Ashcroft v. Southern California Permanente Medical Group

• Court: District Court, S.D. California
• Decided: January 22, 2025
• Docket: 3:24-cv-00035
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 SHARRY ASHCROFT, Case No. 24-cv-0035-MMA-MMP

14 Plaintiff, ORDER GRANTING DEFENDANT’S 15 v. MOTION TO DISMISS SECOND AMENDED COMPLAINT 16 SOUTHERN CALIFORNIA 17 PERMANENTE MEDICAL GROUP, [Doc. No. 25] et al., 18 Defendants. 19 20 21 22 On October 31, 2024, Defendant Southern California Permanente Medical Group 23 (“Defendant”), filed a motion to dismiss Plaintiff Sherry Ashcroft’s (“Plaintiff”) second 24 amended complaint. Doc. No. 25. Plaintiff filed a response in opposition, to which 25 Defendant replied. Doc Nos. 26–27. Pursuant to Federal Rule of Civil Procedure 78(b) 26 and Civil Local Rule 7.1.d.1, the Court took this matter under submission on December 27 10, 2024. Doc. No. 28. For the reasons herein, the Court GRANTS Defendant’s motion 28 and DISMISSES Plaintiff’s second amended complaint. 1 I. BACKGROUND 2 Defendant, a private health care organization, employed Plaintiff as an office 3 assistant. Doc. No. 24 (“SAC”) ¶¶ 3–4. In early August 2021, following the COVID-19 4 pandemic outbreak, Defendant issued a mandate requiring that all employees receive 5 COVID-19 vaccinations before September 31, 2021, or otherwise obtain a medical or 6 religious exemption. Id. ¶¶ 7–8. Plaintiff “is a follower of the Christian faith” who 7 believes “that her body belongs to God and is a temple of the Holy Spirit” that “it is 8 against [her] religious beliefs to ingest or inject her body with possible harmful 9 substances” and that her “[d]ue to her pro-life beliefs, [her] faith strongly opposes 10 injecting her body with the COVID-19 vaccine[]” as she believes that the manufacturers 11 of the vaccine use aborted fetal tissue, the lining of aborted fetal tissue, or both in 12 producing the vaccine. Id. ¶¶ 8–11. While she was unwilling to receive the COVID-19 13 vaccination, she was “willing to adhere to safety protocols, such as regular testing and 14 masking.” Id. ¶ 16. 15 On previous occasions, Plaintiff provided Defendant “religious based declinations 16 for the flu and tetanus vaccinations, which have been granted.” Id. ¶ 12. Accordingly, 17 Plaintiff requested a religious exemption form for Defendant’s COVID-19 vaccine 18 requirement policy in August 2021. Id. ¶ 13. To assist her in this effort, Plaintiff “us[ed] 19 her own words as well as language from a template.” Id ¶ 14. On or around 20 August 31, 2021, Defendant provisionally approved her exemption request. Id. ¶ 17. 21 However, on or around October 12, 2021, Defendant requested additional information 22 from Plaintiff, expressing concern for use of templates and “chat groups” among its 23 employees, though Plaintiff was never involved in any such groups. Id. ¶ 18–19. 24 The questions Defendant posed to Plaintiff in its request, and Plaintiff’s answers 25 submitted on or around October 15, 2021, are as follows: 26

27 1 Reviewing Defendant’s motion to dismiss, the Court accepts as true all facts alleged in the amended complaint and construes them in the light most favorable to Plaintiff. See Snyder & Assocs. Acquisitions 28 1 [1.] [Q] Have you ever received a vaccination or immunization as an adult? If so, 2 when: How is the COVID-19 vaccine different[?] 3 [A] Yes, but while I have had vaccines in the past, my views have changed. 4 My religious convictions no longer allow me to defile my body in a way that 5 modifies the design of my immune system. I have declined vaccines for a number of years due to my sincerely held religious beliefs. 6

7 [2.] [Q] What else besides the COVID-19 vaccine do you refuse to put in your 8 body as a result of your religious belief? 9 [A] I refuse to put anything into my body which goes against my sincerely 10 held religious beliefs. That includes any vaccine which alters my God given 11 immune system.

12 [3.] 13 [Q] Have you put this belief into practice in any other areas of your life?

14 [A] My sincerely held religious beliefs are put into practice every day. All 15 that I do, is done to glorify God.

16 [4.] 17 [Q] Have you ever taken another vaccine or medication as an adult? (Please answer yes or no. We are not asking you to tell us what medications you have 18 taken and why you took them.) If so: 19 [A] Yes, but I was not aware then that by doing so, it was a sin to my soul. I 20 do not take anything that is against my sincerely held religious beliefs. 21 [5.] 22 [Q] If you have taken other vaccines or medications knowing that they 23 involved the use of fetal stems in some way: Please explain why receiving them did not violate your sincerely held religious beliefs. 24

25 [A] I have NEVER knowingly taken anything which included those substances. 26

27 28 1 [6.] [Q] If you have taken other vaccines or medication but do not know whether 2 they involved the use of fetal stem cells in any way: 3 [A] I have never knowingly taken anything which included those substances. 4

5 [7.] [Q] Describe anything you did before taking them to find out whether they 6 involved the use of fetal stem cells in any way. Did taking them violate your 7 sincerely held religious belief?

8 [A] I am not aware that I have taken anything which contained those 9 substances.

10 [8.] 11 [Q] If not, why not? If so, why were you willing to violate your belief as to them but not as to the COVID-19 vaccine? 12

13 [A] All vaccines are against my sincerely held religious beliefs and to take them would be against my God given conscience. 14

15 [9.] [Q] Please resubmit your request for accommodation in your own words 16 without using template or stock language from the internet or other sources. 17 [A] I have declined vaccines and will continue to do so due to my sincerely 18 held religious beliefs. My body is a temple of the Holy Spirit and it is against 19 my religious creed to defile my body with a vaccine that alters my God given immune system. 20

21 SAC ¶ 19–20. 22 On or around October 22, 2021, Plaintiff was informed her request for exemption 23 was denied. Id. ¶ 22. Soon after, Defendant informed Plaintiff that she was not in 24 compliance with its COVID-19 policy and that it was therefore placing her on unpaid 25 leave. Id. ¶ 23. It also informed her that failure to comply with its vaccine policy by 26 November 30, 2021, would result in termination of her employment. Id. On or about 27 January 10, 2022, Defendant terminated Plaintiff for failing to comply with its vaccine 28 policy. SAC ¶ 24. Prior to Plaintiff’s termination, Defendant did not specify if her 1 religious exemption form or her responses to the “additional information questions” was 2 deficient, nor was she given “an opportunity to supplement her application and responses 3 for any perceived deficiencies.” Id. ¶ 28. 4 Plaintiff filed her initial complaint on January 5, 2024. Doc. No. 1. After the 5 Court granted in part Defendant’s motion to dismiss this action, Defendant filed the 6 operative SAC on October 17, 2024. Doc. Nos. 22, 24. 7 II. LEGAL STANDARD 8 Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must be 9 dismissed when a plaintiff’s allegations fail to set forth a set of facts that, if true, would 10 entitle the complainant to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Bell Atl. 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that a claim must be facially 12 plausible to survive a motion to dismiss). The pleadings must raise the right to relief 13 beyond the speculative level; a plaintiff must provide “more than labels and conclusions, 14 and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 15 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Assessing a 16 motion to dismiss, the Court accepts as true a plaintiff’s well-pleaded factual allegations 17 and construes all factual inferences in the light most favorable to the plaintiff. See 18 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The 19 Court is not required to accept as true legal conclusions couched as factual allegations. 20 Iqbal, 556 U.S. at 678. 21 When a motion to dismiss is granted, the court must decide whether to grant leave 22 to amend. The Ninth Circuit has a liberal policy favoring amendments, and thus leave to 23 amend should be freely granted. See, e.g., DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 24 655, 658 (9th Cir. 1992). However, a court need not grant leave to amend when 25 permitting a plaintiff to amend would be an exercise in futility. See, e.g., Rutman Wine 26 Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“Denial of leave to 27 amend is not an abuse of discretion where the pleadings before the court demonstrate that 28 further amendment would be futile.”). 1 III. DISCUSSION 2 In her second amended complaint, Plaintiff alleges four causes of action: 3 (1) religious discrimination based on a failure to accommodate in violation of Title VII of 4 the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”); (2) retaliation in 5 violation of Title VII; (3) discrimination and retaliation on the basis of religious creed in 6 violation of California Fair Employment and Housing Act, Cal. Govt. Code § 12900 et 7 seq., (“FEHA”)2; (4) failure to provide religious accommodation in violation of FEHA; 8 and (5) wrongful termination in violation of public policy. SAC ¶¶ 31–100. 9 A. Failure to Accommodate/Religious Discrimination (Claims 1 & 4) 10 Defendant seeks to dismiss Plaintiff’s first and fifth causes of action, failure to 11 accommodate/discrimination claims under Title VII and FEHA, on the grounds that 12 Plaintiff fails to adequately plead a bona fide religious belief or conflict between her 13 alleged beliefs and Defendant’s COVID-19 vaccine policy. Doc. No. 25 at 13–14.3 14 Defendant also argues that Plaintiff failed to inform it of any purported conflict between 15 her religious beliefs and its policy. Id. at 16. 16 Title VII prohibits an employer from discriminating against any employee or job 17 applicant on the basis of religion. 42 U.S.C. § 2000e-2(a). “The . . . effect . . . is to make 18 it an unlawful employment practice . . . for an employer not to make reasonable 19 accommodations, short of undue hardship, for the religious practice of [its] 20 employee[s] . . . .” Heller v. EBB Auto. Co., 8 F.3d 1433, 1437 (9th Cir. 1993) (quoting 21 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1976)). Title VII religious 22 discrimination claims have a two-part framework, under which courts also evaluate 23 FEHA claims. See Heller, 8 F.3d at 1438; Keene v. City & Cnty. of S.F., No. 22-16567, 24 2023 WL 3451687, at *1 (9th Cir. 2023); Borrello v. Respironics California, LLC, No. 25 26 2 This cause of action appears to both allege retaliation and duplicate the fourth cause of action’s 27 discrimination/failure to accommodate claim. SAC ¶¶ 55–69. The Court interprets this cause of action as a retaliation claim and the fourth cause of action as a discrimination/failure to accommodate claim. 28 1 23-CV-580-GPC-VET, 2024 WL 1496215 *10 (S.D. Cal. Apr. 5, 2024). First, the 2 employee must establish that: (1) the employee had a bona fide religious belief, the 3 practice of which would conflict with an employment duty; (2) the employee informed 4 their employer of the belief and conflict; and (3) the employer threatened or subjected the 5 employee to discriminatory treatment because of the employee’s inability to fulfill the job 6 requirements. Keene, 2023 WL 3451687, at *1; see also Heller, 8 F.3d at 1438. 7 However, “[this] prima facie case does not include a showing that the employee made 8 any efforts to compromise his or her religious beliefs or practices before seeking an 9 accommodation from the employer.” Heller, 8 F.3d at 1438. If the employee makes out 10 their prima facie case, the burden shifts to the employer to prove that they initiated good 11 faith efforts to accommodate the employee’s religious practices. Id. 12 In its Order granting in part and dismissing in part Defendant’s first motion to 13 dismiss, Doc. No. 22, the Court found Plaintiff’s allegations insufficient to establish a 14 bona fide religious belief. Doc. No. 22 at 7. Specifically, the Court found that her 15 allegations failed because she merely 16 allege[d] vague references to phrases such as “my body is a temple of the Holy 17 Spirit,” safety concerns regarding the vaccine as a “biological substance” that 18 would “alter the design of [her] immune system” and refusal to participate in “pharmakeia,” conscience-based justifications, assertions of “Constitutional” 19 privileges, and “Christian faith” buzz words. 20 21 Id. 22 Whether the employee’s belief is bona fide depends on whether it is: (1) sincerely 23 held and (2) religious, in the employee’s scheme of things. Africa. v. Commonwealth of 24 Pa., 662 F.2d 1025, 1030 (3d Cir. 1981). Three indicia can determine whether a religion 25 exists. A religion: (1) addresses “fundamental and ultimate questions having to do with 26 deep and imponderable matters;” (2) is a belief-system, comprehensive in nature; and 27 (3) has certain recognizable formal and external signs. Africa, 662 F.2d at 1032; Borrello 28 v. Respironics California, LLC, No. 23-CV-580-GPC-VET, 2024 WL 1496215 *11 (S.D. 1 Cal. Apr. 5, 2024) (under FEHA, courts analyze whether beliefs “(1) . . . ‘address 2 fundamental and ultimate questions having to do with deep and imponderable matters’; 3 (2) . . . are ‘comprehensive in nature; . . . consisting of a belief-system as opposed to an 4 isolated teaching’; and (3) . . . ‘can be recognized by the presence of certain formal and 5 external signs.’”) (cleaned up, internal quotation marks omitted); see also Stephens v. 6 Legacy-GoHealth Urgent Care, No. 3:23-cv-00206-SB, 2023 WL 7612395, at *4 (D. Or. 7 Oct. 23, 2023) (finding the Africa the factors provided helpful guideposts for analyzing 8 whether a belief was religious in nature under a Title VII framework). When requesting a 9 religious exemption, an employer may “require only enough information about an 10 employee’s religious needs to permit the employer to understand the existence of a 11 conflict between the employee’s religious practices and the employer’s job 12 requirements.” Heller, 8 F.3d 1433. While the belief should be “sincerely held,” it “need 13 not be consistent or rational to be protected under Title VII.” Keene, 2023 WL 3451687 14 at *2. However, this “does not mean that courts must take plaintiffs’ conclusory 15 assertions of violations of their religious beliefs at face value.” Bolden-Hardge v. Off. of 16 Cal. State Controller, 63 F.4th 1215, 1223 (9th Cir. 2023); see also Kather v. Asante 17 Health Sys., No. 1:22-cv-1842, 2023 WL 4865533, at *5 (D. Or. July 28, 2023) 18 (“[V]ague expressions of sincerely held Christian beliefs alone cannot serve as a blanket 19 excuse for avoiding all unwanted employment obligations.”). 20 As a preliminary matter, the Court finds that so far as Plaintiff’s re-alleges 21 references beliefs that “[her] body is a temple of the Holy Spirit,” or concerns that the 22 vaccine is a “harmful substance,” that “modifies [or alters] the design of [her] immune 23 system” see, e.g., SAC ¶ 9, 19, this language is still insufficient to communicate the 24 religious nature of her beliefs for the same reasons described in the Court’s order granting 25 Defendant’s first motion to dismiss. See Doc. No. 22 at 7 (citing Bohlmann v. Kaiser 26 Foundation Hospitals, No. 3:23-CV-1322-JR, 2024 WL 2984517 *5 (D. Or. May 16, 27 2024), R. & R. adopted 2024 WL 2984498 (D. Or. June 4, 2024); Prida v. Option Care 28 Enters., Inc., No. 5:23-CV-00905, 2023 WL 7003402 *5 (N.D. Ohio Oct. 24, 2023)). 1 However, upon re-pleading, Plaintiff provides details sufficient to establish bona 2 fide religious beliefs. She explains, for example, that she “believes in the doctrine of 3 sanctity of life[,]” and that “[her] understanding that the manufacturers of the COVID-19 4 vaccine use aborted fetal tissue, the lining of aborted fetal tissue, or both forms of fetal 5 tissue. Due to her pro-life beliefs, [her] faith strongly opposes injecting her body with the 6 COVID-19 vaccine.” SAC ¶¶ 10–11. Viewing the SAC in the light most favorable to 7 Plaintiff, she clearly states therein that her religious beliefs oppose abortion, and that she 8 believes the COVID-19 vaccine to be based, in its manufacture, upon aborted fetal tissue. 9 Id. This is sufficiently descriptive to establish a bona fide religious belief. See, e.g., 10 Shafer v. Legacy Health, No. 3:23-CV-01543-HZ, 2024 WL 1932544 *3 (D. Or. May 2, 11 2024) (“Judges in this district have concluded that []invocation of an anti-abortion stance, 12 guidance from spiritual leaders, and the use of fetal cells in developing COVID-19 13 vaccines appropriately alleged a bona fide religious belief.”) (collecting cases). 14 Likewise, this belief, which requires Plaintiff to refuse the COVID-19 vaccine, 15 necessarily conflicts with Defendant’s requirements that its employees must receive it. 16 However, Plaintiff cannot prevail on her claim merely by having bona fide 17 religious beliefs. She must also have communicated those beliefs to her employer. 18 Heller, 8 F.3d at 1438. In its order granting Defendant’s first motion to dismiss, the 19 Court found that, as with her failure to allege a bona fide religious belief, “Plaintiff does 20 not explain her religious beliefs, nor does she explain how practicing them conflicted 21 with her employment duties in her exemption request,” and thus did not sufficiently plead 22 the second element of her claim. Doc. No. 22 at 7. Evaluating her second amended 23 complaint in full, Plaintiff still misses the mark. Though she explains that she “prepared 24 her religious exemption using her own words as well as language from a template[,]” she 25 provides the Court no insight as to what information or language that request contained.4 26

27 4 Though Defendant attached a purported copy of Plaintiff’s exemption request in its first motion to dismiss, Plaintiff does not allege those facts in or attach that document to her SAC. See Doc. No. 10-3. 28 1 See SAC ¶ 14. Likewise, while the now-extended follow-up questionnaire provides 2 additional clarity to the parties’ interactions after Plaintiff submitted her initial request, it 3 does not support a conclusion, even in the light most generous to Plaintiff, that she 4 sufficiently communicated the religious nature of her beliefs to Defendant. The only new 5 material facts not included in Plaintiff’s initial complaint appear to be contained in 6 questions 5–8 in the follow up questionnaire. Compare Doc. No. 1 (“Compl.”) ¶ 15, with 7 SAC ¶ 19. In these questions discussing medicines which use fetal stem cells, however, 8 Plaintiff states only that she has never knowingly taken them. Id. She does not go so far 9 as to communicate why that is the case, or that she holds a religious objection to fetal 10 stem cell-based vaccines due to her anti-abortion beliefs—except for the vague, 11 conclusory response to question eight that “[a]ll vaccines are against my sincerely held 12 religious beliefs and to take them would be against my God given conscience.” SAC ¶ 13 19. These additions do not demonstrate that she has done anything more than repeat the 14 “threadbare references” to religious concepts that the Court already held insufficient. 15 Though Plaintiff now articulates her religious beliefs to the Court, what she 16 communicated to Defendant prior to this action—the communications foundational to her 17 claim—is simply insufficient. See, e.g. Weiss v. Permanente Med. Grp., Inc., --- F. Supp. 18 3d.----, No. 23-CV-03490-RS, 2024 WL 3090496 (N.D. Cal. Jun. 21, 2024); Borello, 19 2024 WL 1496215 at *10–13. 20 Plaintiff also argues that Defendant failed to meet the requirement imposed by Cal. 21 Gov. Code § 12940(l)(1), which requires that before denying a request for 22 accommodation, Defendant must

23 demonstrate[] that it has explored any available reasonable alternative means 24 of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the 25 person’s religious belief or observance or permitting those duties to be 26 performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship . . . . 27

28 Doc. No. 24 at 16. However, the Court determines, as have others before it, that 1 predicate to the requirement that Defendant explore alternatives accommodations 2 Plaintiff must have communicated to Defendant the conflict between duties and beliefs, 3 and the beliefs’ religious nature. See Andazola v. Permanente, No. CV 23-10904-GW- 4 BFMX, 2024 WL 3914610 *6–7 (C.D. Cal. Jul. 26, 2024), adopted sub nom. Andazola v. 5 Kaiser Permanente, No. CV 23-10904-GW-BFMX, 2024 WL 4581515 *5–6 (C.D. Cal. 6 Jul. 29, 2024); Borrello, 2024 WL 1496215 at *10–13. As discussed above, Plaintiff has 7 not done so. Thus, the Court holds that Plaintiff still, upon amendment, does not 8 sufficiently allege that she informed Defendant of her bona fide religious beliefs, and 9 GRANTS Defendant’s motion to dismiss as to Plaintiff’s failure to 10 accommodate/religious discrimination claims (Claims 1 & 4). 11 B. Retaliation (Claims 2 & 3) 12 Defendant additionally seeks to dismiss Plaintiff’s second and third causes of 13 action alleging retaliation under Title VII and FEHA, arguing that she fails to adequately 14 plead a causal link between a legally protected activity and an adverse employment 15 action. Doc. No. 25 at 17. To establish a prima facie case of retaliation under Title VII 16 and FEHA, a plaintiff must show that: (1) they engaged in a protected activity; (2) the 17 employer subjected the employee to an adverse employment action; and (3) there was a 18 causal link between the protected activity and the employer’s action. Yanowitz v. 19 L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005); E.E.O.C. v. Dinuba Med. Clinic, 20 222 F.3d 580, 596 (9th Cir. 2000) (quoting E.E.O.C. v. Crown Zellerbach Corp., 720 21 F.2d 1008, 1012 (9th Cir. 1983)). Plaintiff, in her opposition to Defendant’s motion to 22 dismiss, argues that requesting a religious accommodation constitutes protected activity, 23 and that “[s]oon after this submission of her request, Plaintiff was placed on unpaid leave 24 and terminated from her employment. This proximity in time between Plaintiff’s 25 submission of her religious request and the adverse actions she suffered establishes a 26 causal link for the purposes of a retaliation claim.” Doc. No. 26 at 22. 27 Assuming her request for accommodations constitutes protected action, Plaintiff 28 still fails to allege facts sufficient to state a retaliation claim. As with her initial 1 complaint, Plaintiff fails to establish a causal nexus between her request for 2 accommodation and subsequent adverse employment action. Specifically, Plaintiff fails 3 to allege facts sufficient to allege that she faced adverse employment action because of 4 her request for accommodation, rather than because of her non-compliance with the 5 vaccination policy itself.5 See, e.g., Weiss, 2023 WL 8420974 at *4 (“[The plaintiff] fails 6 to provide sufficient facts establishing that she was terminated as a result of her 7 exemption request and not because she failed to comply with the [p]olicy, which clearly 8 mandated all employees be vaccinated unless an exemption is granted . . . .”). 9 Plaintiff invokes the Supreme Court’s decision in Bostock v. Clayton County, 10 Georgia, for the proposition that, in short, an adverse employment action can have 11 “multiple but-for causes.” 590 U.S. 644, 656 (2020); see also Univ. of Tx. Sw. Med. Ctr. 12 v. Nassar, 570 U.S. 338, 360 (2013) (“Title VII retaliation claims must be proved 13 according to traditional principles of but-for causation . . . .”). While Plaintiff is correct 14 in her broad description of the Bostock Court’s holding, she misapplies it. Though it is 15 possible that an adverse action may have more than one but-for cause, Plaintiff still must 16 plead facts that show it is “more than a sheer possibility” that retaliation was indeed a 17 but-for cause of the adverse action at hand. See Iqbal, 556 U.S. at 679. Indeed, “where a 18 complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops 19 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. 20 Plaintiff’s temporal proximity arguments and pleadings simply do not sufficiently raise 21 her retaliation claim beyond a mere possibility. Plaintiff claims that in early August 22 2021, Defendant issued a mandate that required all employees receive the COVID-19 23 vaccine or approved exemption before September 30 of that same year. SAC ¶ 6. 24 Accordingly, Plaintiff submitted an exemption form in August 2021, which was 25 provisionally approved that same month. Id. ¶ 13. It was not until October 2021, after 26 the vaccination requirement went into effect, that Defendant requested more information 27 5 In her SAC, Plaintiff employs the following language: “[o]n or about January 10, 2022, [Plaintiff] was 28 1 from Plaintiff, and not until later that month that her exemption was finally denied and 2 she was placed on leave. Id. ¶¶ 18, 22–23. Defendant terminated Plaintiff in January 3 2022. Id. ¶ 24. Given this timeline and the fact that her initial request was, in fact, 4 provisionally approved, Plaintiff’s proximity in time argument alone cannot raise her 5 retaliation claim above a merely speculative level. See, e.g., Andazola, 2024 WL 6 3914610 at *9–10 (collecting cases). 7 Additionally, “[t]he ‘but-for’ causation,” Plaintiff argues, “works against 8 Defendant here, because Plaintiff must simply allege facts to support her assertion that 9 Defendant discriminated against her.” Doc. No. 26 at 23. Here, Plaintiff is incorrect. To 10 plead a retaliation claim, she must allege that the protected action itself—her requesting 11 an accommodation—was a but-for cause of the adverse action she faced, not merely that 12 “Defendant discriminated against her” based on her religious beliefs. See Yanowitz, 116 13 P.3d at 1130; Dinuba Med. Clinic, 222 F.3d at 596. This critical distinction differentiates 14 a classic discrimination claim from a retaliation claim. Cf. Sias v. City Demonstration 15 Agency, 588 F.2d 692, 694–96 (9th Cir. 1978) (holding that retaliation claims may 16 succeed despite no underlying discriminatory practice having occurred, as retaliation 17 claims rely on actions taken in response to perceived discrimination rather than 18 discrimination itself); accord Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 19 1130 (5th Cir. 1981), cert. denied 455 U.S. 1000 (1982). Because Plaintiff has not 20 pleaded allegations that render her retaliation claims facially plausible, the Court 21 GRANTS Defendant’s motion to dismiss as to those claims (Claims 2 & 3). 22 C. Termination in Violation of Public Policy (Claim 5) 23 Finally, Defendant seeks to dismiss Plaintiff’s fifth cause of action, termination in 24 violation of public policy, asserting that it is a derivative claim which cannot succeed if 25 the others fail. Doc. No. 25 at 19–20. A plaintiff claiming termination in violation of 26 public policy must allege: (1) an employer-employee relationship; (2) that the employer 27 terminated their employment; (3) that the termination was substantially motivated by a 28 violation of public policy; and (4) that the discharge caused the plaintiff harm. Yau v. 1 || Santa Margarita Ford, Inc., 229 176 Cal. Rptr. 3d 824, 831 (Cal. Ct. App. 2014) (citing 2 || Haney v. Aramark Unif. Servs., Inc., 17 Cal. Rptr. 3d 336, 348-49 (Cal. Ct. App. 2004)). 3 Plaintiff, in her opposition, claims that this cause of action is “predicated” upon her 4 ||FEHA claims, and that because she states a claim for relief under FEHA, it must survive 5 || dismissal as well. Doc. No. 26 at 25. However, “[b]ecause Plaintiff has failed to state a 6 || claim as to religious discrimination, failure to accommodate, [and] retaliation . . . [s]he 7 || cannot rest on these claims to show that [Defendant’s] behavior violated the public's 8 interest in addition to [her] own,” as her FEHA claims’ dismissal leaves her unable to 9 || establish the necessary nexus between a public policy violation and her termination. 10 || Borello, 2024 WL 1496215 at *17. Therefore, the Court GRANTS Defendant’s motion 11 || to dismiss as to Plaintiff’s claim for termination in violation of public policy (5). 12 IV. CONCLUSION 13 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss 14 || without prejudice and with leave to amend. Any third amended complaint will be the 15 || operative pleading and must be filed on or before February 14, 2025. Defendant must 16 |/respond within the time prescribed by Federal Rule of Civil Procedure 15. Any claim not 17 || re-alleged and any defendant not named in the third amended complaint will be 18 considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 19 896 F.2d 1542, 1546 (9th Cir. 1989); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 20 || (9th Cir. 2012) (noting that after dismissal with leave to amend, claims may be 21 || “considered waived if not repled”’). The third amended complaint must be accompanied 22 || by a version of that pleading that shows—through redlining or similar method—how that 23 || pleading differs from the previously dismissed pleading. See CivLR 15.1.c. 24 IT IS SO ORDERED. 25 || Dated: January 22, 2025 26 pMiiduh M = hilt 27 HON. MICHAEL M. ANELLO 28 United States District Judge