Case 2:23-cv-11439-SFC-KGA ECF No. 27, PageID.474 Filed 04/12/24 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`LAURA HORNE,
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`Plaintiff,
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`v.
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`PENTASTAR AVIATION, LLC,
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`Defendant.
`_______________________________/
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`Case No. 23-11439
`
`Sean F. Cox
`United States District Court Judge
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`OPINION & ORDER
`DENYING DEFENDANT’S MOTION TO DISMISS
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`Plaintiff alleges that her former employer terminated her in violation of Title VII and
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`Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”). Plaintiff alleges that she incurred
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`religious discrimination in violation of Title VII and asserts those claims under both a disparate-
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`treatment and failure-to-accommodate theory. She also asserts a disparate treatment claim under
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`the ELCRA. The claims are based upon Plaintiff’s allegations that her former employer failed to
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`accommodate her sincere religious belief against being vaccinated against COVID-19, and
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`treated other non-protected employees more favorably than her by allowing them to work
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`without being vaccinated. Plaintiff also asserts claims against her former employer under the
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`Fair Labor Standards Act and seeks to assert those claims as a collective action. She alleges that
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`Defendant violated the Act by failing to pay her, and other flight attendants, overtime pay. The
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`matter is currently before the Court on Defendant’s Motion to Dismiss, brought under Fed. R.
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`Civ. P. 12(b)(6). The parties have briefed the issues and the Court heard oral argument on April
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`9, 2024. For the reasons set forth below, the Court denies the motion.
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`1
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`Case 2:23-cv-11439-SFC-KGA ECF No. 27, PageID.475 Filed 04/12/24 Page 2 of 24
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`A.
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`Procedural Background
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`BACKGROUND
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`Plaintiff Laura Horne filed this action against Defendant Pentastar Aviation, LLC on
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`June 19, 2023. The action was filed in federal court based upon federal-question jurisdiction and
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`Plaintiff asks the Court to exercise supplemental jurisdiction over her state-law claim.
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`After Defendant filed a Motion to Dismiss, this Court issued its standard order, giving
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`Plaintiff the option of responding to the motion or filing an amended complaint in order to
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`attempt to cure any pleading deficiencies. Plaintiff opted to file an amended complaint.
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`Plaintiff’s September 27, 2023 “First Amended Complaint” (ECF No. 11) asserts the
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`following claims against Defendant: 1) “Violation of Title VII, 42 U.S.C. § 2000e, et seq.
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`Religious Discrimination – Failure to Accommodate and Disparate Treatment” (Count I); 2)
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`“Violation of Elliott-Larsen Civil Rights Act (‘ELCRA’) Religious Discrimination – Disparate
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`Treatment” (Count II); 3) “Violation of the Fair Labor Standards Act” (Count III). Plaintiff
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`seeks to assert her Fair Labor Standards Act (“FLSA”) claim as a collective action. (See Am.
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`Compl. at 30).
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`On October 11, 2023, Defendant filed the instant Motion to Dismiss, brought under Fed.
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`Civ. P. 12(b)(6). Defendant attached the following as exhibits to its motion: 1) what it purports
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`to be Plaintiff’s September 8, 2021 letter to Defendant; and 2) “PDF copies” of various websites.
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`Plaintiff’s brief in opposition to the motion attached the following as exhibits: 1) what
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`she purports to be her September 8, 2021 letter to Defendant; 2) Defendant’s letter in response;
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`and 3) a copy of a news article, titled “General Motors and Ford won’t mandate Covid-19
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`vaccination for employees.”
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`B.
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`Standard Of Decision
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`“To survive a motion to dismiss” under Fed. R. Civ. P. 12(b)(6), “a complaint must
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`contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
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`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
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`claim is facially plausible when a plaintiff pleads factual content that permits a court to
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`reasonably infer that the defendant is liable for the alleged misconduct. Id. When assessing the
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`sufficiency of a plaintiff’s claim, this Court must accept the complaint’s factual allegations as
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`true. Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). “Mere conclusions,”
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`however, “are not entitled to the assumption of truth. While legal conclusions can provide the
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`complaint’s framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664,
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`129 S.Ct. 1937.
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`“Generally, in considering a motion to dismiss, the district court is confined to
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`considering only the pleadings, or else it must convert the motion into one for summary
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`judgment under Rule 56. See Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir.
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`2010).” Electronic Mech. Sys., LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023). “However, the
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`court may, in undertaking a 12(b)(6) analysis, take judicial notice of ‘matters of public record,
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`orders, items appearing in the record of the case, and exhibits attached to the complaint.’ Golf
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`Vill. North, LLC v. City of Powell, 14 F.4th 611, 617 (6th Cir. 2021) (quoting Meyers v.
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`Cincinnati Bd. of Educ., 983 F.3d 873, 880 (6th Cir. 2020)).” Id. This Court “may consider
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`public records for the truth of the statements contained within them only when the ‘contents
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`prove facts whose accuracy cannot reasonably be questioned.’” Id. (citing Passa v. City of
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`Columbus, 123 F. App’x 694, 697 (6th Cir. 2005)).
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`Here, both parties have attached, as an exhibit to their respective briefs, what they
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`identify as Plaintiff’s religious exemption letter that was sent to Defendant. Notably, however,
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`the letters submitted by the parties are different. (Compare ECF No. 14-2 with 15-1). While the
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`Court may generally consider such a letter in ruling on motion to dismiss, because it is central to
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`the complaint and referenced in it, that is the general rule that applies when there is no dispute
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`about the actual document. Thus, while this Court may consider the portions of the letters that
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`are the same, it will not consider the portions of the letter that differ.
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`Both parties have also attached other exhibits that should not be considered by the Court,
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`unless the Court converts the pending motion into a summary judgment motion. This includes
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`pdf print-outs of unspecified websites that contain language Defendant contends Plaintiff copied
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`and then used in her religious exemption letter. (See Def.’s Exs. 2, 3 & 4). Plaintiff has
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`likewise attached an article about GM’s practices during COVID. When the parties do this (ie.,
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`ask the Court to consider such materials when ruling on a motion to dismiss), the Court should
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`clarify whether it intends to convert the motion in to a summary judgment motion. This Court
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`declines to convert the motion into a summary judgment motion and will not consider these
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`materials.
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`Because at the motion-to-dismiss stage, the Court is considering the allegations in the
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`complaint, a 12(b)(6) motion is generally an “inappropriate vehicle” for dismissing a claim based
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`upon a statute of limitations. Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 698 (6th Cir. 2022).
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` (quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012)). However, dismissal is
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`warranted if the allegations in the complaint “affirmatively show that the claim is time-barred. ”
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`Case 2:23-cv-11439-SFC-KGA ECF No. 27, PageID.478 Filed 04/12/24 Page 5 of 24
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`Id.
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` C.
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`Relevant Factual Allegations
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`Plaintiff Laura Horne was employed by for Defendant Pentastar Aviation, LLC for more
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`than thirty-eight years. (Am. Compl. at ¶¶ 2 & 14).
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`Allegations Regarding FLSA Claims
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`Plaintiff was employed as a flight attendant for Defendant. (Am. Compl. at ¶¶ 2 & 14).
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`“The basic duties of a Flight Attendant are primarily made up of non-managerial and non-
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`administrative tasks.” (Am. Compl. at ¶ 92).
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`Plaintiff alleges that, at all relevant times, Defendant has been “a private non-commercial
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`airline.” (Am. Compl. at ¶ 92). She alleges that Defendant “exclusively services General
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`Motors and does not offer commercial airline services to the general public.” (Am. Compl. at ¶
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`15). Plaintiff alleges that the “common carrier” exemption to the FLSA “does not apply because
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`Defendant is a private non-commercial airline.” (Am. Compl. at ¶ 93).
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`Plaintiff alleges that “[p]rior to May 5, 2003, Plaintiff was properly classified as eligible
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`for overtime pay.” (Am. Compl. at ¶ 96).
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`“On May 12, 2003,” however, “Defendant without justification ‘reclassified [Plaintiff]
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`from hourly nonexempt to salaried exempt,’ whereupon she was no longer ‘eligible for overtime
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`pay for time worked in excess of 40 hours in a work week.’” (Am. Compl. at ¶ 97). She alleges
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`that Defendant implemented policies and practices “to prevent Plaintiff and other similarly
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`situated individuals from being compensated overtime hours despite working over 40 hours a
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`week.” (Am. Compl. at ¶ 98).
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`Plaintiff alleges that she was “misclassified exempt from overtime and unlawfully
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`deprived of overtime compensation for all hours worked in excess of forty (40) per week.” (Am.
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`Compl. at ¶ 94). Plaintiff alleges that, after 2003, she “never received overtime pay despite
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`routinely working over forty (40) hours per week.” (Am. Compl. at ¶ 95).
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`Plaintiff alleges that “Defendant knew, or showed reckless disregard for the fact that it
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`failed to pay Plaintiff overtime compensation in violation of the FLSA.” (Am. Compl. at ¶ 101).
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`She alleges that Defendant’s conduct “constitutes a willful violation of the FLSA within the
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`meaning of 29 U.S.C. § 2559(a).” (Am. Compl. at ¶ 105).
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`Plaintiff alleges that “[o]n August 17, 2004, the U.S. Department of Labor issued a
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`response ‘to [a] request for an opinion on the application of the overtime provisions of the Fair
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`Labor Standards Act’” relative to a “private employer that maintains three aircraft and leases a
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`fourth aircraft to another corporate entity . . .” (Am. Compl. at ¶ ¶ 106-107). The letter gives an
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`opinion as to whether the entity at issue meets the common law definition of a common carrier
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`for purposes of the RLA and concludes that it does not. (Id.; see also ECF No. 15-4).
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`Plaintiff seeks to assert her FLSA claims on a collective basis. “With respect to the
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`collective action claims under the FLSA, the collective action is defined as (a) all current and
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`former employees of Defendant who worked as Cabin/Flight Attendants from three (3) years
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`preceding the filing of this lawsuit through the culmination of this litigation.” (Am. Compl. at ¶
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`99).
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`Allegations Related To Vaccination Requirement And Plaintiff’s Termination
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`In mid-to-late 2021, Defendant announced a policy requiring all employees working with
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`certain clients to fully vaccinate against COVID-19 or to submit accommodation requests. (Am.
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`Compl. at ¶ 23).
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`Plaintiff alleges that she “seeks to make all decisions, including those regarding
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`vaccination and other medical decisions, through prayer and faith-based reasoning” and that her
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`“morals and conscience are based on her religious beliefs and the teachings of God and the
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`Bible.” (Am. Compl. at ¶¶ 24 & 25). Plaintiff “has been a follower of the Catholic Church all
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`her life and attends church services multiple times per week,” “attends church every Sunday,”
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`and her “coworkers and supervisors were aware of her sincere religious beliefs.” (Am. Compl.
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`at ¶¶ 26-28). “Plaintiff attended mass with her coworkers, Robert Lark and Kevin Guckian,
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`while traveling for her job.” (Am. Compl. at ¶ 29).
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`Plaintiff alleges that her “sincerely held religious beliefs precluded her from vaccinating
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`against COVID-19,” that she “sought counsel with her Pastor, Father Robert Scott, regarding her
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`decision not to receive the COVID-19 vaccine,” and that “Father Robert Scott endorsed
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`Plaintiff’s decision to remain unvaccinated against COVID-19.” (Am. Compl. at ¶¶ 30-32).
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`Plaintiff alleges that she “holds a bona fide religious belief that conflicts with” Defendant’s
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`“vaccine mandate.” (Id. at ¶ 113). Plaintiff alleges that she “consulted publicly available
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`websites, religious texts, and also prayed before drafting her religious accommodation request.”
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`(Am. Compl. at ¶ 33). Her Amended Complaint alleges that:
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`34.
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`35.
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`36.
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`37.
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`Plaintiff believes that the Holy Spirit has a plan for her.
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`Plaintiff speaks with the Holy Spirit through prayer.
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`The Holy Spirit expressly directed Plaintiff not to receive the
`COVID-19 vaccine.
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`Plaintiff further believes that God created her in his image and that
`it would violate Plaintiff’s sincerely held religious beliefs to alter
`her body by receiving the COVID-19 vaccine.
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`(Am. Compl. at ¶¶ 34-37).
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`Plaintiff alleges that “[o]n or about September 8, 2021, Plaintiff submitted her religious
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`accommodation request detailing her sincerely held bona fide religious beliefs precluding
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`COVID-19 vaccination.” (Am. Compl. at ¶ 38). Her “religious accommodation request stated in
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`part:
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`Laura Horne . . . . a living woman, retain and reserve all of my God-given rights,
`including sole possession and sole use of all my biological materials, which are
`granted to [me] by my creator.
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`In the State of Michigan, I have the right to declare Religious and Medical
`Exemptions.
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`I retain the right to decline all attempts to access, influence or otherwise alter any
`of my God-given biological material and or biological systems, which are unique,
`flawless and originally design[ed] and crafted by my creator and of which my
`creator has granted me sole possession proprietorship and use of. My moral duty
`to refuse the use of medical products, including certain vaccines that are
`produced and or tested with human cell lines derived from abortions. My moral
`obligation is to my creator only. I have a sincere and deep religious belief that my
`body is the temple of the Holy Spirit. I also have the right and duty to obey my
`conscience.
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`***
`For the past 38 years I have been [a] loyal and dedicated employee to Pentastar
`Aviation. I love my job and the people I work for.
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`Pursuant to my above statement, I decline the offer to be vaccinated[.]
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`(Am. Compl. at ¶ 39) (emphasis added). It is undisputed that Plaintiff’s letter also included other
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`concerns about getting vaccinated.
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`On or about September 10, 2021, “Defendant denied Plaintiff’s religious accommodation
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`request vi[a] letter” stating in part:
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`We are in receipt of your religious exemption letter provided on September 8,
`2021. Thank you.
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`As we stated in our previous correspondence to you, the customer, GM, dictates
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`safety conditions, including vaccines, at its work site, in this case, the aircraft.
`And so, irrespective of your religious exemption letter, you cannot serve on the
`GM flight crew.
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`Be advised that Pentastar will follow its standard internal posting process. Should
`an internal opening be created because of someone moving into your open
`position as a part of the GM flight crew, you would be able to apply/interview to
`become a part of another customer’s flight crew (without a vaccine mandate). If
`such opportunity is not possible, and as we stated before, Pentastar must release
`you from active employment and back-fill your position with an employee whom
`meets the GM crew requirements. You may, on your unpaid leave, take advantage
`of unpaid but accrued PTO. We will periodically review the circumstances and as,
`an alternative, you can apply to fill an open position at Pentastar. Right now, there
`is open Line Technician position for which you could apply. Please let us know
`about this possible alternative position.
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`If you prefer a separation from employment so that you may apply for
`unemployment benefits, please let us know.
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`(Am. Compl. at ¶ 40) (emphasis added). Plaintiff alleges:
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`41.
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`42.
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`43.
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`44.
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`45.
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`Defendant could have offered Plaintiff several accommodations, including mask
`wearing, social distancing, daily and/or weekly testing.
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`Defendant offered Plaintiff a position as a Line Service Technician.
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`However, the line service technician position is physically demanding.
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`Plaintiff was unable to accept the single alternative position offered by Defendant
`due to her age and physical ability.
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` Plaintiff was not provided an opportunity to work as a Flight Attendant for
`contractors who did not require all staff to receive the COVID-19 vaccine.
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`(Am. Compl. at ¶¶ 41-45).
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`Plaintiff alleges that “Defendant denied Plaintiff’s accommodation request and retaliated
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`against her for engaging protected activity” and “Defendant discriminated against Plaintiff
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`because of her religious beliefs.” (Am. Compl. at ¶¶ 52 & 145). Following her letter to
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`Defendant informing it of her religious beliefs, Defendant terminated Plaintiff’s employment.
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`(Am. Compl. at ¶¶ 126-27). Plaintiff also alleges that:
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`58.
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`59.
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`Defendant treated other similarly situated employees with different
`religious beliefs more favorably than Plaintiff.
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`Upon information and belief, Defendant treated employees not in a
`protected class more favorably than Plaintiff by allowing them to
`work without a COVID-19 vaccination.
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`(Am. Compl. at ¶¶ 58 & 59).
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`ANALYSIS
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`I.
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`Challenges To Plaintiff’s Religious Discrimination Claims Under Title VII And
`Michigan’s ELCRA
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`As Defendant’s brief acknowledges, both Title VII and Michigan’s ELCRA prohibit an
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`employer from discriminating against an employee on the basis of religion. (Def.’s Br. at 7)
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`(citing 42 U.S.C. § 2000e-2(a)(1) and Mich. Comp. Laws § 37.2202).
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`There are two theories for asserting religious discrimination claims: disparate treatment
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`and failure to accommodate. In this case, Plaintiff has alleged both theories as to her claims
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`brought under Title VII but asserts only a disparate treatment claim under the ELCRA.1
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`A.
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`Has Plaintiff Sufficiently Pleaded A Religious Accommodation Claim Under
`Title VII?
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`Defendant first argues that Plaintiff has not sufficiently pled a religious accommodation
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`claim under Title VII. Defendant begins it argument by stating:
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`“The analysis of any religious accommodation case begins with the question of
`whether the employee has established a prima facie case of religious
`discrimination.” Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). To do so,
`the employee must demonstrate that “(1) [s]he holds a sincere religious belief that
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`1Defendant’s brief questioned whether Plaintiff was attempting to assert a failure-to-
`accommodate claim under the ELCRA because the body of Count II contains allegations similar
`to those in Count I. (Def.’s Br. at 19). Plaintiff’s response confirms that she is not asserting a
`failure-to-accommodate claim under the ELCRA. (See Pl.’s Br. at 20) (“Plaintiff’s FAC does
`not allege an ELCRA Failure to Accommodate Claim, but rather an ELCRA religious
`discrimination – disparate treatment claim.”).
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`conflicts with an employment requirement; (2) [s]he has informed the employer
`about the conflicts; and (3) [s]he was discharged or disciplined for failing to
`comply with the conflicting employment requirement.” Id.
`. . . .
`If an employee establishes a prima facie case, “the employer has the burden ‘to
`show that it could not reasonably acommodate the employee without undue
`hardship.” Tepper, 505 F.3d at 514.
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`(Def.’s Br. at 7-8).
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`Defendant argues that “the employee must specifically inform the employer that they are
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`requesting an accommodation based on a sincere religious belief, as opposed to an
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`accommodation based on disability or health concerns or some other unprotected rationale (e.g.,
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`vaccine safety and efficacy).” (Id. at 8). Defendant argues that Plaintiff has not sufficiently
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`pleaded, and did not adequately inform Defendant, that she was requesting an accommodation
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`for her religious beliefs.
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`As to the letter submitted to Defendant by Plaintiff, Defendant contends that it is “not a
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`‘religious accommodation request’; it is a written explanation of her refusal to become
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`vaccinated based upon her concerns about vaccine safety and efficacy.” (Def.’s Br. at 9)
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`(emphasis added). In support of this argument, Defendant directs the Court to Judge Berg’s
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`decision in Collias v. Motorcity Casino, 2023 WL 6406220 (E.D. Mich. 2023).
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`Defendant also suggests that Plaintiff’s letter cannot be deemed to have expressed a
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`“sincere” religious belief of Plaintiff’s because Defendant believes that Plaintiff copied certain
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`language in her letter from various websites. Defendant argues that it, therefore, did not have
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`proper notice that Plaintiff was requesting a religious accommodation. (Def.’s Br. at 10).
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`Defendant further argues that her Title VII claim should be dismissed because Defendant
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`could not reasonably accommodate Plaintiff without undue hardship. (Def.’s Br. at 14).
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`This Court denies Defendant’s challenges to Plaintiff’s Title VII failure-to-accommodate
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`claim.
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`Notably, the Tepper case that Defendant directs the Court to was a case analyzing a
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`summary judgment motion – not a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6).
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`That matters because, as this Court recognized in Golles, a plaintiff is not required to allege facts
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`establishing a prima facie employment discrimination claim in order to survive a 12(b)(6) motion
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`to dismiss:
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`The Court rejects Defendants’ challenge. That is because a plaintiff “need not”
`“allege facts establishing a prima facie of disability discrimination to survive a
`motion to dismiss under Rule 12(b)(6).” Morgan v. St. Francis Hosp., 2019 WL
`5432041 at * 1 (6th Cir. 2019) (citing Swierkiewicz v. Sorema, N.A., 534 U.S.
`506, 510-12 (2002)). In Swierkiewicz, the Supreme Court resolved “the question
`of whether a complaint in an employment discrimination lawsuit must contain
`specific facts establishing a prima facie case of discrimination under the
`[McDonnell Douglas] framework.” Serrano v. Cintas Corp., 699 F.3d 884, 897
`(6th Cir. 2012). The Supreme Court “answered in the negative and explained that
`‘[t]he prima face case under McDonnell Douglas ... is an evidentiary standard, not
`a pleading requirement.” Id. And Swierkiewicz remains good law after the
`Supreme Court’s decision in Twombly. Serrano, 699 F.3d at 897.
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`Thus, a “complaint attacked by a motion to dismiss requires more than labels,
`conclusions, and a recitation of a cause of action, but it need not contain detailed
`factual allegations.” (Morgan, supra)(quoting Bell Atl. Corp. v. Twombly, 550
`U.S. 544, 555 (2007)). To survive a motion to dismiss under Fed. R. Civ. P.
`12(b)(6), Plaintiff “need only ‘give” Defendants “fair notice of what her claims
`are and the grounds upon which they rest. Morgan, supra (quoting Swierkiewicz,
`supra).
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`Golles v. Five Star Store It, LLC, 2023 WL 5833858 at *4-5 (E.D. Mich. 2023).
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`Other district courts have recognized this same general concept in the context of motions
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`to dismiss claims such as this one. For example, in Witham, the district court explained that
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`while the plaintiff “eventually must show” a prima facie case of religious discrimination under
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`Case 2:23-cv-11439-SFC-KGA ECF No. 27, PageID.486 Filed 04/12/24 Page 13 of 24
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`Title VII, she need not plead facts establishing a prima facie case to survive a 12(b)(6) motion.
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`Witham v. Hershey Co., 2023 WL 8702637 at *3 (D. Minn. 2023). And the Sixth Circuit very
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`recently confirmed that the “Swierkiewicz rule” remains intact. Savel v. MetroHealth Sys., __
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`F.4th __, 2024 WL 1190973 at *7 (6th Cir. March 20, 2024) (Explaining that “Swierkiewicz
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`controls” and thus a “plaintiff does not have to allege specific facts establishing a prima facie
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`case of discrimination in their complaint,” and finding that the plaintiffs plausibly pleaded that
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`the defendant “failed to give them a reasonable accommodation by denying their requests for a
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`religious exemption to its vaccine mandate.”).
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`As explained above, the Court will not consider the printouts that Defendant attached to
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`its brief, from various websites, that it contends show Plaintiff merely copied what others have
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`said in requesting religious accommodations or exemptions. Rather, the Court looks to the
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`actual allegations in Plaintiff’s Amended Complaint, and the undisputed portions of her letter to
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`Defendant.
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`Although Plaintiff’s letter to Defendant also stated additional concerns about the
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`vaccine’s safety and efficacy, those were not the only concerns expressed. Plaintiff’s letter also
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`expressed – in the first portion of her letter – her belief that the vaccine violates her religious
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`beliefs.2 Indeed, Defendant’s argument that it was not on notice that Plaintiff was expressing
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`religious concerns (as opposed to just safety or efficacy concerns) is belied by Defendant’s own
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`letter to Plaintiff in response. (ECF No. 15-2) (“We are in receipt of your religious exemption
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`2Thus, Defendant’s reliance on Collias is misplaced as the employee at issue there did not
`submit a religious accommodation request to her employer and, additionally, stated her
`opposition concerns in the complaint as medical as opposed to religious. Here, Plaintiff
`provided a written request and it stated both religious opposition and safety concerns.
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`letter provided on September 8, 2021.”) (emphasis added).
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`The Court denies this challenge to Plaintiff’s claim and rules that Plaintiff has
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`sufficiently alleged that it would violate her religious beliefs to receive the COVID-19 vaccine
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`and that she so advised her employer. A number of other district courts, that recognized a
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`plaintiff need not plead a prima facie case, have so ruled. For example, in Smith, the district
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`court ruled very concisely on a challenge like the one made here:
`
`The Court notes that at this stage, however, “a plaintiff need not make a prima
`facie showing of discrimination under the McDonnell Douglas framework in
`order to survive a motion to dismiss,” as the prima facie “framework is an
`evidentiary standard and not a pleading requirement.” Plaintiff's Complaint will
`be evaluated under the “ordinary rules for assessing the sufficiency of a
`complaint.”
`
`Plaintiff alleges he told Defendant that it would violate Plaintiff's sincerely held
`religious beliefs to take a vaccine derived from aborted fetal cell lines. As a
`consequence for his refusal to receive the vaccine, he was fired. The Court finds
`that, taking these allegations as true, Plaintiff has established a prima facie case of
`religious discrimination. As such, Plaintiff's claim for religious discrimination
`survives Defendant’s Motion to Dismiss.
`
`Smith v. Terminez Pest Control, Inc., 2023 WL 3569127 at *4 E.D. LA 2024). Another example
`
`is the district court’s ruling in Witham:
`
`Hershey argues that Witham has failed to allege a plausible Title VII religious
`discrimination claim, but Hershey’s arguments on this point are not persuasive.
`Hershey argues that Witham’s objections to the COVID-19 vaccines and
`Hershey’s vaccine policy are not “religious.” For this argument, Hershey focuses
`on Witham'’ broader allegations regarding, for example, the sanctity of his body
`and the dangerousness or ineffectiveness of the COVID-19 vaccines. See, e.g., id.
`¶¶ 30, 36–37, 40, 42, 55, 75–84. The first answer to this argument is that it does
`not address Witham’s abortion-specific concerns. Those concerns are (at least)
`plausibly religious. And those concerns mean the claim survives. The second
`answer is that determining whether Witham’s objections—or which of them—are
`religious is a fact-intensive question that seems generally ill-suited for resolution
`at the motion-to-dismiss stage. See Love v. Reed, 216 F.3d 682, 687 (8th Cir.
`2000) (identifying considerations relevant to answering whether a belief is
`religious in nature, as distinct from a belief that is secular or personal). That is not
`
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`Case 2:23-cv-11439-SFC-KGA ECF No. 27, PageID.488 Filed 04/12/24 Page 15 of 24
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`to say this question could never be appropriate for resolution on a Rule 12(b)(6)
`motion. It is to say that Witham went to some length in his Complaint to tether his
`objections—including objections that might reasonably be construed as secular or
`personal—to his Catholic faith. It is therefore plausible that, for Witham, these
`concerns are rooted in his faith. That is enough for now.
`
`Witham, supra, at *3.
`
`Other district courts have also found such allegations regarding religious beliefs to be
`
`sufficient at this pleadings stage. See, eg. Caspensen v. Western Union, LLC, 2023 WL 6602133
`
`(D. Colo. 2023).
`
`The Court also rejects Defendant’s 12(b)(6) challenge that Plaintiff’s Title VII failure-to-
`
`accommodate claim should be dismissed because Defendant could not reasonably accommodate
`
`Plaintiff without undue hardship. (Def.’s Br. at 14). In responding to this challenge, Plaintiff
`
`asserts that the undue hardship is a defense that is not an issue that should be decided at the
`
`pleading stage of the case. Even Defendant acknowledges that undue hardship is an affirmative
`
`defense. (Def.’s Br. at 14). Thus, district courts have rejected such challenges in connection
`
`with motions to dismiss in these type of cases. See, eg., Dean v. Acts Retirement Life
`
`Communities, 2024 WL 964218 at *6 (D. Md. 2024) (“Whether an undue hardship exists is
`
`usually considered an issue of fact to be determined on summary judgment” under authority such
`
`as Groff v. DeJoy, 600 U.S. 447, 468 (2023), noting that the defendant “does not identify, and
`
`the Court could not locate, a single case where a federal court decided whether an
`
`accommodation imposed an undue hardship on a motion to dismiss,” and rejecting the challenge
`
`as premature.). This Court should do so as well.
`
`Accordingly, the Court rejects Defendant’s challenges to Plaintiff’s Title VII failure-to-
`
`accommodate claim at this pleadings stage of the case.
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`B.
`
`Has Plaintiff Sufficiently Alleged A Disparate Treatment Claim Under Title
`VII And The ELCRA?
`
`In her Amended Complaint, Plaintiff asserts a disparate treatment claim under both Title
`
`VII (Count I) and the ELCRA (Count II).
`
`Again, Defendant’s brief questioned whether Plaintiff was attempting to assert a failure-
`
`to-accommodate claim under the ELCRA because the body of Count II contains allegations
`
`similar to those in Count I – rather than allegations about differential treatment. (Def.’s Br. at
`
`19). Plaintiff’s response confirms that she is not asserting a disparate treatment claim under the
`
`ELCRA. (Pl.’s Br. at 20). While the bodies of Counts I and II do not contain allegations about
`
`differential treatment, the Amended Complaint does include such allegations in the general
`
`factual allegation sections:
`
`58.
`
`59.
`
`Defendant treated other similarly situated employees with different
`religious beliefs more favorably than Plaintiff.
`
`Upon information and belief, Defendant treated employees not in a
`protected class more favorably than Plaintiff by allowing them to work
`without a COVID-19 vaccination.
`
`(Am. Compl. at ¶¶ 58 & 59).
`
`In challenging Plaintiff’s disparate treatment claims, Defendant’s brief again starts out by
`
`specifying what a prima facie case requires a plaintiff to prove:
`
`To make out a prima facie case of disparate treatment under Title VII and
`Michigan’s ELCRA, Plaintiff must establish that she (1) belonged to a protected
`class; (b) suffered an adverse employment action; (c) was qualified for her
`position; and (d) was treated differently from similarly situated employees of an
`unprotected class for the same or similar conduct.
`
`(Def.’s Br. at 18). Defendant challenges only the last element.
`
`Defendant argues that “[w]ithout a comparator, Horne has merely alleged that Pentastar
`
`16
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`Case