Opinion
3:23-cv-01295-HZ
02-25-2024
LILY GIMBY, an Individual Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY SCHOOL OF DENTISTRY, An independent public corporation. Defendant.
Caroline Janzen Janzen Legal Services, LLC Attorneys for Plaintiffs Brenda K. Baumgart Thomas Johnson Sophie Shaddy-Farnsworth Stoel Rives LLP Attorneys for Defendants
Caroline Janzen
Janzen Legal Services, LLC
Attorneys for Plaintiffs
Brenda K. Baumgart
Thomas Johnson
Sophie Shaddy-Farnsworth
Stoel Rives LLP
Attorneys for Defendants
OPINION AND ORDER
MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE.
Plaintiff brings religious discrimination claims against Defendant Oregon Health and Science University (“OHSU”)under Title VII of the Civil Rights Act of 1964 (“Title VII”) and Oregon state law. Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Complaint for failure to state a claim for relief. The Court grants Defendant's motion.
Plaintiff's Complaint names “Oregon Health and Science University School of Dentistry” as Defendant in her case caption. However, the factual allegations within the Complaint itself pertain to “OHSU's School of Nursing.” Compl. ¶ 9.
BACKGROUND
Plaintiff was a student at OHSU's School of Nursing who began nursing school full time in fall 2020. Compl. ¶ 9, ECF 1. In the summer of 2021, in response to the COVID-19 pandemic, Defendant announced a vaccine mandate. Id. ¶ 13. Prior to that time, Plaintiff had been working in clinical rotations including direct contact with patients while following COVID-19 hygiene, masking, testing, and distancing protocols. Id. ¶¶ 9, 12. When the vaccine mandate was announced, Plaintiff was informed that she could apply for a religious exemption. Id. ¶ 13.
Plaintiff filed for a religious exemption, explaining:
I have complete faith in God's plan for my life. Taking a vaccine would undermine my faith and trust that God knows the direction that my journey is supposed to take. “That your faith might not be based on human wisdom but on God's power.” (1 Cor. 2:5) I cannot receive vaccines as they unnaturally interrupt my journey in this natural world as is set up by God and undermines my faith and trust in God.Janzen Decl. Ex. 1, ECF 9. Defendant denied Plaintiff's application for an exemption. Compl. ¶ 15. Because she remained unvaccinated, Plaintiff was forced to take a leave of absence. Id. ¶ 17.
Defendant does not object to the Court's consideration of this document as incorporated by reference in Plaintiff's Complaint. Def. Reply 7.
Plaintiff brings claims under Title VII and Oregon state law for unlawful discrimination based on her religion, alleging that Defendant failed to make a good faith effort to accommodate her religious beliefs and forced her out of its School of Nursing Program. Id. ¶¶ 23-33.
STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of their “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
DISCUSSION
Defendant moves to dismiss Plaintiff's Title VII claimon two bases: (I) that Plaintiff does not have standing to sue under Title VII because she is not an employee to whom the statute applies; and (II) that even if Title VII did apply to Plaintiff, she fails to state a plausible claim because she has not alleged a sincere religious belief in conflict with an employment duty. The Court addresses each argument in turn.
Defendant also moves to dismiss Plaintiff's state law claim (“First Claim for Relief”), which Plaintiff concedes. Pl. Resp. 1, ECF 8. Accordingly, Plaintiff's state law claim is dismissed.
I. Application of Title VII to Plaintiff
Under Title VII, an employer may not “fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... 42 USC § 2000e-2(a)(1). The term “employee” means “an individual employed by an employer.” 42 U.S.C.A. § 2000e. The Ninth Circuit has acknowledged that the statute's definition is “circular” and it “appl[ies] the general common law of agency to determine whether a person is an employee.” Waisgerber v. City of Los Angeles, 406 Fed.Appx. 150, 151 (9th Cir. 2010). Defendant argues that Plaintiff's Title VII claim should be dismissed because, as a nursing student, she is not an “employee” to whom Title VII applies.
For purposes of Title VII, the Ninth Circuit has suggested that a plaintiff must allege “substantial benefits” from their alleged employment in order to be an “employee” protected by Title VII. Id. at 152. While that benefit need not be a salary, a plaintiff must nevertheless plead “substantial benefits.” Id. (collecting cases in which people receiving non-salary benefits such as retirement, insurance, or annual leave may be “employees” under Title VII). Then, a Title VII plaintiff must be able to satisfy the common law agency test, which depends on the level of control the employer may exercise over the alleged employee. U.S. Equal Emp. Opportunity Comm'n v. Glob. Horizons, Inc., 915 F.3d 631, 638 (9th Cir. 2019) (citing Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 448 (2003). Relevant factors include:
the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.Id. (quoting Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
Here, Plaintiff has failed to plead facts sufficient to establish that she received a substantial benefit from her alleged employment. There are no allegations in the Complaint that Plaintiff received benefits from Defendant as a nursing student. Without such allegations, she cannot establish that she is an employee to whom Title VII applies. SeeWaisgerber, 406 Fed.Appx. at 152.
In addition, Plaintiff's pleadings are insufficient to plausibly allege that she was Defendant's employee under the common law agency test. Plaintiff argues that her pleadings establish agency because she alleges that she “was in clinical rotations with direct contact with patients while wearing full personal protective equipment and testing weekly for COVID-19.” Pl. Resp 4 (citing Compl. ¶ 9). But this allegation says nothing about the nature of Plaintiff's relationship to Defendant or whether it exercised any control over Plaintiff. Even drawing all inferences in Plaintiff's favor, as this Court must, this allegation on its own does not plausibly establish agency. Thus, Plaintiff has failed to plead that she is an employee to whom Title VII applies.
However, notwithstanding Defendant's conclusory statement that “Plaintiff was never an OHSU employee, and nothing can change that,” Def. Reply 11, the Court finds that it is possible based on the above analysis to cure the pleading defects. Accordingly, Plaintiff is given leave to amend her complaint. Because the Court grants leave to amend, it reaches Defendant's second argument that Plaintiff has failed to allege a sincere religious belief in conflict with an employment duty.
II. Religious belief in conflict with an employment duty
To establish religious discrimination under Title VII based on a failure to accommodate theory, a plaintiff must plead that: (1) she had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer discharged her because of her inability to fulfill the job requirement. Petersonv. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). Plaintiffs' state-law claims are analyzed the same way. See Pullom v. U.S. Bakery, 477 F.Supp.2d 1093, 1100 (D. Or. 2007) (“Because O.R.S. 659A.030 is modeled after Title VII, plaintiff's state law discrimination claim can be analyzed together with her federal discrimination claim.”) (citing Heller v. EBB Auto Co., 8 F.3d 1433, 1437 n. 2 (9th Cir.1993); Winnett v. City of Portland, 118 Or.App. 437, 847 P.2d 902, 905 (1993)). Defendant's motion to dismiss argues that Plaintiff fails to plead facts sufficient to establish the first element.
With regard to establishing a bona fide religious belief in conflict with an employment duty, “[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.” Keene v. City & Cnty. of San Francisco, No. 22-16567, 2023 WL 3451687, at *2 (9th Cir. May 15, 2023) (citing Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981)). Indeed, the court may not “question the legitimacy of [an individual's] religious beliefs regarding COVID-19 vaccinations.” Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1176 n. 3 (9th Cir. 2021) (citing Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm'n, 138 S.Ct. 1719, 1731 (2018)). While the burden to allege a conflict between religious beliefs and an employment duty is “minimal,” courts need not “take plaintiffs' conclusory assertions of violations of their religious beliefs at face value.” Bolden-Hardge v. Off. of California State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023). In addition, the court must distinguish between conflicts that are “rooted in religious belief” as opposed to ones based on “‘purely secular' philosophical concerns.” Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).
In support of Defendant's argument that Plaintiff fails to plead a bona fide religious belief in conflict with its COVID-19 vaccine mandate, Defendant cites to numerous cases inside and outside of this district which have addressed the question of what allegations are sufficient to establish a sincere religious belief in conflict with an employment duty in the context of religious exemptions to COVID-19 vaccine and testing mandates. In reviewing the case law, the Court notes that these cases generally fall into three categories: (1) those in which plaintiffs merely allege a general statement of religious conflict without identifying a conflicting belief; (2) those in which plaintiffs allege a religious belief coupled with a secular objection; and (3) those in which plaintiffs allege a religious belief and a general statement that acquiring the vaccine is in conflict with that belief.
In the first category of cases, courts appear to be in agreement that a general allegation of religious conflict without identifying a conflicting belief is insufficient to survive a motion to dismiss. For example, in Kather v. Asante Health Sys., No. 1:22-CV-01842-MC, 2023 WL 4865533, at *5 (D. Or. July 28, 2023), several plaintiffs alleged that the defendant “exalts itself in purporting to place an unbeliever in a position to judge the Word of God, it is blasphemy, satanic, sinful, untruth, and insultive [sic] trespass.” Judge McShane concluded that “this allegation only generally emotes religious opposition to Defendant's authority to mandate vaccines” and that the plaintiffs “allege facts that hint at religious beliefs but do not specify how those beliefs conflict with receiving a COVID-19 vaccine.” Id. Accordingly, the court granted the defendant's motion to dismiss for failure to sufficiently allege religious beliefs in conflict with obtaining the mandated COVID-19 vaccine. Other courts have concluded the same when evaluating similar allegations. See, e.g., Stephens v. Legacy-Go Health Urgent Care, No. 3:23-CV-00206-SB, 2023 WL 7612395 (D. Or. Oct. 23, 2023) (general allegation that the plaintiff was a “devout Christian” and “did not believe it was consistent with her faith to take the vaccine” insufficient), report and recommendation adopted sub nom...Stephens v. Legacy Health, No. 3:23-CV-00206-SB, 2023 WL 7623865 (D. Or. Nov. 14, 2023).
In the second category of cases, many courts have held that allegations of a religious belief coupled with a secular objection fails to plead a bona fide religious belief in conflict with an employment duty because the objection itself is secular. For example, in this district, Judge Russo dismissed a claim by a plaintiff who alleged that she had a Christian belief that her body was a “temple of God” and that COVID-19 antigen testing requirements conflicted with that belief because she believed the test was “dipped in ethylene oxide,” a “carcinogenic substance.” Detwiler v. Mid-Columbia Med. Ctr., No. 3:22-CV-01306-JR, 2023 WL 7221458, at *6 (D. Or. Sept. 13, 2023), report and recommendation adopted, No. 3:22-CV-01306-JR, 2023 WL 7220734 (D. Or. Nov. 2, 2023). Judge Russo explained that “the Court readily accepts that plaintiff ‘has a bona fide religious belief that that her body is a temple of the Holy Spirit' -however, plaintiff's specific determination of what is harmful (i.e., ethylene oxide) was not, in this case, premised on the Bible or any other religious tenet or teaching, but rather on her research-based scientific/medical judgments.” Id. at 6. In other words, because it was clear from the complaint that the plaintiff's belief about the harmfulness of the antigen testing was a secular one rather than a religious one, the plaintiff's objection and allegations of a conflict with her employment duties was not fundamentally religious in nature. See also, e.g.Passarella v.Aspirus, Inc., No. 22-CV-287-JDP, 2023 WL 2455681, at *2 (W.D. Wis. Mar. 10, 2023) (“Because the pleadings show that [some of the plaintiffs'] objections to the COVID vaccine are medical, not religious, their claims will be dismissed with prejudice”).
As to the final category of cases this Court has reviewed, there appears to be disagreement among courts addressing motions to dismiss when plaintiffs allege a religious belief and a statement that obtaining the COVID-19 vaccine conflicts with that belief. For example, in Kather, one of the plaintiffs alleged that “Satan is at work with the whole forceful COVID-19 mandate” and that she had the “God-given right to refuse a vaccination that goes against everything [she] believe[s] in.” 2023 WL 4865533, at *5 (alterations in original). Judge McShane explained that “[d]espite not articulating her religious conflict with great clarity and precision, it can be inferred that [the plaintiff's] religious-based hostility toward the COVID-19 mandate informs a religious opposition to receiving a COVID-19 vaccine.” Id. Judge McShane denied the defendant's motion to dismiss that plaintiff's claim, finding it sufficient to satisfy the “minimal burden” to allege a religious-based employment conflict. Id. Other courts in the Ninth Circuit have done the same when evaluating similar allegations. See, e.g. Thompson v. AsanteHealth Sys., No. 1:23-CV-00486-CL, 2023 WL 7348812, at *5 (D. Or. Sept. 21, 2023) (allegation that the plaintiff's “body is sacred” and that “Buddhist mantras guide me in choosing what is best for me, reinforcing my belief that the vaccine is not suitable for me at this time” sufficient to state a claim), report and recommendation adopted, No. 1:23-CV-00486-CL, 2023 WL 7326496 (D. Or. Nov. 7, 2023); Rolovich v. Washington State Univ., No. 2:22-CV-0319-TOR, 2023 WL 3733894, at *3 (E.D. Wash. May 30, 2023) (allegations that the plaintiff's “study of the Bible, personal prayer, ... advice from a Catholic priest, and the teachings of the Church ... precluded him from receiving any available COVID-19 vaccine” sufficient to survive motion to dismiss); Camp v. L.A. Arena Co., LLC, No. EDCV222220JGBKKX, 2023 WL 4680797, at *7 (C.D. Cal. June 15, 2023) (Plaintiff's allegation that his body is a “temple of the Holy Spirit” and that it was “against his religion to ingest or inject his body with possible harmful substances” sufficient to plead a bona fide religious belief for purposes of a failure to accommodate claim).
However, other courts have held that similar allegations are insufficient to state a claim. For example, in Ruscitti v. Legacy Health, the plaintiff alleged that “[a]s a devout Christian, [she] had serious objections to taking the vaccine because it would constitute violating her bodily integrity and tainting the purity of her body.” No. 3:23-CV-00787-JR, 2023 WL 8007620, at *1 (D. Or. Sept. 27, 2023), report and recommendation adopted, No. 3:23-CV-00787-JR, 2023 WL 8006269 (D. Or. Nov. 16, 2023). The court there reasoned that plaintiff's claim of a religious conflict was conclusory and failed to allege a religious opposition. Id. at *3. Other courts have held similarly. See, e.g. Trinh v. Shriners Hosps. for Child., No. 3:22-CV-01999-SB, 2023 WL 7525228, at *10 (D. Or. Oct. 23, 2023) (allegations that plaintiff's Christian and Buddhist beliefs in “bodily integrity” and “purity” insufficient to state a claim), report and recommendation adopted, No. 3:22-CV-01999-SB, 2023 WL 7521441 (D. Or. Nov. 13, 2023); Thornton v. Ipsen Biopharmaceuticals, Inc., No. CV 23-11171-JCB, 2023 WL 7116739, at *4 (D. Mass. Oct. 26, 2023) (allegation that “what God has created is perfect” and that the vaccine would “defil[e] [the plaintiff's] perfectly created body” insufficient to state a claim).
As to this third category of cases, the Court agrees with those courts which have found allegations of an allegedly religious belief coupled with an assertion that the COVID-19 vaccine conflicts with that belief is enough to plead a prima facie case of religious discrimination. Such allegations are enough to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and is more than a “threadbare recital[] of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Finding such allegations sufficient to state a claim is consistent with the Ninth Circuit's directive that the burden to plead this element is “minimal,” Bolden-Hardge, 63 F.4th at 1223, and the Supreme Court's warning in the Free Exercise context that “the resolution of [what is a ‘religious' belief] is not to turn upon a judicial perception of the particular belief or practice in question.” Thomas, 450 U.S. at 714. Accordingly, when a Plaintiff alleges a religious belief-and alleges that complying with a COVID-19 vaccine mandate conflicts with that belief-that is enough to meet the minimal burden of pleading a bona fide religious belief in conflict with an employment duty.
Applying the above framework here, the Court finds that Plaintiff adequately pleads a bona fide religious belief in conflict with an employment duty. Plaintiff's allegations here are similar to those in the third category of cases above. Plaintiff articulates a religious belief that “my faith and trust that God knows the direction that my journey is supposed to take,” and explains how that belief precludes vaccination: “I cannot receive vaccines as they unnaturally interrupt my journey in this natural world as is set up by God.” Janzen Decl. Ex. 1. This is sufficient at this stage of the case.
CONCLUSION
Defendant's Motion to Dismiss [5] is GRANTED and Plaintiff's Complaint is dismissed with leave to amend. Plaintiff shall file her amended complaint within 30 days of this Opinion & Order.
IT IS SO ORDERED.