Laurie DeVore v. Univ. of Ky. Bd. of Trs. ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0233p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
LAURIE ANN DEVORE,
│
Plaintiff-Appellant, │
> No. 23-5890
│
v. │
│
UNIVERSITY OF KENTUCKY BOARD OF TRUSTEES, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:22-cv-00186—Gregory F. Van Tatenhove, District Judge.
Argued: June 25, 2024
Decided and Filed: October 11, 2024
Before: WHITE, STRANCH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Anthony J. Bucher, GATLIN VOELKER, PLLC, Covington, Kentucky, for
Appellant. Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC,
Lexington, Kentucky, for Appellee. ON BRIEF: Anthony J. Bucher, GATLIN VOELKER,
PLLC, Covington, Kentucky, for Appellant. Bryan H. Beauman, Savannah G. Baker,
STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E.
Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Laurie DeVore retired from her post at the
University of Kentucky rather than comply with its COVID-19 test-or-vaccinate policy.
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She then filed this lawsuit, alleging that the Policy conflicted with her sincerely held religious
beliefs and that the University’s failure to accommodate those beliefs violated Title VII of the
Civil Rights Act of 1964. The district court granted summary judgment for the University. We
AFFIRM.
I. BACKGROUND
Laurie DeVore worked for the University of Kentucky from 1999 to 2022. She started as
a part-time employee and ultimately became a department manager in the Office for Policy
Studies on Violence Against Women, or “the Office.” DeVore performed successfully
throughout her tenure at the University, but began clashing with the school over return-to-
campus policies it implemented in the wake of the COVID-19 pandemic. The University
transitioned to remote operations at the onset of the pandemic, functioning remotely for over a
year. It then announced in June 2021 that classes would return to campus for the 2021-2022
academic year. This announcement, and the policies and procedures the University would later
implement alongside it, prompted DeVore to submit a series of requests seeking to be excused
from the University’s return-to-campus protocols.
A. DeVore’s Hybrid Work Request
On June 21, 2021, the University informed employees that it would be “returning to
normal operations” with “health, safety and well-being” serving as a “governing priority.” It
directed employees with “a disability or a documented health risk” to file a “Request for
Reasonable Accommodation” with the University’s Office of Institutional Equity and Equal
Opportunity. It also invited employees to submit requests for hybrid or remote work schedules
that would be evaluated case-by-case.
DeVore requested a hybrid work arrangement in response to this announcement, asking
for a weekly schedule of three days in-office and two days at-home. The request explained that
DeVore’s job involved “times of high stress and long hours” and that a “hybrid work format
would ensure a considerable reduction of that stress as well as peace of mind.” It added that a
“hybrid work arrangement” would also “be beneficial” for her and the Office because it would
offer her “uninterrupted time to focus” on the detail-oriented elements of her job. The University
No. 23-5890 DeVore v. Univ. of Ky. Bd. of Trs. Page 3
denied DeVore’s request, determining that all department managers would be expected “on
campus full-time and in-person beginning in August” 2021, subject to “specific health and safety
concerns.”
B. DeVore’s Religious Exemption Requests
The University supplemented its return-to-campus announcement with an August notice
laying out the safety protocols that would accompany its return to on-campus operations. The
University adopted a test-or-vaccinate policy—“the Policy”—mandating weekly COVID testing
for unvaccinated faculty, staff, and students. The Policy required unvaccinated campus patrons
to undergo testing “on a weekly basis” but excused those who were “fully vaccinated” from
regular testing.
DeVore submitted a series of requests seeking a religious exemption from the test-or-
vaccinate policy. She emailed her first exemption request to the University on October 1, 2021.
The email explained that DeVore was unvaccinated and that to comply with the Policy she
would have to “obtain weekly COVID-19 PCR testing until I accept the vaccination.” She
represented that, “My sincere religious beliefs require that I refuse to accept the vaccine which
would mean subjecting myself to regular, repeated medical interventions against my will, that
are not without risks to my person, in order to coerce me into doing something I simply cannot
do.” She concluded by stating, “I am sending this email to request a religious exemption.” The
University denied the request.
DeVore sent a second request on October 4, 2021, reiterating her appeal for a religious
exemption and attaching a memorandum explaining her objection to the Policy. The memo
articulated DeVore’s belief that the testing requirement was designed to coerce unvaccinated
employees into accepting the vaccine, relayed medical data from the Centers for Disease Control
and Prevention and the Food and Drug Administration on vaccine efficacy, and explained that
she would not provide informed consent to participate in COVID testing. DeVore emphasized
that COVID testing imposed “potential” health and safety risks, and protested that the University
had not disclosed whether PCR testing caused “shortness of breath, headaches, nausea,
respiratory irritation, perforation of the thin membrane that separates the sinus cavity from the
No. 23-5890 DeVore v. Univ. of Ky. Bd. of Trs. Page 4
brain cavity, and wounds and inflammation of the nasal passage which would compromise a
person’s first line of defense against viruses, bacteria, fungi, etc.” The University again denied
DeVore’s request.
DeVore emailed a third exemption request on October 8, 2021, once more supported by a
memorandum discussing her position on the Policy. This memo focused on the Policy’s failure
to adequately solicit informed consent from campus patrons subject to the University’s testing
requirements. It described COVID testing as “medical experimentation,” characterizing it as
conscripting human research subjects into participating in a medical experiment without consent.
It referenced a variety of University, federal, and international standards that, in DeVore’s view,
mandatory COVID testing violated. The University denied DeVore’s request for a third time.
C. DeVore’s Religious Accommodation Request
Following the University’s categorical denial of her religious exemption requests,
DeVore submitted a religious accommodation request and filed a complaint of religious
discrimination. DeVore’s accommodation request sought an “accommodation due to a conflict
between” her “religious beliefs” and her “work.” It explained that “God expects me to honor
Him by taking care of my person to the best of my ability” and that the “COVID-19 vaccines and
the repeated testing medical procedures, go against my sincerely held beliefs.” It requested a
fully remote work schedule to accommodate this conflict. The corresponding complaint asserted
that denying her relief from the test-or-vaccinate policy amounted to religious discrimination.
The University’s Office of Institutional Equity and Equal Opportunity opened a case to
assess DeVore’s accommodation request and accompanying discrimination complaint. The
investigation included interviews conducted by one of the University’s Title IX coordinators
with an assistant dean at the University, DeVore’s supervisor in the Office, and DeVore herself.
DeVore also provided a supplemental memorandum as part of the investigation that aggregated
her prior objections to the Policy. The University concluded its investigation by denying
DeVore’s request and issuing a letter directing DeVore to begin complying with the Policy. The
letter also clarified that DeVore could comply with the Policy through oral swab or saliva testing
in lieu of the nasal swab tests to which she had previously objected.
No. 23-5890 DeVore v. Univ. of Ky. Bd. of Trs. Page 5
DeVore responded with an email explaining that the alternative testing methods would
not resolve her religious conflicts with the Policy. She asserted that oral swab and saliva testing
were “not reasonable in light of my religious concerns.” The University replied, explaining that
it had understood DeVore’s testing objections to be specific to the invasive nature of the nasal
swab test and that it had offered the alternative testing options to remedy that objection. It
concluded that, nonetheless, the University could not accommodate DeVore’s request and again
instructed DeVore to comply with the Policy.
The University’s characterization of DeVore’s COVID testing objection prompted
another response from DeVore. DeVore accused the University of deliberately misconstruing
her requests and reiterated her position that the Policy was a form of coercion. The University
responded again, thanking DeVore for offering clarification but confirming that it did not change
the University’s conclusion that her request could not be accommodated. The University invited
DeVore to “apply for a remote work position with the University” if she continued to object to
its on-campus requirements.
D. Procedural History
DeVore did not apply for another position with the University but instead continued
working in the Office while violating the Policy. Over the following weeks, the University
issued DeVore four notices of noncompliance. The fourth notice informed DeVore that she
would be placed on a period of unpaid administrative leave until she adhered to the Policy.
DeVore declined to comply with the Policy during the leave period, and the University
ultimately notified her that she would be terminated as a result. The notification also informed
DeVore that she met the criteria for retiring from the University and that, should she do so, she
would “be separated in good standing” and eligible to receive any corresponding benefits.
DeVore elected this option and retired in January 2022.
Six months after retiring, DeVore filed this lawsuit, charging the University with failing
to accommodate her religious beliefs in violation of Title VII of the Civil Rights Act. After a
period of discovery, the parties cross-moved for summary judgment. DeVore attached no sworn
testimony of her own to support her motion for summary judgment or oppose the University’s,
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relying exclusively on the testimony of others and on her previous correspondence with the
school. The district court granted the University’s motion and denied DeVore’s. DeVore
appeals the portion of the court’s order granting the University’s motion.
II. LEGAL STANDARD
A district court’s grant of a motion for summary judgment is reviewed de novo. Tepper
v. Potter, 505 F.3d 508, 513 (6th Cir. 2007). Summary judgment is proper when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if, taking the evidence in the light
most favorable to the non-moving party and drawing all reasonable inferences in that party’s
favor, “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Parties must go “beyond the pleadings” in advancing, or defending against, a summary
judgment motion. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2721 (4th ed. June 2024 Update). Movant and opponent alike “must support their
factual positions either by directing the court’s attention to materials in the record or by showing
that the cited materials do not establish the presence or absence of a genuine dispute or that the
opposing party cannot produce any admissible evidence to support the fact.” Id.; see Viet v. Le,
951 F.3d 818, 822–23 (6th Cir. 2020). “Conclusory statements unadorned with supporting facts”
will not do. Viet, 951 F.3d at 823 (quoting Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir.
2009)). “Just as a plaintiff may not rely on conclusory allegations to proceed past the pleading
stage, so too a plaintiff may not rely on conclusory evidence to proceed past the summary-
judgment stage.” Id. (citations omitted). Ultimately, the court must “examine the pleadings to
ascertain what issues of fact they present and then consider the affidavits, depositions,
admissions, interrogatory answers and similar material to determine whether any of those issues
are real and genuine.” Wright & Miller, supra, § 2721.
III. ANALYSIS
Title VII of the Civil Rights Act makes it “an unlawful employment practice for an
employer” to “discriminate against” a covered employee because of the employee’s religion.
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42 U.S.C. § 2000e-2(a). To comply with the Act, an employer must “reasonably accommodate”
an employee’s “religious observance” and “practice” unless doing so would impose an “undue
hardship on the conduct of the employer’s business.” Id. § 2000e(j).
Claims under these provisions are, at the summary judgment stage, analyzed in two steps.
At the first step, the employee must establish a prima facie case of religious discrimination.
Tepper, 505 F.3d at 514. The employee does so by demonstrating that (1) the employee has “a
sincere religious belief that conflicts with an employment requirement;” (2) the employer was on
notice “about the conflicts;” and (3) the employee “was discharged or disciplined for failing to
comply with the conflicting employment requirement.” Id. At the second step, the employer
must show that accommodating the employee’s religion would impose an undue hardship. Id.
The employer does so by demonstrating that the accommodation would impose a “substantial”
burden “in the context of [the] employer’s business.” Groff v. DeJoy, 600 U.S. 447, 471 (2023).
The only element of the prima facie case at issue here is whether DeVore has established that the
Policy conflicts with her sincere religious beliefs.
Title VII protects “all aspects of religious observance and practice[.]” Lucky v.
Landmark Med. of Michigan, P.C., 103 F.4th 1241, 1243 (6th Cir. 2024) (quoting E.E.O.C. v.
Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771-72 (2015)). Its coverage attaches to
practices rooted in “religious principle,” but not to purely secular beliefs, such as those that are
“essentially political, sociological, or philosophical,” a matter of personal preference, or the
product of “a merely personal moral code.” Welsh v. United States, 398 U.S. 333, 342–43
(1970) (plurality opinion) (quoting United States v. Seeger, 380 U.S. 163, 172 (1965)) (Universal
Military Training and Service Act); see Holt v. Hobbs, 574 U.S. 352, 360–61 (2015) (Religious
Land Use and Institutionalized Persons Act of 2000); Wisconsin v. Yoder, 406 U.S. 205, 215–16
(1972) (First Amendment); New Doe Child #1 v. Cong. of U.S., 891 F.3d 578, 587 (6th Cir.
2018) (Religious Freedom Restoration Act).1 A religious belief “need not be acceptable, logical,
1
See also U.S. E.E.O.C., What You Should Know About COVID-19 and the ADA, the Rehabilitation Act,
and Other EEO Laws § L.2 (last updated May 15, 2023) (“Title VII does not protect social, political, or economic
views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on
social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the
possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII.”);
accord Fallon v. Mercy Cath. Med. Ctr. of Se. Pa., 877 F.3d 487, 492 (3d Cir. 2017).
No. 23-5890 DeVore v. Univ. of Ky. Bd. of Trs. Page 8
consistent, or comprehensible to others in order to merit” protection, and Title VII is agnostic to
the reasonableness “of the particular belief or practice in question.” See Thomas v. Rev. Bd. of
Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). The judicial task in assessing evidence of a
religious conflict is narrow, but courts must nevertheless ensure the asserted conflict is “sincerely
based on a religious belief,” rather than “some other motivation,” Holt, 574 U.S. at 360–61, and
that the belief actually conflicts with a workplace policy, New Doe Child #1, 891 F.3d at 587.
DeVore asserts a conflict between her sincerely held religious beliefs and the
University’s “requirement that on-campus employees either get the Covid vaccine or submit to
weekly mandatory Covid testing.” The University’s default testing protocol used nasal
polymerase chain reaction, or nasal “PCR,” COVID tests. DeVore’s religious discrimination
complaint, however, prompted the University to clarify that DeVore could comply with the
Policy using “an oral swab test or a saliva test.” DeVore’s prima facie case must therefore
establish a religious conflict with each of the testing options the University offered—nasal, oral
swab, and saliva.
DeVore relies almost exclusively on email communications with the University to make
her case. Most of DeVore’s emails relay objections to the nasal test and were sent before the
University explained that DeVore could comply with the Policy through other testing
mechanisms. See R. 22-11, 10/4/21 Email, PageID 369 (highlighting risk of “inflammation of
the nasal passage”); R. 22-13, 10/8/21 Email, PageID 373 (objecting to “screening for COVID-
19 through a nasopharyngeal swab”); R. 22-16, 10/15/21 Email, PageID 382 (incorporating
previous objections); R. 22-20, Title IX Memo, PageID 398 (asserting that “repeated testing can
damage the first line of defense God created mankind with”).
Two of DeVore’s emails did, however, respond to the University’s clarification with
objections to the oral swab and saliva tests. The first referred the University to the objections
DeVore had provided in her Title IX memorandum, objections she maintained still applied, and
the second quoted the same objections—neither email introduced any new source of religious
conflict. See R. 22-20, PageID 398 (summarizing objections to Policy); R. 22-23, DeVore
11/4/21 Email, PageID 407 (referring to prior objections); R. 22-27, DeVore 11/15/21 Email,
PageID 418 (quoting prior objections). The Title IX memorandum, now serving as the source of
No. 23-5890 DeVore v. Univ. of Ky. Bd. of Trs. Page 9
DeVore’s religious objections to oral swab and saliva testing, raised three distinct conflicts
between DeVore’s religion and the Policy: the Policy was (1) invasive, (2) manipulative, and
(3) coercive.
DeVore’s first objection to the Policy was that the invasiveness of the University’s
testing procedures interfered with her religious obligation to treat her body as a “temple.” She
explained that “repeated testing can damage the first line of defense God created mankind with
and could provoke immediate or long-term health issues, putting a healthy person without
symptoms at risk. That probability increases every time it is performed.” DeVore later
acknowledged in her deposition, however, that there “was no invasiveness regarding the saliva
test” and that she did not “know what was entailed in . . . the oral swab” test, admitting that she
did not “research what the oral swab test entailed.” Given these concessions, DeVore has
established no conflict between the Policy and any religious objections she may have to invasive
medical procedures.
DeVore also objected to the Policy on the alternative basis that it was manipulative. The
Policy, she maintained, was “being used to manipulate me into taking the ‘vaccine.’” It “is not,”
in fact, “a vaccine,” she continued, but rather “gene therapy that contains harmful and wrong
substances” she could not ingest consistent with her religious beliefs. Yet the University
consistently and repeatedly invited DeVore to undertake a testing regimen that would permit her
to remain unvaccinated, and DeVore has offered no evidence to support the proposition that the
Policy denied her a bona fide choice between testing and vaccination. DeVore therefore cannot
demonstrate a conflict between her religion and the Policy solely by bootstrapping her testing
objections to her vaccine objections.
DeVore’s final objection to the Policy was that it was “being used as a form of coercion.”
She explained that coercion is “morally and ethically inappropriate by the laws of the land and,
most importantly, in the sight of God,” elaborating that “[c]oercion, incentives, guilt, penalties,
being forced to participate in an experiment with no right to choose, no truly informed consent. It
goes against justice, righteousness, all that is honorable and true, therefore it goes against all that
God is and how He would have me live.” She underscored that COVID testing was “wrong on
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so many levels” and that it “should not be forced on any individual who chooses not to
participate.”
The University explored the nature of DeVore’s coercion objection with her at her
deposition, where she broke it out across two dimensions. The first dimension she identified was
the Policy’s attempt to “coerce [her] to get vaccinated,” an effort she said would “coerce me into
doing something I simply cannot do.” Such coercion, she explained, was “wrong” because
“[t]rying to manipulate somebody into doing something to attain a result that you want by
holding something over them” is “not right behavior.” DeVore’s explanation of this dimension
of the coercion objection repackages her manipulation concern. Again, however, that cannot
alone establish a conflict between her religion and the Policy because DeVore has adduced no
evidence supporting her claim that the Policy had the practical effect of coercing her to vaccinate
rather than test.
The second dimension of coercion DeVore raised was the Policy’s design “to coerce
[her] to get tested.” DeVore reasoned that mandatory employment requirements, like the Policy,
are inherently coercive because she “would lose [her] job” unless she complied. She
acknowledged that employers routinely maintain a range of compulsory employment
requirements, a general practice to which she did not object, but she drew the line at policies that
were not “equitable” or “fair.” This second dimension of DeVore’s coercion objection applies to
oral swab and saliva testing, but it turns only on DeVore’s view that mandatory testing is
inequitable and unfair. DeVore drew no connection between her fairness conclusion and any
“religious principle” she follows, leaving it simply to reflect her “personal moral code.” Welsh,
398 U.S. at 342–43 (quoting Seeger, 380 U.S. at 172). DeVore’s “subjective evaluation” of the
Policy against this rubric of “secular values” does not establish a religious conflict with the
Policy. Yoder, 406 U.S. at 216.
DeVore offers no other evidence to show a conflict between her religion and the Policy.
She supplied no affidavit or declaration articulating how complying with the Policy conflicts
with her religious beliefs or practices. She entered none of her own deposition testimony in the
record to add color to the excerpts the University provides. She filed a six-page complaint,
which in any event is unverified, that included only the conclusory statement that “due to her
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deeply held religious beliefs,” she “objected to mandatory Covid testing.” DeVore has, in fact,
throughout this litigation never identified in the record what her religion is.
In the end, DeVore’s religious opposition to the Policy flows almost entirely from her
objections to nasal PCR testing and vaccination, objections she raised before the University
informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to
account for these alternatives. Her invasiveness objection responds only to nasal swab testing,
her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her
coercion objection doubles down on her manipulation objection, supplementing it with only her
“personal” characterization of mandatory testing as inequitable and unfair. Yoder, 406 U.S. at
216. These objections may have been enough to satisfy Title VII’s pleading requirements. See
Lucky, 103 F.4th at 1242–44; Savel v. MetroHealth Sys., 96 F.4th 932, 942–44 (6th Cir. 2024);
Passarella v. Aspirus, Inc., 108 F.4th 1005, 1008–12 (7th Cir. 2024); Ringhofer v. Mayo Clinic,
Ambulance, 102 F.4th 894, 900–02 (8th Cir. 2024). But they fail at summary judgment to
establish a conflict between DeVore’s religion and the Policy. DeVore’s Title VII claim fails
with them.
IV. CONCLUSION
For these reasons, we AFFIRM.