Opinion
3:23-cv-01324-JR
04-16-2024
ROBERT MARSHALL, an individual, Plaintiff, v. KAISER FOUNDATION HEALTH PLAN OF THE NORHTWEST, a corporation, Defendant.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Defendant Kaiser Foundation Health Plan of the Northwest moves to dismiss plaintiff Robert Marshall's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendant's motion should be denied.
BACKGROUND
Defendant employed plaintiff at its dental office in Clackamas, Oregon. This case centers on defendant's denial of plaintiff's religious exception request surrounding the COVID-19 vaccine.
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); 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, defendant required all of its employees to be vaccinated against COVID-19 during “the summer of 2021.” First Am. Compl. (“FAC”) ¶ 12 (doc. 3).
At that time, plaintiff had been working for defendant “for over four years as a Dental Member Assistant.” Id. at ¶ 5. On August 6, 2021, plaintiff applied for a religious exemption to the COVID-19 vaccine requirement because he is “a devout Christian.” Id. at ¶ 12. In particular, plaintiff “had serious objections to taking the vaccine because he believes that his body is a temple of God, and he cannot inject anything into his body that would alter his immune system.” Id. He “also believes that abortion is murder, and he will not take anything into his body that has been tested on or produced using aborted fetal cells.” Id.
Plaintiff's exemption “was initially approved, then denied.” Id. at ¶ 13. He “was placed on unpaid administrative leave on December 4, 2021, and terminated on January 10, 2022.” Id.
Plaintiff “made several attempts to reach Defendant's Human Resources to file an appeal” but was “told there was no appeal process, even though [he] knows of a coworker who was able to get her job back after being denied.” Id. In addition, plaintiff “worked in the same office as his mother, who has the same religious beliefs, and she was granted her exemption.” Id. “Defendant has yet to explain why, in its view, after almost two years of being able to work without incident during the pandemic, Plaintiff's unvaccinated status suddenly created an unacceptable health and safety risk necessitating his termination.” Id. at ¶ 16.
On September 11, 2023, plaintiff initiated this lawsuit asserting claims for religious discrimination against defendant under Title VII and Or. Rev. Stat. § 659A.030(1)(a). On March 1, 2023, after defendant's request to transfer this case to the Central District of California as part of a putative Multidistrict Litigation was denied, defendant filed the present motion to dismiss. Briefing was completed in regard to that motion on April 12, 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
Defendant contends “[t]he FAC must be dismissed because it alleges no facts connecting Plaintiff's alleged personal religious beliefs with an objection to receiving the COVID-19 vaccination.” Def.'s Mot. Dismiss 4 (doc. 17).
Title VII and Or. Rev. Stat. § 659A.030(1)(a) both make it unlawful for an employer to discriminate against an individual in the terms and conditions of employment because of religion. “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).
To establish a prima facie case for religious discrimination based on a failure-to-accommodate, 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).
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.
Defendants argue the three factors articulated in Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981), govern whether a belief is religious in nature. Def.'s Mot. Dismiss 5 (doc. 17). As this District has expressly acknowledged, courts routinely “appl[y] the criteria identified in Africa [as] adopted by the Ninth Circuit in Alvarado v. City of San Jose, 94 F.3d 1223, 1229-30 (9th Cir. 1996)[,] in determining whether a set of beliefs is religious” for the purposes of First Amendment claims. Birkes v. Mills, 2011 WL 5117859, *3 (D. Or. Sept. 28, 2011), adopted by 2012 WL 930243 (D. Or. Mar. 19, 2012). Nevertheless, Title VII “is a much broader standard than that employed in the context of the First Amendment.” Id.; see also Prentice v. Nev. Dep't Corr., 2010 WL 4181456, *4 n.4 (D. Nev. Oct. 19, 2010) (recognizing a different standard applied to Title VII and First Amendment claims). Accordingly, “while the Africa factors certainly have been endorsed within the Ninth Circuit and provide helpful guideposts, they are not dispositive to this Court's Title VII analysis.” Detwiler v. Mid-Columbia Med. Ctr., 2022 WL 19977290, *3 n.3 (D. Or. Dec. 20, 2022), adopted by 2023 WL 3687406 (D. Or. May 26, 2023).
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”).
Within this framework, the Ninth Circuit has upheld the reliance on the use of aborted fetal cells in the vaccine's development in seeking a religious exception. See Keene v. City & Cnty. Of S.F., 2023 WL 3451687, *2-3 (9th Cir. May 15, 2023) (reversing the district court's denial of a preliminary injunction premised on a Title VII claim where the plaintiffs - i.e., “Christians who believe in the sanctity of life” - cited the use of fetal cell lines in requesting a religious exception, denoting “the resolution of [whether a belief is religious] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit [protection]”) (citation and internal quotations omitted).
Courts within this District have thus cited to Keene in denying myriad Rule 12(b)(6) motions. See Gamon v. Shriners Hosps. for Children, 2024 WL 641715, *4-5 (D. Or. Feb. 15, 2024) (denoting the plaintiffs in Keene merely alleged they were “Christians who believed in the sanctity of life” and were “opposed to the vaccines because they were derived from stem cells from aborted fetuses, in direct contradiction to [their] Christian beliefs,” which the Ninth Circuit found sufficient: Keene “forecloses [the defendant's argument, which is] an invitation for judges to consider a religious belief's validity based on its comprehensibility”); Kather, 2023 WL 4865533 at *4 (allegations the plaintiff was a “New Age Christian” who objected to the use of aborted fetal cell lines in the development of the COVID-19 vaccine were adequate to state a plausible religious discrimination claim) (citing Keene, 2023 WL 3451687 at *2); see also Burns v. Asante Rogue Reg. Med. Ctr., LLC, 2024 WL 712610, *4 (Feb. 21, 2024) (denying a Rule 12(b)(6) motion in regard to virtually identical allegations).
Significantly, defendant does not cite to a single case from this District to support the proposition that plaintiff's “alleged abortion-related beliefs” are insufficient in this context. Def.'s Mot. Dismiss 9-11 (doc. 17).
In light of this precedent, the Court finds that plaintiff has alleged plausible religious discrimination claims. Indeed, while plaintiff may have also relied on his medical and/or secular beliefs surrounding the safety of the COVID-19 vaccine and the sanctity of his body, it cannot be denied that he expressly identified his religious belief that “abortion is murder.” FAC ¶ 12 (doc. 3); see also Quinn v. Legacy Health, 2024 WL 620344, *2 (D. Or. Feb. 13, 2024) (denying the defendant's Rule 12(b)(6) motion in regard to a plaintiff who expressed reticence as to the science behind COVID-19 vaccines and also alleged abortion is “genocide of the unborn” and her body is “a living temple”); Compl. Ex. C (Case No. 3:23-cv-00331-JR, Doc. 1).
RECOMMENDATION
For the reasons stated herein, defendant's Motion to Dismiss (doc. 17) should be denied. Defendant's request for oral argument is denied as unnecessary.
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.