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ELISA NADEAU, Bar No. 199000
1 enadeau@littler.com
YURI CHOY, Bar No. 257811
2 ychoy@littler.com
LITTLER MENDELSON, P.C.
3 50 W. San Fernando St., 7th Floor
San Jose, California 95113.2431
4 Telephone: 408.998.4150
Fax No.: 408.288.5686
5
(Additional Counsel on the Following Page)
6
7 Attorneys for Defendant
SALINAS VALLEY HEALTH
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9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF MONTEREY
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CRISTINA ARAUJO, MAYA ATKINS, Case No. 22CV000011
12 RAFAEL BARRAGAN, PATRICK BURNS,
LATOYA CALDER, KIANA COX, ERIKA ASSIGNED FOR ALL PURPOSES TO
13 CRAFT, SALVADOR DELAHNO, JUDGE VANESSA W. VALLARTA, DEPT.
FLORMELISSA FERNANDEZ, JOSHUA 13A
14 GARNETT, JOSE GUZMAN, JAY HARRIS,
VANITY HORTON, IANA JOHNSON, DEFENDANT SALINAS VALLEY
15 VANESSA LOCKARD, MARIA HEALTH’S APPENDIX OF
MONTENEGRO, MARY NARAYAN, GAYL AUTHORITIES IN SUPPORT OF
16 PINA, JULIE MARIE PLEMMONS, IRACEMA MOTION FOR DIRECTED VERDICT
REGALADO, CLAUDIA SERRANO, AFTER MISTRIAL; CCP § 630(f)
17 CORDELIA SIDIJAYA, DESIREE STOUT,
ANNE THOMAS, MARIA TORCULAS- Date: April 12, 2024
18 DELAHNO, RACHEL VELASCO, JULIA Time: 11:00 a.m.
VENOY, WENDY WARD, MA TERESA Dept.: 13A
19 YASAY,
20 Plaintiffs, Trial Date: February 05, 2024
Complaint Filed: January 3, 2022
21 v. FAC Filed: January 14, 2022
22 SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM, and DOES 1-50,
23 inclusive,
24 Defendant.
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1 Case No. 22CV000011
SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER
MISTRIAL; CCP § 630(F)
1 JOSHUA KIENITZ, Bar No. 244903
jkienitz@littler.com
2 MARGARET ‘ELLIE’ MCPIKE, Bar No. 335504
emcpike@littler.com
3 LITTLER MENDELSON, P.C.
101 Second Street, Suite 1000
4 San Francisco, California 94105
Telephone: 415.433.1940
5 Fax No.: 415.399.8490
6 HELENE WASSERMAN, Bar No. 130134
hwasserman@littler.com
7 LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
8 Los Angeles, California 90067
Telephone: 310.553.0308
9 Fax No.: 310.553.5583
10 ALYSSA GJEDSTED, Bar No. 284588
agjedsted@littler.com
11 LITTLER MENDELSON P.C.
633 W. 5th St, 63rd Fl.
12 Los Angeles, CA 90071
Telephone: 213.443.4300
13 Fax No.: 213.443.4299
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2 Case No. 22CV000011
SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER
MISTRIAL; CCP § 630(F)
1 TO THE HONORABLE COURT, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
2 Defendant SALINAS VALLEY MEMORIAL HEALTHCARE SYSTEM (“Defendant”)
3 submits the following Appendix of court decisions cited in Defendant’s Motion for Directed Verdict
4 Where Jury Discharged Without Rendering Verdict.
5
6 Tab Authority
A. May 11, 2023 Order Granting, In Part, Defendant Salinas Valley Memorial Healthcare
7 System's Motion For Summary Judgment, Or Alternatively, Motion For Summary
8 Adjudications
B. Adamowicz v. Northwell Health Inc. (E.D.N.Y., Mar. 12, 2024) 2024 WL 1072210
9
C. Ansonia Board of Education v. Philbrook (1986) 479 U.S. 60, 68
10
D. Beickert v. New York City Department of Education (E.D.N.Y., Sept. 25, 2023) 2023
11 WL 6214236
12 E. Bushra v. Main Line Health, Inc. (E.D. Pa., Dec. 28, 2023) 2023 WL 9005584
F. Does 1-6 v. Mills (1st Cir. 2021) 16 F.4th 20
13
G. EEOC v. Oak-Rite Mfg. Corp., 2001 WL 1168156
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H. Fugazzi v. Southern Pac. Co. (9th Cir. 1953) 208 F.2d 205
15 I. Groff v. DeJoy, (2023) 600 U.S. 447, 468- 471
16 J. Humphrey v. Memorial Hospitals Association (9th Cir. 2001) 239 F.3d 1128
17 K. Kelly v. Wal Mart Stores, Inc. (2017) 291 F.Supp.3d 1145
L. Kimbro v. Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869
18
M. Moore v. Montefiore Medical Center (S.D.N.Y., Nov. 3, 2023) 2023 WL 7280476
19
N. Robinson v. Children’s Hosp. Bos. (D. Mass. Apr. 5, 2016) 2016 WL 1337255
20 O. Smith v. City of Atl. City (D.N.J. Nov. 28, 2023) 2023 WL 8253025
21 P. Together Employees v. Mass General Brigham Incorporated (D. Mass. 2021) 573
F.Supp.3d 412, 436, aff’d (1st Cir. 2022) 32 F.4th 82
22
Q. US Airways, Inc. v. Barnett (2002) 535 U.S. 391
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Case No. 22CV000011
SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER
MISTRIAL; CCP § 630(F)
1 Dated: March 20, 2024
LITTLER MENDELSON, P.C.
2
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4 ELISA NADEAU
HELENE WASSERMAN
5 JOSHUA KIENITZ
ALYSSA GJEDSTED
6 YURI CHOY
MARGARET ‘ELLIE’ MCPIKE
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Attorneys for Defendant
8 SALINAS VALLEY HEALTH
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4878-3405-4319.1 / 067898-1062
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4 Case No. 22CV000011
SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER
MISTRIAL; CCP § 630(F)
TAB A
ELECTRONICALLY FILED BY
SUPERIOR COURT OF CALIFORNIA Superior Court of California,
COUNTY OF MONTEREY County of Monterey
On 05/11/2023
By Deputy: Olalia, Sonia
CRISTINA ARAUJO, et. al, 22CV000011
Plaintiffs,
vs. ORDER GRANTING, IN PART,
DEFENDANT SALINAS VALLEY
SALINAS VALLEY MEMORIAL HEALTH MEMORIAL HEAL TH CARE SYSTEM'S
CARE SYSTEM, and DOES 1-50, inclusive, MOTION FOR SUMMARY JUDGMENT,
OR ALTERNATIVELY, MOTION FOR
Defendants. SUMMARY ADJUDICATION
Defendant Salinas Valley Memorial Healthcare System's ("SVMH") Motion for Summary
Judgment, or Alternatively, Motion for Summary Adjudication ("Motion"), came on for hearing
on February 17, 2023 in Department 14 of the above-referenced court, the Honorable Carrie M.
Panetta presiding. Elisa Nadeau and Joshua Kienitz appeared for SVMH and Daniel Watkins and
Scott Lee appeared for the Plaintiffs. The court made rulings on that date and continued the
hearing to February 27, 2023 for additional consideration of the parties' arguments regarding
Causes of Action One, Three and Four.
The court read and considered all of the papers filed in support and in opposition of the
Motion and oral argument presented at the hearing, and made the following rulings at the first
hearing on February 17, 2023:
1. As to Plaintiffs' objections to the Declaration of Michelle Childs, the court accepted
Ms. Childs' declaration expressing the policies and communications of SVMH and the reasons for
actions taken by SVMH based on her position as the Chief Human Resource Officer for SVMH.
However, the court sustained the objections to her statements calling for legal conclusions, such as
whether SVMH would suffer undue hardship by accommodating the Plaintiffs' religious beliefs
(Paragraphs 24, 32, 44) and whether SVMH had an employment relationship with Dr. Guzman at
any time relevant to this action (Paragraph 42).
2. The court overruled SVMH's objections to Plaintiffs' Declarations for the most
part. The court accepted Plaintiffs' statements regarding their beliefs about their work performance
and about fetal cell lines research, not for the truth of those matters, but for Plaintiffs' state of mind
related to their religious beliefs. The court sustained the objection to Plaintiffs' statements
regarding reasonable accommodation as calling for a legal conclusion.
3. The court found that the objection to those portions of Jose Guzman's Declaration,
Paragraph 17, that recite hearsay is properly sustained as hearsay. However, the contract is
attached as Exhibit U to the declaration of Ms. Childs, without objection to the actual document.
4. The court granted SVMH's request for judicial notice of media briefings, news
releases, CDC reports, media articles and analysis. However, notice is granted as to the existence
of those items but not for the truth of the matters asserted therein.
5. The court granted Plaintiffs' request for judicial notice of the California Department
of Public Health and The Bible.
6. Pursuant to Plaintiffs' concession, the court granted summary adjudication as to the
Second Cause of Action for Failure to Engage in Interactive Process and the Fifth Cause of Action
for Wrongful Discharge in Violation of Public Policy.
7. The court denied the Motion as to Plaintiff Julia Venoy, finding that a triable issue
of material fact (Fact No. 30) existed as to whether PlaintiffVenoy suffered an adverse
employment action, specifically whether her retirement was forced due to the hospital's policy
about employees not returning to work unless vaccinated. (See Declaration of Julia Venoy,
Paragraphs 11-13 and Ms. Childs' September 10, 2021 email to Ms. Venoy - see Childs
Declaration, Exhibit L.)
8. The court denied the Motion as to Plaintiff Jose Guzman, finding that a triable issue
of material fact (Fact No. 21) existed as to whether Dr. Guzman has standing to sue the hospital
under FEHA. An "employee' for purposes of FEHA is any individual under the direction and
control of an employer under any appointment or contract of hire or apprenticeship, express or
implied, oral or written, but not one who is an independent contractor as defined in Labor Code
section 3353. (See Cal. Code Regs., tit. 2, § 11008(c).)
Plaintiffs incorrectly argued that Dr. Guzman is an employee under the Dynamex case.
Labor Code section 2783 provides that the holding in Dynamex does not apply to physicians, and
instead, the determination of employee or independent contractor status for individuals in those
occupations shall be governed by S. G. Borello & Sons, Inc. v. Department ofIndustrial Relations
2
( 1989) 48 Cal.3d 341. Ms. Childs indicated that SVMH had no control over the day-to-day
employment of Dr. Guzman, including supervision, training, and other indicia of employment
(Childs Declaration, Paragraph 41). Ms. Childs presented a copy of the contract with Cypress
Coast Anesthesiologist Medical Group (Childs Declaration, Exhibit U). That contract provides that
Dr. Guzman's services are exclusive to SVMH and he needs SVMH's approval to provide services
at another facility, and that SVMH controls how much he can charge patients for services. (See
also Guzman Declaration, Paragraphs 17-18.) Therefore, there is a triable issue of material fact as
to whether Dr. Guzman is an independent contractor pursuant to Labor Code section 3353 or an
employee for purposes of FEHA.
The court continued the hearing for further consideration of the First, Third and Fourth
Causes of Action. After hearing further oral argument from counsel, the court issues this order,
ruling on the arguments made in SVMH's Separate Statement of Undisputed Facts.
I. "ISSUE ONE: Plaintiffs' First And Third Causes Of Action Under FEHA Fail
Because Plaintiffs Cannot Meet Their Prima Facie Burden To Show A Religious
(Rather Than Philosophical) Objection To The Vaccine."
SVMH contends there is no actual conflict between Plaintiffs' religious faiths and being
vaccinated. (Fact No. 3). SVMH fails to address each plaintiff individually and the cited evidence
is to the collection of requests for religious exemptions. While it is true that personal preferences
are not beliefs protected by FEHA, Plaintiffs have created a triable issue of material fact based on
their declarations of religious beliefs conflicting with the possible use of fetal cell lines in the
creation of the vaccines. (See, e.g., Declarations of Jay Harris, Vanity Horton, Lana Johnson, and
Vanessa Lockard and Childs Declaration, Exhibit K.) Plaintiffs declare receipt of an email from
Michelle Childs announcing the offer of an unpaid leave of absence which stated that "[t]he
information and documentation you have presented sufficiently establishes your entitlement to a
religious exemption under prevailing legal standards." (See, e.g., Declaration of Gayl Pina,
Paragraph 10.)
Defendant has failed to present admissible evidence that this element of Plaintiffs' prima
facie case is lacking.
II. "ISSUES TWO AND THREE: Plaintiffs' First And Third Causes Of Action
Under FEHA Fail Because Allowing Unvaccinated Employees To Work In The
3
Hospital Would Have Been An Undue Hardship ... And SVMH Reasonably Explored
Alternatives To A Leave Of Absence And Separation."
The court notes that, as was discussed at the hearing, there is a question as to which party
has the initial burden as to the first cause of action, and whether the McDonnell Douglas burden
shifting analysis or the traditional summary judgment burden analysis applies in this case. "The
Courts of Appeal have pondered how the McDonnell Douglas formula should apply, under
California law, to an employer's motion for summary judgment against a claim of prohibited
discrimination. Code of Civil Procedure section 437c provides that on summary judgment, the
moving party must establish entitlement to 'judgment as a matter of law.' (Id., subd. (c).) A
moving defendant may do so by 'show[ing]' that the plaintiffs action 'has no merit' (id., subds.
(a), (o )(2)), i.e., that 'one or more elements ... cannot be established' or 'there is a complete
defense' (ibid.). Only after the defendant has met that burden must the plaintiff respond with
admissible evidence raising a triable issue. (Ibid.)" ( Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317,
356.)
However, several California courts have suggested that because a plaintiff opposing
summary judgment need not demonstrate triable issues until the moving defendant has made an
initial no-merit showing, the McDonnell Douglas burdens are reversed on a defense motion for
summary judgment against a claim of discrimination in employment (Id.). This court does not
need to resolve the prima facie burden on this issue, because SVMH did not simply rely on the
argument that Plaintiffs failed to demonstrate a prima facie case of discrimination, but instead,
proceeded to the second step of the McDonnell Douglas formula. (See Guz, 24 Cal.4 th at 357.)
SVMH argues "undue hardship" as to both the first and third causes of action. At the
hearing on February 17, 2023, the Court inquired of counsel whether the analysis of undue
hardship is the same for both the discrimination cause of action and the failure to accommodate
cause of action. Both counsel agreed that the analysis is different (notwithstanding defense counsel
arguing the undue hardship analysis as to both causes of action). SVMH argues that Plaintiffs
have not alleged disparate treatment, yet Plaintiffs' Opposition cites to CACI Jury Instruction No.
2500 for the elements of disparate treatment based on religion.
Accordingly, as to the First Cause of Action for Religious Discrimination, the Court has
considered the Undisputed Material Facts in light of the traditional analysis of disparate treatment
and interpreted the phrasing of Issue No. 2 regarding "undue hardship" as meaning SVMH
4
proffered a legitimate, non-discriminatory reason for terminating the unvaccinated employees,
without a motive to discriminate. Therefore, whether SVMH would suffer an "undue hardship" is
only at issue for the Third Cause of Action for Failure to Accommodate.
The case of Harris v. City of Santa Monica (2013) 56 Cal.4th 203 is instructive. Similar to
the defendant in Harris, SVMH passes the "but for" test. SVMH has established that "but for"
their religious beliefs, Plaintiffs still would have been terminated. In Harris, the California
Supreme Court expounded on the expansive meaning of the "because of' language in section
12940(a). The Harris court proceeded to address the legal consequences that flow from an
employer's proof that it would have made the same employment decision in the absence of any
discrimination. Here, Plaintiffs have failed to show that their religious beliefs were a substantial
factor (even if not a "but for" cause) for the action taken by SVMH.
SVMH argues that its clinical judgment was that requiring the vaccine, in addition to non-
pharmaceutical interventions and methods, would be the best protection against severe disease and
hospitalization, particularly for vulnerable patients. (See Childs Declaration, Paragraph 24 and
Radner Declaration, Paragraph13.) As addressed in Guz, 24 Cal.4th at 358, "if nondiscriminatory,
[Defendant's] true reasons need not necessarily have been wise or correct. (See, e.g., Horn, supra,
72 Cal.App.4th 798, 807; Hersant, supra, 57 Cal.App.4th 997, 1009.) While the objective
soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply
whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons ...
in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would
thus preclude a finding of discrimination. "
Here, SVMH met its burden based on the evidence that it treated all unvaccinated
employees alike. And although a religious exemption was possible, the CDPH order, dated August
5, 2021, stated that"[ v]accination against COVID-19 is the most effective means of preventing
infection with the COVID-19 virus ... " and "all health care workers must be vaccinated to reduce
the chance of transmission to vulnerable populations." (Childs Declaration, Exhibit F, page 2,
Paragraph 2)
Further, according to the Declaration of Ms. Childs (Paragraph 30), very limited hours of
remote work were available to some hospital employees, but none of the named Plaintiffs were
offered remote work because their positions could not accommodate it, they declined interest in it,
or some combination of those reasons. All parties agree that the named Plaintiffs' work required
5
interfacing with patients and other staff. (Fact 10, Undisputed.) Therefore, SVMH could not
simply reassign the Plaintiffs to other positions. In fact, at least two individuals with religious
exemptions, who are not part of this action, were provided with remote work where their job duties
allowed for it. (Childs Declaration, Paragraph 30.) Therefore, SVMH presented a legitimate non-
discriminatory reason for requiring all employees to be vaccinated or terminated.
Because SVMH provided a legitimate reason for its action, the burden shifted to Plaintiffs
to prove by substantial evidence that the legitimate reason proffered by the employer was untrue
and was merely a pretext for discrimination. (See McDonnell Douglas Corp. v. Green ( 1973) 411
U.S. 792, 804.) To defeat the motion, Plaintiffs were required to point to evidence raising a triable
issue that would permit a trier of fact to find by a preponderance that intentional discrimination
occurred. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851.) Even when
viewing the evidence in the light most favorable to Plaintiffs, that burden has not been met. There
simply is no evidence that Plaintiffs were treated any differently than those unvaccinated
employees who did not claim a religious exemption.
The Motion for Summary Adjudication as to the First Cause of Action for Discrimination
is GRANTED.
Regarding the Third Cause of Action for Failure to Provide Reasonable Accommodation,
Government Code § 12926(u) defines "undue hardship" as an action requiring significant difficulty
or expense in light of the operations and overall resources of the employer. SVMH provided no
evidence as to expense or difficulty with implementing a testing and masking regime, as allowed
under the California Department of Public Health Order of August 5, 2021, for workers requesting
exemption due to religious belief. SVMH offered its Facts numbered 4-7 regarding its belief that
requiring the vaccine in addition to the non-pharmaceutical interventions would be the best
protection against severe disease, hospitalization and death for vulnerable patients, and that
allowing unvaccinated employees to work in the hospital from November 1, 2021 through October
12, 2022 would increase those risks.
SVMH argues that it believed that alternatives to vaccination, such as masks and testing,
were not reasonable accommodations because of the safety risk, such that maximal protection of
staff and patients would be achieved by using a combination of interventions -- with vaccination as
an essential component. Defendant offers medical evidence by way of the declarations of Dr.
Radner and Dr. Reingold. Plaintiffs offer their competing expert testimony as to the risks from Dr.
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Lindsay, Dr. Burke, and Dr. Bhattacharya. Therefore, a triable issue of material fact exists
regarding the risks known at the time of SVMH's decision and whether it was an undue hardship
to allow the unvaccinated employees to work in person as their jobs required.
The Motion for Summary Adjudication as to the Third Cause of Action for Failure to
Provide Reasonable Accommodation is DENIED.
III. ISSUES FOUR AND FIVE: "Plaintiffs' Fourth Cause Of Action For
Retaliation Fails Because Providing Maximal Protection Against COVID-19 Was
SVMH's Legitimate And Nondiscriminatory Reason For Placing Plaintiffs On Leave
And Separating Their Employment ... And Plaintiffs Cannot Prove [This Reason] Was
A Pretext For Religious Discrimination."
"[I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show
(1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between the protected activity and the
employer's action .... Once an employee establishes a prima facie case, the employer is required to
offer a legitimate, nonretaliatory reason for the adverse employment action .... If the employer
produces a legitimate reason for the adverse employment action, the presumption of retaliation
'drops out of the picture,' and the burden shifts back to the employee to prove intentional
retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, citations omitted.) For
SVMH to prevail on the Motion as to this cause of action, it must show either that ( 1) Plaintiffs
could not establish one of the elements of the FEHA claim, or (2) there was a legitimate,
nondiscriminatory reason for SVMH's decision to terminate Plaintiffs' employment. (See
Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076, 1090-1091.)
In response to Plaintiffs' prima facie case of Retaliation, SVMH presented a legitimate,
nonretaliatory reason for the termination of the employees through the medical declarations of Dr.
Radner and Dr. Reingold. SVMH argues that providing maximum protection against COVID-19,
protecting patients and co-worker safety are legitimate reasons for the action taken against
Plaintiffs. The burden then shifted to Plaintiffs to show a triable issue by producing substantial
evidence that the stated reason is untrue or pretextual. The Opposition argues, without using the
word "pretext", that SVMH ignored its own guidance that unvaccinated exempt employees would
continue to work while masking, testing and distancing. Plaintiffs refer to the July 28, 2021 email
communication "Employee Update" which included information that after September 30, weekly
7
testing instead of vaccination will only be an option for those with an approved medical or
religious accommodation. (Childs Declaration, Exhibit E.) At that time, the policy for on-site
workers included accommodation of weekly testing for those with an approved religious
exemption.
The Employee Update also informed staff that the hospital was working on developing the
process regarding employees who cannot be vaccinated for medical safety reasons, or who have a
personal religious objection to vaccination. Plaintiffs submitted their requests for religious
accommodation, and then the weekly testing accommodation was no longer available. Plaintiffs
have submitted no additional evidence regarding pretext other than that alleged temporal link.
Defendant provided undisputed evidence that all unvaccinated employees were terminated, and
that those with a religious exemption received better treatment by having a leave of absence before
termination. (Facts 15 to 18.) Also, two employees with religious exemptions were granted remote
work accommodation, which was unavailable to the named Plaintiffs because their physical
presence was required in the hospital. (Facts 10, 17). Under these facts, temporal proximity alone
is not sufficient to raise a triable issue as to pretext since SVMH has offered evidence of a
legitimate, nondiscriminatory reason for the termination.
The Motion for Summary Adjudication as to the Fourth Cause of Action for Retaliation is
GRANTED.
IT IS SO ORDERED.
Date: 5/11/2023
Judge of the Superior Court
8
TAB B
ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024)
2024 WL 1072210 Each of the Plaintiffs submitted a religious accommodation
Only the Westlaw citation is currently available. request stating that they sincerely hold religious beliefs that
United States District Court, E.D. New York. prevented them from complying with the Policy. Compl.
¶ 47; see generally Plaintiffs’ Declarations (“Pls. Decls.”),
ADAMOWICZ, ET. AL. Plaintiffs, ECF 1.2-1.26 (“My sincerely held religious beliefs extend
v. beyond the mere performance of abortions or receipt of an
NORTHWELL HEALTH INC., Defendant. abortion; I sincerely believe that if I were to knowingly inject,
ingest, or receive a product that I knew was created through
2:23-cv-01277-OEM-LGD the use of fetal cell line tissue, such action would impact
| my ability to ultimately go to Heaven. Because of this, I
Filed 03/12/2024 cannot comply with NHS’ mandatory Covid-19 vaccination
policy.”). Northwell Health rejected each plaintiff's requested
religious exemption. Compl. ¶¶ 40-41, 43.
MEMORANDUM AND ORDER
*2 Throughout September and October of 2021, each
ORELIA E. MERCHANT United States District Judge plaintiff was terminated by Northwell Health for failure to
comply with the Policy. Compl. ¶ 79.
*1 On February 16, 2023, Plaintiffs 1 commenced this
action asserting claims under Title VII of the Civil Rights
B. Filling of Charge of Discrimination with the EEOC
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). 2
According to the Complaint and the declarations attached
Plaintiffs challenge a workplace Covid-19 vaccination policy
implemented by their former employer, defendant Northwell thereto, 4 only two plaintiffs, Debra LoMonaco and Melanie
Health Inc. (“Northwell Health” or “Defendant”). Now Weiss, 5 successfully filed a formal charge of discrimination
before the Court is Northwell Health's motion to dismiss (“Charge”) - but only plaintiff LoMonaco filed a formal
the complaint pursuant to Federal Rule of Civil Procedure Charge with the Equal Employment Opportunity Commission
12(b)(6) for failure to state a claim. For the reasons below, (“EEOC”). 6 The remaining 23 plaintiffs (the “Untimely
Northwell Health's motion to dismiss the complaint is Plaintiffs”) each declare that, for various reasons, they were
GRANTED. “unable to formally file a charge despite believing [they] had
done so.” Declarations of Untimely Plaintiffs (“Untimely Pls.
Decls.”), ECF 1.2-1.14, 1.16-1.25. 7
BACKGROUND 3
Fifteen plaintiffs declare nearly identical experiences in
A. Plaintiffs’ Employment and Termination from varying general terms that they contacted the EEOC
Northwell Health in September or October of 2021; the EEOC did not
Plaintiffs were healthcare workers who worked at various communicate with them; the EEOC never permitted them to
sites or facilities within the Northwell Health system until complete an intake interview (“Intake Interview”) or file a
their termination. See Complaint (“Compl.”), ECF 1, ¶¶ 4-28, Charge; and as a result, they were not able to file a Charge,
78, 79. On August 18, 2021, nearly a year after the start despite believing they could, because the EEOC “lulled”
of the Covid-19 pandemic, Northwell Health implemented a them into that belief. 8 Specifically, each of these fifteen
new Covid-19 vaccination policy (the “Policy”) announcing plaintiffs state in their declarations that “[h]ad the EEOC
that employees including Plaintiffs, were required to become not lulled me into believing I was prohibited from filing a
fully vaccinated against Covid-19 in order to remain Charge of Discrimination, which the EEOC lulled me into
employed by Northwell Health. Compl. ¶¶ 33-36. The Policy believing through the misrepresentations made to me by the
stated that submitting negative Covid-19 tests could not EEOC Investigator, I would have timely filed a Charge of
replace the vaccination requirement. Compl. ¶ 36. Northwell
Discrimination.” 9
Health created a “Religious Exemption Request Form” and
instructed employees who sought a religious exemption to
complete the form by September 3, 2021. Compl. ¶ 38.
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024)
*3 The remaining plaintiffs’ declarations contain similar plausibly plead a prima facie claim in that they cannot
but more specific allegations that plaintiffs failed to file their establish they were qualified for their positions, nor can
EEOC Charges because the EEOC delayed or refused to they plausibly plead Northwell Health discriminated against
schedule an Intake Interview, 10 advised the Plaintiff to file them based upon their religious beliefs. Plaintiffs contend
that equitable tolling should apply to save their claims and
with a state agency instead, 11 advised Plaintiffs not to file a
that Defendant could have accommodated Plaintiffs without
Charge at all, 12 and provided a different initial contact date facing undue hardship.
with the EEOC. 13 One plaintiff states that the investigator
advised they would prepare their Charge but never did. 14
A. Plaintiffs’ Failure to Exhaust Administrative
Remedies
C. Procedural History Plaintiff asserting Title VII claims must first exhaust their
Plaintiffs filed the Complaint on February 16, 2023, and administrative remedies by filing a complaint with the EEOC
on July 31, 2023, Defendants filed a Motion to Dismiss. or the equivalent state agency and obtaining a notice of right-
Defendant's Memorandum in Support of Motion to Dismiss to-sue letter before filing in federal court. Williams v. N.Y.
(“Def. Memo”), ECF 16-1. Plaintiffs filed their opposition City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006); 42 U.S.C.
to Defendants’ motion to dismiss on August 14, 2023, (“Pl. § 2000e-5(e)(1). Exhaustion of remedies is a precondition to
Opp.”), ECF 17, and Defendants filed a reply on September suit rather than a jurisdictional requirement. Young v. Lord
18, 2023, (“Def. Reply”), ECF 19. On February 1, 2024, the & Taylor, LLC, 937 F. Supp. 2d 346, 352 (E.D.N.Y. 2013)
Court held heard oral argument on the motion. See Docket, (citing Francis v. City of New York, 235 F.3d 763, 768 (2d
Minute Entry dated 2/1/2024. Cir.2000)); Dimps v. Taconic Corr. Facility, No. 17-cv-8806
(NSR), 2019 U.S. Dist. LEXIS 46452, at *6 (S.D.N.Y. Mar.
20, 2019). “The purpose of this exhaustion requirement is to
give the administrative agency the opportunity to investigate,
LEGAL STANDARD mediate, and take remedial action.” Fowlkes v. Ironworkers
Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (quoting Brown v.
*4 To withstand a Rule 12(b)(6) motion to dismiss, a
Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)).
complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’
Charges of employment discrimination must also be timely
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
filed with the relevant administrative agency within 300 days
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
of an alleged unlawful practice. See AMTRAK v. Morgan, 536
is facially plausible when the alleged facts allow the court
U.S. 101, 109 (2002); Williams, 458 F.3d at 69 (stating that
to draw a “reasonable inference” of a defendant's liability
a Title VII claimant must make an EEOC filing within 300
for the alleged misconduct. Id. While the Court “must accept
days of the alleged discriminatory conduct). The EEOC is
as true all of the allegations contained in a complaint,” this
authorized to issue a right to sue notice letter if, after 180
“tenet ... is inapplicable to legal conclusions.” Id. “Threadbare
days from the charge filing, it has not acted on the charge. See
recitals of the elements of a cause of action, supported by mere
42 U.S.C. § 2000e-5(f)(1). A plaintiff then has 90 days from
conclusory statements, do not suffice.” Id. In considering this
receipt of a right-to-sue letter from the EEOC to file suit. Id.
motion, the Court “must limit itself to the facts stated in the
complaint, documents attached to the complaint as exhibits,
In all cases, it is the defendant's burden to prove the plaintiff
and documents incorporated by reference in the complaint.”
failed to exhaust her Title VII administrative remedies.
Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491
(2d Cir. 2018); see also Iowa Pub. Emps.’ Ret. Sys. v. MF
Glob., Ltd., 620 F.3d 137, 145 (2d Cir. 2010) (“An affirmative
DISCUSSION defense may be raised by a pre-answer motion to dismiss
under Rule 12(b)(6) ... if the defense appears on the face of
Defendant raises the following arguments in support of
the complaint.”) (internal quotation omitted).
dismissal: (1) Plaintiffs failed to exhaust their administrative
remedies by timely filing a Charge with the EEOC and
Northwell Health asserts that all Plaintiffs, except for Plaintiff
obtaining a right to sue letter; and (2) Plaintiffs fail to
Lomanco, failed to file a timely Charge with the EEOC
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2
ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024)
within the requisite time period. Def. Memo, ECF 16-1 at 04-CV-4336 (FB) (RML), 2005 U.S. Dist. LEXIS 21710, at
15
7. Indeed, the Untimely Plaintiffs each declared as much. *24 (E.D.N.Y. Sep. 29, 2005). 16 In fact, at oral argument,
Further, at oral argument, Plaintiffs’ counsel conceded the Plaintiffs’ counsel admitted on the record that the declarations
same and argued that the issue before the Court was whether lacked specificity and that they were conclusory. See Hr'g
the Untimely Plaintiffs were eligible for equitable tolling. Tr. 18:11-12 (“We're asking the Court as a matter of equity
Transcript of Oral Argument dated 02/01/2024 (“Hr'g Tr.”), to toll the time in which they were permitted to file a
18:9-20. charge and to obtain their right to sue letters based on the
conclusory declarations....”). Similarly, there is no showing of
*5 The Supreme Court has previously held that “filing “reasonable diligence” on the part of the Untimely Plaintiffs.
a timely charge of discrimination with the EEOC is not At oral argument, when pressed on why the Untimely
a jurisdictional prerequisite to suit in federal court, but a Plaintiffs were unable to file their Charge, counsel stated that
requirement that, like a statute of limitations, is subject to the plaintiffs could not navigate the EEOC website. 17 Hr'g
waiver, estoppel, and equitable tolling.” Zipes v. Trans World Tr. 13:3-8.
Airlines, Inc., 455 U.S. 385, 393 (1982); see also Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (holding *6 As described above, Plaintiffs’ declarations contain
that timing requirements applicable to Title VII suits against repeated conclusory statements that the EEOC did not
the federal government are similarly subject to equitable “permit” them to schedule an Intake Interview, did not
tolling); Hardaway v. Hartford Pub. Works Dep't, 879 F.3d “permit” them to file a Charge (or a timely Charge),
486, 491 (2d Cir. 2018). “To invoke equitable estoppel, a failed to communicate with them, “lied” to them, and that
plaintiff must show that: (1) the defendant made a definite something about the EEOC's “website, public portal, public
misrepresentation of fact and had reason to believe that the phone system, and other statements and representations lulled
plaintiff would rely on it, and (2) the plaintiff reasonably [them] into believing that [they] timely filed a Charge.” See,
relied on that misrepresentation to his detriment.” Buttry v. e.g., ECF 1-2, ¶ 25. Untimely Plaintiffs do not describe
General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995). actions taken or provide statements of any diligence on their
part that would rise to equitable relief requested. 18 Because
The Second Circuit has clarified that equitable tolling is a
the Untimely Plaintiffs failed to file their EEOC charges in
doctrine that is applied only where the person seeking its
the allotted amount time and their circumstances demonstrate
application has acted “with reasonable diligence.” Zerilli-
they are not warranted equitable tolling, the claims are all
Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d
Cir. 2003), as amended (July 29, 2003) (more than 12 calls untimely. 19 Accordingly, plaintiffs’ claims related to the
to EEOC did not invoke equitable tolling); see also Perez untimely charges must be dismissed for plaintiffs’ failure to
v. Harbor Freight Tools, 15-cv-05983 ADS SIL, 2016 WL fully exhaust and comport with the administrative remedies.
4734635, at *7 (E.D.N.Y. Sept. 9, 2016) (“many district courts Mazurkiewicz v. N.Y.C. Health & Hosps. Corp., 585 F. Supp.
in this Circuit have found that a non-employer's misleading 2d 491, 497 (S.D.N.Y. 2008).
conduct, such as a staff member at the EEOC, is insufficient
to warrant equitable tolling”), aff'd 698 F. App'x 627 (2d Cir.
B. Plaintiffs Fails to Plausibly Allege a Title VII Claim
2017); Carasco v. New York City Off-Track Betting Corp., 858
Even if Plaintiffs had appropriately filed before the EEOC,
F. Supp. 28, 32 (S.D.N.Y. 1994) (rejecting tolling argument
Plaintiffs’ Complaint fails to adequately plead a religious
based on plaintiff's contention that on an unspecified date she
discrimination claim under Title VII, Title VII prohibits
telephoned EEOC and was misinformed about time period to
an employer from discriminating “against any individual ...
file Charge), aff'd, 50 F.3d 3 (2d Cir. 1995).
because of such individual's ... religion [or] sex.” 42 U.S.C. §
2000e-2(a)(1). For a Title VII discrimination claim to survive
Defendant argues that Plaintiffs’ vague and conclusory
a motion to dismiss, a plaintiff must plausibly allege “(1)
allegations are insufficient to invoke the equitable tolling
she is a member of a protected class; (2) she is qualified
doctrine. Hr'g Tr. 24:8-12. The Court agrees. None of the 24
for her position; (3) she suffered an adverse employment
declarations contain sufficient factual matter demonstrating
action; and (4) the circumstances give rise to an inference
neither “definite misrepresentations of fact” made by the
of discrimination.” Vega v. Hempstead Union Free Sch.
EEOC or its agents nor “reasonable reliance” in delaying
Dist., 801 F.3d 72, 83 (2d Cir. 2015) (citation omitted); see
the filing of their charges. Syrkin v. State Univ. of N.Y., No.
also Sumar v. Brooklyn Hosp. Ctr., No. 22-CV-7390 (RPK)
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 3
ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024)
(MMH), 2023 U.S. Dist. LEXIS 222004, at *5 (E.D.N.Y. Dec. purportedly discriminatory intent but only that a refusal
13, 2023). The burden then shifts to the employer to show that was predicated on an undue burden. In fact, the Complaint
it could not reasonably accommodate plaintiff without undue itself acknowledges that Northwell Health “did not contest
hardship on the conduct of the employer's business. See 42 the validity of [Plaintiffs’] religious beliefs.” See Compl. ¶
U.S.C. § 2000e(j); Ansonia Bd. of Educ. v. Philbrook, 479 51 (“Northwell relied upon Title 10 N.Y. Comp. Codes R.
U.S. 60, 63 (1986). & Regs. ¶ 2.61,” which “made it unlawful for Northwell
to exempt its employees from being vaccinated against
An employer does not violate Title VII, however, if it can Covid-19 on the basis of their religion.”). Further, the 26
show that the prospective accommodation “would cause the individual declarations are devoid of any factual allegations
employer to suffer an undue hardship.” Cosme v. Henderson, that any Plaintiff experienced religious discrimination by
287 F.3d 152, 158 (2d Cir. 2002). Undue hardship is “shown Northwell. None show Northwell engaging in degrading
when a burden is substantial in the overall context of an conduct based the Plaintiff's religion. Equally, none contain
employer's business.” Groff v. DeJoy, 600 U.S. 447, 468, 143 any allegation of invidious comments made by Northwell
S. Ct. 2279, 216 L. Ed. 2d 1041 (2023); accord D'Cunha v. about other religious employees. Thus, the failure to allege
Northwell Health Sys., No. 23-476-cv, 2023 U.S. App. LEXIS any facts as to even an inference of discrimination dooms
30612, at *6-7 (2d Cir. Nov. 17, 2023). Plaintiffs’ claims.
1. Plaintiffs Fail to Plead Sufficient 2. Undue Hardship
Religious Discrimination
Even if Plaintiffs had made out a prima facie case of
Plaintiffs fail to adequately plead a religious discrimination r
Preview
ELISA NADEAU, Bar No. 199000 1 enadeau@littler.com YURI CHOY, Bar No. 257811 2 ychoy@littler.com LITTLER MENDELSON, P.C. 3 50 W. San Fernando St., 7th Floor San Jose, California 95113.2431 4 Telephone: 408.998.4150 Fax No.: 408.288.5686 5 (Additional Counsel on the Following Page) 6 7 Attorneys for Defendant SALINAS VALLEY HEALTH 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF MONTEREY 11 CRISTINA ARAUJO, MAYA ATKINS, Case No. 22CV000011 12 RAFAEL BARRAGAN, PATRICK BURNS, LATOYA CALDER, KIANA COX, ERIKA ASSIGNED FOR ALL PURPOSES TO 13 CRAFT, SALVADOR DELAHNO, JUDGE VANESSA W. VALLARTA, DEPT. FLORMELISSA FERNANDEZ, JOSHUA 13A 14 GARNETT, JOSE GUZMAN, JAY HARRIS, VANITY HORTON, IANA JOHNSON, DEFENDANT SALINAS VALLEY 15 VANESSA LOCKARD, MARIA HEALTH’S APPENDIX OF MONTENEGRO, MARY NARAYAN, GAYL AUTHORITIES IN SUPPORT OF 16 PINA, JULIE MARIE PLEMMONS, IRACEMA MOTION FOR DIRECTED VERDICT REGALADO, CLAUDIA SERRANO, AFTER MISTRIAL; CCP § 630(f) 17 CORDELIA SIDIJAYA, DESIREE STOUT, ANNE THOMAS, MARIA TORCULAS- Date: April 12, 2024 18 DELAHNO, RACHEL VELASCO, JULIA Time: 11:00 a.m. VENOY, WENDY WARD, MA TERESA Dept.: 13A 19 YASAY, 20 Plaintiffs, Trial Date: February 05, 2024 Complaint Filed: January 3, 2022 21 v. FAC Filed: January 14, 2022 22 SALINAS VALLEY MEMORIAL HEALTHCARE SYSTEM, and DOES 1-50, 23 inclusive, 24 Defendant. 25 26 27 28 1 Case No. 22CV000011 SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER MISTRIAL; CCP § 630(F) 1 JOSHUA KIENITZ, Bar No. 244903 jkienitz@littler.com 2 MARGARET ‘ELLIE’ MCPIKE, Bar No. 335504 emcpike@littler.com 3 LITTLER MENDELSON, P.C. 101 Second Street, Suite 1000 4 San Francisco, California 94105 Telephone: 415.433.1940 5 Fax No.: 415.399.8490 6 HELENE WASSERMAN, Bar No. 130134 hwasserman@littler.com 7 LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor 8 Los Angeles, California 90067 Telephone: 310.553.0308 9 Fax No.: 310.553.5583 10 ALYSSA GJEDSTED, Bar No. 284588 agjedsted@littler.com 11 LITTLER MENDELSON P.C. 633 W. 5th St, 63rd Fl. 12 Los Angeles, CA 90071 Telephone: 213.443.4300 13 Fax No.: 213.443.4299 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 22CV000011 SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER MISTRIAL; CCP § 630(F) 1 TO THE HONORABLE COURT, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 2 Defendant SALINAS VALLEY MEMORIAL HEALTHCARE SYSTEM (“Defendant”) 3 submits the following Appendix of court decisions cited in Defendant’s Motion for Directed Verdict 4 Where Jury Discharged Without Rendering Verdict. 5 6 Tab Authority A. May 11, 2023 Order Granting, In Part, Defendant Salinas Valley Memorial Healthcare 7 System's Motion For Summary Judgment, Or Alternatively, Motion For Summary 8 Adjudications B. Adamowicz v. Northwell Health Inc. (E.D.N.Y., Mar. 12, 2024) 2024 WL 1072210 9 C. Ansonia Board of Education v. Philbrook (1986) 479 U.S. 60, 68 10 D. Beickert v. New York City Department of Education (E.D.N.Y., Sept. 25, 2023) 2023 11 WL 6214236 12 E. Bushra v. Main Line Health, Inc. (E.D. Pa., Dec. 28, 2023) 2023 WL 9005584 F. Does 1-6 v. Mills (1st Cir. 2021) 16 F.4th 20 13 G. EEOC v. Oak-Rite Mfg. Corp., 2001 WL 1168156 14 H. Fugazzi v. Southern Pac. Co. (9th Cir. 1953) 208 F.2d 205 15 I. Groff v. DeJoy, (2023) 600 U.S. 447, 468- 471 16 J. Humphrey v. Memorial Hospitals Association (9th Cir. 2001) 239 F.3d 1128 17 K. Kelly v. Wal Mart Stores, Inc. (2017) 291 F.Supp.3d 1145 L. Kimbro v. Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869 18 M. Moore v. Montefiore Medical Center (S.D.N.Y., Nov. 3, 2023) 2023 WL 7280476 19 N. Robinson v. Children’s Hosp. Bos. (D. Mass. Apr. 5, 2016) 2016 WL 1337255 20 O. Smith v. City of Atl. City (D.N.J. Nov. 28, 2023) 2023 WL 8253025 21 P. Together Employees v. Mass General Brigham Incorporated (D. Mass. 2021) 573 F.Supp.3d 412, 436, aff’d (1st Cir. 2022) 32 F.4th 82 22 Q. US Airways, Inc. v. Barnett (2002) 535 U.S. 391 23 24 25 26 27 28 Case No. 22CV000011 SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER MISTRIAL; CCP § 630(F) 1 Dated: March 20, 2024 LITTLER MENDELSON, P.C. 2 3 4 ELISA NADEAU HELENE WASSERMAN 5 JOSHUA KIENITZ ALYSSA GJEDSTED 6 YURI CHOY MARGARET ‘ELLIE’ MCPIKE 7 Attorneys for Defendant 8 SALINAS VALLEY HEALTH 9 4878-3405-4319.1 / 067898-1062 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. 22CV000011 SVH’S APPENDIX OF AUTHORITIES IN SUPPORT OF MOTION FOR DIRECTED VERDICT AFTER MISTRIAL; CCP § 630(F) TAB A ELECTRONICALLY FILED BY SUPERIOR COURT OF CALIFORNIA Superior Court of California, COUNTY OF MONTEREY County of Monterey On 05/11/2023 By Deputy: Olalia, Sonia CRISTINA ARAUJO, et. al, 22CV000011 Plaintiffs, vs. ORDER GRANTING, IN PART, DEFENDANT SALINAS VALLEY SALINAS VALLEY MEMORIAL HEALTH MEMORIAL HEAL TH CARE SYSTEM'S CARE SYSTEM, and DOES 1-50, inclusive, MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, MOTION FOR Defendants. SUMMARY ADJUDICATION Defendant Salinas Valley Memorial Healthcare System's ("SVMH") Motion for Summary Judgment, or Alternatively, Motion for Summary Adjudication ("Motion"), came on for hearing on February 17, 2023 in Department 14 of the above-referenced court, the Honorable Carrie M. Panetta presiding. Elisa Nadeau and Joshua Kienitz appeared for SVMH and Daniel Watkins and Scott Lee appeared for the Plaintiffs. The court made rulings on that date and continued the hearing to February 27, 2023 for additional consideration of the parties' arguments regarding Causes of Action One, Three and Four. The court read and considered all of the papers filed in support and in opposition of the Motion and oral argument presented at the hearing, and made the following rulings at the first hearing on February 17, 2023: 1. As to Plaintiffs' objections to the Declaration of Michelle Childs, the court accepted Ms. Childs' declaration expressing the policies and communications of SVMH and the reasons for actions taken by SVMH based on her position as the Chief Human Resource Officer for SVMH. However, the court sustained the objections to her statements calling for legal conclusions, such as whether SVMH would suffer undue hardship by accommodating the Plaintiffs' religious beliefs (Paragraphs 24, 32, 44) and whether SVMH had an employment relationship with Dr. Guzman at any time relevant to this action (Paragraph 42). 2. The court overruled SVMH's objections to Plaintiffs' Declarations for the most part. The court accepted Plaintiffs' statements regarding their beliefs about their work performance and about fetal cell lines research, not for the truth of those matters, but for Plaintiffs' state of mind related to their religious beliefs. The court sustained the objection to Plaintiffs' statements regarding reasonable accommodation as calling for a legal conclusion. 3. The court found that the objection to those portions of Jose Guzman's Declaration, Paragraph 17, that recite hearsay is properly sustained as hearsay. However, the contract is attached as Exhibit U to the declaration of Ms. Childs, without objection to the actual document. 4. The court granted SVMH's request for judicial notice of media briefings, news releases, CDC reports, media articles and analysis. However, notice is granted as to the existence of those items but not for the truth of the matters asserted therein. 5. The court granted Plaintiffs' request for judicial notice of the California Department of Public Health and The Bible. 6. Pursuant to Plaintiffs' concession, the court granted summary adjudication as to the Second Cause of Action for Failure to Engage in Interactive Process and the Fifth Cause of Action for Wrongful Discharge in Violation of Public Policy. 7. The court denied the Motion as to Plaintiff Julia Venoy, finding that a triable issue of material fact (Fact No. 30) existed as to whether PlaintiffVenoy suffered an adverse employment action, specifically whether her retirement was forced due to the hospital's policy about employees not returning to work unless vaccinated. (See Declaration of Julia Venoy, Paragraphs 11-13 and Ms. Childs' September 10, 2021 email to Ms. Venoy - see Childs Declaration, Exhibit L.) 8. The court denied the Motion as to Plaintiff Jose Guzman, finding that a triable issue of material fact (Fact No. 21) existed as to whether Dr. Guzman has standing to sue the hospital under FEHA. An "employee' for purposes of FEHA is any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, but not one who is an independent contractor as defined in Labor Code section 3353. (See Cal. Code Regs., tit. 2, § 11008(c).) Plaintiffs incorrectly argued that Dr. Guzman is an employee under the Dynamex case. Labor Code section 2783 provides that the holding in Dynamex does not apply to physicians, and instead, the determination of employee or independent contractor status for individuals in those occupations shall be governed by S. G. Borello & Sons, Inc. v. Department ofIndustrial Relations 2 ( 1989) 48 Cal.3d 341. Ms. Childs indicated that SVMH had no control over the day-to-day employment of Dr. Guzman, including supervision, training, and other indicia of employment (Childs Declaration, Paragraph 41). Ms. Childs presented a copy of the contract with Cypress Coast Anesthesiologist Medical Group (Childs Declaration, Exhibit U). That contract provides that Dr. Guzman's services are exclusive to SVMH and he needs SVMH's approval to provide services at another facility, and that SVMH controls how much he can charge patients for services. (See also Guzman Declaration, Paragraphs 17-18.) Therefore, there is a triable issue of material fact as to whether Dr. Guzman is an independent contractor pursuant to Labor Code section 3353 or an employee for purposes of FEHA. The court continued the hearing for further consideration of the First, Third and Fourth Causes of Action. After hearing further oral argument from counsel, the court issues this order, ruling on the arguments made in SVMH's Separate Statement of Undisputed Facts. I. "ISSUE ONE: Plaintiffs' First And Third Causes Of Action Under FEHA Fail Because Plaintiffs Cannot Meet Their Prima Facie Burden To Show A Religious (Rather Than Philosophical) Objection To The Vaccine." SVMH contends there is no actual conflict between Plaintiffs' religious faiths and being vaccinated. (Fact No. 3). SVMH fails to address each plaintiff individually and the cited evidence is to the collection of requests for religious exemptions. While it is true that personal preferences are not beliefs protected by FEHA, Plaintiffs have created a triable issue of material fact based on their declarations of religious beliefs conflicting with the possible use of fetal cell lines in the creation of the vaccines. (See, e.g., Declarations of Jay Harris, Vanity Horton, Lana Johnson, and Vanessa Lockard and Childs Declaration, Exhibit K.) Plaintiffs declare receipt of an email from Michelle Childs announcing the offer of an unpaid leave of absence which stated that "[t]he information and documentation you have presented sufficiently establishes your entitlement to a religious exemption under prevailing legal standards." (See, e.g., Declaration of Gayl Pina, Paragraph 10.) Defendant has failed to present admissible evidence that this element of Plaintiffs' prima facie case is lacking. II. "ISSUES TWO AND THREE: Plaintiffs' First And Third Causes Of Action Under FEHA Fail Because Allowing Unvaccinated Employees To Work In The 3 Hospital Would Have Been An Undue Hardship ... And SVMH Reasonably Explored Alternatives To A Leave Of Absence And Separation." The court notes that, as was discussed at the hearing, there is a question as to which party has the initial burden as to the first cause of action, and whether the McDonnell Douglas burden shifting analysis or the traditional summary judgment burden analysis applies in this case. "The Courts of Appeal have pondered how the McDonnell Douglas formula should apply, under California law, to an employer's motion for summary judgment against a claim of prohibited discrimination. Code of Civil Procedure section 437c provides that on summary judgment, the moving party must establish entitlement to 'judgment as a matter of law.' (Id., subd. (c).) A moving defendant may do so by 'show[ing]' that the plaintiffs action 'has no merit' (id., subds. (a), (o )(2)), i.e., that 'one or more elements ... cannot be established' or 'there is a complete defense' (ibid.). Only after the defendant has met that burden must the plaintiff respond with admissible evidence raising a triable issue. (Ibid.)" ( Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 356.) However, several California courts have suggested that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial no-merit showing, the McDonnell Douglas burdens are reversed on a defense motion for summary judgment against a claim of discrimination in employment (Id.). This court does not need to resolve the prima facie burden on this issue, because SVMH did not simply rely on the argument that Plaintiffs failed to demonstrate a prima facie case of discrimination, but instead, proceeded to the second step of the McDonnell Douglas formula. (See Guz, 24 Cal.4 th at 357.) SVMH argues "undue hardship" as to both the first and third causes of action. At the hearing on February 17, 2023, the Court inquired of counsel whether the analysis of undue hardship is the same for both the discrimination cause of action and the failure to accommodate cause of action. Both counsel agreed that the analysis is different (notwithstanding defense counsel arguing the undue hardship analysis as to both causes of action). SVMH argues that Plaintiffs have not alleged disparate treatment, yet Plaintiffs' Opposition cites to CACI Jury Instruction No. 2500 for the elements of disparate treatment based on religion. Accordingly, as to the First Cause of Action for Religious Discrimination, the Court has considered the Undisputed Material Facts in light of the traditional analysis of disparate treatment and interpreted the phrasing of Issue No. 2 regarding "undue hardship" as meaning SVMH 4 proffered a legitimate, non-discriminatory reason for terminating the unvaccinated employees, without a motive to discriminate. Therefore, whether SVMH would suffer an "undue hardship" is only at issue for the Third Cause of Action for Failure to Accommodate. The case of Harris v. City of Santa Monica (2013) 56 Cal.4th 203 is instructive. Similar to the defendant in Harris, SVMH passes the "but for" test. SVMH has established that "but for" their religious beliefs, Plaintiffs still would have been terminated. In Harris, the California Supreme Court expounded on the expansive meaning of the "because of' language in section 12940(a). The Harris court proceeded to address the legal consequences that flow from an employer's proof that it would have made the same employment decision in the absence of any discrimination. Here, Plaintiffs have failed to show that their religious beliefs were a substantial factor (even if not a "but for" cause) for the action taken by SVMH. SVMH argues that its clinical judgment was that requiring the vaccine, in addition to non- pharmaceutical interventions and methods, would be the best protection against severe disease and hospitalization, particularly for vulnerable patients. (See Childs Declaration, Paragraph 24 and Radner Declaration, Paragraph13.) As addressed in Guz, 24 Cal.4th at 358, "if nondiscriminatory, [Defendant's] true reasons need not necessarily have been wise or correct. (See, e.g., Horn, supra, 72 Cal.App.4th 798, 807; Hersant, supra, 57 Cal.App.4th 997, 1009.) While the objective soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons ... in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. " Here, SVMH met its burden based on the evidence that it treated all unvaccinated employees alike. And although a religious exemption was possible, the CDPH order, dated August 5, 2021, stated that"[ v]accination against COVID-19 is the most effective means of preventing infection with the COVID-19 virus ... " and "all health care workers must be vaccinated to reduce the chance of transmission to vulnerable populations." (Childs Declaration, Exhibit F, page 2, Paragraph 2) Further, according to the Declaration of Ms. Childs (Paragraph 30), very limited hours of remote work were available to some hospital employees, but none of the named Plaintiffs were offered remote work because their positions could not accommodate it, they declined interest in it, or some combination of those reasons. All parties agree that the named Plaintiffs' work required 5 interfacing with patients and other staff. (Fact 10, Undisputed.) Therefore, SVMH could not simply reassign the Plaintiffs to other positions. In fact, at least two individuals with religious exemptions, who are not part of this action, were provided with remote work where their job duties allowed for it. (Childs Declaration, Paragraph 30.) Therefore, SVMH presented a legitimate non- discriminatory reason for requiring all employees to be vaccinated or terminated. Because SVMH provided a legitimate reason for its action, the burden shifted to Plaintiffs to prove by substantial evidence that the legitimate reason proffered by the employer was untrue and was merely a pretext for discrimination. (See McDonnell Douglas Corp. v. Green ( 1973) 411 U.S. 792, 804.) To defeat the motion, Plaintiffs were required to point to evidence raising a triable issue that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851.) Even when viewing the evidence in the light most favorable to Plaintiffs, that burden has not been met. There simply is no evidence that Plaintiffs were treated any differently than those unvaccinated employees who did not claim a religious exemption. The Motion for Summary Adjudication as to the First Cause of Action for Discrimination is GRANTED. Regarding the Third Cause of Action for Failure to Provide Reasonable Accommodation, Government Code § 12926(u) defines "undue hardship" as an action requiring significant difficulty or expense in light of the operations and overall resources of the employer. SVMH provided no evidence as to expense or difficulty with implementing a testing and masking regime, as allowed under the California Department of Public Health Order of August 5, 2021, for workers requesting exemption due to religious belief. SVMH offered its Facts numbered 4-7 regarding its belief that requiring the vaccine in addition to the non-pharmaceutical interventions would be the best protection against severe disease, hospitalization and death for vulnerable patients, and that allowing unvaccinated employees to work in the hospital from November 1, 2021 through October 12, 2022 would increase those risks. SVMH argues that it believed that alternatives to vaccination, such as masks and testing, were not reasonable accommodations because of the safety risk, such that maximal protection of staff and patients would be achieved by using a combination of interventions -- with vaccination as an essential component. Defendant offers medical evidence by way of the declarations of Dr. Radner and Dr. Reingold. Plaintiffs offer their competing expert testimony as to the risks from Dr. 6 Lindsay, Dr. Burke, and Dr. Bhattacharya. Therefore, a triable issue of material fact exists regarding the risks known at the time of SVMH's decision and whether it was an undue hardship to allow the unvaccinated employees to work in person as their jobs required. The Motion for Summary Adjudication as to the Third Cause of Action for Failure to Provide Reasonable Accommodation is DENIED. III. ISSUES FOUR AND FIVE: "Plaintiffs' Fourth Cause Of Action For Retaliation Fails Because Providing Maximal Protection Against COVID-19 Was SVMH's Legitimate And Nondiscriminatory Reason For Placing Plaintiffs On Leave And Separating Their Employment ... And Plaintiffs Cannot Prove [This Reason] Was A Pretext For Religious Discrimination." "[I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action .... Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action .... If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, citations omitted.) For SVMH to prevail on the Motion as to this cause of action, it must show either that ( 1) Plaintiffs could not establish one of the elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for SVMH's decision to terminate Plaintiffs' employment. (See Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076, 1090-1091.) In response to Plaintiffs' prima facie case of Retaliation, SVMH presented a legitimate, nonretaliatory reason for the termination of the employees through the medical declarations of Dr. Radner and Dr. Reingold. SVMH argues that providing maximum protection against COVID-19, protecting patients and co-worker safety are legitimate reasons for the action taken against Plaintiffs. The burden then shifted to Plaintiffs to show a triable issue by producing substantial evidence that the stated reason is untrue or pretextual. The Opposition argues, without using the word "pretext", that SVMH ignored its own guidance that unvaccinated exempt employees would continue to work while masking, testing and distancing. Plaintiffs refer to the July 28, 2021 email communication "Employee Update" which included information that after September 30, weekly 7 testing instead of vaccination will only be an option for those with an approved medical or religious accommodation. (Childs Declaration, Exhibit E.) At that time, the policy for on-site workers included accommodation of weekly testing for those with an approved religious exemption. The Employee Update also informed staff that the hospital was working on developing the process regarding employees who cannot be vaccinated for medical safety reasons, or who have a personal religious objection to vaccination. Plaintiffs submitted their requests for religious accommodation, and then the weekly testing accommodation was no longer available. Plaintiffs have submitted no additional evidence regarding pretext other than that alleged temporal link. Defendant provided undisputed evidence that all unvaccinated employees were terminated, and that those with a religious exemption received better treatment by having a leave of absence before termination. (Facts 15 to 18.) Also, two employees with religious exemptions were granted remote work accommodation, which was unavailable to the named Plaintiffs because their physical presence was required in the hospital. (Facts 10, 17). Under these facts, temporal proximity alone is not sufficient to raise a triable issue as to pretext since SVMH has offered evidence of a legitimate, nondiscriminatory reason for the termination. The Motion for Summary Adjudication as to the Fourth Cause of Action for Retaliation is GRANTED. IT IS SO ORDERED. Date: 5/11/2023 Judge of the Superior Court 8 TAB B ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024) 2024 WL 1072210 Each of the Plaintiffs submitted a religious accommodation Only the Westlaw citation is currently available. request stating that they sincerely hold religious beliefs that United States District Court, E.D. New York. prevented them from complying with the Policy. Compl. ¶ 47; see generally Plaintiffs’ Declarations (“Pls. Decls.”), ADAMOWICZ, ET. AL. Plaintiffs, ECF 1.2-1.26 (“My sincerely held religious beliefs extend v. beyond the mere performance of abortions or receipt of an NORTHWELL HEALTH INC., Defendant. abortion; I sincerely believe that if I were to knowingly inject, ingest, or receive a product that I knew was created through 2:23-cv-01277-OEM-LGD the use of fetal cell line tissue, such action would impact | my ability to ultimately go to Heaven. Because of this, I Filed 03/12/2024 cannot comply with NHS’ mandatory Covid-19 vaccination policy.”). Northwell Health rejected each plaintiff's requested religious exemption. Compl. ¶¶ 40-41, 43. MEMORANDUM AND ORDER *2 Throughout September and October of 2021, each ORELIA E. MERCHANT United States District Judge plaintiff was terminated by Northwell Health for failure to comply with the Policy. Compl. ¶ 79. *1 On February 16, 2023, Plaintiffs 1 commenced this action asserting claims under Title VII of the Civil Rights B. Filling of Charge of Discrimination with the EEOC Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). 2 According to the Complaint and the declarations attached Plaintiffs challenge a workplace Covid-19 vaccination policy implemented by their former employer, defendant Northwell thereto, 4 only two plaintiffs, Debra LoMonaco and Melanie Health Inc. (“Northwell Health” or “Defendant”). Now Weiss, 5 successfully filed a formal charge of discrimination before the Court is Northwell Health's motion to dismiss (“Charge”) - but only plaintiff LoMonaco filed a formal the complaint pursuant to Federal Rule of Civil Procedure Charge with the Equal Employment Opportunity Commission 12(b)(6) for failure to state a claim. For the reasons below, (“EEOC”). 6 The remaining 23 plaintiffs (the “Untimely Northwell Health's motion to dismiss the complaint is Plaintiffs”) each declare that, for various reasons, they were GRANTED. “unable to formally file a charge despite believing [they] had done so.” Declarations of Untimely Plaintiffs (“Untimely Pls. Decls.”), ECF 1.2-1.14, 1.16-1.25. 7 BACKGROUND 3 Fifteen plaintiffs declare nearly identical experiences in A. Plaintiffs’ Employment and Termination from varying general terms that they contacted the EEOC Northwell Health in September or October of 2021; the EEOC did not Plaintiffs were healthcare workers who worked at various communicate with them; the EEOC never permitted them to sites or facilities within the Northwell Health system until complete an intake interview (“Intake Interview”) or file a their termination. See Complaint (“Compl.”), ECF 1, ¶¶ 4-28, Charge; and as a result, they were not able to file a Charge, 78, 79. On August 18, 2021, nearly a year after the start despite believing they could, because the EEOC “lulled” of the Covid-19 pandemic, Northwell Health implemented a them into that belief. 8 Specifically, each of these fifteen new Covid-19 vaccination policy (the “Policy”) announcing plaintiffs state in their declarations that “[h]ad the EEOC that employees including Plaintiffs, were required to become not lulled me into believing I was prohibited from filing a fully vaccinated against Covid-19 in order to remain Charge of Discrimination, which the EEOC lulled me into employed by Northwell Health. Compl. ¶¶ 33-36. The Policy believing through the misrepresentations made to me by the stated that submitting negative Covid-19 tests could not EEOC Investigator, I would have timely filed a Charge of replace the vaccination requirement. Compl. ¶ 36. Northwell Discrimination.” 9 Health created a “Religious Exemption Request Form” and instructed employees who sought a religious exemption to complete the form by September 3, 2021. Compl. ¶ 38. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024) *3 The remaining plaintiffs’ declarations contain similar plausibly plead a prima facie claim in that they cannot but more specific allegations that plaintiffs failed to file their establish they were qualified for their positions, nor can EEOC Charges because the EEOC delayed or refused to they plausibly plead Northwell Health discriminated against schedule an Intake Interview, 10 advised the Plaintiff to file them based upon their religious beliefs. Plaintiffs contend that equitable tolling should apply to save their claims and with a state agency instead, 11 advised Plaintiffs not to file a that Defendant could have accommodated Plaintiffs without Charge at all, 12 and provided a different initial contact date facing undue hardship. with the EEOC. 13 One plaintiff states that the investigator advised they would prepare their Charge but never did. 14 A. Plaintiffs’ Failure to Exhaust Administrative Remedies C. Procedural History Plaintiff asserting Title VII claims must first exhaust their Plaintiffs filed the Complaint on February 16, 2023, and administrative remedies by filing a complaint with the EEOC on July 31, 2023, Defendants filed a Motion to Dismiss. or the equivalent state agency and obtaining a notice of right- Defendant's Memorandum in Support of Motion to Dismiss to-sue letter before filing in federal court. Williams v. N.Y. (“Def. Memo”), ECF 16-1. Plaintiffs filed their opposition City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006); 42 U.S.C. to Defendants’ motion to dismiss on August 14, 2023, (“Pl. § 2000e-5(e)(1). Exhaustion of remedies is a precondition to Opp.”), ECF 17, and Defendants filed a reply on September suit rather than a jurisdictional requirement. Young v. Lord 18, 2023, (“Def. Reply”), ECF 19. On February 1, 2024, the & Taylor, LLC, 937 F. Supp. 2d 346, 352 (E.D.N.Y. 2013) Court held heard oral argument on the motion. See Docket, (citing Francis v. City of New York, 235 F.3d 763, 768 (2d Minute Entry dated 2/1/2024. Cir.2000)); Dimps v. Taconic Corr. Facility, No. 17-cv-8806 (NSR), 2019 U.S. Dist. LEXIS 46452, at *6 (S.D.N.Y. Mar. 20, 2019). “The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, LEGAL STANDARD mediate, and take remedial action.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (quoting Brown v. *4 To withstand a Rule 12(b)(6) motion to dismiss, a Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)). complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Charges of employment discrimination must also be timely ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell filed with the relevant administrative agency within 300 days Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim of an alleged unlawful practice. See AMTRAK v. Morgan, 536 is facially plausible when the alleged facts allow the court U.S. 101, 109 (2002); Williams, 458 F.3d at 69 (stating that to draw a “reasonable inference” of a defendant's liability a Title VII claimant must make an EEOC filing within 300 for the alleged misconduct. Id. While the Court “must accept days of the alleged discriminatory conduct). The EEOC is as true all of the allegations contained in a complaint,” this authorized to issue a right to sue notice letter if, after 180 “tenet ... is inapplicable to legal conclusions.” Id. “Threadbare days from the charge filing, it has not acted on the charge. See recitals of the elements of a cause of action, supported by mere 42 U.S.C. § 2000e-5(f)(1). A plaintiff then has 90 days from conclusory statements, do not suffice.” Id. In considering this receipt of a right-to-sue letter from the EEOC to file suit. Id. motion, the Court “must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, In all cases, it is the defendant's burden to prove the plaintiff and documents incorporated by reference in the complaint.” failed to exhaust her Title VII administrative remedies. Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018); see also Iowa Pub. Emps.’ Ret. Sys. v. MF Glob., Ltd., 620 F.3d 137, 145 (2d Cir. 2010) (“An affirmative DISCUSSION defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6) ... if the defense appears on the face of Defendant raises the following arguments in support of the complaint.”) (internal quotation omitted). dismissal: (1) Plaintiffs failed to exhaust their administrative remedies by timely filing a Charge with the EEOC and Northwell Health asserts that all Plaintiffs, except for Plaintiff obtaining a right to sue letter; and (2) Plaintiffs fail to Lomanco, failed to file a timely Charge with the EEOC © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024) within the requisite time period. Def. Memo, ECF 16-1 at 04-CV-4336 (FB) (RML), 2005 U.S. Dist. LEXIS 21710, at 15 7. Indeed, the Untimely Plaintiffs each declared as much. *24 (E.D.N.Y. Sep. 29, 2005). 16 In fact, at oral argument, Further, at oral argument, Plaintiffs’ counsel conceded the Plaintiffs’ counsel admitted on the record that the declarations same and argued that the issue before the Court was whether lacked specificity and that they were conclusory. See Hr'g the Untimely Plaintiffs were eligible for equitable tolling. Tr. 18:11-12 (“We're asking the Court as a matter of equity Transcript of Oral Argument dated 02/01/2024 (“Hr'g Tr.”), to toll the time in which they were permitted to file a 18:9-20. charge and to obtain their right to sue letters based on the conclusory declarations....”). Similarly, there is no showing of *5 The Supreme Court has previously held that “filing “reasonable diligence” on the part of the Untimely Plaintiffs. a timely charge of discrimination with the EEOC is not At oral argument, when pressed on why the Untimely a jurisdictional prerequisite to suit in federal court, but a Plaintiffs were unable to file their Charge, counsel stated that requirement that, like a statute of limitations, is subject to the plaintiffs could not navigate the EEOC website. 17 Hr'g waiver, estoppel, and equitable tolling.” Zipes v. Trans World Tr. 13:3-8. Airlines, Inc., 455 U.S. 385, 393 (1982); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (holding *6 As described above, Plaintiffs’ declarations contain that timing requirements applicable to Title VII suits against repeated conclusory statements that the EEOC did not the federal government are similarly subject to equitable “permit” them to schedule an Intake Interview, did not tolling); Hardaway v. Hartford Pub. Works Dep't, 879 F.3d “permit” them to file a Charge (or a timely Charge), 486, 491 (2d Cir. 2018). “To invoke equitable estoppel, a failed to communicate with them, “lied” to them, and that plaintiff must show that: (1) the defendant made a definite something about the EEOC's “website, public portal, public misrepresentation of fact and had reason to believe that the phone system, and other statements and representations lulled plaintiff would rely on it, and (2) the plaintiff reasonably [them] into believing that [they] timely filed a Charge.” See, relied on that misrepresentation to his detriment.” Buttry v. e.g., ECF 1-2, ¶ 25. Untimely Plaintiffs do not describe General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995). actions taken or provide statements of any diligence on their part that would rise to equitable relief requested. 18 Because The Second Circuit has clarified that equitable tolling is a the Untimely Plaintiffs failed to file their EEOC charges in doctrine that is applied only where the person seeking its the allotted amount time and their circumstances demonstrate application has acted “with reasonable diligence.” Zerilli- they are not warranted equitable tolling, the claims are all Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003), as amended (July 29, 2003) (more than 12 calls untimely. 19 Accordingly, plaintiffs’ claims related to the to EEOC did not invoke equitable tolling); see also Perez untimely charges must be dismissed for plaintiffs’ failure to v. Harbor Freight Tools, 15-cv-05983 ADS SIL, 2016 WL fully exhaust and comport with the administrative remedies. 4734635, at *7 (E.D.N.Y. Sept. 9, 2016) (“many district courts Mazurkiewicz v. N.Y.C. Health & Hosps. Corp., 585 F. Supp. in this Circuit have found that a non-employer's misleading 2d 491, 497 (S.D.N.Y. 2008). conduct, such as a staff member at the EEOC, is insufficient to warrant equitable tolling”), aff'd 698 F. App'x 627 (2d Cir. B. Plaintiffs Fails to Plausibly Allege a Title VII Claim 2017); Carasco v. New York City Off-Track Betting Corp., 858 Even if Plaintiffs had appropriately filed before the EEOC, F. Supp. 28, 32 (S.D.N.Y. 1994) (rejecting tolling argument Plaintiffs’ Complaint fails to adequately plead a religious based on plaintiff's contention that on an unspecified date she discrimination claim under Title VII, Title VII prohibits telephoned EEOC and was misinformed about time period to an employer from discriminating “against any individual ... file Charge), aff'd, 50 F.3d 3 (2d Cir. 1995). because of such individual's ... religion [or] sex.” 42 U.S.C. § 2000e-2(a)(1). For a Title VII discrimination claim to survive Defendant argues that Plaintiffs’ vague and conclusory a motion to dismiss, a plaintiff must plausibly allege “(1) allegations are insufficient to invoke the equitable tolling she is a member of a protected class; (2) she is qualified doctrine. Hr'g Tr. 24:8-12. The Court agrees. None of the 24 for her position; (3) she suffered an adverse employment declarations contain sufficient factual matter demonstrating action; and (4) the circumstances give rise to an inference neither “definite misrepresentations of fact” made by the of discrimination.” Vega v. Hempstead Union Free Sch. EEOC or its agents nor “reasonable reliance” in delaying Dist., 801 F.3d 72, 83 (2d Cir. 2015) (citation omitted); see the filing of their charges. Syrkin v. State Univ. of N.Y., No. also Sumar v. Brooklyn Hosp. Ctr., No. 22-CV-7390 (RPK) © 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 ADAMOWICZ, ET. AL. Plaintiffs, v. NORTHWELL HEALTH INC.,..., Slip Copy (2024) (MMH), 2023 U.S. Dist. LEXIS 222004, at *5 (E.D.N.Y. Dec. purportedly discriminatory intent but only that a refusal 13, 2023). The burden then shifts to the employer to show that was predicated on an undue burden. In fact, the Complaint it could not reasonably accommodate plaintiff without undue itself acknowledges that Northwell Health “did not contest hardship on the conduct of the employer's business. See 42 the validity of [Plaintiffs’] religious beliefs.” See Compl. ¶ U.S.C. § 2000e(j); Ansonia Bd. of Educ. v. Philbrook, 479 51 (“Northwell relied upon Title 10 N.Y. Comp. Codes R. U.S. 60, 63 (1986). & Regs. ¶ 2.61,” which “made it unlawful for Northwell to exempt its employees from being vaccinated against An employer does not violate Title VII, however, if it can Covid-19 on the basis of their religion.”). Further, the 26 show that the prospective accommodation “would cause the individual declarations are devoid of any factual allegations employer to suffer an undue hardship.” Cosme v. Henderson, that any Plaintiff experienced religious discrimination by 287 F.3d 152, 158 (2d Cir. 2002). Undue hardship is “shown Northwell. None show Northwell engaging in degrading when a burden is substantial in the overall context of an conduct based the Plaintiff's religion. Equally, none contain employer's business.” Groff v. DeJoy, 600 U.S. 447, 468, 143 any allegation of invidious comments made by Northwell S. Ct. 2279, 216 L. Ed. 2d 1041 (2023); accord D'Cunha v. about other religious employees. Thus, the failure to allege Northwell Health Sys., No. 23-476-cv, 2023 U.S. App. LEXIS any facts as to even an inference of discrimination dooms 30612, at *6-7 (2d Cir. Nov. 17, 2023). Plaintiffs’ claims. 1. Plaintiffs Fail to Plead Sufficient 2. Undue Hardship Religious Discrimination Even if Plaintiffs had made out a prima facie case of Plaintiffs fail to adequately plead a religious discrimination r