Miller v. Charleston Area Medical Center

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CHARLES MILLER,

Plaintiff,

v. CIVIL ACTION NO. 2:23-cv-00340

CHARLESTON AREA MEDICAL CENTER,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Charleston Area Medical Center Inc.’s

(“CAMC”) Motion to Dismiss [ECF No. 9]. Plaintiff Charles Miller responded in

opposition, [ECF No. 14], and CAMC replied [ECF No. 17]. For the reasons stated

herein, CAMC’s Motion is GRANTED in part, and DENIED in part.

I. Background

Mr. Miller worked as a respiratory therapist at CAMC for over 30 years.

[ECF No. 1, ¶¶ 7, 13]. In September of 2021, to comply with a federal Centers for

Medicaid and Medicare Services (“CMS”) mandate, CAMC implemented a policy

requiring all employees to be fully vaccinated against COVID-19. ¶ 14. CAMC’s

mandate provided employees the opportunity to request exemptions based on

religious and/or medical objections to receiving the vaccine. [ECF No. 9-1, at 2

(“Anyone requesting an exemption/accommodation must submit a completed

‘Request for Exemption from COVID-19 Vaccination’ form by Sept. 8. . . . These

forms will be reviewed and the employee notified if approved.”)]; [ECF No.

9-2 (explaining the vaccination policy and providing a link to an exemption request

form)]. CAMC informed employees that they would be terminated if they were not

vaccinated or had not received an exemption by February 23, 2022. [ECF No. 1, ¶

27].

Mr. Miller submitted a request seeking both a religious and medical

exemption on September 11, 2021. [ECF No. 1-1]. His religious exemption request—

as repeated in his Complaint—explained his beliefs regarding the vaccine. Mr.

Miller stated in his exemption request that the vaccine uses “fetal cell lines, which

originated from aborted fetuses” and accepting the vaccine would make him

“complicit in an action that offends [his] religious faith.” [ECF No. 1, ¶¶ 18, 19]. He

also alleges that being coerced to “take a medical treatment violates his religious

faith and his right of conscience.” ¶ 20. Mr. Miller then voiced his belief that the

vaccine is “gene therapy with the potential to alter a recipient’s DNA, which is a

violation of God’s will and his bodily autonomy.” ¶ 21. Last, he expressed views

that CAMC’s mandate violates (1) informed consent and the Nuremberg Code; (2)

an employee’s right to privacy; and (3) the Americans with Disabilities Act. ¶ 25.

With respect to his medical exemption request, CAMC requested an affidavit

from Mr. Miller’s physician about his medical status, and Mr. Miller provided a

signed letter to CAMC from Dr. Gregory Harrah. at 26; [ECF No. 9-4]. Dr.

Harrah stated that Mr. Miller “has multiple medical problems and most recently

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underwent coronary artery surgery” and thus, “[d]ue to his current situation is (sic)

medically necessary that he not receive Covid vaccine at this time.” [ECF No. 9-4, at

1].

CAMC denied both of Mr. Miller’s exemption requests. On February 23, 2022,

Mr. Miller submitted a second exemption request via a notarized letter stating that

he strongly does not believe in gene therapy, and he cannot in good conscience and

in accord with his religious faith receive the COVID vaccine. [ECF No. 1, ¶ 29];

[ECF No. 1-2]. His supervisor notified him on this same day that he would be

terminated if he remained unvaccinated, and on February 24, 2022—the day after

the vaccine mandate went into effect—Plaintiff was terminated from his position at

CAMC. [ECF No. 1, ¶ 33].

Following his termination from CAMC, Mr. Miller filed a complaint with the

United States Equal Employment Opportunity Commission (“EEOC”) alleging both

religious and disability discrimination. ¶ 34. The EEOC gave Plaintiff notice of a

right to sue on January 19, 2023. He filed the instant action on April 19, 2023.

In his Complaint, Mr. Miller alleges five causes of action against CAMC: (1)

religious discrimination in violation of Title VII; (2) disability discrimination in

violation of the Americans with Disabilities Act (“ADA”); (3) religious discrimination

in violation of the West Virginia Human Rights Act (“WVHRA”);1 (4) disability

discrimination, also in violation of the WVHRA; and (5) a violation of West Virginia

1 Plaintiff refers to this Act as the “Civil Rights Act” in his Complaint, but the short title is actually

“The West Virginia Human Rights Act.” W. Va. Code § 5-11-1.

3

Code Section 16-3-4b, which provides for exemptions to compulsory immunization

against COVID-19 as a condition of employment. [ECF No. 1, at 8, 9, 12, 14].

On July 5, 2023, CAMC filed a motion to dismiss the complaint in its

entirety, alleging that Mr. Miller has failed to state any claim upon which relief can

be granted. [ECF No. 9]. Plaintiff responded in opposition,2 [ECF No. 14], and

CAMC replied, [ECF No. 17]. The matter is now ripe for review.

II. Legal Standard

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. , 521 F.3d 298, 302 (4th Cir. 2008).

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” ,

556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555

2 In Plaintiff’s response, he urges the court to apply a liberal construction to his Complaint because

“actions brought under civil rights laws are ‘liberally construed by reviewing courts.’” [ECF No. 14,

at 3 (quoting , 452 F.2d 1078 (3d Cir. 1971))]. Plaintiff also cites three

other cases that he alleges say the same. However, Plaintiff fails to explain to the Court that in

, the Third Circuit liberally construed the complaint because civil rights actions “are often

brought by persons who have had little or no legal assistance in preparing their petitions.” ,

452 F.2d at 1079. Further, when quoting , Plaintiff excluded the

beginning—and most important part—of the quote, which states “the Supreme Court has instructed

the federal courts to liberally construe the ‘inartful pleading’ , . . . and we have

emphasized that the rule of liberal construction is ‘particularly important in civil rights cases.’” 207

F.3d 650, 653 (9th Cir. 2000) (emphasis added) (internal citations omitted). Last, Plaintiff fails to

cite any Fourth Circuit case law, and in this Circuit, the rule is that “a litigant’s pleadings are

to be liberally construed.” ( , 636 F. App’x 101, 101 (4th Cir. 2016) (giving

liberal construction to a pro se pleading when the Plaintiff alleged Title VII violations);

, 574 F.2d 1147, 1151 (4th Cir. 1978). As Mr. Miller is represented by counsel in this

matter, this court will not construe his pleadings using the standard reserved for litigants.

4

(2007)). “When ruling on a motion to dismiss, courts must accept as true all of the

factual allegations contained in the complaint and draw all reasonable inferences in

favor of the plaintiff.” , No. 2:18-CV-

01334, 2019 WL 956806, at *1 (S.D. W. Va. Feb. 27, 2019) (citing

, 637 F.3d 435, 440 (4th Cir. 2011)).

To survive a motion to dismiss, the plaintiff's factual allegations, taken as

true, must “state a claim to relief that is plausible on its face.”

, 679 F.3d 278, 288 (4th Cir. 2012) (quoting , 556 U.S. at

678). The plausibility standard is not a probability requirement, but “asks for more

than a sheer possibility that a defendant has acted unlawfully.” , 556 U.S. at

678 (citing , 550 U.S. at 556). To achieve facial plausibility, the plaintiff

must plead facts allowing the court to draw the reasonable inference that the

defendant is liable, moving the claim beyond the realm of mere possibility. . at

570 Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a

cause of action” are insufficient. , 550 U.S. at 555. Thus, “a complaint is to

be construed liberally so as to do substantial justice.” , 846

F.3d 757, 777 (4th Cir. 2017).

III. Analysis

As stated, Mr. Miller alleges two claims for religious discrimination under

Title VII and the WVHRA. He also argues disability discrimination under the ADA

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and the WVHRA. Last, he alleges a violation of W. Va. Code § 16-3-4b. I will discuss

each in turn.

A. Religious Discrimination under Title VII

Mr. Miller first argues that he “asserted bona fide religious beliefs that

conflicted with CAMC’s mandatory vaccine policy,” and CAMC violated Title VII by

failing to offer a reasonable accommodation for his religious beliefs and

subsequently terminating his employment based on those beliefs. [ECF No. 1, ¶¶

42–49]. Mr. Miller also alleges that submitting religious exemption requests was

protected activity, and CAMC retaliated against him “by denying his exemption

requests and terminating him.” ¶¶ 50–52. I will examine each of these

allegations.

1. Failure to Accommodate

Title VII of the Civil Rights Act provides that one may prove discrimination

in employment by showing disparate treatment, or “intentional discrimination.”

., 676 F. App’x 170, 174 (4th Cir. 2017). The

Act “prohibits an employer from discriminat[ing] against any individual because of

such individual’s . . . religion.” (quoting 42 U.S.C. § 2000e–2(a)(1)) (cleaned up)

(internal quotations omitted). Religion is defined as including “all aspects of

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

demonstrates that he is unable to reasonably accommodate to an employee’s . . .

religious observance or practice without undue hardship.” 42 U.S.C. § 2000e(j). This

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definition includes a requirement that an employer “accommodate” religious beliefs,

and as such, a plaintiff can bring a claim based on failure to accommodate.

, 101 F.3d 1012, 1018 (4th Cir. 1996) (“[A]n

employer must, to an extent, actively attempt to accommodate an employee’s

religious expression or conduct.”).

Religious accommodation cases allow employees to establish a claim even if

they cannot show that “other (unprotected) employees were treated more favorably

or cannot rebut an employer’s legitimate, non-discriminatory reason” for a

discharge. Thus, “[t]o establish a prima facie religious accommodation claim, a

plaintiff must establish that: ‘(1) he or she has a bona fide religious belief that

conflicts with an employment requirement; (2) he or she informed the employer of

this belief; (3) he or she was disciplined for failure to comply with the conflicting

employment requirement.’” at 1019 (quoting ,

757 F.2d 4765, 481 (2d Cir. 1985)).

Title VII does not, however, protect secular beliefs, and an employer has no

duty to accommodate such preferences. , 9 F. App’x 186,

192 (4th Cir. 2001) (citing , 139 F.3d 679, 682 (9th

Cir.1998)); , No. 1:23-cv-00132, 2023 WL

6038016, at *4 (E.D. Va. Sept. 14, 2023) (“Title VII does not protect just any belief.

To be protected, an employee’s belief must be religious in nature.”). Courts—which

are not in a position to “question the centrality of particular beliefs or practices of

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faith, or the validity of particular litigants’ interpretations of those creeds,”

, 490 U.S. 680, 699 (1989)—should instead determine whether

an individual’s purported beliefs are both sincerely held and religious in nature.

, 2023 WL 6038016, at *4 (citing , 398 U.S. 333, 339

(1970)). In analyzing whether beliefs are religious in nature, courts in this circuit

have analyzed whether the beliefs “address fundamental and ultimate questions . . .

[of] deep and imponderable matters.” (citing , 662 F.2d 1025

(3d Cir. 1981); , No. SAG-23-00893, 2023 WL

6845425, at *4 (D. Md. Oct. 17, 2023). Thus, in order to determine whether Mr.

Miller has sufficiently made a case for failure to accommodate, I will

focus on only his religious assertions and not on other personal or scientific beliefs.

In Mr. Miller’s religious exemption requests, he stated that “any coerced

medical treatment goes against my religious faith and the right of conscience to

control one’s own medical treatment.” [ECF No. 1-1, at 2] 3 However, “beliefs

amounting to a declaration that an employee has the right to make unilateral

decisions do not constitute religious beliefs, even where religion is expressly invoked

in communicating the beliefs.” , 2023 WL 6845425, at *4;

, 623 F. Supp. 3d 458, 465 (M.D. Penn. 2022) (“[Plaintiff’s belief

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

3 His other arguments, which explain his beliefs about informed consent, Nuremberg Code violations,

ADA violations, and potential tort liability for battery. [ECF No. 1-1, at 3–4], are based on personal

and secular beliefs and do not go towards a sincerely held religious belief. As such, the court need not

consider them.

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‘blanket privilege’ and a ‘limitless excuse for avoiding all unwanted . . .

obligations.”) (quoting , 662 F.2d at 1030–31) (second alteration in original).

Mr. Miller also argued that “[p]artaking in a vaccine made from aborted

fetuses makes [him] complicit in an action that offends [his] religious faith” because

manufacturers have “developed and confirmed their vaccines use fetal cell lines.”

[ECF No. 1-1, at 2]; [ECF No. 1, ¶ 17 (“Mr. Miller is a member of the United

Methodist Church . . . [and] holds religious objections to the use of aborted fetal

cells in the production of all COVID-19 vaccines.”)]. There is nothing at this stage to

suggest this belief is not sincerely held, and Mr. Miller has sufficiently pleaded a

nexus between his belief and his religion. ,

, 651 F. Supp. 3d 695, 722 (S.D.N.Y. 2023) (finding that the complaint

“alleges a nexus between [Plaintiff’s] religious beliefs . . . and her refusal to receive

the vaccine” because she believed the injections “involve the use of aborted fetal

cells”).

CAMC argues that Mr. Miller does not have a bona fide religious belief

because his letter was “a generic covid letter” that “was not drafted by him

specifically.” [ECF No. 10, at 6]. Instead, CAMC alleges that he copied a letter

verbatim that he found on the internet and submitted it as his own exemption

request “as if the generic letter set forth his unique, religious beliefs and was not

just something he happened to find online.” at 6–7.4 I do not find this reasoning

4 CAMC also points to an alleged discrepancy between Mr. Miller’s bona fide religious belief in his

exemption letter and statements made to an administrative law judge (“ALJ”), and CAMC attached

9

convincing. The fact that Mr. Miller may have found this letter online does not

prove that he does not believe in the contents of the letter. As such, Mr. Miller’s

failure to accommodate claim under Title VII need not be dismissed.5

2. Retaliation

Mr. Miller next alleges that “CAMC retaliated against Mr. Miller by denying

his exemption requests and terminating him.” [ECF No. 1, ¶ 52]. Title VII’s anti-

retaliation provision “prevents an employer from interfering (through retaliation)

with an employee’s efforts to secure or advance enforcement of the Act’s basic

guarantees.” , 548 U.S. 53, 63 (2006)

(citing 42 U.S.C. § 2000e–3(a)). To establish a claim under Title VII for retaliation, a

plaintiff must demonstrate “(1) that [he] engaged in a protected activity, as well as

(2) that [his] employer took an adverse employment action against [him], and (3)

that there was a causal link between the two events.” ,

796 F.3d 409, 416 (4th Cir. 2015) (quoting ,

786 F.3d 264, 281 (4th Cir. 2015)). “The text, structure, and history of Title VII

demonstrate that a plaintiff making a retaliation claim . . . must establish that his

this transcript to its motion to dismiss. [ECF No. 9-5]. At the motion to dismiss stage, courts may

rely on evidence even if extraneous to the complaint if the evidence is “integral to and explicitly

relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.”

, 367 F.3d 212, 234 (4th Cir. 2004). Although Mr. Miller does not

challenge the exhibit’s authenticity, it is not proper for the court to consider this exhibit at the

motion to dismiss stage. Mr. Miller stated his religious beliefs in his Complaint using support from

his exemption requests, and the Complaint does not make mention of nor “explicitly rel[y] on” the

hearing in front of the ALJ. Considering such exhibit would convert this motion to one for summary

judgment, which is not appropriate at this stage. , 824

F.3d 62, 68 n.1 (4th Cir. 2016).

5 At this stage, the Court expresses no opinion on whether the religious exemption would pose an

undue hardship on Defendant.

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or her protected activity was a but for cause of the alleged adverse action by the

employer.” , 570 U.S. 338, 362 (2013).

Here, Mr. Miller argues that his protected activity was submitting the

religious exemption request to CAMC, wherein he expressed his legal concerns with

the vaccine mandate. However, the Court need not address whether this activity is

protected because Mr. Miller failed to establish a causal connection between his

accommodation request and his termination from CAMC. His choice not to get

vaccinated by the February 23, 2022, deadline, would have resulted in his

subsequent termination whether or not he submitted such exemption requests. As

such, he cannot make out a retaliation claim.

B. Religious Discrimination in Violation of the WVHRA

Next, Mr. Miller argues that he asserted bona fide religious beliefs, and by

failing to offer any accommodations and by denying his exemption request, CAMC

discriminated against him on the basis of his religious beliefs. [ECF No. 1, ¶¶ 67–

73]. CAMC again argues that Mr. Miller does not have a bona fide religious belief.

[ECF No. 10, at 6].

The WVHRA makes it unlawful for employers to discriminate against

individuals if the individual is “able and competent to perform the services

required.” W. Va. Code § 5-11-9. West Virginia’s Code of State Rules provides that

employers cannot discriminate “on the basis of religion, . . . against an individual

concerning the terms, conditions, or privileges of employment unless it can be

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shown that the employer cannot reasonably accommodate an employee's . . .

religious observance or practice without undue hardship on the conduct of its

business.” W. Va. Code St. R. § 77-3-3. The burden to prove that an accommodation

imposes an undue hardship is on the employer, and “resolution of such cases

depends on specific factual circumstances.”

Here, I have found that Mr. Miller has pleaded a bona fide religious belief by

asserting that the use of aborted fetal cells violates his religion. Furthermore,

CAMC has not argued—but reserved the right to assert—that it would suffer an

undue hardship if Mr. Miller were permitted to work unvaccinated. [ECF No.

10, at n.4]. As such, this claim is not dismissed.

C. Disability Discrimination Under the ADA

Mr. Miller next alleges that he was discriminated against based on a

“perceived disability” of “being unvaccinated” because “CAMC regarded

unvaccinated individuals as being ‘disabled’ and unable to perform the duties of

their employment.” [ECF No. 1, ¶¶ 60, 61]. He then alleges that “virtually every

employer in America has shown that reasonable accommodations and alternatives

to vaccination” exist and that CAMC cannot show that any alternative, less-

intrusive accommodations would cause undue hardship. ¶ 64–66. Mr. Miller also

asserts that CAMC did not engage in an interactive process or conduct an

individualized assessment of his “unique circumstances.” ¶ 59.

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CAMC argues that Mr. Miller cannot establish a case under the

ADA as he is neither disabled nor regarded as having a disability. [ECF No. 10, at

10–11]. CAMC claims that Mr. Miller provides no evidence that he was perceived as

disabled, and to hold otherwise would lead to the “absurd result that CAMC would

have to consider , prior to the CMS mandate, to be disabled.”

at 13. Moreover, CAMC asserts that Mr. Miller did not—and cannot—allege that he

was treated differently because the vaccine mandate was facially neutral and

applied to all CAMC employees. at 17.6

The ADA provides that “no covered entity shall discriminate against a

qualified individual on the basis of disability in regard to . . . the hiring,

advancement, or discharge of employees, . . . and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112. To establish a case for

wrongful discharge under the ADA, a plaintiff must demonstrate that “(1) he is

within the ADA’s protected class; (2) he was discharged; (3) at the time of his

discharge, he was performing the job at a level that met his employer’s legitimate

expectations; and (4) his discharge occurred under circumstances that raise a

reasonable inference of unlawful discrimination.” ,

6 CAMC also argues that it has a legitimate, non-discriminatory reason for denying both of Mr.

Miller’s exemption requests. [ECF No. 10, at 14–17]. However, this issue is not properly before the

court at this time because a plaintiff “is not generally required to plead facts that specifically rebut a

defendant’s legitimate, nondiscriminatory reasons.” , 922 F. Supp. 2d 19, 23

(D.D.C. 2013); , 908 F. Supp.2d 330, 343 (E.D.N.Y. 2012) (finding

that a defendant’s showing of a legitimate, non-discriminatory reason “is an issue to be decided on

summary judgment, not at the motion to dismiss stage”); ,

No. 1:20-cv-00029, 2020 WL 13064724, at *5 (E.D. Tenn. Sept. 3, 2020) (noting that a non-

discriminatory reason is “properly addressed at the summary judgment stage”).

13

252 F.3d 696, 702 (4th Cir. 2001) (citing ,

53 F.3d 55, 58 (4th Cir. 1995)). To be within the ADA’s protected class, one must be

“a qualified individual with a disability.” (citing 42 U.S.C. § 12112). A disability

means “a physical or mental impairment that substantially limits one or more

major life activities . . . or being regarded as having such an impairment.” 42 U.S.C.

§ 12102(1). Working is an example of a major life activity. § 12102(2)(A). An

individual is “regarded as having such an impairment” if he establishes that he has

been subjected to a prohibited action due to an actual or perceived physical or

mental impairment, “whether or not the impairment limits or is perceived to limit a

major life activity.” § 12102(3). Here, Mr. Miller has only alleged that CAMC

discriminated against him because he was “regarded as” having a disability: “being

unvaccinated.” [ECF No. 1, ¶ 60].

In examining Mr. Miller’s disability discrimination claim against CAMC, I

must first address deficiencies in the party’s pleading as they are of particular

concern to the Court. First, in his Complaint, Mr. Miller seemingly accuses a third

party, 3M, of disability discrimination. [ECF No. 1, ¶ 62 (“CAMC discriminated

against Mr. Miller by termination if he failed to receive the COVID-19 vaccine, a

‘condition’ regarded as a disability under .”) (emphasis added)];

¶ 63 (“Plaintiff had been successfully performing his job for months with no

apparent danger to fellow employees or 3M’s operation.”). Plaintiff references 3M a

third time, ¶ 41, yet Mr. Miller is not suing 3M, and he does not attempt to

14

explain 3M’s relationship to this action. This is presumably because Plaintiff copied

these paragraphs from a different federal complaint in which 3M is a party.

Verified Complaint ¶ 138, , No. 0:22-cv-03087, 2023 WL

3309784 (D. Minn. Apr. 20, 2023), ECF No. 1. As 3M is not a party to this action,

the court will strike paragraphs 62 and 63 from the Complaint. Fed. R. Civ. P.

12(f) (“The Court [on its own] may strike from a pleading . . . any immaterial,

impertinent, or scandalous matter.”).

The skeletal remains of his ADA claim do not present a proper basis for

relief. Mr. Miller has only alleged a mere conclusory statement that CAMC

regarded unvaccinated individuals as being disabled and “unable to perform the

duties of their employment,” [ECF No. 1, ¶ 61], and such statement is

insufficient to establish a claim under the ADA. The CMS Mandate was applicable

to every employee. And it is not that CAMC believed him to be to perform,

but rather, by refusing to receive the vaccine, he became for the job. This

distinction is important. To hold otherwise “would require inferring that [CAMC]

regarded all of its [] employees as having a disability” prior to receiving the vaccine,

which is an assumption that other courts have found to be “implausible.”

, No. 122CV00326BKSDJS, 2023 WL

2390360, at *8 (N.D.N.Y. Mar. 7, 2023) (quoting , 616 F.

Supp. 3d 920 (E.D. Mo. 2022) (finding the inference that all unvaccinated employees

have a disability to be unreasonable), , No. 22-2618, 2023 WL 1487782 (8th Cir.

15

Feb. 3, 2023), , No. 23-145, 2023 WL 6558492 (U.S. Oct. 10, 2023)).

Other courts in this Circuit agree. ,

., No. CV SAG-22-01648, 2023 WL 1472022, at *4 (D. Md. Feb. 2, 2023) (“Merely

requiring Plaintiff to follow a COVID-19 safety policy applicable to all employees

does not support the inference that [Defendant] classified Plaintiff as disabled

under ADA.”), , No. 23-1198, 2023 WL 4105705 (4th Cir. June 21, 2023);

, No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *5

(W.D.N.C. Aug. 17, 2022) (finding that Defendant did not classify Plaintiff as

having an impairment that limited a major life activity because “she was simply

required to become vaccinated under the Company's COVID-19 policy applicable to

all employees which . . . plainly did not impair her ability to work”). I find the

reasoning of these courts to be persuasive. As such, Count II fails to state a claim

upon which relief can be granted and must be dismissed.

D. Disability Discrimination in Violation of the WVHRA

I also find Mr. Miller’s disability discrimination claim to be unsuccessful

under the WVHRA. The WVHRA provisions are almost identical to that of the ADA,

making it unlawful “[f]or an employer to discriminate against an individual . . . if

the individual is able and competent to perform the services required even if such

individual is . . . disabled.” W. Va. Code § 5-11-9(1). To discriminate means “to

exclude from, or fail or refuse to extend to, a person equal opportunities because of .

. . disability.” § 5-11-3(h). The definition of disability in the WVHRA is similar to

16

that under the ADA, and it encompasses any impairment which substantially limits

a major life activity, such as working, or “being regarded as having such

impairment.” § 5-11-3(m).

To establish a case of employment discrimination under the

WVHRA, an individual must prove that (1) he is a member of a protected class; (2)

the employer made an adverse decision concerning him; and (3) “but for [his]

protected status, the adverse decision would not have been made.” Syl. Pt. 3,

, 358 S.E.2d 423 (W. Va. 1986). For this count,

Mr. Miller alleges he is a member of a protected class because CAMC perceived him

to be “necessarily immuno-deficient and thereby unable to safely perform his job

duties in the workplace.” [ECF No. 14, at 9]. Further, Mr. Miller argues that

CAMC’s conclusion that his vaccination status limits him from “ duties and

position[s]” was discriminatory. at 11.

For the same reasons as discussed above, Mr. Miller cannot show that CAMC

regarded him as having a disability. Regarding all unvaccinated individuals as

being disabled is implausible, particularly because CAMC allowed unvaccinated

individuals to remain employed if they qualified for a vaccine exemption consistent

with federal law. As such, this claim must also fail.

E. Violation of W. Va. Code § 16-3-4b

Last, Mr. Miller alleges that CAMC violated of West Virginia Code Section

16-3-4b. Specifically, Mr. Miller argues that he provided two certifications—one

17

notarized stating his religious objections and another from his licensed physician—

that explained why he could not receive the COVID-19 vaccine. [ECF No. 1, ¶¶ 91–

92]. Because the hospital failed to grant his exemption requests, Mr. Miller asserts

that CAMC violated state law. ¶ 94.

The Act, which went into effect January 18, 2022, states that “[a] covered

employer . . . shall exempt current or prospective employees from . . . immunization

requirements upon the presentation of one” of two certifications: (1) a certification

signed by a licensed physician or registered nurse stating that the physical

condition of the employee is such that a COVID-19 immunization is contraindicated;

or (2) a notarized certification executed by the employee stating that he has a

sincerely held religious belief that prevents him from taking the COVID-19 vaccine.

W. Va. Code § 16-3-4b(a). If an individual exercises exemption rights under this

statute, the covered employer may not discriminate against or penalize its

employees via practices such as firing. § 16-3-4b(b).

A covered employer includes any business entity engaged in any business

activity within West Virginia, including for-profit or not-for-profit activity, with

employees. § 16-3-4b(c). However, a covered employer “does not include any

Medicare or Medicaid-certified facilities which are subject to enforceable federal

regulations contrary to the requirements of this section.” Any person “harmed by

a violation of [W. Va. Code § 16-3-4b] may seek injunctive relief.” § 16-3-4b(e).

18

CAMC argues that this provision in the West Virginia Code is preempted by

the federal CMS mandate. [ECF No. 10, at 19]. It further contends that because

CAMC is a Medicare or Medicaid-certified facility, it is expressly outside the scope

of the Act. at 19–20. Last, CAMC asserts that the state law does not grant a

private cause of action. Taken together, CAMC argues Mr. Miller’s claim is

precluded.

Mr. Miller counters that CAMC can comply with both the CMS mandate and

West Virginia law because both contain exemption requirements that “aim to

achieve the same purpose” of protecting employees with sincere religious beliefs or

medical reasons that preclude them from complying with a vaccine mandate. [ECF

No. 14, at 15]. In other words, Mr. Miller states that both laws “prevent employees

from being held hostage by their employer,” and because there is no clear evidence

of a conflict of laws, CAMC must comply with West Virginia Code § 16-3-4b.

Mr. Miller’s argument is unavailing. Federal preemption is rooted in the

Supremacy Clause of the Constitution, which provides that “[t]his Constitution, and

the Laws of the United States which shall be made in Pursuance thereof ... shall be

the supreme Law of the Land ... any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Preemption may be

express or implied. , 575 U.S. 373, 376–77 (2015). Field

preemption exists if Congress intended “‘to foreclose any state regulation in the

area’ irrespective of whether state law is consistent or inconsistent with ‘federal

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standards.’” at 377 (quoting , 567 U.S. 387, 401 (2012)).

Conflict preemption, on the other hand, exists where “compliance with both state

and federal law is impossible” or where “the state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.’”

(quoting , 490 U.S. 93, 100–01 (1989)).

On November 5, 2021, CMS issued an interim rule requiring certain health

care providers or hospitals to ensure that its employees are vaccinated against

COVID-19. 86 Fed. Reg. 61561, 61616–27. This rule requires those who participate

in Medicare and Medicaid programs to implement the CMS Mandate and provides

that noncompliance may result in civil monetary penalties, termination of

participation in Medicare and Medicaid, or denial of payment for new admissions.

at 61574. The Supreme Court has ruled that CMS can enforce its mandate.

, 595 U.S. 87 (2022).

Mr. Miller concedes that CAMC is subject to the federal rules and

implemented its vaccine policy “in compliance with the federal CMS mandate.”

[ECF No. 1, ¶ 14]. Moreover, the West Virginia legislature recognized that its law is

inconsistent with the federal CMS Mandate and expressly excluded from its law

any Medicare or Medicaid-certified facilities “which are subject to enforceable

federal regulations to the requirements of this section.” W. Va. Code § 16-

3-4b (emphasis added). As such, CAMC is not a “covered employer” under the Act,

and the plain reading of the statute forecloses Mr. Miller’s argument. (“[A]

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. . . shall exempt current or prospective employees from . . .

immunization requirements . . . .”). Because CAMC is not a covered employer, it is

not subject to the Act’s requirements. As such, Count V must be dismissed.

IV. Amendment of the Pleadings

In his response, Mr. Miller “respectfully requests leave to amend to correct

any such insufficiencies” should I find any of his claims to be “insufficiently

pleaded.” [ECF No. 14, at 3–4]. This request falls short of the expectation that a

plaintiff file a motion for leave to amend and explain the changes he attempts to

make. Rule 15 allows a party to amend its pleading “once as a matter of course no

later than . . . 21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P.

15(a)(1)(B). If not, “in all other cases, a party may amend its pleading only with the

opposing party’s written consent or the court’s leave.” at (a)(2). The Rules

permitted Mr. Miller to amend his complaint as of right after Defendant’s filed the

present Motion to Dismiss but chose not to do so. Instead, Mr. Miller responded to

the motion and, in an ostensible concession that some of his claims may be

insufficient, asked for leave to amend “in the event” that I agree with Defendant’s

position. As such, I need not consider this request.

V. Conclusion

For the foregoing reasons, Defendant’s motion to Dismiss is GRANTED in

part as to Counts II, IV, and V, and such claims are DISMISSED with prejudice.

Defendant’s Motion, however, is DENIED in part as to Counts I and III, and

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Plaintiffs religious discrimination claims for failure to accommodate under Title VII

and the WVHRA remain pending. The court DIRECTS the Clerk to send a copy of

this Order to counsel of record and any unrepresented party.

ENTER: November 14, 2023

JOSEP . GOODW

ee STATES om JUDGE

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