Opinion
3:23-cv-00206-SB
10-23-2023
A. KIM STEPHENS, an individual, Plaintiff, v. LEGACY-GOHEALTH URGENT CARE and LEGACY HEALTH, corporations, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge.
Plaintiff A. Kim Stephens (“Stephens”) filed this lawsuit against Defendants Legacy Health (“Legacy”) and Legacy Health-GoHealth Urgent Care (“LH-GHUC”) (together, “Defendants”), alleging religious discrimination claims under Title VII of the Civil Rights Act (“Title VII”) and Oregon Revised Statutes (“ORS”) § 659A.030. Defendants move, pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), to dismiss Stephens's religious discrimination claims, with prejudice, on the ground that she fails to state a claim upon which relief can be granted.
Legacy is an Oregon nonprofit corporation. (ECF No. 8 at 1-2.) LH-GHUC is the operating name of Northwest Urgent Care Phase II, LLC (“NUCP”), a Delaware limited liability company. (ECF No. 13 at 1-2.) Legacy is one of NUCP's parent corporations. (Id. at 2.)
The Court has jurisdiction over Stephens's Title VII claim pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over Stephens's state law claim pursuant to 28 U.S.C. § 1367, and not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court recommends that the district judge grant in part and deny in part Legacy's and LH-GHUC's motions to dismiss.
In evaluating a Rule 12(b)(6) motion, the Court must (and does) “accept the complaint's well-pleaded factual allegations as true, and construe all inferences in the plaintiff's favor[.]” Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016) (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) and Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)).
In or around late 2017, Stephens, a medical assistant certified to conduct x-rays, began working at Defendants' urgent care clinic in Oregon City, Oregon. (See Compl. ¶¶ 2, 4, 12, ECF No. 1.) Stephens is “a devoutly religious member of the Christian faith who endeavors at all times to follow the teachings of Christ.” (Id. ¶ 5.) Before the outbreak of the COVID-19 pandemic in early 2020, Stephens's “faith had not caused a conflict with her work requirements.” (Id. ¶¶ 6-7.)
In the summer of 2021, after Stephens worked for months during the pandemic and followed clinic rules and regulations to protect against infection (i.e., wearing personal protective equipment, testing, hand washing, social distancing, and quarantining), and twice contracted and recovered from COVID-19, Defendants announced their intent to impose a COVID-19 vaccine mandate. (Id. ¶¶ 7-10.) As “a devout Christian,” Stephens “did not believe it was consistent with her faith to take the vaccine,” and therefore applied for a religious exemption in early September 2021. (Id. ¶ 10.)
Around the time that Defendants announced their intent to impose a COVID-19 vaccine mandate and Stephens applied for a religious exemption, the Food and Drug Administration (“FDA”) approved the COVID-19 vaccine and the Oregon Health Authority (“OHA”) adopted vaccine rules, such as the “Healthcare Order” then-codified at Oregon Administrative Rule (“OAR”) 333-019-1010. See Brown v. Nw. Permanente, P.C., No. 3:22-cv-00986-SI, 2023 WL 6147178, at *3-4 (D. Or. Sept. 20, 2023) (reviewing a motion to dismiss and describing the FDA approval and OHA's rules, such as the Healthcare Order, which the OHA adopted on August 25, 2021, modified on September 1, 2021, suspended in mid-2023, and repealed effective November 6, 2023).
The Healthcare Order addressed the state's unvaccinated population, COVID-19 variants, an increase in breakthrough COVID-19 cases in the state's vaccinated population, and the state's need to help control COVID-19 outbreaks and protect patients and the state's healthcare workforce:
Healthcare providers and healthcare staff have contact with multiple patients over the course of a typical day and week, including providers that provide care for people in their homes. Individuals cared for in these settings are more likely than the general public to have conditions that put them at risk for complications due to COVID-19. COVID-19 variants are running through the state's unvaccinated population and causing an increase in breakthrough cases for those who are fully vaccinated. This rule is necessary to help control COVID-19, protect patients, and to protect the state's healthcare workforce.Id. (quoting OR. ADMIN. R. 333-019-1010(1)).
Given “these concerns, the Healthcare Order provided that after October 18, 2021, ‘[h]ealth care providers and . . . staff [could] not work, learn, study, assist, observe, or volunteer in a healthcare setting unless they [were] fully vaccinated or have provided documentation of a medical or religious exception.'” Id. (quoting OR. ADMIN. R. 333-019-1010(3)(a)). In addition, employers “who grant[ed] a medical or religious exception to the vaccination requirement [were required to] take reasonable steps to ensure that unvaccinated healthcare providers and . . . staff [were] protected from contracting and spreading COVID-19.” Id. (quoting OR. ADMIN. R. 333019-1010(4)).
On September 30, 2021, Defendants informed Stephens that they had denied her application for a religious exemption. (Compl. ¶ 11.) Defendants placed Stephens on “unpaid administrative leave [that same day] and . . . terminated [Stephens] on October 21, 2021.” (Id. ¶ 12.)
After receiving a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) on November 17, 2022 (id. ¶ 1), Stephens filed this action against Defendants on February 13, 2023, alleging religious discrimination claims. Defendants' motions followed.
LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
DISCUSSION
Defendants argue that Stephens fails to state plausible religious discrimination claims under Title VII and ORS § 695A.030 and that amendment would be futile, and therefore move to dismiss Stephens's complaint with prejudice. (See Def. Legacy's Mot. Dismiss (“Legacy's Mot.”) at 1-2, ECF No. 6, seeking dismissal with prejudice on this ground; Def. Legacy's Reply Supp. Mot. Dismiss (“Legacy's Reply”) at 16, ECF No. 21, arguing that amendment would be futile).
LH-GHUC “joins,” “adopts,” and “incorporates[] by reference” Legacy's motion and reply brief “as though fully set forth” in LH-GHUC's filings, and makes the same arguments. (Def. LH-GHUC's Mot. Dismiss & Joinder Def. Legacy's Mot. Dismiss (“LH-GHUC's Mot.”) at 1, 3-5, ECF No. 11; Def. LH-GHUC's Reply Supp. Mot. Dismiss & Joinder Def. Legacy's Mot. Dismiss (“LH-GHUC's Reply”) at 1-2, ECF No. 22; cf. Legacy's Mot. at 6-19; Legacy's Reply at 2-17.) Thus, the Court addresses Defendants' motions to dismiss together.
I. APPLICABLE LAW
Stephens's religious discrimination claims are based on a failure-to-accommodate theory. (Compl. ¶¶ 16, 20-21, 25-26.) To establish a prima facie case of religious discrimination under this theory, Stephens must show that “(1) she had a bona fide religious belief, the practice of which conflict[ed] 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.” Keene v. City & Cnty. of S.F., No. 22-16567, 2023 WL 3451687, at *1 (9th Cir. May 15, 2023) (brackets omitted) (quoting Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006)). According to the EEOC, “[a] bona fide religious belief is one that is ‘sincerely held.'” Id. (quoting U.S. Equal Emp. Opportunity Comm'n, EEOC-CVG-2021-3, Section 12: Religious Discrimination, § 12-I(A)(2) (Jan. 15, 2021)).
A plaintiff's “religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.” Id. (citing Thomas v.Review Bd. Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981), Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1176 n.3 (9th Cir. 2021), and EEOC Guidance, § 12-I(A)(2)). But that “does not mean that courts must take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023) (citing Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016-17 (9th Cir. 2016)). Nor does that mean that employers need to accommodate personal preferences, as Title VII does not protect secular preferences. See Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681-83 (9th Cir. 1998) (holding that the plaintiff failed to establish a prima facie case of religious discrimination under Title VII because she failed adequately to show that the timing of her religious pilgrimage was part of her bona fide, pilgrimage-related religious belief, as opposed to a personal preference, and explaining that employers need not “accommodate the personal preferences of the employee” because “Title VII does not protect secular preferences”) (citations omitted).
Once the plaintiff establishes a prima facie case, “the burden 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.'” Berry, 447 F.3d at 655 (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
II. ANALYSIS
A. Stephens's Prima Facie Case
Stephens's religious discrimination claims are based on her allegation that as a “devout Christian” and “devoutly religious member of the Christian faith who endeavors at all times to follow the teachings of Christ,” she “did not believe it was consistent with her faith to take the vaccine.” (Compl. ¶¶ 5, 10.) Given her belief, Stephens applied for a religious exemption. (Id. ¶ 11.)
Defendants argue that Stephens fails plausibly to allege that “she had religious beliefs that conflicted with [the] vaccination policy[.]” (Legacy's Mot. at 7; see also LH-GHUC's Mot. at 3, making the same argument and citing pages seven through eleven of Legacy's motion). Defendants argue that Stephens's allegations are deficient because she alleges only that she is a devout Christian but fails to “explain why or how the vaccine conflicts with her faith.” (Legacy's Mot. at 9.)
Defendants also argue that in “the interest of judicial economy and pursuant to the case law cited in Section III of [Legacy's] [m]otion,” the Court may consider the contents of Stephens's application for a religious exemption when “assessing the sufficiency of [her] claims.” (Id. at 4 n.4; see also id. at 4-5, reflecting that Section III of Legacy's motion sets forth general legal standards regarding, among other things, judicial notice and the incorporation-by-reference doctrine). Defendants maintain that Stephen's application for a religious exemption demonstrates that her purported religion-based justifications for opposing the vaccine mandate are “insufficient as a matter of law,” because they are not “religious in nature” and “at best [are] interpreted as moral or philosophical objections, which are not protected under Title VII.” (Id. at 9-11.)
The Court agrees with the Defendants that Stephens fails plausibly to allege that she had a bona fide religious belief, the practice of which conflicted with the vaccine mandate. The Court, however, disagrees with Defendants' suggestion that Stephens's potential objections fail as a matter of law and, therefore, that granting Stephens leave to amend her claims would be futile.
In support of their arguments, Defendants rely in part on the Third Circuit's decision in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 877 F.3d 487, 492 (3d Cir. 2017). (See Legacy's Mot. at 7-8, citing Fallon and the case on which Fallon primarily relied, and noting that Fallon described a court's task “at the motion to dismiss stage” with respect to the issue of whether a plaintiff's allegations are religious in nature and protected by Title VII).
In Fallon, the plaintiff sued his former employer, a hospital, under Title VII, alleging that the employer discriminated against him and failed to accommodate his religion by concluding that he did not qualify for a religious exemption from a flu vaccination policy and terminating his employment. 877 F.3d at 488. At the motion to dismiss stage, the district court dismissed the case with prejudice on the ground that the plaintiff's beliefs (i.e., the flu “vaccine might do more harm than good”) were “not religious in nature and, therefore, not protected by Title VII.” Id. at 488-89 & n.2.
In affirming the district court's dismissal with prejudice, the Third Circuit addressed whether the plaintiff had pleaded a prima facie case of religious discrimination, and observed that the dispositive issue was whether the plaintiff's opposition to vaccination was a “religious belief under Title VII.” See Id. at 490 (“We are left to consider only whether [the plaintiff's] opposition to vaccination is a religious belief under Title VII. If not, he has not pleaded a prima facie case.”). On this issue, the Third Circuit relied on a three-part definition of religion that it adopted and described in Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981). See Fallon, 877 F.3d at 491-93 (noting that Africa adopted and described the definition and assessing whether the plaintiff's anti-vaccination beliefs met the “Africa factors” and, as a result, were religious).
The plaintiff's beliefs were “laid out in the complaint” and showed that he “agree[d] with a quote, attributed to the founder of Buddhism[.]” Id. at 492. Specifically, the plaintiff agreed with this quote:
Do not believe in anything simply because you have heard it. Do not believe in anything simply because it is spoken and rumored by many. Do not believe in anything merely on the authority of your teachers and elders. Do not believe traditions because they have been handed down for many generations. But after observation and analysis, when you find that anything agrees with reason and is conducive to the good and benefit of one and all, then accept it and live up to it.Id. The plaintiff also “believe[d] that one should not harm [his] . . . own body,” that “the flu vaccine may do more harm than good,” and that “he must follow his conscience and refuse the influenza vaccine” because “if he yielded to coercion and consented to the hospital mandatory [vaccine] policy, he would violate his conscience as to what is right and what is wrong.” Id. (simplified).
The Third Circuit recognized that anti-vaccination beliefs may be part of a broader religious faith in some circumstances and protected under Title VII, but nevertheless held that because the plaintiff's beliefs did not satisfy the Africa factors, they were not religious or protected:
It does not appear that [the plaintiff's] beliefs address fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature. Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine. In particular, the basis of his refusal of the flu vaccine-his concern that the flu vaccine may do more harm than good-is a medical belief, not a religious one. He then applies one general moral commandment (which might be paraphrased as, ‘Do not harm your own body') to come to the conclusion that the flu vaccine is morally wrong. This one moral commandment is an ‘isolated moral teaching'; by itself, it is not a comprehensive system of beliefs about fundamental or ultimate matters. Thus, we do not believe that either of the first two factors in Africa is met here.
[The plaintiff] fares no better under the third factor. [The plaintiff's] views are not manifested in formal and external signs, such as ‘formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.'
For this reason, because [the plaintiff's] beliefs do not satisfy any of the Africa factors, [the plaintiff's] beliefs do not occupy a place in his life similar to that occupied by a more traditional faith. His objection to vaccination is therefore not religious and not protected by Title VII.
We note that we are not the only court to come to the conclusion that certain anti-vaccination beliefs are not religious. This is not to say that antivaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can, and in those circumstances, they are protected. However, [the plaintiff] has not presented such circumstances here.Id. at 492-93 (footnotes and citations omitted).
The Ninth Circuit has cited favorably to and relied on Africa, a First Amendment case, albeit in the summary judgment and First Amendment contexts. See Alvarado v. City of San Jose, 94 F.3d 1223, 1225-31 (9th Cir. 1996) (reviewing a grant of summary judgment in the defendant's favor on a First Amendment claim and relying on Africa in assessing whether there was “a cognizable religious interest at issue”). Recently, a judge in this district noted that the Africa factors were “not dispositive” in the Title VII context because it is a “much broader standard than that employed in the context of the First Amendment,” but “the Africa factors clearly have been endorsed within the Ninth Circuit and provide helpful guideposts[.]” Detwiler v. Mid-Columbia Med. Ctr., No. 3:22-cv-01306-JR, 2022 WL 19977290, at *3 n.3 (D. Or. Dec. 20, 2022) (simplified), findings and recommendation adopted, 2023 WL 3687406, at *1 (D. Or. May 26, 2023). Detwiler also cited favorably to Fallon with respect to whether certain beliefs were religious in nature. SeeId. at *4.
The Court agrees that at a minimum, Fallon and the Africa factors provide useful guidance here. Fallon supports the conclusion that a plaintiff's concerns about vaccine health effects, disbelief of scientifically accepted views that a vaccine is harmless, and desire to avoid a vaccine are not religious in nature and protected under Title VII. Fallon also supports the conclusion that a plaintiff's anti-vaccination beliefs must address fundamental and ultimate questions having to do with deep and imponderable matters, and must be comprehensive in nature. Furthermore, Fallon recognizes that in some circumstances, anti-vaccination beliefs can be part of a broader religious faith and thus protected.
Applying those guideposts here, the Court finds that Stephens's allegations are conclusory and fall well short of even the Fallon plaintiff's allegations. According to the Ninth Circuit, “the burden to allege a conflict with religious beliefs is fairly minimal” but that “does not mean that courts must take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Bolden-Hardge, 63 F.4th at 1223 (citations omitted). Stephens alleges only that as a “devout Christian” and “devoutly religious member of the Christian faith who endeavors at all times to follow the teachings of Christ,” she “did not believe it was consistent with her faith to take the vaccine.” (Compl. ¶¶ 5, 10.) General references to Christianity do not meet even a “fairly minimal” burden at the pleading stage, as such allegations are conclusory and fail plausibly to suggest that a plaintiff's anti-vaccination beliefs are in fact religious. See Kather v. Asante Health Sys., No. 22-1842-MC, 2023 WL 4865533, at *5 (D. Or. July 28, 2023) (dismissing certain plaintiffs' religious discrimination claims under Title VII and noting that the plaintiffs “allege[d] facts that hint[ed] at religious beliefs but [did] not specify how those beliefs conflict[ed] with receiving a COVID-19 vaccine,” and stating that “[a] ‘threadbare reference' to religious beliefs is insufficient at the motion to dismiss stage”) (citation omitted).
However, Stephens may be able to cure her complaint's deficiencies and plausibly allege a prima facie case of religious discrimination. As Defendants note, Stephens's application for a religious exemption, which the Court assumes without deciding that it may consider with respect to Stephens's potential to cure, suggests that Stephens's opposition to the vaccine mandate was based on her religious beliefs regarding abortion because Stephens cited her belief in the “sanctity of life,” views on abortion, and opposition to “a vaccine which has been developed by fetal cell lines from aborted babies.” (See Legacy's Mot. at 10, quoting Decl. Sophie Shaddy-Farnsworth Supp. Def. Legacy's Mot. Dismiss (“Shaddy-Farnsworth Decl.”) Ex. 1 at 6-7, ECF No. 7.)
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).
Similarly, in a pending Findings and Recommendation in this district, see Findings and Recommendation at 1-16, Quinn v. Legacy Health, Case No. 3:23-cv-00331-JR (D. Or. June 16, 2023), ECF No. 15 (the “Quinn F&R”), the court explained that two of the plaintiffs' allegations “fail[ed] to establish religious opposition” to their employers' vaccine mandate, but the “same [was] not true for [another plaintiff], who invoked her anti-abortion stance, guidance from spiritual leaders, and the use of fetal cells in developing Covid-19 vaccines.” Id. at 9-10 (citing Keene, 2023 WL 3451687, at *2-3); see also id. at 10 n.4 (recognizing that “courts are not required to take plaintiffs' conclusory assertions of violations of their religious beliefs at face value”) (simplified).
Defendants attempt to distinguish Keene based on the absence of any “factual error or confusion [at the district court level] with respect to [Stephens's] alleged religious beliefs,” and Stephens's fetal cell line-related objection being “rooted in moral and philosophical objections to receiving the vaccine, as well as assertions about the chemical composition of the vaccine and its ‘unclean' ingredients, all of which are clearly not religious in nature.” (Legacy's Reply at 4-6) (citations omitted). However, Keene also suggests that Stephens could cure her complaint's deficiencies here.
In Keene, the Ninth Circuit reviewed the district court's denial of a motion for preliminary injunction and finding that the plaintiff employees, who sought but did not receive religious exemptions to an employer's vaccination requirement, had not made out a prima facie case of religious discrimination. 2023 WL 3451687, at *1. After describing the elements necessary to establish a prima facie case of religious discrimination under a failure-to-accommodate theory, the Ninth Circuit held that the district court erroneously concluded that neither plaintiff demonstrated that their religious beliefs were sincere or that their beliefs conflicted with receiving the COVID-19 vaccine (i.e., the first element of a plaintiff's prima facie case):
The record shows that Appellants swear that they are Christians who ‘believe in the sanctity of life.' The record before the district court also reflects that COVID-19 vaccine manufacturers used ‘[f]etal cell lines grown in a laboratory [that] started with cells from elective abortions that occurred several decades ago' to at least test vaccine efficacy.... After [the defendant] mandated that all non-exempt employees receive a COVID-19 vaccine, Appellants requested religious exemptions, which [the defendant] denied for reasons absent from the record. Under threat of termination for failure to vaccinate, Appellants retired from [the defendant], as they swore that they could not receive a vaccine ‘derived from murdered children' without violating their religious beliefs.
The district court erroneously concluded that ‘[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.' However, the record reflects that the COVID-19 vaccines are, albeit remotely, ‘derived' from aborted fetal cell lines.... This directly contradicts the district court's conclusion....
Beyond the district court's factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted....
The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are ‘no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines are derived from murdered babies' and generally stating that personal preferences are not sincere religious beliefs. And [the defendant] offered no argument or evidence that Appellants' beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants' claims applying the proper failure-to-accommodate inquiry.Id. at *2 (simplified).
Keene is distinguishable insofar as it involved a motion for preliminary injunction and a different record. Nevertheless, Keene does not undermine the conclusion that if a plaintiff alleges Christian-based beliefs in the sanctity of life and opposition to taking a vaccine connected to, or derived even remotely from, aborted fetal cell lines, the plaintiff meets the “fairly minimal” burden of alleging a bona fide religious belief. See Keene, 2023 WL 3451687, at *1 (noting that the first element requires the plaintiff plausibly to allege that she had “a bona fide religious belief, the practice of which conflicts with an employment duty,” and stating that “[a] bona fide religious belief is one that is sincerely held”) (simplified); Bolden-Hardge, 63 F.4th at 1223 (“The Supreme Court has, albeit in the free exercise context, cautioned against second-guessing the reasonableness of an individual's assertion that a requirement burdens her religious beliefs, emphasizing that a court's narrow function in this context is to determine whether the line drawn reflects an honest conviction.... [T]he burden to allege a conflict with religious beliefs is fairly minimal.”) (simplified).
As discussed, the above observation is consistent with persuasive decisions like Kather. See 2023 WL 4865533, at *4-5 (relying on Bolden-Hardge and the “minimal burden” at the pleading stage, holding that the plaintiff “adequately alleged a sincerely held religious belief, the practice of which conflicts with receiving a COVID-19 vaccine,” and noting that the plaintiff's allegations referenced her “‘Christianity' and resistance to receiving a vaccine developed with fetal cell lines”); cf. Rolovich v. Wash. State Univ., No. 2:22-cv-00319, 2023 WL 3733894, at *3 (E.D. Wash. May 30, 2023) (reflecting that the district court stated that the “[p]laintiff's claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine [was] sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief”).
The foregoing also supports the conclusion that Stephens can cure the deficiencies in her complaint because, as Defendants point out, Stephens's application for a religious exemption cited her Christian-based beliefs in the sanctity of life and views on abortion, and opposition to “taking a vaccine which has been developed by fetal cell lines from aborted babies[.]” (Legacy's Mot. at 10, quoting Shaddy-Farnsworth Decl. Ex. 1 at 6-7.) Even if some of Stephens's statements were not religious, the possibility remains that Stephens could allege the facts necessary to meet her minimal burden. See Fallon, 877 F.3d at 492-93 (“This is not to say that anti-vaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can, and in those circumstances, they are protected.”); see also Quinn F&R at 11 n.5 (noting that the defendant's attempts to distinguish Keene “minimize[d] the actual content of [the abortion- related] religious exemption request,” which also “relied on medical and/or secular beliefs surrounding the safety of the Covid-19 vaccine”).
For these reasons, the Court recommends that the district judge grant Defendants' motions to dismiss Stephens's religious discrimination claims on the ground that she fails plausibly to allege that her beliefs are religious in nature, and grant Stephens leave to amend her complaint.
B. Defendants' Affirmative Defense of Undue Hardship
Defendants argue that regardless of whether Stephens has or can plead a prima facie case of religious discrimination, Defendants are entitled to dismissal of Stephens's complaint with prejudice because, as a matter of law, Defendants could not have reasonably accommodated Stephens “without undue hardship.” (Legacy's Mot. at 7, 11-19; Legacy's Reply at 1-2, 6-17.) The Court disagrees and, therefore, recommends that the district judge deny Defendants' motions on this ground.
The Court finds the district court's decision in Brown instructive. (See also Legacy's Mot. at 17-18, reflecting that Legacy relies on the Brown oral argument transcript; Legacy's Reply at 15, same). In Brown, the district court denied a defendant's motion to dismiss in part, and explained that the defendant needed to raise its affirmative defense of undue hardship in a motion for summary judgment:
[T]he Court may properly disregard Plaintiffs' conclusory assertion that Defendants could have accommodated their religious beliefs without incurring undue hardship. In addition, the absence of an undue hardship on a defendant is not an essential element of a plaintiff's claim under Title VII; it is an affirmative defense.
The Ninth Circuit has explained that ‘[o]rdinarily, affirmative defenses . . . may not be raised on a motion to dismiss except when the defense raises no disputed issues of fact.' . . . As noted, Plaintiffs allege in their Complaint that it would not have been an undue hardship to have allowed Plaintiffs to continue working. Even if the Court were to disregard that allegation as merely
conclusory, Plaintiffs's Complaint does not itself establish the affirmative defense of undue hardship.
This does not mean, however, that Defendants must submit to timeconsuming and expensive discovery before filing a motion for summary judgment. The Court does not limit the parties to a single motion for summary judgment; nor does the Court require a party to wait until discovery has closed, if that party believes it has a meritorious argument for summary judgment. Under the facts and allegations here, the Court will consider the merits of any argument based on ‘undue hardship' after a well-supported motion for summary judgment has been filed. Accordingly, the Court denies Defendants' motion to dismiss Plaintiff's First and Second Claims under Rule 12(b)(6).Brown, 2023 WL 6147178, at *4-5 (footnote omitted) (quoting Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1194 n.6 (9th Cir. 2018)); see also Trusov v. Or. Health & Sci. Univ., No. 3:23-cv-00077-SI, 2023 WL 6147251, at *5-7 (D. Or. Sept. 20, 2023) (denying a motion to dismiss for the same reasons as Brown); Morris v. Asante Health Sys., No. 1:22-cv-01707-CL, 2023 WL 3766615, at *1 (D. Or. May 17, 2023) (“[The defendant] will of course have an opportunity to show that evidence exists disputing these allegations or that [the defendant] was unable to reasonably accommodate Plaintiff's beliefs without undue hardship. Such factual disputes and evidentiary showings are not appropriate for resolution at the pleading stage of this case.”), findings and recommendation adopted, 2023 WL 3764562, at *1 (D. Or. June 1, 2023); Rolovich, 2023 WL 3733894, at *4 (determining that “undue hardship [was] better reserved for summary judgment”); Bolden-Hardge, 63 F.4th at 1224-25 (“Undue hardship is an affirmative defense [in the Title VII context] . . ., 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.”) (simplified).
Similar to Brown, Stephens, a “medical assistant certified to conduct [x]-[r]ays,” alleges that it would “not have been an undue hardship to have allowed [her] to continue working with [personal protective equipment], regular testing, and other measure to protected against the spread of COVID-19, as [she had] done for the nearly two years before the imposition of the COVID-19 vaccine mandate.” (Compl. ¶¶ 4, 20.) In other words, Stephens disputes Defendants' claim that it would have been undue hardship to have allowed her to continue working.
Even if the Court disregarded as conclusory Stephens's allegations related to Defendants' affirmative defense of undue hardship and considered Defendants' declaration exhibits-i.e., Stephens's application, a copy of OAR 333-019-101, a regulation from the Centers for Medicare and Medicaid Services, publications from the Center for Disease Control and Prevention (“CDC”), and an OHA statement on undue hardship (see Shaddy-Farnsworth Decl. Exs. 1-5; Decl. Bradley Krupicka Supp. Def. LH-GHUC's Mot. Dismiss & Joinder Def. Legacy's Mot. Dismiss Ex. 2, ECF No. 12), Defendants have not identified an obvious bar to securing relief on the face of Stephens's complaint or in any judicially noticeable or incorporated materials.
Indeed, the record before the Court is not adequately developed at this stage and fails to demonstrate that under the circumstances presented, an undue hardship defense is obvious or established. Stephens's complaint and Defendants' exhibits consistent primarily of general information, not specific facts about, among other things, Stephens's day-to-day duties, work environment and surroundings, and contact with patients and co-workers during the relevant time period, or the location and manner in which Stephens must or could have performed her duties at that time. (Cf. Legacy's Mot. at 12-13, noting per EEOC guidance, an accommodation inquiry involves consideration of various factors, including “the nature of the employee's duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation”) (citation omitted).
Defendants argue that Stephens “provided direct patient care in her role,” “perform[ed] patient-care tasks including [x]-[r]ays,” and “provided direct care to medically vulnerable patients onsite at an urgent care facility,” and thus accommodating Stephens in the manner described in her complaint would have “resulted in less safe operations, which is more than a de minimis cost” and an undue hardship. (Id. at 2-3, 14, citing Compl. ¶¶ 2, 4, 7, 9, 20, 25.) But Stephens's complaint includes only general references to her work as “a medical assistant certified to conduct [x]-[r]ays,” and “the safety of her patients.” (See Compl. ¶¶ 2, 4, 7, 9, 20, 25.) Stephens's complaint does not include sufficient factual detail for Defendants to establish an undue hardship defense at the motion to dismiss stage.
The district court's recent decision in MacDonald v. Oregon Health & Science University, No. 3:22-cv-01942-IM, 2023 WL 5529959, at *1-3 (D. Or. Aug. 28, 2023), likewise supports the conclusion that Defendants should raise their affirmative defense of undue hardship in a motion for summary judgment. In MacDonald, the plaintiff was a registered nurse who worked in a hospital's “Mother and Baby Unit” until December 2021 and whose employer denied her request for a religious exemption to a vaccination requirement and terminated her employment. Id. at *1-3 . In denying the defendants' motion to dismiss the plaintiff's Title VII religious discrimination claim based on an undue hardship affirmative defense, the district court explained that “the cases to which [d]efendants cite were all decided either on motions for preliminary injunctions or motions for summary judgment, allowing the courts in those cases to rely on extrinsic evidence such as declarations, expert testimony, and medical and scientific studies, in reaching their conclusion.” Id. at *5 (citing Together Emps. v. Mass. Gen. Brigham Inc., 573 F.Supp.3d 412, 435 (D. Mass. 2021), Aukamp-Corcoran v. Lancaster Gen. Hosp., No. 19-cv-05734, 2022 WL 507479, at *6-8 (E.D. Pa. Feb. 18, 2022), Brox v. Hole, 590 F.Supp.3d 359, 367, 367 n.8 (D. Mass. 2022), O'Hailpin v. Hawaiian Airlines, Inc., 583 F.Supp.3d 1294, 1309-10 (D. Haw. Feb. 2, 2022), Barrington v. United Airlines, Inc., 566 F.Supp.3d 1102, 1109 (D. Colo. 2021), and Robinson v. Children's Hosp. Bos., No. 14-cv-010263, 2016 WL 1337255, at *9-10 (D. Mass. Apr. 5, 2016)).
The district court further explained that “[u]nlike motions for preliminary injunctions or motions for summary judgment, [the district court was] limited in the materials it may consider on a motion to dismiss,” and no exception to this general limitation (i.e., the incorporation-by-reference doctrine and judicial notice under Federal Rule of Evidence 201) applied. Id. at *6-7 (citations omitted). Consistent with these observations, the district court found that at the motion to dismiss stage, it was unable to conclude that the defendants satisfied their burden of demonstrating that accommodating the plaintiff would have created an undue hardship. Id. at *7. The district court added that the defendant “may very well be able” to do so on “a more robust record.” Id.
The district court also addressed the defendants' argument that accommodating the plaintiff would have put them out of compliance with state law, which is an undue hardship. Id.The district court noted that OAR 333-019-1010(4) provided that “a health employer may grant an employee a religious exemption from the vaccination requirement so long as the employer ‘take[s] reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.'” Id. (citation omitted). The district court explained that (1) “[i]nherent in this [OAR] requirement is at least an implicit recognition that there are steps that an employer could plausibly take, in lieu of a COVID-19 vaccine, to protect workers and staff from spreading and contracting COVID-19,” and (2) that “without extrinsic evidence that no reasonable steps were available to ensure that unvaccinated healthcare providers and healthcare staff were protected from contracting and spreading COVID-19, [the district court could not] find at [the motion to dismiss] stage that granting [the plaintiff] a religious accommodation would have automatically placed [the defendants] out of compliance with state law.” Id.; see also Johnson v. St. Charles Health Sys., Inc., No. 6:23-cv-00070-MK, 2023 WL 5155591, at *3 (D. Or. July 21, 2023) (addressing OAR 33-019-1010(4) and determining that there was “nothing in the record thus far to show that allowing [the plaintiff] to adhere to her proposed accommodations-allowing [the plaintiff] to remain unvaccinated and engaging instead in frequent testing and using additional or enhanced protective equipment-while continuing to work as a relief nurse would constitute an undue hardship”), findings and recommendation adopted, 2023 WL 5139962, at *1 (D. Or. Aug. 10, 2023); Payne v. St. Charles Health Sys., No. 6:22-cv-01998-MK, 2023 WL 4711431, at *3 (D. Or. July 6, 2023) (same), findings and recommendation adopted, 2023 WL 4711095, at *1 (D. Or. July 24, 2023); DeMeyer v. St. Charles Health Sys., Inc., No. 6:23-cv-00069-MK, 2023 WL 5614946, at *1 (D. Or. July 3, 2023) (same), findings and recommendation adopted, 2023 WL 5609102, at *1 (D. Or. Aug. 23, 2023).
Much of MacDonald's rationale applies here. To be sure, Defendants present similar arguments, rely on many of the same cases, and submit comparable extrinsic evidence. See 2023 WL 5529959, at *5-8 (citing the cases above from outside this circuit, rejecting undue hardship arguments based on there being no viable substitution to vaccination, an inability to comply with state law, and obstacles to complying with state law, and noting that the defendants' extrinsic evidence included, but was not limited to, CDC factual statements about vaccine efficacy and decreased prevalence and spread of COVID-19); (cf. Legacy's Mot. at 11-19, making similar arguments and relying on comparable evidence, and citing Together, Aukamp, Brox, O'Hailpin, Barrington, and Robinson). As in MacDonald, the Court notes that “on a fuller evidentiary record, Defendants may be able to satisfy their burden to show that any accommodation would indeed have resulted in [an undue hardship].” 2023 WL 5529959, *8. Defendants, however, “have not met that burden at this stage,” Id., and thus the Court recommends that the district judge deny Defendants' motions to the extent they are based on their affirmative defense of undue hardship.
Consistent with the authorities and observations above, the Court declines further to address Defendants' affirmative defense of undue hardship. The Court notes that the Supreme Court's recent decision in Groff v. DeJoy, 600 U.S. 447, 468-71 (2023), clarified the “undue hardship” inquiry under Title VII. SeeBrown, 2023 WL 6147178, at *3-4 (detailing what Groff “clarified” in the Title VII context) (citation omitted). Given the Court's decision not to consider any undue hardship defense until it receives a motion for summary judgment, the Court rejects Stephens's suggestion that Groff may necessitate “additional briefing” or a delay in the Court's ruling on the pending motions. (See, e.g., Pl.'s Resp. Def. Legacy's Mot. Dismiss Pl.'s Compl. at 2, 8, ECF No. 14.)
For these reasons, the Court recommends that the district judge grant Defendants' motion to dismiss Stephens's religious discrimination claims on the ground that she fails plausibly to allege that her anti-vaccination beliefs are religious in nature, and grant Stephens leave to amend. Furthermore, the Court will consider the merits of Defendants' undue hardship affirmative defense when properly presented. The Court encourages the parties to confer regarding a case management schedule that allows for an early motion for summary judgment on the undue hardship affirmative defense, to allow for efficient resolution of that issue before time consuming and expensive discovery on other issues.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT IN PART and DENY IN PART Legacy's motion to dismiss (ECF No. 6) and LH-GHUC's motion to dismiss (ECF No. 11), and allow Stephens to file an amended complaint within fourteen (14) days.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.