Opinion
C/A 24-36-JDA-SVH
03-01-2024
Antoinette Brunson, Plaintiff, v. Aiken/Barnwell Counties Community Action Agency, Inc., Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, Antoinette Brunson (“Plaintiff”) alleges religious discrimination and retaliation leading to her wrongful termination, which occurred after she refused the COVID-i9 vaccine. Her former employer, Aiken/Barnwell Counties Community Action Agency, Inc. (“Defendant”) seeks dismissal of her claims.
Plaintiff asserts three claims against Defendant for violation of Title VII of the Civil Rights Act of i964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., arguing that Defendant (i) failed to accommodate her religious beliefs, (2) treated her differently than others, and (3) retaliated against her. This matter comes before the court on Defendant's motion to dismiss filed pursuant to Fed.R.Civ.P. i2(b)(6). [ECF No. 5]. The motion having been fully briefed [ECF Nos. 9, ii], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss.
I. Relevant Factual Background
Plaintiff alleges she began working for Defendant in 1997 and was most recently employed as the Foster Grandparent Program Director. [ECF No. 1-1 ¶ 11]. Plaintiff alleges she had no disciplinary actions on her employment record and met Defendant's legitimate performance expectations. Id. ¶ 12.
Plaintiff states she worked in-person in a private office where she was able to socially distance without issue for two years. Id. ¶ 13. According to Plaintiff, Defendant did not implement a COVID-19 vaccination protocol prior to 2022. Id. ¶ 14.
On or about September 16, 2021, in advance of a potential 2022 vaccine protocol release, Defendant requested that staff submit their official proof of COVID-19 vaccination record or provide a sufficient reason for why they could not be vaccinated for COVID-19. Id. ¶ 15. Plaintiff responded with a three-page letter on September 29, 2021 (“September Letter”), notifying Defendant that she was not vaccinated for COVID-19 and requesting a religious exemption for the COVID vaccine based on her sincerely-held religious beliefs, Id. ¶ 16, as follows:
Please accept this letter as a request for Religious Exemption from the Covid Vaccine mandate. Based on my understanding of Title VII of the Civil Rights Act, the First Amendment to the United States Constitution, and other federal and state laws, I choose to exercise my right to request a religious exemption to the requirement that I be vaccinated using the Covid-19 shots. This request is based on my sacred religious beliefs in accordance to my relationship with my God and Savior, Jesus Christ and my faith in his teachings in the Holy Bible. This letter is urgently written as a devout Christian of America, who believes that the Word of God forbids us to accept certain things and entities into our bodies, as our bodies are the living temple of the Holy Spirit. And as such, to ask us to violate these Commandments of our God would force us to choose between human science, versus our undying faith in the written commands of our Creator.
Title VII of the Civil Rights Act prohibits an employer from discriminating against an employee on the foundation of that employee's sincerely held religious beliefs. Treating an employee adversely by reason of their religious beliefs, is religious discrimination and a direct violation of the Civil Rights Act. While the law of this land serves to protect members of organized religions, such as: Hinduism, Islam, and Christianity, that protection extends to others who have sincerely held religious beliefs.
It is not my responsibility to force my personal religious convictions regarding this matter on other persons as I believe whether to receive a Covid-19 shot is personal decision to each person (Romans 14). Where scripture does not expressly instruct on a particular matter, I believe that I am required to search the Scripture myself for related truths (Romans 15:4) and to seek personal guidance from the Holy Spirit (Acts 2:38-39; Romans 8). If I fail to submit to the personal convictions that the Holy Spirit and Scripture has impressed upon me, I feel it will be sinning against God. I have personally searched the Scripture and sought guidance from the Holy Spirit to come to my decision.
The Bible states that the body is the Temple of the Holy Spirit. We are commanded to take good care of it, not to defile it, and certainly not introduce something into it that could potentially harm it (1 Corinthians 3: 16-17, 2 Corinthians 5: 10, and 2 Corinthians 7: 1). For many years, vaccines have been endowed in our communities. However, Covid-19 vaccinations do not work in the same fashion as long-established vaccines. Covid-19 vaccines are the first of their kind; Pfizer and Moderna being the first mRNA vaccines and Johnson & Johnson being the first adenoviral vaccines. Rather than utilizing a fragment of dead virus and a substance to enhance the body's immune response, both the mRNA vaccines and the adenoviral vaccines use genetic sequences that serve to teach my body how to manufacture a spike protein that is anomalous to my own genetic structure. While some professionals in the scientific community assert this practice will not modify my genetic system and that the inoculation is prevented from advancing to the rest of my body, there are other scientists and authorities that challenge this claim with evidence supporting their views. At any rate, there is not a clear and robust consensus on how and if these novel therapies can and will manipulate my DNA. God created me in His own image. (Genesis 1:27) As my Master, Healer and Creator, God knew what He was doing when He created humanity. His creation, my body, should not be forcefully subjected to any interference of mankind. I am commanded by the Holy Spirit and the Word of God to honor the Lord with by body. (1 Corinthians 6:20) Even the minutest possibility of genetically modifying my body would serve as a violation against the sacred relationship I hold with my Savior.
Finally, during the developmental phases of both the mRNA vaccines and the adenoviral vaccines, cells grown in a laboratory based on aborted fetal cells were used for testing and research purposes. The fetal cell lines grown in a laboratory descend from cells taken from abortions that took place in the 1970s and the 1980s, these are just the ones we know of. Vaccines that use this practice as a method for further production displays an overpowering disrespect for the remains of innocent babies who were denied the right to life and liberty. One of the most profound passages from God's Word states, “Now the word of the
Lord came to me, saying, “Before I formed you in the womb, I knew you, and before you were born, I consecrated you; I appointed you a prophet to the nations.” With His words, God is emphasizing the value of life in a mother's womb and the care and devotion He holds for the preborn. Using vaccinations that capitalize on the deaths of innocent babies for incentives, infringes upon the teachings of my Lord and sacred beliefs I hold dear.
I also want to take this time to point out there is a profound contrast in helping a body in crisis and forcefully subjecting a healthy body to medical intervention. Jesus says in Matthew 9:12, “Those who are well do not need a physician, but the sick do.” Conflating a healthy body being mandated to receive a vaccine for preventative measures with assisting a body in crisis, again, serves as a transgression to the Word of God. Whereas we do not know the long-term consequences of the Covid Vaccine and we do not understand its long-term effects on our bodies. Health officials have said breakthrough infections are expected because none of the vaccines currently approved for distribution are 100 percent effective. '”You will always see some breakthrough infections no matter the efficacy of your vaccine,” Dr. Anthony Fauci told the outlet. So far, 74 people have died from breakthrough infections-but it's not clear which vaccine they received, if the patients came from high-risk groups or if there were any other circumstances contributing to the deaths. This story was from an April report in The New York Post. It is no secret that fully vaccinated individuals can still catch Covid-19. Shockingly, despite the obviously growing number of breakthrough cases, the CDC began limiting breakthrough cases they considered “worthy of reporting.” On May 1st, the CDC halted including all breakthrough infections and began to “just report” infections that lead to hospitalization or death, a deviation that was highly criticized by health experts. Therefore, not only do I know that I can still be infected with Covid-19 with this vaccination, but there is no accurate representation of the true percentage of vaccine immune “infections.” In June, CDC numbers indicated that nearly 5,000 people who were fully vaccinated were either hospitalized or died from Covid-19. That number does not reflect breakthrough-infections without severe disease progression. While these numbers were prior to the surge
we saw in our communities beginning in July, one must believe those statistics have increased. Furthermore, even with 80% of adults vaccinated in Israel, the delta variant is responsible for 70+% of new infections-a third, or 33% of those “new infections” can be attributed to vaccinated individuals. Hence my decision; not to subject my currently healthy body to these unnecessary risks at this time.
I, personally, know of four local people that have been vaccinated and have had severe or fatal reactions. One, my son's high school friend who is 28, is in ICU right now on a ventilator. One, a woman I know in North Augusta, mid-50's with no prior health conditions, had the vaccine and now has been diagnosed with Leukemia.
Another woman, who is 54, was vaccinated and now is in kidney failure. Finally, and probably most disturbing, a young man, just 16 years old died days after receiving his second dose of the vaccine. So, with this information and with much prayer, I am forced to err on the side of spiritual caution and refuse to harm my body in honor of God's Holy Word. I, however, do not judge those who have had it or plan to receive it. It is my belief that everyone has a right to decide what is best for them and their own body. While, as a Christian, I strive to be at peace with all men and to obey all laws and mandates from a legitimately elected government, I do not do so in violation of God's Holy Laws, of which the protection of my body is one of those spiritual laws that supersedes all manmade laws in my religious conscience.
I have not discussed this letter or my major concerns with my coworkers. Of course, the subject has come up in general conversation, but not at deep level. Because this petition is dictated by law and is being provided to you based on a requirement, I ask that this request for exemption remain confidential and only appropriate personnel charged with approving my request be made privy to the thoughts and sentiments not shared in casual conversation with my colleagues and that are genuinely personal to me. Due to the division within our society, individual vaccination status should remain unknown so those who hold preconceived prejudices will not
discriminate and/or encourage others to discriminate or marginalize against each other. I have not tried to push my convictions on anyone else. I think everyone needs to make their own informed decisions based on their own research and beliefs.
I realize that it is my responsibility to conduct myself and all activities in a manner protective of the environment. I will continue to follow all safety procedures and guidelines set forth, such as wearing a mask, washing hands, wiping down doorknobs, phones, keyboards, etc., staying in my office unless absolutely necessary, and checking fever and any other requirements set forth. On days not necessary to be in the office, I can work from home, although, I believe that the front door being locked, all individual office doors being closed most of the time, and not allowing visitors in the building and with every precaution stated above, the agency has set forth a strong, safe environment without having to force a vaccine.
These words are the true representation of the unique guidance and message I have received and continue to receive from God at this time. My hope is that I have stated clear and concise reasoning for my decision. This isn't an attempt to sway you to my own beliefs and personal translations, but I do ask that they be respected and honored as lawful. Thank you for your consideration in this matter and I await your written response to my very sincere request for religious exemption from this mandate.[ECF No. 5-3].
Although courts generally do not consider matters outside the pleadings in ruling on a motion to dismiss, Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), a court may consider documents outside the pleadings without converting a motion to dismiss into one for summary judgment if those documents are “integral to and explicitly relied on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484, 490 (4th Cir. 2015). Here, Plaintiff argues without explanation that “[a]lthough some of the documents are referred to in the Complaint, none of the documents are integral to the Complaint.” [See ECF No. 9 at 5]. However, “[a] document is integral to a complaint if the claims turn on or are otherwise based on statements contained in the document,” Defs. of Wildlife v. Boyles, 608 F.Supp.3d 336, 344 (D.S.C. 2022), as is the case here regarding Plaintiff's September Letter, October Letter, and religious accommodation form. Other documents submitted by the parties are not dispositive to the resolution of the instant motion. Therefore, the court need not determine whether these documents are integral to and explicitly relied on in the complaint.
On October 19, 2021, Plaintiff submitted another letter (“October Letter”) in support of her request for a religious exemption for the COVID vaccine that addressed her job position and the reason a vaccine was not necessary for her job. [ECF No. ¶ 19]. This letter stated as follows:
I realize I have already turned a letter in to you about the vaccine mandate and my request for religious exemption. The reason for this letter is because this issue has been laying on my heart since all of this began and I feel I need to express some of my thoughts that were not relayed in my exemption request. As you know, I have devoted over two decades of my life to the mission of the Foster Grandparent Program. I value our program's dedication to our communities, and I have been honored to serve beside you and my other colleagues for over two decades. Due to the duration of my employment as the Program Director and the high regard I hold for your own position, I wanted to reach out to you, personally, and express my thoughts and concerns pertaining to the Covid-19 vaccination mandate.
To begin, I want to mention that the Grant Funder of the Foster Grandparent Program, AmeriCorps Seniors, in Washington D.C. has not mandated the vaccine and even the schools we are serving in have not mandated it. After much research, I have found that there is a difference in grant recipients and contractors. Because we are recipients of these grants and not federal contractors, it is my understanding that we do not fall under the current ruling of the executive order set forth, rather, this choice that has been left up to the grantee, sponsor, or subsite and in many cases the Executive Director gives recommendations as to what is he or she feels is best for the
organization or agency. While I respect that decision, I do ask that the civil liberties of those who have served beside you remain indispensable.
My heart breaks each day as the list of friends and family members having to choose between feeding their families and complying with these measures grows. In all my years I have never felt the amount of undo mental and physical stress I have been under since the letter dated Sept. 17th, 2021, came out. To put it in perspective, I feel like I am on trial for a crime I did not commit. My finances, my future for my family and a 22 plus year career at Aiken Barnwell Counties Community Action Agency, Inc. are all at risk and at the mercy of Board members who don't really know me or my co-workers and the verdict they bring to the table based upon their beliefs and opinions. This is not justice, and it is not what the America I love represents.
In addition to the plea of inequity, I want to highlight the ambiguous logic used in the advocacy of the vaccine mandate. In December 2020 Joe Biden stated, “No-I don't think it should be mandatory. I wouldn't demand it to be mandatory.” Even more recent, in April 2021, Nancy Pelosi went on the record stating, “So-so here is the thing. We are-we cannot require someone to be vaccinated. That's just not what we can do. It is a matter of privacy to know who is or who isn't.” Or I could reference President Biden's director of the CDC who, in August of this year, unequivocally declared, “To clarify: There will be no nationwide mandate . . . there will be no federal mandate.” There is no logical standard and the pronounced flipflop of Washington in a matter of two months contributes to the distrust I and so many others have in our Nation's leaders. The already controversial argument for science supporting the vaccine mandates weakens daily. At least 60% of the people in the United Kingdom who died from Covid in August of this year were fully vaccinated. Israel began vaccinating its population earlier than any other country and just recently mandated a third, booster shot because data illustrated fully vaccinated individuals were losing immunity and dying from Covid.
Furthermore, countless studies show that natural immunity has just as much protection, if not better, than vaccine immunity,
specifically with regard to rate of antibody decline in those who have recovered from an earlier wave of infection versus the overall induced immunity percentage of vaccinated individuals. It is no secret-vaccinated individuals can contract and contribute to the spread of Covid- 19. Since we are being pushed to trust the science, shouldn't we have a clear picture of all the science and not just what elected officials and their “right hand” experts have deemed appropriate? Then and only then, can a person truly give informed consent.
To avoid applying a mundane tone, I won't go into the details of the beliefs I illustrated in my religious exemption request. I do, however, want to elucidate the importance of the doctrine of the liberty of conscience and the prominent role it served in shaping religious liberty in the United States. Passed by the General Assembly in 1786, this doctrine served as the forerunner to the First Amendment's protection of religious liberty. Liberty of conscience was recognized as being granted by God and that it did not proceed from the state. My intentions are not seeking to support or oppose the Covid vaccine. I am simply arguing for the liberty of conscience and the dedication to preserving it. The recent enforcement of vaccine mandates has made it clear that the liberty of conscience is quickly fading from public consciousness. This vetting of beliefs should alarm anyone who values the religious liberty of our Nation.
As I stated before, I value your work and your dedication. We both have the same goal in sight and that is to provide for our communities and to offer opportunities to those who are less fortunate. With that being said, I cannot in moral rectitude comply with a mandate that is complicit in stripping those same people in our communities that we serve, of their own civil liberties.
I thank you, whole heartedly, for taking the time to read my thoughts and concerns. In the name of Jesus, I pray for everyone involved in this decision.[ECF No. 5-4].
On or about January 4, 2022, Defendant sent a memorandum to the staff indicating that it enacted a COVID-19 vaccine mandate, effective immediately. Id. ¶ 21. The memorandum informed staff that a form requesting medical or religious accommodation needed to be submitted by January 7, 2022, at 2 p.m. Id. ¶ 22.
Plaintiff alleges that on January 7, 2022, she submitted a religious accommodation form and attached her September and October Letters, as well as an accommodation request. Id. ¶ 23. Plaintiff's accommodation request stated:
I am requesting reasonable accommodations for working without getting tested each week. I have not been sick or had COVID since the Pandemic started. Many Employers are using the COVID Health Screening by asking employees to answer these questions instead of weekly tests that are known to be hard to find and get appointment and most places won't give one without the patient having symptoms, therefore causing people to be out of work for days or weeks at a time, therefore, causing a hardship for the individual programs and the agency. Please consider this avenue and consider focusing the screening questions on “new” or “unexpected” symptoms (e.g., a chronic cough would not be a positive screen). These are symptoms to pay attention to:
• Fever or feeling feverish (chills, sweating)
• New cough
• Difficulty breathing
• Sore throat
• Muscle aches or body aches
• Vomiting or diarrhea
• New loss of taste or smell
I feel that testing our temperatures each morning was working when we did that in the beginning of this situation. We stopped
for some reason. I feel if we reinstate that policy, along with continuing wearing mask, staying in our respective offices, social distancing when in the halls and such, and other safety procedures, then our office would be a safe and healthy zone. Another reasonable request would be working remotely a few days a week. My program and home are set up for remote working. Our AmeriCorps leaders in Atlanta and Washington (my grant funder) have been working remotely since the Pandemic started. We have Zoom meetings, phone calls and emails, as does our Board of Directors here at the agency. With that being said, AmeriCorps, has not required the vaccine for their program directors or staff. The schools and Head Start Centers where the Foster Grandparents are serving are not requiring the vaccines or tests. It has been proven that vaccinated and unvaccinated people are at risk of contracting this disease, so why should only the unvaccinated have to be tested. It doesn't seem fair and suggest discrimination.
“Our findings suggest that once you reach vaccination rates above 80 or 90 percent, the money spent on testing the unvaccinated could probably be better spent on other public health measures," said senior author Dan Larremore, an assistant professor in the Department of Computer Science. “That's because in places where 8 out of 10 people are vaccinated, not only will a majority of infections be vaccine breakthroughs, but most of the transmission will be coming from the vaccinated, not the holdouts.”
This makes since, as there are several people in our office that either have tested positive recently or are sick with symptoms at the time of this letter and all have been vaccinated.[ECF No. 5-5].
Plaintiff alleges that more than 50 of the grandparents with whom she served in her position signed a petition in support of Plaintiff keeping her job. [ECF No. 1-1 ¶ 27]. Plaintiff alleges, however, that on January 31, 2022, Defendant summarily denied all religious accommodation requests. Id. ¶ 28. Plaintiff further alleges that Defendant did not engage in the interactive process, and its denials were not based on an undue hardship. Id. ¶ 29.
Plaintiff was notified on February 23, 2022, that her religious accommodation request was denied and that she would be informed of the administrative procedure to address continued employment. Id. ¶ 30. Plaintiff alleges she continued to work in her office without issue. Id. ¶ 31. On March 4, 2022, Defendant distributed a memorandum detailing the agency-wide mandatory vaccine policy that would go into effect on March 18, 2022. Id. ¶ 32.
Plaintiff alleges Defendant notified her that the vaccine was a “condition of employment” and that staff who were not vaccinated for COVID and who did not provide proof of vaccination to Human Resources by 5 p.m. on Friday, March 18, 2022, would be terminated. Id. ¶ 33. On March 18, 2022, Defendant terminated Plaintiff and told her it was because she had “resigned” by not receiving the COVID vaccine. Id. ¶ 34.
Plaintiff alleges that she later discovered that Defendant hired her replacement before she was terminated. Id. ¶ 35. According to Plaintiff, Defendant advertised on Indeed.com a job opening for a Program Specialist/Management on or about January 28, 2022, only three weeks after Plaintiff requested a religious accommodation for the vaccine. Id. ¶ 36.
Defendant announced it hired a replacement for Plaintiff's position on or about March 16, 2022, prior to Plaintiff's termination. Id. ¶ 37.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “Courts have recognized that employees may utilize two theories in asserting religious discrimination claims,” “failure to accommodate” and “disparate treatment” theories. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996) (citation omitted). Here, Plaintiff asserts both theories, as well as a claim for retaliation.
1. Title VII Failure to Accommodate Claim
Title VII “requires employers to accommodate the religious practice of their employees unless doing so would impose an ‘undue hardship on the conduct of the employer's business.'” Groff v. DeJoy, 600 U.S. 447, 453-54 (2023) (quoting 42 U.S.C. § 2000e(j)). Where an employee alleges that their employer failed to provide a religious accommodation, courts analyze the case through a “burden shifting scheme akin to the one articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008).
Thus, a plaintiff must first establish a prima facie case by pleading, and ultimately proving that “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement.” Id. (quoting Chalmers, 101 F.3d at 1019). “If the employee establishes a prima facie case, the burden then shifts to the employer to show that it could not [reasonably] accommodate the plaintiff's religious needs without undue hardship.” Chalmers, 101 F.3d at 1019; see also 42 U.S.C. § 2000e(j).
Determining whether a plaintiff has a “bona fide religious belief” is a two-pronged inquiry: a court must determine whether the employee's belief is “religious” in nature, as opposed to social, political, or economic views or personal preferences, and whether that belief is “sincerely held.” United States v. Seeger, 380 U.S. 163, 185 (1965); Moore-King v. Cty. of Chesterfield, Va., 708 F.3d 560, 570-71 (4th Cir. 2013), abrogated on other grounds by Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S.Ct. 2361 (2018). “[I]n determining whether an employee's beliefs are religious in nature, courts have analyzed whether the beliefs in question (1) ‘address fundamental and ultimate questions having to do with deep and imponderable matters,' (2) are ‘comprehensive in nature,' and (3) ‘are accompanied by certain formal and external signs.'” Ellison v. Inova Health Care Servs., C/A No. 1:23-00132-MSN-LRV, 2023 WL 6038016, at *4 & n.6 (E.D. Va. Sept. 14, 2023) (quoting Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981) and noting that the Fourth Circuit has cited the Africa standard with approval).
Both Plaintiff and Defendant rely on the Africa standard in briefing [see ECF No. 5-1 at 8, ECF No. 9 at 9], as does much of the case law cited herein.
Defendant argues-and Plaintiff does not dispute-that the asserted religious basis for Plaintiff's religious exemption to taking the COVID-19 vaccines falls within the category of cases asserting “body-as-a-temple” claims. [ECF No. 5-1 at 8-9, ECF No. 9 at 10-11]. Review of this case law, all addressing the sufficiency of a complaint, is instructive and supports the conclusion that whether the COVID-19 vaccine is harmful or ineffective is not a belief, religious or otherwise, but rather a concern of scientific fact.
In this circuit, the Eastern District of Virginia has recently addressed a similar circumstance involving multiple plaintiffs, explaining as to one of the plaintiffs as follows:
In Ellison's request for exception, he claims that, as a Christian, he has a right to refuse the vaccine. Specifically, he claims that the Bible requires Christians to treat their bodies as “temple[s] of the Holy Spirit,” meaning that he is “compel[led]” to care for his mind and body. Dkt. No. 40-3 at 3.7 And because, in his view, taking the COVID-19 vaccine would “introduce to [his] body a medication that could induce harm,” he claims that complying with the hospital's policy would be “antithetical to [his] desire to honor God.” Id. Notably, Ellison supports his claim through references to his “personal analyses” of CDC and FDA databases that he believes prove that “there is a 28 times more likely chance of adverse reactions from the COVID-19 vaccines in the last 15 months, than from any of the other 50+ vaccinations.” Id. Ellison also provided “supplemental information” four months after submitting his initial request to be exempted from the new policy. Dkt. No. 40-4 at 2.8 In his renewed request Ellison first re-asserted the argument about his body being a temple and the need to keep it “protected and undefiled.” Id. at 3. He also stated (for the first time) that he prayed about the vaccine and that “the answer that [God] revealed was that [he] must protect [his] temple from the vaccine and refuse it.” Id.
Based on Ellison's own stated reason, the Court finds that, though couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety. District courts have routinely rejected similar claims. See, e.g., Passarella v. Aspirus, Inc., Nos. 22-cv-342, 22-cv-392, 2023 WL 2455681, at *2-7 (W.D. Wis. Mar. 10, 2023) (finding that exemption requests “predicated fundamentally on [ ] concerns with the safety of the vaccine and
[plaintiffs'] right to bodily integrity”-even if based on the “belief that [plaintiff's] body is a temple” and “ratified by prayer”-are fundamentally “medical judgments . . ., not matters of religious belief”).Ellison, 2023 WL 6038016, at *5 (dismissing the “body-as-a-temple” claims of several plaintiffs); see also Detwiler v. Mid-Columbia Med. Ctr., C/A No. 3:22-01306-JR, 2023 WL 7221458, at *6 (D. Or. Sept. 13, 2023) (“the Court readily accepts that plaintiff ‘has a bona fide religious belief that that her body is a temple of the Holy Spirit'-however, plaintiff's specific determination of what is harmful (i.e., ethylene oxide) was not, in this case, premised on the Bible or any other religious tenet or teaching, but rather on her research-based scientific/medical judgments”), report and recommendation adopted, C/A No. 3:22-01306-JR, 2023 WL 7220734 (D. Or. Nov. 2, 2023); Thornton v. Ipsen Biopharmaceuticals, Inc., C/A No. 23-11171-JCB, 2023 WL 7116739, at *4 (D. Mass. Oct. 26, 2023) (finding that the plaintiff's belief that “what God has created is perfect” and that it would “go against God by defiling [her] perfectly created body that He created in His image by receiving the vaccine” was “not a bona fide religious belief” entitled to Title VII protection); Guthrie-Wilson v. Cook County, C/A No. 1:23-362, 2023 WL 8372043, at *2 (N.D. Ill.Dec. 4, 2023) (“although plaintiff purports to ground her refusal to receive the Covid-19 vaccine in her faith as a Seventh Day Adventist, she identifies no specific religious tenet that conflicts with Covid-19 vaccination, citing only the broad principle that she must ‘practice a healthy lifestyle and abstain from anything that could bring her harm.'”); Finkbeiner v. Geisinger Clinic, 623 F.Supp.3d 458, 466 (M.D. Pa. 2022) (rejecting religious-discrimination claims concerning COVID-19 requirements because holding otherwise would “count everything [the plaintiff] believes about healthy living as religious practice”); Ulrich v. Lancaster Gen. Health, C/A No. 22-4945, 2023 WL 2939585, at *5 (E.D. Pa. Apr. 13, 2023) (E.D. Pa. Apr. 13, 2023) (“Ulrich's attempt to avoid testing which she argues ‘could bring potential harm, introduce harmful substances, cause adverse health effects or endanger [her] wellbeing,' and her argument that COVID testing would cause her ‘anxiety,' clearly state medical concerns which she attempts to ‘cloak with religious significance,' as in Africa.”).
Plaintiff argues otherwise, citing to a set of cases drawing the following distinction that she argues is applicable here:
[A] religious belief that the body is a temple of God is not in itself inconsistent with receiving a vaccine. Many people hold that belief without also believing that receiving a vaccine defiles the body. The important question isn't whether an employee has a religious belief not to mistreat her body; the question is whether the employee's belief that the vaccine qualifies as mistreatment is itself based in religion. If Petermann believed that the vaccine defiled her body because it was unhealthy or unsafe, that would be a medical objection, not a religious objection. See id. But if her objection to the vaccine was rooted in a belief “that she must remain as God made her,” that would be sufficient to show a religious conflict at the pleading stage.Petermann v. Aspirus, Inc., C/A No. 22-332-JDP, 2023 WL 2662899, at *2 (W.D. Wis. Mar. 28, 2023) (citation omitted); see also Passarella, 2023 WL 2455681, at *7 (dismissing claims from plaintiffs who indicated there was “no religious belief that would prevent [them] from taking the vaccine if [they] believed it was safe,” but allowing the claims of one plaintiff to proceed where her offered reasons for opposition to taking the vaccine was as follows: “I oppose all vaccines. My children are not vaccinated. My husband has never been vaccinated. My son is not circumcised. We are the way God made us. It is my right [as] an American and a Christian to remain that way.”); see also Leeck v. Lehigh Valley Health Network, C/A No. 5:22-4634, 2023 WL 4147223, at *9 (E.D. Pa. June 23, 2023) (denying employer's motion to dismiss because plaintiff objected to all vaccines and injections on religious grounds).
The distinction drawn by Plaintiff is inapplicable here where her proffered and primary reasons for refusing the COVID-19 vaccine are sciencebased. In her September Letter, Plaintiff objects to the vaccine as dangerous because it new, formulated differently from previous vaccines, and insufficiently or ineffectively tested; that “we do not know the long-term consequences of the Covid Vaccine and we do not understand its long-term effects on our bodies”; that the vaccine “genetically modifies” a person's body;that the vaccine is not completely effective; and that the vaccine poses “unnecessary risks,” arguing that she was aware of others who received the vaccine and had ”severe or fatal reactions,” including being placed on a ventilator, being diagnosed with Leukemia, experiencing kidney failure, and dying. [ECF No. 5-3]. Plaintiff's October Letter relies primarily on arguments concerning civil liberties, but also noting that “[t]he already controversial argument for science supporting the vaccine mandates weakens daily” and further arguing the superiority of natural immunity over vaccine immunity. [ECF No. 5-4]. In it, Plaintiff articulates her desire to not be forced to be vaccinated where the science is not “clear.” Id. at 3 (“Since we are being pushed to trust the science, shouldn't we have a clear picture of all the science and not just what elected officials and their ‘right hand' experts have deemed appropriate? Then and only then, can a person truly give informed consent.”).
The vaccine does not alter a person's DNA. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/facts.html (last visited February 29, 2024). A court may take judicial notice of factual information located in postings on government websites. Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff's primary and repeated arguments against the vaccine are focused on her distrust of the efficacy, safety, and necessity of the vaccine. See, e.g., Jackson v. Tyson Foods, Inc., C/A No. 5:23-5102, 2023 WL 9097854, at *6 (W.D. Ark. Nov. 27, 2023) (“Because the Court finds that her beliefs against vaccination are rooted in political, sociological, philosophical, and/or medical-rather than religious-beliefs, Ms. Jackson's claims under Title VII and ACRA are dismissed.”). As such, the cases highlighted by Plaintiff, including Petermann and Passarella, are inapplicable here and, instead, as stated by the court in Passarella, there appears to be no religious belief that would prevent Plaintiff from taking the vaccine if she believed it to be safe, 2023 WL 2455681, at *7; see also Fallon v. Mercy Cath. Med. Ctr. of Se. Pennsylvania, 877 F.3d 487, 492-93 (3d Cir. 2017) (“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 anti-vaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can, and in those circumstances, they are protected. However, Fallon has not presented such circumstances here.”).
Plaintiff argues that the Equal Employment Opportunity Commission (“EEOC”) “chose to define religion broadly to ‘ensure that the Commission will not have to determine what is or is not a religion.'” [ECF No. 9 at 6 (citing EEOC Compl. Man. § 2-II.A.1.c.)]. However, the EEOC has also provided the following guidance that is instructive here:
Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement 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), do not qualify as religious beliefs . . . under Title VII.
EEOC Guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last visited February 28, 2024).
Plaintiff additionally cites to Camp v. L.A. Arena Co., LLC, C/A No. EDCV 22-2220-JGB-KKX, 2023 WL 4680797, at *3 (C.D. Cal. June 15, 2023) where the court denied motion to dismiss, allowing Plaintiff's Title VII failure to accommodate claim to proceed where Plaintiff's alleged reason for refusing the COVID-19 vaccine is as follows:
I am commanded by my Lord and Savior Jesus Christ not to do anything that would desecrate or destroy my body. And taking an experimental vaccine that has been proven to be ineffective at stopping Covid-19; but instead has been proven to cause enlarged hearts, heart attacks, as well as a litany of other adverse side effects falls under the purview of knowingly desecrating and destroying my body.See also Langer v. Hartland Bd. of Educ., C/A No. 3:22-01459 (JAM), 2023 WL 6140792, at *6-7 (D. Conn. Sept. 20, 2023) (“These allegations and just their sheer prolixity suggest that Langer's real reason for objecting to both the vaccine and related testing requirement was because she does not believe the vaccine works. And an objection to the science that supports (or does not support) the COVID-19 vaccine is not an objection based on religion. Nevertheless, the true reason for Langer's objection to the testing requirement is an issue I should not resolve at the pleadings stage of this litigation.”). Camp and Langer appear inconsistent with the weight of authority and reasoning provided in the case law above.
This conclusion is subject to one notable exception. In Plaintiff's September Letter, she provided an additional reason for her objection to receiving the COVID-19 vaccine:
[D]uring the developmental phases of both the mRNA vaccines and the adenoviral vaccines, cells grown in a laboratory based on aborted fetal cells were used for testing and research purposes. The fetal cell lines grown in a laboratory descend from cells taken from abortions that took place in the 1970s and the 1980s, these are just the ones we know of. Vaccines that use this practice as a method for further production displays an overpowering disrespect for the remains of innocent babies who were denied the right to life and liberty. One of the most profound passages from God's Word states, “Now the word of the Lord came to me, saying, “Before I formed you in the womb, I knew you, and before you were born, I consecrated you; I appointed you a prophet to the nations.” With His words, God is emphasizing the value of life in a mother's womb and the care and devotion He holds for the preborn. Using vaccinations that capitalize on the deaths of innocent babies for incentives, infringes upon the teachings of my Lord and sacred beliefs I hold dear.[ECF No. 5-3 at 3].
Case law, including those cited by both parties, have consistently and repeatedly held that allegations like those made by Plaintiff here are sufficient to state a claim under Title VII for failure to accommodate a religious belief. As explained in Ellison, after dismissing the “body-as-a-temple” claims of several plaintiffs as discussed above:
Ellison's supplemental letter also included a paragraph concerning the use of “aborted fetal cell lines” in the development and testing of some of the vaccines. Dkt. 40-4 at 2. In that letter, he stated that he had a “sincerely held religious belief in the sanctity of human life” and that-because he “sincerely believe[d] that the use of these bodily remains renders these vaccines unclean,”-he could not comply with the policy for that reason. Id.
With respect to this claim, the Court finds that Ellison has adequately linked his objection to a sincerely held religious belief.
In his request, he refers to verses in the Christian Bible that, in his view, support the notion that “life begins at conception,” and he goes on to explain that, because “every life is sacred,” “[a]ny action that would . . . generate a future demand for fetal cell tissue, violates the core religious beliefs that [he] hold[s] dear.” Ellison continues that he believes his faith did not allow him to “benefit from a human being whose life was taken by the hands of another,” and thus, in his view, receiving the vaccine would amount to sin.2023 WL 6038016, at *6 (citations omitted)); see also Burns v. Asante Rogue Regional Med. Cntr., C/A No. 1:23-00857-MC, 2024 WL 712610, at *4 (D. Or. Feb. 21, 2024) (“Unlike the other plaintiffs, however, she also explains how taking the COVID-19 vaccine actually conflicted with her sincerely held religious beliefs. Ms. Stebbins specifically asserts that she objected to taking the COVID-19 vaccine because of ‘the use of fetal cells in the testing/development of vaccines and medicines.'”); Miller v. Charleston Area Med. Ctr., C/A No. 2:23-00340, 2023 WL 7549365, at *4 (S.D. W.Va. Nov. 14, 2023) (finding sincerely held religious beliefs where plaintiff argued that “partaking in a vaccine made from aborted fetuses makes him complicit in an action that offends his religious faith”); Gardner-Alfred v. Fed. Rsrv. Bank of New York, 651 F.Supp.3d 695, 721-22 (S.D.N.Y. 2023) (finding that the complaint sufficiently “alleges a nexus between the objection to immunization and their own religious beliefs” where one plaintiff alleged “there is a ‘moral duty to refuse the use of medical products, including certain vaccines, that are created using human cell lines derived from abortion' unless there are no alternatives available”); Aliano v. Twp. of Maplewood, C/A No. 22-5598-ES-AME, 2023 WL 4398493, at *7 (D.N.J. July 7, 2023) (“Though it is close . . . Giorgio adequately connected his anti-abortion beliefs to his religion and objection to Maplewood's COVID-19 vaccine mandate. In his religious exemption request, Giorgio identifies himself as a Christian and explains the ‘authority [he] adhere[s] to is The Holy Bible and that authority is derived from God.' His request further asserts, ‘as a Christian, I cannot according to my beliefs and conscience, use these products that have origins in abortion.' Finally, Giorgio identifies a Bible passage that provides the foundation for his belief that ‘the inmost being is sacrosanct,' which in turn provides the religious basis for his objection to abortion. Based on these statements, Giorgio's exemption request provides enough facts regarding his subjective personal beliefs, how those beliefs arise from his religious belief-system, and how those beliefs form the basis of his objection to the COVID-19 vaccinations to survive a motion to dismiss.”) (citations omitted)).
Plaintiff's allegations here stand in contrast to those where courts have dismissed similar claims based on insufficient allegations. See, e.g., Isaacs v. Bayhealth Med. Ctr., Inc., C/A No. 22-1468-RGA, 2024 WL 359244, at *4 (D. Del. Jan. 31, 2024) (“Plaintiff's exemption form states that COVID vaccines ‘very likely includes human tissue from another life' .... The exemption form, however, lacks any explanation tying his objection to vaccines that contain fetal cells to his religious beliefs. ‘The Complaint does not even identify why Plaintiff objects to the use of fetal cell lines in the development of the COVID-19 vaccine; it merely asserts that fetal cell lines were, in fact, used by vaccine developers.' Winans v. Cox Auto., Inc., 2023 WL 2975872, at *4 (E.D. Pa. Apr. 17, 2023) .... Plaintiff fails to adequately link his objection to the COVID-19 vaccines to religious beliefs regarding fetal cells.”); Kiel v. Mayo Clinic Health Sys. Se. Minnesota, C/A No. 22-1319 (JRT/ECW), 2023 WL 5000255, at *8 (D. Minn. Aug. 4, 2023) (“Certainly, many Christians who oppose abortion still receive vaccines. A religious opposition to abortion is different from an opposition to vaccines that were potentially developed using a fetal cell line. Because Kiel fails to tie her opposition to the vaccine to any particularized religious belief, the Court will dismiss her Title VII claim.”); Jackson, 2023 WL 9097854, at *5 (dismissing the plaintiff's religious discrimination claim, finding her beliefs were instead rooted in political, sociological, philosophical, and/or medical beliefs where guidance from her church stated it is morally acceptable to receive COVID-19 vaccines developed using fetal cell lines).
As such, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss as to Plaintiff's Title VII failure to accommodate claim, allowing Plaintiff's claim based on her objection to fetal cell lines to proceed.
Defendant requests as follows:
If the Court is inclined to find that Plaintiff can sufficiently connect her religious beliefs to her objection to the use of fetal cell lines reproduced in a laboratory and used at some point in the development of the vaccine, the Complaint should be dismissed without prejudice, allowing Plaintiff to amend her Complaint to include scientifically accurate information about exactly how fetal cell lines were gathered and used in the development of the vaccine. It cannot be that a plaintiff is allowed to premise a religious objection on the basis of her misunderstanding or misrepresentation of scientific facts which can be proven.[ECF No. 11 at 6 n.3]. The undersigned recommends denying Defendant's request at this time where such a fact-intensive inquiry is more appropriate at a later stage in this case. See, e.g., Gardner-Alfred v. Fed. Rsrv. Bank of New York, C/A No. 22-1585 (LJL), 2023 WL 6214863, at *17 (S.D.N.Y. Sept. 25, 2023) (“Also at deposition, however, Diaz could not recall being aware of any actual connection between aborted fetal cell lines and Covid-19 vaccines when she made her initial religious accommodation request purportedly due to concerns about the use of aborted fetal cell lines in the development, testing, and manufacturing of Covid-19 vaccines. That Diaz did not even inquire-and has no memory of ever learning-whether a medication she was taking was manufactured with or contains aborted fetal cells undermines her claim to have a genuine religious objection to the taking of the Covid-19 vaccine on the grounds that it is manufactured with or contains aborted fetal cells.”) (citation omitted)); see also Caspersen v. W. Union, LLC, C/A No. 23-00923-NYW-SBP, 2023 WL 6602123, at *9 n.5 (D. Colo. Oct. 10, 2023) (“While Western Union acknowledges that Plaintiff ‘linked his objection to a prolife stance,' it highlights that Plaintiff also ‘refused to attest that his prolife view extended to medication beyond the COVID-19 vaccine to other vaccines that use the same testing methods or common medications that have utilized fetal cell lines in confirmatory, quality-assurance, and/or other testing.' Insofar as Defendant requests that the Court weigh evidence or construe allegations in Defendant's favor, the Court cannot do so. Indeed, this sort of ‘fact intensive inquiry is more appropriate at a later stage' in this case.”) (citations omitted)).
2. Title VII Disparate Treatment Claim
The complaint asserts that Plaintiff was terminated “because of her religious beliefs and requests for accommodations based on her religion” and that she was “treated less favorably than similarly situated employees who did not hold the same religious beliefs.” [ECF 1-1 ¶¶ 42-43].
To state a plausible disparate treatment religious discrimination claim, an employee must plead and ultimately show that the employer “treated her differently than other employees because of her religious beliefs.” Chalmers, 101 F.3d at 1017 (emphasis in original); see also Abeles v. Metro. Washington Airports Auth., 676 Fed.Appx. 170, 174 (4th Cir. 2017) (listing elements of a Title VII prima facie case for a claim of disparate treatment based on religion as follows: “a plaintiff must show ‘(1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) different treatment'-which here means more severe discipline-'than similarly situated employees outside the protected class.'”) (citing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Cook v. CSX Transp. Co., 988 F.2d 507, 511 (4th Cir. 1993)).
Plaintiff has alleged she was treated the same as all other similarly-situated employees in that all employees were mandated to receive the COVID-19 vaccine. The complaint contains no allegation that any other employee received an accommodation-religious or otherwise-that allowed them to continue their employment with Defendant without offering proof that they had received the COVID-19 vaccine.
Notwithstanding, Plaintiff argues “Defendant's denial of all requests for religious accommodations and termination of all employees who requested religious accommodations without engaging in the interactive process give rise to an inference of unlawful discrimination sufficient to meet the fourth prong of a prima facie case for Title VII discrimination.” [ECF No. 9 at 1516]. However, Plaintiff cites only one distinguishable out-of-circuit case in support. See Camp, 2023 WL 4680797, at *6 (finding the plaintiff had sufficiently alleged disparate treatment including allegations that the defendants “approved only six of the forty-five requests for religious exemptions it received.”).
Here, Plaintiff has not alleged her “employer treated the employee more harshly than other employees of a different religion, or no religion, who had engaged in similar conduct.” Chalmers, 101 F.3d at 1017. Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss Plaintiff's Title VII disparate treatment claim.
3. Title VII Retaliation Claim
Plaintiff claims that Defendant “retaliated against [her] because of her requests for religious accommodations by terminating [her].” [ECF 1-1 ¶ 63]. However, Plaintiff was not terminated because she requested an accommodation, but rather because she no longer met the “condition of employment” that she receive the COVID-19 vaccine. Id. ¶¶ 33-34.
“To establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove ‘(1) that she engaged in a protected activity,' as well as ‘(2) that her employer took an adverse employment action against her,' and ‘(3) that there was a causal link between the two events.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)). “The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim . . . must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).
The parties disagree whether Plaintiff's request for a religious accommodation is a protected activity under Title VII. The court need not resolve this issue because Plaintiff has failed to plead that her request was the but-for cause of her termination where she, instead, pleads and argues in briefing that “she was terminated for failing to comply with the condition of employment [receiving the vaccine] in conflict with her religion.” [See ECF No. 9 at 6, see also ECF No. 1-1 ¶¶ 33-34].
The court rejects Plaintiff's argument that Defendant's but-for reason for her termination was her request for an accommodation, made months prior to her last day of employment, and that her failure to take the vaccine played no part in Defendant's decision. In evaluating Defendant's motion, this court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments” E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss Plaintiff's Title VII retaliation claim.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss [ECF No. 5], allowing only Plaintiff's Title VII failure to accommodate claim based on her objection to fetal cell lines to proceed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).