Case 1:22-cv-01392-RGA Document 32 Filed 01/25/24 Page 1 of 12 PageID #: 321
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BETH A. MCDOWELL,
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`Plaintiff,
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`V.
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`BA YHEAL TH MEDICAL CENTER, INC.,
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`Defendant.
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`Civil Action No. 22-1392-RGA
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`MEMORANDUM OPINION
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`Gary E. Junge (argued), SCHMITTINGER & RODRIGUEZ, P.A., Dover, DE,
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`Attorney for Plaintiff.
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`Stacy A. Scrivani, Alexis R. Gambale, STEVENS & LEE, P.C., Wilmington, DE; Lisa M.
`Scidurlo, STEVENS & LEE, P.C., King of Prussia, PA; Michael M. Greenfield (argued), Sasha
`A. Phillips, STEVENS & LEE, P.C., Philadelphia, PA; Theresa M. Zechman, STEVENS &
`LEE, P.C., Lancaster, PA,
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`Attorneys for Defendant.
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`January ar, 2024
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`1
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`ANW .sq ti1~
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`Before me is Defendant' s Motion to Dismiss. (D.I. 21). I have considered the parties'
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`briefing. (D.I. 22, 23 , 25). I heard oral argument on January 4, 2024 on a group of cases,
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`including the present action, involving religious discrimination claims with regards to
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`Defendant's COVID-19 vaccine policy. (Hearing Tr.). 1 For the reasons set forth below, this
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`motion is GRANTED in part and DISMISSED as moot in part.
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`I.
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`BACKGROUND
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`This case stems from the COVID-19 pandemic and a healthcare provider' s efforts to
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`respond to government vaccination policy. The First Amended Complaint (D.I. 19) is the
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`operative complaint and alleges the following facts.
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`On August 12, 2021 , Governor John Carney ordered all Delaware state health care
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`employees either to become vaccinated for the COVID-19 virus by September 30, 2021 or to
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`submit to regular testing for the COVID-19 virus. In November 2021 , the Centers for Medicare
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`& Medicaid Services ("CMS") issued a COVID-19 vaccine mandate requiring certain health care
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`facilities, including Defendant, to ensure their staff members were all either vaccinated against
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`COVID-19 or had obtained medical or religious exemptions to taking the vaccine.
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`Pursuant to Defendant's vaccination policy, employees seeking religious exemption
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`requests were required to submit forms explaining the religious beliefs that formed their basis of
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`their objection to the COVID-19 vaccine. (See D.I. 19-1 , Ex. A). Employees could attach
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`additional materials, such as letters from religious leaders, to support their exemption request.
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`(Id.).
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`1 Citations to the transcript of the argument are in the format "Hearing Tr. at_."
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`2
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`Employees who had their religious exemption requests rejected, and continued to refuse
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`the COVID-19 vaccine, were terminated on February 28, 2022. Plaintiff was one of these
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`employees. Plaintiff subsequently filed the present suit raising religious discrimination claims
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`against Defendant under Title VII (Count I) and the Delaware Discrimination in Employment
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`Act ("DDEA") (Count II). See 42 U.S.C. § 2000e; DEL. CODE ANN. tit. 19, § 711. Defendant
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`moves to dismiss Plaintiff's claims pursuant to FED. R. CIV. P. 12(b)(6). (D.I. 21).
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`II. LEGAL STANDARD
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`A. Rule 12(b)(6)
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`Rule 8 requires a complainant to provide "a short and plain statement of the claim
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`showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Rule 12(b)(6) allows the
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`accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule
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`12(b)(6) motion may be granted only if, accepting the well-pleaded allegations in the complaint
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`as true and viewing them in the light most favorable to the complainant, a court concludes that
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`those allegations "could not raise a claim of entitlement to relief." Bell At!. Corp. v. Twombly,
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`550 U.S. 544, 558 (2007).
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`The factual allegations do not have to be detailed, but they must provide more than
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`labels, conclusions, or a "formulaic recitation" of the claim elements. Id. at 555 ("Factual
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`allegations must be enough to raise a right to relief above the speculative level .. . on the
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`assumption that all the allegations in the complaint are true (even if doubtful in fact).").
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`Moreover, there must be sufficient factual matter to state a facially plausible claim to relief.
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facial plausibility standard is satisfied when the
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`complaint's factual content "allows the court to draw the reasonable inference that the defendant
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`is liable for the misconduct alleged." Id. ("Where a complaint pleads facts that are merely
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`consistent with a defendant' s liability, it stops short of the line between possibility and
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`plausibility of entitlement to relief." (internal quotation marks omitted)).
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`B. Failure to Accommodate
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`Title VII makes it unlawful for an employer to discriminate against an employee based on
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`that employee' s religion. 42 U.S.C. § 2000e-2(a)(l). The statute defines "religion" to include
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`"all aspects of religious observance and practice, as well as belief, unless an employer
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`demonstrates that he is unable to reasonably accommodate to an employee's or prospective
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`employee' s religious observance or practice without undue hardship on the conduct of the
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`employer's business." 42 U.S.C. § 2000eG).
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`To establish a prima facie case of religious discrimination under Title VII based on a
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`failure to accommodate theory, an employee must show that (1) the employee "held a sincere
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`religious belief that conflicted with a job requirement," (2) the employee "informed their
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`employer of the conflict," and (3) the employee was "disciplined for failing to comply with the
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`conflicting requirement." Fallon v. Mercy Cath. Med. Ctr. of Se. Pa., 877 F.3d 487, 490 (3d Cir.
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`2017). "Plaintiffs are not required to establish each element to survive a motion to dismiss; they
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`must simply allege sufficient facts to raise a reasonable expectation that discovery will uncover
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`proof of their claims." Finkbeiner v. Geisinger Clinic, 623 F. Supp. 3d 458, 465 (M.D. Pa. 2022)
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`(citing Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)).
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`A district court's inquiry into whether a plaintiff has plausibly plead the first prong of a
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`prima facie religious discrimination claim is limited to determining whether the belief is ( 1)
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`"sincerely held" and (2) religious within the plaintiffs "own scheme of things." Welsh v. United
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`States, 398 U.S. 333, 339 (1970) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).
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`With respect to the first prong of this inquiry, " [ w ]hether a belief is sincerely held is a
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`question of fact. " Geerlings v. Tredyffrin/Easttown Sch. Dist. , 2021 WL 4399672, at *6 (E.D. Pa.
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`Sept. 27, 2021) (citing Seeger, 380 U.S. at 185).
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`With respect to the second prong, determining whether a plaintiffs beliefs are religious
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`"presents a most delicate question." Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981).
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`"[I]t is nonetheless incumbent upon the court to ensure that the alleged beliefs are rooted in a
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`plaintiffs religion and are entitled to the broad protections guaranteed thereunder." Aliano v.
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`Twp. of Maplewood, 2023 WL 4398493 , at *5 (D.N.J. July 7, 2023) (citing Fallon, 877 F.3d at
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`490). "The notion that all of life' s activities can be cloaked with religious significance" cannot
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`transform an otherwise secular idea into a religious belief. Africa, 662 F.2d at 1035. "[T]he very
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`concept of ordered liberty" precludes allowing any individual "a blanket privilege 'to make his
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`own standards on matters of conduct in which society as a whole has important interests."'
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`Africa, 662 F.2d at 1031 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)).
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`The Third Circuit has adopted the three Africa factors to differentiate between views that
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`are "religious in nature" and those that are "essentially political, sociological, or philosophical."
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`Fallon, 877 F.3d at 490-91 (quoting Seeger, 380 U.S. at 164); Africa, 662 F.2d at 1032. A judge
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`must determine whether the beliefs in question ( 1) "address fundamental and ultimate questions
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`having to do with deep and imponderable matters," (2) "are comprehensive in nature," and (3)
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`"are accompanied by certain formal and external signs." Fallon, 877 F.3d at 491 (quoting
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`Africa, 662 F.2d at 1032) (cleaned up).
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`The Africa court tackled the issue of analyzing non-traditional "religious" beliefs or
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`practices by "look[ing] to familiar religions as models in order to ascertain, by comparison,
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`whether the new set of ideas or beliefs is confronting the same concerns, or serving the same
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`purposes, as unquestioned and accepted ' religions."' Africa , 662 F.2d at 1032 (quoting Malnak
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`v. Yogi, 592 F.2d 197, 205 (3d Cir. 1979) (Adams, J., concurring)); Fallon, 877 F.3d at 491
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`( describing the process as considering "how a belief may occupy a place parallel to that filled by
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`God in traditionally religious persons."). The Africa factors were adopted as "three 'useful
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`indicia' to determine the existence of a religion" pursuant to this "definition by analogy"
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`approach. Africa, 662 F.2d at 1032. Their applicability to a person who professes a more widely
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`recognized, "traditional" religion is a little less obvious.2 However, because individuals cannot
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`"cloak" all personal beliefs "with religious significance," a court must still scrutinize whether a
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`sincerely held belief, asserted by someone claiming a recognized religion, is sufficiently
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`connected to their religion. Id. at 1035; see Griffin v. Massachusetts Dep't of Revenue, 2023 WL
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`4685942, at *5 (D. Mass. July 20, 2023) ("[T]he issue in this case is not whether plaintiff has
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`asserted a plausible claim that she has a personal religious faith. . . . Plaintiff does not claim that
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`she has suffered unlawful discrimination because she believes in God. Rather, she claims that
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`she has suffered unlawful discrimination because she was required to comply with the COVID-
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`19 vaccination requirement. The critical question, therefore, is whether the complaint alleges
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`sufficient plausible facts from which it could be reasonably inferred that being vaccinated against
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`COVID-19 violates a tenet or principle of her religious belief.").
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`Of course, individuals may have religious beliefs which are not widely accepted within
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`their religion. See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div. , 450 U.S. 707, 708 (1981) ("The
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`guarantee of free exercise is not limited to beliefs which are shared by all of the members of a
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`religious sect"); 29 C.F.R. § 1605.1 ("The fact that no religious group espouses such beliefs or
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`2 Plaintiff follows a recognized religion that already meets the three Africa factors. (See D.I. 19 ,r
`13).
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`the fact that the religious group to which the individual professes to belong may not accept such
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`belief will not determine whether the belief is a religious belief of the employee or prospective
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`employee."). Beliefs of this nature would, logically, fail to be sufficiently linked to the
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`individual's claimed religion and need to satisfy the Africa standard to qualify as religious
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`beliefs.
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`"[The DDEA] prohibits employment discrimination in statutory language nearly identical
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`to Title VII." Spady v. Wesley Coll., 2010 WL 3907357, at *3 n. 4 (D. Del. Sept. 29, 2010); see
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`DEL. CODE ANN. tit. 19, § 71 l(b). "[Courts] evaluate plaintiffs' DDEA claims under the same
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`framework used to evaluate Title VII claims." Spady, 2010 WL 3907357, at *3 n. 4 (citing
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`Witcher v. Sodexho, Inc., 247 F. App'x 328, 329 n. 1 (3d Cir. 2007); Hyland v. Smyrna Sch.
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`Dist. , 608 F. App'x 79, 83 n. 5 (3d Cir. 2015) (instructing that "the standards under Title VII and
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`the DDEA are generally the same").
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`C. Disparate Treatment
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`To establish a prima facie case of religious discrimination under Title VII based on a
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`disparate treatment theory, an employee must show that ( 1) the employee is "a member of a
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`protected class," (2) the employee "suffered an adverse employment action," and (3)
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`"nonmembers of the protected class were treated more favorably ." Abramson v. William
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`Paterson Coll. of NJ, 260 F.3d 265, 281- 82 (3d Cir. 2001). Depending on whether the plaintiff
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`proceeds under a pretext or mixed-motive theory, they must ultimately prove that her protected
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`status was either a "motivating" or a "determinative" factor in the employer' s challenged action.
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`Connelly, 809 F .3d at 787-88.
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`III. DISCUSSION
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`A. Failure to Accommodate
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`At this stage of the case, only one issue exists-whether Plaintiff has sufficiently pied
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`that the belief upon which her objection to receiving the COVID-19 vaccine was based is a
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`religious belief. " [T]o adequately plead a ' religious belief,' a plaintiff must allege some facts
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`regarding the nature of her belief system, as well as facts connecting her objection to that belief
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`system." Aliano, 2023 WL 4398493 , at *5 . "In other words, she must demonstrate that her
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`objection arises from a subjective belief that is tied to her belief system which meets the Africa
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`factors ." Id. (citing Africa, 662 F.2d at 1032; Fallon, 877 F.2d at 492-93 (concluding that the
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`plaintiffs "anti-vaccination beliefs are not religious" but providing "[t]his is not to say that anti(cid:173)
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`vaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can,
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`and in those circumstances, they are protected")); see also Brown v. Child. 's Hosp. of Phi/a. , 794
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`F. App'x 226, 227 (3d Cir. 2020) ("[l]t is not sufficient merely to hold a ' sincere opposition to
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`vaccination' ; rather, the individual must show that the ' opposition to vaccination is a religious
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`belief. "' (quoting Fallon, 877 F.3d at 490)); Griffin v. Massachusetts Dep't of Revenue, 2023 WL
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`4685942, at .*5 (D. Mass. July 20, 2023); Ellison v. !nova Health Care Servs. , 2023 WL
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`6038016, at *6 (E.D. Va. Sept. 14, 2023) (A plaintiff should "provide[] sufficient allegations
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`regarding [their] subjective personal beliefs, how those beliefs are related to [their] faith, and
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`how those beliefs form the basis of [their] objection to the COVID-19 vaccination."). Defendant
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`argues that Plaintiffs objection to the vaccine stems from Plaintiffs personal moral code rather
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`than from her religious beliefs.3 (D.I. 22 at 7- 15; D.I. 25 at 5-9).
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`3 Defendant does not challenge Plaintiffs assertion that her religious faith of non-denominational
`Christianity meets the Africa test. Rather, Defendant argues the beliefs on which Plaintiffs
`objection to the vaccine is based are secular beliefs based on Plaintiffs personal moral code, as
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`Plaintiffs exemption form states that "[her] body is the temple of the Holy Spirit who
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`lives within [her]" and that she believes "that God wants [her] to protect and purify this body
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`(His temple) not to cause it any harm or contamination, nor do anything to shorten[ its] life
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`expectancy." (D.I. 19-1 , Ex. A at 4 of 6 (citing 1 Corinthians 3: 16-17 ("Don't you know that
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`you yourselves are God's temple and that God's Spirit dwells in your midst? If anyone destroys
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`God's temple, God will destroy that person; for God's temple is sacred, and you together are that
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`temple."); 1 Corinthians 6:19-20 ("Do you not know that your body is a temple of the Holy
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`Spirit, who is in you, whom you have received from God? You are not your own; you were
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`bought at a price. Therefore honor God with your body."); 2 Corinthians 7:1 ("Therefore, since
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`we have these promises, dear friends, let us purify ourselves from everything that contaminates
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`body and spirit, perfecting holiness out ofreverence for God."))). Plaintiff asserts "that by
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`receiving the Covid-19 vaccination, [she] would [knowingly] and purposely be defiling God' [ s]
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`temple." (Id.).
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`Plaintiff, however, fails to explain how her religious beliefs lead to the conclusion that
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`the COVID-19 vaccine will cause harm to her body. The letter from Plaintiffs religious leader,
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`submitted in support of her exemption request, also fails to support this connection. The letter
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`states that "the Word of God forbids us to accept certain things and entities into our bodies, as
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`our bodies are the living temple of the Holy Spirit," but does not describe any religious belief
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`that guides followers in determining which "certain things and entities" should not be accepted
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`into their body. (Id. at 5). Plaintiffs personal conception of what is harmful cannot qualify as a
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`opposed to religious beliefs that form a part of Plaintiffs Christian faith. (See D.I. 22 at 7-15 ;
`D.I. 25 at 5-9). I therefore address only the questions at issue: whether Plaintiff has sufficiently
`connected her objection to the vaccine to a religious belief tied to her Christian faith or whether
`the beliefs that form the basis of Plaintiffs objection would otherwise satisfy the Africa standard.
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`religious belief under Africa; concluding otherwise would grant Plaintiff "the type of ' blanket
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`privilege' that undermines our system of ordered liberty." Ellison, 2023 WL 6038016, at *5
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`(citing Africa, 663 F.2d at 1031).4 Plaintiff has failed to adequately link her objection to the
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`COVID-19 vaccines to religious beliefs stemming from Plaintiff's Christian faith.
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`Plaintiff's objection is "predicated fundamentally on her concerns with the safety of the
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`vaccine." Passarella v. Aspirus, Inc. , 2023 WL 2455681 , at *5 (W.D. Wis. Mar. 10, 2023).
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`Plaintiff does "not articulate any religious belief that would prevent her from taking the vaccine
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`if she believed it was safe." Id. Plaintiff's references to "harm," "contamination," and
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`"shorten[ing] [her body's] life expectancy" shows her focus on the vaccine' s supposed
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`detrimental effects to her body. Plaintiff's religious leader's letter further demonstrates the
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`medical basis of her objection. The letter focuses on the uncertainty surrounding "the long-term
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`consequences of the Covid Vaccine" and "its long-term effects on our bodies (God[']s Holy
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`Temple)." (D.I. 19-1 , Ex. A at 6 of 6). Plaintiff's medical beliefs do not qualify as religious
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`beliefs under Africa. "It takes more than a generalized aversion to harming the body to nudge a
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`practice over the line from medical to religious." Geerlings, 2021 WL 4399672, at *7; see also
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`Fallon, 877 F.3d at 492. "The notion that we should not harm our bodies is ubiquitous in
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`4 Plaintiff's counsel argued that whether a belief amounted to a "blanket privilege" presents an
`issue of sincerity that should be reserved for a jury. (Hearing Tr. at 33 :3-14). The Africa court,
`however, indicated that a principal reason that courts engaged in the practice of making "uneasy
`differentiations" between religious and nonreligious beliefs was to prevent any individual from
`retaining a "blanket privilege 'to make his own standards on matters of conduct in which society
`as a whole has important interests. " ' See Africa, 662 F .2d at 1031. I find it proper to consider
`this question when dealing with religiosity. Other district courts have likewise examined the
`"blanket privilege" question at the motion to dismiss stage. See, e.g. , Lucky v. Landmark Med. of
`Mich. , P.C., 2023 WL 7095085, at *4-7 (E.D. Mich. Oct. 26, 2023); Ellison, 2023 WL 6038016,
`at *5; Ulrich v. Lancaster Gen. Health , 2023 WL 2939585, at *5 (E.D. Pa. Apr. 13, 2023);
`Blackwell v. Lehigh Valley Health Network, 2023 WL 362392, at *8 (E.D. Pa. Jan. 23 , 2023);
`Finkbeiner, 623 F. Supp. 3d at 465.
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`religious teaching, but a concern that a treatment may do more harm than good is a medical
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`belief, not a religious one." Geerlings, 2021 WL 4399672, at *7 (quoting Fallon, 877 F.3d at
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`492) ( cleaned up).
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`At oral argument, Plaintiff's counsel took the position that " [h]arming my body is the
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`religious belief' expressed by Plaintiff. (Hearing Tr. at 34:15-35:12 (" [I]fl believe [the vaccine]
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`is going to cause long-term harm to my body, then my truly-held religious belief is that my body
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`is a temple of the Holy Spirit, and I should put nothing in my body that's going to harm it. That's
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`religious belief.")). Plaintiffs counsel effectively seeks to "cloak □ with religious significance"
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`Plaintiff's concern that the vaccine will harm her body. Africa, 662 F.2d at 1035. The Third
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`Circuit has already rejected such a position. Id. (explaining "[t]he notion that all oflife's
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`activities can be cloaked with religious significance" cannot transform an otherwise secular idea
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`into a religious belief). Several other district courts handling similar religious discrimination
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`cases involving the COVID-19 vaccine have also found such medical judgments do not qualify
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`as religious beliefs. See, e.g. , McKinley v. Princeton Univ., 2023 WL 8374486, at *4 (D.N.J.
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`Dec. 1, 2023); Ellison, 2023 WL 6038016, at *5; Winans v. Cox Auto, Inc., 2023 WL 2975872,
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`at *4 (E.D. Pa. Apr. 17, 2023); Ulrich v. Lancaster Gen. Health, 2023 WL 2939585 , at *5 (E.D.
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`Pa. Apr. 13, 2023); Passarella, 2023 WL 2455681 , at *5-7; Geerlings, 2021 WL 4399672, at *7;
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`contra, Aliano, 2023 WL 4398493 , at *8- 9.
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`For the reasons stated above, I find Plaintiffs Complaint does not plausibly allege that
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`Plaintiffs objection to receiving the COVID-19 vaccine was based on a sincerely held religious
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`belief. At oral argument, Plaintiffs counsel agreed that, in the event that I found a plaintiff had
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`not adequately pled a religious belief, dismissal with prejudice was the proper path forward.
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`(Hearing Tr. at 65: 1-9). I will therefore dismiss Plaintiff's failure to accommodate claim with
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`prejudice.
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`B. Disparate Treatment
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`Defendant argues that Plaintiff has failed to sufficiently plead a religious discrimination
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`claim under Title VII based on disparate treatment. (D.I. 22 at 15). Plaintiff states that she has
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`not yet pled disparate treatment. (D.I. 23 at 20). I agree with Defendant that Plaintiff's assertion
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`of "differential treatment" presents some confusion about whether a disparate treatment claim
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`has been raised. (D.I. 25 at 10 n. 22). Nevertheless, since Plaintiff states she is not now pleading
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`disparate treatment, I accept that she is not, and I will dismiss Defendant' s argument as moot.
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`C. Plaintiff's DDEA Claims
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`A federal court has supplemental jurisdiction over a state law claim when the claim
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`"arise[ s] out of a common nucleus of operative fact" with the claims over which the court has
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`original jurisdiction. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); see 28
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`U.S.C. § 1367(a). A federal court "may decline to exercise supplemental jurisdiction over a
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`claim ... if . . . the district court has dismissed all claims over which it has original jurisdiction .
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`. . . " 28 U.S.C. § 1367(c)(3). Given my disposition of Plaintiffs Title VII claims, I decline to
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`exercise supplemental jurisdiction over Plaintiffs remaining DDEA claims. I will dismiss
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`Plaintiff's claims under Count II without prejudice.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendant's motion to dismiss (D.I. 21) is GRANTED in part
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`and DISMISSED as moot in part.
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`An appropriate order will issue.
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