Harvey v. Bayhealth Medical Center, Inc.

Filing 20

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 2/5/2024. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TAMMYM. HARVEY,
Plaintiff,
Civil Action No. 23-92-RGA
V.

BAYHEAL TH MEDICAL CENTER, INC.,
Defendant.

MEMORANDUM OPINION
Gary E. Junge (argued), SCHMITTINGER & RODRIGUEZ, P.A., Dover, DE,
Attorney for Plaintiff.
Stacy A. Scrivani, Alexis R. Gambale, STEVENS & LEE, P.C., Wilmington, DE; Lisa M.
Scidurlo, STEVENS & LEE, P.C., King of Prussia, PA; Michael M. Greenfield (argued), Sasha
A. Phillips, STEVENS & LEE, P.C., Philadelphia, PA; Theresa M. Zechman, STEVENS &
LEE, P.C., Lancaster, PA,
Attorneys for Defendant.

February 5' ,2024

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Before me is Defendant's Motion to Dismiss. (D.I. 12). I have considered the parties'
briefing. (D.I. 13, 14, 16). I heard oral argument on January 4, 2024 on a group of cases,
including the present action, involving religious discrimination claims with regards to
Defendant' s COVID-19 vaccine policy. (Hearing Tr.). 1 For the reasons set forth below, this
motion is GRANTED in part and DISMISSED as moot in part.

I.

BACKGROUND
This case stems from the COVID-19 pandemic and a healthcare provider's efforts to

respond to government vaccination policy. The Amended Complaint (D.I. 6) is the operative
complaint-and alleges the following facts.
On August 12, 2021 , Governor John Camey ordered all Delaware state health care
employees either to become vaccinated for the COVID-19 virus by September 30, 2021 or to
submit to regular testing for the COVID-19 virus. In November 2021, the Centers for Medicare
& Medicaid Services ("CMS") issued a COVID-19 vaccine mandate requiring certain health care
facilities, including Defendant, to ensure their staff members were all either vaccinated against
COVID-19 or had obtained medical or religious exemptions to taking the vaccine.
Pursuant to Defendant's vaccination policy, employees seeking religious exemption
requests were required to submit forms explaining the religious beliefs that formed their basis of
their objection to the COVID-19 vaccine. (See D.I. 6-1 , Ex. A). Employees could attach
additional materials, such as letters from religious leaders, to support their exemption request.
(Id.).

1

Citations to the transcript of the argument are in the format "Hearing Tr. at _ ."
2

Employees who had their religious exemption requests rejected, and continued to refuse
the COVID-19 vaccine, were terminated on February 28, 2022. Plaintiff was one of these
employees. Plaintiff subsequently filed the present suit raising religious discrimination claims
against Defendant under Title VII (Count I) and the Delaware Discrimination in Employment
Act ("DDEA") (Count II). See 42 U.S.C. § 2000e; DEL. CODE ANN. tit. 19, § 711. Defendant
moves to dismiss Plaintiff's claims pursuant to FED. R. Crv. P. 12(b)(6). (D.I. 12).

II.

LEGAL STANDARD
A. Rule 12(b)(6)
Rule 8 requires a complainant to provide "a short and plain statement of the claim

-showing that the pleader is entitled to relief." FED. R. Crv. P. 8(a)(2). Rule 12(b)(6) allows..the
accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule
12(b)(6) motion may be granted only if, accepting the well-pleaded allegations in the complaint
as true and viewing them in the light most favorable to the complainant, a court concludes that
those allegations "could not raise a claim of entitlement to relief." Bell At!. Corp. v. Twombly,
550 U.S . 544, 558 (2007).
The factual allegations do not have to be detailed, but they must provide more than
labels, conclusions, or a "formulaic recitation" of the claim elements. Id. at 555 ("Factual
allegations must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).").
Moreover, there must be sufficient factual matter to state a facially plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facial plausibility standard is satisfied when the

complaint's factual content "allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Id. ("Where a complaint pleads facts that are merely

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consistent with a defendant' s liability, it stops short of the line between possibility and
plausibility of entitlement to relief." (internal quotation marks omitted)).
B. Failure to Accommodate
Title VII makes it unlawful for an employer to discriminate against an employee based on
that employee's religion. 42 U.S .C. § 2000e-2(a)(l). The statute defines "religion" to include
"all aspects of religious observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to an employee's or prospective
employee's religious observance or practice without undue hardship on the conduct of the
employer' s business." 42 U.S.C. § 2000eG).
To establish a p:rima facie case of religious discrimination under Title- VII based on a
failure to accommodate theory, an employee must show that (1) the employee "held a sincere
religious belief that conflicted with a job requirement," (2) the employee "informed their
employer of the conflict," and (3) the employee was "disciplined for failing to comply with the
conflicting requirement." Fallon v. Mercy Cath. Med. Ctr. of Se. Pa. , 877 F.3d 487, 490 (3d Cir.
2017). "Plaintiffs are not required to establish each element to survive a motion to dismiss; they
must simply allege sufficient facts to raise a reasonable expectation that discovery will uncover
proof of their claims." Finkbeiner v. Geisinger Clinic, 623 F. Supp. 3d 458, 465 (M.D. Pa. 2022)
(citing Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)).
A district court' s inquiry into whether a plaintiff has plausibly plead the first prong of a
prima facie religious discrimination claim is limited to determining whether the belief is (1)
"sincerely held" and (2) religious within the plaintiffs "own scheme of things." Welsh v. United
States, 398 U.S. 333 , 339 (1970) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).

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With respect to the first prong ofthis inquiry, " [w]hether a belief is sincerely held is a
question of fact. " Geerlings v. Tredyffrin/Easttown Sch. Dist. , 2021 WL 4399672, at *6 (E.D. Pa.
Sept. 27, 2021) (citing Seeger, 380 U.S. at 185).
With respect to the second prong, determining whether a plaintiffs beliefs are religious
"presents a most delicate question." Africa v. Pennsylvania, 662 F .2d 1025, 1031 (3d Cir. 1981 ).
"[I]t is nonetheless incumbent upon the court to ensure that the alleged beliefs are rooted in a
plaintiffs religion and are entitled to the broad protections guaranteed thereunder." Aliano v.
Twp. of Maplewood, 2023 WL 4398493, at *5 (D.N.J. July 7, 2023) (citing Fallon, 877 F.3d at
490). "The notion that all of life ' s activities can be cloaked with religious significance" cannot
- - transform an otherwise-secular idea into a religious belief. Africa, 662 F.2d at 1035. "[T]he very.concept of ordered liberty" precludes allowing any individual "a blanket privilege 'to make his
own standards on matters of conduct in which society as a whole has important interests. "'
Africa, 662 F.2d at 1031 (quoting Wisconsin v. Yoder , 406 U.S. 205 , 215-16 (1972)).
The Third Circuit has adopted the three Africa factors to differentiate between views that
are "religious in nature" and those that are "essentially political, sociological, or philosophical."
Fallon, 877 F.3d at 490-91 (quoting Seeger, 380 U.S. at 164); Africa, 662 F.2d at 1032. A judge
must determine whether the beliefs in question (1) "address fundamental and ultimate questions
having to do with deep and imponderable matters," (2) "are comprehensive in nature," and (3 )
"are accompanied by certain formal and external signs." Fallon , 877 F.3d at 491 (quoting
Africa, 662 F.2d at 1032) (cleaned up).
The Africa court tackled the issue of analyzing non-traditional "religious" beliefs or
practices by "look[ing] to familiar religions as models in order to ascertain, by comparison,
whether the new set of ideas or beliefs is confronting the same concerns, or serving the same

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purposes, as unquestioned and accepted ' religions. "' Africa, 662 F.2d at 1032 (quoting Malnak
v. Yogi, 592 F.2d 197, 205 (3d Cir. 1979) (Adams, J. , concurring)); Fallon, 877 F.3d at 491
(describing the process as considering "how a belief may occupy a place parallel to that filled by
God in traditionally religious persons."). The Africa factors were adopted as "three 'useful
indicia' to determine the existence of a religion" pursuant to this "definition by analogy"
approach. Africa, 662 F .2d at 1032. Their applicability to a person who professes a more widely
recognized, "traditional" religion is a little less obvious. 2 However, because individuals cannot
"cloak" all personal beliefs "with religious significance," a court must still scrutinize whether a
sincerely held belief, asserted by someone claiming a recognized religion, is sufficiently
connected to their religion. Id. at 1035; see Griffin v. Massachusetts Dep't of Revenue, 2023-WL
4685942, at *5 (D. Mass. July 20, 2023) ("[T]he issue in this case is not whether plaintiff has
asserted a plausible claim that she has a personal religious faith. . . . Plaintiff does not claim that
she has suffered unlawful discrimination because she believes in God. Rather, she claims that
she has suffered unlawful discrimination because she was required to comply with the COVID19 vaccination requirement. The critical question, therefore, is whether the complaint alleges
sufficient plausible facts from which it could be reasonably inferred that being vaccinated against
COVID-19 violates a tenet or principle of her religious belief.").
Of course, individuals may have religious beliefs which are not widely accepted within
their religion. See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 708 (1981) ("The
guarantee of free exercise is not limited to beliefs which are shared by all of the members of a
religious sect"); 29 C.F.R. § 1605 .1 ("The fact that no religious group espouses such beliefs or

2

Plaintiff follows a recognized religion that already meets the three Africa factors . (See D.I.61
17).

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the fact that the religious group to which the individual professes to belong may not accept such
belief will not determine whether the belief is a religious belief of the employee or prospective
employee."). Beliefs of this nature would, logically, fail to be sufficiently linked to the
individual' s claimed religion and need to satisfy the Africa standard to qualify as religious
beliefs.
"[The DDEA] prohibits employment discrimination in statutory language nearly identical
to Title VII." Spady v. Wesley Coll., 2010 WL 3907357, at *3 n. 4 (D. Del. Sept. 29, 2010); see
DEL. CODE ANN. tit. 19, § 71 l(b). "[Courts] evaluate plaintiffs' DDEA claims under the same
framework used to evaluate Title VII claims." Spady, 2010 WL 3907357, at *3 n. 4 (citing

Witcher v. Sodexho, Inc. , 247 F. App'x 328, 329 n. 1 (3d Cir. 2007); Hylandv. Smyrna-Sch.
Dist., 608 F. App'x 79, 83 n. 5 (3 d Cir. 2015) (instructing that "the standards under Title VII and
the DDEA are generally the same").
C. Disparate Treatment
To establish a prima facie case of religious discrimination under Title VII based on a
disparate treatment theory, an employee must show that (1) the employee is "a member of a
protected class," (2) the employee "suffered an adverse employment action," and (3)
"nonmembers of the protected class were treated more favorably. " Abramson v. William

Paterson Coll. of NJ, 260 F.3d 265, 281-82 (3 d Cir. 2001). Depending on whether the plaintiff
proceeds under a pretext or mixed-motive theory, they must ultimately prove that her protected
status was either a "motivating" or a "determinative" factor in the employer' s challenged action.

Connelly, 809 F.3d at 787-88 .

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Ill.

DISCUSSION
A. Failure to Accommodate
At this stage of the case, only one issue exists-whether Plaintiff has sufficiently pled

that the belief upon which her objection to receiving the COVID-19 vaccine was based is a
religious belief. "[T]o adequately plead a ' religious belief,' a plaintiff must allege some facts
regarding the nature of her belief system, as well as facts connecting her objection to that belief
system." Aliano, 2023 WL 4398493 , at *5. "In other words, she must demonstrate that her
objection arises from a subjective belief that is tied to her belief system which meets the Africa
factors. " Id. (citing Africa, 662 F.2d at 1032; Fallon, 877 F.2d at 492-93 (concluding that the
plaintiff's "anti-vaccination beliefs are not religious" but providing " [t]his iS-not to say that antivaccination beliefs cannot be part of a broader religious faith; in some circumstances, they can,
and in those circumstances, they are protected")); see also Brown v. Child. 's Hosp. of Phila., 794
F. App'x 226, 227 (3d Cir. 2020) (" [I]t is not sufficient merely to hold a ' sincere opposition to
vaccination' ; rather, the individual must show that the ' opposition to vaccination is a religious
belief. "' (quoting Fallon, 877 F.3d at 490)); Griffin v. Massachusetts Dep't of Revenue, 2023 WL
4685942, at *5 (D. Mass. July 20, 2023); Ellison v. !nova Health Care Servs. , 2023 WL
6038016, at *6 (E.D. Va. Sept. 14, 2023) (A plaintiff should "provide[] sufficient allegations
regarding [their] subjective personal beliefs, how those beliefs are related to [their] faith, and
how those beliefs form the basis of [their] objection to the COVID-19 vaccination."). Defendant
argues that Plaintiff's objection to the vaccine stems from Plaintiffs personal moral code rather
than from her religious beliefs.3 (D.I. 13 at 8-15 ; D.I. 16 at 5-9).

3

Defendant does not challenge Plaintiff's assertion that her religious faith of non-denominational
Christianity meets the Africa test. Rather, Defendant argues the beliefs on which Plaintiff's
objection to the vaccine is based are secular beliefs based on Plaintiff's personal moral code, as
8

Plaintiff's exemption form states, "God has created my being and I choose what I
introduce into my body at all times." (D.I. 6-1 , Ex. A, at 4 of 4 (quoting 1 Corinthians 6:19 ("Do
you not know that your body is a temple of the Holy Spirit, who is in you, whom you have
received from God."))). Plaintiff asserts, "I consider my body to be a blessed and sacred gift
from God and I do not believe that God would want me to receive this vaccine." (Id. (quoting 1
Corinthians 6:20 ("For you were bought with a price. So glorify God in your body."))). She
continues, "I must honor my creator, God, with my body, mind and spirit and decide what I
allow to enter my body by putting my God first. " (Id. ).
Plaintiff's objections to the COVID-19 vaccine derive from her beliefs that "God would
- -~not] want me to receive- this vaccine" and that she honors God by being the-one to "choose" or
"decide" what is allowed to enter her body. Plaintiff effectively claims a religiously protected
right to make her own judgment about receiving the vaccine. Allowing Plaintiff this type of
"God given right to make [her] own choices," Finkbeiner, 623 F. Supp. 3d at 465 , would enable
Plaintiff to "make [her] own standards on matters of conduct in which society as a whole has
important interests." Africa, 662 F.2d at 1031 (citing Yoder , 406 U.S. at 215-16). " [T]he very
concept of ordered liberty" precludes this result. Africa, 662 F .2d at 1031.
Plaintiff's assertion that she has "prayed about how to accept the COVID-19 vaccine"
and believes "that accepting the vaccine would be a violation of [her] conscious and relationship
with God" does not save her claim. (D.I. 6-1 , Ex. A, 4 of 4; see also id. ("I believe in God. I
believe the Holy Spirit lives in me. As in James 1:5 , I believe in God' s promise that 'if anyone

opposed to religious beliefs that form a part of Plaintiff's Christian faith. (See D.I. 13 at 8- 15 ;
D.I. 16 at 5-9). I therefore address only the questions at issue: whether Plaintiff has sufficiently
connected her objection to the vaccine to a religious belief tied to her Christian faith or whether
the beliefs that form the basis of Plaintiff's objection would otherwise satisfy the Africa standard.
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lacks wisdom, let him ask God, who gives to all liberally. "')). Allowing Plaintiff the ability to
object to anything based on the practice of "praying on it" would again amount to the type of
"blanket privilege" that does not qualify as religious belief under Africa. Griffin, 2023 WL
4685942, at *6-7. Several other district courts handling similar religious discrimination cases
involving the COVID-19 vaccine have also found such beliefs amounting to "blanket privileges"
do not qualify as religious beliefs. See, e.g., Lucky v. Landmark Med. of Mich. , P. C. , 2023 WL
7095085, at *4-7 (E.D. Mich. Oct. 26, 2023); Ellison, 2023 WL 6038016, at *5 ; Ulrich v.
Lancaster Gen. Health , 2023 WL 2939585, at *5 (E.D. Pa. Apr. 13, 2023); Blackwell v. Lehigh
Valley Health Network, 2023 WL 362392, at *8 (E.D. Pa. Jan. 23 , 2023); Finkbeiner, 623 F.
- - - -Supp. 3d at 465.-

-

Plaintiff's counsel argued that whether a belief amounted to a "blanket privilege"
presents an issue of sincerity that should be reserved for a jury. (Hearing Tr. at 33 :3-14). The
Africa court, however, indicated that a principal reason that courts engaged in the practice of
making "uneasy differentiations" between religious and nomeligious beliefs was to prevent any
individual from retaining a "blanket privilege 'to make his own standards on matters of conduct
in which society as a whole has important interests. "' See Africa, 662 F .2d at 1031. I find it
proper to consider this question when dealing with religiosity. As noted above, other district
courts have likewise examined the "blanket privilege" question at the motion to dismiss stage.
For the reasons stated above, I find Plaintiff's Complaint does not plausibly allege that
Plaintiffs objection to receiving the COVID-19 vaccine was based on a sincerely held religious
belief. At oral argument, Plaintiffs counsel agreed that, in the event that I found a plaintiff had
not adequately pled a religious belief, dismissal with prejudice was the proper path forward.

(Hearing Tr. at 65:1-9). I will therefore dismiss Plaintiffs failure to accommodate claim under
Title VII with prejudice.
B. Disparate Treatment

Defendant argues that Plaintiff has failed to sufficiently plead a religious discrimination
claim under Title VII based on disparate treatment. (D.I. 13 at 15). Plaintiff states that she has
not yet pled disparate treatment. (D.I. 14 at 19-20). I agree with Defendant that Plaintiffs
assertion of "differential treatment" presents some confusion about whether a disparate treatment
claim has been raised. (D.I. 16 at 9 n. 21). Nevertheless, since Plaintiff states she is not now
pleading disparate treatment, I accept that she is not, and I will dismiss Defendant's argument as
moot.
C. Plaintiff's DDEA Claims

A federal court has supplemental jurisdiction over a state law claim when the claim
"arise[s] out of a common nucleus of operative fact" with the claims over which the court has
original jurisdiction. United Mine Workers ofAm. v. Gibbs, 383 U.S. 715, 725 (1966); see 28
U.S.C. § 1367(a). A federal court "may decline to exercise supplemental jurisdiction over a
claim ... if ... the district court has dismissed all claims over which it has original jurisdiction .
. . ." 28 U.S.C. § 1367(c)(3). Given my disposition of Plaintiffs Title VII claims, I decline to
exercise supplemental jurisdiction over Plaintiffs remaining DDEA claims. I will dismiss
Plaintiffs claims under Count II without prejudice.
IV.

CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss (D.I. 12) is GRANTED in part
and DISMISSED as moot in part.
An appropriate order will issue.

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