`ORDER - 1
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`SCOTT CARLSON, TYLER PARNELL,
`ALISON HALLIFAX, SHARON L.
`DAVIS, BRIAN ROBILLARD, JOSH
`FREI, MATTHEW PETERSON, and
`ARTEM TETERIN,
`
` Plaintiffs,
` v.
`CITY OF REDMOND,
`
` Defendant.
`CASE NO. 2:22-cv-01739
`ORDER
`1. INTRODUCTION
`Eight former Redmond firefighters sued the City of Redmond (“City”) after
`being terminated for refusing COVID-19 vaccinations on religious grounds. They
`argued the City should have let them continue working with masking and testing
`rather than requiring vaccination.
`The Court grants the City’s motion for summary judgment and dismisses all
`claims. Dkt. No. 86. As firefighters, Plaintiffs were required to maintain EMT or
`paramedic certifications and routinely provided emergency medical care to
`patients—including vulnerable individuals—in close quarters. Allowing them to
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 1 of 35
`
`
`
`
`
`
`
`
`ORDER - 2
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`continue this work unvaccinated would have imposed substantial costs on the City,
`including health risks to coworkers and patients, potential COVID outbreaks that
`could cripple emergency response, and significant operational burdens. The
`firefighters’ retaliation claims also fail because their terminations resulted from
`non-compliance with a neutrally applied vaccine mandate, not from requesting
`religious accommodations.
`The Court also denies several other pending motions from both parties,
`including motions to strike evidence, to compel depositions, and to exclude expert
`testimony, and Plaintiffs’ motion for summary judgment. Dkt. Nos. 110, 111, 114,
`117, 123.
`2. BACKGROUND
`2.1 The COVID-19 pandemic and the FDA’s authorization of vaccines
`against COVID-19.
`In early 2020, the COVID-19 pandemic emerged as a global public health
`crisis. On January 20, 2020, the U.S. Centers for Disease Control and Prevention
`(CDC) and the Washington State Department of Health (DOH) announced what
`was then believed to be the first confirmed case of COVID-19 in the United States
`in Snohomish County, Washington. Dkt. No. 89 ¶ 9. On January 30, 2020, the
`World Health Organization (WHO) declared the COVID-19 outbreak a “public
`health emergency of international concern.” Id. ¶ 10. The next day, then-U.S.
`Health and Human Services Secretary Alex M. Azar II declared a public health
`emergency. Id. Over the course of 2020, public measures designed to limit the
`spread of COVID-19 were implemented throughout the country (e.g., “lockdown” or
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 2 of 35
`
`
`
`
`
`
`
`
`ORDER - 3
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`“stay home” policies, masking and testing requirements, and social distancing
`measures). Id. ¶ 11. Even with these public health measures in place,
`hospitalization rates and death rates remained high. Id. ¶¶ 8, 12, 34.
`Scientists began developing COVID-19 vaccines in January 2020. Dkt. No. 89
`¶ 15. By December 2020, the Food and Drug Administration (FDA) had issued
`emergency use authorizations for the Pfizer and BioNTech vaccine (“Pfizer vaccine”)
`and Moderna TX, Inc. vaccine (“Moderna vaccine”). Id. ¶¶ 16–17. Clinical trials
`demonstrated that both vaccines were about 95% effective at preventing
`symptomatic COVID-19 infections. Id. ¶¶ 23–24. Researchers found that COVID-19
`vaccines were the best tool to prevent transmission and to reduce the risk of post-
`COVID symptoms. Id. ¶ 32. On August 23, 2021, the FDA approved the Pfizer
`vaccine for individuals 16-years old and older. Id. ¶ 28.
`By Summer 2021, the Delta variant of COVID-19 was surging in Washington
`State. The Delta variant was more than twice as infectious as earlier strains. Id.
`¶ 59. In late August 2021, COVID-19 hospitalizations in Washington reached an all-
`time high, and unvaccinated individuals between the ages of 16 and 64 were ten
`times more likely to be hospitalized than vaccinated individuals. Id. By September
`2021, 95% of hospitalized COVID-19 patients in Washington were unvaccinated. Id.
`It was in this context that Washington’s vaccine mandate for healthcare workers
`took effect.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 3 of 35
`
`
`
`
`
`
`
`
`ORDER - 4
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`2.2 The state-wide vaccine mandate and the City of Redmond’s response.
`On August 9, 2021, Washington Governor Jay Inslee issued Proclamation 21-
`14 (“Proclamation”), requiring Washington healthcare workers—including
`firefighters who provide emergency medical services—to be vaccinated against
`COVID-19 by October 18, 2021. Dkt. No. 71-1 at 44–52. Soon after the
`Proclamation, Redmond Fire Department Chief Adrian Sheppard issued a “special
`notice” to firefighters informing them that the City would be following the state’s
`directive and that, absent an exemption for religious or medical reasons,
`“vaccinations will be a condition of your employment after October 18, 2021.” Dkt.
`No. 71-1 at 54.
`In late September, the City received additional guidance from public health
`officials. On September 22, 2021, the Washington Department of Health issued a
`report recommending vaccination to reduce COVID-19 transmission. Dkt. No. 71-1
`at 2–19. The next day, Dr. Thomas Rea, Medical Program Director of King County
`EMS, and Dr. Michael Sayre, Medical Director of the Seattle Fire Department,
`recommended that “EMS agencies require full vaccination against SARS-CoV-2 in
`order to provide direct patient care.” Dkt. No. 121-1 at 2–3.
`On September 30, 2021, City of Redmond Mayor Angela Birney issued an
`Executive Order requiring all Redmond firefighters to be vaccinated by October 18,
`2021, citing the Governor’s Proclamation and the public health recommendations.
`Dkt. No. 72-1 at 2. The Executive Order terminated previously approved
`accommodations that had permitted unvaccinated firefighters to work with masking
`and testing. Id. at 3.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 4 of 35
`
`
`
`
`
`
`
`
`ORDER - 5
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`That same day, the City and the firefighters’ union—the International
`Association of Firefighters, Local #2829 (“Union”)—signed a Letter of
`Understanding (“LOU”) about the new vaccine mandate. Dkt. No. 72-1 at 5. The
`LOU offered unvaccinated employees with two options: (1) an extension for time to
`vaccinate or (2) voluntary separation. Id. at 6. The LOU did not identify any
`accommodation positions.
`On October 20, 2021, the City and the Union signed a Letter of Agreement
`(“LOA”) identifying five day-shift positions that could accommodate unvaccinated
`firefighters: Training Battalion Chief, Training Captain, Training Lieutenant,
`Training Firefighter, and a Telestaff position. Dkt. No. 120-1 at 24. On December
`21, 2021, the City informed Plaintiffs that assignments in the LOA would be filled
`depending on seniority with those available to start, including vaccinated and
`unvaccinated staff. Dkt. No. 71-1 146–180. The LOA also informed employees that
`the five assignments would include a three percent reduction in pay because they
`would not be performing work covered by an EMT certification. Dkt. No. 72-1 at 10.
`On November 15, 2021, a revised LOA reduced the available positions from five to
`four. Dkt. Nos. 106 ¶¶ 24–25; 72-1 at 9.
`2.3 Plaintiffs were all Redmond firefighters who provided direct patient
`care as part of their job duties.
`Plaintiffs are Scott Carlson, Tyler Parnell, Brian Robillard, Alison Hallifax,
`Sharon L. Davis, Matthew Peterson, Artem Teterin, and Josh Frei. They were all
`Redmond firefighters in 2021 and members of the Union. Dkt. No. 71 ¶ 10. As
`firefighters, they were required to be credentialed as emergency medical technicians
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 5 of 35
`
`
`
`
`
`
`
`
`ORDER - 6
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`(EMTs) or paramedics and were subject to the Proclamation as healthcare workers.
`Dkt. No. 72-1 at 2.
`As firefighters, Plaintiffs’ job duties included, among other things,
`“administer[ing] first aid to the sick and injured”; “assist[ing] in the emergency
`treatment or care of ill or injured patients”; using “intravenous therapy, drug
`therapy, respiratory therapy, manual or automatic defibrillator or other equipment
`or procedures to provide emergency medical care”; and “transport[ing] sick or
`injured patients to hospitals and other medical facilities when need arises.” Dkt.
`No. 71-1 at 65–68. Firefighters are required to be knowledgeable of “first aid and
`emergency care.” Id. at 67. They are also required to perform in working conditions
`that are hazardous and include “contagious disease and terminal illnesses.” Id.
`2.4 Shortly after the special notice was issued, Plaintiffs requested
`exemptions from the vaccine mandate, citing their religious
`concerns with the COVID-19 vaccines.
`Following Chief Sheppard’s August 20, 2021, special notice, each Plaintiff
`requested a religious accommodation from the vaccine mandate. Dkt. No. 71-1 at
`71–103. City of Redmond Human Resources Director Cathryn Laird approved the
`requests between September 10 and September 20, 2021. Id.
`Several Plaintiffs objected to the vaccines because they were developed or
`tested using cell lines derived from aborted fetal tissue, which conflicted with their
`religious beliefs opposing abortion. Dkt. Nos. 100-1 at 3; 101-1 at 2; 105-1 at 12.
`Others described their belief that their bodies are temples of the Holy Spirit and
`that receiving the vaccine would violate their duty to honor God with their bodies.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 6 of 35
`
`
`
`
`
`
`
`
`ORDER - 7
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`Dkt. Nos. 102-1; 103 ¶ 16. The City does not challenge the sincerity of Plaintiffs’
`religious beliefs. Dkt. No. 117 at 11.
`As initially approved, Plaintiffs’ exemptions allowed them to continue
`working with patients so long as they tested and masked. See Dkt. Nos. 99 ¶ 28; 100
`¶ 8; 101 ¶¶ 14–15; 102 ¶¶ 24, 26; 103 ¶ 15; 104 ¶¶ 10–11; 105 ¶ 18; 106 ¶ 10. Chief
`Sheppard disagreed with this approach—he believed the Proclamation prohibited
`unvaccinated firefighters from working in patient-facing positions, and he shared
`this view with City leadership. Dkt. No. 109-5 at 2, 26–27 (Sheppard Tr. at 164:13-
`23, 179:23-181:14); Dkt. No. 71-1 at 59–60.
`As discussed above, the City received additional public health guidance in
`late September 2021—including the Department of Health report and the Rea-
`Sayre recommendation—that reinforced Chief Sheppard’s view that the Governor’s
`Proclamation prohibited unvaccinated firefighters from providing direct patient
`care. Dkt. No. 71-1 at 57–60. In light of this guidance, the City reconsidered its
`initial approach. Id. at 60. On September 30, 2021, Mayor Birney announced that
`the previously approved masking-and-testing accommodations would no longer be
`permitted for firefighters in patient-facing roles. Dkt. No. 72-1 at 2. The Mayor’s
`September 30 Executive Order formally terminated all prior accommodations. Id. at
`3. As a result, Plaintiffs faced the October 18 deadline without the accommodation
`they had been granted, and they would need to pursue the options set forth in the
`LOU or seek one of the positions identified in the LOA.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 7 of 35
`
`
`
`
`
`
`
`
`ORDER - 8
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`2.5 Plaintiffs take family medical leave before the vaccination mandate
`takes effect.
`As the October 18, 2021, vaccine mandate deadline approached, all but one of
`the Plaintiffs applied for leave under the Family and Medical Leave Act (FMLA).
`Dkt. No. 71-1 at 105–132. Plaintiff Teterin did not take FMLA leave. He met with
`Chief Sheppard and HR Director Laird on October 13, 2021, for an interactive
`meeting. Dkt. No. 101 ¶ 19. On October 18, Teterin rejected the options presented in
`the LOU, and the City terminated his employment effective November 2, 2021. Id.
`¶¶ 22, 24; Dkt. No. 71-1 at 181–185.
`On October 22, 2021—two days after the LOA was signed—HR Analyst Tiah
`Branson emailed six Plaintiffs (Carlson, Hallifax, Robillard, Parnell, Frei, and
`Peterson) to notify them of the LOA positions and request that they indicate their
`interest by October 31, 2021. Dkt. No. 120-1 at 14–22. Davis never received this
`email. Dkt. No. 99 ¶ 33. Defendants include in the record an email sent from
`Branson to Teterin a few days after his termination informing him of the
`assignments. Dkt. No. 120-1 at 13. The six Plaintiffs who received the email timely
`expressed interest in the positions. Dkt. Nos. 100 ¶ 14; 102 ¶ 36; 103 ¶ 24; 104 ¶ 17;
`105 ¶ 29; 106 ¶ 23.
`On December 21, 2021, the City sent letters to Plaintiffs explaining how it
`intended to fill the LOA positions. The City explained it had not finalized
`assignments for employees on leave because it wanted to “ensure we uphold both
`your leave of absence rights as well as the terms and conditions listed in the [LOA].”
`Dkt. Nos. 100 ¶ 15; 102 ¶ 38; 103 ¶ 31; 104-1 at 27; 105 ¶ 35; 106 ¶ 27. The letters
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 8 of 35
`
`
`
`
`
`
`
`
`ORDER - 9
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`stated that the City “presently intends to fill the designated current assignments by
`seniority with those staff who are available to work….” Id.; Dkt. No. 71-1 at 148–
`149. Plaintiffs were told: “we will discuss whether any accommodation assignments
`are available to you in light of your seniority as we get closer to your return date.”
`See, e.g., Dkt. No. 104-1 at 27.
`Most Plaintiffs exhausted their FMLA leave in late December 2021 or early
`January 2022 and transitioned to Washington Paid Family and Medical Leave
`(“PFML”). Dkt. No. 71-1 at 134–144. Their PFML leaves were approved through
`late March and early April 2022. Id. Davis did not transition to PFML; she had
`elected to retire effective January 15, 2022. Dkt. No. 99-1 at 1.
`2.6 Plaintiffs Carlson, Frei, Hallifax, Parnell, Peterson, and Robillard
`return to work and are terminated.
`In March and April 2022, Plaintiffs Carlson, Frei, Hallifax, Parnell, Peterson,
`and Robillard received medical clearance to return to work. Dkt. No. 71 at 105–132.
`During their leave, the vaccine-exempt positions created under the LOA had been
`filled. Id. at 146–185. Although Plaintiffs expressed interest in the LOA-created
`positions, none of them ever applied for one of these positions. Dkt. No. 119 ¶ 15.
`After Plaintiffs received medical clearance to return to work, the City held
`interactive meetings with each Plaintiff, except Scott Carlson, to discuss potential
`accommodations such as applying for non-Fire positions. Dkt. Nos. 100 ¶ 23; 102 ¶
`42; 103 ¶ 45; 104 ¶ 22; 105 ¶ 44; 106 ¶ 37. The City informed Plaintiffs during these
`interactive meetings that no Fire Department accommodation positions remained
`available and that accommodating unvaccinated firefighters would present an
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 9 of 35
`
`
`
`
`
`
`
`
`ORDER - 10
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`undue hardship to the Fire Department. Dkt. No. 71-1 at 146–185. The City then
`initiated the termination process. Id.
`In April and May 2022, Chief Sheppard issued Notices of Termination to
`Carlson, Frei, Hallifax, Parnell, Peterson, and Robillard. Dkt. No. 71-1 at 146–185.
`He considered multiple factors in deciding to terminate Plaintiffs, “including the
`nature of your duties, whether you work outdoors or indoors, work in a solitary or
`group work setting, or have close contact with other employees or members of the
`public (especially medically vulnerable individuals) whose vaccination status may
`be unknown or who may be ineligible for the vaccine.” Id. Chief Sheppard also
`considered “the number of employees at the Lieutenant rank who are seeking a
`similar accommodation, i.e., the cumulative cost or burden on the city” and the
`“safety concerns, including comparing recent case data in King County, to the case
`data on October 18, 2021 when Proclamation 21-14 went into effect; outcomes by
`vaccination status for King County; and research and guidance from health
`departments and the Centers for Disease Control and Prevention regarding
`reinfections.” Id.
`2.7 Procedural background.
`Plaintiffs filed their initial complaint in December 2022. Dkt. No. 1. As
`additional firefighters received right-to-sue letters from the U.S. Equal Employment
`Opportunity Commission, Plaintiffs twice amended their complaint to add parties.
`Dkt. Nos. 22; 25. The operative Second Amended Complaint was filed on August 7,
`2024. Dkt. No. 58. Plaintiffs assert claims under Title VII of the Civil Rights Act of
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 10 of 35
`
`
`
`
`
`
`
`
`ORDER - 11
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`1964, 42 U.S.C. § 2000e et seq., and the Washington Law Against Discrimination
`(WLAD), RCW 49.60 et seq., for failure to accommodate Plaintiffs’ religious beliefs
`and retaliation. Plaintiffs also assert claims for breach of the collective bargaining
`agreement. Id.
`On January 31, 2025, the City filed a Motion for Summary Judgment. Dkt.
`No. 69. Plaintiffs moved to defer or deny that motion under Federal Rule of Civil
`Procedure 56(d), arguing they had not yet had an opportunity to finish fact
`discovery. Dkt. No. 75. On February 19, 2025, the Court agreed and denied the
`City’s motion without prejudice to allow the parties to complete discovery and, if
`appropriate, cross-move for summary judgment. Dkt. No. 76.
`After the close of discovery, the City filed its renewed Motion for Summary
`Judgment on April 14, 2025. Dkt. No. 86. On April 29, 2025, Plaintiffs filed a
`Combined Motion for Partial Summary Judgment and Opposition to the City’s
`Motion. Dkt. No. 111. Plaintiffs also moved to strike certain of the City's exhibits,
`Dkt. No. 110, and a Motion to Compel 30(b)(6) Depositions and Request for
`Sanctions, Dkt. No. 114. On May 12, 2025, Plaintiffs filed a Daubert motion to
`exclude the testimony of the City’s expert, Dr. John Lynch. Dkt. No. 123. The City
`filed its Response and Reply, along with a Cross-Motion to Strike, on May 12, 2025.
`Dkt. No. 117. Plaintiffs filed their Reply on May 19, 2025. Dkt. No. 127. The
`motions are now fully briefed and ripe for decision.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 11 of 35
`
`
`
`
`
`
`
`
`ORDER - 12
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`3. PRELIMINARY MATTERS
`Before turning to the merits, the Court addresses several threshold matters
`raised by the parties: cross-motions to strike evidence, Plaintiffs’ motion to compel
`Rule 30(b)(6) testimony, and Plaintiffs’ Daubert motion to exclude the testimony of
`Defendant’s expert, Dr. John Lynch.
`3.1 The Court denies the parties’ cross-motions to strike.
`The Court first addresses the parties’ cross-motions to strike. To begin,
`Plaintiffs’ separately filed Motion to Strike, Dkt. No. 110, violates Local Civil Rule
`7(g), which provides that requests to strike material “shall not be presented in a
`separate motion to strike, but shall instead be included in the responsive brief.”
`Plaintiffs offer no justification for disregarding this rule. Plaintiffs’ Motion to Strike
`is thus denied as procedurally improper. See Robinson v. Univ. of Wash., No. C15-
`1071RAJ, 2016 WL 4218399, at *1 n.2 (W.D. Wash. Aug. 9, 2016) (failure to follow
`LCR 7(g) is an independent ground to deny a motion to strike), aff’d, 691 F. App’x
`882 (9th Cir. 2017). The Court nonetheless considers the substance of Plaintiffs’
`objections as presented in their combined briefing.
`Neither side’s objections have merit. At the summary judgment stage, the
`Court does not focus on the admissibility of evidence in its present form, but rather
`on whether the evidence could be presented in an admissible form at trial. Fraser v.
`Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see Fed. R. Civ. P. 56(c)(2).
`Plaintiffs challenge Christie Declaration Exhibits 1 and 2—a Johns Hopkins
`article and a Presidential proclamation on COVID-19 deaths—as irrelevant because
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 12 of 35
`
`
`
`
`
`
`
`
`ORDER - 13
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`Plaintiffs “do not dispute” the pandemic’s severity. Dkt. No. 110 at 2. This
`misunderstands relevance. That a fact is undisputed does not render evidence of it
`inadmissible; these documents provide context for the City’s decision-making and
`are subject to judicial notice. Fed. R. Evid. 201.
`Plaintiffs also object to the Rea-Sayre letter because Chief Sheppard
`“solicited” it. Dkt. No. 110 at 3. But the letter is not offered to prove the truth of its
`medical recommendations; it is offered to show what guidance the City received—a
`non-hearsay purpose. Fed. R. Evid. 801(c)(2).
`Plaintiffs’ objection to the “whereas” clauses in Governor Inslee’s
`Proclamation borders on frivolous. Plaintiffs ask the Court to redact a governor’s
`emergency proclamation to excise its prefatory recitals as “hearsay.” Dkt. No. 110 at
`3. The recitals provide the legal and factual basis for the government action at issue
`here and fall squarely within the public records exception. Fed. R. Evid. 803(8).
`Plaintiffs’ remaining objections fare no better. Their challenge to Chief
`Sheppard’s declaration from a related case, Dkt. No. 110 at 3, identifies no specific
`inadmissible statement. Their objection to the Civil Service Commission
`proceedings, Dkt. No. 110 at 4, is moot given their abandonment of the breach of
`contract claim. Dkt. No. 127 at 4.
`Turning to Defendant’s objections, the City moves to strike Plaintiffs’ expert
`Dr. Michael Mina’s declaration in its entirety, arguing it impermissibly expands on
`his timely disclosed expert report and is really a belated rebuttal to Defense expert
`Dr. Lynch’s report. Dkt. No. 117 at 5–8. Because Dr. Mina’s timely disclosed expert
`report is not in the summary judgment record, the Court cannot determine the
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 13 of 35
`
`
`
`
`
`
`
`
`ORDER - 14
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`extent to which Dr. Mina’s declaration differs from his timely disclosed expert
`report, if at all. The Court is troubled by the allegation that Plaintiffs introduced
`untimely expert opinions, but this issue is better resolved at trial, where
`appropriate limits can be enforced. For purposes of this motion, the Court declines
`to strike the declaration.
`Finally, the City objects to two other declarations—those of Ben Norton and
`Kelsey Allen-Wesley—as containing improper expert opinion testimony and
`speculation about the efficacy of accommodations. Dkt. Nos. 98; 107. The Court does
`not rely on these declarations as expert testimony and has disregarded any
`inadmissible hearsay or speculation in reaching its conclusions.
`Both parties’ motions to strike are DENIED. Dkt. Nos. 110; 117.
`3.2 Plaintiffs’ motion to compel Rule 30(b)(6) testimony is denied.
`Plaintiffs also move to compel additional Rule 30(b)(6) testimony, to dismiss
`or preclude the City’s undue hardship defense, and for monetary sanctions. Dkt. No.
`114.
`First, Plaintiffs contend the City waived its undue hardship defense by
`failing to plead it and through discovery abuse. The Court disagrees. The City
`asserted undue hardship in its first summary judgment motion filed January 31,
`2025. Dkt. No. 69 at 13. When Plaintiffs raised concerns about conducting discovery
`on this defense, the Court extended the discovery deadline. Dkt. No. 78. Plaintiffs
`cannot credibly claim lack of notice or opportunity. The waiver argument fails.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 14 of 35
`
`
`
`
`
`
`
`
`ORDER - 15
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`Next, the Court considers whether the City satisfied its Rule 30(b)(6)
`obligations. A party must prepare its Rule 30(b)(6) designee to testify competently
`on the noticed topics with “all the relevant information known or reasonably
`available to the entity[.]” Corker v. Costco Wholesale Corp., No. C19-0290-RSL, 2022
`WL 92979, at *2 (W.D. Wash. Jan. 10, 2022) (citing La. Pac. Corp. v. Money Mkt. 1
`Institutional Inv. Dealer, 285 F.R.D. 481, 487 (N.D. Cal. 2012)). If a designee cannot
`answer fully, the organization must promptly designate a new witness. O.H. v.
`Secret Harbor, No. 2:23-CV-00060-JNW, 2024 WL 4605241, at *2–3 (W.D. Wash.
`Oct. 29, 2024).
`The record reflects a troubling pattern. The City withdrew Chief Sheppard’s
`designation three days before his scheduled 30(b)(6) deposition—after obtaining a
`month-long extension to prepare him—and substituted Jim Whitney, who then
`testified he could not speak to Topics 13, 19, 20, or 21. Dkt. No. 115 ¶¶ 16, 18; Dkt.
`No. 129-2 at 5–6 (Whitney Tr. at 19:14–20:22). HR Director Laird similarly
`disclaimed competence on multiple topics despite extensive preparation sessions
`with counsel. Dkt. No. 115 ¶ 9. Also troubling is the City’s current offer to be bound
`by Chief Sheppard’s testimony. Courts recognize an organization may satisfy Rule
`30(b)(6) by adopting prior testimony. Corker, 2022 WL 92979, at *2. But defense
`counsel told Plaintiffs before Sheppard’s deposition that he was unprepared on the
`30(b)(6) topics, leading Plaintiffs to limit their questioning. Dkt. No. 115 ¶ 6; Dkt.
`No. 129 at 4–5. A party cannot discourage questions by saying a witness is not
`ready, only to then turn around and call the resulting testimony comprehensive.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 15 of 35
`
`
`
`
`
`
`
`
`ORDER - 16
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`Nevertheless, viewing the record as a whole, the Court finds substantial
`compliance. The City produced four witnesses—Laird, Whitney, Sheppard, and
`Mayor Birney—who collectively testified on the noticed topics, including the City’s
`reasons for the vaccine mandate, the rescission of provisional accommodations, and
`the accommodation assignment process. Dkt. No. 125 at 3–10. The City agrees to be
`bound by Birney’s and Sheppard’s testimony as organizational admissions. Dkt. No.
`125 at 14. Given this adoption, the prior discovery extension, and the totality of
`testimony obtained, Plaintiffs have not shown sufficient prejudice to warrant
`additional depositions.
`The Court is particularly troubled by the City’s conduct related to Topic 19,
`which concerns the factual basis for its undue hardship defense. The City claimed
`that this topic sought information “neither relevant nor proportionate,” Dkt. No.
`126-1 at 96, while at the same time moving for summary judgment on that very
`defense. This is difficult to reconcile. But dismissal of an affirmative defense is a
`severe sanction reserved for bad faith or willfulness, Conn. Gen. Life Ins. Co. v. New
`Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007), which the Court does
`not find here.
`Finally, the Court addresses Plaintiffs’ request for $7,325 in fees. Under Rule
`37(a)(5), when a motion to compel is denied, the Court may award expenses to the
`opposing party unless the motion was substantially justified. Plaintiffs’ motion was
`substantially justified given the City’s conduct: witnesses who disclaimed
`competence on the record, last-minute substitutions, and inconsistent positions on
`relevant topics. A reasonable litigant would have questioned whether the City
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 16 of 35
`
`
`
`
`
`
`
`
`ORDER - 17
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`fulfilled its obligations. At the same time, the City substantially complied when the
`record is viewed in full, and its offer to be bound by witness testimony was a
`reasonable remedial measure. Thus, each party will bear its own costs.
`Accordingly, Plaintiffs’ Motion to Compel is DENIED. Dkt. No. 114. This
`ruling is conditioned on the City’s representation that it will be bound by the
`testimony of Mayor Birney and Chief Sheppard as Rule 30(b)(6) organizational
`testimony.
`3.3 The Court denies Plaintiffs’ motion to exclude Dr. Lynch.
`The Court previously terminated Plaintiffs’ motion to exclude Dr. John Lynch
`pending resolution of the summary judgment motions, Dkt. No. 148, but now finds
`it necessary to rule on the motion to fully address the issues on summary judgment.
`Plaintiffs challenge Dr. Lynch’s qualifications, arguing he lacks expertise in
`masking and testing, that his opinions are irrelevant because Defendant allegedly
`lacks an undue hardship defense, and that his method is unreliable because he does
`not conduct original research. Dkt. No. 123 at 2, 5–6, 8. These arguments are
`unavailing.
`Dr. Lynch is a board-certified physician in infectious disease, Professor of
`Medicine at the University of Washington, and Associate Medical Director of
`Harborview Medical Center. Dkt. No. 89 ¶ 2. He led UW Medicine’s COVID-19
`Emergency Operations Center from February 2020 through December 2023,
`overseeing PPE and testing policies, and has authored 82 peer-reviewed
`publications, including 15 on COVID-19. Id. ¶ 3; Dkt. No. 89-1 at 10. Courts in this
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 17 of 35
`
`
`
`
`
`
`
`
`ORDER - 18
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`District—and the Ninth Circuit—have repeatedly found Dr. Lynch qualified to offer
`expert testimony on infectious diseases and COVID-19 mitigation strategies. See
`Petersen v. Snohomish Reg’l Fire & Rescue, No. C22-1674, 2024 WL 278973, at *6
`n.13 (W.D. Wash. Jan. 25, 2024), aff’d, 150 F.4th 1211 (9th Cir. Sept. 2, 2025); Rosa
`v. City of Issaquah, No. 2:24-CV-01673-TL, 2025 WL 2645642, at *4–8 (W.D. Wash.
`Sept. 15, 2025). This Court, too, has relied on Dr. Lynch’s expert testimony in
`similar COVID-19 vaccine mandate cases. See Eshom v. King County, No. 2:23-CV-
`00028-JNW, 2025 WL 3187479, at *8 (W.D. Wash. Nov. 14, 2025).
`Plaintiffs’ reliability challenge fares no better. Medical experts commonly
`base their opinions on clinical experience, peer-reviewed literature, and public
`health guidance—precisely the materials Dr. Lynch relies on here. See Primiano v.
`Cook, 598 F.3d 558, 565 (9th Cir. 2010) (the reliability inquiry for physician
`testimony must be “flexible” and need not require original research). The Ninth
`Circuit has explained that expert testimony is reliable if the knowledge underlying
`it has a reliable basis in the knowledge and experience of the relevant discipline.
`United States v. Sandoval-Mendoza, 472 F.3d 645, 654–55 (9th Cir. 2006). Dr.
`Lynch’s opinions are grounded in decades of clinical experience, extensive review of
`scientific literature, and his direct involvement in the public health response to
`COVID-19. If Plaintiffs wish to challenge what Dr. Lynch failed to consider or
`address, such critiques go to weight and credibility—subjects for cross-
`examination—not admissibility.
`Accordingly, Plaintiffs’ motion to exclude Dr. Lynch is DENIED. Dkt. No.
`123.
`Case 2:22-cv-01739-JNW Document 157 Filed 12/05/25 Page 18 of 35
`
`
`
`
`
`
`
`
`ORDER - 19
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`4. DISCUSSION
`4.1 Legal standard.
`Summary judgment is proper only if the pleadings, the discovery and
`disclosure materials on file, and any affidavits show that there is no genuine
`dispute as to any material fact and that the movant is entitled to judgment as a
`matter of law. Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a
`matter of law when the nonmoving party fails to make a sufficient showing on an