# Trusov v. Oregon Health & Science University

> District Court, D. Oregon · August 26, 2025

URL: https://www.frixlaw.com/law-library/cases/11127790

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 26, 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/11127790

## How later opinions describe it (automated extraction)

- stating that when allegations are not in the complaint, “raising such claim in a summary judgment motion is insufficient to present the claim to the district court”
- describing the undue hardship inquiry as a “context-specific standard”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

OLGA TRUSOV, Case No. 3:23-cv-77-SI

Plaintiff, OPINION AND ORDER

v.

OREGON HEALTH & SCIENCE
UNIVERSITY,

Defendant.

Brent H. Smith, BAUM SMITH LLC, PO Box 967, 808 Adams Avenue, La Grande, OR 97850.
Of Attorneys for Plaintiff.

Thomas R. Johnson, Brenda K. Baumgart, Alex Van Rysselberghe, and Alexandra Choi Giza,
STOEL RIVES LLP, 760 SW Ninth Avenue, Suite 3000, Portland, OR 97205. Of Attorneys
for Defendant.

Michael H. Simon, District Judge.

Plaintiff Olga Trusov brings this lawsuit against her former employer Oregon Health &
Science University (“OHSU”). Trusov worked for OHSU as a Registered Nurse in the Neonatal
Intensive Care Unit (“NICU”) from August 2013 until OHSU terminated her employment on
December 6, 2021. Trusov failed to comply with OHSU’s COVID-19 vaccination policy, and
OHSU denied her request for a religious accommodation that would have exempted her from
OHSU’s vaccination requirement. In her Second Amended Complaint (“SAC”) (ECF 25),
Trusov alleges that OHSU violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
5, by discriminating against her because of her religion. OHSU moves for summary judgment,
and Trusov cross-moves for partial summary judgment.1 The Court has heard oral argument on
the motions. For the reasons explained below, the Court grants OHSU’s motion and denies

Trusov’s cross-motion.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden,
“the moving party must either produce evidence negating an essential element of the nonmoving
party’s claim or defense or show that the nonmoving party does not have enough evidence of an
essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.
Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving
party need only point out ‘that there is an absence of evidence to support the nonmoving party’s
case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of
proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of
fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving

1 Trusov combines her response to OHSU’s motion for summary judgment with her cross-
motion. Under Local Rule 7-1(b), however, “[m]otions may not be combined with any response,
reply, or other pleading.” The Court nevertheless considers Trusov’s cross-motion on the merits.
party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986)).
The Court must view the evidence in the light most favorable to the non-movant and
draw all reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters,

Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla
of evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252,
255. “Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586
(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“When cross-motions for summary judgment are at issue, [courts] evaluate ‘each motion
separately, giving the nonmoving party in each instance the benefit of all reasonable

inferences.’” Zabriskie v. Fed. Nat’l Mortg. Ass’n, 940 F.3d 1022, 1026 (9th Cir. 2019) (quoting
ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)); see also Pintos v.
Pac. Creditors Ass’n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions for summary judgment
are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must
consider each party’s evidence, regardless under which motion the evidence is offered.” L. V.
Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears
the burden of proof at trial, the moving party need only prove that there is an absence of
evidence to support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376,
387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific
facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.”
Id. The Supreme Court has directed that in such a situation, the non-moving party must do more
than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586.
BACKGROUND
A. COVID-19 and Vaccine Mandates for Healthcare Workers
On August 13, 2021, amid the surge in COVID-19 cases, the Governor of Oregon issued

Executive Order 21-29 (the “EO”). In that EO, the Governor explained that the 2021 summer
surge in COVID-19 infections “is imperiling the state health system’s ability to manage not just
COVID-19 patients, but also those who require specialized medical care after car accidents, heart
attacks, and other medical emergencies” and that “employer vaccination requirements have
become an important tool” for managing the surge. The EO required that state executive-branch
employees be “fully vaccinated” against COVID-19 by the later of October 18, 2021, or six
weeks after the date that the Food and Drug Administration (“FDA”) approves a COVID-19
vaccine. The EO allowed for exceptions for individuals unable to be vaccinated due to disability,
a qualifying medical condition, or a sincerely held religious belief.
After the FDA approved the COVID-19 vaccine on August 23, 2021, the Oregon Health

Authority (“OHA”) adopted similar vaccination rules. One of those rules, then-codified at
Oregon Administrative Rule (“OAR”) 333-019-1010, is known as the “Healthcare Order.”2
Originally adopted on August 25, 2021, and then modified on September 1, 2021, the Healthcare
Order explained, in relevant part:
Healthcare providers and healthcare staff have contact with
multiple patients over the course of a typical day and week,
including providers that provide care for people in their homes.
Individuals cared for in these settings are more likely than the

2 The OHA suspended OAR 333-019-1010 in mid-2023 and repealed it effective June 30, 2023.
general public to have conditions that put them at risk for
complications due to COVID-19. COVID-19 variants are running
through the state’s unvaccinated population and causing an
increase in breakthrough cases for those who are fully vaccinated.
This rule is necessary to help control COVID-19, protect patients,
and to protect the state’s healthcare workforce.
OAR 333-019-1010(1) (effective Sept. 1, 2021). Based on these concerns, the Healthcare Order
provided that after October 18, 2021, “A health care provider or healthcare staff person may not
work, learn, study, assist, observe, or volunteer in a healthcare setting unless they are fully
vaccinated or have provided documentation of a medical or religious exception.” OAR 333-019-
1010(3)(a) (Sept. 1, 2021).3

3 The Healthcare Order defined “healthcare providers and healthcare staff” as:
[I]ndividuals, paid and unpaid, working, learning, studying,
assisting, observing or volunteering in a healthcare setting
providing direct patient or resident care or who have the potential
for direct or indirect exposure to patients, residents, or infectious
materials, and includes but is not limited to any individual licensed
by a health regulatory board as that is defined in ORS 676.160,
unlicensed caregivers, and any clerical, dietary, environmental
services, laundry, security, engineering and facilities management,
administrative, billing, student and volunteer personnel.
OAR 333-019-1010(2)(d)(A) (Sept. 1, 2021). The Healthcare Order defined “healthcare setting”
as:
[A]ny place where health care, including physical or behavioral
health care[,] is delivered and includes, but is not limited to any
health care facility or agency licensed under ORS chapter 441
or 443, such as hospitals, ambulatory surgical centers, birthing
centers, special inpatient care facilities, long-term acute care
facilities, inpatient rehabilitation facilities, inpatient hospice
facilities, nursing facilities, assisted living facilities, residential
facilities, residential behavioral health facilities, adult foster
homes, group homes, pharmacies, hospice, vehicles or temporary
sites where health care is delivered (for example, mobile clinics,
ambulances), and outpatient facilities, such as dialysis centers,
health care provider offices, behavioral health care offices, urgent
care centers, counseling offices, offices that provide
In late 2021, the United States Secretary of Health and Human Services (the “Secretary”),
who administers the Medicare and Medicaid programs, issued an interim final rule amending the
existing conditions of participation in Medicare and Medicaid to add a new requirement—that
facilities ensure that their covered staff are vaccinated against COVID-19. Medicare and
Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61555,

61616-27 (Nov. 5, 2021). The rule required providers to offer medical and religious exemptions
and did not cover staff who teleworked full-time. Id. at 61571-72. The rule further provided that
a facility’s failure to comply with the vaccination requirement may lead to monetary penalties,
denial of payment for new admissions, and ultimately termination of participation in the
programs. Id. at 61574. As explained by the Supreme Court, “[t]he Secretary issued the rule after
finding that vaccination of healthcare workers against COVID-19 was ‘necessary for the health
and safety of individuals to whom care and services are furnished.’” Biden v. Missouri, 595
U.S. 87, 91 (2022) (citing 86 Fed. Reg. at 61561). The Supreme Court upheld the Secretary’s
rule as within the Secretary’s authority provided by Congress. Id. at 93. The Supreme Court

added:
COVID-19 is a highly contagious, dangerous, and—especially for
Medicare and Medicaid patients—deadly disease. The Secretary of
Health and Human Services determined that a COVID-19 vaccine
mandate will substantially reduce the likelihood that healthcare
workers will contract the virus and transmit it to their patients.
86 Fed. Reg. 61557-61558. He accordingly concluded that a
vaccine mandate is “necessary to promote and protect patient
health and safety” in the face of the ongoing pandemic. Id.,
at 61613.

complementary and alternative medicine such as acupuncture,
homeopathy, naturopathy, chiropractic and osteopathic medicine,
and other specialty centers.
OAR 333-019-1010(2)(e)(A) (Sept. 1, 2021).
Id. In mid-2023, the Secretary issued a new rule withdrawing the vaccination requirement. Policy
and Regulatory Changes to the Omnibus COVID-19 Health Care Staff Vaccination
Requirements, 88 Fed. Reg. 36485, 36488 (June 5, 2023) (effective Aug. 4, 2023).
B. Trusov’s Employment at OHSU
In August 2013, Trusov began working for OHSU, an Oregon public corporation, as a

Registered Nurse in the NICU. After the onset of the COVID-19 pandemic and the availability of
COVID-19 vaccinations, OHSU mandated that Trusov receive a COVID-19 vaccination as a
condition of continued employment. In September 2021, Trusov put OHSU on notice of her
religious belief that she asserts prevented her from receiving a COVID-19 vaccination. In
October 2021, OHSU denied Trusov’s request for a religious accommodation that would have
exempted her from OHSU’s vaccination requirement. OHSU placed Trusov on administrative
leave on October 18, 2021, and terminated Trusov’s employment on December 6, 2021. Trusov
alleges that OHSU could have accommodated her religious beliefs without incurring undue
hardship.
C. Procedural History
Trusov commenced this lawsuit on January 17, 2023. ECF 1. On April 17, 2023, she filed

her First Amended Complaint (“FAC”). ECF 7. The FAC asserted two claims for money
damages plus a separate request for declaratory relief against OHSU and eight named individual
Defendants who are or were members of OHSU’s Board of Directors (“OHSU Board”) as well
as two unnamed individual (Doe) Defendants who are or were members of OHSU’s Vaccine
Exception Review Committee (“VERC”). Trusov alleged that OHSU violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, by discriminating against her because of her
religion. Trusov also alleged that the members of OHSU’s Board and VERC violated her First
Amendment right to freedom of religion, which is actionable under 42 U.S.C. § 1983. In
addition, Trusov requested declaratory relief stating that OHSU’s Board and VERC violated the
Free Exercise Clause of the First Amendment. Defendants moved to dismiss the FAC. ECF 9.
The Court granted Defendants’ motion as to Trusov’s First Amendment and declaratory
relief claims, and dismissed the individual Defendants, but denied the motion as to her Title VII
claim, declining to resolve OHSU’s affirmative defense of undue hardship at the stage of a

motion to dismiss. ECF 24. Trusov then filed her SAC in which she asserted a claim only against
OHSU, alleging employment religious discrimination in violation of 42 U.S.C. § 2000e-5 under
Title VII. ECF 25. OHSU timely answered. ECF 26.
Now before the Court is OHSU’s motion for summary judgment, arguing its undue
hardship affirmative defense. ECF 31. Also before the Court is Trusov’s cross-motion for partial
summary judgment, in which she raises the following issues: (1) whether Trusov had a bona fide
religious belief; (2) whether Trusov informed OHSU of her religious belief and its conflict with
OHSU’s COVID-19 vaccination requirement; (3) whether OHSU threatened to discharge and
ultimately did discharge Trusov “because of her inability to receive COVID-19 vaccination”; and

(4) whether OHSU’s evaluation process for Trusov’s request for religious accommodation
discriminated against her because of her religion. ECF 44.
DISCUSSION
Trusov argues that OHSU is a covered employer and has engaged in religious
discrimination in employment in violation of 42 U.S.C. § 2000e-2(a)(1) by failing to
accommodate her and through intentional discrimination. OHSU contends that it could not have
accommodated Trusov without suffering undue hardship, and that Trusov has not pleaded a
claim for intentional discrimination in her SAC. OHSU has moved for summary judgment to
dismiss Trusov’s failure to accommodate claim. As noted, Trusov has cross-moved for partial
summary judgment on her purported intentional discrimination claim. The Court addresses each
motion in turn.
A. Failure to Accommodate
1. Legal Framework
Under Title VII, it is unlawful for a covered employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has
explained that Title VII, as originally enacted, did not spell out what the statute meant by
discrimination “because of . . . religion,” but the Equal Employment Opportunity Commission
(“EEOC”) “interpreted that provision to mean that employers were sometimes required to
‘accommodate’ the ‘reasonable religious needs of employees.’” Groff v. DeJoy, 600 U.S. 447,
457 (2023) (quoting 29 C.F.R. § 1605.1(a)(2) (1967)). The EEOC then adopted regulations that
“obligated employers ‘to make reasonable accommodations to the religious needs of employees’
whenever that would not work an ‘undue hardship on the conduct of the employer’s business.’”
Id. (quoting 29 C.F.R. § 1605.1 (1968)).

In 1970, the Sixth Circuit held that Title VII, as then written, did not require an employer
“to accede to or accommodate” an employee’s religious practice because that “would raise
grave” Establishment Clause questions. Dewey v. Reynolds Metals Co., 429 F.2d 324, 334 (6th
Cir. 1968), aff’d by an equally divided court, 402 U.S. 689 (1971). Responding to Dewey and a
similar decision, Congress amended Title VII in 1972 to provide:
The term “religion” includes 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 or
prospective employee’s religious observance or practice without
undue hardship on the conduct of the employer’s business.
42 U.S.C. § 2000e(j); Groff, 600 U.S. at 458.
In Groff, the Supreme Court also clarified what Title VII requires in this area. As
explained by the Court, merely “showing ‘more than a de minimis cost,’ as that phrase is used in
common parlance, does not suffice to establish ‘undue hardship’ under Title VII.” Groff, 600
U.S. at 468. Instead, when an employer asserts the affirmative defense of undue hardship based

on cost, the employer “must show that the burden of granting an accommodation would result in
substantial increased costs in relation to the conduct of its particular business.” Id. at 470.
Further, “courts must apply the test in a manner that takes into account all relevant factors in the
case at hand, including the particular accommodations at issue and their practical impact in light
of the nature, size and operating cost of an employer.” Id. at 470-71 (cleaned up).
“What constitutes undue hardship must be determined within the particular factual
context of each case.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999); see also
Groff, 600 U.S. at 473 (describing the undue hardship inquiry as a “context-specific standard”).
“Cost cannot always be measured in terms of dollars,” but the employer “must connect the

asserted [non-economic] hardship to an adverse impact on the conduct of the business.” EEOC v.
Townley Eng’g & Mfg. Co., 859 F.2d 610, 615 (9th Cir 1988) (quotation marks omitted). Undue
hardship also includes increased safety and liability hazards in the workplace. Bhatia v. Chevron
U.S.A., Inc., 734 F.2d 1382, 1383-84 (9th Cir. 1984).
2. Application
For purposes of its summary judgment motion, OHSU does not argue that Trusov has not
proven her prima facie case. Instead, OHSU contends that it could not have reasonably
accommodated Trusov absent undue hardship. OHSU identifies the two accommodations that
Trusov proposed in her EEOC complaint—(1) allowing Trusov to work unvaccinated, or
(2) reassigning her to a different position. OSHU asserts that neither alternative was possible
without creating undue hardship. Trusov responds that OHSU would not suffer undue hardship if
it would have allowed her to work unvaccinated or reassigned her to another position.4
a. Allow Trusov to Continue Working While Unvaccinated
OHSU contends that allowing Trusov to work while unvaccinated would pose a
significant safety risk, increase its operating costs, and compromise OHSU’s public mission.

OHSU presents the expert report of Dr. Seth Cohen (ECF 32-1) (“Cohen Rep.”), and
declarations from Dr. Renee Edwards, the Chief Medical Officer of OHSU (ECF 33) (“Edwards
Decl.”); Dr. Marcel Curlin, the Medical Director of OHSU’s Occupational Health Department
(ECF 34) (“Curlin Decl.”); and Nurse Nikki Wiggins, the Clinical Nurse Manager for OHSU’s
NICU (ECF 35) (“Wiggins Decl.”) in support of OHSU’s position.5
Scientific data available in 2021 demonstrated that unvaccinated people were
significantly more likely than vaccinated people to become infected, or reinfected, with—and
develop symptoms of—COVID-19. Curlin Decl. ¶ 31; Cohen Rep. ¶¶ 23, 28. Unvaccinated
individuals who were infected with COVID-19 also were more contagious and infectious, and
thus transmitted COVID-19 to others at a higher frequency than vaccinated individuals. Curlin

Decl. ¶ 32; Cohen Rep. ¶¶ 24-25, 32. Further, vaccinated persons who experienced

4 Trusov argues in her motion that OHSU told her before she submitted her vaccination
exemption request that OHSU “would, at worst, place her on unpaid leave and then periodically
assess whether and under what circumstances she could return to direct patient care.” See
ECF 45-7 at 3. This situation was for “exempt, but unvaccinated employees,” not for those, like
Trusov, whose exemption requests were denied. Id. Moreover, Trusov does not explain how
unpaid administrative leave would constitute an accommodation and not an adverse employment
action. Thus, the Court does not consider this as a possible accommodation.
5 OHSU relies on the information available to it in 2021, when it made its undue hardship
determination. See MacDonald v. Or. Health & Sci. Univ., 2024 WL 3316199, at *7 (D. Or.
July 5, 2024) (holding that it is appropriate to limit analysis to the information and evidence
available at the time). Trusov agrees that this is the proper approach, as does the Court.
“breakthrough” infection were significantly less likely to develop severe COVID-19 and need
hospitalization. Curlin Decl. ¶¶ 33-34.
When OHSU terminated Trusov’s employment, OHSU was using a combination of
vaccination and other protective measures, such as social distancing, personal protective
equipment, and regular testing, to prevent the spread of COVID-19. Edwards Decl. ¶¶ 30-31.

OHSU concluded that removing any of these protective measures, especially vaccination, would
have increased the risk to OHSU’s patients and staff. Id. ¶¶ 31-32; Curlin Decl. ¶¶ 35-37. OHSU
further determined, based on scientific data and studies, that merely relying on protective
measures such as masking and testing were inadequate substitutes for vaccination. Curlin Decl.
¶¶ 29-30, 38-41, 44; Cohen Rep. ¶¶ 33-38.
Allowing Trusov to remain unvaccinated would threaten the health, safety, and even lives
of OHSU’s patients and staff. Further, many patients at OHSU are particularly vulnerable to
developing severe COVID-19 if they are infected. Edwards Decl. ¶¶ 15-18. Specifically, patients
in the NICU—neonates and recently pregnant mothers—are especially vulnerable. Wiggins

Decl. ¶¶ 13-16. An unvaccinated nurse also would jeopardize the health and safety of coworkers,
further creating an undue burden on OHSU.
In addition, allowing Trusov to work unvaccinated would create staffing problems and
impair OHSU’s critical functions, which also constitutes an undue burden for OHSU. See
generally Curlin Decl. ¶ 15; Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 68-69, 84
(1977) (impairing critical functions constitutes undue hardship, and creating staffing issues or
requiring payment of “higher wages” for substitute workers constitutes substantial increased
costs). Being unvaccinated, Trusov would be more likely to contract COVID-19 and to have to
quarantine and thus miss work while waiting to recover. Curlin Decl. ¶ 11. Not only were
unvaccinated people more likely to contract COVID-19, but they were more likely to suffer from
severe COVID-19 and develop long-COVID-19 symptoms, such as fatigue and cognitive
difficulties, that also would result in a more prolonged effect on both the employee and the
employer, here OHSU. Cohen Rep. ¶¶ 19, 29. Further, as discussed above, an unvaccinated
person likely would infect more coworkers, thereby compounding staffing problems. Trusov’s

proposed accommodation of working unvaccinated also would require her to test regularly.
OHSU spent substantial resources and time to administer COVID-19 tests, as well as to
investigate transmissions through contact tracing and lab sequencing, all to help keep the spread
of COVID-19 in its hospital under control. Curlin Decl. ¶¶ 10-13, 23-24. These are additional
undue burdens.
Finally, allowing an unvaccinated nurse to work with highly vulnerable patients would
compromise OHSU’s public mission. OHSU is legislatively created and charged with a public
mission to “serve the people of the State of Oregon” and “strive for excellence in education,
research, clinical practice, scholarship and community service while maintaining compassion,

personal and institutional integrity and leadership in carrying out its missions.” Or. Rev. Stat
§§ 353.030(1)-(2); see also Edwards Decl. ¶ 9. This statute requires that OHSU:
(a) Provide high quality educational programs appropriate for a
health and science university;
(b) Conduct research in health care, engineering, biomedical
sciences and general sciences;
(c) Engage in the provision of inpatient and outpatient clinical care
and health care delivery systems throughout the state;
(d) Provide outreach programs in education, research and health
care;
(e) Serve as a local, regional and statewide resource for health care
providers; and
(f) Continue a commitment to provide health care to the
underserved patient population of Oregon.
Or. Rev. Stat. § 353.030(3). Based on this statute, OHSU describes itself as having obligations
that include:
(1) providing Oregonians with accessible, exemplary, and safe
healthcare; (2) maintaining operational capacity and resources and
a workforce capable of continuously providing essential healthcare
services; (3) preserving the health and safety of our staff;
(4) serving the safety and welfare of the community; and
(5) serving as a model to other healthcare providers in Oregon.
Edwards Decl. ¶ 19. Accordingly, allowing an unvaccinated nurse to work with vulnerable
populations would directly contradict OHSU’s first four goals. Moreover, in its role as a model
and resource for other health care providers, OHSU asserts that it could not make a choice that
would endanger patients.
OHSU concluded, based on the information and evidence described above, that an
unvaccinated nurse in the NICU would pose a safety risk to other staff members and the
vulnerable patient population. If OHSU allowed this risk, it would violate its legislatively created
mission to serve the community and keep it safe. Permitting Trusov to work as a NICU nurse
while unvaccinated would unduly burden OHSU’s mission and, accordingly, the conduct of its
business.
For all of these reasons, OHSU has demonstrated that allowing Trusov to work in the
NICU while unvaccinated would pose an undue hardship to OHSU. Trusov provides only limited
and incomplete evidence in her attempt to rebut OHSU’s arguments and create a genuine issue.
Her primary evidence comes in the form of declarations from ten patient-facing nurses employed
by other health care providers who remained unvaccinated and used N95 masks and protective
eyewear and tested frequently. ECF 47-56. She argues that these accommodations made for other
nurses at other facilities, some of whom also worked in a NICU environment or with vulnerable
populations, indicates that such accommodations are possible and do not impose an undue
hardship. As noted, however, the undue hardship standard is “context-specific” and must be
decided based on the facts of each case. Groff, 600 U.S. at 473. OHSU explains how its unique
mission, safety concerns, and operational costs would be substantially affected by allowing
Trusov to continue to work while unvaccinated. Other health care providers may not have made

the same risk calculations or used the same cost-benefit analysis. For example, many of the
nurses whose declarations Trusov provides worked at Catholic hospitals, which have different
priorities and vaccination policies than OHSU. Further, merely because one employer chose to
accept certain risks and burdens to accommodate an employee does not mean that the
accommodation does not present an undue burden for another employer. Drawing all reasonable
inferences in favor of Trusov, her evidence does not raise a genuine issue of material fact for
OHSU’s undue hardship determination.
Trusov also contends that OHSU incurred substantial increased costs by terminating the
employment of Trusov and the other two NICU nurses who were denied religious exemptions, as

OHSU needed to replace them with more expensive travel nurses. Specifically, Trusov does not
provide any evidence that the replacement travel nurses were unvaccinated. Moreover, she does
not cite any case law in support of her contention that “where various accommodations pose a
substantial burden, the employer must choose the least burdensome among those options.”
MacDonald v. Or. Health & Sci. Univ., 689 F. Supp. 3d 906, 913 n.2 (D. Or. 2023). “If allowing
employees to continue working at OHSU while unvaccinated would have resulted in a
substantial burden to OHSU, it is irrelevant to this Court whether the course that OHSU
ultimately chose also resulted in a substantial burden.” Id. Trusov’s argument about the
replacement travel nurses does not refute OHSU’s affirmative defense that it would have faced a
substantial burden if it had allowed Trusov to continue working at OHSU while unvaccinated.
Thus, drawing all reasonable inferences in favor of Trusov, she fails to establish a genuine issue
of material fact that OHSU would have faced undue hardship if it had allowed Trusov to
continue working as a NICU nurse while unvaccinated.6
b. Reassign Trusov to Another Position at OHSU

Trusov presents another possible accommodation: to reassign her to another position
within the hospital where she would not have to work directly with patients. OHSU argues that
this too would create a similar staffing shortage as described above because there was a nurse
shortage in Oregon at that time. Wiggins Decl. ¶ 36. NICU nurses require specialized training,
such that the pool of nurses who could replace Trusov was limited. Id. To avoid understaffing in
its NICU, OHSU would thus have needed to search for a replacement for Trusov and pay that
person’s wages while still paying Trusov’s salary, creating a substantial increased cost for
OHSU.
Similarly, “any accommodation that involved removing [Trusov] from the NICU [while
not replacing her] would have shifted [Trusov’s] hazardous duties to her coworkers.” This poses

a substantial non-economic cost to OHSU’s business. See Bhatia, 734 F.2d at 1383-84. Thus,
OHSU has shown that accommodating Trusov by removing her from the NICU and reassigning
her to another position would create an undue hardship for OHSU through substantial increased
costs, both economic and non-economic.

6 Trusov also argues that OHSU’s experts have not “quantified the alleged increased safety risk
that would have occurred had OHSU allowed a single unvaccinated NICU nurse to continue to
treat neonates while wearing an N95 mask and protective eyewear.” She does not cite any
authority holding that such risks must be quantified in an undue hardship analysis. Moreover,
OHSU presents quantitative evidence of the efficacy of vaccination. See, e.g., Cohen Rep. ¶¶ 23-
24, 26; Curlin Decl. ¶¶ 31, 34. Thus, Trusov’s argument on this point also is unavailing.
In summary, Trusov does not provide any evidence to respond to OHSU’s arguments and
evidence sufficient to create a genuine issue of material fact. The Court therefore grants
summary judgment to OHSU because there is no genuine dispute that Trusov’s proposed
accommodations would cause OHSU to suffer a substantial and undue hardship.
B. Intentional Discrimination

In Trusov’s cross-motion for partial summary judgment, she requests summary judgment
on the issue that OHSU intentionally discriminated against her “in the manner in which it
conducted its religious accommodation process.” OHSU responds that any “intentional
discrimination” claim is not apparent on the face of the SAC, nor is it well-pleaded. OHSU also
argues that Trusov failed to exhaust administrative remedies for an intentional discrimination
claim, and that she fails to establish the absence of a genuine issue of material fact. Trusov
replies that she has sufficiently pleaded this claim, that OHSU was sufficiently on notice of that
claim, and that there is no genuine issue of material fact sufficient to deny Trusov’s motion.
To plead a claim for intentional discrimination, Trusov must establish that
(1) [s]he is a member of a protected class; (2) [s]he was qualified
for [her] position; (3) [s]he experienced an adverse employment
action; and (4) similarly situated individuals outside [her] protected
class were treated more favorably, or other circumstances
surrounding the adverse employment action give rise to an
inference of discrimination.
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). OHSU argues that, among
other things, Trusov does not satisfy the fourth element, as she does not identify any similarly
situated coworkers who were treated differently and does not allege that OHSU was
discriminating between religious beliefs.
Trusov does not dispute that she has not identified similarly situated individuals outside
her protected class who were treated more favorably. Instead, she argues that “when employers
make categorical policies about what types of beliefs will be considered religious and what types
of conduct will make every religious employee insincere the employer has engaged in an
unlawful employment practice under Title VII.” As OHSU states, however, it is not
discriminatory to distinguish between sincerely held religious beliefs and other personal
preferences. See Doe v. S. D. Unified Sch. Dist., 19 F.4th 1173, 1180 (9th Cir. 2021)

(“[A]lthough Title VII prohibits employment discrimination based on religion, an employee’s
request for an exemption from a COVID-19 vaccination mandate can be denied on the ground
that the employee’s belief is not truly religious in nature . . . .”). Accordingly, the SAC does not
sufficiently plead an intentional discrimination claim, and the Court denies Trusov’s motion for
summary judgment on this ground.7 Because the Court finds that Trusov has not sufficiently
pleaded this claim, it does not reach OHSU’s other arguments. Nor is it necessary to decide
whether Trusov had a bona fide religious belief or whether any such belief rendered her “unable”
to receive the COVID-19 vaccination.8 The Court thus denies Trusov’s partial motion for
summary judgment in its entirety.

7 Trusov also has not moved to amend her SAC to add a claim of intentional discrimination.
Moreover, doing so now would be untimely. A response to summary judgment is not the time to
amend pleadings or raise new claims. See, e.g., La Asociacion de Trabajadores de Lake Forest v.
City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010) (stating that the plaintiff “may not
effectively amend its Complaint by raising a new theory of standing in its response to a motion
for summary judgment”); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir.
2008) (stating that when allegations are not in the complaint, “raising such claim in a summary
judgment motion is insufficient to present the claim to the district court”), overruled in part on
other grounds by Apache Stronghold v. United States, 95 F.4th 608 (9th Cir. 2024); Wasco
Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put, summary
judgment is not a procedural second chance to flesh out inadequate pleadings.” (quoting Fleming
v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990))).
8 As OHSU also argues, summary judgment is not proper because “issues of [Trusov’s] sincerity
and religiosity—and whether her purportedly religious beliefs in fact rendered her ‘unable’ to
become vaccinated—are classic questions of fact and credibility” that cannot be decided on a
motion for summary judgment.
CONCLUSION
The Court GRANTS OHSU’s motion for summary judgment (ECF 31) and DENIES
Trusov’s cross-motion for partial summary judgment (ECF 44).
IT IS SO ORDERED.

DATED this 26th day of August, 2025.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11127790. Public record. Not legal advice.