Opinion
3:22-cv-1203-JR
03-06-2023
NATALYA V. VASILENKO, an individual, Plaintiff, v. THE CITY OF PORTLAND, a municipal corporation, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff, Natalya Vasilenko, brings this action alleging defendant, City of Portland, discriminated and retaliated against her because of her religious beliefs. Defendant moves to dismiss all claims. For the reasons stated below, the motion should be granted in part and denied in part.
ALLEGATIONS
Plaintiff alleges she was a full-time employee of defendant City of Portland. Complaint (ECF 1) at ¶ 27. Plaintiff asserts, effective August 17, 2021, the City authorized her to work remotely from Keaau, Hawaii. Id. at ¶ 28. Plaintiff alleges the telework agreement was intended to last at least 12 months. Id. Plaintiff alleges her employment with the City was subject to a collective bargaining agreement which provided, “For those employees who are granted an exception [to the vaccine requirement], the City will make every effort to provide reasonable accommodations as required by law, including a temporary accommodation where necessary, for requesting employees to maintain employment without creating a direct threat to the safety or health of themselves or others in the workplace.” Id. at ¶ 29; see also COVID-19 VACCINATION MANDATE LETTER OF AGREEMENT (Ex. 4 to Complaint (ECF 1-5)) at p. 2.
Plaintiff alleges that on August 30, 2021, the City Council mandated “it will be a requirement of every position at the City of Portland to be fully vaccinated for COVID-19. Exceptions will be allowed for medical and religious reasons that meet legal standards.” Complaint (ECF 1) at ¶ 5. Plaintiff further alleges that on September 3, 2021, Chief Administrative Officer Tom Rinehart sent an email to all City employees, stating that the “City Council announced a new policy requiring all City of Portland employees to be fully vaccinated for COVID-19 or receive a medical or religious exception by Monday, Oct. 18. Those who do not fulfill this requirement will be separated from City employment on Tuesday, Oct. 19.” Id. at ¶ 7.
Plaintiff assets she requested an exemption on the basis of her sincerely held religious beliefs, which was approved on October 6, 2021, on the condition that she comply with workplace safety protocols. Id. at ¶ 10.
Plaintiff alleges she had to comply with the following rules in order to accommodate her religious objections to the vaccine:
(a) Unvaccinated (i.e., religious) employees must wear a KN95 face covering in all indoor City worksites, at all times of the day or night, regardless of whether the employee has the ability to work in a single office with the door closed, or in a City vehicle; as soon as the KN95 mask is issued, it must be worn.
(b) Unvaccinated (i.e., religious) employees will be fitted for an N95 respirator and may be asked to wear it in lieu of the KN95 when social distancing is not possible, such as when the employee's work requires close confinement with vaccinated employees, who apparently may ask a fellow employee to put on the N95 respirator.
(c) To the extent possible, unvaccinated (i.e., religious) employees are required to “socially distance” (i.e., voluntarily segregate) themselves from all other employees, including, for example, by eating alone or taking breaks outside.
(d) In all City-owned congregated living or work-spaces, unvaccinated (i.e., religious) employees are required to eat in their individual living spaces or, if not possible, to eat separately from other employees such as eating outside. (e) Unvaccinated (i.e., religious) employees are required to submit to periodic testing for COVID-19 to ensure that they alone are not infected. (f) Vaccinated employees who see or suspect that unvaccinated (i.e., religious) employees are not complying with the Rules for Unvaccinated Employees are instructed to inform their manager, supervisor, human resources, and even beyond one's usual chain of command-all to ensure strict compliance with the Rules.
(e) Unvaccinated (i.e., religious) employees are required to submit to periodic testing for COVID-19 to ensure that they alone are not infected.
(f) Vaccinated employees who see or suspect that unvaccinated (i.e., religious) employees are not complying with the Rules for Unvaccinated Employees are instructed to inform their manager, supervisor, human resources, and even beyond one's usual chain of command-all to ensure strict compliance with the Rules.Id. at ¶ 41.
Plaintiff avers that long before the City required employees to return to the workplace, she was required to accept the City's proposed accommodation in order to comply with the Mandate and keep her job. Id. at ¶ 11. Plaintiff alleges she appealed the decision, objecting to wearing a N95 respirator when she eventually returned to the office. Id. at ¶¶ 11-12. Plaintiff specifically states she asked, in lieu of the proposed accommodation, to continue to work remotely as she had been doing with the City's approval. Id. at ¶ 12. Plaintiff asserts that despite previous authorization to telework until August 17, 2022, the City denied her appeal on October 15, 2021. Id. at ¶ 13.
On October 20, 2021, the City notified plaintiff of non-disciplinary separation from employment because she failed to meet “minimum qualifications” for employment. Id. at ¶ 14. At an October 28, 2021, due process hearing, plaintiff alleges she reiterated her objection and argued the required respirator would deprive her of oxygen and hinder her job performance. Instead, plaintiff requested permission to wear a cloth mask when she returned to the office. Id. at ¶ 15. Plaintiff alleges that despite not revoking or amending her telework agreement, or even providing notice of when she would be required to return to the office, on November 10, 2021, the City terminated plaintiff. Id. at ¶ 19.
Plaintiff alleges she has sincerely held religious beliefs that prevent her from receiving vaccines for protection against COVID-19. Id. at ¶ 34. Plaintiff asserts the City offered an exception to the vaccine mandate “which by itself would have reasonably eliminated the conflict under the circumstances-the secondary conditions ... attached to the City's offer were patently unreasonable given Plaintiff's prior authorization for routine telework and the applicable labor agreement in force.” Id. ¶ 36. Plaintiff alleges that since there was no valid reason to discontinue the status quo, the City's rejection of plaintiff's request to continue teleworking was motivated by plaintiff's religious belief and need for accommodation. Id. at ¶ 38.
Plaintiff asserts some City employees who were regarded as essential or who had requested medical exceptions received more favorable accommodations than plaintiff including the option to telework full-time from home. Further, plaintiff alleges the City's rules for unvaccinated employees “are intrinsically discriminatory because they segregate, classify, humiliate, and disparately impact the City's religious employees and deprive or tend to deprive them of ‘employment opportunities or otherwise adversely affect [their] status as an employee' because of such employee's religion.” Id. at ¶ 40 (citing 42 U.S.C. § 2000e-2(2). Plaintiff also asserts the rules were not validly enacted and thus she was not appropriately subject to the vaccine mandate. Id. at ¶ 42.
Finally, plaintiff alleges she objected to the proposed accommodation as unreasonable and discriminatory, but the City refused to engage in the interactive process in good faith. Id. at ¶¶ 4850. Instead, plaintiff asserts, the City retaliated against plaintiff for engaging in protected activity. Accordingly, plaintiff seeks backpay and front pay (in lieu of reinstatement) for religious discrimination and retaliation. Id. at ¶¶ 44, 52.
In addition to her religious discrimination and retaliation claims, plaintiff also asserts a claim seeking a declaration that the mandate is ultra vires and void because it was enacted in violation of the City Charter. Id. at ¶¶ 54-70.
Defendant moves to dismiss all of plaintiff's claims.
In support of its motion, the City submits 14 exhibits asserting they are subject to judicial notice as either incorporated by reference in the complaint itself or publicly available health data, scientific studies, executive orders, and the findings of another district Court. Declaration of Anne Milligan (ECF 14 (attachments 1-14). Generally, a court may not consider materials not included in the pleadings in deciding a Rule 12 motion. Fed.R.Civ.P. 12(d). Nonetheless the court “may take judicial notice of matters of public record” and consider them without converting a Rule 12 motion into one for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks and citation omitted). Judicial notice is appropriate for records and “reports of administrative bodies.” Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1954). However, to the extent defendant relies on the exhibits to establish facts that are reasonably in dispute, the Court does not consider them for purposes of this motion. Fed.R.Civ.P. 201(b). Much of the attached exhibits deal with Government declarations of a public health emergency and COVID-19 mandates and CBA agreements which are not in dispute as to their existence. However, to the extent the City relies on such documents to establish the best path through the COVID-19 pandemic or the appropriateness of any accommodations, the Court will only make a determination as to whether plaintiff has plausibly alleged facts sufficient to establish her claims.
DISCUSSION
A. Disparate Treatment
As noted above, plaintiff alleges the accommodation offered by the City for her religious objection to the vaccine mandate was unreasonable given her authorization to telework and treated her differently than “essential” employees and those who received medical exemptions.
To avoid dismissal of this claim, plaintiff must plead facts plausibly establishing a reasonable inference that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).
With regard to protected status, Title VII requires employers to make reasonable accommodations for the religious practices of their employees, so long as such accommodation does not impose an undue hardship. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977) (It is an unlawful employment practice under Title VII for employers not to make reasonable accommodations, short of undue hardship, for the religious practices of their employees and prospective employees). Plaintiff alleges facts demonstrating she falls within this protected class. In addition, the complaint establishes that outside of the rules required to accommodate her religious objections to the vaccine, she was qualified for her position and able to perform her duties via telework.
Plaintiff alleges she suffered an adverse employment action not only via termination for failure to comply with the rules of her purported accommodation, but also because her telework agreement was revoked to the extent the City would not permit her to continue to telework in lieu of the proposed accommodation rules. Plaintiff alleges similarly situated individuals, outside of her protected class (e.g., employees with medical exemptions) were treated more favorably by having the option to work full-time from home.
Defendant asserts plaintiff did not meet the minimum qualifications for her employment because even though she was granted an exemption, she failed to comply with the job requirements of masking and testing which under the City's policies were minimum qualifications for employment. However, an inference can be drawn from the facts alleged that the purported minimum requirements were not required of all employees, only those who received a religious exemption from the vaccine mandate.
An inference can be drawn from the complaint that those who refused the vaccine were also fired for failing to comply with the mandate and apparently were not offered the option of a masking and testing. Nonetheless, the complaint alleges those who were deemed essential or were granted medical exemptions were not subject to the masking and testing requirement because they were not required to work onsite. Thus, an inference can be drawn that the masking and testing requirements were not minimum qualification for City employment. At the time of plaintiff's termination, she alleges she was not required to work onsite and thus this allegation too demonstrates a plausible inference that plaintiff was qualified for her position.
The City also argues that plaintiff's allegation that other employees were treated more favorably fails to plausibly allege a claim for relief because those obtaining exemptions and permission to work full-time from home were not similarly situated. Moreover, defendant asserts the complaint does not allege such employees did not hold religious beliefs similar to plaintiffs.
To the extent defendant argues the complaint fails to adequately allege those receiving favorable treatment were outside the protected class, the complaint as a whole permits an inference that such individuals did not request a religious exemption but were excepted from the additional masking and testing requirements and allowed to work at home because of a medical exemption. While it may be the case that such individuals also objected to the vaccine on the basis of their religious beliefs, thus demonstrating that the City did not discriminate on the basis of religion, that is not an appropriate inquiry to make on a motion to dismiss. The Court must accept the allegations as true and view them in a light most favorable to plaintiff. So long as those facts allow the Court to draw a reasonable inference that the City treated plaintiff less favorably because of her religious beliefs, then for purposes of a motion to dismiss this element of her claim is satisfied.
To the extent the City asserts those receiving allegedly more favorable treatment were not similarly situated because those employees were subject to a higher threshold of accommodation, that raises issues of fact beyond the scope of a motion to dismiss. As discussed below regarding plaintiff's accommodation claim, the City need not provide an accommodation that creates an “undue burden” that imposes more than a de minimis cost to the employer. However, the City asserts the employees allegedly receiving favorable treatment were accommodated under the Americans with Disabilities Act which requires disability accommodation so long as the accommodation does not present “significant difficulty or expense.” It cannot be determined on a motion to dismiss whether the employees receiving favorable treatment qualified for ADA accommodationsor to what extent the accommodation provided them caused more than a de minimis cost to the City. Such findings would require a weighing of facts and a determination of the reasonableness of the accommodations provided which are more appropriately left to the trier of fact after discovery has taken place. Whether the employees receiving more favorable treatment were similarly situated is an issue of fact not appropriately disposed of on a motion to dismiss.
Even defendants note that the accommodation afforded under the ADA requires an examination of its necessity, as identified by the employee's health care provider, to enable the employee to perform his or her work. Reply (ECF 24) at p. 4. The Court cannot determine on a motion to dismiss whether such accommodation was indeed necessary. A trier of fact may conclude that such an accommodation was not necessary and thus find that affording such accommodation for those receiving medical exemptions, in fact, only presents de minimis cost to the employer. Moreover, to determine whether the cost to the City in granting full-time telework as an accommodation, which was already afforded City employees like plaintiff prior to the vaccine mandate, creates too great a burden to accommodate necessarily involves an examination of the job duties of requesting employees, the morale costs to employees deemed unable to perform remote work, etc.
Next the City argues that the masking, testing, and distancing requirement applied to all unvaccinated employees regardless of the exemption granted. If plaintiff had alleged that the employees receiving a medical exemption were required to occasionally work onsite and follow such requirements, this argument may have more force. However, the complaint alleges such employees were granted the ability to work full-time from home and plaintiff was not. Even if the rules on their face were neutral, plaintiff alleges, as applied, she was singled out because of her religious objection to the vaccine and denied the ability to work full-time from home, as she had been doing prior to the mandate. Different from those employees with a medical exemption who were allowed to work from home apparently free from the masking and testing restrictions. The evidence developed may very well show no disparate treatment in that all unvaccinated employees were required to agree to the rules when and if they returned to work onsite, but that is not an inference the Court can draw on a motion to dismiss. The motion to dismiss this claim should be denied.
Defendant also asserts the telework agreement was fully revocable. The complaint alleges plaintiff had authorization to continue to telework until at least August 2022. Moreover, even if the telework agreement were revocable at any time and for any reason, plaintiff has alleged certain employees were granted this employment benefit while she was not allowed such a benefit to accommodate her religious objection to the vaccine. Whether the accommodation of testing and masking was sufficient to satisfy plaintiff's religious objections because the objection was only with respect to the vaccine and not the other rules for unvaccinated individuals, plaintiff does allege disparate treatment arguably on the basis of religion. A trier of fact may conclude no such discrimination took place based on the arguments raised by the City, but the Court does not act as a trier of fact for purposes of motion to dismiss. The allegations may be weak, but all that is required of plaintiff is to show a plausible inference of entitlement to relief. In addition, the City asserts the City Council has now adopted a rule that employees may only telework from Oregon or Washington. Whether plaintiff would lose her job today because she lives in Hawaii is not relevant to the purported discrimination taking place at the time of her termination.
B. Failure to Accommodate
Plaintiff alleges the City failed to offer her a reasonable accommodation to eliminate the conflict between her religious beliefs and the City's vaccine mandate. To allege religious discrimination on the basis of a failure-to-accommodate theory, plaintiff must assert facts plausibly establishing that (1) she had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected her to an adverse employment action because of her inability to fulfill the job requirement. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). Here, plaintiff alleges the City did in fact provide an accommodation by eliminating the duty to comply with the vaccine mandate. Nonetheless, plaintiff asserts the accommodation was unreasonable in that she was otherwise denied a purported privilege of employment granted to other unvaccinated employees allowing full-time work from home.
Again, it cannot be established at this stage of the proceedings whether the other unvaccinated employees were similarly required to mask and test while onsite for work or were granted the accommodation of full-time work from home in lieu of those requirements. The issue for this claim is not the purported disparate treatment, but simply whether the City offered a reasonable accommodation. Although the parties have not yet conducted discovery, the complaint itself establishes that an accommodation was offered. The issue thus becomes whether the accommodation was reasonable which is a question to be resolved by the tier of fact.
An employer's duty to negotiate possible accommodations ordinarily requires it to take some initial step to reasonably accommodate the religious belief of that employee. Id. Here, the complaint establishes that plaintiff refused the accommodation that included the additional duties of masking and testing. Plaintiff alleges the required respirator duty imposed upon her in lieu of vaccination, “would deprive her of oxygen throughout the workday and prevent her from performing her job. Instead, plaintiff requested that she be allowed to wear a regular cloth mask when eventually needed back at the office and, until then, to continue teleworking.” Complaint (ECF 1) at ¶ 15. The Court is unable to resolve whether the additional duty imposed upon plaintiff to allow the City to accommodate her religious objection was unreasonable on a motion to dismiss. The Court accepts as true that the masking requirement would prevent plaintiff from performing her other job duties.
Thus, the issue is whether plaintiff's preferred accommodation, full-time work from home, would impose an undue hardship on the City. Id. at 607. The City asserts that allowing a full- time employee to telework based purely on a religious objection is preferential treatment and thus an undue hardship.
To the extent defendant contends that the inquiry ends once it is established that it offered an accommodation that eliminated the entire religious objection, the argument fails to account for whether the accommodation was reasonable. For example, an employer could require employees to say a prayer at various times of the workday. An employee may object if the prayer conflicts with their religious beliefs and the employer could offer to accommodate the objection by removing the requirement for that employee and instead require the employee to remain silent all day. Depending upon the circumstances of the job, such accommodation, while eliminating the conflict, could be unreasonable. See 29 C.F.R. § 1605.2(b) (Title VII imposes an obligation on a labor organization to reasonably accommodate the religious practices of an employee) (emphasis added).
To require the City to bear more than a de minimis cost in order to accommodate a religious objection qualifies as undue hardship and is not required in order to comply with Tile VII. See Trans World Airlines, Inc., 432 U.S. at 65 (“To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.”). However, the Court cannot determine, on the record before it, that no set of facts can be established that allowing plaintiff to work full-time from home would place an undue burden on the City especially in light of the fact that the City had a telework agreement in place with plaintiff. Whether other employees must be denied this purportedly coveted option in order to provide plaintiff with that benefit is not a conclusion the Court must draw from the facts alleged in the complaint. What constitutes undue hardship must be determined within the particular factual context of each case. Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). Plaintiff has alleged sufficient facts to allow the Court to draw an inference that the City has failed to reasonably accommodate her religious objection to the vaccine mandate. The motion to dismiss this claim should be denied.
C. Disparate Impact
Plaintiff alleges the City's rules for unvaccinated employees disparately impact the City's religious employees. To allege a claim for disparate impact, plaintiff must plead facts plausibly demonstrating: (1) a significant disparate impact on a protected class or group; (2) the specific employment practices or selection criteria at issue; and (3) a causal relationship between the challenged practices or criteria and the disparate impact. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). The allegations with respect to this claim are not clear if the protected class (religious employees) or all unvaccinated employees suffered a disparate impact such as a “suffocating respirator” requirement. Nonetheless, an inference can be drawn that those employees who were relieved of the vaccine mandate were grouped into those allowed to work full-time from home (medical exemption) and those required to abide by the additional duties and denied the ability to work full-time from home (religious exemption). The complaint plausibly alleges a disparate impact based on the employment practice of the additional rules placed upon unvaccinated religious employees. Accordingly, the Court should decline to dismiss this claim at this stage of the litigation.
D. Retaliation
Plaintiff alleges she objected to the City's proffered accommodation which included the additional rules for unvaccinated employees, but that the City ignored her objections and fired her rather than allowing her to continue to telework as previously authorized.
To allege a claim for retaliation, plaintiff must plead facts plausibly establishing (1) she engaged in an activity protected under Title VII; (2) her employer subjected her to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004). The City argues the masking mandate is not an unlawful employment practice and thus plaintiff was not engaged in a protected activity under Title VII. Moreover, the City asserts plaintiff was legitimately terminated for refusing to comply with basic safety protocols. However, plaintiff alleges she requested the ability to continue to work from home full-time in lieu of the masking and testing requirement in the context of her religious objection. Whether the City could legitimately impose the masking/testing requirement is not necessarily at issue. Whether the City imposed such a requirement on plaintiff because of her religious objection to the vaccine mandate, a protected activity, is at issue. While the complaint is not clear as to whether all unvaccinated employees exempted from the mandate were subject to the additional requirements, an inference can be drawn that only those with a religious objection were denied the ability to continue to work full-time from home. It is within this context that plaintiff alleges the City failed to engage in the interactive process in good faith and allegedly retaliated against plaintiff by firing her rather than consider the option to work from home--a benefit allegedly offered other employees. Whether the facts will establish that at some point, plaintiff would have to work in person onsite and would refuse to comply with legitimate safety regulations, this necessitating her termination, is not a question the Court can answer at this stage of the proceedings. The motion to dismiss this claim should be denied.
E. Declaratory Relief
Plaintiff alleges the City's vaccine mandate is void as improperly enacted. The City asserts plaintiff lacks standing to bring this claim. Plaintiff is not seeking reinstatement and thus is no longer subject to the vaccine mandate. Declaratory and injunctive claims may exist only if they involve claims that are capable of repetition with respect to the complaining plaintiff. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). In other words, plaintiff must demonstrate that a “credible threat” exists that she will again be subject to the specific injury for which she seeks declaratory relief. Id. at 1340 (9th Cir. 1985). Because plaintiff does not allege she is still subject to the mandate or will be subject to it, she lacks standing to bring a claim for declaratory relief and the Court should dismiss this claim.
However, to the extent plaintiff asserts the mandate's alleged improper adoption renders the employment action against her illegitimate, the Court should not render an opinion at this time.
CONCLUSION
Defendant's motion to dismiss (ECF 13) should be granted with respect to plaintiff's claim for declaratory relief and denied in all other respects.
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.