Lavelle-Hayden v. Legacy HealthLavelle-Hayden v. Legacy Health
Brenda K. Baumgart, Madeleine Sophie Shaddy-Farnsworth, and Matthew A. Tellam, Stoel Rives LLP, 760 SW Ninth Ave., Suite 3000, Portland, OR 97205. Attorneys for Defendant Legacy Health.
IMMERGUT, District Judge.
Before this Court is Defendant Legacy Health‘s Motion for Summary Judgment (“MSJ“), ECF 23. Defendant is a regional healthcare provider that has been accused of violating Title VII of the Civil Rights Act and
Based on the pleadings and factual record, this Court GRANTS Defendant‘s Motion for Summary Judgment. Defendant is entitled to judgment as a matter of law on its affirmative defense of undue hardship. Although Plaintiffs raised an aiding and abetting claim against unnamed Does in their Complaint, they have not defended that claim on summary judgment and have adduced no evidence concerning that claim. Accordingly, summary judgment is granted with respect to that claim as well.
Summary judgment may be granted in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). A court may, in its discretion, consider the admissibility of evidence offered at summary judgment even when no objection is made. See Romero v. Nev. Dep‘t of Corr., 673 F. App‘x 641, 644 (9th Cir. 2016). “Authentication is a ‘condition precedent to admissibility,’ and this condition is satisfied by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.‘” Orr, 285 F.3d at 773 (footnotes omitted). “[U]nauthenticated documents cannot be considered in a motion for summary judgment.” Id. (collecting cases). “[D]ocuments authenticated through personal knowledge must be ‘attached to an affidavit that meets the requirements of [Rule] 56[(c)(4)] and the affiant must be a person through whom the exhibits could be admitted into evidence.‘” Id. at 773-74 (footnotes omitted). Similarly, “[b]ecause summary judgment qualifies as a substitute for a trial, and hearsay (absent an exception or exclusion) is inadmissible at trial, a motion for summary judgment may not be supported by hearsay. Courts have likewise held that papers opposing a motion for summary judgment may also not be supported by hearsay.” Cherewick v. State Farm Fire & Cas., 578 F. Supp. 3d 1136, 1157 (S.D. Cal. 2022) (citations and emphasis omitted). Furthermore, “scientific, technical, or other specialized knowledge” must be introduced through an expert witness pursuant to Federal Rule of Evidence 702, and cannot be introduced through lay witnesses. See Erhart v. BofI Holding, Inc., 445 F. Supp. 3d 831, 838-39 (S.D. Cal. 2020). Courts accordingly have held that plaintiffs cannot “introduce [their] expert and/or his report as lay testimony” on summary judgment. See Wynn v. Callan Appraisal Inc., No. 2:09-cv-01587-RCJ, 2012 WL 12925797, at *1 (D. Ariz. Feb. 24, 2012).
BACKGROUND
A. Undisputed Facts
1. The Parties
Defendant Legacy Health is a major regional healthcare provider that operates eight hospitals in the Portland, Oregon, Vancouver, Washington, and mid-Willamette Valley areas, including a full-service children‘s hospital, a 24-hour mental and behavioral health services center, and more than 70 primary care, specialty, and urgent care clinics. Declaration of Melinda Muller, M.D. (“Muller Decl.“), ECF 25 ¶¶ 4-5. Defendant has approximately 14,000 employees and nearly 3,000 “allied” health care providers. Id.
All five Plaintiffs worked for Defendant in roles that required direct, in-person contact with patients and coworkers. Plaintiff Alison Lavelle-Hayden worked as a respiratory therapist for Defendant‘s Good Samaritan
Plaintiff Ashley Rogness worked as a charge nurse, staff nurse, and neonatal resuscitation specialist at Legacy Meridian Park Medical Center‘s Family Birth Center from November 2014 to October 2021.1 Declaration of Audrey Rogness (“Rogness Decl.“), ECF 28 ¶¶ 2-3; Baumgart Decl., ECF 24, Ex. 3 at 2. As part of her duties, Rogness “was in charge of unit staffing, patient assignments[,] and navigating floor nurses during difficult situations and daily assignments.” Baumgart Decl., ECF 24, Ex. 3 at 2. She was also “responsible for the care of antepartum, intrapartum, postpartum, and neonatal patients,” “circulated in the operating room for caesarean deliveries, tubal ligations, and other women‘s specific surgical procedures,” and “triaged obstetric patients.” Id. Further, she was “trained as a neonatal resuscitation specialist.” Id. Rogness had direct, in-patient contact with patients during 2020 and 2021. Baumgart Decl., ECF 24, Ex. 4 at 2.
Plaintiff Theresa Serini worked as a charge nurse, labor and delivery nurse, postpartum nurse, antepartum nurse, and neonatal resuscitation specialist at Legacy Meridian Park Medical Center‘s Family Birth Center from July 2016 to October 2021. Declaration of Theresa Serini (“Serini Decl.“), ECF 29 ¶¶ 3-4. As part of her duties, Serini “communicat[ed] with patients, families, co-workers[,] and physicians.” Id. ¶ 4. She had direct, in-person contact with patients in 2020 and 2021. Baumgart Decl., ECF 24, Ex. 6 at 1.
Plaintiff Kalina Solmonson worked as a medical phone operator and scheduler at Defendant‘s primary care clinic in St. Helens, Oregon, from November 2020 to October 2021. Declaration of Kalin Solmonson, ECF 30 ¶¶ 3-4, 14. Plaintiff Solmonson had direct, in-person contact with patients in 2020 and 2021 and could not have performed her job duties without such contact with patients and coworkers. Baumgart Decl., ECF 24, Ex. 7 at 4.2
Plaintiff Roman Romanyuk worked as a safety security officer for Defendant‘s Mount Hood Medical Center from December 2015 to October 2021. Declaration of Roman Romanyuk, ECF 31 ¶ 3. Romanyuk had direct, in-person contact with patients in 2020 and 2021, and he could not have performed all of his job duties without such contact with both patients and coworkers. Baumgart Decl., ECF 24, Ex. 9 at 2.
2. The Relevant Events
In the late months of 2019, SARS-CoV-2, the virus that causes COVID-19, was
When the COVID-19 pandemic began, Defendant implemented policies based on science and guidance from the Centers for Disease Control and Prevention (“CDC“), the Oregon Health Authority (“OHA“), and the Washington State Health Care Authority (“WSHCA“). Muller Decl., ECF 25 ¶ 5. Defendant also relied on the expertise of its internal clinical leaders. Id. Defendant tracked and monitored patient and employee infections, and instituted safety measures such as requiring the use of personal protective equipment (“PPE“), testing, temperature checks, self-reporting illness or symptoms, social distancing when possible, and hygiene protocols (including hand hygiene, environmental disinfection, and room air changes). Id. ¶ 8. Defendant issued weekly updates to all employees concerning COVID-19-related developments. Id. ¶ 9.
Beginning in the second half of July 2021, the Delta variant became the predominant strain of new COVID-19 cases in the United States, and as a result, the number of anticipated COVID-19 cases “shot dramatically upward.” Id. ¶ 22. Defendant‘s own internal forecasting and a publicly available model developed by Oregon Health and Science University (“OHSU“) epidemiologist Dr. Peter Graven began predicting a forthcoming surge in COVID-19 cases surpassing previous records. Id. Between June and September 2021, COVID-19 cases rose by 1,200%, with hospital admissions up by 600% nationwide and, near the peak of the Delta surge, a daily death toll of 1,500 Americans. Cohen Rep., ECF 24-10 ¶ 29. “By December 15, 2021, [one] out of every 100 persons in the [United States] above the age of 65 had died from COVID-19.” Id. At that time, the United States death toll measured from the beginning of the pandemic exceeded 800,000. Id. The risk of Delta transmission was especially high in hospitals, where healthcare workers and patients were often unable to socially distance. Id. ¶¶ 34-35; see Muller Decl., ECF 25 ¶ 31.
In response to this trend and its own modeling, Defendant implemented several measures, including reinstituting visitor restrictions and temporarily pausing non-emergency surgical procedures to support hospital capacity. Muller Decl., ECF 25 ¶ 24. However, Defendant‘s Senior Leadership Team (“SLT“) determined that these efforts, in addition to the measures that Defendant‘s employees had taken throughout the COVID-19 pandemic, would not be enough, “given the gravity of what [Defendant] and other health systems were facing and the medical science at the time about the importance of vaccination against COVID-19.” Id. The SLT took note that “many healthcare organizations across the county had begun (or were considering) requiring employees to be vaccinated against COVID-19.” Id.; Cohen Rep., ECF 24-10 ¶ 28.
On August 5, 2021, Defendant announced to its employees that it would be enacting its Vaccination Policy, requiring all of Defendant‘s employees to be fully vaccinated against COVID-19, or receive an approved exception, by September 30, 2021 (which was later extended to October 18, 2021). Muller Decl., ECF 25 ¶ 25. All requests for religious or medical exceptions were sent to the Vaccine Exception
All five Plaintiffs submitted religious exception requests pursuant to Defendant‘s Vaccination Policy. Lavelle-Hayden Decl., ECF 27 ¶ 9; Rogness Decl., ECF 28 ¶ 6; Serini Decl., ECF 29 ¶ 9; Solmonson Decl., ECF 30 ¶ 8; Romanyuk Decl., ECF 31 ¶ 5. Defendant determined that each Plaintiff did not qualify for a religious exception and denied every request. Lavelle-Hayden Decl., ECF 27 ¶ 13; Rogness Decl., ECF 28 ¶ 14; Serini Decl., ECF 29 ¶ 13; Solmonson Decl., ECF 30 ¶ 10; Romayuk Decl., ECF 31 ¶ 6. Plaintiffs did not thereafter receive the vaccine, and Defendant terminated their employment in October 2021. Lavelle-Hayden Decl., ECF 27 ¶¶ 17, 19; Rogness Decl., ECF 28 ¶ 16; Serini Decl., ECF 29 ¶ 21; Solmonson Decl., ECF 30 ¶ 14; Romanyuk Decl., ECF 31 ¶ 9.
B. Evidentiary Issues
1. Plaintiffs’ Motion to Strike
In their Response to the Motion for Summary Judgment, Plaintiffs “object to and move to strike (1) Dr. Melinda Muller‘s declaration and supporting exhibits and (2) the expert report of Seth Cohen, M.D., M.S.C.” Resp., ECF 26 at 14. In Plaintiffs’ telling, because Dr. Muller and Dr. Cohen were not disclosed as witnesses under
Plaintiffs’ arguments are unpersuasive, in light of this Court‘s prior discussions with the Parties.
THE COURT: I think what [Defendant‘s counsel is] suggesting is that—vacate the current discovery, so basically stay discovery until defendants file their motion for summary judgment. Then if you need to take discovery to respond to the motion for summary judgment, you can do that and they‘ll try to accommodate you in the time you have to respond. You‘ll file a response, they‘ll reply, I‘ll rule. And then if I rule against defendants, then you can—we‘ll set up another kind of more limited discovery time deadline for what you need for trial. You‘ll have an opportunity at that point to take discovery after I—if I were to deny the motion for summary judgment.
MR. HACKE: If I understand what you‘re telling me, Your Honor, that basically, you know, once they file their motions, basically I work with them to take you know, I mean, we‘re going to have to move quickly given that I have three weeks. But basically, I work with them to take discovery in response to their motion to address those issues, especially, you know, because you know, as you know, one of the things in a Rule 56 is there can be no disputed issues of fact. So basically just—so take discovery during that three-week window, then once you‘ve made your call, we do discovery again, a limited amount of discovery in preparation for trial.
THE COURT: Yes. That sounds reasonable to you? MR. HACKE: That sounds okay to me.
Transcript of Proceedings, ECF 33 at 17:18-18:17 (emphasis added).
As the transcript shows, this Court made clear to Plaintiffs’ counsel, and Plaintiffs’ counsel expressly understood, that he would have the opportunity to seek additional discovery after Defendant filed its Motion for Summary Judgment and that both Defendant and this Court would accommodate such discovery. Despite approving this arrangement, Plaintiffs’ counsel did not take advantage of it. After Defendant filed its Motion for Summary Judgment on April 19, 2024, Plaintiffs’ counsel did not reach out to seek additional discovery or to depose Dr. Muller or Dr. Cohen. See Declaration of Matthew A. Tellam, ECF 38 ¶¶ 3-4. Nor did Plaintiffs’ counsel seek an extension of time with this Court for their Response in order to pursue further discovery.
In sum, Defendant did not violate Rule 26 when it disclosed Dr. Muller and Dr. Cohen for the first time in its Motion for Summary Judgment, and this Court accordingly DENIES Plaintiffs’ Motion to Strike. This Court purposefully vacated any discovery deadlines so that Plaintiffs could seek further discovery for their Response, and Plaintiffs did not avail themselves of this opportunity. Plaintiffs’ counsel‘s assertions of prejudice are unpersuasive for the same reason: any prejudice was the result of his own lack of diligence. This Court will therefore consider Dr. Muller‘s and Dr. Cohen‘s submissions for the purposes of summary judgment.3
2. Inadmissible Hyperlinked Documents
As a preliminary matter, it is also necessary to address various evidentiary issues raised by materials offered in support of Plaintiffs’ Response. “When a party opposing summary judgment fails to comply with the formalities of
Plaintiffs cite an August 2021 article from National Geographic, which they offer to prove that there were “multiple peer-reviewed studies published at or near the time the [OHA] issued its Vaccine Mandate show[ing] that vaccinated people were as capable of contracting and transmitting COVID-19 as unvaccinated individuals
Plaintiffs cite a December 2020 study purportedly conducted by Pfizer and BioNTech which they claim “showed that more people who took COVID-19 vaccines contracted COVID-19 than unvaccinated persons who were given a placebo.” Resp., ECF 26 at 21. Yet the study appears to reach the opposite conclusion: it states that “[a]mong 3410 total cases of suspected but unconfirmed COVID-19 in the overall study population, 1594 occurred in the vaccine group vs. 1816 in the placebo group.”4 FDA Briefing Document: Pfizer-BioNTech COVID-19 Vaccine 42 (Dec. 10, 2020), https://perma.cc/7X6F-8HRW. The study also states that “efficacy in preventing confirmed COVID-19 occurring at least seven days after the second dose of vaccine was 95.0%, with 8 COVID-19 cases in the vaccine group and 162 COVID-19 cases in the placebo group.” Id. at 6. In any event, the statements are hearsay, and Plaintiffs have not invoked any hearsay exceptions. Further, the inferences Plaintiffs wish for this Court to draw must be the subject of expert testimony, and Plaintiffs have not presented anyone who is capable of testifying to these contentions. This Court will not consider this study for purposes of summary judgment.
Similarly, Plaintiffs cite an article from Reason.com from August 2021 for the proposition that, “at the time the OHA issued its Vaccine Mandate, COVID-19 had a survival rate exceeding 99 percent.” Resp., ECF 26 at 21. This article, which appears to be an op-ed discussing an Instagram post, contains hearsay, and Plaintiffs do not invoke any hearsay exceptions. Further, the asserted finding must come through an expert with specialized knowledge.
Plaintiffs cite a report provided by BioNTech to the U.S. Securities and Exchange Commission in March 2022. Resp., ECF 26 at 21. They state that, in this report, BioNTech “admitted it lacked proof of its vaccine‘s safety or efficacy.” Id. The hyperlink Plaintiffs have provided leads to a 700-page report. Nowhere in their briefing do Plaintiffs provide a pin cite or a quotation to assist this Court in confirming that this document stands for what they claim it does. It is not this Court‘s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins., 55 F.3d 247, 251 (7th Cir. 1995)); Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (“The district judge is not required to comb the record to find some reason to deny a motion for summary judgment.“). Because Plaintiffs have not aided this Court in determining whether this 700-page report raises a genuine issue for trial, this Court will not consider it for purposes of summary judgment. See Reply, ECF 37 at 13 n.7 (explaining that Plaintiffs “fail to cite any page within the 700-page document that actually contains the statements alleged“).
Plaintiffs point to an academic analysis released in November 2021 for the proposition that “[m]any studies, in fact, showed that COVID-19 vaccines exhibited negative efficacy, meaning individuals who took them became more susceptible to contracting COVID-19.” Resp., ECF 26 at 21 (emphasis omitted). The hyperlink provided by Plaintiffs leads to an error page. Even if the hyperlink were to take this Court to the analysis, titled Worldwide Bayesian Causal Impact Analysis of Vaccine Administration on Deaths and Cases Associated With COVID-19: A BigData Analysis of 145 Countries, and the study stated explicitly what Plaintiffs assert, the report itself appears to be hearsay and establishing its reliability would require expert testimony, which Plaintiffs do not present. As proffered by Plaintiffs, this material is not admissible at trial. Therefore, this Court will not consider this analysis for purposes of summary judgment.
Finally, Plaintiffs cite an article from USAToday for the proposition that “[c]hildren—the very people SPS serves—were even less likely to become seriously ill with, or die from, COVID-19 at [the time OHA issues its Vaccine Mandate].”5 Resp., ECF 26 at 21. The article contains inadmissible hearsay, Plaintiffs do not invoke any hearsay exceptions, and the inferences Plaintiffs seek for this Court to draw must be presented through expert testimony. Accordingly, this Court will not consider this article for purposes of summary judgment.
DISCUSSION
A. Clarifying the Issues
Plaintiffs make several arguments that are either redundant or inappropriate at this stage. First, Plaintiffs argue that they can make out a prima facie case for failure to accommodate under Title VII. See Resp., ECF 26 at 9-13. For the purposes of this Motion, however, Defendant “is not contesting (1) the sincerity of Plaintiffs’ purported religious beliefs; (2) the religiosity of Plaintiffs’ purported beliefs; and (3) whether those beliefs conflicted with the Vaccination Policy.” MSJ, ECF 23
Second, Plaintiffs contend that it is a disputed issue of material fact “whether [Defendant] acted with discriminatory motives.” Resp., ECF 26 at 18 (capitalization omitted). To the contrary, however, this issue is not material to this Motion: Plaintiffs’ assertion misunderstands both Title VII and
In their Amended Complaint, as Defendant points out, Plaintiffs explicitly pleaded a single Title VII claim for failure to accommodate, not a disparate treatment claim. See Reply, ECF 37 at 5-6; First Amended Complaint, ECF 7 ¶¶ 43-48 (explicitly addressing the prongs of a failure to accommodate claim and stating that Defendant “could and should have provided reasonable accommodations for Plaintiffs’ beliefs,” id. ¶ 48). In doing so, Plaintiffs put Defendant on notice that it needed to adduce evidence concerning the elements of a failure to accommodate theory and the undue hardship defense, not the “entirely different defenses” to a disparate treatment theory. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (“A complaint guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff‘s allegations” and “theor[ies] of liability.“).
At this late stage, Plaintiffs cannot now attempt to bring into play Defendant‘s alleged discriminatory motive and thus “maintain a new theory of liability to
This Court now proceeds to the key issue presented by Defendant‘s Motion: Whether Defendant can successfully invoke the undue hardship defense under Title VII.
B. Undue Hardship
This Court answers that question yes. Because Defendant concedes at this stage that Plaintiffs made a prima facie failure to accommodate claim under Title VII, the burden shifts to Defendant to demonstrate that it was unable to reasonably accommodate Plaintiffs’ needs without undue hardship. See Bolden-Hardge v. Off. of the Cal. State Controller, 63 F.4th 1215, 1224 (9th Cir. 2023). The Supreme Court recently clarified the showing a defendant must make to establish undue hardship as an affirmative defense. “[I]n common parlance, a ‘hardship’ is, at a minimum, ‘something hard to bear.‘” Groff v. DeJoy, 600 U.S. 447, 468-69 (2023). “Undue hardship’ is shown when a burden is substantial in the overall context of an employer‘s business.” Id. at 468. As described below, undue hardship is properly analyzed cumulatively and by considering both economic and non-economic costs, viewed at the time Defendant decided to deny Plaintiffs’ requested religious exemptions and then terminate their employment for refusing to obtain the COVID-19 vaccine.8
1. Analysis of Undue Hardship
The following framework is drawn largely from this Court‘s prior opinions on summary judgment in MacDonald v. Oregon Health & Science University, No. 3:22-cv-01942-IM, 2024 WL 3316199, at *6-7 (D. Or. July 5, 2024) and Snow v. Women‘s Healthcare Associates, LLC, No. 3:23-cv-01393-IM, 2024 WL 3640111, at *5-6 (D. Or. Aug. 2, 2024).
a. Economic and Non-Economic Costs
Before Groff, federal courts regularly considered both economic and non-economic costs when conducting the undue hardship analysis. See E.E.O.C. v. Townley Eng‘g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988) (acknowledging that, for an undue hardship analysis, “spiritual costs can exist“); Webb v. City of Philadelphia, 562 F.3d 256, 260 (3d Cir. 2009) (“Both economic and non-economic costs can pose an undue hardship upon employers; the latter category includes, for example, violations of the seniority provision of a collective bargaining agreement and the threat of possible criminal sanctions.“); Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004) (“Th[e undue hardship] calculus applies both to economic costs, such as lost business or having to hire additional employees to accommodate a Sabbath observer, and to non-economic costs, such as compromising the integrity of a seniority system.“); E.E.O.C. v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010) (“A religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship for an employer-prison.“).
Indeed, the Third Circuit‘s decision in Groff, which the Supreme Court later vacated, stated that “both economic and non-economic costs suffered by the employer can constitute an undue hardship.” Groff v. DeJoy, 35 F.4th 162, 174 (3d Cir. 2022), vacated and remanded, 600 U.S. 447 (2023). In clarifying the requisite showing for the undue hardship standard, the Supreme Court in Groff did not entirely displace the manner in which the Third Circuit considered costs. Rather, the Groff Court reiterated that courts “must apply the test in a manner that takes into account all relevant factors in the case at hand” and always return to the question of the “substantial increased costs in relation to the conduct of [an employer‘s] particular business.” 600 U.S. at 470 (emphasis added). The Groff Court even noted that “a good deal of the [Equal Employment Opportunity Commission]‘s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today.” Id. at 471. That guidance directs employers to consider “not only direct monetary costs but also the burden on the conduct of the employer‘s business.” See MSJ, ECF 23 at 25 (citation omitted).
Following Groff, district courts have continued to consider both economic and non-economic costs when conducting the undue hardship analysis. See, e.g., Bordeaux v. Lions Gate Ent., Inc., Case No. 2:22-cv-04244-SVW-PLA, 2023 WL 8108655, at *13 (C.D. Cal. Nov. 21, 2023) (considering the safety risk an unvaccinated actor posed to her coworkers for the undue hardship analysis); Kluge v. Brownsburg Cmty. Sch. Corp., No. 1:19-CV-02462-JMS-KMB, 2024 WL 1885848, at *17-20 (S.D. Ind. Apr. 30, 2024) (considering the cost of a teacher‘s policy on a public school‘s “mission to provide adequate public education that is equally open to all“).
Consistent with the pre- and post-Groff authority, this Court holds that it is appropriate to consider not only calculable economic costs but also non-economic costs, like the cost to an employer‘s mission and potential safety risks, in analyzing undue hardship. In their opposition to Defendant‘s Motion, Plaintiffs seem to assume that only economic costs count under Groff, but they cite no authority explaining why this is so or how it is that Groff
b. Information Available at the Time
Along with considering both economic and non-economic costs when assessing undue hardship, this Court further holds that it is appropriate to confine the analysis to the information available to the employer when it made its undue hardship decision. This approach comports with how courts analyze whether a plaintiff has alleged a prima facie case against an employer—by assessing the information the plaintiff provided to the employer and, thus, the information of which the employer had notice. See Craven v. Shriners Hosps. for Child., No. 3:22-cv-01619-IM, 2024 WL 21557, at *4 n.3 (D. Or. Jan. 2, 2024). “It is axiomatic that an employer can make decisions based only on the information known to it at the time of the decision.” Kluge v. Brownsburg Cmty. Sch. Corp., 64 F.4th 861, 888 (7th Cir. 2023), vacated on denial of reh‘g, No. 21-2475, 2023 WL 4842324 (7th Cir. July 28, 2023). Although Kluge was vacated and remanded following the Supreme Court‘s ruling in Groff, this Court considers this aspect of the Seventh Circuit‘s decision to remain applicable and persuasive post-Groff.
This approach also comports with common sense. To judge an employer‘s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Courts would be tasked with judging an employer‘s decision with the benefit of hindsight, irrespective of factors like the consensus of reputable organizations, the evolving nature of a situation, and the type and quality of information available at the time.
c. Cumulative or Aggregate Effects
This Court further holds that, in some circumstances, it is appropriate for a court to consider the aggregate or cumulative effects of an accommodation when multiple, similarly situated employees request the same accommodation. This approach comports with Supreme Court precedent and Equal Employment Opportunity Commission (“EEOC“) guidance.
As Groff took pains to explain, undue hardship “takes into account 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 an employer.” 600 U.S. at 470-71 (citation and internal quotation marks omitted). These factors naturally include the “aggregate effects when multiple employees are granted the same accommodation.” Together Emps. v. Mass Gen. Brigham Inc., 573 F. Supp. 3d 412, 437 (D. Mass. 2021), aff‘d, 32 F.4th 82 (1st Cir. 2022); see, e.g., Petersen v. Snohomish Reg‘l Fire & Rescue, C22-1674 TSZ, 2024 WL 278973, at *7 (W.D. Wash. Jan. 25, 2024); O‘Hailpin v. Hawaiian Airlines, Inc., 583 F. Supp. 3d 1294, 1309 (D. Haw. 2022), appeal dismissed, No. 22-15558, 2022 WL 19767107 (9th Cir. Oct. 13, 2022). Thus, in Trans World Airlines, Inc v. Hardison, the Supreme Court expressly chastised the dissent for “fail[ing] to take account of the likelihood that a company as large as [Trans World Airlines] may have many employees whose religious observances, like [the plaintiff‘s], prohibit them from working on Saturdays or Sundays.” 432 U.S. 63, 84 n.15 (1977). Consistent with this precedent, the EEOC has issued guidance for COVID-19 reasonable accommodations instructing that “[a] relevant consideration is the number of employees who are seeking a similar accommodation, i.e. the cumulative cost or burden on the employer.”10 U.S. Equal Emp. Opportunity Comm‘n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws § L.3 (Mar. 1, 2022 update), https://perma.cc/J23B-YD4G.
Applying this principle, this Court finds that the following rule should govern in COVID-19 vaccine mandate cases: where, as here, multiple plaintiffs all had direct, in-person contact with patients and coworkers and requested the same accommodation, it is appropriate to consider the aggregate effect of the requested accommodation as part of Groff‘s totality-of-the-circumstances test. To be clear, this aggregation principle does not, and should not be construed to, erase the context-specific nature of undue hardship. This Court thus does not opine on how this principle would apply in other employment contexts involving, among other things, different kinds of accommodations and work duties.
* * *
Employing the framework elaborated above, this Court now considers the admissible evidence presented by the Parties.
2. Defendant Is Entitled to Summary Judgment
a. Defendant‘s Evidence
Defendant attaches one Declaration and one expert report to its Motion for Summary Judgment. Muller Decl., ECF 25; Cohen Rep., ECF 24-10. Because Defendant bears the ultimate burden on its affirmative defense, it must demonstrate that “the record is so one-sided as to rule out the prospect of the nonmovant prevailing.” Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 2727.1 (4th ed., updated June 2024). Accordingly, the following discussion walks through the evidence produced by Defendant.
i. Declaration of Dr. Muller
Dr. Muller is a trained physician who currently serves as the Chief Medical Officer for Defendant. Muller Decl., ECF 25 ¶¶ 1-2. In 2021, she was Defendant‘s Associate Chief Medical Officer, and in 2020, she was Defendant‘s Interim Chief Medical Officer. Id. ¶ 1. In the summer of 2021, she was a member of Defendant‘s SLT, which decided to implement Defendant‘s Vaccination Policy in August 2021. Id. ¶ 3. Defendant runs eight hospitals and more than seventy primary care, specialty, and urgent care clinics. Id. ¶ 4. In addition,
At the onset of the COVID-19 pandemic, Defendant “strived to rely on” scientific consensus, agency guidance from the CDC, OHA, and WSHCA, and the expertise of its own internal clinical leaders in implementing COVID-19-related policies and procedures. Id. ¶ 5. The SLT‘s “overarching goals” were to ensure that Defendant, “as a major regional healthcare provider,” provided the “safest possible environment for patients and employees, while maintaining public trust in [Defendant‘s] capabilities during a major global event.” Id.
Defendant faced several challenges in attempting to stem COVID-19. Patients delayed or declined to seek care, meaning that when patients “finally did obtain treatment at [Defendant‘s] facilities,” their health conditions were “more dire.” Id. ¶ 6. Defendant‘s facilities were continuously at capacity. Id. Defendant suspended elective surgeries and non-emergent and urgent care so that patient care staff could be redeployed to address COVID-19 patients. Id. Further, because employee use of sick time was “significantly higher than normal” during the pandemic and “hundreds of employees [were] often out sick or on work restrictions at any given time,” Defendant had additional issues providing patient care. Id. ¶ 7.
Defendant sought to limit the spread of COVID-19 within its facilities. Defendant implemented an “Infection Control Plan” that was shared with all employees and tracked and monitored patient and employee infections. Id. ¶ 8. Defendant communicated with its employees through daily “huddles,” weekly written updates, and various newsletters. Id. ¶ 9. As noted, Defendant required the use of PPE, testing, temperature checks, self-reporting, social distancing when possible, various hygiene protocols, environmental disinfection, and room air changes. Id. Each of these measures had its limitations. Id. For instance, PPE must be worn at all times, and properly so, in order to be effective. Id. Break rooms were a concern for Defendant because employees would eat without masks or congregate without masking. Id. And Defendant could not require that employees mask while not at work. Id.
Defendant received its first shipment of COVID-19 vaccines in mid-December 2020. Id. ¶ 13. Defendant began offering vaccination to all employees on January 14, 2021. Id. ¶ 15. By March 4, 2021, approximately 70% of employees were vaccinated. Id. ¶ 16. In an effort to have more employees vaccinated, Defendant streamlined the process for scheduling vaccinations, secured additional space at the Oregon Convention Center to administer COVID-19 vaccines, provided incentivized sick pay for employees who were fully vaccinated, worked with staff leaders to encourage voluntary vaccination, and offered raffles for fully vaccinated employees. Id. ¶ 17. As a result of these efforts, on July 1, 2021, Defendant‘s employee vaccination rate was approximately 84%. Id. ¶ 18. This meant that approximately 2,240 employees remained unvaccinated on that date. Id. ¶ 19. This higher rate of vaccination generally coincided with a decrease in COVID-19 case counts at Defendant‘s facilities. Id. ¶ 20. For instance, on February 25, 2021, the number of COVID-19 positive hospitalized patients had declined 83% from the previous peak on December 1, 2020. Id. That said, hospitalizations and cases increased in spring 2021, before the Delta variant of COVID-19 arrived in summer 2021. Id.
The SLT monitored Defendant‘s internal metrics on COVID-19 case counts and patient capacity, as well as Oregon‘s statewide publicly available COVID-19 forecasting models developed by OHSU epidemiologist Dr. Peter Graven. Id. ¶ 21. In the
Defendant implemented several measures in anticipation of this surge, such as visitor restrictions and a pause on non-emergency surgical procedures. Id. ¶ 24. “But there was a strong consensus among the SLT that these efforts, along with the safety measures that [Defendant‘s] employees had taken throughout the pandemic, would not be enough given the gravity of what [Defendant] and other health systems were facing and the medical science at the time about the importance of vaccination against COVID-19.” Id. SLT was “mindful that many healthcare organizations across the country had begun (or were considering) requiring employees to be vaccinated against COVID-19.” Id. The SLT accordingly implemented Defendant‘s Vaccination Policy in August 2021. Id. ¶ 25. The SLT “determined that the Vaccination Policy was necessary” for several reasons. Id. ¶ 28. To begin with, the scientific consensus was that the available vaccines were safe and highly effective at preventing infection and reducing cases of severe illness and death. Id. ¶ 28(a)(i). The scientific consensus was also that vaccinated individuals tended to carry a lower viral load and were thus less likely to spread COVID-19 than unvaccinated individuals. Id. ¶ 28(a)(ii). Further, the scientific consensus was that while other safety measures, such as PPE, testing, and hygiene protocols, were “an important part of the control process,” vaccination nonetheless provided all of the benefits of these measures without the limitations. Id. ¶ 28(a)(iii). In addition, Defendant determined that COVID-19 represented a “grave threat” to its patients, many of whom were susceptible to severe illness and death due to their age and/or preexisting medical conditions. Id. ¶ 28(a)(iv). The Delta variant was spreading quickly and threatened to further burden Defendant‘s system. Id. ¶ 28(a)(v).
Defendant had “a responsibility to provide the highest possible level of patient care and to protect patients, employees, and visitors from unreasonable safety risks.” Id. ¶ 28(a)(vi). To fulfill this responsibility, Defendant needed to maintain adequate staffing levels, and it “would be less likely to do so if employees were out ill with COVID-19 (which, among other consequences, might result in employees working longer hours or taking on additional shifts).” Id. ¶ 28(a)(vii). Ultimately, “[a]s a major regional healthcare system, [Defendant] was committed to ensuring that members of the public felt safe accessing medical care at its facilities and believed that ensuring all employees were fully vaccinated would help foster that trust.” Id. ¶ 28(a)(viii).
After announcing its Vaccination Policy, Defendant continued to evaluate its implementation and specifically, “whether employees with approved exceptions could be accommodated in on-site roles.” Id. ¶ 30. “Ultimately, the SLT determined that, consistent with available science, having any unvaccinated employees continue in-person work presented an unreasonable health and safety risk, and it made only a handful of exceptions for individuals who could do their jobs privately and without the possibility of encountering other employees or patients.”11 Id. In reaching this
By October 2021, 96% of Defendant‘s employees were fully vaccinated. Id. ¶ 34. ICU admissions at Defendant‘s facilities peaked in September 2021, and nearly 200 COVID-19-
positive patients were receiving care at Defendant‘s facilities at various points that month, “a dramatic increase from previous highs in December 2020.” Id.
ii. Expert Report of Dr. Seth Cohen
Defendant has retained, and provides an expert report from, Dr. Seth Cohen, who has worked for “nearly 15 years in epidemiology, internal medicine, and infectious disease” and whose “experience and expertise are focused on the science, spread, mitigation, and treatment of infectious diseases, including ... COVID-19.” Cohen Rep., ECF 24-10 ¶¶ 1, 12, 14.
Dr. Cohen states that, “[i]n [his] opinion informed by scientific consensus and experience caring for patients with COVID-19, COVID-19 presented a threat to patients and healthcare workers in an[d] around summer and fall 2021. Because of this threat, mandatory COVID-19 vaccination policies were absolutely critical to protecting employees and patients at healthcare facilities.” Id. ¶ 38. Dr. Cohen adds that “because vaccination was fundamentally different from other protective measures in how it protected individuals from COVID-19, and because no single measure was 100% effective on its own in protecting individuals from COVID-19, it was [his] medical opinion in and around summer and fall 2021 that healthcare organizations should require both vaccination and non-vaccination measures to most effectively mitigate the risks presented by COVID-19.” Id.
With respect to alternative mitigation measures, Dr. Cohen states that although they “can be effective,” they were and are not a substitute for vaccination. Id. ¶¶ 35-37. Testing was not a substitute because it was not “perfectly accurate” and could therefore “contribute[] to significant outbreaks among patients, colleagues, and families” through false negatives or could “be quite disruptive to workplace staffing” through false positives. Id. ¶ 35. Moreover, “[t]urn around times for diagnostic testing are quite variable and may lead to significant delays in obtaining actionable results.”
Dr. Muller states that she has reviewed Dr. Cohen‘s report. Muller Decl., ECF 25 ¶ 35. Dr. Muller attests that Dr. Cohen‘s “opinion is consistent with [Defendant‘s] information at the time it implemented its Vaccination Policy.” Id. Further, she attests that “the medical science Dr. Cohen relied upon in authoring his report represents many of the same materials [Defendant] w[as] reviewing throughout the pandemic” and that “Dr. Cohen‘s conclusions are the same conclusions that [Defendant] reached in deciding to implement the Vaccination Policy.” Id.
b. Defendant‘s Evidence Establishes that Accommodating Plaintiffs Posed an Undue Hardship
Defendant has established that accommodating Plaintiffs—by allowing them to continue working at Defendant‘s facilities while unvaccinated—would have undermined Defendant‘s legitimate mission, creating a substantial increased cost and, hence, an undue hardship. In opposing summary judgment, Plaintiffs do not distinguish between themselves and instead agree with Defendant that this Motion concerns persons “whose jobs required in-person interaction with [other] persons at various hospitals.” Resp., ECF 26 at 7. As Defendant points out, it is “major regional healthcare system” with “a responsibility to provide the highest possible level of patient care and to protect patients, employees, and visitors from unreasonable safety risks,” Reply, ECF 37 at 7. Defendant “needed to maintain adequate staffing levels to provide high-quality patient care” and “would be less likely to do so if employees were out ill with COVID-19.” Id. Defendant “was responsible for ensuring that members of the public felt safe accessing medical care at its facilities.” Id. And Defendant‘s “decision-making process during the COVID-19 pandemic” was rooted in this “mission and those responsibilities.” Id. at 8. These factors are critical to the undue hardship analysis, for “[w]here, as here, ‘the employer‘s business involves the protection of lives,’ [courts] are reluctant to ‘restructure its employment practices.‘” Jean-Pierre v. Naples Cmty. Hosp., Inc., 817 F. App‘x 822, 828 (11th Cir. 2020) (per curiam) (brackets omitted) (quoting Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995)); see United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir. 1976). Similarly, when a proposed accommodation compromises safety in the workplace, this, too, can be an undue hardship. See, e.g., Kalsi v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745, 758 (E.D.N.Y. 1998), aff‘d, 189 F.3d 461 (2d Cir. 1999).
Before the COVID-19 vaccine became available, Defendant implemented several measures aimed at protecting against COVID-19. MSJ, ECF 23 at 8-10. Defendant required the use of PPE, testing, temperature checks, self-reporting, social distancing, hygiene protocols, environmental disinfection, and room air changes. Id. at 8-9.
Thus, when the vaccine became available beginning in December 2020, Defendant determined that “their arrival was an important step in reducing the impact of COVID-19 at healthcare facilities” such as Defendant‘s. Id. at 10. “[T]he medical consensus [was] that vaccination against COVID-19 was the best tool available to reduce the likelihood of infection and transmissibility, along with severe illness and death.” Id. at 13. The vaccines, Defendant found, were “unparalleled in their ability to protect both healthcare workers and their patients.” Id. at 10. In part, this was because “[w]hile the safety measures [Defendant] took before vaccines arrived ... [were] highly effective, all [were] subject to practical limitations in a work environment.” Id. at 10-11. And due to these limitations, Defendant had a “major concern” about, among other things, employees eating or congregating without masks in breakrooms, as well as general spread within the community. Id. at 11. Vaccination could help remedy these issues in ways no other measure could.
Even with some of Defendant‘s employee population vaccinated, the rise of the Delta variant in summer 2021 threatened further waves of infection. Both outside and internal modeling showed that in July and August of 2021, Defendant‘s COVID-19 case count threatened to dwarf past hospitalization numbers up to that point. Id. at 14. And while Defendant undertook measures in response to this modeling—such as reinstituting visitor restrictions and pausing non-emergency surgical procedures—“there was a strong consensus that those efforts, along with the safety measures that [Defendant‘s] employees had taken throughout the pandemic, would not be enough.” Id. at 15. As the situation evolved and Defendant instituted its Vaccination Policy, Defendant found that transmissions were still occurring—increasing the risk of patient and employee infection and employee absences—even with all of its measures. Id. at 18. Indeed, ICU admissions peaked at Defendant‘s facilities in September 2021 and nearly 200 COVID-19-positive patients were receiving care, “a dramatic increase from previous highs in December 2020.” Id. at 19. This was especially concerning in light of the nature of Defendant‘s patient population, “many of whom were particularly susceptible to severe illness and death due to their age and/or pre-existing medical conditions, or at a heightened risk of infection.” Id. at 29. And it was also concerning because Defendant‘s modeling showed that the Delta variant would “imminently ... place additional stress on [Defendant‘s] already overburdened system with a surge of COVID-19 cases and hospitalizations.” Id.
Based on the information and evidence available to it at the time, Defendant reasonably concluded that allowing unvaccinated employees to have direct, in-person contact with patients and employees posed a substantial increased cost. Guidelines from the CDC and WHA, which Defendant reasonably concluded bore indicia of validity and reliability, combined with its own internal data analysis, led Defendant to conclude that unvaccinated employees working in-person would put other staff members and a vulnerable patient population at risk. And allowing staff and patients to be put at risk compromised Defendant‘s
Furthermore, the cumulative cost would have been substantial. Plaintiffs argue that Defendant “has provided nothing from which Court can determine the negative health ramifications of the 4% of employees remaining unvaccinated and taking other precautionary measures.” Resp., ECF 26 at 24. But this arrangement would have left 560 employees unvaccinated, relying on safety measures with proven flaws that only vaccination could remedy. The unrefuted evidence shows that a single unvaccinated employee in a breakroom during a lunch break could have compromised both employee and patient safety. The unrefuted evidence shows, too, that a single unvaccinated employee interacting with a vulnerable patient could have compromised both employee and patient safety. One need only multiply these interactions by 560 to see the error in Plaintiffs’ assertion. Petersen, 2024 WL 278973, at *7.
Moreover, to the extent that Plaintiffs are arguing that Defendant should have taken a “wait and see” approach to the consequences of permitting unvaccinated employees to continue to have direct, in-person contact with patients and coworkers during the largest surge of COVID-19 cases up to that point,
c. Plaintiffs Fail to Rebut Defendant‘s Evidence
As discussed above, much of Plaintiffs’ evidence is inadmissible and cannot be considered for resolving this Motion. The remainder of Plaintiffs’ evidence fails to raise a genuine dispute of material fact as to Defendant‘s undue hardship determination. See Isaac v. Exec. Off. of Health & Hum. Servs., No. 22-11745-RGS, 2023 WL 8544987, at *2 (D. Mass. Dec. 11, 2023) (concluding on summary judgment that accommodating the plaintiff‘s COVID-19 vaccine exemption request would pose an undue hardship to plaintiff‘s employer where plaintiff “challenge[d] only the underlying assumption that the vaccine protects against infection” but presented no evidence to support that challenge), appeal dismissed, No. 23-2065, 2024 WL 3159284 (1st Cir. Feb. 22, 2024). This Court notes that Plaintiffs presented evidence only with respect to the vaccine‘s effectiveness and did not attempt in any way to distinguish between the various Plaintiffs. Plaintiffs cite a media statement from July 2021 made by then-CDC Director Rochelle P. Walensky. Resp., ECF 26 at 20-21. Setting to the side issues of authentication, and assuming that Plaintiffs offer this media statement for a non-hearsay purpose, this statement still does not create a genuine dispute of fact. The statement advised that some data “demonstrat[e] that Delta infection resulted in similarly high SARS-CoV-2 viral loads in vaccinated and unvaccinated people. High viral loads suggest an increased risk of transmission and raised concern that, unlike with other variants, vaccinated people infected with Delta can transmit the virus.”13 As Defendant explains, this statement concerns “the viral loads of persons who have already suffered an infection of COVID-19” and not “whether vaccines help prevent” infection in the first place. Reply, ECF 37 at 12. Furthermore, Defendant was not focused solely on whether vaccination reduced the risk of transmission—it was also concerned with potential reduction in severe or critical COVID-19 and reduction in reinfection. See MSJ, ECF 23 at 16-17. Even construing the evidence in Plaintiffs’ favor and resolving reasonable inferences in her favor, this statement does not create a triable issue here. Defendant‘s evidence still establishes that, based on the information available, it reasonably concluded that the COVID-19 vaccine was a necessary measure for patient-facing staff members like Plaintiffs.
Plaintiffs also cite a report provided by BioNTech to the U.S. Securities and Exchange Commission in March 2022. Resp., ECF 26 at 21. They state that in this report BioNTech “admitted it lacked proof of its vaccine‘s safety or efficacy.” Id. As discussed above, Plaintiffs failed to provide a pin cite or a quotation to assist this Court in confirming that this 700-page report stands for what she claims it does, and it is not this Court‘s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Regardless, assuming this report supports Plaintiffs’ proposition, it still does not create a genuine issue of fact. Statements made by a vaccine manufacturer in March 2022 do not create a triable issue of fact about what Defendant understood in the fall and summer of 2021.
Defendant moves for summary judgment on Plaintiffs’ aiding and abetting claim against unnamed Does under
CONCLUSION
While Plaintiffs wish to dispute the efficacy of COVID-19 vaccines, they have presented no admissible evidence on that score, and ultimately, cannot refute the Groff-mandated, common-sense proposition that medical-care employers are entitled to rely on medical consensus in making critical decisions. That medical consensus found that vaccines could protect against COVID-19 in ways no other measure alone could. This unrefuted fact—in tandem with Defendant‘s mission, and with the abundant, unrefuted evidence of COVID-19‘s effect on Defendant‘s patients, employees, and ability to fulfill that mission—decides this case.
Defendant‘s Motion for Summary Judgment, ECF 23, is GRANTED.
IT IS SO ORDERED.
DATED this 14th day of August, 2024.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge