Judge Gail Killefer, Case Number: 23STCV02429, Date: 2025-05-02 Tentative Ruling

This action arises out of the employment of Douglas Smith (“Plaintiff”) with Burbank Unified School District (“Defendant” or “BUSD”). Plaintiff was employed by the Defendant and worked as a teacher since August 1, 1992, and was terminated on May 27, 2022. According to the original Complaint, Plaintiff alleges he requested a religious exemption as a reasonable accommodation from the Defendant’s September 12, 2021 COVID-19 vaccination mandate for all employees.

After Plaintiff submitted his request for religious accommodation, on October 11, 2021, Defendant BUSD acknowledged Plaintiff was entitled to religious accommodation and placed Plaintiff on an unpaid leave of absence. Plaintiff alleges that on May 27, 2022, Defendant BUSD terminated Plaintiff’s employment.

On April 25, 2024, Plaintiff filed the operative Fourth Amended Complaint (4AC) alleging three causes of action: (1) unlawful discrimination based upon religion and religious creed in violation of Gov. Code § 12940; (2) failure to prevent discrimination in violation of Gov. Code § 12940; and (3) retaliation in violation of Gov. Code § 12940.

Defendant BUSD now moves for summary judgment. Plaintiff opposes the Motion. The matter is now before the court.

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Exhibit A: A true and correct copy of Governor Newsom’s Executive Order N-26-20, which was signed on March 13, 2020. (Also attached as DCOE Ex. 4.)

Exhibit B: A true and correct copy of Order by California Director and State Public Health Officer Tomas J. Aragon from August 11, 2021. (Also attached as DCOE Ex. 5.)

Exhibit A: CDPH’s Requirement for Universal Masking Indoors at K-12 Schools issued August 23, 3032.

Exhibit B: Guidelines from the U.S. Equal Employment Opportunity Commission (“EEOC”) titled “What You Should Know about Covid-19 and the ADA, the Rehabilitation Act, and other EEO Laws.

Discussion

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP, § 437c(f).)¿¿¿¿¿¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (CCP, § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿¿

“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿

The 4AC alleges that beginning in 1992, Plaintiff began his employment with Defendant BUSD where he worked as a chemistry teacher. (4AC, ¶ 9.) Plaintiff is an active member of The Gathering Christ Church, and his sincerely held religious beliefs dictate that he refrain from ingesting any potentially toxic substances. (Id. ¶ 10.) Accordingly, Plaintiff declined to receive the COVID-19 vaccinations because the vaccinations contain substances that violate the dietary laws of his religion. (Ibid.)

In September 2021, Plaintiff requested a religious exemption from the COVID-19 vaccine requirement and included a letter from the Deacon of his church explaining why ingesting the vaccine violated Plaintiff’s religious beliefs. (4AC, ¶ 12.) In October 2021, Defendant BUSD acknowledged that Plaintiff was entitled to an exemption from the vaccine requirement and an accommodation in the form of indefinite unpaid leave. (Id. ¶ 13.) Plaintiff informed BUSD that he believed the religious accommodation of unpaid leave was discriminatory because other accommodations were available, such as wearing a face mask during live teaching sessions and routine COVID-29 testing. (Id. ¶ 15.)

On February 3, 2023 Plaintiff filed this action for religious discrimination and retaliation.

B. 1st Cause of Action – Unlawful Discrimination based on Religion and Religious Creed

The California Fair Employment and Housing Act (FEHA) makes it unlawful “[f]or an employer, because of. . . religious creed . . .of any person, . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Lab. Code, § 12940(a).) For purposes of Section 12940, “‘Religious creed’ includes any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” (Cal. Code Regs., tit. 2, § 11060.)

FEHA also makes it unlawful “[f]or an employer . . . to discharge a person from employment . . . or to discriminate against a person in . . . in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, . . . but is unable to reasonably accommodate the religious belief or observance without undue hardship as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer[.]” (Lab. Code, § 12940(l)(1).)

In E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (2015) 575 U.S. 768, the United States Supreme Court treated a failure to accommodate a religious practice as a disparate treatment claim under Title VII (Id. at p. 774.) “[A]s in most disparate treatment cases where the employer seeks summary judgment, the only elements in serious contention are the existence of discriminatory animus and a causal link between it and the challenged action.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)

The Parties do not dispute that in the Spring of 2020, the prevalence of COVID-19 and the Governor’s March 13, 2020, Executive Order forced Defendant BUSD to cease conducting its customary services and close all its facilities. (Undisputed Material Fact (“UMF”) Nos. 5, 6.) By August 23, 2021, BUSD had begun providing free testing for all students and employees at its own locations. (UMF No. 7.)

BUSD adopted a distance-learning approach through the remainder of 2020 and into early 2021. (UMF No. 6.) During this time, “Plaintiff would provide students with assignments that they would turn in electronically and would upload instruction videos that students watched,” but none of the instruction was in real time. (UMF No. 8.) Live teaching via Zoom or Google Classroom did not occur in Spring 2020 but began in Fall 2020, continuing through the 2020-2021 school year. (Plaintiff’s Compendium of Evidence (“PCOE”) Ex. 2 [Smith Depo. at pp. 31:20-25, 33:15-23].)

On August 11, 2021, the State of California Department of Public Health (“CDPH”) mandated that the district collect and maintain a copy of the vaccination status of all employees. (UMF No. 12.) The August 11, 2021, CDPH Order also mandated that staff who failed to report their vaccination be deemed unvaccinated and undergo weekly PCR or antigen testing. (Defendant’s Compendium of Evidence (“DCOE”) Ex. 5 [August 11, 2021 CDPH Order]; UMF Nos. 12-13.) The August 11, 2021 CDPH Order further stated:

Unvaccinated persons are more likely to get infected and spread the virus, which is transmitted through the air. Most current hospitalizations and deaths are among unvaccinated adults. Almost all K-6th graders are unvaccinated and will not be eligible for vaccines at the outset of the 2021-22 school year. Additionally, although some 7-12th grade students will be fully vaccinated by the start of the school year, many will not. As of August 10, 2021, less than 41% of Californians 12 to 17 years old were fully vaccinated. . .

California is committed to safe, full, in-person learning for all in K-12 schools, following strong public health science. For example, California has implemented a universal masking requirement in all K-12 schools, as well as recommendations around testing strategies for K-12 schools, to support the successful return to full in-person instruction at the outset of the school year, as well as minimizing missed school days.

Vaccination against COVID-19 is the most effective means of preventing infection with the COVID-19 virus, and subsequent transmission and outbreaks. Current CDPH K-12 guidance strongly recommends vaccination for all eligible individuals, thereby reducing COVID-19 rates throughout the community, including in schools, and creating a wrap-around safety layer for unvaccinated students. This Order, consistent with this recommendation, requires verification of vaccination status among eligible K-12 school workers, and establishes diagnostic screening testing of unvaccinated workers to minimize the risk that they will transmit while on K-12 school campuses, where a majority of students are not vaccinated and younger students are not yet eligible for vaccines. . .

In accordance with the August 11, 2021, CDPH Order, Defendant BUSD made vaccination status reporting a condition of employment, and employees deemed unvaccinated would be required to participate in weekly testing. (UMF No. 14.) BUSD’s Board of Education (“Board”) determined that, due to the COVID-19 resurgence, masking and testing were not adequate to address the resurgence. Based on guidance from public health agencies, the Board determined that requiring BUSD employees to be fully vaccinated against COVID-19 was the most effective way to maintain the health and safety of employees and students and provide the safest possible environment for in-person instruction. (UMF Nos. 16-19.) In August 2021, for the 2021 to 2022 school year, Defendant BUSD resumed in-person classes. (UMF No. 16.)

On September 2, 2021, the Board approved Resolution 7, which required all District staff to be fully vaccinated against COVID-19 or obtain an authorized exemption based on medical, religious, or other grounds. (UMF No. 20, DCOE Ex. 7, 8 [Resolution 7].) Resolution 7 also prohibited unvaccinated staff from accessing facilities after October 25, 2021, to prevent the transmission of COVID-19. (UMF No. 22.) Defendant BUSD granted all exemption requests, including those based on religious, medical, or other grounds. (UMF No. 26.) Employees who requested an exemption based on religious beliefs were not assessed on the sincerity of their beliefs, and their request for exemption was granted. (UMF No. 27.)

Dr. Sarah Niemann, who served as the Assistant Superintendent of Human Resources for Defendant BUSD, testified that mandatory vaccination was deemed necessary because BUSD “had major operational impacts when we had reopened in hybrid with constant closures, sick employees and staff, and the death of some spouses of staff, due to 10 COVID. So this was -- this decision was made, given the information that the District had at the time.” (DCOE, Ex. 2 [Nieman Decl., ¶ 1; PCOE Ex. 3 [Niemann Depo. at p. 72:6-12].) Dr. Niemann testified that besides unpaid leave, other accommodations were discussed in a closed Board session, but she declined to elaborate due to attorney-client privilege. (Niemann Depo. at pp. 75:15-76:1.) Dr. Nieman testified that in an open Board session, unpaid leave was the only accommodation discussed, and no other accommodations were discussed. (Id. at p. 76:2-21; 77:3-5.)

On September 12, 2021, Plaintiff requested a religious exemption and requested PCR testing as an alternative. (UMF No. 28.) Dr. Niemann testified that she, John Paramo, and Sharon Cuseo were all assistant superintendents and were the three people who held the reasonable accommodations meetings. (Neimann Depo. at pp. p. 80:19-21, 94:24-25.) These meetings were on a case-by-case basis and “everyone had an individual meeting.” (Id. at p. 80:19-21.)

Dr. John Paramo, who worked as the Assistant Superintendent of Education Services from 2019 to 2023, stated than in assessing possible accommodations “regardless of the basis of their exemption, whether it be medical, religious or other-BUSD evaluated each staff person's respective job responsibilities, specifically, whether their responsibilities required them to have frequent contact with students, faculty, and other staff members on campus.” (DCOE Ex. 1 [Paramo Decl. ¶¶ 1, 16].) “BUSD's evaluation of potential accommodations was based on its desire to accommodate exempted employees while trying to limit COVID-19 transmission and exposure on its campus facilities.” (Id. ¶ 16.) “In its evaluation of potential accommodations for exempted staff members, BUSD also considered the logistics in covering each staff member's respective job responsibilities in the event of their absence due to COVID-19 infection or exposure.” (Ibid.)

On or about October 6, 2021, Plaintiff met with Sharon Cuseo to discuss his request for religious accommodation from the vaccine mandate. (UMF No. 34.) Ms. Cuseo informed Plaintiff that his exemption was approved, but the only accommodation that BUSD could offer was an unpaid leave of absence. (UMF No. 34.)

On October 11, 2021, Dr. Neimann informed Plaintiff that BUSD was not disputing the sincerity of his religious beliefs but that no accommodation other than unpaid leave of absence could be identified without posing an undue burden to BUSD. (UMF No. 36.) The October 11, 2021 letter stated in relevant part:

More specifically, allowing you to forgo vaccination creates an unreasonable risk of infection and illness for you and for all other employees and students . . . More specifically, the presence of unvaccinated individuals who are sharing indoor spaces and interacting with other employees and students will increase the risk of COVID-19 transmission and infection through our District facilities, in violation of the District’s duty to maintain a safe working and educational environment. This significant risk of illness, with the resulting quarantines and isolation, places an undue burden on the efficient operation of the District, including the effective delivery of education services to its students. This poses an unacceptable and undue burden on the District, as it is the District’s priority to protect its students and staff, and to minimize disruption and avoid another shut-down so that students can receive high-quality education in-person.

In sum, the District cannot identify any reasonable accommodation that would permit you to continue to work on-site. Thus, the only reasonable accommodation the District can offer to you is an unpaid leave of absence, as there are no available accommodations that would satisfy the health and safety protections of vaccinations, so as to promote a safe indoor environment for all staff and students against potential exposure of COVID-19. . .

Plaintiff signed and submitted a leave of absence request form dated October 18, 2021. (UMF No. 38.) Plaintiff was on paid leave from October 25, 2021, to March 8, 2022, as he continued to receive checks for his accrued leave. (Smith Depo. at p. 118:21-24.) Plaintiff was later informed that due to a district policy that had been in practice since 2018, all exempted employees who were provided an unpaid leave of absence as a reasonable accommodation were required to pay for their health insurance coverage, unless they elected to discontinue it, regardless of whether their exemption was based on religious, medical, or other reasons. (UMF No. 40.) Plaintiff was also informed that beginning on March 8, 2022, he would be responsible for paying the full premiums for his health and welfare benefits. (UMF Nos. 40, 41.) Plaintiff signed and submitted forms extending his leave until March 26, 2023. (UMF No. 43.) On or about February 12, 2023, Plaintiff signed forms extending his leave to June 2024. (UMF No. 44.)

As the COVID-19 cases decreased, following guidance from public health agencies, the Board voted to lift the vaccine mandate on May 4, 2023. (UMF No. 45.) The mandate was to be in effect until June 30, 2023, and was officially lifted on July 1, 2023. (UMF No. 45.) After the vaccine mandate was lifted, eligible staff were invited to return to their respective positions. (UMF No. 46.) In January 2024, Defendant BUSD contacted Plaintiff to ascertain if he intended to return for the 2024-2025 academic year, but he declined. (UMF No. 47.) Plaintiff submitted his separation form on or about April 21, 2024, which became effective June 30, 2024. (UMF No. 47.) No one at BUSD ever communicated to Plaintiff that he was involuntarily terminated from his position. (UMF No. 48.)

In Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, the United States Supreme Court held that direct evidence of discrimination renders the shifting burdens of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 inapplicable. For example, the employee in Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109 injured his knee while wiring for the county as a deputy sheriff. (Id. at p. 116.) After the employee had knee surgery, he returned to work on light duty, initially in the property and evidence room and later as a bailiff. (Id. at pp. 116-117.) After the parties obtained an agreed medical examination, which set forth Wallace's work restrictions, the county removed him from his light duty job as a bailiff and placed him on an unpaid leave of absence based on its good faith—but incorrect—assessment that because of his restrictions he could not safely perform his duties as a bailiff even with reasonable accommodation. (Id. at pp. 115, 133.) The employee maintained that he could continue to work as a bailiff; he also suggested two other county jobs that he could perform with his restrictions. (Id. at p. 118.) Nevertheless, the county took the position that an unpaid leave of absence was a reasonable accommodation. (Ibid.)

The Wallace Court asserted that Wallace was a direct evidence case because the employee was placed on unpaid leave due to a doctor’s report, thus there was “direct evidence of the employer's motivation for the adverse employment action.” (Wallace, supra, 245 Cal.App.4th at p. 123, fn. 9.) Accordingly, the burden-shifting test from McDonnell Douglas did not apply. (Id. at p 123.) Similarly, in Glynn v. Superior Court (2019) 42 Cal.App.5th 47, the employee provided direct evidence that his employer terminated him because a human resources employee mistakenly believed he was totally disabled and unable to work. (Id. at p. 54.)

To prevail in this action, Plaintiff need only to show that Defendant BUSD discriminated against him by placing him on unpaid leave despite the existence of other more reasonable accommodations. “There are three elements to a prima facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement.” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (Gemini).)

Here, Defendant BUSD does not dispute that Plaintiff held sincere religious beliefs that prohibited him from complying with the vaccine mandate. (Plaintiff’s Statement of Additional Facts (“AMF”) Nos. 3, 5.) Defendant BUSD was aware of Plaintiff’s request to be exempt from the vaccine mandate due to religious beliefs. (UMF No. 34.) Based on mandates from various public health agencies, Defendant BUSD took the position that vaccination was a requirement for employees whose job responsibilities included frequent contact with others on campus and that the only available accommodation based on Plaintiff’s religious beliefs was unpaid leave. (UMF Nos. 18-20, 29-35.) Therefore, Plaintiff has established a prima facia case for religious discrimination.

“Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]’” (Gemini, supra, 122 Cal.App.4th at p. 1011.) Therefore, Defendant BUSD is liable for unlawfully discriminated against Plaintiff by placing him on unpaid leave and depriving him of his usual pay and benefits “unless the [BUSD]. . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, . . . but is unable to reasonably accommodate the religious belief or observance without undue hardship[.]” (Lab. Code section § 1240(l)(1).)

ii. Defendant BUSD Satisfied Its Initial Burden Of Showing that Unpaid Leave was the Only Reasonable Accommodation for Plaintiff as Other Accommodations Posed an Undue Hardship

While the Board did not consider other possible accommodations in its open session wherein the vaccine mandate was issued, Defendant BUSD presents evidence that reasonable accommodations meetings were held with all individuals who requested accommodations and that accommodations were considered on a case-by-case bases. (Neimann Depo. at pp. p. 80:19-21, 94:24-25.)

Moreover, the United States Supreme Court has recognized unpaid leave as a reasonable and generally satisfactory form of accommodation for religious faith and practice:

The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, “[t]he direct effect of [unpaid leave] is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status.”

(Ansonia Bd. of Educ. v. Philbrook (1986) 479 U.S. 60, 70–71 (Ansonia Bd.).)

Employees whose job responsibilities included frequent contact with students were treated differently in terms of accommodations from employees whose job responsibilities did not require frequent contact with others. (Paramo Decl. ¶¶ 1, 16.) Dr. Niemann stated that the five District employees who were granted accommodations other than unpaid leave were granted the alternative accommodations because “these were individuals who could work in isolation, six feet apart from somebody else with a plastic perimeter, mask, and testing.” (Niemann Depo. at p. 103:4-7.) Two of the five employees requested exemptions from the vaccine mandate based on medical reasons, and the other three based on religious grounds. (UMF No. 7.)

However, this alternative accommodation of plastic permitter, mask, and testing was not available to teachers who were now required to teach in person. Dr. Niemann testified as follows:

Q: Was distanced learning ever considered as an accommodation option to any teacher who requested an exemption from the mandate?

A: No, because, at that point, we were back in full in-person learning with kids transferring from period to period, and so the adults needed to be in the rooms with the kids.

Q: Was there ever a teacher who requested an ·exemption from the vaccine mandate, that was given an accommodation, other than unpaid leave?

Q: So every teacher that was teaching live in person, after this mandate went into effect, was vaccinated?

A: That is correct. Teacher, administrator, classified employee at the school site.

Dr. Paramo stated that in considering exemptions to the vaccine mandate, BUSD did consider “the logistical difficulties to ensure adequate coverage of its classrooms, ability to meet the state's mandates for required supervision of students, and avoiding disruption to the education, activities, and services to its students, while providing the safest environment to learn and work for BUSD’s students and staff.” (Paramo Decl., ¶ 17.)

The October 11, 2021, letter to Plaintiff offering unpaid leave as an accommodation explained that it was the only accommodation that did not impose an undue burden on BUSD, considering the risk of COVID-19 transmission posed by “the presence of unvaccinated individuals who are sharing indoor spaces and interacting with other employees,” the “efficient operation of the District, including the effective delivery of education services to its students,” “the District’s duty to maintain a safe working and educational environment,” and “the District’s priority to protect its students and staff, and to minimize disruption and avoid another shut-down so that students can receive high-quality education in-person.” (DCOE Ex. 9; UMF Nos. 34-36; Paramo Decl., ¶ 16.) The August 11, 2021 CDPH Order stated that “California is committed to safe, full, in-person learning for all in K-12 schools” further reflected BUSD's commitment to “promot[ing] a safe indoor environment for all staff and students against potential exposure of COVID-19. (DCOE Ex. 5 at p. 2; 9.)

Therefore, Defendant BUSD met its burden of showing that unpaid leave was the only reasonable accommodation it could offer to teachers that did not impose an undue burden on BUSD. Therefore, the burden shifts to Plaintiff to show that other reasonable accommodations were available that did not unduly burden BUSD.

iii. Plaintiff Fails to Rebut Defendant BUSD’s Showing that Unpaid Leave was the Only Reasonable Accommodation that Did Not Pose an Undue Burden on BUSD

Plaintiff’s opposition asserts that alternative accommodations to unpaid leave existed that Defendant failed to consider. However, Plaintiff fails to show that the alternative accommodations he proposes below were known to Defendant BUSD when it offered Plaintiff unpaid leave as an accommodation based on his religious beliefs.

First, even in cases that involve religious accommodations, “[t]he obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Here, Plaintiff fails to show that he fulfilled his obligation to present the alternative accommodations discussed to BUSD. “An employee cannot demand clairvoyance of his employer.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) Plaintiff fails to cite any case law holding that an employer can be held liable for failing to accommodate a religious practice where the requested accommodation was not known to the employer.

Second, “where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship.” (Ansonia Bd, supra, 479 U.S. at p. 68.) “Any reasonable accommodation is sufficient to meet an employer's obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee.” (Soldinger, supra, 51 Cal.App.4th at p. 370 [italics original].)

As Plaintiff fails to show that the alternative accommodations he presents below were presented or known to Defendant BUSD, BUSD had no obligation to show said accommodations presented an undue hardship. For example, in Burcham v. City of Los Angeles (C.D. Cal. 2022) 562 F.Supp.3d 694, 708, “[w]hile Plaintiffs allege that they have submitted requests for religious exemptions, at no point in the FAC do they state that those requests have been denied or are likely to be denied. Without allegations that Defendants have not, or are not likely to, deny Plaintiffs’ requests for accommodation, Plaintiffs do not plausibly allege that Defendants have discriminated, or threatened to discriminate, against them.”

Accordingly, the court need not consider alternative religious accommodations that were not known or presented to BUSD.

Without evidence that the accommodations discussed below were known to BUSD, Plaintiff offers nothing more than mere speculation about the existence and feasibility of alternative accommodations. “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation].’ ” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196–197.) Even if the court were to consider possible alternative accommodations, Plaintiff fails to present evidence showing that such accommodations were feasible and not unduly burdensome to Defendant BUSD.

Below, Plaintiff presents alternative accommodations he asserts he would have accepted, without presenting evidence that said accommodations were known to Defendant BUSD at the time it considered Plaintiff’s request for a religious accommodation. Plaintiff also fails to present evidence about the feasibility of such accommodations.

Plaintiff states that he would have accepted the accommodation of maintaining six feet distancing from his students, a glass or plastic wall around his desk in the classroom, masking, and twice-weekly PCR testing. (Smith Decl., ¶ 8.) However, Plaintiff fails to show that this method of teaching allowed him to remain fully isolated with no physical contact with both students and faculty, while allowing him to effectively teach and supervise his students.

Plaintiff did not dispute the fact that as a full-time teacher, before the COVID lockdown, he spent about 5 to 6 hours per day interacting with the students he taught in the classroom and also interacted with other staff members on the campus daily. (UMF No. 3.) Plaintiff also testified that “every day” he interacted or collaborated with his colleagues because “we had a situation where there was a storeroom in the -- in the middle of the science classes, so all the -- there was two other chemistry teachers, a physics teacher. And we'd often exchange ideas and, you know, trade labs, and sometimes have lunch back there.” (Smith Depo. at p. 31:10-19.)

Specifically, Plaintiff fails to show how he could maintain six feet distancing from both students and faculty, and how being confined to his desk due to a glass or plastic wall, while wearing a mask and twice-weekly PCR testing, offered the same protection against COVID-19 transmission as vaccination[1] such that distancing and isolation sufficiently protected the health and safety of his unvaccinated students[2] while also not impeding his ability to effectively teach and supervise his students to the same extent as before the COVID-19 lockdown.

Plaintiff also fails to show that remote teaching was a reasonable accommodation because it did not conflict with the State’s and BUSD’s commitment to full in-person learning, and that the quality of remote teaching was the same as in-person teaching. Conversely, Plaintiff testified that there were challenges to remote teaching, specifically as a science teacher with lab experiments:

Q: Were there aspects of your particular job, being a science teacher, that you couldn't do as good when you had to work remotely; for example, lab experiments or something like that?

A: Yeah, you – the labs, you know, the hands-on experience. What me and another chemistry teacher did is we -- we would go into our classrooms during that year and film the labs and then upload them -- you know, film us doing the labs and uploaded them onto Google Classroom. But it's not the same as the students doing it, obviously.

Q: So in your opinion, it's better for the students to be in-person doing the lab experiments versus a distance learning approach when it comes to science?

Q: Were any other aspects of your job made more difficult by the distance learning?

A: A lot of students, you couldn’t tell whether they were really there or not. They would, you know -- you know, turn off their screen, or they would put an avatar up. And so you -- that was the other hard part, you know, how many students were actually paying attention through the Zoom or the Google Meets platform.

Accordingly, Plaintiff fails to show he could effectively teach and supervise his students remotely, such that remote teaching was a reasonable accommodation that BUSD could have offered.

Plaintiff also states that he would have accepted teaching students from a separate classroom whereby his students remain seated in one classroom and he provides instructions to them virtually from another classroom. (Smith Decl., ¶ 11.) “A camera would be placed in the classroom [where] Mr. Smith would be located in while his students would retain his instructions from a video screen in their classroom where a vaccinated BUSD employee can be present to monitor his students.” (Id.)

Again, Plaintiff fails to explain how such an accommodation would be reasonable given his testimony that the science classes shared a storage room with other teachers, resulting in daily interaction with other faculty. (Smith Depo. at p. 31:10-19.) Plaintiff fails to offer any evidence showing that it was not an undue burden for BUSD to offer Plaintiff and other similarly situated teachers additional vaccinated staff to supervise their students in one classroom while the unvaccinated teachers occupied and taught from additional empty classrooms.

“The discrimination at issue must be a substantial motivating factor in the adverse employment decision.” (Arnold v. Dignity Health (2020) 53 Cal. App.5th 412, 425.) Plaintiff fails to rebut Defendant BUSD’s showing that alternatives to unpaid leave were granted to other individuals who requested religious accommodations. (UMF No. 7.) Therefore, Plaintiff cannot show that religion was a motivating factor in BUSD offering unpaid leave as the only accommodation to teachers, like Plaintiff.

As Plaintiff fails to show that triable issues of material fact exist, the motion for summary adjudication as to the first cause of action is granted.

The FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov't Code § 12940(k).

Since Plaintiff’s religious discrimination claims fail, so does Plaintiff’s second cause of action. “[B]ecause the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880; see also Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1316; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)

To establish a prima facie case of retaliation under FEHA, Plaintiff must prove that “(1) he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Plaintiff’s 4AC alleges that “Defendants retaliated against Plaintiff for seeking accommodation for his religion and religious creed in violation of the FEHA through numerous illegal acts, including, without limitation, those set forth in Paragraphs 9-21 of this Complaint” as they relate to being placed on leave and having his benefits terminated. Plaintiff’s opposition purports to identify two protected activities, “[t[he first is his response letter to BUSD’s October 11, 2021 letter whereby Mr. Smith outlined his religious bases reasons for refusing to ingest the vaccine and how he felt the District’s actions were discriminatory” and second “BUSD subjected Mr. Smith to an adverse employment action by placing him on indefinite unpaid leave followed by stripping away his benefits.” (Opposition at p. 15:25-16:2.) “Under these circumstances, BUSD also constructively discharged Mr. Smith from its employment, as Mr. Smith, like any reasonable employee, had no reasonable alternative but to quit his employment rather than be kept at home indefinitely without being paid after BUSD intentionally created intolerable working conditions for him (being on unpaid leave without benefits with no end in sight).” (Id. at p. 16:2-6.)

Accordingly, the only protected activity that Plaintiff identifies as having engaged in is his request for a religious accommodation. Defendant BUSD met its burden of showing that its decision to offer unpaid leave was not to retaliate against Plaintiff, but as an accommodation to his request to be exempt from the vaccination mandate due to his religious beliefs. (UMF Nos. 22, 36.) Alternatives to unpaid leave were granted to other employees even when based on religious grounds because those employees were not similarly situated to Plaintiff. (UMF No. 7.) Thus, there is no evidence of retaliatory animus against Plaintiff for seeking an exemption from the vaccine mandate. (See George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 [“It is well established that a plaintiff in a retaliation case need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision.”].) Defendant BUSD also granted all exemption requests, including those based on religious, medical, or other grounds. (UMF No. 26.)

Plaintiff also fails to show that he presented to Defendant BUSD alternative accommodations to unpaid leave that were ignored by BUSD or rejected despite not being unduly burdensome to BUSD. Moreover, Plaintiff does not dispute the fact that “employees who are unpaid leave of absence—for any reason—must pay their insurance premiums directly to BUSD to maintain their benefits coverage” and that the policy has been in place since 2018. (UMF No. 40.) “[A]ll exempted employees who were provided unpaid leave of absence as a reasonable accommodation were required to pay for their health insurance coverage, unless they elected to discontinue it, regardless of whether their exemption was based on religious, medical, or other reasons.” (UMF No. 40.)

Here, Plaintiff fails to show that the termination of his benefits was due to discrimination rather than pre-established District policy. (Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th 205, 217 [affirming summary judgment on a retaliation claim because the plaintiff did not rebut the defendant’s evidence that it had legitimate, nondiscriminatory business reasons and thus, there was no causal link between the defendant’s adverse employment actions and the plaintiff’s filing of a discrimination charge].) Lastly, Plaintiff does not deny the fact that he submitted the employment separation form, and BUSD never told Plaintiff he was terminated from his position. (UMF Nos. 47, 48.)

[1] “Vaccination against COVID-19 is the most effective means of preventing infection with the COVID-19 virus, and subsequent transmission and outbreaks.” (DCOE Ex. 5 at p. 2.)

[2] “Almost all K-6th graders are unvaccinated and will not be eligible for vaccines at the outset of the 2021-22 school year.” (DCOE Ex. 5 at p. 2.)