Holly v. Jewell et al
Filing
27
ORDER by Magistrate Judge Donna M. Ryu granting 19 Partial Motion to Dismiss. Plaintiff's First Amendment claim is dismissed with prejudice to the extent it is based on discrimination in his federal employment due to his religious beliefs or activities. By July 25, 2016, Plaintiff may amend his complaint if he is able to assert a constitutional claim that is distinct from his Title VII claim. Plaintiff's RFRA claim is dismissed with prejudice. The parties shall appear for a further Case Management Conference on August 31, 2016 at 1:30 p.m., and shall file an updated joint case management statement by August 24, 2016. (dmrlc3, COURT STAFF) (Filed on 7/11/2016)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
ROGER HOLLY,
7
Case No. 16-cv-00011-DMR
Plaintiff,
8
v.
ORDER GRANTING PARTIAL
MOTION TO DISMISS
9
SALLY JEWELL,
10
Re: Dkt. No. 19
Defendant.
United States District Court
Northern District of California
11
Plaintiff Roger Holly is an African American man and a licensed minister in the Baptist
12
13
Church who worked for the National Park Service until his termination on March 10, 2014.
14
Plaintiff’s First Amended Complaint (“FAC”) [Docket No. 16] alleges four claims for relief: 1)
15
religious and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42
16
U.S.C. § 2000e et seq., (“Title VII”); 2) retaliation on the basis of religion and race in violation of
17
Title VII; 3) violation of his First Amendment rights to free speech, free exercise of religion, and
18
freedom of association; and 4) violation of the Religious Freedom Restoration Act (“RFRA”), 42
19
U.S.C. § 2000(bb) et seq. Plaintiff brings this action against Defendant Sally Jewell in her official
20
capacity as the Secretary of the United States Department of the Interior.
Defendant now moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss
21
22
Plaintiff’s First Amendment and RFRA claims. Defs.’ Partial Motion to Dismiss (“MTD”)
23
[Docket No. 19]. Defendant argues that both claims are “preempted” by Title VII, which provides
24
the sole remedy for discrimination in federal employment.1 Id. Having considered the parties’
25
1
26
27
28
Defendant describes this as a “preemption” issue. MTD at 7. This term has been used by some
courts in similar circumstances. See, e.g., Tagore v. United States, No. CIV. A. H–09–0027, 2009
WL 2605310, at *10 (S.D. Tex. Aug. 21, 2009), aff’d in part, rev’d in part by 735 F.3d 324 (5th
Cir. 2013); Francis v. Ridge, No. Civ. 2003/0039, 2005 WL 3747434, *3 (D.V.I. Dec. 27, 2005);
Dorsey v. Roche, No. C 00–21070 JW, Docket No. 53 at ECF 13 (N.D. Cal. Oct. 1, 2002). Other
courts use the term “subsumed.” See, e.g., Francis v. Mineta, 505 F.3d 266, 270 (3d Cir. 2007).
1
briefs and oral argument, the court grants Defendant’s motion.
2
I.
FACTUAL BACKGROUND
3
The following facts are set forth in Plaintiff’s FAC. The court focuses on Plaintiff’s
4
allegations relating to his claims for religious discrimination and violation of his First Amendment
5
rights. It does not discuss allegations relating to race discrimination or retaliation, as those claims
6
are not at issue in the present motion.
7
Plaintiff, an African American man, is a Baptist Christian and a gospel minister. He
8
worked at the San Francisco Maritime National Historic Park as a maintenance worker from May
9
2012 until his termination in March 2014. In late November 2013, Plaintiff met with management
officials. Among other things, Plaintiff complained that he had been told that he could not
11
United States District Court
Northern District of California
10
“display” a Bible that he read on his breaks, although other employees were not questioned about
12
the reading materials that they kept for their break times. On November 23, 2013, while on a
13
break and out of uniform, Plaintiff performed a baptism in the seashore adjoining the park. On his
14
next work day, Plaintiff’s supervisor interrogated Plaintiff about the baptism, and questioned him
15
extensively about his religion. On January 28, 2014, Plaintiff's employer issued a Notice of
16
Proposed Termination, followed by a termination decision on March 10, 2014. The final agency
17
decision noted that Plaintiff was terminated for performing a baptism at Aquatic Park.
18
II.
LEGAL STANDARDS
19
A.
20
A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject
Rule 12(b)(1)
21
matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A court will dismiss a party’s claim for lack of
22
subject matter jurisdiction “only when the claim is so insubstantial, implausible, foreclosed by
23
prior decisions of th[e Supreme] Court, or otherwise completely devoid of merit as not to involve
24
a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (citation
25
26
27
28
This court joins yet other courts in describing the issue as whether Title VII provides the exclusive
remedy for discrimination in federal employment. See, e.g., Harrell v. Donahue, 638 F.3d 975,
984 (8th Cir. 2011); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995); Ethnic Emps. of
Library of Cong. v. Boorstin, 751 F.2d 1405, 1407 (D.C. Cir. 1985); White v. Gen. Servs. Admin.,
652 F.2d 913, 916 (9th Cir. 1981).
2
1
and quotation marks omitted). When reviewing a 12(b)(1) motion, the court sculpts its approach
2
according to whether the motion is “facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
3
2000). A facial challenge asserts that “the allegations contained in a complaint are insufficient on
4
their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
5
(9th Cir. 2004). By contrast, a factual attack disputes “the truth of the allegations that, by
6
themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at
7
1039.
8
9
Here, Defendant facially attacks Plaintiff’s First Amendment and RFRA claims pursuant to
Rule 12(b)(1), arguing that they should be dismissed because they are “preempted” by Title VII.
B.
11
United States District Court
Northern District of California
10
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal
12
sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199–200
13
(9th Cir. 2003). When reviewing a motion to dismiss for failure to state a claim, the court must
14
“accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551
15
U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case “only where there is
16
no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal
17
theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)
18
(citation and quotation marks omitted).
19
20
Rule 12(b)(6)
III.
ANALYSIS
Defendant argues that Plaintiff’s First Amendment and RFRA claims assert religious
21
discrimination in a federal workplace, and therefore should be dismissed because Title VII
22
provides the exclusive remedy for discrimination in federal employment. Defendant also argues
23
that since she has been sued in her official capacity, she cannot be held vicariously liable for
24
monetary damages resulting from constitutional violations allegedly committed by Plaintiff’s
25
supervisors.
26
A. Whether Defendant Properly Brings This Motion Under Rule 12(b)(1)
27
As an initial matter, Plaintiff asserts that Defendant’s motion should be denied because she
28
improperly brings it under Rule 12(b)(1) instead of Rule 12(b)(6). According to Plaintiff,
3
1
Defendant’s argument raises an issue of statutory standing (as opposed to Article III standing),
2
which cannot be addressed through Rule 12(b)(1). Pl.’s Opposition (“Opp.”) [Docket No. 20] at 2
3
(citing Maya v. Centex Corp., 658 F.3d 1060, 1067–68 (9th Cir. 2011)). Defendant responds that
4
Plaintiff confuses the issues of standing and preemption. Reply [Docket No. 21] at 6.
5
Although this dispute is styled as a motion to dismiss for lack of subject matter jurisdiction
6
pursuant to Rule 12(b)(1), the more appropriate analysis is under Rule 12(b)(6), which asks
7
whether Plaintiff has failed to state a claim upon which relief can be granted. This case
8
unequivocally raises federal questions which confer subject matter jurisdiction pursuant to 28
9
U.S.C. § 1331. In this motion, Defendant essentially argues that Plaintiff cannot state a claim for
relief under RFRA or the First Amendment because Title VII prevents him from doing so. See,
11
United States District Court
Northern District of California
10
e.g., Francis v. Mineta, 505 F.3d 266, 268 (3d Cir. 2007) (disagreeing with district court’s
12
dismissal of RFRA claim under Rule 12(b)(1) due to lack of subject matter jurisdiction, but
13
affirming result pursuant to Rule 12(b)(6)).
14
15
16
B.
Title VII and Federal Employment
1.
General Principles
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on
17
race, color, religion, sex or national origin. 42 U.S.C. § 2000e et seq. As originally enacted, Title
18
VII did not provide a remedy for federal employees alleging job-related discrimination. Congress
19
filled this loophole through passage of section 2000e–16 as part of the 1972 amendments to Title
20
VII. Brown v. Gen. Servs. Admin., 425 U.S. 820, 825 (1976).
21
In Brown, the Supreme Court took up the question of whether the 1972 amendment
22
“provides the exclusive judicial remedy for claims of discrimination in federal employment.” 425
23
U.S. at 820–21. After review of the legislative history, Brown held that “the congressional intent
24
in 1972 was to [create] an exclusive, pre-emptive administrative and judicial scheme for the
25
redress of federal employment discrimination.” Id. at 829. The court then examined Title VII’s
26
statutory scheme as a whole, and found that “the structure of the 1972 amendment itself fully
27
confirms the conclusion that Congress intended it to be exclusive and pre-emptive.” Id.
28
Brown discussed other contexts in which the Supreme Court has held that “a precisely
4
1
drawn, detailed statute pre-empts more general remedies,” including situations where the
2
preempted statutory or tort remedies were found to undermine exhaustion requirements or
3
narrowly tailored compensation schemes. Id. at 834–35. Brown concluded that “the Civil Rights
4
Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in
5
federal employment.” Id. at 835; see also White v. Gen. Servs. Admin., 652 F.2d 913, 916–17 (9th
6
Cir. 1981) (“[A]llowing additional individual remedies would interfere with th[e] carefully
7
devised scheme [of Title VII] by permitting circumvention of administrative remedies.”); Labtis v.
8
Paulson, No. C 07–3333 RS, 2008 WL 2705004, at *3 (N.D. Cal. July 9, 2008) (applying Brown
9
and White; dismissing federal employee’s tort and contract claims to the extent they challenged
10
race, color, religion, sex, or national original discrimination).
In sum, to date, the Supreme Court and Ninth Circuit have held that Title VII provides the
United States District Court
Northern District of California
11
12
sole remedy for federal employees challenging workplace discrimination. The court now
13
examines Plaintiff's First Amendment and RFRA claims to determine whether they must be
14
dismissed in light of the Title VII “exclusive remedy” rule announced in Brown.
15
2.
Plaintiff’s First Amendment Claim
Plaintiff’s First Amendment claim alleges violation of his right to free exercise of religion,
16
17
free speech, and freedom of association. FAC at ¶¶ 65–79. Plaintiff asserts that he exercised all
18
of these rights by engaging in private religious conduct when he performed a baptism ceremony
19
while on his lunch break. He contends that this act was the motivating factor in Defendant’s
20
decision to terminate him. Plaintiff further states that his employer severely intruded upon his
21
First Amendment rights by prohibiting him from reading the Bible, discussing the Bible or its
22
teachings, denigrating his religious activities, prohibiting interaction with others regarding religion
23
on non-work time, and prohibiting him from engaging in religious activities on non-work time.
24
Id.
25
As discussed above, Title VII provides the sole remedy for discrimination in federal
26
employment. However, the Ninth Circuit has recognized that a plaintiff may bring separate tort or
27
constitutional claims to the extent they fall outside this rubric. Thus, in White, the court noted that
28
“Title VII does not preclude separate remedies for unconstitutional action other than
5
1
discrimination based on race, sex, religion or national origin.” White, 652 F.2d at 917 (citing
2
Carlson v. Green, 446 U.S. 14 (1980); Bivens v. Six Unknown Named Agents, 403 U.S. 388
3
(1971)). Courts therefore must determine whether a plaintiff’s constitutional or tort claims seek
4
remedies for conduct other than discrimination in federal employment.
5
For example, in Nolan v. Cleland, 686 F.2d 806, 814–15 (9th Cir. 1982), the Ninth Circuit
6
addressed whether, in addition to her Title VII claim for sex discrimination, a former federal
7
employee could bring a constitutional claim for violation of due process based on allegations that
8
her employer’s deceit, coercion, and duress caused her involuntary resignation, which constituted
9
a taking of a property interest. Although Nolan argued that her due process claim did not
challenge workplace discrimination, the Ninth Circuit reasoned that the factual predicate for her
11
United States District Court
Northern District of California
10
constitutional claim was the same for her Title VII claim. As such, the Ninth Circuit applied
12
Brown and found that the district court properly struck Nolan’s constitutional claim because Title
13
VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.”
14
Id. (citing Brown, 425 U.S. at 835). But see Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir.
15
1987) (remedy for unconstitutional actions other than employment discrimination not barred by
16
Title VII, even if arising from same core of facts).
17
In Otto v. Heckler, 781 F.2d 754 (9th Cir.), amended by 802 F.2d 337 (9th Cir. 1986), the
18
Ninth Circuit held that “torts which constitute ‘highly personal violation[s] beyond the meaning of
19
‘discrimination’ [are] separately actionable.” Id. at 756–57 (finding that plaintiff could not pursue
20
certain alleged constitutional violations because they were actionable under Title VII; other
21
allegations, although theoretically viable, did not did not amount to a violation of plaintiff’s
22
constitutional right to privacy); see also Brock v. United States, 64 F.3d 1421, 1423–24 (9th Cir.
23
1995) (torts relating to harms from sexual assault and rape may be actionable in addition to claims
24
for Title VII sexual harassment, because rape and sexual assault involved highly personal violation
25
beyond the meaning of discrimination.)
26
In Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir.
27
1985), the court affirmed application of the Brown rule to dismiss constitutional claims to the
28
extent that they “simply restated claims of racial, ethnic or other discrimination cognizable under
6
1
Title VII.” However, the court reversed the dismissal of constitutional claims that “could [not] be
2
asserted in a Title VII lawsuit.” Id. These included the allegation that the Library of Congress had
3
punished the plaintiff organization and its members for their constitutionally protected criticisms
4
of library policies, and had forced the organization to disclose its membership list as a condition of
5
official recognition. Id. The D.C. Circuit found that these assertions fell outside the scope of Title
6
VII, and that nothing in the history of Title VII suggested that Congress intended to prevent
7
federal employees from suing their employers for constitutional violations against which Title VII
8
provides no protection at all. Id.; see also Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir. 1983)
9
(Title VII does not foreclose federal employee’s suit for deprivation of constitutionally protected
property interest without due process based on employer’s failure to follow its own affirmative
11
United States District Court
Northern District of California
10
action plans and regulations).
12
As currently pleaded, Plaintiff’s First Amendment claim is for religious discrimination in
13
employment, including his termination for performing a baptism. Plaintiff's constitutional claim is
14
dismissed with prejudice to the extent that it challenges conduct protected by Title VII. However,
15
the court grants leave to amend to the extent that Plaintiff can state a First Amendment violation
16
that is distinct from his Title VII claim.
17
18
3.
Plaintiff’s RFRA Claim
Defendant argues that Plaintiff’s RFRA claim must also be dismissed, because it
19
challenges conduct for which Title VII provides the sole remedy pursuant to Brown. Plaintiff
20
responds that Brown does not answer the question, because the Brown decision preceded the
21
enactment of RFRA. Plaintiff argues that the Supreme Court’s recent decision in Burwell v.
22
Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) suggests that Title VII is no longer the sole
23
remedy for religious discrimination against federal employees, because RFRA provides an
24
additional avenue of relief.
25
Congress enacted RFRA in 1993. Under Brown, Title VII unequivocally provided the
26
exclusive remedy for claims of religious discrimination in federal employment prior to RFRA’s
27
passage. The question then becomes whether RFRA created an additional remedy for religious
28
discrimination in federal employment. The answer begins with an examination of the
7
1
2
congressional intent expressed through RFRA.
The Religious Freedom Restoration Act provides that the Government cannot impose a
3
law that substantially burdens a person's free exercise of religion unless the Government
4
demonstrates that the law “(1) is in furtherance of a compelling governmental interest; and (2) is
5
the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §
6
2000bb–1(b)(1)–(2). The statute “applies to all Federal law, and the implementation of that law,
7
whether statutory or otherwise, and whether adopted before or after [the passage of RFRA].” 42
8
U.S.C. § 2000bb–3(a).
Legislators introduced RFRA in direct response to the Supreme Court’s decision in
10
Employment Division v. Smith, 494 U.S. 872 (1990). Smith involved two Native American
11
United States District Court
Northern District of California
9
employees who were fired and denied unemployment benefits after they admitted to ingesting
12
peyote as part of a religious ceremony. The state argued that it had a compelling interest in
13
proscribing use of certain drugs pursuant to its controlled substance laws. The employees argued
14
that the prohibition on use of sacramental peyote violated the free exercise clause of the First
15
Amendment. Prior to Smith, the Court traditionally had held that any law that substantially
16
burdened the free exercise of religion was constitutionally permissible only if the Government
17
could establish a compelling interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214–15 (1972);
18
Sherbert v. Verner, 374 U.S. 398, 406 (1963). In Smith, however, the Court concluded that a
19
generally applicable law may survive constitutional scrutiny without demonstration of a
20
compelling interest, even if the law substantially burdened the free exercise of religion. 494 U.S.
21
at 884–85.
22
Congress promptly responded by overturning Smith through the passage of RFRA. This
23
purpose is recognized in RFRA itself: “The Congress finds that in Employment Division v. Smith,
24
494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government
25
justify burdens on religious exercise imposed by laws neutral toward religion; and the compelling
26
interest test as set forth in prior Federal court rulings is a workable test for striking sensible
27
balances between religious liberty and competing prior governmental interests.” 42 U.S.C. §
28
2000bb(a)(4)–(5). See also 42 U.S.C. § 2000bb(b) (“The purposes of this chapter are (1) to
8
1
restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
2
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free
3
exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons
4
whose religious exercise is substantially burdened by government.”); see also S. REP. No. 103–
5
111, at 2, 8–9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1893, 1897–98 (explaining the
6
purpose of RFRA); H.R. REP. No. 103–88, at 1–5 (1993) (same).
Thus, the unambiguous intent of RFRA was to return to the pre-Smith status quo of
7
8
requiring the Government to show a compelling interest for any law that substantially burdened
9
the free exercise of religion. Francis, 505 F.3d at 270; In re Young, 141 F.3d 854, 857 (8th Cir.
10
1998).
United States District Court
Northern District of California
11
Despite the seemingly broad language of RFRA, the legislative history reveals that
12
Congress was careful to circumscribe its reach. Accordingly, in a section captioned “Other Areas
13
of Law are Unaffected,” the Senate Report states: “[a]lthough the purpose of this act is only to
14
overturn the Supreme Court’s decision in Smith, concerns have been raised that the act could have
15
unintended consequences and unsettle other areas of law.” S. REP. No. 103–111, at 12 (1993),
16
reprinted in 1993 U.S.C.C.A.N. 1879, 1902. The Report then discusses a number of areas that are
17
not affected by RFRA, including Title VII. It explains: “[n]othing in this act shall be construed as
18
affecting religious accommodation under title VII of the Civil Rights Act of 1964.” Id. at 13,
19
reprinted in 1993 U.S.C.C.A.N. at 1903. The House Report on RFRA contains nearly identical
20
language. See H.R. REP. No. 103–88, at 7 (1993) (“Nothing in this bill shall be construed as
21
affecting Title VII of the Civil Rights Act of 1964.”).
22
Plaintiff is conspicuously silent on this legislative history. When pressed during oral
23
argument, Plaintiff responded that the Senate Report states that RFRA should not be construed to
24
affect “religious accommodation” under Title VII, but said nothing about “religious
25
discrimination” claims, such as the one championed by Plaintiff. This over-reads the
26
congressional statements. To begin with, the court notes that the House Report broadly states that
27
“[n]othing in this bill shall be construed as affecting Title VII of the Civil Rights Act of 1964,”
28
without parsing between religious accommodation and religious discrimination claims. H.R. REP.
9
1
No. 103–88, at 7 (1993).
2
Moreover, the Supreme Court’s recent decision in Equal Employment Opportunity
3
Commission v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), illustrates the close link
4
between religious discrimination and religious accommodation under Title VII. Title VII prohibits
5
employment discrimination on the basis of a protected trait. It is “an unlawful employment
6
practice for an employer . . . to discriminate against any individual with respect to his
7
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
8
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). This is often referred to as
9
Title VII’s “disparate treatment” provision. Title VII defines “religion” to “includ[e] all aspects of
religious observance and practice, as well as belief, unless an employer demonstrates that he is
11
United States District Court
Northern District of California
10
unable to reasonably accommodate [the] religious observance or practice without undue hardship
12
on the conduct of the employer's business.” 42 U.S.C. § 2000e(j). Under this definition of
13
“religion,” an individual’s “religious practice,” just like his religious belief, is a protected trait
14
“that cannot be accorded disparate treatment and must be accommodated” unless the employer
15
demonstrates undue hardship. Abercrombie, 135 S. Ct. at 2034. In the absence of such a
16
demonstration, a plaintiff may prove religious discrimination by “show[ing] that his need for an
17
accommodation was a motivating factor in the employer's decision.” Id. at 2032. In this way,
18
unlike Title VII claims regarding other protected classifications such as race or gender, claims for
19
religious discrimination are often bound up with the failure to provide a religious accommodation.
20
In short, there is no logical reason to believe that Congress, through the RFRA, intended to leave
21
Title VII as the sole remedy for religious accommodation in federal employment, but somehow
22
treated religious discrimination differently.
23
Although the Ninth Circuit has yet to address the issue, the Third Circuit and Eighth
24
Circuit have both concluded that RFRA was enacted for the limited purpose of overturning Smith,
25
and that Title VII remains the exclusive remedy for religious discrimination in federal
26
employment. In Francis, 505 F.3d 266, the plaintiff filed a RFRA lawsuit alleging that the
27
Transportation Security Administration (“TSA”) violated his right to free exercise of his religion
28
by firing him for not cutting his dreadlocks, which were an expression of his sincerely-held
10
1
religious beliefs. The Third Circuit reviewed the legislative history and found that Congress did
2
not intend RFRA to create an “end run” around Title VII’s legislative scheme. Id. at 271. The
3
8
Third Circuit concluded:
It is not surprising that nothing in RFRA alters the exclusive nature of Title VII
with regard to employees’ claims of religion-based employment discrimination.
Nothing in pre-Smith case law permitted an employee alleging employment
discrimination based on religion to bypass Title VII's exclusive and comprehensive
scheme. Accordingly, since RFRA was only enacted to overturn Smith and restore
pre-Smith case law, the Senate Report merely clarifies that Congress did not intend
RFRA to subsume other statutory schemes . . . . It is equally clear that Title VII
provides the exclusive remedy for job-related claims of federal religious
discrimination, despite Francis’s attempt to rely upon the provisions of RFRA.
9
505 F.3d at 270, 272.
4
5
6
7
10
Similarly, in Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011), the plaintiff postal worker
United States District Court
Northern District of California
11
was a member of the Seventh Day Adventist Church. The plaintiff requested that he not be
12
scheduled to work from sundown on Fridays to sundown on Saturdays as a religious
13
accommodation. After numerous denied requests, the plaintiff stopped working on Saturdays
14
regardless of whether he was scheduled to do so. He was eventually terminated. The plaintiff
15
claimed that the postal service violated Title VII by failing to accommodate his religion, and that
16
his termination amounted to religious discrimination. In addition, the plaintiff pleaded a violation
17
of RFRA for infringement of his religious practice without a compelling interest. The Eighth
18
Circuit reviewed RFRA’s statutory language as well as its legislative history. It concluded that
19
“RFRA was not intended to broaden the remedies for federal employment discrimination beyond
20
those that already existed under Title VII. As a result, Harrell’s claims under RFRA are barred
21
because Title VII provides the exclusive remedy for his claims of religious discrimination.” 638
22
F.3d at 982–84.
23
District courts uniformly have held that where a federal employee asserts a RFRA claim
24
that addresses the same basic injury as a parallel claim asserted under Title VII, the RFRA claim is
25
barred because Title VII provides the exclusive remedy. See, e.g., Tagore v. United States, No.
26
CIV. A. H–09–0027, 2009 WL 2605310, at *7–9 (S.D. Tex. Aug. 21, 2009), aff’d in part, rev’d in
27
part by 735 F.3d 324 (5th Cir. 2013) (“Because plaintiff relies on the same facts to establish both
28
that the defendants violated RFRA by substantially burdening the exercise of her sincerely held
11
1
religious belief, and that the defendants discriminated against her on the basis of her religious
2
belief in violation of Title VII, the court concludes that the plaintiff’s RFRA claim is ‘not
3
sufficiently distinct’ from her Title VII claim to avoid preemption.”); Francis v. Ridge, No. Civ.
4
2003/0039, 2005 WL 3747434, *3 (D. V.I. Dec. 27, 2005) (holding that “Title VII preempts
5
Plaintiff’s RFRA claim”); Dorsey v. Roche, No. C 00–21070 JW, Docket No. 53 at 13 (N.D. Cal.
6
Oct. 1, 2002) (same)2; Molotsky v. Henderson, No. Civ. A. 98–5519,1999 WL 165683, *1 (E.D.
7
Pa. Mar. 9, 1999) (“RFRA’s text and legislative history do not suggest Congressional intent to
8
affect the exclusivity of Title VII remedies to allow federal employees to bring an employment
9
discrimination claim under that Act.”). Plaintiff has not cited a single case permitting a RFRA
claim for religious discrimination in federal employment, and the court is not aware of any.
11
United States District Court
Northern District of California
10
Plaintiff’s chief argument is that the Supreme Court recently characterized RFRA’s
12
purpose as far broader than re-establishing the pre-Smith interpretation of the First Amendment.
13
Burwell, 134 S. Ct. 2751. In Burwell, the Supreme Court held that federal regulations
14
implementing the Affordable Care Act violated RFRA and were therefore unenforceable. The
15
regulations required closely-held corporations to provide health insurance coverage for methods of
16
contraception that contravened the religious beliefs of the companies’ owners. Burwell noted that
17
in amending RFRA through the Religious Land Use and Institutionalized Persons Act of 2000
18
(“RLUIPA”), 114 Stat. 803, 42 U.S.C. § 2000cc et seq.,3 Congress deleted reference to the First
19
2
20
21
22
23
24
25
26
27
28
At oral argument, Plaintiff expended considerable energy discussing an earlier decision in
Dorsey that granted Defendant United States Air Force's motion to dismiss. Plaintiff asserts that
the Dorsey Rule 12 decision demonstrates that the federal government did not argue that the
RFRA claim should be dismissed because Title VII provided the sole remedy for Dorsey’s
religious discrimination claims. Plaintiff further argues that the United States Attorney's Office
(“USAO”) represented the Defendant in Dorsey as well as Defendant in this case, and that this
court should attach legal significance to the fact that the USAO changed its legal position for
purposes of the defense in the instant case. This is a stretch on many levels. First, the court does
not know what the particular Assistant United States Attorney argued in the Dorsey Rule 12
motion, and refuses to speculate. Second, it is crystal clear that at summary judgment, the defense
in Dorsey argued, as it does here, that Title VII prevented plaintiff’s RFRA claim from
proceeding. Dorsey, No. C 00–21070 JW, Docket No. 53 at ECF 13 (N.D. Cal. Oct. 1, 2002).
Finally, the court is not aware of any legal doctrine that prohibits the USAO from taking a
different legal position in this case than it did in Dorsey (which it did not).
3
As explained in Burwell, 134 S. Ct. at 2761–62, as enacted in 1993, RFRA applied to both the
Federal Government and the States, but the constitutional authority invoked for regulating federal
and state agencies differed. In its application to federal agencies, RFRA is based on the
12
1
Amendment, and went further, providing that the exercise of religion “shall be construed in favor
2
of a broad protection of religious exercise, to the maximum extent permitted by the terms of this
3
chapter and the Constitution.” § 2000cc–3(g). Burwell found that it was “not possible to read
4
these provisions as restricting the concept of the ‘exercise of religion’ to those practices
5
specifically addressed in our pre-Smith decisions.” 134 S. Ct. at 2772.
6
There is no question that the majority opinion in Burwell interprets RFRA as “providing
7
very broad protection for religious liberty.” Id. at 2767. However, it is also clear that Burwell did
8
not address the relationship between RFRA and Title VII in federal employment discrimination.
9
The Court expressly noted that its holding was “very specific,” and framed its decision as finding
that enforcement of the Affordable Care Act’s contraceptive mandate against the objecting
11
United States District Court
Northern District of California
10
closely-held for-profit corporations was unlawful under RFRA, where the system available to
12
religious nonprofits to object to the contraceptive mandate constituted an alternative that achieved
13
all of the Government’s aims while providing greater respect for religious liberty. Id. at 2759–60.
14
Plaintiff contends that Burwell found that RFRA applies in the “employment context.”
15
This is word play. Burwell did not address religious discrimination claims by employees. It
16
involves “employment” only to the extent that it relates to an employer’s obligations to provide
17
certain kinds of health insurance benefits. Burwell in no way grapples with Brown’s prior holding
18
that Title VII provides the exclusive remedy for federal discrimination in employment. Plaintiff
19
also cites to passages in Burwell that allegedly support that RFRA applies to “employees.” Opp.
20
21
22
23
24
25
26
27
28
enumerated power that supports the particular agency’s work, but in attempting to regulate the
States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth
Amendment to enforce the First Amendment. City of Boerne v. Flores, 521 U.S. 507, 516–17
(1997). In City of Boerne, however, the Supreme Court held that Congress had overstepped its
Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or
practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id. at
532–34.
Following City of Boerne, Congress passed the RLUIPA. That statute, enacted under Congress’s
Commerce and Spending Clause powers, imposed the same general test as RFRA but on a more
limited category of governmental actions. Cutter v. Wilkinson, 544 U.S. 709, 715–716 (2005).
RLUIPA amended RFRA’s definition of the “exercise of religion.” See § 2000bb–2(4) (importing
RLUIPA definition). Before RLUIPA, RFRA's definition made reference to the First Amendment.
See § 2000bb–2(4) (defining “exercise of religion” as “the exercise of religion under the First
Amendment”).
13
1
at 3–4. These passages, however, address whether RFRA applies to corporations, such as the
2
three plaintiff companies. 134 S. Ct. at 2767–68. Similarly, Plaintiff points to a passage that
3
addresses a concern by the dissent that businesses have used religious belief as a cloak for
4
discrimination on the basis of race or sexual orientation. Opp. at 4, citing 134 S. Ct. at 2783
5
(addressing dissenting opinion at 134 S. Ct. at 2804–05). However, upon close reading, this
6
exchange cannot fairly be interpreted to mean that Burwell effectively has overturned Brown. In
7
sum, although the Burwell majority opinion clearly stands for the proposition that RFRA provides
8
broad protection for religious freedom, any dictum that can be extracted from Burwell about
9
RFRA’s relationship to Title VII amounts to tea leaves at best.
Finally, Plaintiff relies on a document entitled “Guidelines on Religious Exercise and
10
United States District Court
Northern District of California
11
Religion in the Federal Workplace,” issued by The White House, Office of the Press Secretary,
12
dated August 14, 1997 (“Guidelines”).4 The Guidelines discuss Title VII, the Free Exercise
13
Clause of the First Amendment, and RFRA as distinct obligations applicable to federal
14
employment. Opp. at 4–5. As an initial matter, neither party cites any cases regarding the weight
15
that should be accorded to the Guidelines, nor has the court found any. The Guidelines do not
16
clearly identify their source of authority. As far as the court can determine, the Guidelines were
17
drawn up by a committee involving various coalitions, and were issued by the Clinton
18
Administration Office of the Press Secretary. They are not an Executive Order. They also are not
19
regulations or sub-regulatory guidance by an agency, such as the Equal Employment Opportunity
20
Commission, which is tasked with the authority “to issue, amend, or rescind suitable procedural
21
regulations to carry out the provisions” of Title VII. 42 U.S.C. § 2000e–12(a). In short, the
22
Guidelines do not constitute an agency’s interpretation of a statute typically granted some degree
23
of deference.5
24
4
25
26
Office of the Press Secretary, White House, Guidelines on Religious Exercise and Religious
Expression in the Federal Workplace (Aug. 14, 1997),
https://clinton2.nara.gov/WH/New/html/19970819–3275.html.
5
27
28
The courts have established a framework for considering the proper level of deference to be given
to an administrative agency interpretation of a statute or a regulation that the agency is charged
with enforcing and implementing. The starting point to determine the appropriate level of
deference, if any, is the language of the delegation of authority from Congress. Gonzales v.
14
On their face, the Guidelines are intended for internal use. Section 3 of the Guidelines
1
2
state: “These Guidelines shall govern the internal management of the civilian executive branch.
3
They are not intended to create any new right, benefit, or trust responsibility, substantive or
4
procedural, enforceable at law or equity by a party against the United States, its agencies, its
5
officers, or any person.” Guidelines at § F(3). By their own terms, the Guidelines do not confer
6
litigable rights, nor do they address the availability of judicial remedies for federal employees for
7
alleged violations of RFRA. In light of the foregoing, the Guidelines are not entitled to deference
8
in determining the question of whether RFRA provides a separate avenue for challenging religious
9
discrimination in federal employment.
In conclusion, upon review of RFRA, its legislative history, and cases interpreting RFRA,
10
United States District Court
Northern District of California
11
the court finds that Title VII remains the exclusive remedy for religious discrimination in federal
12
employment. Plaintiff’s RFRA claim is therefore dismissed.
13
C.
14
Whether Plaintiff May Seek Monetary Damages for His First Amendment
Claim
Plaintiff brings all of his claims against Jewell in her official capacity as head of the
15
Department of the Interior. Defendant contends that Plaintiff may not seek to recover monetary
16
damages for his First Amendment claim against Jewell because the United States has not waived
17
its sovereign immunity.6 MTD at 6–7.
18
19
“In a suit against the United States, there cannot be a right to money damages without a
waiver of sovereign immunity . . . .” United States v. Testan, 424 U.S. 392, 400 (1976). A suit for
20
damages against federal officers or employees in their official capacity is essentially a suit against
21
the United States and is therefore barred by sovereign immunity absent statutory consent. Gilbert
22
23
v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Moreover, “[a] waiver of sovereign immunity
‘cannot be implied but must be unequivocally expressed.’” United States v. Mitchell, 445 U.S.
24
25
26
Oregon, 546 U.S. 243, 258 (2006). The Guidelines do not appear to have been created pursuant to
any delegation of Congressional authority.
6
27
Plaintiff may seek monetary damages against Jewell under Title VII. West v. Gibson, 527 U.S.
212, 217 (1999).
28
15
1
535, 538 (1980) (quoting United States v. King, 395 U.S. 1, 4 (1969)). The party who sues the
2
United States bears the burden of pointing to such an unequivocal waiver of immunity. Holloman
3
v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (citing Cole v. United States, 657 F.2d 107, 109 (7th
4
Cir. 1981)).
The United States has not waived its sovereign immunity for actions seeking damages for
5
6
constitutional violations. See Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985)
7
(holding plaintiff’s damages claim for violation of his Fourth Amendment rights against the
8
United States was barred by sovereign immunity); Holloman, 708 F.2d at 1401–02 (rejecting
9
claimant’s argument that sovereign immunity did not apply to his due process claim for damages
10
when the federal defendants were being sued solely in their official capacity).
United States District Court
Northern District of California
11
Plaintiff fails to address Defendant’s argument and responds that he does not seek
12
monetary damages from Jewell in her individual capacity.7 Opp. at 7 (emphasis added). In his
13
briefing, he states that he is seeking declaratory and injunctive relief, but does not clarify whether
14
he seeks monetary damages for his First Amendment claim. Id. However, in his FAC, Plaintiff
15
alleges that as a result of Defendant’s violation of the First Amendment, he “suffered harm in the
16
form of past and future lost wages and benefits and other pecuniary loss, including, but not limited
17
to, costs associated with finding other employment.” FAC at ¶ 78.
Plaintiff sues Defendant in her official capacity. FAC at ¶ 2. Plaintiff’s constitutional
18
19
claim for damages is barred by the doctrine of sovereign immunity.
20
IV.
CONCLUSION
For the reasons set forth above, Plaintiff’s First Amendment claim is dismissed with
21
22
prejudice to the extent that it is based on discrimination in his federal employment due to his
23
religious beliefs or activities. By July 25, 2016, Plaintiff may amend his complaint if he is able to
24
assert a constitutional claim that is distinct from his Title VII claims. Such a claim may not seek
25
monetary damages.
26
7
27
28
Plaintiff previously sought damages against Jewell and other dismissed defendants in their
individual capacities under a Bivens claim, but withdrew this claim for relief in his First Amended
Complaint. See FAC.
16
1
Plaintiff’s Religious Freedom and Restoration Act claim is dismissed with prejudice.
2
The parties shall appear for a further Case Management Conference on August 31, 2016 at
3
4
5
6
7
1:30 p.m., and shall file an updated joint case management statement by August 24, 2016.
IT IS SO ORDERED.
Dated: July 11, 2016
______________________________________
Donna M. Ryu
United States Magistrate Judge
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?