Becker v. Hood River County School District

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SALLY BECKER, ELAINE WALKER, and Case No.: 3:23-cv-01674-AN

KRISTIN MARBLE,

Plaintiffs,

v. OPINION AND ORDER

HOOD RIVER COUNTY SCHOOL DISTRICT,

Defendant.

Plaintiffs Sally Becker ("Becker"), Elaine Walker, and Kristin Marble (collectively,

"plaintiffs") bring this action against defendant Hood River County School District, alleging religious

discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and Oregon Revised Statute ("ORS")

§ 659A.030. Becker, individually, alleges disability discrimination in violation of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and ORS § 659A.112. Defendant moves to dismiss

plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). After reviewing the parties'

pleadings, the Court finds that oral argument will not help resolve this matter. Local R. 7-1(d). For the

reasons stated herein, defendant's motion is GRANTED.

LEGAL STANDARD

A motion to dismiss for failure to state a claim should be granted when the allegations do

not "state a claim to relief that is plausible on its face." Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). "The plausibility standard . . . asks

for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epsten Grinnell &

Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted).

When evaluating the sufficiency of a complaint's factual allegations, the court must accept

as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable

to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); see Daniels-

Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). Allegations in a complaint "may not simply

recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give

fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202,

1216 (9th Cir. 2011). While the court must draw all reasonable inferences from the factual allegations in

favor of the plaintiff, Newcal Indus. v. Ikon Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008), the court

need not credit legal conclusions that are couched as factual allegations, Iqbal, 556 U.S. at 678-79.

BACKGROUND

Plaintiffs are former employees of defendant who all worked at one of defendant's schools

during the COVID-19 pandemic. Compl., ECF [1], ¶ 3. In summer of 2021, defendant, required all

employees to be vaccinated against COVID-19, unless, in accordance with Oregon law, the employee had

a sincerely held religious belief or medical circumstance that prevented the employee from receiving the

vaccine. Id. ¶ 6. Plaintiffs applied for and received religious exceptions from the vaccine mandate. Id. ¶¶

9, 11, 18, 21. Becker, in addition, applied for a medical exception.1 Id. ¶ 10. To continue working

unvaccinated, plaintiffs were required to wear a face shield and KN95 mask, district approved goggles,

isolate to eat and drink, and maintain a six feet distance from others. Id. ¶¶ 11, 18, 22. Plaintiffs allege that

these accommodations were unreasonable. Id. ¶¶ 31, 37, 42, 47

On November 13, 2023, plaintiffs filed the present lawsuit, alleging that defendant failed

to make a good faith effort to accommodate plaintiffs' religious beliefs or Becker's medical condition. Id.

¶¶ 30, 36, 41.

DISCUSSION

A. Religious Discrimination Claims

1 It is unclear from the complaint whether Becker's medical exception was granted.

Plaintiffs' religious discrimination claims for relief under Title VII and ORS § 659A.030

rely on the same factual allegations and are analyzed together. Lindsey v. Clatskanie People's Utility Dist.,

140 F. Supp. 3d 1077, 1086 (D. Or. 2015) (considering Title VII and ORS § 659A.030 retaliation claims

together because "[t]he substantive analysis . . . is substantially similar").

Title VII failure-to-accommodate claims are analyzed under a two-part, burden shifting

framework. Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). First, a plaintiff must

plead a prima facie case of religious discrimination.2 Id. If an employee articulates a prima facie case, then

the burden shifts to the employer to show that it made good-faith efforts to reasonably accommodate the

religious practice, or that it could not accommodate the practice without undue hardship. Id.

Defendant argues that plaintiffs cannot state a claim for unlawful religious discrimination

because the accommodations offered by defendants are (1) explicitly mandated by Oregon Administrative

Rule ("OAR") 333-019-1030 in effect at the time; and (2) reasonable as a matter of law. Def.'s Mot. to

Dismiss ("Def.'s Mot."), ECF [6], at 4.

1. OAR 333-019-1030

Although no longer in effect, the Oregon Health Authority ("OHA") implemented a

vaccine mandate, OAR 333-019-1030, requiring all K-12 school employees to provide either proof of

vaccination against COVID-19 or a request for medical or religious exception. Schools that granted

medical or religious exceptions were required to "take reasonable steps to ensure that unvaccinated teachers,

school staff and volunteers, and school-based program staff and volunteers are protected from contracting

and spreading COVID-19." OAR 333-019-1030(5).

2 Defendant does not contest the sufficiency of the prima facie case of religious discrimination pled by plaintiffs.

While defendant is correct that plaintiffs cannot base their Title VII claim on the

constitutionality3 of OHA's vaccine rule,4 a Title VII claim can be based on unreasonable accommodations

that failed to eliminate the conflict between the vaccine requirement and plaintiffs' religious beliefs and

failed to reasonably preserve their employment status. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60,

70 (1986).

2. Reasonable Accommodations

Title VII "requires an employer to accommodate the religious beliefs of an employee in a

manner which will reasonably preserve that employee's employment status, i.e., compensation, terms,

conditions, or privileges of employment." Am. Postal Workers Union, S.F. Loc. v. Postmaster Gen., 781

F.2d 772, 776 (9th Cir. 1986). "[W]here a certain aspect of an employment situation creates a religious

conflict for a particular employee, the employer must take some initial step to reasonably accommodate the

religious belief of that employee." Id. (citing Burns v. S. Pac. Transp. Co., 589 F.2d 403, 405 (9th Cir.

1978)). "If the accommodation proposed by the employer fails to eliminate the employee's religious

conflict, the employer must implement an alternative accommodation proposed by the employee, unless

implementation of that accommodation would cause 'undue hardship' to the employer." Id. (citing Burns,

589 F.2d at 405).

"Where an employer proposes an accommodation which effectively eliminates the

religious conflict faced by a particular employee, however, the inquiry under Title VII reduces to whether

the accommodation reasonably preserves the affected employee's employment status." Id. at 776-77. "If a

proposed accommodation eliminates the employee's religious conflict and the employee rejects the

3 A policy that is constitutional cannot be the basis for a Title VII claim. See Ass'n of Mexican-Am. Educators v. State

of California, 231 F.3d 572, 579 (9th Cir. 2000) ("As a threshold matter, we note that, because we ultimately hold that

the CBEST was validated properly[,] , , , we could decline to decide whether Titles VI and VII apply.").

4 The OHA vaccine rule has been found constitutional by other courts in this district. See Penna v. N. Clackamas Sch.

Dist., No. 3:22-cv-01417-YY, 2023 WL 6003834, at *2 (Aug. 11, 2023) (finding that "the vaccination requirement

imposed by former O.A.R. 333-019-1030 does not violate the Constitution"), findings and recommendation adopted

as modified, 2023 WL 6850268 (D. Or. Oct. 17, 2023); Johnson v. Brown, 614 F. Supp. 3d 776, 782 (D. Or. 2022)

(finding that former O.A.R. 333-019-1030 satisfied the rational basis test); Williams v. Brown, 567 F. Supp. 3d 1213,

1227 (D. Or. 2021) (same).

accommodation 'solely on secular grounds,' Title VII does not require the employer to accept an alternative

proposed accommodation." Mathisen v. Or. Health & Sci. Univ., No. 3:22-cv-1250-SI, 2023 WL 6147099,

at *5 (D. Or. Sept. 20, 2023) (citing Am. Postal Workers Union, 781 F.2d at 776); see Ansonia Bd. of Educ.,

479 U.S. at 68 ("We find no basis in either the [Title VII] statute or its legislative history for requiring an

employer to choose any particular reasonable accommodation. By its very terms the statute directs that any

reasonable accommodation by the employer is sufficient to meet its accommodation obligation. . . . Thus,

where the employer has already reasonably accommodated the employee's religious needs, the statutory

inquiry is at an end.").

Plaintiffs allege that defendant failed to reasonably accommodate their sincerely held

religious beliefs. Compl. ¶¶ 30, 36. In specific, plaintiffs allege that they were "singled out, isolated, and

made to wear additional personal protective equipment."5 Compl. ¶ 37. Plaintiffs, however, have not

"plausibly alleged that the offered accommodation[s] [were] discriminatory (e.g., that masking was offered

as an accommodation to employees who objected to receiving a vaccination on religious grounds but was

not offered to those who objected on other grounds)." Mathisen, 2023 WL 6147099, at *5 (citing Ansonia

Bd. of Educ., 479 U.S. at 70-71); see Penna, 2023 WL 6003834, at *2 ("[T]o the extent plaintiff argues that

he was subject to discriminatory treatment because he was required to wear a mask, distance himself from

others during lunchtime, and test for COVID-19, these polices do not support a Title VII violation."

(Citations omitted.)). Because the accommodations offered by defendant allowed plaintiffs to refuse the

COVID-19 vaccine, it "effectively eliminated the religious conflict." Am. Postal Workers Union, 781 F.2d

at 776. Plaintiffs have failed to allege a religious objection to defendant's accommodations, and instead,

plaintiffs appear to allege differential treatment due to their unvaccinated status. That, however, is not

sufficient to support a religious discrimination claim, or an argument that defendant's accommodations

failed to eliminate plaintiffs' religious conflict. See Mathisen, 2023 WL 6147099, at *5 ("Plaintiff's

5 Plaintiffs allege that defendant required them to wear a face shield and KN95 mask, isolate to eat and drink, and

maintain a six feet distance from others. Walker alleges that she was required to wear district approved goggles in

addition to the KN95 mask and face shield. Compl. ¶¶ 11, 18, 22.

assertion that masking would not promote safety is a secular objection, not a religious one. That objection,

therefore, does not establish that the offered accommodation to her religious objection was not reasonable

for purposes of her claim of religious discrimination."). Accordingly, plaintiffs' religious discrimination

claims under Title VII and ORS § 659A.030 are dismissed.6

B. Becker's Disability Discrimination Claims

Becker advances a disability discrimination claim under the ADA and ORS § 659A.112.

The standard for establishing a prima facie case of disability discrimination is identical under Oregon law

and federal law, thus these claims are considered together. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d

1080, 1087 (9th Cir. 2001); see Or. Rev. Stat. § 659A.139 (providing that state disability discrimination

statute should be construed "to the extent possible in a manner that is consistent with any similar provisions

of the [ADA]").

To state a claim for disability discrimination, a plaintiff must show that: (1) they are a

qualified individual with a disability; (2) they suffered an adverse employment action; and (3) there is a

causal connection between the adverse employment action and the disability. Huitt v. Optum Health Servs.,

216 F. Supp. 3d 1179 (D. Or. 2016). To establish a claim for disability discrimination due to a failure to

make reasonable accommodations, the employee must show that: "(1) she is a person with a disability; (2)

her employer was on notice of her disability; (3) she could perform the essential functions of her job either

with or without reasonable accommodations; and (4) the employer refused to provide reasonable

accommodations." Mathisen, 2023 WL 6147099, at *6 (citing Noll v. IBM, 787 F.3d 89, 94 (2d Cir. 2015)).

6 Instead of addressing any of defendant's arguments, plaintiffs argue that "any claim of undue hardship by the

Defendant at this stage in the proceedings" is forestalled by Groff v. DeJoy, 600 U.S. 447 (2023). Pls.' Resp. to Def.'s

Mot. to Dismiss (Pls.' Resp."), ECF [9], at 5. In Groff, the Supreme Court clarified Title VII's standards for "undue

hardship." The "undue hardship" standard, however, applies only if the employer's proposed accommodation fails to

eliminate the employee's religious conflict. Waggoner v. Am. Med. Resp. Nw., Inc., No. 3:23-cv-01518-SB, 2024 WL

1200183, at *2 n. 2 (D. Or. Mar. 5, 2024). Because plaintiffs have failed to adequately, or plausibly, allege that

defendant's accommodations failed to eliminate their religious conflict with the vaccine, Groff does not apply.

Defendant argues that Becker's disability claims fail because (1) she has not alleged a

qualifying disability; (2) she has not alleged an adverse employment action; and (3) she has not alleged that

she put defendant on notice of a disability. Def.'s Mot. 6-7. The Court addresses each argument in turn.

1. Existence of a Disability

Under the ADA, a person with a disability includes "an individual who is 'regarded as

having' an impairment." Equal Emp. Opportunity Comm'n v. BNSF Railway Co., 902 F.3d 916, 922 (9th

Cir. 2018) (quoting 42 U.S.C. § 12102(1)(C)). An individual is "'regarded as having such an impairment'

if the individual establishes that he or she has been subjected to an action prohibited under [the ADA]

because of an actual or perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity." Id. (quoting 42 U.S.C. § 12102(3)(A)).

Defendant argues that Becker has not, and cannot, allege a disability based on COVID-19

vaccination status. See, e.g., Kerkering v. Nike, Inc., No. 3:22-cv-01790-YY, 2023 WL 5018003, at *2 (D.

Or. May 30, 2023) ("Courts have invariably rejected the theory that an individual's decision to forgo a

vaccination constitutes a disability under the ADA."), report and recommendation adopted, 2023 WL

4864423 (D. Or. July 31, 2023); Johnson v. Mount Sinai Hosp. Grp., Inc., No. 22-CV-2936 (AMD) (JRC),

2023 WL 2163774, at *6 (E.D.N.Y. Feb. 22, 2023) ("Nor is the plaintiff's vaccination status a

disability. . . . The decision to vaccinate or not to vaccinate is a personal choice, while a disability under

the ADA is not something a person chooses.")

Becker alleges that she "applied for a medical exception on September 8, 2021 from the

COVID-19 vaccine and other mandated vaccines. Plaintiff was given a vaccine mistakenly in the past and

developed a severe spinal condition. She believes the vaccine was responsible." Compl. ¶ 10. Becker

argues that this is sufficient to establish that she has "a life-threatening condition." Pls.' Resp. 9. Construing

this allegation in the complaint most favorable to Becker, it appears that Becker is basing her disability

claims not on her vaccination status, but on her spinal condition. While a spinal condition likely qualifies

as a disability, Becker has not alleged that, due to her unspecified spinal condition, she was unable to take

the vaccine. If Becker did so, "[w]ithout anything contradicting that allegation—even if it appears

questionable on its face—such conditions would not be 'a personal choice,'" and thus would qualify as a

disability. See McGinn v. Haw. Symphony Orchestra, No. 23-00415 JMS-RT, 2024 WL 1348639, at *18

(D. Haw. Mar. 29, 2024) (finding alleged life-long severe asthma, that caused severe adverse reactions to

influenzas vaccines in the past, sufficient to state that the plaintiff had a disability).

2. Adverse Employment Action

Becker fails to adequately allege an adverse employment action taken by defendant

because of her disability. What constitutes an "adverse employment action" is defined broadly. Ray v.

Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000); see Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th

Cir. 2000) (collecting cases). "[A]n adverse employment action exists where an employer's action

negatively affects its employee's compensation." Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840,

847 (9th Cir. 2004) (citing Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002))

(holding that a reduction in base monthly pay was an adverse employment action even though, with

commission and bonuses, it might have equaled the same net pay); cf. Univ. of Haw. Pro. Assembly v.

Cayetano, 183 F.3d 1096, 1105-06 (9th Cir. 1999) (holding that receiving pay even a couple of days late

can seriously affect an employee's financial situation and constitutes substantial impairment under the

Contracts Clause). "A warning letter or negative review also can be considered an adverse employment

action." Fonesca, 374 F.3d at 847 (citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)).

Becker does not allege that she was terminated, suspended, demoted, or suffered any

negative consequences whatsoever. Simply stating that defendant "engaged in a series of adverse

employment actions," Compl. ¶ 42, is not enough. Becker must state with some particularity exactly what

adverse employment actions she suffered.

3. Notice

Becker has failed to adequately allege that she placed defendant on notice of her disability.

Becker alleges that "when Plaintiff informed Defendant of her medical concerns regarding the COVID-19

vaccine, the Defendant failed to make a good faith effort to accommodate Plaintiff." Compl. ¶ 46.

However, as discussed above, Becker has not stated with particularity exactly what disability she has, and

if that disability prevents her from taking the vaccine. In turn, without supporting factual allegations

indicating the existence of a disability, Becker cannot adequately plead notice. Moreover, Becker has not

explained why, even if she establishes a qualifying disability and notice, the offered accommodations were

unreasonable.

For these reasons, the Court dismisses Becker's claims for disability discrimination.

CONCLUSION

For the foregoing reasons, defendant's Motion to Dismiss, ECF [6], is GRANTED.

Plaintiffs’ complaint is dismissed without prejudice and with leave to amend. In the event that plaintiffs

elect to file an amended complaint, they must do so within fourteen (14) days of this Order.

IT IS SO ORDERED.

DATED this 7th day of August, 2024. .

Mtn bee Y jZson

Adrienne Nelson

United States District Judge