Judge John J. Kralik, Case 22BBCV00765 2023-01-20 Tentative Ruling

Plaintiffs Krista Pansini, Jane Creager, Vick Astamendi Edwards, Michelle Funston, Andrea Graber, Theresa Heldt-Valverde, Tracy Henry, Tricia Henry, Michael Kimmel, and Marlene Wieden (“Plaintiffs”) allege that they were employees of Defendant Burbank Unified School District (“BUSD”) at all times relevant for this action. Plaintiffs allege that they filed charges with the California Department of Fair Employment and Housing (“DFEH”) and were issued right-to-sue letters.

The Complaint alleges that the BUSD, through its board, adopted a resolution mandating that its employees be vaccinated with respect to COVID-19. (Complaint ¶¶23-24.) According to the Complaint, this requirement was based on misleading and exaggerated claims, and not based on scientific data. (Id., ¶¶25-33.) The policy stated that “a limited number of individuals” “may” be exempt if they provide a statement “declining vaccination based on Religious Beliefs ….” (Id., ¶31.) Additional policies were enacted providing for specific accommodations that were not offered to Plaintiffs. (Id., ¶¶31-37.)

Plaintiffs allege that they requested an exception for BUSD’s COVID-19 vaccination policy as a reasonably accommodation to their sincerely held religious beliefs and/or medical conditions. Plaintiffs allege that the work requirement of being vaccinated conflicted with their religious beliefs that “their bodies are temples of the Holy Spirit and that to inject medical products that have any connection whatsoever to aborted fetal cell lines would be defiling the temple of the Holy Spirit.” (Compl., ¶44.)

Plaintiffs allege that they each received a similar denial stating that BUSD was not disputing the sincerity of their religious beliefs at that time, but BUSD was unable to identify a reasonable accommodation that would permit Plaintiffs to work on site and satisfy the health and safety protections of vaccinations, except unpaid leave, that would not pose an undue burden on BUSD. (Compl., ¶21.) The letter further stated that if Plaintiffs elected not to get vaccinated, then their only options were to submit a request for unpaid leave of absence or submit their resignation. (Id.) Plaintiffs argue that they know for certain that unvaccinated individuals can work safely in school environments with safety protocols in place, and that these protocols were not offered to them. (Id., ¶33.) Plaintiffs allege that BUSD failed to provide factual evidence to support its claim of undue burden and failed to follow the law for religious exemption and reasonable accommodation.

The complaint, filed October 14, 2022, alleges causes of action for various forms of employment discrimination under Government Code § 12940: (1) religious discrimination (Gov’t Code, §§ 12940(a, l), et seq.); (2) religious discrimination – failure to engage in interactive process (Gov’t Code, §§ 12940(1) et seq.); (3) religious discrimination – failure to provide reasonable accommodations (Gov’t Code, §§ 12940(l) et seq.); (4) harassment (Gov’t Code, §§ 12940 et seq.); and (5) retaliation (Gov’t Code, §§ 12940(h, l) et seq.).

On December 22, 2022, BUSD filed a demurrer and motion to strike portions of the complaint.

With the moving papers, BUSD requests judicial notice of Exhibits: (C) an excerpt from Board Packet for September 2, 2021; (D) Proposed Resolution 7 as continued in the Board Packet; and (E) an excerpt from the Board Minutes for September 2, 2021 re Resolution 7. In the complaint, Plaintiffs cited to portions of the Board documents, including Resolution No. 7 dated September 2, 2021 but did not attach the documents. (See Compl., ¶¶23-29.) The Court takes judicial notice of the Board documents, but not of the truth or the conclusive factual nature of the statements contained therein. Moreover, the Court notes that these documents form only a part of the factual story put into issue by the Complaint. Plaintiffs have alleged that BUSD failed to comply with this Resolution, but even if BUSD is presumed to have complied with its own Resolutions, that alone does not insulate it from claims of arbitrary or discriminatory behavior.

The elements for a claim of discrimination under Government Code “section 12940, subdivision (a), are (1) the employee's membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee's interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) The Court finds that each of these elements have been alleged.

BUSD argues that the 1^st cause of action fails because to the extent it is a general discrimination claim, it cannot be based on failure to accommodate. In addition, BUSD argues that if this cause of action is based on failure to accommodate, it is duplicative of the 3^rd cause of action.

Throughout the demurrer, BUSD misconceives Government Code § 12940. A review of the full statute shows that the legislature intended a thorough and necessarily redundant statute under which all conceivable forms of arbitrary discrimination would be severely punished and rooted out of the employment context. This thorough and redundant treatment necessarily comes with the obvious intended result that the same behavior, or different aspects of the identical course of conduct, if egregious enough, could constitute multiple “unlawful employment practices.” Of course, in cases such as those cited by BUSD, the fact that a course of conduct fails the test for one unlawful practice might mean that it fails another test as well, especially if it is ultimately based on the same lawful conduct.[1] Nevertheless, the legislature did not intend that an employer engaged in religious discrimination can only be liable for one of the overlapping forms of such discrimination that are prohibited by Government Code § 12940. The fact that BUSD thinks this case is “really about” one form of unlawful discrimination does not make it not about another.

In the 1^st cause of action, Plaintiffs allege that they each requested an exemption from the vaccination requirement in accommodation of their sincerely held religious beliefs. (Compl., ¶62.) Plaintiffs allege they were performing competently in their position with BUSD. (Id., ¶63.) Plaintiffs allege that BUSD took actions that adversely affected Plaintiffs’ employment, including discrimination based on Plaintiffs’ expression of religion. (Id., ¶¶64-65.) They believe that the expression of the religious creed and the conflict with the employment requirement was a substantial motivating factor in BUSD’s decision to take adverse employment actions against Plaintiffs. (Id., ¶65.) They have cited supporting factual detail showing that the policy was imposed arbitrarily at the outset, that it necessitated the termination of a limited number of individuals and that accommodations offered to other individuals or specifically contemplated by the resolution, were not offered to them. Their choice was resignation or unpaid leave. Assuming as we must that these allegations are true, the course of conduct constitutes an adverse employment action.

B. 2^nd cause of action for Religious Discrimination - failure to engage in interactive process

BUSD argues that Government Code, § 12940 only mentions the interactive process with respect to medical conditions and disabilities, and not to religion. It is true that Section 12940(n), which discusses the “interactive process,” appears to relate only to a known physical or mental disability or known medical condition.” (Emphasis added.) The second cause of action, however, cites to section 12940(l) et seq. as the basis for the claim. Plaintiffs allege that BUSD failed to explore through an interactive process the reasonable alternative means of accommodating their religious belief that was in conflict with the work requirement. (Compl., ¶74.) They allege that BUSD took actions to adversely affect Plaintiffs’ employment. (Id., ¶75.)

Here, BUSD has a point regarding a duplicative pleading. The alleged failure to engage in an “interactive process,” appears to be part of either the claim regarding religious discrimination or a claim of failure to accommodate, but the only place where the legislature has designated a separate unlawful act purely based on a failure to follow such a process is in the context of physical or mental disability or a known medical condition. Here, Plaintiffs fail to allege any facts regarding medical and/or mental disabilities or known medical conditions and that they informed BUSD of any medical/mental disabilities or conditions and sought an accommodation thereto.

Thus, the demurrer to the 2^nd cause of action is sustained. The Court will allow leave to amend to provide Plaintiffs with the opportunity to allege valid claims of physical or mental disabilities or known medical conditions, if any.

C. 3^rd cause of action for Religious Discrimination - failure to provide reasonable accommodations

In the 3^rd cause of action for religious discrimination – failure to provide reasonable accommodations, Plaintiffs allege that they each requested a reasonable alternative means to accommodate their religious beliefs and sought an exemption to the vaccination order. (Compl., ¶¶83-84.) They allege BUSD failed to provide reasonable alternative means to accommodate their religious beliefs and took actions that adversely affected Plaintiffs’ employment. (Id., ¶86.) As alleged, it appears that BUSD provided the religious exemption only to a limited number of employees if at all and did not offer a meaningful accommodation to these Plaintiffs, even though there was a basis and method for such accommodations stated in the policy itself. Assuming the facts and circumstances alleged in their complaint are true, Plaintiffs’ religious beliefs and expression of their creed were substantial motivating factors in BUSD’s decision to not to provide them with an accommodation. (Id., ¶87.)

“Two principles underline a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738.)

“Under California law, an employer is required to accommodate not just a religious belief, but also a religious observance, if reasonably possible without undue hardship.” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013.) “The relevant inquiry is the sincerity, not the verity of the employee's religious beliefs.” (Id.) To assess whether a FEHA claimant’s “beliefs, observances, or practices” have “a place of importance parallel to that of traditionally recognized religions,” the guidelines are: “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.” (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 69.)

In the complaint, Plaintiffs allege that the work requirement of being vaccinated conflicted with their religious beliefs that “their bodies are temples of the Holy Spirit and that to inject medical products that have any connection whatsoever to aborted fetal cell lines would be defiling the temple of the Holy Spirit.” (Compl., ¶44.) Plaintiffs allege that because the currently available vaccines are “developed and produced from, tested with, researched on, or otherwise connected with the aborted fetal cell lines, Plaintiffs’ sincerely held religious beliefs compel them to abstain from accepting or injecting any of these products into their bodies, regardless of the perceived benefits or rationales. Thus, while there may be some faith leaders and other adherents whose belief of Scripture is different, and who may be willing to accept one of the three currently available COVID-19 vaccines despite their connection with aborted fetal cell lines, any BUSD employee is entitled to interpret the Scriptural commands differently.” (Id., ¶45.)

BUSD argues that the complaint fails to allege the religious character of their alleged beliefs, which are essential to their claim for a religious exemption. In opposition, Plaintiffs argue that BUSD acknowledged in its letters of denial to Plaintiffs that had sincere religious beliefs. As quoted by Plaintiffs, the letter stated, “The District is not disputing the sincerity of your religious beliefs at this time.” (Compl., ¶21 [emphasis added].)

The U.S. and California Constitutions, as well as the statute and regulations at issue here, all provide a basis for protection of a broad spectrum of religious beliefs and practices. This is not a case where the plaintiff is inventing a novel, sui generis religion that looks like it was contrived to accommodate the claim at issue. The allegations do not come within the very narrow holdings of cases such as Friedman, supra, which held that veganism is not a religious creed. The beliefs alleged here are central tenets of established religions that have millions of adherents in the United States. They deal with the fundamental and ultimate questions of life and death and the sacred nature of the human body that religions have traditionally dealt with since the Bible was first recited. They are drawn from the Bible, which has offered many religious sects a comprehensive belief system for thousands of years. All of these tenets would be easily recognized as religious by the initial drafters of the U.S. and California Constitutions. The fact that the specific application of these beliefs may not predominate in any of these religions is not determinative, as even unorthodox beliefs are accepted so long as they are dealing with the same ultimate issues that orthodox beliefs address. (See Friedman, supra, 102 Cal.App.4th at 47-48.) BUSD has not previously questioned the sincerity of these beliefs, leading to the inference that it would find any religious belief that conflicted with its vaccine requirements to be insufficiently religious to be recognized. Under such circumstances, further examination of the sincere nature of the Plaintiffs’ belief systems is unwarranted.

It is an unlawful employment practice for an employer to harass an employee. (Gov’t Code, §12940(j)(1).) To establish a claim for harassment [in a hostile work environment], Plaintiff must show: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to unwanted harassing conduct because of his/her protected status; (3) the harassing conduct was severe or pervasive; (4) a reasonable person of the protected class in plaintiff’s circumstances would have considered the work environment to be hostile or abusive; (5) plaintiff considered the work environment hostile or abusive; (6) defendant’s supervisor or agents engaged in such conduct or knew of such conduct and failed to take corrective action; (7) plaintiff was harmed; and (8) the conduct was a substantial factor in causing plaintiff’s harm. (CACI 2521A.)

In the 4^th cause of action, Plaintiffs allege that they each requested an exemption from the vaccination requirement based on their religious beliefs, but BUSD violated FEHA by harassing Plaintiffs, creating a hostile work environment, and/or failing to prevent a hostile work environment related to the expression of their religious beliefs. (Compl., ¶¶93, 96.) Plaintiffs allege that BUSD’s conduct was severe or pervasive, was unwelcome to Plaintiffs, and a reasonable person in their circumstances would have considered the work environment hostile, intimidating, offensive, oppressive, or abusive. (Id., ¶98.)

BUSD argues that a denial of an exemption claim is not a sufficient basis to allege harassment. Again, that may be true in some factual situations, but not others, and whether it is true in this case depends on the facts of this case, as to which the Court cannot perform a final evaluation at the demurrer stage. Here, accepting the allegations at face value, BUSD applied a comprehensive and allegedly arbitrary policy that covered every employee, and then applied the policy arbitrarily against Plaintiffs. Of course, much depends on proof, but it is not beyond peradventure that just the application of this policy, which must have affected the entire working environment, could have resulted in a hostile work environment to a degree that it could constitute harassment as well as discrimination. Not only these employees, but numerous others who held similar beliefs were required to choose between their livelihood and their religion. Unlike these employees, some chose their livelihood because they had to, creating the potential for employee conflict and resentment and distrust. Some employees were apparently allowed to continue working based on their religious beliefs, while others with beliefs BUSD did not challenge as being less sincere were not allowed to work. The Court cannot conclude on a demurrer that such circumstances cannot constitute harassment as well as unlawful discrimination and failure to accommodate. This is a demurrer. The Court is not ruling definitively here. Nor should it.[2]

“The elements of a claim for retaliation in violation of section 12940, subdivision (h), are … : (1) the employee's engagement in a protected activity, i.e., ‘oppos[ing] any practices forbidden under this part’; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

BUSD demurs to the 5^th cause of action for retaliation, arguing that the allegations fail to show a retaliatory action or motive, as distinct from a denial of an exemption request. The allegations of the retaliation claim are essentially the same as the allegations in the 1^st to 4^th cause of action—i.e., Plaintiffs requested an exemption to the vaccination requirement based on their religious beliefs and BUSD engaged in actions that adversely affected Plaintiffs’ employment. (Compl., ¶¶106, 108.)

The request for exemption appears to be protected conduct under this arm of the statute. Here, Plaintiffs have alleged that BUSD failed to provide them with the accommodations that the policy itself outlined, that the exemption was allowed for some religious employees, but no accommodation was offered to them at all. Under these circumstances, an inference can be drawn at the pleading stage that BUSD’s conduct was motivated by hostility to these Plaintiffs’ religious beliefs, the sincerity of which it did not contest. Under such circumstances, if proved, a trier of fact could conclude that these employees were designated for retaliation as well as discrimination based on their expression of these particular religious beliefs in their claim of exemption.

BUSD moves to strike the 1^st cause of action insofar as it is brought under Government Code, § 12940(a) and (l). The Court will strike the reference to Section 12940(l) in the heading of the First Cause of Action. It appears that Section 12940(l) is addressed in the Third Cause of Action while Section 12940(a) is addressed in the First Cause of Action.

Defendant Burbank Unified School District’s demurrer to the second cause of action is sustained with 20 days leave to amend. Otherwise, the general demurrers and the unsupported special demurrers to the remainder of the complaint are overruled.

Defendant’s motion to strike is granted as to references to Government Code, § 12940(l) in the heading of the 1^st cause of action.

[1] See e.g., Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 735–736.

[2] CACI 2023, which states that harassing conduct may include, but is not limited to certain acts is hardly of any help here.

Superior Court of California

County of Los Angeles

Department B