Allen et al v. Austal USA LLC

Filing 99

ORDER granting in part 86 Motion for Summary Judgment filed by Austal USA, LLC. Signed by District Judge Kristi K. DuBose on 1/3/2025. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD ALLEN and JEREMY GUY,
Plaintiff,
v.
AUSTAL USA, LLC,
Defendant.

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Civil Action No. 1:22-cv-00328-KD-B

ORDER
This action is before the Court on the Motion for Summary Judgment, (Doc. 86), and the Brief
in Support, (Doc. 87), filed by Defendant Austal USA, LLC (“Austal”); the Response, (Doc. 94),
filed by Plaintiffs; and Austal’s Reply, (Doc. 97). This action involves the claims of numerous
Plaintiffs under a variety of theories regarding Austal’s vaccine mandate during the COVID-19
pandemic. This order addresses the claims of Plaintiffs Richard Allen and Jeremy Guy
(“Plaintiffs”). Upon consideration, and for the reasons below, the motion is GRANTED in part.
I.

Findings of Fact1

A. Austal USA, LLC
Austal is a federal contractor as it contracts with the United States Navy to build ships. At all
relevant times, Austal has had in place an Equal Employment Opportunity policy, which prohibits
discrimination based on protected characteristics including religion. The policy directed
employees who believed that they had been subjected to discrimination or harassment to report it
to Human Resources. During the relevant time period, Rusty Murdaugh (“Murdaugh”) was
Austal’s president; Mike Bell (“Bell”) worked as Vice President of Operations; Sandra Koblas
(“Koblas”) was Vice President of Human Resources; Samuel Cordts (“Cordts”) was Director of
1 The “facts,” as accepted at the summary judgment stage, “may not be the actual facts of the case.”

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
1

Health and Safety; Rodney Patrick was the Employee Relations Manager; Ryan Lee (“Lee”) was
Senior Manager of Training and Organizational Development; Bridget Jewett was a Human
Resources Business Partner; and Jeanette Whatley was an Occupational Nurse Coordinator.
B. Plaintiffs’ Positions at Austal
While at Austal, Plaintiffs held a variety of job positions, including fitter, welder, electrician,
and supervisor. These positions required Plaintiffs to regularly work with others on their team or
crew. Plaintiffs also regularly attended start of shift meetings with their crews, which was
comprised of approximately 12–20 people.
C. COVID-19 Pandemic and Austal’s Response
The World Health Organization (“WHO”) declared COVID-19 as a pandemic on March 11,
2020. National Library of Medicine, https://pmc.ncbi.nlm.nih.gov/articles/PMC7569573/ (last
visited Dec. 2, 2024). Austal was still considered an essential employer, given that it was charged
with building ships for the United States Navy. As such, Austal provided to employees who had
immune issues or otherwise had concerns regarding the pandemic with leave in the Spring of 2020.
Austal, where possible, put into place social distancing requirements. Austal required employees
to wear masks and provided masks to employees. Austal provided hand sanitizer to employees.
Austal employed cleaning crews to perform extra cleaning, particularly in areas where an
employee had tested positive for COVID-19. Austal tracked COVID-19 cases by work area in an
effort to engage in contact tracing. Employees who tested positive for COVID-19, or who were
exposed to COVID-19, were required to quarantine consistent with Centers for Disease Control
(“CDC”) requirements.

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D. Federal COVID-19 Vaccine Mandate and Austal’s COVID-19 Vaccine Mandate
On September 9, 2021, President Joe Biden signed Executive Order 14042 (“EO 14042”). See
Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 FR 50985 (Sep. 9, 2021).
EO 14042 established a requirement that all federal contractor employees be vaccinated. Id. EO
14042 directed the Federal Workforce Task Force to develop workplace COVID-19 safety
standards with which federal contractors governed by the EO would have to comply. Id. In turn,
the Task Force issued guidance on September 24, 2021, requiring the contractors to mandate that
their employees be fully vaccinated (meaning, two weeks after receiving the Johnson &
Johnson/Janssen vaccine or the second dose of the Pfizer or Moderna vaccine) by December 8,
2021, unless granted an exemption. New Guidance on COVID-19 Workplace Safety for Federal
Contractors, WHITE HOUSE https://www.whitehouse.gov/omb/briefing-room/2021/09/24/newguidance-on-covid-19-workplace-safety-for-federal-contractors/ (last visited Dec. 3, 2024).
On or about November 5, 2021, the Occupational Safety and Health Administration (“OSHA”)
issued an Emergency Temporary Standard (“ETS”) that would require employers of 100 or more
employees to perform periodic testing of unvaccinated employees. See COVID-19 Vaccination
and Testing; Emergency Temporary Standard, 86 FR 61402 (Nov. 5, 2021). That ETS was
ultimately withdrawn by OSHA in January 2022. See COVID-19 Vaccination and Testing;
Emergency Temporary Standard, 87 FR 3928-01 (Jan. 26, 2022).
Shortly before entry of EO 14042, Austal implemented a mandatory vaccination policy for
Austal’s leadership, which required those employees to be vaccinated by October 8, 2021. The
October 8, 2021, deadline was later extended to align with the federal mandate of EO 14042.
On October 1, 2021, Austal issued a communication to its workforce regarding the federal
mandate. In that communication, employees were informed that Austal was subject to the federal

3

mandate and that all employees were required to receive and report receipt of the Johnson &
Johnson/Janssen vaccine or their first shot of the Pfizer or Moderna vaccine by October 27 and the
second doses of the Pfizer or Moderna vaccine by November 24. In that same communication,
Austal informed its employees that any employee who had a disability, who was pregnant, who
was a nursing mother, who had a qualifying medical condition contraindicating vaccination, or
who objected to being vaccinated on the basis of a sincerely-held religious belief/practice could
request an exemption from the vaccination. Many Austal employees discussed the mandate, as
well as their position on taking the vaccine. Guy recalls discussing his vaccination decision with
his supervisor. (Doc. 83-4 at 11). Allen recalls discussing his vaccination decision with his wife,
uncle, and pastor as well as another Austal employee (Scott Norsworthy) and in morning meetings.
(Doc. 83-4 at 6).
Austal hosted onsite vaccination clinics on October 7, 8, 14, 15, 21, 22, 26, and 27 in an effort
to assist employees in obtaining the vaccination. On October 5, 2021, Austal provided employees
with specific instructions on how to request an exemption. The internal deadline set for the
submission of religious exemption requests was October 15, 2021.
Austal also required unvaccinated workers—but not vaccinated employees—to wear masks.
And Austal allowed only vaccinated employees to wear stickers indicating that they were
vaccinated.
E. Accommodation/Exemption Process for Religious Exemptions
Human Resources provided each employee requesting an exemption with a request form. The
form asked the employee to provide information about the religious belief precluding vaccination,
including whether a pastor or minister could be contacted. Austal did not question or analyze

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whether an employee had a sincerely held religious belief. In other words, Austal assumed that the
stated belief was sincerely held and proceeded to the undue hardship analysis.
As part of the evaluation process, Human Resources met with each employee’s
management/supervisory team to discuss the employee’s job interactions with others (such as coworkers, managers, and customers). The information gathered was used to determine what, if any,
safety protocols the employee would have to follow if his/her request for exemption was granted.
F. Plaintiffs’ Requests for Accommodation/Exemption
Plaintiffs (for purposes of this brief) submitted religious exemption requests. These exemption
requests included but were not limited to: statements regarding the body as a temple; contentions
that the COVID-19 vaccine was derived from aborted fetal cells and that the Bible forbids murder;
and reliance upon various passages of Scripture.
G. Austal’s Attempts to Accommodate
In total, Austal received almost 160 religious exemption requests. Human Resources
interviewed the management/supervisory teams of all employees but determined that no employee
worked in isolation and that each employee had regular interactions with other employees.
Lee sought health and regulatory guidance on how to preserve employee safety and health if
they were not vaccinated. Lee consulted with medical and health personnel both at the University
of South Alabama and the Mobile County Health Department. Through those discussions, and in
consideration of the anticipated OSHA ETS, Austal determined that unvaccinated employees
would be required to submit to bi-weekly onsite testing provided by Austal, as well as continued
masking and social distancing where possible.
In an effort to evaluate the feasibility of a bi-weekly onsite testing program, Austal assessed
the cost, mechanics, and logistics of how the program would work for the nearly 160 employees

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requesting religious exemptions—while bearing in mind that Austal could not require employees
to pay for their own tests. Lee assembled a spreadsheet that took into account the cost of the test
itself, the fact that the employees would be on-the-clock for the approximate thirty minutes of
testing, the costs of administrative labor in supervising and tracking testing, and the projected costs
of false positives that would mandate added testing utilizing a medical services vendor and
employee time off work. Lee and Austal took into account that administration of the testing
program

would

require,

among

other

things,

additional

reporting

to

check

the

shift/status/attendance of the unvaccinated employee, communications with the employee’s
supervisor, managing potential non-compliance with testing requirements, preparing tests and
testing sites, witnessing tests, and logging and tracking test results.
Based on the calculations, Austal was facing an approximate cost in excess of $1,000,000.00
per year to perform bi-weekly testing, aside from the administrative costs. 2 In consideration of this
estimate, the potential administrative issues, and the obligation to protect the health of its
employees, Austal determined that a bi-weekly testing program would pose a significant undue
hardship on the company and that there was no other feasible method to accommodate those
seeking religious exemptions from the vaccine requirement. Austal looked at what it could
accommodate and granted some medical exemptions but denied all religious exemptions. Austal
did not meet with any of the employees requesting a religious exemption before denying their
requests.

2 Austal USA’s 2021 revenue was $1,176,604,000.00. (Doc. 94-2 at 3).

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H. Plaintiffs’ Termination and Lawsuit
On or about October 22, 2021, a Human Resources representative spoke with employees who
requested religious exemptions and let them know that their request could not be approved. Each
employee was reminded that they had until October 27, 2021, to provide proof of vaccination.
On October 26, 2021, Austal communicated with all employees from whom it did not have
proof of vaccination. Austal asked those who had chosen to not get vaccinated to inform their
Human Resources representatives promptly so that plans could be made for separation of
employment at the end of their shift on October 27, 2021. Austal offered administrative leave for
October 28–29, 2021, for employees who remained undecided about vaccination. These
employees were required to provide proof of vaccination by October 31, 2021. Austal would then
process terminations of any employees who did not verify proof of vaccination by November 1,
2021. No one told Plaintiffs that they were being terminated because of religion.
Plaintiffs’ operative complaint alleges (1) that Austal violated Title VII, 42 U.S.C. § 2000e by
failing to accommodate their religious exemption; (2) that Austal was negligent in the way it
handled the COVID-19 pandemic; and (3) that Austal invaded their privacy by inquiring about
their vaccination status. (Doc. 49).3
II.

Standard of Review

Summary judgment shall be granted “if the movant shows 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 fact is “material” if it “might affect the outcome” of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” a genuine dispute of material fact exists. Id.

3 The Court previously adopted the Report and Recommendation of the Magistrate Judge, (Doc.

59), which dismissed the remaining counts of the amended complaint. (Doc. 60).
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The party moving for summary judgment “bears the initial burden of demonstrating the
absence of a genuine dispute of material fact.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d
1282, 1307 (11th Cir. 2011). The movant meets this burden by identifying affirmative evidence
(pleadings, depositions, answers to interrogatories, admissions on file, etc.) to support its claim
that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Fed. R. Civ. P. 56(c)(1)(A). If the nonmovant bears the burden of persuasion at trial, the movant
may also make a prima facie showing of summary judgment by demonstrating that the
nonmovant’s evidence is insufficient to establish an essential element of its claim. Grange Mut.
Cas. Co. v. Slaughter, 958 F.3d 1050, 1057 (11th Cir. 2020); Fed. R. Civ. P. 56(c)(1)(B).
If the movant meets its burden under Rule 56(c), summary judgment will be granted unless the
nonmovant offers some competent evidence that could be presented at trial showing that there is a
genuine dispute of material fact. Celotex, 477 U.S. at 324. If the movant met its burden by pointing
“to specific portions of the record . . . to demonstrate that the nonmoving party cannot meet its
burden of proof at trial,” the nonmovant must “go beyond the pleadings” to designate specific facts
showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(e).
When assessing a summary judgment motion, the court’s function is not to make “credibility
determinations” and “weigh the evidence.” Anderson, 477 U.S. at 248. Instead, the court must
“view all of the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” FindWhat, 658 F.3d at 1307. Thus, summary judgment
is only proper when a movant shows that no reasonable jury could find for the nonmovant—even
when the evidence and inferences are drawn in the nonmovant’s favor.

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III.

Analysis

Plaintiffs allege three causes of action against Austal: (1) failure to reasonably accommodate
their religious beliefs under Title VII; (2) negligent handling of the COVID-19 pandemic; and (3)
invasion of privacy. (Doc. 94-1). Austal moves for summary judgment as to all claims.
Plaintiffs concede that their negligence claims are “due to be dismissed.” (Doc. 94 at 22).
Therefore, summary judgment is granted in favor of Austal as to Plaintiffs’ claims for negligence.
The remaining questions are whether summary judgment is proper on the reasonable
accommodation claims and the invasion of privacy claims.
A. Reasonable Accommodation under Title VII
Under Title VII of the Civil Rights Act of 1964, employers must reasonably “accommodate
the religious practice of their employees unless doing so would impose an ‘undue hardship on the
conduct of the employer’s business.’” Groff v. DeJoy, 600 U.S. 447, 454 (2023) (quoting 42
U.S.C. § 2000e(j)). A prima facie case of religious discrimination is established when an employee
shows that: (1) he holds a sincere religious belief that conflicts with an employment requirement;
(2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for
failing to comply with the conflicting employment requirement. Morrissette-Brown v. Mobile
Infirmary Med. Ctr., 506 F.3d 1317, 1321 (11th Cir. 2007). Like Austal, for purposes of this
summary judgment order, the Court presumes that Plaintiffs have established a prima facie case
of religious discrimination.
If a prima facie case is established, the burden shifts to the employer to prove that it has
reasonably accommodated the employee or that it cannot reasonably accommodate the employee
without incurring undue hardship. Id. “Reasonably accommodate” is not defined in Title VII, but
“the Supreme Court has explained that a reasonable accommodation . . . ‘eliminates the conflict

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between employment requirements and religious practices.’” Id. (quoting Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 70 (1986)). Austal does not argue that it reasonably accommodated
Plaintiffs’ religious exemption request. Instead, Austal argues that it “has met its burden of
showing that accommodating some 160 employees who refused the COVID-19 vaccine would
result in an undue hardship.” (Doc. 87 at 15).
1. Undue hardship analysis.
The Supreme Court recently clarified the undue hardship standard under Title VII. “Undue
hardship” is shown when an employer’s burden is “substantial in the overall context of an
employer’s business.” Groff v. DeJoy, 600 U.S. 447, 468 (2023). This is a “fact-specific inquiry.”
Id. An employer cannot “escape liability simply by showing that an accommodation would impose
some sort of additional costs.” Id. at 469. Those costs must be “excessive” or unjustifiable” to
qualify as an undue hardship. Id. Thus, the plain language of Title VII requires something closer
to “substantial additional costs” or “substantial expenditures.” Id. In sum, “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.” Id. at 470. “[S]howing ‘more than a de minimis
cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’
under Title VII.” Id. at 468.
In determining whether an employer faced an undue hardship, courts must consider “all
relevant factors in the case at hand, including the particular accommodations at issue and their
practical impact” in the light of the nature, size, and operating cost of an employer. Id. at 470–71.
Impacts on coworkers are relevant only if they affect the conduct of the business. Id. at 472.
Moreover, it is not enough that an employer merely “assess the reasonableness of a particular
possible accommodation or accommodations.” Id. at 473. Courts must consider the context and

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determine whether the employer has reasonably accommodated the employee’s religion or has
shown that granting the accommodation would pose an undue hardship. Id.
Austal provides three ways in which it believes it has demonstrated an undue hardship: (1)
unvaccinated employees would bring an increased risk of contracting and spreading COVID-19;
(2) accommodating the religious exemption requests would bring increased costs; (3) allowing
nearly 160 employees to be unvaccinated would have been a potential violation of federal law. In
support, Austal points to guidance from the Equal Employment Opportunity Commission
(“EEOC”) regarding COVID-19 vaccinations. The EEOC’s notice concerning undue hardship
guides employers to assess the particular facts of the case, including the work setting of the
employee; to rely on objective information; and to consider the number of employees seeking a
similar accommodation (i.e., the cumulative cost or burden on the employer). What You Should
Know About COVID-19 and the ADA, The Rehabilitation Act, and Other EEO Laws, EEOC,
https://www.eeoc.gov/wysk-what-you-should-know-about-covid-19-and-ada-rehabilitation-actand-other-eeo-laws#L (last visited Dec. 3, 2024).
First, Austal argues that the danger in allowing the large number of religious exemption
applications to remain unvaccinated constituted an undue hardship. Austal argues that it relied on
objective data to conclude that unvaccinated employees were at a higher risk of contracting
COVID-19. This data included guidance from the CDC and OSHA. Austal also sought specific
guidance from medical professionals at the University of South Alabama and the Mobile County
Health Department regarding the frequency with which unvaccinated employees would need to be
tested. Austal received this guidance after it engaged in an individual analysis of how closely its
employees would be required to work with other employees if allowed to work while unvaccinated.
Austal argues that the uncontroverted evidence demonstrates that unvaccinated employees were at

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a higher risk of contracting and spreading COVID-19 even with the use of masks, PPE, testing,
and social distancing. Therefore, Austal informed Plaintiffs that it could not accommodate the
requests for a religious exemption.
Austal cites numerous cases to support the proposition that it faced an undue hardship due to
an increased risk of unvaccinated employees contracting and spreading COVID-19. Petersen v.
Snohomish Reg’l Fire & Rescue, No. C22-1674 TSZ, 2024 WL 278973, at *7 (W.D. Wash. Jan.
25, 2024) (concluding, at summary judgment, that an employer could not reasonably accommodate
plaintiffs’ vaccine exemption requests without undue hardship because unvaccinated employees
were at a greater risk of contracting and spreading COVID-19);4 Bordeaux v. Lions Gate Ent.,
Inc., 703 F. Supp. 3d 1117, 1125, 1135 (C.D. Cal. 2023) (concluding, at summary judgment, that
accommodating plaintiff’s vaccine exemption request would have been an undue hardship in part
because, as an actress, plaintiff could not wear PPE which increased the risk of endangering the
plaintiff’s coworkers); Beuca v. Washington State Univ., No. 2:23-CV-0069-TOR, 2023 WL
3575503, at *3 (E.D. Wash. May 19, 2023) (dismissing the plaintiff’s complaint without leave to
amend because employer successfully asserted undue hardship by showing that unvaccinated
healthcare workers bring increased risk of infection), rev’d and remanded, No. 23-35395, 2024
WL 3450989 (9th Cir. July 18, 2024).5 Bushra v. Main Line Health, Inc., 709 F. Supp. 3d 164, 176
(E.D. Pa. Dec. 28, 2023) (concluding, at summary judgment, that employer would suffer undue

4 Peterson is on appeal in the Ninth Circuit.

Beuca was issued before the Supreme Court clarified the “undue hardship” standard under Title
VII in Groff v. DeJoy, 600 U.S. 447 (2023). On appeal, Beuca was remanded to the district court
to examine undue hardship under Groff’s clarified standard. Beuca v. Washington State Univ.,
No. 23-35395, 2024 WL 3450989, at *2 (9th Cir. July 18, 2024).
5

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hardship in part because unvaccinated plaintiff would have caused health risk to coworkers and
vulnerable patients).6
Second, Austal argues that the potential costs to accommodate Plaintiffs’ exemption requests
constituted an undue hardship. Austal points to the factors enumerated by the EEOC, including
reliance on objective information and consideration of the culminative costs of all similar requests,
to prove undue hardship. Austal argues that an estimated cost in excess of $1,000,000.00 per year
to accommodate the exemptions is “certainly more than de minimis.” (Doc. 87 at 18).
Third, Austal argues that—at the time it implemented its vaccine mandate—it understood that
EO 14042 was going to require vaccination of all federal contractor employees. Austal explains
that allowing nearly 160 employees to remain unvaccinated would have been a potential violation
of federal law and would have put its federal contracts at risk. Austal contends that this factor also
shows that accommodating Plaintiffs’ requests would pose an undue hardship.
Plaintiffs respond by arguing that Austal’s process in denying the religious accommodation
requests “is so legally defective that it cannot constitute the ‘substantial evidence’ [Austal] needs
to meet its burden.” (Doc. 94 at 7). Plaintiffs argue that “Title VII requires some affirmative action
by the employer to help resolve the employee’s religious conflict.” (Doc. 94 at 7). In support,
Plaintiffs cite several cases explaining ways in which an employer can reasonably accommodate
employees. See E.E.O.C. v. Texas Hydraulics, Inc., 583 F. Supp. 2d 904, 911 (E.D. Tenn. 2008)
(explaining that the employer could have reasonably accommodated the employee by making other
employees aware of the religious conflict and asking if they would be willing to swap shifts);
E.E.O.C. v. Robert Bosch Corp., 169 F. App’x 942, 944–45 (6th Cir. 2006) (“In addition to
allowing voluntary shift swaps, some employers have curried favor with affirmative actions like

6 Bushra is on appeal in the Third Circuit.

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holding meetings with the employee, attempting to find the employee another job, supplying the
employee with a roster sheet containing the schedules of co-workers, and allowing the employee
to advertise his need for shift swaps during daily roll calls and on the employer’s bulletin board.”).
Plaintiffs also cite caselaw to support the proposition that the employer is obligated to work
with the employee in identifying possible accommodations. See Moates v. Hamilton Cnty., 976 F.
Supp. 2d 984, 993 (E.D. Tenn. 2013) (explaining that the ADA “does require the employer . . . ‘to
initiate an informal, interactive process with the qualified individual with a disability in need of
the accommodation.’” (quoting 29 C.F.R. § 160.2(o)(3)); E.E.O.C. v. Aldi, Inc., No. CIV.A. 0601210, 2008 WL 859249, at *12 (W.D. Pa. Mar. 28, 2008) (“Title VII’s reasonable
accommodation provisions contemplate an interactive process, with cooperation between the
employer and the employee, but which must be initiated by the employer.” (quoting Kenner v.
Domtar Industries, Inc., No. 04-CV-4021, 2006 WL 662466 at *1 (W.D. Ark. March 13, 2006));
Nichols v. Illinois Dep’t of Transportation, 152 F. Supp. 3d 1106, 1124 (N.D. Ill. 2016) (explaining
that a disputed issue of fact existed over the question of undue hardship in part because the
employer never engaged in any dialogue with the employee about his request for accommodation).
In a footnote, Plaintiffs concede that the failure to confer with the employee is not an
independent violation of Title VII. (Doc. 94 at 10 n.2). Indeed, nowhere in Groff v. DeJoy does
the Court use the phrase “interactive process.” 600 U.S. 447 (2023). Moreover, Plaintiffs have not
cited a single case from the Eleventh Circuit which states that an “interactive process” is necessary
before an employer can prove an undue hardship under Title VII. The “interactive process”
requirement comes from the language of the ADA, not Title VII. Even in the ADA context, “an
employer’s failure to engage in the interactive process alone is not an independent basis for liability
. . . .” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014). Therefore, the fact

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that Austal did not communicate with Plaintiffs—after Plaintiffs submitted their accommodation
requests and before Austal denied them—does not preclude Austal from proving it faced an undue
hardship.
The ultimate issue is whether Austal has shown, as a matter of law, “that the burden of granting
an accommodation would result in substantial increased costs in relation to the conduct of its
particular business.” Groff, 600 U.S. at 470. The relevant factors include the nearly 160
accommodation requests and their “practical impact” in the light of Austal’s nature, size, and
operating costs. Id. at 470–71.
The practical impact of Austal reasonably accommodating these requests included increased
health and safety risks for all employees, increased operating costs, and potential violations of
federal law. Plaintiffs’ response argues that the increased health and safety risks associated with
having unvaccinated workers “ignores multiple other realities, including . . . the effect of natural
immunity . . . [and] the fact that vaccinated workers can also contract and transmit” COVID-19.
(Doc. 94 at 12). Next, Plaintiffs argue that Austal’s cost estimate is “equally myopic” and neglects
the nature, size, and operating cost of Austal. (Doc. 94 at 13). Plaintiffs point to the fact that
Austal’s cost analysis treats every proposed accommodation request exactly the same and to the
fact that Austal’s revenue in the fiscal year of 2021 was $1,176,600,000.00.
Plaintiffs also cite another COVID-19 case in which an employer’s motion for summary
judgment was denied: Varkonyi v. United Launch All., LLC, No. 2:23-CV-00359-SB-MRW, 2024
WL 1677523, at *1 (C.D. Cal. Feb. 21, 2024). In Varkonyi, an employer (a federal contractor that
built and launched rockets) implemented a COVID-19 vaccine mandate. Id. The employer denied
all 109 religious exemption applications citing an undue hardship. Id. The employer provided
several reasons for the denial, including evidence that the previous policy of masking, temperature

15

checks, and distancing was inadequate to prevent the spread of COVID-19; that tests were costly
and limited; and that the government required the company to implement a vaccination policy. Id.
The court concluded that the employer failed to show “that a reasonable jury must necessarily find
that accommodating [the plaintiff] would impose undue hardship.” Id. at *6. The court reasoned
that the evidence failed to demonstrate how much it would have cost the employer to accommodate
the objectors. Id. at *5. The court explained that the employer’s cost estimate was based on a
“nationwide testing program” that “assume[d] testing of all employees.” Id. Moreover, the record
indicated that the employer performed weekly testing for employees with medical exemptions and
that the employer had not missed a scheduled launch before implementing the vaccination policy.
Id. The court explained that the purported health effects and cost estimates provided by the
employer neglected the fact that the other 96 percent of the workforce was vaccinated and that it
was not clear why the employer could not continue to meet its scheduled launches. Id. The court
also reasoned that the federal agency requirements for vaccinations were not sufficient to show
undue hardship because the requirements expressly allowed for religious exemptions. Id. at *6.
“In short, [the employer’s] evidence of the burdens it anticipated [was] not tailored to [the
plaintiff’s] accommodation request.” Id.
Here, Plaintiffs compare Austal’s purported reasons with the defendant’s reasons in Varkonyi.
Plaintiffs argue that Austal’s cost projections are inadequate because they do not accurately portray
the cost of accommodation as to any individual or the aggregate plaintiffs. Plaintiffs contend that
Austal’s stated effects neglect that the workforce was partially vaccinated. And Plaintiffs argue
that the government requirements specifically provide religious exemptions. Plaintiffs also point
out that, like the employer in Varkonyi, Austal denied every religious request but granted some

16

medical exemptions that required the same testing. Plaintiffs argue that the same reasons that
precluded summary judgment in Varkonyi preclude summary judgment here.
Austal’s reply distinguishes Austal from the employer in Varkonyi because “Austal took
specific steps to estimate the cost of testing, given the approximate number of employees to be
tested.” (Doc. 97 at 8). Austal argues that the “steps taken by Austal stand in sharp contrast to
those by the employer in Varkonyi.” (Id).
The Title VII undue-hardship standard requires “context-specific application.” Groff, 600 U.S.
at 473. Here, the context is a federal contracting shipbuilder trying to navigate the COVID-19
pandemic. Most of the cases cited by Plaintiffs miss the boat. Plaintiffs illustrate two cases
involving single employees. One employee refused to work on Sundays. E.E.O.C. v. Aldi, Inc.,
No. CIV.A. 06-01210, 2008 WL 859249 (W.D. Pa. Mar. 28, 2008). The other wanted a quiet place
to pray at work. Nichols v. Illinois Dep’t of Transportation, 152 F. Supp. 3d 1106 (N.D. Ill. 2016).
But Plaintiffs’ use of Varkonyi is persuasive because the context is similar.
Varkonyi also involved a federal contractor attempting to navigate the COVID-19 pandemic.
Varkonyi, 2024 WL 1677523. There, the employer unsuccessfully used many of the same reasons
in denying all of its religious accommodation requests (health risks, costs, federal requirements).
And the Varkonyi employer also had employees die of COVID-19. Varkonyi, 2024 WL 1677523,
at *1.
Austal argues that the steps taken by Austal stand in sharp contrast to those by the employer in
Varkonyi. This is partially true. Austal provided evidence of how much it would cost to
accommodate only the roughly 160 religious objectors while the Varkonyi employer only provided
cost estimates for testing its entire workforce. Varkonyi, 2024 WL 1677523, at *5. Thus, the main
difference between Varkonyi and this case is that the evidence demonstrates about how much

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accommodating the religious objectors would cost. The bottom line is whether the increased health
risks and the $1,000,000.00-plus yearly costs were substantial enough to create an undue hardship
on Austal.
At this stage, Austal has not shown that it is entitled to summary judgment on the reasonable
accommodation claim. Although Austal has provided an estimated cost to accommodate, it has not
provided evidence that would establish as a matter of law that it was facing an undue hardship.
Austal has argued that the million dollar per year cost is “certainly more than de minimis.” (Doc.
87 at 18). But that is no longer the standard. According to the Supreme Court, the cost must be
“substantial in the overall context of an employer’s business.” Groff v. DeJoy, 600 U.S. 447, 468
(2023). In other words, the cost must be “excessive” or “unjustifiable” to qualify as an undue
hardship. Id. at 469. Viewing the evidence in the light most favorable to Plaintiffs, a reasonable
jury could conclude that Austal was not facing an undue hardship. Therefore, summary judgment
is denied as to the Title VII claim.
B. Invasion of Privacy
“Alabama has long recognized that a wrongful intrusion into one’s private activities constitutes
the tort of invasion of privacy.” Butler v. Town of Argo, 871 So. 2d 1, 12 (Ala. 2003). Invasion of
privacy consists of four distinct wrongs: (1) intrusion on seclusion; (2) public disclosure of private
information; (3) false light; and (4) appropriation for commercial use. Id. Plaintiffs argue that they
have a claim for the second form: public disclosure of private information which violates ordinary
decency. (Doc. 94 at 18).7

Plaintiffs concede that they do not have a viable claim under the first, third, and fourth forms.
(Doc. 94 at 17).
7

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Plaintiffs contend that Austal publicly disclosed their private information regarding their
vaccination status in two ways. First, by requiring unvaccinated employees—but not vaccinated
employees—to wear masks. Second, by allowing only vaccinated employees to wear stickers.
Public disclosure of private information is an actionable tort when the matter publicized is of
a kind that: “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate
concern to the public.” Ex parte Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000) (quoting
Restatement (Second) of Torts § 652D (1977)). Austal argues that Plaintiffs’ public disclosure
theory regarding their vaccination statuses fails on both elements.
First, Austal argues that the disclosure of Plaintiffs’ vaccination statuses was not highly
offensive to a reasonable person because Plaintiffs openly discussed their vaccination statuses to
others, including those at work. In support, Austal cites Hill v. Branch Banking & Tr. Co., 264 F.
Supp. 3d 1247, 1267 (N.D. Ala. 2017) (granting summary judgment for employer on invasion of
privacy claim because plaintiff publicly discussed the information in question with her coworkers).
Second, Austal argues that the COVID-19 pandemic and the vaccine were matters of public
concern.
In response, Plaintiffs provide four reasons why they believe Austal invaded on their privacy.
First, their invasion of privacy is specific to each Plaintiff. Second, Austal did not provide specifics
as to the timing of Plaintiffs’ alleged disclosures. Third, it is not clear whether Plaintiffs discussed
their vaccination statuses with only those already aware of it or with those who had prior
knowledge. Fourth, there was not a legitimate health interest in disclosing Plaintiffs’ vaccination
statuses.
Plaintiffs also cite Horne v. Patton: “When a patient seeks out a doctor and retains him, he
must admit him to the most private part of the material domain of man. Nothing material is more

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important or more intimate to man than the health of his mind and body.” 287 So. 2d 824, 830
(Ala. 1973) (quoting Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 801 (N.D.
Ohio 1965)). Plaintiffs’ reliance on this quote, however, is misguided. Horne, and the case Horne
quoted, involved a doctor revealing information that the plaintiff provided to the doctor during
treatment. See Horne, 287 So. 2d at 825; Hammonds, 243 F. Supp. at 795. Here, Austal does not
have the same doctor–patient relationship with Plaintiffs. Moreover, the Horne court explained
that “[i]f the defendant doctor in the instant case had a legitimate reason for making this disclosure
under the particular facts of this case, then this is a matter of defense.” Horne, 287 So. 2d at 831.
Plaintiffs are correct that there are material issues of fact concerning whether they openly
discussed their vaccination statuses with coworkers. Guy discussed his vaccination status with his
supervisor, and Allen discussed his vaccination status with his family, pastor, and a coworker. But
there is not undisputed evidence that Guy and Allen “publicly discussed” their vaccination status
with coworkers. Cf. Hill v. Branch Banking & Tr. Co., 264 F. Supp. 3d 1247, 1267 (N.D. Ala.
2017) (plaintiff publicly discussed the topics of the invasion of privacy claim). Therefore, the issue
hinges on whether Austal had a legitimate reason for disclosing Plaintiffs’ vaccination statuses
under the facts of the case.
The Second Restatement of Torts provides: “When the subject-matter of the publicity is of
legitimate public concern, there is no invasion of privacy.” Restatement (Second) of Torts § 652D
(1977). For example, in Middlebrooks v. State Board of Health, an Alabama law required the
disclosure of information regarding HIV and AIDS patients, including names and addresses of
persons infected. Middlebrooks v. State Bd. of Health, 710 So. 2d 891, 891 (Ala. 1998). The
Alabama Supreme Court explained that the disclosure of this information was not an invasion of

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privacy because “the prevention of the spread of HIV and AIDS is a legitimate governmental
interest.” Id. at 892–93.8
Plaintiffs argue that Austal did not have a legitimate interest in knowing their vaccination
statuses for two reasons. First, “the vaccine does not prevent an individual from getting COVID,
nor does it prevent an individual from spreading COVID.” (Doc. 94 at 20). Plaintiffs quote a CDC
article which states that “[v]accines are not always effective at preventing infection . . . .” and
clarifies that the “purpose of the vaccine” is to provided sustained protection against disease and
death. 5 Things You Should Know about COVID-19 Vaccines, CDC (Oct. 13, 2023, 2:00 PM),
https://www.cdc.gov/ncird/whats-new/5-things-you-should-know.html (last visited Dec. 4, 2024).
Second, Austal’s mask policy of only requiring the unvaccinated to wear masks is contrary to
OSHA guidance. Plaintiffs quote a Frequently Asked Questions (“FAQs”) webpage from OSHA
which states: “In areas with substantial or high transmission, employers should provide face
coverings for all workers, as appropriate, regardless of vaccination status.” Frequently Asked
Questions, OSHA https://www.osha.gov/coronavirus/faqs (last visited Dec. 5, 2024). For the same

The Alabama Supreme Court relied on the Westinghouse factors from a Third Circuit case to
determine that the disclosure was justified. Middlebrooks, 710 So. 2d at 891. In Westinghouse,
the court explained:
8

The factors which should be considered in deciding whether an intrusion into an
individual’s privacy is justified are the type of record requested, the information it
does or might contain, the potential for harm in any subsequent nonconsensual
disclosure, the injury from disclosure to the relationship in which the record was
generated, the adequacy of safeguards to prevent unauthorized disclosure, the
degree of need for access, and whether there is an express statutory mandate,
articulated public policy, or other recognizable public interest militating toward
access.
United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir.1980).

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reasons, Plaintiffs argue that Austal had no legitimate interest in knowing who was required to
wear a mask through its sticker policy.
Plaintiffs’ arguments concerning Austal’s interest in its mask and sticker policy are not
persuasive. To start, the CDC article upon which Plaintiffs rely was published in October 2023,
and there is no date associated with the OSHA FAQ webpage. Therefore, these sources do not
prove that Austal lacked a legitimate interest in its mask and sticker policy at the time in question.
More importantly, the sources do not support Plaintiffs’ argument. For example, the OSHA FAQs
guide employers to “provide” masks for all workers, “regardless of vaccination status.” Frequently
Asked Questions, supra. They also note that employers “can suggest or require” that (1)
unvaccinated individuals wear masks in public workplaces and that (2) all individuals wear masks
in public, indoor settings of high transmission. Id. But it does not support Plaintiffs’ argument that
employers lack a legitimate interest in requiring unvaccinated workers to wear masks.
Furthermore, the latter half of the CDC article quoted by Plaintiffs explains that “there is extensive
data showing that these vaccines prevent severe illness and protect the public’s health.” 5 Things
You Should Know about COVID-19 Vaccines, supra.
To determine whether Austal’s mask and sticker policy was of legitimate public concern, the
Court must balance the competing interests of Austal and the plaintiffs. Austal had an interest in
maintaining the health and safety of its workforce. Austal’s actions were based on the obvious
risks of COVID-19, objective data, and federal mandates regarding vaccinations. On the other
hand, the plaintiffs desired to remain unvaccinated and to keep their vaccination statuses private.
At the time, the prevention and spread of COVID-19 was, as a matter of law, a matter of public
concern. Austal relied on objective data to determine that vaccinations and masking would protect
its interests, and the interests of its employees. The potential harm to Plaintiffs—the fact that other

22

employees could infer that Plaintiffs were unvaccinated—does not outweigh the public interest in
requiring unvaccinated workers to wear masks. Therefore, summary judgment is granted in favor
of Austal as to the invasion of privacy claim.
IV.

Conclusion

Plaintiffs allege three causes of action against Austal: (1) failure to reasonably accommodate
their religious beliefs under Title VII; (2) negligent handling of the COVID-19 pandemic; and (3)
invasion of privacy. There is a genuine dispute over whether Austal faced an undue hardship
regarding religious accommodation. Therefore, summary judgment is denied as to Plaintiffs’ Title
VII claims. Plaintiffs have conceded that their negligence claims are due to be dismissed.
Therefore, summary judgment is granted as to Plaintiffs’ negligence claims. No reasonable jury
could find that the prevention and spread of COVID-19 was not a matter of legitimate public
concern. Therefore, summary judgment is granted as to Plaintiffs’ invasion of privacy claims.
DONE and ORDERED this 3rd day of January 2025.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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