The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
LINDA RISER; LORNA MULKEY; Civ. No. 6:23-cv-1720-AA
BRENDA TIMMS; BARBARA RUNK;
GRETA WILLEMS; MICHELLE WELLS, OPINION & ORDER
Plaintiffs,
vs.
ST. CHARLES HEALTH SYSTEM, INC.,
Defendant.
_______________________________________
AIKEN, District Judge:
Plaintiffs Linda Riser, Lorna Mulkey, Brenda Timms, Barbara Runk, Greta
Willems, and Michelle Wells return to the Court with a First Amended Complaint
(“FAC”) in their religious discrimination case against former employer St. Charles
Health System under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and under ORS 659A.030. See FAC, ECF No. 13. Defendant moves to strike
the FAC or, alternatively, to dismiss the claims. ECF No. 16. For the reasons stated
below, Defendant’s Motion, ECF No. 16, is GRANTED. The only claims that remain
before the Court are the Title VII failure to accommodate claims of Plaintiffs Riser,
Mulkey, Runk, and Wells.
BACKGROUND
In the summer of 2021, during the COVID-19 pandemic, Defendant “imposed
a vaccine mandate to its employees but, consistent with law, permitted employees to
apply for religious or medical exceptions to the vaccine.” FAC ¶ 3; Former OAR 333-
019-1010 (Aug. 5, 2021). Plaintiffs were employees at one of Defendant’s healthcare
facilities who each sought and obtained a religious exemption to the vaccine. FAC ¶¶
6, 11, 15, 19, 23, 26. They were each placed on unpaid leave and later terminated.
Id.
Plaintiffs brought Title VII and state claims against Defendant for failure to
accommodate their religious beliefs. See FAC. In its prior Order, the Court dismissed
with prejudice the untimely state claims and the deficient claims of Plaintiffs Timms
and Willems. Opinion & Order (“O&O”) at 6, 12, 16, ECF No. 12. The remaining
Plaintiffs Riser, Mulkey, Runk, and Wells were granted leave to amend their Title
VII hostile work environment claims. Id. at 16. Plaintiffs return to the Court with a
FAC that repleads the dismissed state claims, FAC ¶¶ 32–38, and Timms’ and
Willems’ dismissed claims, id. at ¶¶ 14–17, 21–24, and adds five new Title VII claims,
for which Plaintiffs did not seek leave to amend, id. at ¶ 44.
LEGAL STANDARD
Under Rule 12(f), a court may strike pleadings that include “any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “To be
impertinent or immaterial, the allegations must not have any possible bearing on the
controversy.” City of Tillamook v. Kennedy Jenks Consultants, Inc., 3:18-cv-02054-
BR, 2019 WL 1639930, at *2 (D. Or. April 16, 2019). The purpose of a Rule 12(f)
motion is to avoid spending time and money litigating spurious issues. Whittlestone,
Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).
A motion to dismiss under Rule 12(b)(6) tests the claims’ sufficiency. Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Fed. R. Civ. P. 12(b)(6). When evaluating
a claim’s sufficiency, a court must accept a plaintiff’s allegations of fact as true and
construe them in the light most favorable to the plaintiff. Wilson v. Hewlett-
Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A plaintiff’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “[A] plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation” of the action’s elements. Id. (cleaned up). A court need not
accept as true legal conclusion couched as factual allegation. Id.
DISCUSSION
Defendant moves to strike or dismiss the FAC on the grounds that Plaintiffs
(1) failed to comply with the Court’s Order by including claims and parties already
dismissed, Def Mot. at 4–5; (2) failed to comply with the Court’s Order by exceeding
the scope of prior leave to amend by introducing new Title VII claims, id. at 9–10; and
(3) failed to state a Title VII hostile work environment claim, id. at 6. Finally,
Defendant requests reasonable costs and attorney fees incurred in filing its Motion.
Id. at 11.
I. Dismissed Claims and Parties
The FAC repleads dismissed claims and parties. Defendant moves to strike
the repleaded claims and parties because the pleadings “fail to comply with applicable
court orders,” id. at 4, and the claims are “redundant” and “immaterial,” id. at 5.
Plaintiffs offer no response. See Pl. Resp., ECF No. 20.
Plaintiffs replead the untimely state claims that the Court had dismissed with
prejudice in its prior Order. FAC ¶¶ 32–38; O&O at 6, 16. And Timms and Willems
replead their Title VII claims that the Court had also dismissed with prejudice in its
prior Order. FAC ¶¶ 14–17, 21–24; O&O at 12, 16. In that Order, the Court
determined that Timms and Willems failed to state a religious basis for their
discrimination claims and thus could not invoke Title VII protections. O&O at 12.
The Court also determined that Timms and Willems could not cure those deficiencies
because the only facts they could plead were the already-pleaded facts from their
employee vaccination exemption request forms. Id. at 13.
Because the Court had already dismissed these claims and parties, they are
immaterial and impertinent to ongoing litigation. See Pioquinto v. Scheldt, No. 3:18-
cv-00412-JR, 2021 WL 5986909, at *1 (D. Or. Oct. 25, 2021) (striking repleaded but
previously resolved claims as immaterial and impertinent); see also SC Innovations,
Inc. v. Uber Tech., Inc., No. 18-cv-07440-JCS, 2020 WL 2097611, at *11 (N.D. Cal.
May 1, 2020) (striking repleaded claims that had been dismissed with prejudice)
(citing Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) and noting that the
Ninth Circuit does not require claims to be repleaded in a later amended complaint
to preserve them for appeal).
Accordingly, the Court strikes from the FAC all state law claims and Timms’
and Willems’ repleaded Title VII claims as immaterial and impertinent.
II. New Title VII Claims
The FAC adds five new Title VII claims. Defendant moves to strike or dismiss
the new Title VII claims because they “exceeded the Court’s Order, and Plaintiffs
failed to seek leave of Court for additional amendment as required by FRCP 15.” Def.
Mot. at 2. Plaintiffs respond with a single sentence, asserting that they “have a sound
basis to add additional theories of relief to the Amended Complaint.” Pl. Resp. at 2.
But they do not explain what that “sound basis” is.
In direct contravention of the Court’s Order granting limited leave to amend,
Plaintiffs Riser, Mulkey, Runk, and Wells allege five new Title VII claims for the first
time: “wrongful termination disparate treatment,” and “wrongful termination
disparate impact,” “wrongful reduction in pay,” “retaliation,” and “pattern or practice
discrimination.” FAC ¶ 44. The new claims were added without first seeking the
Court’s leave as required by Rule 15. See Fed. R. Civ. P. 15(a)(2) (“[A] party may
amend its pleading only with the opposing party's written consent or the court's
leave.”).
Plaintiffs’ FAC exceeds the scope of this Court’s Order, which reads, “Plaintiffs
shall have thirty day in which to file an amended complaint repleading their claim[s]
for a hostile work environment.” O&O at 15. This language permits neither the
addition of new claims nor the addition of new parties. When a party exceeds the
scope of a court’s leave to amend, the claims may be dismissed under Rule 12(b)(6)
for failure to state a claim. See Boyack v. Regis Corp., 812 Fed. Appx. 428, 431 (9th
Cir. 2020) (new causes of action pleaded outside scope of leave to amend are properly
dismissed under Rule 12(b)(6)); DeLeon v. Wells Fargo Bank, N.A., No. 10–CV–
01390–LHK, 2010 WL 4285006, at *3 (N.D. Cal. Oct. 22, 2010) (“[W]here leave to
amend is given to cure deficiencies in certain specified claims, courts have agreed
that new claims alleged for the first time in the amended pleading should be
dismissed or stricken.”); Strifling v. Twitter Inc., No. 22-cv-07739-JST, 2024 WL
54976, at *1 (N.D. Cal. Jan 4, 2024) (“[C]ourts . . . consistently strike or dismiss
parties and claims that exceed the scope of an order granting leave to amend.”)
(collecting cases).
Because the five new Title VII claims exceed the scope of the leave to amend,
the Court dismisses those claims under Rule 12(b)(6).
III. Hostile Work Environment Claims
Plaintiffs allege that “[St Charles’] staff and employees created a hostile work
environment for the Plaintiffs under Title VII by making threatening and hostile
statements which made Plaintiffs feel intimidated, harassed, and humiliated on
account of their sincere religious beliefs in opposition to the COVID-19 vaccine.”
FAC ¶ 44.
Under Title VII, it is unlawful for an employer to “discriminate against any
individual with respect to . . . conditions, or privileges of employment[] because of
such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). A Title VII hostile work
environment claim must allege that (1) a plaintiff was “subjected to verbal or physical
conduct of a [religious] nature; (2) that the conduct was unwelcome; and (3) that the
conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's
employment and create an abusive work environment.” Mills v. PeaceHealth, 31
F. Supp. 3d 1099, 1115 (D. Or. 2014) (brackets in Mills) (quoting Vasquez v. Cnty. of
Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003)).
Defendant asserts that Plaintiffs fail to state a hostile work environment claim
because Plaintiffs fail to “address [the] fatal flaws,” that the Court had identified in
its prior opinion—the missing pleading elements: “severe and pervasive” conduct and
“because of religion.” Def. Mot. at 6. Defendant also asserts that “[n]one of [the]
amended allegations are specific to any of the Plaintiffs still parties to this case
(Riser, Mulkey, Runk, and Wells).” Id. at 8.
The Court agrees. First, Plaintiffs provide no facts to support that “[St
Charles’] staff and employees . . . [made] threatening and hostile statements[.]” FAC
¶ 44. For example, Plaintiffs do not allege any specific occurrences of such statements
or examples of such statements. Without such facts, Plaintiff’s allegations are
conclusory. Second, Plaintiffs allege that “St. Charles handed out yellow badge
stickers for employees to wear, indicating that they were vaccinated,” thus
“immediately expos[ing]” any “employee without a yellow badge sticker . . . as
unvaccinated.” Id. They assert that Defendant’s badge policy created a hostile work
environment “directed primarily towards the most devout religious Christians in
their hospital” because 69% of unbadged (i.e., unvaccinated) employees had received
an exemption on religious grounds. Id.
Plaintiffs’ allegations suggest that if any humiliation or harassment occurred
because of the badge policy, it was connected to Plaintiffs’ vaccination status, not
their religious status. Even assuming that any badge-related ‘verbal or physical
conduct’ occurred and rose to the level of being ‘sufficiently severe or pervasive’ to
create an ‘abusive work environment’—and Plaintiffs provide no facts to support that
it did—at least 31% of the unbadged (i.e., unvaccinated) employees had received a
vaccine exemption on non-religious grounds. Indeed, Plaintiffs allege that they were
”humiliated based on vaccination status.” Id. at ¶ 44. But Plaintiffs cannot invoke
Title VII protections for being unvaccinated because vaccination status, unlike
religious status, is not a protected class under Title VII. See Brown v. NW
Permanente, P.C., No. 3:22-cv-986-SI, 2023 WL 6147178, at *6 (D. Or. Sept. 20, 2023)
(“To remain unvaccinated may be a secular choice, and unvaccinated status alone
does not establish any connotation of religious affiliation. Without some connection
to their religion, [p]laintiffs fail to allege that they faced verbal or physical conduct of
a religious nature.”).
Because Plaintiffs fail to allege with specificity that they faced severe or
pervasive verbal or physical conduct aimed at their religious status, their claim fails.
IV. Attorneys’ Fees
Citing the fact that Plaintiffs defied the Court’s Order, violated multiple rules,
and failed to respond to Defendant’s motion, Defendant requests “leave to file a
petition for its reasonable attorney fees and costs incurred in having to file [its]
motion to strike.” Def. Mot. at 13.
Under the American Rule, the prevailing party “is ordinarily not entitled to
collect reasonable attorneys’ fees from the loser.” Alyeska Pipeline Serv. Co. v.
Wilderness Soc., 421 U.S. 240, 247 (1975). But “a court may assess attorneys' fees for
the ‘willful disobedience of a court order’ . . . or when the losing party has ‘acted in
bad faith, vexatiously, wantonly, or for oppressive reasons[.]’” Id. at 258–59. An
award of bad faith fees “is punitive and . . . can be imposed only in exceptional cases[.]”
Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir. 1982). It serves the
dual purpose of “vindicating judicial authority” and “making the prevailing party
whole for expenses caused by his opponent's obstinacy.” Chambers v. NASCO, Inc.,
501 U.S. 32, 46 (1991) (internal citations and alterations omitted).
To award bad faith fees, a court must make a specific finding of bad faith.
Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001). This is a high bar. Primus
Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997). Bad-faith conduct
encompasses a range of “willful improper conduct,” including actions that “delay[] or
disrupt[] litigation” or “willful disobedience of a court order.” Fink v. Gomez, 239 F.3d
989, 992–93 (9th Cir. 2001). Inadvertent or negligent misconduct does not rise to the
level of bad faith. Id. at 993. An improper purpose or intent is required. Id. at 992.
To determine whether bad faith exists a court may consider the “totality of the
circumstances.” Rodriguez v. U.S., 542 F.3d 704, 712 (9th Cir. 2008).
Here, the Court finds that Plaintiffs have acted in bad faith. Plaintiffs’ FAC
repleads dismissed Title VII and state claims and parties, and, in defiance of the
Court’s Order granting limited leave to amend, Plaintiffs allege five new claims
without seeking further leave as required by Rule 15. Plaintiffs also violated Local
Rule 15b by failing to file a red-lined copy of the FAC.
Before filing its Motion, Defendant conferred with Plaintiffs and advised them
that their FAC improperly exceeded the scope of leave to amend and that they
violated Rule 15 and the Local Rule. Decl. Ryan Gibson, Ex. 1, ECF No. 17. Despite
this warning, Plaintiffs failed to correct course. Defendant asserts that its “Motion
could have been averted if Plaintiffs’ counsel had simply agreed to voluntarily amend
the FAC to comply with the Court’s Order.” Def. Reply at 7, ECF No. 21.
In addition to the above, Plaintiffs failed to file a substantive response to
Defendant’s Motion. Plaintiffs instead produced a single sentence: “Plaintiffs have a
sound basis to add additional theories of relief to the Amended Complaint,” which the
Court considers a non-response. See Pl. Resp. at 2. Plaintiffs created an unnecessary
burden, and disrupted and delayed litigation, by repleading parties and claims and
improperly adding new claims. In its Motion, Defendant diligently addressed each
party and claim, including the immaterial and improper ones. Yet Plaintiffs failed to
respond.
For the above reasons, the Court finds that Plaintiffs acted with improper
purpose and intent. Accordingly, the Court grants Defendant leave to file a petition
for reasonable attorneys’ fees and costs incurred in filing its motion.
V. Request for Further Leave
Though Plaintiffs failed to substantively respond to Defendant’s Motion, they
did request leave “to amend their Complaint nunc pro tunc to allow the additional
new theories to be litigated.” Pl. Resp. at 2. And they requested “leave to file a Motion
to Reconsider the Court’s dismissal of Plaintiffs Willems[’] and Timms[’] Title VII
accommodation claims.” Id.
A. Leave to Amend to Add New Claims
Once a court has issued a pretrial scheduling order that establishes a timetable
for amending pleadings, Rule 16 controls further motions for leave to amend.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Rule
16 provides that “a schedule may be modified “only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). “Unlike Rule 15(a)’s liberal amendment policy[,]. . .
Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
seeking the amendment.” Johnson, 975 F.2d at 609. “If that party was not diligent,
the inquiry should end.” Id. “[C]arelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.” Id.
Plaintiffs’ request for leave to amend “to allow the additional new theories to
be litigated” is denied because Plaintiffs do not provide good cause to modify the
Court’s pre-trial scheduling order. In fact, Plaintiffs provide no argument for why
the Court should grant such leave. The Court gave Plaintiffs thirty days to amend
their Complaint. If Plaintiffs intended to add new claims, they could have sought
further leave at any time during that thirty days. The Court finds that Plaintiffs
were not diligent and, accordingly, denies leave to add the new Title VII claims.
B. Leave to Reconsider the Judgment
Plaintiffs also seek leave to file a Motion to Reconsider the Court’s prior
12(b)(6) dismissal of Timms’ and Willems’ Title VII failure to accommodate claims.
Those claims were dismissed with prejudice because the Court concluded that Timms
and Willems failed to plead a religious basis for their claims—deficiencies that could
not be cured. See O&O at 12–13.
Under Rule 59(e), a party may move “to alter or amend a judgment . . . no later
than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). A motion to alter
or amend a judgment under Rule 59(e) is an “extraordinary remedy, to be used
sparingly in the interests of finality and conservation of judicial resources.” Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation
marks and citation omitted). A district court, in its discretion, may grant a Rule 59(e)
motion if it “is presented with newly discovered evidence, committed clear error, or if
there is an intervening change in the controlling law.” McDowell v. Calderon, 197
F.3d 1253, 1255 (9th Cir. 1999) (en banc) (internal quotation marks and citation
omitted, alteration normalized).
The judgment dismissing Timms’ and Willems’ Title VII claims was entered on
June 6, 2024. Plaintiffs requested leave to file a Rule 59(e) motion on August 30,
2024—85 days after Timms’ and Willems’ judgment was entered and well beyond the
28 days allowed by Rule 59(e). Because Plaintiffs’ request is untimely, it is denied.
C. Leave to Amend the Hostile Work Environment Claims
Riser, Mulkey, Runk, and Wells do not request leave to amend their hostile
work environment claims. Generally, Rule 15 “advises the court that leave shall be
freely given when justice so requires.” Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation omitted); Fed.
R. Civ. P. 15.
But “[d]ismissal without leave to amend is proper . . . if it is clear . . . that the
complaint could not be saved by any amendment.” McKesson HBOC, Inc. v. New York
State Common Ret. Fund, Inc., 339 F.3d 1087, 1090 (9th Cir.2003) (internal quotation
marks and citations omitted). “[A] proposed amendment is futile only if no set of facts
can be proved under the amendment to the pleadings that would constitute a valid
and sufficient claim or defense.” Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1393
(9th Cir. 1997) (alteration in original) (citation omitted). “Futility of amendment can,
by itself, justify the denial of a motion for leave to amend.” United States ex rel. Lee
v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).
Here, Riser, Mulkey, Runk, and Wells have twice pleaded their hostile work
environment claims. Despite specific instructions as to how to cure their pleading
flaws, Plaintiffs still fail to address the pleading elements and to provide facts specific
to each plaintiff. Further, because Plaintiffs failed to respond to Defendant’s Motion,
they present no argument that they could allege additional facts to support their
claims. Accordingly, the Court dismisses the Title VII hostile work environment
claims with prejudice.
CONCLUSION
For the reasons explained, the Court GRANTS Defendant’s Motion to Strike
and, alternatively, its Motion to Dismiss, ECF No. 16, as set forth below:
(1) The Court STRIKES the FAC’s state law claims under ORS 659A.030.
(2) The Court STRIKES the FAC’s Title VII claims as to Plaintiffs Brenda
Timms and Greta Willems.
(3) The Court DISMISSES with prejudice the FAC’s five new Title VII claims.
(4) The Court DISMISSES with prejudice the Title VII hostile work
environment claims of Plaintiffs Linda Riser, Lorna Mulkey, Barbara Runk,
and Michelle Wells.
(5) The Court GRANTS Defendant leave to file a petition for reasonable costs
and attorneys’ fees incurred in filing its Motion.
Plaintiff has 14 days from the date of this Order to file a conforming complaint
that includes only the remaining Title VII failure to accommodate claims of Plaintiffs
Riser, Mulkey, Runk, and Wells. Defendant has 14 days from the date of the filing of
the conforming complaint to file an Answer as to the remaining Title VII failure to
accommodate claims of Plaintiffs Riser, Mulkey, Runk, and Wells.
It is so ORDERED and DATED this __7_th___ day of March 2025.
/s/Ann Aiken
ANN AIKEN
United States District Judge