Opinion
3:23-cv-01528-JR
07-18-2024
REBECCA BURTON, an individual, MICHAEL HARPEL, an individual, JINA LEHMAN, an individual, GALINA LOPUGA, an individual, LORI SAHLIN, an individual, and LUDMYLA PANOV, an individual, Plaintiffs, v. LEGACY HEALTH, a corporation, Defendant.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Rebecca Burton, Michael Harpel, Jina Lehman, Galina Lopuga, Lori Sahlin, and Ludmyla Panov bring this religious discrimination suit against defendant Legacy Health (“Legacy”). Plaintiffs now move for leave to file their First Amended Complaint (“FAC”) pursuant to Fed.R.Civ.P. 15. For the reasons stated below, plaintiffs' motion should be denied.
BACKGROUND
Legacy, a non-profit organization located in Portland, Oregon, employed plaintiffs at various healthcare facilities.
In August 2021, at the height of the pandemic, Governor Brown sought to limit the spread of the potentially deadly coronavirus in the state's healthcare facilities by issuing an executive order requiring healthcare workers to be vaccinated against COVID-19 by October 18, 2021. Johnson v. Brown, 567 F.Supp.3d 1230, 1238 (D. Or. 2021). The rules effectuating Governor Brown's vaccine mandate were promulgated by the Oregon Health Authority. In accordance with those rules, Legacy required all of its employees to be vaccinated against COVID-19 by September 30, 2021. Plaintiffs each sought, and were denied, religious exemptions to Legacy's vaccine requirement.
On October 17, 2023, plaintiffs initiated this lawsuit asserting failure to accommodate claims under Title VII and Or. Rev. Stat. § 659A.030(1)(a). On December 26, 2023, Legacy moved to dismiss plaintiffs' complaint except as to Harpel and Panov's claims, each of whom relied on the use of aborted fetal cells in the vaccine's development in seeking a religious exception. On March 22, 2024, the Court granted Legacy's motion as to Burton, Lehman, Lopuga, and Hickman's claims. See generally Burton v. Legacy Health, 2024 WL 1241612 (D. Or. Feb. 28), adopted by 2024 WL 1241450 (D. Or. Mar. 22, 2024).
On May 13, 2024, plaintiffs filed the present motion to amend the complaint. Briefing was completed in regard to that motion on July 9, 2024.
STANDARD OF REVIEW
Leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Courts apply Rule 15 with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining whether a motion to amend should be granted, the court generally considers four factors: (1) undue delay; (2) bad faith; (3) futility; and (4) prejudice to the opposing party. Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997) (citation omitted).
These factors are not weighted equally: “futility of amendment alone can justify the denial of a motion [to amend].” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009). A proposed amendment is futile if it would be immediately “subject to dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). Thus, the proposed complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
DISCUSSION
The FAC includes three key amendments. First, “Burton, Lehman, Lopuga and Sahlin seek to add greater detail and context to the nature of their religious beliefs and its connection to their inability to take the COVID-19 vaccine.” Pls.' Mot. Am. 2 (doc. 22). Second, the FAC asserts a number of new legal theories - namely, “wrongful termination,” “disparate treatment and disparate impact,” “wrongful reduction in pay,” “retaliation,” “failure to provide reasonable accommodation,” and “company-wide, or systemic, discriminatory pattern or practice.” Proposed FAC ¶¶ 209, 218 (doc. 22-1).
Third, the FAC seeks to add an additional 49 “Plaintiffs under the ‘piggyback rule'” (“Proposed Plaintiffs”).Pls.' Mot. Am. 2 (doc. 22). In addition to asserting some of the same claims noted above, the Proposed Plaintiffs also allege disability discrimination under Oregon/federal law, as well as religious and disability discrimination under Washington state law. Id. at 5; Proposed FAC ¶¶ 211-12, 217-32 (doc. 22-1).
As of the date of this Findings and Recommendation, 16 of the 49 Proposed Plaintiffs have “filed separate, duplicative lawsuits against Legacy.” Def.'s Notice of Related Filings 3 (doc. 35).
Legacy characterizes plaintiffs' motion as “an extraordinary and inappropriate expansion of this litigation.” Def.'s Resp. to Mot. Am. 2 (doc. 31). In particular, Legacy argues that leave to amend should be denied because: (1) “the Proposed Plaintiffs cannot be properly joined under [Fed. R. Civ. P. 20(a)] and plaintiffs' counsel knows this”; (2) the proposed FAC alleges “federal claims that have not yet been exhausted before the Equal Employment Opportunity Commission (‘EEOC'),” federal and state law claims that are untimely, and “state law claims over which this Court lacks jurisdiction”; and (3) “Lehman and Sahlin still have not pled facts sufficient to support their original failure to accommodate claim.” Id. at 3, 18, 20.
I. Rule 20 Joinder
Under Rule 20(a), plaintiffs “may” be joined in an action if their claims arise from “the same transaction, occurrence, or series of transactions or occurrences,” and involve some common “question of law or fact.” Fed.R.Civ.P. 20(a)(1). The first prong “refers to similarity in the factual background of a claim.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). “[M]ere allegation[s]” of broadly shared circumstances are insufficient to establish the existence of a common “transaction or occurrence.” Id. Concerning the second prong, if each plaintiff “presents a different factual situation” - such as in the case of separate applications - “personalized attention” from the defendant “and, ultimately, by the Court,” is required, such that commonality is lacking. Id.
The Proposed Plaintiffs satisfy neither of Rule 20(a)'s requirements. The Proposed Plaintiffs were employed in a variety of roles - e.g., registered nurse, pharmacy technician, implant specialist, client service representative, laboratory assistant, etc. - in different departments and locations across two states. See, e.g., Proposed FAC ¶¶ 30, 33, 42, 45, 100, 104, 120, 123 (doc. 22-1). They sought exemptions to Legacy's COVID-19 vaccine requirement for myriad, personal religious or spiritual convictions. See generally id. Further, a handful of the Proposed Plaintiffs also (or solely) allege that they sought medical exemptions based on their particular health conditions, raising not only individualized fact questions, but also legal issues not shared by those who have not plead disability discrimination.
In sum, the Proposed Plaintiffs' experiences are “too factually disparate to arise out of the same transaction, occurrence, or series of transactions or occurrences.” SeeAlvarado v. City ofL.A., 720 Fed.Appx. 889, 904 (9th Cir. 2018) (Rule 20 joinder inappropriate where the plaintiffs did “not allege any greater connection between their claims than that the City's employees violated the FLSA in comparable ways, at various different times, and in various different divisions and bureaus”). Nor do the Proposed Plaintiffs' claims share a common question of law or fact -“[n]othing unites” them “but the superficial similarity of their allegations and their common choice of counsel.” SeeVisendi v. Bank of Am., N.A., 733 F.3d 863, 870 (9th Cir. 2013) (Rule 20 joinder improper where the plaintiffs' claims “each require particularized factual analysis”).
As Chief District Judge McShane recently explained in striking an amended complaint under virtually identical circumstances:
The conglomeration of the seventeen plaintiffs involved in this case is a gross misapplication of joinder under the Federal Rules of Civil Procedure . . . As the Court discussed in an earlier order, it has become a practice of Plaintiffs' Counsel to file multi-party complaints that join separately-situated plaintiffs in an apparent effort to avoid filing fees. See Order, ECF No. 23, Wolfe v. Asante, Case No. 1:23-cv-01671 (D. Or. May 8, 2024) (compiling cases).Here, even after reviewing the
Amended Complaint and holding oral argument, the Court is unsure how Counsel determined which parties and claims are appropriate for joinder. The plaintiffs are employed in different positions, work at different locations, and allege different claims based on their individual beliefs. At trial, Defendant would likely be unfairly prejudiced by having all remaining plaintiffs testify to their individual discrimination claims. Moreover, the jury would need to keep track and assess the individual claims brought by each individual plaintiff, inevitably creating a high risk of jury confusion.Bowerman v. St. Charles Health Sys., 2024 WL 3276131, *11 (D. Or. July 1, 2024).
In Wolfe, Chief District Judge McShane observed that, identical to this case, the only connection between the proposed group of plaintiffs “appears to be that each . . . worked in the health care field at one of the Defendant's facilities during the COVID-19 pandemic and were terminated for failing to comply with Defendant's COVID-19 vaccine mandate.” Opinion & Order 2 (May 8, 2024) (Case No. 1:23-01671-MC, doc. 23) (citation and internal quotations omitted). Chief District Judge McShane went on to note that, “even if Plaintiffs' claims could potentially be joined under Rule 20,” litigation of their collective claims would be unacceptable: “It has become a practice of Counsel to file multi-party complaints that join separately situated plaintiffs employed in different positions at different locations. The Court does not see any benefit to Counsel's practice, to the parties, or to the Court - except an avoidance of the Court's filing fee. But it should not - and will not - be the burden of the Court or opposing counsel to figure out which of Plaintiffs' claims are appropriate for joinder when Counsel has done so little to define them as belonging in a single pleading.” Id. at 2-4 (internal citations omitted).
Counsel has provided no explanation for her decision to attempt to add 49 plaintiffs via the FAC or how the concerns articulated by Chief District Judge McShane would be ameliorated in this case. In fact, she does not even address Rule 20 or permissible joinder in her initial motion. Her only argument in favor of adding the Proposed Plaintiffs is that “she is not trying to avoid filing fees, but to add Plaintiffs that otherwise would not be able to bring their cases to Court unless they did so under this ‘piggy-back' rule . . . [doing so] will also serve to consolidate and streamline outstanding claims against Legacy to that they can be more efficiently litigated in one proceeding.” Pls.' Mot. Am. 2 (doc. 22).
Yet plaintiffs' assertion that joinder will enable greater efficiency is unavailing as addressed herein. That is, “given the many dozens of individual fact patterns and claims at issue, joinder risks creating an unwieldy morass of a case from which both Legacy and this Court will struggle to extract order and clarity.” Def.'s Resp. to Mot. Am. 10 (doc. 31). This is especially true in regard to the Proposed Plaintiffs who seek to proceed under a theory of disability discrimination. Cf.Gronowicz v. Coll. of Staten Island, 359 F.Supp.2d 243, 248 (N.D. N.Y. 2005) (“claims alleging discrimination based upon a protected classification which are different than the protected classification asserted in administrative filings are not reasonably related”). Accordingly, plaintiffs' motion is denied in regard to the joinder of the Proposed Plaintiffs.
II. Timeliness of the Proposed Plaintiffs' Claims
Even assuming the Proposed Plaintiffs met the requirements for joinder, most of their claims are barred by the 90-day statute of limitations imposed by the right-to-sue letters issued by the Oregon Bureau of Labor and Industries (“BOLI”) and/or EEOC.
Plaintiffs are correct that “an aggrieved employee who fails to file a timely charge with the EEOC may still be able to pursue a claim under the piggyback or single-filing rule, in which the employee piggybacks onto the timely charge filed by another plaintiff for purposes of exhausting administrative remedies.” Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1202 (9th Cir. 2016) (citation and internal quotations omitted). However, “Ninth Circuit courts have consistently refused to apply the piggyback rule where a plaintiff has filed an administrative claim and then failed to file a timely federal suit.” Bowerman, 2024 WL 3276131 at *9 (collecting cases). In other words,
[d]ifferent policy considerations are at issue where a plaintiff has allowed a suitfiling deadline to lapse after obtaining a right-to-sue letter. Allowing such a deadline to lapse would demonstrate dilatoriness or lack of diligence (or waiver); not allowing “piggybacking” would be consistent with the policy behind enforcing statutory deadlines. Once that filing date has passed, he or she might properly be barred for reasons of repose from “piggybacking” on a more diligent plaintiff.U.S. Equal Emp. Opportunity Comm'n v. NCL Am. Inc., 504 F.Supp.2d 1008, 1013 (D. Haw. 2007); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1224 (5th Cir. 1995) (an individual “is bound by the parameters of his own EEOC charge, and cannot subsequently utilize the single filing rule to avoid the statute of limitations”), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 565 (2d Cir. 2006) (“[a]n individual who has previously filed an EEOC charge cannot piggyback onto someone else's EEOC charge”), aff'd, 552 U.S. 389 (2008). Indeed, even plaintiffs recognize that “individuals who receive right-to-sue letters must adhere to the statute of limitations and file suit within ninety days to preserve their claims, as they can't rely indefinitely on another claimant's actions.” Pls.' Reply to Mot. Am. 8 (doc. 34).
Yet “the vast majority” of the Proposed Plaintiffs appear to have filed charges with the EEOC, BOLI, and/or Washington State Human Rights Commission. Def.'s Resp. to Mot. Am. 14 (doc. 31); Baumgart Decl. ¶ 7 (doc. 32).As such, the Proposed Plaintiffs who received right-to-sue letters and nonetheless failed to file their claims within the requisite 90-day period are barred from resurrecting their claims under the “piggyback” rule. By extension, this Court lacks pendent jurisdiction over any state law claim asserted by a Proposed Plaintiff who lodged administrative charges. See Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001) (“where there is no underlying original federal subject matter jurisdiction, the court has no authority to adjudicate supplemental claims under § 1367”).
Although administrative charges are not attached to the FAC, the original six plaintiffs expressly allege that they “have exhausted their administrative remedies through the U.S. Equal Employment Opportunity Commission and are bringing this Complaint within the 90-day time limit allocated to them by statute. Plaintiffs' counsel seeks to add additional plaintiffs under the Ninth Circuit's ‘piggy-back rule' allowing an employee to ‘piggy-back' on a timely-filed charge made by a similarly situated co-worker.” Proposed FAC ¶ 2 (doc. 22-1). The administrative charges are thus central to plaintiffs' claims. See Gimby v. Or. Health & Sci. Univ. Sch. of Nursing, 2024 WL 3027858, *2-3 (D. Or. June 14, 2024) (discussing the doctrine of incorporation by reference); see also Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006) (court may take judicial notice of extrinsic documents that are undisputed and integral to the plaintiff's claims).
III. Sahlin and Lehman's Failure to Accommodate Claims
To establish a prima facie case for religious discrimination based on a failure-to-accommodate under Title VII, the plaintiff must demonstrate that: (1) she “had a bona fide religious belief, the practice of which conflicted with an employment duty”; (2) she “informed [her] employer of the belief and conflict”; and (3) “the employer discharged, threatened, or otherwise subjected [her] to an adverse employment action because of [her] inability to fulfill the job requirement.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). If the plaintiff “makes out a prima facie failure-to-accommodate case, the burden then 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.” Id. (citations and internal quotations omitted).
“Claims brought under [Oregon law] are analyzed under the same framework as claims brought under Title VII.” El v. United Parcel Serv., Inc., 2020 WL 2616397, *3 (D. Or. May 22, 2020).
As noted above, plaintiffs include a “wrongful reduction in pay” theory in the FAC due to being “plac[ed] on unpaid administrative leave after they submitted a religious exemption prior to termination.” Proposed FAC ¶¶ 209, 215, 218 (doc. 22-1). However, the FAC does not plead facts suggesting that plaintiffs had their compensation reduced. Any compensation-related claims thus fall within the purview of plaintiffs' failure to accommodate theory.
Concerning the first prima facie element, Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998) (quoting 42 U.S.C. § 2000e-2(a)(1)). Nevertheless, “Title VII does not protect secular preferences.” Id. at 682.
Specific to COVID-19 vaccination mandates, the EEOC has provided guidance to employers navigating claimed religious exemptions, explaining that, “although Title VII prohibits employment discrimination based on religion, an employee's request for an exemption from a COVID-19 vaccination mandate can be denied on the ground that the employee's belief is not truly religious in nature[.]'” Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1180 (9th Cir. 2021). The EEOC's guidance notes objections 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)” are not protected by Title VII. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Oct. 25, 2021), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L. “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.” Id.
Federal district courts have grappled with the contours of the first prima facie element. Title VII broadly defines religion and “American courts are loath to tell a person that his interpretation of his faith is a wrong one.” Hittle v. City of Stockton, 2022 WL 616722, *5 (E.D. Cal. Mar. 2, 2022), aff'd, 76 F.4th 877 (9th Cir. 2023). At the same time, courts have generally been hesitant to find broad statements of religious opposition sufficient to state a viable claim. See Bolden-Hardge v. Office of the Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023) (courts are not required to “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value”); see also Kather v. Asante Health Sys., 2023 WL 4865533, *5 (D. Or. July 28, 2023) (“vague expressions of sincerely held Christian beliefs alone cannot serve as a blanket excuse for avoiding all unwanted employment obligations” and a “‘threadbare reference' to religious beliefs is insufficient at the motion to dismiss stage”).
Accordingly, Title VII claims surrounding COVID-19 vaccine mandates and corresponding accommodations have necessitated that courts undertake the delicate task of differentiating between what beliefs are religious and which are not. Cf.Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (“the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests”); see also Mason v. Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 51 (2d Cir. 1988) (“[a]n individual's assertion that the belief [is religious does not] automatically mean that the belief is religious . . . a threshold inquiry into the religious aspect of particular beliefs and practices cannot be avoided if we are to determine what is in fact based on religious belief, and what is based on secular or scientific principles”) (collecting cases).
As the Court previously explained, “[t]o the extent the complaint's allegations invoke [Lehman and Sahlin's] Christian faith, [they] failed to identify any religious tenet or teaching that conflicts with Legacy's policy.” Burton, 2024 WL 1241612 at *3. In response, the FAC pleads in regard to Lehman:
[She] believes that health choices are religious choices. She believes that everything she does, and especially what she puts in her body, is a spiritual matter and is to be done with the purpose of glorifying God. The bible states “Or do you not know that your body is the temple for the Holy Spirit who is in you, whom you have from God, and you are not your own? For you were bought at a price; therefore, glorify God in your body and in your spirit, which are God's” (Corinthians 6:19-20). [Lehman] believes that she could not, in good conscience, be forced to get the vaccine under the threat of losing her job and financial stability, because a decision made under that circumstance is NOT from God.
Proposed FAC ¶ 19 (doc. 22-1). And concerning Sahlin, the FAC now asserts:
She believes that she was created perfectly by God and lives her faith by placing her trust in God. [She] was raised to read the bible and believe in God's healing power and where vaccines were not allowed as they would interfere with God-given natural healing abilities. When the pandemic arrived, [Sahlin] heard “fear not, for I am with you.” She was guided to worship at a bible teaching church and strengthened and renewed her faith through prayer and bible study. Throughout her years, [Sahlin's] strongest belief is to never put another god before the one true God. She believes that anything in the world that tries to compete with God can become an idol and separates us from God. [she] watched as the COVID-19 vaccine became the idol of the world, and observed as the vaccine was pushed as the only
thing, a savior, with no reliance or regard for God. This was a moral issue for her, and she trusted in God, not man to keep her safe.Id. at ¶ 26.
As an initial matter, it is unclear from the FAC which of plaintiffs' beliefs were actually communicated to Legacy. In any event, while Lehman and Sahlin's new allegations provide some context for their faith, their failure to accommodate claims still fail at the pleading level. Judges within this district and throughout the Ninth Circuit hold differing views on how much a plaintiff must plead to assert a bona fide religious belief. Nonetheless, the undersigned is aligned with those courts that are hesitant to find broad statements of religious opposition sufficient to state a viable claim, particularly given that plaintiffs are required to plead more than conclusory allegations that merely recite the elements of a given cause of action. SeeAshcroft, 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not adequate). Lehman and Sahlin simply neglect to provide any details about their how their bona fide religious beliefs conflict with Legacy's vaccination requirement.
Precedent makes clear that “[a]n employee cannot shirk his duties to try to accommodate himself or to cooperate with his employer in reaching an accommodation by a mere recalcitrant citation of religious precepts.” Chrysler Corp. v. Mann, 561 F.2d 1282, 1285-86 (8th Cir. 1977); see also Geerlings v. Tredyffrin/Easttown Sch. Dist., 2021 WL 4399672, *7-8 (E.D. Pa. Sept. 27, 2021) (“[r]eligious adherents often profess that faith inspires much of their secular lives, but those activities are still secular . . . it takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious”); Nogowski v. St. Charles Med. Ctr., 2023 WL 7003702, *4 (D. Or. Oct. 24, 2023) (granting the defendant's Rule 12(b)(6) motion where the plaintiff's religious objections were stated “vaguely and in conclusory fashion,” referring to herself as “a child of god” imbued with the “free will” to refuse to be vaccinated).
Stated differently, while the applicable pleading standard is fairly minimal, the employee nonetheless bears the burden of establishing that “she informed her employer of the [bona fide religious] belief and conflict.” Tiano, 139 F.3d at 681. Plaintiffs' motion is denied as to Lehman and Sahlin's religious discrimination/failure to accommodate claims.
IV. Plaintiffs' New Legal Theories
“[I]t is well settled that a Title VII plaintiff must exhaust administrative remedies by filing a timely EEOC charge, and allegations not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Belciu v. Legacy Health, 2024 WL 3293896, *5 (D. Or. May 22), adopted by 2024 WL 3292909 (D. Or. July 3, 2024) (citations and internal quotations, brackets, and ellipses omitted).
Here, the six original plaintiffs' administrative charges alleged only that Legacy failed to accommodate their religious beliefs.Baumgart Decl. Ex. 1, at 5-6 (doc. 32-1); Baumgart Decl. Ex. 2, at 5-6 (doc. 32-2); Baumgart Decl. Ex. 3, at 6 (doc. 32-3); Baumgart Decl. Ex. 4, at 5-6 (doc. 32-4); Baumgart Decl. Ex. 5, at 7-8 (doc. 32-5); Baumgart Decl. Ex. 6, at 7-8 (doc. 32-6). And different theories of discrimination under Title VII are not interchangeable for administrative exhaustion purposes. SeeHamil v. Acts Ret.-Life Cmties., Inc., 2023 WL 6204571, *10 (S.D. Ala. Aug. 31), adopted by 2023 WL 6205429 (S.D. Ala. Sept. 21, 2023) (plaintiffs failed to exhaust their administrative remedies in regard to claims under Title VII for “disparate treatment, religiously hostile work environment, and harassment on religious grounds” where their “EEOC charges center around their request for an exemption to the vaccination mandate, the Defendants' failure to accommodate their requests and the resulting termination of their employment”); see also Sturgill v. Am. Red Cross, 2023 WL 8701293, *11 (E.D. Mich. Dec. 15, 2023) (merely pleading failure to accommodate claim in vaccine-related religious discrimination case does not “open the door” to other “entirely new theories”); Belciu, 2024 WL 3293896 at *5 (limiting court review to “Mrs. Belciu's allegations that Defendant discriminated against Mrs. Belciu by denying her request for a religious accommodation and terminating her employment, because Mrs. Belciu included these allegations in her EEOC charge”).
The same appears to be true for the Proposed Plaintiffs who actually elected to file charges with the EEOC, BOLI, and/or Washington State Human Rights Commission. Baumgart Decl. ¶ 7 (doc. 32). In any event, plaintiffs' counsel does not address exhaustion or the sufficiency of pleadings in regard to these new legal theories. See generally Pls.' Mot. Am. (doc. 22); Pls.' Reply to Mot. Am. (doc. 34); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted).
Thus, plaintiffs are precluded from asserting federal claims other than for failure to accommodate. Regardless, these new theories would not survive a Rule 12(b)(6) motion. Therefore, for the reasons discussed below, plaintiffs' motion is denied as to their claims for disparate impact/treatment, retaliation, and pattern or practice discrimination.
A. Disparate Treatment/Disparate Impact
As Legacy observes, plaintiffs' “‘wrongful termination' claim appears to be a catch-all term for disparate impact and disparate treatment, as plaintiffs state that their terminations were unlawful ‘on the basis of both disparate treatment and disparate impact.'” Def.'s Resp. to Mot. Am. 5 n.3 (doc. 31) (quoting Proposed FAC ¶¶ 209, 215, 218. (doc. 22-1)); see also Brown v. N.W. Permanente, P.C., 2023 WL 6147178, *6 (D. Or. Sept. 20, 2023) (“[t]his Court has repeatedly held that a wrongful discharge claim based on discrimination is preempted by adequate statutory remedies under ORS § 659A.030 and ORS § 659A.885”) (collecting cases).
“To plead a prima facie case of [Title VII] disparate impact, a plaintiff must (1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.” Bolden-Hardge, 63 F.4th at 1227 (citation and internal quotations omitted).
Similarly, to state a prima facie case of Title VII disparate treatment, a plaintiff must demonstrate: “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Peterson, 358 F.3d at 603.
Initially, it is questionable whether a claim of disparate impact can proceed where, as here, the challenged employment practice was the result of a state mandate arising out of extraordinary circumstances. Regardless, plaintiffs do not sufficiently identify a protected class, let alone plead that similarly situated individuals were treated more favorably. The FAC alleges Legacy “violated Title VII's anti-discrimination prohibition on the basis of both disparate treatment and disparate impact” by “identifying the Plaintiffs and other similarly situated employees by their initial requests for religious accommodation, and terminating them.” Proposed FAC ¶¶ 209, 215, 218 (doc. 22-1); see also id. (identifying the protected class as “employee[s] with sincere religious objection” to the vaccine mandate). But the fact that plaintiffs all “share a religious belief against vaccinations” is inadequate in this context. SeeCox v. Nw. Reg'l Educ. Serv. Dist., 2024 WL 777598, *13 (D. Or. Feb. 23, 2024) (allowing disparate impact claims premised on a particular religious belief would give “limitless relief” because “any policy impacting a plaintiff's specific religious belief would generally impact 100% of the members of a class defined by that belief, which would virtually always amount to a disproportionate impact as compared to those falling outside the class”) (citation and internal quotations omitted).
And, to the extent plaintiffs assert a “protected class on the basis of their devout and sincerely held religious beliefs in the tenants of Christianity,” it is clear from the well-plead allegations that there is a wide range of belief subsets within that religion. Proposed FAC ¶ 205 (doc. 22-1); see also Karthauser v. Columbia 9-1-1 Commc'ns Dist., 647 F.Supp.3d 992, 1008 (D. Or. 2022) (“[e]mployees are similarly situated if they have similar jobs and display similar conduct”) (citation and internal quotations omitted); Bolden-Hardge, 63 F.4th at 1228 (to meet the first prima facie element, the plaintiff must plausibly allege that other members of the same religion share the same underlying belief).
Even assuming plaintiffs adequately plead the first element for both disparate treatment and disparate impact claims, the FAC does not contain any allegations surrounding other unvaccinated employees in the same positions as plaintiffs that were permitted to continue working onsite or otherwise remained employed by Legacy despite their noncompliance with the COVID-19 vaccine requirement. Cf. Thompson v. Asante Health Sys., 2023 WL 7348812, *7 (D. Or. Sept. 21, 2023) (employees seeking medical exceptions to the vaccine mandate were not similarly situated to the plaintiffs, each of whom sought religious exceptions to the vaccine mandate); see also Gage v. Mayo Clinic, 2023 WL 8715519, *7, __ F.Supp.2d __ (D. Ariz. Dec. 18, 2023) (dismissing the plaintiffs' disparate treatment claims under analogous circumstances). Significantly, the FAC indicates that Legacy's COVID-19 vaccine requirement applied to all employees, consistent with the guidance of then-Governor Brown and the Oregon Health Authority.
B. Retaliation
To establish a Title VII retaliation claim, the plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action, and (3) the two are causally linked. Karthauser, 647 F.Supp.3d at 1012. “Protected activity” includes “the filing of a charge, filing of a complaint, or providing testimony on an employer's alleged unlawful practices”; “reports of improper workplace behavior”; and any “other activity intended to oppose an employer's discriminatory practices.” Id. (citations omitted).
Plaintiffs' retaliation claims fail at the first step, as they do not plead any facts suggesting they engaged in a protected activity. The FAC merely concludes that Legacy “violated retaliation provisions of Title VII by segregating and terminating the Plaintiffs and other similarly situated individuals who invoked Title VII's protections in their initial requests for religious exemptions, and then terminating them for that invocation of their rights under Title VII.” Proposed FAC ¶¶ 209, 215, 218 (doc. 22-1). Plaintiffs therefore do not allege any well-plead facts demonstrating that they ever reported or opposed any discriminatory practice.
And plaintiffs have not cited to, and the Court is not aware of, any authority suggesting that simply applying for an exemption to an employer requirement based on a protected status constitutes a protected activity. See Equal Emp. Opportunity Comm'n v. N. Mem'l Health Care, 908 F.3d 1098, 1102 (8th Cir. 2018) (the plaintiff “failed to establish a prima facie case of opposition-clause unlawful retaliation because merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation”) (citation and internal quotations omitted); see also Jamal v. Wilshire Mgmt. Leasing Corp., 320 F.Supp.2d 1060, 1078-79 (D. Or. 2004) (finding no protected activity where “illegal discrimination was [n]ever mentioned” during the plaintiff's conversations with the chief executive officer and human resources).
Although the Court acknowledges there is some authority reflecting that “accommodation requests are a protected activity under Title VII,” plaintiffs do not rely on this line of cases or provide any argument specific to the COVID-19 vaccine mandate. See, e.g., Enriquez v. Gemini Motor Transp. LP, 2021 WL 5908208, *7 (D. Ariz. Dec. 14, 2021) (collecting cases). In the absence of such briefing, the Court declines to extend Title VII's anti-retaliation protections to every individual who sought an exemption from their employer's state-mandated vaccine requirement. See Gallagher v. Haw. Symphony Orchestra, 2024 WL 1331799, *15 (D. Haw. Mar. 27, 2024) (declining to “sua sponte” address “the proposition that simply requesting an exemption from the vaccination requirement can constitute ‘opposition' for purposes of the ‘protected activity' element” but noting that, if the plaintiff's retaliation claim “is based solely on . . . requesting a religious-based exemption as provided in the CBA's COVID-19 Protocols, then it is unclear how such a request would be ‘opposing' an unlawful practice”).
Finally, the FAC does not adequately plead causation. Legacy's COVID-19 vaccine policy was established (including the consequences for failing to comply with the policy) before plaintiffs submitted their exemptions. In similar contexts, courts have held that the plaintiff cannot meet the third element because “employees were subject to termination or unpaid leave for violating the policy irrespective of whether they submitted a [religious exemption].” Id. at *15-16 (collecting cases).
C. Pattern or Practice
The Attorney General is statutorily authorized to bring a civil action where there is reasonable cause to believe that “any person or group of persons . . . engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII].” 42 U.S.C. § 2000e-6. Courts have interpreted this Title VII provision to foreclose the use of the pattern-or-practice method of proof by private plaintiffs. SeeInt'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977) (“[t]he plaintiff in a pattern-or-practice action is the Government”); see also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (“[a]ll interpret the Supreme Court's discussion of the pattern-or-practice method of proof as being limited to class actions or suits by the government” such that “the pattern-or-practice method of proving discrimination is not available to individual plaintiffs”); Mansourian v. Bd. of Regents of Univ. of Cal. at Davis, 2007 WL 3046034, *7-8 (E.D. Cal. Oct. 18, 2007) (“a pattern or practice method of proof . . . is not available to individual plaintiffs”), rev'd in part on other grounds, 594 F.3d 1095 (9th Cir. 2010).
Critically, plaintiffs here “have offered no reason to relieve [them] of meeting the burden of proof in an individual Title VII [religious discrimination] case.” Herrera v. Serv. Employees Int'l Union Local 87, 2013 WL 12324535, *4-5 (N.D. Cal. Sept. 13, 2013) (citation and internal quotations omitted); see also Buchanan v. Tata Consultancy Servs., Ltd., 2018 WL 3537083, *4-6 (N.D. Cal. July 23, 2018) (granting the defendant's motion “to preclude Buchanan from using the pattern and practice method of proof in support of his private claim,” noting that, although “[t]he Ninth Circuit has not yet explicitly determined whether an individual private plaintiff may bring a claim for discrimination using the Teamsters framework,” the “majority of the circuits that have considered the issue have held that the pattern and practice method of proof is not available to private plaintiffs”). Indeed, to allow individual plaintiffs to proceed on a pattern or practice theory would circumvent the requirement that they personally prove a prima facie case for discrimination.
Legacy asserts the FAC fails because plaintiffs “challenge ‘discrete acts' . . . not ‘widespread' or ‘routine' discriminatory conduct.” Def.'s Resp. to Mot. Am. 20 (doc. 31) (quoting Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003)). Legacy is correct that Cherosky stated: “pattern-or-practice claims cannot be based on ‘sporadic discriminatory acts' but rather must be based on discriminatory conduct that is widespread throughout a company or that is a routine and regular part of the workplace.” 330 F.3d at 1247 (citing Teamsters, 431 U.S. at 336). But Cherosky addressed the continuing violations theory and, accordingly, pertained to an issue not currently before this Court. Cherosky is nonetheless somewhat instructive to the extent it clarified that employee claims that stem “from the individualized decisions that resulted from implementation of a policy originating from OSHA” are not appropriately characterized “as a pattern or practice of discrimination.” Id.
RECOMMENDATION
For the reasons stated herein, plaintiffs' Motion to File FAC (doc. 22) should be denied. Plaintiffs' request for oral argument is denied as unnecessary. Plaintiffs shall have one final opportunity to seek amendment to clarify the facts and legal theories underlying their claims. Any motion to amend the complaint must be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.