Opinion
3:23-cv-01290-JR
08-05-2024
LAURA SMALL, an individual, KATHRYN YONGE, an individual, NATAUSHA HANSON, an individual, KELLY HAY, an individual, KATHERINE BERGMAN-CHAPMAN, an individual, and PEGGY SCHULTZ, an individual, Plaintiffs, v. OREGON HEALTH AND SCIENCE UNIVERSITY, an independent public corporation, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiffs Laura Small, Kathryn Yonge, Natausha Hanson, Kelly Hay, Katherine Bergman-Chapman, and Peggy Schultz bring this religious discrimination suit against defendant Oregon Health and Science University (“OHSU”). Plaintiffs now move for leave to file their First Amended Complaint (“FAC”) pursuant to Fed.R.Civ.P. 15. For the reasons stated below, plaintiffs' motion should be granted in part and denied in part.
BACKGROUND
OHSU, an independent public corporation located in Portland, Oregon, employed plaintiffs at various healthcare facilities, in various capacities. In August 2021, at the height of the pandemic, Governor Brown sought to limit the spread of the potentially deadly coronavirus in the state's healthcare facilities by issuing an executive order requiring healthcare workers to be vaccinated against COVID-19 by October 18, 2021. Johnson v. Brown, 567 F.Supp.3d 1230, 1238 (D. Or. 2021). The rules effectuating Governor Brown's vaccine mandate were promulgated by the Oregon Health Authority. In accordance with those rules, OHSU required all of its employees to be vaccinated against COVID-19. Plaintiffs each sought, and were denied, religious exemptions to OHSU's vaccine requirement.
On September 5, 2023, plaintiffs initiated this lawsuit asserting failure to accommodate claims under Title VII and Or. Rev. Stat. § 659A.030(1)(a). On December 4, 2023, OHSU moved to dismiss plaintiffs' complaint except as to Bergman-Chapman, who relied on the use of aborted fetal cells in the vaccine's development in seeking a religious exception. On May 14, 2024, the Court granted OHSU's motion as to Small, Yonge, Hanson, and Schultz's claims. See generally Small v. Or. Health & Sci. Univ., 2024 WL 2176437 (D. Or. Apr. 12), adopted in part by 2024 WL 2153608 (D. Or. May 14, 2024).
On June 13, 2024, plaintiffs filed the present motion to amend. Briefing was completed in regard to that motion on July 25, 2024.
STANDARD OF REVIEW
Leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Courts apply Rule 15 with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining whether a motion to amend should be granted, the court generally considers four factors: (1) undue delay; (2) bad faith; (3) futility; and (4) prejudice to the opposing party. Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997) (citation omitted).
These factors are not weighted equally: “futility of amendment alone can justify the denial of a motion [to amend].” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009). A proposed amendment is futile if it would be immediately “subject to dismissal.” Steckmanv. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). Thus, the proposed complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
DISCUSSION
The FAC includes two key amendments. First, “Small, Yonge, Hanson, Hay and Schultz seek to add greater detail and context to the nature of their religious beliefs and its connection to their inability to take the COVID-19 vaccine and seek to clarify the specifications of their Title VII claims” for failure to accommodate and hostile work environment.Pls.' Mot. Am. 2 (doc. 30). Second, the FAC asserts a number of new legal theories - namely, “wrongful termination,” “disparate treatment and disparate impact,” “wrongful reduction in pay,” “retaliation,” and “company-wide, or systemic, discriminatory pattern or practice.” Proposed FAC ¶ 39 (doc. 30-1).
The initial complaint did not contain a stand alone claim for hostile work environment but the Court nonetheless addressed those allegations in determining that dismissal was warranted. Small, 2024 WL 2153608 at *2.
OHSU argues that plaintiffs' motion should be denied - except “with respect to plaintiffs' religious accommodation claims” - because: (1) “Small, Yonge, Hanson, and Hay still have not adequately pled facts to support their original hostile work environment claims”; and (2) the “New Theories [are futile as alleged and] were not properly or timely exhausted with the appropriate government agency, they do not relate back to their original Complaint, and plaintiffs failed to file the New Theories within the applicable statute of limitations.” Def.'s Resp. to Mot. Am. 3 (doc. 36).
Plaintiffs' do not proffer any response to the purported pleadings deficiencies identified by OHSU. See generally Pls.' Reply to Mot. Am. (doc. 38); see alsoJustice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), crfd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). Stated differently, plaintiffs' reply brief is devoted exclusively to the issues of administrative exhaustion and relation back.
I. Hostile Work Environment
To state a hostile work environment claim, a plaintiff must show: “(1) that he was subjected to verbal or physical conduct of a [religious] nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Mills v. Peace Health, 31 F.Supp.3d 1099, 1111 (D. Or. 2014) (citing Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003)). To satisfy the third element, the conduct complained of must be both objectively and subjectively hostile or abusive. Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007) (citation and internal quotations omitted).
In making the objective determination, the court evaluates the totality of the circumstances, “including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citations and internal quotations omitted). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (citation and internal quotations omitted).
Small, Yonge, Hanson, and Hay reassert their allegations that they were “subjected to a hostile work environment” due to negative or unkind comments towards unvaccinated people, or about the unvaccinated from “co-workers, patients and their families.” Compare Compl. ¶¶ 8, 13, 18, 22 (doc. 1), with Proposed FAC ¶¶ 8, 13, 18, 22 (doc. 30-1). Hay also realleges that “she was asked multiple times to explain her religious views,” which she found “difficult and upsetting.” Compare Compl. ¶ 22 (doc. 1), with Proposed FAC ¶ 22 (doc. 30-1). And Yonge now adds:
Upon information and belief, the vast majority of those unvaccinated chose not to be vaccinated due to religious reasons. OHSU was aware of that fact and, thus, were aware that its vaccine mandate exposed religious individuals who refused to take the vaccine on religious grounds to pervasive humiliation and ridicule. Moreover, OHSU did nothing to mitigate the hostile work environment it helped facilitate and perpetuate through its acts and omissions.Proposed FAC ¶ 13 (doc. 30-1).
As the Court previously explained, Small, Yonge, Hanson, and Hay allege “no connection between the comments about unvaccinated people and plaintiffs' religion.” Small, 2024 WL 2176437 at *5; see also Brown v. N.W. Permanente, P.C., 2023 WL 6147178, *6 (D. Or. Sept. 20, 2023) (explaining, in regard to similar hostile work environment claims, that “remain[ing] unvaccinated may be a secular choice, and unvaccinated status alone does not establish any connotation of religious affiliation. Without some connection to their religion, Plaintiffs fail to allege [the first element]”); Riser v. St. Charles Health Sys., Inc., 2024 WL 2864405, *6 (D. Or. June 6, 2024) (dismissing hostile work environment claims under analogous circumstances). Plaintiffs' counsel seemingly ignores this prior ruling and the fact that the Court already considered virtually identical allegations.
Yonge's conclusory statement that OHSU was aware that many unvaccinated people “chose not to be vaccinated due to religious reasons” does little to salvage her claim given the dearth of well-plead factual allegations. Proposed FAC ¶ 13 (doc. 30-1). Significantly, plaintiffs continue to neglect to identify the comments themselves or their frequency, such that the Court cannot determine whether they qualified as severe and pervasive or mere offensive utterances, and whether they unreasonably interfered with plaintiffs' work performance. Plaintiffs' motion is denied as to Small, Yonge, Hanson, and Hay's hostile work environment claims.
II. New Legal Theories
“[I]t is well settled that a Title VII plaintiff must exhaust administrative remedies by filing a timely EEOC charge, and allegations not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Belciu v. Legacy Health, 2024 WL 3293896, *5 (D. Or. May 22), adopted by 2024 WL 3292909 (D. Or. July 3, 2024) (citations and internal quotations, brackets, and ellipses omitted).
Here, Small, Yonge, Hanson, Bergman-Chapman, and Schultz's administrative charges filed during the summer of 2022 alleged only that OHSU failed to accommodate their religious beliefs. Shaddy-Farnsworth Decl. Ex. 1, at 4-5 (doc. 37-1); Shaddy-Farnsworth Decl. Ex. 2, at 45 (doc. 37-2); Shaddy-Farnsworth Decl. Ex. 3, at 5 (doc. 37-3); Shaddy-Farnsworth Decl. Ex. 5, at 5 (doc. 37-5); Shaddy-Farnsworth Decl. Ex. 6, at 4-5 (doc. 37-6). Hay's administrative charge, in contrast, alleges both failure to accommodate and hostile work environment. Shaddy-Farnsworth Decl. Ex. 4, at 8-9 (doc. 37-4).
It is well-established that different theories of discrimination under Title VII are not interchangeable for administrative exhaustion purposes. SeeHamil v. Acts Ret.-Life Cmties., Inc., 2023 WL 6204571, *10 (S.D. Ala. Aug. 31), adopted by 2023 WL 6205429 (S.D. Ala. Sept. 21, 2023) (plaintiffs failed to exhaust their administrative remedies regarding claims under Title VII for “disparate treatment, religiously hostile work environment, and harassment on religious grounds” where their “EEOC charges center around their request for an exemption to the vaccination mandate, the Defendants' failure to accommodate their requests and the resulting termination of their employment”); see alsoSturgill v. Am. Red Cross, 2023 WL 8701293, *11 (E.D. Mich. Dec. 15, 2023) (merely pleading failure to accommodate claim in vaccine-related religious discrimination case does not “open the door” to other “entirely new theories”); Belciu, 2024 WL 3293896 at *5 (limiting court review to “Mrs. Belciu's allegations that Defendant discriminated against Mrs. Belciu by denying her request for a religious accommodation and terminating her employment, because Mrs. Belciu included these allegations in her EEOC charge”).
The two cases cited by plaintiffs in their reply do not stand for a different proposition. Pls.' Reply to Mot. Am. 2-3 (doc. 38) (citing Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189 (9th Cir. 2016); and Cabrera v. Serv. Emps. Int'l Union, 2020 WL 2559385 (D. Nev. May 19, 2020)). Specifically, Horne appertained to the “single-filing rule” in regard to “classwide claims.” Horne, 816 F.3d at 1203-04. However, this case does not concern a putative class and courts within this District have consistently held that claims such as plaintiffs present individualized fact questions (and, at times, individualized legal questions). See, e.g., Bowerman v. St. Charles Health Sys., 2024 WL 3276131, *11 (D. Or. July 1, 2024); cf. Martinez v. Victoria Partners, 2014 WL 1268705, *7 (D. Nev. Mar. 27, 2014) (“the single-filer rule cannot revive claims which are no longer viable at the time of filing”) (citation and internal quotations omitted).
And Cabrera held that a plaintiff “has exhausted her administrative remedies if her claim falls within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Cabrera, 2020 WL 2559385 at *6 (citations and internal quotations and brackets omitted; emphasis removed). That case allowed claims of retaliation and harassment to go forward because they fell “within the scope of an EEOC investigation.” Id. at *7. Here, in contrast, there is no indication that an EEOC investigation would likely reveal facts relating to plaintiffs' new legal theories.
Plaintiffs are correct that they are entitled to rely on “their pre-charge questionnaires or what information they provided to the EEOC or the Bureau of Labor and Industries during the investigation process” for the purposes of establishing the scope and extent of their administrative charges. Pls.' Reply to Mot. Am. 5-6 (doc. 38). But the FAC makes no reference to such facts (which would presumably be within plaintiffs' possession despite their assertion that discovery is needed).
In sum, individual discrimination claims are distinct from retaliation, disparate impact/treatment, and pattern or practice claims, and Title VII requires plaintiffs to timely exhaust their administrative remedies for each discrete act alleged. Plaintiffs could have properly exhausted their new legal theories by initially alleging them in one of their administrative charges (or amending their administrative charges at any time prior to the conclusion of the agency's investigation). But nowhere in the current charges do plaintiffs express an intent to pursue, or even hint at, the new legal theories. Nor do plaintiffs' charges include the words retaliation, disparate impact/treatment, and pattern or practice. Rather, each plaintiff merely notes their employment/compensation history, “sincere Christian religious beliefs,” and OHSU's failure to accommodate those beliefs by granting a vaccine exemption. See, e.g., Shaddy-Farnsworth Decl. Ex. 1, at 4-5 (doc. 37-1).
Regardless, even assuming plaintiffs' new theories of liability have been adequately exhausted (and, thus, were timely), they would not survive a Rule 12(b)(6) motion. Accordingly, for the reasons discussed below, plaintiffs' motion is denied as to their claims for disparate impact/treatment, retaliation, and pattern or practice discrimination.
A. Disparate Treatment/Disparate Impact
As OHSU denotes, plaintiffs' “‘wrongful termination' claim appears to be a catch-all term for disparate impact and disparate treatment, as plaintiffs state their terminations were unlawful ‘on the basis of both disparate treatment and disparate impact.'” Def.'s Resp. to Mot. Am. 2 n.1 (doc. 36) (quoting Proposed FAC ¶ 39 (doc. 30-1)); see also Brown, 2023 WL 6147178 at *6 (“[t]his Court has repeatedly held that a wrongful discharge claim based on discrimination is preempted by adequate statutory remedies under ORS § 659A.030 and ORS § 659A.885”) (collecting cases). And plaintiffs' “wrongful reduction in pay” claim appears to fall within the purview of their failure to accommodate theory, as the FAC does not plead facts suggesting their compensation was reduced apart from termination.
“To plead a prima facie case of [Title VII] disparate impact, a plaintiff must (1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.” Bolden-Hardge v. Office of the Cal. State Controller, 63 F.4th 1215, 1227 (9th Cir. 2023) (citation and internal quotations omitted).
Similarly, to state a prima facie case of Title VII disparate treatment, a plaintiff must demonstrate: “(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).
Initially, it is questionable whether a claim of disparate impact can proceed where, as here, the challenged employment practice was the result of a state mandate arising out of extraordinary circumstances. Regardless, plaintiffs do not sufficiently identify a protected class, let alone plead that similarly situated individuals were treated more favorably. The FAC alleges OHSU “violated Title VII's anti-discrimination prohibition on the basis of both disparate treatment and disparate impact” by “identifying the Plaintiffs and other similarly situated employees by their initial requests for religious accommodation, and terminating them.” Proposed FAC ¶ 39 (doc. 30-1); see also id. (identifying the protected class as “employee[s] with sincere religious objection” to the vaccine mandate). But the fact that plaintiffs all “share a religious belief against vaccinations” is inadequate in this context. SeeCox v. Nw. Reg'l Educ. Serv. Dist., 2024 WL 777598, *13 (D. Or. Feb. 23, 2024) (allowing disparate impact claims premised on a particular religious belief would give “limitless relief” because “any policy impacting a plaintiff's specific religious belief would generally impact 100% of the members of a class defined by that belief, which would virtually always amount to a disproportionate impact as compared to those falling outside the class”) (citation and internal quotations omitted).
And, to the extent plaintiffs assert a “protected class on the basis of their devout and sincerely held religious beliefs in the tenants of Christianity,” it is clear from the well-plead allegations that there is a wide range of belief subsets within that religion. Proposed FAC ¶ 35 doc. 30-1); see alsoKarthauser v. Columbia 9-1-1 Commc'ns Dist., 647 F.Supp.3d 992, 1008 (D. Or. 2022) (“[e]mployees are similarly situated if they have similar jobs and display similar conduct”) (citation and internal quotations omitted); Bolden-Hardge, 63 F.4th at 1228 (to meet the first prima facie element, the plaintiff must plausibly allege that other members of the same religion share the same underlying belief).
Even assuming plaintiffs adequately plead the first element for both disparate treatment and disparate impact claims, the FAC does not contain any allegations surrounding other unvaccinated employees in the same positions as plaintiffs that were permitted to continue working onsite or otherwise remained employed by OHSU despite their noncompliance with the COVID-19 vaccine requirement. Cf. Thompson v. Asante Health Sys., 2023 WL 7348812, *7 (D. Or. Sept. 21, 2023) (employees seeking medical exceptions to the vaccine mandate were not similarly situated to the plaintiffs, each of whom sought religious exceptions to the vaccine mandate); see also Gage v. Mayo Clinic, 2023 WL 8715519, *7, -- F.Supp.2d -- (D. Ariz. Dec. 18, 2023) (dismissing the plaintiffs' disparate treatment claims under analogous circumstances). Indeed, the FAC indicates that OHSU's COVID-19 vaccine requirement applied to all employees, consistent with the guidance of then-Governor Brown and the Oregon Health Authority.
B. Retaliation
To establish a Title VII retaliation claim, the plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action, and (3) the two are causally linked. Karthauser, 647 F.Supp.3d at 1012. “Protected activity” includes “the filing of a charge, filing of a complaint, or providing testimony on an employer's alleged unlawful practices”; “reports of improper workplace behavior”; and any “other activity intended to oppose an employer's discriminatory practices.” Id. (citations omitted).
Plaintiffs' retaliation claim fails at the first step, as they do not plead any facts suggesting they engaged in a protected activity. The FAC merely concludes that OHSU “violated retaliation provisions of Title VII by segregating and terminating the Plaintiffs and other similarly situated individuals who invoked Title VII's protections in their initial requests for religious exemptions, and then terminating them for that invocation of their rights under Title VII.” Proposed FAC ¶ 39 (doc. 30-1). Plaintiffs therefore do not allege any well-plead facts demonstrating they ever reported or opposed any discriminatory practice.
And plaintiffs have not cited to, and the Court is not aware of, any authority suggesting that simply applying for an exemption to an employer requirement based on a protected status constitutes a protected activity. See Equal Emp. Opportunity Comm'n v. N. Mem'l Health Care, 908 F.3d 1098, 1102 (8th Cir. 2018) (the plaintiff “failed to establish a prima facie case of opposition-clause unlawful retaliation because merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation”) (citation and internal quotations omitted); see also Jamal v. Wilshire Mgmt. Leasing Corp., 320 F.Supp.2d 1060, 1078-79 (D. Or. 2004) (finding no protected activity where “illegal discrimination was [n]ever mentioned” during the plaintiff's conversations with the chief executive officer and human resources).
Although the Court acknowledges there is some authority reflecting that “accommodation requests are a protected activity under Title VII,” plaintiffs do not rely on this line of cases or provide any argument specific to the COVID-19 vaccine mandate. See, e.g., Enriquez v. Gemini Motor Transp. LP, 2021 WL 5908208, *7 (D. Ariz. Dec. 14, 2021) (collecting cases). In the absence of such briefing, the Court declines to extend Title VII's anti-retaliation protections to every individual who sought an exemption from their employer's state-mandated vaccine requirement. See Gallagher v. Haw. Symphony Orchestra, 2024 WL 1331799, *15 (D. Haw. Mar. 27, 2024) (declining to “sua sponte” address “the proposition that simply requesting an exemption from the vaccination requirement can constitute ‘opposition' for purposes of the ‘protected activity' element” but noting that, if the plaintiff's retaliation claim “is based solely on . . . requesting a religious-based exemption as provided in the CBA's COVID-19 Protocols, then it is unclear how such a request would be ‘opposing' an unlawful practice”).
Finally, the FAC does not adequately plead causation. OHSU's COVID-19 vaccine policy was established (including the consequences for failing to comply with the policy) before plaintiffs submitted their exemptions. In similar contexts, courts have held that the plaintiff cannot meet the third element because “employees were subject to termination or unpaid leave for violating the policy irrespective of whether they submitted a [religious exemption].” Id. at *15-16 (collecting cases).
C. Pattern or Practice
The Attorney General is statutorily authorized to bring a civil action where there is reasonable cause to believe that “any person or group of persons . . . engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII].” 42 U.S.C. § 2000e-6. Courts have interpreted this Title VII provision to foreclose the use of the pattern-or-practice method of proof by private plaintiffs. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977) (“[t]he plaintiff in a pattern-or-practice action is the Government”); see also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (“[a]ll interpret the Supreme Court's discussion of the pattern-or-practice method of proof as being limited to class actions or suits by the government” such that “the pattern-or-practice method of proving discrimination is not available to individual plaintiffs”); Mansourian v. Bd. of Regents of Univ. of Cal. at Davis, 2007 WL 3046034, *7-8 (E.D. Cal. Oct. 18, 2007) (“a pattern or practice method of proof . . . is not available to individual plaintiffs”), rev'd in part on other grounds, 594 F.3d 1095 (9th Cir. 2010).
OHSU asserts the FAC fails because plaintiffs “challenge ‘discrete acts' . . . not ‘widespread' or ‘routine' discriminatory conduct.” Def.'s Resp. to Mot. Am. 12-13 (doc. 36) (quoting Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003)). OHSU is correct that Cherosky stated: “pattern-or-practice claims cannot be based on ‘sporadic discriminatory acts' but rather must be based on discriminatory conduct that is widespread throughout a company or that is a routine and regular part of the workplace.” Cherosky, 330 F.3d at 1247 (citing Teamsters, 431 U.S. at 336). Yet Cherosky addressed the continuing violations theory and, as such, pertained to an issue not currently before this Court. Cherosky is nonetheless somewhat instructive to the extent it clarified that employee claims that stem “from the individualized decisions that resulted from implementation of a policy originating from OSHA” are not appropriately characterized “as a pattern or practice of discrimination.” Id.
Importantly, plaintiffs here “have offered no reason to relieve [them] of meeting the burden of proof in an individual Title VII [religious discrimination] case.” Herrera v. Serv. Employees Int'l Union Local 87, 2013 WL 12324535, *4-5 (N.D. Cal. Sept. 13, 2013) (citation and internal quotations omitted); see also Buchanan v. Tata Consultancy Servs., Ltd., 2018 WL 3537083, *4-6 (N.D. Cal. July 23, 2018) (granting the defendant's motion “to preclude Buchanan from using the pattern and practice method of proof in support of his private claim,” noting that, although “[t]he Ninth Circuit has not yet explicitly determined whether an individual private plaintiff may bring a claim for discrimination using the Teamsters framework,” the “majority of the circuits that have considered the issue have held that the pattern and practice method of proof is not available to private plaintiffs”).
RECOMMENDATION
For the reasons stated herein, plaintiffs' Motion for Leave to File the FAC (doc. 30) should be granted as to Small, Yonge, Hanson, and Schultz's religious discrimination/failure to accommodate claims, and denied in all other respects. Plaintiffs' request for oral argument is denied as unnecessary. Plaintiffs shall have one final opportunity to seek amendment to clarify the facts and legal theories underlying their claims. Any motion to amend the complaint must be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.