Opinion

UNITED STATES DISTRICT COURT December 18, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

JESSICA SMITH, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 3:24-cv-00336

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UNIVERSITY OF TEXAS MEDICAL §

BRANCH, §

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Defendant. §

AMENDED MEMORANDUM AND RECOMMENDATION1

In this employment discrimination case, Plaintiff Jessica Smith alleges that

The University of Texas Medical Branch at Galveston (“UTMB”) discriminated

against her on the basis of her religion when it failed to accommodate her religious

beliefs. UTMB has filed a motion to dismiss. See Dkt. 15. Smith, representing

herself, responded to the motion and requested an opportunity to supplement her

complaint to add a promissory estoppel claim.2 See Dkt. 17. For the reasons

discussed below, I recommend that the motion to dismiss be denied.

BACKGROUND

Smith worked as a telephone triage nurse at UTMB for approximately eight

years. In early 2022, UTMB issued a policy requiring all its employees and

1 On November 13, 2025, I recommended that the court dismiss Smith’s lawsuit based on

Smith’s failure to complete and return UTMB’s COVID-19 vaccine exemption form, which

deprived UTMB of notice of Smith’s bona fide religious belief. See Dkt. 26 at 7. But Smith

provided notice of her bona fide religious belief to UTMB through a rebuttal letter that

UTMB received prior to terminating Smith’s employment. Thus, she has pleaded facts

sufficient to infer that UTMB was on notice of her bona fide religious belief. Accordingly,

I withdraw my November 13 memorandum opinion, order, and recommendation and

offer this recommendation instead. Because I offer this recommendation instead, I also

recommend that Smith’s motion for reconsideration be denied as moot. See Dkt. 28.

2 If Smith wants to amend her complaint to add a promissory estoppel claim, she may do

so within 14 days after this memorandum and recommendation is adopted. I express no

opinion on the legal sufficiency of Smith’s promissory estoppel claim.

contractors to be fully vaccinated against the COVID-19 virus or face termination.

UTMB advised its employees and contractors that they could request an exemption

from the vaccine mandate based on a “recognized medical condition(s) for which

vaccines are contraindicated or religious beliefs, observances, or practices.” Dkt. 1-

1 at 7. An employee seeking an exemption from the COVID-19 vaccination policy

for religious reasons was required to complete a two-page form. That form asked

the employee to “identify the particular, sincerely held religious belief, observance

or practice that you would violate or forgo in receiving a COVID-19 vaccine.” Id. at

5. The form also asked employees to “[d]escribe how receiving a COVID-19 vaccine

conflicts with your sincerely held religious belief, observance or practice.” Id.

According to the complaint, once an employee completed the religious exemption

form, “a board of area religious leaders” would review it and determine whether to

approve an exemption from the vaccination policy. Dkt. 1 at 9.

Smith contends that she “holds sincere bona fide religious beliefs that

preclude her from receiving a COVID-19 vaccine.” Id. at 17. On October 2, 2021,

Smith declined to receive the influenza vaccine “[d]ue to a matter of conscience,”

as shown on a “Season Influenza Vaccine—Declination Statement” that was

provided to UTMB. Dkt. 1-1 at 4. Yet, Smith “did not complete [UTMB]’s form to

request a religious exemption [from the COVID-19 vaccine] because of [what she

perceived to be] the form’s intrusive nature and because [she] was unable to obtain

a spiritual leader’s attestation as to the sincerity of [her] beliefs.” Dkt. 1 at 12.

On February 16, 2022, UTMB notified Smith via an intent-to-terminate

letter that she “will be no longer eligible to work at UTMB after March 18, 2022,”

due to her failure to either receive the COVID-19 vaccine or “an approved

exemption and accommodation.” Dkt. 1-1 at 7. UTMB gave Smith the opportunity

to respond by March 18, 2022, “in writing if any of [the] facts are incorrect or if

there are any reasons why this action should not be taken.” Id. at 7–8. On March

14, 2022, Smith submitted a rebuttal letter to UTMB’s intent to terminate. In that

letter, she wrote:

Like most modern pharmaceuticals, the mRNA and other

COVID-19 “vaccines” were developed/created using aborted fetal

tissue. Abortion is an aberration to God and is the murder of a living

human being. Proof of this is in Exodus 20:13, “You must not commit

murder.” To extinguish the life of an unborn, innocent human being

is wicked enough, but none should profit from such a despicable

practice. I will never knowingly introduce the products of these

abominable child sacrifices into my body.

Dkt. 1-1 at 13–14.

Smith alleges that she “informed [UTMB] of [her bona fide religious] beliefs

in writing and requested to be allowed to telework as a reasonable

accommodation,” but that “[UTMB] refused to engage in the interactive process

with [Smith] regarding her religious accommodation request.” Dkt. 1 at 18. UTMB

terminated Smith’s employment on April 19, 2022, for failing to comply with its

COVID-19 vaccination policy by either becoming fully vaccinated or obtaining a

medical or religious exemption.

In her complaint, Smith alleges that UTMB discriminated against her on the

basis of her religion in violation of Title VII of the Civil Rights Act of 1964 by failing

to accommodate her religious beliefs. UTMB has moved to dismiss Smith’s lawsuit

for several reasons. First, UTMB argues that Smith’s failure to timely effect service

should result in dismissal. Second, UTMB contends that Smith’s lawsuit is

untimely because she did not file her lawsuit within 90 days of receiving her right

to sue letter from the Equal Employment Opportunity Commission (“EEOC”).

Third, UTMB insists that Smith has failed to state a religious discrimination or

religious failure-to-accommodate claim. I will examine each argument below.

LEGAL STANDARD

A complaint may be dismissed for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6),

“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)). In

evaluating a Rule 12(b)(6) motion, a court may consider: (1) the pleadings and any

attachment to the pleadings; and (2) documents that a defendant attaches to its

motion to dismiss if those documents are referenced in the plaintiff’s complaint

and are central to the plaintiff’s claim. See Collins v. Morgan Stanley Dean Witter,

224 F.3d 496, 498–99 (5th Cir. 2000). “A document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (cleaned up).

ANALYSIS

A. SMITH’S FAILURE TO TIMELY EFFECT SERVICE IS NOT A REASON TO

DISMISS THIS CASE

UTMB’s first argument is that Smith’s lawsuit should be dismissed because

she failed to timely effect service on UTMB. Smith filed her original complaint on

November 21, 2024. She did not properly serve UTMB until July 22, 2025, or 244

days after the lawsuit was filed. Smith contends that service was delayed because

she mistakenly assumed that a summons would be issued automatically. Once she

realized that was not the case, Smith requested a summons and had UTMB served.

The Federal Rules provide that:

If a defendant is not served within 90 days after the complaint is filed,

the court—on motion or on its own after notice to the plaintiff—must

dismiss the action without prejudice against that defendant or order

that service be made within a specified time. But if the plaintiff shows

good cause for the failure, the court must extend the time for service

for an appropriate period.

Fed. R. Civ. P. 4(m). Even if good cause is lacking, a district “court has discretionary

power to extend the time for service.” Millan v. USAA Gen. Indem. Co., 546 F.3d

321, 325 (5th Cir. 2008). “A discretionary extension may be warranted, ‘for

example, if the applicable statute of limitations would bar the refiled action, or if

the defendant is evading service or conceals a defect in attempted service.’” Id.

(quoting Fed. R. Civ. P. 4(m) advisory committee’s note to 1993 amendment).

“[W]here the applicable statute of limitations likely bars future litigation, a

district court’s dismissal of claims under Rule 4(m) should be reviewed under the

same heightened standard used to review a dismissal with prejudice.” Millan, 546

F.3d at 326. “Dismissal with prejudice . . . is an extreme sanction that deprives a

litigant of the opportunity to pursue his claim.” Gonzalez v. Firestone Tire &

Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980). Consequently, the Fifth Circuit has

limited a district court’s discretion to dismiss claims with prejudice to those cases

in which “a clear record of delay or contumacious conduct by the plaintiff exists

and a lesser sanction would not better serve the interests of justice.” Millan, 546

F.3d at 326 (quotation omitted).

A plaintiff alleging a Title VII claim must file a civil action no more than 90

days after she receives statutory notice of her right to sue from the EEOC. See 42

U.S.C. § 2000e–5(f)(1). Dismissing Smith’s lawsuit for lack of timely service would

preclude Smith from pursuing her Title VII claims. That would be incredibly unfair

given that Smith is a pro se litigant who, quite understandably, does not have a

firm grasp of the procedures surrounding the issuance of a summons. Because

nothing in the record before me suggests that the delay in service was intentionally

caused by Smith or that UTMB has been prejudiced in any way, this court lacks

discretion to dismiss this action for untimely service. See Millan, 546 F.3d at 326.

Thus, I recommend that the motion to dismiss for untimely service be denied.

B. SMITH’S FAILURE TO TIMELY FILE HER LAWSUIT IS SAVED BY THE

EQUITABLE TOLLING DOCTRINE

UTMB next argues that Smith’s Title VII claim should be dismissed because

it is untimely. As discussed, Smith had 90 days from the date she received her right

to sue letter from the EEOC to file a civil action. See 42 U.S.C. § 2000e–5(f)(1).

“The ninety-day window is strictly construed and is a precondition to filing suit in

district court.” Duron v. Albertson’s LLC, 560 F.3d 288, 290 (5th Cir. 2009)

(quotation omitted).

Smith admits that she received her EEOC right to sue letter on August 22,

2024. See Dkt. 1 at 1. Smith was thus required to file her lawsuit by November 20,

2024. Although Smith put her lawsuit in the mail on November 19, 2024, the

Clerk’s office did not receive Smith’s complaint until November 21, 2024, one day

outside the applicable limitations period. “[C]ompliance with a Filing requirement

is not satisfied by Mailing the necessary papers within the allotted time. The papers

must be filed by the clerk within the filing period specified in the applicable rule or

order.” Lee v. Dallas Cnty. Bd. of Ed., 578 F.2d 1177, 1178 n. 1 (5th Cir. 1978).

UTMB insists that this one day delay precludes this court from deciding this

matter. I disagree.

Title VII’s filing period is subject to equitable tolling. See Bernstein v.

Maximus Fed. Servs., Inc., 63 F.4th 967, 970 (5th Cir. 2023). “The doctrine of

equitable tolling preserves a plaintiff’s claims when strict application of the statute

of limitations would be inequitable.” Lambert v. United States, 44 F.3d 296, 298

(5th Cir. 1995) (citing Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965)).

“As a discretionary doctrine that turns on the facts and circumstances of a

particular case, equitable tolling does not lend itself to bright-line rules.” Fisher v.

Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Instead, a court must “draw on general

principles to guide when equitable tolling is appropriate.” Id. Generally speaking,

“a litigant is entitled to equitable tolling of a statute of limitations only if the litigant

establishes two elements: (1) that [s]he has been pursuing [her] rights diligently,

and (2) that some extraordinary circumstance stood in [her] way and prevented

timely filing.” Menominee Indian Tribe of Wis. v. United States, 477 U.S. 250, 255

(2016) (quotation omitted).

This is not a case in which Smith haphazardly placed her complaint in the

mail, uncertain of when it would arrive at the courthouse steps. On November 19,

2024, Smith paid $36.10 to deliver the complaint to the Galveston federal

courthouse overnight. See Dkt. 17 at 37. The receipt clearly shows that she paid for

one-day service, with a scheduled delivery date of November 20, 2024. See id.

Unfortunately, the postal service did not timely deliver Smith’s mailing as

promised on November 20, 2024. For whatever reason, the lawsuit did not arrive

at the Galveston federal courthouse until November 21, 2024. Smith cannot be

blamed for the postal service’s tardiness, as she exercised due diligence in pursuing

her rights. In Smith’s own words, she “made an honest and good faith effort to

effect timely filing of her complaint.” Id. at 5.

Equitable tolling is “to be applied sparingly.” National R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113 (2002). This case, however, presents a rare and

exceptional circumstance that warrants applying the doctrine. To deny equitable

relief here would send a message to pro se litigants that the only way to ensure a

document is timely filed is if they personally deliver that document to the

courthouse. In the present case, that is unworkable considering that Smith lives in

Mount Pleasant, Texas—a town more than 300 miles from the Galveston federal

courthouse. Smith took reasonable steps to ensure that her complaint reached the

courthouse by the November 20, 2024 deadline. A strict adherence to the 90-day

statute of limitations would be inequitable here. As I have stated before, this “Court

will go to great lengths to exercise its discretion to ensure a litigant has an

opportunity to present her case to a judge or jury—especially when circumstances

completely outside her control would otherwise slam the courthouse door in her

face.” Jefferson v. Haza Foods, No. 3:17-cv-00359, 2018 WL 5268756, at *6 (S.D.

Tex. Oct. 5, 2018). Accordingly, I recommend that UTMB’s motion to dismiss for

Smith’s failure to timely file her lawsuit be denied.

C. SMITH HAS STATED A RELIGIOUS FAILURE-TO-ACCOMMODATE CLAIM

I now turn to UTMB’s argument that Smith fails to state a religious failure-

to-accommodate claim under Rule 12(b)(6).

Title VII makes it unlawful for an employer to “discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1).

“Title VII . . . requires employers to accommodate the religious observances or

practices of applicants and employees.” Hebrew v. Tex. Dep’t of Crim. Just., 80

F.4th 717, 721 (5th Cir. 2023) (citing 42 U.S.C.. § 2000e(j)). “An employer has the

statutory obligation to make reasonable accommodations for the religious

observances of its employees, but is not required to incur undue hardship.” Weber

v. Roadway Exp., Inc., 199 F.3d 270, 273 (5th Cir. 2000).

To plead a Title VII failure-to-accommodate claim, Smith must allege that:

“(1) she held a bona fide religious belief, (2) her belief conflicted with a requirement

of her employment, (3) her employer was informed of her belief, and (4) she

suffered an adverse employment action for failing to comply with the conflicting

employment requirement.” Davis v. Fort Bend County, 765 F.3d 480, 485 (5th Cir.

2014) (quotation omitted). Although Smith does “not have to submit evidence to

establish a prima facie case of discrimination at this stage, [Smith must] plead

sufficient facts on all of the ultimate elements of a [failure-to-accommodate] claim

to make [her] case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470

(5th Cir. 2016).

UTMB argues that Smith’s claim fails because (1) Smith “did not initiate

[UTMB’s established process for requesting a religious exemption] by choosing not

to fill out the UTMB form [for requesting a COVID-19 exemption]”; and

(2) because “[i]nstead of requesting religious exemption, [Smith] requested a

‘100% work from home exemption.’” Dkt. 15 at 15. Neither of UTMB’s arguments

is availing.

Smith attached the March 21, 2022 rebuttal letter that she sent to UTMB to

her complaint. See Dkt. 1-1 at 9–15. Accordingly, that letter is considered part of

Smith’s pleadings and is properly considered on a motion to dismiss. See Collins

v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). In that

rebuttal letter, Smith articulated her bona fide religious beliefs and quoted

scripture. See Dkt. 1-1 at 13–14. While Smith’s complaint could be clearer about

the timeline of events, the attachments to her complaint show that UTMB received

her rebuttal letter—and thus, were on notice of her bona fide religious beliefs and

her need for a religious accommodation. UTMB received Smith’s rebuttal letter

well in advance of terminating her employment on April 19, 2022. Accordingly, it

is plausible that UTMB should have accommodated Smith or at least engaged in

the interactive process before terminating her.

UTMB makes too much of Smith’s refusal to complete its COVID-19

exemption form. “An employee is not required to use magic words to make a

legitimate request for a religious accommodation under Title VII, but they must at

least say something to indicate their need for an accommodation.” Swanson v.

Lilly USA, LLC, No. 1:23-cv-00831, 2024 WL 4815867, at *8 (S.D. Ind. Nov. 15,

2024) (quotation omitted). While Smith might not have put UTMB on notice of

her need for a religious accommodation prior to UTMB sending her an intent-to-

terminate letter, UTMB unquestionably knew about her need for a religious

accommodation after it received her March 21, 2022 rebuttal letter, and before it

terminated her employment.

UTMB also makes too much of the fact that Smith styled her request as a

work-from-home exemption, rather than a COVID-19 exemption. “An employee

may object to an employer’s vaccine mandate on both religious and non-religious

grounds.” Passarella v. Aspirus, Inc., 108 F.4th 1005, 1009 (7th Cir. 2024). Thus,

Smith’s phrasing of her request as a work-from-home exemption does not change

the fact that UTMB had written notice that she would not take the COVID-19

vaccine, at least in part, because she believed it to be profiting from murder, which

she considers “an aberration to God” based on certain scripture. See Dkt. 1-1 at 13–

14. This was enough to put UTMB on notice of Smith’s bona fide religious belief

and her need for a religious accommodation. Accordingly, Smith has plausibly

stated a religious failure-to-accommodate claim. Smith’s failure-to-accommodate

claim should not be dismissed at this early pleading stage.

D. SMITH HAS STATED A RELIGIOUS DISPARATE TREATMENT CLAIM BASED

ON A FAILURE TO ACCOMMODATE3

Finally, I must address UTMB’s argument that Smith fails to state a Title VII

religious disparate treatment claim under Rule 12(b)(6).

UTMB argues that Smith cannot state a religious disparate treatment claim

because she “has not alleged any facts supporting” “membership in a protected

class,” “that she was qualified for the position,” or “that she was treated less

favorably than was a similarly situated employee outside the protected class.”

Dkt. 15 at 13. If this were a racial or sex discrimination case, then UTMB might

have a point. But UTMB has identified the wrong standard for a religious disparate

treatment claim based on a failure to accommodate a religious practice, which is

the type of claim that Smith advances in this case.

“[T]he rule for disparate-treatment claims based on a failure to

accommodate a religious practice is straightforward: An employer may not make

an applicant’s religious practice, confirmed or otherwise, a factor in employment

decisions.” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015).

“An employer violates Title VII if the employee requires an accommodation of a

religious practice, and the employer’s desire to avoid the prospective

accommodation is a motivating factor in his decision to terminate the employee.”

Hebrew, 80 F.4th at 724 (cleaned up). “This ‘motivating factor’ standard is

‘broader than the typical but-for causation standard’ and encompasses many

claims of religious discrimination.” Id. (quoting Nobach v. Woodland Vill. Nursing

3 If I were to look only at the headings in Smith’s complaint, it would seem that she has

alleged only a failure-to-accommodate claim. But federal courts “hold pro se plaintiffs to

a more lenient standard than lawyers when analyzing complaints.” Chhim, 836 F.3d at

469. “A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). So long as Smith

“plead[s] factual allegations that raise the right to relief above the speculative level,” she

can state a claim, even if she does not expressly name that claim in her complaint. Chhim,

836 F.3d at 469. As discussed below, Smith pleads factual allegations that raise her right

to relief on a religious disparate treatment claim based on a failure to accommodate above

a speculative level.

Ctr., Inc., 799 F.3d 374, 378 (5th Cir. 2015)). “[M]otive is especially easy to infer

where an employee has submitted a request for an accommodation or where the

employer knows of the employee’s religious practice.” Hebrew, 80 F.4th at 724.

Here, after giving Smith notice of its intent to terminate her employment,

but prior to actually doing so, UTMB knew that Smith refused to receive the

COVID-19 vaccine because she believed the vaccine to be a “profit from the

termination/murder/abortion of a human life,” contrary to a biblical

commandment not to commit murder. Dkt. 1-1 at 14. Thus, UTMB knew, at a

minimum, of Smith’s religious belief that prevented her from receiving the COVID-

19 vaccine. That is enough to survive the pleading stage.

CONCLUSION

For the reasons set forth above, I recommend that UTMB’s motion to

dismiss Smith’s Title VII religious failure-to-accommodate claim and religious

disparate treatment claim be denied.

As a general rule, the parties have 14 days from service of this Memorandum

and Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed.

R. Civ. P. 72(b)(2). Because the holidays are upon us, I will extend the deadline for

either side to objection to my memorandum and recommendation until Friday,

January 9, 2026. Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

SIGNED this ___ day of December 2025.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE