# Savel v. MetroHealth System

> District Court, N.D. Ohio · October 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10664801

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest’’

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FRANK SAVEL, ) CASE NO. 1:22-CV-02154
)
Plaintiff, ) JUDGE DONALD C. NUGENT
)
Vv. )
)
THE METROHEALTH SYSTEM, ) MEMORANDUM OF OPINION
) AND ORDER
Defendant. )
)
) (This Order Resolves Docket
) Entries ECF #55, ECF #64, ECF #66,
) and ECF #68)

This case is before the Court on Defendant The MetroHealth System’s (“MetroHealth”)
Motion for Summary Judgment (ECF #55), filed on July 29, 2024. Plaintiff Frank Savel (“Savel”)
filed his opposition to the motion on August 19, 2024 (ECF #60). MetroHealth filed its reply on
August 26, 2024 (ECF #62). The summary judgment motion is now ready for decision.
For the reasons stated below, Defendant MetroHealth’s Motion for Summary Judgment
(ECF #55) is GRANTED, and the case is dismissed in its entirety.!
Also pending before the Court are Defendant’s Motion to Exclude Dr. Stan V. Smith’s
Expert Reports and to Preclude Dr. Smith from Providing Expert Testimony (ECF #64);
Defendant’s and Non-Party Dr. Boutros’ Motion to Quash Plaintiff's Subpoena Duces Tecum to
Akram Boutros, M.D. (ECF #66); and Plaintiff's Motion to Compel and Objection to the
Supplemental Declaration of Amanda Calabrese (ECF #68). Given the Court’s grant of summary

FACTUAL AND PROCEDURAL HISTORY ”

This case began as a 46-plaintiff, six-Count Class Action Complaint for Injunctive Relief
and Damages (ECF #2) (“Complaint”), wherein Plaintiff Frank Savel (identified as “Named
Plaintiff 1”) and 45 other named Plaintiffs alleged that Defendant MetroHealth discriminated
against them on the basis of religion, in alleged violation of: Title VII, 42 U.S.C. §2000e, et seq.
(Count I); the Free Exercise Clause of the First Amendment to the United States Constitution, U.S.
CONST. amend. I (Count II); Article 1, Section 1 of the Ohio Constitution, OHIO CONST. art. 1, § 1
(“Inalienable Rights”) (Count III); Article 1, Section 7 of the Ohio Constitution, OHIO CONST.
art.1, § 7 (“Rights of Religion”) (Count IV); the Free Exercise Clause of the First Amendment to
the U.S. Constitution, U.S. CONST., amend. I (Count V); and Ohio’s anti-discrimination statute,
OHIO REV. CODE § 4112 (Count VJ). The claims made in the Complaint were based on the facts
surrounding MetroHealth’s adoption of a COVID-19 vaccination policy for its workforce on

judgment for Defendant MetroHealth on the only claims remaining in the case, there is no longer
a need to rule on the issues raised in these motions, and they are each DENIED as moot.
This case was initially assigned to United States District Court Judge James S. Gwin of
this Court. (Unnumbered Docket Entry Following Entry ECF #4). On September 23, 2024, the
case was reassigned to this Court pursuant to N.D. Ohio General Order 2024-19. (Unnumbered
Docket Entry Following Entry ECF #71). The recitation of facts as it relates to events occurring
before July 2023 is drawn largely from the text of an earlier-filed opinion, issued by the Court, in
connection with a Motion to Dismiss all claims, filed by Defendant MetroHealth on March 23,
2023 (ECF #12), published as Savel v. MetroHealth Sys., Case No. 22-CV-01254, 2023 □□□□ Dist.
LEXIS 120089 (N.D. Ohio July 12, 2023) (Gwin, J.). As the citations supporting the factual
record pertinent to the earlier motion to dismiss are included (in footnote form) within the text of
the earlier-published opinion, they are not recreated here. Citations to newer events or
information now known from the parties’ subsequent discovery are included here. To provide
context to the overall history of the case, the plural “Plaintiffs” and other plural references to
MetroHealth employees used in the earlier recitation of facts are retained within the borrowed
text. The Motion for Summary Judgment now before the Court addresses what are the only
remaining claims of the single remaining Plaintiff, Frank Savel, but the basic facts are those
pertaining to all MetroHealth employees covered under the COVID-19 vaccination policy.
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August 26, 2021, requiring that all of its employees be either fully vaccinated against COVID-19
by October 30, 2021, or that they had, with accompanying documentation, requested exemption
from the requirement based on a health or medical condition or based on their religious beliefs.
(ECF #2, Complaint, ff 15-18, PageID #8-#9).
Defendant MetroHealth operates as a county-owned hospital in Cuyahoga County, Ohio.
MetroHealth employees work as state employees. On August 26, 2021, MetroHealth announced a
future requirement that its workforce be fully vaccinated against COVID-19 by October 30, 2021.
MetroHealth also announced that employees could, with proper documentation, request health-
and religion-based vaccine exemptions. With one exception among the 46 original Plaintiffs, the
Plaintiffs in this case made religious exemption requests related to MetroHealth’s vaccination
policy.
After receiving a much higher than expected number of exemption requests, on October
15, 2021, MetroHealth announced that it would not enforce the vaccine mandate against
exemption-seekers until the hospital had sufficient time to review the more than 400 exemption
requests that MetroHealth had received. Because MetroHealth had not been able to review all the
exemption requests by the date it initially expected to complete them, MetroHealth said it would
not discipline employees who had earlier submitted health or religious exemption requests until
MetroHealth could review their requests.
On February 7, 2022, MetroHealth blanket denied the pending exemption requests of all
those Plaintiffs who were still awaiting responses. Because the Plaintiffs included in the initial
group all had patient-facing or public-facing positions, MetroHealth told them that
accommodating their requests would cause the hospital undue hardship because the denied

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employees had job roles that could not be remotely performed. Plaintiff Frank Savel is a
Registered Nurse who was employed in the Medical Intensive Care Unit at MetroHealth (ECF #2,
Complaint, | 60, PageID #17), a patient-facing position.
With the February 7, 2022 communication, the hospital told the employees who received
exemption denials they would have 45 days to receive both COVID-19 vaccine doses. Under the
hospital’s February 7, 2022 notice, the 45-day vaccine documentation period would expire on
March 24, 2022.
Plaintiffs allege that MetroHealth categorically denied all religious accommodation
requests, but granted some health-related exemption requests.* The specific letter sent to Plaintiff
Frank Savel stated:
Your request for COVID-19 vaccination exemption has been carefully
considered and is denied. The information you provided established basis for
an exemption. However, reasonable accommodation is not available given
your role and job duties, and MetroHealth would face undue hardship in
granting your exemption request. You are not eligible for fully remote work,
and alternative protocols, such as masking, other protective equipment, regular
testing, and social distancing, are far less effective and would place you,
patients, coworkers, and others at significant risk. Because your position has
already been assessed and been determined ineligible for fully remote work,
and no other reasonable accommodation is available, this decision is not
subject to appeal.
(ECF #2, Complaint, § 63, PageID #17; see also ECF #55-12, Feb. 2, 2022 Vaccination
Exemption Request Response, PageID #3761). One day later, Savel made the decision to look for
employment outside of MetroHealth. (ECF #55-3, Savel Dep., pp. 111-113, 139, 217-218, PageID
#3713, #3719, #3727); ECF #55-13, Feb. 8, 2022 E-mail Accepting Invitation to Interview,
The evidence now shows that this assertion is not correct. In fact, MetroHealth received
316 non-medical/religious exemption requests, 19 of which were initially approved (ECF #55-2,
Supplemental Declaration of Amanda Calabrese, { 10, PageID #3697).
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PageID #3763). One week after that, Plaintiff Savel was offered and accepted a comparable
position at University Hospitals as a registered nurse in its Medical Intensive Care Unit, in what
was effectively the same position he held at MetroHealth. (ECF #55-3, Savel Dep., pp. 111-113,
217-220, PageID #3713, #3727; ECF #55-14, Feb. 16, 2022 E-mail Offer and Acceptance, PageID
#3764-#3765).
MetroHealth later changed its COVID-19 vaccine requirement..On March 15, 2022, and
before the earlier-announced March 24, 2022 deadline for all employees to be vaccinated against
COVID-19, MetroHealth amended its position to allow religious exemptions even for those
employees whose jobs were not classified as fully remote. In explaining its decision in March
2022 to grant the exemptions, MetroHealth’s CEO stated the change was motivated by a then-
declining rate of COVID-19 infections, and announced that the “costs and burdens in granting
non-medical exemptions [had] changed in a material way.”
With the change, the hospital granted all of the original Plaintiffs who were still at
MetroHealth their previously denied exemptions. The following day, the hospital explained that
unvaccinated employees would not be terminated but be required to continue wearing surgical
masks and to maintain social distancing whenever possible, including by not eating in group
environments such as the cafeteria or break room.
On November 30, 2022, Plaintiffs sued MetroHealth. With their lawsuit, Plaintiffs alleged
that MetroHealth violated Title VII by discriminating against Plaintiffs based on religion, and that
MetroHealth’s vaccination policies infringed on Plaintiffs’ First Amendment religion free exercise
rights. Plaintiffs also brought state-law claims under Articles 1 and 7 Section 1 of the Ohio
Constitution and [Ohio Revised Code] § 4112.

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On July 12, 2023, in ruling on a Motion to Dismiss filed by Defendant MetroHealth (ECF
#12), Judge Gwin of this Court (see note 2, supra) granted the Motion to Dismiss, finding that
some of the named Plaintiffs, who were still employed by MetroHealth at the time of the filing of
the Complaint, had not alleged an injury sufficient to give standing to bring their Title VII and
Ohio Revised Code § 4112 claims (Plaintiffs 10-46). As to the nine named Plaintiffs who had
resigned from MetroHealth prior to the filing of the lawsuit (Plaintiffs 1-9, which included Savel),
the Court found they had standing, but concluded they also had failed to state claims under Title
VI and Ohio Revised Code § 4112. Savel v. MetroHealth, 2023 U.S. Dist. LEXIS 120089, at *2.
Plaintiffs then appealed the dismissal to the United States Court of Appeals for the Sixth
Circuit (Case No. 23-3672). The Sixth Circuit ultimately made the following four rulings: (1) it
affirmed the dismissal as to the Plaintiffs who were still employed at MetroHealth, agreeing with
the district court that they could not establish standing; (2) it affirmed the dismissal of the claims
of those Plaintiffs who had resigned after submitting exemption requests but had not received a
denial of their requests, agreeing with the district court that they too lacked standing because such
facts did not support a claim of “constructive discharge”; (3) it affirmed the dismissal of two other
Plaintiffs for lack of standing as they had failed to even plausibly allege that they were forced to
resign; and (4) it reversed and remanded the case as to two Plaintiffs (Plaintiffs 1 and 2, Savel and
another who had resigned after MetroHealth had denied their requests for exemption but before
MetroHealth had decided to change its policy to grant all the pending requests for religious
exemptions). Savel v. MetroHealth, 96 F.4th 932 (6 Cir. 2024). As to Plaintiffs 1 and 2 (Savel
and another), the court of appeals held that, at least at the motion to dismiss stage of the case, these
Plaintiffs had pled sufficient allegations to survive dismissal on standing grounds and that they had

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“plausibly pleaded” their claim of failure to accommodate their religious practices and their claim
of disparate treatment:
According to the plaintiffs, MetroHealth gave no indication that it would
reconsider the denials during the forty-five days. When the grace period was
more than halfway over and MetroHealth still had not signaled that things might
change, Plaintiffs 1 and 2 left. These facts plausibly allege that MetroHealth
communicated to Plaintiffs 1 and 2 that they would be terminated after forty-five
days if they refused to be vaccinated on religious grounds. It is possible that
Plaintiffs 1 and 2 may lack standing at a later phase of this litigation based on
additional evidence about the certainty of termination. But plausibility is all that
is required at this stage, and “a well-pleaded complaint may proceed even if it
strikes a savvy judge . . . ‘that recovery is very remote and unlikely.’”
* ok
Plaintiffs 1 and 2 plausibly pleaded that MetroHealth failed to make reasonable
accommodations for their religious practices. * * * Plaintiffs 1 and 2 also
plausibly alleged that MetroHealth treated them differently from other employees
by forcing them to resign because of their religion. * * *
As with the failure-to-accommodate claim, the district court prematurely applied
the prima facie case requirements to the disparate treatment claim and found it
lacking. The district court expected too much of Plaintiffs 1 and 2 at this early
stage. Time — and, crucially, discovery — will tell whether Plaintiffs 1 and 2
satisfy the prima facie case requirements. The district court may ultimately be
right that they cannot make that showing. But at the pleading stage, it is too soon
to consider that question.
Savel, 96 F.4th at 942, 943-44,
After remand, Plaintiff 2 (Danielle Crockett) moved to dismiss her claims without
prejudice, on the ground that “the demands of litigation are unduly interfering with her current
employment and beyond her emotional stress tolerance at this time.” (ECF #39, Motion for
Dismissal of Claims of Plaintiff Danielle Crockett, p.1, PageID #1107). Defendant MetroHealth
opposed the motion to dismiss without prejudice, stating “Defendant does not oppose the dismissal
of Crockett’s claims, but contends that the dismissal should be with prejudice for several reasons,

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including, but not limited to, (1) the length of time that this matter has been pending, (2) Plaintiff
Crockett’s dilatory conduct in discovery, (3) the fact that her federal claim would be time-barred if
she tried to refile it in the future, and (4) the resulting prejudice to Defendant of having to defend
against Plaintiff Savel’s claims now, and Plaintiff Crockett’s in the future, which are derived out
of the same facts and circumstances, i.e., their requests for exemptions from MetroHealth’s
COVID-19 vaccination requirement.” (ECF #40, Defendant’s Response to Plaintiff Danielle
Crockett’s Motion for Dismissal Without Prejudice of Her Claims, p.1, PageID #1117).*
On June 18, 2024, MetroHealth filed a Motion for Leave to Supplement Response
Instanter to Plaintiff Danielle Crockett’s Motion for Dismissal of Her Claims (ECF #43), noting
that Plaintiff Crockett had never responded to Defendant MetroHealth’s interrogatories and
requests for production, which were due on April 22, 2024; she did not appear for her deposition
scheduled for June 11, 2014; she had not submitted a demand in accordance with the Court’s
Order Setting Mediation Conference (ECF #36), which had required that such a demand be made
“no later than 21 days prior to the mediation conference”; and that she had not appeared for the
court-ordered mediation held on June 18, 2024. (ECF #43, pp.1-2, PageID #1142-#1143).
While the Court is hereby denying as moot Plaintiff's Motion to Compel and Objection to
the Supplemental Declaration of Amanda Calabrese (ECF #68) and the related Defendant’s and
Non-Party Dr. Boutros’ Motion to Quash Plaintiff's Subpoena Duces Tecum to Akram Boutros,
MD. (ECF #66), the Court notes that the briefing on these motions reveals that as of September
20, 2024 (four days after the end of an already-extended discovery deadline [the original date of
which was effectively set by a July 29, 2024 dispositive motion deadline]), Plaintiff Savel also
had not propounded any interrogatories, requests for production of documents, or requests for
admission to MetroHealth under Federal Rules of Civil Procedure 33, 34, or 36. (See ECF #66,
p.2, PageID #4032 & ECF #71, p.3, PageID #4387). Instead, Plaintiff Savel sought to obtain
through deposition subpoenas duces tecum “All internal and external communications relevant to
the decisions made by MetroHealth related in any way to the COVID-19 and/or influenza vaccine
exemption requests, whether medical or religious, by any MetroHealth employee, student, or
contractor during the time period from March 1, 2020 to December 31, 2022,” from non-party
deponent Akram Boutros, M.D. (who was no longer employed by MetroHealth at the time),
served on August 23, 2024, and “[A]ll documents and communications, whether or not originally
in electronic or printed form, that refutes or supports in any way, or that pertains in any way to,
any statement or declaration made by Deponent in any Declaration entered into the record of this
case” (which effectively sought the same universe of documents), from non-party MetroHealth
Human Resources Project Specialist Amanda Calabrese, also served on August 23, 2024. (See
ECF #61 & ECF #63). Neither of these requests for what are clearly MetroHealth’s documents
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On June 26, 2024, Judge Gwin of this Court (see note 2, supra) issued the following order:
[T]he Court GRANTS Defendant MetroHealth’s motion to supplement instanter
its response to Plaintiff Crockett’s motion to dismiss and DENIES Plaintiff
Crockett’s motion to dismiss without prejudice.
Further, the Court ORDERS that Plaintiff Crockett must file a notice by July 2,
2024 that indicates whether she intends to have her claims dismissed with
prejudice, or whether she intends to proceed with the case, conditioned on her
compliance with remaining discovery requirements, The Court will enter a
separate order based on Plaintiff Crockett’s selection. Failure by Crockett to
timely file her notice in compliance with this order will result in the case being
dismissed with prejudice.
(ECF #44, Order, p.8, PageID #1158).
On July 2, 2024, Plaintiff Crockett responded that, “[s]he does not wish to continue in this
litigation at this time.” (ECF #45, Notice of Response to Order on Dismissal of Claims of Plaintiff
Danielle Crockett, p.3, PageID #1161). Accordingly, on July 9, 2024, Judge Gwin issued the
following order, “The Court has given Plaintiff Crockett the option to continue pursuing her
claims in this case, but she has declined[;] [s]o, the Court DISMISSES WITH PREJUDICE
Plaintiff Crockett from this matter.” (ECF #47, p.4, PageID #1183). Thus, as the case now comes
to this Court’s docket, only Plaintiff Savel’s claims remain.

would have allowed MetroHealth the 30-day response time prior to the end of the (even extended)
discovery period set forth in Federal Rule of Civil Procedure 34(b)(2) if such documents were
appropriately sought from MetroHealth. While no definitive ruling is made here on the now-moot
motions, the Court notes that, in order to be considered timely, discovery requests must be served
so as to allow the recipient the 30-day response time allowed under Rule 34 prior to the discovery
cut-off date. See, e.g., Enyart v. Karnes, No. 2:09-CV-687, 2010 U.S. Dist. LEXIS 120411, at *4
(S.D. Ohio Nov. 12, 2010) (“[D]iscovery propounded fewer than thirty days prior to the discovery
completion date is not timely”); Burton v. Mich. Dep’t of Corr., No. 20-CV-12501, 2023 U.S.
Dist. LEXIS 239151, at *2 (E.D. Mich. June 22, 2023) (“Since a party must respond or object to
discovery requests within 30 days of being served, ‘a party must serve his discovery requests at
least thirty days before the court-ordered discovery deadline to be timely and to necessitate a
response’’).
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At the same time that MetroHealth denied Plaintiff Savel’s request for a religious
exemption based on the fact that Savel’s position required direct patient contact and could not be
performed 100% remotely, on February 7, 2022, he was invited to explore job vacancies at
MetroHealth that could be performed fully remote. (ECF #55-12, Feb. 2, 2022 Vaccination
Exemption Request Response, PageID #3762) (“Meanwhile, during this 45-day period, you are
welcome to explore job vacancies at MetroHealth that are designated as fully remote. You may
visit metrohealth.org/careers to review the duties and qualifications of current vacancies. You
may email questions about certain vacancies for which you qualify to TalentAquisition.org. Please
note that, if interested, you should apply for fully remote positions for which you qualify as soon
as possible because the 45-day vaccine deadline will continue to apply.”). Initially, Plaintiff Savel
testified that he did not consult the website or send any e-mails to the e-mail address MetroHealth
identified as a means of exploring fully remote options, (see ECF #55-3, Deposition of Frank M.
Savel, March 29, 2024, pp. 126-127, 164, PageID #3717, #3721) (hereinafter “Savel Dep.”), but
he subsequently changed his testimony during the continuation of his deposition to say he “thought
he looked at the postings” the night of February 8, 2024, but acknowledged that he “didn’t look
that long” and did not consult anyone at MetroHealth about exploring remote options. (see ECF
#55-3, Savel Dep., July 24, 2024, pp. 224-225, PageID #3728-#3729).
As earlier noted, within a day of receiving the February 7, 2022 exemption decision,
Plaintiff Savel applied for and scheduled an interview for a position with University Hospitals.
(ECF #55-3, Savel Dep., pp. 111-113, 139, 217-218, PageID #3713, #3719, #3727); ECF #55-13,
Feb. 8, 2022 E-mail Accepting Invitation to Interview, PageID #3763). By February 16, 2022,
Plaintiff Savel was offered and accepted a comparable position at University Hospitals as a

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registered nurse in its Medical Intensive Care Unit, in effect, the same position he held at
MetroHealth. (ECF #55-3, Savel Dep., pp. 111-113, 217-220, PageID #3713, #3727; ECF #55-14,
Feb. 16, 2022 E-mail Offer and Acceptance, PageID #3764-#3765).
Upon accepting the position at University Hospitals, Plaintiff Savel informed his manager
at MetroHealth of his decision to leave for that position, but continued to work for MetroHealth
for two weeks longer, through March 4, 2022, then chose to take a few weeks off in unpaid time
before beginning his employment at University Hospitals on March 28, 2022. (ECF #55-3, Savel
Dep., pp. 106, 114-117, 219-220, PageID #3712, #3714, #3727). At the time Plaintiff Savel
accepted the position at University Hospitals, he knew that his counsel planned to seek injunctive
relief to prevent MetroHealth from taking any adverse action against employees whose religious
exemption requests were denied, including himself, which MetroHealth never did as it
subsequently allowed the exemptions that it had initially denied. (See ECF #55-3, Savel Dep., pp.
228-230, 259-261, PageID #3729-#3730, #3733-#3734).°
In connection with his decision to leave MetroHealth, Plaintiff Savel inquired about his
accrued but unused vacation and sick time. (ECF #55-3, Savel Dep., pp. 117-119, PageID #3714-
#3715). MetroHealth informed him that he would be paid out the accrued unused vacation time,
and that there were two options with regard to the sick time under MetroHealth policy: (1) the
sick time would be frozen and potentially available for use if he returned to a public employer in
In a ruling made during Plaintiff Savel’s deposition, the Court held that asking Savel about
the date he learned of his counsel’s decision to prepare and file a complaint for injunctive relief
did not implicate any attorney/client privilege issue, because Savel had waived any such privilege
by telling the information to the Ohio Civil Rights Commission, and that asking such question did
not require revealing any legal strategy between Savel and his counsel. (ECF #55-3, Savel Dep.,
pp. 259-260, PageID #3733).
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the future or (2) if he retired from the Ohio Public Employees Retirement System (“OPERS”) and
from MetroHealth, he would be eligible for one-half of the number of accrued unused sick hours.
(ECF #55-3, Savel Dep., pp. 123-124, PageID #3716). Plaintiff Savel elected not to freeze the
sick time, but instead made the decision to retire from OPERS at the age of 55 with a reduced
monthly benefit. (ECF #55-3, Savel Dep., pp. 124, 156, 163, PageID #3716, #3720, #3721).
Notably, he was eligible to withdraw his OPERS retirement application within 30 days of receipt
of the first monthly payment received, in effect, within 30 days of April 1, 2022, if he decided to
change his effective retirement date or to return to an OPERS covered employer to accrue
additional service credit and retire later. (ECF #55-3, Savel Dep., pp. 132, 166, PageID #3718,
#3722; ECF #55-15, March 10, 2022 OPERS Letter, PageID #3766).
Again, as earlier noted, on March 15, 2022, MetroHealth, in response to declining COVID-
19 positivity rates, the end of the winter season, and a number of recent forecast models,
announced to its employees that its COVID-19 vaccination policy could now reasonably
accommodate without undue hardship unvaccinated employees whose essential functions could
not be performed 100% remotely so long as such employees followed all other applicable COVID-
19 safety precautions. (ECF #55-8, March 15, 2022 COVID Medical and Non-Medical Exemption
Announcement, PageID #3742-#3743; ECF #12-2, Declaration of Amanda Calabrese, | 9, PageID
#302; ECF #22-1, Supplemental Declaration of Amanda Calabrese, §7, PageID #989; ECF #55-2,
Supplemental Declaration of Amanda Calabrese, §J 12-14, PageID #3697-#3699).
In mid-March 2022, Savel’s former MetroHealth co-workers threw him a retirement party,
at which time they informed him that MetroHealth was now going to allow exemption requests for
those whose requests were initially denied on grounds that their positions could not be performed

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100% remotely. (ECF #55-3, Savel Dep., pp. 127-130, PageID #3717-#3718). Despite learning of
MetroHealth’s decision to now grant the exemption requests prior to beginning employment at
University Hospitals and prior to the deadline to withdraw his OPERS retirement application,
Savel did not contact anyone at MetroHealth to inquire about returning to his position — even
though his manager had informed him that “she would be happy to see [him] back,” nor did he
ever seek to withdraw his OPERS retirement application. (ECF #55-3, Savel Dep., pp. 127-130,
132, 167-168, 233-234, PageID #3717-#3718, #3722, #3731; ECF #55-16, June 6, 2022 Savel E-
mail to Ohio Civil Rights Commission, PageID #3769).
These are the facts now before the Court on which to decide whether Plaintiff Savel has
established a prima facie “failure to accommodate” claim or a “disparate treatment” claim
sufficient to survive a motion for summary judgment. See Savel v. MetroHealth, 96 F.4th 932,
944 (6" Cir. 2024) (“Time — and, crucially, discovery — will tell whether Plaintiffs 1 and 2 satisfy
the prima facie case requirements.”).
The Court has reviewed the record before it, including the full briefing of the parties and
the affidavits, exhibits, and other evidence cited by both parties, and applying the appropriate
standards of review, finds that Defendant’s Motion for Summary Judgment (ECF #55) should be
GRANTED in its entirety.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the court is satisfied “that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c)). The burden of showing the absence of any such “genuine issue” rests with
the moving party:

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[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any,” which it believes demonstrates the absence
of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIv. P. 56(c)). A fact is
“material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires
consideration of the applicable evidentiary standards. The court will view the summary judgment
motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the non-
movant. The non-moving party may not simply rely on its pleadings, but must “produce evidence
that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t of Transp.,
53 F.3d 146, 149 (6" Cir. 1995). There is no genuine issue of material fact if the relevant evidence
in the record, taken as a whole, indicates that a reasonable fact-finder could not return a verdict for
the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If the defendant “successfully demonstrates, after a reasonable period of discovery, that
the plaintiff cannot produce sufficient evidence beyond the bare allegations of the complaint to
support an essential element of his or her case... ,” the court should grant summary judgment.
Combs v. Int’l Ins. Co., 354 F.3d 568, 576 (6" Cir. 2004).
LEGAL ANALYSIS
Plaintiff Frank Savel alleges that MetroHealth failed to accommodate his religious beliefs
and treated him differently because of his religious beliefs in violation of Title VII and Ohio

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Revised Code § 4112 by denying his request for a religious exemption to its COVID-19 vaccine
requirement (ECF #2, Complaint, J 497-506, PageID #71 [Count I, Title VI] & {J 541-553,
PageID #76-#77 [Count VI, OHIO REV. CODE § 4112]). The analysis applicable to Savel’s Ohio
law claim is the same as that applied by federal courts in Title VII cases. See Isensee v. Amplity,
Inc., No. 3:22-CV-370, 2024 U.S. Dist LEXIS 85982, at *8 (S.D. Ohio May 13, 2024) (Ohio
Supreme Court has held that federal case law interpreting Title VII is generally applicable to cases
involving alleged violations of Ohio Revised Code § 4112) (citing Ohio Civ. Rights Comm’n v.
David Richard Ingram, D.C., Inc., 69 Ohio St. 3d 89, 93, 630 N.E.2d 669, 672 (Ohio 1994), in
turn citing Plumbers & Steamfitters Joint Apprenticeship Comm’n v. Ohio Civ Rights Comm’n, 66
Ohio St. 2d 192, 196, 421 N.E.2d 128, 131 (Ohio 1981)).
Plaintiff’s Failure to Accommodate Claim
To state a prima facie claim of “failure to accommodate” a religious belief under Title VII
(and thus Ohio Revised Code § 4112, as well), a plaintiff must establish that: (1) he holds a
sincere religious belief that conflicted with an employment requirement; (2) he informed his
employer of the conflict; and (3) his employer discriminated against him because of his religious
beliefs by disciplining him or discharging him for failing to comply with the conflicting
employment requirement. See DeVore v. Univ. of Ky. Bd. of Trs., No. 23-5890, 2024 U.S. App.
LEXIS 25695, at *11 (6" Cir. Oct. 11, 2024); Reed v. Int’l Union, UAW, 569 F.3d 576, 580 (6"
Cir. 2009); Bolden v. Lowes Home Cirs., LLC, 783 F. App’x 589, 597 (6" Cir. 2019). For the
purposes of this Court’s analysis in ruling upon the motion for summary judgment, MetroHealth
has assumed in its motion that Savel can establish the first two elements of a failure to
accommodate claim, without waiving its right to later contest the first element in the event the

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Court did not grant the motion. (See ECF #55-1, Memorandum in Support of Defendant’s Motion
for Summary Judgment, pp. 8-9, n.10, PageID #3680-#3681). Thus, the Court turns to the third
element, that Savel was allegedly disciplined or discharged for failing to comply with
MetroHealth’s then-existing COVID-19 vaccination policy.
Plaintiff Savel’s failure to accommodate claim fails as a matter of law because there is no
evidence to support his claim that he was either disciplined or discharged — either actually or
constructively — because of his decision not to comply with MetroHealth’s COVID-19 vaccination
requirement. There are no facts at all identified to support a claim that Savel was disciplined for
not receiving a COVID-19 vaccination. There are also no facts at all presented to support that he
was actually discharged for not receiving the vaccination. The facts do show that Savel chose to
secure alternative employment, which he was able to do within approximately one-week’s time in
a position that was the same as the one he had at MetroHealth, and voluntarily resigned his
employment at MetroHealth, providing a two-week notice period, without having received any
discipline from MetroHealth or being actually discharged. (ECF #55-3, Savel Dep., pp. 106, 114-
117, 228-230, 259-261, PageID #3712, #3714, #3729-#3730). Resignations are generally
presumed to be voluntary, absent an indication that the resignation was the result of a
“constructive discharge.” Kirk v. Hockenberry, No. 1:14-CV-713, 2016 U.S. Dist. LEXIS 11392,
at *14 (S.D. Ohio Feb. 1, 2016) (citing Rhoads v. Bd. of Educ. of Mad River Local Sch. Dist., 103
F. App’x 888, 895 (6™ Cir. 2004)).
Thus, to survive a motion for summary judgment, Savel must present evidence to support a
prima facie case that his resignation was the result of constructive discharge. A constructive
discharge occurs when an employer deliberately makes an employee’s working conditions so

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intolerable that the employee is forced into an involuntary resignation. Laster v. City of
Kalamazoo, 746 F.3d 714, 727 (6" Cir. 2014). To do this, a plaintiff must show that: (1) the

employer deliberately created intolerable working conditions, as perceived by a reasonable person;
and (2) the employer did so with the intention of forcing the employee to quit. See Laster, 746 F.3d
at 728; Edwards v. City of Cincinnati, No. 1:22-CV-503, 2023 U.S. Dist. LEXIS 4748, at *10 (S.D.
Ohio Jan. 10, 2023), aff'd 2023 U.S. App LEXIS 22057 (6" Cir. Aug. 21, 2023); Goldmeier v.
Allstate Ins. Co., 337 F.3d 629, 635 (6" Cir. 2003). An employee’s subjective beliefs are not
sufficient to meet the burden of establishing a constructive discharge. Henry v. Abbott Labs., 651
F. App’s 494, 508 (6" Cir. 2016). The employee must prove objectively intolerable working
conditions and that the employer intended for him to quit. Fletcher v. U.S. Renal Care, 709 F.
App’x 347, 351 (6" Cir. 2017). Alternatively, a plaintiff must show that he resigned when it was
absolutely clear that termination was imminent. Laster, 746 F.3d at 727; Goldmeier, 337 F.3d at
636.
The evidence identified does not establish “intolerable working conditions,” as perceived by
a reasonable person, in any manner. While Savel initially contended that MetroHealth “rolled 24/7
video loops berating the unvaccinated,” (ECF #55-3, Savel Dep., pp. 227-228, PageID #3729; see
also ECF #55-16, June 6, 2022 Savel E-mail to Ohio Civil Rights Commission, PageID #3769), at
his deposition he immediately later admitted that the word “berating” “may have been overstating,”
and that the videos that played on various screens located throughout the hospital merely “promoted
the efficacy of their vaccine, and [addressed] questions that some people who are unvaccinated
might have, (ECF #55-3, Savel Dep., p. 228, PageID #3769). He also acknowledged that the video
loops did not “relate in any way or make any comments about religion” (ECF #55-3, Savel Dep., p.

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228, PageID #3769). The evidence also shows that Savel continued working at MetroHealth for
several weeks after securing comparable alternative employment with University Hospitals and
providing notice of his resignation (ECF #55-3, Savel Dep., pp. 106, 114-117, PageID #3712,
#3714). No reasonable fact-finder could come to the conclusion that these facts establish the
essential element of “intolerable working conditions.” See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). .
Nor does the evidence support a possible conclusion that MetroHealth deliberately created
intolerable working conditions with the intention of forcing Savel to quit his position, or that it was
absolutely clear that termination was imminent. In fact, the evidence produced shows the opposite.
It is undisputed that MetroHealth asked those employees whose non-medical/religious exemption
requests were initially denied — as well as those whose medical exemption requests were initially
denied — to get vaccinated for safety reasons, and further welcomed those employees to explore
positions at MetroHealth that could be performed fully remote, for which they would not need to be
vaccinated. (ECF #55-12, Feb. 2, 2022 Vaccination Exemption Request Response, PageID #3761-
#3762; ECF #55-2, Supplemental Declaration of Amanda Calabrese, J 5, 9 & 11, PageID #3696-
#3697). The fact that MetroHealth was offering these employees the option of pursuing fully
remote positions, where the safety need for vaccination was not a factor, contradicts a finding that
MetroHealth was either creating intolerable working conditions or that termination was
“imminent.”
Moreover, on February 8, 2002, just one day into the 45-day period to either get vaccinated
or to explore fully remote positions at MetroHealth — well before there would have been a conflict
between Savel’s asserted religious belief to not get vaccinated and MetroHealth’s COVID-19

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vaccine policy (in effect, those not vaccinated could continue working at MetroHealth awaiting a
possible change in the policy to perhaps allow additional exemptions, as numerous other employees
whose initial requests for medical or religious exemptions had been denied in fact did)° — Savel had
already begun the process of finding alternative work. (ECF #55-3, Savel Dep., pp. 111-113, 139,
217-218, Page ID #3713, #3719, #3727; ECF #55-13, Feb. 8, 2022 E-mail Accepting Invitation to
Interview, PagelD #3763). Just over one week later, the evidence shows that Savel had been hired
by University Hospitals to a position identical in essentially every aspect to the position he had at
MetroHealth. (ECF 55-14, Feb. 16, 2022 E-mail Offer and Acceptance, PageID #3764-#3765).
This presents a factual and legal circumstance almost identical to that addressed by the Sixth
Circuit in Goldmeier v. Allstate Ins. Co., 377 F.3d 629 (6" Cir. 2003), wherein the Sixth Circuit
held that plaintiffs, Sabbath-observant Orthodox Jews who asserted that their employer had
“intransigently refused” to adjust its weekend office hours policy to accommodate their Sabbath
obligations, could not establish a constructive discharge after they had obtained alternative
employment and had resigned fifty-three days before the first actual conflict between their religious
and employment requirements would have occurred (potential discipline or discharge for failing to
comply with weekend office hours policy prior to a specified date). As the Sixth Circuit panel
noted in Goldmeier, distinguishing the case before it from an earlier case where the plaintiff had
resigned just one day before the actual conflict was to occur:
In fact, the evidence produced shows that of the 297 employees whose non-medical
religious exemption requests were initially denied, only eleven (including Savel and the earlier-
mentioned Danielle Crockett) resigned between February 7 and March 15, 2022 (the date
MetroHealth announced to its employees the changes to its COVID-19 vaccination exemption
policy) claiming that their resignations were vaccine-related; and of these eleven, only two of them
(Savel and Crockett) filed charges of discrimination. (ECF #55-2, Supplemental Declaration of
Amanda Calabrese, { 15, PageID #3699).
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Allstate intransigently refused to adjust the new office hours to be more congenial
to the Goldmeiers. This intransigence, if it had not been tempered, as in fact it
was [similar to this case, the policy at issue was amended after the Goldmeiers
resigned in a manner which would have eliminated any conflict between the
policy and the Goldmeiers’ religious concerns], could potentially have led to an
actual discharge at some point in the future. The Goldmeiers cite Cooper [v. Oak
Rubber Co., 15 F.3d 1375 (6" Cir. 1994)] for the proposition that the mere
prospect of discipline at some future point in time is sufficient to create a hostile
work environment. However, Cooper resigned the day before her Sabbath
absence would, cumulatively with the discipline for her earlier Sabbath absences,
inevitably have led to her suspension under the employer’s announced rule.
Cooper, 15 F.3d at 1378, 1379 n.1. Thus, the threat of discharge had an
immediacy which contrasts sharply with the circumstances of the Goldmeiers who
continued to work for Allstate until both of them had found new employment and
then resigned fifty-three days before there would have been the first actual conflict
between their religious and employment requirements. Even in combination, all
circumstances of employment cited by the Goldmeiers are legally insufficient to
create an intolerably hostile work environment.
377 F.3d at 636 (inserts supplied).’ The court further noted, in granting summary judgment to
Allstate, that the subsequent change in application of the policy made available to the Goldmeiers
shortly after their resignations, which would have alleviated any conflict, negated a finding that
Allstate had deliberately created intolerable working conditions with the intention of forcing the
Goldmeiers to quit. Jd. Accordingly, the Sixth Circuit held that there was no genuine material
issue of fact arising over the issue of whether the Goldmeiers were constructively discharged. Id.
In a short concurring opinion appended to the Sixth Circuit’s decision in Savel v.
MetroHealth, 96 F.4th 932 (6" Cir. 2024), one of the judges on the panel posited the following
question, “What if Plaintiffs 1 and 2, after seeing the writing on the wall, got jobs elsewhere?
What if those jobs required them to start a few weeks before March 24? And what if they left
MetroHealth voluntarily before March 24? Would that end the lawsuit? Doubtful.” Savel, 96
F.4th at 945 (Sutton, C.J., concurring). Given the holding of the earlier Sixth Circuit panel
decision in Goldmeier, a published opinion found at 377 F.3d 629, the answer appears instead to
be clearly “yes.” See SIXTH Cir. R. 32.1(b) (“Published panel opinions are binding on later
panels. A published opinion is overruled only by the court en banc.”).
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Nor does a genuine material issue of fact on “constructive discharge” arise here.®
Adding to the grounds necessitating a grant of summary judgment in this case is the fact
that even if the facts did support a possibility that a fact-finder might come to the conclusion that
Savel was disciplined, discharged, or constructively discharged, the undisputed evidence shows
that the actions taken by MetroHealth in connection with its COVID-19 policy as it related to
patient-facing or public-facing employees were based on safety concerns and vaccination status,
and not on religion. In fact, Savel acknowledges that the employees whose exemptions were
denied were informed that “We have been told that we are a threat to the health not just to
ourselves but our coworkers and the population at large due to our unvaccinated status.” (ECF
#55-3, Savel Dep., p. 226, PageID #3729). “Vaccination status is not a class to which Title VI
protections apply.” See Robertson v. McKesson Corp., No. 2:23-CV-2334, 2023 U.S. Dist.
LEXIS 141159, at *18 (S.D. Ohio Aug. 11, 2023) (citing the earlier decision in this case, Savel v.
MetroHealth, 2023 U.S. Dist. LEXIS 120089, at *21), adopted and affirmed 2023 U.S. Dist.
LEXIS 188996 (S.D. Ohio Oct. 20, 2023).
Accordingly, Plaintiff Savel’s failure to accommodate claim fails as a matter of law under
both Title VII and Ohio Revised Code § 4112 based on a failure to state a prima facie case.
Undue Hardship Defense in Failure to Accommodate Analysis
Nor does Plaintiff Savel establish a viable claim of “failure to accommodate” sufficient to
survive a motion for summary judgment, as his claim still fails as a matter of law in that granting
Adding to this is the fact that, as of February 16, 2022, when Savel accepted the position at
University Hospitals, he already knew that his counsel planned to seek injunctive relief to prevent
MetroHealth from discharging or taking any other adverse action against those employees whose
religious exemptions had been denied, making the actual possibility of discharge at the end of the
45-day period even less of an inevitable outcome.
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his request for an exemption from COVID-19 vaccination during the relevant time period would
have caused MetroHealth and its patient population an undue hardship.
A court is permitted assess an employer’s defense of undue hardship as a matter of law
where the proposed accommodation would either cause or increase safety risks or the risk of
legal liability. See Villareal v. Rocky Knoll Health Care Ctr., No. 21-CV-729, 2022 U.S. Dist.
LEXIS 210267, at *18 (E.D. Wis. Nov. 21, 2022) (“Although undue hardship is usually treated
as an issue of fact, where an employer can demonstrate that ‘the proposed accommodation would
either cause or increase safety risks or the risks of legal liability’ the issue can be resolved as a
matter of law.”) (quoting EEOC v. Oak-Rite Mfg. Corp., No. IP 99-1962-C H/G, 2001 U.S. Dist.
LEXIS 15621, at *31 (S.D. Ind. Aug. 27, 2001) (citing numerous cases, including Draper v. U.S.
Pipe & Foundry Co., 527 F.2d 515, 521 (6" Cir. 1976) (“[S]afety considerations are highly
relevant in determining whether a proposed accommodation would produce an undue hardship
on an employer’s business.”) and Mohamed-Sheik v. Golden Foods/Golden Brands LLC, No.
303-CV-737H, 2006 U.S. Dist. LEXIS 11248, at *11 (“Cases within the Sixth Circuit and other
jurisdictions establish that an employer is not required to accommodate a religious concern when
doing so would potentially create a safety risk to its employees or a legal risk for the
employer.”)).
Courts have consistently held that employers have a strong interest in preventing the
spread of communicable diseases, including COVID-19, particularly in the health care context.
See Villareal v. Rocky Knoll Health Ctr., No. 21-CV-729, 2022 U.S. Dist. LEXIS 97364, at *10-
*11 (E.D. Wis. June 1, 2022). “Title VII does not require that safety be subordinated to the
religious beliefs of employees.” Draper, 527 F.2d at 521; see also Speer v. Ucor LLC, No. 3:22-

-22-

CV-426, 2023 U.S. Dist. LEXIS 198889, at *20 (E.D. Tenn. Nov. 6, 2023) (citing EEOC v. GEO
Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2012) (“A religious accommodation that creates a genuine
safety or security risk can undoubtedly constitute an undue hardship.”).
While the pertinent standard for determining “undue hardship” has recently been
modified from that applied in earlier decisions, MetroHealth still meets the standard to be
entitled to summary judgment. At the time MetroHealth made its initial determinations as to
non-medical/religious exemption requests the undue hardship defense to providing a religious
accommodation under Title VII was defined by the Supreme Court as requiring a showing that
the proposed accommodation in a particular case posed “more than a de minimis” cost or burden.
See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977). Although this standard has
since been modified by the Supreme Court in Groff v. DeJoy, 600 U.S. 447 (2023) (relating to a
postal worker’s Sunday Sabbath obligations being in conflict with the U.S. Post Office’s contract
with retailer Amazon to make Sunday deliveries), the Title VII undue burden standard remains
lower than the undue hardship standard applied in Americans With Disability Act (“ADA”)
cases, and the Supreme Court specifically declined to incorporate ADA case law and its higher
“undue burden” standard into the Title VII context. Groff, 600 U.S. at 471. In Groff, the
Supreme Court held that when examining undue hardship, a court must take “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.’” Jd. at 470-71.
These costs need not be economic. Hall v. Shepard Pratt Health Sys., No. 22-CV-3261, 2024
U.S. Dist. LEXIS 170870, at *23-*24 (D. Md. Sept. 20, 2024) (“Both pre- and post-Groff, courts
can and must consider not just financial factors as part of the undue hardship analysis, but rather

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a holistic ‘assessment of a possible accommodation’s effect on the conduct of the employer’s
business, not the bottom line alone.’”).
Courts across the country, both pre- and post Groff, have held that allowing unvaccinated
employees to continue work in a healthcare setting with vulnerable patients constitutes an undue
hardship. See, e.g., Wise v. Children’s Hosp. Med. Ctr. of Akron, No. 5:22-CV-02092, 2024 U.S.
Dist. LEXIS 119686, at *6 (N.D. Ohio July 9, 2024) (granting summary judgment to the
defendant hospital because allowing plaintiff to come to work “while remaining unvaccinated
and untested creates a heightened health risk that constitutes an undue hardship.”); Bushra v.
Main Line Health, Inc., No. 23-1090, 2023 U.S. Dist. LEXIS 229965, at *20 (E.D. Pa. Dec. 28,
2023) (granting summary judgment because allowing a physician to continue working in the
emergency room would constitute an undue hardship under Groffas he had “frequent and direct
contact with patients and staff’); Devore v. Univ. of Ky. Bd. of Trs., No. 5:22-CV-00186, 2023
U.S. Dist. LEXIS 167239 (E.D. Ky. Sept. 18, 2023) (granting summary judgment to university
because it would face undue hardship under Groff where an administrator, whose position
required her to work on-site, sought to be exempted from COVID-19 vaccination and testing due
to religious beliefs), affirmed No. 23-5890, 2024 U.S. App. LEXIS 25695 (6" Cir. Oct. 11,
2024); Beuca v. Wash. State Univ., No. 2:23-CV-0069, 2023 U.S. Dist. LEXIS 88221, at *7-*8
(E.D. Wash. May 19, 2023) (dismissing plaintiff's claims and agreeing that “having unvaccinated
internal medicine physicians would have imposed an undue hardship because it would have
increased the risk of exposure to COVID-19 to patients and other healthcare workers”); Dennison
v. Bon Secours Charity Health Sys. Med. Grp., P.C., No. 22-CV-2929, 2023 U.S. Dist. LEXIS
84888, at *15 n.7 (S.D.N.Y. May 15, 2023) (dismissing plaintiff's claims, in part, due to the

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“obvious hardship associated with the increased health and safety risk posed to other employees
and patients by allowing Plaintiffs to remain unvaccinated” against COVID-19 while working);
Does v. Hochyl, 632 F. Supp. 3d 120, 145 (E.D.N.Y. 2022) (dismissing plaintiff's claims, in part,
because “exempting the plaintiffs from the vaccine requirement would expose vulnerable
patients . . . as well as other healthcare workers to the COVID-19 virus, which is obviously a
significant hardship.”).
The facts established in this case show that in January and February 2022, when
MetroHealth was evaluating the numerous requests for vaccine exemption, the number of
positive COVID-19 cases, while declining in Cuyahoga County, remained high, and positivity
rates at MetroHealth remained high as well. (ECF #22-1, Supplemental Declaration of Amanda
Calabrese, { 4; ECF #55-2, Supplemental Declaration of Amanda Calabrese, { 8). Because of
this, MetroHealth concluded that allowing unvaccinated employees who either provided direct
patient care, were in other direct in-person patient-facing roles, or whose job responsibilities
required them to work on-site, posed serious and unnecessary safety risks to co-workers, patients,
and others at MetroHealth’s hospitals and healthcare facilities. (ECF #22-1, Supplemental
Declaration of Amanda Calabrese, § 5; ECF #55-2, Supplemental Declaration of Amanda
Calabrese, (9). The facts also show that, by mid-March, after Savel had resigned, MetroHealth
concluded that there was a sufficient decline in positive cases of COVID-19 in Cuyahoga County
such that it could amend its vaccination policy to reasonably accommodate unvaccinated
employees whose essential functions could not be performed 100% remotely without creating an
undue hardship, so long as those unvaccinated employees followed all other applicable COVID-
19 safety precautions. (ECF #22-1, Supplemental Declaration of Amanda Calabrese, □ □□ ECF

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#55-2, Supplemental Declaration of Amanda Calabrese, § 12). MetroHealth’s decision to amend
its policy based on the data it was receiving on the ever-changing COVID-19 landscape was
within its discretion and does not amount to evidence of an intent to discriminate based on
religion. See Together Emples. v. Mass Gen. Brigham Inc., 573 F. Supp. 3d 412, 433 (D. Mass.
2021) (“[T]his Court should not second-guess the hospital’s judgment in matters of patient
safety”), aff'd 32 F.4th 82 (1* Cir. 2022).
To the extent Plaintiff Savel may disagree with MetroHealth’s assessment of the COVID-
19 data, or the timing of the amendment of the vaccine policy, (see ECF #60, Plaintiffs
Opposition to Defendant’s Motion for Summary Judgment, pp. 6-8, PageID #3845-#3847), his
subjective belief that the data existing in January and February 2022 did not support
MetroHealth’s decision to deny his, and others’, COVID-19 vaccination exemption request does
not establish discriminatory animus and is insufficient to defeat summary judgment. See Tibbs v.
Calvary United Methodist Church, 505 F. App’x 508, 514 (6" Cir. 2012) (noting that “arguing
about the accuracy of the employer’s assessment is a distraction because the question is not
whether the employer’s reasons for a decision are right but whether the employer’s description of
its reasons is honest’’) (emphasis in original); Carson v. Ford Motor Co., 413 F. App’x 820, 824
(6" Cir. 2011) (“The plaintiff's] subjective belief that [his employer’s] proffered reason is false

... 1s not sufficient to withstand summary judgment”).
MetroHealth has established as a matter of law that granting Savel’s vaccination
exemption request at the time he requested it would have represented an undue hardship beyond
the scope of reasonable accommodation. Summary judgment is appropriate on his “failure to
accommodate” claim.

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Plaintiff's Disparate Treatment Claim
Nor does the evidence presented establish that MetroHealth treated Savel differently
based on religion by “issu[ing] a blanket denial of all religious exemption requests” while
granting medical exemption requests. (ECF #2, Complaint, Jf 33 & 38, PageID #13).
To establish a prima facie case of disparate treatment, a plaintiff must establish: (1) his
membership in a protected class; (2) that he suffered an adverse employment action; (3) that he
was qualified for his position; and (4) that a person who was outside the protected class and
similarly situated to him in all relevant respects was treated better than he was. Makar v.
Cleveland Clinic Found., No. 1:19-CV-1185, 2021 U.S. Dist. LEXIS 45784, at *9-*10 (N.D.
Ohio Mar. 11, 2021).
As already noted, Savel has not established that he suffered an adverse employment
action or was constructively discharged. (See supra, pp. 15-21). Nor has he come forward with
evidence to establish that others outside his protected class and similarly situated to him in all
relevant respects were treated better then he was.
A disparate treatment claim is not supportable by comparing individuals in one protected
class with those in a different protected class, measured under a separate statute with different
standards, as Savel attempts to do by alleging a contrast between the handling of medical
exemption requests (likely requiring ADA analysis) versus non-medical/religious exemption
requests. (See ECF #2, Complaint, { 38, PageID #13) (“MetroHealth offered no explanation as
to why some employees who requested a medical exemption to the vaccination requirements
were able to be accommodated, but no employee who submitted a religious exemption request
could be accommodated”). To satisfy the “similarly situated” requirement, Savel and those he

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wishes to compare “must have dealt with the same supervisor, have been subject to the same
standards[,] and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them.” See
Goldblum y. University of Cincinnati, 62. F.4th 244, 255 (6" Cir. 2023). Moreover, to establish a
disparate treatment claim, “the employees to whom the plaintiff seeks to compare himself must
‘have engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer’s treatment of them for it.’”” Clayton v. Meijer,
Inc., 281 F.3d 605, 611 (6" Cir. 2002) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6™
Cir. 1992)).
Here, Savel is not “similarly situated” to the individuals who submitted medical
exemption requests, as is alleged in the Complaint. (See ECF #2, Complaint, | 38, PageID #13).
Medical exemption requests and religious exemption requests are on their face fundamentally
different. Medical exemption requests generally relate to situations where the vaccine itself
would cause the requester to experience adverse health consequences or physical harm (which, in
itself, would seem to negate the reason for the vaccine in the first place, to promote personal and
public health), whereas religious exemption requests typically do not present a situation where
the requestor’s physical health would be harmed or compromised, nor does such a request further
the promotion of personal or public health. See, e.g, Thompson v. Asante Health Sys., No. 1:23-
CV-00486, 2023 U.S. Dist. LEXIS 200693 (D. Or. Sept. 21, 2023) (“Here, for the fourth
element, Plaintiffs allege that employees seeking medical exceptions to the vaccine mandate
were “similarly situated” to Plaintiffs, who sought religious exceptions to the vaccine mandate.
This allegation fails to meet even the minimal requirements of the prima facie case because

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nothing indicates that seeking a medical exception is “similar conduct” to seeking a religious
exception.”) (dismissing disparate treatment claims, and citing Groff v. DeJoy for the proposition
that “[t]he standards by which employers are required to accommodate religious requests and
medical requests for exceptions to workplace requirements are not the same, . . . and conflating
this standard with the medical standard and ADA case law would go too far.’”), adopted and
affirmed 2023 U.S. Dist. LEXIS 199640 (D. Or. Nov. 7, 2023).
Additionally, there has not been any evidence produced by Savel that those who
submitted medical exemption requests were treated more favorably than Savel (or any of the
others who sought non-medical/religious exemptions). The evidence produced shows that
MetroHealth received 316 non-medical/religious exemption requests, 19 of which it initially
approved, and 99 medical exemption requests, 12 of which it initially approved. (ECF #55-2,
Supplemental Declaration of Amanda Calabrese, § 10, PageID #3697). MetroHealth informed
the employees whose exemption requests were denied, in connection with both medical
exemption requests and non-medical religious exemption requests, that they had to get fully
vaccinated and submit proof of vaccination within 45 days; MetroHealth also invited both sets of
employees to explore job vacancies at MetroHealth that were fully remote. (ECF #55-2,
Supplemental Declaration of Amanda Calabrese, { 11, PageID #3697). All the evidence points
to MetroHealth’s decision to require vaccination for those employees who could not perform
their roles 100% remotely as being solely to protect patients and fellow employees from
infection, and not based on religion.
Finally, to the extent that Savel contends he was treated differently from his co-workers
insofar as other COVID-19 safety protocols were relaxed for the employees who were

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vaccinated, (see ECF #2, Complaint, J 11-14, PageID #7-#8), any such differential treatment
was based on vaccination status, and not religion, such that the “differential treatment” was not
related to one’s “protected class.” See Robertson, 2023 U.S. Dist. LEXIS 141159, at *18 (S.D.
Ohio Aug. 11, 2023) (“Vaccination status is not a class to which Title VII protections apply.”).
CONCLUSION
Accordingly, for each of these reasons — a failure to identify evidence of either a “failure
to accommodate” Savel’s request for a religious exemption from MetroHealth’s COVID-19
vaccination policy or “disparate treatment” based on his protected class — the Court GRANTS
Defendant MetroHealth System’s Motion for Summary Judgment (ECF #55) on Plaintiff Frank
Savel’s claims of religious discrimination, as pled in Counts I (alleging violation of Title VII, 42
U.S.C, § 2000e, et seg.) and Count VI (alleging a violation of Ohio’s anti-discrimination statute,
Ohio Rev. Code § 4112) of the Class Action Complaint for Injunctive Relief and Damages (ECF
#2).
Given this Court’s ruling granting the Motion for Summary Judgment, resulting in a final
dismissal of the case in its entirety, the following motions: (1) Defendant’s Motion to Exclude
Dr. Stan v. Smith’s Expert Reports and to Preclude Dr. Smith from Providing Expert Testimony
(ECF #64); (2) Defendant’s and Non-Party Dr. Boutros’ Motion to Quash Plaintiff's Subpoena
Duces Tecum to Akram Boutros, M.D. (ECF #66); and (3) Plaintiff's Motion to Compel and
//

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//
Objection to the Supplemental Declaration of Amanda Calabrese (ECF #68), are each DENIED
as moot.

IT IS SO ORDERED.

ONALD C/ NUGEN
United States District Judge

paren) Chobe 26,2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664801. Public record. Not legal advice.