Hasia-Welch v. Disability Rights California

• Court: District Court, S.D. California
• Decided: December 13, 2024
• Docket: 3:24-cv-00810
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOYA R. HASIA-WELCH, an individual, Case No.: 24-cv-00810-AJB-BLM

12 ORDER GRANTING DEFENDANT’S Plaintiff, MOTION TO DISMISS PLAINTIFF’S 13 COMPLAINT v. 14 DISABILITY RIGHTS CALIFORNIA; (Doc. No. 8) 15 DOES 1–10, inclusive, 16 Defendants. 17

18 Presently pending before the Court is Defendant Disability Rights California’s 19 (“DRC”) Motion to Dismiss Plaintiff Toya Hasia-Welch’s First Amended Complaint 20 (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, for the 21 Court to require Plaintiff to provide a more definite statement pursuant to Rule 12(e). (Doc. 22 No. 8.) Plaintiff filed an opposition to the motion to dismiss (Doc. No. 11), to which 23 Defendant replied (Doc. No. 12). Pursuant to Civil Local Rule 7.1.d.1, the Court finds the 24 instant matter suitable for determination on the papers and without oral argument. For the 25 reasons stated herein, the Court GRANTS the Motion to Dismiss Plaintiff’s FAC and 26 DENIES AS MOOT DRC’s request for a more definite statement pursuant to Rule 12(e). 27 /// 28 1 I. BACKGROUND 2 Plaintiff brings this action against DRC, alleging (1) failure to accommodate religion 3 in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title 4 VII”); (2) retaliation based on religion in violation of Title VII; (3) discrimination and 5 retaliation based on religious creed in violation of the California Fair Employment and 6 Housing Act, Cal. Gov’t Code § 12900 et seq. (“FEHA”); (4) failure to provide religious 7 accommodation in violation of FEHA; and (5) wrongful termination under California’s 8 common law tort. (See FAC, Doc. No. 4.) 9 A. The Policy 10 DRC has a Transgender, Non-Binary Inclusion Policy (the “Policy”), which states: 11 “All employees have the right to be addressed by their chosen name and pronoun. The 12 intentional or persistent refusal to respect an employee’s gender identity, name, or pronoun 13 is harassment.” (Id. ¶ 8.) Under the section titled Gender Affirmation, DRC’s Policy states, 14 “Employees who transition are entitled to the support of DRC management, Human 15 Resources, and their colleagues.” (Id. ¶ 9.) The DRC Inclusive Pronoun Protocol for 16 Written Material section of the Policy states, “the use of binary pronouns is not inclusive 17 of all [transgender, non-binary, gender-non-conforming, and intersex] TNGI people. 18 Currently, gender-inclusive language can be achieved by simply reusing a noun in-lieu of 19 a pronoun or by using ‘they/them/their’ as a singular, inclusive pronoun.” (Id. ¶ 10.) Under 20 the same section, the following language can be found: 21 Use Inclusive, Singular Pronouns “They/Them/Their” “They” is recognized as a singular, gender-inclusive pronoun. When the use 22 of pronouns is necessary to refer to an individual, use “they.” 23 24 (Id.) 25 B. Plaintiff’s Allegations 26 Plaintiff alleges she worked as an investigator in training at DRC’s San Diego, 27 California location from March 16, 2022, to July 1, 2022. (FAC at Introduction, ¶ 7.) She 28 asserts she is a follower of the Christian faith and believes that God assigned each person 1 a gender at birth as male or female. (Id. ¶¶ 11–12.) Due to her sincerely held beliefs, 2 Plaintiff states “she cannot live a lie by supporting a position that runs opposite of the 3 teachings of the Bible.” (Id. ¶ 12.) 4 On April 29, 2022, Plaintiff requested a religious accommodation to the Policy 5 provisions requiring her to support a transgender employee’s transition and use of an 6 employee’s chosen pronouns.1 (Id. ¶ 13.) Plaintiff submitted her request to DRC’s Human 7 Resources Director, Chris White. (Id.) Specifically, Plaintiff’s accommodation request 8 referenced the statement in the Policy that employees who transition are entitled to 9 “support” of management, Human Resources, and their colleagues. (Id. ¶ 14.) Plaintiff 10 informed Ms. White that this statement violates “my faith by forcing me to support 11 someone’s personal life decisions, which are none of my business, that I do not and will 12 never support.” (Id.) Plaintiff explained she was willing to use transgender individuals’ 13 names or gender-neutral pronouns, “they/them/their,” as found in the Policy, but that she 14 would not offer “support” to what she believes to be a sin. (Id.) 15 On May 3, 2022, Ms. White responded to Plaintiff’s email, stating:

16 Encouraging the use of pronouns does not mean it is required. There are other 17 options as the policy states. What is not compliant with our policy is repeatedly using a pronoun that another employee has asked you not to use. 18 Support means treating co-workers and clients with respect and kindness. 19 Do you feel you need an accommodation based on your religion?

20 (Id. ¶ 15.)2 On the same day, Plaintiff responded to Ms. White’s email, reiterating her 21 request for a religious accommodation to DRC’s Policy. (Id. ¶ 16.) Plaintiff also raised 22 23 24 1 The terms “chosen” and “preferred” are consistent with the parties’ briefing and the record in this case. 25 The Court does not intend to imply that any transgender individual’s pronouns are merely suggested, optional, or anything less than inherent to one’s identity. 26 2 In Plaintiff’s Opposition to DRC’s Motion to Dismiss, she asserts the statements in Ms. White’s email created a further conflict for Plaintiff because “if an employee asks her to use a preferred pronoun other 27 than ‘they/them/their[,]” she would not be in compliance with the Policy. (Doc. No. 11 at 8, 15.) However, Plaintiff does not allege this in her FAC, and thus the Court does not consider it. See Apple Inc. v. Allan 28 1 concerns about a hostile work environment due to her religious beliefs and that she wanted 2 an accommodation in her file for her protection. (Id.) Plaintiff states she was especially 3 concerned since the Policy stated that the refusal to respect an employee’s gender identity, 4 name, or pronoun constituted harassment. (Id.) 5 On May 4, 2022, Ms. White emailed Plaintiff stating she was not sure what job 6 requirement Plaintiff was requesting an accommodation for, and there was no need for an 7 accommodation if Plaintiff was willing to use the pronouns her co-workers and clients 8 requested. (Id. ¶ 17.) Ms. White again asked Plaintiff to explain what job requirement 9 conflicted with her religious beliefs. (Id.) In her responding email, Plaintiff clarified that 10 she was “willing and able to refer to gender dysphoric and trans-gender staff and our clients 11 by gender neutral pronouns such as ‘they’ and ‘them’, or by their name. [She was] willing 12 and able to show kindness, love and basic human respect to any member of the LGBTQIA+ 13 community just as [she] would for any other human being.” (Id. ¶ 18.) 14 By the end of May 2022, DRC still had not informed Plaintiff if her religious 15 accommodation request was approved or denied, or met with Plaintiff to discuss available 16 accommodations to the Policy. (Id. ¶ 19.) On June 30, 2022, Plaintiff submitted a 17 subsequent religious accommodation request to Ms. White. (Id. ¶ 20.) In her request, 18 Plaintiff asked if her initial request for a religious accommodation had been denied, and 19 reiterated her willingness to show kindness and respect to any member of the LGBTQIA+ 20 community and to use a transgender employee’s name or gender-neutral pronouns. (Id.) 21 Plaintiff again reiterated the conflict between her religious beliefs and the Policy requiring 22 her to “support” a transgender employee’s transition and use an employee’s requested 23 pronouns. (Id.) 24 25 26

27 amended by the briefs in opposition to a motion to dismiss.’”) (quoting Frenzel v. AliphCom, 76 F. 28 1 On July 1, 2022, Plaintiff was terminated effective July 7, 2022. (Id. ¶ 21.) Plaintiff 2 states DRC cited the Bible and Plaintiff’s religious beliefs as reasons for the termination 3 of her employment. (Id.) 4 Plaintiff timely filed a complaint with the United States Equal Employment 5 Opportunity Commission (“EEOC”) and received a Notice of Right to Sue from the EEOC 6 on February 29, 2024. (Id. ¶ 25.) Plaintiff also received her Notice of Right to Sue from 7 the Civil Rights Department on May 9, 2024. (Id.) 8 II. LEGAL STANDARD 9 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 10 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 11 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 12 646 F.3d 1240, 1241 (9th Cir. 2011) (citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 13 2001)). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading that states a claim 14 for relief contain “a short and plain statement of the claim showing that the pleader is 15 entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The function of this pleading requirement is to 16 “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 17 rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 18 355 U.S. 41, 47 (1957)). 19 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 20 facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial 21 plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 23 Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a 24 formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting 25 Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, 26 supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can 27 provide the framework of a complaint, they must be supported by factual allegations.” Id. 28 at 679. Accordingly, dismissal for failure to state a claim is proper where the claim “lacks 1 a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 2 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see Los 3 Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). 4 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must “‘accept the 5 factual allegations of the complaint as true and construe them in the light most favorable 6 to the plaintiff.’” Los Angeles Lakers, 869 F.3d at 800 (quoting AE ex rel. Hernandez v. 7 Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). But a court need not accept “legal 8 conclusions” as true. Iqbal, 556 U.S. at 678. “Further, it is improper for a court to assume 9 the claimant “can prove facts that it has not alleged or that the defendants have violated the 10 . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. 11 Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In addition, a court may 12 consider documents incorporated into the complaint by reference and items that are proper 13 subjects of judicial notice. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 14 2010). If the court dismisses a complaint for failure to state a claim, it must then determine 15 whether to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 16 1995). “A district court should grant leave to amend . . . unless it determines that the 17 pleading could not possibly be cured by the allegation of other facts.” Id. 18 III. DISCUSSION 19 A. Failure to Accommodate 20 DRC first moves to dismiss Plaintiff’s first and fourth causes of action, in which 21 Plaintiff asserts DRC failed to accommodate her religious beliefs in violation of Title VII 22 and FEHA, respectively. (Doc. No. 8-1 at 10.) These claims are based on Plaintiff’s 23 allegation of her “religious objection to supporting a transgender co-worker’s transition or 24 using an employee’s preferred pronoun” that DRC refused to accommodate. (FAC ¶ 30; 25 see id. ¶¶ 31–32, 70–71.) 26 Both Title VII and FEHA “require employers to accommodate [an employee’s] 27 religious beliefs unless doing so would impose an undue hardship.” Bolden-Hardge v. Off. 28 of Calif. State Controller, 63 F.4th 1215, 1222 (9th Cir. 2023). These claims are analyzed 1 under a two-step, burden-shifting framework: first, the employee must plead a prima facie 2 case of failure to accommodate religion; second, if the employee succeeds, the burden 3 shifts to the employer to “show either that it initiated good faith efforts to accommodate 4 reasonably the employee’s religious practices or that it could not reasonably accommodate 5 the employee without undue hardship.” Sutton v. Providence St. Joseph Med. Ctr., 192 6 F.3d 826, 830 (9th Cir. 1999) (internal citation omitted). 7 To establish a prima facie case of failure to accommodate, a plaintiff must show that 8 “(1) [s]he had a bona fide religious belief, the practice of which conflicted with an 9 employment duty; (2) [s]he informed [her] employer of the belief and conflict; and (3) the 10 employer threatened [her] with or subjected [her] to discriminatory treatment, including 11 discharge, because of [her] inability to fulfill the job requirements.” Heller v. EBB Auto 12 Co., 8 F.3d 1433, 1438 (9th Cir. 1993). 13 Under the first element, DRC does not challenge whether Plaintiff had a bona fide 14 religious belief, but asserts that practice did not conflict with an employment duty. (Doc. 15 No. 8-1 at 10–11.) Specifically, DRC asserts Plaintiff’s factual allegations establish she 16 was willing to use gender neutral pronouns and treat transgender employees with respect 17 in compliance with the Policy, and thus has not alleged a conflict between her religion and 18 the Policy. (Id. at 11.) Therefore, by extension, DRC asserts it is not plausible that it failed 19 to accommodate Plaintiff’s religious beliefs. (Id.) Moreover, DRC does not argue that it 20 initiated good faith efforts to accommodate Plaintiff or was otherwise unable to because of 21 undue hardship. (See generally id.) 22 As an initial matter, Plaintiff argues the prima facie case is an evidentiary standard 23 and not a pleading requirement. (Doc. No. 11 at 11.) In support, Plaintiff invokes 24 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), a pre-Twombly and Iqbal case in which 25 26 27 3 The Ninth Circuit has noted that “FEHA is interpreted consistently with Title VII” so the federal and state law claims are analyzed uniformly. See Ambat v. City & Cnty. of S.F., 757 F.3d 1017, 1023 n.2 (9th 28 1 the Supreme Court held that “an employment discrimination plaintiff need not plead a 2 prima facie case of discrimination.” 534 U.S. at 508; cf. Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A complaint must, however, 4 advance specific averments to show that the plaintiff is plausibly entitled to relief.” Weiss 5 v. Permanente Med. Grp., Inc., ---F. Supp. 3d----, No. 23-cv-03490-RS, 2024 WL 6 3090496, at *2 (N.D. Cal. June 21, 2024). “[Plaintiff] need not prove her case at this 7 juncture, but she must plead enough facts to satisfy the underlying elements of a failure- 8 to-accommodate claim.” Id. (citing Fed. R. Civ. P. 8(a)). 9 As noted, the bulk of DRC’s motion rests on the argument that Plaintiff failed to 10 adequately inform DRC as to how Plaintiff’s religious beliefs conflicted with her 11 employment duties. An employee seeking an accommodation need only provide “enough 12 information . . . to permit the employer to understand the existence of a conflict between 13 the employee’s religious practices and the employer’s job requirements.” Heller, 8 F.3d at 14 1439; see also Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978) (“The employee 15 has the duty to inform [her] employer of [her] religious needs so that the employer has 16 notice of the conflict.”). “Any greater notice requirement would permit an employer to 17 delve into the religious practices of an employee in order to determine whether religion 18 mandates the employee’s adherence,” and if a court may not do so, neither may the 19 employer. Heller, 8 F.3d at 1439 (invoking Fowler v. Rhode Island, 345 U.S. 67, 70 (1953), 20 which held that, in a First Amendment context, a court may not determine whether a 21 particular religious practice is required by the religion). “The employee must, however, 22 relay sufficient information about the conflict between the religious belief and the 23 employer’s practice or policy, not simply the employee’s desired accommodation, in order 24 for an employer to ensure it has met its obligations under both FEHA and Title VII.” Weiss, 25 2024 WL 3090496, at *3. 26 First, Plaintiff asserts a conflict exists between her religious beliefs and the Policy’s 27 provision which states that not using an employee’s preferred pronoun constitutes 28 harassment. (Doc. No. 11 at 12 (citing FAC ¶ 8).) As alleged in the FAC, the Policy states 1 “[t]he intentional or persistent refusal to respect an employee’s gender identity, name, or 2 pronoun is harassment.” (FAC ¶ 8 (emphasis added).) Moreover, the Policy states that 3 “gender-inclusive language can be achieved by simply using a noun in-lieu of a pronoun 4 or by using ‘they/them/their’ as a singular, inclusive pronoun.” (Id. ¶ 10.) In Plaintiff’s 5 response to Ms. White’s email, she clarified that she was “willing and able to refer to 6 gender dysphoric and trans-gender staff and our clients by gender neutral pronouns such 7 as ‘they’ and ‘them’, or by their name.” (Id. ¶ 18 (emphasis added).) Thus, Plaintiff 8 acknowledged that, as required by the Policy, she would either use gender neutral pronouns 9 or the employee’s name. Thus, no conflict exists here. 10 Further, Plaintiff argues “that the requirement for her to offer support to what she 11 believes to be a sin created a conflict between her religious beliefs and the Policy[.]” (Doc. 12 No. 11 at 7; see id.at 9.) Here, the Policy states, “Employees who transition are entitled to 13 the support of DRC management, Human Resources, and their colleagues.” (FAC ¶ 9 14 (emphasis added).) Ms. White’s May 3, 2022 email clarified that “[s]upport means treating 15 co-workers and clients with respect and kindness.” (Id. ¶ 15.) Plaintiff responded to Ms. 16 White’s email, stating “[she was] willing and able to show kindness, love and basic human 17 respect to any member of the LGBTGIA+ community just as [she] would for any other 18 human being.” (Id. ¶ 18 (emphasis added).) Accordingly, Plaintiff fails to allege a conflict. 19 Moreover, Plaintiff asserts DRC refused to engage in any meaningful discussion 20 regarding Plaintiff’s accommodation request. (Doc. No. 11 at 14.) However, on May 4, 21 2022, Ms. White’s email to Plaintiff stated “she was not sure what job requirement 22 PLAINTIFF was requesting an accommodation for, and there was no need for an 23 accommodation if PLAINTIFF was willing to use the pronouns her co-workers and clients 24 requested. Ms. White again asked PLAINTIFF to explain what job requirement conflicted 25 with her religious belief.” (FAC ¶ 17.) Thus, DRC provided Plaintiff with another 26 opportunity to provide clarity regarding the purported conflict. In response, Plaintiff stated 27 she was “willing and able to refer to gender dysphoric and trans-gender staff and our clients 28 by gender neutral pronouns . . . or by their name. [She was] willing and able to show 1 kindness, love and basic human respect[.]” (Id. ¶ 18.) While Plaintiff states DRC still had 2 not informed Plaintiff whether her religious accommodation request was approved or 3 denied by the end of May 2022, it appears Plaintiff failed to provide clarity to DRC about 4 the conflict between her beliefs and the Policy. See Weiss, 2024 WL 3090496, at *4–5 5 (granting motion for judgment on the pleadings on the plaintiff’s failure to accommodate 6 religious beliefs claims because the plaintiff “failed to aver plausibly that she adequately 7 informed [the defendant] of the conflict between her religious beliefs and the Policy” after 8 the defendant sought clarity of the plaintiff’s request). 9 Indeed, this case is distinguishable from Haskins v. Bio Blood Components, No. 10 1:22-cv-586, 2023 WL 2071483 (W.D. Mich. Feb. 17, 2023), an out-of-circuit case relied 11 upon by Plaintiff that is not binding on this Court. (See Doc. No. 11 at 12–13.) In Haskins, 12 the court found the plaintiff had sufficiently established a prima facie case where she 13 alleged that she had a religious belief that conflicted with her employer’s requirement that 14 she use her co-worker’s preferred pronouns. 2023 WL 2071483, at *2. Specifically, the 15 plaintiff alleged “that she asked for a ‘religious accommodation,’ but [her supervisor] 16 denied that request ‘without any consideration’ and asked Plaintiff to write a letter of 17 resignation.” Id. at *1. Here, however, Plaintiff’s request was not denied “without any 18 consideration” and, in fact, Ms. White requested clarification from Plaintiff on two separate 19 occasions but, by the end of May 2022, it appears Plaintiff failed to provide such clarity. 20 Based on the foregoing, Plaintiff has failed to plausibly allege she had a bona fide 21 religious belief which conflicted with DRC’s Policy. Accordingly, the Court GRANTS 22 DRC’s motion to dismiss Plaintiff’s first and fourth causes of action WITH LEAVE TO 23 AMEND. 24 Plaintiff’s third claim asserts both discrimination and retaliation in violation of 25 FEHA, and her fifth claim asserts wrongful termination under California’s common law 26 tort. (FAC ¶¶ 52–64, 78–92.) DRC moves to dismiss Plaintiff’s third claim for 27 discrimination and fifth claim for wrongful termination. (Doc. No. 8-1 at 11–13; 15–16.) 28 Plaintiff states her discrimination claim “is predicated upon Defendant’s failure to 1 accommodate her request for a religious accommodation. Therefore, the theory of disparate 2 treatment does not apply.” (Doc. No. 11 at 14.) She further states her wrongful termination 3 claim “is predicated upon her failure to accommodate and retaliation claims[.]” (Id. at 22.) 4 Because the motion to dismiss is granted as to Plaintiff’s first and fourth claims, the motion 5 is also GRANTED as to Plaintiff’s third claim for discrimination and her fifth claim to the 6 extent they are predicated upon Plaintiff’s failure to accommodate claims. 7 B. Retaliation 8 In Plaintiff’s second and third causes of action raising retaliation claims under Title 9 VII and FEHA, respectively, she avers the submission of religious accommodation requests 10 and her religious beliefs were motivating factors in the termination of her employment. 11 (FAC ¶¶ 47, 58.) 12 Retaliation claims under Title VII and FEHA require three elements. “[A] plaintiff 13 must show (1) involvement in a protected activity, (2) an adverse employment action and 14 (3) a causal link between the two.” Brooks v. City of San Mateo, 229 F.3d 917, 923, 928 15 (9th Cir. 2000) (examining both Title VII and FEHA claims); Bergene v. Salt River Project 16 Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (Title VII). 17 Plaintiff claims retaliation in violation of Title VII and FEHA, alleging her 18 “submission of a religious accommodation request and religious beliefs were motivating 19 factors in the termination of her employment.” (FAC ¶ 47.) DRC argues that, as discussed 20 above, Plaintiff was willing to use appropriate pronouns and treat transgender employees 21 with respect and, therefore, Plaintiff failed to request any accommodation for her religious 22 beliefs. (Doc. No. 8-1 at 14.) Thus, asserts DRC, she never engaged in a protected activity. 23 (Id.) Moreover, DRC argues that even if Plaintiff made a cognizable request for religious 24 accommodation, such a request does not amount to participation in a Title VII proceeding 25 and is not considered protected opposition activity. (Id.) 26 The Ninth Circuit has not clarified whether requesting a religious accommodation 27 constitutes a “protected activity” for Title VII retaliation claim purposes. See Enriquez v. 28 Gemini Motor Transp. LP, No. CV-19-04759-PHX-GMS, 2021 WL 5908208, at *7 (D. 1 Ariz. Dec. 14, 2021) (“Although the Ninth Circuit has not decided whether requesting a 2 religious accommodation constitutes ‘oppos[ing] . . . an unlawful employment practice,’ 3 the Eighth Circuit has determined that it does not.”) (citing EEOC v. N. Mem’l Health Care, 4 908 F.3d 1098 (8th Cir. 2018)). “An employee engages in protected activity when she 5 opposes an employment practice that either violates Title VII or that the employee 6 reasonably believes violates that law.” Westendorf v. W. Coast Contractors of Nev., Inc., 7 712 F.3d 417, 422 (9th Cir. 2013); see also 42 U.S.C. § 2000e-3(a). Plaintiff has not cited 8 to, and the Court is not aware of, any authority suggesting that simply applying for an 9 exemption to an employer requirement based on a protected status constitutes a protected 10 activity. See. N. Mem’l Health Care, 908 F.3d at 1102 (the plaintiff “failed to establish a 11 prima facie case of opposition-clause unlawful retaliation because merely requesting a 12 religious accommodation is not the same as opposing the allegedly unlawful denial of a 13 religious accommodation”) (citation and internal quotations omitted); Trueblood v. Valley 14 Cities Counseling & Consultation, ---F. Supp. 3d----, NO. C23-0269JLR, 2024 WL 15 3965926, at *18 (W.D. Wash. Aug. 28, 2024) (declining to find that requesting a religious 16 accommodation is a protected activity); Small v. Oregon Health & Sci. Univ., No. 3:23-cv- 17 01290-JR, 2024 WL 4137484, at *6 (D. Oreg. Aug. 5, 2024) (same); Brown v. Alaska 18 Airlines, Inc., NO. 2:22-cv-668, 2024 WL 2325058, at *19 (W.D. Wash. May 22, 2024). 19 While there is some authority reflecting that requests for a religious accommodation are a 20 protected activity, this issue was not raised in those cases. See, e.g., Weiss v. Permanente 21 Med. Grp., No. 23-cv-03490-RS, 2023 WL 8430974, at *4 (N.D. Cal. Dec. 4, 2023) (“Title 22 VII and FEHA prohibit an employer from retaliating against an employee who engages in 23 a protected activity, which here is Weiss’s exemption request from the Policy on the basis 24 of her religious beliefs.”); Medrano v. Kaiser Permanente, No. 8:23-cv-02501-DOC- 25 ADSx, 2024 WL 3383704, at *6 (C.D. Cal. July 10, 2024) (evaluating the plaintiff’s 26 retaliation case under FEHA and noting the protected activity was the plaintiff’s request 27 for a religious exemption). 28 /// 1 Thus, based on the foregoing, the Court finds Plaintiff did not “oppose” allegedly 2 || unlawful activity by initiating the accommodations process, and thus was not engaged ina 3 || protected activity. Westendorf, 712 F.3d at 422. 4 Moreover, as noted by DRC, Plaintiff's allegations under her third cause of action 5 ||do not pertain to a retaliation claim, though noted in the heading. (See, e.g., FAC 4 58 6 || (“Defendant intentionally discriminated against Ms. Hasia-Welch’”’); id. § 60 (“Defendant 7 ||\terminated Plaintiffs employment because of her religious creed, and discriminated 8 || against Plaintiff].]’’); id. 61 (“Plaintiff suffered damages because of Defendant’s unlawful 9 || discriminatory actions[.]’’).) 10 Accordingly, the Court GRANTS DRC’s motion to dismiss Plaintiff's second and 11 clams WITH LEAVE TO AMEND. 12 CONCLUSION 13 Based on the foregoing, the Court DISMISSES WITH LEAVE TO AMEND 14 || Plaintiffs FAC and DENIES AS MOOT DRC’s request for Plaintiff provide a more 15 || definite statement under Rule 12(e). Should Plaintiff choose to do so, she may file a Second 16 Amended Complaint curing the deficiencies noted herein by December 27, 2024. 17 || Defendant must file a responsive pleading no later than January 10, 2024. 18 19 IT IS SO ORDERED. 20 || Dated: December 13, 2024 © 21 Hon, Anthony J.Battaglia 22 United States District Judge 23 24 25 26 27 28 13