Opinion
C/A 8:23-cv-6004-DCC-KDW
07-31-2024
Kenneth Pete Millwood, Plaintiff, v. Tyson Foods, Inc., Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Plaintiff Kenneth Pete Millwood (“Millwood” or “Plaintiff”)brings this action against his former employer, Tyson Foods, Inc. (“Tyson” or “Defendant).Plaintiff's claims relate to his having been placed on leave and eventually separated from employment based on his refusal to comply with Tyson's COVID-19 vaccination policy. He alleges religious discrimination pursuant to Title VII and South Carolina Human Affairs Law (“SCHAL”); disability discrimination under the Americans with Disabilities Act (“ADA”); genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”); and age discrimination in violation of the Age Discrimination Act (“ADEA”). See generally, Compl., ECF No. 1. This matter is now before the court for consideration of Defendant's Motion to Dismiss. ECF No. 10.Plaintiff opposes the Motion, ECF No. 21; Defendant filed a Reply, ECF No. 26. Having considered these filings and applicable law, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 10, be granted in part and denied in part as discussed within.
Defendant's Motion lists Plaintiff's name as “Kevin Pete Millwood”; however, the Complaint was filed by “Kenneth Pete Millwood.”
The court notes that Defendant has indicated that Plaintiff's former employer, and the proper Defendant for this action, is Tyson Service Center Corporation. Def. Mot. Dism. 1, n.1., ECF No. 10. At this time, however, no motion has been made by either party to make this change to the pleadings. In any event, the precise identity of Plaintiff's employing entity is not at issue.
This employment matter was referred to the undersigned for pretrial proceedings. See 28 U.S.C. § 636(b); Local Civ. Rule 73.02(B)(2) (D.S.C.). This Report and Recommendation (“Report”) is submitted to the district judge as to Defendant's potentially dispositive motion to dismiss.
I. Standard of Review
Defendant seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). “A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.” (citing Twombly, 550 U.S. at 556)). Rule 8(d)(1) further clarifies that each allegation in a pleading should be “simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1); see Twombly, 550 U.S. at 555 (noting that the Rule requires only a “short and plain statement of the claim showing that the pleader is entitled to relief” and giving the “defendant fair notice of” the claim and its grounds (internal quotation marks omitted)). When determining whether a complaint comports with the requirements of Rule 8, courts look to a variety of factors, including the length and complexity of the complaint, whether the complaint is sufficiently clear to allow the defendant to defend himself, and whether the plaintiff had the benefit of counsel. See Sewraz v. Long, 407 Fed.Appx. 718, 718-19 (4th Cir. 2011) (unpublished). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus. Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). As the Fourth Circuit recently noted, while facts must be taken as true, the test at the Rule 12(b)(6) stage “is not legally myopic. Rather, it must be applied with common sense to determine whether a complaint contains the ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,' not merely conceivable.” Tabb v. Bd. of Educ. of Durham Pub. Sch., 29 F.4th 148, 155 (4th Cir. 2022) (quoting Iqbal, 556 U.S. at 678) (emphasis added in Tabb)). Further, although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
II. Factual background
The following facts are taken from the Complaint and are construed in the light most favorable to Plaintiff, the nonmoving party.
Plaintiff worked for Tyson as a field sales consultant/sales manager. Compl. ¶ 5. Plaintiff worked for Tyson for over 24 years; for the last 15 years of his employment Plaintiff worked from his home office, which was located in Pickens County, South Carolina for the last five of those years. Id. ¶¶ 20-21. On August 3, 2021, Tyson announced it was mandating that all employees get a COVID-19 vaccine (the “Vaccination Policy”). Id. ¶¶ 15, 22. The Vaccination Policy announced it would require all employees (“team members”) at its United States office locations to be fully vaccinated by October 1, 2021. All other team members were required to be vaccinated by November 1, 2021. Id. ¶ 15. The Vaccination Policy provided, “Exceptions to the vaccination mandate will involve workers who seek medical or religious accommodation.” Id. ¶ 16.
After Tyson announced the Vaccination Policy, Plaintiff “immediately sent a letter in August letting Tyson know that he was requesting a religious exemption.” Compl. ¶ 34. Based on Tyson's procedures, Plaintiff “completed a company form detailing his religious exemption request.” Id. ¶ 35. On August 25, 2021, Tyson advised Plaintiff his religious accommodation had been granted. Pursuant to Tyson's Vaccination Policy, Plaintiff was placed on unpaid leave during which he remained eligible for company healthcare benefits. Id. ¶ 36. Pursuant to the Vaccination Policy, the accommodation entitled Plaintiff to a one-year leave of absence during which he was not terminated but did not receive compensation (known as “LOA+”). During that time, if employees became vaccinated, they potentially could return to work. Their original positions were not guaranteed. If they were not vaccinated by the end of that one-year period they would be terminated. Id. ¶¶ 17-18.
Copies of Plaintiff's letter and completed form were not attached to the Complaint, nor were they provided by Defendant as part of its Motion to Dismiss. Portions of the Complaint further detailing Plaintiff's pleaded reasons for the request for religious accommodation are set out below.
Plaintiff was placed on LOA+ effective October 1, 2021. At that time, his company property was picked up, and his job was “quickly filled.” Compl. ¶¶ 41-42. “When Tyson returned to hiring, the company refused to offer [Plaintiff] his former job-or any job that was in his pay grade or geographic area.” Id. ¶ 45. Tyson told Plaintiff to “look for jobs available on the company's human resources portal[.]” Id. ¶ 46. Plaintiff was terminated following the expiration of his leave.
On January 20, 2022, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the South Carolina Human Affairs Commission (“SHAC”) (“Initial Charge”). Compl. ¶ 53; see also Initial Charge, ECF No. 1-1. In the Initial Charge, Plaintiff alleges that he was discriminated against based upon his religious beliefs in violation of Title VII and the SCHAL; discriminated against because Tyson “regarded” him as disabled in violation of the ADA; discriminated against based upon genetic information in violation of GINA; and discriminated against based upon his age in violation of the ADEA. See ECF No. 1-1. Plaintiff filed an amended charge of discrimination (“Amended Charge”) on August 2, 2023, alleging that Tyson discriminated/retaliated against him based upon his religion/age in violation of Title VII and the ADEA. ECF No. 1-2. The EEOC issued Plaintiff a Notice of Right to Sue on August 24, 2023. ECF No. 1-3. Plaintiff filed his Complaint on November 21, 2023.
III. Analysis
A. Plaintiff's Title VII and SCHALfailure-to-accommodate religious discrimination claims
Because the analytical framework for SCHAL is identical to the framework for Title VII claims, they are considered together herein. See Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 717, n.6 (D.S.C. 2014).
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual . . . because of such individual's . . . religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.” Id. § 2000e(j). Employees may utilize two theories in asserting religious discrimination claims: “failure to accommodate” and “disparate treatment” theories. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996) (citation omitted). As noted by Defendant, while Plaintiff's Complaint does not expressly specify under which theory or theories he is proceeding the Complaint obviously focuses on a failure-to accommodate claim. Def. Mem. 5 & n.4. (also arguing in a footnote that Plaintiff has not set out a plausible disparatetreatment claim of religious discrimination). In responding to the Motion to Dismiss, Plaintiff analyzes his claim as a failure-to-accommodate claim and does not discuss a disparate-treatment theory. Pl. Mem. 6-17. Accordingly, Plaintiff's Title VII claim is analyzed as one for failure to accommodate.
Absent direct evidence of discrimination or retaliation, the McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), burden-shifting analysis is appropriate in considering claims like those brought by Plaintiff. See E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (“In [Title VII] religious accommodation cases, we employ a burden shifting scheme akin to the one articulated by the Supreme Court in [McDonnell Douglas].”). Now-Chief United States District Judge Timothy M. Cain recently articulated the court's Title VII standard of review at this stage as follows:
At the motion to dismiss stage, a plaintiff “need not plead facts sufficient to establish a prima facie case of [ ] discrimination[,]” but, rather, the “pleading standard established in Iqbal and Twombly applies[.]” Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017) (citations omitted). In other words, at the motion to dismiss stage, a plaintiff is only required to allege facts to satisfy the elements in compliance with Iqbal. Id. Accordingly, the question is “whether [the plaintiff] alleges facts that plausibly state a violation of Title VII ‘above a speculative level.'” Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020) (quoting Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010)). However, the elements of a prima facie case “inform[ ] a court's evaluation” at this stage. See Tynes v. Mayor and City Council of Baltimore, C. A. No. 1:22-cv-1452-ELH, 2023 WL 2664233, at *10 (D. Md. Mar 28, 2023) (citations omitted).Montgomery v. Prisma Health, No. 6:23-CV-00395-TMC, 2024 WL 449274, at *5 (D.S.C. Feb. 5, 2024).
Liability for a Title VII failure-to-accommodate claim is based upon an employer's making an employee's “religious practice, confirmed or otherwise, a factor in [an] employment decision[ ].” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015). A plaintiff may establish his prima facie case of failure to accommodate through the following elements: “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Chalmers, 101 F.3d at 1019). “If the employee establishes a prima facie case, the burden then shifts to the employer to show that it could not [reasonably] accommodate the plaintiff's religious needs without undue hardship.” Chalmers, 101 F.3d at 1019.
Here, Defendant seeks dismissal, arguing Plaintiff has not provided sufficient information regarding the first two prongs of his prima facie case. The court considers these in turn.
1. Bona fide religious belief
Determining whether a plaintiff has a “bona fide religious belief” is a two-pronged inquiry: a court must determine whether the employee's belief is “religious” in nature, as opposed to social, political, or economic views or personal preferences, and whether that belief is “sincerely held.” United States v. Seeger, 380 U.S. 163, 185 (1965). A recent decision from the Eastern District of Virginia described the pleading standard for a protected religious belief as follows:
As Defendants point out, Title VII does not protect just any belief. To be protected, an employee's belief must be religious in nature. McManus v. Bass, No. 2:05-cv-117, 2006 WL 753017, at *4 (E.D. Va. Mar. 21, 2006) (citing Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)) (“Yoder”); see also Holt v. Hobbs, 574 U.S. 352, 360-61, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015) (noting, in the First Amendment context, that a “request for an accommodation must be sincerely based on a religious belief and not some other motivation”). Of course, courts are in no position to “question the centrality of particular beliefs or practices of faith, or the validity of particular litigants' interpretations of those creeds.” Hernandez v. Comm 'r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). Indeed, the determination of whether a plaintiff's beliefs are religious must not turn upon a judicial perception of the belief or practice in question. See Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see also United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (noting that courts are not free to reject beliefs because they consider them “incomprehensible”). The Court must therefore determine whether the Plaintiffs' purported beliefs are both (1) “sincerely held” and (2) “religious” in nature. Welsch v. United States, 398 U.S. 333, 339, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).Ellison v. Inova Health Care Servs., No. 1:23-CV-00132-MSN-LRV, 2023 WL 6038016, at *4 (E.D. Va. Sept. 14, 2023).
Both parties cite the Ellison decision for differing purposes. Ellison is not controlling on this court. Cf. Kuntze v. Josh Enterps., Inc., 365 F.Supp.3d 630, 641-42 (E.D. Va. 2019) (noting decisions from other district courts within the Fourth Circuit are not controlling but may be persuasive). In any event, the undersigned notes the absence of controlling authority regarding what must be pleaded to survive a motion to dismiss as to the issue of whether an employee has set out a sufficiently “religious” belief in the context of an abortion-related objection to the Covid-19 vaccination.
Here, Defendant indicates it is not questioning the “sincerity” of Plaintiff's “purported beliefs.” Rather, Defendant's focus is on whether Plaintiff has “sufficiently identified an actual religious belief to support his Title VII and SCHAL claims.” Reply 4 (emphasis in original). In a nutshell, Defendant argues Plaintiff's Complaint does not include facts sufficient to demonstrate his stated belief is “religious” for purposes of protection under Title VII. Def. Mem. 5-9; Reply 4-6. Plaintiff submits he has set out sufficient information. Pl. Mem. 11-15.
Resolution of this issue requires detailed focus on what is pleaded in Plaintiff's Complaint. Specifically relevant to Plaintiff's discussion of his religious objections, the Complaint includes the following allegations related to his objection to the vaccine:
23. Plaintiff holds sincere religious objections that prevented him from receiving the COVID-19 vaccine.
24. Plaintiff is staunchly opposed to abortion as it conflicts with his religious beliefs and moral conscience.
25. Presently, all COVID-19 vaccines have made use either in production or testing of fetal cell lines developed from tissues derived from aborted fetuses.
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29. As such, Plaintiff holds sincere concerns surrounding the process used to manufacture the vaccines and cannot receive a COVID-19 vaccine without violating his religious opposition to abortion.
30. While the production of the vaccines did not reportedly require any new abortions, Plaintiff objects to receiving the COVID-19 vaccines on the basis that, even assuming the vaccines do confer a meaningful health benefit, that benefit is one from ill-gotten gains.
31. Plaintiff believes that any benefit the COVID-19 vaccines may confer flows from the unjust exploitation of unborn human life. On this basis alone, Plaintiff refused on religious grounds to accept or be forced to accept the COVID-19 vaccines.
32. Plaintiff does not take any other medication, such as Tylenol, that is developed with aborted fetal cells.
33. Plaintiff also believes according to his religious beliefs that the body is a temple, and thus, untested vaccination shots are not appropriate.
* * *
50. Tyson's CEO Donnie King attempted to get the Plaintiff to change his mind about the religious exemption. King personally sent the Plaintiff a link to read, and the Plaintiff sent him his rebuttal. King then simply wished the Plaintiff well and did not assist him in his quest to keep his job.
* * *
91. Plaintiff holds sincere religious beliefs that preclude him from receiving a COVID-19 vaccine.
Compl., ECF No. 1. The Initial Charge filed with the EEOC and SCHAC on January 20, 2022, and attached as an exhibit to the Complaint,included the following language relevant to Plaintiff's request for a religious exemption:
The Charge is attached as an exhibit to Plaintiff's pleading. Defendant has not questioned its authenticity. Accordingly, it appropriately may be considered at the Rule 12(b)(6) stage. Epcon Homestead, LLC v. Town of Chapel Hill, 62 F.4th 882, 885 (4th Cir. 2023) (“The Court may []consider documents attached to the complaint or incorporated by reference, including those attached to the motion to dismiss, as long as they are integral to the complaint and authentic[.]”).
. . . I objected to each of the available COVID-19 vaccines on religious grounds because all of them were manufactured, developed, and/or tested using aborted fetal cells. My Christian religious beliefs require me to oppose abortion and not be complicit in any way. Receiving one of these vaccines would make me complicit in abortion and cause me to violate my deep and sincerely held religious beliefs.
Initial Charge, ECF No. 1-1 at 3.
As did the Ellison court the undersigned notes no evidence calling into question the sincerity of Plaintiff's belief. Ellison, 2023 WL 6038016 at *4. The crux of the Defendant's first ground for dismissal, then, is whether Plaintiff sufficiently has tied his abortion-related objections to the vaccine to beliefs adequately pleaded to be “religious” in nature.
Whether one's practices and beliefs are religious in nature is difficult for courts to decide. Doswell v. Smith, No. 94-6780, 1998 WL 110161, at *3, 139 F.3d 888 (table) (4th Cir. Mar. 13, 1998). “[I]n determining whether an employee's beliefs are religious in nature, courts have analyzed whether the beliefs in question (1) ‘address fundamental and ultimate questions having to do with deep and imponderable matters,' (2) are ‘comprehensive in nature,' and (3) ‘are accompanied by certain formal and external signs.'” Ellison, 2023 WL 6038016, at *4 & n.6 (quoting Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981) and noting that the Fourth Circuit has cited the Africa standard with approval). While the Africa case may be instructive the court notes the Third Circuit's language cautioning the test is meant to be flexible. See Africa, 662 F.2d at 1032 n.13. Further, the Africa decision related to whether a permanent injunction should issue-necessarily a different standard of review than that employed herein.
Quoting a decision from the Western District of Arkansas, Defendant argues Plaintiff “must allege facts ‘regarding the nature of [his] belief system, as well as facts connecting [his] objection to that belief system.'” Def. Mem. 6 (quoting Jackson v. Tyson Foods, Inc., No. 5:23-cv-5102, 2023 WL 9097854, at *4 (W.D. Ark. Nov. 27, 2023); citing additional out-of-district cases, including Ellison). Defendant submits Plaintiff's Complaint is deficient because “his objections to Tyson's vaccine policy are [not] sufficiently tied to a religious belief.” Def. Mem. 9. Rather, Defendant argues, Plaintiff's allegations of beliefs that his “‘body is a temple,'” and “vaccines were tested using ‘fetal cell lines,'” are conclusory. Def. Mem. 9 (citing Compl. ¶¶ 2331, 33, 91-92; citing Ellison, Jackson, and Foshee v. AstraZeneca Pharm., SAG-23-00894, 2023 WL 6845425, at *5 (D. Md. Oct. 17, 2023)). Instead, Defendant submits, Plaintiff's objections “relate to issues which are solely secular in nature[,]” and his claim should be dismissed. Def. Mem. 9 (emphasis in original). Defendant notes that many courts, including Ellison, have determined claims that one's “body is a temple,” without more, are insufficient to establish the religiosity of an objection. Def. Mem. 10-11 (citing several cases, including Ellison and Jackson). Defendant concludes by arguing Plaintiff's “reliance upon his concern that vaccines were tested using ‘fetal cell lines' is per se insufficient to state a plausible claim for religious discrimination.” Def. Mem. 12 (arguing this “allegation-concerning the testing procedure for a vaccine-is inherently scientific, not religious”).
In response, Plaintiff spends several pages discussing the evolution of First Amendment jurisprudence concerning the free exercise of religion, noting several Supreme Court decisions, including Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989). Pl. Mem. 7. As noted by Plaintiff, the Frazee Court “reject[ed] the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.” 489 U.S. at 834. More specific to what must be pleaded in alleging Plaintiff's Title VII religious discrimination claim, Plaintiff takes the position that the allegations in his Complaint are sufficient to set out a bona fide religious belief for purposes of his Title VII claim. Pl. Mem. 11-15 (citing several cases in support). For example, Plaintiff cites a case from the Southern District of New York in which the court found the employee's allegation that “as a practicing Christian, his sincerely held religious beliefs prevented him from receiving ‘a COVID-19 vaccine that was tested, developed, or produced with fetal cell lines derived from procured abortions[]'” was sufficient to establish that prong of his Title VII religious accommodation claim. Algarin v. NYC Health + Hosps. Corp., 678 F.Supp.3d 497, 508 (S.D.N.Y. 2023) (granting motion to dismiss on other grounds).
Compellingly, Plaintiff also looks to a portion of the Ellison decision in support of his argument. As noted by Plaintiff, Ellison-one of the plaintiffs in the multi-plaintiff Ellison matter-was found to have provided sufficient information as to his abortion-based objection to have “adequately linked his objection to a sincerely held religious belief.” Ellison, 2023 WL 6038016, at *6; Pl. Mem. 13-14. Plaintiff notes that Ellison, too, made statements akin to those he had made, including notations that “every life is sacred,” and his faith did not allow him to benefit from one whose life was taken. Pl. Mem. 14 & n.8. Plaintiff acknowledges, too, that Ellison had provided citations from the Christian Bible. However, Plaintiff submits this distinction is not fatal as a bona fide religious belief can be shown without the necessity of indicating affiliation with a particular group. Id.
On Reply, Defendant again argues dismissal is appropriate. “Critically, Plaintiff offers no facts which identify his purported religious beliefs and further fails to provide any details regarding the actual religious denomination which he follows, religious texts upon which his beliefs are founded, or any information regarding the tenants [sic] of his purported beliefs.” Reply 2. Defendant then again cites the Western District of Arkansas decision of Jackson, 2023 WL 9097854 and claims Plaintiff's arguments are “squarely contradicted by controlling precedent[.]” Id.
Neither party cites any controlling precedent from the Supreme Court of the United States or the Fourth Circuit Court of Appeals that directly informs the court's determination of how specifically religiosity must be pleaded to survive Defendant's Rule 12(b)(6) challenge. Nor has the undersigned's independent research revealed such precedent.
Regarding the principal argument as to whether Plaintiff plausibly has pleaded a bona fide religious belief for purposes of the Rule 12(b)(6) challenge, the undersigned notes this is a somewhat close question. Both parties have provided out-of-district case law to support their arguments. None of this case law is controlling, of course. Having considered in detail the arguments and cases cited by both parties, the undersigned is of the opinion that Plaintiff has sufficiently pleaded a bona fide religious belief in support of his Title VII failure to accommodate claim. Close review of the Complaint reveals more than an “unadorned, the-defendant-harmed-me” approach to pleading. Cf. Iqbal, 556 U.S. at 678 (explaining that “unadorned, the-defendant-harmed-me accusations” are insufficient to plausibly state a claim for relief). Rather, Plaintiff set out many details of how the stem-cell-based research and development of the vaccines at issue allegedly violated his religious beliefs. He noted his religious objection to abortion, any potential benefit having been derived from “ill-gotten gains,” and the “unjust exploitation of unborn human life.” Compl. ¶¶ 30-31. Further, he identified himself as a Christian, noting his “Christian religious beliefs require [him] to oppose abortion and not be complicit in any way.” Initial Charge, ex. A to Compl., ECF No. 1-1 at 3.
The court notes the complaint in Ellison also included verses from the Christian Bible that provided a more complete explanation of that plaintiff's religious objection. However, the court disagrees that dismissal is required in this matter. The analysis herein is “necessarily an individualized one.” Ellison, 2023 WL 6038016, at *4. The prima facie burden generally is not an onerous one. See generally Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). On the facts of this case, more is not required as to this portion of Plaintiff's pleading. This portion of Defendant's Motion to Dismiss should be denied.
2. “Body-is-a-temple” claim
On the other hand, the undersigned agrees with Defendant that Plaintiff's allegation that “according to his religious beliefs that the body is a temple, and thus, untested vaccination shots are not appropriate,” Compl. ¶ 33, is insufficient to support the bona fide religious belief prong of his Title VII claim. As in Ellison, Plaintiff's focus of the “body is a temple” claim is on the untested nature of the vaccination. 2023 WL 6038016, at *5 (“[T]hough couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety. District courts have routinely rejected similar claims.) (citing Passarella v. Aspirus, Inc., Nos. 22-cv-342, 22-cv-392, 2023 WL 2455681, at *2-7 (W.D. Wis. Mar. 10, 2023) (finding that exemption requests “predicated fundamentally on [ ] concerns with the safety of the vaccine and [plaintiffs'] right to bodily integrity”-even if based on the “belief that [plaintiff's] body is a temple” and “ratified by prayer”-are fundamentally “medical judgments . . ., not matters of religious belief”); see also Spa v. Aiken/Barnwell Cntys. Cmty. Action Agency, Inc., No. CV 1:24-31-JDA-SVH, 2024 WL 2848492, at *4, 6 (D.S.C. Mar. 1, 2024) (collecting cases and recommending dismissal of plaintiff's safety-focused “body-as-a-temple” claim, noting “the conclusion that whether the COVID-19 vaccine is harmful or ineffective is not a belief, religious or otherwise, but rather a concern of scientific fact.”); report and recommendation adopted sub nom. Rhonda Spa v. Aiken/Barnwell Cntys. Cmty. Action Agency, Inc., No. 1:24-CV-00031-JDA, 2024 WL 2315293 (D.S.C. May 22, 2024).
Accordingly, the undersigned recommends dismissal of Plaintiff's “body-is-a-temple” claim as it is not sufficiently tied to religion. However, it is recommended that Defendant's Motion to Dismiss on the basis of Plaintiff's not having plausibly pleaded a bona fide religious belief in opposing the vaccination mandate on abortion/stem-cell-research-related grounds be denied. As Defendant also challenges whether Plaintiff adequately communicated his religious objection to it the court considers that next.
3. Informed employer of belief
Defendant also argues Plaintiff has not presented “sufficient facts to demonstrate that he adequately informed Tyson of his religious beliefs.” Def. Mem. 9 (citing Chalmers, 202 F.3d at 1019). Defendant submits Plaintiff's Complaint includes “no allegation” that he informed Tyson of his beliefs and also fails to provide details of those beliefs. Def. Mem. 10 (citing Kiel v. Mayo Clinic Health Sys. Se Minn., No. CV 22-1319 (JRT/ECW), 2023 WL 5000255 (D. Minn. Aug. 4, 2023), rev'd and remanded sub nom. Ringhofer v. Mayo Clinic, Ambulance, 102 F.4th 894, 901-02 (8th Cir. 2024)). Defendant argues Plaintiff's Complaint is deficient in this regard in that he “entirely omits any allegation that he informed Tyson of his putative religious beliefs[.]” Reply 7.
Plaintiff notes Kiel is not controlling in this jurisdiction and distinguishes it on its facts. See Pl. Mem. 16. In any event, on May 24, 2024 (after briefing had been completed as to the instant Motion) the Eighth Circuit reversed the district court's grant of the employer's motion to dismiss, finding Kiel and co-plaintiffs had adequately pleaded a bona fide religious belief and had adequately informed the employer of those beliefs. Ringhofer v. Mayo Clinic, Ambulance, 102 F.4th at 901-02 (reversing and remanding Kiel, 685 F.Supp.3d 770 (D. Minn. 2023)).
Here, the undersigned agrees with Plaintiff that his Complaint adequately pleads that he made Tyson aware of his request for a religious accommodation. Pl. Mem. 16-17. Following Tyson's own procedures, in August 2021 Plaintiff submitted his written request for religious accommodation on Tyson's own form. Compl. ¶¶ 34-35. Indeed, Tyson approved Plaintiff's request for religious accommodation. Id. ¶ 26. Further, the Complaint relays additional communications between Plaintiff and Tyson: Tyson's CEO sent an article to Plaintiff in attempt to change his mind about the religious objection; Plaintiff then “sent him his rebuttal.” Compl. ¶ 50.
Like Plaintiff, the undersigned finds it a bit “disingenuous” (Pl. Mem. 17) for Tyson to claim it was not sufficiently informed that Plaintiff's religious beliefs conflicted with its Vaccination Policy when Plaintiff provided the information sought on Tyson's form, communicated with Tyson's CEO regarding the religious accommodation request, and was, in fact, granted that request. Furthermore, as Plaintiff pointed out, an employer may violate Title VII if Plaintiff's religion is a “motivating factor” in taking an adverse employment action. Abercrombie & Fitch Stores, 575 U.S. at 773 (“An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.” (emphasis added)).
Here, Defendant was aware of Plaintiff's request for religious accommodation and received the information requested on its prepared form as well as communicated further through its CEO. Furthermore, Defendant granted the request. At this pleadings stage, this is sufficient. Plaintiff has adequately pleaded that he made his request for religious accommodation known to Defendant. This portion of Defendant's Motion to Dismiss should be denied.
In summary, the undersigned is of the opinion Defendant's Motion to Dismiss Plaintiff's Title VII and SCHAL religious accommodation claims should be denied as more fully discussed above.
B. Plaintiff's ADA claim
Next, Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's ADA-based claim of disability discrimination, arguing Plaintiff has not set out any actual or perceived “disability.” Def. Mem. 14-18; see id. at 16-17 (citing numerous cases in support of dismissal); see also Reply 7-11. In response, Plaintiff argues he has pleaded an actionable disability by alleging Defendant “discriminated against [him] on the basis of a perceived disability: being unvaccinated.” Compl. ¶ 122; see Pl. Mem. 17-19 (citing only general caselaw).
The ADA protects qualified individuals with a disability. The undersigned agrees with Plaintiff's argument that showing one is “perceived” or “regarded” as disabled is one of several ways to establish a disability status for purposes of considering ADA-related claims. “An individual is disabled under the ADA . . . if he or she: (1) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.” Davis v. Univ. of N. C., 263 F.3d 95, 99 (4th Cir. 2001) (citations omitted); see also 42 U.S.C. § 12102(1). To proceed under a “regarded as” theory, the plaintiff must “establish[ ] that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.§ 12102(3)(A).
As Plaintiff has made it clear he is proceeding under a “regarded as disabled” theory, consideration of Defendant's arguments as to whether Plaintiff sufficiently has pleaded the limitation of a major life activity is unnecessary. See E.E.O.C. v. Loftin Fabrication, LLC, 462 F.Supp.3d 586, 600 (M.D. N.C. 2020) (“If [employee] proceeds under the “regarded as” prong, the EEOC [plaintiff] need not show an impairment that substantially limits a major life activity[.]”).
The court's agreement with Plaintiff's legal argument ends there, however. Without offering legal support, Plaintiff argues Defendant “necessarily assumed that if Mr. Millwood did not submit to its mandated COVID-19 vaccinations, then Mr. Millwood was immune-deficient and thereby perceived by Tyson to be limited in the major life activity of performing his job duties safely.” Pl. Mem. 18 (citing Compl. ¶¶ 122-24). On the other hand, Defendant has provided numerous citations to opinions of other courts in the Fourth Circuit and elsewhere to the effect that a person's unvaccinated status does not mean they are “regarded as” disabled for purposes of the ADA. Plaintiff makes no effort to distinguish the cases cited by Defendant.
For example, faced with the same argument the court in Finn v. Humane Society of United States, Civil Action No. GLR-23-2107, 2024 WL 1765702, *6 (D. Md. April 24, 2024), recently reiterated other rulings that have “repeatedly held that a person's status as unvaccinated does not support a ‘regarded as' claim under the ADA.” (citing, inter alia, Foshee, 2023 WL 6845425, at *5 (dismissing ADA discrimination claim pursuant to Rule 12(b)(6) and noting that imposing a vaccine policy “does not plausibly reflect a determination or belief that any . . . employees are disabled or impaired” under the ADA)). See also Speaks v. Health Sys. Mgmt., Inc., No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *5 (W.D. N.C. Aug. 17, 2022) (an employee's refusal to get an employer-mandated vaccine reflects a personal choice and is not an “‘impairment' of any sort”).
Plaintiff's ADA claim should be dismissed.
C. Plaintiff's GINA claim
Next, the court considers Plaintiff's claim of discrimination in violation of Title II of GINA, 42 U.S.C. § 2000ff, et seq. GINA prohibits an employer from discriminating against an employee “because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). “Genetic information” is defined as “information about (i) such individual's genetic tests; (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). A “genetic test,” in turn, “means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7)(A).
Plaintiff avers Tyson discriminated against him for not having received a COVID-19 vaccine, claiming that every COVID-19 vaccine created is “a gene therapy that may integrate with a recipient's DNA” and that Defendant discriminated against him “on the basis of his not having undergone a genetically modifying therapy[].” Compl. ¶ 140; see id. ¶¶ 135-37, 139-40, 142-43.
Citing decisions in which various courts have ruled against arguments like Plaintiff's, Defendant submits the GINA claim is subject to dismissal. Def. Mem. 18-21 (citing various cases that found have found a COVID-19 vaccine is not “genetic information” and does not implicate GINA, e.g., Anderson v. United Airlines, Inc., No. 23 C 989, 2023 WL 5721594, at *7 (N.D. Ill. Sept. 5, 2023) (denying plaintiff's claim that a COVID-19 vaccine is “gene therapy,” finding the vaccine is not “genetic information” that could implicate GINA; dismissing a claim for discrimination because of genetic information) reconsideration denied, No. 23 C 989, 2024 WL 1555496 (N.D. Ill. Apr. 10, 2024); Harden v. Honeywell Int'l, Inc., No. 1:23-CV-00176-JPB, 2023 WL 3310172, at *4 (N.D.Ga. May 8, 2023) (dismissing discrimination claim under GINA pursuant to Rule 12(b)(6) as plaintiff's assertions regarding COVID-19 vaccine did not met the definition of “genetic information” for purposes of GINA)). As noted by Defendant, the EEOC issued guidance in which it determined that employers requiring documentation or confirmation of vaccination are not “using acquiring, or disclosing genetic information and, therefore, [are] not implicating Title II of GINA.” What You Should Know About CO VID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada- rehabilitation-act-and-other-eeo-laws#K. 14 (updated May 2021) (last viewed June 12, 2024)).
In opposing Defendant's well-supported Motion to Dismiss, Plaintiff merely cites to his Complaint and his theory that the vaccine is “gene therapy.” Pl. Mem. 19-20. Plaintiff makes no attempt to counter the cogent legal argument offered by Defendant. As has “every district court to address this issue,” Anderson, 2023 WL 5721594, at *8, the undersigned recommends a finding that Defendant's COVID-19 vaccination requirements do not implicate GINA protections and granting Defendant's Motion to dismiss Plaintiff's GINA claim.
D. Plaintiff's ADEA claim
Plaintiff's final cause of action is one for age-based discrimination in violation of the ADEA. Compl. ¶¶ 145-53. Defendant also seeks Rule 12(b)(6) dismissal of this claim, arguing that Plaintiff has not set out plausible allegations of age-based discrimination. Def. Mem. 21-23. In his brief response to this portion of Defendant's Motion Plaintiff argues his “factual allegations collectively show that Mr. Millwood's discharge occurred under circumstances giving rise to an inference of age discrimination under the ADEA.” Pl. Mem. 21 (referencing Compl. ¶¶ 42, 45, 48).
While a plaintiff is not required to plead a prima facie case of discrimination to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), he must “allege facts to satisfy the elements of a[n] [ADEA] cause of action.” McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015). In the context of an ADEA discrimination claim, those elements are (1) the plaintiff is over 40 years of age, (2) he experienced discrimination by his employer, and (3) the discrimination was because of his age. Tickles v. Johnson, 805 Fed.Appx. 204, 207 (4th Cir. 2020).
Here, the undersigned agrees with Defendant that Plaintiff has not set out facts sufficient to move the possibility of any age-based discrimination from “possible” to “plausible,” as required. See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.”) (internal quotation marks and citation omitted). The vast majority of Plaintiff's 153-paragraph Complaint focuses on his Title VII religion-based allegations. See, e.g., Compl. ¶ 1 (“[Plaintiff] seeks relief from Defendant Tyson's pattern of discrimination against employees who request religious accommodations from Tyson's COVID-19 vaccination policy.”). In defending his ADEA claim against Defendant's Motion Plaintiff cites to the following allegations:
42. Plaintiff's company car, computer, phone, etc. soon were all picked up by Tyson, and his former job was quickly filled, so there was no possibility for him to return to his job after a 24 1/2-year career there.
45. Tyson not only forced the Plaintiff to take unpaid leave but, when Tyson returned to hiring, the company refused to offer him his former job-or any job that was in his pay grade or geographic area.
48. Tyson was aware of the Plaintiff's age (currently 68) and the fact that his mother has dementia, so he needed to stay in his geographic region.Compl. ¶¶ 42, 45, 48. In the ADEA cause of action itself, Plaintiff avers that he “believes that Tyson discriminated against him on the basis of age.” Id. ¶ 147. Plaintiff also again notes Tyson's awareness of age (68) and avers Tyson “refused to engage in any meaningful discussion about Plaintiff returning to work.” Id. ¶ 152. He summarily claims Tyson “discriminated against Plaintiff, refused to hire, and disparately applied its return-to-work policies based on Plaintiff's age.” Id. ¶ 153. Outside these naked assertions of age-based discrimination, however, Plaintiff has offered no facts in support. In fact, portions of Plaintiff's ADEA-based cause of action relate to Defendant's handling of Plaintiff's “religious accommodation request” and aver Tyson rehired workers who were “not vaccinated” with no mention of those workers age relative to Plaintiff. Id. ¶¶ 148, 151. Further, although Plaintiff has indicated his age he has not referred to the ages of any other employees, including the one who assumed his job duties when he was placed on leave. Nothing in Plaintiff's pleading offers factual support for his allegation that any adverse employment action was “because of his age.”
Plaintiff has failed to set forth sufficient facts to state a plausible claim for relief under the ADEA. Dismissal of this cause of action is appropriate. See Ward v. Anderson Greenville LLC, No. 6:23-CV-02152-DCC, 2024 WL 862240, at *2 (D.S.C. Feb. 29, 2024) (granting Rule 12(b)(6) dismissal of ADEA claim where plaintiff failed to provide facts that would “allow for a reasonable inference that [p]laintiff was discriminated against due to his age[,]” despite allegations that plaintiff was over 40 years of age and was replaced by someone younger).
E. Plaintiff's summary request for leave to amend
Plaintiff concludes his opposition with a short alternative argument that he should be permitted leave to amend to correct any pleading insufficiencies that may be identified by the court. Pl. Mem. 21-22. As Plaintiff's time period to amend as a matter of course passed long ago, any amendment would now require “the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Here, Defendant does not consent. See Reply 14-15 (arguing Plaintiff should not be permitted to amend his pleading, noting the lack of an appropriate motion and arguing any amendment would be futile).
Certainly, Rule 15 requires that the court “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, “a district court may deny leave to amend if the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile,” United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (internal quotation marks omitted). “Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards.” Kramer v. Omnicare ESC, LLC, 307 F.R.D. 459, 464 (D.S.C. 2015) (internal quotation marks omitted). “Therefore, the futility analysis under Rule 15(a) necessarily requires a preliminary assessment of the allegations of the proposed amendment in light of the substantive law on which the additional claims are based.” Id. Here, Plaintiff has not filed a motion to amend or attached a proposed Amended Complaint, and Plaintiff offers no cogent basis for any belief in any event that any such amended complaint could overcome the defects in his claims discussed above. On this record, the undersigned is of the opinion there is no appropriate basis on which to grant Plaintiff's summary request to amend.
IV. Conclusion and recommendation
As discussed more fully above, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 10, be denied as to a portion of Plaintiff's Title VII and SCHAL religious-discrimination claims and granted as to his remaining claims. If this Report and Recommendation is adopted, Plaintiff's case will proceed to discovery as to his Title VII and SCHAL claims of religious discrimination based on his beliefs concerning abortion and stem-cell research as related to COVID-19 vaccinations.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”