Opinion
3:22-cv-01999-SB
10-23-2023
HUONG TRINH, Plaintiff, v. SHRINERS HOSPITALS FOR CHILDREN, a corporation, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge
Plaintiff Huong Trinh (“Trinh”) filed this lawsuit against her former employer, Defendant Shriners Hospitals for Children (“SHC”), alleging religious discrimination claims under Title VII of the Civil Rights Act (“Title VII”) and Oregon Revised Statutes (“ORS”) § 659A.030. SHC moves, pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), to dismiss Trinh's religious discrimination claims, with prejudice, for failure to state a claim upon which relief can be granted.
The Court has jurisdiction over Trinh's Title VII claim under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over Trinh's state law claim under 28 U.S.C. § 1367, and not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). For the reasons explained below, the Court recommends that the district judge grant in part and deny in part SHC's motion.
In evaluating a Rule 12(b)(6) motion, the Court must (and does) “accept the complaint's well-pleaded factual allegations as true, and construe all inferences in the plaintiff's favor[.]” Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016) (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) and Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)).
Trinh began working for SHC as an in-patient registered nurse in June 2018. (Am. Compl. ¶ 5, ECF No. 4.) Trinh worked at SHC's hospital in Portland, Oregon, and “directly with pediatric patients hospitalized with a variety of illnesses, injuries, and other medical conditions.” (Id.)
On September 16, 2021, SHC announced a policy requiring employees to be vaccinated against COVID-19, and cited Oregon Administrative Rule (“OAR”) 333-019-1010 in support of its policy. (Id. ¶ 11; see also id. ¶ 10, reflecting that on December 18, 2020, SHC informed its staff members about its future plan to “implement[] and enforc[e] a vaccine mandate in the workplace”). SHC also announced that staff members could “request an exemption on the basis of their sincerely held religious beliefs,” and attached the paperwork necessary to do so. (Id. ¶ 11.)
OAR 333-019-1010, also known as the “Healthcare Order,” codified one of the Oregon Health Authority's (“OHA”) then-applicable vaccination rules, and followed the Food and Drug Administration's approval of the COVID-19 vaccine. See, e.g., Brown v. Nw. Permanente, P.C., No. 3:22-cv-00986-SI, 2023 WL 6147178, at *3-4 (D. Or. Sept. 20, 2023) (reviewing a motion to dismiss and describing the OHA's rules and Healthcare Order, which the OHA adopted on August 25, 2021, modified on September 1, 2021, suspended in mid-2023, and repealed effective November 6, 2023).
The Healthcare Order addressed the state's unvaccinated population, COVID-19 variants, an increase in breakthrough COVID-19 cases in the state's vaccinated population, and the state's need to help control COVID-19 outbreaks and protect patients and the state's healthcare workforce:
Healthcare providers and healthcare staff have contact with multiple patients over the course of a typical day and week, including providers that provide care for people in their homes. Individuals cared for in these settings are more likely than the general public to have conditions that put them at risk for complications due to COVID-19. COVID-19 variants are running through the state's unvaccinated population and causing an increase in breakthrough cases for those who are fully vaccinated. This rule is necessary to help control COVID-19, protect patients, and to protect the state's healthcare workforce.Brown, 2023 WL 6147178, at *2 (quoting OR. ADMIN. R. 333-019-1010(1)).
Given “these concerns, the Healthcare Order provided that after October 18, 2021, ‘[h]ealth care providers and . . . staff [could] not work, learn, study, assist, observe, or volunteer in a healthcare setting unless they [were] fully vaccinated or have provided documentation of a medical or religious exception.'” Id. (quoting OR. ADMIN. R. 333-019-1010(3)(a)). In addition, employers “who grant[ed] a medical or religious exception to the vaccination requirement [were required to] take reasonable steps to ensure that unvaccinated healthcare providers and . . . staff [were] protected from contracting and spreading COVID-19.” Id. (quoting OR. ADMIN. R. 333019-1010(4)).
On October 1, 2021, after receiving notice of SHC's policy requiring employees to be vaccinated against COVID-19, Trinh filed the paperwork necessary to request a religious exemption. (Am. Compl. ¶ 11.) Trinh, who is “devoutly” and “deeply” religious and “follows tenants (sic) of both the Christian faith and Buddhism,” had “serious objections to taking the vaccine because it would constitute violating her bodily integrity and tainting the purity of her body.” (Id. ¶¶ 6, 10.)
On October 18, 2021, SHC sent its current staff members a “list of [the] staff members terminated due to their vaccine status.” (Id. ¶ 13.) Trinh, who had been “placed on unpaid administrative leave” and believed that she would receive a religious exemption and her “employment status would be communicated directly to her,” was not pleased with the “very public notice of her private health information being disseminated to her colleagues[.]” (Id. ¶¶ 11, 13, 16.) Trinh “attempted to appeal her termination internally but gained no traction.” (Id. ¶ 14.)
After receiving a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) on October 8, 2022 (id. ¶ 1), Trinh filed this lawsuit against SHC on December 29, 2022, alleging claims of religious discrimination. SHC's motion to dismiss followed.
LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
DISCUSSION
SHC argues that Trinh fails to state plausible religious discrimination claims under Title VII and ORS § 695A.030 and amendment would be futile, and therefore moves to dismiss Trinh's amended complaint with prejudice. (Def.'s Mot. Dismiss (“Def.'s Mot.”) at 2, ECF No. 10.)
I. PRELIMINARY MATTER
Before addressing SHC's motion to dismiss, the Court addresses SHC's argument that pursuant to the incorporation-by-reference doctrine, the Court may consider the contents of certain email correspondence that Trinh and SHC's director of human resources (“HR director”) exchanged as part of a pre-termination interactive process. (See id. at 5-6, relying on the incorporation-by-reference doctrine and arguing that at this stage, the Court may consider the contents of the email exchange).
A. Applicable Law
The general rule is that “district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6)[.]” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)). The incorporation-by-reference doctrine is one of “two exceptions to this [general] rule[.]” Id. In Khoja, the Ninth Circuit “clarif[ied] when it is proper [for a court] to . . . incorporate by reference documents into a [plaintiff's] complaint, and when it is not.” Id. at 999.
The incorporation-by-reference doctrine is a judicial creation that “treats certain documents as though they are part of the complaint itself” and “prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken-or doom-their claims.” Id. at 1002 (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006)). The Ninth Circuit has previously recognized that “a defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.'” Id. (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). With respect to the extensiveness of the complaint's references, the Ninth Circuit has “held that ‘the mere mention of the existence of a document is insufficient to incorporate the contents of a document' under Ritchie.” Id. (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)).
As the Ninth Circuit observed in Khoja, “[a] more difficult question is whether a document can ever ‘form[] the basis of the plaintiff's claim' if the complaint does not mention the document at all.” Id. (quoting Ritchie, 342 F.3d at 907). In some “rare instances,” a district court's assessment of a claim's sufficiency “requires that the document at issue be reviewed, even at the pleading stage.” Id. (citing Knievel v. ESPN, 393 F.3d 1068, 1070-76 (9th Cir. 2005)).
Notably, “[h]owever, if the document merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily form the basis of the complaint.” Id. As the Ninth Circuit has explained, a defendant may not use the incorporation-by-reference doctrine to insert their version of events into the complaint or dispute the factual allegations:
[D]efendants [may not] use the doctrine to insert their own version of events into the complaint to defeat otherwise cognizable claims.... Submitting documents not mentioned in the complaint to create a defense is nothing more than another way of disputing the factual allegations in the complaint, but with a perverse added benefit: unless the district court converts the defendant's motion to dismiss into a motion for summary judgment, the plaintiff receives no opportunity to
respond to the defendant's new version of the facts. Without that opportunity to respond, the defendant's newly-expanded version of the complaint-accepted as true at the pleading stage-can easily topple otherwise cognizable claims. Although the incorporation-by-reference doctrine is designed to prevent artful pleading by plaintiffs, the doctrine is not a tool for defendants to short-circuit the resolution of a well-pleaded claim.
For this same reason, what inferences a court may draw from an incorporated document should also be approached with caution. [The Ninth Circuit has] stated that, unlike judicial notice, a court may assume an incorporated document's contents are true for purposes of a motion to dismiss under Rule 12(b)(6).... While this is generally true, it is improper to assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint. This admonition is, of course, consistent with the prohibition against resolving factual disputes at the pleading stage....Id. at 1002-03 (simplified).
B. Analysis
The Court finds that SHC's reliance on the incorporation-by-reference doctrine is improper here.
SHC argues that the Court may consider the pre-termination emails that Trinh and SHC's HR director exchanged between October 1 and October 7, 2021, pursuant to the incorporation-by-reference doctrine. (Def.'s Mot. at 2-3, 5-6; Decl. Sarah Ames Benedict Supp. Def.'s Mot. Dismiss (“Benedict Decl.”) Ex. 1 at 1-6, ECF No. 11.) SHC states that these emails are an “excerpt” from Trinh's EEOC file, which Trinh references in her amended complaint. (See Benedict Decl. ¶ 2, attaching the EEOC “file referenced in” Trinh's amended complaint, and citing Am. Compl. ¶ 1, which alleges only that Trinh “exhausted her administrative remedies through the [EEOC] and received a right-to-sue letter”). SHC also argues that Trinh's amended complaint “artfully omits” that she not only requested a vaccine exemption but also objected to wearing an employer-provided N95 mask and submitting to paid-for, weekly COVID-19 testing and made statements inconsistent with sincerely held religious beliefs-all of which is relevant to whether Trinh can plead a prima facie case of religious discrimination. (See Def.'s Mot. at 2-3, 6, 9-19.)
Trinh disputes SHC's claim that the Court may consider the pre-termination emails under the incorporation-by-reference doctrine. (Pl.'s Resp. Def.'s Mot. Dismiss (“Pl.'s Resp.”) at 2-3, 5, 7-8, ECF No. 13.) Trinh argues that SHC's introduction of these emails at this stage is “improper[]” and that SHC's motion to dismiss is “in essence a motion for summary judgment.” (Id. at 2, 5.)
The Court disagrees with SHC's assertion that the Court may consider the pretermination emails under the incorporation-by-reference doctrine. Trinh refers in her amended complaint to her receipt of the EEOC's right-to-sue letter and exhaustion of administrative remedies but does not mention or explicitly refer to an EEOC file or pre-termination emails. (See Am. Compl. ¶¶ 1, 22-23, 27-28, alleging that Trinh exhausted her administrative remedies and received the EEOC's right-to-sue letter, and including legal conclusions and conclusory allegations about whether SHC made a good faith effort reasonably to accommodate Trinh's sincere religious objections).
SHC relies on the emails in large part because, in SHC's view, the emails demonstrate that SHC “could not have reasonably accommodated [Trinh] without suffering an undue hardship as a matter of law.” (See Def.'s Mot. at 10, 15-19, making this argument and relying on the emails). It is not clear from the record, however, whether Trinh ever abandoned any initial objections to masks and testing between October 7, 2021 (the date of the last email) and October 18, 2021 (the date on which Trinh alleges that SHC terminated her employment). (See Benedict Decl. Ex. 1 at 1, reflecting that Trinh sent the last email to SHC's HR director on October 7, 2021; Am. Compl. ¶ 17, alleging that the Court should treat October 18, 2021 as Trinh's “termination date”). That is notable because Trinh alleges in the amended complaint that it would “not have been an undue hardship [for SHC] to have allowed [her] to continue working with [personal protective equipment], regular testing, and other measures to protect against the spread of COVID-19, as was done for the nearly two years before the imposition of the COVID-19 vaccine mandate.” (Am. Compl. ¶ 22; cf. Def.'s Reply Supp. Mot. Dismiss (“Def.'s Reply”) at 3, ECF No. 16, arguing that “contrary to her pleadings,” Trinh “refused to wear an N95 mask and refused regular testing”).
The foregoing reflects that SHC's affirmative defense of undue hardship turns on disputed issues of fact, and thus its invocation of the incorporation-by-reference doctrine is misplaced here. See Khoja, 899 F.3d at 1002-03 (addressing the proper application of the incorporation-by-reference doctrine and explaining that “[s]ubmitting documents not mentioned in the complaint to create a defense is nothing more than another way of disputing the factual allegations in the complaint, but with a perverse added benefit” to the defendant). Under these circumstances, SHC should raise its affirmative defense of undue hardship in a motion for summary judgment:
[T]he Court may properly disregard Plaintiffs' conclusory assertion that Defendants could have accommodated their religious beliefs without incurring undue hardship. In addition, the absence of an undue hardship on a defendant is not an essential element of a plaintiff's claim under Title VII; it is an affirmative defense.
The Ninth Circuit has explained that ‘[o]rdinarily, affirmative defenses . . . may not be raised on a motion to dismiss except when the defense raises no disputed issues of fact.' . . . As noted, Plaintiffs allege in their Complaint that it would not have been an undue hardship to have allowed Plaintiffs to continue working. Even if the Court were to disregard that allegation as merely conclusory, Plaintiffs's Complaint does not itself establish the affirmative defense of undue hardship.
This does not mean, however, that Defendants must submit to time consuming and expensive discovery before filing a motion for summary judgment. The Court does not limit the parties to a single motion for summary
judgment; nor does the Court require a party to wait until discovery has closed, if that party believes it has a meritorious argument for summary judgment. Under the facts and allegations here, the Court will consider the merits of any argument based on ‘undue hardship' after a well-supported motion for summary judgment has been filed. Accordingly, the Court denies Defendants' motion to dismiss Plaintiff's First and Second Claims under Rule 12(b)(6).Brown, 2023 WL 6147178, at *4-5 (footnote omitted) (quoting Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1194 n.6 (9th Cir. 2018)); see also Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 1215, 1224-25 (9th Cir. 2023) (“Undue hardship is an affirmative defense [in the Title VII context] . . ., and accordingly dismissal on that ground is proper only if the defendant shows some obvious bar to securing relief on the face of the complaint or in any judicially noticeable materials.”) (simplified); Trusov v. Or. Health & Sci. Univ., No. 3:23-cv-00077-SI, 2023 WL 6147251, at *5-7 (D. Or. Sept. 20, 2023) (denying a motion to dismiss for the same reasons as Brown); Morris v. Asante Health Sys., No. 1:22-cv-01707-CL, 2023 WL 3766615, at *1 (D. Or. May 17, 2023) (“[The defendant] will of course have an opportunity to show that evidence exists disputing these allegations or that [the defendant] was unable to reasonably accommodate Plaintiff's beliefs without undue hardship. Such factual disputes and evidentiary showings are not appropriate for resolution at the pleading stage of this case.”), findings and recommendation adopted, 2023 WL 3764562, at *1 (D. Or. June 1, 2023); Rolovich v. Wash. State Univ., No. 2:22-cv-00319, 2023 WL 3733894, at *4 (E.D. Wash. May 30, 2023) (explaining that the defendant's affirmative defense of “undue hardship [was] better reserved for summary judgment”).
The district court's recent decision in MacDonald v. Oregon Health & Science University, No. 3:22-cv-01942-IM, 2023 WL 5529959, at *1-3 (D. Or. Aug. 28, 2023), likewise supports the conclusion that SHC should raise its affirmative defense of undue hardship in a motion for summary judgment. In MacDonald, the plaintiff was a registered nurse who worked in a hospital's “Mother and Baby Unit” until December 2021 and whose employer denied her request for a religious exemption to a COVID-19 vaccination requirement and terminated her employment. Id. at *1-3. In denying the defendants' motion to dismiss the plaintiff's Title VII religious discrimination claim based on an undue hardship affirmative defense, the district court explained that “the cases to which [d]efendants cite were all decided either on motions for preliminary injunctions or motions for summary judgment, allowing the courts in those cases to rely on extrinsic evidence such as declarations, expert testimony, and medical and scientific studies, in reaching their conclusion.” Id. at *5 (citing Together Emps. v. Mass. Gen. Brigham Inc., 573 F.Supp.3d 412, 435 (D. Mass. 2021), Aukamp-Corcoran v. Lancaster Gen. Hosp., No. 19-cv-05734, 2022 WL 507479, at *6-8 (E.D. Pa. Feb. 18, 2022), Brox v. Hole, 590 F.Supp.3d 359, 367, 367 n.8 (D. Mass. 2022), O'Hailpin v. Hawaiian Airlines, Inc., 583 F.Supp.3d 1294, 1309-10 (D. Haw. Feb. 2, 2022), Barrington v. United Airlines, Inc., 566 F.Supp.3d 1102, 1109 (D. Colo. 2021), and Robinson v. Children's Hosp. Bos., No. 14-cv-010263, 2016 WL 1337255, at *9-10 (D. Mass. Apr. 5, 2016)).
The district court further explained that “[u]nlike motions for preliminary injunctions or motions for summary judgment, [the district court was] limited in the materials it may consider on a motion to dismiss,” and neither exception to this general limitation (i.e., the incorporation-by-reference doctrine or judicial notice under Federal Rule of Evidence 201) applied. Id. at *6-7 (citations omitted). Consistent with these observations, the district court found that at the motion to dismiss stage, it was unable to conclude that the defendants satisfied their burden of demonstrating that accommodating the plaintiff would have created an undue hardship. Id. at *7. The district court added that the defendant “may very well be able” to do so on “a more robust record.” Id.
The district court also addressed the defendants' argument that accommodating the plaintiff would have put them out of compliance with state law, which is an undue hardship. Id.The district court noted that OAR 333-019-1010(4) provided that “a health employer may grant an employee a religious exemption from the vaccination requirement so long as the employer ‘take[s] reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.'” Id. (citation omitted). The district court explained that (1) “[i]nherent in this [OAR] requirement is at least an implicit recognition that there are steps that an employer could plausibly take, in lieu of a COVID-19 vaccine, to protect workers and staff from spreading and contracting COVID-19,” and (2) that “without extrinsic evidence that no reasonable steps were available to ensure that unvaccinated healthcare providers and healthcare staff were protected from contracting and spreading COVID-19, [the district court could not] find at [the motion to dismiss] stage that granting [the plaintiff] a religious accommodation would have automatically placed [the defendants] out of compliance with state law.” Id.; see also Johnson v. St. Charles Health Sys., Inc., No. 6:23-cv-00070-MK, 2023 WL 5155591, at *3 (D. Or. July 21, 2023) (addressing OAR 33-019-1010(4) and determining that there was “nothing in the record thus far to show that allowing [the plaintiff] to adhere to her proposed accommodations-allowing [the plaintiff] to remain unvaccinated and engaging instead in frequent testing and using additional or enhanced protective equipment-while continuing to work as a relief nurse would constitute an undue hardship”), findings and recommendation adopted, 2023 WL 5139962, at *1 (D. Or. Aug. 10, 2023); Payne v. St. Charles Health Sys., No. 6:22-cv-01998-MK, 2023 WL 4711431, at *3 (D. Or. July 6, 2023) (same), findings and recommendation adopted, 2023 WL 4711095, at *1 (D. Or. July 24, 2023); DeMeyer v. St. Charles Health Sys., Inc., No. 6:23-cv-00069-MK, 2023 WL 5614946, at *1 (D. Or. July 3, 2023) (same), findings and recommendation adopted, 2023 WL 5609102, at *1 (D. Or. Aug. 23, 2023).
Much of MacDonald's rationale applies here. To be sure, SHC relies only on extrinsic evidence that the Court may not consider under the incorporation-by-reference doctrine, and as a consequence, the Court need not consider SHC's related arguments and authorities relevant to Trinh's purported refusal to wear a mask or submit to testing (i.e., an argument seemingly in conflict with the allegations in Trinh's complaint and inappropriate for resolution on this record and at this stage).
Further, SHC relies on many of the same cases as the MacDonald defendants (see Defs.' Mot. at 11-12, 14, 16-18; Def.'s Reply at 4, citing Brox, Aukamp, Robinson, O'Hailpin, Together, and Barrington), and cases at odds with MacDonald's observations about what a court is able to conclude at the pleading stage and under comparable circumstances. See, e.g., Beuca v. Wash. State Univ., No. 2:23-cv-00069, 2023 WL 3575503, at *3 (E.D. Wash. May 19, 2023) (reflecting that the court resolved an undue hardship affirmative defense at the motion to dismiss stage and denied leave to amend, relied on Together for the proposition that “courts have determined unvaccinated healthcare workers impose an undue hardship on employers due to the increased risk of infection[,]” and found that “[n]o accommodation was possible” because the plaintiff alleged that he was “working in a hospital” which “would have increased the risk of exposure to COVID-19 to patients and other healthcare workers”), appeal filed, No. 23-35395 (9th Cir. June 8, 2023).
SHC also relies on the pre-termination emails in an attempt to bolster its argument that Trinh's objection to the vaccine mandate was “based on health and safety concerns and personal preference, not a religious belief.” (See, e.g., Def.'s Mot. at 10-11, making this argument and citing Benedict Decl. Ex. 1 in support) (bold omitted). As discussed herein, the Court may address SHC's arguments about the alleged religious objections that Trinh cited in her amended complaint. (See id. at 11-12, challenging the objections that Trinh specifically alleged in paragraph ten of her amended complaint). At the motion to dismiss stage, however, the Court cannot rely on emails not referenced in the complaint to resolve factual disputes. See Khoja, 899 F.3d at 1003 (stating that “[s]ubmitting documents not mentioned in the complaint to create a defense is nothing more than another way of disputing the factual allegations in the complaint”).
For these reasons, the Court rejects SHC's claim that the Court may consider the EEOC file emails at this stage, and as a result, limits its analysis to SHC's arguments about the allegations in Trinh's amended complaint. See Breshears v. Or. Dep't of Transp., No. 2:22-cv-01015-SB, 2023 WL 136550, at *2 n.2 (D. Or. Jan. 9, 2023) (“[Defendant] objects to the Court's consideration of two of the three exhibits because [Plaintiff] does not allege any of the contents of Exhibits 1 or 3 in the [FAC].... The Court agrees, and does not consider Exhibits 1 or 3 in deciding this motion.”) (simplified).
Consistent with the authorities and observations above, the Court declines further to address SHC's arguments about its affirmative defense of undue hardship, and recommends that the district judge deny SHC's motion to dismiss on this ground. The Court also notes that the Supreme Court's recent decision in Groff v. DeJoy, 600 U.S. 447, 468-71 (2023), clarified the “undue hardship” inquiry under Title VII. See Brown, 2023 WL 6147178, at *3-4 (detailing what Groff “clarified” in the Title VII context and noting that “[c]ourts analyze claims for religious discrimination under ORS § 659A.030 and Title VII together”) (citations omitted). Given this fact and the Court's decision not to consider any undue hardship defense until it receives a motion for summary judgment, the Court rejects Trinh's suggestion that Groff may necessitate “additional briefing” or a delay in the Court's ruling on SHC's pending motion. (See Pl.'s Resp. at 2, 8.)
II. RELIGIOUS DISCRIMINATION
A. Applicable Law
Trinh's religious discrimination claims are based on a failure-to-accommodate theory. (Am. Compl. ¶¶ 22-23, 27-28.) To establish a prima facie case for religious discrimination under this theory, Trinh must show that “(1) she had a bona fide religious belief, . . . which conflict[ed] 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.” Keene v. City & Cnty. of S.F., No. 2216567, 2023 WL 3451687, at *1 (9th Cir. May 15, 2023) (brackets omitted) (quoting Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006)). According to the EEOC, “[a] bona fide religious belief is one that is ‘sincerely held.'” Id. (quoting U.S. Equal Emp. Opportunity Comm'n, EEOC-CVG-2021-3, Section 12: Religious Discrimination, § 12-I(A)(2) (Jan. 15, 2021)).
A plaintiff's “religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.” Id. (citing Thomas v. Review Bd. Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981), Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1176 n.3 (9th Cir. 2021), and EEOC Guidance, § 12-I(A)(2)). But that “does not mean that courts must take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Bolden-Hardge, 63 F.4th at 1223 (citation omitted). Nor does that mean that employers need to accommodate personal preferences couched as a bona fide religious belief, as Title VII does not protect secular preferences. See Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681-83 (9th Cir. 1998) (holding that the plaintiff failed to establish a prima facie case of religious discrimination under Title VII because she failed adequately to show that the timing of her religious pilgrimage was part of her bona fide, pilgrimage-related religious belief, as opposed to a personal preference, and explaining that employers need not “accommodate the personal preferences of the employee” because “Title VII does not protect secular preferences”) (citations omitted).
Once the plaintiff establishes a prima facie case, “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 v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
B. Analysis
Trinh's religious discrimination claims are based on her allegation that as a “deeply religious person who follows tenants (sic) of both the Christian faith and Buddhism,” she had “serious objections to taking the vaccine because it would constitute violating her bodily integrity and tainting the purity of her body.” (Am. Compl. ¶¶ 6, 10) (emphasis added). SHC argues that Trinh's “bodily integrity” and “purity” objections to the vaccine are not truly religious in nature and thus Trinh has not established, and cannot in good faith allege the facts necessary to establish, a prima facie case of religious discrimination. (See Def.'s Mot. at 2, 9-13, 15; Def.'s Reply at 1-5.)
In support of its argument, SHC relies in large part on the Third Circuit's decision in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 877 F.3d 487, 492 (3d Cir. 2017). (See Def.'s Mot. at 10-12, 15, arguing that Fallon is “instructive” and that Trinh's objections are like the plaintiff's objections in Fallon, and citing a Second Circuit and district court decisions that “rejected similar bodily-integrity and purity type objections as not religious in nature”).
In Fallon, the plaintiff sued his former employer, a hospital, under Title VII, alleging that the employer discriminated against him and failed to accommodate his religion by concluding that he did not qualify for a religious exemption from a flu vaccination policy and terminating his employment. 877 F.3d at 488. At the motion to dismiss stage, the district court dismissed the case with prejudice on the ground that the plaintiff's beliefs (i.e., the flu “vaccine might do more harm than good”) were “not religious in nature and, therefore, not protected by Title VII.” Id. at 488-89 & n.2.
In affirming the district court's dismissal with prejudice, the Third Circuit addressed whether the plaintiff had pleaded a prima facie case of religious discrimination, and observed that the dispositive issue was whether the plaintiff's opposition to vaccination was a “religious belief under Title VII.” See Id. at 490 (“We are left to consider only whether [the plaintiff's] opposition to vaccination is a religious belief under Title VII. If not, he has not pleaded a prima facie case.”). On this issue, the Third Circuit relied on a three-part definition of religion that it adopted and described in Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981). See Fallon, 877 F.3d at 491-93 (noting that Africa adopted and described the definition and assessing whether the plaintiff's anti-vaccination beliefs met the “Africa factors” and, therefore, were religious).
The Fallon plaintiff's beliefs were “laid out in the complaint” and showed that he “agree[d] with a quote, attributed to the founder of Buddhism[.]” Id. at 492. Specifically, the plaintiff agreed with this quote:
Do not believe in anything simply because you have heard it. Do not believe in anything simply because it is spoken and rumored by many. Do not believe in anything merely on the authority of your teachers and elders. Do not believe traditions because they have been handed down for many generations. But after observation and analysis, when you find that anything agrees with reason and is conducive to the good and benefit of one and all, then accept it and live up to it.Id. The plaintiff also “believe[d] that one should not harm [his] . . . own body,” that “the flu vaccine may do more harm than good,” and that “he must follow his conscience and refuse the influenza vaccine” because “if he yielded to coercion and consented to the hospital mandatory [vaccine] policy, he would violate his conscience as to what is right and what is wrong.” Id.(simplified).
The Third Circuit recognized that anti-vaccination beliefs may be part of a broader religious faith in some circumstances and protected under Title VII, but nevertheless held that because the plaintiff's beliefs did not satisfy the Africa factors, they were not religious or protected:
It does not appear that [the plaintiff's] beliefs address fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature. Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine. In particular, the basis of his refusal of the flu vaccine-his concern that the flu vaccine may do more harm than good-is a medical belief, not a religious one. He then applies one general moral commandment (which might be paraphrased as, ‘Do not harm your own body') to come to the conclusion that the flu vaccine is morally wrong. This one moral commandment is an ‘isolated moral teaching'; by itself, it is not a comprehensive system of beliefs about fundamental or ultimate matters. Thus, we do not believe that either of the first two factors in Africa is met here.
[The plaintiff] fares no better under the third factor. [The plaintiff's] views are not manifested in formal and external signs, such as ‘formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.'
For this reason, because [the plaintiff's] beliefs do not satisfy any of the Africa factors, [the plaintiff's] beliefs do not occupy a place in his life similar to that occupied by a more traditional faith. His objection to vaccination is therefore not religious and not protected by Title VII.
We note that we are not the only court to come to the conclusion that certain anti-vaccination beliefs are not religious. This is not to say that antivaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can, and in those circumstances, they are protected. However, [the plaintiff] has not presented such circumstances here.Id. at 492-93 (footnotes and citations omitted).
The Ninth Circuit has cited favorably to and relied on Africa, a First Amendment case, albeit in the summary judgment and First Amendment contexts. See Alvarado v. City of SanJose, 94 F.3d 1223, 1225-31 (9th Cir. 1996) (reviewing a grant of summary judgment in the defendant's favor on a First Amendment claim and relying on Africa in evaluating whether there was “a cognizable religious interest at issue”). Recently, a judge in this district noted that the Africa factors were “not dispositive” in the Title VII context because it is a “much broader standard than that employed in the context of the First Amendment,” but “the Africa factors clearly have been endorsed within the Ninth Circuit and provide helpful guideposts[.]” Detwiler v. Mid-Columbia Med. Ctr., No. 3:22-cv-01306-JR, 2022 WL 19977290, at *3 n.3 (D. Or. Dec. 20, 2022) (simplified), findings and recommendation adopted, 2023 WL 3687406, at *1 (D. Or. May 26, 2023). Detwiler also cited favorably to Fallon with respect to whether certain beliefs were religious in nature. See Id. at *4.
The Court agrees that at minimum, Fallon and the Africa factors provide useful guidance here. Fallon supports the conclusion that a plaintiff's concerns about a vaccine's health effects, disbelief of scientifically accepted views that a vaccine is harmless, and desire to avoid a vaccine are not religious in nature nor protected under Title VII. Fallon also supports the conclusion that a plaintiff's anti-vaccination beliefs must address fundamental and ultimate questions having to do with deep and imponderable matters, and must be comprehensive in nature.
Applying those guideposts here and given the lack of specific allegations in her amended complaint, the Court finds that Trinh's religious beliefs are conclusory. See generally Bolden-Hardge, 63 F.4th at 1223 (recognizing that the Supreme Court has “cautioned against second-guessing the reasonableness of an individual's assertion that a requirement burdens her religious beliefs,” but adding that “[t]his principle does not mean that courts must take plaintiffs' conclusory assertions of violations of their religious beliefs at face value”) (simplified). Trinh alleges only that as a “deeply religious person who follows tenants (sic) of both the Christian faith and Buddhism . . . [and] is dedicated to following the tenants (sic) of her faith to the best of her ability,” she had “serious objections to taking the vaccine because it would constitute violating her bodily integrity and tainting the purity of her body.” (Am. Compl. ¶¶ 6, 11.)
Trinh fails to allege facts that plausibly suggest that these “bodily integrity” and “purity” objections “address fundamental and ultimate questions having to do with deep and imponderable matters, are comprehensive in nature, and are accompanied by certain formal and external signs.” Fallon, 877 F.3d at 492 (simplified). In fact, Trinh alleges far less factual support than the Fallon plaintiff, who also referred to harm and Buddhism in opposing a vaccine mandate. Absent additional factual allegations, Trinh has not plausibly alleged facts showing that her anti-vaccination beliefs are religious in nature and protected by Title VII. See Kather v. Asante Health Sys., No. 1:22-cv-01842-MC, 2023 WL 4865533, at *5 (D. Or. July 28, 2023) (dismissing certain plaintiffs' religious discrimination claims under Title VII and noting that the plaintiffs “allege[d] facts that hint[ed] at religious beliefs but [did] not specify how those beliefs conflict[ed] with receiving a COVID-19 vaccine,” and stating that “[a] ‘threadbare reference' to religious beliefs is insufficient at the motion to dismiss stage”) (citation omitted).
The Court also concludes that the district judge should give Trinh an opportunity to attempt to cure her pleading deficiencies. (But cf. Def.'s Mot. at 2, arguing that the Court should dismiss Trinh's amended complaint with prejudice because “amendment would be futile”). The record before the Court lacks sufficient factual detail on, among other things, what Trinh considered “tainting the purity of her body.” Arguably, such an allegation could be predicated on religious beliefs. See Keene, 2023 WL 3451687, at *1-2 (reversing the district court's finding that the plaintiffs had not made out a prima facie case of discrimination, holding that the district court erred in concluding that the plaintiffs' religious beliefs were not sincere or conflicted with receiving the COVID-19 vaccine, and noting that the plaintiffs swore “they [were] Christians who ‘believe[d] in the sanctity of life,'” the “record before the district court . . . reflect[ed] that COVID-19 vaccine manufacturers used ‘[f]etal cell lines . . . grown in a laboratory . . . [that] started with cells from elective abortions that occurred several decades ago' to at least test vaccine efficacy,” and although there were “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies,” the record “reflect[ed] that the COVID-19 vaccines are, albeit remotely, ‘derived' from aborted fetal cell lines,” which “directly contradict[ed] the district court's conclusion”); Kather, 2023 WL 4865533, at *4 (denying a motion to dismiss certain plaintiffs' Title VII claims and noting that one plaintiff “cite[d] opposition to injecting into his body anything that ‘originate[d] from fetal cell lines'” and it could “be inferred that [the plaintiff's] belief in God inform[ed] his opposition to receiving a vaccine he allege[d] originate[d] from the use of fetal cells,” and one plaintiff cited her “‘Christianity' and resistance to receiving a vaccine developed with fetal cell lines[, which was] another reasonably inferred religious conflict”).
For all of these reasons, the Court recommends that the district judge grant SHC's motion to dismiss Trinh's religious discrimination claims on the ground that she fails plausibly to allege that her anti-vaccination beliefs are religious in nature, and grant Trinh leave to amend. Furthermore, the Court will consider the merits of SHC's undue hardship affirmative defense when properly presented. The Court encourages the parties to confer regarding a case management schedule that allows for an early motion for summary judgment on the undue hardship affirmative defense, to allow for efficient resolution of that issue before timeconsuming and expensive discovery on other issues.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT IN PART and DENY IN PART SHC's motion to dismiss (ECF No. 10), and allow Trinh to file an amended complaint within fourteen (14) days.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.