Scafidi v. B. Braun Medical, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

COURTNEY SCAFIDI,

Plaintiff,

v. Case No. 8:22-cv-2772-VMC-TGW

B. BRAUN MEDICAL, INC.,

Defendant.

______________________________/

ORDER

This matter comes before the Court pursuant to Plaintiff

Courtney Scafidi’s Motion for Partial Summary Judgment (Doc.

# 54) and Defendant B. Braun Medical, Inc.’s Motion for

Summary Judgment (Doc. # 60), both filed on October 17, 2023,

in this Title VII and Florida Civil Rights Act (FCRA)

religious discrimination and retaliation case. Both parties

have responded (Doc. ## 69, 70) and replied. (Doc. ## 74,

75). For the reasons that follow, Braun’s Motion is granted

in part and denied in part, and Scafidi’s Motion is denied.

I. Background

A. Braun’s Business and Vaccine Policy

Braun is “a full line supplier of IV therapy products,

including IV solutions, drug delivery systems, vascular

access devices [], and infusion pumps,” which Braun markets

and sells to hospitals and medical providers throughout the

country. (Grispo Decl. ¶ 3). Scafidi worked as a Senior

Hospital Account Manager for Braun in Florida. (Scafidi Depo.

at 63:10-64:12 & Ex. 6). This was a sales position, and

Scafidi’s job duties included making in-person, on-site sales

of IV systems to clinical staff and hospital management at

facilities within her territory and ensuring her customers

were trained on these systems. (Id. at 63:10-66:25). Prior to

the COVID-19 pandemic, Scafidi spent most of her “time ‘on

site’ at hospitals within [her] territor[y].” (Grispo Decl.

¶ 5). There were just over 100 hospitals in Scafidi’s

territory. (Id.).

When the COVID-19 pandemic began in 2020, most hospitals

barred sales representatives from entering hospitals. (Id. at

¶ 6). This had a large impact on Braun’s sales operations.

(Scafidi Depo. at 66:22-67:23; Lutseo Depo. at 21:12-23; Malo

Depo. at 74:22-76:1). Prior to the vaccine, hospitals slowly

began allowing vendor representatives to reenter healthcare

facilities, but only when essential and under strict

conditions, i.e., masking requirements and distancing.

(Grispo Decl. at ¶ 7). Braun restarted some new sales

operations but was unable to resume its full array of pre-

pandemic work, including the work performed by Scafidi. (Malo

Depo. at 80:9-22). The goal was always to resume normal

operations to continue to thrive as a company. (Id.). During

the pandemic and before her termination in November 2021,

Scafidi was mostly working from home and rarely going into

hospitals. (Malo Depo. at 74:11-76:18).

COVID-19 vaccines became available in early 2021. During

this time, Braun constantly monitored the pandemic and its

fluid effect on both its workforce and its customers. (Malo

Depo. at 32:4-15; Grispo Decl. at ¶ 8). As the vaccine rollout

became more widespread, some of Braun’s customers and vendor

credentialing services informed Braun that certain hospitals

would soon require vendor employees (like Scafidi) to be fully

vaccinated before entering patient facilities. (Lutseo Depo.

at 24:21-27:23; Grispo Decl. at ¶ 9).

Scafidi disputes that all hospital systems within her

territory had or were planning to implement vaccine

requirements for visiting salespeople. (Lutseo Depo. at 32:6-

19; Scafidi Depo. at 85:17-86:15). She also highlights that

many of the hospital systems in her territory allowed for

religious exemptions to the vaccine with Scafidi able to

submit exemption requests through each hospital system’s

vendor credentialing system. (Scafidi Depo. at 85:17-86:15,

87:7-8). While most hospitals, through credentialing

services, offered forms to allow vendor employees to request

exemptions, they offered no guarantee that any healthcare

facility would accept or accommodate any exemption to allow

a vendor representative to perform the essential customer-

facing functions of his or her job. (Lutseo Depo. at 22:9-

23:2; 40:9-25).

Braun issued its own vaccination policy for customer-

facing employees working in patient-care settings on

September 21, 2021. (Donigan Depo. at 14:22-15:3 & Ex. E).

The policy provides in relevant part:

As such, we will now require most field-based and

customer-facing colleagues across the region to

complete the full course of COVID-19 vaccination.

This includes sales, clinical educators (including

temps), clinical nurse consultants, clinical

applications specialists, service technicians,

marketing product managers, and marketing project

managers or other employees who are required to

visit customers as part of their normal job

responsibilities. If you have received this email,

you are required to be fully vaccinated against

COVID-19 as part of your job responsibilities by

Monday, November 1, 2021.

(Id.). Attached to the email with this policy was a FAQ page.

(Id.). The FAQ informed employees that they could apply for

an exemption from the policy. (Id.). It also informed

employees, under the question “Can I apply for another B.

Braun role if I don’t get vaccinated?,” that “[e]mployees can

apply for other non-customer-facing opportunities in

accordance with the job posting policy, keeping in mind the

deadline of November 1, 2021.” (Id.).

According to Joe Grispo, Braun’s Senior Vice President

of Sales and Chief Sales Officer, “[t]he decision to limit

the scope of the mandatory policy to employees in patient-

care settings was an attempt by [] Braun to balance on the

front-end many competing interests, including the need as a

healthcare company to trust healthcare science; to keep the

health and safety of vulnerable patient populations top-of-

mind; to respect the health, safety, and rights of its

employees; and to maintain its competitiveness in the

marketplace by ensuring its salesforce was resuming pre-COVID

operations as would be its competitors.” (Grispo Decl. at ¶

11). Grispo avers that “Braun further determined that an undue

burden would occur even if an appreciable number of customers

within a given territory would allow employee access without

vaccinations.” (Id. at ¶ 12). “This was because if even one

of an unvaccinated sales representative’s customers or

prospective customers declined to honor a religious exemption

request or decided not to allow for full facility access, it

would create an intractable coverage problem, as well as an

imbalance within the territories and the revenue associated

with the territories for the sales representative and all of

the counterparts with the same title.” (Id.); see also (Malo

Depo. at 84:4-85:8).

According to Grispo, “[e]xtrapolated over the scores of

hospitals within a given territory, the resulting patchwork

quilt of one-off exemptions would be both impossible to track

and impossible to account for under [] Braun’s territorial

compensation system.” (Grispo Decl. at ¶ 13). Thus, “Braun

would need to recalculate the sales dollars, not only from a

geography standpoint, but also from a compensation standpoint

to assure that, all employees were treated equally and that

base salaries equated to the role’s responsibilities.” (Id.).

“Moreover, the fluid and dynamic nature of the vaccine

requirements that were rolling out at the time meant that

[Braun] would have to constantly revamp the territories to

ensure customer coverage and equitable compensation.” (Id.).

Scafidi’s supervisor, Andrea Malo, testified that

reconfigurations of territories to adjust to vaccination

exemptions would have required involvement from compensation

analysts, to build quotas with the Vice President of Sales,

human resources, the Chief Financial Officer, and ultimately

the CEO. (Malo Depo. at 85:9-86:22). When Braun had

reconfigured territories in the past, that restructuring

process had taken “at least 18 months.” (Id. at 87:15-88:6).

For her part, Scafidi notes that her exemption denial

letter did not mention any administrative difficulties or

costs as the reason for the denial. (Doc. # 70-10). Braun’s

corporate representative and Vice President of benefits and

human resources administration, Juliet Vestal, testified that

Braun did not do any analysis to determine the costs of

reconfiguring Scafidi’s territory if any hospitals denied her

admission. (Vestal Depo. at 126:23-127:2). Vestal also

testified that Braun was not aware of any hospital system

that had denied Scafidi access because of her unvaccinated

status. (Id. at 48:1-22). Braun’s employee in charge of

helping salespeople manage vendor credentialing, Kelly

Lutseo, was unaware of whether any of Scafidi’s exemption

requests made to various hospital systems had been denied.

(Lutseo Depo. at 51:2-7).

B. Scafidi’s Exemption Request and Termination

Scafidi applied for a religious exemption from Braun on

September 24, 2021. (Scafidi Depo. at 125:5-129:7 & Ex. 12).

Scafidi’s desired accommodation was to continue performing

her current job without the requirement to get vaccinated.

(Id. at 105:3-22, 150:1-8).

Scafidi is a “Bible-believing Christian” who attends

Plant City Church of God. (Id. at 26:4-5, 36:12-15). She does

not have a religious objection to vaccines in general, and

her church took no stance on the COVID vaccine. (Id. at 32:24-

33:14, 40:24-41:8). Concern over the use of aborted fetal

cells in the vaccine was not the reason for her refusal to

get the vaccine. (Id. at 50:10-17).

Scafidi did have concerns over the efficacy and safety

of the COVID vaccine. (Id. at 23:17-25:25, 44:14-46:13,

50:18-51:5, 132:4-15, 155:10-16). She noted that there was

lots of information and “misinformation” during the pandemic

about the vaccine. (Id. at 23:20-23). Scafidi highlighted a

Harvard study that “looked at the pockets of those that were

vaccinated and those that were getting COVID, and they didn’t

see a reduction in COVID based on folks that were getting the

vaccine.” (Id. at 24:16-25). She also believed that she had

“natural immunity” because she had COVID in August 2021. (Id.

at 43:4-9).

Ultimately, Scafidi testified that the reason she

refused to get the COVID vaccine was “a matter of conscience”:

Q: What is it about your religion that prevents you

from receiving the vaccine?

A: Just going back to a matter of conscience, there

was so much flooding me at the time.

Q: What do you mean by so much flooding you?

A: So many mixed messages that were being sent, and

they seemed to change weekly, monthly --

Q: What kind of mixed messages? I’m sorry to

interrupt.

A: There were all kinds of things -- well, again,

we’re going back to the past year, we have had the

Harvard study that came out. My own daughter that

I mentioned to you, she’s had all sorts of

treatments and medical interventions and the like,

and I remember being very concerned for her

wellbeing from COVID and not knowing how she would

react because she has a deficient lung.

(Id. at 41:25-42:16). Scafidi connected her conscience to the

Holy Spirit:

Q: Okay. What is it about your religious beliefs

that prevent you from taking the COVID vaccine?

A: I think I kind of explained it before. How -- I

abided by the basic rule of thumb and principal

that’s guided me my entire li[f]e. I have to stick

by my conscience. If my conscience is telling me

otherwise, I know that God knows what is best for

me, and the Holy Spirit will direct me. That’s been

through every decision I have ever made my entire

life.

. . .

Q: . . . Do your beliefs about sticking by your

conscience, do they come from any specific parts of

the Bible or religious doctrine that you’re

following?

A: Oh, sure. It’s laced throughout all the New

Testament. As I mentioned, the Old Testament wasn’t

really a matter of conscience; it was a matter of

sacrifices and more of laws and rules, and then it

switched over after the death and resurrection of

Jesus.

(Id. at 48:13-49:9).

Scafidi’s exemption request was denied on September 28,

2021. (Id. at Ex. 13). After her exemption was denied, Scafidi

made various appeals to Braun supervisors or executives,

asking that she be allowed to keep her customer-facing job

without getting vaccinated. (Scafidi Depo. at 134:6-142:21,

145:20-176:5, Ex. 15-20).

For example, Scafidi spoke to Grispo, Malo, and Jason

Cronan, Braun’s Vice President of Hospital Care Sales.

Scafidi both called and sent text messages, along with links

to articles about the vaccine’s safety and efficacy, to Cronan

to garner support for her exemption request. (Cronan Decl. at

¶ 4 & Exs. A-B). According to Cronan, “Scafidi’s objections

did not appear to [him] to be religious in nature. Instead,

her focus was on the safety, efficacy, and alleged

experimental nature of the vaccines.” (Id. at ¶¶ 4-5). Grispo

averred that during his conversation with Scafidi she

“explained her objections to the vaccine related mostly to

concerns over their safety” and “did not point to any

religious doctrine or other religious underpinning that she

believed required her to refuse the vaccine.” (Grispo Decl.

¶ 15). Malo testified that the written materials Scafidi gave

her in attempting to explain why she did not want the COVID

vaccine were not religious in nature; rather, they were

“[m]ore political, even at times more QAnon.” (Malo Depo. at

83:18-84:3).

Although Scafidi knew she could apply for non-customer-

facing jobs with Braun if she chose not to vaccinate, Scafidi

never applied for another position with Braun. (Scafidi Depo.

at 101:17-102:17, 103:18-24). She testified that the

available non-customer-facing positions “would have been less

money or relocated.” (Id. at 103:13-21). According to Grispo,

Scafidi told him that “she was not interested in other

positions within the company mainly because they would

require her to relocate, and she did not want to leave

Florida.” (Grispo Decl. ¶ 14). Vestal testified that no

positions were available in Tampa, and she was not aware if

any of the open positions paid a salary close to what Scafidi

had been earning in her sales position with Braun. (Vestal

Depo. at 38:2-25). The closest available non-customer-facing

positions were in Daytona Beach, Florida. (Id. at 38:5-12).

Vestal was also unaware if Scafidi was qualified for any of

the available positions. (Id. at 40:5-17).

Instead of applying for an available non-customer-facing

position, Scafidi asked that a new position be created for

her with a Braun “team that handles national accounts,” but

“they didn’t have it within budget to create an extra role

for her.” (Scafidi Depo. at 103:22-104:6).

Because Scafidi did not get vaccinated by the deadline,

her employment was terminated on November 1, 2021. (Id. at

Ex. 22). At the next job Scafidi obtained with a different

employer, she submitted a request for religious exemption to

the vaccine requirement in which she wrote: “The Holy Spirit,

whom [sic] is living inside of me, guides me on a daily basis.

. . . After much prayer, I have [a] deep conviction against

receiving this vaccine.” (Id. at Ex. 31).

C. Procedural History

Scafidi initiated this action in state court, asserting

claims for religious discrimination in violation of Title VII

and the FCRA (Counts I and III) and retaliation in violation

of Title VII and the FCRA (Counts II and IV) in her amended

complaint. (Doc. # 1-3 at 16-23). Braun removed the case to

this Court on December 6, 2022. (Doc. # 1). Braun filed its

answer (Doc. # 8), and the case proceeded through discovery.

Now, Braun seeks summary judgment on all claims (Doc. #

60), while Scafidi seeks partial summary judgment on her

religious discrimination and failure to accommodate claims.

(Doc. # 54). The Motions are fully briefed (Doc. ## 69, 70,

74, 75), and ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed . . . .” (quotation omitted)).

III. Analysis

A. Braun’s Motion

In her amended complaint, Scafidi raises both religious

discrimination/failure to accommodate claims and retaliation

claims under Title VII and the FCRA. “[B]ecause the FCRA is

based on Title VII, decisions construing Title VII apply to

the analysis of FCRA claims.” Johnson v. Miami-Dade Cnty.,

948 F.3d 1318, 1325 (11th Cir. 2020).

The Court will address the retaliation claims first, and

then the religious discrimination/failure to accommodate

claims.

1. Retaliation

Braun argues that summary judgment should be granted on

Scafidi’s retaliation claims because Scafidi’s request for a

religious accommodation was not the “but-for” cause of her

termination. (Doc. # 60 at 23-25). Rather, “Braun’s ‘real’

reason for separating Scafidi from employment was the fact

that she was out of compliance with the vaccine policy.” (Id.

at 24); see also Lucky v. COBX, Co., No. 22-12514, 2023 WL

3359607, at *3 (E.D. Mich. May 10, 2023) (“It was not Lucky’s

request for accommodation that resulted in her termination,

but her failure to get the COVID-19 vaccine after her request

for accommodation was denied. Lucky cannot, as a matter of

law, establish either of her retaliation claims.”).

In her response, Scafidi states that she “agrees to

dismiss Counts II and IV of her Amended Complaint for

retaliation under Title VII and the FCRA.” (Doc. # 70 at 20).

Thus, Scafidi has abandoned her Title VII and FCRA retaliation

claims. See Edmondson v. Bd. of Trustees of Univ. of Ala.,

258 F. App’x 250, 253 (11th Cir. 2007) (“In opposing a motion

for summary judgment, a party may not rely on her pleadings

to avoid judgment against her. There is no burden upon the

district court to distill every potential argument that could

be made based upon the materials before it on summary

judgment. Rather, the onus is upon the parties to formulate

arguments; grounds alleged in the complaint but not relied

upon in summary judgment are deemed abandoned.”); Powell v.

Am. Remediation & Env’t, Inc., 61 F. Supp. 3d 1244, 1253 n.9

(S.D. Ala. 2014) (“[W]here the non-moving party fails to

address a particular claim asserted in the summary judgment

motion but has responded to other claims made by the movant,

the district court may properly consider the non-movant’s

default as intentional and therefore consider the claim

abandoned.”), aff’d, 618 F. App’x 974 (11th Cir. 2015).

Upon review of Braun’s arguments and given Scafidi’s

abandonment of these claims, the Court grants Braun’s Motion

as to Counts II and IV. Summary judgment in favor of Braun is

appropriate on these claims.

2. Discrimination and Failure to Accommodate

Counts I and III of the amended complaint assert

religious discrimination claims. (Doc. # 1-3 at 18-21). These

claims raise both disparate treatment and failure to

accommodate theories. Still, the parties agree that the Court

may address the theories together. See (Doc. # 69 at 18)

(noting that “[t]he Eleventh Circuit’s customary approach is

to review failure to accommodate and disparate treatment

claims together”); see also (Doc. # 74 at 7 n.3) (“Plaintiff

agrees that her failure to accommodate and disparate

treatment claims should be reviewed together.”).

“The term ‘religion’ in Title VII's prohibition against

religious discrimination ‘includes all aspects of religious

observance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate to

an employee’s or prospective employee’s religious observation

or practice without undue hardship on the conduct of the

employer’s business.’” Bailey v. Metro Ambulance Servs.,

Inc., 992 F.3d 1265, 1275 (11th Cir. 2021) (quoting 42 U.S.C.

§ 2000e(j)). “To establish a reasonable-accommodation claim

of religious disparate treatment, a plaintiff must first set

forth a prima facie case by showing that (1) his sincere and

bona fide religious belief conflicted with an employment

requirement, and (2) his employer took adverse employment

action against him because of his inability to comply with

the employment requirement or because of the employer’s

perceived need for his reasonable accommodation.” Id. “Once

a plaintiff makes out a prima facie case, the burden shifts

to the employer to show that it either offered a reasonable

accommodation or that it cannot reasonably accommodate the

employee’s religious practice without undue hardship on its

business.” Id.

Upon review of Scafidi and Braun’s arguments in their

respective briefing, the Court determines that both Motions

are due to be denied. Genuine disputes of material fact exist

as to whether Scafidi held a sincere and bona fide religious

belief that conflicted with Braun’s vaccine requirement,

whether the accommodation Braun offered Scafidi was

reasonable, and — if no reasonable accommodation was offered

by Braun — whether Braun would have suffered an undue hardship

if it gave Scafidi the accommodation she requested.

a. Religious Beliefs

Again, the first element of a prima facie case is that

the plaintiff’s sincere and bona fide religious belief

conflicted with an employment requirement. Bailey, 992 F.3d

at 1275. “To qualify as a ‘bona fide’ religious belief, the

belief must be ‘sincerely held’ and, ‘in the [believer’s] own

scheme of things, religious.’” Telfair v. Fed. Exp. Corp.,

934 F. Supp. 2d 1368, 1382 (S.D. Fla. 2013) (quoting United

States v. Seeger, 380 U.S. 163, 185 (1965)), aff’d, 567 F.

App’x 681 (11th Cir. 2014). “An employer need not accommodate

a ‘purely personal preference,’ however.” Vetter v. Farmland

Indus., Inc., 120 F.3d 749, 751 (8th Cir. 1997) (citation

omitted); see also Passarella v. Aspirus, Inc., No. 22-CV-

287-JDP, 2023 WL 2455681, at *5 (W.D. Wis. Mar. 10, 2023)

(“The court does not concern itself with the truth or validity

of religious belief, nor does it matter whether the belief is

part of a mainstream religion or an idiosyncratic one.

Nevertheless, the court must distinguish between religious

belief and other matters of personal conviction.” (citations

omitted)). “[T]he United States Supreme Court has explained

that although the determination of whether a belief is

‘religious’ is a delicate question, ‘the very concept of

ordered liberty precludes allowing every person to make his

own standards on matters of conduct in which society as a

whole has important interests.’” Troulliet v. Gray Media

Grp., Inc., No. CV 22-5256, 2023 WL 2894707, at *4 (E.D. La.

Apr. 11, 2023) (quoting Wisconsin v. Yoder, 406 U.S. 205,

215–16 (1972)).

As an initial matter, equitable estoppel does not

preclude Braun from challenging this element of Scafidi’s

prima facie case. While Braun seemed to assume that Scafidi’s

religious beliefs were sincerely held before denying her

request for religious accommodation, Braun has not waived its

ability to challenge this element in this Court and does not

appear to have made any material misrepresentation to

Scafidi. Thus, it would not be fair for the Court to prevent

Braun from doing so now. See Dawkins v. Fulton Cnty. Gov’t,

733 F.3d 1084, 1089 (11th Cir. 2013) (“[T]he elements of

federal common law equitable estoppel in this circuit are:

‘(1) the party to be estopped misrepresented material facts;

(2) the party to be estopped was aware of the true facts; (3)

the party to be estopped intended that the misrepresentation

be acted on or had reason to believe the party asserting the

estoppel would rely on it; (4) the party asserting the

estoppel did not know, nor should it have known, the true

facts; and (5) the party asserting the estoppel reasonably

and detrimentally relied on the misrepresentation.’”

(citation omitted)).

Thus, the Court will consider Braun’s arguments about

the first element of Scafidi’s prima facie case. Braun argues

that “Scafidi’s objections were based on her own purely

scientific, personal, and medical beliefs about the vaccine”

and Scafidi is attempting to “[c]loak[] those beliefs in a

religious robe.” (Doc. # 60 at 17). In support, Braun points

to Scafidi’s testimony that her decision was a “matter of

conscience” that she reached after weighing the mixed

messages she saw about the vaccine. (Scafidi Depo. at 41:25-

42:16). Notably, Scafidi admits that she did have concerns

over the science and medical safety of the vaccine. (Id. at

23:17-25:25, 44:14-46:13, 50:18-51:5, 132:4-15, 155:10-16).

Basically, as Braun sees it, Scafidi is attempting to convert

her personal decision not to get the COVID vaccine for

political or safety reasons into a religious decision by

invoking the Holy Spirit as “leading” her “conscience.” See

Finkbeiner v. Geisinger Clinic, 623 F. Supp. 3d 458, 465 (M.D.

Pa. 2022) (finding that a sincerely held religious belief was

not plausibly pled where the plaintiff, who was Christian and

had safety concerns about COVID tests, relied on “her belief

that she has a ‘God given right to make [her] own choices’”

— a belief that is an “isolated moral teaching” and “would

amount to ‘a blanket privilege’ and a ‘limitless excuse for

avoiding all unwanted . . . obligations’” (citation

omitted)), appeal dismissed, No. 22-2714, 2023 WL 6057495 (3d

Cir. Sept. 18, 2023).

Indeed, the Braun employees who spoke with Scafidi about

her objection to the vaccine believed her objection was

scientific or political — not religious. (Cronan Decl. at ¶

4 & Exs. A-B; Grispo Decl. ¶ 15; Malo Depo. at 83:18-84:3).

Thus, Braun contends that Scafidi did not have a sincerely

held religious belief that conflicted with Braun’s vaccine

requirement. See Passarella, 2023 WL 2455681, at *5

(“[O]bjections to a COVID-19 vaccination requirement that are

purely based on . . . nonreligious concerns (including about

the possible effects of the vaccine), do not qualify as

religious beliefs.” (citation omitted)); Beickert v. New York

City Dep’t of Educ., No. 22-CV-5265(DLI)(VMS), 2023 WL

6214236, at *4 (E.D.N.Y. Sept. 25, 2023) (“[I]t is clear that

Kushner’s refusal to comply with the Vaccine Mandate actually

is based on her concerns about the safety and efficiency of

COVID-19 vaccines, which she attempts to categorize as

religious convictions by invoking Deuteronomy 4:15 [which

states ‘[y]ou should be very careful to protect your life.’].

Her true concerns do not qualify as a proper basis for a

religious exemption.”); Sherr v. Northport-E. Northport Union

Free Sch. Dist., 672 F. Supp. 81, 94 (E.D.N.Y. 1987) (stating

that it must “be demonstrated that the espoused beliefs are

sincerely held and that the stated beliefs, even if accurately

reflecting plaintiffs’ ultimate conclusions about the

advisability of inoculation of their children, do in fact

stem from religious convictions and have not merely been

framed in terms of religious belief so as to gain the legal

remedy desired”).

For her part, Scafidi emphasizes that she is a practicing

Christian. (Scafidi Depo. at 26:4-5, 36:12-15). Part of her

beliefs as a Christian is that she must follow her

“conscience,” which is guided by the Holy Spirit. (Id. at

48:13-49:9). While she could not point to a specific Bible

verse, Scafidi testified that her beliefs about the Holy

Spirit guiding her conscience are “laced throughout all the

New Testament.” (Id. at 49:2-22). She also points to the

religious exemption request form she submitted at her next

job as evidence that her opposition to getting the COVID

vaccine was religiously based. (Id. at Ex. 31).

Considering the record evidence on the delicate inquiry

into sincerity, there is a genuine dispute over whether

Scafidi’s religious beliefs conflicted with the vaccine

requirement, or whether Scafidi’s refusal was based on other

personal or political beliefs. “Credibility issues such as

the sincerity of an employee’s religious belief are

quintessential fact questions. As such, they ordinarily

should be reserved ‘for the factfinder at trial, not for the

court at summary judgment.’” E.E.O.C. v. Union Independiente

de la Autoridad de Acueductos y Alcantarillados de Puerto

Rico, 279 F.3d 49, 56 (1st Cir. 2002) (citation omitted).

Here, the jury must decide whether Scafidi possessed a

sincerely held religious belief that conflicted with Braun’s

vaccine requirement. See Dixon v. The Hallmark Companies,

Inc., 627 F.3d 849, 855 (11th Cir. 2010) (“[T]here is

differing testimony as to whether the Dixons held a sincere

religious belief that conflicted with Hallmark’s directive to

remove their artwork. . . . [T]he parties’ conflicting

testimony raises a genuine issue of material fact as to the

first prong of the failure-to-accommodate analysis. . . .

Determining [the Dixons’] credibility on this point is a

matter for the jury, not the court.”).

b. Reasonable Accommodation

Again, “[o]nce a plaintiff makes out a prima facie case,

the burden shifts to the employer to show that it either

offered a reasonable accommodation or that it cannot

reasonably accommodate the employee’s religious practice

without undue hardship on its business.” Bailey, 992 F.3d at

1275. “If an employer establishes that it offered a reasonable

accommodation for the employee’s religious practice, it is

entitled to judgment in its favor. The employer has no further

obligation to offer an employee’s preferred accommodation or

to demonstrate that an employee’s preferred accommodation

would cause an undue hardship.” Id. (citation omitted). That

is, an employer is not required to give the reasonable

accommodation an employee requests. What matters is that a

reasonable accommodation has been offered. See Beadle v.

Hillsborough Cnty. Sheriff’s Dep’t, 29 F.3d 589, 592 (11th

Cir. 1994) (“Title VII does not require an employer to give

an employee a choice among several accommodations; nor is the

employer required to demonstrate that alternative

accommodations proposed by the employee constitute undue

hardship. Rather, the inquiry ends when an employer shows

that a reasonable accommodation was afforded the employee,

regardless of whether that accommodation is one which the

employee suggested.”).

Here, the parties debate whether the accommodation

offered by Braun was reasonable. “A reasonable accommodation

eliminates the conflict between employment requirements and

religious practices.” Bailey, 992 F.3d at 1276 (citation and

internal quotation marks omitted). “Although [courts]

evaluate offered accommodations on a case-by-case basis,

whatever else may qualify, a transfer to a ‘comparable

position’ that removes the conflict between the policy and

the religious practice, and reasonably preserves the

employee’s terms, conditions, or privileges of employment,

satisfies the reasonable-accommodation requirement.” Id.

(citations omitted).

Braun highlights that it offered the accommodation of

“reassignment to a non-customer-facing position not subject

to the vaccine requirement.” (Doc. # 60 at 18). Indeed, the

FAQ page sent with Braun’s announcement of the vaccine

requirement informed customer-facing employees like Scafidi

that they could “apply for other non-customer-facing

opportunities in accordance with the job posting policy.”

(Donigan Depo. at Ex. E); see Walker v. Indian River Transp.

Co., 741 F. App’x 740, 747 (11th Cir. 2018) (“Walker contends

that Indian River failed to reasonably accommodate him

because the routes he was offered after his request paid less

than the milk route. But an accommodation may be reasonable

even if it adversely impacts the employee to some extent.”).

Scafidi was aware of her ability to apply for a non-customer-

facing position with Braun, but never applied for such a

position. (Scafidi Depo. at 101:17-102:17, 103:18-24); see

Bartholomew v. Washington, No. 3:23-CV-05209-DGE, 2023 WL

6471627, at *4 (W.D. Wash. Sept. 21, 2023) (“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 cannot find that Plaintiff has adequately

stated a failure to accommodate claim under Title VII.”).

But Scafidi notes that no non-customer-facing positions

were available in Tampa, so she would have had to relocate

for a new position. (Scafidi Depo. at 103:13-21; Grispo Decl.

¶ 14). There was also testimony from Braun’s corporate

representative, Vestal, that no positions were available in

Tampa and she was not aware if any of the open positions paid

a salary close to what Scafidi had been earning in her sales

position with Braun. (Vestal Depo. at 38:2-25). Rather, the

closest available non-customer-facing positions were in

Daytona Beach, Florida. (Id. at 38:5-12). Vestal was also

unaware if Scafidi was qualified for any of the available

positions. (Id. at 40:5-17). Thus, there is a dispute over

whether a “comparable position” was available to Scafidi for

reassignment.

“Determining what is reasonable is a fact-specific

determination that must be made on a case-by-case basis.”

Tabura v. Kellogg USA, 880 F.3d 544, 551 (10th Cir. 2018).

Because of the genuine dispute about the reasonableness of

reassignment here, this issue cannot be decided on summary

judgment. Rather, the jury should make the reasonableness

determination. See E.E.O.C. v. Universal Mfg. Corp., 914 F.2d

71, 73 (5th Cir. 1990) (“We need not embark on a long

discussion of what is or is not ‘reasonable’ accommodation.

Ordinarily, questions of reasonableness are best left to the

fact finder.”); E.E.O.C. v. Robert Bosch Corp., 169 F. App’x

942, 944 (6th Cir. 2006) (“The reasonableness of an employer’s

attempt at accommodation must be determined on a case-by-case

basis and is generally a question of fact for the jury, rather

than a question of law for the court.”).

c. Undue Hardship

Finally, Braun argues that, assuming Braun did not offer

Scafidi a reasonable accommodation, “providing Scafidi with

her requested accommodation would have imposed an undue

burden on [] Braun.” (Doc. # 60 at 21).

While this case was pending, the Supreme Court decided

Groff v. DeJoy, 600 U.S. 447 (2023). The Supreme Court

clarified “that showing ‘more than a de minimis cost,’ as

that phrase is used in common parlance, does not suffice to

establish ‘undue hardship’ under Title VII.” Id. at 468.

Rather, “‘undue hardship’ is shown when a burden is

substantial in the overall context of an employer’s

business.” Id.; see also Id. at 470 (“[I]t is enough to say

that an employer must show that the burden of granting an

accommodation would result in substantial increased costs in

relation to the conduct of its particular business.”). The

Court is mindful that “[w]hether an employer will incur an

undue hardship is a fact question that turns on ‘the

particular factual context of each case.’” Tabura, 880 F.3d

at 558 (citations omitted).

A genuine dispute of material fact exists as to whether

Braun would have suffered an undue hardship if it had allowed

Scafidi to stay in her customer-facing position without

getting vaccinated. Braun has provided evidence that there

would be increased costs and administrative difficulties if

Scafidi, a salesperson unlikely to receive exemptions from

each of the hospitals in her territory to any vaccine

requirements, was allowed to continue working unvaccinated.

These difficulties would have related to tracking the

patchwork of exemptions and vaccination policies across the

over-one-hundred hospitals Scafidi covered and reconfiguring

other salespeople’s territories to cover hospitals that

Scafidi would not be allowed to enter unvaccinated. (Grispo

Decl. at ¶¶ 11-13). Indeed, as pointed out by Scafidi’s

supervisor Malo, such reconfiguring of territories has in the

past taken Braun eighteen months and involves work by

compensation analysts and involvement of various Braun

executives. (Malo Depo. at 85:9-86:22, 87:15-88:6).

But, on the other hand, there is testimony that Braun

did not do any analysis to determine the costs of

reconfiguring Scafidi’s territory if any hospitals denied her

admission. (Vestal Depo. at 126:23-127:2). And, indeed, Braun

has not presented any estimate of the costs it would have

incurred if it had allowed Scafidi to retain her position

without getting vaccinated. Furthermore, it does not appear

that any of the hospital systems in Scafidi’s territory had

denied her access or denied her requests for a religious

exemption submitted through the hospitals’ vendor

credentialing systems at the time of her termination.

Thus, summary judgment is inappropriate on this point.

See Crider v. Univ. of Tennessee, Knoxville, 492 F. App’x

609, 615 (6th Cir. 2012) (“Because a genuine issue of material

fact exists as to the possible hardship UTK might suffer by

accommodating Crider’s religious beliefs, summary judgment

was inappropriate.”).

B. Scafidi’s Motion

Scafidi seeks summary judgment in her favor on her

religious discrimination/failure to accommodate claims. This

Motion is denied for the same reason Braun’s Motion is denied

as to these claims. Genuine disputes of material fact exist

as to whether Scafidi held a sincere and bona fide religious

belief that conflicted with Braun’s vaccine requirement,

whether the accommodation Braun offered Scafidi was

reasonable, and — if no reasonable accommodation was offered

by Braun — whether Braun would have suffered an undue hardship

if it gave Scafidi the accommodation she requested.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Courtney Scafidi’s Motion for Partial Summary

Judgment (Doc. # 54) is DENIED.

(2) Defendant B. Braun Medical, Inc.’s Motion for Summary

Judgment (Doc. # 60) is GRANTED in part and DENIED in

part.

(3) Summary judgment is granted in favor of Defendant on

Counts II and IV but denied as to Counts I and III. The

case will proceed to trial on Counts I and III.

DONE and ORDERED in Chambers in Tampa, Florida, this

17th day of January, 2024.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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