Moore v. Health Care & Rehab. Servs. of Se. Vt.

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Leah Moore v. Health Care and Rehabilitation Services of Southeastern Vermont, Inc.

No. 24-cv-031-SE-TSM

United States District Court, D. New Hampshire

September 25, 2024

Opinion No. 2024 DNH 083

ORDER

SAMANTHA D. ELLIOTT, UNITED STATES DISTRICT JUDGE.

Health Care and Rehabilitation Services of Southeastern Vermont Inc. (“HCRS”) terminated Leah Moore in 2021 when she did not comply with its mandatory COVID-19 vaccination policy. Moore alleges that HCRS violated her rights under state and federal statute by discriminating against her based on her religion, failing to accommodate her religious beliefs, and retaliating against her. She also alleges that HCRS wrongfully terminated her under New Hampshire common law because of her religious beliefs and medical concerns and because she refused the vaccine. HCRS moves to dismiss the complaint under Rule 12(b)(6) on the basis that it fails to state a claim.

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must make factual allegations sufficient 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)). A claim is facially plausible if it pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

To test a complaint's sufficiency, the court must first identify and disregard statements that “merely offer ‘legal conclusions couched as fact' or ‘threadbare recitals of the elements of a cause of action.'” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678 (alterations omitted)). Second, the court must credit as true all nonconclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. See id. Background

Consistent with this standard of review, the following facts taken from the complaint are assumed true. Moore worked for HCRS from March 2014 until December 2021. At the time of her termination, she worked as a Billing Specialist and had worked remotely from her home for much of her last two years with the company. In July 2021, HCRS asked Moore to return to HCRS's office three days per week and work remotely only two days per week. Moore kept that schedule from July 2021 until her last two or three weeks with HCRS, during which she exclusively worked remotely again.

During the COVID-19 pandemic, HCRS required Moore to follow certain protocols. On the days that she went into the office, Moore wore a mask and took her temperature, logging the results into HCRS's website. HCRS also required her to take a weekly COVID-19 test, regardless of whether she went into the office. On or about October 15, 2021, HCRS issued a mandatory COVID-19 vaccination policy. Under the policy, HCRS would terminate any employee who was not vaccinated against COVID-19 by December 1, 2021, and had not received a medical or religious exemption.

Moore “objected to the vaccin[e] on the basis of religion, in that she objected to it since aborted fetus cell lines were used in the development of the vaccine.” Doc. no. 1-1, ¶ 11. But she “was primarily concerned [about being vaccinated] for medical reasons” because of her history of pneumonia and pleurisy, as well as her “complicated” family medical history. Id. Despite her concerns, Moore did not request a medical or religious exemption.

Moore believed that making a request would be futile for two reasons. First, Ms. Reynolds,^[1] a Medical Nurse Supervisor, told Moore that HCRS would deny any exemption request. Specifically, Reynolds stated that she had attended the HCRS Senior Leadership Team meetings during which the team discussed the vaccination policy. Reynolds told Moore that, although HCRS would allow employees to file religious and medical exemption requests, “even if the staff applies for the exemptions, no one will be granted one.” Doc. no. 1-1, ¶ 20. Second, Moore was aware that HCRS had denied at least five medical or religious exemption requests submitted by other HCRS employees.

Therefore, Moore did not apply for an exemption because she determined that applying for one would be futile. She also wanted to avoid an “interrogation process” without any chance of success. Id., ¶ 21. Although Moore did not officially apply for an exemption, she did tell her supervisor, Heather Lockwood, that she wanted a religious exemption to the vaccination policy.

On November 18, 2021, HCRS informed Moore that it would terminate her employment on November 30, 2021, because she refused to be vaccinated in accordance with the vaccination policy. HCRS fired Moore effective December 1, 2021.

Discussion

Moore's complaint includes four counts. The first three counts allege that HCRS violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New Hampshire Revised Statute Annotated (“RSA”) § 354-A by discriminating against Moore on the basis of her religion: religious discrimination/harassment/hostile work environment (Count I); religious discrimination/failure to accommodate (Count II); and retaliation based on religion (Count III). Count IV asserts a claim for wrongful discharge. Again, HCRS moves to dismiss the complaint in its entirety. Moore objects.

I. Title VII Claims

“Because the New Hampshire Supreme Court relies on Title VII cases to analyze claims under RSA 354-A, the court will address [Moore's] state and federal claims together using the Title VII standard.” Hubbard v. Tyco Integrated Cable Sys., Inc., 985 F.Supp.2d 207, 218 (D.N.H. 2013) (quotation and alteration omitted). Title VII prohibits an employer from “discharg[ing] any individual, or otherwise [ ] discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion.” 42 U.S.C. § 2000e-2(a). A plaintiff can assert a religious discrimination claim under Title VII based on different theories, and “each of these theories of employment discrimination requires proof of different elements.” Equal Emp. Opportunity Comm'n v. Baystate Med. Ctr., Inc., No. 3:16-CV-30086-MGM, 2017 WL 4883453, at *2 (D. Mass. Oct. 30, 2017) (citing Sanchez-Rodriguez v. AT & T Mobility Puerto Rico, Inc., 673 F.3d 1, 12-13 (1st Cir. 2012) and Kosereis v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003)).

A. Count I - Harassment and Hostile Work Environment

In Count I, Moore alleges that HCRS created a hostile work environment because of her religion.

To make out a viable [Title VII hostile work environment] claim based on religion, the plaintiff must establish that: (1) she is a member of a protected class; (2) she was subject to uninvited harassment; (3) the offending conduct was because of her religion; (4) the harassment was severe and pervasive; (5) the offending conduct was both objectively and subjectively offensive and (where employer liability is sought); (6) there was a basis for such liability.

Rivera v. P.R. Aqueduct and Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003) (emphasis omitted).

“In assessing whether conduct is severe or pervasive and both objectively and subjectively offensive, [a court] evaluate[s] ‘the severity of the conduct, its frequency, whether it is physically threatening or not, and whether it interfered with the victim's work performance.” Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 217 (1st Cir. 2016) (internal quotations and citations omitted). Whether alleged harassment “was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment” is a question typically left to the jury. Rosario v. Dep't of Army, 607 F.3d 241, 247 (1st Cir. 2010). But Moore must first plausibly allege that she was harassed at all. She cannot do so by relying on conclusory statements. Rae v. Woburn Public Schools, 113 F.4th 86, 111 (1st Cir. 2024). Instead, “to clear the plausibility hurdle, a complaint must contain enough facts to raise a reasonable expectation that discovery will reveal evidence sufficient to flesh out a viable claim.” Id. (quotations and alterations omitted).

Moore asserts in her complaint that “she was treated differently than her co-workers, ostracized, and experienced a hostile environment, which no reasonable person should be forced to endure.” Doc. no. 1-1, ¶ 57. However, her complaint contains no factual allegations to support those conclusory assertions. Indeed, Moore does not allege that she was harassed at all, much less that she suffered harassment that could be considered severe and pervasive.

In her objection to HCRS's motion to dismiss, Moore states that she has alleged sufficient facts to show that she was harassed and subjected to a hostile work environment, including “being aware of interrogations of other employees” when they applied for exemptions to the vaccination policy and “being told it did not matter what she put in an exemption request because they were all being denied.” Doc. no. 6-1 at 10. She offers no argument or case law to support her contention that those facts - which essentially amount to her awareness of the application process for an exemption to the vaccination policy and that HCRS would not grant her an exemption if she applied for one - give rise to a Title VII or RSA 354-A hostile work environment claim. The court grants HCRS's motion to dismiss as it pertains to Moore's claim for hostile work environment.

The complaint is not a portrait of clarity and the briefing on the motion to dismiss continues to confuse the legal theories underpinning each count, especially Count I. The court...