NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DAVID LUXTON, Dr., No. 25-3542 D.C. No. Plaintiff - Appellant, 3:23-cv-05238-DGE v. MEMORANDUM* WASHINGTON STATE DEPARTMENT OF VETERANS AFFAIRS,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding
Argued and Submitted May 22, 2026 Seattle, Washington
Before: HAWKINS, CLIFTON, and R. NELSON, Circuit Judges; Partial Concurrence and Partial Dissent by Judge R. Nelson.
Appellant Dr. David Luxton’s brief tenure as the Director of Counseling &
Wellness Programs for the Washington State Department of Veterans Affairs
(“WDVA”) came to an end when he declined to be vaccinated against COVID-19
due to his religious beliefs and the WDVA determined that it could not
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. accommodate his religious exemption from its vaccine mandate without undue
hardship. Dr. Luxton seeks review of the district court’s order granting summary
judgment in favor of the WDVA on his Title VII failure-to-accommodate claim, 42
U.S.C. § 2000e(j). We review de novo the district court’s decision to grant
summary judgment. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th
Cir. 2000). We affirm.
1. The district court correctly determined that accommodating Dr.
Luxton’s exemption from the vaccine mandate would have imposed an undue
hardship on the WDVA, because his position required in-person contact with
healthcare providers and permitting him to perform that role unvaccinated would
expose the providers and their patients to a substantial health and safety risk. Title
VII’s antidiscrimination mandate requires an employer “to reasonably
accommodate” an employee’s “religious observance or practice” unless doing so
would cause the employer “undue hardship.” § 2000e(j). The undue hardship
standard “takes into account all relevant factors in the case at hand, including the
particular accommodations at issue and their practical impact in light of the nature,
size and operating cost of [an] employer.” Groff v. DeJoy, 600 U.S. 447, 470–71
(2023) (alteration in original). “Health and safety costs” can create an undue
hardship in the context of COVID-19 vaccination exemptions. Petersen v.
Snohomish Reg’l Fire & Rescue, 150 F.4th 1211, 1218 (9th Cir. 2025).
2 25-3542 Dr. Luxton asserts that he could have performed the role of Director of
Counseling & Wellness Programs completely via telework, but the undisputed
evidence shows that he had duties which required him to appear in person. The job
description which Dr. Luxton signed upon accepting the position specified that he
was responsible for “clinical oversight of 40 plus contract therapists and their
subcontractors,” and that “[s]ite visits are the primary way in which the
performance of the individual clinical contractor is assessed.” The “[a]bility to
travel throughout the State” was listed as a condition of his employment, as “travel
is a frequent part of the management of contracts to providers located in remote
areas of the State.” Dr. Luxton counters by pointing to a line in the job description
which states that the position is “up to 100% telework authorized based on WDVA
mission requirements.” But this caveated statement does not create a genuine
dispute of fact as to his job’s in-person requirements.
Nor is it disputed that allowing Dr. Luxton to perform his essential in-person
functions while unvaccinated would increase the risk of illness or even death faced
by other WDVA employees and vulnerable veteran populations. In the context of
COVID-19, we have recognized that unvaccinated healthcare employees who work
in “close contact with either patients or staff” can pose a “realistic” and
“substantial” threat to the employer’s operations by heightening the risk of (1)
transmission to patients and other staff, and (2) staff shortages due to illness.
3 25-3542 Williams v. Legacy Health, 174 F.4th 1201, 1204, 1206–07 (9th Cir. 2026); see
also Petersen, 150 F.4th at 1220 (holding that “objective, unrebutted medical
evidence” showed that unvaccinated firefighters would create “significant health
and safety costs” and put at risk the fire department’s “own workforce and persons
in the public needing emergency, even life-saving, services”).
The WDVA submitted an expert report from Dr. John Lynch, in which he
opined that vaccination against COVID-19 lowers an individual’s risk of infection
and transmission and is more effective than alternative measures such as personal
protective equipment or social distancing. The record also included a declaration
from WDVA Director David Puente Jr., stating that 35 veterans in WDVA
facilities died after contracting COVID during the pre-vaccine period when the
department was relying instead on masking, testing, and distancing. Dr. Luxton’s
expert, Dr. Risch, did not contest these points.
Given that Dr. Luxton’s job duties would bring him into contact with
WDVA healthcare providers and the unrebutted medical evidence shows that this
would create a substantial health risk to employees and patients, the undisputed
evidence shows that the WDVA would face undue hardship by accommodating Dr.
Luxton’s request to remain in his role unvaccinated. As this undue hardship
determination is sufficient grounds for us to affirm the district court’s grant of
summary judgment on Dr. Luxton’s Title VII claim, we need not reach the
4 25-3542 independent question of whether he adequately pursued the WDVA’s offer of
reassignment.
2. Dr. Luxton also argues that the district court abused its discretion in
several respects: by entering a protective order to prevent him from taking a
30(b)(6) deposition of the State; denying his request to amend his complaint; and
declining to exercise supplemental jurisdiction over his state law claims. None of
these objections have merit.
First, Dr. Luxton failed to challenge the entry of the protective order in a
motion to the district court. He had been explicitly instructed by the district court
to do so if he wanted to challenge the protective order entered through the court’s
informal discovery dispute resolution process. His objection is therefore waived
on appeal. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir.
2007) (holding that a party generally waives an argument by failing to raise it to
the district court). Similarly, Dr. Luxton’s request for leave to amend his
complaint came too late and in an improper form, raised for the first time in his
summary judgment briefing rather than in a timely motion. “A need to reopen
discovery and therefore delay the proceedings” supports a district court’s denial of
leave to amend based on prejudice. Lockheed Martin Corp. v. Network Sols., Inc.,
194 F.3d 980, 986 (9th Cir. 1999).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DAVID LUXTON, Dr., No. 25-3542 D.C. No. Plaintiff - Appellant, 3:23-cv-05238-DGE v. MEMORANDUM* WASHINGTON STATE DEPARTMENT OF VETERANS AFFAIRS,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding
Argued and Submitted May 22, 2026 Seattle, Washington
Before: HAWKINS, CLIFTON, and R. NELSON, Circuit Judges; Partial Concurrence and Partial Dissent by Judge R. Nelson.
Appellant Dr. David Luxton’s brief tenure as the Director of Counseling &
Wellness Programs for the Washington State Department of Veterans Affairs
(“WDVA”) came to an end when he declined to be vaccinated against COVID-19
due to his religious beliefs and the WDVA determined that it could not
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. accommodate his religious exemption from its vaccine mandate without undue
hardship. Dr. Luxton seeks review of the district court’s order granting summary
judgment in favor of the WDVA on his Title VII failure-to-accommodate claim, 42
U.S.C. § 2000e(j). We review de novo the district court’s decision to grant
summary judgment. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th
Cir. 2000). We affirm.
1. The district court correctly determined that accommodating Dr.
Luxton’s exemption from the vaccine mandate would have imposed an undue
hardship on the WDVA, because his position required in-person contact with
healthcare providers and permitting him to perform that role unvaccinated would
expose the providers and their patients to a substantial health and safety risk. Title
VII’s antidiscrimination mandate requires an employer “to reasonably
accommodate” an employee’s “religious observance or practice” unless doing so
would cause the employer “undue hardship.” § 2000e(j). The undue hardship
standard “takes into account all relevant factors in the case at hand, including the
particular accommodations at issue and their practical impact in light of the nature,
size and operating cost of [an] employer.” Groff v. DeJoy, 600 U.S. 447, 470–71
(2023) (alteration in original). “Health and safety costs” can create an undue
hardship in the context of COVID-19 vaccination exemptions. Petersen v.
Snohomish Reg’l Fire & Rescue, 150 F.4th 1211, 1218 (9th Cir. 2025).
2 25-3542 Dr. Luxton asserts that he could have performed the role of Director of
Counseling & Wellness Programs completely via telework, but the undisputed
evidence shows that he had duties which required him to appear in person. The job
description which Dr. Luxton signed upon accepting the position specified that he
was responsible for “clinical oversight of 40 plus contract therapists and their
subcontractors,” and that “[s]ite visits are the primary way in which the
performance of the individual clinical contractor is assessed.” The “[a]bility to
travel throughout the State” was listed as a condition of his employment, as “travel
is a frequent part of the management of contracts to providers located in remote
areas of the State.” Dr. Luxton counters by pointing to a line in the job description
which states that the position is “up to 100% telework authorized based on WDVA
mission requirements.” But this caveated statement does not create a genuine
dispute of fact as to his job’s in-person requirements.
Nor is it disputed that allowing Dr. Luxton to perform his essential in-person
functions while unvaccinated would increase the risk of illness or even death faced
by other WDVA employees and vulnerable veteran populations. In the context of
COVID-19, we have recognized that unvaccinated healthcare employees who work
in “close contact with either patients or staff” can pose a “realistic” and
“substantial” threat to the employer’s operations by heightening the risk of (1)
transmission to patients and other staff, and (2) staff shortages due to illness.
3 25-3542 Williams v. Legacy Health, 174 F.4th 1201, 1204, 1206–07 (9th Cir. 2026); see
also Petersen, 150 F.4th at 1220 (holding that “objective, unrebutted medical
evidence” showed that unvaccinated firefighters would create “significant health
and safety costs” and put at risk the fire department’s “own workforce and persons
in the public needing emergency, even life-saving, services”).
The WDVA submitted an expert report from Dr. John Lynch, in which he
opined that vaccination against COVID-19 lowers an individual’s risk of infection
and transmission and is more effective than alternative measures such as personal
protective equipment or social distancing. The record also included a declaration
from WDVA Director David Puente Jr., stating that 35 veterans in WDVA
facilities died after contracting COVID during the pre-vaccine period when the
department was relying instead on masking, testing, and distancing. Dr. Luxton’s
expert, Dr. Risch, did not contest these points.
Given that Dr. Luxton’s job duties would bring him into contact with
WDVA healthcare providers and the unrebutted medical evidence shows that this
would create a substantial health risk to employees and patients, the undisputed
evidence shows that the WDVA would face undue hardship by accommodating Dr.
Luxton’s request to remain in his role unvaccinated. As this undue hardship
determination is sufficient grounds for us to affirm the district court’s grant of
summary judgment on Dr. Luxton’s Title VII claim, we need not reach the
4 25-3542 independent question of whether he adequately pursued the WDVA’s offer of
reassignment.
2. Dr. Luxton also argues that the district court abused its discretion in
several respects: by entering a protective order to prevent him from taking a
30(b)(6) deposition of the State; denying his request to amend his complaint; and
declining to exercise supplemental jurisdiction over his state law claims. None of
these objections have merit.
First, Dr. Luxton failed to challenge the entry of the protective order in a
motion to the district court. He had been explicitly instructed by the district court
to do so if he wanted to challenge the protective order entered through the court’s
informal discovery dispute resolution process. His objection is therefore waived
on appeal. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir.
2007) (holding that a party generally waives an argument by failing to raise it to
the district court). Similarly, Dr. Luxton’s request for leave to amend his
complaint came too late and in an improper form, raised for the first time in his
summary judgment briefing rather than in a timely motion. “A need to reopen
discovery and therefore delay the proceedings” supports a district court’s denial of
leave to amend based on prejudice. Lockheed Martin Corp. v. Network Sols., Inc.,
194 F.3d 980, 986 (9th Cir. 1999). The district court was justified in concluding
that granting Dr. Luxton’s request would prejudice the defendants. Finally, the
5 25-3542 district court acted within its discretion by choosing not to retain jurisdiction over
the remaining state-law claims after it had properly dismissed all of Dr. Luxton’s
federal claims. See 28 U.S.C. § 1367(c)(3).
AFFIRMED.
6 25-3542 FILED Luxton v. Washington State Department of Veterans Affairs, No. 25-3542 JUN 25 2026
R. NELSON, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Though I am largely in accord with the majority’s disposition, I reach a
different conclusion on the undue hardship analysis. To successfully demonstrate an
undue hardship affirmative defense, the Washington State Department of Veterans
Affairs (WDVA) needed to show that in the context of its business, its hardship
would be “excessive” or “unjustifiable.” Groff v. DeJoy, 600 U.S. 447, 469 (2023).
On this record, WDVA did not demonstrate that its hardship would be unjustifiable
as it argues that any increase in infection risk was sufficient to satisfy Groff. Such a
general proposition does not meet the Groff legal standard.
Still Title VII allows WDVA to assert an affirmative defense either if WDVA
faced an undue hardship or if it initiated good faith efforts to accommodate the
employee. Bolden-Hardge v. Office of California State Controller, 63 F.4th 1215,
1224 (9th Cir. 2023). WDVA offered Dr. Luxton a reassignment process; the
undisputed facts are unclear whether he engaged in that process. Am. Postal Workers
Union v. U.S. Postal Serv., 781 F.2d 772, 777 (9th Cir. 1986). Accordingly, I would
remand to the district court to determine whether WDVA attempted to reasonably
accommodate Dr. Luxton.