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)

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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

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