# Cherry v. Washington Department of Fish and Wildlife

> Court of Appeals for the Ninth Circuit · August 21, 2026

URL: https://www.frixlaw.com/law-library/cases/11422128

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** August 21, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL CHERRY; LINDA LOPEZ; No. 25-4763
STEPHEN J. ANDERSON;
D.C. No.
CHARLES FRADY; TRENTON
3:23-cv-05077-
DEBOER,
DGE
Plaintiffs - Appellants,
OPINION
RUTHANNA SHIRLEY,
JOHNATHAN HONE, MARCUS
SANCHEZ, MORGAN WINES,
SAMUEL KOLB, THOMAS
MOATS, DONALD BRADLEY
ALLEN, JOSHUA BELTZ, ERIC
OSWALD, ISAAC STUTES, JULI
ANDERSON, DREW DELOZIER,
CARLY PETERS,

Plaintiffs,

v.

WASHINGTON DEPARTMENT
OF FISH & WILDLIFE; KELLY
SUSEWIND; AMY WINDROPE;
LONNIE SPIKES; STEVE BEAR;
CRAIG BURLEY,

Defendants - Appellees.
2 CHERRY V. WA DEP’T OF FISH & WILDLIFE

Appeal from the United States District Court
for the Western District of Washington
David G. Estudillo, District Judge, Presiding

Argued and Submitted June 11, 2026
Seattle, Washington

Filed August 21, 2026

Before: Milan D. Smith, Jr. and Eric C. Tung, Circuit
Judges, and John Charles Hinderaker, District Judge. *

Opinion by Judge Tung

SUMMARY **

Employment Discrimination

The panel affirmed in part and reversed the district
court’s summary judgment in favor of the defendants and
remanded for further proceedings in a reasonable
accommodation action under Title VII and the Washington
Law Against Discrimination.
The Washington Department of Fish & Wildlife granted
five employees religious exemptions from a COVID-19
vaccination mandate. The Department informed the

*
The Honorable John Charles Hinderaker, United States District Judge
for the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHERRY V. WA DEP’T OF FISH & WILDLIFE 3

employees that it could not accommodate them in their
current roles but offered them a reassignment process.
The panel held that Title VII requires an employer to
reasonably accommodate the religious beliefs and practices
of its employees, short of incurring an undue hardship. Once
an employee has made a prima facie showing of religious
discrimination, the burden shifts to the employer to prove
that it made good faith efforts to accommodate the
employee’s religious belief in a manner that would
reasonably preserve that employee’s employment status. If
the accommodation proposed by the employer does not
eliminate the conflict, then the employer must implement an
alternate accommodation proposed by the employee, unless
that would cause undue hardship to the employer. If the
accommodation proposed by the employer does reasonably
preserve an employee’s status, then the employer has met its
burden.
The panel held that the district court misapplied these
rules when it concluded, as a matter of law, that the
Department met its burden under Title VII. The panel
concluded that offering the reassignment process was not, as
a matter of law, an offer of a reasonable accommodation,
meaning an alternate position or arrangement that eliminated
the asserted conflict between the employees’ religious
beliefs and the employees’ current jobs, because the
reassignment process offered only a limited possibility of an
accommodation. Thus, the panel could not say that, as a
matter of law, the Department made a good faith effort to
reasonably accommodate the employees’ religion.
The panel reversed the district court’s grant of summary
judgment against most of the employees with respect to their
Title VII claims and against all of the employees with respect
4 CHERRY V. WA DEP’T OF FISH & WILDLIFE

to their claims under the Washington Law Against
Discrimination. For two of the employees who failed to
meet the procedural requirements for bringing a Title VII
claim, the panel affirmed the district court’s grant of
summary judgment for defendants with respect to those
employees’ Title VII claims.
The panel affirmed the district court’s summary
judgment to defendants as to the employees’ federal and
state constitutional claims. The employees forfeited their
argument that their claims against Department officers in
their official capacities were not barred by sovereign
immunity. The district court did not abuse its discretion in
retaining jurisdiction over the state-law claims and did not
err in rejecting those claims.
Finally, the panel held that the district court did not abuse
its discretion in excluding three of the employees’ proffered
experts, nor in issuing a protective order that prohibited their
taking of a Fed. R. Civ. P. 30(b)(6) deposition.

COUNSEL

Nathan J. Arnold (argued), Arnold Jacobowitz & Alvarado
PLLC, Seattle, Washington; Lesley-Anne Alvarado, Arnold
Jacobowitz & Alvarado PLLC, Redmond, Washington;
Dennis J. McGlothin, Western Washington Law Group
PLLC, Bellevue, Washington; for Plaintiffs-Appellants.
Kevin J. Kennedy (argued) and Zachary J. Pekelis, Pacifica
Law Group LLP, Seattle, Washington; Nicholas W. Brown,
Washington Attorney General, Office of the Washington
Attorney General, Seattle, Washington; Michael J. Ewart
CHERRY V. WA DEP’T OF FISH & WILDLIFE 5

and Mary E.C. Peterson, Hillis Clark Martin & Peterson PS,
Seattle, Washington; for Defendants-Appellees.

OPINION

TUNG, Circuit Judge:

Title VII requires an employer to reasonably
accommodate an employee’s exercise of religion. This case
asks whether, as a matter of law, an employer satisfies its
obligation to provide a reasonable accommodation when it
gives the employee the opportunity to participate in a
reassignment process offering only a limited possibility of
an accommodation and the employee does not complete the
process. The answer is no. This case presents an issue of
fact suitable for a jury trial.
The employer has the burden of proposing a reasonable
accommodation that eliminates a conflict between the
employee’s job and his religious beliefs—by proposing, for
example, an alternative position or the same position but
with a different arrangement. The facts here suggest that the
employer’s reassignment process offered little more than a
fig leaf. The process put forth by the Department of Fish and
Wildlife of Washington State yielded reassignment only 14
percent of the time. And even among that small set of
reassignments, the Department offered no information to
suggest whether those reassigned positions in fact
accommodated the employee’s religious conflict and
whether those purported accommodations were in fact
reasonable (i.e., whether they reasonably preserved the
employee’s pay and other privileges). The only information
6 CHERRY V. WA DEP’T OF FISH & WILDLIFE

we have about a specific proposed accommodation for an
employee (not a party to this appeal) shows that the
accommodation was not reasonable: the Department offered
the employee a job that paid him only half of his current
salary; of course, he turned it down.
The district court nevertheless concluded that the
Department’s “reassignment” process was sufficient as a
matter of law to satisfy the Department’s duties under Title
VII, granting summary judgment for the Department. We
reverse that judgment, while affirming other orders that are
on appeal as discussed below.
I.
In August 2021, the Washington Governor issued a
mandate that generally required most State employees to
vaccinate against COVID-19 or face termination from their
employment. 15-ER-4087–96. The mandate applied to the
Washington Department of Fish and Wildlife and permitted
exemptions for medical or religious reasons. 15-ER-4088.
Plaintiffs-Appellants are five Employees (Paul Cherry,
Stephen Anderson, Trenton DeBoer, Charles Frady, and
Linda Lopez) who worked for the Department in 2021.
When the vaccine mandate was issued, the Employees
sought religious exemptions. See, e.g., 13-ER-3480–81.
The Department found that each of the five Employees’
requests for exemption was based upon sincerely and
personally held religious beliefs and granted them each a
religious exemption. 13-ER-3480–81; id. at 3256–57,
3374–75, 3451–52; 12-ER-3041–42.
Finding that the Employees’ jobs “must at times be done
in the physical presence of others” and that vaccination was
imperative, the Department informed the Employees that it
CHERRY V. WA DEP’T OF FISH & WILDLIFE 7

could not accommodate them in their current roles. 1 See,
e.g., 13-ER-3256. The letters from the Department notifying
the Employees that they would be unable to stay in their
current positions included the following language:
“Reassignment remains a possibility, although opportunities
may be limited. If you would like to explore any available
reassignment options, please contact Joceile Moore,
Reasonable Accommodation Specialist . . . as soon as
possible.” Id. The remainder of the letters notified the
Employees that they would be separated if they could not
show proof of vaccination and provided resources to support
the employees during this “difficult time,” including
services related to unemployment and retirement. Id. at
3257.
The Department’s data reflect that, historically, out of
122 requests for a religious accommodation, only 17 were
granted (or 14 percent). 4-ER-794. The data provide no
information about what jobs were given and whether they
preserved the employee’s prior employment conditions. Id.
One employee (not a part of this appeal) who participated in
the reassignment process was offered a job at 50 percent of
his salary; he left the Department because “the pay cut was
not feasible.” 1-ER-30. One of the Employees (Anderson)
testified that he discussed reassignment with the
Department’s human resources specialist (Joceile Moore)
and that she told him, “We don’t have anything for you.

1
All five Employees requested to stay in their jobs while masking and
distancing. 13-ER-3381–82; 13-ER-3485–86; 13-ER-3290–91; 13-ER-
3456–57; 12-ER-3053–54. Some indicated willingness to telework in
the alternative, 13-ER-3456–57; 12-ER-3053–54, and all appeared
willing to be considered for another job that would eliminate the
religious conflict. 13-ER-3381–82; 13-ER-3485–86; 13-ER-3290–91;
13-ER-3456–57; 12-ER-3053–54.
8 CHERRY V. WA DEP’T OF FISH & WILDLIFE

There’s just nothing available.” 3-ER-462. The Employees
did not complete the reassignment process, and the record
reflects that some of them believed the process to be
pointless. For instance, as the district court acknowledged,
Anderson believed the process was just “a show.” 15-ER-
3864; see 1-ER-49. And Cherry believed that, “[b]ecause
[he] was unvaccinated,” he had no chance of being
reassigned. 15-ER-3877–78. The Department ultimately
fired the Employees, some in October 2021 and others in
November 2021. 13-ER-3369; 12-ER-3036; 13-ER-3445;
13-ER-3250; 12-ER-3036. 2
The Employees sued the Department and five of its
officers in federal court. (As a shorthand, we refer to the
Defendants as “the Department.”) The Employees asserted
violations of Title VII of the Civil Rights Act of 1964 and
the Washington Law Against Discrimination (WLAD), as
well as violations of the federal and state constitutions. 18-
ER-4594–600; 18-ER-4604–08. The Department moved for

2
Five non-appealing plaintiffs fully completed the Department’s process
yet were not reassigned. For example, the Department initially granted
Ruthana Shirley and Jonathan Hone’s requests to be accommodated by
teleworking or masking and distancing. 1-ER-28–29; 5-ER-966. But
the Department later rescinded their accommodations on the grounds that
their jobs “must at times be done in the physical presence of others,” and
offered them possible reassignment. 1-ER-28-29. Shirley and Hone
both requested reassignment, but they were both told that no position was
available for them. Id. The Department then fired them. Id. During this
process, Shirley and Hone had also filed grievances through their
union. Id. Shirley’s arbitrator found that the Department had not made
a good faith effort to find a reasonable accommodation for her, and
Hone’s arbitrator found that the Department had not conducted an
individualized assessment of whether it could reasonably accommodate
him. Id. Thus, the arbitrators concluded that the Department had
violated the law and awarded Shirley and Hone reinstatement to their
jobs. Id.
CHERRY V. WA DEP’T OF FISH & WILDLIFE 9

summary judgment with respect to those claims. The district
court granted that motion.
In dismissing the Employees’ Title VII and WLAD
claims, the district court assumed the Employees had
“established a prima facie case of Title VII failure to
accommodate.” 1-ER-47. The district court then reasoned
that “the burden shift[ed] to Defendants [the Department and
its officers] to show that ‘they initiated good faith efforts to
engage in the interactive process or that they could not do so
due to undue hardship.’” Id. (quoting Dunbar v. Twentieth
Century Fox Television, No. CV 22-1075-DMG (JCX),
2024 WL 2107712, at *7 (C.D. Cal. Mar. 8, 2024)). “[T]he
accommodations process is a two-way street that is premised
on ‘bilateral cooperation’ between the employer and
employee,” the district court said; “each side is required to
contribute to efforts to formulate a reasonable
accommodation.” 1-ER-48 (citing Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 69 (1986)). The district court found
that the Department offered a “reassignment process,” but
the Employees “did not fully participate in” it. 1-ER-49. 3
On these facts, the district court concluded, the Employees
did not state “a failure to accommodate claim under Title VII
or the WLAD.” Id. The district court treated the Title VII
and WLAD claims as rising or falling together. 1-ER-32–
33; see also Suarez v. State, 552 P.3d 786, 795 (Wash. 2024).
The district court accordingly dismissed “as a matter of law”
the Employees’ Title VII and WLAD claims and granted
summary judgment for the Department. 1-ER-49.

3
One did not meet the deadline for requesting reassignment (Frady); two
others did not seek reassignment (Cherry and Lopez); one did not submit
a resume for reassignment (Anderson); and another withdrew from the
reassignment process (DeBoer). 1-ER-49.
10 CHERRY V. WA DEP’T OF FISH & WILDLIFE

The district court concluded that two of the Employees’
Title VII claims failed for procedural reasons as well. 1-ER-
43. The district court held that Cherry failed to exhaust
administrative remedies with the Equal Employment
Opportunity Commission and that Lopez failed to sue in
court within the requisite 90 days of receiving her right-to-
sue letter. Id.
In addition to dismissing the Title VII and WLAD
claims, the district court granted summary judgment for the
Department on the Employees’ federal constitutional claims.
The Employees had sued the Department and several of its
officers under 42 U.S.C. § 1983, seeking both money
damages for violations of the Free Exercise Clause, the Due
Process Clauses of the Fifth and Fourteenth Amendments,
and the Equal Protection Clause of the Fourteenth
Amendment, and an injunction against further “harassment.”
18-ER-4609–10; 5-ER-941–46. Because the Employees did
not allege an ongoing violation or seek prospective
injunctive relief sufficient to invoke the Ex parte Young
exception to sovereign immunity, the district court
dismissed the Employees’ federal constitutional claims. 1-
ER-61–68.
The district court also granted summary judgment for the
Department on the Employees’ state constitutional claims.
The Employees had sued the Department and the officers for
money damages for deprivation of the right of privacy under
article I, section 7 of the Washington Constitution, which the
Employees argued protects the right of bodily autonomy and
the right to refuse vaccines. 18-ER-4594–98. The district
court concluded that Washington State does not provide a
private right of action for damages under article I, section 7,
and thus dismissed the Employees’ state constitutional
claims. 1-ER-68–69.
CHERRY V. WA DEP’T OF FISH & WILDLIFE 11

The district court also ruled on certain matters relating to
discovery that are also the subject of this appeal. The district
court granted the Department’s motions to exclude the
testimony of three of the Employees’ witnesses: Harvey
Risch, Lisa Brock, and John Cary. Dr. Harvey Risch, an
epidemiologist, submitted expert reports opining that
COVID-19 vaccine mandates failed to recognize that post-
infection natural immunity is just as good (if not better) than
vaccination. 1-ER-15. Mrs. Lisa Brock, a human resources
professional, was offered by the Employees to help explain
how HR departments in large institutions process exemption
and accommodation requests. 6-ER-1466–67. And Dr. John
Cary, a rebuttal expert, was offered by the Employees
seventeen days after the district court’s rebuttal deadline. 1-
ER-17. The district court excluded Dr. Risch because it
found some of his testimony irrelevant and the rest
unreliable, 1-ER-20–23; Mrs. Brock because it found that
she did not review sufficient documents and advanced
inadmissible legal conclusions, 1-ER-23–24; and Dr. Cary
because it found that the Employees served his report late
without requesting an extension, 1-ER-24–25. The district
court also granted the Department’s motion for a protective
order to prevent the Employees from taking a Federal Rule
of Civil Procedure 30(b)(6) deposition that contained 31
topics and 450 subtopics. 17-ER-4501–03.
The Employees appeal the district court’s grant of
summary judgment and its discovery orders. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s grant of summary judgment. Brown v. Alaska
Airlines, Inc., 179 F.4th 707, 717 (9th Cir. 2026). In
reviewing a grant of summary judgment, we view the
evidence in the light most favorable to the nonmoving party
(here, the Employees). Id. We review for abuse of
12 CHERRY V. WA DEP’T OF FISH & WILDLIFE

discretion orders excluding expert testimony, Kennedy v.
Collagen Corp., 161 F.3d 1226, 1227 (9th Cir. 1998), and
orders protecting parties from deposition notices, Garris v.
Fed. Bureau of Investigation, 937 F.3d 1284, 1291 (9th Cir.
2019).
II.
A.
Title VII of the Civil Rights Act of 1964 makes it
unlawful for employers covered by the Act “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 . . . religion.” 42
U.S.C. § 2000e-2(a)(1). The term “religion” under the
statute “includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate [] 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).
Construing these two provisions together, we have made
clear that “Title VII requires an employer to reasonably
accommodate the religious beliefs and practices of its
employees, short of incurring an ‘undue hardship.’” Am.
Postal Workers Union v. Postmaster Gen., 781 F.2d 772,
775 (9th Cir. 1986) (citation omitted); see also Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977) (“The
intent and effect of this definition [of ‘religion’] was to make
it an unlawful employment practice under [section]
703(a)(1) [of the Civil Rights Act] for an employer not to
make reasonable accommodations, short of undue hardship,
CHERRY V. WA DEP’T OF FISH & WILDLIFE 13

for the religious practices of his employees and prospective
employees.”).
Once an employee has made a prima facie showing of
religious discrimination, “the burden shifts to the employer
to prove that it made good faith efforts to accommodate that
employee’s religious belief.” Am. Postal Workers, 781 F.2d
at 776. That “requires an employer to accommodate the
religious beliefs of an employee in a manner which will
reasonably preserve that employee’s employment status, i.e.,
compensation, terms, conditions, or privileges of
employment.” Id. Thus, if “an employment situation creates
a religious conflict for a particular employee,” we have said,
“the employer must take some initial step to reasonably
accommodate the religious belief of that employee.” Id.
At this juncture, two possibilities emerge. If “the
accommodation proposed by the employer” does not
eliminate the conflict, the employer “must implement an
alternate accommodation proposed by the employee, unless
implementation of that accommodation would cause ‘undue
hardship’ to the employer.” Id. (citation omitted). But
“[w]here an employer proposes an accommodation which
effectively eliminates the religious conflict faced by a
particular employee,” the “inquiry under Title VII reduces to
whether the accommodation reasonably preserves the
affected employee’s employment status.” Id. at 776–77. If
the accommodation proposed by the employer does
reasonably preserve an employee’s status, then the employer
has met its burden; if the proposed accommodation does not,
then the employer has not satisfied its duties under Title VII.
Id. at 777.
This conclusion, we have said, “is consistent with the
design” of Title VII’s religious-accommodation
14 CHERRY V. WA DEP’T OF FISH & WILDLIFE

requirement. Id. While “the statutory burden to
accommodate rests with the employer, the employee has a
correlative duty to make a good faith attempt to satisfy his
needs through means offered by the employer.” Id. “In other
words, a reasonable accommodation need not be on the
employee’s terms only.” Id. It is in this context that we have
described Title VII as “premised on ‘bilateral cooperation’”
or “mutual cooperation.” Id. (citation omitted); see also
Ansonia, 479 U.S. at 69. “An employee’s ‘concomitant
duty’ to cooperate, however, arises only after the employer
has suggested a possible accommodation[.]” Heller v. EBB
Auto Co., 8 F.3d 1433, 1440 (9th Cir. 1993) (emphasis in
original); see also Horvath v. City of Leander, 946 F.3d 787,
791 (5th Cir. 2020) (“The employer’s offer of a reasonable
accommodation triggers an accompanying duty for the
employee” to cooperate.).
B.
The district court misapplied these rules when it
concluded, as a matter of law, that the Department met its
burden under Title VII. The Department merely invited the
Employees to participate in a “reassignment process” with
the caveat that “opportunities may be limited,” which the
Employees—perhaps understandably—did not complete.
Title VII requires that the Department take the initial step of
proposing a reasonable accommodation that would then
trigger any concomitant duty on the employee’s part to
cooperate. Am. Postal Workers, 781 F.2d at 776; Heller, 8
F.3d at 1440. We disagree with the district court’s
conclusion that offering this reassignment process was, as a
matter of law, an offer of a reasonable accommodation.
To be sure, the Employees are not entitled to their own
preferred accommodation, but that presupposes the
CHERRY V. WA DEP’T OF FISH & WILDLIFE 15

Department’s own offer of a reasonable accommodation. As
an initial matter, the Department must offer an
accommodation—an alternative position or arrangement—
that eliminates the asserted conflict between the employee’s
religious beliefs and the employee’s current job. The first
step in the “negotiat[ing]” process must be the Department’s
proposal of an accommodation, which can then be evaluated
for its “reasonableness”—i.e., whether the accommodation
reasonably preserves the employee’s pay and other
conditions of employment. Am. Postal Workers, 781 F.2d at
776; Heller, 8 F.3d at 1440.
Here, because the Department’s initial offer was nothing
more than an opportunity for reassignment, couched in
language that made success appear unlikely, we cannot say
that it has made a good faith effort to reasonably
accommodate the Employees’ religion as a matter of law.
An employee’s duty to cooperate under Title VII is only
triggered once the employer makes an initial offer of a
reasonable accommodation. Accordingly, because there is
an issue of fact as to whether the Department took that initial
step, we cannot say that Title VII mandated “bilateral
cooperation” in this case. Here, it is unclear that offering a
“reassignment process”—about which we have little factual
information (infra at 20–21)—is enough to trigger the duty
to cooperate.
The district court’s contrary conclusion rests on a
mistaken view of the legal standard. In the district court’s
view, the Department definitively satisfied its Title VII
duties by showing that it “initiated good faith efforts to
engage in the interactive process or that [it] could not do so
due to undue hardship.” 1-ER-47 (citation omitted). That
improperly relaxes the actual standard. Efforts “to engage
in the interactive process” is not the test; rather, the test is
16 CHERRY V. WA DEP’T OF FISH & WILDLIFE

for the “employer to prove that it made good faith efforts to
accommodate [the] employee’s religious belief.” Am. Postal
Workers, 781 F.3d at 776 (emphasis added) (citation
omitted). The district court’s erroneous shift is subtle but
substantial: engaging in a process may be different from
proposing an accommodation, and whether the process here
constituted a reasonable accommodation is best left to a jury.
We cannot say that offering this reassignment process
constituted offering an accommodation as a matter of law. 4
The district court erred in reading American Postal
Workers and Ansonia to conclude that the Department’s
offer to engage in a mere process was sufficient to satisfy
Title VII as a matter of law. This court’s decision in
American Postal Workers concluded that the employer’s
proposed accommodation—a transfer to a different job—
“effectively removed the religious conflict facing” the
employees; the court did not hold that only offering a
reassignment process was sufficient. 781 F.2d at 777. And
in Ansonia, too, the Supreme Court addressed a proposed
accommodation (unpaid leave)—not just a process—in

4
The district court appeared to mistakenly import an “interactive
process” standard from a different scheme altogether—the Americans
with Disabilities Act. See 29 C.F.R. § 1630.2(o)(3) (“To determine the
appropriate reasonable accommodation it may be necessary for the
covered entity to initiate an informal, interactive process with the
individual with a disability in need of the accommodation.”). The district
court cited Dunbar v. Twentieth Century Fox Television, 2024 WL
2107712, at *7 (C.D. Cal. Mar. 8, 2024), an unpublished district court
case. 1-ER-47. But Dunbar relied on another district court decision,
which did not apply an “interactive process” standard for Title VII
claims. 2024 WL 2107712, at *7 (citing O’Hailpin v. Hawaiian Airlines,
Inc., 583 F. Supp. 3d 1294, 1309 (D. Haw. 2022)). Instead, the court in
O’Hailpin addressed the phrase “interactive process” in the context of an
ADA claim. 583 F. Supp. 3d at 1311 n.12.
CHERRY V. WA DEP’T OF FISH & WILDLIFE 17

determining whether the accommodation was reasonable.
479 U.S. at 70–71.
The Department for its part seizes on language in
American Postal Workers—that the employee must “make a
good faith attempt to satisfy his needs through means offered
by the employer”—to excuse itself from having to propose
an actual accommodation. Answering Br. at 24 (quoting Am.
Postal Workers, 781 F.2d at 777). But as the discussion
above makes clear, the “means offered by the employer” in
American Postal Workers referred to a proposal by the
employer of a reasonable accommodation (not just the
possibility of a reassignment through a process). See Am.
Postal Workers, 781 F.2d at 777 (citing Brener v. Diagnostic
Ctr. Hosp., 671 F.2d 141 (5th Cir. 1982)); see also Brener,
671 F.2d at 145–46 (finding the employer “took active steps
to accommodate” the employee by providing a “rotating
shift scheduling system” whereby employees could trade
schedules).
The Department relies also on a few out-of-circuit cases
for the proposition that inviting participation in a mere
reassignment process is enough to trigger an employee’s
duty to cooperate. Answering Br. at 24–26. None of those
cases persuades the court to adopt the Department’s reading
of Title VII.
The Department first cites Walden v. Centers for Disease
Control & Prevention, 669 F.3d 1277 (11th Cir. 2012),
abrogated in part on other grounds by Equal Employment
Opportunity Commission v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768 (2015). In Walden, the employee was a
counselor who refused to provide relationship counseling to
same-sex couples on religious grounds. Id. at 1280. The
employee’s supervisor suggested several options that would
18 CHERRY V. WA DEP’T OF FISH & WILDLIFE

allow the employee to stay in her position and avoid any
conflict with her religious beliefs, but the employee rejected
those approaches. Id. at 1281. The employee was eventually
laid off, but the employer provided the employee with
resources to find another job within the company, and the
layoff designation allowed the employee to retain her tenure
with the company if she found a new position within one
year. Id. at 1282. Though there were no positions available
in the same city, “other positions were available” in different
cities, and the employee did not apply to any of the available
positions. Id. at 1294. The Eleventh Circuit found the
employer had provided the employee with a reasonable
accommodation as a matter of law when it “encouraged her
to obtain new employment with the company[,] offered her
assistance in obtaining a new position,” and allowed her to
retain her tenure had the employer hired her in another
position. Id.
The Department also cites Bruff v. North Mississippi
Health Services, Inc., 244 F.3d 495 (5th Cir. 2001), a case
with facts like those in Walden. There too, the employee was
a counselor who refused to provide counseling on same-sex
relationships on religious grounds. Id. at 497. Unable to
accommodate the employee in her original position, the
employer suggested a transfer to a Christian or pastoral
counseling position, but the employee “declined to even
consider” such a transfer. Id. at 498, 502. The employee
was encouraged to request a transfer and apply to a new
position, was “advised of other available positions,” and was
offered extensive assistance from the employer’s in-house
employment counselor. Id. at 498, 502. The employee
applied to one available position but was not selected and
“declined to apply for [a] second counselor position.” Id. at
502–03. The Fifth Circuit found the employee had not met
CHERRY V. WA DEP’T OF FISH & WILDLIFE 19

her duty to cooperate in achieving an accommodation. Id. at
503.
Finally, the Department cites Shelton v. University of
Medicine and Dentistry of New Jersey, 223 F.3d 220 (3d Cir.
2000). There, the employee (a nurse who refused to
participate in abortions) was offered a “lateral transfer” to
the “Newborn ICU” where she would not have to participate
in abortions. Id. at 223. The employer also invited the
employee to contact its HR department to help her identify
additional available positions. Id. The Third Circuit held
that the offer of a lateral transfer constituted a reasonable
accommodation. Id. at 227. The court also held that the
employee failed to satisfy her duty to cooperate when she
refused to meet with HR, reasoning that there was no support
for the employee’s argument that a transfer to another
department was not viable. Id. at 227–28. Accordingly, her
refusal to cooperate was not justified. Id. at 228.
Although the out-of-circuit cases bear some similarities
to our case in that the employee was offered an opportunity
to apply for another position, the cases are not analogous. In
Bruff and Shelton, the employers offered the employees
concrete options for transfer. In Walden, the employer
offered several solutions to the employee’s religious conflict
before she was removed from her position. In all three cases,
there were available positions to which the employees chose
not to apply. Here, by contrast, the Employees were not
offered any available positions—in fact, the Department told
employees that reassignment opportunities “may be limited”
and provided them with resources on unemployment and
retirement. See, e.g., 13-ER-3256–57. Unlike the employers
in Walden, Bruff, and Shelton, the record does not show that
the Department actively encouraged the Employees to apply
to available positions (perhaps the opposite). At any rate,
20 CHERRY V. WA DEP’T OF FISH & WILDLIFE

the standard for what constitutes a reasonable
accommodation in the Ninth Circuit comes from American
Postal Workers. See 781 F.2d at 776–77 (“[T]he inquiry
under Title VII [is] whether the accommodation reasonably
preserves the affected employee’s employment status.”).
Irrespective of the holdings in our sister circuits, we cannot
say the Department’s process met this standard as a matter
of law.
Our conclusion is reinforced all the more by the
Department’s failure to offer any material facts suggesting
that its “reassignment process” would likely yield a
reasonable accommodation. And the bare-bones facts that
the Department does offer do little to assure us of such a
prospect. The State’s data about its “reassignment process”
show just a 14 percent chance of placement into some job.
4-ER-794. But what kinds of jobs, how much those jobs
paid, whether they eliminated the employees’ religious
conflicts—we do not know. The Department’s own witness
who worked in HR, Moore, was unable to provide details.
She testified that she did not investigate “how many possible
reassignment positions were available,” claiming that “it’s
difficult to know the numbers” of positions. 14-ER-3823–
24. That is wholly insufficient to satisfy the Department’s
burden of showing, as a matter of law on summary judgment,
“that it made a good faith effort to accommodate” each of
the employee’s religious beliefs. Am. Postal Workers, 781
F.2d at 776.
The only specific examples of reassignment in the record
cut against the Department. The district court found it
“undisputed” that, of the six then-plaintiffs who fully
completed the reassignment process, five were told that no
possibility of reassignment was available to them. 1-ER-49–
50. For example, Shirley and Hone received
CHERRY V. WA DEP’T OF FISH & WILDLIFE 21

accommodations that were later rescinded because their jobs
“must at times be done in the physical presence of others”—
the same reason the appealing Employees were denied
accommodations. 1-ER-28–29. Combined with the fact that
the Department was only willing to transfer employees to
jobs that allowed “100% telework and/or require[d] no in-
person contact,” 14-ER-3694, successful reassignment of
the appealing Employees appeared all the more unlikely.
The sixth then-plaintiff, who completed the process, was
offered a job that reduced his current salary by half, which
he “could not afford to live on” (1-ER-49)—an offer that
hardly “preserve[s]” that employee’s “compensation.” Am.
Postal Workers, 781 F.2d at 776. On this record, summary
judgment for the Department was improper.
The scheme that Title VII sets forth is straightforward.
The Department has a choice. Either it proposes a
reasonable accommodation (which triggers the employee’s
duty to cooperate), or it must prove that a reasonable
accommodation would produce an undue hardship on the
conduct of the Department’s business.
These are not parchment demands. The statutory
guarantee of religious accommodation provided by
Congress in Title VII must be taken seriously and rigorously
enforced by courts. With respect to “undue hardship,” the
Supreme Court clarified in Groff v. DeJoy that “‘undue
hardship’ is shown when a burden is substantial in the
overall context of an employer’s business.” 600 U.S. 447,
468 (2023). “[A]n 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 (citation omitted). This is a “fact-
specific inquiry,” and courts must “take[] into account all
relevant factors in the case at hand, including the particular
22 CHERRY V. WA DEP’T OF FISH & WILDLIFE

accommodations at issue and their practical impact in light
of the nature, size[,] and operating cost of [an] employer.”
Id. at 468, 470–71 (internal quotation marks omitted).
Assertions of undue hardship are not enough. There
must be a showing—with facts and evidence—of what the
costs on the employer are. And not only what they are, but
what they are in relation to its overall business. At a
minimum, a showing of proportion must be made in order to
assess whether any hardship would be “undue.” Otherwise,
as Groff warned, judges would be put in the position of
merely rubber-stamping claims of undue hardship, returning
us to a time when courts would reject Title VII religious-
accommodation claims whenever the employer could claim
that making a reasonable accommodation would impose a
cost that was merely more than de minimis. Id. at 468. No
more, the Supreme Court made clear.
The Department does not argue on appeal that
accommodating the Employees would impose an undue
hardship. Instead, the Department asserts that it made a
reasonable accommodation by offering a process that holds
out a mere possibility of an accommodation. As discussed,
the Department has failed to show that it offered a reasonable
accommodation as a matter of law. We reject the
Department’s attempt to loosen our reasonable-
accommodation standard.
For the reasons stated, we reverse the district court’s
grant of summary judgment for Defendants and against most
of the Employees (Anderson, DeBoer, and Frady) with
respect to their Title VII claims, and we reverse the district
court’s grant of summary judgment for Defendants and
against all of the Employees with respect to their WLAD
claims. We find there is an issue of fact as to whether the
CHERRY V. WA DEP’T OF FISH & WILDLIFE 23

Department offered the Employees a reasonable
accommodation, and remand for proceedings consistent with
this opinion. The Title VII claims and WLAD claims
generally rise and fall together, except that Title VII claims
must clear certain procedural hurdles (such as exhaustion
with the EEOC) before they can be heard. B.K.B. v. Maui
Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing 42
U.S.C. § 2000e–5(b)) (holding that an employee must file “a
timely charge with the EEOC, or the appropriate state
agency”), abrogated on other grounds by Fort Bend Cnty. v.
Davis, 587 U.S. 541 (2019); Payan v. Aramark Mgmt. Servs.
Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (holding
that an employee must “file suit within ninety days” of the
date the EEOC dismisses a claim). For two of the
Employees (Cherry and Lopez) who failed to meet the
procedural requirements for bringing a Title VII claim in
federal court, we affirm the district court’s grant of summary
judgment for Defendants with respect to those Employees’
Title VII claims.
III.
The Employees also brought federal and state
constitutional claims, but those claims were properly
dismissed. Consider first the federal constitutional claims.
The Employees sued the Department and its officers under
42 U.S.C. § 1983, seeking (among other relief) money
damages for violations of the Free Exercise Clause, the Due
Process Clauses of the Fifth and Fourteenth Amendments,
and the Equal Protection Clause of the Fourteenth
Amendment. 18-ER-4609–10; 5-ER-941–46. The district
court granted summary judgment to the Department, holding
that sovereign immunity barred the damages claims against
the Department and the officers in their official capacities,
and qualified immunity barred the damages claims against
24 CHERRY V. WA DEP’T OF FISH & WILDLIFE

the officers in their personal capacities. 1-ER-61–68. On
appeal, the Employees do not challenge this ruling. Rather,
the Employees now argue that their claims against the
officers in their official capacities are not barred because the
Complaint sought not only damages, but also an injunction:
the reinstatement of the Employees’ jobs.
The Employees have forfeited this argument. The
Employees did not seek reinstatement in their Complaint;
nor did they press this argument before the district court.
The Employees sought damages in their Complaint, and they
also sought to enjoin “harassment” and other future
retaliation (injunctive relief that they do not pursue on
appeal). 18-ER-4609–10. But they did not seek
reinstatement. The Employees say that they asked for “other
and further relief that is just and equitable,” 18-ER-4610, but
that catch-all clause is not enough to preserve a claim for
reinstatement. The Employees’ reliance on Health Freedom
Defense Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th Cir.
2025) (en banc), is misplaced. There, this court did not
address sovereign immunity; rather, it held that a challenge
to a school district’s mandatory vaccination policy was not
moot because, even though the school-district had rescinded
its policy, a court could still issue “reinstatement” of the
employees who were terminated pursuant to that policy. Id.
at 1026–27. The employees sought to enjoin the school
district from enforcing its policy and “such other and further
relief as the Court may deem just and proper,” and its
complaint contained “allegations that individual Plaintiffs
have been terminated under the Policy and have not been
reinstated to their prior positions.” Id. at 1025–26. This
court thus held that the complaint “fairly encompasse[d] a
request for reinstatement.” Id. at 1026. By contrast here, the
Employees’ Complaint (again, seeking primarily damages
CHERRY V. WA DEP’T OF FISH & WILDLIFE 25

and an injunction against “harassment,” which they have
abandoned on appeal) contained no such allegations that
could fairly encompass reinstatement. We therefore affirm
the district court’s grant of summary judgment denying the
Employees’ federal constitutional claims.
The Employees’ state constitutional claims fail, too. As
a threshold matter, the Employees argue that it was improper
for the district court to retain jurisdiction over their state
constitutional claims after dismissing their federal claims.
But district courts have supplemental jurisdiction over state
claims that “are so related to” federal claims “that they form
part of the same case or controversy.” 28 U.S.C. § 1367(a).
District courts “may decline to exercise” jurisdiction over
supplemental claims when they have “dismissed all” federal
claims. Id. § 1367(c)(3) (emphasis added). But we do not
see any abuse in the district court’s exercise of discretion
here to retain jurisdiction over the state-law claims. The
Employees cite Royal Canin U.S.A., Inc. v. Wullschleger,
604 U.S. 22 (2025), but that case held that a federal court
lacked jurisdiction over state-law claims when, after
removal, the plaintiff amends the complaint to delete all the
federal-law claims. Id. at 25. Here, the Employees did not
delete the federal-law claims; rather, the claims were
dismissed. Indeed, Royal Canin noted the difference:
“[w]hen federal claims are dismissed by the district court, as
in § 1367(c)(3), an appellate court may yet revive them; but
that cannot happen when the plaintiff has excised them
through a proper amendment.” Id. at 33. Thus, the district
court properly retained jurisdiction.
On the merits, the district court properly dismissed the
state constitutional claims. In the district court, the
Employees sought damages against the State for the
deprivation of various state rights. Before us, the Employees
26 CHERRY V. WA DEP’T OF FISH & WILDLIFE

press only the right of privacy under the Washington
Constitution, which they argue protects the right of bodily
autonomy and the right to refuse vaccines. See Wash. Const.
art. I, § 7 (“No person shall be disturbed in his private affairs,
or his home invaded, without authority of law.”). But the
Washington Supreme Court “has refused to create a
constitutional cause of action for governmental privacy
invasions” under article I, section 7. Youker v. Douglas
Cnty., 327 P.3d 1243, 1245 (Wash. Ct. App. 2014) (citing
Reid v. Pierce Cnty., 961 P.2d 333, 342–43 (Wash. 1998)).
The Employees argue that Washington courts have created a
cause of action where the State can be sued for damages for
some intentional invasion-of-privacy torts. See Opening Br.
at 42; Youker, 327 P.2d at 1245. But the Employees bring
no common-law tort—only constitutional right-of-privacy
claims. See 18-ER-4594–98. The district court did not err
in rejecting those claims.
IV.
Finally, the Employees challenge on appeal the district
court’s discovery-related orders. First, the Employees
contest the district court’s exclusion of three of their
proffered experts. Second, they challenge the district court’s
issuance of a protective order that prohibits their taking a
Federal Rule of Civil Procedure 30(b)(6) deposition. We
review these decisions for abuse of discretion, and we find
no such abuse here. See Collagen Corp., 161 F.3d at 1227.
A.
Before admitting expert testimony into evidence, the
district court must find it both “relevant” and “reliable”
under Federal Rule of Evidence 702. Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 589 (1993). The expert
must help the trier of fact understand the evidence or
CHERRY V. WA DEP’T OF FISH & WILDLIFE 27

determine a fact in issue (Fed. R. Evid. 702(a)); he must base
his testimony on sufficient facts or data (702(b)) and on
reliable principles and methods (702(c)); and he must have
reliably applied those principles and methods to the facts of
the case (702(d)).
The district court did not abuse its discretion in
concluding that the three experts did not meet the Daubert
standard here. The first expert was Dr. Harvey Risch who
submitted two expert reports—a report on the efficacy of the
COVID-19 vaccines and vaccine mandates, and a rebuttal
report. 1-ER-15. He based his reports, however, on
evidence from after the Employees were terminated or
resigned. The Employees had all left the Department by
November 2021. 13-ER-3369; 12-ER-3036; 13-ER-3445;
13-ER-3250. Dr. Risch used data (from the Centers for
Disease Control and Prevention) through the end of
December 2021 to generate a higher—and thus less than
reliable—breakthrough vaccination rate (the percentage at
which fully vaccinated people can still catch the disease)
than had the timeline been a month shorter. Risch Report,
ECF No. 64-1 at 11–12 (filed Feb. 13, 2025), Shirley, et al.
v. Washington State Dep’t of Fish & Wildlife, No. 3:23-cv-
05077-DGE; see 1-ER-22. The district court did not abuse
its discretion in excluding Dr. Risch’s opinions.
Nor was it an abuse of discretion to exclude Mrs. Lisa
Brock. Mrs. Brock worked in Human Resources for over 40
years (6-ER-1467), and in producing her report, she
reviewed “the first Complaint, the arbitration decisions of”
certain plaintiffs, emails approving the accommodation
requests of certain plaintiffs, denial letters for certain
plaintiffs, and other emails. 1-ER-16. But Mrs. Brock
concededly did not review the Department’s
accommodations policies or the Employees’ job
28 CHERRY V. WA DEP’T OF FISH & WILDLIFE

descriptions. Id. She relied instead upon “the well-
recognized guidelines” of the “Society for Human Resource
Management” and of state and federal governmental
agencies including the EEOC. 6-ER-1466–67. The district
court did not abuse its discretion in concluding that Mrs.
Brock’s opinion lacked reliability where she did not review
the accommodations policies that the Department had in
place.
We likewise find no abuse of discretion with respect to
the exclusion of Dr. John Cary’s report. The district court
had set an expert’s rebuttal report deadline of January 14,
2025, but the Employees submitted Dr. Cary’s report
seventeen days after that deadline. “Expert reports must be
disclosed ‘at the times and in the sequence that the court
orders.’” Key v. Qualcomm Inc., 129 F.4th 1129, 1143
(9th Cir. 2025) (quoting Fed. R. Civ. P. 26(a)(2)(D)). And
when disclosure of an expert report is not timely made, “the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). The Employees concede that Dr. Cary’s
report was not timely disclosed but argue that the delay was
justified because his report was offered in response to the
Department’s expert witness disclosure, which the
Employees contend was late. But the Employees did not
seek to exclude the Department’s witness, though they were
free to do so just as the Department moved to exclude theirs.
The district court did not abuse its discretion in excluding
Dr. Cary’s report.
B.
Finally, the Employees seek to overturn the district
court’s protective order that prevents the Employees from
CHERRY V. WA DEP’T OF FISH & WILDLIFE 29

taking a Rule 30(b)(6) deposition. We review protective
orders from deposition notices for abuse of discretion.
Garris, 937 F.3d at 1291. The Employees issued a notice
with 31 topics (the district court counted 450 including
subtopics), and the Department sought protection from it
because the Department considered the notice “overbroad,
unduly burdensome,” and “disproportionate.” 17-ER-4501.
Because such notices are subject to Rule 26 proportionality
standards and the district court has a “duty to protect” parties
from needlessly burdensome notices, the district court issued
a protective order. 17-ER-4502–03. On this record, we find
no abuse of discretion with such an issuance.
* * *
For the reasons discussed, we reverse the district court’s
order granting summary judgment for the Department with
respect to Anderson’s, DeBoer’s, and Frady’s Title VII
claims and all five Employees’ WLAD claims; affirm the
district court’s order granting summary judgment for the
Department with respect to Lopez’s and Cherry’s Title VII
claims and all five Employees’ federal and state
constitutional claims; affirm the district court’s orders
excluding the Employees’ three experts; affirm the district
court’s issuance of the protective order; and remand for
proceedings consistent with this opinion.
REVERSED in part, AFFIRMED in part, AND
REMANDED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11422128. Public record. Not legal advice.