The opinion
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6 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 GABRIEL CHAVEZ, et al.,
11 Plaintiffs, No. C 22-06119 WHA
12 v.
13 SAN FRANCISCO BAY AREA RAPID ORDER GRANTING DEFENDANT'S
TRANSIT DISTRICT, MOTION IN LIMINE NO. 3
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Defendant.
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17 INTRODUCTION
18 In this Title VII religious accommodation action, defendant-employer seeks to exclude
19 evidence of requests for religious exemptions from employees who are not plaintiffs in this
20 action. This motion in limine is GRANTED, unless defendant opens the door.
21 STATEMENT
22 During the pandemic, BART’s Board of Directors approved a mandate requiring all
23 employees and board members to be vaccinated against COVID-19. The mandate created an
24 exemption and accommodation procedure for those who qualified for either medical or
25 religious accommodations. A total of 205 employees submitted requests for exemptions and
26 accommodations: 181 sought religious exemptions, 17 sought medical exemptions, and 7
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1 requested both.* Of the 188 requests for religious exemption and accommodation, 40
2 applicants did not complete the application process. Of the 148 that did, 70 were granted
3 religious exemptions, the remainder denied. Of the 70 who were granted exemptions, none
4 were granted an accommodation.
5 Of the 24 medical exemption and accommodation requests, 10 completed the process,
6 and eight were granted an accommodation, namely, an unpaid leave of absence until such time
7 as the employee could be vaccinated. No employee was permitted to work while unvaccinated.
8 Plaintiffs’ Title VII and FEHA claims went to trial on July 8, 2024. At the time of the
9 pretrial conference, there were 20 plaintiffs remaining in the three consolidated actions (Dkt.
10 No. 115 at 3). After a week of evidence and roughly three days of deliberation, the jury came
11 to an impasse, and ultimately stalled. The Court accepted a partial verdict for each plaintiff on
12 their prima facie case, the jury was discharged, and a retrial on the remainder of the issues was
13 set for October 15 (Dkt. No. 151). At the time of this order’s filing, 8 plaintiffs are set to retry
14 their claims, the remainder having settled.
15 PROCEDURAL HISTORY
16 Prior to the first trial, BART brought a motion in limine to exclude evidence or argument
17 concerning the denial of requests for religious exemption or accommodation not in suit under
18 Federal Rules of Evidence 403. That motion was granted in part and denied in part. The final
19 pretrial order held:
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The fact that BART was unable to accommodate any individual
21 with a religious exemption may be relevant. However, there is a
risk that valuable trial time will be wasted litigating the propriety
22 of individual accommodation decisions not in suit. To minimize
that risk, plaintiffs will be allowed to elicit evidence regarding the
23 total number of exemptions and accommodations requested and
granted from only one witness. Plaintiffs agreed that that will be
24 BART director of leave management Rodney Maplestone, who
was involved in the consideration of every accommodation
25 request. A limiting instruction will be given if necessary. Plaintiffs
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* The numbers relied upon are taken from the declaration of Rodney Maplestone in support of
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BART’s opposition to plaintiffs’ motion for class certification (Dkt. No. 42-1). There has been
may not otherwise elicit such testimony.
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2 (Dkt. No. 115 at 5).
3 At trial, plaintiffs did not introduce any such evidence, despite ample opportunity to do
4 so. On August 28, after the conclusion of the first trial, the Court issued an order to show
5 cause stating that “[o]n further reflection, the Court is inclined to reverse itself and hold that
6 any evidence pertaining to exemption and accommodation requests and determinations not in
7 suit should be excluded” (Dkt. No. 170). That order invited, and the Court received, further
8 briefing on the issue. This order follows.
9 ANALYSIS
10 Rule 403 provides that:
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The court may exclude relevant evidence if its probative value is
12 substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
13 jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
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15 FRE 403.
16 Having received the benefit of hearing all the evidence at trial, this order reverses the
17 final pretrial order’s holding as to defendant’s third motion in limine. Introduction of evidence
18 or argument pertaining to exemption and accommodation requests and determinations not in
19 suit are excluded. That evidence, even if introduced in the limited manner set out in the final
20 pretrial order, presents a danger of unfair prejudice and undue delay that substantially
21 outweighs its probative value.
22 1. THE PROBATIVE VALUE OF THE EVIDENCE IS MINIMAL.
23 BART’s exemption and accommodation decisions (and plaintiffs’ prima facie case and
24 defendant’s affirmative defense at trial) rest on highly individualized inquiries. An exemption,
25 for example, required a bona fide religious belief that conflicted with the vaccine requirement.
26 Applicants for the religious exemption presented a broad swathe of religious beliefs:
27 “Christianity,” “the teachings of the bible,” “Catholic,” “Islamism,” “non-denominational
1 tenet necessitating abstention varied. Those who professed some form of Christian belief, for
2 example, cited qualms with the research and development process of the vaccines, the
3 alteration of a divinely created immune system, and the injection of “foreign biological
4 substances.” Some provided letters from various pastors and churches, or certificates of
5 baptism. Others appended United Nations declarations and California Assembly bills to their
6 exemption requests. Others still expressed concerns about the medical consequences of
7 vaccination and cited to public resources such as the CDC’s Vaccine Adverse Event Reporting
8 System. Some provided supplemental documentation upon BART’s invitation, others were
9 interviewed by a panel of BART employees. Whether or not any one request did in fact rest on
10 a bona fide religious belief presents an individual inquiry that requires the consideration of
11 evidence pertaining to the applicant, and only the applicant. It is unlikely that the testimony of
12 any one plaintiff in this suit, for example, will shed any light on the propriety of BART’s
13 exemption decisions not in suit.
14 BART’s accommodation decisions (and affirmative defense at trial) are likewise
15 individualized inquiries. True, BART’s position – that the health and safety risk posed by
16 unvaccinated employees constituted an undue hardship – is, to some degree, susceptible to
17 common proof. The testimony of BART’s expert epidemiologist and expert industrial
18 hygienist, for example, go to the relative efficacy of the COVID-19 vaccine and other potential
19 accommodations, and illuminate BART’s decision-making as a general matter. Determining
20 the propriety of any one accommodation decision nevertheless requires a return to individual
21 facts. It is not enough that the vaccine was the most effective means of protecting employees
22 and patrons: BART must ultimately establish that the particulars of each plaintiff’s essential
23 job duties did not allow for an accommodation absent undue hardship.
24 The latter issue proved crucial to the first jury’s analysis of BART’s affirmative defense.
25 Plaintiff Phi Le is illustrative. Plaintiff Le was employed as a community service officer in the
26 special parking enforcement team. He testified that he “was responsible for going to a certain
27 station [each] day and just patrolling the parking lots and writing citations if I needed to” (Dkt.
1 employees used his car when he clocked out, and that the low ridership during the pandemic
2 meant that he spent his day “patrolling . . . empty lots” (Dkt. No. 153 at 82). The rare patron
3 interaction took place outdoors, from a significant distance. Plaintiff Le further attested to
4 various specific accommodations that would all but eliminate the time he spent in BART
5 locker rooms, bathrooms, and other indoor facilities.
6 BART, meanwhile, argued that Plaintiff Le’s work “had to be done in person and could
7 not be isolated from other people, not from other employees and not from patrons. They
8 worked face-to-face with the public and other employees” (Dkt. No. 153 at 32). BART’s chief
9 of police, Kevin Franklin, testified that because the pandemic largely eliminated the need for
10 parking enforcement, Plaintiff Le was re-assigned to “station duty” (Dkt. No. 155 at 160). Per
11 Chief Franklin, Plaintiff Le’s duties included “being visible around fare gates and public areas
12 of the station, riding trains, and providing a uniform presence to reassure the public,” all of
13 which increased his public exposure “from normal parking duties” (ibid.). In sum, while
14 Plaintiff Le testified that the pandemic had resulted in a daily routine void of interpersonal
15 interactions, BART asserted its response to the pandemic increased Plaintiff Le’s public
16 exposure from normal parking duties.
17 These details proved crucial to the first jury’s evaluation of BART’s accommodation
18 decision as to Plaintiff Le. The jury issued a note requesting a timeline of Plaintiff Le’s
19 parking duties (to which he testified) as opposed to his station duties (to which Chief Franklin
20 testified), and a significant portion of the two witnesses’ testimony was re-read to the jury
21 (Dkt. No. 147 at 2).
22 The same is true for those who worked as station agents (such as Plaintiffs Harrison and
23 Richardson). BART labored during the first trial to establish that “station agent work has to be
24 done in person, cannot all be behind the glass in the booth, and important parts of it involve
25 being face-to-face with patrons and other employees,” while plaintiffs testified that, in their
26 day-to-day practice, they managed to perform the duties asked of them with little to no contact
27 with others (Dkt. No. 153 at 32). Plaintiffs who worked as train conductors likewise testified
1 BART introduced evidence suggesting that those same job duties required close contact with
2 patrons.
3 Given the individualized nature of those inquiries, the probative value, if any, of
4 outcomes not in suit is minimal.
5 2. THE EVIDENCE’S MINIMAL PROBATIVE VALUE IS SUBSTANTIALLY
OUTWEIGHED BY THE DANGER THAT IT WILL CONFUSE THE ISSUES, UNFAIRLY
6 PREJUDICE BART, CAUSE DELAY AND WASTE TIME.
7 Plaintiffs argue that accommodation requests not in suit are “highly relevant” to the
8 extent that they reflect “[t]he extent to which an employer has engaged in the interactive
9 process and presented potential accommodations” (Dkt. No. 77 at 7).
10 First, introduction of the evidence for that purpose is likely to confuse the issues.
11 Plaintiffs’ argument regarding BART’s engagement with the “back-and-forth” of the
12 accommodation process was addressed on summary judgment. A March 2024 order
13 explained:
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[P]laintiffs argue that BART’s burden must be taken up in two
15 consecutive steps: “the employer must start by demonstrating that
it made a good faith effort to accommodate the religious beliefs of
16 the employee. After proving that it made those good faith efforts
and that the attempts were unsuccessful, the employer must show
17 an undue hardship” (Reply 11). Plaintiffs quote Heller v. EBB
Auto Co.’s directive that “at a minimum, the employer [is] required
18 to negotiate with the employee in an effort reasonably to
accommodate the employee’s religious beliefs” (Reply 12). 8 F.3d
19 1433, 1438 (9th Cir. 1993). The argument goes: no plaintiffs were
offered accommodation, therefore no reasonable effort was made,
20 therefore BART fails before ever reaching undue hardship (Reply
12). However, the sentence immediately after the Heller passage
21 quoted by plaintiffs reads: “[t]he employer need not make such an
effort if it can show that any accommodation would impose
22 undue hardship.” 8 F.3d at 14[40].
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(Dkt. No. 72 at 15) (emphasis added). The issue of an employer’s engagement with the
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interactive process and presentation of potential accommodations is tangential. Moreover,
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each plaintiff testified extensively as to their impressions of BART’s engagement in exactly
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that process during the first trial. They will no doubt do the same during the second. To allow
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1 plaintiffs to introduce cumulative evidence on this point would only lead the jury further astray
2 from the issues to be decided.
3 Second, introduction of this evidence will either unfairly prejudice BART or waste time
4 and cause delay. Plaintiffs have made clear that they expect this evidence to support the
5 inference that BART did not give genuine consideration to any of the exemption or
6 accommodation decisions at issue. BART cannot combat that inference absent significant
7 delay and waste of trial time.
8 There are now only eight plaintiffs remaining in suit. About 138 completed exemption
9 and accommodation requests are therefore out of suit. BART’s rebuttal of the inference
10 plaintiffs wish to levy against them will require a march through each of those decision, first to
11 address the degree to which BART did or did not engage in a good faith back-and-forth with
12 the individual applicant, and second to lay out the grounds for BART’s rejection of the
13 individual applicant’s exemption or accommodation. Plaintiff Le’s example above is
14 illustrative of the factual nuances that need be addressed in any such effort. The jury and the
15 Court do not have the time and resources necessary to endure that march, in light of the
16 minimal relevance and probative value of the evidence. Nor can BART be asked to simply
17 live with the inference that they rejected every applicant out of hand, absent an opportunity to
18 present that countervailing evidence.
19 Plaintiffs’ contrary arguments do not move the needle.
20 First, plaintiffs argue that Groff v. DeJoy requires consideration of the decisions not in
21 suit, quoting the Supreme Court’s instruction that the test be applied “in a manner that takes
22 into account all relevant factors in the case at hand, including the particular accommodations
23 at issue and their practical impact in light of the nature, size, and operating cost of an
24 employer.” 600 U.S. 4447, 470-71 (2023) (emphasis added). The “particular accommodations
25 at issue” “in the case at hand” are those that are in suit. As detailed above, the out-of-suit
26 exemption and accommodation decisions have little bearing on “the particular
27 accommodations at issue” here. The inquiry is an individualized one, and the fact that some
1 number of individuals had their requests denied has little bearing on whether Plaintiff Le, for
2 example, could be reasonably accommodated without undue hardship to BART.
3 Second, plaintiffs cite to appellate decisions in “corollary Title VII contexts” that have
4 admitted evidence regarding accommodations not in suit and suggest that not doing so here
5 “would appear to constitute reversible error” (Dkt. No. 178 at 4-6).
6 The decisions cited each considered claims of disparate treatment and are therefore
7 inapposite. Legg v. Ulster County is illustrative. 820 F.3d 67 (2d Cir. 2016). The appellant, a
8 corrections officer employed in defendant county’s jail, claimed that the county “unlawfully
9 discriminated against her on the basis of her pregnancy when it denied her request for an
10 accommodation under its light duty policy, pursuant to which only employees injured on the
11 job were eligible for light duty assignments.” Id. at 69. Leggs explained that a pregnancy
12 discrimination claim founded on a disparate treatment theory requires a plaintiff to show that:
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(i) “that she belongs to the protected class,” (ii) “that she sought
14 accommodation,” (iii) “that the employer did not accommodate
her,” and (iv) “that the employer did accommodate others “similar
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Id. at 73 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 208 (2015)) (emphasis
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added). The burden then shifts to the defendant-employer, and assuming the employer
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successfully rebuts the above, the burden returns to the plaintiff, who must show that the
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employer imposed a “significant burden on pregnant workers,” such as “by showing ‘that the
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employer accommodates a large percentage of nonpregnant workers while failing to
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accommodate a large percentage of pregnant workers.’” Id. at 74 (quoting Young, 575 U.S. at
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209). That plaintiffs asserting a disparate treatment theory ought to be able to admit evidence
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of employer actions not in suit is a matter of common sense: how else is a plaintiff to prove
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that they were treated differently from others?
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Plaintiffs’ case does not rest on a disparate treatment theory. Indeed, BART did not
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allow any workers to work unvaccinated while the mandate was in place. Evidence of
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exemption and accommodation decisions not in suit have minimal probative value to the
1 theories that are at issue here. That value is substantially outweighed by the danger of
2 confusing the issues, prejudicing BART, and causing delay and waste of time.
3 CONCLUSION
4 For the aforementioned reasons, defendant’s third motion in limine is GRANTED, unless
5 defendant opens the door.
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7 IT IS SO ORDERED.
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9 Dated: October 1, 2024.
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WS Pre
WILLIAM ALSUP
12 UNITED STATES DISTRICT JUDGE
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