Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.1 Page 1 of 14
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`
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`David P. Strauss (SBN 96874)
`ds@dstrausslaw.com
`THE LAW OFFICE OF DAVID P. STRAUSS
`501 West Broadway, Ste. 800
`San Diego, CA 92101
`Telephone: 619-237-5300
`Facsimile: 619-237-5311
`
`
`Attorneys for Plaintiff, KELLY R. BRENNER
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`
`
`
`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`KELLY R. BRENNER, an individual,
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`XERIS PHARMACEUTICALS, INC., a
`Delaware Corporation; and DOES 1
`through 10, inclusive,
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`
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` Case No.
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`COMPLAINT FOR VIOLATIONS OF
`THE CALIFORNIA FAIR
`EMPLOYMENT AND HOUSING ACT
`[Cal. Govt. Code § 12900 et seq.] AND
`CONSTRUCTIVE TERMINATION IN
`VIOLATION OF PUBLIC POLICY
`
`
`Plaintiff,
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`v.
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`Defendants.
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`COMPLAINT FOR DAMAGES
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`'21
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`CV2094
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`LL
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`AJB
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.2 Page 2 of 14
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`Plaintiff KELLY R. BRENNER (“Mrs. Brenner” or “Plaintiff”), alleges:
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`COMPLAINT
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`1. Mrs. Brenner brings this action against Xeris Pharmaceuticals, Inc.
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`(“Xeris” or “Defendant”) a pharmaceutical company incorporated in Delaware. This
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`action is based, in part, on violations of the California Fair Employment and Housing
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`Act, Cal. Govt. Code § 12900, et seq. (“FEHA”).
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`2.
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`The gravamen of this Complaint is that Defendant engaged in religious
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`discrimination and failed to provide Mrs. Brenner a reasonable accommodation
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`following Defendant’s granting of Mrs. Brenner’s religious exemption to Defendant’s
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`mandatory employee vaccination policy. Defendant previously granted Mrs. Brenner
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`a reasonable accommodation for a medical exemption but later refused to provide the
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`very same accommodation for her religious exemption.
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`JURISDICTION & VENUE
`This Court has original jurisdiction over this action pursuant to 28
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`3.
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`U.S.C. § 1332, in that the matter in controversy exceeds the value of $75,000,
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`exclusive of interest and costs and is between citizens of different States. This court
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`has supplemental jurisdiction over Plaintiff's related claims arising under state law
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`pursuant to 28 U.S.C. § 1367(a).
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`4.
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`Venue is proper in the Southern District of California under 42 U.S.C. §
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`2000e5(f)(3), in that the Plaintiff resides within the Southern District; the Defendant
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`maintains significant operations within the Southern District; and the location where
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`the alleged unlawful employment practices took place is within the Southern District.
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`PARTIES
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`Plaintiff
`At all times relevant herein, Plaintiff resides in San Diego County and
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`5.
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`was an employee of Defendant.
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.3 Page 3 of 14
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`Defendant
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`6.
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`Upon information and belief, Defendant is a Delaware corporation,
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`operating throughout the United States and having its corporate headquarters in
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`Chicago, Illinois. At the time of the events giving rise to this Complaint, Mrs.
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`Brenner was employed by Defendant as a Territory Business Manager servicing
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`accounts in San Diego County and in surrounding jurisdictions.
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`STATEMENT OF FACTS
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`7. Mrs. Brenner was employed by Defendant for approximately five
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`months. At all times during her employment, Mrs. Brenner performed at an
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`exceptional level with frequent praise from her manager.
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`8.
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`On August 9, 2021, Xeris’s Chief Executive Officer, Paul Edick, sent an
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`email to all employees notifying that as of September 17, 2021, all employees are
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`required to have a COVID-19 vaccination. (See Exhibit A.) The stated purpose of
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`Defendant’s vaccine mandate was to, “protect the health and safety of our employees,
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`families [and] customers….” According to Defendant’s CEO, each employee’s
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`“personal choice” has to take a “back seat” to the best interests of the company.
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`Defendant Grants Mrs. Brenner’s Medical Exemption and
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`Provides a Reasonable Accommodation
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`9.
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`On August 11, 2021, Mrs. Brenner tested positive for COVID-19 and
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`notified Defendant that same day. Following the positive test, Mrs. Brenner
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`requested Defendant provide her with a reasonable accommodation to the vaccine
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`mandate via a medical exemption. (See Exhibit B.) Defendant approved Mrs.
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`Brenner’s exemption request on September 7, 2021, approximately one month after
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`she contracted COVID-19. (See Exhibit C.)
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`10. Pursuant to the medical exemption, Defendant allowed Mrs. Brenner to
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`continue to work and perform her job duties (without a COVID-19 vaccine), as
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`normal, subject to the following conditions: (1) access to Mrs. Brenner’s key
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`accounts were not disrupted due to her vaccination status; (2) Mrs. Brenner wear a
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.4 Page 4 of 14
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`face mask during business visitations; (3) Mrs. Brenner submit to weekly COVID-19
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`testing; (4) Mrs. Brenner complete a health screening questionnaire each day that she
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`works outside the home; and (5) Mrs. Brenner stay at home if she has any symptoms
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`related to COVID-19.
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`11. Defendant’s medical exemption approval explicitly recognized that as an
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`unvaccinated employee Mrs. Brenner did not “pose a direct threat to [herself] or
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`others in the workplace” and that the accommodation provided would not “create an
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`undue hardship for Xeris Pharmaceuticals” otherwise, the exemption accommodation
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`would not be provided. In short, Defendant determined that even though Mrs.
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`Brenner was not vaccinated, it was safe and reasonable for her to work with these
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`accommodations.
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`12. For approximately eight weeks, Mrs. Brenner continued to perform all of
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`her job duties, worked in the field, visited doctor offices and followed all of the
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`accommodation requirements without any issues or concerns. At no time was Mrs.
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`Brenner denied access to a medical office or otherwise prohibited from performing
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`her job duties as a result of her vaccination status.
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`Defendant Grants Mrs. Brenner’s Religious Exemption
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`but Fails to Offer a Reasonable Accommodation
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`13. On November 10, 2021, one day before her medical exemption was set
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`to expire, Mrs. Brenner submitted a request for accommodation due to her religious
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`objection to the COVID-19 vaccine and informed Defendant that she was still in
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`possession of COVID-19 antibody protection. (See Exhibit D.)
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`14. Defendant’s Vice President of Human Resources, Kendal J. Korte,
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`called Mrs. Brenner on November 12, 2021, to discuss the matter. During this phone
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`call, Ms. Korte informed Mrs. Brenner that she would not receive the same
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`reasonable accommodations under a religious exemption as she did under her
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`previously approved medical exemption because: (1) Defendant is a contractor of the
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`federal government and that federal law requires all contractors to be vaccinated; and
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.5 Page 5 of 14
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`(2) Defendant treats medical exemption requests differently from religious
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`exemptions, citing that the latter “is a personal choice.” Ms. Korte told Mrs. Brenner
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`that Mrs. Brenner would receive a formal letter regarding the religious exemption
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`request shortly. Mrs. Brenner received the letter a few minutes later.
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`15. Defendant’s November 12, 2021, letter granted Mrs. Brenner’s religious
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`exemption request to Defendant’s mandatory employee vaccine mandate. (See
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`Exhibit E.) Despite granting her religious exemption, however, Defendant did not
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`allow for testing, masking and other reasonable accommodations as Defendant did in
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`connection with Mrs. Brenner’s previously granted medical exemption.
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`16. Defendant’s November 12, 2021, letter stated that Mrs. Brenner will be
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`placed on unpaid leave starting November 16, 2021, and that she is prohibited from
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`returning to work (or getting paid) until such time as she is fully vaccinated, or the
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`company ends its vaccination requirement.
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`17. Defendant’s November 12, 2021, letter stated that Defendant is placing
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`Mrs. Brenner on unpaid leave “based on the nature of your current position and the
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`direct threat of harm you pose to other employees, customers and vendors when you
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`travel for Xeris business by not being vaccinated.”
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`18. Defendant’s November 12, 2021, letter fails to explain why, under a
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`religious exemption, Mrs. Brenner presents as a “direct threat of harm” but under a
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`medical exemption granted September 7, 2021, she presented no such risk.
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`19. On November 13, 2021, Mrs. Brenner informed Defendant that it failed
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`to provide her with a “reasonable accommodation” under the California Fair
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`Employment and Housing Act, Cal. Govt. Code § 12900, et seq., and that no “undue
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`hardship” would result, especially given that reasonable accommodations (short of
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`unpaid leave) were previously provided to Mrs. Brenner under a medical exemption
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`and are explicitly recognized as reasonable in the California Public Health Order
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`dated August 5, 2021. (See Exhibit F.) Mrs. Brenner also requested Defendant to
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`reconsider its decision to place her on unpaid leave and, instead, allow her to continue
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.6 Page 6 of 14
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`working in the field, as normal, with the same reasonable accommodations provided
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`under the previously approved medical exemption.
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`20. On November 15, 2021, Defendant notified Mrs. Brenner that it will not
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`grant the same reasonable accommodations for her approved religious exemption that
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`it did for her medical exemption and that Mrs. Brenner will be placed on unpaid leave
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`starting November 16, 2021. (See Exhibit G.)
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`21.
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`In sum, Defendant has engaged in religious discrimination by failing to
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`offer the same reasonable accommodations provided under Mrs. Brenner’s medical
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`exemption in connection to her religious exemption.
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`22. Mrs. Brenner’s income and other benefits ceased immediately upon
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`being placed on unpaid leave, placing a large burden on her to support her family.
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`On December 14, 2021, Mrs. Brenner obtained a “Right to Sue” letter from the
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`California Department of Fair Employment and Housing (DFEH). (See Exhibit H.)
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`FIRST CAUSE OF ACTION
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`Discrimination on the Basis of Religious Creed
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`in Violation of the California Fair Employment and Housing Act
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`(Cal. Govt. Code § 12900, et seq.)
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`23. Mrs. Brenner hereby realleges and incorporates by reference the
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`preceding paragraphs, as though fully set forth herein.
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`24. Pursuant to the FEHA it is an unlawful employment practice for an
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`employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to
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`discriminate against any individual with respect to her compensation, terms,
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`conditions, or privileges of employment, because of such individual’s race, color,
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`religious creed, sex, or national origin; or (2) to limit, segregate, or classify its
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`employees or applicants for employment in any way which would deprive or tend to
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`deprive any individual of employment opportunities or otherwise adversely affect her
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`status as an employee, because of such individual’s race, color, religious creed, sex,
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`or national origin.
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.7 Page 7 of 14
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`25. Mrs. Brenner was at all times relevant herein an employee and applicant
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`covered by the FEHA, prohibiting discrimination in employment on the basis of
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`religious creed. Defendant was at all times herein an employer for purposes of the
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`FEHA.
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`26. Mrs. Brenner had a deeply and sincerely held religious objection to
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`receiving a COVID-19 vaccination, and Defendant issued her a religious exemption
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`recognizing that sincerely held belief.
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`27. Although she received a religious exemption, Defendant discriminated
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`against Mrs. Brenner by placing her on unpaid leave and rejecting several other
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`reasonable accommodations which were less severe, including but not limited to the
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`reasonable accommodations Defendant provided to Mrs. Brenner under her medical
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`exemption.
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`28. The prima facie case established, the burden shifts to Defendant to show
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`that it offered Mrs. Brenner a reasonable accommodation or if it did not, that doing so
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`would have resulted in undue hardship.
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`29. Defendant granted Mrs. Brenner a reasonable accommodation for a
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`medical exemption but refused to provide the very same accommodation for her
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`religious exemption.
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`30. There is no explanation for Defendant’s actions other than intentional
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`religious discrimination because the alleged “harm” Mrs. Brenner posed as an
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`unvaccinated employee working under a medical accommodation on November 10,
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`2021, is identical to the harm Mrs. Brenner posed under a religious accommodation
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`on November 11, 2021. Since Mrs. Brenner’s risk profile did not change, she should
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`have been provided the same accommodations for the religious exemption as the
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`medical exemption.
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`31. Defendant’s “undue hardship” defense will fail as a matter of law based
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`on the plain language of Defendant’s exemption approval form provided to Mrs.
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`Brenner dated September 7, 2021. (See Exhibit C.) Defendant’s approval form states
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.8 Page 8 of 14
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`that accommodations would not be granted if they “create an undue hardship for
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`Xeris” or if an employee poses a “direct threat” to the workplace. By granting Mrs.
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`Brenner accommodations for masking and COVID-19 testing, Defendant expressly
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`admitted that these accommodations were reasonable and did not present an undue
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`hardship or a direct threat.
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`32. Defendant’s claim of undue hardship is also belied by Defendant
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`allowing Mrs. Brenner to work for eight weeks in the field while wearing a mask and
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`submitting to weekly testing per the medical accommodation without any issue or
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`problem.
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`33. Defendant’s claim of undue hardship is further belied by California’s
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`Public Health Order dated August 5, 2021, which permits unvaccinated doctors and
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`nurses to work in California hospitals and health care facilities if they submit to
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`COVID-19 testing and wear a mask. If it is reasonable to allow doctors and nurses to
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`work under these accommodations, then it is reasonable to allow Mrs. Brenner to
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`work under them as well.
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`34. Mrs. Brenner told Defendant she was being penalized for her religious
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`beliefs, but Defendant refused to address these complaints. Mrs. Brenner was placed
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`on unpaid leave after asserting her religious rights under the FEHA. She was placed
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`on unpaid leave for engaging in protected activity, specifically requesting a religious
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`accommodation under the FEHA and seeking reasonable accommodations
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`thereunder.
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`35. Mrs. Brenner’s religious beliefs and practices were a motivating factor in
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`her being placed on unpaid leave.
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`36. Mrs. Brenner suffered significant damages as a result of Defendant’s
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`unlawful discriminatory actions, including emotional distress, past and future lost
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`wages and benefits, and the costs of bringing this action.
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`37. Mrs. Brenner is entitled to backpay, front pay, compensatory damages,
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`punitive damages, attorney’s fees pursuant to Government Code Section 12965(b),
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`COMPLAINT FOR DAMAGES
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.9 Page 9 of 14
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`costs of suit, a declaration that Defendant violated her rights under the FEHA, and an
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`injunction preventing Defendant from enforcing its discriminatory policies.
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`38. Defendant’s above-described acts were willful, intentional and malicious
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`and done with the intent to vex, injure and annoy Plaintiff and warrant the imposition
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`of exemplary and punitive damages in an amount sufficient to punish Defendant and
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`to deter others from engaging in similar conduct. The above-described acts were
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`authorized, ratified, or committed by an officer, director and/or managing agent.
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`39. Mrs. Brenner is entitled to further relief as more fully set forth below in
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`her Prayer for Relief.
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`SECOND CAUSE OF ACTION
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`Failure to Provide Religious Accommodation in Violation of FEHA
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`(Cal. Govt. Code § 12900, et seq.)
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`40. Plaintiff hereby incorporates and realleges the preceding paragraphs, as
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`though fully set forth herein.
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`41. The FEHA makes it an unlawful employment practice to fail or refuse to
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`reasonably accommodate the religious beliefs and practices of an employee or
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`prospective employee.
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`42. Mrs. Brenner suffered significant damages as a result of Defendant’s
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`unlawful discriminatory actions, including emotional distress, past and future lost
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`wages and benefits, and the costs of bringing this action.
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`43. Defendant intentionally violated Mrs. Brenner’s rights under the FEHA
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`with malice or reckless indifference.
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`44. Plaintiff is entitled to further relief as more fully set forth below in her
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`Prayer for Relief.
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`THIRD CAUSE OF ACTION
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`(Retaliation in Violation of Government Code Section 12940, et seq.)
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`45. Plaintiff re-alleges and incorporates herein by reference each and every
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`allegation in the preceding paragraphs.
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`46. Defendant is an employer as defined by Government Code section
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`12940, et seq.
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`47. The FEHA makes it unlawful for an employer to retaliate against an
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`employee for exercising any rights protected by the FEHA.
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`48. Defendant retaliated against Plaintiff because she engaged in conduct
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`protected under the FEHA, including but not limited to, requesting an identical
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`accommodation for her sincerely held religious beliefs as had been previously
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`granted due to her medical condition. Defendant deprived Plaintiff of certain
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`privileges and benefits of her employment, including but not limited to depriving her
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`of earned compensation and constructively terminating her employment, in retaliation
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`for Plaintiff’s exercise of her rights that are protected under the FEHA.
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`49. As a direct and proximate result of Defendant’s acts as alleged above,
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`Plaintiff has incurred compensatory damages, including lost past and future earnings
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`and other economic damages, and has necessarily expended sums in the treatment of
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`emotional injuries, in an amount to be ascertained at the time of trial.
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`FOURTH CAUSE OF ACTION
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`Failure to Prevent Discrimination in Violation of FEHA
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`(Govt. Code §12940, et seq.)
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`50. Plaintiff realleges and incorporates by reference each and every
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`allegation contained in the preceding paragraphs as though fully set forth herein.
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`51. California Government Code section 12940(k) makes it an unlawful
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`employment practice for an employer to “fail to take all reasonable steps to prevent
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`discrimination and harassment from occurring.”
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`52. Defendant violated this provision by failing to prevent discrimination,
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`including by constructively terminating Plaintiff’s employment on the basis of her
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`religious exemption and by ignoring FEHA law and regulations by refusing to
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`consider a reasonable accommodation for the sincerely held religious beliefs of
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`employees otherwise capable of performing their job duties.
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.11 Page 11 of 14
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`53. As a direct, foreseeable, and proximate result of Defendant’s
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`discriminatory acts, Plaintiff has suffered and continues to suffer substantial
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`economic and non-economic losses in earnings and job benefits, and has suffered and
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`continues to suffer humiliation, embarrassment, mental and emotional distress, and
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`discomfort, all to Plaintiff’s damage in an amount to be proven at trial, but which are
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`in excess of the minimum jurisdiction of this court.
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`54. Defendant’s above-described acts were willful, intentional and malicious
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`and done with the intent to vex, injure and annoy Plaintiff and warrant the imposition
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`of exemplary and punitive damages in an amount sufficient to punish Defendant and
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`to deter others from engaging in similar conduct. The above-described acts were
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`authorized, ratified, or committed by an officer, director and/or managing agent.
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`FIFTH CAUSE OF ACTION
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`Constructive Wrongful Termination in Violation of Public Policy
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`55. Plaintiff realleges and incorporates by reference each and every
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`allegation contained in the preceding paragraphs as though fully set forth herein.
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`56. Mrs. Brenner was an employee of Defendant.
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`57. Defendant constructively terminated Plaintiff’s employment on or about
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`November 17, 2021, by placing her on indefinite unpaid leave.
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`58. California has a fundamental, substantial, and well-established public
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`policy against discrimination in the workplace on the basis of religion, and other
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`classes codified in California Government Code section 12940, et seq.
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`59. Religious discrimination in employment may support a claim of tortious
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`discharge in contravention of public policy. The California Constitution, Article 1,
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`Section 8 states that, “A person may not be disqualified from entering or pursuing a
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`business, profession, vocation, or employment because of sex, race, creed, color, or
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`national or ethnic origin.”
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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.12 Page 12 of 14
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`60. Plaintiff is informed and believes and thereon alleges that Defendant was
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`substantially motivated to terminate her employment on the basis of her religion as
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`described herein.
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`61. Defendant’s unlawful discharge of Plaintiff has caused Plaintiff
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`economic and noneconomic harm in an amount to be proven at trial, but which are in
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`excess of the minimum jurisdiction of this Court. Plaintiff’s damages include, but are
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`not limited to, loss of earnings and benefits, humiliation, embarrassment, mental and
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`emotional distress and discomfort.
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`62. Defendant’s above-described acts were willful, intentional and malicious
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`and done with the intent to vex, injure and annoy Plaintiff and warrant the imposition
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`of exemplary and punitive damages in an amount sufficient to punish Defendant and
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`to deter others from engaging in similar conduct. The above-described acts were
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`authorized, ratified, or committed by an officer, director and/or managing agent.
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`PRAYER FOR RELIEF
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`WHEREFORE, MRS. BRENNER respectfully prays this Court grant relief as
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`follows:
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`A. Award Plaintiff backpay, including past loss of wages and benefits, plus
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`interest;
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`B. Award Plaintiff her front pay, including future wages and benefits;
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`C. Award Plaintiff other and further compensatory damages in an amount
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`according to proof;
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`D. Award Plaintiff noneconomic damages, including but not limited to
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`mental suffering;
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`E. Award to Plaintiff reasonable attorney’s fees and costs of suit pursuant to
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`California Government Code section 12965(b) for her first three causes of action;
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`F. Award Plaintiff punitive damages;
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`G. Enjoin Defendant from enforcing its discriminatory policies;
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`H. Declare that Defendant violated the FEHA; and
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`- 11 -
`COMPLAINT FOR DAMAGES
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`

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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.13 Page 13 of 14
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`I.
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`Grant Plaintiff such additional or alternative relief as the Court deems just
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`and proper.
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`DEMAND FOR JURY TRIAL
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`Plaintiff hereby requests a trial by jury in this case.
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`Dated: December 16, 2021 Respectfully Submitted,
`THE LAW OFFICE OF DAVID P. STRAUSS
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`By: /s/David P. Strauss
` Attorneys for Plaintiff, KELLY R. BRENNER
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`- 12 -
`COMPLAINT FOR DAMAGES
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`

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`Case 3:21-cv-02094-AJB-LL Document 1 Filed 12/16/21 PageID.14 Page 14 of 14
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`EXHIBITS TO COMPLAINT
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`Exhibit Description
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`A
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`B
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`D
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`August 9, 2021 - Email notifying Xeris employees that as
`of September 17, 2021, all employees are required to have
`a COVID-19 vaccination.
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`August 30, 2021 - Plaintiff’s Request for Accommodation:
`Medical Exemption from Vaccination following positive
`COVID-19 test.
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`September 7, 2021 - Defendant approved Plaintiff’s
`Request for Accommodation: Medical Exemption from
`Vaccination.
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`Pg. Nos.
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`1-3
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`4-6
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`7-10
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`November 10, 2021 - Plaintiff’s request for a religious
`accommodation from Defendant’s COVID-19 vaccination
`policy.
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`11-14
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`November 12, 2021 - Defendant’s letter granting Plaintiff’s
`religious exemption request and notifying Plaintiff that she
`will be placed on temporary, unpaid personal leave of
`absence.
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`15-16
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`November 13, 2021 – Letter from Plaintiff attaching
`California Public Health Order dated August 5, 2021.
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`November 15, 2021 – Email from Defendant informing
`Plaintiff that she will be placed on unpaid leave starting
`November 16, 2021.
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`December 14, 2021 - “Right to Sue” letter from the
`California Department of Fair Employment and Housing
`(DFEH).
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`17-32
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`33-34
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`35-37
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`- 13 -
`COMPLAINT FOR DAMAGES
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`