Opinion
C. A. 2:22-cv-04254-DCN-MHC
07-19-2024
James Romer, Plaintiff, v. City of North Charleston, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERY UNITED STATES-MAGISTRATE JUDGE
In this employment discrimination case, James Romer (“Plaintiff” or “Romer”) alleges religious discrimination and retaliation leading to his wrongful termination, which occurred after he refused the COVID-19 vaccine. Plaintiff brings this action against his former employer, the City of North Charleston (“Defendant” or the “City”).
Before the Court is Defendant's Motion for Summary Judgment (“Motion”), ECF No. 37, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 42, and Defendant filed a Reply, ECF No. 46. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND
Plaintiff worked as a Fire Equipment Operator/Engineer for the City's Fire Department for over fourteen years. Exhibit 2, Pl. Dep. 15:24-16:9, ECF No. 37-4; Pl. Decl. at 5 ¶ g, ECF No. 42-11; Job Description, ECF No. 42-12.
A. COVID-19 Vaccination Requirement
On September 1, 2021, then Mayor R. Keith Summey (“Mayor Summey”), “in his capacity as the City of North Charleston's chief executive, signed and issued Executive Order Number 2021-0001 (the ‘Executive Order').” Bauer v. Summey, 568 F.Supp.3d 573, 582-83 (D.S.C. 2021); see ECF No. 42-3. The Executive Order imposed “a mandatory COVID-19 vaccine requirement on all City of North Charleston employees, volunteers, and interns, whether working on a full or part-time schedule.” Bauer, 568 F.Supp.3d at 582-83. The Executive Order mandated that compliance “was a condition of continued employment” and set the compliance date for November 5, 2021. Id.
The Executive Order was “published to all [City] employees” and required that “all employees be fully vaccinated or have submitted a request for an exemption by November 5, 2021.” Id. The Executive Order further required a process for employees to “request an exemption based on medical need or religious objection,” and it provided “for temporary deferral of the vaccine mandate for any employee on extended leave, including under the Family and Medical Leave Act or military leave, at the time of the effective date, and under other specified circumstances.” Id.
Mayor Summey testified that he instituted the Executive Order because:
[j]ust the facts of the matter where we were -- police officers and firefighters, especially, have much greater contact with the general public and not really by choice, sometimes. And so I was trying to make sure that not only our police officers were protected as much as possible, but also citizens in which they came in contact with.
Exhibit 13, Summey Dep. 6:3-9, ECF No. 37-15. He further testified that, when instituting the Executive Order, he believed the Executive Order was necessary for the City to stay “fully staffed” and to assist with preventing the disruption COVID-19 was causing the City. Id. at 6:13-15. He testified that the City
[c]an't operate without having a certain number of individuals on a firetruck to answer a fire call because of safety standards. Law enforcement, we have to have ample people to back up the officers, when they go on certain types of calls. And it's - it's just utterly important that we have the number of people per shift operating that we can provide the services to the community.Id. at 17:12-20.
Moreover, Mayor Summey considered the medical, first responder function the City's fire department serves: “I would say the majority of the calls are actual medical calls for accidents or anything that happens that people could be injured. We - our first responders -- a large number of our firefighters are certified in giving initial [medical] service.” Id. at 17:25-18:4.
B. Plaintiff's Request for Religious Accommodation and Review by the City
On or about September 17, 2021, Plaintiff submitted his Request for Religious Exemption/Accommodation, in which he stated:
I have been a devoted Christian for the past 43 years and have been committed to following His work, the Bible. My sincerely held Christian beliefs prevent me from receiving the Covid vaccines. Human life is sacred and GOD created the human body and it's human immune system as he created it.
The covid vaccines interfere with the function of the immune system in which HE created. Therefore, the process of how the vaccines interfere is a violation of GODS will for humanity. And it is my beliefs that I cannot take these vaccines in good faith.
Exhibit 7, ECF No. 37-9.
The City subsequently reviewed Plaintiff's request, at the same time the City reviewed other requests for a religious accommodation. Exhibit 8, Wimberly Dep., 7:8-12, ECF No. 37-10. When reviewed by the City, the City made no determination--and made no attempt to reach such determination--whether the religious beliefs expressed by those requesting accommodation were either religious or sincere. Instead, the City's decision to deny accommodation to firefighters and police officers was position-based only. The City did not spend time reviewing the reasons expressed by those requesting religious accommodation from the Executive Order Id. at 8:11-15; Exhibit 9 - King Dep., 17:11-25, ECF No. 37-11.
C. Denial of Plaintiff's Request for Religious Accommodation
On or about November 18, 2021, Plaintiff received a Religious Exemption/Accommodation Denial memorandum from the City, notifying him of the reasons his request for accommodation was denied:
First, the nature of your duties as a firefighter, regardless of rank, is such that the alternative methods of preventing spread of COVID are not practical. There is a constant potential for emergency situations during which you will not be able to wear a mask and/or maintain six feet of distance between yourself and citizens and other fire personnel This is particularly true when you are running medical calls. The fact that NCFD has experienced so many COVID-related absences during recent months despite the department's best effort at using those tools makes it clear those measures were not sufficient.
Second, while there are few positions within the NCFD with limited contact with others and no medical calls, those positions are few and far between, and the large number of fire personnel requesting religious accommodation makes it impossible to transfer everyone with that request to such a position.
Third, the next most obvious accommodation method - weekly testing - is not feasible because the Fire Department must operate on a 24/7 basis such that are [sic] subject to being called upon to perform unscheduled work to ensure proper coverage. It is not possible to establish a weekly testing date that can accommodate that, and, for obvious reasons, the City does not have the option of not being prepared to respond in an emergency because employees have not submitted weekly test results.
Fourth, a significant percentage of the City's fire personnel requested religious exemptions and accommodations. The administrative complexity and cost of establishing a procedure and paying someone to maintain it and monitor compliance for that many fire suppression personnel would impose an undue burden on the Department and the City.
Finally, the law only requires that employers attempt to accommodate a sincerely held religious belief. We note there were circumstances giving rise to questions about the sincerity of some of the beliefs proffered, and the City reserves all arguments on that issue. However, we need not address that at this time because the factors discussed above would prohibit accommodation regardless.
Exhibit 10, ECF No. 37-12. Plaintiff was given until Friday, December 3, 2021, to comply with the Executive Order. Id.
As of December 1, 2021, Plaintiff had not complied with the Executive Order and, therefore, the City issued Romer a Notice of Loss of Eligibility to Work and, subsequently, suspended Plaintiff without pay as of the end of his shift on December 3, 2021. Exhibit 11, ECF No. 37-13.
By letter dated December 10, 2021, Plaintiff's employment was terminated for failure to comply with the City's Vaccination ManDated:
As you know, you failed to come into compliance with the City's Vaccination Mandate policy by your final compliance date of December 3, 2021. Rather than end your employment at that time, the City placed you in an unpaid leave status for a grace period of seven days, through December 10, 2021. You were advised that, should you choose to use that time to receive at least one vaccine dose and submit proof of that to the City, you could resume your employment.
Your seven-day grace period has now ended, and you have not provided the City with any information indicating that you plan to comply with our policy. Accordingly, this is to notify you that, effective immediately, we are separating you from employment with the City due to your failure to comply with our policy....
If, in the future, you decide to comply with the City's policy, you are eligible to apply for re-hire, but you will need to apply as an external applicant and will be subject to our normal hiring process.
Exhibit 12, ECF No. 37-14.
D. Post Termination of Employment
On July 4, 2022, Plaintiff filed his Charge of Discrimination (the “Charge”) with the U.S. Equal Employment Opportunity Commission (“EEOC”). Exhibit 3, ECF No. 37-5; see Exhibit 4, ECF No. 37-6. The EEOC subsequently issued a Determination and Notice of Rights letter dated September 29, 2022. Exhibit 5. ECF No. 37-7.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial,” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
In his Amended Complaint, Plaintiff asserts the following claims: (1) religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); and (2) retaliation in violation of Title VII. ECF No. 25. The City now moves for summary judgment on the following bases: (1) Plaintiff's claims are barred by res judicata; (2) Plaintiff cannot present sufficient evidence to support his claims and allegations, including a prima facie case or sufficient evidence of pretext; and (3) the City can show granting Plaintiff's requested religious accommodation created an undue hardship. ECF No. 37-1 at 1.
For the reasons set forth below, the undersigned finds that Defendant is entitled to summary judgment on Plaintiff's claims. Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted.
I. RES JUDICATA
The City moves for summary judgment as to all of Plaintiff's causes of action based on the doctrine of res judicata. “Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (internal quotation marks omitted) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)); see Clement v. Spartanburg Steel Prods., Inc., No. 7:22-cv-0173-MGL-KFM, 2022 WL 19266406, at *4 (D.S.C. Dec. 2, 2022), report and recommendation adopted, 2023 WL 2655183 (D.S.C. Mar. 27, 2023). “By precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, res judicata encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Pueschel, 369 F.3d at 354 (internal quotation marks omitted) (citing Brown v. Felsen, 442 U.S. 127, 131 (1979)).
A. Previous Litigation Challenging COVID-19 Vaccination Requirement
After Mayor Summey issued the Executive Order, Plaintiff and others filed suit seeking injunctive relief against the City and Mayor Summey in the Charleston County Court of Common Pleas on September 13, 2021. See Bauer v. Summey, 568 F.Supp.3d 573, 582-83 (D.S.C. 2021).
On September 14, 2021, the City and Mayor Summey removed the case to this court. Id. Also on September 14, 2021, the plaintiffs filed a motion for a preliminary injunction. Id.
On October 21, 2021, the Bauer court denied the plaintiffs' request for preliminary injunction. In doing so, the Bauer court found that the City provided “several rational justifications for” the Executive Order, including, “inter alia, the health concerns to government employees and citizens posed by COVID-19, the continued workforce disruption caused by the spread of COVID-19 - particularly among unvaccinated employees, and the financial burden of implementing safeguards to counteract these risks.” Id. at 595.
The Bauer court further found:
As of August 2021, the CDC reported that unvaccinated individuals have a 6.1 times greater risk of testing positive for COVID-19 and 11.3 times greater risk of dying from COVID-19 than vaccinated individuals. Extensive data supports vaccination as an effective strategy for preventing severe illness, hospitalization, and death from COVID-19. There is evidence that vaccines provide more robust protection than antibodies from a previous COVID-19 infection. Thus, the CDC recommends vaccination even for individuals who have already been infected with COVID-19 and recovered.Id. at 597 (citations omitted).
Finally, the Bauer court recognized that, “[a]s defendants [including the City] explain, when an employee refuses to receive the COVID-19 vaccine, the defendant employers risk staffing shortages and other workplace inefficiencies.” Id. at 598. The Bauer court referenced “affidavits outlining these negative impacts and explaining the financial burden the defendant employers [including the City], and by extension taxpayers, have faced to date in connection with efforts to provide coverage for employees who became sick or needed to quarantine due to infection.” Id. at 598-99. “Moreover, and perhaps more importantly, these defendant employers [including the City] have reasonably concluded that they risk endangering their employees and the citizens who receive their services if they allow some employees to report to work unvaccinated.” Id. at 599. The court thus denied the motion for preliminary injunction on October 21, 2021. Id. at 606.
During the next two months, and while the Bauer case was pending, the City: (1) denied Plaintiff's request for religious accommodation on or about November 18, 2021; (2) suspended Plaintiff without pay on December 3, 2021; and (3) terminated Plaintiff's employment on December 10, 2021. On February 1, 2022, the court dismissed Bauer with prejudice. See Bauer v. Summey, No. 2:21-CV-02952-DCN, 2022 WL 298127, at *4 (D.S.C. Feb. 1, 2022). Plaintiff did not appeal this dismissal. See generally docket, Bauer v. Summey, No. 2:21-CV-02952-DCN.
B. Whether Res Judicata Bars Plaintiff's Claims
For the doctrine of res judicata to be applicable, “there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits.” Pueschel, 369 F.3d at 354-55.
The first requirement is satisfied because Bauer was dismissed with prejudice, and a dismissal with prejudice is a judgment on the merits. See Hall v. Greystar Mgmt. Servs., L.P., 193 F.Supp.3d 522, 529 (D. Md. 2016) (“It is well settled that a dismissal with prejudice is an adjudication on the merits for res judicata purposes.”) (citations omitted); see also Federated Dep't Stores, Inc., 452 U.S. at 399 n.3 (“The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits.'”).
The third requirement-an identity of the parties in the two suits-is also satisfied, as Romer, the Plaintiff in this action, was a named plaintiff in Bauer, and the City, the Defendant in this action, was a named defendant in Bauer. See docket, Bauer v. Summey, No. 2:21-CV-02952-DCN; see also Pueschel, 369 F.3d at 355.
As for the second requirement, the “determination of whether two suits arise out of the same cause of action . . . does not turn on whether the claims asserted are identical. Rather, it turns on whether the suits and the claims asserted therein arise out of the same transaction or series of transactions or the same core of operative facts.” Pueschel, 369 F.3d at 355 (citation and internal quotation marks omitted). “Under this transactional approach, res judicata will bar a newly articulated claim if it is based on the same underlying transaction and could have been brought in the earlier action.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (citation and internal quotation marks omitted). Accordingly, “the doctrine of res judicata not only bars claims that were actually litigated in a prior proceeding, but also claims that could have been litigated.” Pueschel, 369 F.3d at 355-56; see Brown, 442 U.S. at 131 (“Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.”). However, res judicata does not bar claims that did not exist at the time of the prior litigation. Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991). “The standard is objective, and ‘it is the existence of the present claim, not party awareness of it, that controls.'” Id. (quoting Harnett v. Hartnett, 800 F.2d 1308, 1313 (4th Cir. 1986)).
Defendant argues that Plaintiff's suit is barred “because he could have filed his Title VII claims in Bauer, along with his other claims[, but Plaintiff] never attempted to assert his Title VII claims in Bauer.” ECF No. 37-1 at 15. Defendant notes that even though Plaintiff's request for a religious accommodation was denied, Plaintiff was suspended without pay, and Plaintiff was terminated well before Bauer was dismissed with prejudice, Plaintiff never moved to amend his complaint to add Title VII claims nor requested that the court stay Bauer while he pursued an administrative charge and obtained a “right-to-sue” letter from the EEOC. Id.
In his Response, Plaintiff argues that the Title VII “causes of action presented in this case could not have been brought in the previous action [because Plaintiff] had not filed a charge of discrimination with the EEOC or received a right to sue to file a complaint regarding these employment issues.” ECF No. 42 at 21. He contends that Defendant did not deny the accommodation until two months after the initial complaint in the Bauer case was filed and that the Bauer case “never mentioned religious discrimination” and only sought to enjoin Plaintiff's termination. Id. at 21-22. He contends that this case is different because he now seeks to redress the alleged wrongful termination and Defendant's failure to accommodate. Id. at 22. He also argues that he could not have litigated his Title VII claims in Bauer because “the court lacked jurisdiction as the EEOC had not issued a Right to Sue.” Id. at 23.
In its Reply, Defendant points to evidence in the record showing that, as early as November 24, 2021, Plaintiff planned to file an EEOC charge alleging religious discrimination. ECF No. 46 at 2 n.2. Specifically, Plaintiff testified that he believed he had a religious discrimination claim based on the denial of his religious exemption and that he sent a text message to a friend on November 24, 2021, in which he told his friend that he was going to file a complaint with the EEOC. ECF No. 37-4 at 153:24-157:17; see ECF No. 37-8 (text message). Plaintiff also testified that his first lawsuit (the Bauer case) was still pending at that time, but he did not file his EEOC charge until July 2022. Id. Defendant contends that Plaintiff “knowingly and purposefully took no affirmative action to assert or otherwise preserve his Title VII religious discrimination claims in Bauer[,] claims [Plaintiff] believed existed and could have taken steps to preserve and raise in Bauer. Instead, [Plaintiff] chose to split his claims between Bauer and this case in contravention of the doctrine of res judicata.” ECF No. 46 at 2.
Upon review, the undersigned concludes that Plaintiff's claims in this action are “based on the same underlying transaction [as] and could have been brought in the earlier [Bauer] action.” See Clodfelter, 720 F.3d at 210. Both actions arise from the Executive Order and Plaintiff's objection to taking the vaccine as a condition of his employment. All the facts giving rise to Plaintiff's claims in this action-the Executive Order, the denial of his request for religious accommodation, his suspension without pay, and his termination-arose while the Bauer case was pending.
The undersigned is not persuaded by Plaintiff's argument that the Bauer court would have lacked jurisdiction over Plaintiff's religious discrimination and retaliation claims because Plaintiff had not yet exhausted his administrative remedies as to those claims. Indeed, the Supreme Court has explained that Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, and not jurisdictional, such that the failure to comply with this requirement does not deprive the Court of jurisdiction over a Title VII claim. Fort Bend Cnty., Texas v. Davis, 587 U.S. 541, 551 (2019). Moreover, numerous courts, including a court in this District, have found that res judicata bars subsequent Title VII claims, even where the plaintiff had not exhausted his administrative remedies. See, e.g., Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011) (finding res judicata barred plaintiff's subsequent Title VII claim, specifically rejecting plaintiff's argument that “he faced a legal obstacle [exhaustion of administrative remedies] that barred him from asserting his Title VII claim at the same time he filed his § 1983 case,” and explaining that plaintiffs in the same situation “routinely ask district courts to stay the first lawsuit until they obtain a right-to-sue letter”); O'Grady v. MCI Telecommunications Corp., 103 F.3d 119, 1996 WL 721953, at *1 (4th Cir. 1996) (Table) (finding res judicata barred plaintiff's subsequent Title VII action, even though he “had not yet received his right to sue notice from the EEOC”); Zimmerman v. Coll. of Charleston, No. 2:12-CV-00505-DCN, 2013 WL 4523585, at *5 n.4 (D.S.C. Aug. 26, 2013) (“Even if Zimmerman's claims hinged on receipt of the notice, res judicata would still apply because she could have sought to stay the state court proceedings.” (citing Hermann v. Cencom Cable Assocs., Inc., 999 F.2d 223, 225 (7th Cir. 1993) (“[T]he employee can sue on his other claims, ask the court . . . to stay the proceedings until the Title VII administrative process is complete, and then if the process does not end in a way that satisfies him amend his complaint to add a Title VII count.”); Woods v. Dunlop Tire Corp., 972 F.2d 36, 37-41 (2d Cir. 1992))).
For the foregoing reasons, the undersigned concludes that Plaintiff's claims in this action are barred by the doctrine of res judicata. Accordingly, summary judgment can be granted on this basis alone. Nevertheless, the undersigned will also consider Defendant's alternative arguments that Plaintiff's Title VII claims fail on the merits.
II. TITLE VII RELIGIOUS DISCRIMINATION - FAILURE TO ACCOMMODATE
Title VII makes it an unlawful employment practice “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion.” 42 U.S.C. § 2000e-2(a)(1). Under that provision, an employer must “make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977)); see also 42 U.S.C. § 2000e(j) (defining “religion” to include “all aspects of religious observance and practice, as well as belief,” unless employer can show that accommodation of employee's religion would impose an “undue hardship on the . . . employer's business”).
In religious accommodation cases, courts in the Fourth Circuit employ a burden shifting scheme akin to the one articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Firestone Fibers & Textiles Co., 515 F.3d at 312. Under this framework, a plaintiff must first establish a prima facie case by showing 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. (citation and internal quotation marks omitted).
“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.” Id. (citation and internal quotation marks omitted); see also 42 U.S.C. § 2000e(j). To satisfy its burden, “the employer must demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship.” Firestone Fibers & Textiles Co., 515 F.3d at 312.
A. Plaintiff's Prima Facie Case
In its Motion, Defendant “does not contest that [Plaintiff] submitted a request for religious accommodation and that the request contained a statement from [Plaintiff] purportedly expressing his religious beliefs.” ECF No. 37-1 at 19-20. Defendant also concedes that it “disciplined [Plaintiff] for his failure to comply with the Executive Order, and there is no material evidence to the contrary.” Id. at 20 (acknowledging that Defendant suspended Plaintiff without pay on December 3, 2021, and terminated his employment on December 10, 2021). Accordingly, for purposes of this Motion it is undisputed that Plaintiff has established the second and third elements of his prima facie case.
To establish the first element, Plaintiff must show that he has a bona fide religious belief that conflicts with an employment requirement. Firestone Fibers & Textiles Co., 515 F.3d at 312. “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.'” Spa v. Aiken/Barnwell Ctys. Cmty. Action Agency, Inc., No. CV 1:24-31-JDA-SVH, 2024 WL 2848492, at *4 (D.S.C. Mar. 1, 2024) (citing 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)), report and recommendation adopted sub nom. Rhonda Spa v. Aiken/Barnwell Ctys. Cmty. Action Agency, Inc., No. 1:24-CV-00031-JDA, 2024 WL 2315293 (D.S.C. May 22, 2024). “[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., 692 F.Supp.3d 548, 557 & n.6 (E.D. Va. 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 when describing the “useful indicia” for evaluating whether beliefs are religious rather than secular).
Both parties set forth the Africa standard in their briefing. See ECF No. 37-1 at 19; No. 42 at 2425. The undersigned further notes that the parties largely rely on cases decided at the motion to dismiss stage, not the summary judgment stage. See ECF No. 37-1 at 16-19 (citing extensively to Menk v. the Mitre Corp., No. 1:23-cv-00053-JRR, 2024 WL 327087, at *1 (D. Md. Jan. 29, 2024) and Ellison v. Inova Health Care Servs., 692 F.Supp.3d 548 (E.D. Va. 2023)); ECF No. 42 at 2427 (quoting extensively from a Report and Recommendation on a Motion to Dismiss in Brunson v. Aiken/Barnwell Counties Community Action Agency, Inc., C/A No. 1:24-36-JDA-SVH, at ECF No. 42-6).
In its Motion, Defendant argues that Plaintiff cannot meet his burden of establishing that he had a bona fide religious belief-that is, a belief that is “religious in nature” and “sincerely held”-that conflicted with an employment requirement. ECF No. 37-1 at 18-19.
In his Response, Plaintiff contends that he has presented sufficient evidence to create a question of fact regarding this element of his prima facie case. Specifically, he points to Plaintiff's Request for a Religious Accommodation, in which he stated:
I have been a devoted Christian for the past 43 years and have been committed to following His work, the Bible. My sincerely held Christian beliefs prevent me from receiving the Covid vaccines. Human life is sacred and GOD created the human body and it's human immune system as he created it.
The covid vaccines interfere with the function of the immune system in which HE created. Therefore, the process of how the vaccines interfere is a violation of GODS will for humanity. And it is my beliefs that I cannot take these vaccines in good faith.
ECF No. 37-9; see ECF No. 42 at 27.
Plaintiff testified at his deposition that he never received vaccinations as a child or as an adult. ECF No. 37-4 at 31:23-32:19. He was homeschooled as a child, and he received an exemption from his college's vaccination requirement. Id. at 32:10-33:5. He testified that his refusal to take vaccines has always been for religious reasons. Id. at 33:12-34:1. He further testified that he was raised in the Nazarene church, and he has also attended other Christian churches, including Baptist and Catholic churches, but he has not attended any church in over 16 years. Id. at 34:2-36:15.
Plaintiff also points to his Declaration, wherein he references his deposition testimony and Request for Accommodation and avers: “This is one of the main reasons why my parents never got any of my siblings vaccinated because they have tested fetal cells in vaccinations for many years and that is not in our Christian beliefs to put vaccinations in our body.” ECF No. 42-11 at 1 ¶ 3; ECF No. 42 at 27.
In its Reply, Defendant argues that there is evidence in the record that undermines
Plaintiff's contention that he sincerely holds a religious belief that is in contradiction to the COVID-19 vaccines. ECF No. 46 at 6-7. Specifically, Defendant contends that there is evidence to suggest that Plaintiff's beliefs were more political than religious and that his objection was based on medical and scientific concerns, not religion. Id.
For instance, Defendant points to the Bauer plaintiffs' Memorandum in Support of TRO/Preliminary Injunction and in Opposition to the Bauer defendants' memorandum for the proposition that Plaintiff “asserted in Bauer that he did not ‘intend to get the COVID vaccine,' because he did ‘not agree with it politically.'” ECF No, 46 at 6 (quoting Bauer, 2:21-cv-02952-DCN, Dkt. 17). However, the undersigned notes that the first sentence of that same filing describes the Bauer plaintiffs (including Plaintiff) as “personnel affiliated with the City of North Charleston . . . who due to religious and personal privacy reasons wish not to receive the Covid-19 vaccine nor expose their medical status to those not entitled to see their medical records under the Health Information Privacy and Accountability Act (HIPAA).” Bauer, 2:21-cv-02952-DCN, Dkt. 17 at 2.
Based on the evidence and argument presently before the Court, and drawing all reasonable inferences in the light most favorable to Plaintiff, the undersigned finds sufficient evidence to create a genuine question of material fact as to whether his belief about vaccines is “religious” in nature, as opposed to social, political, or economic views or personal preference, and whether that belief is “sincerely held.” See Spa, 2024 WL 2848492, at *4.
Specifically, there is evidence from which a reasonable jury can find that Plaintiff has never been vaccinated, that his parents refused to vaccinate him as a child based on their religious beliefs, and that he likewise has refused all vaccinations as an adult based on his religious beliefs, including that vaccines interfere with God's will in the creation of his immune system. See, e.g., Aliano v. Twp. of Maplewood, No. 22-CV-5598 (ES) (AME), 2023 WL 4398493, at *9 (D.N.J. July 7, 2023) (finding, upon a motion to dismiss, that a plaintiff adequately stated religious objections to defendant town's vaccine mandate where her request for exemption from the COVID-19 vaccine was based on “her religious beliefs that she must rely on her immune system as is”); Passarella v. Aspirus, Inc., No. 22-CV-287-JDP, 2023 WL 2455681, at *5-7 (W.D. Wis. Mar. 10, 2023) (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.”).
Moreover, there is sufficient evidence from which a reasonable jury could find that the Executive Order's employment requirement-receiving a COVID-19 vaccine-conflicts with Plaintiff's sincerely held religious belief that vaccines interfere with God's will in the creation of his immune system. Although Defendant may very well be able to convince a jury that Plaintiff's focus on immunity is science-based and that his objection to the Executive Order's vaccination requirement is not based on bona fide religious beliefs, these are factual determinations reserved for the fact finder. See U.S. Equal Emp. Opportunity Comm'n v. Consol Energy, Inc., 860 F.3d 131, 142-43 (4th Cir. 2017) (“It is not Consol's place as an employer, nor ours as a court, to question the correctness or even the plausibility of [the plaintiff's] religious understandings.... So long as there is sufficient evidence that [the plaintiff's] beliefs are sincerely held . . . and conflict with Consol's employment requirement, that is the end of the matter.”); Cesare v. PACT MSO, LLC., No. 3:23-CV-253 (VDO), 2024 WL 2823193, at *5 (D. Conn. June 4, 2024) (denying summary judgment and finding genuine disputes as to whether plaintiff's opposition to the COVID-19 vaccine was rooted in religious belief where plaintiff “requested a religious exemption in a letter which purported to quote scriptures and stated ‘[b]eing a person with strong Christian morals, it is against my religious convictions to accept this injection of a foreign substance into my body'”); but cf. Gardner-Alfred v. Fed. Rsrv. Bank of New York, C/A No. 22-1585 (LJL), 2023 WL 6214863, at *15-16 (S.D.N.Y. Sept. 25, 2023) (granting summary judgment where evidence showed the plaintiff's claimed religious beliefs were “conveniently held ones adopted only for the purpose of avoiding having to receive the Covid-19 vaccine” and that plaintiff “repeatedly, both before and after objecting to the Vaccination Policy, acted in a manner inconsistent with her belief”).
B. Defendant's Undue Hardship Defense
Because Plaintiff has established his prima facie failure-to-accommodate case for purposes of summary judgment, the burden shifts to Defendant to show that it either provided Plaintiff with a reasonable accommodation for his religious observances or that such an accommodation was not provided because it would have caused an undue hardship. Firestone Fibers & Textiles Co., 515 F.3d at 312. In its Motion, Defendant argues that Plaintiff could not be reasonably accommodated without undue hardship on the City. ECF No. 37-1 at 20.
An undue hardship “is shown when a burden is substantial in the overall context of an employer's business.” Groff v. DeJoy, 600 U.S. 447, 468 (2023) (holding that, contrary to the case law in a number of circuit courts, showing “more than a de minimis cost” does not suffice to establish “undue hardship” under Title VII). To establish an undue hardship, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Id. at 470. “[C]ourts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” Id. at 470-71 (citation and internal quotation marks omitted); Id. at 471 (further explaining that a “court[] should resolve whether a hardship would be substantial in the context of an employer's business in the common-sense manner that it would use in applying any such test”).
In its Motion, Defendant notes that it granted religious accommodation requests for City employees in non-safety sensitive City positions. ECF No. 37-1 at 22. However, Defendant contends that Plaintiff's “position as a City firefighter required he be available to respond to emergency situations - situations requiring he directly interact with citizens and other public safety personnel, including other firefighters.” Id. Defendant argues that the City is “a municipality whose core function is police and fire protection to City residents” and that “it is ‘common sense' that the City maintain certain staffing levels to ensure an adequate number of firefighters are available at all times.” Id. at 22-23.
In support of its arguments, Defendant produced an affidavit executed by the City's Deputy Fire Chief on September 24, 2021, shortly after the Executive Order was issued. Exhibit 14, Munn Aff., ECF No. 37-16. In the affidavit, the Deputy Fire Chief averred as to recent and recurring staffing and overtime challenges related to COVID-19:
• During the month of August [2021] alone, the department had 27 different unvaccinated employees who were exposed and had to be out for at least seven days and a negative test to return to duties. Of those 27 unvaccinated employees, 15 were exposed at work by another member of the crew. Because fire personnel eat and sleep at their station and travel in crews in vehicles, the potential for spread is greater than in some other work settings.
• On or about August 4, 2021, the department had to quarantine 5 members of the crew at Station 3 because of exposure by one member who tested positive. Two members could be allowed to stay at work because they were fully vaccinated. The required quarantine of the other resulted in both the Engine and Rescue Truck being shut down for several hours while the department scrambled to find personnel to work overtime and get the replacement workers physically to the station.
• On or about August 15, 2021, the department was forced to quarantine 4 members -the entire crew-because one member exposed the entire crew. None of the crew members were vaccinated.
• On or about August 21, 2021, the department was forced to quarantine 6 crew members of Station 7 because of exposure by a member of the crew. Two of those members were already working overtime to cover for the absence of other crew members. Only one member had been vaccinated prior to exposure so that he could continue to work.
• Because of the need to force overtime to cover the absences, the department has been forced to spend disproportionate amounts of its overtime budget. In August alone, it used 18% of its annualized overtime budget.
Munn Aff., ECF No. 37-16 at 4.
Defendant notes that twenty-four firefighters, including Plaintiff, requested religious accommodations, Id. at 23, and it contends that it “is ‘common sense' that the City must respond to emergencies with sufficient, available firefighters” and “that someone could die if an insufficient number of firefighters are available,” Id. at 24. See Exh. 16, Wimberley Decl. ¶ 5, ECF No. 37-18. The City points to EEOC guidelines addressing relevant considerations when considering accommodation requests, including “the risk of the spread of COVID-19 to other employees or to the public,” and “the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer.” Id. (quoting U.S. Equal Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Section L.3, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).
Finally, Defendant contends that the City “did not have the personnel to oversee and administer a complex testing and monitoring program for the number of firefighters requesting accommodation. Establishing such a complex testing and monitoring program, particularly in a manner that ensured adequate levels of fire protection at all times, would have required the hiring of additional City personnel to do so.” Id. at 25 (citing Exh. 8, Wimberley Dep. at 10:4-21, ECF No. 37-10). Defendant contends that “inherent in the City's overall decision to deny police and fire personnel accommodation[] was the consideration of possible ‘costs' to the City because of the reduction of public safety personnel and resulting, potential for loss of life without an operationally sufficient police force or fire department.” Id.; see Exh. 13, Summey Dep. at 17:1220 (“We can't operate without having a certain number of individuals on a firetruck to answer a fire call because of safety standards. Law enforcement, we have to have ample people to back up the officers, when they go one certain types of calls. And it's - it's just utterly important that we have the number of people per shift operating that we can provide the services to the community.”).
In his Response, Plaintiff acknowledges the Mayor's testimony that he implemented the vaccine mandate because, in part, police officers and firefighters have greater contact with the public, and he acknowledges the City's 30(b)(6) deposition testimony that the City did not have the personnel to handle masking and testing for the firefighters and police officers who were terminated for not getting the vaccine. ECF No. 42 at 31-32 (citing Exh. 13, Summey Dep. at 6:19; Exh. 8, Wimberley Dep. at 9:21-14). Nonetheless, Plaintiff contends that there are genuine disputes of material facts precluding a finding of undue hardship. He points to the City's testimony that there were employees in positions outside of the police department and fire department that were granted exemptions from the vaccine mandate; these employees were required to mask and test, and an HR employee and the safety officer kept track of these masking and testing requirements. ECF No. 42 at 32 (citing Exh. 8, Wimberley Dep. at 10:23-11:7). He also cites his Declaration, in which he avers that there are over 200 fire personnel (such that he does not believe 24 requests for exemption to be a large number of requests) and that the department has been short-staffed and spending its overtime budget since before COVID began. Id. at 29 (citing Pl. Decl. at ¶¶ d, f, ECF No. 42-11). He avers that he once had to quarantine for seven days after an exposure in 2020 but did not have to quarantine after an exposure in May 2021, and he avers that he never once contracted COVID while he was employed by the City. ECF No. 42-11 at 3 ¶ a, 5 ¶ g.
Plaintiff states that “they were already providing an exemption to firefighters and the shop,” but he does not cite any evidence for this proposition. ECF No. 42 at 29. He avers in his Declaration that the City “granted an exemption to a captain which was the same position [he] was doing as an acting captain.” ECF No. 42-11 at 2 ¶ a. However, Plaintiff does not identify the captain, describe what type of exemption the captain received, explain how he knows this information, or provide any other details supporting this assertion. See Id. At his deposition, Plaintiff testified that he heard “through the grapevine” that only one person in the fire department, a captain, got an exemption from the vaccine requirement, and it was a medical exemption. ECF No. 37-4 at 102:19-103:11.
Plaintiff also notes the City's testimony that religious exemption decisions were made on the basis of positions and not based on the specific details of each individual's exemption request forms. ECF No. 42 at 32 (citing Exh. 8, Wimberley Dep. at 13:13-18). He argues that because the City did not engage in any interactive process with Plaintiff at any point after he submitted his exemption request, the City did not know if it could accommodate him in his position as engineer/acting captain. Id. Plaintiff contends that only seven firefighters were terminated, and he maintains that Defendant “has failed to present an undue hardship as they were already providing testing and masking to other employees.” Id. at 33.
In its Reply, Defendant reiterates its position that when it denied Plaintiff's accommodation request, the City stated with particularity the substantial hardships granting the request would have caused to the City's business, and it maintains that the primary function of the City's business “is public safety, in particular providing police and fire protection to the City's residents.” ECF No. 46 at 8.
Upon review, the undersigned finds that Defendant has presented sufficient evidence to establish that the City could not have reasonably accommodated Plaintiff's religious exemption request without undue hardship and that Plaintiff has not pointed to sufficient evidence to create a genuine issue of material fact as to this undue hardship.
Specifically, the evidence establishes that one of the City's primary business functions is to provide public safety and that it does so through its police and fire departments. There is undisputed testimony that the City cannot provide these functions “without having a certain number of individuals on a firetruck to answer a fire call because of safety standards, [such that] . . . it's just utterly important that [the City has] the number of people per shift operating that [it] can provide the services to the community.” Exh. 13, Summey Dep. at 17:12-20, ECF No. 37-15. Further, the undisputed evidence in the record demonstrates that in the month leading up to the issuance of the Executive Order, the fire department experienced major staffing issues as a result of exposures to COVID-19 and used almost one-fifth of its annual overtime budget in that one month alone. Munn Aff., ECF No. 37-16 at 4. Plaintiff's contention that staffing shortages and overtime issues existed before the pandemic does not undermine the evidence that COVID-19 was creating significant, costly staffing at the time the vaccine mandate was put into place.
Plaintiff's position with the City was a “Fire Equipment Operator/Engineer,” see ECF No. 42 at 6, which included the following essential functions, among others:
Responds to emergency situations within the City to perform fire control, hazardous materials incident response and rescue duties; takes command of emergency scenes until relieved by superior officer[;] [d]rives fire apparatus to emergency scenes[;] . . . [r]esponds to a variety of emergency calls requiring medical treatment[;] [a]ssists emergency medical personnel with patient care; administers CPR and First Aid[;] . . . [a]cts as Captain in the absence of the Captain[;] . . . [a]ssists with special programs as assigned, such as search and rescue operations....
ECF No. 42-12 at 1. Plaintiff's duties required close contact with citizens, including while Plaintiff administered CPR and First Aid, and there is evidence in the record that “the majority of the calls [firefighters respond to] are actual medical calls for accidents or anything that happens that people could be injured.” Exh. 13, Summey Dep. at 17:25-18:2, ECF No. 37-15. The undisputed evidence in the record establishes that “fire personnel eat and sleep at their station and travel in crews in vehicles, [such that] the potential for spread is greater than in some other work settings.” Munn Aff., ECF No. 37-16 at 4. While Plaintiff has submitted evidence suggesting that one member of the 200-person fire department received an exemption, that individual was a Captain, not an engineer, and there is no evidence in the record regarding that person's job duties.
Although there is evidence in the record that the City accommodated employees in nonsafety-related positions and that those masking and testing accommodations were tracked by two existing employees at the City, there is no evidence in the record as to how many non-safety employees received such accommodations. However, the undisputed evidence establishes that at least 10% of the City's firefighters applied for a religious exemption from the vaccination mandate and that had the City granted the number of religious exemptions requested by the firefighters and police officers, the City would have had to add personnel to track the mask and testing accommodations.
On this record, and taking into account “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of” the City, the undersigned concludes that Defendant has shown “that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” see Groff, 600 U.S. at 470, such that Defendant could not reasonably accommodate Plaintiff's vaccine exemption request without undue hardship.
Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to Plaintiff's failure-to-accommodate claim. See Petersen v. Snohomish Reg'l Fire & Rescue, No. C22-1674 TSZ, 2024 WL 278973, at *7 (W.D. Wash. Jan. 25, 2024) (granting summary judgment upon finding that “[b]ecause unvaccinated firefighters are at a greater risk of contracting and spreading COVID-19, regardless of masking, PPE, testing, and social distancing, the Court concludes that Snohomish Fire could not reasonably accommodate Plaintiffs' vaccine exemption requests without undue hardship”); Id. (noting that employers may take into account the cumulative cost and burden of granting accommodations to other employees and noting that “the fact that 46 out of 192 Snohomish Fire firefighters requested an exemption and accommodation increased Snohomish Fire's hardship and the risks associated with accommodating Plaintiffs in their patient-care roles while living and working in fire stations”); Antredu v. Massachusetts Dep't of Youth Servs., No. CV 22-12016-WGY, 2024 WL 1539725, at *5 (D. Mass. Apr. 9, 2024) (granting summary judgment where plaintiff was terminated for not complying with COVID-19 vaccine mandate and finding that state agency met its burden in demonstrating that the requested accommodation, mask-wearing and periodic testing, would have been an undue hardship where the plaintiff's position included in-person, one-on-one interactions with both youth, their families, and other employees; plaintiff was required, at times, to physically restrain youth; and that such close contact with clients would have increased his risk for spreading COVID-19); see also Kluge v. Brownsburg Cmty. Sch. Corp., No. 1:19-CV-02462-JMS-KMB, 2024 WL 1885848, at *17 (S.D. Ind. Apr. 30, 2024) (“All consistent with the Supreme Court's decision in Groff, this is simply ‘common sense': a public school is not a typical business; a publicschool student is not a typical customer.”); Bordeaux v. Lions Gate Ent., Inc., No. 222CV04244SVWPLA, 2023 WL 8108655, at *14 (C.D. Cal. Nov. 21, 2023) (collecting cases that “all share the through-line that increased risks of getting others sick, even vaccinated individuals, can be considered in deciding an undue hardship under Title VII” and that “[w]hile these cases were all decided before the Supreme Court issued its opinion in Groff, they nevertheless remain persuasive post-Groff”).
III. TITLE VII RELIGIOUS DISCRIMINATION - DISPARATE TREATMENT
A plaintiff can bring religious discrimination cases under two separate theories-disparate treatment or failure to accommodate. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996). In its Motion, Defendant notes that Plaintiff's claim appears to be based only on the City refusing to grant his requested accommodation; nonetheless, in the event Plaintiff is also making a disparate treatment claim, Defendant moves for summary judgment on that theory as well. ECF No. 37-1 at 25.
Under the disparate treatment theory, “an employee must demonstrate that the employer treated [him] differently than other employees because of [his] religious beliefs.” Chalmers, 101 F.3d at 1017 (emphasis in original). Because Plaintiff has not presented direct evidence of discrimination, Plaintiff must proceed under the McDonnell Douglas burden-shifting framework. See Abeles v. Metro. Washington Airports Auth., 676 Fed.Appx. 170, 174 (4th Cir. 2017) (“Absent direct evidence of discrimination, a plaintiff can establish discrimination via circumstantial evidence under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973).” (footnote omitted)).
“The burden-shifting framework first requires the plaintiff to establish a prima facie case of discrimination before the burden shifts to the employer to provide evidence of a legitimate, nondiscriminatory reason for its employment action; if the employer does so, the burden shifts back to the employee to show that the employer's proffered reason is pretextual.” Id. (citing Chalmers, 101 F.3d at 1018).
To establish a prima facie case, a plaintiff must show “(1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) different treatment than similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); see Burnell v. Richland Sch. Dist. One, No. 3:17-CV-2742-MGL-TER, 2019 WL 1339202, at *5 (D.S.C. Jan. 11, 2019) (“To establish a prima facie case of religious discrimination, Plaintiff must show (1) he is a member of a protected class; (2) he was discharged; (3) he was fulfilling the District's legitimate expectations at the time of his discharge; and (4) the discharge arose under circumstances permitting a reasonable inference of religious discrimination.”), report and recommendation adopted, No. CV 3:17-02742-MGL, 2019 WL 457662 (D.S.C. Feb. 6, 2019). “[T]o create a triable issue of fact as to satisfactory job performance, a plaintiff must demonstrate that he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action.” Giles v. Nat'l R.R. Passenger Corp., 59 F.4th 696, 704 (4th Cir. 2023) (citation and internal quotation marks omitted). “Critically, under this element, it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Id. (citation and internal quotation marks omitted).
Defendant argues that Plaintiff cannot establish a prima facie case of religious discrimination because he was not performing his job satisfactorily and there is no evidence that Plaintiff's suspension or discharge arose under circumstances permitting a reasonable inference of religious discrimination. ECF No. 37-1 at 26. According to Defendant,
Romer was not meeting the City's legitimate expectations because despite the City denying Romer's accommodation request, Romer refused to comply with the Executive Order. Moreover, the Executive Order was issued before Romer made his purported religious beliefs known to the City. Consequently, Romer cannot present sufficient evidence he was meeting the City's expectations or that there is any causal link between his religious beliefs and either the suspension or termination of Romer's employment.Id.
In his Response, Plaintiff argues:
Mr. Romer can clearly show that he was treated differently than others. As testified to by Ms. Wimberley, others were accommodated/granted an exemption and as stated Mr. Romer did not have a position as a police officer he was a firefighter
which had a different regiment of hours and no on call as officers. If the Defendant had done a thorough interactive process, they would have determined that Mr. Romer was an Engineer/Acting Captain not a police officer. Significant to the Differential Treatment issue, Mayor Summey clearly testified that he was not happy about the previous lawsuit in which Mr. Romer was a party. If the Defendant had examined Mr. Romer's actual position, engaged in the process, and reviewed the requirements of his position they would have been aware of his position could be accommodated based on the parameters of their other exemption grants as they did with another Captain at the Department.
ECF No. 42 at 33-34.
In its Reply, Defendant argues:
Romer does not meet his burden. As discussed in the Motion, it is clear Romer was not meeting the City's legitimate expectations because despite the City denying Romer's accommodation request, Romer refused to comply with the Executive Order. Notably, Summey issued the COVID-19 vaccine requirements by way of the Executive Order before Romer made his religious beliefs known to the City. Consequently, Romer presents no sufficient evidence he was meeting the City's legitimate work expectations or that there is any causal link between Romer's religious beliefs and either the suspension or termination of Romer's employment;
a suspension and termination required by the Executive Order.
Further, Romer, like all firefighters (and Engineers) who requested a religious accommodation, was denied the accommodation and later terminated. The City, therefore, treated Romer like all other similarly situated firefighters, including Engineers. Finally, as noted above, Romer's suspension and termination were required by the Executive Order as opposed to being related to his request for accommodation, thus removing any causal link and contrary to any assertion by Romer that the City's disciplinary actions were pretextual.
ECF No. 46 at 10-11.
Upon review, the undersigned is constrained to agree with Defendant that Plaintiff has failed to produce evidence to create a triable issue of fact as to the second and fourth elements of his prima facie case. The undisputed evidence establishes that Plaintiff did not comply with the Executive Order and receive the COVID-19 vaccine, such that Plaintiff cannot demonstrate that he was meeting his employer's legitimate expectations at the time of his suspension or termination. See Giles, 59 F.4th at 704. Moreover, Plaintiff has not produced evidence showing that similarly situated firefighters outside of his religion were treated differently. See Chalmers, 101 F.3d at 1017 (explaining that plaintiff may establish prima facie disparate treatment claim by showing the “employer treated the employee more harshly than other employees of a different religion, or no religion, who had engaged in similar conduct”).
Finally, even if Plaintiff could establish a prima facie case, Plaintiff has not produced evidence sufficient to show that Defendant's legitimate non-discriminatory reason for his suspension and termination-the failure to comply with the Executive Order's vaccination requirement-was pretext for religious discrimination. Accordingly, to the extent Plaintiff asserted a Title VII disparate treatment claim, summary judgment for Defendant is appropriate.
IV. TITLE VII RETALIATION
Title VII forbids an employer from taking action that discriminates against an employee because that employee either has “opposed any practice made an unlawful employment practice” by Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a); see Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (“Title VII prohibits an employer from retaliating against an employee for complaining about prior discrimination.”). “Protected activity under Title VII includes complaints of discrimination based upon . . . religion....” Roberts, 998 F.3d at 122; see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (explaining that “utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities” are protected activities). However, courts have found that “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” Menk v. MITRE Corp., No. 1:23-CV-00053-JRR, 2024 WL 327087, at *21 (D. Md. Jan. 29, 2024) (quoting Equal Emp. Opportunity Comm'n v. N. Mem'l Health Care, 908 F.3d 1098, 1102 (8th Cir. 2018)).
Employees may prove that their employer retaliated against them for engaging in opposition activity through one of two ways: by direct evidence of retaliatory animus, or through the McDonnell Douglas burden-shifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). Because Plaintiff has not proffered direct evidence of retaliatory animus, he must establish a prima facie case of retaliation and produce evidence of pretext.
To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish that (1) he engaged in a protected activity, (2) his employer acted adversely against him, and (3) there was a causal connection between the protected activity and the asserted adverse action. Id. at 250. After a prima facie case is made, the burden shifts to the employer to show that it took adverse action for a legitimate non-retaliatory reason. Id. If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating the employer's purported non-retaliatory reasons were pretext for discrimination. Id. Proof of but-for causation is required. See Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (holding that “Title VII retaliation claims must be proved according to traditional principles of but-for causation”).
For purposes of its Motion, Defendant does not contest that it took adverse action by suspending Plaintiff without pay on December 3, 2021, and subsequently terminating Plaintiff's employment on December 10, 2021. ECF No. 37-1 at 27. Defendant argues, however, that Plaintiff cannot present sufficient, material evidence that “he engaged in a protected activity or, if he did engage in such activity, show there is a causal link between the protected activity and the suspension or termination of employment in December 2021.” Id.
In his Response, Plaintiff argues that he engaged in protected activity when he “issued a complaint when he received his denial” of religious accommodation. ECF No. 42 at 34. He further argues that “the chief refused to discuss the denial of religious accommodation and the discrimination that was occurring.” Id. at 34-35. He suggests that his participation in the Bauer case was protected activity, and he contends that “Mayor Summey specifically testified that he was not happy about the previous lawsuit and that he was the individual that made the decision to terminate the firefighters and officers.” Id. at 35 (citing Summey Dep. at 12). Plaintiff contends that “[b]ut for the previous lawsuit” and his complaint to the chief, he would not have been terminated from his employment. Id.
In its Reply, Defendant argues that Plaintiff's participation in Bauer was not protected activity, and that Plaintiff's “assertion that he complained to the City's fire chief is inconsistent with his testimony about the meeting.” ECF No. 46 at 11-12 (citing Exhibit 2, Pl. Dep. 75:3-77:19, ECF No. 37-4). Defendant further argues that Plaintiff cannot show either causation or pretext. Id. at 12-14.
Plaintiff testified that after he received notice during a meeting with a fire chief that his request for religious accommodation had been denied, Plaintiff attempted to talk to the fire chief but the chief replied that he did not want to talk about it. ECF No. 37-4 at 116:24-118:15 (“I said after 14 years this is what you're going to do? . . . And he was like, I'm not having this conversation, and then that was it. I mean, that was all that was said.”); Id. at 75:16-77:19.
Upon review, the undersigned concludes that Plaintiff has failed to produce sufficient evidence to establish his retaliation claim. For purposes of this Motion, the undersigned will assume, without deciding, that there is a question of fact as to whether Plaintiff's participation in Bauer and his complaint to the chief constitute protected activity. However, the undersigned finds that Plaintiff has not presented evidence sufficient to establish a causal connection between either event and any adverse action, such that Plaintiff cannot establish a prima facie case of retaliation.
First, it is undisputed that Plaintiff did not receive the COVID-19 vaccine and that the Executive Order, which required employees to provide proof of COVID-19 vaccination in order to remain employed, was issued before Plaintiff became a party in Bauer. See Bauer, 568 F.Supp.3d at 582-83. Thus, Plaintiff cannot show that his termination was causally related to his postExecutive Order participation in Bauer. See Speaks v. Health Sys. Mgmt., Inc., 5:22-cv-00077-KDB-DCK, 2022 WL 3448649, at *6 (W.D. N.C. Aug. 17, 2022) (“[I]t is clear that the [COVID-19 vaccination] policy - which was undisputedly the grounds for [the plaintiff's] termination when she chose to remain unvaccinated - was enacted before [the plaintiff] spoke up in opposition to the vaccination requirement. Therefore, it is not reasonable to infer that there was a causal connection between her criticism of the policy and her termination.”) (emphasis in original) (citing O'Hailpin v. Hawaiian Airlines, Inc., No. 22-00007 JAO-KJM, 2022 WL 314155, at *11 (D. Haw. Feb. 2, 2022) (“Plaintiffs are unlikely to establish a prima facie case of retaliation . . . because the adverse employment actions . . . appear to be unconnected to their RA requests. Indeed, the vaccine policy was established, as well as the consequences for failing to comply[,] . . . before Plaintiffs submitted their RA requests.”); Together Emps. v. Mass. Gen. Brigham Inc., 573 F.Supp.3d 412, 444 (D. Mass. 2021) (finding plaintiffs likely could not show a causal connection between protected activity and adverse employment action where defendant asserted that “plaintiffs [were] subject to unpaid leave and potential termination not because they requested exemption, but because they were not approved and remain[ed] noncompliant with the Vaccination Policy”)).
See also Schneider v. Cnty. of Fairfax, No. 1:22-cv-871 (LMB/WEF), 2023 WL 2333305, at *6 (E.D. Va. Mar. 2, 2023) (“Because the COVID-19 policy was in place before any conduct plaintiff alleges to be protected activity occurred and because the policy clearly stated that dismissal could be a consequence for non-compliance, it is implausible to suggest that [plaintiff's] termination was a result of any of his protected activity rather than a result of his decision not to comply with the policy.”), aff'd, No. 23-1303, 2023 WL 5524752 (4th Cir. Aug. 28, 2023); Leggo v. M. C. Dean, Inc., No. 1:22-cv-374 (LMB/IDD), 2023 WL 1822383, at *6 (E.D. Va. Feb. 7, 2023) (finding that because the “COVID-19 policy was enacted before [the plaintiff] spoke up in opposition to it, there is no plausible causal connection between his opposition to the policy and continuing imposition of the policy”), aff'd, No. 23-1211, 2023 WL 4700998 (4th Cir. July 24, 2023).
Regarding Plaintiff's complaint to the fire chief following the denial of his request for accommodation, Plaintiff has failed to produce evidence to establish the requisite causal connection between this complaint and his termination because it is undisputed that Mayor Summey made the decision to terminate Plaintiff and there is no evidence that Mayor Summey was aware of Plaintiff's complaint to the chief at the time the termination decision was made. See Roberts, 998 F.3d at 124 (“To establish a causal relationship between the protected activity and the termination, a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.”); Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity. Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.”). Thus, Plaintiff cannot establish his prima facie case of retaliation, such that summary judgment is appropriate.
Moreover, even if Plaintiff could establish a prima facie case, Defendant would still be entitled to summary judgment because Defendant has produced evidence of a legitimate, non-retaliatory reason for Plaintiff's termination-his failure to comply with the Executive Order- and Plaintiff has not produced sufficient evidence of pretext. Retaliation claims require the employee to show “that retaliation was a but-for cause of a challenged adverse employment action.” Foster, 787 F.3d at 252; see Nassar, 570 U.S. at 360 (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). To do so, a plaintiff must present evidence that (1) the defendant's reason for terminating him was false and (2) retaliation for his protected activity was the real reason for his termination. Foster, 787 F.3d at 252 (citing Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Under appropriate circumstances, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Here, Plaintiff has not come forward with any evidence in support of his pretext claim. There simply is no evidence to support a finding that Plaintiff would not have been terminated but-for his participation in the Bauer case or his complaint to the fire chief. Nor is there any evidence that Defendant's asserted justification-Plaintiff's failure to comply with the mandatory vaccination requirement established in early September 2021-was false. On this record, no reasonable jury could find that retaliation for Plaintiff's protected activity was the real reason for his termination. Accordingly, Defendant is entitled to summary judgment on Plaintiff's retaliation claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment (ECF No. 37) be GRANTED and this action be DISMISSED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).