Judge: Kenneth J. Medel, Case: 37-2022-00024191-CU-WT-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2022-00024191-CU-WT-CTL RINGLER VS THE SCRIPPS RESEARCH INSTITUTE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/09/2023

Plaintiff's Request in the Opposition for a Continuance based on CCP 437c(h) is DENIED. A party may seek a continuance by filing a declaration in opposition to a motion for summary judgment by detailing '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.' Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715. Unexplained or 'bald assertions' that facts exist to

justify opposition are insufficient. Id. at 715. The declaration 'must detail the specific facts that would show the existence of controverting evidence.' Ibid. Plaintiff fails to identify what additional discovery is needed and why she could not obtain this information earlier.

Defendant's Objections to the Declaration of Dr. Robert W. Malone are SUSTAINED.

Defendant TSRI's Motion for Summary Judgment is GRANTED.

This is a religious discrimination case.

Plaintiff has alleged three causes of action against her former employer - (1) Failure to Accommodate Religious Belief or Observance; (2) Religious Discrimination; (3) Failure to Prevent Discrimination In September, 2021, defendant The Scripps Research Institute implemented a mandatory vaccination policy during the COVID-19 pandemic for all employees. Plaintiff was employed as a Events Manager and declined vaccination. Initially, plaintiff requested an exemption for secular reasons.

TSRI states that it considered Ringler's request and concluded that, based upon plaintiff's in-person job duties, they could not accommodate plaintiff's request for exemption. Plaintiff subsequently provided a an exemption request based upon religious beliefs. Because TSRI was unable to identify a reasonable accommodation for Ringler, it terminated her employment on September 15, 2021.

Plaintiff asserts a claim for religious discrimination under California's Fair Employment and Housing Act (FEHA) as well as a religious failure to accommodate claim and a derivative FEHA failure to prevent discrimination claim.

Religious Discrimination To state a claim for discrimination, plaintiff must show an adverse employment action that is causally connected to the alleged basis for discrimination – in this case, religion. The facts in this case show that TSRI had concluded her position could not be accommodated prior to her disclosing religion as a basis for her request. (UF 31-32.) The facts in this case indicate that on June 16, 2021, TSRI communicated through email that it to implement a mandatory vaccination policy for all employees coming onto campus. (UF 15.) TSRI also informed employees '[r]easonable accommodations will be made for existing personnel who are unvaccinated, whether due to disability, religion or personal belief.' (UF 16.) On June 18, 2021, Ringler emailed VP Human Resources, Karen Haggenmiller to request an exemption from the upcoming vaccination policy. (UF 18.) Plaintiff offered 11 bullet points detailing her rationale for refusing to get vaccinated. (UF 19.) The response did not mention religious beliefs.

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2968986  39 CASE NUMBER: CASE TITLE:  RINGLER VS THE SCRIPPS RESEARCH INSTITUTE [IMAGED]  37-2022-00024191-CU-WT-CTL On August 5, 2021, Ringler had a Zoom meeting with her supervisors, Anna-Marie Rooney and Virginia Chambers, regarding TSRI's forthcoming COVID-19 policy. (UF 21.) Rooney informed Ringler that, as anticipated, the vaccination policy would go into effect on September 15, 2021. (UF 22.) Rooney explained that because Ringler's job required her to be on campus to perform certain essential duties, TSRI would give Ringler additional time to reconsider whether she would get vaccinated, as unfortunately, this was not a position that could be done remotely. (UF 23.) On September 3, 2021, Ringler had another Zoom meeting with Rooney, Chambers, and Haggenmiller. (UF 24.) Haggenmiller reiterated to Ringler that her exemption request could not be accommodated because her position as Events Manager required her to be present for in-person events. (UF 25.) TSRI advertised such events as being fully vaccinated (i.e., proof of vaccination was required, and no attendees would receive an exemption), which reasonably precluded TSRI from exempting its onsite Events Manager from the requirement. (UF 26.) Despite multiple conversations regarding several proposals, TSRI determined it could not safely accommodate Ringler given her essential job duties required in-person attendance and close interpersonal interactions at events on campus. (UF 27.) Because it is undisputed TSRI did not learn about Ringler's religious-based objection until after it had already made its decision. See, e.g., Trop, 129 Cal. App. 4th at 1145 (affirming summary judgment to employer where it did not learn of employee's pregnancy until after decision to terminate her employment); See also Lewis v. United Parcel Service, Inc. (9th Cir. 2007) 252 F. App'x 806, 808, affirming 2005 WL 2596448 (N.D. Cal. 2005); see also Friedman v. S. Cal. Permanente Med. Grp.

(2002) 102 Cal. App. 4th 39, 45 (element of FEHA religious discrimination claim is that 'the employer was aware of that belief.') In Opposition, plaintiff explains her lack of religious assertions as follows: She states that her email to Haggenmiller on June 18, 2021, did not explicitly raise religion as an issue because 'religion was personal and not something Ringler went around telling people.' Ringler did not have regular contact with Ms. Haggenmiller. Ringler had never spoken with Ms. Haggenmiller about anything religious.

'Ringler did not know if she had religious beliefs or not.' However, the fact that religion was 'private' and not asserted supports defendant's position that the decision could not be based upon religious determination. If plaintiff did not know she had religious beliefs or not, it is hard to say that defendant was discriminating against plaintiff based upon religious beliefs. The focus is not on plaintiff's beliefs (sincere or otherwise), but on whether defendant's decision was connected to plaintiff's religious beliefs.

Even if plaintiff could establish a prima facie case of religious discrimination, TSRI has proferred a 'legitimate business reason' for the termination decision. TSRI implemented a mandatory vaccination policy and gave notice to Ringler on several occasions that she would need to get vaccinated against COVID-19 by September 15, 2021 or she would be subject to termination. (UF 13-16, 22.) Ringler refused to get vaccinated. (UF 36.) In response, TSRI terminated Ringler's employment consistent with its policy. (UF 33.) Ringler does not dispute these facts. Instead, Ringler contends that despite being a leading scientific research institute, TSRI gave 'deference to the fear and pseudoscience of a radical political agenda,' by requiring employees to be vaccinated against COVID-19 before returning to work on campus. (See Ex. 19 to NOL.) In Opposition, plaintiff offers the expert opinion of Dr. Robert W. Malone, who opines as to effectiveness of alternative procedures to allow plaintiff to submit to testing. Without discussing the details of Dr.

Malone's support for his opinions, the Court finds that his conclusions largely are irrelevant to the question presented to the Court. Private employers are legally permitted have mandatory vaccination policies, and plaintiff may not second-guess that decision. Hodges v. Cedars-Sinai Med. Ctr. (2023) 91 Cal.App.5th 894, 308. In fact, the federal government was encouraging private employers to institute vaccine mandates. Whether the decision to require vaccination was the best decision or other alternatives exist, the question is whether it was a legitimate business decision and whether the company acted with motive to illegally discriminate.

The Court has held in Hodges v. Cedars-Sinai Med. Ctr. (2023) 91 Cal. App. 5th 894, 308 that an employer's 'reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility ..., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Guz, 24 Cal.4th at 359 (emphasis in original). Numerous courts, inside and outside of California, have recognized an employer's right to institute a mandatory vaccination policy.1 Hodges, 91 Cal. App. 5th at 308; Hustvet v. Allina Health Sys., Calendar No.: Event ID:  TENTATIVE RULINGS

2968986  39 CASE NUMBER: CASE TITLE:  RINGLER VS THE SCRIPPS RESEARCH INSTITUTE [IMAGED]  37-2022-00024191-CU-WT-CTL (8th Cir. 2018) 910 F.3d 399, 413; Robinson v. Children's Hosp. Bos. (D. Mass. Apr. 5, 2016) 2016 WL 1337255; see also Zucht v. King (1920) 260 U.S. 174, 176 ('[It is] settled that it is within the police power of a state to provide for compulsory vaccination.') Accordingly, because TSRI has established a legitimate, non-discriminatory reason for termination (non-compliance with its mandatory vaccination policy), the burden shifts to Ringler 'to produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.' Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 862.

TSRI made the decision it could not accommodate her position before Ringler disclosed her religious objection to the vaccination policy. Thus, religion could not have played a role in TSRI's decision to terminate Ringler. (UF 31-32.) There is no evidence that TSRI spoke ill or otherwise made derogatory remarks about her religious beliefs or Christianity generally. (UF 37-38.) In addition, the undisputed evidence of TSRI's affirmative conduct belies any rational inference of religious animus.

Further, on September 15, 2021, TSRI offered to allow her to continue working remotely part-time until a replacement could be hired. (UF 28.) Ringler declined. (UF 29.) TSRI then offered her 12 weeks of personal leave to assist with the transition, which she also declined. (UF 34-35.) These actions are not actions of an employer with animus toward plaintiff's religion.

Failure to Accommodate Courts analyze religious accommodation claims by first assessing whether the employee's religious belief conflicts with the employer's policy, and if it does, the employer must 'show either that it attempted to reasonably accommodate the employee's religious beliefs or that any accommodation of the employee's needs would result in undue hardship.' Balint v. Carson City, Nev. (9th Cir. 1999) 180 F.3d 1047, 1051. Ringler's claim fails for several reasons.

As stated above, TSRI was not made aware of religious issues. TSRI was not legally obligated to accommodate Ringler's secular beliefs for refusing to get vaccinated. Fallon v. Mercy Catholic Med. Ctr.

of Southeastern Pennsylvania (3d Cir. 2017) 877 F.3d 487, 492 ('anti-vaccination beliefs' themselves 'are not religious' and, therefore, are not entitled to accommodation under Title VII.) It was not until after TSRI had informed her it could not accommodate her in-person Events Manager position, that she belatedly chose to also mention religion amongst a host of secular reasons. (UF 28-32.) Thus, TSRI had no affirmative duty to accommodate her beliefs. E.g., Aukamp-Corcoran v. Lancaster Gen. Hosp. (E.D. Pa. Feb. 18, 2022) 2022 WL 507479, at *5 (dismissing religious accommodation claim on summary judgment where court found timing of religious objection was 'an attempt to circumvent Defendant's mandatory vaccination policy.') Further, TSRI has shown that an essential job functions of plaintiff's position as Events Manager required her to be on campus managing events. The increased danger of COVID transmission to a vulnerable population is a legitimate concern for the employer. See Together Employees v. Mass General Brigham Inc. (D. Mass. Nov. 12, 2021) 2021 WL 5234394 [permitting plaintiffs who were unvaccinated against COVID-19 to continue working at the employer's campus without being vaccinated would 'materially increase the risk of spreading the disease and undermine public trust and confidence in the safety of its facilities.' Such harms, 'while perhaps difficult to measure in terms of dollar amounts,' posed an undue hardship on the employer. Id.] Exempting Ringler from TSRI's vaccination policy was not reasonable given her role.

Defendant has provided evidence that the role required plaintiff to be on campus and to engage in face-to-face interactions with campus personnel, vendors, and guests, both prior to the pandemic, and in connection with TSRI's reopening. (UF 6-9, 14.) The company was requiring all attendees to get vaccinated and advertising this to the public (UF 26.) It would have been misleading and unsafe for TSRI to advertise an event as being fully vaccinated while simultaneously allowing the person running the event to be unvaccinated.

Prior to implementing the policy, TSRI evaluated available information and determined that requiring all employees to be vaccinated against COVID 19 was the most effective way to mitigate the risk of spread on campus and potential illness due to the virus. (UF 12.) The company made a legitimate business decision that the risk of spreading COVID-19 through close social interactions was significant and TSRI reasonably concluded having an unvaccinated employee in plaintiff's role interacting with numerous people at events for extended periods of time would be unsafe for other attendees, all of whom were required to be vaccinated. (UF 26-27.) The law 'does not require that safety be subordinated to the Calendar No.: Event ID:  TENTATIVE RULINGS

2968986  39 CASE NUMBER: CASE TITLE:  RINGLER VS THE SCRIPPS RESEARCH INSTITUTE [IMAGED]  37-2022-00024191-CU-WT-CTL religious beliefs of an employee.' Draper v. U.S. Pipe & Foundry Co. (6th Cir. 1975) 527 F.2d 515, 521.

The evidence also shows that defendant offered reasonable accommodations to plaintiff. After meeting with Ringler multiple times in advance of the rollout and considering potential alternatives, TSRI offered her a temporary part-time remote position, permitting her to plan events remotely while it looked for a full-time replacement for her position. (UF 28.) While this position was temporary, it offered to allow her to continue to do part-time remote work while it searched for a permanent replacement. (UF 28.) Failure to prevent discrimination This claim is derivative.

Punitive Damages At the very least, there is no evidence that anyone acted with malice, oppression or fraud to support punitive damages.

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