Opinion
Case No. 2:22-cv-04244-SVW-PLA
11-21-2023
Andrea BORDEAUX v. LIONS GATE ENTERTAINMENT, INC. et al.
Gregory P. Wong, Heather K. Cox, Barkhordarian Law Firm PLC, Culver City, CA, for Andrea Bordeaux. Bert H. Deixler, Daniel Barlava, Nary Kim, Philip M. Kelly, Kendall Brill and Kelly LLP, Los Angeles, CA, for Lions Gate Entertainment, Inc., World Productions, Inc.
Gregory P. Wong, Heather K. Cox, Barkhordarian Law Firm PLC, Culver City, CA, for Andrea Bordeaux.
Bert H. Deixler, Daniel Barlava, Nary Kim, Philip M. Kelly, Kendall Brill and Kelly LLP, Los Angeles, CA, for Lions Gate Entertainment, Inc., World Productions, Inc.
Proceedings: ORDER AND JUDGMENT GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF No. 45]
STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE.
I. Introduction
Before the Court is Defendants' World Productions, Inc. ("WPI") and Lions Gate Entertainment Inc. ("LGEI") (together, "Defendants") Motion for Summary Judgment. ECF No. 45. For the following reasons, Defendants' motion is GRANTED.
II. Background
All facts are undisputed unless otherwise stated and are derived from the parties' briefs and supporting materials. Nothing in this section should be construed as a factual finding; rather, this section is merely background information regarding the instant lawsuit. "To the extent certain facts or contentions are not mentioned in this Order, the Court has not found it necessary to consider them in reaching its decision." Sarieddine v. Vaptio, Inc., 2021 WL 4731341, at *1 (C.D. Cal. June 15, 2021).
A. Overview and Procedural History
Plaintiff Andrea Bordeaux ("Plaintiff") is an actress who has appeared in several television programs, most notably (prior to the work involved in this action) "NCIS: Los Angeles." Second Am. Compl. ("SAC") ¶ 2. In October 2019, Plaintiff and WPI entered into an agreement for Plaintiff to appear as an actress in the television program "Run the World" ("RTW"). Pl.'s Separate Statement of Disputed Facts and Genuine Disputes in Support of Pl.'s Opp. to Defs.' Mot. for Summ. J. ("PSDF") 1. This agreement was reached prior to the onset of the COVID-19 pandemic in early 2020. Much of the first season of RTW was produced during the height of that pandemic. PSDF 4-11. RTW was filmed in New York City, New York. Kelly Decl., Ex. A. (Pl. Dep.) at 294:11-19, ECF No. 45-2. The show premiered in spring 2021. PSDF 12. Plaintiff played the role of Ella
McFair, one of four central characters, during RTW's first season. SAC ¶ 1.
The present case arises from Defendants' decision not to rehire Plaintiff for RTW's second season. That decision was based on Plaintiff's refusal to comply with a policy mandating that she be vaccinated against COVID-19. PSDF 60, 17. The Court has already dismissed the following claims: (1) religious discrimination in violation of the Fair Employment and Housing Act, (2) breach of contract, and (3) wrongful termination. ECF No. 36, 49.
More specifically, the Court partially granted Defendant's Motion to Dismiss on December 28, 2022. ECF No. 36. At that point, Plaintiff's only surviving claims were her Title VII claim and her breach of contract claim against WPI. On April 10, 2023, Defendants filed the instant motion for summary judgment. ECF No. 45. On May 5, 2023, the Court sua sponte reconsidered its previous order granting in part Defendants' Motion to Dismiss. At that point, the Court dismissed with prejudice Plaintiff's breach of contract claim against WPI. ECF No. 49.
Plaintiff's only remaining claim before this Court is her claim for religious discrimination in violation of Title VII, on which Defendants have moved for summary judgment. On May 5, 2023, the Court deferred ruling on this issue pending the Supreme Court's resolution of the appeal of Groff v. DeJoy, 35 F.4th 162 (3d Cir. 2022). ECF No. 49. That case has since been resolved. 600 U.S. 447, 143 S. Ct. 2279, 216 L.Ed.2d 1041 (2023). On July 5, 2023, the Court ordered optional supplemental briefing in the wake of the Supreme Court's Groff decision. The parties submitted their briefing on July 12, 2023. ECF No. 52, 54. The Court has considered these briefings and the Groff opinion itself in preparing this order.
B. RTW Season 1 COVID-19 Protocols, Plaintiff's Compliance, and Plaintiff's Job Duties
In 2020, WPI engaged the expert disaster-recovery consultant CTEH to help design and implement a comprehensive set of COVID-19 health and safety protocols to safely produce RTW Season 1. PSDF 4. These protocols were based on guidance from federal, state, local, and industry sources. Id. They required WPI to take the following precautionary steps: (1) renting production sites and office space with enough square footage to allow cast and crew to adequately social distance; (2) paying for individualized transportation to the set for cast and crew in lieu of standard group transportation; (3) purchasing testing kits and paying lab fees to have those tests processed; (4) paying for personal protective equipment ("PPE"), cleaning, and preventative sanitation; and (5) employing a team of on-site medical professionals. PSDF 7. The total cost of implementing these protocols was $6,575,270.00. PSDF 6.
Plaintiff voiced discomfort with the Season 1 protocols. PSDF 10. For example, Plaintiff pushed back on the necessity of wearing a mask and maintaining social distancing. Kelly Decl., Ex. C (Warren Dep.) at 119:2-14, ECF No. 45-2. However, after being reminded of the protocols,
Plaintiff objects to this statement offered by Defendants on an evidentiary basis. She alleges hearsay, lack of foundation, and lack of personal knowledge. At the summary judgment stage, courts focus on the admissibility of the contents of evidence as opposed to that evidence's form. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (noting that the contents of a diary could be considered at the summary judgment stage because, even if the diary were inadmissible at trial, its contents and the underlying events could be the subject of testimony at trial). See also Crawford v. Trader Joe's Co., No. EDCV 21-1519 JGB (SHKx), 2023 WL 3559331, at *1-2, 2023 U.S. Dist. LEXIS 90411, at *3-4 (C.D. Cal. May 4, 2023). The statement here is supported by [Redacted]. The statement is also supported by the deposition of Keith Warren, testifying on behalf of Defendants. Kelly Decl., Ex. C. (Warren Dep.) at 118:2-5 ("[C]ast members, including Ms. Bordeaux, were not complying with the health and safety measures. Although they ultimately complied, it took a lot of reminding in Season 1."). [Redacted] Moreover, trial testimony could establish that these reminders took place. This objection is OVERRULED.
Plaintiff ultimately complied with them. Id. In her deposition, Plaintiff stated that her compliance felt like self-betrayal: "Every time someone stuck a swab in my mouth, I felt like I was betraying myself. Wearing the mask all day when I couldn't breathe made me feel very constricted. It made me feel trapped. It made me feel like I was compromising myself." Kelly Decl., Ex. A. (Pl. Dep.) at 295:9-13, ECF No. 45-2. Plaintiff stated that she was willing to make these compromises because she felt that they would not have a "long-term" or "permanent impact on [her] health." Id. at 295:18-296:2.
Plaintiff objects to this statement offered by Defendants on an evidentiary basis. She alleges hearsay, lack of foundation, and lack of personal knowledge. At the summary judgment stage, courts focus on the admissibility of the contents of evidence as opposed to that evidence's form. Fraser, 342 F.3d at 1036-37 (noting that the contents of a diary could be considered at the summary judgment stage because, even if the diary were inadmissible at trial, its contents and the underlying events could be the subject of testimony at trial). See also Crawford, 2023 WL 3559331, at *1-2, 2023 U.S. Dist. LEXIS 90411, at *3-4 (C.D. Cal. May 4, 2023). [Redacted] This objection is OVERRULED.
In the course of her work on Season 1, Plaintiff performed in scenes requiring close contact with other members of RTW's cast. PSDF 13. Plaintiff stated that she "had more intimacy scenes than other actors on the show, and intimacy scenes required more [COVID-19] testing." Kelly Decl., Ex. A. (Pl. Dep.) at 288:2-5, ECF No. 45-2.
Plaintiff disputes Defendants' characterization of her role as requiring her to perform in such scenes "often" and for "hours at a time." PSDF 13. This dispute over the characterization of such scenes is immaterial. Such scenes were clearly part of her work duties.
C. RTW Season 2 COVID-19 Protocols, Including Vaccine Requirement
On December 6, 2021, the City of New York (where RTW was filmed) issued an order requiring workers to provide proof of vaccination against COVID-19 to employers before entering the workplace. PSDF 14. The order also provided that "[n]othing in this Order shall be construed to prohibit reasonable accommodations for medical or religious reasons." Warren Decl., Ex. F (Order of the NYC Commissioner of Health and Mental Hygiene) at 5, ECF No. 45-11. About one month later, the United States was averaging more than 800,000 daily cases of COVID-19 resulting in about 2,000 deaths attributable to COVID-19 per day. PSDF 15.
On December 17, 2021, Plaintiff was notified in writing that WPI had decided to exercise its option to re-engage Plaintiff's services for Season 2 of RTW. PSDF 16. That notification contained the following language: "The exercise of this option for the second Contract Year is contingent upon compliance with all Company policies, including COVID-19 health and safety measures, which may include vaccination, testing, quarantining, and other requirements." PSDF 16; Warren Decl., Ex. G (December 17, 2021, Warren letter offering Plaintiff contract renewal), ECF No. 45-11. On December 23, 2021, Plaintiff's talent agent was notified that RTW Season 2 was officially being declared a vaccinemandated
Plaintiff disputes Defendants' characterization of a partial quotation from this language. The full language is provided here, but the Court does not find this dispute relevant.
show and that Plaintiff's re-engagement would be contingent on her compliance with the vaccination policy. PSDF 17.
In part due to the implementation of this vaccination policy, CTEH recommended simpler and less stringent COVID-19 health and safety protocols for the production of RTW Season 2. PSDF 18. Notably, the Season 2 protocols did not require vaccinated individuals to quarantine upon coming into close contact with someone testing positive for COVID-19. PSDF 20. On the other hand, the protocols required unvaccinated individuals who came into close contact with someone testing positive for COVID-19 to quarantine for five days and to remain fully masked for an additional five days afterwards. Id. The Season 2 protocols also relaxed social distancing requirements relative to Season 1. PSDF 19.
The total cost of implementing these protocols was $3,102,842.00, making their implementation approximately $3,500,000.00 less costly than the implementation of the Season 1 protocols. PSDF 61.
D. Plaintiff's Requests for Exemption from the Vaccination Requirement, Defendants' Denial of that Request, Plaintiff's Refusal to Get Vaccinated, and Defendants' Decision Not to Rehire Plaintiff
Plaintiff submitted a letter requesting a religious exemption from WPI's vaccination policy on January 3, 2022. In that letter, she stated the rationale for her exemption as follows: "[I]t is my ... genuine and sincere personal spiritual and religious belief that my body is a sacred temple of pure and organic nature, and the introduction of any foreign, inorganic, toxic or chemically laden substances to my body is a gross violation of my sincerely held religious beliefs." PSDF 21; Warren Decl., Ex. I (Andrea Bordeaux's January 3, 2022, exemption request), ECF No. 45-11. Further, she stated that "chemical pharmaceuticals, treatments or tests, such as, but not limited to, all versions and iterations of the Covid-19 vaccination, are antithetical to my morals, spirituality, and religious conviction." Id.
Plaintiff objects to Defendant's characterization of this language and the way in which Defendant partially quoted from it. The full language is included here.
Plaintiff received a response to her exemption request on January 7, 2022. Warren Decl., Ex. J. (Celisse Sauceda's January 7, 2021, response to Andrea Bordeaux's exemption request), ECF No. 45-11. In that response, Plaintiff was informed that Defendants could not "reasonably accommodate [her] request" because allowing an unvaccinated individual in her position "to report to the workplace at this time presents both a direct threat to cast and crew health and safety and an undue hardship on production." Id.
This response was written by Celisse Sauceda, an employee of Lions Gate, and presented on Lions Gate letterhead.
On January 18, 2022, Plaintiff, Plaintiff's talent agent, a representative from WPI and two CTEH health experts met to discuss Plaintiff's exemption request. At that meeting, Defendants outlined a variety of accommodations that would not work for someone in Plaintiff's role. Plaintiff could not be moved to a different "zone" classification
Plaintiff disputes that the purpose of this meeting was to address Plaintiff's request for exemption from the vaccination policy and alternatives. PSDF 51. However, a review of the meeting transcript makes it clear that Defendant and Plaintiff discussed both Plaintiff's request and proposed accommodation alternatives. Kelly Decl., Ex. J (January 18, 2022, Meeting Tr.) at 27:8-43:14.
which would allow her to appear for work unvaccinated because she was cast in a leading role. Kelly Decl., Ex. J (January 18, 2022, Meeting Tr.), 39:5-14, ECF No. 45-2. Plaintiff could not continue to work in her current "zone" classification while unvaccinated due to the protocols governing production. Id. at 39:14-15; see also Notice of Suppl. Authority in Connection with Defs.' Pending Mot. for Summ. J. 5, ECF No. 57 (explaining that Zone A was a controlled bubble in which actors performed and in which mandatory vaccination is strictly required, while Zone B included areas outside the set, where certain crew members could work independently on behind-the-scenes production and film-making). Plaintiff also could not always wear PPE because a mask would have to be removed while filming her scenes. Kelly Decl., Ex. J (January 18, 2022, Meeting Tr.), 39:15-18.
Two days later, on January 20, 2022, Plaintiff submitted a second exemption request. PSDF 59. In that request, she wrote that while she "appreciate[d] the perspectives presented to [her] in [the January 18, 2022] meeting," she was "choosing to remain firm in [her] choice to not vaccinate due to the severe conflict that it would pose to [her] religious convictions." Warren Decl., Ex. K (Andrea Bordeaux's January 20, 2022, exemption request), ECF No. 45-11.
Plaintiff disputes Defendant's characterization of this letter, but this dispute is immaterial.
In a letter dated the next day, January 21, 2022, Defendants informed Plaintiff's talent agent that Plaintiff was not being rehired due to her failure to comply with the vaccination mandate. PSDF 60.
This letter was also delivered on Lions Gate letterhead. See note 8 supra.
E. Plaintiff's Alleged Religious Beliefs
As discussed above, Plaintiff based her exemption requests on her alleged religious beliefs. Plaintiff states that her alleged religion has no name. PSDF 33. She also states that the main location where one practices her religion is inside oneself, i.e., "it's located within each person." Cox Decl., Ex. B (Pl. Dep.) at 53:9-18, ECF No. 46-4. Plaintiff's alleged religion has no official texts, writings, or codes. PSDF 35. It also has neither an official clergy nor a formal organizational structure or hierarchy. PSDF 36.
In her response to interrogatories, Plaintiff offered additional information about her alleged religious beliefs. She writes that "[t]he concept of the divine feminine (and corresponding concept of the divine masculine) and Goddess worship has existed since ancient times and has taken many different names...." Kelly Decl., Ex. S (Andrea Bordeaux's response to Defendants' Interrogatories, Set 1) at 3, ECF No. 45-2. She describes her alleged religion
Plaintiff makes a number of objections to the form of the interrogatory questions. First, the Court notes that "[t]he federal rules specifically authorize the use of interrogatory answers in summary judgment practice." Alaska Ctr. For the Env't v. Browner, 20 F.3d 981 (9th Cir. 1994). At the summary judgment stage, courts focus on the admissibility of the contents of evidence as opposed to that evidence's form. Fraser, 342 F.3d at 1036-37. Most of Plaintiffs objections are boilerplate objections alleging that the question asked is compound or vague. Other objections more specifically target specific phrases that Plaintiff found vague in Defendants' interrogatory questions. Lastly, many objections claim that the questions asked improperly narrow Plaintiff's religious beliefs to those alleged in her Second Amended Complaint. These are squarely objections directed at the form of the evidence under consideration, and not the evidence itself (the contents of which could come in via myriad ways during trial). All such objections are therefore OVERRULED.
most clearly in the following interrogatory response:
In general, the religion does not focus on negative energy and restricting individuals but encourages each individual to practice in a way that is in line with the natural order of the universe and state of being, including limiting consumption of foreign, inorganic, toxic or chemically laden substances, in order to promote each individual's journey and practice in connecting with the higher spiritual power. Plaintiff's religion honors the free will of individuals, but notes that every action has a direct consequence. For example: eating animals who die in fear results in taking on the energetic/emotional state of that fearful animal. Therefore, Plaintiff does not eat animals, so she does not consume this type of energy, but Plaintiff would never judge or restrict someone else for doing so. Plaintiff's individual practice seeks the embodiment and alignment with the Divine Feminine or the Earth itself. In general, the concept of Mother Earth, The Great Mother, Source, The Most High, or The Divine Feminine is to treat your body as a temple; sacred and holy. Plaintiff practices this religion by not consuming animal products and pharmaceuticals and practicing holistic and natural wellness and healing, therefore Plaintiff cannot agree to the introduction of the COVID-19 Vaccine into her body.
Id. at 8 (emphasis added). Plaintiff takes the following actions to put her alleged religion into practice:
Plaintiff practices daily meditation, breath work, journal scripting, crystal rituals with Yoni Eggs and Wands, Yoni steaming, Yoga, commitment to mindfulness, inner child healing, shadow work, somatic release, intermittent fasting, and regular fasts/cleanses. In addition, she strictly regulates what she consumes by and through all of her senses, and practices natural and holistic healing and wellness and toward that end she does not allow the introduction of foreign, inorganic, toxic or chemically laden substances into her body. This is an ongoing journey of shifting Plaintiff's previous habits. For example, over the past few years, Plaintiff has made changes in the types of cosmetics she uses; she has stopped wearing perfume and synthetic fragrances; and she stopped taking over the counter medications in or about 2016.
Id. at 9 (emphasis added).
By way of providing more historical context on her alleged beliefs, she writes that "[t]he concept of a 'Mother Earth' was first recorded in the early 7th century BCE by the great Greek poet Hesiod. Further, there is archaeological evidence to support the existence of Goddess worship that supersedes current recorded history, dating back more than 10,000 years ago." Id. at 4. Plaintiff claims that she "began a firm dedicated practice about four years ago but she held these beliefs prior to her pursuing a more dedicated practice." Id. at 5. Her first awareness of her alleged religious practice began in 2016, which initiated a learning period culminating in her making significant changes in 2018. Id.
Plaintiff also articulated several alleged beliefs about germ theory and the science of vaccines. In a live video stream posted on the social networking site Instagram, Plaintiff stated that "germ theory ... is false. It's an illusion." Kelly Decl., Ex. Q (Andrea Bordeaux December 9, 2022, Instagram Live video tr.) at 53:13-14, ECF No. 45-2. She went on to state that "things like contagion, like the idea that I can get you sick is just not true." Id. at 53:22-25.
She repeated these beliefs in her deposition, reiterating that she does not believe viruses exist and that it is her understanding that "there has never been any experimentation that proves that viruses cause illness or that they are contagious." Kelly Decl., Ex. A (Pl. Dep.) at 160:13-17. Instead, Plaintiff understands illness to be the result of what one does with their own body. "[I]t makes more sense to me that what I am doing to myself and to my body is going to determine whether or not I get sick versus me being in the presence of somebody else that is just going to arbitrarily give me something just because we are sharing the same space." Id. at 159:25-160:5.
Plaintiff's alleged beliefs also manifested in a skepticism of the COVID-19 pandemic. By "communing with the divine" and "[o]bserving nature, observing the planetary transits, [and] observing the sun," Plaintiff allegedly came to believe that the death tolls attributed to the pandemic in fact came from other sources. These other sources included "the rising consciousness of the planet [Earth]," caused by a gradual increase in radiation that the sun has been emitting over "the last several years." Id. at 189:2-14. Plaintiff allegedly believes that other deaths attributed to COVID-19 were caused by suicide, poor diet, and increased drug use all caused by lockdown-induced depression and social isolation. Id. at 190:15-20. Plaintiff does not believe that COVID-19 exists at all. PSDF 26. [Redacted]
Additionally, Plaintiff does not believe that the COVID-19 vaccine is effective. She testified at her deposition that she does not believe that the COVID-19 vaccine prevents illness. PSDF 28. She testified that she understood the COVID-19 vaccine to have heavy metals in it. PSDF 29. She also testified that the COVID-19 vaccine alters recipients' DNA. PSDF 29. Referring to the public's widespread use of "experimental technology" contained within the COVID-19 vaccine, Plaintiff testified that she "was not comfortable with being part of that experiment." Kelly Decl., Ex. A (Pl. Dep.) at 295:21-296:2, ECF No. 45-2.
This aversion to vaccination was not unique to the COVID-19 vaccine. Plaintiff testified that she has not taken a vaccine since she was 18 years old, i.e., more than 17 years ago. PSDF 31. When asked where she obtained her information on the danger of vaccines, Plaintiff answered that she derived that information from "[her] own experiences with vaccines." Id. at 113: 18-24. More specifically, a vaccine that she received as a child allegedly made her sick and left her "not feeling well, not feeling like [her] normal self." Id. at 114:21-22, 116:2-6.
F. Costs of Granting Plaintiff an Exemption from Vaccination Requirement
It is undisputed that Defendants determined that Plaintiff could not wear a mask at all times while on set for the filming of RTW's second season. PSDF 39. It is also undisputed that Defendants determined that increased testing would not be a viable alternative to mandatory vaccination to prevent the spread of COVID-19 on set. PSDF 42.
Given the above constraints and the requirements of applicable health and safety guidelines, it is undisputed that accommodating Plaintiff's request would have required Defendants to adopt social distancing protocols to distance Plaintiff from the rest of the cast and crew. PSDF 43. These costs would have included the following: $7,370.00 per week for separate transportation for Plaintiff; $14,000.00 per week for separate personnel to provide hair and makeup services for Plaintiff; $6,960.00 per week for separate costume personnel for
Plaintiff; and $1,500.00 for separate changing rooms and other physical locations to maintain social distancing for Plaintiff. PSDF 44-47. By the Court's calculations, the sum of these costs would have been $29,830 per week. Over the course of the season's production, these costs would have exceeded $300,000.00. PSDF 48.
Defendants would have incurred additional costs if production of RTW's second season had to be temporarily shut down because a central cast member had tested positive for COVID-19. These costs were estimated to be between $150,000.00-$300,000.00 per day. PSDF 49. If Plaintiff was in close contact with someone known to have COVID-19, she would be required to quarantine for five days and wear PPE for five days; in total, Plaintiff's exposure to someone testing positive for COVID-19 would result in ten days in which production would have to either shut down or be dramatically reduced. See PSDF 20. By the Court's calculation, such a shutdown would result in additional production costs of $1,500,000.00-3,000,000.00.
Plaintiff does not dispute the accuracy of the costs listed above; rather, she disputes whether these costs were calculated and considered at the time that she made her request for exemption from the vaccination policy. PSDF 44-49. But whether or not the precise costs were calculated at the time of Plaintiff's request, the substantial sums involved would have been obvious to Defendants given their intimate knowledge of the costs involved in implementing the Season 1 protocols.
In addition to monetary costs, it is undisputed that CTEH determined that unvaccinated individuals were "more likely to (i) spread the virus to others (including to vaccinated individuals); (ii) transmit higher viral loads; and (iii) experience more serious illness and heightened risk of hospitalization upon contracting COVID-19." PSDF 41.
III. Legal Standards
A. Motion for Summary Judgment
Summary judgment should be granted where "the movant shows that 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). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ... [the factual record that] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its initial burden, the non-moving party must demonstrate with admissible evidence that genuine issues of material fact exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("When the moving party has carried its burden under Rule 56 ... its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."). "On an issue as to which the nonmoving party will have the burden of proof ... the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
A material fact for purposes of summary judgment is one that "might affect the outcome of the suit" under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Although a court must draw all inferences from the facts in the non-movant's favor,
id. at 255, 106 S.Ct. 2505, when the non-moving party's version of the facts is "blatantly contradicted by the record, so that no reasonable jury could believe it, [the] court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) . "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun, 509 F.3d at 984 .
B. Title VII
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual" because of that individual's religion. 42 U.S.C. § 2000e-2(a)(1); see also Varkonyi v. United Launch All., LLC, No. 2:23-cv-00359-SB-MRW, 2023 WL 4291649 *2, 2023 U.S. Dist. LEXIS 87697 *5 (C.D. Cal. May 12, 2023) (same). Religion is defined to include "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); Varkonyi, 2023 WL 4291649, *2-3, 2023 U.S. Dist. LEXIS 87697, *5-6 (same). Courts recognize two theories of liability under this provision: disparate treatment and failure to accommodate. Varkonyi, 2023 WL 4291649, *2-3, 2023 U.S. Dist. LEXIS 87697, *5-6 (citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). Plaintiff bases her cause of action on the failure to accommodate theory.
The Ninth Circuit applies a two-part framework for a Title VII religious discrimination claim based on an alleged failure to accommodate a religious belief. Each step is discussed below.
i. Plaintiff Must Establish a Prima Facie Case of Religious Discrimination
First, an employee must set forth a prima facie case that "'(1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement.'" Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (quoting Peterson, 358 F.3d at 606).
A bona fide religious belief is one that is sincerely held. Welsh v. United States, 398 U.S. 333, 339, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) ("In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that '[the] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.'") (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733); see also Keene v. City and Cnty. of San Francisco, No. 22-16567, 2023 U.S. App. LEXIS 11807, 2023 WL 3451687, at *1 (9th Cir. May 15, 2023) (citing U.S. Equal Emp. Opportunity Comm'n, EEOC-CVG-2021-3, Section 12: Religious Discrimination, § 12-I(A)(2), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_9546543277761610748655186 (https://perma.cc/M6QF-LJP8) (hereinafter "EEOC Guidance § 12-I(A)(2)")). In its published guidance, the Equal Employment Opportunity Commission ("EEOC") states that "the sincerity of an employee's stated religious belief is usually not in dispute and is 'generally presumed or easily
established.'" EEOC Guidance § 12-I(A)(2) (quoting Moussazadeh v. Tex. Dep't of Crim. Justice, 703 F.3d 781, 790 (5th Cir. 2012) (case arising under Religious Land Use and Institutionalized Persons Act (RLUIPA))). Put in stronger terms, "[a] court should generally accept the assertion of a sincerely held religious belief." Kather v. Asante Health Sys., No. 1:22-cv-01842-MC, 2023 WL 4865533, at *3, 2023 U.S. Dist. 131899, at *7 (D. Or. July 28, 2023).
Courts have slightly more leeway to evaluate whether a requirement genuinely conflicts with religious belief: the Ninth Circuit has stated that courts need not "take plaintiffs' conclusory assertions of violations of their religious beliefs at face value." Bolden-Hardge v. Off. of the Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023). With that said, "the burden to allege a conflict with religious beliefs is fairly minimal." Id. Crucially, this inquiry is not an inquiry into the reasonableness of a plaintiff's beliefs. Id. When an individual asserts that a requirement burdens their religious beliefs, a court's narrow function is only to evaluate whether a plaintiff "has alleged an actual conflict." Id.
ii. The Burden Then Shifts to Defendant
"Once a prima facie showing has been made [by the plaintiff], the burden shifts to the [defendant] to show that 'it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship.'" Berry, 447 F.3d at 655 (quoting Peterson, 358 F.3d 599 at 606). "Undue hardship is an affirmative defense...." Bolden-Hardge, 63 F.4th at 1224 (citing Tabura v. Kellogg USA, 880 F.3d 544, 557 (10th Cir. 2018)).
The Supreme Court recently clarified the standard for what constitutes an undue hardship. "In common parlance, a 'hardship' is, at a minimum, something hard to bear.... [U]nder any definition, a hardship is more severe than a mere burden.... [A]dding the modifier 'undue' means that the requisite burden, privation, or adversity must rise to an excessive or unjustifiable level." Groff v. DeJoy, 600 U.S. 447, 143 S. Ct. 2279, 2294, 216 L.Ed.2d 1041 (2023). In sum, an "'undue hardship' is shown when a burden is substantial in the overall context of an employer's business." Id. In formulating the standard as such, the Supreme Court definitively rejected the idea that an undue hardship was shown if an accommodation required anything "'more than a de minimis cost.'" Id. The Supreme Court's Groff opinion was intended as a clarification, and not as a significant revision to the relevant body of law on this topic. Id. at 2296 ("We have no reservation in saying that a good deal of the EEOC's guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today.").
"[C]ourts must apply the [undue hardship] test in a manner that takes into account all the 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 2295 (internal quotations and alterations omitted). Non-economic impacts on coworkers can be considered, so long as those impacts are not the result of employee animosity to a particular religion, to religion in general, or the notion of accommodating religious practice. Id. at 2296.
IV. Objections
Plaintiff makes numerous objections to evidence offered by Defendants in support
of their motion for summary judgment. Pl.'s Objs. to Evid. ("POE"), ECF No. 46-6. These objections will be addressed in turn.
A. Objections to Defendants' Statement of Uncontroverted Facts
Plaintiff objects to three statements within Defendants' Statement of Uncontroverted Facts. POE 1-3.
The first statement to which Plaintiff objects is that Plaintiff was reminded on multiple occasions by WPI's representative that she was required to comply with the Season 1 protocols. POE 1. The second statement is that although plaintiff voiced her discomfort with certain aspects of the Season 1 Protocols, she ultimately did comply with them. POE 2. Plaintiff's objections to these statements were overruled in notes 3-4, supra.
The third statement to which Plaintiff objects is that Plaintiff was often required to perform in intimate, romantic scenes with other actors during the first season of RTW. Plaintiff objects to this statement on the basis of lack of personal knowledge. The statement is supported by Joel Meyer's declaration. In his capacity as a Production Executive responsible for overseeing the production and budget for both seasons of RTW, Meyer has abundant information and personal knowledge to testify about matters concerning those protocols, the costs of the show, and potential costs of accommodating Plaintiff's request. See Meyer Decl. at ¶¶ 2-4; Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (personal knowledge and competence to testify can reasonably be inferred from the declarations themselves and from the declarant's position and the nature of their participation in the matters to which they swore). This objection is OVERRULED.
B. Objections to Declaration of Chase Selby
Plaintiff objects to statements that Chase Selby made in his declaration regarding the recording of Plaintiff's January 18, 2022, meeting with representatives of WPI and CTEH. POE 4-7. Such statements include Selby stating that he was informed that Plaintiff recorded the Zoom call, and that Plaintiff contends that other participants orally consented to such recording. POE 4-5. Plaintiff objects that these statements lack foundation and personal knowledge. The Court declines to rule on these objections because the Court does not rely on any of these statements in deciding this motion.
C. Objections to Declaration of Celisse Sauceda
Plaintiff makes nearly identical objections to nearly identical statements statements about recording the January 18, 2022, meeting in the declaration of Celisse Sauceda. The Court declines to rule on these objections for the same reason.
D. Objections to Declaration of Angela Perez
Plaintiff makes several hearsay objections to statements included within Angela Perez's declaration. All such objections are directed towards statements that Perez attributes to Plaintiff. These statements are plainly the statements of an opposing party and are therefore admissible under Fed. R. Evid. 801(d)(2). Accordingly, these objections are OVERRULED.
Plaintiff also objects to Perez's statement that her role in RTW Season 2 would have required frequent and elongated periods of being maskless, in close contact, in an indoor setting, and around other cast and on set employees during scenes that involved actions such as kissing and/or sexual relations, smoking marijuana, yelling, and interacting in crowded locations.
These objections are based on lack of foundation and lack of personal knowledge. Plaintiff is wrong. Perez was heavily involved with CTEH's review of Plaintiff's accommodation request and therefore familiar with the nature of Plaintiff's job obligations. Perez Decl. ¶ 38, ECF No. 45-4. Barthelemy, 897 F.2d at 1018 (personal knowledge and competence to testify can reasonably be inferred from the declarations themselves and from the declarant's position and the nature of their participation in the matters to which they swore). This objection is OVERRULED.
E. Objections to Declaration of Joel Meyer
Plaintiff objects to a long list of statements included in the declaration of Joel Meyer on the grounds that they lack foundation and personal knowledge. POE 15-64. All 49 of these objections are without merit. In his capacity as a Production Executive responsible for overseeing the production and budget for both seasons of RTW, Meyer has abundant information and personal knowledge to testify about matters concerning those protocols, the costs of the show, and potential costs of accommodating Plaintiff's request. See Meyer Decl. at ¶¶ 2-4; Barthelemy, 897 F.2d at 1018 (personal knowledge and competence to testify can reasonably be inferred from the declarations themselves and from the declarant's position and the nature of their participation in the matters to which they swore). These objections are OVERRULED.
F. Objections to Declaration of Kenneth Basin
Plaintiff objects to several statements offered in the declaration of Kenneth Basin on the grounds that they lack foundation and personal knowledge. POE 65-70. These generalized statements concern the nature of the film and television business as well as industry practices. Basin is currently the Global Head of Business Operations (Film/Television) for Riot Games and was previously the Executive Vice President and Head of Business Affairs for Paramount Television Studios. These objections plainly lack merit. See Basin Decl. at ¶¶ 1-3; Barthelemy, 897 F.2d at 1018 (personal knowledge and competence to testify can reasonably be inferred from the declarations themselves and from the declarant's position and the nature of their participation in the matters to which they swore). These objections are OVERRULED.
V. Discussion
A. The Court Will Assume That Plaintiff Has Successfully Made Out a Prima Facie Case of Religious Discrimination
As discussed above, the three elements which a plaintiff must allege to make out a prima facie case of religious discrimination are: (1) plaintiff had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) plaintiff informed their employer of the belief and conflict; and (3) the employer subjected plaintiff to an adverse employment action because of their inability to fulfill the job requirement. Berry, 447 F.3d at 655.
Defendants dispute that Plaintiff has made out a prima facie case on the grounds that she has not demonstrated that she has a bona fide religious belief. They argue that Plaintiff has merely articulated "conspiratorial beliefs about the COVID-19 pandemic and the COVID-19 vaccine," and that these beliefs are "secular, personal, or political views that merit no protection under Title VII." Defs. Mot. for Summ. J. 15-16, ECF No. 45. The EEOC offers the following guidance on the distinction between religious objections to COVID-19 vaccination requirements and
non-religious objections, while noting that they can overlap:
Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII's religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.
U.S. Equal Emp. Opportunity Comm'n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, § L at L.2, EEOC, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L (https://perma.cc/R67U-5ZMX). The Court notes that many, but not all, of Plaintiff's stated objections to the COVID-19 vaccine raise questions of efficacy and long-term effects akin to those which the EEOC has stated do not qualify as religious beliefs. See also Mason v. Brown Cent. Sch. Dist., 851 F.2d 47, 51-52 (2d Cir. 1988) (chiropractic "view of the human body ... which rejects various types of drug and surgical intervention[s] in favor of a belief that 'health comes from within'" held not to be a religious belief for purposes of Title VII protection).
For the purposes of deciding this motion, the Court will assume arguendo that Plaintiff has established a bona fide religious belief. Plaintiff articulates something akin to worship of the entity or entities captured in the following list: "the concept of Mother Earth, The Great Mother, Source, The Most High, or The Divine Feminine." Kelly Decl., Ex. S (Andrea Bordeaux's response to Defendants' Interrogatories, Set 1) at 8. In the context of evaluating whether conscientious objectors to military conscription held truly religious or merely philosophical beliefs that combat is wrong, the Supreme Court offered the following "essentially objective" test: "[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?" United States v. Seeger, 380 U.S. 163, 184, 85 S.Ct. 850, 13 L.Ed.2d 733. Here, the Court will assume that Plaintiff has met this requirement.
The Court makes this assumption despite the fact that there are some facts in the record that undermine Plaintiff's claim that her religious beliefs on the subject of vaccines are bona fide and that they therefore conflict with Defendants' requirement that she receive a COVID-19 vaccine: (1) Plaintiffs distrust of vaccines is rooted in her personal experience allegedly getting sick after receiving a vaccination as a child, and (2) Plaintiff elected to stop getting vaccinations before she became attuned to the divinity that she allegedly worships. PSDF 30; PSDF 31. One possible implication from these facts is that Plaintiff's aversion to vaccination comes from a non-religious incident.
Plaintiff disputes Defendants' characterization of this fact as the definitive source of Plaintiff's skepticism regarding vaccinations on the grounds that this incident was just one source among many. However, they do concede that Plaintiff referred to this as the "general" source of her information regarding the danger of vaccinations. The disputed characterization is therefore not relevant.
But in evaluating this motion, the Court declines to draw this inference. Precedent
cautious against questioning the sincerity of a Title VII plaintiff's alleged religious beliefs. See Kather, 2023 WL 4865533 at *2, 2023 U.S. Dist. 131899 at *3-4 (declining to question the legitimacy of a plaintiff's belief that "low energy constituents in the COVID-19 vaccine would lower the vibrations of her Spirit being, which is opposite to her purpose in life to raise the vibrations of planet [E]arth" (internal quotations and alterations omitted)); Fisher v. Dep't of Fin. Insts., No. C22-5991 TSZ, 2023 WL 6389748 *2, 2023 U.S. Dist. LEXIS 177285 *5 (W.D. Wash. Oct. 2, 2023) (declining to question the legitimacy of a plaintiff's belief that "her body is the craftsmanship of her Creator which her Creator has granted her sole possession, prop[r]ietorship, and use of (internal quotations and alterations omitted)). If accepted as true, Plaintiff's beliefs would conflict with the requirement that she get a COVID-19 vaccine. Bolden-Hardge, 63 F.4th at 1223 ("[T]he burden to allege a conflict with religious beliefs is fairly minimal.").
Defendants do not allege that Plaintiff has failed to make out the second and third requirements of a prima facie case of religious discrimination, i.e., that plaintiff informed their employer of the belief and conflict and that the employer subjected plaintiff to an adverse employment action because of their inability to fulfill the job requirement. The record clearly establishes that these requirements have been shown.
The Court will therefore continue its analysis assuming arguendo that Plaintiff has made out a prima facie case. See Peterson, 358 F.3d at 606 ("Therefore, we will assume arguendo that Peterson could establish a prima facie case.... We make that assumption with considerable reservations, however...."). With that assumption made, the burden shifts to Defendants to show that they could not articulate Plaintiff's beliefs without undue hardship.
B. Accommodating Plaintiff's Exemption Request Would Have Been an Undue Burden for Defendants
As discussed supra in Part III-B-ii, the undue hardship test is fact-specific and should consider "all the 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." Groff, 143 S. Ct. at 2295. Non-economic impacts on coworkers can be considered, so long as those impacts are not the result of employee animosity to a particular religion, to religion in general, or the notion of accommodating religious practice. Id. at 2296. The Court notes that there is no evidence whatsoever in the record that Defendants held any animus towards Plaintiff's religious beliefs. Likewise, there is no evidence in the record that Defendants held any animus towards religion or religious people in general.
Rather than prescribe a way for lower courts to implement the clarification of the Title VII standard that it outlined in Groff, the Supreme Court found it "appropriate to leave the context-specific application of that clarified standard to the lower courts in the first instance." 143 S. Ct. at 2297. The Court finds that no reasonable jury could possibly conclude that accommodating Plaintiff's religious beliefs would not have constituted an undue hardship for Defendants.
i. Granting Plaintiff's Accommodation Request Would Have Created an Undue Hardship by Endangering Plaintiffs Coworkers and Reducing Defendants' Potential to Complete Production of RTW Season 2
The nature of Plaintiff's work required close, unmasked contact with other performers on RTW and. potentially,
members of the crew. CTEH determined that unvaccinated individuals had a greater likelihood of transmitting COVID-19 to others, including vaccinated individuals. Therefore, allowing Plaintiff to perform her work without having received a COVID-19 vaccine would have exposed her coworkers to a greater risk of COVID-19 infection. This heightened risk of exposure could not have been mitigated by Plaintiff wearing PPE, because filming required that she appear in front of the camera without such gear. This burden on Plaintiff's coworkers is in no way based on any form of animus to Plaintiff's beliefs or her status as a religious person.
"[A]n employer may also show hardship on the plaintiff's coworkers," Opuku-Boateng v. California, 95 F.3d 1461, 1468 (9th Cir. 1996). See also Groff, 143 S. Ct. at 2298 (Sotomayor, J., concurring) ("Because the 'conduct of [a] business' plainly includes the management and performance of the business's employees, undue hardship on the conduct of a business may include undue hardship on the business's employees.... Indeed, for many businesses, labor is more important to the conduct of the business than any other factor.") (citation omitted). Accommodating Plaintiff's exemption request would have put the lives of her fellow cast and crew members in danger. Around the time that RTW Season 2 was filming, roughly 2,000 deaths per day were attributable to COVID-19. PSDF 15. In and of itself, this safety risk constitutes an undue hardship. See Kushner v. N.Y.C. Dep't of Educ., No. 22-cv-5265-DLI-VMS, 2023 WL 6214236, *5 (E.D.N.Y. Sept. 25, 2023) ("It is beyond cavil that safety within any work environment... is of absolute importance.... [C]reating a health and safety risk that would have prevented the DOE from fostering a safe educational and work environment... alone would have established an undue hardship...."); Dennison v. Bon Secours Charity Health Sys. Med. Grp., P.C. No. 22-CV-2929 (CS), 2023 WL 3467143, *6 n.7, 2023 U.S. Dist. LEXIS 84888, *15 n.7 (S.D.N.Y. May 15, 2023) ("[T]here is also the obvious hardship associated with the increased health and safety risk posed to other employees and patients by allowing Plaintiffs to remain unvaccinated while working at their respective facilities...."); see also D'Cunha v. Northwell Health Sys., No. 1:22-cv-0988 (MKV), 2023 WL 2266520, *3, 2023 U.S. Dist. LEXIS 33343, *7 (S.D.N.Y. Feb. 28, 2023) (dismissing Title VII claim under pre-Groff standard because reporting to a worksite unvaccinated "posed 'an unacceptable health and safety threat to patients, co-workers, and visitors'").
In addition to posing an undue hardship to Plaintiff's coworkers, these safety risks would have been an undue hardship for Defendants. Being forced to replace cast and crewmembers who became incapacitated due to serious illness or even death during production would have been time-consuming and expensive, while also running the risk of production delays. If a central member of the cast became incapacitated mid-filming, they would likely have been impossible to replace without major (and presumably costly) adjustments to the plot of Season 2. At the time, these possibilities were hardly too speculative to be considered.
Plaintiff's increased risk of catching and transmitting COVID-19 to her coworkers would have entailed numerous logistical problems in addition to the obvious health and safety risks outlined above. Plaintiff's mere exposure to someone who had tested positive for COVID-19 would have resulted in a guaranteed ten-day shutdown under the Season 2 protocols; had Plaintiff infected another cast member with COVID-19, such a shutdown could have dragged on even longer as that other cast member
would have needed time to recover from the disease and to ensure that they were no longer contagious. Defs.' Mot. for Summ. J. 14, ECF No. 45. Defendants offered evidence that multiple shutdowns could result in the inability to complete production of RTW Season 2. Sealed Decl. in Supp. of Appl. (Suppl. Decl. Joel Meyer) ¶ 20, ECF No. 64-1. The temporary or permanent cessation of production on RTW Season 2 would have constituted an obvious undue hardship for Defendants. This hardship is apparent even without considering the estimated daily cost of a production shutdown, which was between $150,000.00-$300,000.00. PSDF 49.
Numerous courts have found the possibility of an unvaccinated individual getting others sick to be a non-speculative risk that a court may consider when performing an undue hardship analysis. See Aukamp-Corcoran v. Lancaster Gen. Hosp., No. 19-5734, 2022 WL 507479, *6 (E.D. Pa. Feb. 18, 2022) (considering the risk of unvaccinated Plaintiff getting others sick); Robinson v. Children's Hosp. Boston, No. 14-10263, 2016 WL 1337255, *9 (D. Mass. Apr. 5, 2016) (same); O'Hailpin v. Hawaiian Airlines, Inc., 583 F. Supp. 3d 1294, 1309-10 (D. Haw. 2022) (considering the "increased risk that unvaccinated employees in close quarters pose to other employees and passengers"); Barrington v. United Airlines, Inc., 566 F. Supp. 3d 1102, 1109 (D. Colo. 2021) (considering risk of unvaccinated employee getting others sick when deciding Title VII undue hardship). These cases 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. While these cases were all decided before the Supreme Court issued its opinion in Groff, they nevertheless remain persuasive post-Groff.
As such, Plaintiff's reliance on Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981), cert. denied sub nom United Steelworkers of America v. Tooley, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) is misplaced. Plaintiff cites the case for the proposition that "[u]ndue hardship cannot be supported by merely conceivable or hypothetical hardships.... The magnitude as well as the fact of hardship must be determined by 'actual imposition on co-workers or disruption of the work routine.'" Pl.'s Opp. to Defs. Mot. for Summ. J. 11, ECF No. 46 (quoting Tooley, 648 F.2d at 1243). But the district court in Tooley v. Martin-Marietta Corp., 476 F. Supp. 1027, 1030-31 (D. Or. 1979), aff'd 648 F.2d 1239 (9th Cir. 1981), had come to the following factual conclusion: "The likelihood that the union will ever be burdened by the few members who refuse to pay union dues because of religious beliefs is remote." Once again, Groff tells us that evaluating undue hardship requires a close attention to the facts. And the facts in this case clearly demonstrate that a shutdown was likely. Remember, such a shutdown could be triggered merely because Plaintiff came into close contact with someone testing positive for COVID-19 (in any location, on-set or off-set) during a time in which the United States was averaging around 800,000 new cases of the disease daily.
The facts also show that Plaintiff's citation to EEOC v. Alamo Rent-A-Car, LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006), is equally misguided. Plaintiff claims the court ruled that "'hypothetical hardships' based on assumptions or 'pure speculation' about accommodations which have never been put into practice are insufficient to show undue hardship." Pl.'s Opp. to Defs. Mot. for Summ. J. 11, ECF No. 46 (quoting Alamo, 432 F. Supp. 2d at 1016). In Alamo Rent-A-Car, the plaintiff wanted to wear a headscarf in violation of company policy; the only resulting hardship that
defendants could name was that this would open the floodgates to other employees violating the uniform policy resulting in potential dilution of "the customer image." Alamo, 432 F. Supp. 2d at 1016. As discussed above, this conjectural hardship is completely different from the very likely hardship alleged by Defendants here.
ii. The Increase in Day-to-Day Costs Which Defendants Would Have Incurred by Accommodating Plaintiff's Exemption Request Also Constituted an Undue Hardship
Defendants estimated that, in addition to the risks outlined above, accommodating Plaintiff's exemption request would have come with a guaranteed price tag of $300,000.00; Defendants argue that being forced to pay this amount would be an undue hardship.
This significant expenditure constitutes an undue burden. The costs associated with Plaintiff's accommodation would have lasted for the entire production of RTW Season 2 and would have been duplicative of services that Defendants were already paying for. See DeVore v. Univ. of Ky. Bd. of Trs., No. 5:22-cv-00186-GFVT-EBA, 693 F.Supp.3d 757, 766 (E.D. Ky. Sept. 20, 2023) ("... University officials at the time would have been hiring an extra employee for an indefinite period. Rather than a mere temporary payment of premium wages for a substitute, [hiring an in-person worker to replace a worker who wanted to work remotely due to reluctance to get a COVID-19 vaccine] would mean an indefinite payment of an entire salary for duplicative work.... Any reasonable jury would find this too amounts to a substantial burden." (citation omitted)); Conner v. Raver, No. 22-cv-08867-JST, 2023 WL 5498728, *6, 2023 U.S. Dist. LEXIS 149360, *14-15 (N.D. Cal. Aug. 24, 2023) ("For the City to have granted Plaintiff's requested accommodation would have required the City either to hire an additional employee to perform the duties Plaintiff was hired to perform, or to otherwise overhaul its operations in a manner that permitted the job of Executive Assistant to be performed remotely. Either course of action would necessarily have resulted in substantially increased costs in relation to the conduct of the City's particular business.").
Plaintiff argues that these expenditures should not be labeled increased costs, but rather reduced savings compared to the costlier protocols implemented on RTW Season 1. Pl.'s Suppl. Br. in Opp. to Defs.' Mot. for Summ. J. 4. The Court finds this reasoning unpersuasive. Such costs were unavoidable during the production of RTW Season 1; they became avoidable during the production of Season 2, and any rational business would therefore seek to avoid them. Moreover, very little would change in the Court's analysis if Defendants had been filming the first season of the show rather than the second under the Season 2 protocols; the expenditure of an additional $300,000.00 on duplicative work and employees would still constitute an undue burden. Plaintiff's savings argument is also defeated by the potential for a complete shutdown of production due to Plaintiff's unvaccinated status, which would have erased any potential savings whatsoever. The cost of a ten-day shutdown was valued at approximately $1,500,000.00-3,000,000.00. Moreover, such a shutdown would happen if Plaintiff were exposed to someone who tested positive for COVID-19. As discussed in Section V-B-i supra, such a possibility was hardly remote or speculative.
In its rejection of the 'more than de minimis' standard, the Supreme Court in Groff instructed that "[w]hat is most important is that 'undue hardship' in Title VII means what it says, and courts should
resolve whether a hardship would be substantial in the context of an employer's business in the common-sense manner that [they] would use in applying any such test." 143 S. Ct. at 2296. The Court concludes that the burdens involved here are objectively substantial.
iii. Plaintiff's Focus on the Financial Relationships of Defendants is Misguided
Defendants assert, and Plaintiff concedes, that WPI did not share employees with co-defendant LGEI. Defs.' Mot. for Summ. J 18, ECF No. 45; Pl.'s Opp. to Defs.' Mot. for Summ. J. 8 n.2, ECF No. 46. Plaintiff stated that she intended "to seek a leave to amend her complaint in order to include the proper entity." Id. That proper entity would have been Lions Gate Television, Inc. ("LGTV"). Plaintiff neither amended her complaint nor sought leave to do so. Had they done so, nothing in the Court's analysis would have changed.
Plaintiff attempts to use the relationships between LGEI, LGTV, and WPI to establish that all three entities are a part of LGEI's "multi-billion[-]dollar enterprise." Pl.'s Suppl. Br. in Opp. to Defs.' Mot. for Summ. J. 4, ECF No. 52. Plaintiff's argument is that accommodating her exemption request would be an insignificant monetary expense relative to the scale of Defendants' business. The Court finds numerous problems with this line of thinking. To begin with, such thinking suggests that a financially well-resourced defendant could almost never make out a successful undue hardship defense. That outcome would constitute a radical departure from existing caselaw; such a departure is not consistent with the language in Groff that describes that opinion as merely a clarification of existing law. 143 S. Ct. at 2296. Further, such thinking would result in strange outcomes that defy the sort of common-sense analysis that the Supreme Court encouraged district courts to perform. Id. at 2296. For example, imagine a hypothetical corporate defendant losing hundreds of millions of dollars per year. From that defendant's point of view, would it really be an undue hardship to ask them to lose an extra $500,000.00 per year? Likely not. After all, it would only be a slightly greater loss. But to require a business to magnify its own losses turns the idea of an undue hardship on its head. Plaintiff's theory superficially resonates with the language in Groff that encourages courts to take "into account all the 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 2295. But this analysis reduces Title VII to nothing more than rote arithmetic.
The Court agrees Groff requires financial analysis; in performing that analysis, it finds it more appropriate to view RTW and its finances in isolation rather than to consider the entire portfolio of these companies. See DeVore v. Univ. of Ky. Bd. of Trs., No. 5:22-cv-00186-GFVT-EBA, 693 F.Supp.3d 757, 765-66 (E.D. Ky. Sept. 20, 2023) (evaluating undue hardship from the perspective of the Office for Policy Studies on Violence Against Women within the University of Kentucky's College of Arts and Sciences, rather than from the perspective of the University of Kentucky as a whole). The Court's analysis in part V-B-ii is consistent with this view. The Court also notes that its analysis in part V-B-i (regarding risks to the health and safety of Plaintiff's coworkers) is completely unaffected by which Defendants are parties to this action. It would not be less of an undue hardship to put the lives of dozens of coworkers in danger whether a company employed one hundred employees or one thousand.
Even in the scenario most favorable to Plaintiff, wherein WPI is nothing more than a vessel for LGTV to use to park its resources during production, the Court's analysis does not change.
Lastly, had Plaintiff filed a motion to amend her complaint, the Court would not have been procedurally bound to defer or delay ruling on the present motion. District courts have discretion over granting permission to amend complaints once responsive pleadings have been served. Fed. R. Civ. Proc. 15(a)(2). While such leave should be freely granted, discretion remains important because of the risk that "[a] plaintiff who proposes to amend his complaint after the defendant has moved for summary judgment may be maneuvering desperately to stave off the immediate dismissal of the case." Cowen v. Bank United, FSB, 70 F.3d 937 (7th Cir. 1995) (Posner, C.J.). Factors that a district court can consider in exercising that discretion include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the moving party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Here, the Court finds that the futility of such an amendment is the most important consideration. Nothing in this Court's analysis would change in LGTV had been joined as a defendant. Finally, the Court reiterates that Plaintiff did not pursue any such amendment.
iv. Defendants Correctly Considered Other Options
Plaintiff makes much of the following language in Groff.
Title VII requires that an employer reasonably accommodate an employee's practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.... This distinction matters. Faced with an accommodation request like Groff's, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.
143 S. Ct. at 2296-97. Plaintiff alleges that Defendants rejected her good faith suggestions for accommodation out of hand without considering alternatives. Pl.'s Suppl. Br. in Opp. to Defs.' Mot. for Summ. J. 5-6. The record contradicts this claim. Defendants considered a variety of options, including having Plaintiff test more frequently, having Plaintiff wear PPE, and reclassifying Plaintiff into a different "zone," but found that none of them were viable options.
VI. Conclusion
After much discussion, the Court will briefly restate its analysis. First, it implemented the burden-shifting framework used to evaluate a Title VII failure to accommodate claim. The Court assumed arguendo that Plaintiff had made out a valid prima facie case of religious discrimination. It then shifted the burden to Defendants to show that Plaintiff's religious beliefs could not have been accommodated without undue hardship. Crucially, the Court implemented the Supreme Court's Groff opinion, which clarified that undue hardships under Title VII could not be de minimis. The Court found that no reasonable jury could conclude that Defendants had not met their burden. Defendants clearly showed that accommodating Plaintiff's
religious beliefs would have endangered the safety of her coworkers, would have jeopardized the likelihood that Season 2 of RTW would be completed, and would have had a price tag in the objectively burdensome amount of $300,000.00. Defendants also showed that they considered a variety of accommodation options, but that none would prevent accommodating Plaintiff from being an undue hardship. Lastly, none of these hardships stem from animus towards Plaintiff's religion or towards religion generally.
For the foregoing reasons, the court GRANTS Defendants' request for summary judgment.
IT IS SO ORDERED.