Opinion
3:23-cv-01231-SB
05-17-2024
AMY WELCH, an individual; ANJA PROSCHMANN, an individual; BRITTANY SHARPE, an individual; CASSIDY WILSON, an individual; DAYNE TAKARA, an individual; ANGELA VINTI, an individual; and ANGELA PETSU, an individual, Plaintiffs, v. OREGON HEALTH AND SCIENCE UNIVERSITY, an independent public corporation, Defendant.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Amy Welch (“Welch”), Anja Proschmann (“Proschmann”), Brittany Sharpe (“Sharpe”), Cassidy Wilson (“Wilson”), Dayne Takara (“Takara”), Angela Vinti (“Vinti”), and Angela Petsu (“Petsu”) (together, “Plaintiffs”) bring this action against their former employer, Defendant Oregon Health and Science University (“OHSU”). Plaintiffs assert that OHSU violated Title VII of the Civil Rights (“Title VII”) and Oregon Revised Statutes (“ORS”) § 659A.030 by failing to accommodate their requests for religious exemptions from OHSU's COVID-19 vaccine mandate, and subjecting Proschmann, Wilson, and Sharpe to a hostile work environment.
Before the Court is OHSU's motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). OHSU's motion is limited to whether (1) Sharpe, Wilson, Takara, and Vinti have plausibly alleged Title VII religious discrimination claims under a failure to accommodate theory, and (2) Proschmann, Sharpe, and Wilson have plausibly alleged Title VII religious discrimination claims under a hostile work environment theory. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and not all parties have consented to the jurisdiction of a magistrate judge pursuant to 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 OHSU's motion to dismiss.
Plaintiffs' complaint includes a general reference to Title VII's provisions and focuses on their failure to accommodate theory (see Compl. at 13-14, ECF No. 1), but Proschmann, Sharpe, and Wilson base their claims in part on allegations that OHSU “subjected [them] to a hostile work environment.” (Id. ¶¶ 14, 19, 23.) As a result, OHSU moves to dismiss Proschmann's, Sharpe's, and Wilson's hostile work environment claims, to the extent that they assert such claims. (See Def.'s Mot. Dismiss (“Def.'s Mot.”) at 6, 10-11, ECF No. 6; Def.'s Reply Supp. Mot. Dismiss (“Def.'s Reply”) at 2-3, 15-16, ECF No. 16, addressing Proschmann's, Sharpe's, and Wilson's hostile work environment allegations, and arguing that “to the extent Plaintiffs are alleging a hostile work environment claim based on religion under Title VII, those claims must be dismissed”; cf. Pls.' Resp. Def.'s Mot. Dismiss (“Pls.' Resp.”) at 4, ECF No. 10, arguing that “Plaintiffs have pleaded . . . a hostile work environment claim”). OHSU also represents that it is not currently moving to dismiss (1) Proschmann's, Petsu's, and Welch's claims for failure to accommodate their religions, or (2) Plaintiffs' state law claims because during conferral, Plaintiffs “agreed to voluntarily dismiss with prejudice” their claims under ORS § 659A.030. (Def.'s Mot. at 2 & n.1; Def.'s Reply at 2 n.1 & n.2.) Plaintiffs do not dispute that they agreed to dismiss with prejudice their state law claims. (See Pl.'s Resp. at 1-10, reflecting that Plaintiffs did not address or dispute OHSU's representation). In their reply, OHSU adds “the Court should enter an Order dismissing all seven Plaintiffs' ORS [§] 659A.030 claims.” (Def.'s Reply at 2 n.2.)
In reviewing a motion to dismiss under Rule 12(b)(6), a court “accept[s] the complaint's well-pleaded factual allegations as true, and constru[es] all inferences in the plaintiff's favor.” Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019) (quoting Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016)). The Court briefly summarizes Plaintiffs' factual allegations.
Plaintiffs are former OHSU employees. (Compl. ¶ 1.) During the COVID-19 pandemic, Plaintiffs worked in healthcare-related roles for OHSU's facilities in Oregon. (Id. ¶¶ 4, 7, 12, 17, 21, 25, 28, 31.) To the extent that Plaintiffs needed to help reduce the spread of COVID-19, Plaintiffs adhered to safety standards, “including the wearing of personal protective equipment (PPE), regular handwashing, social distancing, regular testing, and quarantining when necessary.” (Id. ¶ 4.)
Plaintiffs' roles involved varying degrees of in-person work. For example, with the exception of “two weeks training at OHSU when she was initially hired, [Welch, who lives in Mount Juliet, Tennessee,] has always worked entirely remotely, with no in-person interaction with patients or co-workers.” (Id. ¶ 7.) In her role as a certified trauma registry specialist, Welch was “part of a team of trauma registrars working for [OHSU], all of whom worked remotely.” (Id. ¶¶ 7-8.)
Proschmann worked as a registered nurse at Doernbecher Children's Hospital. (Id. ¶ 12.) OHSU canceled all of Proschmann's shifts at the beginning of the pandemic. (Id.) Proschmann, however, “worked remotely” after OHSU allowed her to “join[] the COVID labor pool.” (Id. ¶¶ 12-13.)
Sharpe served as a technician at OHSU's Oregon National Primate Research Center. (Id. ¶ 17.) Sharpe performed in-person work and spent time around co-workers. (Id. ¶¶ 17-19.) Similar to Sharpe, Wilson served as a laboratory animal technician at OHSU's Oregon National Primate Research Center. (Id. ¶ 21.) Wilson “worked primarily alone” but spent “almost all the time” in the “same building as the primates, . . . [and thus] was required to wear PPE, including face masks, gloves, and gowns.” (Id.) Wilson also wore PPE whenever “she had any contact with people.” (Id.)
Takara worked for about two years as a business intelligence analyst. (Id. ¶ 25.) Before OHSU terminated his employment, Takara “worked exclusively remotely from home for over a year and had been informed by management that he would not be returning to the office.” (Id. ¶¶ 25-26.)
Vinti worked for over eight years as a clinical pharmacist at OHSU's internal medicine clinic. (Id. ¶ 28.) In February 2020, near the beginning of the pandemic, Vinti “transitioned to working entirely remotely from home due to a medical condition,” and “[t]here was no plan to bring [Vinti] back to work at the clinic.” (Id.) As a result, Vinti had “virtually no in-person contact with patients or co-workers.” (Id.) Vinti, however, “infrequently conducted home visits for one patient[.]” (Id.) Vinti wore “appropriate PPE” when she conducted this patient's home visits. (Id.)
Petsu worked for approximately twenty years as a clinical laboratory specialist for OHSU. (Id. ¶ 31.) Petsu does not allege that she ever worked remotely or with patients. (See Id. ¶¶ 31-33.)
In the summer of 2021, OHSU informed its employees that unless they applied for and OHSU granted a religious or medical exemption, they would need to be fully vaccinated against COVID-19. (Id. ¶ 5.) Based on their Christian beliefs, Plaintiffs applied for religious exemptions in or around mid-September 2021. (See id. ¶¶ 9, 13, 18, 22, 26, 29, 32, alleging that Vinti, Sharpe, and Petsu applied for religious exemptions on September 12, September 17, and September 19, 2021, respectively). OHSU denied Plaintiffs' applications for religious exemptions, placed Plaintiffs on unpaid leave on or about October 19, 2021, and terminated Plaintiffs on or about December 2, 2021. (See id., alleging that OHSU placed Takara on unpaid leave on October 18, 2021, placed Proschmann, Sharpe, Wilson, Vinti, and Petsu on unpaid leave on October 19, 2021, and fired Welch, Proschmann, Sharpe, and Takara on December 2, 2021).
Plaintiffs received right-to-sue letters from the Equal Employment Opportunity Commission (“EEOC”) between July 10 and July 18, 2023. (Id. ¶¶ 11, 16, 20, 24, 27, 30, 33.) On August 23, 2023, Plaintiffs timely filed the present action against OHSU alleging religious discrimination.
“Under Title VII, a plaintiff must file suit within 90 days of receiving his right-to-sue letter from the [EEOC].” Lee v. United States, 859 Fed.Appx. 839, 839 (9th Cir. 2021) (citing 42 U.S.C. § 2000e-5(f)(1)).
LEGAL STANDARDS
I. THE PLAUSIBILITY STANDARD
“A [Rule] 12(b)(6) motion tests the adequacy of the complaint's allegations.” Glazer Cap. Mgmt., L.P. v. Forescout Techs., Inc., 63 F.4th 747, 763 (9th Cir. 2023) (citing FED. R. CIV. P. 12(b)(6)). “Except where a heightened pleading standard applies, a motion to dismiss under Rule 12(b)(6) . . . is analyzed using the plausibility pleading standards of Rule 8(a)[.]” Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002)); see also Swierkiewicz, 534 U.S. at 513 (noting that “Rule 9(b), for example, provides for greater particularity in all averments of fraud or mistake”).
The Supreme Court has “held that Rule 8 requires plaintiffs to include enough facts ‘to raise a right to relief above a speculative level,' and cautioned that ‘a formulaic recitation of the elements of a cause of action will not do.'” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Supreme Court later “provided further clarification of the necessary pleading standard[.]” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). Specifically, the Supreme Court in “Iqbal explained that ‘[t]wo working principles underlie' Twombly [.]” Id. (quoting Iqbal, 556 U.S. at 678-79). The first principle is that “courts need not accept as true legal conclusions or ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]'” Id. (quoting Iqbal, 556 U.S. at 678). The second principle is that “only a complaint that states a plausible claim for relief with well-pleaded facts demonstrating the pleader's entitlement to relief can survive a motion to dismiss.” Id. (citing Iqbal, 556 U.S. at 679).
“Following Iqbal and Twombly, [the Ninth Circuit has] attempted to reconcile the plausibility standard as set out in those rulings with the more lenient pleading standard the [Supreme] Court has also, at times, applied.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (citing Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014), which cited Swierkiewicz and Erickson Pardus, 551 U.S. 89 (2007)) (per curiam)). Despite “recognizing some tension among the [Supreme] Court's pleading-standards cases, [the Ninth Circuit has] settled on a two-step process for evaluating pleadings[.]” Id. That two-step process is as follows:
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.Id. (quoting Eclectic, 751 F.3d at 996, which quoted Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).
“In all cases, evaluating a complaint's plausibility is a ‘context-specific' endeavor that requires courts to ‘draw on . . . judicial experience and common sense.'” Levitt, 765 F.3d at 1135 (quoting Eclectic, 751 F.3d at 995-96). “Although a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof is improbable, plaintiffs must include sufficient factual enhancement to cross the line between possibility and plausibility.” Whitaker, 985 F.3d at 1176 (quoting Eclectic, 751 F.3d at 995-97). Plaintiffs can do so by alleging facts that are consistent with their theories of liability and tend to exclude an innocuous alternative explanation. See Eclectic, 751 F.3d at 997 (relying on “judicial experience and common sense,” and explaining that the plaintiffs alleged facts “consistent with both their theory of liability and [an] innocent alternative” and thus failed to meet “their burden to do ‘[s]omething more' to ‘render [their] allegations plausible within the meaning of Iqbal and Twombly'”) (citations omitted); Capp v. Cnty. of San Diego, 940 F.3d 1046, 1055 (9th Cir. 2019) (“More problematic to [the First Amendment retaliation] claim is [Twombly's] admonition that an allegation is not plausible where there is an ‘obvious alternative explanation' for alleged misconduct.”) (citation omitted); Branch v. Umphenour, 851 Fed.Appx. 732, 733-34 (9th Cir. 2021) (“An allegation that [defendants'] behavior was consistent with retaliation, offering no facts that tend to exclude a plausible and innocuous alternative explanation, is insufficient to overcome dismissal.”) (simplified).
II. THE PRIMA FACIE CASE
The Supreme Court's decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973) “sets out ‘the order and allocation of proof' in a Title VII case.” Austin v. Univ. of Or., 925 F.3d 1133, 1136 (9th Cir. 2019) (quoting McDonnell Douglas, 411 U.S. at 800). “In Swierkiewicz, the Supreme Court reiterated that ‘[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.'” Id. (quoting Swierkiewicz, 534 U.S. at 510).
The Supreme Court also stated that it “has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.” Id. at 1136-37 (quoting Swierkiewicz, 534 U.S. at 510).
In Austin, the Ninth Circuit explained that Swierkiewicz was a Title VII case and Austin was a Title IX case, but the Ninth Circuit “appl[ies] the principles of Title VII cases to Title IX claims.” Id. at 1136 n.3 (citations omitted). Thus, consistent with the Supreme Court's decision in Swierkiewicz, the Ninth Circuit held that the Rule 8(a) plausibility standard, not McDonnell Douglas, likewise applies when a court is reviewing a Rule 12(b)(6) motion to dismiss in a Title IX case:
These companion cases . . . raise an issue of first impression in this circuit-whether the McDonnell Douglas evidentiary presumption applies at the pleading stage in a Title IX case. Following the Supreme Court's explanation of Title VII's pleading requirements in Swierkiewicz . . ., we conclude that [Rule] 8(a), not McDonnell Douglas, applies at the motion to dismiss stage.... ....
Despite the parties' extensive briefing, we need look no further than the Supreme Court's guidance in Swierkiewicz to divine that Rule 8(a) provides the appropriate standard for reviewing a Rule 12(b)(6) motion to dismiss under Title IX. Swierkiewicz, 534 U.S. at 510-11. The Sixth Circuit is in accord.... ....
It is well established that, under Rule 8(a), a plaintiff need only provide “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. All factual allegations are accepted as true, and all reasonable inferences must be drawn in favor of the plaintiff. See Iqbal, 556 U.S. at 678 (noting that this standard is not a “probability requirement,” but “asks for more than a sheer possibility that a defendant has acted unlawfully”). The standard provides for liberal treatment of a plaintiff's complaint at the pleading stage.Id. at 1135-37 (footnote omitted).
The Ninth Circuit made similar observations in a recent published decision. In that case, the Ninth Circuit held that hostile work environment claims, such as the plaintiff's disability based harassment claim, are cognizable under the Rehabilitation Act (i.e., a statutory scheme that covers federally funded programs and is materially identical to the Americans with Disabilities Act (“ADA”), which Congress drafted using Title VII's language). See Mattioda v. Nelson, No. 22-15889, __ F. 4th __, 2024 WL 1710665, at *6-7 (9th Cir. Apr. 22, 2024). After doing so, the Ninth Circuit rejected the plaintiff's claim that “the district court should have applied the more liberal pleading standard articulated by Swierkiewicz . . . over the Iqbal/Twombly standard.” Id. at *7.
The Ninth Circuit noted, at the outset, that “[t]he Supreme Court decided Swierkiewicz before Iqbal and Twombly, [and held] that an employment-discrimination claim is not subject to a heightened pleading standard.” Id. (citing Swierkiewicz, 534 U.S. at 510-15). As the Ninth Circuit observed, however, “Twombly . . . explained that ‘Swierkiewicz did not change the law of pleading, but simply re-emphasized that the use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules' structure of liberal pleading requirements.” Id. (ellipses omitted) (quoting Twombly, 550 U.S. at 570). The Ninth Circuit also explained that it has reconciled any differences between the pleading standards relied upon in Swierkiewicz and Twombly:
To the extent that any differences remain between the pleading standards relied upon in Swierkiewicz and Twombly, in reconciling these decisions, we have explained that a complaint must contain sufficient factual allegations that plausibly suggest entitlement to relief. Starr, 652 F.3d 1215-16; see also Austin, 925 F.3d at 1136-38 (“In Swierkiewicz, the Supreme Court reiterated that the prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.”). The district court did not employ a heightened pleading
standard as prohibited by Swierkiewicz, see Austin, 925 F.3d at 1136-38, nor did it err in applying the Iqbal/Twombly standard.Id.
Although the prima facie case is an evidentiary standard, not a pleading requirement, the Ninth Circuit has recognized that the elements of the prima facie case remain relevant to a court's assessment of whether the plaintiff's factual allegations plausibly suggest entitlement to relief. For example, in Bolden-Hardge v. Office of California State Controller, 63 F.4th 1215 (9th Cir. 2023), a case discussed in greater detail below, the Ninth Circuit addressed what a plaintiff must allege “[t]o plead a prima facie case of failure to accommodate religion under Title VII,” and held that the plaintiff “stated [a failure to accommodate religion] claim[] under Title VII.” Id. at 1218, 1222-24. After concluding that the plaintiff “adequately alleged” the first element of her prima facie case, the Ninth Circuit added that the defendant did “not otherwise contest the sufficiency of [the plaintiff's] prima facie case.” Id. at 1222-24; see also Benton-Flores v. Santa Barbara Unified Sch. Dist., No. 22-56213, 2024 WL 813467, at *1 (9th Cir. Feb. 27, 2024) (affirming the dismissal of the plaintiff's hostile work environment, discrimination, and retaliation claims under Title VII, relying on Iqbal and the facial plausibility standard, and citing the “elements of a prima facie case for Title VII discrimination, hostile work environment, and retaliation claims”) (citation omitted); Blackman-Baham v. Nielsen, 730 Fed.Appx. 498, 499 (9th Cir. 2018) (same).
Similarly, in Sheppard v. David Evans & Associates, 694 F.3d 1045 (9th Cir. 2012), the Ninth Circuit applied the Twombly/Iqbal standard in assessing whether the plaintiff plausibly alleged a claim for age discrimination. Id. at 1048-49. After describing the McDonnell Douglas burden-shifting framework and elements necessary “[t]o establish a prima facie case of [age] discrimination,” the Ninth Circuit held that the plaintiff's “amended complaint allege[d] a ‘plausible' prima facie case of age discrimination.” Id. at 1049-50. The Ninth Circuit stated that “[a] plaintiff in an [age discrimination] case is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss[,]” but “in situations such as this, where a plaintiff pleads a plausible prima facie case of discrimination, the plaintiff's complaint will be sufficient to survive a motion to dismiss.” Id. at 1050 n.2 (citing Swierkiewicz, 534 U.S. at 50811); see also Lyons v. Alameda Health Sys., No. 20-cv-08088, 2021 WL 1312773, at * n.3 (N.D. Cal. Apr. 8, 2021) (“Though not required, ‘where a plaintiff pleads a plausible prima facie case of discrimination, the plaintiff's complaint will be sufficient to survive a motion to dismiss.' And a court may ‘look to those elements to analyze a motion to dismiss, so as to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'” (quoting Sheppard, 694 F.3d at 1050 n.2 and Achal v. Gate Gourmet, Inc., 114 F.Supp.3d 781, 796-97 (N.D. Cal. 2015))).
Sister circuits have also addressed these matters in the Title VII context. See Ingram v. Ark. Dep't of Corr., 91 F.4th 924, 927 (8th Cir. 2024) (“At the pleading stage in the [Title VII] discrimination context, it is unnecessary to plead enough facts to establish a prima facie case.... Nevertheless, the elements of a prima facie case remain relevant in determining the plausibility standard as the elements may be used as a prism to shed light upon the plausibility of the claim.”) (simplified); see also Savel v. Metro Health Sys., 96 F.4th 932, 942-43 (6th Cir. 2024) (noting that the plaintiffs alleged that the defendant “failed to accommodate their religious beliefs by blanket-denying their vaccine exemption requests,” and stating that the Sixth Circuit has “at times strayed from the Swierkiewicz rule,” but a “plaintiff does not have to allege specific facts establishing a prima facie case of discrimination in their complaint”) (citations omitted); Mandala v. NTT Data, Inc., 975 F.3d 202, 209 (2d Cir. 2020) (stating that “although a [Title VII] plaintiff need not plead a prima facie case, she must at least set forth enough factual allegations to plausibly support each of the three basic elements of a disparate impact claim”) (citation omitted).
DISCUSSION
The parties dispute whether Sharpe, Wilson, Takara, and Vinti have plausibly alleged Title VII religious discrimination claims under a failure to accommodate theory, and whether Proschmann, Sharpe, and Wilson have plausibly alleged Title VII religious discrimination claims under a hostile work environment theory. The Court addresses Plaintiffs' Title VII theories in turn.
I. FAILURE TO ACCOMMODATE
A. Applicable Law
1. Title VII's Provisions
Title VII “prohibits two categories of employment practices.” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771 (2015). Specifically, Title VII makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
“These two proscriptions[] [are] often referred to as [Title VII's] ‘disparate treatment' (or ‘intentional discrimination') provision and [Title VII's] ‘disparate impact' provision[.]” Abercrombie, 575 U.S. at 771. As relevant here, Title VII defines “religion” as including “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . [the] employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business.” 42 U.S.C. § 2000e(j).
2. Undue Hardship
Sections 2000e(a)(1) and 2000e(j), taken together, demonstrate that Title VII “require[s] employers to accommodate [an employee's] religious beliefs unless doing so would impose an undue hardship.” Bolden-Hardge, 63 F.4th at 1222 (citing 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(j)). Notably, however, “[u]ndue hardship is an affirmative defense [in a Title VII case], 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 material.'” Id. at 1224-25 (citing Tabura v. Kellogg USA, 880 F.3d 544, 557 (10th Cir. 2018) and quoting ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014)); see also ASARCO, 765 F.3d at 1004 (“If . . . an asserted defense raises disputed issues of fact, dismissal under Rule 12(b)(6) is improper.” (citing Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam))).
Like all affirmative defenses, an employer bears the burden of proof on an undue hardship defense. See Monge v. Maya Mags., Inc., 688 F.3d 1164, 1170 (9th Cir. 2012) (stating that “[a]s with all affirmative defenses, . . . the defendant b[ore] the burden of proof” on its defense); see also Abercrombie, 575 U.S. at 772 n.2 (stating that § 2000e(j)'s clause beginning with “unless” serves “no function except to place upon the employer the burden of establishing an ‘undue hardship' defense”). Thus, a plaintiff is not required to allege facts establishing the absence of undue hardship. See Trusov v. Or. Health & Sci. Univ., No. 3:23-cv-00077-SI, 2023 WL 6147251, at *6 (D. Or. Sept. 20, 2023) (“[A] court need not credit a plaintiff's legal conclusions that are couched as factual allegations.... Thus, the Court may properly disregard Plaintiff's conclusory assertion that OHSU could have accommodated her religious beliefs without incurring undue hardship. Nevertheless, 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.”); Brown v. Nw. Permanente, P.C., No. 3:22-cv-00986-SI, 2023 WL 6147178, at *4 (D. Or. Sept. 20, 2023) (same).
B. Analysis
As discussed, the parties dispute whether Sharpe, Wilson, Takara, and Vinti have plausibly alleged Title VII religious discrimination claims under a failure to accommodate theory. Before turning to the parties' arguments, the Court briefly describes Plaintiffs' failure to accommodate theory and Supreme Court and Ninth Circuit precedent addressing the Title VII provision at issue.
1. Plaintiffs' Failure to Accommodate Theory
Plaintiffs alleged that OHSU violated Title VII by failing to accommodate Plaintiffs' requests for religious exemptions from OHSU's COVID-19 vaccine mandate and instead terminating Plaintiffs. (Compl. ¶¶ 1, 47-48.) The Supreme Court has “sort[ed] religious accommodation claims under the disparate treatment umbrella.” See Savel, 96 F.4th at 943 n.4 (stating that “[t]he Supreme Court describes the religious discrimination claims available under Title VII . . . by creating only two categories-disparate treatment and disparate impact-and sorting religious accommodation claims under the disparate treatment umbrella” (citing Abercrombie, 575 U.S. at 771-73)); see also Abercrombie, 575 U.S. at 772 n.2 (noting that an alleged violation of the disparate treatment provision (§ 2000e-2(a)(1)), i.e., the alleged “failure to hire ‘because of' the plaintiff's ‘religious practice,'” is “synonymous with refusing to accommodate the religious practice” and “[t]o accuse the employer of the one is to accuse him of the other”).
2. Title VII's Disparate Treatment Provision
Title VII's disparate treatment provision makes it unlawful for an employer to: (1) “discharge any” employee (2) “because of” (3) “such individual's . . . religion” (which includes his religious beliefs). See Abercrombie, 575 U.S. at 772, 775 (“The disparate-treatment provision forbids employers to: (1) ‘fail . . . to hire' an applicant (2) ‘because of' (3) ‘such individual's . . . religion' (which includes his religious practice).... [Title VII] affirmatively obligat[es] employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual's' ‘religious observance and practice[, as well as belief].'” (quoting 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(j))).
The parties agree that OHSU discharged Plaintiffs. (See Def.'s Mot. at 3, so stating; Compl. ¶ 48, alleging that OHSU “unlawful[ly] terminat[ed]” Plaintiffs). The parties disagree about, among other things, whether Plaintiffs have plausibly alleged that OHSU discharged Plaintiffs (2) “because of” (3) their “religious beliefs.” Cf. Abercrombie, 575 U.S. at 772 (“[Defendant] (1) failed to hire [the applicant,] Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf's wearing of a headscarf is (3) a ‘religious practice.' All that remains is whether she was not hired (2) ‘because of' her religious practice.”).
Typically, the oft-used antidiscrimination term “‘because of' . . . imports, at a minimum, the traditional standard of but-for causation.” Abercrombie, 575 U.S. at 772 (citation omitted). Title VII, however, “relaxes this standard . . . to prohibit even making a protected characteristic a ‘motivating factor' in an employment decision.” Id. at 573 (quoting 42 U.S.C. § 2000e-2(m)); see also 42 U.S.C. § 2000e-2(m) (stating that “[e]xcept as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that . . . religion . . . was a motivating factor for any employment practice, even though other factors also motivated the practice”). Under § 2000e-2(a)(1), “‘[b]ecause of' . . . links the forbidden consideration to each of the verbs preceding it; an individual's actual religious practice[, observance, or belief] may not be a motivating factor in failing to hire, in refusing to hire, [in discharging,] and so on.” Abercrombie, 575 U.S. at 773; see also 42 U.S.C. § 2000e(j) (defining “religion” as including “all aspects of religious observance and practice, as well as belief”).
Unlike some antidiscrimination statutes, “§ 2000e-2(a)(1) does not impose a knowledge requirement.” Abercrombie, 575 U.S. at 773-74. Rather, the disparate treatment “provision prohibits certain motives, regardless of the state of the actor's knowledge.” Id. As a result, “the rule for disparate-treatment claims based on a failure to accommodate a religious practice[, observance, or belief] is straightforward: An employer may not make an applicant's [or an employee's] religious practice[, observance, or belief], confirmed or otherwise, a factor in employment decisions.” Id.; see also Grabowski v. Ariz Bd. of Regents, 69 F.4th 1110, 1118 (9th Cir. 2023) (“Because Congress did not add a knowledge requirement to the intentional-discrimination provisions in Title VII, [a] plaintiff ha[s] to prove only that her employer was motivated by the perceived need for a religious accommodation.”) (citations omitted); Mendoza v. The Roman Cath. Archbishop of L.A., 824 F.3d 1148, 1149 (9th Cir. 2016) (stating that “[k]nowledge is not a requirement of a Title VII claim” and that “[a]n employer may not make [a plaintiff's] religious practice, confirmed or otherwise, a factor in employment decisions”) (simplified).
Although § 2000e-2(a)(1) does not impose a knowledge requirement, the Supreme Court has stated that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice-i.e., that [the employer] cannot discriminate because of a religious practice unless he knows or suspects it to be a religious practice.” Rosser v. Ferndale Sch. Dist. No. 502, No. 2:23-cv-01024, 2024 WL 1345187, at *3 (W.D. Wash. Mar. 29, 2024) (quoting Abercrombie, 575 U.S. at 774 n.3). Put another way, it is arguable that the motive requirement is not met unless the employer at least suspects that the belief in question (i.e., an aspect of “religion”) is a religious belief. See 42 U.S.C. § 2000e(j) (defining “religion” as including “all aspects of religious observance and practice, as well as belief”).
3. Ninth Circuit Precedent
In the recent Bolden-Hardge decision, the Ninth Circuit reviewed the district court's dismissal of the plaintiff's Title VII and California Fair Employment and Housing Act (“FEHA”) claims “for lack of subject matter jurisdiction and for failure to state a claim.” 63 F.4th at 121820. After explaining that it had “jurisdiction to consider the merits of [the plaintiff's Title VII and FEHA] claims,” and “review[ed] de novo an order granting a motion to dismiss for failure to state a claim, accepting the complaint's well-pleaded factual allegations as true, and construing all inferences in the plaintiff's favor,” the Ninth Circuit held that the district court erred because the plaintiff “ha[d] stated claims under Title VII and the [FEHA].” Id. at 1218, 1222-28 (simplified).
The Ninth Circuit's analysis focused initially on the plaintiff's Title VII and FEHA claims for failure to accommodate her religion. Id. at 1222-24. The Ninth Circuit observed that both statutes “forbid an employer from denying a job to an applicant because of her religion,” and “require employers to accommodate job applicants' religious beliefs unless doing so would impose an undue hardship.” Id. at 1222 (citing, inter alia, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(j)). The Ninth Circuit explained that “[c]laims under Title VII and FEHA for failure to accommodate religion are accordingly analyzed under a burden-shifting framework.” Id. (citing, inter alia, Heller v. EBB Auto Co., 8 F.3d 1433, 1440 (9th Cir. 1993) (Title VII)). The Ninth Circuit further explained that under this framework, “the employee must plead a prima facie case of failure to accommodate religion,” and “if the employee is successful, the employer can show that it was nonetheless justified in not accommodating the employee's religious beliefs or practices.” Id. (citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830 (9th Cir. 1999)).
Consistent with this understanding, the Ninth Circuit turned to what a plaintiff must allege “[t]o plead a prima facie case of failure to accommodate religion under Title VII and FEHA[.]” Id. The Ninth Circuit explained that “[t]o plead [such] a prima facie case . . ., a plaintiff must allege, among other things, that she holds ‘a bona fide religious belief' that conflicts with an employment requirement.” Id. (quoting Heller, 8 F.3d at 1438 (Title VII)). The parties disputed whether the plaintiff had “adequately pleaded a conflict between her job requirements and religious belief,” but the Ninth Circuit held that the plaintiff had “adequately alleged that [an employment requirement] pose[d] a conflict with her religious beliefs.” Id. at 1222-24.
“To establish a prima facie case for religious discrimination under a failure-to-accommodate theory, an employee must [also] show . . . [that] she informed her employer of the belief and conflict[,] and . . . the employer discharged, threatened, or otherwise subjected her to an adverse employment action because of h[er] inability to fulfill the job requirement.” Keene v. City & Cnty. of S.F., No. 22-16567, 2023 WL 3451687, at * 2 (9th Cir. May 15, 2023) (brackets omitted) (quoting Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006)).
In support of its holding, the Ninth Circuit explained that “[t]he Supreme Court has, albeit in the free exercise context, cautioned against second-guessing the reasonableness of an individual's assertion that a requirement burdens her religious beliefs, emphasizing that a court's ‘narrow function . . . in this context is to determine whether the line drawn reflects an honest conviction.'” Id. at 1223 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014)). The Ninth Circuit further explained that although “[t]his principle does not mean that courts must take plaintiffs' conclusory assertions of violations of their religious beliefs at face value[,] . . . [a Title VII plaintiff's] burden to allege a conflict with religious beliefs is fairly minimal.” Id. (citation omitted) (citing Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981)).
Given that the defendant did “not otherwise contest the sufficiency of [the plaintiff's] prima facie case,” the Ninth Circuit explained that its next inquiry was “whether the [defendant could] rebut [the plaintiff's] prima facie case by demonstrating that it was justified in not accommodating her religious beliefs.” Id. at 1224. On this issue, the Ninth Circuit reiterated that “[o]nce an employee establishes a prima facie case of failure to accommodate religion, the burden shifts to the employer to show ‘either 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. (quoting Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998)). The Ninth Circuit added that “[u]ndue hardship is an affirmative defense . . ., 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.'” Id. at 1224-25 (citing Tabura, 880 F.3d at 557 and quoting ASARCO, 765 F.3d at 1004).
Thereafter, the Ninth Circuit held that because an undue hardship defense was “not obvious from the face of [the plaintiff's] [c]complaint,” it could not “consider the [defendant's] undue hardship defense at this stage in the proceedings[,]” i.e., the motion to dismiss/pleading stage. Id. at 1226-27. For all of these reasons, the Ninth Circuit reversed the district court's dismissal of the plaintiff's Title VII and FEHA claims for failure to accommodate her religion. Id. at 1226-28.
4. Disposition
Based on the allegations in the complaint and applications for religious exemptions incorporated therein by reference, the Court concludes that Sharpe, Wilson, Takara, and Vinti have plausibly alleged Title VII religious discrimination claims under a failure to accommodate theory. The Court therefore recommends that the district judge deny OHSU's motion to dismiss on this ground.
a. Plaintiffs' Complaint
In the section of the complaint devoted to Sharpe's Title VII claim, Sharpe alleges that she requested a religious exemption from OHSU's COVID-19 vaccine mandate because she has “deeply held Christian beliefs that conflicted with taking the COVID-19 vaccine[.]” (See Compl. ¶¶ 17-20.)
Wilson alleges that she is “a Christian . . . [but] not part of any denomination,” she was “unable to get any of the available COVID-19 vaccines” because of her “sincerely held and devout religious beliefs,” and OHSU denied all four of her “applications for a religious exemption to the vaccine [mandate.]” (Id. ¶ 22.) Wilson also alleges that she “did not become as involved in her faith until late 2020, when she was saved by God, and she believes in her relationship to God, and listening to what God tells her and following [God's] word, rather than following a specific religion.” (Id.) Furthermore, Wilson alleges that “[s]he was baptized on May 23, 2021,” and that after “being saved [by God], her views on all vaccines and medical procedures have changed, [which is why] she has not had any vaccines since her last flu vaccine in 2020.” (Id.)
Takara likewise alleges that he has “strong Christian religious beliefs that prevented him from receiving the COVID-19 vaccine,” OHSU denied his application for a religious exemption, and he was “shocked and distressed that his religious beliefs were not accepted.” (Id. ¶ 26.) Takara also alleges that he provided OHSU with “the required [exemption application] form along with a letter from his pastor that confirmed that [his] religious conviction was supported by his church.” (Id.) Takara further alleges that he had “worked exclusively from home for over a year” as a business intelligence analyst and when a manager asked if “he would return to work, [he] . . . told him that his religious belief was sincerely held, and he would not get vaccinated.” (Id. ¶¶ 25, 27.)
Vinti alleges that she applied for a religious exemption “due to her strong Christian beliefs,” and OHSU denied her application. (Id. ¶ 29.) Vinti adds that she had “lived her faith in the workplace for the duration of her career, helping and supporting co-workers and patients,” she “did not want to lose her job but most importantly . . . did not want to compromise her relationship with God,” and she was “appalled that she was discriminated against for her religious beliefs and believes [OHSU's actions were] in stark contrast to [its] creed of ‘Respect for All.'” (Id.)
In support of their claims for relief, Plaintiffs generally allege that they are “members of a protected class on the basis of their devout and sincerely held religious beliefs in the tenants of Christianity,” that their “sincerely held religious beliefs conflicted with [OHSU's] COVID-19 vaccine mandate,” and that OHSU failed to “accommodate [their] religious beliefs.” (Compl. ¶¶ 45-47.)
b. The Parties' Arguments
The parties present arguments regarding the elements of a prima facie case of failure to accommodate religion under Title VII. (See Def.'s Mot. at 6-9; Pl.'s Resp. at 4-7.) Those three elements are: (1) the plaintiff “holds ‘a bona fide religious belief' that conflicts with an employment requirement,” (2) the plaintiff “informed his employer of the belief and conflict,” and (3) the defendant “threatened [the plaintiff] with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements.” Bolden-Hardge, 63 F.4th at 1222 (focusing only on the first element (quoting Heller, 8 F.3d at 1438)); Heller, 8 F.3d at 1438 (describing all three elements of a prima facie case); Keene, 2023 WL 3451687, at *1 (describing the same elements as Heller (citing Berry, 447 F.3d at 655)).
OHSU argues that Sharpe's, Wilson's, Takara's, and Vinti's failure to accommodate claims are implausible because they do “not plead facts showing that the beliefs that allegedly precluded [them] from receiving the COVID-19 vaccine were bona fide religious beliefs, the practice of which conflicts with an employment duty.” (Def.'s Mot. at 7.) In OHSU's view, Sharpe, Wilson, Takara, and Vinti allege “nothing more than mere conclusory statements,” not “facts demonstrating that their objection to OHSU's vaccination policy stemmed from a bona religious belief.” (Id.) OHSU adds that Sharpe's, Wilson's, Takara's, and Vinti's “conclusory statements are little more than a ‘formulaic recitation' of the elements of a Title VII religious accommodation claim.” (Id. at 6-7, quoting Twombly, 550 U.S. at 555, and citing Compl. ¶¶ 18, 22, 26, 29, 40, 46.)
Plaintiffs respond that contrary to OHSU's arguments, “Title VII does not require a plaintiff to demonstrate an elaborate and objectively rational connection between her belief system and the conflict with her workplace requirements,” as an employee's “assertion of a sincere religious belief should be generally accepted.” (Pls.' Resp. at 4-5, citing, inter alia, Keene, 2023 WL 3451687, at *5-6 and San Diego Unified Sch. Dist., 19 F.4th at 1176 n.3.) Plaintiffs also argue that “Title VII does not require that an employee provide extensive notice; [rather, Title VII] requires ‘only enough information about an employee's religious needs to permit the employer to understand the existence of a conflict between the employee's religious [beliefs] and the employer's job requirements.'” (Id. at 4-5, quoting Heller, 8 F.3d at 1439.) Plaintiffs also emphasize that the Ninth Circuit has stated that “[a]ny greater notice requirement would [impermissibly] permit an employer to delve into the religious [beliefs] of an employee in order to determine whether religion mandates the employee's adherence.” (Id., quoting Heller, 8 F.3d at 1439.)
In addition to these arguments, Plaintiffs argue that even if the Court were to agree with OHSU that Plaintiffs' complaint is lacking in certain respects, the Court may consider the religious exemption requests that Plaintiffs submitted to OHSU under the incorporation by reference doctrine. (Pls.' Resp. at 6, citing Decl. Caroline Janzen Supp. Pls.' Resp. Defs.' Mot. Dismiss (“Janzen Decl.”) Exs. 1-5, ECF No. 11.) Plaintiffs maintain that their religious exemption requests demonstrate that they “gave OHSU an extensive and heartfelt explanation [as to] why [they] . . . could not reconcile their religious beliefs with taking the COVID-19 vaccine.” (Id.)
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)).
Plaintiffs' claims against OHSU for failure to accommodate religions refer to and rely on the paperwork that they submitted in support of their requests for religious exemptions and their reasons for seeking exemptions. (See Compl. ¶¶ 9, 13, 18, 22, 26, 29, 32, 45-49.) Courts have considered religious exemption forms under the incorporation by reference doctrine. See Bartholomew v. Washington, No. 3:23-cv-05209, __ F.Supp.3d __, 2024 WL 1426308, at *2 (W.D. Wash. Mar. 26, 2024) (“Plaintiff extensively referenced the religious accommodation notice . . . and religious accommodation form . . . in his complaint and that the documents are therefore incorporated by reference.... The Court may therefore properly consider the documents without converting Defendants' motion into one for summary judgment.”); Medlin v. PeaceHealth, No. 6:23-cv-00012-AA, 2024 WL 712692, at *1 (D. Or. Feb., 21, 2024) (“On this record, and in the absence of any objection by Plaintiff, the Court concludes that Plaintiff's religious exception request is a valid subject for incorporation by reference. [It] . . . will therefore be considered in resolving the Motion to Dismiss.”); see also Gamon v. Shriners Hosps. for Children, No. 3:23-cv-00216-IM, 2024 WL 641715, at *1 n.1 (D. Or. Feb. 15, 2024) (“The background facts come from the First Amended Complaint and the vaccine exemption form Plaintiff attached to the Complaint. The latter document is incorporated by reference into the Complaint.”).
Consistent with these authorities, the Court concludes that it may consider Plaintiffs' religious exemption requests (i.e., the exhibits attached to the Janzen declaration), and notes that OHSU does not object to the Court's consideration of the requests. (See Def.'s Reply at 2, 4, 9, 13-14, acknowledging that “Plaintiffs have now elected to incorporate by reference the actual religious exception requests they submitted to [OHSU],” quoting and citing the Janzen declaration exhibits, and challenging the justifications set forth in Plaintiffs' religious exemption requests).
In support of their religious exemption requests, Plaintiffs provided these explanations to OHSU:
• Sharpe explained that “many of these vaccines have been cultured in aborted fetal tissue and carry the DNA of a male aborted baby,” which was “appalling to [her] as a believer” in “Jesus Christ as Lord and Savior . . . [and] the tenets of the Holy Scripture” and “member of the Body of Christ.” (Janzen Decl. Ex. 1 at 5-6.)
• Vinti stated that she was a “baptized Catholic seeking a religious exception” and cited “information . . . explain[ing] how the Catholic Church's teachings may lead individual Catholics, like [Vinti], to decline certain vaccines,” such as (1) under “authoritative Catholic teachings[,] . . . [t]here is a moral duty to refuse the use of medical products, including certain vaccines, that are created using human cell[] lines derived from abortion,” and (2) “[a]n individual Catholic may invoke Church teaching to refuse a vaccine that use abortion-
derived cell lines at any stage of the creation or production of the vaccine.” (Id. Ex. 2 at 3-4.)
• Takara provided a letter from his pastor and statement that his church's “Christian religion protects the liberty of individuals and families to refuse any medical procedure or product on the basis of sincerely held concerns for . . . potential involvement in fetal lines whether in development or testing.” (Id. Ex. 4 at 2-3.)
• Wilson explained that (1) she is “a baptized, born again Christian, and based on the Bible that [she] read[s] and use[s] to guide [her] life, [she is] to rely on and put [her] trust in [her] God for protection and healing, which is the foundation of [her] faith,” (2) if she “were to get th[e] vaccine, [she] would be relying on something man-made and not God, which would mean [that she did not] trust [God] or have faith and that would go against [her] faith and the Bible that [she] read[s], which says ‘to trust in the Lord with all things' . . . [and] ‘do you know that your body is a temple of the Holy Spirit within you, whom you have from God? You are not your own, for you were bought with a price. So glorify God in your body,'” (3) “[g]etting th[e] vaccine, not knowing how it may affect [her] mentally and physically either now or in the future, would go against the Bible and what God tells [her],” and (4) she had “already contracted Covid in the past, [and] thus ha[d] already built up natural broad-spectrum antibodies with the immune system that God gave [her, and she would be] relying on that and God to protect [her] instead of something man-made.” (Id. Ex. 5 at 1.)
c. Recommendation
Contrary to OHSU's arguments (see Def.'s Reply at 4-14), the Court finds that Sharpe, Vinti, and Takara have adequately pled the first element of their Title VII claim. See Bolden-Hardge, 63 F.4th at 1222 (noting that a plaintiff can satisfy the first element by plausibly alleging that she holds a bona fide religious belief that conflicts with an employment requirement).
This Court has previously recognized that in a vaccine mandate case, a plaintiff can state a bona fide religious belief that conflicts with an employment requirement by alleging Christian-based beliefs in the sanctity of life and opposition to taking a vaccine connected to, or derived even remotely from, aborted fetal cell lines. See Stephens v. Legacy-GoHealth Urgent Care, No. 3:23-cv-00206-SB, 2023 WL 7612395, at *7-9 (D. Or. Oct. 23, 2023) (citing Keene, 2023 WL 3451687, at *1-2 and Kather v. Asante Health Sys., No. 22-1842-MC, 2023 WL 4865533, at *4-5 (D. Or. July 28, 2023)), findings and recommendation adopted in full and clarified in part, 2023 WL 7623865, at *1 (D. Or. Nov. 14, 2023); Trinh v. Shriners Hosps. for Children, No. 3:22-cv-01999-SB, 2023 WL 7525228, at *10-11 (D. Or. Oct. 23, 2023) (citing Keene, 2023 WL 3451687, at *1-2 and Kather, 2023 WL 4865533, at *4)), findings and recommendation adopted, 2023 WL 7521441, at *1 (D. Or Nov. 13, 2023); see also Kather, 2023 WL 4865533, at *4-5 (holding that the plaintiff “adequately alleged a sincerely held religious belief, the practice of which conflicts with receiving a COVID-19 vaccine,” and noting that the plaintiff relied on her “‘Christianity' and resistance to receiving a vaccine developed with fetal cell lines”). Opinions of other judges in this district are in accord. See, e.g., Schaferv. Legacy Health, No. 3:23-cv-01543-HZ, 2024 WL 1932544, at *3-4 (D. Or. May 2, 2024) (discussing anti-abortion beliefs and noting that in Kather, the court “concluded that one plaintiff's ‘self-identified Christianity and resistance to receiving a vaccine developed with fetal cell lines [was a] reasonably inferred religious conflict'”) (citations omitted).
Notably, OHSU cited Stephens in withdrawing its motion to dismiss Welch's claim for failure to accommodate her religion. (See Def.'s Reply at 2 n.1, acknowledging that in Stephens, this Court noted that “alleging Christian-based beliefs in the sanctity of life and opposition to taking a vaccine connected to or derived from fetal cell lines may be sufficient for a claim to proceed at the motion to dismiss stage,” and therefore declining to “pursue dismissal” of Welch's claim at the pleading stage because she “included statements to this effect in the religious exception request she submitted”). OHSU analyzes the remaining exemption requests at too granular a level. (See, e.g., Def.'s Reply at 4-9, focusing on isolated paragraphs and language before concluding with a discussion of Sharpe's statements about “aborted fetal tissue” and an “aborted baby”); cf. Shafer, 2024 WL 1932544, at *4 (noting that the defendant “pick[ed] apart [the] [p]laintiff's request, emphasizing specific subparts that do not, in isolation, articulate a bona fide religious conflict”).
A plaintiff's religious exemption request need not be consistent or rational and may be based in part on beliefs that are not religious in nature. See Keene, 2023 WL 3451687, at *1 (stating that “[a] 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,” and that courts “may not . . . question the legitimacy of [a plaintiff's] religious beliefs regarding COVID-19 vaccinations” (quoting San Diego Unified Sch. Dist., 19 F.4th at 1176 n.3)); Stephens, 2023 WL 7612395, at *8 (noting that a plaintiff can state a claim “[e]ven if some of [her] statements [a]re not religious” in nature); Shafer, 2024 WL 1932544, at *4 (stating that the court could “reasonably conclude from [the] [p]laintiff's exception request that [the] [p]laintiff informed [the] [d]efendant that her Catholic faith and associated anti-abortion beliefs conflict with [the] vaccine mandate,” and explaining that the plaintiff's request's “additional references to following her conscience, therapeutic proportionality, and moral duty [did] not change [the court's] analysis”); Kather, 2023 WL 4865533, at *3 (noting that a plaintiff's “overlapping secular and religious objections do not place a requested accommodation outside the scope of Title VII”).
Given Sharpe's beliefs on abortion, the Court declines to isolate other statements for the purpose of evaluating whether they are or are “not protected religious beliefs.” (See Def.'s Reply at 4, 6-7; Janzen Decl. Ex. 1 at 5-6, reflecting that Sharpe explained her belief that “many of these vaccines have been cultured in aborted fetal tissue and carry the DNA of a male aborted baby,” which was “appalling to [her] as a believer” in “Jesus Christ as Lord and Savior . . . [and] the tenets of the Holy Scripture” and “member of the Body of Christ”). The Court finds unpersuasive OHSU's arguments that Sharpe provided only a “single, vague reference to ‘aborted fetal tissue,'” did “not tie [such] statements to any particular belief or practice with receiving the vaccine,” or allege “a conflict with receiving COVID-19 vaccines because they are ‘cultured in aborted fetal tissue.'” (Def.'s Reply at 8.) The Court must construe all inferences in Plaintiffs' favor. See Bolden-Hardge, 63 F.4th at 1220 (recognizing that when evaluating a Rule 12(b)(6) motion, a court must “accept[] the complaint's well-pleaded factual allegations as true, and constru[e] all inferences in the plaintiff's favor”). When so construed, Sharpe's statements plausibly suggest that she held a bona fide religious belief that conflicted with OHSU's vaccine mandate.
For many of the same reasons, the Court finds that Vinti and Takara have adequately pled the first element of their Title VII claim. (See Janzen Decl. Ex. 2 at 3-4, reflecting that Vinti represented that she was a “baptized Catholic seeking a religious exception” and cited “information . . . explain[ing] how the Catholic Church's teachings may lead individual Catholics, like [Vinti], to decline certain vaccines,” such as under “authoritative Catholic teachings[,] . . . [t]here is a moral duty to refuse the use of medical products, including certain vaccines, that are created using human cell[] lines derived from abortion,” and “[a]n individual Catholic may invoke Church teaching to refuse a vaccine that use abortion-derived cell lines at any stage of the creation or production of the vaccine”; id. Ex. 4 at 2-3, showing that Takara provided a letter from his pastor and statement that his church's “Christian religion protects the liberty of individuals and families to refuse any medical procedure or product on the basis of sincerely held concerns for . . . potential involvement in fetal lines whether in development or testing”).
Unlike Sharpe, Takara, and Vinti, the religious exemption request that Wilson submitted to OHSU did not explicitly invoke religious beliefs related to abortion. Instead, Wilson cited beliefs about her faith and God, which she tied to her readings and interpretations of her Bible: (1) she is “a baptized, born again Christian, and based on the Bible that [she] read[s] and use[s] to guide [her] life, [she is] to rely on and put [her] trust in [her] God for protection and healing, which is the foundation of [her] faith,” (2) if she “were to get th[e] vaccine, [she] would be relying on something man-made and not God, which would mean [that she did not] trust [God] or have faith and that would go against [her] faith and the Bible that [she] read[s], which says ‘to trust in the Lord with all things' . . . [and] ‘do you know that your body is a temple of the Holy Spirit within you, whom you have from God? You are not your own, for you were bought with a price. So glorify God in your body,'” (3) “[g]etting th[e] vaccine, not knowing how it may affect [her] mentally and physically either now or in the future, would go against the Bible and what God tells [her],” and (4) she had “already contracted Covid in the past, [and] thus ha[d] already built up natural broad-spectrum antibodies with the immune system that God gave [her, and she would be] relying on that and God to protect [her] instead of something man-made.” (Janzen Decl. Ex. 5 at 1.)
“[T]he burden to allege a conflict with religious beliefs is fairly minimal.” Bolden-Hardge, 63 F.4th at 1223 (citing Thomas, 450 U.S. at 715). The Court may not interrogate the reasonableness of Wilson's beliefs and interpretations of her Bible, and therefore focuses its inquiry on whether Wilson has alleged an actual conflict with OHSU's COVID-19 vaccine mandate. See Id. (“[W]e do not interrogate the reasonableness of Bolden-Hardge's beliefs and instead focus our inquiry on whether she has alleged an actual conflict. We hold that she has done so.”).
The Court has dismissed complaints in similar vaccine exemption cases where the plaintiffs relied largely on conclusory assertions and recitations of statutory language and alleged no facts to plausibly suggest that (1) the plaintiffs' beliefs were rooted in their religions, (2) there was an actual conflict between the plaintiffs' beliefs and their employers' vaccine mandate, and/or (3) in requesting an exemption, the plaintiffs informed their employer of the belief and conflict. See Stephens, 2023 WL 7612395, at *6 (noting that the plaintiff “allege[d] only that as a ‘devout Christian' and ‘devoutly religious member of the Christian faith who endeavors at all times to follow the teachings of Christ,' she ‘did not believe it was consistent with her faith to take the vaccine,'” finding that the plaintiff's allegations were “conclusory,” and stating that “[g]eneral references to Christianity [did] not meet even a ‘fairly minimal' burden at the pleading stage, as such allegations are conclusory and fail plausibly to suggest that a plaintiff's anti-vaccination beliefs are in fact religious” (citing Kather, 2023 WL 4865533, at *5)); Trinh, 2023 WL 7525228, at *2, *8-10 (emphasizing the “lack of specific allegations,” the “[a]bsen[ce] [of] additional factual allegations,” and that the complaint stated only that the plaintiff was a “deeply religious person who follow[ed] [unspecified] ten[ets] of both the Christian faith and Buddhism . . . [and was] dedicated to following the [unspecified] tenets of her faith to the best of her ability,” and that “[as] a devoutly religious person, [the plaintiff] had serious objections to taking the vaccine because it would constitute violating her bodily integrity and tainting the purity of her body” (citing Kather, 2023 WL 4865533, at *5)); see also Keene, 2023 WL 3451687, at *1 (noting that a plaintiff must “inform[] her employer of the belief and conflict”) (simplified); Shafer, 2024 WL 1932544, at *3 (“[T]he court must distinguish between conflicts that are rooted in religious belief as opposed to ones based on purely secular philosophical concern.”) (simplified).
Courts are not required to accept a plaintiff's conclusory assertion of a violation of his religious beliefs at face value. See Bolden-Hardge, 63 F.4th at 1223-24 (stating that courts need not “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value” and holding that the plaintiff “pleaded a conflict between her religious beliefs and [a] portion of [a] loyalty oath”); see also Kather, 2023 WL 4865533, at *5 (dismissing the plaintiffs' Title VII claims because 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). After all, a complaint must “include sufficient factual enhancement to cross the line between possibility and plausibility.” Whitaker, 985 F.3d at 1176 (quoting Eclectic, 751 F.3d at 995-97); cf. Bolden-Hardge, 63 F.4th at 1222-24 (assessing whether the plaintiff had plausibly alleged “an actual conflict” between her religious beliefs and work requirement) (emphasis added).
Accepting Wilson's statements as true, as the Court must at the pleading stage, Wilson plausibly alleges that she holds bona fide religious beliefs that conflicted with OHSU's vaccine mandate. Construing all facts and inferences in her favor, Wilson's statements suggest that based on her readings and interpretations of verses in her Bible (some of which she quotes), she cannot receive a vaccine injection (i.e., rely on “something man-made and not God”) for “protection and healing” without violating the “foundation of her faith,” going “against the Bible and what God tells her,” exhibiting a lack of faith and “trust in the Lord with all things,” and failing to treat her “body [as] a temple of the Holy Spirit within [her]” and “glorify God in [her] body.” (Janzen Decl. Ex. 5 at 1.) These statements amount to more than conclusory assertions of a conflict between religious beliefs and a vaccine mandate, and show how Wilson's conflict was rooted in her religious beliefs. See Shafer, 2024 WL 1932544, *3 (noting that a “court must distinguish between conflicts that are rooted in religious belief as opposed to ones based on purely secular philosophical concern”) (simplified); cf.Quinn v. Legacy Health, No. 3:23-cv-00331-JR, 2024 WL 620344, at *2 (D. Or. Feb. 13, 2024) (Nelson, J.) (noting that one of the plaintiff's religious exemption requests stated “I AM GOD” and “do not need a religious authority other than God” but also stated that she was “a non-denominational Christian,” the “Bible ma[de] it clear that [her] body [was] a temple,” she could not “[t]ak[e] [a] new vaccine/experimental gene therapy/gateway to the Mark of the Beast [without] griev[ing] [her] Lord and [her] soul,” and “the ‘Mark of the Beast' refers to a concept from the Christian Bible,” and holding that this plaintiff met “the minimal standard for pleading a sincere religious belief that conflicts with an employment requirement”).
For these reasons, the Court recommends that the district judge deny OHSU's motion to dismiss Wilson's claim for failing to accommodate her religion. (See Def.'s Reply at 13, seeking dismissal on the ground that Wilson's beliefs are not rooted in her religion and there is no conflict).
II. HOSTILE WORK ENVIRONMENT
OHSU moves to dismiss Proschmann's, Sharpe's, and Wilson's hostile work environment claims, to the extent that they assert such claims. (Def.'s Mot. at 6, 10-11; Def.'s Reply at 2-3, 15-16.) The Court agrees that Proschmann, Sharpe, and Wilson fail to state hostile work environment claims, and recommends that the district judge grant OHSU's motion on this ground.
A. Applicable Law
To state a hostile work environment claim, a plaintiff must allege facts that plausibly suggest “(1) that he was subjected to verbal or physical conduct of a [religious] nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Brown, 2023 WL 6147178, at *6 (quoting Mills v. Peace Health, 31 F.Supp.3d 1099, 1115 (D. Or. 2014)); see also Griffin v. City of Portland, No. 3:12-cv-01591-MO. 2013 WL 5785173, at *1-2 (D. Or. Oct. 25, 2013) (applying the same elements in a Title VII case and holding “that there [was] a genuine dispute of material fact as to whether [the] [d]efendant . . . [was] liable under Title VII for religious discrimination against [the plaintiff] under a hostile work environment theory”).
In Brown, for example, the plaintiffs alleged that their employer “created a hostile environment during the time [they] were still working on site but were unvaccinated, and that [they] overheard or directly received hostile comments about unvaccinated people by other staff members.” 2023 WL 6147178, at *6. The district court explained that the plaintiffs “allege[d] no connection between the comments about unvaccinated people and their religion,” noting that “[t]o remain unvaccinated may be a secular choice, and unvaccinated status alone does not establish any connotation of religious affiliation.” Id. The district court further explained that “[w]ithout some connection to their religion, [the] [p]laintiffs fail[ed] to allege that they faced verbal or physical conduct of a religious nature.” Id. The district court in turn dismissed the portion of the complaint setting forth a hostile environment theory, and granted the plaintiffs leave to amend. Id. at *6, *8.
B. Analysis
Proschmann, Sharpe, and Wilson have failed to state a hostile work environment claim under Title VII.
Proschmann's hostile work environment theory is based on her allegation that (1) OHSU “implemented a sticker system for the badges of those employees who were unvaccinated, making it clear who was unvaccinated,” and (2) she was “shocked by the unkind comments she heard from coworkers about the unvaccinated.” (Compl. ¶ 14.) Sharpe's theory is based on her allegation that many of her “co-workers stopped wanting to be around her, or to have lunch with her,” which “made her feel ostracized and undervalued, both as an employee and as a human being.” (Id. ¶ 19.) Similar to Sharpe's theory, Wilson's theory is based on her allegation that (1) “[a]lthough co-workers were unaware of her vaccination status, there were multiple people on campus who made disrespectful and hateful comments about people who were not vaccinated,” and (2) it was “hard to come to work and upsetting . . . to listen to [the] comments.” (Id. ¶ 23.)
OHSU argues that Proschmann's, Sharpe's, and Wilson's hostile work environment theories suffer from the same “[c]ritical[]” deficiency as the plaintiffs' theory in Brown, i.e., the lack of a connection between the complained-of conduct and the plaintiffs' religions. (See Def.'s Mot. at 10-11, stating that “[c]ritically, however, the Complaint alleges no connection between the comments about unvaccinated people and their religion,” and that plaintiffs' hostile work environment theories fail on their face “for the reasons articulated by Judge Simon in Brown”). Plaintiffs do not address this argument or the Brown decision. (See Pl.'s Resp. at 7.) Plaintiffs nevertheless argue that they have alleged they were “subjected to abuse from a variety of sources and in every facet of their work because of their religious objection to taking the COVID-19 vaccine,” and as a result, they have stated plausible hostile work environment claims. (Id.)
Like Brown, Proschmann, Sharpe, and Wilson fail to allege a connection between their religions and the conduct of which they complain (i.e., a sticker system for unvaccinated employees, unkind comments about unvaccinated employees, co-workers who did not want to be around or eat lunch with unvaccinated employees, and hateful and disrespectful comments that unidentified “people on campus” made about “people who were not vaccinated”). (See Compl. ¶¶ 14, 19, 23.) As explained in Brown, “[t]o remain unvaccinated may be a secular choice, and unvaccinated status alone does not establish any connotation of religious affiliation.” 2023 WL 6147178, at *6. Thus, Proschmann, Sharpe, and Wilson fail to state plausible hostile work environment claims. Accordingly, the Court recommends that the district judge grant OHSU's motion on this ground and grant Proschmann, Sharpe, and Wilson fourteen days' leave to amend their claims. See Id. at *8 (“If Plaintiffs believe they can cure any of the deficiencies identified herein, Plaintiffs may file an amended complaint within two weeks of the date of this Opinion and Order.”).
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT IN PART and DENY IN PART OHSU's motion to dismiss (ECF No. 6). Given that Plaintiffs agreed voluntarily to dismiss their state law claims with prejudice (Def.'s Mot. at 2 n.1), the district judge should also “dismiss[] all seven Plaintiffs' ORS [§] 659A.030 claims [with prejudice].” (Def.'s Reply at 2 n.2.)
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.