HERTOG v. 1002 SISTER BARBARA WAY PROPERTY, LLC
4:24-cv-00093
S.D. Ind.Apr 23, 2025Background
- Plaintiff Lois Hertog was a Physical Therapist Assistant employed by Defendants from February to April 2022.
- Defendants implemented a COVID-19 vaccine mandate, offering religious exemptions.
- Hertog, who is over 60 and identifies as a person of faith, received an exemption but subsequently suffered reduced work hours and additional COVID test requirements.
- Hertog filed charges with the EEOC, received a right-to-sue letter, and initiated suit making Title VII and Indiana state law claims for discrimination, retaliation, and wrongful termination.
- Defendants removed the case to federal court and moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title VII Religious Discrimination | Hertog alleged she was discriminated against for her religious beliefs and vaccine refusal. | Hertog failed to specify any actual religious belief or observance connected to her vaccine refusal. | Dismissed with prejudice: Complaint failed to plausibly allege religion-based discrimination under Title VII. |
| Title VII Retaliation | Claimed retaliation for exercising her religious beliefs by requesting an exemption. | Requesting a religious exemption, by itself, is not protected activity under Title VII. | Dismissed with prejudice: Merely requesting accommodation is not a protected activity under Title VII. |
| Dismissal With Prejudice | No argument presented against dismissal with prejudice. | Sought dismissal with prejudice due to multiple failed amendments. | Granted: Multiple unsuccessful amendments justified dismissal with prejudice. |
| Supplemental Jurisdiction over State Law Claims | Sought federal court resolution of state claims. | State law claims should be dismissed or found preempted. | Denied: Federal court declined supplemental jurisdiction; state law claims remanded to state court. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must raise claim above speculative level)
- Ashcroft v. Iqbal, 556 U.S. 662 (complaint must be facially plausible)
- Porter v. City of Chicago, 700 F.3d 944 (Title VII elements for discrimination)
- Kaminski v. Elite Staffing, Inc., 23 F.4th 774 (plausible allegations required for discrimination claims)
- Lewis v. Wilkie, 909 F.3d 858 (Title VII retaliation elements)
- Alexander v. Gardner-Denver Co., 415 U.S. 36 (Title VII does not preempt state discrimination claims)