Gage v. Mayo Clinic ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mally Gage, No. CV-22-02091-PHX-SMM 10 Plaintiff, ORDER 11 v. 12 Mayo Clinic, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended 16 Complaint. (Doc. 25). The Motion has been fully briefed. (Docs. 25, 26, 29). For the 17 following reasons, the Court grants Defendants’ Motion to Dismiss. 18 I. BACKGROUND 19 Pro se Plaintiff Mally Gage interviewed for and was offered a position as an inpatient 20 pharmacist with Defendant Mayo Clinic Arizona (“Defendant”) in March of 2022. (Doc. 21 19 at 3). At the time, Defendant required all employees to be fully vaccinated against 22 COVID-19 unless granted a religious exemption (Id. at 3–4). Defendant provided new 23 employees with a Religious Accommodation Request Form (“Accommodation Form”) 24 through which employees could request an exemption from the requirement. (Id. at 2). The 25 Accommodation Form gave applicants 500 characters to explain their religious beliefs, 26 required disclosure of any vaccinations received within the past five years and asked 27 whether the applicant’s religious beliefs had changed over time. (Id.) The Accommodation 28 Form also asked applicants if they had any objection to the use of fetal cell lines. (Id.) If 1 answered affirmatively, the Accommodation Form then listed between twenty to thirty 2 drugs that use such cell lines. (Id.) If any applicant confirmed the use of any of these drugs, 3 the Accommodation Form presented them with two options: they could state that they 4 would stop taking the drugs and “act consistent with [their] religious beliefs” or continue 5 taking the drugs and admit that their beliefs were insincere. (Id.) The Accommodation 6 Form also, Plaintiff alleges, required “the forfeiture of rights including but not limited to 7 agreeing to disparate treatments, forgoing additional Requests for Accommodations and 8 agreement to possible termination.” (Id. at 2). 9 Rather than fill out the provided form, Plaintiff submitted to Defendant her own two- 10 page request for a religious exemption along with an explanation for her refusal to fill out 11 the online Accommodation Form. (Id. at 4, 9, 11). On March 22, Plaintiff was informed 12 that Defendant’s Religious Exemption Committee would not address her exemption 13 request and would only accept such a request through the online Accommodation Form. 14 (Id. at 4). On March 23, Plaintiff informed Defendant that she would not be submitting her 15 exemption request through the Accommodation Form and that she planned to submit an 16 Equal Employment Opportunity Commission (EEOC) charge, which she submitted soon 17 after. (Id.) Later that day, Defendant completed a Post Offer Placement Assessment during 18 which Plaintiff stated that she was 24 weeks pregnant. (Id. at 5). On March 25, Defendant 19 left Plaintiff a voicemail stating that she would be required to fill out the Accommodation 20 Form as a term of employment. (Id.) In response, Plaintiff partially filled out the 21 Accommodation Form. (Id. at 6). On March 28, Defendant informed Plaintiff that it would 22 only accept the Accommodation Form filled out in its entirety. (Id.) After Plaintiff repeated 23 that she would not fill out an online form that she deemed to be illegal, Defendant 24 terminated her employment. (Id. at 6–7). 25 On December 12, 2022, Plaintiff filed a Complaint in this Court. (Doc. 1). On March 26 24, 2023, Defendant filed a Motion to Dismiss for Failure to State a Claim. (Doc. 15). This 27 Court granted the Motion on May 3, 2023, dismissing Plaintiff’s complaint and granting 28 Plaintiff leave to amend. (Doc. 18). Plaintiff filed a First Amended Complaint (FAC) on 1 May 19, 2023, (Doc. 19), adding Defendant Mayo Clinic Arizona, and Defendants filed a 2 Motion to Dismiss Plaintiff’s FAC on the same grounds on July 24, 2023. (Doc. 25). It is 3 this Motion to Dismiss that is now before the Court. 4 II. LEGAL STANDARD 5 Courts must liberally construe the pleadings of pro se plaintiffs. Draper v. Rosario, 6 836 F.3d 1072, 1089 (9th Cir. 2016). Yet such pleadings must still comply with recognized 7 pleading standards. Ghazali v. Moran, 46 F.3d 52, 52 (9th Cir. 1995). A pleading must 8 contain “a short and plain statement of the claim showing that the pleader is entitled to 9 relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). The pleading must “put defendants fairly 10 on notice of the claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 11 1991). While Rule 8 does not demand detailed factual allegations, “a complaint must 12 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 13 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff 15 pleads factual content that allows the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of 17 a cause action, supported by mere conclusory statements, do not suffice.” Id. 18 Motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) “can be based 19 on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a 20 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 21 1990). In evaluating a motion to dismiss, a court will “accept the factual allegations of the 22 complaint as true and construe them in the light most favorable to the plaintiff.” AE ex rel. 23 Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). 24 III. DISCUSSION 25 As an initial matter, the Court will address Plaintiff’s arguments regarding pro se 26 pleading standards. Plaintiff argues in her Response to Defendants’ Motion to Dismiss that 27 she is wrongly being subjected to heightened pleading standards as a pro se litigant. (Doc. 28 26 at 1). 1 The Supreme Court held in Swierkiewicz v. Sorema N.A. that “an employment 2 discrimination plaintiff need not plead a prima facie case of discrimination.” 534 U.S. 506, 3 508 (2002). Instead, plaintiffs were only required to state a short and plain statement of the 4 claim sufficient to “give the defendants fair notice of what the plaintiff’s claim is and the 5 grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). However, the 6 pleading standard articulated in Conley—and relied upon in Swierkiewicz—is no longer 7 the standard for pleading a cause of action. The Supreme Court in Twombly raised the 8 standards for pleading, holding that plaintiffs must plead enough facts to state a claim for 9 relief which is plausible on its face. Twombly, 550 U.S. at 547. The Supreme Court in Iqbal 10 then applied the standard it articulated in Twombly to all civil actions. 556 U.S. at 678. 11 The Ninth Circuit in Starr v. Baca articulated the principals in common between 12 Swierkiewicz and the subsequent decisions: 13 First, to be entitled to the presumption of truth, allegations in a complaint or 14 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 15 to enable the opposing party to defend itself effectively. Second, the factual 16 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 17 to the expense of discovery and continued litigation. 18 652 F.3d 1202, 1216 (9th Cir. 2011). Thus, although Plaintiff need not include “heightened 19 fact pleading of specifics,” Plaintiff still must allege facts that state a plausible claim for 20 relief. Id. 21 Though Plaintiff is correct in distinguishing between standards for summary 22 judgment and Rule 12 motions to dismiss, Plaintiff’s contention that she is being subjected 23 to inflated pleading requirements is misplaced. There is no “expert legal theory” being 24 required of Plaintiff. Rather, specific causes of action—such as religious discrimination 25 under Title VII—can be pleaded under various theories supporting a claim for relief, and 26 different theories require distinct allegations in order to comprise a viable cause of action. 27 Simply stating that she was discriminated against does not establish a claim which “is 28 plausible on its face” and cannot survive a 12(b)(6) motion to dismiss. 1 Plaintiff is correct in that she does not need to prove a prima facie case at this point. 2 See Swierkiewicz, 534 U.S. at 510–11 (“This Court has never indicated that the 3 requirements for establishing a prima facie case under McDonnell Douglas also apply to 4 the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.”). 5 However, Plaintiff still must plead a plausible claim for relief, which requires examining 6 the substance of Plaintiff’s allegations. If Plaintiff does not allege facts that support a claim 7 of employment discrimination, the Court cannot find that Plaintiff has stated a plausible 8 claim for relief. Plaintiff’s pleadings are construed liberally as a pro se plaintiff, but 9 Plaintiff must still allege more than legal conclusions. 10 A. Religious discrimination 11 Plaintiff raises a cause of action for religious discrimination under Title VII in her 12 FAC. (Doc. 19). Claims under Title VII for religious discrimination may be asserted under 13 various theories, the most common being disparate treatment and failure to accommodate. 14 See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). As with Plaintiff’s 15 first Complaint, Plaintiff does not delineate a specific theory of discrimination under Title 16 VII, but Plaintiff’s FAC suggests both failure to accommodate and disparate treatment 17 claims. Defendant moves to dismiss both religious discrimination claims on the grounds 18 that Plaintiff has again failed to state a claim upon which relief can be granted. (Doc. 25). 19 The Court evaluates Plaintiff’s claims in turn. 20 1. Failure to Accommodate 21 Title VII requires employers to reasonably accommodate an applicant’s sincerely 22 held beliefs should those beliefs conflict with a job requirement. Groff v. DeJoy, 143 S. Ct. 23 2279, 2287–88 (2023). Such an accommodation is required unless it “would result in 24 substantial increased costs in relation to the conduct of [the employer’s] particular 25 business.” Id. at 2295. Courts employ a two-part burden-shifting framework to analyze 26 failure to accommodate claims. First, a plaintiff must show that “(1) [s]he had a bona fide 27 religious belief, the practice of which conflicts with an employment duty; (2) [s]he 28 informed [her] employer of the belief and conflict; and (3) the employer discharged, 1 threatened, or otherwise subjected [her] to an adverse employment action because of [her] 2 inability to fulfill the job requirement.” Peterson, 358 F.3d at 606. Once a plaintiff has 3 established a prima facie case, the employer must then “establish that it initiated good faith 4 efforts to accommodate the employee’s religious practices or that it could not reasonably 5 accommodate the employee without undue hardship.” Id. (citation omitted). 6 As an initial matter, it is not the Court’s purpose at this stage of the proceedings to 7 render judgment on whether Plaintiff’s beliefs are sufficiently tied to the particular tenets 8 of her religion. See Thomas v. Review Bd., 450 U.S. 707, 714 (1981) (“[T]he resolution 9 of [whether a belief is religious] is not to turn upon a judicial perception of the particular 10 belief or practice in question; religious beliefs need not be acceptable, logical, consistent, 11 or comprehensible to others in order to merit . . . protection.”). In evaluating whether a 12 plaintiff has sufficiently pleaded a sincerely held religious belief, the Court must avoid 13 “second-guessing the reasonableness of an individual’s assertion that a requirement 14 burdens her religious beliefs.” Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 15 1215, 1223 (9th Cir. 2023). The role of the Court is instead to determine whether Plaintiff 16 “has alleged an actual conflict” between her religious beliefs and an employment 17 requirement. Id. Conversely, the Court is not required to “take plaintiffs’ conclusory 18 assertions of violations of their religious beliefs at face value.” Id. 19 In a “Legal Dossier” Plaintiff sent to Defendants in lieu of completing the religious 20 exemption form, Plaintiff describes herself as a devoted Christian.1 (Doc. 19 at 39). 21 Plaintiff believes that “God has given [her] direction to abstain from [the COVID-19] 22 vaccine.” (Id.) Plaintiff believes, per her interpretation of Biblical passages, that she must 23 submit to her husband, who “leads in abstaining” from vaccination. (Id.) Plaintiff believes 24 that her body is a temple for the Holy Spirit and that the “immoral and unethical” use of 25 fetal stem cells in development of the COVID-19 vaccine renders the vaccines 26 “unrighteous for [Plaintiff] to put in [her] body.” (Id.) 27 1 Plaintiff has attached this document as one of numerous exhibits to her Amended 28 Complaint. Exhibits are considered as “part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). 1 Several recent cases have addressed religious objections to COVID-19 vaccination 2 based on the use of fetal stem cells during development of the available vaccines, with 3 varying results. Compare Kiel v. Mayo Clinic Health Sys. S.E. Minn., Nos. 22-1319 et al., 4 2023 WL 5000255, at *8–10 (D. Minn. Aug. 4, 2023) (finding that plaintiffs had not 5 pleaded bona fide religious beliefs because they failed to tie their opposition to fetal cell 6 use to particularized religious beliefs), and Winans v. Cox Auto., Inc., No. 22-3826, 2023 7 WL 2975872, at *4 (E.D. Penn. Apr. 17, 2023) (finding that plaintiff failed to plead a 8 sincerely held religious belief), with Algarin v. NYC Health + Hosp. Corp., No. 22-8340, 9 2023 WL 4157164, at *7 (S.D.N.Y. June 23, 2023) (finding that plaintiff pleaded a 10 sincerely held religious belief), Corrales v. Montefiore Med. Ctr., No. 22-1329, 2023 WL 11 2711415, at *5–6 (S.D.N.Y. Mar. 30, 2023) (finding that plaintiff pleaded a prima facie 12 case of discrimination), and Keene v. City & Cnty. of S.F., No. 22-16567, 2023 WL 13 3451687, at *2 (9th Cir. May 15, 2023) (finding that district court erred in holding that 14 plaintiffs had failed to assert sincere beliefs because their beliefs were not scientifically 15 accurate). 16 Bearing in mind that the burden for asserting a conflict is “fairly minimal,” see 17 Bolden-Hardge, 63 F.4th at 1223, the Court finds that Plaintiff has alleged a “bona fide” 18 religious belief which is sufficient to overcome a 12(b)(6) motion to dismiss. See Keene, 19 2023 WL 3451687, at *2 (“A religious belief need not be consistent or rational to be 20 protected under Title VII, and assertion of a sincere religious belief is generally 21 accepted.”). Though Plaintiff raises moral and ethical points that appear to be rooted in 22 personal, rather than religious, beliefs, Plaintiff has asserted that she holds a sincere belief 23 that conflicts with Defendant Mayo Clinic’s policy, and the Court will not second-guess 24 Plaintiff’s assertions. 25 Defendants do not dispute in the Motion to Dismiss that Plaintiff has sufficiently 26 pleaded the second and third elements of a failure to accommodate claim, and so the Court 27 will not address those here. 28 Having found that Plaintiff has alleged a prima facie failure to accommodate claim, 1 the burden then shifts to Defendants to contend that good faith efforts were made to 2 accommodate Plaintiff’s beliefs, or that Defendants could not make such efforts without 3 undue hardship. See Peterson, 358 F.3d at 606. 4 An employer has a duty to offer a potential accommodation when requested by an 5 employee for religious reasons. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 6 (1977); Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir. 1996). If the proposed 7 accommodation “fails to eliminate the affected employee’s religious conflict, the employer 8 must implement an alternative accommodation proposed by the employee, unless the 9 employer proves that the accommodation would cause ‘undue hardship’ to the employer.” 10 Am. Postal Workers Union, S.F. Loc. v. Postmaster Gen., 781 F.2d 772, 776 (citing Burns, 11 589 F.2d at 407). However, “although the statutory burden to accommodate rests with the 12 employer, the employee has a correlative duty to make a good faith attempt to satisfy [her] 13 needs through means offered by the employer. In other words, a reasonable 14 accommodation need not be on the employee’s terms only.” Am. Postal Workers Union, 15 781 F.2d at 777. 16 The inquiry into whether Defendants made good faith efforts to accommodate 17 Plaintiff’s beliefs begins with the question of whether Defendants offered a potential 18 accommodation to Plaintiff. However, Defendants do not argue that Defendants offered 19 an accommodation, instead, Defendants argue that Plaintiff’s claims are foreclosed by the 20 fact that Plaintiff failed to utilize Defendants’ established procedure—here, the 21 Accommodation Form—for requesting a religious accommodation. (Doc. 25 at 6–8).2 (Id.) 22 Defendants cite to several cases to support the assertion that employees must follow an 23 employer’s accommodation request process. See Somos v. Classic MS, LLC, No. 1:22 CV 24 1081, 2022 WL 4483917, at *3 (N.D. Ohio Sept. 27, 2022); Miceli v. JetBlue Airways 25 Corp., 914 F.3d 73, 82–83 (1st Cir. 2019); Vitti v. Macy’s Inc., 758 F. App’x 153, 157–58 26 2 Defendant argues that there was “no obligation to engage in the interactive process” because Plaintiff failed to submit the Accommodation Form. The Court notes that Plaintiff 27 has also raised arguments concerning a required interactive process. (Doc. 19 at 4, 6, 10). The interactive process is a requirement for accommodations made under the Americans 28 with Disabilities Act. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). The Ninth Circuit has not extended the requirement to religious accommodations. 1 (2d Cir. 2018); Christianson v. Boeing Co., Case No. C20-1439RSM, 2022 WL 1486432, 2 at *3; Bresloff-Hernandez v. Horn, 05 Vic. 0384 (JGK), at *25–26 (S.D.N.Y. Sept. 21, 3 2007); Lundquist v. Univ. of South Dakota Sanford Sch. of Med., No. 09-4147-RAL, 2011 4 WL 5326074, at *8–9 (D.S.D. Nov. 4, 2013); Aycox v. City of Gainesville, No. 1:10CV51- 5 WS-GRJ, 2013 WL 5676591, at *6 (N.D. Fla. Oct. 17, 2013). 6 The cases which Defendants cite are distinguishable from the facts of this case. As 7 an initial matter, most of the cases are disability accommodation cases, not Title VII 8 religious accommodation cases. See, e.g., Miceli, 914 F.3d at 82–83; Vitti, 758 F. App’x 9 at 157–58; Christianson, 2022 WL 1486432, at *3. These cases are also distinguishable 10 because the employers’ request processes and procedures do not appear to require the 11 employee to agree to terms of an accommodation; they are wholly procedural processes. 12 Defendants have additionally referenced the EEOC’s own Religious 13 Accommodation Request Form—available on the EEOC website—to support Defendants’ 14 requirement that employees complete a standardized form. (Doc. 25 at 8); Equal 15 Opportunity Emp. Comm’n, Religious Accommodation Request Form, 16 https://perma.cc/3XV9-TM6S. The EEOC’s form is irrelevant to the Court’s analysis. The 17 form’s terms appear to be wholly dissimilar to Mayo Clinic Arizona’s Accommodation 18 Form; the EEOC form contains no character limit for applicants to express the sincerity of 19 their beliefs, no requirement that an employee agree to stop medications inconsistent with 20 their beliefs, no requirement that an employee submit proof of the duration of their beliefs, 21 and no requirement that an employee accept terms and conditions of an accommodation. 22 In lieu of providing Defendants’ own form to the Court, Defendants apparently seek to 23 validate Mayo Clinic Arizona’s Accommodation Form via an entirely different and 24 decidedly less demanding form. 25 While Defendants characterize the Accommodation Form as a “preliminary inquiry 26 into whether an accommodation should be considered,” the Accommodation Form 27 required applicants to agree to specific terms and conditions of an exemption. Because of 28 this, the Accommodation Form goes beyond the sort of accommodation request processes 1 considered in the cases to which Defendants cite. Rather, the Court finds that the Form 2 constitutes a proposed accommodation on the part of Defendants. 3 The next inquiry is whether Defendants’ proposed accommodation would have 4 removed the conflict between Plaintiff’s work requirements and religious beliefs. The 5 purpose of Defendant’s Accommodation Form was to provide employees with an avenue 6 to avoid COVID-19 vaccination for religious reasons. Thus, Defendants’ Accommodation 7 Form, if submitted and approved, would have permitted Plaintiff to forgo COVID-19 8 vaccination. Accordingly, Defendants’ proposed accommodation would have removed the 9 conflict between Plaintiff’s work requirements and Plaintiff’s bona fide religious beliefs. 10 The Court next considers whether Defendants’ offered accommodation was 11 reasonable. See Am. Postal Workers Union, 781 F.2d at 776. (“Where an employer 12 proposes an accommodation which effectively eliminates the religious conflict faced by a 13 particular employee . . . the inquiry under Title VII reduces to whether the accommodation 14 reasonably preserves the affected employee's employment status.”). A reasonable 15 accommodation is one which itself is not discriminatory, see Ansonia Board of Education 16 v. Philbrook, 479 U.S. 60, 70–71 (1986), and one which does not adversely impact the 17 employee’s employment status. See Am. Postal Workers Union, 781 F.2d at 776–77; see 18 also 42 U.S.C. § 2000e-2(a)(2). Title VII requires an employer to accommodate an 19 employee’s religious beliefs “in a manner which will reasonably preserve that employee’s 20 employment status, i.e., compensation, terms, conditions, or privileges of employment.” 21 Id. at 776. 22 Plaintiff argues that the proposed accommodation was unreasonable, and that 23 agreeing to the terms of Defendants’ Accommodation Form would have waived her Title 24 VII rights. Plaintiff largely objects to the terms of the Accommodation Form because some 25 of the terms—namely, terms requiring face masks and frequent PCR testing—were 26 inconsistent with Plaintiff’s own proposed accommodations. However, an employer is only 27 obligated to accept an employee’s proposed accommodations when the employer’s own 28 accommodation fails to remove the employee’s religious conflict. Am. Postal Workers 1 Union, 781 F.2d at 776. Plaintiff does not allege a religious conflict with the terms of 2 Defendants’ proposed accommodation. Rather, Plaintiff’s objections appear to be secular 3 in nature. An employer is not required to accept an employee’s proposed accommodation 4 when “the employee rejects an accommodation posed by the employer solely on secular 5 grounds.” Id. 6 Plaintiff’s contentions with the terms of Defendants’ proposed accommodation 7 appear to be unrelated to her religious conflict with receiving COVID-19 vaccination. For 8 instance, Plaintiff objects to questions pertaining to Plaintiff’s vaccination history and to 9 the duration of Plaintiff’s religious beliefs. Plaintiff further objects to the number of 10 characters allotted on the Accommodation Form for an individual requesting an exemption 11 to explain their religious beliefs. The Court agrees with Plaintiff that the 500-character 12 limit is unnecessarily restrictive and would make it exceedingly difficult for an applicant 13 to express the details and sincerity of their beliefs. However, Plaintiff never submitted the 14 Accommodation Form, and so Plaintiff’s answers to those questions were not used to deny 15 her an accommodation. Consequently, the Court will not scrutinize the questions asked in 16 the Form. 17 Plaintiff alleges that agreeing to the terms of the Accommodation Form would have 18 forfeited Plaintiff’s Title VII rights, but Plaintiff does not plausibly allege how. The courts 19 have been clear that “a reasonable accommodation need not be on the employee’s terms 20 only.” Am. Postal Workers Union, 781 F.2d at 777. The Court finds that Defendant’s 21 proposed accommodation constitutes a good faith effort on the part of Defendant to 22 reasonably accommodate Plaintiff’s religious objections to COVID-19 vaccination. See 23 Anderson, 589 F.2d at 401. However, for secular reasons, Plaintiff did not utilize the means 24 to an accommodation offered by Defendant, even when informed that it was mandatory in 25 order to be considered for an exemption. Consequently, Plaintiff did not make a good faith 26 attempt to resolve the conflict “through means offered by the employer” and did not fulfill 27 her duty to cooperate. Am. Postal Workers Union, 781 F.2d at 777; see also Heller, 8 F.3d 28 at 1440. As such, Plaintiff has not plausibly stated a failure to accommodate claim under 1 Title VII. 2 2. Disparate Treatment 3 Pleading a disparate treatment claim requires the Plaintiff to show that “(1) [s]he is 4 a member of a protected class; (2) [s]he was qualified for her position; (3) [s]he experienced 5 an adverse employment action; and (4) similarly situated individuals outside [her] 6 protected class were treated more favorably, or other circumstances surrounding the 7 adverse employment action give rise to an inference of discrimination.” Peterson, 358 F.3d 8 at 603; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The Court 9 finds that Plaintiff has not pleaded a plausible claim of disparate treatment. 10 The Court previously found that Plaintiff had adequately pleaded the second and 11 third elements of a disparate treatment claim but had not pleaded the first element. The 12 Court interpreted Plaintiff’s complaint as alleging that nonvaccinated individuals were a 13 protected class, which is not the case under Title VII. By amending and adding exhibits to 14 supplement her Complaint that describe her Christian faith, Plaintiff has now adequately 15 pleaded the first element. The Court thus finds that Plaintiff, as a practicing Christian, is a 16 member of a protected class. 17 The fourth and final element requires that Plaintiff plausibly allege that individuals 18 outside her protected class were treated more favorably, or other circumstances give rise 19 to an inference of discrimination. See Peterson, 358 F.3d at 603. Defendants argue that 20 Plaintiff has not presented facts which would allow the Court to reach the conclusion that 21 non-Christians were treated more favorably by Defendants than Christians. (Id.) The Court 22 agrees. Plaintiff only alleges that vaccinated employees were treated more favorably than 23 unvaccinated employees because unvaccinated employees were subject to additional 24 measures to prevent the spread of COVID-19. Plaintiff has not alleged facts sufficient to 25 suggest that this amounts to disparate treatments of Christians, or more favorable treatment 26 of non-Christians. As such, the Court finds that Plaintiff has not pleaded a plausible claim 27 of disparate treatment on the basis of religion. 28 1 B. Retaliation 2 Plaintiff’s second cause of action alleges retaliation under Title VII. For this claim, 3 Plaintiff must show that: (1) she engaged in protected activity, (2), she suffered an adverse 4 employment action, and (3) the two are causally linked. See Porter v. Cal. Dep’t of Corr., 5 419 F.3d 885, 894 (9th Cir. 2005). To establish a causal connection between her protected 6 activity and the adverse actions, a plaintiff may allege direct or circumstantial evidence 7 from which causation can be inferred, such as an employer’s “pattern of antagonism 8 following the protected conduct,” id. at 895, or the temporal proximity of the protected 9 activity and the occurrence of the adverse action. Pardi v. Kaiser Found. Hosp., 389 F.3d 10 840, 850 (9th Cir. 2004); Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003). 11 As with before, Plaintiff has adequately pleaded the first two elements of a 12 retaliation claim. Plaintiff filed a claim with the EEOC—a protected activity—and then 13 suffered the adverse employment action of termination. The issue is whether Plaintiff has 14 plausibly alleged that the two are causally linked. 15 Plaintiff’s Exhibit H, attached to her FAC, shows that—after some back-and-forth 16 through e-mails regarding the Accommodation Form—Plaintiff informed Defendants’ 17 Preboarding Coordinator Pang Her on March 23, 2022 that Plaintiff would file a charge of 18 discrimination to the EEOC. (Doc. 19 at 61). Plaintiff received a response on March 25 19 from Sarah Lee, a Senior Recruiter for Defendant Mayo Clinic Arizona, informing Plaintiff 20 that Plaintiff was required to complete the Accommodation Form, and failure to complete 21 the form would be considered a “back out of hire.” (Id. at 64). A subsequent e-mail from 22 Sarah Lee stated that “I will be plan [sic] to process the back out of hire next week unless 23 I hear that you plan to complete the form.” (Id. at 66). 24 Although the temporal proximity of Plaintiff’s protected activity and her 25 termination support Plaintiff’s retaliation claim, the e-mails suggest that Plaintiff’s refusal 26 to fill out the Accommodation Form, rather than Plaintiff’s filing of an EEOC charge, was 27 the cause of her termination. It is apparent that Defendants’ policy required employees to 28 either receive COVID-19 vaccination or obtain an exemption from that policy. When 1 Plaintiff refused to do either, Defendants warned Plaintiff that she could be terminated. 2 Plaintiff has not plausibly alleged that the filing of her EEOC complaint and her 3 termination are causally linked; as such, the Court finds that Plaintiff has not pleaded a 4 prima facie case of retaliation. 5 C. Pregnancy discrimination 6 Plaintiff’s final claim alleges that Defendants discriminated her based on her 7 pregnancy. (Doc. 19 at 16). Under the Pregnancy Discrimination Act, “for all Title VII 8 purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination 9 because of her sex.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 10 684 (1983). Therefore, to establish a prima facie case of pregnancy discrimination, Plaintiff 11 must plead a prima facie case of sex discrimination, showing that: (1) she belongs to a 12 protected class; (2) she was qualified for her position; (3) she was subject to an adverse 13 employment action; and (4) similarly situated individuals outside her protected class were 14 treated more favorably.” Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th Cir. 2008). 15 These are the same elements as those of Plaintiff’s disparate treatment claim. 16 The Court agrees with Defendants that Plaintiff still has not pleaded a plausible claim 17 of pregnancy discrimination. Plaintiff’s FAC does not differ significantly from Plaintiff’s 18 initial Complaint with regards to this claim, and the Court dismissed Plaintiff’s initial 19 Complaint because Plaintiff failed to allege the fourth element of a prima facie case. 20 Plaintiff’s FAC does not adequately allege that individuals outside her protected class were 21 treated more favorably by Defendants. Plaintiff’s pleadings show that Plaintiff and 22 Defendants communicated about the exemption form well before Plaintiff notified 23 Defendants of her pregnancy, and Plaintiff was ultimately terminated due to her refusal to 24 fill out the online form. There is no indication in the pleadings that Plaintiff’s pregnancy 25 was a factor in her termination. Because the factual allegations do not allow the Court to 26 draw any reasonable inference that Defendants are liable for pregnancy discrimination, the 27 Court therefore grants Defendants’ Motion to Dismiss as it relates to Plaintiff’s Title VII 28 claim of pregnancy discrimination. 1 D. Proper Defendant 2 Defendant Mayo Clinic continues to maintain that it is not a proper defendant to this 3 || case because Plaintiff was hired by Mayo Clinic Arizona, a separate corporate entity. (Doc. 4|| 25 at 16-17). Because the Court dismisses Plaintiff's FAC without leave to amend, the 5 || Court need not address whether Defendant Mayo Clinic is a proper defendant. 6 IV. CONCLUSION 7 The Court finds that Plaintiff has not stated plausible claims under Title VII. The 8 || Court therefore grants Defendants’ Motion to Dismiss and dismisses Plaintiff’s First || Amended Complaint without further leave to amend. 10 Accordingly, 11 IT IS HEREBY ORDERED granting Defendants’ Motion to Dismiss. (Doc. 25). 12 IT IS FURTHER ORDERED dismissing without prejudice Plaintiff's First 13 || Amended Complaint. (Doc. 19). 14 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this case. 15 Dated this 15th day of December, 2023. 16 M7 □□□ Z.. - WV, veer, 18 Hdhorable Stephen M. McNamee 19 Senior United States District Judge 20 21 22 23 24 25 26 27 28 -15-