Opinion
3:22-cv-01306-JR
09-13-2023
SHERRY H. DETWILER, Plaintiff, v. MID-COLUMBIA MEDICAL CENTER, a Public Benefit Corporation; CHERI MCCALL, an individual; and DOES 1 THROUGH 50, inclusive, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Defendants Mid-Columbia Medical Center (“MCMC”) and Cheri McCall move to dismiss plaintiff Sherry Detwiler's Second Amended Complaint (“SAC”) pursuant to Fed.R.Civ.P. 12(b)(6) with prejudice. For the reasons stated below, defendants' motion should be granted and this case should be dismissed.
BACKGROUND
MCMC, a hospital located in The Dalles, Oregon, hired plaintiff on September 14, 2020, as a Privacy Officer and Director of Health Information. SAC ¶¶ 2, 11 (doc. 33). Plaintiff is “a practicing Christian who believes her body is a temple of the Holy Spirit” and “sincerely believes she has a religious duty to avoid defiling her temple by taking in substances that the Bible explicitly condemns or which could potentially cause physical harm to her body.” Id. at ¶ 18 (internal citation and quotations omitted).
“Starting in November 2020, Plaintiff worked remotely for stretches of varying lengths, none longer than ten days.” Id. at ¶ 15.
In August 2021, the Oregon Health Authority (“OHA”) enacted an administrative rule requiring healthcare workers to be vaccinated against Covid-19 no later than October 18, 2021. Id. at ¶ 10 (citing Or. Admin. R. 333-019-1010). While this rule allowed for religious or medical exemptions, it required employers to take steps to ensure unvaccinated employees did not increase safety risks to others, primarily patients and coworkers. In particular:
Employers of healthcare providers or healthcare staff, contractors and responsible parties who grant a medical or religious exception to the vaccination requirement in this rule must take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.Or. Admin. R. 333-019-1010(4).
On September 28, 2021, plaintiff requested a religious exemption from the OHA's vaccination requirement. SAC ¶ 21 (doc. 33). Among the reasons for her request, plaintiff cited the use of “abortion-derived cell lines” in developing the available Covid-19 vaccines. FAC Ex. A (doc. 33). MCMC approved plaintiff's exemption request but required her to wear an N95 mask while in the office and to submit to weekly antigen testing. SAC ¶¶ 22, 24 (doc. 33).
In regard to the antigen testing, plaintiff “again invoked her Christian beliefs concerning her body being a temple of God, requesting an alternative accommodation from MCMC” based on a belief that the nasal swab used in the antigen test is “dipped in ethylene oxide,” a “carcinogenic substance” that is “cancer[ous].” Id. at ¶¶ 25-27. Plaintiff further explained:
It is against my faith and my conscience to commit sin. Sin is anything that violates the will of God, as set forth in the Bible, and as impressed upon the heart of the believer by the Holy Spirit. In order to keep myself from sin, and receive God's direction in my life, I pray and ask God for wisdom and direction daily. As part of my prayers, I have asked God for direction regarding the current COVID testing requirement. As I have prayed about what I should do, the Holy Spirit has moved on my heart and conscience that I must not participate in COVID testing that causes harm. If I were to go against the moving of the Holy Spirit, I would be sinning and jeopardizing my relationship with God and violating my conscience . . .
Ethylene Oxide (EtO) is carcinogenic to humans. There is clear evidence that EtO is genotoxic and evidence supports a mutagenic mode of action, key precursor events are anticipated to occur in humans and progress to tumors, including evidence of chromosome damage in humans exposed to EtO.
This is important to note, because medical equipment is sterilized by a direct oxidation process which is predominantly EtO, exposure in the chlorohydrin process, this EtO is mixed with other chemicals.
The same EPA document states some of the cancers have a 15-year delay, however the multiplication of morphed DNA results in multiple cancerous states . . . As a Christian protecting my body from defilement according to God's law, I invoke my religious right to refuse any testing which would alter my DNA and has been proven to cause cancer. I find testing with carcinogens and chemical waste to be in direct conflict with my Christian duty to protect my body as the temple of the Holy Spirit.SAC Ex. C (doc. 33). Accordingly, plaintiff proposed that she be permitted to work remotely full time and submit to saliva testing through Oregon Health & Science University. SAC ¶ 30 (doc. 33).
“While MCMC ‘considered' Plaintiff's proposed accommodations, the deadline for compliance with the Vaccine Mandate - October 18, 2021 - came and went. As a result, MCMC placed Plaintiff on unpaid leave on October 19, 2021.” Id. at ¶ 31.
MCMC ultimately denied plaintiff's alternate accommodation requests. Id. at ¶¶ 32. As to plaintiff's request for full-time remote work, McCall noted that plaintiff's team was struggling under her supervision, citing “increased complaints and dissatisfaction from your team since you started to work remote.” SAC Ex. D (doc. 33). Concerning plaintiff's proposal that she submit to saliva testing only, “MCMC deemed it ‘impractical' because test results would not be available for 24 to 36 hours, and the Hospital claimed that it needed Plaintiff to be available on occasion for same-day reporting.” SAC ¶ 32 (doc. 33).
MCMC gave plaintiff until December 20, 2021, to agree to antigen testing or accept reassignment to another open position. Id. at ¶ 43. “When Plaintiff did neither, MCMC terminated her employment.” Id. at ¶ 44. MCMC subsequently hired an interim Director of Health Information, who is allowed “to work part-time . . . 100% remotely.” Id. at ¶ 45.
On August 31, 2022, plaintiff initiated this lawsuit. On November 4, 2022, plaintiff lodged her First Amended Complaint asserting claims for: (1) religious discrimination against MCMC under Title VII and Or. Rev. Stat. § 659A.030(1)(a); and (2) aiding and abetting against McCall under Or. Rev. Stat. § 659A.030(1)(g). On November 18, 2022, defendants filed a Rule 12(b)(6) motion in regard to the First Amended Complaint. On May 26, 2023, the Court finally resolved that motion in defendants' favor. Specifically, the Court found that plaintiff failed to state a claim because, under existing case law, her “allegations - which center on her belief that COVID-19 antigen tests are carcinogenic - fail to establish sincere religious opposition.” Detwiler v. MidColumbia Med. Ctr., 2022 WL 19977290, *4 (D. Or. Dec. 20, 2022), adopted by 2023 WL 3687406 (D. Or. May 26, 2023).
On July 19, 2023, plaintiff lodged her SAC, reasserting the same claims, clarifying that, “[w]hile [she] declined to submit to nasal swab testing, at least in part, due to medical and/or scientific judgment, she also exercised religious judgment” - i.e., her belief “that her body is a temple of the Holy Spirit [is] rooted in religion, as it is based on a biblical passage - namely, 1 Corinthians 6:19-20.” SAC ¶¶ 28, 56 (doc. 33). On July 27, 2023, defendants filed the present motion to dismiss the SAC. Briefing was completed in regard to that motion on August 18, 2023.
STANDARD OF REVIEW
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Defendants contend prejudicial dismissal is warranted because “the SAC demonstrates that Plaintiff's ‘religious' objection to COVID-19 testing is based on her secular/medical beliefs regarding perceived health risks associated with ethylene oxide” and, “[a]s the Court has already decided, this is not the sort of belief protected by Title VII or Oregon law.” Defs.' Mot. Dismiss 2 (doc. 34).
Plaintiff acknowledges that the factual underpinnings of her claims have remained essentially unchanged. See, e.g., Pl.'s Resp. to Mot. Dismiss 3-5 (doc. 36). She nonetheless opposes defendants' motion on the grounds that “‘the exercise of religion often involves not only the belief and profession but the performance of (or abstention from) physical acts,' including refraining from the use or ingestion of certain substances.” Id. at 2 (quoting Emp't Div., Or. Dep'tof Human Res. v. Smith, 494 U.S. 872, 877 (1990)). Additionally, plaintiff cites Bolden-Hardge v. Office of the Cal. State Controller, 63 F.4th 1215 (9th Cir. 2023), in support of the proposition that “the law leaves entirely to the adherent of a particular faith the judgment of whether the adherent must refrain from using a particular substance: Courts must not second-guess a former employee's assertion that a job-related duty burdens her sincerely held religious beliefs; instead, they must focus on whether the former employee has adequately alleged a conflict between her asserted beliefs and a job-related duty.” Id. Finally, plaintiff relies on a recent case - i.e., Camp v. L.A. Arena Co., 2023 WL 4680797 (C.D. Cal. June 15, 2023) - to intimate that allegations analogous to her own have been found sufficient to state a Title VII claim. Id. at 6, 10.
As an initial matter, the Court notes that none of the cases cited by plaintiff examined whether the belief at issue was a bona fide religious belief, as opposed to a secular or medical judgment. That is, Bolden-Harden exclusively concerned whether the plaintiff “adequately pleaded a conflict between her job requirements and religious beliefs.” Bolden-Hardge, 63 F.4th at 1222-24. And, in Camp, the defendant challenged the plaintiff's failure to accommodate claim solely on the grounds that he failed to meaningfully answer follow-up questioning in regard to his religious exemption request. Camp, 2023 WL 4680797 at *7. Smith, in turn, examined whether the Free Exercise Clause prohibited the application of Oregon drug laws to the ceremonial ingestion of peyote, such that the state could deny unemployment benefits for work-related misconduct based on use of that drug. Smith, 494 U.S. at 877-82; see also C.F. v. N.Y. City Dep't of Health & Mental Hygiene, 191 A.D.3d 52, 139 N.Y.S.3d 273, 290-92 (2020) (interpreting Smith to conclude that the defendant's vaccination requirement to control a measles outbreak did not violate the Free Exercise Clause). Thus, the Court does not find these cases to be particularly instructive in the present context. With that in mind, the Court turns to the substance of plaintiff's allegations.
I. Religious Discrimination Claims
Or. Rev. Stat. § 659A.030(1)(a) and Title VII, both make it unlawful for an employer to discriminate against an individual in the terms and conditions of employment because of religion. “Claims brought under this statute are analyzed under the same framework as claims brought under Title VII.” El v. United Parcel Serv., Inc., 2020 WL 2616397, *3 (D. Or. May 22, 2020).
To establish a prima facie case for religious discrimination based on a failure-to-accommodate, the plaintiff must demonstrate that: (1) she “had a bona fide religious belief, the practice of which conflicted with an employment duty”; (2) she “informed [her] employer of the belief and conflict”; and (3) “the employer discharged, threatened, or otherwise subjected [her] to an adverse employment action because of [her] inability to fulfill the job requirement.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). Where an employee requests an alternate accommodation, she must plead sufficient facts to evince the need for that accommodation also stems from a bona fide religious belief. Cf. Tiano v. Dillard Dep't Stores,Inc., 139 F.3d 679, 682 (9th Cir. 1998). If the plaintiff “makes out a prima facie failure-to-accommodate case, the burden then shifts to [the defendant] to show that it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship.” Peterson, 358 F.3d at 606 (citations and internal quotations omitted).
The Court construes plaintiff's religious discrimination claims as emanating from defendants' denial of her accommodation request, as opposed to the granting of her religious exemption with conditions. Indeed, courts have routinely held that allowing hospital staff to be present without vaccination poses an undue hardship. See, e.g., Brox v. Hole, 590 F.Supp.3d 359, 367 (D. Mass. 2022).
Concerning the first prima facie element, Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” Tiano, 139 F.3d at 681 (quoting 42 U.S.C. § 2000e-2(a)(1)). Nevertheless, “Title VII does not protect secular preferences.” Id. at 682. Specific to Covid-19 vaccination mandates, the U.S. Equal Employment Opportunity Commission (“EEOC”) has provided guidance to employers navigating claimed religious exemptions, explaining that, “although Title VII prohibits employment discrimination based on religion, an employee's request for an exemption from a COVID-19 vaccination mandate can be denied on the ground that the employee's belief is not truly religious in nature[.]'” Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1180 (9th Cir. 2021). The EEOC's guidance notes objections that “are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine)” are not protected by Title VII. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Oct. 25, 2021), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L. “However, overlap between a religious and political view does not place it outside the scope of Title VII's religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.” Id.
Federal district courts have grappled with the contours of the first prima facie element. Title VII broadly defines religion and “American courts are loath to tell a person that his interpretation of his faith is a wrong one.” Hittle v. City of Stockton, 2022 WL 616722, *5 (E.D. Cal. Mar. 2, 2022), aff'd, -- F.4th --, 2023 WL 4985718 (9th Cir. 2023). At the same time, courts have generally been hesitant to find broad statements of religious opposition sufficient to state a viable claim. See Kather v. Asante Health Sys., 2023 WL 4865533, *5 (D. Or. July 28, 2023) (“vague expressions of sincerely held Christian beliefs alone cannot serve as a blanket excuse for avoiding all unwanted employment obligations” and a “‘threadbare reference' to religious beliefs is insufficient at the motion to dismiss stage”); Bolden-Hardge, 63 F.4th at 1223 (while “the burden to allege a conflict with religious beliefs is fairly minimal,” courts are not required to “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value”).
Accordingly, Title VII claims surrounding Covid-19 vaccine mandates and corresponding accommodations have necessitated that courts undertake the delicate task of differentiating between what beliefs are religious and which are not. Cf. Wisconsin v. Yoder, 406 U.S. 205, 21516 (1972) (“the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests”); see also Mason v. Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 51 (2d Cir. 1988) (“[a]n individual's assertion that the belief [is religious does not] automatically mean that the belief is religious . . . a threshold inquiry into the religious aspect of particular beliefs and practices cannot be avoided if we are to determine what is in fact based on religious belief, and what is based on secular or scientific principles”) (collecting cases).
To that end, virtually every court examining the precise belief invoked by plaintiff has held that Title VII's protections do not apply. See Finkbeiner v. Geisinger Clinic, 623 F.Supp.3d 458, 465-66 (M.D. Pa. 2022) (granting the defendant's Rule 12(b)(6) motion where the plaintiff asserted a religious objection to antigen testing on the grounds that ethylene oxide is harmful, explaining that her “opposition stems from her medical beliefs”); Ulrich v. Lancaster Gen. Health, 2023 WL 2939585, *4-6 (E.D. Pa. Apr. 13, 2023) (the plaintiff's objection to nasal testing on the basis that “her body is ‘a temple of the Holy Spirit'” was inadequate to render her “clearly state[d] medical concerns” about the “harmful substances” purportedly contained in those tests actionable under Title VII); Ellison v. Inova Healthcare Servs., 2023 WL 4627437, *5 (E.D. Vir. July 19, 2023) (“exemption requests predicated fundamentally on concerns with [safety] and [the plaintiffs'] right to bodily integrity - even if based on the belief that [the plaintiff's] body is a temple and ratified by prayer - are fundamentally medical judgments [and] not matters of religious belief”) (citation and internal quotations omitted); Passarella v. Aspirus, Inc., 2023 WL 2455681, *5-6 (W.D. Wis. Mar. 10, 2023) (dismissing Title VII claims where the plaintiffs sought religious exemptions on the basis “that [their bodies were each] a temple of the Holy Spirit,” concluding these are “personal judgments about vaccine safety and not . . . religious reasons . . . the use of religious vocabulary does not elevate a personal medical judgment to a matter of protected religion”).
Although not cited by plaintiff, the Court has identified two cases where religious discrimination claims surrounding allegations that “my body is a temple” have survived a motion to dismiss -i.e., Bordeaux v. Lions Gate Entm't, Inc., 2022 WL 19076668 (C.D. Cal. Dec. 28, 2022), and Aliano v. Township of Maplewood, 2023 WL 4398493 (D. N.J. July 7, 2023). However, both of these cases concerned the denial of vaccine exemption requests, as opposed to proffered accommodations, and the plaintiff in Bordeaux also specifically invoked her objection to the use of “aborted fetal cells.” Bordeaux, 2022 WL 19076668 at *2, 7-8. Additionally, the relevant plaintiff in Aliano appeared to oppose the introduction of any foreign substance into his body, as opposed to only those that he found harmful based on personal or scientific judgments. Aliano, 2023 WL 4398493 at *8.
Indeed, in the context of a Title VII claim challenging the denial of a religious exemption request to Covid-19 vaccination, the U.S. District Court for the Western District of Wisconsin explained:
[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 [the plaintiff believes] that the vaccine defiled her body because it was unhealthy or unsafe, that would be a medical objection, not a religious objection. 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., 2023 WL 2662899, *2 (W.D. Wis. Mar. 28, 2023) (internal citations omitted); see also Geerlings v. Tredyffrin/Easttown Sch. Dist., 2021 WL 4399672, *7-8 (E.D. Pa. Sept. 27, 2021) (“[r]eligious adherents often profess that faith inspires much of their secular lives, but those activities are still secular . . . it takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious”).
To the extent plaintiff separately challenges MCMC's proffered accommodations as unreasonable in light of the alternatives she proposed, her argument is unpersuasive. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (Title VII “directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation” and there is “no basis . . . for requiring an employer to choose any particular accommodation”); see also Reichert v. Infusion Partners, LLC, 2023 WL 4685377, *4 (E.D. La. July 21, 2023) (rejecting the plaintiff's contention “that the only reasonable accommodation would have been a saliva test,” denoting “it is clear that Defendants reasonably accommodated her [religious exemption] request [by offering] nasal swab [testing]”).
Here, the Court acknowledges the SAC's attempts to tie plaintiff's belief that her “body as the temple of the Holy Spirit” more explicitly to the potential harm caused by carcinogens. However, the well-plead allegations (along with plaintiff's actual communications with MCMC) continue to show that plaintiff's decision to refuse antigen testing was based on her personal preferences. SAC Ex. C (doc. 33); see also SAC ¶¶ 26-27 (doc. 33) (“[plaintiffs research into the nasal swab test uncovered information from multiple sources indicating that [ethylene oxide] is a carcinogenic substance. Not wanting to take [ethylene oxide] into her body and run the risk of developing cancer, [she] invoked her Christian beliefs concerning her body being a temple of God”). Stated differently, 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. SAC ¶¶ 26-28, 56 (doc. 33).
In sum, the SAC does not identify any bona fide religious observance, practice, or belief that MCMC acted in contravention of by granting plaintiff a religious exemption to OHA's vaccine mandate but otherwise requiring plaintiff to wear a high quality mask, take weekly antigen tests, and continue to occasionally work in-person.
II. Aiding and Abetting Claim
Or. Rev. Stat. § 659A.030(1)(g) provides, in relevant part, that it is an unlawful employment practice for “any person, whether an employer or an employee, to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” However, the plaintiff must first establish a violation of the underlying Chapter 659A laws to bring a cognizable aiding and abetting claim. Dinicola v. Serv. Emp. Int'l Union, 2011 WL 3477074, *7-8 (D. Or. Aug. 5, 2011).
As addressed in Section I, plaintiff has failed to allege sufficient facts to state a plausible religious discrimination claim. Defendants' motion should therefore be granted as to plaintiff's claim under Or. Rev. Stat. § 659A.030(1)(g). By extension, dismissal of any purported cause of action against the ill-defined 50 Doe defendants is also appropriate.
Finally, although plaintiff requests leave to amend via her response, she does not set forth any additional facts that cure (or, for that matter, meaningfully address) the deficiencies previously identified by the Court. Further, the SAC confirms that her rejection of MCMC's proposed accommodations were, “at least in part, due to medical and/or scientific judgment.” SAC ¶ 28 (doc. 33). In other words, despite being afforded the opportunity to do so, plaintiff alleged no new facts related to her religious discrimination claims and her response intimates that no such facts exist. Accordingly, the Court finds that dismissal without leave to amend is appropriate. Cf. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“where the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, the district court's discretion to [dismiss the complaint with prejudice] is particularly broad”) (citation and internal quotations omitted); see also Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally”); Blackwell v. Lehigh Valley Health Network, 2023 WL 5807840, *7-10 (E.D. Pa. Sept. 7, 2023) (dismissing the plaintiff's amended religious discrimination claim under virtually identical circumstances).
RECOMMENDATION
For the reasons stated herein, defendants' Motion to Dismiss (doc. 34) should be granted with prejudice and judgment should be prepared dismissing this case. The parties' requests for oral argument are denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.