SCOTT BARTHOLOMEW v. STATE OF WASHINGTON (2024)

ORDER GRANTING MOTION TO DISMISS (DKT. NO. 30)

I INTRODUCTION

This matter comes before the Court on Defendants’ motion to dismiss Plaintiff's amended complaint. (Dkt. No. 30).¹ Upon review of that motion, the Plaintiff's response (Dkt. No. 34) and Defendant's reply (Dkt. No. 35), the court GRANTS the motion, DISMISSES the second amended complaint, and DENIES leave to amend.²

II BACKGROUND

This is a case under Title VII and the Washington Law Against Discrimination (WLAD) alleging Defendants discriminated against Plaintiff based on his religion.

According to the amended complaint, Plaintiff Scott Bartholomew was hired by DSHS in 2007. (Dkt. No. 28 at 4.) In 2016, he was promoted to Regional Fraud Manager (“RFM”). (Id.) In March 2020, Defendants closed all DSHS offices and directed its employees to work 100% remotely. (Id.) DSHS informed employees on August 9, 2021, that by proclamation of Governor Jay Inslee, all state employees were required to be fully vaccinated by October 18, 2021, or face separation from employment (the “Proclamation”). (Id. at 5.) DSHS offered a religious accommodation request form for those requesting an exemption from the vaccine mandate based on religious beliefs, which Bartholomew completed and returned that same day. (Id.) On August 23, 2021, DSHS sent staff a revised and updated set of religious accommodation request forms, which Bartholomew completed and returned the next day. (Id. at 6.)

On September 8, 2021, HR informed Bartholomew via email that DSHS had determined his religious exemption was based on a sincerely held religious belief and that said belief prevented him from being vaccinated. (Id. at 8.) The email informed Bartholomew that after careful review of his job classification, essential functions, and working environment, the only reasonable accommodation available was the possibility of reassignment. (Id.) Plaintiff was directed to submit a reassignment request and to submit an updated resume by 5:00 PM on September 13, 2021. (Id. at 8–9.) The email stated: “There are no other accommodations for your position available which sufficiently mitigate or eliminate the risk associated with having an unvaccinated employee performing the essential functions of your position.” (Id.) Bartholomew responded directly to HR via email indicating his firm belief that he could continue to work remotely in his current position. (Id.)

On September 10, 2021, Bartholomew tested positive for Covid-19 and subsequently became very ill with pneumonia and other breathing difficulties. (Id.) On September 13, 2021, Bartholomew received another email from HR advising they could not accommodate him in his current position, explaining he was to submit a reassignment request and provide an updated resume by 5 p.m. (Id. at 9.) Instead of providing a resume or submitting a reassignment request, Bartholomew responded indicating again he firmly believed that he could continue to work remotely in his then-current position. (Id.)

On September 28, 2021, HR sent Bartholomew a notice of intent to separate for non-disciplinary reason and directed him to obtain the first dose of the Covid-19 vaccine by October 4th if he wished to continue his employment. (Id. at 16.) At the time, Bartholomew was still extremely ill with pneumonia due to contracting Covid-19. (Id.) On October 5th, Bartholomew responded stating he would not receive the vaccine and had “no desire to be reassigned or transferred to a different position.” (Id.) He was terminated October 18, 2021. (Id. at 17.)

III DISCUSSION

A. Legal Standard

Defendants move to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 16.) On a motion to dismiss for failure to state a claim, the Court must accept as true all well-pleaded factual allegations and construe the allegations in favor of the non-moving party. See Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012). The Court need not, however, assume the truth of conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.

B. Title VII and WLAD failure to accommodate claims

To allege a prima facie case of religious discrimination under Title VII, a plaintiff must plead that “(1) a bona fide religious belief of the employee conflicted with an employment policy; (2) the employee informed the employer of the conflict; and (3) the employee was penalized in some way because of the conflict.” E.E.O.C. v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 614 (9th Cir. 1988). Once a plaintiff has alleged a prima facie case of religious discrimination, it is the employer's burden to “establish that it initiated good faith efforts to accommodate the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship.” Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002) (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993)).

Similarly, a plaintiff establishes a prima facie claim of failure to accommodate religious practices under WLAD by showing that (1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties; (2) he or she informed the employer of the beliefs and the conflict; and (3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment. Kumar v. Gate Gourmet Inc., 325 P.3d 193, 203 (Wash. 2014). WLAD uses the same burden shifting test as Title VII to determine whether an employer has failed to accommodate an employee's religious beliefs and the Court therefore focuses its analysis on the Title VII case law. See id.

This Court previously found Bartholomew's first complaint did not properly plead a failure to accommodate claim. (Dkt. No. 27 at 7–8.) First, it did not specify a bona fide religious belief conflicting with the vaccination policy. (Id. at 6.) Second, it failed to identify that he was denied an accommodation because, after receiving an offer of potential reassignment, Bartholomew failed to submit a resume by the deadline specified in the religious accommodation notice. (Id. at 9.) In particular, DSHS's religious accommodation notice specifically advised Plaintiff he must submit a resume and update his contact information to be considered for reassignment.³ (Dkt. No. 24 at 5.) DSHS further noted that it “will make a good faith effort to find you a position through the reassignment process.” (Id.) Despite receiving this offer of potential reassignment, Plaintiff failed to submit a resume by the deadline specified in the religious accommodation notice and instead sought to negotiate with HR so that he could continue to work remotely. Based on these facts, the Court found Plaintiff did not adequately state a failure to accommodate claim under Title VII or WLAD. (Dkt. No. 27 at 10.)

In response to the motion to dismiss the amended complaint for the same reason, Plaintiff focuses on Defendants’ inability to demonstrate undue hardship to accommodate Plaintiff. (Dkt. No. 34 at 24.) He argues that his belief that he could be accommodated in his then-current position required “a discussion,” and that Defendants were under an obligation to demonstrate an undue hardship resulting from maintaining Bartholomew in his position. (See Dkt. No. 34 at 29.)

Title VII requires employers to accommodate the religious practice of their employees unless doing so would impose an “undue hardship on the conduct of the employer's business.” Groff v. DeJoy, 600 U.S. 447 (2023) (quoting 42 U.S.C. § 2000e(j)). Because “[u]ndue hardship is an affirmative defense,” Rule 12(b)(6) “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.’ ” Zimmerman v. PeaceHealth, No. 22-cv-05960, 2023 WL 7413650, at *6 (W.D. Wash. Nov. 9, 2023) (citing Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 1215, 1224 (9th Cir. 2023) (internal quotation marks and citations omitted)).

However, if Defendants offered a reasonable accommodation, the undue hardship inquiry becomes irrelevant; they need not present an affirmative defense and demonstrate undue hardship if they offered an accommodation the Plaintiff rejected. See Miller v. Port Auth. of New York & New Jersey, 788 F. App'x 886, 889 (3d Cir. 2019) (“Simply put, when the employer offers any reasonable accommodation, the statutory inquiry is at an end.”). As previously concluded, Plaintiff failed to make a good faith attempt to cooperate with his employer's suggested accommodation as he failed to submit a resume by the deadline specified in DSHS's religious accommodation notice. (Dkt. No. 27 at 10.)

Plaintiff admits reassignment may be a reasonable accommodation but argues the “possibility of reassignment” and “reassignment” are not the same. (Dkt. No. 34 at 26–28.) Plaintiff emphasizes he does not expect “an employer must guarantee that they will find an employee a new job if an offer of reassignment is to constitute a reasonable accommodation.” (Id. at 28) (citing Dkt. No. 27 at 9.) Rather, Plaintiff argues the “absence of discussion” between Defendants and Bartholomew during the accommodation process constitutes a failure to accommodate because “[h]e was entitled to a discussion.” (Id. at 28.)

Plaintiff cites EEOC guidance, which states “religious accommodation requests ‘involve[ ] an interactive process that requires participation’ of employer and employee. Indeed, ‘as a practical matter it can be important’ for an employer ‘to conduct a discussion with an employee before making a determination on an accommodation request.’ ” (Dkt. No. 34 at 28) (citing EEOC Compliance Manual § 12-IV.A.2). This guidance does not provide the categorical rule Plaintiff attempts to rely on, and in fact states explicitly the failure to “discuss” cannot, on its own, constitute a Title VII violation. The first sentence of the “Discussion of Request” section cited by Plaintiff states: “Although an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so.” EEOC Compliance Manual § 12-IV.A.2. The guidance continues:

In addition to placing the employer on notice of the need for accommodation, the employee should cooperate with the employer's efforts to determine whether a reasonable accommodation can be granted. Once the employer becomes aware of the employee's religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer's business. This typically involves the employer and employee mutually sharing information necessary to process the accommodation request. Employer-employee cooperation and flexibility are key to the search for a reasonable accommodation. If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective. If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it. Failure to confer with the employee is not an independent violation of Title VII.

Id. EEOC guidance did not “entitle” Bartholomew to a “discussion.” Bartholomew impeded the accommodation by failing to “cooperate with the employer's efforts to determine whether a reasonable accommodation can be granted[,]” and “provide” the “information reasonably needed to evaluate the request[.]” Id. The Supreme Court's recent decision in Groff does not directly abrogate this guidance; Groff clarified the definition of “undue hardship” without commenting on whether Title VII requires employers to engage in discussions with employees about the accommodation—especially under circumstances here, where the employer began the discussion by requesting more information to determine whether a reasonable accommodation was available. Once Defendants determined Bartholomew's religious beliefs were sincerely held and prevented his vaccination, the ball was in Bartholomew's court to provide their requested information to begin the accommodation process. As set forth in the previous order, an employee is required “ ‘to make a good faith attempt to satisfy his needs through means offered by the employer’ ․ after the employer takes the ‘initial step towards accommodating [the employee's] conflicting religious practice’ by suggesting a possible accommodation.” E.E.O.C. v. AutoNation USA Corp., 52 F. App'x 327, 329 (9th Cir. 2002) (emphasis in original) (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1441–1442 (9th Cir. 1993)). Plaintiff's refusal to provide his resume and continued insistence upon his preferred accommodation doomed his original complaint, and as they remain unaltered in his amended complaint, the Court is unable to find he has stated a claim for failure to accommodate. Nor did Plaintiff make any attempt to distinguish AutoNation’s “good faith attempt” requirement in his response to the motion to dismiss.

Even if Bartholomew had submitted his resume, his amended complaint still fails to plead a bona fide religious belief. “[A]n employee's complaint must provide sufficient information about the nature of the employee's beliefs in order to state a claim for Title VII religious discrimination.” Blackwell v. Lehigh Valley Health Network, No. 5:22-CV-03360-JMG, 2023 WL 362392, at *6 (E.D. Pa. Jan. 23, 2023). Although DSHS ultimately found Bartholomew held a religious belief preventing him from complying with the vaccine requirement, that determination does not bind this Court's analysis. This Court pointed out in its previous order that nowhere in Plaintiff's complaint does he state a religious belief conflicting with DSHS's vaccine requirement. (See Dkt. No. 27 at 6.) Bartholomew summarized his religious beliefs on the original religious accommodation request form dated August 17, 2021:

I am a Christian. I am a child of Jesus Christ, the Son of the living God in Him alone I have faith and place my life in His hands. I have hope knowing He sent His Son to be crucified for my sins and rose again to Defeat death. He loves me unconditionally and I am eternally thankful my Lord has shown me mercy and grace.

(Dkt. No. 28 at 5–6.) In response to a question asking how his religious beliefs conflict with the vaccine requirement, he wrote:

I have extremely strong convictions that I would be betraying my faith in the Almighty God if I relented and complied with receiving this mandated vaccine. I feel guided by the Holy Spirit to stand firm in my convictions and beliefs. In Him alone I trust, and He will protect me and comfort me.

(Id. at 6.) Bartholomew also included a statement from his Pastor, which affirmed his membership to his church and Bartholomew's “veracity and sincerity” of his “personal belief in Jesus Christ and the Scriptures.” (Id. at 7.) The pastor went on to state:

A basic and central tenet of the Christian religion—and therefore your religion—is that the Bible is the central authority for the practice of your faith. As it regards the matter at hand, the Bible specifically affirms that we belong to God—Who among other things commands us to glorify Him by keeping our body Holy. Faithful obedience therefore requires us to steward our personal health. As an individual Christian, and as an expression of your belief, you are commanded to not allow anything to enter your body that violates your conscience. To do so would be a direct violation of your religion and your belief.

(Id. at 7.) Found later in the complaint is this statement: “Bartholomew's religious exemption request, like many other religious exemption requests, bases its objection on the vaccine's history and use of fetal cell lines for research and development.” (Id. at 24.) This statement was nowhere to be found in Bartholomew's accommodation requests, emails to HR, or any other communications pertaining to the potential for accommodation. Nor does it seem consistent with Plaintiff's answers on the accommodation request. In response to the question “Have you ever received a vaccination in the past? If so, under what circumstances?” Bartholomew responded: “I received various shots when I was in the US Army and later in my career in law enforcement.” (Dkt. No. 36 at 11.) The next question asked “If your religious tenets do not include objections to all vaccines, please explain why the COVID-19 vaccine is objectionable based upon your religious beliefs while at least some others are not” to which Bartholomew responded:

I place my trust in God alone. He has miraculously created me with a healthy immune system. It is because of the Divine Trinity of God, Jesus and the Holy Spirit that I am naturally immunized. Once again, I strongly feel I would be betraying my faith and my religious beliefs if I relented and complied with receiving a mandated vaccine.

(Id.) If Bartholomew's objection was based on the use of fetal cell lines, he would not have received other vaccinations; or, he would have explained how the vaccinations he previously received were not developed using fetal cell lines or were somehow different from the Covid-19 vaccine in that regard. Instead, when prompted to explain why he received some vaccines and not others, he focused on his belief in his own “natural immunity.”

This does not suffice to establish a prima facie case that Bartholomew maintained a bona fide religious belief against receiving the Covid-19 vaccine, and courts have been reluctant to recognize analogous “natural immunity” beliefs as religious rather than secular. See, e.g., Detwiler v. Mid-Columbia Med. Ctr., No. 3:22-CV-01306-JR, 2022 WL 19977290, at *4 (D. Or. Dec. 20, 2022), report and recommendation adopted, No. 3:22-CV-01306-JR, 2023 WL 3687406 (D. Or. May 26, 2023); Fallon v. Mercy Cath. Med. Ctr. of Se. Pennsylvania, 877 F.3d 487, 492 (3d Cir. 2017) (dismissing a Title VII claim based on a religious objection to the flu vaccine that was derived from the secular/medical belief that a vaccine “may do more harm than good”); Brox v. Hole, 590 F. Supp. 3d 359, 366 (D. Mass. 2022), aff'd in part, vacated in part, remanded, 83 F.4th 87 (1st Cir. 2023) (“the record suggests that plaintiffs’ opposition to receiving the COVID-19 vaccine”—i.e., that God has instilled them with adequate immune systems and a corresponding preference for natural remedies— “is based primarily on philosophical, medical, or scientific beliefs, or personal fears or anxieties rather than bona fide religious practices”) (citation and internal quotations omitted); Mason v. Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 51–52 (2d Cir. 1988) (rejecting parents’ religious objection to the school's vaccination policy on the grounds that their cited belief in the body's ability to self-heal was scientific and/or secular); Geerlings v. Tredyffrin/Easttown Sch. Dist., No. 21-CV-4024, 2021 WL 4399672, at *7 (E.D. Pa. Sept. 27, 2021) (rejecting the plaintiff's religious objection to wearing masks as harmful to the body, stating “it takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious”).

Plaintiff's amended complaint still does not provide a religious reason, based in a bona fide religious belief, for why Bartholomew could not be vaccinated. For the same reasons the failure to accommodate claims in the original complaint were inadequate, this Court finds dismissal of the same claims in the amended complaint appropriate.

C. Title VII and WLAD Hostile work environment claims

In his reply, Plaintiff withdrew his hostile work environment claims. (Dkt. No. 34 at 11.) Counts 2 and 4 are therefore also dismissed.

D. Free exercise claim

Plaintiff's free exercise claim was originally dismissed because Plaintiff pled no facts that plausibly support a claim that the individual defendants took action that caused Plaintiff's First Amendment rights to be burdened. (Dkt. No. 27 at 14–15.) Originally, Plaintiff alleged “Governor Inslee violated the letter of the Proclamation by creating a spirit and practice of hostility toward religious exemption requests and proper accommodations and processes for accommodations.” (Dkt. No. 1 at 29.) This Court found while DSHS employees did not engage with Plaintiff's request to discuss other potential religious accommodations, they were not, as a matter of law, required to further engage with Plaintiff after offering him a reasonable accommodation because he refused to engage with the process by failing to submit a resume. (Dkt. No. 27 at 15.)

Plaintiff did not amend his free exercise claim, instead explaining:

The essence of Plaintiff's arguments with respect to Count Five, the Free Exercise count, have not changed, and while Plaintiff added allegations to his amended complaint, such allegations do not change the essential character of his arguments in that Response. Therefore, Plaintiff requests the Court to reconsider its ruling in light of the additional allegations, all of which speak to Plaintiff's argument that the Plaintiff was targeted because of his religious opposition to the Covid-19 vaccine.

(Dkt. No. 34 at 12.)

Courts in this district deny motions for reconsideration in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. LCR 7(h)(1). Such a motion must be filed within fourteen days after the order to which it relates. LCR 7(h)(2). It “shall point out with specificity the matters which the movant believes were overlooked or misapprehended by the court, any new matters being brought to the court's attention for the first time, and the particular modifications being sought in the court's prior ruling.” LCR 7(h)(2).

Plaintiff failed to meet any of these requirements. Plaintiff's request that this Court reconsider its previous ruling is therefore denied, and his free exercise claim is dismissed for the same reasons outlined in the order dismissing the original complaint. (See Dkt. No. 27 at 14–15.)

E. Leave to Amend

Plaintiff seeks leave to amend his complaint “to the extent the Court finds any aspect of the Complaint lacking[.]” (Dkt. No. 34 at 11 n.1.) Leave to amend shall be given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). In the Ninth Circuit, leave to amend “is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). Five factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

The defects in Plaintiff's amended complaint are the same ones for which the Court previously granted him leave to amend. Having already had an opportunity to address these issues, and failing to do so, leave to amend would be futile and would allow Plaintiff to attempt to re-frame the same set of facts for a third time to the prejudice of Defendants, who would then need to file a third motion to dismiss on the same issues. See, e.g., Castle v. Knowles, No. CV1-08-01267-JAT, 2010 WL 2232394, at *4 (E.D. Cal. June 3, 2010), aff'd, 442 F. App'x 263 (9th Cir. 2011) (denying leave to file second amended complaint where “Defendants will suffer prejudice from [the] undue delay, and they will also be prejudiced by having to file yet another round of motions to dismiss[.]”). Leave to amend is therefore denied.

IV CONCLUSION

Accordingly, and having considered Defendants’ motion, the briefing of the parties, and the remainder of the record, the Court finds and ORDERS that Defendants’ motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED. Plaintiff's request for leave to amend is DENIED.

Dated this 26th day of March, 2024.

FOOTNOTES

1.   Defendants are the State of Washington, Washington State Department of Social and Health Services (“DSHS”), Governor Jay Inslee (“Governor Inslee”) in his individual and official capacity, DSHS Secretary Donald Clintsman (“Secretary Clintsman”) in his individual and official capacity, DSHS Human Resources Director Wendy Long (“HR Director Long”) in her individual and official capacity, Steve Lowe (“Director Lowe”), in his individual capacity and official capacity as the Director of the Office of Fraud and Accountability (“OFA”), and Leah Stahduhar (“Deputy Director Stahduhar”), in her individual capacity and official capacity as the Deputy Director of the OFA.

2.   Pursuant to Local Rule 7(b)(4), the Court finds a decision can be made on the motion without oral argument.

3.   The Court finds that Plaintiff extensively referenced the religious accommodation notice (Dkt. No. 24 at 4–6) and religious accommodation form (Dkt. No. 28) in his complaint and that the documents are therefore incorporated by reference. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.”). The Court may therefore properly consider the documents without converting Defendants’ motion into one for summary judgment.

David G. Estudillo United States District Judge