Ford v. Blue Cross Blue Shield of Michigan

• Court: District Court, E.D. Michigan
• Decided: August 29, 2024
• Docket: 5:23-cv-12070
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Sherry Ford,

Plaintiff, Case No. 23-12070

v. Judith E. Levy United States District Judge Blue Cross Blue Shield of Michigan, Mag. Judge Elizabeth A. Stafford Defendant.

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OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT [13] AND DENYING AS MOOT DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS [11]

Before the Court is Defendant Blue Cross Blue Shield of Michigan’s (“BCBSM”) motion for judgment on the pleadings (ECF No. 11) and Plaintiff Sherry Ford’s motion for leave to file her amended complaint. (ECF No. 13.) Plaintiff filed the complaint on August 14, 2023, alleging that BCBSM violated Title VII and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”). (ECF No. 1.) On February 21, 2024, Defendant filed a motion for judgment on the pleadings. (ECF No. 11.) Shortly after, Plaintiff filed a motion for leave to file an amended complaint on March 12, 2024. (ECF No. 13.) Both motions have been fully briefed. (ECF Nos. 14, 15, 16, 17.)

For the reasons set forth below, Plaintiff’s motion for leave to file an amended complaint is granted (ECF No. 13), and Defendant’s motion

for judgment on the pleading is denied as moot. (ECF No. 11.) I. Factual Background Plaintiff worked as a Performance Evaluation Specialist for

BCBSM for over 20 years until her termination on January 5, 2022. (ECF No. 1, PageID.3.) On November 1, 2021, BCBSM announced that all employees and contractors must be vaccinated against COVID-19 by

December 8, 2021. (Id.) After this announcement, Plaintiff submitted a religious accommodation request seeking an exemption from Defendant’s COVID-19 vaccination requirement. (Id. at PageID.1, 6.) In her

complaint, Plaintiff described her religious beliefs as “seek[ing] to make all decisions, especially those regarding vaccination and other medical decisions, through prayer.” (Id. at PageID.6.) Her request for an

exemption was denied. (Id.) Plaintiff did not receive the COVID-19 vaccine; as a result, Defendant placed her on unpaid leave and ultimately terminated her employment on January 5, 2022. (Id.) In her proposed amended complaint, Plaintiff includes additional details on her religious beliefs and how these beliefs conflicted with

BCBSM’s COVID-19 vaccine requirement. (See ECF No. 13-1, PageID.163–168.) These details include that she “prayed to God for

wisdom and discernment about taking the COVID-19 vaccine,” she “believes that her body is a temple for the Holy Spirit,” and “she is religiously obligated to keep her body and immune system as God

intended.” (Id. at PageID.164–165.) Plaintiff believes “it would be a sin to alter her natural God-given immunity by taking any vaccine, which would indicate distrust in God’s healing power.” (Id. at PageID.165

(emphasis in original).) Plaintiff also asserts that “she has not received a vaccine in over 15 years and objects to all vaccines in accordance with Psalm 31:14 and Isaiah 55:8-9.” (Id.)

Finally, Plaintiff’s proposed amended complaint adds allegations regarding BCBSM’s Director of Employee and Labor Relations, Bart Feinbaum. She alleges that he made statements which constitute “direct

evidence of discrimination and a blanket policy to deny religious accommodation beliefs.” (Id. at PageID.170.) According to the proposed amended complaint, Mr. Feinbaum stated in a human resources meeting that “he believed that the three major religions (Christianity, Judaism, and Islam) all allowed for vaccination against COVID-19,” that “the goal

of Defendant’s interview process was to ‘pressure’ employees to get vaccinated against COVID-19,” and that “Defendant was not allowed to

accept ‘all’ religious accommodation requests.” (Id.) II. Legal Standard A party seeking to amend a claim, when such an amendment would

not be as a matter of course, “may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave

should be denied where the amendment demonstrates defects “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)). “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017)).

When deciding a motion to dismiss under Federal Rule of Procedure 12(b)(6), the Court must “construe the complaint in the light most

favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff’s claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A plausible claim need not contain “detailed factual allegations,” but it must contain more than “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). III. Analysis

Plaintiff brings a failure-to-accommodate claim and a disparate treatment claim under Title VII (Counts I and II), and a disparate treatment claim and intentional discrimination claim under ELCRA (Count III). (ECF No. 13-1, PageID.172–178.) Defendant argues that Plaintiff’s proposed amended complaint is futile and should not be filed

because (1) Plaintiff has not alleged a sincerely held religious belief, which is fatal for all three counts, and (2) Plaintiff has not alleged

sufficient facts to establish a claim for disparate treatment, which is fatal for Counts II and III. (ECF No. 15, PageID.229–240.) A. Plaintiff’s sincerely held religious belief

Defendant first argues that Plaintiff’s proposed amended complaint fails to allege a sincerely held religious belief. Defendant argues that the Court should not construe her beliefs as sincerely held religious beliefs

because it would result a “blanket privilege,” which is a “a limitless excuse for avoiding all obligations.” (ECF No. 15, PageID.232 (quoting Lucky v. Landmark Medical of Michigan, Case No. 23-cv-11004, 2023 WL

7095085, at *6 (E.D. Mich. Oct. 26, 2023)).) Defendant also characterizes Plaintiff’s beliefs as medical, not religious. (Id. at PageID.234 (“[W]hen a plaintiff . . . expresses an opposition to polluting or harming the body, her

belief that the ‘body is a temple’ is a medical concern, not a religious belief.”).) The Court disagrees and finds that Plaintiff’s beliefs, as alleged in the proposed amended complaint, are religious. Defendant agrees that Plaintiff’s alleged beliefs are very similar to, if not the same as, the beliefs described in Lucky, 2023 WL 7095085. (ECF

No. 15, PageID.232 (“Plaintiff’s allegations here are functionally the same as the allegations pled in Lucky.”).) Like Plaintiff, the plaintiff in

Lucky resisted a vaccination requirement due to a belief based in her Christian faith: that her body is a “temple” for God and that the vaccine would go against God’s design for her body. (ECF No. 13-1, PageID.164–

165); Lucky, 2023 WL 7095085, at *1 n.2. In Lucky, the district court held that the complaint should be dismissed for failure to state a claim because the plaintiff had not alleged a religious belief. Id. at *7 (holding

that “her religion had a specific tenant or principle that does not permit her to be vaccinated” and only offered “naked assertions devoid of further factual enhancement”).

This decision was recently reversed. Lucky v. Landmark Medical of Michigan, P.C., 103 F.4th 1241 (6th Cir. 2024). The Sixth Circuit held that the plaintiff’s allegations were sufficient to establish that “her

refusal to receive the vaccine was an ‘aspect’ of her religious observance or belief” and that the plaintiff need not explain how “her religion has a specific tenet or principle that does not permit her to be vaccinated.” Id. at 1243–44 (quoting Lucky, 2023 WL 7095085, at *7). Here, Defendant’s arguments now contradict Sixth Circuit precedent. Id.; see also Sturgill

v. Am. Red Cross, __ F.4th __, No. 24-1011, 2024 WL 3886589, at *4 (6th Cir. Aug. 21, 2024) (holding that similar allegations are clearly religious).

Like Lucky, Plaintiff’s beliefs are religious. Her amended complaint “[pleads] facts supporting an inference that her refusal to be vaccinated for [COVID-19] was an ‘aspect’ of her ‘religious observance’ or ‘practice’

or ‘belief.’” Lucky, 103 F.4th at 1243 (quoting 42 U.S.C. § 2000e(j)). She is a “devout Christian” and believes that she is “religiously obligated to keep her body and immune system as God intended,” and that “it would

be a sin to alter her natural God-given immunity by taking any vaccine.” (ECF No. 13-1, PageID.164–165.) It is clear that Plaintiff’s “refusal to receive the vaccine [is] an ‘aspect’ of her religious observance or belief.”

Lucky, 103 F.4th at 1243. As such, the Court finds that Plaintiff has sufficiently alleged a sincerely held religious belief.

B. Disparate treatment under Title VII and ELCRA Defendant argues that Plaintiff’s disparate treatment claims under Title VII and ELCRA are futile because she does not sufficiently allege circumstantial or direct evidence of Defendant’s discriminatory motive. (ECF No. 15, PageID.235, 240.) In order to state a claim of disparate

treatment under Title VII and ELCRA, Plaintiff must plausibly allege that Defendant treated her differently than other employees because of

her religion. Savel v. MetroHealth Sys., 96 F.4th 932, 943 (6th Cir. 2024); Humenny v. Genex Corp, 390 F.3d 901, 906 (6th Cir. 2004) (“Cases brought pursuant to the ELCRA are analyzed under the same

evidentiary framework used in Title VII cases.”). Generally, plaintiffs “may establish a case of unlawful discrimination through either direct or circumstantial evidence.” White v. Baxter Healthcare Corp., 533 F.3d 381,

391 n.5 (6th Cir. 2008). i. Circumstantial Evidence According to Defendant, Plaintiff’s proposed amended complaint

does not sufficiently allege circumstantial evidence of Defendant’s discriminatory motive because she does not allege that “any similarly situated employee was treated more favorably.” (ECF No. 15,

PageID.235.) Defendant contends that Plaintiff does not identify a religion or a religious belief that it “favored” over Plaintiff’s beliefs, nor similarly situated employee who was treated more favorably. (Id. at PageID.237–238.)

First, to the extent that Defendant argues that Plaintiff’s amended complaint fails to plead a prima facie case of employment discrimination,

that argument must be rejected. “A plaintiff does not have to allege specific facts establishing a prima facie case of discrimination in their complaint.” Savel, 96 F.4th at 943. As such, Plaintiff need not identify

specific, similarly situated employees who were treated more favorably, as long as the Court is able to reasonably infer that Defendant treated her differently than other employees due to her religious beliefs. See

Spencer v. Blue Cross Blue Shield of Michigan, No. 23-CV-11913, 2024 WL 3755979, at *4–5 (E.D. Mich. Aug. 12, 2024). The Court finds that Plaintiff’s proposed amended complaint

plausibly alleges that Defendant treated her differently than other employees due to her religious beliefs. Plaintiff identifies that Defendant “favored” those with different beliefs over Plaintiff. (ECF No. 13-1,

PageID.172, 177.) The proposed amended complaint states that she was terminated “based on Defendant’s own subjective standard of religiosity,” that Defendant discriminated against her “unique sincerely held spiritual beliefs,” and that Defendant “determined that some religious beliefs of its employees were valid while others were bogus.” (Id. at

PageID.179–180.) Several other courts determined that similar, if not nearly

identical, allegations were sufficient to support an inference that other, similarly situated employees were treated differently. See Spencer, 2024 WL 3755979, at *4–5; Williams v. Blue Cross Blue Shield of Michigan,

No. 23-CV-12066, 2024 WL 1994258, at *5 (E.D. Mich. May 6, 2024); Horne v. Pentastar Aviation, LLC, No. 23-11439, 2024 WL 1607017, at *9 (E.D. Mich. Apr. 12, 2024) (holding that the plaintiff sufficiently alleged

a disparate treatment claim based on the defendant’s treatment of other, similarly-situated employees with different religious beliefs). Further, Defendant acknowledges that it “granted many religious accommodation

requests,” (ECF No. 15, PageID.248 (emphasis in original)), signifying that some religious accommodation requests were granted and others were not.

As such, the Court concludes that Plaintiff’s proposed amended complaint sufficiently alleges circumstantial evidence of Defendant’s discriminatory motive. ii. Direct Evidence Additionally, the Court finds that Plaintiff’s proposed amended

complaint sufficiently alleges direct evidence of disparate treatment. Plaintiff states that Defendant’s Director of Employee and Labor

Relations, Mr. Feinbaum, “was responsible for deciding which employees received religious and medical accommodations,” but instructed “employees who would be conducting the religious accommodation

interviews that Defendant was not allowed to accept ‘all’ religious accommodation requests.” (ECF No. 13-1, PageID.171.) Mr. Feinbaum allegedly asserted in that same meeting that “after performing personal

research . . . he believed that the three major religions (Christianity, Judaism, and Islam) all allowed for vaccination against COVID-19,” and that “the goal of Defendant’s interview process was to ‘pressure’

employees to get vaccinated against COVID-19.” (Id.) According to Defendant, these allegations “require far-fetched, impermissible inferences to arrive at ‘direct evidence’ of discriminatory

intent.” (ECF No. 15, PageID.242 (emphasis in original).) The Court disagrees. Plaintiff claims that she was discriminated against because of her different religious beliefs, and the alleged statements from the Director of Employee and Labor Relations display disregard or animus towards certain religious beliefs. See Williams, 2024 WL 1994258, at *5

(evaluating the same statements from Mr. Feinbaum). Defendant also argues that Mr. Feinbaum’s statements cannot

constitute direct evidence because he was not a decision-maker. (ECF No. 15, PageID.244–225.) This argument is not convincing. The proposed amended complaint claims that Mr. Feinbaum is the Director of

Employee and Labor Relations, was responsible for determining religious and medical accommodations, and instructed employees with regard to the religious accommodation interviews. (ECF No. 13-1, PageID.170.)

The Court can reasonably infer that Mr. Feinbaum was involved in the decision to terminate Plaintiff’s employment.1 As such, Plaintiff’s proposed amended complaint sufficiently alleges

a disparate treatment claim under both Title VII and ELCRA.

1 Defendant contends that Mr. Feinbaum cannot be a decisionmaker because Plaintiff’s religious accommodations interview was conducted by Kaitlyn Mardeusz and Devin Scott. (ECF No. 15, PageID.244 n.9 (citing ECF No. 15-2 (notes from Plaintiff’s religious accommodations interview)).) Even if the Court considered this information, Defendant’s argument would not prevail because the interview notes only demonstrate that Mardeusz and Scott conducted the interview, not that they made the decision to terminate Plaintiff’s employment. IV. Conclusion For the reasons set forth above, the Court GRANTS Plaintiff’s

motion for leave to file an amended complaint. (ECF No. 13.) Defendant’s motion for judgment on the pleadings is DENIED as MOOT. (ECF No. 11.)

IT IS SO ORDERED.

Dated: August 29, 2024 s/Judith E. Levy Ann Arbor, Michigan JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on August 29, 2024. s/William Barkholz WILLIAM BARKHOLZ Case Manager