Conner v. Raver

1

ROCHELLE CONNER, Plaintiff, v. TRISH RAVER, et al., Defendants.

No. 22-cv-08867-JST

United States District Court, N.D. California

August 24, 2023

ORDER GRANTING MOTION TO DISMISS

RE: ECF NO. 10

JON S TIGAR, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants Trish Raver's, Lori Elefant's, and the City of Emeryville's motion to dismiss. ECF No. 10. The Court will grant the motion.

I. BACKGROUND

Plaintiff Rochelle Conner worked for the City as an Executive Assistant to the City Manager and City Attorney from November 2015 to January 2022. ECF No. 1 ¶¶ 15, 38. In response to the COVID-19 pandemic, Emeryville required its employees, including Conner, to work remotely from March 2020 to April 2021. Id. ¶ 24. After resuming its in-person operations, on July 6, 2021, the City began requiring its employees to certify daily that they were not experiencing symptoms of COVID-19 and, to their knowledge, had not been in contact with someone infected with COVID-19. Id. ¶ 26; ECF No. 1-5 at 2.

On October 11, 2021, the City implemented a policy requiring all employees to receive the COVID-19 vaccine or, in the alternative, submit to weekly testing (the “Policy”). ECF No. 1 ¶ 29; ECF No. 1-7 at 2-3. Testing was to be conducted during work hours and costs were to be covered. ECF No. 1-7 at 3. The Policy also provided that Human Resources would “provide employees with all forms necessary to implement these requirements, including a form to request an accommodation for medical or religious reasons of the testing mandate.” Id. On October 18, Plaintiff filed a request for a religious accommodation in which she “specified . . . how the vaccination and testing activities violated her sincerely held religious belief according to II Timothy 1:7 and Ephesians 6:12.” Id. ¶ 31, see id. ¶ 30, ECF No. 1-8 at 4.

Between October 2021 and January 2022, the City met with and corresponded with Plaintiff concerning her request. See ECF No. 1-14 at 2. On November 3, 2021, Plaintiff proposed three alternative accommodations that she believed to be reasonable: (1) perform the daily certification, wear a facemask, socially distance, and limit the frequency and duration of direct interaction with others; (2) relocate to a vacant workspace, continue to wear a face mask, socially distance, and limit the duration of direct interaction with other employees; or (3) work remotely. ECF No. 1-9 at 4, see ECF No. 1 ¶ 33.

After some additional correspondence, on December 13, 2021, City Human Resources Director Trish Raver notified Plaintiff that the City was still evaluating Plaintiff's request. ECF No. 1-10 at 2. Raver noted that Plaintiff had narrowed her requested accommodation to remote work and explained that the City offered Plaintiff “the option to take a non-invasive, non-pharmaceutical COVID-19 saliva test[]” instead of nasal swab testing as an accommodation.” Id. Raver further solicited responses to a series of “questions to understand and make a further determination regarding how [Plaintiff's] sincerely held religious belief(s) conflicts with COVID-19 testing, and [her] willingness to accept the non-invasive saliva COVID-19 testing.” Id.

Raver elaborated that remote work was not an acceptable accommodation for a number of reasons. First, Plaintiff “support[ed] the City Manager and the City Attorney who [were] both in the office on a full-time basis and require[d] [Plaintiff's] in-person support for a variety of tasks.” Id. Second, the accommodation would “cause disruption to City operations” because Plaintiff “support[ed] coverage of the front desk . . . which require[d] [her] to be in the office”; Plaintiff was “responsible for opening department mail on a daily basis, as well as preparing and processing outgoing mail”; and Plaintiff's position required her “to file documents with other public entities, . . . prepar[e] administrative records, scan[], [and] provid[e] logistical support for in-person meetings.” Id. Third, Plaintiff was a “Disaster Services Worker[,] meaning that at any time during an emergency in Emeryville [Plaintiff] may [have] be[en] called upon to report in person at a City facility.” Id. Raver also notified Plaintiff that she would be placed on temporary leave with pay until the City completed its evaluation of her request. Id.

Plaintiff replied to Raver on December 17, 2021, and described the conflict between the policy and her beliefs as she did in her original request, as follows:

Participating in vaccination or testing activities are medical experiments that violate my sincerely held religious belief. To subject my body to any activity that violates the teaching of scripture is a sin against God. The Word of God is the absolute sovereign authority in my life. I Timothy 1:7 says, “God has not given us the spirit of fear but of love, and power and a sound mind.” (KJV) The Bible makes clear that as a child of God, I wrestle not against flesh and blood but against principalities, powers, rulers of the darkness of this world and spiritual wickedness in high places. It is my strongly held religious belief and conviction that these medical experiments and requirements are driven by spiritual wickedness in high places. I am not to submit to the “spirit of fear” because that is idolatry and a sin against God.

ECF No. 1-11 at 2; see ECF No. 1 ¶ 35. On January 3, 2022, Raver replied with a final directive requiring Plaintiff comply with the Policy. See ECF No. 1-12. Raver wrote,

While you have reiterated it is your belief that COVID-19 testing and vaccination is a “medical experiment” and “driven by wickedness in high places” you repeatedly failed to answer specific questions the City asked in order to better understand the nature of your belief and the sincerity with which you hold such beliefs. For example, in its last two communications with you, the City asked you whether your religious belief objects to the use of all medical testing, and if not, why your objection is limited to the testing for COVID-19. You refused to provide responses to these questions, and others that the City has posed in order to understand the conflict between your religious beliefs and the Policy.

Id. at 3; see ECF No. 1 ¶ 36. Raver relayed the City's conclusion that the information Plaintiff previously provided “describes a secular, medical/personal belief that does not qualify as a sincerely held religious belief as defined by the law.” ECF No. 1-12 at 3. Raver reiterated that Plaintiff's essential job duties required her to work in person and that saliva testing was the accommodation the City could offer. Id. at 3-4. Raver further explained the City's determination that “there is no accommodation that the City could provide . . . that would effectively resolve the conflict between your religious beliefs and the City's requirement that employees be vaccinated or submit to weekly testing.” Id. at 4. The directive gave Plaintiff until January 10, 2022 to comply with the Policy and provided that, if Plaintiff failed to comply, the City would “commence actions to separate [Plaintiff] from employment with the City.” Id. at 4.

On January 7, 2022, Plaintiff replied with an inquiry into the identities of the individuals who had chosen to deny her accommodation, as well as their qualifications for assessing her religious beliefs. ECF No. 1-13 at 3. On January 26, 2022, the City Manager sent Plaintiff a notice of termination. ECF No. 1-14. The City Manager emphasized that the City “ha[d] a duty to provide and maintain a safe and healthy working environment, which is why it mandated employees to either vaccinate against COVID-19 or submit to weekly testing.” Id. at 3. The City Manager also wrote that Plaintiff's “failure to comply with the City's [Policy] and directive constitute[d] insubordination and the willful and persistent violation of the City's policies and regulations.” Id.

Plaintiff obtained a right to sue letter from the U.S. Equal Employment Opportunity Commission on September 30, 2022. ECF No. 1-15 at 2. Plaintiff then filed suit in this Court on December 14, 2022, naming the City, Raver, and Lori Elefant as Defendants. ECF No. 1. Plaintiff alleges that she was terminated because “she refused to surrender and violate her own religious beliefs.” ECF No. 1 ¶ 42. She brings claims for (1) violation of California's Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12900 et seq.^[1]; (2) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.^[2]; (3) slander pursuant to Cal. Civ. Code § 46, (4) violations of the Free Exercise Clause of the First Amendment pursuant to 42 U.S.C. § 1983; (5) violation of the Free Exercise Clause of Article I, Section 4 of the California Constitution; and (6) violations of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. ECF No. 1 ¶¶ 42-95. Plaintiff seeks damages and injunctive relief. Id. at 16. Plaintiff is proceeding pro se.

II. JURISDICTION

The Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.

III. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Dismissal “is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “[A] complaint must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Factual allegations need not be...