Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 1 of 39 PageID #: 768
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`DEREK T. TROUTMAN,
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`Plaintiff,
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`vs.
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`TEVA PHARMACEUTICALS USA,
`INC. and TEVA SALES AND
`MARKETING, INC.
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` Defendants.
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` CIVIL ACTION NO. 6:22-CV-395
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` JURY TRIAL DEMANDED
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`DEREK T. TROUTMAN’S RESPONSE IN OPPOSITION TO
`TEVA PHARMACEUTICALS USA, INC. AND TEVA SALES
`AND MARKETING, INC.’S MOTION FOR SUMMARY JUDGMENT
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`Dated: April 9, 2024
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`Respectfully submitted,
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`KILGORE & KILGORE, PLLC
`Clark B. Will
`Texas Bar No. 21502500
`THE LAW OFFICE OF CLARK B. WILL, P.C.
`Member of Kilgore & Kilgore, PLLC
`3141 Hood Street, Suite 500
`Dallas, TX 75219
`Telephone: (214) 379-0834
`Facsimile: (214) 379-0838
`E-mail: cbw@kilgorelaw.com
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`And
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`WASH & THOMAS
`Danny C. Wash
`Texas Bar No. 20896000
`6613 Sanger Ave.
`Waco, Texas 76710
`(254) 776-3611
`(254) 776-9217 - Fax Number
`danwash@washthomas.com
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`ATTORNEYS FOR PLAINTIFF
`DEREK T. TROUTMAN
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Page i
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 2 of 39 PageID #: 769
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`CERTIFICATE OF SERVICE
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` I
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` hereby certify that a true and correct copy of the foregoing document has been served
`upon the following counsel of record by electronic mail (e-mail) and/or ECF electronic service on
`this the 9th day of April, 2024.
`
`David B. Jordan
`LITTLER MENDELSON, P.C.
`A PROFESSIONAL CORPORATION
`1301 McKinney Street Suite
`1900 Houston, TX 77010
`713.951.9400 (Telephone)
`713.951.9212 (Telecopier)
`djordan@littler.com
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`/s/ Clark B. Will
`Clark B. Will
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Page ii
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 3 of 39 PageID #: 770
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`TABLE OF CONTENTS
`TABLE OF EXHIBITS………………………………………………………………………iii
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`TABLE OF AUTHORITIES…………………………………………………………………iv
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`I. SUMMARY OF PLAINTIFF’S RESPONSE TO
` DEFENDANTS’ KEY ARGUMENTS…… ……………………………………………1
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`II. PLAINTIFF’S RESPONSE TO DEFENDANTS’ ISSUES TO BE DECIDED………2
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`III. RESPONSE TO TEVA’S “UNDSIPUTED” STATEMENT OF FACTS……………3
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`IV. INTRODUCTION………………………………………………………………………..3
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`V. ARGUMENTS AND AUTHORITIES…………………………………………………..6
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`Summary Judgment Standard………………………………………………………..6
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`Fact Issues Exist as to Each Element of Derek’s Discrimination Claims…….…….6
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` Derek Had a Bona Fide Religious Belief……………………………………………...8
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` Teva’s Litany of District Court Opinions from Other Circuits…………………….9
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` Teva’s Citations at Odds with the Fifth Circuit……………………………………..9
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` Teva Ignores N. Dist. Opinion Rejecting Their Arguments………………………..10
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` Derek’s Requests for Accommodation Were Reasonable…………………………..15
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` Derek Could Perform His Essential Job Functions Even Accommodated………...15
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` This Court Must Follow Current Supreme Court Precedent………………………18
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` Harper Requires the Court to Follow Groff…………………………………………19
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` Teva Has Not Established “Undue Hardship” as a Matter of Law…………………20
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` Groff and Hebrew Show Teva Has Not Proven Undue Hardship
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`as a Matter of Law……………………………………………………………………...21
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` There is Evidence that Teva USA was Derek’s Employer…………………………...25
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` Derek Has a Valid Claim for Loss of Community Property Interest……………….27
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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` There is Evidence of Teva’s Retaliation for Derek Seeking Accommodation………26
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`Page iii
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`IV. PRAYER…………………………………………………………………………………30
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Page iv
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 5 of 39 PageID #: 772
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`TABLE OF AUTHORITIES
`
`Cases
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`Alkhawaldeh v. Dow Chem. Co. 851 F.3d 422, 427 (5th Cir. 2017) ............................................. 26
`
`Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 402
`
`(9th Cir. 1978), cert. denied ...................................................................................................... 23
`
`Baker v. The Home Depot, 445 F.3d 541, 547 (2nd Cir. 2006) .............................................. 10, 11
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`Barber v. Nabors Drilling U.S.A., Inc., 130 F. 3d 702, 708 (5th Cir.1997) ............................ 11, 15
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`Bordeaux v. Lions Gate Ent., Inc., Dist. Ct. Central Dist CA., Nov. 21, 2023) ............................. 9
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`Brown v. ATX Grp. Inc., WL 3962617 at *19-20 (N.D. Tex. Jul 16, 2012).................................. 30
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`Brown v. General Motors Corp., 601 F.2d 956, 961 (8th Cir. 1979) ........................................... 23
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`Burton v. Freescale Semiconductor, Inc. 798 F.3d 222, 236-37 (5th Cir.2015) ........................... 28
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`Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725, 134 S. Ct. 2751,
` 189 L. Ed. 2d 675 (2014) .......................................................................................................... 11
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`Busby v. Busby,457 S.W.2d 551 (Tex. 1970); Galarza v. Union Bus Lines, Inc.,
` 38 F.R.D. 401, 404 (S.D. Tex. 1965) ........................................................................................ 30
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`Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) ................... 11
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`Casey Enterprises, Inc. v. American Hardware Mutual Inc. Co., 655 F. 2d 598
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`(5th Cir. 1981) ............................................................................................................................. 6
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`Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986) .................................................................. 6
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`Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993), cert. denied,
` 114 S.Ct. 1386 (1994) ......................................................................................................... 11, 16
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`Chevron Phillips Chem., 570 F.3d at 621 ............................................................................... 18, 20
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`Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1992), cert. denied .................................... 23
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`Dillard v. City of Austin, Texas 837 F.3d 557, 562-63 (5th Cir. 2016) ........................................ 18
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`Draper v. United States Pipe and Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975) ..................... 23
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`E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771,
` 135 S. Ct. 2028, 192 L. Ed. 2d 35 (2015) ......................................................................... 7, 8, 14
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) ................................................................ 22
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`Gamon v. Shriner Hosp., (U.S. Dist. Oregon, Feb. 15. 2924) ........................................................ 9
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`Goudeau v. National Oilwell Varco, LP, 793 F.3d 470 (5th Cir. 2015) ........................................ 28
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`Grant v. Joe Meyer Toyota, Inc., 11 S.W.3d 419
`(Tex. App.-Houston [14th Dist.] 2000, no pet.) ................................................................... 11, 14
`
`
`Groff v. DeJoy, 600 U.S. 447, 143 S. Ct. 2279,
` 216 L. Ed. 2d 1041 (2023) .......................................................... 6, 15, 17, 18, 19, 20, 21, 22, 23
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`Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993) .............................................. 19, 20
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`Hebrew v. Texas Dept. of Criminal Justice, 80 F.4t 717 (5th Cir. 2023) .............. 21, 22, 23, 24, 25
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`Hobby Lobby, 573 U.S. at 725 ................................................................................................ 11, 12
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`Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001) ................................ 18
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`Machinchick v. PB Power, Inc., 398 F.3d 345, 354,f.29 (5th Cir. 2005) ...................................... 28
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`McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S. Ct. 1817,
` 36 L. Ed. 2d 668 (1973) ............................................................................................................ 27
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`McNeill v. Tyson Fresh Meats, Inc., 2023 U.S. Dist. LEXIS 219122 *;
` 2023 WL 8532408 (N.D. Tex. Dec. 8, 2023) ................................... 8, 10, 12, 13, 15, 27, 28, 29
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`Mento v. Potter, 2012 WL 1908920 at *19 (W. D. N.Y. May 25, 2012) ....................................... 30
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`Meshwert v. Meshwert,543 S.W.2d 877 (Tex.Civ.App.-Beaumont 1976), affirmed,
` 549 S.W.2d 383 (Tex. 1977) ..................................................................................................... 30
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`Moussazadeh v. Tex. Dep't of Crim. Justice, 703 F.3d 781, 792 (5th Cir. 2012) ................... 10, 11
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`Navy SEALs, 578 F. Supp.3d at 827-28 .................................................................................. 11, 12
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`Patterson v. McLean Credit Union, 492 U.S 164,187 (1989) ...................................................... 27
`Quinn v. Legacy Health, (U.S. Dist, Oregon, Feb. 13, 2024) ......................................................... 9
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`Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759 (1995) ...................................................... 19
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`Runkel v. City of Springfield, 51 F. 4th 736,745 (7th Cir. 2022) .............................................. 11, 15
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 7 of 39 PageID #: 774
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`Sambrano v. United Airlines, Inc., No. 4:21-cv-1074-P, 2023 U.S. Dist. LEXIS 224444,
` at *49-50 (N.D. Tex. Dec. 18, 2023) ........................................................................................ 16
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`Sears v. Zions Bancorporation NA, 2022 U.S. App. LEXIS 15255; 2022 WL 1800779 ............... 28
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`Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005) ............................................... 27
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`Smith, 827 F.2d at 1086 ................................................................................................................ 23
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`Stroup v. The Coordinating Ctr.,(U.S. Dist. Ct. Maryland, Sept. 28, 2023) .................................. 9
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`Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) ......................................... 27
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`Thomas v. Rev. Bd., 450 U.S. 707, 714, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981) ............... 10, 11
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`Tidwell v. Excel Global Logistics, Inc., No. 3-06-CV-0553-BD, at *4
`(N.D. Tex. Feb. 8, 2008) ............................................................................................................... 16
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`Toledo, 892 F.2d at 1492 .............................................................................................................. 23
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`Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981), cert. denied .................. 23
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`Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S. Ct. 2264,
` 53 L. Ed. 2d 113 (1977) ................................................................................................ 11, 15, 19
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`Turner v. Hershey Chocolate US., 440 F.3d 604, 612 (3rd Cir. 2006) ......................................... 16
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`U.S. Navy SEALs 1-26 v. Biden ("Navy SEALs Docket") ....................................................... 11, 29
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`United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944) .............................. 10
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`United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965) ........................... 10
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`Welsh v. United States, 398 U.S. 333, 343, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970) .................. 11
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`Statutes
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`42 U.S.C. § 2000e-2 (a)(1).......................................................................................................... 6, 7
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`Tex.Fam. Code Ann. § 5.01 (Vernon 1975) .................................................................................. 30
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`Other Authorities
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`EEOC Compliance Manual Sec. 12: Religious Discrimination § 12-V.B (2021) ........................ 27
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`EEOC, Compliance Manual Section 12: Religious Discrimination § 12-I.A.1. (2021) ......... 10, 11
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`Fed. R. Civ. P. 12(b)(6)………………………………………………………………………10, 11
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`NBC News article, “Justice Thomas Cites Claim that Covid Vaccines are Made with Cells from
`‘Aborted Children,’” 6/30/22. https://www.nbcnews.com/politics/supreme-court/justice-
`thomas-cites-debunked-claim-covid-vaccines-are-made-cells-abor-rcna36156 ...................... 14
`
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`Regulations
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`Commission Guidelines, 29 C.F.R. § 1605.1 ................................................................................ 11
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`29 C.F.R. § 1630.2(n) ................................................................................................................... 16
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 9 of 39 PageID #: 776
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`DEREK T. TROUTMAN,
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`Plaintiff,
`
`vs.
`
`TEVA PHARMACEUTICALS USA,
`INC. and TEVA SALES AND
`MARKETING, INC.
`
` Defendants.
`
`
`
`
` CIVIL ACTION NO. 6:22-CV-395
`
`
`
`
` JURY TRIAL DEMANDED
`
`
`
`
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`DEREK T. TROUTMAN’S RESPONSE IN OPPOSITION TO
`TEVA PHARMACEUTICALS USA, INC. AND TEVA SALES
`AND MARKETING, INC.’S MOTION FOR SUMMARY JUDGMENT
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`Plaintiff Derek T. Troutman (“Derek”) files this his Response In Opposition to Defendants
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`Teva Pharmaceuticals USA, Inc. and Teva Sales Marketing, Inc.’s (collectively referred to as
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`“Defendants” or “Teva”) Motion for Summary Judgment and shows as follows:
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`I. SUMMARY OF PLAINTIFF’S RESPONSE TO DEFENDANTS’ KEY ARGUMENTS.
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`1.01 Derek has and had a sincerely held religious belief that prevented him from
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`complying with Teva’s vaccine mandate. At the time Teva terminated Derek, Teva assumed that
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`Derek’s religious belief was sincere and cannot now argue otherwise. Teva predetermined that
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`customer facing field personnel, “could not be accommodated” and never considered Derek’s
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`request, nor entered into any type of an interactive process to determine if he could be
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`accommodated, when others were accommodated for medical exemptions, and still others were
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`allowed to continue to work unvaccinated.
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`1.02 Teva’s customers in Derek’s territory were not requiring vaccinations to enter their
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`facilities. Derek attempted, in his second accommodation request to inform Teva of this fact, but
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`Teva summarily refused to investigate his claims, or to interact with Derek and fired him anyway.
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 10 of 39 PageID #: 777
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`1.03 The precedent to be followed in determining undue hardship is that of the recent
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`Groff, decision by the United States Supreme Court, as recently followed by the Fifth Circuit in
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`Hebrew v. Texas Department of Corrections.
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`1.04 Failing to accommodate a sincerely held religious belief is discrimination. Derek
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`was later retaliated against when he made a second request, that countered Teva’s groundless basis
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`for denying any accommodation.
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`1.05 Derek’s is not seeking to recover for age discrimination.
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`1.06 Derek’s claim for the loss of his community share of his wife’s lost wages is not a
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`derivative claim but is a claim for his actual out of pocket loss of his ½ community share of his
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`wife’s income, and is recoverable.
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`II. PLAINTIFF’S RESPONSE TO DEFENDANTS’ ISSUES TO BE DECIDED.
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`2.01 As is set forth herein, Teva Pharmaceuticals USA, Inc. (“Teva USA”) was
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`inextricably intertwined with Teva Sales and Marketing, Inc. (jointly and severally, herein,
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`“Teva”), in that Teva USA made the decisions regarding the vaccination mandate, determined that
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`Derek “could not be accommodated,” and provided employee benefits to Derek as part of his
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`compensation. As such, a fact issue exists as to whether it was an “employer” under Title VII of
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`the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code.
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`2.02 Teva is not entitled to summary judgment on Derek’s failure-to-accommodate
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`claim as at the very least, an issue of material fact exists as to Teva’s failure to accommodate.
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`2.03 Derek has abandoned his age discrimination claim.
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`2.04 Having failed to enter into an interactive process with Derek as required by law,
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`when Derek reasserted his request for accommodation after his first request was summarily denied,
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`Teva retaliated against him and terminated him. At the very least, an issue of material fact exists
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`with regard to Derek’s retaliation claim.
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`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`2.05 Derek is entitled to recover his out of pocket monetary loss of his ½ community
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`property interest in his wife’s income, which was lost as a direct result of Teva’s religious
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`discrimination and retaliation against Derek.
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`III. RESPONSE TO TEVA’S “UNDSIPUTED” STATEMENT OF FACTS
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`3.01 Plaintiff disputes Teva’s “Undisputed Facts.” Incorporated herein by reference is
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`Appendix A, Derek’s response to Teva’s misleading and one-sided Statement of Undisputed Facts.
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`IV.
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`INTRODUCTION
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`4.01 Derek Troutman was employed by Teva for over twenty years. Derek started with
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`Teva as a sales representative on February 23, 2000. After being hired as a sales representative,
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`Derek was ultimately promoted to his last position as a senior regional manager.1 In November
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`of 2021, Teva changed its policy from encouraging vaccination to mandating vaccination for the
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`COVID-19 coronavirus,2 and one needed to either get vaccinated or have a religious or medical
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`exemption from Teva’s mandate, the classic “jab or job” ultimatum.3 Derek applied for a religious
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`exemption, which was summarily denied. He then attempted to enter into an interactive process,
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`which was ignored, and he was fired. 4 In making its predetermined decision to terminate an
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`employee with over twenty years of tenure, Teva engaged in no interactive process, whatsoever.5
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`As the excerpt cited shows, had Teva bothered to “pick up the phone” they would have learned
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`that their alleged reason for terminating Derek, as set forth in the email terminating him, the
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`“credentialing requirements of Teva’s customers that prevent you from entering customer premises
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`unless you’re fully vaccinated against COVID-19” was not in fact true, he was not being denied
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`access to his customers facilities, but that if he was, it was the exception to the rule and he had a
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`1 Appx. S 17:24, 27:17; Appx. B. ¶ 1 & ¶ 2.
`2 Appx. T 22:18 - 25:3; Appx. U; Appx. B ¶ 3.
`3 Id. at 27:6-13; Appx. B ¶ 4.
`4 Appx. B ¶ 5, 6, 7; Appx. T e.g., 30:35-31:4; 44:9-16; 94:17-95:3.
`5 Appx. S 306:25-310:9; Appx. B ¶ 8.
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`workable, virtual workaround.
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`4.02
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`Notwithstanding Teva’s “zero tolerance” vaccination mandate to the customer
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`facing sales force, it was not universally enforced.6 Derek is aware of several other customer-
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`facing field representatives who were never vaccinated and yet were allowed to keep their job and
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`are still on the job, today.7 Derek is further aware of another customer-facing field representative,
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`Scott Rao, who, after returning from a medical leave, was never required to show proof of
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`vaccination and was allowed to keep his job.8 Scott Rao was denied a religious exemption and
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`was slated for termination, and on the day of his termination, told Teva he was submitting a
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`medical exemption, and was not terminated.9 This makes it clear that termination after denying a
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`request for religious exemption, when the mandate was “jab or job”, could not be anything other
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`than retaliation for applying for a religious accommodation and refusing the shot when it was
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`denied.10
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`4.03
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`In order to consider requests for religious exemptions from its vaccine mandate, a
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`Teva established the COVID-19 Religious Exemption Review Committee (the "Committee") which
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`was organized and chaired by Carlos Benitez (“Benitez”), the Senior Director for North America
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`People Office.11 The Committee was ab initio a sham, mere eyewash in the event of later litigation.
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`The Committee considered a total of 69 requests for religious accommodation,12 51 who were not
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`“customer facing” and 18 that were “field service and customer facing.”13 All of the non-customer
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`facing employees’ requests for religious accommodation were summarily granted, and all of the
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`requests for customer facing employees were summarily denied, because management had made
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`
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`6 Appx. B ¶ 9.
`7 Appx. B ¶10.
`8 Rau Decl. ¶ 2 ; Appx. B ¶ 11.
`9 Appx. B ¶ 12.
`10 Appx. B ¶ 13.
`11 Benitez Depo. at 11:10-11.
`12 According to Mr. Benitez, at the time, Teva had 700 to 1,000 “customer facing” field sales personnel. Of this number, 18
`requested a religious exemption, essentially 1.8% of the field sales force requested a religious accommodation. Appx. T 56:11-
`57:12.
`13 Id. at 30:13-14.
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`the decision that customer facing employees “could not be accommodated.”14
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`4.04
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`In making the determination to deny employees such as Derek a religious
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`accommodation, Teva entered into no interactive process whatsoever.15 Indeed, no employee was
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`contacted by the Committee,16 and if, as Derek did, a rebuttal to the decision was made, no one at
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`Teva considered its merits and swiftly denied it.17 Indeed, the Committee was a sham, as was the
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`option for customer-facing employees to ever obtain a religious accommodation, because the
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`decision had been made outside of those considering the requests, that it was an undue hardship to
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`accommodate their sincerely held religious beliefs.18 Although, the sincerity of the employees’
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`religious belief was presumed and not questioned,19 no discussion as to any possible religious
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`accommodation was undertaken, even though Teva was granting medical accommodations to
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`customer-facing field employees.20
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`4.05
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`In short, Teva unilaterally and arbitrarily denied all requests for religious exemption
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`based upon an arbitrary “one size fits all” management decision that customer facing employees
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`must be vaccinated and could not be religiously accommodated. No thought was given to
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`alternatives, no investigation into any extenuating facts occurred, and no consideration for the
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`religious freedoms and liberties of Teva’s customer-facing employees was ever extended.21
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`Indeed, the Committee had no discretion to grant a religious exemption to a customer-facing field
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`sales representative.22 In short, Teva essentially spit upon the 18 out of 700 to 1,000 employee’s
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`religious liberties, without a second thought.23
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`14 Oddly, the Committee was not in the business of determining accommodations once the request was granted, but instead, the
`non-customer facing employee was referred to their manager and HR person responsible to determine how to craft the
`accommodation. Id. at 57:3-12; 65:9-22; 66:3-5; 94:24-95:3.
`15 Id. at 61:9-66:15; Appx. B ¶ 14.
`16 Id. at 45:3-46:7; Appx. B ¶ 15.
`17 Id. at 63:3-17; Appx. B ¶ 16.
`18 Id. at 92:7-93:9; 95:4-3; Appx. B ¶ 17.
`19 Id. at 53:5-21; Appx. B ¶ 18.
`20 Appx. Q 19:20-20:6; Appx. B ¶ 19.
`21 Appx. B ¶ 20, 21, 22.
`22 Appx. T 45:20-46:7.
`23 Appx. B ¶23.
`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 14 of 39 PageID #: 781
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`V. ARGUMENTS AND AUTHORITIES
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`5.01 Summary Judgment Standard: A motion for summary judgment must be denied
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`unless there is no genuine issue as to any material fact and applicable law otherwise dictates
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`judgment as a matter of law.24 Moreover, all reasonable doubts must be resolved in favor of the
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`nonmovant and the version of the facts of the case most favorable to the nonmovant must be
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`adopted in deciding the motion. 25"Before finding that no genuine issue for trial exists, the court
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`must first be satisfied that no reasonable trier of fact could find for the non-movant."26 The Court
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`also must (1) ignore the arguments of Teva in their Motion to the extent that Derek’s arguments,
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`supported by the record, conflict with them; (2) the Court must indulge every reasonable inference
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`a jury could make from the record evidence and the reasonable deductions based thereon, in favor
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`of Derek and not Teva, (3) resolve any and all doubts about the existence of a genuine issue of a
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`material fact against Teva and in favor of Derek; and (4) must not weigh the evidence between
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`Derek’s evidence and Teva’s evidence.
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`5.02 Fact Issues Exist as to Each Element of Derek’s Discrimination Claims: Failure
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`to accommodate religious belief is religious discrimination. It is unlawful for an employer to “fail
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`or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
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`with respect to his compensation, terms, conditions, or privileges of employment” because of such
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`individual's religion.27 Employers must show that the burden to accommodate an employee’s
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`religious belief or practice would impose “a burden that is substantial in the overall context of an
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`employer’s business.”28
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`24 Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
`25 Casey Enterprises, Inc. v. American Hardware Mutual Inc. Co., 655 F. 2d 598 (5th Cir. 1981).
`26 Smith v. Thompson, No. 2:96CV159-B-B, 1998 U.S. Dist. LEXIS 1306, at *4-5 (N.D. Miss Jan. 28, 1998)
`27 42 U.S.C. § 2000e-2 (a)(1).
`28 Groff v. DeJoy, 600 U.S. 447, 771(2023) (holding that “undue hardship” within the meaning of Title VII requires
`a showing of more than “de minimis” cost – that is, “that an accommodation would impose some sort of additional
`cost”. Rather, the employer must show the burden of granting an accommodation would result in substantial increased
`costs in relation to the conduct of its particular business.) Id at 470.
`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 15 of 39 PageID #: 782
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`5.03 A fair reading of Groff requires the employer to determine that there is an “undue
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`burden” based on the substantial increased costs, at the time it is considering the request for
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`accommodation. This requirement must be factored into the employer’s decision in determining
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`the employee’s request for accommodation, not later when the employee sues for discrimination,
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`so as to create a post hoc defense to the employer’s failure to accommodate the employee’s
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`religious accommodation request. The reason is that to be fair to the employee, the employer must
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`make the determination of undue burden at the time of the request, so that it is part of the decision.
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`5.04
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`In the instant case, Teva did nothing to determine whether the cost of
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`accommodating Derek’s request was an undue burden at the time of Derek’s request. As Mr.
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`Benitez testified, he was “informed” that customer-facing field personnel “could not be
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`accommodated.” The Committee did not determine such independently. Further, Mr. Rainey
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`testified, as set forth in the previous section, that the cost determination he presented in response
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`to Derek’s request for a Fed. R. Civ. P. 30(b)(6) witness on the issue was only made to “prepare
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`for this deposition”29 and Teva waited until this lawsuit arose to perform the cost determination.
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`5.05 A violation of Section 2000e-2(a)(1) is intentional discrimination, also known as
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`"disparate treatment."30 Hence, a claim of failure to accommodate religion is a claim of religious
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`discrimination by "disparate treatment" because inadequate accommodation intentionally
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`discriminates against a religious practice.31 Additionally, "an employer who acts with the motive
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`of avoiding accommodation may violate Title VII even if [it] has no more than an unsubstantiated
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`suspicion that accommodation would be needed."32 In Abercrombie, the Supreme Court held that
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`Title VII does not limit religious disparate-treatment claims "to only those employer policies that
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`
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`29 Appx. R 39:3 – 41:1.
`30 E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771, 135 S. Ct. 2028, 192 L. Ed. 2d 35 (2015)
`31 See, Id. at 773-75.
`32 Id. at 773.
`Derek Troutman’s Response in Opposition to Teva’s Motion for Summary Judgment
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`Case 6:22-cv-00395-JDK Document 37 Filed 04/09/24 Page 16 of 39 PageID #: 783
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`treat religious practices less favorably than similar secular practices."33 "Title VII does not demand
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`mere neutrality with regard to religious practices — that they be treated no worse than other
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`practices."34 In other words, Title VII gives religious practice "favored treatment, affirmatively
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`obligating employers not to fail or refuse to hire or discharge any individual because of such
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`individual's religious observance and practice."35
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`5.06 To state a prima facie claim of religious discrimination under Title VII for failure
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`to accommodate, Derek must satisfy the following elements: (1) he had a bona fide religious belief;
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`(2) the belief conflicted with a requirement of his employment; (3) his employer was informed of
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`his belief; and (4) he suffered an adverse employment action for failing to comply with the
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`conflicting employment requirement.36 Derek can satisfy each element of this standard of proof
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`by raising a reasonable fact question on each element.
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`5.07 Derek Had a Bona Fide Religious Belief: Teva claims in their brief that Derek
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`cannot establish the first element, alleging for the first time (as highlighted, supra), that Derek’s
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`beliefs were based on secular considerations and not on religious beliefs.37 Yet the strong
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`evidence, as developed and presented, contradicts this allegation. Derek has presented on several
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`occasions evidence of his sincerely held religious beliefs against obtaining the vaccination, as
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`found in his request for accommodation, as well as his response to Teva’s denial of his request for
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`a religious accommodation. Regardless, of his learning about secular considerations associated
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`with taking the vaccination he may have researched, it does not eliminate, nor replace, Derek’s
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`
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`33 Id. at 775.
`34 Id.
`35 Id. (internal marks omitted). That an employer refuses to accommodate any religious belief also fails Title VII. A policy that
`unlawfully discriminates against religious adherents — because they, e.g., request accommodations for myriad sincerely held
`beliefs — is not permissible just because it is indiscriminate in its discrimination. That may well be the case here, as Teva's
`accommodation framework amounts to a predetermined adverse employment action in response to any employee with customer-
`facing responsibilities, who could not receive, or objected to receiving, the COVID-19 vaccine due to, in part, a sincerely held
`religious belief. That language is broad enough to encompass any objection, for any reason, and fails the high threshold required
`by Abercrombie. McNeill v. Tyson Fresh Meats, Inc., 2023 U.S. Dist. LEXIS 219122 *; 2023 WL 8532408 (N.D. Tex. Dec. 8,
`2023).
`36 Davis v. Fort Bend Ctny., 765 F.3d 480, 485 (5th Cir. 2018).
`37 Appx. B ¶ 90.
`Derek Troutman’s Response in Opposition to Teva’s M