Opinion
3:22-cv-01790-YY
05-30-2023
DOUG KERKERING, HANNAH THIBODO, and WANDA ROZWADOWSKA, Plaintiffs, v. NIKE, INC., Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiffs, who are former employees of defendant Nike, Inc., assert discrimination claims arising under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) based on defendant's policy mandating that employees vaccinate against COVID-19.
Jurisdiction is proper pursuant to 28 U.S.C. § 1331 because this action arises under federal statutes.
Defendant has filed this motion to dismiss (ECF 18) under Federal Rule of Civil Procedure 12(b)(6), contending that plaintiffs failed to plead necessary elements of their claims. Namely, defendant argues that plaintiffs Kerkering and Thibodo have not articulated disabilities, plaintiff Thibodo failed to notify defendant of her need for an accommodation, and plaintiff Rozwadowska has not alleged an adverse employment action.
For the following reasons, defendant's motion should be GRANTED IN PART, and DENIED IN PART.
I. Motion to Dismiss Standard
To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain sufficient non-conclusory factual allegations to state a claim for 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)). This requires that the plaintiff plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint need not contain “detailed factual allegations,” a pleading that offers only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” is not sufficient. Id. (quoting Twombly, 550 U.S. at 555). In the absence of a cognizable legal theory or sufficient factual allegations to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). The court must accept all allegations of material facts as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
II. ADA Claims
A. Refusal to be Vaccinated as a Disability
Plaintiffs Kerkering and Thibodo assert that defendant violated the ADA by firing them because of a perceived disability-i.e., a deficient immune system-based on their decision not to vaccinate against COVID-19. Am. Compl. ¶¶ 23-25, ECF 15.
Under the ADA, employers are prohibited from discriminating against qualified individuals on the basis of a disability. 42 U.S.C. § 12112(a). To state a claim under the ADA, the plaintiff must show that “(1) she is a disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can perform the essential functions of her job; and (3) [her employer] terminated her because of her disability.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). “The term ‘disability' means, with respect to an individual-(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). A person is “regarded as having” a disability if the person “has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(a).
Courts have invariably rejected the theory that an individual's decision to forgo a vaccination constitutes a disability under the ADA. In reaching these decisions, courts have emphasized that individuals have agency in deciding to forgo a vaccination, which is starkly different from the fact that “a disability under the ADA is not something a person chooses.” See, e.g., Johnson, 2023 WL 2163774 at *6.
See, e.g., Cunningham v. Univ. of Haw., No. 22-cv-00504 HG-WRP, 2023 WL 1991783, at *4, 10 (D. Haw. Feb. 14, 2023) (rejecting the theory that the defendant regarded the plaintiff as impaired because he was unvaccinated); Schneider v. Cty. of Fairfax, No. 1:22-cv-871, 2023 WL 2333305, at *4-5 (E.D. Va. Mar. 2, 2023) (same); Sharikov v. Philips Med. Sys. MR Inc., No. 1:22-cv-00326, 2023 WL 2390360, at *7-8 (N.D.N.Y. Mar. 7, 2023) (same); Gallo v. Wash. Nat'ls Baseball Club, LLC, No. 22-cv-01092, 2023 WL 2455678, at *4 (D.D.C. Mar. 10, 2023) (“Plaintiff thus has failed to state a ‘regarded as' disabled claim because he has not alleged that Defendant perceived him to have a disability at the time of his termination. Every court that has considered this question has held the same.”) (internal citation omitted); Johnson v. Mount Sinai Hosp. Grp., Inc., No. 22-CV-2936, 2023 WL 2163774, at *6 (E.D.N.Y. Feb. 22, 2023) (“Nor is the plaintiff's vaccination status a disability. The plaintiff cites no authority to support that position, nor is the Court aware of any.”); Leggo v. M.C. Dean, Inc., No. 1:22-cv-374, 2023 WL 1822383, at *4 (E.D. Va. Feb. 7, 2023) (“[T]he company's decision to require all employees to attest to their vaccination status ‘does not plausibly reflect a determination or belief that any of its employees are disabled or impaired.'”) (citing Jorgenson v. Conduent Transp. Sols., Inc., No. SAG-22-01648, 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023)); Speaks v. Health Sys. Mgmt., No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *5 (W.D. N.C. Aug. 17, 2022) (“Refusing to get a vaccine required by an employer is not itself an ‘impairment' of any sort. Rather, it reflects a personal choice by Speaks that, while hers to make in this context, cannot be considered an impairment under the ADA.”); Monegas v. City & Cty. of S.F. Dep't of Pub. Health, No. 22-cv-04633-JD, 2023 WL 3198224, at *1 (N.D. Cal. May 1, 2023) (“The [complaint] suggests only that [the defendant] may have regarded unvaccinated employees as a potential infection risk to others. That is not within the established understanding of a disability for ADA purposes.”); see also Def.'s Notice Suppl. Authority, ECF 25 (citing additional cases).
Plaintiffs urge the court to disregard the fact that “no court has yet construed the lack of COVID vaccination to be an actual or perceived disability under the ADA.” Resp. 14, ECF 21. Plaintiffs contend that, in light of the fears and politicization surrounding COVID vaccination, recognizing the decision not to vaccinate as a disability furthers the ADA's goal of counteracting “society's accumulated myths and fears about disability and disease.” Id. (citing Sch. Bd. Of Nassau Cnty. v. Arline, 480 U.S. 273, 284 (1987)). But the reasoning relied upon in the overwhelming number of cases that have addressed this issue is more persuasive. A person is not perceived as having, and does not have, an impairment under the ADA by virtue of the person's unvaccinated status. To hold otherwise would break with the recognized understanding of the kinds of conditions the ADA seeks to encompass, as illustrated by the nationwide consensus among federal courts. Thus, Kerkering and Thibodo's claims of disability discrimination premised upon the decision not to vaccinate against COVID-19 are not cognizable.
B. Thibodo's Immune Condition
Plaintiff Thibodo asserts an additional theory of liability based on an “actual disability, an immune condition, that prevented her from taking the COVID-19 shot.” Am. Compl. ¶ 26, ECF 15. Thibodo alleges that defendant was aware that she had an immune condition and, based on her condition, granted her the accommodation of a reduced working schedule until June 15, 2022, but did not attempt to accommodate her inability to be vaccinated. Id. at ¶ 18. Defendant argues that because Thibodo failed to inform defendant that her condition prohibited vaccination or that she required an accommodation to the vaccine mandate, defendant had no obligation to grant her an accommodation under the ADA. Mot. Dismiss 10-11, ECF 18. Thibodo counters that defendant's knowledge of her disability, and subsequent lack of effort to accommodate her inability to be vaccinated, render defendant liable. Resp. 17-18, ECF 21. Thibodo further contends that defendant failed to satisfy its obligation to engage in good faith discussions regarding a vaccine exemption. Id.
An employer is liable for failing to provide reasonable accommodations for the known limitations of employees with disabilities “if the employer ‘receives adequate notice'” of the employee's disability and the need for an accommodation. Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (quoting 42 U.S.C. § 12112(b)(5)(A)); see also Downey v. Crowley Marine Services, Inc., 236 F.3d 1019, 1023 n.6 (9th Cir. 2001) (determining that, unlike Washington's anti-discrimination statute, which “impose[d] a heightened duty on employers in that simple notice of an employee's disability” triggered a responsibility to accommodate, the ADA required notice of both the employee's disability and the desire for accommodation). An exception exists only where the employee is “unable to make such a request” and the employer “knows of the existence of the employee's disability,” whereupon “the employer must assist in initiating the interactive process.” Id. Once the employer receives notice, the employer has an obligation to “engage in an interactive process” to reach a reasonable accommodation. Id. This is a “continuing duty” that “extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” Humphrey v. Mem l Hosps. Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001) (internal quotations omitted).
Thibodo has pled that defendant knew of her immune condition and that she required a reduced work schedule to accommodate her condition. Am. Compl. ¶¶ 18, 26, ECF 15. Further, Thibodo and defendant apparently engaged in an interactive process, which produced defendant's decision to grant an accommodation of reduced hours. Id. Thibodo has not, however, alleged that she requested an accommodation to the vaccine mandate because of her immune condition, or that defendant otherwise knew that Thibodo needed such an exemption. To hold an employer liable for failing to ascertain independently, apart from any suggestion from the employee, that an accommodation is needed is completely at odds with the interactive process and “cooperative problem-solving” anticipated by the ADA. Humphrey, 239 F.3d at 1138. Additionally, Thibodo has not asserted that she was unable to request an accommodation to the vaccine mandate. Thus, Thibodo has not alleged that she provided defendant with adequate notice and her alternate theory of liability under the ADA based on her actual disability fails.
At the hearing on defendant's motion to dismiss, Thibodo's counsel represented for the first time that Thibodo informed her supervisor that her immune condition prevented vaccination and requested an accommodation to the vaccine mandate, and that defendant denied that request. These factual allegations, if added to the complaint, would adequately state a claim for relief, and such an amendment is permissible at this early stage of the proceedings. See FED. R. CIV. P. 15(2) (“The court should freely give leave when justice so requires.”).
III. Title VII Claims
A. Failure to Accommodate
Title VII requires employers to accommodate employees' “religious beliefs unless doing so would impose an undue hardship.” Bolden-Hardge v. Office of the Cal. State Controller, 63 F.4th 1215, 1222 (9th Cir. 2023) (citing 42 U.S.C. § 2000e-2(a)(1)). To plead a failure to accommodate claim, an employee “must establish a prima facie case by proving that (1) he had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements.” Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).
Rozwadowska asserts that defendant failed to accommodate her religious beliefs when it twice denied her request for a religious exemption to the vaccine mandate and did not explore possible accommodations. Am. Compl. ¶¶ 16, 34, ECF 15. Rozwadowska alleges that, under the threat of termination, she took the COVID vaccine “at the last minute to save her job.” Id. at ¶ 34. Then, several hours after the deadline by which defendant instructed employees to be vaccinated, defendant informed Rozwadowska that it would grant her a religious accommodation. Id.
It is uncontested that Rozwadowska's allegations satisfy the first two elements of this test. Instead, defendant moves to dismiss Rozwadowska's failure to accommodate claim on the basis that the mere “[e]xistence of” a mandatory vaccination policy cannot be characterized as threatened discharge. Mot. Dismiss 13-14, ECF 18; Reply 5, ECF 23. Rozwadowska responds that defendant's denial of her religious accommodation, refusal to discuss any reasonable alternative accommodations, and threats of termination if she did not comply with the vaccine mandate satisfy her burden to show “threatened . . . discriminatory treatment.” Resp. 20, ECF 21; Am. Compl. ¶¶ 33-34, ECF 15.
Contrary to defendant's argument, Rozwadowska's claim is based on more than the existence of a mandatory vaccination policy. C.f. Burcham v. City of L.A., 562 F.Supp.3d 694, 708 (C.D. Cal. 2022) (dismissing Title VII claim where plaintiffs had not alleged that defendants had, or were likely to have, denied plaintiffs' requests for accommodation). Rozwadowska alleges that she availed herself of the accommodation request procedure twice and was denied an exemption to the mandate and the opportunity to discuss an alternative reasonable accommodation. At that point, with the real threat of termination looming, Rozwadowska made the choice to compromise her religious beliefs in order to preserve her employment. These allegations are sufficient to make out a prima facie showing of threatened discharge.
After the hearing on the motion, plaintiffs' counsel pointed the court to a contemporaneous decision issued by the Ninth Circuit involving claims of religious discrimination stemming from an employer's COVID-19 vaccine policy. Pls.' Notice Suppl. Authority, ECF 27 (citing Keene v. City & Cnty. Of San Francisco, No. 22-16567, 2023 WL 3451687 (9th Cir. May 15, 2023)). Despite the related subject matter, Keene concerns issues that are not contested in this case. See id. at *2-3 (discussing the validity of the employees' sincerely-held religious beliefs, the scope of irreparable harm and the proper balance of equities in evaluating the public's interests).
B. Disparate Treatment
To state a prima facie case of disparate treatment, a plaintiff must show that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). Whereas threatened action is sufficient to show discrimination under a failure to accommodate theory, a disparate treatment theory imposes a higher burden, requiring allegations of actual adverse action. Id. An adverse employment action is one that “materially affect[s] the compensation, terms, conditions, or privileges of . . . employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1126 (9th Cir. 2000)). A “wide array of disadvantageous changes in the workplace constitute adverse employment actions,” including “transfers of job duties and underserved performance ratings,” “dissemination of an unfavorable job reference,” “exclusion from meetings, seminars, and positions that would have made [an employee] eligible for salary raises,” denial of secretarial support, and “a more burdensome work schedule.” Ray v. Henderson, 217 F.3d 1234, 1240-41 (9th Cir. 2000) (internal quotations omitted) (collecting cases). The failure to provide a reasonable accommodation may constitute an adverse employment action. See Knox v. City of Portland, 543 F.Supp.2d 1238, 1247 (D. Or. 2008) (“By refusing to oblige plaintiff's reasonable requests for an accommodation that plaintiff had previously been allowed, defendant adversely affected plaintiff's employment.”); see also, in the ADA context, Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232 (9th Cir. 2003) (“On the face of the ADA, failure to provide reasonable accommodation to an otherwise qualified individual with a disability constitutes discrimination.”); Ravel v. Hewlett-Packard Enter., 228 F.Supp.3d 1086, 1093 n.1 (E.D. Cal. 2017) (“[I]f neither alternative offered by defendant is ‘reasonable,' defendant's denial of plaintiff's request would constitute an ‘adverse employment action.'”).
It is appropriate to look to jurisprudence on ADA claims to inform the analysis of Title VII claims. See Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840, 850 (9th Cir. 2004) (applying definition of “adverse employment action” from Title VII case to analyze ADA claim). “[R]etaliation claims under Title VII, [and] a retaliation claim under the ADA [are] analyzed under the same framework.” Id. at 850 n.5.
Rozwadowska's disparate treatment theory is based on defendant's denial of her request for a religious exemption to the vaccine mandate, and defendant's decision to grant religious exemptions to other employees, including employees who “reject all medicine” and oppose the “vaccine's use of fetal cell lines.” Am. Compl. ¶¶ 40, 42, ECF 15. Defendant's primary defense is, again, that Rozwadowska has failed to allege an adverse employment action. Mot. Dismiss 12, ECF 18. Defendant also challenges Rozwadowska's suggestion that she was constructively discharged because defendant's vaccination policy created “intolerable working conditions.” Mot. Dismiss 12-13, ECF 18.
At this stage, Rozwadowska's allegations as to defendant's denial of her religious accommodation request and refusal to explore reasonable alternatives are sufficient to show an adverse employment action. Indeed, defendant's eventual decision to grant Rozwadowska the accommodation she sought underscores the reasonableness of the request. On its face, this appears to be a denial of a reasonable request for accommodation, which is actionable in the Ninth Circuit. See Kaplan, 323 F.3d at 1232. Furthermore, defendant does not dispute the sufficiency of Rozwadowksa's allegations as to the other elements of the disparate treatment claim-it is undisputed that Rozwadowska has alleged that she is a member of a class of employees with Catholic beliefs, she was qualified to perform her job, and she was treated differently from employees with other religious beliefs. Rozwadowska has sufficiently alleged a claim of disparate treatment based on defendant's denial of her request for an exemption to the vaccine mandate and refusal to provide a reasonable accommodation.
RECOMMENDATIONS
Defendant's Motion to Dismiss (ECF 18) should be granted in that plaintiffs Kerkering and Thibodo's First Claim for Relief, based on the theory that defendant regarded them as disabled because of their vaccination status, should be dismissed for failure to state a cognizable claim. However, Thibodo should be allowed to amend the complaint to allege that she informed her supervisor that her disability prevented her from being vaccinated and that she requested an accommodation to the vaccine mandate, which was denied. The motion to dismiss should be denied as to the Second and Third Claims alleged by plaintiff Rozwadowska.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, June 13, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.