Keene v. City and County of San Francisco

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 2025
• Docket: 24-1574
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SELINA KEENE; MELODY FOUNTILA, No. 24-1574 D.C. No. Plaintiffs - Appellants, 4:22-cv-01587-JSW and MEMORANDUM* MARK MCCLURE, APRIL MONEGAS, DAVID GOZUM, CHARLOTTE R SANDERS, THADDEUS SALEEM SHAHEED, JESSE MURILLO, RICARDO TREJO, PHILIPPE J CABRAL, DENISE ANGELINA DEBRUNNER, GREGORY EDWARD LATUS, PHILIP CHARLES HELMER, GERALD BURTON NEWBECK, JOHN LEONG, JONATHAN SHIROI TONG, ALICIA ANN WORTHINGTON, MIGUEL GONZALEZ, JOSEPH JOHN PORTA, ROGER CORMIER MORSE, RUBEN ANTONIO AGUIRRE, RANDALL M. SOOHOO, JOHN PAYTON QUINLAN, ANTONIO LANDI, ANTHONY SRINIVAS, JOSE GUARDADO, MELISSA BORZONI, ANDREW MALONEY, PENNI EIGSTER, TARA AMADO, DANIELLE

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BOLOGNA, SARAH BADR, KIERA NOELLE O'SHEA, MARILYN TAYLOR, SUSAN RUTH DOWNS, ROBERT SETH GELLER, NOVIA CHANDRA- MADEJSKI, RUNJOHNYA BURGESS, KATRINA ANN MEIER, DEREK WRAY, WILLIAM DANIEL BRENNAN, EUGENIA MARIE CASTEEL, HECTOR MANUEL RODRIGUEZ, NORMA ANNE SEPULVEDA, HECTOR RODRIGUEZ, CHRISTOPHER JOSEPH KROL, MICHAEL JOHN BOUVIER, VALERIO JOSIF, DORIS NAUER, VIVIAN HYUN, ALDEN FRANCISCO BELLO, YOHEI KAKUDA, HEATHER SUSAN TYKS, VINCE BRYANT- TEASDALE, OLIVER SAMPSON HUGHES, JOHANNA JOSEPHA COBLE, JERRY WAYNE SCHULZE, ZHANGRUI NIE, MARCOS PALACIO, GENTA YOSHIKAWA, KENT NISHIMURA, SIMON CAN HUI YEP, CHRISTOPHER SMITH, GLEN RYAN IDETA, MATTHEW VINCENT JUAN, MICHAEL PATRICK BOURNE, DERELL RUTHERFORD, SUZANNE BORG, DENISE AREVALO, MEGAN BOYLE, ELIZABETH NG, SASA GALUEGA, PRISCILLA SAU LENH, ANDREA SALFITI, ERIC M. PRADO, PAUL GABRIEL JACOWITZ, JEFFREY STEVEN MILLER, RACHID AMGHAR, MICHAEL GLISSON, JR., LEROY L. VANCE, KEVIN ZAPANTA CONTRERAS, JOSEPH STEPHEN

2 24-1574 JACOWITZ, NATHAN SABLAN, DICKMAR NOVA RODAS, VICKI LYNN SOLLS DAVIS, MARIA MARCELA HODGERS, JOAQUIN VALLE, ATTILA MICHAEL FOTI, KEVIN BRESTON, ALEXANDER LAVROV, LENARD MORRIS, REGINALD BERNARD SNELGRO, ROBERT T. KRUGER, LUSIANA BARAJAS, NICOLE BOWMAN, ABBY MARA THRASHER, MONICA LISSETTE GUTIERREZ, ORCHID ZOE SOH, RONALD MICHAEL TOLENTINO, JESSICA LYNN JOHNSON, CORA HERMOSO, MEAGEN CAROLYN CLENDENEN, KARLYNE MICHELLE KONCZAL, LEONIDAS ROSALES ESCALANTE, JOSEPH JOHN CASTEEL, JUAN PABLO PONCIA, JOHN JOSEPH MULLEN, KAITLYN MICHELLE VALENCIA, OWEN GLEN BRANTLEY, NUBIA VARGAS, KRISTIN C. LAVELLE, DHEYANIRA E. CALAHORRANO, MEI MEI ZHU, KEVIN RUSSELL GUSTAFSON, MICHAEL ANTHONY SORINI, MARTIN JOSEPH WALSH, PATRICK GERARD DALY, REFUGIO J. GARCIA, RANDALL RAY GERHART, PATRICK FRANCIS MULLEN, TINA LOUISE SANCHEZ, WALTER SANTO VARO, SCOTT PEPITO, JAMES R. SUTHERLIN, RICHARD DAVID FIELDS, CHASE RODRIGUEZ, MICHAEL ROYCE,

3 24-1574 Plaintiffs,

v.

CITY AND COUNTY OF SAN FRANCISCO,

Defendant - Appellee,

and

LONDON BREED, CAROL ISEN, SAN FRANCISCO PUBLIC LIBRARY, MICHAEL LAMBERT, City Librarian, SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH, BHANU VIKRAM, LAWRENCE P. LINDISCH,

Defendants.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted December 10, 2024 Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON, District Judge.**

Appellants Selina Keene and Melody Fountila, two former employees of the

** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation.

4 24-1574 City and County of San Francisco (“CCSF”), were denied religious exemptions to

CCSF’s COVID-19 vaccination requirement. Appellants filed a lawsuit claiming

that CCSF violated Title VII of the Civil Rights Act of 1964 and California’s Fair

Employment and Housing Act (“FEHA”) by failing to accommodate their religious

beliefs. Appellants also moved for a preliminary injunction requiring CCSF to

accommodate their religious beliefs by allowing them to work remotely or to work

in-person while wearing personal protective equipment (“PPE”) and regularly

testing for COVID-19. The district court denied the motion, but this Court reversed

and remanded with instructions to reevaluate certain arguments. On remand, the

district court again denied preliminary relief finding that Appellants failed “to

establish that they will suffer irreparable harm or that the public interest weighs in

their favor.” Appellants challenge the district court’s conclusion on appeal. We

have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand.

“We review a district court’s denial of a preliminary injunction for abuse of

discretion.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

2011). A district court abuses its discretion when it utilizes “an erroneous legal

standard or clearly erroneous finding of fact.” Id. (quoting Lands Council v.

McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc), overruled in part on other

grounds by Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008)).

A party seeking a preliminary injunction must establish (1) a likelihood of

5 24-1574 success on the merits; (2) a likelihood of irreparable harm absent preliminary relief;

(3) the balance of equities tips in the movant’s favor; and (4) the injunction is in the

public interest. Id. (citing Winter, 555 U.S. at 20). “When the government is a

party,” the third and fourth factors “merge.” Drakes Bay Oyster Co. v. Jewell, 747

F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

Insofar as Appellants argue for injunctive relief under FEHA, Cal. Gov. Code

§ 12940(b), California law governs. See Sims Snowboards, Inc. v. Kelly, 863 F.2d

643, 646–47 (9th Cir. 1988) (finding that state substantive law controls whether

injunctive relief is appropriate); cf. Sonner v. Premier Nutrition Corp., 971 F.3d 834,

842 (9th Cir. 2020) (applying federal law in denying equitable restitution but noting

that “state law controls whether a federal court should grant preliminary injunctive

relief” (citing Sims, 863 F.2d at 646–47)); see also Mason & Dixon Intermodal, Inc.

v. Lapmaster Int’l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011) (“When a [federal]

court . . . hears state law claims based on supplemental jurisdiction, the court applies

state substantive law to the state law claims.”).

1. The district court did not analyze Appellants’ likelihood of success on the

merits despite this Court’s instruction to do so. Even so, “[l]ikelihood of success on

the merits is a threshold inquiry and is the most important factor.” Env’t Prot. Info.

Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020). It should not have been ignored.

To establish a prima facie case for religious discrimination under a failure-

6 24-1574 to-accommodate theory, an employee must show “(1) [s]he had a bona fide religious

belief, the practice of which conflicts with an employment duty; (2) [s]he informed

h[er] employer of the belief and conflict; and (3) the employer discharged,

threatened, or otherwise subjected h[er] to an adverse employment action because

of h[er] inability to fulfill the job requirement.” Berry v. Dep’t of Soc. Servs., 447

F.3d 642, 655 (9th Cir. 2006) (citation omitted); Bolden-Hardge v. Off. of Cal. State

Controller, 63 F.4th 1215, 1222 (9th Cir. 2023) (courts evaluate FEHA claims under

the Title VII framework). Both Title VII and FEHA require reasonable

accommodations for such religious beliefs, unless doing so would impose an “undue

hardship” on the employer. 42 U.S.C. § 2000e(j); Cal. Gov’t Code § 12940(l)(1).

“‘[U]ndue hardship’ is shown when a burden is substantial in the overall context of

an employer’s business.” Groff v. DeJoy, 600 U.S. 447, 468 (2023); Cal. Gov’t Code

§ 12926(u) (defining “[u]ndue hardship” as “an action requiring significant difficulty

or expense”).

Here, Appellants possessed genuine religious beliefs which conflicted with

taking the COVID-19 vaccine, requested religious exemptions, and were

constructively fired for their noncompliance. As CCSF concedes, Appellants

“retire[d] to avoid termination.” This occurred despite alternative accommodations

being available to CCSF. CCSF could have allowed remote work for the duration

of pandemic, allowed in-person work with PPE and regular COVID-19 testing, or

7 24-1574 limited Appellants’ contact with unvaccinated members of the public. Instead, the

record does not reflect that CCSF seriously considered any religious

accommodation.1 CCSF has failed to show these proposed measures imposed an

“undue hardship” given their minimal cost and considering that during the relevant

time period Appellants’ worksite hosted thousands of appointments with members

of the public, regardless of their vaccination status. Groff, 600 U.S. at 470–71

(requiring courts to consider “the particular accommodations at issue and their

practical impact in light of the nature, size and operating cost of [an] employer”

(internal quotations and citations omitted) (alteration in the original)); Cal. Gov’t

Code § 12926(u). Thus, Appellants have demonstrated a strong likelihood of

success on the merits under both Title VII and FEHA.

2. The district court abused its discretion in concluding that Appellants failed

to show irreparable harm. First, the district court did not analyze irreparable harm

under state law. See Harris v. City of Santa Monica, 56 Cal. 4th 203, 234 (2013)

(noting that FEHA authorizes injunctive relief “to stop discriminatory practices”).

In California, loss of employment is sufficient to establish irreparable harm. See,

e.g., Costa Mesa City Emps.’ Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298,

305–07 (Cal. Ct. App. 2012) (finding irreparable harm when employees “were in

1 CCSF had denied Appellants’ vaccine exemption requests, in part, based on its conclusion they did not have sincerely held religious beliefs.

8 24-1574 serious peril of being terminated”); Barajas v. City of Anaheim, 15 Cal. App. 4th

1808, 1811–13 (1993) (finding irreparable harm when law preventing street vending

would “destroy the [vendors’] livelihoods”); cf. Soc. Servs. Union v. County of San

Diego, 158 Cal. App. 3d 1126, 1131 (1984) (declining to stay a writ of mandate

“because of irreparable damage to the employees” arising from the loss of two paid

days off).

Nor did the district court properly evaluate the tension between Appellants’

career choice and their faith under federal law. Generally, “the temporary loss of

income, ultimately to be recovered, does not usually constitute irreparable injury.”

Sampson v. Murray, 415 U.S. 61, 90 (1974). But the “circumstances surrounding

an employee’s discharge, together with the resultant effect on the employee, may so

far depart from the normal situation that irreparable injury might be found.” Id. at

92 n.68. This can include “emotional and psychological” harms associated with

termination. See, e.g., Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 710

(9th Cir. 1988); EEOC v. BNSF Ry. Co., 902 F.3d 916, 928–29 (9th Cir. 2018)

(finding irreparable “dignitary harm” after a plaintiff was denied a job due to their

disability); Nelson v. NASA, 530 F.3d 865, 881–82 (9th Cir. 2008), rev’d on other

grounds, 562 U.S. 134 (2011) (finding the “stark choice” between “constitutional

rights or loss of [plaintiffs’] jobs” to constitute irreparable harm given the “emotional

damages and stress, which cannot be compensated by mere back payment of

9 24-1574 wages”).

Appellants’ coerced decision between their faith and their livelihood imposed

emotional damage which cannot now be fully undone. See Chalk, 840 F.2d at 709–

10. In the analogous First Amendment context, the Supreme Court has recognized

that the loss of protected religious freedoms, “for even minimal periods of time,

unquestionably constitutes irreparable injury.” Roman Cath. Diocese of Brooklyn v.

Cuomo, 592 U.S. 14, 19 (2020) (citation omitted). Such a crisis of conscience is

evidenced here as Appellants specifically described being “distraught” and

“depressed” due to the resulting stigma of having their “career[s] . . . pulled out from

underneath” them. This is unsurprising given that they had dedicated decades of

their careers to CCSF and found fulfilment in their chosen professions of serving

disadvantaged members of society. Thus, CCSF’s finding that Appellants’ religious

beliefs were insufficient to warrant any accommodations can only be described as a

“dignitary affront.” EEOC, 902 F.3d at 929. The circumstances surrounding

Appellants’ termination constitute irreparable harm.

Appellants have satisfied their burden to show irreparable harm under both

federal and state law.

3. Finally, the district court did not properly consider the balance of the

equities and the public interest. Enforcing anti-discrimination statutes is in the

public’s interest under both California and federal law. See Armendariz v. Found.

10 24-1574 Health Psychcare Servs., Inc., 24 Cal. 4th 83, 100 (2000) (“There is no question that

the statutory rights established by the FEHA are ‘for a public reason.’” (quoting Cal.

Civ. Code. § 3513)); Albermarle Paper Co. v. Moody, 422 U.S. 405, 417–18 (1975)

(stating that relief under Title VII not only compensates victims but vindicates

broader public interest in deterring future discrimination).

Furthermore, as CCSF’s vaccine requirement is no longer in place, there is no

burden on CCSF for Appellants’ noncompliance. Meanwhile, Appellants remain

constructively terminated—forced to choose between their religious beliefs and their

careers. Given that the equitable purpose of a preliminary injunction is to preserve

the “status quo ante litem,” relief is warranted here. GoTo.com, Inc. v. Walt Disney

Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (noting that “status quo ante litem refers

not simply to any situation before the filing of a lawsuit, but instead to ‘the last

uncontested status which preceded the pending controversy’” (quoting Tanner

Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963))).

***

Accordingly, we reverse the district court’s denial of the preliminary

injunction and remand with directions to the district court to grant the preliminary

injunctive relief consistent with this memorandum disposition.

REVERSED and REMANDED.

11 24-1574