# Speer v. UCOR LLC

> District Court, E.D. Tennessee · November 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10435675

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** November 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10435675

## How later opinions describe it (automated extraction)

- describing the requirements as “numerosity, commonality, typicality, and adequate representation”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

CARLTON SPEER, MALENA )
DENNIS, and ZACHARIAH DUNCAN, ) Case No. 3:22-cv-426
individually and on behalf of all )
others similarly situated, ) Judge Travis R. McDonough
)
Plaintiffs, ) Magistrate Judge Jill E. McCook
)
v. )
)
UCOR LLC, )
)
Defendant. )

MEMORANDUM OPINION

Before the Court is Plaintiffs Carlton Speer, Malena Dennis, and Zachariah Duncan’s
motion to certify a class pursuant to Federal Rule of Civil Procedure 23 (Doc. 18). For the
reasons set forth below, the motion (id.) will be DENIED.
I. BACKGROUND
Defendant, UCOR LLC, is a business that provides nuclear and environmental cleanup
services at the East Tennessee Technology Park, the Oak Ridge National Laboratory, and the Y-
12 National Security Complex. (Doc. 12, at 2.)
On August 26, 2021, Defendant announced that it would require all its employees and
subcontracted employees to be fully vaccinated against COVID-19 by November 1, 2021. (Id. at
4–5.) Defendant stated it would consider requests for medical and religious exemptions on a
case-by-case basis, but employees who did not receive an exemption and who still refused to
comply with the vaccine requirement would be terminated. (Id. at 4.) Defendant required
employees to submit an “Exemption Request Form” in which employees described their
religious beliefs and why the belief conflicted with the vaccination requirement. (Doc. 12, at 5.)
Defendant considered ninety-eight requests for religious exemptions. (Doc. 19, at 6.) Defendant
created an Accommodation Review Committee consisting of human resources staff to evaluate
each request.1 (Doc. 39, at 5.) After receiving an employee’s exemption request, a committee
member interviewed each employee about the request and potential accommodations. (Id. at 6.)

A different committee member interviewed each named Plaintiff. (Id.) The committee
considered each request on a case-by-case basis and evaluated whether the request would result
in undue hardship. (Id. at 3.) Defendant developed a chart to help determine the impact of
potential accommodations on its business. (Id. at 6–7.) Defendant considered “weekly testing,
enhanced face coverings, mask fit tests, limited task reassignment, job reassignment, work
location adjustments, isolation, distancing, leaves of absence, daily self-health checks, and
telework” as potential accommodations. (Id.) For purposes of the accommodation process,
Defendant did not dispute that each religious exemption request was based upon a sincerely held
religious belief.2 (Doc. 30, at 4.)

Plaintiffs Carlton Speer, Malena Dennis, and Zachariah Duncan were employees of
Defendant at the time the company’s vaccine mandate was enacted, and they requested religious
exemptions from the mandate. (Doc 12, at 5.) Plaintiffs are Christians who believe “that the
COVID-19 vaccines . . . were developed . . . using fetal cell lines derived from aborted fetal
tissues and that it would be sinful to interject [sic] such products into their bodies.” (Id.)

1 These facts are drawn from the sworn declaration of a UCOR employee, Charles Malarkey, in
Speer v. UCOR, LLC, No. 3:21-cv-368, 2022 WL 3971036 (E.D. Tenn. Aug. 31, 2022) (“Speer
I”), to which Defendant cites.
2 Defendant notes that it “does not concede that [Plaintiffs’ objections were based upon a
sincerely held religious belief] and will dispute that issue in this action.” (Doc. 29, at 5 n.3.)
Defendant rejected Plaintiffs’ accommodation requests because it determined the
accommodations would cause Defendant undue hardship. (Id. at 6.) In fact, Defendant rejected
all religious exemption requests based on undue hardship. (Doc 19, at 2.) But it did grant many
exemptions based on disability, providing accommodations as a result. (Doc. 12, at 6.)
Defendant terminated Plaintiffs and all other employees who refused COVID-19 vaccines based

on religious beliefs. (Id. at 7.)
On November 29, 2022, Plaintiffs filed a putative class-action complaint, asserting claims
against Defendant pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e et seq., and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et
seq. (Doc. 1.) Plaintiffs filed a motion to certify the class on January 1, 2023. (Doc. 18.)
Plaintiffs seek to certify a class consisting of:
All employees, staff augmentation employees, and subcontractors who (i) were subject to
UCOR’s COVID-19 vaccine mandate, (ii) who submitted an accommodation/exemption
request based on their sincerely held religious belief opposing the receipt of the vaccine,
(iii) whose request for an accommodation/exemption was denied and (iv) who
subsequently suffered an adverse employment action for their refusal to receive and
provide proof of having received the vaccine.”
(Doc. 34, at 2.) On February 13, 2023, the Court granted Defendant’s motion to dismiss
Plaintiffs’ RFRA claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 25.) As a
result, the only claim remaining is Plaintiffs’ Title VII claim for failing to accommodate their
religious beliefs.3 4 (Doc. 12, at 9–10.) Plaintiffs’ motion for class certification is now ripe for
the Court’s review.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 23 allows “members of a class” to sue or be sued “on
behalf of all members” of the class. Fed. R. Civ. P. 23(a). “The class action is an exception to

the usual rule that litigation is conducted by and on behalf of the individual named parties only.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). For a class to be certified, the
plaintiffs must prove they meet the requirements of both Rule 23(a) and 23(b). See Sprague v.
Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (“No class that fails to satisfy all four of

3 In what Plaintiffs style as “Claim One,” they allege a separate “Religious Discrimination”
claim. (Doc. 12, at 9–10.) However, Claim One is the same failure-to-accommodate claim they
allege in “Claim Two.” See Bolden v. Lowes Home Centers, LLC, 783 F. App’x 589, 597 (6th
Cir. 2019) (setting forth failure-to-accommodate elements of (1) a sincerely held belief
conflicting with an employment requirement, (2) notice to employer, (3) and an adverse action
for non-conformance). In Claim One, Plaintiffs allege: (1) “[they] held sincere religious
beliefs,” (2) “[Defendant] was aware of Plaintiffs’ sincerely held religious beliefs and their
corresponding objection to the COVID-19 vaccine mandate,” and (3) “Plaintiffs were subject to
adverse employment actions as Defendant progressively disciplined Plaintiffs for refusing to be
vaccinated.” (Doc. 12, at 9–10.) Plaintiffs further allege that Defendant failed to reasonably
accommodate them in the manner that they did employees who requested accommodations based
on disability. (Id.) This is a failure-to-accommodate claim, and the Court will analyze it as one.
4 Insofar as Plaintiffs argue that it is discrimination for Defendant to treat religious-exemption
requests differently from disability-exemption requests, the standards for religious
accommodation and disability accommodation are different. See Groff v. DeJoy, 600 U.S. 447,
470–73 (2023) (refusing to adopt the ADA accommodation standard for Title VII and “leav[ing]
it to the lower courts to apply our clarified context-specific standard”). Therefore, a
determination that Defendant treated religious exemption requests less favorably than disability-
based requests would not prove that Defendant violated Title VII. This is especially true since,
at the time Defendant evaluated Plaintiffs’ requests, employers were required to make greater
efforts to accommodate employees under the ADA than under Title VII. Compare 42 U.S.C. §
12111(10)(A) (“The term ‘undue hardship’ means an action requiring significant difficulty or
expense.”) with Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (finding that
undue hardship under Title VII is anything more than a “de minimis cost”); see Eckles v. Consol.
Rail Corp., 94 F.3d 1041, 1049 (7th Cir. 1996) (“The Senate and House Reports on the ADA
clarified Hardison’s statement that only de minimis costs were required for reasonable
accommodation does not apply under the ADA.”).
the prerequisites of Rule 23(a) may be certified, and each class meeting those prerequisites must
also pass at least one of the tests set forth in Rule 23(b).”).
“Rule 23 does not set forth a mere pleading standard.” Dukes, 564 U.S. at 350. The
burden is on the party seeking certification to “affirmatively demonstrate his compliance with the
Rule . . . he must be prepared to prove that there are in fact sufficiently numerous parties,

common questions of law or fact, etc.” Id. “If the parties disagree over a fact critical to a Rule
23 requirement . . . plaintiffs cannot rest on their complaint,” rather they must offer “significant
proof” of disputed facts. Doster v. Kendall, 54 F.4th 398, 432 (6th Cir. 2022) (quoting Dukes,
564 U.S. at 353). Often, the “rigorous analysis” required of courts at the class-certification stage
“will entail some overlap with the merits of the plaintiff’s underlying claim.” Dukes, 564 U.S. at
351. However, Rule 23 does not give courts “license to engage in free-ranging merits inquiries
at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466
(2013) (citing Dukes, 564 U.S. at 351 n.6). “Merits questions may be considered to the extent—
but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites

for class certification are satisfied.” Id. (citing Dukes, 564 U.S. at 351 n.6).
III. ANALYSIS
A. Rule 23(a)
To proceed as a class under Rule 23(a), a plaintiff seeking class certification must first
show that:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a); see Dukes, 564 U.S. at 349 (describing the requirements as “numerosity,
commonality, typicality, and adequate representation”). Plaintiffs must demonstrate that they
meet all four requirements. See Davis v. Cintas Corp., 717 F.3d 476, 483 (6th Cir. 2013) (“If the
plaintiff does not satisfy each of these requirements, her class claim fails at the threshold.”); see
also In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (“Subsection (a) of Rule 23

contains four prerequisites which must all be met before a class can be certified”). Once these
four prerequisites are met, then “the party seeking certification must also demonstrate that it falls
within at least one of the subcategories of Rule 23(b).” Id.
Here, Plaintiffs have not carried their burden of showing that Rule 23(a)’s numerosity
requirement is satisfied.5
i. Numerosity
To be entitled to class certification, a plaintiff must show that “the class is so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This is “numerosity.”
Dukes, 564 U.S. at 349. In some cases, the “sheer number of potential litigants in a class,

especially if it is more than several hundred or thousand, can be the only factor needed to satisfy
[numerosity].” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004); see, e.g.,
Serrano v. Cintas Corp., No. CIV. 04-40132, 2009 WL 910702, at *4 (E.D. Mich. Mar. 31,
2009), aff’d sub nom. Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) (finding numerosity
satisfied when “the proposed class would contain thousands of members”).
However, “while large numbers may, in many cases, indicate impracticability of joinder,
numbers are not a perfect predictor.” Turnage v. Norfolk S. Corp., 307 F. App’x 918, 921 (6th

5 Since numerosity is not satisfied, the Court need not analyze whether Plaintiffs satisfy the
commonality, typicality, or adequacy requirements. See Davis, 717 F.3d at 483 (noting that all
four requirements of Rule 23(a) must be proven).
Cir. 2009). The Sixth Circuit has cautioned that “the real issue is whether the plaintiff seeking
class certification has demonstrated impracticability of joinder.” Id. (emphases added).
Showing that joinder is impracticable is case-specific and requires close examination of the
proposed class. Gen. Tel. Co. of the Nw. v. Equal Emp. Opportunity Comm’n, 446 U.S. 318, 330
(1980). When evaluating impracticability of joinder, courts should consider “ease of identifying

members and determining addresses, ease of service on members if joined, and geographical
dispersion” in addition to sheer numbers. Turnage, 307 F. App’x at 921. Furthermore,
“impracticability of joinder must be positively shown, and cannot be speculative,” Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012) (citations omitted), and if the parties
dispute numerosity, “the plaintiff must offer proof” showing impracticability of joinder. Doster,
54 F.4th at 432.
Here, the parties dispute numerosity. (Doc. 29, at 10.) Plaintiffs assert, and Defendant
does not dispute, that ninety-eight employees submitted religious-exemption requests, all of
which Defendant denied. (Doc. 19, at 6; Doc. 29, at 5.) Plaintiffs initially sought to certify a

class including all ninety-eight employees (Doc. 18, at 1) but now seek to certify a class
consisting of only those employees who suffered an adverse employment action due to their
refusal to be vaccinated (Doc. 34, at 1–2). However, Plaintiffs have not provided the Court with
any evidence whatsoever regarding how many employees suffered an adverse employment
action due to their refusal to be vaccinated. Instead, Plaintiffs merely suggest that “while the
exact class size is unknown, the Court can presume that the class size is, at the very least, above
fifty.”6 (Doc. 34, at 6.)

6 While neither party references this fact in their briefings, Defendant provided the named
Plaintiffs’ verified responses to interrogatories in which Plaintiffs’ counsel asserts that forty-four
people “have expressed a desire to be represented by the class and by class counsel.” (Doc. 39-5,

To the contrary, the Court cannot presume compliance with Rule 23(a). See Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (stating that courts must demand “actual, not
presumed, conformance with Rule 23(a)”). Despite Plaintiffs’ claims otherwise, this is far from
the type of class action for which “common sense” dictates impracticability of joinder. (Doc. 34,
at 6) (quoting Talbott v. GC Services Ltd. P’ship, 191 F.R.D. 99, 102 (W.D. Va. 2000)).

Plaintiffs are not seeking to represent hundreds or thousands of people, and courts routinely
reject class certification of classes consisting of a relatively small number of potential plaintiffs.
See Gen. Tel. Co. of the Nw., 446 U.S. at 330 (suggesting that a class of fifteen members “would
be too small to meet the numerosity requirement”); see also id. at 330 n.14 (collecting cases in
which courts have refused to certify classes consisting of fewer than fifty members).
Given the undisputed small size of the potential class, it is critical that Plaintiffs not treat
proving impracticability of joinder as merely a formality. Plaintiffs have had ample opportunity
to conduct class discovery and investigate the true size of the putative class since they initially
filed their complaint 2021. See generally Speer I, 2022 WL 3971036. But they present no such

evidence to the Court. This failure weighs decisively against accepting Plaintiffs’ bare assertion
that numerosity is satisfied. See Turnage, 307 F. App’x at 922 (rejecting a plaintiff’s class size
estimate as too speculative when “[Plaintiff] has not produced concrete evidence of numerosity
despite having had ample opportunity to do so”).
Plaintiffs have presented no evidence of any other issues suggesting that joinder is
impracticable, such as difficulty identifying class members or geographic dispersion of class
members. See id., 307 F. App’x at 921. Class members would be easy to identify since

at 14–15.) However, there is no evidence that all of these forty-four individuals actually fall
within the narrowed class definition, only that they expressed interest in being a part of the class.
Defendant certainly has records of all the employees that it terminated as evidenced by the
notices of termination that Plaintiffs have provided. (See e.g., Doc 34-3.) Furthermore,
Defendant only operated sites in Oak Ridge, Tennessee, so geographic dispersion of class
members cannot make joinder impracticable. (Doc. 12, at 2.)
Plaintiffs have not carried their burden of showing that joinder is impracticable.

B. Rule 23(b) Requirements
Even if Plaintiffs were to satisfy Rule 23(a), they still have to satisfy at least one of the
three paths to certification under Rule 23(b). Coleman v. Gen. Motors Acceptance Corp., 296
F.3d 443, 446 (6th Cir. 2002). Plaintiffs move to certify the class under 23(b)(1)(A), 23(b)(2),
and 23(b)(3). (Doc. 19 at 11–12.) However, Plaintiffs have not shown any of these paths is
appropriate.
i. Rule 23(b)(1)(A)
Rule 23(b)(1)(A) is applicable in cases where a defendant “is obliged by law to treat the
members of the class alike.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614 (1997). To

proceed under 23(b)(1)(A), a plaintiff must show that prosecuting separate actions by individual
class members would create a risk of “inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct for the party
opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). However, “the fact that some plaintiffs may
be successful in their suits against a defendant while others may not, is clearly not a ground for
invoking Rule 23(b)(1)(A).” In re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305 (6th Cir.
1984); see also Emps. Ins. of Wausau v. Fed. Deposit Ins. Corp., 112 F.R.D. 52, 54 (E.D. Tenn.
1986) (“Rule 23(b)(1)(A) does not include a situation in which the risk of inconsistent results in
a series of individual actions would only mean that [a defendant] might . . . have to pay damages
to some claimants but not to others.”).
Plaintiffs argue that litigating the claims of the class members individually “will
undoubtedly create inconsistent and varying adjudications and establish incompatible standards
of conduct for UCOR,” (Doc 19, at 11), because “one court may find that [Defendant] may

enforce its vaccine mandate over religious objections and another court finds it may not.” (Doc.
34, at 15 (quoting Doster v. Kendall, 342 F.R.D. 117, 128 (S.D. Ohio 2022).) This is not true in
the Title VII context. Since the reasonableness of an accommodation and the undue hardship an
accommodation would cause depend on facts specific to each employee, a court could not give
Defendant permission to have a policy of always denying religious accommodations. See Smith
v. Pyro Min. Co., 827 F.2d 1081, 1085 (6th Cir. 1987). As explained below, see infra Section
III.B.iii.a., an employer must evaluate each employee’s accommodation request individually to
determine if an accommodation is reasonable.7
Furthermore, it is not an inconsistent obligation for Defendant to have to reinstate or pay

damages to one employee but not another. See Snead v. CoreCivic of Tenn., LLC, No. 3:17-cv-
0949, 2018 WL 3157283, at *14 (M.D. Tenn. June 27, 2018) (stating that Rule 23(b)(1)(A)
“requires more than a risk that separate judgments would oblige [defendant] to pay damages to
some class members but not to others”) (quotations and citations omitted). Here, some
employees may prove their case while others may not. One employee might have had a
sincerely held religious belief; another might not have. One employee’s duties might have been
compatible with a reasonable accommodation; another employee’s duties might not have.

7 Plaintiffs are aware of this fact, as they allege Defendant wrongly refused to consider on a case-
by-case basis whether their beliefs could be accommodated. (Doc. 12, at 9.)
Plaintiffs have not established that they can proceed under 23(b)(1)(A).
ii. Rule 23(b)(2)
A class may be certified under 23(b)(2) if “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). Whether a class action can proceed under 23(b)(2) depends on whether “the conduct is
such that it can be enjoined or declared unlawful only as to all of the class members or as to none
of them.” Dukes, 564 U.S. at 360 (citations omitted). The Sixth Circuit has noted that 23(b)(2)
is a “narrow” path which “does not permit plaintiffs to seek relief that would require a court to
issue different injunctions . . . on a member-by-member basis.” Doster, 54 F.4th at 439
(quotations and citations omitted). Furthermore, “23(b)(2) does not authorize class certification
when each class member would be entitled to an individualized award of monetary damages.”
Dukes, 564 U.S. at 360–61. Therefore, 23(b)(2) is not appropriate when monetary damages are
anything more than “incidental to the injunctive and declaratory relief” that a class seeks. Davis,

717 F.3d at 491 (citations omitted).
Plaintiffs assert that the class can be certified under 23(b)(2) since Defendant refused to
accommodate all class members. (Doc. 19, at 11–12.) However, the injunctive remedy
Plaintiffs seek is reinstatement (Doc. 12, at 17), and reinstatement will only be appropriate if an
accommodation was reasonable as to an individual employee.8 See Smith, 827 F.2d at 1085.
Since this requires an individualized analysis, see infra Section III.B.iii.a., not an assessment of
whether Defendant acted reasonably towards the class as a whole, the Court cannot grant

8 This is unlike the class certified in Doster, where the plaintiffs sought to enjoin the Air Force’s
system of evaluating accommodation requests, which could be done via a single injunction. 54
F.4th at 440.
reinstatement to all employees in one stroke. Moreover, Plaintiffs seek significant individualized
damages in the form of “back pay, reinstatement or front pay, pre-judgment and post-judgment
interest, punitive damages, and compensatory damages.” (Doc. 12, at 17.) Plaintiffs note that
their damages would include “loss of income and employment, potential eviction and/or
homelessness, the loss of employer-based health insurance, the potential inability to pay for life-

saving medical treatments, and severe emotional distress such as anxiety and sleeplessness.” (Id.
at 16.) Such substantial damages are not incidental. See e.g., Davis, 717 F.3d at 491 (rejecting
certification under 23(b)(2) when a plaintiff sought backpay).
Plaintiffs have not established that they can proceed under the narrow path of 23(b)(2).
iii. Rule 23(b)(3)
Class certification under Rule 23(b)(3) requires a plaintiff to establish “predominance”
and “superiority.” Fed. R. Civ. P. 23(b)(3). “Predominance” means “that the questions of law or
fact common to class members predominate over any questions affecting only individual
members.” Id. “Superiority” means “that a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy.” Id.
a. Predominance
For a class be certified under 23(b)(3), a district court “must find that questions of law or
fact common to class members predominate over any questions affecting only individual
members.” Tyson Foods v. Bouaphakeo, 577 U.S. 442, 452 (2016) (citations omitted). The
predominance requirement is “far more demanding” than the commonality requirement of Rule
23(a)(2). Windsor, 521 U.S. at 623–24; see also Comcast Corp. v. Behrend, 569 U.S. 27, 34
(2013) (“If anything, Rule 23(b)(3)’s predominance criterion is even more demanding than Rule
23(a).”).
To evaluate predominance, “a court must first characterize the issues in the case as
common or individual and then weigh which predominate.” Martin v. Behr Dayton Thermal
Prods., LLC, 896 F.3d 405, 413 (6th Cir. 2018). The court must ask “whether the common,
aggregation-enabling, issues in the case are more prevalent or important than the non-common,
aggregation-defeating, individual issues.” Bouaphakeo, 577 U.S. at 453. “Considering whether

questions of law or fact common to class members predominate begins, of course, with the
elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563
U.S. 804, 809 (2011).
Here, Plaintiffs claim that Defendant failed to accommodate their religious beliefs as
required by Title VII. (Doc. 12, at 9–10.) To establish a prima facie case for failure-to-
accommodate under Title VII, a plaintiff must show:
(1) He holds a sincere religious belief that conflicts with an employment requirement;
(2) He has informed the employer about the conflict; and
(3) He was discharged or disciplined for failing to comply with the conflicting
employment requirement.
Bolden, 783 F. App’x at 597 (citations omitted). To establish the threshold element, a plaintiff
must prove to the factfinder “(1) the belief for which protection is sought [is] religious in [a]
person’s own scheme of things, and (2) [it] is sincerely held.” Redmond v. GAF Corp., 574 F.2d
897, 901 n.12 (7th Cir. 1978) (quotations omitted); see Kent v. Johnson, 821 F.2d 1220, 1224
(6th Cir. 1987) (applying the test laid out in Redmond in the First Amendment context). After a
plaintiff establishes a prima facie case, the burden shifts to the employer to show that it could not
reasonably accommodate the employee without “undue hardship.” Tepper v. Potter, 505 F.3d
508, 514 (6th Cir. 2007). If the employer demonstrates that any accommodation would cause
undue hardship, then it is not liable, even if no accommodation is provided. See Smith v. Pyro
Min. Co., 827 F.2d 1081, 1086 (6th Cir. 1987) (“An employer may nonetheless establish undue
hardship without actually putting an accommodation into effect”).
The two central questions in this case are therefore: (1) whether each employee’s
objections to Defendant’s vaccine requirement were based on their sincerely held religious
beliefs and (2) whether an accommodation could be granted to each employee without undue
hardship. These are inherently individualized questions which will predominate over any shared

issues.9
1. Sincerely Held Religious Beliefs
As a threshold matter in a failure-to-accommodate claim under Title VII, a plaintiff must
prove that she has a sincerely held religious belief which conflicts with an employment
requirement.10 Bolden, 783 F. App’x at 597. This requires a factfinder to determine “(1)
whether the belief or practice asserted is religious in the person’s own scheme of things, and (2)
whether it is sincerely held.” Kent, 821 F.2d at 1224 (6th Cir. 1987) (emphases added). 11

9 In arguing that common issues predominate, Plaintiffs simply assert that “it is clear that
common questions of law and fact predominate, and, as such, class certification would achieve
economies of time, effort, and expense.” (Doc. 34, at 16). Plaintiffs claim these common
questions are: “(1) Has UCOR followed a de facto policy of rejecting religious exemptions
based on its generalized undue hardship analysis? (2) Has UCOR followed a discriminatory
policy of treating religious exemptions less favorably than other exemptions?” (Id.) Assuming
these questions could further the litigation by establishing whether Defendant individually
considered each Plaintiff’s exemption request, the only way to answer these questions would be
to look to see how Defendant handled the request of each Plaintiff. This would be a fac
intensive, individualized inquiry and would certainly not increase the efficiency of litigating
Plaintiffs’ claims.
10 Indeed, there can be no religious discrimination without this proof because only beliefs that fall
within the statutory definition of “religion” qualify for protection under Title VII. 42 U.S.C. §
2000e(j) (“The term ‘religion’ includes all aspects of religious observance and practice, as well
as belief . . . .”); see Peterson v. Wilmur Commc’ns, Inc., 205 F. Supp. 2d 1014, 1018 (E.D. Wis.
2002) (“As a threshold matter, the plaintiff must show that his or her beliefs constitute a
‘religion’ under the meaning of Title VII.”).
11 While neither the Supreme Court nor the Sixth Circuit have spoken at length about what it
means to have a sincerely held religious belief the Title VII context, both have extensively
discussed the issue in the context of the Constitution and the Religious Land Use and

“Religion” is defined broadly under Title VII to include “all aspects of religious
observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). However, because of this
broad definition, what constitutes a “religious belief” is a finding of fact specific to each
individual. A factfinder cannot determine if a belief is religious by simply looking to an
“external set of forces and rules that compel an individual to act one way or another,” such as the

official doctrine of a religious sect. Jones v. First Ky. Nat’l Corp., No. 84-5067, 1986 WL
398289, at *4 (6th Cir. July 17, 1986); see also Yaacov v. Mohr, No. 16-4361, 2018 WL
6333604, at *2 (6th Cir. June 5, 2018) (“Courts are not arbiters of scriptural interpretation . . .
and they must not presume to determine the place of a particular belief in a religion”) (quotations
and citations omitted). Instead, the question is “whether the belief or practice asserted is
‘religious’ in the ‘person’s own scheme of things.’” Jones, 1986 WL 398289 at *3 (quoting
United States v. Seeger, 380 U.S. 163, 185 (1969)).
Similarly, “sincerity is a factual finding.” See Ackerman v. Washington, 16 F.4th 170,
180 (6th Cir. 2021) (citing Cavin v. Mich. Dep’t of Corr., 927 F.3d 455, 459 (6th Cir. 2019).

While proving sincerity is generally “not a difficult hurdle,” the factfinder “need not take a
[plaintiff] at his word” that he is sincere in his beliefs. Id. at 180–81. Instead, the factfinder is
required “to determine whether the line drawn by the plaintiff between conduct consistent and
inconsistent with her or his religious beliefs reflects an honest conviction.” Id. To do so,
factfinders look at factors such as the plaintiff’s “length of adherence, knowledge about the

Institutionalized Persons Act. See United States v. Seeger, 380 U.S. 163, 185 (1969); see also
Cavin v. Mich. Dep’t of Corr., 927 F.3d 455 (6th Cir. 2019). As the language of “sincerely held
religious belief” is identical in the context of Title VII, it is appropriate to apply that precedent
here. See Redmond, 574 F.2d at 901 n.12 (“We believe the proper test to be applied to the
determination of what is ‘religious’ under [Title VII] can be derived from the Supreme Court
decisions [addressing religion outside of the Title VII context]”).
belief system, and the existence of religious literature and teachings supporting the belief.” Id.
A factfinder may also consider a plaintiff’s past behavior, including whether they have “wavered
in their dedication.” Id.
Here, Defendant contests whether each Plaintiff’s objection to the vaccine stemmed from
a sincerely held religious belief. (Doc. 29, at 5 n.3.) Therefore, for Plaintiffs to prove their

prima facie case, a factfinder would have to examine whether a belief is religious in the
“person’s own scheme of things.” Jones, 1986 WL 398289, at *4. That all named Plaintiffs are
Christian does not end the inquiry since whether a belief is “religious” is not established solely
by looking at any official doctrine. Jones, 1986 WL 398289 at *4; (Doc. 12, at 5.); Regardless,
there is nothing to suggest that all other class members share identical beliefs to Plaintiffs and, in
fact, there is evidence that class members hold a wide range of beliefs. (Doc. 39, at 14.) For
instance, one of the proposed class members is a member of The Satanic Temple. (Id.) Even if
all class members did hold the same beliefs, a factfinder still would have to determine the
sincerity of each person’s beliefs. This requires an in depth look at each class member’s

background, including the recency of belief and how strictly the class member has adhered to the
belief. See Ackerman, 16 F.4th at 181.
The issues of religious belief and sincerity would predominate over any shared questions
of law and fact.
2. Undue Hardship and Reasonable Accommodations
In a failure-to-accommodate case, an employer is not liable for failing to provide an
accommodation if it proves that any accommodation would cause its business undue hardship.
See Smith, 827 F.2d at 1086. Because each employee has unique responsibilities and workplace
interactions, determining what constitutes an undue hardship “necessarily depends upon its own
facts and circumstances, and . . . the unique circumstances of the individual employer-employee
relationship.” Id. at 1085 (quoting Redmond, 574 F.2d at 902–03). This is because “undue
hardship” does not only refer to the economic cost of providing an accommodation. Employers
may consider more intangible costs like the loss of office efficiency and the safety risk an
accommodation can pose to other employees. See Trans World Airlines, Inc. v. Hardison, 432

U.S. 63, 84 (1977) (finding undue hardship “in the form of lost efficiency in other jobs”); see
also EEOC. v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010) (“A religious accommodation
that creates a genuine safety or security risk can undoubtedly constitute an undue hardship”).
The Supreme Court recently reaffirmed that the undue-hardship test must be applied “in a
manner that takes into account all relevant factors in the case at hand, including the particular
accommodations at issue and their practical impact in light of the nature, size, and operating cost
of an employer.” Groff, 600 U.S. at 470.
For the same reason, “[t]he reasonableness of an employer’s attempt at accommodation
cannot be determined in a vacuum. Instead, it must be determined on a case-by-case basis.”

Smith, 827 F.2d at 1085; see Riselay v. Sec’y of Health & Hum. Servs., No. 90–1779, 1991 WL
44319, at *5 (6th Cir. 1991) (“The term ‘reasonable accommodation’ is a relative term and
cannot be given a hard and fast meaning. Each case involving such a determination necessarily
depends upon its own facts and circumstances.”). What is reasonable for one employee might be
unreasonable for an employee with different duties and responsibilities. Id. As a result, “[t]he
trier of fact is in the best position to weigh these considerations.” Smith, 827 F.2d at 1085.
What it means for an accommodation to be “reasonable” and for a hardship to be
“undue,” is an inherently individualized analysis which depends on the duties and
responsibilities of each employee. See Smith, 827 F.2d at 1085; see also Haliye v. Celestica
Corp., No. 06-cv-4769, 2009 WL 1653528, at *8 (D. Minn. June 10, 2009). (“Each plaintiff’s
[failure to accommodate claim] presents a unique combination of factors that bear on the issues
of reasonable accommodation and undue hardship.”).
Here, Plaintiffs seek to represent a class which includes not just UCOR employees but
also “staff augmentation employees and subcontractors.” (Doc. 32, at 2.) Plaintiffs do not argue

that class members have similar job responsibilities or worked under similar conditions. Indeed,
even the three named Plaintiffs do not have the same job titles or responsibilities. (Doc. 29, at
4.) A factfinder would have to conduct an analysis of what would be a reasonable
accommodation or an undue hardship for each employee, taking into account their different
positions and responsibilities within UCOR. A finding in one case that an accommodation is
reasonable or unreasonable for one employee has little bearing on whether the accommodation is
reasonable for any other employee. See Riselay, 1991 WL 44319, at *5.
Plaintiffs suggest that, since Defendant developed a chart it used to assess undue
hardship, “the question of undue hardship [is] easier to answer universally as to each putative

class member.” (Doc. 43, at 9.) It is true that Defendant calculated the fixed monetary costs of
some accommodations. (Doc. 16-15 in Speer I.) For instance, Defendant calculated that the
annual cost of weekly COVID-19 testing would be $19,240 per employee. (Id.) However,
Plaintiffs point to no case law that would preclude Defendant from arguing undue hardship as it
relates to each individual employee in the present litigation. Moreover, is it not clear that
Defendant based its undue hardship analysis solely off this chart, given that Defendant states that
its review committee also interviewed each employee and deliberated internally over whether to
grant each request. (Doc. 39, at 6.)
Individualized determinations would inevitably predominate over any shared questions of
law or fact.12
b. Superiority
Plaintiffs must also show that a class action is the superior method of adjudicating a

claim. Fed. R. Civ. P. 23(b)(3). “In considering whether the superiority requirement of Rule
23(b)(3) is satisfied, courts consider ‘the difficulties likely to be encountered in the management
of a class action.’” Young, 693 F.3d at 545 (quoting Beattie v. CenturyTel, Inc., 511 F.3d 554,
567 (6th Cir. 2007). “Where many individual inquiries are necessary, a class action is not a
superior form of adjudication.” Id. (citations omitted). Furthermore, “[w]here it is not

12 Plaintiffs seem to suggest that if they proceed with their action under “the pattern-or-practice
framework set out in International Brotherhood of Teamsters,” sincere religious belief and
undue hardship need not be considered. (Doc. 34, at 2–5); see generally Int’l Bhd. of Teamsters
v. United States, 431 U.S. 324 (1977). However, pattern or practice is simply an evidentiary
framework used to show disparate treatment. See Serrano v. Cintas Corp., 699 F.3d 884, 897
(6th Cir. 2012) (describing Teamsters pattern or practice claims as a “burden-shifting evidentiary
framework”); see also Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 183 (3d Cir. 2009)
(“The Teamsters framework was judicially promulgated as a method of proof for pattern-or-
practice claims”); see also United States v. City of New York, 717 F.3d 72, 83 (2d Cir. 2013)
(“[A] pattern or practice case is not a separate and free-standing cause of action . . . but is really
merely another method by which disparate treatment can be shown.”) (citations omitted). It is
true that pattern or practice is often used for class action suits under Title VII, see e.g., Brown v.
Nucor Corp., 785 F.3d 895 (4th Cir. 2015), but pattern or practice does not change the
substantive elements a plaintiff must prove to establish a Title VII violation. See Hohider, 574
F.3d at 190 (“[T]he ADA, and not the Teamsters method of proof, dictates what substantive
elements are necessary to reach a determination . . . of unlawful discrimination.”). What a
plaintiff must establish to prove a failure-to-accommodate claim arises from the explicit
definition of religion in Title VII. 42 U.S.C. § 2000e(j) (“The term ‘religion’ includes all aspects
of religious observance and practice, as well as belief, unless an employer demonstrates that he is
unable to reasonably accommodate [] an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s business.”).
The statute requires each Plaintiff to prove his beliefs are religious within the meaning of Title
VII, and to avoid liability Defendant must prove an accommodation could not be granted without
undue hardship. Id.; see Redmond, 574 F.2d at 901 (noting that the elements of failure-to-
accommodate claims arise from 42 U.S.C. § 2000e(j)). Plaintiffs cannot prove their claims
without addressing these issues.
economically feasible to obtain relief within the traditional framework of a multiplicity of small
individual suits for damages, aggrieved persons may be without any effective redress unless they
may employ the class-action device.” Id. (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S.
326, 339 (1980)).
Plaintiffs assert that a class action “would achieve economies of time, effort, and

expense, and promote uniformity.” (Doc. 34, at 16 (quoting Myers v. Hertz Corp., 624 F.3d 537,
547 (2d Cir.2010).) However, Plaintiffs have presented no evidence to the Court as to why this
is the case. Given the number of individualized inquiries necessary to resolve each Plaintiff’s
claim, a class action would quickly devolve into a series of individual claims. Furthermore,
given that Plaintiffs allege that they have suffered serious injuries and are seeking significant
damages, it is certainly worth a plaintiff’s time and effort to bring suit on his own. (Doc. 12, at
16.)
Because Plaintiffs have not established predominance or superiority, they cannot proceed
under 23(b)(3).

IV. CONCLUSION
For these reasons, Plaintiffs’ motion for class certification (Doc. 18) is DENIED.13
SO ORDERED.

/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

13 Despite not certifying the proposed class, the Court emphasizes that it does not pass judgment
on the merits of any individual plaintiff’s claims. The Court merely finds that Plaintiffs’ claims
are not suitable for class treatment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10435675. Public record. Not legal advice.