Bolden-Hardge v. Office of the CA State Controller

Opinion

BRIANNA BOLDEN-HARDGE, No. 2:20-cv-02081-JAM-SCR Plaintiff, v. ORDER STATE CONTROLLER, et al., Defendants. Before the Court are cross-motions for summary judgment brought by Brianna Bolden-Hardge (“Plaintiff”) and the Office of the California State Controller and seven of its employees (collectively, “Defendants”) on the issue of liability. Pl.’s Mot., ECF No. 50; Defs.’ Mot., ECF No. 89. The motions are fully briefed. See Pl.’s Opp’n, ECF No. 102; Defs.’ Reply, ECF No. 106. Defendants also bring a Motion to Exclude Certain Expert Opinions. See Mot. to Exclude, ECF No. 84; Opp’n to Mot. to Exclude, ECF No. 98; Reply for Mot. to Exclude, ECF No. 99. A hearing on these motions was held in this Court on August 26, 2025. For the reasons stated at the August 26 hearing and below, the Court denies Defendants’ motion to exclude, and grants in part and denies in part the parties’ cross-motions for summary judgment. I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND A recitation of the entire factual background is unnecessary given the parties intimate familiarity with this case. The pertinent summary is as follows: Plaintiff began working for the Franchise Tax Board (“FTB”) in 2011. Gleiberman Decl., Ex. 1, Bolden-Hardge Dep. 20:2-20, ECF No. 51-1. In 2017, Plaintiff was hired for a position with the State Controller’s Office (“SCO”). Id. 69:15-70:6. Before she could start her new position with SCO, Plaintiff was asked to sign an oath that the California Constitution requires public employees to take (hereinafter, “the Oath”). Id. 74:20-76:10. The Oath states:

I, , do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter. Cal. Const. art. XX, § 3. Plaintiff told SCO employees that her religious beliefs prevented her from signing the Oath. Bolden-Hardge Dep. 76:24- 78:21. After discussing the issue with an SCO employee, Plaintiff wrote an addendum that she proposed attaching to the signed Oath (hereinafter, “the Proposed Addendum”). Id. 79:4-18. The Proposed Addendum stated:

I, [Plaintiff], vow to uphold the Constitutions of the United States and that of the State of California while working in my role as an employee of the [SCO]. I will be honest and fair in my dealings and neither dishonor the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, engage in violence, nor participate in political or military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, nor am I denouncing my religion by accepting this position. Gleiberman Decl., Ex. 1E. SCO did not allow Plaintiff to attach the Proposed Addendum to the Oath and thereafter rescinded her offer of employment because she would not sign the Oath without accommodation. Id. Ex. 1F. Plaintiff brought suit in federal court against SCO and the State Controller of California. Complaint, ECF No. 1. Upon Defendants’ motion, the Court dismissed with prejudice all claims. ECF No. 14. The Ninth Circuit reversed. ECF No. 25; see also Bolden-Hardge v. Off. of California State Controller, 63 F.4th 1215 (9th Cir. 2023). Upon remand, Plaintiff filed an amended complaint against SCO and seven of its employees, including the State Controller of California.1 First Amended Complaint (“FAC”), ECF No. 29. The parties now bring cross- motions for summary judgment as to all claims. A. Legal Standard Summary judgment is appropriate when the record, read in the

1At the August 26, 2025 hearing, the Court was informed that only three of the seven individual defendants named in the FAC have been served. Defendant Cohen is the current State Controller having replaced Defendant Betty Yee, the former State Controller. Defendant Gerald Anderson was the Chief of Human Resources for the State Controller’s Office at all times pertinent to this case. While Plaintiff brought two claims against these three individuals in their official and individual capacities for alleged violations of the Federal and State Constitutions, no evidence has been presented that would permit any claims to go forward against them. Accordingly, these three individual Defendants are dismissed without prejudice. light most favorable to the non-moving party, indicates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of fact exists only if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make this showing, “the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). B. Requests for Judicial Notice Under Federal Rule of Evidence 201, a district court may take judicial notice of a fact that is “not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). A court “may take judicial notice of a record of a state agency not subject to reasonable dispute.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004). The parties each submit an unopposed request for judicial notice (“RJN”) relating to matters of state record. Pl.’s RJN, ECF No. 52; Defs.’ RJN, ECF No. 92. Because these documents are proper for judicial notice, the Court grants the requests. C. Motion to Exclude Expert Opinions Defendants bring a Motion to Exclude Certain Expert Opinions of Dr. Paul Finkelman and Dr. Matthew Schmalz. ECF No. 85. Plaintiff argues that this motion was improperly filed, citing the Pretrial Scheduling Order (ECF No. 39) and Local Rule 260. See Opp’n to Mot. to Exclude at 1-3. The Court disagrees, as nothing in either authority cited by Plaintiff prohibits Defendants from bringing the present motion. As Defendants observe, courts in this District routinely hear motions to exclude expert testimony that are concurrently filed with motions for summary judgment. See Reply for Mot. to Exclude at 2. As such, Defendants’ motion is properly before the Court. At the outset, the Court denies as moot the motion as to Dr. Finkelman because the Court did not find his opinions to be particularly helpful or relevant in reaching its decision regarding the cross-motions for summary judgment. Dr. Schmalz’s testimony on the other hand, is critical to Plaintiff’s Title VII disparate impact claim and the motion to exclude portions of his testimony needs to be resolved. A motion to exclude expert testimony can be brought at the summary judgment stage. See Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 597 (1996). Courts apply the standard outlined in Federal Rule of Evidence 702, which permits testimony by experts qualified by “knowledge, skill, experience, training, or education” to testify “in the form of an opinion or otherwise” based on “scientific, technical, or other specialized knowledge” if that knowledge will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. An expert’s testimony must be “based on sufficient facts or data,” “the product of reliable principles and methods,” and the application of “the principles and methods to the facts of the case.” Id. “Rule 702 embodies the twin concerns of reliability and helpfulness.” Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (cleaned up). “Whether testimony is helpful within the meaning of Rule 702 is in essence a relevancy inquiry.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1184 (9th Cir. 2002). “The test for reliability, however, is not the correctness of the expert’s conclusions but the soundness of his methodology.” Stillwell, 482 F.3d at 1192 (cleaned up). To be reliable, the expert’s testimony must have “a reliable basis in the knowledge and experience of the relevant discipline. The district court must assess whether the reasoning or methodology underlying the testimony is scientifically valid and properly can be applied to the facts in issue, with the goal of ensuring that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (cleaned up). The Court “not only has broad latitude in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citation omitted) (emphasis original). “After an expert establishes admissibility to the judge’s satisfaction, challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.” Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014). In this case, Dr. Schmalz was retained by Plaintiff to “provide expert analysis and possible testimony concerning the beliefs and practices of Jehovah’s Witnesses concerning oaths.” Musell Decl., Ex. C, Schmalz Decl. ¶ 2, ECF No. 98-1. Dr. Schmalz is a Professor of Religious Studies at the College of the Holy Cross. Id. ¶ 1. He has published multiple research papers and essays on Jehovah’s Witnesses. Id. ¶¶ 16-18. When Dr. Schmalz began teaching about this religious group, he “could not find any course within any curriculum in the United States that even briefly mentioned Jehovah’s Witnesses.” Id. ¶ 12. Dr. Schmalz has served as “the academic expert commentator for programs on television/digital platforms that have reported on Jehovah’s Witnesses,” “provided expert commentary on Jehovah’s Witnesses for national media outlets,” and is currently serving as an expert consultant on pending legal cases “to provide context on Watchtower beliefs and practices and the internal dynamics shaping Jehovah’s Witness life.”2 Id. ¶¶ 19-20. Defendants do not contest that Dr. Schmalz’s testimony is helpful, as it goes to the core of the disparate impact claim. Defendants also do not substantively argue that Dr. Schmalz is unqualified. While they state that Dr. Schmalz has not published research on Jehovah’s Witnesses since 1998, they do not explain why this gap in time precludes him from being qualified to opine on matters in this case. See Mot. to Exclude at 13. Instead, Defendants’ principal argument is that portions of Dr. Schmalz’s opinions are so unreliable, speculative or constitute improper legal conclusions that they must be excluded. The Court

2Dr. Schmalz uses “Watchtower” to refer to the religious organization and “Jehovah’s Witnesses” to refer to the members of the organization. Schmalz Decl. ¶ 5. The Court follows suit. disagrees. The Court finds that Dr. Schmalz’s opinions are “based on sufficient facts or data” to survive Defendants’ motion to exclude. See Fed. R. Evid. 702. The primary issue regarding this testimony in support of Plaintiff’s Motion for Summary Judgment is how much weight it should be given, not whether it is admissible. As noted above, once admissibility has been established to the judge’s satisfaction, challenges to the weight of the evidence are decided by a jury, not the judge. The Court denies Defendants’ motion to exclude portions of Dr. Schmalz’s testimony in support of Plaintiff’s Motion for Summary Judgment without prejudice to Defendants renewing their motion should Dr. Schmalz seek to testify at trial. D. Title VII 1. Applicability to State Oaths Defendants first argue that Title VII does not apply to state oaths. Defs.’ Mot. at 11-16. The Court disagrees. As Plaintiff points out, the Ninth Circuit in this case implicitly held that Title VII applies to state oaths because it held that Plaintiff plausibly pleaded a Title VII claim as to the Oath. See Pl.’s Mot. at 4-5. Moreover, the Ninth Circuit has elsewhere applied Title VII to a state oath. In Lawson v. Washington, a Jehovah’s Witness was hired as a cadet by the Washington State Patrol. 296 F.3d 799, 802 (9th Cir. 2002). The plaintiff resigned because he believed that saluting the flag and taking an oath of allegiance to the State of Washington conflicted with his religious beliefs. Id. at 802-803. Upon appeal of a summary judgment order, the Ninth Circuit held that the plaintiff’s religious beliefs conflicted with the Washington State Patrol’s employment requirements. Id. at 804. By finding that the plaintiff satisfied the first part of a failure to accommodate claim brought under Title VII, the Ninth Circuit implicitly found that Title VII applied to state oaths. See id. at 805. Given this binding precedent, the Courts holds that Title VII applies to state oaths. 2. Failure to Accommodate The parties move for summary judgment as to Plaintiff’s failure to accommodate claim under Title VII of the Civil Rights Acts of 1964. FAC ¶¶ 62-73. This claim is analyzed under a two- part framework. “First, the employee must establish a prima facie case by proving that (1) he had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements.” Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993). Second, “[o]nce an employee establishes a prima facie case, the burden of proof then shifts to the employer under the second part of the framework to ‘establish that it initiated good faith efforts to accommodate the employee’s religious practices’ or that it could not reasonably accommodate the employee without undue hardship.” Lawson, 296 F.3d at 804 (quoting Heller, 8 F.3d at 1438). a. Conflict In this case, the Ninth Circuit held that Plaintiff’s “burden to allege a conflict with religious beliefs is fairly minimal.” Bolden-Hardge, 63 F.4th at 1223. The court relied upon the Supreme Court’s decision in Thomas v. Review Board of Indiana Employment Security Division, where the Court held in the context of free exercise and employment that when the plaintiff draws a line that they cannot cross due to religious beliefs, “it is not for us to say that the line he drew was an unreasonable one.” 450 U.S. 707, 715 (1981). Rather, the Court held, “The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion.” Id. at 716 (emphasis added). Plaintiff maintains that there are four conflicts between her religious beliefs and taking the Oath without accommodation: (1) the Oath’s “true faith and allegiance” provision “presents an actionable conflict with [Plaintiff’s] religious belief that her allegiance is first and foremost to God”; (2) the Oath’s requirement to “‘defend . . . against all enemies, foreign and domestic’ presents a conflict with [Plaintiff’s] religious beliefs against pledging to bear arms”; (3) the Oath conflicts with Plaintiff’s “religious beliefs about maintaining political neutrality”; and (4) “signing the unaccommodated Oath without ‘any mental reservation,’ as it provides, would have further violated [Plaintiff’s] religious beliefs where, based on the foregoing concerns as well as her religious needs for a clear conscience as a Jehovah’s Witness, she had reservations.” Pl.’s Mot. at 15-16. The Court finds that there is no genuine dispute that Plaintiff’s religious beliefs conflict with the “true faith and allegiance” provision. Plaintiff’s expert Dr. Schmalz opined that “the requirement to ‘bear true faith and allegiance’ presents a conflict with a typical Jehovah’s Witness’ most basic loyalty to Jehovah God — a fundamental precept guiding Watchtower belief and practice.” Schmalz Decl. ¶ 71. He therefore concluded that “Plaintiff’s approach to the Oath is characteristic of how all or substantially all Jehovah’s Witnesses would approach the matter.” Id. ¶ 74. Plaintiff also 11testified she can “uphold” bearing allegiance to the federal and state constitutions, but her “primary allegiance can’t be to anything or anyone except for God.” Bolden-Hardge Dep. 167:12- 16; see also id. 169:6-10 (“I still need to make sure that my primary allegiance is always to God.”). Moreover, as the Ninth Circuit observed, “Jehovah’s Witnesses have repeatedly challenged similar oath requirements as inconsistent with their religious beliefs.” Id. at 1223 n.5. For example, a court in this District held that the religious beliefs of a Jehovah’s Witness conflicted with the Oath’s “true faith and allegiance” provision. Bessard v. California Cmty. Colleges, 867 F. Supp. 1454, 1462 (E.D. Cal. 1994). This evidence and caselaw establish that Plaintiff’s beliefs reflect an “honest conviction.” See Bolden- Hardge, 63 F.4th at 1223. In response, Defendants present two arguments. First, they state that Plaintiff’s conflict was not an “honest conviction” because she had worked in state government for six years without renouncing her religion, including when she signed the Oath without accommodation in 2011. Defs.’ Reply at 6. This evidence does not demonstrate that Plaintiff’s conviction was dishonest. Indeed, when Plaintiff was presented with the Oath in 2011, she expressed concerns to an FTB employee. Bolden-Hardge Dep. 46:9- 48:18. Plaintiff was told “get the paperwork done” and sign the Oath. Id. Plaintiff represents that because there were at least 20 other new employees in the room with her and everyone had to complete many forms, she “just completed the paperwork.” Id. Accordingly, the context around Plaintiff signing the Oath in 2011 underscores the honesty of her conviction that there are conflicts between her religious views and the Oath. Defendants’ second argument is that the federal oath and other state oaths involve similar language to California’s oath, such that workers “do not relinquish their religion, but they do need to commit to follow the law.” Defs.’ Mot. at 17. Defendants further contend that Plaintiff conceded the Oath did not state “primary” allegiance, which Defendants suggest means there is no conflict between her religious beliefs and the Oath. Id. at 4. However, these arguments would require the Court to consider whether it was reasonable for Plaintiff to believe that there was a conflict between her religion and the Oath. The Ninth Circuit, and the Supreme Court precedent upon which it relied, clearly held that the Court cannot second-guess the reasonableness of Plaintiff’s alleged conflict. See Bolden- Hardge, 63 F.4th at 1223. Rather, the Court only assesses whether Plaintiff has presented an “honest conviction,” which the undisputed evidence establishes she has done. Because it is undisputed that Plaintiff communicated this conflict to Defendants, and that Defendants rescinded Plaintiff’s job offer because she would not sign the Oath without accommodation, Plaintiff has established a prima facie case of failure to accommodate. See Heller, 8 F.3d at 1438; Bolden- Hardge Dep. 76:24-78:21; Gleiberman Decl., Exs. 1E, 1F. As such, the Court need not analyze Plaintiff’s other alleged conflicts. See Bolden-Hardge, 63 F.4th at 1224. b. Undue Hardship The burden of proof shifts to Defendants to establish they “could not reasonably accommodate the employee without undue hardship.” See Lawson, 296 F.3d at 804. To establish an undue hardship, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Groff v. DeJoy, 600 U.S. 447, 470 (2023). Defendants do not present sufficient evidence to allow a jury to find that the Proposed Addendum constituted an undue hardship. Defendants first argue that it would suffer a hardship “due to deviation from the public’s lawful expectations” because the public expects state officials to follow the law, which is an expectation facilitated by the Oath. Defs.’ Mot. at 19-21. But Plaintiff’s accommodation included her signing the Oath, and nothing in the Proposed Addendum would undermine the public’s expectation that she would follow the law. As such, Plaintiff signing the Oath and attaching the Proposed Addendum would not be a deviation from the public’s expectations. Defendants next assert that they would suffer a hardship if they allowed employees to write their own oath. Defs.’ Mot. at 22. Defendants rely on the California appellate opinion in Smith v. County Engineer of San Diego County, where the court rejected an employee’s attempt to add an addendum to the Oath that said, “I take this oath, pledging my loyalty and allegiance to my country, but declaring my supreme allegiance to the Lord Jesus Christ Whom Almighty God has appointed ruler of Nations, and expressing my dissent from the failure of the Constitution to recognize Christ and to acknowledge the Divine institution of civil government.” 266 Cal. App. 2d 645, 648 (1968). Smith does not aid Defendants. First and foremost, the Smith court was not considering whether federal law — much less Title VII — required an accommodation, and thus Smith is inapposite from the present action. However, even if Smith were on point, the addendum there was categorically different from the Proposed Addendum here. The Smith court rightfully held that the employee’s addendum was “gratuitously injecting his religious beliefs into the governmental process, the very subject into which the organic law forbids inquiry by government.” See id. at 656. Plaintiff’s Proposed Addendum, on the other hand, only seeks to clarify the Oath’s meaning and is not “gratuitously injecting [Plaintiff’s] religious beliefs into the governmental process.” See id. Defendants also posit that the only reasonable accommodation available for a religious belief is the ability to “affirm” an oath rather than “swear” it. Defs.’ Mot. at 23. But Plaintiff’s conflict is not with swearing an Oath; rather, her conflict lies with the contents of the Oath itself. Moreover, Defendants’ contention is unsupported by law. Because the Ninth Circuit in this case already held that Plaintiff pleaded a plausible Title VII claim, it implicitly held that federal law allows for reasonable accommodations other than affirming the Oath. See Bolden-Hardge, 63 F.4th at 1222 n.4. Defendants’ final argument is that they would experience hardship “due to the impact on other employees” because granting Plaintiff’s requested accommodation would require them to violate the law and, therefore, their oaths. Defs.’ Mot. at 21-22. To support this position, Defendants submit the declaration of Gerard Anderson, a Defendant in this action, because he is the Chief of HR at SCO. See id. at 22. Anderson states that because SCO determined it could not accommodate Plaintiff, he “felt that granting Plaintiff’s request” would violate his “oath to uphold the law.” Anderson Decl. ¶ 5, ECF No. 94. However, Defendants’ contention is not grounded in the law. The California Constitution only states that public officers and employees “shall” take the Oath before entering office. Cal. Const. art. XX, § 3. Defendants point to no legal authority — in the state constitution or elsewhere — that SCO is prohibited from allowing Plaintiff to attach the Proposed Addendum. Defendants’ argument is further weakened by the practice of other state agencies. Indeed, after SCO rescinded her job offer, Plaintiff returned to the FTB, which granted the exact request in this case by allowing her to attach the Proposed Addendum to the Oath. Bolden-Hardge Decl. 57:1-58:9. The State Personnel Board also allows employees to “attach a statement” to a signed Oath stating that their “religious beliefs prohibit their bearing arms.” Gleiberman Decl., Ex. 22, ECF No. 55-22. That other state agencies allow employees to include addendums suggests that such accommodation does not violate state law. Even if the Proposed Addendum somehow violated state law, the California Department of Human Resources — the agency tasked with ensuring that other agencies administer the Oath to their employees — does not have any policies or procedures to enforce the Oath requirement. Id., Ex. 7, Wheeler Dep. 29:14-18, ECF No. 55-7; id. Ex. 21, ECF No. 55-21. The Ninth Circuit already held that Defendants could not establish an undue hardship unless they “provide evidence that [they] would in fact face liability for accommodating” Plaintiff. See Bolden-Hardge, 63 F.4th at 1226. Because the agency responsible for enforcing the Oath requirement does not take any steps to ensure compliance by all State agencies, Defendants have failed to provide proof they would face liability for accommodating Plaintiff. See id. Finally, even if the Court assumed that Defendants might face liability for violating state law, they still would not meet their undue hardship burden. As the Ninth Circuit in this case explained, exempting employers from a federal accommodation requirement “solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation, raising Supremacy Clause concerns.” Bolden-Hardge, 63 F.4th at 1225 (emphasis original). Accordingly, the undisputed evidence shows that Defendants would not have experienced an undue hardship if Plaintiff had been allowed to attach the Proposed Addendum and sign the Oath, as she requested. The Court grants Plaintiff’s motion and denies Defendants’ cross-motion as to the Title VII failure to accommodate claim. 3. Disparate Impact Both parties move for summary judgment as to Plaintiff’s disparate impact claim under Title VII. FAC ¶¶ 74-80. To establish a prima facie case of disparate impact, a plaintiff must: “(1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.” Hemmings, 285 F.3d at 1190 (citation omitted). If a plaintiff establishes a prima facie case, then the burden shifts to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). In this case at the motion to dismiss stage, the Ninth Circuit held that Plaintiff did not need to provide statistics demonstrating a disparate impact because her allegations — which were accepted as true for purposes of the motion — included that the Oath requirement impacted “all or substantially all” Jehovah’s Witnesses seeking state employment. Bolden-Hardge, 63 F.4th at 1228. At the summary judgment stage, while Plaintiff does not necessarily have to provide statistical evidence, she does need to provide evidence that the disparate impact is “obvious” such that it impacts “all or substantially all” Jehovah’s Witnesses. See id. Dr. Schmalz’s opinions are the only evidence before the Court that concern how a typical Jehovah’s Witness would interpret the Oath. He stated that the requirement to sign an oath with the “true faith and allegiance” provision “would violate the sincerely held religious beliefs of Jehovah’s Witness as a group.” Schmalz Decl. ¶ 34. Dr. Schmalz furthered that “the requirement to ‘bear true faith and allegiance’ presents a conflict with a typical Jehovah’s Witness’ most basic loyalty to Jehovah God — a fundamental precept guiding Watchtower belief and practice.” Id. ¶ 71. As such, he concluded that because “Plaintiff’s approach to the Oath is characteristic of how all or substantially all Jehovah’s Witnesses would approach the matter,” “the categorical refusal by Defendants to provide accommodations in the context of the Oath has the consequence of excluding Jehovah’s Witnesses as a group from public employment with the State Controller’s Office.” Id. ¶¶ 74-76. Dr. Schmalz added that allowing a Jehovah’s Witness to sign the Oath with the Proposed Addendum “would not conflict with the sincere religious beliefs of . . . all or substantially all Jehovah’s Witnesses as a group.” Id. ¶ 79. This evidence arguably supports Plaintiff’s argument that her conflict applies to “all or substantially all” Jehovah’s Witnesses such that a policy of administering an unaccommodated Oath has an “obvious” disparate impact. See Bolden-Hardge, 63 F.4th at 1228. As discussed above, Defendants challenge Dr. Schmalz’s opinions and conclusions as inadmissible. While the Cout denied Defendants’ motion to strike portions of this evidence, it found that there is a genuine issue as to how much weight it should be given. Any challenge that goes to the weight of evidence is within the province of the fact finder, not the trial judge. This Court may not make credibility determinations reserved for the jury. Pyramid Techs, 752 F.3d 807, 814. There is a genuine issue of material fact as to whether Plaintiff can make a prima facie showing of disparate impact under Title VII. Accordingly, the Court denies both parties’ motions for summary judgment on this claim. E. Plaintiff’s Section 1983 Claim is Untimely The parties move for summary judgment as to Plaintiff’s Section 1983 claim for violation of the First Amendment. FAC ¶¶ 89-100. Defendants argue that Plaintiff is time-barred from bringing a Section 1983 claim. Defs.’ Mot. at 30. The Ninth Circuit held, “Claims brought under 42 U.S.C. § 1983 borrow the forum state’s statute of limitations for personal injury actions, as well as the state’s tolling rules . . . California’s two-year limitations period for personal injury actions . . . applies to [plaintiffs’] § 1983 claims.” Holt v. Cnty. of Orange, 91 F.4th 1013, 1018 (9th Cir. 2024) (cleaned up). Plaintiff learned on August 4, 2017, that her job offer from SCO had been rescinded. Bolden-Hardge Depo. 104:4-17. Accordingly, Plaintiff needed to commence action by August 4, 2019, to comply with the two-year limitation period. However, Plaintiff did not file suit until October 19, 2020. See Complaint, ECF No. 1. Plaintiff does not contest that her claim is subject to a two-year limitation period or that she failed to timely commence action. She argues, however, that the claim was tolled because, on January 23, 2018, she initiated an Equal Employment Opportunity Commission (“EEOC”) proceeding by filing a complaint with the California Department of Fair Employment and Housing. See Pl.’s Opp’n at 19; Gleiberman Decl., Ex. 33, ECF No. 51-3. Plaintiff ignores significant caselaw that all but forecloses her argument. The Supreme Court held that the filing of an EEOC complaint does not toll the running of the statute of limitations for a Section 1981 claim, which is a similar cause of action to a Section 1983 claim. Johnson v. Railway Express Agency, 421 U.S. 454, 466 (1974). The Court elsewhere held that all causes of action under the Civil Rights Acts “exist independent of any other legal or administrative relief that may be available as a matter of federal or state law.” Burnett v. Grattan, 468 U.S. 42, 50 (1984). Relying on this precedent, the Ninth Circuit held that the statute of limitations for a Section 1981 claim was not tolled during the pendency of a California administrative claim. London v. Coopers & Lybrand, 644 F.2d 811, 815 (9th Cir. 1981), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). District courts in this Circuit have applied this binding precedent to Section 1983 claims. For example, one district court held, “There is thus no reason that the . . . statute of limitations governing plaintiff’s § 1983 claim should be tolled while his EEOC proceeding was pending.” Reese v. City of Emeryville Fire Dep’t, 746 F. Supp. 987, 988 (N.D. Cal. 1990). The Reese court explained, “To hold otherwise would grant plaintiff the right to allege new causes of action continually, each time asserting the pendency of the previous litigation as tolling any limitations period applicable to the newly alleged claim. Such a result would frustrate policies behind statutes of limitations, which are intended both to encourage plaintiffs to pursue all available legal remedies in a timely manner and to ensure that defendants need not face the uncertainty of indefinite liability.” Id. Other district courts have held that an EEOC proceeding does not toll the limitation period for a Section 1983 claim. See Sutton v. City & Cnty. of San Francisco, No. C 93-1120 BAC, 1993 WL 451506, at *2 (N.D. Cal. Oct. 28, 1993) (granting summary judgment to the defendant because Section 1983 claim was untimely, as it was not tolled during the pendency of the plaintiff’s EEOC proceeding); Vorgias v. State Bar of California, No. C 05-5039 JF PVT, 2007 WL 295547, at *2 (N.D. Cal. Jan. 30, 2007) (holding that an EEOC complaint did not toll the limitation period for a Section 1983 claim). The Court agrees that the statute of limitations for a Section 1983 claim runs during the pendency of an EEOC proceeding. Because Plaintiff has no other argument for tolling and concedes that her claim is otherwise untimely, the Court grants Defendants’ motion and denies Plaintiff’s motion as to the Section 1983 claim. F. The Court Must Dismiss the Remaining Claims 1. Fair Employment and Housing Act The parties move for summary judgment as to Plaintiff’s claim for violation of California’s Fair Employment and Housing Act (“FEHA”). Defendants correctly argue that this claim is barred by the Eleventh Amendment. Defs.’ Mot. at 28. The Supreme Court held, “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (citation omitted). The Court furthered that “this principle applies as well to state-law claims brought into federal court under pendent jurisdiction.” Id. While an individual can sue a state employee for a FEHA violation in state court, the Ninth Circuit held that “a statute consenting to suit in state court does not constitute consent to suit in federal court.” Fordyce v. City of Seattle, 55 F.3d 436, 441 (9th Cir. 1995) (citation omitted). Accordingly, the Ninth Circuit held, “California has not waived its immunity to FEHA actions in federal court.” Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999); see also Mack v. California Dep’t of Corr. & Rehab., 790 F. App’x 846, 848 (9th Cir. 2019) (holding that the district court properly dismissed a FEHA claim against a state agency because the claim was barred by sovereign immunity). Plaintiff points out that Defendants did not raise this issue at the motion to dismiss stage. Pl.’s Opp’n at 7 n.4. However, Defendants were not required to raise this issue in a motion to dismiss. See Doe v. Regents of the Univ. of California, 891 F.3d 1147, 1152-53 (9th Cir. 2018) (holding that defendant did not waive immunity by not raising the argument in a motion to dismiss). Moreover, because Defendants asserted this affirmative defense, the argument was not waived. See Answer at 24, ECF No. 34. Plaintiff also contends that the Ninth Circuit allowed her FEHA claim to proceed. Pl.’s Opp’n at 7 n.4. However, because this issue was not previously raised, the Ninth Circuit did not address it. The Ninth Circuit held that Plaintiff “can seek retrospective damages from the Controller’s Office under FEHA because state employers are likewise subject to suits for damages under that state law.” Bolden-Hardge, 63 F.4th at 1221 (citing DeJung v. Superior Ct., 169 Cal. App. 4th 533 (2008)). The Ninth Circuit did not, however, address whether this claim was barred by the Eleventh Amendment. Moreover, DeJung — the California appellate case that the Ninth Circuit cited — only stands for the proposition that public employers are liable for violations of FEHA, and it does not state that California has waived its immunity against FEHA actions in federal court. See 169 Cal. App. 4th at 545. Accordingly, the Court does not have jurisdiction over the FEHA claim. The Court addresses below the proper disposition of this claim. See infra Opinion Part F.3. 2. California Constitution Defendants, but not Plaintiff, move for summary judgment as to Plaintiff’s claim for violation of the California Constitution. As Defendants observe, see Defs.’ Mot. at 35, this claim is also barred because “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.” See Pennhurst State Sch., 465 U.S. at 121. Relying on Pennhurst State School, the Ninth Circuit held that a federal court deciding state issues “would offend federalism and does not further the interests of federal law.” Ulaleo v. Paty, 902 F.2d 1395, 1400 (9th Cir. 1990). Accordingly, the Ninth Circuit affirmed the district court’s dismissal of “plaintiffs’ pendent claims based on solely state law and the state constitution.” Id. Plaintiff does not address this specific argument. See Pl.’s Opp’n at 20, n.15. By failing to respond to Defendants’ argument, Plaintiff concedes that this claim is barred. See Mariscal v. Graco, Inc., 52 F. Supp. 3d 973, 984 (N.D. Cal. 2014) (granting summary judgment because the plaintiff conceded the relevant claim by failing to address the defendant’s arguments); M.J.L.H. v. City of Pasadena, No. CV 18-3249-JFW(SSx), 2019 WL 2249545, at *4 n.9 (C.D. Cal. May 24, 2019) (same). Accordingly, the Court does not have jurisdiction over the California Constitution claim. 3. Dismissal is Mandatory as to Both Claims Defendants request summary judgment as to the FEHA and California Constitution claims. Defs.’ Mot. at 28, 35. However, because the Court lacks jurisdiction, it must dismiss the claims rather than grant summary judgment. In Freeman v. Oakland Unified School District, the district court granted the defendant’s motion for summary judgment because the FEHA claim was barred by the Eleventh Amendment. No. C 96-1539 FMS, 1998 WL 310758, at *4 (N.D. Cal. June 8, 1998). Upon appeal, though the Ninth Circuit agreed that the claim was barred, it nonetheless ordered “the district court to modify its decision to specify that [the plaintiff’s] FEHA claim is ‘dismissed without prejudice.’” Freeman, 179 F.3d at 847. The court explained that because the “Eleventh Amendment is a limit on federal courts’ jurisdiction,” a claim barred by the Eleventh Amendment must be dismissed “without prejudice to it being re-filed in a court of competent jurisdiction.” Id. /// /// /// enn nnn enn nn nn nn SO I EE

Accordingly, as to the FEHA and California Constitution claims, the Court dismisses them without prejudice. As such, the Court denies as moot the parties’ cross-motions as to these claims. For the reasons set forth above, Defendants’ Motion to Exclude is DENIED WITHOUT PREJUDICE. The Court also GRANTS IN PART and DENIES IN PART Plaintiff’s and Defendants’ cross-motions for summary judgment. Specifically, the Court GRANTS Plaintiff’s motion and DENIES Defendants’ motion as to the Title VII claim for failure to accommodate. The Court DENIES the parties cross- motions as to the Title VII claim for disparate impact. The Court GRANTS Defendants’ motion and DENIES Plaintiff’s motion as to the Section 1983 claim. The claims brought under the California Constitution and the Fair Employment and Housing Act are DISMISSED WITHOUT PREJUDICE, and thus the parties’ cross- motions are DENIED AS MOOT as to these claims. Dated: August 29, 2025 Cfo JOHN A. MENDEZ SENIOR UNITED*STATES DISTRICT JUDGE 25