII claims where the plaintiffs sought religious exemptions on the basis “that [their bodies were each] a temple of the Holy Spirit,” concluding these are “personal judgments about vaccine safety and not . . . religious reasons . . . the use of religious vocabulary does not elevate a personal medical judgment to a matter of protected religion”); 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 selfheal were scientific and/or secular); see also Geerlings v. Tredyffrin/Easttown Sch. Dist., 2021 WL 4399672, *7-8 (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 . . . it takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious”).
Plaintiffs assert that, “in religious discrimination cases brought under Title VII, courts should not penalize plaintiffs who fail to articulate their religious beliefs with perfect clarity and precision.” Pls.' Resp. to Mot. Dismiss 18 (doc. 10). Yet the case law cited by plaintiff merely stands for the general proposition that courts “do not interrogate the reasonableness of [the plaintiff's] beliefs and instead focus our inquiry on whether she has alleged an actual conflict.” Bolden-Hardge v.Office of the Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023). Even so, courts are not required to “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Id.; see also Rogers v. Neb. Urb. Indian Health Coal., Inc., 2023 WL 2990720, *5 (D. Neb. Apr. 18, 2023) (granting the defendant's 12(b)(6) motion as to a Title VII claim where the plaintiff “does not articulate or describe any particular beliefs that she maintains [or] provide even a perfunctory explanation as to how her beliefs conflict with receiving a COVID-19 vaccine”). Here, unlike the complaint in Bolden-Hardge, Cotton and Harris' have not identified any bona fide religious observance, practice, or belief (as opposed to a secular or medical belief that is couched in religious terms) that conflicts with Legacy's vaccine mandate under well-established case law. In fact, plaintiffs' counsel has not cited to a single case upholding the broad religious rationales cited by Cotton and Harris as sufficient to state a claim in this context. See Pls.' Resp. to Mot. Dismiss 22 (doc. 10) (citing only to Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981), which held that, under the First Amendment, a parent's objection to social security numbers as the “the mark of the beast” and his related refusal to obtain a number for his daughter was religious in nature given he was a member of the Baptist Church, his ascription of diabolical status to social security numbers was derived from the New Testament's Book of Revelation, and his interpretation of the subject passage addressed spiritual and not merely worldly concerns).
However, the same is not true for Quinn, who invoked her anti-abortion stance, guidance from spiritual leaders, and the use of fetal cells in developing Covid-19 vaccines. See 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]”) (citation and internal quotations omitted); see also Ventresca-Cohen v. DiFiore, __ A.D.3d __, 177 N.Y.S.3d 853, 862-66 (2022) (upholding the employer's denial of religious exemption requests to the Covid-19 vaccine that were based on “the sanctity of the human body” or “faith in . . . natural God-given immunity - describing these as “a personal choice, made by a religious individual” - but finding the denial of exemption requests arbitrary and capricious where the employees cited religious beliefs concerning abortion).
Legacy attempts to distinguish this case on the basis that the Keene plaintiffs “alleged that they could not receive COVID-19 vaccines, which were purportedly derived from murdered children, without violating their religious beliefs,” whereas Quinn has merely invoked her “moral duty to refuse certain vaccines created using human cell lines derived from abortion during any stage of the vaccine's development.” Def.'s Reply to Mot. Dismiss 5 (doc. 13) (internal quotations, brackets, and ellipses omitted). In so arguing, Legacy minimizes the actual content of Quinn's religious exception request. While Quinn certainly relied on medical and/or secular beliefs surrounding the safety of the Covid-19 vaccine and the sanctity of her body, she also explicitly identified her belief that abortion is “one of the greatest evils of mankind [akin to] genocide of the unborn,” which Keene expressly recognized as religious in nature. Compl. Ex. C (doc. 1).
B. Undue Burden
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 (citations and internal quotations omitted).
Initially, Legacy has not identified any factually analogous authority. See, e.g., Def.'s Mot. Dismiss 14-15 (doc. 7); Def.'s Reply to Mot. Dismiss 7-8 (doc. 13). Virtually all of the cited precedent pertained to summary judgment or preliminary injunction proceedings, pursuant to which the district court was freely permitted to consider evidence outside the pleadings (and, in regard to the latter, the plaintiff's likelihood of success on the merits). And, significantly, none of these cases dismissed religious discrimination claims based solely on the employer's undue hardship. Indeed, the sole case cited by Legacy surrounding a Rule 12(b)(6) motion - i.e., Beuca v. Wash. State Univ., 2023 WL 3575503 (E.D. Wash. May 19, 2023) - held that the plaintiff failed to adequately plead multiple elements of his prima facie case before reaching undue burden as an additional ground for dismissal. Id. at *2-3; see also Does 1-2 v. Hochul, 2022 WL 4637843, *15-16, __ F.Supp.3d __ (E.D. N.Y. Sept. 30, 2022) (finding that the plaintiffs failed to exhaust their administrative remedies before reaching undue burden as an alternate basis for dismissal under Rule 12(b)(6)).
Moreover, Legacy's reliance on case law wherein the requested accommodation - i.e., allowing the plaintiff to continue working unvaccinated - would require the employer to violate state or federal law is misplaced. Aside from the fact that this argument is raised exclusively in a footnote in Legacy's reply brief, the plain language of Or. Admin. R. 333-019-1010(4) contemplates employers granting religious and medical exceptions while allowing unvaccinated healthcare providers to continue working under certain circumstances. See Keizer Campus Operations, LLC v. Lexington Ins. Co., 2013 WL 4786521, *4 n.2 (D. Or. Sep. 5, 2013) (courts “need not consider or address ‘substantive arguments raised only in a footnote'”) (quoting Rambus Inc. v. HynixSemiconductor Inc., 569 F.Supp.2d 946, 985 (N.D. Cal 2008)); see also Shane v. Bio-TechneCorp., 2023 WL 3936638, *5 (D. Minn. June 9, 2023) (finding cases “determin[ing] that the defendant state-licensed health facilities were certain to violate state requirements by accommodating vaccination exemptions” distinguishable where the defendant “has not identified a state or federal law that it would be required to violate in order to accommodate [the plaintiff or] explained what consequences would be certain to follow such a violation”). As such, the issue still turns on whether the specific accommodations requested in this case would impose an undue burden, which, as addressed herein, requires a factual inquiry beyond the purview of these proceedings. See, e.g., Compl. ¶ 52 (doc. 1). The Court finds Legacy's reliance on the oral argument transcript from Brown v. Nw. Permanente (Case No. 3:22-cv-00986-SI) equally unavailing. In Brown, the employer granted the plaintiffs' religious exceptions and the parties made various concessions, such that the way the issue was phrased before the Court differed and, in any event, no decision has been issued surrounding the pending Rule 12(b)(6) motion.
Given the lack of on-point legal authority, the Court is hesitant to dismiss Quinn's religious discrimination claims (let alone with prejudice) solely on the basis of undue hardship. This is especially true since determining undue hardship is a fact intensive inquiry that generally requires the employer's specific submission of hardship. Cf. Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1033 n.4 (8th Cir. 2008) (“an employer must establish that the hardship is real rather than speculative[,] merely conceivable, or hypothetical” and “[u]ndue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts”) (citation and internal quotations omitted); see also Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978) (reversing the district court's dismissal of the plaintiff's Title VII claim because the defendants relied only on a general statement and failed to offer any evidence proving the truth of that statement or that “the accommodation of [of the plaintiff's religious beliefs] would otherwise have been an unduly difficult problem”).
And, as alleged in the Complaint, a number of other healthcare employers have granted religious exceptions and still complied with Or. Admin. R. 333-019-1010(4). See, e.g., Compl. ¶ 36 (doc. 1); see also Detwiler v. Mid-Columbia Med. Ctr., 2022 WL 19977290, *1 n.1 (D. Or. Dec. 20, 2022), adopted by 2023 WL 3687406 (D. Or. May 26, 2023) (defendant hospital granted the plaintiff a religious exception based on the cited use of cells from “aborted fetuses” in developing the available Covid-19 vaccines but required her to engage in weekly antigen testing and wear an N95 mask) (citation and internal quotations omitted).
In sum, the Court finds that a determination of undue hardship in the case at bar would require a factual inquiry beyond the scope of these proceedings. See Shane, 2023 WL 3936638 at *4-5 (denying the defendant's Rule 12(b)(6) motion based on a substantively similar undue burden affirmative defense (i.e., the defendant cited “hardships in the form of increased risk of employee exposure to COVID-19 [and] increased administrative and logistical [costs and] efforts,” assertions which were premised on “CDC guidance regarding the risk of transmission from unvaccinated individuals, as well as Minnesota Department of Health guidance regarding the effectiveness of self-testing”), denoting: “The Court will not go searching outside the complaint for facts clearly establishing an undue hardship, when such a fact intensive inquiry is more appropriate at a later stage [and declines to] resolve the parties' disputes over science, federal compliance, and administrative logistics”); see also Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 510 (D. Md. 2019) (declining to dismiss a Title VII claim based on a failure to accommodate theory where the plaintiff alleged a prima facie case and the defendant's assertions of undue burden were legitimate, but unsubstantiated).
II. Aiding and Abetting Claim
Plaintiffs allege the Doe defendants - all “members of Defendant LEGACY'S Exceptions Committee” - “acted in concert with, or gave substantial assistance to, LEGACY in unlawfully discriminat[ing] against Plaintiffs on account of Plaintiffs' respective religions.” Compl. ¶ 64-67 (doc. 1).
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(A), Cotton and Harris have failed to allege sufficient facts to state a plausible religious discrimination claim. Legacy's motion should therefore be granted as to Cotton and Harris' claim under Or. Rev. Stat. § 659A.030(1)(g).
Furthermore, Legacy's separate but related argument that the “threadbare claims against unnamed individual defendants should be dismissed” is well-taken. Def.'s Mot. Dismiss (doc. 7). That is, Quinn's surviving allegations against the Doe defendants fail to include any well-plead supporting facts. In particular, the entirety of Quinn's allegations merely state that the Doe defendants “are unknown to Plaintiff,” “legally responsible for the events and happenings herein,” and “acted in concert with, or gave substantial assistance to, LEGACY in unlawfully discriminating] against Plaintiffs.” Compl. ¶¶ 4, 66-67 (doc. 1). Such conclusory allegations are insufficient. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (the use of Doe pleading is appropriate only “where the identity of the alleged defendant is not known prior to the filing of a complaint” and the claims would not be otherwise subject to dismissal) (citation and internal quotations and brackets omitted); see also Pitts v. G4S Secure Sols. (USA) Inc, 2020 WL 6333959, *5 (D. Or. May 26), adopted by 2020 WL 4495453 (D. Or. July 31, 2020) (the plaintiff must allege specific acts that the defendants undertook that arose to aiding and abetting in order to state a claim).
Despite the Complaint's deficiencies, the Court declines to dismiss plaintiffs' claims with prejudice. Plaintiffs have 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 plaintiffs move to amend via their response brief, their request is procedurally improper. Pls.' Resp. to Mot. Dismiss 30-31 (doc. 10); see also LR 7-1(b) (“[m]otions may not be combined with any response, reply, or other pleading”); LR 15-1 (any motion to amend “must describe the proposed changes” and include as an exhibit “[a] copy of the proposed amended [that shows] how the amended pleading differs from the operative or superseded pleading”).
RECOMMENDATION
For the reasons stated herein, Legacy's Motion to Dismiss (doc. 7) should be denied as to Quinn's religious discrimination claims, and granted in all other respects. 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.