Opinion
3:23-cv-00931-JR
10-03-2024
ELIZABETH COATES, an individual, KELLY HICKMAN, an individual, ELAINA SIGAFOOSE, an individual, DARLENE ANDERSON, an individual, and STEPHANIE BRENDEN, an individual, Plaintiffs, v. LEGACY HEALTH, a corporation, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Defendant Legacy Health (“Legacy”) moves to partially dismiss plaintiffs Elizabeth Coates, Kelly Hickman, Elaina Sigafoose, Darlene Anderson, and Stephanie Brenden's first amended complaint (“FAC”) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Legacy's motion should be granted.
BACKGROUND
Legacy, a non-profit organization located in Portland, Oregon, employed plaintiffs at various healthcare facilities. This case centers on Legacy's denial of Hickman, Sigafoose, and Brenden's religious exception requests surrounding the COVID-19 vaccine.
In August 2021, at the height of the pandemic, then-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); see also Johnson v. Brown, 614 F.Supp.3d 776, 782 (D. Or. 2022) (“[t]he decision to require vaccination among critical populations, such as healthcare workers and providers and education workers and volunteers, is a rational way to further the State's interest in protecting everyone's health and safety during the COVID-19 pandemic”). 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. FAC ¶ 5 (doc. 27). Any employee seeking a religious exception had to fill out and submit a form provided by Legacy. Id.; see generally Janzen Decl. (doc. 12).
I. Plaintiff Hickman
Hickman “was employed by Legacy Health as a Talent Management Program Specialist, for a total of eighteen years.” FAC ¶ 8 (doc. 27). Since October 2015, “Hickman worked fully remotely from her home.” Id.
On an unspecified date, Hickman wrote a letter to Legacy seeking a religious exemption:
While my Christian faith does not strictly prohibit me directly from receiving vaccinations, my church and my life long beliefs are deeply rooted in God being my Creator, Savior, and Protector, and I feel this emergency use vaccination
violates my conviction that my body has been given to me by God and He has given it all the tools it needs to protect itself as I rely on my own natural immunity.
I have recovered from COVID in January of this year . . . My body that my God gave me is all I need to protect me[.]
There may have been a time I would have listened to doctors with sound data and expertise. This time we are living in is full of lies and wickedness. Every piece of data that is released reeks of politics, there is no one I trust in the media, or governing bodies, there are always two sides to the data with no way to determine which is correct. For this reason, I must lean completely on my faith in Jesus Christ and no one else.
My faith holds me to these convictions that my body is my temple and I respect what God has given me[.]Id. at ¶ 9; Janzen Decl. Ex. 4 (doc. 12-4).
“Hickman's position allowed her to listen to Legacy leadership meetings about the pandemic and COVID vaccine mandate.” FAC ¶ 10 (doc. 27). “She was appalled at the lack of compassion, understanding, and inclusion of those who objected to receiving the vaccine due to their religious beliefs.” Id. “This fostered tension in the workplace, where bullying, segregation, and discrimination were allowed by the management.” Id.
II. Plaintiff Sigafoose
Since 2020, “Sigafoose was employed at Meridian Park Medical Center in Tualatin, Oregon, as a Registered Nurse [who] worked directly with patients, including working on a designated COVID unit.” Id. at ¶ 12.
On August 30, 2021, Sigafoose wrote a letter to Legacy requesting a religious exemption, specifying in relevant part:
From the age of five years old, I chose to accept Jesus Christ as my Lord and Savior [and] memorized my first Bible verse[.]
My body is temple of the Holy Spirit who lives inside me. I honor God with my body by what I put in my body. I try to limit my exposure to chemicals and manmade substances, I eat organic foods, I utilize the Environmental Working Group
website [to limit] toxins in my body . . . I listen to the Lord when he speaks to me.
I follow the Lord in how he leads me, as I have done since the age of five[.]
I have a right to my own body and ultimately to God, for he has made me[.]Id. at ¶ 13; Janzen Decl. Ex. 5 (doc. 12-5).
“Sigafoose was also subjected to a hostile work environment, where she was humiliated and hurt by patients and co-workers calling the unvaccinated ‘stupid' and blaming them for the pandemic.” FAC ¶ 13 (doc. 27).
III. Plaintiff Brenden
“Brenden has been employed by Legacy Health for seven years but has worked for Silverton Hospital (taken over by Legacy) for a total of seventeen years . . . as a Registered Nurse in the Emergency department with direct patient care.” Id. at ¶ 19.
On August 29, 2021, Brenden requested a religious exemption as follows: “God calls me to live according to His word and honor Him in all I do. The Holy Spirit lives with me, guiding me and giving me a spirit of discernment and wisdom.” Id. at ¶ 21; Janzen Decl. Ex. 2 (doc. 12-2)
Brenden was then asked “to fill out a second form created by Legacy with more detail.” FAC ¶ 22 (doc. 27). Brenden provided the following information:
I am a baptized Christian seeking an exemption from an immunization requirement. This letter explains how the Christian teaching may lead individuals to decline certain vaccines. The Christian Church teaches that a person may be required to refuse a medical intervention, including a vaccination, if his or her informed conscience comes to this sure judgment. While the Church does not prohibit the use of any vaccine, and generally encourages the use of safe and effective vaccines as a way of safeguarding personal and public health, the following authoritative Church teaching demonstrates the principled religious basis on which a Christian may determine that he or she ought to refuge [sic] certain vaccines.
At the core of the Church's teaching are the first and last points listed above: vaccination is not a universal obligation and a person must obey the judgment of his or her own informed and certain conscience. In fact, the Church instructs that
following one's conscience is following Christ himself: In all he says and does, man is obliged to follow faithfully what he knows to be just and right. It is by the judgment of his conscience that man perceives and recognizes the prescriptions of the divine law: “Conscience is a law of the mind; yet [Christians] would not grant that it is nothing more; . . . [Conscience] is a messenger of him, who, both in nature and in grace, speaks to us behind a veil, and teaches and rules us by his representatives.” Therefore, if a Christian comes to an informed and sure judgment in conscience that he or she should not receive a vaccine, then the Church requires that the person follow this certain judgment of conscience and refuse the vaccine. “Man has the right to act in conscience and in freedom so as personally to make moral decisions. He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.”Id. (alterations in original).
On September 30, 2021, Brenden “reluctantly began the vaccination series . . . believing she would be allowed to continue to work.” Id. at ¶ 28. “Instead, Legacy placed her on a one month unpaid administrative leave and forced [her] to use her accumulated vacation and sick leave hours.” Id. “[E]arlier in the year [Legacy allowed] employees . . . to continue to work as they became fully vaccinated. Id.
IV. Legacy's Denials and Terminations
At unspecified times towards the end of 2021, Legacy denied plaintiffs' religious exception requests. Legacy “has not explained why it denied each of the Plaintiffs' requested religious exceptions [or] why, in its view, after nearly two years of being able to work without incident during the pandemic, that Plaintiffs suddenly created an unacceptable health and safety risk necessitating them being placed on unpaid administrative leave, followed by termination.” Id. at ¶¶ 31-32.
V. Proceedings Before This Court
On June 26, 2023, plaintiffs initiated this lawsuit asserting religious discrimination/failure to accommodate claims against Legacy under Title VII and Or. Rev. Stat. § 659A.030(1)(a). On November 6, 2023, Legacy moved to dismiss plaintiffs' complaint in its entirety due to the dearth of specific factual allegations. In response, plaintiffs' counsel produced the religious exception request for each employee. Legacy, in turn, withdrew its challenge as to Coates and Anderson'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 19, 2024, the Court granted Legacy's motion as to Hickman, Sigafoose, and Brenden's claims. See generally Coates v. Legacy Health, 2024 WL 1181827 (D. Or. Jan. 8), adopted by 2024 WL 1177124 (D. Or. Mar. 19, 2024).
Plaintiffs subsequently lodged the FAC. On May 29, 2024, Legacy filed the present motion to dismiss. Briefing was completed in regard to that motion on June 26, 2024.
STANDARD OF REVIEW
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the 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). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
The FAC includes three key amendments. First, the FAC explicitly incorporates the exemption requests of Hickman, Sigafoose, and Brenden into the pleadings. Compare generally Compl. (doc. 1) and Janzen Decl. (doc. 12), with FAC (doc. 27).
Second, the FAC provides the following additional allegations in relation to Brenden: (1) she “also objects to the vaccines because they were developed or manufactured using tissue from aborted fetuses [which] is in direct conflict with [her] ardent pro-life religious beliefs”; (2) “Legacy did not ask [her] or any of the other Plaintiffs any follow-up questions to obtain any further details regarding any other reasons that [they] may have had to refuse the COVID-19 vaccine or to clarify any ambiguities regarding why their religious beliefs conflicted with them receiving the vaccine”; and (3) “Legacy began sending constant email reminders to people that had requested religious exemptions from the vaccine mandate. [Brenden] received five emails and two personal letters from [Human Resources] reminding her to get vaccinated [which she believed to be] excessive.” FAC ¶¶ 23-25 (doc. 27).
Third, the FAC asserts a number of new theories underlying the broader state/federal religious discrimination claims - namely, “wrongful termination,” “disparate treatment and disparate impact,” “wrongful reduction in pay,” “retaliation,” “failure to provide reasonable accommodation,” “company-wide, or systemic, discriminatory pattern or practice,” and “hostile work environment.” Id. at ¶¶ 39, 46.
According to Legacy, the “FAC fares no better than their initial Complaint: except for the failure to accommodate claims asserted by Plaintiffs Coates and Anderson, Plaintiffs' claims are neither supported by pleaded facts nor cognizable under applicable law, and should be dismissed with prejudice.” Def's Mot. Dismiss 2-3 (doc. 29). In particular, Legacy argues that “Hickman and Sigafoose's allegations in the FAC differ from those in the Complaint only in that they have included some portions of the religious exception requests they submitted to Legacy, rather than merely incorporating the exception requests by reference as they did in the Complaint.” Id. at 6. As to Brenden, Legacy notes she that “alleges for the first time in the FAC that she objects to the COVID19 vaccine based on its connection to aborted fetal tissue,” but maintains she “did not inform Legacy of her bona fide religious conflict.” Id. at 6-8. Finally, defendant contends the newly asserted legal theories/claims are either not viable or fail at the pleadings level.
For the first time in its reply brief, Legacy also argues that “various Plaintiffs failed to exhaust various federal claims, those claims do not relate back to the original Complaint, and Plaintiffs failed to file the New Claims within the application state of limitations.” Def.'s Reply to Mot. Dismiss 2 (doc. 32). However, as Legacy recognizes, “[t]he district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). And the Court, in its discretion, declines to do so here. Legacy devotes more than seven pages of briefing to these new issues. Although Legacy stipulated to “allowing Plaintiffs to file a sur-reply,” such that [t]here is no prejudice,” the fact remains these arguments can and should have been made in the initial motion. In any event, some of the deficiencies identified by Legacy may be resolved through revisions to the pleadings or plaintiffs' election to abandon certain claims.
I. Hickman, Brenden, and Sigafoose'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.” FAC ¶¶ 39, 46 (doc. 27). While plaintiffs are correct that Title VII protects “discriminat[ion] with respect to . . . compensation” and that “[a] forced reduction in compensation based on an employee's religious beliefs can be [actionable],” here the FAC makes clear that the ultimate adverse employment action was termination - i.e., plaintiffs were put on unpaid administrative leave to allow them to comply with the COVID-19 vaccination requirement. Pls.' Resp. to Mot. Dismiss 14 (doc. 31). And, contrary to plaintiffs' assertion, these leaves did not persist indefinitely - while the FAC lacks specifics, Brenden, for instance, was placed on leave for a discrete period - i.e., one month - because she elected not to start the vaccination series until September 30, 2021. FAC ¶ 28 (doc. 27). 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 U.S. Equal Employment Opportunity Commission (“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. SanDiego 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, Hickman, Brenden, and Sigafoose's “broad invocations of faith and/or research-based scientific/medical judgments as to what is harmful are not sufficient to state a claim in this context.” Coates, 2024 WL 1181827 at *5-6. Plaintiffs' counsel ignores this prior ruling and the fact that the Court considered “plaintiffs' actual communications with Legacy.” Id. In other words, as Legacy correctly observes, “plaintiffs rely on the same factual allegations that the Court already determined were deficient” Def.' s Reply to Mot. Dismiss 2 (doc. 32).
In any event, Hickman and Brenden acknowledge that their religions do not preclude them from receiving vaccinations. Likewise, Sigafoose and Hickman's allegations and communications evince that their decisions to seek exemptions were based on personal preferences and/or scientific judgments. And, in Brenden's case, the FAC does not allege that she actually notified Legacy of her anti-abortion stance.
Plaintiffs' contention that Legacy should be equitably estopped from moving against “Brenden's prolife beliefs” because it failed “to conduct a discussion with an employee to reasonably inquire into the sincerity or religious nature of [those] beliefs” is unavailing for three reasons. Pls.' Resp. to Mot. Dismiss 10 n.1 (doc. 31). First, courts need not consider substantive arguments raised only in a footnote. See, e.g., Morales v. Woodford, 388 F.3d 1159, 1168 n.14 (9th Cir. 2004). Second, it is incumbent upon the party seeking the religious exemption to inform their employer of their bona fide religious beliefs - and here there is no indication from either the FAC or Brenden's exemption paperwork that she communicated her pro-life stance to Legacy. Third, this Court has repeatedly rejected plaintiffs' equitable estoppel argument. See, e.g., Small v. Or. Health & Sci. Univ., 2024 WL 2176437, *5 (D. Or. Apr. 12), adopted in relevant part by 2024 WL 2153608 (D. Or. May 14, 2024); Ruscitti v. Legacy Health, 2024 WL 2092949, *3 (D. Or. Mar. 18), adopted by 2024 WL 2078399 (D. Or. May 8, 2024).
In sum, 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. See Ashcroft, 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not adequate). Plaintiffs here simply neglect to provide any details about their how their bona fide religious beliefs conflict with Legacy's vaccination requirement. Yet 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”).
Stated differently, while plaintiffs are correct that 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. Legacy's motion is granted as to Sigafoose, Brenden, and Hickman's religious discrimination/failure to accommodate claims.
II. Plaintiffs' Disparate Treatment/Disparate Impact Claims
Plaintiffs' response brief suggests they are not alleging stand-alone common law wrongful termination and instead pursue this theory solely in conjunction with their disparate treatment/impact claims. See, e.g., Pls.' Resp. to Mot. Dismiss 12-14 (doc. 31); 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.” FAC ¶¶ 39, 46 (doc. 27); 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. See Cox 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. FAC ¶ 35 (doc. 27); 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). For instance, some plaintiffs in this case sought religious exemptions based on the use of fetal cells in the vaccine's development and their anti-abortion stance, whereas others indicated that their faith did not preclude vaccination and instead relied on prayer, their “natural immunity,” “informed and sure judgment in conscience,” or a desire to “limit . . . exposure to chemicals and man-made substances.” FAC ¶¶ 9, 13, 22 (doc. 27); see also 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). Indeed, 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. Legacy's motion is granted as to plaintiffs' disparate impact/treatment claims.
III. Plaintiffs' Retaliation Claims
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 fails 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.” FAC ¶¶ 39, 46 (doc. 27). Thus, plaintiffs 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,” plaintiff does 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 analogous 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].” Gallagher, 2024 WL 1331799 at *15-16 (collecting cases). Legacy's motion is granted as to plaintiffs' retaliation claims.
IV. Plaintiffs' Pattern or Practice Claims
The Attorney General is statutorily authorized to bring a civil action where there is reasonable cause to believe that “any person or group of persons . . . engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII].” 42 U.S.C. § 2000e-6. Courts have interpreted this Title VII provision to foreclose the use of the pattern-or-practice method of proof by private plaintiffs. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977) (“[t]he plaintiff in a pattern-or-practice action is the Government”); see also Bacon v.Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (“[a]ll interpret the Supreme Court's discussion of the pattern-or-practice method of proof as being limited to class actions or suits by the government” such that “the pattern-or-practice method of proving discrimination is not available to individual plaintiffs”); Mansourian v. Bd. of Regents of Univ. of Cal. at Davis, 2007 WL 3046034, *7-8 (E.D. Cal. Oct. 18, 2007) (“a pattern or practice method of proof . . . is not available to individual plaintiffs”), rev'd in part on other grounds, 594 F.3d 1095 (9th Cir. 2010).
Plaintiffs acknowledge Teamsters but nonetheless assert they should be allowed to proceed pursuant to this theory because they “have alleged there was systemic discrimination across the healthcare sector in Oregon showing ‘a massive statewide reduction in the amount of religious workers in Oregon's healthcare industry and leading to a widespread adverse result that many religious healthcare workers could not find employment in their field within Oregon.” Pls.' Resp. to Mot. Dismiss 17 (doc. 31) (citation and internal quotations omitted).
As such, plaintiffs “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's motion is granted as to plaintiffs' pattern or practice claims.
Via its reply, Legacy asserts the FAC fails because plaintiffs “challenge ‘discrete acts' - not discriminatory conduct that is ‘widespread throughout a company' or ‘a routine and regular part of the workplace.'” Def.'s Reply to Mot. Dismiss 13-14 (doc. 32) (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 is 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.
V. Plaintiffs' Hostile Work Environment Claims
To state a hostile work environment claim, a plaintiff must show: “(1) that he was subjected to verbal or physical conduct of a [religious] nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Mills v. Peace Health, 31 F.Supp.3d 1099, 1111 (D. Or. 2014) (citing Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003)). To satisfy the third element, the conduct complained of must be both objectively and subjectively hostile or abusive. Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007) (citation and internal quotations omitted).
In making the objective determination, the court evaluates the totality of the circumstances, “including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citations and internal quotations omitted). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (citation and internal quotations omitted).
Plaintiffs claim to have been “subjected to a hostile work environment” due to negative or unkind comments towards unvaccinated people, or about the unvaccinated. See, e.g., FAC ¶¶ 10, 14, 17, 39, 46 (doc. 27). Brenden also alleges she received “excessive commincation[s]” - i.e., “five emails and two personal letters” - from Human Resources reminding her to get vaccinated after her exemption request was denied, and that Legacy neglected to engage in any follow-up inquiry to better understand plaintiffs' religious beliefs. Id. at ¶¶ 24-25.
The FAC thus alleges no connection between the comments about unvaccinated people and plaintiffs' religion. See Brown, 2023 WL 6147178 at *6 (explaining, in regard to similar hostile work environment claims, that “remain[ing] unvaccinated may be a secular choice, and unvaccinated status alone does not establish any connotation of religious affiliation. Without some connection to their religion, Plaintiffs fail to allege [the first element]”); see also Riser v. St. Charles Health Sys., Inc., 2024 WL 2864405, *6 (D. Or. June 6, 2024) (dismissing hostile work environment claims under analogous circumstances). Moreover, plaintiffs neglect to identify the comments themselves or their frequency, such that the Court cannot determine whether they qualified as severe and pervasive or mere offensive utterances, and whether they unreasonably interfered with plaintiffs' work performance. Legacy's motion is granted as to plaintiffs' hostile work environment claims.
Despite the complaint's deficiencies, the Court declines to dismiss Hickman, Sigafoose, and Brenden's claims, or plaintiffs' new legal theories, with prejudice. Plaintiffs have only had one opportunity to address these pleading deficiencies and the Court cannot conclude, at least at this stage in the proceedings, that they are incurable as a matter of law. Nevertheless, the Court is mindful of Legacy's arguments surrounding relation back and failure to exhaust administrative remedies. The Court is also mindful of the fact that plaintiffs did little to add to the original pleadings in seeking amendment. Therefore, plaintiffs shall have one final opportunity to seek amendment. Cf. Gimby v. Or. Health & Sci. Univ. Sch. of Nursing, 2024 WL 3027858, *4 (D. Or. June 14, 2024) (dismissing the plaintiff's VII claim with prejudice where “the Amended Complaint added very little of substance”).
RECOMMENDATION
For the reasons stated herein, Legacy's Motion to Dismiss (doc. 29) should be granted, such that only Coates and Anderson's failure to accommodate claims remain. The parties' requests for oral argument are denied as unnecessary. Any motion to amend the complaint must conform with this Findings and Recommendation, and 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.