# Stein v. Austin

> District Court, S.D. Ohio · February 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10800786

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10800786

## How later opinions describe it (automated extraction)

- holding that an employee is not entitled to the accommodation of their choice, but only a reasonable accommodation
- clarifying plausibility standard from Twombly
- explaining that a claim for damages is not rendered moot when a related injunctive relief claim becomes moot

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MATTHEW A. STEIN,

Plaintiff,
Case No. 2:24-cv-990
v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura
SECRETARY LLOYD J.
AUSTIN, III, et al.,

Defendants.

OPINION AND ORDER
This matter is before the Court on Defendant Aaron McGuire’s Motion to Dismiss for Lack
of Jurisdiction (McGuire Mot., ECF No. 8) and the Motion to Dismiss for Lack of Jurisdiction and
Failure to State a Claim filed by Defendant Lloyd J. Austin, III, Secretary of the United States
Department of Defense (Austin Mot., ECF No. 9). Plaintiff Matthew A. Stein, who is proceeding
without the assistance of counsel, opposed both Motions. (McGuire Opp., ECF No. 10; Austin
Opp., ECF No. 11.) For the reasons below, the Court GRANTS IN PART and DENIES IN PART
Secretary Austin’s Motion (ECF No. 9) and GRANTS Defendant McGuire’s Motion (ECF No. 8).
I. BACKGROUND
Mr. Stein is employed as a Contract Specialist for the Defense Logistics Agency (“DLA”)
located at the Defense Supply Center Columbus. (See Compl., ECF No. 1, PageID 9.) DLA is an
agency of the United States Department of Defense (“DOD”). (Id.; Austin Mot., PageID 130.) Mr.
Stein claims that he had a sincere religious objection to the DOD’s COVID-19 vaccination, testing,
and masking requirements. (See Compl.)
A. Factual Background
The Parties’ dispute began after President Biden issued Executive Order No. 14043 in
response to the public health emergency caused by COVID-19. See Exec. Order No. 14043,
Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, 86 Fed. Reg. 50,989

(Sept. 14, 2021). This Executive Order required all federal civilian employees to get the COVID-
19 vaccine. Id. at 50,990. In response to the Executive Order, the DOD required its civilian
employees to be fully vaccinated by November 22, 2021. (See ECF No. 9-1, Force Health
Protection Guidance (Supplement 23) Revision 3 (Dec. 20, 2021).) Mr. Stein was an employee
and thus subject to the vaccination mandate, but religious exemptions were permitted. (Id. PageID
155.) DOD employees who were not fully vaccinated were required to comply with certain
masking, testing, physical distancing, and travel restrictions. (Id.)
Executive Order No. 14043 faced legal challenges, including a nationwide injunction that
remained in effect for over a year. Feds for Med. Freedom v. Biden, 581 F. Supp. 3d 826, 836–37
(S.D. Tex. 2022), aff’d, 63 F.4th 366 (5th Cir. 2023) (en banc), vacated as moot, 144 S. Ct. 480
(2023).1 After these legal challenges, the DOD issued new guidance withdrawing certain protocols

tied to an employee’s vaccination status. (See ECF No. 9-2, Consolidated Department of Defense
Coronavirus Disease 2019 Force Health Protection Guidance—Revision 4 (Jan. 30, 2023).)
President Biden, citing improving public health conditions, then issued Executive Order No.

1 The DOD mandate requiring all members of the armed services to be vaccinated faced a similar
legal challenge. See Doster v. Kendall, 54 F.4th 398, 406 (6th Cir. 2022), reh’g denied, 65 F.4th
792 (6th Cir. 2023) (en banc) (enjoining the vaccination requirement for members of the armed
services). But after Executive Order 14099 revoked the vaccination requirement, the defendants
in that case petitioned the Supreme Court to vacate the preliminary injunctions as moot. Id. The
Supreme Court ordered the requested relief, and in time, the district court in Doster dismissed the
case on mootness grounds. Doster v. Kendall, No. 1:22-CV-84, 2024 U.S. Dist. LEXIS 47201
(S.D. Ohio Mar. 18, 2024) (McFarland, J.) (following the Supreme Court’s instruction in Kendall
v. Doster, 144 S. Ct. 481 (2023)).
14099, revoking the vaccination requirement for all DOD civilian employees. See Exec. Order No.
14099, Moving Beyond COVD-19 Vaccination Requirements for Federal Workers, 88 Fed. Reg.
30,891 (May 15, 2023). After that Executive Order, the DOD ended its COVID-19-specific safety
measures. (See ECF No. 9-3, Force Health Protection Guidance—Coronavirus Disease 2019 and

Other Infectious Respiratory Diseases (July 26, 2023).)
Mr. Stein filed this Complaint on March 1, 2024. (Compl.) He alleges that he
communicated to his supervisors in October 2021 that the DOD’s “vaccination, testing and
masking requirements conflict[ed] with [his] sincerely held religious beliefs . . . and requested a
Religious Reasonable Accommodation.” (Id. PageID 9, 18.) He explained that:
As a Christian, I am commanded to not defile my body with unwanted intrusions
such as vaccines [and] nasal testing. Any unwanted intrusion into the body temple
is an affront to God. My body is the temple of the Holy Spirit and I am required to
keep my body and blood pure. I worship God and express my religion through this
practice and observance of keeping my body pure[.] Further, participating in the
deception of testing when you’re not sick is a further transgression against God’s
truth. God does not allow for this type of deception, which is evil.

(Id. PageID 12.)
As an accommodation to the vaccination requirement, Mr. Stein requested that he be
allowed to work from home. (Id. PageID 9, 18.) While his religious exemption was under review,
he alleges that he was told by his Division Chief that:
You have the option to report to the office and comply with testing, wear a mask
and social distance. If you fail to comply you will be charged with AWOL [Absence
Without Leave]. If you report to the office and do not comply with the previously
noted steps, you will be sent home.

(Id. PageID 10–11, 21.) He claims that his request for an exemption was denied because his beliefs
were “philosophical concerns and more secular, than religious in nature.” (Id. PageID 12.)
Because Mr. Stein refused to comply with the testing, masking, and social distancing
requirements, he was disciplined by being charged with absence without leave (“AWOL”) one
working day per week, per DLA’s standard practice. (See id. PageID 21, 26–28.) To charge him
with AWOL, Mr. Stein alleges that his supervisor consulted Defendant McGuire, a Human
Resources Specialist in the Labor and Employee Relations Department of DLA. (Id. PageID 29.)
As a result, he seeks damages for “willful neglect of religious reasonable accommodation” from

Defendant McGuire “whom [is] presumed to [have] recommend[ed] AWOL charges against [Mr.
Stein].” (Id.) This paragraph is the only factual allegation related to Defendant McGuire’s conduct
in the Complaint. (See Compl.)
B. Procedural Background
In November 2022, Mr. Stein filed a formal Equal Employment Opportunity complaint of
discrimination asserting that he was subject to unlawful discrimination based on his Christian
religion. (Id. PageID 15 (Step 4 in Table 5.1.1).) A year and a half later, in March 2024, he filed
this lawsuit. (See Compl.) He characterizes the nature of his lawsuit as a religious discrimination
claim seeking to “correct unlawful employment practices based on religion” under the “Religious
Freedom Rest[o]ration Act” and “Title VII of the Civil Rights Act.” (Id. PageID 6.) His requested

relief includes “appropriate monetary and non-monetary relief for denial of religious
accommodation, unpaid salaries when declared AWOL, [and] attorney fees.”2 (Id.)
The Court construes Mr. Stein’s Complaint as alleging claims for: (1) religious
discrimination—failure to accommodate in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq., (2) religious discrimination—disparate treatment in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (3) a religiously hostile work
environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,

2 The Court notes that Mr. Stein is proceeding without the assistance of counsel and does not have
an attorney.
(4) violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §2000bb-1, and (5)
for intentional infliction of emotional distress. (See Compl.) He sues Defendant McGuire in his
individual capacity and Secretary Austin in his official capacity. (Id. PageID 7.)
Defendant McGuire moved to dismiss the claims against him under Rule 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. (McGuire Mot.) He argues that Mr. Stein has
failed to state a claim for relief because he has not alleged a substantial burden to his religious
exercise, and even if he had, Defendant McGuire is entitled to qualified immunity. (Id. PageID
109.) Secretary Austin also moved to dismiss, arguing that (1) Mr. Stein failed to state a claim on
which relief may be granted, (2) Mr. Stein lacks standing to seek prospective relief, and (3)
Secretary Austin is entitled to sovereign immunity. (Austin Mot., PageID 132.)
II. STANDARD OF REVIEW
A. Federal Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks
subject matter jurisdiction. Without subject matter jurisdiction, a federal court lacks authority to

hear a case. Lightfoot v. Cendant Mortg. Corp., 580 U.S. 82, 92 (2017). Motions to dismiss for
lack of subject matter jurisdiction are either facial attacks or factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Defendants raise both a facial and a factual challenge to
the Court’s jurisdiction. (Austin Mot., PageID 133.)
A facial attack challenges the sufficiency of the pleading itself, and the district court accepts
the allegations of the complaint as true. Ritchie, 15 F.3d at 598. To survive a facial attack, the
complaint must contain a “short and plain statement of the grounds” for jurisdiction. Dehen v. Ohio
State Univ., No. 2:23-cv-517, 2023 U.S. Dist. LEXIS 132477, at *4 (S.D. Ohio June 5, 2023)
(Watson, J.) (citing Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016)).
On the other hand, the factual allegations in a complaint subject to a factual challenge are
not entitled to a presumptive truthfulness. Ohio Nat’l Life Ins. v. United States, 922 F.2d 320, 325
(6th Cir. 1990). The Court must weigh the conflicting evidence to determine whether subject matter
jurisdiction exists. Id. (allowing courts to consider “affidavits, documents and even a limited

evidentiary hearing” to “resolve disputed jurisdictional facts”).
B. Federal Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. While Rule 8(a)(2) requires a pleading to contain a “short
and plain statement of the claim showing that the pleader is entitled to relief,” in order “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft 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. (clarifying plausibility

standard from Twombly). Further, “[a]lthough for purposes of a motion to dismiss [a court] must
take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal
conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal
quotations omitted).
C. Pro Se Pleading Standard
Since Mr. Stein brings this action without the assistance of counsel, he is entitled to a liberal
construction of the Complaint. Pro se complaints are construed liberally and held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
But this more lenient standard has limits. Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th
Cir. 2012). Courts “should not have to guess at the nature of the claim asserted.” Id. (citing Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III. ANALYSIS
Mr. Stein challenges both the DOD’s requirement that civilian employees become

vaccinated and the DOD’s safety protocols for unvaccinated employees. As discussed below, the
DOD policies related to COVID-19 are no longer in effect, thus mooting Mr. Stein’s claims for
prospective injunctive relief. Mr. Stein also seeks monetary damages for alleged violations of Title
VII of the Civil Rights Act of 1964, the Religious Freedom Restoration Act (“RFRA”), and a state-
law claim for intentional infliction of emotional distress. The Court addresses each of Mr. Stein’s
claims in turn.
A. Mr. Stein’s claims for prospective injunctive relief are moot.
Secretary Austin argues that Mr. Stein’s request for prospective injunctive relief is moot
because the policies requiring him to get the COVID-19 vaccine have been rescinded. (Austin
Mot., PageID 137–39.)

Article III of the Constitution limits the power of the federal courts to “Cases” and
“Controversies.” U.S. Const. Art. III, § 2. The “case-or-controversy requirement subsists through
all stages of federal judicial proceedings, trial and appellate.” Chafin v. Chafin, 568 U.S. 165, 172
(2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Federal courts do not have
the power to resolve disputes that are moot. Hanrahan v. Mohr, 905 F.3d 947, 960 (6th Cir. 2018).
“[A] case becomes moot if the issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Doster v. Kendall, No. 1:22-cv-84, 2024 U.S. Dist. LEXIS
47201, at *6 (S.D. Ohio Mar. 18, 2024) (McFarland, J.) (citations omitted). “The test for mootness
is whether the relief sought would, if granted, make a difference to the legal interests of the
parties.” Hanrahan, 905 F.3d at 960 (citations omitted). Put differently, “a court must be able to
grant ‘effectual relief.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)
(quotation omitted).
The policies that Mr. Stein challenges in his Complaint are no longer in effect. See Exec.

Order No. 14099, Moving Beyond COVD-19 Vaccination Requirements for Federal Workers, 88
Fed. Reg. 30,891 (May 9, 2023) (rescinding the vaccination requirement for federal civilian
employees); ECF No. 9-3, Force Health Protection Guidance—Coronavirus Disease 2019 and
Other Infectious Respiratory Diseases (July 26, 2023) (ending the DOD’s COVID safety
measures). In fact, the U.S. Supreme Court instructed lower courts to vacate as moot previous
orders enjoining the DOD’s vaccine mandate. Biden v. Feds for Med. Freedom, 144 S. Ct. 480
(2023) (granting petition for certiorari, vacating the Fifth Circuit’s judgment, and remanding the
case with instructions to direct the district court to vacate as moot its order enjoining the
vaccination requirement for federal civilian employees); Kendall v. Doster, 144 S. Ct. 481 (2023)
(same but instructing lower courts to vacate as moot the Sixth Circuit’s preliminary injunction

enjoining the vaccine requirement for members of the armed services).
With no active COVID-19 vaccination, testing, or masking policy, there is nothing for this
Court to enjoin. Even if the Court granted Mr. Stein’s request for prospective injunctive relief,
since there is no vaccination mandate, the relief sought would not “make a difference to the legal
interests of the parties.” Hanrahan, 905 F.3d at 960. Thus, Mr. Stein’s claims for prospective
injunctive relief are moot and must be dismissed. His claims for retrospective relief, however, are
not moot. See Powell v. McCormack, 395 U.S. 486, 498 (1969) (explaining that a claim for
damages is not rendered moot when a related injunctive relief claim becomes moot).
B. Mr. Stein’s religious discrimination claims under Title VII survive in part.
Mr. Stein raises three claims against Secretary Austin under Title VII.3 Title VII prohibits
employers from discharging or discriminating against any individual because of that individual’s
religion. 42 U.S.C. § 2000e-2. “There are two basic types of religious discrimination claims that

an individual may bring . . . under Title VII: disparate treatment claims and religious
accommodation claims.” Haskins v. Bio Blood Components, No. 1:22-CV-586, 2023 U.S. Dist.
LEXIS 27717, at *4 (W.D. Mich. Feb. 17, 2023) (quoting Reed v. UAW, 564 F.3d 781, 784 (6th
Cir. 2009)). Mr. Stein appears to bring both types of claims. Mr. Stein has pled facts sufficient to
maintain his religious accommodation claim, but not his disparate treatment claims.
i. Reasonable Accommodation Claim
Title VII requires employers to reasonably accommodate employees’ religious beliefs,
assuming the accommodation does not cause the employer undue hardship. To establish a prima
facie case of religious discrimination for his employer’s failure to provide a reasonable
accommodation, Mr. Stein must show that “(1) he holds a sincere religious belief that conflicts

with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he
was discharged or disciplined for failing to comply with the conflicting employment requirement.”
Yeager v. FirstEnergy Generation Corp., 777 F.3d 362, 363 (6th Cir. 2015) (citation omitted).
“A plaintiff does not have to allege specific facts establishing a prima facie case of
discrimination in their complaint,” because “the prima facie case is an evidentiary standard, not a
pleading requirement.” Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir. 2024) (citing

3 Although Mr. Stein’s Complaint does not make clear that his Title VII claims are brought against
Secretary Austin alone, actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-16(c), require that “the head of the department, agency, or unit, as appropriate, shall be
the defendant.” Hancock v. Egger, 848 F.2d 87, 88–89 (6th Cir. 1988). Thus, the Court construes
his Title VII claims against Secretary Austin, the head of the Department of Defense, only.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). But the plaintiff must plead sufficient
facts, that if believed, show that it was the “religious aspect of [his] conduct that motivated [his]
employer’s actions.” Pedreira v. Ky. Baptist Homes for Child., Inc., 579 F.3d 722, 728 (6th Cir.
2009) (citation omitted).

Secretary Austin challenges whether Mr. Stein’s religious belief was sincere and truly in
conflict with the DOD’s requirement that civilian employees either receive the COVID-19 vaccine,
or submit to testing, masking, and social distancing. (Austin Mot., PageID 139–40.) Title VII
defines religion broadly to include “all aspects of religious observance and practice.” 42 U.S.C.
§ 2000e(j). Although the definition of religion is intended to be broad, it does not include every
belief, opinion, or ideology one might embrace. Prida v. Option Care Enters., No. 5:23-cv-00905,
2023 U.S. Dist. LEXIS 190298, at *10 (N.D. Ohio Oct. 24, 2023) (granting motion to dismiss
plaintiff’s challenge to COVID-19 policies because her beliefs were medical, rather than religious,
in nature). If the view is “essentially political, sociological, or philosophical,” it is not entitled to
protection under Title VII. Lawhead v. Brookwood Mgmt. Co., LLC, No. 5:22-cv-00886, 2023 U.S.

Dist. LEXIS 54355, at *6–10 (N.D. Ohio Mar. 29, 2023) (quotation omitted) (explaining that
opposition to vaccination requirements was a political theory, not a religious one).
Courts are instructed to use a “light touch” when assessing the sincerity of a religious belief.
See Davis v. Fort Bend Cnty., 765 F.3d 480, 486 (5th Cir. 2014). When addressing religious
objections to COVID-19 vaccine mandates the Sixth Circuit has adopted an especially light touch
and repudiated efforts to question the veracity of a plaintiff’s religious beliefs. Sturgill v. Am. Red
Cross, 114 F.4th 803, 808 (6th Cir. 2024) (applying Lucky v. Landmark Med. of Mich., P.C., 103
F.4th 1241, 1243 (6th Cir. 2024) and concluding it was enough at the pleading stage that the
plaintiff alleged she prayed about whether to take the vaccine).
The question is whether Mr. Stein has alleged facts supporting an inference that his refusal
to be vaccinated or to comply with testing and masking policies was an “aspect” of his religious
observance, practice, or belief. Lucky, 103 F.4th at 1243 (citing 42 U.S.C. § 2000e(j)). He alleges
that as a Christian he is “commanded to not defile his body with unwanted intrusions such as

vaccines [and] nasal testing.” (Compl., PageID 12.) To him, vaccines are an “affront to God”
because his “body is the temple of the Holy Spirit” and he is required to keep it “pure.” (Id.)
Finally, “testing when you’re not sick is a further transgression against God’s truth.” (Id.)
Mr. Stein’s allegations support an inference that his refusal to be vaccinated was an aspect
of his religious observance or practice or belief. Likewise, he sufficiently alleges that testing for
the virus also conflicted with a religious observance, practice, or belief. (Id.) He has not, however,
alleged how wearing a mask conflicted with his sincerely held religious beliefs. See Ansonia Bd.
of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (holding that an employee is not entitled to the
accommodation of their choice, but only a reasonable accommodation). For this Motion, the Court
will assume, without deciding, that his belief is sincere and conflicted with his employer’s

requirements. Sturgill 114 F.4th at 808; see also Henry v. S. Ohio Med. Ctr., No. 1:22-cv-00679,
2024 U.S. Dist. LEXIS 161562, at *6 (S.D. Ohio Sep. 9, 2024) (Barrett, J.) (finding it unnecessary
to resolve this issue in context of COVID-19 safety protocols).
Secretary Austin does not dispute that Mr. Stein meets the final two requirements to satisfy
his prima facie burden under Title VII. Mr. Stein alleges that he requested an accommodation to
work from home and his employer denied that accommodation. (Compl., PageID 21, 26–28.)
When he refused adhere to the safety protocols for unvaccinated employees—submitting to testing
or wear a mask—he was disciplined and charged with AWOL, resulting in lost wages. (Id.)
Thus, as the Sturgill court explained, given the procedural posture and specific facts
alleged, “we need not define the outer limits of Title VII’s scope on this point.” Rather, “we leave
it to the parties to factually probe [Mr. Stein’s] claims and [Secretary Austin’s] actions during
discovery” and expect that these facts will be tested on summary judgment. Morrison v. E.W.

Scripps Co., No. 1:23-cv-00279, 2024 U.S. Dist. LEXIS 215147, at *12 (S.D. Ohio Nov. 26, 2024)
(Barrett, J.) (quoting Sturgill, 114 F.4th at 810–11.) Mr. Stein’s claim for failure to accommodate
is sufficiently pled to survive the Motion to Dismiss.
ii. Disparate Treatment Claim
A disparate impact religious discrimination claim requires somewhat different allegations.
Plaintiff must plead: (1) that he was a member of a protected class, (2) that he experienced an
adverse employment action, (3) that he was qualified for the position, and (4) that he was replaced
by a person outside the protected class or that he was treated differently than similarly situated
employees. See Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008).
Secretary Austin challenges factors (2) and (4). (Austin Mot., PageID 140–43.) The Court

is not persuaded by Secretary Austin’s argument that Mr. Stein “fail[ed] to plausibly allege that
any purported adverse employment action resulted from [his] religious beliefs.” (Id. PageID 142.)
As discussed above, although Mr. Stein was not terminated for remaining unvaccinated, he was
subject to the masking and testing protocol to which he claimed a religious objection. (Compl.,
PageID 12.) Because he refused to comply with that requirement, he alleges that he was “charged
with AWOL” and lost wages. (Id. PageID 12.) He plainly suffered an adverse employment action.
Secretary Austin’s argument that Mr. Stein failed to identify a similarly situated employee
has more merit. To show that another employee was “similarly situated,” Mr. Stein must allege
that there was a non-protected employee who was treated more favorably and is “similar to the
plaintiff ‘in all relevant respects.’” Stewart v. Esper, 815 F. App’x 8, 17 (6th Cir. 2020) (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998) (emphasis in
original)). “Generalized and vague allegations that another employee was treated better” are
insufficient. Stewart, 815 F. App’x at 17.

Mr. Stein does not allege that he was treated differently than similarly situated employees.
He does not allege that an employee with similar qualifications who refused the vaccine received
his preferred accommodation to work from home. In fact, he only mentions similarly situated
employees in his prayer for relief when asking the Court to order the DOD to provide him and
other similarly situated employees with a reasonable accommodation. (Compl., PageID 139.)
Without a comparator, even under the liberal pleading standard for pro se litigants, the Court
cannot draw a reasonable inference that Mr. Stein was discriminated against due to his religion.
Accordingly, Mr. Stein has failed to state a claim on which relief may be granted, and his claim
must be dismissed.
iii. Hostile Work Environment Claim

Mr. Stein also raises a hostile work environment claim. To bring a claim under Title VII
for a hostile work environment, Mr. Stein must show that: (1) he was a member of a protected
class; (2) he was subject to unwelcome harassment; (3) that harassment was based on his protected-
class status; (4) the harassment created a hostile work environment; and (5) employer liability.
Wehrly v. Allstate Ins., No. 23-5736, 2024 U.S. App. LEXIS 7378, at *8 (6th Cir. Mar. 27, 2024)
(citation omitted). “A hostile work environment exists when the ‘workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’” Id. (quoting
Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 309 (6th Cir. 2016)). The conduct must be so severe
or pervasive that it “alters the conditions of the victim’s employment” and creates “an environment
that a reasonable person would find hostile or abusive.” Id. (quoting Harris v. Forklift Sys., 510
U.S. 17, 21 (1993)).
Mr. Stein offers two allegations to support his hostile work environment claim:

• Failure to adhere to current policies and procedures that grant Religious
Reasonable Accommodations to religious people seeking vaccine, testing and
masking exemptions create an exclusionary hostile working environment.
• Failure to properly investigate and provide documentation to religious
discrimination complaints of religious people allows for the hostile environment
to continue and create an exclusionary and hostile environment culture against
religious persons.

(Compl., PageID 36.)
Secretary Austin argues that Mr. Stein has not asserted harassing conduct so severe and
pervasive to create a hostile work environment. (Austin Mot., PageID 146–48.) This Court agrees.
Besides asserting that he was charged with AWOL, Mr. Stein does not allege that he was harassed,
ridiculed, or intimidated at all, let alone because of his religion. His employer’s requests that he
wear facial protection and submit to weekly COVID-19 testing, if he chose to remain
unvaccinated, is not the kind of behavior that this cause of action was designed to guard against.
Requiring unvaccinated employees to mask, social distance, or submit to testing does not create a
workplace that a reasonable person would find hostile or abusive. See, e.g., Leake v. Raytheon
Techs. Corp., No. CV-22-00436-TUC-RM, 2023 U.S. Dist. LEXIS 32177, at *16 (D. Ariz. Feb.
27, 2023) (dismissing plaintiff’s claims for hostile work environment based on his employer’s
requirement that unvaccinated employees wear masks). As a result, Mr. Stein fails to meet his
pleading standard, and his hostile work environment claim must be dismissed.
C. Mr. Stein’s Religious Freedom Restoration Act claim is dismissed.
Mr. Stein alleges that Defendants violated his rights under the Religious Freedom
Restoration Act (“RFRA”). Both Defendants move to dismiss his RFRA claim under Rule 12(b)(1)
of the Federal Rules of Civil Procedure, arguing that the Court lacks jurisdiction to hear this case.

(Austin Mot., PageID 148; McGuire Mot., PageID 109–20.) Secretary Austin argues that Mr.
Stein’s RFRA claim is barred by the doctrine of sovereign immunity, while Defendant McGuire
argues that he is entitled to qualified immunity. (Id.)
i. Secretary Austin is entitled to sovereign immunity.
Sovereign immunity shields the federal government from suit, absent an explicit statutory
waiver. Gaetano v. United States, 994 F.3d 501, 506 (6th Cir. 2021) (describing sovereign
immunity as a jurisdictional bar). This immunity extends to federal officials sued in their official
capacities. Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013). Congress may
only waive sovereign immunity through clear statutory language. Dept. of Agric. Rural Dev. Rural
Hous. Serv. v. Kirtz, 601 U.S. 42, 49 (2024). The Supreme Court recognized that RFRA waives

sovereign immunity in claims for damages against officials in their individual capacities. Tanzin v.
Tanvir, 592 U.S. 43, 52 (2020). But officials sued for monetary damages in their official capacities
are entitled to sovereign immunity. Id.
Mr. Stein brings his claim against Secretary Austin in his official capacity. (See Compl.,
PageID 7, 17.) He seeks both “monetary and non-monetary relief.” (Id. PageID 6.) As the Court
discussed above, his claims for “non-monetary” prospective injunctive relief are moot, and thus
dismissed, leaving only his claim for damages. Mr. Stein has not provided authority that sovereign
immunity was waived for monetary claims against officials in their official capacity. Secretary
Austin is therefore entitled to sovereign immunity, and Mr. Stein’s RFRA claim is dismissed.
ii. Defendant McGuire is entitled to qualified immunity.
Having dismissed Mr. Stein’s RFRA claim against Secretary Austin, the Court now turns
to Mr. Stein’s RFRA claim against Defendant McGuire in his individual capacity. Congress
authorized individual-capacity suits against government officials under RFRA. See 42 U.S.C.

§ 2000bb et seq.; see also Tanzin, 592 U.S. at 47. But Defendant McGuire reasons that qualified
immunity shields him from liability here. (McGuire Mot., PageID 112–17.) He also argues that
Mr. Stein fails to plead sufficient factual allegations to state a plausible claim for relief. (Id.)
Because the Court finds that Defendant McGuire is entitled to qualified immunity, it need not
address sufficiency of Mr. Stein’s factual allegations.
Qualified immunity “protects government officials from liability for civil damages insofar
as their conduct does not violate a clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks omitted). Since qualified immunity is an immunity from suit, not just a defense
to liability, whether a defendant is entitled to qualified immunity should be resolved at the earliest

possible stage. Bell v. City of Southfield, 37 F.4th 362, 364 (6th Cir. 2022) (immunizing the
defendants from the costs and burdens of a lawsuit in the first place). A defendant’s “conduct
violates clearly established law when, at the time of the challenged conduct, the contours of a right
are sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks
omitted).
Defendant McGuire cannot be held liable unless Mr. Stein can point to “clearly established
law” that would have put Defendant McGuire on notice that denying his request to work remotely
imposed a substantial burden on his exercise of religion and violated the RFRA. Mr. Stein points
to RFRA and Title VII to argue that Defendant McGuire violated a clearly established right and is
not entitled to qualified immunity. (McGuire Opp., PageID 208–09.) But the rights defined in both
statutes are “far too abstract to rebut an assertion of qualified immunity.” Dixon v. Yellen, No. 22-
cv-3496 (APM), 2024 U.S. Dist. LEXIS 77051, at *13 (D.D.C. Mar. 21, 2024) (concluding

references to RFRA and Title VII were insufficient for qualified immunity). The Supreme Court
has “repeatedly stressed that courts must not define clearly established law at a high level of
generality” because doing so “avoids the crucial question of whether the official acted reasonably
in the particular circumstances that he or she faced.” District of Columbia v. Wesby, 583 U.S. 48,
63–64 (2018) (internal quotation marks omitted). Simply pointing to federal statutes “is of little
help in determining whether the violative nature of particular conduct is clearly established.” See
al-Kidd, 563 U.S. at 742.
Mr. Stein also cites Huri v. Off. of the Chief Judge of the Circuit Court of Cook Cty., 804
F.3d 826, 835 (7th Cir. 2015). There, the Seventh Circuit reversed the district court’s order
dismissing the plaintiff’s Title VII claims based on qualified immunity. Id. The Court explained

that the plaintiff had adequately pled a claim of religious discrimination where she was subject to
“screaming, prayer circles, social shunning, implicit criticism of non-Christians, and uniquely bad
treatment of [the plaintiff] and her daughter.” Id. at 833–34 (describing the conduct as a “litany of
malfeasance”). Because this conduct amounted to an obvious violation of Title VII, the Seventh
Circuit found the defendants were not entitled to qualified immunity. Id.
Mr. Stein has pled no such “litany of malfeasance.” Huri did not involve claims under
RFRA or pertain to COVID-19 or analogous vaccine requirements. Thus, Huri is also not
instructive as to whether Defendant McGuire acted reasonably in the circumstances he faced. Nor
is the Seventh Circuit’s decision binding on this Court. To be clearly established, plaintiffs must
point to “cases of controlling authority in their jurisdiction at the time of incident” or “a consensus
of cases of persuasive authority such that a reasonable officer could not have believed that his
actions were lawful.” See Wilson v. Layne, 526 U.S. 603, 617 (1999) (emphasis added).
Mr. Stein points to “no such law that would have put [Defendant McGuire] on notice that

enforcing a vaccine mandate or a testing requirement, or rejecting [his] telework application,
violated the RFRA. Thus, qualified immunity shields [Defendant McGuire] from liability.” Dixon,
2024 U.S. Dist. LEXIS 77051, at *15. Mr. Stein’s claims against Defendant McGuire are
dismissed.
D. Mr. Stein’s intentional infliction of emotional distress claim is preempted by Title
VII.
Mr. Stein also brings a state-law claim for intentional infliction of emotional distress
(“IIED”). (Compl., PageID 38–39.) Generally, Title VII of the Civil Rights Acts of 1964 provides
the exclusive judicial remedy for claims of discrimination in federal employment. 42 U.S.C.
§ 2000e-16; Brown v. GSA, 425 U.S. 820, 835 (1976); James v. Rumsfeld, 580 F.2d 224, 225–26
(6th Cir. 1978). But some courts have “distinguished between discrimination claims and other
claims which, although arising out of the same facts and circumstances, seek to remedy injuries
other than workplace discrimination.” Wallace v. Henderson, 138 F. Supp. 2d 980, 984 (S.D. Ohio
2000) (Rice, J.). To the extent that a state-law claim of intentional infliction of emotional distress
is identical to a plaintiff’s claim of discrimination under Title VII, a plaintiff must proceed under
Title VII. Barnhouse v. Brennan, No. 2:17-cv-879, 2019 U.S. Dist. LEXIS 52450, at *10 (S.D.

Ohio Mar. 28, 2019) (Marbley, J.).
The facts that support Mr. Stein’s state law IIED claim are identical to his Title VII claims.
He alleges that Defendants’ failure to grant his requested accommodation caused him to “face
disciplinary actions, including and up to removal.” (Compl., PageID 38–39.) He claims that “[a]ny
reasonable person understands that having one’s livelihood at stake causes significant distress.”
(Id.) He describes Defendants conduct as “extreme” and “outrageous” and alleges that Defendants’
“discriminatory actions” caused him to suffer damages. (Id. PageID 39.) Mr. Stein does not seek
redress for a “highly personal injury beyond discrimination” and thus his IIED claim is not

distinguishable from his discrimination claim under Title VII. Barnhouse, 2019 U.S. Dist. LEXIS
52450, at *10 (quoting Wallace, 138 F. Supp. 2d at 986). Mr. Stein’s IIED claim is preempted by
Title VII and must be dismissed.
IV. CONCLUSION
For the reasons above, the Court GRANTS IN PART and DENIES IN PART Secretary
Austin’s Motion to Dismiss. (ECF No. 9) and GRANTS Defendant McGuire’s Motion (ECF No.
8). Mr. Stein’s claim for prospective injunctive relief is moot and thus must be dismissed. His Title
VII religious discrimination disparate treatment and hostile work environment claims are
dismissed for failing to state a claim upon which relief may be granted. His RFRA claims are
dismissed under Rule 12(b)(1) because Defendant McGuire and Secretary Austin are entitled to

qualified immunity and sovereign immunity, respectively. Last, his state-law intentional infliction
of emotional distress claim is preempted by Title VII and dismissed.
Mr. Stein’s claims against Defendant McGuire are dismissed and the Clerk is directed to
terminate Defendant McGuire as a Defendant. Mr. Stein may proceed only on his Title VII failure
to accommodate claim against Secretary Austin.
This case remains open.
IT IS SO ORDERED.

2/14/2025 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10800786. Public record. Not legal advice.