Amicus Curiae Brief — David Petersen, et al., Petitioners v. Snohomish Regional Fire and Rescue

No. 25-1210

In the Supreme Court of the United States

DAVID PETERSEN, ET AL.,

Petitioners,

v.

SNOHOMISH REGIONAL FIRE & RESCUE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF OF AMICI CURIAE CURRENT AND

FORMER MILITARY SERVICEMEMBERS

HUNTER DOSTER, ROBERT SCHELSKE, AND

NICKOLAS KUPPER IN SUPPORT OF

PETITIONERS

WALKER MOLLER

Counsel of Record

SIRI & GLIMSTAD LLP

1005 Congress Avenue,

Suite 925-C36

Austin, TX 78701

(888) 747-4529

wmoller@sirillp.com

LINLEY WILSON

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

2555 East Camelback Rd.

Phoenix, AZ 85016

Counsel for Amici Curiae

May 22, 2026

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................5

I.

Petersen’s Speculative Hardship

Test Is a Radical Outlier,

Demanding Reversal. ............................5

II.

Petersen Authorizes Courts to

Resolve Clear Factual Disputes

As a Matter of Law. .............................10

III.

Petersen Encourages Courts To

Ignore Comparably Risky

Exceptions. ...........................................15

CONCLUSION ..........................................................20

i

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. General Dynamics Convair Aerospace

Div., 589 F.2d 397 (9th Cir. 1978) .......................... 8

Bobnar v. AstraZeneca Pharm. LP,

758 F. Supp. 3d 690 (N.D. Ohio 2024) ........... 12, 14

DeMaria v. N.Y. State Unified Court Sys.,

no. 23 Civ. 3627, 2025 U.S. Dist. LEXIS 153487

(S.D.N.Y. Aug. 8, 2025) ............................. 12, 14, 18

Doster v. Kendall,

48 F.4th 608 (6th Cir. 2022) ............................. 1, 17

Doster v. Kendall,

54 F.4th 398 (6th Cir. 2022) ................................... 2

Draper v. U.S. Pipe & Foundry Co.,

527 F.2d 515 (6th Cir. 1975) ............................... 5, 7

EEOC v. Townley Engineering & Manufacturing Co.,

859 F.2nd 610 (9th Cir. 1988) ................................ 8

Groff v DeJoy,

600 U.S. 447 (2023)………3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

13, 14, 15, 16, 17, 19

Hebrew v. Tex. Dep’t. of Crim. Just.,

80 F.4th 717 (5th Cir. 2023) ....................... 9, 13, 18

Kendall v. Doster,

No. 23-154, 2023 U.S. LEXIS 4827

(Dec. 11, 2023) ......................................................... 2

ii

Kluge v. Brownsburg Cmty. Sch. Corp.

150 F.4th 792 (7th Cir. 2025) ............................... 14

Naylor v. Cnty. of Muscatine,

151 F.4th 973 (8th Cir. 2025) ............................... 14

Petersen v. Snohomish Reg'l Fire & Rescue,

150 F.4th 1211

(9th Cir. 2025)………………3, 4, 5, 6, 7, 8, 9, 10, 11,

12, 13, 15, 16, 18, 19

Rodrique v. Hearst Commc’ns,

126 F.4th 85 (1st Cir. 2025 ................................... 13

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................. 17

Schelske v. Austin,

649 F. Supp. 3d 254 (N.D. Tex. 2022) .......... 1, 2, 17

Smith v. City of Atlantic City,

138 F.4th 759 (3d Cir. 2025) ................................. 13

Sturgill v. UPS,

512 F.3d 1024 (8th Cir. 2008 .............................. 5, 8

Tandon v. Newsom,

593 U.S. 61 (2021) ........................................... 16, 17

Toledo v. Nobel-Sysco, Inc.,

892 F.2d 1481 (10th Cir. 1989) ............................... 8

U.S. Navy Seals 1-26 v. Biden,

27 F.4th 336 (5th Cir. 2022) ............................. 2, 17

iii

Williams v. Legacy Health,

No. 24-5977, 2026 U.S. App. LEXIS 13121

(9th Cir. May 6, 2026) ..................................... 14, 15

Codes

42 U.S.C. § 2000e (“Title VII”) .............3, 4, 5, 6, 7, 17,

18, 19

42 U.S.C. § 2000e(j) .................................................... 7

42 U.S.C. § 2000bb-1, et seq (“RFRA”),.................... 16

Rules

Fed. R. Civ. P. Rule 56……........3, 4, 5, 10, 11, 12, 13,

14, 15, 19

iv

Amici Curiae1 respectfully submits this brief in

support of Petitioners and asks that Petitioners’

Petition for Writ of Certiorari be granted.

INTEREST OF AMICI CURIAE

Amici are three current and former military

servicemembers from the Army and Air Force who

successfully challenged a federal government

mandate requiring them to receive COVID-19

vaccinations in conflict with their sincerely held

religious beliefs. Amici Army Sergeant Robert

Schelske decided to challenge the mandate because

the military was denying virtually all religious

exemption requests, while simultaneously granting

“thousands of exemptions on secular (i.e., medical or

administrative) grounds.” Schelske v. Austin, 649 F.

Supp. 3d 254, 283 (N.D. Tex. 2022). Similarly, Amici

Air Force Second Lieutenant Hunter Doster, who had

recently graduated from the Air Force Academy,

challenged the Air Force’s COVID-19 vaccine

mandate where medical and administrative

exemptions were granted, but the Air Force was

denying virtually “all requests for religious

exemption[].” Doster v. Kendall, 48 F.4th 608, 613

(6th Cir. 2022).

The military’s vaccination mandates were

ultimately struck in the courts. See, e.g., U.S. Navy

Seals 1-26 v. Biden, 27 F.4th 336, 339 (5th Cir. 2022);

Rule 37.2 and 37.6 Disclosures: No counsel for any party

authored this brief in whole or in part. No person or entity other

than amici and their counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

Further, amici provided notice to all counsel of this filing ten

days before the deadline.

1

1

Schelske, 649 F. Supp. 3d 254; and Doster v. Kendall,

54 F.4th 398 (6th Cir. 2022) (affirming district court’s

injunctions), certiorari granted and judgment vacated

on other grounds by Kendall v. Doster, No. 23-154,

2023 U.S. LEXIS 4827 (Dec. 11, 2023) (Mem.). The

Doster injunction saved Amici U.S. Air Force Master

Sergeant Nickolas Kupper’s career—he was facing

imminent discharge after his religious exemption

request was denied.

The crisis of conscience Amici faced parallels

the one Petitioners grapple with here. In Amici’s

cases, the federal government put them to a terrible

choice—surrender their sincere religious convictions

or forfeit their hard-earned careers. In this case, the

Snohomish Regional Fire and Rescue (“SRFR”)

thrust Petitioners into a similar, career-ending

choice.

Amici challenged that false choice, raising

their hands to defend the civil rights of fellow

servicemembers. Having personally experienced the

effects of religious discrimination, Amici now seek to

defend the civil rights of Petitioners.

As their experiences illustrate, inconsistent

treatment of religious rights under federal law by

federal courts presents real and tangible harm to

American families and employees, including

Petitioners. Amici risk their lives in the line of duty

so that all citizens can enjoy the civil rights our

forefathers fought to enshrine. They agree with

Petitioners that the question presented is critically

important to protect religious freedom in the

workplace.

2

SUMMARY OF ARGUMENT

This Court should grant the Petition. The

Ninth Circuit’s decision in Petersen v. Snohomish

Reg'l Fire & Rescue, 150 F.4th 1211, 1221 (9th Cir.

2025) transforms Groff’s fact-specific “substantial”

burden

test

into

an

employer-protective

reasonableness test that is virtually impossible for

employers to fail. Groff v DeJoy, 600 U.S. 447, 468,

470–71 (2023). Specifically, Petersen’s outlier undue

burden test authorizes courts to grant summary

judgment where an employer subjectively possesses a

“reasonable

concern”

that

the

Title

VII

accommodation at issue would cause an undue

hardship. Petersen, 150 F. 4th at 1221.

The amorphous Petersen standard, facially and

particularly as-applied, simultaneously violates

Congressional intent undergirding Title VII, Groff’s

clear directives, and Rule 56 of the Federal Rules of

Civil Procedure (“Rule 56”). Amici highlight three

aspects of Petersen’s radical new test that warrants

this Court’s attention:

First, Petersen transforms Groff’s substantial

burden test into a speculative burden inquiry.

Employers are permitted to rely upon conjecture—

rather than real evidence—to establish a Title VII

burden. This test is less protective to religious

freedoms than the pre-Groff de minimis burden

standard. Even pre-Groff, the full spectrum of federal

circuits, including the Ninth Circuit, rejected

hypothetical burdens in the Title VII accommodation

context.

Second, Petersen gives courts license to resolve

clear factual disputes as a matter of law. The only

3

Rule 56 “material fact” that really matters under

Petersen is whether the employer subjectively

possessed a “reasonable concern” that accommodating

an employee would pose an undue hardship. Petersen,

150 F.4th at 1221. This is an impossible test for the

employer to fail as it requires the employee to rebut

the employer’s subjective state-of-mind. This cannot

be squared with established Rule 56 standards. It also

facially violates the Groff test, which demands a factspecific inquiry of objective evidence, such as an

examination of the “size and operating cost of [an]

employer.” Groff, 600 U.S. at 471.

Finally, Petersen encourages courts to

disregard as irrelevant “hindsight” facially relevant

comparator evidence of actual and functional

exceptions to a policy. Petersen, 150 F.4th at 1222.

Faced with powerful evidence that SRFR allowed

exceptions to its workplace safety justifications

(demonstrating accommodations were tolerable in its

specific business), the Petersen Court held judges,

rather than juries, make the final credibility call on

comparator evidence.

In short, the Petersen approach conflicts with

Groff, with Title VII, and with Rule 56. Groff requires

a fact-specific inquiry into the actual practical impact

of the accommodation in light of the employer’s

nature, size, and operating costs. 600 U.S. at 468,

470–71. Rule 56 requires courts to view the evidence

and draw reasonable inferences in favor of the

nonmovant, not to resolve competing evidence under

the label of reasonableness. Peterson 150 4th at 1223.

And decisions across the circuits—before and after

Groff—have recognized that undue hardship must be

real rather than speculative, and that the test is

4

inherently a fact-bound question for the jury.

Petersen is not an isolated misapplication but a

rule that will shape religious-accommodation

litigation throughout the Ninth Circuit. The decision

will invariably result in summary judgment against

employees of faith on the west coast. However,

employees residing in circuits that faithfully apply

Rule 56, Groff, and Title VII will enjoy the religious

freedoms Title VII and Groff enshrined. Certiorari is

thus warranted.

ARGUMENT

I.

Petersen’s Speculative Hardship Test Is a

Radical Outlier, Demanding Reversal.

In Groff, this Court held that showing “more

than a de minimis cost” does not suffice; the employer

must show that granting the accommodation would

result in substantial increased costs in relation to the

conduct of its particular business, with all relevant

factors considered in context. 600 U.S. at 468–71.

That standard cannot be satisfied by conjecture.

Even pre-Groff, courts had long recognized that

hypothetical hardships are no hardship at all. An

“employer must establish that the hardship is real

rather than speculative . . . [u]ndue hardship cannot

be proved by assumptions nor by opinions based on

hypothetical facts.” Sturgill v. UPS, 512 F.3d 1024,

1033, n.4 (8th Cir. 2008) (internal citations omitted);

see also Draper v. U.S. Pipe & Foundry Co., 527 F.2d

515, 520 (6th Cir. 1975) (Title VII contemplates that

the employer “point to hardships that actually

resulted” from the claimed burden).

5

In case there was confusion regarding

hypothetical Title VII burdens, this Court in Groff

removed all doubt. Groff explained the Title VII

accommodation analysis demands a “fact-specific

inquiry”, placing the burden on the employer to

demonstrate “substantial increased costs in relation

to the conduct of its particular business.” Groff, 600

U.S. at 450, 470. Even realized burdens will not

survive the test. See id. at 471-73 (explaining

“temporary costs” are not a substantial burden, and

that “it would not be enough for an employer to

conclude that forcing other employees to work

overtime would constitute an undue hardship.

Consideration of other options, such as voluntary

shift swapping, would also be necessary.”).

The Ninth Circuit’s inherently speculative

“reasonable concern” rule in Petersen flips Groff on its

head. Petersen, 150 F.4th at 1221. It authorizes

employers to deny first, and explain later based on

speculative hindsight. Id. at 1222. Under Petersen,

employers will always be able to concoct a facially

valid “concern” on the back end to evade Title VII

liability, one of the evils Groff sought to eliminate.

Groff emphasized that Title VII requires an

assessment of the accommodation’s effect on “the

conduct of the employer’s business,” and that courts

must analyze whether operational impacts actually

carry through to the business. 600 U.S. at 472–73.

The Ninth Circuit’s reasonable-concern rule repeats

one of the errors Groff corrected: it permits employers

to deny accommodations based on forward-looking

apprehension

without

proving

that

the

accommodation would impose a substantial burden

on the employer’s business.

6

Petersen’s

amorphous

reasonable-concern

standard also contradicts Title VII’s statutory

framework. Title VII places the burden on the

employer to demonstrate that it is unable to

reasonably accommodate an employee’s religious

observance or practice without undue hardship on the

conduct of its business. 42 U.S.C. § 2000e(j). This

language asks whether the employer is unable to

presently accommodate without undue hardship—not

whether it reasonably feared that hardship might

someday arise. Groff confirms that distinction: the

hardship must be substantial in the overall context of

the employer’s business, and the costs must rise to an

“excessive” or “unjustifiable” level. 600 U.S. at 469. A

speculative, theoretical, or merely conceivable harm

is not substantial in any legally meaningful sense.

Petersen’s rule is more destructive to civil

rights than the pre-Groff de minimis burden

standard. Pre-Groff, employers at least had to

demonstrate a burden on their business, even if it was

minimal. Petersen allows employers to forego that

burden. For example, in Draper, 527 F.2d at 521, the

employer, like here, advanced a speculative health

and safety undue burden defense, but the Sixth

Circuit rejected that argument on grounds the

employer had not carried “its burden of proving” that

accommodating the employee would “jeopardiz[e] the

safety” of its workplace. Id. Safety certainly matters,

both pre- and post-Groff; but it must be proved rather

than merely invoked.

The Ninth Circuit itself historically recognized

this principle. In Anderson v. General Dynamics

Convair Aerospace Div., the court held that a Title VII

hardship cannot be proved by assumptions or

7

opinions based on hypothetical facts. 589 F.2d 397,

402 (9th Cir. 1978). In EEOC v. Townley Engineering

& Manufacturing Co., 859 F.2nd 610, 615-616 (9th

Cir. 1988) the Ninth Circuit stated that a claim of

undue hardship cannot rest on merely conceivable or

hypothetical hardships but must be supported by

proof of actual imposition on coworkers or disruption

of work routine, a formulation the Petersen panel

itself quoted before diluting it.

The Ninth Circuit’s historical pre-Groff

prohibition

on

hypothetical

hardships

was

harmonious with sister circuits. For example, in

Toledo v. Nobel-Sysco, Inc., the Tenth Circuit held

that any proffered hardship must be actual and that

an employer may not rely merely on speculation,

rejecting as too speculative an asserted increased risk

of tort liability from hiring a driver who used peyote

in religious ceremonies. 892 F.2d 1481, 1492 (10th

Cir. 1989). In Sturgill v. UPS, the Eighth Circuit

likewise held that an employer must establish that

hardship is real rather than speculative, merely

conceivable, or hypothetical, and cannot prove undue

hardship by assumptions or opinions based on

hypothetical facts. 512 F.3d 1024, 1033 n.4 (8th Cir.

2008).

Post-Groff decisions reinforce that hypothetical

burdens are no burden whatsoever, and that

employers must satisfy Groff’s substantial burden

test by pointing to documented burdens. Months after

Groff issued, the Fifth Circuit in Hebrew v. Tex. Dep’t.

of Crim. Just. reversed summary judgment against a

Title VII employee, holding that the Texas

Department of Criminal Justice failed to identify

actual costs, much less substantial increased costs,

8

from accommodating a prison guard’s religious vow to

maintain long hair and a beard. 80 F.4th 717, 722–24

(5th Cir. 2023). The Hebrew court rejected the

employer’s what if “everyone receive[s] an

accommodation” reasoning, correctly recognizing

Groff requires courts to focus on the case at hand and

the particular accommodation at issue. Id. at 723.

That reasoning applies here: SRFR’s burden

was to prove that accommodating Petitioners, in the

circumstances presented, would impose an undue

hardship—not that unvaccinated firefighters might

theoretically pose risks in some broader or

generalized sense. However, the Ninth Circuit

radically departed from sister circuits, holding that

hypothetical burdens are what matter under Groff.

The Petition identifies the error cleanly.

Petitioners submitted substantial evidence that

SRFR did not actually experience hardship before or

after the mandate. SRFR implemented alternative

and effective disease-prevention protocols (e.g.,

regular testing, masking, quarantining when

symptomatic, etc.) before and after the vaccination

mandate, and later used alternative safety protocols

after it allowed unvaccinated employees to return to

work. SRFR’s feared contract-loss risks also did not

materialize, and its cited potential increased-liability

concerns did not occur. This is unsurprising, given

that neighboring fire departments facing the same

and

similar

potential

burdens

seamlessly

accommodated unvaccinated firefighters throughout

the pandemic without issue. Peterson, 150 F.4th at

1222.

9

Under Groff, such evidence is not collateral—it

goes to the heart of whether the accommodation

would have caused substantial increased costs in

relation to SRFR’s actual business. Under Rule 56,

those disputes should have been resolved by a jury;

but the Petersen rule gives courts license to embrace

hypothetical burdens, and to ignore Rule 56 and

Groff’s stringent standards.

II.

Petersen Authorizes Courts to Resolve

Clear Factual Disputes As a Matter of

Law.

The Ninth Circuit’s speculative burden rule

also turns the settled summary judgment standard on

its head. Rule 56 does not permit courts to weigh

evidence, choose between competing inferences, or

decide disputed factual questions in favor of the

moving party.

Under Petersen, however, courts are now

authorized to do exactly that. The Petersen test

dictates that the only Rule 56 “material fact” that

matters is whether the employer subjectively

possessed a “reasonable concern” that accommodating

an employee would pose an undue hardship.

Practically, this rigs the game in the employer’s

favor—an

employer’s

subjective

concern

is

unfalsifiable. Petersen also authorizes courts to

engage in hindsight rationalizations. Petersen, 150

F.4th at 1221-1222.

The manner the Petersen rule operates in

practice at the Rule 56 stage magnifies its flaws. For

example, suppose a Sikh flight attendant seeks

accommodation to his airline employer’s facial hair

policy but is fired on undue hardship grounds. At the

10

close of discovery, the airline’s Chief of Operations

submits an affidavit stating the airline had a

reasonable concern that bearded flight attendants

will disrupt operations, employee morale, and the

company’s bottom line. Under Petersen, to survive

Rule 56, the employee now bears the burden of

producing competent evidence that his employer was

not subjectively concerned about its cited burdens, an

impossible task. The employer’s failure to generate

factual issues regarding the airline’s unverifiable

concern means that material fact is undisputed and,

like in Petersen, the employer is then entitled to

summary judgment. And this is the case, even if there

were mountains of competent evidence indicating the

airline could have accommodated the employee

without any hardship whatsoever, much less

satisfy Groff's substantial burden standard. Under

Petersen, regardless of the strength of the employee's

evidence, an employer's subjective concern trumps

real-world evidence.

That approach contradicts Rule 56 and Groff’s

fact-specific standard. Groff instructs courts to take

account of 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 the employer. 600 U.S. at 470–71.

But Petersen says the only material fact worth

considering is the employer’s subjective concern.

The factual backdrop in this case demonstrates

how Petersen stretches Rule 56 and Groff beyond

recognition. The Ninth Circuit embraced SRFR’s

subjective and hypothetical concerns, ruling as a

matter of law those concerns trumped Petitioners’

competent evidence to the contrary that went to the

11

heart whether SRFR could have accommodated in

light of its size and operational capabilities.

Specifically, the Ninth Circuit treated SRFR’s feared

potential loss of a Department of Corrections (“DOC”)

contract as a “textbook economic hardship,” even

though DOC’s own policies made allowances for

religious accommodations, and that the DOC had no

issue when unvaccinated firefighters returned to

work. Petersen, 150 F.4th at 1221-1222. The Petersen

Court also treated speculative uninsured liability

risks as concrete burden under Groff, even though

Petitioners produced evidence that the insurer had

never faced such a lawsuit and SRFR’s fire chief

acknowledged such a suit was based on conjecture

and historically had rarely if ever materialized. These

are classic factual disputes.

Federal district courts well-versed in Rule 56

standards have faithfully applied Groff in virtually

identical circumstances, but reach the opposite

conclusion to Petersen. For example, in DeMaria v.

N.Y. State Unified Court Sys., no. 23 Civ. 3627, 2025

U.S. Dist. LEXIS 153487, at *30-*32 (S.D.N.Y. Aug.

8, 2025), Judge Paul Engelmeyer granted summary

judgment in the employee’s favor where the New York

Unified Court System advanced a speculative “health

and safety” defense related to its vaccination

mandate.

Similarly, in Bobnar v. AstraZeneca Pharm.

LP, 758 F. Supp. 3d 690, 725-29 (N.D. Ohio 2024), the

court granted summary judgment in the employee’s

favor. Like in Petersen, the employer advanced feared

operational, safety, and economic burdens, but failed

to present evidence those concerns had materialized.

Id. at 726-27. The Bobnar court faithfully applied

12

Groff to Rule 56 standards and granted summary

judgment, reasoning the employer could “not rely on

speculative

or

hypothetical

argument[s]

to

demonstrate an undue hardship.” Id. at 729.

Petersen’s error has already infected sister

circuits. While the Third, Fifth, Seventh, and Eighth

Circuits require actual hardship rather than a

reasonable concern of hardship, the First Circuit has

copied Petersen’s mistake. In Rodrique v. Hearst

Commc’ns, the First Circuit held that because the

employer “reasonably relied” on available evidence

and “reasonably conclud[ed]” that an accommodation

would cause the employer undue hardship, the undue

hardship defense was met as a matter of law. 126

F.4th 85, 91-92 (1st Cir. 2025).

In contrast, Third, Fifth, Seventh, and Eighth

Circuits require actual hardship. For example, in

Smith v. City of Atlantic City, the Third Circuit

rejected “good faith” as a cure for a Title VII breach

and required the employer to show that the

accommodation would impose an actual undue

hardship. 138 F.4th 759, 774 (3d Cir. 2025). Likewise,

in Hebrew, the Fifth Circuit applied Groff to Rule 56

and held the employer must demonstrate “actual

costs” and thoroughly examine “any and all”

alternative accommodation options to determine

whether each potential option would rise to a

substantial burden. 80 F.4th 717, 722 (5th Cir. 2023).

The Seventh Circuit also requires a showing of

an actual hardship, holding an employer must

actually “prove undue hardship arising from the

accommodation” at issue and cannot merely offer a

good-faith yet mistaken reason for denying it. Kluge

13

v. Brownsburg Cmty. Sch. Corp. 150 F.4th 792, 807

(7th Cir. 2025).

Finally, the Eighth Circuit has also faithfully

applied Groff’s fact-specific inquiry to Rule 56. The

Eighth Circuit in Naylor required definitive evidence

of actual hardship and found that evidence of possible

reputational harm or contract cancellation was

insufficient to eliminate a jury issue. Naylor v. Cnty.

of Muscatine, 151 F.4th 973, 977 (8th Cir. 2025).

Had Petitioners resided in a circuit where the

actual-hardship rule applies, the outcome would have

been different. Petitioners’ Rule 56 evidence—

including SRFR’s prior accommodation, later

accommodation,

neighboring

departments’

seamlessly permitting religious accommodations, and

lack of actual contract consequences—would be

plainly material and preclude summary judgment in

the Third, Fifth, Seventh, and Eighth Circuits. In

fact, because SRFR’s undue hardship defense is based

on raw speculation here, Petitioners would

realistically obtain summary judgment had they filed

in the Bobnar or Demaria court.

The Ninth Circuit’s recent decision in Williams

v. Legacy Health, No. 24-5977, 2026 U.S. App. LEXIS

13121, at *11-*12 (9th Cir. May 6, 2026) shows that

Petersen is already compelling courts to resolve

factual disputes at summary judgment. The

employees in Williams were denied religious

accommodations from a hospital vaccination policy,

even though textbook factual disputes existed as to

whether the employer could have accommodated

short of a substantial burden or expense (e.g., that

safe and feasible accommodations existed that the

14

employer refused to consider). Id. at *14. The district

court granted summary judgment in the employer’s

favor, and the Ninth Circuit affirmed under Groff as

filtered through Petersen, reasoning that the

employer had put forward unrebutted “realistic

concerns” that an unvaccinated employee threatened

a substantial’ burden on its business. Id. at *11. In

other words, the risk of undue hardship suffices

merely if it is “realistic” under Petersen. Id. Further,

the substantial costs contemplated by Groff need not

be realized, and comparator evidence of other

similarly situated hospitals’ accommodations are

irrelevant under Groff because those hospitals were

“not before” the court. Id. at *11-*12.

Whatever the ultimate merits of any individual

healthcare case, Williams demonstrates how

Petersen’s rule converts Groff’s fact-specific

“substantial” burden inquiry into an employerprotective reasonableness test that is virtually

impossible for the employer to fail. It is clear that, in

application, Petersen dilutes Rule 56 beyond

recognition and renders Groff’s substantial burden

test meaningless.

III.

Petersen Encourages Courts To Ignore

Comparably Risky Exceptions.

Groff requires courts to consider all relevant

factors in the case before it, including the practical

impact of accommodation in light of the employer’s

business. 600 U.S. at 470–71. When an employer

grants exceptions to a policy that poses comparable

risks from a safety perspective, or comparable

employees in the same industry are accommodated

without incident, that evidence bears directly on

15

whether religious employees can be accommodated

without experiencing the substantial burdens or

expenses contemplated by Groff.

Prior or contemporaneous exceptions to a

workplace policy, including by similar employers in

the same industry, are relevant because they show

the employer’s actual tolerance for the very

operational, safety, or financial burdens it in

hindsight characterizes as undue. Such evidence

plainly generates factual disputes for a jury to

examine and weigh. But Petersen casually dismisses

relevant comparator evidence as inconsequential

“hindsight.” Petersen, 150 F.4th at 1222.

The Ninth Circuit has repeatedly failed to

grasp the import of comparator evidence in the

religious discrimination context. For example, in

Tandon v. Newsom, California permitted secular

gatherings during the COVID-19 pandemic to occur

unrestricted (e.g., retail shopping, sporting events,

movie theatres, etc.), but restricted gatherings for

religious reasons. This Court held the government

triggers and fails strict scrutiny when it treats

“any comparable secular activity more favorably than

religious exercise”. 593 U.S. 61, 62 (2021) (emphasis

in original).

That logic extends with equal force in the

mandatory vaccination context. Amici Doster,

Schelske, and Kupper’s careers were threatened by

vaccination mandates that violated their religious

beliefs. However, the military’s vaccination

requirements were struck under the Religious

Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.

§ 2000bb-1, et seq. largely because the Army, Air

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Force, and Navy had granted secular medical

exemptions while treating religious exemptions less

favorably. See, e.g., Schelske v. Austin, 649 F. Supp.

3d 254, 284 (N.D. Tex. 2022) (striking vaccination

mandate under RFRA where the Army failed to show

that “granting a religious exemption would impair [its

interest in counteracting COVID-19] more than a

secular exemption would.”); Doster v. Kendall, 48

F.4th 608, 613 (6th Cir. 2022) (striking Air Force’s

vaccine mandate under RFRA where medical

exemptions were granted but Air Force denied

virtually “all requests for religious exemption[]”); U.S.

Navy Seals 1-26 v. Biden, 27 F.4th 336, 352 (5th Cir.

2022) (striking Navy’s vaccination requirement under

RFRA, emphasizing that the exceptions to the

vaccination policy the Navy allowed were a “telltale

sign that the government’s interest in enacting a

liberty-restraining pronouncement [was] not in fact

‘compelling”) (cleaned up).

The logic is simple: if a policy allows for any

exceptions that undermine safety in a comparable

manner, it shows those with religious objections to the

same policy can be accommodated. This is because

comparability focuses on the risks of conduct, not on

the reasons for conduct. Tandon, 593 U.S. at 62;

Roman Catholic Diocese of Brooklyn v. Cuomo, 592

U.S. 14, 22 (2020).

The reasoning applies with equal force in the

Title VII context, where religious beliefs are afforded

heightened legal protection. Comparator evidence is

highly relevant to Groff’s undue burden analysis. For

example, in Hebrew, 80 F.4th at 723, the Fifth Circuit

reversed summary judgment in the employer’s favor

where medical exemptions to the employer’s facial

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hair policy were allowed, but the Title VII plaintiff’s

religious accommodation request was denied. The

Hebrew court emphasized there was “no evidence

whatsoever to show that there is a greater safety risk

or hardship in allowing [the plaintiff] to keep his

beard” relative to medically exempt colleagues. Id.

Similarly, in Demaria, Judge Engelmeyer

granted summary judgment in the employee’s favor

where the New York Court system had permitted

many exceptions to its vaccination policy, but

contended it would be an undue hardship to

accommodate the individual plaintiff. DeMaria, 2025

U.S. Dist. LEXIS 153487, at *30.

This case presents powerful exception

evidence. Petitioners offered evidence that SRFR

allowed unvaccinated firefighters to work before and

during the Mandate through at least October of 2021,

and again after May 2022, utilizing alternative safety

measures. Petersen, 150 F.4th at 1215. Petitioners

also offered evidence that neighboring fire

departments seamlessly accommodated unvaccinated

firefighters, and that SRFR firefighters served

alongside those unvaccinated firefighters possessing

religious accommodations through SRFR’s mutualaid agreement. Id. at 1222. In fact, Petitioner

Petersen obtained an accommodation with a

neighboring department and served alongside former

SRFR colleagues during the relevant period while

unvaccinated. Id. This evidence is not “hindsight” but

rather contemporaneous evidence of the feasibility of

accommodation. That SRFR within months of taking

adverse action against Petitioners allowed the very

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accommodation it claimed would cause undue

hardship generates factual issues under Groff.

The Ninth Circuit’s refusal to credit those facts

conflicts with Groff and common sense. Where

comparable exceptions from a risk perspective are

allowed (e.g., permitting SRFR employees to work

alongside other unvaccinated firefighters in other

departments), or where comparable employees in the

same industry are accommodated without issue, a

reasonable factfinder could certainly conclude SRFR

could have accommodated Petitioners short of undue

hardship.

However, the Petersen panel held that it could

not judge SRFR by the responses of other fire

departments or with “the clarity of hindsight”

(ironically, while accepting SRFR’s post hoc undue

hardship justifications as a matter of law). Petersen,

150 F.4th at 1222. Regardless, the evidence

Petitioners relied upon was not an invitation to

impose hindsight liability for a good-faith mistake; it

was evidence that the asserted hardships were not

substantial, not undue, and in many instances were

ex post facto imaginings.

This Court should grant review to restore the

proper relationship between Groff and Rule 56. The

legal question is clean, outcome-determinative, and

recurring: whether Title VII permits an employer to

defeat a religious-accommodation claim by showing a

reasonable basis for fearing undue hardship, or

whether the employer must prove that the

accommodation would actually impose undue

hardship. The Ninth Circuit chose the former; Groff,

Title VII, and Rule 56 require the latter.

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CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted, this 22nd day of May

2026.

WALKER MOLLER

Counsel of Record

SIRI & GLIMSTAD LLP

1005 Congress Avenue,

Suite 925-C36

Austin, TX 78701

(888) 747-4529

wmoller@sirillp.com

LINLEY WILSON

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK,

PLLC

2555 East Camelback Road

Phoenix, AZ 85016

Counsel for Amici Curiae,

Hunter

Doster,

Robert

Schelske,

and

Nickolas

Kupper

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