Opinion
CASE NO. 3:23-cv-05209-DGE
2023-09-21
Scott BARTHOLOMEW, Plaintiff, v. State of WASHINGTON et al., Defendants.
Karen Louise Osborne, Kosborne Law LLC, Camas, WA, Pete Serrano, Silent Majority Foundation, Pasco, WA, for Plaintiff. Zachary J. Pekelis, Pacifica Law Group LLP, Seattle, WA, for Defendants.
Karen Louise Osborne, Kosborne Law LLC, Camas, WA, Pete Serrano, Silent Majority Foundation, Pasco, WA, for Plaintiff. Zachary J. Pekelis, Pacifica Law Group LLP, Seattle, WA, for Defendants. ORDER GRANTING MOTION TO DISMISS (DKT. NO. 16) David G. Estudillo, United States District Judge
I INTRODUCTION
This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 16). For the reasons discussed herein, the Court GRANTS Defendants' motion and also GRANTS Plaintiff leave to amend his complaint.
Defendants are the State of Washington, Washington State Department of Social and Health Services ("DSHS"), Governor Jay Inslee ("Governor Inslee") in his individual and official capacity, DSHS Secretary Donald Clintsman ("Secretary Clintsman") in his individual and official capacity, DSHS Human Resources Director Wendy Long ("HR Director Long") in her individual and official capacity, Steve Lowe ("Director Lowe"), in his individual capacity and official capacity as the Director of the Office of Fraud and Accountability ("OFA"), and Leah Stahduhar ("Deputy Director Stahduhar"), in her individual capacity and official capacity as the Deputy Director of the OFA.
II BACKGROUND
For purposes of this motion, the Court construes as true all well-pleaded factual allegations in the complaint.
This case concerns Plaintiff Scott Bartholomew's termination from OFA for failure to comply with Washington's vaccine requirements for state employees.
Plaintiff was hired by DSHS in 2007 and worked for the agency for 14 years. (Dkt. No. 1 at 4.) Plaintiff specifically worked at OFA within DSHS and was promoted to Regional Fraud Manager in 2016. (Id.) On March 20, 2020, DSHS closed its offices and ordered all employees to work remotely due to COVID-19. (Id.) On October 12, 2020, Secretary Clintsman emailed DSHS employees informing them that remote work would be permitted at least until June 2021. (Id. at 5.) On August 9, 2021, Plaintiff received notice that Governor Inslee had signed Proclamation 21-14 ("Proclamation"), which required state employees to be fully vaccinated by October 18, 2021 to continue to be employed by the State. (Id.) On August 11, 2021, Human Resources Department ("HR") Director Long emailed DSHS staff more details on the Proclamation but noted that the process for obtaining a religious exemption would be detailed at a later date. (Id.) DSHS provided Plaintiff with a Religious Accommodation Request Form on August 17, 2021 and Plaintiff completed his request for a religious accommodation from the vaccine requirement that same day. (Id.) DSHS HR subsequently sent Plaintiff updated religious accommodation forms to complete. (Id. at 6.)
On September 8, Plaintiff received an email from HR Director Long in which she noted that DSHS determined Plaintiff's request for an accommodation was based on a sincerely held religious belief. (Id.) The communication also noted that because of the risk posed by COVID, the only accommodation they could provide Plaintiff was "the possibility of a reassignment." (Id.) Plaintiff was directed to submit a reassignment request and to submit an updated resume by 5:00 PM on September 13, 2021. (Id. at 6-7.) Plaintiff does not allege he submitted a reassignment request or resume as directed. Instead, Plaintiff objected to the determination and emailed HR twice that he believed he could continue to perform his job remotely. (Id.) Besides the reasonable accommodation notice, no HR or other DSHS employee discussed alternate religious accommodations with Plaintiff. (Id. at 7.)
On September 28, 2021, HR Director Long sent Plaintiff a Notice of Intent to Separate for Non-Disciplinary Reason and directed him to obtain the first dose of the COVID-19 vaccine by October 4th if he wished to continue his employment. (Id.) Plaintiff refused. Throughout this time period, Plaintiff was ill from pneumonia after contracting COVID-19. (Id. at 8.) Plaintiff once again emailed HR Director Long on October 5, 2021, copying Director Lowe and Deputy Director Stahduhar, and explained his belief that he could continue to do his job remotely. (Id.) Plaintiff did not receive a response and so appealed his termination to the Office of Financial Management Personnel Resources Board ("OFMPRB") on October 7, 2021. (Id.) Plaintiff was terminated on October 18, 2021. (Id.) Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission on March 7, 2022 and received a Notice of Right to Sue on December 16, 2022. (Id. at 9.)
On March 13, 2023, Plaintiff filed his complaint, alleging religious discrimination and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). (See id. at 30-33.) Plaintiff also alleges claims of failure to accommodate and hostile work environment under the Washington Law Against Discrimination ("WLAD"), violations of his First Amendment right to freely exercise his religion pursuant to 42 U.S.C. § 1983, violations of Article I, Section II of the Washington Constitution, and that he suffered from the negligent infliction of emotional distress. (Id. at 33-40.) Plaintiff's complaint includes requests for declaratory and injunctive relief, as well as monetary damages. (Id. at 40-43.)
On May 8, 2023, Defendants filed the instant motion to dismiss. (Dkt. No. 16.) The parties stipulated to a modified briefing schedule and Plaintiff submitted his response brief on June 19, 2023. (Dkt. Nos. 20, 21.) Defendants filed their reply brief on July 14, 2023. (Dkt. No. 23.)
III DISCUSSION
A. Legal Standard
Defendants move to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 16.) On a motion to dismiss for failure to state a claim, the Court must accept as true all well-pleaded factual allegations and construe the allegations in favor of the non-moving party. See Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012). The Court need not, however, assume the truth of conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id.
B. Withdrawn Claims
At the outset, the Court notes that Plaintiff has withdrawn several of his claims. Specifically, Plaintiff has withdrawn his claims for monetary damages under Title VII as against Defendants Clintsman, Long, Lowe and Stahduhar (Dkt. No. 21 at 10), his claims for monetary damages against all individual defendants under § 1983 for violation of his First Amendment right to freely exercise his religious beliefs (id. at 24), his Washington constitutional claim (id. at 31), and his claim for negligent infliction of emotional distress. (Id.). The Court therefore DISMISSES these claims as moot.
C. Title VII and WLAD Failure to Accommodate
Title VII makes it unlawful for an employer "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). Religion, in turn, is defined as "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).
WLAD uses the same burden shifting test as Title VII to determine whether an employer has failed to accommodate an employee's religious beliefs and the Court therefore focuses its analysis on the Title VII case law. See Kumar v. Gate Gourmet Inc., 180 Wash.2d 481, 325 P.3d 193, 203 (2014).
To allege a prima facie case of religious discrimination under Title VII, a plaintiff must plead that "(1) a bona fide religious belief of the employee conflicted with an employment policy; (2) the employee informed the employer of the conflict; and (3) the employee was penalized in some way because of the conflict." E.E.O.C. v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 614 (9th Cir. 1988). Once a plaintiff has alleged a prima facie case of religious discrimination, it is the employer's burden to "establish that it initiated good faith efforts to accommodate the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship." Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002) (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993)).
Defendants move to dismiss Plaintiff's remaining Title VII and WLAD failure to accommodate claims on several grounds. First, Defendants argue Plaintiff's claims as against the individual defendants in their official capacities are redundant of Plaintiff's Title VII and WLAD claims against DSHS. (Dkt. Nos. 16 at 14; 23 at 6.) Second, Defendants argue Plaintiff's claims against Governor Inslee must be dismissed because Governor Inslee was never Plaintiff's employer for purposes of Title VII or WLAD. (Id.) Third, Defendants argue Plaintiff failed to properly allege his religious belief. (Dkt. No. 16 at 16.) Finally, Defendants argue Plaintiff's Title VII and WLAD claims fail as a matter of law because Plaintiff was offered a reasonable accommodation, which he refused. (Id.)
Plaintiff, in response, argues that his Title VII and WLAD claims as against the individual defendants in their official capacities are not redundant nor are they barred by sovereign immunity since he seeks prospective, injunctive relief (e.g., reinstatement). (Dkt. No. 21 at 11.) Plaintiff further argues that Governor Inslee may be considered Plaintiff's employer for purposes of Title VII because Governor Inslee purportedly exercised such systemic control over State employees that he effectively controlled Plaintiff's conditions of employment. (Id. at 13.) Finally, Plaintiff argues he sufficiently identified his religious belief in his complaint and that Plaintiff was not offered a reasonable accommodation. (Id. at 14, 17.)
Plaintiff fails to state a claim for failure to accommodate under Title VII and WLAD. First, the Court agrees with Defendants that Plaintiff has failed to plead that he held a bona fide religious belief that conflicted with an employment policy. As discussed, to prevail on a religious discrimination claim "a plaintiff must allege, among other things, that she holds 'a bona fide religious belief' that conflicts with an employment requirement." Bolden-Hardge v. Off. of California State Controller, 63 F.4th 1215, 1222 (9th Cir. 2023). Plaintiff has failed to meet this basic requirement. Nowhere in Plaintiff's complaint does he specifically state what religious beliefs he holds or why his religious beliefs conflict with DSHS's vaccine requirement. At most, Plaintiff alleges that he completed a religious accommodation request and "provided a Statement of Faith and Letter of Affirmation of Religious Practice and Belief from his place of worship, Harborview Fellowship Church." (Dkt. No. 1 at 6.) Additionally, Plaintiff alleges "Bartholomew's religious exemption request, like many other religious exemption requests, bases its objection on the vaccine's history and use of fetal cell lines for research and development." (Id. at 13.) The fact that DSHS determined that Plaintiff held a sincerely held religious belief does not establish that Plaintiff has pled, with particularity, that he held "a bona fide religious belief, much less one that conflicted with a requirement of [ ] [his] employment." Troulliet v. Gray Media Grp., Inc., No. CV 22-5256, 2023 WL 2894707, at *5 (E.D. La. Apr. 11, 2023). "[A]n employee's complaint must provide sufficient information about the nature of the employee's beliefs in order to state a claim for Title VII religious discrimination." Blackwell v. Lehigh Valley Health Network, No. 5:22-CV-03360-JMG, 2023 WL 362392, at *6 (E.D. Pa. Jan. 23, 2023). Plaintiff failed to plead sufficient details about his religious beliefs in his complaint and such vague pleading is ultimately not sufficient to satisfy the pleading requirements for Plaintiff's Title VII and WLAD claims.
Plaintiff's counsel suggests that "Plaintiff could amend his complaint to include, 'Plaintiff is a life-long Christian,' something included in his religious faith statement which Defendant based its conclusion that he was a Christian on, but that hardly seems necessary." (Dkt. No. 21 at 16.) But pleading requirements are "not a mere formality." R.A. v. Johnson, 36 F.4th 537, 545 (4th Cir. 2022). And, considering that not all Christian denominations may maintain the same beliefs, stating that one is a Christian does not identify the bona fide religious belief that conflicts with an employment requirement.
Even assuming that Plaintiff has adequately stated a prima facie claim for religious discrimination, which he has not, the Court finds that Plaintiff was offered a reasonable accommodation for his religious beliefs, which he refused, and therefore fails to state a claim for failure to accommodate under both Title VII and WLAD.
Title VII, by its very terms, "directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). An employer is not obligated to "accept any accommodation, short of 'undue hardship,' proposed by an employee." Am. Postal Workers Union, San Francisco Loc. v. Postmaster Gen., 781 F.2d 772, 776 (9th Cir. 1986). Rather, an employer need only offer an accommodation that would "effectively eliminate" any conflict between the employee's sincerely held religious beliefs and the employer's work requirements while "preserv[ing] the affected employee's employment status." Id. at 776-777; see also We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 292 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021), and cert. denied sub nom. Dr. A. v. Hochul, — U.S. —, 142 S. Ct. 2569, 213 L.Ed.2d 1126 (2022) ("[A]n employer must offer a reasonable accommodation that does not cause the employer an undue hardship. Once 'any reasonable accommodation is provided, the statutory inquiry ends.' "). Additionally, "[t]he employee has a duty to cooperate in the accommodation process." Kelly v. Cnty. of Orange, 101 F. App'x 206, 207 (9th Cir. 2004).
Here, Plaintiff alleges that DSHS acknowledged his request for a religious exemption was based on a sincerely held religious belief and determined that "the only reasonable accommodation we can offer is the possibility of a reassignment." (Dkt. No. 1 at 6.) DSHS's religious accommodation notice specifically advised Plaintiff he had to submit a resume and updated contact information in order to be considered for reassignment. (Dkt. No. 24 at 5.) DSHS further noted that it "will make a good faith effort to find you a position through the reassignment process." (Id.) Despite receiving this offer of potential reassignment, Plaintiff failed to submit a resume by the deadline specified in the religious accommodation notice and instead sought to negotiate with HR so that he could continue to work remotely. (Dkt. No. 1 at 6-7.) Based on these facts, the Court cannot find that Plaintiff has adequately stated a failure to accommodate claim under Title VII or WLAD.
The Court finds that Plaintiff extensively referenced the DSHS religious accommodation notice (Dkt. No. 24) in his complaint and that the document is therefore incorporated by reference. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ("Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim."). The Court may therefore properly consider the document without converting Defendants' motion into one for summary judgment.
Plaintiff argues that Defendants "offered him only an opportunity to submit a resume - but with no indication whatsoever as to what the position is he would be offered if any." (Dkt. No. 21 at 17.) However, an offer of reassignment can be a reasonable accommodation. See Robinson v. Children's Hosp. Bos., No. CV 14-10263-DJC, 2016 WL 1337255, at *7 (D. Mass. Apr. 5, 2016) (noting that "encouraging a plaintiff to transfer to another position within the company and offering her assistance toward that effort" could suffice as a reasonable accommodation). Plaintiff puts forward no caselaw supporting the argument that an employer must guarantee that they will find an employee a new job if an offer of reassignment is to constitute a reasonable accommodation. Indeed, the caselaw suggests the opposite. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 83, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (noting that employer "was not required by Title VII to carve out a special exception to its seniority system in order to help [ ] [employee] to meet his religious obligations"); Bruff v. N. Mississippi Health Servs., Inc., 244 F.3d 495, 501 (5th Cir. 2001) (holding that an offer to provide employee with 30 days to secure another position at a non-profit hospital that better aligned with employee's religious views constituted a reasonable accommodation); Barrington v. United Airlines, Inc., 566 F. Supp. 3d 1102, 1108 (D. Colo. 2021) (noting that "[c]ourts have found that employers are not obligated to create a position to accommodate an employee's religious beliefs"); Telfair v. Fed. Exp. Corp., 934 F. Supp. 2d 1368, 1384 (S.D. Fla. 2013) (noting reasonable accommodation where "the employer offer[s] to help the employee apply for other positions where the likelihood of encountering further conflicts with his or her religious beliefs would be reduced").
Moreover, an employee is required " 'to make a good faith attempt to satisfy his needs through means offered by the employer' . . . after the employer takes the 'initial step towards accommodating [the employee's] conflicting religious practice' by suggesting a possible accommodation." E.E.O.C. v. AutoNation USA Corp., 52 F. App'x 327, 329 (9th Cir. 2002) (emphasis in original) (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1441-1442 (9th Cir. 1993)). Here, Plaintiff failed to make a good faith attempt to cooperate with his employer's suggested accommodation as he failed to submit a resume by the deadline specified in DSHS's religious accommodation notice. Accordingly, Plaintiff fails to state a claim for failure to accommodate his religious beliefs under Title VII and WLAD.
Because Plaintiff's complaint inadequately pleads failure to accommodate, the Court need not decide on whether Governor Inslee could be considered Plaintiff's employer or whether claims for injunctive relief against the individual defendants would be redundant.
D. Title VII and WLAD Disparate Treatment
Defendants also move to dismiss Plaintiff's disparate treatment claims brought pursuant to Title VII and WLAD. (Dkt. No. 16 at 17.)
WLAD and Title VII both use the McDonnell Douglas burden-shifting framework to establish whether a plaintiff has made a prima facie case of disparate treatment. See, e.g., Matson v. United Parcel Serv., Inc., 872 F. Supp. 2d 1131, 1137 (W.D. Wash. 2012). The Court, accordingly, focuses its analysis on Plaintiff's Title VII claims as failure to satisfy the elements of a prima facie Title VII disparate treatment claim mean that Plaintiff has also failed to establish a prima facie case of disparate treatment under WLAD.
To establish a prima facie case of disparate treatment, a plaintiff must plead that "he is a member of a protected class; [ ] he was qualified for his position; [ ] he experienced an adverse employment action; and [ ] 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." Berry v. Dep't of Soc. Servs., 447 F.3d 642, 656 (9th Cir. 2006) (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
Here, Plaintiff has failed to allege that similarly situated individuals were treated more favorably. Plaintiff's complaint references a communication between Governor Inslee's General Counsel to the Washington Attorney General's Office in which the General Counsel argued that medical exemptions were permissible but that religious exemptions should be construed as narrowly as possible. (See Dkt. No. 1 at 10-11.) Plaintiff argues in briefing that this paragraph suffices to show that individuals with medical exemptions were treated more favorably (Dkt. No. 21 at 21), but this argument misses the mark. "In order to show that the 'employees' allegedly receiving more favorable treatment are similarly situated (the fourth element necessary to establish a prima facie case under Title VII), the individuals seeking relief must demonstrate, at the least, that they are similarly situated to those employees in all material respects." Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Plaintiff does not plead that he was similarly situated to employees who received medical exemptions in all material respects. (See generally Dkt. No. 1). Indeed, Plaintiff does not reference any other employees at DSHS or at OFA who received medical exemptions in his complaint. Accordingly, the Court finds that Plaintiff has failed to plead a disparate treatment claim under either Title VII or WLAD.
Plaintiff also argues that a failure to accommodate can constitute a disparate treatment claim. (See Dkt. No. 21 at 21.) While the Court agrees that the two theories are both properly categorized as forms of disparate treatment, see Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1272 (11th Cir. 2021) (analyzing petitioner's "traditional disparate-treatment claim and a failure-to-reasonably-accommodate disparate-treatment claim"), the Court has already found that Plaintiff has failed to plead failure to accommodate and so this cannot be the basis for Plaintiff's disparate treatment claim. The Court also notes that the two disparate treatment claims require different elements to prove a prima facie claim. See Peterson, 358 F.3d at 603-606.
E. Title VII and WLAD Hostile Work Environment
Defendants move to dismiss Plaintiff's Title VII and WLAD hostile work environment claim.
"[A] hostile work environment claim under the WLAD has substantially the same elements as a claim under Title VII." Knight v. Brown, 797 F. Supp. 2d 1107, 1132 (W.D. Wash. 2011), aff'd, 485 F. App'x 183 (9th Cir. 2012). The Court accordingly focuses its analysis on the Title VII case law, but its conclusions apply to both Plaintiff's Title VII and WLAD claims.
To allege a prima facie hostile work environment based on religion, an employee needs to plead "(1) that he was subjected to verbal or physical conduct of a harassing nature [based on his religion], (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Kortan v. California Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (quoting Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999)). The alleged conduct must be both subjectively and objectively hostile. See Hosea v. Donley, 584 F. App'x 608, 611 (9th Cir. 2014).
Here, construing the complaint in Plaintiff's favor, Plaintiff fails to adequately plead any facts to support any of the elements of a hostile work environment claim. Plaintiff does not, for example, plead facts to plausibly suggest he was subject to verbal or physical conduct of a harassing nature based on his religion. Plaintiff conclusorily pleads that he "was subject to harassment based on his religion from Defendants, which subjected him to terms and conditions of his employment that were different from those of persons of different religions and which ultimately led to his termination." (Dkt. No. 1 at 33.) However, merely stating the elements of a hostile work environment claim is not sufficient. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. DSHS's religious accommodation request notice also cannot plausibly be read as harassing Plaintiff based on his religion. Indeed, DSHS offered to assist Plaintiff in finding a new position to accommodate his religious beliefs. (See Dkt. No. 24 at 5.) Plaintiff does not otherwise plead any allegations alleging verbal or physical conduct directed towards him by any of the Defendants.
Indeed, Plaintiff alleges "[a]t no time between September 8, 2021 and September 13, 2021 nor any time before or after was there any discussion whatsoever with Mr. Bartholomew about potential accommodations to allow him to continue in his position." (Dkt. No. 1 at 9.)
Plaintiff argues that "Defendants', [sic] DSHS and in particular Governor Inslee's, actions and verbal conduct were unambiguously hostile to religious exemptions. Plaintiff articulated that he perceived the lack of response to his requests for an interactive process also as hostile." (Dkt. No. 21 at 22) (internal citation omitted). But Plaintiff puts forward no caselaw supporting his theory that general agency opposition towards religious exemptions could support a hostile work environment claim. Indeed, Plaintiff does not allege he was aware of any of the statements by Governor Inslee's general counsel regarding the scope of religious exemptions at the time of his termination.
Plaintiff has also failed to plead any facts suggesting that any alleged religious hostility was severe or pervasive. The only concrete allegation Plaintiff puts forward is that none of the Defendants engaged in a conversation with him regarding possible other religious accommodations. (Dkt. No. 1 at 7.) This is not sufficient to plead severe or pervasive conduct. Accordingly, the Court finds that Plaintiff has failed to adequately plead a hostile work environment claim under either Title VII or WLAD.
F. Free Exercise Claim
Defendants move to dismiss Plaintiff's § 1983 claim against each of the individual defendants for violating his right to free exercise under the First Amendment. Defendants argue Plaintiff has failed to state a claim for a violation of his First Amendment rights because he has not pled a causal link between any specific defendant's actions and his alleged constitutional injury. (Dkt. No. 16 at 21.)
Plaintiff, in response, argues that Defendants misconstrue his free exercise claim. (Dkt. No. 21 at 25.) According to Plaintiff, "[i]t is not the Plaintiff's assertion that the Proclamation violated Plaintiff's Free Exercise rights, but rather it is that the implementation of the Proclamation was violated by an unconstitutional vigilantism." (Id.) Plaintiff argues that the individual defendants antipathy towards religious exemptions caused his constitutional injury. (Id.)
The Court agrees with Defendants that Plaintiff has failed to adequately plead how any specific defendant's actions caused his constitutional injury. To adequately plead a § 1983 claim against individual defendants, a plaintiff must plead "proximate or legal causation." Arnold v. Int'l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). A defendant must either have "some kind of direct personal participation in the [constitutional deprivation]" or must set "in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir. 1978)).
Here, Plaintiff pleads no facts that plausibly support a claim that the individual defendants took action that caused Plaintiff's First Amendment rights to be burdened. The Court first notes that another court in this District has already found the Proclamation requiring state employees to be vaccinated to be neutral and to pass rational basis scrutiny. See Pilz v. Inslee, No. 3:21-CV-05735-BJR, 2022 WL 1719172, at *5 (W.D. Wash. May 27, 2022). Plaintiff does not appear to challenge the constitutionality of the Proclamation. Rather, Plaintiff alleges that "Governor Inslee violated the letter of the Proclamations by creating a spirit and practice of hostility toward religious exemption requests and proper accommodations and processes for accommodations." (Dkt. No. 1 at 29.) Plaintiff further alleges "Defendants and Defendants' employees implemented Governor Inslee's proclamations in a way that was hostile to religion and religious accommodation of exemption requests." (Id.) The problem with such an assertion is that Plaintiff failed to engage in the religious accommodation process. As alleged, Plaintiff was offered an opportunity to apply for a religious accommodation to the vaccine mandate. (Dkt. No. 21 at 5.) Plaintiff completed the religious accommodation form but refused to accept the accommodation offered by his employer or to follow the protocols presented by his employer. (See Dkt. Nos. 21 at 6-8; 24 at 5.) Plaintiff did not submit his resume for consideration but rather insisted that he be permitted to continue to work remotely. (Dkt. No. 21 at 6-7.) While DSHS employees did not engage with Plaintiff's request to discuss other potential religious accommodations, they were not, as a matter of law, required to further engage with Plaintiff after offering him a reasonable accommodation. See Ansonia, 479 U.S. at 68, 107 S.Ct. 367.
Based on these facts, the Court cannot find that any of the individual defendants were the proximate cause of Plaintiff's alleged constitutional injury and the Court therefore finds that Plaintiff fails to state a claim for violations of his First Amendment right to free exercise.
The Court does not address the parties' qualified immunity arguments given its finding that Plaintiff failed to adequately allege the individual defendants were the proximate cause of his constitutional injury. The Court would note, however, that a defense of qualified immunity is not available for injunctive relief. See Clement v. California Dep't of Corr., 220 F. Supp. 2d 1098, 1114 (N.D. Cal. 2002), aff'd, 364 F.3d 1148 (9th Cir. 2004).
G. Leave to Amend
Plaintiff seeks leave to amend his complaint. Leave to amend shall be given "when justice so requires." Fed. R. Civ. P. 15(a)(2). In the Ninth Circuit, leave to amend "is to be applied with extreme liberality." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).
Defendants do not directly respond to Plaintiff's request for leave to amend and the Court cannot find that any amendment would be futile. See Owens, 244 F.3d at 712. For example, Plaintiff may more properly detail his disparate treatment claim in line with the shortcomings identified above. The Court therefore GRANTS Plaintiff's request for leave to amend his complaint.
The Court will note here that it questions Plaintiff's counsel's rationale for devoting several pages of the Complaint to alleged conspiratorial relationships and motivations. (See generally Dkt. No. 1 at 12-28.) For example, Plaintiff's counsel claims the conduct complained of in this litigation was motivated by a desire to please Bill Gates. (Dkt. No. 1 at 28) ("Vying for the federal government's favor, and Bill Gates' favor, Inslee's intentional denial of religious accommodation, such as that due Scot Bartholomew, went over the line."). Plaintiff counsel is cautioned to focus future pleadings on the actual elements of their client's claims rather than irrelevant conspiratorial theories.
IV CONCLUSION
Accordingly, and having considered Defendants' motion, the briefing of the parties, and the remainder of the record, the Court finds and ORDERS that Defendants' motion to dismiss Plaintiff's complaint is GRANTED. Plaintiff is also GRANTED leave to amend his complaint. Plaintiff shall file a new complaint within 30 days of the issuance of this order.