Berna v. Bayhealth Medical Center, Inc.

Filing 11

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARJORIE A. BERNA, Plaintiff, I Civil Action No. 23-945-RGA I V. I BAYHEAL TH MEDICAL CENTER, INC., Defendant. MEMORANDUM OPINION I Gary E. Junge (argued), SCHMITTINGER & RODRIGUEZ, J>.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; There~a M. Zechman, STEVENS & LEE, P.C., Lancaster, PA, I Attorneys for Defendant. ,,,.-February~ ,2024 1 Before me is Defendant' s Motion to Dismiss. (D.I. 6)., I have considered the parties' briefing. (D.I. 7, 8, 9). 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 Complaint (D.I. 1) alleges the following facts. On August 12, 2021 , Governor John Carney ordered all Delaware state health care employees either to become vaccinated for the COVID-19 vi1 s 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 t~ taking the vaccine. Pursuant to Defendant's vaccination policy, employeeJ 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. 1-1, Ex. A). Employees could attach additional materials, such as letters from religious leaders, to support their exemption request. (Id.) . I Employees who had their religious exemption requests rejected, and continued to refuse the COVID-19 vaccine, were terminated on February 28, 2022. Plaintiff subsequently filed the 1 Citations to the transcript of the argument are in th: format 'f earing Tr. at _ ." 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 di~miss Plaintiffs claims pursuant to FED. R. CIV. P. 12(b)(6). (D.I. 6). 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. C1v. 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 (er n 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 consistent with a defendant's liability, it stops short of the line!between possibility and I plausibility of entitlement to relief." (internal quotation marks omitted)). 3 B. Failure to Accommodate I I Title VII makes it unlawful for an employer to discrimjnate 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. § 2000e(j). To establish a prima facie case of religious discrimination under Title VII based on a failure to accommodate theory, an employee must show that (l) 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 "disciplJ ed for failing to comply with the conflicting requirement." Fallon v. Mercy Cath. Med. Ctr. ofSe. 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) I (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. See~er, 380 U.S. 163, 185 (1965)). With respect to the first prong of this 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). 4 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 103 5. " [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 imponderab1e matters," (2) "are comprenensive 1n 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 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 5 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, maiv1auals may nave re1igiousoe1iefs wliicn are not w1aely 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 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 Plaintiff follows a recognized religion that already meets the three Africa factors. (See D.I. 1 ,r 17). 2 6 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 VIL" 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., 24 7 F. App'x 328, 329 n. 1 (3d Cir. 2007); Hyland v. Smyrna Sch. Dist., 608 F. App'x 79, 83 n. 5 (3d 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 Co7l. ofNJ., 260--P3aL65 , 281-82 (3a Cir. 2D0I). Depenaing on wbeffier tlie p1aiiififf proceeds under a pretext or mixed-motive theory, they must ultimately prove that their protected status was either a "motivating" or a "determinative" factor in the employer' s challenged action. Connelly, 809 F.3d at 787-88. III. 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 7 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 plaintiffs "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, 2023 WL 4685942, at *5 ; 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 --Plamfiff s persona1 moral coae raffier than from ner reTigiousoeiiefs. 3 (DI. 7 at 7-14;DT 9 at 5-7). 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 opposed to religious beliefs that form a part of Plaintiff's Christian faith. (See D.I. 7 at 7-14; D.I. 9 at 5-7). 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. 8 Plaintiff identifies three categories of beliefs which she argues qualify as religious beliefs.4 (See D.I. 10 at 6 (placing Plaintiff under the "Created in the Image of God," "Cannot change God Given Immune System/Healing Power rests with God," and "Cannot Defile Body Because it is a Temple of the Holy Spirit" categories); D.I. 1 ,i 19). For the following reasons, I find Plaintiff has failed to adequately plead facts that show any of these categories are religious beliefs that form the basis of her objection to the COVID-19 vaccine. 1. "God-given Immune System" Belief Plaintiffs exemption request form states, "I am created in the image of God and hold fast to His assurance, that He is my provider, protector, healer and physician." (D.I. 1-1 , Ex. A, at 2 of 7). Plaintiff states that both her mother and her "have been exposed to [COVID-19] positive" individuals, and, "God has fully protected us both from transmission." (Id. at 7 of 7). Plaintiff, however, fails to explain how her religious beliefs prohibit her receiving the COVID-19 vaccine. Instead, Plaintiff focuses largely on Plaintiffs concerns with the "potential . .. adverse physical health outcomes" from receiving a vaccination "that normally would undergo 5 years of cliriicafresearch." (Id. at 6 of 7). 1'1ainfiff s form spends a suostantial amount of space discussing scientific studies of the vaccine: I have researched available information on this vaccination, and as medical professionals, we are all aware, it is changing and developing as more time goes on and more individuals are vaccinated. The CDC site itself states, "We're still learning." There are over 800,000 reports ofCOVID-19 vaccine-related injuries to VAERS. Research out of China reveals high concentrations of components of the vaccine in specific organs, such as the brain, the uterus in women and the liver. 4 Plaintiff's exemption request form discusses the American Nurses Association ("ANA") Code of Ethics. (D.I. 1-1 , Ex. A, at 6 of 7). Plaintiff does not argue that this code of ethics is part of her religious belief system in her briefing and instead focuses on the beliefs arising from her Christian faith. (See D.I. 8 at 1-2, 15; see also D.I. 1 ,i 19; D.I. 10 at 6). I will therefore treat the beliefs arising out of the ANA Code of Ethics as secular beliefs (excepting those beliefs that overlap with religious beliefs stemming from Plaintiffs Christian faith) for the purposes of this motion. 9 Since there are known coagulation problems related to COVID-19, this vaccination has the potential to affect coagulation in vaccinated individuals, as the liver synthesizes all coagulation factors and their inhibitors. I am personally seeing an increase in patients presenting with pulmonary emboli. I personally know multiple vaccinated women with increased vaginal bleeding and new diagnosis of uterine hyperplasia. There are also reports of myocarditis and pericarditis in young men after receiving the vaccine, prompting Finland, Sweden and Denmark to stop administering the Moderna vaccine. In June the United States Federal (sic) Drug Administration added a warning to the fact sheets for the Pfizer/Bio tech and Moderna rnRNA-based COVID-19 vaccines about the risks for both myocarditis and pericarditis. There are also similar studies and results out of Israel. If these health conditions were presenting during clinical trials, the trials would be stopped and the participants told and protected (veracity and nonmaleficence). The current vaccines have waning efficacy requiring boosters which will soon too be mandated. Dr. Anthony Fauci has just reported vaccinated individuals are in grave danger of developing COVID-19 due to the vaccines' waning efficacy and immunity. (Id. at 6-7 of 7). In addition to citing these scientific studies, Plaintiff also mentions that she has "5 peers that were all fully vaccinated that tested positive for [COVID-19]." (Id. at 7 of 7). Plaintiffs objection is "predicated fundamentally on her concerns with the safety of the vaccine." Passarella v. Aspirus, Inc., 2023 WL 2455681, at *5 (W.D. Wis. Mar. 10, 2023). Plaintiff does "not articulate any religious belief that would prevent her from taking the vaccine if she believed it was safe." Id. Plaintiff's focus on the efficacy and potential harm caused by the vaccine demonstrate that Plaintiffs objection to the vaccine is based on scientific and medical beliefs. These beliefs do not qualify as religious beliefs under Africa. "It takes more than a generalized aversion to harming the body to nudge a practice over the line from medical to religious." Geerlings, 2021 WL 4399672, at *7; see also Fallon, 877 F.3d at 492. "The notion that we should not harm our bodies is ubiquitous in religious teaching, but a concern that a treatment may do more harm than good is a medical belief, not a religious one." Geerlings, 2021 WL 4399672, at *7 (quoting Fallon, 877 F.3d at 492) (cleaned up). At oral argument, Plaintiff's counsel took the position that " [h]arming my body is the religious belief' expressed by Plaintiff. (Hearing Tr. at 34:15-35:12 ("[I]fl believe [the vaccine] 10 is going to cause long-term harm to my body, then my truly-held religious belief is that my body is a temple of the Holy Spirit, and I should put nothing in my body that's going to harm it. That's religious belief.")). Plaintiff also repeatedly asserts that she "invoke[s] God in all aspects of [her] life" and that she "seek[s] God' s counsel in all things in reverent submission to Him in all things." (D.I. 1-1 , Ex. A, at 5, 7 of 7 (citing Hebrews 5:7); see id. at 2 of 7 ("I seek God in ALL things. I do not use the word religion as others do because I don't practice religion, I live my faith."); id. at 6 of 7 ("I have shared that I do all things as I am working for God not man.")). Plaintiff's argument effectively seeks to "cloak[] with religious significance" her concern that the vaccine will harm her body. Africa, 662 F.2d at 1035. The Third Circuit has already rejected such a position. Id. (explaining "[t]he notion that all of life' s activities can be cloaked with religious significance" cannot transform an otherwise secular idea into a religious belief). Several other district courts handling similar religious discrimination cases involving the COVID-19 vaccine have also found such medical judgments do not qualify as religious beliefs. See, e.g., McKinley v. Princeton Univ., 2023 WL 8374486, at *4 (D.N.J. Dec. 1, 2023); Ellison, - 202TWL 6038016, at *5 ; Winans v. Cox Auto, Inc., 2023 WI: 2975872, at *4 (E:D. -Pa. Apr. 17, 2023); Ulrich v. Lancaster Gen. Health , 2023 WL 2939585, at *5 (E.D. Pa. Apr. 13, 2023); Passarella, 2023 WL 2455681, at *5-7; Geerlings, 2021 WL 4399672, at *7; contra, Aliano, 2023 WL 4398493 , at *8-9. Plaintiff insists that she has a "God given right over [her] body and the right to refuse a vaccination." (D.I. 1-1, Ex. A, at 6 of 7; see also id. ("I believe in an individual' s right to choose what is best for them and their family.")) . Plaintiff also asserts, " I have an unsettled spirit about this vaccination and have prayed continuously for God to reveal His heart and guide me in this and every decision I make." (Id. at 2 of 7). She goes on to say, "I have asked God fervently to 11 take this burden of the vaccine from me and He has not, in fact I feel more moved to obedience to God in this situation, than when the vaccine was first discussed." (Id.). Neither of these assertions save Plaintiffs claim. Allowing Plaintiff a "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. Allowing Plaintiff the ability to object to anything based on the practice of "praying on it" would likewise amount to the type of "blanket privilege" that does not qualify as religious belief under Africa. Several other district courts handling similar religious discrimination cases involving the COVID-19 vaccine have also found such beliefs to amount to "blanket privileges" that do not qualify as religious beliefs. See, e.g., Luckyv. 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 , 2023 WL 2939585, at *5; Blackwell v. Lehigh Valley Health Network, 2023 WL 362392, at *8 (E.D. Pa. Jan. 23, 2023); Finkbeiner, 623 F. Supp. 3d at ~ Ll-65 . --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 nonreligious 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. 12 2. "Image of God" Belief Plaintiffs exemption form states, "I am created in the image of God and hold fast to His assurance, that He is my provider, protector, healer and physician." (D.I. 1-1 , Ex. A, at 2 of7). Plaintiff, however, provides no information regarding how this "Image of God" belief prohibits her from receiving the COVID-19 vaccine. The context of the single relevant sentence in the exemption form suggests some overlap between this belief and Plaintiffs "God-given Immune System" belief. To the extent such overlap exists, as discussed in the prior section, Plaintiffs exemption form largely focuses on her concerns regarding the vaccine' s efficacy and potential adverse effects, her "right to choose" whether to receive the vaccine, and her practice of "ask[ing] God fervently to take this burden of the vaccine from me." Such beliefs do not qualify as religious beliefs under Africa. See supra Section III.A. I. 3. "Body is a Temple" Belief Plaintiffs exemption form states, "[M]y body is a temple of the Holy Spirit, gifted to me by the death ofmy savior, who died in my place for the forgiveness of my sins." (D.I. 1-1 , Ex. A, at 2ofT( e1fing 1 Cminiliians o:T9 ("Do you not know that yomoodies are temp1es of The Holy Spirit, who is in you, whom you have received from God? You are not your own.")). Plaintiff, however, provides no information regarding how this "Body is a Temple" belief prohibits her from receiving COVID-19 vaccine. "Plaintiff does not describe her religious beliefs or principles in any meaningful way, or how they relate to vaccines generally, or the COVID-19 vaccine specifically." Griffin, 2023 WL 4685942, at *7. Plaintiff "must provide more than conclusory allegations that a belief is religious; [she] must allege facts explaining how a subjective belief is religious in nature and connect [her] objection to that belief." Ellison, 2023 WL 6038016, at *7. 13 For the reasons stated above, I find Plaintiff's Complaint does not plausibly allege that Plaintiff's objection to receiving the COVID-19 vaccine was based on a sincerely held religious belief. At oral argument, Plaintiff's 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 Plaintiff's 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. 7 at 14). Plaintiff states that she has not yet pled disparate treatment. (D.I. 8 at 19-20). I agree with Defendant that Plaintiff's assertion of "differential treatment" presents some confusion about whether a disparate treatment claim has been raised. (D.I. 9 at 8 n. 18). 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 :-l'lainfifr 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. 14 IV. CONCLUSION For the foregoing reasons, Defendant' s motion to dismiss (DJ. 6) is GRANTED in part and DISMISSED as moot in part. An appropriate order will issue. 15

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